Admitting and Excluding Evidence

Question 1

When do Turnbull Guidelines apply?

Answer 1

1) W identifies D
2) D disputes identification

Question 2

Options if disputed ID evidence

Answer 2

1. Request excluded under s78 PACE
   - significant and substantial breach of ID procedure rules
2. Challenge quality of sighting in cross examination at trial

Question 3

Factors for assessing quality of ID evidence

Answer 3

A: amount of time under observation
D: Distance
V: visibility
O: obstructions
K: Known to witness?
A: ANy reason to remember?
T: Time lapse between offence and ID procedure
E: Error or material discrepancy between original description and D

Question 4

Possible outcomes of ID evidence at trial

Answer 4

If good quality: Turnbull Direction
If poor quality + supported: Turnbull + highlight weaknesses + look for supporting evidence
If poor quality + unsupported: no case to answer

Question 5

Hearsay Evidence Admissibility

Answer 5

Inadmissible unless falls under recognised exception

Question 6

Definition of Hearsay

Answer 6

Statement
Made out of court
Repeated In court
To prove truth of a fact within the out of court statement

POlice notebook / witness statement body cam footage

Question 7

Grounds for admitting hearsay

Answer 7

1. Agree
2. Witness is unavailable
3. Business Document
4. Res Gestae
5. Public Doc
6. Interests of justice

Question 8

Unavailable witness gateway

Answer 8

1. SM could have given evidence if they attended trial (competent, compellable, not BCE, relevant)
2. SM is identifiabble
3. SM is unavailable for one of the following reasons:
   - Dead
   - Unfit (medical evidence)
   - Missing (and reasonable attempts made to locate)
   - Abroad and not practicable to secure attendance
   - Fear (themselves, another or property) + court permission (IoJ)

Question 9

Business document gateway

Answer 9

1. Produced in course of business
2. Person who recorded info had first hand knowledge
3. Each intermediary acted in course of business
   If Witness statement or police notebook
4. Witness unavialble (5 grounds); or
5. W cannot reasonably be expected to recollect matters given length of time

Question 10

Res Gestae gateway

Answer 10

SM was so emotionally overpowerd by an event the possibility of concoction can be disregarded

Question 11

Interests of justice test

Answer 11

Court is satisfied in interests of justice for hearsay to be admitted
- Reason to doubt reliability
- probative value
- alternative evidence
- could oral evidence be given
- amount of difficulty to challenge

Question 12

Court discretion to exclude hearsay

Answer 12

Even if gateway is satisfied court may exclude if:
s78 PACE: admission would have such an adverse effect on fairness
s126 CJA: case for excluding substantially outweighs case for admitting

Credible witness?
Importance of evidence to case
Sole or decisive evidence against D?
Untested - prejudice

Question 13

Procedure for admitting hearsay

Answer 13

If wish to rely on hearsay, need to give notice to court and OS. Set out why gateway exists.

If wish to oppose admission, set out reasons within 10 business days

Question 14

What is a confession?

Answer 14

Words or conduct by D made to anyone which is averse to D

Question 15

Admissibility of confession

Answer 15

Admissible as an exception to hearsay

Question 16

Excluding a confession

Answer 16

Maybe excluded under s78 PACE or s76 PACE
s78: MAY if such an adverse effect on fairness… (e.g. sig + substantial breach of PACE - ILA, interview procedures)
s76(a): MUST if confession obtained by oppression and P unable to prove beyond reasonable doubt that D is lying or oppression did not cause confession
s76(b): MUST if confession obtained by things said or done which render it unreliable and P unable to rpove beyond reasonable doubt that D is lying or things said / done did not cause confession

Question 17

Definition of Bad Character Evidence

Answer 17

Misconduct (aquittal, conviction, caution)
Reprehensible Behaviour (bullying, racism, gang, drinking, drugs, work miconduct, children in care)

Unrelated to the offence

Question 18

Admissibility - Bad Character

Answer 18

No admissible unless falls within a gateway

Question 19

Bad character gateways

Answer 19

1. Agreement
2. Blurts it out (D adduces)
3. Context (important explanatory evidence) - only if without it impossible or dififcult to understand evidence and value for understanding whole case is substantila
4. Done it before (relevant to an importnat matter in issue) - propensity to commit offence of type (description or category) or propensity to be unrtuthful
5. E did it (substantial probative value in relation to an important matter in issue between C and D)
6. False impression (false, does not withdraw, no further than to correct false)
7. Gets at witness (attack on another’s character)

Question 20

meaning of substantial probative value

Answer 20

evidence is cpaable of impacting the way the jury assesss evidence or case as whole (consider similaity, number, age of BCE)

Question 21

Court power to exclude BCE

Answer 21

s78 PACE: MAY if such adverse effect

if gateway d or g (relevant to an importnat matter in issue):
- MUST not admit if wouldl have such adverse effect:

consider:
- length of time (change in circs / ongoing pattern)
- number of convictions
- shoudl not be used to bolster weak case

Question 22

No case to answer test

Answer 22

MUST acquit if:
1. P failed to put forward evidence to prove elemnt of offence; or
2. P’s evidence is so manifestly unreliable no reasonable tribunal could safely convict

Question 23

Burden and standard of proof

Answer 23

P have evidential burden to raise sufficine tevidence to show D has a case to answer. If P fails, then D can make a submission of no case to answer.

D does not have a burden to prove anything unless they wish to raise defence. Must raise some fact to make it a live issue. Satisfied by entering witness box and giving details.

P must then prove each element of offence and disporve D’s defence beyodn reasonabl doubt.