Prosecution Procedure Analysis Evidence Flashcards
What is the procedure to ensure the evidence is admissible?
These procedures ensure that:
* the chain of evidence is unbroken
* the material to be analysed is not tampered with or contaminated
* the defence is aware of the analysis and the results and is given reasonable time to prepare a defence.
Delivery of drug exhibit outlines:
You can deliver the exhibit:
* in person to the analyst who is to issue the certificate, or to a person authorised by the analyst to receive it
* by registered post or by courier post with signature required in a sealed package to an employee who has been authorised by the analyst in charge at the laboratory.
You will need to be able to:
* describe the packaging to prove the chain of evidence, by sealing and labelling it with the file reference name
* quote the registered article number and other details of the registered mail
* produce the receipt of its delivery to the ESR.
Delivery to analyst discusses:
Section 31 allows a member of the police or a police employee to deliver exhibits to the ESR.
If you are delivering the exhibit to the analyst in person, you must cross-reference the:
* name of the person who signed the certificate ‘upon receipt of the exhibit’
* receipt signature on the POL 143 form
* evidence of the police member who delivered the drug to the ESR.
Delivery to authorised employee
You will need to ensure and prove:
* the name of the person to whom the drug was delivered
* the person who received the package was a person who works in an approved laboratory and who is authorised, by the analyst in charge at that laboratory, to receive it
* the package was sealed.
Discuss the Copy of analysts certificate to defendant:
Section 31(3)(a) of the Misuse of Drugs Act 1975 allows the defendant to accept or reject the certificate as the form in which the analytical evidence will be given.
Discuss the Method of Service.
The copy of the certificate and the written notice that the analyst will not be called:
* can be delivered to a member of the defendant’s family or to their solicitor (in accordance with ss24–29 of the Summary Proceedings Act 1957)
* must be dated at least seven clear days before the hearing at which the certificate is to be tendered
* must be proved to have been served either by oral evidence or a constable’s endorsement which complies with s29 of the Summary Proceedings Act 1957.
Discuss the Admissibility of Certificate:
The certificate is admissible evidence only if:
* the defendant is served at least seven days (7 clear days) of the hearing, and provided with a copy of the analyst’s certificate
* the defendant does not, at least three days before the hearing, give written notice that the analyst be called
* the Court does not request the oral evidence of the analyst.
Discuss when there is a lack of response from defence:
Do not assume that there will be no argument about the exhibit, chain of evidence or identity of the drug just because the defence has not served a notice requiring the analyst to give evidence. The defence accepts nothing and admits nothing by failing to serve notice: the only effect is to make the certificate technically admissible.
What happens when there is errors?
Service:
If you do not serve the documents correctly, you jeopardise the admissibility of the certificate as evidence.
The Court in Free v Police56 deemed the certificate of analysis was inadmissible as evidence because the statutory procedures were not complied with. For that reason, any evidence in regard to the cannabis became hearsay, and therefore inadmissible.
Form:
However, if your statement saying that the certificate and notice have been served is incorrect in form but not in substance, you can make a submission under s379 of the Criminal Procedure Act 2011 that the statement not be invalidated.
Content:
The fact that there is an incorrect statement of fact in the certificate does not render it inadmissible. The law contemplates the possibility of error ‘until contrary is proved’.
