Trial of Offences

Question 1

Article 38.5

Answer 1

No person shall be tried to any criminal charge without a jury

Question 2

Re Haughey

Answer 2

Trial by jury for non-minor offences is mandatory unless one of the three exceptions

1) Minor offences
2) Special courts such as SCC
3) Military tribunals

Question 3

DPP v O’Shea

Answer 3

Henchy J described the right to a jury trial as a safeguard to the people

Question 4

Curtis v Attorney General

Answer 4

Accused had been charged with offences relating to fraudulent evasion of customs contrary to Customs Consolidation Act

Argued that determination of value of goods was a matter for the District Court judge before he was sent to trial by jury

Court agreed

Question 5

DPP v Conroy

Answer 5

‘it is…a well entrenched principle of trial by jury that in circumstances such as arose in this case it is for the judge, and for the judge alone, to rule on the admissibility of the statements’

Question 6

DPP v Tobin

Answer 6

Foreman disclosed in a rape and sexual assault trial that one of the jury had been a victim of sexual assault but did not feel like it affected her

reasonable and fair-minded observer would consider that there was a danger of unfair trial

Question 7

De Burca

Answer 7

Principles or jury selection:
1) It is not enough to show that a particular class or particular classes are not represented or are under-represented
2) Not unconstitutional for a jury to end up unrepresentative, so long as the selection process included a diverse pool
3) If the legislation for jury selection, by intent or operation, leave out a potential pool of jurors, it would ‘lack constitutional completeness’

Question 8

Heaney v Ireland

Answer 8

Limitations on right to silence should be subject to a proportionality test

Question 9

DPP v JD

Answer 9

D argued that gardai failed to question him about the alleged offences which deprived him of the opportunity to answer for himself

Court said that the defendant **could have put forward his side of events at any stage **

Question 10

Rock v Ireland

Answer 10

Concerned where legislation allowed for drawing of inferences

Held not unconstitutional as it was not a disproportionate invasion of right to silence

However, can never be used to convict someone; must be evidence to support

Question 11

DPP v Finnerty

Answer 11

Concerned general drawing of inferences not based on legislation

SC held that it was **not permissible, without express statutory provision, for an inference to be drawn from such silence **

Question 12

Principles in DPP v Finnerty

Answer 12

1) Where nothing of probative value has emerged as a result of detention, but is thought desirable that the court should be aware, the court should be told simply that there was nothing of probative value

2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted

3) In the case of trial by jury, the trial judge shall make no reference to the fact that the accused refused to answer questions in detention

Question 13

Sweeney v Ireland

Answer 13

Gardai could not get people to come forward re Offence Against State Act 1998

Legislation held that withholding of crucial witness information was a crime contrary to the act

Court held that there was no way that the legislation would have meant to have an accessory come forward and criminalise themselves

Question 14

King v AG

Answer 14

A criminal offence must be defined with **‘precision and clarity’ **

Question 15

Dokie v DPP

Answer 15

Legislation defining the criminal offence must be obvious to the reasonable person

Question 16

Douglas v DPP

Answer 16

‘the offences of causing scandal and injuring the morals of the community are hopelessly and irredeemably vague; they lack clear principles and policies in relation to the scope of what conduct is prohibited

Question 17

CC v Ireland

Answer 17

Sexual relations with a girl under 15

Court held that the legislation was** unconstitutional as it lacked any possibility of defence of an honest mistake **

Question 18

Hardy v Ireland

Answer 18

Applicant argued that section 4(1) of the Explosive Substances Act 1883 infringed on his right to presumption of innocence

Legislation read: ‘unless he can show that he…had it in his possession under his control for a lawful object, be guilty of a felony’

Court disagreed

Question 20

DPP v Forsey

Answer 20

Concerned corruption offence

Section said that accused must disprove that he got money corruptly

Essentially, he had to prove his innocence rather than have it disproved

Held unconstitutional

Question 21

People v Healy

Answer 21

Person in detention must be ensured they are ‘aware of his rights and has the independent legal advice which would be appropriate in order to permit him to reach a truly free decision as to his attitude to interrogation’

Question 22

People v AD

Answer 22

‘The duty of the Member in charge is that of an independent individual who is there to protect and vindicate the rights of an accused man’

Question 23

People v Buck

Answer 23

Must be a** causative link** between the violation of a constitutional right of access to legal advice and the making of the admission

Question 24

People v O’Brien

Answer 24

Argued that the Gardai deliberately tried to access a solicitor who would not get there for a long time so they could get statement

Seven hours passed

Held ‘the detention remained unlawful so long as the breach of the constitutional right continued. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be unlawful’

Question 25

DPP v Gormley

Answer 25

Established right to early access to a lawyer and not to be interrogated until they consulted with one (can be through phone call - no need to wait for presence)

Question 26

Lavery

Answer 26

SC held that the right to reasonable access does not entitle the accused to have their solicitor present during interrogation

Question 27

DPP v Barry Doyle

Answer 27

'the right is one of access to a lawyer, not of the presence of a lawyer during an interview'

Question 28

JM v Coolock Garda Station

Answer 28

No right for physical presence of solicitor for minors However, can allow if intellectually disabled or vulnerable

Question 29

State v Fawsitt

Answer 29

Held that in deciding whether or not to prohibit a criminal trial on the grounds of delay, the relevant factors are: 1) Length of the delay 2) Reasons given by the prosecution to justify the delay 3) The responsibility of the accused for asserting his rights 4) The prejudice to the accused

Question 30

McFarlane v DPP

Answer 30

Court laid out principles for when a prosecutorial delay should lead to prohibition: 1)** Inordinate, blameworthy or unexplained** prosecutorial delay 2) Prosecutorial delay of this nature may be of such a degree that a court will **presume prejudice** and uphold the right to an expeditious trial by directing prohibition 3) Where the delay has been significant but less than that envisaged in (ii), 'the court will **engage in a balancing exercise** between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial' 4) **Actual prejudice** caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition

Question 31

DPP v Nash

Answer 31

Three types of culpable delay: 1) One which is such that there may be a sufficient** breach of constitutional fairness** so as to make it proportionate to prevent the proceedings from going ahead 2) A **lapse of time** which had rendered it impossible that a true trial on the merits can be conducted and has placed whatever controversy might have been the **subject of the trial beyond the reach of fair litigation** 3) Delay where the trial is still possible but where the trial is **significantly different due to the lapse of time**

Question 32

B v DPP

Answer 32

Test for undue delay is whether, by reason of delay, there was a** real risk that the accused person would not obtain a fair trial**

Question 33

H v DPP

Answer 33

No longer focuses on dominance or reason for delay

Question 34

JK v DPP

Answer 34

Applicant was an 84 year old man accused of sexual offences against his niece, nephew and grand-niece Alleged offences happened during a Christening, and accused argued that a particular person could be an** alibi** for him, but was now dead Court held that there were many **other family members there so it was not a sufficient lack of fair hearing **

Question 35

K v Judge Moran

Answer 35

Court accepted that, when considering the circumstances of the case, it could be unjust to put someone on trial such as - Lengthy lapse of time - Old age - Sudden emergence of extreme stress by trial - Severe ill health

Question 36

GC v DPP

Answer 36

Alternative remedies to prohibiting trial: 1) Open** acknowledgement** of breach 2) Prosecution taking** immediate steps to ensure an early trial for the applicant ** 3) Potential **damages** from the breach

Question 37

Bernotas v Commissioner of An Garda Siochana

Answer 37

Applicant sough prohibition as he was accused of a number of offences as a minor, but was now at full age Claimed that he was now deprived of the advantages that he would have had if the trial had taken place when he was a minor due to undue delay Public interest in prosecution outweighed personal right

Question 38

Furlong v DPP

Answer 38

Applicant was 17 when accused Delay was the fault of the police Held that if the matter was dealt with in a timely manner, he would not have lost his benefits

Question 39

JS(T) v President of Circuit Court

Answer 39

Although courts accepted that old age may be a factor to prohibit a trial, it really depends on the circumstances

Question 40

DPP v CC

Answer 40

Accused was appealing on grounds that his trial was unfair due to the lapse of time (44 years) and the death of a key witness SC dismissed the appeal, stating that the **lost evidence was merely a lost opportunity** rather than real line of defence Court should look at how significant is the lost evidence and what it would mean to the accused Also held that **absence of a witness does not render the trial prohibited if their evidence, although relevant, is not an essential proof **

Question 41

DPP v Wharrie

Answer 41

List of factors the court considers to prohibit a trial due to pre-trial publicity: - nature, extent and duration of coverage - immediacy of publication to the trial and proceedings - Extent to which the publication concerns matters not made to the jury

Question 42

Zoe Developments

Answer 42

Adjourned for six months for fade factor

Question 43

AG v O'Brien

Answer 43

Where evidence is obtained as **a result of a deliberate or conscious breach of a constitutional right**, it must be excluded, save in extraordinary excusing circumstances

Question 45

DPP v Cash

Answer 45

Disagreed with Kenny Evidence being thrown out because of small errors Kenny needed to be looked at

Question 46

DPP v JC

Answer 46

An inadvertent breach of constitutional rights in the obtaining of evidence will not lead to the exclusion of that evidence at trial while knowing, reckless or grossly negligent breaches of constitutional rights will lead to such an exclusion, **except in exceptional circumstances'**

Question 47

DPP v Doherty

Answer 47

Appeal against a conviction for harassment Data was gathered by telecommunications service provider breaches of constitutionally guaranteed rights would potentially engage the more restrictive exclusionary rule as recently modified in the JC (No.1) case'.

Question 48

DPP v Kavanagh

Answer 48

Garda Superintendent requested access to mobile phone data based on 1983 Postal and Telecommunications Act rather than the more recent 2005 Terrorism Act Applied DPP v JC and focused on lack of deliberate and conscious violation Judge exercised his discretion and **admitted evidence**

Question 49

Braddish v DPP

Answer 49

Failure to preserve CCTV footage was seen as a breach of fair trial

Question 50

Dunne v DPP

Answer 50

Held that the gardai's obligation was to seek out evidence as well as preserve it

Question 51

Bowes and McGrath

Answer 51

Gardai failure to carry out a full technical examination of a car was not a violation to fair trial No real loss of opportunity as it was to do with drugs in a car rather than, for example, a car accident

Question 52

McFarlane

Answer 52

Photos of evidence will suffice if physical evidence lost

Question 53

Ludlow

Answer 53

Summary of principles governing these cases Each case requires to be determined on its own particular circumstances. 1) It is the duty of the Court to protect due process. 2) It is the duty of An Garda Síochána to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence, as far as is necessary and practicable. 3) The duty to preserve and disclose, as qualified by Lynch J. in Murphy v. D.P.P., cannot be defined precisely as it is dependent on all the circumstances of the case. 4) The duty does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources and must be interpreted in a fair and reasonable manner on the facts of the particular case. 5) In the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the Gardaí to have a forensic report on the object. 6) However, an accused should, in general, be given an opportunity to examine or have examined such evidence. 7) If the evidence no longer exists, the reason for its destruction is part of the matrix of the facts, but it is not a determinative factor in the test to be applied by the court.

Question 54

Wall v DPP

Answer 54

Gardai never carried out examination of fingerprints on steering wheel 'It is one of many factors which may be considered by a trial judge while ensuring that there is a fair trial'