The Quick Law Series
Criminal Litigation
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The Basic Basic Principl Principles es Charles Mwaura Kamau
[ A A series of study notes notes precisely designed designed to make make the process process of revision fun and most importantly effective. Welcome to the A Class. No more preexamination panic]
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4 PREFACE
Firstly, I have endeavored to give a concise summary of the core principles and procedures of criminal litigation as best as I could, (taking into account the targeted level as well as the purpose), however, human nature should be taken into account when reading the booklet. All I Ask is that, you will be slow to judge but, quick to advice. Secondly, I have taken great care to make sure that the materials within the booklet are not covered by copyright protection. For the copyrighted material, they have been used to the extent covered by fair use and proper referencing and acknowledgement adhered to.
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Thirdly, in the course of reading this booklet, the reader should constantly be conscious that this is more of a guide book, designed to serve as a springboard to further research. Lastly, but not in any way least, no warranties are given as to the accurateness of any principle of law. For that matter, the reader is urged to always consult the primary sources, (legislation and recent relevant case-law) for the correct position of law. CMK
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Foreword
“If I can give a student one corner of the subject and he cannot find the other three, the lesson is not worth teaching” Confucius, Natural justice is not observed if the scales of justice just ice are tilted tilted against against one side side all through through the proceedings. proceedings. The principle of audi alteram partem means partem means that both sides must be fairly heard… The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content.
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Table of Contents Chapter Chapter 1............................................................ ......................................................................................... ..................................... ........20 .................................................................... ............. 20 CRIMINAL LAW PRINCIPLES....................................................... Elements of a Crime ...................................................... ............................................................................ ...................... 20
Presumption Presumption of innocence ................................... .............................................................. ........................... 31 Burden of proof......................................................... ............................................................................... ...................... 36
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© @CMK 2013 Standard of proof ................................... ............................................................... ......................................... ............. 38 Right to Silence ......................................................... ............................................................................... ...................... 41 Rule against retroactivity retroactivity ................................................................ ................................................................ 42 Classification Classification of crimes......................................... crimes.................................................................... ........................... 43 Chapter Chapter 2............................................................ ......................................................................................... ..................................... ........47 Defences Defences........................................................ ..................................................................................... .......................................... ............. 47 Minority age .................................................................... .................................................................................... ................ 58 Insanity ....................................................... .................................................................................... ..................................... ........ 58 Diminished Responsibility Responsibility ............................................................... ............................................................... 60 Intoxication ......................................................... ..................................................................................... ............................62
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© @CMK 2013 Automatism Automatism......................................................... ..................................................................................... ............................ 73 Self Defence ......................................................... .................................................................................... ........................... 77 Provocation ......................................................... ..................................................................................... ............................81 Duress and Necessity ......................................................... ...................................................................... ............. 86 Double jeopardy and res judicata ................................................... ................................................... 87 Chapter Chapter 3............................................................ ......................................................................................... ..................................... ........96 ........................................................................... ................. 96 CRIMINAL PROCEDURE.......................................................... Bail......................................................... ...................................................................................... ........................................ ........... 107 Case Files ........................................................ ...................................................................................... ................................ 109 ............................................................................ .................... 110 Prosecutor’s file ........................................................
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© @CMK 2013 Defence File...................................... ..................................................................... ............................................. ..............122 Court File ................................................................... ....................................................................................... .................... 125 Chapter Chapter 4................................................................. .............................................................................................. ............................... 127 ................................................................................... ..........................127 The Trial Process ......................................................... Plea-taking Plea-taking proceedings: proceedings:............................................................... ...............................................................128 Procedure at plea stage ................................................................ ................................................................ 129 Hearing Process; Trial Court......................................................... ........................................................... 132 132 Examination-In-Chief Examination-In-Chief (Direct Examination) Examination) .................................. .................................. 136 Cross Examination Examination ............................ .......................................................... ............................................. ............... 137 Re-Examination Re-Examination ......................................................... ............................................................................. .................... 138
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© @CMK 2013 Closing Submissions ...................................................................... ...................................................................... 139 139 Defence Hearing........................................................ ............................................................................ ....................141 Judgment................................................................................. ....................................................................................... ...... 142 Chapter Chapter 5................................................................. .............................................................................................. ............................... 152 ........................................................................................ ................................... ...... 152 EVIDENCE ........................................................... General Principles Principles of Evidence Evidence ................................. .......................................................... ......................... 152 The Best Evidence Rule ...................................................... ................................................................. ........... 153 Relevance and exclusionary exclusionary rules of evidence ............................. 154 Admissibility Admissibility ......................................................... .................................................................................. ......................... 157
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CRIMINAL LITIGATION LITIGATION
The fundamental concepts of justice hold that rules and procedures will not avoid constitutional challenge simply because they are authorised by a statutory enactment enactment or by a common law rule. Our Criminal Law and our legal regimes were generally inherited from the English legal system. (Having in mind Section 3 of the Judicature Act) English jurisprudence has played a fundamental role in molding the practice of law in this country. Therefore it is only prudent that we study the English development for pointers on the natural trajectory of some of the basic principles of criminal law.
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It is important to note from the onset that, the purpose of criminal law is to prohibit behavior that is considered as a serious wrong against an individual or against some fundamental fundamental moral moral or social value in society. Thus, the content of the criminal law and the associated sanctions also reflect the moral or social values held by a society, and these will inevitably change over time. What this means is that, over time, the boundaries of criminal law does shift.
Aims and objectives At the end of the booklet the reader is expected to:a) Have a basic understanding of principles of criminal law.
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b) Identify circumstances where there may be some conditions or circumstances present which suggest that either no criminal liability should be attached.(defences) c) Understand the relevant pleadings and documents necessary for criminal litigation. (file contents) d) Apply the Criminal Procedure Code , the Penal Code and other statutes relating to criminal litigation; e) Understand the processes of criminal litigation generally; f) Have a passing understanding of the rules of evidence which are crucial in criminal litigation. litigation.
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NOTE This booklet is designed to supply the reader with only the basic principles and should therefore be used in conjunction with The
Constitution of Kenya as well as other relevant statutes such as; 1. Criminal Procedure Code Cap 75 Laws of Kenya 2. Penal Code Cap 63 Laws of Kenya 3. Magistrates Courts Act Cap 10 Laws of Kenya 4. Evidence Act Cap 80 Laws of Kenya
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5. Judicature Act Cap 8 Laws of Kenya 6. Limitations of Actions Act Cap 22 Laws of Kenya 7. Prisons Act Cap 90 Laws of Kenya 8. Dangerous Drugs Act Cap 245 Laws of Kenya 9. Narcotic and Psychotropic Substances (Control) Act No. 4 of 1994 10. Children’s Act No. 8 of 2001 11. Criminal Law (Amendment) Act No. 5 of 2003 12. Witness Wit ness Protection Protection Act, 2006
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13. Sexual Offences Act,2006 14. International International crimes Act, 2008 The main areas covered in the booklet are: Criminal law : this is the substantive law of crimes. This is one of the laws legislated to guide human conduct in relation to another human being and society in general.
conducted. Criminal Procedure: The process by which Criminal law trial is conducted. Law of Evidence: this entails Obtaining facts (Investigations) and the
means of proving them.
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Trial Advocacy- The skills involved in the litigation process
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Chapter 1 CRIMINAL LAW PRINCIPLES The primary purpose of the criminal law is to prohibit behavior that represents a serious wrong against an individual or against some fundamental social value in society. Elements of a Crime
It is a basic principle of Criminal law that a person may not be convicted of a crime unless the prosecution proves beyond reasonable doubt that:
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he caused a certain event or state of affairs which is forbidden
by Criminal law (‘ actus reus’ )
he had a defined state of mind in relation to causing the event or
the existence of the state of affairs. (‘ mens rea’ ) that is, a person must also have a guilty mind. Actus reus
The action of the suspect may be deduced from:
Result crimes:
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The actus reus generally requires that the defendant did an act which is defined by law as being Criminal Offences such as murder, assault or rape. These offences require proof of a result as part of actus reus. Conduct:
Some offences only require the action of the suspect to be proved. This offences of conduct do not require proof of any result or consequence.
Circumstances:
For other offences the actus reus of an offence may consist of elements external to the actions of the suspect.
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For example, in an offence of “being drunk and disorderly”, the circumstance of the suspect being drunk and being found disorderly by those who see him proves the offence. NOTE Some offences do not require any fault at all, but where fault is required for criminal liability it may incorporate any or any combination of the following ingredients:
Intent as to a consequence, a term which covers X’s purpose and also X’s foresight of a virtually certain consequence;
Knowledge or belief as to a present fact (which exists);
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Belief as to the highly probable or certain existence of a present or future fact (which may or may not need to exist)
Belief as to the possible existence of a present or future fact (which may or may not need to exist), including the concept of “subjective recklessness recklessness”
Dishonesty Negligence, requiring proof that X’s conduct fell below the standard to be expected of a reasonable (and sober) person.
REMEMBER
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An act does not make make man guilty of a crime, unless his mind is also guilty. Mens Rea
As we have already seen, it is a general principle in Criminal law that the accused person possesses the necessary mens rea at the time the actus reus is committed. Mens rea denotes the guilty mind. The mind must be guilty at the time of
carrying out the prohibited prohibited act.
There are 4 states of mind which separately or together constitute mens rea;
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Intention: Direct intention
This means the suspect had the purpose, object, desire or ultimate aim to commit the crime.
oblique intention
This means the suspect had an aim to commit one crime but ended up committing another. another.
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NOTE
It is difficult to define intention except consider each case on its own merits. Recklessness:
This means the taking of unjustified risks. The court considers the following factors when deciding if an act was reckless:
the likelihood of consequences, consequences,
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how socially useful the acts are and what and how easily precautions could be taken, to avoid or minimize risk.
Negligence
Negligence means ones actions fell below the standard of an ordinary reasonable man. It covers the person who does something a reasonable man would not do or not doing something a reasonable reasonable man would do.
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The test is objective based on ‘an ordinary reasonable man’ rather than
subjective, ‘based on the defendant himself’ . Transferred intent or malice:
The law holds that the defendant is liable for an offence if he has the necessary mens rea and commits the actus reus even if the victim differs from the one intended, or the consequence occurs in a different way. For example: Where a defendant fires a gun intending to kill X, but misses and instead kills Y, he will not be able to escape liability for the murder of Y simply because he had the intention to kill X.
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Exceptions to the rule of ‘ mens rea ‘ Strict Liability offences
This are Crimes which do not require intention, recklessness or negligence
as to one or more elements in the ‘ actus reus’ are are known as offences of strict liability or absolute prohibition. The offences prescribe certain conduct and are regulatory in nature. V icarious Liability offences offences
These are offences whose liability is visited on the suspect for the acts of others e.g. principal and agent relationship.
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For example employers such as, Companies are charged through Board of Directors, for the acts of it’s employees.
Presumption of innocence The presumption of innocence is a vital, constitutionally guaranteed, right of a person accused in a criminal trial and that right has been expressly recognised in all of the major international human rights instruments currently in force. Under the presumption of innocence principle the court must start with the idea that the accused has not committed the offence charged until the prosecution proves otherwise.
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The burden of proof is on the prosecution and any doubt should benefit the accused. In Sweet v Parsley [1970] AC 132 , Lord Reid stated that: “ there there has for centuries been a presumption that Parliament did not
intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea ….. it
is firmly established by a host of authorities that mens rea is rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary”
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Thus, in interpreting an offence-creating statutory provision, the starting-point for the court is, as Lord Nicholls of Birkenhead put it in B (A
Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460 , is: “the established established common law
presumption
that a mental element,
traditionally labeled mens rea , is an essential ingredient ingredient unless unless Parliament Parliament has indicated a contrary intention either expressly or by necessary implicati on” on”
The underlying rationale of the presumption is an essentially simple one: that it is repugnant to ordinary notions of fairness for a prosecutor to accuse a defendant of crime and for the defendant to be then required to
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disprove the accusation on pain of conviction and punishment if he fails to do so. burden of proof
The burden of proof always lies with the prosecution and once a defence is raised the accused is entitled to be acquitted unless the prosecution 1
disproves that defence.
1
Woolmington v. DPP (1935). (1935) .
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It is not for the accused to establish his innocence, but for the prosecution to establish his guilt. While the prosecution must prove the guiltiness of the accused, there is no such burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy to the court of his innocence. NOTE This is a strong presumption, not easily displaced. The more serious the crime, the more severe the potential consequences of conviction, and the less readily it will be displaced.
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The presumption of innocence is infringed where the burden of proof is shifted from the prosecution to the defence.
Burden of proof The burden of proof is concerned with the question of whose duty it is to place evidence before the Court. Exceptions
There are exceptions to the rule that the prosecution bears the burden of proof in relation to every issue arising in the course of a criminal trial. Common Law
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If an accused argues that he is unfit to plead then he must prove that unfitness on the balance of probabilities. If an accused raises the defence of insanity or diminished responsibility he must prove, on the balance of probabilities probabilities that he was insane at the time of committing the offence. Statute
The second exception is where the accused raises as statutory defence and the statute provides for the accused to prove this defence on the balance of probabilities. Balance of probabilities
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This means that the one can only succeed if he shows that his version of events is more likely t han not.
Standard of proof The standard of proof is concerned with, what weight the Court should place on the evidence that is placed before it. The standard of proof is the threshold that the prosecution must meet in order to secure a conviction against the accused.
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The standard of proof in criminal law is higher than on the balance of probabilities. Guilt must be shown beyond reasonable doubt. The standard of proof was explained by Proof beyond reasonable doubt
This does not mean proof beyond the shadow of a doubt. It means that if the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence
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“of course it is possible, but not in the least probably,” the case is 2 proved proved beyond reasonable doubt, but nothing short of that will suffice. What this means is that if there is any doubt at all, in the mind of the judge, then the accused is entitled entitled to the t he benefit of that doubt d oubt and must be found not guilty. NOTE
2
Per Denning J. in Miller v. Minister for Pensions (1947)
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In criminal matters the main role of the defence counsel is to create doubt in the mind of the judge.
Right to Silence The right to silence is guaranteed by the Constitution. The right includes a privilege against self-incrimination and is closely related to the presumption of innocence. The reasoning is that: If it is the role of the prosecution to prove that an offence has been committed then logically it should not be the responsibility of the accused person to facilitate the prosecution by being
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forced forced by the t he police to give them evidentiary materials that will be used against him. NOTE Suspects enjoy a privilege not to incriminate themselves. That is “to have no comment”. On any questions they opt not to answer.
At the trial an accused person may also choose not to testify.
Rule Rule against again st retroac retroactivit tivity y Another widely accepted principle of criminal law is the rule against retroactivity, which prohibits the imposition of ex post facto laws (i.e.,
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laws that would allow an individual to be punished for conduct that was not criminal at the time it was carried out).
Classification of crimes Misdemeanors
This means petty crimes. Felonies
This means serious offences. Inchoate and Choate crimes
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This means incomplete and complete criminal activity, examples
include: incitement, conspiracy and attempts Specific intent
Offences of ‘specific intent’ always require proof that X acted with a particular state of mind, that is, the state of mind required by the legal definition of the fault element. An example of a state of mind labeled as a ‘specific intent’ is the fault element of murder, the intent to kill or cause grievous bodily harm. The prosecution must always prove that X acted with one of these two states of mind.
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REMEMBER:
The notion of ‘specific intent’ extends to some states of mind which are not intentions. Basic intent
Offences which do not require the prosecution to prove that X acted with
a ‘specific intent’ have come to be known (confusingly) as offences of ‘basic intent’. This means, it is possible for X to be convicted of a ‘basic intent’ offence even if X did not act with the state of mind required by the legal definition of the fault element.
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In DPP v Newbury [1977] AC 500 , Lord Salmon said: “What is called a basic intention . . . is an intention to do the acts which
constitute the crime .”
NOTE
The terms ‘specific intent’ and ‘basic intent’ are not particularly enlightening. The case law provides some guidance, but there is no single, uniform test to be applied, and a very high degree of uncertainty.
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In other words there are a number of alternative theories as to the meanings of these two terms, and the criteria for categorising offences in this way which on their part cause a great deal of uncertainty.
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Chapter 2 Defences “Defences are an embodiment of complex human notions of fairness and morality” 4
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th
F or example See smith and Hogan criminal law cases and materials 9 ed. OUP
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Criminal law recognises that certain acts should not be followed by criminal proceedings, or at least should not lead to a conviction, because of the presence of some specific factor or circumstance, such as the legitimate entitlement to defend oneself in the face of unlawful force.
4 Robinson “Criminal Law Defenses: A Systematic Analysis” (1982) Columbia Law Rev, Vol.82 (2):199 -291 at 203.
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A fundamental reason why the criminal law contains a number of defences is because it is not a tool for vengeance, but is one of the means of attempting to ensure the peaceful existence of a community. It is important to distinguish between a defence and mitigation. Where a defendant successfully raises a defence, he or she is found not guilty, or is convicted of a lesser offence. By contrast, mitigation means the defendant has been found guilty but due to other factors his sentence should be reduced. Categories of defences
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Defences in the criminal law can be categorised in a number of ways. For example; The first category would be where the defendant lacked sufficient capacity to commit the crime, such as because of age or other similar reasons such as insanity. A second category of defences arises where the defendant has engaged in the required physical element (actus reus) and fault element (mens rea)
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of an offence but where some justifying or excusing circumstance 5
arises, such as legitimate defence or provocation.
A third categorisation is to distinguish between defences that can lead to an acquittal, such as legitimate defence, and a defence leading to a reduction only in the nature of the crime involved, such as Intoxication . A fourth method differentiates between defences that apply to all crimes (such as legitimate defence), and those which apply to particular crimes
5
T his have sometimes been described as defences in the true sense. See Ormerod Smith
& Hogan’s Criminal Law 11th ed (Oxford University Press 2005) at 247.
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only (such as provocation and diminished responsibility, which for example only apply to murder and which also involve, as already mentioned, a reduction from murder to manslaughter only). One further well-recognised matter is based on the underlying rationale for the defence: whether it is justificatory or excusatory.
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Another category is known as non-exculpatory defences this caters for defences that for reasons other than blameworthiness or a lack of capacity, a trial is unable to continue. Included here are, renunciation of a
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See Chalmers Criminal Defences and Pleas in Bar of Trial (Thomson, 2006) at Chapter 1.
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right to prosecute, entrapment, other pleas in bar of trial (such as pretrial publicity or insanity), time bars, delay and res judicata. Defences based on justification and excuse
Justification defences and excuse defences are similar in the sense that the actus reus and mens rea for the offence has been established but they are distinct in other important respects. respects. Justification-based defences imply that the conduct of the accused was the right thing to do – it was acceptable – even though it satisfied the definition of the offence.
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By contrast, excuse-based defences deem the conduct of the accused as unacceptable and wrong, but there is a reason why the accused should not be blamed, he or she should be excused or forgiven. The philosopher HLA HL A Hart refers refers to justified justified conduct as: as : Something the law does not condemn or even welcomes” “ Something
While excuse is claimed when What has been done is something which is deplored, but the “ What psychologica psychologicall state of the agent when he did it exemplified exemplified one or more of
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a variety of conditions which are held to rule out public condemnation 7
individuals.” and punishment of individuals.”
NOTE A claim of justification justification focuses primarily on the act while a claim of excuse excuse focuses on the conduct of the individual.
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Hart Punishment and Responsibility: (Oxford: Clarendon Responsibility: Essays in the Philosophy of Law (Oxford: Press, 1968) at 212-222.
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In other words ‘Claims of justifications concede that the definition of the offence is satisfied, but challenge whether the act is wrongful; claims of excuse concede that the act is wrongful, but seeks to avoid the attribution of the act to the actor. A justification speaks to the rightness of an act; an excuse, to whether the actor is accountable for a concededly
wrongful act.”8 REMEMBER
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Fletcher Rethinking Criminal Law (Boston: Little, Brown, 1978) at 759.
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There are conflicting views as to whether it really matters whether a defence is a justification or an excuse. 9 There is little difference so far as the acquittal of the person relying on the defence is concerned. The defendant is not concerned whether the defence is labeled as a justification or an excuse, excuse, but rather is only concerned concerned with whether the defence frees them of criminal liability.
Lack of Capacity Defence
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Systematic Analysis” (1982) 82 Col LR 199. S ee Robinson “Criminal Law Defenses: A Systematic
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Minority age Those who are considered as being under the age of criminal responsibility are held to be incapable of committing a crime. Sec 8 of Penal code holds that those under the age of 8 years cannot be held criminally responsible for their acts.
Insanity Broadly speaking, an accused person’s sanity may be relevant to the criminal law in two ways. Firstly, the accused may claim to be insane at the time of the commission of the crime.
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Secondly, the accused may claim to be insane at the time of the trial
and therefore ‘unfit to plead to the charge’. This second category is technically a matter of procedure. The common law defence of insanity was set out definitively in the English case R v M’Naghten1843) 4 St Tr (ns) 817. in 1843 where it was held: -
Firstly, it must be clearly shown that, at the time of committing the act, the defendant was labouring under a defect of reason reason caused by a disease of the mind as not to know the nature and quality of the act he was doing,
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secondly, that if he did know it (the nature), that he did not know he was doing what was wrong.
NOTE The legal definition of ‘disease of the mind’ does not necessarily coincide with the medical definition.
Diminished Responsibility This defence is a partial defence to murder, reducing the verdict of murder to manslaughter. For the defence defence to apply there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be
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a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility. responsibility. In other words, the suspect in question must be only partially accountable
for his actions. And … one can see running through the cases that there is implied ... that there must be some form of mental disease.10
10 Per Lord Alness HM Advocate v Savage 1923 JC49 at 51.
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Intoxication Traditionally, the ‘intoxication excuse’ provided no defence for the criminal offender and, as far back as 1551, it was held in Reniger v Fogossa
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“if a person that is drunk kills another this shall be a felony, and he shall
be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but in as much as that
11
( 1551) 1 Plowd. 1,at 19; 75 ER 1, at 31
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ignorance was occasioned by his own act and folly, he shall not be ” privileged thereby thereby ”
From this early decision, the rule or defence of intoxication has evolved and may provide a defence to the committal of a criminal act in stringent circumstances. In the English case DPP v Beard it was held that intoxication may negate intention in an offence involving specific intent, thus laying the foundations for the modern position of classifying offences for the purposes of the plea.
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This approach was confirmed and became settled in the landmark UK 12
decision DPP v Majewski In the case the UK House of Lords unanimously decided that the plea of intoxication is available in all crimes of specific intent but, reaffirming the traditional rule on self-induced intoxication, held that it is generally no answer to crimes of basic or general intent.
the Majewski rule
12
DPP v Majewski [1977] AC 443, 495
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According to the House of Lords, D is liable for an offence of “basic
intent”: (1) if D commits its external element without the fault usually required for liability, if the absence of such fault results from self-induced intoxication; or
(2) if D’s self -induced -induced intoxication causes him or her to commit the external element as an automaton. According to Lord Elwyn-Jones:
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“If a man of his own volition takes a substance which causes him to cast
off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty t.” mind certainly sufficient for crimes of basic intent.”
To give an example, suppose it is proved that D unlawfully killed another person while under the influence of alcohol or some other drug voluntarily taken, but it is reasonably possible that D lacked the intent to kill or cause grievous bodily harm on account of his or her intoxicated
state. In such a case, D is not liable for the “specific intent” offence of
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murder but D is liable for the alternative “basic intent” offence of manslaughter. Thus, while it is true that D will not be held liable for an offence of
“specific intent” if he or she acted without the state of mind required for liability, D will (usually) be liable for an alternative offence of “basic intent” (regardless of the fact that D acted without the state of mind required for that offence). Justifying the rule
The chain of reasoning advanced by the House of Lords in support of the Majewski rule may be summarised as follows:
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(1) the maintenance of order and the need to keep public and private violence under control is the prime purpose – or one of the prime purposes –o f the criminal law; (2) self-induced intoxication through the consumption of alcohol has been a factor in crimes of violence, such as assault, throughout the history of crime, but in recent decades the problem has become more acute by virtue of the voluntary consumption of other drugs; (3) to allow D to avoid all liability in a case where he or she has caused injury or death to another person, on the basis that he or she lacked the fault element for liability because of self-induced intoxication, would fail
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to give effect to the prime purpose of the criminal law; in particular, it would:
(a) “leave the citizen legally unprotected from unprovoked violence where such violence was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing or what were
its consequences”; and (b) “shock the public, ... rightly bring the law into contempt and ... certainly increase one of the really serious menaces facing society today” (4) to provide the community with sufficient protection, therefore, there
must be a “substantive rule of law” to the effect that “self -induced -induced
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intoxication provides no defence” to an allegation that D committed an offence of “basic intent” (5) the interests of the accused are adequately protected in that the trial
judge or magistrates magistrates will, when sentencing, “always “always carefully [take] [take] into account all the circumstances ... before deciding which of the many
courses open should be adopted”. NOTE The fact of self-induced intoxication does not, however, supply “evidence of mens rea … for crimes of basic intent”.
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A distinction needs to be drawn between the usual case of voluntary intoxication and the rare case of involuntary intoxication.
The situation where D’s drink or food h as been surreptitiously laced with a drug, or D has been physically restrained and the intoxicant forcibly administered, are obvious examples of involuntary intoxication.
As Professor Glanville Williams’ observes, “it would be inimical to the safety of all of us if the judges announced that anyone could gain 13
exemption from the criminal law by getting drunk”. drunk”.
13
G. Williams, Textbook of Criminal Law (2nd ed, 1983) p 466.
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REMEMBER
No universally logical test for distinguishing between crimes in which voluntary intoxication can be advanced as a defense and those in which it cannot; there is a large element of policy; 14
categorisation is achieved on an offence by offence basis.
14
See Heard [2007] EWCA Crim 125, [2008] QB 43, para 32, accepting counsel’s submission at para 12(ii
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It is well established that a person charged with an offence of
‘specific intent’ may rely on evidence of self-induced intoxication to avoid liability for that offence.
Automat Automatism ism Automatism occurs where a defendant suffers a complete loss of selfcontrol caused by an external factor such as being hit on the head and then losing all awareness awareness of their actions.
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Essentially automatism involves more than a claim that the individual lacked mens rea (which he or she did); it involves a claim that he or she is not acting, it is a complete denial of the actus reus. Therefore, in order for a defendant to plead automatism it is necessary to show that they suffered a complete loss of voluntary control, that this loss of self-control was caused by an external factor and finally that they were not at fault in losing capacity. As mentioned above, the requirement of loss of self control being caused by an external factor is an important aspect and ultimately distinguishes inanity from automatism. If the loss of self-control is caused by an internal factor the person is classified as insane. It can be extremely difficult at
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times to distinguish between internal and external factors. Examples of external factors include a blow to the head or the taking of prescribed medication. Finally, as regards, the third requirement, a defendant cannot plead automatism if he or she is responsible for causing the condition. For example, if the defendant’s mental state is caused by taking alcohol or an illegal drug he or she cannot plead automatism. In Bailey [1983] 1 WLR 760 the Court of Appeal came to the following conclusion as to the scope of the defence of automatism:
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[S]elf-induced automatism, other than due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution have proved the necessary element of recklessness.
The word “recklessness” was used by the Court of Appeal to refer to the fault required of D in bringing about the condition of automatism. To be liable for an offence requiring subjective recklessness, it seems D would need to have been subjectively reckless, at least, in bringing about his or her condition:
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Self Defence “The right of self defence… is founded in the law of nature. In cases of
necessity the law of society fails: and the victim is remitted to his natural rights.” Foster
15
The law has always recognised that in certain situations individuals may have to use force: to protect themselves or others; to protect property; to prevent the commission of a crime or assist in a lawful arrest.
15
See a summary of Foster’s position in Perkins & Boyce Criminal Law (3rd ed Foundation Press 1982) at 1121,
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Legitimate use of force represents a balance between the needs of an ordered society and the right of individuals to ensure their own protection. General scope of the defence
The general principle of legitimate defence is that the law allows the
accused to use such force against a threat that is ‘reasonable ‘and necessary in the circumstances, as the accused believes them to be. However, this causes a number of difficulties. For example; -
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What is reasonable? How should “lethal defensive force” force” be defined?
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Should lethal defensive force be defined at all? Should a generalised generalised test of “reasonableness” prevail? How do the elements of proportionality, imminence and necessity apply?
‘reasonableness’
A classic pronouncement of the approach can be found in the decision of the UK Privy Council (formerly the final court of appeal from many British Commonwealth states) in Palmer v R [1971] AC 814 .: “Some attacks may be serious and dangerous. Others may not be. If there
is some relatively minor attack it would not be common sense to permit
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some action of retaliation which was wholly out of proportion to the necessities necessities of the situation…Of situation…Of all these matters the good sense of the t he jury will be the arbiter.”
Some of the above questions are beyond the scope of this booklet.
16
16
For an in-depth discussion discussion of some of of the issues see Simmonds Central Issues in Jurisprudence 2nd ed (Sweet & Maxwell 2002) Chapter 7.
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NOTE Self-defence operates as a general defence, in that it applies to all criminal offences.
Provocation Provocation can be described as some act or series of acts (or words), done by the deceased to the accused which causes the accused to
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temporarily lose his or her self control at the time of the wrongful act. Loss of self control is a key element in the defence of provocation When raised successfully it operates to reduce murder to manslaughter. Thus, even where the defence is successfully raised, the defendant will still be held criminally liable for the lesser charge of manslaughter. In R v Duffy[1949] 2 All ER 932, 932 ,Devlin J summarised the defence in a sentence which is now regarded as a classic direction in provocation cases: “Provocation is some act, or series of acts, done by the dead man to the
accused which would cause in any reasonable person, and actually causes
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in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind”.
Thus, provocation exists where it is possible to answer the following three questions in the affirmative: affirmative: Did the provocation cause the defendant to lose self-control? Did the defendant defendant kill the victim while still out of control? Having accessed the gravity of the provocation to the particular defendant by reference to his or her personal characteristics, could an
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ordinary person be driven by provocation of that degree to act as the defendant defendant did, that is, to kill? In essence, provocation is made up of two requirements. First, the provocation had to be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he or she committed the unlawful act which caused death. Secondly, the provocation had to be such as would have made a reasonable man act in the same way. In modern times, these two requirements have come to be known as the subjective and objective elements or tests of the defence of provocation.
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For the purposes of the law on provocation the reasonable person means: “[A]n ordinary person of either sex, not exceptionally excitable or
pugnacious, pugnacious, but possessed possessed of such powers of self control control as everyone is entitled to expect that his fellow citizens will exercise as it is today”.
17
R v Camplin [1978] AC 705, 717 (Lord Diplock).
17
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Duress and Necessity The defences of duress and necessity cater for cases where the defendant breaks the law in circumstances where his freedom of choice was constrained by serious threats. Typically the defendant breaks the law rather than see the threats carried out. The plea of duress applies in cases where the threats emanate from
a human source and have the form ‘Do this or else’; whereas the plea of necessity covers situations where the threats are circumstantial or nonhuman in origin.
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Double jeopardy and res judicata “The prosecution cannot be allowed to say heads I win, tai ls ls we play again”.
18
According to the Oxford English Dictionary, "double jeopardy" means "the placing of a person in jeopardy twice for the same offence, against which there is a common-law immunity".
18
A khil Reed Amar, Double Jeopardy Made Simple [1997] 106 Yale Law Journal 1807
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In The Ampthill Peerage [1977] AC 547 Lord Wilberforc W ilberforce e said: "[a]ny determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that conclusion, it closes the book. The law knows, and we we all know, know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gaps. But there are cases where the certainty of justice justice
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prevails over the possibility of truth. . . and these are cases where the law insists on finality.”
The point was emphasised by Lord Simon of Glaisdale:
“But the fundamental principle that it is in society's interest that there should be some end to litigation is seen most characteristically in the recognition by our law ─ by every system of law
─ of
the finality of a
judgment. If the judgment has been obtained by fraud or collusion it is considered considered as a nullity and the law provides machinery machinery whereby its nullity can be so established. established. If the judgment has been obtained obtained in consequence of some procedural irregularity irregularit y, it may sometimes be set aside. But such
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exceptional cases apart, the judgment must be allowed to conclude the
matter.” This appears to be the foundation of, and the justification for, the rule of res judicata, that it is in the public interest that those engaged in a
litigation, whether directly or indirectly, should be able, and should indeed be required, to carry on with their business in the future on the basis that the decision reached by the courts is final. The corollary is that it is not in the public interest for (scarce) public resources and time to be occupied more than once in re-examining the same issue between the same private parties.
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Further, the rule against double jeopardy is said to promote the proper carrying out of the function of investigating and prosecuting crime – or at least to prevent, or discourage, impropriety in those functions.
19
If it
were not there, it is said, then there would be a tendency for police and prosecutors not to exert themselves unduly before a first prosecution, because there would always always be the opportunity of a second chance. NOTE
19
I an Dennis, "Rethinking Double Jeopardy" [2000] Crim LR 933 at 941: "The double jeopardy rule is said to promote promote efficient efficient investigat investigation ion and prosecution of of offenders offenders because the police and the CPS know that they have h ave only one chance of conviction)
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A person who has been wrongly convicted has the right to appeal or review of the case in order to clear his name and reputation. The second aspect of treating an acquittal or conviction as final is that not to do so would be to alter one of the most fundamental elements of the relationship between the citizen and the State. REMEMBER In order for a plea of res judicata to succeed on the basis that a one is being charged with the same crime the charge must be substantially identical to that in the earlier trial.
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Where there is a material difference between two indictments the plea of res judicata cannot be sustained. A plea of res judicata will be upheld only where a previous trial against the accused for has been brought to a conclusion by the delivery of a verdict, whether of conviction or acquittal. . Where the proceedings are deserted pro loco et tempore tempore prior to the return of a verdict, no plea of res judicata will lie.
In order to found a plea of res judicata, the original proceedings must have been competent.
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A plea of res judicata will be successful where the accused has previously stood trial, which has been brought to a formal conclusion, for the "same offence." In considering a plea of res judicata, the court will look to the substance of the complaint against the accused and not merely to its form. The acquittal of the accused on a substantive charge will not bar his later prosecution for perjury in relation to sworn evidence given by him at his trial. A person who has been tried and acquitted, or tried and convicted, on a charge of assault may subsequently be tried on a charge of murder or culpable homicide if, if, after the first trial, the victim dies. In such a case case death is a new element and creates a new crime.
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Chapter 3 CRIMINAL PROCEDURE
The process of criminal procedure begins with then investigation and arrest of the suspect and culminates in the acquittal or sentencing of the defendant. How Criminal Cases Are Initiated:
Criminal cases are initiated by a complaint being lodged. A complaint can be lodged lodged with the police. police. magistrates.
The complaints complaints can also be lodged lodged with
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When a complaint is lodged at the police station it is recorded in the Occurrence Book (OB). The OB records who the complainant is and what the complaint is. The decision to file a case depends on the information in the OB, the police will take a statement from the complainant. The police then have to carry out further investigation, which includes collection of evidence such as witness statements as well as exhibits. Once the police decide what kind of offence has been committed, they draw a charge sheet.
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The police can then proceed and make an arrest of the suspect. The provisions are such that in most cases the police can arrest a suspect without a warrant of arrest. Under Section 21 (1) of CPC In making an arrest the police officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action.
Under Section 21(2) if a suspect resists arrest, the police officer may use all means necessary to effect the arrest.
Arrest Defined
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The Criminal Procedure Code (Cap. 75 of the Laws of Kenya)
(hereinafter the “CPC”) “CPC ”) does not define ‘arrest’. ‘arrest’. The Law Dictionary defines ARREST as follows: -
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It is to derive a person of his liberty by legal authority Seizure of an alleged or suspected offended or to answer for a crime
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Placing of a person in custody or under restraint, usually for the purpose of compelling obedience to the law.
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Arrest can, therefore, be defined as the restraint imposed on a
person’s personal liberty pursuant to a written law or to orders of a competent authority for the purposes preventing the commission of, or charging that person with, an offence.
Case Law Position Case law suggests that the operative word in arrest is restraint of civil liberty. an arrest: (i) occurs when a police officer states in certain terms that he is making an arrest; or
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(ii) occurs when an officer uses force to restrain the individual concerned; or (iii) occurs when by words or conduct the officer makes it clear that he will use force if necessary to restrain the individual from going where he wants to go; but (iv) does not occur where he stops an individual to make inquiries. How the law controls the power of arrest
20
See Hussein v Chang Fook(1970) 2 WLR 441
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The Constitution The constitution provides that any person arrested and detained should be informed promptly; in a language he fully understands the reasons for his arrest. (Article 49)
The CPC If a person forcibly resists the attempt to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest but no use is allowed of greater force than was
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reasonable in the particular circumstance in which it was employed or was necessary for the apprehension of the offender. Section 24 of CPC provides that the arrested person must not be subjected to more restraint than necessary to prevent escape. NOTE What is reasonable depends on the particulars of the case; there are no hard and fast rules to govern all inevitable circumstances.
However, However,
where the force used is unreasonable, the police officer is liable to be charged with offences arising from their attempts to arrest a suspect.
Arrest warrants and search warrants
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Sections 100 to 117 generally deal with warrants of arrest. Section 102 provides for a warrant of Arrest. It states that every warrant of arrest shall be under the hand or a Judge or a Magistrate issuing it. This means it must be in writing and bear the seal of the court and state the offence for for which it is being issued. It shall also state the name and who is supposed to implement that warrant of arrest, it can be addressed to the Officer in charge of a police station. The warrant must state the offence with which the person against whom it is issued is charged.
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The warrant is directed to the Police Officer against the suspect and the witness. Section 104 says that the warrant may be directed to one or more police officers within which the court has jurisdiction or generally generally to all police officers of the area. In practice the court will issue a warrant and direct it to the Officer Commanding Station (OCS), it is the OCS who then directs a certain officer to execute the warrant. The warrant will stay stay in force until it is executed. executed. If the warrant warrant is issued the court will make an order and it shall be mentioned in 14 days time, if the person is not apprehended the court will keep on mentioning until the suspect is brought before court.
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Under Section 107 the officer shall notify the substance thereof to the suspect to be arrested, it means that when one is to be arrested they must go to the suspect and tell them they have a warrant and explain for what the warrant has been issued. It is wise counsel to demand that the police show the suspect the t he warrant warrant of arrest. arrest. There should be no ambush by the process, a suspect suspect must be well aware of what they are being arrested for. Once somebody has been arrested, the police officer shall without unnecessary unnecessa ry delay bring the suspect to court without delay. delay. Under the constitution the suspect must be brought to court within 24 hours. (Article49 (f))
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If the police wanted to search a premise they ought to go to court and obtain a warrant. Otherwise, one can go to court and complain. Further under the Evidence Act there are provisions that where evidence is unlawfully obtained it cannot be used in court.
Bail Bail is an agreement between the accused and court that the accused shall appear when required in court. Sureties are also an agreement that they guarantee that the accused shall appear in court when required.
Article 49 (h) of the constitution guarantees the right to bail unless there are compelling circumstances.
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The court is the one that sets sets the bail terms. terms. Court has discretion discretion to determine the kind of bail they can can award to the suspect. Whenever security is taken the officer to whom the warrant is directed shall forward the bond back to the court. station. Section 123 gives power to the police to issue bail at the police station. Once a suspect is taken to court depending on why the warrant was issued, a plea will be taken and depending on the kind of charges a suspect may be released on bond.
Confessions
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Section 25A of Evidence Act holds that ‘Any confession or admission of fact shall not be proved unless made in court. Or made by the suspect at the police station in the presence of a representative and the statement be taken by an officer above the rank of Assistant Inspector.
Case Files In criminal matters there are three crucial files 1. Prosecutor’s file- mostly prepared by the police 2. Advocate’s file- prepared by the defence counsel 3. Court’s file- opened by the court registry
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Prosecutor’s osecutor ’s file file The police file is made up of sub-files as expounded below.
Subfile “A” - This has the initial report The complainant/victim/witness makes a report to the Police station. The report is recorded in the Occurrence Book (OB) the complaint is assigned to an officer for investigations. This first report forms the initial report in the police file
Custody Record
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If there is an arrest of a suspect (s), the place of arrest , time, date, condition of suspect and names of officers who conducted arrest are recorded in the OB. All reports are marked A(1) A(2) sequentially
Sub-file ‘B’. - This contains the Sketch plan and the Documentary exhibits In the process of investigations exhibits exhibits are collected. The documentary exhibits are official and personal documents and include expert evidence. The documents vary from case to case.
The exhibits are marked (B) 1 (B) 2 sequentially.
Sub-File ‘C’ - This contains Experts Report
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Experts’ reports include, doctor’s report P3 form, postmortem report, ballistic report, document examiner, government analyst report and explosive expert’s reports. Each report is accompanied by the expert’s statement setting out in simple language contents of a report. They are marked C (1), C (2) etc.
Sub-file ‘D’ – this has the statements of prosecution witnesses The Investigation officer will interrogate all persons with information about the crime being investigated. The proposed witnesses will record statements at the Police station and they will be housed in this sub file.
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The witness’s further statement on identification of the suspect will be in this file. The ID parade officer will also record the statement and attach the ID parade form (P156) and place it in this sub file.
Sub-File ‘E’ ‘E’-- this has the Charge and Cautionary Statements Of Accused Persons as well as Statement Under Inquiry The Investigation officer will interrogate the suspect on the alleged offence any statement made will be kept in this sub-file. The Charge must be drawn in a particular way and if the police bring the charge they will produce it in form of a standard charge sheet that all police have.
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The charge is not standard because every offence that can be charged is different and there is no template as NO CHARGE is like the other. other. The circumstances are different. Particulars are always different.
The
requirement for drawing the charge is that one has to be very sure of what offence has been committed. When somebody makes a report that an offence has been committed, the police must look at all the statements from the witnesses and the complainant. They must then consult the statutes or the penal code to certify which offence has been committed. Once the police have determined what offence has been committed then the rules that will follow is that,
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every offence that is committed must be charged separately] Counts constitute every individual offence that have been committed in a single transaction. Depending on the number of offences that have been identified one uses e.g. Count 1, Count 2 etc. One should never have counts that are totally unrelated, there must be a nexus.
The Charge will have a statement of offence which will be the Statement that will tell you what the offence is e.g. Theft contrary to Section 279(b) to join charges. of the Penal Code. One has to be careful not to
The particulars of the offence essentially deal with the circumstances under which the offence was committed.
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Section 214 of the CPC it states that where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
This section is to the effect that if it appears to the court that the charge should be amended, it can move itself and require the prosecutor to amend the charge. Alternatively the prosecutor can make an application
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to the court to amend the charge. A new charge is brought with red under-linings under-linings to show that it has been amended. Substitution means that there is a totally different charge. If in the course of evidence it emerges that other charges that ought to have been drafted were not drafted the court can direct that the other charges be drafted, the police will then go and draft and bring a new charge sheet. Provided where a charge is so altered the court shall call upon the accused person to plead to the additional or substituted charges. The court must take a fresh plea giving the accused to admit or deny.
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Where the charges are altered the accused may demand that the witnesses or any of them may be recalled and give evidence afresh or be further be cross-examined by the accused or his advocates. This means that once a charge is altered or amended the accused is at liberty to require the witnesses who had already given evidence to be recalled to either given evidence afresh or to be re-examine.
Sub-File ‘F’ – ‘F’ –This This includes Investigation Diary The
Investigation
officer
conducting
investigations
will
interview
witnesses and suspects. He will visit the crime scene, hospitals, mortuary, offices, prisons, courts and residences. residences.
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The times, dates and places should be clearly indicated and recorded. The events must be accurate as they occurred.
Sub-File ‘G’ ‘G’ – – Contains Contains a Copy of Charge Sheets and Related Documents Upon completion of investigations, the Investigation officer will prepare the charges in a charge sheet and place in this file.
Sub-File ‘H’ -Accused Previous Records and List of Exhibits As Well As List of Witnesses. W itnesses. The fingerprint form of the accused will be placed in this sub file.
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The Accused person’s record will also be in this file The prisoner’s personal effects will be listed in this sub file, documents, watch, wallet wallet ,shoes and money. money. Inventory of items recovered from accused or his home or place of arrest that relate to the case or are deemed to be stolen items will be in in this file so will be the List of the witnesses to testify.
Sub-File ‘I’‘I’- this contains the Covering Report This report is by the Officer in charge of investigations giving the chronology of events and conduct of investigations culminating to the
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decision to charge the suspect and arraign him in court with specific charges. The Investigation officer in giving the findings will cross reference with relevant witness statement and exhibit.
Sub-File ‘J’ – ‘J’ – contains contains the Minute-Sheet The sub-file contains correspondence between police personnel with regard to the case. This includes Correspondence between the Investigation officer & Officer In charge of the Station, State Counsel in the DPPs office and Advocates.
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Defence File File The defence advocates file contains the following:
Instruction note This is a note of the exact action required of the advocate, advocate’s name, name and address of the person giving instructions and retainer.
Client attendance form : This form indicates name of client, date of attendance, length of time spent attending the client/representative and Purpose (s) of attendance.
Court attendance form :
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attendance, length of attendance, file
reference, name of client, case number and parties, name of advocate in attendance, counterpart in attendance, name of judicial judici al officer, officer, purpose of the court attendance,
instructions instructi ons for the said attendance, attendance, what
transpired transpired in court and further instructions instructions as a consequence of of the court attendance.
Charge sheet: After taking the plea (not guilty), the advocate will be given a copy of the charge sheet.
Bail/bond documents:
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If the offence is bailable, then the advocate’s file will have the necessary copies of documents necessary for the admittance of the client to bail. NOTE These are copies because the originals are deposited in court.
Legal Opinion/Brief; It is also appropriate for the advocate to render a preliminary legal opinion to client on the strengths and weaknesses of the case. This may be important for out of court settlement.
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Witness statements and documentary exhibits: On attending court, after taking plea, the advocate would ordinarily apply to court for copies of the statements and exhibits to be relied on during trial.
Court File The following are court documents found found in the t he in the Court file; Charge sheet Remand Warrant
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Chapter 4 The Trial Process
The trial procedure is conducted in the following stages;
Plea-taking proceedings: proceedings: Sec. 207 & 208 Criminal Procedure Code. Hearing: Trial in Magistrates’ courts: Prosecution, Prosecution ,
Defense,
Judgment, Pre-sentence proceedings , Sec. 202 -218 CPC
Hearing: Trial in High Court: State’s Case, Defense, Judgment, Presentence proceedings Sec. 274- 329 CPC.
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The trial procedure is conducted in the following stages;
Plea-taking proceedings: S 207 & 208 Criminal Procedure Code The Plea taking process contains 4 elements; -
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Appearance Appearance or arraignment arraignment in court by the suspect(s) Formal statement ( Charge sheet) The substance of the charges read to the accused persons
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Response of the charges by the accused persons are made
Procedure at plea stage The substance of the charge(s) shall be read to the accused person, by the court clerk, he shall be asked whether he admits or denies the truth of the charge. The plea is read in a language the accused person understands.
Magistrates’ courts use English or Kiswahili languages. If the accused person cannot understand either of the 2 languages, an interpreter is availed by the court. The prosecution will outline the facts surrounding the offence to the court.
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If the accused person admits the charge(s) the admission shall be recorded recorded by the court as nearly as possible po ssible in the words used by him A mention and hearing date, bond or bail terms and the trial court to hear the matter are given by the plea-taking court.
A guilty plea
If the accused person admits the facts that gave rise to the charge then the court will convict the accused person on the charges admitted.
The prosecutor informs the court if the accused person is a first offender or if he has been convicted before.
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The accused person will mitigate; inform the court the circumstances of the case, his background and any other issue the court should consider before sentencing.
Then the court will pass sentence.
Interlocutory Matters These are the preliminary objections and applications. Any preliminary applications and proceedings made after plea taking and before the hearing of the case will be recorded in the court file.
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Hearing Process; Trial Court
The case is called out, the accused person (s) names and case number by the court clerk.
The court prosecutor states the number of witnesses for the case. Defense counsels introduce themselves and their names placed on court record.
Essentials of a Fair Trial The test of a fair trial is not by establishment of truth or success as seen by victim from conviction of the suspect, or by suspect due to an
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acquittal; but by ensuring that the pre-trial and trial stages are conducted in compliance with the law irrespective of the outcome.
The accused person is entitled to ;
Fair trial within reasonable time An independent and impartial court be presumed innocent till proved guilty tried in his presence. be informed of the charge(s) in language he understands.
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Be given adequate time, facilities to prepare for defense. The accused is entitled to copies of witness statements in order to prepare their defense.
A copy of the judgment Be tried, convicted and sentenced for an offence written down and known to law at the time the offense offense took place
not to be tried twice for the same offence Public proceedings. Private (in camera) proceedings are only allowed as per court order or law.
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W itnesses’/Victims rights in trial -
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Right to protection of the law (Witness Protection Protection Act, 2007) This involves protection of the witnesses & victims operation by
the Witness Protection Unit in the A.G.’s office to deal with; -
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protection protection of witness, escort of witnesses to court, assessment of threat level,
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coordination coordination with other security agencies
Examination-In-Chief Examination-In-Chief (Direct Examination) -
The prosecutor outlines the evidence to prove their case through witnesses witnesses and production of exhibits.
-
The purpose of the examination is to obtain testimony in support of the version of facts in issue or relevant to the issue for which party calling the witness contends.
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Cross Examination The accused or his representative is then entitled to ask the witness questions regarding the evidence he/she has given in court. The purpose of cross-examination is to; -
elicit information concerning facts in issue or relevant to the issue and is favorable to the party on whose behalf the cross – examination is conducted,
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to cast doubt upon the accuracy of the evidence in chief given against such party.
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present the accused person’s line of defense test the credibility of the witness
Re-Examination The court prosecutor may ask the witness questions after crossexamination. -
The questions if asked are to clarify issues brought out during cross-examination.
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New matters can only be introduced with leave of the court.
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When all the prosecution witnesses have testified, the prosecution will inform the court that it is the close of the prosecution case.
Closing Submissions The prosecutor and defense counsel or the accused person will make oral submissions (Closing Statements) to the court on whether a prima facie case is established by the prosecution or not. Submissions contain a summary of the evidence on record, the law that is relevant to the case, the ingredients of the charge(s)and what each party prays the court to do.
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The court will consider the arguments and submissions and find out if the prosecution has made out a prima facie facie case against the accused to require that the accused be put on his defense.
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If such a case is made out, the court will deliver a ruling that the matter will proceed to defense hearing.
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If the prima facie case is not made out, the court will in its ruling, dismiss the case and discharge the accused person under section 210 of the Criminal Procedure Code (CPC).
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The determination will be in writing and reasons will be given for the dismissal and discharge. discharge.
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Defence Hearing -
During the defense hearing, the accused person will exercise the options of giving evidence as prescribed in section 211 CPC.
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The accused person will inform the court the witnesses to be called to testify on his behalf.
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The witnesses testify using the same procedure as that of prosecution witnesses.
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The defense counsel will then make final submissions to the court.
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If the accused person gives a sworn statement and/or the witnesses testify on oath, and they are cross-examined, the prosecution will make final submissions.
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The proceedings close and parties await the judgment of the court.
Judgment -
After, the close of proceedings, the court gives a judgment date or judgment on notice.
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On the scheduled date, the judgment is read out by the magistrate to the accused person and in public in a language he/she understands.
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The court pronounces the conviction or acquittal under section 215 Criminal Procedure Code.
The court in its decision may;
acquit the accused person(s) on some counts and convict on some of them,
Acquit on the charges in the charge-sheet and convict on a lesser charge not in the charge sheet but proved proved by evidence in court
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Acquit on all counts, the accused person is confirmed innocent and set free or found guilty on all counts
Convict on all counts in the charge sheet
The court’s judgment is read out in open court, in the presence of the accused persons, lawyers, lawyers, prosecutors and public.
It is signed and dated by the trial court. The judgment may contain 2 dates, the day judgment was written and the day it is delivered.
Accused Person’s Person’s Record
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If the court convicts the accused person, the prosecution will
read out the accused person’s previous record. -
The record includes previous convictions; the nature, date, sentence imposed and the date of release from prison. The accused person will comment by admission or refusal.
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The accused person must know what is alleged against him and has the opportunity to deny it.
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If he refuses, then evidence is called to confirm the same. Fingerprints are taken afresh for examination with stored criminal cases data at the CID headquarters.
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Mitigation and Victim V ictim Impact Statements Statements -
The accused person will mitigate; inform the court any/all issues the court should take into account during sentencing.
The purpose of mitigation is to enable the accused person show the court why it ought to impose one form of sentence instead of another.
The court ought to establish the history, character, antecedents, circumstances of the offence and all matters relevant before considering the most appropriate sentence to punishment before assessing sentence.
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V ictim Impact Stateme Statements nts (section 329 329 (c) CPC) CPC) are to enable the court to receive, upon convicting the offender and before sentencing, information on the impact of the offence
on the victim and his/her family, where the offence results in death or actual physical bodily harm.
It is not mandatory, the court receives it where appropriate The statement maybe made by the primary victim or family victim
Sentencing
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The court will consider the facts from the pre-sentence proceedings vis-à-vis the types of punishment in section 24 of the Penal Code and the
principles of sentencing; then write and read the sentence meted out to the accused person.
Right of Appeal The convict is entitled in law to contest the decision of the trial court in the High Court. The right of appeal within 14 days should be explained to the accused person immediately after sentence. Fair Procedures under the Constitution
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While the courts at one time may have been less concerned with issues such as the circumstances in which evidence was obtained, the concept of a fair trial, and by extension that fair procedures are adhered to, form the cornerstone of our new constitutional dispensation. The constitutional right to fair procedures required adherence to many of the rules of evidence, including the right to confront and cross-examination.
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“A trial is a proceeding in which finding the truth may require an
understanding of institutional practices with which many have little or no dealing” 21
In a criminal trial, the administration of justice according to law means justice for the People and for the accused, accused, and the admission in evidence
21 Park 51, 60-61.
‗ A
Subject Matter Approach to Hearsay Reform‘ (1987) 86 Michigan Law Review
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of matters which either side wishes to produce must be decided by the same principles of law.
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Chapter 5 EVIDENCE
General Principles of Evidence At a fundamental level, the rules of evidence have the function of identifying and defining the evidence a court may receive in order to arrive at the truth of the matter or issue in dispute, whether in a civil or criminal case.
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The Best Evidence Rule A central concern of the law of evidence is to ensure that unreliable categories of evidence are not used to resolve disputes and that the evidence adduced must be the best evidence available.
The insistence on the production of the “best evidence” is a way of preventing the danger of weaker proofs being substituted for stronger ones. In other words, primary evidence should take preeminence over secondary evidence. Not all secondary evidence, however, is necessarily unreliable and there are a number of qualifications and exceptions to the best evidence rule
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where secondary evidence will suffice, for example where the original is lost or has been destroyed.
Relevance and exclusionary rules of evidence Relevance is a principle used to test admissibility in the law of evidence. Thus, the American writer Thayer stated:
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“There is a principle, not so much a rule of evidence as a proposition, involved in the very conception of a rational system of evidence… which 22
forbids receiving receiving anything anything irrelevant, irrelevant, not logically logically probative”
Relevant and reliable evidence must always be admissible irrespective of its origin, because the object of a trial is to ascertain the facts in issue and the evidence tendered assists in the ascertainment of the facts. Nevertheless, relevance is not an absolute concept and it must take account of general experience.
22
Thayer A Preliminary Treatise Treatise on Evidence Evidence at Common Common Law (1898) 265 at 271.
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NOTE: The issue of relevance as it pertains to the question of admissibility is more complex than determining whether a particular piece of evidence should be admitted into the trial provided it is
“relevant” in a general sense. Thus, a piece of evidence may be relevant but may not be admitted as evidence because it does not attain the minimum threshold of cogency which the law of evidence requires.
23
This is a question of law for a court
(a judge or judges) and the decision is usually made both on determining
23
S ee Tapper Cross and Tapper on Evidence (9th ed Butterworths, Butterworths, 1999), at 56.
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whether the evidence is relevant and whether it is subject to any applicable exclusionary rule. Thus, if the evidence cannot be admitted because of an exclusionary rule, the issue of relevance is of little consequence as it will not satisfy the condition of legal admissibility.
24
Admissibilit Admissibility y No matter how cogent particular evidence may seem to be, unless it 25
comes within a class which is admissible, it is excluded. In order to be
24 25
See Roberts and Zuckerman Criminal Evidence (Oxford University Press 2004) 97.
Lord Reid in Myers v DPP [1965] AC 1001, 1024. 1024.
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admissible the evidence must be legally relevant and not be subject to an exclusionary rule. Further, for evidence to be admissible on the basis of relevance the court must first be satisfied that
the evidence bears a logical relationship to an issue in the case and, that in light of the other evidence in the case, it justifies the time and cost of its reception.
In other words, the evidence must have a probative value related to the facts at issue. The requirement that the probative value of the evidence
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must relate to an issue before the court is sometimes referred to as
the requirement of “materiality”. NOTE It is not easy in all cases to readily draw the line of legal relevance; for instance the logical relevance of the evidence must also be balanced against competing considerations affecting the efficiency and integrity of the judicial system, but confining the evidence to what is pertinent to the issue is of great importance, not only as regards the individual case but also with reference to the expediency of the trial and keeping the focus of the trial on the issues to be considered.
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NOTE The concept of fairness ought to be central in relation to the power of a court to exclude evidence. The question, however, is what fairness requires and how much weight it should carry in answering questions of admissibility.
Hearsay One of the longest established principles of the law of evidence is that, in order to be admissible, any proposed evidence must be relevant to the issues being determined in a civil or criminal case; in other words, it must have what is called probative value, because the purpose of evidence is to
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build up the necessary basis on which to provide proof of the issues in dispute in a civil or criminal case. Another key principle is that, in general, evidence should be capable of being tested in court under oath, notably through cross-examination; so that if a specific piece of evidence is not capable of being tested in this way, it is likely to be deemed inadmissible, even if it appears to be relevant, that is, has probative value. The law takes the view that truth is best ascertained by the unrehearsed answers, on oath or affirmation, of witnesses who have actually perceived the relevant events and who are in the presence of the court. Thus it is desirable to have a person present in court where his evidence can be
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tested by cross-examination and where his demeanour can be observed by the trier of fact. The hearsay rule is an exception to the general principle in the law of evidence that all relevant evidence is admissible, and it applies to testimony given by a witness concerning statements spoken or made by a person who is not produced in court as a witness if the testimony is presented to prove the truth of the facts which they assert. In some respects the hearsay rule involves the competing application of these two principles.
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The hearsay rule is a general rule, subject to many exceptions, that testimony given by a witness concerning words spoken, statements made or documents generated by a person who is not produced in court as a witness is inadmissible if the testimony is presented to prove the truth of the facts which they assert. The two main reasons given for this generally exclusionary approach are: the out-of-court statements cannot be tested by cross-examination and
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they are not made under oath. In other words a witness must be 26
available in court to be subjected to cross-examination.
An example of the application of the hearsay rule would be where a person wishes to testify in a criminal trial about a statement he overheard being made by an untraceable person to the effect that the untraceable person said that she saw the accused fleeing the scene of the crime. If
26
See Morgan ―Hearsay Dangers and the Application of the Hearsay Concept ‖( 1948) 62 Harvard Law Review . 177,
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this testimony is being presented to prove that the statement by the untraceable person is true, the hearsay rule states that this is inadmissible 27
as evidence.
In addition to this example of the application of the rule to testimony about verbal out-of-court statements, the hearsay rule also applies to written out-of-court statements, such as letters or other types of
27
S ee the discussion of the English E nglish case R v Gibson (1887) 18 QBD 537
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documentary records where the originator of the document is not 28
available to testify in court as to its authenticity. Reliance on the oath
One of the reasons advanced as to why a statement that is hearsay is deemed to be unreliable is because it is not made on oath in court. The oath is based on the belief that God would punish a liar. The religious character of the oath therefore means that it embodies the highest
28
See for example Myers v DPP [1965] AC 1001
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possible security which men in general can give for the truth of their
statements.
29
In more cotemporary terms anyone who lies under oath commits an offence known as perjury. Scope of the Hearsay Rule
29
into Some of the Rules Rules of Evidence Evidence Relating to to the Whitcombe, An Inquiry into Incompetency of Witnesses W itnesses (London, 1824), 39.
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It is not always easy to draw a distinction between statements that fall within the ambit of the rule and those that fall outside it. Here are few examples:
Admissions Admissions and confessions One the most important, and oldest, exceptions to the hearsay rule concerns admissions and confessions. In a strict sense, the words
“admission” and “confession” are slightly different in meaning but the law relating to their admissibility is the same. In a criminal trial an admission or confession is regarded with unease because it often arises during police interrogation. interrogation. The law therefore has
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developed many specific rules concerning the admissibility of admissions and confessions. Assuming compliance with these admissibility rules, the rationale for allowing the admission of a self-incriminating statement, in terms of being an inclusionary exception to the hearsay rule, is that “it is fairly presumed that no man would make such a confession against himself if the facts confessed were not true” 30
30 See Grose J in R v Lambe (1791) 2 Leach 552, at 555
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Spontaneous statements connected with the subject matter of the case (the res gestae rule)
The phrase res gestae (literally, “things done”) refers to the inclusionary exception by which a party is allowed to admit evidence which consists of, among other things, everything that is said and done in the course of an incident or transaction that is the subject of a civil or criminal trial. The res gestae exception is based on the view that, because certain
statements are made spontaneously in the course of an event, they carry a high degree of credibility. Lord Normand in the UK Privy Council case Teper v R [1952] AC 480, at
486-487 had the following to say in regard to the issue:
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“The rule against the admission of hearsay evidence is fundamental... Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae… It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. … it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action
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or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”
Despite its long-established long-established position in the th e law of evidence, the res gestae inclusionary exception has attracted some criticism. In the English case
Holmes v Newman [1931] 2 Ch 112 the phrase res gestae was criticised because it provides “a respectable legal cloak for a variety of cases to which no formulae of precision can be applied .”
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Likewise, in R v Ratten [1972] AC 378 it was said that the expression res gestae is often used to cover situations that have been insufficiently 31
analysed.
Dying Declarations Declarations
A dying declaration, made with the knowledge of the imminence of death, is another important inclusionary exception because it may be admitted to prove the circumstances in which the death occurred. Traditionally, the dying declaration inclusionary exception has never been
31
See Cowen and Carter Essays on the Law of Evidence (1956) 4.
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applied to civil claims; and, in criminal proceedings, it only applies to charges of murder and manslaughter. The rule has its origins In the English case R v Woodcock, (1789) 168 ER
352 where the defendant had been charged with murder. The victim had been badly beaten and, two days prior to her death, which occurred from the beating, she told a magistrate that her husband, the defendant, was the perpetrator. The trial court, faced with the difficulty that hearsay was available but the witness was not, surmounted this by developing the dying declaration exception to the hearsay rule. The Court stated: “[T]he general princi ple on which this species of evidence is admitted admitted is
that they are declarations made in extremity, when the party is at the
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point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations considerations to speak the t he truth; a situation situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is created by a positive oath administered in a Court of Justice.” Justice.”
Certain statements of persons now deceased
The common law also relaxed the hearsay rule for certain prior statements of persons who had died by the time civil or criminal proceedings came to trial. There is no general test for admitting the hearsay statements of persons now deceased. Instead exceptions
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developed on an ad hoc basis and were confined to specific situations. These are:
Declarations by deceased persons against a pecuniary or proprietary interest,
Written declarations by the deceased in the course of duty, Declarations by a deceased person relating to pedigree (in effect, blood relationships), relationships),
Declarations by a deceased person explaining the contents of his or her will.
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Public documents
This exception is clearly based on both reliability and convenience. The exception applies to a document that is made by a public officer for the purpose of the public making use of it and being able to refer to it. The following passage from the judgment of UK House of Lord by Lord Blackburn has often been cited with approval: “I do not think that ‘public’ there is to be taken in the sense of meaning
the whole world... an entry probably in a corporation book concerning a corporate matter, or something in which all the corporation is concerned, within that sense. But it must be a public document, and would be ‘public’ within
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it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public 32
making use of it, and being able to refer to it.” it.”
Typical examples include certificates of birth, marriages and death and ordnance survey maps. It is likely that the public official who made the original entries in question may be dead, unavailable or unable to remember the facts recorded in a later court hearing, so it is clear that the rule was developed primarily on the basis of convenience.
32
Sturla v Freccia (1880) 5 App Cas 623
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Equally, such documents can be presumed reliable, but of course it remains possible for parties to challenge the facts contained in them. Testimony in Former Proceedings
A statement statement made by a person while giving evidence, whether orally or by affidavit, is admissible in subsequent proceedings, between the same parties concerning the same (or substantially same) subject matter if the witness is unavailable to give evidence. This constitutes an exception to the hearsay rule because the circumstances in which the statement was made address the concerns underlying the hearsay rule, the statement was made under oath and the
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party against whom the statement was made had an opportunity to cross-examine the witness. The requirement of unavailability is met if the witness is dead, is too ill to attend court, has been prevented from attending by the party against whom the evidence is to be admitted, is outside of the jurisdiction or cannot be located following intensive enquires. Privileged information
Under Section 130 of Evidence Act No person shall be compelled to disclose any communication made to him or her during marriage, by the
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other spouse; nor shall a person be permitted to disclose such communication communication without the t he consent of the person who made it.
Under section 132 No public officer shall be compelled to disclose communications made by any person to him in the course of his duty, when he considers that the public interest interest would suffer by the disclosure.
Under section 134 No advocate shall at any time be permitted unless with
his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice
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given by him to his client in the course and for the purpose of such employment: NOTE Advocate-client privilege does not extend to
any communication made in furtherance of any illegal purpose Any fact observed by any advocate in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether the attention of such advocate was or was not directed to the fact by or on behalf of his client.
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The privilege continues after the employment of the advocate has ceased. The privilege extends to interpreters, and the clerks or servants of advocates.
Cross -examination Cross-examination has been described as the most effective method for
testing a witness‘s evidence.33O n his part W igmore wrote: wrote:
33
See Zuckerman The Principles of Criminal Evidence (Oxford University Press 1989) at 93 .
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“Cross-examination is greatest legal engine ever invented for the 34
discovery of truth”
The right of the accused in a criminal trial to cross-examine witnesses is, today, an internationally recognised fundamental right. Our constitution specifically guarantees guarantees the right of the accused to challenge evidence.
Purpose of cross-examination
34
Wigmore Evidence in Trials at Common Law (3rd ed Little Brown & Co., 1974).
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to test his accuracy, veracity or credibility of the witness. to discover who the witness is and what is his position in life;
to shake the witness’s credit, by injuring his character. However, a person asking character questions must have reasonable grounds for thinking that the imputation which it conveys is well founded.
By revealing inconsistencies and highlighting errors cross-examination, could assist in identifying dishonest witnesses. Nonetheless, one should note that the witness may be an honest one and is making inaccurate statements in response to suggestive leading questions, the stress of the courtroom scenario or for many other reasons.
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NOTE The court will forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form. (Sec 160 EA)
Evidence of bad character In criminal proceedings the fact that the accused person has committed or been convicted of or charged with any offence other than that with which he is then charged, or is of bad character, is inadmissible unless:
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such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant relevant to a fact in issue; or or
the proof that he has committed or been convicted of such other offence is admissible under section 14 or section 15 of this Act to show that he is guilty of the offence with which he is then charged; or
he has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own character, or has given evidence of his own good character; character; or
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the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution; or
he has given evidence against any other person charged with the same offence:
NOTE Evidence of previous conviction for an offence may be given in a criminal trial after conviction of the accused person, for the purpose of affecting the sentence to be awarded by the court
Leading question
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A leading question is any question which suggests the answer which the person putting it wishes or expects to receive, or suggests a disputed fact as to which the witness is to testify. Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court. Under Section 151 of Evidence Act Leading questions may be asked in cross-examination.
Role of Advocates in criminal matters
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The facts of a case exist in jumbled pieces: in the memories of witnesses, buried in documents and reflected in physical exhibits.
The legal practitioner must make sense of these pieces of facts by conceptualizing the theme of the case, determining determining what facts will form evidence in court, plan the presentation and effectively
communicate the client’s story. The Advocate and the Prosecutor are central figures to the trial, they each have to communicate their side of the story to the Court for determination.
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References Ashworth Principles of the Criminal Law 5th ed (Oxford University Press, 2006) Choo The Notion of Relevance and Defence Evidence‘ [1993] Crim LR 114. Choo Hearsay and Confrontation in Criminal Trials (Clarendon Press Oxford, 1996)
Coss “The Defence of Provocation: An Acrimonious Divorce from Reality” (2006- 2007) 18 Current Issues in Criminal Justice 51, at 52 Duff ―The Demise of Kearley – A Hearsay Problem Solved? ‖ (2005) International Commentary on Evidence (2) 1. (1988) Current Legal Problems 33. Guest ―Hearsay Revisited ‖ ‖ (1988)
Herring Criminal Law (Palgrave Macmillan Law Masters 2005) at 3 Horder Provocation and Responsibility (Clarendon Press 1992). Keane The Modern Law of Evidence (5th ed., Butterworths, 2000). Langbein ,The Criminal Trial before the Lawyers ‖ (1978) 45 U. Chi. L. Rev . 263, 302.
Lantham “Killing the Fleeing Offender” [1977] 1 Crim LJ 16 at 17 18. McAuley & McCutcheon Criminal Liability (Roundhall Sweet & Maxwell, 2000).
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McEwan Evidence and the Adversarial Process - The Modern Law (1998) 36-37 . Morgan, Hearsay Dangers and the Application of the Hearsay Concept‖ (1948) 62 Harvard Law Review . 177, O’Malley, Sentencing Law and Practice 2nd ed (Round Hall Sweet & Maxwell, 2006) Osbourne ‗Hearsay and the European Court of Human Rights‘ (1993) Crim LR 255, at 259. Paul Roberts, "Double Jeopardy Law Reform: A Criminal Justice Commentary" (2002) 65 MLR 393 at 397-405.
Power “Provocation and Culture” (2006) Criminal Law Review 871, at 877 Reed “Evidentiary Failures: A Structural Theory of Evidence Applied to Hearsay Issues ” (1994) 18 American American Journal of Trial Advocacy Advocacy
353, at 371.
Robinson “Criminal Law Defenses: A Systematic Analysis” (1982) Columbia Law Rev, Vol.82 (2):199 -291 at 203. Tapper Cross and Tapper on Evidence (8th ed Butterworths, 1995), at 566.
“The Presumption Presumption of Innocence in English Criminal Law” [199 6] Crim LR 306, 309 Turner Kenny’s Outlines of Criminal Law (Cambridge University Press, 19th ed, 1966) at 499.
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Wigmore ―The History of the Hearsay Rule ‖ (1904) 17 Harvard Law Review 437, 440. Williams The Proof of Guilt: A Study of the English Criminal Trial (3rd ed 1963) at 207. Zuckerman, Relevance in Legal Proceedings‘ in Twining (ed) Facts in Law (1993).
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To the Law Student Stude nt “In your revision you do not need to re -read your textbooks extensively.
Re-reading should be kept to a minimum. This is why a set of well-kept notes is so useful: instead of having to cover hundreds of pages of text you should have an outline…” How to Study, Harry Maddox.
The Quick Law Series is precisely designed to make your revision fun and most importantly effective. It presents the essentials of law in clear, simple language. In addition, even though the booklet is an indispensable revision companion, it is best used as a guide or a catapult to further research. A caveat is in order, under no circumstances should the booklet be a replacement replacement for through reading reading of the primary materi m aterials. als.
To the general Citizen This booklet will go a long way towards educating you on the
‘mysterious process’ that the lawyers call criminal litigation. You will be well advised to invest on it. However, a note of warning is in order, the booklet is not designed to replace the services of the advocate. advocate.
There are many intricacies in law, which only a ‘learned friend’ can safely negotiate. negotiate. Think of this booklet as a roadmap, it can give you the general general direction to your destination, but it will not make you an expert driver.
Charles Mwaura Kamau LLB (Hons)(UK), LLM (Law and Corporate Corporate Governance) (UK), Dip.KSL, Advocate of the High Court of Kenya and Lecturer of Law based in the UK.
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