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    Evidential Sufficiency Test

    In the evidential test, there must be sufficient evidence to provide a practical possibility of conviction. This implies that an objective and impartial judge, properly guided and acting in accordance with the law, is more probable than not to convict based on the evidence presented. This test is premised upon the probative value of the evidence as assessed and presented by the prosecutor, including any information that might be tendered in evidence. A criminal matter which fails to pass through this stage should not proceed, whether or not it is sensitive.

    The evidential test applies to joint enterprise just like other cases. In this regard, the prosecutor must show in evidence that the accused persons acted as joint principals, or at least one of them assisted, counselled or encouraged the other(s) to commit the actus reus of the offence, with an intention to that effect. Further, it must be proved beyond reasonable doubt that one of the parties assisted his co-offender to commit crime A, foreseeing that he might also commit the actus reus of crime B with the requisite fault element. Another important issue to consider is whether the crime B is fundamentally distinct from what was anticipated or contemplated by the secondary party. The prosecutor must exercise some caution when dealing with spontaneous joint enterprise, and youths and mentally challenged suspects.

    It is instructive to note that the sensitive part in a case involving joint enterprise the accessory’s participation in the joint venture. This involves showing that the accessory by words or impliedly assisted or encouraged the principal, with the necessary mens rea, knowledge and foresight. According to the Crown Prosecution Service in its 2012 Guideline, mere presence in the scene of crime is not sufficient to prove the accessory’s culpability.[1] Unless the prosecution proves the aspect of participation, the evidential test cannot be satisfied on the basis of mere

    [1] Crown Prosecution Service, above note 13, para 35.

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