CLP

Question 1

What is the test for no case to answer? (Defendant only)

Answer 1

(a) P fails to evidence essential element of the offence; or
(b) evidence produced is discredited by cross-examination or is manifestly unreliable

Question 2

What are the grounds for appeal against sentence?

Answer 2

Most common ground: Sentence is manifestly excessive.

Other grounds (3): sentence is wrong in law or principle; judge adopted the wrong approach in sentencing; a co-d has a more lenient sentence in comparison.

Question 3

What are the grounds for appeal against conviction?

Answer 3

(i) Trial judge misdirected jury;

(ii) Trial judge wrongfully admitted/excluded evidence;

(iii) Trial judge failed to provide adequate warnings, e.g. Turnbull or adverse inferences.

(iv) Inappropriate interventions by the trial judge;

(v) failure when summing up to deal with D case, identify inconsistency in P case, summarise evidence property; OR

(vi) Fresh evidence.

Question 4

What are the exceptions to the right to bail? When do they not apply?

Answer 4

(a) D has been committed to the CC for sentence;

(b) D is appealing against conviction or sentence; or

(c) Specified crime (e.g. murder, rape, etc)

DOESN’T APPLY WHERE:

(a) D is 18;
(b) D hasn’t been convicted of an offence; and
(c) no real prospect that D will have a custodial sentence

Question 5

When ‘need not’ the court grant bail? (Indictable only and either-way offences)

Answer 5

Substantial grounds for believing D would:

(a) fail to surrender to custody;
(b) commit an offence while on bail; or
(c) interfere with witnesses//obstruct the course of justice.

Question 6

What factors will the court consider when meeting the ‘substantial ground for believing’ threshold for denying bail (e.g. substantial ground for believing D will fail to surrender)?

Answer 6

By considering:

(a) the nature and seriousness of the offence;
(b) the Defendant’s character (e.g. previous convictions), background and affiliations;
(c) D’s record regarding previous bail proceedings; and
(d) strength of evidence against D.

Question 7

What conditions on bail aim to prevent Absconding?

Answer 7

• Security
• Reporting to a police station
• Residence
• Surrender of passport

Question 8

What conditions on bail aim to prevent further offences from being committed?

Answer 8

• Reporting to a police station
• Residence
• Curfew
• Non-communication with prosecution witnesses (prevents interference with witnesses)
• Restriction on entering specified areas (prevents interference with witnesses)

Question 9

How is a plea in mitigation structured?

Answer 9

1) DS identifies likely sentence;
2) DS addresses the circumstances of the offence, minimising aggravating factors and stressing mitigating factors;
3) DS emphasises personal mitigation, e.g. mental health;
4) DS suggests the sentence they deem appropriate.

Question 10

What are the common law aggravating factors?

Answer 10

(1) Planning/targeting of vulnerable
(2) Operating in group/gang
(3) Intoxicated
(4) Use of weapon
(5) Abusing position of trust
(6) Value of property (monetary and/or sentimental)

Question 11

What are the statutory aggravating factors?

Answer 11

(i) Previous convictions;

(ii) If the offence was committed on bail;

(iii) Racial or religious aggravation;

(iv) Sexual orientation or disability-based hostility.

Question 12

What are examples of mitigating factors?

Answer 12

(1) D acted on impulse
(2) D was heavily provoked
(3) D has mental/physical disability
(4) D is young/very old
(5) D played a minor role
(6) D motivated by fear
(7) D showed remorse/made attempts at reparation

Question 13

What is the test of challenging the admissibility of confessions under s76 PACE?

Answer 13

The confession was made through: (a) oppression of the person who made it; or
(b) via something said or done which made the confession unreliable

Question 14

What is the test for challenging the admissibility of evidence under s78 PACE?

Answer 14

If the admission of the evidence would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Question 15

Considering the test for s78, when is it likely that the court would render the evidence inadmissible?

Answer 15

If there has been a significant and substantial breach of PACE or COP.

Question 16

What is Hearsay?

Answer 16

An out-of-court statement, made to make another believe something, is used in court as evidence of a matter in dispute.

E.g. X told me a bike was stolen, I then submit this fact in evidence to prove the bike was stolen - the hearsay account is all that provides the evidence.

Question 17

What are the statutory grounds for admitting Hearsay?

Answer 17

(1) Witness unavailable to attend court, e.g. they died, are fearful of attending, are out of the country, or it wouldn’t be beneficial for them to attend (person must be identifiable and it must have been first hand hearsay);

(2) Document received in the course of business;

(3) Correcting statement of witness

Question 18

What are the common law grounds for admitting Hearsay?

Answer 18

(1) Confessions
(2) Res Gestae (emotionally overpowering event, fabrication isn’t considered)
(3) Interests of justice - e.g. probative statement that is integral to the case, is reliable etc.

Question 19

What is ‘bad character’ evidence?

Answer 19

Previous disposition towards misconduct is used as evidence for a matter in dispute.

E.g. If you’re in a robbery trial where you supposedly used a knife, and you have used a knife to rob before, the previous conviction could be used as evidence of you committing this offence.

Question 20

What are the 7 Defendant gateways of Bad Character evidence?

Answer 20

(a) Agreed admission;
(b) D gives the evidence;
(c) Necessary context of the case;
(d) Relevant to an important matter in issue, e.g. whether the offence was committed, previous offence may be used ;
(e) Co-D uses the evidence against another D;
(f) Corrects false impression by D;
(g) D made an attack on another person’s character

Question 21

What are the 3 gateways of admitting Non-Defendant Bad Character evidence?

Answer 21

(a) Important explanatory evidence;
(b) Probative value in relation to a matter in issue which is of substantial importance in the context of the case overall; or
(c) All parties agree that it’s admissible

Question 22

What happens where a long passage of time has elapsed between offences of bad character? (s103(3)) (Gateway D)

Answer 22

If the court is satisfied that, as a result of the time which has passed since the conviction, it would be unjust to apply the bad character evidence - they must not admit it.

Question 23

What are the Hanson guidelines for gateway D (it is relevant to an important matter in issue between D and P) if P seek to adduce evidence of D’s bad character?

Answer 23

(i) Does D’s history of offending show a propensity to commit offences of the type charged?

(ii) If so, does that propensity make it more likely D committed the current offence?

(iii) If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?

If all 3 cannot be positively answered, the evidence cannot be admitted.

Question 24

What is s101(3) regarding bad character and when are the court likely to utilise it? (Gateways D and G only)

Answer 24

Court must not admit evidence if the admission of the evidence would have such an adverse effect on proceedings.

Likely to be used in 3 situations:

(A) jury are likely to convict the defendant on these convictions alone;

(B) the previous convictions are used to support a case which is weak;

(C) D’s previous convictions are ‘spent’

Question 25

What are the two main ‘matters in issue’ under gateway d?

Answer 25

(a) Whether D has a propensity to commit offences of the kind with which he is charged;

(b) whether D has a propensity to be untruthful

Question 26

How can a propensity to be untruthful be substantiated?

Answer 26

(a) manner in which the pervious offence was committed demonstrates the propensity, e.g. fraud;

(b) D pleaded not guilty to a previous offence but was convicted

Question 27

What gateways can the court exclude bad character evidence under?

Answer 27

Gateways D and G. If any of the other gateways are satisfied, the court must admit the evidence (provided it is not contrary to s78).

Question 28

What is the test for establishing a grave crime?

Answer 28

Offences where a 21+ y/o may receive a custodial sentence of 14 years or more.

YC sends grave crimes to CC if their maximum sentencing powers are insufficient.

Question 29

When is it in the interests of justice for a youth to be sent to the CC?

Answer 29

Examples:
- Separate trials wouldn’t cause injustice;
- Smaller age gap between youth and adult = more likely to be sent to CC
- Finding of guilt
- High culpability of youth