Evidence

Evidence

1. Inferences

   • s34 - 37 of Criminal Justice and Public Order Act 1994
     • s34 - silence when questioned under caution
       • if fail to mention something later relied on as defence - MAY draw inferences
         • if could reasonably have been expected to mention it at the time
     • s35 - Silence when questioned at trial
       • failing to give evidence at trial
         • The D has not given evidence, that is his right - you may draw an inference but cannot prove guilt by inference alone (R v Cowan)
       • failing to answer a question
     • s36 - refusal to account for objects subtances or marks (special caution required)
       • PC reasonably believes commission of offence, informs the D that he so believes, and requests D to account - failure to account = inference as appears proper to jury
     • s37 - refusal to account for presence at the scene (special caution required)
   • s5 Criminal Procedure and Investigations Act 1996 - Defence statement must be served
     • Crown Court - Mandatory - 28 days
       • s11 Criminal procedures and Investigation act - adverse inference
         • fail to serve
         • serves late
         • inconsistent defences
         • puts a defence at trial not stated in statement
     • Mags - voluntary - 14 days
   • Lies - generally admissible
     • R v Lucas
       • said deliberately
       • in realisation of guilt and fear of the truth
       • must be untrue
       • concerned with a material issue
       • Direction only needed where the lies are directly relevant to charged offence - eg alibi
   • Refusal to give an intimate sample s 62(1) PACE
     • inference allowed

2. Character Evidence

   • Bad Character
     • Defendant s101(1) CJA 2003
       • s101(1)(a) by agreement
       • s101(1)(b) Defendant deliberately adduces it
       • s101(1)(c) important explanatory evidence
         • without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case and
         • its value for understanding the whole case is substantial
         • exclusion
           • PACE s78
           • R v Sang
       • s101(1)(d)important issue in dispute between the P and D (prosecution only)
         • s 103(1) propensity to offend
           • previous convictions
             • same description or same category
               • is indictment worded the same?
               • Theft category and SO (persons under 16 category
             • other previous convitions
           • ORB
             • another count of indictment never been prosecuted prosecuted but acquitted not amountign to teh commission of an offence
           • R v Hanson
             • does the history establish propensity?
             • does the propensity make it more likely that the D committed the offence charged?
             • Is it unjust and would the proceedings be unfair if the evidence was admitted?
               • length of time or any other reason
             • HANSON DIRECTION
         • propensity to be untruthful
           • only really where telling lies is a feature of the crime - R v Campbell
         • relevance?
           • identity
           • Ar or MR
           • Defences
         • Exclusion
           • s101(3) CJA - must not be admitted if would have such an adverse effect on the proceedings that the court ought not to admit it
           • s103(3)
           • R v Sang
       • s101(1)(e) - substantial probative value in relation to an important matter in issue between d and co-D
         • no power to exclude
       • s101(1)(f) to correct a false impression given by the defendant
         • PACE s78 1984 and SANG
       • s101(1)(g) the D has attacked another person's character
         • s101(3) SANG and s78 PACE
     • Witness
       • s100 CJA 2003
         • only admissible if a) - important explanatory evidence
         • b) substantial probative value in relation to a matter which is a metter in issue in the proceedings and of subtantial importance in the context as a whole or c) all parties agree
     • evidence of, or of a disposition towards misconduct on his part
       • oether than that to do with the facts of the case or in connection with the investigation thereof
         • s98(a) and (b) CJA make this admissible
       • offence or other reprehensible behaviour s112 CJA 2003
   • Good Character
     • Vye direction
     • relevance to innocence - is it likely that the D did not commit the offence?
     • relevance to credibility - is the D's story likely to be believed?

3. Hearsay

   • S115 a statement made out of court for the purpose of proving the matter stated
   • S114 -4 grounds of admissibility
     • Statutory provision
       • S116 maker unavailable
         • Must be admissible if the witness attended
         • The witness is IDed
         • Cannot attend for 1 of 5 reasons
           • Dead
           • Unfit mental or physically
           • Outside the UK
           • Cannot be found
           • Fear
       • S117 business or personal document
         • Created in course of trade
         • Suppliers must have had personal knowledge
         • Each person receiving info must have done so in course of business
       • S118
         • Public info
         • Reputation
         • Res gestae
           • So emotionally overwhelmed by event that concoction can be disregarded
     • Preserved common law exception
     • All parties agree
     • In the interests of justice
       • How much probation value Or how valuable is it to understanding other evidence in the case?
       • What other evidence can be given On the matter to the left
       • How important is it to the case as a whole
       • Circumstances made in, reliability of maker etc