Definition: One defendant gives evidence that is damaging to a co-defendant's case. Going as far as directly accusing the other person of the crime, seeking to exonerate themselves.
Evidence may be given directly by the defendant as a positive aspect of their case or elicited by prosecution question. The conventional view is that it does not end well. Outcome will depend on a multitude of factors.
Arguments:
evidence against an applicant for separate trial is significantly weaker than and different to admissible against the other accused to be jointly tried with him.
Evidence against those other accused contains material highly prejudicial to the applicant
Where there is a real risk than weaker crown case against the applicant will me made immeasurably stronger by reason of prejudicial material
Considerations:
Defendants accused of criminal activity frequently seek to place blame on other defendants to the same alleged criminal conduct with the view of avoiding liability.
Likely to fail but if the defendant is adamant then the course of proceeding is to be followed. Possibility should not be lightly dismissed.
Circumstance requires detailed consideration of the surrounding events. Likelihood of evidence proposed to put forward being believed. Aim of the tactic being achieved.
R v Whiskeyjack 2022 ABCA 76:
Trial judge erred in their instructions to the jury on how they were to assess the evidence of one accused who pointed the finger at his co-accused.
Did the trial judge err in their instructions to the jury on their consideration of Mr Whiskeyjack credibility?
Mr Whiskeyjack and co-accused were charged with second-degree murder. He testified at trial and pointed the finger at his co-accused. Mr Whiskeyjack was convicted.
The court allowed the appeal, set aside the conviction and ordered a new trial. When an accused mounts a cut throat defence it can present various challenges. It did not distinguishing between how the jury was to approach an assessment of the appellant evidence in their consideration of the guilt of the co-accused and the appellant himself.
Section 103(1)(b)
Propensity to be untruthful
Important matter in issue between prosecution and defence within the terms of subsection 101(1)(d) and 112 and s103(1)(b). Evidence of a defendant bad character may be admitted if the particular matter in issue. The question whether the defendant has a propensity to be untruthful. Constitute a sufficiently clear assurance by the executive to parliament about the meaning of the clause.
Varley [1982] 2 All ER 519
"two experienced criminals metaphorically cut each other's throats in the course of their respective defences"
Manfo Kwaku Asiedu
Man admitted being the fifth 21 July bomber days before his retrial was due. Legal team had pursued a cut throat defence, incriminated his co-accused. He admitted there had been a conspiracy to commit carnage but he claimed he had been forced to take part under duress. He admitted to one charge of conspiracy to cause explosions - the charge of conspiracy to murder was dropped.
Until the next Legal Thought,
Elicia Maxwell
References:
https://www.kangssolicitors.co.uk/uncategorized/the-cut-throat-defence-kangs-criminal-defence-solicitors/ https://www.penderlitigation.com/blog/assessing-the-evidence-of-one-accused-against-another-in-cut-throat-defence https://levysolicitors.co.uk/2019/09/09/the-cut-throat-defence/?fbclid=IwAR2EICA8nVlRX7DVN1zYeB3c0PFuNCkfIfIJOib4u6hT-803pTuK70jx9o4
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