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Law of evidence





The Honorable Society of King’s Inns


Entrance Examination 2008




LAW OF EVIDENCE




EXAMINER: Ms. Ruth Cannon BL (TCD)


EXTERN: Mr. Patrick Marrinan SC


Attached:

Syllabus 2008


Reading List 2008

Examination Format 2008


SYLLABUS - Law of Evidence 2008


Introduction: Rationale of Proof


Legal Adjudication

Definitions of Evidence

Sources

Fair Procedure: Role of Jury

Application of rules of evidence to Tribunal proceedings

Future ambit of rules: Influence of European Convention on Human Rights


Basic Concepts of the Law of Evidence


Terminology - Direct evidence, real evidence, documentary evidence/

Functions of Judge & Jury

Relevance/Admissibility Distinction

Receivability/Materiality

Determination of the ‘ultimate issue’


Burden Of Proof

Legal Burden; Evidential Burden

Shifting of the Burden of Proof

‘Res ipsa Loguitur’

Criminal Cases: The Golden Thread

Exceptions:

  • Insanity

  • Statutory


S 52 Offences Against the State Act 1939

Ss 18 & 19 Criminal Justice Act 1984

S 7 Criminal Justice (Drug Trafficking) Act 1996

Ss 2 & 5 Offences Against the State (Amendment) Act 1998


Illegally Obtained Evidence


Powers of Search & Seizure: consent, on arrest, specific statutory authority

Search Warrants

s.10 Criminal Justice (Miscellaneous Provisions) Act 1997

s. 6 Criminal Law Act 1997

s. 14 Criminal Assets Bureau Act 1996

s. 8 Criminal Justice (Drug Trafficking) Act 1996

Criminal Justice Act 2006

Criminal Justice Act 2007

Admissibility of Illegally and Unconstitutionally Obtained Evidence


Fair Procedure: Arrest Charge Trial


Powers Of Detention After Arrest

Offences Against the State Act 1939 - Detention Provisions

Criminal Justice Act 1984: Detention Provisions

Access to Solicitor and Notification of Detention

Powers of Garda Siochana in relation to Detained Person

Judges Rules

Regulations Regarding Treeatment of Persons in Custody

S.I 119 of 1984 (Treatment of Persons in Custody in Garda Siochana Stations Regulations 1987)

Criminal Justice (Drug Trafficking) Act, 1996 - Detention Provisions

Offences Against The State (Amendment) Act, 1998 - Detention Provisions; Criminal Justice Act 2006; Criminal Justice Act 2007


Competence & Compellability of Witnesses


Process of Elicitation of testimony

  • Examination in Chief

  • Cross Examination

  • Re-examination

  • Hostile Witnesses


Competence

Physical or Mental Disability

Children

  • ‘intelligible account’

  • Criminal Evidence Act 1992 s.27

  • Part III Criminal Evidence Act 1992

  • Children Act 1997

Vulnerable/Intimidated Witnesses Criminal Justice Act 1999

Accused’s Spouse

  • Part IV Criminal Evidence Act 1992 s.22

Accused

  • ‘autrefois acquit’

  • nolle prosqui

Diplomats

  • Diplomatic Relations Immunity Act 1967


Corroboration


Definition

- Corroboration required as a matter of Law

Treason Act 1939

Road Traffic Act 1961

Perjury

^ Corroboration required as a matter of Practice or at least a warning to the jury

- Accomplice

- Witness Protection Programme

Corroboration Highly Desirable

Visual Identification Evidence

Discretion to give Corroboration Warning

Children’s Evidence: s 28 Criminal Evidence Act 1992

Sexual Offence Complainant: s. 7 Criminal law (Rape) (Amendment) Act 1990

Future of the corroboration requirement.


The Rule Against Hearsay


  • confessions

  • statements forming part of the “res gestae”

  • dying declarations of the deceased on charges of homicide

  • declarations against proprietary interest

  • declarations by deceased persons in the course of duty

  • declarations as to pedigree matters

  • declarations as to public rights

  • post-testamentary declarations by testators as to contents of their wills

  • other declarations by deceased persons

  • statements proven as original evidence

  • admissibility of documentary evidence


Opinion Evidence


The ‘Opinion’ Rule

Admissibility of Expert Evidence


Similar Fact Evidence


Admissibility of Evidence of Disposition & Character


Cross Examination of the Accused under the Criminal Justice (Evidence) Act 1924

S. 1 (e) & S. 1 (f)

Loss of the Shield: Section 1 (f)

Abandonment of the “Hudson” Doctrine / ^ DPP v McGrail CCA 18/12/89

Imputations

Evidence in Rebuttal

Judicial discretion/divisibility of character evidence.


Privilege

Private Privilege

Privilege against self incrimination, marital privilege, legal professional privilege, without prejudice communication

Public or State or Crown Privilege


Right to Silence; Privilege Against Self-Incrimination

Inferences From Silence

Right to silence

Criminal Justice Acts 2006 and 2007


^ READING LIST 2008


General Texts (in alphabetical order) – students should refer to at least TWO of these texts.

Ruth Cannon & Niall Neligan, Evidence, Thomson Round Hall (2002)

Caroline Fennell, Law of Evidence in Ireland, Butterworths (2nd ed, 2004)

Ross Gorman, Evidence Law, Thomson Round Hall (2006)

John Healy, Irish Laws of Evidence, Thomson Round Hall, (2004)

Liz Heffernan, Evidence: Cases and Materials, Thomson Round Hall (2005)

Declan McGrath, Evidence, Thomson Round Hall (2004)


^ Most recent updates

Students should read the updates on Evidence and Procedure in the Irish Criminal Law Journal 2005-2008 in order to become aware of any changes in the law since the date of publication of these texts.


Students should also be familiar with the changes introduced by the following pieces of legislation all of which post-date the above texts:

The Criminal Justice Act 2006

The Criminal Justice Act 2007


^ Specific areas/Reference

(to be dipped into for specific points relevant to the syllabus rather than read in detail)

Dermot Walsh, Criminal Procedure, Thomson Round Hall (2001)

Eamonn Cahill, Discovery in Ireland, Thomson Round Hall (2nd ed., 2001)

Liz Heffernan, Scientific Evidence, Fingerprints and DNA, Firstlaw (2006)

Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure, Thomson Round Hall (2007)


Examination format 2008


The examination will be of 3 hours duration.

The paper is divided into two parts, Part A and Part B.

Part A contains one compulsory question, which must be answered by all candidates. The issues in the compulsory question in Part A may relate to ANY part of the course. What the examiner is looking for in Part A is a general overall knowledge of all major aspects of the course.

Part B contains three questions designed to test more detailed knowledge of specific areas, and candidates must answer two out of these three questions.


End.







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