In this case Boater's bad character can be raised as an issue of misconduct because the dog's death might have been as a result of Boaters recklessness, so there is an exception, making it admissible under the issue of similar fact evidence: section 101 (d) of the Criminal Justice Act 2003 which states that "in criminal proceedings evidence of the defendant's bad character is admissible if, but only if- it is relevant to an important matter in issue between the defendant and the prosecution".
Similar fact evidence that 3 out of 4 dogs died of traces of diamorphine while under his care is admissible for the purpose of rebuttingiii the defence and it is relevant to the fact in issue because it possesses some probative weight. This would not affect the fairness of the trial because the balance of prejudicial effect against probative value is low and the evidence discovered is relevant to the fact in issue. Nonetheless, the judge would generally have to give an appropriate direction to the jury on this point.
Issue four and five: the fact that Boater was reprimanded four years ago, by the Disciplinary Tribunal of the National Veterinary Association, for malpractice and the fact that there might be animosity between Dr Rivers (the expert who carried out the investigation) and Boater because they do not get along very well. The fact that Boater had previously been reprimanded by the disciplinary committee for malpractice is a relevant issue before the jury5 because it rebuts his defence of accidentiv (section 1 (3) (a) of the Criminal Evidence Act 1898) and makes his testimony less credible.
Under section 101 (3) of CJA 2003, it can be used as to the emphasis of his bad character but cannot be admissible as to prove the truth of the fact in issue. To prove the truth of the fact in issue, section 78 of PACE 1984 applies under statute and at common law, Sangv. That is, is it unfair if the prosecution uses the issue of his reprimand to prove the truth of the fact in issue? Can prosecution cross-examine the accused on previous convictions? – NO because it can prejudice the jury against the accused (PV<PE).
However, it may be admissible under similar fact evidence if the reprimand due to malpractice was also about the death of dogs due to diamorphine as such a person is less likely to make a mistake. That is, sufficiently comparable to raise inference that accused (Boater) committed the act he is been charged with. In Hill v Cliffordvi, the partners were struck off the dentists register by the General Medical Council because they had been guilty of misconduct and the court of appeal accepted that this was admissible evidence.
Following that, evidence that Boater had been guilty of misconduct a few years back should be admissible because it is relevant to the issue of his misconduct. According to the rule in Turner (1975), which states that in matters of science or trade, opinion of experts are admissible, where the information is outside the experience of the judge or jury. The opinion of an expert is unnecessary if the judge or jury can form conclusions without help, here, the jury cannot form conclusions without help because they do not have the adequate knowledge of the subject matter.
Dr Rivers would testify as an expert witness for the prosecution. Expert evidence is admissible but since Boater and Dr Rivers do not get along, Boater may want to challenge Dr River's character. That is, implying that because there is animosity, Dr Rivers may have fabricatedvii his analysis of the dogs. However, challenging the character of the prosecution witness means that Boater loses his shield.
In other words, Boater could not be questioned on collateral issues of credibility such as his reprimand but now that he has challenged the character of the prosecution, he has thrown away his shield and can now be cross- examined by the prosecution on his character- section 101 (g) of the Criminal Justice Act 2003 which states that "In criminal proceedings evidence of the Defendant's bad character is admissible if, but only if the defendant has made an attack on another person's character".
It is necessary to point out the question of imputation. What happens if the imputation is necessary on the part of the defence case? Under Section 101 (3) CJA 2003 states that under these circumstances as 'the court must not admit evidence under subsection 1 (d) (g) if, on application by the defendant to exclude it, if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceeding that the court ought not to admit it..
Here, because there is animosity between Boater and Dr Rivers, accusing him of fabrication may be a necessary part to his defence making Dr Rivers's testimony unfair. This is so because character of the prosecutor is cast to show their unreliability as witnesses independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defenceviii. However, this is left to the discretion of the judgeix
Miss Cox – defence witness Statement made is admissible. Issue six: statement mad by Miss Cox that Boater had looked at the ampoule and said 'this is just muscle relaxant' before administering it to the dog. Is Miss Cox statement 1st hand hearsay – section 116 CJA 2003? – NO The statement by Miss Cox is prior consistent statement which is not admissible because it an out of court statementx. However, there is an exception. At common law, it is admissible under res gestae.
Res gestae means a statement made spontaneously as an intrinsic part of the relevant act is admissible evidence of the facts it contains6. One category of res gestae which is stated under Section 118 (4) (b) of the Criminal Justice Act 2003 "that any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if- the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement that this statement is made admissible"
The statement made by Boater relates to the act that is carried out. Also the statement was made by him and no one else This is admissible under evidence of what is said. Boater says to Miss Cox, just prior to injecting the dog, that it was a muscle relaxant. Injection the dog is the relevant act accompanying the statement made making Boaters defence that it was accident more probable.