Law of Evidence - Case Study Example

Law of evidence Affiliation Law of Evidence Facts in issue: these are factual elements of the offence that the accused person has been charged with, as well as, any defence and they include: Intentional controls: lap-top is being used to create advertisements on the internet for sexual services to be provided at the house in east London. Activities of another person: Tom gave her accommodation and a wage of 40 per week in return for her working as a prostitute at his house in east London. Relating to that persons prostitution in any part of the world: lap-top is being used to create advertisements on the internet for sexual services to be provided at the house in east London. Expectation of gain for himself or a third person: money in the kitchen amounting to 5,000. She says that when she was late in giving him her earnings he would threaten to report her to the police and would punch her in the stomach Items of evidence: Boxes of condom and stash of money Laptop computer Witness statement, i.e. Alana and Patience PC Story Reports on tom’s previous statement Evidential issues Various issues arise from the case study in relation to the admissibility of evidence provided by PC story. This follows the phone call that was received and how evidence was obtained illegally without the use of a warrant. Therefore, in case of the presentation of such evidence in court then it would be inadmissible because it is termed as irrelevant. According to the fundamental rule established in the case of Wilson1 Barwick CJ held that the “ The fundamental rule governing the admissibility of evidence is that it be relevant.” Therefore, the touchstone of admissibility is relevance meaning that evidence that is relevant is admissible and the one which is irrelevant is inadmissible. In the case of R v. Osbourne & Virtue2 Lawton LJ in making his judgment made the following observations in relation to what is evident. “In police experience evidence means information which can be placed before the court and it means that not only to the police office, but the general public, as is clearly shown by one of the meanings given to the word evidence. The law defines evidence as the information given in a legal investigation to establish fact or point in question.” Therefore, the prosecution has to present evidence that is relevant and that can be seen by the public. In the case of R v. Apilleca3 Lawton J in delivering the judgment of the court indicated that “A basic principle of the law of evidence is that evidence that is relevant should be admitted, unless there is a rule of law which states that it should not be.” Another case that explained admissibility of evidence in court was the case of R v. Funderburk4 Henry J stated “One starts with the obvious proposition that in a trial relevant evidence should be admitted and irrelevant evidence excluded. “Relevant" means relevant according to the ordinary common law rules of evidence and relevant to the case as it is being put as was held in the case of Viola5.” In his opinion relevance can be said to be the a matter or degree in each case, where the question in reality is whether or not evidence is or is not sufficiently relevant. The facts in issues are those facts which are used to determine the guilt of the defendant. In the case of Pollitt v R 6Brennan J held that” The first condition of admissibility of evidence is relevance. In that apart from questions relating to the credibility of a witness, a fact which evidence is tendered to prove must be a fact in in issue or a fact that is relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved, and, secondly, on the relevance of the fact to be proved to a fact in issue7.” In the case of PC Story providing the phone call as evidence was intended to prove that the defendant was guilty of the offense of controlling another person with the intention of getting financial gain. However, the manner in which the evidence was obtained made the evidence inadmissible in court. The mere fact that the evidence was correct without any authority or warrant made the evidence irrelevant and could not be used to establish the facts in issue in the case. The laptop, the stash of condoms and the $5,000 would be admissible in court as they we obtained while the police officers obtained a warrant of to search the premises. However, even though such evidence is admissible in court, the court must still determine the weight in which the evidence should be given in relation the amount of significance. The court has the discretion to put the weight it wishes on each type of evidence that is presented before it or to each witness. This was illustrated in the case of In Samuel Dalu v R8 Palmer J indicated” It is trite law that matter on weight of evidence are matters for the magistrate as the judge of both fact and law to decide upon. In that, the questions on the weight of evidence are not determined by arbitrary rules, but by logic, experience and common sense.” Birch J stated in the case of R v Madhub Chunder9” For weighing evidence and drawing inferences from it, there can be no cannon. Each case presents its own peculiarities and each common sense and shrewdness must be brought to bear upon the facts elicited.” The court held the same in the case of DDP v Hesrter10. Therefore, even though evidence can be admissible in court the fact of its weight has to be established in order to determine its significance in the case. In the case of Tom, the laptop, the money and the condoms were of great importance to the courts because they established that he was using his house at east London not as beauty parlour, but for prostitution. The recordings made by the Patient and the evidence given by Alana were said to be hearsay. This is because the oral statement given by the witness who cannot be cross-examined cannot be admitted in court. The reason there is a difficulty in admitting hearsay evidence is because unlike direct evidence where the evidence is given under oath where the witness understands that there is criminal liability in case of perjury in instances where the evidence is proven as false11. In addition, in giving direct evidence, there is room for the witness to be present in court given the defense the opportunity to cross examine. However, in hearsay evidence all these possibilities are not available because in hearsay evidence there is no recollection of evidence or elimination of potential ambiguities. The case of Pollitt v R12 examined the admissibility of hearsay evidence. However, the case of Ratten v R13 provided the major distinction between original and hearsay evidence. Lord Wilberforce in his judgements stated ”The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on testimonially, i.e., as establishing some fact narrated by the words14.” This ruling was further restated in the judgement of the Board in the case of Subramanian v Public Prosecutor15. Therefore, by placing exceptions to the rule it allows the court to allow hearsay evidence in instances where it is impossible to present the witness on the stand. Hearsay evidence works in two ways where first, it forbids using the credit of any absent declaration as the basis to make any conclusions16. Secondly, it prohibits the use in the same way the mere evidential facts of the statement as having been made under and in such circumstances. Under section 11417 hearsay evidence is defined as statements not made in oral evidence in criminal proceedings. This evidence is only admissible in court only if they full certain conditions. Section 114 (1) (d)18 states that in order to admit hearsay evidence in court it should be in the interest of Justice. In the sense that, it must be established that in order to admit hearsay in court such evidence will interest the force of justice; thus holding the charged person responsible for the accused crimes. Additionally, such evidence should create unfairness on the part of the defendant whereby for instances the defendant cannot manage to challenge the hearsay evidence. This was illustrated in the case of Sparks v R19 and R v Blastland20. Secondly, under section 11621 the witness should not be able to attend in court. The testimony of a witness can be read in court if it has been established that such witnesses will not manage to attend the court proceedings. However, in order for such evidence to be admissible the maker of the statements should be cleared identified to the satisfaction of the court. The Act further indicates that the absent individual making such statements s must follow under the five categories22. They are that the person must be dead, unfit to give any evidence in court due to a mental condition or mental harm. Such individuals should be outside the United Kingdom and it would be impracticable to secure their attendance in court. The individuals to give evidence cannot be found and it has been established that reasonable steps have been taken to find them. Lastly, the giver of the hearsay information must be afraid to testify or continue to testify. Thirdly, the evidence is in the form of a document as provided under Section 117 and lastly, the evidence comprises multiple hearsay under section 121. In the case of Luca v Italy23, European Court of Human rights, it was held that proceedings that a conviction is decisively or solely based upon the evidence of witnesses which the accused is not given the opportunity to examine in is a breach of Article 6 of the Convention which the right to a fair hearing. In the case of R v Arnold24, the Court of Appeal indicated that allowing the hearsay rule would allow some of the expectations, thus, giving the prosecution the license to intimidate witnesses. Therefore, although there are some exceptions that have been provided the court does not allow the prosecutors to be prevented from testing their cases. There is a test that is applied in order to correctly interpret the law in relation to the admissibility of hearsay evidence. First, it is important to establish the purpose for which the evidence is sought to be admitted. This is because in case the prosecution relies on the evidence as being the truth of the information contained in the statement then it said to be hearsay because in case the witness who gives the evidence box does not have any direct knowledge of the evidence contained in the statement. In this case direct knowledge denotes the reception of evidence through the use of witness own senses. In the case of Sam Salfilamo v R 25the Court of Appeal held that “The last ground of the appeal was one of law and related to some hearsay evidence given by three of the witnesses. There undoubtedly was some hearsay evidence given, though some of the complaints from hearsay were in fact original evidence given not to prove the truth of what another had said, but to show why the witness had acted in the way he did.” In the case of Frank Norman Hiki v R26 Davis CJ stated that in order for a sketch plan or hearsay evidence to be admissible in court the individual seeking to produce that evidence in court must have all the direct data enclosed in the plan. In the case of Tom, hearsay evidence was from Patience, who had made a recorded statement, which PC Story had and had produced in court. The defense argued that the evidence was inadmissible because the person who gave the statement was not available in court for cross examination; thus the facts given in the recording could not be verified. Additionally, in case the prosecution wanted such evidence to be admitted in court they would had ensured that a statement of admission was in reference to the recording indicating that the reason the witness was not available was because she was afraid to testify27. The defendant had threatened the witness where he had stated that he would take him to the police or punch her in the stomach. Although the witness had fled and she was in Ghana the prosecution did not see it fit to bring her back just to make a statement in court. Therefore, the recordings and the statements made by patience and Alana could not be admitted as evidence in court as they were established as hearsay and they were not admissible in court as they did not fall under the exceptions provided under the Criminal Justice Act of 2003. The issue of character evidence was also evident in the case study where the record of Tom’s previous conviction was introduced in the court in order to show that he was guilty of the crimes that he had been accused of committing. However, general character evidence is inadmissible in court, although it can be admitted in cases where the accused person has made an attack on another person’s character28. For example, in this case study Tom was attacking PC Story’s character when he took the stand and indicated that PC Story was out to revenge because in the previous case where he was accused of burglary he was acquitted. Conversely, in order to effect justice and sentencing on the accused person character evidence may be used. In criminal proceedings the good character of the accused person is admissible in court to show that the accused person did not commit the offense as was held in the case of Aziz29. However, according to the case of Rowton, 30 it was held that the evidence in chief of an accused person’s good character can only be general and should not involve specific acts. Section 9931 defines bad character as the evidence of or a disposition towards misconduct. This section further eliminates all common law, regulations and rules regarding the admissibility of bad character in relation to the accused person or the witness32. The Act further states that the only time bad character is admissible in court is in instances where it falls under the provisions of the statute. Section 101(f) & (g) of the Act provides that the evidence of bad character on the part of the defendants may be admissible in case the evidence is to correct a false impression given by the defendant33. In this case the accused person gave an impression that PC Story was out for revenge and adducing his previous convictions would establish that Tom was a person of bad character. Section 101 (g) provides that in instances where the defendant has attacked another person’s character the Bad character evidence can be adduced in court. However, the court has a duty to discharge the jury or order an acquittal where it is proven that the evidence admitted in court under section 101 par. (c) To (g) is contaminated, thus leading to any unsafe convictions. In this case, evidence is contaminated in instances where false and misleading issues have been raised while trying to scrutinize the character of the accused person34. It has been held that admitting bad character on the defendant’s case does not lead to an unfair trial. This was held in the case of X v Denmark Yearbook35, the Strasbourg commission indicated that since various members of the states provide disclosure of previous convictions during the criminal proceedings the court is not prepared to hold such procedures in violation of any provisions provided for under Article 6. Additionally, the provisions do not cause any effect when it comes to reversing the burden of proof because they make evidence admissible against a defendant who had previously been held inadmissible36. Therefore, to that extent it makes the prosecution of Justice easier for the prosecution when it comes to discharging the burden of proof on the defendant’s guilt. Although this is not the same case when it comes to requiring the defendant to prove his or her innocence.37 Physical evidence on the other hand can be introduced in court as an exhibit to a witness statement or as a separate item on its own38. Physical evidence comes in different forms and it may be in the form of written statements, maps, certificates, sound and video recording and machinery among others. To admit this form of evidence in court the correct rules and procedures should be follows, although in some cases, some evidence just speak for them while others have to elaborate or be adduced by a witness before they become receivable as evidence in court39. Computer evidence is said to be reliable only in instances where the computer is held or presumed to be working properly40. In this case the computer was being used to create advertisements and when it was confiscated by the police the computer was working properly; hence, admissible as physical evidence. This is provided for under section 60 of the Youth Justice and Criminal Evidence Act 1999. Conclusion The issues of admissibility of evidence in court have been brought out in these cases where it has been established that only relevant evidence can be admissible in court. Additionally, the hearsay rules, exceptions have to be adhered to in order for such forms of evidence to be admitted in court. In the case of Tom the use of Bad character evidence would be in the interest of justice because he took the stand only to insult the character of PC Story and for that reason admission of bad character evidence would amount to a fair trial. References Allen, C. J. W. (2001). Practical guide to evidence. London: Cavendish. Aziz (1995) 3 All Er 149 Buckles, T. (2003). Laws of evidence. Clifton Park, NY: Delmar Learning. Choo, A. L.-T. (2012). Evidence. Oxford, U.K: Oxford University Press. Criminal Justice Act of 2003 DDP v Hesrter [1972] 3 AllER 440 Dennis, I. H. (2010). The law of evidence. London: Sweet & Maxwell. Durston, G. (2011). Evidence: Text & materials. Oxford: Oxford University Press. Frank Norman Hiki v R (Unrep. Criminal Appeal Case No. 9 of 1979) Gardner, T. J., & Anderson, T. M. (2009). Criminal evidence: Principles and cases. Belmont, CA: Wadsworth Cengage Learning. Glover, R., & Murphy, P. (2013). Murphy on evidence. Oxford: Oxford University Press. Great Britain. (2005). Human reproductive technologies and the law. London: Stationery Office. Keane, A., & McKeown, P. (2014). The modern law of evidence. Oxford: Oxford University Press. Luca v Italy ECHR (2003) 26 E.H.R.R 46 Munday, R. J. C. (2013). Evidence. Oxford: Oxford University Press. Pollitt v R (1991 – 1992) 174 CLR 558 R v Arnold( 2004) 6 Archbold News, CAP R v Blastland (1986) ACC 41 R v Cowan [1996] QB 373 R v Madhub Chunder (1874) 21 WRCr 13 R v. Apilleca (1986) 82 CrApp R 295 (1986) CrimLR 28 R v. Funderburk (1990) 90 CrAppR 466 CrimLR 405] R v. Osbourne & Virtue (1973) 1QB 678 Ratten v R [1972] AC 378 Roberts, P., & Zuckerman, A. A. S. (2010). Criminal evidence. Oxford: Oxford University Press. Rowton (1861-73) All ER Rep 549 Sam Salfilamo v R (Unrep. Criminal Appeal No. 10 of 1994) Samuel Dalu v R (Unrep. Criminal Case No. 43 of 1992) Sparks v R (1963) UKPC Spencer, M., & Spencer, J. (2013). Evidence: Law revision and study guide. Oxford: Oxford University Press. Subramanian v Public Prosecutor [[1956] 1 WLR 965 Viola (1982) 75 CrAppR 125, 3 AllER 73,76 77 Walton, D. N. (2006). Character evidence: An abductive theory. Dordrecht: Springer. Wilson (1970) 123 CLR 334 X v Denmark Yearbook (1965) Vol 8 p. 370 Youth Justice and Criminal Evidence Act 1999. Read More