evidence

Question 1

Rattery v HMA

Answer 1

re civil admissibility
lord trainer- conduct was a technical offence (letter from post office) rather than a true crime thus reluctant tosay unambiguously that in civil cases obtained illegally always admissible.

Question 2

duchess of argyll

Answer 2

court had disgression weher to accept improp ob evidence or not

Question 3

Hendry v hma

Answer 3

culp hom, heart condition and assualted. defence asked expert are you able to say beyond reasonable doubt that assualt caused death having regard to stairs ect- question deemed improper

Question 4

hma v ranald

Answer 4

defence were allowed to put froward as evidence that on 2 previous occasions had claimed rape, and had a physicatiric disorder and a drug and alcohol dependecy- could give evidence about the symptoms in general

Question 5

hainey v hma

Answer 5

death of child, body decomposed. forensic anthropologist hired. was also asked about state of childs health wehn dies, evidence not admissible as was not a mediacl professiosnl

Question 6

r v sally clark

Answer 6

infant death syndrom, paeditriction- court of appeal noted concern that statistical evidence was admitted when this was not his line of practice

Question 7

sir gerald gordon in grimmond

Answer 7

commeded that the distinction should be between information that is that subject of expert nowledge and that which is not- but hma v gage shows this is not how the law has developed

Question 8

distinction

Answer 8

1. facts which embody everyday knowledge and which are within the domium of a trier of faact
2. facts which are beyond everyday knowledge and for which expert evidence may be required.

Question 9

accuracy of science. older cases

hamilton v hma

Answer 9

re fingerprints on a bottle- held that it is a reliable science where it’s professionsals accept it as so- reliability fo evidence is to be accepted not because it is irrebuttable but because long experience is shown to prove no instance in which it has ever successfully been rebutted

Question 10

hma v mcginty

Answer 10

charged with supply of canabis resin. expert

Question 11

lienhe decision

Answer 11

it is the duty of the trial judge to satisfy himself that someone proffered as an expert witness had the approporate competence and expertise on the matter which she is inited to give an opinion one- not to be left to jury to decide

Question 12

Young criteria for expert evidence

Answer 12

be based on recognised and developed academic discipline

proceed ion teste theories

have a practical and measurable consequence in real life

follow a developed methodilogy whichc is open to possible challange

produce a result capeable of ebing assessed

Question 13

duabert vmerrel and dow pharmacauticals- us supreme court case

Answer 13

difficiult to knwo what come sunder judicail knowledeg, in this the majority justices suggested that certain scientific theories were so well known to fallw ithin judicial knowledeg and then gave examples such as th law of thermodynamics.

Question 14

rishardson v clark

Answer 14

re handwriting specimans they had experiences in forgery cases

Question 15

hopes v lavery

Answer 15

re alledged blackmail. coversation recodered- god a shorthand writer to type up what they were saying- said her expertise was doubtful

Question 16

white v hma

Answer 16

charged with possession and intention to supply drugs - officers from drug squad were treated as experts in assessing the quatity of drugs

Question 17

character- previous convicitons - Varey v hma

Answer 17

indicement said how long was in for and why, said this was ok as necessary to establish wetehr was lawfully convicted

Question 18

carberry v hma

Answer 18

if necesasary to allude to previous convitons in order to paint picture- re cospiracy to rob abank, permissible to show that had got car for job from friend he met in prison

Question 19

no greater reference than what is structly necessary

bousted v macleod

Answer 19

driving while disqualified, also saud was previously convicted of wasting police time- convcition quashed as this revelation deemed irrelevent and a breach

Question 20

s.270

Answer 20

in certain circumstances crown permitted lead evidence re prev convictions or if genrally of bad character if the accused puts their character in issue or if the attack character of victim

Question 21

266

Answer 21

provisions agaisnt cross examination of accused re previous convtioctionshowevere exceptions as above with 270

Question 22

leggat case

Answer 22

nature of the defenceinvolves attack on witnesses/ victims character. - irrelevent if the attack on the accused as a result is relevent or not - just saying they are lying is not an attack.
trial judge had wide disgression in wetehr toa llow accused to be cross examined, will look at fairness, integral to case, and necessity is it just a deliberate attack on the accused

Question 23

mccarthy case

Answer 23

if open self up to cross examination by giving evidence agaisnt the co- accused then will be open to examination re previosu convcitons
griffiths case- this is compatibel with echr

Question 24

notice

Answer 24

acccused must give notice if intedning to lead evidence agaisnt complainers acharacter and must get permsision, if granted are allowed but then open selves up to being crossexamined under s 266 and 270 re character

Question 25

s. 275 (a)

Answer 25

in sex offences crown obliged put forward previous convitcitons re sex offences unless accused ovjects i,e, would be damaging and cotradicting on the interests of jsutice- unless proved otherwise not deemed be contrary to justice. re this provision initially court said burden on the accused (evidential) (due to echr) * DS v HMA - per lord hope- provision needs to be read as if imposising no burden at al- unless accusdd objects this is not contrary to jsuticehe commented thta would be some situations still where would be contrary to jsutice i.e. ahd committed mior sexualr offence 30 years ago.

Question 26

DS case

Answer 26

leggat case- lj ross

Question 27

browns v rolls royce

Answer 27

pursuasive burden- dermintitus on hand- up to puruers to prove was negligent and things like unfair ocntract terms prove the fact in issue

Question 28

evidential

Answer 28

adducing enough evidence to warrent an issue

Question 29

civil

Answer 29

usually pursuasive burden on the pursuer

Question 30

criminal

Answer 30

pursuaive b of proof on crown except mental and dim rep walker- if on any issue of fact no evidnec is led or evidence leaces matter in doubt [artj om wjoe, tje nirdem rest jave not properly achived their foal of sidcharding tje nirdem od proos

Question 31

diminished r and insanity

Answer 31

1995 s.51A(4)- establish disorder on balance of prob

Question 32

lamibie v hma

Answer 32

re other special defences do not need to bear the burden to prove issue but must put forward enough issue for cas ebe considered

Question 33

irving v jessop

Answer 33

facts peculiarly within the knowledge of accused tv liscense- only they could discharge pursuasive burden of proofe

Question 34

king v lees

Answer 34

drink driving - stat provision placed burden on accuded to prove didn;t have thta kevel of alcohol

Question 35

r v lambert

Answer 35

s.28 re misuse drugs- burden to prove neither knew or suspected knowing. statute appeared to place pursuasive burden on accused but hol re art 6 only evidential- must be properotional a reaction to prosecution diffucties. only enought to contest- falure not automatic convition reading down also in r v keogh re official secrets

Question 36

sheldrake v dpp

Answer 36

per lord bingham- OVER RIDING CONCERN IS THAT A TRIAL SHOULD BE FAIR AND THE PRESUMPTION OF INNOCENCE IS A FUNDAMENTAL RIGHT DIDRECTED TTO THAT END. both sheldrake re trafic offences and attorney gen ref no4 2002 re terrosim both read down so as to impose evidental rather than legal burdens on accused.

Question 37

woolmington v dpp

Answer 37

if someone dies as a result of the accuseded acts was presumed to be murder unless accused could satisfy was manslaughter- held was misdirection impose legal burden- viscount sankeys famous dictum 9english)- the one golden thread to always be seen is the duty of the prosecution to proove the prisoners guilt some doubt over wether sensible presume innocence at any statge bentham defender is not in fact treates as thoough her were innocent it would be absurd and inconsistent o dela with him as if he were

Question 38

glancy v kevin

Answer 38

kinife in public place- pursuaive burden appropriate must eb legitimate and propertioante.

Question 39

slater v hma

Answer 39

presumption of innocence applies to all- this was supported by hma v hayes- also states what reasonable doubt is- must be beased on reaosn, soemthing material, makes you pause also irving v min of pensions- not a strained and fanciful acceptance of strained possibilities.

Question 40

preusmptions of law

Answer 40

parentage agaisnt previous criminal concvictions- ' no conviction other than a subsisting one shall be addmissible in evidence by virture of this section- law refor misc prov act 1968 s.10. - presumed if was convictived of offence is guilty of it . of common ownership of proeprty agaisnt misconduct gibson v national cash reg- potentiall fraudulet sales- presumed was no misconduct

Question 41

presumption of intending probable and natural consequences- hma v rutherford

Answer 41

strangled woman hno mens rea but clup hom as deemed to hav eintednde the natural consequences.

Question 42

presumption if stolen property

Answer 42

if found with stole property are presumed have stole in - burden on accused to rebut- a tactical burden

Question 43

fox v patterson

Answer 43

3 part rule for stolen goods 1. msut be found in possession 2. must ahve been recently stolen 3. mmust be other criminative circumsatcnes

Question 44

macdonald v hma

Answer 44

accused doesn;t need to prove innocence but if the fox criteria are satisfied tjem meeds to rebut prosecution- tactical not pursuasive.

Question 45

similar fact

Answer 45

oswald v fairs- question is what did a say to b not what did he say to c and the dact that hesaid a similar thing to C does not proove tat he said the same thing to B

Question 46

in civil cases rule is that sfe is excluded

Answer 46

a v b damages fro an alledged rape- tried to call evidence that ha dattempted to ravish other woman- held as irrelevent by udge also inglise v national bank of scotland- recovery of money pursuer claimed had been defrauded into paying, sought as with a v b to lead evidence of similar actions- agaisn admission refused

Question 47

exceptiosn to sfe in civil

Answer 47

proof of adultery/parenthood/ facts wuth a bearing on the issue i

Question 48

criminal sfe

Answer 48

G for NSW- 13 children bodies found. rule in ciminal thatevidence concenign priveous convition held to be relevent if it has a bearing on the facts as to wether the accused charged as accidental or intende or necessary for the defences rebttal- accepted in scotland by josepgh v hma - incident belgium re letters.

Question 49

hma v flanders

Answer 49

murder charge- could make notice of comments made from 6 months previosu but must give fair ntoice to accused

Question 50

hma v kay

Answer 50

said attacked husband as feared he would assault her- allowed lead evidecne re previosu behavious because defence also leading evidence that she was of bad character brady v hma - if evidence given on character must give notice- case cotrasted to kay - evidence not admissible as not int the interests of justice

Question 51

if can show actions are connected in some way- SFE in civil knutzen v mauriston re barrels of mutton

Answer 51

able to say that another show who bought the mutton from same place said was putrid- lord sands