R v Boater. Facts in issue: Did Boater intend to kill the dog and was he reckless as to his actions? The main issue here is that did he have the knowledge/awareness of his actions and what was going on?

However it is necessary to point out that expert evidence is not really an issue here because a normal person would believe the same. That is, he doesn’t like my dog; therefore he would not take very good care of them. Thus, based on the Criminal Damages Act 1971, if it is clear that Boater did not like the dog, there need not be an issue of intent, Boater might have been careless with taking care of the dog, and under the Act there is no need for the experience or testimony of an expert witness. Mr Oars himself can testify as to prove recklessness or carelessness of Boater.  

Initially, the test put to the jury would have been an objective one as in Caldwell but now; the test for the jury would be one of subjective- which means it is now left to the jury to note if the accused has been reckless.

Police officers - defence witness.

Statement by police officer is admissible.

Issue two: police statement that ampoules of muscle relaxant and ampoules of diamorphine were stored on the same shelf.

Can inference be drawn from the police statement that the death of the dog was an act of intention or recklessness because both muscle relaxant and diamorphine were stored on the same shelf? No. the reason is because the statement made by the police would back the defence of accident. So, inference that it was an accident can be drawn. Thus, statement made by the police is admissible based on its relevance. However, the judge can exclude this by exercising her discretion to exclude.

Issue three: police officer’s discovery by the expert witness that 3 out of 4 other rottweilers died after being administered diamorphine while under Boater’s care.

The fact that 3 out of 4 rottweilers died while being in Boater’s care rebuts his defence of accident and makes his testimony of defence less credible. This is shown in the case of Smith (1915). In this case, the evidence that Smith’s three brides all drowned in their baths were identical circumstances that leads inexorably to the conclusion that Smith murdered all of them.

 Common law and statutes (section 101 Criminal Justice Act 2003) states that “bad character” of a party is inadmissible evidence but there are exceptions. Similar fact evidence is one exception to the exclusionary rule on bad character that makes it admissible in court.

Section 98 of the Criminal Justice Act 2003 defines bad character as references in this chapter to evidence of a person’s bad character are to evidence of, or of disposition towards misconduct on his part other than evidence which a) has to do with the alleged facts of the offence with which the Defendant is charged or

b) Is evidence of this conduct in connection with the investigation or prosecution of offence.’

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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 rebutting 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 jury because it rebuts his defence of accident (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, Sang. 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 Clifford, 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 fabricated 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 defence.

However, this is left to the discretion of the judge

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 statement.

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 contains. 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.

Mr Stern- possible defence witness

Statement is inadmissible

Issue seven: statement by Mr Stern that Boater had told him there was an accident at the surgery due to mislabelling.

Following the general rule at common law, the hearsay rule generally prevents a witness’s previous consistent statement being admitted as evidence of the facts stated. Thereby making Mr Stern’s testimony inadmissible in court. The rule against narrative was affirmed in Roberts.

Mr Stern’s testimony can only be acceptable if there are exceptions. In this case, there are no exceptions in either section 118 or section 120 CJA 2003

The jury must decide whether the prosecution has proved beyond reasonable doubt as to convict Mr Boater of charges under Criminal Damage Act 1971.

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