Criminal Litigation SAQ Mock 2

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billsykes
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210258
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Criminal Litigation SAQ Mock 2
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2013-03-30 20:36:51
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Criminal Litigation
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Criminal Litigation
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  1. Richard Smith (aged 29) and his girlfriend Jane Blair (aged 17) are jointly charged with theft of food items from a supermarket. Smith, who has a number of previous convictions for dishonesty, denies the charge and intends to elect trial on indictment. Blair, who is of good character, also denies the charge and wishes to plead not guilty.

    (a) Explain, with reasons, how it will be decided whether the joint trial of Richard and Jane will take place in the Crown Court, the Adult Magistrates’ Court, or the Youth Court and what considerations should apply as to why it should be at that Court?
    Expect joint trial in the Crown Court (1 mark).

    A joint trial could only take place in the (adult) Magistrates’ Court if in the first place the decision was made to try Smith there.  Here however Smith intends to elect trial on indictment (1 mark).

    Since this is a joint charge, the Magistrates must decide whether it is necessary, in the interests of justice, for Blair to accompany Smith to the Crown Court  (1 mark).

    If they so decide, both Defendants will face committal to the Crown Court for trial (1mark).

    There should never be a trial involving an adult in the Youth Court (1 mark).
  2. Richard Smith (aged 29) and his girlfriend Jane Blair (aged 17) are jointly charged with theft of food items from a supermarket. Smith, who has a number of previous convictions for dishonesty, denies the charge and intends to elect trial on indictment. Blair, who is of good character, also denies the charge and wishes to plead not guilty.

    (b) Has Blair the right to elect trial on indictment in the Crown Court?
    No. A juvenile does not have the right to elect trial on indictment (1mark).
  3. Richard Smith (aged 29) and his girlfriend Jane Blair (aged 17) are jointly charged with theft of food items from a supermarket. Smith, who has a number of previous convictions for dishonesty, denies the charge and intends to elect trial on indictment. Blair, who is of good character, also denies the charge and wishes to plead not guilty.

    (c) If Blair is tried and found guilty in the Crown Court, in which Court is she most likely to be sentenced and give reasons for your answer.
    The sentencing options available in the case of juveniles are generally available to the Crown Court.  S.8P.C.C.S.A. 2000 provides that the Crown Court must remit a juvenile to the Youth Court to be sentenced unless satisfied that it would be undesirable to do so (1 mark). 

    However the Crown Court would be justified in not remitting a juvenile to the Youth Court for sentence where the Trial Judge would be better informed of the case, having heard the evidence, than the Youth Court could hope to be (1 mark). 

    If both are convicted in the Crown Court, separate sentences in separate Courts might also entail an unacceptable risk of disparity of treatment (1 mark).

    The Court in which Blair is likely to be sentenced is therefore the Crown Court (1 mark).
  4. Barry Dawson is charged with s.20 G.B.H. He denies the charge. At the close of the Prosecution case in the jury trial of the matter, his Defence Counsel takes the view that the Prosecution’s case is fatally flawed.

    (a) What submission would you expect Defence Counsel to consider making in these circumstances?
    A submission of no case to answer (1mark).
  5. Barry Dawson is charged with s.20 G.B.H. He denies the charge. At the close of the Prosecution case in the jury trial of the matter, his Defence Counsel takes the view that the Prosecution’s case is fatally flawed.

    (b) If Defence Counsel wishes to make such a submission, how should the matter be
    raised?
    Submit to the Judge that a matter of law has arisen (1 mark)

    and invite him or her to send the jury out (1 mark).
  6. Barry Dawson is charged with s.20 G.B.H. He denies the charge. At the close of the Prosecution case in the jury trial of the matter, his Defence Counsel takes the view that the Prosecution’s case is fatally flawed.

    (c) What test should the Court have in mind in hearing the submission of NCTA?
    The test to be applied is set out in the case of Galbraith (1 mark). 

    The Judge is under a duty to stop the case (1 mark) where the Prosecution evidence, taken at its highest (1 mark), is such that a jury, properly directed (1 mark), could not properly conviction it (1 mark). 

    Maximum of 3 marks.
  7. Barry Dawson is charged with s.20 G.B.H. He denies the charge. At the close of the Prosecution case in the jury trial of the matter, his Defence Counsel takes the view that the Prosecution’s case is fatally flawed.

    (d)  If the submission of NCTA is made and upheld, what steps should the Judge take at its conclusion?
    Direct the jury to return a verdict of not guilty (1 mark) and, upon the return of that verdict, discharge the Defendant (1 mark).

    Maximum of 1mark.
  8. Barry Dawson is charged with s.20 G.B.H. He denies the charge. At the close of the Prosecution case in the jury trial of the matter, his Defence Counsel takes the view that the Prosecution’s case is fatally flawed.

    (e)  Assume that the fatal flaw is something that the Prosecution could easily correct. Explain whether the Defence should have alerted the Prosecution to the flaw earlier in the case and, if the Defence do not do so, the likely outcome of a submission based on that flaw.
    The Defence should have alerted the Prosecution to the problem (see, for example, R v Penner [2010] EWCA Crim 1155): 1 mark. 

    Failure to do so may mean that the Prosecution are allowed to re-open their case to make good the deficiency in their case (1 mark).

    It is likely that an adjournment will be granted to enable them to do so (1 mark).
  9. Harry and Zain are jointly charged with Robbery. They both entered not guilty pleas at the plea and case management hearing and the matter is due for trial in June. You are instructed to represent Zain (aged 19) who has a reprimand for criminal damage dating back to 2004 and a conviction for driving without insurance committed in 2009 for which he was fined £100. Harry (aged 21) has several previous convictions including two previous convictions for theft, one for common assault and one for robbery. At interview Zain stated that Harry was responsible for the robbery. He denied any involvement. Harry accepted presence at the scene but denied participation. Harry said that Zain carried out the robbery.

    (a) Explain, with reasons, how the Judge might choose to direct the jury as to Zain’s character? [4 marks]
    Zain’s previous convictions appear to be irrelevant and insignificant in relation to the offence charged (1 mark).

    In this situation a good character direction is usually given, though the matter is one for the discretion of the Judge (1mark).

    The jury must not be misled by any claim made by the accused (1 mark).

    The direction may be given in whole or in part and this is a matter for the Judge’s discretion (1 mark).
  10. Harry and Zain are jointly charged with Robbery. They both entered not guilty pleas at the plea and case management hearing and the matter is due for trial in June. You are instructed to represent Zain (aged 19) who has a reprimand for criminal damage dating back to 2004 and a conviction for driving without insurance committed in 2009 for which he was fined £100. Harry (aged 21) has several previous convictions including two previous convictions for theft, one for common assault and one for robbery. At interview Zain stated that Harry was responsible for the robbery. He denied any involvement. Harry accepted presence at the scene but denied participation. Harry said that Zain carried out the robbery.

    (b)  Are Zain’s chances of being treated as a man of effective good character affected by the fact that Harry is a man of bad character? Give reasons for your answer. (1 mark)

    (c)  How can you apply to adduce evidence of Harry’s previous convictions at trial and
    what is the purpose of doing so? [2 marks]
    (b) No. A co-accused of good character or of effective good character is entitled to the same direction as if he stood trial alone (1 mark).

    • (c) Yes. An application could be made to adduce Harry’s previous convictions
    • pursuant to s.101 (1)(e) CJA 2003 if it has substantial probative value in relation to an important matter in issue between a Defendant and a co-Defendant (1 mark).

    His convictions could be relied upon to show evidence of propensity and to a propensity to be untruthful because Harry’s defence undermines that of his co-accused (1 mark).
  11. Harry and Zain are jointly charged with Robbery. They both entered not guilty pleas at the plea and case management hearing and the matter is due for trial in June. You are instructed to represent Zain (aged 19) who has a reprimand for criminal damage dating back to 2004 and a conviction for driving without insurance committed in 2009 for which he was fined £100. Harry (aged 21) has several previous convictions including two previous convictions for theft, one for common assault and one for robbery. At interview Zain stated that Harry was responsible for the robbery. He denied any involvement. Harry accepted presence at the scene but denied participation. Harry said that Zain carried out the robbery.

    (d) The Prosecutor has disclosed that the complainant has a previous conviction for fraud by false representation dating back to 2008 for which she received acommunity order with an unpaid work requirement of 140 hours. You would like touse this against her at trial if possible. On what basis, and for what purpose, mayevidence of Harry’s previous convictions be admitted?
    An application could be made under s. 100(1) (b) to adduce evidence of the complainant’s previous conviction (1 mark).

    The application will be successful if the conviction has substantial probative value in relation to a matter which is in issue in the proceedings, and is of substantial importance in the context of the case as a whole (1 mark).

    Credibility can be an important matter in issue (1mark).
  12. Felix faces trial on a single count of bigamy. The Prosecution case is that while being married to Ella, on 2 July 2011 he went through a ceremony of marriage with Sally.

    As Counsel for the Prosecution, on what basis, if any, might you seek to put the following in evidence, other than on the grounds of agreement or admission in the interests of justice?

    (a) A statement made to the police by Rev. Flannel that he conducted a ceremony of marriage between Felix and Sally on 2 July 2011. Rev. Flannel has, since making this statement, died.
    This is hearsay - not oral evidence in proceedings - CJA 2003 S114(1) [the same point arises in parts (b) & (c) - the point need only be made once, as long as the answer is clear on the hearsay nature of the evidence] 

    Admissible under s. 116(2)(a)- witness dead 

    1 mark for hearsay

    1 mark for exception
  13. Felix faces trial on a single count of bigamy. The Prosecution case is  that while being married to Ella, on 2 July 2011 he went through a  ceremony of marriage with Sally.

    As Counsel for the Prosecution, on what basis, if any, might you seek to put the following in evidence, other than on the grounds of agreement or admission in the interests of justice?

    (b) An entry in a book recording marriage ceremonies maintained by the Any town United Reform Church to the effect that a marriage took place between Felix and Ella on 1 March 2008. The book was compiled by the church secretary on the basis of information supplied by Ministers conducting marriage ceremonies.
    Hearsay. Exceptions. 117(1)&(2) - “business” record - supplier (minister) may be supposed to have had personal knowledge - compiler acting under “duty” Not prepared in contemplation of crim. lit. - so p.f. admissible as of right. 

    1 mark for hearsay

    2 marks for admissibility
  14. Felix faces trial on a single count of bigamy. The Prosecution case is  that while being married to Ella, on 2 July 2011 he went through a  ceremony of marriage with Sally.

    As Counsel for the Prosecution, on what basis, if any, might you seek to put the following in evidence, other than on the grounds of agreement or admission in the interests of justice?

    (c) Evidence that as Felix and Sally emerged from the church following the alleged ceremony of marriage an unknown person in a crowd which had gathered outside shouted, “Felix, you’re already married to Ella and now you’re hitched to Sally”.
    Hearsay S 118 - res gestae - preserved common law exception

    Probably fails the tests in R v Andrews (as in R v Teper, there appears to be the opportunity for concoction) 

    1 mark for hearsay

    2 marks for res gestae
  15. Felix faces trial on a single count of bigamy. The Prosecution case is  that while being married to Ella, on 2 July 2011 he went through a  ceremony of marriage with Sally.

    As Counsel for the Prosecution, on what basis, if any, might you seek to put the following in evidence, other than on the grounds of agreement or admission in the interests of justice?

    (d) Evidence that while being questioned under caution before charge, Felix admits that he did get married, but said that it was a genuine marriage and that he was a devout Christian who believed in the sanctity of marriage. (2 marks)
    What Felix says in interview would be admitted as part of the Crown’s case, the transcript of the interview having been agreed between the prosecution and the defence.

    1 mark for editing transcript

    1 mark for agreement for prosecution and defence agreeing transcript

    1 mark for admissible as confession

    1 mark as it is partly inculpatory, partly exulpatory
  16. Tracy has been charged with dwelling house burglary. It is alleged that she entered a house through an insecure back door and stole a purse that had been left by the owner of the house, Sam. As Tracy was walking away from the house, Sam, who was in one of the upstairs bedrooms, looked out of the window and saw her and asked her what she was doing. Tracy turned around and briefly looked at Sam before running from the scene. Sam subsequently picked Tracy out in a video identification procedure. Over the previous seven years Tracy has been convicted of four dwelling-house burglaries, all involving her entering houses during the day and stealing small quantities of property. All four previous convictions were on separate Court dates. Tracy has denied the current offence maintaining that it is a case of mistaken identity and raising an alibi.

    a)  Briefly explain how the Judge should direct the jury concerning the issue of identification in this case.
    Candidates must identify Turnbull as the relevant authority, although the students are not expected to give the full reference. The students can list the factors that should be dealt with in a Turnbull direction. The marker can give (1 mark) for each factor up to a maximum of (5 marks).

    The students do not, therefore, have to write about all of the points set out below. The marker should be satisfied, however, that the student has given the main factors for a Turnbull direction before giving full marks.

    • Special need for caution in ID cases –
    • previous mistakes in cases in the past.

    Mistaken witness can also be a convincing one.

    Jury must examine carefully the circumstances of the ID i.e. lighting, distance, length under observation etc.

    Any discrepancies in description.

    Recognition may be more reliable than stranger ID, but may still be mistaken.

    Judge should identify any supporting evidence and also any evidence which appears supporting but in fact is not.

    Alibi – even if false does not mean Defendant has been correctly identified. False alibis can be given to bolster an honest defence.
  17. Tracy has been charged with dwelling house burglary. It is alleged that she entered a house through an insecure back door and stole a purse that had been left by the owner of the house, Sam. As Tracy was walking away from the house, Sam, who was in one of the upstairs bedrooms, looked out of the window and saw her and asked her what she was doing. Tracy turned around and briefly looked at Sam before running from the scene. Sam subsequently picked Tracy out in a video identification procedure. Over the previous seven years Tracy has been convicted of four dwelling-house burglaries, all involving her entering houses during the day and stealing small quantities of property. All four previous convictions were on separate Court dates. Tracy has denied the current offence maintaining that it is a case of mistaken identity and raising an alibi.

    (b)  In view of Tracy’s previous convictions what is the statutory minimum sentence in this case?
    The students should state that the statutory minimum sentence is three years – s111 PCC(s) A 2000.

    1 mark for saying the minimum sentence is operative where the offender has two previous convictions, on separate occasions, for domestic burglary (1 mark);

    that the minimum is 3 years (1 mark)
  18. Tracy has been charged with dwelling house burglary. It is alleged that she entered a house through an insecure back door and stole a purse that had been left by the owner of the house, Sam. As Tracy was walking away from the house, Sam, who was in one of the upstairs bedrooms, looked out of the window and saw her and asked her what she was doing. Tracy turned around and briefly looked at Sam before running from the scene. Sam subsequently picked Tracy out in a video identification procedure. Over the previous seven years Tracy has been convicted of four dwelling-house burglaries, all involving her entering houses during the day and stealing small quantities of property. All four previous convictions were on separate Court dates. Tracy has denied the current offence maintaining that it is a case of mistaken identity and raising an alibi.

    (c) Does the Court have any discretion about imposing the statutory minimum sentence? Give reasons for your answer.
    Yes, the Court does have a discretion to impose less than the statutory minimum sentence (1mark);

    this discretion applies where particular circumstances which relate to any of the offences or to the offender (1mark) would make it unjust to do so in all the circumstances (1 mark).

    The Judge must identify the circumstances and state them in open Court (1mark).

    If the guilty plea discount point is raised here rather than in answer to part (b) it should earn a mark under part (c).

    Maximum 3 marks.

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