Collatoral evidence Flashcards
collateral evidence
an important consequence of the principle of relevance is evidence which raises collateral issues is inadmissable
Oswald v friars
similar in fact evidence generally inadmissible as collateral evidence. General character evidence is inadmissible. the question is what did A say to B not what did he say to C the fact that he said the same sort of thing to C does not seem to prove he said it to B
inglis v national bank of scotland
CIVIL similar of fact. not evidence of delict to show parties committed similar delict
Qualifications in cases of proof of adultery- prior to marriage def attempted adultery with paramor (partner) or anyone else might have probative value. as it demonstrates the def is an unchaste person. But cannot lead evidence solely on evidence.
second qual is in action of parentage
CIVIL
Knutzen v Maueitzen
previous facts with bearing on facts in issue are not collateral and are admissible. poor quality of deliveries to others held relevant as the defs other deliveries had been substandard
CIVIL
Makin v attorney english
CRIM body of a child found buried adopted in return for payment def argued children died of natural each time. pros used similar in fact evidence not to conclude that they were guilty but to REBUT the makin defence that the children died of purely natural causes.
Joseph v Attorney
charged uttering forged bank drafts. passing a forged checklist saying they were genuine he had done the same thing in Belgium NOT evidence of character But evidence there to undermine his defence of why the drafts were forged
Hm adv v Flanders
exctent of this rule is uncertain but used to show mens rea
Moorov v Hm ADV
previous criminal conduct either matter of referring to previous convictions or all related conduct subject to charge
evidence of character
distinction of character as bearing on FACT IN ISSUE and as relating to CREDIBILIITY.
also distinction between leading Evidence as to CHARACTER and RAISING Q of CHARACTER IN CROSS EXAMINATION
CIVIL evidence of Character
only where character is necessarly an issue defamation OR
Character of witnesses: this relates to credibility and usually in context of cross examine
CRIMINAL evidence of character
character of victim (COMPLAINER) : evidence admissible where relevant to defence there are restrictions for SEXUAL OFFENCES noted under s274-275 1995 act
hm adv v kay CRIM
thought she was about to be attacked by husband. previous assault committed upon her. Violent disposition? he was provoked?
Brady v Hm adv CRIM
alleging previous malice suggesting good reason. to far for the victim.
s.274 1995 act
restrictions on evidence relating to sexual offences.
s.1where 288C applies court shall not admit evidence if shows complainer has
A. bad character
B. sexual behaviour not part of charge
C. has at any time engaged in sexual behaviour as an inference that the complainer would have consented or is not credible as a witness
D or at any time has had a condition that would make them unreliable/ consenting to acts
2.defines complainer and sexual behaviour
s. 275(1) 1995 act
CRIM
exceptions to restrictions in s.274.
evidence only relate to SPECIFIC OCCARANCE of sexual behaviour or to SPECIFIC FACTS demonstrating:
complainers character
or any condition/ predisposition to which the complainer has been subject
B. facts relevant/ behaviour to establish whether accused is guilty
C. the probative value of the evidence sought to be admitted is likely to outweigh any risk of prejudice to proper admin of justice arising from its being admitted
s.275(2) 1995 act
CRIM EXCEPTIONS TO SS.274
a)defines sexual behaviour
b) is the proper admin of justice APPROPRIATE PROTECTION OF THE COMPLAINERS DIGNITY AND PRIVACY.
all facts relevant are put before the jury.
s.275(3) 1995 act
an application for the purpose of ss1 275 above shall be in writing and shall set out.
the evidence sought
the nature of any questioning
issues at the trial considered relevant
the inferences which the applicant proposes to submit to the court that it should draw from evidence
such other info kind specified
s.275(4) 1995 act
on such an application under s.275(3) to the accused or to any co-accused
s.275(5) 1995 act
when the court decides whether or not to admit the evidence, it shall do as if determining the admissibility of the evidence
s.275(7) 1995 act
where a court admits evidence under s.275(1)
it will outline the items of evidence/ the reason/ the issue of trial that are relevant
s275(8) 1995 act
275(6) evidence submission may be limited if it supports a specific inference
s.275(9) 1995 act
where questioning is allowed the court can at any time limit the questioning
ds v HM Advocate CRIM
PROS=s.274 sexual behaviour prior cohab is not evidence of consent to sexual behaviour.
DEF=-s.275 allows accused to apply to evidence that would offend s.274
-any such application must make clear why relevant and what it is.
275(1) only criteria met to prevent attack on victim character.
s.275(1)(c)(2) medical condition general tendency to behave in a certain way CANNOT ARGUE THAT VICTIM HAS PREDISP
HM adv v ronald
psychiatric evidence of earlier complaints = permissible under s.275
HM v M (no2) 2013 CRIM
previous false complaints previous convictions = a collateral q.
INADMISSABLE under COMMON LAW met 275 test
L v HM adv crim
Accused wanted to bring forward consensual sexual character with victim a year before
authority admissiable @ coomon law HELD attitudes have changed
Isolated sexual encounters should not be seen as admissible would never meet the threshold test of 275(1)
257C 1995 act
expert evidence as to subsequent behaviour of complainer in certain cases
any offence relating to 288C
and psychiatric illness
subsequent behaviour = any behaviour or statement not forming part of the acts the offence of which the proceedings relate
felber v lockhart
character of witnesses: do they have gen animosity to the accused. character such as individual would rarely be inadmissible apart from if deceased
gracie v stuart
reset stolen goods notorious receiver of stolen goods. character of a person not in court.
character of the accused
cant lead evidence that as the person has been a bad person they committed offence
reference to previous convictions
s.101 and 166
crown cannot make refernce to previous convictions of accused unless and until verdict of guilty .
if crown in breach conviction could be at risk. summary ignore solomn CASE @ RISK
Johnstone v Allan
breach accidental case= stands
Cordiner v HMadv
Faced a no of different charges decent alaby for the time of the offence in q.
he was in prison at time of offence.
crown reads out full defence including the charge for the first prison sentence.
trial abandoned.
corninary convicted of othwer charges by the jury.
APPEAL jury told about previous convictions.
JURY CONVICTIONS QUASHED!
crown may make refence to previous convictions of accused only:
where evidence is relevant in support of a substantive charge. OR
where evidence for the defence tends to establish good character or attacks the pros witness
Carberry v hm adv
charge to rob a bank. car from a person he met in prison. permissible to mention where he got it from cannot say anymore about where he got it from
Boustead v hm adv
driving while DQ indictment states convicted of driving offence and wasting police time APPEAL there was no need to include driving conviction
Quash conviction
varey v HM adv
indictment for breaking out of prison included length of sentence and crime that had been committed.
defence objected.
Court rejected.
Held crown had to establish the length of sentence
crim procedure act 270
where evidence for the defence tends to establish good character or attacks the pros witness
1995 s.266
CROSS EXAMININATION accused cannot be asked and need not answer any q relating to bad character or previous convictions
s.266(4)a 1995 act
exceptions proof of guilt of offence charged
s.266(4)(b) 1995 act
accused sets up his own good character.
accused attcks the character of the pros witness
such an attack maybe implied or direct. includes attack on complainer/ deceased victim
FORMER APPROACH by the Scottish courts in allowing this provision where the defence attacked the witnesses character as a necessary step in establishing a defence.
NOW more of a literal reading of statute discretion of the court whether trial is fair. see case law
legate v hm adv 1988
s. 266 (4) b accused attacks character of prosecution witness. statue give more literal reading.
nature of an offence the accused will whether it is necessary for them to conduct slurds on witness court opened up by protection court has BLIND discrescion to refuse tp allow the accused to cross examine. TEST= fairness AND
test= necessary an integral to defence ALL PARTS HAVE TO BE THERE FOR COURTS TO ALLOW ACCUSED TO CROSS EXAMINE.
Mcleish v HM adv 2016
use of 266(4) trial judge had been wrong it was not exercised REASONABLY mcleash was cross examined on past convictions
s.266(4)c 1995 act
accused gives evidence against co-accused losses protection. mcCourtney v Hm adv
s.275A 1995 act
accused [permitted to ask q about the sexual character of the complainer. DS V HM Adv
s270 1995 act
evidence of crim record and character of accused.
s.266
.accused as a witness
the accused can be a competent at every stage of the case
S.266b IS V IMPORTANT. if the def decided to ask q for the pros witness to try and impugne the character of the complainer then under s.266(5) the pros can call the accused as a witness.
s.5A nothing in 4/5shall prevent the accused from being required to answer q about past offences.
s.266(6) application shall be made in the ABSENCE of a Jury
s.275 A 1995 act
disclosure of accused previous convictions where the court q under 275
2. should be placed on the indictment/ summary proceeding
4.objections- substantial sexual element in the commission for the for the offence for which the accused has been convicted.
contrary to interests of justice
conviction does not apply to accused/ inadmissible summary proceedings accused does not admit conviction
relevant conviction
s.10 s.275A 1995 act. conviction for which s.288C applies. in EU
where there was a substantial sexual element present in the commission of any other offence in respect of which the accused has been previously convicted
H L Justice clark
sexual assults on woman and children evidence less credibile England presumption used to be no rape if claimant took to long to claim more likely to be true if closer to the time
