Trial Procedure Flashcards
Evidential burden on prosecution
To present sufficient evidence to the court to justify a finding of guilt.
Competence and compellability of D
Competent witness for defence but not compellable, ie. not obliged to give evidence.
Adverse inference - s 35
If prosecution raises issues which call for an explanation from the D, should the D fail to give evidence, the court will infer from that failure that the D has either no explanation or no explanation that will stand up to cross-examination.
Verdict in MC
By majority - bench of 3 magistrates.
Order of defence witnesses
D must be called first before any other witnesses.
Submission of no case to answer, ie. Galbraith test
The defence should make a submission of no case to answer if the prosecution fails to:
- put forward evidence to prove an essential element of the offence, or
- the evidence has been discredited or is manifestly unreliable.
Jury verdict
Must be unanimous amongst 12 jurors.
However, a majority verdict of 11:1 or 10:2 will be accepted IF, after 2 hours and 10 minutes, unanimity is impossible. However, if the case is lengthy/complex, the judge is likely to wait much longer than this.
If any jurors have been discharged, the majority verdict requirements reflect this (so 11 jurors - majority must be 10:1, or 10 jurors - majority must be 9:1).
Where there are only 9 jurors, only a unanimous verdict is acceptable.
Modes of address
Magistrates - Your Worships
Chairperson of magistrates - Sir/Madam
DJ - Sir/Madam
Crown Court - Your Honour
Leading vs. non-leading questions
Examination in chief = non-leading, open questions.
Cross-examination = closed, leading questions.
Re-examination
Witness may be re-examined only in relation to matters that arose in cross-examination.
Exception to GR on competence
Children:
- over 14 give sworn evidence
- for the judge to decide whether child can give intelligible testimony
Defective intellect:
- for the judge to decide
Compellability - the accused
As a witness for the Crown, ie. prosecution = not competent or compellable.
As a witness for a co-accused = competent but not compellable
In his own defence = competent but not compellable.
Compellability - the spouse of the accused
For the Crown, ie. prosecution = compellable where limited specified offences are involved:
- assault / injury / threat to spouse or person under 16
- sexual offence or attempted offence involving under 16
For the accused = compellable
For a co-accused = compellable where limited specific offences are involved
Where spouses are co-accused = never compellable.
