Criminal Litigation

Question 1

What does ‘ADVOKATE’ stand for in relation to identification evidence?

Answer 1

A - Amount of time observed
D - Distance
V - Visibility
O - Obstructions
K - Known
A - Any other reason
T - Time lapse between witnessing and ID procedure
E - Errors in description

Question 2

What MUST be excluded under S.76 of PACE?

Answer 2

Confession due to unreliability owing to:
a) things said or done; and/or;
b) Opression.

Question 3

What are the 7 gateways for admission of bad character evidence

Answer 3

1) All parties agree it is admissible;
2) It is adduced by the defendant;
3) It is important explanatory evidence;
4) It is relevant to an important matter in issue between prosecution and defence;
5) There is substantial probative value to an important matter in issue between co-defendants;
6) It corrects a false impression given by the defendant; or
7) The defendant attacks another’s character.

Question 4

What is the procedure and time limits for making an application to adduce bad character evidence?

Answer 4

Magistrates - In a set form served within 20 business days of a not-guilty plea

Crown - In a set form within 10 business days of a not-guilty plea

Question 5

What is the procedure and time limits for OPPOSING an application to adduce bad character evidence?

Answer 5

Within 10 business days.

Question 6

Test to exclude visual identification evidence on basis of POOR QUALITY and Courts power under what Section of PACE

Answer 6

1) Identify the court’s discretion to exclude evidence under s78 PACE;

2) Identify what other evidence there is to support prosecution;

3) Argue for/against the strength of the identification evidence going through the ‘ADVOKATE pnemonic.

S.78 of PACE - discretionary if would have adverse effect on fairness of proceedings.

Question 7

Test to exclude visual identification evidence due to being IMPROPERLY OBTAINED?

Answer 7

1) Identify the court’s discretion to exclude evidence under s78 PACE

2) Identify relevant breaches of ID procedures (usually video) under Code D including:

a) reasonable objections to appearance of others in procedure;
b) keeping witnesses away from suspect before procedure;
c) keeping witnesses apart during ID procedure; and
d) warning that suspect may not be shown at all.

Question 8

Test to exclude Confession and under what section of PACE?

Answer 8

1. Remind court, once admissibility challenged, prosecution to prove beyond reasonable doubt that confession is not unreliable.
2. Remind court confession MUST be excluded if the prosecution do not discharge this burden of proof under s76 PACE.
3. Identify under which ground the confession is sought to be excluded and provide relevant details:
   a) unreliable owing to things said or done;
   b) unreliable owing to oppression.
4. Demonstrate causation from things said or done/oppression and confession.

s76 PACE.

Question 9

Test to oppose an application to exclude Confession?

Answer 9

1. Identify that the confession is relevant to a matter in issue between prosecution and defence and is therefore admissible.
2. Show the confession was obtained fairly and in compliance with S76 of PACE

s76 PACE.

Question 10

Test to exclude any evidence?

Answer 10

In addition to any of the other tests cited for the admission or exclusion of evidence,
The court has a general discretion to exclude prosecution evidence if:

1) having regard to all the circumstances, including in which the evidence was obtained:

2) the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it under s78 PACE.

Question 11

SINGLE hearsay evidence is inadmissible unless?

Answer 11

1) one of the exceptions applies:
* Under statute
* By rule of law
* By agreement of the parties
* In the interest of justice

2) Apply the test from the relevant exception.

Question 12

How do exceptions apply for single hearsay evidence under:

a) statute
b) rule of law
c) By agreement of parties
c) interest of justice

Answer 12

1. Under statute:
   a) Witness unavailable;
   b) Business document;
   c) statement prepared and the person cannot be expected to recall
   d) previous consistent/inconsistent statement
   e) Expert evidence
   f) A confession
2. Rule of Law
   a) Statements made contemporaneously to the offence (EG. stab him like we agreed);
   b) Res gestae (emotionally overpowered at time / accompanying an act / statement relating to mental state)
3. Agreement of parties
4. Interest of Justice
   a) probative value
   b) reliability of maker of statement

Question 13

Test for admissibility of MULTIPLE hearsay evidence?

Answer 13

1) For multiple hearsay consider whether:
a) it is contained in a business document;
b) is an inconsistent/consistent statement;
c) if all parties agree;
d) value of evidence is so high that it is in the interest of justice

2) Apply the test from the relevant exception.

Question 14

Test for admission of Defendant’s bad character evidence?

Answer 14

1) It is evidence of, or a disposition towards:
a) misconduct;
b) commission of offences; or
c) other reprehensible behaviour outside of the facts of the offence?

If yes, it is not admissible unless:

2. It falls under any of the 7 gateways to admission, because:
   * All parties agree it is admissible
   * It is adduced by the defendant
   * It is important explanatory evidence
   * It is relevant to an important matter in issue between prosecution and defence
   * There is substantial probative value to an important matter in issue between co-defendants.
   * It corrects a false impression given by the defendant
   * The defendant attacks another’s character

Note when D makes an app to exclude under (1) matter in issue or (2) D attacks character

Question 15

Under what gateways must the court not admit bad character evidence and why?

Answer 15

If adduced under:
1) important matter in issue between prosecution and defence; or

2) the defendant attacked another’s character.

court must not admit it if:
a) the defence make an application to exclude it; and
b) admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.

Question 16

Test for Bail Application?

Answer 16

1. Remind court of the defendant’s right to bail
   (bail can only be refused if one of the exceptions to the right to bail apply, AND there is a real prospect of a custodial sentence)
2. Consider whether any of the exceptions to the right to bail apply which are:
   substantial grounds to fear the defendant would
   a) fail to surrender
   b) commit further offences on bail; or
   c) interfere with witnesses or otherwise obstruct justice.
3. Factors to consider in deciding whether substantial grounds exist -
   a) nature and seriousness of the offence;
   b) defendant’s character
   c) defendant’s record of complying with conditions on bail
   d) strength of the evidence.
4. Consider whether any conditions can be put forward to address these issues:
   a) residence;
   b) reporting;
   c) exclusion;
   d) non-contact tag; and
   e) curfew.
5. Conclude on why bail should/should not be granted

Question 17

Test for Plea in Mitigation?

Answer 17

1. Remind court
   - sentence must be proportionate to the SERIOUSNESS of the offence, bearing in mind :
   a) offender’s culpability; and
   b) any (potential) harm from the offence.
2. Identify:
   a) starting point for sentence; and
   b) range of sentences available.
3. Consider the aggravating and mitigating factors relating to the OFFENCE.
4. For multiple offences, explain why the sentences should be concurrent (if appropriate).
5. Consider mitigating factors relating to the DEFENDANT.
6. Remind the court of credit for a guilty plea (if appropriate)(1/3 off sentence if plead guilty at first available oppertunity).
7. Propose an appropriate sentence.

Question 18

Test for submission of No Case to Answer?

Answer 18

Remind court - burden is on the prosecution to prove the defendant’s guilt, and all the elements of the offence are made out.

Argue that the evidence the prosecution have adduced is insufficient for any reasonable court to convict, either because:
a) prosecution has failed to prove an element of the offence; or
b) evidence adduced - so manifestly unreliable that no reasonable court could convict on it.

Question 19

Test for Mode of Trial (convincing court to accept jurisdiction)?

Answer 19

In deciding whether to accept jurisdiction, the court must consider

1) adequacy of its sentencing powers

a) The Magistrates’ Court’s sentencing powers are restricted to 6 months’ imprisonment for a single offence, or
b) 12 months’ imprisonment for 2 or more either way offences.

2) Go through the relevant sentencing guidelines and consider
(a) starting point for the sentence; and
(b) the range that applies.

3) Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction.