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Evidence Practice And Principles Bad Character Evidence Notes

BCL Law Notes > Evidence II: Practice and Principles Notes

This is an extract of our Evidence Practice And Principles Bad Character Evidence document, which we sell as part of our Evidence II: Practice and Principles Notes collection written by the top tier of University College Dublin students.

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BAD CHARACTER EVIDENCE

General rule is that any bad character evidence - past convictions or anything that shines a bad light on the accused - is inadmissible, but there are many exceptions

GENERAL RULE
B v DPP [1997] 3 IR 140
Budd JIt is not open to the prosecution to adduce evidence of the bad character of the accused in any form.The exclusionary rule also precludes proof of the commission of discreditable acts which are not themselves criminalAnd of any discreditable propensity which may make the accused appear as more likely to have committed the act charged

People (DPP) v Independent News and Media [2017] IECA 341/1
Edwards JClearest form of prior misconduct evidence is previous convictions or previous criminal conduct if not prosecuted -routinely excludedNot confined to criminalityExtends to evidence of discreditable actsDisclosure can have prejudicial effect on jury

RATIONALE
B v DPP [1997] 3 IR 140
Budd JSuch evidence is simply irrelevant'no number of similar offences in themselves can connect a person with a similar crime.'Tried on the probative evidence of the count/ offence before it - court not concerned with their past

People (DPP) v Independent News and Media [2017] IECA 341/1
Edwards JKnowledge of prior misconduct may prejudice the jury, 'who may be tempted to rely on evidence of propensity or of previous disposition as being indicative of guilt'

'forbidden reasoning'More prejudicial than probative

EXCEPTIONS
Heffernan'admissible in an exceptional category of cases where the evidence is highly relevant to an issue at trial.'The corollary of the rationale for exclusion - which is pure irrelevance - is that if it is in fact or in law relevant can be admittedChallenge has been to fashion a coherent formula with which to identify this elusive category of inclusion.

Makin v Attorney General for New South Wales [1894] AC 57 - seminal case
A married couple were convicted of murder of a baby they'd informally adopted. Found buried in the garden of their house. Prosecution presented evidence that other babies had been taken in by the
Makins in the same way and that their bodies had also been found buried in the gardens of houses they had previously occupied. Q was whether this was admissible.
Lord Herschell
GeneralIt is not competent for the prosecution to adduce evidence:Tending to show that the a has been guilty of criminal acts other than those covered by the indictment, to show that they are likely from his criminal conduct or character to have committed the offence on trial

ExceptionRelevant to an issue before the jury

Relevance?(i)

If it can shed light on the question of whether the acts constituting the crime alleged were designed or accidental

(ii)

If it can rebut a defence which would otherwise be open to the accused

Admitted that it is 'very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other'

Applying to case at hand:Relevant

Similarities: several other babies were obtained in the same way - upon payment of a sum inadequate for the support of the child for more than a limited period and the bodies were also found buried in a similar manner

EX:
Let's say A's defence was that there was no Mens Rea and it was accidental or there was no causation - if on previous occasions, there are facts that are close to the offence on trial that are sufficiently similar to connect A, this previous conduct may be relevant.
If something before has been deemed suspicious but accidental/ coincidental and the same facts arise again - credibility is seriously put at issue.
➢ Makin is not a historical novelty - it is the basis and is the authority for the general ban on character evidence

PREVIOUS CONVICTIONS
People (DPP) v DO [2006] 2 ILRM 61 - inadmissible
Quashed conviction of Appellant for sex offences due to the oppressive cross-examination condicted by prosecution. Appellant was a former teacher heavily involved in the scout movement - the prosecution barrister asked lots of questions about their sex life (when did you last have an erection,
have you ever been to match making festival etc) said in a very veering tone - appellant said he'd never engaged in sex because he is unmarried and for religious reasons. There was insinuations that he joined the scouts because he was interested in young boys
Hardiman JThe evidence of character was used in cross examination…deliberately and almost exclusively to establish his dispositionAspects of personal life that did not themselves have probative value were used to 'portray him as one who 'fitted the bill'' of a paedophile.

People (DPP) v Coughlan Ryan [2017] IECA 108 - admissible
Appellant convicted of false imprisonment of two men possibly to facilitate a robbery. The witness at trial was asked, when she first came across the A- she said 'whenever he got out jail last time'.
Obviously clear breach and implies he's been in jail several times. This relates to the question of what the judge is meant to do when a witness in court breaches a rule of evidence - they have two choices - to withdraw the jury which is a very exceptional decision1 or issue a curative decision/-1 (Dawson and Dawson v Irish Broker's association 1998) ''necessary to re-iterate…the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances' 'juries are much more robust and conscientious than is often thought' direction to disregard. Appellant asked the trial judge to discharge the jury on the basis that there could not be a safe conviction unless he did so.
TJ refused to do so and instead gave a direction to put it out of their minds.
Counsel gave a very robust statement of the trial judge's charge. He said the judge 'gave it the rub of an already dirty rag' and said that it is highly unfair that his client was in jail for insurance reasons and the judge's direction at trial was not robust enough. Accordingly, the judge added to the warning by saying that the offence he was on trial for was minor.
Mahon jJury should only be discharged where the prejudicial effect is significant, and it is not possible to counter that prejudicial effect by suitably warning or directing the jury.Juries have proven themselves time and time again to be willing and capable of heeding judicial warnings and instruction and of acting appropriately in response thereto

This is quite ridiculous - juries have on the contrary, by empirical research, been proven to not be capable of properly considering curative directions (Jackson article) and also juries deliberations are in secret primary consideration'the extent of the prejudicial effect of the inadmissible evidence on the jury and any like consequential undermining of the accused's right to a fair trial.'The prejudicial effect in the words referencing the imprisonment of the A more than once is significant and of considerable concern.Created real risk that the jury would approach its consideration of a verdict on the basis that either the A was not good person or had been to prison on more than one occasion for serious offencesThis is so despite the judicial instruction to the contrary.

Timing of the evidence?Risk is heightened by the fact the evidence was given at a very late stage in a very lengthy trial and shortly before the jury retired. - 'matter may still have been fresh in their minds.'Insufficient time for a fade factor to set in and thereby come to the trial's rescueThe nature of the offences at trial might reasonably have suggested to the average lay person that the appellants previous convictions were unlikely to have been for minor offences

Suggests that If the evidence was given at an earlier stage of the trial it would've been different -
again this is problematic - something so stark/ the extent of its prejudicial effect - would probably not fade with time and not be forgotten
People (DPP) v Murphy [2015] IECA 201 - admissible TJ refused to discharge a jury where the victim of an assault referred to the fact that the A and the co-accused had previous convictions
Sheehan JAppellate courts should be slow to interfere w TJ decision not to discharge'the impermissible evidence which crept into this case was of limited significance in the overall context of the caseSaid the case really boiled down to the question of whether or not the jury could rely on the identification evidence of a Garda.

That's a bit of a cop-out - its really easy to just say that it is insignificant in the context, but the risk arises regardless of what the primary question in the trial is - the point of this evidence being excluded is that it is NOT relevant to the conviction at hand, not because it is of relevance to one of the primary questions - the point is that it may sway the jury in terms of the verdict even though it has nothing to do with the offence at hand.

SYSTEM/ BACKGROUND EVIDENCE
TO SHOW RELATIONSHIP BETWEEN VICTIM AND ACCUSED
Attorney General v Joyce and Walsh [1929] IR 526
Martin Joyce and Annie Walsh convicted of Annie's husband's murder.
Witness gave evidence that martin Joyce had put guano in milk that went into the deceased's tea and it was done so with Annie's knowledge before. Guano is bird excrement. This was not connected w events leading up to murder - it occurred significantly earlier than the death of the husband
Argued that this showed that Martin and Annie had ill-will towards the deceased
Appeal - inadmissible bad character evidenceIt formed a part of one entire transaction which was under investigation by the juryIt presented one aspect of the relations existing between the accused and the deceasedThe fact that it occurred a long time before the deceased died would affect the weight to be attached to it by the jury, but it is not sufficient to necessitate its entire exclusionIll-will by the parties a considerable amount of time before the conduct of the offence admissible - relevant

BACKGROUND EVIDENCE - BAD CHARACTER EVIDENCE ADMISSIBLE IF IT IS COLLATERAL
AND UNAVOIDABLE IN EXPLAINING RELEVANT CONTEXTAL EVIDENCE
Attorney General v Kirwan [1943] IR 279 - absolutely relevant to the rest of the evidence

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