Criminal Evidence – Winter 2006; Prof. P. Healy
Part 1 – Intro
Characteristic feature – strict principles relating to the admissibility of info.
This is b/c of history of trial by jury
Judge regulates admissibility of evidence
Relevant substantive law has to be identified at beginning of case….but throughout there will be questions of evidence to prove stuff.
What evidence can be used and for what purpose(s)
Start with discussion of burden and standard of proof in criminal matters.
Different types of evidence. Judicial notice.
Proof – conclusion of proposed inference. Evidence may lead to this….but not necessarily.
Evidence: Indication (or could be).
Direct Evidence: For e.g., an eye-witness account would be direct evidence. See the actual act.
Indirect Evidence: For e.g. see a person running from a house covered in blood holding a knife.
Conflict b/n Truth and Justice: May come into conflict – one might have to take priority.
EG#1: Robbery at a filling station, attendant killed by shot from rifle. Police “chat” with accused. Accused tells police where rifle is to be found. He is escorted to place (swamp). Recover gun and ballistics show rifle did killing. Should this be admitted.
Fairness of procedure dictates not allowing the evidence.
But…may be loosing valuable evidence that could lead to conviction of killer (although, on the facts, only can show that knew where gun was). Injustice to victim.
Choices you make reflect the values in adjudicative process.
Changes can be seen in values of truth and justice. S. 24(2) of the Charter does not allow for inclusion of evidence where there is a violation of constitutional rights.
EG#2: Accused is charged with murder. Disreputable character as are all his friends. Any hope of acquittal he has to testify. Problem: previous conviction for murder. Admissible?
The probative value of the previous conviction – if it is just for character issues, not enough. Previous conviction not evidence to infer commission of subsequent act.
What about for credibility of testimony of accused. (warning about credibility of witness). Assumption there, however, is that people with criminal records lie. This is the case in the law currently.
Problematic, previous conviction can go to credibility but cannot infer from that fact that it is more likely that did thing accused of.
Argument – jury would be inflamed and therefore all should be inadmissible. SCC said we have more faith in our jurors.
Truth and Justice
Are from time to time, difficult cases that require decisions for reasons of justice despite truth….difficult.
Shift in Evidence Rules
Slow shift is currently happening. Distinctive feature in CL was exclusion of certain kinds of evidence. We seem to be going away from that and moving towards a view that favours broader notions of admissibility and diminishes exclusionary rules and puts more emphasis on judiciary discretion. Bare this in mind – called a major shift! (see in partic, hearsay, opinion evidence)
HEARSAY rule
Khan case – doctor charged with sexual assault of 4 year old girl. Admission of hearsay was previously barred but restated based on necessity and reliability. Could be factors in this case that gave added impetus.
à Whether we have fixed rules of general application or principles that allow for different outcomes in different kinds of cases.
Aside: New Case to Read – Henry
Evidence and proof are about how we know things that are disputed at trial.
– Are we talking about knowledge or are we talking about justified belief. Note that it is possible to prove an innocent person guilty of an offence.
Woolmington v. D.P.P
Jurisdiction
H.L. in Eng [1935]
Facts
· Woolmington shot and killed his estranged wife. He was convicted of willful murder and sentenced to death.
· He is appealing the conviction on the basis that he shot her accidentally. He claims that he bought the gun and took it to where she was living so that he could scare her into thinking he was going to commit suicide. He claims that while drawing the gun, it went off accidentally and killed her.
· After the shooting, he ran off on a bicycle. The aunt saw him run off. The aunt heard him say: “Are you going to come back home?” [note…this is evidence that shows intent]
· At trial, the judge instructed the jury that “once it is shown to a jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act…can satisfy a jury that what happened was something less [accidental, manslaughter, justifiable, etc.].” That is, once the killing is established, the burden of proof is on the prisoner to prove any circumstances of accident, necessity or infirmity.
Class
· Dec 10, 1934 – Sawed off shot gun that held two cartridges. Rigged up the gun in a sling. Threw the sawed-off part in a brook
· Left a note saying he wanted to kill himself, says he wrote it after the death of the wife. Still had one shot le
efence, the accused is first. Review of the relevant evidence then coming to a conclusion.
Judge explains the law to the jury. Judge must review essential points of the evidence. (summing up) This is a second furtile ground for appeal (misdirection and non-direction of the jury) Judge cannot fail to adequately direct jury. Misdirection was a screw-up and non-direction was no direction on a key issue. (first being procedural screw-up during trial – error with respect to procedure or evidence).
Woolmington case is example of a bit of non-direction and misdirection. At the time only option in case of misdirection and non-direction leads to quash of conviction and freeing of accused. There is a proviso (in Canada too) that conviction will not be overturned where there will not be a substantial miscarriage of justice.
i. Trial Judge’s Instruction
Implications of instruction (or direction) are profound.
What the trial judge said to the jury – Woolmington – Typically understood as first case of Lords of burden and standard of proof and presumption of innocence.
Statement of judge: Burden of proof was on the crown. Distinction b/n proof and evidence. Must show evidence that proves the guilt to the appropriate standard – BRD.
Accused does not have prove defence BRD – only shed light on reasonable doubt….or crown might not discharge its burden on its own.
— note that judge could not say “you only have one conclusion” — dispenses with jury’s job as trier of fact.
Judge says, essentially: – Actus reus being proved, you must find that killing was committed intentionally unless proved otherwise. [Taking decision of mens rea out of their hands].
à If the law compels the jury, upon proof of cupable homicide (actus reus), for a conviction of murder…basically even if they see reasonable death.
à This is not consistent with idea that crown must bring evidence to prove its case.
à This problematic presumption of malice (or intention) would be problematic whether murder or another offence.
