Lect. 0 General Principles in Criminal Law.doc.

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GENERAL PRINCIPLES IN CRIMINAL TRIALS
In criminal trials, a defendant is presumed innocent unless proven guilty. This means
that unless evidence is tendered in court that proves his guilt, he will walk free.
The type of trial an accused is subject to and the type of court an accused's matter is
brought before is largely dependent on the type of offence the accused is charged
with.
Offences are classified by mode of trial or category of offence. Summary trials are
held before Resident Magistrates or Justices of the Peace.
Summary Trials take place where the accused is charged with a summary offence or
a hybrid offence. Where the offence is a hybrid offence, a Resident Magistrate may
elect to try the offence summarily, but must obtain the consent of the accused.
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Outside of scheduled offences, where a Magistrate may determine is suitable for trial
summarily, statutes sometimes stipulate that the person found guilty may be liable to
a different sentence on indictable conviction.
The prosecution presents a complaint to the Magistrate alleging that the person
named has committed some specific offence. The complaint must specify the
statement of the offence and sufficient particulars to substantiate the laying of the
complaint.
If a statute creates a summary offence, the person charged is tried in a court of Petty
Sessions by a Justice of the Peace, with a further appeal to the Court of Appeal.
A court of summary jurisdiction is a justice of the peace or a magistrate exercising
special statutory summary jurisdiction.
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Indictable Trials
If the officer of the court designated by statute does not sign the indictment, it will be
invalid.
A person charged with an indictable offence is taken before a Resident Magistrate,
who then orders a trial on indictment.
When an offence is charged outside the jurisdiction of the R.M., the accused must be
committed to stand trial at the Circuit Court.
Indictable trials are heard before a jury, except those involving guns, which are heard
before a Judge alone.
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Felonies and misdemeanours
The principal original felonies were homicide, rape, theft, robbery, burglary and
arson. A felony was more serious than a misdemeanour.
The felonious status of an offence may be determined by reviewing the definition in
the statute or assessing the severity of the penalty, but this is not always the best
guide.

Some procedural differences between felonies and misdemeanours

During trials for felonies the accused must be present throughout the proceedings,
but for trials on misdemeanours the accused's presence is strongly recommended
but not required. Offences of misprision and compounding a felony do not extend to
a misdemeanour, and an action for damages based upon a felonious act on the part
of the defendant is not maintainable until the defendant has been prosecuted. The
police have power to arrest without warrant on reasonable suspicion of a felony
having been committed, but not for a misdemeanour unless a breach of the peace
has been committed in his presence.
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Arrestable and Non- Arrestable Offences
Some jurisdictions have reclassified felonies and misdemeanours into arrestable and
non-arrestable offences. A private citizen may arrest without a warrant.
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TYPES OF CRIMINAL TRIALS
From the above, one should get a sense that there are various degrees of gravity
where crimes are concerned. Serious cases are heard on indictment, less serious
matters are heard summarily.
In a criminal trial by jury, the judge is the arbitrator of law, and has the limited right to
call witnesses himself. He should allow both sides to cross-examine any witness
called by either side.
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The English Court of Appeal considered an appeal without a transcript of the
relevant evidence, but felt that the judge's handwritten notes provided sufficient
information to reach a proper decision. The judge must sum up the trial by
addressing the jury in open court, and must give directions in law and analyse the
evidence, if necessary. The summing up does not need to follow a prescribed
format. In summing up, judges should outline the respective roles of judge and jury,
and tell the jury that the prosecution must prove the case beyond a reasonable
doubt. The judge must explain to the jury the elements of the offence and must
ensure that the defence is put forward fairly and adequately.
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When hearing cases by judge alone, judges must determine the questions of law
and facts and arrive at a verdict. They must also ensure that the trial is conducted
according to the Rules of Procedure and Evidence.
In Jamaica, Resident Magistrates are given the right to try certain indictable offences
indictably. In other territories, they must do so summarily. The Resident Magistrate
must make enquiry to determine whether the offence was committed within his
jurisdiction physically and as prescribed by statute, and may make an order for
preliminary enquiry. If no preliminary case is made out against the accused, the case
must be dismissed.
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The Resident Magistrate acts as both judge and jury, and decides questions of law
and facts, then applies the law to the facts of the case to arrive at a verdict.
The main function of the judge is to interpret the law, while the main function of the
jury is to determine the facts. The jury is not to be persuaded to find the defendant
guilty based on the judge's point of view. Both the prosecutor and the defence have
the right to challenge prospective jurors before a jury is finally selected. A
peremptory challenge must be made as the juror is about to be sworn.
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In wholly exceptional cases, a trial judge may permit challenge for cause of all
prospective jurors without laying the foundation of fact individually against each juror.
In Jamaica, a defendant has 7 pre-emptory challenges for murder/treason and 5 in
other cases, and a prosecution has 7 or 5 for each defendant as the case may be. A
juror may be successfully challenged for cause on the basis that he is biased or does
not satisfy the qualification requirements.
Both the defence and prosecution can make challenges for cause to the jury, which
may be made either to the array or to the polls.
A person cannot be a juror if he is not 18 years old, not 65 years old, cannot speak,
read and write English, or is awaiting trial for an indictable offence.
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All Jamaicans are required to serve on the jury if called upon to do so by the
Registrar of the Supreme Court. A Judge, R.M. or coroner may excuse a person
whose name is on the jury list if satisfied that the person is disqualified or exempt
under provisions of the Jury Act.
The presiding judge may excuse a juror from sitting for good cause, and the Court is
empowered to add bystanders (talesmen) to the jury if necessary, provided that
these talesmen are not disqualified or exempted by law.
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THE BURDEN OF PROOF IN CRIMINAL TRIALS
The legal burden is the obligation imposed on a party by a rule of law to prove a fact
in issue, and the standard of proof required depends on whether the proceedings are
criminal or civil.
The prosecution must prove the elements of the offence charged beyond a
reasonable doubt, or the fact finder must acquit.
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In Woolmington v DPP, the prosecution had the burden of disproving malice
aforethought, but in cases of automatism, provocation, duress, self defence and
accident, the defence had the burden of proof.
The appellant pleaded self-defence, accident and provocation at his trial for murder,
but the trial judge did not make it clear that the question of self-defence had actually
arisen.
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In Bratty v. AG, the appellant was convicted of murder in spite of three defences,
including that he was in a state of automatism, was confused and deficient in reason,
and was guilty but insane.
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R v. Edwards
D was charged with selling liquor without a justices' licence. He contended that the
clerk to the justices had to keep a register of licences, and the prosecution had to
prove absence of a licence.
The prosecution had to prove every element of the offence charged, except for
offences arising under certain provisos or exemptions.
In the case of Sec 22 (7) of the Dangerous Drugs Act, the burden of proof is on the
accused by necessary implication.
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The statute is concerned with offences committed by a special class of persons, or
with the licence of specified authorities.

Sec 20 of the Firearms Act states:

A person may not be in possession of a prohibited weapon or ammunition except
under a Firearm User's Licence.
When a person is charged with being in possession of a prohibited weapon, the onus
is on him to show that he was in possession in accordance with the provisions of the
Act.
A person may not be tried a second time for the same offence if he was previously
acquitted or convicted on the first trial.
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The evidential burden is below the legal burden and the party who normally bears
the legal burden of proving a particular issue also has evidential burden. The party
who has an evidential burden need not have the legal burden.
The standard of proof varies in criminal and civil matters, and depends on how
cogent or convincing the evidence must be.
The judge ruled that documents bearing the appellant's handwriting were admissible
in evidence under section 8 of the Criminal Procedure Act 1865.
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The judge had to be satisfied beyond reasonable doubt that the documents used as
a comparison were written by the appellant. If the judge had applied the civil
standard of proof, he would have been satisfied.
The standard of proof required to be met in a criminal case before an accused
person may be found guilty is the same degree of cogency as is required in a
criminal case before an accused person is found guilty.
Judges must give the jury directions on the standard of proof, but a particular form of
words is not necessary.