FUNDAMENTAL CONCEPTS
OF EVIDENCE IN LIGHT OF
PRECEDENTS
Mian Ali Haider
L.L.B.,L.L.M (Cum Laude) U.K.
EVIDENCE (
In R v Osbourne & Virtue (1973) 57 CrAppR 297
[[1973] 2 WLR 209; [1973] 1 AllER 649;[1973] 1 QB 678; [1973] CrimLR 178]
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Lawton LJ, delivering the judgment of the Court, made the following
comments as to what is 'evidence'
'In police experience evidence means information which can be put before a
Court; and it means that not only to police officers but to the general public, as
is shown clearly by one of the meanings given to the word "evidence" in the
Shorter Oxford English Dictionary, which under the sub-heading "Law"
defines "evidence" in these terms:
"Information that is given in a legal investigation, to establish the fact or point
in question." [… In Phipson on Evidence, 11th edition the term "evidence" is
defined as follows:] "Evidence, as used in judicial proceedings, has several
meanings.
First, the means, apart from argument and inference, whereby the court is
informed as to the issues of fact as ascertained by the pleadings; secondly, the
subject – matter of such means."'
Thompson v R [1918] AC 221 [(1918) 13
CrAppR 61] Lord Dunedin commented
• 'The law of evidence in criminal cases is
really nothing more than a set of practical
rules which experience has shown to be best
fitted to elicit the truth about guilt without
causing undue prejudice to the prisoner.‘
• In R v Christie (1914) 10 CrAppR 141
[[1914] AC 545] Lord Reading commented
• 'The principles of the law of evidence are the same whether
applied at civil or criminal trials, but they are not enforced
with the same rigidity against a person accused of a
criminal offences as against a party to a civil action. There
are exceptions to the law regulating the admissibility of
evidence which only apply to the criminal trials, and which
have acquired their force by the constant and invariable
practice of judges when presiding at criminal trials. They
are rules of prudence and discretion, and have become so
integral a part of the administration of the criminal law as
almost to have acquired the full force of law.'
RELEVENCE
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The main general rule relating to the admissibility of evidence is that all
evidence which is 'relevant' in determining the guilt of a defendant is
admissible, subject to the discretion of the Court.
In R v Apicella (1986) 82 CrAppR 295 [[1986] CrimLR 238] Lawton LJ,
delivering the judgment of the Court:
'A basic principle of the law of evidence is that evidence which is relevant
should be admitted, unless there is a rule of law which says that it should not
be.‘
In R v Funderburk (1990) 90 CrAppR 466 [[1990] 2 AllER 482; [1990] 1
WLR 587; [1990] CrimLR 405] Henry J, delivering the judgment
'One starts with the obvious proposition that in a trial relevant evidence should
be admitted and irrelevant evidence excluded. "Relevant" means relevant
according to the ordinary common law rules of evidence and relevant to the
case as it is being put, as Lord Lane CJ put in the case of Viola (1982) 75
CrAppR 125, 128,130, [1982] 3 AllER 73,76, 77.
But as relevance is a matter of degree in each case, the
question in reality is whether or not the evidence is or is not
sufficiently relevant??????????
• In Pollitt v R (1991 – 1992) 174 CLR 558 Brennan J, as a member of
the High Court of Australia, commented
• 'The first condition of admissibility of evidence is relevance; apart
from questions relating to the credit of a witness, a fact which evidence
is tendered to prove (a "fact to be proved") must be a fact in issue or a
fact relevant to a fact in issue.
• Where a fact to be proved is a fact in issue, admissibility of evidence
tendered to prove it depends solely on the manner in which that
evidence tends to establish the fact to be proved.
• Where a fact to be proved is a fact relevant to a fact in issue,
admissibility depends first on the manner in which that evidence tends
to establish the fact to be proved, and, secondly, on the relevance of
the fact to be proved to a fact in issue.'
LAW RELATING TO
“WEIGHT”
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Upon evidence being ruled admissible the Court must determine what 'weight'
the evidence should be given, ie., amount of importance. A Court is entitled to
put what 'weight' it wishes to the evidence of each witness.
In Samuel Dalu v R (Unrep. Criminal Case No. 43 of 1992) Palmer J stated
'It is trite law that matters on weight of evidence are matters for the Magistrate
(as judge of both law and fact) to decide upon. Questions on the weight of
evidence are not determined by arbitrary rules, but by common sense, logic
and experience.
In the same paragraph the statement of Birch J in the case of R v Madhub
Chunder (1874) 21 WRCr 13 at p.19 were quoted by the learned author as
follows:
"For weighing evidence and drawing inferences from it, there can be no
cannon. Each case presents its own peculiarities and in each common sense
and shrewdness must be brought to bear upon the facts elicited.' (emphasis
added) DPP v Hester [1972] 2 WLR 910; [1972] 3 AllER 440; (1973) 57
CrAppR 212; [1973] AC 296.
Refer also to the law relating to the 'Evaluation Of Evidence'
BEST EVIDENCE RULE?
In R v John Mark Tau & 16 others (Unrep. Criminal Case No. 58 of 1993) Palmer
J
• 'The general rule in common law on the issue of proof of the contents
of a document is that the party seeking to rely on the contents of a
document must adduce primary evidence of those contents. An example
of this would be where a party has in his hands the original document.
In those circumstances he must produce it and he cannot give
secondary evidence by producing a copy (see Kajala –v- Noble (1982)
75 CrAppR 149 at p. 152). This is known as the Best Evidence Rule.
• In R v Governor of Pontville Prison & another, Ex parte
Osman [1989] 3 AllER 701 [(1990) 90 CrAppR 281; [1990] 1 WLR
277] Lloyd LJ, delivering the judgment of the Divisional Court, held at
page 728:
• 'But although the little loved best evidence rule has been dying for
some time, the recent authorities suggest that it is still not quite dead.
Kajala v Noble (1982) 75 CrAppR 149 Ackner LJ
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"The old rule, that a party must produce the best evidence that the nature of the
case will allow, and that any less good evidence is to be excluded, has gone by
the board long ago. The only remaining instance of it is that, if an original
document is available in one's hands, one must produce it; that one cannot give
secondary evidence by producing a copy.“
In R v Wayte (1982) 76 CrAppR 110 Beldam J stated at page 116:
"First, there are no degrees of secondary evidence. The mere fact that it is easy
to construct a false document by photocopying techniques does not render the
photocopy inadmissible. Moreover, it is now well established that any
application of the best evidence rule is confined to cases in which it can be
shown that the party has the original and could produce it but does not."
What is meant by a party having a document available in his hands? We would
say that it means a party who has the original of the document with him in
court, or could have it in court without any difficulty. In such a case, if he
refuses to produce the original and can give no explanation, the court would
infer the worst. The copy should be excluded. If, in taking that view, we are
cutting down still further what remains of the best evidence rule, we are
content.'
HEARSAY (71 of QSO)
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In Pollitt v R (1991 – 92) 174 CLR 572 the High Court of Australia examined
the admissibility of 'hearsay evidence'. Brennan J commented:
'The distinction between hearsay and original evidence was stated by Lord
Wilberforce in Ratten v R [[1972] AC 378 at page 387; (1972) 56 CrAppR
18]:
"The mere fact that evidence of a witness includes evidence as to words
spoken by another person who is not called, is no objection to its admissibility.
Words spoken are facts just as much as any other action by a human being. If
the speaking of the words is a relevant fact, a witness may give evidence that
they were spoken. A question of hearsay only arises when the words spoken
are relied on 'testimonially', ie., as establishing some fact narrated by the
words. Authority is hardly needed for this proposition, but their Lordships will
restate what was said in the judgment of the Board in Subramanian v Public
Prosecutor [[1956] 1 WLR 965 at p.970 …]."' (emphasis added)
Subramanian v Public
Prosecutor [[1956] 1 WLR 965
• "Evidence of a statement made to a witness by a
person who is not himself called as a witness may
or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is to
establish the truth of what is contained in the
statement. It is not hearsay and is admissible when
it is proposed to establish by the evidence, not the
truth of the statement, but the fact that it was
made."'
LITMUS TEST FOR HEARSAY
• The belief that anything said outside the hearing of a defendant
is hearsay and inadmissible is an incorrect interpretation of the law
relating to the admissibility of 'hearsay evidence'. The test to be
applied when considering the admissibility of any conversation is as
follows:
• 'In determining whether evidence is 'hearsay', it is necessary to
determine the purpose for which the evidence is sought to be admitted.
• If the prosecution relies on the evidence as being the truth of what is
contained in the statement, it is 'hearsay' if the witness who gives the
evidence in the witness box does not have direct knowledge of the
evidence contained in the statement.'
• Direct knowledge refers to the reception of evidence through the
witness's own senses.
• For example, 'A' observes a murder being conducted. 'A' then goes and
tells 'B' what happened. Any account given by 'B' to a Court about the
conversation would be 'hearsay' because 'B' is unable to be cross –
examined on the truth of the conversation, ie., what actually occurred.
• In Sam Salafilamo v R (Unrep. Criminal Appeal No. 10 of 1994) the
Court of Appeal stated :
• 'The last ground of the appeal was one of law and related to some
hearsay evidence given by three of the witnesses. There undoubtedly
was some hearsay evidence given, though some of the complained of
hearsay was in fact original evidence given not to prove the truth of
what another had said but to show why the witness had acted in the
way he did.' (emphasis added)
DYING DECLARATION (46(1) of QSO)
• The evidence of a declarant / deceased is admitted
to prove who committed the offence. Considering
that the declarant / deceased obviously can not be
cross – examined as to the truth of his/her dying
declaration, ie., whether the defendant actually
committed the offence, such a declaration can be
told to a Court by another person who heard it.
The purpose of such a declaration is to prove that
the defendant committed the offence. Therefore, a
'dying declaration' is an exception to the 'hearsay
rule'.
Nembhard v R (1982) 74 CrAppR 144 [[1981] 1 WLR 1515; [1982] 1
AllER 183; [1982] CrimLR 41] Sir Owen Woodhouse, delivering the
judgment of the Privy Council, held
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'It is not difficult to understand why dying declarations are admitted in
evidence at a trial for murder or manslaughter and as a striking exception to
the general rule against hearsay. For example, any sanction of the oath in the
case of a living witness is thought to be balanced at least by the final
conscience of the dying man. Nobody, it has been said, would wish to die with
a lie on his lips. So it is considered quite unlikely that a deliberate untruth
would be told, let alone a false accusation of homicide, by a man who believed
that he was face to face with his own impending death. There is the further
consideration that it is important in the interests of justice that a person
implicated in a killing should be obliged to meet in Court the dying accusation
of the victim – always provided that fair and proper precautions have been
associated with the admission of the evidence and its subsequent assessment,
by the jury. In that regard it will always be necessary for the jury to scrutinize
with care the necessarily hearsay evidence of what the deceased was alleged to
have said both because they have the problem of deciding whether the
deponent who has provided the evidence can be relied upon and also because
they will have been denied the opportunity of forming a direct impression
against the test of cross – examination of the deceased's own reliability.
In Mills and others v R [1995] 3 AllER 865 Lord Steyn, delivering the judgment of
the Privy Council, at pages 875 – 876 whilst examining the admissibility of a
'dying declaration' commented:
• 'Their Lordships accept that the modern approach in the law is
different:
• the emphasis is on the probative value of the evidence.
• That approach is illustrated by the admirable judgments of
Lord Wilberforce in the Privy Council in Ratten v R [1971] 3
All ER 801, [1972] AC 378 and Lord Ackner in the House of
Lords in R v Andrews [1987] 1 All ER 513, [1987] AC 281
and notably by the approach in the context of the so – called
res gestae rule that the focus should be on the probative value
of the statement rather than on the question whether it falls
within an artificial and rigid category such as being part of a
transaction. […]
CIRCUMSTANTIAL EVIDENCE
• Shepherd v R (1990) 170 CLR 573 [(1990) 51 ACrimR 181; (1990) 65 ALJR
132] the High Court of Australia examined the admissibility of 'circumstantial
evidence' and held:
• Per McHugh J at pages 592 – 593:
• 'Ordinarily, in a circumstantial evidence case, guilt is inferred from a number of
circumstances – often numerous – which taken as a whole eliminate the
hypothesis of innocence. The cogency of the inference of guilt is derived from
the cumulative weight of circumstances, not the quality of proof of each
circumstance.'
• Per Dawson J at pages 579 – 580:
• '[T]he prosecution bears the burden of proving all the elements of the crime
beyond reasonable doubt. That means that the essential ingredients of each
element must be so proved. It does notmean that every fact – every piece of
evidence – relied upon to prove an element by inference must itself be proved
beyond reasonable doubt.' (emphasis added)
Nori and stated in Barca (1975) 133 CLR 82 where at 104 –
105, Gibbs, Stephen and Mason JJ said
• "When the case against an accused person rests substantially upon
circumstantial evidence the jury cannot return a verdict of guilty unless the
circumstances are 'such as to be inconsistent with any reasonable hypothesis
other than the guilt of the accused': Peacock (1911) 13 CLR 619 at 634. To
enable a jury to be satisfied beyond reasonable doubt of the guilt of the
accused it is necessary not only that his guilt should be a rational inference
but that it should be 'the only rational inference that the circumstances
would enable them to draw': Plomp (1963) 110 CLR 234 at 252; see
also Thomas (1960) 102 CLR 584 at 605 – 606. However 'an inference to be
reasonable must rest upon something more than mere conjecture. The bare
possibility of innocence should not present a jury from finding the prisoner
guilty, if the inference of guilt is the only inference open to reasonable men
upon a consideration of all the facts in evidence': Peacock (1911) 13 CLR at
661)."
INDENTIFICATION
EVIDENCE(22 of QSO)
• Privy Council in R v Turnbull & others [1977] QB 224 [(1976) 63
CrAppR 132; [1976] 3 WLR 445; [1976] 3 AllER 549; [1976]
CrimLR 565]
• The fundamental principle of 'identification evidence' is that the
'weight' to be assigned to such evidence is determined by the
circumstances under which the 'identification' was made, ie., at the
time of the commission of the offence, see R v Breslin (1985) 80
CrAppR 226. It is at that time that the witness identifies the defendant.
Therefore, a Court must closely examine whether the witness has
sufficient time to be able to identify the defendant. In order to ensure
that those circumstances are properly covered prosecutors should ask
the questions as outlined by the Privy Council
Guide Lines!
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In R v Turnbull & others (supra) the Privy Council stated:
'[T]he judge should direct the jury to examine closely the circumstances in which the
identification by each witness came to be made.
[i] How long did the witness have the accused under observation?
[ii] At what distance?
[iii] In what light?
[iv] Was the observation impeded in any way, as for example by passing traffic or a press
of people?
[v] Had the witness ever seen the accused before?
[vi] How often?
[vii] If only occasionally, had he any special reason for remembering the accused?
[viii] How long elapsed between the original observation and the subsequent
identification to the police?
[ix] Was there any material discrepancy between the description of the accused given to
the police by the witness when first seen by them and his actual appearance?
IDENTIFICATION PARADE
• The identification parade must comprise of at least 8 persons of a similar
description as the suspect.
• All unauthorised persons must be excluded from the location of the
identification parade.
• The suspect must be allowed to select his/her own position in the
identification parade.
• The particulars of all persons who participated in the identification
parade must be recorded.
• Under no circumstances is the identity of the suspect to made obvious to
the witness.
• Under no circumstances is the witness to be told or indicated as to who is
the suspect.
• Under no circumstances should the witness see the suspect in police
custody prior to participating in the identification parade.
CHARACTER EVIDENCE (66, 69 civil.,
67,68 criminal., cross ref. 340(2) Cr.P.C.
• Occasionally, the defence may call witness/es to give evidence of a defendant's
'good character' for the purpose of trying to persuade the Court that the
defendant was unlikely to have committed the offence/s in question.
• In R v Thompson, Sinclair & Maver [1995] 2 CrAppR 589 Evans LJ, delivering
the judgment of the Court of Appeal, stated at page 593:
• 'A defendant is always entitled to call evidence of his good character or other
evidence "in disproving his own guilt" of the offence charged against him.
[…] The test is whether the evidence is relevant or not to the question of guilt.'
(emphasis added)
• In R v Marr (1990) 90 CrAppR 154 [[1989] CrimLR 743] Lord Lane CJ,
delivering the judgment of the Court, stated at page 156:
• 'The learned judge should, in our judgment, have directed the jury that good
character goes primarily to credibility, to whether the defendant should be
believed by the jury or not.'
• In R v Richardson & Longman (1968) 52 CrAppR 317 [[1968] 2 AllER
761; [1968] 3 WLR 15; [1967] 1 QB 299] Edmund Davies LJ, delivering
the judgment of the Court, held :
• 'In our view, evidence of character, when properly admitted, goes to
credibility of the witness concerned, whether the evidence discloses good
character or bad character.'
• In R v Cohen (1990) 91 CrAppR 125 Farquharson LJ, delivering the
judgment of the Court, stated:
• 'The proper direction is that the jury should give weight to good character,
and the judge should go on to explain in what regard weight should be
given. That should be done in two ways: first, by way of bolstering his
credibility, as any man of good character is entitled to claim; and secondly,
to establish that because he has lived his life to the age he has and remained
a man of good character, he is the less likely to commit a crime.'
R v Broadhurst, Meanley & Hill (1918) 13 CrAppR 125
Darling J, delivering the judgment of the Court, stated at
pages 129 – 130:
• 'The history of the admission of evidence of good character, as given in
Stephen's History of the Criminal Law of England, shews that such
evidence does not stand precisely the same plane as that concerning the
relevant facts going to prove or disprove the issue. That the view of this
kind of evidence taken by the learned judge at the trial is correct is made
abundantly clear by the following statement by Lord Ellenborough CJ in R
v Davies, 31 State Trials, 1808, p. 216:• "This is the whole of the evidence on the substance of the charge. What
follows is evidence, highly important if the case be at all doubtful, if it
hangs in even scales. If you do not know which way to decide, character
should have an effect; but it is otherwise in cases which are clear … As I
have already stated to you, if the evidence were in even balance, character
should make it preponderate in favour of a defendant; but in order to let
character have its operation, the case must be reduced to that situation."