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Flashcards in SA10 - Preliminary Evidential Matters Deck (45)
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1

What are facts in issue? How can we figure out what the facts in issue are? When does something stop being a fact in issue?

Any facts which must be proven or disproven (by the prosecution or, exceptionally, by the defence). Therefore, what the facts in issue are can be determined by looking at the relevant ‘legal ingredients’. Anything that is formally admitted ceases to be in issue: it is taken to be proved, and so is not open to contradictory proof.

2

Which statute/section governs formal admissions?

S.10 CJA 1967

3

Of which facts may formal admissions be made?

A formal admission may be made of any fact of which oral evidence may be given in proceedings, which therefore excludes what would otherwise fall to be excluded because it is, say, inadmissible hearsay.

4

Formal admissions of expert opinion

S.10 covers only facts and so cannot cover expert opinion, but a party who accepts another party’s expert conclusions may admit them as fact under s.10.

5

When may a formal admission be made orally?

In court by counsel or a solicitor.

6

Admissions and juries

Ordinarily, written admissions should be put before the jury, provided at least that they are relevant to an issue before the jury and do not contain any material which should not go before the jury. It is important that juries are clear as to what has been formally admitted.

7

Formal admissions and shorthand note.

Whatever the manner of making a formal admission, it should be such that what has been admitted should appear clearly on the shorthand note.

8

Scenario where counsel for the accused formally admit every fact alleged in the prosecution’s opening speech and the prosecution then rely solely on admissions.

Can have this scenario, but this procedure should be adopted with caution because of its capacity to confuse the jury (they might find it hard to distinguish between law, mixed fact and law, and comment when considering the opening speech.

9

Joint admission of facts or introduction in evidence of a fact admitted by another party

Where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact, then unless the court otherwise directs, a written record must be made of the admission.

10

Application of Section 10 to a written schedule

Section 10 will apply in the case of relevant facts in a written schedule which the parties agree to put before the jury; and will also apply to any such facts that were removed from the schedule, pending a judicial ruling on their admissibility, on their reinstatement following a judicial ruling in favour of admissibility.

11

Withdrawing a written admission

Leave to withdraw a written admission is unlikely to be given without cogent evidence from the accused and those advising him that the admissions were made by reason of mistake or misunderstanding.

12

Relevance and admissibility: cardinal rule of evidence

Cardinal rule of evidence: Subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded.

13

When may relevant evidence be excluded (exception to the cardinal rule)

Evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it.

14

Example of irrelevant evidence (strict liability)

In the case of a strict liability offence, evidence of motive, intention, or knowledge is inadmissible because it is irrelevant to what the Crown has to prove and merely prejudicial to the accused.

15

Definitions of 'relevance'

Relevant facts are those so related to each other that according to the common course of events one (either taken by itself or in connection with other facts) proves or renders possible the past, present, or future existence or non-existence of the other.

Another definition is ‘logical probativeness’; evidence which makes the matter that requires proof either more or less probable.

16

Example of the relevance of one fact to the other

Example of relevance: D’s defence was that he acted under duress as a result of threats by his co-accused (N). Evidence of the fact that N subsequently attacked D with a knife is relevant to the defence because it makes it more likely that D, at the time of the offence, had genuinely feared for his safety.

The question of relevance is typically a matter of degree to be determined by common sense and experience.

17

Evidence of good character of prosecution witnesses: general rule

Evidence of the good character of a prosecution witness is generally inadmissible to bolster his credibility, because it amounts to ‘oath helping’; generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.

18

When may evidence of the good character of a prosecution witness be admissible? Which precautions should be taken?

It may be admissible if relevant to an issue in the case.

Examples:
• In a rape case where the defence is consent, evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy
• In a murder case, the defence being self-defence, evidence of the deceased’s non-violent disposition
•In a case of inflicting GBH, the defence being self-defence accompanied by evidence that the complainant had stated the violence by making racially abusive comments, evidence to show the complainant was not a racist.

The category of issues to which evidence of disposition may be relevant is not closed.

When good character evidence is admitted as relevant to an issue in this case, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

19

When an accused contradicts a prosecution witness on a relevant issue, both are of good character, and evidence of the accused's good character is given

When an accused contradicts a prosecution witness on a relevant issue, both of them are of good character, evidence is given of the accused's good character and the jury are directed that it is relevant to the accused's credibility, then evidence of the good character of the prosecution witness should also be admissible and the jury should receive a direction that it is relevant to the witness's credibility accompanied by a rider as to its limitations and effect.

20

What is circumstantial evidence?

Is to be contrasted with direct evidence. Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred.

E.g. The accused’s fingerprints were found on the murder weapon (whereas direct evidence would be that the witness saw the accused murder the victim).

21

Comparison between direct and circumstantial evidence in terms of weight

It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence. For example, the tribunal of fact is likely to attach more weight to a variety of individual items of circumstantial evidence, all of which lead to the same conclusion, than to direct evidence to the contrary coming from witnesses lacking in credibility.

22

Circumstantial evidence as a rope

Circumstantial evidence 'works by cumulatively, in geometrical progression, eliminating other possibilities'; likened to a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

23

Caution that must be taken in relation to circumstantial evidence

Although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another, thus it is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

24

What is real evidence?

Real evidence is usually a tangible object, produced in court for inspection.

25

What should accompany real evidence?

Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony.

26

What is a view?

The term ‘view’ is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court, and the inspection of a locus in quo (scene of an event).

27

When should a view happen (CC)?

A view should not take place after the summing-up.

28

Who should attend a view (CC)?

It should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer.

29

When should a view happen (Mags)?

As a general rule a visit to the locus in quo should take place before the conclusion of the evidence

30

Who should attend a view (Mags)?

Should take place in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates.

The presence of the accused is important because he may be able to point out some important matter of which his legal adviser is ignorant or about which the magistrates are making a mistake.