RECENT DEVELOPMENTS IN EVIDENCE Bits

1
RECENT DEVELOPMENTS IN EVIDENCEBits pieces,
bad character and hearsay
2

• Impact of Crim PR and procedure generally on the
  law of evidence
• CAs willingness to adopt broad formulations
  under 2003 Act
• S 78 of PACE always to the rescue?
• (Mis)trusting the jury?

3
Experts

• New CPR 33
• CA continues to apply Bonython from S Aus.
• CA denies a restrictive test such as Daubert

4
Frye

• Frye - expert evidence is admissible if the
  techniques, theory, or knowledge on which the
  expert proposed to rely had gained general
  acceptance in the relevant intellectual community

5
Is Bonython to be trusted?

• .(b) whether the subject matter of the opinion
  forms part of a body of knowledge or experience
  which is sufficiently organised or recognised to
  be accepted as a reliable body of knowledge or
  experience, a special acquaintance with which by
  the witness would render his opinion of
  assistance to the court.

6
Bonython Frye

• The Australian Law Reform Commission concluded
  that Bonython Fryes general acceptance test.
• The NSWCA treat Bonython as a Frye test Parenzee
  2007 SASC 143.

7
Section 41

• To ensure reasoned applications made
• To ensure proper judicial consideration
• Defence
• Applications in writing
• Within 28 days of prosecution disclosure
• Set out issues, give particulars of evidence
• Crown
• Reply within 14 days in writing
• Trial applications
• To be discouraged

8
Section 41 Sexual offence?

• Section 62 YJCEA as amended by SOA 2003, refers
  only to SOA 2003
• D charged in 2007 with offence of rape in 2002
  contrary to 1956 Act
• Does s 41 apply?
• Can it be argued that s 41 applies since it
  applies to all proceedings after 04/01/00?
• Must s 62 be read down to comply with article 8
  rights of the complainant?
• In R v Warner (2007) HHJ refused to do so.

9
S41 restricts only defence evidence

• Soroya
• Crown can lead sexual history of complainant
• Crown not bound by s 41
• If Prosecution overdo it, s 78 can be used to
  restrict the sexual evidence of the complainant
  being led by the Crown
• S41(5) not in itself a sufficient equalizer
• No notice on Crown
• Not bound by s 41(6), nor 41(2)
• new CPR rule 36

10
Special Measures

• Ministry of Justice Circular 25/06/2007
• Where investigation into the offence started on
  or after September 1, 2007
• Trial in Crown Court
• Special measures direction allowing video
  recorded exam-in-chief for complainants, eligible
  under s 17(4) in sexual cases

11
The Hearsay Provisions of the CJA 2003

• The latest

12
Policing the hearsay process

• CA hands off approach unless trial judge is
  Wednesbury unreasonable.
• Musone
• Finch
• Trial Judge has power to exclude hearsay if
  late application made. Should not be used to
  discipline
• Musone

13
Previous inconsistent

• Evidence of truth if
• Witness admits making inconsistent statement
• under section 3, 4 or 5 of the Criminal Procedure
  Act 1865
• or
• given in evidence under section 124(2)(c) (credit
  when missing witness)
• NB
• S 126 power to exclude superfluous
• s 122 on jury use of documents

14
Previous INconsistent

• Jury not to take documents back to the jury room
  unless necessary
• Arguably jury ought not to have documents before
  them during trial
• Clear direction to jury needed and more detail if
  jury have documents
• Hulme
• Section 78 available for trial judge to ensure
  fair use of s 119
• Coates

15
Previous consistent s.120

• Admissible as evidence of truth where
• rebut allegations of recent fabrication
• exhibited aide memoire
• W confirms earlier statement as true and
• previous identification of person/place
• fresh statement which W now does not/could not be
  expected to recall.
• It was evidence of recent complaint

16
Previous CONsistent

• If W refreshes memory and cross examined on parts
  of document read, the document is not an exhibit
• Pashmforoush
• Prosecutors need to be prepared when relying on s
  120(4)
• AA

17
Previous CONsistent

• A previous consistent statement is evidence of
  the truth of what was stated, but in considering
  weight, the jury should have in mind that it is
  not independent evidence
• R v AA

18
Memory refreshing s.139

• Test of contemporaneity removed.
• New test of whether witness recollection likely
  to have been significantly better when he made
  or verified the document/sound recording
  transcript.
• Judge retains discretion not to allow
• McAfee

19
The Rule removing implied assertions s 115

• (3) A matter stated is one to which this Chapter
  applies if (and only if) the purpose, or one of
  the purposes, of the person making the statement
  appears to the court to have been-
• (a) to cause another person to believe the
  matter, or

20
Applying s 115

• CA taking pragmatic approach.
• W says I heard X unidentified say hello
  Marvin on the phone.
• Hearsay?
• S 114(1)(d) in any event?
• A new hearsay fiddle?

21
s.116 Automatic Admissibility

• Applies to oral / documentary / other hearsay
• Relevant person absent
• Dead
• Unfit to attend as a witness
• Abroad/not practicable to secure
• Cannot be found
• Or in fear if interests of justice satisfied

22
Automatic Admissibility s 116

• Automatic - no need for leave, provided that
• Relevant person identifiable (What is identity?)
• Relevant person competent (s.123)
• S.78 exclusion not applicable

23
Unfit to appear as a witness

• Unfitness is not about unfitness to attend R v R
• The party seeking to rely on the statement of the
  relevant person must establish his unavailability
  by admissible and reliable evidence
• R (Meredith) v Harwich JJ
• Loveridge
• R (CPS) v Uxbridge Magistrates Court
• Dover

24
Witness abroad and not practicable to secure
attendance

• NOT about whether it is reasonably practicable
  for the witness to attend
• Gyima

25
Absent through fear - admissible with leave
s116 (2)(e)

• Relevant person in fear (widely construed)
• Fear to be assessed against case history Boulton
• Calling a witness to establish their own fear not
  encouraged Davies

26
Art 6 ECHR

• No absolute ban on conviction based solely on
  hearsay
• Sufficient safeguards to ensure article 6
  compliance
• Cole Keet

27
Business Docs s 117

• Statement in a document
• Relevant person must have capacity
• Documents created/received in course of trade or
  business
• Multiple hearsay admissible
• If for criminal proceedings, one of the six
  absence criteria to be satisfied.
• Reliability based discretion in subs(7)

28
The safety valve

• 114 Admissibility of hearsay evidence
• (d) the court is satisfied that it is in the
  interests of justice for it to be admissible.
• Not a box ticking exercise! - Musone

29

• Probative value of statement (assuming it to be
  true) or value for understanding evidence?
• (b) What other evidence is available?
• (c) How important is evidence in context of the
  case?
• (d) In what circumstances was statement made?
• (e) Reliability of the maker?
• (f) Reliability of the evidence of making of
  statement?
• (g) Can oral evidence of issue be given? if not
  why not?
• (h) Difficulty involved in challenging the
  statement?
• The extent to which that difficulty would be
  likely to prejudice the party facing it.

30
S 114 (1)(d)

• Must it be used only as a last resort
• If one of the other gateways fails is it still
  available?
• Can it be used as a first resort?
• Do the conditions in s 114 apply in relation to
  other gateways? (see Cole and Keet)

31
Does safety valve admit co-Ds statement

• D2 makes statement which inculpates D1.
• Can Crown adduce D2s interview as against D1?
• Hearsay
• Safety valve
• Other challenges?

32
Bad character
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Preparation

• Notice complied with?
• What is sought to be adduced?
• Fact of conviction?
• Details of offence?
• Why is it being relied on?
• Do adequate records exist?
• Can they be proved?
• Do they relate to D?
• Are the facts in dispute?

34
Late applications

• Late application to adduce seems not to be fatal
  if there is no unfair prejudice to D
• Malone
• Has D had sufficient time to respond?
• Spartley

35
Proving convictions

• S 117 of 2003 Act may be used in some
  circumstances
• Hogart
• Humphris Ainscough.
• S 114(1)(d) may be used in some cases
• Summary of facts of earlier trial from
  conviction R v S
• BUT, use of s 74 of PACE still to be treated with
  care R v Smith
• Foreign convictions can be used
• Kordasinski

36

• Is the evidence in question evidence of, or of a
  disposition towards, misconduct as defined in
  section 112(1)? If no, the bad character
  provisions do not apply but the evidence may be
  admissible at common law.
• If yes, does the evidence have to do with the
  alleged facts of the offence charged? If it
  does, the bad character provisions do not apply
  but the evidence might (well) be admissible at
  common law.
• If it does not, the evidence is evidence of bad
  character and will only be admissible through a
  section 100 or 101 gateway.

37
Reprehensible conduct

• Being aggressive towards partner?
• Osborne
• Exaggeration in the school yard
• V
• Taking an overdose
• Hall Chung
• Having been subject to police disciplinary
• Livesey
• Rap lyrics?
• Saleem

38
Bad character (s. 98)

• misconduct or disposition towards misconduct
• "misconduct" means the commission of an offence
  or other reprehensible behaviour (s. 112(1))
• Does NOT include conduct to do with alleged facts
• Does NOT include misconduct related to
  investigation

39
To do with the offence?

• S 98(a)
• Allegations forming part of same incident R v W
• Some nexus between the offence and the current
  trial
• Tirnaveau

40
Multiple counts

• Evidence from count 1 can be used in determining
  guilt on count 2, where evidence on count 1 is
  propensity/bad character Chopra

41
Multiple counts

• Bad character can encompass circumstantial
  evidence in a multiple count case Wallace
• Care must be taken with directing juries in cases
  of cross admissibility Lamb

42
Campbell

• Untruthfulness only likely to be in issue if lies
  form part of the offence
• Section 103(1)(b) propensity for untruthfulness
  seems redundant
• in short whether or not a defendant is telling
  the truth is likely to depend simply on whether
  or not he committed the offence

43

• The change in the law relating to character
  evidence introduced by the 2003 Act should be the
  occasion for simplifying the directions to juries
  in relation to such evidence. Decisions in this
  field before the relevant provisions of the 2003
  Act came into force are unhelpful and should not
  be cited. Where evidence of bad character is
  introduced the jury should be given assistance as
  to its relevance that is tailored to the facts of
  the individual case. Relevance can normally be
  deduced by the application of common sense. The
  summing up that assists the jury with the
  relevance of bad character evidence will accord
  with common sense and assist them to avoid
  prejudice that is at odds with this.

44

• "Members of the jury. In the old days juries were
  usually not told about a defendant's previous
  convictions. This was because of the fear that
  such information would prejudice the jury against
  the defendant and that they would give it more
  weight than it deserved. Today such evidence is
  often admitted because a jury understandably want
  to know whether what the defendant is alleged to
  have done is out of character, or whether he has
  behaved in a similar way before. Of course a
  defendant's previous convictions are only
  background. They do not tell you whether he has
  committed the offence with which he is charged in
  this case. What really matters is the evidence
  that you have heard in relation to that offence.
  So be careful not to be unfairly prejudiced
  against the defendant by what you have heard
  about his previous convictions