The sufficiency of evidence Flashcards
What are the crucial facts (facta probanda) which must be corroborated by evidence?
Morton v HMA 1938 JC 50.
1. The offence was committed.
2. It was the accused who committed the offence.
What does the corroboration rule mean in practice?
There must be two separate sources of evidence to prove the crucial facts thus indicating guilt.
- If even one crucial fact is not corroborated, there can be no conviction (Lockwood v Walker 1910 SC (J) 3).
What happens if evidence cannot be corroborated sufficiently?
Defence must make a submission for ‘NO CASE TO ANSWER’ which would bring proceedings to a halt (CP(S)A95 ss97 and 160).
If this is successful, the accused will be acquitted.
Crown could appeal the success of a NCTA (‘95 Act s107A).
How is the question of the sufficiency of evidence to be interpreted?
Mitchell v HMA 2008 SCCR 469 (para 106).
- In the way which is most favourable to the Crown.
Not all facts in dispute between the parties are crucial facts requiring corroboration. What is the authority for this?
Yates v HMA 1977 SLT 42.
Evidence does NOT need to be incriminating to be corroborative! What is the authority for this and what else do we know?
Fox v HMA 1998 JC 94 (at 100 per Rodger LJG).
- “Evidence which supports or confirms the direct evidence of a witness” is corroborative.
Fraser v HMA [2013] HCJAC 117.
- Cases may be entirely circumstantial and involve no direct evidence.
Where there is one positive clear source of evidence identifying the accused at trial as the perpetrator of the offence then very little else is required to corroborate. What is the authority for this?
Ralston v HMA 1987 SCCR 467.
What is the rule where a witness has identified the alleged perpetrator to the police but cannot identify the accused at trial?
Muldoon v Herron 1970 JC 30.
- The Crown may lead evidence of the previous positive identification.
This is the same where the witness positively identified the accused at a VIPER parade in advance of the trial (Sangster v HMA [2017] HCJAC 4).
What is the rule in Howden v HMA 1994 SCCR 19?
- Applies where it can be established, beyond reasonable doubt, that two or more offences have been committed by the same person and there is corroboration of identification of the accused in one of the offences.
- In this instance, the Crown do not need to lead evidence of the identification in respect of the other charges.
What is the Moorov doctrine?
Leading case is Moorov v HMA 1930 JC 68.
- Allegations of crime can be mutually corroborative if they “are so interrelated by character, circumstances and time so as to justify an inference that they are parts of a course of criminal conduct systematically pursued by the accused” (MR v HMA 2013 JC 212).
- Not confined to sexual offences or domestic abuse (HMA v McQuade 1951 JC 143).
What must sometimes be established by the evidence before the Moorov doctrine can apply?
CS v HMA [2018] HCJAC 54 (at para [11] as per Lady Paton).
- “The underlying intent or purpose”.
Character and circumstances of the offences - the Moorov doctrine.
- Crimes do not need to have the same name, simply a clear connection between the two (Carpenter v Hamilton 1994 SCCR 108).
- In sexual offences, it does not matter that only one offence involved penetration, provided they are part of a course of conduct systematically pursued by the accused (Jamal v HMA [2019] HCJAC 22.
- In sexual abuse of children by an adult, this fact alone will constitute a “special, compelling or extraordinary circumstance” allowing Moorov to be applied (Adam & Daisy v HMA [2020] HCJAC 5).
Time of the offences - the Moorov doctrine.
- It is not uncommon for the Crown to seek to rely upon the operation of the doctrine in instances where the charges are separate by upwards of ten years (NOTE: this was not always the case) (KH v HMA 2015 SCCR 242).
- The more similar the offences are, the less important the time gap will be (AS v HMA [2014] HCJAC 135, as per Carloway LJC at para [10]).
What is the test for irregularly obtained real evidence?
Lawrie v Muir 1950 JC 19 (Cooper LJG)
Conflict between:
(a): Interest of citizen to be protected from illegal or irregular invasions of liberties by authorities.
(b): Interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.
WHETHER ANY GIVEN IRREGULARITY OUGHT TO BE EXCUSED DEPENDS UPON THE NATURE OF THE IRREGULARITY AND THE CIRCUMSTANCES UNDER WHICH IT WAS COMMITTED.
Where is irregularity in obtaining of evidence excused?
Excused: HMA v Hepper 1958 JC 39 (permission for search granted by accused, removal of an item which was incriminatory, in a theft case).
Not excused: HMA v Turnbull 1951 JC 96 (warrant obtained, files allowed for one certain individual, files from many clients were taken which contained incriminating evidence, FISHING EXPEDITION, just looking to see if anything incriminatory).
Sadiq v HMA [2017] HCJAC 67 (urgency in police actions, some admissible evidence, after they had been granted entry, some evidence was very clear and present, but inadmissible evidence from additional search with no warrant).
