Criminal Procedures / Trials

Trials

Trial proceedings are governed by s 230 of the Criminal Procedure Code. They begin by the court officer reading to the accused the charges that he faces. The court would then ask him for his position on the charges.

After the accused informs the court that he pleads “not guilty” to the charges (i.e. he wishes to claim trial), the Prosecution would then seek to prove the elements of the charges beyond a reasonable doubt. They do so by calling witnesses. In relation to Prosecution witnesses, the Prosecution would begin by examining that witness (i.e. asking the witness questions) in a process known as “Evidence-in-Chief”. The Defence would then be given an opportunity to cross-examine that witness, before the Prosecution is given an opportunity to re-examine the witness, but only in relation to points raised by the Defence during cross-examination. Relevant documents would also be adduced through those witnesses.

The Prosecution continues this process of calling witnesses until they conclude their case. At that point, the Defence may make a “no case to answer” submission – in that the Defence may invite the court to dismiss the case against the accused on the basis that there is insufficient evidence to establish the charges against the accused. The threshold that the Prosecution has to meet at this stage is relatively low. The Prosecution need only adduce sufficient evidence that is not inherently incredible, and would satisfy every element of the offence if the evidence was accepted by the court.

If the Prosecution’s case meets this threshold, the court would then have to call upon the Defence to present its case.

At the beginning of the Defence’s case, the court would inform the accused that it was the accused’s choice on whether he wished to testify on his own behalf. If the accused elected to give evidence, he would have to do so from the witness stand, and be subject to cross-examination by the Prosecution. Alternatively, the accused could elect not to testify in his defence. However, the court may draw any inference as appear to be proper from the accused’s refusal to give evidence, including inferences that are against him. Regardless, the accused would still be able to call upon other witnesses to give evidence in his defence.

The process for the Defence’s case is similar to that for the Prosecution, save that the Defence would conduct its Examination in Chief first, followed by the Prosecution’s cross-examination of the witness, and thereafter by the Defence’s re-examination.

Ancillary Hearings

While the issues that may arise during a trial depends on the nature of the offence and the nature of the evidence adduced, one common issue that arises during trials is the admissibility of an accused person’s statements.

The Prosecution is entitled to use an accused’s statements to prove the elements of the offence. However, these statements are only admissible if the accused had given those statements voluntarily. Therefore, when the Prosecution seeks to tender an accused’s statements as evidence, the Court would then ask the accused whether he was consenting to its admissibility. If the accused asserts that the statement was recorded involuntarily (i.e. it was recorded under a threat, inducement, promise or oppression by the recording officer), the court would have to convene was is known as an “ancillary hearing” or a “trial within a trial” to determine if the accused’s statement was admissible.

The process for the ancillary hearing is governed by s 279 of the Criminal Code, and is similar to that of a trial itself. The Prosecution would call upon the relevant witnesses involved in the recording of that statement to prove that the statements were recorded under proper circumstances. These witnesses would then be cross-examined by the Defence, before being re-examined by the Prosecution. The Defence may also call upon witnesses to prove that the statement was recorded involuntarily. The court would then have to make a finding of whether the statements were admissible before continuing with the main trial.[1]

After the Defence closes its case (i.e. the Defence has called upon all of its witnesses), the Prosecution may decide whether they wish to call upon rebuttal evidence. They may do so if a fact raised by the Defence caught them by surprise (in that they would not have been able to anticipate the raising of this fact prior to concluding their case), or if it is a defence of which the burden falls on the accused to prove (such as rebutting a presumption).

After all the evidence has been heard, the court would usually then adjourn the matter to deliberate and assess the totality of the evidence adduced at trial. The court would then render its verdict on whether the Prosecution has proven its charges beyond a reasonable doubt, convicting the accused if it finds that the Prosecution has successfully done so. Otherwise, the court would acquit the accused of the charges.

If the accused is convicted of the charges, the court would then proceed to sentence the accused. The Prosecution would state its position on sentence, and the basis for it. The Defence would do the same. The Court would then decide on the appropriate sentence, and impose it on the accused.

If either party is dissatisfied with the conviction/acquittal, or the sentence imposed, as the case may be, they may appeal against the judge’s decision by filing a Notice of Appeal.

[1] S 279(3)(k) of the Criminal Procedure Code.