Criminal

Question 1

Bail Application Legal Test and Structure

Answer 1

1) Remind Court of Defendant’s Right to Bail (presumption of bail)

2) That this can only be refused if one of exceptions of bail apply; AND

There is a real prospect of a custodial sentence

3) Exceptions to the right of bail:

A) Offense committed while on bail

B) D failed to surrender already in these proceedings

C) Not enough evidence to make a decision on bail

D) Substantial grounds that D will fail to surrender, commit offenses while on bail, interfere with witnesses or otherwise obstruct justice

i) Nature and seriousness of offence

ii) Strength of Evidence

iii) D’s character and community ties

iv) D’s record and compliance

4) Put forward conditions

Question 2

Admissibility of Bad Character Evidence

Answer 2

1) State that evidence of disposition towards misconduct, commission of offenses or other reprehensible behavior, is generally not admissible unless an exception applies

2) State exception and counter (7)

3) S.78 PACE 1984 to explain

Question 3

Interests of Justice Hearsay what to consider (8)

Answer 3

1) Probative Value

2) What other evidence can be given on the matter

3) Importance to context of case as a whole

4) Circumstances in which statement was made

5) Reliability of Statement Maker

6) Whether oral evidence could be given

7) Amount of difficulty in challenging

8) Extent to which difficulty would prejudice

Question 4

Exclusion of Identification Evidence

Answer 4

1) Poor Quality (ADVOKATE)

amount of time, distance, visibility, obstruction, known or unknown, any reason to remember, time lapse and errors

2) Improperly Obtained

3) If the Court decides that despite these shortcomings that the evidence should be admitted, as you are aware Judge the Turnbull Guidelines would apply in this case given that this is disputed visual evidence and that the Defendant is not known to the Complainant.

Question 5

Plea in Mitigation structure

Answer 5

1) If pre-sentence report available (recommend judge follows)

2) Remind court sentence must be proportionate to the seriousness of the offense, bearing in mind culpability and any potential harm caused by the offence

3) Identify starting point and sentences available

4) Consider aggravating and mitigating factors

5) If multiple use totality principle (that the overall sentence be just and proportionate taking into account all of the offending behavior: arises of the same incidents or facts are of a similar kind)

6) Remind court of credit for guilty plea

7) Propose an appropriate sentence

Question 6

Submission of no case to answer

Answer 6

Remind court that burden is on prosecution to prove D’s guilt and to prove all elements of the offense are made out

Evidence prosecution have adduced is insufficient to convict as:

i) Prosecution failed to prove an essential element of the offence

ii) Evidence adduced by the prosecution is so manifestly unreliable no reasonable court or jury could convict on it