Essay Sample on Criminal Law and Procedure

Posted on October 21, 2011

Criminal law and procedure essay:

In recent years, criminal procedure place the weight of evidence for the prosecution, meaning it is the work of the prosecution side to attest that the defendant is accountable over any rational uncertainty. This is in contrast to having the defendant attest that he/she is blameless, and all uncertainties determined in support of the defendant. The law also permits the defendant the freedom to legal advocate and any defendant who cannot afford a lawyer provided with one by the government.

The common rule in law commands that crucial prove is acceptable unless the law recommends otherwise. Hearsay and rumors not considered as evidence unless the defendant admits of uttering the words claimed against him. Any information attained unlawfully to be used as evident was dismissed to be termed as valid evidence in a court of law. The authority to prohibit unlawful evidence in Australia is entirely under the common law and on statutory requirements.

Its trite law that in criminal proceeding of all jurisdiction that a person is innocent till proven guilty. The burden of proof of all criminal cases lies on the prosecution. The proposed amendments to the Uniform Evidence Act of 1995 are to the effect that, in cases where a person is accused of offences against the person or property, and such person had a number of three previous convictions of similar offences, such evidence of conviction may be adduced in court against the person.

In my opinion if such an amendment is allowed, it would automatically result to a miscarriage of justice in the courts of Australia. Such an amendment also seriously undermines the principle of presumption of innocence and creates suspicion as to the innocence of the accused, as noted in the case of Perry v R 1982 44 ALR. In 1982 the defendant was tried and convicted of attempting to murder her husband by poison. The prosecution evidence against the defendant was that; not only did her husband suffer arsenic and lead poisoning while living with her, and that she was a beneficiary of an insurance policy on her late husband, there were three other people had also died over the past eighteen years, residing together with Ms. Perry, from a result ingesting harmful substances. The defendant was convicted and upon Appeal the Australian High Court squashed the conviction on the grounds that the deaths of the three other people should not have been allowed in court.

Evidence of previous convictions is among the types of evidence that are not admissible in a criminal trial in Australia. These kinds of evidence are not admissible, not because there is proof that the evidence being adduced is faulty or amounts it to a falsehood; but for different reasons depending on the situation. A good example is hearsay and rumors not considered as evidence unless the defendant admits of uttering the words claimed against him. Illegally obtained evidence is also another example of evidence not admissible in a court in South Whales and it’s environs The authority to prohibit unlawful evidence in Australia is entirely under the common law and on statutory requirements.3 Opinions of persons not deemed to be experts in a particular field are not admissible as evidence in any Australian court. Further, there is privileged evidence, for example information shared between a lawyer and his client, or that between a priest and a penitent during confession, which is not admissible in a court of law on account of it being privileged. Confessions that are made under duress are also not admissible in a court of law.

There is also a category of evidence that the court finds admissible without much qualification. This includes direct evidence, which is mainly based on the witness’ personal observation which if it is true, proves a certain fact given by either team. Circumstantial evidence is evidence that gives an inference that a particular fact exist. Corroborating evidence is also another class of evidence readily admissible. Its main purpose is to strengthen initial evidence submitted. Demonstrative evidence is any physical exhibit that can be examined by the jury, while forensic evidence is evidence gathered and studied with the help of science and other specialized methods.

The proposed amendment to the evidence act, amounts to what the law terms as prejudicial evidence. These are the kind whose prejudicial effect would over lap its probative value, which by the rule in the case of R v Christie (1904) AC 545 is not admissible. A criminal trial entails serious offences against the state, and when the accused is facing the court of law, the trial is majorly characterized by the presence of a jury. The defendant is presented with the circumstance of the case in hand and is asked to take a plea to the extent that he agree or disagrees with the charges as read to him. If he agrees to the claims the judge immediately gives a verdict in accordance with the law but if the accused denies he is guilty a case trial then begins.

The prosecutor begins by addressing the jury stating clearly the case in hand against the defendant. Witnesses are then cross-examined by both the prosecutor and the defendant’s representative. When all proof has been represented in the court room the prosecutor and the defendant side presents their final arguments to the court room and precisely to the jury, the judge then offers clearance of how the law applies to the evidence and the case as a whole. The jury is then provided with some privacy, to discuss at length the matter in hand so that substantial verdict can be made. If the jury finds the accused not guilty, the person left free, however if found guilty then the judge with a task of giving sentence to the accused who then becomes a prisoner. It is clear that the work of the jury is to examine the factual points of the case and their correctness, while the judge focuses on the points of law.

Statutory law provides for rules of collecting of evidence in criminal trial and the procedure to be taken. In case of points that are in contention in a criminal trial, a lawful procedure must be followed by both parties where one party provides evidence to influence the court in his/her favor. The law establishes strategies used to ensure that the evidence offered in court can be termed as truthful. Statutory law controls the use of proof whether written or oral and demonstrations in court proceedings as evidence to the case presented.

The common law provides for judicial diplomacy in cases where the evidence provided is not valid enough or is irrelevant section 137 of the common law was expected to give a realistic means of not including expert outlook evidence of indefinite dependability, nevertheless this has not been so, because section 137 of the uniform evidence law states that;

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant”

The suggested amendments being allowed on the onset of trial shift the mindset of the jury, as they assume the guilt and not the innocence of the accused person. Therefore the whole process is then geared towards proving that the accused person is innocent of the alleged crimes, putting the burden on the defence. This would totally distort whatever pillars of ensuring absolute deliverance of justice our fore-fathers put in place and consequently amounting to the accused person being denied the right to a fair trial, a right entrenched in our constitution.

The other reason that for not allowing previous conviction as evidence is that, the jury may be tempted to assume that the way a person behaves in the past, creates a pattern of his behaviour and that they are more likely to act in the same manner. Also, the jury may use this evidence to proof mens rea of the accused person. Clearly, this by inference would mean that bad character evidence is now admissible in the court of law.

In the case of Perry v R 1982 44 ALR Murphy J states that, “common conjecture about improbability of series of events are often wrong”. He goes further to state that if the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association is unlikely to be innocent; an assumption that could be wrong under a particular circumstances. Another rationale for excluding evidence of previous conviction is that, as fate would have it, the facts of the other instances of misconduct may cause a jury to be biased against the accused person. The case of R v Bond (1906) 2 KB 389 Kennedy J noted that once the evidence of previous convictions was admitted it would require herculean efforts by the jury of the time to regard the accused person as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where supported the prosecution case.

However, in law, there are exceptions to every rule. The evidence act provides that it is

Legitimate for the crown to there is legitimate for the Crown to adduce similar fact evidence against the accused and if that accused chooses to testify, then it is also legitimate for the Crown to cross examine that accused about that similar fact evidence. The types of questions are required leave of court.


In accordance to the proposed reforms, to be made in criminal law and procedure the propositions presented are in agreement with what has been in existence for years. In presenting evidence in a court of law, various rules have to be considered, and the law has to be followed to the core. Both parties have to be conversant with the requirements of the law concerning the matter in hand. For instance, evidence provided must be relevant and non-offensive to the defendant. Maintenance of the evidence must also be followed to the core in case a trial case is expected to take longer.

The evidence must not be tampered with, and high security has to be provided to the evidence presented. Expert evidence must conform to the common law requirements to ensure the jury presented with the necessary evident and not being confused by the expert, to alter with their judgment. Trial judges are sometimes victims of a specialist who try to confuse the judges’ assessment and the judge is therefore required by the law not to confuse the jury when analyzing the expert analysis of the case in hand. Secondary authority also plays a significant part in ensuring the criminal law and procedure process of presenting evidence conforms to the rule of law. Therefore, the amendments to be made on criminal law and procedure about the evidence subject should be carried out as the law tries to protect the defendant until proven guilty beyond reasonable doubt. If special care is not taken, and the amendments approved, it would lead to the erosion of the principle of presumption of innocence and thus harming innocent citizens which is more dangerous that failing to punish particular criminals. It would lead to conviction of innocent accused persons who did not commit the alleged crimes, which counters the measure of criminal justice system, one which whose aim is to secure convictions of the guilty in order to facilitate their rehabilitation process.. These results to a pervasion of justice, one in which in this case would have been allowed by a commission for reforms whose main purpose are to be custodians of justice.

One way to ensure the above scenario is avoided would be to not allow for the proposed reforms to go through. Perhaps the agenda should be to tight the noose of justice to ensure that rules of evidence and the letter of the law is adhered to in order to avoid situations where intentions of a certain law are not fulfilled.

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