Evidence Practice And Principles The Judges Role In Criminal Proceedings Notes

THE JUDGE IN CRIMINAL PROCEEDINGS ROLES: • • • • • Decide on admissibility of evidence Ensure rules of evidence are complied with (are they complying themselves?) Monitor behaviour of other courtroom actors Withdraw cases from jury - Galbraith Sums up to jury on the law and the facts prior to deliberation. DISCRETIONARY POWERS: • • • • Exclude relevant evidence where more prejudicial than probative Withdraw case if insufficient evidence React to the introduction of inadmissible evidence Summing up RARE: • • • Summon witnesses not called by either side Ask questions of witnesses (relate to Jackson article) Leave a defence to the jury that has not been raised in argument: Cronin No.2 1. DISCRETION TO EXLCUDE RELEVANT EVIDENCE When the prejudicial effect outweighs its probative value: • Where prejudicial effect outweighs probative value, the constitutional right to a fair trial and fair procedures mandate the court to exercise the general discretion to exclude relevant evidence The People (DPP) v Meleady [2001] 4 IR 16 Geoghegan J Although there is no authority to permit a criminal court to admit evidence which is relevant'judge, as part of his inherent power, has an overriding duty in every case to ensure that the accused receives a fair trial.''Always has a discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.' When is it more prejudicial than probative? DPP v JG 2018 SC'Is one on which different judges may legitimately reach different conclusions' Arbitrary? People v Coddington 2001 CA Applicant was convicted in the Circuit Court of possessing cannabis w intent to sell or otherwise unlawfully supply to another. Sentenced to 5 ½ years. The facts: accused was seen throwing plastic bags into a ditch by a nearby resident. She approached him, he left, then she called guards and they found four bags containing hash. The applicant returned to the location where they found the hash and accused was identified as the driver. Then got a search warrant and found a large sum of money in his house. A was arguing that the evidence of the cash should not be admitted because it is disproportionately prejudicial - not very probative as to the actual offence because you can have cash without necessarily being a dealer, and highly prejudicial because it indicates that they are a dealer. He argued that it turned the burden of proof around and demanded that he come up with an innocent explanation as to why that money was in his gaff and in doing so invited inferences from the failure to provide such an explanation in custody and at trial. Counsel argued that it was common knowledge that dealers have large amounts of cash:this is a reason why the finding of a substantial cash in a case such as this may have probative value and be admissible.It is a matter for the jury to decide if such inferences can be drawn with regard 'to the totality of the evidence.'The admissibility of this evidence in the first place, befalls the judge - it is within his discretion There was also debris of cannabis resin on the notes - primary reason for admission but did conceded that he would have allowed it anyway'where an accused…expressly agrees that his trial should proceed on the basis of evidence already tendered to the jury it is not open to him, on appeal, to challenge the verdict on the grounds that…the evidence had been admittedunless it gives rise to some essential flaw in the trial affecting its fundamental fairness.' However, on the second grounds - a new trial was ordered because the judgereminded jury of omission to give evidence in the context of failure to explain the presence of money w/out any direction that they cannot draw adverse inferences from this omission (central tenet of innocent until proven guilty)inviting the jury merely to speculate in their own right is insufficient if preceding it is a direct recognition that the accused failed to innocently account for a vital piece of evidence against him.'they say that there may be a totally innocent explanation as to why the cash was in the house. You are invited then to speculate as to what the perfectly innocent explanation may be. You have no evidence from the accused in so far as that is concerned…there is no contest that it was his money, and yet you are invited to speculate as to what the explanation here might be for the money being there.' - but you cannot draw any inferences from an omission to give evidence for that explanation. - needed. D.P.P v FinnertyThe exercised by an accused of right not to give evidence in his own defence cannot lead to any inferences adverse to him being drawn by the Court and that…the jury must be expressly so advised.' McGrath:Cases surmises the circular nature of the balancing test…'the basis of the probative value is also the source of its prejudicial effect.' The question is of proportion - the question is not whether the evidence is probative or whether it is prejudicial - it is whether it's UNDULY prejudicial People (DPP) v Hussain [2014] CA Convicted of assault offences. The A encountered his estranged wife w another man and thought they were having an affair. He assaulted her viciously. She had injuries on throat and abdomen. The issue as regards to prejudice was whether the admission of photos of the injuries into evidence was unfair CLARKEThe idea of discretion places an extra barrier of difficulty for accused's arguing this on appeal:Admission is 'principally a matter for the trial judge…in the light of the state of the evidence as a whole and the issues which have emerged at the trial' Thus,TJ also in the best positionInterference by appellate court should only happen 'in a very clear case' Live issue in the case surrounding the amount of abdominal injuries and the precise way in which they occurred, thus to assist the jury In addressing these;open to TJ to view that 'contemporaneous photographs of the injuries might be of assistance to the jury' People (DPP) v PM [2018] CA Child that was sexually abused 20 years before going to the authorities. Contended she'd told her mum who didn't believe her when it happened. The event was that the victim called over to the appellants house which neighboured hers to borrow a hairdryer and was sexually assaulted. The relevant count was at the time indecent assault. Victim says she remembered when A was removing his penis from her mouth there was a mole on it and said it was at the base of the penis. His genitals were photographed and shown at trial and the mole was not at the base of the penis, it was at 'mid-shaft level'. Defence argued that such photos were inadmissible as the prejudicial effect outweighed their probative value. DPP argued that they are probative merely because they support the evidence and that the discrepancy only goes to the weight of the evidence and not its admissibility - the jury are open to decide for themselves the amount of weight to attach with the inconsistency in mind. Inconsistencies are for the jury to resolve and not to be excluded entirely. Edwards J agreedthere was evidence from a doctor confirming that there was a mole on his penis as welllocation - detail 'this inconsistency would only go to the weight rather than to admissibility''the type of inconsistency that was quintessentially a matter for the jury to resolve'Inconsistency on an admittedly important point of detail would not have automatically served to undermine the credibility and reliability of the complainant's evidenceOpen to conclude that while she was mistaken 'she was nevertheless both credible and reliable as to her core account'jury's prerogative to decide on the weight to attach and whether it is probative accordinglyarguing that they were 'of little or no probative value whilst simultaneously having a very significant prejudicial effect on the appellant…the prejudice accruing…was that the jury might well have attached considerable and undue weight'manifestly probative prejudicial?'It may have been prejudicial in the light of the complainant's evidence, but all relevant prosecution evidence is prejudicial'It was also potentially useful to the defence on account of the inconsistency - credibility Relevant because the evidence concerned a mole. Detailed inconsistency will often arise - Watergate argument here? if the court was to throw out evidence because it is inconsistent then there would be no point in having an adversarial trial anyway.Q is, is it so unduly prejudicial that it warrants depriving the jury of having it for consideration 2. JUDICIAL DISCRETION TO WITHDRAW THE CASE FROM THE JURY IF THERE IS INSUFFICIENT EVIDENCE • At the close of the prosecution case, common for counsel for the defence to seek a directed acquittal from the judge on the basis that there is no case to answer The test to be applied: R v Galbraith [1981] ENG When a judge is confronted with an application of no case - where there's no evidence that the crime committed there is no difficulty, it happens where there is evidence of a tenuous character LORD LANE CJA balance has to be struck between on the one hand a usurpation by the judge of the jury's functions and on the other the danger of an unjust conviction.' a. Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the caseTaken at its highest - to interpret it with the most substantial value possible b. Where the evidence is such that its strength or weakness depends on the view to be taken of a witness reliability, or other matters which are within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly convict - should allow the matter to be tried by jury GALBRAITH IN IRELAND People (DPP) v O'Shea [1983] ILRM 592 Finlay P One of the judges functions it to decide whether there is evidence'which if accepted by a jury could as a matter of law lead to a conviction.'Not as a matter of opinion e.g. credibility, reliability etc. Essential questions: ➢ Is there a gap in the evidence? ➢ Is there some vital link in the chain of proof missing? ➢ Where an apparent link in the chain of proof isn't missing, but Is 'so tenuous that it would clearly be perverse for a jury…to act upon it Clearly - perverse People (DPP) v Gilligan 1992 O'Flaherty J At the direction stage, the judge:Must be satisfied that there is a prima facie case, that does not require that it should accept or reject any particular evidence.'Looked at from the high point of view of the prosecution case.Galbraith approved People (DPP) v Buckley [2007] The judge should be concerned, after hearing the pros. Case and before deciding if the case shall proceed to the defence's side,'see whether the proofs necessary to make out the charge have been adduced.'Only with the question whether the 'technical nature of the elements of the offence have been reflected in evidence Without any defence to the contrary Not concerned with:Issues of credibilitySufficiency or quality of proof People (DPP) v M [2015] CA'the emphasis in Galbraith is on the primacy of the jury…as the sole arbiter of issues of FACT!!!!Vagueness, weakness, and inconsistency is precisely what the jury is for:'to assess the evidence and make of it what they will unless the state of the evidence is so infirm that no jury properly directed could convict upon it.'The bottom line of Galbraith is fairnessShould be an exceptional measure only resorted to, to avoid 'a manifest risk of wrongful conviction.' DenhamIf there is no evidence that an element of the crime alleged has been committed, the situation would be clear. The judge would have to stop the trial. That is not the case here…there is lengthy evidence from the complainant in which there are some inconsistencies. There inconsistencies are matters which go to issues of reliability and credibility and thus…. are solely matters for the jury.'The inconsistencies must be 'such to render it unfair to proceed with the trial' The People (DPP) v Campion [2018] SCJudge is not deciding whether or not the witness is reliable or truthfulDetermining…whether or not there is a case upon which a properly instructed jury could convict.'Credibility and the existence of a reasonable doubt wholly matter for the jury 'unless the guilty verdict would be considered perverse The People (DPP) v GH [2019] CA The appellant was convicted of the offence of threatening to kill under the NOAPA. The case was all about the words used naturally because it concerns a threat. The Mens Rea: intention or disclosure of an intention to cause serious harm or to kill and cause an apprehension in the eyes of the person - that they would be killed. The victim was a social worker. The A was a father of children who victim took into care. Victim gave evidence that the A said; a. I' going to kill you. You're fucking dead. I'm going to kill you I'm going to stab you. I'm going to find you and kill you. On the stand at trial, the victim said that the A actually said: b. You fucking cunt. I'm going to kill you. I'll see you around. I'm going to kill you, you dirty fucker. The victim's manager - witness: He said he heard: c. I will cut you. I will see you. But added that he wasn't sure that this was it The judge asked him to repeat and the A declined. Argued that these inconsistencies rendered it so infirm that no jury could properly convict Edwards JRefers to his own judgment in M - back to his condemnation of a commonly held misapprehension of Galbraith - that it should be withdrawn if weak/ inconsistent/ vague. Commenting on Galbraith:

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