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trial in due course of law, Common theme is the trial court deal with it,…
trial in due course of law
constitution - 38.1
is an express right -trial in due course of law
category of offences
CC
absolute liability, strict liability, ordinary, can't have absolute liability for serious offences
Waxy O'Connors
strict liability very narrow defence, could accept Age card - regulatory offence - can be narrow
curtailment
presumption of innocence
O'Leary v AG
Hardy v Ireland
Heaney v Ireland
right to silence
membership of unlawful organisation
draw inferences
legislation
balance with other rights
delay
McFarlane
justice administered in public
access to courts
vagueness
important criminal offence is well defined and not vague
King v AG
loitering with intent- struck down - important that criminal offence defined with precision and clarity
Dokie v DPP
immigration act made it an offence for non-national to not produce papers unless could give
satisfactory
reason - too vague - reasonable would have been fine
Douglas v DPP
offence of offending modesty or causing scandal or injuring morals - too vague - no clear standard
unsuccessful attempts
Cox v DPP
offence of lewdly and obsencly exposing
penis
- mentioned penis so
sufficiently clear
McNamee
good behaviour (release from prison) sufficiently clear - clear legal term
PP
challenging
indecent assault on student -
no locus standi to challenge - someone with case on
margin
maybe could challenge on win
DPP v TN
2020 case - manager, secretary or
similar officer -
could give some guidance on what meant
Unconstitutionally obtained evidence
People v O'Brien
error in search warrant (wrong address) - test is it a concious and deliberate breach of rights, causal link between breach and evidence collected -
no extraordinary excusing circumstances
- on facts accidental - evidence admissible
DPP v Kenny
act which caused breach must be deliberate and concious -
evidence inadmissible if rights breache
d
DPP v JC
search warrant case, court split 4 to 3, O'Brien didn't go far enough, Kenny too far in limiting police power - victims right to have crimes prosecuted but also Gardai operate within the law
new test
burden of proof on prosecutor
explain why evidence admissible, prove any facts required to make evidence admissible
2 categories for breach of rights
deliberate and concious breach
evidence excluded unless extraordinary circumstances
the state of mind of people searching house and those further up chain relevant
not deliberate and concious breach
presumption of inadmissibility
rebutable if proven due to inadvertence
causal link
Gormley v White
- solicitor being present no difference
Walsh v O'Buachalla
blood obtained before solicitor arrived - held - no causal link as obliged to give sample anyways
3rd party rights
DPP v Flynn
convicted of murder, tried to exclude evidence due to breach of 3rd party rights, no standing to challenge evidence based on breach of other person rights
DPP v Lawless
evidence illegally obtained not unconstiutionally - up to trial judge
scope of exclusionary rule
DPP v Cash
fingerprints used for arrest, had been kept on database illegaly, difference between evidence used for arresting and that for court, able to use the
fresh set of fingerprints
collected when arrested
DPP v Hannaway
act required
ministerial approval to copy video footage
, not meant to involve Minister in such a routine part of evidence collecting and trial preparation
DPP v Gold
evidence obtained by
3rd party recording phone
call, no state involvement in breach of rights - up to trial judge to exclude or not
application to civil proceedings
CAB v Murphy
JC rules not limited to criminal process although
modified for civil process -
shift in standard to balance of probability from beyond all reasonable doubt
illegally obtained evidence
O''Brien
for discretion of the judge
extraordinary excusing circumstances
Freeman v DPP
saw accused
unloading
goods, who ran inside and slammed door, thought destroying evidence - admissible - thought going to destroy evidence
DPP v Delaney
thought
children in danger,
allowed to enter house
People v O;Brien
extraordinary excusing circumstance can include imminent destruction of vital evidence, rescue victim in peril, evidence obtained by search around lawful arest
Shaw
held longer out of concern for missing women, an incriminating statement admissible
Right to a solicitor
People v Healy
solicitor denied access to client until statement finished,
breached right of reasonable access to solicitor
People v O'Brien
wanted a solicitor, didn't name one, asked Garda for one, who recommended one knew would be delayed in arriving -
any statements before arrival inadmissible
right to be informed of right to solicitor
Pringle
no right to be informed
some doubts
Tracey v McCarthy
should be informed of right to legal aid
before any sentence imposed
for contempt
Coffee
evidence excluded as
not told had right to leave
DPP v Gormley and White
2 seperate cases heard together
Gormley
made admission before solicitor arrived -held -
right to not be interrogated before solicitor arrived
- US and ECHR influence - still issue if solicitor doesn't arrive within reasonable time
White
forensic sample taken before solicitor arrived - held
no requirment to wait for solicitor to take samples
DPP v McDonald
2022 case - forensic sample given when no statutory obligation to - held no right to legal advice different to Gormley due to objtective nature of forensic advice
right to have solicitor present during questioning
Lavery
obiter comment
no right to have solicitor during questioning
M(J) v Coolock Garda station
minor accused of drugs offence no right to have solicitor present
2014 - department of justice - allow solicitors be present during questioning
Gormley
noted obiter EU and ECHR developments
DPP v Doyle
person murder due to mistaken identity, confession when soliciotr not present in 15th interview, - majority held - no right to have solicitor present during questioning (differences to US more safeguards, different system) 1 dissent saying right exists and of fundamental importance, other judges thought might exist but no causation so didn't explore as confession fully informed and voluntary
interview conduct
Madden
unfairly conducted interview can be excluded
Right to solicitor or barrister
McSorley v Governor of Mountjoy
advice of constitutional right to legal aid if proposing to impose custodial sentence
Carmody
right to apply to have counsel
ineffective representation
DPP v Shaugnessy
claimed his original solicitors didn't follow his instructions - SC held - right to not be represented by incompetent counsel, applies to pre trial and during trial conduct - presumption is that they are competent 0 high bar - neeed to show misconduct outside of range of what a competent advocate would say
right to self-representation
DPP v Sheehan
wanted to discharge legal team, never gave reason despite being asked - later said had wanted to self-represent - held
no breach
- could have said at time wanted to represent himself -
don't want it used as delaying tactic
Duty to seek out and preserve evidence
duty on Gardai to seek out and preserve all relavent evidence
Braddish v DPP
accused of robbery due to CCTV, confessed but he later disputes, CCTV not preserve, Gardai under duty to preserve it till trial over - trial prohbited
Dunne v DPP
charged with robbery, unclear if CCTV ever collected, duty to collect evidence, trial prohbited
Bowes and McGrath
, Bowes accused of
heroin
possession in car, 20 months later said wanted car examined held accussed need to show evidence important and relevant - McGrath accused of causing death by dangerous driving, held should have kept crucial evidence(
Motorbike
)
Byrne
CCTV stills printed as no recording facility, not for court to hypothesise how missing evidence could assist
McFarlane
photos of fingerprints t
aken could count as secondary evidence
Change in approach
Byrne v DPP
should only intervene in
exceptional cases
Wall v DPP
applicant accused of gravving steerin wheel, no fingerprint analysis - new test if real risk that unfair trial could not be avoided by appropriate directions from the trial judge
Stirling
court prohibit trial, as incident captured on CCTV which was lost and whole trial hinged on it
Sirbu v DPP
missing CCTV about assault at christmas party, person accused had admitted to being there, matters could be addressed in court
unfair trial publicity
test if giving real risk of unfair trial
Z v DPP
alleged rapist of victim, most publicity said she had been raped, balance right to prosecute and right to fair trial - could be avoided by directions from judge -
burden on accused to show unfair trial can't be avoided by judge giving direcctions
DPP v McCarthy and Dundon
accused of gangland murder, public right to expeditious trial - judge sufficiently strong warning sufficient
Rattigan
gangland murder, a
ppropriate direction and sufficient time
passed to make trial fair
D v DPP
accused of indecent assault, jury discharged 2 times, - risk of unfair trial avoidable - only 1 article - could give directions
one successful case is
Magee v O'Dea
over extradition to the UK along with an article saying in IRA
*Wharrie
provide a number of factors -
extent of coverage, how prejudicial, prominance, source used, does it introduce evidence not known to jury
delay and right to expeditious trial
growing in prominance
Fawsitt
recognised right exists - relavent factors - lenght of delay, reasons gor delay, responsibility of accused, prejudice involved - in this case an important defence witness became unavailable due to delay in court list
McFarlane
in prison for 15 years up north, charged when got out, prohbition denied - only granted in extraordinary circumstances - if prosecution blameworthy presumed prejudice could arise -
balancing exercising
- prohbition only granted in
exeptional circumstance
- more than lapse of time
Devoy
delay mainly due to prosecution, refused prohibition, no steps taken by acccused to expedite trial, no evidence of stress or anxiety
sexual abuse cases
old approach
B v DPP
factors to consider the relationship, dominion, reason for delay, alibi (evidence), admission - court explored reasons for delay
SH v DPP
no longer examined reason for complainants delay (had already been address), primary school teacher charged with 50 counts of indecent assault 40 years late
r - new test focus on if prejudice caused by dela
y and not on reasons for delay
missing evidence can lead to prohibition -
DP v DPP
sex abuse of male prostitute, 20 year complainant delay, 3 year prosecution delay, a key witness therapist for victim - one missing piece of missing evidence can mean prohibition
DPP v CC
uncle raped 11 year old niece, uncles partner alleged to have brought her to room and undressed her, evidence from son of accused said father confessed, son contacted fathers partner who denied accusation, former partner died
only victim delay
new test
assess evidence as develop at trial
what evidence would be available if prosecuted earlier and how important
court assess if trial fair
difference between case of lost opportunity and real possibility of useful line of defence
prosecution delay a factor
appropriate venue is trial court
application - majority - trial fair no idea what partner would have said - dissent - ex-partner evidence would creat doubt
summary prosecutions
Cormack and Farrell
test same although delay less tolerated - in this case mainly due to applicants own fault
presumption of innocence
up to state to prove guilty beyond reasonable doubt
statutory provisions can shift burden
O'Leary v AG
presumption constitutional standing, offences against state act allowed possession of incriminating evidence to be presumed as evidence until contrary proven - constitutional as
shifting evidential burden not legal burden
McNally v Ireland
offence of selling mass cards without bishop or provincial approval an offence - held permissible as in public interest not practical for plaintiff to prove
*Hefferna
n* convicted of murder, raised defence of diminished responsibility - up to defence to raise - new test - does the act actually reverse the burden of proof (in this case yes) is it justified (yes - like in insanity) - wasn't up to accused to disprove any of the key elements of the offence
Forsey
convicted of corruption, defence available that the money was a loan not raised by original legal team, new legal team raised it - decision quashed - if reverse burden of proof requires defence to disprove core element of offence that violates presumption of innocence
CW
2022 case - reasonable mistake defence unconstitutional for sexual assault of child - shouldn't be convicted if reasonable doubt about guilt - don't want to hollow out the presumption of innocence
right to silence
DPP v McD
based in freedom of expression and 38.1
criminalisation of silence
allowed in
Heaney
proportionate to aim and in
Sweeney
double construction rule, right to avoid self-incrimination nothing about not incriminating others
inference from silence
Rock
could draw inference for failure to account for mark or presence of object - right to silence subject to public order and morality -
act proportionate as other evidence required
Finnerty
could only be authorised by statute and proportionate to legitimate aims
DPP v Josephy O'Reilly
jury got redacted transcript, court held - allowed and court can give directions if necessary
DPP v M
not easy to waive right to silence, not done by introducing statement by witness as evidence
can't use evidence obtained by compulsion in civil matters during criminal trial -
Dunnes
opinion evidence part of criminal gang
DPP v Kelly
allowed but supported by other evidence
right to cross-examine
Haughey
right to cross-examine every witness
Donnelly v Ireland
can use video link
Common theme is the trial court deal with it
focus on if can resolve it in the trial court