Evidence cw


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not exactly A plus material but enough to get you starte on some of the concepts on law of evidence

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Evidence cw

  1. 1. 06147089 EVIDENCE 1
  2. 2. 06147089 QUESTION A:This part will look at what constitutes hearsay evidence and it’s admissibility underthe Criminal Justice Act 2003.Hearsay under section 114(1)1 is defined as a statement not made in oral evidencein the proceedings admissible as evidence of any matter stated. Oral evidenceincludes evidence which by reason of any disability, disorder or other impairment isgiven in writing, by signs or by way of any device by a person called as a witness 2. 3Chandrasekera v R it was held that the woman effectively stated that the accusedhad cut her by nodding her head. A statement is any representation of fact or opinionmade by a person by whatever means including a representation made in sketch,photofit or pictorial form4. A matter stated is one which is stated for the purpose ofcausing another person to believe the matter or cause another person to act or amachine to operate on the basis that the matter is as stated5. Section115(2) giveslight on the present position whereby statements which are not based on humaninput falls outside the ambit of the hearsay rule, therefore objects such as tapes,films or photographs which directly record the commission of an offence anddocuments produced by machines which automatically record a process or event areexcluded from hearsay evidence6. Therefore from our scenario the film automaticallyrecorded by a security camera would not be under hearsay but will be real evidence.Thus in R v Spiby7 a print out from a computerised machine which automaticallyrecorded information such as duration of calls was admitted as real evidence.In deciding whether such evidence is admissible, section 69 8provides that astatement in a document produced by a computer is not admissible as evidence incriminal legal proceedings unless it can be shown that there are no reasonablegrounds for believing that the statement is inaccurate because of improper use of thecomputer; and at all times the computer was operating properly or, if not, that anyrespect in which it was not operating properly or was out of operation did not affect1 Criminal Justice Act 20032 Section 134(1) CJA 20033 [1937] AC 220, PC4 Section 115(2)CJA 20035 Section 115(3)6 Keane. A, Modern Law of Evidence, 7th edn, Oxford University Press, New York, 2008 pg 2827 [1990] 91 Cr App R 186, CA8 Police and Criminal Evidence Act 1984 2
  3. 3. 06147089 9the production of the document or the accuracy of its contents. In Castle v Crossheld that the printout was admissible and the sergeant was entitled to give evidenceof all that he had observed and interpreting if necessary the printout. Therefore it canbe suggested that the film provided by Dave can be admissible so long as it isaccurate and that at all times the computer was operating properly. This is well 10illustrated in the case of Taylor v Chief Constable of Cheshire which involved anout of court video cassette recording by a security camera which showed a personshoplifting, it was played to the police who identified the person shown as Taylor butwhen it was returned to the shop it was accidentally erased from the cassette. Theofficers were allowed to give evidence of what they had seen on the video andTaylor was convicted of theft but on appeal it was argued that the evidence of theofficers was hearsay because they did not witness the incident personally or directly.The appeal was dismissed on grounds that what the officers saw on the video wasno less than the evidence of a bystander who witnessed the incident by direct vision.For this reason Dave will be permitted to give evidence at trial of what he saw on thefilm.QUESTION B:This question will explain the admissibility of hearsay statements in cases where awitness is unavailable, look at situations where the court has a general discretion toexclude evidence and also look at the exclusion of unfair evidence under section 78of PACE in relation to Article 6(d) of the European Convention of Human Rights.“Hearsay is not the best evidence and it is not delivered on oath. The truthfulnessand accuracy of the person whose words are spoken to by another witness cannotbe tested by cross-examination, and the light which his demeanour would throw onhis testimony is lost.”11 Hearsay is suggested to be the best evidence availablewhere the original evidence can no longer be produced12. The written statementgiven to the police by Dave is thus suggested to be a hearsay statement. Section116(1, 2, 3, 4) provides that in a criminal proceeding hearsay evidence is admissible9 [1985] 1 All ER 8710 [1987] 1 All ER 22511 Teper v R [1952] AC 480 per Lord Normand at 48612 Law Commission’s Evidence in Criminal proceedings: Hearsay and Related Topics, 10 February 1996 pg23 (paragraph 3.2) 3
  4. 4. 06147089if oral evidence given by the person who made the statement would be admissible asevidence of that matter and the person who made the statement must be identified tocourt’s satisfaction. In cases of unavailability of the witness, hearsay will beadmissible if the relevant person is dead, unfit to be a witness because of his bodilyor mental condition, is outside the United Kingdom and is not reasonably practicableto secure his attendance, cannot be found although reasonable practical steps havebeen taken to find him, due to fear relevant person does not give or does notcontinue to give oral evidence so the courts give leave for the statement to be givenin evidence. Leave is to be given only if the courts consider that the statement is tobe admitted in the interest of justice having regard to statement’s contents, risk ofunfairness to the proceedings to any party to the proceedings.Since Dave has moved to Australia, the criterion used is section 116(2)(c) where thestatement is admissible when the relevant person is outside the United Kingdom andit is not reasonably practicable to secure his attendance. The person seeking to relyon the evidence should make reasonable efforts to bring the person required tocourt13, but also enable the court to take into account all the circumstances of thecase to include the expense of adducing the evidence by alternative procedures, theseriousness of the case, and the importance of the information in the statement.Another factor to be considered is whether it would be reasonably practicable tosecure the evidence for trial at a later date14 thus in R v Bray 15 it was not reasonablypracticable to secure the attendance of a person who was overseas for some 16months before the trial begun. Also in R v C it was held that what is reasonablypracticable should be judged on the steps taken by the party to ensure theattendance of the witness. Therefore the police are to show in court that they tookreasonably practicable steps to ensure Dave’s attendance.Because Dave is not available to give oral evidence, he cannot be cross-examinedto show his competence nor his credibility which is equally important in theproceedings as Article 6(3)(d)17 provide that the accused has the right to examine or13 R v Gonzales de Arango (1991) 96 Cr App R 299, 403–404, per McCowan LJ14 Law Commission’s Evidence in Criminal proceedings: Hearsay and Related Topics, 10 February 199610415 [1988] 88 Cr App R 35416 [2006] Crim LR 637, CA17 The European Convention of Human Rights 4
  5. 5. 06147089have examined witness against him. In R v Al-Khawaja18 it was argued that Article6(3)(d) is one of the specific aspects of a fair trial so if that right was denied then thequestion would be if the proceedings as a whole would be fair. The European Courthas recognised that the Article 6(3)(d) right is not absolute, and much will depend onwhether the defence has the opportunity to challenge, at some stage, the missingwitness19. Under section 126(1) the court has discretion to exclude evidence if thestatement was made as hearsay and if excluding the evidence outweighs the casefor including it.As a result, Dave’s statement under section 116(2)(c) would be admissible as he isoutside the United Kingdom but it is up to court to decide if it would be excluded.QUESTION C:This section will deal with a child witness and look at the competence of the child ingiving evidence and special measures directions given by the court to vulnerable andintimidated witnesses.Section 53(1)20 states that at every stage in criminal proceedings all persons are(whatever their age) competent to give evidence unless it appears to the court thatthe person is not able to understand the questions given to him as a witness ands/he cannot give answers to them which can be understood21. In R v MacPherson22it was held that an infant who can only communicate in baby language will not becompetent but a child who can speak and understand Basic English will becompetent. It was also held in R v D23 that a person will be treated as incompetent ifhe is unable to distinguish truth from fiction or fact from fantasy. The questionwhether the witness is competent to give evidence will be raised either by the partyto the proceedings or the court out of its own motion24, it would therefore be up to theparty calling the witness to satisfy the court that, on the balance of probabilities, the18 [2006] 1 WLR 1078, CA19 David Ormerod: Hearsay pg 28 paragraph 6.1320 Youth Justice and Criminal Evidence Act 199921 Section 53(3) YJCEA 199922 [2006] 1 Cr App R 459, CA23 [2002] 2 Cr App R 5524 Section 54(1) of the Youth Justice and Criminal Evidence Act 1999 5
  6. 6. 06147089witness is competent25. Rhian is thus competent to give evidence in criminalproceedings but if the competence is challenged then it’s up to the police to provethat she is competent. Because she has not attained the age of fourteen herevidence will not be sworn evidence26.A witness under the age of seventeen at the time of the hearing is eligible forassistance27. The court must determine whether any of the special measuresavailable in relation to the witness would be likely to improve the quality of evidencegiven by the witness and if so determine which of those measures would be likely tomaximise the quality of such evidence and to give a direction providing for themeasure to apply to the evidence given by the witness. The special measuresavailable for children under 17 are under sections 23 to 29.These are screeningwitness from accused, evidence of live link, evidence given in private, removal ofwigs and gowns, video recorded evidence in chief, video recorded cross examinationor re-examination and examination of witness through intermediary. Section 28 videorecorded cross examination and re-examination has never been brought into force.Under section 21(3) the courts must in the case of a child witness give specialmeasures directions in a way that it provides for any relevant recording to beadmitted under section 27 (video recorded evidence in chief) and it must provide forany evidence given by the witness which is not given by means of a video recordingto be given by a means of a live link in accordance with section 24. Live link means alive television link or other arrangements whereby a witness, while absent from thecourt room is able to see and hear a person there and be also be seen and heard bythe judge or justice and the jury28.Accordingly, Rhian has several special measures which can be used in court as sheis a vulnerable witness and is eligible for assistance on grounds of age. Since she isnervous, a special measure through evidence by live link under section 24 issuggested to be the best measure to be used in her situation.QUESTION D:25 Section 54(2)YJCEA 199926 Section 55(2)(a)27 Section 16(1)(a)28 Section 24(8) YJCEA 1999 6
  7. 7. 06147089This question will look at Inconsistent statements and if they can be admissible asevidence under hearsay.If a person gives oral evidence and he admits making a previous inconsistentstatement or a previous inconsistent statement made by him is proved by virtue ofsection 3, 4 or 5 of the Criminal Procedure Act 1865, the statement is admissible ofany matter stated of which oral evidence by him would be admissible 29. Section 3, 4and 5 shows that when a witness does not admit to making the previous statement(is being hostile) then proof can be given that they did in fact make the statement.The new position is that once the statement is admitted it becomes evidence of thetruth of matters stated in it if oral evidence of that matter would be admissible. R v 30Joyce Joyce the defendant was positively identified by several witnesses whomade detailed statements setting out the certainty of their identification. At trial thewitnesses all claimed that they were now uncertain as to their identification, contraryto their previous statements. The clear inference was that the witnesses had beenput under pressure to change their evidence. The judge admitted the previousstatements as evidence of the original identifications and the jury convicted on the 31basis that these statements were true. But on the other hand, in R v W where MrsW had previously stated to the other people including her neighbour that her son hadpushed her down the stairs and set fire to her hair, when cross-examined said henever did and that she slid and fell on the stairs, it was held that admitting evidencewithout making Mrs W available to the defence for cross-examination would havehad such an adverse effect on the fairness of the proceedings that the evidenceought not to be admitted.Steve’s statement to the police is inconsistent with his statement in crossexamination, on one hand if he was put under pressure which caused him to changehis mind then that evidence would be admissible, but if under section 7832 havingregard to all circumstances including circumstances in which the evidence wasobtained the admission of the evidence would cause such an adverse effect on the29 Section 119(1) Criminal Justice Act 200330 2005] EWCA 178531 The Times 2 May, (2003)32 Police and Criminal Evidence Act 1984 7
  8. 8. 06147089fairness of the proceedings then the court would not admit it. It is the court’s decisionon whether to include or exclude the statement given to the police as evidence.QUESTION E:This question will deal with admissibility of the defendant’s bad character in relationto her previous convictions. It will look at what constitutes bad character, the rulesrelating to the admissibility of bad character evidence and circumstances whenevidence of bad character would be excluded.Bad character is defined as evidence of, or of a disposition towards, misconduct33.Misconduct means the commission of an offence or other reprehensible conduct34. InR v Bowell and Dowds35 it was emphasised that evidence of previous convictionwhether in relation to the accused or some other person must be made available toall parties in good time in order to make a decision as to the admissibility of theconviction. The definition of bad character is wide enough to apply to conduct arisingout of a conviction, or conduct where there has been an acquittal36. This was thecase in R v Z37 where the defendant was being charged with rape and the courtadduced evidence of previous charge of rape which was acquitted. In criminalproceedings evidence of the defendant’s bad character is admissible38. Thedefendants bad character is admissible if all parties agree that it should be39, section101(1)(b) provides that it is admissible if it is adduced by the defendant himself or onhis behalf or if it is elicited by cross-examination on his behalf. It is also admissible ifit is important explanatory evidence, evidence is important explanatory evidence ifwithout it the court or jury would find it difficult to understand other evidence in thecase and its value for understanding the case as a whole is substantial 40.In R vEdwards41 a statement of an identification witness that she was able to recognise the33 Section 98 Criminal Justice Act 200334 Section 112(1) CJA 200335 [2005] 2 Cr App R 2736 http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/#a03, 28/02/201037 [2000] 2 Cr App R 28138 Section 101(1) CJA 200339 Section 101(1)(a) CJA 200340 Section 101(1)(c) and 10241 [2006] 1 Cr App R 3 8
  9. 9. 06147089defendant because she used to buy heroin from him was held as importantexplanatory evidence in relation to the basis of her identification.Section 101(1)(d) explains that evidence of defendant’s bad character is admissibleif it is relevant to an important matter in issue between the defendant and theprosecution. Matters in issue between the defendant and the prosecution includewhether the defendant has a propensity to commit offences of the kind or has apropensity to be untruthful42. Offences of a kind are established by evidence thats/he has been convicted of an offence of the same description as the one with whichhe is charged or of the same category as prescribed by order of the Secretary ofstate but the longer the length of time since conviction the less likely to beadmitted43.With propensity to commit offenses of the kind with which is charged R v Nguyen44showed that evidence of propensity is not restricted to previous convictions when theprosecution was allowed to introduce the fact that he had glassed someone elsedays before the fight in the pub where he also glassed M. It was held that thisshowed he had propensity to commit violent offences. Another important case is thatof R v Brima45 in a murder case, two previous convictions of assault one involvingactual stabbing and the other robbery involving holding a knife to victim’s throat werecapable of establishing propensity to commit offenses charged and made it morelikely that B had committed the offence charged. In relation to our scenario,Carolyn’s previous convictions under gateway D (section 101(1)(d)) can be admittedto show propensity to commit offences of the same kind as she was convicted ofassault and criminal damage. But if having such a propensity makes her seem to beguilty of the offence other than showing her likelihood of committing such an offencethen her previous convictions would be inadmissible46 and the court ought not toadmit it if its admission would have such an adverse effect on the fairness of theproceedings.47 48R v Hanson provides that the jury should be directed that: they should notconclude that the accused is guilty merely because s/he has previous convictions,42 Section 103(1) CJA 200343 Section 103(2)-(4)44 [2008] EWCA Crim 58545 [2007] 1 Cr App R 316, CA46 Section 103(1)(a)47 Section 101(3)48 [2005] 2 Cr App R 21 9
  10. 10. 06147089that although the convictions may show propensity, it does not mean that s/hecommitted this offence, that jury should decide whether they actually showpropensity, that they must take into account what the defendant said about hisprevious convictions and that they should take into account all the other evidence inthe case49.Other sections for admissibility of previous convictions are important matter in issuebetween the defendant and co-defendant (e), if it is evidence to correct a falseimpression given by defendant (f) and where defendant attacks another person’scharacter (g)50.Thus Carolyn’s previous convictions can be admitted under Section 101(1) but issuggested that gateway D could be more appropriate as it has more likeliness ofbeing admissible but it is also up to the jury to decide if they do show propensity.49 Keane. A, Modern Law of Evidence, 7th edn, Oxford University Press, New York, 2008pg 48350 Section 101(1) 10
  11. 11. 06147089BIBLIOGRAPHY:Keane. A, Modern Law of Evidence, 7th edn, OxfordUniversity Press, New York, 2008Law Commission’s Evidence in Criminal proceedings:Hearsay and Related Topics, 10 February 1996David Ormerod: Hearsayhttp://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/#a03, 28/02/2010 11