Evidence Cases Flashcards
R v Wong kam ming 1980
Voir dire
Answers given in Voir dire should not be adduced to jury
Questions should be limited to the issue in Voir dire eg was confession voluntary
R v Galbraith 1981
No case to answer
2 limbs
1= there is no evidence that a crime has been committed or
2= there is some evidence before the court but it is tenuous or inconsistent in nature
R v Woolmington 1935
Golden thread always to be seen which is that it is the duty of the prosecution to prove the defendants guilt subject to statutory exception
R v hunt 1987
Reverse burdens
Burden will be on the prosecution if putting the burden on d to satisfy exception would be to difficult to discharge
R v lambert 2002
Reverse burden -Evidential burdens
If a reverse burden conflicts with article 6 then it will be downgraded to evidential burden
R v kebilene 2000
Article 6 2 absolute but 3 questions
1- what do pros have to prove to transfer onus to d
2- does the burden imposed on d relate to something difficult or easy to prove
3- what is the nature of the threat faced by society which the provision is designed to combat
What does Competence section 53(1) YJCEA say and how will judge decide
All persons competent unless
A) not able to understand questions put
B) not able to give answers that are understood
Could be a Voir dire
Co accused is competent for prosecution if no longer part of proceedings
Can judge comment if a particular witness is not called ?
Yes but exercise care
Privilege against self incrimination
Is it rooted
Must it be reasserted
R v s (f) 2009- privilege is deeply rooted in common law
Allhusen v labouchere 1878- must reassert privilege every time asked a question that may incriminate him
R v kinglake 1870 - Wrongly obliged to incriminate himself is not grounds for quashing
Privilege against self incrimination and pre existing documents
Saunders or kearns -Right to silence does not apply to material existing independently
Public immunity
R v h 2003 7 stages
If material did not weaken the prosecution case or strengthen the ln there would be no requirement to disclose it
Overriding principle that derogation from the principle of full disclosure had always to be the minimum necessary to protect the public interest in question and must never imperil the overall fairness
1) consider the material
2) if does not weaken the pros case or strengthen d case then no disclosure
3) if serious prejudice to public interest then no disclosure
4) make sure minimum necessary to protect public interest
What is a confession
Section 82 - any statement wholly or party adverse to person who made it in words or otherwise
R v sharp 1988
Mixed statement go in as one confession
Can silence amount to a confession
Mitchell 1982- if on equal terms then can
Parkes 1977 - must reasonably warrant a response
Not contradict a lie confession
Stevie 2005- yes will be held against them
Restrictions on admissibility of confession
76(2)
A) oppression not allowed
B) not allowed if consequence of anything said or done that make it unreliable
Pros must prove beyond reasonable doubt that not made through these ways
Will inference be drawn under s34 if it is because of legal advice ?
R v condron - yes
Is Inference from silence allowed if interview is in breach of codes ?
R v gayle - no
R v Bresa 2005
Explains direction given for jury to draw inference from d silence
Section 36 and section 37 of criminal justice and public order act 1984
36- Draw inferences from d silence about presence of objects or substances
37- silence about being in particular place
What does oppression mean for purposes of s76(2) (a)
Also what does r v Paris say
R v fulling 1987- ordinary meaning eg exercise of authority or power in a harsh or wrongful manner - injust or cruel treatment
Paris - actions can be seen as more oppressive depending on person
What sort of things would make a Confession unreliable
Denied access to a solicitor s58 pace
No note of if Interview ie breaches of codes
R v Barry 1992- whether confession is unreliable 3 steps
1) identify the thing said or done
2) was it likely to render unreliable
3) have pros proved beyond reasonable doubt
Can you still use 78 to exclude confession and what things done might facilitate use of 78
R v mason 1988 - police lie and say they have evidence Whne they do not
R v hunt 1992- questioning someone Whne there was insufficient grounds to arrest
R v sparks 1991- failure to caution is usually significant and substantial breach of codes
What is hearsay ?
Section 15- an out of court statement eg fact or opinion tendered for the truth of its contents
What is the purpose rule and a case
Using the statement for any other reason other than truth
R v gilfoyle - told her friends she had been asked to write a suicide note - used to show she was worried
Is hearsay limited to what a person says
Would only apply to machine if human input
Are implied assertions hearsay
No
R v twist hearsay steps
1- Identify relevant fact
2- ask whether there is a statement
3- ask whether statement made for truth of it
What is section 118 of cja 2003
Retains common law hearsay exceptions
The test for res gestate = r v Andrews 1987 checklist
What was the nature of event and was what was said an instinctive reaction?
How close in time were the words to the event ?
Any special features suggesting a dishonest account ?
Any special features suggesting a mistake ?
Anonymous hearsay case
Nico brown 2019
Does the person need to be identified for a s 116 cja 2003
Yes
R v shahid 2013 12 step to follow before allowing hearsay in under fear s 116
Section 114 cja 2003 interests of justice
Key case
Maher v dpp = car dented in car park at supermarket by careless driver, witness wrote down reg and stuck on window. Measures should have common sense and realism so used 114
Should 114 be applied to bypass 116
R v o hare - no
When considering section 78 to exclude hearsay evidence the courts have said
Have regard to factors in 114 (2)
What is a turnbull warning
When case against accused depends on id evidence wholly or substantially which accused alleges to be a mistake
What is a Lucas direction
It is a direction if the defendant has lied
1) it must be deliberate
2) must relate to a material issue
3)the motive for the lie must be a realisation of guilt and fear of the truth
4) must be shown to be a lie by independent evidence or admission by accused
What is a makunjuola warning
Warning given when witness appears to be unreliable
Different degree of strength of warning can be given
What is the turner test
An experts opinion is admissible if it is likely to be outside the experience and knowledge of a jury
Sheldrake
R v dlugosz 2013- what does it say about expert evidence
The court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted
What does Crown against loosely say about entrapment
Not entrapment if police did no more than what anyone else would have done
Entrapment is state created crime
What does crown against warren say about abuse of process
In abduction or entrapment cases the court will generally conclude that proceedings should be stayed
What does crown against Walsh say
Breaches of codes must be significant and substantial
Takeaways from crown against Hanson
Including the tests
Tests
Does history of convictions establish a propensity
Does propensity make it more likely that d committed the crime
Wills proceedings be unfair if admitted
Equally- a single conviction can evidence propensity if strikingly similar
What does Crown against Jarvis 2008 say about propensity to be u truthful
History of serial lying will plainly be relevant and ought to be admitted
What does crown against belogun 2008 say
Confirms that where the defence is duress , evidence that shows u truthfulness will plainly be relevant
What does crown agaisnt j 2013 say
Investigated offence will be evidence of bad character if used in conjunction with other convictions
What does crown agaisnt Mitchell 2016 say
If crown is relying on several instances that show propensity then do not need to prove BRD
What does crown against tanner 2006 say
If attack made then all bc evidence goes in
What does crown against Abdullah 2019 say
Once bad character in it can be used to support any inference
What does crown agaisnt vye say about good character
2 limbs
If d gives pre trial statements he gets both limbs
What does Crown against hunter say about good character
Can get a modified good character direction up to judge discretion if old convictions and stuff
What does crown against spyby say
Automatically programmed computers are not hearsay
What does crown against sang say
Essentially evidence will still be admissible even if obtained improperly
What does Toby v Nichols say in relation to res gestate
20 mins after event not sufficient
What does crown against chawkley say about improperly obtained evidence
Essentially if the evidence is reliable then it will not be excluded
Structure of PQ
1- intro - include charge,section , act
Who the legal burden and evidential burdens are on
Life facts
2- set out list of evidence in order it would appear at trial
Use witness testimony as headings
Set out defence will try to weaken and set out evidence they will use
3- when dealing with each piece of evidence
- what type of evidence
- relevance
- inferences
- issue eg is it hearsay
What did the CBA highlight as problems with section 28 after enquiry by justice committee
1) it is being used to widely without proper consideration, consultation with witness or prosecution counsel— just being used for all vulnerable witnesses but live links should be sufficient for some. Only in rare cases should live evidence not be given.
2) section 28 can be requested at police stage Whne ABE Intervirw is done. Problems here as no prosecution counsel done and police not giving option
3) section 28 procedure was initially designed for other jurisdictions and has not been properly adapted to our jurisdiction. Further the technology being used in our jurisdiction is lacking eg cannot pause recording for a legal argument , no automatic transcript provision, typing drowned out victims , vodaphone technology needs phasing out.
4) drop in conviction rates because juries acquit more often Whne d word against complainant especially Whne evidence not given live and ABE is also poor
5) does not actually reduce delay - rather extends it because evidence already in the can.. equally delay in disclosure means section 28 hearing not fully equipped with all evidence
6) listing issues and lack of continuity -
What does Samantha faircluth research say about section 28
Gathered the views of a small sample of volunteering barristers
1) good but in limited cases such as cases involving young children
2) being used to get past half time rather than achieve best evidence because trials are so far away and witness wants to get on with life
3) no choice for witnesses and judges putting pressure along with the cps - box ticking suggested
4) listing delays - judges not realeasing advocates and advocates now not wanting section 28 work
5) reduced conviction rate because using 28 is a detachment from jury rather than engagement
Written submissions of Cheryl Thomas to justice committee and statistics
Based on a dataset of all charges against all defendants in all crown court cases between 2016 and 2023
This allows comparison between jury conviction rates of specific offences including Whne s 28 was used and Whne it wasn’t used
Conviction rates for Whne section 28 is used is nearly 10% lower than Whne it is not used
Conviction rate falls by 30% in over 16 rape cases Whne s28 is used
Conviction rate still lower When not a sexual offence .. Abh cases also 10-% lower
Reasons for this could be :
Lack of personal interaction
Poor quality of pre recorded evidence
Poor playback technology
Overall - no reliable evidence as to what causes the reduced conviction rates
Police should advise witnesses that it does that
Disagrees with law commission that RASSO cases should get automatic entitlement
What does the times article suggest
Recorded rape case evidence is resulting in acquittals increase
RASSO cases involve 1 parties word agaisnt another so juries acquit more often
Barristers say scheme rolled out before any empirical data given
Concern coincides with criminals banking on delay causing case to be dropped - 85% plead guilty at first court appearance 10 years ago
Now only 35%
What does the Ellison and munro article : special measures in rape trials : exploring the impact of screens, live links and video recorded evidence on mock juror deliberation suggest
4 different mini trials scripted and done in front of mock juries
The trials with no special measures did get more convictions but said verdict outcomes not sufficient indicator
This is because jurors from trials without special measures were more accepting that RASSO victims did not always resist
No evidence to suggest that mode of delivery of evidence makes a difference
Also no difference between date in relation to whether jurors thought there was a difference as to whether victim was distressed and credible depending on mode of delivery
Exceptions to rule against narrative
Contained in section 120
What does crown against sparks 1991 say
R v sparks 1991- failure to caution is usually significant and substantial breach of codes
What are the different types of evidence
Testimony
Real evidence
Hearsay evidence
Documentary evidence
Confession evidence
Circumstantial
What is ag reference 2002 authority for
Jury can compare cctv evidence to defendants in issue of Id
R v Ford
Anonymous hearsay not go in
Lundy v the queen
New Science
Must be credible
Must be fresh evidence
R v Forbes
3.12 is mandatory but may not be excluded if not followed
Id procedures
R v Atkins
Can give view even if no data base
