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Preliminary Evidential Matters - Coggle Diagram

- - - - An admission may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter
        
        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 it should be such that what has been admitted should appear clearly on the shorthand note
      - Now, the Crown Court Digital Case System or the recording of the proceedings)
        
        It is also important that the jury are clear as to what has been formally admitted
      - For example, in a case which counsel for D formally admitted every fact alleged in the prosecution's opening speech and the prosecution called no evidence, relying solely on admissions, leave to appeal against conviction was refused
      - The court added, however, that such a procedure should be adopted only rarely and with caution, because jurors, when considering the opening speech, might find it difficult to distinguish between law, mixed fact and law, and comment
      - 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
        
        It also applies 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
- - - - In Mader [2018], the following propositions were said to be well established:
        
        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
      - However, evidence is admissible if it is relevant to an issue in the trial
      - The category of issues to which evidence of disposition may be relevant is not closed list
      - 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
      - For example. where D was of good character and the judge had given an appropriate good character direction, the Court of Appeal observed that unless a jury hear that a Crown witness is not of good character, they will no doubt assume that there is nothing to speak against the witness's credibility
      - 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
        
        Questions of Law and Fact: In a Trial on Indictment: General Principles
        
        Questions of law (including practice) are for the judge,
        
        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 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
        
        Application to Evidence Obtained Unlawfully, Improperly or Unfairly
        
        The primary importance of s. 78 is the fact that it extends the common-law powers by reason of its potential for the exclusion of evidence obtained unlawfully, improperly or unfairly
        
        The common-law powers are restricted to admissions, confessions and other evidence obtained from the accused after the commission of the offence
        
        Section 78, however, is capable of application to any evidence obtained illegally or by improper or unfair means and on which the prosecution seeks to rely, whether obtained from the accused, his or her premises or from any other source
- - - - Whether the accused stands mute of malice or by visitation of God;
      - The credibility of the witnesses called, and the weight of the evidence adduced; and
      - 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
      - The existence or non-existence of preliminary facts- 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)
      - In the case of proceedings dealt with by lay justices, the justices decide all questions of both law and fact,
      - On questions of law, including the law of evidence, should seek and accept the advice of the justice's legal adviser
- - - - Evidence is relevant if it is logically probative or disprobative of some matter which requires proof
      - The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience
      - For example, 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
- - - - 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
- - - - 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
      - For example, you cannot bring an omnibus/ bus to inspect to court
      - In deciding whether to direct an inspection the judge may take into account whether it will significantly improve the jury's understanding of the evidence
      - Whether it has been requested by the defence, its impact on the activities of those who work, the disruption, the inconvenience to the jury and the delay to the trial
      - A view should not take place after the summing-up
      - 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 should take place before the conclusion of the evidence and in the presence of the parties or their representatives,
      - The presence of the accused is important because he or she may be able to point out some important matter of which the legal adviser is ignorant or about which the magistrates are making a mistake
        
        Discretion to Exclude at Common Law Nature of Discretion
        
        A Judge, as part of his or her inherent power and overriding duty in every case is 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
        
        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
- - - - The fact that evidence of Defendants conduct might have a prejudicial effect is not a reason to exclude
      - For example, in a case of fraudulent trading, in relation to evidence of 'ticket touting' for two highly emotive events, a concert in memory of those killed in a terror bombing and a teenage cancer trust concert)
        
        Evidence open to exclusion at common law:
        
        Any admissible evidence which is likely to have a prejudicial effect out of proportion to its probative value,
        
        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 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'
        
        For example where A and B were jointly charged with having conspired to commit an offence
        
        A pleaded guilty and B not guilty
        
        At the trial of B the prosecution sought to admit the conviction of A under the PACE 1984, s. 74
        
        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