Law of Evidence Issues - Case Study Example

Law of Evidence The general rule which has been established is that to certain exceptions, every person is competent to give evidence and can also be compelled to do so1. The Youth and Justice Criminal Act of 1999 states that “at every stage in criminal proceedings, all persons are (whatever their age) competent to give evidence.”2 A witness who chooses to ignore a summons to give evidence is guilty of contempt of court and can also be imprisoned.3 The potential witnesses in this case would be Nisha, Sunita and the two children Indira and Lisa. The only exceptions to the rule of competence and compellability to give evidence would be in the case of the children. A child witness under the age of 16 would automatically qualify as a vulnerable witness4 especially when complaining about a sexual offence.5 Such a witness can be called to appear personally in Court through a Special measures Direction, whereby the witness may be allowed to provide testimony via video, or from behind a protective screen or over a live television link.6 Thus, in this instance, although the children may not be compellable, the Court may be able to call for them to be witnesses, by allowing them special protection when they are doing so. But it also appears likely that this may apply only in the case of Lisa. Indira is only 4 years old, hence there is a reduced capacity for understanding, but in the case of R v McPherson7 it was held that a child that can speak and understand basic English with strangers will be competent. Frank would also be classed as incompetent as a witness for the prosecution. According to the Criminal Evidence Act of 1898, “ a person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application.”8 Where Nisha is concerned, she is Frank’s spouse and would be held to be a compellable witness and can be summoned to give evidence about the “specified offence “ with which Frank is charged9, especially since the category of offence in this case falls under the category of “an assault on , or a threat of injury to, the wife...”10, which is one of those offences where witness can be compelled. Where Sunita is concerned however, the specified offence does not strictly fall under the category of an assault on a wife or an assault on a person under the age of 16, as specified under Section 2A-4A, therefore her testimony may not be compellable. She would need to be treated as an ordinary witness and then asked to testify. 2. The prosecution can call upon all the witnesses – Nisha, Sunita and the two children to testify, including making Nisha a compellable witness, while Indira’s competence can also be established. The prosecution could arrange for witnesses such as Nisha and Indira to be interviewed using special measures such as a video link, so that they are prepared to come forward and testify. There is also an issue with Nisha, who is estranged from Frank and is also afraid of him. The prosecution could argue that evidence about Nisha and her life with Frank may be permissible for admission, because it is in the nature of important explanatory evidence11 which could provide a basis for establishing Frank’s proclivity to criminal tendencies. The prosecution may also have the option to call in witnesses who can tender expert opinions from medical professionals about whether Frank’s assault can indeed be held to be the cause of Sunita’s brain damage. Expert psychiatric evidence12 of this kind may be called for in this case, to determine the extent of Frank’s guilt. In criminal proceedings, where training or coaching of witnesses may be prohibited, the prosecution is nevertheless permitted to familiarize the witnesses. As the Court clarified in the case of R v Momodou13 training of witnesses is banned because witnesses may modify their testimony in the light of what others have said. But the prosecution is allowed pre-trial arrangements, so that witnesses are not disadvantaged because they are ignorant of court processes. 3. If Nisha starts to give evidence but declines to carry on, Section 80 of the Police and Criminal Evidence Act of 1984 will apply, so that she can be compelled to go on. 14 However, there is also existing legal precedent for the wife in some cases to not be a compellable witness, even if she is a competent witness, so that she can refuse to give evidence. For instance, in the case of R v Pitt, the Court of Appeal held that just because a wife has started off by giving evidence at the committal proceedings or has made a witness statement, her choice on whether or not to continue to give evidence is not lost. She has the right to refuse to be a witness right up to the time she takes her oath in the witness box and in the event she waives her right to refuse to give testimony, this waiver needs to be made based upon her full knowledge of her right to refuse. If however, being fully aware of her right to refuse, the wife waives this right of refusal to testify, then she will be treated as any other ordinary witness would be and can be compelled to testify. In this case, Nisha has started to give some evidence, but if this has not extended beyond the committal proceedings, then she may still have the right to refuse to give further testimony. In asking for prior statements to be admitted in testimony, the prosecution can invoke Section 3 of the Criminal Procedure Act of 1865 if the witness Nisha’s present testimony in the court proves to be adverse, because she is afraid of Frank. The relevant provision states that when a witness has made a former statement which is inconsistent with his testimony in Court, “proof may be given that he did indeed make it” and the Prosecution could use this argument to justify Nisha’s earlier indictments against Frank. Alternatively, since the issue is not that she does not want to be a witness but rather that she is too scared to carry on, the prosecution can also request that the special protection available under Section 21 of the Youth and criminal Justice Evidence Act, which would in any event be applicable to Lisa and Indira. 4. The evidence about previous offences and convictions may fall under the evidence of character which cannot be adduced15 so it may be inadmissible since it is difficult for a person to establish a uniform propriety of conduct throughout his life16. In earlier cases involving theft17 and prostitution18 for example, previous convictions were held to be inadmissible in a Court of law. In the case of a civil offence, the general rule established in law is that prior evidence on a person’s character will be considered irrelevant if it is not a probative issue.19 It will not be admissible unless it is relevant to the issue before the Court20 because evidence on prior misconduct could be prejudicial to the interests of the parties. But the Criminal Law Revision Committee was of the view that it was wrong and inconvenient to require the prosecution to prove the guilt of persons against whom previous convictions exist for similar offences21. The prosecution has the option to allow Frank to put forth a statement attesting to his general good character, as a result of which a Judge would need to direct the jury as to his good character in the past, even if he has a previous conviction. In the case of Redgrave13, the appellant sought to provide evidence of his heterosexual conduct to rebut the charge of homosexual offences, but the evidence was inadmissible because only evidence showing that he did not commit the particular offence would be admissible. In the case of R v Timson and Hales14 the appellant challenged his conviction on the grounds that the Judge had failed to direct the jury as to his good character, and the Court held that such a direction should have been given. Accused persons are not only permitted to introduce evidence of their good character, they are also entitled to a direction on the effect of such evidence, which was stated in the case of R v Berrada15 where the Judge herself was required to give a correct direction to the jury about the relevance of the defendant’s good character as it impacted upon his credibility. In so far as an assessment of the probative evidence is concerned, the Court must consider it when it is evidence of a person’s misconduct10 and contributes substantially to understanding the case as a whole11. According to Tapper, the probative force of the evidence will be weighed on the basis of three factors: (a) the cogency of the evidence that is sought to be adduced (b) the strength of the inference that may be drawn from such evidence about the disposition of the party and (c) the relevance that such disposition has to the facts of the case.12 On the basis of all of the above, it would appear that Frank’s prior convictions may be admissible in the criminal case, but not in the civil case against him. 5. The most significant precedent on a person of another faith swearing on the Bible in Court was laid out by Lord Lane in the case of Kemble22, where he stated as follows: “We take the view that the question of whether the administration of an oath is lawful does not depend upon what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgement. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and more importantly, is it an oath which the witness himself considers to be binding upon his conscience?” In the Kemble case, the witness was a Muslim who at the lower criminal Court had sworn on a Bible, but at the Appeals Court, swore on the Quran. This witness told the Court that he considered himself bound as deeply by the oath he had sworn on the Bible as the one he swore on the Quran. This case establishes the important principle that a person of a different religion swearing on the Bible does not necessarily indicate that there is a ground for dispute. Any appeal that Frank may seek to make in this regard would therefore have little chances at success, because Nisha’s oath on the Bible may be held to bind her despite her being a Hindu. Bibliography Elliot, Derek William and Phipson, Sidney Lovell, “Elliot and Phipson manual of the law of evidence”, Taylor and Francis Tapper, Colin, 1995. “The erosion of Boardman v DPP” New Law Journal, 145 (6708) : 1223 Cases cited: Berrada (1989) 91 Cr. App. R 131 Hollington v Hewthorn & Co Ltd (1943) KB 587 Makin v AG NSW (1894) AC 57 Redgrave (1981) 74 Cr. App. R 10 R v Kemble (1990) 91 Cr App R. 178 R v Yusuf (2003) 2 Cr App R 488 CA R v McPherson (2006) 1 Cr App R 459, CA R v Turner (1975) 1 All ER 70 R v Momodou (2005) 2 All ER 571, CA R v Hassan (1970) 1 QB 423 CA R v Timson and Hales (1993) CLR 58, CA Scott v Sampson (1882) 8 QBD 491 Read More