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General Principles of Criminal Law

Friday, September 18, 2009


12:51 PM

Outline for the Week of September 13, 2009


Text(s): Walker & Walker's English Legal System
I. The Role of the Jude in Criminal Proceedings- i.e.. Trials on Indictments

Judge Alone Cases

Judge and Jury Cases

Both

Tribunal of law

Tribunal of law only

Tribunal of fact

Gun Court

Gives interpretations and directions of the


applicable laws to the jury- the jury
summates the evidence

Criminal law particularly in a Commonwealth


Caribbean territory like Jamaica that does not
have a Criminal Code and is part of the
common law legal system relies heavily on case
law as a source of law, as a result judges play
an integral role in the process. ( Oftentimes they
have been criticized for making law see Shaw v
DPP and Lord Millet in R v K)

Judges of the Supreme Court go on


circuit to parishes and have jurisdiction
to try all treasons, felonies and
misdemeanours committed within that
parish (s. 29 Judicature Supreme Court
Act - JSCA)

Responsible for ensuring that Rules of


Procedure and Evidence are complied with

Acts as mediator between prosecutor and


defense attorney

II. Role of the Resident Magistrate


a. Trial of offences summarily in exercise of special statutory summary jurisdiction (Various statutes will create this jurisdic tion)
b. Trial on indictment of certain indictable offences by virtue of either s. 268 J(RM)A or the statute creating the indictable offence see DPP v. Sanchez-Burke
[1977] 1 W.L.R. 903
c. Before trial commences the RM must make enquiry to ascertain whether offence within his jurisdiction. If so he makes an order for indictment which must
be endorsed on the information and signed by the RM s. 272 J(RM)A.
d. If offence is beyond his jurisdiction he makes an order for PE which must be similarly endorsed and signed s. 272 J(RM)A
e. RM may order indictment for any offence within his jurisdiction a) charged in the information; b) in addition to the charge i n the information or c) in
substitution for any offence charged in the information. Counts may therefore be added to the indictment as necessary See s. 273 J(RM)A.
f. The magistrate has the power to stay the PE and treat matter as one for trial s. 276 J(RM)A
g. The RM acts in the capacity of both judge and jury therefore he decides questions of law and facts , then applies the law to the facts of the case to
arrive at a verdict.
h. In preliminary matters he is responsible for:
i. Granting bail;
ii. Issuing summons;
iii. Issuing warrants for arrest; etc
i. Ensures that Rules of Procedure and Evidence are complied with
III. Trials on Indictments, Conduction of
a. Arraignment (See Page 630 of Walker & Walker's English Legal System)
i. Consists of 3 parts:
1) Calling the accused, by name to the dock
2) Reading the indictment to the accused, usually done by the clerk or Registrar.
3) Asking accused how he pleads to the indictment, i.e. guilty or not guilty (See Courses Open to the Accused below)
ii. If counts are in the alternative, the accused cannot, in law, plead guilty to them both, though he may plead not guilty to th em both.
iii. Procedure:
1) The 1st count should be read to him, and if he pleads guilty, then there is no need to read the alternative count to him. If however, he pleads
not guilty to the 1st count, then the 2nd count should be read to him separately and his plea taken on it, e.g., larceny and receiving: R v. Boyle
(1954) 38 Cr. App. Rep. 111.
2) Arraignment must be between the registrar and the accused, unless he is deaf, mute or refuses to plead. Defendant must plead personally.
3) R v. James Ellis (1973) 57 Cr. App. Rep. 571 - accused must answer personally to the charge, unless deaf, insane, mute or refused to plead. He
must plead personally and not through counsel or any other person on his behalf. It will be a mistrial where the accused himself, has not
pleaded.
4) But note R v. Williams [1977] 1 All ER 874- failure to arraign the accused did not, per se, constitute a material irregularity in the trial where the
trial had proceeded, albeit erroneously, on the premise that the prisoner had, on a previous occasion, pleaded not guilty.
iv. Courses open to the accused:
a) Standing mute- The refusal of the defendant in a trial on indictment to plead to the indictment. A jury must be empanelled to say whether the
defendant is:
i) Mute by Malice- willfully refusing to plead. If the verdict of the jury is mute of malice the court may order a plea of not guilty to be
entered.
ii) Mute by Visitation of God- suffering from some physical or mental impairment that is preventing him from pleading. If the verdict of the
jury is mute by visitation of God, the jury may then go on to consider whether the defendant is unfit to plead.
b) Fitness to plead
i) ...
c) Motion to quash the indictment
d) Plea to the jurisdiction
e) Plea of autrefois acquit
i) Previously acquitted; an accused cannot be tried for a crime because the record shows he has already been subjected to trial for the same
conduct and was acquitted.
ii) Refers to an accused who cannot be tried for a crime because the record shows he has already been subjected to trial for the same
conduct and was acquitted.
An acquittal is a decision by a judge that a person accused of a crime is discharged of it, found not guilty.
Once acquitted, a person cannot be tried again for the same offence.
f) Plea of autrefois convict

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f) Plea of autrefois convict


i) If the accused maintains that the previous trial resulted in conviction, he or she pleads "autrefois convict."
g) Plea of guilty to an alternative offence
h) Plea of guilty
i) Plea of not guilty
b. Empanelling of Jury
i. Qualification of Jurors
1) Throughout the region matters related to the jury are governed by Jury or Juries Acts:
a) s.2(1) Jury Act: Every person qualifies to serve on a jury if:
i) He is not less than 18yrs. Old and not more than 65; and
ii) His name is on the current official list for elections; and
iii) He resides in Jamaica.
b) s.2(2): A person is disqualified from serving on a jury if:
i) He is not a commonwealth citizen; or
ii) He cannot speak, read and write English; or
iii) He is at the date of being required to be a juror:
Awaiting trial in R.M. Court for an indictable offence; or
A person in respect of whom a preliminary enquiry into an indictable offence is pending committal or trial.
iv) A person convicted of treason or any there offence for which he has been sentenced to imprisonment for more than 6mths. Unless
he has received a pardon.
ii. Obligation to Serve on Jury
1) s.6(1): No person whose name is on the jury list is entitled to be excluded from attendance at court on ground of disqualification or exemption,
other than illness, not claimed before final settlement of list. But Judge, R.M. or coroner may excuse him if satisfied that:
a) he is disqualified /exempt under provisions of Act; or
b) for reasons apparent to judge, person should be excused.
2) s.6(2): Savings clause - no verdict /findings in any proceedings will be invalidated by reason only of fact that person disqualified /exempt from so
serving, served on jury in said proceedings.
iii. Empanelling in Jamaica
1) Each term Registrar Supreme Court prepares panels of jurors for each circuit court from the jury list of each parish
2) Registrar issues to Commissioner of Police a Writ of Venire Facias with names of jurors forming the panel or panels. The jurors for each case are
chosen from the panel
3) The presiding judge may excuse a juror from sitting for good cause e.g. ill health
4) Jurors for a case are chosen at random
iv. The Array (Number of Members in a Complete Jury)
In Jamaica for murder (whether capital or non-capital) and treason, 12 jurors form array, in all other cases it is 7- s. 31(1) & (2) Jury Act.
Jury shall not be reduced by more than one:
Where in course of trial, juror dies or is discharged by court, through illness or other sufficient cause, jury shall nevertheless, once not
reduced by less than 1, and be considered as properly constituted, and trial proceed and verdict given: s.31(3).
v. Challenges (pg. 353 of Walker & Walker's English Legal System)
1) Peremptory Challenges
a) Are made to the polls (individual juror) as he is about to be sworn, without giving a reason
b) Challenge must be made as the juror comes to the book to be sworn and before he begins the oath, otherwise it will be too late; however
Judge has a discretion to allow it- R v. Harrington et al (1977) 64 Cr. App. R. 1
c) In Jamaica- s. 33(1) & (2) Jury Act -each defendant has 7 for murder/treason and 5 in other cases. The prosecution has 7 or 5 for each
defendant as the case may be.
2) Challenges for Cause
a) Challenges for cause must be for some specific reason which must be alleged and proved
b) Both the defence and prosecution can make as many such challenges as they can prove
c) The grounds for challenges for cause were created at common law and have been given statutory foundation in some territories.See for
e.g. Belize- s. 24(2) and T & T- s.23(A)
d) In some jurisdictions it may be made either to the array (all jurors called to the jury box)- See for e.g. Jamaica s. 48 or to the polls
(individual jurors)- See for e.g. Jamaica s.33(4)
vi. Talesmen/Foreman
1) Where requisite number of jurors do not appear or there is an insufficient number remaining after challenges, the Court is empowered to add to
the jury as many bystanders (talesmen) as necessary. s. 43;
2) It must be ensured that these talesmen are not disqualified or exempted by law - See s. 43
3) By common law it is impermissible to have a jury totally composed of talesmen- R v. Solomon (1958) 42 Cr. App. R. 9
4) Jurors must elect a foreman and if no agreement, Judge may appoint foreman- See for e.g. s. 34(1)
vii. Function of the Jury
1) The jurys primary function is to decide questions of fact
2) Then apply the law to the facts as directed by the judge and from there to arrive at a verdict either for the offence for which the Accused is
charged or upon possible verdicts for other alternative offences that are left to them for their consideration. Example Murder and Manslaughter
c. Course of the Trial (pg 639 of Walker & Walker)
i. Publicity
ii. Procedure at the hearing
1) Speeches
a) Prosecution's Case
i) Opening statements made by Prosecution
ii) Witnesses
One. Calling of witnesses
Two. Cross-examination by Defence
Three. Re-directing by Prosecution
b) Defence's Case
i) 'No Case to Answer'
ii) Opts not to say anything
iii) Opens his/her case:
One. Opening statements made by Defence
Two. Witnesses
First. Calling of witnesses
Second. Cross-examination by Prosecution
Third. Re-directing by Defence
2) Burden of Proof (see below)
3) Conclusion of Case (Summation)
a) Judge must advise jury on:

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3) Conclusion of Case (Summation)


a) Judge must advise jury on:
i) their function as judges of fact.
ii) his function to advise them on the law.
iii) Burden and standard of proof.
iv) definition of offence charged, looking at ingredients of the offence.
v) need for corroboration, etc.
vi) any defence raised; if there is evidence giving rise to another defence, though not depended on by accused, judge must stillleave
that other defence to jury.
vii) It is not the duty of the judge to advise jury on defences which cannot be raised on the facts of the case: R v. Walters (1968) 13 WIR
354
viii) Special directions must be given to certain types of evidence such as visual identification if the correctness of id is an issue R v
Turnbull [1977] 1 QB 224
b) Retirement of Jury
i) Nothing New after Retirement of Jury
ii) Even though jury have retired to consider their verdict, jury may ask judge questions on matters of law, or to remind them ofthe
evidence.
iii) If they ask about a point on which no evidence was led, judge must tell them there is no evidence on the matter and that theymust
decide case on evidence heard.
iv) There is an absolute rule however, that no further evidence should be adduced before the jury after they have retired to consider
their verdict R v Owen (1952) 2 QB 362.
c) Retirement of jury until verdict
i) There are 3 interconnected rules to ensure that nothing untoward takes place in the jury room:
One. Jury must stay in custody of jury bailiff, who is to permit no one to enter jury room or to communicate with them.
Two. Jury must not leave jury room without judges permission.
First. R v. Neal (1949) 2KB 590 - where jury were permitted to leave jury room and custody of jury bailiff, after retirement, so
serious was the irregularity and departure recognized by law that court had no option but to quash the conviction.
Three. Jury must not separate save with the permission of the judge. Such permission should only be given in cases of evident
necessity.
N.B. Consequence of failure to adhere to these rules is that judge may discharge the offending juror or the entire jury. On appeal,
conviction may be quashed.
ii) Judge may discharge jury at any time after one from hour from 1st retirement, where he is satisfied that there is no reasonable
probability that they will arrive at a verdict: s.45(1) Jury Act
iii) It is for judge alone to decide whether the need exists for discharging jury. His decision is not subject to review or appeal: s.45(2); R
v. Gorman [1987] 2 All E.R. 435
d) Discharging a Juror
i) Judge may order discharge of juror in circumstances of death, illness or other sufficient cause: s.31(3) Jury Act.
ii) Court of Appeal can review exercise of judicial discretion to discharge a juror: R v. Hambery [1977] 1 QB 924
4) Verdict
a) The jury must deliver their verdict by the foreman in open court.
b) Where foreman delivers verdict in presence of jury and hearing, they do not express their dissent, it is conclusively presumed that they
assented to the verdict.
c) If there is more than accused, a separate verdict must be returned in respect in respect of each.
d) Note general verdict, guilty or not guilty on all counts; partial verdict, guilty on some counts, but not others; or not guilty of offence
charged, but guilty of some other offence, eg: alternative counts.
e) Special verdict, where jury decides on those questions of fact which judge puts to them, but judge draws the legal conclusion from facts as
found.
f) Alternative Counts
i) An indictment sometimes charges an accused with 2 offences in the alternative. Thus, an accused may be charged, both with larceny
of certain goods and receiving of same goods.
ii) Accused however, cannot be convicted of both offences. If he is guilty of one, he cannot be guilty of the other.
iii) If jury convicts accused on one alternative count, they should be discharged from returning a verdict on the other. The reason here
lies in the fact that if jury were asked to return a formal verdict of not guilty, the court of appeal will be able to alter the verdict to a
conviction on the alternative count.
g) Premature Verdict
i) The jury must listen to the whole summing-up unless they wish to give a verdict of not guilty: R v. Young
h) Receiving the verdict
i) Once a jury has returned a verdict, the judge has no discretion to refuse to accept it, unless it is:
ii) ambiguous; or
iii) inconsistent; or
iv) not open to the jury on the indictment.
i) Incomplete verdicts
i) A verdict is not complete until a jury has dealt with all possible verdicts, open to them, on the indictment.
ii) If judge discharges jury before jury have completed verdict, such discharge is a nullity.
iii) R v. Carter & Carnavan (1964) 48 Cr App R 122
j) Amendment of verdict
i) The jury may, before verdict is recorded, or even promptly after, rectify their verdict and it will stand as amended.
ii) This may be done after D has been discharged out of the dock, on a supposed verdict of acquittal, if it is done before jury have left
the box.
N.B. It is essential that jury must be able to bring in their verdict, free from coercion, duress and the like.
IV. Classification of Offences
a. By Mode of Trial
i. Indictable
1) A Trail on Indictment (Supreme Court different from Resident Magistrate)
2) All common law offences
3) All statutory offences unless statute provides otherwise
4) Generally more serious offences
ii. Summary Trial- Trial before Justices or RM
1) Trail on Information/ Complaint
2) All statutory offences made triable specifically on information
3) Method used to try minor offences
4) Also used to try some serious offences
iii. Hybrid/ Either way Offences
1) Offence creating statute states offence can be tried summarily (on information) or on indictment
2) Sstatute may indicate that a common law offence may be tried either way- Some driving offences see: Road Traffic Act

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2) Sstatute may indicate that a common law offence may be tried either way- Some driving offences see: Road Traffic Act
3) In Jamaica the Prosecution elects the mode of trial
b. By Category of Offence
i. Treason
ii. Felonies
1) A category of crimes, ranking in seriousness, below treason and above misdemeanour, i.e., all offences at common law or by statute, which are
neither treasons nor misdemeanours. Sometimes the felonious status of the offence may be determined by reviewing the definition in the
statute or by assessing the severity of the penalty
2) The rule in Smith v. Selwyn: an action for damages based upon a felonious act on the part of the defendant, committed against the plaintiff, is
not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted. The proper
course for a court to adopt in such a case is to stay further proceedings in the action until the defendant has been prosecuted. NB: This is no
longer an absolute rule. The court is now required to balance justice between all the parties and consider all the circumstances.
iii. Misdemeanours
1) Differences between Felonies and Misendeamours
a) During trials for felonies the accused must be present throughout the proceedings unless their presence retards proceeding or the accused
is voluntarily absent e.g. absconding; while for trials on misdemeanours the accuseds presence is strongly promoted but not required.
b) The rules as to parties are different. While felonies may involve principals in the 1st, 2nd degree etc., an accessory before and after the fact,
in the case of a misdemeanour, there are no accessories or parties called principals. However aiding & abetting is now extended to
misdemeanours i.e. accessory before the fact.
iv. Arrestable or Non-Arrestable
1) Some jurisdictions have reclassified felonies and misdemeanours into arrestable and non-arrestable offences
2) Arrestable offence is one where penalty is imprisonment for at least 5 years or a fixed ( mandatory) term of imprisonment (See for e.g. Bdos
CL(AO)A, 17/92 and Tdad & Tgo CLA, Chap 10:04)
3) In these territories a private citizen may arrest without warrant anyone whom he suspects is in the act of committing an arrestable offence or
has committed a particular arrestable offence. This in addition to his common law power to prevent a breach of peace.
4) With regards to police officers , in general , they have the power to arrest without warrant anyone who they suspect with reasonable cause is
about to commit an indictable or arrestable offence or whom they have suspected has committed such an offence.
5) Generally only police officers have powers of arrest without warrant for summary offences. An officer may usually arrest any person whom he
finds in the Act of committing a summary offence. See S15 Constabulary Force Act .
6) Powers of Arrest
a) Without warrant are wider in respect of felonies than misdemeanours. Based on principles in the case of R v. Owen Sampson, a constable
has power at common law, to arrest without warrant on reasonable suspicion of a felony having been committed; but he has no power to
arrest for a misdemeanour, unless a breach of the peace has been committed in his presence or there is reasonable ground for supposing
that a breach of the peace is about to be committed or renewed in his
V. Burden of Proof
a. The expression seems self explanatory as it is the obligation to prove or the onus of proof. There are two principal kinds of burdens:
i. BOP or Legal Burden
1) may be defined as the obligation imposed on a party by a rule of law to prove a fact n issue or the legal obligation imposed on a party to satisfy
the factfinder, to a specified standard of proof that certain facts, that is, the facts in issue, are true.
a) The facts in issue are determined by reference to the substantive law, in criminal law often by reference to the elements of the offence.
2) Standard of Proof depends upon whether the proceedings are criminal or civil
a) Criminal Beyond a Reasonable Doubt
b) Civil On a Balance of Probabilities
NB. If one fails to discharge their legal burden to the required standard they will lose on the question in issue.
The classic example of a legal burden is the rule that in a criminal case the prosecution bear the burden of proving the elements of the
offence charged, to the standard of beyond a reasonable doubt. If the prosecution fails to persuade the persuade the factfinder to this
standard of one or more elements of the offence charged, then the prosecution will not have discharged their legal burden and the fact
finder must acquit on the charge.
Legal burdens are allocated by rules of law and do not shift during the course of the trial.
ii. Evidential Burden
1) This is the burden of adducing evidence. It is the obligation to adduce sufficient evidence to raise an issue for the court to consider. The
evidential burden is below that of the legal burden and the party who normally bears the legal burden of proving a particular issue also has
evidential burden.
2) The question of who has an evidential burden on a particular issue is determined like the legal burden by Substantive Rules.
3) It is important to note that that the party who has an evidential burden in relation to a particular issue need not have the legal burden. Example
an accused who wants to rely on a particular offence like provocation or self defence must either produce such evidence or point to some
evidence adduced by the prosecution which raises the defence- that is a reasonable doubt that he killed either under provocation or in self
defence.
4) Once this evidential burden has been discharged, the prosecutions legal burden comes into play.
5) Due to the presumption of innocence the legal burden of proof almost always rests on the Prosecutor however there are some exceptions:
a) Common Law Exception Defence of Insanity see Woolmington v DPP(1935) AC 462
b) Express Statutory Exceptions that is where the statute expressly places the legal burden on the accused (e.g.it shall be for the defendant
to prove ....)
See s22(7) Dangerous Drugs Act , Unlawful Possession of Property of Act:
S22(7) A person, other than a person lawfully authorized, found in possession of more than(a) one-tenth of an ounce of diacetyl-morphine
(heroin);
(b) one-tenth of an ounce of cocaine;
(c) one-tenth of an ounce of morphine;
(d) one ounce of opium; or
(e) eight ounces of ganja,
is deemed to have such drug for the purpose of selling or otherwise dealing therein
unless the contrary is proved by him.
c) Implied Statutory Exceptions - where on interpreting the statute, it implies that the burden is on the accused. By how the section is
constructed one can infer that the burden rests with the defence, that is, that the statute has placed the burden on the defence by
necessary implication.
This is generally in the case where the statute is concerned with offences committed by a special class of persons, or withinspecified
qualifications or with the licence or permission of specified authorities. See s20 Firearms Act Illegal Possession of a firearm See also R v
Edwards ( 1975) QB 27 and R v Hunt (1987) AC 352
S20 A person shall not
(a) save as authorized by a licence which continues in force by virtue of any enactment, be in possession of a prohibited weapon;or
(b) subject to subsection (2), be in possession of another firearm or ammunition except under and in accordance with the terms and
conditions of a Firearm Users Licence.
This will usually be the case only in minor offences, where the defendant relies on some form of exemption, or permission to do

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This will usually be the case only in minor offences, where the defendant relies on some form of exemption, or permission to do
something, such as licensing matters.
6) Where it is difficult for the defendant to provide evidence in his defence, or where the offence alleged is a serious one, the courts will generally
take the view that the burden is too onerous, and it will rest with the prosecution.
7) If a defendant does have the legal burden he will only have to discharge it on the balance of probabilities (the civil standard of proof.
VI. Cases:
a. DPP v. Sanchez-Burke
b. R v. Edwards(1975) QB27
c. R v. Harrington et al
d. R v. Hunt (1987) AC 352
i. Pg 649-650 of walker n walker
e. R v. K
f. R v. Owen Sampson
g. R v. Solomon
h. Woolmington v. DPP(1935) AC462
i. Pg 648 of walker n walker

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