Legal Memorandum - Admissibility Of Evidence And Witness Competency

I am now going to charge you under the Misuse of Drugs Act 1971. You are not obliged to say anything in answer to the charge but anything you do say will be noted and may be used in evidence. Do you understand that?

The charge is that between 1 and 13 January 2018 in Terant’s Bar Byres Road and the Eastern Baths Cranworth Street, both in Glasgow and elsewhere in GLASGOW, whilst acting along with another you were unlawfully concerned with the supplying to another or others of a controlled drug, namely cocaine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act 1981 in contravention of section 4(3) of said Act. Do you understand the charge?

I was shifting some cash for a pal, but it looks now like it’s feckin’ drugs. It’s all gone bloody pear shaped! Is there another way out of here?”

The main aim of this project is to prepare a memorandum that represents the potential issues related to the admissibility of the evidences as well as the witness’s competency. The objective is to evaluate the strength of the obtained evidences and the considered approach along with the charges’ response.

Identified Facts:

• Lauris Gulbis is indicted for attempting sexual abuse and assault on his wife Agar Gulbis.
• Agar Gulbis had wrapped up her burn breasts and it was by a lit light bulb.
• To prove that Agar Gulbis had harmed by his husband Lauris, there are lots of evidences caught by police.
• To support Agar, several witnesses were caught.
• The opinions had not been revealed to the Law Society of Scotland.

• According to the statement of historic rule, if a husband is raped his wife then he should be charged even they are living together.
• The husband who attempted sexual assault to be laid into criminal act².

Expectations

• The Scotland Act of 2009 states that Scots law changed the sexual violation law. It helps along with the approval to provide the confirmation for the violation committed from the victim physical resistance is not required.
• In this case, Mr. Lauris Gulbis is indicted as an accused.

So that, based on the above stated Act, Mrs. Gulbis could have filed a complaint against his husband in 2015 and the issue could not have bigger.

The witnesses caught who are favor of Mrs. Agra Gulbis are given below.

1. Inese Rubenis who is mother of Agar Gulbis
2. Ronnie Atkins
3. Sergeant Elspeth Sawyer who is working in Police Scotland Domestic Violence Unit at Glasgow
4. Darren McPhee, who is proprietor of Darren's Dodgems
5. Mary Moran

According to the Scotland Criminal Justice Act of 2016, the below listed things were documented.

• The time and place of arresting
• Type of violence
• The reason for arresting
• By whom the person was advised of rights
• Name of the accused
• Age
• Birth Date
• Birth place
• Nationality
• Address of the Accused Person
• Statement given by the Arrested person
• The time and Place conveyed to

According to the Arrest Authorization from Criminal Justice (Scotland) Act 2016, at initial stage, Mr. Lauris Gulbis is declared as 'Not Accused Officially'. He will be allowed to a set of examinations based on the suspicion.

• Hearsay (HS)

According to the Evidence Act Scotland 2016³, for the complaint, the evidence was admissible pursuant. This evidence is because of Gulbis was accused for sexual assault complaint. So that it is considered as the exceptional evidence for the rule of Hearsay. It is allowable while the complaint is hard in mind.  According to the Act of Evidence¹⁰, the High Court is reflected the fresh hours and days instead of weeks and months (Graham v The Queen at 608 [4]). Until the complaints has some pursuant to s 108(3), the historical complaints are not allowable.

Based on the study, the report is recorded from the Diana Donaldson, MD, ChB, PhD, FRCPsych. He suggested that Mrs. Agra Gulbis was examined by an experienced specialists. According to the statement given by the therapist, Mrs. Agra Gulbis pressurized with many horrible issues. So that she attempted to suicide. On 26/02/2018, Mrs. Gulbis was admitted as a mentally affected patient in Gartnavel Royal Hospital. After 25/02/2018, she was totally affected mentally after visiting her neighbor. Based on the analysis report, Mrs. Gulbis's present condition was reported by the court. It will improve her self-destructive sentiments, regardless of whether she wants to prove along with the advantage of exceptional measures. The treatment was provided according to the Scotland Act, 2003 Mental Health care and treatment arrangements.

Based on the evidence grabbed on 25/02/2018, from Dr.Edna Evans, MD, ChB, FRCP, the Consultant Physician of Agar from the hospital, he provided some literal statements. It says that Agra Gulbis was compelled to have sexual intercourse for the past 12 hours. This was happened on 20/02/2018. He examined that on her hand there was hurt on the forearms and shoulders of Agar Gulbis. While attempting sexual harassment by his husband, these wounds were happened. Her left side head was hurt because, her husband beaten up with a blunt instrument. Her breast was burn about 2 inches by lit light bulb. These wounds might be happened between two to three years from now.  But it seems to be intentionally hurt by his husband.

Identified Facts

The evidence given by Pat Boyd, BSc, Phd, Police Scotland Forensic Scientist. He provided a report on 28/02/2018 to prove against Lauris Gulbis. He collected all the evidences such as hair fragments, fingerprints and even DNA test. On the bronze table lamp, the blood residues were discovered.

The statement given by Mary Moran was recorded. She said that every Friday evenings, Lauris was shouted and it was very clear to hear because, the rooms were divided in simple manner. On Friday nights, she could not sleep peacefully. On 19/02/2018 and it was Friday, Mary Moran could not get rest even on that day. Mary Moran heard the shouting voice and she had seen that Lauris was entered home from the bar and after sometimes, she heard that sayings of Lauris, when comparing to the secretary, Agar Gulbis was not good and Mr. Gulbis shouted very harmful and it was very irritating to her. So she called Agar on telephone but she could not get any response from Agar. After 15 minutes, Agar called her and it was very hard to hear. Then she realized that Agra seem to be well and it was unpleasant and she was cried a lot. Then she said "Yes! Thank you". After that Mary Moran got understood the situation and she was tried to move on to Agra's house to check whether she is good or not, but she found that there was police. With the help of Mary Moran, Police men got several complaint letters from a little cabinet. Among them, a letter found and it was written by Lauris to Agra. In that letter, “The more I hit you, the more you see the sense. It's a turn on, as well". It was caught by the cop and shown to Lauris and inquired him. Then Lauris said that "Exactly what it says". Thus he agreed that he hurt his wife. For the proof of Agra's scars, the light was determined.  

Sergeant Elspeth Sawyer who is working as the Police Scotland Domestic Violence unit, Glasgow provided the evidence. It states that he had come in contact with Agra Gulbis in the mid-year of 2015. At that time. She went to the police headquarters to complain the accused had burnt with the lit light bulb. But she could not get chance to see her dear and she felt to ignore all the complaint and investigation against her husband. I can't. She furthermore declared not to have any friends or family who could energize her and help her. Agar was recognized to have every one of the signs of a battered woman: old injuries about her body; dull glasses probably covering a wounded eye. She was only 5 feet tall, and unequipped of dealing with her conditions. The officer couldn't do anything, as she was not supporting the cops. So the focuses noted at from Agar's announcement were crushed following two or three months, when she didn't turn up.

Exceptions for Hs rule’s

On 20/02/2018, again the police men were determined that in the house of Agra Gulbis, she got injured. And found that the accused Lauris Gulbis was drunk and sat on a seat. Based on the evidence provided by the Constable Hobbins, Lauris Gulbis was accused according to the new Criminal justice (Scotland) Act 2016 and the s 48, to have a barbeque branding iron in his pocket of the denouncer’s coat. Moreover, Mr. Lauris Gulbis said that he had to control the bitch and he don't. In that situation, after end of the moment, a snicker he stated, "What do you think, you fat bitch". But he refused to reply to the questions asked by the Police. According to the s 32(4) and (5) of the 2016 Act, the cop interrogated him. He accused Agar to assault him. To defend him, he hurt Agra. Lauris told that he has got his name on the barbeque rod and Agar at the time like to get burnt on her physical parts that could not be identified by anyone. He cut down her because of she was innocent. So that he continuously hurt her to show who is boss. But Lauris could not accept all these were wrong.

The declaration of Mrs Inese Rubenis demonstrates that her girl was not glad in her marriage, as she saw her little girl Agar being tragic directly in the wake of bringing forth Bo.

As indicated by the declaration of Darren McPhee, proprietor of "Darren's Dodgems" He theorized that there were kids who were messing near and endeavouring to hamper speed limiters on the autos. He didn't know why they weren't in school. Agra Gulbis was there with her little girl and were getting a charge out of with each other. Out of the blue, one of the rambunctious kids ran specifically into Agra's auto. The auto was going so quickly that it got out the floor and ended up half-finished Agra's auto. The edge of the windscreen had hit Agra fittingly on the left 50% of her face and when Darren found her she was wedged in, and endeavouring to guarantee herself and her little girl. The kids fled and I was to a great degree worried, regardless of the way that it wasn't my fault. Darren took Agra and the little young woman into my convoy and gave them tea and juice. Her head wasn't depleting yet she was to some degree stupefied. Darren could see she was better so he gave her a pack of solidified peas to put on it. She said that she didn't need to see a master. She was harmed in her shoulder. Agar was not ready to move her best down or anything. She was fairly mortified and I might not want to drive it. Things were adequately horrendous. Later she felt much better soon. Darren gave her and the little one a lift home after around an hour to unwind and was cheerful that she might not want to take it any further, regardless of the way that it wasn't my fault.

Be that as it may, the primary motivation behind driving is sentence the blamed with criminal preliminaries and demonstrate him liable in the court. Every one of the confirmations are against Lauris and Even the announcement of Agar after the last occurrence is cross checked and assessed, to rebuff the criminal. Also, the confirmations against Lauris are non-exculpatory.

Recently the Scotland law decided to reform its scot law for supporting the sexual offences against the women.

Exceptions for Hs rule’s:

• Res gestae: Scotland law’s utilized statements.

Statutory: Section 1 of the Sexual Offences (Scotland) Act 2009, s 48 of the new Criminal Justice (Scotland) Act 2016. Lauris was presented in the court under the Section 28(2) or (3), from the Criminal Procedure (Scotland) Act 1995, Under Section 288C of the Criminal Procedure (Scotland) Act 1995, Lauris can only take a lawyer and cannot defend himself as a lawyer. Under Section 18 from the Criminal Procedure (Scotland) Act 1995, external body parts impressions and prints of the suspect will be collected based on Section 1 2016 Act. Based on the Criminal Justice (Scotland) Act 2016, Lauris who is the suspect will be provided the right to have legal advice, prior to the Scotland Police starts questioning.

• Statements by accused
• Consensual Act,
• Reply to charge.

The gestae incorporates articulations and involved peoples conduct to observer their activities which the charges identify with. The statements must be very closely identifies with situation and activity such that some portion of the thing being done as opposed to a resulting statement can be framed. It is communicated comprehensively along with then explanations of unconstrained which are stated when the situation and event has occurred. Because of its proceeding with prohibitively, concerning and affect must that was a piece of the demonstration.

• There is satisfaction that all the evidences are irrelevant.
• If it is possible that the accused might run self-defense for the defense, against all the Charges.
• That the accused, is a qualified lawyer. But, he can’t select to defend himself under the Section 288C of the Criminal Procedure (Scotland) Act 1995.
• At the same time, the accused Lauris was survived in Latvia. Even after he was 29 years old. For two different charges of sexual assault, he was sentenced, for burning a woman with a lit cigarette lighters close to her breasts. These opinions were irrelevant to the Law Society of Scotland.

(2) Witnesses

Based on the examination on statements provided by witnesses, there was no doubt and all were said unique statements⁹. These are strong evidences against Lauris. So the statements of witnesses proved the truth and they don’t have any intention or benefit to lie. The statement of Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit plays an essential role to support other witnesses and their statements. But not all the statements seems to be good. The statements of Mrs. Inese Rubensis and Ronnie Atkins have communication problem while speaking in English. But it could not affect them. Because mediator can be recommended to help them. Ronnie Atkins is young witness while this incident was happening. But it could not affect the witness statement.

But Lauris Gulbis was feeling very guilty about his letter that found by Police. The letter states, “The more I hit you, the more you see sense. It’s a turn on, too”. So that, there are several possibilities presented to feel guilty. The statement said by Mary Maron helps Agar but not Lauris. But Agar Gulbis ignored that the sex relationship between them was considered as marital rape under the Scotland Law Act 2009.

(3) Character Evidence (CE)

According to the statements recorded by past convictions of individuals and their reputation, is highly prohibited because of collateral problem. As Lauris and Agra were married without their family's support, the evidence could not help them. After the birth of Bo, there are lots of incidents prove that Lauris didn’t like his marriage life. Agra's mother had seen that Agra was hurt on her private parts because of Lauris's behavior. This was caught as the character evidence of Lauris. This incident was happened when she gave birth to Bo. But her mother could not recognize where she was affected exactly. Thus, CE was allowed where,

1. Has issues in his conduct and can be charged (s101(2) CP(S)A1995);
2. Committed Rape.

Agra Gulbis is a very quiet and simple woman and she don’t want to blame her husband's name even he hut her a lot. She don’t want to take revenge on her own husband and even she don’t want to control him. According to the statement of neighbor, Agra's character is clean.

Even Lauris Gulbis has no records regarding criminal cases. The main thing is that he was changed after Bo's birth. So this the character evidence of Lauris. As he faced lots of issues in his career and financial stress, he became too arrogant. When his kid shouted, he got irritated and disturbed. So that he turned to his wife to show his anger. Then he started to scold Agra for ruining his life. This behavior of the Lauris, evidenced by Mary Moran.

At the same time, the accused Lauris was survived in Latvia. Even after he was 29 years old. For two different charges of sexual assault, he was sentenced, for burning a woman with a lit cigarette lighters close to her breasts. These opinions were irrelevant to the Law Society of Scotland.

(4) Opinion Evidence (OPE)

The conclusions from the realities as against to the witness based on the hearsay evidences or seen evidences that are unacceptable are known as Opinion Evidence⁷. So that the statement provided by Mary Moran on 20/03/2018 was acceptable. But there was more possibility to create and change the concept of the story that Mary Moran was acting against Lauris. She wanted to give punishments for his personal revenge.

(5) Real Evidence

If the statements from witnesses are obtained properly, then there is no issue in collecting real evidence. As the Digital forensic⁴ department provided the fingerprints, blood test and DNA test are allowed as the real evidence.

Generally the prosecution maintains the influential and evidential burdens. The evidential burdens are implies they just requrie the least evidences for increasing any problem in the court (Jayasena v R); The influential burden are generally requires to demonstrate a definitive probandum past sensible uncertainty (Lambert v HMA). On the off chance, the jury is left with question which are more than 'stressful/ whimsical' and it must be cleared (Irving v Minister of Pensions).

• Consensual Act

Depends on the admissibility, the evidences which supports the defence are as follows:

• Lauris’ statement regarding barbeque rod used on Agar.
• Lauris’ behaviour towards Agar, by her neighbour.

(2) Corroboration

The important facts, crime the actus reus and mens rea identification are used to identify the criminal. Thus, the actus reus and mens rea are justified by the prosecution (Lockwood v Walker), the evidences are proved depends on a couple of independent sources (Morton v HMA). Basically evidence is not required to be the direct evidence, however it could be circumstantial (Smith v Lees).

Under Section 7 Authorisation refused, Lauris wil be charged with the offence and can be detained from bail conditions (under Section 28 (1A) Criminal Procedure (Scotland) Act 1995).

Charge 1:

Assaulting Agra Gulbis, then on her severe injury on her breast forced against the lit light bulb.

Actus Reus: If Mary Moran refuses that there were any domestic assaults taking place in the next door, then Lauris could be freed.

Mens Rea: If Mary Moran’s statement is connected with the other witnesses, then there is need to produce new and evident proof, to sentence punishment to Lauris.

Identification: If Lauris confessed then, no corroboration is needed (Stewart v HMA).

Charge 2:

Charge of, Clydebank, on 19^th or sexual offence on Rubenis or Gulbis, at the Flat 2/R 18 Afton Terrace 20th February 2018. This supports the Section 1 of the Sexual Offences (Scotland) Act 2009.

Actus Reus: The Agar proves that she was not ready to have sexual relationship with Lauris due to his behaviour, then the sexual relationship between the couple will be considered as rape.  

Mens Rea: If the reports conforms that the injuries on Agar were consistently with being forced to have sex, then Lauris is held accountable can be convicted.  Lauris will be arrested under Section 288C of the Criminal Procedure (Scotland) Act 1995, for sexual offence. He will be informed about the court proceedings and it has to be conducted with the help of a lawyer only.  Under Section 18 from the Criminal Procedure (Scotland) Act 1995, Lauris’ palm prints, fingerprints and other impressions and prints of the external body parts will be collected is arrested under Section 1 2016 Act.

Charge 3:

Repeatedly striking on Agar on 20^th February 2018, at Flat 2/R 18 Afton Terrace, Clydebank, using a table lamp, on her severe injury.

Actus Reus: If Lauris’ behaviour towards Agar is proved to be disrespectful then he can be caught hold for domestic violence⁵ on Agar. Mary, their neighbour is the witness who have heard Lauris mistreating Agar. This could be considered as the reason for an unhappy relationship.

Mens Rea: If the forensic report are proved that the lamp was used for hurting constantly on Agar, then he is convicted for sure.

Identification: The reports have been identified to have intentional force and harm on Agar, by constantly striking on her.

Charge 4:

Near 18 Afton Terrace, Clydebank, Lauris had an offensive weapon, such as barbeque meat branding iron which had his name on it and this contrary to the Section 47 (1) of the Criminal Law (Consolidation) (Scotland) Act 1995.

Actus Reus: The statement of the witness Mary Moran, Police Scotland Domestic Violence Unit, Glasgow and Sergeant Elspeth Sawyer, are strong proofs that provides corroborated evidence regarding connection of causing harm to the Agar.

Mens Rea: See Charge 1 reasoning

If Agar gives her oral evidence and is capable of convincing the cops that Lauris had never harmed her then, there will not be any case against Lauris despite of other evident proofs.

Identification: The forensic and medical reports are the proof for the statements of the witnesses and Agar, against Lauris.

(3) Sufficient Evidences:

We have both evidences like sufficient to prove that against Agra as well, some evidences to prove that she was not tortured by her husband. But we don’t have evidences to prove that Agar had hurt herself. To protect Lauris, the prosecution make some difficulties. Under the Scotland law Act 2009, the sexual offence crime was reformed⁶. For this case the accused person should be sentenced. The police man can encounter even the violence matter was hidden by Agar she went through. The interrogations based on the description are given below.

1. At earlier, Mrs. Gulbis hides all her problems from the cop.
2. No one is ready to help at her situation.
3. No one is there to share her problems.
4. She was afraid of Lauris behaviour.

As the statements given by Agar Gulbis has higher weightage than the support provided to the Lauris. The responsibilities of Mrs. Agar Gulbis are listed below.

The problems in marriage life are hidden within herself   

She should be expressed her problem to police what problem she went through. At the same time, English language is insufficient to support the victim.

(4) Oratorical Devices

• Analysed concept:
  1. Lauris Gulbis intentionally gave sexual abuse to his wife Agar Gulbis
  2. As listed in the Charge 1, 2, 3 and 4, Lauris Gulbis have done all the crimes
  3. Lauris believed that he has right to do anything on his wife. Because she was his marital property.
• Themes:
  1. Lauris: He is a man who had stressed on his career and financial matters. He scolded his wife even their baby cried. His anger increased after giving birth to Lauris.

(5) Possible Punishments

Charge 1:

The crime done by the Lauris Gulbis is not justified with valid evidence. So there are several chances to support the crime has done by Lauris. These are based on the testimonials done with Lauris that are given below.

1. As he was attempted rape against his wife, he might be sentenced
2. The evidences and witnesses are not supporting to Lauris
3. Lauris don't have a proof against Agar.

Charge 2:

 If the problem is declared by Lauris or admitted his guilt, then there will be several possibilities that he will be punished.

Charge 3

In this case, all the evidences are against Lauris so that likely conviction is impossible. So the inability will become burden to admit the discussed evidence.

Charge 4:

The punishment might be depends upon the Charge 1. Because he don’t have proper⁸ identity proofs.

(6) Petition Negotiating

According to the charges explained in the above, Lauris should implore guilty from the charges 1 and charge 3. The Charge 2 can be dropped out by the Prosecution, but not sure that Charge 4 will convict Lauris.

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