Preliminary evidential matters- syllabus area 10

Question 1

What do facts in issue comprise of?

Answer 1

Facts in issue comprise of:
a) facts which prosecution bear the burden of proving and disproving - to establish guilt of the accused

b) the facts which, in exceptional cases, the accused bears the burden of proving- in order to succeed in defence

F1.1

Question 2

What happens when there is a plea of NG?

Answer 2

Everything is in issue and prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act, and any necessary knowledge or intent.

The nature of the facts in issue is determined by reference to the legal ingredients of the offence charged and any defence raised.

Once the standard of proof is met, the fact is taken to have happened. If unmet, it is taken to not have happened

Question 3

any fact which is formally admitted under the CJA 1967, s.10 ceases to be in issue. True or false?

Answer 3

True. it must be taken to be proved and is not open to contradictory proof.

F1.1

Question 4

a formal admission may be made ‘of any fact which oral evidence may be given in criminal proceedings’

true or false?

Answer 4

True

Question 5

Written admissions should be put before a jury, provided at least that they are relevant to an issue before the jury and do not contain any material which should not go before the jury.

True or false?

Answer 5

True. Formal admissions may also be made by counsel or a solicitor orally.

Jury should be clear what has been admitted formally because jurors when considering open speech may find it difficult to distinguish between law, mixed fact and law, and comment.

Question 6

Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, what must happen?

Answer 6

Unless the court directs otherwise, a written record must be made of the admission

Question 7

formal admissions made with the benefit of advice are an important and cogent part of the evidence in trial.

True or false?

Answer 7

True

Question 8

formal admissions made with the benefit of advice are an important and cogent part of the evidence in trial.

True or false?

Answer 8

True

Question 9

evidence which is sufficiently relevant to the facts in issue are admissible. true or false?

Answer 9

true

Question 10

evidence not sufficiently relevant to the facts in issue should be excluded. true or false?

Answer 10

true

Question 11

evidence which may be relevant may be excluded if no reasonably jury propery directed to its defects, could place any weight on it. true or false?

Answer 11

true

Question 12

a case of strict liability offence involves no mens rea. Therefore evidence of motive, intention or knowledge is inadmissible. True or false?

Answer 12

True

Question 13

evidence of good character of a witness is generally inadmissible to bolster evidence because it amounts to ‘oath helping’. True or false?

Answer 13

true. but it may be admitted in circumstance where it may be relevant to an issue. F1.14

Question 14

What is circumstantial evidence?

Answer 14

Evidence of which relevant facts from which the existence or non-existence of facts in issue may be inferred

Question 15

what is real evidence?

Answer 15

it is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact.
F8.45

Question 16

Little, if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. true or false?

Answer 16

true

Question 17

what does the term ‘view’ mean?

Answer 17

it is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court

Question 18

when should a view be taken?

Answer 18

it should not take place after summing up. In magistrates it should take place before the conclusion of the evidence and in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature or locality which has altered since the incident. OR any feature not previously noticed by the parties which impresses the magistrates

Question 19

a judge must produce ground rules for a view after discussion with advocates. true or false?

Answer 19

true

Question 20

what should the ground views contain?

Answer 20

what should be shown to the jury, in what order, who would be permitted to speak, what will be said and provision should be made for the jury to ask questions

Question 21

prosecution bears both the legal and evidential burden in relation to all the elements of the offence necessary to establish guilt. true or false?

Answer 21

true

Question 22

where defence bear the burden of proving insanity, or by virtue of an express or implied statutory exception, some other issue, they will bear the evidential burden in that regard. True or false?

Answer 22

true

Question 23

Evidential burden is discharged when there is sufficient evidence in relation to the defence to leave it to the jury. True or false?

Answer 23

true

Question 24

insofar as intoxication may constitute a defence, once there is evidence before the court to support it, the onus is on the prosecution. true or false?

Answer 24

true

Question 25

what part of PACE governs the most important power to exclude otherwise admissible prosecution evidence?

Answer 25

s78(1). F2.7
The court may allow exclusion of evidence if it would have such an adverse effect on the fairness of the proceedings that the court not admit it.

Evidence is excluded usually because it renders the conviction unsafe

Question 26

when should evidence be excluded?

Answer 26

before the evidence is adduced. If reference is made to it in the prosecution opening speech, before that speech.

Question 27

s78 is used to exclude any evidence which prosecution propose to rely on. true or false?

Answer 27

true

Question 28

what type of evidence is open to exclusion at common law?

Answer 28

any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value and

admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, which might operate unfairly against the accused.

it may be excluded under common law or s78 PACE

Question 29

The dangers inherent in giving evidence against accomplices are met by giving the jury a proper warning. True or false?

Answer 29

True. F2.9

Question 30

s.78 is capable of application to any evidence obtained illegally or by improper to unfair means and on which the prosecution seek to rely, whether obtained from the accused, his or her premises or from any other source. True or false?

Answer 30

True

Question 31

a judge always has a discretion to exclude otherwise admissible prosecution evidence if, in the judges opinion, its prejudicial effect on the minds of the jury outweighs its probative value. True or false

Answer 31

True. F2.36

This is to ensure that an accused has a fair trial.

The judge must consider whether the evidence is sufficiently substantial , having regard to the purpose of which it is directed to make it desirable in the interests of justice to admit.

Question 32

what is the meaning of relevance?

Answer 32

relevance is any two facts which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with the other facts proves or renders probable the past or future existence or non- existence of the other.

in summary, evidence is relevant if it is logically probative or disprobative of some matter which requires proof.

Evidence is a matter of degree to be determined. See F1.12