Higher Courts Appeals
Cases
Considine v Shannon Regional Fisheries Board and Ors
[1994] 1 ILRM 499
Costelloe J
The Shannon Regional Fisheries Board issued a summons dated 29 January 1991 against the plaintiff in these proceedings under the provisions of the Fisheries (Consolidation) Act 1959 alleging breaches of the provisions of that Act. The summons was heard in the local District Court on 22 March 1991 and was dismissed. An appeal was brought to the Circuit Court by notice of 3 April 1991 by the Shannon Regional Fisheries Board under the provisions of s. 310 of the 1959 Act. That section allows the prosecutor to appeal to the Circuit Court against an acquittal in the District Court of a complaint brought on a summons.
The plaintiff in these proceedings then issued a plenary summons in which a declaration is sought that s. 310 of the 1959 Act is unconstitutional. The plaintiff’s submission is that the right of the citizen to liberty involves immunity from re-trial following an acquittal. It is claimed that this right is enshrined in Article 38.1 of the Constitution, which provides: ‘No person shall be tried on any criminal charge save in due course of law’ and it was urged that the phrase ‘in due course of law’ embraces the concept to which I have referred. It is said that an appeal against acquittal would amount to a re-trial contrary to the concept which, it is said, is enshrined in Article 38.1 and that, accordingly, s. 310 of the Act infringes the Constitution and is invalid.
I can summarise the defendants’ submissions as follows. The defendants referred to Article 34.3.4° of the Constitution which provides: ‘The courts of first instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.’ And it is pointed out that, if construed according to its literal meaning (as the defendants say it should be construed) this means that the Oireachtas may by law provide that courts of local and limited jurisdiction are subject to an appeal to the Circuit Court and that that is what the Oireachtas did, that by enacting the 1959 Act the Oireachtas carried out a legislative act which was permitted and, indeed, contemplated by Article 34.3.4° of the Constitution.
The defendants submit that the plaintiff must show that these clear words of the Constitution are in some way qualified by some other constitutional provision. It is pointed out by the defendants that the only provision of the Constitution on which the plaintiff relies in this case is Article 38.1. The defendants say that the Supreme Court has held in People (DPP) v. O’Shea [1982] IR 384 ([1983] ILRM 549) that Article 38.1 cannot have the construction on which the plaintiff relies. This Court, it is said, is bound by the decision in People (DPP) v. O’Shea and should dismiss the plaintiff’s claim. If the O’Shea case has determined the issue, as the defendants suggest, then of course I am bound by it, and it seems to me that I should first of all consider this submission on the defendants’ behalf.
The doctrine of judicial precedent provides that a principle of law which is the basis for an actual decision of the Supreme Court must be followed by the lower courts. Like many general principles, the principle of judicial precedent can be easily stated but may be difficult to apply in practice. And undoubtedly there may be instances where the ratio of a case is not always easy to discover. Again, the principle is clear. The ratio of the case is discovered by determining what proposition of law justified the decision in the light of the material facts which the court decided. It is, of course, clear that there may be more than one ratio in a decided case.
In relation to the O’Shea case, I think I can take as correct the summary of the facts as given in the first paragraph of the headnote. It reads:
At the trial of the respondent, O’Shea on indictment in the High Court (Central Criminal Court) in March 1980, the trial judge, being of opinion that a conviction of the respondent based upon the evidence adduced by the prosecution would not be warranted, directed the jury to record a verdict of not guilty in respect of each count in the indictment. The Director of Public Prosecutions, being dissatisfied with the said direction and verdicts, served notice of an appeal by him to the Supreme Court against the verdicts. The respondent disputed the jurisdiction of the Supreme Court under Article 34.4.3° of the Constitution to entertain an appeal from a verdict of not guilty duly recorded by a jury at the trial of an accused on indictment in the High Court (Central Criminal Court).
It will be clear that the O’Shea case was concerned with the appellate jurisdiction of the Supreme Court under Article 34.4.3° of the Constitution which provides that: ‘The Supreme Court shall … have appellate jurisdiction from all decisions of the High Court …’. It is obvious that the Supreme Court was dealing with Article 34.4.3° and not with Article 34.3.4° which deals with appeals from the District Court to the Circuit Court. Secondly, it is clear that the O’Shea case was dealing with the right of an appeal from a verdict of a jury in a criminal trial in the Central Criminal Court, whereas in this case the court is concerned with an appeal from a summary trial in the District Court.
There were a number of legal principles laid down by the Supreme Court, principles which, of course, bind this Court. The first principle which the Supreme Court laid, down was that the direction of the trial judge and the verdict of the jury subsequent to such direction was a decision within the meaning of Article 34.4.1°. This is a legal principle which is not of any concern in this particular case. It is also clear that the Supreme Court laid down another legal principle. It was argued by the respondent in the appeal in the O’Shea case that the appellate jurisdiction of the Supreme Court under Article 34.4.3° must be read subject to the provisions of Article 34.5 relating to trial by jury. It was said that although the appellate jurisdiction of the Supreme Court was given in clear terms in the article to which I have referred, nonetheless that article must be read as being qualified by Article 38.5 which provides that: ‘Save in the case of a trial of offences under ss. 2, 3 or 4 of this article, no person shall be tried on any criminal charge without a jury.’
What is clear from the judgments in the O’Shea case is that this argument was considered at length and with great care by the judges of the Supreme Court and that by a majority it was decided that Article 38.5 did not qualify the provisions of the earlier article. And it is clear from reading the minority judgments that they disagreed with the conclusion of the majority on this point. The majority were of the view that this article, namely 38.5, was not a bar to the appellate jurisdiction claimed in aid by the DPP in the O’Shea case. But there was another issue considered in the O’Shea case. Had this other issue not been decided as it was, the appeal of the DPP would not have been allowed. The other issue decided by the Supreme Court was this. An additional argument was advanced by the respondent to the effect that Article 34.4.3° is to be read not only in conjunction with Article 38.5 but also in conjunction with Article 38.1, which is the article in contention in this case. The submission made on behalf of the respondent in the O’Shea case was that the appellate jurisdiction of the Supreme Court was limited by the provisions of Article 38.1, the exact argument which is before this Court. It is clear from the judgments of the Supreme Court that what the respondent in the O’Shea case urged was that appellate jurisdiction could not be exercised by the Supreme Court in cases of an acquittal on a criminal charge by the Central Criminal Court. In the O’Shea case the then Chief Justice dealt explicitly with this point at p. 403 of the report. Having dealt with the submission made by the respondent in relation to the right to trial by jury, the learned Chief Justice then considered the argument under Article 38.1 as follows:
Counsel for the respondent also submitted that the provision in Article 38.1, which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed. In my view, this is to put forward the same proposition that was rejected in Feran’s case. The clear words of the Constitution cannot be limited or restricted by advertence to what had been the law, the policies or the procedures formerly recognised or practised. Further, I do not see that trial in due course of law has any relevance to the question whether the decision arrived at as a result of the trial may or may not be appealed. The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.
The matter was also considered in the judgment of Walsh J. On pp. 415–417 of the report he considered the submission made by the respondent on this point and rejected it. The third judgment making up the majority of the court was delivered by Hederman J. Hederman J did not expressly deal with this point but, by implication, he must have agreed with the conclusion of his colleagues.
I therefore conclude as follows. It seems to me that the decision of the Supreme Court is that Article 38.1 of the Constitution does not constitute an exception to the right of the appellate jurisdiction of the Supreme Court conferred by Article 34.4.3°. It is true that the Supreme Court was not dealing with Article 34.3.4° and was not dealing with an appeal from the District Court to the Circuit Court. However, it seems to me that the principle of law established by the Supreme Court’s decision must apply with equal force to the provisions of that article and I must therefore hold that in the light of the O’Shea case it has now been established that Article 38.1 would not prohibit an appeal under Article 34.3.4° from the District Court to the Circuit Court. Bound as I am by the principle established in the O’Shea case, I must therefore dismiss the plaintiff’s claim.
Considine v. Shannon Regional Fisheries Board
[1994] 1 I.L.R.M. 499 (HC); [1998] 1 I.L.R.M. 11
Hamilton CJ
This is an appeal brought by the appellant, Noel Considine against the judgment of the then Costello J delivered on 18 November 1993 (see [1994] 1 ILRM 499) and the order made in pursuance thereof on the same date whereby the appellant’s claim for:
a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 which purport to empower the prosecutor to appeal against the acquittal of an accused person of a charge of an offence under the provisions of the said Act, disregard the requirements of natural and constitutional justice, are offensive to the provisions of the Constitution and in particular of Article 38 thereof, and are of no legal force and effect
and other ancillary relief was dismissed.
Impugned section
S. 310(i) of the Fisheries (Consolidation) Act 1959 provides that:
Where any proceedings in the District Court for an offence under any provision of this Act are dismissed, whether on the merits or without prejudice, the prosecutor may appeal against the order of dismissal to the judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate.
S. 310(ii) of the said Act provides that:
Where by virtue of subs. (1) of this section a right of appeal against an order of the District Court in any proceedings under this Act lies to a judge of the Circuit Court, such judge on such appeal may vary, confirm or reverse such order, and the decision of such judge on such appeal shall be final and conclusive and not appealable.
This section grants to the prosecutor of an offence, under any provision of the said Act, the right to appeal against an order of dismissal made by the District Court and to a judge of the Circuit Court the power to vary, confirm or reverse such order.
The facts
The facts relevant to the issues raised in this appeal are as follows:
1. The plaintiff was prosecuted by the first named defendant by way of summons dated 22 January 1991 charging him:
That you did on 23 July 1990 at the River Fergus in the townland of Carrownanelly, in the County of Clare in the court area and district aforesaid did,
1. Make use of a net, the use of which in such waters for the purpose of taking fish is prohibited contrary to s. 96(1) of the Fisheries (Consolidation) Act 1959 as amended by s. 10 of the Fisheries Amendment Act 1962 and the Fisheries Act 1980.
2. Have in your control one unlawfully captured salmon contrary to s. 183(2)(a) of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries Act 1980.
3. Use a boat as an aid to the commission of an offence under the provisions of the Fisheries Acts 1959 to 1987 contrary to s. 285(a) of the Fisheries (Consolidation) Act 1959 as inserted by s. 24 of the Fisheries (Amendment) Act 1962 and amended by the Fisheries Act 1980.
4. Obstruct Assistant Inspector Gerard Healy a duly authorised officer in the execution of his duties contrary to s. 301(7) of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries Act 1980.
2. Each of the above four charges relates to an offence triable summarily by the District Court.
3. The said summons came on for hearing before the learned District Court judge sitting at the courthouse, Ennis in the County of Clare on 28 March 1991. The plaintiff appeared in answer to the said summons and after a full hearing, each of the charges against him was dismissed and the plaintiff herein was acquitted on each of the said charges.
4. A notice of appeal dated 3 April 1991 was served upon the plaintiff notifying the plaintiff that the first named defendant herein was appealing the said dismissal and acquittals to the judge of the Circuit Court sitting at Ennis in the said county.
5. The said notice of appeal was served upon the plaintiff in reliance upon and pursuant to the provisions of s. 310 of the Fisheries (Consolidation) Act 1959.
6. By plenary summons dated 5 June 1991 the plaintiff instituted these proceedings in which he claims a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 are unconstitutional; he further claims a declaration that the notice of appeal against the order of the learned district judge is a nullity; and certain other consequential reliefs.
7. The defendants in these proceedings delivered a defence on 31 March 1993 denying that s. 310 is unconstitutional; that the notice of appeal is a nullity; and denying that the plaintiff is entitled to the alleged or any relief.
As appears from the judgment of the learned trial judge, Costello J (as he then was) delivered on 18 November 1993 the plaintiff sought a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 (hereinafter referred to as the Act) are unconstitutional on the grounds that:
(i) the right of the citizen to liberty involves immunity from retrial following an acquittal;
(ii) that this right is enshrined in Article 38.1 of the Constitution which provides that:
No person shall be tried on a criminal charge save in due course of law;
(iii) the phrase ‘in due course of law’ embraces the concept that the right of the citizen to liberty involves immunity from retrial following an acquittal;
(iv) an appeal against an acquittal, as permitted by s. 310 of the Act, would amount to a retrial contrary to the aforesaid concept, alleged to be enshrined in Article 38.1 of the Constitution, and
(v) s. 310 of the Act, which permits such appeal is invalid having regard to the provisions of Article 38.1 of the Constitution.
In the High Court, the defendants (the respondents herein) had relied on the provisions of Article 34.3.4° of the Constitution which provides that:
The courts of first instance shall include courts of local and limited jurisdiction with a right of appeal as determined by law
and submitted that:
(i) the District Court and the Circuit Court are courts of local and limited jurisdiction, established by law in pursuance of the provisions of the Constitution (see the Courts (Establishment and Constitution) Act 1961);
(ii) it was permissible under the terms of Article 34.3.4° of the Constitution for the Oireachtas to provide by law that the decisions of the District Court be subject to an appeal to the Circuit Court;
(iii) the Oireachtas in enacting the Act and, in particular s. 310 thereof, carried out a legislative act which was permitted and contemplated by Article 34.3.4° of the Constitution;
(iv) the provisions of the said Article 34.3.4° are not in any way qualified by the provisions of Article 38.1 of the Constitution, and
(v) the High Court was bound by the decision of the Supreme Court in People (DPP) v. O’Shea [1982] IR 384; [1983] ILRM 549 (hereinafter referred to as the O’Shea case).
The question at issue in the O’Shea case was:
Does an appeal lie at the suit of the prosecution direct to the Supreme Court against a verdict of not guilty reached by a jury in the Central Criminal Court?
This question was answered in the affirmative by the majority of the court, consisting of O’Higgins CJ, Walsh and Hederman JJ, the other members of the court, Finlay P and Henchy J dissenting.
The O’Shea case dealt with the provisions of Article 34.4.3° which provides that:
The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
It had been submitted to the Supreme Court in the O’Shea case that this sub-article of the Constitution should be read in conjunction with Article 38.5 but also in conjunction with Article 38.1 and that the appellate jurisdiction of the Supreme Court could not be exercised by the Supreme Court in cases of acquittal on a criminal charge by the Central Criminal Court.
Dealing with the submission with regard to the provisions of Article 38.1 O’Higgins CJ stated at pp. 403/557:
Counsel for the respondent also submitted that the provision in Article 38.1, which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed. In my view, this is to put forward the same proposition that was rejected in State (Browne) v. Feran [1967] IR 147. The clear words of the Constitution cannot be limited or restricted by advertence to what had been the law, the policies or the procedures formerly recognised or practised. Further, I do not see that trial in due course of law has any relevance to the question whether the decision arrived at as a result of the trial may or may not be appealed. The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.
In this passage the claim made that the provision in Article 38.1 which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed was decisively rejected.
Judgment
The learned trial judge carefully considered the judgments delivered in the O’Shea case and concluded his judgment in the following terms:
I therefore conclude as follows: It seems to me that the decision of the Supreme Court is that Article 38.1 of the Constitution does not constitute an exception to the right of the appellate jurisdiction of the Supreme Court conferred by Article 34.4.3°. It is true that the Supreme Court was not dealing with Article 34.3.4° and was dealing with an appeal from the District Court to the Circuit Court. However, it seems to me that the principle of law established by the Supreme Court’s decision must apply with equal force to the provisions of that article and I must therefore hold that in the light of the O’Shea case, I must therefore dismiss the plaintiff’s claim.
Appeal
From this judgment and order made in pursuance thereof, the appellant has appealed to this Court on the following grounds:
1. The learned High Court judge misdirected himself in holding that the decision in People (DPP) v. O’Shea is either relevant to the issues to be determined herein, or, a fortiori, to the establishment of a principle of law appropriate to such determination.
2. The learned trial judge failed to give any, or any adequate consideration to the submission that neither the Constitution of Saorstát Éireann, nor the Constitution afford or affords any sanction for the power of the prosecution to appeal an acquittal on the merits by a court of competent jurisdiction other than within the narrow scope of Article 34.4.3° of the Constitution.
3. The immemorial principle that the law does not permit a man to be twice in peril of being convicted of the same offence formed part of the jurisprudence continued in force by the Saorstát Constitution and subsequently the Constitution.
4. By virtue of the principle referred to in the last preceding ground an acquittal of an accused by a court competent to try him is a bar to his being put in peril of conviction of the same offence to which principle the learned judge failed to have any or any proper regard.
Submissions of appellant
Counsel for the appellant, in support of the aforesaid grounds of appeal submitted that:
(i) S. 310 of the Act was invalid having regard to the provisions of the Constitution because it infringes the long established principle enshrined in the common law that no appeal shall lie from a decision dismissing a criminal charge;
(ii) the appellant has a constitutional right to be tried in respect of a criminal offence in due course of law;
(iii) a trial in due course of law involves the aforesaid principle that no appeal would lie from the dismissal of such charge;
(iv) the provisions of Article 38.1 of the Constitution should be interpreted so as to incorporate into such provisions an implied right that there should be no appeal against a decision to dismiss a criminal charge;
(v) the guarantee against double jeopardy is of a fundamental nature and is recognised by implication in the Constitution;
(vi) a verdict of not guilty on a criminal charge is inviolable in the light of the Constitution;
(vii) the decision of the Supreme Court in O’Shea’s case was not binding on the learned trial judge in the instant case.
Submissions on behalf of the respondents
Counsel on behalf of the respondents repeated the submissions which had been made on behalf of the respondents in the High Court and which have been set out in the earlier portion of this judgment.
He further submitted that the learned trial judge was correct in law in his reasoning and conclusions which are set out in that portion of his judgment which has already been quoted herein and which sets forth his conclusions.
He further submitted that the question at issue in this appeal is not whether there existed a rule of common law that no person might be tried twice for the same offence which survived the enactment of the Constitution but rather whether it was competent for the Oireachtas under the Constitution to enact legislation providing for an appeal against the acquittal of a person charged with an offence tried summarily in a court of limited jurisdiction viz. the District Court.
He submitted that the terms of Article 34.3.4° of the Constitution, which provides that:
the courts of first instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law
are clear and explicit, are not qualified in any way by any other provision of the Constitution, in particular Article 38.1, and permit the legislature to enact legislation determining rights of appeal from the decisions of courts of local and limited jurisdiction and that this provision of the Constitution, being clear and explicit should not be interpreted as excluding an appeal in respect of a criminal charge.
He submitted that, irrespective of the nature of the common law rule, it was always subject to the right of parliament or the Oireachtas to legislate for an appeal against the dismissal of a charge dealt with summarily to an appropriate court and such legislation was frequently enacted.
He further drew the court’s attention to the provisions of s. 18(2) of the Courts of Justice Act 1928 which acknowledged such right of appeal in providing that:
Where immediately before the commencement of Part III of the Principal Act, an appeal lay in a criminal case at the instance of a complainant or prosecutor against an order of a district justice appointed under the District Justices (Temporary Provisions) Act 1923 (No. 6 of 1923) an appeal of the like kind shall lie in such criminal cases at the instance of a complainant or prosecutor from an order of a justice of the District Court.
The said section was re-enacted by s. 48(1)(a)(I) and s. 48(3) of the Courts (Supplemental Provisions) Act 1961 (No. 39 of 1961).
Attention should also be drawn to the provisions of s. 5(1) of the Courts of Justice Act 1928 (No. 15 of 1928) which provided that:
In addition to the jurisdictions conferred on the Court of Criminal Appeal by s. 34 of the Principal Act, the Court of Criminal Appeal or, on appeal, the Supreme Court shall have the following jurisdictions, that is to say:
…
(b) Where the court reverses a conviction in whole, the court shall have jurisdiction to make an order (in this section referred to as an order for a retrial) authorising the person in respect of whom such conviction was obtained to be retried for the same offence as that which was the subject of such conviction ….
The legislature therein provided that in the case of a person who had been convicted of an offence and whose conviction had been quashed by the court he could be retried on the same offence if the court so directed.
While this section was repealed by the Criminal Procedure Act 1993, the effect of its provisions was re-enacted by s. 3 thereof which provided that on the hearing of an appeal against conviction of an offence the court may (b) quash the conviction and order the applicant to be retried for the offence.
Counsel further referred to the provisions of:
(i) S. 2 of the Summary Jurisdiction Act 1857 (as amended by s. 51 of the Courts (Supplemental Provisions) Act 1961) which provided for an appeal by way of case stated to the High Court;
(ii) Ss. 51, 53 and 54 of the Fisheries Act 1850 which provided for a right of appeal against an acquittal in respect of offences under the said Act;
(iii) S. 19 of the Inland Revenue (No. 2) Act 1861 which also provided for such right of appeal;
(iv) S. 100 of the Fisheries Act 1939 which also provided for such right of appeal
and submitted that:
(1) the common law rule, relied on by the appellant, was always subject to a right of appeal by the complainant or prosecutor against an acquittal where that right of appeal was statutorily conferred in clear and precise terms free from ambiguity;
(2) by virtue of the provisions of Article 34.3.4° of the Constitution, the legislature was empowered to legislate the nature of the rights of appeal from courts of local and limited jurisdiction;
(3) such power included the right to legislate for appeals in relation to the jurisdiction of such courts in both civil and criminal matters;
(4) in enacting the Act and in particular s. 310 thereof the legislature was acting in pursuance of such constitutional powers.
The issue
The issue for determination by the court is whether the provisions of s. 310 of the Act are invalid having regard to the provisions of the Constitution.
The said provisions having been passed by both Houses of the Oireachtas and signed by the President are entitled to the presumption that they are not repugnant to the Constitution and the onus is on the appellant, who is alleging such repugnancy, to establish that the said section is clearly repugnant to the provisions of the Constitution.
Double jeopardy
It was conceded during the course of argument by counsel on behalf of the appellant that if the provisions of Article 34.3.4° of the Constitution were to be considered in isolation by the court, it would be permissible for the Oireachtas to determine by law that an appeal would lie from all decisions, both criminal and civil, of the District Court.
He submitted, however, that the provisions of such sub-article should be considered and construed in the light of the provisions of Article 38.1 which provides that:
no person shall be tried on any criminal charge save in due course of law
and are subject to, and qualified by, such provision, and that, when so construed, it was not permissible for the legislature to enact legislation which would provide for an appeal against the decision to acquit a person charged with a criminal offence because such a provision would be contrary to ‘the due course of law’.
He further submitted that it was a fundamental provision of the common law that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment or punishment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.
It is, however, clear from a consideration of all the authorities that, while this was the general rule, it was subject to the right of the legislature to provide for an appeal in specified cases.
In the course of his speech in Benson v. Northern Ireland Road Transport Board [1942] AC 520 Viscount Simon LC at p. 528 of the report referred to the statement made by Lord Halsbury during the course of his speech in Cox. v. Hakes (1890) 15 App Cas 506 at p. 522 where he stated:
Your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination on that question may only be arrived at by the last court of appeal and stated:
In the light of the above pronouncements, very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge ….
It had also been stated by Palles CB in the course of his judgment in Great Southern and Western Railway Co. v. Gooding [1908] 2 IR 429 at p. 431 that:
Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that, if he be once tried before a court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.
In R. v. Duncan (1881) 7 QBD 198 Lord Coleridge CJ stated at p. 199:
The practice of the courts has been settled for centuries and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.
Palles CB in the Gooding case described this statement ‘as almost classical’. Lord Coleridge CJ, however, stated at p. 200 of the report that:
If the legislature thinks fit to declare that new trials will be granted after acquittals for felonies, misdemeanours, or both, it may of course do so.
It is clear from the foregoing, and many other authorities that the common law rule that there should be no appeal from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided that such right was given in clear and unambiguous language and that a trial ‘in due course of law’ did not necessarily involve the preclusion of a right of appeal in the event of an acquittal. As stated by O’Higgins CJ in the O’Shea case at pp. 403/558 of the report:
The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law: it denotes no more.
Decision
The court is not concerned in this case with the issue that arose in O’Shea and on which the court in that case was divided as to whether an appeal lay from an acquittal by a jury in the Central Criminal Court. The Oireachtas in the Courts and Court Officers Act 1995 (s. 44) has restored the position as to such acquittals as was generally thought to exist before the decision of the majority in O’Shea’s case. However, the following passage from the judgment of O’Higgins CJ is relevant to the issue that has arisen in this case (at pp. 397/553):
The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself.
The court is satisfied that this statement of the law — although not the inference drawn from it as to appeals from acquittals by juries — is consistent with the view of the minority in the same case that the Constitution should not be read in an uncompromisingly literal fashion if the result would violate the Constitution read as a harmonious whole.
It is, accordingly, within the context of that statement setting forth the principle underlying constitutional interpretation that the court must approach the interpretation of the provisions of Article 34.3.4° of the Constitution and having ascertained the ordinary literal meaning thereof consider whether authority can be found within the Constitution itself for giving them a meaning other than their ordinary literal meaning or whether the provisions of the Fisheries (Consolidation) Act 1959 violate the provisions of the Constitution read as a harmonious whole.
Article 34.3.4° of the Constitution provides that:
The courts of first instance shall also include courts of local and limited jurisdiction with the right of appeal as determined by law.
The said sub-article is clear and unambiguous in providing that the right of appeal from decisions of the courts therein referred to must be determined by law.
The legislature is vested with the sole and exclusive powers of making laws for the State and is free to legislate in any way it chooses, save where such legislation would be repugnant to the Constitution. In pursuance of the power, the legislature enacted the Fisheries (Consolidation) Act 1959 and in particular the provisions of s. 310 thereof.
This section provided for an appeal to the Circuit Court where any proceedings in the District Court under any provision of the Act are dismissed.
This accords with the power given to the Oireachtas by Article 34.3.4° and it has not been established by the applicant that the provisions of that sub-article are limited or qualified in any way by any other provision of the Constitution or that the provisions of s. 310 of the 1959 Act violate the Constitution read as a harmonious whole.
Consequently, the appeal in this case must be dismissed.
People (DPP) v Finlay
[2018] IECA 360,JUDGMENT (Ex tempore) of the Court delivered on the 5th day of November 2018 by Birmingham P.
1. This is an application seeking to enlarge the time within which to appeal against the severity of sentence.
2. The sentences sought to be appealed were imposed on 11th November 2016 in the Central Criminal Court. The combined or aggregate sentence was one of 14 years and was imposed in respect of three counts of rape where each count related to a different complainant and injured party. The appellant had entered pleas of guilty to three counts of rape – vaginal rape – four counts of sexual assault and, in the case of one complainant, one count of s. 4 rape or anal rape.
3. The application to extend time is grounded on an affidavit of the would-be appellant of 26th January 2018. While the affidavit was sworn in January 2018 and there is a notice of appeal of the same day, the notice of application to extend time is dated 22nd March 2018.
4. The basis on which the appellant says time should be extended is set out at paras. 10 and 11 where he says:
“Subsequent to this sentence being imposed, I discussed the consequences thereof with my legal advisers, including Senior Counsel and Junior Counsel. I say that I was advised my options in respect of the sentence imposed included:
(a) accepting the sentence and serving it accordingly or
(b) appealing against the severity of sentence.
In that regard, it was explained that I could lodge a Notice of Appeal from prison or I could instruct my solicitor to do so on my behalf. There was further explained to your deponent that any appeal must be lodged within 28 days of 11th November 2016. Your deponent formed the view that it would be desirable to lodge an appeal within the aforementioned 28-day period. I formed this view on foot of legal advice received in the aftermath of the sentence hearing on 11th November 2016 and having given consideration to the advice received thereafter. However, having received such a lengthy sentence, I did not process this advice appropriately in the immediate aftermath thereof. I did feel capable of dealing with these matters. In these circumstances, I did not take the necessary steps to act on the advice received. Furthermore, having entered a guilty plea in respect of the matters forming the subject matter of these proceedings, a part of me simply wished to put matters behind me and complete my sentence. With the passage of time, I have given the advice received renewed consideration and regret not issuing an appeal within the prescribed time period. I believe that the learned sentencing Judge imposed a sentence that was excessive and I see to appeal the severity thereof.”
5. The principles that should apply when the question of an extension of time is under consideration were discussed by the Supreme Court in the case of DPP| v. Nicky Kelly [1982] IR, a case arising from the Sallins train robbery. The Court of Criminal Appeal had applied the test laid down in Eire Continental Trading Company v. Clonmel Foods [1955] IR, but the Supreme Court said that in considering whether to grant an application for enlargement of time on the criminal side, a Court must be guided by what is required by the justice of the case. It should exercise its powers flexibly, unrestricted and unhampered by any consideration other than that which is required by the justice of the particular case in which the application is made.
6. In this case, the Court has not been persuaded that the interests of justice would be served by extending time. There are a number of factors that require to be considered. This was a case where there were three complainants and where the offending took place over a prolonged period of in excess of 13 years, the offending having occurred between 1st July 1989 and 31st August 2002. Much time has passed since the offending occurred. The interests of each of the complainants fall to be considered. There has been a very significant delay in advancing the appeal. A sentence was imposed on 11th November 2016, but the notice of application to the Court was dated 22nd March 2018 with the notice of appeal and the grounding affidavit dated 26th January 2018. The notice of application, therefore, is some 17 months later or some 16 months out of time.
7. In the Court’s view, there is a very strong public interest in bringing finality to criminal procedures. The victims are entitled to closure. Reopening the case by allowing an appeal way out of time would deny the victims the closure to which they are entitled. The point has been made by the applicant that there is no attempt to appeal against conviction and that, therefore, the role of the injured parties in a sentence appeal, if one was permitted, would be very limited. The point is made that it is recognised that even if an appeal is successful, the applicant would still be left to serve a very substantial sentence and it is suggested that that should offer some comfort to the complainants. The Court does accept that additional and different considerations would apply if an appeal against conviction was proposed, but even in relation to sentence, there must come a time when victims are entitled to get on with their lives, or, to use the language of the appellant, a stage at which they are entitled to put matters behind them.
8. The merits of the proposed appeal are also a matter to be considered. This aspect is dealt with in the notice of application as follows:
“The appellant believes that the learned sentencing Judge imposed a sentence that was excessive and seeks to appeal the severity thereof.”
In the course of the notice of appeal, there is a reference to a failure to construct a sentence that was proportionate.
9. If it was the case that the sentence imposed appeared, even on the basis of very limited information, to be one that departed very significantly from the sentence that was to be expected, then that would be a factor to which the Court would be entitled to have regard and it would be a factor that would militate in favour of extending time. However, that is not the situation here. The available information suggests that this was offending of the utmost seriousness involving three complainants, involving very protracted offending over many years and that against a background of a very significant breach of trust. Apart from the comment that the appellant believes his sentence was too severe and the observation or contention that the Judge failed to construct a sentence which adhered to the principles of proportionality, no discrete ground has been identified. Apart from the somewhat formulaic statements referred to, the appellant has not sought to point to any specific error by the trial Judge either at the stage of assessing gravity or at adjusting the sentence identified as a headline or starting sentence for mitigation.
10. Every management list in this Court involves a number of applications to extend time. Often, the extension sought is short, measured in days, but sometimes longer, measured in weeks and even months. Frequently, these applications are not the subject of controversy, the respondent confining herself to observing “that is a matter for the Court”. Where, however, the appeal is long out of time and a very substantial extension is sought and the extension is opposed, it will be incumbent on an applicant to put before the Court information which it can be argued outweighs the public interest in finality and closure for victims.
11. In the Court’s view, in this case, no real basis for the Court exercising its jurisdiction in favour of the appellant has been identified. In those circumstances, the interests of justice are served by having regard to the public interest in finality and the public interest in allowing and maintaining closure for victims. The Court is in no doubt in the present case that the interests of justice would not be served by acceding to the application.
12. The application is refused.
The People v Quilligan and O’Reilly (No. 3)
[1993] 2 IR 305
Finlay C.J.
14th July 1992
These two appeals were brought by the two accused against convictions entered against them by the Central Criminal Court on two charges of burglary.
The offences out of which the charges arose were alleged to have been committed by the two accused jointly; the trials were had jointly and the appeals have been heard together.
During the course of the appeals a submission was made on behalf of each of the appellants that s. 30 of the Offences Against the State Act, 1939, was invalid having regard to the provisions of the Constitution of Ireland, 1937.
The relevance of that issue was that the evidence established that each of the appellants had been arrested pursuant to the powers vested in the Garda Siochana by s. 30 of the Act of 1939 and had subsequently been detained for twenty-four and, eventually, for forty-eight hours pursuant to the provisions of that section.
This judgment deals only with the question as to whether s. 30 of the Act of 1939 has been established to the satisfaction of the Court to be invalid having regard to the provisions of the Constitution.
The impugned section
“30 (1) A member of the Garda Siochana (if he is not in uniform, on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid or whom he suspects of being in possession of information relating to the commission or intended commission of any such offence as aforesaid.
(2) Any member of the Garda Siochana (if he is not in uniform on production of his identification card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.
(3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Garda Siochana station, a prison, or some other convenient place for a period of twenty-four hours from the time of his arrest and may, if an officer of the Garda Siochana not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours.
(4) A person detained under the next preceding sub-section of this section may at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Garda Siochana, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section
(5) A member of the Garda Siochana may do all or any of the following things in respect of a person detained under this section, that is to say:
(a) demand of such person his name and address;
(b) search such person or cause him to be searched;
(c) photograph such person or cause him to be photographed;
(d) take, or cause to be taken, the fingerprints of such person.
(6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Garda Siochana of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.”
The appellants’ challenge
The constitutional validity of the section was challenged on three separate grounds, and they are:
(a) That it was in breach of Article 40, s. 1 of the Constitution which provides that all citizens shall as human persons be held equal before the law. The submission under this heading was to the effect that the right of a person arrested on suspicion of having committed an offence which was not an offence under the Act of 1939 or for the time being a scheduled offence for the purposes of Part V of that Act, had as his right to be brought before a court and charged with such offence as soon as practicable, or to be released. On the other hand, it was submitted, a person who was suspected of having committed an offence under the Act of 1939 or scheduled for the purposes of that Act, could on arrest be detained in custody for twenty-four hours and, upon certification by a Chief Superintendent, for a further twenty-four hours. Such disparity, it was submitted, was an invidious discrimination in breach of Article 40, section 1 of the Constitution.
(b) It was submitted that the personal right of liberty guaranteed by the Constitution was insufficiently respected and defended by a law which permitted a person suspected of having committed an offence under the Act of 1939, or a scheduled offence, to be detained for twenty-four or forty-eight hours and that this rendered the section invalid having regard to the provisions of Article 40, ss. 3 and 4 of the Constitution.
(c) It was submitted that the right to silence or the right of protection against self-incrimination was an unenumerated personal right attracting the protection of Article 40 of the Constitution, and that the possibility, pursuant to s. 30 of the Act of 1939, for a person arrested on suspicion of the commission of an offence under the Act or scheduled within it being subjected over a period of twenty-four or forty-eight hours to interrogation by members of the Garda Siochana was an invasion of such unenumerated right, rendering the section inconsistent, for that reason, with Article 40 of the Constitution.
With regard to the submission set out at (b) above, reliance was placed on the fact that upon the hearing of the reference of the Emergency Powers Bill, 1976, to this Court pursuant to Article 26 of the Constitution, the Attorney General in supporting the constitutional validity of the Bill placed reliance on the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution, and to the provisions of that sub-section which then became applicable to the Bill.
The decision
On an appeal brought before this Court by the Director of Public Prosecutions against the acquittal of the two appellants in this appeal in a former trial in the Central Criminal Court on a charge of murder arising out of the events which form the subject matter of the charges of burglary with which this instant appeal is concerned, this Court dealt with a ruling which had been made by the learned trial judge in that case to the effect that Part V of the Act of 1939 was intended to deal only with crimes of a subversive nature, and that as no subversive element had been shown to exist in the crime imputed to the accused, their arrest and detention under s. 30 of the Act of 1939 had been illegal. That ruling on the hearing of that charge resulted in an acquittal of the present appellants by direction of the trial judge. The Supreme Court in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495 held that, where an offence is declared by order under the Act of 1939 to be a scheduled offence for the purposes of that Act, the provisions of s. 30 of the Act become applicable in relation to such offence and the police powers conferred by that section become exercisable against any personbona fide suspected of being involved in the commission of such offence, whether such suspected offence is or is not believed to have been political or subversive in its motive. In the course of his judgment, with which Hederman and McCarthy JJ. agreed, Walsh J. dealt extensively with the powers conferred by s. 30 and with the restrictions which were applicable to the exercise of those powers.
The Court is satisfied that this examination of the characteristics and powers contained in s. 30 is correct and is clearly material to the issues raised in this appeal.
Having dealt with the various powers contained in the six sub-sections of s. 30, Walsh J., at p. 507, stated as follows:
“It is to be noted that before exercising any of the powers conferred in s. 30, the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not, then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal . . .
No exercise of the powers conferred by s. 30 in relation to any person can be justified solely by the desire to interrogate that person. Sub-section 5 of s. 30 makes specific provision for interrogating persons detained under s. 30 and it is the only provision of the Offences Against the State Act, 1939, giving the right to ask particular questions conferred on members of the Garda Siochana when Part V is not in force.”
The learned judge then continued to deal with the provisions of s. 52 and the situation which arose when Part V of the Act of 1939 was in force.
The powers contained in s. 52 were not invoked at any stage in the instant case before this Court and no challenge or query to the constitutional validity of that section has been made.
Walsh J. then continued as follows at page 508:
“Apart from those particular provisions in ss. 30 and 52, the Act of 1939 does not place any obligation on any person to answer any question, and any person detained or arrested by virtue of those sections would not, subject to the possibility of committing the offence of creating a public nuisance, or of misprision, be committing any criminal offence if the account he gives of his movements or the information he gave in regard to the commission or intended commission of the criminal offence were false or misleading. (See The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336, at p. 356 of the report, a decision approved by this Court in The People (Director of Public Prosecutions) v. Kelly (No. 2) [1983] I.R. 1 at p. 23 of the report). But as the latter case pointed out, whilst ss. 30 and 52 respectively are the only sections which enable the civic guards to require particular answers from an arrested person and to that extent give rise to the only statutory rights of interrogation as such conferred by the Act, nonetheless the person arrested and detained in custody in a Garda station for the specified statutory periods, as in the cases of arrest for ‘ordinary’ offences, may be asked any other question by members of the Garda Siochana present, but he is under no obligation to answer any of them, and he should be so told. It is to be borne in mind that the Judges’ Rules apply in respect of all persons detained under s. 30 and, as described by this Court in its judgment in In re The Emergency Powers Bill, 1976 [1977] I.R. 159, at p. 173 of the report, such person retains at all times the right of communication and the right to have legal and medical assistance and the right to have access to the courts. These specified rights were not intended by the Court nor expressed to be an exhaustive list but if s. 30 were used in breach of such rights, the High Court might grant an order for release under the provisions of Article 40 of the Constitution . . .
When a person is arrested under s. 30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information. (See The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294) . . .
During his detention, in addition to the rights already set out, he must not be subject to any form of questioning which the courts would regard as unfair or oppressive either by reason of its nature, the manner in which it is conducted, its duration or the time of day, or of its persistence into the point of harassment where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned. A fortiori this applies to cases where the initial detention period of twenty-four hours is extended to forty-eight hours by virtue of the provisions of s. 30, sub-s. 3 of the Act of 1939, bearing in mind that the officer, not below the rank of Chief Superintendent, who may authorise the extension of the detention must also entertain the necessary suspicions . . .
I have dealt in some detail with the powers given by ss. 30 and 52, because it appears from the learned trial judge’s reference to s. 30 as providing the Garda Siochana with ‘patently draconian powers’ and giving them the right to ‘compulsorily interrogate a person suspected of crime’ that he felt that ss. 30 and 52 gave to members of the Garda Siochana carte-blanche both as to the manner, nature and duration of the interrogation of persons so arrested. I hope I have succeeded in showing that such is not the case, and that any mistaken beliefs to the contrary, wherever they reside, will be dissipated. The object of the powers given by s. 30 is not to permit the arrest of people simply for the purpose of subjecting them to questioning. Rather is it for the purpose of investigating the commission or suspected commission of a crime by the person already arrested and to enable that investigation to be carried on without the possibility of obstruction or other interference which might occur if the suspected person were not under arrest. Section 30 is part of the statute law of the State permanently in force and it does not permit of any departure from normal police procedure save as to the obligation to bring the arrested person before a court as soon as reasonably possible.”
Accepting as it does the validity of these statements concerning the powers conferred by s. 30 and the rights and protections of a person detained pursuant to arrest under that section, the Court has come to the following conclusions with regard to the submissions challenging the constitutional validity of the section which have been made in this case.
The Court is not satisfied that the provisions of this section are any breach of the obligation that all citizens should be held equal before the law, or that they could possibly come within the category of invidious discrimination which would make them constitutionally flawed. Every person who is suspected of the commission of an offence under the Act of 1939 or an offence scheduled for the purposes of that Act is subject in law to the same rights and obligations and to the possibility of detention for the same period or periods. Similarly, every person arrested on suspicion of the commission of a criminal offence which is not an offence against the Act of 1939 and is not scheduled for the purposes of that Act, is subject to the same powers of detention on the part of the Garda Siochana and to the same rights, though such powers of detention and rights are different from those applicable to persons arrested under section 30.
The mere fact that a law discriminates as between one group or category of persons and another does not, or itself, render it constitutionally invalid. What is necessary to establish such invalidity is the existence of invidious discrimination, and the court is satisfied that that has not been established with regard to s. 30 of the Act of 1939 in this case. This ground of challenge must, therefore, fail.
The mere fact that the provisions of the Emergency Powers Bill, 1976, on the reference of it to this Court, were defended on the basis of the provisions of Article 28 of the Constitution, does not appear to this Court to lead to any particular conclusion of a comparison between the provisions of that Bill and s. 30 of the Offences Against the State Act, 1939. The Bill of 1976 specifically referred in its title to the resolution adopted by each House of the Oireachtas on the 1st September, 1976, pursuant to Article 28, s. 3, sub-s. 3 of the Constitution. As such, it necessarily fell to be considered by this Court on such reference, having regard to the provisions of that Article of the Constitution. From that fact, the Court is not satisfied that any inference can be drawn as to the constitutional validity of a section empowering detention on suspicion of the commission of an offence for a lesser period than the seven days, namely, for twenty-four, extendable to forty-eight, hours.
Where a person has been arrested pursuant to s. 30 of the Act of 1939 he has got, in the view of this Court, the following protections.
1. If the arresting garda does not have a bona fide suspicion based on reason of one or other of the matters provided for in the section the arrest is unlawful and he may be released by an order pursuant to Article 40 of the Constitution – The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550.
2. At the time of the arrest the suspect must be informed, if he does not already know, of the offence pursuant to the Act of 1939 or scheduled for its purposes, of which he is suspected, otherwise his arrest will be unlawful – The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294.
3. The person detained has, during his detention, a right to legal assistance, and the refusal to grant it to him when reasonably requested can make his detention unlawful – In re The Emergency Powers Bill, 1976 [1977] I.R. 159, and Director of Public Prosecutions v. Healy [1990] I.L.R.M. 313.
4. The right to medical assistance – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
5. The right to access to the courts – In re The Emergency Powers Bill, 1976 [1977] I.R. 159.
6. The right to remain silent and the associated right to be told of that right – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
7. The Judges’ Rules with their provisions in regard to the giving of cautions and the abstention from cross-examination of a prisoner apply to a person in detention under s. 30 – The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495.
8. A person detained under s. 30 must not, in the words of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, “be subject to any form of questioning which the courts would regard as unfair or oppressive, either by reason of its nature, the manner in which it is conducted, its duration or the time of day or of its persistence into the point of harassment, where it is not shown that the arrested person has indicated clearly that he is willing to continue to be further questioned”.
9. If the detention of a person arrested under s. 30 is extended by a Chief Superintendent for a further period after the first period of twenty-four hours, he must entertain also the necessarybona fide suspicion of the suspect that justified his original arrest and must be satisfied that his further detention is necessary for the purposes provided for in the section – The People (Director of Public Prosecutions) v. Eccles , McPhillips and McShane (1986) 3 Frewen 36.
The Court having considered all these protections, any of which can be made effective either by, where appropriate, the release of the person detained from his detention, pursuant to an order made under Article 40 of the Constitution or can be given effect to by the exclusion of evidence obtained in violation of any of these rules applicable to detention under s. 30, is satisfied that having regard to the purposes of the section as outlined in the judgment of Walsh J. in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495, to which reference has already been made, that s. 30 has not been established as constituting a failure by the State as far as practicable by its laws to defend and vindicate the personal right of immediate liberty of the citizen.
With regard to the third submission no detailed submission of any description was put before the Court as to the reasons why the Court should conclude that a right of silence or a right to be protected against self-incrimination was an unenumerated personal right deriving protection from Article 40 of the Constitution. No decision of the High Court or of this Court was referred to by counsel on behalf of the appellants indicating the existence of such a right as a constitutional right, unenumerated or not specified.
The Court is not satisfied, having regard, in particular, to the various protections of the right of silence which have been above set out in this decision, that the terms of s. 30 and the interrogation expressly authorised by s. 30, sub-s. 5 available to a member of the Garda Siochana in relation to any person suspected of any crime and in detention, whether under s. 30 or otherwise; constitutes an invasion of or failure to protect the right of silence of a citizen. On that basis the Court is satisfied that the challenge under this heading must fail. The Court does not find it necessary, therefore, to express any view on the question as to whether or in what circumstances or subject to what qualifications, if any, a right of silence or protection against self-incrimination is an unenumerated right pursuant to the Constitution.
The Court is therefore not satisfied that for any of the reasons put forward on behalf of the appellants in this case, s. 30 of the Offences Against the State Act, 1939, is invalid having regard to the Constitution.
The following judgments were delivered in relation to the non constitutional grounds of appeal.
Finlay C.J.
In this appeal from the conviction of each of the appellants on a charge of burglary in the Central Criminal Court, on the 17th November, 1989, each of the appellants raised a challenge to the constitutional validity of s. 30 of the Offences Against the State Act, 1939, pursuant to which they were each arrested in respect of a suspicion of having committed the crime of malicious damage and were subsequently charged with the offences of murder and burglary. The decision of the Court on that challenge has just been pronounced, pursuant to Article 34 of the Constitution
It is necessary, however, for the members of the Court to determine the other issues raised in the notices of appeal filed on behalf of the appellants.
Appeal of Patrick O’Reilly
The appeal on behalf of Patrick O’Reilly was first submitted to this Court prior to the submission of the appeal on behalf of Christopher Quilligan, and I will accordingly deal with Mr. O’Reilly’s appeal first.
Ground 1
“That the learned trial judge erred in law in holding that the prosecution of the charge on the indictment was not unfair, having regard to the effluxion of time or to the changed circumstances of the appellant”.
The facts relevant to this submission are as follows. The two accused were originally put forward for trial in the Central Criminal Court on an indictment containing two counts against each of them, arising out the same set of circumstances. One was a count of murder and the other was a count of burglary, the murder being alleged to have occurred in the course of the burglary. On a trial in that court in December, 1985, the Director of Public Prosecutions without any opposition from either of the accused sought a separation of the two counts on the indictment, and put forward the accused on the charge of murder only, obtaining an adjournment of the charge of burglary. That case was determined by Barr J. in the Central Criminal Court in December, 1985, and, having ruled as a matter of law that the arrest of the accused pursuant to s. 30 of the Offences Against the State Act, 1939, was unlawful because the offence of which they were suspected, namely, an offence of malicious damage, was not a terrorist type offence, and there being no evidence against the accused sufficient to warrant a conviction other than the statements made by them while under such arrest, he directed the jury to find each of the accused not guilty of the charge of murder. Against that decision the Director of Public Prosecutions appealed to the Supreme Court, and on the 25th July, 1986, this Court decided that the learned trial judge’s ruling had been in error, and set aside the decision of the Central Criminal Court acquitting each of the accused on the charge of murder. The Court did not on that occasion make any decision or order in relation to a re-trial.
The Director of Public Prosecutions subsequently issued a motion to the Supreme Court seeking an order directing the re-trial of each of the accused on the charge of murder in the Central Criminal Court. That motion was brought in December, 1986, and was eventually disposed of by the Supreme Court by judgment delivered on the 29th July, 1988, in which the Court declined to make any order directing a re-trial of the accused on the charge of murder.
The two accused were then put forward for trial in the Central Criminal Court on the charge of burglary only and an adjournment of that trial was applied for early in the spring of 1989 and was granted, and eventually the trial came on in October, 1989, before the Central Criminal Court (Costello J. and a jury).
The only grounds on which this appellant submitted that it was unfair to reject an application made on his behalf prior to the commencement of that trial that the efflux of time made a trial unfair was that he had altered circumstances in the sense that, since the original trial in 1985, the consequent acquittal and the reversal of that by the Supreme Court he had been on bail and had got married and had a child.
He did not suggest that his capacity to defend the case was in any way prejudiced, other than the mere assertion that time made it more difficult to remember the sequence of events.
I am quite satisfied that an alteration in the circumstances of the accused and the responsibilities which he had taken on, whilst it might be quite relevant as a factor in the assessment of an appropriate sentence, could not possibly be a ground for not prosecuting him and trying him on as serious a charge as this burglary was, even after the efflux of the amount of time involved. There can be no real suggestion, nor was one made, that the Director of Public Prosecutions was at fault, causing the delay which had occurred. I would, therefore, reject this ground of appeal.
Ground 2
“That the learned trial judge erred in law in holding that the separation of the two counts of the indictment by the respondent in December, 1985, was not unfair and no bar to the respondent to proceed with the trial of the remaining count on the indictment.”
No opposition to this separation of the two counts on the indictment was made on behalf of this appellant in December, 1985. There are strong grounds of policy to be found in a number of decisions in favour of not trying with a charge of murder a count of other crimes arising out of the same transaction, even though that is not an inflexible or mandatory prohibition. No grounds have been advanced which in my view would suggest that the decision to separate the counts on that occasion was in any way unfair to the appellant. I would reject this ground of appeal.
Ground 3
“That the learned trial judge erred in law in holding that the Central Criminal Court had jurisdiction to hear and determine the remaining charge on the indictment.”
This submission was not advanced, and it was accepted on behalf of the appellant that having regard to the decisions applicable there was jurisdiction to proceed.
Ground 4
“That the learned trial judge erred in law in holding that the appellant was not entitled to plead in bar autrefois acquit.”
This ground was submitted upon the basis that even though it had subsequently been set aside and discharged by the Supreme Court order of the 25th July, 1986, the verdict of the jury in December, 1985, was a previous acquittal.
I am satisfied that there are no grounds for this submission in law. It is fundamental to the concept of a plea in bar of autrefois acquit orautrefois convict that there is a subsisting valid acquittal or conviction of the precise charge available. This appellant was never tried on the charge of burglary before the trial which was had in October, 1989, in the Central Criminal Court, and furthermore, at the time he was put forward for trial on that charge at that time, even if it had been the same offence as was tried in December, 1985, the purported acquittal which had been reached in error by the court in December, 1985, in the view of the Supreme Court, had been set aside and discharged. This ground must also fail.
Ground 5
“That the learned trial judge erred in law and in fact in holding that the alleged admissions by the appellant were admissible in evidence.”
Ground 8
“That the learned trial judge’s determination of the trial within the trial on the issue as to the admissibility of the alleged admissions was against the evidence and the weight of the evidence.”
Ground 9
“That the learned trial judge erred in law and in fact in holding that the circumstances of the interrogation given by witnesses for the respondent did not have the effect of undermining the unenumerated right against self-incrimination.”
All these three grounds were dealt with together and a review was placed before this Court on appeal of the evidence given by the interrogating Garda Siochana with regard to the interrogation of the accused. On the trial within the trial referred to in these grounds, this accused gave evidence.
The learned trial judge in making the ruling clearly accepted the truth of the evidence given by the members of the Garda Siochana who had conducted the interrogation of the accused and rejected the evidence of the accused where that was in conflict with the evidence of the Garda Siochana. In substance, the accused’s evidence was to the effect, both that he had been subjected to threats, to coercive and harassing behaviour, and to physical harassment without actual assault, and that a substantial part of the incriminatory statements purported to have been made by him were not made by him at all, but were simply dictated by the gardaÃ, written down, and that he was forced or cajoled into signing the document so produced.
In my view, the learned trial judge was entitled to make an assessment which must necessarily depend on the credibility of the witnesses concerned as to the conflict of evidence that arose with regard to the admission of these statements. Once he concluded that the account given by the investigating gardaà was one which he could accept as being true beyond a reasonable doubt, he was entitled, on the terms of the evidence given by those members of the Garda Siochana, to admit the statements into evidence, and this submission must, in my view, fail.
Ground 7
“That the learned trial judge erred in law in holding that the doctrine of res judicata and/or issue estoppel did not apply to the issue of the admissibility of the alleged admissions made by the appellant.”
What was here being contended on behalf of the appellant was that because the Central Criminal Court (Barr J.) on the hearing of the charge of murder in December, 1985, held that by reason of an invalidity in the arrest and detention of the appellant which the learned judge held as a matter of law flowed from the fact that he was not being suspected of a terrorist offence, that even though that decision, which was purely a question of law, was overruled and set aside on appeal to the Supreme Court, that it constituted an issue estoppel or res judicata between the State and the appellant in regard to the admissibility of these statements which was available to the appellant in a charge on a different count of the indictment arising out of the same set of circumstances.
I am satisfied that such a proposition is wholly unsound and must be rejected. In order for there to arise an issue estoppel in any case, and I express no considered view on the special position it may have in criminal cases, it would be essential that there should be a valid and final decision of the particular issue between the parties. Where, however, a decision reached on a particular issue has been set aside on appeal it can no longer be considered a final or valid decision and cannot be availed of in subsequent proceedings by either of the parties concerned. This ground must also fail.
The further substantial ground put forward by this appellant was that contained at No. 11 of the grounds of appeal, which is as follows:
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
Counsel on behalf of this appellant in making his submissions pursuant to this ground, in short, urged that where the only evidence implicating an accused person in the commission of a crime constituted admissions or inculpatory statements made by him whilst under what could be described as sustained interrogation in police custody, that the experience of the courts should make it a rule of practice similar to that laid down by the Supreme Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, relating to evidence of visual identification, that a judge should warn a jury that, whilst they were entitled to do it, that it should be ordinarily considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. The judgment of Kingsmill Moore J. in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, not only laid down the special position with regard to evidence of visual identification but also laid down principles which are of general application in respect of the necessity or desirability of corroboration in criminal cases. At p. 37 he stated as follows:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case, and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestability and lack of responsibility of children of tender years may find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries they should not convict unless they have weighed the evidence with the most extreme care. Similarly, the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it.”
In that judgment the learned trial judge, of course, went on in fact to extend it to the questions of visual identification.
I am satisfied that the broad principles laid out in this portion of the judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 are correct but are capable of being expanded or clarified by a consideration of the category of cases in which judicial experience had by that time at least made it desirable that warnings concerning corroboration should be given. Sir James Stephen, in The General View of the Criminal Law, at p. 249, dealing not specifically with corroboration but with the allied topic of the situation in which juries may well acquit, even though uncontradicted sworn evidence of one witness imputes guilt, stated as follows:
“The circumstances may be such that there is no check on the witness and no power to obtain any further evidence on the subject. Under these circumstances, juries may and often do acquit. They may very reasonably say we do not attach such credit to the oath of a single person of whom we know nothing, as to be willing to destroy another person on the strength of it. This case arises where the fact deposed to is a passing occurrence – such as a verbal confession or a sexual crime – leaving no trace behind it except in the memory of an eye or ear witness.”
Lord Hailsham of St. Marylebone, L.C., in the judgment in Director of Public Prosecutions v. Kilbourne [1973] A.C. 729 in the course of his judgment suggests that the judge-made rule of the desirability of warning against convicting on the evidence of a witness without corroboration in a criminal case should extend to “the evidence of any principal witness for the Crown, where the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence.”
It is of importance that what is arising in the instant case is not a case of verbal admissions only, which in the words of Sir James Stephen leave no mark other than in the ear of the witness present; there are in this case two signed statements of admission which the jury could see and observe and in which the accused did not dispute his signature. Secondly, I do not think it can be said, even as a broad category, that there could be any assumption that a member of the Garda Siochana investigating the commission of crime has, in the words of Lord Hailsham, some purpose of his own in making a false statement against an accused.
Having considered these various statements of principle concerning the necessity for giving warnings about corroboration in criminal cases when charging the jury, I conclude that the broad assertion made by the appellant in this case that the fact that the evidence against him which is, undoubtedly, uncorroborated, was statements of admission made by him after sustained interrogation whilst in police custody, made the giving of a warning to the jury, against the danger of convicting without corroborative evidence of the facts set out in those admissions, necessary, is not a sound proposition of law.
I am aware that there have been cases in which an appellate court has found inculpatory statements made by persons under sustained interrogation whilst in garda custody, where they were not corroborated by other evidence incriminating the accused, to be unsafe as a basis for conviction. I am also aware of the public unrest necessarily arising from such decisions, and indeed, the concern which, for lawyers and lay persons alike, the concept of sustained interrogation in garda custody creates.
It does not seem to me, however, that the problems thus arising are amenable, as a matter of principle, to a general requirement for judicial warning in every such case against the dangers of convicting on foot of the evidence contained in such inculpatory statements, where it is not corroborated.
The possibility of such a warning in any given or particular case as being appropriate is, of course, clearly open. In his discretion, a trial judge may well, in the exercise of his jurisdiction to consider the validity of such alleged confessions or admissions as evidence, exercise an even more fundamental protection against a wrongful conviction arising from such confessions, and often does, by excluding them from the consideration of the jury.
It seems to me, however, that the necessary flexibility of the charge of a trial judge to a jury in a criminal case, required for the attainment of justice, must permit of a wide discretion, having regard to the particular facts of each individual case. Thus, for example, it would appear to me quite appropriate that in a case where verbal admissions, only, are being relied on that a judge should specifically direct and warn a jury as to the difference in quality and, possibly, in persuasiveness of such admissions in general, as compared to written admissions signed by an accused person.
Where an accused person makes allegations, as was done in this case, of harassment and sustained oppression in the process of the interrogation, it is absolutely essential that the learned trial judge should put those matters before the jury and put them before them in a very clear and unqualified form, indicating to the jury, in accordance with the onus of proof, that if they should raise in their minds any doubt as to the truth of the admissions alleged to have been made, that the requirements of justice are that the accused should be acquitted.
As appears from the portion of this judgment which is to follow, dealing with the question of the manner in which the learned trial judge dealt in detail with the allegations concerning the voluntary and truthful nature of these statements, in his charge to the jury, I am satisfied that in this particular case, on the facts of it, the trial judge’s charge was adequate and was sufficiently protective of the accused against the risk of a wrong and/or undue conviction, notwithstanding the absence from it of any specific warning concerning the risks of convicting on the basis of statements of admission or confession which were not corroborated by outside evidence.
With regard to the judge’s charge to the jury, a further issue arose on behalf of each of the accused at the trial and formed a part, though only a minor part, as I understood it, in the submissions made on this appeal. By reason of its importance, however, it is necessary that I should deal with it.
At the trial each of the accused gave evidence concerning the circumstances surrounding the taking of statements from him at the trial within a trial as a result of which the learned trial judge ruled that the statements taken were admissible in evidence before the jury. Broadly speaking, the allegations made by each of the accused at that hearing were to the effect that they were harassed, threatened and, to an extent, assaulted and that they were induced to make statements by an inducement involving in each case the situation of their respective wives who were in custody. In each case, also, it was stated by the accused that the statements were not of their own creation but that words were written down or dictated by members of the Garda Siochana, and they were induced or cajoled or bullied into signing the document so written out.
At the trial, in the presence of the jury, these allegations were repeated and the two accused, each of whom gave evidence before the jury on his own trial, in addition to denying participation in the crime and giving an account of his movements on the evening when the crime was committed, gave again the evidence in substantially identical terms to what had been sworn to by them in the trial within a trial, in the absence of the jury.
In those circumstances, it was specifically contended on behalf of each of the accused, prior to the commencement of the judge’s charge that the learned trial judge should direct the jury that apart from reaching a conclusion with regard to whether the confessions which had been admitted in evidence were true and genuine, that they should firstly reach a conclusion as to whether they were voluntarily made and accordingly should have been admitted into evidence, and in effect, that if they concluded that they were not voluntarily made that they should not make any further inquiry as to whether they were or were not true.
This application was rejected by the learned trial judge, and I am satisfied that he was correct in so doing.
Having regard to the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, it is clear that the function of ruling on the admissibility of confessions or incriminating statements alleged to have been made by an accused is a mixed question of fact and law which falls within the function, in a trial had with a jury, of the trial judge. I am satisfied that it follows from that fact that there cannot be, as it were, any question of an appeal from or review by the jury of the decision of the trial judge to admit statements into evidence. If a judge should err, either in the principles which he applied or by acting on insufficient or non-existent evidence in reaching a conclusion that statements were admissible, then, he must be corrected on appeal by an appellate court.
Where, as has occurred in this case, the issue with regard to the admissibility of statements turns largely on allegations of threats, assault, inducement or harassment, or of what is described as the “planting” of statements, then, the function of the jury is, I am satisfied, as follows.
It must be clearly directed by the trial judge to have regard to all the evidence which is before it, including all the evidence suggesting that the statement has been obtained by any of the unlawful methods which I have mentioned above for the purpose of ascertaining whether they are satisfied beyond a reasonable doubt that the confession or incriminating statement made by the accused is true and is a sufficient proof of his guilt.
A jury is not bound by a finding of fact made by a trial judge in the course of his ruling on the admissibility of a statement such as, for example, a rejection by him of an allegation that a member of the Garda Siochana assaulted the accused whilst in his custody and thus obtained the statement from him. It must be made clear, whether by specific warning or by a positive direction to a jury that their function in having to be satisfied beyond a reasonable doubt as to the truth of a voluntary statement admitted into evidence before them necessarily involves an examination by them of allegations of any description which are relevant to the question as to whether the statement was truly voluntarily given or not. It should be made clear to them that if they have a reasonable doubt as to whether a statement was truly voluntarily given that that would form a very solid ground for also entertaining a reasonable doubt as to whether it was true.
I have very carefully considered the entire charge of the learned trial judge in this case. In considerable detail, notwithstanding the length of the case, and with complete accuracy, he put before the jury the allegations of every description made by each of the accused, going to the question as to whether these statements were voluntarily given. The terms of his charge clearly made that question relevant, and highly relevant, to the question as to whether the statements could be satisfactorily accepted by the jury beyond a reasonable doubt as being true.
Having regard to that conclusion concerning the nature of the charge, I am satisfied that this ground of appeal must also fail.
The appeal of Christopher Quilligan
The first ground of appeal submitted on behalf of this appellant was at (a) in the grounds, in the following terms:
“The said honourable Court erred in law in the exercise of its discretion to allow the trial to proceed.”
The facts concerning this ground on behalf of this appellant are as to the actual timing and delay in the trial, between December, 1985, and October, 1989, already set out in this judgment, dealing with the similar ground put forward on behalf of the appellant Patrick O’Reilly.
In the case of this appellant, however, further facts are material to this ground. They may very shortly be summarised by saying that having regard to a statement given to the Garda Siochana and forming part of the book of the evidence by a Mrs. Gwendolina Murphy who lived immediately beside this appellant, she would, on the night when the murder and burglary occurred, have placed this appellant in his own flat at Blackpool in Cork, from approximately 1.45 am until 2.00 am. This witness gave evidence that she was on bad terms with the appellant and on the particular night abused him because he was noisily arguing and fighting with his wife. If that evidence were accepted by a jury as being true, then, on the evidence given by the witnesses with regard to the happening of the attack on the house of the deceased Mr. Willis and the burglary happening therein, it could persuasively be argued that it would not have been possible, having regard to the distance between where this appellant was seen by Mrs. Murphy between a quarter to two and two o’clock on this particular night, for him to have taken part in the raid on the deceased’s house. Mrs. Murphy gave evidence on the trial in December, 1985, and was still alive, though apparently indisposed at the time when the case was adjourned at the request of the Director of Public Prosecutions, in the spring of 1989. She died shortly before the holding of the trial before Costello J. in October, 1989. The short submission is that having regard to the long delay between December, 1985, which was the first trial before Barr J. on the charge of murder and the trial which commenced in October, 1989, on the charge of burglary, before Costello J., a delay to which the appellant cannot be said in any way to have contributed, even though that delay might not be said to be the fault of the Director of Public Prosecutions, that the prejudice arising to this appellant from the intervening death of Mrs. Murphy whose evidence constituted in effect or potentially an alibi, in a case where the only evidence against the accused, of any real significance, was the evidence of admissions alleged to have been made whilst in garda custody made it unfair to permit the trial to proceed.
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, in a judgment with which the other members of the Court agreed, I stated the principles applicable to this question of excessive delay in the prosecution of a criminal trial in two separate paragraphs at page 379. They are as follows:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition . . .
I have come to the conclusion that there was in this case an excessive delay prejudicial to the prosecutor’s chance of a fair trial. The determining feature, in my view, is the non-availability of one of the witnesses who would have been a material witness for the defence. It is not disputed on the facts which were before the High Court that such a witness was available and apparently willing to give evidence at earlier stages but, with the passage of time, has become unavailable and cannot now be made available as a witness. That fact alone, having regard to the extreme length of the delay, makes this a case in which, in all the circumstances, I am satisfied the delay can be considered as being both excessive and prejudicial and that, accordingly, the prosecutor was entitled to his order of prohibition.”
In The State (O’Connell) v. Fawsitt [1986] I.R. 362, the return for trial of the prosecutor, which was on two charges of assault causing actual bodily harm, was dated the 8th July, 1982, and the incident had occurred in January, 1981. Eventually, after a number of adjournments caused by the arrears of work listed for the Circuit Criminal Court in Cork, the trial was finally fixed for the 30th April, 1985. All the intervening adjournments had been opposed on behalf of the prosecutor in that case but the gap between the order returning the prosecutor for trial and the trial eventually prohibited was under three years.
I have carefully considered the facts of this case and even accepting, as I do, that the Director of Public Prosecutions cannot be said to have been at fault contributing to this delay, I am driven to the conclusion that, having regard to the general right of an accused person to a trial with reasonable expedition, mentioned by this Court in the judgment in In re Paul Singer (No. 2) (1960) 98 I.L.T.R. 112 and referred to by me in The State (O’Connell) v. Fawsitt [1986] I.R. 362, and having regard to the prejudice that, undoubtedly, potentially exists from the non-availability of the witness Mrs. Gwendolina Murphy, that in the interests of justice this trial which commenced in October, 1989, should have been prevented upon the principles outlined in these cases. On that basis, therefore, I would allow the appeal of Christopher Quilligan and, having regard to the grounds on which I would be allowing it, there can be no question of any order for a re-trial.
Hederman J.
I agree with the conclusions of the Chief Justice and would propose to offer my views on two topics only, the matter of corroboration and the respective functions of judge and jury in regard to the admission of confession evidence.
The last substantial ground of appeal before this Court in the case of Patrick O’Reilly was ground (No. 11), that the learned trial judge erred in law in not holding that it was essential, in the interests of justice, that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.
Custodial interrogation is not per se illegal when it is not conducted in a manner which is an abuse or a violation of constitutional or legal safeguards.
Members of the garda who desire to interrogate a suspect who is in custody must bear in mind that he has the following rights:
1. He has the right to remain silent and to be informed that if he does say anything it may be used in evidence.
2. He has the right to have a legal representative of his own choice present.
3. That he cannot be detained incommunicado.
4. That he has the right to the presence of a medical practitioner of his own choice.
Any assertion of these rights must be honoured. (See In re The Emergency Powers Bill, 1976 [1977] I.R. 159 and now s. 9 of the Criminal Justice Act, 1984).
If a suspect is reluctant to answer questions he must not be offered inducements to confess including suggestions which minimise the legal or the moral seriousness of the crime under investigation.
It must not be suggested that silence is proof or evidence of guilt. The interrogation must be conducted to protect the innocent and garda officers must not act as though the suspect is guilty.
If all of these safeguards have been observed and the detained person agrees to or expresses a desire to answer questions or to make a statement then all that he says may be used in evidence provided that the prosecution establishes that the statement was voluntary and that it truly records what the detained person said. If the evidence is admitted the prosecution must still prove the truth of any such incriminating material.
The voluntariness of an admission is determined by examining and considering the totality of the circumstances including the characteristics of the detained person, the techniques and duration of the interrogation and the environment in which the interrogation takes place.
It is true that the history of criminal trials discloses that there have been convictions procured by fabricated evidence or by innocently mistaken evidence or by evidence procured in circumstances which, if known at the time of the trial, would have rendered it inadmissible. The danger of honest mistake is well illustrated in the decision of this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33. But insofar as the danger of fabricated evidence is concerned it appears to me that a rule requiring corroboration of the making of admissions would serve no useful purpose as those most likely to give corroborative evidence would be persons themselves guilty of crime. While it may be said that members of the garda, by reason of their profession, have a special interest in bringing law-breakers to book, it would not on that account be reasonable, in effect, to equate them with accomplices in a crime.
I am satisfied that if all of the conditions I have earlier referred to are observed, particularly the presence of a legal representative, if asked for, this would be a greater safeguard than a requirement of corroboration. If a confession is the sole evidence of the accused’s guilt and if it has been established that the confession was made in circumstances which follow the criteria that I have already referred to, I do not see why it should be necessary to require corroboration of that which the accused, as a suspect, has asserted to be true, even if he subsequently denies the truth of it. During the trial it may indeed be established that the statement is untrue, but that is a different issue. I draw a distinction between the necessity for corroboration of the evidence of a single witness who is not the accused and the admissions of the accused himself. The former topic does not fall for decision in this case. In the latter case it is the accused’s own account which raises the issue and frequently the accused may be the only person who has any evidence to offer as to the perpetration of the crime. I cannot accept the proposition that where an accused has truthfully admitted guilt in the course of the investigation that such admission is insufficient without corroboration.
So far as admissibility is concerned, it must be borne in mind that this raises a mixed question of fact and law. The law, which is the sole preserve of the trial judge, falls to be determined by him in the light of the facts in each particular case.
As this question was so recently reconsidered by this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, I would not depart from that decision. In the result it is my opinion that the factual determination in this case in relation to the admissibility was properly undertaken by the trial judge. However, it must be borne in mind that this determination was only for the specific question of the admissibility of evidence. It did not have the effect of removing from the jury the right to determine the truth of the disputed facts and in consequence to give such weight as they thought proper to the evidence admitted by the trial judge. If the matter is pursued by the defence, after the ruling of the trial judge, it is his duty to instruct the jury on the legal effect and consequences of their not being satisfied as to the truth of the prosecution’s evidence in support of the claim that the admissions relied upon were obtained in circumstances which did not raise doubts as to their truth or as to the fairness of the circumstances of the interrogation.
For these reasons I am satisfied that the learned trial judge did not err in law in not instructing the jury that it would be dangerous to convict the appellant on the uncorroborated evidence of the admissions made by him while in garda custody.
McCarthy J.
I have read the judgment of the Chief Justice. I adopt the statement of facts contained in it and I respectfully agree with his conclusions on grounds (1), (2), (3), (4), (5), (7), (8), and (9).
Ground Number (11)
“That the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission made by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939.”
In argument this ground was limited to the contention that following the rule of practice laid down by this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, a judge should warn a jury that whilst they are entitled to do so it should ordinarily be considered unsafe to convict on the uncorroborated evidence of the existence of such admissions. In that case, Kingsmill Moore J., delivering the judgment of the Court, said at p. 37:
“It is the function of a judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted, and the nature of such directions and warnings must depend on the facts of the particular case. But, apart from the directions and warnings suggested by the facts of an individual case, judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions. Thus the general directions which must be given in every case as to the onus of proof and the necessity of establishing guilt beyond reasonable doubt have arisen from experience of the fallibility of human testimony in general, whether due to mendacity, imperfect observation, auto-suggestion or other causes. The suggestibility and lack of responsibility of children of tender age find recognition in the statutory provision that their unsworn evidence shall not be sufficient to convict of an offence, unless corroborated by other material evidence implicating the accused, and even when such evidence is received under oath it is customary for judges to tell juries that they should not convict unless they have weighed the evidence with the most extreme care. Similarly the opportunities for giving false evidence afforded to an accomplice and to a person who alleges that a sexual offence has been committed against him or her, coupled with the extreme temptation to give false evidence frequently present in such cases, have given rise to the rule that a judge must warn the jury that it is always dangerous to convict on the evidence of such persons unless it is corroborated in some material particular implicating the accused.
The category of circumstances and special types of case which call for special directions and warnings from the trial judge cannot be considered as closed. Increased judicial experience, and indeed further psychological research, may extend it. It is submitted by Mr. Sorahan, counsel for the prisoner, that the time has come for such an extension, that accumulated experience has demonstrated the necessity for warning a jury as to the mistakes which can be made, and which have been made, in the identification by witnesses of persons accused and, in particular, that a jury should be told that an identification parade, though the best available method of confirming identification, is very far from infallible.
Mr. Sorahan referred to cases such as the Beck Case and the Slater Case , which have passed into legal history as classical examples of erroneous identification and to two recent cases in our jurisdiction where persons had been convicted on what appeared to be entirely satisfactory identification but where subsequent investigation proved the identification to have been wrong. Judicial experience, including that of some members of this Court, could provide further instances where positive and honest identification was shown to be mistaken.”
Towards the end of the judgment at pp. 39 and 40, Kingsmill Moore J., said:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.
This direction is not meant to be a stereotyped formula. It may be too condensed to be fully appreciated by a jury without some further explanation and the facts of an individual case may require it to be couched in stronger or more ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused or had only an indifferent opportunity for observation. It does, however, contain a minimum warning which should be given in any case which depends on visual identification. No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be covered by the words ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
Instances of a statutory requirement of corroboration may be found in s. 3, sub-s. 2 of the Illegitimate Children (Affiliation Orders) Act, 1930; s. 105 of the Road Traffic Act, 1963; s. 30 of the Children Act, 1908, as amended by s. 28, sub-s. 2 of the Criminal Justice Administration Act, 1914; s. 13 of the Perjury Act, 1911; s. 48 of the Offences Against the Person Act, 1861; ss. 1, 2 and 6 of the Criminal Law (Amendment) Act, 1935, these latter now subject to s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990.
Rules of practice as to the danger of coming to a conclusion on uncorroborated evidence have been established in a variety of cases. In the criminal law, such a warning must be given in respect of the evidence of an accomplice ( Attorney General v. Levison [1932] I.R. 158), the justification being that an accomplice will tend to minimise his own role in the crime and exaggerate that of the accused; in sexual offences generally because, it is said, the charge is easy to make and difficult to refute or can be the result of hysterical or vindictive motives; the sworn evidence of children because they are more susceptible to the influence of third persons and may allow their imaginations to run away with them; in claims against the estates of deceased persons, because of the absence through death of one of the parties to the transaction; in matrimonial causes because, it is said, “experience has shown the risk of a miscarriage of justice in acting on the uncorroborated testimony of a spouse in this class of case” (Simon P. in Ali v. Ali [1965] 3 All E.R. 480).
The list is not closed. In 1977 an official inquiry (The Ó Briain Committee) was set up to consider what additional safeguards might be necessary for the protection against ill-treatment of persons in Garda custody, having regard to allegations made in relation to persons held in such custody pursuant to s. 30 of the Offences Against the State Act, 1939, or s. 2 of the Emergency Powers Act, 1976, and for the protection of members of the Garda Siochana against unjustified allegations of such ill-treatment. The Committee (Prl. 158, 1978) did make recommendations and many of these have been incorporated into the Criminal Justice Act, 1984. It would be closing one’s eyes and ears as a member of the public not to recognise recurring public disquiet in respect of convictions in Ireland and in the United Kingdom based upon uncorroborated evidence of admissions allegedly made while in police custody, when no warning as to the danger of acting on such evidence has been given to a jury, if appropriate, or to the court itself, if there is no jury. No argument has been advanced that a conviction may not be obtained on such evidence if it is uncorroborated; the argument is merely that there should be a warning to the jury or to those acting in place of the jury.
Some of the justification for the requirement or desirability of corroboration derives from the nature of the offence as in sexual cases (now qualified by the Act of 1990); from the age of the witness, as in children’s cases; from the motive of the witness as in accomplice cases; from, inter alia, the risk of a miscarriage of justice as in matrimonial cases. They are all cases related to the quality of the witness as such. That is not the immediate question here where we are dealing with the use of confessions, whether written or oral. It is the confession itself that is the evidence; this is particularly concrete in the case of a written confession. The evidence of those called to prove the voluntary nature of the confession is ancillary to the critical evidence. The trial judge decides on the issue of admissibility of that confession; in doing so he must come to a conclusion of fact on whether or not there was any inducement or threat or oppressive conduct such as to make it other than voluntary. An instance of a conclusion by the Court of Criminal Appeal that it was not satisfied that statements made by an accused were voluntary may be found in The People (Director of Public Prosecutions) v. Breathnach (1981) 2 Frewen 43; such a conclusion may reflect upon those who testify as to the voluntary nature of the confession; so does any conclusion that rejects the evidence of a witness. The problem is the greater because of the established practice, so ruled by the trial judge, that it is for the trial judge and him alone to rule upon the issue as to whether or not the confession was made voluntarily; it is for the jury to determine whether or not that voluntary confession may be accepted as true in whole or in part. Both inquiries, that by judge and that by jury, tend to cover the same ground and the trial judge in the instant case was at pains to deal extensively with all of the allegations of impropriety made against the gardaÃ. As I will advert later in this judgment, the issue of whether or not the confession was made voluntarily, a mixed issue of fact and law, by its determination by the trial judge alone, removes from the jury a determination of one of the issues of fact relevant to the guilt or innocence of the accused. This consideration seems to me to be highly relevant to the issue concerning corroboration. One must address the question as to how the trial judge should charge the jury on this aspect. In The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, Kingsmill Moore J. identified the minimum warning which should be given to a jury in a case which depends on visual identification, this founded upon the fact of there being a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous. The “corroboration in a material particular implicating the accused” was to be found in the due regard to all the other evidence. But, in the case of contested admissions, what is the appropriate direction to the jury? There is no difficulty as to the direction as to corroboration itself – this may be found in a variety of other evidence, including, as in this case, the fact that a significant detail in the admission was borne out by subsequent discovery at the instance of the person in detention. Corroboration does not depend upon the evidence of other gardaÃ, one should look elsewhere. But, if the jury must be told why corroboration is required, what is the formula for so doing? The judicial inquiry into the voluntary nature of the admission must be presumed to have been adequately carried out but it is an inquiry to resolve an evidential problem, not the question of guilt. In my view, it is entirely appropriate that a trial judge should inform a jury that he has held such an inquiry and was satisfied, for the purpose of admitting the same in evidence, that the prosecution had established that the admission was made voluntarily. That, however, does not in any sense preclude the jury, when evaluating the admission, from looking for support or corroborative evidence in a material particular from outside the admission itself. A person making a statement may, for a variety of reasons, not least that being a wish to please the questioner, admit to doing something he did not do or, in some cases, he could not have done. The jury then may, properly, be cautioned of the danger of convicting where no such corroboration is to be found and conviction would entirely depend upon the admission.
Having regard to the added precautions that have been created by the Act of 1984, it may be said that matters of this kind are for the legislature only. I do not agree. We are here dealing with a critical part of the constitutional frame, the right to a fair trial, ordinarily before a jury. Statutory provisions as to corroboration have been made in cases involving children and otherwise. Yet this Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 introduced this specific requirement in regard to the charge to the jury in cases involving visual identification. Of course, the legislature may introduce this or even greater requirements in respect of corroboration; but it may not. The executive, of which the Gardaà form part, may not decide that such a precaution is necessary and, therefore, will not move the legislature to that end. In my view, this Court should, following the example of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, declare it to be an essential part of the procedure for a fair trial in criminal cases where a conviction must depend upon the validity of evidence contained in admissions, written or otherwise, that the jury be warned of the danger of convicting on such evidence if there is no corroboration for it. If one needs to identify a motive then the very wish to secure a conviction, particularly when he is convinced of the guilt of the person in custody, itself constitutes a purpose of his own on the part of the investigating garda.
In the course of his charge to the jury, the learned trial judge said:
“There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty. The law does not require any corroboration of confession evidence. Now, I am sure you will have seen discussions in the newspapers, television programmes, perhaps, on whether this is a good law or a bad law, whether there should be a law which provides for corroboration of confessions, but you are not concerned whether the law is a good law or not, neither am I. This court has to apply the law, and the law is that if you come to the conclusion that the confessions, in either or both of these cases, were true confessions, then you must find the accused guilty, even if there was no corroboration.”
This is a correct statement of what was understood to be the law. As I have sought to indicate, in my view it cannot without qualification be accepted as the law now. The law, as yet, does not require corroboration but, in my judgment, it does require that a jury be warned that it is dangerous to convict on admissions made while in police custody, voluntary or otherwise, unless the admissions are corroborated in a material way. It follows that a conviction based upon a direction in law as I have cited cannot stand. It was not suggested in argument that if the direction were wrong, the Court should apply s. 5, sub-s. 1 (a) of the Courts of Justice Act, 1928.
The question of the statement being voluntary
In accordance with the decision of this Court in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the learned trial judge held a trial within the trial to determine the mixed question of fact and law as to whether or not the statement made by this appellant was voluntary. Having concluded that it was voluntary, he admitted the evidence as to the making of the statement. In the course of his charge to the jury he made a number of references to this statement:
“(a) Now, no difficulty will arise in this case in regard to that definition [the offence of burglary] because if you accept that the statements of the accused, the confessions of the accused, are true, then they are guilty of burglary – and that brings me to what I will come back to later, namely, that the issue in the case, the important, vital issue in the case, is whether the confessions and admissions of guilt are true. If you come to the view that they are true, then the person who made that confession or admission is guilty of burglary and you find the answer ‘guilty’.
(b) You have heard an explanation given by each of the accused as to how they made what they say was a false confession. If having heard that explanation you think it might be true but that you are not certain, then the accused is entitled to the benefit of the doubt.
(c) There is another legal point to which some reference has been made and which I should touch on briefly. It does happen that accused persons make a full confession and are tried, and the jury decides that the confession is a genuine one and a true one given voluntarily, and that is sufficient evidence to find the accused guilty.
(d) Like a lot of long cases, at the end of it the issue that has to be determined becomes very clear – now, that doesn’t mean that it’s easy, but it becomes very clear. And the issue which you have to determine is whether or not the confessions and admissions of guilt or each of these accused were true. If they made a true confession then they are guilty; if the confessions were false then they are not guilty, and you have to decide then whether or nor these accused made false confessions or true confessions, bearing in mind the words I told you about the onus of proof being on the prosecution to establish beyond a reasonable doubt that the confessions were true.
(e) There is no evidence against Mr. O’Reilly other than his own admissions and confession. And if you decide beyond any reasonable doubt that his confessions are true then you must find him ‘guilty’.
(f) Ladies and Gentlemen, the next various complete piece of evidence is how the statement was taken, because he says he didn’t dictate it at all; he says it was presented to him and he just signed it, something that had been made up. You have to decide where the truth lies in that bearing in mind the onus of proof that is on the prosecution. Then, ladies and gentlemen, you come to the next day, the 13th December. Now, the prosection don’t rely solely on the statement that he made on the night of the 12th, because they say this is a guilty man who on the next day drove us out and showed the gardaà the route they had taken, and they say that must be a guilty person because he was in fact impliedly admitting that he had been on the journey on the night of the crime and was helping the guards in showing them where they had gone. You have heard his explanation for this and he explained how he was prepared to do anything to get out of the Garda station. He was shocked when he heard that he was going to stay for another 24 hours, and he went out for the purpose of getting out of the station and he was prepared to go along with what was a charade as far as he was concerned, pretending that this was the journey that they took on the night of the crime. Similarly, when he came back the situation was that he was given a statement which, again, he decided, he was prepared to sign anything and he signed the statement, which indicated that what he had said on the journey was accurate and true and he signed admitting that he had said it. Now, ladies and gentlemen, we know that he was brought down and we know that he saw the co-accused in the afternoon after dinner time and we know that he then saw his wife. And he said this absolutely broke him, seeing his wife and he says that when he was interviewed by MacGillicuddy and Murphy that they put it to him ‘it’s your buddies or your wife’, and they were putting it to him ‘if you make a statement implicating Quilligan, then your wife will get out.’ That is denied by the gardaà and you have to consider where the truth lies. His case is that his will was so overborne by what had happened to him that he would sign anything and that he was prepared to sign anything to get his wife out. The Garda evidence isn’t so, that he gave his signed confession because he was guilty, because he knew he was guilty, because he felt that there was no point in going on in denying his guilt on the night of the 12th, and that on the 13th he was accepting the fact that he had confessed to the crime and was going along with the situation that had then resulted. That, ladies and gentlemen, is the case against Mr. O’Reilly, or rather the highlights of the case, as I see it, and the conflicts which you have to resolve. It is your duty, ladies and gentlemen, if on the consideration of all the evidence you have no reasonable doubt but that the confession which Mr. O’Reilly made was a true confession, it is your duty to find him guilty. It is your duty upon having considered all the evidence in the case against Mr. Quilligan if you have no reasonable doubt but that his confession was true, to find him guilty. If however, ladies and gentlemen, you have a reasonable doubt that the confession isn’t true, the accused Mr. O’Reilly, is entitled to the benefit of that doubt and then you find him not guilty.”
At the conclusion of the charge, counsel for Mr. O’Reilly supported the application made by counsel for Mr. Quilligan which was as follows:
“The second matter of law that I would ask your Lordship to deal with and which your Lordship hasn’t dealt with at all in my respectful submission is the onus of proof that rests upon the prosecution in relation to a statement. And in my respectful submission your Lordship ought to tell the jury what the legal position is and what the State must establish, where they seek to rely upon a statement, namely, my Lord, that it is freely and voluntarily given and that it has not been obtained my Lord by trick or threat, ill-treatment, inducement or as a result of the mind or will of the accused having been overborne.”
To this the Judge replied:
“I disagree, Mr. White. I think that was my job. I did that on thevoir dire. It is then a matter for the jury to decide whether the statement was true.”
Having regard to this earlier ruling, counsel for Mr. O’Reilly quite properly did not do more than formally support the earlier submission. These submissions reflected a submission made earlier that apart from reaching a conclusion with regard to the truth or genuine nature of the confession, the jury should firstly reach a conclusion as to whether it was voluntarily made.
In The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, the Chief Justice said at pp. 473 and 474:
“For the reasons which I have sought to outline in this judgment, I have come to the conclusion that the interests of justice in criminal trials with a jury would be best and most likely served by a return to the procedure of the voir dire and to the principle that issues of both fact and law necessary to determine the admissibility of any evidence should be tried by a judge in the absence of the jury. As I have already indicated, this in no way inhibits the trial of the same issues of fact in the presence of and before the jury, their relevance being not towards the legal admissibility of the evidence being contested, but rather towards its weight or credibility.”
Henchy J., at p. 488, said:
“But it is also for the judge, when at the end of the case he addresses the jury, to direct their attention to the circumstances of the questioned statement and to tell them that it is for them to decide, having regard to all the evidence, what probative value, if any, they should give to the statement.”
Griffin J., at p. 490, said:
“If the statement survived that test, it was admissible in evidence and was put before the jury as part of the evidence for the prosecution, the truth of the statement being a crucial question for the jury. It was then the right of counsel for the defence to cross-examine again, in the presence of the jury, the witnesses who had given evidence in their absence, in the hope of persuading the jury that the statement had been improperly obtained and was therefore unreliable. It was the function of the jury (after proper direction in that behalf by the trial judge) to give to the statement such weight and value as in all the circumstances of the particular case they thought it deserved.”
Hederman J. agreed with the judgment of the Chief Justice. Walsh J. dissented on the substantive issue as to the method of holding the trial within a trial, commonly called the voir dire. At p. 480 he said:
“The constitutional function of the jury is to decide questions of fact. In the type of criminal case in which the success of the whole prosecution depends upon the admissibility of a statement by an accused person (cases of which seem to have become more frequent in recent years) it would seem incongruous if the most vital facts of the case, namely those which will govern the admissibility of the evidence without which the prosecution must fail, should be taken away from the jury. Admittedly until The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, it was always the practice for the trial judge alone to decide these matters but the whole question of evidence obtained by unconstitutional methods only surfaced with The People (Attorney General) v. O’Brien [1965] I.R. 142. The law as expounded in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to adapt to the new situation, as indeed the law did when the Judges’ Rules were formulated and various other rules of evidence dealing with corroboration etc. The whole purpose of judge made rules is to adapt the law to changing conditions. The purpose of the rule enunciated in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was to ensure that the essential facts in a case are to be decided by the tribunal whose exclusive function it is to decide facts, namely, the jury. In the case of a court of a single judge or several judges which act without a jury, both functions, namely, the finding of fact and the legal ruling based upon the resolution of the issue of facts, must be made by the said tribunal, which thus makes for a much more difficult situation than when the task is divided between the judge and the jury.”
In Chan Wie Keung v. R. [1967] 2 A.C. 160, a case cited in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Lord Hodson reviewed a number of decisions including the observation of Byrne J., giving the judgment of the Court of Criminal Appeal in England in R. v. Bass [1953] 1 Q.B. 680, who said “when a statement has been admitted by the judge, he should direct the jury to apply to their consideration of it the principle as stated by Lord Sumner, and he should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it.” This was criticised by the High Court of Australia in Basto v. R. (1954) 91 C.L.R. 628, where it was stated that the only question for the jury to consider with reference to the evidence so admitted is its probative value or effect, stating, “A confessional statement may be voluntary and yet to act upon it might be quite unsafe; it may have no probative value. Or such a statement may be involuntary and yet carry with it the greatest assurance of its reliability or truth.” In Chan Wie Keung v. R. [1967] 2 A.C. 160, in the trial in Hong Kong, the judge had given a general direction to the jury that they must be satisfied beyond reasonable doubt of the guilt of the appellant and that, if they had any doubt about the confessions, they must acquit, and that it was for them to give such weight and value to the confessions as they thought proper. The judge did not add a further direction that the jury must be satisfied as to whether the confessions were made voluntarily, and if not so satisfied they should give no weight at all to them and disregard them. But for a technical difficulty the majority of the Court of Appeal would have allowed the appeal on the ground that it was necessary for the judge to have given the further direction leaving the issue of the voluntariness of the statement to the jury notwithstanding that the judge had given his ruling as to its admissibility. It was held that the judge did not follow the course of giving a specific direction that the jury must be satisfied beyond reasonable doubt as to the voluntariness of the confessions before giving them any consideration.
This decision was followed in R. v. Ovenell [1969] 1 Q.B. 17 and R. v. Burgess [1968] 2 Q.B. 112, both decisions of the Court of Appeal in England.
Article 38, s. 5 of the Constitution states that:
“Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”
Trial includes the resolution of all issues of fact. As Henchy J. said in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384″in which the jury, constituted in a manner calculated to ensure the achievement of the proper exercise of their functions, would, under the governance of the judge, be the arbiters of all disputed issues of fact and, in particular, the issue of guilt or innocence.” In the same case, Finlay P., as he then was, put the question “If the legislature were to purport to enact a statute relating to particular charges not coming within the exceptions I have already outlined (envisaged in Article 38, s. 5 itself) providing that a portion only of the facts necessary to determine the questions of guilt or innocence should be determined by the judge, would such legislation be consistent with Article 38, s. 5?” The question was not answered in The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384, and any reliance upon The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 was weakened by The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460. The question of the admissibility of a confession may depend, in part, on the resolution of an issue of fact – were there threats, was there an inducement etc.What follows from the resolution of these issues is a question of law. I am unable to reconcile the constitutional guarantee of trial by jury with an exclusive right in the trial judge to determine the issue as to whether or not a confession was voluntarily made. In The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64, as referred to in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, Walsh J. said at p. 86 of the report:
“A similar situation arises with regard to the voluntary character of a statement. It is for the trial judge, in the first instance, to decide upon the admissibility; but he cannot decide upon the truth of the statement. A judge in such a case must direct the jury that they must be satisfied that the statement is true, or true in material respects, before they can accept it as evidence to be acted upon. In many cases consideration of this matter may involve the jury in considering and arriving at a conclusion on the circumstances under which the statement was made or obtained.”
Clearly, a statement may be involuntary, being obtained by threats, but true; (historically, it was only statements obtained under torture that were accepted as true;) statements made voluntarily may be untrue; involuntary statements may be untrue and voluntary statements may be true. There is no norm. In my view, to exclude the jury from a consideration of whether or not a statement was voluntarily made is to deny the accused the constitutional right to trial by jury. That right is not ensured by limiting the jury’s function to a determination of whether or not the statement is true even while directing the jury that the determination of truth or otherwise may depend upon their view as to the various allegations of impropriety against, as in this case, the gardaÃ. Apart from the reference at citation (c) in the charge of Costello J., there is no indication given to the jury that they are concerned with whether or not the confession was given voluntarily; in context, I believe the expression”given voluntarily” there was in no sense an invitation to the jury to enter into that inquiry. From my experience at the Bar, I am aware of a number of instances in which, the judge having ruled in favour of admission of the statement as having been voluntarily made, the issue was further left to the jury for their consideration at the end of the case.
For these reasons, I am satisfied that this appeal should be allowed and the conviction set aside. I would order a new trial.
Appeal of Christopher Quilligan
Following the conclusions that I have reached in respect of the appeal of Patrick O’Reilly it follows that this conviction must also be set aside. The question remains as to whether or not there should be an order for a new trial. In this case there were circumstances which did not arise in the other. They are summarised in the judgment of the Chief Justice and concern the evidence of the late Gwendolina Murphy. Mrs. Murphy gave evidence at the first trial in December, 1985, and was cross-examined; that evidence was recorded. After the conclusion of the appeal to this Court and the hearing of the subsequent motion, the case itself, according to the court record, was mentioned in the Central Criminal Court on the 10th March, the 12th May, the 21st July, and the 15th December, 1988, and on the 17th April, 1st May, and 27th June, 1989, when the trial on this indictment commenced before MacKenzie J. The objection detailed by the Chief Justice was then taken on behalf of both Patrick O’Reilly and Christopher Quilligan and rejected by the trial judge. On the second day of the trial, due to the absence of an important witness, the trial was adjourned and the jury discharged. The motion brought by the Director had been filed in December, 1986, and was heard in this Court on the 21st July, 1987, but judgment was not delivered until the 29th July, 1988. That motion was, of course, in respect of the murder charge, no order for re-trial having been made on that charge; the remaining charge, that of burglary, came before the court in December, 1988, and on the dates in 1989 when, earlier, it was adjourned by consent and then on the 28th June, 1989, adjourned as I have indicated. As stated, the argument advanced before Costello J. at the trial under review and in this Court was also made save that before MacKenzie J. it related only to the evidence of Mrs. Quilligan senior and not to that of Mrs. Murphy.
No application was made to the trial judge to admit in evidence the transcript of what Mrs. Murphy had said at the trial before Barr J. in December, 1985. If such application had been made and the relevant authorities cited, it may well be that the learned trial judge would have admitted such evidence. Support for such a course is to be found in O’Connor, Justice of the Peace Volume 1, at p. 418, Stephen Evidence 5th ed. at p. 47 and in R. v. Hall [1973] 1 Q.B. 496, where a number of judicial precedents were cited. I recognise that there may be a disadvantage in not having the jury see and hear the witness but that is a feature that attends every case where a witness dies or is for some other reason unavailable. In many such cases there is no remedy because what may be called a s. 22 procedure had not been adopted and there had been no first trial. It might, on the one hand, not be the most satisfactory evidence; on the other, a written record of Mrs. Murphy’s evidence. might well have carried more weight than the evidence of the witness herself.
That does not determine the issue. The real question is whether or not, because of a mishap such as this, a trial is not to proceed. There has been a very significant delay between the trial in December, 1985, in respect of an offence allegedly committed in November, 1984, and the hearing before Costello J. in November, 1989. It was not of the Director’s making no more than it was of the accused’s making. It happened. Part of it was due to delay in this Court. In my view, none of these circumstances are truly germane to the issue. In The State (O’Connell) v. Fawsitt [1986] I.R. 362, there had been excessive delay; some of the intervening adjournments had been opposed; the accused had prejudiced his job opportunities by returning from England in order to face a trial that did not take place; a witness formerly available was no longer available and there was no record of his evidence. This latter fact was the determining feature in the case. The situation in the instant case is, essentially, no different from what would arise if after quite a short delay before a trial an important witness had died. Section 22 of the Criminal Justice Act, 1984, makes some provision to deal with that instance if it is feared it will arise. No such fear existed here; it was a foreseeable but not to be expected development; it was a pure misfortune. As the accused is entitled to a fair trial, so also is the State. In my judgment, the circumstances are not such as to warrant declining to order the new trial that should, in my view, otherwise be held. In the circumstances, I would allow the appeal, discharge the conviction, and order a new retrial.
O’Flaherty J.
I agree with the Chief Justice in his recitation of the facts of these cases; the course that the trial has taken to date; his conclusions of law and the orders that he proposes.
I wish to add my observations on two aspects only, viz.
(1) Should a jury be given a special warning by a trial judge in regard to the need to look for corroboration in the case of a confession obtained while in police custody or while a person is subject to police interrogation?
(2) What is the role of the jury where the trial judge has admitted a statement as voluntary but where there are allegations by the defence of inducements or threats or the like?
As regards corroboration
Counsel for the appellants submit that the reasoning which informed the Court’s judgment in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 should be invoked so as to require that a trial judge should warn a jury of the dangers of acting on confession evidence which is not corroborated though, it is accepted, the jury should be entitled to convict without corroboration if they are convinced of the guilt of the accused.
The first thing to be said about this submission is that The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 emphatically does not lay down that a jury should be asked to look for corroboration in the case of an allegation of mistaken identity and that a warning should be given to a jury in regard to reaching a verdict of guilty in its absence.
Kingsmill Moore J., speaking for the Court, set out, in general terms, the warning that should be given where the verdict depends substantially on the correctness of an identification. He said at p. 39 of the report:
“We consider juries in cases where the correctness of an identification is challenged should be directed on the following lines, namely, that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly that they should be specially cautious before accepting such evidence of identification as correct; but that if after careful examination of such evidence in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification they are at liberty to act upon it.”
Having pointed out that the direction was not meant to be a stereotyped formula Kingsmill Moore J. went on to say that it did contain a minimum warning which should be given in any case which depends on visual identification. He continued at p. 40 of the report:
“No specific reference is made to ‘corroboration in a material particular implicating the accused’. An item of evidence falling within this formula may, according to its nature, have very little or very great probative value. This consideration is meant to be
covered by the words, ‘in the light of all the circumstances, and with due regard to all the other evidence in the case’, and it is for the judge to deal with the lesser or greater probative value of any item of corroborative evidence.”
It will be clear that far from the jury having to be warned to look for corroboration it is the judge who is to deal with this and put it into the reckoning when he gauges the extent of the warning that he should give the jury.
As far as the criminal law is concerned the only cases where a judge was required as a rule of practice – as opposed to a statutory requirement – to warn a jury of the dangers of acting on uncorroborated evidence were – (i) in the case of the sworn evidence of young children; (ii) in the case of accomplices: Attorney General V. Linehan [1929] I.R. 19 and (iii) in the case of sexual offences.
The warning requirement in the case of young children was based on the likelihood that they might be susceptible to the influence of others or might be ruled by their imaginations. (See now s. 28 of the Criminal Evidence Act, 1992, which was enacted since the argument in this case concluded). A warning in the case of an accomplice was required because he was by definition a discredited witness and one who, very often, had something to gain by offering to give evidence for the prosecution. The rationale for the warning that had been required in the case of sexual offences was not settled and different justifications were put forward for it. Some theories, the historical background of which are explored to some extent in the judgment of Sullivan C.J. in The People (Attorney General) v. Williams [1940] I.R. 195, at pp. 200-201, came to be regarded as offensive to women, such as that women were moved to make complaints by pique or jealousy or because they were ruled by their imaginations. In any event, the law is now governed by s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990, which lays down that it is no longer necessary for the judge to give a warning to a jury in the case of sexual offences where the evidence of the complainant is uncorroborated but he is entitled, in his discretion, to give such a warning and he does not have to use any particular form of words in doing so.
In the result, therefore, it will be clear that the only extant example of a warning requirement based on judicial practice is in the case of discredited witnesses. We are asked, in effect, to assign police testimony in the case of confession evidence to the same category as that of an accomplice. That is the legal landscape in which this plant is to take root. I am satisfied that such a judicial development is not justified.
If there is an attack on confession evidence in the course of a trial I would prefer to leave to the good sense of the trial judge in each individual case to weigh the extent of the warning that he thinks should be given to the jury about acting on the evidence if the matter is uncorroborated. He will of necessity have told the jury about the presumption of innocence and the burden of proof that rests on the prosecution in criminal trials. I think if we attempt to express how the warning should be given in some formula at this stage it would probably give rise to serious problems in its implementation. The administration of justice would not be helped. If we introduce this warning requirement what rationale are we to give it? The only one that springs to mind is that police evidence is to be equated as intrinsically unreliable in the same way as that of accomplices.
Like other members of the Court, I do not shut my mind to the fact that there have been expressions of public unease about certain cases where confessions were obtained. The Oireachtas, too, has become alive to the rights of the suspect in this regard and to the need to afford him proper protections and, thus, it is pertinent to have regard to the protections set out in the Criminal Justice Act, 1984, in regard to persons in custody. I think we are, at this stage of our development, fairly and squarely in an area of policy which should properly be left to the Oireachtas. The question of having electronic recording of police interviews is provided for in s. 27 of the Act of 1984. Regulations have not yet been brought in to implement the provisions of the section. It is not for me to reason why this has not been done but the introduction of audio or audio/visual recordings is as likely to be of benefit to the gardaà as it is to the accused. It would, I am convinced, be a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.
The trial judge’s function in the “trial within a trial” is to decide whether the statement has been made voluntarily, i.e. without force or threat of force or inducement. The truth of the confession is not directly relevant at that stage. Once the confession is admitted then the question for the jury to consider is whether it is true. Voluntariness is but a test of admissibility. It is not a test of the truth of the statement.
No doubt, the accused is entitled to traverse again all the ground that was traversed before the trial judge. He may bring the jury to the conclusion, accordingly, that the confession statement was fabricated or was not true or as the case may be. In a sense, the trial judge’s function is but a preliminary step enabling the jury to enter on what is their function which is to weigh the evidence.
In my judgment nothing should be done to take away from the regime which was so definitively established in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460.
Egan J.
I agree with the judgment which has been delivered by McCarthy J.
Richards v O’Donohoe and DPP
[2016] IESC 74
JUDGMENT of Ms. Justice Iseult O’Malley delivered the 15th day of December, 2016.
Introduction
1. These proceedings raise issues relating to the jurisdiction of a judge to alter his or her mind after making an order. The origin of the dispute lies in the decision of the first named respondent to allow the first named appellant’s appeal against a District Court conviction and sentence, in circumstances where the prosecuting garda officer was not present when the case was called. The first named appellant then left the court. The second named appellant was his bailsperson, and it is accepted that the effect of the order from his point of view was to discharge him from his responsibilities. The garda arrived later in the day and the respondent then acceded to an application to “reinstate” the matter. This was done without the knowledge of the appellants, who subsequently succeeded in obtaining an order of certiorari in respect of the “reinstatement” order. However, the High Court judge who granted the order (Birmingham J.) directed the remittal of the matter to the Dublin Circuit Court. The appeal is against that order only. In summary, the issue is whether remittal for the purpose of considering an application to reinstate the matter is permissible, having regard to the fact of the unchallenged order of acquittal. The answer to that question turns largely on whether or not the judge could in the circumstances lawfully vacate the order allowing the appeal. If it could have been done at that time, the further question arises as to whether this Court should now order remittal having regard to the intervening lapse of time.
Background facts
2. The first named appellant (hereafter “Mr. Richards”) is alleged to have committed two offences, involving an assault on one garda and obstruction of another. The prosecuting officer was Sergeant Maureen Burke. The matter was dealt with summarily and Mr. Richards pleaded guilty before the District Court on the 15th June, 2012. On the 9th October, 2012, a sentence of 9 months imprisonment was imposed. The District Judge fixed recognisances in the event of an appeal at Mr. Richards’ own bond of €100 and an independent surety of €500. The second named appellant was subsequently approved as surety. Recognisances were entered into and Mr. Richards was admitted to bail pending the determination of the appeal.
3. The appeal was listed for 10:00 a.m. on the 20th November, 2012, in the Dublin Circuit Criminal Court. It appears from the legal diary for that date that there were fifty appeals listed at 10:00a.m., twenty seven listed at 11:00 a.m. and ten listed at 12:00 p.m.. This appeal was no. 12 in the 10:00 a.m. list. Counsel was instructed to appear on behalf of Mr. Richards. Ms. Collins, solicitor, appeared on behalf of the prosecution in respect of all matters in the list. According to Ms. Collins, cases in the 10.00 a.m. list are normally for mention only and it is common for them to be adjourned to allow instructions to be taken from the appellant. The appellants’ solicitor says that they can, and often do, proceed to hearing unless there is an application for an adjournment, which may not necessarily be granted. However, he does not suggest that a contested hearing would normally proceed at first calling of that list. Nor does he say whether this particular case was ready to proceed at that stage, either as an appeal against sentence or on a fully contested basis. (There is no doubt that Mr. Richards had a legal entitlement to appeal against conviction despite the plea of guilty in the District Court – see Attorney General (Lambe) v. Fitzgerald [1973] 1 I.R. 195).
4. According to Ms. Collins, a number of prosecuting gardaí were not present when their cases were called in the 10:00 a.m. list, and in each case where that occurred the first named respondent (hereafter “the judge”) made an order allowing the appeal. She avers that in the first few cases she attempted unsuccessfully to argue that the matter should be allowed to stand in the list. When Mr. Richards’ case was called there was no member of An Garda Síochána present to prosecute it. Ms. Collins says that she did not ask for second calling, or object to an order allowing the appeal, because the judge had already held against her in the earlier cases. In the circumstances the judge allowed the appeal thereby dismissing the charges. Mr. Richards then left the court.
5. Ms. Collins does not say whether or not the judge inquired as to whether or not the case was otherwise ready to proceed, or, indeed, whether it was to proceed as an appeal against conviction and sentence or sentence only. She gives no indication as to why he would not let stand or adjourn any of the matters in the list.
6. Later in the morning the prosecuting officer, Sergeant Burke, arrived in court. She has averred that she had been misinformed about the listing and had understood the case to be in the 11:00 a.m. list. She therefore came to court at about 10:30 a.m.. She does not say whether she was expecting the matter to proceed, or whether her witnesses were available if required. She spoke briefly with Ms. Collins, who, obviously, was engaged with the other matters in the list.
7. During the lunch break Ms. Collins received instructions from the Director of Public Prosecutions (hereafter “the Director”) to apply to have the case re-entered. In the afternoon, at about 2.40 p.m., Ms. Collins informed the Court that the sergeant had appeared in court at approximately 10:30 a.m., that she had been misinformed of the time the case was listed and that counsel for Mr. Richards was still in court dealing with another matter. She applied for the “reinstatement” of the appeal, and referred to a High Court judgment, the name of which she was at that time unaware, in which a refusal to cancel a bench warrant had been quashed where the issue of the warrant and the application for cancellation had been made in the same sitting of the court.
8. Counsel who had acted for Mr. Richards was present, although it is clear that this was only by chance. She obviously had no specific instructions to deal with this situation, but objected to the application and submitted that the appeal had been finalised that morning, with the charges being dismissed, and that Mr. Richards had left court on that basis.
9. The judge inquired as to the nature of the offence that was the subject of the appeal and Ms. Collins informed the Court that it was an assault against a member of An Garda Síochána where a sentence of nine months imprisonment had been imposed. According to Ms. Collins, the judge then acceded to her application, vacated his earlier order and adjourned the matter to the 18th December, 2012. Again, it is not clear why he did this.
10. Sergeant Burke avers that on the 19th November she hand-delivered a letter to the home of Mr. Richards to inform him of the reinstatement order. This date is clearly wrong, given that the events in question took place on the 20th. She has not exhibited a copy of the letter and there is no way of establishing from the evidence before the Court when it was written or delivered.
11. On the 29th November, 2012, the solicitor for the Director wrote to the solicitor for Mr. Richards advising that the appeal had been reinstated and had been adjourned to the 18th December, 2012. On 6th December, 2012, the appellants’ solicitors replied, indicating that at the time the order was made reinstating the appeal neither they nor counsel had any instructions and that they were considering the lawfulness of the order.
12. Leave to seek judicial review was granted on the 10th December, 2012. For the purpose of the application, the appellants’ solicitor, Mr. Quinn, swore an affidavit which inter alia exhibited a District Court order. This document, dated the 3rd December, 2012, recites simply that the order made on the day was to adjourn the hearing of the appeal to the 18th December, 2012. However, in a supplemental affidavit sworn in October 2013, Mr. Quinn has without comment exhibited “a true copy” of the order made on the day in question. This sets out the order in the following terms:
“Allow appeal and assign legal aid to John Quinn Solicitor
There being an application by the State before the Court on the same day after the Prosecuting Sergeant arrived late to Court, the Court ordered as follows,
Reinstate appeal and adjourn to the 18th of December 2012 at 10am for mention.”
13. According to counsel, the appellants’ solicitor had bespoken the order for the purpose of moving the judicial review application. Since the original version did not correctly set out what was believed to have happened, the second one was bespoken after the grant of leave.
14. The judicial review proceedings were fully contested by the Director.
The High Court judgment and order
15. By judgment delivered on the 8th November, 2013, Birmingham J. in the High Court granted an order by way of certiorari quashing the order of the judge reinstating the appeal. He considered that the line of authority pursuant to which a judge may change his or her mind while a matter is still “in the breast of the court” remained part of Irish law, and that therefore the judge did have jurisdiction to vacate the first order made in this case. He had not become functus officio and the authority of The State (Dunne) v. Martin [1982] I.R. 229, relied upon by the appellants, was not relevant.
16. Birmingham J. expressed the view that the volume of cases dealt with by the District Court and, on appeal, the Circuit Court necessitated the capacity to rectify a situation where something had gone wrong. Commenting on the facts of the case, he said that having regard to the plea of guilty previously entered in the District Court, the entitlement of Mr. Richards was to have his appeal considered on its merits. He was not entitled to have the appeal allowed in full simply because the prosecuting garda was late by reason of a mistake. However, fair procedures required that where consideration was being given to vacating an earlier order the beneficiary of that order should have had an opportunity to argue against variation, and the second order should therefore be quashed.
17. After judgment was delivered an application was made on behalf of the Director, pursuant to O. 84 r. 26(4) of the Rules of the Superior Courts, to have the criminal proceedings remitted to the Circuit Court. This application was the subject of a separate hearing. On the 3rd December, 2013, the learned trial judge delivered an ex tempore judgment in which he decided to remit the matter.
18. Birmingham J. considered that the appellants had been entitled to have the order of reinstatement quashed, because it was made in their absence without notice to them. However, having already held that that a judge is entitled to change his or her mind, he did not accept the argument that there had been no jurisdiction to reinstate in this case. He also rejected the submissions of the appellants to the effect that it would be unfair to remit having regard to the lapse of time before judgment in the judicial review proceedings. In his view it was of greater significance that the application to reinstate had been made within a matter of hours of the original order. Citing Grennan v. Kirby [1994] 2 I.L.R.M. 199 he stated that “justice for the community” required that the prosecution should have an opportunity to argue in favour of reinstating the appeal and having it determined on the merits.
Submissions
19. The appellants submit that the judge had jurisdiction to allow the appeal in the circumstances; that the Director did not object, her representative having made no submissions or applications at the time; that the Director has never subsequently challenged the lawfulness of that decision; and that it therefore stands as a final disposal of the proceedings before the Circuit Court. The purported revival of the proceedings was quashed by the High Court. The matter is no longer “in the breast of the court” and the Circuit Court is now functus officio in relation to the charges.
20. The reliance by the Director on the “breast of the court” line of authority is challenged, on the basis of an argument that this concept has no application where there has been an acquittal and the accused has departed from court a free man. The jurisdiction to change one’s mind is said to be restricted to procedural matters such as bail, or orders striking out charges. It is conceded that a sentence might be reconsidered on the same day for the purpose of amelioration, but not in order to increase it.
21. In the alternative, counsel submits that if there is in principle a jurisdiction to remit the matter for the purpose of reconsidering the prosecution’s application, the Court should nonetheless decline to do so. It is pointed out that it is now more than four years after the event whereas, if the Director had consented to the quashing of the impugned order instead of contesting the judicial review proceedings, the matter could have been back in the Circuit Court in the same sittings.
22. On behalf of the Director it is argued that the matter must be remitted to the point before which the impropriety occurred. The submission is that the prosecution must be allowed to make its application and have it determined properly. Counsel says that the reinstatement order cannot be severed from the order allowing the appeal, and since the former has been quashed there is presently an “incomplete” order in the Circuit Court. By reference to the judgments in Whelan v. Kirby [2005] 2 IR 30 and Grennan v. Kirby it is submitted that the discretion to remit arises in the case because the impugned decision has been held to have been made entirely without jurisdiction, and the facts of the case lean in favour of remittal.
Discussion of the authorities
Jurisdiction to allow the appeal
23. The range of orders available to a Circuit Court judge dealing with a District Court appeal is not as broad as that set out in the District Court Rules dealing with the options open to the District Court. Since it is an appeal, where the appellant has already been convicted, there is no equivalent to an order striking out the charges or dismissing charges without prejudice to the right of the prosecution to pursue them again. The judge may confirm, vary or reverse the order of the District Court. Apart from a decision on the merits, the Circuit Court judge may dismiss an appeal if the appellant fails to appear. Similarly, a judge may allow an appeal if the prosecution does not appear. The Director has not contended that the judge did not have jurisdiction to allow the appeal in this case, on the basis that the prosecution was not in a position to proceed when the case was called. This position appears to be correct, having regard to the decision of this Court in Cleary v. The Director of Public Prosecutions [2013] 2 I.R. 48. The judgment of the majority in that case approved the ruling by MacMenamin J. in The Director of Public Prosecutions v. Ní Chondúin [2008] 3 IR 498 to the effect that the jurisdiction of a District Judge could include a power to dismiss a charge, without a formal adjudication on the merits, where the prosecution could not proceed.
Jurisdiction to alter or vacate an order
24. It is necessary to start with the passage relied upon from O’Connor’s, The Irish Justice of the Peace (Vol. 1, 2nd ed., 1915). At p. 202 it is stated that the justices may, before separating, pronounce a judgment different from that already pronounced by them;
“…for so long as there is a continuity of sitting the order is ‘in the breast of the court’ (per Holt, C.J., in St. Andrews, Holborn v. St Clement Dane’s (1705) 2 Salk. 606…)…But if the court, by reason of being influenced by considerations which are not proper to be taken into account, changes its sentence, the order will be set aside…”
25. In the St. Andrews case, an appeal against the order of the justices had been allowed when the respondents failed to appear. The respondents then appeared and paid a sum of money into court for the appellants’ costs, whereupon the court discharged its original order, heard the appeal on the merits and dismissed it. On an application to quash this order it was argued that the court was bound by its first decision. Holt C.J. said that
“During the sessions, the order was in the breast of the Court; and though drawn up, yet it was so far in the breast and power of the Court, that by the second order it ceased to be a record. The Court at the Old Bailey have altered and set aside their judgments ten times the same sessions; where judgment de pain fort & dure has been given, the Court have after let him in to plead, and after upon his trial he has been convicted, and has had another judgment against him to be hanged. So it is of judgments here; which during the same term are in the breast of the Judges.”
26. The report goes on to say that the Court observed that the effect of setting aside an order was that it ceased to be an order.
27. The emphasis on the continuity of the sessions appears to derive from the principle that the sessions were, in law, to be considered as a single day. A note of each order was made in the calendar of cases and was signed by the judge at the end of the sittings. In Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983), it is stated, by reference to R. v. Wilkes 4 Bro. P.C. 360, that this meant that a sentence ran from the first day of the sittings unless otherwise stated.
28. In R. (Horan) v. Galway Justices (1903) 3 N.I.J.R. 111, half of the magistrates hearing the case changed their minds as to sentence while the presiding magistrate was still writing up the order. Because the court was then equally divided, the case was adjourned to the next day, when the composition of the court was different. The prosecution argued unsuccessfully that the case had already been decided and could not be reheard. On an application for an order of mandamus, Palles L.C.B. rejected the proposition put forward on behalf of the prosecutor that a second order would have been required before the first could be treated as invalid, saying that the justices had been entitled to withdraw their assent to the original decision. It was then as if there never had been any order.
29. In a Scottish case from 1911, M’Rory v. Findlay (1911) 48 S.L.R. 804, a magistrate imposed a fine of five pounds, with sixty days in default. His clerk then advised him that under the relevant statute he could not impose sixty days in default of a fine in that amount. He returned to court and increased the fine. The conviction was quashed by the High Court, on the basis that the magistrate had to be taken to have imposed what he considered to be the appropriate fine in the first instance. He was not entitled to increase that amount in order to increase the default period of imprisonment, which was a “totally illegitimate proceeding”. It would have been different if the first order had been a mere slip of the tongue.
30. A more recent authority is The State (Dunne) v. Martin [1982] I.R. 229. In that case the respondent Circuit Court judge, having heard an appeal from a custodial sentence, had indicated that he might not confirm it if compensation was paid by a particular date. On the nominated date the defendant and his solicitor failed to appear and an order was made dismissing the appeal. The defendant was arrested on foot of the committal warrants some 12 days later and was lodged in prison. Three days after that his solicitor made a successful application to have the appeal relisted for the following day. On that day the money was not in court when the case was called and the judge refused to wait while the defendant’s wife brought it in. Instead the District Court orders were again affirmed.
31. The Supreme Court held unanimously that the judge had had no jurisdiction after he had “validly and finally” disposed of the matter on the date when the defendant had failed to appear. He was functus officio thereafter, and the defendant was serving the affirmed sentences.
32. In Kennelly v. Cronin [2002] 4 IR 292 a District Judge struck out charges against a person accused of murder on the basis that it was thought that the Book of Evidence was not ready for service. The accused was rearrested later that same day and charged on foot of a new charge sheet. He was brought back to court, where his solicitor asked for the original charge sheet to be reinstated. The reason for this was to avoid the need for a remand in custody and a fresh application for bail in the High Court, the District Court having no power to grant bail on a charge of murder. The judge acceded to the request and the accused was readmitted to bail on the same terms as previously, including the same two sureties. This was done without knowledge of those individuals.
33. The accused was subsequently held to have breached the terms of his bail and an application was made for estreatment and forfeiture. In a consultative case stated to the Supreme Court the issues were whether the reinstatement of the original charge sheet had the effect of binding the accused and his sureties to the terms of the original bail.
34. In holding that the accused was bound, the Supreme Court stressed the fact the situation had been brought about by an application made on his behalf and in his interest. In those circumstances he could not be heard to contest the lawfulness of the procedure adopted. However, the Court held unanimously that it was not open to the District Court to re-impose responsibility on the sureties without their agreement and without notice to them.
35. Essentially, therefore, the case concerns the effect of a breach of fair procedures. However, there is some discussion in the judgments of the question whether the District Judge had been entitled, as a matter of law, to reinstate a charge that had been struck out.
36. Referring to the passage from O’Connor set out above and to State (Kiernan) v. de Burca [1963] I.R. 348, McGuinness J. said that while she accepted that orders might well be altered by a judge during the course of a day, either on application or of the judge’s own motion, she did not accept that this principle was truly analogous to what had happened in the case in question. This was because there was a clear gap in time between the strike-out order and the re-entry order. That gap was significant because the accused had left court a free man, whose recognisance had been discharged.
“In my opinion, an alteration or later change of mind by the judge, even on the same day, could not retrospectively undo these facts. The re-entry of the charge was a fresh step by the court which brought about a new situation.”
37. Geoghegan J. referred to the argument as to jurisdiction but considered it unnecessary to deal with it in any detail. At p. 306 of the report he said:
“All sorts of contingencies happen in a District Court every day of the week. There are many circumstances in which District Court Judges reinstate struck out proceedings, rightly or wrongly. The District Court is a court of record and until an order made on a particular day has become the final record of that court, it cannot in all circumstances be assumed that a spoken order is the final disposal of the proceedings and, thereby in a case such as this, rendering a recognisance a spent force. Perhaps I should more accurately say that this may not necessarily be the effect in all cases of a ‘strike out’ followed by a reinstatement. I see no reason to regard the ‘in the breast of the court’ jurisprudence, referred to in the judgment of McGuinness J. and more fully elaborated upon at pp. 202 and 203 of O’Connor’s ‘The Irish Justice of the Peace’ Vol.1 (2nd ed.) as outdated or no longer applicable. I am reinforced in that view by the reliance on it by Davitt P. in The State (Kiernan) v. de Burca [1963] I.R. 348 at p. 357.”
38. The observations of Davitt P. in State (Kiernan) v. de Burca were as follows at p. 357:
“When a justice has pronounced his decision in a case in open Court he is not necessarily precluded from changing his mind and pronouncing a different one for, so long as there is a continuity of sitting, the order is ‘in the breast of the Court’: per Holt J. In St. Andrew’s Holborn v. St. Clement Danes… He must, however, pronounce his altered decision also in open Court…”
39. Later, at p. 307, Geoghegan J. described the argument as to whether the District Judge’s order had been one of “vacation” or “re-entry” as irrelevant.
“If a judge sets aside a charge and, therefore, in accordance with the judgment of Barr J. in Carpenter v. Kirby [1990] I.L.R.M. 764, effectively strikes out the complaint also, that is a historical fact and it cannot cease to be a fact no matter what subsequent order is made. Therefore, if, for instance the first respondent was entitled to go free following on that order, that freedom cannot be retrospectively negatived by a subsequent order, whether one calls it a vacating order or a reinstatement order or a re-entry order or anything else.”
40. In a short judgment Fennelly J. agreed that the central point was that the bailspersons had been entitled to be heard before they could be bound anew. He went on:
“I would simply add that I believe that, in the ordinary way, an order of a District Court Judge can indeed be recalled and altered in the course of the sittings in the circumstances mentioned in the applicant’s submissions. That was not the problem here. It clearly could have been done…”
Discussion
41. It is impossible to avoid the feeling that the situation giving rise to these proceedings was one that could have been easily avoided. I do not know why the judge made the order allowing the appeal without waiting for second call. It may be that he felt that members of the gardaí were treating the court with disrespect by turning up late. However, each case should be treated on its own merits. There are many innocent reasons why gardaí, defendants or practitioners might be late in arriving to court or indeed might simply get the date wrong. In my view it is necessary to display a degree of flexibility when dealing with problems that can arise in busy lists. Strictly speaking, the judge had jurisdiction to do what he did, but it does not appear to be a particularly practical approach. The circumstances are not the same as in The Director of Public Prosecutions v. Ní Chondúin, where the cases in question had been listed on a peremptory basis after previous adjournments were granted to facilitate the prosecution. Had this case involved a victim with no prior experience of the courts it is likely that he or she would find the outcome difficult to understand. I would be reluctant to interfere with the jurisdiction of judges to run their own lists by appearing to lay down a general rule, but I can see no reason why the matter should not, at least, have been let stand to second call.
42. Having acted as he did at first call, I am not clear why the judge decided to reinstate the matter. The arrival, albeit late, of the prosecuting officer was something that was more likely than not. The information about the nature of the case was presumably available from Ms. Collins’s file without the necessity for the presence of the garda, but she did not offer it and the first named respondent did not seek it at first call. It is not, therefore, clear what made him change his mind. The exercise of a judicial discretion in making a decision of this nature requires an explanation, however brief, so that parties have a proper appreciation of the circumstances.
43. The so-called “breast of the court” line of authority is broad enough to encompass cases where a judge wishes to alter an order after hearing both parties on the merits. Apart from some brief comments below in relation to that possibility, this judgment deals primarily with a situation where what appeared to be a final order was made without any hearing on the merits, because of the inability of one party to proceed at the time the case was called. Such a situation may arise because of the absence of the party’s witness, as in this case, or for some other reason. I consider that there must be, for at least some reasonable period of time, a jurisdiction to vacate an order made in those circumstances where sufficient reason is offered promptly to the court. I agree with Birmingham J. and with the observations of Geoghegan J. in Kennelly v. Cronin that the sheer volume of cases dealt with in the District Court and, on appeal, the Circuit Court, requires the availability of a relatively informal mechanism for the correction of mistakes and misunderstandings. The problem is to define the parameters of the jurisdiction, having regard to current court listing systems, the necessity to observe fair procedures, the necessity to act rationally and the requirement to give reasons.
44. The jurisdiction to change one’s mind has traditionally been described as existing while the matter is still “in the breast of the court”, and this has been equated with the sitting of the court. It seems to me that these are concepts that need to be treated with caution in the modern era. Firstly, it is no longer the case that the sessions of courts of local and limited jurisdiction in particular venues are, as a matter of law, to be considered as lasting one day. Indeed it would be productive of much inconvenience and confusion if they were. Further, if a judge’s power to change his or her mind could continue for the entire length of a session it would mean that the time available for parties to seek an alteration would vary from venue to venue in the State. Some sessions may last an entire legal term, others may be only a matter of days. Similarly, an unfair distinction would arise between parties whose cases were dealt with early in the session and those listed towards the end.
45. It is tempting to suggest that the concept of a “sitting” should therefore be restricted for this purpose to the day on which the order in question is made. However, that would inevitably give rise to problems in relation to putting the other party on notice of the application for alteration. In the instant case, for example, the Director’s solicitor applied on the same day but some four hours after Mr. Richards had left court. By that time he could literally have been anywhere in the country. The matter is even more complicated in a case, such as this, where terms of the accused’s bail required an independent surety who, in accordance with the decision in Kennelly v. Cronin, would also be entitled to notification.
46. In so far as Geoghegan J. appears to have suggested that the matter could be regarded as being “in the breast of the court” until the final order is drawn up, it must be pointed out that in the District Court orders are not generally drawn up unless “required”. This was the express position under s. 14 of the Courts Act 1971, and while subsequent amendments have omitted the reference to an order being “required” there is no general rule that orders are to be drawn up in every case. In the event of an acquittal, the order may never be required to be formally drawn up.
47. Can one then fall back on a general stipulation that an application to vacate an order should be made within a “reasonable” time? The problem in this context is that the concept of a reasonable time may clash with other legally applicable principles. One question that arises is whether the original order has taken effect, such that the judge is rendered functus officio. Thus, in The State (Dunne) v. Martin the appellant had been received into prison and had commenced serving his sentence when the judge purported to relist the matter. As a matter of law, a sentencing judge has no power to release a person who is serving a sentence. However, it seems to me that if a sentenced person was still in the precincts of the court, in custody but awaiting transport to prison, it might be possible for the judge to change his or her mind on realising that a mistake might have occurred in the sentencing process.
48. What is the equivalent stage where the first order is in favour of the accused? None of the older authorities relate to such a situation, although M’Rory v. Findlay would be authority for the proposition that a slip of the tongue could be corrected even if the correction was to the detriment of the accused. Otherwise, the issue appears only to have arisen where the alteration favours the defence, as in all of the examples given by Holt C.J. It further seems to be clear that in Kennelly v. Cronin Geoghegan and McGuinness JJ. considered that the appellant could not be heard to argue that he was not bound by the order made on reinstatement only because it had been done at his request. Had it been otherwise, in circumstances where he had left court a free man, it would appear that the court would have taken the view that the order striking the matter out could not have been reversed. On this view, the judge would become functus officio when the accused person departed.
49. The remarks to this effect in Kennelly appear to me to have been obiter, albeit firmly expressed. I have to say that I do not find it particularly helpful to look at the issue in terms of whether or not the accused has “left court a free man”, since the issue of principle can hardly be determined by the speed of an accused in exiting the building. Further, I think that considerations of equality, fairness and the interests of justice require that a mechanism for the correction of mistakes or innocent failure to appear be available to the prosecution as well as the defence, on comparable terms. However, I think that it is necessary in either case that the application be made promptly.
50. I do not wish to attempt an exhaustive set of rules for every eventuality that may arise, but I think that the following should serve as useful principles. Firstly, it is highly undesirable that a judge should, without good reason, make a final order at first call if there is any likelihood of the absent party, lawyer or witness as the case may be, appearing at a later stage.
51. A judge may decide, for good reason, to make a final order without hearing the matter on the merits, in circumstances where (as here) one party is unable to proceed but both are represented and have an opportunity to make submissions on the proposed order. That should normally be the end of it unless the party that was unable to proceed indicates grounds of objection to the order at the time, and makes it clear that an application for re-entry may follow later that day or within such time as the judge may allow. It is highly undesirable, and should be seen to militate against an application to reinstate, to permit a situation where a party leaves court under the impression that the matter has been concluded, without objection, in his or her favour, with no indication that the other party may subsequently seek to alter that situation.
52. If it is the accused that is absent, and there is some indication that there may be an innocent explanation, the judge has options to ensure his or her attendance. That might be considered undesirable by some judges, as tending to clog up the list, but there is also the option of putting a brief stay on the execution of a committal warrant to enable an application to be made for vacation of the order, where justified. Again, the matter of timing can be provided for by the judge when an appeal is dismissed because of the failure of the appellant to appear.
53. Where one party is neither present nor represented, and a final order is made, an application on notice for re-entry may be brought, provided that this is done as promptly as possible after learning of the order, and for good and sufficient reason.
54. This case is not concerned with the situation where, having heard evidence and submissions on a substantive matter and made an order, a judge simply changes his or her mind during the course of the day. In such cases, the jurisdiction to alter a decision during the sitting of the court must be regarded as circumscribed by the requirements of fair procedures and rationality. There may well also be separate considerations applicable to a case where there has been an acquittal after a hearing on the merits. However, those issues do not require to be determined in these proceedings.
55. I now turn to the question whether, having regard to all of the foregoing, this matter should be remitted to the Circuit Court. The Director argues that there is at present an “incomplete” or “inchoate” order, which refers to the application made by the prosecution and which cannot be finalised until the Circuit Court holds a proper hearing of that application. The contention is that the order allowing the appeal was prevented from crystallising by the willingness of the judge to entertain the prosecution’s application. I do not consider this analysis to be correct. There was undoubtedly a complete order, final in nature, allowing the appeal. The appellants are correct in saying that the purported revival of the proceedings was quashed by the High Court, leaving that earlier order in being. The Director says that the matter should be returned to “the point where the impropriety occurred”. I do not accept that analysis if it means that the only impropriety was the making of the second order in the circumstances. The impropriety commenced, in my view, with the making by the Director of an application for precisely the order that was made, without notice to the appellants. In my view the only proper application that could have been made ex parte at that stage would have been for a date for hearing of a substantive application to re-enter.
56. The Director submits that the order of the Circuit Court in this case should not be regarded as severable. This argument appears to reason backwards from the effect of a finding of severability – it is said that if this court considers the order as drawn up to be severable, the result will be to render irreversible that which the Circuit Court judge intended to be reversible. Quite apart from the fact that there is no evidence as to what the judge was thinking when he made the first order, I do not see that any issue relating to severability truly arises. The situation in this case is not comparable with the process of conviction and sentence, which requires two valid elements to be combined in one final order. There was no such essential linkage between the order acquitting the appellant (a final order, made within jurisdiction) and the legally invalid attempt to set it aside. The fact that the two decisions made by the judge on the day in question were written up in one document does not alter that situation.
57. In my view, it follows that there was no requirement to ask the High Court for an order of remittal and, indeed, no “matter” to remit. The order of certiorari left the parties in the same position that they had been in after the order allowing the appeal was made in the Circuit Court on the 20th November, 2012, when it would have been open to the Director either to make an application on notice in that Court or, if that was not possible on the day, to seek the leave of the court to give notice for another day. By the conclusion of the judicial review proceedings it may have been considered preferable to have the authority of the High Court to return to the Circuit Court, but the fact is that the making of an order remitting “the matter” to the Circuit Court necessarily implied that there was a live matter that was, or should have been, before that court. In reality, the only “matter” that was before it was an application in improper form. It remains open to the Director to bring an application on notice before the Circuit Court judge, even at this point, although the lapse of time in the intervening years would not favour such an application. I would therefore refuse to make an order of remittal.
58. Apart from this consideration, I am of the view that the power to remit, where exercisable, should not be exercised where the party seeking to reverse the original order had, despite being legally represented, made absolutely no effort of even a formal nature to object to its making. While one has some sympathy for a solicitor who was clearly having a difficult morning not of her own making, it is not adequate for an advocate to say that she made no submissions because previous rulings had gone against her. A defence solicitor who is, for example, representing four separate defendants in a list could not be heard to say that he made no representations on behalf of the fourth because he had been unsuccessful in relation to the other three. Each case has to be treated on its own merits. I consider that the solicitor should have at least formally requested to have the matter left in the list or adjourned, should have objected to the making of the order allowing the appeal and should have indicated in the presence of the appellant that an application to vacate the order would be made should it turn out that there were grounds for so doing. I also consider that the judge should have indicated (if such was the case) that he would be open to such an application, either later that day or on notice within a stipulated time. The unfairness in this case is not limited to the making of an order in the absence of the appellant, but in my view includes the fact that he was given grounds to believe that the case was over. The result may not have been one that he was entitled to expect, but a court should not give a party the impression that he has been successful if in fact all that is happening is that a point is being made by the court to the other party.
59. While the Director was of course entitled to contest the judicial review proceedings, there can be no doubt but that the failure to acknowledge at an early stage the flawed nature of the procedure adopted by her, which was clearly at odds with Kennelly v. Cronin, has entailed the passing of a considerable amount of time. I do not, in making this observation, lose sight of the fact that the original case concerned a plea of guilty to an offence that was considered sufficiently serious to carry a custodial sanction. However, it has to be borne in mind that this was a summary matter dealt with in the District Court over four years ago. It could have been disposed of in November, 2012 or shortly thereafter if the Director had put the appellant on notice of the application to vacate.
60. Perhaps more to the point, it could possibly have been disposed of on the day it was listed if the judge had put it to second call. The purpose of that practice, which is availed of every day in courts across the country, is to allow for the inevitable human difficulties that afflict persons attending court as much as anyone else, and to avoid the creation of situations like this one.
61. I would therefore allow the appeal.
Director of Public Prosecutions v Kenneth Littlejohn
1978 No. 25
Court of Criminal Appeal
19 July 1978
[1978] I.L.R.M. 147
HENCHY J
delivered the Judgment of the Court on 19 July 1978 saying: This is an application by Kenneth Littlejohn for a certificate under s.29, Courts of Justice Act 1924, under which this Court is empowered to issue a certificate that a point of law of exceptional public importance has arisen in the appeal and that it is desirable in the public interest that a further appeal should be taken to the Supreme Court. Such a certificate may issue from this Court.
Now it is to be noted that for the purpose of granting such a certificate the onus is on the appellant to show two points. Firstly, that there is a point of law of exceptional public importance and secondly, that it is desirable in the public interest that an appeal be carried from this Court (the Court of Criminal Appeal) to the Supreme Court. In support of his application for such a certificate, Mr Littlejohn relies on four grounds.
Firstly, he says that in the course of the extradition proceedings in England, whereby he was extradited from England to this country, the then Attorney General swore an affidavit in which he gave certain undertakings, and it is Mr Littlejohn’s contention that Mr Condon, the then Attorney General, in that affidavit expressly or implidly warranted, and assured the English Court, that he, Kenneth Littlejohn, would not be tried in the Special Criminal Court. Mr Littlejohn deduces that from certain matters in the affidavit. Firstly, in that in paragraph 1 Mr Condon referred to the fact that all charges and offences prosecuted in any court constituted under Article 34 of the Constitution other than a court of summary jurisdiction, shall be prosecuted in the name of the People at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose. Mr Littlejohn then refers to s.39 of the Extradition Act 1965, which refers to the Rule of Specialty in International Law whereby it is provided that a person extradited under the Act shall not be charged other than for an offence under the words ‘the description of the offence’, as these words are used in the Act. Now the arguments run thus, that when a prson is extradited, the country to which he is extradited is bound to try him for an offence of the same description as the offence for which he is extradited, and that in this case when he, Mr Littlejohn, was extradited to this country, the Attorney General by converting this case into one which was triable in the Special Criminal Court, thereby bringing it into the category of a scheduled or non-scheduled offence under the Offences Against the State Act 1939, converted it into something other than the offence described in Mr Condon’s affidavit.
Firstly, as to the reference to the Constitution, the only reference to the Constitution in Mr Condon’s affidavit is to the Article in the Constitution which describes the functions of the Attorney General. The application of the Rule of Specialty to this case applies no more than to this extent, that it would not be competent for this country or for the Attorney General of this State to put Mr Littlejohn, as an extradited man, on trial for any offence other than the offence or one of the offences which were described in Mr Condon’s affidavit, Now one of these offences was a charge of robbery and the robbery was described as ‘while armed with offensive weapons together with other persons, that he stole certain cash etc’. In other words this offence was precisely the one that he was charged with subsequently in the Special Criminal Court, i.e. being armed with offensive weapons, to wit firearms, robbed Noel P. Curran of £67,000 his property. The opinion of this Court is that the Rule of Specialty was precisely observed in this case. The fact that the accused was tried in the Special Criminal Court does not change in any way, not in a single particular, the offence as described in the Attorney General’s affidavit.
The Special Criminal Court is a court established under the Constitution by Statute. The position might be different if Mr Littlejohn had been tried in a Court other than a lawfully constituted court under the Constitution. But that is not so. He was tried in a lawfully established court and for an offence which was exactly in line with the offence described for the purpose of his extradition. The opinion of this Court therefore is, that the first ground fails. Before passing from that ground I should point out that in regard to this, as also to the other grounds relied on, it would not be sufficient for Mr Littlejohn to show that this point is a point of law. He would have to go further and show that it is a point of law of exceptional public importance. Furthermore, he would have to show that not alone is it important to him but that it is of exceptional public importance, so exceptional that it would be desirable in the public interest that a further appeal should be brought to the Supreme Court.
The second point is that once he had raised, or his counsel had raised, a plea in the Special Criminal Court as to the jurisdiction of the court, the court should have entertained that plea and not disposed of it in the way in which it did. The plea he refers to is the plea that the Rule of Specialty had been breached, in other words that he should not have been put on trial in the Special Criminal Court at all, that he was triable only in the Dublin Circuit Court or on transfer in the Central Criminal Court. As I pointed out earlier, this Court is of opinion that that is an unsound proposition in law. Accordingly this ground necessarily fails. As Mr Littlejohn has already conceded, if his first ground is of no validity in law, this second ground also falls to the ground.
The third matter which he relies on is that this Court incorrectly dismissed his appeal. On 22 January 1974, counsel for Mr Littlejohn appeared in this Court, the Court of Criminal Appeal, and on the appeal being called and after some discussion, Mr Littlejohn’s counsel informed the court that he had instructions from his clients, that is Mr Littlejohn and his brother Keith Littlejohn, instructions which he had received that very morning to withdraw both appeals. He supported that statement by saying that the intention was that in lieu of proceeding with the appeal, proceedings would be instituted by way of prohibition or certiorari in the High Court. On that being intimated to the Court, the then Chief Justice, Chief Justice Fitzgerald, indicated what the court proposed to do, namely, that because no formal notice of abandonment had been served, the court would dismiss the appeal. And dismiss the appeal it did Mr Littlejohn now says that in fact, although he accepts that his counsel had instructions from his solicitor not to proceed with the appeal, those instructions were ill-founded and did not come from him. He also concedes that straight away he learned, or very shortly afterwards he learned, that his appeal had been dismissed. That was 3 and a half years ago. Nevertheless, it is only in the last twelve months or so, that he preceded to take any steps in the matter.
In the first place the order made by this court on 22 January 1974, was the only order the court could reasonably make in the circumstances. The court couldn’t force the appeal to go on, once the appellant’s counsel said that it was withdrawn. And secondly, even if the court had erred in any respect, Mr Littlejohn knew straight away that this had taken place, yet more than three years were allowed to go by without his taking any steps in the matter. Even if there is a point of law involved in this ground, it could not be said to be a point of law of exceptional public importance, nor could it be said that it would be desirable in the public interest that a further appeal should be taken — particularly as Mr Littlejohn allowed some three years or thereabouts to pass without taking any steps in the matter.
The fourth ground relied on is that when he applied for a copy of the indictment under which he was tried in the Special Criminal Court, he was provided with a copy which bore the stamp of the Dublin Circuit Court and which referred to a trial by jury. It is correct that the indictment that was used in the Special Criminal Court had those two defects, but they are only peripheral or superficial defects. The indictment was in substance correct in every possible respect. It bore simply two superficial flaws namely, a stamp of the Dublin Circuit Court and a reference to a jury. Mr Littlejohn was not misled in any possible way. The indictment that was used in the trial was perfectly correct in every substantive respect, so there is no substance in this point. Not alone is there not a point of law of any substance involved, but clearly there is no point of law of exceptional public importance, and even if there were, it would not be desirable in the public interest that a further appeal should be entertained. Accordingly for these reasons the application for a certificate under s.29 Courts of Justice Act 1924 must be refused.
D.P.P.-v- Brian Willoughby
[2005] IECCA 4 (18 February 2005)
JUDGMENT of Mr. Justice Kearns delivered the 18th of February, 2005.
The appellant was on the 2nd April, 2003, convicted in the Central Criminal Court of the murder of Brian Mulvaney on the 11th of March, 2000, at Templeogue in the City of Dublin. Another accused, Stephen Aherne was found guilty of manslaughter and a third accused, Neill Barbour, was acquitted.
The deceased was aged 19 years and had been the victim of a savage assault on the night of his death. In the hours preceding his death, he had been present along with the appellant and other youths at a house party in the area. It appears that both drink and drugs, including ecstasy, were available at the party. The post-mortem on the deceased carried out by the State Pathologist, Professor Harbison, revealed that the deceased had a blood alcohol reading of 89mg% and some small intake of benzodiazepines. The initial report from State Pathologist Professor John Harbison did not refer to the fact that Brian Mulvaney had also consumed ecstasy. At about 1:30am, the appellant and the deceased left the party together to visit a nearby shop, apparently for the purpose of purchasing cigarette papers to roll some joints of cannabis. They were joined by the second and third named accused and, sometime after 2:00am, having been lured by the three to a quiet spot, the deceased was set upon. He broke free from this initial assault and ran about 100 yards before being caught, at which point he was repeatedly kicked and beaten to the head and other parts of the body. A length of timber was also used in the beating. He was found shortly afterwards lying on his back in the middle of the roadway in an unconscious state. His upper clothing had been torn off by his assailants. He was having great difficulty in breathing when first found by witnesses Canny, Connolly and Devine at about 2:30am. He was turned on his side in an effort to facilitate breathing. An ambulance arrived at approximately 2:40am. He was then noted not to be breathing and various efforts to restore breathing failed. The ambulance crew conveyed him to Tallaght Hospital where he was pronounced dead approximately 1 hour later. Professor Harbison noted that the deceased’s lungs had accumulated blood and other fluid and concluded that the source of same in the lower lobes of the deceased’s lungs was due to the facial injuries sustained by the deceased in the course of the assault. These injuries, particularly in the region of the mouth and nose, resulted, in Professor Harbison’s opinion, in the inhalation of blood into the lungs leading to death by asphyxiation. He noted the deceased’s airway from the tongue downwards to the windpipe or trachea and into the lungs contained a mixture of blood and mucus. The deceased’s cough reflex, which might have enabled him to cough up this blood and fluid, was, in Professor Harbison’s opinion suppressed owing to a concussion which in turn had been caused by multiple head injuries suffered during the assault.
The appellant did not give evidence during the trial, nor did he seek in any way to resile from the statement which he subsequently made to the Gardaí at Terenure Garda Station in the presence of his mother on the 11th March, 2000, in which he stated:
“I just want to tell you what happened while my Mam is here. I was at a party and I left the party with another guy. I don’t know this guy. We walked to the Orwell Shopping Centre. There we met Gookie at the Orwell Shopping Centre. The other guy was slagging the Orwell crowd and the area. A fight broke out. The fight started at the back of the church. There was no weapon used during the fight at the back of the church. I was using my fists and my feet on this guy. He got away and we chased him over to the Watercourse. I caught up with him and I began to beat him again. I was using my fists and my feet. I was punching and kicking him. I was kicking and jumping on his head when he was on the ground. I kept kicking kicking. I did not use any weapon I just kept kicking him and jumping on him. Gookie shouted at me to leg it and I just ran and left him lying on the ground. When we were pulling out of this guy his hoodie and top came off. I don’t remember what happened to them. At 21:01 D/Sgt Seamus Quinn enters interview room and shows Brian Willoughby a length of timber. That’s the stick I seen in the attack. Gookie got that stick from somewhere. I am happy that is the stick that was used during the attack on the guy, I kicked and punched. 21:04 D/Sgt Quinn leaves the interview room. I don’t feel that I was responsible for what has happened I just went berserk. I am sorry for his family. This statement has been read over to me and it is correct. I do not wish to change anything.”
While the court will return to the facts of the assault and other evidence at a later point, it should be noted at the outset that at no point either during the party, or thereafter until the time of his death, did the deceased evince any signs of illness, diminished consciousness, erratic behaviour or anything untoward or unusual. On the contrary, the evidence in the case demonstrated that his actions both at the party and from the time he left the party were consistent with those of a normal healthy young man of his age. Indeed on the accused’s own account, the deceased endeavoured to escape the assault perpetrated upon him and was later found to have some defensive injuries to his hands and arms. While he was only pronounced dead on arrival at the hospital, it seems clear that his death took place not long after the assault. Following the arrival of the ambulance on the scene, desperate efforts were made to resuscitate the deceased which included the use of a pump and suction to clear his airways.
The trial of the accused came on in February, 2002, at which point it emerged that further toxicology analysis in respect of the deceased’s blood had revealed that the deceased had ingested a quantity of ecstasy on the night of his death. His post-mortem blood ecstasy level of 2microgram/ml was later stated, in the 2003 trial, by Dr. Bridin Brady, a senior chemist in the State Laboratory, to be a ‘potentially’ fatal quantity. However, that evidence was severely qualified by her when she indicated that many persons could take such a dosage without any significant ill-effects, whereas the same quantity could prove fatal for a susceptible person in certain instances. Equally, significantly higher quantities had not caused death in other cases.
When this issue emerged during the course of the first trial in February, 2002, counsel for all accused insisted upon their entitlement to have some remaining blood samples of the deceased analysed and to seek expert opinion thereon. As that process would take some time, the jury was discharged by the then trial judge, Butler J, and a lengthy adjournment of the case then followed.
In the aftermath of the aborted trial, counsel for all accused collectively decided they would retain an independent pathologist on the issue of causation. Professor Busuttil, a forensic pathologist from Edinburgh in Scotland was then retained by the legal representatives for the second named accused on behalf of all co-accused. It was further agreed between the representatives of the accused that senior counsel for Stephen Aherne would travel to Edinburgh for the purpose of consulting with Professor Busuttil. It was also agreed that Aherne’s counsel would conduct the cross-examination of Professor Harbison on the issue of causation and lead the direct evidence and any re-examination necessary from Professor Busuttil when he gave his evidence at the trial. All of this strategy was put into effect.
From this it can be seen that the accused’s legal representatives were keenly aware of the importance of this issue and had some 13 months within which to conduct all necessary inquiries as to the possible role played by the ingestion of ecstasy in terms of causation.
In the course of his evidence at the re-trial, Professor Harbison did not alter his view as to the cause of death, notwithstanding the new developments which had occurred. He remained of the view that the deceased died of asphyxiation due to the accumulation of blood/fluid in the lower lobes of his lungs emanating from facial/nasal injuries and which the deceased was unable to cough up, owing to his comatose state attributable to head injuries received in the assault. He described three or four of the impacts to the head as having led to concussion and loss of consciousness. Specifically, he ruled out any suggestion that blood in the lower lobes of the lungs could have been caused by drug overdose. He identified the liquid in the lungs as consisting of blood and mucus, the latter being nasal mucus, and was not at trial challenged on this view although Professor Busuttil later in his evidence offered the view that the fluid in the lungs could be attributable to pulmonary oedema.
Professor Busuttil did not disagree with Professor Harbison insofar as the mechanism of death was concerned, namely, that the inhalation of blood while Brian Mulvaney was unconscious resulted in death by asphyxiation. He also agreed that a state of unconsciousness could suppress the coughing reflex which would normally enable a person to cough up blood and fluid in his lungs.
He differed from Professor Harbison however, both as to the cause of unconsciousness and as to the effects of ecstasy consumed by the deceased when taken in conjunction with alcohol and other drugs on the night in question. Insofar as the assault was concerned, no marked damage had been found to the deceased’s brain, nor were there any deep injuries to the facial bones, and in the ordinary course such injuries should not have proved fatal. He later agreed, however, that blows to the head suffered by the deceased could have resulted in concussion and unconsciousness, although he did not feel they would have caused a state of unconsciousness so deep or lasting as to suppress the coughing reflex mechanism. He felt that ecstasy was also a possible contributor to the deceased’s state of unconsciousness having regard to the high level of ecstasy which could directly affect the heart or brain, or both, itself causing unconsciousness and/or death by toxic poisoning. Any abnormality of the heart would also be significant in that it would render a person more susceptible and he noted in the instant case that the deceased’s heart was larger than normal. He was not aware however of any pre-existing heart condition.
He agreed, however, that the level of alcohol present was not great and that the presence of benzodiazepines in this case was not of any major import. He also agreed that if the deceased had not been battered in such a way that he was bleeding from his nose and lips he would not have died, because there would not have been a source for the bleeding which went down the back of his throat as he lay on the ground. He also agreed in cross-examination that he had no details of the actual assault and had not read any statements from the witnesses as to the facts. He further agreed on cross-examination that where a person died from toxic poisoning by ecstasy, one would expect to find evidence of cell death or necrosis of the liver and that no such evidence had been reported in the instant case. Specifically, he agreed with Mr. O’Connell in cross-examination that ingestion of ecstasy does not cause lungs to fill up with blood. He also agreed that there was no evidence of hyperthermia, which is overheating of the body and a central feature of ecstasy deaths, in the present case. He accepted there was no pathological evidence to support a contention that this was an ecstasy death. However, had this been a sudden unexpected death at a party involving a man of this age group who had this level of ecstasy consumption, it would be appropriate to look to ecstasy as the cause of death. A person could lapse into unconscious out of the blue, simply because of the effect of the drug on the brain or heart.
Subsequent to the trial and conviction of the appellant a retired pathologist, Professor Dermot Hourihane, who had apparently followed newspaper reports of the case, contacted the appellant’s solicitor to express concerns as to the cause of the death of Brian Mulvaney. According to the affidavit sworn by the appellant’s solicitor in respect of the application now made to this court to admit new or additional evidence, Professor Hourihane intimated to the appellant’s solicitor that his experience had taught him that blood in the lungs was a classic symptom when ecstasy poisoning had occurred. It appears that this view was communicated to Mr. O’Rourke by Professor Hourihane before he received the documents set out hereunder. They were then sent to him and the documentation included a transcript of the evidence given at trial by Professors Harbison and Busuttil, their various reports, a report of Dr. Van Pelt (a toxicologist and witness for the defence who was not called at the trial), toxicology reports from the State Laboratory and from Beaumont Hospital, Professor Harbison’s statement about ecstasy and it’s effects and the autopsy photographs of the deceased. Thereafter Professor Hourihane also received copies of slides from the State Pathologist’s office which were made from tissues taken during autopsy for histological examination. Professor Hourihane does not appear to have been supplied with a transcript of the evidence heard in the Central Criminal Court, other than the evidence of Professor Harbison and Professor Busuttil. Specifically, he does not appear to have had sight of either the statements or evidence of witnesses who testified as to the behaviour of the deceased at the party or of those who gave accounts of his movements and condition thereafter up to, including, and after the time of his assault, or the accounts given by the ambulance team of efforts to clear the deceased’s airways.
Professor Hourihane, whose qualifications and experience are not in dispute, proceeds in his report dated 7th December, 2004, to set out his findings. His report states how death from ecstasy follows “psychological (sic) changes and altered consciousness”. The most common effect, he states, is excessive sweating and high temperature. These give rise to the pathological changes of heat-stroke, a condition usually found in warm, humid climates, especially after unaccustomed exercise. The changes found are varied, but most often “they are the result of an abnormal state of bleeding with areas of death of groups of cells (focal necrosis) also found (heart, liver, pituitary).”
Autopsy findings from heat-stroke may include swelling of the brain. In Professor Hourihane’s opinion, the bleeding state from heat-stroke may give rise to scattered pin-point haemorrhages (petechiae) and such haemorrhages are most often found in lungs, heart and brain, and when present in the lungs affect the lower lobes predominantly. Blood may also be found mixed with mucus in the larger airways.
Professor Hourihane’s essential point however is the following. The finding of separate alveoli containing blood or oedema fluid is clearly present in the histology slides taken from the deceased and in his opinion is strong evidence for the existence of heat-stroke brought on by ecstasy. In his view, the presence of both would not be expected if the blood had trickled into the lungs from above, nor to his knowledge, is it a feature of pulmonary haemorrhage from other causes. In the instant case he felt there was both abnormal bleeding and in addition to the lung changes, he believed there was some evidence of fresh haemorrhage on the posterior surface of the heart as well as small haemorrhages in the histology slides of brain, myocardium, kidney capsule and pancreas.
Somewhat surprisingly, given the fact that Professor Hourihane was not furnished with critical documentation containing the testimony of other lay-witnesses already referred to, he continues:
“the possibility of inhalation of blood from a cut lip (sic) seems fanciful and unconvincing to me – if it had occurred, as suggested by Professor Harbison, then surely fresh blood would be plentiful in mouth and trachea (windpipe) instead of the small amount of ‘blood and mucus’ as shown in photos 25A and 26A in folder B?”
He went on to say that whether the blood in the lungs originated from the ‘cut lip’, as he felt had been suggested by Professor Harbison and agreed to by Professor Busuttil, or “as I am proposing, arose from bleeding from blood vessels within the lungs, the effect on respiration would be the same, so that asphyxia might follow in either case.
The significance of this is that it may not be possible to say whether petechial haemorrhages in the brain, skull and eyes (orbits) are the result of such asphyxia, or of the bleeding of heatstroke, or of the injuries inflicted to the head of the deceased.”
He also felt that the deceased’s ‘abnormal’ heart size might have been a contributory factor to death due to ecstasy overdose and also noted that the deceased’s thyroid was ‘overactive’, which could also be yet another contributory factor.
Mr. McMahon, Senior Counsel for the appellant, has urged the court to hear this new and additional evidence for the purpose of determining whether or not the conviction arrived at by the jury on the 2nd April, 2003, is safe. He contends that this information was not known to the accused legal team at the date of trial, that the same is credible and from a reputable source and may well have been sufficient, had it been available to the jury, to raise a reasonable doubt as to the cause of death of the deceased.
When the court sat to hear this appeal, copies of a letter dated the 26th January, 2005, written by Professor Busuttil which purported, following some discussion with Professor Hourihan, to address further some of the causation issues, were, without either leave of the court, or, it seems, the consent of the prosecution, simply handed up to members of the court to consider. The letter was not the subject-matter in any way of the Notice of Motion brought herein. The court strongly deprecates the tendering of material in such a fashion and declined to have regard to same.
Relevant Legal Principles
One may commence by stating that the Court of Criminal appeal clearly may hear new or additional evidence in certain circumstances.
Section 33 of the Courts of Justice Act, 1924, as inserted by s.7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, provides as follows:
“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal on –
(a) A record of the proceedings of the trial and on a transcript thereof verified by the judge before whom the case was tried and
(b) Where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers should record or transcript, as the case may be, contains,
With power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.”
This issue was most recently addressed by this court in The People v George Redmond (2004) 1 ECCA.
In that case Mr. Redmond had been tried and convicted on two counts of corruption arising from an alleged payment to him by one Brendan Fassnidge of £10,000 in cash in return for assistance in the purpose of a right of way. Fassnidge alleged he had procured the £10,000 from the Bank of Ireland in Blanchardstown before handing it over to the applicant. The prosecution did not produce the records from the bank in advance of the trial, even though there was an authorisation from Fassnidge and the evidence of a Garda witness was that no records were available. However, in the course of the trial, the bank manager suggested that records were available. The defence, not knowing what the records might show, elected to proceed without seeking sight of the records. After the applicant was convicted the bank records were ultimately obtained and did not support the allegations made by Fassnidge against Mr. Redmond.
In considering whether or not to admit the evidence on appeal, Denham J. stated (at p. 9):
“Counsel for the Prosecution stressed that it was a tactical decision by counsel to proceed with the trial after Mr. Sheeran’s evidence, and having taken that tactical decision the applicant could not now seek to revisit the matter in a different way. While there are, of course, cases where a tactical decision by counsel on behalf of a defendant may preclude him from raising a point in a court of appeal, this is not such a case. In this case, in the course of the trial it became apparent that there was admissible, relevant evidence, the nature and extent of which was unknown. In the circumstances where counsel had previously been given the impression that no such records were in existence, counsel cannot be faulted for not embarking on an inquiry of a witness nor of seeking to have a jury discharged.”
The court went on to adopt and apply the principles with regard to such applications which had been established in The People (at the suit of the Director of Public Prosecutions) v O’Brien (unreported, CCA, 29th January 1990) In that case McCarthy J. in an ex tempore judgment, identified three criteria as to whether or not certain evidence should be admitted as fresh or new evidence:
“Firstly…the existence of such evidence could not reasonably have been known at the time of the trial, secondly that it wasn’t in fact known to the accused or his advisors and, thirdly that it would materially affect the decision.”
While the court in Redmond adopted and applied these principles, it stated that the “three stated criteria are not the sole grounds for allowing in new evidence.”
Denham J. stated (at p.10):
“In this case the court decides the application on a broader basis. In a sense the prosecution knew of the evidence when Mr. Sheeran went and inspected the file and gave evidence mid-trial. Thus, as in O’Brien, it would be incorrect to say it could not reasonably have been known to the defence during the trial. But the circumstances were that it was not disclosed to either side before or initially at the trial. The court considers that it would not be fair if the only remedy available to the applicant was to seek a discharge of the jury and a new trial, in the course of the trial. The applicant is entitled to a fair trial. In the circumstances of this case, the court is satisfied that it could give rise to an injustice if the applicant were not given the opportunity of producing this evidence on the hearing of the application for leave to appeal and accordingly will grant this application.”
Accordingly, it may be seen that the Redmond decision provides a basis for suggesting that even where the three criteria in O’Brien cannot be met, there may still be cases where the requirements of a fair trial demand that new evidence be admitted.
It goes without saying that the public interest requires that a defendant should advance his whole defence at trial and not seek to do so years later. It would subvert the trial process if a defendant were to be generally free to mount on appeal a case which, if sound, could and should have been advanced before a jury. This is particularly the case where it is sought to introduce expert evidence on appeal to support a defence. As is pointed out in Archbold (Criminal Pleading, Evidence in Practice) 2001 Ed, par.7.214:
“There would rarely be a reasonable explanation for failure to call such evidence at trial, for expert witnesses were interchangeable in a way in which factual witnesses were not.”
It is also highly undesirable that the family and relations of a deceased victim of a crime carried out in violent and horrific circumstances should be subjected to any undue prolongation of the criminal process although we recognise that situations can and do arise where that is unavoidable.
A number of English authorities were opened to the court by counsel for the appellant to argue that this court should hear the new evidence.
In R v Lomas 53 Cr. App. R. 256 the appellant had been convicted of murder of his wife. A pathologist gave evidence that the cause of death was due to compression of the neck. He preferred not to call it strangulation because he had never seen a case of death from such a cause with less outward or internal signs of injury. He did however make findings which led him to the opinion that there had been continuous pressure on the deceased woman’s neck maintained for a period of thirty seconds. While the defence had the assistance of an expert pathologist, he was never called. On the hearing of the appeal, the appellant sought leave to call a distinguished pathologist who had been consulted following conviction and who had read the whole of the evidence, consulted with both the prosecution pathologist and the defence pathologist and had seen the neck structures which had been preserved by the prosecution pathologist. As a result of his study, he disagreed profoundly with the prosecution pathologist, stating the there was no evidence to support his view of firm, continuous pressure for at least thirty seconds. He felt that the compression could well have been for a very few seconds only.
The court referred to s.23 of the Criminal Appeal Act, 1968, under which new evidence could be received by it, noting that where such evidence is tendered to the court, it was thereby provided that the court should receive that evidence “unless they are satisfied that the evidence, if received, would not afford any ground for allowing the appeal.” The court noted that the evidence should be received by the court “if it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal and they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”
In the Lomas case the explanation offered to the court of appeal was that the defence only had available to it a relatively inexperienced pathologist who was not prepared to dispute anything in Dr. Hunts evidence.
In deciding in that case to admit the evidence, Fenton Atkinson, LJ. stated (at p.261):
“This court was most reluctant to allow this fresh evidence to be given. The normal case where fresh evidence is tendered and received under this section is on a question of fact, where, for example, some eye-witness or alibi-witness not previously available has later been discovered. Although the section in its terms appears wide enough to embrace fresh evidence of scientific or medical opinion, it seems to this court that only in the most exceptional cases would it be possible to say that there was any reasonable explanation for not adducing such evidence at the trial, and it is said with force by Mr. Inskip that if the defence are content to go into the trial with the somewhat inexperienced pathologist, (a) without asking for an adjournment to secure the assistant of a more experienced pathologist, (b) they should not be allowed in this court to have a second chance. Mr. Inskip asked rhetorically if this application were allowed, where is it to stop?
However, in this case we decided to admit the evidence. We think the appellants advisors took reasonable steps to secure the necessary medical evidence before trial and had from their proposed witness a report which in certain important respects assisted their case, and it was reasonable, particularly with the long vacation about to begin, not to ask for an adjournment to obtain a more experienced pathologist. They could foresee that, when the time came, their expert would find himself unable to disagree in any respect with Dr. Hunt. When defending counsel learned during the prosecutions case that the pathologist whom he had hoped to call could not disagree in any respect with Dr. Hunt, he could have asked for an adjournment, but it would have been unrealistic to have expected him to have done so in the circumstances.
We think further that on the facts of this case, particularly the fact that the injury to the tissues of the neck was so slight, justice required that if the medical opinion of Dr. Hunt on the single point which was the sole foundation for the charge of murder could now be challenged by a pathologist of equal standing, the appellant should be allowed to call such evidence. But just as the Court of Criminal Appeal which allowed fresh medical evidence to be called on appeal in Harding (1936) 25 Cr. App. R. 190 stressed the wholly exceptional nature of the course they took, so we regard this as an exceptional case depending on its own special facts and not as a decision giving any encouragement to similar applications in other cases in the future.”
In Harding, the appellant was convicted of the murder of her infant child in March, 1936, and sentenced to death. Her baby had been drowned in a canal. The appellants case was that she had fainted while feeding the baby and when she came to she realised the baby had rolled into the water from the canal bank. The new evidence which was allowed on appeal was evidence to the effect that the post-mortem condition of the infants body was compatible with death from shock due to water suddenly going up the nostrils, and that that could have happened if the infant had fallen from the appellants arms and rolled down the bank into the canal. Hewart L.C.J. stated (at pp.196-197):
“The question for this court to consider is whether, if that evidence had been given before the jury, it might have had the effect of raising in the minds of the jury a reasonable doubt. The function of the prosecution is, of course, to establish the case beyond a reasonable doubt. If it fails to fulfil that condition, the prisoner is entitled to be acquitted. The burden of proof is never upon the prisoner. Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution had failed to establish the case.
Looking at this evidence with care and recognising the force of the rest of the evidence in this case, we are clearly of the opinion that, if this evidence had been offered in the court below, there might have been upon the part of the jury a reasonable doubt as to the guilt of the appellant; or, to put it in another way, we cannot say that, if that evidence had been offered, the jury must inevitably have come to the same conclusion. In those circumstances the only conclusion which is possible for this court is to say that the appeal must be allowed, and the conviction quashed.”
The court, however, stressed that there were exceptional circumstances in that particular case.
It is also extremely important in the context of an application of this nature, as noted by the court in Harding, to look at the rest of the evidence so that the proposed new evidence can be properly evaluated in that context.
This must be particularly so when, in a case such as the present one, there are multiple accounts available to the court of trial as to what occurred on the night of the fatal assault, and as to the movements and activities of the deceased Brian Mulvaney up to and including the time of his death shortly after the assault.
On behalf of the prosecution, Mr. O’Connell S.C. has placed considerable reliance on the decision of the Supreme Court in The People (DPP) v Cunningham 2 IR (2002) 712.
This was a case where the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision involved a point of law of exceptional public importance for determination by the Supreme Court to determine whether the Court of Criminal Appeal, in hearing an appeal against the severity of a sentence, is strictly limited to considering the stated facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring. The court was clearly of the view that it should not receive such evidence.
Mr. O’Connell referred this court to the following passage from the judgment of Hardiman J (at p. 738):
“The Supreme Court, like the Court of Criminal Appeal, does not ordinarily hear fresh evidence but has power to do so under order of O.58 R.8 of the Rules of the Superior Courts. The way in which this jurisdiction is exercised in illustrated in such cases as Lynagh v Mackin (1970) IR 180 and Murphy v Minister for Defence (1991) 2 IR 161. Finlay CJ. In the second of these cases stated the matters which an accused seeking to introduce further evidence must show as follows at p. 164:
‘(1) the evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with a reasonable diligence for use at the trial
(2) the evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.
(3) the evidence must be such as is presumably to be believed or is apparently credible, though it need not be incontrovertible.’
The first and most basic of these requirements, that the evidence must have been in existence at the trial, in my view applies to an appeal to the Court of Criminal Appeal also and arises from the fundamental nature of an appeal on the note as opposed to an appeal by oral rehearing. This requirement may not apply to a ‘new or newly discovered’ fact relied upon for the purpose of an appeal pursuant to section 2 of the Criminal Procedure Act, 1993. That section, however, has no application, in the present case.”
These requirements differ subtly from the criteria laid down in The People (DPP) v O’Brien, which emphasise absence of knowledge on the part of the appellant of the proposed additional evidence, whereas the criteria in Cunningham focus more on the requirement to establish that the evidence was in existence at the time of the trial and must have been such that it could not have been obtained by the exercise of reasonable diligence for use at the trial.
This court has some doubt as to whether Cunningham is entirely appropriate to a case where leave is sought to introduce new or additional evidence to suggest that a conviction is unsafe. Cunningham was concerned exclusively with the jurisdiction of the Court of Criminal Appeal when reviewing a sentence and, as the quotation from Hardiman J. amply demonstrates, the Supreme Court took the view that the jurisdiction of the Court of Criminal Appeal was circumscribed in that regard because it’s function in reviewing a sentence was to do so on the trial note only and to decide whether or not there had been any error of principle. While Hardiman J. describes Finlay CJ. in Murphy v The Minister for Defence as setting out matters which an “accused” must show when seeking to adduce fresh evidence, that particular case, as is clear from following paragraphs, was a case where the plaintiff was claiming damages for a back injury. The court in Murphy restated (with some minor alterations) the principles already set out in Lynagh v Macken (1970) IR 180, which was also a civil case and which in turn was based on the three conditions elaborated by Lord Denning in Ladd v Marshall (1954) 1 WLR 1489, also a civil case
It seems to us that the criteria identified in O’Brien are more apposite when considering an application to introduce fresh evidence in an appeal against conviction in a criminal case. The principles are similar to those found to be appropriate by the Court of Criminal Appeal in England in R v Parks (1961) 3 All ER 633, where Lord Parker, CJ. summarised the principles in the following way (at p. 634):
“First, the evidence that it is sought to call must be evidence which was not available at the trial. Secondly, and this goes without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is credible evidence in the sense that it is well capable of belief; it is not for this court to decide whether it is to be believed or not, but it must be evidence which is capable of belief. Fourthly, the court will after considering that evidence go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence of the trial.”
The court also noted:
“it is only rarely that this court allows further evidence to be called and it is quite clear that the principles on which this court acts must be kept within narrow confines, otherwise in every case this court would be asked in effect to carry out a new trial.”
This must be seen as an extremely important consideration, given that the Court of Criminal Appeal in A.G. v Kelly (1) IR (1937) 315 made it clear that where the court orders that fresh evidence be heard by that court as part of, and before determining, the appeal, it would give leave also to the State to cross-examine witnesses and to submit rebutting evidence.
Drawing these various strands together, it seems to this court that the following principles are appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal:
(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.
(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.
(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.
Application of Legal Principles to the Facts of the Case
The court accepts that the particular interpretation given by Professor Hourihane to the pathology and histology findings in this case was not known to the accused’s legal representatives at the date of trial.
The court, however, is surprised, to say the least, that they did not have such knowledge.
In this case, there had been a traumatic and highly publicised trial in February, 2002, which collapsed on the very issue of the role played by ecstasy in the matter of the causation of death of Brian Mulvaney. The critical importance of exploring the role, if any, which ecstasy may have played in his death was thus glaringly obvious from February, 2002. An interval of some 13 months then elapsed before the retrial took place. On any view, that was ample time within which to research this issue thoroughly, completely and exhaustively. The question as to whether fluid found in the deceased’s lungs was injury- induced or present in the lungs for some other unconnected reason was clearly a matter which could have been canvassed with Professor Busuttil in consultation or correspondence and was a matter actually touched upon by Professor Busuttil when giving his evidence.
There is no suggestion whatsoever in the report of Professor Hourihane that in forming his opinion he is bringing to bear any new scientific or medical knowledge or insight which was unavailable at the time of either trial. On the contrary, the references cited by Professor Hourihane at p.7 of his report include studies published in the 1980’s and 1990’s, and indeed in one case (in relation to ‘heatstroke’), 1946.
Could, therefore, the view now expressed by Professor Hourihane have been obtained at time of trial either from him, or some other expert in the field, by the exercise of reasonable diligence and on making full and comprehensive enquiries? In our view, it could. There is no suggestion that there was any impediment in the way of acquiring this information. The fact that Professor Hourihane came forward by happenstance does not mean his views or opinions are either inaccessible, unusual or out of kilter with well recognised and readily available medical or scientific understanding. Indeed they are offered by Professor Hourihane as being part of such established medical and scientific knowledge.
The application accordingly fails one of the essential limbs of the test elaborated in the authorities.
Furthermore, the court is quite satisfied that nothing in the proposed evidence of Professor Hourihane would have made, in the words of O’Brien, a ‘material difference’, or, to put it another way, it could not in our view have raised a reasonable doubt in the minds of the jury on the issue of causation. In isolation or in a general sense Professor Hourihane’s views may be credible, but in our opinion are not capable of being seen as such having regard to the particular meaning of ‘credibility’, seen, as it must be, in the context of the facts of this case and the totality of evidence.
At the outset, the court would wish to stress that Professor Hourihane acted from entirely proper motives and is far removed from the ‘officious busybody’ or ‘meddlesome crank’ who may occasionally come forward with some esoteric view about a case. The court accepts that he acted as he did from well-intentioned concern to see that no injustice occurred in this case.
However, his report seems to us to have been compiled in something of an evidential vacuum, in that he lacked the critical accounts of lay-witnesses, including fire and ambulance crew, who saw Brian Mulvaney on that night. Those witnesses included both those attending the party, and also Nicola Canny, Damien Devine, Gerard Connolly and Gillian McGuinness, all of whom gave graphic evidence about the position of Brian Mulvaney’s body when he was first found, lying face up on his back with extensive bleeding from his facial injuries. To describe the deceased’s facial injuries simply as a ‘cut lip’ grossly understates the severe injuries described in detail by Professor Harbison. Professor Harbison’s report refers to a ‘cut lip’ but from his evidence we know that this was more than an ordinary cut lip – it was a deep and extensive laceration which was accompanied by other nasal and facial injuries. They were injuries likely to cause extensive, as distinct from slight, bleeding. Christopher O’Reilly from the ambulance team also described the considerable efforts made to clear the deceased’s airways by methods which included bagging and suction applied to the mouth, which said efforts resulted in the extraction of blood therefrom. This evidence showed there was blood in the deceased’s mouth and/or trachea. In not having this evidence, Professor Hourihan’s opinion must be seen as seriously open to question. It was all vital on the issue of causation. So also was the evidence of Garda Stack who at 2:15am drove past the location where the deceased’s body was found at 2:30am but saw neither the deceased or his attackers, thus tying the time of the assault and the breathing difficulty from blood and fluid in the lungs into the closest imaginable temporal proximity.
This is emphatically not a case where the deceased collapsed at a party where ecstasy was in plentiful supply, nor is it a case where at any time prior to the horrific assault which was perpetrated upon the deceased did he evince the slightest sign of being unwell. On the contrary, he was able to walk some distance to a shop, come away from same, endeavour to elude or escape his attackers and put up such resistance as he could, suffering as a result some defensive injuries to his hands and arms. The facial injuries suffered by the deceased seem clearly from the accounts of witnesses to have resulted in very significant bleeding which, having regard to the position of his body in the aftermath of the assault, could only have resulted in the inhalation of substantial quantities of blood. Professor Harbison has characterised any other fluid in the deceased’s lungs as mucus from the nasal cavities and was not, as has already been pointed out, challenged at trial on this opinion. The unfortunate deceased suffered multiple injuries with both lacerations and abrasions to the face and head and nobody either at the trial or since has suggested they were not such as were sufficient to bring about a loss of consciousness, even if they did not involve major fractures to the skull or facial bones. Further, we have been shown photographs of the deceased’s facial injuries which clearly suggest that the head and facial injuries were likely to have caused extensive bleeding, as was indeed confirmed to be the position by those first to arrive on the scene in the aftermath of the assault. The deceased had stopped breathing, had an extremely low pulse and was effectively dead when the ambulance crew arrived within a short time of this assault, so that everything points to and supports Professor Harbison’s view that the assault caused unconsciousness and suppression of the coughing response resulting in death by asphyxiation in this case.
For Professor Hourihane to be correct it would require the occurrence of a truly remarkable coincidence whereby the ecstasy poisoning contended for, or lung haemorrhage caused by ecstasy, occurred at precisely the same time as this vicious assault. The odds against such an event are, we would think, enormous. We do not believe Professor Hourihane’s contribution, however well-intentioned, can be seen as sufficiently ‘credible’ (giving the word its meaning in the particular context) to raise any doubt, yet alone a reasonable doubt, in the minds of the jury as to the cause of death in this case. A remote possibility is not in this regard to be equated with a reasonable doubt.
The Report dated 24th February, 2003, of Dr. van Pelt, which, very properly, has been disclosed to the court on the making of this application on behalf of the appellant, fortifies us in the conclusions we have reached. Dr. Pelt is a lecturer in toxicology/biochemical pharmacology in University College Cork. In his report he states:-
“… I have performed a thorough search of the scientific literature in relation to ecstasy related deaths and their causes (including the combination of ecstasy and cannabis and/or alcohol.) Around the time of death, Mr. Mulvaney did have a substantial concentration of MDMA (ecstasy) in his blood. However, in my view, there exists no link between the amount of ecstasy in the blood and the reported cause of death, i.e. blood in the lower lobes of both lungs based on the assessment of the available information.”
Accordingly, the court will refuse the application to hear or receive this additional evidence.
Other Grounds of Appeal
Essentially two other grounds of appeal arise in this case, being –
(a) Excessive intervention by the trial judge during the course of the evidence of Professor Fitzgerald, and
(b) The alleged failure on the part of the trial judge to adequately direct the jury that even if they found the accused was not insane at the time of the killing, they could nonetheless find that he did not have the necessary intent to found a conviction of murder by reason of his disturbed mental state at the time of the killing
(a) Interventions by the trial judge
It is submitted on behalf of the appellant that when the trial judge questioned Professor Fitzgerald at the close of his cross-examination by the prosecution, the trial judge went beyond mere clarification for the jury, but rather his questions amounted to conducting the case on behalf of the prosecution.
Having carefully perused the transcript of the entirety of Professor Fitzgerald’s evidence and the trial judge’s charge to the jury in respect of such evidence, we do not believe the trial judge went beyond what is permissible.
It goes without saying that judges must exercise restraint when making interventions and must not descend into the arena.
Archbold (Criminal Pleading, Evidence in Practice) 2001, has the following to say on this topic (at par.7-81):
“Interventions by the judge during the trial will lead to the quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they do not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way.”
In our view none of these considerations arise in the instant case.
Firstly, the questions put to the witness by the trial judge came at the conclusion of that witness’s evidence. This is the normal and appropriate time for a trial judge to clarify any point in evidence which he regards as being necessary. There was absolutely no question of the trial judge preventing Professor Fitzgerald from telling his story or giving his evidence in his own way.
When the appellant’s counsel raised an objection to the sequence of questions asked by the trial judge, he immediately desisted from asking any further questions and offered to both sides the opportunity of further questioning Professor Fitzgerald in respect of the matters he had by conversed with the witness. This offer was availed of by the appellant’s counsel.
The court was referred to the decision of the Court of Criminal Appeal in The People (DPP) v Scanlon CCA No. 25 of 1983 where a conviction was quashed for reasons which included, inter alia, interventions by the trial judge during the evidence.
This was a rape case where the only evidence capable of establishing that it was the accused who raped the complainant was a palm print found on the window of the room in which the rape occurred. The court noted the supreme importance of the evidence of the identification of the palm print and ruled that the interventions by the learned trial judge in both the direct evidence and the cross-examination of the technical witness proving the identification of the palm print was so extensive as to impede the proper cross-examination of this witness on behalf of the accused and constituted an unsatisfactory element in the trial. The court further noted that the accused was extensively questioned by the learned trial judge when he was giving evidence on his own behalf. The extent and nature of this questioning was such as might have conveyed to a jury a strong element of disbelief by the trial judge of some of the evidence given by the accused. Notwithstanding proper warnings subsequently given as to the exclusive right of the jury to assess the facts in the case, the Court of Criminal Appeal felt the interventions could have led to an unsatisfactory element in the trial.
This brief resumè indicates that the Court of Criminal Appeal will not, and should not, intervene to quash a conviction unless the interventions are so pointed and persistent as to create a real risk of seriously influencing the jury. We are satisfied that the trial judge, who undoubtedly pressed Professor Fitzgerald quite strongly in the course of his questioning, did not in our view exceed the bounds of what is permissible when so doing.
In the course of his charge in summing up to the jury the learned trial judge repeatedly emphasised to the jury that the facts of the case and the assessment of witnesses was entirely a matter for them. We note that no requisitions were raised at the conclusion of the charge to the jury to suggest that the trial judge had mis-characterised Professor Fitzgerald’s evidence or belittled it in any way.
We reject this ground of appeal.
(b) The alleged failure on the part of the trial judge to direct the jury as to intent
The defence offered by the appellant to charge of murder at the trial was that of insanity. To that end, the defence called a psychiatrist, Professor Fitzgerald, and the mother of the accused, Mrs. Teresa Willoughby. Professor Fitzgerald had known the appellant for many years and had been professionally involved in endeavouring to assist the appellant with a variety of personality problems and difficulties which included Attention Deficient Disorder, Hyperactivity, Impulsivity and Aggression. Mrs. Willoughby gave confirmatory evidence in this regard and dealt in particular with the appellants disturbed mental state and extreme behavioural patterns which were evident, in particular, in the week leading up to the night in question. The State in turn called its own psychiatrist, Dr. Cleo van Velsen who, while she accepted that the appellant had a mental disorder, was of the view that he was capable of knowing the nature and quality of his actions and of distinguishing right from wrong.
The jury rejected the case on insanity, by inference at least preferring the evidence of Dr. van Velsen to that of Professor Fitzgerald.
There is no real complaint on behalf of the appellant as to the adequacy of the trial judge’s charge to the jury as regards the definition of insanity, or the onus of proof in establishing same. Mr. McMahon on behalf of the appellant submits however that the trial judge failed to adequately direct the jury that, if they were to reject the defence of insanity, they should nonetheless pay particular regard to evidence of his disturbed mental state of mind at the time of the killing to determine whether or not he had the necessary intent to found a conviction for murder.
Counsel does not dispute that in the opening portion of his charge to the jury, the learned trial judge adequately defined the offence of murder under s.4 of the Criminal Justice Act, 1964, and explained to the jury that while there was a statutory presumption that an accused person intended the natural and probable consequences of his action, the onus of proving beyond a reasonable doubt that the presumption was not rebutted at all times remained on the prosecution. Nor does Mr. McMahon dispute that the trial judge made it clear, in this portion of his charge at any rate, that the jury were to bring to this assessment a subjective test to determine whether the accused acted with an intention to kill or cause serious injury.
Thus, it was submitted, on reviewing the evidence as to the applicant’s mental state, the trial judge should have dealt with it firstly when defining the offence of murder under s.4 of the Criminal Justice Act, 1964, and then, secondly, in relation to the special defence raised of insanity. All this was done but, Mr. McMahon submitted, it behoved the trial judge to draw the jury’s attention thereafter to:
(i) The necessity to be satisfied by the prosecution that notwithstanding evidence as to the applicant’s mental state, he had the capacity to form the requisite intent for murder. If not, the verdict should be manslaughter.
(ii) The fact that this issue was a question independent of whether the defence had satisfied them on the balance of probabilities that the applicant was legally insane at the time of the killing.
Mr. O’Connell in response to this submission focused on arguing that under this ground of appeal Mr. McMahon was effectively endeavouring to introduce a defence of diminished responsibility or flawed intent as a defence to murder. Both suggestions had been emphatically out-ruled, the first by the Supreme Court in The People (DPP) v O’Mahony (1985) IR 517 and the latter by the Court of Criminal Appeal in The People (DPP) v Reddan and Butler (1995) 3 IR 560. In Reddan, Blayney J. had stated (at p.569):
“when a person is charged with an unlawful killing and the actual killing is not denied only two defences are possible: provocation, which would have the effect of reducing the offence to manslaughter, and insanity, which would result in a finding that no crime had been committed at all (see The People (DPP) v O’Mahony (1985) IR 517). Mr. MacEntee does not seek to rely on either of these defences but submits there are degrees of intent, and that if the jury was satisfied that the intent of his client was flawed, she should be found guilty of manslaughter only and not murder. The court is satisfied that no such defence exists in law.”
The court feels that the response of prosecution counsel is not really meeting the point raised by Mr. McMahon, but is rather addressed to other points which were not made.
Essentially, what Mr. McMahon is submitting is that the jury should have been warned that, even if they rejected the defence of insanity, they should nonetheless have had regard to all the evidence tendered as to the accused’s mental state to determine whether or not he had the requisite specific intent to found a conviction for murder.
This court is not satisfied that the trial judge failed to give an adequate direction to the jury as suggested. In the course of a lengthy charge the trial judge comprehensively explained the ingredients of murder and manslaughter and the requirement to establish intent in the case of the former. At p.37 of his charge on 1st April, 2003, White J. stated in relation to the offence of murder:
“…the State must establish….that that person intended to kill or cause serious injury…”
“There are, as I say, four possible – I do not think I have already said that there are three possible verdicts in respect of each accused. In relation to Mr. Willoughby, the possible verdicts are, guilty of murder, guilty but insane, guilty of manslaughter, or not guilty. There are four possible verdicts in relation to Mr. Willoughby. I would remind you that the onus of proof in relation to murder and manslaughter rests on the prosecution, that in relation to a possible verdict of guilty but insane, the onus of proof rests upon Mr. Willoughby, but it is on the balance of probabilities and not beyond a reasonable doubt.”
This direction followed almost immediately after an exhaustive and meticulous resume of the accused’s entire psychiatric history. On the jury being recalled the judge further instructed them (at p.63):
“What I mentioned in relation to the three accused, there are circumstances where, in relation to each of them, you might come to the conclusion that the State has either failed to show the necessary causation for death or the necessary mental intent, and in those circumstances, you could have a situation where there is no intent and you could reduce the murder to manslaughter if it caused a death or serious injury. If it is causing death or a serious injury, you could bring in a manslaughter.”
On the jury being further recalled on 2nd April, 2003, the judge gave further directions on the distinction between murder and manslaughter, focussing once more on the issue of intent. No requisition as to the adequacy of the charge in relation to intent or on any aspect of the judge’s charge was made by or on behalf of the appellant
We are satisfied that the learned trial judge’s summing up was more than adequate to meet any requirements of the case and that the medical or psychiatric evidence was spelled out in sufficient detail to allow the jury consider fully the entire issue of intent. Further we do not believe it was necessary to sub-divide and compartmentalise these matters in the manner suggested under this ground of appeal
The court will accordingly dismiss the appeal herein.
Attorney-General v. M’Gann
7[1927] IR 504
Court of Crim. App.
The judgment of the Court was delivered by
KENNEDY C.J. :
This is an application for an extension of time within which to apply for leave to appeal. The appellant was tried in the Circuit Court at Ennis on a charge of indecent assault, and convicted, on the 16th of June, 1927, when he was sentenced to two years’ imprisonment with hard labour. He was refused a certificate by the learned Circuit Judge, and it was not until the 27th of July that he served notice of the present application for an extension of the time limited by the Rules of Court within which notice of the application for leave to appeal must be given. He has, therefore, far exceeded the time within which the Court is permitted by the rules to entertain such an application for an extension of time (see Rule 4 of the Rules of the Court of Criminal Appeal), and his application is accordingly made under the usual authority given to the Court by Rule 40 to dispense from the requirements of the rules.
Now the proposed application for leave to appeal sets out three grounds upon which the prisoner proposes to move: (1) innocence of the charge; (2) his inability to procure a solicitor or counsel for his defence at the trial; (3) his desire to call an additional witness on his own behalf. The only ground upon which the application for extension of time to serve that notice is asked is that the prisoner has been trying to raise money to procure professional assistance, but has not succeeded in doing so. The present application has been brought before the Court by the Registrar, pursuant to the rules.
We have on several occasions discussed the principles upon which we would entertain applications for extension of time to serve notice of application for leave to appeal. None of these previous cases has so far been reported, and I must, therefore, now re-state the guiding principles which we have laid downboth for the information of the present applicant, and in the hope that the time of the Court may be saved in future by the publication of a report of the present case in theLAW REPORTS. I do not make this observation by way of adverse criticism of the Reports, for I am well aware of the fact that they are hampered by financial limitations; but provision should be made from some quarter for thiswhich is really a public service.
It is not the practice of this Courtand we have already so declared on the hearing of several previous applications to entertain any application for an extension of time, whether to apply to the trial Judge for a certificate, or to give notice of appeal, or to give notice of application for leave to appeal, if the applicant does not at the time of applying for such extension of time show that he proposes to rely upon grounds of appeal or grounds for applying for leave to appeal (as the case may be), which are grounds such as can be entertained by the Court in the exercise of its statutory jurisdiction.
In the present case the applicant, in his proposed notice of application for leave to appeal, states, as I have already mentioned, three grounds upon which he proposes to rely.
The first of the stated grounds is his averment that he is innocent of the charge of which he was convicted. Such an averment is not per se a ground of appeal to which the Court can listen. If the Court admitted an appeal on that ground alone, it would be usurping the place of the jury. The statutory powers of this Court do not include any power to re-try the issue as a jury.
The second of the stated grounds is that the applicant was unable to procure solicitor or counsel. That is not, however, in itself a sufficient ground of appealthere being no suggestion of an unfair or unreasonable refusal of an adjournment for the purpose of obtaining professional assistance. The applicant was, it appears, without means to procure such assistance. It is not suggested by him that any unfair advantage was taken of his position in conducting his own defence. No provision has been made in this country for the defence of poor prisoners at the public expense (save in capital cases), and no doubt a greater responsibility is thrown upon the trial Judge where a prisoner is without legal aid; but the want of professional aid is not a legal ground of appeal.
The third, and last, of the stated grounds is that the prisoner wishes to call a further witness for the defence for the purpose of proving an alibi. The admission of fresh evidence on appeal requires special circumstances to justify it. The Court has already dealt with this matter in a number of cases, most of which, as I have said, remain unreported, so that we have frequently to re-state principles and rules which have been previously defined with every care. As a matter of procedure and practice, the Court has laid down that whenever application is made to call fresh evidence, the applicant must furnish to the Court a proof of the evidence which each new witness is to givei.e., a statement taken down from the witness himself of the testimony which he will give, if called. If the appellant has a solicitor, the statement should be taken by such solicitor, and furnished to the Court on his responsibility. The statement should include the explanation offered by such witness for his failure to give evidence at the trial, if he was asked to do so. The Court has laid down that (except in the rarest and most exceptional circumstances) the Court will not admit fresh evidence on appeal which was available at the trial, but which the applicant abstained from using; and will not allow fresh evidence on appeal for the purpose of making a new case or a case inconsistent with that made by the applicant at the trial, nor merely to supplement evidence already given at the trial.
In the present case no proof of the proposed witness’s evidence has been furnished to the Court; but, if we take what the prisoner has indicated as to its intended purport, we find that the witness is to prove that the prisoner was working at a place about two miles, as he alleges, from the scene of the crime at about 11 o’clock a.m., which is not the hour when the crime is alleged to have been committed, but a substantially later time, consistent with the prisoner having committed the crime at the time and place alleged by the prosecution. The evidence, therefore, would not establish the alibi which the prisoner now suggests, and is really hardly relevant evidence.
Moreover, though a brother of the proposed new witness was called as a witness at the trial, the prisoner did not apply to the State solicitor to have this particular witness summoned to give evidence at the trial. The application to have him examined now is merely an after-thought, with no reality or substance in it, and a very belated after-thought at that.
The Court could not, therefore, grant the application to take the proposed new evidence.
Accordingly, inasmuch as the applicant has not shown good grounds for an application for leave to appeal under the Act, the Court cannot grant an extension of time for the making of such an application. The present application is, therefore, refused.