Judicial usurpation of jury's function

EOK

I was shocked recently to read that Judge Cornelious Murphy had directed the acquittal of a woman on a charge of manslaughter on the basis that he felt "the jury could only find that the single stab wound was in self-defence". Am I alone in thinking that this is an utterly inappropriate direction for a trial judge to make? Without getting into the applicability of the defence in this particular case (there was an issue as to the possibility of escape), surely the appropriateness of a defence is peculiarly a matter for the jury to consider? Whilst I accept that it is absolutely approproriate for a judge to direct an acquittal if the prosection has failed to make out a prima facie case, I fundamentally believe that, once this hurdle has been traversed, the judge must confine himself to issues of law. Whether the behaviour of the woman in this instance fell within the confines of "self-defence" is unquestionably a matter of fact which must be left to the jury.

Tom Young

Is this under appeal?

johnnyskeleton

EOK wrote: »

I was shocked recently to read that Judge Cornelious Murphy had directed the acquittal of a woman on a charge of manslaughter on the basis that he felt "the jury could only find that the single stab wound was in self-defence".

Is this based on a newspaper report? Because don't forget that journalists regularly pick and choose what to publish.

EOK wrote:

Am I alone in thinking that this is an utterly inappropriate direction for a trial judge to make? Without getting into the applicability of the defence in this particular case (there was an issue as to the possibility of escape), surely the appropriateness of a defence is peculiarly a matter for the jury to consider? Whilst I accept that it is absolutely approproriate for a judge to direct an acquittal if the prosection has failed to make out a prima facie case, I fundamentally believe that, once this hurdle has been traversed, the judge must confine himself to issues of law. Whether the behaviour of the woman in this instance fell within the confines of "self-defence" is unquestionably a matter of fact which must be left to the jury.

There are two types of direction a judge can give at half time in a trial (a Galbraith direction). Where the trial judge finds that:
(1) the prosecution case, taken at it's height, does not support the offences as alleged so that no rational jury, properly charged could convict; or
(2) the prosecution case, taken as a whole contains serious flaws or defects to such an extent that it would be unsafe to put it to the jury;
he must direct an acquittal.

If the evidence in a case is such that the only logical conclusion of a rational jury, properly informed of the law as it stands, is that the prosecution case is not capable of proving that the offence happened as alleged, then a judge must direct an acquittal.

So if a judge finds that the evidence shows that the only possible interpretation is that there was no illegal force used (i.e. the only force used was in self defence), a judge should direct an acquittal. By contrast, if there are two possible interpretations of the force used - on one version of events it is illegal force, on the other it is self defence - then that is a matter that is solely within the function of the jury.

EOK

As i said, I have no problem with directions being made at the end of the of the prosecution case. This direction, however, could not have been made at that point because the defence in question, by its very nature, could only be established by the Defendant in her own evidence. Therefore, it was clearly a direction given upon the Court hearing the totality of the evidence in the case.

I understand the point you make in relation to a prosecution failing where the offence has not been established. However, I am seeking to distuinguish this situation on the basis that the interpretation of a positive defence is such an intrinsically factual issue, which could potentially be construed differently by individual jurors, that it should be left to them to determine whether the accused falls within its parameters. In other words, it is so inherently subjective as to be distinct from issues such as identity, the fact that the actus reus (simpliciter) occured etc.

Victor

johnnyskeleton wrote: »

There are two types of direction a judge can give at half time in a trial (a Galbraith direction). Where the trial judge finds that:
(1) the prosecution case, taken at it's height, does not support the offences as alleged so that no rational jury, properly charged could convict; or
(2) the prosecution case, taken as a whole contains serious flaws or defects to such an extent that it would be unsafe to put it to the jury;
he must direct an acquittal.

Does this result in a nolle prosequi? Can it be retried in the future or would that result in the good old double jeopardy?

bigbobbya

Double jeopardy generally applies in such a situation unless the judge makes an order which he has no jurisdiction to make e.g. directing an acquittal before the prosecution has even made its case. The reason for this is that since the order is per se invalid, no previous determination is deemed to have been made in the case, thus a retrial is possible.

johnnyskeleton

EOK wrote: »

As i said, I have no problem with directions being made at the end of the of the prosecution case. This direction, however, could not have been made at that point because the defence in question, by its very nature, could only be established by the Defendant in her own evidence. Therefore, it was clearly a direction given upon the Court hearing the totality of the evidence in the case.

There is a golden thread that runs through the [Irish] criminal justice system - that any man brought before the court on criminal charges is presumed innocent until proven otherwise. This means that the prosecution must prove every element of their case, and disprove any potential defences, and the defence have to do nothing. Once there is a possibility that the defence of self defence is open, the prosecution must disprove that. It is not up to the defence to prove it or to even give any evidence of of self defence. While I don't know what case (hypothetical or otherwise) you are referring to, I imagine from what you originally posted that the judge found that the only possible interpretation of the stab wound was that it was in self defence. This can be established from other evidence and does not need to be given by the accused.

EOK wrote:

I understand the point you make in relation to a prosecution failing where the offence has not been established. However, I am seeking to distuinguish this situation on the basis that the interpretation of a positive defence is such an intrinsically factual issue, which could potentially be construed differently by individual jurors, that it should be left to them to determine whether the accused falls within its parameters. In other words, it is so inherently subjective as to be distinct from issues such as identity, the fact that the actus reus (simpliciter) occured etc.

Put another way, self defence is not a stand alone defence in the strictest sense, but rather it seeks to negative the unlawfulness of that killing/causing serious injury. So the prosecution case must be that any such force used was unlawful. If at the close of the prosecution case it appears that there is insufficient evidence, taken at it's height, for the prosecution to prove that the force was unlawful (i.e. the only possible explaination was that the wound was inflicted in self defence) then the trial judge can correctly direct an acquittal or withdraw the charge from the jury.

Victor wrote: »

Does this result in a nolle prosequi? Can it be retried in the future or would that result in the good old double jeopardy?

No, a nolle prosequi is a prosecution plea which, roughly translated, means "Em, sorry judge, we messed up here somehow so to avoid the embarrasment of a trial we know we can't win, we'll just give up now".

If a judge directs an acquittal then an acquittal is entered, and no retrial can take place.

bigbobbya

johnnyskeleton wrote: »

There is a golden thread that runs through the [Irish] criminal justice system - that any man brought before the court on criminal charges is presumed innocent until proven otherwise. This means that the prosecution must prove every element of their case, and disprove any potential defences, and the defence have to do nothing. Once there is a possibility that the defence of self defence is open, the prosecution must disprove that. It is not up to the defence to prove it or to even give any evidence of of self defence. While I don't know what case (hypothetical or otherwise) you are referring to, I imagine from what you originally posted that the judge found that the only possible interpretation of the stab wound was that it was in self defence. This can be established from other evidence and does not need to be given by the accused.



Put another way, self defence is not a stand alone defence in the strictest sense, but rather it seeks to negative the unlawfulness of that killing/causing serious injury. So the prosecution case must be that any such force used was unlawful. If at the close of the prosecution case it appears that there is insufficient evidence, taken at it's height, for the prosecution to prove that the force was unlawful (i.e. the only possible explaination was that the wound was inflicted in self defence) then the trial judge can correctly direct an acquittal or withdraw the charge from the jury.

The highlighted assertion is fundamentally incorrect - the defence bears an evidential burden in respect of every defence with the exception of insanity for which they bear the full legal burden, albeit to the less onerous standard of proof of the balance of probabilities. As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions. The rational behind this is to save resources while maintaining the integrity of the justice system by not requiring the prosecution to disprove every conceivable defence, as you seem to think is the case. It would be quite simply ridiculous to require the prosecution to negative the likes of automatism and provocation in cases of gangland assassinations.

The point which EOK quite rightly makes about the case in question is that there was absolutely nothing to suggest that the defence had satisfied the evidential burden which it bore to allow the defence of lawful use of force (aka self-defence) to even go to the jury, much less to entitle the judge to direct an acquittal based thereupon. Indeed, it seems that absolutely no treatment was given in that case to the pertinent issue of excessive force which serves to further render it a wholly unsatisfactory decision.

EOK

johnnyskeleton wrote: »

There is a golden thread that runs through the [Irish] criminal justice system - that any man brought before the court on criminal charges is presumed innocent until proven otherwise. This means that the prosecution must prove every element of their case, and disprove any potential defences, and the defence have to do nothing. Once there is a possibility that the defence of self defence is open, the prosecution must disprove that. It is not up to the defence to prove it or to even give any evidence of of self defence. While I don't know what case (hypothetical or otherwise) you are referring to, I imagine from what you originally posted that the judge found that the only possible interpretation of the stab wound was that it was in self defence. This can be established from other evidence and does not need to be given by the accused.





The sentence I have highlighted above illustrates what, in my opinion, is the fundamental issue.

My point is that the applicability of the defence of legitimate force, requiring as it does that the arbiter of fact is satisfied the accused used force which was objectively reasonable in the circumstances (as perceived by the accused), is so fundamentally polarising, based as it is on individual values and morals, that it is entirely inappropriate for a single judge to cast judgment on it. It is far more appropriate for the 12 jurors to apply their own values and judgments in the assessment of the ‘objective reasonableness’ of the accused’s conduct.

In this case Judge Murphy was obviously satisfied that, in his opinion, the facts were such that the only possible outcome was a finding of legitimate force; however, this opinon may not have been shared by some/all of the jurors in the case. Rather, they may have been of the opinion – based on identical facts to those relied on by the judge – that the force was not objectively reasonable.

I am seeking to distuinguish the assessment of factual matters (accepting that the judge is entitled to determine that the prosecution has failed to introduce sufficient evidence to prove a fact in issue) from the interpretation of proven facts. Obviously if there is a conflict of evidence the judge will leave the matter to the jury. I am suggesting that where there is an equal possibility of individual jurors interpreting the same facts in a different manner (as there always will be in the assessment of what is reasonable force), the issue should also be left to the jury.

In short, a potential conflict of interpretation should be dealt with in the same way as a potential conflict as to facts.

johnnyskeleton

bigbobbya wrote: »

The highlighted assertion is fundamentally incorrect - the defence bears an evidential burden in respect of every defence with the exception of insanity for which they bear the full legal burden, albeit to the less onerous standard of proof of the balance of probabilities. As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions. The rational behind this is to save resources while maintaining the integrity of the justice system by not requiring the prosecution to disprove every conceivable defence, as you seem to think is the case. It would be quite simply ridiculous to require the prosecution to negative the likes of automatism and provocation in cases of gangland assassinations.

An "evidential" burden, sometimes called a persuasive burden, is not a legal burden. It is a description of the situation which sometimes arises where, by operation of statute or by overwhelming evidence to the contrary, a certain fact will be presumed to be true unless the other side can show evidence to the contrary.

What I said was correct, the prosecution bear the burden of proving their case, disproving any alternative interpretation of the facts (such as a defence other than insanity and arguably some statutory defences), the defence do not have to do anything. The defence do not have to indroduce thier own defence - a defence is often based on either cross examination of prosecution witnesses or from a memorandum of interview (which is also part of the prosecution case).

I've never heard of the rationale you assert. It is not ridiculous for the prosecution to disprove every conceivable defence, because, by proving every element of the offence beyond reasonable doubt, they must prove that there is no other possible alternative interpretation of the facts. If there are two possible interpretations of the prosecution case, and one of those interpretations would in law be a valid defence, the prosecution have not proved their case beyond a reasonable doubt. For example, if in an assault case the prosecution evidence could be interpreted as A attacking B, or A defending himself against B, then there is a reasonable doubt and the jury must acquit. If there is no other possible interpretation other than A was defending himself against B, then the judge can withdraw the case under the first limb of galbraith.

As Walsh J. stated in The People (Att. Gen) v Quinn [1965] IR 366:"When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury."

bigbobbya wrote: »

The point which EOK quite rightly makes about the case in question is that there was absolutely nothing to suggest that the defence had satisfied the evidential burden which it bore to allow the defence of lawful use of force (aka self-defence) to even go to the jury, much less to entitle the judge to direct an acquittal based thereupon. Indeed, it seems that absolutely no treatment was given in that case to the pertinent issue of excessive force which serves to further render it a wholly unsatisfactory decision.

As above, the defence need prove nothing. It is helpful if they can provide evidence to suggest a defence, but that only needs to raise a doubt it doesn't need to be proved. I don't know what case EOK is referring to so I can't comment on whether the issue of excessive force was pertinent.

johnnyskeleton

EOK wrote:

The sentence I have highlighted above illustrates what, in my opinion, is the fundamental issue.

My point is that the applicability of the defence of legitimate force, requiring as it does that the arbiter of fact is satisfied the accused used force which was objectively reasonable in the circumstances (as perceived by the accused), is so fundamentally polarising, based as it is on individual values and morals, that it is entirely inappropriate for a single judge to cast judgment on it. It is far more appropriate for the 12 jurors to apply their own values and judgments in the assessment of the ‘objective reasonableness’ of the accused’s conduct.

A fundamental part of the offence of manslaughter is that it is the unlawful killing of another person. To be unlawful it must not have been in self defence. If it was the case that there was a possibility of self defence then that is a matter that should properly go to the jury. But if there is no other alternative other than that it was self defence, i.e. if there is absolutely no evidence to suggest that the killing was unlawful, then a rational jury, properly charged, could not convict.

EOK wrote:

In this case Judge Murphy was obviously satisfied that, in his opinion, the facts were such that the only possible outcome was a finding of legitimate force; however, this opinon may not have been shared by some/all of the jurors in the case. Rather, they may have been of the opinion – based on identical facts to those relied on by the judge – that the force was not objectively reasonable.

He must have been satisfied that there was no evidence to suggest that the killing was unlawful.

EOK wrote:

I am seeking to distuinguish the assessment of factual matters (accepting that the judge is entitled to determine that the prosecution has failed to introduce sufficient evidence to prove a fact in issue) from the interpretation of proven facts. Obviously if there is a conflict of evidence the judge will leave the matter to the jury. I am suggesting that where there is an equal possibility of individual jurors interpreting the same facts in a different manner (as there always will be in the assessment of what is reasonable force), the issue should also be left to the jury.

In short, a potential conflict of interpretation should be dealt with in the same way as a potential conflict as to facts.

This is it, and I must say that without a reference to the case it is very hard to answer you. In the original post, the judge was satisfied that "the jury could only find that the single stab wound was in self-defence" - i.e. there was only one interpretation. You are now suggesting that there are two equal possibilities and that is a conflict that should go to the jury.

bigbobbya

johnnyskeleton wrote: »

An "evidential" burden, sometimes called a persuasive burden, is not a legal burden. It is a description of the situation which sometimes arises where, by operation of statute or by overwhelming evidence to the contrary, a certain fact will be presumed to be true unless the other side can show evidence to the contrary.

What I said was correct, the prosecution bear the burden of proving their case, disproving any alternative interpretation of the facts (such as a defence other than insanity and arguably some statutory defences), the defence do not have to do anything. The defence do not have to indroduce thier own defence - a defence is often based on either cross examination of prosecution witnesses or from a memorandum of interview (which is also part of the prosecution case).

I've never heard of the rationale you assert. It is not ridiculous for the prosecution to disprove every conceivable defence, because, by proving every element of the offence beyond reasonable doubt, they must prove that there is no other possible alternative interpretation of the facts. If there are two possible interpretations of the prosecution case, and one of those interpretations would in law be a valid defence, the prosecution have not proved their case beyond a reasonable doubt. For example, if in an assault case the prosecution evidence could be interpreted as A attacking B, or A defending himself against B, then there is a reasonable doubt and the jury must acquit. If there is no other possible interpretation other than A was defending himself against B, then the judge can withdraw the case under the first limb of galbraith.

As Walsh J. stated in The People (Att. Gen) v Quinn [1965] IR 366:"When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury."



As above, the defence need prove nothing. It is helpful if they can provide evidence to suggest a defence, but that only needs to raise a doubt it doesn't need to be proved. I don't know what case EOK is referring to so I can't comment on whether the issue of excessive force was pertinent.

The definition you have given of the evidential burden is chronically under-inclusive and your claim that the defence generally bear no burden whatsoever remains untrue. There must, as I have said before, be sufficient evidence before the court to allow the trial judge to leave any defence to the jury which amounts to more than a mere denial of the prosecution case (a tactic alluded to in the second paragraph of your latest post, which is a completely separate issue from what you might call 'positive' defences).

All the quote from Walsh J proves is that sometimes, the prosecution may do the defence's job for them. In the overwhelming majority of cases, the fact remains that the defence will need to actively adduce at least some evidence to satisfy the trial judge that he should allow the jury to consider the defence. Any decision of a judge such as that in the case which provoked this thread, which not only allows a defence to go to the jury (without any evidence of same having been adduced by either side) but furthermore accepts it on their behalf is at variance with the well-established principles of the common law.

On the point of negation of defences, if you have witnessed a criminal trial as I'm sure you have, you will know that the prosecution does not go through every conceivable defence as you seem to allege. They do not have to adduce evidence to show that the accused was not intoxicated, not provoked, not in a state of automatism etc. etc. Were they to bear such a responsibility, criminal trials could conceivably go on for months. The presumption of innocence and broader right to a fair trial remain the central pillars of the criminal justice system, but they do not mandate a system which entertains pure fantasy before securing a conviction.

In all, I think you may have misunderstood my point; I am not claiming for a second that the defence bears any general legal burden, merely that the rules of evidential burdens dictate that a jury cannot utilise a particular defence that has not been properly put before them. Both of these burdens are burdens of proof and while one is infinitely more onerous than the other, the simple fact remains that a purely passive stance will not satisfy the evidential burden of adducing a recognised defence in the majority of cases.

johnnyskeleton

bigbobbya wrote: »

The definition you have given of the evidential burden is chronically under-inclusive

What's missing then?

bigbobbya wrote:

and your claim that the defence generally bear no burden whatsoever remains untrue.

In a criminal trial the prosecution bear the burden of proof and the accused does not have to prove anything. That does not mean that the accused will not, from time to time, decide to give evidence to establish certain facts or to disprove others, but he is not required to do so.

bigbobbya wrote:

There must, as I have said before, be sufficient evidence before the court to allow the trial judge to leave any defence to the jury which amounts to more than a mere denial of the prosecution case (a tactic alluded to in the second paragraph of your latest post, which is a completely separate issue from what you might call 'positive' defences).

I never said that a mere denial entitles the jury to consider a possible defence. What I did say was that the prosecution must disprove any alternative interpretation of the facts. You are correct in what you say there, that there must be sufficient evidence before the court before the defence can be put to the jury(and this is a side point because the OP was discussing galbraith directions) but I do not accept what you say when you assert that "As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions". The defence do not have to, the evidence can come from the prosecution case. If it arises from the prosecution evidence then the prosecution must disprove it and the defence can just sit back. There is never a shift in the burden of proof, even for what you have called positive defences (and which some call strict sense defences). In some cases, where the evidence is not elicited from the prosecution case which supports such a defence it will not go to the jury (again a side point) unless some credible evidence is put forward by the accused. But

bigbobbya wrote:

All the quote from Walsh J proves is that sometimes, the prosecution may do the defence's job for them.

It is the dicta of one of Ireland's most respected judges in one of the most important cases on the burden of proof, but if you want to dismiss it that's fine.

bigbobbya wrote:

In the overwhelming majority of cases, the fact remains that the defence will need to actively adduce at least some evidence to satisfy the trial judge that he should allow the jury to consider the defence.

Unless you can back this up with statistical analysis, I will not accept it as true. I do not need to adduce any evidence to suggest that it might not be true, because you are the one trying to prove it. I can sit back, and if you were to, for example, point to cases which could be interpreted as suggesting that it is not true, then there is at least some evidence that the good jury of boards.ie can consider. The fact that I do nothing to actively adduce this evidence does not mean that it isn't evidence indicative that I am right.

bigbobbya wrote:

Any decision of a judge such as that in the case which provoked this thread, which not only allows a defence to go to the jury (without any evidence of same having been adduced by either side) but furthermore accepts it on their behalf is at variance with the well-established principles of the common law.

First of all, I haven't been referred to any specific case so I can't possibly verify what you say, but it seems to me that you are giving a different verison of events as those set out in the OP. Firstly, the judge did not allow a defence to the jury, he directed that it would be unsafe to go to the jury. Secondly, there is nothing in the OP to suggest what kind of evidence was adduced. Thirdly, the OP did not say that the judge made a finding of fact that there was self defence, he (in the words posted by the OP) found that "the jury could only find that the single stab wound was in self-defence". Fourthly, which particular well established principles of the common law are you referring to?

bigbobbya wrote:

On the point of negation of defences, if you have witnessed a criminal trial as I'm sure you have, you will know that the prosecution does not go through every conceivable defence as you seem to allege. They do not have to adduce evidence to show that the accused was not intoxicated, not provoked, not in a state of automatism etc. etc. Were they to bear such a responsibility, criminal trials could conceivably go on for months. The presumption of innocence and broader right to a fair trial remain the central pillars of the criminal justice system, but they do not mandate a system which entertains pure fantasy before securing a conviction.

I'll repost what I said to you earlier, as I feel you are either not reading it or you are simply ignoring it: "It is not ridiculous for the prosecution to disprove every conceivable defence, because, by proving every element of the offence beyond reasonable doubt, they must prove that there is no other possible alternative interpretation of the facts. " They must prove that X did Y intending Z, and that there is no possibility that he actually did Y2 or that he intended Z2. To disprove consent in an assault case the prosecution can ask the injured party did you consent, did you want to be punched, or they can, perhaps more typically, assert that the circumstances are such that the only possible inferrence from them is that there was no consent. So if someone walks up to another random person, shouts "I'm going to beat you senseless" the injured party states that shouted "stop, get off me" and that he tried to get away can be used to infer that the only possible intention of the accused was to assault the other person without consent. If, however it could be inferred from the circumstances as adduced by the prosecution that the injured party may have consented to the assault (or that some other defence is available) the prosecution must negative those inferrences. So a strong prosecution case in assault will be that the person used unlawful force, intended to use such force, and that the injured party did not consent. There will be no other possible interpretation of the prosecution case.

bigbobbya wrote:

In all, I think you may have misunderstood my point; I am not claiming for a second that the defence bears any general legal burden, merely that the rules of evidential burdens dictate that a jury cannot utilise a particular defence that has not been properly put before them. Both of these burdens are burdens of proof and while one is infinitely more onerous than the other, the simple fact remains that a purely passive stance will not satisfy the evidential burden of adducing a recognised defence in the majority of cases.

That's not the point you were making earlier. Here you are saying that there must be some evidence upon which they can base their finding. I agree with this, based on the words of Walsh J in Quinn (for which there would be no harm if you read them again) that the evidence to support a defence can (and often, in my view, does) arise from the prosecution evidence.

This is in contrast to what you said earlier:

"the defence bears an evidential burden in respect of every defence with the exception of insanity for which they bear the full legal burden, albeit to the less onerous standard of proof of the balance of probabilities. As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions. "

EOK

johnnyskeleton wrote: »

He must have been satisfied that there was no evidence to suggest that the killing was unlawful.

Whether the killing is unlawful or not depends on the interpretation of the evidence (that is, whether the force used was reasonable in the circumstances). Judge Murphy obviously concluded here that no jury could consider the force used in the case to have been anything other than reasonable. I'm saying that what people consider to be 'reasonable' is so dependent on individual values that, by directing an acquittal, the judge was usurping the jury's duty to decide this matter for itself.

bigbobbya

johnnyskeleton wrote: »

What's missing then?



In a criminal trial the prosecution bear the burden of proof and the accused does not have to prove anything. That does not mean that the accused will not, from time to time, decide to give evidence to establish certain facts or to disprove others, but he is not required to do so.



I never said that a mere denial entitles the jury to consider a possible defence. What I did say was that the prosecution must disprove any alternative interpretation of the facts. You are correct in what you say there, that there must be sufficient evidence before the court before the defence can be put to the jury(and this is a side point because the OP was discussing galbraith directions) but I do not accept what you say when you assert that "As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions". The defence do not have to, the evidence can come from the prosecution case. If it arises from the prosecution evidence then the prosecution must disprove it and the defence can just sit back. There is never a shift in the burden of proof, even for what you have called positive defences (and which some call strict sense defences). In some cases, where the evidence is not elicited from the prosecution case which supports such a defence it will not go to the jury (again a side point) unless some credible evidence is put forward by the accused. But



It is the dicta of one of Ireland's most respected judges in one of the most important cases on the burden of proof, but if you want to dismiss it that's fine.



Unless you can back this up with statistical analysis, I will not accept it as true. I do not need to adduce any evidence to suggest that it might not be true, because you are the one trying to prove it. I can sit back, and if you were to, for example, point to cases which could be interpreted as suggesting that it is not true, then there is at least some evidence that the good jury of boards.ie can consider. The fact that I do nothing to actively adduce this evidence does not mean that it isn't evidence indicative that I am right.



First of all, I haven't been referred to any specific case so I can't possibly verify what you say, but it seems to me that you are giving a different verison of events as those set out in the OP. Firstly, the judge did not allow a defence to the jury, he directed that it would be unsafe to go to the jury. Secondly, there is nothing in the OP to suggest what kind of evidence was adduced. Thirdly, the OP did not say that the judge made a finding of fact that there was self defence, he (in the words posted by the OP) found that "the jury could only find that the single stab wound was in self-defence". Fourthly, which particular well established principles of the common law are you referring to?



I'll repost what I said to you earlier, as I feel you are either not reading it or you are simply ignoring it: "It is not ridiculous for the prosecution to disprove every conceivable defence, because, by proving every element of the offence beyond reasonable doubt, they must prove that there is no other possible alternative interpretation of the facts. " They must prove that X did Y intending Z, and that there is no possibility that he actually did Y2 or that he intended Z2. To disprove consent in an assault case the prosecution can ask the injured party did you consent, did you want to be punched, or they can, perhaps more typically, assert that the circumstances are such that the only possible inferrence from them is that there was no consent. So if someone walks up to another random person, shouts "I'm going to beat you senseless" the injured party states that shouted "stop, get off me" and that he tried to get away can be used to infer that the only possible intention of the accused was to assault the other person without consent. If, however it could be inferred from the circumstances as adduced by the prosecution that the injured party may have consented to the assault (or that some other defence is available) the prosecution must negative those inferrences. So a strong prosecution case in assault will be that the person used unlawful force, intended to use such force, and that the injured party did not consent. There will be no other possible interpretation of the prosecution case.



That's not the point you were making earlier. Here you are saying that there must be some evidence upon which they can base their finding. I agree with this, based on the words of Walsh J in Quinn (for which there would be no harm if you read them again) that the evidence to support a defence can (and often, in my view, does) arise from the prosecution evidence.

This is in contrast to what you said earlier:

"the defence bears an evidential burden in respect of every defence with the exception of insanity for which they bear the full legal burden, albeit to the less onerous standard of proof of the balance of probabilities. As such, the defence must always introduce a defence with a sufficient degree of persuasion so as to allow it to go to the jury as a potential explanation for the accused's actions. "

1. Here's a proper definition of the evidential burden of proof: "The burden on a party to adduce enough evidence of an allegation to enable the judge to allow the issue to be heard and examined by the jury." It is not confined to situations relating to statutory presumptions or there being overwhelming evidence to the contrary as you stated. In a case where someone seeks to
raise the defence of intoxication, there does not need to be overwhelming evidence that they were sober before an evidential burden falls on them to prove intoxication to a sufficient degree to allow the matter to go before the jury.

2. "In a criminal trial the prosecution bear the burden of proof and the accused does not have to prove anything." You've repeated this line about 6 times now and it's not going to become correct by pure repetition alone. First of all, which burden? The very fact that you can make such an assertion without distinguishing between the legal burden and the evidential burden just shows everyone how fundamentally misguided you are on this point. If you are speaking about the legal burden (not the main subject of this thread!) you are almost right; there are certain cases, such as insanity and the largely defunct peculiar knowledge principle, in which the accused will in fact bear the full legal burden of proof. In the case of the evidential burden, as I have shown time and again, you are absolutely wrong. The mere fact that the prosecution may sometimes satisfy the evidential burden that rests on the accused does not change the fact that it so rests on him. The very same thing can happen on the opposite side i.e. the accused can help the prosecution to satisfy any of their evidential/legal burdens by admitting something on cross-examination etc. etc.

3. Your comment alleging that I disagreed with Walsh J's sentiments was particularly laughable. I would imagine that the man is now turning in his proverbial grave as he watches you quote passages from his judgments in a vain effort to establish something that they simply do not assert.

4. As for the statistical analysis of defences, I'm afraid that the Courts Service don't issue such details, much as I would love to oblige you. In the meantime, the 'good jury of boards.ie' (give me a break) will have to settle for isolated examples which I would be more than happy to provide if necessary. The sentence with which you conclude that paragraph i.e. "The fact that I do nothing to actively adduce this evidence does not mean that it isn't evidence indicative that I am right" is one of the most incoherent and cumbersome I have ever had the misfortune to read. If you're going to write such long-winded replies which I will, of course, have the good grace to read, please don't litter them with nonsense.

5. As for the case which is the subject of this thread, which you admit you're not familiar with hence I wonder why you keep commenting on it: (i) I didn't say the judge let the defence go to the jury, I said he accepted it on their behalf by directing an acquittal which is what he did (ii) there was no evidence of self-defence emerging from the prosecution case (iii) Your comment: "Thirdly, the OP did not say that the judge made a finding of fact that there was self defence, he (in the words posted by the OP) found that "the jury could only find that the single stab wound was in self-defence"." I hope for your sake that I don't have to point out how ridiculous that observation is. It roughly translates as: 'the judge didn't make a finding of fact on behalf of the jury, he merely made a finding of fact on their behalf.' (iv) the well-established principle to which I refer (with which you may be familiar) is the principle that juries are the supreme arbiters of fact in a criminal trial. As such, whether someone acted in self-defence should have been left to them.

6. All your example about the assault establishes is that the prosecution bear the legal burden of proof to show every element of the offence beyond reasonable doubt, a reality which is not in dispute. It is an element of the actus reus of assault simpliciter that the victim did not consent. As such, consent is not a defence in the strictest sense of the word. To modify your example, if the assailant were claiming that he had assaulted the man while labouring under duress, he would bear the evidential burden of proving same and would be required (in the absence of any evidence of such duress being forthcoming from the prosecution case) to produce sufficient evidence of such duress to allow the defence to go to the jury. Once he has satisfied this burden, the prosecution would then be required to negative this defence beyond reasonable doubt. My point, which I am now certain you do not understand, was (and remains) that before the prosecution is required to disprove the defence, there would have to be sufficient evidence before the court to allow a jury to consider it. If I am tried for assault causing harm, I cannot simply walk into court and say 'I was acting under duress' and have the jury consider such a possibility - I must produce (or in some cases, as discussed above, the prosecution must in the course of its evidence produce) some evidence to suggest that this could conceivably be the case. Admittedly, the evidential burden it not particularly onerous but that does not alter the simple fact that it is real and present.

7. In relation to the highlighted semantics to the effect that the defence must always 'produce' the evidence which satisfies their legal burden, it was implicit within that remark (and I have since repeatedly clarified) that on occasion this evidence relied on to satisfy the accused's evidential burden may be derived from the prosecution case.

padser

johnnyskeleton wrote: »

In a criminal trial the prosecution bear the burden of proof and the accused does not have to prove anything. That does not mean that the accused will not, from time to time, decide to give evidence to establish certain facts or to disprove others, but he is not required to do so.

I think Bigbobbya you are missing this point.


To say the accused doesn't have to prove anything is of course technically correct. They don't. The prosecution must prove all aspects of their case.

However this doesn't mean that (and I think that this is what Bigbobbyia is getting at) that your defence barrister can allow the prosecution to make its case and then stand up and say

'Self Defence, Intoxication, Insanity, BWS (what its a man?? - prove it), provocation' '1 - 2 - 3....GO'

and then the prosectution has to disprove every concievable defence.

The defence must sucessfully 'raise' a defence and to this effectively involves some element of evidence or proof. I think thats where some of the confusion seems to be coming from.

TO GET BACK ON TOPIC!

Bigbobbya - Its a well accepted legal principle that the judge has the right to direct a jury to aquit on the basis that any other interpretation of the facts would be a perversion of justice (Broome v Agar (1928) 138 LT Page 698) - this was a libel case and the judge is saying 'no interpretation of these words could be defamatory'. Here the judge is saying 'no reasonable interpretation of these facts can be manslaughter'. Its the same principle and happens on a fairly common basis. It generally means someone has not done a good on the prosecutions front - either in allowing the case to go to court or in preparing the case for court.

bigbobbya

padser wrote: »

I think Bigbobbya you are missing this point.


To say the accused doesn't have to prove anything is of course technically correct. They don't. The prosecution must prove all aspects of their case.

However this doesn't mean that (and I think that this is what Bigbobbyia is getting at) that your defence barrister can allow the prosecution to make its case and then stand up and say

'Self Defence, Intoxication, Insanity, BWS (what its a man?? - prove it), provocation' '1 - 2 - 3....GO'

and then the prosectution has to disprove every concievable defence.

The defence must sucessfully 'raise' a defence and to this effectively involves some element of evidence or proof. I think thats where some of the confusion seems to be coming from.

TO GET BACK ON TOPIC!

Bigbobbya - Its a well accepted legal principle that the judge has the right to direct a jury to aquit on the basis that any other interpretation of the facts would be a perversion of justice (Broome v Agar (1928) 138 LT Page 698) - this was a libel case and the judge is saying 'no interpretation of these words could be defamatory'. Here the judge is saying 'no reasonable interpretation of these facts can be manslaughter'. Its the same principle and happens on a fairly common basis. It generally means someone has not done a good on the prosecutions front - either in allowing the case to go to court or in preparing the case for court.

The use of civil cases to prove points of criminal law is less than useless, you should be aware of that fact. However, accepting your flawed example, my point is not that the judge in question had no right in any set of conceivable circumstances to direct an acquittal, but rather that on the facts before him he had no basis to do so since neither the defence (nor the prosecution by implication on their behalf) had satisfied the evidential burden of proof that rests on every accused to allow any active defence to go to the jury.

I concede by all means that this thread has strayed from topic and that there has been much confusion, however this has been the result of users posting in relation to a case with which they are not familiar, of which I am not one.

Your post, like so many before it, fails to address the fundamental difference between the legal and evidential burdens of proof. If someone wants to take proper issue with my explanation of that distinction and its operation, I would be more than happy to address their grievances.

johnnyskeleton

EOK wrote: »

Whether the killing is unlawful or not depends on the interpretation of the evidence (that is, whether the force used was reasonable in the circumstances). Judge Murphy obviously concluded here that no jury could consider the force used in the case to have been anything other than reasonable. I'm saying that what people consider to be 'reasonable' is so dependent on individual values that, by directing an acquittal, the judge was usurping the jury's duty to decide this matter for itself.

Trial Judges, and the CCA, are usually very unwilling to interfere with a jury's decision. So in a rape case, for example, if a victim says there was consent and in a memorandum of interview (or some other part of the prosecution case) it appears that there was consent or that the accused reasonably believed there was consent, that is a matter properly to be put before the jury and a judge should not interfere. However, if the complainant does not give clear evidence that the accused inserted his penis into her vagina, although she does repeatedly say "he raped me" etc, then it would be wrong of them to convict of rape. When there are two possible interpretations of a fact in issue, it is usually for the jury to decide between the two. However, when the only possible interpretation is that the offence didn't happen or that the accused was not guilty, the trial judge can dismiss the charge / direct an acquittal.

I think the big problem is that yourself and bigbobbya seem to know the specifics of a case, while the rest of us are limited to general propositions. I would venture to suggest that, in the specific case referred to, you believe there was a sufficiently credible account that the offence took place to leave it to the jury to determine.

johnnyskeleton

bigbobbya wrote: »

1. Here's a proper definition of the evidential burden of proof: "The burden on a party to adduce enough evidence of an allegation to enable the judge to allow the issue to be heard and examined by the jury." It is not confined to situations relating to statutory presumptions or there being overwhelming evidence to the contrary as you stated. In a case where someone seeks to
raise the defence of intoxication, there does not need to be overwhelming evidence that they were sober before an evidential burden falls on them to prove intoxication to a sufficient degree to allow the matter to go before the jury.

The defence of intoxication, in the forced terms of the courts, only applies to offences of specific intent. In reality this means murder. To prove murder the prosecution must prove malicious intent to kill. By proving malicious intent they must have negatived any possibility that the accused did not intend to kill or that his intent was not malicious.

bigbobbya wrote:

The very fact that you can make such an assertion without distinguishing between the legal burden and the evidential burden just shows everyone how fundamentally misguided you are on this point.

The burden of proof, in it's most common usage means the legal burden.

bigbobbya wrote:

My point, which I am now certain you do not understand, was (and remains) that before the prosecution is required to disprove the defence, there would have to be sufficient evidence before the court to allow a jury to consider it.

That's not your point. You stated that the defence bear an evidential burden of proof as regards the defence, and so they must introduce this defence. I think you now seem to accept that evidence upon which the defence can rely can come from the prosecution case.

bigbobbya wrote:

If I am tried for assault causing harm, I cannot simply walk into court and say 'I was acting under duress' and have the jury consider such a possibility - I must produce (or in some cases, as discussed above, the prosecution must in the course of its evidence produce) some evidence to suggest that this could conceivably be the case. Admittedly, the evidential burden it not particularly onerous but that does not alter the simple fact that it is real and present.

Lets look at the situation where the prosecution do, in their case, produce evidence that there could have been duress involved (lets say, for example, it is in the accused's statement or a prosecution witness gives evidence that it was possible). Here the prosecution must disprove duress and the defence has to do nothing.

Lets take another example, where there is an assault causing harm and the defence does not do anything, does not cross examine, does not go into evidence, does not even address the jury. The prosecution will say to the jury that "if you are satisfied beyond reasonable doubt that the prosecution case is made out, and there is no possible alternative version of events, you must to convict." Again, they bear the burden of disproving any alternative version of events, therefore disproving any possible defence. The jury will not be invited to consider defences such as duress etc unless they arise from the evidence, but nevertheless, the prosecution must satisfy them that there was no possible defence.

johnnyskeleton

We can debate this back and forth but essentially you are agreeing with me. Here's what I initially posted:

johnnyskeleton wrote:

There is a golden thread that runs through the [Irish] criminal justice system - that any man brought before the court on criminal charges is presumed innocent until proven otherwise. This means that the prosecution must prove every element of their case, and disprove any potential defences, and the defence have to do nothing. Once there is a possibility that the defence of self defence is open, the prosecution must disprove that. It is not up to the defence to prove it or to even give any evidence of of self defence.

You placed emphasis on the bold line. The prosecution must disprove any potential defence. I never suggested that they need to go through all the recognised defences to the particular offence and state that there is no proof. But, save as where statute expressly provides, there is never a burden on the defence to prove anything. While they might, from time to time, deem it necessary to adduce evidence of a particular fact, they are not obliged to do so, and by not doing so they are not automatically convicted.

I say that my original post is a correct statement of the burden of proof.

johnnyskeleton

bigbobbya wrote: »

The use of civil cases to prove points of criminal law is less than useless, you should be aware of that fact.

I disagree. A most obvious example is that proof of property for a theft or related offence is based on civil law. The CCA has suggested that it is appropriate that a trial judge contrast the criminal standard of proof with the criminal standard. On a more specific basis, evidential burdens of proof are more common in civil litigation than in criminal.

bigbobbya wrote:

However, accepting your flawed example, my point is not that the judge in question had no right in any set of conceivable circumstances to direct an acquittal, but rather that on the facts before him he had no basis to do so since neither the defence (nor the prosecution by implication on their behalf) had satisfied the evidential burden of proof that rests on every accused to allow any active defence to go to the jury.

The gist of this whole thread is whether a trial judge is capable of making such a direction in the cirucmstances. Since you have not made any reference to the specifics of this case, how are we to know what the facts were? As regards your comment about the defence going to the jury, if you take on trust my definition of the burden of proof (that the prosecution must prove their case beyond reasonable doubt, which means negativing any possible defence) you will see that a trial judge is entitled to find that the only logical interpretation of the prosecution case is that the wound was caused by self defence.

bigbobbya wrote:

I concede by all means that this thread has strayed from topic and that there has been much confusion, however this has been the result of users posting in relation to a case with which they are not familiar, of which I am not one.

Until you give us some indication of what the evidence was in this case you speak about, we are confined to discussing the legal principle.

bigbobbya wrote:

Your post, like so many before it, fails to address the fundamental difference between the legal and evidential burdens of proof. If someone wants to take proper issue with my explanation of that distinction and its operation, I would be more than happy to address their grievances.

You are entitled to post in this forum by all means, but don't deride another poster because they don't agree with you.

bigbobbya

johnnyskeleton wrote: »

We can debate this back and forth but essentially you are agreeing with me. Here's what I initially posted:



You placed emphasis on the bold line. The prosecution must disprove any potential defence. I never suggested that they need to go through all the recognised defences to the particular offence and state that there is no proof. But, save as where statute expressly provides, there is never a burden on the defence to prove anything. While they might, from time to time, deem it necessary to adduce evidence of a particular fact, they are not obliged to do so, and by not doing so they are not automatically convicted.

I say that my original post is a correct statement of the burden of proof.

Way to backtrack like there's no tomorrow. Oh, and you're still being completely under-inclusive by using the 'statutory' definition.

johnnyskeleton

bigbobbya wrote: »

Way to backtrack like there's no tomorrow. Oh, and you're still being completely under-inclusive by using the 'statutory' definition.

How exactly did I backtrack? I started off stating that the prosecution need to prove everything and disprove any potential defence, while the defence have to prove nothing. You took issue with this and stated that there is an evidential burden on the defence as regards their defence, and this means that they must adduce evidence of same. I am still saying that there is never a burden on the defence to prove anything. They can simply sit back, and if it should arise from the prosecution case that an alternative version of events, which would indicate the accused's innocence, is there, the jury are entitled to consider that defence. The defence could be stone cold silent for all of this and still be acquitted.