SA10 Preliminary Evidential Materials Flashcards
What are the three ‘facts in issue’ in a criminal trial?
1) The identity of the accused.
2) All the elements of the offence charged (AR + MR).
3) Any defence raised where the defendant is not simply putting the prosecution to proof.
How may evidence be introduced using s10 CJA 1967?
Making a formal admission (which becomes conclusive evidence – no longer open to challenge).
How can a party withdraw a formal admission?
Only with leave of the court (s10(4) CJA 1967).
Is evidence of a witness’s good character admissible in a criminal trial to bolster the witness’s credibility?
Usually not – considered ‘oath helping’ – but can be relevant if used because disapprobative of the suggestion made to court that the witness is of bad character.
Must be relevant to an issue in the case.
What is the effect of an exclusionary rule in relation to evidence?
The exclusion of the evidence is mandatory.
What is the power in s78 PACE 1984?
A DISCRETIONARY power.
the court may refuse to admit evidence on which the prosecution proposes (so applications to exclude should happen before evidence is admitted) to rely if, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
Who goes to a ‘view’ of real evidence?
Judge, jury, parties, advocates and a shorthand writer.
What are collateral facts?
They do not directly prove a fact in issue, nor are they facts from which the existence of a fact in issue may be inferred. Affect collateral matters e.g. the admissibility of evidence.
What are the two general discretionary powers of general application?
The judge has the power to exclude:
a) Prosecution evidence that is more prejudicial than probative.
b) Evidence on which the prosecution proposes to rely that would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (s78 PACE 1984).
Both apply to PROSECUTION EVIDENCE ONLY.
Where one party puts into evidence a fact admitted by another party (or which is jointly admitted between them), what must happen?
A written record must be made (unless the court directs otherwise).
What is the difference between evidence introduced under s9 and s10 PACE 1984?
While s.10 admissions are conclusive
evidence of the fact formally admitted (s.10(1)), s.9 statements are not to be taken as conclusively true. Such statements are merely ‘admissible as evidence to the like extent as oral evidence to the like effect by that person’ (s.9(1)) – in effect they stand
in for the live witness (whose evidence is not controversial and so wouldn’t be cross-examined on).
What directions should a judge give a jury where the prosecution relies on circumstantial evidence (as per the guidance in the Crown Court Compendium).
The judge should summarise any evidence and/or arguments relied on by the defence to rebut the evidence and/or the conclusions which the prosecution seek to draw from it and direct the jury:
(a) to examine each strand of it and decide which if any they accept and which if any they do not and decide what fair and reasonable conclusions can be drawn from any evidence that they accept;
(b) not to speculate or guess or make theories about matters which in their view are not proved by any evidence; and
(c) to decide, having weighed up all the evidence, whether the prosecution have made them sure that D is guilty.
No requirements to use exact words.
What must accompany real evidence to give it weight?
Testimony.
What is the COA approach to decisions of trial judges under s78 PACE 1984?
Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78.
The true test for the Court of Appeal should be whether the admission of the evidence in question renders the conviction unsafe, since that is now the only ground on which it may allow an appeal against conviction.
If evidence can be excluded under both common law and s78 PACE, which should be used?
Either.
S78 extends the powers of the common law because of the potential for the exclusion of evidence obtained unlawfully, improperly, or unfairly.
