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Trials in CFI

Joanna Ip Criminal procedure LLB English

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Trials in CFI

  1. Pre-trial hearings

    • Listing Judge: fix dates of trial
    • Pre-trial Revue
      • house-keeping meeting - i.e. changes, arguments, expert evidence, need for voir dire, particular points of law (authorities), etc
  2. 1. Arraignment

    • apply for discharge --> arraign D before the court
      • unfettered, not in prison clothes
    • 2. Plea
      • call D's case + name
        • Interpreter read out each count in indictment to D
          • D must personally plead "Guilty" or "Not guilty" to each count
            • No ambiguous/equivocal pleas
            • if doubt, enter "Not Guilty" plea
          • court must take steps to ensure D understands each charge
      • 3. Select jury
        • D plead not guilty + prosecution wishes to proceed
          • jury must be empanelled --> try the case
            • 7-9 members
            • juror must be ELIGIBLE
              • aged 21-65
              • RESIDENT of hk
              • sound MIND
              • no DISABILITY that prevents him from serving as juror
              • good CHARACTER
              • sufficient knowledge of LANGUAGE of trial
              • not EXEMPTED
                • applied for + has GOOD CAUSE for not attending
                • judges, magistrates, members of law enforcement agencies, barristers and solicitors, full-time students of universities
            • BALLOT --> select from pool of potential jurors
              • P/D both have unlimited challenges WITH CAUSE
              • D has 5 challenges WITHOUT CAUSE
            • take OATH or AFFIRMATION to "deliver a TRUE verdict + according to the EVIDENCE"
              • D is delivered into Jury's charge
        • 4. Prosecution give Opening Speech
          • inform jury - case's leading features
          • outline EVIDENCE to be called
            • avoid mentioning evidence that will be challenged
            • take judge through - elements, damage, etc
          • 5. Witnesses give testimony
            • A. PW takes OATH or AFFIRMATION to tell the truth
              • B. Examination in Chief
                • examination of witness by party that called him
                  • --> bring out witness' evidence through a series of questions
                    • no leading questions
                      • UNLESS it's a matter not in dispute + other side consents
                      • q contains answer OR q assumes facts not yet established
                    • open questions
                  • also, PW produce prosecution exhibits
                • C. Cross-examination
                  • by opposite party, optional
                    • can be on matters not raised in EIC
                    • obtain evidence from PW --> favorable for D
                    • challenge + undermine PW's evidence
                    • MUST put D's case to PW
                      • Browne v Dunne rule: D must make it clear to PW that evidence not accepted and in what aspects not accepted
                      • PW must be given opportunity to answer challenge --> jury assess PW's evidence
                    • lay foundation for D's evidence
                  • use leading questions, but open questions not advisable
                  • D. Re-examination of PW by P
                    • optional
                      • repair damage done in CE (confusion, inconsistencies, etc)
                      • respond to matters that arose in CE for the first time
                    • no leading qs
                    • matters addressed here MUST have arisen from CE
            • 6. Close of Prosecution's case
              • evidence NOT sufficient --> stop trial?
                • No case to answer
                  • judge is satisfied that no jury properly directed could convict D --> withdraw case from jury + direct jury to acquit
                    • D doesn't have to prove anything - just submit NCTA, in absence of jury
                      • judge should still consider this, even if D doesn't submit
                    • WHERE:
                      • 1. NO EVIDENCE that the crime was committed by D
                      • 2. TENUOUS evidence
                        • self-contradictory, out of reason and all common sense
                    • prosecution evidence is such that no jury properly directed could convict
                      • BUT if strength of P evidence depends on view of a PW’s credibility = leave to jury
                  • P: right of reply
                    • Judge: No case to answer
                      • direct jury to return verdict of Not Guilty
                    • Judge: there is case to answer
                      • trial proceeds
                        • 7. Defense case
                          • A. Defense opening
                            • Explain charge, elements of charge, evidence, outline of facts, burden of proof
                              • UNLESS D is the only DW = no opening (CPO s.55)
                            • B. Examination in Chief
                              • D prepare D's Proof of Evidence
                              • avoid leading questions
                              • C. Cross-Examination
                                • by P OR counsel for other Ds
                                • D. Re-examination by D's counsel
                                  • BUT might expose more contradictions in evidence
                                  • E. D closes case
                                    • Call more DWs?
                            • D can give evidence (witness box, oath)
                          • 8. P's Closing Speech to Jury
                            • P summarize case + argue
                              • UNLESS D is unrepresented + calls no DWs
                              • improper to say "PW has no motive to lie"
                              • can't comment on D's failure to give evidence
                              • no statements of personal belief
                            • 9. D's Closing Speech to jury
                              • highlight weaknesses and shortcomings in Prosecution case
                                • no "xxx will happen to D if guilty verdict!"
                              • 10. Judge: sum up to Jury
                                • enable the jury to understand their task in this particular case
                                  • understand:
                                    • burden + standard of proof
                                    • roles of judge/jury
                                    • elements of offense/defense
                                    • alternative convictions
                                    • directions on law
                                  • consider each D's evidence separately
                                    • jury retire to consider verdict
                                  • duty: put D case to jury - fair, accurate, understandable
                                    • even the defenses that arise on evidence (not relied on by D)
                                  • judge can comment on evidence, but don't usurp jury
                                • 11. Verdict
                                  • Guilty or Not Guilty
                                    • Not guilty
                                      • D acquitted, jury discharged
                                    • Guilty
                                      • discharge jury --> court proceeds to sentence
                                    • if can't reach verdict --> judge discharge jury
                                  • by foreman of jury (open court, in presence of other members + D)
                                    • if 7 members, unanimous OR 6-1 OR 5-2

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Description
LLB Criminal procedure Mind Map on Trials in CFI, created by Joanna Ip on 15/03/2016.
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Joanna Ip
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