Problem
Who must prove it?
D is charged with murder. He says the gun went off by accident. In the alternative his counsel says he was insane at the time, within the M'Naghten Rules. Separately, E, a public officer, is charged under a statute which deems a gift from a contractor corrupt unless the contrary is proved. The judge in D's trial says D must prove accident beyond reasonable doubt, and that the prosecution need not deal with insanity unless D proves it beyond reasonable doubt. The judge in E's trial says E must prove the gift was innocent beyond reasonable doubt. Advise D and E.
issue
Where does the legal burden lie on accident, on insanity, and on a statutory reverse burden, and what is the standard in each case?
rule
Woolmington: the prosecution proves every ingredient of the offence beyond reasonable doubt, subject to insanity and to any statutory exception. The burden does not shift. Insanity is a legal burden on the accused, on the balance of probabilities, within the M'Naghten Rules. R v Carr-Briant fixes that same civil standard wherever statute puts a legal burden on the accused. Accident is not in either exception. It is an evidential matter. Once it is raised, the prosecution must disprove it beyond reasonable doubt. Section 23(4) of the Constitution of Sierra Leone 1991 is the constitutional statement of the presumption of innocence.
application
D's accident direction is the direction the House of Lords quashed in Woolmington. He does not have to prove the accident at all, still less beyond reasonable doubt. If he points to evidence of accident, the prosecution fails unless the jury is sure it was not an accident. His insanity direction uses the wrong standard. He does bear that legal burden, but R v Sodeman and Carr-Briant put it on the balance of probabilities. The prosecution must still prove the killing and the other ingredients beyond reasonable doubt. E's statute is an express reverse burden of the kind Carr-Briant decided. He must prove that the gift was not corrupt, but only on the balance of probabilities. A direction that he must make the jury sure is a misdirection. Hunt is the reminder that a reverse burden is not implied lightly. E's statute is express, so Hunt does not save him from the burden. It does fix the standard.
conclusion
Both directions are wrong. D proves neither accident nor insanity beyond reasonable doubt. He proves insanity, if he relies on it, on the balance of probabilities, and the prosecution disproves accident. E proves the statutory defence on the balance of probabilities, not to the criminal standard.
Problem
A fleeting glimpse
F is charged with robbery. The only witness is G, who saw a masked man for a few seconds, under a street light, from across a road, and who did not know F. Two weeks later G picked F out at an identification parade. F's alibi is proved to have been false. There is no other evidence. The judge tells the jury that G was a confident witness, so they may convict if they believe him, and that a false alibi is itself enough to prove presence. He says nothing else about identification. Advise F.
issue
Was a Turnbull direction required, was the quality of the identification good enough to leave to the jury, and was the false alibi supporting evidence?
rule
Turnbull applies where the case depends wholly or substantially on a visual identification which the defence disputes. The judge must warn of the special need for caution, tell the jury that a convincing witness can be mistaken, and examine time, light, distance, obstruction, recognition and delay. A poor identification, a fleeting glimpse or a difficult view, is withdrawn unless other evidence supports it. Supporting evidence need not be technical corroboration. A false alibi is not automatically support. It supports only if the jury is sure the lie was told to deceive them on the question of presence. Voice identification is outside these rules. This case is visual.
application
The case depends entirely on G's identification, and F disputes it. Turnbull applies. A few seconds, at night, across a road, of a masked stranger, is poor quality on the examples given here. Confidence does not cure it. Without support the judge should withdraw the case. The false alibi might be support, but only after a proper direction on why F lied. The judge treated it as automatic proof of presence. That is the direction Lucas and Turnbull both forbid. Even if the alibi could support, the summing-up never gave the warning, never dealt with the circumstances, and never told the jury what would not be support. The conviction is unsafe on the application of Turnbull.
conclusion
F's conviction should be quashed. The identification was poor, the warning was missing, and the false alibi was used for more than it can prove.
Essay
From Makin to DPP v P
Similar-fact evidence is sometimes described as a closed list of categories, and sometimes as a single test of probative value. Explain the development from Makin v Attorney-General for New South Wales to DPP v P, and say what a trial judge should ask before admitting evidence of other misconduct.
issue
What is the test for admitting evidence of misconduct other than the offence charged, and did Boardman or DPP v P replace Makin?
rule
Makin states two propositions. Other criminal acts are not admissible merely to show that the accused, by his disposition, is likely to have committed the offence charged. They are admissible if they are relevant to a fact in issue, classically whether the act was designed or accidental, or to rebut a defence otherwise open. The categories are applications: accident in R v George Joseph Smith, identity in R v Straffen and R v Thompson, innocent association in R v Ball. Boardman did not overrule Makin. It held that the evidence is admitted when its probative force, often shown by a striking similarity, is strong enough that coincidence would be an affront to common sense. The category is less important than the degree of relevance. Rance and Scarrott warned that 'striking similarity' is not a formula. DPP v P held that it is only one route to the real question: whether the probative force is sufficiently great to make it just to admit the evidence despite the prejudice. The incest case did not need a signature method. The stock-in-trade of the offence could still have that force. R v H followed P.
application
A judge who starts with a list of categories will admit the brides in the bath and exclude a bare list of previous convictions, which is right, but will struggle with DPP v P, where the Court of Appeal found no striking similarity and the House of Lords still admitted the evidence. A judge who starts with prejudice, and asks only whether the other misconduct is more probative than prejudicial, will do what P requires, and will still exclude the evidence Makin forbids, because bare propensity has no probative force on the offence charged. Identity cases will in practice still need a distinctive similarity, as Straffen had. Accident cases will still look like Smith. Those patterns are examples of probative force. They are not separate rules. The account stops at P. Later statutory reforms of bad character are outside this chapter.
conclusion
Makin remains the reason bare propensity is excluded. Boardman and then DPP v P replace the closed categories with one question: is the probative force strong enough to justify the prejudice? Striking similarity is a sufficient answer. It is not a necessary one.
