Abstract
This chapter examines the impact that criminal records have upon the trial process and is divided into two parts. The first deals with the admission of evidence in chief, and the second addresses the rules pertaining to cross-examination. In relation to evidence in chief, the focus is upon examining the rules of similar fact evidence at trial in order to determine the role that past convictions play. The second part then examines the law of cross-examination, particularly the relevant provisions of the Criminal Justice (Evidence) Act 1924 as amended, which provides for the circumstances where an accused can be cross-examined on his or her past record. The questioning of witnesses on their past convictions is also considered.
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Notes
- 1.
Beattie, J.M. (1986) Crime and the Courts in England 1660–1800. Princeton University Press, at p. 440.
- 2.
Beattie (1986) ibid., at p. 440.
- 3.
Judges were so heavily influenced by evidence of good character that men were frequently sentenced to death, not on the basis of sound evidence, but rather because they had no one to speak kindly on their behalf. Having no character references created an automatic assumption of bad reputation and disposition. Beattie observes that “to have no witnesses at all was almost certain to be disastrous,” with this being a common factor among many of those sentenced to death. Some judges even commented that they would have granted reprieve to an accused if “persons of worth and reputation had given him a favourable account of his character and former manner of life.” Beattie (1986), at pp. 447–448.
- 4.
Evidence of good character is still admissible at trial, but its admission is likely to only favour the first-time offender. Evidence of good character is confined to general reputation. Cross-examination on the other hand may also extend to specific acts of disposition. The purpose for which evidence of good reputation is permitted tends both to the credibility of the witness and sometimes even to the fact in issue (i.e. innocent or guilty).
- 5.
R v Bond [1906] 2 KB 389, at p. 397.
- 6.
Makin v Attorney General for New South Wales [1894] AC 57.
- 7.
At p. 65.
- 8.
People (DPP) v Murphy [2005] 2 IR 125.
- 9.
Makin, op. cit., per Lord Herschell at p. 65.
- 10.
See Acorn, AE. (1991) Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense. Oxford Journal of Legal Studies 11(1): 63–91, at pp. 94–95.
- 11.
See R v Fisher [1910] 1 K.B.; R v Firth [1938] 26 C.A.R. 148; R v Cohen [1938] 3 All E.R. 380.
- 12.
People (AG) v Kirwan [1943] IR 279. In this case, the accused was charged with murder and dismemberment of the body. Medical evidence was that only someone who had the relevant anatomical skill and knowledge could have dismembered the body in such a way. Evidence of three prison staff was admitted which revealed that the accused had such skill. This revealed to the jury that the accused had a criminal record but this was considered incidental to the purpose of admitting the evidence.
- 13.
Attorney General v Fleming [1934] IR 166, where evidence of a prior attempt to poison was admitted at the trial for murder to show malice.
- 14.
See, for example, AG v McCabe [1926] I.R. 129—where it formed part of the res gestae; People (AG) v Dempsey [1961] I.R. 288—where it was used to rebut a defence of innocent association. R v Porter [1935] 25 C.A.R. 59—where evidence of a conviction received for an offence committed that was similar to the current offence was admitted to demonstrate system or method. In Harris v DPP [1952] A.C. 694 the Court clarified that there was no closed list and that the examples provided by Lord Herschell in Makin were guidelines only.
- 15.
DPP v Boardman [1975] AC 421.
- 16.
Ibid., per Lord Cross.
- 17.
Ibid., at p. 896.
- 18.
DPP v P [1991] 2 AC 447. Lord Mackay determined that it is not appropriate to single out “striking similarity” as an essential element in every case (at p. 460).
- 19.
Ibid. at p. 460.
- 20.
This may be true even in respect to an old conviction.
- 21.
DPP v Keogh [1998] 4 IR 416.
- 22.
B v DPP [1997] 3 IR 140.
- 23.
Ibid. per Budd J, quoting Lord Wilberforce in Boardman (at p. 444).
- 24.
See further Maher, B. (2007) Development in Bad Character Evidence: Undermining the Accused’s Shield. Dublin University Law Journal 14 (1) 57–83, at p. 68.
- 25.
Criminal Justice (Administration) Act 1924, section 6(3).
- 26.
DPP v BK [2000] 2 IR 199. The Court of Criminal Appeal determined that the test as to whether to sever the counts was whether each count could be admissible on the other, and in doing so, the Court would invoke the balancing test. The Court found that there were material differences in the evidence in relation to the boy in the dormitory and the alleged offences of the other two boys and so trying all the counts together had created an unfair prejudice. However, the alleged offences of the other two boys, in the caravan, were cross-admissible as they were alleged to have been committed in unusual but identical circumstances.
- 27.
People (DPP) v McCurdy [2012] IECCA 76.
- 28.
See comments of Budd J in B v DPP, op. cit., at 157–158. In the case of DPP v McNeill [2011] IESC 11, the Supreme Court held that background evidence of ongoing abuse had been correctly disclosed and that such evidence could be admitted if it was relevant and necessary. This is arguably a lower standard than the high probative value required under the Boardman principle. Nonetheless, it seems that if misconduct evidence is relevant in order to ensure the jury’s comprehension of the counts in issue, this is also a valid reason for permitting the evidence.
- 29.
See O’Brien v Chief Constable of Wales Police [2005] U.K.H.L. 26, in particular comments by Lord Philips at p. 52.
- 30.
People (DPP) v DO’s, unreported, Court of Criminal Appeal, 28 July 2004.
- 31.
See, for example, the Criminal Justice Act 2003 (England).
- 32.
Balance in the Criminal Law Review Group, Final Report 15th March 2007, at p. 119.
- 33.
Ibid. at p. 141. It was also noted that there was an increased risk of miscarriages of justice in cases where the probative value of the evidence was low.
- 34.
Heffernan, L. (2005) Evidence: Cases and Materials. Dublin: Thomson Round Hall, at p. 62.
- 35.
Section 1(e) permits cross-examination “notwithstanding that it would tend to incriminate him as to the offence charged.”
- 36.
Maxwell v Director of Public Prosecutions [1935] AC 309, per Viscount Sankey.
- 37.
See comments of McWilliam J in King v Attorney General [1981] IR 233.
- 38.
People (DPP) v Kelly, unreported, Court of Criminal Appeal, 21 March 2002.
- 39.
See also People (AG) v Doyle, unreported CCA, 6 March 2002.
- 40.
In these circumstances, the questioning may be used to establish propensity rather than being confined to issues of credibility. The subsection is, however, limited to prior convictions and does not include prior charges or bad reputation generally.
- 41.
Section 33(b) of the 2010 Act also requires at least seven days notice to be given to the prosecution of the intent to make imputations. Alternatively, an application must be made to the Court citing the reasons why it is not possible to give the notice, and he must be granted leave to do so.
- 42.
Section 1(b)(i).
- 43.
Section 1(b)(ii).
- 44.
Ross, D. (2003) Accused Introduces His Own Bad Character. Deakin Law Review 8 (2), 291–303.
- 45.
If an accused chooses to testify, then he automatically becomes open to cross-examination under s.1(f)(i) as this section is not dependent upon a loss of the shield arising from the conduct of the defence.
- 46.
In Maxwell v DPP [1935] AC 309.
- 47.
DPP v McGrail [1990] 2 IR 38.
- 48.
DPP v McGrail [1990] 2 I 38, at pp. 48–51.
- 49.
It is for the trial judge to decide the circumstances which cause the accused to lose the shield under s.1(f), and even if the shield has technically been lost, the trial judge retains discretion as to whether to permit cross-examination of the accused on bad character. In exercising this discretion, the judge must ultimately decide whether the evidence is of greater probative or prejudicial value.
- 50.
The trial judge consequentially retains no discretion to prevent cross-examination under this provision.
- 51.
Murdoch v Taylor [1965] AC 574.
- 52.
See, for example, R v Kirkpatrick [1998] Crim LR 63, where the court held that the testimony did not have the effect of supporting the prosecution’s case and thus cross-examination was not permitted of the accused.
- 53.
Section 6 of the Criminal Procedure Act 1865.
- 54.
R v Paraskeva (1983) 79 Crim. App. Rep. 162 (CA).
- 55.
To this end, the defence’s cross-examination of a prosecution witness does not necessarily expose the accused to cross-examination of his past record unless imputations are made. See discussion on making imputations below.
- 56.
This falls contrary to the objectives of the adversarial process to encourage witnesses to testify where they have relevant evidence to proffer.
- 57.
The existence of a past conviction does not automatically mean that a person is more prone to lie than other witnesses, and certainly there is little by way of evidence to definitively demonstrate this to be true. The same may be said of the accused with a record. There is also no statutory limit upon the scope of cross-examination of witnesses here, the assumption being that this will fall to the discretion of the trial judge.
- 58.
Jury prejudice is not always the issue however, as demonstrated in the case of People (DPP) v Murphy [2005] 2 IR 125.
- 59.
The People v. Kirwan [1943] IR 279 at 307, quoting in part the judgement of Kennedy J. in R. v. Bond [1906] 2 K.B. 389 at p. 398.
- 60.
People v Zackowitz (1930) 172 NE 466, per Cardozo CJ, at p. 466.
- 61.
Palmer, A. (1994) The Scope of the Similar Fact Rule. Adelaide Law Review 16, 161–189, at pp. 169–172.
- 62.
This also raises concerns about standard of proof required in criminal trials and the lowering of such with the introduction of character evidence.
- 63.
Lloyd-Bostock, S. (2000) The Effects in Juries of Hearing about the Defendant’s Previous Criminal Record: A Simulation Study. Crim. L.R. 734–755, at p. 753.
- 64.
Lloyd-Bostock (2000) op. cit. at pp. 748–749.
- 65.
Law Commission (1996) Consultation Paper No. 141, Criminal Law- Evidence in Criminal Proceedings: Previous Misconduct of a Defendant. Home Office, London.
- 66.
Although the purpose of the evidence is to assess credibility rather than establish the accused’s guilt for the offence charged, it may be difficult for the jury to separate out these two rationales in their deliberations. Lane LCJ in the case of R v Watts [1983] 3 All ER 101, acknowledged this difficulty and referred to it as “intellectual acrobatics” (at 104).
- 67.
District court judges are likely to be familiar with the criminal records of accused appearing before them (O’Malley 2013).
Bibliography
Acorn, AE. (1991). Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense. Oxford Journal of Legal Studies, 11(1), 63–91.
Beattie, J. M. (1986). Crime and the Courts in England 1660–1800. Princeton, NJ: Princeton University Press.
Heffernan, L. (2005). Evidence: Cases and Materials. Dublin: Thomson Round Hall.
Law Commission. (1996). Consultation Paper No 141, Criminal Law—Evidence in Criminal Proceedings: Previous Misconduct of a Defendant. London: Home Office.
Lloyd-Bostock, S. (2000). The Effects in Juries of Hearing about the Defendant’s Previous Criminal Record: A Simulation Study. Criminal Law Review, 734–755.
Maher, B. (2007). Development in Bad Character Evidence: Undermining the Accused’s Shield. Dublin University Law Journal, 14(1), 57–83.
O’Malley, T. (2013). Sexual Offences (2nd ed.). Dublin: Round Hall.
Palmer, A. (1994) The Scope of the Similar Fact Rule. Adelaide Law Review, 16, 161–189.
Ross, D. (2003). Accused Introduces His Own Bad Character. Deakin Law Review, 8(2), 291–303.
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Fitzgerald O’Reilly, M. (2018). The Criminal Record on Trial. In: Uses and Consequences of a Criminal Conviction. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-59662-8_5
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