Justice Criminal Evidence - Assignment Example

Law of Evidence The Police and Criminal Evidence Act of 19841 s that if a confession is obtained by “oppression..[it] will not be admitted…” Hence, oppression as laid out under this Section of the Act was much more broad based and confessions improperly obtained could be excluded2. The dictionary definition was laid out in the case of R v Fulling where it was defined as “the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, inferiors,….the imposition of unreasonable or unjust burdens”3 Lord Lane refused to follow the previous authorities and exclude the confession, because the confession obtained in the Fulling case did not involve any deliberate impropriety on the part of the officer who obtained it. No intimidation was used, there was no bullying or hectoring, hence they could not be held to be oppressive. However, Dennis points out that the danger arising from the exclusions inherent in the definition of oppression in Fulling as follows: “The effect is that both the English and Australian Acts allow for the possibility of other, undefined, cases to fall within the prohibition on the use of oppression.”4 Similarly in the case of Lam Chi-ming v the Queen, Lord Griffiths also explained the rationale for Section 76(2) in rejecting improperly obtained confessions, not only due to “possible unreliability, but upon the principle that a man cannot be compelled to incriminate himself.”5 Exclusion of such confessions is also mandated by civilized society that requires the police to behave properly with those in their custody. (b) The general position in law has been that even when a confession is made voluntarily, the Courts have a residual discretion to exclude it in order to preserve the fairness of the trial. Where the question of inducement by an authority to elicit the confession by creating fear or hope of advantage arises, it must necessarily be excluded. However, Lord Lane articulates the view that an involuntary confession cannot be withheld as evidence, merely on the grounds of what the police had done or omitted to do.6 The difficulty of establishing implied inducement is his criterion for the statement that every voluntary statement will become inadmissible if the motives of authorities are to be assessed, because the police are interested in solving cases. However, Lord’s Lane’s statement cannot be applied indiscriminately, because of the limitations identified above as the general position in law. 2. Counsel may not be allowed to cross examine Julie about her previous complaint against Jack which was dropped. Since Julie is the complainant, her prior character will not be considered a fact at issue unless she is being defamed.7 It is the Plaintiff who adduces evidence rather than the defendant and 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.8 It will not be admissible unless it is relevant to the issue before the Court9 because evidence on prior misconduct could be prejudicial to the interests of the parties. Therefore when evidence cannot be admitted, it is unlikely that Jack’s attorney will be able to cross examine Julie. (b) It is possible that Julie’s father may be allowed to testify in Court, if it has allowed evidence about Julie’s prior false complaint to be admitted in Court. Although Julie’s father’s statement would fall under the category of hearsay evidence, nevertheless when a witness (Julie) is giving testimony, she can be questioned about statements made outside court on a previous occasion, to demonstrate inconsistency in statements. Under the changes in hearsay provisions that have recently been made10 such statements are evidence of the facts they contain, so Julie’s father may be allowed in court to confirm the evidentiary fact in Julie’s prior statement that she had invented the whole story. 3(a). A child witness under the age of 16 would automatically qualify as a vulnerable witness11 especially when complaining about a sexual offence.12 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.13 (b) The special provision in Section 21 specifies that any witness that qualifies as a child as per section 16 and is under the age of 16, would automatically be entitled to special protection, especially if the witness is appearing in Court in relation to a sexual offence or kidnapping. Therefore, the Court can allow a Special measures Direction so that the child can safely give evidence without being exposed in the open Court. However, this primary rule may be limited by the availability of the special measure and cannot be implemented if unavailable14. The Court may also disallow this provision if its application will not maximize the quality of evidence in any way removed from normal testimony procedures in Court.15 (c) “The jury is warned that just because the special measure of an intermediary interrogator in the person of this Court appointed lawyer has been made available to the witness, this does not justify a prejudicial conclusion that the defendant Paulo is dangerous.”16 4. The evidence about Jacob’s previous offences and convictions is likely to fall under the evidence of character which cannot be adduced17 so it may be inadmissible since it is difficult for a person to establish a uniform propriety of conduct throughout his life18. This is the argument that the defendants are likely to offer against introducing evidence about Jacob’s prior confessions. They may also argue that evidence about Jacob being encouraged by his parents is likely to be irrelevant to the material facts of the case and that it should therefore be excluded. As opposed to this, the Prosecution is likely to press for the inclusion of such evidence. They are likely to argue that such evidence is probative to the issue of the crime for which Jacob is being accused. The evidence in question confirms Jacob’s prior misconduct19 and may therefore be admissible. They are likely to argue that such evidence is important and relevant with substantial probative value because of the relevance of such disposition to the facts of the case20. They may also argue that evidence about Jacob and his parents may be permissible for admission, because it is in the nature of important explanatory evidence.21 (b) Further information would be necessary in arriving at a decision as to whether or not such evidence can be admitted. In order to avoid prejudicing the interests of Jacob, it is important that the probative value of the evidence be assessed. In order to do that, evidence can be requested from the Plaintiffs on Jacob’s former convictions, including the nature of the charges and the sentence, if nay, that was meted out. In addition, the testimony of Belle would also be necessary before any decisions could be made on whether evidence on Jacob’s past character is relevant to establish his guilt in relation to the circumstances of this particular case. I would seek Belle’s statement of examination in chief and cross examination before deciding whether it allows grounds for including evidence on prior character. (c) As a general rule, I would not admit such evidence, since the issue before consideration by the Court is in regard to a specific offence committed by Jacob against Belle. Including evidence of past character would be akin to prejudicing Jacob’s interests because he cannot be expected to show uniform propriety of conduct throughout his life, as pointed out in the case of Scott v Sampson. This could result in a compromising of the process of justice. References: * Allen, Trevor, 1992. “Implied assertions as hearsay.” New Law Journal, 142 (6566): 1194 * Dennis, Iain, 1996. “The admissibility of Confessions under Sections 84 and 85 of the Evidence Act 1995: An English Perspective.” Sydney Law Review, 18: 34 at pp 38 * Tapper, Colin, 1995. “The erosion of Boardman v DPP” New Law Journal, 145 (6708) : 1223 Cases cited: * Cornwell v Myskow (1987) 2 All ER 504 * Lam Chi-Ming v The Queen (1991) 2 AC 212 at 220 E-F * Makin v AG NSW (1894) AC 57 * R v MacPherson (1981) 147 CLR 512 * R v Fulling (1987) 2 All ER 65 * R v Rennie (1982) 1 All ER 385 * Scott v Sampson (1882) 8 QBD 491 at 503-505 * Secretary of State for trade and industry v Coulthard (1997) 1 BCLC 329 Legisation cited: * Criminal Justice Act of 2003 * Youth, Justice Criminal Evidence Act of 1999 * Police and Criminal Evidence Act 1984 Read More