Corroboration
Cases
Attorney-General v. Durnan (No. 2).
[1934] IR 540
The judgment of the Court was delivered by Mr. Justice Murnaghan.
MURNAGHAN J. :
16 May
Owen Durnan, who has applied for liberty to appeal, was on 16th January, 1934, convicted at the Dublin Circuit Court of having conspired on or about the 17th and 18th days of December, 1929, with one, Christopher Farnan, to steal a quantity of coin, the property of the Northern Banking Company. He was also charged with receiving a sum of £500 or part thereof, the property of the same company, knowing it to have been stolen, but the jury were unable to agree upon this count.
The charges centre round an audacious and clever robbery which was perpetrated, in which £500 in silver, handed to the railway company at Amiens Street, Dublin, late in the afternoon of 18th December, 1929, was stolen that same night while the train was at Gormanston station. The actual thief was Christopher Farnan, but his connection with the matter, although he was suspected shortly after the occurrence, was not established for some time. Early in 1930 he was arrested upon other charges, and the affair at Gormanston was inquired into, but no sufficient evidence appears to have been in the hands of the police. About this time Owen Durnan was asked to state what he knew about the robbery, but he persisted in saying that he knew nothing whatever of the matter, and he was not charged at the time.
Early in June, 1933, Christopher Farnan, who was on remand in Mountjoy Prison on several charges of house breaking, made a statement which he signed in connection with the Gormanston robbery. In this statement Owen Durnan was named as the man who conceived the crime and who gave to Farnan information as to the number of the waggon and the location of the box containing the money.
On 7th June, 1933, Owen Durnan was arrested. He was put on trial at the Dublin Circuit Court and convicted. He appealed to this Court and was not professionally represented. The Court, however, saw that, although the warning which is given when evidence of an accomplice is tendered was fully given to the jury in the case of Farnan’s evidence, the jury were directed that the evidence of Farnan’s wife was sufficient corroboration upon which the jury could safely act if her evidence was accepted. The Court set aside the conviction and directed a new trial, following the decided cases which lay down that evidence given by the wife of an accomplice should be placed before the jury with a warning similar to that given in respect of the evidence of the accomplice himself (1).
At the re-trial Christopher Farnan and his wife again gave evidence and the Circuit Judge placed their evidence before the jury accompanied with a warning which amply met with the requirements of the rule of practice and no exception has been taken to the charge in this respect. The prosecution, however, put forward as corroboration of the evidence of Farnan and his wife certain matters, which the Circuit Judge told the jury amounted to corroboration, and it is this ruling which has been challenged as amounting to misdirection.
It is, perhaps, well to recall that corroboration of the evidence of an accomplice is not essential, unlike the corroboration which in certain instances is required by statute; and, if without any corroboration the jury thought fit to act upon the evidence after being properly warned, the conviction could not be set aside.
Principally the matters relied on were certain occurrences after the accused had been arrested and cautioned. In Store Street barracks he was shown a copy of the statement of Christopher Farnan. After the accused had read it very carefully he was asked by the Inspector whether he wished to make any statement, and he said “No.” The Circuit Judge told the jury that the law allowed the statement and the accused’s reply to be given in evidence, and gave as the reason Durnan’s attitude; that when a statement of the kind was made, involving the alleged implication of Durnan in a serious crime, and not merely the implication but stating that Durnan was the cause of the crime, the silence of Durnan and his failure to deny the statement was opento put it no furtherto the interpretation that silence was the silence of guilt. The Circuit Judge then told the jury that, if they interpreted the silence of Durnan in this way, then they had there Durnan himself corroborating Farnan’s story and Mrs. Rose Farnan’s story on which the prosecution sought to rely.
The learned Circuit Judge was correct in saying that the fact that the statement was read, the contents of the statement and the fact that the accused remained silent were by law allowed to be placed before the jury. These points were ruled after much consideration by the House of Lords in R. v. Christie (1). But the learned Law Lords took great care to point out that, although allowed to be given in evidence in this way, the facts contained in the statement were not thereby made evidence. Lord Atkinson in his speech at p. 554 says: “The rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement.”
In the present case no objection was made to the evidence being given, and it is unnecessary to refer to the power which the trial Judge has to refuse to allow evidence to be given if, in his opinion, it is unfairly sought to bring before the jury the contents of a statement which the accused does not accept. Nor need we deal with cases where the evidence concerns the demeanour of an accused which can lead to an inference either of guilt or innocence. But the technical admissibility of the evidence, and the effect of such evidence when given, are entirely different things, and it is the latter part of the Circuit Judge’s direction which has been questioned.
At a stage in the trial later than the evidence as to the statement being read, proof was given of the arrest which preceded the communication of the statement, and we must deal with the case as one in which, prior to the statement being shown to him, the accused had been arrested, charged and cautioned.
The ruling of the learned Circuit Judge would be supported by the decision of the Court of Criminal Appeal in England in R. v. Marks Feigenbaum (1), unless some distinction can be drawn between that case and the present. The accused in that case had been convicted of inciting boys to steal and the boys gave evidence incriminating him. As accomplices, however, their evidence was supported by corroboration of this nature:When the police constable went to arrest Feigenbaum he told the latter that the boys had made statements, the gist of which he gave to the accused, and the accused made no reply. Darling J., giving the judgment of the Court, said:”The deputy chairman quite properly pointed out to the jury that the failure of the appellant to make any reply to the statement of the police officer might, having regard to the nature of the statement and to the circumstances in which it was made, be considered as being a corroboration of the boys’ evidence; that it was for the jury to consider whether in their opinion it did, or did not, amount to corroboration.”
On behalf of the applicant it is argued that this ruling is not applicable in the case of a person who has been charged and cautioned. The prosecution, on the other hand, admit, in accordance with R. v. Tate (2), that silence of an accused when charged is not corroboration, but they contend that, when a statement giving particulars of the facts alleged is made, omission to deny the statement can reasonably be treated as a proof of guilt. Reliance in support of this view was sought in R. v. Cramp (1), and also in R. v.Thompson (2).
In order to decide between these conflicting arguments we think that it is helpful to bear in mind the substance and effect of the caution usually given at the time of arrest. The evidence in the case is that Durnan was cautioned but no specific details are given: we must, however, assume that the caution was a proper one. The proper caution will bring home to the mind of the accused when he has been charged that he need not make any statement; but, on the other hand, that, if he does volunteer a statement, it may be used in evidence at his trial. This caution enshrines the result of long experience and it is no idle formula. The first part in substance warns the accused that on an occasion when it might reasonably be expected that some answer should be made the law does not require any answer; while the second part of the caution warns the accused that if he makes any statement it should be no glib or untrue excuse, and, further, it being a principle that the prosecution must prove the guilt of the accused, it gives a warning that admissions made at the time may be used to prove the guilt of the accused.
After such a caution we are of opinion that an accused is not bound to make a statement in reply, even to particulars of the crime charged, or to the evidence in support of it, with which he may be made acquainted.
In a recent case in this Court, Attorney-General v. Fleming (3)the Court referred to two recent cases: R. v. Naylor (4) and R. v. Whitehead (5), and FitzGibbon J., who read the judgment of the Court, said at p. 186:”The demeanour of the prisoner when charged, or any statement actually made by him, might be the subject of comment by the prosecution, but it would not be lawful for the prosecutor to comment adversely upon the fact that the prisoner made no statement at all, or simply asserted his innocence. Just as under the express provisions of the Criminal Justice Act, 1925, so under the provisions of the common law, mere silence, when the accused person is told that he is not bound to say anything but that anything he does say may be used against him, cannot be tortured into an admission of guilt.” We are of opinion that this principle applies to the facts of the present case inasmuch as once the caution has been administered no proper distinction can be made between silence in answer to a charge and silence in answer to details and particulars of evidence supporting the charge.
We do not think it right in the circumstances to go into any detailed examination of the further facts in the case. Counsel for the prosecution contended that apart from the matters already dealt with there was in the case abundant evidence amounting to corroboration, and he asked us to say that there had been no miscarriage of justice. We have considered this matter with care but have come to the conclusion that so much importance was attached to the silence of the accused, both in the cross-examination of the accused and in the Judge’s charge, that we do not feel in a position to say that the jury would have arrived at the verdict which they did quite apart from this topic.
We are of opinion that the conviction must be set aside and a new trial directed.
Dental Board v. O’Callaghan
Bulter J. [1969] IR 181
BUTLER J. :
31 Jan.
This appeal by way of Case Stated is taken by the Dental Board against the dismissal by District Justice Dunleavey of a complaint alleging that the respondent, Mr. O’Callaghan, had practised dentistry without being a registered dentist within the meaning of the Dentists Act, 1928, contrary to s. 45 of the Act. The Act of 1928 was passed to provide for the registration and control of persons practising dentistry. To this end it established the Dental Board whose functions include the preparation and maintenance of the Register of Dentists. Registration is confined to persons who are suitably qualified under the terms of the Act. Only persons whose names are entered in the Register are entitled to practise dentistry or dental surgery. The Board is empowered to prosecute offences under the Act.
The respondent in these proceedings is not registered. He is a dental mechanic who, in the normal way, would be employed by a dentist to carry out work in a dental workshop, principally work connected with the making and repairing of artificial teeth. The case against the respondent depended upon the evidence of a Mr. Patrick Derivan who was employed by the Board as an inspector or investigator. In this instance he had been specifically directed by the Board’s solicitor, and I quote from the Case Stated,”to investigate the conduct of the defendant in respect of alleged illegal practice of dentistry”. The method of investigation was left to his own discretion. The method he adopted was to wear a set of upper dentures which was loose and which had teeth missing, to show it to the respondent and to ask him to provide him with a replacement set. He went on to give evidence that the respondent agreed to do this and asked him to accompany him to the respondent’s workshop. The respondent there took an impression of the witness’s mouth and some days later fitted him with a set of dentures for which the witness paid £2 10s. 0d.
It is conceded that what the respondent is alleged to have done is the practice of dentistry within the meaning of the Act and that, if he in fact did it, he was guilty of the offence charged. The learned District Justice has stated that he refused to accept and act upon the evidence of Mr. Derivan. He took the view that, in the circumstances described by Mr. Derivan, the latter induced and assisted in the commission of the offence and that, in doing so, he was an accomplice. The District Justice went on to state that in his view it was well-settled law that the uncorroborated evidence of an accomplice was unreliable and he held that he would not find the respondent guilty of a criminal offence in the absence of corroboration. Accordingly, he dismissed the case. The question raised in the Case Stated is whether his determination was correct in point of law.
The learned District Justice, of course, is perfectly entitled to take any view he thinks fit of the credibility and reliability of any witness of fact who gives evidence before him, after consideration of the evidence and the manner in which it is given. It is, however, clear that in this case he made no such evaluation of Mr. Derivan’s evidence. He has simply held that, because the witness was an accomplice, as a matter of law his evidence should not be accepted and acted upon in the absence of corroboration.
While the main question raised in the Case Stated is whether the evidence of Mr. Derivan was to be treated as the evidence of an accomplice and to be subject to the rule regarding corroboration in such cases, I think it is first necessary to state that, even if it were, the approach of the learned District Justice in rejecting it out of hand on that account is not strictly correct. There is no rule of law to the effect that the uncorroborated evidence of an accomplice must be rejected. The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may act upon the evidence and convict.
Counsel for the Board has submitted that on the facts in this case the actions of Mr. Derivan did not in any event make him an accomplice. I must, however, for the purpose of this Case Stated, accept the view of the learned District Justice that Mr. Derivan was an accomplice. The fundamental reason for not acting on the evidence of an accomplice is that it may be untrue and that, to guard against this possibility, it should be corroborated. The danger is that in order to minimise or excuse his role in a crime or to obtain more favourable treatment, an accomplice may fabricate evidence to implicate the accused. In other words, that for reasons of self-interest an accomplice may lie. The question as to whether the evidence of a spy or agent provocateur, if his actions amount to those of an accomplice, requires to be corroborated has not been decided in Ireland in any reported
case. Counsel for the Board has referred to R. v. Mullins 1 and to R. v. Bickley 2 which, together with R. v. Heuser 3, have been followed in the recent case of Sneddon v. Stevenson. 4 In this last case, after referring to those cases, Lord Parker C.J. says at p. 1056 of the report:”It seems to me that on a true reading of those cases it can be stated that though a police officer acting as a spy may be said in a general sense to be an accomplice in the offence, yet if he is merely partaking in the offence for the purpose of getting evidence, he is not an accomplice who requires to be corroborated.” And Waller J. says at p. 1058 of the report:”. . . it seems to me that where a police officer is engaged in obtaining evidence and is thereby, perhaps, participating in the offence, the circumstances are entirely different from that of the true accomplice, being somebody who was intending to carry out an important part in the offence. The reason why the latter ought to be corroborated is that he may have a number of mixed motives when he comes to give evidence, for example, that he will be treated more leniently or something of that sort, and it is for that kind of reason that the court has always thought it necessary to give a warning that corroboration should be looked for. In the case of the police officer, those considerations do not apply at all, and it seems to me that, even if he may be participating, that is why no warning about corroboration is required in the case of his evidence.”
It appears to me that the principle stated in these decisions is correct and that the reasons which have led to the requirement as to corroboration in the case of a true accomplice do not apply in the case of a person acting in the course of his duty for the purpose of obtaining evidence of an illegal transaction.
Counsel for the respondent has submitted that, even accepting the correctness of the English decisions, the principle ought not to be extended to persons other than police officers. I do not think it can be so limited. Undoubtedly the principle must be applied with discretion and should not be extended to persons acting for merely private as opposed to public interest, but where a witness is employed by an official body to secure evidence of the commission of an offence which it is the duty of that body to investigate with a view to prosecution, I think his evidence is not to be treated as the evidence of an accomplice which needs corroboration. In the present case the Board is a body established by statute to regulate and control an important professional
service. The Oireachtas has thought fit to make it an offence for an unqualified person to provide dental treatment and has empowered the Board to prosecute such offence. Clearly it is also charged with the duty of prevention and detection and I cannot see why its agents in that regard should be treated any differently from police officers who are likewise engaged in the detection and prosecution of other crimes.
Counsel for the respondent has also referred to certain strictures which have been levelled by the courts in England against police officers being parties to offences as agents provocateurs and in particular to the observation of Lord Goddard in Brannan v.Peek. 5 However, as was pointed out by Lord Parker C.J. again in Sneddon v. Stevenson 6 at p. 1056 of the report, the methods used by the police for obtaining evidence in the former case were not a ground for quashing the conviction. Lord Goddard himself in the later case of Browning v. J. W. H. Watson (Rochester) Ltd. 7 decided that the magistrates should act on the evidence of agents provocateurs (in that case officials of the Ministry of Transport) establishing an offence, but that they might mark their disapproval of the methods used when considering the question of penalty. He said at p. 1177 of the report:”No court in England has ever liked action by what are generally called agents provocateurs, resulting in the imposition of criminal liability. We are often told that unless such action is allowed breaches of the law cannot be detected. But Parliament can if it sees fit, make provisions to meet that state of affairs. We must hold that . . . an offence was committed. We need only remind the justices that it is possible for them to grant an absolute discharge, and it is not even necessary for them when doing so to order payment of costs.”
In the present case I have been told by counsel that the Board dislikes using methods such as those employed by Mr. Derivan but that the private and clandestine nature of these transactions makes it difficult otherwise to obtain sufficient evidence to secure a conviction. This I can appreciate. No doubt action of this sort is distasteful and it is proper for the courts to ensure that it is only used where it is necessary. Where, however, as in this case, it is genuinely thought by those in authority that it is necessary having regard to the nature of the offence and the circumstances of its commission, the evidence thus obtained should be accepted and evaluated on its own merits without
requiring as a matter of law that it should be corroborated.
The question in the Case Stated will be answered “No” and the Case will be remitted to the District Justice to
The People (Attorney General) v. Shaw.
[1960] IR
Maguire C.J. 168
Court of Criminal Appeal.
MAGUIRE C.J. :
21 Jan.
The applicant was tried before Mr. Justice Teevan and a jury at the Central Criminal Court on an indictment containing eleven counts. He was found not guilty by direction of the trial Judge on six of these counts, was acquitted by the jury on one count and convicted on the other four counts.
The first count upon which he was convicted was no. 4 of the indictment which charged him with larceny of a number of articles, the property of one, Patrick Costello. The trial Judge sentenced him on this count to three years’ penal servitude. The other three counts on which he was convicted charged him with receiving stolen goods on different dates. The sentence in each of these cases was similar to that on the fourth count.
He now applies to this Court for leave to appeal against his conviction on a number of grounds. The first ground is that the trial Judge failed to give sufficient direction as to the danger of convicting on the uncorroborated evidence of an accomplice. An examination of the learned Judge’s charge satisfies this Court that this ground of appeal has not been established. In the view of the Court the learned trial Judge gave adequate direction as to the danger of acting upon the unconfirmed testimony of an accomplice. The next ground is that the trial Judge failed to distinguish between the counts in the indictment in respect of which corroborative evidence was tendered and those in which there was no corroboration of the accomplice’s evidence. It is clear that as regards count no. 4 there was evidence which, if accepted by the jury, could be treated by them as corroboration of the charge in that count, while as regards counts nos. 7 and 9 there was no such evidence. It is submitted by Mr. O’Hanlon that a trial judge is required where there is an absence of corroborative evidence so to inform the jury. In support of this contention he relies upon the following passage in the judgment of Sullivan C.J. in The People (Attorney General) v. Williams (1):”But in all cases in which there is no corroboration of the girl’s evidence the attention of the jury should be directed to that fact, and they should be told that they should weigh her evidence with great care before they decide to convict.”That case was a case of unlawful carnal knowledge but in the view of this Court this rule applies in a case such as this depending upon accomplice’s testimony. Mr. Breathnach points to the passage in the trial Judge’s charge in which, having given the proper warning as regards the danger of acting upon the evidence of the witness, Young, he goes on to say:”Then if you do that and you find there is corroboration your plain duty is to convict on such counts as you find there was corroborative evidence. In the other counts if you find there is lacking that corroboration that I speak of you have to receive with great care the evidence of Patrick Young. You will have to approach it on the basis that it would be dangerous to convict on that evidence alone.” It is true that in this passage the learned Judge indicates to the jury that certain of the counts may lack corroboration, but in the view of this Court in the circumstances of this case the failure to indicate to the jury that there was no evidence which could amount to corroboration in regard to counts nos. 7 and 9 amounts to a misdirection. There is the further misdirection with regard to count no. 9 that the learned Judge wrongly told the jury that there was evidence that the typewriter with which the count was concerned was stolen. Apart from Young’s evidence there was no such evidence. Accordingly, in the view of this Court the convictions on both these counts must be set aside.
As regards count no. 4 there clearly was evidence which, if accepted by the jury, would amount to corroboration. This Court sees no ground for interfering with the conviction on this count.
As regards count no. 11, which is a count for receiving a portable typewriter, there was the evidence that the applicant sold it to Mr. Gorman within a few days of its being stolen. In the absence of any explanation whatever by the accused as to how he came to possess the typewriter the jury were, if they accepted the evidence, entitled, in our opinion, to treat it as corroboration of Young’s evidence.
Another ground of objection is that although he gave a direction on count no. 1 the learned Judge told the jury”that the evidence on it may be of assistance in deciding other counts.” The evidence in support of this count referred also to the discovery, in the boot of the car in which the applicant and Young had travelled, the wheel which was stolen from Mr. McDermott’s van, which had been parked outside his public house, which was the subject of count no. 2. It was proper for the jury to have regard to this incident in considering that count even though the first count had been withdrawn from their consideration. None of the other grounds argued has been established.
In view of the conclusion which the Court has reached that the convictions on counts nos. 7 and 9 cannot stand, leave to appeal will be granted and the conviction on these counts set aside. The appeal, however, is dismissed as regards the convictions on counts nos. 4 and 11.
The People (Attorney General) v. Casey (No. 2).
Kingsmill Moore J. [1963] IR 33
Supreme Court.
KINGSMILL MOORE J. :
On the 20th September, 1959, two five-year-old boys were very seriously assaulted at about 8.45 p.m. in a field in the hinterland of Dun Laoghaire. The prisoner, Dominic Casey, was tried and convicted on a number of charges arising out of these assaults. He applied to the Court of Criminal Appeal for leave to appeal against his conviction. His defence at the trial was that the identification of him by two witnesses, who alleged that they had seen him at places and times which would have permitted him to have committed the crime and in circumstances of suspicion, was erroneous. He gave an account of his movements on the night of the crime which, if true, would show that he could not have committed it, but which was not supported in any vital particular by other witnesses. On the appeal he alleged by his counsel that the trial Judge had failed to warn the jury of the dangers of mistake in visual identification and maintained that it was now a rule of judicial practice that some such warning should be given.
The Court of Criminal Appeal refused leave to appeal against the conviction, the concluding paragraph in the judgment of the Court being as follows:”Fully alive to the possibility of error in visual identification and to the advisability of drawing the attention of juries, where appropriate, to this possibility, this Court has carefully considered the charge of the learned trial Judge in this case, and, in view of the great care and accuracy with which in turn he drew the attention of the jury to every element which might reasonably be suggested to affect the purported identification of this applicant by John Mooney and by Richard Nohl in particular, this Court is satisfied that the jury could not have been left under any misapprehension as to the manner in which they should consider the evidence notwithstanding the fact that they were not told expressly in general terms of the necessity of exercising care in a case of this kind. The applicant has therefore failed to make out the ground relied on.”
The Court nevertheless granted a certificate under s. 29 of the Courts of Justice Act, 1924, certifying that their decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.
The point of law was not specified, but it is agreed that what was involved was the necessity of a general warning or direction being given to the jury by the trial judge as to the dangers inherent in accepting evidence of visual identification where a finding as to the guilt or innocence of the accused depended on such identification being accepted as correct.
In an earlier case ( The People (Attorney General) v. Casey (1))the judgment of the Court of Criminal Appeal contained the following passage (at p. 280):”It remains to say that the sweeping arguments . . . concerning what is termed, rather unsatisfactorily, ‘visual identification’ are not accepted. There is no authority for the proposition advanced, which, if correct, would amount to pronouncing that every instance of identification of an accused person by sight must be accompanied by warnings of danger.”
The certificate given in this case by the Court of Criminal Appeal, in effect, refers to the Supreme Court the question whether the view expressed in the earlier case is correct and, if not correct, in what circumstances and to what extent it is necessary to direct juries as to the dangers inherent in visual identification.
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. There is unfortunately no record of the number of cases where a witness purported to identify as the offender a person who was present at an identification parade merely to make up the requisite number of the parade, nor can we know in how many cases a person may have been convicted on an erroneous identification which there was no method of proving to be erroneous. Recent judicial utterances reveal an increasing awareness of the potentialities of error in visual identification, however honest, however convinced, and convictions have been set aside on the production of fresh evidence casting doubt on the identification: R. v. Ashman (1); R. v. Harrigan (2); R. v. Williams (3); R. v. Parks (4).
The necessity of giving a special direction where identification rests on the evidence of only one witness has already been judicially recognised. Thus in The People (Attorney General) v. Francis Hughes (5) Maguire C.J., giving the judgment of the Court of Criminal Appeal, said:”Nevertheless, having regard to the circumstances that the case depended upon the identification of the applicant by one witness and that the accused was not professionally represented at the trial, this Court is of opinion that the greatest care was required in charging the jury, as to the way in which they should approach the case and particularly of the dangers inherent in evidence of visual identication.”
In The People v. Keffard (unreported) Mr. Justice Kenny, giving the judgment of the Court of Criminal Appeal, said, in reference to the possibility that the jury had convicted on the evidence of one identification witness:”If they were entitled to do so this Court is satisfied that they could have done so only when they had been warned in the most specific terms of the dangers involved in visual identification . . . There have been so many instances of mistakes in visual identification, and the possibilities of error in this type of evidence are so numerous, that the jury should be directed on the necessity of exercising care in all cases where the visual identification is that of one witness only.” The Court set aside the conviction because the evidence of identification was presented to the jury as a ground upon which they were entitled to convict the accused, without any reference to the caution with which they should regard such evidence.
Mr. Sorahan was also able to refer to the investigations and opinions of distinguished academic authorities which expressed apprehension as to the reliability of visual identification. He referred in particular to Glanville Williams’ Proof of Guilt (2nd ed., 1958, at pp. 99-115).
We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade. In our opinion it is desirable that in all cases, where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution. Nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identifications. 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.
In the case which has been referred to us a finding of the guilt of the accused depends substantially if not entirely on the acceptance of the identification by two witnesses, neither of whom had any previous acquaintance with the prisoner. One was a boy aged eleven at the date of the occurrence. The other had only a momentary view in the light of the headlamps of his motor-car. The trial Judge put fairly to the jury the particular considerations against accepting the identifications, but did not give them the general warning which we think necessary. The particular considerations would undoubtedly gain added emphasis and importance when seen against the background of the general warning. As no such warning was given the Court is of opinion that there should be a new trial
The People (D.P.P.) v. McGinley
Finlay C.J.
[1987] IR 340
C.C.A.
Finlay C.J.
25th May 1987
This is an appeal against a conviction for the larceny of cattle at the Dublin Circuit Criminal Court and a sentence of ten years’ imprisonment imposed on such conviction. The appeal was heard by this court on the 23rd February, 1987, and was put back into the list, at the request of the court, for further argument on one issue of law on the 23rd March, 1987. On this latter day the court announced that its decision was that the appeal should be allowed and a new trial ordered. The court is now stating its reasons for that decision.
Although a number of grounds of appeal were lodged, only three grounds were submitted with regard to the appeal against conviction. The first of those was that there was a basic unfairness of procedure in that both with regard to the results of certain forensic tests carried out by the authorities and with regard to the evidence of certain Garda witnesses and of one civilian, named Mark Kelleghan, the prosecution had failed to reveal to the defence prior to the trial the complete evidence which was available from these witnesses and in effect that the statements of evidence contained in the book of evidence served on the appellant were inadequate and contained serious omissions to the disadvantage of the appellant.
The court is satisfied that there was an inadequacy in the book of evidence and that there would not appear to be any justification for some of the matters which were omitted or excluded from it. It is clear, however, from a consideration of the transcript that these omissions or exclusions were discovered during the course of the trial and counsel on behalf of the appellant made what was clearly extremely effective use of the non-disclosure and brought out all the points which could have been of assistance to his client in respect of that procedure. In these circumstances the court is satisfied that these omissions and exclusions did not constitute an unfair procedure, nor did they make the trial unsatisfactory.
The second ground of appeal argued was that the case was one which very largely depended upon the evidence of an accomplice and the learned trial judge’s charge on the approach which was necessary for the jury to make in assessing the evidence of an accomplice was inadequate and insufficient in its warning. The court rejects this ground also. The learned trial judge in the course of his charge to the jury stated as follows:”
“The law provides that the trial judge must warn you of the dangers of convicting on the uncorroborated evidence of an accomplice. You are entitled to convict on the evidence of an accomplice, but if you so decide you must bear in mind that there are dangers and you must bear in mind the warning which I am about to give you. Because of the fact that there is complicity in the crime and that Mark Kelleghan in this case had something to gain by giving this evidence from the time of his arrest onwards, you must treat that evidence with suspicion. That is a danger that lies in convicting on uncorroborated evidence of an accomplice. The object of corroboration in dealing with the evidence of an accomplice is to indicate to you that, although the particular witness is believed, experiences in the courts have shown that it is unsafe to act on the evidence of an accomplice alone, unless it is confirmed by other evidence implicating the accused in the crime. So, you have to look to see if there is corroboration. You should look to see if there is corroboration by evidence independent of the evidence of Mark Kelleghan. Corroboration is independent testimony which affects the accused by connecting or tending to connect him with the crime, something independent of the evidence of Mark Kelleghan.”
The court is satisfied that this is a full, complete and extremely correct direction to a jury with regard to how it should approach the evidence of an accomplice and that the jury was accordingly on the facts of this case properly instructed with regard to the legal principles applicable.
The third ground, and the one on which this appeal was allowed, was a submission that counsel on behalf of the appellant in cross-examining Mark Kelleghan was incorrectly prohibited by the learned trial judge from pursuing in cross-examination and/or from adducing evidence to establish the circumstances arising from the prosecution of Mark Kelleghan in respect of the offences charged against the appellant, and in particular the plea made on his behalf and the reasons stated by the judge who tried that case for the imposition of a suspensory sentence on him.
As has already been indicated in this judgment the evidence against the appellant in all but one of the counts in the indictment against him was exclusively the evidence of Mark Kelleghan, an admitted accomplice in the commission of the crimes charged. In the other case in which the appellant was convicted, evidence which the learned trial judge ruled was capable of being construed as corroborative of the evidence of Mark Kelleghan was given by the members of the Garda Siouan. This court is satisfied that the learned trial judge was correct in holding such evidence capable of being interpreted as corroborative evidence.
Under these circumstances, quite clearly the credibility of Mark Kelleghan was of prime importance in the entire case. He had in a different Circuit pleaded guilty to the crimes and had received a suspended sentence. Counsel on behalf of the appellant in this case sought to cross-examine him as to the nature of the plea made on his behalf and as to the reasons stated by the judge who had imposed the suspended sentence on him. He did so with the intention of seeking to establish that Mark Kelleghan received a suspensory sentence by reason of an undertaking on his part to co-operate in the prosecution of the appellant.
Unfortunately, the issues thus raised are somewhat confused on the transcript insofar as counsel on behalf of the appellant in the first instance sought to put to the witness the contents of a newspaper report of his plea of guilty. Such was quite obviously wholly inadmissible and could not constitute proof of anything. The learned trial judge, however, appears to have ruled then, not only correctly that the newspaper could not be adduced in evidence in any way, but also that the only evidence which he would permit to be adduced as to the circumstances surrounding the imposition of the suspended sentence was the official transcript of the trial. This court is satisfied that an official transcript of a criminal trial does not prove itself except for its exclusive statutory purpose of being the foundation for proceedings before this court. Furthermore, the learned trial judge at a somewhat later stage in the trial appears to have refused a specific application on behalf of the appellant, when Mark Kelleghan asserted that he could not remember what was said on the occasion of his being sentenced, to call a member of the Garda Siochana who was present on that occasion, to give evidence of what was said.
It would appear that the reason why these various decisions were reached was largely on the basis that the questions being asked of Mark Kelleghan were questions as to his credit and that counsel was bound by his answers and could not adduce affirmative evidence to contradict them. It does not appear from the transcript that counsel on behalf of the appellant at any stage sought to exempt the line of questioning which he was seeking to pursue or the evidence which he was tendering from that general principle on any specific ground. This may well have led to the rulings that were made.
However, the court is satisfied that the line of questioning which it was sought to pursue with the witness Mark Kelleghan by counsel for the appellant must fall within the general category of questioning seeking to lead to the establishing of partiality, bias or improper motive on the part of the witness, as distinct from a general assertion of lack of credit. As such, on the authorities, the court is satisfied that counsel was entitled to cross-examine the witness Kelleghan in considerable detail as to his motives and as to what was said at his trial which would tend to establish what those motives were. In doing so, however, counsel was not entitled to use a newspaper report of the trial in such a way as to suggest to the jury that his questions were based on the report. If the witness accepted the veracity of the facts put to him, then no further proof of them is required. If, however, the witness denied them or said that he could not remember them then, upon establishing in the absence of the jury to the satisfaction of the trial judge that the evidence sought to be adduced would tend to show partiality or bias, the appellant was entitled to lead such evidence.
The court accepts with approval the manner in which this question is dealt with in Phipson on Evidence, 12th ed., at para. 1608, where it refers to bias or partiality as one of the exceptions to the general rule prohibiting contradiction of collateral matters in the following fashion (footnotes omitted):”
“Facts showing that the witness is biased or partial in relation to the parties or the cause may be elicited on cross-examination; or, if denied, independently proved; e.g. that a female witness is the kept mistress of the party calling her, or that the witness had suborned false witnesses against the opposite party, or has had quarrels with, or expressed hostility towards, him. So, the fact that the witness has accepted a bribe to testify may, if denied, be proved, though a previous admission by the witness that he had been offered a bribe cannot, and a denial by the accused’s daughters that they had been ‘schooled’ by their mother to give evidence against him upon a charge of incest will render admissible evidence to the contrary.”
The court has no way of knowing what the effect of the evidence sought to be introduced on behalf of the appellant would have been, or whether there was anything stated at the trial of Mark Kelleghan from which a jury could reasonably infer that part of his motive for giving evidence incriminating the appellant was in compliance with or as a return for the sentence imposed on him. If however that inference could be drawn from the evidence which was being tendered, then it would clearly constitute a form of bribe and, if denied, positive evidence with regard to it could have been adduced. It is clear, of course, that the best evidence of what was stated on a particular occasion in court is the oral evidence of some person who was present, heard what was stated and can say so.
It was for this reason, and lest a possible injustice could have occurred as the result of the rulings on this issue, that the court decided that a new trial should be ordered.
The People (D.P.P.) v. Murtagh
Costello J. [1990] IR 339
C.C.A.
In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the Court of Criminal Appeal was delivered by one of the members of the Court.
Costello J.
27th July 1989
The appellant was charged in the Dublin Circuit Court with charges of perjury (count 1), subornation of perjury (count 2) and of an attempt to pervert the course of justice (count 3). The jury disagreed on count 1 but found him guilty of the charges contained in counts 2 and 3 and on 1st April, 1987, he was sentenced to 2 years imprisonment in respect of each count, the sentences to run concurrently. Leave to appeal was granted by this Court on 4th May, 1987, and the appellant was admitted to bail.
The facts which gave rise to the charges against the appellant can be briefly stated as follows. On the evening of the 20th June the appellant was observed by members of the Garda Siochana coming out of a licensed premises in Swords and getting into his car. Later he was arrested at Seatown Terrace in Swords, brought across the road, put into a police car and brought to Swords garda station. He was charged with drunken driving and subsequently convicted. This Court is not concerned with this conviction but with the circumstances of the arrest and subsequent detention and what happened thereafter. The appellant alleged that he was assaulted whilst being taken across the road at Seatown Terrace and later in the Swords garda station and as a result of his complaints summonses were issued by the Director of Public Prosecutions against a number of gardaÃ, including a Garda O’Sullivan. The summons against Garda O’Sullivan was heard in the Swords District Court on 17th July, 1984, and dismissed. The charge of perjury arises from the evidence the appellant gave at that trial. The charges of subornation of perjury and attempting to pervert the course of justice arise from the role of a Mrs. Sylvia Dunne in the prosecution against Garda O’Sullivan. The charge in count 2 alleged that the accused had between 15th and 17th July, 1984, (that is, just before Garda O’Sullivan’s trial) suborned Mrs. Dunne to commit perjury at the trial and the charge in count 3 alleged that on or about the 19th October, 1983, he attempted to pervert the course of justice by inciting Mrs. Dunne to make a false statement to the gardaà to the effect that Garda O’Sullivan had assaulted him at Seatown Terrace at the time of his arrest.
The evidence for the prosecution at the appellant’s trial consisted of garda witnesses who denied any assault on the accused, medical evidence concerning the appellant’s physical condition on the night of his arrest and the day following, and the evidence, crucial to the prosecution case on counts 2 and 3, of Mrs. Dunne. She swore that the statement she had made to the gardaà on or about 19th October, 1983, in which she stated that she had seen the appellant assaulted was false, that the evidence she gave on the trial of Garda O’Sullivan was false, that she had been requested by the appellant to make the statement of the 19th October, and that he, shortly before the trial, had urged her to give evidence in accordance with it. The appellant gave no evidence at his trial.
The Court granted the appellant leave to amend the grounds of appeal to permit arguments to be advanced relating to the failure of the trial judge to accede to counsel’s requisitions at the trial. It also heard submissions on a point which the Court itself raised, namely whether Mrs. Dunne could properly be regarded as an accomplice of the accused on either count 2 or count 3 and if so the effect of the failure of the trial judge to give the jury the required warning on the dangers of convicting on the evidence of an accomplice.
As the Court has come to the conclusion that Mrs. Dunne was as a matter of law an accomplice in respect of the charge in counts 2 and 3 and that it would be unsafe to allow the conviction on that count to stand, it does not consider it necessary to consider at any length the other points that were canvassed in the course of this appeal.
If, as alleged by the prosecution, the accused had incited Mrs. Dunne to commit perjury at the trial of 17th July, 1984, then by giving perjured evidence she was an accomplice to the crime with which the accused was charged, subornation of perjury contrary to common law for the perjurer is an accomplice of the suborner.
The learned trial judge did not point this out to the jury and did not give them the warning which the law requires a trial judge to give in such circumstances. The court cannot speculate as to what the jury would have done had the warning been given and its absence renders the conviction unsafe.
With regard to count 3, the prosecution case was that the accused had committed the common law offence of attempting to pervert the course of justice when sometime before the 19th October, 1983, he incited Mrs. Dunne to make a false statement to the gardaà to the effect that a member of the gardaà had assaulted him. Such an offence is completed when the words of incitement are uttered, and so the offence is committed even though the incitement fails. In going to the gardaà Mrs. Dunne allowed herself to be incited and (assuming the prosecution case to be correct) herself committed the crime of perverting the course of justice by making a false allegation of assault. But, in the Court’s view she was an accomplice to the accused’s alleged offence also when she made the false charge (had she not done so she could not have been implicated in the accused’s alleged crime) and a warning on the dangers of convicting the accused on her evidence in respect of count 3 should also have been given. In its absence, the conviction cannot stand.
Both convictions will therefore be quashed and a new trial ordered in respect of the charges on counts 2 and 3.
The People v Hogan
[1994] 2 ILRM 74 O’Flaherty J
The applicant, Brendan Hogan, applies for leave to appeal against his conviction on counts of robbery of a sum of money from Mrs Susan Sheehy, the possession of a firearm with intent to rob and false imprisonment. The applicant was convicted on 29 July 1992 after a three-day trial held at the Dublin Circuit Criminal Court before His Honour Judge Esmond Smyth and a jury and was sentenced to concurrent terms of seven years’ imprisonment (the final year being suspended in each case). In addition, he was convicted on a count alleging common assault for which he received a sentence of two years’ imprisonment. The verdicts of the jury were reached by a majority in each case.
The background to the case may be thus summarised. On 22 February 1991 Mrs Susan Sheehy was carrying out rate-collecting duties in the area of Toomevara, County Tipperary. Between 6 p.m. and 6.45 p.m. she was about to get into her motor car in the village of Toomevara when she was held up by Declan Reidy who was masked and had a hand gun and who forced her to drive the car to the region of nearby Lateragh Forest. There they were joined by another man, Damien Kennedy. He wore a fancy, halloween-type mask. Mrs Sheehy was then forced to drive a further distance to a sandpit in the same forest region. There she was robbed of some £627 in cash and was left in the back of the car with her hands tied with twine. Shortly afterwards the lights of a vehicle appeared at the entrance to the sandpit and Reidy and Kennedy made their escape. In due course they were arrested, charged and dealt with on pleas of guilty.
Kennedy gave evidence at the trial of the applicant but Reidy refused to do so. Kennedy implicated the applicant as the chief culprit in the plot to waylay and rob Mrs Sheehy. According to Kennedy, the applicant supplied the gun and the fancy mask as well as the get-away vehicle.
The applicant owned a mini-van with which he provided passenger and other services for people in the Nenagh, County Tipperary area. Nenagh is about six miles from Toomevara. It is common case that all three were together in the mini-van in the forest area before the time of the robbery. It was the State case that the applicant was the driver of the vehicle (his mini-van) that came on the scene at the sandpit after Mrs Sheehy had been robbed of her money.
The applicant’s defence was that while he had been in the company of Reidy and Kennedy before the robbery he said that what they were engaged in was ‘pigeon-spotting’ in the forestry region. The applicant said that he drove back to Toomevara where he parted company with Reidy and Kennedy. He returned on his own to another sandpit (within 200 yards of where Mrs Sheehy ended up) to resume his ‘pigeon-spotting’. This he said was at about 6 p.m. After some time he returned to Toomevara getting there at about 6.30 p.m. and thence he drove to Nenagh to collect people whom he brought to a bingo session.
While Mr Michael Delaney and Miss Majella McGrath gave evidence of seeing the applicant in the company of Reidy and Kennedy in a public house in Nenagh (referred to as Ryan’s public house) at about 7.30 p.m. that evening the applicant denied that they were together at that place and time.
A hand gun and mask stated by Mrs Sheehy to be similar to those used by the robbers were found at the applicant’s house by the gardaí. It was the defence case that Kennedy would have had knowledge of the existence of these items at the applicant’s house.
Mrs Sheehy was not able to identify her assailants and got no sight (except for the headlights) of the vehicle that transported the robbers from the sandpit.
It will be clear that the prosecution case rested on the evidence of an accomplice, Kennedy, and of course it was necessary for the trial judge to give a warning in relation to the dangers attendant on the evidence of such a witness. Mr Greg Murphy SC, who represented the applicant before this Court but who did not appear at the trial, complains that the trial judge’s charge was defective in this regard.
To dispose first of the only other ground of appeal advanced before this Court: it was a complaint that a jacket which was found in the applicant’s mini-van by the gardaí was put in evidence by the prosecution as belonging to Reidy without proper proof that it was Reidy’s. The applicant, when it was shown to him in cross-examination, appeared to accept that it was Reidy’s. Without deciding whether that was sufficient proof of its ownership, since there is no doubt that Reidy was in the applicant’s mini-van on the day in question when according to the applicant they were engaged in the preliminary bout of pigeon-spotting together, it appears that the presence of Reidy’s jacket in the mini-van was of no probative value whatever and so we cannot find that there is made out any stateable ground of prejudice to the accused arising in this regard.
Turning then to the judge’s charge in relation to the evidence of the accomplice, Kennedy, to find out if there is any fault to be found with it, it is necessary to quote what the learned trial judge said. In the first instance he said:
… there is a further aspect of the law which is very important in this case, and which I must carefully warn you about, and that is, in this case, the principal evidence against the accused is Mr Kennedy’s evidence. Mr Kennedy is an alleged accomplice of the accused person and judges must give, and I give you here, and I want you to listen to it very carefully, a warning about convicting on the uncorroborated evidence of an accomplice. The law requires me to say to you that it is very dangerous to convict on the uncorroborated evidence of an accomplice. Nevertheless, if having heard the evidence of the accomplice, you believe his story, you are entitled to convict on it.
Now, the question arises what is corroboration? Now the kind of corroboration which is required is not confirmation by independent evidence of everything which the accomplice has sworn to because his evidence would be entirely unnecessary if that was so. What is required is some independent testimony which affects the accused by tending to connect him with the crime. That is to say evidence, either direct, or circumstantial which implicates the accused, which confirms in some material particular, not only the evidence given by the accomplice that the crime has been committed, but also the evidence that the accused committed it. So that is corroboration. Now, that is corroboration as a matter of law; that is a definition of it. And the State are asking you to accept that in this case the corroboration is the finding of the mask and the gun in the accused’s house, and the evidence of Mr Delaney and Miss McGrath, that between 7.15 p.m. and 7.45 p.m., the accused was seen in the vicinity of Ryan’s pub in Nenagh, because that is a factor which tends to corroborate Mr Kennedy’s version of events. Now, as a matter of law those matters are capable of being corroboration. It is for you though, ladies and gentlemen, to decide as a matter of fact whether they are in fact matters of corroboration.
Having reviewed the evidence and at the close of his charge to the jury, the learned trial judge returned to this topic and said:
So, ladies and gentlemen, to conclude I must warn you again of the dangers of convicting somebody on the uncorroborated evidence of an accomplice. I must also say, however, that there are matters of corroboration which you are entitled to take into account, namely, the finding of the mask, the gun and the evidence of Mr Delaney and Miss McGrath. What weight you give to that evidence is a matter for yourselves. But, even though it is very dangerous to convict on the uncorroborated evidence of an accomplice, if you were satisfied beyond a reasonable doubt that that evidence is correct then you are entitled to, and indeed must convict. But, I will leave you with the final word of warning, which is, remember at all times in this case that Mr Hogan is an innocent man until you find otherwise. He is presumed innocent and the burden of proof on the State never shifts, namely, that you must be satisfied beyond all reasonable doubt of his guilt before or if you convict him.
Mr Murphy takes issue with the use of the word ‘confirm’ in relation to the accomplice’s account in the first extract quoted from the judge’s charge submitting that he should not have given that direction because corroboration is concerned solely with implicating the accused in the crime with which he is charged and not with confirmation of an accomplice’s evidence. He relied on the decision of the Court of Criminal Appeal in People (Attorney General) v. Phelan (1950) 1 Frewen 98.
It is correct to state that the purpose of pointing to the need for corroboration is not to confirm the accomplice’s account but to find whether it implicates the accused in the crime with which he is charged.
The court is satisfied that the learned trial judge’s charge in this regard was as complete as the circumstances of the case required. He warned the jury of the danger of acting on the uncorroborated evidence of an accomplice; he furnished the jury with a full description of what was meant in law by corroboration and correctly laid before them the three matters that were capable of being corroborative of the accused’s evidence making it very clear, nonetheless, that the jury would have to find whether any of them were so capable of affording corroboration of the accomplice’s evidence. The reference to confirmation of the accomplice’s evidence was merely an aside.
Mr Murphy also makes the complaint, although it is not clear whether he submits that this is a fatal defect in the charge, that the judge did not put forward the diverse reasons which may apply to demonstrate why the evidence of an accomplice has to be treated with caution by a jury. They are well summarised in Fennell, The Law of Evidence in Ireland , as follows:
(a) He may wish to shift blame onto the accused in order to minimise his own role;
(b) he may wish to curry favour with the prosecution and indeed may have obtained or wish to obtain leniency in return for such testimony;
(c) the accomplice can of course make his testimony very convincing because of familiarity with the actual details of the act in question;
(d) it is suggested that the accomplice is morally culpable and so inherently suspect.
It is clear from a consideration of the transcript that much was made of the fact that the accomplice, Kennedy, had got a reduction of his sentence on appeal to this Court on the basis that he had co-operated with the gardaí and the point about his likely knowledge of the existence of the gun and the mask in the applicant’s house was also highlighted. It is clear that these matters were greatly stressed by the applicant’s then counsel in the course of the trial both in his cross-examination and, presumably, in his speech to the jury. In the circumstances, while a judge in his charge to the jury may expand on the reasons for the necessity of such a warning in the case of accomplice evidence, it was surely abundantly clear to the jury in this case why the warning was required and the fact that the judge did not expand further on this aspect of Kennedy’s evidence does not render his charge defective. It is significant that the judge was not requisitioned by counsel for the defence to elaborate on his charge regarding the accomplice’s evidence in any respect. On the contrary, it was accepted that he had given a correct direction to the jury as regards corroboration.
We conclude that the judge’s charge was in all respects exemplary as, indeed, was his handling of the case from beginning to end. We cannot find any ground for suggesting that there was any defect in the trial.
Accordingly, the application for leave to appeal is refused.
People (DPP) v Fitzgerald
[2018] IESC 58
udgment of Mr Justice Peter Charleton of Thursday 29th of November 2018
1. This appeal concerns the warning to a jury trying a criminal case that the evidence of an accomplice to a crime is to be treated with particular circumspection because it is dangerous to act on it alone unless corroborated. Experience has shown that an accomplice may put people in the frame as perpetrators of a crime who may not have been involved at all, or may exaggerate the role of a particular accused, perhaps out of the kind of bitterness that typifies relationships within a criminal gang. Hence, where an accomplice gives evidence, the jury trying a person accused of a crime are warned in general terms of that danger. At the trial of Jonathan Fitzgerald for the murder of Noel Crawford in Limerick on 18 December 2006, one witness was made the subject of such a warning by the trial judge but another was not. Both witnesses were in the house to which the accused and others were alleged to have had resort after the murder and from which he and others had set out to the victim’s residence shortly before.
2. At the trial, in the cross-examination of the witness not made subject of an accomplice warning, it was never suggested to her that she was an accomplice, either before or after the fact, to the murder. The issue on appeal, therefore, is whether the accomplice warning is always to be given, even where the point is not relied upon by counsel for the accused. This accused was convicted of murder by a jury in the Central Criminal Court on 7 February 2011 and later sentenced to life imprisonment by White J, the trial judge.
Background
3. In December 2006, Laura Kelly was living in a house in O’Malley Park, a large housing estate in Limerick city, with her partner Jonathan Kiely and four young children. Before retiring for the night on Sunday the 17th of that month, approaching midnight, a phone call came from Raymond Fitzgerald, her nephew. He was asking to come over and stay at the house. He arrived shortly after, accompanied, unexpectedly it seems, by Jonathan Fitzgerald, the accused, and Michael O’Callaghan. All had travelled over to O’Malley Park in a white minibus. Conversation among them was overheard by her about a possible attack on Paul Crawford, who also lived in the estate, with reference to making a petrol bomb, one of them saying “[Expletive] the car, throw it at the house, in the window and when one of them comes out, we’ll get them.” On hearing this from the upstairs part of the house, she shouted to her partner, who kept petrol for his brushes because of his job as a house painter, to throw it away. The accused Jonathan Fitzgerald and Michael O’Callaghan only stayed in the house for about twenty minutes and then left. Her nephew Raymond Fitzgerald remained when they had gone. She had told them that she wanted them “out of my house.” In the back garden, she next saw these two men putting on bulletproof vests. Some little time later, she and her partner heard two shots. Then, shortly after, there was banging on the door. Her nephew opened the door to Michael O’Callaghan and Jonathan Fitzgerald. The latter said: “I got him, I got him, I got Paul Crawford.” In fact, it was Noel Crawford who had been shot dead.
4. Jonathan Fitzgerald, according to her account, was very bloodied and went to the kitchen sink to wash himself. She saw a shotgun on the kitchen table. Michael O’Callaghan was, meanwhile, washing upstairs. Jonathan Fitzgerald took off his clothes and put them into the fireplace to burn them in the fire. She asked them to leave. By this stage, one of the children had woken up. The couple had closed circuit television cameras as a security measure in their house and Michael O’Callaghan, because these would show their comings and goings, asked her to rewind the tape, thus erasing it. Her attitude was “I mean, I had to do it, didn’t I?” She described her state of mind as “[p]anic and my God, like, you know, like, absolute fear.” Thus she claimed to have acted under duress.
5. Meanwhile the clothes were burning in the fire and, on her narrative, there was a great deal of smoke which Michael O’Callaghan said would draw attention to the house. The men drank a Baileys Irish Cream liqueur. Shortly after that, shots were fired at the house and some of the windows came in. Gardaí from the armed response unit then arrived but she would not let them in. She told them that she had been shot at because of some kind of cooperation with them as police officers, not due to the murderous attack that had earlier been carried out. Asked why she said this she said: “I couldn’t; I was told not to … [by] Jonathan Fitz.” She shouted to the gardaí to leave. More of the children had by then woken up. On going upstairs, she found a bullet on top of her daughter in her bed. As she put it “I was absolutely boiling.” She then went downstairs and told the two men to get out. They did not leave and were there when the gardaí returned some hours later in the morning. She described her reaction to the men being in her house as “”What are you doing here …” — you know: “What are you doing here?” I was, like, terrified, like, I didn’t know what to do.”” Her instructions from Jonathan Fitzgerald as to what to say to the gardaí as to any question about the men in her house were “We came up after your window got shot in, right? Do you hear me?” Her reaction she described as feeling “[t]he way anyone would, I suppose. I was afraid that I’d be body number two.”
The Trial
6. While there was other evidence putting the accused in O’Malley Park at around the time of these events, and some relevant mobile telephone records, it is clear that the evidence of Jonathan Kiely and of Laura Kelly regarding conduct consistent with the commission of the murder and of admissions afterwards was a central building block of the prosecution case. As regards Jonathan Kiely, he had given a witness statement to the gardaí, but at the trial he then had claimed to be a drug addict. Consequently, he testified that he had no recollection of anything; not even of ever having been interviewed by detectives. His evidence was admitted by the trial judge through his prior recorded statements under section 16 of the Criminal Justice Act 2006. The jury were played video recordings of his interviews, in addition to written statements by him. The trial judge, in respect of him, warned the jury that when he was arrested in the aftermath of the murder, under section 30 of the Offences Against the State Act 1939, he had been a suspect. Rightly, the trial judge left to the jury the issue of fact as to whether he had been an accomplice of the accused. He warned them to be “very wary of his evidence” and that the jury “should look for corroboration of his testimony.” What that was, the trial judge defined and pointed to the pieces of evidence which the jury might properly regard, if accepted by them, as evidence independent of that witness tending to show that the accused had committed the crime.
7. Counsel for the prosecution, on the day prior to the judge’s charge, had addressed the judge “out of an excess of caution”, and asked that counsel for the defence might “consider this overnight, whether there’s a need for an accomplice warning” pointing out that in their earlier statements to the gardaí “Laura Kelly and Johathan Kiely … might have been accessories after the fact and that might bring into view the accomplice warning”. The defence made no such application either that day or the next or ever. The trial judge decided of his own consideration of the evidence that Jonathan Kiely might be regarded as that of an accomplice “insofar as he was arrested on suspicion of possession of that particular firearm”, referencing the shotgun. In the absence of any defence submission, he did not put to the jury any issue as to whether Laura Kelly might be an accomplice or attach any warning as to that issue.
Court of Appeal judgment and submissions on appeal
8. It is useful to briefly summarise the submissions on each side. For Jonathan Fitzgerald, it is claimed that no matter whether counsel for the defence has put it to a prosecution witness in cross-examination that he or she may have acted in support of the commission of a crime or its later concealment, as an accomplice in other words, once any circumstance gives any possible indication that a witness may be an accomplice, then an accomplice warning should be given by the trial judge to the jury. This, it is contended, is an absolute rule and is not dependent on whether the matter has been raised or put to any witness on the instructions of the accused. Rather, it is argued on behalf of the accused, the duty to control the trial and to give the accomplice warning, being a matter of law, falls to the judge and not to counsel. Rules of law, it is claimed, are not dependent on the adversarial ebb and flow of a trial but, rather, are contended to be constant.
9. For the Director of Public Prosecutions, it is countered that the manner in which defence counsel approach a trial is not to be second-guessed by the trial judge. Rather, the prosecution contention is that since the duty of counsel is to put to a witness such matters as may be argued which tend to undermine that witness’s testimony, it is a matter of professional judgement as to whether an allegation that might give rise to any special warning by the trial judge might be of benefit to the accused. In that regard, counsel is, on the accused’s submissions, acting on instructions. Thus if the factual account of the accused is not to the effect that a witness was an accomplice to the commission of a crime, there is no basis for such an argument being put forward. As a matter of fact, it is contended, any view in retrospect as to whether someone might or might not have been an accomplice is very much secondary to the view taken by counsel on the instructions of the accused at the trial. Here, the view was that one of the witnesses might be an accomplice, that is to say someone in possession of a gun in the aftermath of a murder, whereas, counsel for the prosecution argue, the other witness was not so regarded by the accused Jonathan Fitzgerald and the case was not so run a trial.
10. The judgment of the Court of Criminal Appeal, given on 25 July 2016, by Birmingham, Sheehan and Mahon JJ concurring, was to the effect that the prosecution submissions were correct. Particular emphasis was laid on the dropping of a point at trial and the unsatisfactory nature of a point first being argued on appeal. The nature of the decision emerges from paragraphs 25 to 30 of that court’s judgment:
The real issue in the case arises from the fact that the judge was not requested to give such a warning notwithstanding that the question of whether a warning would be appropriate was specifically raised by the prosecution and the defence were invited to considered their position. At the conclusion of this charge, the judge was requisitioned in respect of a considerable number of matters by the defence. A number of those requisitions related to how the evidence of Ms. Kelly had been dealt with. The trial judge agreed to recharge and he did so in relation to a number of the points raised in relation to Ms. Kelly’s evidence, but none of the requisitions were directed to the issue of an accomplice warning.
The prosecution submit that the appellant should not be permitted to raise the issue of an accomplice warning as it had not been raised by the defence at any stage during the trial, relying in that regard on the case of DPP v Cronin (No.2) [2006] 4 IR 329. Now, it must be acknowledged that the factual background to Cronin was an unusual one. The case involved a fatal shooting in a disco. At trial there was one defence and one defence only which was that Mr. Cronin never had a gun and still less had he fired one in the disco. At no stage, whether by way of evidence by or on behalf of the appellant or by way of submission or by way of cross examination or in any other way was an alternative defence of accidental discharge of the gun raised. Following a change of the legal team, the appellant argued that the trial judge’s charge was deficient in not addressing the issue of accident or mistake and so the possibility of a manslaughter verdict. The Supreme Court ruled that it was only in circumstances where an appellate court was of the view that due to some error or oversight of substance, a fundamental injustice had occurred, should the court allow a point not raised at trial be argued on appeal. In addition, an explanation must be furnished as to why it was not raised at trial.
In this case, there can be no question of the parties and in particular the defence having lost sight of the accomplice issue. The issue was raised by prosecution counsel with a request that the defence consider their position overnight. On the following morning, although there was a debate in the absence of the jury relating to aspects of the ballistics evidence, nothing whatever was said about the desirability of an accomplice warning. This was despite the fact that the judge’s response to counsel the previous evening must have put everyone concerned on notice that the judge felt that there was a distinction to be drawn between the position of Mr. Kiely and Ms. Kelly.
Again, there can be no question of the issue being overlooked as the judge charged the jury. He did give a warning, albeit in modified form in the case of Mr. Kiely and did not do so in the case of Ms. Kelly. In that regard, he was following through on the indications that he had given when the issue was raised with him before the Court rose on day 18. The charge was the subject of detailed requisitions from the defence including a number of requisitions directed to the treatment of the evidence of Ms. Kelly. So, it is abundantly clear that all involved, including the defence, were aware of the fact that the judge had adopted a different approach to the evidence of Ms. Kelly than he did to the evidence of Mr. Kiely and no objection was raised.
In this case, the defence pursued a particular strategy in seeking to undermine the evidence of Ms. Kelly. They did so by suggesting she was currying favour and seeking advantage from the gardaí in respect of transgressions that she had been engaged in. The defence at trial did not by way of evidence, or submission, or cross examination raise the issue of whether she might be regarded as an accomplice. The judge in the course of his charge, while choosing not to address the issue of whether Ms. Kelly was an accomplice and what the significance of that would be, an issue in respect of which the defence had shown no interest whatever, was assiduous in putting before the jury the actual basis for the challenge to Ms. Kelly’s evidence which had been advanced by the defence.
In the Court’s view, the judge cannot be faulted for putting before the jury the actual case presented by the defence and not putting before the jury a case, which while one that was open on the papers, was one in which the defence had shown no interest whatever. It must be recognised that introducing warnings in relation to issues which had not featured at trial can serve to dilute the impact of what is said and to divert attention from the actual case being put forward.
Accomplice evidence
11. Rather than any analysis based on what is not advanced at trial, but which may seem appropriate as an appeal point in its wake, the proper approach on this appeal concerns the responsibility which counsel have as to the limits of their instructions. In that regard, a brief reiteration of the rules as to the accomplice warning may be useful.
12. According to Archbold’s Pleading, Evidence and Practice in Criminal Cases (26th edition, London, 1922), an accomplice is “always a competent witness” and an accessory “is a competent witness against his principal, and the principal against the accessory.” But, the “fact of a witness being an accomplice, accessory, or principal detracts very materially from his credit”; see page 455. In the same passage, the rules for dealing with accomplices are set out in a manner consistent with modern practice:
The uncorroborated evidence of an accomplice is admissible in law : R. v. Atwood , 1 Leach, 464 ; but it has long been the practice at common law for the judge to warn the jury of the dangers of convicting a prisoner on such uncorroborated evidence of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict on such evidence, though at the same time pointing out that it is within their legal province to convicted upon it if they choose. R. v. Stubbs , Dears. 555 : In re Meunier [1894] 2 Q.B. 415. This rule of practice has become virtually a rule of law : R. v. Farler , 8 C. & P. 107 : R. v. Tate [1908] 2 K.B. 680 ; and in the absence of such a warning by the judge the conviction will on appeal be quashed by the Court of Criminal Appeal . R. v. Tate , supra. Where there is a proper caution, in considering whether the conviction should be allowed to stand, the Court of Criminal Appeal will, on appeal, review all the facts of the case, bearing in mind that the jury had the opportunity of hearing and seeing the witnesses, and will quash the conviction if it thinks the verdict unreasonable one that cannot be supported by the evidence. R. v. Baskerville [1916] 2 K.B. 658 ; 86 L.J. (K.B.) 28 ; 25 Cox, C.C. 524 ; 12 Cr. App. R. 81 ; R. v. Bryant , 13 Cr. App. R. 49. Where there is insufficient warning and no corroboration evidence the Court of Criminal Appeal will on appeal quash the conviction. R. v. Norris , 12 Cr. App. R. 156.
The kind of corroboration required is not corroboration by independent evidence of everything the accomplice relates, as his evidence would be unnecessary if that were so. R. v. Mullins , 3 Cox, 526, 531. What is required is some independent testimony which affects the accused by tending to connect him with the crime ; that is, evidence, direct or circumstantial, which implicates the accused, which confirms in some material particular not only the evidence given by the accomplice that the crime has been committed, but also the evidence that the accused committed. R. v. Baskerville , supra.
13. Whenever any issue as to an accomplice warning arises at trial, two matters are usually not in dispute. Firstly, save for the necessarily very delicate issue of consent in sexual violence cases, whether a crime was committed or not is rarely disputed. In sexual violence cases, where consent is an issue, save for those rare cases where it is the identity of the assailant that is in contest, physical marks consistent with a non-consensual encounter can support the testimony of a person complaining of having been assaulted in a sexual manner. In other cases, while the fact of the crime should be proved by the prosecution, the run of the testimony will show that it is rarely contested that the theft of cattle has taken place or that a bank has been robbed or that an unfortunate person was kidnapped. Hence, it is normally unnecessary for corroboration to show that a crime has been committed. Rather, the nature of corroboration is to show a link between the accused and the commission of the crime. Secondly, with the nature of accomplice evidence, it is almost never the case that there is any doubt but that the person giving evidence from within a criminal enterprise had in some way aided the commission of the crime and was going to be subject to the accomplice warning by the trial judge. That kind of situation constitutes the ordinary experience of these kinds of cases.
14. While in this case the actual commission of the crime was not in contention, in the sense that once the pathology evidence had been given, no one doubted or thought to contest that a man had been murdered, there were serious questions as to whether anyone might regard the evidence of Laura Kelly as coming from an accomplice to the crime. The answer to those questions is not a facile one that she was in any way an accomplice.
15. For a start, on her own account she had acted at all times as a mother of young and vulnerable children, one of whom had had a bullet placed on her bed as, it is safe to assume, a threat. Her household was invaded by men intent on violence when the only permission which she had given was for her nephew to sleep there overnight. The rewinding of the closed circuit television tape was by coercive direction of the accused, on her account, and the excuse given to police to leave on the first occasion they called was in the context of the strain which she was under from those two unwelcome visitors whom she had told, on a number of occasions, to leave. In that context, counsel for the defence had the option of pursuing with Laura Kelly such dangerous issues as the truth of her testimony as to threats, in other words whether she acted under coercion, as to seeing men girding themselves with protective armour and of hearing shots and of those men burning clothes and washing off blood in the aftermath of a shooting. Any such line of cross-examination was more than dangerous for the accused to pursue. He chose not to.
16. What was referred to in the 1922 edition of Archbold as a “rule of practice” that judges should warn juries on the dangers of convicting on the uncorroborated evidence of an accomplice has undoubtedly now crystallised into a rule of law; AG v O’Connor (No 2) [1936] Ir Jur Rep 37. In that case, Kennedy CJ stated: “That rule is that a judge is bound … to warn the jury that it is not safe to convict on the uncorroborated evidence of an accomplice.” In Dental Board v O’Callaghan (1969) IR 181 at 184, Butler J stated:
There is no rule of law to the effect that the uncorroborated evidence of an accomplice must be rejected. The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may act upon the evidence and convict.
17. Circumstances will usually make it obvious to everyone in court that an accomplice to a crime is to give evidence. The rules of practice on dealing with accomplices make it clear that this is the case. Thus, the ordinary situation is that where the prosecution seeks to undermine a criminal gang by calling evidence from inside it; for instance see The People (DPP) v Meehan [2006] 3 IR 468. Of its nature, such an exercise will show that the witness proposing to testify against others involved in the crime charged will have more than the usual compulsion of shame and evasion in minimising his or her own involvement. This makes sense. After all, it follows that where one person’s share of criminal complicity is minimised, then, consequently, the involvement of some other participant is likely to be exaggerated. See for example DPP v O’Reilly [2017] IECA 89. It may also be that, given the nature of the exercise, those planning crime meet in secret and operate through concealment, an accomplice can falsely add in an individual at a meeting or allege that he or she supplied a weapon or somehow otherwise acted in order to aid the commission of the crime.
18. Thus, it is in the participation in a crime that the danger arises. In Cosgrave v DPP [2012] IESC 24, Hardiman J analysed the situation thus:
It appears to me that the rationale for the rule requiring a corroboration warning relates, at least in part, to the character of the person who is an accomplice, and not to his precise degree of participation in any particular crime which he alleges. If the character of the witness is an indication for caution in regard to his evidence, that character is a permanent attribute of the witness and does not vary from one part of his statement to the other. Accordingly it appears to me that, once a person has been identified as an accomplice in any crime (or at least any crime arising out of the same sequence of facts of which he gives evidence) he is a witness whose evidence requires a corroboration warning.
19. This decision referred to the origins of the rule and its rationale, from cases such as R v Green (1825) 1 Craw and Dix Circuit Cases 158 at 159, wherein it was stated that corroboration was required: “… because [the accomplice] stands in so degraded a state, from the crimes of which he confesses himself guilty, that but little credit is due to him… unless corroborated in some material circumstances”. The rule as to the accomplice warning and corroboration, however, is related to participation in a crime. Where a witness participates in a crime and later gives evidence against those who are co-participants, he or she by nature is a suspect witness. The necessity to warn the jury, in that regard, comes from the composition of the tribunal of fact, the randomly selected jury of citizens, not being exposed to that of which a judge will be aware, namely the temptations of exaggeration and substitution that are sometimes beyond the normal inclination of a person confronted with their own conduct. The essence of an accomplice is that they have been a participant in the crime with which an accused is charged and to which they are a witness. To participate in a crime requires some act of positive assistance, coupled with the realisation that such assistance will assist in the commission of that crime. Hence, supplying a weapon in the realisation that it will be used for an assault is to participate in an assault. To participate in murder, that weapon has to be supplied with the intent that it be used to cause death or serious injury; section 4 of the Criminal Justice Act 1964. Any lesser state of mind, for instance of simply aiding an assault, however, renders the person an accomplice to that crime. The distinction between felonies and misdemeanours having been abolished, knowing or reckless assistance in the commission of a crime through some act such as providing encouragement or supplying some physical tool that might assist suffices to render someone an accomplice. Section 3 of the Criminal Law Act 1997 provides that the law and practice in relation to misdemeanours is of general application. In that regard, being aware that a crime has been committed but taking steps to ensure the escape of the perpetrators, whether through hiding them or destroying evidence, can draw a person previously innocent into being an accomplice after the fact; in this regard see the speech of Lord Simonds LC in Davies v DPP [1954] AC 378 at 400.
20. Most obviously, a person will be shown to be an accomplice where he or she has been charged with the same offence as the accused. A co-accused is not competent to be called at the behest of the prosecution against a fellow accused. The ordinary practice is for the person proposing to turn State’s evidence to be first tried, or, more usually, to first plead guilty. Thus, prior to him or her being called to give evidence, an accomplice should have been found guilty or have pleaded guilty or the Director of Public Prosecutions should have decided not to charge the accomplice; R v Richardson [1969] 1 QB 299 and R v Conti (1973) 58 Cr App R 387. Insofar as it is possible, it may be desirable that the prosecution should minimise the incentive for an accomplice to damnify the accused and to understate his or her own role. That is why that procedure is desirable. Thus in R v Pipe (1967) 51 Cr App R 17 at 21, Lord Parker LCJ stated:
In the judgment of this court, it is one thing to call for the prosecution an accomplice, a witness whose evidence is suspect, and about whom the jury must be warned in the recognised way. It is quite another to call a man who was not only an accomplice, but is an accomplice against whom proceedings have been brought which have not been concluded. There is in his case an added reason for making his evidence suspect. In the judgment of this court, the well-recognised rule of practice is one which must be observed, and, accordingly, in the circumstances of this case there is no alternative but to quash the conviction.
21. Some authorities go so far as to state that in the event that the practice of disposing of the accomplice and sentencing him or her prior to being called to give evidence against an accused as a fellow participant is not followed, the trial judge has a discretion to exclude the evidence; see May on Criminal Evidence (6th edition, London, 2015) at paragraph 17-13. Sentencing prior to the accomplice being called certainly removes the appearance of control by the prosecution, or the suspicion that might arise of testifying for reward. In R v Turner (1975) 61 Cr App R 67, the defence argued that it had become a practice for judges to not admit accomplice evidence where the accomplice still had ongoing proceedings in respect of them, and that Pipe was a rule of law. The court rejected this, with Lawton LJ stating at pages 78-79:
There is nothing either in the arguments or the judgment itself to indicate that the Court thought it was changing a rule of law as to the competency of accomplices to give evidence which had been followed ever since the 17th century …. Its ratio decidendi is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe on its facts was clearly a correct decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude [the accomplice’s] evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the Court and that the existence of this inducement made it desirable in the interests of justice to exclude it. … it does not follow that in all cases calling a witness who can benefit from giving evidence is ‘wholly irregular’. To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered ‘for information leading to a conviction’ or even an order for compensation, or whose claim for damages may be helped by a conviction. … If the inducement is very powerful, the judge may decide to exercise his discretion; but when doing so he must take into consideration all factors, including those affecting the public. It is in the interests of the public that criminals should be brought to justice; and the more serious the crimes the greater is the need for justice to be done.
22. Turner was also applied in R v Pentonville Prison Governor (1981) 73 Cr App R 200 at page 212 by Boreham J:
It is clear that, despite the strong words of Lord Parker C.J. in Pipe’s case, the Court in Turner’s case … took the view that an accomplice is a competent witness and that the admissibility of his evidence is a matter of practice and discretion.
It seems to us that the following conclusions can properly be drawn from this line of authority: (a) that an accomplice is a competent witness—save, perhaps, when he is both indicted and tried with the defendant. Certainly there is no authority for the proposition that an accomplice who has been charged but not dealt with is not competent. Indeed Winsor v. R . … remains an authority against that proposition; (b) that there is no rule of law which renders the evidence of an accomplice—even one who has been charged but not tried—inadmissible. The rules referred to in Pipe … and Turner … are rules of practice and not rules of law. All the authorities from Winsor v. R . … onward—with the possible exception of Pipe —are to the same effect. In our view there is no conflict of principle between the decisions in Pipe and Turner . If there is, then we consider Turner to be more in line with the earlier authorities and we would follow it.
23. The form of the warning in relation to an accomplice is exemplified by the present case. The jury is entitled to convict on the evidence of an accomplice, but because of the fact that there is complicity in the crime and the accomplice has something to gain by giving evidence as and from the time of arrest onwards, the jury should treat that evidence with suspicion. When the evidence is not backed up by corroboration, independently tending to show the involvement of the accused against whom the accomplice gives evidence, in the crime, that danger arises from the ease with which the actions of another participant can be exaggerated or whereby it can be alleged that someone is a participant who is not. Because of the bitterness and deceit inherent in criminal activity, it is necessary to treat accomplice evidence as dangerous unless it is so corroborated; see for example The People (DPP) v McGinley [1987] IR 340 at 343.
24. In that regard, there is a procedure to be followed. Since a criminal trial is one where the role of a tribunal of fact and tribunal of law is bifurcated, in cases where there is an issue about the matter, it is for the trial judge at the end of the evidence both for the prosecution and the defence to rule as a matter of law whether there is any evidence that a particular witness is an accomplice. While this direction, given in the absence of the jury, is not often called for because of the nature of the way accomplice cases run, that responsibility remains with the trial judge. Similarly, in the absence of the jury, the trial judge should seek submissions from counsel for the prosecution as to what particular pieces of evidence it is contended by the prosecution could amount to corroboration. That latter argument should happen in every accomplice case. It should be clarified by the trial judge as to what pieces of evidence counsel on each side may address themselves as to whether corroboration may be found by the jury or not. The defence, in that regard, also have a role to play in making submissions in the absence of the jury. The defence may make submissions as to whether there is evidence that a witness is an accomplice, in the rare case where that is in issue, and, in every accomplice case, as to whether any particular piece of evidence could amount to independent testimony tending to implicate the accused in the commission of the crime. The judge, in the absence of the jury, will then rule, if necessary, as to whether there is evidence that a particular witness is or is not an accomplice and will also rule which pieces of evidence can as a matter of law, if accepted by the jury, independently of the accomplice support the commission of the crime by the accused. Clearly, the practice of ruling if a witness is or is not an accomplice will not be necessary in the event that the witness has pleaded guilty to the same event as the accused. Then, it will be obvious. What will always be necessary, however, is a discussion in the absence of the jury as to what elements of the prosecution case can amount to corroboration.
25. The judge will rule as a matter of law that a witness is capable of being regarded as an accomplice. The judge, in the charge to the jury, should tell the jury this about the witness and tell them what, related to the facts of the case at trial, may demonstrate that he or she is an accomplice. That can be as simple as pointing out that the accused and the accomplice were, on the accomplice’s account in testimony, or by a guilty plea or jury finding, involved in the same crime. As to whether a witness is an accomplice is then a question of fact for the jury. The accomplice warning will be given where that issue is left to the jury. The judge will then go on to point to those pieces of evidence, or item of evidence, which, as a matter of law, if accepted by the jury, can amount to evidence independent of the testimony of the accomplice and which tend to implicate the accused in the commission of the crime. It is then for the jury to make a decision as to whether, in fact, the witness was an accomplice, in those rare cases where that issue is in doubt, and in all accomplice cases to then consider whether they accept the evidence that might amount to corroboration. Then, in the light of that decision as to whether there is or is not corroboration proven, the jury should proceed to analyse whether they accept the evidence of the accomplice. That order is confirmed by the case decisions.
26. In AG for Hong Kong v Wong Muk Ping [1987] AC 501 at 512, at issue was the startling proposition that the jury might review the evidence of the accomplice independent of any view which they took as to corroboration. In which case, reviewing the corroboration would be a pointless exercise since, then, the jury would have already decided in the absence of corroboration as to whether they accepted the evidence of the accomplice even despite the warning. The warning would then be rendered completely pointless. Lord Bridge said:
Where the prosecution relies on the evidence of an accomplice and where (in contrast with the instant case) the independent evidence capable of providing corroboration is not by itself sufficient to establish guilt, it will have become obvious to the jury in the course of the trial that the credibility of the accomplice is at the heart of the matter and that they can only convict if they believe him. The accomplice will inevitably have been cross-examined to suggest that his evidence is untrue. The jury will have been duly warned of the danger of relying on his evidence without corroboration. Their Lordships can see no sense in the proposition that the jury should be invited, in effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration.
27. This brief review of the law indicates that in cases where there is an issue as to whether a witness is an accomplice or not, the trial judge should hear submissions in the absence of the jury and rule on the issue. The trial judge should also rule on which pieces of evidence contended for by the prosecution to be corroboration could amount to evidence independent of the testimony of the accomplice which tend to show the commission of the crime by the accused. It is then a matter for the jury to decide, where this is an issue, (a) if a particular witness is an accomplice and, (b) in all cases whether they accept beyond reasonable doubt the independent testimony tending to show the commission of the crime by the accused and (c) in the light of that, whether they accept beyond reasonable doubt the testimony of the accomplice implicating the accused, bearing in mind the warning they have been given.
28. Given the central role of counsel in this process, particularly that of debating which items of evidence independent of the accomplice could amount to corroboration, the issue remains as to whether the trial judge, where counsel do not raise any accomplice point, could unilaterally make a decision that a witness was in fact an accomplice, warn the jury in that respect of the dangers of convicting on his or her uncorroborated testimony, and then proceed to put items to the jury as potential corroboration to be accepted by them. Any such step would have to be taken by the trial judge without submissions, a step always taken by counsel for the prosecution and defence in the absence of the jury on the issue of what, as matter of law, may or may not amount to corroboration. Such a unilateral decision in the absence of submissions from counsel for the prosecution and counsel for the defence would tend to undermine the role of counsel. That, however, is not the procedure. This review of the ordinary steps in dealing with accomplice cases makes it clear that counsel for the defence have a role in raising the issue and in addressing it. This is part of the burden of adducing evidence and this is borne by the accused; see in that regard the judgment of Walsh J in The People (AG) v Quinn [1965] IR 366 at 382 and DPP v Clarke [1994] 3 IR 289.
29. In this case, the issue was not raised. Instead, the run of the trial indicates that, as regards Laura Kelly, there were other matters which it was decided by the accused might more profitably be raised against her.
This trial
30. Allegations arising on the instructions of an accused in a criminal trial should be put to a witness in order that he or she can have a fair opportunity to deal with same. In McNamee v Revenue Commissioners [2016] IESC 33 the judgment of Laffoy J applies the decision of the House of Lords in Browne v Dunn (1893) 6 R 67 at 76-77 which is encapsulated in the following statement of Lord Halsbury:
To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity often to defend their own character, and not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.
31. This was most recently affirmed by the Supreme Court in McDonagh v Sunday Newspapers [2017] IESC 46. At this trial, counsel for the defence assiduously pursued this rule and did so in a way which demonstrated that the accused had absolutely no interest in accusing Laura Kelly of being an accomplice but, instead, had other issues of interest. As it happens, defence counsel pursuing those issues would not bring into contention whether the witness was under coercion and would not emphasise the instructions which she said came from the two men that they had only appeared in her house at a much later time in the night or morning than before the shooting and in the immediate aftermath of hearing the shots ring out.
32. All of that happened in this trial and happened in such a way as made it obvious that the accused had no interest in accusing Laura Kelly of being an accomplice. In fact, to do so would have been contrary to his narrative of fact in defence. It was put to her by counsel for the accused that her domestic partner had been involved in a dangerous driving causing death incident. While this would not impact directly on her credibility, it was put before the jury. More importantly, it was alleged that on 1 February 2008, she was driving a car accompanied by three of her children and that the allegation against her was that she was “accompanied by a stash of drugs”. To this she answered “[n]ow, there’s that brilliant words that you just said there, “alleged”.” It was put to her that she was a “drug dealer” and that she would be “contesting these charges” and that she had failed to turn up in the District Court on occasion in consequence of which a European arrest warrant had been issued against her. While references were made to a witness protection programme as a reason for her leaving Ireland, in fact her evidence was given over a video link from Westminster, it was alleged that her statement putting the accused in the picture for the crime was made in consequence of an attempt to curry favour with the gardaí because of the trouble she was in. Laura Kelly was also asked about a criminal conviction for “threatening and abusive and insulting behaviour and assault” on 11 July 2001.
32. As to the sequence of statements, it was put to this witness by counsel for the accused that on two occasions she had given statements to the gardaí but, contrary to her later accounts, had not named the accused Jonathan Fitzgerald as being one of the men in her house who had gone off in a bullet-proof vest in the context of the shortly after occurring gunshot noises.
Counsel put his case on behalf of the accused as follows:
Now it doesn’t quite end there though, Ms Kelly, because the problem that we have with your evidence is that, when you say that a man called Jonathan Fitzgerald came to your house in the way that you described it with two other people, we say that you’re wrong there, when you say he came in with your nephew Raymond and the other man, we say that you’re wrong there? … But you see the problem is you’ve given different accounts of what happened and in the accounts near the days you never mention him, you do say in the second account, and all of this matter will be proved by other witnesses, that a man identified as Jonathan Fitzgerald came — you came downstairs and found him there in the morning, do remember saying that in court today? … [The] accused person disagrees [with you on] your allegation that he came to your house with other persons before the shooting, that’s what we disagree with; we say you’re wrong about that?
33. To this the witness indicated that she was telling the truth. It was also alleged against her by counsel for the accused that any evidence in respect of making petrol bombs was also of a kind with the other allegations and, referring to the drugs charge against her, “very consistent with somebody who is just trying to get off the hook” themselves. To this, she pointed out that she was “very afraid” of the men in her house, the accused in particular.
Accused’s case
34. On the run of this case, as disclosed by the transcript, counsel had clearly taken instructions which were not to the effect that Laura Kelly was an accomplice to the crime, or that she had done anything after the crime, either at the behest of the accused or spontaneously, in order to conceal the perpetrators, such as telling the police to go away or rewinding the closed circuit television video, but rather that the accused had no interaction at all with her in relation to the crime. That was what the accused wished to have put across to the jury through the cross-examination of this witness by counsel. On his case, Johathan Fitzgerald had arrived at the house well after the murder of Noel Crawford had taken place. Thus, on his instructions, which are admirably clear from the manner in which counsel for the defence put his questions on behalf of the accused, he had arrived in the house at a time when there was no question of him needing to be burning bloodied clothes in the aftermath of a murder, or washing himself, or intimidating anyone, but, rather that he was an innocent person caught up in suspicion merely because he had sought a place to sleep or of refuge independently of any crime that he had committed.
35. The decision not to run any accomplice point was that, therefore, of the accused. Counsel acted properly in putting his matrix of fact to the relevant witnesses. The case made by the accused was one which, as a matter of fact, distanced himself from any involvement with Laura Kelly or her domestic partner in arriving in the house shortly after midnight, and distanced himself from putting on bullet-proof vests, making a petrol bomb or bombs or arriving back and making admissions that they had shot someone and requesting that evidence of their arrival back at the house, recorded on videotape, should be erased. This was the case of the accused. Any intrusion of a rule of law which would have made it necessary for the accused Jonathan Fitzgerald to somehow allege that Laura Kelly had become an accomplice after-the-fact would have been an intrusion into his entitlement, basic to every criminal trial, to assert through counsel the facts which he claimed to be true and which, as he was entitled to contend, amounted to his defence.
Result
36. That being so, it is unnecessary to make any ruling as to what elements of the law can never voluntarily be foregone by an accused. Since the Constitution in Article 38.1 guarantees to all accused persons a trial in due course of law, it may be postulated as a matter of principle that an accused person cannot waive, for instance, the burden of proof beyond reasonable doubt in favour of postulating that he or she should be convicted if the evidence merely pointed to his or her probable guilt. Beyond that, it is difficult to be definite, save that no matter whatever the attitude of the accused, it is the duty of the trial judge and the prosecution to conduct the trial with dignity and fairness and in accordance with fundamental constitutional norms. On the issue of whether the trial judge should interject and raise a point which an accused has clearly decided not to pursue, it would seem that the exception most often noted in the relevant textbooks is that of public interest as a basis for the exclusion of evidence.
37. Nothing of that kind arises in this case. The appeal is therefore dismissed.
People (DPP) v Power
[2018] IECA 119
JUDGMENT of the Court delivered 24th of April, 2018 by Mr. Justice Edwards.
Introduction
1. The appellant appeared before the Central Criminal Court on the 28th of April 2014 and pleaded not guilty to a single count of murder contrary to common law; the particulars of the offence being that the appellant did, on the 17th day of October, 2012, in the County of Tipperary murder one Shane Rossiter.
2. The matter proceeded to trial and on the 5th of June 2014 an eleven person jury, by a majority of ten to one, found the appellant guilty of the murder of Shane Rossiter. The appellant was sentenced on the same date to life imprisonment backdated to the 11th of December 2012.
3. The appellant now appeals against his conviction.
Evidence relevant to this appeal
4. The deceased, Mr. Shane Rossiter, was born on the 13th of February 1983 and was 29 when he was killed. On the 17th of October 2012 there was a house party at 3 Church Lane, Golden, Co. Tipperary involving a small group of people including the deceased. During the house party there was a degree of illicit drug use. The individuals present included a Mr. Paul McCarthy, a Ms. Siobhan Murphy, a Mr. Andrew Heaphy and the deceased man, Mr Shane Rossiter.
5. In the early hours of the morning of the 17th of October, the deceased man and Mr. Paul McCarthy went out the front door of the premises in the belief that the appellant would be there to deliver cannabis to them. Mr. McCarthy told the jury that “I walked out of the house, there was a car parked there, and I seen a gun and I ran.” Pressed on what exactly he saw, he said: “A car parked there, two fellows sitting in the car and a gun came out the window and I ran” He said the car was “just a footpath away” from the house. He couldn’t say what colour the car was, other than to say it was dark. He couldn’t say if the gun had come out through the driver’s window or the passenger’s window. However it had come out through a front window. He just saw the barrel of the gun. He had run, believing he was a target, and having crossed a field ended up in a graveyard. He heard one gunshot, and on hearing it he rang the emergency services.
6. The jury heard evidence that the deceased was in fact shot twice with a shotgun. Gardaí arrived on the scene and commenced an investigation. The following day, Thursday the 18th of October 2012, a burned out Audi A4 with the registration number 01-D-12430 was discovered at a bog in the Nire Valley, County Waterford. This was suspected to have been the car used in the shooting.
7. The appellant was identified as a person of interest at an early stage of the investigation. The appellant’s partner was Pamela Cahill, who was known to drive an Audi A4. The jury heard that an Audi A4, driven by a man believed to be the appellant, was captured on CCTV at a Tesco petrol station at approximately 6.30pm on the 16th of October 2012, which was about 12 hours before the murder. The jury was shown the relevant CCTV footage.
8. On the 18th of October 2012 the appellant attended Clonmel Garda station voluntarily along with his solicitor and made a statement. On the 11th of December 2012 the appellant was arrested in connection with the murder of Mr. Shane Rossiter and was detained from the 11th of December to the 15th of December 2012 at Clonmel Garda Station, where he was interviewed a number of times. In the course of being interviewed he confessed to having killed the deceased.
9. The jury also heard there was a history of violence between the appellant and the deceased, the appellant having stabbed the deceased seven years before. Upon his recent return to this jurisdiction after several years in Australia, the appellant became fearful that the deceased would exact retribution. He said in one his interviews that he believed that it was, for him, a case of “kill or be killed.”
Grounds of Appeal
10. There are 17 Grounds of Appeal listed in the Notice of Appeal. They are as follows:
(i) The trial judge erred in allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased.
(ii) The trial judge erred in allowing witness Pamela Cahill to refresh her memory in respect of the registration details of a motor vehicle.
(iii) The trial judge erred in ruling that the memorandum of an interview with the appellant on the 18th October 2012 was admissible.
(iv) The trial judge erred in ruling that the memoranda of interviews with the appellant during his detention from the 11th to the 15th December 2012 were admissible.
(v) The trial judge erred in allowing the prosecution to adduce as an item of real evidence the vehicle registration document of a motor vehicle bearing registration 01-D-12430.
(vi) The trial judge erred in allowing the prosecution to adduce as an item of real evidence data extracted from a mobile telephone device and SIM card alleged to have belonged to the deceased.
(vii) The trial judge erred in ruling that independent evidence which supported the reliability of assertions made by the appellant in interview could amount to corroboration of his confession.
(viii) The trial judge erred in failing to properly explain corroboration to the jury, it being a term of art, and further failing to distinguish corroboration as regards the reliability of the content of the memoranda of interview versus corroboration as regards the actual commission of the offences. The trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration.
(ix) The trial judge erred in refusing to discharge the jury in circumstances where the jury was directed with unnecessary force and repetition that suggestions made by counsel did not amount to evidence.
(x) The trial judge erred in directing the jury that the rights of society are balanced by the rights of an accused person without specifying that, if there is a conflict, the latter should take precedence.
(xi) The trial judge erred in directing the jury that, where evidence was not in dispute, it had effectively been proved.
(xii) The trial judge erred in implicitly indicating to the jury that the evidence of witnesses tendered by the prosecution carried less weight than that of witnesses directly-examined by the prosecution.
(xiii) The trial judge erred in failing expressly to direct the jury that the only evidence connecting the appellant to the alleged offence was his purported confession.
(xiv) The trial judge erred in failing to expressly to direct the jury that one of the main justifications for ensuring compliance with the Garda Custody Regulations was to prevent impropriety on the part of the Gardaí.
(xv) The trial judge erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.
(xvi) The trial judge erred in refusing to direct the jury that having a reasonable doubt about the propriety of the Garda conduct would demand an acquittal.
(xvii) The trial judge erred in allowing the jury, during the course of deliberating, to view CCTV footage in open Court in the presence of the Appellant.
Ground (i) – Evidence of Past Violence between the Victim and the Appellant
11. There was evidence in relation to a stabbing incident in 2005 in which the appellant stabbed the deceased repeatedly, almost killing him. This was mentioned by the appellant during the course of interviews with Gardaí. According to the accused’s own statements (not read to the jury), the deceased had raised the incident in conversations with him during the period leading up to the murder. In his confession, read to the jury, he acknowledged that he had begun to worry that the deceased would seek revenge:
As you know, there is a lot of serious history between the two of us. I’ll start about seven years ago, I’ve told you about those incidents over the past couple of days, it involved a stabbing and it escalated from there. It really took a turn for the worst this year, as I was aware that I was trying to be set up again. I was in fear for me kids, myself, I had no other choice, I was backed into a corner and I reacted like any other person would have. I know that if I didn’t do what I had to do, I probably wouldn’t be sitting here today. I received a phone call in the early hours of the morning asking would I drop Shane Rossiter a bit of hash, that he was on his own with his girlfriend and would I drop out the bit of hash and that I wasn’t going into the house, that there was only the two of us there. I knew it didn’t sound right, but I went out there anyway. Once I was out there a man I didn’t know came out in front of Shane Rossiter. I knew straightaway there was something gammy as he told me he was on his own there. They came out walking towards me zipping up their jackets. One fellow got close to the car and asked me what the crack was. Then I let a shot at Shane Rossiter. I was fully aware that he had a handgun and I expected that there was going to be shots exchanged and I wasn’t waiting to see. The other fellow that was with him ran off. I walked down through the car park just to make sure he wasn’t the one that had the gun. I couldn’t see him anywhere, so I walked back to the house, shot him again. It was I left then, I knew it was a case of kill or be killed. I left there then, and got rid of the car. I got into another car I had parked up the mountain. I went down to a mate’s down in Kerry.
12. There was also evidence, given by Ms Rachel Keating, that the appellant had been invited over to deliver a quantity of cannabis:
Q. Now, when Shane Rossiter was with you in the — in Cody’s bedroom, you’ve told the jury about that, did you at any time see him use a mobile phone?
A. Yes.
Q. And can you tell the jury about that?
A. He was speaking — as I can remember he rang Mossy and he rang him to look for a bag of weed.
Q. Now, how did you know that he was ringing Mossy to look for a bag of weed?
A. Because he had said that they were — like Siobhan and Paul and everyone they had all decided they were going to get a bag of weed off him or somewhere and Shane said he could get it off Mossy and so he rang Mossy to look for it.
13. In seeking to have the evidence of stabbing and illicit drug dealing admitted, the prosecution relied primarily on the case of The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669, submitting that the evidence was both relevant and necessary to the prosecution case
14. In relation to the stabbing the trial judge ruled as follows:
“The fact that the evidence tends to show the commission of other crimes does not render it inadmissible. The test to be applied is that of relevancy and necessity. And I hold, not least because of the statement of the accused man himself, that this all started with the stabbing incident in 2005, that that is background evidence which is admissible in the course of the trial to show what again was the genesis of all of these unhappy events. However, the – I would limit the evidence to the fact, if the evidence be there, I would limit it to the fact of the stabbing, and that it was a significant stabbing. And by that, I mean that it was such as to require hospitalisation. I think it would be trespassing into the area of undue prejudice were the evidence to go beyond that. Such as evidence referred by Mr Sammon before lunch, that the deceased nearly died. That is not, it seems to me, necessary for the complete picture, for the jury to have the complete picture, and does trespass into that area of being more prejudicial than probative.
15. Regarding the evidence of drug dealing she ruled:
JUDGE: I think in the context of explaining the sequence of events, that -that it is material and relevant that the jury know and they’ve already heard quite an amount about drugs, in any event, that — and even though it suggests misconduct, that it is important for them to understand that there was a conversation, that there was an invitation to Mr Power to come to visit Mr Rossiter in Golden. And that they shouldn’t be speculating about what that was about, and we can get rid of any potential speculation or questioning by the jury, by simply telling them what it was about.
16. The appellant submits that neither piece of evidence was necessary to the prosecution case and should therefore not have been admitted. He further submits that it was imperative that a carefully worded direction be given as provided for in The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669. Regarding the stabbing, the respondent submits that the trial Judge engaged in a sufficient balancing exercise, only admitting that which was necessary and probative and excluding unduly prejudicial evidence. The respondent submits that the evidence in relation to drugs was of significant probative value in explaining to the jury the reason for the appellant’s presence at the scene of the crime. Without such evidence the jury may have ventured into the realm of speculation. While the respondent concedes that the trial judge gave no special direction, they submit firstly that there was no need for one as there was no evidence that the appellant was a drug dealer and secondly, relying on The People (Director of Public Prosecutions) v Cronin (No. 2) [2006] IESC 9, as no such point was raised in requisitions it may not be raised on appeal.
Decision
17. In The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669 the former Court of Criminal Appeal had certified the following question of law for determination by the Supreme Court pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006:
“Is evidence of connected background history, which might disclose matters not laid down in the indictment and possibly prejudicial to the accused but which is essential or helpful to the jury understanding the charges actually laid in the indictment, admissible in a criminal prosecution?”
18. The Supreme Court held (by a majority of four to one) that background evidence, which might disclose matters not laid down in the indictment but which might have been in the book of evidence and which would be prejudicial to an accused, was admissible if it was so relevant to facts to be proved by the prosecution or defence and to be determined by the jury that it was necessary to render comprehensible such facts. It was admissible if, without such evidence, the facts would be incomplete or incomprehensible for a jury.
19. Following The People (Attorney General) v Kirwan [1943] I.R. 279 the Supreme Court further held that evidence that an accused had committed offences, other than that or those charged in the indictment preferred against him, was never admissible for the purpose of leading the jury to hold that an accused was likely, by reason of his criminal conduct or character, to have committed the crime in respect of which he was being tried. However, the mere fact that evidence adduced tended to show the commission of other crimes did not render it inadmissible if it was relevant to some issue of fact which the jury was called upon to determine. Moreover, and in that regard, O’Donnell J opined that it would be “a mistake to seek to determine the admissibility of evidence only on the basis that it is, or is not, included in an identified sub-category sanctified by precedent.” The correct test to be applied by the court in considering whether background evidence should be admitted was whether the evidence was relevant and necessary. The test was not merely whether it would be helpful to the prosecution to admit the evidence.
20. In her judgment, Denham C.J. indicated obiter dictum that, while a warning was a matter for the discretion of the trial judge, in general it would be wise for a trial judge to give the jury a warning as to the nature of background evidence, as to why it was being admitted and concerning the purposes for which it might and might not be used.
21. Dealing first with the admission of the evidence of the previous stabbing, the trial judge considered that this was both relevant and necessary to show what the judge described as “the genesis of all these unhappy events”. We completely agree. The accused had told the Gardaí that he believed it was a case of “kill or be killed”. It was necessary for the jury to appreciate the extent of the bad blood and animus between the appellant and deceased, to properly assess the actions and possible motives of the appellant, and also for that matter of the deceased . The trial judge adopted a very balanced and measured approach in only admitting evidence of the fact of the stabbing, and that it was serious in the sense of requiring hospitalisation, but no more than that. We are fully satisfied that his ruling in that regard was correct in principle and as a matter of law.
22. With respect to the admission of the evidence of the appellant’s participation in supplying cannabis we cannot see how the admission of that evidence could have been avoided in the circumstances of this case. It was absolutely central to how the appellant knew of the whereabouts of the deceased on the evening in question, it was relevant to opportunity, it was relevant to the relationship between the parties, to the alleged animus between the appellant and the deceased, and to a range of other issues. The trial judge felt it was necessary that the jury should have this evidence to avoid them speculating, and again we agree with him in that regard.
23. We also consider that the respondent makes the valid point that no requisition was raised concerning the fact that the trial judge did not give a warning to the jury along the lines recommended by Denham J. The respondent contends that such a warning was unnecessary in the circumstances of this case where the background evidence was so inextricably bound up with, and clearly relevant to, the central event such that it would have been obvious to the jury why they were receiving it, and the use to which it could be put. We are prepared to attribute weight to this view in circumstances where it did not occur to anybody on the legal teams that had listened to the judge’s charge that a warning was necessary and where nobody raised a requisition requesting a warning.
24. In the circumstances we are not prepared to uphold Ground of Appeal No. (i).
Grounds (ii) and (v) – Allowing Pamela Cahill to Refresh her Memory and Admitting the Registration Document of Motor Vehicle 01-D-12430
25. During Ms Cahill’s examination in chief, she was asked in relation to registration details of a car she had previously been the registered owner of:
Q. Now, I’m going to ask you about a motorcar that you told the guards that you were the registered owner of at some time in the past?
A. Yes.
Q. Do you recall that?
A. Yes.
Q. And what car was that?
A. A black Audi.
Q. And what model Audi was it?
A. A4.
Q. And do you recall now the registration numbers and letters of it?
A. I know it was 02 but I can’t really remember the rest of it.
Q. I’m sorry?
A. I can’t remember the rest of it. It was a 02.
Q. When you gave the guards a statement did you recall it then?
A. Probably.
Q. You gave them the number?
A. Yes.
26. The prosecution then sought leave to allow Ms Cahill to refresh her memory from the record of her statement to the Gardaí. Counsel for the appellant objected on the basis that what he characterised as “the provenance” of her recollection had not been properly established. It was submitted that it had not been established that in so far as her statement to the Gardaí contained a registration number that that number had been provided unprompted by the witness as a genuine recollection from memory, and had not been suggested to her by the Gardaí in the manner in which they had phrased their enquiries. The trial judge was disposed in light of the concern raised, and before ruling on the issue, to allow counsel for the appellant to cross-examine the witness about how the registration number came to be in her statement. That cross examination gave rise to the following exchanges:
Q. And when the guards came to you about the car were you able to — the number appears in your statement?
A. Yes.
Q. And it can have got there in two ways I suppose. One is that you could remember the number at the time and gave that to the guards?
A. Yes.
Q. Or that the guards had said we’re enquiring about a black Audi with this registration number, is that yours? Do you remember which of those two it was?
A. I don’t really remember, no.
27. The trial Judge ruled as follows:
It appears to me to be somewhat unreal to — where issues such as numbers or identification numbers are concerned that people cannot be expected to remember, particularly in the modern era where you don’t have your county identification as we used to have in the old days and maybe four brief numbers, there are — increasingly it is more difficult to remember the registration numbers of one’s car and, as Ms Sammon has pointed out, even the current car that one might be driving. I think it is not unreasonable in the light of the evidence given by the witness that she, in answer to Mr Sammon, said that she gave the number to the guards at the time. In answer to Mr McGinn she said she didn’t know whether they said it to her or she said it to them. The question is what was the number of the car and I think in fairness it would be appropriate to allow the witness to refresh her memory from her statement on the basis that that is — that the fact of the ownership of that vehicle will be proved in due course independently of the witness’s recollection.
28. Counsel for the appellant maintains that the judge’s decision represented an error in principle and that the witness should not have been allowed to refresh her memory as to what she had said to the Gardaí. Counsel for the respondent submits that the trial judge’s decision represented a proper exercise of her judicial discretion.
29. We agree with counsel for the respondent. The objection raised by counsel for the appellant was misconceived. The issue raised had the potential to bear on the question of what weight, if any, the jury might attach to the witness’s recollection once refreshed, but it was not a valid basis for contending that the witness should not be allowed to refresh her memory. There was no potential unfairness in the proposed procedure. It was not disputed that the witness had made a statement to the Gardaí, which was recorded in writing. There was no dispute that the record was a contemporaneous or nearly contemporaneous one. It was not disputed that in that statement there was an assertion by the witness that she was the owner of a vehicle bearing a particular registration number. The witness was allowed to refresh her memory with respect to what that registration number was. The written record was at all times available to the defence. They were entitled to cross-examine her before the jury about her recollection as refreshed; and to suggest to her that she might have been prompted by the Gardaí during informal questioning before the taking of a formal statement from her concerning the registration number at issue; and to suggest that it was the case that she had in truth acknowledged and accepted ownership of a registration number suggested to her, rather than providing a registration number unprompted and from genuine recollection. She could have been asked how come she could purportedly remember the registration number in the course of giving her statement to the Gardaí, but could no longer remember it when it came to giving evidence in court. Her response to these, and other possible questions that might be asked of her in cross-examination, had the potential to impact on the weight that the jury might attach to her claim of recollection. The defence had full scope to explore these issues. However, the trial judge’s decision to allow the witness to refresh her memory was a legitimate exercise of her judicial discretion, and we see no legal basis for criticising her decision in that regard.
30. Later on at trial the prosecution called a Ms Theresa O’Grady. This lady had received in the post a motor tax book relating to a motor vehicle with the registration 01-D-12430 registered to a John Byrnes, who was not known at Ms O’Grady’s address. The trial judge allowed her evidence and the contents of the tax document to be adduced to the jury.
31. The appellant submits that Ms O’Grady should not have been permitted to read out the contents of the document because in circumstances where she is not the author, this offends the rule against hearsay. However the respondent rejects this, submitting that as the truth of the document was not sought to be relied on there was no breach of the rule against hearsay.
32. The relevance of the evidence was that vehicle registration records for the burned-out vehicle of interest, a Black Audi which Gardaí believed was owned by Pamela Cahill and had used by the appellant on the night of the shooting, purported to show that ownership of the vehicle had in fact been transferred to a Mr John Byrnes of 12 Ballybeg Park, Waterford, on the day before the shooting, i.e., the 16th of October, 2012. The Gardai believed that this Mr John Byrnes was a non-existent person, and that the registration of a transfer of ownership of the vehicle to this purported person was on the basis of a phoney sale and with a view to misleading Gardaí in their enquiries. The true occupier of 12 Ballybeg Park, Waterford was Ms O’Grady. Her evidence was that she lived at 12 Ballybeg Park, Waterford and was living there in the autumn of 2012 when a letter addressed to a John Byrne was delivered to her address through the post. She opened the letter and found it contained a motor tax book, and kept it for two weeks. No John Byrnes had ever lived at her house. Then two Gardaí came to her door and they asked for a John Byrnes. She informed them that there was no John Byrnes there but told them she had a letter for a person of that name and she gave them the opened letter with a tax book in it. This tax book was the document in controversy. The Gardaí wished to establish what the tax book in question purported to say about the ownership of the vehicle as a piece of circumstantial evidence in support of their case. In doing so they were not seeking to prove the truth of those contents. In fact it was their case that there was no such John Byrnes.
33. We unhesitatingly agree with the respondent that this evidence was admissible. As the prosecution were not relying on the truth of the contents of the tax book, and in fact were contending the very opposite, namely, that in so far as it recorded the ownership of the vehicle as being in the name of a Mr John Byrnes that that was in fact untrue, evidence of the contents of the tax book did not constitute inadmissible hearsay. As this Court has previously said in The People (Director of Public Prosecutions) v O’Mahoney [2016] IECA 111 :
“44. A document can potentially be used in evidence for one of three purposes. It might be adduced as real evidence, alternatively as original evidence or as testimonial evidence.
45. A document is a physical thing, and where its potential evidential value lies in its physical appearance or some physical characteristic that it has, it may be used as real evidence. What that means is that it is introduced so that the tribunal of fact may observe for itself the appearance or characteristic in question, and take account of it. So, for example, it might be relevant from an evidential point of view that a document is torn or damaged, or stained with some substance.
46. However, a document is also a medium of communication and if its potential evidential value lies not in its physical appearance or characteristics, but rather in its content, i.e, in the information that it contains and communicates, then it may be used either as original evidence or as testimonial evidence. This is because content may be of evidential value in one of two ways. The mere fact that the document has certain content, whether or not it is true, may sometimes be probative and relevant in and of itself. If the intention of the party adducing the document is simply to demonstrate that the document has certain content, but that party is not seeking to rely on the truth of that content, then it is correctly to be characterised as constituting original evidence. However, if the document is adduced for the purpose of relying both on the existence of its content and the truth of its content, then it is properly to be characterised as constituting testimonial evidence.
47. If the intention is merely to use the document as original evidence it is sufficient to establish in evidence, through an appropriate witness or witnesses, provenance, due execution and content.
48. If, however, the intention is to use the document as testimonial evidence, i.e., the party adducing it is relying on the truth of its contents, then in addition to establishing, provenance, due execution and content, it is necessary to go further and show that the ‘testimony’ contained within it is admissible in evidence. In that regard such ‘testimony’ is subject to the ordinary rules of evidence, including ‘the rule against hearsay’.”
34. The tax book in the present case was admissible as a piece of real evidence and its contents were admissible as original evidence. There was nothing inappropriate about Ms O’Grady being asked to read the contents to the jury in the circumstances. If the contents had not been read out to them the jury would have been entitled to inspect the exhibit in the jury room and read the contents for themselves in any event. The contents were not hearsay unless they were being relied upon as establishing the truth of the matter being asserted. That was not the purpose for which the prosecution introduced this evidence. It was introduced to show that there had been a purported attempt to transfer ownership of that vehicle into the name of a person called John Byrnes, who was not believed to exist. This was a piece of circumstantial evidence that the prosecution were entitled to rely upon in support of their case. Accordingly, the evidence did not breach the rule against hearsay.
35. In the circumstances we are not disposed to uphold either of grounds (ii) or (v).
Ground (iii) – Alleged wrongful admission of interview of 18th of October 2012
36. The evidence was that on the 17th, and possibly also on the 18th of October 2012, D/Garda Bergin called to the appellant’s home in an effort to speak with the appellant, but the appellant was not home. He subsequently called to the appellant’s mother in law’s home, and succeeded in speaking to her. She was unable to indicate the appellant’s whereabouts but said she would make an effort to put him in contact with the Gardaí.
37. Although D/Garda Bergin denied in his evidence (as did his colleague D/Garda Cooke) that the appellant was regarded as a suspect at this point, it is clear that the appellant was at the least a person of interest to An Garda Siochána. As D/Garda Bergin put it “[a]s a result of the incident that took place in Golden certain names came to the fore and in order to eliminate or include, as the case might be, persons that may or may not be involved I carried out enquiries in relation to contacting Mossy Power …[and another named party] .”
38. Later, at about 7.25pm on the 18th of October 2012, D/Garda Bergin received a phone call from the appellant, who stated that he would call to Clonmel Garda station later on that evening, and that he would be accompanied by his solicitor. Later at approximately 8.25pm on that evening D/Garda Bergin received a second phonecall, this time from the appellant’s mother, to say he would be there “shortly”. The Detective Garda, who was out on patrol, returned immediately to Clonmel Garda station, arriving there at about 8.30pm, to find the appellant waiting for him.
39. Although the appellant had pre-arranged to have his solicitor, Mr Eamon Hayes, present Mr Hayes did not arrive at the Garda station until a short time after the appellant had arrived. In the meantime, the appellant had a short conversation with members of the Gardaí then present. The appellant was neither arrested, nor detained. Upon Mr Hayes’s arrival the appellant voluntarily made himself available for interview and was formally interviewed. This interview was conducted in an interview room by both Detective Garda Bergin and Detective Garda Cooke. It was not video-recorded, although video recording facilities were available. Detective Garda Bergin and Detective Garda Cooke both contended that the appellant had been offered a video recording of the interview but declined. This was strongly disputed by the solicitor. Be that as it may, a written note or memorandum of the interview was taken by one of the interviewing Gardaí and the interview was conducted in the presence of the solicitor.
40. The interview commenced at 9.05pm with the administration of the usual caution to the appellant, and that was followed by the following exchanges: Question: “Do you understand that you are free to leave the garda station at any time and that you are not under arrest?” Answer: “Yes.” Question: “Do you wish to account for your movements on the 16th of October and the 17th of October 2012?” Answer: “Yes.” Question: “Do you wish to consult with Eamonn at this point?” Answer: “Yes.”
41. The record of the interview then notes that “Eamonn Hayes indicates that he is not aware of circumstances surrounding Maurice Power presenting himself at Clonmel Garda Station and requests to speak with his client” . He was allowed to do so, and Detective Gardaí Bergin and Cooke are recorded as leaving the interview room at 9.12 pm to facilitate this.
42. The interview resumed at 9.20pm, and there was substantive questioning of the appellant until 10.05pm when the interview concluded. The appellant’s solicitor had been present throughout. The notes were read over to the appellant at the end of the interview. The following exchanges then took place: Question: “Is there anything else you want to say?” “No, that’s it.” Question: “Are these notes a true reflection of the conversation we had?” Answer: “Yes.” “Is there anything you would like to change or add?” Answer: “No.” “Have you made this statement freely and voluntarily?” Answer: “I have.” Question: “Will you sign these notes as being correct?” Answer: “Yes.”
43. The appellant then signed the notes in the presence of Detective Garda Bergin, Detective Garda Cooke, and his solicitor Mr Hayes. Both Gardaí countersigned the notes as witnesses to his signature.
44. At the appellant’s trial there was a challenge to the admissibility of evidence concerning what had transpired at this interview. In the course of a voir dire counsel for the appellant vigorously objected to the admission of this evidence on the basis that the interview had not been video recorded in accordance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997, S.I. 74/1997 as amended by the Criminal Justice Act 1984 (Electronic Recording of Interviews) (Amendment) Regulations, 2010, S.I. 560/2010 (“the 1997 regulations, as amended”). While it was acknowledged the trial judge had a discretion to admit such evidence, counsel for the appellant relied on the case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 in support of the proposition that the Court should be reluctant to admit such evidence. He further relied on The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 as authority for the proposition that the 1997 regulations, as amended, apply to admissions made where an accused voluntarily presents him or herself for interview.
45. In her ruling on this point, the trial judge accepted that there was a reasonable doubt as to whether a video recording had been offered. However, she went on to consider whether the 1997 regulations, as amended, in fact applied at all, and also whether the case law to which she had been referred applied to the appellant’s case. Her ruling bears quotation in full:
“The question next arises as to whether the failure to video-record the interview amounts to a breach of fair procedures such as to render the memo of interview inadmissible. The Court has been referred to the cases of DPP v. Michael Murphy [2005] 4 IR 504 and DPP v. Michael O’Neill [2007] IECCA 8. In the former case, the Court of Criminal Appeal pronounced that henceforth — which is a 2004 case, “Henceforth, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than in those circumstances specified in the regulations themselves and respect of station interviews. From this point onwards, the Court should only exercise its discretion pursuant to 27(4) for very good reason.” These regulations apply to persons detained in garda stations for the investigation of criminal offences. Counsel for the accused argues that they should be extended to cover Mr Power because though voluntarily in the station, he was in fact a suspect for the murder. He seeks to drawn an analogy with the situation which arose in the case of DPP v. Michael O’Neill. There Carney, J excluded a statement from the accused who had gone voluntarily to the garda station because of the failure to videotape a signed cautioned statement made by him. The analogy in the Court’s view is not well made. In the O’Neill case, the accused having been questioned by gardaí in his own home about a rape complaint made against him, admitted initially having consensual sexual intercourse. Later in the same interview he admitted that he had raped the complainant. On being told that he would have to come to the garda station to make a full cautioned statement, the accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. That cautioned statement was not video-recorded and the statement was ruled inadmissible by Carney J having regard to the decision of the CCA in DPP v. Michael Murphy.
The factual situation arising in the DPP v. O’Neill is strikingly different from that disclosed on the evidence in this case. O’Neill had admitted rape. Had he not elected to go to the garda station he would most certainly have been arrested and brought there. He was in the circumstances entitled to all of the protections that the law affords to persons detained in garda stations. In the instant case, the accused Maurice Power was in an entirely different category to that of Michael O’Neill. Following the violent death of Shane Rossiter, garda interest in those with whom he was on bad terms, and there were a number of people, was entirely appropriate. One of these was the accused Maurice Power. The fact that a person had a dispute with a man who died a violent death does not make one a suspect in his death without further evidence. It would, however, be sufficient to make that person what is described as “a person of interest” to the gardaí. Maurice Power and others who were being sought that day on the 17th and 18th were potential suspects, not suspects. In the course of the day of the 17th, the day of the killing, and on the morning of the next day, Detective Garda Bergin attempted to locate Maurice Power, calling to a number of houses and speaking to a woman who he described as Maurice Power’s mother-in-law. At 7.25 pm on the 18th of October 2012 Detective Garda Bergin received a phone call from the accused offering to meet him at Clonmel Garda Station in the company of his solicitor, Eamonn Hayes. About an hour later he received a phone call from the accused’s mother to say the accused would be arriving shortly. Garda Bergin encountered the accused on his way into the station. The accused’s solicitor had not arrived at that point. Detective Garda Bergin brought him into the station and introduced him to the member in charge. He was informed in the presence of the member in charge that he was not under arrest, that he was free to leave the station at any time. The member in charge recorded these matters in the station book. As Mr Hayes was not present, the accused was invited to ring him and did so. None of this evidence has been contested.
Mr Hayes arrived, according to the evidence, at 9.03 pm. Accordingly, the accused was in the station for quite a number of minutes before his solicitor arrived. The parties and D/Garda Cooke, who had arrived to assist Garda Bergin, went to the interview room. There is no dispute that Maurice Power voluntarily went to the station. There is no dispute on the accuracy of the memo of interview. There is no dispute that Mr Power was cautioned and, given his previous history with the deceased, it was entirely appropriate that he was cautioned. There is no dispute that he had an opportunity to consult with his solicitor. There is no dispute that he was informed of his right to leave the station at any time. There is no dispute that his solicitor was present throughout the interview. While it would be preferable to have a video of that interview, its absence does not make it inadmissible. The Court therefore holds that there was no breach of fair procedures in the taking of a cautioned statement from Maurice Power and accordingly that the memo of that interview is admissible.
46. The appellant submitted to this Court that it was disingenuous to suggest that the appellant was not a suspect in circumstances where Gardaí saw fit to caution him at the beginning of interview; and, moreover, were keen to emphasise to the trial judge that in fact they had offered the option of video recording. It was submitted that the trial judge’s finding of fact in that regard was therefore against the weight of the evidence.
47. In reply, the respondent submitted that the 1997 regulations, as amended, do not apply to situations where an accused has voluntarily attended a Garda station. It was further submitted, that even if they did apply, a breach in circumstances such as obtained in this case, where the accused had voluntarily submitted to interview and was interviewed only after being afforded the opportunity of consulting with his solicitor, and with his solicitor present in the interview room throughout, would not justify the ruling of the evidence inadmissible. Moreover, the respondent submits that the trial judge’s finding that the appellant was not a suspect but rather a person of interest was one that open to her on the evidence, and that while the appellant might disagree with that finding there was evidence to support it.
Decision
48. Regulation 3(2) of the 1997 regulations, as amended, specifies their scope of application. It provides:
“These Regulations shall apply to interviews, including the taking and reading back of statements, that take place in a station with persons who have been detained under any of the following provisions:
(a) section 30 of the [Offences against the State] Act of 1939;
(b) section 4 of the [Criminal Justice] Act of 1984;
(c) section 2 of the [Criminal Justice (Drug Trafficking)] Act of 1996;
(d) section 42 of the Criminal Justice Act 1999 (No. 10 of 1999);
(e) section 50 of the [Criminal Justice] Act of 2007;
(f) section 16 or 17 of the Criminal Procedure Act 2010 (No. 27 of 2010).”
49. Regulation 4(1) of the 1997 regulations, as amended, then goes on to state:
“4. (1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically recorded.”
50. Regulation 4(3) then provides:.
“(3) An interview or part of an interview is not required to be electronically recorded:
( a ) where—
(i) the equipment is unavailable due to a functional fault, or
(ii) the equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available;
or
( b ) where otherwise the electronic recording of the interview is not practicable.”
51. We agree with counsel for the respondent that prima facie the 1997 regulations only apply to the interviewing of suspects detained under one of the specified statutory provisions. The accused in this case was not in detention at the time that he was interviewed on the 18th of October 2012.
52. We feel it is important to say something about the cases of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 and The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 referred to in argument, and by the trial judge in this case.
53. Before doing so, however, it is important to note that in 2003, two years approximately before the Court of Criminal Appeal gave judgment in the Murphy case, the issue of non-compliance with the 1997 regulations had been raised as an issue in another case, namely The People (Director of Public Prosecutions) v. Connolly [2003] 2 I.R. 1.
54. In Connolly, the accused, who was tried for trespass and stealing, was interviewed and made admissions while in s.4 detention, but the interview was not video recorded. The admissions were nevertheless admitted by the trial judge applying s. 27(4) of the Criminal Justice Act 1984. Hardiman J, giving judgment for the Court of Criminal Appeal, which upheld the trial judge’s ruling, had sounded the following warning note (at pp 17 and 18):
“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most first world common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It also has the consequence that, in a very high percentage of criminal trials there is a hard fought issue (‘the trial within a trial’) as to the admissibility of statements which are often whole or a large part of the prosecution case. Twelve years ago the Martin Committee reported that this situation had virtually ceased in Ontario because of audio visual recording. The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.”
55. The case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 which was relied upon by the appellant at the voir dire in the present case, and also in argument before us, again concerned circumstances in which an accused, on this occasion suspected of murder, was interviewed while in detention under s.4 of the Criminal Justice Act, 1984 but the interview was not video-recorded. It was sought to have admissions made by the accused at interview excluded on the basis that there had been a breach of the 1997 regulations. The Garda station in question was equipped with the necessary equipment, and it was believed to have been working. No satisfactory explanation was put forward for the failure to utilise it in the course of interviewing that accused. The trial judge had ruled the evidence admissible notwithstanding the breach of regulations, applying s.27(4) of the Criminal Justice Act 1984.
56. The Court of Criminal Appeal upheld the trial judge’s ruling, but only with considerable reluctance, noting in its judgment the remarks of Hardiman J in Connolly, and also a later dictum from a judgment of the Special Criminal Court in the case of The People (Director of Public Prosecutions) v Kelly (Unreported, Special Criminal Court, 26th November, 2004) suggesting that past admonitions about the desirability of recording interviews had had little effect.
57. The Court of Criminal Appeal upheld the trial judge’s ruling on the basis that there had not been any great contest in the trial as to what was actually said by the accused and, apart from one exception, there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardaí during the period of his detention. Moreover, the events in that case had taken place prior to the judgment in Connolly.
58. It was in that context that the Court of Criminal Appeal had gone on to say, obiter dictum, that:
“43. However, going forward and for the reasons already given, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than those circumstances specified in the Regulations themselves. We feel, therefore, that in respect of station interviews from this point onwards, the court should only exercise its discretion under s. 27(4) for very good reason.”
59. The Murphy case is not, however, authority for the proposition that a video recording obligation extends beyond the categories of cases specified in regulation 3(2) of the 1997 regulations, as amended. That case certainly does not suggest that such an obligation extends to persons who volunteer to be interviewed having presented themselves at a Garda station but who have not been detained. No such issue was canvassed or discussed in that case. While it might be suggested that as a matter of good practice it is desirable that any such interview should be video recorded, if only for the protection of both interviewers and interviewee from the possibility of false allegations or even misunderstandings, the failure to do so does not amount to a breach of the 1997 regulations, or for that matter of any other statute or statutory instrument or rule of the common law, such as would presumptively require the exclusion of admissions made in the course of such an interview. That is not to deny that a failure to video record when facilities to do so were available might possibly be a relevant circumstance, for consideration amongst others, in determining whether a challenged statement was voluntary or otherwise.
60. In so far as counsel’s submission to the court below was based on The People (Director of Public Prosecutions) v. O’Neill, what was opened to the court below was not binding on the trial judge in any way. What was put before the trial judge in this case was an account of a first instance ruling by Carney J, sitting in the Central Criminal Court, in Mr O’Neill’s trial for rape, excluding a statement made by Mr O’Neill while he was voluntarily attending a Garda station, on the grounds that it had not been video recorded. There was no judgment of Carney J opened to the court, nor was any transcript of Carney J’s ruling provided to the trial judge. On the contrary, what was opened to the trial judge was the judgment of the Court of Criminal Appeal in the appeal by Mr O’Neill against his conviction – The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8.
61. It is apparent from that judgment that the ruling of Carney J, now being relied upon, was not in fact the subject of the appeal. The appeal concerned a different issue altogether. However, in setting out the background to the appeal, Kearns J, who gave judgment for the Court of Criminal Appeal, simply noted:
“4. … The accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. Carney J. ruled that as the statement made in the garda station had not been videotaped, he could not be satisfied that it was admissible having regard to decisions of this court in The People (Director of Public Prosecutions) v. Michael Murphy [2005] IECCA 52, [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98.”
We would comment, en passant, that we have considered the Ivers case, and it is difficult to see in what way Carney J might have regarded it as potentially relevant, as it was not concerned in any way with the 1997 regulations. Be that as it may, counsel for the appellant, on the strength of the brief reference just quoted, submitted to the trial judge that there had been “a tacit approval” by the Court of Criminal Appeal of Carney J’s ruling.
62. We emphatically reject that suggestion. It is clear to us that the reference to Carney’s J ruling by the Court of Criminal Appeal in O’Neill was purely to provide the context in which that court was being asked to address another, and wholly different, point. The Court of Criminal Appeal’s judgment in the O’Neill case was simply not an authority for the proposition advanced by counsel for the appellant in the court below, and again before us.
63. We are satisfied that in the present case there was no breach of the 1997 regulations because the appellant was not in detention under one of the relevant statutory provisions at the material time.
64. Moreover, even if it is considered desirable that the “spirit” of the 1997 regulation be observed in the case of “suspects”, as opposed to persons who are merely “of interest”, who are being interviewed while voluntarily present in a Garda station, and we express no definitive view on that issue in circumstances where it has not been fully argued before us, we consider that we would in any event have no basis for interfering with the trial judge’s finding of fact that the appellant in this case was a person of interest and not a suspect. There was clearly evidence on foot of which she could have arrived at the decision she did. She heard the evidence first hand, heard the relevant witnesses being cross-examined, and was best placed to form a view as to their credibility and reliability. She had evidence from two Detective Gardaí that the appellant was not at that point a suspect and was merely a person of interest. That was evidence she was entitled to accept and to act upon.
65. Finally, we consider that in any event no question of any unfairness to the appellant arises from the circumstances in which he was interviewed, even though the interview was not video-recorded. The appellant had had the benefit of legal advice before submitting to being interviewed, and his solicitor was present throughout. He acknowledged both orally and in writing that he was there voluntarily, he was cautioned before it began, and he accepted the record was accurate There is no basis in the circumstances for suggesting that the circumstances of the interview were unfair, that the appellant’s rights were not respected, or that what he said was involuntary. In our view the trial judge was entirely right to admit this evidence.
66. In the circumstances we reject Ground of Appeal No. (iii)
Ground (iv) – Interviews during detention from the 11th to 15th of December 2012
67. A voir dire on the lawfulness of the appellant’s arrest and detention commenced on the 9th of May 2014 and lasted until the 16th of May 2014. Evidence was heard from 29 Garda witnesses and one civilian. The defence objected to the admission of all memoranda of interviews conducted while the appellant was detained on the basis, inter alia, that the interviews and admissions made therein were not voluntary and not reliable and that a purported third extension of the appellant’s detention was unlawful.
68. The defence submitted that there was a reasonable doubt as to the voluntariness of the appellant’s confessions in circumstances where he had been supervised by interviewing Gardaí during cigarette breaks directly before, and/or in between, interviews. The learned trial judge ruled as follows:
“While clearly not best practice, the Court can understand the convenience of having the interviewers supervise both cigarette breaks, that is prior and subsequent to interview. This fact alone does not give rise to an inference of inappropriate behaviour. In fact, the most striking element of this part of the application is that there is not a shred of evidence of inappropriate behaviour by the investigators. It is of course open to an accused in a voir dire to give evidence as to how his will was overborne. While suggestions have been made by counsel for the accused as to threats made, particularly in the period leading up to interview 6, the Court has absolutely no evidence of such behaviour. The Court is not willing to draw an inference of nefarious practices in the absence of primary evidence of the same. The evidence that is available to the Court supports the voluntariness of the accused’s admissions. Throughout his detention the accused appears to have been what I think one witness described as “a talker”. He appears to have engaged with every garda who supervised his smoking breaks, be they investigators or not.
…
The very next morning following an interview and during a smoke break he made comments to Detective Garda Deegan and Detective Garda Cooke which each of them noted separately.
…
He stated that if he did admit he’d be saying he was the only one there, that he drove and pulled the trigger. He went on to say that, “You don’t pull a trigger intending to maim or scare someone. You do it with the intention of killing someone.” It was a case of kill or be killed.”
69. In this appeal the appellant criticises the ruling of the trial judge on the voluntariness issue. It was submitted that in order to be satisfied beyond a reasonable doubt that there was no undue influence or undue pressure or any oppression, the court had to be satisfied beyond a reasonable doubt that the evidence of the interviewing members was correct and that it could be relied upon. It was submitted that these criteria simply were not satisfied by the evidence available to the court of trial.
70. It was further submitted that the evidence adduced showed that there was a vast amount of contact between the appellant and interviewing members, the pattern of which raised a very real suspicion that it was for improper motives. That was said to be so particularly in light of the fact that the appellant had on previous occasions apparently displayed a willingness to speak about the investigation outside the scope of a formal interview.
71. It was further submitted that such were the conflicts in the evidence between prosecution witnesses themselves, and also between prosecution witnesses and the custody record, that the trial judge simply could not have been satisfied to the required standard that nothing untoward happened when the interviewing members supervised the appellant whilst he was taking cigarette breaks, and that they only engaged in such supervision for the reasons of convenience and expediency that they had suggested.
72. In response, counsel for the respondent reiterates the point made by the trial judge in her ruling, namely that while suggestions of impropriety were put, these suggestions were rejected and there was no actual evidence to the contrary. Moreover, it is pointed out on behalf of the respondent that the trial judge watched the most contentious interview being the one in which the principal admissions were made, namely interview no 7, and having done so observed in her ruling that:
“The atmosphere in the interview room is calm and relaxed throughout. The accused gives the impression of a man who has decided to tell his side of the story, not merely what he did but why he did it. In the course of the interview he yawns and stretches, he smiles on one occasion, occasionally he looks out the window, he fiddles with his clothes, puts his hands on his head. He confirms that there was no interference with him by the interviewers during the recent cigarette break.”
73. We are satisfied that the complaint concerning the trial judge’s ruling on voluntariness is untenable in the circumstances of this case. It was in accordance with the evidence. While there was a degree of inconsistency in the evidence of different witnesses, and between witnesses and the custody record, there was certainly evidence on which the trial judge was entitled to rely if she was prepared to accept it. Again, she heard the evidence first hand, she heard the witnesses being tested in the crucible of cross examination and was best placed to make evaluations of their credibility and reliability. We see no basis on which we could legitimately interfere with her finding on voluntariness.
74. The ruling of the trial judge admitting these interviews into evidence is also criticised on the basis that there were matters to which the appellant confessed but which in fact were not borne out by the objective evidence. It was submitted that these highlighted the unreliability of the admissions and statements made by the appellant during the course of his detention. Emphasis was placed principally on statements made by the appellant during the course of interview number 7 which directly contradicted the evidence of Dr. Cassidy, a witness Rachel Keating, Detective Garda Bergin, and certain telephone data placed in evidence.
75. In response, counsel for the respondent contends that the trial judge arrived at her view that it was proper to admit the evidence notwithstanding these inconsistencies, as she was entitled to do. She had not ignored them, but rather had acknowledged them stating that the fact that there were the inconsistencies between the accused’s evidence and that of other witnesses highlighted by counsel for the accused “is classically a matter for a jury to resolve.” For her part, however, the trial judge was satisfied to rule for the purposes of the voir dire that the admissions were capable of being relied upon, and therefore ought properly to be admitted before the jury.
76. We can find no fault in the trial judge’s approach. She was entirely correct in suggesting that the highlighted inconsistencies were properly a matter for the jury to resolve, and we believe that she would not have been correct to rule them out on the grounds of alleged questionable reliability.
77. Finally, under this ground of appeal, there is a challenge to the trial judge’s ruling that the admissions in question were made while the appellant was in lawful detention. The challenge is based on the contention that the trial judge erred in holding that a third extension of the appellant’s detention granted by District Court, upon the application of Chief Superintendent Roche, was invalid. The case in that regard is that the impugned third extension was granted on the basis of the Chief Superintendent’s evidence which was based upon an incomplete briefing that he had received from subordinate officers involved in the investigation concerning the status of the investigation. In particular, it is complained that Chief Superintendent Roche had not been apprised of the fact that the appellant had begun to make admissions prior to the application for third extension of the appellant’s detention being made, and that therefore the District Court Judge’s decision to grant an extension had not been made on a sound factual basis. This, it was submitted, rendered the process entirely flawed and rendered the third extension of detention illegal.
78. Section 50 of the Criminal Justice Act 2007 (“the Act of 2007”) applies, inter alia, to a case of suspected murder involving a firearm – see s.50(1)(a) of the Act of 2007.
79. Subsection (2) of s.50 of the Act of 2007 provides:
(2) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person (in this section referred to as “the arrested person”) whom he or she, with reasonable cause, suspects of having committed an offence to which this section applies, the arrested person—
(a) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or
(b) if he or she is arrested in a Garda Síochána station, may be detained in the station,
for such a period or periods authorised by subsection (3) if the member of the Garda Síochána in charge of the station concerned has at the time of the arrested person’s arrival at the station or his or her arrest in the station, as may be appropriate, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”
80. Subsection (3) of s.50 of the Act of 2007 is lengthy, but the relevant parts of it for the purposes of this case are sub-subsections (a), (b), (c) and (g)(i) &(ii), which provide:
“(3) (a) The period for which a person may be detained pursuant to subsection (2) shall, subject to the provisions of this subsection, not exceed 6 hours from the time of his or her arrest.
(b) A member of the Garda Síochána not below the rank of superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding 18 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(c) A member of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding 24 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(g) (i) A member of the Garda Síochána not below the rank of chief superintendent may apply to a judge of the Circuit Court or District Court for a warrant authorising the detention of a person detained pursuant to a direction under paragraph (c) for a further period not exceeding 72 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(ii) On an application pursuant to subparagraph (i) the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 72 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.”
81. In this case, the appellant had been arrested under s.50(2) and was initially detained for six hours pursuant to s.50(3)(a). His detention was then extended for up to a further eighteen hours pursuant to s.50(3)(b) – (the 1st extension). It was subsequently extended for up to a further 24 hours pursuant to s.50(3)(c) – (the 2nd extension). It was then extended yet again by a District Judge at Cashel District Court for up to a further 72 hours pursuant to s.50(3)(g) – (the third extension). The latter is the extension under challenge.
82. The trial judge’s ruling in that regard was as follows:
“The final argument advanced on behalf of the accused, and I suppose it’s an alternative argument to the argument at 3, was that the further detention authorised by the District Court in Cashel at 5.02 pm on the 13th of December 2012 was invalid because the District Justice was not informed that the detainee had begun to make admissions, and therefore he did not have a complete account of what had happened during the course of the detention. Counsel for the accused submits that it’s not clear, we don’t know why Inspector — Chief Superintendent Roche who was making the application wasn’t aware of the fact of the admissions. And he did concede that were he aware he would have told the Court. But looking again at the chronology of the events, the admissions were made at an interview which concluded at 13.40. It is highly likely that the preparatory notes for Chief Superintendent Roche’s application were prepared in advance of that. And the suggestion that something different might have happened were the fact of the — the fact that Mr Power had begun to make admissions then made known to the judge is not clear to the Court. Clearly, even in the event of admissions being notified to the Court, there were still investigations to be carried out, and in fact the case submitted by counsel for the prosecution, the People at the suit of the Director of Public Prosecutions v. Terence O’Toole and James Hickey [1990 WJSC-CCA 1662] makes that very clear, where it is said at page 39: “The Court rejects the submission that once an accused has made a statement involving himself directly or indirectly in the crime for which he is charged, that that fact necessarily concludes that there is no necessity for his further detention for the proper investigation of the offence. It is not only the right but also the duty of gardaí investigating the crime of murder to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence or the person or persons accused of that crime. The taking of statements, whether exculpatory or inculpatory is only a part of an investigation. But in the opinion of this Court is most certainly not a full and proper investigation of the offence.” So, the Court is not persuaded that the furnishing of this information to the District Court would make a material difference to the order made by that Court. And the Court also notes that during the course of this hearing the accused was present at all times and he was represented by Mr Hayes, solicitor, who apparently cross-examined on — witnesses on his behalf, and it — certainly the accused knew he had made admissions. He had his solicitor present. If he thought that that was a material point it was open to him to address the Court on it. However, I do not consider that the furnishing of that information was likely to have made a material difference to the order made by the Court, and I also note that there is in fact in being a valid District Court order, which was made within jurisdiction and within the terms of section 50 as described.”
83. In this Court’s view the trial judge’s ruling was correct. Unlike the first two extensions, which involved administrative, or at most quasi-judicial, decisions by Garda officers, the third extension was qualitatively different, and was designed to be by the Oireachtas. It was a judicial decision by a court established under the Constitution, i.e., the District Court, which is a court of record. It was a decision based upon a court hearing at which all interested parties were present and represented, in which evidence was adduced, in which there existed an opportunity to cross-examine witnesses and test the evidence adduced, and in which interested parties had the right to be heard both with respect to the law and the facts. As provided for in the statute, the District Court’s decision was given effect to by a judicial warrant authorising the continued detention of the appellant. There is no suggestion that the warrant in this case was made other than within jurisdiction.
84. We do not consider that a judicial warrant of this sort, made within jurisdiction, is susceptible to challenge in the course of a trial on indictment in the manner in which the appellant seeks to do so in this case. As the trial judge clearly recognised, what she had before her was an ostensibly valid District Court order, from a court of record, that had ostensibly had been made within jurisdiction. The only legitimate means open to the appellant if he desired to seek look behind that warrant was to initiate judicial proceedings to condemn it on some justiciable grounds. There was ample opportunity for the appellant to do this as he personally would have known at all times at what point he had begun to make admissions. Moreover, even if he had never mentioned it to his solicitor, it would have been obvious to his solicitor when it was that he had begun to do so once the Book of Evidence was served. The appellant did not, however, bring judicial review proceedings, and there is simply no jurisdiction or scope for a trial judge, even in the Central Criminal Court (which is the High Court exercising its criminal jurisdiction), and obviously impossible in any Circuit Criminal Court case, to judicially review an order of the District Court within the four walls of a trial on indictment.
85. However, quite apart from this we consider the trial judge’s reasons for dismissing the misconceived challenge were valid in any event. The evidence actually put before the District Judge, even though he was not told that the appellant had begun to make admissions, was clearly sufficient in any event for the District Judge to have been satisfied that the appellant’s continued detention was necessary for the proper investigation of the offence for which he had been arrested. The interviewing process was clearly on-going and had not concluded. The case of The Director Of Public Prosecutions v O’Toole 1990 WJSC-CCA 1662 to which the trial judge referred was apposite, and the trial judge was correct in her decision in our assessment. We therefore reject this complaint also.
86. Accordingly, Ground of Appeal No. (iv) is dismissed.
Ground of Appeal No. (vi) – the admissibility of the XRY Report/Printout
87. During the course of the trial the respondent sought to introduce into evidence a printout of data (the “XRY report”) downloaded from the mobile phone and SIM card of the deceased using a software tool known as the XRY Forensic Phone Analysis System.
88. The evidence relied upon in support of the application came, inter alia, from Sergeant Mary Gilmartin who told that court that she was trained and qualified to operate the XRY Forensic Phone Analysis System, that she had received a Nokia mobile phone handset labelled BC 08 from Sergeant Brendan Carey (there was later evidence that Sgt Carey had recovered that handset from the kitchen of the deceased’s house where it was plugged in to charge), and that using the XRY Forensic Phone Analysis System she had on the 17th of October 2012 downloaded data from the SIM card in that handset, and further on the 18th of October 2012 had downloaded data from the mobile phone handset itself. Then again using XRY Forensic Phone Analysis System software she had generated a printout (the “XRY report”) covering a specified period, which she was exhibiting. This report or printout contained details of calls made and received over the period of interest as recorded on either the SIM card or the handset itself, as well as details of the dates and times of SMS texts sent and received in the period of interest, the numbers from which texts were received and to which they were sent, and a record of the actual text transmitted or received.
89. Under cross-examination, Sergeant Gilmartin accepted that she did not really know how the XRY Forensic Phone Analysis System worked:
“Q. Yes. I think your role essentially, Sergeant, was to get your device or programme, to plug it into the phone, get a printout and hand it on?
A. That is correct, Judge.
Q. Do you know how the software works?
A. Very vaguely, Judge, I’m not
Q. You wouldn’t purport to be an expert in that?
A. Absolutely not, Judge, I’m qualified in the operation of it.
Q. Yes?
A. And to make sure that it’s done correctly, but that is my sole function in relation to it.
Q. Certainly, you wouldn’t be able to help us as to how it actually operates?
A. No, Judge, I would not.
Q. Did you check the device time?
A. The only place that that is recorded is sometimes depending on the model of the phone, on the first couple of pages of the report, if you just give me a moment and I’ll just check and see if it was recorded on this, no, Judge, it’s not recorded on the download.”
90. Counsel for the appellant objected to the introduction of the XRY report. He submitted that in the absence of authoritative evidence as to the workings of the relevant software programme and phone system, the court could not be satisfied as to the admissibility of the printouts, whether as real evidence or as hearsay.
91. The trial judge was referred to R v Cochrane [1993] Crim L. Rev 48; The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468.
92. Counsel for the respondent contends that the printout was admissible as real evidence and that it was not necessary for Sergeant Gilmartin to know how the electronics of the phone, or indeed the analysis software, actually worked. His argument is essentially that mobile phone technology is now as ubiquitous as television and CCTV technology. Gardaí routinely download CCTV footage from crime scenes and give evidence that they have done so, and produce the download as real evidence, and it has never been suggested that a Garda doing so must understand how a video camera or a television actually works. The important thing is to be trained in the operation of such equipment and in how to download relevant data, which in this instance Sergeant Gilmartin was.
93. There were also subsidiary complaints that there was no evidence that the printout produced in court was the same as the one generated by Sergeant Gilmartin on the 17th and 18th of October 2012. It appears that a second copy or copies may have been printed out in April 2014 for production and use at the trial and the appellant complained that there was no evidence concerning the storage of the information on the laptop concerned between October 2012 and April 2014, nor any evidence that it had not been altered or tampered with during that period. That was in fact the position on the evidence when these subsidiary complaints were initially made, but due to circumstances arising later in the trial necessitating a re-visiting of the issue of the admissibility of the XRY report further evidence was heard which established that the designated laptop was kept in the incident room at Tipperary Garda Station, it was encrypted and access to it was limited to two persons, namely Sergeant Gilmartin and Garda O’Brien, both of whom gave evidence at the trial.
94. The trial judge rejected all of the appellant’s objections, and with respect to the primary objection ruled:
“Garda Gilmartin is a person trained in the operation of the she’s a qualified operator of the XRY forensic phone analysis system. She described it that’s essentially a computer program that forensically analyses and downloads the contents of mobile phone on to a computer. She described that it works on the phone and on the SIM card and on a variety of electronic products and she confirmed that the device has no or the XRY machine has no information about the device before it puts in its download. It’s a forensic system, so it extracts the information that is on the mobile phone. The Court considers the situation analogous to a radiologist giving evidence of an MRI scan or a CT scan or an X ray where it there is no necessity for the radiologist to know the intricacies of the machine that conducts the work in order to give evidence of what it produces and the Court holds that this is a similar situation. Garda Gilmartin is trained in XRY analysis and downloading and she has produced that. She has described the operation and function of the XRY machine and accordingly the Court holds that the it that the XRY reports are real evidence in the case.”
95. We consider that the trial judge’s ruling was correct. In the first instance we should state that we regard the case of R v Cochrane, relied upon by the appellant, of being of very limited assistance. That case concerned a prosecution for theft in circumstances where the defendant had gone in to a bank to lodge a certain sum to his account but due to an error by the bank teller a much larger sum was credited to his account. Though the defendant knew there had been an error, he withdrew monies to which he was not entitled from various ATM machines and spent it. In the course of his prosecution for theft the prosecution sought to have admitted into evidence certain computer print-outs and till rolls. The prosecution maintained that because there had been an inputting of instructions by the customer on the ATM keypad in each transaction of interest, that part of the procedure was akin to a typewriting process and the evidence to be derived from the till roll or printout recording it, that the prosecution wished to place in evidence was, to that extent, real evidence properly admissible before the court. There was also, however, evidence that each ATM was connected to a mainframe computer in a central location where data relating to transactions processed through the ATMs’ concerned was stored in the mainframe computer’s memory. None of the witnesses who called on behalf of the prosecution had any knowledge of the function or operation of the mainframe computer, none of them had any training or experience in operating it, and none of them was able to supply affirmative evidence that the mainframe computer was operating correctly at relevant times. The appellant had made the case at trial that there was a statutory prohibition on the admission of the print-outs and till rolls on any basis unless the conditions set out in s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) were satisfied, and in this case, the appellant maintained, they had not been satisfied. The trial judge had ruled against the appellant and had admitted the evidence.
96. S. 69 of the English Act of 1984 had provided:
(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown –
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; and
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.
97. The actual issue in the case before the Court of Appeal was whether, in the circumstances of the case, s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) did in fact apply, and if so, whether the pre-conditions to admissibility were in fact satisfied in the circumstances of the case. (We would observe in passing that s.69 of the English Act of 1984 was later repealed and replaced by s.60 of the Youth Justice and Criminal Evidence Act 1999. The position in the neighbouring jurisdiction since 1999 is that evidence, or the absence thereof, pertaining to the reliability of a computer system is now simply a matter that goes to weight.)
98. The Court of Appeal in R v Cochrane held that without authoritative evidence about the operation of the relevant machines it was impossible for the court to decide whether or not s.69 of the English Act of 1984 could have applied, and that it had no choice but to allow the appeal in those circumstances.
99. Accordingly, R v Cochrane is readily distinguishable from the circumstances of the present case, and we do not consider it that it provides very much assistance, save to the extent of noting that it appears to have been regarded by Kearns J, giving judgment for the Court of Criminal Appeal, in The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468, as providing support for the proposition that before a computer record can be relied upon on as real evidence, there ought to be authoritative evidence to describe the function and operation of the relevant computer.
100. The law in this jurisdiction, since The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468 is that records generated by computer and information technology systems, either mechanically or electronically, without human intervention, are admissible as real evidence, provided the court has evidence concerning the function and operation of the system in question. In simple terms what is required in that regard is evidence of what the machine does (as opposed to how it does it), and that it was operated (and prima facie was functioning) correctly on the relevant occasion. We are satisfied that Sergeant Gilmartin provided the necessary evidence in this case. She outlined what a computer operating the XRY Forensic Phone Analysis System does, she confirmed that she was trained to use that system and that she in fact did so, and that it was her function “to make sure that it’s done correctly”. It was implicit in her having stated that, that she was maintaining that she had operated the system correctly and also that, in so far as she was concerned, prima facie it was functioning correctly.
101. While it is, of course, always open to an accused to challenge the reliability of such records, we consider that evidence pertaining to reliability is a matter that goes to weight rather than to admissibility. We alluded earlier to an issue arising later in the trial that necessitated some re-visiting by the trial judge of her earlier rulings. This gave rise to a supplementary ruling which, for completeness, although no complaint is made about it on this appeal, we feel it appropriate to set out:
“The Court has been asked to revisit its ruling on the admissibility of information contained in an XRY download from the phone and SIM card of Shane Rossiter. In the course of the evidence on Tuesday the 27th of May it emerged that there were two different copies of the XRY report on the phone, one produced by Garda O’Brien, the telecoms liaison officer on the 16th of April 2014, and another report, which has been exhibited in the trial by Sergeant Mary Gilmartin, which was produced on the 22nd of April 2014. Garda O’Brien’s report is in chronological order, while Sergeant Gilmartin’s is in random order. Neither officer has been able to explain why there is a difference in the format between the two reports. Garda O’Brien has given evidence that there are regular updates of the software to allow the data to be presented in a more user-friendly fashion. He gave an example that the font could be changed for example. One such software update allowed what had previously been random entries to be presented in chronological order. He wasn’t sure when this update was received, but it was prior to the 16th of April. Neither Garda O’Brien nor Sergeant Gilmartin could explain how Sergeant Gilmartin was able to produce a report in the older random format six days later on the 22nd of April.
While the issue of formatting has not been resolved the evidence remains clear that once an XRY file has been created the content of that file cannot be manipulated or altered. It is retained on the hard drive of a designated XRY laptop, which is kept in the incident room in Tipperary Garda Station. It is encrypted and access is limited to the two witnesses who gave evidence. However many reports are produced in whatever format, the content remains the same. This is borne out by the two reports in different format, which have been produced in this trial. While the format is different the content is identical. The date of creation of the file is also identical, being in respect of the phone device the 18/10/2012 at 16:30:38.
Mr McGinn, on behalf of the accused man, points out to differences between the call data information and the XRY analysis. The Court considers the explanation given by Garda O’Brien is persuasive. The XRY analysis is limited to what is physically present on the phone. Call data can locate items that have been deleted. The fact that a call shows up on call data, which is not present on the XRY analysis, does not indicate an unreliability in the XRY analysis. Finally, the XRY reports in both formats show two calls were made from the phone at 16:46 and 16:57 on the 17th of October 2012. Garda, now Sergeant Gilmartin has given evidence that she did not make those calls. That of course does not mean that that the calls were not made. The phone at the time was in garda custody. There is evidence — there is no evidence that Garda Gilmartin had exclusive access to it. The evidence of Garda O’Brien is that the XRY designated laptop is kept in the incident room in Tipperary Garda Station. The Court notes that the XRY report on the SIM card was created at 17:05:25 on the 17th of October 2012, approximately one hour after the phone was handed to Garda Gilmartin and after the two calls identified were made. The Court remains satisfied beyond reasonable doubt that the content contained in the XRY report is real evidence and is admissible in the trial.”
102. In the present case, the trial judge had no concrete reason on the basis of the evidence she received to be concerned about the reliability of the XRY report. Such concerns as were raised at different stages by defence counsel were purely speculative, or not borne out on the totality of the evidence. In our view the XRY report was properly admitted.
103. We therefore dismiss Ground of Appeal No. (vi).
Grounds of Appeal Nos. (vii) and (viii) – the Corroboration Grounds
104. Prior to embarking upon her charge to the jury, the trial judge discussed with counsel the application of s.10 of the Criminal Procedure Act, 1993 (the Act of 1993) and the potential for circumstantial evidence that had been adduced in the case to amount to corroboration, and what she should say to the jury in that regard.
105. Section 10 of the Act of 1993 provides:
(1) Where at a trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.
(2) It shall not be necessary for a judge to use any particular form of words under this section.
106. Counsel for the respondent referred the court to the cases of The People (Director of Public Prosecutions) v Connolly [2003] 2 I.R. 1; The People (Director of Public Prosecutions) v O’Neill 1 JIC 2802 (Unreported, Court of Criminal Appeal, 8th January 2002; and The People (Director of Public Prosecutions) v Brazil [2003] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002); and he urged the Court to accept that certain circumstantial evidence relied upon by the respondent was capable of amounting to corroboration of the appellant’s confession, and to tell the jury that it was so capable although it would be a matter for the jury to assess whether or not it in fact corroborated it.
107. Counsel for the appellant argued in response that the circumstantial evidence that the respondent was relying upon was not in fact capable of amounting to corroboration as defined by the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, in the following terms:
“Corroboration in essence may be defined as independent evidence which implicates the accused in a material way in the offence charged.”
108. It was submitted that, in order to amount to corroboration, evidence sought to be relied upon has to be evidence, independent of the confession, which connects an accused with the crime. It was further submitted that the circumstantial evidence that the respondent was placing reliance on as being corroborative was dependent, to a greater or lesser extent, on the appellant’s admissions.
109. The circumstantial evidence in controversy was evidence that a car was used in the shooting of Mr Rossiter; the fact that not long after the shooting a burned out black Audi was found in a bog in the Nire Valley in Co Waterford giving rise to a suspicion that it was the vehicle used in the shooting; the fact that the appellant could be linked to a black Audi car, firstly through the CCTV footage from the Tesco garage, and secondly through evidence that prior to the shooting the appellant’s girlfriend was believed to have owned a Black Audi A4, and the fact that there had been an ostensible attempt to fabricate evidence that this car had been sold on prior to the shooting to a Mr John Byrnes, who could not be located, and who was believed not to exist.
110. The prosecution contended that this material was capable of providing corroboration in circumstances where, amongst the admissions made by the appellant in the course of being interviewed, were admissions that on the occasion in question he had had the use of, and had driven around in, a black Audi A4 motor car belonging to his girlfriend Pamela; that while in that car he had discharged a sawn off shotgun at Mr Rossiter; that he had subsequently burned the car in a mountainous area; and that contrary to previous assertions the Audi A4 had never in fact been sold, and that “I had people just believe that, that’s all”.
111. The appellant contended that such evidence was incapable of amounting to corroboration, relying on the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1.
112. There had been consideration during exchanges with counsel concerning whether s.10 of the Act of 1993 requires corroboration of the reliability of the confession or corroboration that the accused is implicated in the crime. In that regard, para 8.282 of McGrath on Evidence, (2nd Ed, 2014) (Round Hall Thompson Reuters: Dublin), was opened to the trial judge by prosecuting counsel. It succinctly captures the issue that was debated and in our view correctly states the law and bears reproduction in full:
8-282 The first question that arises in relation to s.10 is whether the warning it mandates is triggered by and relates to a lack of corroboration of the accused’s guilt of the offence or a lack of corroboration of the making of the confession. An argument can be made that the mischief that the section is directed at is the fabrication of confessions and, thus, the warning is directed towards circumstances where there is no corroboration of the making of the confession. This interpretation is supported by the wording used in subs. (1) which requires a warning when “evidence is given of a confession made … and that evidence is not corroborated”, i.e.,the evidence that has to be corroborated is the evidence of the making of the confession. Such a requirement would give a significant evidential impetus to the use of audiovisual technology to record interviews. However, the word “corroboration” is undoubtedly a term of art with a particular technical meaning, i.e. independent evidence that tends to implicate the accused in the commission of the offence. Thus, the use of that term indicates that the section is directed towards the risk of a miscarriage of justice that arises when the only evidence against an accused is that of a confession or inculpatory statement made by him. In any event, this question has been settled in favour of the latter view by the decisions of the Court of Criminal Appeal in People (DPP) v Connolly [ [2003] 2 I.R. 1] and People (DPP) v Brazil. [ [2002] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002)]
113. The trial judge obviously considered the issue with great care, taking the opportunity of availing of an intervening weekend before giving her ruling. Just before commencing her charge, and in the absence of the jury, she ruled:
JUDGE: Good morning. Now, in relation to the matters that we were discussing on last Friday as to the charge, it seems to me that this case stands or falls on the confession, that the desirability or what needs to be corroborated in a confession case is independent evidence of the truth and reliability of the confession, not of proof of guilt or of the commission of the crime, that the corroboration required by the section, having read the section and having considered Connolly, is that the the evidence that is sought, independent evidence that is sought, is independent evidence that tends to show the truth and reliability of the confession. Having come to that view, I do not I propose to limit myself to that aspect in relation to the confession and I propose to tell the jury that the circumstantial evidence is capable of providing independent confirmation of the truth and reliability of the confession. Because I have taken that view, I do not intend to rely on any potential lies told by the accused during his interviews. It seems to me that lies told during interviews are potentially corroborative of guilt of the offence and it would be confusing for the jury to have two addresses in relation to corroboration, one in relation to the confession and one in relation to guilt of the offence. I also take the views that since there isn’t direct evidence of the commission of the offence, that lies lies don’t lies told during interview would not necessarily corroborate the commission of the offence. So, I do not propose to direct the jury that if they find the that Mr Power lied in relation to the car, that that is corroborative of guilt, I am not going there. So, I will limit myself to the corroboration in relation to the confession and I hold that that corroboration is that the definition of corroboration of the confession is independent evidence that shows the truth or reliability of the confession.
114. Then in the course of her charge, the trial judge explained corroboration to the jury as being “independent evidence which confirms the truth and reliability of the confession” and went on to say “in this case, the circumstantial evidence, if you accept it, is capable of providing you with independent confirmation of the truth and reliability of material parts of the confession.”
115. The appellant submits that the trial Judge erred in failing to properly explain corroboration to the jury, in failing to distinguish corroboration as regards the reliability of the confession as opposed to the commission of the actual offence, in failing to instruct the jury that there was no corroboration of the actual commission of the offence and in failing to contextualise the items that might be capable of amounting to corroboration.
116. The trial judge’s phraseology, namely that corroboration is “independent evidence which confirms the truth and reliability of the confession”, is somewhat unorthodox, particularly viewed in the light of the passage just quoted from McGrath on Evidence, and also the ratio decidendi in Connolly, both of which were opened to her in extenso. However, in complete fairness to the trial judge, the likely source of her phraseology was an obiter dictum in Connolly where Hardiman J diffidently sought to suggest a possible approach to charging juries on s. 10 in future cases. His suggested model charge begins (at p.16 of the report) with the words:
“This case stands or falls on the confessions which the prosecution allege the accused made. Either you are satisfied beyond reasonable doubt that that confession is true and reliable, in which case you will convict, or you are not so satisfied, in which case you will acquit.”
117. There is an express reference here to truth and reliability, but the important nuance is that Hardiman J was referring in these introductory remarks to the overall burden of proof to be discharged by the prosecution, and not confining his remarks to how corroborative evidence may operate vis à vis a confession. In the present case, the trial judge adopts those words almost verbatim, stating:
“Now, essentially, at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.”
118. However, the trial judge appears not to have appreciated the nuance referred to, and continued:
“Because of the experiences, particularly in the 1970s and 1980s in this country, where undoubtedly false confessions were extracted, sometimes quite brutally from people, the law was changed in 1993 and since then the law has been that when reliance is placed on confession evidence, juries should consider whether or not there is independent confirmation of the truth and reliability of the confession. That’s it’s called in law corroboration. So, if reliance is being placed on a confession, you must consider whether or not there’s independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn’t and if at the conclusion of your analysis of the evidence you find there’s no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you’re not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you’re still perfectly entitled to convict as long as you are satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it’s absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent — what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
119. In contrast, Hardiman J’s suggested charge had continued:
“The law requires me to point out to you that there is no corroboration of the evidence of the confession. Corroboration means independent confirmation. In a case like this, it would mean some evidence independent of that of the gardaí who say they heard the accused confess, which you could fairly and reasonably regard as confirming the truth of the confession. There might have been forensic evidence placing the accused in the injured party’s house, which would certainly confirm the truth of the alleged confession. He might have been found in possession of the stolen property or he might have been identified by some person as the robber. On the other hand, there are cases which, of their nature, make it hard to find corroboration. You must consider what sort of case this is from the point of view of corroboration. When you are considering whether you can feel sure that the statement is true and reliable beyond reasonable doubt, you must ask yourselves whether the absence of any corroboration or independent confirmation of the statement should reduce your trust in it to the point where you are not confident of its truth beyond reasonable doubt. Since the earliest times, people faced with important decisions have sought to make their task easier by looking for independent confirmation of one view or another. It is very natural and prudent to do so, and very comforting if you find it. But if it is absent, the decision still has to be made. If it is absent where you would expect to find it, that fact in itself may affect the decision.
I am obliged to give you this warning because of a law passed by the Oireachtas in 1993, which says that I must advise you to give due regard to the absence of corroboration. It is essential that you do so. You must also bear in mind that, despite the absence of corroboration, you are perfectly entitled to convict if you are indeed satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without corroboration, merely that you should specifically consider the absence of corroboration and what weight, if any, you should give to this factor. Once you do this, your decision is a matter for your own good sense and conscience.”
120. It is certainly not the case that corroboration in the context of the requirement under s.10 of the Act of 1993 relates solely to the reliability of the confession – Connolly clearly establishes that. However, the trial judge neither suggested that corroboration in this context of s. 10 of the Act of 1993 should relate solely to the reliability of the confession, nor that it would be sufficient if it related to either the truth or reliability of the confession. Rather, she framed her definition in terms of there being two conjunctive requirements, namely that corroborative evidence should confirm both the truth and the reliability of the confession.
121. If a statement of admission, or any part of a statement containing an admission, is “true” then it implicates the accused in having committed the offence. To the extent that the trial judge charged the jury that this was a requirement she was correct. Whether she was also correct to tell the jury that for evidence to be corroborative it also had to confirm the reliability of the confession is doubtful. It certainly does not follow that simply because a statement is true that it is reliable. For example, an admission made by an accused while he is in a state of profound intoxication might well in fact be true, but it might not be regarded by a reasonable fact finder as being capable of being safely relied upon. However, we do not believe that it is the law that for evidence to be corroborative that it must tend to confirm both the truth and the reliability of a confession. If it does both, well and good. However, it must at least tend to confirm the truth of the confession. To suggest this is not to say that a jury need not be concerned about reliability. They must of course be concerned about reliability but not in considering whether evidence is or is not corroborative. Any concerns they may have in regard to reliability fall to be separately considered in the context of determining the weight, if any, to be attached to confessional evidence, notwithstanding that such confessional evidence may be corroborated by evidence suggesting it is true, in their deliberations on the ultimate issue of the whether the accused be guilty or not guilty of the offence with which he is charged.
122. However, to the extent that the trial judge in the present case, rightly or wrongly, instructed the jury that corroborative evidence should confirm both the truth and the reliability of a confession, this could only have inured to the advantage of the accused in the sense of making it more onerous for the prosecution to satisfy their burden. We consider that in the circumstances of the case no harm was therefore done by the judge’s instruction to the jury, even if unorthodox in formulation and not entirely correct.
123. For the avoidance of doubt in future cases, a correct understanding of corroboration, in the s.10 context and in other contexts, is well set out by McKechnie J in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, where he stated:
68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v. Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:
“… evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”
69. This dicta (sic) has been approved and applied by the Irish Courts on numerous occasions: see for example People (A.G.) v Phelan (1950) 1 Frewen 98 at p. 99 and more recently in People (D.P.P.) v. P.C. [2002] 2 I.R. 285, where this Court, confirmed (at p. 300) the following definition of “corroboration” as:
“… independent testimony or evidence which affects the defendant by connecting or tending to connect him to the crimes alleged. It is evidence which implicates him, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it” (pp. 297 to 298).
The reference to evidence being independent means independent of the evidence in respect of which corroboration is thought necessary. Such evidence also of course, must always be credible.
70. Thus, whilst evidence, in order to be corroborative, “does not have to directly prove that the offence was committed” (People (D.P.P.) v. Meehan [2006] 3 IR 468 at 491, para. 56), nor does it have to “corroborate the whole of the evidence of the witness who requires corroboration” (People (D.P.P.) v. Murphy [2005] 2 IR 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some “material particular”.
124. It is further complained that the trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration. We reject the first proposition without hesitation. The trial judge was clearly, and correctly in our view, of the belief that there was evidence capable of amounting to corroboration, though it was a matter for the jury as to whether it in fact did so. The jury were told that:
“…if reliance is being placed on a confession, you must consider whether or not there’s independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn’t and if at the conclusion of your analysis of the evidence you find there’s no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you’re not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you’re still perfectly entitled to convict as long as you are satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it’s absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent — what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
125. Save for the issue already dealt with concerning the definition of corroboration, this was otherwise an entirely correct and appropriate instruction. In addition, the jury were told that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.”
126. As regards contextualisation we have considered the transcript and are satisfied that the trial judge very comprehensively reviewed the evidence. The trial judge dealt with the evidence in four blocks or groups, namely direct evidence concerning the events of the night, direct evidence concerning the aftermath of the shooting, circumstantial evidence about events surrounding the shooting incident, and Garda evidence including the confessional material. The section of her charge devoted to circumstantial evidence runs to eleven pages of transcript and was detailed and comprehensive.
127. While she did not specifically isolate any piece or pieces of circumstantial evidence as being potentially corroborative and identify it/them as such, and it would have been better if she had done so, we nevertheless agree with the submission made by counsel for the respondent that in the circumstances of this case the jury would have had no difficulty in applying the generic instructions given to them by the trial judge in considering whether any individual piece of circumstantial evidence, or pieces of such evidence considered cumulatively, was or were in fact corroborative.
128. In the circumstances we reject Grounds of Appeal Nos. (vii) and (viii).
Ground of Appeal No. (ix) – repeated instruction to the jury that suggestions by counsel do not amount to evidence
129. In closing his case, counsel for the respondent told the jury in clear terms that “barristers do not give evidence.” In charging the jury the trial judge told the jury several times that suggestions by counsel do not amount to evidence. The appellant submits that this emphasised the failure of the defence to call any evidence thereby undermining the appellant’s presumption of innocence and right to silence.
130. We have no hesitation in dismissing this ground of appeal in limine. The trial judge’s instruction in that regard direction was correct in law and entirely appropriate. The jury were required to decide the case on the evidence and the evidence alone.
Ground of Appeal No. (x) – failure to instruct the jury that the rights of the accused take precedence over the rights of society
131. The appellant complains that trial judge told the jury in the introduction to her charge, that:
“…when crime is committed, even though there’s one person who or two people perhaps who are very directly affected, it is an offence against the whole of society. It isn’t just the person directly affected and it’s in society’s interest that crime be detected, investigated and prosecuted and so in this court, which is the Central Criminal Court, a branch of the High Court, every case is brought in the name of the people of Ireland.”
132. During requisitions, counsel for the appellant requested that the court highlight to the jury that if there was a conflict between the right of society to prosecute crime and the right of an accused person to have a fair trial, that an accused’s rights take precedence in circumstances where a fair trial is at all times paramount to retribution or obtaining a conviction.
133. It is complained that the trial judge did not re-visit the issue and that in failing to do so the trial judge erred.
134. The trial judge’s remarks seem to this Court to have been entirely apposite and appropriate, and we do not consider that they were objectionable in any way. Her remarks are being taken entirely out of context. The words complained of were spoken in the course of an explanation as to why the proceedings were being brought in the name of the People of Ireland. Nothing that the trial judge said, when considered in context, would have served to suggest to the jury that the right to a fair was to be subordinated to, or even ranked equally with, the society’s interest in the detection, investigation and prosecution of crime. We again would dismiss this ground of appeal in limine.
Ground (xi) – Evidence not in Dispute
135. The trial judge instructed the jury that as the arrest, charge and detention were not in dispute the members of the jury would not have to “trouble [them]selves with that”. Counsel for the appellant requisitioned her on this relying on the case of The People (Director of Public Prosecutions) v. DO’T [2003] 4 IR 286, submitting that her comments implied that where a matter was not in dispute the prosecution was relieved of its burden. The appellant contends that the trial judge did not revisit the issue and was in error in not doing so.
136. As counsel for the respondent has pointed out in reply, the trial judge did in fact offer, in effect, to revisit the matter in the course of the following exchange, and there was in fact subsequently a re-visitation albeit not in the extensive terms that counsel for the appellant had sought:
JUDGE: Well, I did before charging, Mr McGinn, suggest that I wasn’t going to do continuity evidence and I wasn’t going to do things that weren’t in dispute basically and I took it that that was agreed but do you want me to restate …
MR McGINN: No, I didn’t need the Court to remind the jury of those aspects of the case, but nevertheless the concern I have is that the jury may get the impression, as a result of what the Court said about the arrest, that if something hasn’t expressly been disputed or if there’s no difference, that therefore that there is some lifting of the burden on the prosecution and that the jury need to be told, in my submission, that each and every aspect of the case has to be proved by the prosecution, even if that aspect wasn’t contested or wasn’t challenged because it may be that for another reason the jury aren’t satisfied about it.
[Following other requisitions:]
JUDGE: Very well. In relation to I will recharge the jury in relation to the presumption of innocence in the line of that set out in the People DPP v. OT …
137. At the end of requisitions the jury was brought back and the trial judge re-addressed them, inter alia, in the following terms:
“JUDGE: Thank you. Now, ladies and gentlemen, when you retire to consider your verdict, counsel get to tell me where I went wrong in my charge to you. They’ve asked me to say certain matters to you and I propose to do so. First of all, I perhaps did not put sufficient emphasis to you on the issue or on the right of the presumption of innocence. That is a fundamental right in our criminal law. It is a constitutional right to be presumed innocent and it is it’s common to common law countries throughout the world that any accused person is presumed to be innocent. What follows from that presumption of innocence, that fundamental right, is the burden on the State, on the prosecution, to prove the offence? What arises from the presumption of innocence is that the burden is always on the prosecution to prove the offence and every element of it and to negative any defences which may appear to arise and they must do that, as I think I told you, that that proof of each element of the offence must be proved beyond reasonable doubt and so the as I say, I may not have put sufficient emphasis on it to you because I listed it with other rights that the accused has but it is a standalone fundamental constitutional right of every accused person to be presumed innocent and it follows from that that it is — the burden is always on the State to prove the case against the accused and to prove it beyond reasonable doubt.”
138. We are satisfied that the re-charge was adequate to allay any concern that, by virtue of the trial judge’s comments concerning the uncontroversial evidence, the jury might have been under the impression that where a matter was not in dispute the prosecution was relieved of its burden. The re-charge made it abundantly clear that proof of each element of the offence must be beyond reasonable doubt and that the burden of doing so rests at all times on the state
139. In the circumstances we dismiss Ground of Appeal No. (xi)
Ground (xii) – implicit indication that evidence of witnesses tendered by prosecution carried less weight than those directly examined
140. In her charge, the trial Judge stated that “[y]ou saw Mr Sammon tender a number of witnesses. He didn’t have any questions to ask them but they were offered for cross-examination.” The appellant submits that these comments appear to categorise the evidence of such witnesses differently to that of the Garda witnesses.
141. Counsel for the appellant requisitioned the court to “expressly tell the jury that those witnesses were prosecution witnesses, that they were called by the prosecution as being witnesses of truth and that their evidence was unchallenged and that given that the prosecution called that evidence, albeit that it was elicited by the defence, that the jury can rely on that evidence as being accurate if there is no challenge to it.”
142. The trial judge refused this requisition, stating:
“In relation to Mr Power senior and Ms Fullop, I don’t propose to tell the jury that they were called as witnesses of truth. No other witness was called as that they were prosecution witnesses. I think I have summarised their evidence fairly to the jury and to put an additional gloss on it that you seek Mr McGinn I think is not appropriate. The evidence of every witness has to be considered by the jury and assessed by the jury and to put an extra gloss that somehow this is of a higher class of evidence than other evidence that they heard is not, it seems to me, appropriate.”
143. We are satisfied that the trial judge’s reasons for not acceding to the requisition were cogent and rational and her ruling was one within her legitimate discretion. In any event, we are not persuaded that the concern raised by counsel for the appellant was a justified one. There was nothing in the trial judge’s remarks to suggest that the evidence of tendered witnesses elicited in cross-examination should carry less weight than those of witnesses who were not tendered and who were examined both in chief and cross-examined. The trial judge was merely stating the factual position that prosecuting counsel had had no questions for those witnesses and that they had simply been cross-examined by the defence.
144. We therefore also reject Ground of Appeal No. (xii)
Ground of Appeal No. (xiii) – failure to expressly direct the jury that the only evidence connecting the appellant to the crime was his confession
145. During requisitions, counsel for the appellant asked the trial Judge to remind the jury that the only evidence connecting the appellant to the crime was the confession, notwithstanding evidence that might be able to corroborate the confession.
146. However, this requisition was entirely misconceived as the trial Judge did in fact state in the course of her charge that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.” The proposition contended for could not have been put in clearer terms.
147. We therefore also dismiss Ground of Appeal No. (xiii) in limine.
Grounds of Appeal Nos. (xiv) to (xvi) – complaints re the trial judge’s charge and instructions re suggestions of Garda impropriety
148. During the course of requisitions, it was acknowledged by defence counsel that the trial judge had, in the course of her charge, indicated that the prosecution’s witnesses had for the most part accepted that it was not best practice for interviewing members of An Garda Siochána to have contact with an accused person or a detainee off camera, and also that the court had gone on to explain that the reason it was not best practice was that “it can lead to suggestions being made or questions being asked about what’s happening in – during cigarette breaks”. However, it was submitted that the trial judge should have gone further than that and explained to the jury that lack of compliance with the Custody Regulations not only allows suggestions of impropriety to be made but that it also “would allow impropriety to happen and that that is why the video recording regulations were brought in, to protect not only the guards from suggestions, but also to protect detainees from impropriety itself”.
149. The trial judge decided that her charge in this regard had been adequate and was not disposed to re-visit the issue with the jury. This was in circumstances where there had been no evidence adduced of any impropriety. There certainly had been suggestions of impropriety put to Garda witnesses, but these were entirely denied and the accused had elected not to give evidence. It was in that context that the trial judge stated to the jury in the course of her charge:
“Now, in the course of … cross examination, there were a number of serious suggestions put by counsel to the gardaí and suggestions of impropriety, suggestions of threats, that Mrs Fullop would lose her job and that his partner would lose her child. Suggestions as I told you at the outset are not evidence. Suggestions made by counsel are not evidence and that is not evidence in this case.”
150. We are satisfied that the trial judge’s decision not to revisit the matter with the jury was justifiable in the circumstances of there being no evidence of actual impropriety by Garda interviewers during off-camera contacts with the appellant. We therefore reject this complaint.
151. It was further complained that the trial judge “erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.”
152. The appellant submits that this evidential support was to be found in the fact that interviewing members supervised cigarette breaks on numerous occasions coincidental to the interviews; that excuses proffered in relation to man power issues and convenience did not appear to stand up; and that there was contradictory evidence given by different Gardaí as to the reasons why best practice was not adhered to.
153. The trial Judge refused to readdress the jury on these matters.
154. We have reviewed the transcript and are satisfied that the trial judge reviewed very comprehensively the evidence given both in chief, and in cross-examination, by witnesses relevant to this ground of appeal. It is true that she did not, to use counsel’s phrase, “itemise” or list out to the jury matters ultimately relied upon by the defence as supposedly providing evidential support for suggestions of impropriety. However, it again requires to be re-iterated that there simply was no evidence of impropriety, merely suggestions thereof, and counsel’s suggestions no matter how frequently re-iterated are not evidence. We are satisfied that the trial judge’s decision not to re-charge the jury on foot of this requisition gave rise to no unfairness and it was decision that was within the legitimate range of her discretion and that she was entitled to make.
155. Yet another complaint relates to the judge’s unwillingness to accede to a further requisition:
MR McGINN: I would ask the judge sorry, I’d ask the Court to direct the jury that if they have a reasonable doubt about the propriety of the cigarette breaks for the guards, then they cannot be satisfied beyond a reasonable doubt of the reliability of the confession.
JUDGE: No, because even if there was impropriety, they could still accept the reliability of the confession. The test is whether it’s voluntary and I think it it’s over stating if I said that I could also say that if even if you thought the guards acted inappropriately, but still thought the confession was voluntary, you can act on it, so by I won’t do either I think is the fairer course.
MR McGINN: I’m in the Court’s hands.
156. The respondent has submitted that the trial judge’s approach was sensible, was correct in law having regard to The People (Director of Public Prosecutions) v Quilligan (No 3) [1993] 2 I.R. 305, and an appropriate decision rendered in the legitimate exercise of her discretion. We agree.
157. We are therefore not disposed to uphold Grounds of Appeal Nos. (xiv) to (xvi).
Ground (xvii) – allowing the jury to view CCTV footage in open court in the appellant’s presence
158. During deliberations the jury requested to view CCTV footage taken from the Tesco petrol station and also recordings of certain interviews. Counsel for the appellant expressed dissatisfaction that an edited disc had not been prepared by the respondent in anticipation of such a request that would have allowed the jury to consider it alone in the jury room. Alternative arrangements were not possible however. Counsel further expressed particular concern at the fact that the jurors were effectively being invited to compare a person visible in the footage to the appellant sitting opposite them at a time when the evidence had finished. This, it was submitted, unfairly prejudiced the appellant, allowed an issue to be re-opened after all the evidence had finished and allowed the jury’s deliberations to be impinged upon.
159. Counsel for the respondent pointed out that the jury had already been observing the appellant for 21 days and were well familiar with his appearance. Moreover, the video from the Tesco Petrol station had already been shown during the prosecution case, with the appellant present in court, and without objection, so the jury had already had an opportunity to make the suggested comparison about which concern was now being expressed. There was nothing wrong with the jury making such a comparison, if indeed they did so. The essence of real evidence is that it is evidence that the members of a jury or other fact finding tribunal can examine and assess for themselves using one or more of the five primary human senses, namely: sight, hearing, touch, taste, and smell.
160. We have considered the position and are satisfied that the procedure was not unfair to the appellant in circumstances where the same procedure had been followed without objection during the prosecution case.
161. We do not consider that the jury’s deliberations were impinged upon in any way. What was done was done at the jury’s express request. A jury is entitled in the course of its deliberations to ask to see again any exhibit that was placed in evidence. There was no new evidence, merely a further viewing of CCTV footage, which was real evidence, already adduced and exhibited in the course of the trial.
162. We therefore dismiss Ground of Appeal No. (xvii)
Conclusion:
163. We are satisfied that the appellant’s conviction is safe and that his trial was satisfactory. In circumstances where this Court has not seen fit to uphold any of the appellant’s seventeen grounds of appeal, we dismiss the appeal against conviction
DPP v Dolan
[2007] I.E.C.C.A. 30 (May 3, 2007)
JUDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007.
This is an appeal brought by the applicant following his conviction in the Central Criminal Court on 30th March, 2006, on one count of rape of M.G., which said rape included anal rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and one further offence of assault against the said M.G. contrary to s. 3 of the Non-Fatal Offences against the Person Act, 1997. Both offences are alleged to have occurred during the course of the same incident which occurred in the early hours of the morning in a hostel in Dún Laoghaire on 13th March, 1999.
By way of background, the complainant alleged that she lived in Limerick and had travelled to Dublin by train the previous afternoon. It was her intention to visit her sister who lived in London and, for that purpose, she intended boarding the ferry in Dún Laoghaire on the evening of 12th March, 1999. Being unsure of directions when she arrived at Heuston Station, she approached the applicant to ask for assistance. In the course of the conversation, the applicant informed her that he was also going to Dún Laoghaire and would accompany her there. She decided to go for a few drinks with the applicant at Heuston Station as a consequence of which, by the time they arrived in Dún Laoghaire the complainant had missed the ferry and the next sailing was not until the following morning. At the instigation of the applicant, they checked into a nearby hostel for the night. The complainant gave evidence that the applicant made the arrangements at the hostel and informed her there was only one room available. Both parties went up to the room for a short period and then went to a local pub, from which they returned some hours later. On returning to the hostel, the keys of the room were collected at the desk and they both went upstairs. The complainant gave evidence that as she was about to go asleep in a separate bunk, the applicant appeared naked before her, proceeded to take her clothes off, and then forced both oral, vaginal and anal sex upon her, notwithstanding violent resistance on her part. A member of staff who was working in the hostel on the night in question gave evidence of hearing shouting and screaming emanating from the room and, on entering the room was requested to contact the gardaí by the complainant who at that time was alleging that she had been raped. The gardaí were duly called and the court heard evidence from various members of the gardaí who attended at the scene. Part of that evidence included testimony from Garda Orla Cooper, who conducted a physical examination of the complainant in the bathroom of the hostel and who told the court that she observed bleeding in the region of the anus of the complainant and extensive bruising on both buttocks. However, the complainant declined to make a complaint, or to permit a formal medical examination at that stage. She also initially furnished a false name. The following morning the complainant continued her journey to England from where she returned the following day, apparently heavily under the influence of alcohol. She then made a complaint to the gardaí and was medically examined. Some bruising in and around the anal area was noted.
In the course of the trial, the learned trial judge acceded to an application made by the defence, pursuant to s.3 of the Criminal Law (Rape) Act, 1981, to permit cross-examination of the complainant in relation to her prior sexual history.
At the conclusion of the case for the prosecution, counsel for the applicant indicated that he did not propose going into evidence. He then invited the learned trial judge to give the “corroboration warning” in respect of the complainant’s evidence, as provided for by s. 7(1) of the Criminal Law (Rape) (Amendment) Act, 1990.
In the course of making this application, counsel for the applicant, Mr. John Phelan SC, advised the learned trial judge that there was agreement between the prosecution and the defence, that there was no material in the case capable of amounting to corroboration such as is required in Irish Law. This Court is not concerned with any issue as to whether such agreement was appropriate on the state of the evidence and the appeal is solely concerned with the manner in which the trial judge dealt with the application to give the warning to the jury.
The submission and ruling were as follows:-
Mr. Phelan: “Just to advise your Lordship, number 1, I do not propose going into evidence, my Lords; number 2, I have had this brief discussion with Mr. Comyn and I would submit in this matter that there is no corroboration in the proceedings and I would be asking your Lordship in the fullness of time to give the warning, in fact, which is discretionary of course, to the jury on the question of accurate corroboration.
Judge: Well, Mrs. Justice McGuinness has said that the warning is demeaning of women.
Mr. Phelan: Mrs. Justice McGuinness may say that, but I had a very interesting experience before the Court of Criminal Appeal two years ago, my Lord, where they took a very different view on the matter.
Judge: Well, if the Court of Criminal Appeal want to overrule the laws passed by the Oireachtas that is entirely their business.
Mr. Phelan: I hear what your Lordship says, however, having regard to the judgment of Mr. Justice Murphy in that particular matter.
Judge: Who was on the Court?
Mr. Phelan: Mr. Justice Murphy, if memory serves me correctly
Judge: Which Mr. Justice Murphy?
Mr. Phelan: The ex, retired (Mr. Justice Murphy) and Mr. Justice Diarmuid O’ Donovan and Mr. Justice- he is from Cork but his name slips my mind for the moment, my Lord- O’ Leary, Mr. Justice O’ Leary and they were all very strong in their view that even though a judge …the facts of the case were very simple. I appealed at an early stage to the High Court at the request of the trial judge Mr. Justice O’ Caoimh, that I would be asking him to give a discretionary warning at the appropriate time; it’s absolutely not and didn’t arise as far as he was concerned. Taking his word, I left it at that and I was wrongly criticised for raising the matter yet again at the appropriate time and in fact they went so far as to say that in the event that defence counsel didn’t do it, the prosecution should. So that is how it stands. Having regard to that fact and particularly, I submit there is no corroboration in this matter whatsoever.
Judge: I am not taking issue with you on that, there is no corroboration.
Mr. Phelan: I would ask your Lordship to exercise your discretion in this matter.”
Ruling
Judge: “Well I am exercising my discretion by not doing it. If the Court of Criminal Appeal wants to reverse the Oireachtas that is entirely their business.
Mr. Phelan: May it please your Lordship. Very good.
Judge: Do you want to say anything about this Mr. Comyn?
Mr. Comyn: I concede that I looked over some case law, my Lord, since yesterday and I am satisfied that anything that might be corroborative- it would be dangerous to accept it as being corroborative.”
Before proceeding further, it must be said that the transcript record of this submission may contain some omissions or inaccuracies. Nonetheless the essential grounds upon which the learned trial judge appears to have relied in making his ruling consisted only of:-
(a) his belief that Mrs. Justice McGuinness had, in some prior judgment, indicated that to give such a warning was “demeaning” of women and/or
(b) that the Court of Criminal Appeal, in some judgment delivered by it in relation to the warning issue, was seeking to “overrule the laws passed by the Oireachtas”.
Decision
Section 7(1) of the Criminal Law (Rape) (Amendment) Act, 1990 provides:-
“Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this section, be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given the warning, and accordingly any rule of law or practice by virtue of which there is such a requirement as aforesaid is hereby abolished.”
Counsel for the prosecution submitted that the intent and effect of s. 7(1) of the Criminal Law (Rape) (Amendment) Act, 1990 was to abolish any rule of law or practice which imposed an obligation on a trial judge in sexual offences to warn the jury of the dangers of convicting where there was no corroboration of the complainant’s evidence. In consequence, counsel submitted that, since the passing of the statute, cases of this nature should be treated the same as any case which does not require a corroboration warning so that the omission of a warning should be the norm.
In so submitting, counsel placed considerable reliance upon the judgment of Keane C.J. and Director of Public Prosecutions v. Wallace (unreported, Court of Criminal Appeal,, 30th April 2001) when he stated (at p 6):-
“…as this court has point out in the judgment delivered by Mrs Justice Denham on 1st February 2000 in the case of People (DPP) v. J.E.M., the express legislative provision for the abolition of the mandatory warning, if I can call it that, must not be circumvented by trial judges simply adopting a prudent or cautious course of giving the warning in every case where there is no corroboration or where the evidence might not amount, in the view of the trial judge, to corroboration. That would be to circumvent the clear policy of the legislature and that, of course, the courts are not entitled to do.”
In the People (Director of Public Prosecutions) v. William Ferris, unreported, CCA, 10th June, 2002), Fennelly J., having cited the above passage, noted that the court in Director of Public Prosecutions v. Wallace had:
“also referred with approval to the judgment of Lord Taylor CJ in Re Makanjuola [1995] 3 All ER 730 laying down guidelines for the exercise by trial judges of their discretion. The following, taken from p.732, appears useful for the purposes of the case:-
‘Whether as a matter of discretion, a judge should give any warning and, if so, its strength and terms must depend upon the content and manner of the witness’s evidence and the circumstances of the case and the issues raised the judge will also consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence’
The question of whether a jury should be warned about the danger of convicting on the uncorroborated evidence of a complainant being, as already stated, a matter for the exercise of discretion by the trial judge, this court should not intervene unless it appears either that the decision was made upon an incorrect legal basis or was clearly wrong in fact.”
While a number of other authorities were referred to by counsel on both sides, both in oral and written submissions, counsel for the respondent did not quarrel with or take exception to the suggestion that no legally valid reason was given by the learned trial judge for the particular ruling which he made. Neither counsel was in a position to assist the court in relation to any prior case or judgment where Mrs. Justice McGuinness is alleged to have made the comments attributed to her by the trial judge. The members of the Court are also unaware of any such utterance by the distinguished judge in question.
Equally, the remarks of the trial judge to the effect that this Court in the present, or indeed in any prior case, may have sought to “overrule the laws passed by the Oireachtas” can only be described as remarks which are inappropriate and without foundation, and indeed remarks which counsel for the respondent has not sought to justify in any way.
This court is therefore left in the position that, while a ruling of considerable significance was made in the course of this case, it cannot deduce from anything in the ruling of the learned trial judge that there was a reasoned basis for his decision not to give the warning. The Court would stress that during the course of a trial it cannot be expected that the trial judge will give an elaborate judgment on every legal issue which arises for his ruling, but every important ruling must at least disclose a decision judicially made, that is to say, one which is reasoned and based on legal principle. Regrettably, the ruling in the present case can not be seen as meeting either requirement. Furthermore, the ruling was one of considerable significance in the context of the trial as a whole, given that the verdict of the jury was to convict the applicant of anal rape but to acquit him of the other rape charges. As counsel for the applicant pointed out, if it was the view of counsel on both sides and of the judge himself that there was no corroboration in this case (and the Court is expressing no view of its own on this point), the charge to the jury should have made this clear. The failure in that regard gave rise to an apprehension that the jury treated the evidence of bleeding as providing corroboration sufficient to convict.
In the circumstances, this court cannot regard the conviction as safe. It will accordingly set aside the conviction and direct a retrial. The Court will dismiss the appeal against the assault conviction but will consider an appeal against severity of sentence in early course.
The People (DPP) v. Mulvey
McCarthy J.
[1987] IR 503
C.C.A.
McCarthy J.
16th March 1987
The applicant was convicted of rape; he did not deny having sexual intercourse with the prosecutrix on the night and at the place in question, in his motor car which was parked on the road on which the prosecutrix lived. The real issue in the case was whether or not the prosecutrix had consented to having sexual intercourse with the applicant. The prosecution tendered the evidence of the prosecutrix as to the event itself and, as corroboration on this issue, the evidence of the sister and brother of the prosecutrix, to whom she complained of the alleged rape, as to her demeanour and generally distressed condition. The prosecutrix was seen by her sister within a very short time after the alleged rape and by her brother within a relatively short time. She was also seen some five hours later by Dr. Maura Woods at the Rotunda Hospital, and Dr. Woods, amongst other things, testified as to the distressed condition in which she found the prosecutrix. To each of these witnesses the prosecutrix stated that she had been raped. The trial judge left to the jury the question of whether or not the distressed condition as so described constituted, in the minds of the jury, corroboration of the evidence of the prosecutrix on what was the real issue ” consent or no consent. His directions to the jury, to which later reference will be made, contained an elaborate dissertation on corroboration itself, but made no reference to the fact that the corroboration alleged in the instant case was a description of a distressed condition apparent at the time of making a complaint of rape, the argument about which has been the real ground of appeal advanced in this court. In the course of a discussion before the charge by the trial judge, no such suggestion was made on behalf of the applicant nor was any requisition to that effect made at the conclusion of the judge’s charge. Despite this circumstance, having regard to the gravity of the charge, the possibility that injustice might be caused, and there being no opposition by counsel for the Director of Public Prosecutions to this ground of appeal being advanced, the court has entertained this argument in full.
The argument is that, since corroboration must, so to speak, stand on its own feet, the description of a distressed condition consistent with earlier rape cannot be treated as corroboration if it is part and parcel of a complaint or, if it may be so treated, must be given so little weight as to be of no significance, and a jury must be directed accordingly. Where the distress is associated with a complaint, it is said, then it should not be treated as corroborative; to be corroborative it must have an existence or life of its own.
Counsel for the applicant referred the court to the following decisions both of this court and its predecessor:” Attorney General v. Lennon (Unreported, Court of Criminal Appeal, 5th May, 1925) cited at Sandes Criminal Practice Procedure and Evidence in Éire ” 2nd Ed. 138; Attorney General v. Corcoran and Donoghue (1929) 63 I.L.T.R. 145; Attorney General v. Linehan [1929] I.R. 19; Attorney General v. O’Sullivan [1930] I.R. 552 at 558; Attorney General v. Levison [1932] I.R. 158 and Attorney General v. Cradden [1955] I.R. 130 at 138.
Counsel for the applicant also referred to the following English cases:” R. v. Redpath (1962) 46 Cr. App. R. 319; R. v. Knight (1966) 50 Cr. App. R. 122; James v. R. (1971) 55 Cr. App. R. 299; R. v. Wilson (1974) 58 Cr. App. R. 304; R. v. Chauhaun (1981) 73 Cr. App. R. 232; R. v. Luisi [1964] Crim. L.R. 605; R. v. Suddens [1964] Crim. L.R. 606; R. v. Ohoye [1964] Crim. L.R. 416 and R. v. Zielinski (1950) 34 Cr. App. R. 193.
In Attorney General v. O’Sullivan [1930] I.R. 552 a sodomy case, Kennedy C.J. stated at p. 558:”
“The state of distress of the boy as he came from the house, proved by the Civic Guard and admissible as part of the res gestae,is (but his complaint is not) further evidence in corroboration.”
The critical portion of the evidence, cited at p. 555, appears to be:”
“Soon afterwards the boy came out of the house again in tears, and started homeward, when he met a Civic Guard, who, seeing the boy in evident trouble, stopped him to enquire the cause, and, upon hearing the reasons stated, followed the matter up with promptitude and efficiency.”
In that respect the facts are rather similar to those in R. v. Redpath (1962) 46 Cr. App. R. 319 where the only authority on evidence of distressed condition cited to the Court was R. v. Zielinski (1950) 34 Cr. App. R. 193. In Attorney General v. Lennon (Unreported, 5th May, 1925) an instance of evidence from an accomplice on a charge of feloniously receiving stolen goods, at p. 138 Mr. Sandes cites from his own manuscript notes taken in court in his book Criminal Practice Procedure and Evidence in Éire Sandes 2nd Ed.:”
“It is obligatory on the part of the judge expressly to caution the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, that they must search for independent evidence, other than that of the accomplice, which confirms in some material particular not only his evidence that the crime has been committed, but also that the prisoner committed it, and that if they fail to find such corroboration they should not convict him, although within their province to do so. In the absence of such a warning, and in the absence of substantial corroboration, the conviction will be quashed. Where a proper warning has been given the court will not quash the conviction merely upon the ground that the evidence of the accomplice is uncorroborated, but in considering whether the conviction should stand it will review all the facts of the case, bearing in mind that the jury had the opportunity of hearing and seeing the witnesses, and if it thinks the verdict unreasonable, or one that cannot be supported, having regard to the evidence, it will quash the conviction. If the court is of opinion no substantial miscarriage of justice has actually occurred it will dismiss the appeal (recte application).”
In Attorney General v. Levison [1932] I.R. 158, an abortion case, the Court emphasised the nature of the warning required in the absence of evidence corroborating an accomplice and at p. 167 made a comment which this court would emphasise:”
“It is not the province of this Court, nor has it the right, to re-try questions that have already been tried by a jury. Our duty is to see that the jury are properly instructed in point of law, that the nature of the questions which they have to try and of the evidence relevant thereto is clearly and sufficiently explained to them by the trial Judge, and that the evidence before the jury is legally sufficient to support their findings. If these conditions are fulfilled and no other sufficient reason appears for disturbing the verdict, then, in the opinion of this Court, the verdict of the jury must stand, even though the Court, if it were competent to try the question of fact, might have arrived at a different finding from that of the jury. The only question in this case is as to the legal sufficiency of the evidence to support the verdict. It is clearly established law that a jury, after the warning, may act on the uncorroborated testimony of an accomplice. Accepting this principle the Court is of opinion that the evidence in this case was sufficient to support the finding of the jury, and sees no reason for holding that the trial was unsatisfactory or that there is any other sufficient ground for interfering with the verdict.”
In The People (Attorney General) v. Cradden [1955] I.R. 130, the charge was one of indecent assault on a girl of eleven years of age. Maguire C.J. stated at p. 138:”
“As pointed out by Sullivan C.J. in the first-named case (Williams) the practice in England since the Court of Criminal Appeal has been established has been to give a warning in cases of indecent assault. There appears to be no authority in this country directly on the point. It appears, however, to be the accepted practice here to give the warning in such cases. This Court is unable to see any reason why a warning should not be given in indecent assault cases. The reason why it has come now to be a rule of practice with the force of a rule of law in cases of rape and carnal knowledge that a warning should be given seems to apply with equal force to cases of indecent assault.”
Later, at p. 141, the Chief Justice said:”
“In our opinion, therefore, however it be phrased, the warning to be given should convey to a jury in unmistakable terms the danger of acting upon the unconfirmed testimony of a prosecutrix if that testimony stands alone.
We wish, however, to emphasise that the degree and gravity of the warning called for may vary with the degree and gravity of the risk involved in accepting the evidence which requires corroboration. It will be for the trial Judge in each case to measure the strength of the warning having regard to cases such as this to what Hale in the passage cited by the Chief Justice in Williams’ Case calls “concurring circumstances which give greater probability” to the evidence of the prosecutrix.”
In the instant case, in the course of his directions to the jury, the trial judge, amongst other things, stated:” “In a sexual case like this the law is that it is dangerous for the jury to convict even if they believe the evidence of the complainant, that is the lady, unless there is corroboration. Whether there is corroboration is a matter for the jury. The judge has to decide whether there is any evidence capable of being considered corroboration. If he thinks there is not he tells the jury there is no corroboration and warns them that it is dangerous to convict because there is no corroboration but tells them that in certain circumstances they may convict. But if the judge considers that there is some evidence which may be corroborative then he tells the jury what that evidence is and leaves it to the jury to decide whether they accept that evidence and also whether they regard it as corroboration. So bear in mind, even if you have no doubt the lady did not consent, that the defendant knew that or was reckless, that you are not entitled then to convict. You have to consider the question of corroboration, its presence or its absence. And remember if there is no corroboration it is dangerous to convict. But if there is no corroboration what is the law? I am going to read you a passage from Mr. Archbold’s well-known book on the Criminal Law, 42nd edition, chapter 16, page 1142.
1613: ‘The Judge must use clear and simple language that will without any doubt, convey to the jury that there is a danger of convicting on the complainant’s evidence alone. The jury should then be told that bearing that warning well in mind, they must look at the particular facts of the case and if, having given full weight to the warning that it is dangerous to convict, they come to the conclusion that in the particular case the complainant is without any doubt speaking the truth, then the fact that there is no corroboration does not matter, and they are entitled to convict . . . The strict warning should not be watered down.’
I will come back to this but perhaps it would keep the matter in better order if I referred you to the evidence which it is for you to say may amount to corroboration or may not. What is corroboration? We are talking about corroboration of the lady’s evidence. Corroboration means confirmation from another witness other than the lady herself that her evidence is true. Corroboration does not mean that every word of her evidence is confirmed but if the evidence relied upon as corroboration confirms in a significant way, in a material way, the girl’s story, then the jury are entitled to regard that as corroboration. In this case the only possible corroboration of the girl’s story is the evidence of her sister and brother and Dr. Woods as to her condition in the hours following what occurred between her and the defendant . . . The law regards
evidence of a distressful condition in a lady in a sexual case as being capable of constituting corroboration but the law cases seem to say that it is rather weak corroboration but nonetheless the jury may say that it does amount to corroboration. You must, however, consider when considering whether it is corroboration, what points can be made for the defence. The defence says that in this case the young lady was a virgin and she lost her virginity unexpectedly; they say there is no question that when she was going out that night that she had no intention of losing her virginity. The defence says she took some drink although she was by no means under the influence of drink to any great extent and she allowed this young man, much younger than herself, to be intimate with her and allowed him to go too far and they had sexual connection and that she was disgusted with herself and that it was that that put her into the distressful condition that her brother, sister and Dr. Woods found her in. They also make another point and that is that she rather liked the young man, the defendant, and that when he made it clear to her at the end of the night that he was not going to see her again and rather rudely told her to go off using a rude word that that upset her greatly because she, the defence say, wanted to meet him again and the defence say that that, as well as losing her virginity, was the reason she was in the distressed condition she was in when her brother, sister and Dr. Woods saw her. It is for you to bear in mind whether that evidence of the brother, sister and Dr. Woods corroborates the young lady’s story in this case. Do not treat it as corroboration unless you are satisfied beyond all reasonable doubt that it is corroboration. In other words if you think it is possible that the reason why she was so distressed was that she had lost her virginity and/or because the young man rejected her, if you think it was possible, just possible, that that’s why she was in the distressed condition, then act on the basis that there is no corroboration. In any event you must remember this: whilst the law is that if there is no corroboration it is dangerous to convict, it doesn’t follow that because there is corroboration a jury must convict. That is an error into which a jury may easily fall. They may say yes, we understand if there is no corroboration it is dangerous to convict but here there is corroboration, so we must convict. That is absolutely wrong. Even though there is corroboration in a case the jury must still ask themselves whether, with the corroboration, the guilt of the defendant has been proved beyond all reasonable doubt.”
Later the trial judge appears to have made the only reference in this trial to complaints as such:”
“You will bear in mind that in criminal cases like this it has been known for girls who have been indecently assaulted or who have had sexual intercourse with men to make complaints about the men afterwards which are not true. There are many reasons for this and you use your common sense and experience of life. Some of you I am sure are married and have experience of sex. You are only entitled to convict if you are absolutely satisfied that the girl’s account of what happened is correct and in particular that she did not consent and you are satisfied beyond reasonable doubt that the defendant knew she didn’t consent or alternatively that he was reckless whether she consented or not.”
It is a valid comment to make that a distressed condition might be regarded as a likely ingredient, where a prosecutrix was making a false complaint, to lend an added appearance of truth to the allegation. With equal force, it may be said that the absence of a distressed condition would be a significant argument to a jury to disbelieve a complainant’s story. These circumstances point to the role of the jury, which is critical in both meanings of the word. Here, the real issue was consent or no consent; the distressed condition might, in the jury’s view, lend credence to the complainant’s account but having regard to the circumstances at the time, the jury should be wary of relying upon it. The formula to be used in making that clear to a jury would vary from judge to judge; it is undesirable that a trial judge should be obliged to use any particular formula, so long as he conveys the problem correctly to the jury. In the view of the court, in the instant case, the trial judge more than adequately conveyed to the jury the proper method of approach to the resolution of the real issue in the case. The jury were adequately warned of the need for corroboration, the weakness of evidence of a distressed condition as corroboration in cases of this kind, and the danger of convicting in the absence of such corroboration; the jury was told of its own role in assessing what was corroboration; the phraseology quoted in respect of what the defence case on this issue was made it abundantly clear to the jury that they should consider this question in the light of the defence’s submissions. The propriety of all of this part of the charge is supported by the absence of any requisition at the conclusion of the charge being made by defence counsel. In the last resort, the jury’s verdict essentially depended upon its assessment of the prosecutrix; the jury believed her; there is no basis upon which this court could hold that the jury was not entitled to do so.
Accordingly, the application for leave to appeal must be dismissed.
After the jury had returned its verdict, the trial judge, with the consent of both prosecution and defence, posed two further questions to the jury and the jury answered them. No argument has been addressed to this court in respect of the propriety of taking this course. The absence of comment by this Court is not to be taken as giving any sanction to a procedure of doubtful propriety and little value.
Director of Public Prosecutions v. Special Criminal Court
Carney J. [1999] 1 IR 64
H.C.
Carney J.
13th March, 1998
The evidence of Assistant Commissioner, Anthony Hickey given before the Special Criminal Court, evidence accepted by that Court, establishes that An Garda Siochana, as well as having to deal with crime in its traditional forms, now has, in addition, to deal with organised crime. Those engaged in such crime require a wall of silence to surround their activities and believe that its maintenance is necessary for their protection. They have at their disposal the resources, including money and firearms, to maintain this wall of silence and will resort to any necessary means, including murder, in furtherance of this objective.
To deal with crime of this nature it is necessary for An Garda Siochana to collect information, to gather intelligence and to take information in confidence from those willing to provide it. Those prepared to furnish confidential information to the police in relation to organised crime know that they could face a death sentence if this co-operation became known.
Were confidences of this nature to be breached, Assistant Commissioner Hickey has sworn that it would become virtually impossible for An Garda Siochana to investigate serious crime of this sort.
The courts are constantly called upon to resolve conflicting constitutional and legal rights and to establish the hierarchy of conflicting constitutional rights. In this case, there is a potential conflict between the rights of the people of Ireland to have organised crime effectively combated by its police force, the rights of those fulfilling a public duty to furnish information to the police in relation to organised crime to be protected against being murdered and the right of the notice party to have a fair trial.
On the 26th June, 1996, the well known investigative journalist, Veronica Guerin, attended a court case in Naas and thereafter drove her motor car on the Naas dual carriageway in the direction of Dublin. Shortly before 1 p.m. she was stopped at the traffic lights near the Green Isle Hotel. A motorcycle with two passengers on it wearing dark clothing and dark crash helmets drove up beside her car. The prosecution will contend before the Special Criminal Court that Ms. Guerin was murdered by shooting. The details of the killing are not material to this application.
The notice party is currently on trial before the Special Criminal Court for Ms. Guerin’s murder. It is not being alleged that he was present at Ms. Guerin’s murder. He is accused of complicity in a common design to kill her or seriously injure her by assisting in the planning of the murder and in being available at his house to receive the actual killers and to assist in their escape by disposing of the firearm used and of the motorcycle.
The prosecution intend to make their case against the notice party under three broad headings. They claim to have evidence of admissions allegedly made by the notice party. Secondly, they say they will adduce accomplice evidence from a person being maintained within a newly established witness protection programme and thirdly, they say they have telephone records which establish that on the day of the murder, sixteen telephone calls passed between the notice party and the person alleged to have been on the motorcycle and instrumental in the killing.
In the course of the trial, the notice party will enjoy throughout a constitutional presumption of innocence which, in practical terms, will mean that the Special Criminal Court will be required to assess and consider the case and each piece of evidence produced on the basis that the notice party is a totally innocent man. The prosecution, in order to succeed, will have to prove its case and every limb of significance in it to the standard of beyond reasonable doubt. There will be no obligation on the notice party to prove anything, give evidence or call witnesses, although he will, of course, be entitled to do so. He will be entitled to an acquittal as of right if the prosecution does not prove his guilt to the satisfaction of the Special Criminal Court to the high standard indicated.
The prosecution will have to prove its case by the calling of witnesses who will be subject to cross-examination and the production of material documents, which will have to be established as admissible under the rules of evidence. The accomplice evidence will be subject to the rules as to corroboration and the confession evidence will be subject to the safeguards introduced by the Criminal Procedure Act, 1993.
The Special Criminal Court, which is subject to the appellate jurisdiction of the Court of Criminal Appeal, gives written reasons for its verdict, unlike a jury in the ordinary courts which records simply whether its finding is one of “guilty” or “not guilty”. It also gives written reasons for its interlocutory rulings as evidenced by the 14 page ruling at present being considered by me.
The notice party is entitled to be notified of the case against him by service upon him of the Book of Evidence and disclosure of unused relevant material. In the course of the investigation into the murder of Veronica Guerin about 3,500 written statements were taken by An Garda Siochana from approximately 1,350 people. The prosecution contend that the vast majority of these statements have no bearing whatsoever against the notice party or any defence which they perceive might be open to him. With the exception of 40 statements made by 20 individuals, material which does not appear in the Book of Evidence has been made available for inspection by the notice party’s legal advisers.
It is contended by the prosecution that the disclosure of the remaining 40 statements made by 20 individuals would, through their co-operation, become known to ruthless gangs and place their lives in danger or, at least, require that they be placed under witness protection programmes. The notice party, as stated already, enjoys a constitutional presumption of innocence but the prosecution contend that even accepting this to be so, he could be coerced into revealing what was disclosed to him. Counsel for the Director of Public Prosecutions, told the Special Criminal Court that he and his junior counsel, had read and considered each of the said statements with great care and that it was their professional opinion that the information which they contained would provide no assistance to the notice party in making his defence to the charge against him.
Two propositions seem to me to be so obvious and fundamental under our system of constitutional and adversarial justice that I propose to simply state them and move on. They are:-
1. There can be no question of Assistant Commissioner Anthony Hickey or any member of An Garda Siochana deciding that any material might be withheld from disclosure to the court or the defence.
2. There can be no question of counsel or solicitor for the prosecution deciding what material might or might not be of assistance to the defence.
Counsel for the Director of Public Prosecutions submitted to the court of trial that there were three categories of statement for which privilege from disclosure was being claimed. They are:-
(1) Information which is conceded to be relevant to the issues raised in the trial but which is prejudicial to the notice party. Such information was given to and received by the police in confidence and on terms that the informants would not be prepared to give evidence in court for fear of reprisals. The prosecution has made it clear that it will not call this evidence and would abandon this prosecution rather than be forced to disclose it. I pause here to say that it would be the abandonment of the rule of law and of democracy if an accused person could, by the assertion of a right of disclosure, gain immunity against prosecution for serious crime.
(2) The second category of statements relate to the alleged involvement of the notice party and other named persons in major drugs and firearms crimes unrelated to the murder of Veronica Guerin. These statements may be relevant to future trials.
(3) The third category of statements contain background information on the relationship of criminal gangs to each other. They are said to have no bearing on the murder of Veronica Guerin.
Counsel for the notice party sought before the court of trial, disclosure to him and his colleagues of all of the statements but particularly those in category one. As already noted, the prosecution is so protective of these documents that they are prepared to abandon the prosecution rather than disclose them. The Special Criminal Court, in the almost instantaneous time-scale to which it had to operate, considered the authorities to which it was referred and the facts material to the claim of privilege in relation to the 40 statements in issue and came to the following conclusions:-
“1. It accepts the evidence of Assistant Commissioner Hickey that if the statements are furnished to the [notice party,] the informants, their families and associates, might thereby be at risk of serious harm, even death.
2. It also accepts the submission that receipt of information by the police in confidence is an important part of criminal investigation and that such confidentiality should be respected by the court unless there are cogent reasons in the interest of justice for an accused person that it should be waived. The importance of confidentiality is obviously all the greater where there is a perceived risk of grievous harm to the informants and others if such statements or the contents thereof are divulged to an accused person. However, information furnished to the police in confidence is not entitled to privilege merely on that account – see the judgment of the Supreme Court in Skeffington v. Rooney [1997] 1 I.R. 22.
3. There is a clear distinction between statements in the first category and statements in the other categories referred to by counsel for the prosecution. In the former it is conceded that they contain information relevant to the charge of murder made against the [notice party]. For reasons already stated, the court is satisfied that an injustice could possibly be done to the [notice party] if his legal advisers are not allowed to see the documents in question. If the [notice party] is willing to waive his right of personal inspection and of being informed of the contents of such documents, the court will direct production of them to the [notice party’s] solicitor, to be seen only by him and the [notice party’s] counsel, and also on terms that no information contained therein will be divulged by them to any other person. If in the opinion of the [notice party’s] counsel, it transpires that any statement in category I contains information which may be relevant to the [notice party’s] defence and on which counsel requires further instruction from his client, the court will consider a further application relating to the statement in question that its contents, or part thereof, may be divulged to the [notice party] for that purpose. If the [notice party] is unwilling to waive his foregoing rights then, in the interest of protecting the informants and others from the risk of substantial harm, statements in category 1 will not be furnished to the [notice party’s] legal advisers. The court will read them and decide whether they appear to have any relevance to the [notice party’s] defence to the charge of murdering Ms. Guerin or any other matter which might be of assistance to him in this trial.
On careful consideration the court takes the view that there is a crucial distinction between the circumstances of this case and those in Burke v. Central Independent Television plc. [1994] 2 I.R. 61. There is a world of difference between a conflict about the risk of grievous harm to informants whose statements are sought to be protected from disclosure and the right of plaintiffs to their good name and reputation on the one hand and, on the other hand, the risk of grievous harm to informants and others measured against the right of an accused charged with murder to make the best defence available to him. The right of a person accused of crime to a fair trial is fundamental to our law and involves elements of justice which go beyond the requirements of civil litigation. The terms on which the court is authorising production of the documents in category I are based on that distinction. The court has also taken into account that in Burke the Supreme Court, in effect, rendered moot the production of the documents at issue by striking out part of the defendant’s defence and confining it to a plea of justification. The court believes that it is not appropriate to interpret Burke as extending the law into the realm of rights of an accused person in criminal law.
As to the statements in categories II and III; it seems most unlikely that they could have any relevance to the [notice party’s] defence on the charge of murder of Ms. Guerin. In short, it appears that the risk of grievous harm to informants and others in the event of disclosure to the accused of such documents, far outweighs the remote possibility that any information contained therein might be of assistance to him in his defence. These statements have aprima facie right to protection. The court will consider them. Privilege will be affirmed unless the court is satisfied in any particular case that the content of the statement could be of assistance to the accused in his defence.
There is one other matter which may be of relevance to the production of the statements comprised in category I to the solicitor for the [notice party]. The court apprehends that some statements in that category may, in addition, to information regarding the murder charge, also contain other information which,per se, would fall within categories II or III. If that is so, then photocopies of such statements should be furnished to the [notice party’s] solicitor in which the irrelevant information is expunged.
For security reasons, the court also directs that statements to be furnished to the [notice party’s] solicitor shall be examined in this building and shall not leave the precincts of the court. Each evening they should be handed over to the registrar of the court for safe-keeping until the following morning. When all documents have been examined, they should be returned forthwith to the registrar. The members of the court propose to adopt the same security arrangement and they also will not remove the documents from the precincts of the court.
Finally, as to statements in categories II and III; the court appreciates that in reading them they will receive a substantial amount of information which is prejudicial to the accused regarding his alleged participation in criminal activities unrelated to the murder of Ms. Guerin. However, the court is frequently obliged in the course of criminal trials to disregard prejudicial information which transpires to be inadmissible.
The members of the court believe that exposure to such information will not inhibit them in any way from trying this case, and in dealing with all issues which may arise therein, fairly and in accordance with law.”
By order of the Supreme Court dated the 23rd January, 1998, the Director of Public Prosecutions obtained leave to apply to this Court by way of an application for judicial review for (1) an order ofcertiorari quashing the said ruling of the Special Criminal Court, (2) a declaration that the said ruling was wrong in law and (3) a declaration that the Special Criminal Court in its ruling aforesaid acted in excess of its jurisdiction.
Counsel for the Director of Public Prosecutions invites me to deliver in this judgment a wide ranging dissertation on what the law is. This, I decline to do. As this application is a ground-making one it is, in my view, desirable that this judgment be as narrow as it can be to deal with the instant problem.
It is unique in my experience that relief of this nature is being sought during the currency of a trial which remains at hearing. It cannot be emphasised strongly enough that an expedition to the judicial review court is not to be regarded as an option where an adverse ruling is encountered in the course of a criminal trial. I am undertaking this application for judicial review during the currency of the trial because a need has presented itself to urgently balance the hierarchy of constitutional rights including, in particular, the right to life. In the overwhelming majority of cases it would be appropriate that any question of judicial review be left over until after the conclusion of the trial. In the instant case, such an approach would have led the Director of Public Prosecutions to abort the trial and the people of Ireland would have been deprived of their right to have a particularly heinous crime prosecuted to a verdict of either conviction or acquittal. The jurisdiction which I am exercising at present, I find identified in Tormey v. Ireland [1985] I.R. 289. At p. 296, Henchy J. said:-
“The court accepts that Article 34, s. 3, sub-s. 1, read literally and in isolation from the rest of the Constitution, supports the plaintiff’s claim to be entitled to a trial in the High Court. But the Court considers that such an approach would not be a correct mode of interpretation. The ‘full’ original jurisdiction of the High Court, referred to in Article 34, s. 3, sub-s. 1, must be deemed to be full in the sense that all justiciable matters and questions (save those removed by the Constitution itself from the original jurisdiction of the High Court) shall be within the original jurisdiction of the High Court in one form or another. If, in exercise of its powers under Article 34, s. 3, sub-s. 4, Parliament commits certain matters or questions to the jurisdiction of the District Court or of the Circuit Court, the functions of hearing and determining those matters and questions may, expressly or by necessary implication, be given exclusively to those courts. But that does not mean that those matters and questions are put outside the original jurisdiction of the High Court. The inter-relation of Article 34, s. 3, sub-s. 1 and Article 34, s. 3, sub-s. 4 has the effect that, while the District Court or the Circuit Court may be given sole jurisdiction to hear and determine a particular matter or question, the full original jurisdiction of the High Court can be invoked so as to ensure that justice will be done in that matter or question. In this context the original jurisdiction of the High Court is exercisable in one or other of two ways. If there has not been a statutory devolution of jurisdiction on a local and limited basis to a court such as the District Court or the Circuit Court, the High Court will hear and determine the matter or question, without any qualitative or quantitative limitation of jurisdiction. On the other hand, if there has been such a devolution on an exclusive basis, the High Court will not hear and determine the matter or question, but its full jurisdiction is there to be invoked – in proceedings such as habeas corpus, certiorari, prohibition,mandamus, quo warranto,injunction or a declaratory action – so as to ensure that the hearing and determination will be in accordance with law. Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.”
It is accepted by the parties that as regards the applicable law, there is not a great deal of difference between them. Counsel for the notice party accepts that there are circumstances where the identity of an informer is granted protection against disclosure by the common law. He submits that the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence that goes to either of these two things. This obligation overrides any claim of privilege, public interest or otherwise. Counsel in closing the case for the Director of Public Prosecutions, says that it is accepted by the parties that there is a duty of disclosure that rests on the prosecution; it is accepted by the parties that there is an exception to the duty of disclosure in relation to the identity of informants and persons who may be endangered by disclosure and it is accepted that that exception itself is subject to the innocence-at-stake exemption.
The issue here tends to be more in the area of mechanics than principle. Counsel for the notice party contends that defence counsel must participate directly in the process of determining what would not be disclosed. I have already summarily ruled out the determination being made by the prosecution team or the police. Counsel for the notice party would also contend against the determination being made exclusively by the court on the ground that it is not privy to defence counsel’s instructions and, to put it crudely, would not know what to look for or where the case is going. To the court of trial, counsel for the notice party submitted that a criminal trial is an organic thing which grows and the court of trial would not have the capacity to appreciate that an apparently insignificant piece of material might develop significance as the case went on.
Since Murphy v. Corporation of Dublin [1972] I.R. 215, problems relating to disclosure of documents have been resolved by the documents being examined by the trial judge. In Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277, the Supreme Court declined to reconsider the principles stated in Murphy v. Corporation of Dublin and said that that decision was based on fundamental constitutional principles which did not apply to decisions made by the courts of other jurisdictions.
Finlay, C.J. in Ambiorix restated the Murphy v. Corporation of Dublin principles as follows at p. 283:-
“1. Under the Constitution the administration of justice is committed solely to the judiciary by the exercise of their powers in the courts set up under the Constitution.
2. Power to compel the production of evidence (which, of course, includes a power to compel the production of documents) is an inherent part of the judicial power and is part of the ultimate safeguard of justice in the State.
3. Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail.
4. The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of the Government.
5. It is for the judicial power to choose the evidence upon which it might act in any individual case in order to reach that decision.”
At p. 286, Finlay C.J., as regards the mechanics to be employed, said:-
“In these circumstances, I am satisfied that either by a method of editing the documents which are referred to in this section of Mr. Matthews’ affidavit or by restricting their inspection to lawyers engaged on behalf of the plaintiffs who would give to the Court an undertaking that they would not reveal their contents to their clients, except with special leave of the court, the commercial and financial interests of the parties who made these representations should be protected.
I would hear counsel for the plaintiffs and the defendants further on this particular issue in the hope that a simple formula could be devised between them which would give to the plaintiffs adequate information concerning the material matters contained in this particular collection of documents, and would give to the persons who wrote to the Department adequate protection of their commercial and financial interests.”
These mechanics of course related to the protection of financial and commercial interests which are very different to the interests claiming protection here. They also related to a civil rather than a criminal justiciable controversy.
Director of Consumer Affairs v. Sugar Distributors Ltd. [1991] 1 I.R. 225, concerned an investigation and prosecution into alleged anti-competitive behaviour. Costello J. (as he then was) considered the law of disclosure from both a civil and criminal stand point. At p. 229, he said:-
“When a claim is made, as it has been in this case, that it is not in the public interest that relevant documents in the Director’s possession should not be inspected, the court should examine the documents. If satisfied that they form part of a complaint made to the Director by a member of the public that a breach of the restrictive practices legislation or orders made thereunder has occurred inspection should not be allowed unless the court concludes that the documents might tend to show that the defendant had not committed the wrongful acts alleged against him.
I have followed this course in this case. The disputed documents were all documents forwarded to the Director as part of a complaint made by ASI International Foods Ltd. that breaches of restrictive practices legislation had occurred. They do not tend in any way to show that the defendant was not guilty of the wrongdoing alleged against it. I will therefore not allow their inspection.”
The most analogous case to the present is undoubtedly Burke v. Central Independent Television plc. [1994] 2 I.R. 61. It is not diminished as an authority in coming from the civil side of the court, most of the case law to date has done so.
The defendant objected to producing for inspection documents which could lead to the identification of its sources on the grounds that (a) the life and safety of those sources and others including an undercover police officer would be put at risk if their identities became known, (b) the information contained in the documents had been furnished on the understanding that confidentiality would be maintained and (c) current affairs programmes provided valuable information to the public but could not do so if the safety of contributors was put at risk.
At p. 79, Finlay C.J. said:-
“I would accept the view expressed by Murphy J. on the hearing in the High Court in this case that the particular form of immunity and the reason upon which it is based arising in this case is new to the decisions of the courts in this country and possibly to the courts in other common law countries as well.
I am also satisfied that what is necessarily at issue here is not merely an immunity of documents from discovery by one party to another, but an immunity which must go further than that and which must affect what the court could permit as admissible evidence upon the hearing of an action.
The reason I have reached this conclusion is that it seems to me that if there is a real risk as is asserted by the defendant that the communication of these documents to persons who are members of or associated with the provisional I.R.A. either at first or second hand is likely to lead to danger to the bodily integrity and life of certain citizens who can be identified from them, then that risk exists even to a greater extent were such documents to be produced in evidence at a public trial than it could by any discovery presently being made.
With regard to the two contesting constitutional rights which the Court finds in conflict, on the assumptions which I feel must be made on the hearing of this application, there can be no doubt but that the constitutional right of individual citizens to the protection of their life and of their bodily integrity must of necessity take significant precedence over even so important a right as the right of citizens to the protection and vindication of their good name. That does not mean of course that it excludes or extinguishes in any way consideration for and the importance of the right to a good name.
Upon the hearing in the High Court and again upon the hearing of this appeal in this court, an offer was made on behalf of the plaintiffs that if discovery were to be made of these documents that the lawyers engaged in the case on behalf of the plaintiffs, with their authority, would undertake not to reveal the contents of any document to the plaintiffs unless in pursuance of an application subsequently to be made in respect of a particular document on particular grounds to the court.
It is clear that such a provision has an attractiveness in that it appears to go some distance towards protecting the persons who are said to be at risk with regard to life and health and would go some distance, though possibly not a complete distance, towards assisting to protect the good name of the plaintiffs. I am satisfied, however, it is not a procedure which could or should properly be adopted by the Court.
If these documents are not only to be protected from communication to the plaintiffs in the interests of a possible risk to citizens from that communication, but also from admission in evidence in a public court, the following situation would arise. Lawyers acting on behalf of the plaintiffs would have access to a number of documents some of which might well be significant and weighty tools to be used in cross examination of witnesses adduced on behalf of the defendant and be unable to use such documents or to explain their failure to their own client to use them. This would constitute an unprecedented and wholly undesirable breach in the duty which counsel would owe to their client and in the proper trust which should exist between a client and his/her lawyers. I therefore am satisfied that this compromise arrangement must be rejected.”
A similar view was taken in the Court of Appeal, Criminal Division of England and Wales. In R. v. Davis [1993] 1 W.L.R. 613, Taylor L.C.J. said at p. 616:-
“Before us, Mr. Mansfield submitted first that, where the court has to consider disclosure, it cannot be right to require counsel for the defence to give an undertaking not to reveal what passes in court to his instructing solicitors and client. Nor should he, as happened here, voluntarily absent himself. We agree. It would wholly undermine counsel’s relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client. There would also be practical difficulties, as Mr. Bevan pointed out. Counsel might have different views as to whether they would give such an undertaking; there might be a change of counsel and therefore a change of view; where several defendants were concerned their counsel might differ about giving undertakings. Accordingly, whatever happens in court with defending counsel present would, in our view, have to be disclosable to his clients.”
I have come to the view that the Special Criminal Court exceeded its jurisdiction in fundamentally altering the established relationship between defence lawyers and their client. It does not seem to be any answer that the notice party has consented to his legal team having sight of the statements on the terms that they are not disclosed to him without leave of the court. His present legal team could be discharged at any time and it does not seem to me that there would be a trial in accordance with constitutional justice if any subsequent legal representatives did not enjoy the full lawyer-client relationship with their client but were under an obligation to keep secrets from him. I accordingly, quash by order of certiorari the ruling of the Special Criminal Court dated the 21st January, 1998.
The Special Criminal Court will examine the 40 statements concerned and determine whether any of them might help the defence case, help to disparage the prosecution case or give a lead to other evidence. On the basis of this examination, the Special Criminal Court will determine which, if any, of the 40 statements concerned should be disclosed to the defence.
The members of the Special Criminal Court are all experienced in the criminal law, both as judges and practitioners. They have heard from counsel for the prosecution an opening speech in relation to the facts of the case. I am satisfied that they will be able to identify whether any of the statements concerned would help the defence case, would help to disparage the prosecution case or give the defence a lead. I am satisfied that counsel for the notice party’s residual misgivings of possible prejudice from the court not being privy to his client’s instructions are at the minimal theoretical level of prejudice. This being so, they must yield to the risk to life as deposed to by Assistant Commissioner Hickey.
In conducting its examination of the sensitive material, the Special Criminal Court will be exposed to material prejudicial to the notice party. I accept their assurance quoted earlier in this judgment to the effect that they will nevertheless be able to deal with the case fairly and in accordance with law. It is the function of every professional judge to adjudicate on the admissibility of evidence prejudicial to an accused person and to exclude it from his mind if it is not admissible according to the rules of evidence. I would not see it as necessary for another chamber of the court to deal with the matter.
It follows from the view I have just expressed that I do not consider it necessary that the case should be dealt with by the ordinary courts. Even were I to consider that course desirable I am not aware of any mechanism to bring the case back to the ordinary courts from the Special Criminal Court.
The order of this Court will be to:-
(1) quash by certiorari the said ruling of the Special Criminal Court dated the 21st January, 1998 and
(2) dismiss the application brought by the notice party.
Supreme Court (Hamilton C.J., O’Flaherty, Barrington, Keane and Lynch JJ.) on the 8th and 9th July, 1998.
Hamilton C.J.
20th July, 1998
I have read the judgment about to be delivered by O’Flaherty J. and I agree with it.
O’Flaherty J.
The notice party was charged at the Special Criminal Court on the 18th October, 1996, with the murder of Veronica Guerin on the 26th June, 1996. Veronica Guerin was shot dead while she was driving her motor car on the Naas Road, Dublin. Two people on a motor bike drew up along side her car and a firearm was discharged by one of them. It is the prosecution’s case that while the notice party was not at the scene of the crime, he was complicit in the plot to murder Veronica Guerin and, for example, had arranged that the killers could come back to his house so that the disposal of the motor bike would be effected. The prosecution say that the notice party’s complicity is further demonstrated because there was an exchange of sixteen telephone conversations by mobile phone on the day of the killing between the notice party and others with whom it is said, he acted in concert in relation to the murder. The prosecution propose to call one Charles Bowden who, they say, will implicate the notice party in the plot and the prosecution also say that they will rely on admissions made by the notice party.
Course of proceedings at the Special Criminal Court
The Director of Public Prosecutions certified under s. 47 of the Offences Against the State Act, 1939, that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the notice party. Therefore, the notice party was brought before the Special Criminal Court and duly charged. On the 24th April, 1997, he was served with a book of evidence in accordance with Rules of the Special Court and in line with s. 6(1) of the Criminal Procedure Act, 1967. Counsel for the notice party said it was a rather short book of evidence.
On the 22nd July, 1997, the notice party’s trial was set for the 13th January, 1998.
On the 19th December, 1997, the last day of the Michaelmas term, the prosecution served a substantial volume of additional evidence upon the notice party. Further additional evidence was served throughout the first week of January, 1998.
On the 12th January, 1998, an adjournment of one week of the trial was granted by the Special Criminal Court to allow the defence to consider these additional materials. At this stage, too, it was clear that while the prosecution disclosed the existence of 40 statements (made by 20 people), it was claiming privilege in respect of them on the basis that this was information that had been given by informants in regard to some, at least, on the basis that they would be treated in confidence and that they would not be required to give evidence. Further, it was, and is the State’s case that there is a definite risk to life and property for some of the informants if their identity is disclosed.
The defence requested disclosure of these documents. Initially, the members of the Special Criminal Court (Barr J. presiding) proposed that a separate division of the Court might examine the documents. However, on the 15th January, 1998, the Court ruled that this was not a practical proposition.
Assistant Commissioner Hickey’s evidence
On the 15th January, 1998, Assistant Commissioner Anthony Hickey, gave evidence of the danger posed for potential witnesses. He asserted that there were people interested in this case who had the resources and access to firearms and so forth, and that they would resort to virtually anything, including murder, to maintain a “wall of silence” which they believed was necessary to protect themselves and their criminal activities.
Aside from the danger to witnesses, the Assistant Commissioner said that if the confidence of the informants were to be breached it would make it virtually impossible for the gardaà to investigate serious crime.
Three categories of statement
Counsel for the prosecution, at the invitation of the Special Criminal Court, gave an outline of the prosecution case to the Court. He also informed the Court that there were three categories of statement for which privilege was claimed. The first category contains information which it is conceded is relevant to the issues raised in the trial but which is prejudicial to the accused, i.e. it does not help the notice party’s defence nor does it help to demolish the prosecution case in any way. The second category of statement relates to information about the alleged involvement of the notice party, and other named persons, in criminal activity; notably, major drug and firearm crimes unrelated to the murder of Veronica Guerin. The third category of statement contains background information which, it is said, is even further removed from the murder of Veronica Guerin and which can have no possible bearing on such murder.
Counsel for the notice party submitted to the Special Criminal Court – a submission that was repeated before us – that with particular regard to the first category, which the prosecution concedes contains documents that are relevant to the charge of murder against his client, he and his colleagues cannot form any view as to the relevance or otherwise of the information therein contained without seeing the statements and ascertaining the identities of the informants. Counsel also submits that a particular statement, though containing information which, on its face, is prejudicial to the notice party, might, in the light of facts known to the notice party and his advisors, but unknown to the prosecution, cast a different light on the information and on the informant which could be helpful to the notice party’s defence.
Ruling of the Special Criminal Court
The Special Criminal Court, on the 21st January, 1998, concluded as follows:-
“1. It accepts the evidence of Assistant Commissioner Hickey that if the statements are furnished to the [notice party], the informants, their families and associates, might thereby be at risk of serious harm, even death.
2. It also accepts the submission that receipt of information by the police in confidence is an important part of criminal investigation and that such confidentiality should be respected by the court unless there are cogent reasons in the interest of justice for an accused person that it should be waived. The importance of confidentiality is obviously all the greater where there is a perceived risk of grievous harm to the informants and others if such statements or the contents thereof are divulged to an accused person. However, information furnished to the police in confidence is not entitled to privilege merely on that account, – see the judgment of the Supreme Court in Skeffington v. Rooney [1997] 1 I.R. 22.
3. There is a clear distinction between statements in the first category and statements in the other categories referred to by counsel for the prosecution. In the former it is conceded that they contain information relevant to the charge of murder made against the [notice party]. For reasons already stated, the court is satisfied that an injustice could possibly be done to the [notice party] if his legal advisers are not allowed to see the documents in question. If the [notice party] is willing to waive his right of personal inspection and of being informed of the contents of such documents, the court will direct production of them to the [notice party’s] solicitor to be seen only by him and the [notice party’s] counsel and also on terms that no information contained therein will be divulged by them to any other person. If in the opinion of the [notice party’s] counsel it transpires that any statement in category 1. contains information which may be relevant to the [notice party’s] defence and on which counsel requires further instruction from his client, the court will consider a further application relating to the statement in question that its contents, or part thereof, may be divulged to the [notice party] for that purpose. If the [notice party] is unwilling to waive his foregoing rights then, in the interest of protecting the informants and others from the risk of substantial harm, statements in category 1 will not be furnished to the [notice party’s] legal advisors. The Court will read them and decide whether they appear to have any relevance to the [notice party’s] defence to the charge of murdering Ms. Guerin or any other matter which might be of assistance to him in his trial.”
Judicial Review of Special Criminal Court’s decision
On the 23rd January, 1998, this Court, on appeal from Kinlen J., granted leave to issue judicial review proceedings to quash the order of the Special Criminal Court.
Judgment of Carney J.
The matter came on for hearing before Carney J. who delivered his judgment quashing the ruling of the Special Criminal Court on the 13th March, 1998. After a very careful and comprehensive review of the authorities he concluded at p. 75:-
“I have come to the view that the Special Criminal Court exceeded its jurisdiction in fundamentally altering the established relationship between defence lawyers and their client. It does not seem to be any answer that the notice party has consented to his legal team having sight of the statements on the terms that they are not disclosed to him without leave of the court. His present legal team could be discharged at any time and it does not seem to me that there would be a trial in accordance with constitutional justice if any subsequent legal representatives did not enjoy the full lawyer-client relationship with their client but were under an obligation to keep secrets from him.
I accordingly, quash by order of certiorari the ruling of the Special Criminal Court dated the 21st January, 1998.
The Special Criminal Court will examine the 40 statements concerned and determine whether any of them might help the defence case, help to disparage the prosecution case or give a lead to other evidence. On the basis of this examination, the Special Criminal Court will determine which, if any, of the 40 statements concerned should be disclosed to the defence.
The members of the Special Criminal Court are all experienced in the criminal law both as judges and practitioners. They have heard from counsel for the prosecution an opening speech in relation to the facts of the case. I am satisfied that they will be able to identify whether any of the statements concerned would help the defence case, would help to disparage the prosecution case or give the defence a lead. I am satisfied that the notice party’s counsel’s residual misgivings of possible prejudice from the court not being privy to his client’s instructions are at the minimal theoretical level of prejudice.
This being so, they must yield to the risk to life as deposed to by Assistant Commissioner Hickey.
In conducting its examination of the sensitive material, the Special Criminal Court will be exposed to material prejudicial to the notice party. I accept their assurance quoted earlier in this judgment to the effect that they will nevertheless be able to deal with the case fairly and in accordance with law. It is the function of every professional judge to adjudicate on the admissibility of evidence prejudicial to an accused person and to exclude it from his mind if it is not admissible according to the rules of evidence. I would not see it as necessary for another chamber of the court to deal with the matter.”
It should be said that separate judicial review proceedings had been brought on behalf of the notice party, contending that the case should not be dealt with by the Special Criminal Court at all but should revert, in some manner, to the Central Criminal Court.
Carney J. ruled in regard to this:-
“It follows from the view I have just expressed that I do not consider it necessary that the case should be dealt with by the ordinary courts. Even were I to consider that course desirable I am not aware of any mechanism to bring the case back to the ordinary courts from the Special Criminal Court.”
Appeal
The notice party appeals to this Court seeking a reversal of the order of the High Court and, in effect, a restoration of the regime proposed by the Special Criminal Court. He also holds to his contention that the case should not be heard in the Special Criminal Court but in the ordinary courts.
Extent that disclosure required
It is agreed on all sides that where the prosecution has a statement of a person who may be in a position to give material evidence, whom they do not want to call as a witness, they are under a duty to make that person available as a witness for the defence and, in general, to make available any statements that he may have given. We understand that that is in fact the practice that has been in operation by the office of the Director of Public Prosecutions for a very long time, see The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517 at p. 539. Of course, the prosecution has no obligation to disclose material that is clearly irrelevant, although in this case, perhaps out of an abundance of caution, the prosecution seems to have made available all the material that it held: over 3,000 statements (with the exception of the instant 40 statements in respect of which privilege is claimed); many of which must be of no relevance to this case.
Informer privilege
In A.G. v. Briant (1846) 15 M. and W. 169 at p. 185, Pollock C.B. said:-
“. . . the rule clearly established and acted on is this, that, in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for fifty years, and although it may seem hard in a particular case, private mischief must give way to public convenience and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer . . .”
Withholding information based on informer privilege is subject to what is known as the “innocence at stake” exception. Esher M.R. described this exception in Marks v. Beyfus (1890) 25 Q.B.D. 494 at p. 498 as follows:-
“. . . if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner’s innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail.”
And see Director of Consumer Affairs v. Sugar Distributors [1991] 1I.R.225 (Costello J.); The People (Director of Public Prosecutions) v. Reddan [1995] 3 I.R. 560 and Skeffington v. Rooney [1997] 1 I.R. 22. In Burke v. Central Independent Television plc. [1994] 2 I.R. 61, this Court held, in addition, that there should be a principle of immunity against disclosure where disclosure is likely to lead to death or injury to persons.
Notice party’s contention
It is submitted on behalf of the notice party that in the particular circumstances of this case it is both impracticable and unrealistic to expect the trial court to carry the burden of ruling on disclosure where it cannot be privy to instructions from the notice party to his representatives, or to the fruits of the investigations carried out by the defence, or to circumstances where it has no knowledge of the vast bulk of the other unused material. It is submitted by the notice party that in this case the court is entitled to seek the limited assistance of the legal representatives of the notice party in accordance with its inherent jurisdiction: which is to take such measures as might, in any particular case, be deemed necessary to ensure that fair procedures are maintained and to give effect to the respective rights of the parties.
Counsel were not able to point to the jurisprudence of any jurisdiction where this solution has prevailed but we were urged to expand the rights of the defence to this extent so as to ensure that there would be a trial in due course of law and thus compliance with Article 38.1 of the Constitution.
The State’s response
The State’s response to the notice party’s contention is to say that if we were to expand the law to that extent, we would destroy informer privilege. Further, they ask how can there be a distinction between an accused, who is represented by lawyers, and one who elects to conduct his own defence? Or if, in the course of this trial, the notice party elected to dispense with his legal representatives, is he to be shut out from seeing the same documents that they saw? Undoubtedly, there is force and substance in these points and I, for my part, accept them.
There is a further point. It is important to emphasise that what is in debate is not only the State’s privilege, but also the protection of rights to which the informer may be entitledviz. confidentiality as well as protection of life and limb. While it is clear to the court, and to everyone who took part in the debate here, that the trustworthiness of counsel and solicitors is beyond question in this jurisdiction – is this something that would necessarily be clear to an informant? Would not a lay person immediately identify the interest of the legal adviser with the client? I think that in most cases this would be the likely reaction of the informant.
On the civil side, the court has rejected what is proposed on behalf of the notice party as a solution. In Burke v. Central Independent Television plc. [1994] 2 I.R. 61 at pp. 79 and 80 (the relevant point at issue as far as the purposes of the instant case are concerned was the danger to life and limb posed for certain informants in relation to the making of a television documentary), Finlay C.J. said:-
“Upon the hearing in the High Court and again upon the hearing of this appeal in this Court, an offer was made on behalf of the plaintiffs that if discovery were to be made of these documents that the lawyers engaged in the case on behalf of the plaintiffs, with their authority, would undertake not to reveal the contents of any document to the plaintiffs unless in pursuance of an application subsequently to be made in respect of a particular document on particular grounds to the court.
It is clear that such a provision has an attractiveness in that it appears to go some distance towards protecting the persons who are said to be at risk with regard to life and health and would go some distance, though possibly not a complete distance, towards assisting to protect the good name of the plaintiffs.
I am satisfied, however, it is not a procedure which could or should properly be adopted by the Court.
If these documents are not only to be protected from communications to the plaintiffs in the interests of a possible risk to citizens from that communication, but also from admission in evidence in a public court, the following situation would arise. Lawyers acting on behalf of the plaintiffs would have access to a number of documents some of which might well be significant and weighty tools to be used in cross examination of witnesses adduced on behalf of the defendant and be unable to use such documents or to explain their failure to their own client to use them. This would constitute an unprecedented and wholly undesirable breach in duty which counsel would owe to their client and in the proper trust which should exist between a client and his/her lawyers. I therefore am satisfied that this compromise arrangement must be rejected.”
In R. v. Davis [1993] 1 W.L.R. 613, the Court of Appeal (Criminal Division), in England, reached a similar conclusion. The court stated at p.616:-
“It would wholly undermine counsel’s relationship with his client if he were privy to issues in court but could reveal neither the discussion nor even the issues to his client. There would also be practical difficulties Counsel might have different views as to whether they would give such an undertaking; there might be a change of counsel and therefore a change of view; where several defendants were concerned their counsel might differ about giving undertakings.”
It is true that in Ambiorix Ltd. v. Minister for the Environment (No.1) [1992] 1 I.R. 277, the solution that only lawyers should examine the relevant documents was presented to the court and accepted. However, Ambiorix was a very special case. The essential thrust of what the case on discovery was about was that the State sought to persuade the court to resile from its decision in Murphy v. Corporation of Dublin [1972] I.R.215, in the matter of executive privilege. This the court declined to do. The documents in question would have embodied representations by third parties to particular government departments seeking to have their properties included in designated areas under the Urban Renewal Act, 1986. What the plaintiffs hoped to establish was that in the course of those representations matters might have been taken into consideration that should not have been taken into consideration in deciding which properties should be included in designated areas. However, it was accepted on all sides that submissions made to government departments would contain many details, financial and otherwise, which would be of no possible relevance to this point of the case.
The solution that presented itself, which was agreed to by all parties, as appears from the judgment of Finlay C.J. and the order subsequently drawn up, was to allow the lawyers only to see the documents. Finlay C.J. said at p. 286:-
“As a matter of general principle, of course, a party obtaining the production of documents by discovery in an action is prohibited by law from making any use of any description of such documents or the information contained in them otherwise than for the purpose of the action. To go outside that prohibition is to commit contempt of court.
Furthermore, the Court has an inherent jurisdiction, I am satisfied, to take such steps as are necessary to regulate the production of documents so as to prohibit any infringement of this restriction.
In these circumstances, I am satisfied that either by a method of editing the documents which are referred to in this section of Mr. Matthews’ affidavit or by restricting their inspection to lawyers engaged on behalf of the plaintiffs who would give to the Court an undertaking that they would not reveal their contents to their clients, except with special leave of the court, the commercial and financial interests of the parties who made these representations should be protected.
I would hear counsel for the plaintiffs and the defendants further on this particular issue in the hope that a simple formula could be devised between them which would give to the plaintiffs adequate information concerning the material matters contained in this particular collection of documents, and would give to the persons who wrote to the Department adequate protection of their commercial and financial interests.”
The order drawn up concluded:-
“It is ordered and adjudged that the said appeal be dismissed and on hearing said respective counsel in regard thereto it is ordered that the said orders of the High Court be varied to provide in the case of documents which constituted representations made to Government Departments by third parties seeking to have their properties included within the designated areas that in lieu of allowing inspection by and giving copies of such documents to the plaintiffs the same be inspected by the legal representatives of the plaintiffs herein the said legal representatives undertaking not to disclose the contents thereof to the plaintiffs without the express leave of the High Court and that as so varied the said orders do stand affirmed.”
Solution to the immediate problem before the Court
It will be clear that there are two conflicting interests involved here. I hold that the informer’s privilege is of ancient origin and that it is essential for the prevention and detection of crime and, therefore, the preservation of law and order that that privilege should remain intact; subject only to the “innocence at stake” exception.
Counsel for the prosecution have a critical role in this regard. Their task is to present the evidence to the court – having disclosed any possible source of evidence that may help the defence. Their task is not just to secure a conviction: rather they must always be ministers of justice. Carney J. may have gone further than he intended when he said:-
“There can be no question of counsel or solicitor for the prosecution deciding what material might or might not be of assistance to the defence.”
This is because counsel for the prosecution must have a role in disclosing all relevant material to the defence but counsel must also be in a position to take a stance on the matter of informer privilege which, in turn, is subject to the “innocence at stake” exception. It is the position, to adopt McLachlin J.’s phrase, speaking for the Supreme Court of Canada in R. v. Leipert [1997] 2 L.R.C. 260 at p. 270, that “the right to disclosure is not to trump privilege”. They must both be accommodated and prosecution counsel has a key role in this concord. However, when it comes to a stage where there is any doubt on the matter, it will be essential to get the ruling of the trial judge. Sometimes the matter will be straightforward. No doubt, judges allow claims of privilege in routine cases day in and day out without ever examining any documents. Other cases – this may be one – will be more complicated and then the judge or judges (as in the case of the Special Criminal Court) will examine the documents. However, I do not think trial judges should feel that they have any obligation to look at documents in every case. That is why prosecuting counsel’s role is so critical. While the prosecution cannot appear to be a judge in its own cause, it is common case that the role of counsel for the prosecution is very different to the role of counsel for the defence. The role of counsel for the defence is always to put the prosecution to the proof of its case and seek by every fair and just means for the acquittal of their client. By contrast, counsel for the prosecution has an overall responsibility to assist in ensuring a fair and just trial.
For the reasons already given, the possibility that the lawyers for the notice party might see the documents is not a feasible compromise solution. The solution proposed by Carney J. is, therefore, the correct one. Ever since the decision in Murphy v. Corporation of Dublin [1972] I.R. 215, this solution has worked well on the civil side.
I would, however, vary Carney J.’s judgment to this extent. I would remove any direction to the Special Criminal Court as to whether the members of the court should examine some or all of the documents in debate. I would repose to the court’s full discretion how the trial is conducted and, in particular, to decide this matter. The judges may ask anew whether there is any point at all in looking at the documents in the second and third category. But I reiterate that the decision is for the members of the Special Criminal Court. It needs to be emphasised, however, that the duty that will devolve on the members of the court will be a continuing one as the trial develops and evolves. The members of the court will be astute, no doubt, to monitor the situation throughout.
Should there have been Judicial Review?
Counsel for the notice party submitted that judicial review did not lie in this case. The notice party had been arraigned and it was submitted that the trial had started and reliance was placed on thedictum of Ó Dálaigh C.J. in The People (Attorney General) v. McGlynn [1967] I.R. 232 at p. 239:-
“The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a
jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
While this statement applies to criminal trials with a jury, it should be regarded as a precept that should, as far as practicable, be followed in respect of all criminal trials subject to the jurisdiction of courts to grant cases stated on occasion.
However, the situation that prevailed here is that while counsel for the prosecution had been invited by the court to “open” the case, this was purely for the purpose of giving the members of the court an idea of what the case was about. Essentially, the ruling that was sought and given was by way of preliminary ruling before the trial was embarked upon.
I would endorse everything that Carney J. said about the undesirability of people repairing to the High Court for judicial review in relation to criminal trials at any stage (and certainly not during their currency) but, in the exceptional circumstances of this case, and having regard to the importance that there should be a definitive ruling on this matter of informer privilege, it was right that Carney J. should have entertained the application at first instance and for us to hear it on appeal.
Notice Party’s application for Judicial Review
As related earlier, it was sought on behalf of the notice party to prohibit the proceedings in the Special Criminal Court so that, in some manner, the case could go to the Central Criminal Court. However, as already stated, there is in place a certificate of the Director of Public Prosecutions certifying that the ordinary courts are inadequate to secure the effective administration of justice and that it is necessary that this case should be tried before the Special Criminal Court. The efficacy and validity of that certificate has not been successfully challenged (see Ward v. Ireland (Unreported, Supreme Court, 18th December, 1997) and, therefore, it must prevail: Kavanagh v. The Government of Ireland [1996] 1 I.R. 321 and cases cited therein. Therefore, the case should remain in the Special Criminal Court.
Conclusion
The appeal should be dismissed, the order of the High Court affirmed with the modification in the judgment of Carney J. that I have suggested.
Barrington J.
I agree with the judgment of O’Flaherty J.
Keane J.
I also agree.
Lynch J.
I also agree.
People (DPP) v D ‘OS
[2004] I.E.C.C.A. 23
Judgment of the Court delivered the 28th day of July 2004 by McGuinness J.
The applicant appeared before the Central Criminal Court on 16th May 2001 charged with four counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and three counts of rape contrary to section 4 of the same Act. All the counts related the alleged sexual abuse of D.C., then aged eleven years, between September 1997 and February 1998. The said D.C. was at the time a pupil at a school in the Cork area; the applicant was a remedial teacher in the same school.
Following a trial lasting thirteen days before O’Donovan J. and a jury the applicant was acquitted by the jury on count no. 7 (rape contrary to section 4). He was convicted by a majority verdict of eleven to one in respect of the four counts of sexual assault, and by a majority verdict of ten to two in respect of the two remaining rape counts. On 26th July 2001 the applicant was sentenced to four years imprisonment on each of the counts of sexual assault and ten years imprisonment on each of the two counts of rape, all sentences to run concurrently.
Leave to appeal was refused. In this court the applicant sought leave to appeal against conviction and sentence. The application for leave was treated as the appeal itself.
Summary of Evidence
The applicant was born on 8th July 1948 and qualified in 1967 as a national teacher. Since qualifying he had taught at the school in question in the Cork area. Following on a heart attack he had a career break for one year in 1996 to 1997. During this career break an incident occurred in which his house was broken into and he was stabbed. During his career break he did a limited course in remedial studies and upon his return to work he took up a position as a remedial teacher in the school. Both the headmaster of the school and another class teacher gave evidence of having known the applicant for many years; both described him as an excellent teacher with a particular interest in marginalised children. The applicant was also a leader in the Boy Scout movement from in or about 1972 until 1998.
The complainant, D.C. was born on 21st June 1986 in England. He is the eldest of five children. His family moved to Ireland when he was about seven or eight years of age and came to live in the Cork area. He attended a local national school in the area in which the family lived. Subsequent to a move of residence by the family D.C. started to attend the school in question in these proceedings at the beginning of September 1997 when he was eleven years of age. He started in fourth class; his class teacher was a Mr C. who subsequently gave evidence at the trial. D.C. suffered from dyslexia and it was therefore decided with the consent of his mother that he would benefit from remedial teaching by the applicant. During the period while D.C. attended the school the marriage between his mother and father broke down and his father left the family home. During the Christmas holiday period in 1997 D.C.’s father came to stay for a short period at the family home but this appears to have been an unhappy period when there was a degree of aggression between the parents. D.C.’s mother has since formed a relationship with a new partner by whom she has a young child. In addition to his dyslexia, therefore, D.C. had a somewhat troubled family background during the relevant period.
D.C. attended two types of remedial class with the applicant. There were regular classes, which might be described as the “official” classes, which took place between 11.45 a.m. and 12.15 p.m.; there was some clash of evidence as to whether these classes took place every day or three days a week. The classes took place in a dedicated room known as classroom 11. A number of young boys took part in these classes including P.B. and J.M., both of whom gave evidence at the trial. In addition to these classes D.C. attended further remedial classes with the applicant during lunchtime every day. While some other boys may have attended these classes to begin with the situation shortly developed into one where D.C. was the only pupil involved. The classes were on a one to one basis. For some time it appears that neither the headmaster nor D.C.’s mother was aware that these classes were on a one to one basis. From the evidence of the headmaster it appears that such a practice was regarded with disapproval in the school.
In his evidence D.C. said that during these lunchtime classes the applicant used to bring other boys into the room with him and then send them out after a while. He said that the applicant used to lock the door of the classroom while he was there with him. He described the applicant leaning over his back correcting his work as he
sat at his desk and that he could feel the applicant’s penis against his back. He also told the jury that the applicant had on a couple of occasions put his hand down the complainant’s trousers and rubbed his penis outside his underpants. In his evidence he also described how the applicant on three or four occasions committed anal rape on him which he found very painful. On one of these occasions the applicant had torn his trousers. He excused this to his mother by saying that there were torn while playing in the playground but later explained to her how the damage to his trousers arose. D.C.’s mother gave evidence at the trial of having to mend the trousers and they were produced as an exhibit in evidence. The complainant also gave evidence that the applicant had forced him to take part in oral sex.
On 21st January 1998 D.C. told his mother that he did not want to be alone with the applicant again. There was some discussion between his mother and the school authorities as to why he was not attending his remedial classes any longer. The applicant telephoned his mother and offered to teach D.C. at home. The following day D.C.’s mother encouraged the boy to speak to her new partner, P.G., and D.C. made complaints to him about sexual assault on him by the applicant. The boy then spoke to his mother along the same lines and the matter was reported to the Garda Siochana who embarked on an investigation.
During the investigation D.C. made three separate statements to the Gardai and it was not until his later statements that he referred to the alleged rape episodes. It was not until the end of the investigation that he complained of the oral sex episode. In fact the jury acquitted the applicant on this particular count.
During the course of the trial evidence was given by two other young witnesses who had been pupils at the school, P.D. and J.M. Both of these boys had attended what are described as the “official” remedial classes given by the applicant. The defence objected to this evidence and it was admitted only following a ruling by the learned trial judge. I shall refer to this later in the context of the grounds of appeal. Both boys gave evidence that the applicant had lent over them assessing or correcting their work and that they had felt his penis being rubbed against their backs.
Medical evidence was given for the prosecution by Dr. Elizabeth Brosnan of St. Finbarr’s Hospital in Cork. She had examined the complainant some considerable time after the date of the alleged abuse. She made certain findings which she accepted were not diagnostic of but were consistent with anal abuse. Medical evidence for the defence was given by Mr Martin Corbally of Our Lady’s Hospital Crumlin who had not examined the complainant but had assessed Dr. Brosnan’s report. His view was that Dr. Brosnan’s findings were not diagnostic of anal abuse.
Garda evidence was given in regard to the location and type of the classroom involved and in regard to the various aspects of the Garda investigation. As far as the classroom was concerned evidence was given that it was divided from another classroom by a thin partition which would allow noise made in the classroom to be heard in the next door classroom. However evidence was also given that a number of the boys in the school were involved in the making of what was described as “string pictures”, a task which involved a great deal of hammering noise and which at times was carried out during the lunch hour break.
The applicant gave evidence in his own defence. He firmly and consistently denied all the allegations made by the complainant and by P.B. and J.M. He gave evidence as to the presence of other boys in the classroom while he was conducting the lunchtime class and also of the presence of the boys who were making “string pictures” in the corridor outside. His evidence was that he only locked the door of the classroom on one occasion in order to keep out a disruptive student. His evidence was that D.C. was very keen to go to the remedial classes until in or about January 1998 when some kind of football league started in the school yard. The effect of his evidence was that D.C. attended only two lunchtime classes after Christmas 1997 even though he had given evidence that three of the rapes and the oral sex incident had taken place during that period. The applicant was cross-examined at length by Mr Sammon, senior counsel for the prosecution, in regard to his general lifestyle and in particular his sexual history. He was also cross-examined at length in regard to his connection with and role in the Boys Scout organisation.
Grounds of Appeal
At the outset of the hearing of the appeal before this court the defence brought a notice of motion seeking liberty to file an amended notice of appeal. No objection was made by the prosecution to this amendment of the notice of appeal. The grounds of appeal before this court therefore were as follows:
1. The learned trial judge erred in law in admitting the evidence of P.B. and J.M.
2. The learned trial judge erred in law in failing to discharge the jury on the application of counsel for the applicant after the evidence of P.B. and J.M. had been given.
3. In charging the jury in respect of the evidence of P.B. and J.M. the learned trial judge failed to clearly or at all put the defence case in relation to the dissimilarities between their evidence and that of the complainant.
4. In charging the jury in respect of this evidence of P.B. and J.M. the learned trial judge erred in law in commenting on the defence case of conspiracy in such a way as to resolve the issue for them.
5. That the conviction is unsafe by reason of the fact that it was procured in part by allegations of offences against P.B. and J.M. in respect of which the applicant has since been tried and acquitted by a jury.
6. The learned trial judge erred in failing to give a corroboration warning in respect of the evidence of P.B.
7. In charging the jury the learned trial judge erred in law in instructing them that the evidence of P.B. and J.M. constituted corroboration of the evidence of the complainant.
8. The learned trial judge erred in law in failing to instruct the jury in respect of the presumption of innocence and onus of proof in respect of the allegations made by P.B. and J.M.
9. The learned trial judge wrongly exercised his discretion in refusing to give a warning about the dangers of convicting in the absence of corroboration.
10. The learned trial judge erred in law in failing to instruct the jury either properly or at all on the issue of the benefit of the doubt.
11. In charging the jury the learned trial judge erred in law in failing to clearly, fully or fairly, put the defence case.
12. The learned trial judge erred in permitting cross-examination in respect of the applicant’s involvement in the Boy Scout movement.
13. The learned trial judge erred in law in admitting Polaroid photograph number 4 taken by Detective Garda O’Sullivan without making an inquiry as to its provenience (sic) or what it purported to show.
14. That the sentence imposed by the learned trial judge was an error of law and excessive.
Written legal submissions were filed both by the applicant and by the Director. I will refer to these, and to the oral submissions made by counsel to this court, in the course of dealing with the various grounds of appeal.
As can be seen a large number of the grounds of appeal are related to the evidence given by the two young boys P.B. and J.M. and it seems reasonable to deal with all these matters together in a later section of this judgment. Prior to dealing with these grounds of appeal, however, it would seem reasonable to deal with the other grounds of appeal seriatim.
Benefit of the Doubt
On this ground of appeal senior counsel for the applicant submitted that the learned trial judge failed to instruct the jury that where there was evidence capable of
two interpretations, one favourable to the prosecution and the other favourable to the accused, that they had to give the benefit of the doubt to the accused and to draw the inference which was in his favour. The learned trial judge was requisitioned on this aspect of his charge by counsel for the prosecution but refused the requisition in the belief that he has already dealt with the matter. It was submitted that he had not in fact done so.
In reply counsel for the Director, Mr Sammon, pointed out that the trial judge expressly warned the jury about the benefit of the doubt in his charge at page 8 of day 12 in the following terms:
“The accused man is innocent until he is proven guilty and the onus of proving his guilt rests on the State and they must do so beyond reasonable doubt. The accused man is not obliged to prove anything. He has to prove nothing and he is entitled to the benefit of any and every doubt.”
This reference to the benefit of the doubt by the learned trial judge is relatively brief, and a rather more detailed explanation of the meaning of the phrase “the benefit of the doubt” is sometimes given by trial judges when charging the jury.
This passage in the learned trial judge’s charge must, however, be seen
in the context of clear and quite lengthy explanation given by the judge to the jury regarding the general principles of law which should govern their consideration of their verdict. From page 3 of day 12 onwards the learned judge dealt with the need to base their findings on evidence, the meaning of “drawing an inference”, the irrelevance of his own views on the evidence, the onus of proof and the standard of proof. He laid particular emphasis on the presumption of innocence and the fact that there was no requirement for the applicant to give evidence. In that context the learned trial judge said (at page 6 day 12):-
“And in that context may I say to you if you believe what he told you, well that is the end of it and he is entitled to be acquitted without any more ado. Indeed, even if you do not believe what he said to you, that you think that it might have happened the way he has described things, then you must also acquit him because in that event you will have had a doubt.”
While the trial judge at this point did not use the specific phrase “benefit of the doubt” his direction to the jury encapsulated the principle which is generally characterised by that phrase. When this passage is taken together with the passage at page 8 quoted earlier and the general context of the charge the principle of the benefit of the doubt would in the opinion of the court be clear to the jury. Provided the principle is clear it is not necessary for the trial judge to use a particular form of words on every occasion in charging the jury.
This ground of appeal therefore fails.
The case for the defence
A number of other grounds of appeal are also based in criticisms of the learned trial judge’s charge to the jury. Counsel for the applicant submitted that in charging the jury in respect of the evidence of P.B. and J.M. the learned trial judge failed clearly or at all to put the defence case in relation to the dissimilarities between their evidence and that of the complainant . The jury were not reminded of the differences in the evidence between the complainant P.B. and J.M. In particular counsel referred to the question as to whether the complainant was the lone pupil at the lunchtime classes, the differing evidence as to the position adopted by the applicant when correcting the boy’s work, and the questions raised as to the possibility of the applicant’s penis coming into contact with the boys backs due to the plywood backs on the chairs.
In the course of his lengthy charge to the jury the learned trial judge surveyed the evidence which had been led by both prosecution and defence in some detail. He did not in specific terms summarise either the prosecution case or the defence case for the jury; the jury had, after all, recently heard the speeches of both counsel. However, in his survey of the evidence the learned trial judge was most careful to include the points made in cross-examination by the defence. He also drew the jury’s attention to a number of inconsistencies in the evidence of the complainant and of other prosecution witnesses, and highlighted clashes of evidence as between various witnesses. He gave a full account of the evidence of character favourable to the applicant given by his colleagues Mr F. and Mr C. He drew attention to the inconsistencies between the evidence of the complainant and that of the other two boys as to whether more than one boy was present at the lunchtime classes and as to whether anything untoward occurred at the regular classes as opposed to the lunchtime classes. He also noted the clash of evidence between the complainant and his mother (who was corroborated by Mr O’L) as to whether the complainant had asked his mother for “a dirty book”.
On numerous occasions throughout his charge the learned trial judge stressed to the jury that it was for them, as judges of the facts, to consider all these matters and to decide the facts of the case. In particular he pointed out that it was for the jury to decide whether the complainant was telling the truth or lying.
It appears to this court on reading the learned trial judge’s survey of the evidence as a whole that he presented a fair and balanced picture of the case made both by the prosecution and the defence. This ground of appeal therefore fails.
Excessive comment
The fourth and related ground of appeal is that in charging the jury in respect of the evidence of P.B. and J.M. the learned trial judge erred in law in commenting on the defence case of conspiracy in such a way as to resolve the issue for them.
At book 12 page 13 of his charge the learned trial judge stated:
“In that regard the defendant has said that the evidence of P.B. and J.M. is not true. Indeed he has said that it is a conspiracy, that the two lads have conspired with D.C. to make these unjustified and outrageous complaints against him. Bu, ladies and gentlemen, it is a matter for you, is there any evidence of a conspiracy between these three boys? It is a matter for you. I cannot find it.”
Counsel for the applicant submitted that having failed to put the defence case in respect of the dissimilarities between the evidence of the complainant and the other two boys, that failure was compounded by excessive comment on the part of the learned trial judge who told the jury that he could not find evidence of a conspiracy between the three boys. Counsel submitted that a trial judge is entitled to comment on the evidence but can only do so after he has clearly and fairly put the defence case to the jury and cannot do so in such a way as to resolve the issue of fact for the jury.
Counsel for the Director in reply points to the number of times during his charge that the learned trial judge made it clear that all matters of fact were solely for the jury, using directions such as “your role, you are the Gods insofar as the facts of the case are concerned” (book 12 page 2), “you are only entitled to find facts which
are supported by the evidence. You cannot speculate or go outside the evidence…” (Book 12 page 3), “if you think it is important, it is important because you are the ones who decide the facts” (book 12 page 4).
At book 12, page 4, the learned trial judge stated by way of introduction to his charge to the jury:
“Now in the course of my charge to you I will be reviewing the evidence, but needless to remark I will not be able to review every single word and in that context you should not be concerned if some matter, which you think is important, is not mentioned by me. The fact I do not mention it does not mean that it is not important. If you think it is important it is important because you are the ones who decide the facts. So if I did not refer to something or counsel did not refer to something that you think is very important or significant, be influenced by it.
I hope in the course of what I am going to say to you not to convey to you any views that I might have on the case because my views are irrelevant. But if in the course of what I do say to you you get an impression that I have a view, if that view accords with your view, fine, but if it does not agree with what you think ignore it, reject it. As I say my views are not important.”
This court accepts that the learned trial judge repeatedly laid stress on the jury’s role as the sole judges of the facts. Even in the course of the passage complained of he twice told the jury that it was a matter for them. While a number of trial judges deliberately refrain from making any comment, however mild, on the evidence before the court, this is by no means a universal rule. Comment is permissible if it is made in the course of a fair and balanced charge. It appears to this court that the learned trial judge’s brief comment, taken in the context of what we have already held was his fair and balanced charge, would not have undue influence on the jury, who were free to reject it. This ground of appeal therefore also fails.
Corroboration
A number of the applicant’s grounds of appeal deal with the issue of corroboration. His sixth and ninth grounds refer to the failure of the learned trial judge to give a corroboration warning in respect of the evidence of P.B. and J.M. and in respect of the dangers of convicting in the absence of corroboration. Section 7 of the Criminal Law (Rape) (Amendment) Act 1990 abolished the compulsory warning on the danger of convicting for rape or indecent assault in the absence of corroboration and replaced it with a judicial discretion to give a warning. Counsel for the applicant accepted that a warning would be appropriate only where some factor was present which called into question the reliability or credibility of the complainant’s evidence. However he submitted that there were a multitude of inconsistencies between the evidence of the complainant and his earlier statements, his answers in interview to J.O’L, and also between his evidence and that of P.B. This would in the ordinary course require the giving of a corroboration warning.
Counsel for the Director submitted that the issue of corroboration was a matter of discretion for the trial judge who was entitled to take into account the nature of the evidence and the manner in which the witnesses gave their evidence, the trial judge having the benefit of seeing and hearing that evidence at first hand.
Section 7(1) of the Criminal Law ( Amendment) Act 1990 provides:
“Subject to any enactment relating to the corroboration of evidence in
criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this section, be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion, having regard to all the evidence given, whether the jury should be given the warning; and accordingly any rule of law or practice by virtue of which there is such a requirement as aforesaid is hereby abolished.”
This section was fully considered by this court in a judgment delivered by Denham J. in the People (Director of Public Prosecution) v J.E.M. (Unrep. Court of Criminal Appeal 1st February 2000). At page 400 of the report in her judgment Denham J. commented:
“This section is quite clear in stating that it is for the judge to decide in his discretion, having regard to the evidence, whether the jury should be given a warning about the danger of convicting the person on the uncorroborated evidence of the other person.”
At page 401 of the report she goes on to refer to the guidance given by Lord Taylor of Gosforth C.J. in the English case of R. v Makanjuola [1995] 1 WLR 1348. Among these guidelines were the following:
“….(2) It is a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.
(3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of a witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel.
(4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.
(5) Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.”
This court accepts that the issue of whether to give a corroboration warning in sexual cases is a matter for the discretion of the learned trial judge. It does not appear to this court that the learned trial judge exercised his discretion wrongly in this instance.
The applicant also submitted that in charging the jury the learned trial judge erred in law in instructing them that the evidence of P.B. and J.M. constituted corroboration of the evidence of the complainant. The applicant draws attention to a passage in the learned trial judge’s charge to the jury where he stated:
“Before you allow yourself to be influenced by the evidence of those two young boys you must be satisfied beyond reasonable doubt, firstly, that one or other of those boys have told you the truth and secondly, that the evidence satisfies you beyond reasonable doubt, not just that Mr O’S had a tendency to rub his penis against the backs of his pupils but it is corroboration or support of the evidence of D.C. in that regard”.
Counsel for the Director submitted that the learned trial judge did charge the jury on this issue at (Book 12 page 142) as follows:
“The last thing I want to say to you is that when I was referring to the evidence of P.B. and J.M. when I said it was similar fact evidence. It is only relevant in this case insofar as D.C.’s allegation that while he was correcting his copy book Mr O’S lent over him and put his penis against his back because those two boys describe similar incidents. But their evidence is not at all relevant insofar as the allegations that D. made with regard to the rape or the alleged blow job”.
Counsel for the Director submitted that this passage made clear the difference between similar fact evidence and actual corroboration.
It seems to this court that both in this passage and in his charge as a whole the learned trial judge made clear to the jury both the extent and the limitations of the similar fact evidence. This ground of appeal therefore fails.
In his eighth ground of appeal the applicant submitted that the learned trial judge erred in law in failing to instruct the jury in respect of the presumption of innocence and onus of proof in respect of the allegations made by P.B. and J.M. Counsel for the applicant drew attention to a reference in the trial judge’s charge to the evidence of P.B. and J.M. where he said (day 12 page 11):
“There is one other matter I wanted to mention to you and it is really a matter of law and that is with regard to the evidence of the two young lads, P.B. and J.M. Their evidence, if you believed it, establishes that D.O’S has committed criminal offences against them.”
Counsel submitted that the learned trial judge did not instruct the jury that the applicant was presumed by law to be innocent of those offences or that the onus of proof to prove otherwise was on the prosecution.
Counsel for the Director drew attention to a subsequent passage in the judge’s charge (day 12 page 12) where the judge again referred to the evidence of the two boys:
“I have to warn you that you should not draw an adverse inference against Mr O’S merely from the fact that the evidence of those two boys, if you believe it, tends to show a disposition on Mr O’S’s part to commit offences similar to those charged. Before you allow yourself to be influenced by the evidence of these two boys you must be satisfied beyond reasonable doubt firstly, that one or other or both of these boys told you the truth and secondly that the evidence satisfies you beyond reasonable doubt not just that Mr O’S had a tendency to rub his penis against the backs of his pupils but it is support or corroboration of the evidence of D.C. in that regard.”
In this passage the learned judge referred directly to the evidence of the two boys when dealing with the standard of proof in regard to their evidence. Throughout his charge, however, he made it clear that at all times and in respect of all the evidence the applicant benefited from the presumption of innocence. The learned judge also dealt fully both with the onus and standard of proof which had to be applied to the evidence as a whole. In the view of this court the trial judge’s instructions to the jury in respect of the presumption of innocence and the onus and standard of proof both at the beginning of his charge and throughout his charge were clear, emphatic and sufficient both in regard to the evidence as a whole and in regard to the similar fact evidence.
This ground of appeal also fails.
The Applicant’s involvement in the Boy Scouts
In his evidence in chief the applicant stated that he was involved with the Boy Scouts of Ireland since 1972 (day 8 question 464). He had been involved both as a leader with the scout troop and also in the higher echelons of the administration of the scouting organisation.
He was cross-examined at length by Mr Sammon for the prosecution about his involvement in scouting activities and in particular about his commitment to contact with young boys in that organisation. It was, for example, put to the applicant that he seemed to have a colossal appetite for engagements involving boys.
It was submitted on behalf of the applicant to this court that the purpose and effect of the cross-examination was to insinuate that the applicant had an improper and irregular interest and involvement in the boy scout movement and that his commitment to that movement was part of his predatory interest in young boys. It was further submitted that if the necessary evidence to prove the truth of that insinuation was not available to the prosecution and was, therefore, omitted from the book of evidence such matters ought not to have been put to the accused for the first time at his trial.
Counsel for the applicant referred to the judgment of this court (Gannon J.) in D.P.P. v James Cull 2 Frewen 36 and to this court’s more recent judgment (McGuinness J. unreported 19th December 2003) in D.P.P. v Liam Campbell. In the latter case this court stressed the need for the court of trial to be alert to preventing a cross-examination from subverting or abusing the presumption of innocence. It was also submitted that the prosecution had led no evidence as to the applicant’s involvement in the boy scouts or as to any sinister implications thereof. The applicant was taken by surprise by the extensive and pointed cross-examination.
Counsel for the Director submitted that this portion of the cross-examination evidence arose from the evidence of the accused in chief that he was a man who had enjoyed heterosexual relations. In that regard, evidence had been given by the applicant of one particular and important heterosexual relationship to assure the jury that his sexual propensity was neither homosexual nor inclined towards paedophilia. The prosecution was therefore entitled to cross-examine the accused on his sexual propensities and to ask him to comment on the amount of time and manner in which he spent his time both free and working almost exclusively in the company of young adolescent boys.
It is accepted by this court that the matter of the applicant’s considerable involvement in the boys scouting organisation first arose in his own evidence in chief. It was, therefore, open to counsel for the prosecution to cross-examine him on this evidence even in the absence of any evidence being led on this subject by the prosecution. The tone of this cross-examination was not particularly attractive and it might have been thought wrongly to imply that any involvement in the boys scouting organisation connoted a tendency to seek exclusively the company of young boys. Robust cross-examination is not, however, impermissible. It does not seem to us that the situation in this case is on all fours to that which arose in D.P.P. v Campbell. In that case the applicant was cross-examined about new matters which had not properly arisen either in his own evidence or in the prosecution’s original case. It does not appear to us that the nature of the cross-examination of the applicant on the subject of scouting was such as to render the trial unfair.
The photograph
A further ground of appeal was that the learned trial judge erred in aw in admitting Polaroid photograph no 4 taken by Detective Garda O’Sullivan without making an enquiry as to its provenance or what it purported to show.
The Polaroid photograph in question was produced to this court. It appears to be connected with the making of “string pictures” but neither its subject matter nor any implication therefrom was at all clear to the members of this court. This ground of appeal was not pressed by counsel for the applicant.
The admissibility of similar fact evidence
The court now turns to what is in effect the applicants’ principle ground of appeal. In essence the applicants’ submission is that firstly the evidence of P.B. and J.M. should not have been admitted at all and secondly, once that evidence had been given, its nature was such that the learned trial judge should have acceded to the defence’s application to discharge the jury.
The evidence of two young boys, fellow pupils of the complainant was ruled to be admissible by the learned trial judge on the grounds that it was “similar fact” or more properly “system” evidence.
The applicant had originally been returned for trial in respect of offences alleged against the complainant and others including P.B. and J.M. The Director of Public Prosecutions had subsequently elected to prosecute the offences alleged by the complainant separately and in isolation from the other alleged offences. On the fifth day of the trial and on the application of the prosecution the learned trial judge exercised his discretion to admit the evidence of P.B. and J.M. of extraneous acts of sexual assault alleged against the applicant. In his ruling as to its admissibility (Book 5 page 97) the learned trial judge accepted that the proposed evidence was extremely prejudicial but nonetheless decided to admit it as “evidence of a system of conduct which bears a striking resemblance to acts complained of by the victim D.C.” He went on to say that the proposed evidence bore “a very striking resemblance” in respect of “one aspect of the complaints” which the complainant made against the applicant and that it was in that regard evidence “of a high probative value”. Counsel for the applicant submitted that the learned trial judge did not in fact state what the probative value of the evidence was nor did he hold that the probative value of the evidence outweighed the prejudicial effect it would have on the accused.
P.B. and J.M. accordingly gave evidence at the trial. Subsequent to their evidence counsel for the defence made an application to the learned trial judge to discharge the jury (Book 7 page 1 onwards). Counsel relied on an extract from Richard May on Criminal Evidence at paragraph 6.21:
“If during the course of the case the probative value of the evidence is weakened to such an extent that the original ruling as to admissibility has to be reconsidered it may become necessary to discharge the jury.”
Counsel went on to argue that such a re-consideration had to be made on account of the “striking dissimilarities” between the evidence of P.B. and that of the complainant. He went on to list a number of dissimilarities. In reply to this application the learned trial judge ruled as follows (Book 7 page 3):
“I accept that there are dissimilarities. There was a basic similarity between the three stories given by the three witnesses, D .C., J.M. and P.B. That was that the accused was behind them and that he was putting his penis against their backs. That is a striking similarity and that thread was through the evidence of all three of them.”
The learned judge went on to say that he believed that it was proper to admit the evidence and he still thought it was proper that the evidence was admitted because of the similarity. In his view it was open to counsel to point out dissimilarities to the jury and that might well influence them.
In submissions to this court the applicant through his counsel drew attention to the various inconsistencies and dissimilarities between the evidence of the complainant and that of P.B. and J.M. He pointed out that the evidence of D.C. was that the applicant abused him furtively, having isolated him in a locked room with no other boys being present. The evidence of P.B. disclosed alleged criminal conduct which was engaged in openly in the presence of other boys both during the morning and lunchtime classes. Moreover the complainant maintained that he attended the lunchtime classes on his own so that P.B. could not have been there whereas P.B. gave evidence of being present. Furthermore the complainant had given evidence that the applicant’s penis could not have touched the lower part of his back because of the plywood back on the chair whereas P.B. said that he could feel the applicant’s penis on his back about half way up. The evidence of three boys was also contradictory in regard to the attitude assumed by the applicant – whether he was standing, kneeling or genuflecting. The evidence of J.M. also complained of alleged wrongdoing which was openly engaged in the presence of other boys.
The applicant submitted that the learned trial judge had failed to state what the probative value of the proposed similar fact evidence was and how it is relevant to an issue to be tried by the jury since the defence had never raised the defence of accidental touching. The learned trial judge had also failed to measure and to weigh the probative value and prejudicial effect of the evidence.
Counsel for the Director submitted that in fact there were striking similarities in the evidence of the three boys. He listed a number of specific similarities. The acts took place in the remedial classroom when a remedial class was in operation. The applicant came behind the boy in the classroom upon the pretext of inspecting his homework or class work whilst the boy pupil was sitting at his desk. The applicant lent up against the boy’s back so that the boy complained of feeling the applicant’s penis in his back. The boys described that the applicant leant his hand or hands on the school table as this happened. Mr Sammon conceded that ordinarily evidence of other misconduct is not permitted to go to the jury under the general exclusionary rule as it is prejudicial. However he submitted that in this case the probative value of the proposed evidence outweighed its prejudicial effect and thus it was correct to allow it under the exception to the rule. The learned trial judge had correctly admitted the evidence of both boys. This court was referred by both counsel to the law on the admission of similar fact evidence as set out in Makin v Attorney General for New South Wales [1894] A.C.57, Regina v Boardman [1975] A.C. 421, D.P.P. v P. 2 A.C. 447 and The People (Director of Public Prosecutions) v B.K. [2000] 2 I.R. 199.
In delivering the judgment of this court in D.P.P. v B.K. Barron J. reviewed the earlier cases of Makin and Boardman and fully considered the law on similar fact or system evidence.
In that case the applicant had been convicted on several counts of attempted buggery and indecent assaults against various young males. The applicant sought leave to appeal against both conviction and sentence, his grounds for appeal being that each of the counts, as far as they related to a different boy, should have been tried separately and he was thus prejudiced by being charged by more than one offence in the same indictment. It was held by this court in allowing the appeal that the test as to whether several counts should be heard together was whether the evidence in each count would be admissible on each of the other counts. To be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. Similar fact evidence was inadmissible on the basis that just because a person might have acted in a particular way on one occasion did not mean that such person acted in the same way on some other occasion. However, system evidence was admissible because the manner in which a particular act has been done on one occasion suggested that it was also done on another occasion by the same person and with the same intent.
In the judgment Barron J. made a careful distinction between “similar fact evidence” and “system evidence”. At page 203 of the report he stated:
“For such evidence to be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. In practice this test is applied where there is a similarity between the facts relating to the several counts. On the one hand, there is system evidence which is so admissible; and on the other hand, there is similar fact evidence, which is inadmissible. In the latter case, the reason is that, just because a person may have acted in a particular way on one occasion does not mean that such person acted in the same way on some other occasion. System evidence on the other hand is admissible because the manner in which a particular act is being done on one occasion suggests that it was also done on another occasion by the same person and with the same intent.
There is a clear line of division between these two types of evidence even though it may be difficult in an individual case to say which side of the line the particular case falls. While the court uses the expression ‘system evidence’ and ‘similar fact evidence’ to distinguish the two types of evidence, in some of the authorities to which we refer the words ‘similar facts’ are used to describe what we refer to as ‘system’. This in itself does not affect the reality of the distinction.
The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of allegation is overborne by the probative effect of the evidence.”
Barron J. went on to quote with approval the judgment of Lord Hailsham of Marylebone in Regina v Boardman [1975] A.C. 421. Lord Hailsham had quoted the judgment of Lord Herschell L.C. in Makin v Attorney General for New South Wales. Barron J. went on to comment:-
“He (Lord Hailsham) then proceeded to refer to various cases which showed the circumstances in which the second part of the quotation was applied. He made it clear that the categories of cases in which that rule applied were not closed. As he put it at page 452: ‘the rules of logic and common sense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety.’”
Later in the judgment (at page 208 to 209) Barron J. goes on to quote with approval the judgment of Lord Mackay of Clashfern in the House of Lords in D.P.P. v P. [1991] 2 A.C. 447. Lord Mackay had said (at page 460):
“As this matter has been left in Regina v Boardman [1975] A.C. 421 I am of opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another…
From all that was said by the House in Regina v Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused intending to show that he was guilty of another crime.”
Lord Mackay had formulated the test at page 462 of his judgment as follows:
“When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim about what occurred to that victim is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides stronger support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection.”
The question of the admissibility of similar fact or system evidence was also referred to by Budd J. in his judgment in B. v Director of Public Prosecutions [1997] 140. Following a survey of the law as expressed in Makin and Boardman and in The House of Lords in D.P.P. v P. Budd J. went on to say (at page 157):
“In Director of Public Prosecutions v P. [1991] 2 A.C. 447, the evidence was admissible because each girl independently described a prolonged course of conduct involving the general domination of the family by the accused, who seemed obsessed with keeping the girls to himself. I should add that the mere existence of multiple accusations of similar offences does not mean that the evidence will be admissible as it is still essential that there should be a sufficient degree of probative force to overcome the prejudicial effect of such evidence. Whether the accounts of each of several complainants are corroborative and also the risk of collusion, either by conspiracy or where one witness has been unconsciously influenced by another, may well be relevant factors at the trial. It seems that the underlying principle is that the probative value of multiple accusations may depend in part on their similarity, but also on the unlikelihood that the same person would find himself falsely accused on various occasions by different and independent individuals. The making of multiple accusations is a coincidence in itself, which has to be taken into account in deciding admissibility.”
In the instant case the learned trial judge first considered the question of the admissibility of the evidence of P.B. and J.M. on day 5 of the trial. Full submissions on the facts and on the law were made by counsel on both sides. The learned trial judge made a clear statement of the test of admissibility which he would apply. On day 5 page 86 he stated:
“There is no doubt, Mr O’Carroll, it’s prejudicial evidence as far as Mr O’S is concerned, no doubt about that at all. The question now is; does it, does its probative value, insofar as the allegations being made by D.C. are concerned, exceed and outweigh its prejudicial value so as to render it admissible?…That is the question I have to decide.”
Having heard further submissions from counsel the learned trial judge went in to make a ruling (day 5 page 98). Having referred to the submissions of counsel and having accepted that the evidence, if given, would be extremely prejudicial, he went on to say:-
“But insofar as sexual assault is concerned, the evidence of these two young men bears a striking resemblance in respect of one aspect of D.C.’s complaints to the manner in which he described the accused’s behaviour towards him. And the very striking resemblance between what they say and the evidence which D.C. gave, as I say, in respect of one aspect of the complaints which he makes against Mr O’S. To that extent Mr Sammon submits that that evidence is of probative value in this case and I have no doubt that that is so. But Mr Sammon goes further and he says it is of high probative quality and so much so that its probative value outweighs its admitted prejudicial effects insofar as the accused is concerned. And essentially what he is saying is the interest of justice demand that the jury have available to them this evidence, otherwise they will not be getting anything like the full picture. Now, I accept that there are various laws which limit evidence which a jury may hear and to that extent a jury may in certain cases be asked to try a case in blinkers. And perhaps it was inappropriate for him to use that phrase in the context of this application. However, it does seem to me, and I accept the application of Mr Sammon, that this evidence is of a high probative value and I think that it would be wrong and contrary to the interests of justice were I to allow this case to proceed in the absence of that evidence. I take on board the submissions which have been made to me by Mr O’Carroll and it may well be that he will be able to establish that there is a conspiracy between these boys. If so, well and good, but that is as may be. And given, in particular, that Mr O’Carroll suggested and put to D.C. in the course of cross-examination that he had invented the complaints against Mr O’S, it seems to me that this is another reason why it is appropriate that I should admit this evidence. Accordingly, I will direct that P.B. and J.M. may be called to give evidence in accordance with the statements which are included in the book of evidence which has been served on the accused.”
The following day P.B. and J.M. gave their evidence. They were examined in chief and cross-examined. As has been set out earlier in this judgment on day 7 of the trial counsel for the defence made an application to discharge the jury in the light of the evidence given by P.B. and J.M. This was based on what he described as the dissimilarities between the evidence of D.C. and the evidence given by P.B. and J.M. In the passage which has already been quoted earlier in this judgment the learned trial judge refused to discharge the jury. He accepted that there were dissimilarities in the evidence but held that there was a basic similarity between the three stories given by the three witnesses. He described that as a striking similarity.
The question before this court is whether the learned trial judge rightly exercised his discretion in admitting the evidence of these two witnesses. The learned trial judge clearly identified the test which he had to apply. This test has been well established in the earlier law and has been approved by this court in Director of Public Prosecutions v B.K. The learned trial judge held that there were “striking similarities” between the evidence of P.B. and J.W. and that of D.C. In the view of this court there were indeed strong similarities in the location, the timing and the manner in which the three witnesses alleged that the applicant committed the particular offence of rubbing his penis against their backs while correcting their work in the remedial classroom. In the course of their actual evidence a number of dissimilarities of detail emerge, for example in regard to timing, in regard to the presence or absence of other persons and in regard to the exact position taken up by the applicant while correcting their work. Such dissimilarities are not entirely surprising. The court is considering the evidence of three young boys who at the time of the alleged offences were in or about eleven years of age, still attending primary school. They were giving evidence at a trial which took place some three years later. Even in the case of adult witnesses the recall of matters of detail may be difficult after a lapse of three years. If, indeed, the evidence of the three witnesses concurred exactly in every detail it might well have given rise to a suspicion that they had conspired to concoct their evidence or at least had contaminated their evidence by discussing it in advance between themselves.
The type of assault described by P.B. and J.M. was unusual as well as similar in nature to that described by D.C. and this would add to the probative weight of the evidence of the two other boys in the context of the evidence of the complainant. In the view of this court the evidence of P.B. and J.M., with its unusual and similar features, was indeed what was described by Barron J. in the B.K. case as “system evidence”. As Barron J. said it is admissible “because the manner in which a particular act has been done on one occasion suggests that it was also done on another occasion by the same person and with the same intent.” (page 203).
It seems to the court that the evidence falls on the right side of the clear line of division between similar fact evidence and system evidence. In the view of the court the learned trial judge was correct both in admitting the evidence of P.B. and J.M. and in refusing to discharge the jury subsequent to their evidence. This ground of appeal also fails.
The remaining ground of appeal which is related to the similar fact evidence is Ground No. 5 – that the conviction is unsafe by reason of the fact that it was procured in part by allegations of offences against P.B. and J.M. in respect of which the applicant has since been tried and acquitted by a jury. In his written submissions counsel for the applicant argued that evidence of the commission of alleged extraneous offences by an accused person should not be admissible where the trial of those offences is pending against the accused. The admission of such evidence is anomalous and results in two trials of the same issues before two juries who can return differing verdicts as in fact occurred in the instant case. No great emphasis was put on this ground in oral argument before the court.
In our opinion the fact that the applicant was subsequently acquitted of charges in relation to alleged offences against P.D. and J.M. cannot affect the issue of the admissibility of the similar fact evidence in the instant case. The issue of the admissibility of the similar fact evidence was fully argued in the absence of the jury at the trial and proper warnings in regard to it were given by the learned judge in his charge. The matter was fully argued on appeal before this court and has been discussed earlier in this judgment.
The jury at the applicant’s trial were correctly instructed by the trial judge that they must decide the case solely on the evidence that was before them. It must be presumed that they did so. It has not been suggested to this court that any new evidence emerged subsequent to the conviction of the applicant which would ground an application to quash his conviction as being unsafe and unsatisfactory (see for example The People (Director of Public Prosecutions) v Gannon [1997] 1 I.R. 40.)
The fact that a different jury reached a particular verdict on the evidence that was presented to that jury does not of itself undermine the validity of the verdict in the present trial. This ground of appeal also fails.
The court therefore dismisses the applicant’s appeal against conviction. The court will hear counsel as to the hearing of the applicant’s appeal against severity of sentence.
This judgment includes consideration and decisions in respect of certain submissions made by counsel to the court on 29th June 2004. It replaces and extends the judgment delivered by the court on 27th May 2004.
DPP v JS
[2013] IECCA 41
Judgment of the Court delivered by Mr. Justice MacMenamin on the 17th day of July, 2013.
1. The appellant was convicted in the Central Criminal Court on one count of rape and 14 counts of sexual assault of his niece, the complainant, between the months of May 2002 and April 2004. He was sentenced to seven years on the count of rape, and two years on each of the counts of sexual assault, the latter sentences to run concurrently, but consecutive to the sentence for rape. The events in question occurred either at the home of the complainant, whose family are involved in farming, or the home of her uncle, the appellant, also a farmer, who lived nearby. At the relevant times, the complainant was aged between 13 and 15 years. The main focus of this appeal relates to the complainant’s testimony on one of the counts of sexual assault which, she said, occurred in the summer of 2002.
2. Two issues lie at the centre of this appeal. First, it is said that the learned trial judge misdirected the jury in relation to what is termed a “Lucas warning” regarding the evidence of this assault in the summer of 2002. Second, it is contended that the charge was unsatisfactory and misled the jury through an alleged disparity or imbalance in the manner in which the judge characterised certain prosecution evidence by contrast to his description of parts of the defence case.
The Lucas Warning
3. That false statements made by an accused, if they are found to be lies, may, in certain circumstances be corroborative of guilt is now well-established as part of our law (see The People D.P.P. v. Brady, (Unreported, Court of Criminal Appeal, 5th May, 2005); The People D.P.P. v. Cleary (Unreported, Court of Criminal Appeal, 3rd March, 2006); The People D.P.P. v. Massood (Unreported, Court of Criminal Appeal, 24th July, 2009)).
4. In this case, counsel for the appellant raises issues on both the nature and extent of the warning given to the jury. It is said that the judge misdirected the jury by failing adequately to warn them that, when an accused has made statements out of court, which are shown to be false, such statements may be treated as corroboration, but that there may other circumstances which explain or excuse such conduct which may not be consistent with guilt.
5. The Lucas warning was a subject of discussion in the judgment of this Court in Director of Public Prosecutions v. Curran [2011] IECCA 95. The general format of the “Lucas warning” is by now well known. As will be seen, in this appeal, there was a strong resonance between the actual words used by Lord Lane L.C.J. in the case of R. v. Lucas [1981] QB 720, and the characterisation deployed by the trial judge in his charge to the jury.
6. In Lucas, Lord Lane L.C.J. put matters this way:
“Statements made out of court, for example, statements to the police, which are proved or admitted to be false may in certain circumstances amount to corroboration. There is no shortage of authority for this proposition … It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew if he told the truth he would be sealing his fate…”
The judge then outlined the nature of the warning to be given:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”
Background
7. It is necessary now to consider some further background to this case. The complainant testified as to the circumstances of the first sexual assault upon her. This was said to have taken place in the summer of 2002. The complainant was able to identify specifically the time and circumstance by reference to the activity which was going on in the appellant’s farm which she was visiting. She testified that the first occurrence was after the school holidays. There was baling going on on the farm.
8. The complainant testified that the appellant was picking up bales from one of the top fields on his farm and bringing them down to a bottom field which she identified. The bales were to be cut and wrapped. She identified family members who were there. These were her own brother and two of her cousins, children of the appellant.
9. What follows is a summary of the complainant’s narrative of events in evidence. She said that she and her cousins were all taking spins on the tractor. She testified that the appellant got on the tractor, and she stayed there, on a small seat to the left of the main driver’s seat. The appellant went to go and pick up a bale from the top field when the other children were back down in the lower fields. As the appellant was driving the tractor, he asked the complainant “what would you do if I placed my hand high up on your leg?”, and claimed that it would be “no harm” as he was her uncle. She described the assault. The complainant said she lifted his hand away. She said the appellant repeated these actions as he was going back down towards the field to drop off the bale. Again, the complainant lifted his hand off. She testified to the jury that she was bewildered, embarrassed and questioning herself as a result of what happened.
10. Three years later, the appellant was interviewed in the course of an investigation which began in August 2005. He denied each and every one of the allegations. At interview he suggested that complaints had been made against him because the complainant’s family were trying to blackmail him and because they had a grudge against him for having sold a field. No evidence in relation to these claims was adduced at the trial.
11. The appellant was asked at interview about the first incident of sexual assault. It was put to him that this had occurred while hay was being baled in May or June, 2002. The appellant point blank denied having made any bales at all in 2002. He specifically distinguished that year from other years. By way of distinction to 2002, he gave an account of his farming activities in the years 2001 and 2003. Some of his words are set out below. It must be noted that the appellant (as was his right) did not testify at the trial. However, at interview he denied having made round bales in any of the three or four years prior to the interview in 2005. He said the last time that he collected bales, his nephew helped him. He was specifically asked at interview:
“Q. When did you last cut round bales in your fields?
A. 2001 in one field.”
Later, he was asked at interview:
“Q. If she (the complainant) made up this story, why?
A. I don’t know why this story was made up against me. It was said to me I put my hands up her leg when I [sic] taking bales in 2002. I made no bales in 2002. I bought in bales in 2003. I made bales in 2001.”
Later, the appellant reiterated he had “reseeded the ground in 2003” and, specifically, that he “made no bales in 2002”, as in that year he ploughed the fields.
12. Clearly an issue of credibility arose. Was there any corroborative evidence on either side? The appellant was asked by the gardaí at interview who had made bales for him. He identified two people. He said one of these two, a Mr. P.D., made bales only in one year for him. This information was provided in the context of a specific denial that the appellant had not made any bales in the year 2002.
13. The gardaí interviewed Mr. P.D. His evidence showed that the appellant was wrong in what he had said. Mr. P.D. in his statement had said that he had checked his records, and that in fact he had mowed, baled and wrapped 42 round bales for the appellant on the 17th July, 2002. He produced business records to the gardaí to bear this out. Mr. P.D. was not asked to testify in court but his evidence was accepted, read out to the jury and was not subject to any challenge.
14. As outlined, the complainant identified the first incident as having occurred in the summer of 2002 when baling was going on. It may be added that the appellant’s son also testified in the case that he recalled baling silage in 2002. However, his evidence was that on the date the complainant was there, he, and not his father, the appellant, had been driving the tractor. Clearly then, an issue arose as to the appellant’s statement which had transpired to be false on this important “island of fact”. Could this statement be taken as corroboration? Neither prosecution nor defence demurred that the circumstances were such as to warrant a warning to the jury that the false statement might be explicable for a number of reasons.
15. Before counsel’s speeches, the trial judge asked for submissions on the issue of the appellant’s claim in the interview that he had not made any bales in the year 2002. Counsel for the appellant asked that, if there was to be any comment on the point, that it should be placed in context, including a comment from the judge that the interview had taken place some three years after the first allegation, and that the defence evidence (from the appellant’s son) was that bales had actually been made in 2002. Counsel submitted that the judge should charge the jury that the statements should be seen in the context of a man who made bales on and off for years and that what he had told the gardaí was as likely to be a mistake as a lie, and could be seen as an example of an area where the accused should be given the benefit of the doubt.
The judge’s charge
16. The judge’s charge was very meticulous. When he directed the jury on the question of the first sexual assault, he correctly pointed out that if they were to hold that what the appellant had told was lies, that it was corroborative only in relation to that one count. He stated that whether or not such lies were actually corroborative was a matter for them. He indicated that the jury must be satisfied that the reason for the lies was a realisation of guilt and a fear of the truth. He went on to point out that people lie for other reasons. He instanced shame, a desire to conceal disgraceful behaviour from one’s family or “out of panic or out of misjudgement or out of confusion or out of indignation that the suggestion one had done wrong”.
17. He specifically stated to the jury:
“And of course especially in the case of interviews with Gardai an accused might have failed merely to recollect something which upon his memory being jolted in cross examination he subsequently does recollect or subsequently recollects afterwards; not necessarily in the witness box.”
The judge instanced circumstances where an accused might tell lies or be under great stress. He concluded by saying:
“So these are factors which are to be borne in mind when weighing up the issue of whether or not things which are capable of corroboration.”
Self-evidently then, the warning he gave was redolent in its terms of precisely the illustration given by Lord Lane L.C.J.
18. However, counsel for the appellant makes the case that the warning was not sufficiently contextualised. It is said that the judge should have specifically warned the jury that the appellant may have been mistaken in identifying the year and that, in this, they should give the appellant the benefit of the doubt.
19. In response to this, the court would observe that among the circumstances where the judge indicated that a person might or tell untruths were out of “panic” or “misjudgement” or “confusion” or “indignation”. He specifically stated there might have been failure “merely to recollect something”. In the court’s view, there is no real distinction between what counsel contends should have been said and what the judge actually stated. It is difficult to avoid the conclusion that what is in issue here is a matter of phraseology or the precise terms used by the judge. It is not the function of this court to parse and analyse the statements of a judge in his or her charge to the jury with the benefit of hindsight. What must be in issue is whether the judge erred in a statement of law or misled the jury as to facts. Otherwise, a trial judge must enjoy a discretion as to the words he uses.
20. The Court has not been convinced that there was anything untoward in relation to the warning which was given by the trial judge in this case. We would observe that there was actually no evidence put before the jury that the appellant had actually been mistaken in his identification of the year. Second, it is difficult to avoid the conclusion that what is being contended for is, in fact, simply a choice of words more favourable to the appellant. In the view of the court, there is no substantial distinction to be made between the concept of the appellant having made a “mistake”, or (as the judge identified) having made a misstatement out of panic, misjudgement, confusion or failure of recollection. The accused has no entitlement to words of his counsel’s choosing. It is impossible for the court to conclude that the warning, as phrased, contained an error.
21. One of the issues counsel for the appellant raised on requisition was the nature of the Lucas warning. The requisition was couched in careful terms. It cannot be said that the submission was that he had committed any error in law. What was in question was emphasis. But it was not submitted the charge was generally unfair, biased, or that the judge held the scales unevenly. It appears all parties were at the time under the misapprehension that the judge specifically mentioned the question of “mistake”, albeit only once. In fact, he did not use the word at all. Be that as it may however, counsel submitted that the idea of “mistake” had only been mentioned in the context of an entire list, to which the judge responded that this was sufficient. We are not persuaded he erred in this.
22. The Court would again emphasise that it is not its function to lay down precise or definitive terms in which a Lucas warning, if required to be given, should be given. This must be a matter for the trial judge to decide on the facts of each case. Obviously, it should be contextualised to the degree that is necessary. It might be said that the question as to the appellant’s untruths went to his credibility rather than guilt or innocence. However, on an issue of this type, there may be a thin line to be drawn between credibility on the one hand, and the question of guilt or innocence on the other. Here, the issue could have been the word of one person against another. The appellant had been very explicit indeed in his denial of carrying out any baling in 2002, even to the extent of advancing reasons why it could not have occurred in that year. This was not a passing comment in the interview. His assertion was repeated more than once. The issue was specifically put to him in circumstances where there could have been no misapprehension on his part as to its nature or importance. No evidential basis was established as to how or why the appellant might have been mistaken. The judge very specifically addressed the issue of the benefit of the doubt in the course of his charge. It is not necessary for each point to be repeated by a judge in a manner which would favour the accused over the prosecution.
23. In the circumstances, the Court concludes there has been no error in principle or misdirection to the jury in this regard.
Characterisation of evidence
24. However, the appellant make another point, which is somewhat more nuanced. It is said that not only was there insufficient emphasis on the possibility of a mistake in the Lucas warning, but that, in the context of that warning, the judge went on to use the word “lies” on a substantial number of occasions in the context of explaining that persons may sometimes tell lies for reasons unrelated to a realisation of guilt and fear of the truth, as indeed did Lord Lane L.C.J, because the Lucas warning is solely concerned with the issue of lies and corroboration. It is quite true that the judge did use the word on a significant number of occasions. The contention here is whether it can be said that the Lucas warning given by the trial judge, taken in its entirety, was unbalanced or favoured the prosecution over the defence, because each time he used the word “lies”, he did not add, “provided you are satisfied beyond reasonable doubt by the prosecution that they were lies”, or some similar formula.
25. The court considers this to be unnecessary and inappropriate in the course of a Lucas warning. It is however incumbent on the trial judge in the course of his charge to the jury to instruct them that the prosecution must satisfy them beyond reasonable doubt that the particular utterances were lies – deliberate falsehoods – and were not due to some erroneous but nonetheless legitimate and genuine belief on the part of the accused, e.g. mistake, misjudgement, confusion, etc.
26. A number of points arise here. By way of further background, while the complainant was of a young age, it emerged she had been subjected to sexual assaults by a cousin, who had later died. But it then emerged that she had also been the subject of sexual assaults by her own father. All this came out after her complaint about the appellant. She was subject to cross-examination on the basis that the information regarding the appellant had first been volunteered a number of months prior to the information about her father (who subsequently pleaded guilty) and her cousin.
27. This was put to the complainant. She responded on cross-examination that the manner in which the information emerged was very much as a result of obeying the wishes of her mother, and that, the absence of any mention of her father until a later time was as a result of pressure from her mother. The judge is criticised for having characterised the fact that the first statement from the complainant in 2004 did not reveal this latter information as being “a half truth to put it no higher than that”.
28. Counsel for the appellant submits that, on only one further occasion in the charge, did the trial judge raise the question that the complainant and her mother had not fully informed the health authorities and the gardaí for at least a year and a half about the full picture. This was at a time when the offences were being investigated. Counsel for the appellant submits the charge was flawed in that the judge characterised this conduct as being “something in the nature of a half truth”, and described these as being matters which the jury might regard as “relatively minor inconsequential matters” and that the jury should bear in mind that the complainant was young.
29. The Court is not persuaded that these are issues of substance. There is nothing which could be properly characterised as being an error in principle, a misdirection, or an imbalance. At risk of repetition, the phraseology adopted in a judge’s charge to the jury need not always be euphemistic. The words a judge uses need not always be those which are most favourable to the accused provided there is an accurate summation to the jury as to the law and the facts. As the court has already indicated, the Lucas warning only arises in the context of lies – deliberate falsehoods – and whether they can amount to corroboration. It is solely concerned with reminding a jury in an appropriate case that the accused may have told a lie or lies for a motive other than a realisation of guilt and a fear of the truth. The warning is concerned solely with an alternative motive for lying. The necessity for such a warning will not arise in every case.
30. A trial judge may not, of course, comment on evidence in a manner which may unfairly influence the jury’s determination on a matter of fact. However, it cannot be said that there was anything in the judge’s conduct here which could be said to constitute “approval” of one view of the evidence over another. As the court has already pointed out, the trial judge clearly and unambiguously reminded the jury that persons might tell untruths out of poor recall, panic, misjudgement, confusion or indignation. A “mistake” is an error in judgment and a “misjudgement” is an erroneous opinion of something. This court is satisfied that the trial judge made the matter sufficiently clear in his charge to the jury and a charge cannot be considered insufficient or unbalanced because the trial judge failed to advert to some other possible motive for the untruth which then or subsequently came to mind. This court is also quite satisfied that the trial judge clearly directed the attention of the jury to the important consideration that what the appellant stated to members of the gardaí at interview might not be a deliberate falsehood – a lie – and the onus was on the prosecution to prove beyond reasonable doubt that it was a lie. The trial judge gave sufficient examples of possible alternative explanations for the untruth, and these were clearly not accepted by the jury. A trial judge may, in fact, comment on evidence and arguments put forward, but he cannot comment to a degree which imperils a fair and proper trial. The acid test is whether, taken as a whole, the summing up is balanced and fair. But that is not to say that when directing a jury, a judge is disentitled to express his opinions on the facts of a case, provided that he leaves the issues of fact to the jury to determine. A judge is, of course, not entitled to use language such as to lead a jury to lead them to think that they must find the facts in a particular manner.
31. This is not a situation where it can be said the judge in any way “commended” a witness or bolstered credit through comment. What arose here, rather, is a situation where the judge used particular terminology which it is now suggested went insufficiently far in its criticism of the conduct of the complainant.
32. The court is not persuaded that any of these concerns could in any sense be seen as constituting an unbalanced charge, or an unfairness to the accused. Over a number of hours, the judge carefully charged the jury as to the law, the burden and standard of proof, and the necessity to give the accused the benefit of the doubt. He went through the facts and evidence in very great detail. As always, the essential test is whether there was unfairness. The court has not been persuaded that there was any unfairness in the trial and, consequently, will reject this ground also. The appeal must therefore be dismissed.
DPP v McCurdy
[2012] IECCA 76
JUDGMENT of the Court delivered the 27th day of July, 2012 by Hardiman J.
This is the appeal of the appellant against conviction and sentence. After a trial lasting six days, the appellant was found guilty on the 17th day of May, 2010 on three counts of sexual assault against three separate girls. On the 14th October, 2010 he was sentenced to two years and three months imprisonment in respect of counts 1 and 2, and three years imprisonment in respect of count 3, all sentences to run consecutively. It appears that the learned trial judge had considered that a total sentence of ten years imprisonment was appropriate to the offences but reduced the sentence in each case to take account of the totality principle. The actual sentences total seven and a half years.
Issues.
The appellant complains of the type of corroboration warning given by the judge to the jury and in particular complains that the learned trial judge told the jury “that the evidence of one complainant necessarily corroborated the evidence of the other two in each case”. He further complains “that no application had been made by the prosecution to have ‘similar fact’ or ‘system evidence’ as it is sometimes called admitted”.
The appellant also complains that the judge understated, or failed to state, the risk that a process of contamination as between the complainant witnesses, all of whom were young girls and close neighbours, might undermine the required independence of the evidence of each respectively, and thereby disqualify it from constituting corroboration.
Factual background.
The defendant resided at all material times in a housing estate in or near a town in rural Ireland. All of the assaults are said to have taken place there. In the case of one of the girls, she was in the house to baby sit a child; in the case of the other two they were simply attending a “sleep over”, as friends of the appellant’s daughter.
In each case it was alleged that the indecent assault consisted of getting each of the girls to touch him in an indecent way and with similar results. The offences are closely related in time, the first being alleged to have occurred in December 2006, the second on the night of the 6/7th of January, 2007 and the third in February, 2007. The girls were all thirteen or fourteen years old. There was evidence of a complaint in April, 2007.
There was originally a fourth count in respect of a fourth girl which however was not proceeded with.
Opening of the case.
Prosecuting counsel in opening the case to the jury referred to the existence of multiple counts, three in all. In the circumstances of the case it is necessary to consider what was said at that time and we therefore set it out. We wish to say, however, that every transcript of an oral hearing will contain certain infelicities in language and oddities of grammar which reflect simply the difference between an oral and a written presentation. This will appear later in the statements of other speakers as well and generally does not affect the understanding of what is said.
Counsel said:
“Now, they’re related in that each of these girls, they were friends of [the appellant’s daughter] and that was the reason they were staying over… and the similarities, as I say, are there in that each case the type of sexual assault that occurred was of a specific type. It was of a man taking the girls hands to him – to his penis – rather than going and touching up the girls or anything like that. So there is a certain similarity in the way each of these girls was actually assaulted in that there was a particular way that [the appellant] did this. There is the other element there of the drink involved, but these were all matters that, as I say, you’ll be hearing in evidence. I’ve just outlined the facts there, but you’ve got to remember, these are three individual cases. They have, as I say, connections. There are similarities, but in fact they are three separate cases. There’s a separate count of sexual assault in relation to each of these girls and you approach each of these cases looking to see is there evidence on these cases – in this the particular case, that satisfied you beyond reasonable doubt as to what happened there and that does not mean, of course, that you have to ignore what the other cases are about, but you have to satisfied that on the evidence that you hear on that particular case there is sufficient that you can be satisfied of [the appellant’s] guilt beyond reasonable doubt on that case against him”.
After the case had been opened on behalf of the prosecution defence counsel made certain complaints about the opening but these did not extend to the reference to similarities in the way each girl was assaulted.
On the fourth day of the trial, after the prosecution case had finished, defence counsel raised the issue of whether the judge proposed to give a corroboration warning and referred to the case of D.P.P. v. JEM.
The judge indicated that “it’s in my mind to give a form of warning but… I have not decided [it] and I’m going to hear both sides before doing so”. He then continued:
“I will also telling them obviously, which I don’t think could be in controversy, that they’re entitled to consider on each charge the evidence of the other complainants which, of course, would perhaps dilute the risk which might arise in as much as it would mean that there was more evidence than merely the bare word of a complainant, even if it didn’t constitute corroboration, that’s the form of charge I’ve given in one or two other cases of this type”.
The Court then adjourned for lunch.
After lunch, the defence counsel, Mr. Finlay S.C., first sought a direction, which was refused. He then returned to the topic of a corroboration warning (Day 4, p.32) and the judge indicated that it could be dealt with at the end of the defence evidence. It was taken up again at p.46 of the same volume of transcript.
Defence counsel opened the leading authorities in his submissions. He referred to the statement the learned trial judge had made, quoted above, and submitted that if the judge was of the view:
“… that while there is an absence, if you like, [of] corroborative testimony or evidence that would support or tend to corroborate the allegations of each one of them independently, you nevertheless would be entitled to draw attention to the fact that each complaint is made in circumstances where another minor has made another complaint. I respectfully disagree with that because it seems to me that the whole logic of the corroboration warning is to warn a jury of a danger impending and if there is an impending danger that they would convict – and the warning is that they would convict wrongly, not that they would correctly convict, but that they would wrongly convict and if the court is asked by the defence, as is usually the case, to consider giving a warning, it’s hardly the function of the prosecution to do so, it is that there isn’t independent evidence tending to support the commission of a crime other than that spoken by the complainant witness…
… If it were to be done in such a way as to suggest that, well, there may not be independent corroborative testimony but you have other people saying the same thing… this case is not delivered to you on the basis of similar fact evidence [that] the evidence that an offence has been committed has to be believed because we have evidence of other offences having been committed by a person which tend to show a certain modus operandi, that’s not the case here”.
Counsel went on to say:
“I could understand the caveat your Lordship proposes to enter if it all happened on the one night or over the same weekend but … they’re separated in time. The only thing that draws them together is the location and the fact that they were minors or friends of [the appellant’s daughter].”
In the course of the discussion which followed this submission prosecuting counsel, Mr. O’Kelly S.C., said at pages 56 – 57 of the transcript for Day 4:
“Now, the only other matter is I want to make it absolutely clear that the prosecution case is that this is a similar fact case… we say there’s the clearest system here”.
Complaint about the prosecution’s opening speech.
The appellant complains, in the first instance, that counsel for the prosecution failed to make it clear in opening the case that he would be relying on system evidence.
The learned trial judge certainly was of the view that such evidence would be relied upon, and said at p.48 of the transcript for Day 4:
“… It was certainly my understanding from the commencement, that the reason the cases are being heard together is because the evidence does constitute evidence of system within the concept as is elaborated I think in a number of cases firstly by Mr. Justice Barron […].”
The defence complaint in this regard is that the prosecution should have sought leave to adduce the evidence of such system, or at least should have referred to it expressly in opening the case so that the defence would be on notice of it and:
“If such a course had been taken the defence would have had an opportunity before the jury to dislodge the suggestion that one complainant’s evidence was capable of corroborating the other owing to conclusion or contamination”.
In making this submission the defence rely upon a dictum of Lord Cross in the case of Harris v. D.P.P. [1952] AC 694 which was cited with approval by the Court of Criminal Appeal in D.P.P. v. B.K. [2000] 2 IR 199:
“When in a case of this sort the prosecution wishes to adduce similar fact evidence which the defence say is inadmissible the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other [complainants’] the charges relating to the different persons ought to be tried separately”.
In this case, of course, the defence were fully aware of the evidence to be relied on because it was set out in the Book of Evidence. No application to sever the Indictment appears on the transcript. Nor does any suggestion that the evidence of the witnesses was inadmissible. It might be argued that the evidence of each complainant was clearly admissible in relation to the count relating to her, but not in relation to the counts about the other complainants. But, whatever might be said about the opening of the case, the passage quoted above seems to us quite inconsistent with any view that the counts in relation to the several complainants were being tried, as it were, in watertight compartments. It is not appropriate, and would in any event be pointless, to address the jury on legal issues but it seems very clear that the defence were fully on notice that the prosecution case was that the evidence on each count was relevant to the other counts as well, and that the evidence showed that the type of assault in each case “was of a specific type”.
The difficulty from the defence point of view in relying on the dictum of Lord Cross is that in this case the defence did not “say” that the evidence was inadmissible before it was given. Nor did the defence apply to sever the indictment, which would have been the logical step to take if it was considered that the evidence of each of the girls was admissible only in relation to the count alleging assault on her.
The basis of admissibility.
It is important, and will shorten the subsequent discussion, to say that evidence of the kind in question here might be admissible on a number of grounds.
At para. 9 – 71 of Mr. McGrath’s book on Evidence it is said:
“It can be seen… that the probative force of multiple accusations is not dependent on any particular degree of similarity between the accusations. In circumstances where there are a large number of accusers, who have independently made allegations of a similar type of conduct against the accused, sufficient probative force might derive from the number of complainants alone without need for their allegations to be very similar in substance. As the number of accusers falls, so the level of similarity required to maintain the required level of probative force based on the unlikelihood of coincidence arises, until the point is reached in which there are only two accusers and the similarity must be very great indeed”.
Accordingly, it seems that evidence of multiple accusers may be admissible or “cross-admissible” on ordinary principles in order to show system or rebut accident. It may, if the accusations are accepted as being independent of each other, also have a corroborative effect. Such evidence may in certain cases exhibit both of those characteristics, quite separately. It is very important that the law of evidence should be realistic according to the ordinary instincts of mankind. This aspect is very well put by Budd J. in B. v. D.P.P. [1997] 3 IR 140 at p.157/8 where he said:
“It seems that the underlying principle is that the probative value of multiple accusations may depend in part on their similarity, but also on the unlikelihood that the same person would find himself falsely accused on various occasions by different and independent individuals. The making of multiple accusations is a coincidence in itself, which has to be taken into account in deciding admissibility”.
In our view, this statement of Mr. Justice Budd is sound law and sound commonsense, which we would disregard at our peril. The learned judge was not, of course, ignorant of the risks of collusion or contamination because he also said:
“Whether the accounts of each of several complainants are corroborative and also the risk of collusion, as or by conspiracy or where one witness has been unconsciously influence by another, may well be relevant factors at the trial”.
At a trial, of course, it is for the trial judge to determine, and instruct the jury, whether particular evidence is capable of being corroborative. It is then for the jury, having been so instructed, to decide, as a matter of fact, whether the evidence is actually corroborative in the circumstances of the particular case. This latter decision will naturally involve various factual issues including, in an appropriate case, the question of conspiracy or contamination.
Corroboration.
At para. 2.1 of his written submissions the appellant says:
“The net issue in this appeal concerns the type of corroboration warning given by the learned trial judge in his charge to the jury and, more particularly, his finding that the evidence of one complainant necessarily corroborated the evidence of the other two in each case”.
(Emphasis added)
I do not believe that the learned judge actually said that the evidence of each of the girls was necessarily corroborative of the evidence of the other two. On the contrary, in charging the jury on the fifth day of the trial he discussed the dangers of dealing with a case where the issue came down to one person’s word against another. He referred to the “trap, so to speak, of convicting a person where there isn’t corroboration”. He pointed out that “… corroboration is evidence which must be independent evidence of the person whose evidence is to be corroborated”. Very importantly, he told the jury:
“I decide whether as a matter of law evidence is allowed to be or capable of being corroborative”.
On the other hand:
“… What is or is not corroborative, whether evidence is corroborative or not, is a matter of fact and that’s a matter for you”.
On that basis the learned trial judge held that the evidence of each of the girls was capable of being corroborative of the other that he left it to the jury to say whether it was or not. Mr. Finlay, of course, both in cross-examination and in addressing the jury referred in an exhaustive manner to various features of the evidence which might make the jury doubt its accuracy or its corroborative effect, as he was entitled and indeed obliged to do.
Conclusion on conviction issues.
It appears, accordingly, that the evidence of each of the complainant was available to be considered as system evidence and also, to the extent of which it was accepted, as evidence corroborative of the other accounts. It would appear from the decision of this Court in
The People (D.P.P.) v. B.K. that the relevant evidence was not available as “similar fact evidence”: see the dicta of Barron J. at p.203 of the Report. Since confusion sometimes arises on this issue it may be helpful to set out the whole of Mr. Justice Barron’s remarks:
“While there may be cases where the trial judge may be able to charge a jury so that an accused is not unfairly prejudiced where evidence admissible on one count is inadmissible on another, in most cases the real test whether several counts should be heard together is whether the evidence in respect of each of several counts to be heard together, would be admissible on each of the other counts.
For such evidence to be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. In practice, this test is applied where there is a similarity between the facts relating to the several counts. On the one hand, there is system evidence which is so admissible; and, on the other hand, there is similar fact evidence, which is inadmissible. In the latter case, the reason is that, just because a person may have acted in a particular way on one occasion does not mean that such person acted in the same way on some other occasion. System evidence on the other hand is admissible because the manner in which a particular act has been done on one occasion suggests that it was also done on another occasion by the same person and with the same intent.
There is a clear line of division between these two types of evidence even though it may be difficult in an individual case to say which side of the line the particular case falls. While the court uses the expressions ‘system evidence’ and ‘similar fact evidence’ to distinguish the two types of evidence, in some of the authorities to which we refer the words ‘similar facts’ are used to describe what we refer to as ‘system’. This in itself does not affect the reality of the distinction.
The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of allegation is overborne by the probative effect of the evidence.
In Attorney General v. Duffy [1931] I.R. 144, the accused was charged with four separate counts of indecent assault and gross indecency against four different male persons on four different occasions. All the counts were heard together. It was held that the convictions could not stand and that a retrial would be ordered. The basis of the decision was that to try the four offences together was in effect to supply corroboration for each of them when in law there was no such corroboration. As Kennedy C.J. put it at p.149:
‘Human nature, however, is too strong to have allowed the jury to disregard the cumulative effect of evidence given at the same trial in respect of four distinct offences of almost precisely the same character’.
The need for corroboration is no longer necessary in such cases, but the sentiment expressed is still the basis for excluding similar fact evidence. A similar sentiment was expressed by Goddard C.J. in Rex v. Sims [1946] 1 K.B. 531.”
It is true that prosecuting counsel in the present case appeared, in a passage quoted above, somewhat to confuse the separate concepts of system evidence and of similar fact evidence but this was in the absence of the jury. The evidence was also available as corroborative evidence on the basis explained by the learned trial judge after all of the relevant authorities had been opened to him.
In those circumstances, the Court will decline to quash the convictions.
DPP v CC (No.2) [2012] IECCA 86
Judgment of the Court delivered on the 6th day of December 2012 by O’Donnell J.
1 This appeal illustrates in quite a stark way the difficulties posed for the administration of justice by the trial of offences, often indecent assault and other serious crimes, alleged to have occurred a considerable period before and when the complainants were young children. Such cases are often referred to as childhood sex abuse cases, but that description covers a wide range of fact situations. The revelation of widespread sexual abuse of children, particularly by persons in authority including members of religious orders, has been a feature of Irish life for the past quarter century approximately but has still retained its capacity to shock. The interests of justice towards the victims of sexual abuse, and the public interest more generally, demands that such matters be sensitively investigated, if appropriate be the subject of a criminal trial, and where guilt is established to the standard required by the criminal law, that the perpetrator be punished. But justice also demands that no person be convicted of a criminal offence other than where their guilt of the specific offence charged is established beyond any reasonable doubt, and after a trial in which only admissible evidence is received and where the procedures adopted both in investigation and at trial, have been fair. This is rightly a rigorous and demanding standard, and all the more so when cases are tried after a significant lapse of time with inevitable loss of witnesses, impairment of memory, and sometimes loss of more tangible evidence. The clash of these competing demands has often resulted in protracted and difficult proceedings which have rarely been entirely satisfactory for any of the participants involved.
2 Here the appellant is a former religious brother who taught in a national school in the west of Ireland in the 1960s and 1970s. Long after the period with which this appeal is concerned (and in circumstances apparently unconnected with any of the matters now alleged) he left religious life, got married and established a family. In 1999 he became the subject of an active Garda investigation resulting in prosecution. The trial the subject of this appeal commenced in February 2010. The appellant originally faced 70 counts of indecent assault contrary to common law. As a result of developments at the commencement of the trial the Director of Public Prosecutions agreed not to proceed with counts 56-70 in relation to one complainant (GW). At the close of the prosecution case the trial judge directed withdrawal of a further 20 counts namely counts 1 (being one of the charges concerning a complainant MH), counts 15-28 inclusive (being all of the charges concerning complainant RM), and counts 31-35 (concerning complainant PH). Consequently 35 counts of indecent assault (concerning four complainants; MH, PH, JK and DF) went to the jury which returned a verdict of guilty on all counts. The appellant was sentenced by the learned trial judge to 12 months imprisonment on counts 2, 29, 38, and 58, this being one count in relation to each individual complainant. The other counts were also taken into account. For reasons which will shortly be discussed, the appellant had already served ten months imprisonment on these charges and accordingly, as a result of his conviction and sentence, he was not required to serve any further time in custody. The appellant now appeals against his conviction on the 35 counts. The Director of Public Prosecutions has also appealed the sentence contending that it was unduly lenient. The appeal which is the subject matter of this judgment was confined to the appeal against conviction.
3 This was not the first time the appellant had been in court in respect of these matters. When originally charged, he had unsuccessfully sought to have his trial prohibited on the grounds of the passage of time since the events of which complaint had been made. In 2005 he was tried and convicted on 180 counts of indecent assault in respect of his time as a teacher, which appear to have included the charges and complaints now the subject matter of these proceedings. He was sentenced to eight years imprisonment. While detained in prison he was the subject of a serious assault. In February 2006 the Court of Criminal Appeal quashed his conviction on the ground that the direction given in relation to the manner in which the jury should approach the question of the lapse of time since the events was inadequate. Thereafter two further trials commenced both of which had to be aborted, first because of an inadvertent reference in the evidence to the first trial and conviction, and the second because of a desire to avoid any possible perception of conflict of interest on the part of one of the lawyers involved. Accordingly when this trial commenced on the 15th of February 2010 it was the fourth time that the accused had been arraigned on these charges and, it should be said, the fourth time that the complainants and other witnesses had been obliged to come to court. It is necessary to say that the conduct of this difficult trial by the judge, and the parties involved including counsel for both sides, was admirable. In particular the trial judge clearly sought to conduct this trial in a fashion which was conspicuously fair, and which was business like and efficient in the running of the trial yet sensitive to all the interests involved.
4 The trial commenced with an opening statement from prosecuting counsel. It was set out that it was not in dispute that the appellant, while still a religious brother, had been a teacher in the school in the 1960s and 1970s. The allegations concerned two classes which he taught. The first time period was between 1968 and 1972, when the first three complainants (MH, RM and PH) were pupils in a class taught by the accused. The second class was one which he taught between 1973 and 1978 in which the fourth and fifth complainants (JK and DF) had been pupils. Both classes had consisted of between 65 and 70 boys of varying ages. It is not in dispute, and not perhaps surprising, that the atmosphere in the class was tough, and it appears to be accepted that the appellant repeatedly used corporal punishment, which although lawful at that time, undoubtedly contributed to the complainants’ unhappy memories of the classroom.
5 The structure of the indictment was to allege one act of indecent assault for each school term in respect of all the complainants, other than the case of the complainant DF where only one act of indecent assault was charged. At the outset of the trial there was some skirmishing and an intimation given that an application might be made on the part of the defence to seek a separate trial in respect of the charges relating to each complainant. Counsel for the accused also raised concerns about his side’s capacity to deal with the disclosure which had been provided, particularly in relation to a sixth complainant (GW) who was the subject matter of counts 56-70 on the indictment. In the course of debate before the court, counsel for the prosecution offered to outline what the “system evidence” was, presumably for the purposes of explaining why the counts were being tried together. The judge observed however that there had been no application, and that this was in some sense to put the cart in front of the horse. In the event, there was no application for a separate trial (an application which had little prospect of success) but counsel for the accused did ask, “Is my friend saying that one count in someway becomes evidence in relation to another count. The law in this is far from clear and I, before embarking on this trial, from the defence point of view, would like to know what my friend says is the law in relation to this and what the attitude of the prosecution is”. The judge asked if counsel for the prosecution felt “compelled to reply” and perhaps seeing the way the argument was progressing, counsel for the prosecution said that the court was correct and that it was for counsel for the accused to say why the matter should be tried separately. There being no further application, that was the end of the forensic shadow boxing on this issue and counsel for the prosecution opened the case to the jury.
6 During the opening of the case to the jury, counsel for the prosecution went to some lengths to give an explicit warning “that it is dangerous to convict in a case of this nature because of the difficulties that are faced by a defendant.” It is also fair to say that she expanded on these difficulties at some length. She then explained the substance of what remained in the case as follows:
“The first three witnesses were in one class and that class was taught by [the accused], from approximately 1968 to 1972. The last two witnesses were taught by [him] from approximately 1972 to 1977. Very broadly the allegations will be from each of the five – complainants I think is the best word to use in describing these first five witnesses – very broadly the allegations that each of them was brought to or asked to come up to their teacher’s desk and this, in each case, their teacher being [the appellant] who was then teaching.
The allegations will include allegations of having put the boy on his knee, [the appellant] then touched and rubbed the boy’s bottom. In at least one case he also touched the boy’s penis. In at least one other case he fingered the boy’s bottom underneath his trousers and fingered the anal area. In each case or certainly in a majority of cases there was face to face conduct and skin to skin conduct. In a number of cases the boys – they are now men in their forties – will describe to you that they were asked to kiss their teacher. You will hear some evidence in relation to the general way in which the class was run but also you’ll bear in mind this is, again, all of these offences and allegations predate 1977 at a time when corporal punishment was not unlawful and you will hear that corporal punishment was used in the classroom by [the appellant] as he then was.”
7 Counsel for the prosecution made reference to what she said the courts have called “system evidence”. She referred to this as the “same modus operandi, the same system in which the boys are asked to come up to the teacher’s desk, being put on the teacher’s knee and that all the offences were alleged to have occurred in the classroom at the teacher’s desk”. She referred to a decision of this court in DPP v. B.K. [2000] 2 I.R.199 and quoted from the judgment delivered by Barron J. at p.200 that system evidence is admissible because of “the inherent improbability of several persons making up exactly similar stories, or by showing a practice which would rebut accident, innocent explanation or denial.” It was clear from this that the prosecution was addressing the question posed by counsel for the defence at the outset of the trial, and was contending that evidence on one count was indeed admissible as evidence in relation to another. Counsel for the prosecution also pointed out that there was further evidence which might be considered direct supporting evidence where some of the complainants gave evidence that they had witnessed similar acts in respect of other complainants.
The Evidence of the Complainants
8 The first complainant, MH, gave evidence. At the time of giving evidence he was 50 years of age. He said he began in the school in 1968. He agreed that there were probably over 60 boys in the class. If he was slapped with the cane, he would cry sometimes and in that case he would be brought up to the teacher’s (the appellant’s) desk. He was asked what would happen then. His answer was as follows:
“When he would hold you beside him here and he would start to rub your leg from below the knee. If you were wearing short trousers up around your backside, in underneath your trousers or on the outside of your trousers if you were wearing long trousers.”
Later he said:
“He’d pull you in and rub his face up and down the side of your face like this….
… I always remember the stubble and the smell. It could be alcohol generally. And a smell coming from his feet. I can remember that distinctly. He would often rub you closer, faster and he’d rub your leg faster and he’d often be in a sweat …”
Asked how often this could occur he said:
“Well it depended. It could be weekly you know? I saw it happening to boys on a daily basis. Two lads in particular PH and RM. It was every day because sometimes I was in the front seat and I could see clearly in front of me.”
In cross-examination MH acknowledged that the appellant had on occasions brought him away on overnight school trips for periods of five days and two to three weeks and that nothing improper had occurred on these occasions. He acknowledged that he was a serious alcoholic but had recovered. In relation to the school, he said that it was an old national school which had very large windows which, in his memory, were high up.
9 This account, albeit short and general, set the tone for the evidence of the other complainants. A second complainant, RM, said that he was in the class between 1968 and 1972 and that it was a big class with lots of children in a tough environment. He said he had been brought up to the front of the class on a regular basis by the appellant who would put his arm around him rub his face against the complainant’s. This made him feel extremely uncomfortable and at times he would cry, and on many occasions he would try to pull away. RM further recalled a time when he contracted ringworm of the eye, which led to him being sent home for a few weeks. When he came back to school, he recalled that the appellant had ringworm of the face. In cross-examination he acknowledged that he had seen a counselling psychiatrist and had said he did not remember any sexual abuse and could not remember being sexually abused. In re-examination he said he understood sexual abuse to be contact with his private parts and that sort of thing.
10 A third complainant, PH, was also in the class from 1968 to 1972. He gave evidence of being called up to the front of the class “and there were times when he would fondle with my body play with my body … play with my penis play with my back passage.” He said that the appellant would rub his face against his face. He also recalled the appellant wearing a cloak which he would put around the complainant and then put his hands inside his clothes, his trousers and shorts and fondle his private parts. When asked how often this could occur he said initially it was not too frequent, maybe once a month or every three weeks but there were times when it was two to three times a week and at times a couple of times a day. There was no set pattern. In cross-examination he acknowledged that he had not made any complaint prior to 1999 when first approached by the gardaí. He said that he had blanked the matters from his mind and had had no memory of them whatsoever. He agreed that when initially approached by the gardaí he said he could not help them. He agreed that he had told a psychologist that he had “no memory of being abused until about three years ago when gardaí first approached him in 1999 and talked to him about life in school with [the appellant].” He explained:
“When questions were asked at the time and I gave my statement, questions were asked about life in school and what the day to day occurrences were like, what did I do my daily routine and the like, when those questions were asked to me that’s when I thought about what happened. I had not thought about my time in school.”
He denied having been shown statements by other boys and said that a statement to that effect attributed to him in another psychologist’s report was inaccurate. He also said that even still, there was a period from mid 1970 until the end of 1971 when he was in fifth class which he did not recall. He accepted that it was being asked by the gardaí which prompted him to recall these matters saying, “I may have told them it was my first time to remember it yes, but I also told them it was the first time that anybody asked me questions about that time.” He also suggested that the appellant had on more than one occasion put his cloak “on the two of us and start to fondle my back passage”. He remembered a belt which he believed was a leather belt, not a rope belt, which he said the appellant took off and put around both of them.
11 The fourth complainant, JK, had been in class from 1972 to 1977. He had a memory of being brought up to the appellant’s desk on occasion if he was struggling with reading or something like that. Then the appellant “would either put you sitting on his knee or stand on one side of him or stand in between his legs and he would put his arm around you around your waist and he would put his hand inside your trousers and touch your private parts”. He said that this happened over the period he was there and maybe twice a week for a period of maybe two to three years, but after that it may have happened once a month. He recalled one instance when the appellant was pulling the zip of his trousers up and down and feeling the appellant’s knuckles touching him before his hand slipped inside his trousers to touch his penis. He accepted that on the first occasion the gardaí contacted him he said he could not remember. He explained this by saying that after the gardaí had contacted him he had spoken to his wife and told her what it was about. This was, he said, because he had never spoken about these events to her or his children throughout his life. In cross-examination he accepted that he had initially made a formal statement saying “I want to say I was not abused by any teacher or [the appellant] while in [ ] school and I don’t wish to make a complaint to the gardaí.”
12 The fifth complainant, DF, was also in the class between 1972 and 1977. There was only one count on the indictment relating to DF alleging a single act of indecent assault. His evidence was that in third, fourth, fifth and sixth class, physical and sexual abuse took place. He said he was often brought up to the desk and on one occasion he was asked to give the appellant a kiss using the Irish vernacular “tóg pógín dom” and on another occasion he said “he kind of wrapped himself around me, perhaps I was standing and he put his arm around my face and put his hand down my trousers and felt my penis.” In cross-examination he stated that “I can recollect at least on one occasion he put his hand down my trousers.”
13 At this point in the trial there was an application in relation to some further evidence that was to be given by reference to the complainant DF. A witness had proffered a statement included in the book of evidence to the effect that on one occasion while DF was sitting on the appellant’s knee he, the witness, saw the appellant put his hand up DF’s shorts and fondle his genitals. It is of some significance that the trial judge excluded this evidence because there was significant difference between its detail and the description of the incident given by DF. The trial judge observed that the count which the accused faced in relation to the DF was that “on a school day unknown between July 1972 and June 1977” he had sexually assaulted DF. The judge observed, correctly, that one could not imagine a more imprecise account covering the entire time that DF was a pupil in the school. He refused to permit this evidence to be given, but did permit the testimony of another witness where the disparity between his evidence and that of DF did not appear so clear cut. In the event that witness, CD, gave evidence. He was asked did he ever see [the appellant] touch DF? He answered that he had. He was then asked to describe exactly what he saw and replied “well he used to bring them up, put them sitting on his knee and feel their privates.” This was all the direct evidence concerning the indecent assault charges. Thereafter, a witness was called to confirm that the relevant witnesses had been enrolled in the school at the relevant times, that the class size had been between 62 and 69 and that there were large windows looking out on to the yard which were quite close to the ground, and anyone in the yard could see into the classroom. Three other pupils gave evidence generally to say that they saw boys being brought to the teacher’s desk and in particular RM and PH. A cautioned statement from the appellant was also introduced into evidence which accepted that he had a practice of bringing boys up to his desk and that he had used corporal punishment, but denying any sexual assault.
Application for Withdrawal of the Case from the Jury
14 At the close of the prosecution case the trial judge dealt with the defendant’s application that the case should be withdrawn from the jury. The judge directed that claim number 1 in relation to the complainant MH be withdrawn due to a lack of sufficient evidence that he had been at the school during the particular time charged in that count. In relation to the complainant RM, while accepting that as a matter of law it was a matter for the jury to decide whether any particular assault was indecent, he nevertheless directed the withdrawal of all charges in relation to that complainant because “given the age of the case and the necessary caution to be attached to the conclusion of it, coupled with the view that the jury would be asked to speculate about what actually happened, all counts in relation to this complainant will be withdrawn from the jury”. In relation the complainant PH, he observed that in giving evidence he had admitted that he had a blank memory in relation to the period between mid 1970 and 1971. Accordingly he directed the withdrawal of charges 31-35 which he considered covered that period. The rest of the charges could proceed. By that process the case was reduced to 35 counts of indecent assault in respect of four separate complainants. The appellant did not go into evidence.
Charge to the Jury
15 The trial judge decided that given the nature of the case, being an allegation of sexual matters, it was appropriate to give a corroboration warning to the jury. He told the jury that the law asks for care and caution where there is no independent supporting evidence. He then told the jury that the evidence of each of the complainants was capable of acting as corroborative support for the complaints of the other complainants (Day 5, p.47, line 10). He also addressed what might be described as direct corroboration. He pointed out that the evidence of MH was capable of corroborating the evidence of PH because he (MH) had said that he saw the same thing which had been done to him, done to PH (and RM, although by that time the charges in relation to him had been withdrawn). In relation to the evidence of CD (who was not himself a complainant) of having seen DF’s penis being interfered with by the appellant, the trial judge pointed out the potential discrepancies between his account of DF sitting on the appellant’s knee and that of DF himself who said he was perhaps standing beside the appellant. He observed that it had been suggested that this could be talking about two separate incidents. If so that was a matter for the jury. If however they considered it was two separate incidents, it was not supportive evidence. The judge pointed out that the evidence of the other pupils to the effect that boys were brought up to the desk, was not itself capable of being corroboration but it was relevant in that it could be considered in the overall context of assessing the credit of the other complainants and the other witnesses. He pointed out there was no witness giving corroborative evidence in respect of the evidence of MH or JK. The trial judge also warned the jury in relation to the dangers of convicting in a case of this age and where the lapse of time was so significant between the events complained of in the trial.
16 It must be observed that the trial judge in directing withdrawal of the counts as he did, and deciding to give a corroboration warning, and in the lengths he went to in giving the warning about the age of the case, acted with scrupulous care and fairness towards the accused. Nevertheless, it is contended on this appeal that in certain specific respects, the charge to the jury was inadequate. Before considering the specific complaints made it is perhaps appropriate to make some observations on the nature of the case as it stood.
17 In this case the evidence on behalf of the prosecution was very limited. It was devoid of any surrounding detail apart from the identification of the school and the accused by name. There was no detail as to the timing of any the events of indecent assault by reference to any particular year, a period in the year, or by reference to any other memorable event whether public or private. The evidence was generalised, and almost generic, and mixed conclusions (“I felt I was being psychologically manipulated at that time, psychologically abused”), with direct evidence (“he put his hand down into my trousers and felt my penis”). This may be unavoidable in prosecutions of sexual offences, particularly those alleged to have occurred a long time before when the victims were very young. It is now recognised that complainants of sexual abuse in childhood, particularly where they were subjected to abuse on a continual basis, will often not be able to recall any detail, and may simply be able to give evidence of the first incident and then say little more than that the same thing happened regularly thereafter. The Supreme Court recognised in DPP v. Mc Neill [2011] 4 J.I.C. 0801 that this could have an impact both on the way such offences are charged and the way evidence is adduced, but it does not make the task of adjudication any easier. This appears perhaps most clearly in the charge in relation to the complaint made by DF. The indictment charged a single incident of indecent assault alleged to have occurred “on a school day between 1972 and 1977,” a period of four years and eleven months. The limitation of the day of the alleged offence to a school day does not bring much definition to this charge since it is after all an allegation of indecent assault by a teacher on a school boy in a school room while attending school. At least in those cases where it is alleged that a person was indecently assaulted or abused on a weekly or monthly basis the number of offences alleged can increase the chance of testing the evidence by, for example, proving the absence of either the accused or the complainant for a significant time during the period. But an allegation of a single incident alleged to have occurred on a day otherwise unspecified within a five year period poses exceptional difficulties. The direct evidence which supported the charge was limited:
A. “In third, fourth, fifth and sixth class physical abuse and sexual abuse took place.
Q. Is there any particular occasion of sexual abuse, you’ve used that term, that you can remember and tell to the court and to the jury?
A. I was often brought to the desk and another incident sticks in my mind is one time he asked to give him a kiss, I think he used the Irish vernacular “tóg pógín dom”. Another occasion he kind of wrapped himself around me, perhaps I was standing and he put his arms around my waist and he put his hand down into my trousers and felt my penis.
Q. Thank you Mr F, if you’d answer any questions?”
It will be recalled that the judge had decided that a corroboration warning should be given to the jury. The following evidence was admitted on the grounds that it was capable of corroborating the evidence given by Mr F:
“Q. Did you ever see Mr. C or Brother C. as he then was, did you ever see him touch DF?
A. I did yes.
Q. Could you describe exactly what you saw to the jury please?
A. Well he used to bring them up put them sitting on his knee and feeling their privates.
Q. And when you “privates” in relation to Mr F, can you just be specific as to what you mean?
A. Penis.
Q. I see if you’d answer any questions? Thank you” (Emphases added)
18 Although the theory upon which the indictment was laid was that there was a single identifiable incident of indecent assault against DF, the prosecution did not attempt to explore this matter in any further detail whether in the evidence of the complainant DF, or the witness CD, notwithstanding the apparent differences between the two sparse accounts. That however did not mean that the evidence was not powerful. To some extent the assertion of indecent assault was all the more stark because it was set against a background that was almost entirely blank. It calls to mind a minimalist stage setting when the landscape although somewhat familiar is not recognisable either as to place or time. But that only illustrates part of the difficulty here: such stage settings are intended to convey the sense that some generalised or universal statement is being made or is to be understood. The trial of a specific criminal offence involves the opposite. A specific and particular event is alleged to have occurred, perpetrated by a specific individual on another, and the trial is to determine, beyond reasonable doubt, whether that event occurred. Such minimal evidence reduces the trial as has regularly been observed, to little more than a charge countered by a denial, contained in this case in the statement of the accused, and necessarily involved the jury in an attempt to determine whether or not they believed each complainant beyond any reasonable doubt. This necessarily places heavy reliance on the perception of the jury in relation to the demeanour of the witness. But as Lord Atkin famously pointed out in Société d’avances Commerciales (Société Anonyme Egyptienne) v. Merchants’ Marine Insurance Co. [1924] 20 Lloyd’s L. Rep. 140 at p.152 “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”. That is an observation borne of lengthy experience, and with which many judges have agreed. It is significant that those with the greatest experience of judging the credibility of witnesses have the least faith in the capacity of any person to simply observe the witness giving evidence and determine if he or she is telling the truth. However, almost by definition, that is an experience which a jury does not have. That is partly why it has been considered necessary to give the jury an explicit warning as to the dangers of conviction of persons where there has been a significant lapse of time, blurring of memory, and evaporation and loss of evidence. It is an added complicating feature that the stark singling out of an allegation of a criminal offence without the clutter of context and surrounding provable and therefore contestable facts, may make a false allegation appear more convincing to a jury and a true allegation less convincing than such evidence given closer to the time, and in a more fact rich context. The warning which must be given to a jury is designed to provide a jury encountering evidence of any sort for the first time with the accumulated experience of trial courts to the effect that it is normally by the testing of evidence against observable provable facts that credibility is more persuasively established, and that the stark and isolated evidence of the assertion of a criminal offence on a day without specification, definition or description, rather than providing clarity and persuasiveness, is something to be approached with considerable caution.
19 One further important consequence of this process must be that the significance of everything done or said in court is magnified against such stark and spartan background, and in particular complaints about the conduct of the trial may loom much larger than in a case in which there is considerable factual evidence for the jury to assess. This undoubtedly imposes a heavy and demanding burden on the trial court.
20 On behalf of the appellant a number of specific complaints are made. In the written submissions the appellant grouped certain grounds together, and accordingly it is proposed to follow that sequence.
Grounds 1 and 2: Recovered Memory
21 On these grounds the appellant contended that the judge erred in law in failing to withdraw the counts relating to complainant PH on the grounds that he admitted that he had no memory of the alleged offence for a period of approximately 25 years and that his memories were the result of a phenomenon of recovered memory where no evidence was called by the prosecution to explain this phenomenon. Ground 2 contended alternatively that the failure to warn the jury of the dangers of evidence of recovered memory and giving to the jury the judge’s own opinion to the effect that this phenomenon could be compared with the recovery of information on the hard drive of a computer without any such expert evidence, was an error.
22 It will be recalled that the complainant PH acknowledged that he had blanked the matters of which he had given evidence out of his memory and that he had only recalled them when approached by the gardaí, and that there was still a period which he did not recall. No mention was made of memory being recovered after therapeutic intervention. However counsel for the accused introduced the concept of recovered memory in the application to have the case withdrawn from the jury. It was stated that:
“He admits that the memory he has is a recovered memory. Now the jury are not psychiatrists or psychologists and even if they were, it think it is within public knowledge and judicial knowledge that there is a split camp within the psychological and psychiatric community in relation to the validity of recovered memory, repressed memory and the vague borderlines between all of these. If this matter was allowed to go to the jury … they would have to consider the question of recovered memory and its psychiatric background and the expert knowledge in relation to that, that evidence has not been called here.”
This was vigorously contested by counsel for the prosecution. As already set out, the trial judge directed the withdrawal of counts 31 to 35 on the grounds that the complainant still admitted that he had no memory of the period between 1970 and 1971 but otherwise he refused to withdraw the counts from the jury.
23 Although the appellant challenges this decision, the court is satisfied that the trial judge was quite entitled to take the course he did. In truth, the whole concept of recovered memory introduced by the defence was something of a misnomer and potentially misleading. This was not the type case which gave rise to the dispute in the expert professions, to which counsel for the defendant had referred in his application. It has not been suggested that the complainant had undergone any process of therapy, as a result of which he had believed he had recovered a memory which had been lost. Instead he was merely saying that he had put these matters out of his mind and had only remembered them when asked about them by the gardaí. That is not a concept that required expert evidence, or indeed was something upon which there was any expert debate in the field of psychiatry. It was a matter well within the province of the jury to consider and assess.
24 This Court is satisfied therefore that neither expert evidence nor judicial direction was necessary on the evidence as it stood. However the matter went further, and in his charge to the jury the judge referred to the evidence given by PH and in doing so, unfortunately in the view of this court, adopted the characterisation of counsel for the accused. Thus he said:
“This phenomenon of recovered memory, which I understand, says, is that something has gone out of your mind completely, but with the help of professionals is recovered, almost like the hard disk of a computer; you get the expert who knows how to go in and find it buried within the mechanisms and restore it to good use, to current use.”
The reference to “recovered memory” is itself perhaps unobjectionable since if it meant anything to a jury, it may have called to mind an awareness of a somewhat controversial topic about which doubts had been expressed. That could only have been of assistance to the accused. However, when the judge went further and gave an explanation of the phenomenon and drew an analogy with a professional recovering an item from the hard disk of the computer, this may well have suggested to the jury that this case involved the finding and restoration of genuine memories. The accuracy and credibility of the memories of the witnesses, and particularly PH and GK, who had in different ways acknowledged having no memory of the matters over a period of 25 years until approached, was a central issue in the case. To the extent that the jury paid attention to this passage in the judge’s charge, it can only have suggested to the jury that those memories were intact, genuine and reliable. In another context this reference may not have been of major importance, but in the context of this case, where there was so little evidence of detail and memory was central to the case, it was in this court’s view, a significant error.
Ground 12: Evidence of JK
25 A related ground was that “the learned trial judge erred in law and in fact and trespassed into the domain of the jury by instructing them that in his opinion the complainant, JK, was an honest witness and that his apparent change of mind in making a complaint was a “feature of the honesty of the man”.
26 It will be recalled that this complainant had made a formal statement to the gardaí denying that he had been abused by the accused. Later he made a second statement containing the evidence he gave to the court. In his evidence the complainant sought to explain the inconsistent statements by saying that he had not until then spoken to his wife and child about these matters, and he wanted to tell them before he began to open up to others. There was therefore a live issue in the trial as to the extent to which the jury could rely on JK’s evidence. In his charge to the jury the trial judge recounted the complainant’s explanation and asked whether it was a fair and reasonable one. He made the point that the complainant had not said to the gardaí “at last someone is catching up, I have someone to talk to, but please, let’s leave matters stand until I go home. I have my wife and child to think about first.” The trial judge then continued “his answer was nothing wrong happened. Does that cause you concern? It is a feature, I believe, of the honesty of the man that this is what he said occurred.” It is only fair to say that the judge continued “bearing it in mind, particularly bearing in mind the sworn testimony in court, are you convinced? Are you satisfied that what he says did occur? If you are, it is open to you to convict. Short of being so satisfied, you must acquit the accused.” Nevertheless, the sentence “It is a feature, I believe, of the honesty of the man that this is what he says occurred” is troubling. The inconsistency of the statements, which raised a possible question as to the credibility of the witness is treated as a demonstration of credibility, of his “honesty”. Furthermore, it is formulated in a way which appears to suggest that the judge himself believes the witness to be honest. The appellant relied upon DPP v. Morrissey [1998] 7 J.I.C. 1001 where this court quashed a conviction in which a trial judge complimented a witness whose evidence had been challenged in a way which this court considered clearly gave to that evidence the seal of approval.
27 It is true that the challenged sentence is but one sentence in a lengthy charge, and is followed by an impeccable statement of the jury’s duty to acquit if not satisfied that what the witness described to have occurred had indeed occurred as he said. But every challenge to the judge’s charge must be analysed in the context of the case as a whole. In other cases it may be that the impact of a statement such as this may not be considered significant. But here, the evidence is so limited, and stark and bereft of other contexts which can be assessed that the credibility of witnesses and issues giving rise to any legitimate question as to credibility, loom large. Any statement by the judge, capable of being understood as expressing not just a view, but a conclusion on the honesty of a key witness, cannot be readily disregarded.
Ground 3
28
“The learned trial judge erred in law and in fact by taking into account as a factor in refusing to grant acquittal by direction the fact that the Superior Courts had not granted an injunction by way of judicial review pending the trial, and the fact that the Court of Criminal Appeal have ordered a retrial, having quashed his first conviction on these offences.”
In the course of his ruling on the defence application for direction, the trial judge reasoned as follows:
“The Superior Courts, through an earlier appeal and hearing and judicial review proceedings have had the full history and facts of the general case here and has on two occasions at least, or at the trial to be heard or reheard. This is a consideration not binding on a trial judge but is a matter which should and does have a bearing. Nothing in the course of this trial has emerged that is radically different, in detail or event, from either the judicial review proceedings or the first appeal trial to warrant a departure per se from the fact of a fresh trial.”
It is argued, and with some merit, that at least in respect of the judicial review proceedings, this is a dubious form of reasoning. The Superior Courts’ approach to judicial review is increasingly that questions of the fairness of the trial are best gauged in the context of the trial. Thus as Denham J. (as she then was) said in DPP v. P. O’C. [2006] 3 IR 238, at pp.247-248:
“…whether an application for judicial review is made or not, the trial court retains at all time its inherent and constitutional duty to ensure that there is due process and a fair trial. Thus, in the course of a trial matters may arise, evidence may be given, which renders a trial unfair, or the process unfair. In these circumstances the trial judge retains the jurisdiction of preventing the trial from proceeding. This jurisdiction is exercised in the course of a trial but does not enable, or relate to, a preliminary hearing at the commencement of a trial on the issue of delay.”
It follows that if the Superior Courts have refused judicial review in part because there remains a jurisdiction to prevent a trial from proceeding on grounds of unfairness, that it is potentially illogical for a trial judge when considering an application to withdraw the case from the jury, to take into account the fact that the Superior Courts have refused judicial review. But that is an objection at the level of theory that can only be successful if it led to a decision which ought not to have been made. In this case the question is whether the trial judge was right to refuse the application for a direction, however he expressed himself, and subject to one specific issue, this court is satisfied that he was correct to do so. If so, the fact that he placed some reliance on the approach of the Court of Criminal Appeal and perhaps more dubiously, the High Court, on the subject of judicial review, is not significant.
Grounds 4 and 6: Delay and Lapse of Time
These grounds can be dealt with together.
Ground 4:
29 The learned trial judge erred in law and in fact and failed to withdraw a count from the jury in respect of all complainants in view of the prejudice caused to the defence as a result of the delay in bringing the case to trial and in particular, the inability of prosecution to produce details of the room and desk at which the offences are alleged to have occurred, the dimensions of which were relevant to issues in the case.
Ground 6:
30 The learned trial judge erred in law and in fact in failing to direct the jury properly, or at all, in relation to general or specific aspects of prejudice arising from the delay in the investigation of this case. In particular he erred in respect of the significance of the desk and failed to explain to the jury in particular that unavailability was an example of the prejudice of the applicant arising from the lapse of time in the prosecution of the alleged offence.
31 The first conviction of this accused had been overturned by the Court of Criminal Appeal on the ground that the trial judge failed to charge the jury adequately in respect of the impact of delay. In that case, Kearns J. (as he then was) observed:
“It seems to us that whatever prejudice arises by virtue today in a case of a single complainant can only be seen as exponentially magnified when there are multiple complainants and a single accused.”
While lapse of time is always likely to be a major factor in any case of this antiquity, it was clearly central to this trial.
The trial judge here said the following in respect of lapse of time:
“This case and these charges, these accusations, are very old in age. Be very sure of that, be very certain of that. It is an unusual feature. Cases of this antiquity so not often come before the courts, and where they do, from experience in what we know, juries must be advised and must act with extreme caution and care. Now why is that? It is because as time moves, detail evaporated, and cases in effect deteriorate in to the situation in which the Director accuses you of doing something wrong and what’s left remaining is for a defendant to say “no I didn’t”.”
He dealt at length with the features which would be available to another person to defend themselves against an accusation against wrongdoing in the recent past and concluded:
“Now that is why because of the elapse of time, the evaporation of detail and the deterioration of the trial, evidence to an assertion of the “yes you did”; “no I didn’t” situation that we ask jurors and juries considering these types of cases to exercise extreme care before arriving at a decision of guilt. [Counsel for the prosecution] has used the expression that it would be dangerous to convict without such care and caution being taken and I echo those sentiments.”
No complaint has or could be made about this aspect of the charge. The appellant points out however, that on day 6 the trial judge did observe “it is perhaps a bit surprising that the prosecution didn’t produce a photograph or a ground plan of the school because my understanding is the building is still there.” But otherwise it is said the judge did not identify other specific areas where evidence had not been produced which might have assisted the jury such as the type of uniform worn by a Brother in the order of which the accused was a member (and in particular whether it had a leather or rope belt), the nature of the desk at which the accused sat, and the layout of the room. It was pointed out on behalf of the accused that the obligation of a judge in any particular case is to give a direction which should be custom built to make the jury understand their task in relation to the particular case. This is correct. However, it appears to this court that the submissions on behalf of the appellant confuse two different issues: the impact of delay in terms of loss of available evidence, and what was alleged to be prosecutorial default in failing to produce evidence which was potentially still available such as a floor plan of the school. It is true that in this case perhaps the most extensive warning that was given to the jury about the dangers created by cases of this antiquity was that referred to by counsel for the prosecution in opening the case, and again in her address to the jury. There were perhaps good forensic reasons for doing this, but it was in any event very fair. Taking the trial judge’s warnings then in the context in which they were delivered, and in particular the endorsement of the examples given by counsel for the prosecution, it does not appear to this court that this issue amounts to a defect in the trial.
Ground 5
32 The trial judge erred in law and in fact in inappropriately instructing the jury when referring to the fact that the applicant had not given evidence that there was no onus on the applicant to participate in the process.
The appellant accepted that the trial judge correctly told the jury there was no obligation on the accused to give evidence and that they should not draw any adverse conclusion from the fact. However, it is suggested that in doing so the trial judge characterised the applicant’s decision not to give evidence as a failure to participate in the process. It is argued that this was an unfortunate formula to adopt. Even if this is so, when looked at in the broader context, it does not appear to this court that the jury could have formed any adverse impression of the accused from the language used by the trial judge. On the contrary, he emphasised that the accused was not obliged to give evidence, did not comment on that in any way, and repeatedly emphasised to the jury that they could only convict the accused if they were satisfied beyond any reasonable doubt.
Grounds 7, 8, 11 and 13: Corroboration
33 The interlinked questions of corroboration and the admissibility of what was described loosely as “system evidence” were at the heart of this case. Given the sparse and generalised nature of the evidence of the individual complainants taken separately, it seems difficult to believe that the jury were not influenced, perhaps heavily, by the fact that the same allegation was being made by a number of different complainants. The law relating both to system evidence and corroboration is complex in any case, and in this case these separate but related issues were of such importance that they required a very clear explanation to the jury.
34 The trial judge announced that he would give the jury a corroboration warning. It is within the discretion of the judge to consider whether, in any particular case, the jury should be warned that it is dangerous to convict on the evidence of the complainant alone unless that evidence is corroborated by other evidence in the classic sense of evidence which shows not only that an offence has occurred, but also that it has been committed by the accused. In this case the trial judge advised the jury that the law “asks for care and caution” where there is no corroboration. He went further and addressed the question of what specific evidence could amount to corroboration. He instructed the jury that the evidence of MH to the effect that what happened to him had also happened to PH, was capable of corroborating the evidence of PH. In relation to the case of DF, he instructed the jury that if they considered that the evidence of CD referred to the same incident being described by DF, then that evidence was capable of amounting to corroboration. On the other hand he said that there was no direct evidence relating to matters of which MH complained, and so in that case “you are dealing with a witness who is unsupported by corroborative evidence in his account, and there again the law requires care and caution to be exercised before you arrive at a view of guilt.” Again in relation to JK he said “In the same way, it would seem that the account of JK does not speak, or in the body of the testimony does not speak of corroborative supportive evidence, and care and caution in that respect [is required in] that you are dealing with complaints of indecent assault that is not supported by corroborative evidence”. Earlier however the trial judge had dealt with the general question of the possibility that one complainant’s evidence about what had occurred to him could support the case made by another complainant. He said:
“The evidence of each of the complainants is capable of acting as corroborative evidence in support of the other complainants, provided you were satisfied to act upon that evidence in the first place, so that if you are convinced that the evidence of a witness beyond reasonable doubt to say that what Mr H, Mr M, Mr H, Mr K or Mr F had said is reliable and leaves you with no reasonable doubt, after everything that has been said, well then you can act upon that as potential corroborative evidence of the complaints of the others.”
35 While this analysis of the evidence in the case is technically correct, it is the view of this court that the direction to the jury was insufficiently clear and detailed on these difficult concepts. First, while the individual statements, when read against a background knowledge of the difficult legal concepts involved, may be correct as a matter of law, it seems at least possible that the jury, lacking such knowledge may have had difficulty in understanding the direction in relation to the admissibility and potential corroboration of the evidence of the individual complainants. Furthermore, there was at least some level of confusion between the general statement that the evidence of one complainant could be the corroboration of the evidence of another, with the statement that the evidence of MH and JK was unsupported by corroborated evidence. Second, this court does not consider that in truth the evidence of CD was capable of being corroboration of the evidence of DF. On its face it contradicted it both in detail (whether DF was standing or sitting on the knee of the accused) and more importantly as to frequency (whether it was a single incident or occurred repeatedly). Not only was such generalised evidence of little value in providing support for evidence which itself lacked any precision or definition, it was also necessarily prejudicial since it suggested a regular course of indecent assaults not charged or otherwise referred to in the evidence. Furthermore to pose the question as to whether the jury considered the evidence related to the same incident or some other incident, seemed to suggest that the evidence was to be accepted and the only question was whether it disclosed one incident of indecent assault or many. In this way a weakness in the prosecution case, namely that it was not apparent that CD and DF were even referring to the same incident, became a possible source of prejudice for the accused. It is fair to observe that this arose from a misunderstanding of the line being taken by the defence and having been requisitioned the judge readily agreed to address it with the jury and did so by explaining that the defence was questioning whether the evidence could amount to corroboration. However the possibility that the jury were being asked to choose between a version in which CD corroborated DF’s evidence, and one where he gave generalised evidence of other incidents of indecent assault, illustrates the dangers in this type of case. Furthermore the jury were given no instruction on how to deal with such evidence if they were not satisfied that it related to the same incident. Third, the warning on corroboration was not in this court’s view sufficient to convey the essence required by the law once it is decided, within the court’s discretion, to give such a warning. To say that “the law requires care and caution to be exercised before you arrive at a view of guilt” is likely to be confusing, since a jury might well consider that they were obliged to exercise care and caution before coming to a view of guilt in any case. It is not clear what was added by these words. Furthermore, all warnings given to juries are an attempt to give to a jury approaching a one off task something of the general experience of courts. Thus whatever language is used, it is necessary to convey to a jury that the law considers it dangerous to convict in the absence of corroboration, because by definition these offences occur in private, or at least in circumstances of some furtiveness, and there have been occasions where evidence apparently plausible, has subsequently been shown to be untrue. Accordingly, over and above the degree of care and caution they would normally expect to exercise in coming to a verdict of guilt beyond any reasonable doubt, the jury should recognise that it is the law’s experience that it is dangerous to convict on the uncorroborated evidence of a complainant, and should only do so when, having considered the warning, they nevertheless feel a very high degree of assurance that the evidence is true. Unless something of this nature is conveyed to the jury, there seems little benefit in giving a corroboration warning at all.
36 Fourth, and perhaps most importantly, the jury were told, correctly in the view of this court, that the evidence of one complainant was admissible in support of the evidence of another, and could therefore provide corroboration. However, as counsel for the accused observed at the outset of the case, the law relating to such system evidence is far from clear or indeed satisfactory. It is unfortunate that after some initial skirmishing on the issue there was no debate on the admissibility of this evidence, the circumstances for such admissibility or the manner in which it should be addressed by the jury. Indeed, it is desirable in cases of complexity and where such so called system evidence looms large – as it undoubtedly did in this case – that the court, together with counsel for the prosecution and accused, should seek to address the question of system evidence, and the manner in which it may be admissible, at an early stage in the trial, and certainly before the speeches to the jury, so that all the participants are aware of the basis upon which such evidence is being admitted in the case.
37 Had such a debate taken place, it seems probable that the jury would have been given more guidance, and therefore more help, in relation to this aspect of the case. Given the fact that the evidence of individual complainants was given at a level of generalisation and abstraction, it seems likely that the jury were significantly influenced by the fact that evidence of indecent assault was given by a number of different complainants. It is desirable that the court should first address the question of whether in any given case such evidence is admissible in relation to the counts relating to other complainants. If it is decided that such evidence is admissible, (and in this case that was not really challenged) the jury should not only be informed of this, but also, and more importantly, why that is so. Initially such evidence was treated with considerable caution by the courts because of the potential for prejudice and the shifting of the focus from whether the accused was guilty of a specific offence on an identified occasion, to a more generalised consideration of the accused’s character and propensities. But if for example, the same person had lived in a number of different places and complainants had come forward independently and described in varying degrees and detail offences containing perhaps a single distinctive element or signature, then any fact finder would be entitled to place considerable reliance on the fact that in the absence of deliberate collusion, it would be extremely unlikely that such witnesses could emerge by pure coincidence having the same mistaken or indeed false memory involving the accused. The force of that reasoning is undeniable and explains why notwithstanding the risks, such evidence is admissible. However if the jury was to adopt that line of reasoning in this case, it had to also take account of the fact that there were a number of other confusing factors which were relevant. First, these allegations involved a teacher and a limited time span. The complainants came from two classes in the same school in the same location. There was also, it appears, a history of severe corporal punishment in an atmosphere that was tough and challenging. There are now civil proceedings in being. All of these features tend to some extent, against the classic picture of individual unconnected complainants. Drawing conclusions from the possibility of events occurring by random, rather than simply assessing the evidence in relation to a particular incident, is permissible, but it is an exercise in logic and probability: in the absence of some connecting factor, it is highly unlikely that individual independent accounts of similar conduct could emerge and yet be mistaken. The greater the number of accounts the more remote the possibility of collective error. This is a powerful line of reasoning but its force is dependent on the exclusion of any possibility of connection between those giving the accounts, particularly when it is otherwise limited in verifiable detail. It is necessary to take into account the possibilities of suggestibility, contamination of evidence, copy cat evidence or collaboration, if only for the purposes of excluding them. There was also the unusual feature of this case that it was alleged that the incidents occurred in full view of a class of between 60 and 70 boys, and although necessarily furtive, contained elements which were undeniably public such as the vigorous rubbing of the accused’s face against that of the complainant. Furthermore the case had been the subject of a comprehensive garda investigation, which appears to have sought out pupils in the relevant classes.
38 It was also important that the jury distinguish between two different processes of reasoning which may have been available to them. In the first place, if a jury concluded in relation to any one complainant that the case was compelling and that they were satisfied beyond any reasonable doubt of the guilt of the accused in relation to such incidents, then they could consider that it was now more likely that the account given by another complainant of a similar incident was true. However, it is also logically possible for a jury not to be satisfied beyond any reasonable doubt on the individual evidence relating to any single complainant or incident, but nevertheless to reach that point of being satisfied beyond reasonable doubt by virtue of the range of offences in respect of which evidence has been given, their interconnection, and the unlikelihood that the evidence in respect of each of the complaints is either the product of collusion or chance. But it is important that the jury should recognise which of these courses it is contemplating because it is obviously important to recognise, if indeed that is the case, that the jury is not satisfied beyond reasonable doubt on the individual evidence taken alone, and therefore the reliance being placed on the system evidence is that much greater. None of this is comprehended by a general statement that the evidence of one complainant is admissible in relation to another. However counsel for the appellant did not rely on these matters, nor was any doubt in relation to the nature of the evidence or any question of possible contamination or collaboration, conscious or unconscious, raised. However there had been some limited discussion of the question of system evidence at the outset and in any event this court must come to a conclusion on the safety of the conviction in this case. While no individual part of the judge’s direction to the jury on this issue could be said of itself to be clearly wrong, it is nevertheless the view of this court that overall, the direction fell short of the level of detail required to give effective guidance to the jury on a central, and difficult, issue.
Ground 9: Purported Corroboration by MH of PH’s Evidence
39 The appellant complains that the differences between the account given by PH of the incidents alleged by him, and that which MH described and said he saw happen to PH, was such that the evidence could not amount to corroboration of the evidence of PH. Although the evidence of PH was perhaps the most detailed of any of the evidence given by any of the applicants, it does not appear to this court that the evidence of MH was so different in detail that it was not capable of corroborating the account of PH if believed by the jury. In this case, it is significant that both witnesses spoke of events which occurred on a number of occasions.
Grounds 14 and 15: Matters Arising in Cross-Examination
40 When PH was being cross-examined it was put to him that in a report prepared by a consultant on his behalf, and which had been disclosed to the defence, he was recorded as having been shown statements from other boys. This would clearly have been important on the question of contamination or suggestion but the complainant denied it. Counsel for the accused returned to this in his speech to the jury and asked them to consider if it may have been true. The judge in his charge said:
“Don’t suppose ladies and gentlemen that you are being asked to speculate … act upon the evidence. It was there in the document, it’s a fair foil and tool to use to probe. You’ve had the answer of MH saying he disagrees and [the consultant] is wrong. And Mr Hartnett building on that asks you to suppose he did say it. Well I am asking you not to because you begin to speculate. You are moving into areas not supported by the evidence.”
41 It was argued by the appellant that since these documents were produced by the prosecution and had been disclosed to the defence, counsel for the prosecution had full knowledge of all matters and a conflict between the complainant’s evidence and material contained in the reports had to be addressed. This court is satisfied that this point is misconceived. The trial judge was clearly correct in telling the jury that what was contained in the reports could be put to the witness in cross-examination, but that the only evidence upon which they could act was the evidence of the complainant in response.
Ground 16: The Account Given by the Accused in his Statement
42 The judge in his charge to the jury paraphrased what the accused had said in his interviews. No complaint is made about the detail of that or the accuracy with which it is recounted but it is suggested that the jury should have been told that if they accepted the explanation of the accused they must acquit, and if they thought that what the accused had said might reasonably be true, they should also acquit. Even if they rejected his account they would still have to be satisfied on the evidence, beyond a reasonable doubt, of the guilt of the accused before they could convict him. In this court’s view, the fact that the jury could have been so told does not mean that the charge was defective because it did not contain the statements desired by, or on behalf of, the accused.
Grounds 10, 17 and 18: Counts Relating to DF
43 In these grounds the appellant contends that the trial judge ought to have granted a direction on the count relating to complainant DF in view of the five year period in which the offence is alleged to have occurred and the frailty of the complainants evidence, and also contends that the trial judge was wrong to allow the evidence of CD as possible corroborative evidence of DF.
44 This matter has already been addressed in part above. This court has come to the conclusion that although the trial judge was careful to suggest that the evidence of CD could only be considered to be corroboration if the jury first considered and were satisfied that he was referring to the same incident, in truth the evidence could not properly have been regarded as corroboration since it was too general, and arguable contradictory, to be even capable of being presented to the jury as evidence capable of corroborating that of complainant DF. Furthermore, this count presented an extraordinary, if not unique combination of features: a single offence of indecent assault alleged to have occurred on a school day within a period commencing on the first day on which the complainant attended the school, and ending on the last day he attended that school almost five years later; evidence of an entirely generalised nature which could not identify the occasion with any greater clarity. The evidence offered as corroboration did not provide any greater precision but was of undoubted prejudicial value. While this court recognises that a trial court has a unique vantage point in assessing the evidence of witnesses, nevertheless, it is satisfied that the count relating to the complainant DF ought to have been withdrawn from the jury.
Ground 19: Cumulative impact of individual grounds
45 In J.T. v. DPP [2008] IESC 20 Denham J. (as she then was) applied what she described as the “omnibus principle” being that while none of the matters individually would justify prohibiting a trial, the court must view the matter with regard to the cumulative effect of the concerns. While this principle was identified in the context of a claim for prohibition, there is no reason why it cannot also be applied in the context of an appeal from a conviction. It applies with particular force where the counts are interlinked and the prosecution relies on system evidence so that evidence in respect of one complainant is admissible in the counts relating to other complainants. Trials of offences consisting of indecent assaults alleged to have occurred as long as 40 years ago impose significant challenges if the demands of a fair trial are to be met. The Superior Courts are slow prohibit trials on grounds of lapse of time or absence or loss of evidence, and correctly so. This involves a recognition of the important function of a trial court, and trial judge, in ensuring that a trial is fair in fact. It is also preferable to seek to judge the fairness of trials and indeed the importance of individual items of evidence in the context of a trial which has occurred, rather than seeking to predict the possible impact of such matters in advance. But this process necessarily requires that courts scrutinise carefully those trials when they take place. In this case the trial was conducted with admirable efficiency and sensitivity. While many of the matters identified in the appellant’s ground of appeal might in other circumstances not give rise to the same level of concern, the fact remains that this was a trial of some 70 criminal offences alleged to have occurred over a period of between 44 and 35 years ago, and where there was little if anything by way of background against which to judge the stark allegations of indecent assault. The law rightly requires a very high standard of proof before a citizen may be convicted of any criminal offence. Here the prosecution case was that each case was intertwined with the others and each supported the other. Accordingly once individual errors are identified which undermine some of the convictions it is not possible to isolate other counts from that frailty since it is not possible to be satisfied that the jury would have convicted the accused on those counts without the evidence and conviction on the other counts. This court is satisfied that the reference to recovered memory in relation to PH, the reference to the honesty of the man in relation to JK, and the treatment of the case of DF were errors in the context of this case and that direction in relation to the central issues of system evidence and corroboration was insufficiently clear even if not the subject of express requisition on behalf of the accused. Accordingly the court concludes that the conviction of the appellant cannot be sustained and must be quashed.
DPP -v- Eamon Cooke
[2009] IECCA 55 (11 May 2009)
Date of Delivery: 11 May 2009
Court: Court of Criminal Appeal
Composition of Court: Macken J., Hanna J., Mac Menamin J.
Judgment by: Macken J.
Status of Judgment: Approved
Judgments by
Result
Macken J.
Other (see notes)
Notes on Memo: Refuse leave to adduce additional evidence. Dismiss appeal against
conviction. Sentence appeal pending
Macken, J.
Hanna, J. No CCA 84/07
MacMenamin, J.
THE COURT OF CRIMINAL APPEAL
Between/
DIRECTOR OF PUBLIC PROSECUTIONS
-and-
Eamon Cooke
Applicant
Judgment of the Court delivered on the 11th day of May 2009 by Macken, J.
This is the applicant’s application for leave to appeal against conviction. He was convicted on the 28th February 2007 and on the 1st March 2007 of a total of 42 counts of assault in respect of two different complainants, the offences taking place, in the case of one complainant, between 1974 and 1978, and in respect of the other, between 1976 and 1978. The applicant was sentenced on counts 22-26 to one year imprisonment in respect of each of these, to run consecutively one to the other, on counts 38-42 to one year in respect of each of these, also to run consecutively one to the other, this latter five year total sentence to run consecutively to the first five years imposed on counts 22-26. On counts 1-21 and 27-37 the applicant was convicted of one year in respect of each offence, each to run concurrently with the other, and all to run concurrently with the sentence imposed on count 38. The total term to be served therefore amounts to ten years dating from the 30th March 2007, with a reduction from that ten year total sentence of the time already spent in prison. To complete the picture, the applicant had previously been convicted in December 2002 on the same charges of indecent assault in respect of the same two complainants. That conviction was quashed in May 2006 by this Court arising from the learned trial judge’s charge to the jury in that trial.
The applicant has listed a significant number of grounds of appeal against conviction, 13 in all, but some of the different grounds, in reality, overlap. For example grounds numbers 1-3 all concern the question of corroboration. This application is, at this time, against conviction only, as is usual. It is appropriate to set out a general description of the groups of grounds, which are as follows:
1 Corroboration (grounds 1-3)
2 Complaints concerning the inadequacy of the learned trial judge’s charge (grounds 4, 5, 8, 9, 10, 11, and 12)
3 The absence of certain materials (ground 6(1) and (2))
4 The manner and content of the cross-examination of the applicant (ground 7)
5 The perversity of the judge’s charge (ground 13)
At the commencement of the hearing of this application for leave, on the 21st July 2008, senior counsel for the applicant, properly notified the Court that the two main grounds of appeal both arise from the learned trial judge’s charge especially as concerns the two issues of delay and corroboration, and without formally conceding any of the other grounds of appeal, accepted that these are encapsulated in, or arise in consequence of or in connection with the two main grounds.
Counsel also indicated that she had been briefed in the matter only a short time previously, but had consulted with her instructing solicitor and with the applicant, and, upon enquiry of the Court, indicated that her client was fully satisfied to proceed with his appeal. Later in the course of the hearing however, counsel notified the court of her client’s request to have the application adjourned after all, to a subsequent date. Counsel for the applicant having presented the applicant’s case with admirable clarity and in a highly competent and professional manner, it was not immediately clear to the Court why the applicant wished to adjourn the application, but in circumstances where counsel had been briefed only a very short time previously, the Court, exceptionally, permitted the adjournment, and the matter came on for hearing on the adjourned date, the 23rd February 2009.
The application to add new grounds of appeal:
After the adjournment, and before the resumption of this leave application, by notice of motion dated the 28th day of January 2009, the applicant sought leave to adduce new evidence and, in consequence, to add several new grounds of appeal. The reliefs sought are in the following terms:
(1) Leave to adduce new evidence in the form of extracts from a book entitled “Playing in the Dark” written by S. K. McG. (with Rosie Dunn), one of the complainants to the prosecution of the applicant, in support of the grounds of appeal already lodged and the new grounds of appeal sought to be relied upon which book has been published since the trial and conviction of the Applicant.
(2) Leave to add and rely upon the following further grounds of appeal at the hearing of the above entitled Appeal:-
(a) A further and new allegation of anal rape made by the complainant S. McG. in the book “Playing in the Dark” never made heretofore casts serious doubt upon the credibility of her testimony and thereby renders the convictions of the Applicant unsafe.
(b) The fact that this allegation of anal rape arises in circumstances where S. McG. first discussed this assertion with other complainants at the trial.
(c) The vivid and detailed description of S. McG. observing the Applicant in the Intensive Care Unit of St. James Hospital in or about 1983 is manifestly false. This casts considerable doubt upon the reliance to be placed upon the credibility of any allegations made by this Complainant.
(d) Given the Joint Trial and conviction of the Applicant relating to counts concerning two complainants and the reliance placed by the Prosecution on the evidence of each complainant as giving support to the evidence of the other, all of the convictions of the Applicant are thereby rendered unsafe.
This notice of motion is grounded on several affidavits, sworn by the applicant on the 28th January 2009, 6th February 2009, and the 23rd February 2009, and by his solicitor Gregory F. O’Neill, on the 28th day of January 2009 and the 20th February 2009. The application is opposed by the respondent and an affidavit was sworn on his behalf by Inspector Gerard Kelly on the 23rd February 2009.
The application to adduce new evidence and add further grounds is based exclusively on extracts from the above book, authored, or co-authored, by one of the complainants in the trial. The publication of this book had become known to the respondent who notified the applicant’s solicitor of the fact of intended publication. There was some difficulty securing a copy of the book but eventually this became available and was furnished to the applicant’s solicitor by the respondent. The applicant complains about two particular matters dealt with in the book.
The first of these concerns a claim by the complainant in question that she had seen the applicant in the intensive care unit of St James’ Hospital in 1983, and of the adverse effect this had on her. A second concerns a further extract from the book in which it is suggested that the applicant may have, or had, allegedly further abused that complainant in a manner never previously disclosed, either to the gardaí or in the course of the trial, or at any time, so far as the applicant is aware, prior to the publication of the book.
As to the first extract, the applicant in his affidavit grounding the motion avers that the “contents of my solicitor’s grounding affidavit are true”. The first extract is described by him as the “vivid and detailed” description of the complainant, S. K-McG, observing the applicant in the intensive care unit of St. James’s hospital in 1983. The applicant’s solicitor avers in his first affidavit, having regard to the facts as disclosed to him by the applicant, and to the true position, that the complainant’s statement is “manifestly false”. Mr O’Neill also swears that the statement “casts grave doubt on the reliability to be placed on the credibility of the complainant”. By his affidavit of the 6th February 2009, the applicant refers the court to an “independent record of my admissions as an inpatient” sought on his behalf by his solicitor from the hospital. The basis for the above classification of the extract and its consequences, are the applicant’s instructions to his solicitor that he had not been, at the time claimed, an in-patient in the intensive care unit in St James’ Hospital, and that the first occasion on which he was admitted was in 1997 when he suffered a heart attack. In fact, upon further inquiry on behalf of the respondent, it was established that the applicant had in fact been admitted to St James’ hospital, but at an earlier date to any of those previously listed by the hospital. This was not in 1983 as the complainant stated, on her recollection, but in 1984 when she was about 17 years old, the events the subject of the charges having occurred at a time when the complainant was between 7 and 11 years old.
This information of course affected the first ground upon which the notice of motion is based. Counsel for the applicant, when it became available, accepted that there had been an error, because, it was said, the full information had not been made available by the hospital to the applicant’s solicitor. She correctly accepted that the discrepancy between 1983 and 1984 in the recollection of the complainant was not critical to the statement in the book or to the issue before the court. No criticism can be made of the applicant’s solicitor, who took all appropriate steps in the matter upon instructions received from the applicant. Mr. O’Neill was very diligent in following up his instructions.
However, there remains a real question mark over the limited and careful averment of the applicant to the effect only that he had never been in “the intensive care unit” of St James’ hospital at the time, and since his first admission was in 1997, as a cardiac patient, the complainant was “entirely untrue” in the matters described in the book. This averment clearly did not disclose the full picture to the court. It is particularly of concern that this averment was made by the applicant, who must have known that he in had in fact been in St James’ hospital in or around the time the complainant was speaking of, and was there for a period of several days. He has referred on affidavit to his admission “as a day patient”, but that was in 1993 according to the hospital records. The applicant’s further affidavit of the 23rd February 2009 purporting to explain the position, is also very telling. It states, inter alia:
“(3) I say that having read the book by S. K. McG. my instructions to my solicitor were that I was never in the intensive care unit in St James’ hospital during the 1980s. I say that I had a recollection of being a day patient in St James’ hospital sometime in the 1980s but I certainly was never in intensive care.
…
(5) I say that Mr O’Neill visited me at Wheatfield prison on the 19th February 2009 and informed me that the records at St James’ hospital had found a further in patient episode between the 11th July 1984 and the 16th July 1984. I remember that I was in the hospital for a period about this time in relation to an injury I received to my leg when using a mechanical saw. I have no reason to believe that I was ever placed in the intensive care unit during this admission.”
Nowhere in this affidavit is any explanation given by the applicant for having omitted to give this very important information – indeed the only relevant information – to his solicitor, or any basis for any surprising lapse in memory, and indeed none is claimed. Were this omission claimed to be based on a lapse of memory, it would be difficult to accept, as the true position of the applicant’s memory is evident from a consideration of the transcript of the trial, which discloses a characteristic, pointed out by counsel for the respondent in a different context referred to below, namely, that he has a quite extraordinary and precise memory for details, including dates, people, places, events, happenings, occurrences and so forth, over a lengthy period of time and stretching back very many years, without being confused or unsure of these in any material respect. The court does not find it credible that a stay in the hospital, as an inpatient, for five days in respect of an injury by a mechanical saw, could have been forgotten by the applicant. The court finds it disquieting that the applicant sought to distinguish, in his latest affidavit, his admission that he had been in the hospital around the relevant period after all, and his continued insistence only that he was not in the “intensive care unit”.
Liberty to adduce additional evidence and to add an additional grounds based on the statement in the book concerning St. James’ hospital is refused, not only because of the events as they unfolded, and as the true picture emerged, as properly accepted by the applicant’s counsel, and which supports in a material respect the complainant’s position, but also because the court feels obliged to conclude that the applicant did in fact well know and recollect the earlier admission, but failed to inform his solicitor of it. He has given no explanation for the omission or for the failure to disclose the full facts surrounding the history of that admission to the hospital, including the highly relevant fact that he had been admitted for as long as five days and for quite a serious injury in or around the relevant period.
On the second ground, still extant, that is, the statement in the book concerning the further allegation of abuse, it is necessary to cite what is said and published. The particular extract commences at page 56 of the book and reads as follows:
“This short period of time when his abuse of me suddenly escalated is difficult for me to talk about because it brought so much shame into my adult life. At the time I was still drawn to visit his house even though I was clearly becoming confused. The incentives he gave me, and the freedom in the house, were still enough to lure me back time and again because that’s how effectively he had groomed me. What happened in his bedroom that day, which he passed off as ‘an accident’, was one of the most frightening examples of his power over me and the extent to which he would go in order to fulfil his disgusting and perverted desires. But it didn’t stop there.
A short while later, I was on my own in his bedroom when he came in and offered me a banana to eat. I was delighted because fruit was kind of scarce for us at the time. It was a very strange experience because while I remember his coming into the bedroom and me then eating the fruit, I can’t recall anything of what happened next. So much of what Cooke did to me is vividly imprinted on my memory to this day, that I’m certain that on this occasion I was drugged. I didn’t knowingly take any tablets, but I can never be sure that he didn’t put something into that banana.
The next thing I can remember is waking up in his bed and realising that I didn’t know what had just happened. I was lying on the side of the bed, groggy and disorientated. I felt really sick and poorly. More than anything, I remember feeling frightened because it was the first time I had ever woken upon in any environment other than my own home, or at least woken up to find my family were nowhere nearby. I know I can’t have been asleep for more than an hour because it was late in the day and Cooke would have known I had to be home for my dinner. Worse still, I felt very uncomfortable. I suddenly felt like I wanted to go to the toilet and my bottom was very sore.
Then I saw blood on the sheets. I was horrified and asked Cooke where it had come from. He said he had cut himself shaving, but I knew it couldn’t be that because it was right where I had been sitting. I didn’t know what to think back then, but many years later it dawned on me that something very terrible happened that day. Today I am certain that he drugged me in an attempt to rape me anally while I was unconscious.
This experience sickens me so much I have never been able to speak publicly about it before. I couldn’t even include it in my adult statement to the Garda because even now it makes me feel dirty and embarrassed. When it happened I didn’t feel dirty as I was too young to realise the significance of the assault. At Cooke’s criminal trial, I met two more of his victims who had been through the very same experience some years after me and realised then that it was not a one off – it was the very worst level of his abuse. His depravity knew no bounds.
I confessed to one of the victims I met at the trial that I had not felt able to say everything in my police statement because I had felt so much shame at some of what had happened to me. I confided that, at that stage, I had not even been able to tell my own husband. She asked if I would share what letter the act began with and I said ‘b’. She asked if he had buggered me and I said I wasn’t sure but believed he had certainly attempted to. Then, to my horror, it came up again with another of the victims who said, ‘Oh my god, he told me the blood on the sheets was tomato sauce’.
Mercifully, I had remained asleep throughout the whole incident. That was probably the most severe assault on me, but through a misplaced sense of shame and embarrassment, it was the one thing I left out of my later police statement because I was too mortified to tell anyone. It probably would have meant a longer prison sentence for Cooke had I had the courage to speak out sooner. This is still a very hard part of my story to share with anyone, but if I left it out I would be failing to demonstrate just how sick an individual Eamonn Cooke is.”
The legal principles or criteria applicable to an application to adduce new evidence and to add further grounds are well established. They are encapsulated in the judgments of both the Supreme Court, and of this court, in particular in the cases of DPP v O’Regan [2007] 3 IR 805, DPP v Halligan (unreported Court of Criminal Appeal 4th July 2008) and DPP v Willoughby (unreported Court of Criminal Appeal 6th July 2004), as well as Murphy v Minister for Defence [1991] 2 IR 161, and many others. Those criteria may be stated as follows:
(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.
(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.
These principles have been widely applied at this stage and the above extract, which is from DPP v Willoughby, supra., adopted and endorsed by the Supreme Court in DPP v Regan, supra., must be considered as the established law on the topic at this time.
Counsel for the applicant submits that the extract falls squarely within the above principles, because had this material been made available after the complainant’s original statement to the gardaí, but before the applicant’s trial, it would have been used on behalf of the applicant as part of his defence. Counsel for the respondent argues that the criteria are not met in the present case because the statement consists only of “post trial narrative” which does not bear on the actual charges laid against the applicant and does not affect them. Counsel for the respondent further submits that it is not at all certain that the above information, even if it had been disclosed prior to the applicant’s trial, would or could have been used by the defence, as claimed, having regard to the likely dangers of doing so.
Conclusion:
The above allegation in the book is a serious one, although not as definite in score as the written submissions filed on behalf of the applicant suggest. It was not disclosed prior to publication. The question which arises is whether or not the statement falls within the parameters or the requirements set out in the above case law. This is not a case of the defendant failing to bring forward his entire case at trial as required under (a) above, because clearly the defendant brought forward his entire case in relation to the actual charges the subject of the trial. Nor is it the case, and there is no basis for the court to find, that the statement in the book could have been known or discovered by the defendant prior to his trial, in the absence of any admissions on his part. It would be wholly inappropriate for this court to express any view on its veracity or accuracy. Its publication post-dated the trial. On such unusual facts it does not appear that criteria (a) and (b) above, could be wholly applicable in the circumstances of this particular case.
As to the application of the two remaining requirements, these have been the subject of further jurisprudence, including the judgment of this court in DPP v Naughton (Unreported, Court of Criminal Appeal, 3rd March 2008). That case concerned fresh evidence in the form of documentation consisting of notes of a meeting of a social work department of a hospital which has not been previously disclosed. In determining how to approach the application of the above criteria, this court (Kearns, J.) stated:
“The sole issue therefore is to determine by means of an objective evaluation the potential impact of this documentation, had it been available to the defence at the time of the trial.”
And further:
“The principles in that regard were laid down in a number of cases beginning with the judgment of Blayney, J. in The People(DPP) v Gannon [1997]1 IR 40 where he said at pp. 47-48:
“The court (in that particular case) could not conclude for certain that the advent of the newly–discovered material would have had no effect on the manner in which the case was conducted. The furthest one could go would be to say that it is possible that it might not have had any effect and this would not relieve the court from examining what the position would have been if the defence had availed of the newly– discovered material and altered its strategy accordingly.”
In the recent case of DPP v Michael Joseph Kelly [2008] 2 ILRM 217, in the context of an application pursuant to s.2 of the Criminal Procedure Act 1993, but applying the above criteria, this court said:
“What the court is required to do is to carry out an objective evaluation of the newly discovered fact with a view to determining, in the light of it, whether the applicant’s conviction was unsafe and unsatisfactory in the context of what the legal advisors might have done with the material if it had been available to them.”
As to evaluating on an objective basis whether the evidence is credible and whether it might have had a material and important influence on the result of the case, considering it by reference to all other evidence at the trial, this court is not satisfied that the applicant has established that these criteria are met, for the reasons now set out.
It is true that the material now sought to be adduced as fresh evidence can be described, as it is by the respondent, as “post trial narrative of sexual abuse”. But that description of the material, even if accepted as a correct one, does not, in consequence, exclude it from falling within the ambit of and meeting the above criteria. Whether it does or not must depend on an appropriate objective analysis of the material in question. Such narrative or allegation would, however, have to be in some way in material conflict with the evidence of the complainant in relation to the charges on which the applicant was convicted, or undermine that evidence in such a way as to have an important influence on the result of the trial. The applicant in the written submission, points to the complainant’s evidence at trial as not including an allegation of penetration by the applicant, and contends that the new evidence is in conflict with that evidence, by claiming an alleged anal rape. Counsel did not, in oral argument, develop that submission. On an objective analysis of the material, it would appear that the furthest the complainant goes in the extract from the book is to say that she believed, many years later, but did not appreciate at the time, that an event may have occurred or possibly occurred or a further assault may have been attempted by the applicant, but the extract does not, in fact, allege penetration. It is therefore not surprising that counsel did not base her argument on this alleged material conflict.
Counsel on behalf of the applicant submits, nevertheless, that the extract could have had a material effect on the credibility of the complainant and therefore could have been used as a valuable tool in the course of cross-examination to challenge her credibility. As to this argument, it will be recalled firstly that credibility was seriously in issue in the trial itself, and on that issue the jury quite clearly believed the two complainants notwithstanding vigorous cross-examination, and disbelieved the defendant, notwithstanding his own evidence and the vigorous defence of his innocence.
Having regard to the outcome of the proceedings in which the credibility of the complainants was accepted by the jury, it is not clear that this additional material would have been “of material and important influence on the result of the case” on that ground. The phrase used in all the jurisprudence is not limited to materiality in terms of possible cross-examination. Rather, the new evidence which is sought to be admitted must be of a nature which might have a material and important influence “on the result” of the case. A material and important influence, even if not a decisive influence, on the result of the case in the present trial could only consist of a reasonable possibility or perhaps even a likelihood of an acquittal of the applicant on some or all of the charges in question. As was stated in the Supreme Court in DPP v O’Regan, supra., in relation to the latter point:
“Equally, it can only be seen as entirely reasonable and proportionate to incorporate in the principles a requirement that the proposed new evidence is credible and, if admitted, that it might have a material or important, though not necessarily decisive, influence on the result of the case. The Court is also satisfied that any consideration of materiality must be conducted by reference to all the other evidence at the trial and not considered in isolation.” (emphasis added)
The same approach is seen in English case law. The above principles and their applicability are similar to those found to be appropriate in R v Parks [1961] 3 All ER 633 in which Parker, J. stated:
“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.” (emphasis added)
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.”
Secondly, when assessing the materiality of the evidence, as is clear from DPP v Regan, supra., this must be considered by reference to all other evidence in the trial, and not in isolation. As mentioned, it is suggested by the applicant’s counsel that this requirement is met because the new material could be usefully employed in the course of cross-examination to probe alleged inconsistencies in the applicant’s statements. This is premised on the assumption, correct in the court’s view, that the new material would have been included in a subsequent statement of intended evidence, made available to the defence prior to the trial, and which might well be, depending on its nature, in conflict with or different to an earlier statement. The accused’s counsel could, as is stated, seek to explore any alleged inconsistencies between the two statements for the purposes of undermining that complainant’s evidence and/or credibility. The possibility exists, of course, that such further allegations or complaints of the nature set out in the above extract from the book might have been the subject of additional charges. But, even if further charges were never laid, this additional material might also have been accompanied by psychological or other evidence as to the reasons for its late disclosure. Leaving aside these matters, and taking the material at its highest however, from the applicant’s position, having regard to the nature of the allegation it is not at all clear to the court, and counsel for the applicant did not explain – despite being challenged by counsel for the prosecution to do so – how such an allegation might be safely utilised in the course of cross-examination of the complainant. It is perfectly obvious that defence counsel at trial would find it immensely difficult to challenge the complainant on such an explosive statement on the grounds of alleged inconsistency with her earlier statement, without running the very high risk that the complainant would be permitted to give extremely damaging further or rebuttal evidence to the jury, including evidence of the reasons why the nature of this particular allegation and its effect on her led to its late disclosure.
The court has considerable doubts as to whether an allegation of such a prejudicial nature could or would ever have been introduced in evidence in the course of a trial on the extant indecent assault charges, and considers that if there were any attempt on the part of the prosecution to introduce such evidence this would more likely have been objected to as being wholly prejudicial to the defence and as having no probative value in relation to the charges actually laid, even of not being admissible at all in respect of them. Equally any attempt by counsel for the accused to introduce the material would have the likely effects mentioned earlier. The court is of the view therefore, that, when evaluated objectively, not in isolation, but by reference to all other evidence adduced, including evidence of simultaneous assaults of two young girls, this fresh evidence would not likely have had a material or important influence on the result of the trial, nor would it likely have led to a reasonable doubt in the minds of the jury as to the guilt of the applicant.
Having regard to the foregoing, the applicant has not established, and the court is not satisfied, that the new evidence sought to be adduced by way of the cited extract from the above book meets the relevant requirements, and the application to do so, and to add consequential new grounds based on it, is refused.
The original grounds:
Returning to the application for leave to appeal on the original grounds, prior to the application for an adjournment, counsel had set out, from the 14 grounds of appeal lodged, the two main grounds of appeal being pursued, namely, (a) the inadequacy of the learned trial judge’s warning in the course of her charge on question of delay, which involved not only grounds 4 and 5 of the Grounds of Appeal, but also several other associated grounds, namely, 6 (in part), 8, 9 10, 11 and 12, all being connected to the above ground, and (b) the manner in which the issue of corroboration was dealt with, being grounds 1 – 3 of the Grounds of Appeal. It seems clear from the exchanges with counsel that no application is being advanced on Grounds 6(iv) or 7, and that Ground 13 is relevant only as part of the consequences which flow from the two main grounds.
On a preliminary matter, according to the written submissions filed on behalf of the applicant, the fundamental issue central to all the grounds of appeal is stated to be the following:
“All of the issues raised in this appeal concern old cases and the difficulties that arise when old cases are proceeded with by the Director of Public Prosecutions. Each ground of appeal is relied upon, but the gravamen of this appeal is that Mr. Cooke could not and did not have a fair trial having regard to the antiquity of this case. It is submitted that the learned trial judge’s charge to the jury was not sufficient to protect the applicant having regard to the disadvantages suffered by him by reason of the inordinate delay. The particular circumstances of this case and the nature of the evidence tendered and acted upon by the jury render the convictions unsafe.” (emphasis added)
As to the statement that the applicant “could not” have a fair trial because of the fact that is an old case, such a contention, if held by the applicant, could have been the subject of a judicial review application on the grounds that no possible charge or ruling of the trial judge could cure the effect of delay by virtue of the fact that it was an old, or even a very old, case. Either no application for judicial review was sought before the retrial, or was sought and rejected. It must be assumed therefore that appropriate rulings and a proper charge by the trial judge would be capable of ensuring a fair trial for the applicant. No argument to the contrary was made at the oral hearing. The appeal must therefore be considered as proceeding on the basis that neither the rulings nor the charge of the trial judge were in fact or in law appropriate or sufficient, and it is worth noting that the only grounds in reality actually argued by counsel, correctly in the court’s view, are that the trial judge’s charge was inadequate to ensure that the applicant’s trial was fair and the convictions safe.
The court proposes to deal with the issue of corroboration and how it was dealt with in the charge, in the first place, in accordance with the listed Grounds of Appeal, and then with the charge on the issue of delay.
The issue of corroboration: the applicant’s argument
The basic premise of the applicant’s complaint in relation to this can be stated as follows. Firstly, (a) the dates upon which the complainants allege they had been abused did not cover the same period of time and therefore, while there was an overlap in time, it was not possible to separate any particular allegation of the complainants of being abused in the presence of each other, even simultaneously, from those allegations of abuse of each of them at separate times and/or on the non-overlapping dates; (b) while the evidence of each of the complainants was admissible in relation to what she allegedly saw happening to the other complainant, this could not constitute evidence corroborating the evidence of the other complainant, because they were each complainants and corroboration is not permissible in such a case; (c) no corroboration warning was sought on the applicant’s behalf and deliberately so; this had been previously agreed between the prosecution and the defence and the issue of corroboration therefore should not have been raised at all, but was raised by the prosecution; (d) collusion between the complainants, and between them and other witnesses or third parties, was the real basis of the applicant’s defence at trial, and in law, in such a situation, a corroboration warning should not be part of the charge at all; and (e) finally, under this first group, according to the written submissions, but not pressed during the oral argument, the evidence of each of the complainants was unreliable because of lengthy delay and it was therefore impermissible, on that ground alone, to accept or allow the evidence of one to corroborate the evidence of the other.
Secondly, (a) even if the court accepted that the evidence of one complainant could, in law, corroborate the other’s evidence, the learned trial judge erred in principle in the charge arising from use of the term “corroboration” because she failed to warn the jury that the credibility of each complainant had to be examined discretely and first accepted and only then could the jury consider whether or not her evidence was corroborative of the other complainant’s evidence; and (b) counsel for the applicant at trial had sought to have the word “consistency” used, as the being more appropriate in the context of the present trial, but the learned trial judge wrongly failed to charge the jury accordingly.
The respondent’s argument:
Counsel for the respondent argues, firstly, that (a) the learned trial judge’s charge in relation to the issue of corroboration was perfectly acceptable; the “corroboration” referred to in this case related, in reality, to the direct eye witness evidence of each complainant; (b) each complainant gave evidence that the applicant had on numerous occasions indecently assaulted her in front of the other or even simultaneously, in the same room or location; (c) this evidence, being eye witness evidence of the commission of the offences, is wholly admissible direct evidence; (d) the direct evidence of an eye witness to the indecent assault of the other party, is, prima facie, capable of corroborating that other complainant’s account or evidence; (e) if that evidence is accepted by the jury as being independent and credible, it is the best form of “corroborative” evidence; and (f) the applicant is wrong in law in suggesting that corroboration cannot arise where the defence, as here, alleged collusion between the complainants or between either of them and a third party.
Secondly, counsel for the respondent submits that: (a) there was no legal requirement for corroboration, or for a corroboration warning, and points to the fact that the defence made no application in respect of any such requirement; (b) contrary to the contention of the applicant, this state of affairs was clearly indicated after the closing speeches of counsel for the respective parties and after a discussion on the issue between both counsel and the judge which preceded the trial judge’s charge. Thirdly, the actual classification of the evidence in question by the learned trial judge as being “capable of corroboration” had the consequence of conferring a benefit on the applicant, as accused, because it thereby attracted directions from the learned trial judge as to its independence, which was not, in law, required in the case of the direct evidence given.
Finally, counsel for the respondent contends that: (a) the learned trial judge properly directed the jury that they must be satisfied that the evidence of one complainant was credible, coherent and independent, before deeming it capable of corroborating the other complainant’s evidence; (b) the tenor of the charge to the jury on corroboration was akin to an accomplice warning on the evidence in question, and was far in excess of what was necessary, and more than met the legal requirements, if any.
Conclusion:
Having considered the learned trial judge’s charge and her definition of corroboration given in the following terms “it is independent evidence that does not come from the complainant which tends to show in some material particular (a) that the offence was committed and (b) that it was committed by the accused”, this definition appears to the court to be a sufficiently clear and concise definition of corroboration as not to attract any criticism of it.
Counsel for the respondent, in the written submissions, as she did in the course of the trial, draws the court’s attention to the decision of the Supreme Court in the case of DPP v John Gilligan [2006] 1 IR 107 as setting out the correct approach in this jurisdiction to the question of corroboration. Contrary to the applicant’s written submission and oral argument to the opposite effect, in that case the Supreme Court held that it is not a two stage process of determining first, whether a witness is credible, and if so, then addressing the issue of corroboration by means of his/her evidence. It is not necessary for the purposes of this case to set out in detail the entire of the extract from the above case, the judgment being very recent and adopting an approach, which derives from the case of Attorney General of Hong Kong v Wong Muk Ping [1987] 1 AC 501 and which is different to and distinguishes the case law of the United Kingdom. The statement of Denham, J. in DPP v John Gilligan, supra., in which corroboration was a critical issue, is as follows:
“This is a matter of common sense. Corroboration arises where the evidence to be corroborated has a degree of credibility. However, corroboration is not a two stage process. It is not a process in which there is first a determination as to whether a witness is credible, and, if he is credible, then the issue of corroboration is addressed, I would distinguish any two step approach based on an interpretation of R v Hester [1973] A.C. 296.” (emphasis added)
In the written submissions filed on behalf of the applicant, having invoked United Kingdom case law in support of the applicant’s position, the written submissions refer to the above judgment in the following terms:
“The Court is also referred to the case of Director of Public
Prosecutions v Gilligan, (Unrep, Supreme Court, 23rd November 2005) in relation to remarks made by Denham, J. as to the strict interpretation placed on (sic) our courts on the issue of corroborative evidence.”
The Supreme Court decision in the above case – the judgment of Denham, J. was the unanimous decision of the Court – is undoubtedly the law on corroboration in this jurisdiction, rather than that invoked in the written submissions filed on behalf of the applicant. Having regard to the judgment of the Supreme Court in the above case, the correctness of which is not challenged by the applicant, save indirectly by invoking United Kingdom case law, the authoritative statement of the law on corroboration in this jurisdiction is found in DPP v Gilligan, supra.
Defence counsel’s main argument on corroboration in the course of the trial was rather nuanced. His contention and that of counsel for the applicant in this court, was that corroboration was not a matter at all for the jury in the present case, because the evidence of each complainant could not in law corroborate the evidence of the other complainant, for the very reason that each of them was a complainant. He distinguished the evidence of each complainant, even eye witness evidence, from that of an independent eye witness to the events, whose evidence could properly corroborate that of either complainant. He secondly argued there could be no corroboration because of the allegation of collusion, and finally he argued that, even if he was wrong on that latter point, nevertheless until such time as the jury considered the evidence of each of the complainants to be such that her case on each of the charges was established beyond reasonable doubt, her evidence could not be invoked to corroborate the evidence of the other complainant. Counsel at the trial did not expressly invoke the case of DPP v. Morrissey (unreported, Court of Criminal Appeal, 10 July 1998) which was opened by counsel for the prosecution. His choice of wording, as part of the charge, was “consistency”.
It is appropriate at this stage to deal with the case of DPP v Morrissey, supra. That judgment concerned quite exceptional facts. Allegations were made that the accused had sexually abused the complainant, she being the daughter of the accused’s partner. The allegations were supported by the complainant’s mother. The accused however in turn alleged a conspiracy between the complainant and her mother to cover up the real reason for the separation of the accused and the mother, which was that the mother was, he claimed, engaged in a highly inappropriate relationship with a member of her own family. Tellingly, there were very significant discrepancies between the evidence of the complainant and the mother, and, as stated in the judgment, in significant material respects, their evidence was actually conflicting. These discrepancies led this Court to conclude that an application made during the course of the trial for a direction to acquit the defendant ought to have been acceded to. On the second issue, which concerned the adequacy of the trial judge’s charge on several major grounds, in the course of a lengthy judgment, the court stated, inter alia:
“On corroboration, the learned trial judge indicated that the evidence of the mother could be treated as corroboration of the evidence of the complainant. Whereas counsel for the defence did apparently accept such a proposition, it seems to the Court that such a charge should not be given to the jury where a case being made by the defence is that there is a conspiracy to put forward a false case. Corroboration must come from independent evidence. There mere fact that two parties in conspiracy with each other give the same evidence does not make the evidence of one, corroboration of the evidence of the other.”
The court did not however state, as it did in respect of the application to acquit, that the conviction should be set aside on the corroboration issue. It held that, having regard to the application to acquit which should have been granted, to comments in favour of the complainant made in the presence of the jury, to the inadequacy of the charge on the issue of onus of proof, to the status and effect of the bringing of a prosecution by the DPP, and to the failure to put the defence case adequately to the jury, all together justified setting aside the conviction. It is noteworthy that on the basis of the material inconsistencies in the evidence, upon which any conviction by the jury would have been found to be perverse, the Court directed that there should be no retrial.
There was no discussion as to whether corroboration was at all necessary, and clearly the statement is obiter. On the contrary, as to corroboration, what the court said was that this must come from “independent evidence”. Having regard to the very significant discrepancies and even conflicting evidence of the mother and the complainant, and to the grounds upon which the verdict was set aside, the principle that can be taken from the case is that the mere fact that two parties, who are in a conspiracy with each other, give the same evidence, cannot not make that evidence corroborative of the other. It would be both illogical, and an unduly broad legal statement to suggest, as the applicant does, that the principle to be drawn from the case is that, once collusion is alleged, corroboration can never be an issue for the jury. If that were so, it would have as its effect, that if collusion is merely alleged, and regardless of whether the allegation is meritorious or whether a jury is not at all persuaded by the evidence in support of the allegation of collusion, corroboration can never be a feature in such a case.
Given the factual matrix and the actual grounds upon which the conviction was set aside in DPP v Morrissey, supra., and including the final sentence in the above extract, the invocation of that judgment over and above the clear unanimous decision of the Supreme Court in DPP v Gilligan, supra., on corroboration, is not readily understood, although the court accepts that the statement of this Court in Morrissey, supra., if not considered in its correct context, might give the impression that the principle is extremely broad. Quite clearly this could not, in law, be correct, whereas, when properly understood, the statement in that case on corroboration is wholly unexceptional, where conspiracy is established or is as plainly evident as it was there. The court finds that corroboration cannot, as a matter of law, be ousted from a case simply because collusion is alleged.
In the present case, in contra distinction to what arose in DPP v Morrissey, supra., even though there was an allegation of collusion made by the applicant, the jury was entitled to reject it, and it clearly did. Moreover there is no suggestion of “material conflicting evidence”. Provided therefore that the jury, having rejected the allegation of collusion, was satisfied as to the credibility and independence of the evidence tendered by each of the complainants, the court cannot see why the evidence of one of them could not, in relation to the witnessed assaults to which the other was subjected, corroborate the evidence of that other complainant.
As to the extract in the written submissions relied on, from Healy, Irish Law of Evidence, 2004, counsel for the applicant argued, as did counsel at trial, that the issue of corroboration could not arise in the case of the evidence of these two complainants precisely because they were both complainants, and in that regard, the applicant in the written submissions invokes the following extract:
“Mutually corroborative evidence of sexual offences conducted in private is necessarily co-dependent evidence. It is also highly prejudicial and difficult to rebut, particularly in cases of sexual offence, proof of which tends, by its nature, to be sparse and indirect. In some cases the similarity in accounts that first justified the joinder of indictments against the accused may later prove to be the very elements giving rise to suspicion of collusion or complicity between the complainants.”
What is clear from this extract is that this type of offence is, generally speaking, or perhaps almost always, carried out in private with no witnesses. In such circumstances, the evidence of one complainant cannot normally, in fact or in law, corroborate the evidence of another complainant(s). In that context, the extract is legally correct and perfectly logical. But while that is true where the assaults have occurred totally in private, here the evidence of the complainants was of simultaneous assaults, and of assaults in the presence of one another, a wholly different scenario. In law, there is no reason why in circumstances where the offences are, exceptionally, as here, not committed in private, the eye witness evidence of one complainant cannot corroborate the evidence of the other, provided all other criteria are met, and no valid argument is made otherwise in this application.
A further argument made is to the following effect. While not accepting that there could be corroboration, because of the matters referred to in the above paragraphs, nevertheless, it was submitted, a jury could only move to the issue of corroboration once it had decided that, as to the complaints made by each individual complainant against the applicant, each charge had first been established beyond reasonable doubt. This at first glance seems an attractive and simple argument, but on analysis it does not appear to the court to be correct in law, and in its application would render corroboration impossible in a case of this nature. It would lead to the prosecution having, in effect, to “opt” for the evidence of one or other complainant as the “corroborative” evidence. No other possibility exists. If the complaints of a complainant must first be established beyond reasonable doubt before any regard could be had for the evidence of a co-complainant who witnessed the assaults and whose eye witness evidence was wholly admissible, there would be no place for corroboration in the jury’s determination of an accused’s guilt on the charges relating to those complaints. If however corroboration is part of what a jury may consider for the purposes of establishing guilt beyond reasonable doubt, as it clearly is, then, on the applicant’s argument it would only be in circumstances where the charges of assault of one of the complainants were determined without any recourse to corroborative evidence, that her evidence could then, but only then, be used to corroborate the evidence of the other. As was stated by Denham J. in Gilligan, supra., the question of corroboration is really one of common sense to be determined in the context of the entire proceedings.
It is important also to understand exactly what is meant by corroboration in this context. In DPP v Meehan [2006] 3 IR 468 this court (Kearns, J.) stated:
“As pointed out by Lord Pearson in DPP v Hestor [1973] AC 296 at 321:
The word corroboration in itself has no special legal meaning: it is connected with a Latin word “robur” and the English word “robust” and it means “strengthen”: perhaps the best synonym is “support”.”
And again in the case of DPP v Colm Murphy [2005] 2 IR 125 this court (Kearns, J.) stated:
“Before addressing this issue it is important to point out, that as a matter of law, the distinction which can properly be drawn between evidence which is in the legal sense corroborative on the one hand or merely supportive on the other arises only in a limited number of cases. In the vast majority of circumstances the distinction between corroborative and supportive evidence is of little substance. It is only in the limited category of cases where either –
(a) Corroboration is required as a matter of law, or
(b) There is established either in case law or as a matter of statute an obligation to warn a jury as to the dangers of convicting without corroboration,
that the technical requirements for evidence to qualify as being corroborative in the formal sense are relevant.”
These extracts help to place corroboration in its correct context, and make it clear that there is no legal basis upon which the eye witness evidence of one person of the assault on another person, as in the present case, provided that eye witness evidence is accepted by the jury as being credible and independent, cannot corroborate the evidence of the other complainant. It quite clearly can.
An argument is also made that corroboration of one complainant’s evidence should not be permitted in respect of the evidence of the other complainant in this case, on the basis that whereas there was an overlap in some of the charges in terms of the time span of those charges, such an overlap did not exist in the case of several other charges. This factual position is correct but the court is not satisfied that it alters the position in law. In the case of the complainant AMK there were 26 charges covering periods between January 1976 and December 1978. In the case of the other complainant, that is to say SK-MCG, there were 15 charges stretching over a longer period from mid 1974 to mid 1978. Charges 1-11 inclusive in the case of the complainant AMK, overlap with charges 33-42 inclusive, in the case of the complainant SK-McG. No reliance on corroborative evidence was placed by the prosecution in relation to any assaults in periods not covered by the above overlap or in relation to assaults which were neither simultaneous nor witnessed by the other complainant, even if within the same period. The argument therefore has no basis.
Finally, the court is satisfied that the respondent correctly states that the characterisation of the evidence in question – although direct eye witness evidence – as possible corroboration evidence had, as its effect, to confer a significantly greater protection for the accused where this would not ordinarily have been necessary, the learned trial judge charging the jury, as she did, in relation to the requirements of credibility, coherence and independence flowing from the case law. It is not necessary, in the above circumstances, to consider the preference of defence counsel for the word “consistency”, counsel in his closing speech having, in fact, drawn the attention of the jury to the absence of corroboration.
None of the arguments presented on the corroboration issue are such as to question in any way the convictions or the fairness of the trial. Leave to appeal on Grounds 1-3 of the Grounds of Appeal is refused.
The delay ground in the charge:
The court now deals with the second group of grounds, numbering seven or eight in all, which concern the alleged inadequacy of the learned trial judge’s charge in relation to the issue of delay. These are grounds 4, 5, 6 (in part), 8, 9, 10, 11 and 12. Some of the latter are as stated above, consequential grounds.
Before dealing with the individual arguments put forward in relation to these grounds it is necessary first to deal with a general aspect of these grounds upon which leave to appeal is sought. This relates to the well known difficulty arising for an applicant where no requisitions have been raised in relation to a charge, or, as in this case, a recharge, and despite this, grounds for leave to appeal are nevertheless invoked on this application.
It is useful to set out exactly what was said in requisitions on the charge and after the recharge. This was dealt with on 28th February, 2007, Day 14 of the trial. After the judge’s charge counsel for the applicant and for the respondent indicated that there were some matters arising which each wished to address. As to the issue of corroboration which was raised first, this is dealt with above. Moving on the issue of delay, senior counsel for the applicant stated:
“Briefly my Lord on delay, but then the question of the phraseology your Lordship used, talking about inferences …”
The exchanges then reverted to the issue of corroboration, and the arguments on that were responded to by counsel for the prosecution.
Counsel for the applicant then returned to the issue of delay and addressed the court on the disadvantages, from the applicant’s point of view arising from delay, concerning two items, firstly, a missing tape, and secondly, a statement of one of the complainants to the gardaí, which was no longer available. He suggested that the judge might point to these factors, within the issue of delay, to highlight what delay involved. The learned trial judge agreed to remind the jury about the statement. Counsel for the applicant then moved on to the question of inferences. Counsel for the respondent suggested to the trial court that further requisitions could be raised after the recharge, “if necessary”. The jury was recharged but not on the two above items mentioned by counsel for the applicant nor on the statement which the trial judge said she would mention. After the recharge there were no further requisitions but the following exchange took place:
Registrar: Time is now 6.03 p.m.
Mr. McCarthy: I thought you were standing up.
Judge: I was waiting for more requisitions.
Mr. McCarthy: If you wish.
Judge: Very good. … (emphasis added)
Even after this exchange, there were still no further requisitions on the recharge, from either party.
Conclusion:
It will be seen from the foregoing that although the issue of delay, which is now sought to be emphasised in very strong terms on behalf of the applicant, while mentioned in the course of requisitions on the charge, was not given much emphasis by counsel, and a review of the transcript would suggest the contrary. What is also of note is that no case law was invoked on behalf of the applicant at any time in relation to the issue of delay, and, in particular, the judge was not addressed on, and there was no mention of, the earlier judgment of this court in relation to the absence altogether from the charge to the jury of any mention of delay, at the first trial of the applicant on the same charges, and which led to the earlier convictions being set aside. While it might not have been desirable for issues in that earlier trial to have been exposed to the jury, this court would expect that both the earlier judgment of this court in DPP v E.C. (unreported, Court of Criminal Appeal 29 May 2006), and perhaps also the decision in DPP v R.B., (unreported, Court of Criminal Appeal, 12th February 2003) would be specifically brought to the attention of the learned trial judge by counsel, if delay, and how it was dealt with in the charge, was considered to be such an important feature as is now suggested in the lengthy written submissions filed, and as part of counsel’s oral submissions. The court would also have expected counsel to have addressed the learned trial judge in much greater detail, and with far greater particularity, and by reference to the above, and other, relevant case law.
In contrast, counsel for the applicant at trial argued with great particularity and at considerable length, on the issue of corroboration. The court considers it reasonable to conclude that, contrary to the situation arising in relation to corroboration, counsel for the applicant, extremely skilled in criminal law trials, did not consider, either for tactical, or defence, or for other reasons, that the issue of delay should be pressed any further than it was, and that the learned trial judge’s charge was wholly adequate in that regard. Delay was referred to by counsel in his closing address to the jury, and although that does not release the trial judge from doing so it was also referred to by the learned trial judge in the course of her charge.
The above being the position, the long established jurisprudence epitomised by DPP v Cronin [2006] 3 ILRM and the cases following it applies, unless there are exceptional reasons for permitting this ground to be considered as part of this application so as to avoid a real or substantial injustice arising. In support of this ground of appeal the applicant furnished, in the written grounds, lengthy extracts from numerous cases concerning reliance on a ground of appeal which has not been subject to any ruling or, in this case, any further requisition on the recharge. These lengthy extracts all concern the same well established point, well known to the court, namely that, exceptionally, a point not taken in the course of trial may nevertheless, in particular circumstances, be dealt with in the course of an application for leave to appeal in this court. There is, of course, an equally clear line of authority which establishes the conditions to be met, when an applicant seeks to come within the exceptions to the Cronin line of jurisprudence, which the written submissions do not refer to, and the applicant does not meet.
Counsel for the applicant accepted, in oral submissions, that no further requisition was raised on the recharge. There has been no intimation to the court as to why, if the charge was considered by counsel to be unsatisfactory on the delay point, and it was not adequately dealt with in the recharge, as claimed, no further requisitions were raised even when invited, and there is no suggestion in the transcript that the failure to do so was due to any inadvertence on the part of the highly experienced and skilled representative of the applicant, save in passing, in the oral submissions to this court, when counsel suggests it must have been an oversight. The applicant does not comply with, or come within the established case law on the exceptions to the above jurisprudence, and is, strictly speaking, not entitled to raise this ground of appeal.
Had the court been required, however, to consider this matter on the basis that there was an inadequate charge on the issue of delay the learned trial judge in her charge on this matter stated as follows:
“Now I am going to address you on the facts and I am going to come back again to the law because I want you to look at the facts in context and I am duty bound, the Superior Courts themselves have said that this is something the judge must draw to the attention of the jury, that when you are dealing with very old cases as these are, people’s memories may become frail, they make take up positions, it can be very difficult for an accused person to actually raise a defence. [Counsel] dealt at length about the difficulties that his client would have in dealing with allegations that are almost 30 years old and some of them are more than 30 years old. It’s much easier to deal with fresher allegations because you are in a position to call witnesses who were there, you are in a position to remember much more what you were doing. So when you are looking at the evidence, look at it in the context of these allegations being more than somewhat stale allegations … It seems to me that there is very little wrong with anybody’s memory on the facts that we have heard here. People were able to go into a lot of detail. Both Mr. Cooke and the two little girls who complained seemed to remember very well the layout of the house and the comings and goings, the dates of which the radio station started, who worked there etc., but you must nevertheless bear in mind the warning that I am giving you that these things have to be seen in context.”
There is no requirement in law that a charge by a trial judge must follow a particular fixed rigid or established formula of words, a matter clearly recognised in the jurisprudence, the details of which it is not necessary for the court to cite. A charge is always a matter for the trial judge, in which he or she must exercise his/her appropriate judicial function in accordance with the law, and the facts of a particular case.
The question which would arise therefore, is whether the warning concerning delay was sufficiently detailed by reference to specific difficulties for the defence in the trial in this case. In that regard, it is helpful to look at a sample range of charges and to how these have been reviewed by this Court.
In the case of DPP v C.C. (unreported, Court of Criminal Appeal, 2nd February, 2006), the charge was as follows:
“As to the timeframe … I think I harped on that repeatedly, highlighting all the contentions, the length of time ago and the frailties and the question of – I harped, I remember, on witness memories and so on, so I think the course of the charge in its entirely adequately met that too.”
On review of the adequacy of that very brief charge on the question of delay, this Court stated:
“ It goes without saying that this ruling does not address adequately the particular difficulties faced by a defendant in the applicant’s position, being as it is no more than an expression of the general difficulties which delay can bring to the capacity of witnesses to recall events of more than 30 year previously.”
Even if this court considers that the charge in the present case was not as complete or as full as the very detailed charge in the case of DPP v R.B., (unreported, Court of Criminal Appeal 12th February 2003), such extensive detail is not necessarily required, as is clear from the case of DPP v P.J. [2003] 3 IR 550, in which this Court, (McGuinness, J.) stated:
“The dangers inherent in a trial which takes place many years after the offence is alleged and the difficulties which such a trial creates for the defence, has been repeatedly stressed by this court, by the High Court and by the Supreme Court. The problems caused for the defence by delay on the part of a complainant were dealt with in great detail by Hardiman J. in his judgment in J.L. v DPP [2000] 3 IR 122. It has again and again been pointed out that trial judges are obliged to issue appropriate directions and ruling to avoid the possible prejudicial effect of delay in sexual abuse cases.”
In the same case, the court further stated (p.570):
“We fully concur with the conclusions reached by this court in The People (DPP) v R.B.. supra. It may not always be necessary for a trial judge, in charging the jury in this type of case, to go into such elaborate detail as to the effects of delay. In our view however, he or she should deal reasonably fully with the various aspects of the problems caused by delay in the making of a complaint of this nature.”
A similar approach to this latter case was taken by this court in the application for leave to appeal in respect of the earlier convictions of the applicant, in D.P.P. v E.C., supra., in which this court recognised that although the charge in D.P.P. v R.B., supra., was a good example of a delay warning, it was nevertheless not satisfied that it was “appropriate in the present case, or in every other case…”. It seems to the Court that there is a range of possible sample charges between the extremely detailed one in the D.P.P. v R.B., case and the very bare one in D.P.P. v C.C. case. A mid way point, or one closer to either extreme, may frequently be seen. Each charge should therefore be considered and reviewed in the context of the particular trial.
What can be said about the charge which the learned trial judge actually delivered in this particular case in relation to the question of delay is that she mentioned the following factors as being appropriate to be considered, namely:
1. The allegations were very old. She mentioned 30 years.
2. She considered the case to be “more than stale”.
3. An accused is in a position which is worse in the case of such an old case than where there are fresh allegations.
4. That, because of this, conducting a defence is more difficult.
5. The reason for this, as she explained, is that witnesses may no longer be available to the defence.
6. An accused in such an old case may not be in a position to recall what he was doing at the time of the allegations.
7. She explained that in such a case people may adopt positions in relation to the allegation.
8. She gave her opinion, as she was entitled to, that both the complainants and the applicant appeared to have good memories for detail.
9. She referred to all these matters as a “warning”.
She also referred in some detail to the evidence of the various witnesses and to the issues concerning delay mentioned in the closing address of counsel for the applicant. The court is satisfied that, on balance, the charge of the trial judge was adequate in the circumstances of the present case.
The two matters which counsel for the defence at trial sought to have mentioned specifically were a statement made by one of the complainants to the gardaí several years previously, and a tape which had been made an even longer time before that, in or around 1978. As to the statement, the evidence at trial was that the likelihood was that although the statement had been taken, it was disposed of immediately or almost immediately after it was taken, in a waste basket. It seems clear that even if the trial had taken place at a much earlier date, that statement would not have been available, so that its absence was not due to delay, as such. As to the tape which the trial judge did not agree to mention further, its history according to the evidence is as follows. One of the complainants had allegedly said something concerning the applicant’s behaviour towards her in or around 1978, to a girl then aged about 15, who worked at the radio station established by the applicant. She in turn mentioned this to a man called Dillon, who apparently made a tape or arranged for it to be made. Dillon and the applicant fell out over affairs at the radio station and there is no evidence as to what happened to the tape at that stage. Eventually another man, a Vincent Connell, who had also worked at the radio station, appears to have got possession of the tape, and offered to sell it to the applicant, who paid £200, a figure which he said was a large sum, but which Mr. Connell knew the radio station could well pay. The applicant had then placed the tape, together with much other equipment and tapes in one of two underground walk-in large containers on land he owned, and where it, and the other material, together with the transmitter for the radio station remained until about 2000 when the land was sold, and he was obliged to remove these underground containers. He then gave all or most of the contents or these two containers to a third person, whom he had not seen for at least six or nine months prior to this trial, although apparently he had been in contact with him up until around 2002. The applicant in evidence said that the tape was entirely innocuous. It would appear to the court in such circumstances that the tape and its availability or lack of availability was entirely within the control of the applicant, and it may be assumed also that he knew at the time the tape was given to this third party, admittedly with lots of other tapes and equipment, that it might have been useful in the course of his defence. While its absence might have been the subject of comment from the judge, as the defence earlier requested, such comment would have to be seen against the evidence of what happened to it.
In any event, it is unclear to the court that the absence of either of these items was such as to cause specific prejudice to the applicant, as accused, and no case was made at trial that they would or would likely do so. It also seems clear to the court that counsel for the applicant at trial likely recognised and accepted that position, given the absence of any requisition on the recharge. In such circumstances, the absence of a specific warning on either of them does not appear to have led to an unfair trial or to unsafe convictions.
There is moreover, another matter which satisfies the court that in any event, no injustice occurred in the present case. The issue of delay in a case such as this arises because, with very old cases, it may well be that a defendant will find it very difficult to verify by evidence, places, times, events, etc., which he/she would ordinarily, in a much newer or fresher case, be able to present as part of his defence (although the applicant, from the transcript, has a remarkable memory). This is, however, a well known and recognised problem for a defence arising in such cases, and it has been said, including in the above cases, that because of delay, there may be few or even no “island of facts” upon which a jury could, with reasonable certainty, reach its verdicts in a manner fair to a defendant. That is why, in general, a trial judge must give appropriate warnings in the case of trials which take place after a long period of time.
In the present case there are unusual factors. The first is that the
complainants gave evidence of being simultaneously assaulted by the applicant, or of being present while the other was assaulted, a quite different scenario to that which usually arises, which is that such assaults are carried out completely in private. When so carried out there is no possible corroboration, which in turn, in old cases often gives rise to a mere “swearing match” between complainant and accused.
Secondly, in the present trial, apart from corroboration, there were many islands of fact which might assist the jury in deciding which version of events was appropriate to accept. An “island of fact” is well described in the following terms:
“An island of fact contemplates a situation where in a case there is a particular factual matter which there is a dispute about. And the resolution of that factual matter doesn’t resolve the case as a whole but it may help to resolve it. It may help in deciding which version of events a jury should accept. For example if there is a case involving a teacher allegedly sexually interfering with one of his pupils, there might be an allegation that in relation to the door of classroom, it was bolted. There might be an issue in the case as to whether there was a bolt on the door at all. There might be an issue in the case as to whether the door was capable of being locked.
Now the resolution of that issue is not going to resolve whether or not there was sexual abuse in the case. But the resolution of whether or not there was a bolt on the door or whether it was capable of being locked might affect whether or not the teacher’s evidence is going to be accepted, or whether or not the child’s evidence is going to be accepted. And that has come to be known as an island of fact.”
Such “islands of fact” included, for example, evidence relating to the layout of the house, to the manner in which children accessed the house through the garage and the back garden of the house, to quantities of equipment, television sets and so forth, and telephones, in the garage itself, especially after the applicant closed his electrical shop, to the contents of the house, such as specific furniture, and several others, on which the jury was entitled to accept or reject the evidence of the complainants or of the applicant.
Apart from such islands of fact, there was additional evidence of a telling nature, closely related to the assaults as alleged, which the jury was also entitled to accept or reject. These included the following: (a) third party evidence that there were phones or a phone on a top shelf in the garage and that the applicant used to lift the children up onto the shelf, and while taking them down, would place his hands under their clothes and around their bottoms; (b) evidence of the complainants about the body odour and general lack of hygiene of the applicant, and his acceptance in evidence that he did not bathe for weeks; (c) their evidence that his beard scratched the complainants during the sexual assaults, and his acceptance in evidence that he did not shave regularly; (d) their evidence that he wore no underwear, which he denied, and the fact, established in evidence, that when arrested although fully clothed, he wore no underwear; (e) the evidence of one of the complainants who said she was not permitted into the applicant’s house prior to the opening of the radio station, except when his wife was away from the house, which he denied, and his acknowledgement that during the relevant period his wife was from time to time, usually on a six monthly basis and for a week or two, a hospital inpatient. The jury clearly accepted the version of these events as given in evidence by the complainants, and as supporting the complainant’s credibility.
In such circumstances, even if the above ground of the treatment of delay in the charge was to have been determined by this court in favour of the applicant, the court is satisfied nevertheless that the proviso in s.3(a) of the Criminal Justice Act, 1993, is wholly appropriate to apply in this case, there having being more than adequate, and indeed even ample, evidence upon which the jury was entitled to convict the applicant on all the charges, and there is no question of any miscarriage of justice.
Having regard to the above findings it is not necessary to consider the remaining grounds separately.
The application for leave to appeal is, in the above circumstances, rejected.
People (DPP) v Lindsey
, Court of Criminal Appeal, February 23, 2004
Judgment of the court delivered by Denham J. on the 23rd day of February, 2004.
1. This is an application for leave to appeal against conviction and sentence by Duane Lindsey, the applicant, and hereinafter referred to as the applicant.
2. The applicant appeared before Waterford Circuit (Criminal) Court on the 29th May, 2002, on four counts, being:
Count No.1
Statement of Offence
Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section 15 (1) of the Misuse of Drugs Act 1977 and to Article 4 (1) (b) of the Misuse of Drugs Regulations 1988 as made under Section 5 of the said Act of 1977.
Particulars of Offence
Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession the controlled drug commonly known as Ecstasy, for the purpose of unlawfully supplying the same to another.
Count No. 2
Statement of Offence
Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.
Particulars of Offence
Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his possession the controlled drug commonly known as Ecstasy.
Count No. 3
Statement of Offence
Possession of a controlled drug for the purpose of supplying the same to another, contrary to Section 15 (1) of the Misuse of Drugs Act 1977 and contrary to Article 4 (1) (b) of the Misuse of Drugs Regulations 1988 as made under Section 5 of the said Act of 1977.
Particulars of Offence
Duane Lindsey on the 27th day of November 1999 in the County of Waterford had in his possession the controlled drug amphetamine, for the purpose of unlawfully supplying the same to another.
Count No. 4
Statement of Offence
Possession of a controlled drug, contrary to Section 3 of the Misuse of Drugs Act 1977.
Particulars of Offence
Duane Lindsey on the 27th day of November 1999 in the County of Waterford had unlawfully in his possession the controlled drug amphetamine.
3. On the 30th May, 2002, he was convicted on all four counts by a majority verdict of 10 to 2.
4. The applicant was sentenced to six years imprisonment on 31st May, 2002, to run from 20th February, 2002, on Counts No. 1 and No. 3 (the two counts relating to possession of a controlled drug for sale or supply), the two other Counts (No. 2 and No. 4) were taken into consideration.
5. The applicant has applied for leave to appeal against the said conviction on the following grounds:
1. That the trial judge erred in law and in fact in failing to discharge the jury when it had become apparent that a juror had sufficient concern about his involvement in the case and had brought the fact to the attention of the court.
2. That the trial judge erred in law and in fact in failing to make sufficient enquiry into the concerns of the juror.
3. That the trial judge erred in law and in fact in holding that the defendant had been lawfully detained under section 2 of the Criminal Justice (Drug Trafficking) Act, 1996.
4. That the trial judge erred in law and in fact in finding that the first extension of the defendant’s detention was lawful.
5. That the trial judge erred in law and in fact in finding that the second extension of the defendant’s detention was lawful.
6. That the trial judge erred in law and in fact in holding that the provisions of section 2 sub-section 2 (f) (ii) had been complied with.
7. That the learned trial judge erred in law and in fact in ruling admissible the Statement of Admission (Exhibit 3) and the memorandum of interview (Exhibit 13).
8. That the trial judge erred in law and in fact in ruling that the conduct of the interviewing Gardai had been proper.
9. That the trial judge erred in law and in fact in ruling that there had been no breach of the judge’s rules.
10. That the finding of the jury, namely guilty in respect of all counts was perverse as it had been explained to them during the course of the trial that counts 3 and 4 were alternatives to counts 1 and 2. The failure of the jury to distinguish between the counts renders the conviction unsafe.
11. That the conduct of the trial was generally unsatisfactory and that, in particular, the trial judge exhibited prejudice towards the accused in particular during the course of the trial within a trial.
6. The applicant has also indicated that he wishes to appeal against the severity of
sentence. This application was adjourned by the court.
7. Written submissions were filed by counsel on behalf of the applicant and on behalf of the Director of Public Prosecutions.
8. In oral submissions Sean Gillane B.L., counsel for the applicant, indicated that his submissions would be on four bases. These were: (i) the juror; (ii) his submission of a failure to warn the jury of the absence of corroboration pursuant to s. 10 of the Criminal Procedure Act, 1993; (iii) a submission that the verdict was perverse; and (iv) a submission that the detention was illegal.
9. Decision
9.1. The Juror
The first matter for consideration is that appearing in number 1 and 2 of the grounds of appeal. At the commencement of the trial, a juror expressed concern, after the jury was empanelled and prior to the opening of the case, arising from the fact that he worked in Tramore and that he had seen the applicant.
The transcript provides the following:
“Jury empanelled.
Judge sends jury to jury room to select someone to act as foreman.
Mr. Teehan: I understand there is a problem with one of the jurors, my lord. Perhaps that difficulty should be explained to your lordship.
JURY BROUGH OUT TO COURTROOM.
Judge: Why is there a problem?
Juror: Its just that I work in Tramore.
Judge: Work in Tramore. And how is that a problem?
Juror: I don’t actually know the man but I work in Tramore, and I’ve seen the man.
Judge: I don’t see that as a problem.
Judge: And you brought that to my attention, is it? I thank you for that. I don’t see that as a problem.
Mr. Maher: I have taken instructions from my client and he does see a problem.
Judge: Your client saw the juror being called and had an opportunity of objecting but he didn’t do so.
Mr. Maher: Could I raise the matter in the absence of the jury.
JUDGE ASKED JURY TO RETIRE. JURY RETIRED AT 11.47 a.m.
Mr. Maher: Can I say, my lord, Mr. Lindsay did indeed contact Mr. Newell after the jury had been sworn to indicate that he had a difficulty with exactly the member of the jury who brought his concerns to the attention of your lordship.
Judge: Our man is concerned that he has seen your man in Tramore, no more than that.
Mr. Maher: My lord, its very difficult for a man to be asked that question.
Judge: I don’t accept that. He was asked the question, I said, is there any more than that, and he may have seen, I said or did see, he knows, to what extent can you, or how far can you take it? In other words, if you ever see a person are you excluded then from being on a jury?
Mr. Maher: I am not suggesting that my lord.
Judge: But that is the state we are at here.
Mr. Maher: Not quite, in my respectful submission, my lord, because Mr. Lindsay, it was quite clearly evident to the members of the jury when he was answering the counts, and my lord gave the clearest possible warning – it couldn’t have been clearer – and yet we find that this particular juror is sufficiently concerned enough about it to bring it to your lordship’s attention.
Judge: What do you say to that, Mr. Teehan?
Mr. Teehan: On the basis of what we have heard today, I would say in the light of what Mr. Lindsay is saying.
Judge: On the one level I have to deal with – let’s say – a person who is extremely scrupulous which I take this man to be. He tells me something and if I then go and discharge the jury am I perhaps making a mountain out of a molehill?
Mr. Maher: We don’t think so, my lord.
Mr. Teehan: There is a danger of that, my lord, of making a mountain out of a molehill.
Judge: You have to be realistic as well, you know. You cannot serve on a jury if there is a problem about somebody, but if there isn’t you should serve on the jury, and juries should not be discharged save and except in proper cases.
Mr. Maher: Well, can I say, my lord, that I was going to make this application because of my instructions, when coincidentally the juror himself …
Judge: Two completely different things. What this man said does not, in fact, give me cause for concern. You are telling me of different concerns.
Mr. Maher: I don’t you see. I don’t know exactly. But with respect I know a reply to find out exactly this gentleman’s difficulties were, but with respect my concerns are that inside the jury room as happens the chance exists to discharge this jury. The jury panel were still here.
Judge: Well, Mr. Teehan?
Mr. Teehan: I respectfully submit there is no grounds for it.
Judge: I will proceed with this jury. Perhaps we are now here we had better assemble them while we are here to find out if they have selected a foreman and if they have done that I can go over and discharge the panel and start from there. So, bring out the jury.
JURY BROUGHT BACK AT 11.52 a.m.
Judge: If I thought there was the slightest doubt about this I would definitely discharge the jury. Now, ladies and gentlemen, have you selected a foreperson.”
The applicant had the opportunity to challenge the juror prior to the swearing of the
jury, under s. 17 (4) of the Juries Act, 1976, and did not do so. Also, it is clear that the juror did not come within a category to be excused compulsorily. The issue thus relates to the exercise of the discretion of the learned trial judge. Therefore exactly what happened in court is critical to the exercise of the discretion. The exchanges have been set out fully above. The juror said that he worked in Tramore, he did not know the applicant, but he had seen him.
In this case the usual advice was given to the jury that if they knew the accused or knew anything of the case they should not serve on the jury. It was in that context that the juror spoke.
The learned trial judge had the advantage of viewing the juror when he spoke, and he could assess his demeanour. The situation appeared clear to him, even so the court canvassed the matter further with counsel. No substantial ground was raised in relation to the juror. In those circumstances the trial judge exercised his discretion. The court is satisfied that in the circumstances he did not err in not proceeding to inquire further of the juror of his concerns. In all the circumstances the court does not consider that the learned trial judge erred in not acceding to the request of counsel for a further inquiry.
The court would distinguish R. v. Thorpe, (unreported, Court of Appeal (Criminal Division), 9th October, 2000). There was no suggestion of possible intimidation of the jury in this case. Also, the court would distinguish Blackwell & Ors. [1992] 2 Cr. App. R. 625, there was no suggestion of the jury being approached, tampered with or pressurised.
This court is satisfied that in all the circumstances it should not intervene in the exercise of the discretion of the trial judge on this issue. Consequently this ground of the application fails.
9.2. Corroboration
9.2.a Submissions
It was submitted on behalf of the applicant that, having admitted the statement of the applicant into evidence, the learned trial judge failed to apply adequately the provisions of
s. 10 of the Criminal Procedure Act, 1993. It was submitted that the references by the learned trial judge in his charge to the statement were such as to virtually ignore the provisions of section 10.
Counsel on behalf of the Director of Public Prosecutions, Thomas Teehan B.L., submitted that there were three references to the statement in the charge. He submitted that while the requirements of s. 10 of the Criminal Procedure Act, 1993 must be brought to the attention of the jury that no particular form of words are required. In the context of the charge, it was submitted, the statutory requirement was met.
9.2.b Legislation
Section 10 of the Criminal Procedure Act, 1993 states:
“10.-(1) Where at a trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.
(2) It shall not be necessary for a judge to use any particular form of words under this section.”
9.2.c The Charge
The relevant portion of the charge, as recorded in the transcript, provides as follows:
“That is the standard of proof in a civil case, but as you can readily see it is below the standard required in a criminal case. You must be satisfied beyond a reasonable doubt in a criminal matter. The reasonable doubt has been described as a doubt which is not an airy fairey doubt, not a passing doubt, but something genuine, fundamental, that gives you cause to pause if you were going to do something in your life like changing your job, change of house, that sort of doubt that would stop you going one way or the other. It is something serious. It is a reasonable doubt, and you don’t get a reasonable doubt just because there are two versions. There must be balance and foundation in the doubt. Now, the accused’s right to silence, when he doesn’t give evidence, is obviously important but the State in this case are seeking to make out a case and this is very fundamental. This case rests entirely on the statement. The Gardai go out and find two substances planked in this ditch and you heard the scientist from Dublin giving evidence on these substances. There would not appear to be any controversy on these substances, so many grams of amphetamine and ecstasy. Let us say the drugs were found. What is important is did the defendant have possession or control of the drugs, and you must be satisfied on that, and you can only be satisfied on that if you believe that he made a statement and that the statement as taken down in the Garda barracks is reliable in terms of the truth, and that it is expressed in the accused’s own words. If you are not satisfied that this statement is not true there is no other evidence on which you can rely to convict the accused. The evidence of his statement and the evidence of the two Gardai in the station, it is right to be careful in all cases. You approach it, of course as a juror carefully, methodically and slowly. You don’t jump to conclusions, and it is even more right to take extra care when the only evidence is that of the State. Look at it every which way and do not convict unless you are sure that this is his own voluntary statement. Be extra careful because that is the only evidence. But if you are not satisfied that this is his statement, if you are not convinced of the detail in it is genuine, if you are convinced beyond reasonable doubt that it is he rather than the Guards who is speaking the truth then you can only go one way. The accused does not have to convince you of anything but if there is something in the case that would cause you to have a reasonable doubt you must give the benefit of that doubt to the accused.”
9.2.d Precedent
The law on corroboration was reviewed recently in People at the suit of the Director of Public Prosecutions v. P.J. [2004] 1 I.L.R.M. Although that case arose in relation to s. 7 (2) of the Criminal Law (Rape) (Amendment) Act, 1990 the court addressed the issue of corroboration generally and as such it applies equally to this case. At p. 236 McGuinness J., speaking for the court, stated:
“The trial judge was not required to use any particular form of words in giving his corroboration warning. Section 7 (2) of the Criminal Law (Rape) (Amendment) Act, 1990 provides:-
‘7 (2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.’
The necessity for a clear and emphatic warning was stressed in a number of the older cases. In The People (Attorney General) v Cradden [1955] IR 130 (Court of Criminal Appeal) Maguire C.J. stated at p. 141:
‘In our opinion, therefore, however it be phrased, the warning to be given should convey to a jury in unmistakable terms the danger of acting upon the unconfirmed testimony of a prosecutrix if that testimony stands alone.’
In The People (Attorney General) v Williams [1940] IR 195 (Supreme Court) at p. 240 Sullivan C.J. held that:
‘… in all cases in which there is no corroboration of the girl’s evidence the attention of the jury should be directed to that fact, and they should be told that they should weigh her evidence with great care before they decide to convict.’
The warning is no longer mandatory and much of the general tenor of the judgments in these older cases would not readily be acceptable today, but once a trial judge has elected to give a warning it seems to us that the necessity remains for that warning to be clear and unmistakable.
In giving the warning the judge should also explain the meaning of corroboration. Corroboration was explained by Lord Reading C.J. in R. v. Baskerville [1916] 2 KB 658 as follows at p. 667:-
‘We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.’
In The People (Attorney General) v Travers [1956] IR 110 Maguire J. stated (at p. 114):
‘In this connection the judge should explain to the jury what is meant by corroboration, namely, ‘independent evidence of material circumstances tending to implicate the accused in the commission of the crime with which he was charged’ (per Sullivan C.J. in Attorney General v. Williams) [1940] IR 195 at p. 200). I do not propose to elaborate on this rule which has been explained and adopted by Maguire C.J. in The State (Attorney General) v. Moore [1950] Ir. Jur. Rep. 45.’
Again, these are pre-1990 cases but where in the context of the present law a discretionary warning is given, it is still in our view necessary for the meaning of corroboration to be made clear to the jury.
The wording used by the trial judge in the instant case was not calculated to convey any clear message to the jury. No proper effort was made to define what in law is meant by corroboration, nor was it explained in detail how a lack of corroboration might affect the jury’s view of the evidence.”
The court would adopt and apply the law as stated in the above judgment. Although no particular form of words is required of the learned trial judge by s. 10 of the Criminal Procedure Act, 1998, the court should apply the established law.
In cases such as this (i) the trial judge is not required to use any particular form of words in giving a corroboration warning; (ii) the warning should be clear; (iii) the court should bring to the attention of the jury the absence of corroboration; (iv) the meaning of corroboration should be explained to the jury; (v) the jury should be advised that they should have due regard to the absence of corroboration; (vi) in general, the court should approach the manner so as to indicate to the jury that the law describes a requirement of care and caution by such a jury.
If there is only one piece of evidence against a person it is appropriate to refer to this fact. The learned trial judge did so in this case. In addition, s. 10 of the Criminal Procedure Act, 1993 brings in a special rule where the one piece of evidence is a confession. In such a situation the meaning of corroboration should be explained to the jury. This was not done by the learned trial judge in this case. Nor was it explained how a lack of corroboration might effect a jury’s view of the evidence.
There is a mandatory requirement under legislation which is applicable to this case. The court is satisfied that this was not done. Consequently, this ground of the application should succeed.
9.3. Other Grounds
As the above ground should succeed there is no necessity to consider the other grounds raised by the applicant.
10. Conclusion
Treating the application for leave to appeal as the hearing of the appeal, the court would grant the appeal on the above stated ground and would order a retrial.