The Presumption of Innocence in English Criminal Law - Essay Example

of the of the of the Critical Assessment of a Brief of Evidence from the Perspective of the PoliceOfficer Checking the Brief In Australian Law, the criminal law not only punishes but also affords protection. As per its objectives citizens should not remain docile even under circumstances where their safety is being undermined by some other person. Further, this law recognizes the fact that at times an attacker may get the worse of a bargain in a physical attack and that this in no way implies that the winner of a struggle is guilty of having committed a crime. In Australian law there is no punishment if a person resorts to reasonable self defence. This law has been formulated in such general terms that it is able to include in its ambit almost any situation that may arise. It is the duty of the jury to properly apply its provisions on the basis of the facts of the case. Since, there is a wide variance in the facts of cases this application by the jury is to a very large extent dependant on the application of commonsense and community perceptions. Moreover, the law is such that the level of justifiable self-defence is significantly dependant on the level of danger presented by an attacker. Furthermore, a defendant cannot be convicted for an offence unless the court is convinced first, that the defendant committed the act alleged by the prosecution and second, that the defendant had the intention to commit that act. In other words, it has to be established beyond any doubt that the act was something about which the defendant was aware and had all intent to commit. Such inferences can be drawn if no other rational or reasonable conclusion can be surmised from the evidence presented by the prosecution. 1. Copy of QP9 attached. Has not been attached and it is required as per the provisions of OPM 3.8. 2. Copy of Bench Charge Sheet(s); Summons: Notice(s) to Appear; Attendance Notice attached. Have been attached. 3. Prcis attached (6 or more statements in brief). Have been attached. 4. Index to brief attached. Has been attached but is incomplete. 5. Brief pages numbered. Brief pages have not been numbered. 6. Correct Statute(s). The correct statutes applicable are Criminal Code Bill 1995, Police Powers and Responsibilities Regulation 2000 and Evidence Act 1977. 7. Correct Section(s)/Regulation(s). Clause 27 of the Criminal Code Bill 1995 and section 421 of the Criminal Code 1995 (Entering or being in premises and committing indictable offences). 8. Necessary averment include in charge(s). 9. Correct wording of charge(s). 10. Charge amendment required. The charge should be amended to one of Burglary. 11. Within time/locality jurisdiction. Yes. 12. Authority to prosecute required. Since the charge falls under section 421 of the Criminal Code 1899, the relevant authority is the Magistrate Court. 13. Statement(s) sufficient. No, because the defendant was not properly guided by a solicitor before replying to the questions raised by the police during the interview. 14. Negative statement(s) attached. Not Applicable. 15. Original statement(s) signed/endorsed as per Oaths Act. In accordance with section 110A (5) (c) (ii) of the Justices Act 1886, signatures and endorsements had been obtained. 16. All evidence admissible, including certificates. The defendant's evidence is not admissible as he was not allowed to obtain legal advice. 17. Defences/exculpations negatived. In the Chan Kau case the Privy Council held that: "In cases where the evidence discloses a possible defence of self defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the crime of murder and the onus is never upon the accused to establish this defence1." In this connection in The Queen v Howe2 it was held that, "The state of the law appears to be that once a ground is disclosed by the evidence upon which a plea of self defence may arise, it is essential to a conviction of murder that the jury shall be satisfied beyond reasonable doubt that one or other or all of the ultimate facts which establish that plea were not present. That appears to be the effect of the modern law." 18. Elements able to be proven. Section 3.1 of the Criminal Code defines criminal responsibility in terms of proof of the physical elements and fault elements of an offence and Section 3.2 states that "Liability for the commission of an offence is dependent upon proof of each physical element of the offence together with proof of the fault element that is applicable to each physical element." Section 4.1 defines the physical elements of an offence as conduct, result of conduct and a circumstance in which conduct, or a result of conduct, occurs. Section 5.1 defines fault elements of an offence as intention, knowledge, recklessness and negligence. Subsequent to the raising of the issue of self-defence by the appellant the onus rests on the prosecution to demonstrate that the evidence furnished failed in establishing that defence. This has been shown in Chan Kau v. The Queen3, Woolmington v. Director of Public Prosecutions4 and Regina v. Sharp & Johnson5 and from the judgments in these cases it can be surmised that the moment the accused converts his defence to one of self defence, it becomes the prosecution's duty to disprove such a defence. In the Woolmington v Director of Public Prosecutions,6 the House of Lords held that: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. In Woolmington v D.P.P7, Viscount Sankey LC succinctly indicated that the approach of the common law to the presumption of innocence was that "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt." However, this Woolmington principle was dependant on Parliament legislating to the contrary and the fact remains that legislation has attempted to arbitrarily alter this basic presumption of innocence on several occasions. For instance, 219 out of 540 offences triable in the Crown Court violate the presumption8. In a similar vein it was concluded, in 1972, by a Criminal Law Revision Committee that "we are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only9." However, enactment of the provisions of legal reverse burden of proof continued in an unabated manner10. Analogously, it was held that decision in respect of all factual questions, "including the application of law as expanded by the trial judge, was a matter for the jury11." Moreover, Lord Bingham, while pronouncing judgment commented about the case of Woolmington v Director of Public Prosecutions [1935] A.C. 462, in respect of which he stated (at 666):- the onus [rests] on the prosecution to prove the defendant's guilt where issues of accident or provocation ariseIf it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. In Joshua v. the Queen, Lord Oaksey12, held that: the Lordships are of opinion that it was for the judge to direct the jury as to the elements of the crime of effecting a public mischiefit was for the jury to find whether the appellant was guilty upon those facts. It was a misdirection to tell the jurythat they must convict the appellant if they found that he had spoken the words alleged [As this] usurp[ed] the function of the jury... It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and insofar as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts. In Chandler v Director of Public Prosecutions13 Lord Devlin observed that: the conscience of the jury and not the power of the judgeprovide the constitutional safeguard against perverse acquittalA judge maygive his opinion to the jury [provided] he gives it as advice and not as direction. The present day position is in accordance with the House of Lords decision in the Woolmington case14, which holds forth that: it is the duty of the prosecution to prove the prisoner's guilt subject to what [has been already said] as to the defence of insanity and any statutory exception. If there is a reasonable doubt as to whether the prisoner killed the deceased with a malicious intention [and prosecution has failed to establish such a case] the prisoner is entitled to an acquittal [irrespective of the charge] the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. This principle was reaffirmed by the House of Lords in the Mancini case.15 In this case it was held that intention the Code was not to place the burden of proof of absolute privilege on the defendant. Therefore, it was crystal clear that the general principle was applicable. Despite the fact that self-defence is construed to be a defence, the ultimate onus of its proof is not to be vested with the accused. In the Woolmington case it was clearly established that subsequent to the revelation of the fact that the fatal act was an act of self-defence it becomes the prosecution's onus to disprove this fact or to establish beyond reasonable doubt that the fatal act did not involve self-defence. In this respect it is imperative to instruct the jury as to "whether or not such a plea was actually raised by the accused16." The modern law of self-defence was born during the process of making a distinction between justifiable and excusable homicide. Since, justifiable homicide entails commendation and not blame, the accused becomes entitled to total acquittal without recourse to forfeiture or pardon. Over a period of time this came to include killings occurring during the execution of justice including the prevention of felonies and by logical extension cases of self-defence. Excusable homicide entailed a measure of blame and was excused rather than acquitted and necessitated a pardon and forfeiture and was in respect of "a necessary and reasonable response to a threat to life and limb17." In Lefroy v. The Queen18, Murray J, held that: I am in respectful agreement with that point of view and would not be prepared to follow Markuleski on this point. It seems to me that the jury do not need help to understand that their decisions about the credibility and reliability of the complainant generally will have an overall impact upon their assessment of the extent to which, if at all, they are prepared to rely upon the evidence of the complainant in considering whether or not the evidence as a whole persuades them of the accused person's guilt beyond reasonable doubt in respect of all or any of the offences charged. I see no reason to give a direction which assumes that the jury will react adversely to a challenge to the credibility of the complainant. And rather than promoting a fair trial it seems to me that a direction of the kind envisaged by the NSW Court of Criminal Appeal may work an injustice to the complainant. On the other hand, I agree that it would be difficult to control the way in which the jury might use such a direction in a form of propensity reasoning, impermissibly, in a way which would be adverse to the accused. Under the criminal law, the Prosecution has to bear the burden of proof and if the defendant pleads not guilty, then the prosecution has to shoulder the responsibility of proving all the components of the charge in order to establish the guilt of the defendant. Consequently, in R v Sims19, Lord Goddard CJ stated that: "Whenever there is plea of not guilty, everything is in issue, and the prosecution has to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge or intent." This clearly indicates that the onus of proof rests with the prosecution which has to prove that the defendant had the necessary mens rea and it definitely not the duty of the defendant to prove otherwise. Moreover, a further duty of disproving the defences resorted to by the accused falls upon the prosecution. This is due to the fact that in the absence of such a course of action by the prosecution, a reasonable doubt regarding the defendant's guilt would persist and this would be tantamount to a dereliction of duty by the prosecution. Finally, the standard of proof presented by the Prosecution has to be very high. In Woolmington v DPP20 Viscount Sankey stated the classic approach as, Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt [subject to the defence of insanity and any statutory exception]. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. In that case the defendant had been accused of murdering his wife. The defendant pleaded that the gun had discharged accidentally. The judge directed the jury that once the prosecution established that the deceased had been killed by the accused, the onus of proving that the cause death was not a murder but an accident, rested on the accused. In this case the judge was forcing the accused to prove the lack of the mens rea element. Consequently, in the House of Lords, their Lordships held this to be a misdirection and held that it was the prosecution's duty to prove, first that the defendant had killed the deceased and second, that the killing was deliberate and not accidental, i.e. sufficient malice to be classified as murder had been exhibited by the defendant. 19. Name and Address demanded Name and address of the defendant were demanded. Substantive offence established re PPRA charge. Yes in respect of entering premises. 20. Property seized and explanation provided. Property was seized. Explanation was provided. 21. Property receipt issued. Property receipt was issued. 22. Court order for retention of property obtained. Not applicable. 23. All exhibits referred to in statements. Yes. Continuity of exhibits covered. Yes. 24. All exhibits photographed. Yes. All photographs marked. Yes. 25. Certificate of Incorporation obtained. (Copy attached). Yes and a copy is attached. 26. Medical/other documents subpoenaed. Not applicable. 27. Without warrant Person(s) One. Vehicle(s) Premise(s) - Emergent Search conducted. Not applicable, since the goods were found outside the shop itself as they had been abandoned by the thieves. 28. Magisterial order re emergent search. Not applicable. 29. Purpose of search explained. Not applicable. 30. Reasonable suspicion substantiated. Yes. 31. Search warrant explained and executed. Not applicable. Copy of warrant and notice to occupier served. Not served. Warrant endorsed. Not applicable. Copy of warrant attached. Not applicable. 32. Person(s) detained. Mr. Crook was taken to the police station for an interview. 33. Officer's details provided. Yes. 34. Crime Scene Warrant obtained. No. 35. Notice to produce obtained. Yes. Under schedule 10 PPRA 2000. 36. Surveillance warrant obtained. Not applicable. 37. Covert search warrant obtained. Not applicable. 38. Protection of methodologies applicable. INTERVIEWS AND STANDARD SAFEGUARDS 39. Suspect voluntarily accompanied police. The suspect had voluntarily accompanied the police. 40. Lawful arrest made pursuant to. No, because there was no proper identification of the suspect. 41. Order for removal of person from correction/detention centre obtained. Not applicable. 42. Detention period provisions correctly applied. Not applicable. Extension obtained. Not applicable. 43. Friend or relative/lawyer notified. There was no such notification. The defendant was allowed to contact a lawyer only after the major portion of the interview was over. Friend or relative/lawyer present. No such persons were present. 44. Persons unreasonably interfering excluded. Not applicable. RIGHTS OF VULNERABLE SUSPECTS 45. Child's interview friend present. Not applicable. 46. Requisite capacity establishment. Not applicable. 47. Interview friend for ATSI adult person present. Not applicable. 48. Support person for an impaired person present. Not applicable. 49. Interpreter present. Not applicable. 50. Consular office/embassy notified. Not applicable. CONFESSIONS/ADMISSIONS - ADMISSIBILITY 51. Warning administered before questioning re indictable offence(s) commenced. No, because questioning was being continued even though the defendant wanted to seek legal advice prior to answering. 52. Administration of safeguards electronically recorded. No. 53. All confessions/admissions electronically recorded. Only the confessions were recorded. 54. Correct procedure for reading back a written record. The defendant has to be informed that the portion of the interview not recorded electronically has been written down. This was not done. 55. Correct procedure adopted where suspect does not want to answer questions. Despite the defendant's insistence to seek legal aid before answering, he was subjected to questioning. 56. Correct procedure adopted where suspect later agrees to be interviewed. No, because the defendant's wish to seek legal aid before answering was ignored. ARREST SITUATIONS 57. Suspect advised of arrest and nature of offence. Yes. 58. Written details of arresting officer provided. Yes. 59. Parent/chief executive advised of child's arrest. Not applicable. 60. Arrestee served with a copy of bench charge sheet(s). The defendant was served with notice to appear in accordance with the arresting officer's statement. In accordance with section 214 of the PPRA the police are authorized to issue a Notice to Appear to a person suspected of having committed an offence. The arresting officer had complied with this. WITNESSES 61. Witnesses subpoenaed. Section 3.10.1 of the OPM states that, "The arresting officer or the officer delegated the responsibility is to subpoena all witnesses, including children, who are required to give evidence in a matter. Members of the Service who are required as witnesses are to be appropriately notified, but not necessarily subpoenaed unless particular circumstances dictate that a subpoena is to be issued. A subpoena is also referred to as a summons to witness." In this case no witnesses were subpoenaed. 62. List/Availability of Witnesses (QP 323) attached. The QP323 form has not been appended to the brief of evidence. This form along with the witness contact list has to be attached to the brief as per the requirements of section 3.8.2(xi) or the OPM. TIMELY DELIVERY OF BRIEF 63. Brief received by Brief Checker 17 days before hearing date. (Brisbane Committals only). 64. Delivery of brief to PPC/DPP 14 days before hearing. (If not, explain reasons for lateness and action taken). Section 3.8.16 of the OPM requires the delivery of full briefs of evidence, after checking, to the police prosecutions 14 days prior to the commencement of the hearing. OVERALL INVESTIGATION 65. Investigation is insufficient and inadequate. Due to the identification of several lacunae in the brief it becomes conclusive that the investigation on the whole was unsatisfactory and insufficient. The causes and the recommendations for rectifying the same have been discussed under Point 66. 66. Recommendations: (i). Further action by arresting officer required. a) The arresting officer has to attach a copy of form QP9 to the full brief of evidence. b) Further, the arresting officer has to attach a copy of the Notice to Appear to the full brief of evidence. c) All the required details in the Index to the Brief have to be completed by the arresting officer. d) Each page of the brief of evidence has to be numbered by the arresting officer. e) The arresting officer has to amend the charge of unauthorized dealing with shop goods, correct the section number, correct the address and value of the stolen items. f) A supplementary statement has to be obtained from the complainant. This statement should contain a description of the goods stolen as also their value. In addition it should provide a description of the offender and any injuries sustained. g) The investigating officer has to ensure that page numbers are present in all the statements and that there are no spelling and grammatical mistakes. Further, there should be no hearsay or police jargon in these statements and all exhibits have to be produced in these statements. h) The arresting officer has to ensure that each statement is signed and it should also be ensured that the complainant's statement is witnessed. i) In compliance with OPM 2.13.8 the corroborating officer should not merely copy the statement provided by another officer. j) The investigation officer should attach a copy of certification to the brief. k) Statement should be procured by the Crime Officer and photographs should be attached to the brief. m) The arresting officer should summon all civilian witnesses and complete an availability of witnesses QP 323 and attach to brief. (ii). Substitute or withdraw charges. (report attached). The best course of action available would be to drop all charges, because the manner of identifying the defendant is in violation of section 275 PPRA and section 2.11.3 of the OPM. Moreover, the defendant's rights as granted by sections 249 and 258 of the PPRA have been violated and the admissions of the defendant are unlawful. 67. Comments. (see over). The investigating officer displayed a singular lack of knowledge, ability and competence. He was unable to build up a proper case to prove the charges in respect of these minor offences. A proper compliance with the procedures set out in the PPRA and OPM would have served the purpose of proving the charges. The police statements were of an inferior quality and displayed a significant lack of professionalism. However, what is truly alarming is the unlawful arrest, lack of identification and the general nature of the brief. In order to prevent a serious travesty of justice from taking place, appropriate measures have to be initiated including the provision of immediate training to these incompetent personnel. The criminal investigation process consists of meticulous gathering and analysis of facts and evidence from the scene of the crime. The reason for such minute and careful gathering of evidence is in order to accurately conjecture as to what had transpired and how it had happened. The next step in this process involves the identification of the person or persons who could have committed the crime. Due to the nature of the process and the event, several persons will perforce have to be interviewed by the police during their investigation of the crime, and several of these witnesses will be neither required nor will their presence be relevant at trial. During the investigation stage the police need be restricted in their actions by the laws of evidence and this proves to be of immeasurable help in as much as the knowledge that someone has previous convictions for a similar offence might be useful in identifying a suspect. It is an altogether different matter when charges have to be framed against a suspected person and at that stage it becomes imperative for the police to realize that such evidence may not always be admissible in court. Moreover, it is essential for the police to know that without sufficient admissible evidence obtention of a conviction at trial may not be possible. This makes it imperative, first, for the suspect to be charged with the offence and second, to be presented in court to stand trial. Most importantly, the procedures should be followed meticulously and there should be no room for incompetence or highhandedness as was exhibited in the case discussed above. Works Cited Ashworth and Blake. The Presumption of Innocence in English Criminal Law, 1996 Crim. L.R. 306, at 309. Chan Kau v. The Queen (1955) AC 206. Chandler v Director of Public Prosecutions (1964) A.C. 763, pp 803-04. Director of Public Prosecutions v. Walker (1974) 1 WLR 1090, at 1094. Eleventh Report, Evidence (General) Cmnd 4991 of 1972, para 140. Joshua v. the Queen, Lord Oaksey (1955) A.C. 121, 129-130. Lefroy -v- R (2004) WASCA 266 Mancini v Director of Public Prosecutions [1942] AC 1, 11 per Viscount Simon LC. Regina v. Lambert (2001). UKHL 37. Reg v. Lawson and Forsythe (1986) VR 515, pp 554-568. Regina v. Sharp & Johnson (1957) 1 QB. R v Sims (1946) KB 531, at 539. R. v Wang (2005) 1 W.L.R. 661. The Queen v Howe (1958) 100 CLR 448, at 459. Woolmington v. Director of Public Prosecutions (1935) AC 462. Read More