Section 3 of the Criminal Procedure Act of 1865 - Essay Example

Law of Evidence In asking for prior ments to be admitted in testimony, the prosecution can invoke Section 3 of the Criminal Procedure Act of 1865 if the witness’ present testimony in the court proves to be adverse. 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 admitting his oral statements to Duane as evidence1. In this case, the testimony of WPC Kite is going to be averse to Duane’s interests and on this basis, the prosecution counsel can contradict by introducing prior oral statements that are inconsistent with the oral testimony provided in the Court2. In order to argue successfully in favor of admitting evidence, the Prosecution will be required to prove that: (a) such evidence relates to the subject matter of the proceedings. (b) such evidence is relevant in establishing the character of the witness (c) is the character of the witness relevant in terms of the subject matter of the proceedings? The major issue the Prosecution will have to prove is therefore the question of whether the evidence of the character of WPC Kite is relevant to the subject matter of the proceedings regarding Diane. The Prosecution could argue that the substance of WPC’s confessions should be admitted as important hearsay evidence on grounds of its relevance in understanding the probative value of the statements in understanding other evidence in the case.3 Further grounds they could use to argue for admission of WPC’s statements are the general provisions for admission of confessions4 admissions by agents5 or by utilizing the provision that “a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.”6 Moreover, since the statements of WPC Kite in Court will be inconsistent with his oral admissions to Duane in the car, this could provide additional grounds for the Prosecution to seek that such evidence be admitted.7 They could argue that since the testimony that WPC Kite will be offering in Court is likely to contravene the Defendant Duane’s assertion that he made unsolicited admissions in the car on the way to the police station, the admission of those oral evidence may be justified in providing evidence of his character and the fact that he did indeed make those statements. 2. In the event Duane wishes to resist the admission of such evidence, the major argument that can be offered is the lack of relevance of WPC’s criminal record in the issue of her theft indictment. For example, in the case of Funderburk8, the issue in question was whether the defendant had sexually assaulted the plaintiff. The defendant sought to cross examine on her sexual encounters with other men, however such evidence was dismissed on account of lack of probative value to the subject matter of the proceedings. On this basis therefore the Prosecution would have to show that evidence on cross examination about WPC’s prior indictments are probative and relevant to the issue of Duane’s indictment on theft and this may not be found to be the case. Moreover, the Criminal Justice Act9 of 2003, clearly states that evidence of bad character of a person other than the defendant will only be admissible if it is important explanatory evidence and has substantial probative value. Moreover, the question of admissibility of evidence that is of a hearsay nature such as in this case, is left to the discretion of the Judge, on whether or not such prior evidence pertaining to the witnesses’ statements will be admitted in testimony. The proposed cross examination that the Prosecution intends to carry out where it will question WPC on prior instances of misconduct or criminal behavior serves to establish the character of a person other than the defendant in this case – Duane. In such cases, evidence will be allowed only if it has substantial probative value and it can be shown that there is a distinct relation between the character of the person being cross examined and the subject matter of the trial. Therefore, if the evidence of WPC Kite’s bad character has substantial probative value in determining the question of extent of Duane’s guilt, it is only then that it will be admitted. Hence Duane can resist such cross examination on the grounds that it is not relevant and material to the issue of her guilt in the theft she is accused of. The question of relevance will have the maximum weightage if Duane is to resist the cross examination on the grounds that the character of the witness does not have a sufficient degree of relevance in the matter of the proceedings. She can argue that it does not constitute explicatory evidence or evidence that is of substantial probative value in the proceedings. 3. The question of good character of the defendant may allude only to the general reputation the defendant has, as spelt out in the case of R v Rowton10 and the precedent established in this case has not yet been overruled despite a great deal of criticism10a, although the Courts have a relaxed approach in this regard. In Rowton, the need to allow evidence establishing the good character of the defendant in criminal proceedings was said to have “grown from a desire to administer the law with mercy, as far as possible…”11 Moreover, in interpreting the kind of evidence that could be allowed, it was to be restricted to the witness’ general reputation and the individual opinion of the witness could not be allowed. However, the witness who is testifying on character can be cross examined on certain matters pertaining to that evidence, in establishing the general good character of the witness12. Fidel has submitted that he is of good character, as a result of which a Judge would need to direct the jury as to his good character in the past, especially since he has had only one conviction in the past. However, if he is to be entitled to a direction from the Court, he must tender such evidence that pertains to his general reputation and the direction of the Judge will depend upon the purpose for which such evidence is submitted. 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. This was also the case in Vye16 where it was held that where a defendant had provided testimony, there was to be a propensity direction, i.e, an entitlement to a direction from the Judge about general good character which adds to the presumption of innocence. As a result of this case, the need for the Judge to provide a direction has come to be referred to as the first limb of a character direction, where a Judge is required to direct the Jury about the relevance of the general good character of the defendant to establishing his credibility in the proceedings. Therefore, the precedent in this case may well apply in the case of Fidel, since he has no previous convictions, as a result of which he may be entitled to a good character direction by the Judge who may need to direct the jury on his good character in the past. However, the question of whether or not a good character direction is given is largely dependent upon judicial discretion17 and will vary in individual cases. There is a residual discretion the Judge has to resist giving a good character direction where evidence of the defendant’s prior conduct exists, despite the lack of convictions, such that his claim of good character becomes spurious18. It is more difficult to ensure that a direction is given where there are previous convictions. For example in the case of Clarius,19 the defendant had one previous conviction for shoplifting and the Judge did not provide a good character direction on propensity. However, this was not held to be valid because the defendant’s claim to be of good character was not spurious and dismissable. Therefore, on the basis of the above submissions, it may be concluded that if evidence does not exist of Fidel’s proclivity to other kinds of criminal behavior or offences, then he may be able to sustain his claim of good character. In such a case, a Judge would be obliged to give a good character direction, since he cannot exercise residual discretion. Bibliography * Berrada (1989) 91 Cr. App. R 131 * R v Clarius (2000) Court of Appeal (Criminal Division) Transcript by Smith Bernal dated July 10, 2000. [online] available through Lexis Nexis. * Cross, R and Tapper, C, 1995 “On Evidence” (8th ed.) London: Butterworths. * R v Funderburk [1990] 2 All ER 482 * Redgrave (1981) 74 Cr. App. R 10 * R v H (1994) Crim LR 205 * R v Timson and Hales (1993) CLR 58, CA * R v O’Shea (1993) Crim LR 951, CA * R v Rowton (1865) LJMC 57, CCR. * Vye (1993) 3 All ER 241 * Winfield [1939] 4 All ER 164 Read More