Evidence I (relevance, application for dismissal, submission of no case to answer, abuse of process application) Flashcards

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1
Q

What are ‘facts in issue’? What are they specifically for prosecution?

A
  • Those that either party needs to (dis)prove it case
  • For prosecution it’s the facts needed to prove offence(s) charged
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2
Q

In what 3 ways can evidence be established other than a witness giving live evidence?

I.e. proving facts by means other than calling evidence

A
  1. Agreeing a witness statement as true by consent of parties - simply read out in court
  2. Agreeing any fact between parties - advocates in case will agree fact is so (fact in writing and lawyers sign)
  3. Judge/jury take ‘judicial notice’ of fact
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3
Q

What dos it mean to take ‘judicial notice’ of a fact? What can notice not be taken on?

A
  • Where judges could look up the answer (saves parties having to prove every fact tediously)
  • Cannot take notice on personal matters that judge happens to know but are not generally known
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4
Q

What are the different type of evidence? Which is most common?

A
  • Oral evidence given by witness in court (most common)
  • Written form
  • Agreed statements
  • Admitted facts
  • ‘Real’ evidence
  • ‘Direct’ evidence
  • ‘Circumstantial’ evidence
  • A ‘view’ (juries can visit a scene of crime/leave court to view object)
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5
Q

What is the difference between real, direct and circumstantial evidence?

A
  • Real = objects/things brought to court for inspection e.g. document
  • Direct = evidence a witness gives of having had direct experience of matter in issue e.g. witness saw D at station at midnight (= direct oral evidence)
  • Circumstantial = evidence from which facts are inferred e.g. train ticket found in D’s pocket showing train ticket for just before midnight at station
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6
Q

What is the most fundamental principle of evidence?

A

Evidence must be relevant to be admissible

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7
Q

How is relevance established?

A

By whether evidence is ‘logically probative’ of a fact in issue e.g. does evidence tend to prove/disprove fact in issue

R v Usayi [2017] - D charged with sexual assault; defence had a note that tended to suggest complainant had earlier incorrectly indicated her mother had died - defence argued this showed her to be dishonest - CoA indicated evidence was insufficiently relevant regardless of hearsay argument and it should not have been admitted; insufficient bearing on issues at hand

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8
Q

What do the exclusionary rules do after relevance is considered?

A

Prevent evidence from being admitted that is relevant but would damage fairness of trial

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9
Q

Who allocates weight to a piece of evidence? How will they decide how to do this?

A

The jury - who will be persuaded by advocates as to what weight they should attach to evidence

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10
Q

What is the difference between tribunal of fact and tribunal of law? What does each comprise in magistrates’ and Crown?

A

Tribunal of fact = determine facts

  • Mags = bench of magistrates / District Judge
  • Crown = jury

Tribunal of law = determines law (and admissibility of evidence)

  • Mags = magistrates / District Judge
  • Crown = judge
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11
Q

What is the problem with tribunals being played by same people in magistrates’? What course of action can be pursued to avoid this?

A
  • In exclusion of evidence hearings, the same people hear the evidence, exclude it, and then considers guilt (supposedly with that evidence out of their mind)
  • Strong reason for Ds to prefer trial in Crown
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12
Q

Who is the burden of proving elements of offence always on? What is the standard to which proof must be put?

A
  • Prosecution will always have burden of proving elements of offence
  • Standard = beyond reasonable doubt (so that you are sure of guilt)
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13
Q

What burden does the defence have when it challenges the prosecution’s case?

I.e. asserts it is wrong

A

Does not have one - even when it calls evidence/makes positive assertions (was not me!) it does not mean burden has shifted, but simply that they are engaging with issues prosecution must prove

Legal and evidential burden exist for prosecution alone and judge not called upon to check sufficiency of defence evidence

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14
Q

When will the burden be on the defence? And what will the standard be?

A
  • When it runs an active defence e.g. DimRes
  • Standard is balance of probabilities

Do not confuse ‘active defence’ with challenging prosecution’s case

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15
Q

What is the difference between legal and evidential burden?

A
  • Legal burden = requirement to prove an element of your case to prescribed standard
  • Evidential burden = burden to raise some evidence to satisfy judge that matter should be argued before jury
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16
Q

How does the tribunal of law (judge) ensure evidential burden is met?

A

Will ensure some evidence has been raised on issue of fact before tribunal of fact (jury) can find fact - otherwise judge can and must intervene where the evidential burden is not discharged

Where evidential burden satisfied; judge approving sufficiency of evidence to make it viable to argue that fact is proved before jury

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17
Q

What happens to the evidential burden to adduce evidence where D concedes a fact in issue?

A

It is lifted

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18
Q

If you have the legal burden to prove a fact in issue, what will you almost always have?

A

The evidential burden of ‘passing the judge’ with the same evidence

I.e. legal and evidential burdens are attached

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19
Q

What is the only regular example of where legal and evidential burden become detached?

A

Self defence - judge requires some evidence to be raised to put issue before jury but no actual standard of proof required - if judge content then prosecution has to disprove self-defence to show use of force was unlawful

Effectively nothing has changed: burden always on prosecution to prove force was unlawful - but now proving force was unlawful requires proof force was not in self-defence

Defence just needs some evidence of self defence

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20
Q

Is an alibi a matter for the defence to prove?

A

No - prosecution retain burden of disproving alibi beyond a reasonable doubt

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21
Q

What are the different ways of excluding evidence and/or bringing a prosecution case to an end?

The exclusion of evidence can result in a case coming to an end

A
  • Applications for dismissal
  • Submissions of no case to answer
  • Applications to exclude evidence under s78
  • Applications to exclude evidence under s76
  • Applications to exclude evidence under preserved common law provisions [s82(3) PACE]
  • Abuse of process applications
22
Q

What is an application for dismissal?

A

A pre-trial application to have charges against D dismissed

23
Q

For an application for dismissal to be made, what must this be after and before? Who is an application made to and if D wishes to make an oral application what must they do?

A

Application can be made:

  1. After D is sent by magistrates’ for trial in Crown and served with evidence relating to offence; and
  2. Before D is arrainged (offence put to D and pleads)
  • Application made to Crown Court Judge
  • If D wishes to make oral application they must give written notice of intention to do so

I.e. can only be made in Crown

24
Q

When considering an application to dismiss a charge, what should the judge take into account in terms of the evidence?

A

The whole of the evidence, rather than viewing matters in isolation from their context or other evidence

25
Q

What is the test for dismissing a charge? I.e. what must be the evidence against applicant not be

On an application for dismissal

A

Judge shall dismiss a charge if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted

26
Q

What is the test for dismissing a charge ultimately the same test as?

A

The test to be applied where defence makes a submission of no case to answer

27
Q

What is a submission of no case to answer?

A

A submission after all prosecution evidence is presented at trial that there is no case to answer on any (one) charge by D

28
Q

What is the test to be applied where the defence makes a submission of no case to answer (and on application for dismissal)?

2 limbs of R v Gailbraith

A

Judge should stop the case where:

  1. There is no evidence that crime has been committed by D; or
  2. Prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it
29
Q

How would prosecution evidence, taken at its highest, not be enough for a properly directed jury to properly convict on it?

A

Where integrity of existing evidence is open to question and judge decides that conviction could not be properly founded upon it (even at highest)

30
Q

Where should judge allow the matter to be tried by the jury even where the evidence is open to question?

A

Where the strength/weakness of evidence depends on the witness’ reliability/other matters that are within province of jury

31
Q

What does this mean where credibility is the issue with the evidence?

This = Where the strength/weakness of evidence depends on the witness’ reliability/other matters that are within province of jury

A

As issues of credibility generally matters for tribunal of fact (jury/magistrates) to consider in reaching verdict, such issues will not usually result in case being stopped/submission of no case to answer

32
Q

When and in what court is the defence entitled to submit to judge that there is no case to answer?

A
  • After prosecution has presented all evidence (half-time submission)
  • Made in magistrates’ or Crown

Only at this stage that the entirety of the prosecution case against a defendant can be considered

33
Q

Do the jury witness the submission of no case to answer?

A

No - made in their absence

34
Q

In the Crown court, what is the consequence of a successful and unsuccessful submission of no case to answer on the jury?

A
  • If successful = will be instructed to enter not guilty verdict
  • If unsuccessful = not informed
35
Q

What is the difference between application for dismissal and submission of no case to answer in terms of where they can be made?

A
  • Application for dimissal in Crown only (as needs to be sent there first)
  • Submission of no case to answer in both
36
Q

Does a half-time submission only occur after an application by the D?

A

No - court can make on its own initiative

37
Q

What must the court do before it acquits on the grounds that prosecution evidence is insufficient?

A

Give prosecution the opportunity to make representations (reply to application)

38
Q

What is there not an obligation for either magistrates’ or Crown to do re a submission of no case to answer?

A

Give reasons when rejecting a submission of no case to answer

39
Q

What evidence can be excluded under s78?

Covered more later

A

Evidence on which prosecution intends to rely only

I.e. prosecution cannot rely on s78

40
Q

Other than the prosecution, what other party cannot rely on s78 to exclude evidence of the D?

A

A co-D!

41
Q

What is the preserved common law under PACE s82(3) that can exclude evidence? Is it used today?

A
  • Gives courts discretion to exclude evidence where its prejudicial effect outweighs its probative value
  • Little relevance today due to wide-ranging statutory powers of s78 and s76
42
Q

For what type of issue would an abuse of process application be used? How is it different to an application to exclude evidence?

A
  • Issue of unfairness/impropriety is so fundamental that for trial to continue would be an abuse of process of the court
  • Goes beyond application to exclude evidence; concerned with whether or not case should be allowed to continue

Cf application for dismissal - evidence not enough
This has to do with an abuse of process

43
Q

What are the two categories in which the court has power to stay proceedings for abuse of process? Will either consider other factors and will either be found lightly?

A
  1. Where accused can no longer receive a fair hearing (no balancing exercise);
  2. Where stay is necessary to protect the integrity of the criminal justice system (balancing exercise)

Stay of proceedings is a remedy of last resort

44
Q

For what 4 reasons may the defence apply to have proceedings stayed as an abuse of process of the court?

(Will be more)

A
  • D tricked/coerced into committing offence they otherwise would not have committed
  • Where D is prosecuted despite unequiovcal promise by prosecution that they won’t be
  • Where police have acted in such a way to undermine public confidence e.g. destroying evidence
  • Where prosecution has manipulated/misused process of court to deprive D protection by law
45
Q

Where does delay fit in with abuses of process of the court?

A

Delay can amount to an abuse of the court, esp where prosecution deliberately delays to gain a tacticla advantage

46
Q

Must the defence prove that the prosecution delayed deliberately to apply for abuse of court?

A

No! Inordinate or unconscionable delay due to inefficiency of prosecution + prejudice caused to defence may be sufficient for successful application

47
Q

What does it mean if the proceedings are stayed in the event of a successful application? What happens to D?

A

The prosecution cannot proceed - not same as ‘not guilty’ but no conviction and D’s record not tarnished

48
Q

What is the burden of proof for defence in its abuse of process application?

A

Abuse of process on a balance of probabilities

49
Q

What is the difference re grounds between abuse of process applications in the magistrates’ and Crown?

A
  • Magistrates’ = only on ground that D unable to have fair trial (not on integrity of justice system ground)
  • Crown = both grounds available
50
Q

Summary: difference between application for dismissal, submission of no case to answer, and abuse of process application?

A
  • Application for dismissal (only in Crown): pre-trial application to dismiss charge where evidence not sufficient to properly convict (Galbraith basically)
  • Submission of no case to answer: submission at half-time where 1) no evidence against D or 2) evidence taken at highest is such that jury not able to properly convict (re integrity of evidence; bar where open to jury’s interpretation)
  • Abuse of process application: unfairness so fundamental that continuing would be abuse of process of court - 1) accused can no longer receive fair hearing or 2) case must be stayed to protect integrity of CJS