THE JUDGE IN CRIMINAL PROCEEDINGS
ROLES:
• Decide on admissibility of evidence
• Ensure rules of evidence are complied with (are they complying themselves?)
• Monitor behaviour of other courtroom actors
• Withdraw cases from jury - Galbraith
• Sums up to jury on the law and the facts prior to deliberation.
DISCRETIONARY POWERS:
• Exclude relevant evidence where more prejudicial than probative
• Withdraw case if insufficient evidence
• React to the introduction of inadmissible evidence
• Summing up
RARE:
• Summon witnesses not called by either side
• Ask questions of witnesses (relate to Jackson article)
• Leave a defence to the jury that has not been raised in argument: Cronin No.2
1. DISCRETION TO EXLCUDE RELEVANT EVIDENCE
When the prejudicial effect outweighs its probative value:
• Where prejudicial effect outweighs probative value, the constitutional right to a fair trial and
fair procedures mandate the court to exercise the general discretion to exclude relevant
evidence
The People (DPP) v Meleady [2001] 4 IR 16
Geoghegan J
Although there is no authority to permit a criminal court to admit evidence which is relevant
- ‘judge, as part of his inherent power, has an overriding duty in every case to ensure that the
accused receives a fair trial.’
- ‘Always has a discretion to exclude otherwise admissible prosecution evidence if, in his
opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.’
When is it more prejudicial than probative?
DPP v JG 2018 SC
- ‘Is one on which different judges may legitimately reach different conclusions’
- Arbitrary?
People v Coddington 2001 CA
,Applicant was convicted in the Circuit Court of possessing cannabis w intent to sell or otherwise
unlawfully supply to another. Sentenced to 5 ½ years.
The facts: accused was seen throwing plastic bags into a ditch by a nearby resident. She approached
him, he left, then she called guards and they found four bags containing hash. The applicant
returned to the location where they found the hash and accused was identified as the driver. Then
got a search warrant and found a large sum of money in his house.
A was arguing that the evidence of the cash should not be admitted because it is disproportionately
prejudicial – not very probative as to the actual offence because you can have cash without
necessarily being a dealer, and highly prejudicial because it indicates that they are a dealer. He
argued that it turned the burden of proof around and demanded that he come up with an innocent
explanation as to why that money was in his gaff and in doing so invited inferences from the failure
to provide such an explanation in custody and at trial.
Counsel argued that it was common knowledge that dealers have large amounts of cash:
- this is a reason why the finding of a substantial cash in a case such as this may have
probative value and be admissible.
- It is a matter for the jury to decide if such inferences can be drawn with regard ‘to the
totality of the evidence.’
- The admissibility of this evidence in the first place, befalls the judge – it is within his
discretion
There was also debris of cannabis resin on the notes – primary reason for admission but did
conceded that he would have allowed it anyway
- ‘where an accused…expressly agrees that his trial should proceed on the basis of evidence
already tendered to the jury it is not open to him, on appeal, to challenge the verdict on
the grounds that…the evidence had been admitted
- unless it gives rise to some essential flaw in the trial affecting its fundamental fairness.’
However, on the second grounds – a new trial was ordered because the judge
- reminded jury of omission to give evidence in the context of failure to explain the presence
of money w/out any direction that they cannot draw adverse inferences from this omission
(central tenet of innocent until proven guilty)
- inviting the jury merely to speculate in their own right is insufficient if preceding it is a direct
recognition that the accused failed to innocently account for a vital piece of evidence against
him.
- ‘they say that there may be a totally innocent explanation as to why the cash was in the
house. You are invited then to speculate as to what the perfectly innocent explanation may
be. You have no evidence from the accused in so far as that is concerned…there is no
contest that it was his money, and yet you are invited to speculate as to what the
explanation here might be for the money being there.’ – but you cannot draw any inferences
from an omission to give evidence for that explanation. – needed.
, D.P.P v Finnerty
- The exercised by an accused of right not to give evidence in his own defence cannot lead to
any inferences adverse to him being drawn by the Court and that…the jury must be
expressly so advised.’
McGrath:
- Cases surmises the circular nature of the balancing test…’the basis of the probative value is
also the source of its prejudicial effect.’
- The question is of proportion – the question is not whether the evidence is probative or
whether it is prejudicial – it is whether it’s UNDULY prejudicial
People (DPP) v Hussain [2014] CA
Convicted of assault offences. The A encountered his estranged wife w another man and thought
they were having an affair. He assaulted her viciously. She had injuries on throat and abdomen. The
issue as regards to prejudice was whether the admission of photos of the injuries into evidence was
unfair
CLARKE
- The idea of discretion places an extra barrier of difficulty for accused’s arguing this on
appeal:
- Admission is ‘principally a matter for the trial judge…in the light of the state of the evidence
as a whole and the issues which have emerged at the trial’
Thus,
- TJ also in the best position
- Interference by appellate court should only happen ‘in a very clear case’
Live issue in the case surrounding the amount of abdominal injuries and the precise way in which
they occurred, thus to assist the jury In addressing these;
- open to TJ to view that ‘contemporaneous photographs of the injuries might be of
assistance to the jury’
People (DPP) v PM [2018] CA
Child that was sexually abused 20 years before going to the authorities. Contended she’d told her
mum who didn’t believe her when it happened.
The event was that the victim called over to the appellants house which neighboured hers to borrow
a hairdryer and was sexually assaulted. The relevant count was at the time indecent assault. Victim
says she remembered when A was removing his penis from her mouth there was a mole on it and
said it was at the base of the penis. His genitals were photographed and shown at trial and the mole
ROLES:
• Decide on admissibility of evidence
• Ensure rules of evidence are complied with (are they complying themselves?)
• Monitor behaviour of other courtroom actors
• Withdraw cases from jury - Galbraith
• Sums up to jury on the law and the facts prior to deliberation.
DISCRETIONARY POWERS:
• Exclude relevant evidence where more prejudicial than probative
• Withdraw case if insufficient evidence
• React to the introduction of inadmissible evidence
• Summing up
RARE:
• Summon witnesses not called by either side
• Ask questions of witnesses (relate to Jackson article)
• Leave a defence to the jury that has not been raised in argument: Cronin No.2
1. DISCRETION TO EXLCUDE RELEVANT EVIDENCE
When the prejudicial effect outweighs its probative value:
• Where prejudicial effect outweighs probative value, the constitutional right to a fair trial and
fair procedures mandate the court to exercise the general discretion to exclude relevant
evidence
The People (DPP) v Meleady [2001] 4 IR 16
Geoghegan J
Although there is no authority to permit a criminal court to admit evidence which is relevant
- ‘judge, as part of his inherent power, has an overriding duty in every case to ensure that the
accused receives a fair trial.’
- ‘Always has a discretion to exclude otherwise admissible prosecution evidence if, in his
opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.’
When is it more prejudicial than probative?
DPP v JG 2018 SC
- ‘Is one on which different judges may legitimately reach different conclusions’
- Arbitrary?
People v Coddington 2001 CA
,Applicant was convicted in the Circuit Court of possessing cannabis w intent to sell or otherwise
unlawfully supply to another. Sentenced to 5 ½ years.
The facts: accused was seen throwing plastic bags into a ditch by a nearby resident. She approached
him, he left, then she called guards and they found four bags containing hash. The applicant
returned to the location where they found the hash and accused was identified as the driver. Then
got a search warrant and found a large sum of money in his house.
A was arguing that the evidence of the cash should not be admitted because it is disproportionately
prejudicial – not very probative as to the actual offence because you can have cash without
necessarily being a dealer, and highly prejudicial because it indicates that they are a dealer. He
argued that it turned the burden of proof around and demanded that he come up with an innocent
explanation as to why that money was in his gaff and in doing so invited inferences from the failure
to provide such an explanation in custody and at trial.
Counsel argued that it was common knowledge that dealers have large amounts of cash:
- this is a reason why the finding of a substantial cash in a case such as this may have
probative value and be admissible.
- It is a matter for the jury to decide if such inferences can be drawn with regard ‘to the
totality of the evidence.’
- The admissibility of this evidence in the first place, befalls the judge – it is within his
discretion
There was also debris of cannabis resin on the notes – primary reason for admission but did
conceded that he would have allowed it anyway
- ‘where an accused…expressly agrees that his trial should proceed on the basis of evidence
already tendered to the jury it is not open to him, on appeal, to challenge the verdict on
the grounds that…the evidence had been admitted
- unless it gives rise to some essential flaw in the trial affecting its fundamental fairness.’
However, on the second grounds – a new trial was ordered because the judge
- reminded jury of omission to give evidence in the context of failure to explain the presence
of money w/out any direction that they cannot draw adverse inferences from this omission
(central tenet of innocent until proven guilty)
- inviting the jury merely to speculate in their own right is insufficient if preceding it is a direct
recognition that the accused failed to innocently account for a vital piece of evidence against
him.
- ‘they say that there may be a totally innocent explanation as to why the cash was in the
house. You are invited then to speculate as to what the perfectly innocent explanation may
be. You have no evidence from the accused in so far as that is concerned…there is no
contest that it was his money, and yet you are invited to speculate as to what the
explanation here might be for the money being there.’ – but you cannot draw any inferences
from an omission to give evidence for that explanation. – needed.
, D.P.P v Finnerty
- The exercised by an accused of right not to give evidence in his own defence cannot lead to
any inferences adverse to him being drawn by the Court and that…the jury must be
expressly so advised.’
McGrath:
- Cases surmises the circular nature of the balancing test…’the basis of the probative value is
also the source of its prejudicial effect.’
- The question is of proportion – the question is not whether the evidence is probative or
whether it is prejudicial – it is whether it’s UNDULY prejudicial
People (DPP) v Hussain [2014] CA
Convicted of assault offences. The A encountered his estranged wife w another man and thought
they were having an affair. He assaulted her viciously. She had injuries on throat and abdomen. The
issue as regards to prejudice was whether the admission of photos of the injuries into evidence was
unfair
CLARKE
- The idea of discretion places an extra barrier of difficulty for accused’s arguing this on
appeal:
- Admission is ‘principally a matter for the trial judge…in the light of the state of the evidence
as a whole and the issues which have emerged at the trial’
Thus,
- TJ also in the best position
- Interference by appellate court should only happen ‘in a very clear case’
Live issue in the case surrounding the amount of abdominal injuries and the precise way in which
they occurred, thus to assist the jury In addressing these;
- open to TJ to view that ‘contemporaneous photographs of the injuries might be of
assistance to the jury’
People (DPP) v PM [2018] CA
Child that was sexually abused 20 years before going to the authorities. Contended she’d told her
mum who didn’t believe her when it happened.
The event was that the victim called over to the appellants house which neighboured hers to borrow
a hairdryer and was sexually assaulted. The relevant count was at the time indecent assault. Victim
says she remembered when A was removing his penis from her mouth there was a mole on it and
said it was at the base of the penis. His genitals were photographed and shown at trial and the mole
