Preliminary evidential matters

Question 1

What does facts in issue comprise of and how are they determined?

Answer 1

Comprise:

(a) Facts which P bear burden of proving/disproving to establish G
NB: = whole of case if plea of NG

(b) Facts which (in exceptional cases) A bears burden of proving
E.g. in order to succeed in a defence

Determined by reference to:
(1) legal ingredients of offence charged (e.g. A’s identity, nature of the act AR+ MR),

and

(2) any defence raised

• Facts in issue are either proved or they are not = binary system

Question 2

What are formal admission of facts? s.10 CJA 1967

Answer 2

S.10 CJA 1967 - power to agree on facts = Are admissions taken as ‘proof’ of a fact in issue and not open to contradictory proof

May be made of ‘any fact of which oral evidence may be given in any criminal proceedings’

Question 3

What does s.10 CJA 1967 NOT include as admissible facts?

Answer 3

• Inadmissible hearsay
• cover (expert) opinion s.10(1)
  NB: s 10(1) admits party who accepts another party’s expert’s conclusions may admit them as fact under s 10

Question 4

Are formal admissions made by counsel orally that appear on shorthand note admissible facts?

Answer 4

Yes but should appear on shorthand note

Only where:
- A party relies on a fact admitted by another party, or parties jointly admit a fact

• must be a written record the admission (unless court directs otherwise)

Question 5

Can there be leave to withdraw formal admissions?

Answer 5

Must be given with evidence from A + advisors of mistake/misunderstanding

Question 6

Written admission should ordinarily be put before jury, provided they? (2)

Answer 6

(1) are relevant to an issue before jury,

and

(2) do not contain material which shouldn’t go before jury

+ important that jury is clear on what has been formally admitted

Question 7

What’s the general rule for a fact to be admissible (and relevant)? Sufficiently relevant test

Answer 7

General rule = all evidence “sufficiently relevant” to the facts in issue = admissible

Relevant = capable of increasing/decreasing likelihood that a fact in issue happened

Question 8

What are the exceptions to admissibility of otherwise relevant evidence? Reasonable jury test(etc)

Answer 8

Test: No reasonable jury, properly directed as to its defects, could place any weight on it

• If an offence of strict liability = evidence of motive/intention/knowledge inadmissible (b/c irrelevant)

NB not same binary system in re: relevant facts (cf. facts in issue): relevant facts may have happened (& therefore make a fact in issue more/less probable)

Question 9

Is evidence of P W good character admissible? (oath-helping)

Answer 9

Generally inadmissible as it may amount to ‘oath helping’

e.g. to show a P W is ‘a generally truthful person who should be believed’

Question 10

Evidence of Good character may be admissible if relevant to a issue in trial - what are these? (3)

Answer 10

Issues showing disposition:

1) Rape w/ defence of consent → evidence of P W’s disposition to resist any form of pre-marital sexual intimacy is admissible

2) Murder w/ defence of self-defence → evidence of deceased’s non-violent disposition

3) GBH w/ defence of self-defence (after racially abusive comments) → evidence to show P W was not racist

• Category of issues (as evidence of disposition) is open
• judge should ensure that its effect is not to water down burden of proof on P & any good character direction given for A

Question 11

What’s direct evidence?

Answer 11

= evidence of facts in issue

W testimony → facts of which W claims to have personal knowledge (e.g., ‘I saw A strike V’)

Question 12

What’s circumstantial evidence?

Answer 12

Evidence of relevant facts (from which existence or non-existence of facts in issue may be inferred = court can draw conclusions)

• Works cumulatively by, taken together, eliminating other possibilities

Question 13

More weight is given to consistent circumstantial evidence than inconsistent direct testimonial evidence from W lacking credibility - is this the right approach?

Answer 13

Yes

• must always be narrowly examined b/c may be fabricated

Question 14

Where P’s case is based on circumstantial evidence, is the judge required to acquit?

Answer 14

No, judge needs not to acquit

• Unless sure that the facts proven are inconsistent with any other reasonable conclusion

Question 15

Where P relies on inconsistent Circumstantial Evidence - what are the jury directions here?

Answer 15

1st judge summaries D’s evidence/arguments and direct (need not be these exact words) jury to:

1) assess which, if any, stand of evidence is accepted/ rejected + drawn fair and reasonable conclusions from accepted CE

2) not to speculate or guess or make theories about matters which their view are not proved by evidence;

and

3) to decide, having weighed up all evidence, whether P have made them SURE that D is G.

Question 16

What are the 3 forms of evidence?

Answer 16

1) Evidence on oath (W testimony)
2) Documentary evidence
3) Real Evidence

Question 17

What’s real evidence?

Answer 17

Usually some material object, the existence, condition or value is in issue or relevant to an issues, produced in court for inspection by the tribunal of fact

Question 18

Within real evidence, counsel can adduce tangible objects - what are these and what’s the effect?

Answer 18

= Material object produced in court for inspection by tribunal of fact, whose existence/condition/value is in issue or relevant to an issue

• e.g. CCTV evidence
• It should be linked with a accompanying testimony (connecting it with facts in issue)
• When needed jury must have assistance of expert testimony before reaching conclusions (e.g. comparing handwriting)
• Non-production of the tangible object may give rise to adverse inference to party failing to produce it + affect weight of the oral evidence

Question 19

Within real evidence, counsel can adduce Views - what are these and what’s the effect?

Answer 19

= inspection of object / scene of crime (Locus in quo) out of court

Must take place before:
CC – summing up
Mags – conclusion of evidence

Should be attended by:
- Judge
- Tribunal of fact
- Shorthand writer
- Parties & counsel
- Accused (may be able to point out important matters which the lawyers would miss)

Judge produces ground rules for the view after discussing w/ counsel:
1) what jury should be shown
2) in what order
3) who will be permitted to speak & what will be said
4) provision for jury to ask Qs

Question 20

What are the Qs of law for judge in jury trials on indictment?

Answer 20

(a) whether A committed the offence (where court decides A is unfit to plead)
(b) challenges to jurors
(c) discharge of a juror / whole jury
(d) competence of Ws to give sworn/unsworn evidence
(e) admissibility of evidence
(f) withdrawal of an issue from jury
(g) submissions of no case to answer
(h) directions to jury during summing-up
(i) matters ancillary to the trial itself (e.g. Qs of bail, costs, leave to appeal)

Question 21

What are the Qs of fact for jury during trial on indictment?

Answer 21

(a) whether A stands mute of malice or by visitation of God

(b) credibility of Ws & weight of evidence adduced

(c) whether satisfied as to existence / non-existence of facts in issue

Question 22

What are the Qs of fact for judge in jury trials on indictment?

Answer 22

(a) whether A is fit to plead

(b) existence/non-existence of preliminary facts (= must be proved/disproved as a condition precedent to admissibility of certain types of evidence)

(c) sufficiency of evidence (in deciding to withdraw an issue from jury)

(d) evaluation of evidence adduced by parties (to comment on weight in summing up)

Question 23

In trials on indictment, if a judge is sitting w/o jury, what does she decides on?

Answer 23

Decides all Qs of fact & law

if D convicted = must give judgment stating reasons for the conviction

Question 24

In trials on indictment, if a lay magistrate is sitting w/ a judge jury, what does she decides on?

Answer 24

• Lay magistrate should participate all Qs to be determined by court, including factual aspects of Qs on admissibility
• Must accept ruling of judge on any Q of law

Question 25

What are the Qs of fact and law for a District Judge in summary trial?

Answer 25

- decide all Qs of both law & fact - usually more experienced than legal adviser so rarely asks for advice

Question 26

What are the Qs of fact and law for a Lay Justice in summary trial?

Answer 26

- Justice decided all Qs of both Law & Fact - On Qs of law (incl. evidence) should seek and accept advice of legal adviser

Question 27

What's the effect of the discretionary exclusion of evidence under PACE s.78?

Answer 27

- Applies to all P evidence - Application to exclude should be made before the evidence is adduced OR before P opening speech if ref made to it there The effect? - Court may refuse evidence which P proposes to rely if, having regards to all circumstances (incl how evi was obtained), the admission of evi would have a such an adverse effect on fairness of the proceedings that court cough not to admit it

Question 28

What's the scope for exclusion under s.78 PACE (discretionary exclusion of evidence)?

Answer 28

- It's wider than common law - applies to all evi obtained unlawfully, improperly or unfairly (whether from A, his premises, or other source) - Evi open for exclusion at CL can also be excluded by s.78 (should rely on s.78)

Question 29

Court may exclude P (only) evidence under common law. What are the requirements for this?

Answer 29

1) if likely prejudicial effect on minds of jury outweighs its true probative value e.g. A pleads G & B pleads NG leads jury to infer that B conspired w/ A 2) where admissions/ confessions/ or other evi obtained AFTER commission of offence are obtained by improper/ unfair means & which might operate unfairly against A

Question 30

What's the sole ground on which CoA may allow appeal against conviction?

Answer 30

Weather the admission of the evidence in question renders the conviction unsafe

Question 31

Will the CoA interfere where the judge has failed to exercise its discretion under s.70 in a Wednesbury unreasonable manner?

Answer 31

Yes CoA will exercise its own discretion as to admission of evidence

Question 32

May admission (fully compliant w/ s.10) be withdrawn with leave from the court or open to contradictory proof?

Answer 32

- Not open to contradictory proof but can - Can be withdrawn with the leave of the court. Leave to withdraw is given only rarely but it is permitted by s.10. Any fact formally admitted under s.10 is taken to be admitted and is not open to contradictory proof.

Question 33

You represent Mohamed, who is charged with murder. He is relying on the defence of diminished responsibility. Who bears in the burden of proof, and to what standard, in relation to the defence of diminished responsibility? Select one: [A]  The evidential burden is on the defence, and the legal burden is also on the defence on the balance of probabilities. [B]  The evidential burden is on the defence and the legal burden is on the prosecution beyond reasonable doubt. [C]  The evidential burden is on the prosecution and the legal burden is on the prosecution beyond reasonable doubt. [D]  The evidential burden is on the prosecution and the legal burden is on the prosecution on the balance of probabilities.

Answer 33

[A]   The evidential burden is on the defence, and the legal burden is also on the defence on the balance of probabilities.

Question 34

You prosecute Michael who is charged with murder. You are having a conference with your CPS instructing solicitor. Looking through the papers it appears likely that the issue of insanity may arise, and you discuss the evidence on this issue. What is the correct position with regard to the incidence and discharge of the evidential burden on the issue of insanity? Select one: [A]  The burden is on the defence and is discharged by the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish. [B]  The burden is on the defence and is discharged by the adduction of sufficient evidence as might leave the jury in reasonable doubt. [C]  The burden is on the prosecution and is discharged by the adduction of sufficient evidence as could be accepted by the jury as proof. [D]  The burden is on the prosecution and is discharged by the adduction of sufficient evidence as might satisfy the jury on the balance of probabilities.

Answer 34

The correct answer is: [A]   The burden is on the defence and is discharged by the adduction of such evidence as might satisfy the jury on the probability of that which the accused is called upon to establish. - How it is discharged reflects the fact that the legal burden as well as the evidential burden lies on the defence. BCP 2023: F3.5. Memorise the exact words

Question 35

You represent Andrew, who is on trial in the Crown Court for theft. The only evidence is the identification of Andrew by an eyewitness. The eyewitness accepted in their evidence that the sighting of the offender was fleeting, it was night-time and there was some, albeit limited street lighting and the offender was wearing a sports cap with a shadow onto his face. There is no supporting evidence for the prosecution to rely upon. In light of the case of Turnbull, what submission should you make in relation to the identification evidence? Select one: [A]  The judge should give the jury a Turnbull warning informing them that caution must be taken in cases where the only evidence is identification evidence. [B]  The judge should withdraw the case from the jury and direct an acquittal. [C]  The judge should withdraw the case from the jury and allow a retrial. [D]  The judge should give the jury a Turnbull warning, informing the jury that there is no question regarding the witness’ s honesty.

Answer 35

The correct answer is: [B]   The judge should withdraw the case from the jury and direct an acquittal. --------------------------------------------------------- [A]  A is wrong. A Turnbull warning is not sufficient in these circumstances. The case should not be left with the jury. [B]  B is correct. As there is no supporting evidence and the identification evidence is very poor, the judge should withdraw the case from the jury. [C]  C is wrong. The wording of Turnbull (..’and direct an acquittal’) is clear. It is a case of withdrawing the case not discharging the jury. [D]  D is wrong. A Turnbull warning is not sufficient in these circumstances and the warning is wrong anyway, the more appropriate phrase would be that ‘an honest witness can be a mistaken witness’ (or similar). SA 18 Identification Evidence BCP 2023: F19.9