Assessment Of Evidence Admissibility And Competency Of Witnesses In Criminal Trial

Please find attached most of the documents we have so far in relation to Tony Arnott and Peter Dunn. It is not necessary for you to have sight of Productions 1, 2 and 3.  If we go to trial this will, of course, be before a jury in the High Court. Could you please look over the documents and prepare a memorandum containing your opinion on whether we should proceed with all or indeed any of the charges. We have yet to have sight of any documents from the defence, but in providing your opinion, you should take account of what you anticipate they are likely to submit in terms of Section 70A of the Criminal Procedure (Scotland) Act 1995. Taking into account the following statements and interview, prepare a memorandum in which you-
 
(a)Discuss potential problems of admissibility and of witness competency/compellability relating to the items of evidence contained in the papers. (In respect of admissibility, you should discuss the admissibility or otherwise of hearsay evidence, confession/interview evidence, real evidence, character evidence, identity evidence and expert/opinion evidence.)

(b)  In the light of the various burdens and standards of proof relevant to each charge, the requirements of sufficiency and corroboration for each charge, the strength of the evidence and any inferences which can be drawn from it, any rhetorical devices that can be used in the case, plea bargaining, the likely response of the defence to the charges and any other factors which you think may help or hinder us, discuss the likelihood of success for the prosecution and whether the charges should be proceeded with.

The memorandum represents the potential issues of admissibility of the evidences along with the competency of witnesses. It further assesses the evidence’s strength and the approach which could be considered with the response of the charges.

Facts

1. The accused (Lauris Gulbis) is accused of attempting sexually aggravated assault on his wife (Agar Gulbis).
2. Agar has scarves of burns on her breasts, using a lit light bulb.
3. There are many evidences to prove that the accused, Lauris has caused all the harm to Agar.  
4. There are also witnesses who support Agar.
5. The convictions had not been disclosed to the Law Society of Scotland.

Issues

• The historic ruling states that a husband could be charged for raping their wives, even when the couple live together.
• The husband who is convicted of the sexual assault can be put into criminal trial.

Assumptions

• According to the Scotland Act of 2009, sexual offences are reformed by the Scots law, which helps with the consent and provides confirmation that from the victim physical resistance is not needed, for the offence to be committed.
• Lauris can be convicted as a rape accused.

Thus, according to this Act, Agar could have complained right in 2015 and the problem could have not increased at all.  

Admissibility and Witnesses

The witnesses are listed below:

• Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, Glasgow
• Mary Moran
• Ronnie Atkins
• Darren McPhee, proprietor of “Darren’s Dodgems
• Mrs Inese Rubenis (Agar’s Mother)

Under Criminal Justice (Scotland) Act 2016, the following will be recorded:

• Arresting time and place.
• Nature of the offence.
• Arresting reason
• By whom the person was advised of rights
• Name
• Date of Birth
• Place of Birth
• Nationality
• Person’s Address
• Reply by the Arrested Person.
• Time and place of the place transported to.

Under Arrest Authorisation from Criminal Justice (Scotland) Act 2016, Lauris initially is ‘Not Officially Accused’ and will be sent for a set of tests, based on the suspicion.

HS rule: The evidence of complaint is admissible pursuant according to s 66 for the Evidence Act. Because, for the evidence of the accused or the sexual assault complainant. It is an exceptional evidence for the HS rule. Only when the complaint is, crisp in the memory, it is admissible. Based on the Evidence Act, the High Court considered the ‘fresh’ hours and days instead of weeks and months (Graham v The Queen at 608 [4]). The complaints that are historical aren’t admissible until it has some restored complainant’s credibility pursuant to s 108(3). Kara Shead, 'Responding To Historical Child Sexual Abuse: A Prosecution Perspective On Current Challenges And Future Directions' (2014) 26 Current Issues In Criminal Justice.

On 20^th March 2018, the reports provided from the Psychiatrist, Diana Donaldson, MD, ChB, PhD, FRCPsych, suggest that an experienced specialist has examined Mrs Agra Gulbis. The therapist states that there are extreme post-horrible pressuring issues that are causing Agar to constantly attempt to suicide. Mrs Gulbis was admitted to Gartnavel Royal Hospital as a mental patient on 26th February 2018, from Gartnavel General Hospital. Her mental wellbeing decayed altogether on 25th February after a visit by her nearby neighbour. According to the analysis of Agar today, the court is reported about her current condition and it is extremely plausible that this will hazardously increase her self-destructive sentiments, regardless of whether she needs to give prove with the advantage of exceptional measures. And Mrs Agar Gulbis is a patient in the hospital named as, Gartnavel Royal, under the Mental Health (Care and Treatment) arrangements based on the (Scotland) Act 2003.

As per 25^th February 2018, the testimony of Dr Edna Evans, MD, ChB, FRCP, the Consultant Physician of Agar from the hospital, Gartnavel General Hospital Glasgow, states that, on 20^th February 2018 at 9.00am Agra Gulbis is confirmed to have had sexual intercourse in the past 12 hours, because the semen traces of her husband were found in her vagina. This proves that Lauris is an accused. On the other hand there were bruises on the forearms and shoulders of Agar Gulbis. These injuries are caused due to forced sexual attempt. Moreover, Agar’s left side of the head was bruised, due to being consistently struck to a blunt instrument. Even burn scars on her left breast is found, which is about 2 inches square. This injury might be caused between two and three years from now, with an object like a lit light bulb. The injury doesn’t seem to be unintentional.

Issues

The testimony of Pat Boyd, BSc, PhD, Police Scotland Forensic Scientist’s report on 28^th February 2018 prove the results against Lauris. For example the DNA test, fingerprints, hair fragments and the blood residues found on the bronze table lamp.

Mary Moran's testimony state that she despised Friday evenings in view of Lauris' yelling, which she could hear through the divider between the two rooms. She didn't get much rest on any Friday night till it was 3.00 am of Saturday. In any case, things went to a genuine head on the nineteenth of February – that was a Friday. She couldn't get the chance to rest. There was yelling and uproar from the moment Lauris entered home from the bar. Sooner or later, Mary heard Lauris say that, when compared ot her secretary, Agar is not good and he sounded more hateful than irate and it was even unpleasant. I enquired about Agar through telephone, but she found no response. Only after 15 minutes she got a call from Agar, which was extremely hard to hear. But, Mary understood that Lauris was snoozing and it was all good now, but still Agar was crying wildly and she was scared and said "Yes, thank you". She then gathered her courage to go round to Agra's house to see she was alright and discovered the police there.

From Mary’s help the police got many letters from a little cabinet. Among several letters, there was a letter from Lauris to Agar, which stated, "The more I hit you, the more you see sense. It's a turn on, as well". The cop swung the letter to Lauris and asked, its meaning, to which Lauris answered, "Exactly what it says". This shows that Lauris agrees that he tortured Agar. Then, the light was found, which was the proof for Agar’s scars.

The testimony of Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, Glasgow state that he had come in contact with Agra Gulbis, in the mid-year of 2015, when Agar Gulbis went to the police headquarters whining that the accused had persuasively taken off her garments to get to her bosom and she had then been scorched there with a light. Agar didn’t give chance to see her bosom and declined to carry out any investigation by the police specialist, because the accused was his husband. She likewise declined to help any charges against his husband saying something like, "I can't. She additionally asserted not to have any companions or family who could encourage her and help her. Agar was identified to have all the indications of a battered lady: old wounds about her body; dull glasses most likely covering a bruised eye. She was just 5 feet tall, and unequipped of taking care of her circumstances. The officer couldn't do anything, as she was not supporting the cops. So the points noted at from Agar’s statement were destroyed after a couple of months, when she didn’t turn up.  

Assumptions

Again on 20^th February 2018, the cop were notified about the incident in Agra Gulbis’ home, where she was found injured.  The accused Lauris was drunk and sat on a seat.

According to the testimony of Constable Hobbins, Lauris was accused for s 48 of the new Criminal Justice (Scotland) Act 2016 (the 2016 Act), for having a barbeque branding iron in his pocket of the denounced's coat. Further, Lauris stated that, "I have to control the bitch, don't I?", he said. At that point, after stopping for a moment and a snicker he stated, "What do you think, you fat bitch. He declined to answer to any questions from the cop. Based on s 32 (4) and (5) of the 2016 Act he was questioned. He accused Agar of assaulting him and to safeguard himself he hurt Agar. Lauris also stated that he has got his name on the barbeque rod and Agar at times like to get burnt, in places which are not visible to the people. He bladed her that, she is not the wee innocent. So, he had burnt her at times and show her who the boss is. Lauris doesn’t find anything wrong in this.

The testimony of Mrs Inese Rubenis shows that her daughter was not happy in her marriage, as she saw her daughter Agar being sad right after giving birth to Bo.

According to the testimony of Darren McPhee, proprietor of "Darren's Dodgems" He speculated that there were kids who were messing around and attempting to hamper speed limiters on the cars. He didn't know why they weren't in school. Agra Gulbis was there with her daughter and were enjoying with each other. All of a sudden, one of the raucous children ran directly into Agra's car. The car was going so swiftly that it cleared out the floor and wound up half over Agra's car. The edge of the windscreen had hit Agra appropriately on the left half of her face and when Darren discovered her she was wedged in, and attempting to ensure herself and her daughter. The children fled and I was extremely stressed, despite the fact that it wasn't my blame. Darren took Agra and the small young lady into my caravan and gave them tea and juice. Her head wasn't draining yet she was somewhat stupified. Darren could see she was better so he gave her a pack of frozen peas to put on it. She said that she didn't have to see a specialist. She was hurt in her shoulder. Agar was not able to move her top down or anything. She was somewhat humiliated and I would not like to drive it. Things were sufficiently awful. Later she felt much better soon. Darren gave her and the small one a lift home after around 60 minutes to relax and was happy that she would not like to take it any further, despite the fact that it wasn't my blame.

Admissibility and Witnesses

However, the main purpose of leading would be to sentence the accused with criminal trials and prove him guilty in the court. All the proofs are against Lauris and Even the statement of Agar after the last incident is cross checked and evaluated, to punish the criminal. Moreover, the evidences against Lauris are non-exculpatory.

The Scotland law has reform its scot law for supporting the sexual offences against women.

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.

Res gestae incorporates articulations and the involved people’s conduct, to observe their activities, which the charges identify with. The statement should be very closely identified with the activity or the situation, such that some portion of the thing being done as opposed to a resulting statement can be framed. Res gestae is communicated comprehensively, along with the unconstrained explanations which are stated when the situation or the event has occurred. Because of its proceeding with affect and prohibitively, concerning just that which was a piece of the demonstration.

From the evidence in court, Lauris is blamed for harming Agar. Statement admissible if:

• There is satisfaction that all the evidences are irrelevant.
• If it is possible that the accused might run self-defence for the defence, 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.
• . On the other hand, when he was 19 years old and while still lived in Latvia, was convicted on a couple of separate charges of sexual assault, which involved burning a lady with a lit cigarette lighters close to her breasts. These convictions were not disclosed to the Law Society of Scotland.
• There is a solid evidence against Lauris, which is distinct and there is no doubt that the presented witnesses have stated any false statement. The witnesses have stated the truth and they have no possible benefit, to tell a lie. To support the statement of the other witnesses, the statement of Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, from Glasgow, plays a prominent role. In spite of the fact that, some of the witnesses like the mother of Agar, Mrs Inese Rubenis and Ronnie Atkins have problem to talk English, but still this won't bar them– if necessary, a mediator might be allotted to help with correspondence. The witness Ronnie Atkins is too young and at the time of incident shew was too young. Even this won’t harm the statement of the witness.

Lauris is held guilty from his own letter which was found by the police from the Gulbis’ house, which states, “The more I hit you, the more you see sense. It’s a turn on, too”.  There are more chances that, Lauris is held guilty. Regardless of whether it was consensual for a couple to do as they wish for satisfying their sexual needs. The statement provided by Mary Moran supports Agar and not Lauris. Thus, the consensual needs to satisfy their needs can be discarded.    

But, Agar has denied that, the sex between them was not consensual and thus it will be considered as Rape according to the Scotland law Act 2009.

Psychiatrist's Report on Mrs. Agra Gulbis

CE, along with the complete information of the individual’s past convictions and their reputation, is highly inadmissible. Because of collateral problem. Therefore, the evidence that Lauris and Agar married each other with their own wish doesn’t support him. Because, right front he birth of Bo, there have been incidents encountered with proof that state that Agar is not happy with Lauris. The first evidence is Agar’s mother who have seen Agar being sad, and have heard Agar telling her that she was hurt by Lauris on her private part. This incident is noted right after giving birth to Bo (Lauris and Agar’s Child). But, her mother don’t know the exact place where she was hurt. CE could however, can be admitted where:

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

Agar is a simple and a humble lady who wants doesn’t want to bring his husband’s name out, to the police for hurting him. She is not a type of lady who takes revenge or wants to control his husband. Her character is clean, which is evident from the neighbour’s word of mouth.

Lauris has no criminal records and is clean. The only thing that is known is that, he has changed after the birth of their kid, which is evident from his behaviour. His failure in career and financial stress has made him violent. He tends to get irritated when their kid cries and gets disturbed. Resulting to blame Agar for not using the contraceptive and ruining his life. This act of behaviour is evident by their neighbour, Mary Moran.

But, it is not known that when he was 19 years old and when he was still lived in Latvia, was convicted on a couple of separate charges of sexual assault, which involved burning a lady with a lit cigarette lighters close to her breasts. To the Law Society of Scotland, these convictions were not disclosed.

OpE, refers to the inferences from the realities as opposed to a straightforward record of what a witness has seen or heard, which is normally unacceptable. Thus, the evidence about Mary Moran on 20^th march 2018 was admissible. But, there are possibilities of creating a twist in the story that Mary was against Lauris and wanted to punish him for personal vengeance.

Real evidence is admissible when properly obtained. Accordingly, to the forensic department’s reports, the DNA, blood test, fingerprints and so on are considered as related and are admissible.

The prosecution holds the evidential and influential burdens. The evidential burdens implies they just require leasr evidences for raising any problem in the court room (Jayasena v R); in any case, influential burden 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).

Based 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.

Testimonies of Experts and Witnesses

The important facts, for the identification of crime the actus reus and mens rea are used to identify the criminal. Thus, the actus reus and mens rea are justified by the prosecution (Lockwood v Walker), In other words, the evidences are proved based on a couple of independent sources (Morton v HMA). The 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).

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

Actus Reus: If 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 prove 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.

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 violence on Agar. Mary, their neighbour is the witness who have heard Lauris mistreating Agar. If this is proved then, Lauris can be sentenced to jail for a long term, as it proves a lot of agitation against Agar. This could be considered as the reason for an unhappy relationship.

Scotland Law to Support Sexual Offenses Against Women

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.

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, and Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, Glasgow are strong proofs that provides corroborated evidence regarding connection of causing harm to the Agar. On the other hand, Darren McPhee, proprietor of “Darren’s Dodgems’s statement also shed some light on the assaults of Agar.

Mens Rea: See Charge 1 reasoning.

If Agar provides 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 medical and forensic reports are the proof for the statements of the witnesses and Agar, against Lauris.

If BJ cannot identify Lauris in court and the barbeque rod, this may be challenging, but it was stated by Lauris himself that it is his barbeque meat branding iron bearing, and also had Lauris’ name on it. On top of this, it had tissues wrapped along with a receipt from John Lewis and a plastic bag. This proof is cross checked, based on the receipt.

Despite, if the evidences are against Agar, there are sufficient evidences to proof that agar was not tortured by Lauris. There are no evidences that show Agar harmed herself. Prosecution may encounter difficulty in defending Lauris. As the sexual offence is a serious crime and has been reformed by the Scotland law Act 2009. The accused will be punished severally. He can challenge since Agar was hiding it earlier about the violence she went through. Description may be questioned as:

• Earlier, Agar hid her troubles from the police.
• She had no one to ask help.
• She felt lonely and helpless.
• She was scared of Lauris.

Weightage provided to the evidences of Agar are high as there are no supporting evidences to help Lauris. Agar is held responsible for the following:

• Hiding about the problems within her marriage.
• She was working on her marriage.

Agar might be question on why she had to go through all the rough phase within their marriage with Lauris. English language can be exacerbate issue here for some of the witnesses.

Theory:

• Lauris harmed Agar, intentionally.
• Lauris have committed all the offences listed in Charge 1, 2, 3 and 4.
• Lauris believed he can do anything with his wife, as she is his property.

Themes:

• Lauris – is a man who is not satisfied with his life, in terms of education failure right after the birth of the kid.
• Lauris– is a man who loved Agar Rubenis and married her.

Story

2015 in summer

• It is evident that Sergeant Elspeth Sawyer, Police Scotland Domestic Violence Unit, Glasgow knew that Agar Gulbis, was facing domestic violence, from her husband.
• He has seen Agar in the police headquarters whining and being scared of her husband.
• He has seen Agar in a devastated situation, with old wounds and bruised eye.
• Agar refused to have medical examination to inspect her bosom and declined to carry out any investigation, against her husband.
• The officer provides the proof that that she was scared of her husband and denied giving complaint against him.
• But, restored complainant’s credibility pursuant to s 108(3) is missing and this statement won’t be considered.

Statutory Provisions Relevant to the Case

20^th February 2018

1. The cop were notified about the incident in Agra Gulbis’ home.
2. Agar was found injured.  
3. The accused Lauris was drunk and was sitting on a seat.
4. Lauris was having a barbeque branding iron in his coat’s pocket.
5. Lauris, referring to Agar stated that, "I have to control the bitch, don't I?",
6. He accused Agar of assaulting him and to safeguard himself he hurt Agar.
7. Lauris accepted that he had burnt her at times to show her who the boss is.

12th March 2018

1. It is evident from Darren that Agar was not hurt badly from the mishap happened when one raucous child ran directly in front of Agra's car.  
2. She was hurt on her shoulder, her head wasn’t bleedingand she couldn’t move her top down or anything.

• It is also evident that after some time she was fine and left the place.

15th March 2018

• Mrs Inese Rubenis, Agar Mother’s statement is the proof that her daughter was hurt in her private parts by Lauris but, she don’t know exactly where.

20th March 2018

• It was evident that, Mary was a witness who heard Lauris say, Agar is not exactly great for him when compared to his secretary and he sounded more hateful towards Agar.
• The statement of Ronnie Atkins’ was also against Lauris, as she heard Lauris hurting Agar.

23th February 2018

1. Finally, Agra Gulbis at Gartnavel General Hospital Glasgow told the truth about Lauris, and the harm that he caused her.
2. The medical reports and forensic reports were the proofs for what Agar had stated against Lauris.

(5) Probability of conviction

Charge 1:

In case, the confession is admitted, there are high chances that Lauris will be convicted. If Lauris argued that Mary Moran is against Lauris and did not possess mens rea, considering that, due to her testimony, he is in trouble.

Charge 2:

There might be little scope for not justifying Lauri’s crime. Moreover, it is possible to raise reasonable doubt by the suggested evidence supporting defences. However, all depends on testifying Lauri’s with the following:

• Lauris can be charged for rape.
• All the witnesses are against Lauris.
• There is no single proof to support the acquisitions of Lauris, against Agar.
  

Charge 3:

Conviction could depend on the conviction in Charge 2, provided there is no lack of evidence to identify the proofs.

Charge 4:

As a result of direct evidence against Lauris, likely conviction is not possible. Ability to do so depends on admissibility of evidence discussed under burdens. Even if admitted, whether reasonable doubt can be raised is unclear since it turns on witness credibility.

Because of direct confirmation against Lauris, likely conviction is sure. Conviction could rely on suitability of proof by the witnesses and the evidences.

(6) Plea Bargaining

Depending on the above charges, it is recommended that Lauris must plead guilty from the Charge 2 and 4, the prosecution can drop the Charge 1. There is no scope for acquittal from the Charge 3.

References

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