Murphy on Evidence

801 Pages·2013·6.39 MB·English

by  Richard Glover

MURPHY ON EVIDENCE
To Aku and Ben Glover
MURPHY
ON EVIDENCE
Th irteenth Edition
RICHARD GLOVER
Solicitor
Senior Lecturer, School of Law
University of Wolverhampton
HIS HONOUR JUDGE PETER MURPHY
A Circuit Judge on the South-Eastern Circuit
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Richard Glover 2013
Th e moral rights of the author have been asserted
Tenth edition 2007
Eleventh edition 2009
Twelft h edition 2011
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v1.0
(http://www.nationalarchives.gov.uk/doc/open-government-licence/open-government-licence.htm)
Crown Copyright material reproduced with the permission of the
Controller, HMSO (under the terms of the Click Use licence)
British Library Cataloguing in Publication Data
Data available
ISBN 978–0–19–966987–5
Printed in Great Britain by
Ashford Colour Press Ltd, Gosport, Hampshire
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
CONTENTS SUMMARY
Preface to the Th irteenth Edition x viii
Extract from Preface to the First Edition x x
Guide to the Online Resource Centre x xi
Table of Cases x xii
Table of Statutes li
Table of Treaties and Conventions lix
Table of Statutory Instruments l x
Table of US Rules of Evidence l xi
Table of Rules of Evidence of International Criminal Tribunals l xii
1 INTRODUCTION TO THE LAW OF EVIDENCE 1
2 THE LANGUAGE OF THE LAW OF EVIDENCE 16
3 THE JUDICIAL FUNCTION IN THE LAW OF EVIDENCE 33
4 THE BURDEN AND STANDARD OF PROOF 71
5 CHARACTER EVIDENCE I: CHARACTER EVIDENCE GENERALLY;
IN CIVIL CASES; EVIDENCE OF GOOD CHARACTER 124
6 CHARACTER EVIDENCE II: EVIDENCE OF BAD CHARACTER 148
7 THE RULE AGAINST HEARSAY I: SCOPE AND WORKING
OF THE RULE 227
8 THE RULE AGAINST HEARSAY II: COMMON LAW AND
STATUTORY EXCEPTIONS 273
9 THE RULE AGAINST HEARSAY III: ADMISSIONS AND
CONFESSIONS 324
10 THE RULE AGAINST HEARSAY IV: THE ACCUSED’S DENIALS
AND SILENCE 376
11 OPINION EVIDENCE 403
12 PREVIOUS JUDGMENTS AS EVIDENCE 435
13 PUBLIC INTEREST IMMUNITY AND PRIVILEGE I:
PUBLIC INTEREST IMMUNITY 458
14 PUBLIC INTEREST IMMUNITY AND PRIVILEGE II: PRIVILEGE 500
15 WITNESSES: COMPETENCE AND COMPELLABILITY; OATHS
AND AFFIRMATIONS 551
vi contents summary
16 EXAMINATION IN CHIEF 587
17 CROSS-EXAMINATION AND BEYOND 628
18 CORROBORATION AND SUSPECT WITNESS WARNINGS 662
19 DOCUMENTARY AND REAL EVIDENCE 677
20 PROOF WITHOUT EVIDENCE 700
Index 7 23
CONTENTS
Preface to the Th irteenth Edition x viii
Extract from Preface to the First Edition x x
Guide to the Online Resource Centre x xi
Table of Cases x xii
Table of Statutes li
Table of Treaties and Conventions lix
Table of Statutory Instruments l x
Table of US Rules of Evidence l xi
Table of Rules of Evidence of International Criminal Tribunals l xii
1 INTRODUCTION TO THE LAW OF EVIDENCE 1
1 .1 What evidence is 1
1.2 Th e nature of the judicial trial 2
1.3 Development of rules of evidence 4
1.4 Classifi cation of rules of evidence 7
1.5 Impact of the European Convention on Human Rights 8
1.6 Recommended further reading 14
1 .7 Questions for discussion 1 5
2 THE LANGUAGE OF THE LAW OF EVIDENCE 16
2 .1 Inconsistency of terminology 1 6
2 .2 Basic terminology of the law of evidence 1 7
2 .3 Terminology of the qualities of evidence 1 8
2 .4 Terminology of the form of evidence 2 1
2.5 Terminology of facts to be proved 22
2 .6 Facts in issue 2 3
2.7 Facts forming part of the res gestae 24
2.8 Facts relevant to facts in issue 26
2.9 Standards of comparison 29
2 .10 Terminology of admissibility and weight 3 0
2.11 Recommended further reading 32
2 .12 Questions for discussion 32
3 THE JUDICIAL FUNCTION IN THE LAW OF EVIDENCE 33
A DIVISION OF FUNCTIONS 3 4
3 .1 Tribunals of law and fact 34
B FUNCTIONS OF THE JUDGE IN LEGAL ISSUES
CONCERNING EVIDENCE 3 5
3 .2 Admissibility 36
3.3 Production and eff ect of evidence 41
viii contents
3.4 Withdrawing the case from the jury 42
C FUNCTIONS OF THE JUDGE: JUDICIAL DISCRETION 4 3
3.5 Inclusionary discretion 44
3.6 Exclusionary discretion: civil cases 44
3.7 Exclusionary discretion: criminal cases 46
3.8 Application of s. 78 50
3.9 Discretion confi ned to prosecution evidence 52
D FUNCTIONS OF THE JUDGE: ADMISSIBILITY OF EVIDENCE
ILLEGALLY OR UNFAIRLY OBTAINED 52
3 .10 General principles of admissibility 53
3.11 Discretionary exclusion of evidence illegally or unfairly obtained at
common law 61
3.12 Exclusion of evidence illegally or unfairly obtained under s. 78 64
3.13 Recommended further reading 69
3 .14 Question for discussion based on R v C oke; Littleton 70
3 .15 General questions for discussion 70
4 THE BURDEN AND STANDARD OF PROOF 71
A THE BURDEN OF PROOF 71
4.1 Introduction 72
4.2 Th e legal or persuasive burden of proof 73
4.3 Th e evidential burden 74
4.4 Th e eff ect of presumptions on the burden of proof 75
4.5 Th e legal burden of proof in civil cases 77
4.6 Th e evidential burden in civil cases 81
4.7 Th e burden of proof in criminal cases 82
4.8 Defence burdens of proof before L ambert 84
4 .9 Defence burdens of proof aft er Lambert 88
4.10 Th e burden of proof of secondary facts 1 02
B THE STANDARD OF PROOF 104
4 .11 Introduction 1 04
4.12 Criminal cases: standard of proof required of prosecution 105
4.13 Standard of proof required of defence 1 08
4.14 Standard of proof of secondary facts 1 08
4.15 Th e standard of proof in civil cases 111
4.16 Th e standard of proof in matrimonial and family cases 117
4.17 Recommended further reading 121
4 .18 Questions for discussion based on R v Coke; Littleton and
Blackstone v C oke 1 22
4 .19 General questions for discussion 1 23
5 CHARACTER EVIDENCE I: CHARACTER EVIDENCE GENERALLY;
IN CIVIL CASES; EVIDENCE OF GOOD CHARACTER 124
A U SES AND DEVELOPMENT OF CHARACTER EVIDENCE 125
5.1 Introduction 1 25
5 .2 Relevance of evidence of character 1 30
B EVIDENCE OF CHARACTER IN CIVIL CASES 132
5.3 Introduction 1 32
5.4 Defamation cases: character a fact in issue 132
contents ix
5.5 Evidence of good character 1 33
5.6 Evidence of bad character 134
C EVIDENCE OF GOOD CHARACTER IN CRIMINAL CASES 137
5 .7 Admissibility and methods of proof 1 37
5.8 Kinds of evidence permitted 1 37
5.9 Rebuttal of evidence of good character 139
5.10 Evidential value of evidence of good character 140
5.11 Direction to jury: generally; more than one accused 141
5.12 Recommended further reading 146
5 .13 Questions for discussion based on R v Coke; Littleton and
Blackstone v Coke 1 46
5 .14 General questions for discussion 1 47
6 CHARACTER EVIDENCE II: EVIDENCE OF BAD CHARACTER 148
A THE CRIMINAL JUSTICE ACT 2003 1 49
6.1 Introduction 1 50
6.2 Basic rule: admissibility of evidence of bad character exclusively
statutory 1 52
6.3 Basic defi nitions 153
6.4 Proof of bad character 159
6.5 Other defi nitions 162
B S ECTION 101: EVIDENCE OF BAD CHARACTER OF ACCUSED 163
6.6 Evidence of accused’s bad character in general: the gateways 164
6.7 Gateway (a): all parties agree to evidence being admissible 1 68
6.8 Gateway (b): the evidence is adduced by the defendant himself or is
given in answer to a question asked by him in cross-examination and
intended to elicit it 1 68
6.9 Gateway (c): it is important explanatory evidence 1 70
6.10 Gateway (d): it is relevant to an important matter in issue between the
defendant and the prosecution 1 72
6.11 Gateway (e): evidence having substantial probative value in relation to
important matter in issue between defendant and co-defendant 1 83
6.12 Gateway (f): it is evidence to correct a false impression given by
the defendant 1 88
6.13 Gateway (g): defendant has made an attack on another person’s
character 1 92
C SECTION 100: EVIDENCE OF BAD CHARACTER OF PERSONS
OTHER THAN ACCUSED 1 96
6 .14 Introduction 1 97
6.15 Requirement of leave 199
6.16 Section 100(1)(a): it is important explanatory evidence 2 01
6.17 Section 100(1)(b): evidence having substantial probative value 201
6.18 Factors relevant to probative value 203
D SAFEGUARDS UNDER CRIMINAL JUSTICE ACT 2003 2 04
6 .19 Introduction 2 04
6 .20 Section 101(3): duty to exclude evidence in certain cases 2 05
6 .21 Section 107: duty to stop case where evidence contaminated 209
6.22 Other safeguards 2 12