Law of Evidence and Evidence Act of 1984 - Essay Example

Case study – Evidence (a) The evidence that Don’s lawyers have about Eve’s prior conduct is in the nature of evidence of her character, which is normally considered irrelevant in a civil action if it is nor probative of an issue.1 Therefore, in this instance, since Eve is the complainant, her prior character will not be considered a fact at issue unless she is being defamed.2 Moreover, in such an instance of defamation it has to be the plaintiff who adduces evidence rather than the defendant and the extent of damages may also be determined accordingly. Therefore, Eve’s prior complaint against the American professor, which reveals her questionable conduct, may not be admissible. For example, in the case of Scott v Sampson3, the Court refused to receive evidence of specific acts of misconduct of the plaintiff. According to Cave J, both the principle and the authorities appear to be against admission of such evidence because it would in effect “throw upon the Plaintiff the difficulty of showing a uniform propriety of conduct during his whole life….”4 Eve can be protected in her position as a complainant witness by this general rule. Evidence provided through implied assertions may also be inadmissible, an aspect that Allen has discussed in his article, demonstrating how excluding evidence from third parties (in this case the records of the American case) could be flawed when the constitutional rights in relation to determining guilt of the accused are at stake.5 The admissibility of evidence is governed by Sections 11, 12 and 13 of the Civil Evidence Act, which emphasizes that evidence must be relevant before it will be admissible. Since the issue in this case is Dan’s alleged rape of Eve, previous convictions or lawsuits against either of the parties may not be admissible since they could be deemed to be prejudicial to the interests of the parties. Section 74(1) of the criminal Evidence Act of 1984 deals with previous convictions of persons other than the defendant, in this case the complainant Eve. This section states that such evidence would be admissible only if they are relevant to the issue before the court – which in this case, is Dan’s alleged rape. However, Section 78 also allows the judge the discretion to exclude such evidence if it would have such an adverse effect on the proceedings that it could prejudice the interests of the parties, in which case it may not be allowed. (b) In this case, Dan is being accused of rape. In general, no character evidence or evidence about prior misdeeds of the accused can be adduced.6 However, when a defendant asserts his own good character by questioning the credibility of a prosecution witness, then he may cast an imputation. In Dan’s case, he is contending that Eve consented, therefore he does not necessarily cast an imputation, however the probative value of such evidence thrown up by questioning Eve’s credibility will be examined against the question of prejudicing the case and at the judge’s discretion, the question of Eve’s prior lawsuit may have enough probative value to merit being admitted. Through the use of leading questions or on the pretext of refreshing her memory, Dan’s lawyers may be able to raise the issue of the prior case filed by Eve. Under Section 101 (1) (g) of the criminal Justice Act of 2003, Dan could make an attack on Eve’s character by adducing the evidence in his lawyers’ possession about Eve’s prior conduct.7 In this instance, the defence may be able to question Eve about the prior lawsuit on the basis of its being similar fact evidence, for which the major factors to be considered are relevance and probative value8. Section 100 allows such evidence against a non defendant to be admitted if it is important explanatory evidence.9 In so far as an assessment of the probative evidence is concerned, the Court must consider it when it is evidence of a person’s misconduct10 and contributes substantially to understanding the case as a whole11. According to Tapper, the probative force of the evidence will be weighed on the basis of three factors: (a) the cogency of the evidence that is sought to be adduced (b) the strength of the inference that may be drawn from such evidence about the disposition of the party and (c) the relevance that such disposition has to the facts of the case.12 In this instance, the fact that Eve has filed a similar suit against another professor on which no action was taken against the professor; rather Eve was warned not to waste police time. Therefore, the evidence could be relevant and of sufficient probative value by applying the criteria set out by Tapper and may be allowed in the questioning, if it can be established as explanatory evidence to show responsibility for such misconduct and false suits in the past. If Eve denies the incident when questioned, this would mean that the evidence could become inadmissible because it is not supported by oral evidence. However, Eve’s denial of the incident would amount to a lie and lies can function as corroborative evidence if the statements of the witness can be clearly shown to be a lie, thereby indicating guilt rather than shame or embarrassment.13 Furthermore, even if Eve denies the incident, any documentation Dan’s lawyers possess about the American incident would qualify as admissible if relevant to her credibility as a witness14 because it could serve to refresh her memory from a document15. Eve can also be estopped from a re-litigation of the same issue that was involved in the American courts through the principle of estoppel by record or per rem judicatum.16 If Dan’s lawyers are able to provide some records of the case Eve filed in American courts in order to show that her denial is a lie, then the evidence will only corroborate the incident and prove it to be true. (c) Section 1 of the Civil Evidence Act of 1995 defines hearsay evidence as “any statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters stated.” Milly’s evidence would qualify as hearsay evidence, since it comprises statements made by Eve about Dan. However it may be admissible in this case because the main issue that is being tried is the question of whether Dan was guilty of rape. As a result, the conversation Eve had with Milly in which she directly told her that Dan had forced her to into sexual relations would be a probative issue and admissible. Since Milly is only repeating statements that Eve has told her, therefore applying the principle in the case of Subramanium v DPP17, Milly’s testimony may be deemed to be directly admissible. While there is, in general, an exclusionary rule that prevents the admissibility of hearsay evidence, section 76 of the Police and Criminal Evidence Act 1984 does allow such statements made by a party on a previous occasion. The major issue in the case is to establish whether or not Dan was guilty of rape, therefore this purpose will be served by allowing Eve’s statements to Milly to be admitted into evidence. Moreover, with the recommendations of the Law Commission report18 has also amended the Civil Evidence Act of 1955 to allow hearsay evidence to also be admitted in civil proceedings. Furthermore, as stated by Baroness Hale in the case of Polanski v Conde Nast Publications,19 “relevant hearsay is always admissible”, therefore evidence that will be relevant in assisting the Court to determine whether or not Don was guilty of rape as alleged by the complainant, will be admissible, if the relevance can be established. Milly can also be cross examine don her views in the book that deals with rape by a date. Since the issue in this case is whether Dan raped Eve on her date, Milly may have relevant knowledge to provide a qualified opinion that may serve to establish or disprove the culpability of the defendant. People who possess specialized knowledge in an area will qualify as experts and this includes people who are experienced in a particular area20 – their opinion will be valuable in making assessments due to their knowledge of the subject. Section 30 of the Criminal Justice Act of 1988 allows for expert reports to be admitted into evidence and since Milly qualifies as an expert on the subject, she may even qualify to have her report of the incident admitted into evidence without the need to give oral testimony. Unlike an ordinary person to whom Eve could have spoken and who could have expressed an opinion on the subject, the nature of opinion Milly could provide would be outside the area of what constitutes common knowledge and “is within their[the judges] own knowledge or experience [which] is not helpful and not admissible for that reason.”21 Milly’s opinion is that of an expert with considerable knowledge about the subject matter. Since such opinion is also relevant to the probative facts at issue in this case and in addition, Milly also has personal knowledge of the incident from her talk with Eve, it is likely that Milly may be questioned about her views expressed in the book and how far they could apply in the case of Eve. Bibliography Journal articles/Websites: * Allen, Trevor, 1992. “Implied assertions as hearsay.” New Law Journal, 142 (6566): 1194 * Tapper, Colin, 1995. “The erosion of Boardman v DPP” New Law Journal, 145 (6708) : 1223 * The Hearsay Rule in Civil Proceedings’ (1993) (Law Comm. No. 216) Cm 2321 – in line with ‘The Hearsay Rule in Civil Proceedings’ (1991) Law Comm. No. 117 Cases: * Cornwell v Myskow (1987) 2 All ER 504 * Conquer v Boot (1928) 2 KB 336 * Makin v AG NSW (1894) AC 57 * Murphy v the Queen (1989) 167 CLR 94 at 130 * Polanski v Conde Nast Publications (2005) All E.R. 945 * R v Lucas (1981) 3 WLR 120 * Secretary of State for trade and industry v Coulthard (1997) 1 BCLC 329 * Scott v Sampson (1882) 8 QBD 491 * Subramanium v DPP (1956) 1 WLR 965 * Weal v Bottom (1966) 40 ALJR 436 p 576 Legislation: * Criminal Justice Act of 2003 * Criminal Evidence Act of 1984 * Civil Evidence Act of 1955 * Police and Criminal Evidence Act Read More