Jury trial procedure - syllabus area 9

Question 1

should an accused be present throughout the trial?

Answer 1

yes. the accused must be present at the commencement of the trial to plead, and throughout the trial (except they have waived the right to attend and the trial will be fair despite the absence) - D15.82

Question 2

Can the judge deal with matters without the counsel’s presence?

Answer 2

the judge ought not deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence - D15.82

Question 3

In what situations may the judge proceed without the accused?

Answer 3

as a result of their own misbehaviour
where his absence is voluntary/ withdraws instructions from legal representatives
when the accused is too ill to attend
following the death of the accused - D15.83

Question 4

what discretion does the trial judge have?

Answer 4

the discretion to continue in the absence of the accused - they must be warned of this at the PTPH - D15.84

the discretion should be exercised with great care

Question 5

what should the courts not consider when determining the accused’s right to attend trial?

Answer 5

the seriousness of the offence and if the accused absconded voluntarily, he should still be represented - D15.85

Question 6

What happens when the accused behaves in an unruly fashion in the dock?

Answer 6

the judge should warn the accused before taking the extreme step of barring from court - D15.86

Question 7

What else can happen from unruly behaviour?

Answer 7

the court may tell the accused that he may be held guilty of a contempt in the face of court - D15.86

Question 8

Should an accused be handcuffed in the dock?

Answer 8

no, unless there is a real risk of violence or escape and there is no alternative to visible restraint - D15.86

Question 9

When can the accused be brought back into court after being taken from the dock?

Answer 9

when the accused undertakes not to behave in an unruly behaviour -D15.86

The accused may waive the right to attend by refusing to be brought into court from the cells

Question 10

what happens where the accused was present at the beginning of trial and voluntarily goes absent, by escaping from custody or failing to surrender?

Answer 10

the court may proceed in absence - D15.87

if the accused is convicted, sentence may also be passed in absence

this applies also for voluntary intoxication or self induced drug psychosis

Question 11

what questions should the courts consider in exercising its discretion?

Answer 11

whether:

i) D had deliberately absented himself and
ii) there were reasonable steps that could be taken to secure his attendance

Question 12

what is the alternative option the courts may consider?

Answer 12

discharging the jury from giving a verdict, allowing a retrial to take place before a different jury when the accused’s presence is secured - D15.87

Question 13

What happens whether or not the court proceeds in the accused’s absence?

Answer 13

a bench warrant for the accused’s arrest may be issued - D15.87

Question 14

What happens when the accused is absent due to sickness?

Answer 14

the trial may not continue unless the accused consents. The trial judge must either adjourn till the accused is recovered or discharge the jury- D15.89

OR if the case can be fully presented, including the accused’s own written evidence, without unfairness

Question 15

if the court is not satisfied with the adequacy of the accused’s illness, what should happen?

Answer 15

it should provide an opportunity for further evidence to be provided before continuing the trial in the accused’s absence, and must always have regards to fairness of the proceedings - D15.89

Question 16

if there are several accused and one Is sick, how do the courts handle this?

Answer 16

the courts may continue in the accused’s absence provided that the evidence and proceedings relate entirely to the case against the co-accused and have no possible bearing on the absent accused’s case

Question 17

how do the courts treat an unrepresented accused

Answer 17

Treatment by court of unrepresented D (D17.17)
The court will, as a matter of practice, give him such assistance in conducting his defence as may seem appropriate
If D dismisses his counsel (or they withdraw) during the course of the trial and remains entitled to public funding,
=> The court may grant an adjournment for D to be represented (not a requirement)

Question 18

What is the Defendant’s right to call or give evidence?

Answer 18

D’s right to give or call evidence (D17.18)
Court should tell D at the end of P’s case of his right to:
Give evidence himself;
Call witnesses in his defence; or
Stay silent and call no evidence
=> Failure to give D this info may lead to any conviction being quashed
Court should inform D of the inferences which may be drawn from a failure to give evidence or silence to answer a question, having been sworn in (s35 CJPOA 1994)
Namely, the jury may hold D’s failure to give evidence against him/her

Question 19

What are the restrictions on an accused who is unrepresented?

Answer 19

Trial judge may ask witness questions on behalf of an unrepresented Defendant, in the Defendant’s interest.

the Accused is Prohibited from cross-examining (CX) complainants and child witnesses in trials for certain offences
I.E. Sexual offences; offences involving children
Court may prohibit D from cross-examining witnesses if the court is satisfied that:
The circumstances of the witness and case merit it, and
Prohibition would not be contrary to the interests of justice
There are provisions for appt of representatives to conduct cross-examination on behalf of unrepresented D
The role of such a representative for the CX
s. 38 advocate did not have a free-ranging remit to conduct the trial on D’s behalf.
Instead, the advocate was under a statutory duty to be in a position to properly conduct a cross-examination
I.E. Might include a pre-trial application to admit bad character evidence- D17.19