Evidence

Question 1

Which of the following is best definition of evidence?


(a) Material collected by the police at a crime scene

(b) 
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness

(c) 
Material used by the police to prove their case against the defendant

Answer 1

(b) 
Material used to (dis)prove a fact in issue or support/ undermine the credibility of a witness


Question 2

What are the facts in issue?

(a) 
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.

(b) 
The relevant issues that are admissible for the court to consider.

(c) 
The facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.

(d) 
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused.

Answer 2

(a) 
The facts the prosecution bear the burden of (dis)proving in order to establish the guilt of the accused and the facts that in exceptional cases, the accused bears the burden of proving in order to establish the defence.


Question 3

How might a fact be proved in court?

(a) 
Defence advocate says so

(b) 
Judicial notice

(c) 
Prosecutor says so

(d)
 Jury notice

Answer 3

(b) 
Judicial notice


Question 4

What are the different types of evidence?

Answer 4

(a) Oral evidence given by witness in court - most common
(b) Written form:
- Agreed statements - s. 9: Statement is then simply read out, and carries same weight as if witness has attended in person, sworn and give evidence from witness box
- Admitted facts - s. 10: Simply for advocated in case to agree that fact is so - fact is reduced to writing and both parties (lawyers, not witnesses) agree and sign agreement
(c) ‘Real’ evidence: objects and things which are brought to court for inspection
(d) ‘Direct’ evidence: evidence that witness gives of having had direct experience of matter in issue
(e) ‘Circumstantial’ evidence: evidence from which facts are inferred
(f) ‘View’: occasionally juries can visit scene of crime or leave court to view object that cannot be brought to court

Question 5

What does relevance mean in terms of evidence?

Answer 5

Relevance is established by whether evidence is ‘logically probative’ of fact in issue ie does evidence tend to prove or disprove fact in issue. If evidence is irrelevant, it is inadmissible - if it is relevant, it is admissible.

Question 6

Is there anything else that affects evidence’s validity besides relevance?

Answer 6

Exclusionary rules:
Having first considered relevance, you then consider whether relevant evidence is nonetheless subject to exclusionary rule - these rules protect fairness of trials to prevent evidence which is relevant, but should still not be admitted bc of effect on fairness of trial

Weight:
All evidence varies in terms of how strong, reliable and valuable it is. Attaching right degree of weight to piece of evidence is matter for jury - advocates typically devote considerable effort into persuading jurors as to what weight they should attach to evidence.

Question 7

True or false: the tribunal of fact determines the admissibility of evidence.

Answer 7

False - the tribunal of law decides it

Magistrates: magistrates or District Judge

CC: Judge

Question 8

Where will the legal burden of proof normally lie in a criminal case?

(a) 
Prosecution
(b) 
Defence

(c) 
Judge

Answer 8

(a) 
Prosecution

The general rule is that the prosecution bears the legal burden of proving all the elements of the offence necessary to establish guilt- the facts in issue (Woolmington v DPP [1935] AC 462). There are exceptions to this general rule.


Question 9

What is the standard of proof that is normally required in a criminal case?

(a) 
So that a jury are sure of guilt / Beyond reasonable doubt
(b) 
Balance of probabilities

(c) 
Beyond doubt

Answer 9

(a) 
So that a jury are sure of guilt / Beyond reasonable doubt

The prosecution must prove all the elements of the offence/ all the facts in issue beyond reasonable doubt, so that the tribunal of fact is satisfied so that it is sure (Woolmington v DPP [1935] AC 462).


Question 10

What is the evidential burden in criminal cases?

(a) 
The burden to prove all of the facts in issue

(b) The burden to adduce some evidence to put a fact in issue before the court
(c) 
The burden to prove all of the elements of the offence

Answer 10

(b) The burden to adduce some evidence to put a fact in issue before the court

Generally speaking a party bearing the legal burden on a particular issue will also bear the evidential burden, as a result it is the prosecution that tends to bear the evidential burden.


Question 11

True or false: the burden of proof for both the defence and the prosecution is beyond reasonable doubt.

Answer 11

False - it is for prosecution. For defence, it is on balance of probabilities.

Question 12

True or false: if the defence challenges the prosecution’s case, the burden of proof passes on to them.

Answer 12

False - Defence can call evidence and make positive assertions such as ‘it was not me’, ‘you’re lying’… and none of these mean that burden has passed to defence - simply that defence is engaging and contesting issues that prosecution has to prove.

Question 13

True or false: the defences of duress and alibi place the burden of proof on the defence.

Answer 13

Prosecution are not required to predict that defence of duress will be relied upon but if sufficient evidence is raised to leave it as live issue it is prosecution who must disprove it before reasonable doubt

In case of alibi, judge must direct jury although defence has raised defence, it is not matter for them to prove - prosecution retain burden of disproving alibi so jury are sure

Question 14

“A question of logic as to whether there is a sufficient relationship between the evidence and the fact in issue.”
To what concept does this statement refer?

(a) 
Relevance
(b) 
Weight

(c) 
Admissibility

Answer 14

(a) 
Relevance

Relevance relates to what is logically probative or disprobative of some fact in issue. However, evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it.


Question 15

Which of the following accurately represents the common law power for the courts to exclude evidence?

(a) 
When there have been significant and substantial breaches of PACE

(b) 
When the probative value of the evidence is outweighed by its prejudicial effect
(c) 
When the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Answer 15

(b) 
When the probative value of the evidence is outweighed by its prejudicial effect

s. 82(3) PACE: Preserves common law discretion of courts to exclude evidence where its prejudicial effect outweighs its probative value - includes discretion to exclude if it is necessary to secure fair trial for accused.

Question 16

Some evidence is deemed by its nature to be inadmissible per se. What kind of rule would you need in order to admit evidence of this nature?

(a) 
An exclusionary discretion

(b) 
An inclusionary rule

(c) 
An exclusionary rule

Answer 16

(b) 
An inclusionary rule


Question 17

What is the test for applications of dismissal and when can you submit such applications?

Answer 17

Such application can be made:
(a) Only after D is sent by magistrates for trial to CC;
(b) Only after D has been served with evidence relating to offence; and
(c) Only before D is arraigned (ie offence is put to D and D pleads guilty or not guilty)

Amounts to same test to be applied where defence make submission of no case to answer as set out in R v Galbraith, namely that judge should stop case:
1. Where there is no evidence that crime has been committed by D or
2. Where prosecution evidence, taken at its highest, is such that properly directed jury could not properly convict on it

If successful, charged against D are dismissed

Question 18

What is the test for an application of no case to answer and when can it be brought?

Answer 18

During trial and after prosecution has presented all of this evidence, defence are entitled to submit to judge that there is no case to answer on any one or all charged faced by D. Application can be made to magistrates and CC.

Test:
- First limb: Where there is no evidence to support charge then there will be no difficulty in stopping case
- Second limb: Where there is some evidence, however, about integrity of evidence that is open to question is where difficulty arises - this is where judge/magistrates will have to consider whether that evidence, taken at its highest is such that conviction can be properly founded upon it. Eg where witness has given inherently weak, vague or contradictory evidence, or where credibility of witness is open to question, such as evidence presented by prosecution could not properly found convention.

Question 19

Can the court acquit a case on its own initiative if it finds that the evidence is inadequate?

Answer 19

Yes
Magistrates procedure contained in CrimPR r.24.3(3)(d)
Crown Court is in CrimPR r.25.9(2)(e)

Both provide that, at conclusion of prosecution case, on D’s application or its own initiative, court:
(a) May acquit on ground that prosecution evidence is insufficient for any reasonable court to properly convict but
(b) Must not do so unless prosecutor has had opportunity to make representations (ie prosecution must be given right to reply to applicant)

Question 20

What is the test for an abuse of process application and what is the outcome if successful?

Answer 20

There are two categories of case in which court has powers to say proceedings for abuse of process:
1. Where court concludes that accused can no longer receive fair hearing and
2. Where it could otherwise be unfair to try accused or, put another way, where stay is necessary to protect integrity of criminal justice system

If successful, it leads to stay of proceedings meaning that prosecution’s case will not be able to proceed.

Abuse of process applications mainly dealt with in CC (where application is to stay indictment as abuse of process. They can however, be brought into magistrates but only on ground that D is unable to have fair trial (and not on grounds that integrity of justice system had been brought into disrepute - application on this basis would have to be made to Divisional Court by way of judicial review.

Question 21

Which of the following uses the Galbraith test?

(a) 
Submission of no case to answer

(b) 
Abuse of process application

(c) 
Application to exclude evidence under the common law

(d) 
Application to exclude a confession

Answer 21

(a) 
Submission of no case to answer


Question 22

Who can make an application under s.78 PACE 1984 to exclude evidence?

(a) 
A co-defendant in relation to evidence on which a defendant proposes to rely

(b) 
The defendant in relation to evidence on which the prosecution proposes to rely
(c) 
The prosecution in relation to evidence on which the defence proposes to rely

Answer 22

(b) 
The defendant in relation to evidence on which the prosecution proposes to rely

Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.


Question 23

What would be the appropriate application to make where the police have deliberately destroyed evidence that would have assisted the defence?

(a) 
Submission of no case to answer

(b) 
Application for dismissal

(c) 
Abuse of process application

Answer 23

(c) 
Abuse of process application

An application to stay the indictment, in this case because continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.

Question 24

To which of the following types of evidence does a s.78 application relate?

(a) 
Exclusion for oppression

(b) 
Exclusion of unfair evidence
(c) 
Exclusion for unreliability

Answer 24

(b) 
Exclusion of unfair evidence

Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.


Question 25

Who can make an application under s.78 PACE 1984 to exclude evidence?

(a) 
The defendant in relation to evidence on which the prosecution proposes to rely Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

(b) 
The prosecution in relation to evidence on which the defence proposes to rely

(c) 
A co-defendant in relation to evidence on which a defendant proposes to rely

Answer 25

(a) 
The defendant in relation to evidence on which the prosecution proposes to rely

Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded. Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.


Question 26

If evidence has been irregularly obtained for example in breach of PACE or the Codes of Practice does this render it inadmissible per se under s.78 PACE 1984?

(a) 
Yes

(b) 
No

Answer 26

(b) 
No

Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 27

What is the key test under s. 78 PACE and what is it concerned with?

Answer 27

Concerned with fundamental concept of fairness and is principal and most important means by which defence can seek to have prosecution excluded. Only applies to evidence on which prosecution proposes to rely so it cannot be used by prosecution or co-D seeking to exclude evidence that D seeks to admit.

Key test: whether admission of evidence would have such adverse effect on fairness of proceedings that court ought not to admit it

Examples:
1. Fundamental right of access to legal advice has been improperly denied
2. Where waiver of right of access to legal advice was not voluntary, informed or unequivocal
3. Where there has been failure to caution suspect before questioning
4. Where appropriate adult has not been provided for youth, mentally disordered or mentally vulnerable suspect
5. Where identification procedures have not been followed

Question 28

True or false: More significant and substantial the breach, the more likely it is to result in unfairness and thus exclusion.

Answer 28

True

Question 29

When can s. 78 application the brought?

Answer 29

Application can be made:
(a) Before trial
(b) At commencement of trial or
(c) Just prior to prosecution seeking to admit evidence which defence wish to be excluded

Where application to exclude under s. 78 would, if granted, result in the prosecution case being fatally weakened (bc prosecution would be left with no/insufficient remaining evidence to proceed) a judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn

Key point is that s.78 application should be made before the evidence to which objection is taken is adduced

Question 30

What is a voir dire and when is it held?

Answer 30

Hearing evidence in this way on a legal argument is called a trial ‘on the voir dire’ (commonly referred to simply as a ‘voir dire’) - type of mini-trial or ‘trial within a trial’. Evidence called by prosecution and defence will relate only to matters in dispute - witnesses testify on special form of oath/affirmation ‘that I will true answer make to all such questions as the court shall demand of me’.

CC: where there is dispute on facts between defence and prosecution, judge will not be able to determine s. 78 application until factual matter has been resolved - eg if D is advancing argument that police acted in way that was in breach of PACE codes but police officers concerned deny this, then judge will have to hear evidence and make decision on facts before judge can decide how the law should be applied.

Question 31

Which of the following does not fall under the definition of a confession?

(a) 
Wholly exculpatory statements
(b) 
A nod

(c) 
Unequivocal confessions of guilt

(d) 
Partly inculpatory and partly exculpatory

Answer 31

(a) 
Wholly exculpatory statements

This does not fall within the definition of a confession. Words such as ‘it was nothing to do with me’.


Question 32

Which of the following will not be a thing said or done for the purpose of proving that a defendant’s confession is unreliable under s.76(2)(b) PACE 1984?

(a) 
The suspect making an admission following a promise they will get bail if they do

(b) The suspect making an admission because they consider this is likely to get them bail
(c) 
The suspect making an admission under threat that other family members will be arrested unless they do so

(d) The suspect being interviewed without an appropriate adult when one is necessary

Answer 32

(b) The suspect making an admission because they consider this is likely to get them bail

This is not a thing said or done for the purpose of proving that a defendant’s confession is unreliable under s.76(2)(b) PACE 1984. The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).


Question 33

In relation to excluded confessions, which of the following is incorrect?

(a) 
The prosecution can rely on facts discovered as a result of the confession

(b) 
The prosecution can suggest to the jury that facts were discovered by reason of something said by the defendant
(c) 
The prosecution can use part of the confession to show the speech, writing or expressions of the accused

Answer 33

(b) 
The prosecution can suggest to the jury that facts were discovered by reason of something said by the defendant

To do so would be to circumvent the exclusion of the confession itself. It would be unacceptable for the prosecution to say, for example, ‘members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’


s. 76(4) PACE: fact that confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence-
‘(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.’

Question 34

What is the definition of a confession?

Answer 34

Includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

Deliberately wide and following will fall within definition:
(a) Unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’)
(b) Mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’) - fall within definition bc they are partly adverse to the maker
(c) Depending on context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words

Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a confession

Question 35

What are the two ways to challenge a confession under s. 76 PACE?

Answer 35

Under s. 76(2)(a): oppression or

Under s. 76(2)(b): anything said or done which was likely, in circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof

Question 36

True or false - s. 76 arises automatically to challenge confessions.

Answer 36

False - it only operates where it is represented to court that s. 76(2)(a) or (b) apply

Question 37

Can the court exclude a confession on its own initiative?

Answer 37

Yes. s. 76(3) provides that court can itself require prosecution to prove that confession was not obtained as set out in s. 76(2)(a) or (b)

Question 38

What is the definition of oppression?

Answer 38

Oppression widely defined in s. 76(8): includes torture, inhuman or degrading treatment and use or threat of violence (whether or not amounting to torture) - reflects ECHR 3

What might be oppressive to one person might not be oppressive to another, so it is legitimate to consider character and attributes of accused

Question 39

What is the best way to approach cases under s. 76(2)(b)?

Answer 39

1. To identify thing said or done, which requires trial judge to take into account everything said and done by police
2. To ask whether what was said and done was likely in circumstances to render unreliable confession made in consequence - test is objective taking into all circumstances
3. To ask whether prosecution has proved beyond reasonable doubt that confession was not obtained in consequence of thing said and done, which is question of fact to be approached in common sense way

Question 40

Can the defence seek to exclude evidence of a confession under s.76 and s.78 PACE 1984?

(a) Yes
(b) 
No

Answer 40

(a) Yes

It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78. Making an application to exclude evidence of a confession under s.76 does not preclude the defence from also making an application to exclude evidence of a confession under s.78.


Question 41

In principle, does s.76 ors.78 PACE 1984 exert a broader protective sweep for the defendant?

(a) 
s.78
(b) 
s.76

Answer 41

(a) 
s.78

Section 78 PACE allows a court to examine a case from a perspective of overall fairness, including oppression or unreliability engaged under s.76 PACE 1984.


Question 42

If evidence has been irregularly obtained for example in breach of PACE or the Codes of Practice does this render it inadmissible per se under s.78 PACE 1984?

(a) 
No
(b) 
Yes

Answer 42

(a) 
No

Simply because evidence has been irregularly obtained in breach of PACE or the Codes of Practice do not render it inadmissible per se. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.


Question 43

What is the standard time for any defence skeleton argument in support of an application to exclude evidence of a confession in the magistrates’ court?

(a) 
10 business days before trial
(b) 
At the Further Case Management Hearing

(c) 
At the Plea and Trial Preparation Hearing

Answer 43

(a) 
10 business days before trial

This time limit is contained on the magistrates’ court ‘Preparation for Effective Trial’ form and not within any specific criminal procedure rule, although Criminal Procedure Rule 1.1 contains the ‘overriding objective’ which includes dealing with cases efficiently and expeditiously.


Question 44

At what point in the trial process will an application under s.76 PACE 1984 be dealt with in the magistrates’ court?

(a) 
As a preliminary issue
(b) At a pre-trial hearing listed specifically for this purpose

(c) During the trial itself

Answer 44

(a) 
As a preliminary issue

In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.


Question 45

If the evidence founding the application is in dispute, when do judges have a discretion to hear all the evidence then decide on the admissibility of evidence?


(a) An application under s.78 is made in a magistrates’ court
(b) 
An application under s.76 or both s.76 &s.78 is made in a magistrates’ court

(c) 
An application under s.76 or both s.76 & s.78 is made in the Crown Court

Answer 45

(a) An application under s.78 is made in a magistrates’ court

If the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage.


Question 46

True or false: It is perfectly appropriate and common practice for defence to seek to exclude evidence of confession under s. 76 and as alternative s. 78.

Answer 46

True

Question 47

What is advance notification for applications to exclude evidence and what are the time limits for it?

Answer 47

CPIA 1996, s. 6A: requires that defence statement (optional in magistrates and mandatory in CC) should include any points of law, including any point as to admissibility of evidence. Plea and Trial Preparation Hearing or Further Case Management Hearing at CC, judge will review Defence Statement and is likely to order, with time limits, defence to serve skeleton argument in support of any s. 76/78 arguments and prosecution will serve response to same.

When dealing with case management in magistrates, standard case preparation limits require any defence skeleton argument in support at least 10 business days before trial and prosecution response 5 business days after that

Question 48

When can an application to exclude a confession be made?

Answer 48

In CC: application to exclude confession can be made at pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening case to jury and in absence of jury. Alternatively, application can be made during trial itself where there is no pressing need to deal with it at outset.

In mags: any application under s. 76 should be dealt with as preliminary issue

Question 49

When is voir dire needed in relation to exclusion of evidence applications?

Answer 49

Mags: where application is under s. 76 or both s. 76 and 78 and evidence is disputed, they should hear evidence on both matter and decide applications as preliminary issue. However if application is only under s. 78, they have discretion to hear all evidence in usual way and decide upon admissibility at later stage.

CC: voir dire required where application is made under s. 76 or both s. 76 and 78 and evidence founding application is in dispute.

Question 50

Which case provided guidelines about how disputed evidence of eye-witness identification should be treated with caution?

(a) 
R v Turnbull

(b) 
R v Vye

(c) 
R v Twist

Answer 50

(a) 
R v Turnbull


Question 51

The judge agrees with the defence advocate that the ID evidence in the case is of poor quality.
Which of the following would not carry much weight as the judge decided whether on to accede to the defence submission of no case to answer?


(a) Whether the witnesses seem honest and convincing
(b) 
Whether there is other evidence to support the correctness of the
(c) 
Whether there is sufficient evidence upon which a jury properly directed could convict

Answer 51

(a) Whether the witnesses seem honest and convincing

Honest and convincing witnesses can still be mistaken. The identification evidence can have weaknesses and deficiencies but there must be sufficient evidence upon which a jury properly directed could convict. The judge will consider if there is other evidence to support the correctness of the identification.


Question 52

Prosecution counsel concedes that individual identifications of the defendant are of poor quality. However, prosecution counsel draws the judge’s attention to the fact that there are multiple identifications of the defendant by different witnesses and relies on this in arguing that the defence’s submission of no case to answer must fail.
Is prosecution counsel correct?


(a) Yes- it is permissible for two or more disputed identifications to be treated as mutually supportive of each other

(b) 
Yes- identification by two or more witnesses carries more weight than one

(c) 
No- the prosecution counsel has conceded that the individual identifications are of poor quality

Answer 52

(c) 
No- the prosecution counsel has conceded that the individual identifications are of poor quality

It is permissible for two or more disputed identifications to be treated as mutually supportive of each other. Identification by two witnesses carries more weight than one. However, each separate identification must be of a quality that can safely be left to the jury to assess. If prosecution counsel is conceding that all of the identifications are of poor quality, they cannot be viewed as being mutually supportive.

Question 53

When should a Turnbull direction be given?

Answer 53

Should be given when case against accused depends ‘wholly or substantially’ on correctness of visual identification

This usually means those situations where D was picked out in formal ID procedure but maintains that witness was mistaken in that identification

Turnbull direction should be given even in cases of alleged recognition - where someone has seen stranger in street and thought they recognised the, even when on closer inspection they discover they were wrong

If presence at scene is admitted, but D disputes their role in incident, then likely that Turnbull direction will not be required

Question 54

True or false: Turnbull guidelines are used as a safeguard towards the credibility of witnesses giving evidence.

Answer 54

False - Guidelines aimed at assessing quality of identification

Question 55

What does a Turnbull direction entail?

Answer 55

Where case against accused person depends wholly or substantially on correctness of identification of accused which defence allege is mistaken: Judge should warn jury of special need for caution before convicting accused in reliance on correctness of identification, whenever prosecution case against accused depends wholly or substantially:
- On correctness of one or more identifications of accused; and
- Defence alleges identification to be mistaken

Question 56

Does a judge have the discretion to stop a case if it finds that at the end of the prosecution case, the evidence against the defendant is poor and unsupported?

Answer 56

Judges also required to examine state of identification evidence at close of prosecution case and to stop case if it is poor and unsupported

Question 57

What are the two questions judges ask in case of visual id?

Answer 57

1. What is quality of identification evidence?
2. Is there other evidence in support of correctness of identification?

Question 58

What is the acronym used to assess the quality of visual identification and what does it stand for?

Answer 58

ADVOKATE
A: Time during which witness had person under observation - time which witness could see person’s face
D: Distance between witness and person observed state of light
V: visibility at the time
O: Whether there was any interference with observation (eg either physical obstruction or other things going on at same time)
K: known or seen before -whether witness had seen D before and if so how many times and in what circumstances ie whether they had any reason to be able to recognise D
T: time lapse - length of time between original observation of person ie incident and identification by witness of D at identification procedure
E: Whether there is any significant difference between description witness gave to police and appearance of D ie error or material discrepancy

Question 59

Why does the determination of visual identification as good quality matter?

Answer 59

When quality is good, jury can be safely left to assess value of identifying evidence, regardless of whether there is other evidence to support it - provided that adequate warning was given about special need for caution

When quality is poor ie fleeing glance or observation made in difficult conditions, judge should consider whether there is other evidence to support correctness of identification
(a) If there’s not, judge should withdraw case from jury and direct acquittal
(b) If there is some supporting evidence, eg scientific, then judge can leave weak identification to jury to be assessed alongside supporting evidence

Question 60

What is dock identification and is it desirable?

Answer 60

= Identification of D by witness for first time in court - exceptional and rare

It is undesirable bc it leaves witness with no other alternative than D and fact that D is already standing in dock is highly prejudicial

Well-meaning witness may simply assume that person responsible for crime is D simply bc he is in dock

Judge has discretion to permit it