Presentation by Dan Suter Criminal Justice Advisor Know the role of - - PowerPoint PPT Presentation

Presentation by Dan Suter Criminal Justice Advisor



Know the role of the prosecutor at all stages



Be aware of the principles by which a prosecutor makes their decisions.



Have improved knowledge of how to review, analyse and present cases for a bail application and to oppose adjournment applications



Better awareness of witness care and handling of exhibits



How to manage a common disclosure issue



How to oppose adjournments



How to accept guilty pleas and role in the sentencing process



Advise case/ liaise with police



Guide police



Assess evidence – weed out weak cases/strengthen weak cases



Making decisions in a timely manner so as to ensure best use of resources



Determine whether charge is correct.



Advocacy



Bring cases to court



Representing prosecuting agency to outside community



Identifying and meeting needs of witnesses

 Contributing to an improved Criminal

Justice System.

 For Who?

 Victim  Public / Community  Defendant  Witness

 How do we get there? Based on the

facts of each case

 Where do we start? Understanding the

facts



Strong moral compass



Scrupulously fair



Objective



Passionate



Empathetic



Incorruptible



Strong sense of what society expects (litmus test for society) v the strict application of the law –discuss potential conflicts, etc.



What decisions do you have to make?



What principles do you employ to make those decisions?



If challenged in court, how do you justify the decision you make?



Have you had any of your decisions questioned/challenged?



How do you justify the decision you took?



Are the public aware of the principles that you employ to make your decisions?



Are the Judiciary aware of the legal basis upon which you make decisions?



Do you have the power to discontinue a case? Discuss Section 34 of the Constitution – do you discuss with the AG/ before withdrawing entering a nolle?



Likely issues



Admissibility of evidence



Is there evidence which may support or detract from the reliability of a confession?



What explanation has the defendant given? Is the court likely to find that credible in light of the evidence as a whole?



Will the identity of the defendant be questioned? Is the evidence about this strong enough?



Is the witness’s background likely to weaken the prosecution case? Does the witness have a motive? Previous convictions?



Accuracy or credibility of a witness. Is there any other evidence which could detract from or support the witness’s account of events?



Do you wish to pursue any of the above via other lines of enquiry or other witnesses?

 Discuss Liaison with Police  Working with police from an early stage helps to focus and

direct the case and avoid delay.

 Ensuring all lines of enquiry have been pursued.  Ensuring best evidence obtained.  Building professional relationships between agencies.

 Code for Prosecutors – guidance to

prosecutors on general principles to be applied when making decisions about prosecutions.

 Two stage test:

Evidential Stage Public Interest Stage

 ISSUES

› Joint possession – conspiracy? › Mr Green credible account › Significance of the Note/paraphernalia

 Telephone Evidence

› Admissible › Attribution › Hearsay › What does it show?

 knew of the presence of the drugs and had

some control over them and/or that he was a participant in their possession by being party to a joint enterprise with the other party: Searle [1971] Crim LR 592, Conway and Burker [1994] Crim LR 826.

 In relation to a car, if a person was the user or

driver of the car, then, depending on all the circumstances, knowledge maybe inferred (R v Strong and Berry [1989] LS Gazette, March 8, 41, CA).

 Professor Smith's commentary to the

case of R v McNamara and McNamara [1998] Crim LR 278 should be applied: "The evidence must be sufficient to satisfy a jury either that each party was in possession with intent to supply or that someone (in the present case possibly a third party) was and the defendant not

• nly knew that he was but also assisted
• r encouraged him in the enterprise."

 Proof of the existence of a conspiracy is

generally a “matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance

• f an apparent criminal purpose in

common between them” (R v Brisac (1803) 4 East 164 at 171, cited with approval in Mulcahy v R (1868) L.R.3 H.L. 306 at 317)

 Section 31Criminal Code  An agreement or common design by

two or more people to carry out a criminal act

 Evidence of the agreement maybe

proved by direct evidence of words or conduct or by proving circumstances from which the jury may presume it (R v Parsons (1763) 1 W.BI. 392; R v Murphy (1837) 8 C.& P. 297)

 It is not necessary to prove that all the

parties came together and actually agreed in terms to have the particular common design. Each conspirator may have a particular part to play in the pursuit of the attainment of the common design.

 Each co-conspirator must have the

requisite mens rea by having an intention to be a party to an unlawful act, for example the importation of drugs (R v Anderson [1986] A.C. 27, HL)

 Attribution  Hearsay  What does it show?

 Lindsay Parker – Case Study  Lord Shawcross, Attorney General, made

the classic statement on public interest, "It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution". (House of Commons Debates, volume 483, column 681, 29 January 1951.)

 Presentation – Case Summary  Exhibits

The production of chattels or physical

• bjects is not required in order to render

parole evidence as to their nature admissible (Hocking v Ahlquist [1944] K.B. 120)

Health and safety Security

 Section 82 (1) Any document or object referred to as

an exhibit and identified in a written statement taken as evidence pursuant to section 76 shall be treated as if it has been produced as an exhibit and identified before the Magistrate by the maker of the statement and that document or object shall, wherever possible, be identified by means of a label or other means of identification signed by the maker of the statement

 (2) Before the Magistrate treats any document or

• bject referred to as an exhibit in a written statement

as an exhibit produced and identified before the Magistrate, he shall be satisfied that the document or

• bject is sufficiently described in the written

statement for it to be identified.

 Committal for trial without consideration

• f the evidence 86 (1)

› Counsel acting › Object to prosecution statements › Not call self or witnesses › No submission

 Establishing a proper chain of continuity of evidence is

• essential. The prosecutor must ensure there is evidence

connecting an exhibit found to its eventual destination; for example, in the case of a drug found by the police the chain might be:

 Officer finding drug;  Officer to whom drug is passed who places it in a secure drugs

cabinet;

 Officer who removes drug from cabinet and takes to laboratory;  Scientist who examines drug and makes statement/certificate of

analysis

 There must be a clearly established link between each

stage in order to avoid the danger of continuity being lost

 Meeting witnesses before hearing  Waiting Room?  Refreshing?  Separate entrances  Withhold name  Reporting restrictions  Witness anonymity

 Bail – Mr Green and Mr Yellow  Thelston Brookes  Section 67 (2) of the Magistrate’s Code of Procedure

Act – Discretion to grant bail for matters over 2 years

 Nature of the accusation  Nature of the Evidence  Severity of the Punishment  Committing Offences on Bail Gentry (1955) 31 Cr App R

195; R v Wharton [1955] Crim LR 56 and Beneby v Commissioner of Police No 28 of 1995 (unreported - Bahamas)

 Interference with the course of Justice (R v Barthelmy

(1852) 169 ER 636)

 Failing to surrender

• Conditions of bail and if appropriate

 Prosecutors must ensure that the

disclosure regime is scrupulously followed, and in particular to ensure that

• nly material that might arguably assist

the defence (or undermine the prosecution) is disclosed (R v Ward (Judith Theresa) [1993] 2 All E.R. 577 )

• Disclosure may be made when disciplinary proceedings against
• fficers are pending (Glenroy Bishop v The State [2000] 60 WIR 370

The Trinidad and Tobago Court of Appeal)

• BUT apply the test in Krishna Persad and Ramsingh Jairam v The State

PC (2001) 58 WIR 433 PC, of whether it is necessary to do so to secure a fair trial. Therefore do not disclose if:



The disciplinary matter is mere complaint or speculation;



The prosecution do not need to conduct investigations searching for evidence for the defence that is not a reasonable line of enquiry R v Brown [1997] 3 All ER769, HL;



Non-material matters. These may include allegations that did not result

in disciplinary action



Is it sensitive material

The prosecution may reasonably apply to the trial Judge to withhold sensitive material where –

 Disclosure would mean that other

investigations could be compromised;

 Disclosure of covert methodology would

undermine future investigations;

 The national interest needs to be protected

(Evans v Chief Constable of Surrey [1988] QB 588);

 The identity of an informant needs to be

protected Savage v Chief Constable of Hampshire [1997] 2 All ER 631

• A defendant is not entitled to repeated adjournments to

secure the right to legal representation (Robinson v R (1985) 32 WIR 330, PC);

• Although a defendant should not be denied a

reasonable application for an adjournment for time to retain counsel to prepare his case and to secure witnesses attendance (Willoughby, Reeves and Goddard v R (1996) 54 WIR 57; Dunkley and Robinson v R (1994) 45 WIR 318, PC), the advocate should objectively analyse the grounds for an adjournment and oppose any application that is repeated or would cause an unreasonable delay in the interests of justice;

• Interests of Justice (CPS v Picton (2006) 170 JP 567).



Committal for sentence – section 48 Magistrate’s Code of Procedure Act



R v Newton (1982) 77 Cr App R 13 A Newton Hearing maybe required when the defendant offers offence mitigation, which is contrary to the prosecution evidence and would result in a substantial disparity of sentence



Evidence will be called in the usual way and the prosecution will have to prove their facts beyond a reasonable doubt (R v Gandy (1989) 11 Cr App R (S) 564)



If the prosecution prove their case then the defendant will lose credit for any timely guilty plea (R v Beswick (1995) 160 JP 33)

 Proceeds of Crime – confiscation – take

away the bling!

 Relationship in the region  Engage:



Pre charge – for witnesses



Confirm charging decision



Pre-trial – brief



Post trial – release of material