Giving evidence MCQs Flashcards
D is on trial in the Crown Court for assault occasioning actual bodily harm. They have raised self-defence on the basis that the complainant hit them first. This has been disputed by the complainant who denies striking D. It is not disputed that D and the complainant were in an argument just before the alleged assault took place and both were intoxicated. D is in the witness box and their advocate is taking them through their evidence in chief.
Which one of the following questions should be challenged?
Do you recall if the complaint had been drinking?
Do you recall how much alcohol you had drunk?
Did you fall over when hit?
Who started the argument between you and the complainant?
Did you fall over when hit?
Correct. This is a leading question. It assumes that the defendant was hit. The other questions are all acceptable given the agreed facts between the defence and prosecution
Arian is on trial for theft. The only evidence against them is that of a witness (who does not know Arian) who claims that she saw them take a purse from the victim’s handbag. During cross-examination, the witness concedes that the incident took place after dark in a busy street about 40 yards from where she was standing. She also concedes that her view was partially obstructed by passers-by and that she cannot now be sure that it was the defendant she saw taking the purse.
Which of the following is the most appropriate course for the Judge to take in this situation?
Allow the case to go to the jury, without the need to give a Turnbull warning.
Withdraw the case from the jury and direct an acquittal
Allow the case to go to the jury, but give a Turnbull warning.
Exclude evidence of the identification.
Withdraw the case from the jury and direct an acquittal
This is the correct answer. Although the Judge could allow the case to go to the jury, the witness has conceded that she cannot be sure of the identification, and given this is the only evidence against the defendant, a jury properly directed could not convict. The most appropriate course of action is to withdraw the case from the jury under the R v Galbraith principles and direct and acquittal.
Caroline is facing trial at the Crown Court for an allegation of theft of an Amazon package left containing two Ipads on the doorstep of the house it had been delivered to. Caroline denied the allegation stating that she was delivering some flyers on behalf of the local MP. The delivery driver had not previously identified Caroline, but at trial had made a dock identification of Caroline saying that he recognised her.
Which of the following is the best advice her Advocate can give Caroline on dock identifications?
The judge has a discretion to allow a dock identification to be admitted, where the witness purports to recognise the Defendant
Dock identifications are automatically admissible in cases which involve an alleged recognition
Dock identifications are only admissible in trials in the Magistrates’ Court
Dock identifications are never admissible
The judge has a discretion to allow a dock identification to be admitted, where the witness purports to recognise the Defendant
Correct – the trial Judge retains the discretion to permit a dock identification and the Judge will need to consider whether this course will jeopardise the fairness of the trial - Blackstones 2020 edition 19.6
Question 1
A boy, aged 14, has been charged with robbery. The boy does not suffer from any
recognised medical condition but his mental age has been assessed as that of a 9- year- old
and he is distressed at the prospect of having to testify at trial.
If the boy does not testify, will it be appropriate for an adverse inference to be drawn
from his silence at trial?
A Yes, because an adverse inference will always be drawn if a defendant refuses to
testify at trial.
B Yes, because distress about testifying is not in itself a sufficient reason and will not by
itself prevent the drawing of an adverse inference.
C No, because an adverse inference cannot be drawn against a juvenile with a mental
age of a 9- year- old.
D No, because it appears that the mental condition of the boy makes it undesirable for
him to give evidence.
E Yes, because the court will require the boy to testify to put forward his defence if he is
to be acquitted.
Answer
Option B is the best answer because distress about testifying will not be sufficient to
engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an
adverse inference where ‘it appears to the court that the physical or mental condition of the
accused makes it undesirable for him to give evidence’.
So Option A is wrong because an adverse inference will not always be drawn where an
accused does not testify – option C is wrong because the mental age alone would not be
a sufficient reason (see R v Friend (1997)). Although option D does correctly state the above
statutory exception, on these facts, the boy does not appear to have a medical condition that
would make it undesirable for him to testify (contrast that with R v Friend (No 2) (2004) where
evidence then came to light that the defendant also suffered from ADHD, which was found to
be such a medical condition). Option E is wrong because a defendant has a right to remain
silent at trial and cannot be convicted on his silence alone. Moreover, the boy does not
necessarily need to testify in order to be acquitted.
Question 2
A man has been arrested on suspicion of burglary, it being alleged that he stole some
computer equipment from premises he broke into. When interviewed, the man confesses
to the offence and also tells the police where the stolen items can be found. These are
recovered by the police and the man’s fingerprints are found on them. The interview was
however, conducted unlawfully and the defence will argue at trial that the confession ought
to be excluded on the basis that it was obtained in circumstances rendering it unreliable.
Assuming the man’s confession is excluded at trial, which of the following best
describes whether the prosecution will be allowed to adduce evidence of the finding of
the stolen items?
A The finding of the items is still relevant and admissible as the exclusion of the
confession will not affect the admissibility of this evidence.
B The finding of these items will still be admissible because the confession was not
excluded as a result of oppression.
C Any evidence resulting from an inadmissible confession will not be admitted at trial.
D It will always be more prejudicial than probative to allow such evidence to be
admitted.
E The finding of the items will be admissible unless it would have such an adverse effect
on the fairness of the proceedings that the court ought not admit it.
Answer
Option A is the statement that best describes the operation of s 76(4) PACE 1984 about the
admissibility of relevant facts discovered as a result of an inadmissible confession. Not only
is the finding of the stolen items relevant, but more importantly, the man’s fingerprints found
on the stolen items link him to the burglary.
Option B is wrong because s 76(4) operates regardless of whether the confession is
excluded under s 76(2)(a) or (b). Option C is also wrong. Although such evidence coming
from an inadmissible confession may not be admitted, this will by no means always be the
case. Option D is wrong because although evidence will generally be excluded under the
court’s common law power (more prejudicial than probative) it will not ‘always’ be the case.
Option E is not the best description because this only sets out the test under s 78 PACE,
which is not the only test to apply when determining the admissibility of evidence.
Question 3
A man has been charged with murder. A key prosecution witness has subsequently died,
and the prosecution want to adduce her witness statement in the absence of the deceased
witness.
What will the prosecution need to establish for the witness statement to be admitted?
A That she had first- hand knowledge of the matters contained in her witness statement
and all reasonable steps have been taken to secure her attendance.
B That she had first- or second- hand knowledge of the matter contained in her witness
statement and she is identified to the court’s satisfaction.
C That she has died and so it is not reasonably practicable to secure her attendance and
she is identified to the court’s satisfaction.
D That she had first- hand knowledge of the matters contained in her witness statement
and is identified to the court’s satisfaction.
E That she has died, and she had first- hand knowledge of the matters contained in her
witness statement and is identified to the court’s satisfaction.
Answer
Option E is the correct answer as it identifies the three key requirements needed to adduce
such hearsay evidence. Namely, that the witness had first- hand knowledge of the matters
contained in her witness statement, she is identified to the court’s satisfaction and the relevant
prescribed reason under s 116(2) is satisfied. Here (a), that the relevant person is dead.
Option A is wrong because it only refers to one of these requirements and then goes on to
mention part of another prescribed reason under s 116(2)(d). Option B is wrong because
s 116 only allows first- hand hearsay to be admitted. Option C is wrong because although
it does refer to two of the above requirements, it also refers to part of another prescribed
reason under s 116(2)(c). Option D is not the best answer because it fails to mention the
relevant prescribed reason, namely that the witness is dead.
