Admissibility: Criminal

Admissibility: Criminal

1. Relevance

   • Similar fact or collateral evidence. It relates to something other than the case. Howden rule and Moorov doctrine are the exceptions

2. The Best Evidence Rule

   • Must give primary not secondary if available.
     • But only if using secondary would cause prejudice, and even then sometimes they can still use it because of impracticality. Anderson v Laverlock.

3. The Hearsay Rule

   • A witnesses an assault and then tells B, B then gives this as evidence.
     • Only primary hearsay admissible.
   • Possible reasons for using hearsay: to establish that a statement was made or to establish the truth of the statement.
   • 3 main exceptions to inadmissibility to secondary hearsay: Res Gestae, Statements by accused, statutory exceptipns
     • Res Gestae Exception is for statement made at same or similar time as offence so that it forms part of the offence. R v Gibson = satement not connected.
     • Statements by accused. Confessions, self serving, mixed.
       • Confessions = admissible
       • Normally inadmissible, but ok if led by crown. McCutcherson v HMA
       • Mixed = whole statement admissible.
       • about to be amended so that all are admissible.
     • Statutory exceptions. s 259
       • May not be a fair trial

4. Unfairly/ Improperly Obtained evidence

   • guiding principle is fairness
   • Documentary evidence. Cannot be assumed there was a search MacKintosh v Scott.
     • If there has been a search then there must have been authority to do so or statutory authority
       • Statutory authority: need reasonable cause but need not be precise. Miller v Jamieson
   • Search Warrant.
     • Not needed when minimal invasion HMA v Baillie
       • Defects on warrant HMA v Cumming, power exceeded Burke v Wilson.
       • Sometimes urgancy applies
   • Unfair confessions
     • Brown v HMA
     • Questioning techniques Chalmers v HMA. 3 stages
       • Suspects will must actually break
       • Leading/repetetive questions count

5. Caution

   • Stage 2 Tonge v HMA
   • Not always required
   • HMA v Gilgannon. Mental State but not always sufficient
     • Mental stress may be enough

6. Confessions: physical state and age

   • McLory v McInnes. Raised from sleep.
   • Age: Codona v HMA.

7. Confessions and entrapment.

   • HMA v Campbell

8. Threats and inducement. Black v Annan

9. Access to lawyer. Cadder v HMA