Evidence Cases

Question 1

R v Wong kam ming 1980
Voir dire

Answer 1

Answers given in Voir dire should not be adduced to jury
Questions should be limited to the issue in Voir dire eg was confession voluntary

Question 2

R v Galbraith 1981
No case to answer

Answer 2

2 limbs
1= there is no evidence that a crime has been committed or
2= there is some evidence before the court but it is tenuous or inconsistent in nature

Question 3

R v Woolmington 1935

Answer 3

Golden thread always to be seen which is that it is the duty of the prosecution to prove the defendants guilt subject to statutory exception

Question 4

R v hunt 1987
Reverse burdens

Answer 4

Burden will be on the prosecution if putting the burden on d to satisfy exception would be to difficult to discharge

Question 5

R v lambert 2002
Reverse burden -Evidential burdens

Answer 5

If a reverse burden conflicts with article 6 then it will be downgraded to evidential burden

Question 6

R v kebilene 2000

Answer 6

Article 6 2 absolute but 3 questions

1- what do pros have to prove to transfer onus to d

2- does the burden imposed on d relate to something difficult or easy to prove

3- what is the nature of the threat faced by society which the provision is designed to combat

Question 7

What does Competence section 53(1) YJCEA say and how will judge decide

Answer 7

All persons competent unless
A) not able to understand questions put
B) not able to give answers that are understood

Could be a Voir dire

Co accused is competent for prosecution if no longer part of proceedings

Question 8

Can judge comment if a particular witness is not called ?

Answer 8

Yes but exercise care

Question 9

Privilege against self incrimination
Is it rooted
Must it be reasserted

Answer 9

R v s (f) 2009- privilege is deeply rooted in common law

Allhusen v labouchere 1878- must reassert privilege every time asked a question that may incriminate him

R v kinglake 1870 - Wrongly obliged to incriminate himself is not grounds for quashing

Question 10

Privilege against self incrimination and pre existing documents

Answer 10

Saunders or kearns -Right to silence does not apply to material existing independently

Question 11

Public immunity
R v h 2003 7 stages

Answer 11

If material did not weaken the prosecution case or strengthen the ln there would be no requirement to disclose it

Overriding principle that derogation from the principle of full disclosure had always to be the minimum necessary to protect the public interest in question and must never imperil the overall fairness

1) consider the material

2) if does not weaken the pros case or strengthen d case then no disclosure

3) if serious prejudice to public interest then no disclosure

4) make sure minimum necessary to protect public interest

Question 12

What is a confession

Answer 12

Section 82 - any statement wholly or party adverse to person who made it in words or otherwise

Question 13

R v sharp 1988

Answer 13

Mixed statement go in as one confession

Question 14

Can silence amount to a confession

Answer 14

Mitchell 1982- if on equal terms then can

Parkes 1977 - must reasonably warrant a response

Question 15

Not contradict a lie confession

Answer 15

Stevie 2005- yes will be held against them

Question 16

Restrictions on admissibility of confession

Answer 16

76(2)
A) oppression not allowed
B) not allowed if consequence of anything said or done that make it unreliable

Pros must prove beyond reasonable doubt that not made through these ways

Question 17

Will inference be drawn under s34 if it is because of legal advice ?

Answer 17

R v condron - yes

Question 18

Is Inference from silence allowed if interview is in breach of codes ?

Answer 18

R v gayle - no

Question 19

R v Bresa 2005

Answer 19

Explains direction given for jury to draw inference from d silence

Question 20

Section 36 and section 37 of criminal justice and public order act 1984

Answer 20

36- Draw inferences from d silence about presence of objects or substances

37- silence about being in particular place

Question 21

What does oppression mean for purposes of s76(2) (a)

Also what does r v Paris say

Answer 21

R v fulling 1987- ordinary meaning eg exercise of authority or power in a harsh or wrongful manner - injust or cruel treatment

Paris - actions can be seen as more oppressive depending on person

Question 22

What sort of things would make a Confession unreliable

Answer 22

Denied access to a solicitor s58 pace
No note of if Interview ie breaches of codes

Question 23

R v Barry 1992- whether confession is unreliable 3 steps

Answer 23

1) identify the thing said or done

2) was it likely to render unreliable

3) have pros proved beyond reasonable doubt

Question 24

Can you still use 78 to exclude confession and what things done might facilitate use of 78

Answer 24

R v mason 1988 - police lie and say they have evidence Whne they do not

R v hunt 1992- questioning someone Whne there was insufficient grounds to arrest

R v sparks 1991- failure to caution is usually significant and substantial breach of codes

Question 25

What is hearsay ?

Answer 25

Section 15- an out of court statement eg fact or opinion tendered for the truth of its contents

Question 26

What is the purpose rule and a case

Answer 26

Using the statement for any other reason other than truth R v gilfoyle - told her friends she had been asked to write a suicide note - used to show she was worried

Question 27

Is hearsay limited to what a person says

Answer 27

Would only apply to machine if human input

Question 28

Are implied assertions hearsay

Answer 28

No

Question 29

R v twist hearsay steps

Answer 29

1- Identify relevant fact 2- ask whether there is a statement 3- ask whether statement made for truth of it

Question 30

What is section 118 of cja 2003

Answer 30

Retains common law hearsay exceptions

Question 31

The test for res gestate = r v Andrews 1987 checklist

Answer 31

What was the nature of event and was what was said an instinctive reaction? How close in time were the words to the event ? Any special features suggesting a dishonest account ? Any special features suggesting a mistake ?

Question 32

Anonymous hearsay case

Answer 32

Nico brown 2019

Question 33

Does the person need to be identified for a s 116 cja 2003

Answer 33

Yes

Question 34

R v shahid 2013 12 step to follow before allowing hearsay in under fear s 116

Question 35

Section 114 cja 2003 interests of justice Key case

Answer 35

Maher v dpp = car dented in car park at supermarket by careless driver, witness wrote down reg and stuck on window. Measures should have common sense and realism so used 114

Question 36

Should 114 be applied to bypass 116

Answer 36

R v o hare - no

Question 37

When considering section 78 to exclude hearsay evidence the courts have said

Answer 37

Have regard to factors in 114 (2)

Question 38

What is a turnbull warning

Answer 38

When case against accused depends on id evidence wholly or substantially which accused alleges to be a mistake

Question 39

What is a Lucas direction

Answer 39

It is a direction if the defendant has lied 1) it must be deliberate 2) must relate to a material issue 3)the motive for the lie must be a realisation of guilt and fear of the truth 4) must be shown to be a lie by independent evidence or admission by accused

Question 40

What is a makunjuola warning

Answer 40

Warning given when witness appears to be unreliable Different degree of strength of warning can be given

Question 41

What is the turner test

Answer 41

An experts opinion is admissible if it is likely to be outside the experience and knowledge of a jury

Question 42

Sheldrake

Question 43

R v dlugosz 2013- what does it say about expert evidence

Answer 43

The court must be satisfied that there is a sufficiently reliable scientific basis for the evidence to be admitted

Question 44

What does Crown against loosely say about entrapment

Answer 44

Not entrapment if police did no more than what anyone else would have done Entrapment is state created crime

Question 45

What does crown against warren say about abuse of process

Answer 45

In abduction or entrapment cases the court will generally conclude that proceedings should be stayed

Question 46

What does crown against Walsh say

Answer 46

Breaches of codes must be significant and substantial

Question 47

Takeaways from crown against Hanson Including the tests

Answer 47

Tests Does history of convictions establish a propensity Does propensity make it more likely that d committed the crime Wills proceedings be unfair if admitted Equally- a single conviction can evidence propensity if strikingly similar

Question 48

What does Crown against Jarvis 2008 say about propensity to be u truthful

Answer 48

History of serial lying will plainly be relevant and ought to be admitted

Question 49

What does crown against belogun 2008 say

Answer 49

Confirms that where the defence is duress , evidence that shows u truthfulness will plainly be relevant

Question 50

What does crown agaisnt j 2013 say

Answer 50

Investigated offence will be evidence of bad character if used in conjunction with other convictions

Question 51

What does crown agaisnt Mitchell 2016 say

Answer 51

If crown is relying on several instances that show propensity then do not need to prove BRD

Question 52

What does crown against tanner 2006 say

Answer 52

If attack made then all bc evidence goes in

Question 53

What does crown against Abdullah 2019 say

Answer 53

Once bad character in it can be used to support any inference

Question 54

What does crown agaisnt vye say about good character

Answer 54

2 limbs If d gives pre trial statements he gets both limbs

Question 55

What does Crown against hunter say about good character

Answer 55

Can get a modified good character direction up to judge discretion if old convictions and stuff

Question 56

What does crown against spyby say

Answer 56

Automatically programmed computers are not hearsay

Question 57

What does crown against sang say

Answer 57

Essentially evidence will still be admissible even if obtained improperly

Question 58

What does Toby v Nichols say in relation to res gestate

Answer 58

20 mins after event not sufficient

Question 59

What does crown against chawkley say about improperly obtained evidence

Answer 59

Essentially if the evidence is reliable then it will not be excluded

Question 60

Structure of PQ

Answer 60

1- intro - include charge,section , act Who the legal burden and evidential burdens are on Life facts 2- set out list of evidence in order it would appear at trial Use witness testimony as headings Set out defence will try to weaken and set out evidence they will use 3- when dealing with each piece of evidence - what type of evidence - relevance - inferences - issue eg is it hearsay

Question 61

What did the CBA highlight as problems with section 28 after enquiry by justice committee

Answer 61

1) it is being used to widely without proper consideration, consultation with witness or prosecution counsel— just being used for all vulnerable witnesses but live links should be sufficient for some. Only in rare cases should live evidence not be given. 2) section 28 can be requested at police stage Whne ABE Intervirw is done. Problems here as no prosecution counsel done and police not giving option 3) section 28 procedure was initially designed for other jurisdictions and has not been properly adapted to our jurisdiction. Further the technology being used in our jurisdiction is lacking eg cannot pause recording for a legal argument , no automatic transcript provision, typing drowned out victims , vodaphone technology needs phasing out. 4) drop in conviction rates because juries acquit more often Whne d word against complainant especially Whne evidence not given live and ABE is also poor 5) does not actually reduce delay - rather extends it because evidence already in the can.. equally delay in disclosure means section 28 hearing not fully equipped with all evidence 6) listing issues and lack of continuity -

Question 62

What does Samantha faircluth research say about section 28

Answer 62

Gathered the views of a small sample of volunteering barristers 1) good but in limited cases such as cases involving young children 2) being used to get past half time rather than achieve best evidence because trials are so far away and witness wants to get on with life 3) no choice for witnesses and judges putting pressure along with the cps - box ticking suggested 4) listing delays - judges not realeasing advocates and advocates now not wanting section 28 work 5) reduced conviction rate because using 28 is a detachment from jury rather than engagement

Question 63

Written submissions of Cheryl Thomas to justice committee and statistics

Answer 63

Based on a dataset of all charges against all defendants in all crown court cases between 2016 and 2023 This allows comparison between jury conviction rates of specific offences including Whne s 28 was used and Whne it wasn’t used Conviction rates for Whne section 28 is used is nearly 10% lower than Whne it is not used Conviction rate falls by 30% in over 16 rape cases Whne s28 is used Conviction rate still lower When not a sexual offence .. Abh cases also 10-% lower Reasons for this could be : Lack of personal interaction Poor quality of pre recorded evidence Poor playback technology Overall - no reliable evidence as to what causes the reduced conviction rates Police should advise witnesses that it does that Disagrees with law commission that RASSO cases should get automatic entitlement

Question 64

What does the times article suggest Recorded rape case evidence is resulting in acquittals increase

Answer 64

RASSO cases involve 1 parties word agaisnt another so juries acquit more often Barristers say scheme rolled out before any empirical data given Concern coincides with criminals banking on delay causing case to be dropped - 85% plead guilty at first court appearance 10 years ago Now only 35%

Question 65

What does the Ellison and munro article : special measures in rape trials : exploring the impact of screens, live links and video recorded evidence on mock juror deliberation suggest

Answer 65

4 different mini trials scripted and done in front of mock juries The trials with no special measures did get more convictions but said verdict outcomes not sufficient indicator This is because jurors from trials without special measures were more accepting that RASSO victims did not always resist No evidence to suggest that mode of delivery of evidence makes a difference Also no difference between date in relation to whether jurors thought there was a difference as to whether victim was distressed and credible depending on mode of delivery

Question 66

Exceptions to rule against narrative

Answer 66

Contained in section 120

Question 67

What does crown against sparks 1991 say

Answer 67

R v sparks 1991- failure to caution is usually significant and substantial breach of codes

Question 68

What are the different types of evidence

Answer 68

Testimony Real evidence Hearsay evidence Documentary evidence Confession evidence Circumstantial

Question 69

What is ag reference 2002 authority for

Answer 69

Jury can compare cctv evidence to defendants in issue of Id

Question 70

R v Ford

Answer 70

Anonymous hearsay not go in

Question 71

Lundy v the queen

Answer 71

New Science Must be credible Must be fresh evidence

Question 72

R v Forbes

Answer 72

3.12 is mandatory but may not be excluded if not followed Id procedures

Question 73

R v Atkins

Answer 73

Can give view even if no data base