The Law of Evidence - Essay Example

The Law of Evidence In this case, there appear to be some grounds for the issue of a warning about the evidence being proffered by Carrie in accordance with the Manjukola1 warning prescribed by the Court of Appeals. This warning is particularly significant since corroboration warnings have been removed2 and as stated by Mirfield, “suspect witnesses will not go away just because the corroboration warnings have gone.”3 For instance, it was stated in that decision that a judge is required to issue a special warning to the jury when “the witness has been shown to be unreliable”, and to issue a stronger warning if “the witness is shown to have lied, to have made previous false complaints…..”4 This is the case with Carrie, because she has admitted under cross examination that she had made one prior false complaint of rape against another man. Therefore, in the interest of preserving fairness and equity to the defendant in the case, the Judge may have to issue a warning to the jury to exercise caution. Moreover, the content of his warning should also take into account the fact that she has made a prior false complaint. Therefore, the judge may warn the jury to exercise caution and may suggest to the jury that they look for supporting evidence before arriving at a decision basely solely on Carrie’s evidence. The defense is likely to press for the issue of a Manjukola warning. They have he following points in their favor: (a) Carrie has already given a false complaint about another man, therefore her witness is unreliable (b) If Carrie had indeed been raped, she would have mentioned it to her friend Eva whom she saw first after the incident, but her response when Eve asked if she was all right was “sure, why not?” This further substantiates the grounds that Carrie is an unreliable witness (c) The medical examination has shown that Carrie had sexual intercourse but there is no indication that this was forced. The prosecution is likely to argue against the issue of a Manjukola warning. They are likely to state that the entire question of corroboration warnings which purportedly allowed protection for defendants was done away with by the Criminal Justice and Public Order Act of 1994. The reason for this was the complexity they brought into judicial proceedings and their tendency to confuse judges. Therefore they are likely to argue that Carrie’s interests will be compromised and the jury will be unnecessarily prejudiced through the issue of a Manjukola warning which is not necessary. 2. The two major issues that arise with this scenario are (a) Stefan’s silence in Court especially in connection with his alibi which could establish innocence and (b) the need for protection of the young witness Ingrid who has been threatened. Stefan will be treated as a competent witness for himself but not as a compellable witness. Therefore, he will be adjusted competent to be a witness but cannot however, be compelled to give evidence about his alibi. Therefore, if he chooses to remain silent, section 34 of the Criminal Justice and Public order Act of 1994 may apply, which allows an adverse inference to be drawn on the accused’s silence. Therefore, the mere availability of the alibi may not be adequate to support Stefan’s case unless he is also prepared to back it up with oral testimony to support the alibi that he is giving to the Court. Ingrid’s testimony is vital to convict Stefan, since without her evidence, his guilt will be only a matter of suspicion that cannot be proved. As stated by Lord Devlin in Hussein v Chong Fook Kam (1970), “suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; I suspect but I cannot prove.”5 Hence, Ingrid’s testimony is vital. But because she is under a state of fear and refuses to testify, she would be classified as a vulnerable witness. Since she is under the age of 16, she would also qualify as a vulnerable witness under section 16 of the Youth Justice and Criminal Evidence Act. Therefore, under the present law, she could be allowed to provide evidence on video at an unspecified date and time before the trial actually takes place. Alternatively, she can also testify from behind a screen or over a live television link and most of the measures that can apply in the came of intimidated witnesses such as Ingrid are spelt out under section 17, especially in relation to violent and sexual offences.6 These protective measures are also available at the Crown courts, therefore Ingrid’s testimony may have to be obtained through these means. Other special measures can also be availed of, as provided for in the Bill, such as the provision of a special screen so that Ingrid does not have to see Stefan, the accused, or alternatively, she could provide her testimony in private or over a live link.7 3. The presumption of innocence is that “every man is presumed to be innocent until he is proven guilty” is the underlying principle of English criminal law.8 This means that an accused person will be deemed to be innocent until evidence has been produced to support a conclusion of guilty beyond a reasonable doubt. According to Cross and Tapper, the presumption of innocence means that “the prosecution is obliged to prove the case [against defendant in question] beyond a reasonable doubt.”9 However, this principle is only applicable in criminal law. The inference about whether an offence is a civil or criminal one is one that is already laid out by Parliament in the framing of the law, it is the Court’s duty only to interpret it. In the case of Johnstone10, the judgment provides a clear inference that before an offence can amount to a criminal action it must first also amount to a civil infringement. The defendant in the Johnstone case attempted to rely on the provisions of Section 92(5) of the Trade Marks Act of 1994, wherein there is a provision for a defence if a person “believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trade mark". The decision of the Court held that during a trial, what must be examined is how far the belief of the defendant is “reasonable.” The question that arises in evaluating where the burden of proof should fall is whether such burden of proof, if imposed on the defendant, should be legal or evidential. When a defendant is placed in a position where he/she must adduce some evidence in support of his/her position and to raise an issue before the court, this is known as the evidential burden of proof on the defendant. On the other hand, if an issue already exists and the party is mandatorily obliged to present evidence in order to support or disprove such an issue, then this comes under the category of legal burden of proof. The burden of proof aims to provide a jury with at least enough evidence to support the position of a reasonable doubt of the guilt of the accused. The case of Johnstone therefore imposed a legal rather than an evidential burden of proof, therefore requiring the defendant to furnish proof on the balance of probabilities. Therefore it may be concluded that the discretion of the Courts will be called into question in making a determination of when evidential proof may be justified in order to not violate the presumption of innocence allowed to the defendant. 4. The right to silence of an accused has long been an established principle of English law. This right to silence is associated with the presumption of innocence, whereby every man is presumed to be innocent until he has actually been proved to be guilty. Therefore, every accused person has the right to remain silent so that he or she does not incriminate himself/herself. However, this was perceived to be unduly advantageous to accused persons, especially as per the case of R v Alladice.11 In this case it was pointed out that allowing the accused to remain silent at trial and simultaneously not allowing the jury or the Court to draw an adverse inference from the failure to testify was in practice, more in favor of guilty people rather than the innocent. Section 34(2) of the Criminal Justice and Public Order Act of 1994 therefore allows that where evidence is being given against a person accused of a crime, if the accused person fails to provide evidence to rebut the charges but instead chooses to remain silent, then an inference of guilt, then an adverse inference to be drawn on the accused’s silence.12 While a witness or an accused person may be competent to testify he cannot be compelled to do so, therefore the choice to remain silent is his and may go against him. Section 43 (2) mentioned above allows the Court or jury to draw “such inferences from the failure [to testify] as appear proper.” Section 35 of the CJPA further clarifies that when a witness has been judged to be aware of the fact that a stage has been reached where he can give evidence and he deliberately chooses not to do so , or refuses to answer any question with due cause, then an inference of guilt can be made. However, as spelt out in the case of R v Cowan, Gayle and Ricciardi,13 a defendant cannot be convicted solely on the basis of an adverse inference and other supporting evidence will be required. The adverse inference cannot form the sole basis upon which an accused is convicted, rather the conviction will have to be supported by other evidence or testimony that corroborates the preliminary inference of guilt that is drawn from the accused’s silence. Bibliography * Cross, Rupert and Tapper, Colin, 1990. “Cross on Evidence” (7th edn) London”: Butterworths at pp 125 * Feldman, David, 1966. “The Defendant’s rights under English law” Madison: University of Wisconsin Press at pp 104 * Mirfield, 1994. “Corroboration: After the 1994 act.” Criminal Law Review, 48 at 460 * Section 23, Youth, Justice and criminal Evidence Bill [online] available at: http://www.publications.parliament.uk/pa/cm199899/cmbills/074/99074--e.htm#22 Legislation cited: * Youth Justice and criminal Evidence Act * Criminal Justice and Public Order Act of 1994 Cases cited: * Hussein v Chong Fook Kam (1970) A.C. 942 at 948 * R v Alladice (1988) 87 Criminal Appeal R 380 (CA) * R v Cowan, Gayle and Ricciardi (1996) QB 373 * R v Johnstone (2003) 1 WLR 1736 * R v Makanjuola, R v Easton [1995] 3 All ER 730 Read More