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

Presentation by Dan Suter Criminal Justice Advisor

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Know the role of the prosecutor at all stages

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

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

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Managing disclosure requests

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Better awareness of witness care and handling of exhibits

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How to manage a common disclosure issue

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How to oppose adjournments

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How to accept guilty pleas and role in the sentencing process

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Advise case/ liaise with police

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Guide police

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Assess evidence – weed out weak cases/strengthen weak cases

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

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Determine whether charge is correct.

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Advocacy

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Bring cases to court

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Representing prosecuting agency to outside community

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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

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Strong moral compass

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Scrupulously fair

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Objective

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Passionate

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Empathetic

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Incorruptible

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

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What decisions do you have to make?

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What principles do you employ to make those decisions?

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

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Have you had any of your decisions questioned/challenged?

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How do you justify the decision you took?

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

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

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Do you have the power to discontinue a case? Discuss Section 88 of the Constitution – do you discuss with the DPP before withdrawing entering a nolle?

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Likely issues

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Admissibility of evidence

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

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

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

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

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

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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

 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."

 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

 Exhibits – PI – Indictable Procedure Act

 Section 34(3): The evidence tendered by the

prosecution at the inquiry shall be in the form of

documentary evidence

 Section 35(3)(b):The following evidence falls within

this subsection- (b) the documents or other

exhibits (if any) referred to in such statements

 Section 42 (2) The examining magistrate shall

cause all exhibits referred to in the statements

• f witnesses and tendered in evidence by the

prosecution to be inventorised and labelled, or

• therwise marked, so that they may be

identified at the trial.

 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

 Remember at PI can exclude the public

Section 32(1)(b) The examining magistrate in their discretion order that no person other than the officers of the summary jurisdiction court, the persons engaged in the prosecution, and the accused person, and his attorney-at-law, if any, shall have access to or remain in the room

• r building in which the inquiry is being held,

which shall not be deemed to be an open court, if it appears to him that the ends of justice will be best served by so doing;

 Change of Venue of PI section 27

 If persons out on bail could, as it were, go

• n the run and thereby not be available to

stand their trial, or in the case of extradition proceedings, put themselves beyond reach for rendition to the requesting state, this will not only stultify the administration of justice but also harm international cooperation between states in the fight against crime.

 IN THE MATTER OF RHETT FULLER, a prisoner

awaiting an extradition hearing Action No 425 A. O. CONTEH CJ

 In Belize however, there is no general statute on bail. There

are however, some statutory provisions relating to the matter.

 For example, section 4 of the Juvenile Offenders Act -

Chapter 94 of the Laws of Belize, provides for bail of children and young persons who are arrested.

 sections 56 to 70 of the Indictable Procedure Act -

Chapter 93 of the Laws of Belize provide for the issue of bail generally.

 section 10 of the Criminal Justice Act 1992 - No. 26 of 1992

expressly in Part IV puts limitation on the right to bail in certain cases before the Magistrates Courts. It is worth noting however that by Act No. 6 of 1994, the Criminal Justice Act 1994, in Part lll, an express statutory discretion was granted to Magistrates as to the grant of bail, but then only for special reasons to be recorded in writing.

 Section 16 (2) of 1992 Act shall admit to

bail any person charged with an offence where quantity in excess of those specified in section 17 (1) (a) - not applicable to Mr Green and Mr Yellow.

 However section 16 (2) (c) and (d) for Mr

Yellow – but “...other than drug trafficking offence”

 Bail – Mr Green  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

• Disclosure may be made when disciplinary proceedings

against officers 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:

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The disciplinary matter is mere complaint or speculation;

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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;

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Non-material matters. These may include allegations that did

not result in disciplinary action

• 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).

 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)

 Consider section 27 Misuse of Drugs Act –

Committal for Sentence

 Section 29 and 30 Misuse of Drugs Act:

Forfeiture of Car – section 29 Forfeiture of Proceeds of Drug Trafficking –

section 30