The present scenario involves a number of substantive and procedural considerations. These are organised into groupings of identification evidence, alibi, the applicability of special measures, witness competence and compellability, and considerations of burden of proof. The scenario also lends itself to a discussion of trial tactics. Tactical considerations for both the prosecution and the defence will dictate the outcome of a number of the evidentiary and procedural issues highlighted here. The following analysis regarding the quality of Wendy’s eye witness description and subsequent video identification assumes that the police complied with all of the necessary provisions of the Police and Criminal Evidence Acd in the securing of the identification evidence (including any identification parade). The discrepancies between Wendy’s initial description and the video identification of Mark as the perpetrator go to weight and not the admissibility of this evidence.
The circumstances of the identification, involving Wendy’s participation in the frightening events in which she made her initial observation warrant an appropriate jury direction. The evidence of Timmy is corroborative of Wendy’s position concerning the unfolding of the occurrence, the number of participants, and the perpetrator‘s skin colour. This evidence also requires weight considerations due to the limitations of this witness. The eyewitness evidence is generally subject to a Turnbull styled direction regarding its potential frailties. The direction must deal with the circumstances in which the identification was made and any weaknesses in the identification. The direction must identify the evidence that the trial judge determines as capable of supporting the identification; the judge should give a general warning, even in cases of recognition, of the dangers in convicting on identification evidence. The extent (and potential forcefulness) of the jury warning must also be considered in light of the evidence of Sonya and Nigel as noted below. As in Keane, there is no formula or catechism for the Turnbull warning.
However, while a failure to observe the Turnbull guidelines here might not automatically serve to quash a conviction, such a result is very likely. It must be also noted that a prima facie case of murder and aggravated burglary might be established by the prosecution as against Mark on the evidence of Wendy and Timmy alone. The evidence of Sonya regarding Mark is potentially powerful corroborative ‘consciousness of guilt’ evidence; without an explanation from Mark (he is not legally obligated to provide one), the burning of clothing coupled with the eyewitness evidence, even with its uncertainties, would be compelling. Sonja’ witness status is discussed below. The scenario provides that Mark’s defence will be one of alibi. If the evidence of Wendy is presented in a poor or uncertain fashion, given that Timmy cannot positively identify the perpetrators and entirely corroborate Wendy’ evidence, Mark may decide that he shall not testify and expose himself to cross examination. His alibi is very weak, given that the corroborating prostitute is not available. Conversely, there is no evidence to suggest that the alibi is fabricated so as to be tendered as part of the prosecution case in chief. Assuming that Mark testifies as to his alibi, the credibility of the tendered alibi is not fundamental to the determination of Mark’s guilt or innocence on the substantive charges. This circumstance would necessarily attract a Lucas warning to the jury, that ‘…Even if you conclude that the alibi was false that does not itself entitle you to convict the defendant. The Crown must still make you sure of his guilt. An alibi is sometimes invented to bolster a genuine defence.’ …the fact that the defendant has told lies… does not in itself indicate guilt.
The jury should be invited to consider other explanations why the defendant might have lied, including any he proffers himself during the trial.’ Nigel is jointly charged with Mark and therefore his ability to testify against Mark is rooted in distinct and alternative procedural considerations. As a co-defendant, Nigel is not a compellable witness against Mark. Nigel has an unfettered right to testify in his own defence. Nigel would be exposed to cross – examination from both the prosecution and Mark at large regarding his involvement in the entire transaction. The ability of the prosecution to prosecute Mark in a separate proceeding, with Nigel called as a prosecution witness involves tactical issues that extend beyond the scope of the present scenario, including possible plea bargains and a consideration of the accomplice rules. The purported defence of duress, like alibi, is difficult but not impossible to maintain without corroboration. It would attract what some academic commentators refer to as a ‘tactical’, not legal burden of proof. There is no evidentiary prohibition against its tender without corroboration; the practical considerations of standard of proof are referenced below. There is insufficient information contained in the scenario to determine the likelihood of a duress defence being successfully advanced by Nigel, save for the difference in the ages of each defendant. Nigel’s evidence carries a potential three pronged effect – it potentially rebuts the defence of alibi tendered by Mark; subject to its factual basis, it may confirm Mark’s role as the sole actor in the crime; it may be a complete defence to both murder and aggravated burglary, or alternatively (subject to the particulars) it may establish a reduced level of participation and corresponding culpability on Nigel’s part. All of these issues are for the jury, once properly instructed. The nature of the trial would involve consideration of the Special Measures provisions of the Criminal Procedure Rules. Timmy would be subject to the implementation of such procedures as of right given his age of 12 years. Specific rule The availability of a designated special measure for Sonja is dependant upon the related stress, the reluctance to testify and fear attributed to Mark. The scenario as stated does not provide a factual basis as to why Sonja fears Mark or what unusual stresses are caused by the proceeding (all witnesses likely sustain a measure of stress by participating in a criminal trial; few witnesses are provided with the special measures provisions). The prosecution must apply for the special measures or the court may direct same of its own motion.
The court has a clear power to vary a special measure once same has been directed. The allowance of the special measure is a flexible remedy, one that must be balanced against the traditional rule of law that a defendant be permitted to face his accuser; the personal comfort or convenience of a witness is not a basis for the order. This aspect of the process has been explained as ‘We wish to emphasise that judges may keep a Special Measures Direction under review. A Special Measures Direction is intended to give confidence to the witnesses and part of that confidence derives from the assurance that the matter will be handled as the direction has stipulated. However, that must not prevent a judge, who feels that a variation to the direction will help the trial proceed properly, from making such a variation…’ It is clear that given the serious nature of the present offences, coupled with the overriding imperatives to ensure that the defence is permitted the opportunity to make full answer and defence, the special measures must be supported by facts beyond mere ‘stress’, when objectively considered. The court must be satisfied that the quality of the evidence tendered would be diminished if no measures were taken. There is no case law on this point, but it is rationale to conclude that a reasonable juror will invariably wonder ‘why’ an adult witness is testifying via video link or other special measures means. If Nigel testifies in his own defence, he shall not be permitted the benefit of any special measures. The burden of proof with respect to the offences alleged in the scenario remains with the prosecution throughout the proceeding; it does not legally shift to the defence based upon the defences tendered. If Mark testifies to an alibi, should the alibi raise a reasonable doubt as to his guilt, without having been proven to any standard, Mark must be acquitted. Similarly, if Nigel testifies that he acted under duress, the defence need not be proven to be effective in his defence; it must raise a reasonable doubt.
Although the facts presented are silent on the point, should Nigel allege that his duress was in the nature of resulting in a diminished responsibility for the crimes alleged, so as to reduce his level of culpability; such defences carry an implicit requirement for medical or expert evidence to corroborate the defence contention. Based on the information provided, all of the prospective witnesses named are competent to testify at trial. All of the witnesses are adults, save for Timmy. There is nothing on the facts to suggest that Timmy would be unable to understand the nature of the proceedings or otherwise not understand the questions he might be asked. The compellability of the witnesses is subject to other considerations. Sonja’s compellability will turn on how permanent or irreconcilable her marital difference may be with Mark regarding her ‘recent’ estrangement. The statute may also provide an avenue to compel Sonja to testify if the court were persuaded that the offences naturally resulted in Timmy as a child victim of the aggravated burglary.As noted above, Nigel is not a compellable witness so long as he remains a co-defendant. The distinction between the burden of proof and the standard of proof is plain in the scenario. The prosecution bears the burden of proving both charges to a beyond a reasonable doubt standard. As noted above, the scenario raises a clear common sense consideration – if the prosecution case was tendered at its highest, the facts would demand an explanation from the defence or a finding of guilt would be inevitable.
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