Opinion evidence and bad character evidence

Question 1

are witness allowed to give their opinion?

Answer 1

Witness are not allowed to give their opinion because they can be prejudice themselves. We do not know what their intentions are. Their opinion might be ill-funded, mistaken and inconsistent

Question 2

who can draw inferences from the facts?

Answer 2

Judge and jury are the ones meant to draw inferences from the facts

Question 3

when can non-experts give their view?

Answer 3

Non-experts may give their view where it so intertwined with the facts they are relaying that it would be virtually impossible to separate the two. Witnesses may, for example, describe someone as in an agitated state.

Question 4

what was held in the case of AG (Ruddy) v Kenny?

Answer 4

in AG (Ruddy) v. Kenny (1960) ILTR 185, the SC held that an ordinary witness may give an opinion on an accused’s fitness to drive in the context of drink driving.

While Healy is critical of this decision, he notes that the Court also suggested a witness could testify as to matters of identity, the apparent age of a person and speed of movement.

Question 5

Certain statutory exceptions provide for non-expert testimony to be adduced in relation to subversive crime and organised criminal activity.

Answer 5

Section 3(2) of OAS (Amdt) Act 1972 allows a garda not below the rank of Chief Superintendent to state his belief that the accused was at a material time a member of an unlawful organisation. The constitutionality of this provision was upheld in People (AG) v. O’Leary

Section 7 of the CJ (Amdt) Act 2009 provides for the opinion of a member of AGS as to the existence of a particular criminal organisation.

Question 6

examples of experts in criminal proceedings?

Answer 6

Experts commonly called upon in criminal proceedings include forensic scientists, pathologists, DNA analysts, and fingerprint experts.

Question 7

is a garda an expert?

Answer 7

A garda is not normally considered to be an expert, although s/he may give information on the scale and nature of the drugs found in the possession of the accused (R v. Bryan)

Question 8

is there a definition on who an expert is?

Answer 8

in Ireland, to date no set definition of an expert, statutory or otherwise, has been adopted, and it can be seen that the courts have adopted:

‘a very broad and flexible approach to what constitutes an expert for the purposes of giving expert evidence. The courts have continuously attempted to explain the parameters of what constitutes an expert witness, but have resisted setting out a formal definition’

Question 9

Dangers of forensic evidence - Birmingham 6 case

Answer 9

Birmingham 6 case

6 irish men sentenced to life in prison
2 bombs and 21 people died

Expert witness was scientist - 99% sure that they were handling explosives.

Tests produced a positive result for nitrocellulose as well as nitroglycerine.

They got the substance on their hands from playing cards

Question 10

Dangers of forensic evidence - Sally Clark

Answer 10

2 children died within a week from each other

She was convicted on their murder

Expert said that 1 in 73 million chance (chance of being innocent) that both children in the same family would die of sudden death syndrome.

Question 11

Dangers of expert witness - earprint evidence

Answer 11

Murdered in her house with a pillow case

Ear print was found on the window

Policeman who had an interest in ear samples said that it was a criminal in the area known for robberies

Can ear prints be distinguishable between people ?

Reliability of ear evidence was thrown out

Question 12

expert witness Reform - US position and english position

Answer 12

Us position - Daubert test - judge has to review the evidence before it is shown to the jury. Judges are not experts to determine if the evidence is reliable

English position - expert witness have duties - holds them more accountable and have to abide by them when they are giving evidence.

LRC said ireland should take Uk aproach ( 4 duties they suggested) and statue definition

Question 13

what was held in the case of R v Davies?

Answer 13

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.

Question 14

s.34 Criminal Procedure Act 2010

Answer 14

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.

Question 15

what was held in the case of R v Robb?

Answer 15

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.

Question 16

what was held in the case of R v west?

Answer 16

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.

Question 17

what 7 points were made about expert evidence in the case of Natural Justica Compania Naviera SA v Prudential Assurance Co. Ltd

Answer 17

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.

Question 18

what was held in the case of R v Turner?

Answer 18

The fact that an expert relies upon must disclosed to the Ct., they must also be proven.

Question 19

what was held in the case of DPP v Ryan?

Answer 19

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.

Question 20

Automatism

Answer 20

S. 5(1) and 6 Criminal Law Insanity Act

Needed for insanity and diminished responsibility. Also often used for non-insane automatism.

Question 21

Provocation by expert witness

Answer 21

• Generally inadmissible.
• R v. Turner
  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
  Approved this – it is confined to insanity. An exception is for battered wives’ syndrome.

Question 22

hypnosis

Answer 22

NC v. DPP

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.

Question 23

S.4(1) Competitions Amendment Act 1996

Answer 23

Expert evidence for breach of competition rules

Question 24

first principle for bad character evidence

Answer 24

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.

Question 25

what did the HOL explain about the first rule in Boardman v DPP?

Answer 25

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.

Question 26

second principle for bad character evidence

Answer 26

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 the 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.

Question 27

what was held in the case of Boardman v DPP regarding the first and second principle?

Answer 27

Where one principle applies, the other does not.

Question 28

what are the facts of AG v Kirwan?

Answer 28

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.

Question 29

what are the facts of R v Smith?

Answer 29

Def. charged with Murder of his wife. He claimed it was an accident. Evidence was admitted that this had
happened to 2 previous wives.

Question 30

what are the facts of R v Sims?

Answer 30

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).

Question 31

what was considered by the HC in B v DPP?

Answer 31

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.

Question 32

what is similar fact evidence defined as?

Answer 32

Evidence that the accused committed a crime on one occasion. This evidence is inadmissible to prove he has a propensity to commit the crime or will do it again.

Question 33

what is System evidence defined as:

Answer 33

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.

Question 34

what are the principles that

Answer 34

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 of the particular features
common to each other
ii. Where the charges are against one person only, to establish the offences were committed.

Question 35

what was held in DPP v Shannon?

Answer 35

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.