Saturday, November 1, 2014

If You Don't Know The Law, Don't Talk........

Hantu Laut

If you don't know the law, don't talk!

Obviously, the defence lawyer is talking cock here and Malaysiakini talking bigger cock here.

The whole idea is to mislead Malaysians, the unthinking society.

Malaysians are easily swayed by what they read or hear.

The CJ is right here.

Malaysia is not short of half-past-six lawyers.

Illegally obtained evidence is also called "fruit of the poisoned tree"

What constitutes illegally or improperly obtained evidence?

It is a fundamental principle of English law and a requirement of the European convention of Human Rights that in a criminal trial, the prosecution bears the burden of proving the guilt of the accused. Article 6 European Convention of Human Rights requires a presumption of innocence on the accused. To prove guilt, the prosecution must obtain evidence to support their position. The prosecution may resort to improper means to gather evidence in support of their position especially if obtaining evidence in conventional ways proves unfruitful.  

Is all evidence admissible?

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favour the victim and ensure a fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen. The rationale for this approach is that the court considers the primary aim of the justice system to be the discovery of the truth and the unearthing of guilt. This is prioritised above the protection of the accused’s right to private life. Nevertheless the courts have discretion under s.78 Police and Criminal Evidence Act 1984 to exclude evidence which lacks relevance and which might, by its admission, endanger trial fairness. This contrasts with the exclusionary approach of the courts of the USA to illegally obtained evidence, which prioritises the need to deter the police from unconstitutional behaviour. Although the UK courts do not wish to encourage illegally methods to obtaining evidence on the part of the police, discovering guilt is prioritised. 

Real and confession evidence

Trial fairness may be endangered by the admission of unreliable evidence. English case law distinguishes between illegally obtained real and confessional evidence. Improperly obtained confession evidence, such as confessions obtained under torture contrary to article 3 ECHR, can be seen as inherently unreliable, however real evidence, although improperly obtained, such as evidence obtained through searches or covert listening devices, will remain reliable.

Our laws are mostly based on the English Law.  

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