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Standard Of Proof And Hearsay Rule Law General Essay

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Date added: 17-06-26

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The legal burden is defined as the burden of proving facts which is determined by a fact finder. In this instance as it is a criminal case the fact finder would be a magistrate or the jury. In criminal law the prosecution has to prove the legal burden of proving every element of the offence charged and has to disprove any defences raised beyond reasonable doubt as illustrated in the case of Woolmington V DPP (1935). [1] The legal burden of proof would have to be proven by the prosecution. This means that the prosecution has to prove the incident has occurred to obtain a valid conviction. This is shown by the concept of the golden thread by Viscount Sankey where he stated: "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". The defence that was raised has to be disproved by the prosecution, to the party trying the fact i.e. judge or jury to decide if the legal burden is discharged. The rule is part of a policy to avoid embarrassing criticism by minimising wrongful convictions which are more likely to be avoided if the burden is preset in this way than if an accused needs to prove there innocence. It can also be justified via appeal. [2] There has to be a standard of proof and there are two types. Firstly if the prosecution has to prove something then they must do it beyond reasonable doubt. Secondly if the defence has to prove something they do it on a lower standard on the balance of probabilities. The standard of proof necessary to discharge the burden of proof relates to the legal and not evidential burden. If a standard of proof is not reached then the party holding the legal burden will lose. It is put in place for the prosecution for a sense of assurance, which is illustrated by the case of Miller V Minister Of Pensions (1947) [3] whereby Lord Denning stated: "If the evidence is so strong against a man as to leave only a remote possibility in his favour the case is proved beyond reasonable doubt". [4] It is put in place for the defence on the balance of probabilities, which is illustrated in the case of Carr-Briant (1943). [5] In relation to the given facts a computer produced document which contains a register of all persons which are authorised to invest in businesses in the United Kingdom kept under the Financial Provisions and Services Act 2010. The above mentioned document does not contain the banks name which is Credit Crunch Bank; Megarich declared that his adverts are approved by the Credit Crunch Bank which he assumed was an authorised person under the act. Firstly Megarich has to show his approved advert by Credit Crunch Bank and secondly that the named bank is an authorised person under the act. Such burden falls on the appellant to prove. Megarich is in possession of authorised copy which was issued to the Credit Crunch Bank under the act, this is a piece of vital evidence which will help prove that Credit Crunch bank is an authorised person under the above mentioned act but this burden lies on Megarich to prove this fact which will have to be proven to the jury and convince the jurors beyond reasonable doubt that this is the case. The piece of evidence in issue is vital to the defence and prosecution. The type of evidence is of a documentary nature which is inadmissible due to it being hearsay evidence. If there is any authorisation stamp this will be hearsay like in the case of Patel (1965) [6] where the words "Produce Of Morocco" was stamped on the bags and this was held to be hearsay. In the given facts Grass who is currently seriously ill and will not be able to give evidence was a previous employee of Megarich made a statement to the police investigator stating that Megarich was keen on expanding business in the United Kingdom and wanted to make sure that Megarich's adverts issued in Hong Kong reached the United Kingdom. This evidence will be against Megarich relied on by the prosecution. The argument raised by Megarich is that some of his adverts did not appear on the United Kingdom video screens and not directed at persons in the United Kingdom. It is the duty of the prosecution to prove under s1(3) of the act to show that the advertisements even if there were issued outside of the United Kingdom were directed to persons in the United Kingdom. The evidence produced in relation to Grass hearsay evidence will be produced merely because he will not be giving oral evidence. Such type of evidence will admitted under the Criminal Justice Act 2003 s116 this is merely because the witness is unavailable. A statement can be admissible under the Criminal Justice Act 2003 s116 if oral evidence is admissible and the person who has made the statement is identified and there is a valid reason which must be specified in relation to why the person who has made the statement cannot attend. In relation to Grass who is seriously ill he satisfies all the conditions because he is unfit to be a witness because of his bodily or mental condition. In the given problem were Megarich is charged in the United Kingdom for an advert inviting investors to purchase shares in Hong Kong without the approval of an authorised person. The prosecution will have to prove that this crime has been committed like in the case of Westminister City Council V Croyalgrange Ltd (1986) [7] in this case the House Of Lords held that s101 was inapplicable because of the exception in the question qualified the prohibition created by para 6 and not the offence created by para 20(1). The prosecution had to prove this and they had to prove that the directors of the company did know that no licence was held or obtained by the tenant which was illustrated in the case of Environmental Agency V ME Foley Contractors Ltd (2002) [8] . The classification of crime contains elements that have to be proven these types of elements are referred to as general burden and each element may be referred to as specific proof burdens. For example if the offence of theft was committed the specific burdens of the offence would be intention to permanently deprive of a belonging which belongs to another, dishonesty and appropriation. The defendant may satisfy the specific burden but the general burden never shifts and will remain on the prosecution this is due to the European Court Of Human Rights Art 6 which protects the common law principle which is known as the presumption of innocence. Once the defence have fulfilled the criteria of burden, the standard of proof is on the balance of probabilities. The standard of proof and burden of each element is generally defined at the beginning of each trial. This is illustrated in the case of Braithwaite (1983) [9] where Lord Lane stated: "The effect of that is that when the matters in that section have been fulfilled, the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the defendant to show, on the balance of probabilities, that what was going on was not reception corruptly as inducement or reward". Lord Mustil stated: "For the dispute involves two separate issues, each with its own burden of proof, which remains unchanged throughout the course of the action". This was clarified in the case of Brady V Lotus Cars (1987) [10] . According to the writings in Evidence The Fundamentals Phil Huxley stated the following in relation to the case of Brady V Lotus Cars (1987) [11] "that the specific burden of proving that he did not receive any corrupted gifts which was always on the defendant, although such burden did not have to be discharged until it was engaged, the prosecution had to prove that the gift was received corruptly". In relation to the given problem if Megarich states that there is no answers to the question then it is the role of the prosecution to provide more evidence which is known as evidential burden. The evidential burden is defined as merely a burden to produce evidence. It is the burden of adducing evidence or raising an arguable case. At the start of a trial, the prosecution has the evidential burden to produce evidence on every element of the offence charged. If the prosecution cannot raise a prima facie case the defence will succeed in a submission of no case to answer this process is known as passing the judge. In the case of Jayasena (1970) [12] the prosecution failed to discharge the evidential burden and the accused was acquitted merely because every element of the offence was not proven. On the other hand a more onerous burden may fall on the defendant whereby they rely on a defence which goes by a mere denial of the prosecution case. The standard definition of the Hearsay Rule is found in the widely used Black's Law Dictionary which states: "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matter therein, and thus resting for its value upon the credibility of the out of court asserter. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say". Hearsay can be identified by applying the following rules; that is hearsay is anything said or written outside the courtroom, if it is being used to prove the truth of what is contained in those words or writing. A valuable case to look at is R V McLean (1967) [13] in this case the Court Of Appeal found with considerable reluctance, that the witness's testimony was inadmissible hearsay. There is one Australian case, were hearsay was again not admissible. The case is Miller V Wertheim And Rothman (2001) [14] in this case, Ms Miller alleged that Mr Wertheim the outgoing president of the New South Jewish Society, made a speech which vilified and intimidated Jewish people. The evidence of the speech was objected by the respondents on the basis that it was hearsay. The respondents were wholly successful in their application to dismiss the principal application and were prima facie entitled to an order for cost. In this case there objection was successful because they would not allow the speech and said that indeed that it was hearsay, since it was an out of court statement. [15] The Evidence Act now also provides that in any criminal proceedings a computer generated document of any statement contained in such document is admissible in evidence of any fact stated therein. It is because of this that to considerable extent particularly in civil cases these problems have been resolved by statutory in intervention in the form of The Criminal Justice Act 1988 and the Civil Evidence Act 1995. These are the certain extent to which the rule of hearsay can be admissible in court as evidence. The Criminal Justice Act 2003 s114(1) abolished the common law rules which govern admissibility of hearsay in criminal proceedings. There are eight common law exceptions to the rule excluding hearsay which are governed under the Criminal Justice Act 2003 s118(1). Oral and documentary hearsay are admissible subject to certain conditions under the Criminal Justice Act 2003 s114-117. Evidence falls into the category of hearsay when it is not of a direct nature. Direct evidence means that the person that made the statement has to testify. The next step is to classify the evidence as either first hand or multiple- hearsay. First hand is hearing the relevant evidence personally and multiple-hearsay is the opposite of first hand but hearing it from someone who heard it from the relevant person. The maker of a statement cannot be cross examined this right is contained is the European Court Of Human Rights Art 6 the person who makes the statement is not on oath whilst making the statement, the courts cannot make a conclusion on credibility, so therefore it is not considered best evidence. In relation to the given problem the prosecution carry the evidential burden. On the other hand if the defendant carries the legal burden in proving insanity and other issues the defence will also bear the evidential burden in relation to such issues. [16] Grass who is seriously ill and is unable to give evidence, it is now up to the courts discretion whether or not to accept the documents, if the documents are not accepted then it is not admissible. Under the Criminal Justice Act 2003 s117 the court can refuse to admit the documents under certain circumstances. [17] In the given facts in relation to the computer containing documents in a criminal trial of evidence contained on or created by a computer, this is given as hearsay evidence which is of great significance. Hearsay is a statement made by a person other than someone giving oral evidence in the proceedings, this is generally not admissible in criminal proceedings as evidence of opinion or any fact contained in the statement. This rule is highly relevant in relation to computer documents merely because it is not always possible to identify who created the documents. [18] The admissibility of documents and business are dealt under the Criminal Justice Act 2003 s117 this section applies to hearsay where the information is provided by a human being. In relation to Grass who is ill and cannot provide evidence it is better for the person who provided the information in the document which contains hearsay to be called to give oral evidence in relation to the information.
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