Miscellaneous Directions Flashcards
Rule in Browne v Dunn
In any trial – civil or criminal – if a party intends to contradict the evidence of a witness – either by way of submission to the judge or jury, or by other evidence – then the party (via their barrister) is required to put the substance of the contradictory evidence to the witness during cross-examination, so that the witness might comment on it: Browne v Dunn
[U]nless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies on inferences to be drawn from other evidence in the proceedings.
[See also Bale v Mills]
Possible consequences of non-compliance with rule:
1) If a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it.
2) If the witness has not been cross-examined on a particular matter, that may be a very good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence.
3) The trial judge may accede to an application by counsel for the party who called the witness who was not questioned in conformity with the rule to call evidence in rebuttal or to have the witness recalled for further cross-examination.
4) A failure to comply with the rule may cause the party in default to become disentitled from relying on evidence against the witness.
5) It is possible that the jury may be discharged, or a curative direction given.
6) The court may be inclined to disregard a submission which was not tested by putting it to the person best able to deal with it.
7) If a party in breach of the rule calls evidence inconsistent with that of the witness who was not cross-examined, it may be open to infer that the inconsistent evidence was not in accordance with instructions given to counsel about how the cross-examination should proceed and should be disbelieved as a recent invention.
Jones v Dunkel inference
Inferences re unexplained failure to give evidence or call witness
Unexplained failure by a party to give evidence, to call witnesses, to tender documents, or other evidence or to produce particular material to an expert witness, may (but not must) lead, in appropriate circumstances, to an inference that the uncalled evidence or missing material would not have assisted the party’s case.
Negative inference – does not allow inference untendered evidence would have been damaging, or create any admission (distinguish with destruction of evidence, or giving false evidence)
Azzopardi Direction
Azzopardi Direction
Refusal to give or call evidence is a right of the defendant, who is not bound or obliged to give evidence. Remaining silent is not an admission of guilt by conduct, and proves nothing.
The one qualification: quote from bench book:
“Prosecution argues that [list of significant facts] prove that the defendant is guilt as charged. You may think that if there are any ADDITIONAL FACTS that would explain that evidence against the defendant, or contradict the conclusion of guilt which the prosecution asks you to draw, those additional facts, if they exist, would be additional facts known ONLY TO THE DEFENDANT, and could not be the subject of evidence from any other person or source.
Consequence of defendant NOT calling evidence is that the jury has no evidence of additional facts to explain the evidence. This allows a conclusion of guilt to be more safely drawn
Domican warning
Warning re danger of convicting on identification evidence alone - where evidence as to identification represents any ‘significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is dispute’
No set formula, but must be cogent and effective and not general – must specifically draw jury’s attention to the weaknesses of the identification evidence
Can apply to voice identification, and a similar warning given to objects (again where not peripheral to the major issue)
Christie Discretion
Trial judge can only exclude evidence where, taken at its highest, its probative value is outweighed by its prejudicial effect. Words “probative value” require the trial judge to assume the evidence would be accepted, as it could only have probative value if it could rationally affect a material fact in issue.
Note s 130 EAQ - which states nothing in Act derogates from power of the court in criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit evidence.
Compare with s 137 EAC: legislation is non-discretionary (Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant).
“Trial judge can only exclude the evidence of such a witness where, taken at its highest, its probation value is outweighed by its prejudicial effect”
Questions of weight, reliability, and weight play no part in that consideration
Pfennig Test
Example of probative vs prejudicial effect
(a) “Propensity evidence will be admissible only if its probative value exceeds its prejudicial effect…there is no reasonable view of the evidence consistent with the innocence of the accused”. Such a “strong degree of probative force” or “strikingly similar”. In light of all the evidence, including the propensity evidence, is “there a rational view of the evidence consistent with innocence?”.
QUOTE (HML)
“Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, then the law excludes such evidence as a matter of fundamental principle.
**The purpose just described is often referred to as propensity although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be taken by a jury to prove too much that the law seeks to guard against.”
Rule in Walker v Walker
If at trial a party calls for the inspection of a document held by the opponent, the party is bound to put it in evidence (provided the document was not being used to refresh memory)
Note: rule abolished by s 35 EAC
Delay in making a complaint - Longman Warning
Common law substantially modified by s 132BA EAQ
On judge’s initiative, or party’s application, the judge MAY give the jury a direction if satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of the delay
i) mere delay does not establish significant forensic disadvantage
ii) jury must be informed of the nature of the disadvantage
iii) judge MUST NOT warn that it would be dangerous or unsafe to convict based only on the evidence of the complainant, or that their evidence ought to be scrutinised with great care
iv) direction need not be given if good reason not to do so
v) judge may only give direction on delay pursuant to s 132BA
COMPARE WITH COMMON LAW Longman Warning: where judge SHOULD say that it would be dangerous to convict on evidence alone and the jury should exercise great scrutiny
