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Double Jeopardy Constitutional Interpretation

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Double Jeopardy Constitutional Interpretation Journal of the Bar of Ireland • Volume 13 • Issue 5 • November 2008 Double Jeopardy Constitutional Interpretation BR 5-2008.indd 1 28/10/2008 10:46:07 Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Cover Illustration: Brian Gallagher T: 01 4973389 Editor: Eilis Brennan BL E: [email protected] W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin [email protected] T: 01 8727305 Editorial Board: Donal O’Donnell SC, Chairman, Editorial Board Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Volume 13, Issue 5, November 2008, ISSN 1339-3426 Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Contents Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh 106 Character Evidence in criminal trials Jerry Carroll THERESA LOWE BL Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC 109 The Incoherence of Historicism in Irish Constitutional Thomas McCann SC Interpretation* Eoghan Fitzsimons SC Pat Hanratty SC DAVID LANGWALLNER BL James O’Reilly SC Gerard Hogan SC lxxiii Legal Update: A Guide to Legal Developments from The Bar Review is published by Round Hall in association with The 24th June 2008 up to 14th October 2008 Bar Council of Ireland. For all subscription queries contact: 115 Reform of the Statute Book and Access to Legislation Round Hall Thomson Reuters HEATHER MAHON 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 119 Double Jeopardy – How many trials to Babylon? E: [email protected] DAVID GOLDBERG SC web: www.roundhall.ie Subscriptions: January 2008 to December 2008—6 issues Annual Subscription: €210.00 For all advertising queries contact: Tom Clark, Direct line: + 44 20 7393 7797 E: [email protected] Directories Unit. Sweet & Maxwell Contributions published in this journal are not intended to, and do not represent, legal advice on Telephone: + 44 20 7393 7000 the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing The Bar Review November 2008 authors and do not represent the views or opinions of the Bar Review or the Bar Council. BR 5-2008.indd 105 28/10/2008 10:46:08 Character Evidence in criminal trials THERESA LOWE BL It is a very common feature of a plea in mitigation that the it is well established that the defence can put before the jury defence will call character witnesses who will testify as to the evidence of good character. good character of the accused. What is not so common is the calling of character witnesses during the course of a criminal Purpose of calling character evidence trial prior to the case going to the jury. While uncommon, the defence is at all times entitled to adduce this evidence The purpose of calling character witnesses to give evidence and in certain circumstances, it is the appropriate course for during the trial is primarily to show that the accused is less the defence to take. likely to have committed the offence because he or she is a person of good character. Such evidence goes to his or her History innocence of the offences charged and also to his or her credibility. This evidence is generally led by the defence and The admission of evidence of the good character of an put before the jury for the dual purpose of convincing them accused can be traced back to the seventeenth century in the that the accused is unlikely to have committed the offences case of R v Turner1. It was regularly admitted by the end of alleged and further to bolster the credibility of the accused if the eighteenth century and in the leading case of R v Rowton2 he or she gives evidence or made pre-trial statements denying Cockburn C.J. stated: the commission of the offence.4 Thus, where evidence of good character is given on behalf “The allowing evidence of a prisoner’s good character of an accused, it goes to his or her innocence of the offences to be given has grown up from a desire to administer charged and his or her credibility, if he testified during the the law with mercy, as far as possible. It sprung up in proceedings or made exculpatory pre-trial statements. a time when the law was, according to the common In People (Attorney General) v Bond,5 the trial judge had estimation of mankind, severer than it should have permitted the cross-examination of the accused as to been.” previous convictions on the basis that the defence had attacked the character of prosecution witnesses. Haugh J. While the law may be regarded as less severe in the 21st explained that this evidence was admissible only to show century, such evidence is now admissible in favour of the that the accused was a person whose evidence might not be accused in any criminal proceedings and can be adduced by worthy of credit. It had, however, wrongly been used to show examination in chief of the accused or witnesses called by that the accused had probably committed the offences with the defence, or elicited on cross examination of prosecution which he was charged. The trial judge should have explained witnesses, a co-accused or witnesses called by him.3 that “it went to his credit and should on no account be used to show the Thus, the defence is entitled to elicit that evidence from probability of his guilt.” 6 the prosecuting Garda and prosecution witnesses, from an accused person during examination-in-chief, from the Who can be called as a character witness? co-accused or witnesses called by him and there is also an entitlement to call character witnesses if the defence chooses • Persons who are aware of the accused person’s to do so. standing in the community.7 Typical character The Criminal Justice (Evidence) Act of 1924 anticipates witnesses are previous or current employers, a the defence giving evidence of good character. Section spouse can be called to give character evidence8 1(f)(ii) provides that the accused may be asked about his bad and in general, persons of good standing in the character and/or about any previous offences which he may community. have committed, or been convicted of, or been charged with, if he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution. That legislation is in place for over eighty years. Therefore, 4 McGrath, Evidence. (2005) 466 5 [1966] I.R. 214 6 ( 223) 7 R. v. Rowton (1865) 10 Cox C.C. 25 at 30; [1861-73] All E.R. 549 at 1 (1664) 6 St. Tr. 565. 552.) 2 (1865) 10 Cox C.C. 25 at 30; [1861-73] All E.R. 549 at 552. 8 Peter Charleton, P.A. McDermott, M. Bolger, Criminal Law (1999) 3 McGrath, Evidence. (2005) 465 189 Page 106 Bar Review November 2008 BR 5-2008.indd 106 28/10/2008 10:46:08 What kind of good character evidence may be members of the community think of him or given? her, when he or she is not present.17 Therefore an accused, when giving evidence of his own • When evidence of good character is given, it good character, may give evidence of specific should be directed to that part of the man’s acts or instances tending to show that he is of character which is relevant.9 So, if the charge good character.18 is theft, evidence of the accused person’s character for honesty is relevant as is his Nature of the questions character for violence where the charge is one of assault. The witness is asked a series of questions designed to • The rule at common law is that evidence of elicit relevant information about the accused. The form of character is confined to evidence of general questioning is limited in these circumstances. There are certain reputation and not evidence of disposition. matters that cannot be canvassed by Defence Counsel. Since the decision in Rowton, it has been the Examples of inappropriate questions might be, by way of rule that witnesses as to character must testify example, an attempt to elicit the witness’s immediate reaction to the reputation of the accused and not to on hearing about the particular charge or charges. It would specific good acts or individual’s opinions as to also be imprudent to ask a witness if they believe the accused character. That approach was approved in this to be capable of committing the alleged offence. jurisdiction in People (DPP) v Ferris 10 Therefore, the only evidence of good character that may be adduced by a witness called by the defence Judges Directions or elicited in cross-examination is evidence of the general reputation of the accused and not There are no authorities here regarding Judges directions in evidence of disposition.11 relation to character evidence. However, other jurisdictions • While evidence of (a) opinion or (b) particular can provide some guidance in this area. In Commonwealth acts or examples of conduct should be excluded, jurisdictions, the trial judge is required to give the jury a 12 in practice, the rule is ignored13 and such direction as to the use that can be made and the weight to evidence is often admitted.
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