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48 Cards in this Set
- Front
- Back
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Hearsay
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Cullen v Clarke - "there is a general rule, subject to many exceptions, that the evidence of speaking of [untestimonial] words is inadmissible to prove the truth of the facts they assert"
DPP v Subramaniam - Malaysian terror - it is hearsay and inadmissible when the object of the establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made" |
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Res Gestae
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R v Bond - "closely and inextricably mixed up with the history of the guilty act itself"
Cross noted Lord Blackburn's remark, "if you want to tender inadmissible evidence, say it is part of the res gestae". |
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Res Gestae - Spontaneous Statements by a Participant or Observer of Relevant Conduct
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R v Beddingfield - strict temporal requirement
R v Teper - "your place is burning and you are going away from the fire" R v Ratten - telephone call from the house - relaxed the rule considerably R v Andrews - stabbed by two men outside house, named them to police. Relaxed rule. "Concoction or distortion" People (DPP) v Crosbie - statement after being stabbed in dockers' club, admissible. DPP v Lonergan - Kearns J, extensive review of authorities, position in Ireland is that "the true importance of the requirement of contemporaneity is that is to eliminate the possibility of concoction" |
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Res Gestae - Spontaneous Statements Explaining Relevant Conduct
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Cullen v Clarke - evidence of being given reasons for not hiring.
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Res Gestae - Spontaneous Statements Explaining State of Mind
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People (DPP) v Murphy - phone call to father, "sorry dad, I don't know what I did, but something in the back of my head tells me I did it" - inadmissible in this instance, but Court acknowledged the admissibility of:
"the spontaneous and unrehearsed expression of contemporary feelings" |
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Res Gestae - Spontaneous Statements Explaining Physical Sensations
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R v Black - statement made a day after sensation was experienced was admissible
Donaghy v Ulster Spinning Co. - statement that ptf had been injured at work was inadmissible under this exception, it was not a "sensation" |
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Documentary Evidence and Hearsay
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Myers v DPP - chassis numbers, inadmissible
Criminal Evidence Act 1992 - Section 5 - discretion to admit documents made in the "ordinary course of business" |
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Hearsay - Implied Assertions
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English authorities say that these may be caught also -
Wright v Tatham Teper v R R v Keatley - callers to a drug den looking for ... drugs - NB |
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Hearsay - Electronic and Mechanical Forms of Evidence
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DPP v Meehan - phone records
DPP v "Slab" Murphy |
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Fact in Issue
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Fact that must be proved / disproved in order to succeed.
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Dying Declarations
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(a) The statement must relate to the cause of death and the identity of the killer
(b) The deceased must have been competent when he/she made the statement (c) The accused must be on trial for murder or manslaughter, and (d) The deceased must have been labouring under a hopeless and settled expectation of death at the time. R v Woodcock R v Jenkins - "no present hope of recovery" - strict application R v Fitzpatrick - Answers to questions acceptable, but may go to weight. |
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Declarations by deceased in the course of a duty
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Harris v Lambert - solicitor's diary, facts not opinions
HOWEVER Ryan v Ring, baptismal register, no sufficient source of knowledge for priest as to marital status. R v Maguire - deceased fire officer, admissible. |
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Declarations by deceased against pecuniary interest
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R v Blastland - doesn't apply to admissions of criminal liability
Lalor v Lalor - must have had personal knowledge and known statement against interest R v Rogers - include acknowledgment of owing a debt Richards v Gogarty - includes acknowledgement of receipt of monies owed to another. |
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Declarations by deceased as to pedigree
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In Re Holmes (might actually remember this one. John Holmes. Donger.)
Haines v Guthrie Palmer v Palmer Butler v Mountgarrett Must have been made ante litum motam - before proceedings issued. |
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Hearsay - Statutory Exceptions
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Criminal Justice Act 2006 - admissibility of hostile witness statements
Criminal Justice (Amendment) Act 2009 - document or other record emanating from a criminal gang, as defined. Criminal Evidence Act, 1992 - documentary evidence in criminal trials Children Act 1997 - admissibility of statements by children in civil cases Criminal Justice (Miscellaneous Provisions) Act 1997 - Statement of arresting garda re arrest and arraignment CAB Act 1996 - CAB v Hunt. Bankers Book Evidence Act 1879 |
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Hearsay - Public Documents
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Must have been compiled in the performance of a duty.
Irish Society v Bishop of Derry - advowsons register Minister for Defence - maps of the Curragh of Kildare admissible |
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Legal Burden of Proof
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DPP v DOT - Presumption of innocence is the fundamental basis of trial in due course of law, not a "mere technical rule"
Can only rest on the Defense proper to establish Insanity and Insane Automatism. Small question over duress, probably not though. Barnes - burglar may end up with burden of proof in certain instances. "it may be that ... the right to life of the householder ... inadequately protected by a rule that failed to distinguish between a fight in the street and a killing in the course of a burglary" If the burglar has "exclusive knowledge" the legal burden might devolve to the burglar to establish self defence - OBITER |
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Legal Burden may Devolve to Accused to Prove a Defence in Limited Circumstances
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Hardy v Ireland
O'Leary v Ireland Nonetheless, prosecution must prove a number of facts in issue before accused even to be called upon. |
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Evidential Burden of Proof
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The burden of proving "some evidence" of a fact in issue.
People (DPP) v Walsh - Walsh J - there must be "some evidence on which the arbiter of fact may find a defence". If not available on prosecution case, accused must provide it. Prosecution must negative the defence beyond reasonable doubt. DPP v Kieran Smyth Snr. and Kiernan Smyth Jnr. - "the legal burden of proof discharged on the lowest standard of proof, the standard of proving a reasonable doubt" |
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Res Ipsa Loquitur
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Byrne v Boadle - sugar bag fell
Scott v London St. Catharine's Docks Mullen v Quinnsworth Lindsay v Mid Western Health Board Hanrahan v Merck Sharp and Dohme Rothwell v MIBI DPP v PJ Carey (Contractors) - trench collapsed, res ipsa loquitur disallowed in criminal proceedings. |
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Proof beyond reasonable doubt
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Miller v Minister of Pensions [1947] Denning J "of course it is possible, but not in the least probable".
People (DPP) v DOT - Defendant is entitled to the benefit of any reasonable doubt. People DPP v O'Connor - "you are not to be concerned with whimsical or fanciful doubts" |
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Balance of Probabilities
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More likely than not.
Applies to the accused in criminal trials. |
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Hostile Witness Rule
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R v Hayden - "unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth".
O'Flynn v DJ Smithwick - Refusal to answer can lead to declaration. R v Thompson - incest, daughter withdrew statement, trial judge's discretion upheld by CoA. AG v Taylor - Voir dire for declaration of hostility, Court should stand down the witness, call contradictory evidence as to taking of witness, let the witness answer, if admission proceed, if the witness denies the written non-testimonial statement may be admitted. Walsh J - the statement is not evidence of fact, but evidence of an inconsistent statement. Section 16 of the Criminal Justice Act 2006 |
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Collateral Issue Rule
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Not evidence of a fact in issue.
R v Burke - answer on a collateral issue (e.g. eyesight) on x examination is generally final. Exceptions: relevant, inconsistent non-testimonial statement. Doesn't matter whether sworn or signed, Sections 4 and 5 of the Criminal Procedure Act 1865 - statement may be adduced if he denies having made it. Previous convictions - accused may lose shield Bias or improper motive - DPP v McGinley - suspended sentence to cooperate - "the general category of questioning seeking to lead to the establishing of partiality, bias or improper motive on the part of the witness, as distinct from a general assertion of lack of credit" Disabilty |
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Sexual Experience Evidence
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Historically x examination could take place - Criminal Law Rape Act 1981 - essentially did away with this.
Not considered in Ireland yet. Test: if it would be unfair to accused person to refuse to allow the evidence to be adduced or the question to be ask. R v T & Anor - questions on prior complaints and inconsistent statements in respect of the alleged or other sexual abuse. R v Funderbunk - question of virginity 'crucial'. |
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Rule Against Narrative
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Prevents witnesses' admitting non-testimonial statement to bolster credibility.
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Exceptions to the rule against narrative - Doctrine of Recent Complaint - Sexual Offences
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- may be admissible if the complaint is consistent with the complainant's testimony in chief, voluntary, and at first reasonable opportunity
DPP v Gavin - sexual assault, man on man, in bed pushing up against him - consistent. R v Osborne - voluntary, even if result of question, but not a leading question. DPP v McDonagh - complained to taxi driver first, but evidence of complaint to Gardai still admitted. People (DPP) v Kirwan - told boyfriend two days latter, inadmissible, not made at first available opportunity DPP v DR - raped by sister in law's partner, didn't complain till out of the house, admitted, psychological reaction and fear of accused. |
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Competence of Children
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Section 27 Criminal Evidence Act / Section 28 Children Act 1997 (civil trials) - permit unsworn evidence of a child under 14 to be admitted " if capable of giving an intelligible account of events relevant"
AG v Sullivan - 10 year old, buggery, voir dire not strictly necessary (but advisable). |
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Compellability of the Accused
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Section 1 Criminal Justice (Evidence) Act 1924 - accused is now competent to testify for the defence but may not be compelled - right to silence.
Accused is not competent to testify for the prosecution. The accused is competent to testify for a co-accused, but may not be compelled. If he no longer stands accused - acquittal, etc, he may be compelled. |
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Compellability of the Spouse of the Accused
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Criminal Justice (Evidence) Act 1924 - spouse made competent for the prosecution for scheduled offences.
People DPP v JT - sexual offences against daughter - appellant argued that having the spouse testifying contrary to Art. 41. Rejected by walsh J. Criminal Justice Evidence Act 1992 - spouse now competent in any proceedings, unless co-accused.Now compellable if the offence: 1. Involves violence against spouse or a child, 2. Sexual offence against a child, 3. Attempt, procuring aiding abetting these offences. |
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Section 16 of the Criminal Justice Act 2006
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Statements may be admitted as original evidence where the witness where the witness refuses to give evidence, denies making the statement or gives materially inconsistent evidence. Court must be satisfied that:
1. The witness made the statement - admission or proof 2. Direct oral evidence would have been admissible - statement must not be hearsay 3. The statement was made voluntarily 4. The statement was made voluntarily - oath, affirmation, video recording OR an examination of the surrounding circumstances. TJ should believe it to be true; 5. Oath, affirmation, statutory declaration or Court "otherwise satisfied" that the witness understood the requirement to tell the truth. 6. It would not be unfair to the accused to admit it. The weight to be attached to it shall be inferred from the circumstances, showing its accuracy. DPP v O'Brien (2010) |
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Corroboration
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R v Baskerville - quite a narrow definition - independent statements tending to implicate the accused for the commission.
DPP v PC - endorsed Baskerville definition in Ireland R v Redpath - stranger having observed rape victim's demeanour. R v Lucas - lies under x examination can corroborate, however they can only corroborate independent statements - not those of an accomplice, as in this case - lie must be deliberate, must relate to a material issue, motive of a fear of the truth, clearly shown to be a lie by independent evidence. R v James - gynecological evidence was found to be corroborative at trial - overturned on appeal, didn't show non-consensual intercourse. DPP v D - similar, re gynecological evidence, further exam performed one year after crime. People (DPP) v Reid - CCA took a more relaxed view on corroboration - rape, TV turned up, medical evidence as to condition of accused's genitals, Garda evidence of complainant's distressed state. Totality of circumstances - cumulative corroboration. |
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Corroboration Warnings - Accomplices
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AG v Levinson - Mandatory warning.
Davies v DPP - narrow definition - accomplices are "participes criminis" in the crime in question. AG v Linehan - broader approach in Ireland, no binding definition, case by case. Granddaughter's daughter murdered, GD acquitted, gave evidence against accused, accomplice. People (AG) v Carney - "a very slight degree of complicity ... in the crime charged" is sufficient. |
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Corroboration Warnings - Accomplices - Jury
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Davies v DPP - 3 categories:
Very clear witness is accomplice - warning mandatory Obvious witness not accomplice - no warning Borderline case, open to finding, on the facts. TJ should give a conditional warning and allow jury decide. People AG v Carney - clear to SC witness was an accomplice, should not have gone to jury DPP v Diemling - TJ decided witness was accomplice, SC not so sure, should have gone to jury |
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Corroboration Warnings - Witness Protection
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DPP v Ward - extreme caution, but stopping short of laying down a rule that accused could not be convicted on uncorroborated evidence of a "supergrass"
DPP v Gilligan - evidence of three accomplices - upheld, found witnesses to be reliable, warning still required, corroboration may include circumstantial evidence - administration of justice has a right to every man's evidence except for that evidence that has been excluded by law or the constitution. DPP v Ryan - protected witness evidence falls in a special category of its own. |
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Corroboration Warnings - Complainants in Sexual offences cases
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Discretionary warning
DPP v Cradden, DPP v Williams - traditionally mandatory. DPP v Mulloy - "prudent practice" for TJ to give warning. People (DPP) v JEM - Denham J, warning clearly no longer mandatory. R v Makanjuola - (approved in JEM) discretion of judge on the evidence, evidential basis for caution required, not a set-piece, but grounded on the case, strength and terms equally variable, appeal court disinclined to interfere with TJ's discretion. People (DPP) v Wallace - TJ must have an evidential basis People (DPP) v PJ - difficulties in prosecution's case / claimant's evidence justified TJ's decision to warn |
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Corroboration Warnings - Children
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Criminal Evidence Act 1992 abolishes strict requirement for corroboration in respect of unsworn evidence of children.
Again, TJ has discretion. |
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Visual Identification Evidence - Eyewitness
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AG v Casey - jury should be warned that if their verdict depends wholly or substantially on the correctness of identification, the phenomenon of innocently erroneous identification, but still may convict if satisfied in all the circumstances. - minimum warning variable from case to case. - "supporting evidence"
R v Turnbull - Casey in England and Wales, look to quality of the evidence - "fleeting glance" DPP v Christo - Liberian - convicted, CCA quashed, "they all look the same defence", witness thought she knew the difference, issue should have been incorporated in the warning. |
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Formal Visual Identification
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AG v Fagan - ID parade not a strict requirement
DPP v Reilly - may not be practicable, e.g. distinctive looking accused. DPP v Carroll - ah lads, could ye not find 8-12 scruffy thirty somethings in Cork? DPP v McDermott - warning should be given as to preferability of parade in terms of control and credibility to informal ID. |
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Dock Identification
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DPP v Cooney - ID parade evidence was inadmissible as accused had been in unlawful detention. Dock ID upheld by Keane J, but made it clear that it is prejudicial and should only be admitted in exceptional circumstances.
People (AG) v Martin - each case on its facts People (AG) v Fagan - may be fairer than ID parades in certain circumstances !?!? DPP v Lee - identified accused in DC, where he was on charge for another crime. No formal ID. CoA held that onus on Gardaí to procure visual evidence in most reliable form, given inherent dangers and unreliability - "balancing probative value against its potential prejudicial effect in all the circumstances" |
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Visual Identification Evidence - Photographs and Video
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DPP v Rapple - accused had distinctive tattoo, identified from photographs, later formal identification - photographs may be prejudicial, but not in instant case.
DPP v Allen - warning wrt CCTV footage |
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Visual Identification Evidence - Recognition Evidence
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DPP v Smith - four Gardaí identified accused, previously knew him, CCA "degree of emphasis" on Casey rule will vary from case to case.
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Visual Identification Evidence - characteristics of witnesses
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DPP v O'Reilly - 81 year old woman, warning should have been stronger because of her age
DPP v O'Callaghan - security guard, experienced in observation, bolstered prosecution case. |
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Similar Fact Evidence
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Makin v AG for New South Wales - baby killers, 13 bodies found - "relevant to an issue before tje jury ... so relevant if it tends to shew ... crime charged ... were designed or accidental or to rebut a defence"
AG v Kirwan - brother killing - accused had been jailed, learned butchery - had funds beyond that which he might have saved since released. Admissible to rebut assertion that the money was his own and to prove identity of murderer. R v Smith - wife killer - life insurance - evidence that same thing had happened to two previous wives admissible R v Simms - sodomy and gross indecency against five victims - tried together, upheld on appeal. DPP v Boardman - public school boys made to take an active role in buggery, "striking similarity" |
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Similar Fact Evidence - Sexual Abuse
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DPP v P - "probative force" in support is so great as to outweigh the prejudicial effect in tending to show guilt of another crime.
B v DPP - adopted P, abused daughters, similar circumstances, self gratification and threats of violence paid for abortions for both. DPP v BK - buggery of 3 boys, 2 in dormitory may be taken together, not one in caravan - "inherent improbability" of fabrication, "practice" which would rebut innocent explanation of denial. DPP v DO'S - penis in the back while doing homework sufficiently similar to two other stories to admit under BK |
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Bad Character Evidence
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S 1 (f) Criminal Justice (Evidence) Act 1924
AG v Doyle - questioning on previous convictions to show experience before courts - inappropriate, quash. Jones v DPP - "tending to show" = tending to reveal - admitted to having been "in trouble with the police" - dropped his shield. Stirland v DPP - forgery - accusation by former employer - quash - even most virtuous may be suspected, "charged" = brought before court. R v Samuel - camera - assertion of previous good character in evidence opened evidence of bad character. R v Malindi - conspiracy - assertion that he'd counseled against violence not a character assertion but a statement of facts. R v Redd - Spontaneous statement doesn't count for shield purposes. |
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S 1 (f) Criminal Justice (Evidence) Act 1924
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Shield against "any question tending to show that he (i) has committed or been convicted of any offence other than that for which he is charged, or (ii) is of bad character"
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S 1 (f) (ii) Criminal Justice (Evidence) Act 1924
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"... nature and conduct of the defence ... involve imputations against [complainant] or witnesses for the prosecution"
Selves v DPP - buggery - alleged complainant was a rent boy. HoL took view section allows x exam even if imputation is an integral part of defence. Mere denial or allegation of consent, allegation of mistake rather than dishonesty will not satisfy. R v Britzman - differs from Selvey - admission overheard in cells, suggested officers mistaken, imputation of perjury, beyond denial, shield lost. AG v O'Shea - rejected English Approach - testing of truthfulness of witnesses crucial, intention of statute. AG v Coleman - illegal abortion, suggested bad contraception, bad marriage, stitch up by complainants, beyond what was necessary for proper conduct. DPP v McGrail - weapons - denied statement to gardai - imputation of perjury per TJ, CCA quashed, rejected English approach - constitution. |
