Practice Issues
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DPP v PS [2021] IECA 311
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This appeal was largely based on the mischaracterization by the trial judge of the defendant’s case in his charge in which he implied that the defence counsel had suggested the complainant was deliberately lying. Counsel had requisitioned the trial judge but the subsequent recharges exacerbated the situation and formed the appeal point after conviction. The appellant argued that defence counsel had done everything to put the case in a respectful way and ‘to ensure not to attack anyone else’s character.’ In upholding the appeal and ordering a retrial, the Court of Appeal stated at paras 26, 27:
Counsel must make it clear to the witness in any given case that the witness’s veracity is under challenge, however, in certain circumstances it is not strictly necessary that the challenge be expressly stated in minute detail. We are persuaded in the circumstances that the judge’s comment during the summing-up went beyond the legitimate comment by a judge and undermined the defence case significantly.
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Bail
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In many cases, particularly in family or domestic disputes, a prosecution witness may change their mind. They may wish to withdraw their statement and be unwilling to give evidence. In those case, a prosecution may not have much chance of succeeding and that will be a matter for the court. But an important factor will be the consideration of bail where there is a domestic dispute particularly if it includes an offence under the Domestic Violence Act 2018 such as coercive control. If an application for bail is made and there are objections to bail, the State may call the alleged victim of the offence to give evidence in the bail hearing as to why the defendant should not be given bail. If that witness has then decided to withdraw their statement, and has reconciled with the victim, they may wish to appear as a witness in support of bail for the defendant. That results in a very tricky situation where a legal practitioner must discuss the issues with a witness in support of their client but who is a prosecution witness. Given the sensitive and delicate nature of such cases, one solution is inform the court of the situation and ask that the any issues that are being discussed be done in the presence of an independent member of An Garda Siochana.
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