Preliminary evidential matters.docx

*Preliminary evidential matters -- 1 Q* *What are facts in issue?* a. the facts which the prosecution bear the burden of proving or disproving (in order to establish the guilt of the accused) and b. the facts which, in exceptional cases, the accused bears the burden of proving (in order...

*Preliminary evidential matters -- 1 Q* *What are facts in issue?* a. the facts which the prosecution bear the burden of proving or disproving (in order to establish the guilt of the accused) and b. the facts which, in exceptional cases, the accused bears the burden of proving (in order to succeed in the defence) - The nature of the facts in issue in any given case is determinable by reference to the legal ingredients of the offence charged and any defence raised. *In a not guilty plea?* - '\[W\]henever there is a plea of not guilty, everything is in issue and the prosecution have to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent'. - If the required standard of proof is met, the fact is taken to have happened. If it is not met, it is taken not to have happened. There is no room for a finding that it might have happened. What about facts under CJA s10 (1)? - Any fact which is formally admitted under the CJA 1967, s. 10, ceases to be in issue --- it must be taken to have been proved and is not open to contradictory proof. - Under s. 10(1) of the Act, a formal admission may be made of 'any fact of which oral evidence may be given in any criminal proceedings', words which make it clear that the section cannot be used to admit what would otherwise fall to be excluded because, say, it is inadmissible hearsay. - A party who accepts another party's expert conclusions may admit them as fact under s10. *What about written admissions?* - 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. - In court, a formal admission may be made by counsel or a solicitor orally. - Whatever the manner of making a formal admission under s. 10, it should appear clearly on the shorthand note. - Jury needs to be clear on what has been admitted. - A prosecution can rely on all admissions made by defence from P's opening speech and not call in formal evidence. This should be rare as jury would be confused on what's fact law or both in an opening speech. - 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. - **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. - Formal admissions made with the benefit of advice are an important and cogent part of the evidence in a trial. If it is sought to resile from them, leave to withdraw them is unlikely to be given under s. 10(4) without cogent evidence from the accused and advisers that the admissions were made by reason of mistake or misunderstanding. *What about the relevance and admissibility?* - The cardinal rule of the law of evidence is that, **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. - 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. - As to the latter, inasmuch as an offence of strict liability involves no proof of ***mens rea***, **evidence of motive, intention or knowledge is inadmissible**, being irrelevant to what the Crown has to prove and merely prejudicial to the accused. - There is scope for a finding that a **relevant fact may have happened**, in which case it may go some way towards making a fact in issue more probable or less probable. (binary system that applies to proof of fact in issue does not apply to relevant facts). *What is the meaning of relevance?* - The word signifies that 'any two facts to which it is applied are 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 probable the past, present or future existence or non-existence of the other'. D1's defence was that he had acted under duress as a result of threats by his co-accused D2. Evidence of the fact that D2 had subsequently attacked D1 with a knife was relevant to the defence because it made it more likely that D1, at the time of the offence, had genuinely feared for his safety. - It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e., logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable. - A matter of degree to be determined, for the most part, by common sense and experience. In sexual cases, the relevance of evidence relating to the complainant's social media accounts, such as the content of Facebook messages to friends, whether they had been deleted, and if so, when and why, will depend on the precise circumstances of the case. Such evidence is most likely to be relevant in cases where the complainant and the accused were in a relationship or knew each other. - In cases where there was no contact between them before or after the alleged crime, the fact that messages had been deleted is unlikely to be relevant, in the absence of any basis for suggesting that they contained material of assistance to the defence. *What is evidence of good character?* Evidence of the good character of a prosecution witness is generally inadmissible to bolster the witness's credibility, because it amounts to 'oath-helping', but may be admissible if relevant to an issue in the case, for example. - In a case of rape, the defence being consent, evidence of the complainant's disposition to resist any form of pre-marital sexual intimacy (Amado-Taylor \[2001\] EWCA Crim 1898 ); in a case of murder, the defence being self-defence, evidence of the deceased's non-violent disposition (RG \[2002\] EWCA Crim 1056); and, in a case of inflicting grievous bodily harm, the defence being self-defence accompanied by evidence that the complainant had started the violence making racially abusive comments, evidence to show that the complainant was not a racist. a. 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. b. However, evidence is admissible if it is relevant to an issue in the trial. c. The category of issues to which evidence of disposition may be relevant is not closed. d. If the evidence is admitted because 'issue-relevant', 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. It is submitted that 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, of the kind described in Mader, as to its limitations and effect. *What is circumstantial 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. - 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. E.g -- 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. - Circumstantial evidence 'works by cumulatively, in geometrical progression, eliminating other possibilities'. - However, 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. For this reason, it has been said that: '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'. - Nonetheless, there is no requirement, in cases in which the prosecution's case is based on circumstantial evidence, that the judge direct the jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion. In a case involving any circumstantial evidence relied on by the prosecution, the judge should summarise any evidence and/or arguments relied on by the defence to rebut the evidence and/or the conclusions which the prosecution seek to draw from it and direct the jury: - to examine each strand of it and decide which if any they accept and which if any they do not and decide what fair and reasonable conclusions can be drawn from any evidence that they accept; - not to speculate or guess or make theories about matters which in their view are not proved by any evidence; and - to decide, having weighed up all the evidence, whether the prosecution have made them sure that D is guilty. However, there is no requirement to use these exact words. *What is real evidence?* - Real evidence is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact. - 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. *What are views on real evidence?* - 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 an inspection of the locus in quo (the place in which). - A view should not take place after the summing-up (distinguished in a case where the inspection was at the express request of the defence). - A **view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer**. In the case of magistrates, as a general rule a visit to the *locus in quo should take place before the conclusion of the evidence* and 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. - A judge must produce ground rules for a view, after discussion with the advocates. The ground rules should contain details of what the jury should be shown, and in what order, and who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions. *What are the general principles of law and fact in a trial on indictment?* - As a general rule, questions of law (including practice) are for the judge, and questions of fact for the jury. - In trials on indictment without a jury, the judge decides all questions of both law and fact and, if the accused is convicted, must give a judgment which states the reasons for the conviction. - Lay magistrates, when sitting with a judge in the Crown Court, are also judges of the court (Senior Courts Act 1981, ss. 8 and 73); they should participate in all questions to be determined by the court, including the factual aspect of any question relating to the admissibility of evidence, "but must accept the ruling of the judge on any question of law". In jury trials, questions of law for the judge include those relating to: a. where the court has determined that an accused is unfit to plead, whether the accused did the act or made the omission charged as the offence --- see D12.10; b. challenges to jurors --- see D13.22 et seq.; c. the discharge of a juror or the whole jury --- see D13.50 et seq.; d. the competence of persons to give sworn or unsworn evidence --- see F4.2 et seq.; e. the admissibility of evidence; f. the withdrawal of an issue from the jury; g. submissions of no case to answer --- see D16.53 et seq.; h. the numerous issues on which the jury should be directed in the summing-up, such as the substantive law governing the charge, the burden and standard of proof, the use which the jury is entitled to make of the evidence adduced, the operation of any presumptions, the nature of, and any requirement for, corroboration, etc. --- see further D18.21 et seq. and F5; and i. matters ancillary to the trial itself, such as questions of bail, costs and leave to appeal. Questions of fact for the jury include: a. whether the accused "stands mute of malice or by visitation of God"; b. the "credibility of the witnesses called and the weight of the evidence adduced"; and c. whether, "applying the burden and standard of proof applicable to the case, they are satisfied as to the existence or non-existence of the facts in issue". In jury trials, questions of fact which fall to be determined by the judge are whether the accused is fit to plead (see D12.9); the existence or non-existence of preliminary facts, i.e. facts which must be proved or disproved as a condition precedent to the admissibility of certain types of evidence; the sufficiency of evidence (in deciding whether an issue should be withdrawn from the jury); and the evaluation of evidence adduced by the parties (for the purpose of commenting on its weight in summing up to the jury). *What about summary trials?* - In the case of proceedings presided over by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice's legal adviser. - In theory, district judges (magistrates' courts) are in the same position as lay justices. In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare. *When can judges exclude evidence?* PACE s78 -- - The most important discretionary power to exclude otherwise admissible prosecution evidence is contained in the PACE 1984, s. 78(1). a. In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. b. Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. Applies to evidence on which the ***prosecution propose to rely*** and therefore *applications to exclude evidence under the section should be made before the evidence is adduced.* - If during prosecution opening speech, then application before speech. The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even when the circumstances are similar. This is not an apt field for hard case law and well-founded distinctions between cases. - Citations from 'authority', in reality no more than observations of a fact-specific decision, are unnecessary. Strictly speaking, s. 78(1) does not involve an exercise of discretion because, if a court decides that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it. The Court of Appeal has been loath to interfere with the decisions of trial judges under s. 78. per curiam, that exercise of the judgment under s. 78(1), although sometimes described as a discretion, is more properly described as an evaluative decision in ensuring that there is a fair trial in accordance with the ECHR, Article 6. The Court of Appeal will intervene only if the judge has not exercised the discretion under s. 78 at all or has done so but in a Wednesbury unreasonable manner and that where the Court of Appeal does intervene, it will exercise its own discretion. It is submitted that the true test for the Court of Appeal should be whether the admission of the evidence in question renders the conviction unsafe, since that is now the only ground on which it may allow an appeal against conviction. *What is the general application of s78?* - Section 78(1) may be used to attempt to exclude any evidence on which the prosecution propose to rely. *Is there a wider scope of exclusion than at common law?* - The mere fact that evidence of D's conduct might have a prejudicial effect is not a reason to exclude it under the PACE 1984, s. 78. However, evidence open to exclusion at common law, i.e. a. Any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value, and b. Admissions, confessions and other evidence obtained from the accused after the commission of the offence by improper or unfair means, and which might operate unfairly against the accused (Sang \[1980\] AC 402 : see F2.45), may be excluded either at common law or pursuant to the PACE 1984, s. 78. 'in any case where the evidence could properly be excluded at common law, it can certainly be excluded under s. 78'. E.g -- Co accused, one pleads guilty one goes to trial, The prejudicial effect of this evidence clearly outweighed its probative value, because A's admission of the offence charged might have led the jury to infer that B must have conspired with A, and therefore the common-law discretion to exclude could have been invoked. Instead, the Court of Appeal held that the evidence should have been excluded under s. 78. On the other hand, it was held that the fact that D has entered into an agreement pursuant to what is now the SA 2020, s. 74 (see E2.6), will not in itself call for exclusion of D's evidence under s. 78, even if it is of central importance; the dangers inherent in giving evidence against accomplices are met by giving the jury a proper warning. Concerning the provisions of Part VIII of the PACE 1984, s. 82(3) expressly preserves the discretion to exclude which the court possessed at common law prior to the coming into force of the Act, and therefore Parliament, in enacting s. 78, must be taken to have extended the pre-existing discretion. - Section 78(1), "insofar as it may be used to exclude evidence obtained by improper or unfair means, is not confined, as is the common-law power described in Sang to '*admissions, confessions and generally with regard to evidence obtained from the accused after the commission of the offence'*, but **extends to any evidence on which the prosecution propose to rely.** Nor, in relation to evidence obtained improperly or unfairly, is s. 78(1) necessarily confined, in the way that the common-law power apparently is, to cases in which those who obtained the evidence acted *mala fide*. Section 78, however, is capable of application to any evidence obtained illegally or by improper or unfair means and on which the prosecution seek to rely, whether obtained from the accused, his or her premises or from any other source. *What is the nature of the discretion at common law?* Although there is no common-law authority to suggest that a criminal court has any power to **admit** as a matter of discretion evidence which is inadmissible under an exclusionary rule of law, it is well established that a judge, as part of his or her inherent power and overriding duty in every case to ensure that the accused receives a fair trial, **always has a discretion to exclude** otherwise admissible prosecution evidence if, in the judge's opinion, its prejudicial effect on the minds of the jury outweighs its true probative value. - In all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible.