Evidence case law crib sheet

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| Case | Issue | Proposition=


Chandrasekera vr1937

Whether conduct can amount to hearsay evidence | Insofar as the conduct constitutes a 'verbal statement', it must be considered hearsay=

Dppvboardman 1975

Whether multiple allegations of misconduct were cross-admissible against multiple indictments under the 'similar fact' principle | Yes, provided that the probative value of such evidence outweighed its prejudicial effect=


Whether mutliple allegations required conform to the 'striking similarity' principles in order to be cross-admissible between indictments | No, provided that on balance the probative value exceeded the prejudicial effect of this evidence=

Hoskyn vmpc1979

Whether wife acompellable witness against husband | No, despite the general principle that a CompetentWitness is compellable=

Jones vmetcalfe 1967

Whether registration number dictated by witness to road accident could be used to identify the vehicle during trial | Reluctantly, no; the witness did not verify the number dictated, so could not refresh his memory from it; the police officer could not report it as it was hearsay=

Khan vunited kingdom 1998

Whether using covertly-obtained tape recordings as evidence amounts to a breach of Art. 6 | No, it is for the national courts to determine what sort of evidence is admissible (but see Teixeira de Castro)=

Makin vagfor new south wales 1894

Whether evidence of dead bodies in defendants' garden was admissible to show that the defendant had a disposition to commit the murder charged | Yes -- an issue relevant to the case was not to be excluded simply because it showed a criminal past | |[[myers v DPP 1965=

Whether reliable evidence in a document can amount to hearsay | Yes, according to established principle s even perfectly trustworthy documentary evidence if hearsay if offered to prove its contents=

Owen vedwards 1983

Whether defence could cross-examine police witness on the contents of his notebook | Yes, but if the cross-examination was extensive the whole notebook would be put in evidence=

Rex v Acaster (1912) | Whether wife should warned of right not to testify against husband | Yes -- non-compellable witness should be warned beforere taking the oath=

R v a2001

Whether exclusion of evidence of previous sexual history under s.41 of the YJCEA1999 could amount to a breach of Art. 6 | In principle, yes; trial judges should make use of their powers under s.3 of the HRA1998 to read down the provisions of s.41=

R v absalam 1989

| For confession to be excluded under s.78 PACE, breach of Codes must be substantial and significant=

R v alladice 1988

Whether confession should be excluded if made before legal advice | In general yes, in this case no -- the defendant was a seasoned crook and well aware of his rights=

R v argent 1997

| In deciding whehter s.34 inferences to be drawn, 'reasonable' must be interpreted with respect to the defendant and the circumstances=

R v andrews 1978]] || House of lords approved direction in Ratten| | [[R v aziz 1995

Whethervye direction must always be given if the defendant has no convictions | No, not if to do so would be an affront to common sense=

R v bernadotti 1869

Whether a dying declaration was admissible if the victim died some time after the injury | Yes, so long as the victim harboured no hope of recovery=

R v bishop 1975

Whether an accusation of homosexuality could amount to an imputation against a witness's character in a criminal trial | Yes (at least in 1975)=

R v blastland 1986

Whether D should be allowed to adduce evidence that another person had unusually detailed knowledge of the murder alleged to be committed by D | Even when evidence escapes exclusion on the basis of hearsay, it must still be logically relevant=

R v bowden 1999

| s.34 CJPOA encroaches on a fundamental right and should not be construed more widely that the statutory language requires; indicating reasons for silence on lawyer's advice may waive lawyer-client privilege=

R v bryce 1992

Whether recording of conversation between suspect and undercover policeman ought to be excluded under s.78 | In this case yes, as the conversation was about a key point in issue in the case, and should have been conducted under caution=

R v bunge and peg 1996

|lucas direction should be given where (i) prosection alleges that defendant lied about his alibi; (ii) where it is alleged that the defendant lied about a matter which corroborates some other evidence; (iii) where the prosecution are inviting the jury to consider the defendant's lies as implying his guilt; (iv) when there is a real risk that the jury might make this inference, even without encouragement=

R v butterwasser 1940

whether by attacking the character of prosecution witnesses the defendant was putting his good character in issue | No -- their bad character is not his good character (the CJA_2003 will overturn this rule of law=

R v chalkley 1998

Whether covert evidence obtained by trespass and in breach of Art. 9 of the ECHR could be excluded under s.78 | No -- the discretion under s.78 does not significantly expand the common-law discretion to exclude relevant evidence=

R v canale 1990

Whether police failure to record interviews allows confession to be excluded under s.76(2) | Yes -- this is a flagrant and cynical breach of the Codes of Practice=

R v clifton 1986

|turnbull direction should expose weaknesses in the prosecution's identification evidence=

R v cook 1982

Whether photofit picture admissible when tendered by witness making identification during oral testimony | Yes; photofits (and photographs) are a class of evidence apart, and not subject to the [[rule against narrative=

| [[R v da silver 1999

Whether witness could refer to a non-contemporaneous note while giving evidence | Yes, provided that witness's inability to recall was due to lapse of time, and he had made the note nearer the events (but see ex parte B)=

R v derby magistrates ex parte b1995

|lawyer client privilege is absolute, and cannot be overriden even when upholding it is unjust=

R v downey 1995

Similar fact evidence of identification on different counts could be applied cumulatively (despite McGranaghan) when the offences are tightly interwoven=

R v duncan 1981]] || Where amixed statement is admitted, the judge has a discretion to warn the jury that the inculpatory elements have more weight=

R v edwards 1975

Whether burden of proving possession of a driving licence lay on the defendant driver | Yes, even though this amounted to a reversed burden of proof -- possession would not be difficult to prove, and it was very much in the interest of society that offenders be prosecuted=

R v flint 2005

Whether pornographic photos and videos made by the complainant in a sexual abuse trial were to be excluded under s.41 of the YJCEA1999 | Having decided that the interest of justice required questioning the complainant on her previous sexual behaviour, it was 'artificial' to exclude the photographic evidence=

R v forbes 2001

Whether identification evidence obtained without mandatory identification parade should be excluded under s.78 | Yes -- the language of the particular Code provision was mandatory because breach of this provision would make the evidence highly unreliable=

R v fulling 1987

Whether unpleasant deception amounted to 'oppression' for purposes of PACE s.76 | No -- 'oppression' has its ordinary meaning: the 'exercise of power in a burdensome, harsh, or wrongful way'=

R v gill 2001

| s.34 only engaged if the jury find that the prosecution has made out a case to answer=

R v goldberg 1988

Whether confession of heroin addict in withdrawal should be excluded on PACE s.76 | No -- the unreliability did not follow from 'anything said or done' by the police (but see R v mc govern (1990))=

R v gowland wynn 2001

| s.34 allows inference to be drawn from silence, even on a matter crucial to the defendant's case=

R v grant 1996

Whether presence of large some of money was relevant evidence in a charge of possesion of drugs with intent to supply | Yes, but the jury must be carefully directed not to treat it as evidence of propensity=

R v gunewardene 1951

| Where confession by X would have the effect of implicating Y, jury must be warned no to take into account the evidence against Y=

R v h1995

Whether the possibility of collusion must be taken into account in determining cross-admissibility of evidence between mutliple indictments | No -- whether the evidence is to be believed is a question for the jury=

R v halpin 1996

Evidence of a lavish lifestyle will rarely be relevant in trials for possession of drugs with intent to supply=

R v hayes 1976

Whether 11 and 12-year-old children should have been allowed to give [[sworn evidence=

The relevant test is whether the witness understands the significance of the oath and the duty to tell the truth=

R v hunt 1987

Whether burden of proving a controlled drug was in a particular form was on the defendant or the prosecution | The form of the drug was one of the elements of the offence, and therefore fell to be proved by the prosecution; but there were circumstances in which it was reasonable to impose the burden on the defendant=

R v islam 1999

| Jury must be directed that evidence ofrecent complaint goes only to credibility, not to the facts stated=

R v jenkins 1869

Whether dying declaration is admissible where the death of the victim was not inevitable | No -- the rationale for admitting such declarations would be defeated if the victim harboured even a slight hope of recovery=

R v john w1998

There are no special rules for admissibility of similar fact evidence of identification, beyond those that apply to similar fact evidence generally=

R v kelly 1998

Whether identification evidence obtained in breach of Code D should be excluded under s.78 PACE | Breaches of Code D had the potential to render the evidence inadmissible, but exclusion would depend on the nature of the breach, and would not be automatic=

R v leatham 1861

Whether evidence obtained improperly is inadmissible | No, even if the evidence is obtained illegally, it does not lose its admissibility=

R v lewis 1982

Whether membership of a paedophile organization was admissible in trial for sexual offences against children | Yes, to the extent that the evidence rebutted the defence of 'innocent explanation'=

R v loosely 2000

Whether evidence obtained by entrapment was admissible | In general such evidence is admissible but, even where s.78 PACE is not relevant, the courts retain the power to stay proceedings for an abuse of process if the entrapment amounts to 'state-created crime'=

R v mc garry 1999

If defendant maintains silence from start to finish, jury should be directed not to draw adverse inferences -- s.34 of the CJPOA is not enaged=

R v mc govern 1990

Whether confession of pregnant, sick woman should be excluded on PACE s.76 | Yes, despite that the unreliability did not follow from 'anything said or done' by police (but see R v goldberg (1988))=

R v mc granaghan 1995

| 'Similar fact' evidence of identification on different counts could only be applied 'sequentially'; that is, the jury should be satisifed that the defendant was guilty one count one, before using the similar fact evidence to assess count two (but see R v Downey)=

R v mh2002

Whether complainant's allegations of sexual offences against men other than the defendant in a rape trial are admissible | Yes, making allegations does not amount to 'sexual behaviour' s.41 of the YJCEA1999=

R v nickolson 1998

Whether statement made by defendant in response to cross-examination on police finding of which he was unaware amounts to 'relying on' 'a fact' for the purposes of s.34 CJPOA | No, the defendant was never questioned on this finding, and therefore could not be expected to mention it=

R v osbourne 1905

Whether evidence of Recent complaint admissible if the complaint was made in response to a question | Yes, so long as it was not a leading or intimidating question=

R v oshea 1993

Whether defendant with twenty-year-old convictions was a person of good character for the purposes of trial for a drugs offence | No, because -- in the words of the judge -- this would 'mislead the jury'=

R v oyesiku (1972)

Whether previous statement by witness to solicitor could be admitted to rebut allegation that her testimony was fabricated | Yes, so long as the statement rebuts a specific allegation, not a general accusation of untruthfulness=

R v park 1994

Whether discretion to exclude under s.78 PACE extends to interview without caution | In principle yes, if there is a breach of Code C (but not in this case)=

R v pieterson 1995

| Identification by tracker dog is admissible evidence=

R v pitt 1982

Whether a non-compellable witness can be treated as hostile if you gives evidence inconsistent with a previous statement | Yes, but it would be better for a court to give an acaster warning to a person who plans to testify against his or her spouse=


To assess whether adverse inferences could be drawn from defendant's refusal to answer questions on the advice of his solicitor, a jury was entitled to know what justification the solicitor gave for offering this advice=

R v south ribble magistrates court ex parte cochrane 1996

| The discretion of a trial judge to allow a witness to refresh his memory from a written note should rarely be interfered with on appeal=

R v smurthwaite 1994

Whether evidence obtained by undercover policeman posing as a contract killer should be excluded on the basis of [[Entrapment=

No, as the police did not encourage the crime; but exclusion might be possible if the police took a more active role=

R v storey 1968

| A previous exculpatory statement or MixedStatement is admissible even if consistent with the witness's oral testimony, but only to credibility, not to fact=

R v straffen 1952

Whether previous murders could be adduced as evidence against defendant in murder trial | In general, evidence of previous crimes was not admissible; but where the crimes had been committed in a peculiar and distinctive way it would be=

R v richardson (1971)

Whether evidence of witness who had read from his notes before taking the stand was admissible | Yes -- as a matter of common sense any rule against such a practice would be unenforceable=

R v roberts 1942]] ||previous consistent statement not admissible to support the credibility of testimony=

R v timson and hales 1993

Whether defendant with five-year old drunk driving conviction was a person of good character for the purposes of a trial for deception | Yes, although whether accused is entitled to avye direction is generally a matter of judicial discretion=

R v thompson 1976

|hostile witness may be examined on his previous inconsistent statements=

R v valentine (1996)

Whether Recent complaint admissible if the complaint was not to the first person encountered | Yes; it is necessary that the complaint be within a reasonable time, but not necessarily to a complete stranger=

R v varley 1982

Whether a mere denial of involvment in an offence amounts to giving evidence against a co-defendant | Yes, if the effect of the denial, if believed, would be that the jury conclude that the co-defendant is guilty=

R v viola 1982

Whether court has a discretion under s.2 of the Sexual Offences (Ammendment) Act (1976) to exclude evidence of the complainant's relations with other men | No -- if the evidence would cause the jury to change their views then it was relevant, and could not be excluded=

R v virgo 1978

Whether evidence elicited from cross-examination on a previous statement is admissible as to its facts | No, only as to the credibility of the witness (but this may be different under the CJA 2003)=

R v walsh 1989

| Bad faith on the part of the police is a central factor in deciding whether to exclude evidence under s.78=

R v woodcock 1789

Whether witness could adduce evidence of a statement made by a murder victim, identifying his assailant before he died | Yes -- although this is hearsay, a person would not want his last words to be a lie=

Teixeira de castro vportual 1999

Whether use of evidence obtained by entrapment contravenes Art. 6 | Yes -- fairness must not be sacrificed for expediency=

Thongjai vr1998

| When defendant retracts or denies a confession, whether it is admissible is a matter of law, not of fact, to be determined on the voir dire. Whether it is true_ is a matter for the jury=

R v z2000

Whether evidence of behaviour in previous rape charges for which the defendant was acquited could be used as 'similar fact' evidence in a later rape trial | Yes -- that evidence tends to cast doubt on an acquital does not automatically make it inadmissible, provided that it does not subject the defendant to double jeopardy |