4. Trial Procedures in Magistrates' and Crown Courts

Question 1

If the defendant opts to give evidence, when will they give it?

Answer 1

Before any other defence witness

Question 2

What does the competence of a witness go to?

Answer 2

Whether they are allowed to give evidence

Question 3

What does the compellability of a witness go to?

Answer 3

Whether they can be lawfully required to give evidence.

Question 4

A witness will be deemed to not be competent if they are not able to do what two things?

Answer 4

Unable to:

1. Understand questions put to them as a witness
2. Gives answers which can be understood

Question 5

What is true of all competent witnesses, other than the defendant, the defendant’s spouse/civil partner, and co-defendants?

Answer 5

They are compellable

Question 6

With regard to the defendant’s competence and compellability, what is the situation for the prosecution and defence?

Answer 6

Prosecution:
D is neither competent nor compellable

Defence:
D is competent but not compellable

Question 7

Again however, even though the defendant is not compellable, what can the jury do if they fail to give evidence?

Answer 7

Draw an adverse inference

Question 8

What must generally be true before the jury will hold the failure to give evidence against the defendant?

Answer 8

The jury must think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them, or no answer that would have stood up to cross examination

Question 9

With regard to the competence and compellability of the defendant’s spouse or civil partner, what is the situation for the prosecution and defence?

Answer 9

Prosecution:
Spouse is competent but not compellable
(unless exception applies)

Defence:
Spouse is competent and compellable, unless jointly charged

Question 10

For what three specified offences will a defendant’s spouse be compellable by the prosecution?

Answer 10

Specified offence involves:

1. Assault, injury, or threat of injury to the spouse or a child under 16
2. Sexual offence on a child under 16
3. Attempting, conspiring to commit, aiding, or abetting either 1 or 2

Question 11

What is the situation if the married couple are no longer together?

Answer 11

It is as if they were never married, and the spouse is treated as a normal witness

Question 12

Can an adverse inference be drawn from the spouse’s failure to give evidence?

Answer 12

No

Question 13

With regard to the competence and compellability of co-defendants, what is the situation for the prosecution and defence?

Answer 13

Prosecution:
Co-D is neither competent nor compellable

Defence:
Co-D is competent but not compellable

• become compellable once if they cease to be co-defendants (ie. tried separately), acquitted, or no longer prosecuted.

Question 14

What is a submission of no case to answer and when is it made, and when will this procedure be different?

Answer 14

At the end of the prosecution case, the defence may argue that they prosecution has not presented enough evidence to amount to a prima facie case, either:

1. By failing to adduce evidence of one or more of the elements or the offence, or
2. If the evidence is so unreliable that, taking the evidence at its highest, no reasonable bench, judge, or jury could convict.

Exception
For murder, manslaughter, or GBH OAPA offence - made after all evidence is heard.
* made at the end of defence’s case.

Question 15

What will the court consider when determining whether to dismiss the case following a defence’s submission of no case to answer?

Answer 15

Taking the prosecution’s case at its highest, could a properly directed jury safely convict the defendant.

Question 16

What are the modes of address in criminal court?

Answer 16

Individual magistrates: Sir or madam

Bench collectively: Your worships

District Court judge: Sir or madam

Crown Court judge: Your Honour, or His/Her Honour Judge

Question 17

What are the two circumstances where the special measures presumption applies?

Answer 17

1. Complainants in sexual assault cases.
2. Child witnesses - ‘primary rule’
   * evidence in-chief must be admitted as a recorded video, and any evidence given during cross, must be conducted via live ink.

Question 18

Which witnesses are eligible for special measures?

Answer 18

1) Vulnerable witness
* if under age of 18
* Mentally/physical ill such that w/out meausres, quality of their evidence would be diminished.
2) Intimidated witness
* quality of evidence will be diminished by witness’ fear or distress in giving evidence.

Question 19

Outside the special exceptions, what is the two-stage test the court will consider when determining whether a witness qualifies for special measures?

Answer 19

1) Does the witness satisfy one of the grounds for special measures - vulnerability or intimidation?
2) Would any of the special measures available likely improve the quality of the evidence given by the witness?

• note - judge is legally required to warn the jury that any special measures used cannot prejudice the defendant.

Question 20

What are the eight main special measures for witnesses?

Answer 20

1) Screening witness from the defendant - witness cannot see the defendant.
2) Evidence by link
3) Evidence given in private
* note - defendant cannot be themselves be excluded from the court.
* only available for SA cases or where there are reaosnable grounds to believe any person, other than defendant will seek to intimidate the witness.

4) Removal of wigs and gowns
5) Video-recorded evidence-in-chief/re-examination/cross-examination.
6) Examination of witness through intermdiary
* not available to intimidated witnesses.

7) Aids to communication
* not available to intimidated witnesses.

Question 21

What is the only special measure available to assist the defendant?

Answer 21

Live link evidence, but only where:
1) Suffer from mental disorder, or have a significant intellectual or social impairment;
2) for this reason, unable to participate effectively in giving oral evidence in court;
3) using a live link would enaböe them to participate more effectively.

Question 22

When must the defence serve a defence
witness notice and can its list of witnesses be changed afterwards?

Answer 22

Required to list the witness on a defence witness notice 14 days after prosecution’s initial disclosure.

• List can be amended following submission.

Question 23

When does the defence have a right to make an opening speech, and how it this different from the prosecution?

Answer 23

Crown Court
Defence - only permitted to make an opening speech if calling at least one witness other than defendant.
Prosecution - always make the opening speech, but its right to make a closing speech is restricted. Court has discretion to allow it.

*Magistrates’ Court
*Defence - no right to make an opening speech, but court has discretion to invite defence to recap points in dispute.
Prosecution - make an closing speech only where defendant is legally represented, or where they have introduced evidence other than their won.

Question 24

What is a majority verdict?

Answer 24

12 jurors: 10-1 or 10-2
11 jurors: 10-1
10 jurors: 9-1