Law of Evidence.pdf

BURDEN AND STANDARD OF PROOF Art 38.1 provides right to trial in due course of law. O’Leary v. AG 1993 A trial held otherwise than in accordance with burden of proof on prosecution would be prima facie not in due course of law – constitutional status. Note also ECHR art 6(2). Burden of Proof DPP v. DOT 2003 It is not a mere technical rule – it should itself be separately explained, it is a corollary of presumption of innocence. DPP v. Kelly 2000 Must also disprove any defences raised by the accused. Shifting the burden – common law Self defence Hardy v. Ireland 1994 Burden is on the prosecution to negative the defence. Dpp v. Barnes 2007 Obiter comment – where there is a defence of the dwelling and the burglar kills the owner, he has exclusive knowledge of the death, burden shifts to him. Insanity Hardy v. Ireland 1994 Must be established by the accused. S.5(1) Criminal Law Insanity Act 2006 Puts the common law rules in statute – must prove on balance of probabilities. Duress AG v. Whelan 1934 Ct suggested it must be clearly shown that the def.s will was overthrown. Similarly, Denham J. said that the onus of proof for the defence was not met in O’Toole However in DPP v. Dickey 2003 McCracken J. held that the onus on the prosecution is o show that the def. was not acting under duress, and the burden is not on def. Res Ips Loquiter Byrne v. Boadle 1863 Barrell of flour fell – here the occurrence itself was evidence of negligence. It can arise from the fact of an accident. Hanrahan v. Mercke sharpe & Dolme 1988 Where an element of the tort lies or is deemed to lie within the peculiar knowledge of the def – burden shifts. Res ips loquiter will allow the act relied upon to be evidence of the negligence in the absence of proof otherwise from the def. Brennan v. Judge Windle & ors 2003 SC held that the burden shifted, as to prove the service of summons was in the peculiar knowledge – would be unfair to have the app. prove something not in his knowledge. 1 Dpp v. Barnes 2007 Obiter comment – where there is a defence of the dwelling and the burglar kills the owner, he has exclusive knowledge of the death, burden shifts to him. Legislation Diminished responsibility Defence is governed by S.6(1) Insanity act and 6(2) reverses burden. S.24 OATS 1939 O’Leary v. AG 1993 The act stated that finding incriminating documents were evidence of membership unless the contrary is proven. Failed, SC held that firstly, the documents were evidence rather than proof. Second – unless the contrary is proven allowed him to prove otherwise, rather than presume guilt. Left defences open e.g. duress. S4(1) Explosive substances Act 1883 Hardy v. Ireland & Ors 1994 Provided it was a crime to hold explosives unless he can show that he held them for a lawful object. This was acceptable – It merely provide the accused with a defence. The prosecution must still prove beyond a reasonable doubt that they were knowingly in his possession, and he could not prove that he held it for a lawful purpose. It simply provides that proof of a relevant act shall be evidence of the act done – this evidence may still be challenged. Evidential burden of proof Must establish a prima facie case to get the issue before the jury and argued on his behalf. – DPP v. Smyth 2010 DPP v. Forsey 2018 O’Malley J. held that this the provision merely reversed the evidential burden, rather than legal – overturned the HC. The provision stated that where a gift is given – it shall be deemed to have been given and received corruptly as an inducement to or reward for the person. HC said that this required that he show, on balance of probabilities, that he was innocent (thus the burden shifted). The accused is required to demonstrate that there is arising from some piece or pieces of evidence adduced in the case or reasonable doubt as to whether the presumption of corruption is correct. If he succeeds in persuading the jury that such a dead arises, the jury must ask itself whether the prosecution case has dispelled it. He therefore does not need to prove his innocence. Standard of proof Miller v. Min for pensions 1947 Balance of probabilities means more likely than not. Beyond a reasonable doubt does not mean beyond a shadow of a doubt. If it can be dismissed by yes it is possible but not in the least probable then it is proven. DPP v. Donovan 2016 COA noted that where 2 interpretations of the case are open to the jury, they myst choose in favor of acquittal, unless the case is proven beyond a reasonable doubt. Presumptions Accidental Death Harvey v. Ocean Accident and Guarentee company 1905 Where the victim died in water, held that there is a presumption that it was an accident rather than a crime. Presumed to have died accidentally where reason is known – save for suicide. Legitimacy Where a child is born, it is presumed to be the husband’s child unless he was impotent, sterile or had no access to the wife at time of conception. H & Anor v. D 1989 US SC upheld the presumption. 2 Illegitimacy Hertherington v. Hetherington 1887 If a child is conceived after marriage breaks down, presumption of illegitimacy unless it can be be shown they had sex after separation. These were before DNA etc. Marriage Piers v. Piers 1849 HOL held that if 2 people intended to marry, it is presumed that they met all requirements and had capacity to enter, of age and not previously married. Mulhern v. Cleary 1930 Presumed that 2 people are married where they lived together and acted as spouses. Can’t be used where accused of bigamy. Death Chard v. Chard 1955 A person is presumed dead where 7 years have passed with no communication and evert reasonable attempt was made to contact him. M’Mahon v. M’elroy 1869 The rises proving that those who are reasonably expected to hear from him have not. Re Bonis Doherty 1961 Here, his stockbrokers were to one assumed to have heard from him – presumed dead. Omnia Praesumuntur Rita Esse Acta Presumption that a public official has properly performed their duty in the absence of the contrary. It’s the assumption that the peace commissioner did full inquiry before the warrant was proved, rather than assumption that the warrant is valid. 3 UNLAWFULLY OBTAINED EVIDENCE AG v. O’Brien 1965 This started the modern doctrine. Distinguished between mere illegality and deliberate and conscious breach. the constitutional breach should only be admitted in exceptional circumstances – Walsh J. gave the example of destruction of evidence and victim in peril. DPP v. Cullen 1993 There must be a causal nexus between the breach and evidence gathered before exclusion can be considered. Deliberate and Conscious In O’Brien, a mistake was made on the face of the warrant – breached inviolability of the dwelling. This was not a deliberate and conscious breach, so it was a mere illegality. DPP v. Kenny 1990 The warrant was obtained without legal authority. Again confirmed that deliberate and conscious breach would lead to exclusion. However, this referred to the actions of the gardaí rather than the knowledge of the breach – a positive action taken by the garda led to exclusion regardless of whether they had knowledge. Ct explicitly rejected the good faith approach. Finlay CJ held that the Ct has an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned. DPP v. Cash 2007 This case criticised Kenny – Charleton J. held that it focused only on the rights of the accused without respecting the need for social order to be maintained. DPP v. JC 2015 SC set down new rule – held that Kenny was wrongfully decided. 1. Onus remains on prosecution to establish admissibility. Must show either no breach of constitutional rights or that despite the breach, should be included. 2. Where evidence is obtained in a deliberate and conscious breach (now intentional) it ought to be excluded save for exceptional circumstances. 3. Evidence shall not be excluded where the prosecution can show that the breach was inadvertent or derived from subsequent legal developments. 4. Inadvertent does not include negligent or reckless breaches – they shall be excluded save in exceptional circumstances. Intentional Clarke J. stated that the concern was with compliance with rights and must deter from breach. It requires an analysis of the conduct the individual at the coal face, and the senior members involved in a material way. Inadvertence/ subsequent legal developments Investigative agents cannot hide behind an unacceptable lack of knowledge appropriate for the task for the purpose of pleading ignorance. Hardiman distinguished and said that this put a premium on ignorance. It allowed abuse and undermined rights – said rights don’t have meaning. Illegally Obtained evidence Per O’Brien, this involves a balancing exercise. Depends on nature and intention etc. Trivial and technical, or was it a serious invasion of rights? Provided that they act legally, then trickery is not ground for exclusion. Here, there was no evidence of treachery – just error on the face. In JC, Clarke J. held that illegal evidence should not be readily admitted where it arises from gross negligence or recklessly – must examine the circumstances. DPP v. Murphy COA allowed dna evidence to be retained for over the statutory period as it was lawfully obtained initially. judge used discretion. 4 EU Law In the Digital Rights Case Ireland, the CJEU noted a breach where a dispute involved law which allowed for retention of data without justification. – DWYER case has sent a preliminary reference. 5 HEARSAY This is guaranteed to come up (Usually q1). Original evidence: - Where statement was made is fact in issue – defamation. - To establish ability to communicate. - To establish state of mind of the recipient (Subramanian) - Where words have legal effect – I do in marriage - To establish its falsity - As circumstantial evidence DPP v. Morgan (brothel case). Cullen v. Clarke 1961 The rule against hearsay precludes out of court statements to prove the truth of the facts which they assert. Myers v. DPP 1965 This can include oral or written – but not generated by a machine (R v. Spirl 1990) R v. Kearley 1992 HOL held that implied statements are also hearsay. Here, the police searched a flat and 10 times they answered the door asking for drugs. The express statement implied that they had purchased drugs there before. For the police to testify as to what was said, in order to prove the truth of what was implied, would breach the rule. Common Law Exceptions Confessions & Admissions A concession is clearly a non-testimonial statement made by the accused to a person in authority which the accused inculpates himself. An admission is to someone else. They are reliable as they are not in the accused’s interest – exception. Res Gestae This where a statement is made contemporaneous with the event sich that it has become part of the event itself. McGrath describes it as a statement concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of concoction, distortion or error can be disregarded. 3 types: 1. Made by participant or observer of an act. 2. Spontaneous statements explaining an act. 3. Spontaneous statements to prove state of mind. 4. Spontaneous statements explaining physical sensation. Witness/victim Teper v. R 1952 The rule was traditionally very rigid – needed absolute contemporaneity. Ratten v. R 1972 HOL reduced it – approximate is fine but the real test is whether there is any real risk of fabrication. R v. Andrews 1987 1. Primary question is can the possibility of concoction be disregarded. 2. To assess the first, ask was the event so unusual or startling as to dominate the thoughts of the victim, so that his utterance was an immediate reaction. 3. It must be so closely associated with the event that the mind was still dominated by it. 4. Special circumstances as to malice to consider whether it is fabricated. 5. Special circumstances giving rise to error – eyesight, difficult circumstances etc. R v. Carnall 1995 A time of 30 minutes was acceptable – the situation dominated his thoughts so much that what he said was unaffected by ex post facto reasoning or fabrication. 6 DPP v. Lonergan 2009 The deceased said the bastard stabbed me etc – 10-15 mins after the event. Irish ct adopted the approximate rule and examined fabrication. Held that where it is clear that no opportunity for fabrication arose, no point excluding it on an arbitrary basis. Contemporaneous conduct Cullen v. Clarke 1963 SC permitted letter from the employers who rejected him to prove the truth of what was stated – he suffered a previous injury. He had to show that he was trying to get jobs and the reason for refusal was that he was injured. Thus, the letters saying that that’s why they wouldn’t hire him were acceptable. State of mind Cullen v. Clarke 1963 Confined to cases where such words are spontaneous and unrehearsed expression of contemporary feelings, which reveal, rather than declare, a condition of the mind. This can be used to prove mens rea at time of the act. Additionally, can be used as circumstantial evidence to show that existed at sone stage in the future. DPP v. Murphy 2003 Such a statement is admissible if having regard to the time it was given, it can be regarded as spontaneous and unrehearsed expression of contemporary feelings. Here, the accused later admitted to the father that he told them he did it. Hardmian J said this did not form part of the event as he said it after the fire. Physical Sensation This only shows what the sensation was – not its cause. Aveson v. Lord Kinard & ors 1805 Evidence the ceased made a statement saying she was in bad health was admissible, even though the statement was made the day the policy was taken out. Dying declarations R v. Woodcock 1789 This is admitted where: a. Concerned identity of the killer b. Deceased was competent c. Had a hopeless and settled expectation of death Creates an obligation equal to death. In this case, she was told she was gravely ill, but not that she was dying – not admitted. Fennell notes it must be imminent, but not immediate. Onus on party admitting the evidence. Against Pecuniary or proprietary interest Deceased. R v. Rogers 1995 Owing of a debt was admitted. Unlikely the deceased would make a statement against themselves where untrue. R v. Blastlad 1986 Doesn’t extend to criminal liability. This has been criticised. Lalor v. Lalor 1879 Admissible where i. Deceased had personal knowledge of the contents of the statement ii. Knew the statement was against his interest. Pedigree - deceased Butler v. Mountgarrett 1859 Mist be made by blood relations and before the dispute arose. Healy notes that this rest son the fact that family members speak truthfully to each other and have nothing to gain from a lie. 7 Content of a will - deceased Sudgen v. Lord Saint Leonards 1876 Where will is destroyed, evidence of a statement made before and after the will may be allowed to show contents. Made in course of duty - deceased Harris v. Lambert 1932 Solicitors notes were taken during interview and admitted. R v. O’Mealy 1952 Must be fact – not opinion. Related to performance of a deceased’s duty under a duty to record and recorded contemporaneously with the event. He must have personal knowledge of the facts contained within. Public Documents Sturla & ors v. Freccia & ors 1880 A document that is made by a public officer for the purpose of public making use of it and to be able to refer to it. Officer must have been under judicial/quasi-judicial duty to enquire, have personal knowledge of facts, accessible to the public. Legislative Exceptions Criminal Evidence Act 1992 S.5(1) For criminal trials, can admit documents created in the ordinary course of business. Notice must be given that is reasonable and practical. - Supplied by a person (whether or not he so compiled it and is identifiable) who had or may reasonably be supposed to have had personal knowledge of the matters. - Where illegible, has been reproduced to be legible in the course of operations of the reproduction system. S.5(3) – exceptions: - privileged information barred from disclosure - information supplied by someone who is not compellable. S.8 Prosecution must weigh up whether it should be admitted in the interests of justice - Reliable or accuracy - Authenticity can be determined - Whether it is possible to contradict the evidence so as to lead to unfairness to any accused. S.30 Authenticated copies may be used. Children’s Act 1997 Applies to civil proceedings concerning welfare of the child or adult with mental disability who cant live independently. S.23(1) An otherwise hearsay statement of a child is admissible where the court considers that a. Child is unable to give evidence by reason of their age; b. The giving of oral evidence by the child, either in person or via live link, would not be in the interest of the child. S.23(2) and (b) Court has discretion to refuse evidence to eb admitted where it feels with regard to all circumstances it involves a risk that the admission will result in unfairness to any party. S.23(3) Notice must be given that is reasonable and practical. S.24(1) Regard must be had to the circumstances of the evidence which any inference can be drawn as to accuracy or otherwise. 8 Eastern Health Board v. MK SC held that in wardship proceedings, hearsay is never rigidly applied, once the ct is satisfied of the necessity. Applies where child is not old enough to give sworn statements and giving evidence would be too traumatic. Proceeds of crime act S.8 Opinion of a guard or authorised officer to the effect i. The respondent is in possession of specific property that is directly or indirectly proceeds of crime; ii. The specified property is in his possession was obtained with or in connection with property that is director or indirectly the proceeds of crime And the property in question is valued at more than €10,000. Gilligan v. CAB 1997 Held that this evidence requires corroboration to protect constitutional justice. Testimony in other legal proceedings a. Declarant unavailable b. Previous proceedings between same parties c. Issue must be substantially the same in both proceedings d. Parties against whom it is given had the option to challenge it in previous proceedings. Bail DPP v. McGinley 1998 SC held that the defs are entitled to cross examine witness in bail – hearsay rule applies fully, however may be lessened where there is a specific reason (Protection of police officer etc). Social media DPP v. Moran 2018 Treaty between USA and Ireland meant that evidence could be adduced provided records were attested. Social media texts were allowed in despite being hearsay as they were properly attested and were deemed to be auto generated. Problem areas - Emails: presumably hearsay but can be admissible to show state of mind of the accused. Seen in DPP v. O’Reilly to show state of mind concerning breakdown of marriage. - Texts: presumably hearsay but in DPP v. Timmons they were evidence of conspiracy. - CCTV: Real evidence per eastern Health Board v. MK - Documents: May be real evidence or or original evidence, or may be hearsay depending on purpose. If its adduced to show physical condition – its real. If used to show truth it contains, then hearsay. 9 CORROBORATION AG v. Williams 1940 – approved R v. Baskerville 1918 Corroborative evidence has 2 parts: 1. Independent of the evidence to be corroborated in that its source is different from that of the evidence to be corroborated and 2. Implicates the accused in the commission of the crime with which he is charged, in that it is evidence of a fact in issue. IE Evidence of the ingredient of the crime or undermines defence. Independence DPP v. Christie 1914 A witness cannot be his own corroborator. Implication It is not corroborative unless it implicates the accused – must show ingredients of the crime. DPP v. D 1993 Trial judge erred in saying that medical evidence was corroboration as it showed the complainant was interfered with, but not by the person charged. Examples R v. Hill 1988 The cumulative effect of the evidence may amount to corroboration. R v. Redpath 1962 COA held that in exceptional circumstances, the evidence that the complainant was in distress may be evidence. But fabricated distress is a risk. This was not the case here as complainant was only 7, accused left the moor shortly after, she was not about to make a complaint and unaware she was being watched. Also noted that evidence of bruises are admitted, jury must be satisfied that they weren’t self-inflicted, or it wasn’t intentionally rough sex etc. DPP v. Reid 1993 Complainant alleged she was raped in a room with tv on loud so that she wasn’t heard screaming. Def said she consented. He was arrested by the garda who found him in the room with tv on loudly, and he said he was home all day. Her parents noted her distress and blood on her clothes. Medical evidence showed damage to genitals and this consisted with use of force. All of this was independent of the complainant together tended to confirm her account. R v. Lucas 1981 A lie may be corroboration if i. Deliberate ii. Relates to a material issue iii. Proved by evidence other than an accomplice – ie admission or an independent source iv. The motive for the lie was s realisation of guilt and fear of truth. Edwards v. R 1993 Trial judge reminded the jury that there are many reasons to lie, not just guilt. Inferences from silence These are corroboration Criminal Justice act 1984 as amended SS 18,19, 19A Inference may be drawn from failure to - Account for any object, substance, or mark, or any mark on any such object that was in 1: on a person, 2: in or on his clothing, 3:otherwise in his possession, or 4: any place in which he was during a specified period, or the condition of his clothing or footwear. - Account for his presence at a particular place at or about the time of the offense is alleged to have been committed - Mention any fact relied on in his defence that clearly calls for an explanation. 10 This must occur where the accused is asked by a guard to render such an account i. Before he is charged ii. When he is being charged iii. When he is being informed by a guard that he might be prosecuted for the offence. Guard must also reasonably believe that the matter may be attributable to the accused’s participation. Safeguards a. The fact must have clearly called for an explanation when questioned, charged, or informed. b. The accused must have been informed in ordinary language what the effect of a failure to account would be c. Must have been informed of right to legal advice, and unless expressly waived, was given reasonable opportunity to consult with a solicitor d. Questioning must have been recorded by electronic or similar means, or the accused consented in writing to no recording. DPP v. Wilson 2017 Inferences may only be drawn for the crimes which he was charged for – not anything else. OATS 1998 S.2 Applies to membership of an unlawful organisation. Inferences may be drawn from failing to answer a question material to the offense. Includes whereabouts. Only inferences where it was asked before charged. More adverse if later response – better to be early. This has the same safeguards set out above. Mandatory Corroboration Treason Act 1939 SS 1 & 2 require corroboration, either for treason or for harbouring, encouraging or comforting persons guilty of treason. Road Traffic Act 1961 S.105 Cant be convicted solely on evidence from a witness as to speed. DPP v. Conaughton This only applies to evidence of exact speed – not where he gives general statement saying he was driving fast. Perjury R v. Parke 1842 Uncorroborated evidence of one witness is not enough for a conviction. R v. Cooper 2010 This is an absolute prohibition. No exceptions. Notes that something in addition to the witness is required. Mandatory Warning Accomplice evidence AG v. Levison 1932 Must give corroboration warning where accomplice evidence is given. Trial judge must warn the jury of the dangers of convicting solely on this evidence, and then indicate that the if they are satisfied beyond a reasonable doubt, then they are free to convict. AG v. Carney & Anor 1955 SC held that even a slight degree of complicity in the crime charged will suffice for definition. Where it is clear they are an accomplice, an unconditional warning is given. Where it is unclear, then a conditional warning is given and leave to the jury to decide whether they’re an accomplice. 11 Witness protection programme DPP v. Ward 2002 Veronica Guerin murder trial. Super grass evidence was admitted. CCA overturned the conviction – didn’t set down rule but noted the danger as he was a known liar and gained benefits from him and his family. DPP v. Gilligan SC held that such evidence should be viewed with caution. The receipt of benefit may mean the weight to be given is reduced. Needs warning but just jury is free to convict. We therefore need warning for accomplice, super grass and a witness who is not an accomplice but is on the protection programme. Confessions/Admissions S.10(1) Criminal procedure act 1993 Judge must give warning – need not have any particular words or form. They must be advised to have due regard to the risks. DPP v. Connolly 2003 Due regard means not only give a warning and explain what corroboration means, but also explain why they must look for it and sow it is not always there. Discretionary Warning Here, judge can decide. They are often sought. Child testimony S.28(1) & 28(2) Criminal evidence act 1992 Abolished the mandatory requirement – gave the discretion. No particular words needed. Sexual offences involving testimony of the complainant DPP v. Reid 1993 Needed warning traditionally – believed to be dangerous to convict without it. S.7 Criminal Law Rape Amendment Act 1990 Abolished this – discretion lies with judge. However, it continued frequently even where not needed. 12 VISUAL IDENTIFICATION EVIDENCE This is visual identification of the accused by a witness during the witness’s testimony. The credibility of the testimony can be bolstered by evidence that the witness previously visually identified the culprit. The evidence that the witness previously identified the witness is an exception to the rule against narrative. S.18(b) Criminal evidence Act 1992 Where evidence is given through a live television link then i. Where evidence is given that the accused was known to the witness before the date on which the offence alleged to have been committed, the witness shall not be required to identify the accused at the trial of the offence, unless the ct believes it in the interests of justice to do so. ii. In any other case, evidence by a person other than the witness that the witness identified the accused at an identification parade as being the offender shall be admissible as evidence that the accused was so identified. Otherwise, witness must identify them in ct. S.12 1992 Act The section applies to a i. Sexual offence ii. Offence involving the use or threat of violence against a person iii. Incitement, conspiracy or attempt to commit such an offence iv. Aiding, abetting, procuring or counselling the commission of any such offence v. Offence under s3 child trafficking and pornography act Casey Warning AG v. Casey 1963 Kingsmill Moore J. set down the requirement that a warning must be given where correctness of an identification is challenged. It is a minimum warning given in any case which depends on visual identification. The rationale is that juries should be warned that if there verdict as to guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been instances where responsible witnesses and where honesty was not in question and opportunity had been adequate has given rise to erroneous convictions. They should be careful to accept this ID as correct – but are still free to convict if satisfied beyond a reasonable doubt. DPP v. Goulding 1964 Given even where multiple IDs DPP v. Maguire 1995 Given where they are certain and there is other evidence. AG v. O’brien 1969 Over and above the minimum required, the actual terms of the warning must be conditioned by the evidence in the case. DPP v. Christie 2005 Trial judge erred in nor warning about risk of warning about inter-racial identification. Should have reminded jury to weigh up the white woman’s assertion of her ability to identify one black man from another. If visual identification is admitted, the jury must be warning of the mistaken recognition of the past. DPP v. Smith 1999 For visual recognition evidence, a lesser degree is required (but still required). Pre-Trial identification The way in which a witness is identified the accused may affect the Casey warning. The less formal, the greater need for caution. 13 Formal This is the most reliable, it takes place under controlled circumstances at a parade. DPP v. O’Reilly 1990 CAC noted that in formal identification, the accused had his lawyer are present, can advise and object if needs be. Also ct gets report. Conversely however, accused can have difficulties challenging it. Also noted there are circumstances where a parade are not appropriate – can’t get similar people etc. May also be redundant where visual recognition. Warning still needed. Where they refuse, they may need to face the consequences. No automatic right also. AG v. Martin 1956 There is no rule of law requiring a formal id. Sometimes, other forms may be more appropriate. It may be limited e.g. running after chase, limited opportunity etc. Depends on factors. Informal DPP v. Fagan 1974 Witness admitted in cross exam that there was a strong possibility that he made a mistake due to gap in time. CCA quashed conviction as the full circumstances of the identification relied upon was not put to the jury. Court was of the view that the trial judge should have pointed out that the identification was informal to jury. DPP v. McDermott 1991 Trial judge should explain the difference in value between formal and non-formal re control and credibility. Need to also instruct jury about the difference and the superior value of formal. DPP v. LEE 2004 CCA held that because of the inherent danger of relying solely on visual ID, there was an onus the gardai to ensure it was done in the most reasonably reliable way – here, that was parade. Ct held whether informal ID should be admitted is a matter for the judge to decide, balancing rights of accused and the public, as well as balance probative v. prejudicial. Jury should be reminded of what reason the prosecution gave as to lack of formal – contrast that with what actually happened. Dock ID DPP v,. Cooney Keane J. in the SC noted that it has long since been considered unsatisfactory. It is of limited probative value and vert prejudicial. Only permissible where other forms are not possible – lack of co-op etc. But strong warning needed. Photographs DPP v. Rapple 1999 Witness gave description, then identified the accused form the photo. A week later he was brought in the car to identify the accused. CCA refused appeal. i. Where the victim does not know the person, they should be shown photographs matching the description as well as someone who doesn’t know the accused, based on the description. If the witness recognises the accused, then there is a suspect. ii. Here, the suspect refused so gardai had to use informal procedures. They did so in a fair and reasonable manner. iii. Use of photos is necessary to move from description to suspect. The fact there was no parade doesn’t alter this situation. iv. Gardai must behave with exemplary fairness, remembering that the state’s only focus is conviction of the correct person. v. There are 2 separate and distinct situations where photos are used. The first is where they get a suspect, second is where a photo is shown, then a parade happens. Second is unacceptable. vi. Jury was given proper warning. 14 CCTV Footage DPP v. Maguire 3 situations where it can be used: 1. Where footage is used to determine whether the witness had reasonable opportunity to identify the accused. Footage is used to support the witness – not identify the accused. 2. Where footage is used to allow people who know the accused to identify him. They should explain how they know him and what factors make them believe it is him. Jury uses CCTV to ascertain credibility of the witness. 3. Where its used as evidence to identify the accused, even though it is unsupported, It may only be used where the probative value outweighs the prejudicial effect. A warning may also be given as the danger of relying on footage, and that there may be just a strong resemblance. DPP v. Synchulex 2018 Birmingham P. held that world has moved on a great deal and that often high enough quality cctv is available. In appropriate cases, this can be used as real evidence. The jury can satisfy themselves where its high in quality and definition. Distinguished between out of ct identification and CCTV – the former has inherent risk and needs a warning; high quality CCTV does not bring these risks. 15 OPINION EVIDENCE Typically, opinions aren’t allowed as witnesses are only to give facts – the jury forms an opinion. Ultimate issue rule An opinion may not be given on an ultimate issue – fact in issue. R v. Davies 1962 i. A non-expert witness may testify that he observed the accused consume alcohol, but can’t testify that the accused was unfit to drive ii. An expert may testify about the extent to which the accused was drunk, but not testify that the accused was unable to drive due to such drunkenness. Non- expert opinion evidence AG (Ruddy) v. Kenny 1960 Prosecution proposed to ask the witness if they thought the accused was drunk and incapable of driving. SC upheld the HC finding that drunkenness is so common that it does not require an expert to diagnose it. SC held that there are innumerable incidents of everyday life upon which an ordinary person can express a wilful opining and one which ought to be admitted. DPP v. McEvoy 2018 Garda was allowed to testify to explain what the phrase got a stripe meant. He was simply explaining the term in colloquial context as he understood it. Expert opinion evidence S.34 Criminal Procedure Act 2010 An accused must seek and obtain permission from the trial judge to adduce expert testimony. Expert here examine the evidence and gives his opinion as to what it means. AG (Ruddy) v. Kenny 1960 Defined an expert witness as qualified by experience, training and knowledge. S.34(9) A person who appears to the ct to possess the appropriate qualification or experience about the matter to which the evidence relates. R v. Silverlock 1894 Solicitor gave evidence as to handwriting as he had experience – no need for formal qualifications. R v. Turner 1975 It will not be admissible if the ct believes that the jury is capable of understanding it themselves. Simply because he has experience or qualifications does not mean he is more helpful than the jury themselves. R v. Robb 1991 The proposed field of science must be sufficient well established to pass the ordinary test of relevance and reliability. Established science and processions pose no issue – the field must be one where expertise can exist. The essential question is whether the study and experience will give the witness an authority, and whether they have the requisite knowledge and experience. Can’t be a soothsayer, witch doctor or amateur psychologist. Trial judge must also direct jury that they are not bound to accept evidence – the issue remains with them to decide. R v. Millar 1989 Canada case Good example. Judge state that the opinion evidence is not binding upon you if it goes against your judgement … you are the only and sole judges of the facts. R v. West 2006 An expert should not usurp the jury’s fact-finding role. Here, expert used emotive and colourful language when describing the cctv. He went beyond the role – no appeal however as trial judge warned appropriately. 16 Natural Justicia Compania Naviera SA v. Prudential Assurance co. ltd 1993 1. Expert evidence presented to the court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation 2. Expert witness should provide independent assistance to the ct by way of objective, unbiased opinion in relation to the matter which is in his expertise. 3. An expert witness should state the facts or assumptions upon which is opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. 4. An expert witness should make it clear when a question or issue falls outside his expertise. 5. If opinion is not properly researched due to what he considers insufficient data, this must be disclosed. Similarly where he can’t consider the report the truth, whole truth and nothing but the truth without qualification, this must be disclosed. 6. If after providing the report, he changes his view on a material matter, this must be disclosed to other side and the court. 7. All information relied upon should be disclosed at same time as the report. This has not been considered in Ireland, but in Fitzpatrick v. DPP 1997, psychologist omitted to report the fact that the victim was abused by family and the effect this would have on the making of the complaint. Where give evidence in a professional capacity in an expert witness, he owes the duty to ascertain all surrounding facts and to give that evidence in the context of those facts, whether they support the proposition which he is, asked to put forward or not. DPP v. Allen 2003 Failing to elicit in either direct or cross examination the actual statistics concerning brothers had the potential to confuse or mislead the jury into believing that even among brothers, an increased possibility starting from a base of one in one thousand million would still be so improbable they could disregard it. DPP v. Ryan 2016 Birmingham j held that psychologist evidence as to credibility is not acceptable, save for a very a small number of exceptional circumstances – it is within the experience of the jury and can’t be taken away. Trial by jury, not expert. R v. Turner The fact that an expert relies upon must disclosed to the Ct., they must also be proven. Automatism S. 5(1) and 6 Criminal Law Insanity Act Needed for insanity and diminished responsibility. Also often used for non-insane automatism. Provocation Generally inadmissible. R v. Turner 1975 It is for the jury to determine whether the accused fell into the rage – they have the experience to determine the emotions of the accused. DPP v. Kehoe 1992 Approved this – it is confined to insanity. An exception is for battered wives’ syndrome. Hypnosis NC v. DPP 2001 This evidence is acceptable, but the hypnotist is required to testify as to the procedure. The UK Home office released guidelines in 1987 stating the before and after should be video recorded, and then needs any additional information arising from the session recorded in a statement within 24 hours. Details of the session must be disclosed. S.3(2) OATS 1972 A guard not below chief supt. Can give evidence of his belief that the accused was a member of an unlawful organisation at the material time. 17 S.8 Proceeds of crime Act 1996 Where a guard or authorised officer states during the proceedings for such an order that i. The respondent is in possession or control of specific property and that the property constitutes directly or indirectly the proceeds of crime. ii. The respondent is in possession of or control of specific property and that property was acquired, in whole or in part with property that constitutes directly or indirectly the proceeds of crime. And the property is valued over 10,000. If the ct is satisfied that there is reasonable grounds for this belief, it may be admitted in evidence. Domestic Violence Act 1996 S.3(4) Barring order can’t be placed in respect of a place where the respondent resides, if the respondent has a legal beneficial interest in it, and 1: the app has no interest in it or ii lower interest. S.3(4) b Provides that the belief of the app that their interest is greater shall be evidence. S.4(1) Competitions Amendment Act 1996 Expert evidence for breach of competition rules – this is because its so complicated etc. S.71B CJ Act 2006 Opinion of former garda is admissible as to existence of a criminal organisation. 18 BAD CHARACTER EVIDENCE Makin & anor. V. AG for New South Wales 1894 Here, couple were accused of killing their adoptive son and burying him in back garden – child was found in back garden. Evidence of other infants being received on like terms and that other bodies were found. This was bad character evidence. Was admitted and 2 principles were set down. First principle It is not acceptable for the prosecution to adduce evidence to show that the accused had been guilty of criminal act other than those covered by the indictment, for the purposes of leading to the conclusion that the accused is a person likely to, from his criminal conduct or character, to have committed the offence for which he is being tried. Boardman v. DPP 1975 HOL explained the first rule provides that when there is nothing to connect the accused with a particular crime except the bad character or similar crime committed in the past, the probative value is nil and the evidence is rejected on that count. Unless there is a statutory provision to the contrary, the evidence is to be excluded because of its prejudicial effect may be more powerful than probative value – endangers fair trial. Second principle On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before ethe jury, and it may be so relevant: i. If it bears upon the question whether the acts alleged to constitute the crime charged were designed or accidental; ii. To rebut a defence which could otherwise be open to the accused. Boardman v. DPP 1975 Where one principle applies, the other does not. DPP v. Morgan 2010 It is impermissible to decide on the guilt or innocence of the accused by a reasoning process based on bad character. Said evidence may however be adduced to show the accused is of bad character, for the purpose of tending to provide something that is in issue in the case. Thus in Makin, the evidence was admissible for the purpose of proving that the infant’s death was an accident, and for rebutting a defence of death by natural causes. AG v. Kirwan 1943 Accused had spent time in prison and had learned to be a butcher. After his release, his brother was murdered and disassembled by someone who had butcher experience. He was also found with 200 pounds. The evidence of time in prison was adduced to show he was the murdered, and that the money was not his. R v. Smith 1915 Def. charged with Murder of his wife. He claimed it was an accident. Evidence was admitted that this had happened to 2 previous wives. R v. Sims 1946 Here, the accused was charged with multiple counts of indecent assault. All trials were allowed to go at the same time, rather than separately. Jury therefore heard the testimony of all victims. Given that the acts bore a striking resemblance, that is a special feature sufficient to justify connecting the accused with the crime so admissible. Also, of higher probative value as unlikely to have multiple lies (in the absence of conspiracy). R v. Strafford 1952 Def. prosecuted for murder of a woman who had been strangled – evidence that he had done this to 2 other women was admitted. R v. Ludlow 1971 App was charged with 2 counts of robbery from local pubs. Held that there was a sufficient nexus between them to make them a serious offence of similar character. Judge had no duty to direct separate trials, unless it believed there was sa special feature which would make it prejudicial, and separate trials are required in the interests of justice. 19 DPP v. Boardman 1975 HOL moved away from categorical approach. Evidence one count of buggery was admissible in another due to striking similarity. Held it was not possible to outline all instances where similar fact evidence is admissible. It must be based on general principles – not categories or catchphrases, and the general principle was relevance. It also requires significant probative value. DPP v. P 1991 - HOL It is not appropriate to single out striking similarities as an essential element in every case in allowing evidence of an offence against one victim be heard in connection with an allegation against another. The essential fact in Boardman is that its probative force in support of the allegation that an accused committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial. Whilst probative force can come from striking similarity, cant be restricted to this. In this case, the evidence of both girls described a prolonged course of conduct between them; use of force; general domination with threats unless they were silent; evidence of payment of abortions. These circumstances together were taken to have strong probative force to the evidence of each of the girls. This was sufficient to make it just to admit it, notwithstanding the prejudicial effect. Therefore: 1. Similar fact evidence in such a case is admissible if the similarity is sufficiently strong, or there is other sufficient relationship believes the in the evidence of the young children of the family and the abused charged, that the evidence, if accepted strongly supports the truth of that charge that it is fair to admit it, notwithstanding its prejudicial effect. 2. There is no need for a separate trial for 2 sexual offences where there is no striking similarity, provided there is a relationship between the offence of the kind just described. B v. DPP 1997 HC considered a similar case of child abuse; accepted that striking similarity was just one element – accepted that the key fact is probative value. Noted that P had independent testimony for the girls, and such a coincidence is relevant. However, the mere fact of multiple accounts will not lead to automatic admission. DPP v. BK 2000 This is the seminal judgement, examining both Boardman and P. Multiple counts of sexual abuse of children in a care home. Accused appealed his conviction, arguing that they should have been tried separately. For evidence to be admissible on different counts, the probative value must outweigh the prejudicial value. Here, judge held that system evidence is admissible, and that similar fact evidence is inadmissible. Similar fact evidence was defined as: Evidence that the accused committed a crime on one occassiaion. This evidence is inadmissible to prove he has a propensity to commit the crime or will do it again. System evidence was defined as: Evidence of the manner in which a particular accused has a tendency to commit a crime. This may be admissible for the purposes of showing that the same act was performed on another occasion by the same person with the same intent. If there is a similarlity, this may be used to allow evidence of the first act to prove the second. The principles are: a. The rules of evidence should not be allowed to affect common sense. b. Where probative value outweights the prejudicial effect, it will be admitted. c. Categories of cases where evidence can be admitted is not closed. d. Such evidence is admitted in two types of cases: i. To establish that the same person committed each offence because o fteh particular features common to each other ii. Where the charges are against one person only, to establish the offences were committed. There are therefore 2 types: 1. Firstly, where there is evidence that the accused has a previous conviction or committed a crime and the circumstances are similar to the arrest current alleged crime to prove that both offences were committed by the same person 20 2. Secondly, where there is inherent improbability of server persons making up exactly similar stories and it shows a practice which would rebut accident, innocent explanation or denial. This allows all charges to be examined at once. DPP v. McNeill 2011 SC expressed doubt on the balancing test. DPP v. Shannon 2016 COA refused to accept that BK is the law – as the SC doubted the balancing test. Thus McGrath on evidence suggests that the following now exist: a. Misconduct evidence is not admissible evidence to invite the jury to infer that the accused is likely to be predisposed to crime. b. Misconduct evidence is admissible where i. It is relevant to an sufficiently probative of an issue in the proceedings ii. Its admission is necessary and iii. There is sufficient proof of the misconduct. c. A trial judge has discretion to exclude where its probative value is outweighed by its prejudicial effect. d. Trial judge should warn jury as to what the listed purpose of the evidence is. Evidence as to the background to the act R v. Bond 1906 Evidence is necessarily admissible to as to acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances. DPP v. McNeill 2011 Background evidence which means evidence which is relevant and necessary to a fact to be determined by the jury. It may be admitted to render comprehensible the relationship between the complainant and the accused. It arises where if no background evidence was admitted, the jury would have evidence that was incomprehensible and incomplete. This means that the fact that the accused previously committed a crime cant be excluded on this ground. DPP v. Power 2018 Background evidence was admitted to show the accused sold the deceased drugs and had stabbed them previously, as it showed what was a genesis of unhappy events. For the drug dealing, it was central as it was relevant to the relationship between the parties, how the def knew where he was and the alleged animus. 21 DPP v. Clement Limen 2021 This is the definitive test: Supreme Court set down this current test. UPDATED ALL THE ABOVE AND CONFINED IT TO THIS TEST. In this jurisdiction the principles relating to the admission of evidence that the accused person committed offences other than those charged in the indictment are those established in Makin, Joyce and Kirwan. Those principles may be summarised as follows:- i) The court of trial must not permit such evidence to be introduced for the purpose of leading the jury to believe that the accused is likely, by reason of his or her criminal conduct or character, to have committed the crime in respect of which he is charged. “Purpose” in this context does not refer solely to the subjective intent of the prosecutor, but is to be understood as including the objectively likely impact of the evidence. In other words, it would not be acceptable to admit the evidence on the basis, for example, that it might serve to rebut some theoretically available but practically unlikely defence. ii) Evidence may be adduced, despite the fact that it shows the commission of other crimes, if it is relevant to an issue of fact that has to be determined by the jury. It will be relevant if it has probative value in relation to that issue. The types of “issue” that may be in question include any defence that may realistically be relied upon (which may relate to whether the actions of the accused were intentional, innocent or accidental). The evidence may also be relevant, depending on the facts, where the accused simply asserts that the complainant's evidence is untrue. iii) As a separate consideration, evidence may be given of criminal behaviour if it is so connected with the offence charged as to form part of one continuous transaction, so that evidence of that behaviour is either necessary to the narrative in relation to the offence charged or demonstrates the nature of that offence (by, for example, demonstrating a motive for the offence). iv) The trial judge may in any case, in the exercise of his or her discretion, refuse to admit evidence that is strictly speaking relevant, if he or she considers that the evidence, if admitted, would probably have a prejudicial effect on the minds of the jury out of proportion to its true evidential value. It seems clear that over the intervening decades the concept of “similar fact” evidence has at times been found unclear and unsatisfactory. This may be due to a tendency, noticeable in many areas of law, to attempt to categorise potential fact scenarios and to draw “bright line” rules. This tendency can often result in increasingly artificial distinctions, as seems to have happened with the Sims/ Boardman line of authority. An insistence on “striking similarity” between the acts alleged against the accused overshadowed the underlying, consistent nature of the factual circumstances and the relationship between complainants and accused. Thus, the English Court of Appeal in P. had concluded that the convictions had to be quashed because it could not find similarities that went beyond what was referred to in Boardman as “the incestuous father's ‘stock in trade’”. Here, the Court of Criminal Appeal in B.K. found the difference between assaults in a dormitory and assaults in a caravan to be significant to the point of invalidating the convictions. I would hold that this is a mistaken approach. 22 Undermining the accused’s reliability in testimony Criminal Justice Evidence act 1924 Allowed the accused to testify. S.1(e) Allows the prosecution to ask any question that may incriminate the accused. S.1(f) Provides a shield for the accused against any questions which tend to show that i. He has been convicted of or been charged with any offence other than that wherewith he is charged or ii. He is of bad character. Jones v. DPP 1962 Tends to show must mean reveal for the first time. Accused here admitted to being in trouble with the police before and used a prostitute as an alibi. Prosecution were allowed to question him on his bad character and past convictions. Exceptions: 1.f i The proof that he has committed or been convicted of such other offence is admissible evidence to show he is guilty of the offence ii He has personally or by his advocate, ask questions of any witness with a view to establish his own good character, or has given evidence of his own good character or the nature of the defense is to involve imputations on the character of the complainant or prosecution witness. iii He has given evidence against any other person charged with the offence a. The person personally or by their advocate, ask questions of any witness for the purpose of making, or the conduct of the defense is such as to involve imputations on the character of a person in respect of whom the offence was alleged to have been committed and who is deceased or in capitated as to be unable to give evidence. S.1A Where a person charged with an offence intends to adduce evidence, personally or by the person’s advocate, of a witness, including the person, that would involve imputations on the character of a prosecution witness or a person in respect of whom the offence is alleged to have been committed and who is either deceased or so incapacitated as to be unable to give evidence, or evidence of the good character of the person— (a) the person may do so only if he or she— (i) has given, either personally or by his or her advocate, at least 7 days’ notice to the prosecution of that intention, or (ii) has applied to the court, citing the reasons why it is not possible to give the notice, and been granted leave to do so, and (b) notwithstanding section 1(f), the person may be called as a witness and be asked, and the prosecution may ask any other witness, questions that— (i) would show that the person has been convicted of any offence other than the one wherewith he or she is then charged, or is of bad character, or (ii) would show that the person in respect of whom the offence was alleged to have been committed is of good character.”. Good character This does not mean innocence – can ask questions that establish innocence or seek to adduce evidence of innocence. R v. Dunkley 1926 It means good disposition or reputation. 23 R v. Redd 1922 If a witness/accused spontaneously adduces evidence of good character ie without being asked) does not lose shield. DPP v. Murphy 2020 Def. appealed against conviction. During trial his counsel asked witness to confirm his statement – that he was a good neighbour and a gentle giant – lost shield. COA held that by adducing evidence that he was of good character, prosecution was entitled to prove that he was not a gentle giant, but in fact a controlling man. Imputations AG v. O’Shea 1931 This case involved rigorous denial of allegations, Kennedy CJ held that testing of the witness’ accuracy, however severe, is not conduct which involved imputations of character. Otherwise, def would aways be in peril of being exposed. AG v. Coleman 1945 Alleged that he accused performing legal abortion, he claimed that the couple had the expertise to do with themselves that they had Conspire to convict him. Married to defeat Justice an use contraceptives against God's teachings on the father. Did the abortion this went beyond the defense, as it did not necessitate the allegation as at most, if proven, would not amount to defense. DPP v. McGrail 1990 Def denied the claim he showed the gardai where the guns were – trial judge took this as an accusation of perjury and lost his shield. COA rejected this and overturned. 1. Fair procedures require that the accused be given an opportunity to make a case. A trial is an imputation on the accused, and he has to be allowed to make imputations so as not to be hampered. 2. Rape exception is analogous to this – it was putting victims’ character in issue. Noted it would be different if he suggested fabricating evidence was police practice. 3. Allegations reasonably necessary to establish the defence or prosecution case are permissible. 4. Ct has overriding discretion to prevent unfair cross examination 5. England and wales approach should not be followed as it is incompatible with fair procedures. Zuckerman notes it is a difference between moral and probate credibility. S. 1 f iii co-accused The loss of shield goes to credibility, not guilt – jury must be warned. AG v. Joyce Only applies where the accused gives evidence adverse to the co-accused. Applies where he e.g. undermines defence or assists prosecution case. Murdock v. Taylor Judge has no discretion whether to determine whether the accused has lost his shield here – co-accused has an absolute right to challenge the to challenge the credibility of the accused by providing the jury with evidence of his bad character. 24 PRIVELEGE Public Interest privilege The state must identify the Public interest it claims will be damaged and court does balancing exercise. Incorporated law soc of Ireland v. Min for justice 1987 Protects confidential communications between agents of the state. Ambiorox Ltd & Ors v. Min for the environment and ors. 1992 Security of the state and effective discharge of the function of the executive. Murphy v. Dublin Corporation & Ors 1972 Sought documents created in advance of a CPO. Balancing exercise between the interest in admin of justice and the interest in state powers. It Is for the judge to decide. They will either examine the document or a description may be sufficient, and choose which interest is greater. Ambiorox Ltd & Ors v. Min for the environment and ors. 1992 Endorsed Murphy and summarised the principles as: 1. Admin of justice is performed solely by the judiciary 2. Power to compel evidence and production of evidence is inherent in the judicia l power and it is an ultimate safeguard of the state 3. Where a conflict arises between the 2 interests, it is the judicial power which will decide which public interest shall prevail. 4. The duty to make decisions does not mean that the court has a preference over which interest to support 5. It is for the judiciary to decide what evidence it will act on in any case to reach that decision. Breathnach v. Ireland 1993 Regard must be had to the extent that the disclosure will weaken the case of the respective parties. Ct also noted that there is no blanket privilege – here they ordered disclosure of written notes from garda interviews. *Balancing only applies to public privilege. 25 Private Privilege Goodman International and ors v. Hamilton & Ors 1993 Hamilton CJ endorsed the Wigmore rules. 1. The communication must originate in confidence that they will not be disclosed. 2. This confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties 3. The relationship must be one in which the opinion of the community ought to be sedulously fostered. 4. The injury that will endure to the relationship between the parties must outweigh the benefit of disclosure. Calcroft v. Guest A third party may give evidence of the information if he knows about it – ie if he seen it or saw it communicated. Sacerdotal Privilege Cook v. Carroll 1945 Accepted that privilege exists between priest and his parishioners, cant be waived by any party without priest’s permission. Forstall v. Forstall 1966 Here, pl wrote to a priest about his brother. No privilege existed as he was not the parishioners priest so no confident relationship existed. Johnston v. Church of scientology mission of Dublin ltd 2001 Refused to extend it to the defs – no evidence that the sanctity of confession was a tenant of the religion, or that scientology was even a religion. Quinn Supermarket v. AG 1972 Religious protection goes beyond Christianity. S.2(1) & 3(1) Criminal Justice (Withholding information on offences against children and vulnerable persons) Act 2012 This makes it an offence not to disclose information on certain offences – without prejudice to privilege arising. Counselling Privilege ER v. JR 1981 Applied the wigmore rules to a priest acting as marriage counsellor – couldn’t disclose what he learned in the session. Johnston v. Church of scientology mission of Dublin ltd 2001 Extended the above to secular counselling – marriage counselling. But only capable of being waived by the patient. Marital Privilege Stems from marital privacy. CJ Act 1924 – Spouse is competent but not compellable. DPP v. T 1988 Rejected the assertion that a wife can’t Testify if she had been a relevant witness, could be compellable. Now governed by CE Act 1992 – discussed in the relevant section. Journalistic Privilege Re O’Kelly 1974 Journalist was convicted of contempt of court, as they refused to reveal their sources. CCA upheld this – he was asked to identify the speaker of words which were claimed to constitute the offence of membership of an unlawful organisation. DPP v. Nevin 2003 Also rejected this privilege. 26 Burke v. Central Independent Television Inc 1994 Allowed the privilege in effect, but it was grounded on protecting right to bodily integrity and life of the source. Settlement Privilege Normally, without prejudice communication. It is one that aims to resolve the dispute – fosters settlement and further talks. Greencore group plc v. Murphy 1995 Essential that parties should not be discouraged by the knowledge that anything that is said in the course of negotiations may be used in the course of proceedings. Rush & Tompkins v. Greater London Council 1988 Must be in contemplation of proceedings, but they need not have started. Second, they must represent a genuine attempt to resolve the dispute. Need to also show evidence of the fact that parties intended for the letter not to be disclosed. Flanagan v. Ray – Ger Ltd 1983 Must show intention. Also, marking it without prejudice is evidence, but not proof. They aren’t magic words per Costello J. – can also have it without the words. Sable offshore energy Inc & ors v. Ameron Intl corp & ors 2013 If there are multiple defendants and the pl does a settlement with just 1, it cant be disclosed to the others. Exceptions Sable Offshore Enegery Inc & ors v. Ameron Intl Corporation & ors 2013 Noted that the right can be removed where it is in the public interest, such as were there is fraud, misrep, undue influence etc. Samatra ltd v. Sinclair Roche & Temperly 2999 Parties may waive it expressly or impliedly – by using evidence in the course of the case. Forster v. Friedland 1992 Can only pierce the veil of settlement where there is evidence of unambiguous impropriety. Informer Privilege Buckley v. Incorporated Law Society 1994 This does not attach to identity to a person who complains to a professional body. DPP v Special Criminal Court 1999 This was a JR app. of the decision of Paul ward. SC held that a privilege subject to the innocence at stake exception. If upon the trial of a person the judge should be of the opinion that the disclosure of the informant is necessary or right to show the prisoner’s innocence. SC on review held that the correct action is for the dispute settlement to be heard by trial judge/ They would then determine if they help or disparage the prosecution case, or even lead to other evidence. DPP v. Connolly 2018 The appellant has a right to request the judge to review the documents, but he has a discretion to decide to or not, which must be exercised judicially. Here, he was tried for IRA membership, on the basis of Assistant commissioners belief based on anonymous source. DPP v. Kinsella 2018 COA held that ordering the name of the informant is a radical step and would in most cases result in the immediate collapse of the trial. However, they accepted that it could be done if an appropriate case necessitated by the innocence at stake exception, and the paramount requirement to ensure that the innocent are not convicted. 27 Legal Professional Privilege It gives confidence to clients that it won’t be disclosed, meaning they can be honest with their lawyer, to get proper advice. Legal Advice Privilege Ochre Ridge Ltd v. Cork boneld Warehouse ltd 2004 1. A communication must be made between a person to his lawyer acting for him as a lawyer, for the purpose of obtaining legal advice. 2. The dominant purpose must be the seeking or giving of legal advice. 3. Advice does not extend to business matters nor to conveyancing documents but does extend to the correspondence associated with those documents for the purpose of seeking or giving legal advice. 4. Smurfit Paribas Bank Ltd v. AAB export Finance Ltd 1990 Test is: where a person seeks or obtains legal advice, there are good reasons to believe that necessary enters the area, potentially litigation. Seeking advice on the correctness of some step or query as to effectiveness enters the area, regardless of whether this challenge occurs. This is considered with the next steps. 5. The provision of legal assistance may entail the provision of legal advice as the duty of care obviously still goes beyond scope of instruction and requires him to consider the legal implications of the facts. 6. Surrounded documents consulted for the purpose of drafting documents and the purpose of obtaining legal advice are privileged. 7. R v. Crown Court ex p. v. Baines 1987 Communication re advice for conveyancing were privileged, but the records of the transaction were not, as they did not contain legal advice. 8. Miley v. Flood 2001 A solicitor will not be required to disclose information as to the details of a client where it is so intertwined with the legal advice that the effect of reversing it would be to disclose the advice. 9. Does not attach to copies of pre-existing documents that are made for the purpose of obtaining legal advice 10. The details of when a client met with the lawyer are usually not privileged, unless in the exceptional circumstances where such details are required by a solicitor to give legal advice. 11. Communicating from the opposing solicitor are not privileged unless it contains settlement details. 12. Public interest in protecting disclosure is important to consider. Buckley v. Incorporated Law Society 1994 Only applies where the person being consulted as a legal advisor. This includes lawyer, in house counsel, person mistakenly believed to be such a person and any agent of these. Litigation Privilege Applies to confidential information contained in a communication, between a client and a lawyer – or agents- and the dominant purpose is to prepare for litigation. Silver Hill Duckling Ltd v. Min for Agriculture 1987 It must be shown that the dominant purpose of the document coming into existence should have been for the purpose of preparing for litigation threatened or apprehended. Waugh v. British Railway Board 1980 HOL endorsed by above case. Here, def tried to claim privilege of a report made after the employee’s accident. It was made for safety rather than litigation so not privileged. Must be sole or dominant purpose. Can’t have any equal or secondary purpose. Davis v. St Micheals House 1993 Report by insurers was privileged as it was the dominant purpose. S Gallagher v. Stanley 1998 Statements were made by nurses as to the matter of the baby’s birth. Memos were made and claimed to be litigation privilege, but the real reason was to prevent another accident happening again. UCC v. ESB 2014 Privilege doesn’t automatically survive litigation. 28 Ryanair Ltd v. Revenue Commissioners & ors 2018 Accepted that it may survive, but it must be closely related litigation. Here, different parties and no direct link. Didn’t survive here. Losing the Legal Professional Privilege Bula Ltd v. Crowley & ors 1994 SC refused to remove the privilege where the document was relevant to the commission of a tort of negligence – v. strict. Disclosure by mistake Calcroft v. Guest A third party may give evidence of the information if he knows about it – ie if he seen it or saw it communicated. R v. tompkinson 1898 Prosecution were allowed rely on a note that said def. knew of the loose button on the stereo. Gunner Peat Properties Ltd v. Fitzroy Robinson Partnership 1987 Contrasted here – mistake or fraud can be stopped by injunction and can be taken back before its read. Proceedings under Guardianship Act 1964 LT v. LV 1996 Can be disclosed if in interests of the child and justice. Testamentary disposition Russel v. Jackson 1851 Can be disclosed if it goes to the intention of the testator. Crawford v. Treacy 1999 Refused disclosure as there was other ways to get the information. But still possible. Exculpates an innocent person R v. Barton 1973 Based on the rules of natural justice – if there are documents in possession or control of a solicitor, which on production, help to further the defence of an accused man, then no privilege attaches. R v. Arlow 1988 An appeal was allowed in respect of a conviction, as this evidence was refused at trial. R v. Derby Magistrate Court e p B 1996 HOL overruled these cases, to protect from people being deterred from speaking with their solicitor. Info communicated in furtherance of Criminal conduct or obstructing justice R v. Cox 1884 Lawyer does not need to be aware of the criminal purpose that prompted the advice. AG V. Coleman 1945 The list of people he had given abortions to was found to have been made so they would commit perjury – not privileged. Murphy v. Kirwan 1993 Extended to include conduct injurious to the interest of justice. Here, privilege was pierced as the claims were vexatious and abuse of process. Bula Ltd v. Crowley & ors 1994 Refused to extend to negligence – can’t just be used to further your case. 29 Waiver McCullen v. Carty 1998 SC – can only be waived by the client. Can be express or implied. In this case, it was implied as he was suing the solicitor, so he put the communication in issue. British Coal Corporation v. Dennis Rye ltd 1988 Even if waived in one proceeding, can be reasserted in another. Great Atlanta Insurance Co v. Hove Insurance Co 1981 If the section you want to waive can’t be severed – all or nothing. Privilege against Self Incrimination Heaney v. Ireland 1994 SC recognised the right to silence as a corollary of freedom of expression. Subject to order and morality. In the ECtHR, held that the restriction here under OATS was justified to protect public order. DPP v. Finnerty 1999 Can only be encroached upon by the Oireachtas do so clearly, expressly and constitutionally. DPP v. KM 2018 SC said you can exercise and waive the right in parts. Statement was given and refused to go beyond it – held that he did not give full waiver; only in those parts. 30 TESTIMONY Competence DPP v. Campion 2018 To be competent, must have the ability to understand questions and given intelligible answers on matters. Then it is for the judge to decide. Sworn Testimony An oath or affirmation. Healy notes that failure to swear will nullify it, unless provided for in law. R v. Hayes 1977 It is enough that the witness understands the solemnity of the oath and responsibility for truth over and above the ordinary duty in everyday life to tell the truth. DPP v. T 1988 Down syndrome witness – testimony was allowed as there was nothing to suggest she didn’t understand the nature of the evidence she gave or that her recollection was untrustworthy. Unsworn testimony Under 14 years old or mental capacity – if they don’t understand the solemnity of the occasion and the duty to tell the truth, whole truth and nothing but the truth. S.27 Criminal Evidence Act 1992 Court must be satisfied that they are capable of giving an intelligible account of the events. Compellability Accused S.1 Criminal Justice Act 1924 Makes accused competent for the defence – not compellable. S.1(b) No comment can be made about silence. S.1(d) Can’t be compelled to disclose any communication made by him to spouse. He can be competent for his co – accused but not compellable. This is until he is no longer accused (pleads guilty etc.) then he is compellable. Spouse and Former Spouse DPP v. JT 1988 Def. was convicted of rape of a girl with downs syndrome on the basis of inter alia his wife’s testimony. Citing article 41 of the Constitution, held that even if wife had been reluctant, she would have been compellable. S.1 Criminal Justice Act 1924 Spouse is competent for the defence. DPP v. JC 2019 This only applies to spouse or former spouse – does not apply to co-habitants etc. Prosecution S. 21 Criminal Evidence Act 1992 They are competent for any offence for the accused or co accused. S.22 They are compellable for cases which: a. Involve violence or threat of violence: i. To the spouse ii. To a child or spouse of the accused 31 iii. Any person was at the material time under the age of 18 b. Involve a sexual offence alleged to have been committed to a person in ii or iii. c. Consists of attempting to, inciting, aiding or abetting etc. Accused S. 23 Can be compelled to testify for the accused. Co Accused S.24 a. Spouse of co- accused are compellable for offences under s.22. b. A former spouse shall be compellable unless the offence charge is alleged to have been committed at a time when the marriage was subsisting, and no decree of judicial separation or separation agreement was in force and it’s not under s.22. S.25 Neither spouse can be competent during trial of co-accused of the prosecution or be compellable unless the person concerned or not is not liable to be convicted I.e., no longer accused. Diplomats are immune – s. 5 Diplomatic Relations Immunities act 1967 TV LINK/INTERMEDIARY TV Link PART 3 OF THE ACT S.12 – applies to part 3 ( all 13 & 14). i. Sexual offence ii. Violence iii. Inchoate offence involving the above iv. S. 3 Child trafficking and pornography act S.13(1) In any proceedings for an offence a person other than the accused may give evidence via live link where they are - Under 18 or an adult with mental handicap, unless the Court sees good reason to the contrary - In any other case with leave of the Court S. 13(2) It must be video recorded and neither the judge or barristers should wear wigs or gowns when examining witness. S.29 Person outside of the state (in any trial on indictment) may give video evidence. Must be recorded. S.39 This can be used where the Court is satisfied that the witness is likely to be in fear or subject to intimidation. Applies in all criminal trials on indictment. Donnelly v. Ireland 1998 Accused challenged this – SC said no right to physical confrontation. Intermediary S.14(1) Person under 18 or with mental handicap, where the Court is satisfied the interests of justice require it, the questions may be put to an intermediary on the witnesses’ behalf. S. 14(2) Words put to them should be the words used by the questioner or so as to convey to the witness the question in a way appropriate to age or mental condition. S.14A Child witness may use a screen or other similar device so they don’t have to see the accused. 32 S.14B Child witness – judge and barristers should not wear wig or gown. S.14C Court may direct that the accused may not personally question the witness. This also applies to best interest of the child cases in civil proceedings. 33 EXAMINATION IN CHIEF Leading Questions Maves v. Grand Trunk Pacific Railway Company 1913 It is a question where the answer is yes or no. This is prohibited during examination in chief. Ensures it’s their own words and that a nervous witness will just go along with the lawyer’s narrative. Exceptions: - Personal details - Facts not in dispute - Hostile Witnesses Hostile Witness Procedure: S.3 Criminal Procedure Act 1865 Where the witness proves adverse/hostile, the advocate may contradict him by other evidence or by leave of the judge prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made the statement. R v. Hayden A witness is hostile where he appears unwilling to tell the truth and the whole truth. O’Flynn v. District Judge Smithwick & Anor. 1993 The court has a wide discretion as to what matters are relevant here – not just confined to considering hostility in relation to a previous oral statement. Can examine witness’s refusal to answer question etc. R v. Hannigan Being unfavourable does not amount to hostility. Procedure AG v. Taylor 1974 1. Put to the witness that she had on another occasion made a statement which differed materially from or contradicted the one that she was making in the witness box. 2. If she were to deny that, then put the witness down and call the person who took the statement to prove that she did make the statement, without disclosing the contents of the statement 3. Earlier witness is then called back to the box and the statement put to her for identification, and then her attention should be drawn to the passage in which the contradiction/material variation appears. 4. If she agrees that there was such a contradiction or material variation, that should be the end of matters. The jury have already seen that she has admitted this and thus impugned her credibility. 5. Statement might then have been put in evidence though that might not be necessary where an admission has been made. 6. If she had persisted in denying the contradiction, the statement having already been proved, would have gone in as evidence of the fact that the witness had made a contradictory statement. It must be made clear to the jury that evidence from the hostile witness procedure is evidence going only to her credibility. It can’t be used to prove the truth of the statement – as that would be hearsay. DPP v. Hanley 2010 COA said that another permissible objective is to have the witness recant and tell the truth. DPP v. Cunningham 2007 Ct is slow to allow an appeal for the procedure – trial judge uses their discretion. Only where clear error. 34 S.16 Criminal Justice Act 2006 Applies in any criminal trial for arrestable offences on indictment (not in district Court) – stops the intimidation of witnesses. Previous statement can be used as evidence. S.16(1) Statement may, with leave of the court, be admissible as evidence of the fact mentioned in it if the witness, although available for cross examination: a. Refuses to give evidence. b. Denies making the statement. c. Gives evidence which is materially inconsistent with it. DPP v. Callopy 2016 A witness who gives a statement but says he forgets the event, falls into c. S.16(2) Procedure is: 1. Witness admits that he made it or is proven to have made it (Garda). 2. The evidence must be admissible at trial – this means that this procedure can’t be used to circumvent general rules of evidence (hearsay etc). 3. Must be voluntary 4. Must be reliable. S.16(3) states that in considering whether the statement is reliable, shall have regard to: i. Whether it was given on oath or affirmation, or video recorded ii. If it was not given on oath or affirmation or video recorded, whether by reason of the circumstances in which it was made, there is other sufficient evidence to support its reliability. Must also have regard to: i. Any explanation given for refusing to give evidence or for the material inconsistency ii. Any evidence in relation to his denial of making the statement. S.16(4) Court has discretion to refuse to admit the statement. a. Having had regard to all the circumstances, including any risk that its admission would be unfair to accused(s), that in the interests of justice it ought not to be so admitted, or b. That its admission is unnecessary, having regard to other evidence given in the proceedings. DPP v. Mindadze 2018 COA held that such an instance would be if the witness had attached too much importance to something in her statement, but has now realised that that importance was misplaced, leading to uncertainty. That would not be in the interests of justice. However here, it was clear that she simply changed her testimony so as not to implicate the accused. S.16(5) Arbiter of fact may, in judging what weight to put on the statement, have regard to all circumstances which any inference can be reasonably drawn as to its accuracy or otherwise. DPP v. O’Brien 2010 Here, - Supported by medical evidence - Supported by the account of the sister. DPP v. Gruchez 2019 SC confirmed s.16 can be used with hostile witness procedure. 35 Cross Examination Collateral Issue rule A collateral issue is one that has no bearing on a fact in issue of the case. It is usually a fact that goes to credibility of witness’ testimony. R v. Bourke 1858 A witness’s answer about a collateral issue is final and may not be contradicted by evidence in rebuttal. It restricts an attempt to undermine a witness’ credibility during his cross examination. Dpp v. Nevin 2010 The justification is a practical one – stops the trial becoming encumbered by perhaps an unlimited number of quite different issues, for which the other party might or might not be prepared. The Court asks itself whether the issue being discussed is something that the cross examiner himself could adduce evidence of. If the answer is no, it’s a collateral issue. If a party seeks to contradict a witness on matter itself irrelevant to the trial except insofar as reflects on the witness’s credibility, he is bound by the answer of the witness and can take the issue no further. Dpp v. Barr 1992 On appeal, defence sought to adduce new evidence that the woman had been at the scene of the crime before when she claimed she wasn’t. It was an indecent assault. This was wholly irrelevant to the fact in issue (whether the accused committed an indecent assault). Exceptions: Inconsistent non-testimonial statements: This is a collateral issue as the party to a legal dispute does not have to prove the absence of such a consistency. S.4 Criminal Procedure Act 1865 If a witness, upon cross examination as to a former (IE non-testimonial) statement made by him relative to the subject matter of the indictment or proceeding and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. S.5 Criminal Procedure Act 1865 Can also be questioned on a previous written statement relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must be drawn to the parts to be used to contradict him. Both S.4 & S.5 only go as to credibility. Previous Convictions This is a collateral issue given it doesn’t need to be proved that he has a previous conviction. S.6 Where accused is cross examined on a previous conviction, and he denies having one or refuses to answer or does not admit to having one, evidence can be adduced to prove otherwise. It is adduced to show that he is not credible and untrustworthy. Bias This is a collateral issue as it does not need to prove the absence of such a bias. 36 AG v. Hitchcock 1847 Witness denied taking a bribe to testify. Def. wanted to produce evidence to show that he was offered a bribe – trial judge was correct in refusing as this would not show he was biased – just that there was an offer. It would have been different if he actually did take the bribe. DPP v. McGinley 1987 Prosecution’s main witness was the co – accused who was given a suspended sentence; the trail judge erred in refusing to allow the defence to cross examine the witness in considerable detail as to his motives and as to what was said at his trial which would go to establish what his motives were. Disability Toohey v. Metropolitan Police Commissioner 1965 Where a witness through… a disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal the vital hidden facts to them. Sexual Experience Evidence Traditional rule was that this was not seen as collateral – DPP v. McGuinness 1978. Promiscuity could be used to bolster an honest belief. S.3(1) Criminal Law (Rape) Act 1981 General rule – no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of the accused about any sexual experience (other than that to which the charge relates) of a complainant with any person. If he wants to do so – must seek a voir dire. S.4A This does not apply to sexual assault or any related inchoate offences. 1. The complainant shall be entitled to be heard in relation to the application and for this purpose to be legally represented during the hearing of the application; 2. The accused must notify the prosecution of his intention to make the application before or as soon as practicable after the commencement of the trial. 3. The prosecution must as soon as practicable after the receipt of it of such notice notify the complainant of his or her entitlement to be heard in relation to the application and to be legally represented for that purpose. 4. Application can’t be heard unless 2 and 3 have been complied with 5. If the period between being notified of entitlement and the hearing is in the judges view not enough for the complainant to get legal representation, the judge shall postpone the hearing until such a date as will afford the complainant that opportunity. S. 3(2) (b) – Test The judge shall give leave if and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that on the assumption that if the evidence or question was not allowed, the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied. R v. Riley 1990 The complainant asserted that she would never have had sex while her child was next door – evidence was allowed to show that she had done that before. 37 DPP v. K 2007 Kearns J. held that the trial judge erred here. The evidence tendered was that her hymen was ruptured during sex, which was discovered after an examination after she reported to the Gardaí. Judge erred in refusing cross examination of the complainant in regard to her sexual history with other boys from the age of 12. This was because it would undermine gynaecological evidence, which may have led the jury to believe there was only one suspect when it was told the complainant was no longer a virgin. Kearns J. did confirm however that it may only be permitted where it was strictly necessary and should not be used as character assassination. It is also stricter the younger the child is. 38 RULE AGAINST NARRATIVE This is concerned with non-testimonial statements that are consistent with the witness’s testimony (unlike s.16 and hostile witness). It means that a witness can’t use his own evidence to bolster his testimony i.e., can’t corroborate himself. There are a number of exceptions: Evidence of a complaint in sexual offence trial R v. Lillyman 1896 This is known as the doctrine of complaint. It applies in sexual offence trials only, even where consent is not an issue. Even where she is the only prosecution witness, she can use her own statement to corroborate it. Applies where: a. The content of the complaint is consistent with the content of the complainant’s testimony b. The complaint was made voluntarily c. The complainant made the complaint at first reasonable opportunity This is only admitted to show credibility of the witness – not corroboration of fact. Consistency DPP v. Gavin 2000 Here, the statement said that the complainant had been sexually assaulted when they woke up and the accused was in his bed with his hand on his groin. His testimony said that he woke up and the accused was behind him. The CCA held that it was not consistent, simply because both statements said sexual assault. The description of a hand on a groin is crucially different. Thus, it was not admitted. Voluntariness Must have been made of her own volition – not induced. Ideally it should not be because of a question (especially a leading question). R v. Osbourne 1905 The character of the question asked should be considered and the relationship of the questioner to the complainant. If the circumstances indicate that that but for the questioning there probably would have been no admission, then can’t be admissible. DPP v. DR 1998 The wife said that the man was no gentleman. When asked what she meant by the husband, she said that she was raped by him. This was admissible. It was not that her husband interrogated her; he merely assisted her in saying something of which she would herself say (also delay case, below). These cases suggest that a question of what’s wrong is okay, but were you raped may pose difficulties, or even did X rape you. First reasonable opportunity R v. Nazif 1997 Court will consider the reasonableness of the delay. DPP v. Brophy 1992 Here the complainant met her father and friends during the day and told them about the rape. She had met her mother previously however and did not mention it. Due to not telling her mother (and having no explanation as to why not)– not fir

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