Due Course of Law & Due Process Flashcards
1
Q
(a) Vague Offences
King v Attorney General [1981]
A
- S.4 Vagrancy Act 1824 created an offence of loitering with intent in public place.
- K charged with loitering w intent to steal so challenged the act’s constitutionality under Art 38.1
- Held unconstitutional: the ingredients of the offence and method of proof were vague and arbitrary.
2
Q
(a) Vague Offences
McNamee v DPP [2017] Case Note HC
A
- Rule 3 Prisoners Temp Release Rules: On TR prisoners are subject to condition that they keep the peace and be of good behaviour.
- S.6 CJ Act 1960 states a person on TR is deemed unlawfully at large if they breach a condition to TR.
- M granted TR subject to such condition & acknowledged the conditions in writing. But 6 months after release he was charged with trespass and under s.6 CJ Act 1960 for being unlawfully at large.
- Sought leave for JR to challenge ‘unlawfully at large’ as so vague it’s incapable of trial in due course
- HC refused: App premature, M failed to swear the grounding affidavit and no evidence he was not on notice of the requirement not to commit the offences in question on TR.
3
Q
(a) Vague Offences
McNamee v DPP [2017] Case Note CA
A
- CA held person charged is entitled to know w a reasonable degree of precision with what he is charged
- Applicant charged that “you broke a condition of your release by failing to be of good behaviour by attempting to commit offence of trespassing. Tried arguing “Fail 2 be of good behaviour” too vague
- CA Decision: satisfied M could have no doubt as to what constituted the activity which was said to have fallen foul of the requirement: Offence ingredients were not arbitrary, vague, related to rumour.
- Held a condition of good behaviour involved a requirement not to breach the criminal law.
4
Q
(b) Strict Liability / Absolute Liability
CC v Ireland [2006]:
A
SC held s.1(1) CL Am Act 1935 inconsistent as it provided for crime of absolute liability. Offence: Statutory rape of girl under 15. Guilty regardless of your belief about her age (if over
17/not). SC held unconstitutional by reason of absolute elimination of any defence of honest mistake.
5
Q
(c) Presumption of Innocence and Reverse Onus Presumptions
Hardy v Ireland [1994]
A
- Reverse onus presumption at issue in s.4(1) Explosive Substances Act 1883 which said person shall be guilty of possession unless he can show he made it/had in possession/under control for lawful object.
- He argued this reversal offended the presumption of innocence, but the SC rejected this.
- SC held DPP still had to prove (a) possession (b) knowing possession (c) possession/control was in circs to give rise to reasonable suspicion possession not for a lawful object beyond reasonable doubt
- H argued to escape liability, he had to negate (c). But SC said (1) nothing in constitution to prevent reversal/offend due process and (2) onus is only in an excusatory context like not guilty by insanity
6
Q
(c) Presumption of Innocence and Reverse Onus Presumptions
O’Leary v AG [1995] Upheld by HC
A
- S.24 Offs Ag State Act 1939: if person found in possession of certain incriminating docs such would be evidence, until the contrary was shown, that one was a member of an unlawful organisation.
- S.3(2) Offs Ag State (Am) Act 1972: Statement of garda that he believes the accused was a member of an unlawful organisation shall be evidence that he was such a member.
- Argued these provisions offended against the presumption of innocence.
- HC again rejected this was an unconstitutional reversal of the onus: Held the s.3(2) statement is evidence and like all evidence has to be weighted and considered and the section can’t be construed as meaning the court of trial must convict in absence of exculpatory evidence.
- NB: It seems a reverse onus presumption only unconstitutional where it requires court to convict on basis of the presumption. If there’s a possibility of acquittal despite the presumption, no difficulty.
7
Q
(c) Presumption of Innocence and Reverse Onus Presumptions
Rock v Ireland [1997]
A
- Challenge to s.18-19 CJ Act 1984 on basis they infringed the right to silence.
- S.18 allowed inferences to be drawn at trial for failure to explain matters on arrest such as presence of object/mark on clothing/him which Garda reasonably believed may be attributable to participation.
- S.19 said adverse inferences can be drawn from failure to explain presence at place. But also (i) failure can only be used in corroboration of any evidence (2) only such infs ‘as appear proper’ taken into acc
- Thus purely a matter for court/jury to evaluate infs and give weight only if they considered it proper to
- Held court must have regard to principles of constitutional justice and D’s right to a fair trial in
deciding so court is under a constitutional obligation to ensure no improper/unfair infs were drawn.
8
Q
(d) Aspects of Trial Procedure: Right to Cross-Examine Evidence
Re Haughey [1971]
A
A person has a right to cross-examine evidence.
9
Q
(d) Aspects of Trial Procedure: Right to Cross-Examine Evidence
Donnelly v Ireland [1998]
A
- No right to have face to face confrontation with a witness. SC held the key aspects of the right are:
(1) The ability of the jury to assess the credibility and demeanour of the witness and
(2) Allowing the accused an opportunity to rigorously cross-examine evidence - It held that video-link evidence satisfies these requirements.
10
Q
(d) Aspects of Trial Procedure: Right to Cross-Examine Evidence
JF v DPP [2005]
A
- Issue: whether a V in child sex abuse case should be made to do medical exam at the accused’s behest.
- Held it deprives him of the opportunity “effectively” to present his case through an expert and right to
give rebutting evidence. Refusing access to V also thwarts ability to conduct effective cross-exam.
11
Q
(e) Undue Delay-Cases Other than Child Sex Abuse Cases
State (O’Connell) v Fawsitt [1986]
A
- Held a person charged w criminal offence has a trial with reasonable expedition. Held in deciding to prohibit a criminal trial for delay, had to strike balance bw rights of accuse and rights of community:
(1) Length of delay
(2) Reasons given by the prosecution to justify the delay
(3) The responsibility of the accused for asserting his rights and
(4) The prejudice to the accused - F charged in 1981 but not tried until 1985 (4-year delay). As there was no good reason for the inordinate delay, SC held the trial couldn’t proceed.
- As important defence witness had died, the accused couldn’t be guaranteed a fair trial.
12
Q
(e) Undue Delay-Cases Other than Child Sex Abuse Cases
McFarlane v DPP [2008]
A
- 5 Jan 1998 charged w abduction, but due to M bringing JR proceedings, actual trial not til 2006.
- HC held no evidence anything had occurred since 1999 that prejudiced his capacity to defend himself.
- Held it was the decision of M to bring JR proceedings that caused the extensive delay. While delay in
delivery of JR proceedings, insufficient to prove there was actual prejudice of rights under Art.38.1
13
Q
Summary Trials
Nash v DPP [2012]
A
- HC engaged in balancing exercise & refused injunction to restrain murder trial on grounds that delays and adverse publicity didn’t preclude a fair trial and were outweighed by public interest in having the issues of guilt or innocence in a brutal double murder case determined in a due course of trial.
- Upheld by SC: guilt/innocence should be determined by a full trial on the merits.
- To be prohibited, the culpability of prosecution in delay must be so serious that the effect is to disturb
the important const value that guilt / innocence of accused should be determined in a full trial
14
Q
(f) Undue Delay: Child Sex Abuse
B v DPP [1997]
A
- TEST: Whether, by reason of delay, there’s a real risk an accused would not obtain a fair trial.
- Man accused of sexually abusing his 3 daughters from 1963-1973. Complained in 1992.
- Denham J listed special considerations applying to delay in child sex-abuse cases:
(1) Was the relationship between the parties one of trust?
(2) Did the accused exercise dominion over the V effectively preventing him from complaining?
(3) Did the State contribute to the delay?
(4) Has the passage of time nullified the accused’s ability to raise alibi evidence? - Held delay was due to dominance of F over them and State no contribution. Trial started in 1994.
Issues: (i) Too lenient on C (ii) Case just focuses on reason for delay and assumes allegations are true
15
Q
(f) Undue Delay: Child Sex Abuse
JOC v DPP [2000]
A
- Rejected that prejudice could result from the death of his wife who could’ve given evidence as to number of visits by complainant and possibility the offence could’ve taken place.
- But court was willing to give more weight to testimony of wife and expressed concerns re law in the area and the presumption that events alleged actually occurred and focus on reasons for delay only.
- Where there’s physical evidence, it allows an assertion to be tested. If none, case turns on circs.
- Big time lapse (20 years) not only has an effect on memories makes it almost impossible to clarify the surrounding circumstances.
16
Q
(f) Undue Delay: Child Sex Abuse
JL v DPP [2000]
A
- Court undertook more rigorous analysis of issue of prejudice. Identified 3 key points re delay:
- (1) due to the passage of time, more likely alibi evidence would be unavailable (2) there may be a risk that the V misperceived the sexual act and lack of medical evidence could be prejudicial and (3) it was alleged incidents took place in a caravan but doubt re whether acc still owned one at time of act.
17
Q
(f) Undue Delay: Child Sex Abuse
DD v DPP [2004]
A
- Geoghegan J said above cases don’t excuse delay merely bc V had food reason not to complain earlier
- Need to show an inhibition preventing complaining arising directly from the offence.
18
Q
(f) Undue Delay: Child Sex Abuse
H v DPP [2006]
A
- Inquiry not what were reasons for delay in bringing claim, but simply will accused receive a fair trial?
- Explanation: Court focuses on the the consequences of the delay in terms of identifiable prejudice to the accused from the circumstances and the resulting real or serious risk of an unfair trial.
