Professional Documents
Culture Documents
Both
Tribunal of law
Tribunal of fact
Gun Court
2) Sstatute may indicate that a common law offence may be tried either way- Some driving offences see: Road Traffic Act
3) In Jamaica the Prosecution elects the mode of trial
b. By Category of Offence
i. Treason
ii. Felonies
1) A category of crimes, ranking in seriousness, below treason and above misdemeanour, i.e., all offences at common law or by statute, which are
neither treasons nor misdemeanours. Sometimes the felonious status of the offence may be determined by reviewing the definition in the
statute or by assessing the severity of the penalty
2) The rule in Smith v. Selwyn: an action for damages based upon a felonious act on the part of the defendant, committed against the plaintiff, is
not maintainable so long as the defendant has not been prosecuted or a reasonable excuse shown for his not having been prosecuted. The proper
course for a court to adopt in such a case is to stay further proceedings in the action until the defendant has been prosecuted. NB: This is no
longer an absolute rule. The court is now required to balance justice between all the parties and consider all the circumstances.
iii. Misdemeanours
1) Differences between Felonies and Misendeamours
a) During trials for felonies the accused must be present throughout the proceedings unless their presence retards proceeding or the accused
is voluntarily absent e.g. absconding; while for trials on misdemeanours the accuseds presence is strongly promoted but not required.
b) The rules as to parties are different. While felonies may involve principals in the 1st, 2nd degree etc., an accessory before and after the fact,
in the case of a misdemeanour, there are no accessories or parties called principals. However aiding & abetting is now extended to
misdemeanours i.e. accessory before the fact.
iv. Arrestable or Non-Arrestable
1) Some jurisdictions have reclassified felonies and misdemeanours into arrestable and non-arrestable offences
2) Arrestable offence is one where penalty is imprisonment for at least 5 years or a fixed ( mandatory) term of imprisonment (See for e.g. Bdos
CL(AO)A, 17/92 and Tdad & Tgo CLA, Chap 10:04)
3) In these territories a private citizen may arrest without warrant anyone whom he suspects is in the act of committing an arrestable offence or
has committed a particular arrestable offence. This in addition to his common law power to prevent a breach of peace.
4) With regards to police officers , in general , they have the power to arrest without warrant anyone who they suspect with reasonable cause is
about to commit an indictable or arrestable offence or whom they have suspected has committed such an offence.
5) Generally only police officers have powers of arrest without warrant for summary offences. An officer may usually arrest any person whom he
finds in the Act of committing a summary offence. See S15 Constabulary Force Act .
6) Powers of Arrest
a) Without warrant are wider in respect of felonies than misdemeanours. Based on principles in the case of R v. Owen Sampson, a constable
has power at common law, to arrest without warrant on reasonable suspicion of a felony having been committed; but he has no power to
arrest for a misdemeanour, unless a breach of the peace has been committed in his presence or there is reasonable ground for supposing
that a breach of the peace is about to be committed or renewed in his
V. Burden of Proof
a. The expression seems self explanatory as it is the obligation to prove or the onus of proof. There are two principal kinds of burdens:
i. BOP or Legal Burden
1) may be defined as the obligation imposed on a party by a rule of law to prove a fact n issue or the legal obligation imposed on a party to satisfy
the factfinder, to a specified standard of proof that certain facts, that is, the facts in issue, are true.
a) The facts in issue are determined by reference to the substantive law, in criminal law often by reference to the elements of the offence.
2) Standard of Proof depends upon whether the proceedings are criminal or civil
a) Criminal Beyond a Reasonable Doubt
b) Civil On a Balance of Probabilities
NB. If one fails to discharge their legal burden to the required standard they will lose on the question in issue.
The classic example of a legal burden is the rule that in a criminal case the prosecution bear the burden of proving the elements of the
offence charged, to the standard of beyond a reasonable doubt. If the prosecution fails to persuade the persuade the factfinder to this
standard of one or more elements of the offence charged, then the prosecution will not have discharged their legal burden and the fact
finder must acquit on the charge.
Legal burdens are allocated by rules of law and do not shift during the course of the trial.
ii. Evidential Burden
1) This is the burden of adducing evidence. It is the obligation to adduce sufficient evidence to raise an issue for the court to consider. The
evidential burden is below that of the legal burden and the party who normally bears the legal burden of proving a particular issue also has
evidential burden.
2) The question of who has an evidential burden on a particular issue is determined like the legal burden by Substantive Rules.
3) It is important to note that that the party who has an evidential burden in relation to a particular issue need not have the legal burden. Example
an accused who wants to rely on a particular offence like provocation or self defence must either produce such evidence or point to some
evidence adduced by the prosecution which raises the defence- that is a reasonable doubt that he killed either under provocation or in self
defence.
4) Once this evidential burden has been discharged, the prosecutions legal burden comes into play.
5) Due to the presumption of innocence the legal burden of proof almost always rests on the Prosecutor however there are some exceptions:
a) Common Law Exception Defence of Insanity see Woolmington v DPP(1935) AC 462
b) Express Statutory Exceptions that is where the statute expressly places the legal burden on the accused (e.g.it shall be for the defendant
to prove ....)
See s22(7) Dangerous Drugs Act , Unlawful Possession of Property of Act:
S22(7) A person, other than a person lawfully authorized, found in possession of more than(a) one-tenth of an ounce of diacetyl-morphine
(heroin);
(b) one-tenth of an ounce of cocaine;
(c) one-tenth of an ounce of morphine;
(d) one ounce of opium; or
(e) eight ounces of ganja,
is deemed to have such drug for the purpose of selling or otherwise dealing therein
unless the contrary is proved by him.
c) Implied Statutory Exceptions - where on interpreting the statute, it implies that the burden is on the accused. By how the section is
constructed one can infer that the burden rests with the defence, that is, that the statute has placed the burden on the defence by
necessary implication.
This is generally in the case where the statute is concerned with offences committed by a special class of persons, or withinspecified
qualifications or with the licence or permission of specified authorities. See s20 Firearms Act Illegal Possession of a firearm See also R v
Edwards ( 1975) QB 27 and R v Hunt (1987) AC 352
S20 A person shall not
(a) save as authorized by a licence which continues in force by virtue of any enactment, be in possession of a prohibited weapon;or
(b) subject to subsection (2), be in possession of another firearm or ammunition except under and in accordance with the terms and
conditions of a Firearm Users Licence.
This will usually be the case only in minor offences, where the defendant relies on some form of exemption, or permission to do
This will usually be the case only in minor offences, where the defendant relies on some form of exemption, or permission to do
something, such as licensing matters.
6) Where it is difficult for the defendant to provide evidence in his defence, or where the offence alleged is a serious one, the courts will generally
take the view that the burden is too onerous, and it will rest with the prosecution.
7) If a defendant does have the legal burden he will only have to discharge it on the balance of probabilities (the civil standard of proof.
VI. Cases:
a. DPP v. Sanchez-Burke
b. R v. Edwards(1975) QB27
c. R v. Harrington et al
d. R v. Hunt (1987) AC 352
i. Pg 649-650 of walker n walker
e. R v. K
f. R v. Owen Sampson
g. R v. Solomon
h. Woolmington v. DPP(1935) AC462
i. Pg 648 of walker n walker