CROSS AND TAPPER ON EVIDENCE

Transcription

1 CROSS AND TAPPER ON EVIDENCE Twelfth edition COLIN TAPPER, MA, BCL Emeritus Professor of Law, University of Oxford OXFORD UNIVERSITY PRESS

2 CONTENTS Preface to the 12th edition v Extractfrom the preface to thefirstedition vii Guide to the Online Resource Centre viii Table of Cases xxiii Table of Statutes cxxvii I. INTRODUCTION 1 Section 1 The development of the law of evidence 1 Section 2 Range of the law of evidence 5 Proceedings in courts 6 Different types of jurisdiction 6 Different types of court 9 Different stages of proceedings 10 Proceedings in other tribunals 21 Section 3 Purposes and categories of judicial evidence 29 Objects of proof 29 Facts in issue 29 Facts as evidence of other facts: circumstantial evidence 30 Examples of circumstantial evidence 31 Means of proof 53 Testimony 53 Hearsay 54 Documents 55 Things or real evidence 56 Section 4 Relevance, admissibility, and weight of evidence 64 The admissibility of relevant evidence 65 Definition of'relevance' 65 Exceptions 66 Multiple relevance and admissibility 67 The inadmissibility of irrelevant, and insufficiently relevant, evidence 68 Illustrations 68 Apparent exceptions 70 Relevance and admissibility 72 Stephen s terminology 73 The demand for more basic concepts 73 Admissibility and weight of evidence 74

3 XII CONTENTS II. MATTERS NOT REQUIRING PROOF AND JUDICIAL FINDINGS AS EVIDENCE 75 Section 1 Judicial notice 76 Facts judicially noticed without inquiry 76 Facts judicially noticed after inquiry 77 Statutory provisions 79 Theoretical questions 80 Judicial notice and the reception of evidence 80 Rationale 84 Tacit applications 84 Section 2 Formal admissions 84 Section 3 Estoppel 85 Conclusive effect of judgments on the whole world judgments in rent 86 Effect of judgments on parties to civil cases 87 Cause of action estoppel 87 Issue estoppel 92 Pleading 97 Effect of judgments on parties to criminal cases 98 Double jeopardy: autrefois acquit and autrefois convict 98 Exceptions 99 Issue estoppel in criminal cases and abuse of process 102 Section 4 Judicial findings as evidence of the facts upon which they were based 109 The Civil Evidence Act 1968, ss Previous convictions in subsequent civil proceedings 110 Findings of adultery and paternity 112 Previous convictions in criminal cases 113 Acquittals 116 Other findings 117 Judicial findings 117 Inquisitions 118 III. BURDENS AND PROOF 119 Section 1 Nature of the burden 120 The two principal senses of burden 121 Persuasive burden 121 Evidential burden 122 Illustrations of confusion 123 Other senses and shifting of burden 124 The tactical burden 126 The ultimate burden 127 Section 2 Allocation of the burden 128 Unconditional allocation at common law 128 Evidential burden 128 Persuasive burden 130

4 CONTENTS Xill The terminology of presumption 131 Conditional allocation at common law: presumptions 133 Allocation by statutory provision 136 Explicit allocation by statutory provision 136 Implicit allocation by statutory provision 138 Exceptions and provisos 139 Facts peculiarly within the knowledge of the accused 140 General statutory provision 141 Later developments 142 Impact of Human Rights Act Extent 144 Procedure 145 Evidential burden 145 Persuasive burden 146 Relevant factors 146 Conclusion 150 The interpretation of agreements affecting the burden of proof 150 Perils of the sea The Glendarroch 150 Insurance exceptions 151 Section 3 Discharge of the burden 151 Discharge of evidential burden 151 Discharge of persuasive burden 154 IV. THE FUNCTIONS OF THE JUDGE AND JURY 173 Section 1 The general rule 174 Some special cases 174 Construction 174 Defamation 175 Exceptions 175 Reasonableness 175 Facts affecting the admissibility of evidence 176 Section 2 Judicial control of the jury 185 Withdrawal of an issue from the jury 185 Civil cases tried by a judge alone 188 Civil cases tried with a jury 189 Criminal cases tried with a jury 190 Magistrates 191 Discretion to exclude evidence 191 Nature of the discretion 192 Discretion to exclude relevant evidence in criminal proceedings 196 Discretion to exclude relevant evidence in civil proceedings 212 The summing-up 215 Appeals 219 Criminal cases 219 Civil cases 221

5 xiv CONTENTS V. WITNESSES 223 Section 1 Standard case 223 Historical overview 223 Oaths 224 Procedure 225 Section 2 Special categories 234 Children 234 Compellability 235 Competence 236 Pre-trial procedure 237 Trial 241 Supporting evidence 243 Direction 244 Otherwise incapacitated witnesses 245 Competence 245 Hearsay 246 Direction 246 Spouses and others 247 Competence 247 Compellability 248 Application to spouse of co-accused 251 Ex-spouses 252 Other relationships 252 Offenders 253 Competence of the accused 253 Supporting evidence 256 Complainants of sexual offences 257 Testimony 258 Supporting evidence 258 Other witnesses and special situations 260 Statutory provision 260 Claims against the estates of deceased persons 262 The sovereign and diplomats 262 Experts 262 Bankers 263 Other possible cases 263 Section 3 The nature of supporting evidence 264 Support from the source requiring it 265 Support from the object against whom it is required 265 Admission of defendant or accused 266 Lies of defendant or accused 266 Failure to adduce evidence 268 Silence when charged 269 Failure to provide a sample of real evidence 270

6 CONTENTS XV Conduct on other occasions 271 Functions of judge and jury 271 VI. THE COURSE OF EVIDENCE 272 Section 1 Miscellaneous procedural matters 272 Evidence before trial 272 Civil cases 273 Criminal cases 280 The right to begin 289 The advocates' speeches 290 The calling of witnesses and the role of the judge 291 Section 2 Examination in chief 294 Leading questions 295 Refreshing memory 296 Out of court 296 In court 297 Previous consistent statements 299 Complaints 301 Previous consistent statements admitted to rebut suggestion of fabrication 303 Identification 305 Statements on arrest 305 Statements validated by scientific means 306 Unfavourable and hostile witnesses 307 The prohibition against impeaching a party's own witness 308 Unfavourable witnesses 309 Hostile witnesses 309 Statutory provision 311 Section 3 Cross-examination and re-examination 313 Previous inconsistent statements 317 Criminal Procedure Act 1865, s Criminal Procedure Act 1865, s Cross-examination on documents generally 319 Finality of answers to collateral questions 320 The general rule 320 Exceptions to the general rule 322 Re-examination 322 VII. CHARACTER IN GENERAL 324 Section 1 The character of parties 325 Civil proceedings 325 Good character 326 Bad character 326

7 xvi CONTENTS Criminal proceedings 329 Prosecutor 329 Accused 339 Co-accused 348 Section 2 The character of witnesses 352 Character of party's own witness 352 Civil proceedings 352 Criminal proceedings 354 Character of opponent's witness 355 Convictions 356 Discreditable acts 358 Bias 364 Corruption 365 Lack of veracity 366 Section 3 The character of third parties 369 Civil proceedings 369 Criminal proceedings 370 VIII. BAD CHARACTER OF THE ACCUSED 371 Section 1 Origins of the modern law 371 Nature of the problem 371 Attempts at reform 373 Common law 373 Statutory provision 374 Proposals for legislative reform 374 Dissatisfaction 376 Scope 377 Test 378 Procedure 378 Discretion 379 Consequences 380 Design 380 Section 2 Structure of the modern law 381 Framework 382 Concepts 383 Procedure 386 Leave and notice 387 Proof of bad character 388 Protection of the accused 392 Contamination 393 Unfairness 394 Direction 396 Appeal and review 397 Section 3 Gateways 400 Agreement of the parties 400 Choice of the defendant 400

8 CONTENTS Important explanatory evidence Important issue between defendant and prosecution Issue Credibility Section 4 Other statutory provision Section 5 Appraisal Consolidation Clarification Simplicity Improvement Xvii IX. PRIVILEGE Section 1 The privilege against self-incrimination Scope of the rule Range of application Range of incrimination Range of effects Procedure Statutory provision Section 2 Legal professional privilege Legal advice privilege Rule of evidence Legal adviser Communication Confidentiality and waiver Legal advice in a relevant legal context Privilege of client Secondary evidence Litigation privilege The legal adviser's own work Communications with third parties Communications with opponent Exceptions Communications to facilitate crime or fraud Information tending to establish innocence Disputes between clients and legal advisers Statutory exclusion The claims of other relationships Priest and penitent Physician and patient Conclusions Identity of informant Section 3 Statements made without prejudice Scope Effect Section 4 Without-prejudice negotiations between estranged spouses

9 xviii CONTENTS X. PUBLIC POLICY Section 1 Matters of public interest Vital interests of state Reports of proceedings in parliament Local government matters Police materials Civil proceedings Criminal proceedings Confidential matters Section 2 Miscellaneous matters connected with previous litigation Evidence of judges Evidence of arbitrators Evidence of mediators Evidence of jurors Evidence of advocates Section 3 Improperly obtained evidence Facts discovered in consequence of inadmissible confessions Evidence procured by improper means Improper searches Perpetration of illegal acts Improper interception or recording of communications Deception Conclusions XL OPINION Section 1 Rationale of the rule Statement of the rule Nature of opinion Reasons for excluding evidence of opinion Relation to the hearsay rule Section 2 Operation of the rule Lack of expertise Unnecessary expertise Ultimate issue Procedure Section 3 Exceptions to the rule Expert opinion Non-expert opinion Section 4 Reform of the rule XII. HEARSAY IN GENERAL Section 1 The nature of the rule Statement Rationale Development

10 CONTENTS Reform of the rule Strategic choices Reform in civil proceedings Reform in criminal proceedings Reform elsewhere Section 2 The scope of the rule Statements as facts Res gestae statements Statements relating to a relevant event Statements accompanying a relevant act Statements of a relevant physical sensation or mental state Previous statements by testifying witnesses Previous inconsistent statements Previous consistent statements Admissions Exculpatory third-party admissions Vicarious admissions xix XIII. HEARSAY IN CIVIL PROCEEDINGS Section 1 The Civil Evidence Act 1995 Admissibility Means of proof Section 2 Other provisions Public documents Published works Public documents Records Reputation Pedigree Public or general rights Children Company litigation Affidavits Inquests XIV. HEARSAY IN CRIMINAL PROCEEDINGS 602 Section 1 The general position under the Criminal Justice Act Policy 603 Definition 604 General exception 606 Conditions 606 Means of proof 610 Business documents 610 Previous statements of witnesses 614

11 CONTENTS Discretion Authentication Common law exceptions Public information Reputation Res gestae Admissions Expertise Statutory exceptions Bankers' Books Evidence Act 1879 Criminal Justice Act 1967, s 9 Weight European Convention on Human Rights Section 2 Confessions, silence, and police questioning Confessions Development Rationale Police and Criminal Evidence Act 1984 Conditions Effect Silence Section 34 of the Criminal Justice and Public Order Act 1994 Interviews Nature of silence Propriety of silence Form of direction Human rights Questioning suspects Development Operation Special cases XV. DOCUMENTARY EVIDENCE Section 1 Proof of the contents of a document Proof of statements in documents Proof of business or public records The Civil Procedure Rules Public documents Bankers' books Section 2 Proof of the execution of private documents Proof of handwriting Testimonial evidence Opinion Comparison

12 CONTENTS XXI Proof of attestation 677 Wills 677 Other attested documents 678 Presumptions relating to documents 678 Electronic signature 679 Section 3 Admissibility of extrinsic evidence 679 The conclusiveness of a document as evidence of the terms of the transaction it embodies 680 Statement and illustrations of the rule 680 Exceptions to, and cases falling outside, the rule 682 Extrinsic evidence in aid of interpretation 686 Standards of interpretation 686 Contracts 687 Wills 689 XVI. PROOF OF FREQUENTLY RECURRING MATTERS 691 Section 1 Foreign law 691 Judicial notice and previous decisions 692 Other statutory provisions 693 Expert witness 694 Section 2 Evidence of identity 695 Direct evidence 696 Special problems 696 Legal reaction 698 Different procedures for identification 700 Procedure 711 Circumstantial evidence of identity 715 Presumptive evidence of identity 715 Section 3 Birth, age, death, marriage, and legitimacy 716 Birth 716 Age 716 Direct evidence 716 Hearsay 717 Death 717 Marriage 717 Legitimacy 718 Section 4 Judgments and convictions 718 Civil cases 719 Criminal cases 719 Index 721