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

Criminal Law 1 Page 1

See s. 2) s.See for e. ill health 4) Jurors for a case are chosen at random iv. b) s.  Jury shall not be reduced by more than one:  Where in course of trial. Calling of witnesses Second.6(2): Savings clause . and iii) He resides in Jamaica. Course of the Trial (pg 639 of Walker & Walker) i.s. 12 jurors form array. 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. Empanelling of Jury i. served on jury in said proceedings.See for e.R v. Witnesses First. App. other than illness. the Court is empowered to add to the jury as many bystanders (talesmen) as necessary. Judge may appoint foreman. Publicity ii. R. App. however Judge has a discretion to allow it. Function of the Jury 1) The jury’s 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. ii. 43 3) By common law it is impermissible to have a jury totally composed of talesmen. 24(2) and T & T. Cross-examination by Defence Three. and trial proceed and verdict given: s. Solomon (1958) 42 Cr. or A person in respect of whom a preliminary enquiry into an indictable offence is pending committal or trial. v. 43. otherwise it will be too late. through illness or other sufficient cause.s. 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. iii. Jamaica s.M. But Judge.R v. jury shall nevertheless. he or she pleads "autrefois convict.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.M.g. 48 or to the polls (individual jurors).g. or coroner may excuse him if satisfied that: a) he is disqualified /exempt under provisions of Act.2(2): A person is disqualified from serving on a jury if: i) He is not a commonwealth citizen.See for e. R. Belize. s. Court for an indictable offence. Unless he has received a pardon.s. Re-directing by Defence 2) Burden of Proof (see below) 3) Conclusion of Case (Summation) a) Judge must advise jury on: Criminal Law 1 Page 2 . s. The Array (Number of Members in a Complete Jury)  In Jamaica for murder (whether capital or non-capital) and treason. 31(1) & (2) Jury Act. Procedure at the hearing 1) Speeches a) Prosecution's Case i) Opening statements made by Prosecution ii) Witnesses One. Opening statements made by Defence Two.g. 33(1) & (2) Jury Act -each defendant has 7 for murder/treason and 5 in other cases. 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. Challenges (pg.31(3). The jurors for each case are chosen from the panel 3) The presiding judge may excuse a juror from sitting for good cause e. Obligation to Serve on Jury 1) s. 34(1) vii.no verdict /findings in any proceedings will be invalidated by reason only of fact that person disqualified /exempt from so serving.See for e. Harrington et al (1977) 64 Cr.g. Qualification of Jurors 1) Throughout the region matters related to the jury are governed by Jury or Juries Acts: a) s. read and write English. R. or iii) He is at the date of being required to be a juror: Awaiting trial in R. 2) It must be ensured that these talesmen are not disqualified or exempted by law . 9 4) Jurors must elect a foreman and if no agreement.2(1) Jury Act: Every person qualifies to serve on a jury if: i) He is not less than 18yrs.s. The prosecution has 7 or 5 for each defendant as the case may be." g) Plea of guilty to an alternative offence h) Plea of guilty i) Plea of not guilty b.23(A) d) In some jurisdictions it may be made either to the array (all jurors called to the jury box).33(4) vi. Jamaica s. or ii) He cannot speak. or b) for reasons apparent to judge.g. in all other cases it is 7. iv) A person convicted of treason or any there offence for which he has been sentenced to imprisonment for more than 6mths. 1 c) In Jamaica. Example Murder and Manslaughter c. person should be excused. Talesmen/Foreman 1) Where requisite number of jurors do not appear or there is an insufficient number remaining after challenges. and be considered as properly constituted. Calling of witnesses Two. and ii) His name is on the current official list for elections. Cross-examination by Prosecution Third. once not reduced by less than 1. juror dies or is discharged by court.f) Plea of autrefois convict i) If the accused maintains that the previous trial resulted in conviction. 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. not claimed before final settlement of list. 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. Old and not more than 65.

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. illness or other sufficient cause: s. Hambery [1977] 1 QB 924 4) Verdict a) The jury must deliver their verdict by the foreman in open court. By Mode of Trial i. Thus. free from coercion. judge must tell them there is no evidence on the matter and that theymust decide case on evidence heard.B.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. Jury must not separate save with the permission of the judge. 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. after retirement. on a supposed verdict of acquittal. ii) Court of Appeal can review exercise of judicial discretion to discharge a juror: R v. or iv) not open to the jury on the indictment. If he is guilty of one. 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.3) Conclusion of Case (Summation) a) Judge must advise jury on: i) their function as judges of fact. Gorman [1987] 2 All E. etc. eg: alternative counts. or to remind them ofthe evidence. Consequence of failure to adhere to these rules is that judge may discharge the offending juror or the entire jury. he cannot be guilty of the other. N. First. vi) any defence raised. Neal (1949) 2KB 590 . open to them. iii) R v. before verdict is recorded. they do not express their dissent. 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. R v. Three. d) Note general verdict. The reason here lies in the fact that if jury were asked to return a formal verdict of not guilty.45(1) Jury Act iii) It is for judge alone to decide whether the need exists for discharging jury. though not depended on by accused. 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. f) Alternative Counts i) An indictment sometimes charges an accused with 2 offences in the alternative. an accused may be charged. judge must stillleave that other defence to jury. but judge draws the legal conclusion from facts as found. Two.R. looking at ingredients of the offence. b) Where foreman delivers verdict in presence of jury and hearing. Classification of Offences a. who is to permit no one to enter jury room or to communicate with them. Jury must stay in custody of jury bailiff. if there is evidence giving rise to another defence. c) If there is more than accused. partial verdict. i) Incomplete verdicts i) A verdict is not complete until a jury has dealt with all possible verdicts. It is essential that jury must be able to bring in their verdict. Summary Trial. a separate verdict must be returned in respect in respect of each. the court of appeal will be able to alter the verdict to a conviction on the alternative count. conviction may be quashed. R v. where jury decides on those questions of fact which judge puts to them. on the indictment. ii) If judge discharges jury before jury have completed verdict. ii) This may be done after D has been discharged out of the dock. Jury must not leave jury room without judge’s permission. ii) Accused however. but not others. rectify their verdict and it will stand as amended. but guilty of some other offence. 435 d) Discharging a Juror i) Judge may order discharge of juror in circumstances of death. or not guilty of offence charged. 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 may ask judge questions on matters of law. e) Special verdict. if it is done before jury have left the box. they should be discharged from returning a verdict on the other. IV. it is conclusively presumed that they assented to the verdict. Such permission should only be given in cases of evident necessity. cannot be convicted of both offences. guilty or not guilty on all counts. N. or even promptly after. Carter & Carnavan (1964) 48 Cr App R 122 j) Amendment of verdict i) The jury may. iii) If jury convicts accused on one alternative count. On appeal.31(3) Jury Act. iii) Burden and standard of proof.where jury were permitted to leave jury room and custody of jury bailiff. ii) his function to advise them on the law. Young h) Receiving the verdict i) Once a jury has returned a verdict.45(2). 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.Some driving offences see: Road Traffic Act Criminal Law 1 Page 3 . both with larceny of certain goods and receiving of same goods. unless it is: ii) ambiguous.B. the judge has no discretion to refuse to accept it. iv) definition of offence charged. ii) Judge may discharge jury at any time after one from hour from 1st retirement. guilty on some counts. iii) If they ask about a point on which no evidence was led. v) need for corroboration. duress and the like. His decision is not subject to review or appeal: s. iv) There is an absolute rule however. or iii) inconsistent. so serious was the irregularity and departure recognized by law that court had no option but to quash the conviction. such discharge is a nullity. where he is satisfied that there is no reasonable probability that they will arrive at a verdict: s.

then the prosecution will not have discharged their legal burden and the fact finder must acquit on the charge. committed against the plaintiff. If the prosecution fails to persuade the persuade the factfinder to this standard of one or more elements of the offence charged. in general . Owen Sampson. below treason and above misdemeanour. (d) one ounce of opium. are true. There are two principal kinds of burdens: i. or withinspecified qualifications or with the licence or permission of specified authorities. 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. 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. while for trials on misdemeanours the accused’s presence is strongly promoted but not required. it implies that the burden is on the accused. accessory before the fact. This is generally in the case where the statute is concerned with offences committed by a special class of persons. The court is now required to balance justice between all the parties and consider all the circumstances. 4) Once this evidential burden has been discharged. to arrest without warrant on reasonable suspicion of a felony having been committed. By Category of Offence i. 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. the facts in issue. This in addition to his common law power to prevent a breach of peace. 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.“it shall be for the defendant to prove . Treason ii. 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. found in possession of more than(a) one-tenth of an ounce of diacetyl-morphine (heroin). is not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted. i. that is. Burden of Proof a.g. 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. 5) Generally only police officers have powers of arrest without warrant for summary offences. The expression seems self explanatory as it is the obligation to prove or the onus of proof. ranking in seriousness.2) Sstatute may indicate that a common law offence may be tried either way.e.e. 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. iv. but he has no power to arrest for a misdemeanour. in criminal law often by reference to the elements of the offence. This will usually be the case only in minor offences. 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. in the case of a misdemeanour. b) The rules as to parties are different. If one fails to discharge their legal burden to the required standard they will lose on the question in issue.that is a reasonable doubt that he killed either under provocation or in self defence. c) Implied Statutory Exceptions . 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. be in possession of another firearm or ammunition except under and in accordance with the terms and conditions of a Firearm User’s Licence. that is. the prosecutions legal burden comes into play. 2nd degree etc. However aiding & abetting is now extended to misdemeanours i. Based on principles in the case of R v. 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. 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. NB: This is no longer an absolute rule. See S15 Constabulary Force Act . (b) one-tenth of an ounce of cocaine.g. 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. It is the obligation to adduce sufficient evidence to raise an issue for the court to consider. 2) The question of who has an evidential burden on a particular issue is determined like the legal burden by Substantive Rules.”) See s22(7) Dangerous Drugs Act . a) The facts in issue are determined by reference to the substantive law. While felonies may involve principals in the 1st.. 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. 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. there are no accessories or parties called principals. Unlawful Possession of Property of Act: S22(7) A person. to the standard of beyond a reasonable doubt. that the statute has placed the burden on the defence by necessary implication. other than a person lawfully authorized. or (e) eight ounces of ganja. B’dos— CL(AO)A. ii. Felonies 1) A category of crimes.. which are neither treasons nor misdemeanours. By how the section is constructed one can infer that the burden rests with the defence. all offences at common law or by statute. a constable has power at common law. 17/92 and T’dad & T’go — CLA. is deemed to have such drug for the purpose of selling or otherwise dealing therein unless the contrary is proved by him.. iii.Some driving offences see: Road Traffic Act 3) In Jamaica the Prosecution elects the mode of trial b. 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. where the defendant relies on some form of exemption. 4) With regards to police officers . 6) Powers of Arrest a) Without warrant are wider in respect of felonies than misdemeanours.. Selwyn: an action for damages based upon a felonious act on the part of the defendant.where on interpreting the statute.or (b) subject to subsection (2). an accessory before and after the fact.g.. absconding. An officer may usually arrest any person whom he finds in the Act of committing a summary offence. Evidential Burden 1) This is the burden of adducing evidence. or permission to do Criminal Law 1 Page 4 . be in possession of a prohibited weapon. Legal burdens are allocated by rules of law and do not shift during the course of the trial. (c) one-tenth of an ounce of morphine. to a specified standard of proof that certain facts.

R v. Harrington et al d. 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. Solomon h. Woolmington v. R v. R v. VI. DPP v. the courts will generally take the view that the burden is too onerous. and it will rest with the prosecution. R v. Cases: a. R v. such as licensing matters. or where the offence alleged is a serious one. K f. or permission to do something. R v. Owen Sampson g. Pg 648 of walker n walker Criminal Law 1 Page 5 . Edwards(1975) QB27 c. Sanchez-Burke b. 6) Where it is difficult for the defendant to provide evidence in his defence. DPP(1935) AC462 i. Pg 649-650 of walker n walker e. where the defendant relies on some form of exemption. Hunt (1987) AC 352 i.This will usually be the case only in minor offences.