SA10 - Preliminary Evidential Matters

Question 1

What are facts in issue? How can we figure out what the facts in issue are? When does something stop being a fact in issue?

Answer 1

Any facts which must be proven or disproven (by the prosecution or, exceptionally, by the defence). Therefore, what the facts in issue are can be determined by looking at the relevant ‘legal ingredients’. Anything that is formally admitted ceases to be in issue: it is taken to be proved, and so is not open to contradictory proof.

Question 2

Which statute/section governs formal admissions?

Answer 2

S.10 CJA 1967

Question 3

Of which facts may formal admissions be made?

Answer 3

A formal admission may be made of any fact of which oral evidence may be given in proceedings, which therefore excludes what would otherwise fall to be excluded because it is, say, inadmissible hearsay.

Question 4

Formal admissions of expert opinion

Answer 4

S.10 covers only facts and so cannot cover expert opinion, but a party who accepts another party’s expert conclusions may admit them as fact under s.10.

Question 5

When may a formal admission be made orally?

Answer 5

In court by counsel or a solicitor.

Question 6

Admissions and juries

Answer 6

Ordinarily, written admissions should be put before the 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. It is important that juries are clear as to what has been formally admitted.

Question 7

Formal admissions and shorthand note.

Answer 7

Whatever the manner of making a formal admission, it should be such that what has been admitted should appear clearly on the shorthand note.

Question 8

Scenario where counsel for the accused formally admit every fact alleged in the prosecution’s opening speech and the prosecution then rely solely on admissions.

Answer 8

Can have this scenario, but this procedure should be adopted with caution because of its capacity to confuse the jury (they might find it hard to distinguish between law, mixed fact and law, and comment when considering the opening speech.

Question 9

Joint admission of facts or introduction in evidence of a fact admitted by another party

Answer 9

Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, then unless the court otherwise directs, a written record must be made of the admission.

Question 10

Application of Section 10 to a written schedule

Answer 10

Section 10 will apply in the case of relevant facts in a written schedule which the parties agree to put before the jury; and will also apply to any such facts that were removed from the schedule, pending a judicial ruling on their admissibility, on their reinstatement following a judicial ruling in favour of admissibility.

Question 11

Withdrawing a written admission

Answer 11

Leave to withdraw a written admission is unlikely to be given without cogent evidence from the accused and those advising him that the admissions were made by reason of mistake or misunderstanding.

Question 12

Relevance and admissibility: cardinal rule of evidence

Answer 12

Cardinal rule of evidence: Subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded.

Question 13

When may relevant evidence be excluded (exception to the cardinal rule)

Answer 13

Evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it.

Question 14

Example of irrelevant evidence (strict liability)

Answer 14

In the case of a strict liability offence, evidence of motive, intention, or knowledge is inadmissible because it is irrelevant to what the Crown has to prove and merely prejudicial to the accused.

Question 15

Definitions of ‘relevance’

Answer 15

Relevant facts are those so related to each other that according to the common course of events one (either taken by itself or in connection with other facts) proves or renders possible the past, present, or future existence or non-existence of the other.

Another definition is ‘logical probativeness’; evidence which makes the matter that requires proof either more or less probable.

Question 16

Example of the relevance of one fact to the other

Answer 16

Example of relevance: D’s defence was that he acted under duress as a result of threats by his co-accused (N). Evidence of the fact that N subsequently attacked D with a knife is relevant to the defence because it makes it more likely that D, at the time of the offence, had genuinely feared for his safety.

The question of relevance is typically a matter of degree to be determined by common sense and experience.

Question 17

Evidence of good character of prosecution witnesses: general rule

Answer 17

Evidence of the good character of a prosecution witness is generally inadmissible to bolster his credibility, because it amounts to ‘oath helping’; generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.

Question 18

When may evidence of the good character of a prosecution witness be admissible? Which precautions should be taken?

Answer 18

It may be admissible if relevant to an issue in the case.

Examples:
• In a rape case where the defence is consent, evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy
• In a murder case, the defence being self-defence, evidence of the deceased’s non-violent disposition
•In a case of inflicting GBH, the defence being self-defence accompanied by evidence that the complainant had stated the violence by making racially abusive comments, evidence to show the complainant was not a racist.

The category of issues to which evidence of disposition may be relevant is not closed.

When good character evidence is admitted as relevant to an issue in this case, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

Question 19

When an accused contradicts a prosecution witness on a relevant issue, both are of good character, and evidence of the accused’s good character is given

Answer 19

When an accused contradicts a prosecution witness on a relevant issue, both of them are of good character, evidence is given of the accused’s good character and the jury are directed that it is relevant to the accused’s credibility, then evidence of the good character of the prosecution witness should also be admissible and the jury should receive a direction that it is relevant to the witness’s credibility accompanied by a rider as to its limitations and effect.

Question 20

What is circumstantial evidence?

Answer 20

Is to be contrasted with direct evidence. Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred.

E.g. The accused’s fingerprints were found on the murder weapon (whereas direct evidence would be that the witness saw the accused murder the victim).

Question 21

Comparison between direct and circumstantial evidence in terms of weight

Answer 21

It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence. For example, the tribunal of fact is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility.

Question 22

Circumstantial evidence as a rope

Answer 22

Circumstantial evidence ‘works by cumulatively, in geometrical progression, eliminating other possibilities’; likened to a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Question 23

Caution that must be taken in relation to circumstantial evidence

Answer 23

Although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another, thus it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

Question 24

What is real evidence?

Answer 24

Real evidence is usually a tangible object, produced in court for inspection.

Question 25

What should accompany real evidence?

Answer 25

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. In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony.

Question 26

What is a view?

Answer 26

The term ‘view’ is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court, and the inspection of a locus in quo (scene of an event).

Question 27

When should a view happen (CC)?

Answer 27

A view should not take place after the summing-up.

Question 28

Who should attend a view (CC)?

Answer 28

It should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer.

Question 29

When should a view happen (Mags)?

Answer 29

As a general rule a visit to the locus in quo should take place before the conclusion of the evidence

Question 30

Who should attend a view (Mags)?

Answer 30

Should take place in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates.

The presence of the accused is important because he may be able to point out some important matter of which his legal adviser is ignorant or about which the magistrates are making a mistake.

Question 31

Rules for a view

Answer 31

A judge must produce ground rules for a view, after discussion with the advocates. The ground rules should contain details of what the jury should be shown, and in what order, and who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions.

Question 32

Tribunals of fact and law: general rules

Answer 32

As a general rule, questions of law (including practice) are for the judge, and questions of fact for the jury.

Question 33

Tribunals of fact and law: trials on indictment without a jury

Answer 33

The judge decides all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction.

Question 34

Tribunals of fact and law: lay magistrates sitting with a judge in the CC.

Answer 34

In this scenario, lay magistrates are also judges of the court; they should participate in all questions to be determined by the court, including the factual aspect of any question relating to the admissibility of evidence, but must accept the ruling of the judge on any question of law.

Question 35

In jury trials, questions of law for the judge include those relating to

Answer 35

• Where the court has determined that an accused is unfit to plead, whether he did the act or made the omission charged against him as the offence.
• Challenges to jurors
• Discharge of a juror or jury
• Competence of persons to give sworn or unsworn evidence
• Admissibility of evidence
• Withdrawal of an issue from the jury
• Submissions of no case to answer
• The numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration, etc.
• Matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal

Question 36

Questions of fact for the jury include

Answer 36

• Whether the accused stands mute of malice or by visitation of God
• The credibility of the witnesses called and the weight of the evidence adduced; and
• Whether, applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue.

Question 37

Questions of fact which in jury trials fall to be determined by the judge

Answer 37

• Whether the accused is fit to plead
• The existence or non-existence of preliminary facts, i.e. facts which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence
• The sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury)
• The evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in his summing-up to the jury).

Question 38

Division of law/fact in proceedings presided over by lay justices; position of district judges in comparison

Answer 38

In the case of proceedings presided over by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice’s legal adviser. In theory, district judges (magistrates’ courts) are in the same position as lay justices. In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare.

Question 39

Court’s statutory power to exclude evidence

Answer 39

The court’s statutory power to exclude otherwise admissible prosecution evidence is contained in PACE 1984 s. 78(1).

The court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 40

Temporal limit of s.78

Answer 40

Section 78 applies to evidence on which the prosecution propose to rely and, therefore, applications to exclude evidence under the section should be made before the evidence is adduced (and, if reference is to be made to it in the prosecution opening speech, before that speech).

Question 41

General nature of s.78 power

Answer 41

Section 78 may be used to attempt to exclude any evidence on which the prosecution propose to rely.

Question 42

Does s.78 impose a discretionary power?

Answer 42

Section 78 is generally regarded as conferring a discretionary power, even though it does not technically confer a discretion (because if the court decides the test is satisfied, it cannot use its discretion to admit the evidence). The application of s. 78 is very fact-specific; it’s about the ‘feel’ of the case and is not an apt area for hard case law.

Question 43

Court of Appeal interference with s.78 decisions

Answer 43

The Court of Appeal is reluctant to interfere with the decisions of trial judges under s. 78. It has been said that the Court of Appeal will intervene only if the judge has not exercised his discretion under s. 78 at all or has done so but in a Wednesbury unreasonable manner (in which case the court will exercise its own discretion). However, 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 a conviction.

Question 44

Common law power to exclude evidence

Answer 44

Evidence may also be excluded at common law: the court may exclude any admissible evidence which is likely to have (in the minds of the jury) a prejudicial effect out of proportion to its probative value.

Here, the judge will consider weight.

Question 45

Relationship between s. 78 and common law power.

Answer 45

Evidence may be excluded either at common law or under s.78. However, it is notable that the statutory power is wider than the common law discretion. Under s.78, the court is required to consider the effect on the fairness of proceedings and examine how the evidence was obtained. Therefore, potentially probative evidence that would not lead to prejudicial thinking on the part of the jury could be excluded if it would have an adverse effect on the fairness of proceedings for other reasons (e.g. things like denial of the accused’s right to legal advice or the improper use of undercover surveillance). In addition, the common law power appears to be limited to evidence obtained in male fide.

However, for evidence which has already been adduced, only the common law power can be used.