Idea for an answer to Evidence 2010 Q3

1. Evidence - 2010 paper - Question: 3
The DPP intends to rely primarily on the testimony of two Witness
Protection Programme (WPP) witnesses and, if necessary, the written
statements they made earlier to gardai.
…
He also says that the WPP witnesses were former rivals of his.
…
He believes that they struck a deal with the DPP after they were
threatened with prosecution for murder and other offences
In DPP V. Gilligan SC, 23rd November 2005 the Supreme Court rejected submissions
that stricter evidentiary controls should apply to ‘supergrasses’ or Witness Protection
Programme witnesses. While the two potential witnesses are not accomplices, given
the reliability concerns that would attach to two WPP witnesses (on the basis that the
WPP by offering incentives may encourage unreliability) who appear to have been
involved in at least one shoot out it would appear that these two would require
corroboration to an extent at least equivalent to accomplices.
The potential weaknesses of accomplice evidence was exposed in People (DPP) v.
Ward, SCC, 27th November 1998 (CCA); [2002] R (CCA) when an initial conviction was
achieved on the basis of evidence given by one Charles Bowden, evidence which was
later shown (in other criminal trials) to be completely unreliable.
In Gilligan Denham J set out three requirements for corroboration evidence:
Firstly that the evidence must tend ‘to implicate the accused in the commission of the
offence’.
Secondly, that the second piece of evidence must be independent from the first.
Thirdly, the corroborating evidence must be credible.
The requirement for independent proof means that a first piece of evidence (or a witness
testimonial) be confirmed by other evidence (a second piece of evidence). In
circumstances where two witnesses each attract corroboration warnings because of their
potential unreliability then it was [in the past at least] the view that they could not
corroborate each other (DPP v. Kilbourne [1973] AC 729, per Halisham LC).
In People DPP v. Morrisey CCA, 10th July 1998 Barron J said:

2. Corroboration must come from independent evidence. The mere fact that two parties in
conspiracy with each other give the same evidence does not make the evidence of one
corroboration of the evidence of the other.
For instance, in People (DPP) v. Meehan SCC, 29th July 1999 the court rejected the
evidence of a number of accomplices, due to unreliability, but convicted the accused
upon the evidence of an accomplice who had been corroborated independently by a
unrelated credible witness.
However, in Gilligan the Supreme Court appears to accept that it is possible for
accomplices to corroborate each other - although this was not specifically addressed.
In the present case, the two potential witnesses are described as ‘former rivals’ of
Harry’s, are both currently in the WPP, and in the past appear to have been involved in
at least one ‘shoot-out’ together. There would appear to be enough indications that
they are, or were, in conspiracy [but perhaps it would be safer to ask for directions on
this point] and so could not corroborate each other.
This is important because where the rule requires that certain charges or evidence has
to be corroborated, the court is not permitted to convict the accused on uncorroborated
evidence, in fact where no corroboration has been tendered the defence may seek a
direction that the prosecution has failed to prove its case.
If the evidence by the two potential witnesses was to be accepted in evidence it would
attract a corroboration warning. By strict common law rule accomplice witnesses attract
a mandatory warning [and, as I think I set out, it should be the same for Harry’s ‘rivals’].
For mandatory warnings the trial judge is required to caution the jury that the witness [or
evidence] is of a type considered potentially unreliable or suspect by the law, and that
the jury should be slow to convict the accused upon this evidence unless corroborated
by a second witness or piece of evidence.
He was recently furnished with the statements received from the two
witnesses, which set out in detail Harry’s drugs importation and
distribution operations, including the criminals he hired, the
warehouses he used, and the cargo he shipped in the past three
months.
In People (DPP) McGrail [1990] 2 IR 38 (CCA) the accused claimed that he had never
made the incriminating statements the gardaí claimed. During cross examination it was
specifically put to the garda witness that he had fabricated the statements.
Subsequently the trial judge allowed cross-examination of the accused on his criminal
record (on the basis that he had dropped his shield under s. 1(f)(ii) of the Criminal
Justice Evidence Act 1924). His appeal in the Court of Criminal Appeal was successful.
Hederman J said:
The question of what construction is to be put on the words ‘imputations on the character
of the prosecution or the witnesses for the prosecution’ in the view of the court this must

3. be construed as applying only to imputations made on the character of the prosecution
or his witnesses independent of the facts of the particular case….
A distinction must be drawn between questions and suggestions which are reasonably
necessary to establish either the prosecution case or the defence case, even if they do
involve suggesting a falsehood on the part of the witness of one or the other side, on the
one hand and, on the other hand, an imputation of bad character introduced by either
side relating to matters unconnected with the proofs of the instant case.
[see pages 191 - 192 of Manual]
In R v. Busby (1981) 75 Cr App R 79 the accused elected not to testify, but wished to
give limited evidence in rebuttal of a prosecution witness’s denial of fabrication. The
trial judge refused the request, but this was overturned by the Court of Appeal which
considered that the jury should have been permitted to consider whether the prosecution
witnesses were prepared to go to improper lengths to secure a conviction.
[See page 70 of the Manual]
In the instant case I’d submit that Harry could question and raise suggestions which are
reasonably necessary to establish his defence, so allowing the jury to fully consider
whether the prosecution witnesses were prepared to go to improper lengths to secure a
conviction.
…if necessary, the written statements they made earlier to gardai.
A statement which is:
1. ‘an assertion other than one made by a person while giving oral evidence in the
proceedings’, and
2. Is tendered to the court as probative evidence of something asserted in the
statement
Is hearsay and is inadmissible
[See page 77 of the Manual]
I don’t see any exception under which the statements made by the two potential
witnesses to the gardai could be accepted under any of the hearsay rules.
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Any critique would be appreciated.