Law Of Evidence

Question 1

Adversarial v inquisitorial system

Answer 1

Adversarial is English legal heritage
Inquisitorial is used in South Africa and much of rest or Europe, US and France often used as example as based on Napolians code

Adversarial has lay jury
Passive judge in adversarial
Evidence heard verbally adversarial

Question 2

Example of inquisitorial in English law

Answer 2

Coroners court ; does not determine guilt but does determine cause of death

Question 3

Scope and function of jury at common law

Answer 3

Prosecution cannot appeal a jury acquittal except if there was jury tampering or cps can order retrial if new evidence comes to light or is in interest of justice

Question 4

Jury nullification
Example of this in Clive pointing case

Answer 4

Jury does something unexpected as may think it is justifiable
Clive pointing concerned proprietary rights, saw evidence of instructions to fire on Argentina warship … passed evidence to press which went against official secrets act but found not guilty

Question 5

Admissibility fundamental concepts

Answer 5

1) relevance- relevant to fact in issue or a fact that is in turn relevant to a fact in issue
2) weight -
3) probative value - evaluation of the extent to which an item proves the case
4) prejudicial value - evaluation to the extent that the evidence will be used by the tribunal in an inappropriate way

Is it the evidence excluded by exclusionary rule eg a section 78

Question 6

Which party bears the legal burden

Answer 6

General rule - he who asserts must prove, not he who denies

Question 7

Reverse burdens but negative assertions still follow general rule

Question 8

Insanity burden of prof is on

Answer 8

Defence

Question 9

Who is competent to give evidence ?

Answer 9

All persons are whatver their age competent to give evidence subject to s53(3)
A person is not competent to give evidence if appears not able to
A) understand the questions put to him and
B) give answers to them which can be understood

Question 10

Voir dire =

Answer 10

Trial within a trial

Question 11

Other exceptions to competence ( the accused and Co accused)

Answer 11

Accused not competent for prosecution - can never be called by prosecution
Accused is competent for defence but not compellable

Co accused not competent for prosecution but may become competent if acquitted or not part of proceedings any more
Co accused competent but not compelable for defence

Question 12

Compelability means

Answer 12

Witness can be required to attend court and testify under penalty of a substantial fine or even imprisonment for contempt of court if they refuse

Question 13

Section 35 CJPOA 1994

Answer 13

Court may draw inferences as appear proper from failure of the accused to give evidence or his refusal without good cause to answer any questions at his trial

Question 14

Compelability and spouses or civil partner

Answer 14

Spouses / civil partner are compellable only for specific offences
Section 80(3) pace
A) involved assault or injury or threat to the wife or husband or a person who was under 16 at time
B) it was a sexual offence in respect of a person who was at the time under 16
C) attempting or conspiring to comitt any of above

Question 15

Privilege of self incrimination as a witness

Answer 15

Witness must reassert priv every time he is asked a question that may incriminate him
Priv belongs to witness and does not confer onto another party
Judge is final arbiter of scope of priv

Question 16

Types of evidence 6 types

Answer 16

1) direct testimony
2) real evidence
3) hearsay evidence
4) documentary evidence
5) confession evidence
6) circumstantial evidence

Question 17

Circumstantial evidence = does not involve the immediate perception of the existence of a fact in issue, but is evidence from which existence of a fact in issue can be inferred
Eg

Answer 17

Evidence of opportunity (right place and time )
Identity evidence
Evidence of motive
Evidence of planning

Good in proving men’s rea

Question 18

R v registrar of births , marriages and deaths 2003

Answer 18

Can stop a witness being compellable by marrying them

Question 19

Priv against self incrimination as witness

Answer 19

Allhusen v labouchere 1878 = witness must reassert his privilege every time he is asked a question that incriminate him
R v boyes = judge is final arbiter of the scope of the privilege
R v Garbett 1847 = wrongfully compelled self incriminating evidence may not be used against d in subsequent proceedings

Question 20

Public interest immunity

Answer 20

R v h 2003 - 7 stage process for when prosecution withholds unused material on grounds of public interest

Question 21

R v kearns 2003

Answer 21

There is a distinction between statements under compulsion and material having an existence independent of the will of the suspect

Question 22

Section 34 cjpoa 1994

Answer 22

Concerns suspect failing to mention facts before trial ie under caution which he relies on in his defence

May draw proper inferences from this but only if he could reasonably be expected to disclose fact at the time

Question 23

R v argent 1996

Answer 23

Consideration has to be taken of the actual defendant with such qualities, knowledge, apprehensions and advice as he had at the time and in the circumstances existing at the time when deciphering if he could reasonably have been expected to disclose fact

Question 24

R v condron 1997

Answer 24

Refusing to answer questions on legal advice is unlikely to be sufficient reason for failure to mention facts that are relied on on defence

Question 25

R v howell 2003

Answer 25

To avoid adverse inference based on legal advice there had to be soundly based objective reasons for silence , sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by suspect to police

Question 26

Failing to account for something

Answer 26

Section 36 cjpoa

Question 27

Section 37 cjpoa

Answer 27

Failing to account for why suspect is at particular place

Question 28

S 62(10) pace

Answer 28

If d refuses to give body samples then adverse inference can be drawn

Question 29

Confession definition in s82(1) pace

Answer 29

Confession includes any statement
Wholly or partially adverse to person who made it wherever made to person in authority or not or where made in words or not

Question 30

R v sharp 1988

Answer 30

Mixed statement .. all of it goes in

Question 31

Can silence amount to confession

Answer 31

Not under statute
Yes under common law ie not contradicting a lie and being on equal terms
Collins and keep 2004 adopted lie

Question 32

Who is confession admissible against

Answer 32

The person who makes it ie the accused
Although s76a says may be allowed agaisnt a Co accused in joint trial

Question 33

When will Confession not be allowed ?

Answer 33

S76(2)(a)- if made by oppression
S76(2)(a) - circumstances likely to make it unreliable

Pros must prove beyond reasonable doubt that was not obtains by the above

Question 34

Is evidence by d allowed in proper trial

Answer 34

Not generally

Question 35

When should application against confession be made

Answer 35

Before confession put in evidnece and once done judge cannot use 76 or 78

Question 36

Examples of unreliable confessions

Answer 36

Denied access to solicitor 58 pace
No note of interview breach code c
Vulnerable
Pregnant so emotional

Question 37

What is hearsay
Section 14(1) cja 2003

Answer 37

A statement not made in oral evidence in the proceedings that is evidence of any matter stated and is to be relied upon for the truth of its contents

Question 38

When is hearsay admissible

Answer 38

Is admissible only if
A) any provision of the chapter ie s114 to 141 makes it admissible or
B) any rule of law preserved in s118 makes it admissible or
C) all parties agree to it being admissible or
D) the court is satisfied in interests of justice ie s78

Question 39

Hearsay - the purpose rule

Answer 39

If the statement is to be adduced to prove a fact other than the truth of what was said in the statement - it is original evidence and may be admissible if that fact other than the truth of the statement is relevant

Question 40

Section 115 - what is a statement

Answer 40

Representation of fact or opinion made by a person by whatver means including sketch , photo fit or other pictorial form

Question 41

Hearsay case
Ratten v r 1972

Answer 41

Said that gun went off accidentally and woman died
But phone call used to show that woman phoned for police

Question 42

R v gilfoyle 1996

Answer 42

Pregnant wife hanged with suicide note
But later 3 friends confirmed that wife had said she was worried about husband asking her to write suicide note

Question 43

R v minchin

Answer 43

Can show statement was false

Question 44

Midmore

Answer 44

Implied representation of fact