corroboration Flashcards
(23 cards)
1
Q
Introduction
A
- At common law – quality over quantity: one competent witness is sufficient to support a verdict whether in criminal or civil proceedings.
- In criminal offences – corroboration is required as a matter of law – in the absence – the judge must direct an acquittal.
- The courts insisted that the testimony of particular categories of witness, whose evidence was considered inherently unreliable, could be admitted only id supported or corroborated by other independent evidence.
- R v Baskerville – definition
o ‘we hold that the evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime – evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. - People (Attorney General) v Williams – Irish definition
o Independent evidence of material circumstances tending to implicate the accused in the commission of the crime. - Therefore – two conditions: evidence must be independent, and it must implicate the accused in relation to the offence.
2
Q
Independence
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- DPP v Christie – a person cannot be his own corroborator. Evidence is only corroborative is it comes form an independent source – to reduce the danger of fabrication (recent complaint – exception)
- DPP v PC – not corroboration – did not show that the accused committed the crime
o The applicant has been accused of unlawful carnal knowledge
o The court considered whether the complainant’s ability to describe the room amounts to corroborative evidence.
o Held that if such evidence were to be treated as corroboration – would amount to self-corroboration on the part of the complainant - DPP v Gilligan – not every piece of independent circumstantial evidence may implicate an accused with the offence, but the collection of circumstantial evidence tends to implicate the accused.
- People (DPP) v O’Neill – considered whether DNA evidence was corroborative
o Two pairs of balaclava contained hairs and compared with those of the applicant
o Held that the evidence of the hairs could not amount to corroboration here
o The evidence wasn’t of any probative value in distinguishing the applicant’s hair from the rest of the population
3
Q
Implicates the accused
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- DPP v Kilbourne – Evidence will be treated as implicating the accused if it makes it more probable that he committed the crime.
4
Q
Material Particular
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- People (DPP) v Murphy – ‘material particular’ means a material fact i.e. fact which in the circumstances of the case and the issues raised in it is material to the guilt or innocence of the accused in the offence charged.
5
Q
Cumulative corroboration
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- R v McNamara (No.1) – circumstances which when viewed in isolation are incapable of constituting corroboration may, when considered together, be of sufficient strength to be corroborative
- DPP v Reid – appeal on the conviction of rape, false imprisonment and assault
o The complainant gave testimony that at the time of the intercourse TV was tuned on at a high-volume to overpower her protest
o When the Gardai arrested the accused, he was in a room with the television which was turned to a high volume
o The complainant’s parents testified that she was in distress and with blood on her clothes
o Medical examiner testified that there a considerable amount of force has been used
o Held: concurring circumstances which gave greater probability to the evidence of the prosecutor were all matters which were independent of the complainant’s own evidence and which could have tended to confirm her account
6
Q
Accomplice evidence - mandatory warning
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- The evidence of accomplice is admissible and sufficient to ground a conviction even if uncorroborated but is treated with caution – the accomplice may be merely attempting to transfer blame or hope to obtain favorable treatment from the persecution.
- Where there is evidence of an accomplice – the judge must instruct the jury on dangers of acting on such evidence without corroboration.
- Dental Board v O’Callaghan
o There is no rule of law that uncorroborated evidence must be rejected but the jury must bear in mind the dangers to convict upon the evidence of an accomplice unless it is corroborated.
7
Q
An ‘accomplice’
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- A warning is only required if the witness is an accomplice – a person who is charged as a principal or accessory with the principal offender.
- AG v Linehan – the court held that they did not believe that a narrow or precise definition of ‘accomplice should be adopted’
o In the case a woman was charged with the murder of her granddaughter’s child and the granddaughter was implicated in the crime.
o Held – although she had already been acquitted of the offence, logic indicated that she should be treated as an accomplice for the purposes of the issue of corroboration
o The degree and gravity of complicity may vary and inasmuch as the extent of the effect of such complicity upon the credit of the witness or the weight of his uncorroborated testimony will vary accordingly, so should the degree and gravity of the warning be measured. - People (DPP) v Diemling – the witness was a daughter of the accused who helped conceal the fact of the homicide
o Court held that even a slight degree of complicity as an accessory after the fact is sufficient to render a witness an accomplice for the purposes of corroboration warning.
8
Q
Witnesses receiving benefits – the witness protection programme
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- The dilemma: should the evidence of a person who stood to benefit from such a programme be treated with greater suspicion than the evidence of an ordinary person?
- R v Crumley – the reasons why such evidence is particularly unreliable
o What is known about the supergrass’s character and situation increases the probability that he will be an unreliable witness, the danger of acting on his uncorroborated evidence is increased – he has volunteered a veritable mass of damning information against men whom he alleges to have been his confederates, to whom he is bound by an oath to further cause which he no doubt regarded as patriotic. - People (DPP) v Ward – the court has examined whether Bowden should be characterized as an ‘ordinary’ accomplice or a supergrass, decided that they were dealing with the former.
o The court concluded that his testimony was likely to be reliable, given that he had now no incentive to deceive and therefore accepted it uncorroborated.
o He had made ‘probably the best bargain he could hope to achieve from the State in all circumstances’ and he must’ve known and feared that the State could have withdrawn his protection if his story was shown to be false, despite the fact that he was a vicious criminal and would lie without hesitation.
o CoA stated that ‘it was the unequivocal finding of the Special Criminal Court and it was the frank and unavoidable admission of Mr. Bowden himself that he was an inveterate liar.
9
Q
test for wpp
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- People (DPP) v Gilligan – acquitted of murder but was convicted on the importation of drugs upon the evidence of three accomplice witnesses who were in the WPP
o Quashed the conviction on the appeal to the CoA and the SC - The witness protection program in Ireland, though new, has been implemented in response to issues like organized crime, gang warfare, and drug trafficking. It has been used in other countries to protect witnesses, including those who may also be involved in criminal activities. In this case, the program was the first of its kind in Ireland and was not well-organized or executed, with some deficiencies. However, the court emphasized that while the program was imperfect, this did not automatically make the trial unfair. The key issue was whether the flaws in the program undermined due process.
o The learned judge went to state – the testimony of the person receiving benefits should be regarded with caution
o Suh evidence comparable with one of the accomplice have potential motive to perjure themselves.
a) The testimony from persons receiving a benefit should be viewed with caution;
b) While such evidence is not inadmissible it should be scrutinized carefully
c) The credibility of such a witness should be analysed in light of all the evidence in the case;
d) All the facts and factors of the case should be analysed to determine the weight, if any to be given to the evidence;
e) The trial judge should give a warning to a jury of the dangers of relying on such evidence without corroboration.
f) Once the warning is given, however, the trier of fact may determine the appropriate weight to be attached to such evidence and may convict in the absence of corroborative evidence.
g) Corroborative evidence may include circumstantial evidence, as considered previously in this judgment.’ - DPP v Ryan – The trial judge gave a corroboration warning for a witness on the condition that the jury considered him an accomplice but did not give a warning based on the witness being in the witness protection program.
o CoA ruled that the judge made an error, referencing the Supreme Court’s decision in Gilligan, which required a corroboration warning for all witnesses in witness protection programs. This is because such witnesses might be influenced, directly or indirectly, by the benefits they receive.
o The nature of the warning is the same as the warning to be given in the case of an accomplice and in the case of WPP must be explained why such warning is needed
10
Q
sexual offences - discretionary warning
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- Historically – the evidence of a complainant of sexual abused was regarded with caution as it was hard to prove and over the years, the common law rule has developed the rule that such evidence must be subject to a mandatory corroboration warning.
- Following by the LRC – the area was statutory reformed
o Section 7 of the Criminal Law (Rape) (Amendment) Act 1990 provides that ‘it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given a warning…If a judge decides, in his discretion, to give such a warning aforesaid, it shall not be necessary to use any particular form of words to do so’. - People (DPP) v Reid – the trial judge may consider it necessary to give the warning to the jury as to convicting a person without the corroborative evidence.
- People (DPP) v C.C – appeal on the ground that the trial judge did not give a corroborative warning
o Held that it was not necessary, and it is no longer good law - People (DPP) v Molloy – the court’s view was that there is a necessity of corroborative warning when the nature of the evidence is inconsistent
o Where the charge is supported by the evidence of the complainant alone, without collateral forensic evidence or any other form of corroboration, it is prudent practice for the judge to warn the jury. - Longman v R – Australian case – warning is no longer appropriate
11
Q
the test for sa mandatory warning
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- R v Makanjuola
1) Section 32(1) abrogated the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of sexual offence simply because a witness falls into one of those categories
2) It is for the judge to decide whether he considers the warning appropriate – it will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence
3) In some case the warning in relation to the unsupported evidence is needed – not because it’s a sexual offence case, but because there might be evidence that is considered unreliable
4) If there is a question as to whether such a warning is needed, it is desirable that the question be resolved by discussion with the counsel in the absence of the jury before the final speeches
5) Where the judge decides to give the warning, he needs to do so as part of the review of the evidence, and not as a set-piece legal direction
6) When the warning is required, it is for the judge to decide the strength and the terms of the warning
7) Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated
8) Where there is unreasonable exercise, the court will be disciplined – Association Provincial Picture Houses Ltd. v. Wednesbury Corporation
12
Q
other cases for SA mandatory warning
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- People (DPP) v JEM – the applicant sought to appeal against his conviction of four counts of SA on a 15 yo girl and one of the main grounds for the appeal was that the trial judge had erred in refusing to give to the jury a corroboration warning
o The warning is no longer mandatory and the decision whether it should be given is now a matter for the discretion of the trial judge
o As Maguire CJ said in People (AG) v Cradden – the degree and the gravity of the warning may vary with the degree and gravity of the risk involved in accepting the evidence which requires corroboration, it is for the trial judge in each case to measure the strength of the warning having regard, in such cases, ‘concurring circumstances which give greater probability to the evidence of the prosecutrix’
o DPP v MK – the concept of corroboration and its proper definition is of considerable importance toa jury in deciding the guilt or innocence of the accused person. It is crucial to clearly and unequivocally point out to the jury what, if any, of the evidence before them can amount to corroboration as defined’
o In this case, the trial judge had correctly set out the legal principles in relation to corroboration, however, had failed to clearly distinguish between evidence that confirmed that the complainant has been assaulted and evidence that connected the accused with the commission of the offence.
13
Q
doctrine of recent complaint
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- As a general rule, sometimes referred to as the rue against narrative or the rule against self-corroboration, statements made by a witness prior to giving evidence which are consistent with his or her testimony are not admissible. Rationale – to avoid allowing a previous consistency on the part of a witness to bolster his or her credibility. The fear is that it would allow witnesses to merely repeat a story and then seek to rely on their consistency as evidence of their telling the truth. This can give such evidence a weight it does not deserve.
- Exception to that rule is the doctrine of recent complaint in SA cases. This type of evidence is used to support the credibility of the complainant but not to corroborate their evidence.
14
Q
case law for doctrine of recent complaint
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- People (DPP) v MA – the making of a compliant to a third party soon after the offence was always admissible evidence in the prosecution of such offences.
o It is the evidence that supports the credibility of a complainant based on the view that it was natural expression of the victim’s feelings that reasonably soon after the offence she would complain to some person with whom she had a personal or confidential relationship.
o Four requirements in order for such evidence to be considered admissible:
1. The prosecution is for a sexual offence;
2. The complaint was made at the first reasonable opportunity after the commission of the offence;
3. The complaint was voluntary;
4. The complaint was consistent with the evidence of the complainant. - People (DPP) v Brophy – accused convicted of the indecent assault of a 14 y.o. girl.
o The complainant has informed her father and some friends of the incident but had not informed her mother or others immediately after the alleged incident.
o The prosecution accepted that since the complaint was not made at the first opportunity – they should not give the terms, but only the fact of the complaint.
o The CoA – whether the evidence of the fact was admissible since it was not made at the first reasonable opportunity.
o O’Flaherty J – if the evidence of the complaint is admissible and subject to the discretion of the trial judge to prevent unnecessary prejudicial repetition, the terms of the complaint are also admissible…there seems no room for half measures in regard to this, either the fact of a complaint is admissible or it is not.
15
Q
i. Sexual offence
A
- The rule allowing for the admissibility of recent complaints only applies to sexual offences
16
Q
ii. First reasonable opportunity
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- R v Valentine – what is the first reasonable opportunity will depend on the circumstances, including the character of the complainant and the relationship between the complainant and to whom the she complained and the persons to whom she might’ve complained but did not do so
- People (DPP) v Kiernan – the complainant alleged that the accused had brough her to his house on a Friday night and raped her.
o After she went downstairs and saw the accused girlfriend and complained to her, to which she replied that she had just imagined it because of the alcohol she consumed
o She then returned home but did not make a complaint to her family
o The court held that she did not make a complaint to her boyfriend on a Saturday when she saw him, but on a Sunday.
o If it had been made on a Saturday, the court would have been satisfied that it was made as soon as reasonably possible but because of the delay, it did not satisfy the requirement.
17
Q
iii. Voluntary
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- R v Osborne – questions of a suggestive or leading character will have that effect…if the circumstances indicate that but for the questioning there probably would have been no voluntary complaint – the answer is inadmissible.
18
Q
iv. Consistency
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- The purpose of allowing this type of evidence is to show consistency and it therefore follows that is there are inconsistencies between the evidence given at trial and recent complaint – it is not then admissible.
- People (DPP) v Gavin – here the complaint does not meet the primarily criteria of being consistent with the evidence at trial. The trial judge in his charge made no attempts to give either of these essential explanations and warnings to the jury. In the ground alone, the trial of the appellant was unsatisfactory; the appellant’s appeal must succeed and his conviction must be quashed’
- People (DPP) v Jethi – minor inconsistencies should be expected – on the central issue of consent, the evidence was clear and consistent, and therefore, the complaint was admissible
19
Q
Identification evidence
A
- Visual identification evidence is the identification of the accused as a culprit by a witness. However, it has long been recognised that visual identification evidence poses a serious risk of a miscarriage of justice due to mistake.
- Visual identification evidence was singled out by the English Criminal Law Revision Committee as ‘by far the greatest cause ofr actual or possible wrong convictions’
- People (DPP) v Mekonnen – where the conviction of an accused person is wholly or substantially dependent on the evidence derived from visual identification, both human and legal experience has in a marked way alerted us to the risk of mistaken identity.
o Any spillage in such commitment increases the possibility of resulting injustice: the greater the spillage – the greater risk. That is why a particular duty of enhanced scrutiny and critical appraisal is required in a all cases where the issue is in play. - cotton case
20
Q
Casey warning
A
- In every trial where there is visual identification, the judge must give a Casey warning. The content of the warning will depend on the manner in which the witness previously visually identified the accused as the culprit.
- People (AG) v Casey (No. 2) – the appellant was convicted of assault and indecent assault of two young boys.
o There was no physical evidence – the case rested on evidence of one of the boys who had never met the man before and of a witness who caught a glimpse of a man through the headlights of his car
o ‘In my opinion it is desirable that in all cases where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of cases such identification has been proved erroneous, to the possibilities of mistake in the case before them necessity of cation.’ (even where there is identification by two witnesses)
o ‘…but if after careful examination of such evidence, with due regard to all the evidence in the case, they feel satisfied beyond the reasonable doubt of the correctness of the identification they are at liberty to act upon it.’
21
Q
Dock identification
A
- Where the witness identifies the accused for the first time in court from the deck.
- People (DPP) v Cooney – ‘dock identifications’ are undesirable and unsatisfactory. Save in ‘recognition’ cases where the witness knew the suspect before the alleged offence, the identification of the accused for the first time when he or she is sitting in the place normally reserved for the accused are usually flanked by prison officers is of limited probative value.
o The appropriate procedure is to hold the identification parade or, to afford the identification witness some other opportunity of identifying the accused.
o If the suspect refuses to cooperate – the court may admit the evidence of an identification in the court of the accused but must warn the jury
o In this case, the admittedly prejudicial nature of a ‘dock identification’ did not overweigh its probative value and the judge gave am adequate warning to the jury. - People v Meehan – the witness identified the accused as the person he had met previously several times in relation to the supply of drugs. As the witness knew the accused – an in dock identification was deemed permissible
22
Q
Identification parade
A
- It involves placing the suspect among wight or nine persons of the same sex and of similar age, height, appearance and dress as the suspect and who come from the same socioeconomic background (foils).
- If the identification is made – the witness will be asked to touch the person on the shoulder – however, if she is a child or is frightened pointing at the described person will suffice.
- People (DPP) v Mekonnen – emphasized that the Gardai have an overriding duty to ensure the fairness of a parade , to adopt whatever safeguards are necessary to achieve this and to be ‘vigilant and proactive in this regard’
- Should be conducted by a gardai who is not related to the case.
23
Q
Confessions
A
- Traditional common law approach – a person could be convicted solely on foot of confession and no corroborative evidence, nor warning of the jury was needed – DPP v Kavanagh
- The contention that there should be a mandatory warning of the jury that it is unsafe to convict based on the confession was rejected in People (DPP) v Quilligan (No. 3)
o Finlay CJ – the problems which arise in relation to uncorroborated confessions were not ‘amenable, as a matter of principle, to a general requirement for judicial warning in every case against the dangers of convicting on foot of the evidence contained in inculpatory statements, where it is not corroborated’ - Section 10 of the Criminal Procedure Act 1993 – overruled the decision in Quilligan
1) Where at the trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.
2) It shall not be necessary for a judge to use any particular form of words under this section.”
o The use of that term indicates that the section is directed towards the risk of a miscarriage of justice that arises when the only evidence against the accused is that of confession or inculpatory statement made by him. - DPP v Connolly – the only evidence against the accused was an inculpatory statement made by him while in custody. On appeal it was argued that the trial judge did not comply with Section 10 in that it did not contain sufficiently strong or detailed advice to the jury on the weight to be given on the fact that the accused’s statement was uncorroborated.
o Hardiman J commented that it could be inferred from its enactment that the legislature was of the view that juries might not be sufficiently aware of the need to have regard to the lack of corroboration on cases where the only evidence is an unsupported confession.
o The instruction given by the trial judge in purported compliance with s 10 was over-general and did not contain advice which was sufficiently explanatory of the term ‘due regard to the absence of corroboration.
o Example of the perfect warning - People (AG) v Casey (No.2) – the warning in Connoly is not meant to be a stereotyped formula.
- The judgment of Hardiman J in Connolly seems to indicate that a corroboration instruction pursuant to s.10 is required even where there is evidence that could amount to corroboration if the jury accepted it, because the trial judge cannot know in advance whether they will accept it or not.
