SGS 5: Introduction to Evidence

Question 1

What is evidence?

Answer 1

• Information which goes towards proving or disproving facts

Question 2

When is evidence especially important?

Answer 2

Š Police station (DEAD)
Š Bail (Para 9 factor)
Š Plea before venue (affects which plea)
Š At trial

Question 3

What are the 4 types of witness?

Answer 3

1. Ordinary witness
2. Defendant
3. Co-defendant
4. Spouse / civil partner of defendant

Question 4

What is competence?

Answer 4

• S53(3) YJCEA

- Intelligible etc.

Question 5

What is compellability?

Answer 5

• Fact that anyone who is competent can be forced (compelled) to give evidence in cases.
• Competent = capable of giving admissible / allowable evidence in a court

Question 6

Explain s80(3) PACE?

Answer 6

– specified offence – assault on, injury or threat of injury to anyone <16 yrs, a sexual offence against anyone <16 yrs, or an inchoate of any of the above.

Question 7

Explain the general rule of admissibility?

Answer 7

• All evidence which is sufficiently relevant to the facts in issue is admissible.
• Relevant if it is ‘logically probative of matter which requires proof’ – Kilbourne
• NB. Weighting applied to evidence is a matter for the jury

Question 8

Is all relevant evidence admissible?

Answer 8

• No, not all
• Exclusionary rule may apply.
• Confessions - s76 PACE
• General discretion to exclude prosecution evidence - s78 PACE

Question 9

What is a confession and where is it defined?

Answer 9

• S82(1) PACE (page 150 of materials)
• Any statement wholly or partly adverse to the person who made it - whether made to a person in authority or note.

Sharp: if part adverse, part exculpatory, both are taken together as the same confession

Question 10

Can confessions be used as evidence against the defendant?

Answer 10

• Under s76(1) PACE
• Presumed to be reliable
  • Use this for a question that is based on confession - give a
  ○ definition of confession
  ○ Identify the words that amount to confession
  ○ The general rule is that it is admissible

Question 11

How can a confession be excluded as evidence?

Answer 11

• S76(2) PACE
• If obtained by oppression
• Unreliability
  • If they cannot discharge that burden then the court has to exclude it
  • Look for a causal link

Question 12

Explain unfair evidence?

Answer 12

• S78

- Catch all - wider discretion

Question 13

Explain how confession can be excluded from evidence if it is obtained via oppression?

Answer 13

• S76(8)PACE
• Torture / inhumane or degrading treatment
• R v Fulling - held that the term “oppression” = to be given ordinary dictionary meaning. In determining what amounts to oppression in particular case
• Court may have regard to character & experience of the suspect

Question 14

Explain how evidence can be excluded for unreliability?

Answer 14

• If obtained as result of things said or done which are likely to render confession unreliable - s76(2) PACE
• By the police: R v Fulling - inducements to confess
• Includes any breaches of PACE - R v Delaney: confession is not recorded
• Requires a causal link: “but for” any breach, there would be no confession

Question 15

Explain how there can be exclusion of evidence under s78 PACE?

Answer 15

R v Sang
R v Walsh

“such adverse impact on the fairness of proceedings that the court ought not admit it”

Question 16

r v sang? re exclusion of evidence

Answer 16

• prejudicial effect outweighs probative value

Question 17

r v walsh? re exclusion of evidence

Answer 17

• Significant breaches of PACE and COP - usually be required
• E.g. interview taking place outside of police station

Question 18

What are the rules surrounding Opinion evidence?

Answer 18

• Generally inadmissible
• Fine line between percieved fact and opinion
• Expert witnesses - e.g. handwriting experts / medical practitioners can

Question 19

BAD CHARACTER - what is the definition of this?

Answer 19

• S98 CJA 2003
• Evidence of / disposition towards misconduct.
• Only admissible via one of the seven s101 gateways.
• All that has to be thought about - previous convictions. This is the only context that this would come up in the assessment.
• By definition - misconduct is referred to in s98
• “relevant to an important matter”
• Propensity to commit offences of the type charged
• Campbell = offences of general dishonesty to not show that you are a good liar.
• Circled references are the only ones to worry about for revision.

Question 20

Explain the issue of “bad character” being relevant to “an important matter in issue between D & P”

Answer 20

• This is in s101(1)(d)
• 2 elements to this gateway
• Way of showing this:
  • If there is an offence of the same description.
  • E.g. a s47 offence - would have to be charged as an ABH under this same section.
  • Previous convictions for another ABH would come under this
• Offence of the same category
  • Theft act offences
  • E.g. theft, shoplifting or burglary are all charged under the same category.
  • Anything that is charged under the Theft Act = would be in the same “category”

Question 21

What was the Summary of the Hanson case

Answer 21

• Propensity to commit offences of the same kind MAY be proved via offence of the same description / same category
• Hanson case is a reminder that to commit offences of the same type - can look at it, and say “is it an offence of violence” - because offences of violence are generally of the same kind.
• Same KIND = HANSON

Question 22

Explain the first gateway of making Bad Character evidence admissible, under s101(1)(d)&raquo_space; (a)

Answer 22

• This focuses around D’s propensity to commit offences of the type charged – s103(1)(a)
  Š Offences of the same description or category – s103(2)(a)&(b)
  Š R v Hanson – no minimum number of events, a single previous conviction probably not sufficient, and ‘propensity’ is not limited to categories or types of convictions .: e.g. assault can help with showing a propensity to commit violence.
  • Just one offence - does this really show a propensity?
  • Generally one does not show a propensity unless there are unusual features about it

Question 23

Explain the first gateway of making Bad Character evidence admissible, under s101(1)(d)&raquo_space; (b)

Answer 23

• Focuses on D’s propensity to be untruthful – s103(1)(b)
  Š This relates to how D may be conducting his defence
  Š R v Hanson – could include a prior history of convictions that amount to dishonesty e.g. perjury, deception.
  Š R v Campbell – evidence of past untruthfulness of limited help
• Using Hanson if the prosecutor
• Using s103 as the defense argument

Question 24

What are the 2 possible arguments that a defendant can use against use of bad character evidence?

Answer 24

(PAGE 68)
† s103(3) – Unjust > Due to time lapsed since convictions or for any other reason
• Length of time since the conviction
• would be unjust for it to happen
• Length of time = will be obviously long, like 10+ years.
† s101(3) – Adverse on fairness
• similar to s78
• Court ought NOT to admit it
• Going to have big impact on the minds of the jury

Question 25

What is the key issue surrounding identification of the defendant?

Answer 25

• The preconditions are that
  (1) D disputes identification evidence, and

(2) Identification evidence is wholly or substantially the only evidence implicating D
- Cannot use previous convictions generally

Question 26

What are the “Turnbull guidelines” in terms of identification of the defendant?

Answer 26

• A - amount of time under observation try to evaluate whether this strengthens the evidence, or weakens it. E.g a long time - may have lower quality of observations
• D - distance: 25 metres - would be quite a lot for identifying a person
• V - visibility - if there is rain / darkness / dim lighting / drinking or drugs could have affected someone’s vision.
• O - obstruction - window that was steamed up between them, or barriers etc. busy roads
• K - known / seen before?
• A - any reason to remember - if they are old friends / colleagues. If they actually DID work together: might strengthen their memory / if she did not - weakens because it might just be because witness is confused?
• T - time lapse: between seeing suspect and making ID.
  • Could substantially weaken the evidence
• E - errors / material discrepancies:
  Between first / subsequent

Question 27

What are the three aspects of the Turnbull warning?

Answer 27

• Judge should warn jury of special need for caution before convicting
• This special warning has 3 elements

1. Reason for warning
2. Examine circumstances of identification (going through ADVOKATE factors)
   
   3. Remind jury of any weaknesses

• Judge should withdraw the case from the jury
• And direct an acquittal
• If the ID is so poor - and there is a poor prosecution case
• Weak / unsupported / if it is so weak that it would be unsafe to convict.