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
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.
Decision to Prosecute Evidential Test Public Interest Test See Form 1 Conspiracy or PWITS
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 only knew that he was but also assisted or encouraged him in the enterprise."
Section 2(1) definition of Drug Trafficking Offence includes conspiracy 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.
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 of 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)
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)
Presentation Case Summary Exhibits The production of chattels or physical objects 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
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 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 only 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 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: 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 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).
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! Section 28 (3) (a) Forfeiture But can you take his house?