Evidence

Question 1

What are facts in issue?

Answer 1

Evidence is called by any party in order to prove the ‘facts in issue’. These are the facts that any party needs to prove in order to prove its case.

For the prosecution, the facts in issue are those that are needed to prove the offence charged.

Question 2

What is real evidence?

Answer 2

Simply means objects and things which are brought to Court for inspection.

Question 3

What is direct evidence?

Answer 3

Evidence that a witness gives of having had direct experience of a matter in issue.

Question 4

What is circumstantial evidence?

Answer 4

Evidence from which facts are inferred.

Question 5

What is an application for dismissal and when can it be made?

Answer 5

This is a pre-trial application to have the charges against a D dismissed. Such an application can be made:

-only after a D is sent by the magistrates’ court for trial to the Crown Court;

-only after the D has been served with the evidence relating to the offence; and

-only before the D is arraigned

Question 6

What is the test for dismissing a charge?

Answer 6

‘The judge shall dismiss a charge if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted’.

Question 7

What is the test for submissions of no case to answer as set out in R v Galbraith (1981)?

Answer 7

The submission has two limbs as follows:

-Either, that there is no evidence that a crime has been committed by the D; or

-That there is some evidence before the court, but it is tenuous or inconsistent in nature.

In those circumstances the Judge must consider whether the evidence, when taken at its highest, is such that the jury could not properly convict upon it.

If the answer to that is yes, then the case should not be allowed to continue, and the Judge should dismiss it.

In short, if despite giving the prosecution case the most generous of interpretations the case is still not strong enough to be capable of convincing a jury of guilt, then it should be dismissed.

Question 8

What is the test for the Court in deciding whether to exclude prosecution evidence under S78 PACE 1984?

Answer 8

The key test 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 9

When should a S78 application be made and what will be necessary once made?

Answer 9

A S78 application should be made before the evidence to which objection is taken is adduced.

A voir dire (mini-trial) will be necessary where there is a dispute on the facts between the defence and the prosecution.

Question 10

What is the definition of hearsay?

Answer 10

Hearsay is defined in s114 & s115 CJA 2003 as a statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated.

Question 11

What is the general rule regarding hearsay?

Answer 11

The rule against hearsay states that a statement made out of Court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule.

Question 12

What is the three part test in R v Twist (2011) as to whether a communication is hearsay?

Answer 12

1. Identify what relevant fact (matter) it is sought to prove.
2. Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises.
3. If yes, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true.

a. If yes, it is hearsay.
b. If no, it is not.

Question 13

When may hearsay be admissible?

Answer 13

Hearsay may be admissible if:

-the witness is unavailable (s116)

-it is a business document (s117), however the court has the discretion to exclude if it is satisfied that the statement’s reliability is doubtful (s117)

-it is in the interests of justice to admit it (s114)

Question 14

What conditions need to be met in order for hearsay evidence from an unavailable witness to be admissible?

Answer 14

-the relevant person is dead

-the relevant is person unfit to be a witness

-the relevant person is outside the UK and it is not reasonably practicable to secure his attendance

-relevant person cannot be found

-that through fear the relevant person does not give oral evidence in the proceedings, and the court gives leave for the statement to be given in evidence

Question 15

Describe public information as a common law exception to the rule against hearsay.

Answer 15

Admissible public information includes:

-published works dealing with matters of a public nature such as dictionaries and maps

-public documents such as public registers; and

-records such as court records and public treaties

Question 16

What is the res gestae rule and when is it admissible?

Answer 16

A statement is admissible as evidence of any matter stated if:

a) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

b) The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or

c) The statement relates to a physical sensation or a mental state

Question 17

What are examples of res gestae evidence?

Answer 17

Examples of res gestae evidence include:

-statements made by a witness who is so emotionally overwhelmed by the event that its unlikely they could distort or concoct the statement

-999 calls

-statements made by the complainant shortly after the incident captured on police body-worn cameras

Question 18

What is the definition of bad character?

Answer 18

References in this Chapter to evidence of a person’s bad character are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which-

(a) has to do with the alleged facts of the offence with which the D is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence

Question 19

What are the seven gateways through which evidence of the bad character of a D can become admissible?

Answer 19

1. All parties agree (no leave required)
2. D chooses to adduce evidence (no leave required)
3. Important explanatory evidence (leave required)
4. Relevant to an important matter in issue between D and prosecution (leave required)
5. Probative value between D and Co-Def (leave required)
6. Correct a false impression (leave is required)
7. D attacks another’s character (leave required)

Question 20

What are the three gateways through which evidence of the bad character of a non-D can become admissible?

Answer 20

1. Important explanatory evidence (leave required)
2. Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole (leave required)
3. Agreement of the parties (no leave required)

Question 21

What does S78 PACE 1984 allow the Court to do in relation to bad character evidence?

Answer 21

Allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

Question 22

What are the time limits on D bad character prosecution evidence?

Answer 22

Magistrates’ court-not more than 20 business days after the D pleads not guilty

Crown Court-not more than 10 business days after the D pleads not guilty

Question 23

What are the time limits on Co-D bad character evidence?

Answer 23

As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based.

Question 24

What are the time limits on non-D bad character evidence?

Answer 24

As soon as reasonably practicable; and

In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

Question 25

When should a Turnbull direction be given?

Answer 25

When the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification.

Question 26

What are the three key elements of the Turnbull warning?

Answer 26

The Judge should: -instruct the jury as to the reason for the need for such a warning -direct the jury to examine the circumstances in which the identification by each witness came to be made -remind the jury of any specific weaknesses in the identification evidence

Question 27

Outline ADVOKATE in relation to the strengths and weaknesses of visual identification evidence.

Answer 27

A-amount of time under observation D-distance V-visibility O-obstruction K-known or seen before A-any reason to remember T-time lapse E-error or material discrepancy

Question 28

What is a confession and provide examples?

Answer 28

S82(1) PACE 1984-“confession”, 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. The following fall within the definition: -unequivocal admissions of guilt -mixed statements -depending on the context, a nod, sign or gesture can be sufficient

Question 29

What does S76(2)(a) provide for in respect of excluding a confession for oppression?

Answer 29

S76(2)(a) provides that where it is represented to the Court that the confession was or may have been obtained by oppression of the person who made it, then the Court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the Court beyond reasonable doubt that the confession was not obtained as foresaid.

Question 30

What does S76(2)(b) provide for in respect of excluding a confession for unreliability?

Answer 30

Section 76(2)(b) provides that: -where it is represented to the Court that -the confession was or may have been obtained in consequence of anything said or done -which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof -the Court shall not allow the confession to be given in evidence against him -except insofar as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

Question 31

What is the three stage approach for excluding confessions for unreliability?

Answer 31

1. Identify the thing said or done 2. Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done

Question 32

What is the key test for the Court in deciding whether to exclude prosecution evidence under S78 PACE 1984?

Answer 32

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 33

What are the four key aspects to making an application to exclude confessions?

Answer 33

-Advance notifications -Timing -Voir dire -Submissions