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1、Monika Rahman Autumn 2007 Page 1 of 107 CRIMINAL EVIDENCE Professor Patrick Healy/Isabel Schurman/Bernard Grenier Autumn 2007 Monika Rahman (Based on Ungers) I. BASIC PRINCIPLES .3 1. Preliminary Considerations.3 2. Burdens if the judge accepts that on the information received in a sworn statement t
2、hat theres enough evidence, then youve gone from being a suspect to becoming the accused. The only way that the charge can go is in a court. Defence may try to challenge whether theres enough evidence. Things can change at any point. Imaginary charge: Assault causing bodily harm: intentional use of
3、force against someone without his consent Prosecution begins with a charge laid by the information/indictment (in this case the information). Prosecution would have to show some use of force, that the act was intentional, and possibly to disprove any defence raised by the Crown. Decide whether you c
4、an get a conviction and if its in the public interest to prosecute. Would have to consider what kind of evidence you have; compile list of witnesses. When a charge is laid in a criminal matter, Crown must disclose information not subject to privilege to the defence. Must let defence know what your c
5、ase could be/is. Who might we want to hear from? oCrown brings out each witness one by one and the defence has an opportunity to cross- examine each one. So the evidence from witnesses comes out during the trial (given under oath). oVictim ask them if they consented. Theres an opportunity to cross-e
6、xamine the witness. Defence might ask questions to test reliability of victims answers. Monika Rahman Autumn 2007 Page 5 of 107 Rule against splitting of the case: Requires the Crown in principle to present the whole of its case because accused is entitled to know the case it has to meet. Cant wait
7、until the defence presents its case and then bring something up. Prosecution cannot succeed if judge/jury does not feel the Crowns case has been proved. Defence now has to decide whether it will say nothing further on the basis that the Crown has not proved their case. This depends on skill, and the
8、re is always some risk. Motion to direct a verdict of acquittal there is not enough evidence here Between Crown and defences case, defence can change its plea. Defence can call its own witnesses. If its trial by judge alone, lawyers can make final submissions to the judge, including strengths and we
9、aknesses of the evidence. If its trial by jury, judge will sum up the relevant evidence and the jury will have to be instructed by the judge on the law they have to apply to the case. Read readings under burdens and standards of proof and Woolmington. 2. BURDENS evidentiary burden The ingredients of
10、 the offence are the substantive criminal law. If prosecutor chooses to do nothing at the beginning of the trial case dismissed. Prosecution hasnt proved anything; hasnt presented any evidence. Accused can bear a burden, but only if it chooses to put something at issue (e.g. a defence) Has the burde
11、n been discharged? It is a question of law for the judge whether prosecution has discharged evidential burden. oAir of Reality: Evidential burden is discharged if theres an “Air of Reality”. oE.g. Bernard case proving intoxication - “I dunno, I guess I was all drunked up.” this is not sufficient for
12、 a jury to determine reasonable doubt, no air of reality. Standard to be met to discharge Prosecutions burden: whether a reasonable jury properly instructed could (not would) find that the evidence proves the issue BRD. Standard to be met to discharge the burden of the accused: whether a reasonable
13、jury could (not would) find a finding of reasonable doubt based on evidence adduced. oIt is genuinely a burden if the evidence hasnt already been presented in the Crowns case. The defence would only produce evidence for a new issue. (ii) Legal burden: Burden borne by a party to prove an issue before
14、 the court. oAlso called the burden of proof; ultimate burden Monika Rahman Autumn 2007 Page 6 of 107 In criminal law, the Crown must prove each of the elements of the offence beyond a reasonable doubt and disprove any defence before the court. General Rule: Defence does not have to prove anything p
15、resumption of innocence. Reverse Onuses: Exception to the rule that defence doesnt have to prove anything statutory oE.g. In strict liability cases, defence has burden to prove due diligence etc. oE.g. In the case of insanity Quantum for reverse onus: Even where there is a legal defence, the defence
16、 has a burden to prove that on a balance of probabilities (not BRD). Imposition of reverse onus on the defence necessarily violates the presumption of innocence. Consider: Crown has to prove the whole of the case BRD, and normally disproves defence BRD. What if you have a reverse onus on the defence to prove something on a BoP? Lets say the evidence raised by the defence discharges the evidential burden (BoP) and even casts reasonable d
