10. Preliminary evidential matters PDF

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10. Preliminary evidential matters basic principles of evidence tribunals of fact and law common law powers to exclude evidence and discretionary power to exclude under section 78 of PACE Evidence (Overview) (Mag and Crown)Title Details Summary Principal definitionsFact in issue means the facts whic...

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10. Preliminary evidential matters 1. basic principles of evidence 2. tribunals of fact and law 3. common law powers to exclude evidence and discretionary power to exclude under section 78 of PACE Evidence (Overview) (Mag and Crown) Title Principal definitions

Details Fact in issue means the facts which the prosecution or defence bear the burden of proving or disproving (Defence will not have a BURDEN to disprove, only prove defence) The legal ingredients of the charge or defence will determine the facts in issue. A fact in issue will CEASE to be a fact in issue if  Admission of fact  Expert opinion evidence is opinion and therefore cannot be admitted as fact, UNLESS if parties accept the opinion and admits it as a fact. Relevance means any two facts which are so related to one another that according to the common course of events, one (by itself or in connection with other facts) proves or renders improbable the past, present or future of the other. (or logical probative or disprobative) Cornerstone rule All evidence that is sufficiently relevant to the facts in issue are admissible.

Admissions

Exceptions  Where no jury, if properly directed to the deficiency, would place any weight on it. Admissions are usually made by legal representative orally or in writing. Admissions must be recorded down if (a) Both parties jointly agree on facts (b) One party agrees a fact that is put forward by the other Admissions are shown to jury unless it contains material that should not go before the jury.

Good

Withdrawal of admission needs leave. It will unlikely be granted unless (a) Can show it was a mistake (b) Can show it was a misunderstanding Good character (like previous consistent statements) cannot be used to

Summary

character of prosecution witness

Real evidence

Tribunals of fact and law

bolster the prosecution witness’s credibility. The judge must consider the following (a) Generally, evidence of good character is NOT admissible to show the PW is a generally truthful person who should be believed (b) Evidence may be admissible if it is relevant (c) What may be relevant is not limited (d) If it is relevant, the judge must ensure that it is not used to water down the burden of proof of prosecution or water down a good character direction for the accused. Note: Where the accused adduces good character, the prosecution may also adduce good character for PW if it they disagree on a particular issue (this is with limitations, see chapter 15)  Physical objects that are relevant.  Must be brought before the tribunal of fact o All evidence must be accompanied by some written statement about the object and how it is relevant (otherwise little to no weight) o Some evidence MUST be accompanied by expert (e.g. handwriting evidence)  May “view” the object if it is impracticable to bring to court.  The court must set ground rules for the viewing o All parties should attend (especially the accused) o In what order will it be viewed o Who will speak first Magistrate: Judge is tribunal of law and fact  Lay justices should seek and accept the opinions of law of the justices legal adviser  District judges usually don’t have to, but they can (if any legal adviser) Crown: Judge is tribunal of law; jury is tribunal of fact  Lay magistrates, if in Crown Court, should defer to the Crown Court judge on questions of law Example The law on the defence of self-defence is that it must be reasonable and proportionate. A child threatens adult with a toy sword, adult shoots the child with a gun. In this case, the court will direct the jury that self-defence cannot apply in law on the facts and the jury is bound to conclude that the defence was not acting in self-defence. It is ultimately up to the jury to decide if the defence was made out.

Exclusion of

s. 78 – unfairness

evidence

A discretionary power to exclude, where waving regard to all of the circumstances, the admission of evidence would be so unfair the court ought not to admit it. Court will consider (a) All the circumstances (b) The adverse effects (c) Whether it will render the conviction unsafe. Very hard to appeal, but may appeal if (a) Applied s. 78 using Wednesbury unreasonableness (objective test) (b) Or applied it wrongly. Example  Where a confession was obtained illegally, improperly or unfairly  Any breach of PACE

Common law exclusion

Test (a) Any admissible evidence likely to have a prejudicial effect out of proportion to (outweighs) its probative value (b) Exclude to fulfil overriding duty to a fair trial Note: Even if something is technically admissible, the judge has a discretion to exclude it (if not careful in exercising discretion, may be appealed) Example  Police eavesdropping which is not in breach of PACE but might give the police an inaccurate snapshot of what was actually said....