Trial of Offences Flashcards
Article 38.5
No person shall be tried to any criminal charge without a jury
Re Haughey
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
DPP v O’Shea
Henchy J described the right to a jury trial as a safeguard to the people
Curtis v Attorney General
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
DPP v Conroy
‘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’
DPP v Tobin
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
De Burca
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’
Heaney v Ireland
Limitations on right to silence should be subject to a proportionality test
DPP v JD
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 **
Rock v Ireland
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
DPP v Finnerty
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 **
Principles in DPP v Finnerty
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
Sweeney v Ireland
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
King v AG
A criminal offence must be defined with **‘precision and clarity’ **
Dokie v DPP
Legislation defining the criminal offence must be obvious to the reasonable person
Douglas v DPP
‘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
CC v Ireland
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 **
Hardy v Ireland
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
DPP v Forsey
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
People v Healy
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’
People v AD
‘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’
People v Buck
Must be a** causative link** between the violation of a constitutional right of access to legal advice and the making of the admission
People v O’Brien
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’
DPP v Gormley
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)
Lavery
SC held that the right to reasonable access does not entitle the accused to have their solicitor present during interrogation
DPP v Barry Doyle
‘the right is one of access to a lawyer, not of the presence of a lawyer during an interview’
JM v Coolock Garda Station
No right for physical presence of solicitor for minors
However, can allow if intellectually disabled or vulnerable
State v Fawsitt
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
McFarlane v DPP
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
DPP v Nash
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
B v DPP
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**
H v DPP
No longer focuses on dominance or reason for delay
JK v DPP
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 **
K v Judge Moran
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
GC v DPP
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
Bernotas v Commissioner of An Garda Siochana
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
Furlong v DPP
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
JS(T) v President of Circuit Court
Although courts accepted that old age may be a factor to prohibit a trial, it really depends on the circumstances
DPP v CC
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 **
DPP v Wharrie
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
Zoe Developments
Adjourned for six months for fade factor
AG v O’Brien
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
DPP v Cash
Disagreed with Kenny
Evidence being thrown out because of small errors
Kenny needed to be looked at
DPP v JC
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’
DPP v Doherty
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’.
DPP v Kavanagh
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
Braddish v DPP
Failure to preserve CCTV footage was seen as a breach of fair trial
Dunne v DPP
Held that the gardai’s obligation was to seek out evidence as well as preserve it
Bowes and McGrath
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
McFarlane
Photos of evidence will suffice if physical evidence lost
Ludlow
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.
Wall v DPP
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’
