Evidence

Question 1

What is an application for dismissal? When can it be made and what is the key test?

Answer 1

• Pre-trial application to CC judge to have charges against a defendant dismissed
• Must give written notice if D intends to make oral application

Can be made:
- After D sent by magistrates’ for trial to CC
- After D served with evidence
- Before D enters plea (arraignment)

Key test: Judge determines a charge if it appears that the evidence against the applicant would not be sufficient for him to be properly convicted

Question 2

What is an application to exclude evidence under s78 PACE?

Answer 2

• Application to exclude evidence obtained unlawfully/unfairly/in breach
• Applies only to prosecution evidence

Can be made before/at commencing/during trial

Key test: would admission of evidence have such an adverse effect on fairness of proceedings that the court ought not to admit it?

Question 3

What is a voir dire?

Answer 3

• Mini trial focused on dispute on facts between defence and prosecution
• Preliminary issue for applications to exclude evidence under s76 and s78
• Required if factual matter relating to substance of legal argument requires resolution for argument to proceed
• Judge must be satisfied of P’s factual position beyond reasonably doubt

Question 4

How is confession evidence defined?

Answer 4

Any statement made wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise

Question 5

What is an application to exclude evidence under s76 PACE? Two methods of challenge?

Answer 5

Application to exclude a confession. Applies only to prosecution evidence

1. Oppression
   - P must prove beyond reasonable doubt that was not obtained by oppression
2. Anything said or done which causes unreliability
   a) things said or done
   b) does it render confession unreliable - objective test
   c) P prove beyond reasonable doubt

Question 6

What are the confessions of exclusion of confession with regard to the surrounding facts?

Answer 6

• Does not prevent facts discovered as a result of confession being relied upon in evidence
• Does not prevent prosecution using part of the confession to show speech, writing or expressions of accused

Question 7

What is application to exclude evidence under s82 PACE?

Answer 7

Common law discretion of courts to exclude evidence where its prejudicial effect outweighs its probative value
- applies only to prosecution evidence

Question 8

When should an application to exclude a confession be made?

Answer 8

Crown Court
- would fatally weaken prosecution case: pre-trial hearing or prior to opening speeches
- less significant: just prior to prosecution seeking to admit evidence

Magistrates
- preliminary issue

Question 9

When must Turnbull guidelines be followed?

Answer 9

a) D disputes identification evidence
b) Identification evidence is wholly or substantially the only evidence implicating D

Question 10

What is a Turnbull direction?

Answer 10

Judge warns jury of special need for caution before convicting the accused in reliance on correctness of the identification

Question 11

What evidence can support identification evidence?

Answer 11

a) scientific evidence
b) multiple identifications by different witnesses
c) accused’s bad character or previous convictions
d) accused’s silence on interview
e) accused’s admissions at scene / interview / witness box

Question 12

What is the judge’s duty in relation to identification evidence?

Answer 12

Two principal questions:
a) Quality of identification evidence?
b) Is there any other evidence to support correctness of identification?

Question 13

What factors are used to assess quality of ID evidence? ADVOKATE

Answer 13

• Amount of time under observation
• Distance
• Visibility
• Known or seen before
• Any reason to remember
• Time lapse
• Error or material discrepancy

Question 14

What is likely consequence of failure to give Turnbull direction where one is required?

Answer 14

Conviction likely to be quashed on appeal

Question 15

What guidance does the case of Hanson provide for bad character applications to adduce previous convictions on grounds of propensity?

Answer 15

Strength of the prosecution’s case needs to be considered

Question 16

When can a judge give a good character direction to the jury?

Answer 16

Given to a defendant who is either of absolute good character or effective good character (has previous convictions but they are minor, old or of no relevance to the charge)

Question 17

When would the judge give a propensity direction instead of a good character direction?

Answer 17

Where the caution is minor in nature, the defendant accepted their guilt and the caution has no relevance to the current charge

Question 18

When is a defendant entitled to a credibility limb direction?

Answer 18

• Given evidence under caution
• or under oath in court

Question 19

When is the potential adverse effect on fairness of proceedings considered for bad character application gateways?

Answer 19

It is only relevant to gateways: (d) matter in issue, and (g) attacking another person’s character

The court will consider if the bad character evidence should be excluded as it would have an adverse effect on fairness of proceedings

Question 20

Why is a diary entry not hearsay evidence?

Answer 20

It falls outside the definition of a matter stated

Question 21

When is a Turnbull direction given?

Answer 21

When ID evidence is weak and the case depends wholly or substantially on the correctness of ID evidence

Question 22

What are examples factors which are considered when assessing strength of evidence (ADVOKATE)?

Answer 22

If it is dark, late at night, individual was drunk and did not get a clear view

This would suggest weak evidence - which may require Turnbull direction

Question 23

Can the jury be directed to draw an adverse inference from a defendant’s silence if the defendant has a mental health condition (e.g., schizophrenia)

Answer 23

The judge could direct the jury not to draw an adverse inference
- if it appears that the defendant’s mental health condition makes it undesirable for them to give evidence at trial
- the defence would need to discharge the evidential burden that the defendant has the mental illness