Assignment on Legal System (Doc)

Evidence

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
REFERENCES................................................................................................................................4

INTRODUCTION
Evidence is a term in which legal documents and papers which are admissible in the court
to prove allegations. Every court requires sufficient explanation to assess the validity of the
statements in order to take final decisions. There are laws and rules made for this purpose which
should be followed while providing the proofs. These should be relevant and reliable and the
meet the quality as provided. In this report, a case is discussed by giving answers to number of
questions. These have been explained by showing the issues present in the case along with
relevant statue and common law and the analysis of applicability the law.
MAIN BODY
Legal system has legislatives and statutes which are implemented for governing the
activities of individual and organizations exist in a country. It is divided into different categories
such as common and statutory law. The authority having the highest power makes acts which
regulate the actions. In this report, four different contentious have been provided by following
the IRAC method. These have been elaborated below:
Illegally obtained evidence
In this issue, three people were involved viz. Alfie the main accuse, Cheryl (friend of
Alfie) and Cheryl's 13-year old kid. It was observed that Billy was interviewed by the police on
the whole matter. It was being recorded in the mobile phone of one of the officer. He was
questioned about the beginning of the case and his own as well as Alfie's role. Paperwork and
discussion about three boxes were being included. Furthermore, the interrogation proceeded
which continued till the police officers were satisfied with the answers made by Billy. He was a
child having problems with mental conditions and was a student in special needs school. He
mentioned that Alfie used to teach about counting dollars and decibels and many other things.
One thing to consider is that, Billy was interviewed without any warrant. For entering the house,
there has to be warrant. Also, he is a 13 year old kid and according to law, any evidence in oral
form of a minor is not admissible without the presence of a person having the majority and is
related to the kid. Furthermore, it was observed that Billy was confused and unable to give
proper answers to the questions asked by the Judge.
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In this part, s138 of Evidence Act, which is about improperly or illegally obtained
evidence. According to this section, evidence has been procured improperly or by breaching the
Australian law or even as the outcome of impropriety or contravention of Australian law. There
has to be a desire to admit the evidence. Furthermore, even if it has been gathered in improper
way, the level of undesirability of admitting evidence has to be more.
In the case of Kuruma v R [1955], it has observed that evidence was obtained through
communication which was actually done by breaching the applicable regulations. In this case,
the evidence was gathered by unlawful ways and without the will to admit them in the court.
However, court had power to allow or disallow any of the evidence. Before, that the authenticity
and reliability should be judged. By applying this in the case of Alfie, it can be said that Billy's
interview should not be considered as it was all illegal or unlawful.
Power of Judge
In this case, the judge has shown the best he can do for understanding the case. He has
applied the powers conferred onto him by the legal provisions. There were situations, where the
Billy's testimonies were objected by the opposite party stating that his mental condition is not
stable. Furthermore, the judge denied the permission to the prosecutor to play the video of the
interview on the basis of his power. The judge tried to resolve the matter by having the best
evidence which can prove the allegations put on Alfie. Apart from this, judge asked general
questions to Billy to know the whether the oral evidence can be admissible or not. The answers
given by Billy made it clear and judge proceeded accordingly. In addition to this, he further
objected cross-examination as it would take some more time which was a waste.
This can be understood by knowing s189 i.e. voir dire. According to this section, the
main question is about the admissibility of evidence whether by discretion or not or can it be
used against an individual. Along with this, the competence of a witness is also judged on the
basis of observations of court. Apart from this, there is a preliminary question regarding whether
a specific evidence can be accepted as evidence or not. It should be read in conjunction with
s142 which states that, the significance of evidence by considering the depth of the case.
Furthermore, s11 gives general power to court to have the control of the whole case and nothing
is influenced by the provisions of this Act.
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In the case of Adam v The Queen [2001], appellant was held for murder of an off duty
police officer in the incident of scuffle outside a hotel. Crown considered the statements of the
witness made to the police officer. At the trial, it was found that evidence was unfavourable to
the Crown. Hence, the voir dire hearing judge gave the permission for the cross-examination of
the statements given by the witness. This is to determine the validity of the facts. In the case of
Alfie, the judge took the whole matter in is hands but within the legal limits. The considerations
made by the judge such as not admitting Billy's interview video as an evidence. Also, the cross-
examination was objected which was valid. Hence, it can be said that the powers used were
provided in the Australian law. Furthermore, the judge used his discretionary powers to not to
admit the photograph collected from the Facebook page.
Secondary evidence
The video of the interview was provided in the court which was actually a secondary
evidence. There are certain evidence which are primary and should be given the preference.
These include original document, case laws, legislations passed by the courts and similar types.
The lawyer of the prosecution tried to bring this as an evidence which should not be considered
at first because it is not the primary one. There is a provision, that evidence falling in the
category of secondary evidence should be used when the primary is not sufficient or misleading.
Furthermore, the interview captured in that was also unlawful so there was dual problems. There
have been certain cases in which the evidence from the children who have not attained the
majority is not treated reliable. Hence, the whole scenario was not appropriate from the
perspective of law.
According to common law, primary evidence are the reliable and authenticate one which
should be taken into consideration for admitting the evidence in the court. In this, there is no
modifications and adjustments and the document is presented in the original form due to which,
right judgement can be provided by the judge. Furthermore, criminal law defines that activities
involving the criminal factor should be proved by primary evidence.
In the case of Alfie, the evidence provided in the form of video was should not have been
included in the court as it was secondary. The denial by the judge was appropriate as no evidence
should be admit through secondary evidence when there are primary evidence available.
Furthermore, the child should not always be considered as valid evidence as they are unaware
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about the actual outcomes of the case. Apart from this, Billy's statements were confusing which
added more problems to the existing situation. There was no sworn given to Billy before
recoding the video also, there is possibility that these kinds of evidence can be modified
according to the ease. Therefore, the reliability factor is always low.
Changing of statements
In this case, the allegations put on Alfie and the involvement of Billy and Cheryl in the
case should be considered. They provided statements were not felt to be true as these people are
well connected with each other. These parties have modified their statements according to the
condition in order to protect themselves. It can clearly be seen that, Alfie has lied about the
boxes and put the blame on Cheryl. On the other hand, Cheryl has mentioned that she had no
idea about Alfie being involved in activities related to extortion. When the allegations are put the
shopkeepers, and other businessmen who gave the extortion money to Alfie on the account of
preventing the violence. Furthermore, Billy can also be seen lying about the fact that Alfie used
to teach him counting of dollars, decible for the helping him out in eliminating learning disorder.
Also, there are possibilities that Billy lied everything in the interview because of being scared
from the Police as nobody was home when he was being interrogated.
S165A can be included in this which provides that evidence by a child should be judged
only when when there is no pressure from the jury or no mentioning of unreliable witness, warn
the jury about the reduced credibility as compared to adults' evidence. Furthermore, there should
not be any warning about the unreliability of specific child's evidence. Apart from this, there are
some more provisions which should be read for getting the absolute information about this
section.
By applying this in the given case, it can be said that reliability is a huge factor and
nobody should change their statement according to the situation. On considering the statements
of Billy the above-mentioned provisions should be kept in mind. Furthermore, previous cases
should be considered which can be applied for determining the validity of the changing
statements in a criminal proceedings. Also, the best possible evidence should be provided in the
court for finding the appropriate decision which can be accepted by the parties to the court case.
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REFERENCES
M. H., Graham, Handbook of Federal Evidence, (2016)..
J. S., Buckleton, J. A., Bright & D. Taylor, (Eds.)., Forensic DNA evidence interpretation
(2016), CRC press.
J. E. R., McMillan, W. B., Glisson & M., Bromby, Investigating the increase in mobile phone
evidence in criminal activities, (2013). In 2013 46th Hawaii International Conference
on System Sciences (pp. 4900-4909). IEEE.
P., Roberts & J. Hunter, (Eds.)., Criminal evidence and human rights: reimagining common law
procedural traditions, (2012) Bloomsbury Publishing.
E. Campbell, H. Lee & E. M. Campbell, The Australian Judiciary. (2013), Cambridge
University Press.
Online:
Kuruma v R [1995]. 2019. [Online]. Available through :<https://swarb.co.uk/kuruma-v-the-
queen-pc-8-dec-1954/>.
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