FUNDAMENTAL CONCEPTS OF EVIDENCE IN LIGHT OF PRECEDENTS

1. FUNDAMENTAL CONCEPTS OF EVIDENCE IN LIGHT OF PRECEDENTS Mian Ali HaiderL.L.B.,L.L.M (Cum Laude) U.K.

2. 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] • 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."'

3. 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

4. '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.' 

5. RELEVENCE • 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. 

6. 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.'

7. LAW RELATING TO “WEIGHT” • 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'

8. 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.

9. Kajala v Noble (1982) 75 CrAppR 149 Ackner LJ • "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.' 

10. HEARSAY (71 of QSO) • 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) 

11. 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."'

12. 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.'

13. 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) 

14. 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'.

15. 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 • '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.

16. 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. […]

17. 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)

18. 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)."

19. 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

20. Guide Lines! • 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?

21. 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.

22. 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 LaneCJ, 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.'

23. 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.'

24. 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."

25. END OF EVIDENCE