PCLL Conversion Examination January 2012 Examiner s Comments Evidence

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1 PCLL Conversion Examination January 2012 Examiner s Comments Evidence Question 1 This question was approached badly by too many students who appear not to have understood the question to advise A, S and R. Many students failed to spot this was a question on the topic of character evidence and consequently answered the question with far too many irrelevancies including not separating out the three protagonists and answering under each head as asked for. For those students who clearly understood the central issue was s.54 CPO the question was answered well. Alex: alleges that it might be Stuart who had stolen the computers. This is a case of s.54(1)(f)(iii) CPO as Alex has given evidence against a co-d in the same proceedings, and Alex will lose his bad character shield. Alex has a previous conviction for criminal damage that is spent. Can this be adduced by Stuart? Technically, yes it can, but the Rehabilitation of Offenders Ordinance requires that the conviction should not be mentioned when spent unless justice cannot be done. Here I think the judge might deem the conviction inadmissible as it will not be required for justice to be done as it was a long time ago and for a completely different sort of offence. Alex also puts his own good character in issue by calling his Catholic priest -s.54(1)(f)(ii) CPO applies here. But given the above and considering cases such as Timpson [1993] it is unlikely that Alex's previous conviction will be adduced. He will essentially be regarded as a person of good character and he should also be able to get both limbs of the good character direction under the principles in Vye [1993] and Tang Siu Man [1998]. Stuart: The questions to Paul are an imputation on a prosecution witness -s.54(1)(f)(ii). But s.54 only applies to "a person charged and called as a witness" i.e. it only applies to Ds that give oral evidence at the trial If D's counsel attacks the character of P witnesses, but does not give evidence himself then he cannot be cross-examined on his bad character under s.54. Stuart does not have any previous convictions, but he has pleaded guilty to one of the counts on the indictment in this case. Is he still of good character? Contrast the approaches in Teasdale [1993] and Challenger [1994]. The case of Tang Siu Man [1998] would suggest that the judge should use his discretion to decide what direction to give the jury, the ultimate requirement that it must be fair and balanced. At the very best Stuart would get the propensity limb of the Vye direction as he has not given evidence. Richard: The issue here is whether Richard's comments about Paul are an imputation. An Imputation" can be any allegation of faults or vices, reputed or real e.g. witness is corrupt (R v 1

2 Wright [1910]) that the witness has committed a crime (R v Hudson [1912]), that the witness is lying (R v Jones [1923]), etc. Here I think that saying Paul would like to see him sacked implies that Paul is lying and I think this is accordingly an imputation: s.54(1)(f)(ii) CPO is engaged and P can cross-examine Richard on his previous convictions. Question 2 This was a question in 5 parts which I anticipated would be completed simply and competently with short answers. However, far too many students gave over-long and rambling answers which failed to get to the (simple) point in each section. Others clearly had no clue that Q 2(2) was a criminal prosecution or that fraud was a criminal offence. Too many students answered that this case was a matter for the civil courts! Others failed to understand that the reverse-burden was on the balance of probabilities. Otherwise it was generally answered well. 1. Normally P bears the legal burden, but in the case of a defence of insanity M'Naghten's Case [1843] establishes that where D assets that he is/was suffering from insanity it is D who has the legal burden to prove that fact. The standard of proof will be the balance of probabilities. When D bears the legal burden this is sometimes called a "reverse burden". 2. The ICAC will bear the burden of proof -Woolmington v DPP [1935]. The standard of proof will be beyond reasonable doubt as this is a criminal matter. 3. Presumptions shift the burden of proof to the other side to disprove the presumed fact. Here P would have the overall burden of proof, but by relying on the presumption of regularity D will be required to show that the lights were not operating as normal (Tingle Jacobs and Co v Kennedy [1964]). D will bear an evidential burden to rebut the presumption. In terms of the blackout, D might be trying to claim automatism -in this case D will bear an evidential burden to establish the defence and then P must disprove the existence of the defence beyond reasonable doubt. 4. This situation is similar to The Glendarroch [1894]. (Not many students will note this case) but they must set out how the burden shifts: P is essentially alleging that D was negligent in their packing of the goods and that this has caused the damage. The case held that it is for P to prove the terms of the contract and damage; D then proves that the exemption clause applies (i.e. no liability if damage caused by road conditions); but for P to then show that the proviso to the exemption clause applies (i.e. liable if D negligent). The standard of proof at each stage would be the balance of probabilities. 5. The Ordinance provides that Any person who without lawful authority etc." This phraseology comes under of s.94a CPO (Cap 221). It is not essential that students quote s. 94A for a pass mark, many will not (although those who do should be given high marks), but they must understand that where an offence provides an exception, the legal burden is on D if they wish to put themselves under that exception. So here D would have the legal burden to 2

3 prove that he did have lawful authority. The standard of proof would be on the balance of probabilities. Question 3 Again, I anticipated that this would be a fairly straightforward question and indeed the vast majority of students gave competent answers. Some of the briefest answers got the highest marks. Other, weaker answers were again too full of irrelevance or students appeared to have misunderstood the question. At this level, for student not to know that a judge must (at the very least) direct a jury on the burden and standard of proof is unacceptable. Students who described any number of obscure possible directions and failed to mention the basics were marked down hard. In a jury trial, once the judge has decided that there is sufficient evidence to go to the jury, all matters of fact are for the jury to decide, while all matters of law are for the judge. It is the judge s duty to give the jury a proper and complete direction on the law applicable and on the incidence of the burden of proof, and it is for the jury to accept this direction. The judge should sum up the evidence to the jury and may properly comment on the relative values of classes of testimony, and of the evidence given. The credibility of testimony is a matter for the jury. It is the judge s duty to ascertain the issues and so to determine what evidence is or is not relevant. Questions relating to the admissibility of evidence are questions of law and must be determined by the judge see Lewis v Marshall (1844) 7 Man & G 729 at 743. If such questions depend upon the determination of some preliminary question of fact, the judge may decide that question by himself after hearing any necessary evidence upon it (e.g. following a voir dire). This is so even though the decision of the preliminary question involves the determination by the judge of the same fact that the jury has ultimately to decide, but he may ask the jury to determine the fact. Upon this principle, for example, it is for the judge to decide whether an alleged confession is voluntary, and whether a witness sufficiently understands the nature of an oath or a child is otherwise competent to give evidence in criminal proceedings. Even when the objection is to evidence prima facie admissible, the judge should, before admitting it, allow evidence to be interposed to show its inadmissibility: Boyle v Wiseman (1855) 11 Exch 360, overruling Jones v Fort (1828) Mood & M 196; Bartlett v Smith (1843) 11 M & W 483 at 486; The State v Treanor [1924] 2 IR 193; A-G v O Leary [1926] IR 445. Before the evidence is left to the jury, the judge has to decide whether there is sufficient evidence to establish a prima facie case. He must consider whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests. If there is no evidence either the case will be withdrawn or the jury will be directed to return a verdict of not guilty, in a criminal trial where the defendant has been arraigned. Similarly it is for the judge to determine whether it is open to the jury to draw an 3

4 inference from facts proved, leaving it to the jury to say whether or not it does. If there is a conflict of evidence, it is the jury s province to decide which evidence it prefers to accept. Directions a Judge must give are: Explain the different function of judge and jury Burden of Proof Standard of Proof Directions a Judge may give depending on the circumstances o the case. This list is not exhaustive, but the most common directions that students have been told are: Circumstantial Evidence Similar Facts Corroboration/Evidence Requiring Caution Evidence of Children Defendant's Character - Good Defendant's Character - Bad Defendant's Confession Defendant's Evidence - Effect on Other Defendants Defendant's Lies to Police and Others Hostile witness Previous Inconsistent Statement Identification Previous Consistent Statement Expert Evidence Dishonesty and the Ghosh Direction Hearsay Evidence Drugs - Money found in Possession of Defendant/Evidence of Extravagant Life-style etc Delay Alibi Automatism Self-Defence Duress by Threats and Circumstances Diminished Responsibility (Murder) Provocation (Murder) Intoxication - Self-Induced or Voluntary Question 4 In my view this was one of the more testing questions on the paper and I anticipated it might prove difficult for some. In the event, having marked all the scripts, this question appeared to split student answers. Those who had revised and understood the implications of s.22 EO did well. Other clearly did not know about this particular statutory exception to the hearsay rule and did badly. There was no middle ground. 4

5 (a) The delivery book record should fall within s.22 Evidence Ordinance (Cap 8) - documentary records compiled by a person under a duty. All the various requirements appear to have been complied with. (b) Depending on how the computer print out was generated it may be admissible under s.22 or s.22a Evidence Ordinance (Cap 8). If there was a high level of human input then s.22 is appropriate, if the print out was created by an automated computer function then s.22a is better. Note that these two sections are mutually exclusive. A further possibility is that the print out is admissible under s.17a Evidence Ordinance (Cap 8) as a negative assertion to show that 5 computers were missing. (c) If the former girlfriend came to court then the statement would be admissible, but here she seems unwilling due to being in fear. Unfortunately there is no hearsay exception in criminal proceedings that covers this situation (apart from Admissions under s.65b CPO - but D is not going to agree to this) so if she does not attend court the evidence will be inadmissible. Exceptional students may add evidence by video link for a witness in fear under s.79b CPO (Cap 221). (d) Kay is allowed to assert that Randy has previous convictions and may well have stolen the computers himself. Normally, this would be deemed to be an attack on the character of a P witness. But as Randy is dead he will not be giving evidence for the P and hence it will not be an attack falling under s.54(1)(f)(ii). Kay will not lose his previous conviction (if he has any) shield. Kay may adduce the record of Randy's convictions as evidence that Randy committed the offences. (e) This may seem to be dying declaration situation, but the problem is that dying declarations can only be used in murder or manslaughter trials, which is not the case here. Nor is this a res gestae situation, so the evidence of Randy's statement in the ambulance would appear to be inadmissible. Question 5 I have little to say about this particular question as it was done well by the overwhelming majority of students. Some of the highest scores were achieved on this question and a clear majority of students were familiar and understood the relevant authorities. This is a question on voir dire evidence. The statement made by S is clearly a confession as in incriminates him in the offence charged. It could be said that it is a mixed statement as he claims that co-d was the mastermind and this could be argued to be partially exculpatory. If it is a mixed statement then the principles in Aziz [1996] 1 AC 41 apply. 5

6 The confession was made to a person in authority, defined as anyone who (may reasonably be supposed by the accused to have or who) has authority or control over the accused or over the proceedings or prosecution against him (Deokinanan v R [1969]) A police officer is clearly a person in authority so we must consider whether the confession was voluntary or not. Inducements? Defined in Ibrahim v The King [1914], where Lord Sumner stated that the statement would not be voluntary if it was caused by fear of prejudice or hope of reward excited or held out by anyone on authority". Further considered in DPP v Ping Lin [1976] - see Lord Hailsham's guidance. In this case the fact that the police told S that D had confessed and implicated S caused S to confess, but this is probably not an "inducement" as it does not really count as fear of prejudice or hope of reward. Oppression? Oppression means "words or conduct which tends to sap, and has sapped, the free will of the accused so that he speaks when otherwise he would have remained silent." R v Priestly (1965) 52 Cr App R 1. per Sachs JA. The failure to provide a solicitor is a serious matter, but is probably not enough by itself to engage the notion of oppressive behaviour by the police. Fraud? The police lied about Dave's confession and this directly caused S to confess. This might be a possible argument here and the confession may well be excluded on this basis - Ajodhav The State [1982]. I think a further approach is to rely on the judge's residual discretion see SJ v Lam Tat Ming [2000] 2 HKLRD 431 generally.. In criminal cases the judge has discretion to exclude evidence where a confession has been obtained unfairly focusing on how confession was obtained. It states that if the confession was made in circumstances where D's fundamental right to remain silent was undermined or effectively denied by his interrogators then the confession may be excluded because it would be unfair to the accused to use the confession. It does not matter whether the confession was voluntary or not. Substantial breaches of the 1992 Rules and Directions for the Questioning of Suspects may amount to unfairness although minor breaches may not (Lam Tat Ming). Here the failure to provide legal advice (unless the denial of a solicitor really was justified-r v Samuel [1988]) combined with the lie about Dave's confession could be deemed sufficient to warrant the exercise of the residual discretion. See R v May [1952] Per Lord Goddard: "The test of the admissibility of a statement is whether it is a voluntary statement. There are certain rules known as the Judges' Rules which are not rules of law but rules of practice drawn up for the guidance of police officers; and if a statement has been made in circumstances not in accordance with the rules, in law that statement is admissible if it is a voluntary statement, although in its discretion the court can always refuse to admit it if the court thinks there has been a breach of the rules." 6