THE COMMON LAW LIBRARY PHIPSON ON EVIDENCE FIFTEENTH EDITION

Transcription

1 THE COMMON LAW LIBRARY PHIPSON ON EVIDENCE FIFTEENTH EDITION -^ LONDON > SWEET & MAXWELL -;* j 2000

2 Preface Table of Cases Table of Statutes Table of Statutory Instruments Table of Civil Procedure Rules Table of Practice Directions PAGE vii xix ccxxxv cclxi cclxvii cclxxi 1. INTRODUCTORY M.N. Howard Q.C. 1. Introductory Definitions and Classification Inspection, Production, View, Comparison, Search Lex Fori Functions of Judge and Jury Law and Fact MATTERS OF WHICH EVIDENCE IS UNNECESSARY M.N. Howard Q.C. 1. Formal Admissions for Purposes of Trial Judicial Notice THE DEFINING OF THE ISSUES M.N. Howard Q.C. 1. Pleadings Variance and Amendment BURDEN AND STANDARD OF PROOF Charles Hollander Q. C. 1. The Distinction Between Burden and Standard of Proof The Burden of Proof Presumptions Standard of Proof: Criminal Cases Standard of Proof: Civil Cases ESTOPPELS Roderick Bagshaw 1. Introductory Legal Estoppels Equitable Estoppels RELEVANCE, ADMISSIBILITY AND WEIGHT; PREVIOUS AND SUB- SEQUENT EXISTENCE OF FACTS; THE BEST EVIDENCE RULE Roderick Bagshaw 1. Facts in Issue Facts Relevant to the Issue 6-03 xi

3 Xll 3. Facts Which Affect the Legal Reception or Weight of the Evidence Tendered Relevance and Admissibility Weight of Evidence Previous and Subsequent Existence of Facts; Course of Business The Best Evidence Rule Custom and Usage Standards of Comparison Acts and Documents Showing Ownership Treatment ATTENDANCE OF WITNESSES Charles Hollander Q. C. 1. Scope of this Chapter Attendance of Witnesses in Civil Cases Attendance of Witnesses in Criminal Cases Witnesses Within the United Kingdom Witnesses Out of the Jurisdiction Evidence in the Jurisdiction for Foreign Proceedings Evidence from Witnesses Out of the Jurisdiction or for Proceedings Abroad: Criminal Cases COMPETENCE AND COMPELLABILITY, OATH AND AFFIR- MATION Roderick Bagshaw 1. Competence Compellability Competence and Compellability in Criminal Proceedings of Defendants and their Spouses Oath and Affirmation EVIDENCE TAKEN OR SERVED BEFORE TRIAL; DUTY TO DISCLOSE EVIDENCE Charles Hollander Q.C. & His Honour Judge Peter Crane 1. Civil Cases Criminal Cases RULES OF EVIDENCE RELATING TO THE COURSE OF A TRIAL: GENERAL Charles Hollander Q.C. & His Honour Judge Peter Crane 1. Civil Criminal RULES OF EVIDENCE RELATING TO THE COURSE OF A TRIAL: EXAMINATION OF WITNESSES Charles Hollander Q.C. & His Honour Judge Peter Crane 1. Civil Criminal 11-07

4 Xlll 12. EVIDENCE TAKEN AFTER TRIAL M. N. Howard Q. C. 1. Civil Cases Criminal Cases CORROBORATION AND SUPPORTING EVIDENCE Roderick Bagshaw 1. General Situations where Supporting Evidence is Required by Statute Situations where a Warning may be Necessary What Constitutes Supporting Evidence? IDENTIFICATION Roderick Bagshaw 1. Personal Characteristics, Etc Visual Identification Other Means of Identification PHYSICAL CONDITIONS, STATES OF MIND AND EMOTIONS Roderick Bagshaw 1. Introduction Out of Court Statements Proof of States of Mind and Body Permissible Inferences from States of Mind and Body CHARACTER: GENERAL AND INTRODUCTORY Peter Mirfield 1. Introduction Types of Evidential Relevance Direct Issue Cases CHARACTER OF THE ACCUSED (OTHER THAN UNDER CROSS- EXAMINATION) Peter Mirfield 1. Good Character of the Accused Bad Character of the Accused Bad Character of the Co-Accused CROSS-EXAMINATION OF THE ACCUSED AS TO HIS CHARACTER Peter Mirfield 1. Introduction The Structure of the Cross-Examination Rules The General Prohibition The Exception under Section 1(3)(I) The Exception under the First Part of Section 1(3)(II) TheExceptionundertheSecondPartofSectionl(3)(II) 18^6 7. The Exception under Section 1(3)(III) Parasitic Cross-Examination under Section 1(3) Spent Convictions 18-79

5 XW 19. CHARACTER OF PERSONS OTHER THAN THE ACCUSED Peter Mirfield 1. Evidence of Good Character Evidence of Bad Character as Relevant to the Issue Evidence of Bad Character as Relevant to Credibility Special Protection from Bad Character Evidence (Rape and Allied Offences) PRIVILEGE Charles Hollander Q. C. 1. The Nature of the Privilege Facets of Legal Advice Privilege Facets of Litigation Privilege Who Can Claim Privilege: Principal and Agent Privilege under the Civil Procedure Rules Privilege in Part of a Document 20^16 7. Duration of Privilege Copies PRIVILEGE: OTHER FORMS OF PRIVILEGE Charles Hollander Q.C. 1. Joint Privilege Common Interest Privilege Without Prejudice Privilege Privilege Against Self-Incrimination Loss AND ABUSE OF PRIVILEGE Charles Hollander Q.C. 1. Waiver of Privilege Waiver of Privilege: Waiver Extending to Collateral or Associated Documents Implied Waiver of Privilege Waiver of Privilege: Inadvertent Disclosure Loss of Privilege through Fraud THE IMPLIED UNDERTAKING Charles Hollander Q.C. 1. The Undertaking FACTS EXCLUDED BY PUBLIC POLICY Charles Hollander Q.C. & His Honour Judge Peter Crane 1. Exclusion of Evidence by Public Policy Categories of Documents which may be Subject to Immunity Exclusion of Evidence Relevant to the Adjudicative Process Telephone Intercepts 24-33

6 XV 25. THE RULE AGAINST HEARSAY M. N. Howard Q.C. 1. The Rule at Common Law Exceptions to the Rule Reform HEARSAY IN CIVIL PROCEEDINGS Charles Hollander Q. C. 1. Introduction Abolition of the Hearsay Rule: Section Safeguards: Sections Sections Records: Sections Civil Procedure Rules Applicable to Hearsay Evidence Hearsay Evidence: The Approach of the Courts HEARSAY IN CRIMINAL PROCEEDINGS His Honour Judge Peter Crane 1. General Criminal Justice Act 1967, s.9 and Criminal Justice Act 1988, ss.23 to Mechanical Instruments and Readings; Computers Evidence at Former Trials Other Matters ADMISSIONS Katharine Grevling 1. Admissions Generally Formal Admissions for Purposes of Trial Principles Common to Admissions in Civil Cases and to Confessions in Criminal Cases Informal Admissions Client, Solicitor, Counsel and Witnesses AGENCY, PARTNERSHIP, COMPANIES, COMMON PURPOSE, ACTING IN A CAPACITY Katharine Grevling 1. Agency Partners, Trustees, Executors Corporations Acts and Declarations in Pursuance of a Common Purpose Acting in a Capacity, or Under Documents STATEMENTS IN THE PRESENCE, AND DOCUMENTS IN THE POSSESSION, OF A PARTY Katharine Grevling 1. Principle Statements Documents 30-10

7 XVI 31. CONFESSIONS Katharine Grevling 32. RESTRICTIONS ON THE RIGHT TO SILENCE INTRODUCTION Katharine Grevling 1. The Nature of the Right The Nature of Silence Pre-Trial Silence Failure to Account for Objects, Substances, Marks or Presence at the Scene The Accused Who Fails to Give Evidence at Trial Scope of Section "Proper" Inferences of Guilt JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE His Honour Judge Peter Crane 1. Criminal Proceedings Civil Proceedings RES GESTAE His Honour Judge Peter Crane 1. Principle of Res Gestae Relevant Facts as Part of the Res Gestae Declarations as Part of Res Gestae Received as Original Evidence Spontaneous Statements as Exception to the Hearsay Rule COMMON LAW EXCEPTIONS TO THE RULE AGAINST HEARSAY: STATEMENTS BY DECEASED PERSONS 1. General Declarations against Interest Declarations in the Course of Duty Declarations as to Public or General Rights Declarations as to Pedigree 35^4 6. Dying Declarations in Cases of Homicide Declarations by Testators as to their Wills COMMON LAW EXCEPTIONS TO THE RULE AGAINST HEARSAY: STATEMENTS IN PUBLIC OR OFFICE DOCUMENTS, CORPOR- ATION BOOKS AND PUBLISHED WORKS; ANCIENT DOCUMENTS AS EVIDENCE OF ANCIENT POSSESSION 1. Statutes and State Papers Government Gazettes Public Registers and Records Public Inquisitions, Surveys, Assessments and Reports 36-27

8 XVli 5. Official Certificates, Letters and Returns Corporation, Company and Banker's Books Published Histories, Maps, Dictionaries, Tables, etc Ancient Documents as Evidence of Ancient Possession OPINION AND EXPERT EVIDENCE M. N. Howard Q. C. 1. Principle at Common Law Exceptions JUDGMENTS Roderick Bagshaw 1. Judgments as Evidence of their Existence, Contents and Legal Effect Judgments as Giving Rise to Estoppels in Subsequent Proceedings Judgments as Evidence Against Strangers PROBATES, VERDICTS, AWARDS, REPORTS, INQUISITIONS, PLEAD- INGS, WRITS, AND DEPOSITIONS IN FORMER TRIALS M. N. Howard Q.C. 1. Probates and Letters of Administration Verdicts Awards Reports of Judicial Officers Inquisitions Pleadings and Writs Depositions in Former Trials AUTHORSHIP AND EXECUTION: ATTESTATION: ANCIENT DOCUMENTS: CONNECTED AND INCORPORATED DOCUMENTS: ALTERATIONS AND BLANKS: REGISTRATION, STAMPS, ETC. 1. Genuineness, Authorship and Execution Connected Documents: Incorporation: Reference Alterations: Erasures Blanks Registration: Enrolment Stamps OF DOCUMENTS GENERALLY: PRIMARY AND SECOND- ARY EVIDENCE, OF PARTICULAR DOCUMENTS: PUBLIC, JUDICIAL AND PRIVATE 1. Primary Evidence, Forms Of Secondary Evidence, Forms Of Public Documents Judicial Documents Private Documents, when Registered, Enrolled 41-77

9 XVU1 42. EXCLUSION OF EXTRINSIC EVIDENCE IN SUBSTITUTION OF, TO CONTRADICT, VARY, OR ADD TO DOCUMENTS 1. Evidence in Substitution Exceptions Evidence to Contradict, Vary or Substitute Exceptions to the Rule ADMISSION OF EXTRINSIC EVIDENCE IN AID OF INTERPRETATION AND TO REBUT PRESUMPTIONS 1. Interpretation Rules as to Extrinsic Evidence Rule I Rule II Rule III 43^7 Rule IV Rule V Rule VI Admission of Extrinsic Evidence to Rebut Presumptions Affecting Documents APPENDIX CRIMINAL PROCEDURE ACT CRIMINAL EVIDENCE ACT 1898, s.l CIVIL EVIDENCE ACT 1968, Pt II CIVIL EVIDENCE ACT SEXUAL OFFENCES (AMENDMENT) ACT ADMINISTRATION OF JUSTICE ACT 1982, Pt IV POLICE AND CRIMINAL EVIDENCE ACT 1984, Pts II, V, VI, VIII, and Sched COMPANIES ACT 1985, ss.36, 36A CRIMINAL JUSTICE ACT 1988, Pts II, III, and Sched LAW OF PROPERTY (MISCELLANEOUS PROVISIONS) ACT 1989, s.l CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994, Pt III CIVIL EVIDENCE ACT CRIMINAL PROCEDURES AND INVESTIGATIONS ACT 1996, Pts I, II CIVIL PROCEDURE RULES 1998, Pts 22,32,33,34, 35, YOUTH AND CRIMINAL EVIDENCE ACT 1999, Pt II, Sched PAGE Index 1427