Retrials and Miscarriages
Cases
DPP v JG (No.2)
[2018] IECA 168
JUDGMENT of the Court delivered on the 8th day of June 2018 by Mr. Justice Mahon
1. This judgment relates to the application by the respondent for a re-trial in circumstances where this court, in its judgment of the 23rd February 2018, allowed the appellant’s appeal against conviction. The background facts are set out in detail in that judgment and it is unnecessary to repeat them again. The conviction of the appellant following an unanimous jury verdict at the Central Criminal Court on the 8th July 2015 was in respect of fourteen offences, one of indecent assault, eight of sexual assault and five of rape. The appellant was sentenced on the 9th October 2015 to thirteen years imprisonment with the final five years suspended on certain conditions. To date the appellant has served a period in custody approximately equating to a prison sentence of three years and six months (with normal remission), or almost half the sentence originally imposed. The offences were committed between September 1990 and July 1994 when the complainant was aged between four and eight years old, and the appellant was in his early fifties. The first complaint made by the complainant to gardaí was in July 2010, when he was twenty four years old and some sixteen years after the last offence was committed. An unusual feature in the case was the fact that the appellant had pleaded guilty to sexually assaulting the complainant’s two sisters in 1994. He pleaded guilty in respect of those offences and was sentenced in January 1995, and released from prison in May 1997.
2. The trial, which concluded on the 8th July 2015, was the appellant’s second trial for these offences. His first trial, also in the Central Criminal Court, took place in November 2013 and concluded with a jury disagreement.
3. The respondent maintains that a re-trial is appropriate and in the public interest. Her counsel, Ms. Gearty SC has submitted that a number of factors support her contention that there should be a re-trial including:-
(i) the seriousness of the offences;
(ii) the right of the complainant to see justice done;
(iii) the lack of any material prejudice to the appellant;
(iv) the lack of any significant lapse of time since the last trial, and since the conclusion of the successful appeal against conviction;
(v) the lack of the risk of an unfair trial, and that
(vi) there has been no unconscionable or unreasonable delay in a complaint being made to the gardaí.
4. For his part, Mr. McGuinness SC on behalf of the appellant emphasised the fact that a re-trial would mean a third trial for the appellant within a period of five or six years. He submitted that there had been significant delay in the making of a complaint by the complainant and in the matter coming to court, although no blame could be attributed to any party for such delay. He pointed to the fact that that the first offence occurred almost twenty eight years ago, with the last offence occurring almost twenty four years ago. Complaints were made to the gardaí sixteen years after the last complaint. Mr. McGuinness also submitted that the appellant was, at seventy four years, elderly and has very serious health issues. With a likely delay of eighteen months for a re-trial to take place the appellant would be seventy six years old at the time of what would then be his third trial for the same offences. He also pointed to the fact that the appellant had effectively already served almost half the original sentence imposed on the 9th October 2015. He was also publicly named at the time of his original conviction and has been shamed in his own community.
Section 4(1)
5. Section 4(1) provides for re-trials. It states:-
“where a person is ordered under this Act to be re-tried for an offence he may, notwithstanding any rule of law, be again indicted and tried, and if found guilty, sentenced for that offence”.
6. This court has a discretion as to whether or not to order a re-trial. It exercises that discretion having regard to all the circumstances in any particular case. Included in the factors which the court will consider in particular cases will be the extent to which the deficiency which occurred in the previous trial leading to the verdict being quashed on appeal is capable of being corrected in a new trial, the age and health of the appellant, the nature of the offences, the length of time since the offences were committed and the number of previous trials which have occurred in relation to the same matter. In his book The Criminal Process Professor Tom O’Malley states (at pp 939-940):-
“…Factors which may influence the court in deciding whether to order a re-trial include the number of times the person has already been tried, the sentence originally imposed and the amount of that sentence already served and perhaps, the length of time since the offence was allegedly committed. In relation to the last mentioned factor, regard should be had to the prejudice, if any, the accused may suffer because of the absence of evidence, the death or unavailability of witnesses or similar matters.
7. In DPP v. Hayes and O’Leary [2014] IECCA 5, the Court of Criminal Appeal in a judgment delivered by Clarke J. (as he then was) said the following on the issue of delay emphasising that different considerations may be relevant on that subject in relation to an application for a re-trial as against an application to prohibit a trial. He said:-
“It follows that this is not a case where any material or significant blame can attach to either the prosecuting authorities or the courts system concerning lapse of time. It should be said that this Court is of the view that lapse of time, insofar as it may be a factor in determining whether it is in the interests of justice to direct a retrial, should not necessarily be considered in quite the same way as delay in the context of an application to prohibit a trial. It may be that lapse of time, in the circumstances (including any established prejudice) of a particular case, can properly be taken into account in the balance as to whether a retrial should be directed even where the lapse of time and other circumstances concerned could not justify the prohibition of the trial. It should be emphasised that prejudice will always be an important factor and that a level of prejudice which might fall short of that which could justify prohibition may nonetheless be a weighty factor in considering where the balance of justice lies when considering whether to direct a retrial. Clearly if, in all the circumstances, lapse of time and the circumstances giving rise to it, were such as would justify the prohibition of a trial, then a retrial could not be directed.”
8. The reason for this court’s decision to allow the appellant’s appeal in relation to his second trial on these offences concerned the introduction into evidence in the course of trial of the fact and detail of the appellant’s admitted sexual abuse of the complainant’s sisters in the early to mid 1990s. A re-trial of the appellant absent that evidence would, while not necessarily fatally undermining the prosecution case, would nevertheless significantly weaken it. This fact, while it does not in any way exclude the possibility of a fair re-trial of the appellant, is nonetheless a material factor for consideration.
9. The factors which primarily concern the court and which, in its view, militate against a re-trial are the age and poor state of health of the appellant, the fact that the undoubtedly serious offences were committed a long time ago and that a re-trial would be the third trial of the appellant for the same offences and that the first of these trials ended in a jury disagreement, and the fact that a lengthy period in prison has already been served.
10. For these reasons in particular, the court will refuse the application for a re-trial.
Ryan v Director of Public Prosecutions
[1989] ILRM 466 Barron J
The applicant was put on trial in the Circuit Criminal Court on charges of rape and other offences. His trial commenced on 18 November 1987 and continued for three days. In the course of the trial, the trial judge was required to rule inter alia on the admissibility of certain verbal statements and a written statement made by the accused. He ruled each of these statements to be inadmissible. After the jury had retired to consider its verdict, it was discovered that the written statement which had been ruled inadmissible had been given to the jury together with other exhibits. As a result the jury was discharged. The matter was re-entered to fix a date for a retrial. This was fixed on 27 November 1987 for hearing on 7 June 1988.
The present application is to restrain the Director of Public Prosecutions (DPP) on the retrial from seeking to have these statements admitted in evidence. The grounds upon which relief is sought are set out as:
(a) The clearly identifiable issue and justiciable controversies between the same parties having been determined in the first trial in a final manner by a court of competent jurisdiction:
(b) It would be an unfair procedure to deprive the applicant of the advantages which he had secured in the first trial at a stage before it became flawed through no fault of his.
In effect the applicant’s case is that since the matter went to the jury on the first trial without these statements, it should similarly go to the jury on the retrial without the same statements. This submission is not put upon the basis of estoppel, but upon the ground that it would be an abuse of the process of the court to permit a second adjudication upon the admissibility of these statements.
Counsel for the applicant relies upon the decision in State (O’Callaghan) v O’hUadhaigh [1977] IR 42. In this case, an accused, who was in custody, was sent forward for trial from the Circuit Court to the Central Criminal Court upon an indictment containing one count. The State then preferred an indictment containing eight counts and later a third indictment which contained the same eight counts together with two further counts. The accused objected to being tried on the latter two indictments and after legal argument the trial judge held in his favour. Not being prepared to continue on the single count indictment, the State entered a nolle prosequi on each of the counts on all three indictments. It indicated at the same time that the accused would be re-charged with the same offences. When this was done, an absolute order of prohibition was granted to the accused to prevent the State from proceeding. It was held that the procedures adopted by the State were designed solely to overcome the decision of the original trial judge and that it would be wrong to permit such a course to be adopted. Finlay P as he then was, said at page 53:
If the contention of the respondent is correct the prosecutor, having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise then by appeal from the Central Criminal Court, or by appeal or review in the case of an inferior court.
Reliance was placed also upon the decision of O’Hanlon J in Kelly v Ireland [1986] ILRM 318. In that case, the plaintiff had been convicted of several offences in relation to a train robbery. In the course of his trial he had alleged that he was assaulted and ill-treated by members of the Gardai while detained for questioning. He now sought to re-open these allegations in a civil action for damages for assault. His pleading was struck out upon the grounds both of estoppel and as being an abuse of the process of the court.
The present application seeks to treat the various aspects of a trial as being severable. In my view, this is something which cannot be done. A trial whether before a judge alone, or before a judge and jury, is under the control of that judge. It is not for some other judicial authority to tell him how to conduct his court and the proceedings before him. The expression ‘abuse of the process of the court’ is one which refers to a contamination of the entire proceedings. In the two cases relied upon the objection is to the fundamental basis upon which the proceedings are brought. No such objection is laid in the present case. The grounds for relief follow the passage which I have cited from the judgment of Finlay P, as he then was, in O’Callaghan’s case. The applicant is concerned solely with advantage. That is not the test. Justice must be done and must be seen to be done. Where proceedings are commenced which violate this principle, then they are an abuse of the process of the court.
In the present instance, it cannot be said that to tender in evidence the statements which were ruled inadmissible at the first trial would be an abuse of the process of the court. Of course, if the retrial had been engineered for the purposes of overcoming the adverse ruling, the position would be as in O’Callaghan’s case. Here the situation arises through the fault of neither party. Retrials occur for a variety of reasons. If the proposition for which the applicant contends is correct, then an accused would in the appropriate case be unable to contend that a statement admitted at the first trial should be excluded, a witness not available at the first trial might have to be excluded at the second, and so on. This is not correct.
No objection is taken in the present application to the jurisdiction of the Circuit Criminal Court to retry the applicant. That in itself is an absolute bar to the issue of an order of prohibition. There is no jurisdiction in this Court whether by way of judicial review or otherwise to make rulings in advance upon matters which may or may not arise in a trial before another tribunal. Such rulings form no part of the supervisory jurisdiction of this Court. If the prosecution seek to introduce the particular statements in evidence, it is solely a matter for the trial judge, having regard to the course of the trial before him and the submissions made by either party, to rule upon the admissibility of such statements.
The relief sought is refused.
DPP -v- Feichín Hannon
[2009] IECCA 43 (27 April 2009)
Court of Criminal Appeal Record Number: 228/08
Date of Delivery: 27 April 2009
Court: Court of Criminal Appeal
Composition of Court: Hardiman J., Herbert J., Mac Menamin J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Judgments by
Result
Hardiman J.
Other (see notes)
Notes on Memo: Applicant entitled to certificate pursuant to Section 9 Criminal Procedure Act
1993
THE COURT OF CRIMINAL APPEAL
Hardiman J. 228/08
Herbert J.
MacMenamin J.
Between:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent
and
FEICHÍN HANNON
Defendant/Appellant
JUDGMENT of the Court delivered on the 27th April, 2009 by Mr. Justice Hardiman.
This is a most alarming and disturbing case. The applicant, Mr. Hannon, who it is now accepted is an entirely innocent man, was despite this all important fact convicted of the offences of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990l; and of common assault of the same person on the same date, the 27th January, 1997. The alleged victim of these offences (neither of which ever took place at all) was one Una Hardester then of Aughrismore, Cleggan, Co. Galway, born on the 1st October, 1986 now twenty-two years old. At the time of the assault which she alleged, she was approximately ten years and approximately four months old. The applicant, Mr. Hannon, was born on the 14th August, 1975 and was accordingly some twenty-two years old at the time of the alleged assaults. He is now about thirty-four years of age. There was a history of animosity between the families of the complainant and of the present applicant. This related to disputes about land, rights of way and similar matters, not uncommonly found in country districts. This led to a number of confrontations. Some short time (a matter of days), before the alleged assault, the complainant had been present in court when her father, one Crofton Hardester, had been convicted of assaulting the applicant’s father. The Hardester family had arrived form the United States to live in the area some years before.
The complainant’s allegation of sexual assault and common assault was made in detailed terms. It was conspicuous for its graphic and coherent language and for the correct use of various medical/anatomical terms. After the alleged assault the complainant had arrived, in a muddy and dishevelled state, at the nearby house of a friend and had convinced that friend, a child herself, and her mother, that something untoward had occurred. Despite the absence of any medically significantly injury she seemed to have convinced a nurse and doctor by whom she was seen that she had been assaulted. The present applicant was arrested and questioned at some considerable length about her allegations during which process various gardaí had suggested to him that it was incredible that a young child could make up allegations of this sort: they simply did not believe it could happen. There is no evidence other than that the complainant invented this story on her own.
The applicant was charged with the offences mentioned. The court has seen the Transcripts of his Trial and no criticism can be made of the conduct of his defence, which was competent and resourceful throughout. The applicant himself constantly denied the allegations and when questioned by the gardaí, did not make any admission of guilt. The trial was entirely properly conducted by the learned trial judge (His Honour Judge Carroll Moran) but the alarming and disturbing fact is that, notwithstanding being entirely innocent, the defendant was convicted of these offences by a jury.
Very fortunately, the learned trial judge dealt with the case by a four year suspended sentence. He did this principally in light of evidence from Una Hardester’s father, in which the hope was expressed that better relations might prevail in the future, and the judge’s view that the applicant was not predisposed to be a criminal and had perhaps been unfortunately influenced by the family feud that had gone on.
It may be worth saying, though it will of course be obvious to legal readers, that once the jury had convicted the applicant, the learned trial judge was bound by that decision and had to proceed to sentence accordingly.
How the truth came out.
This case is unlike any miscarriage of justice application we are aware of in that the defence made no complaint whatever about the conduct of the investigation or the trial. The applicant did not lodge an appeal: since the trial had turned entirely on questions of credibility, and since there was no complaint to be made about the conduct of the trial, there was little or no prospect of success on an appeal. This, indeed, was conceded by counsel for the Director of Public Prosecutions on the hearing of this application, and very properly so. The applicant simply absorbed what had happened and tried to get on with his life. He moved abroad for a period and then took up residence in Galway City, about fifty miles from his home. He is entitled now to have his good name restored.
The complainant confesses.
About nine years after the alleged offence, in November/December 2006, the complainant, now an adult, and resident in America, arrived back to the Aughrismore area for the purpose of retracting her allegations. She told her own mother that she had made up the allegations against Mr. Hannon. She met Mr. Hannon’s sister by chance at a Filling Station in Clifden and told her the same. She made a number of statements to the gardaí. In all of them she confessed to having wholly invented a completely false allegation against Mr. Hannon:
“… I wish to state that my evidence was false as was my complaint in its entirety. Feichín Hannon never assaulted me. I have never spoken to him. We never had any contact because of the trouble between the families. I wish also to add that I was never coerced to make the complaint, never coached, and never encouraged by anyone. I am the only party at fault. I now wish to tell the truth about this matter. I wish to right the wrong that [I] have done to Feichín Hannon insofar as I can. I am twenty years old now, and I have lived with my cancerous guilt every day for the last ten years. It has been present at every moment. It has eaten away at me. Every happy event, every accomplishment, every friendship and every love affair has been stolen. My entire life since I left Ireland has been stolen. I know how awfully wrong what I did was, and I am deeply, deeply remorseful, more than anyone will ever understand. I know that Feichín Hannon has lived with the shadow of his conviction over his life for many years now, and I can only imagine the rage, the injustice, the pain and the shame he must have felt. I want to see justice done now. I wish there was some way I could apologise to Feichín Hannon and his family and tell them how much I regret what I did. I also wish there was some way to apologise to the State and its employees for wasting their time and money.
… I would like to end this statement by saying I have changed, and I have lived the cleanest life I could in the years since I left Ireland. I would like to say that I found God, and I am attempting to pay back my moral debt to society through good deeds. But all of that would be a cop out. I did something terribly wrong and I got away with it. Other people paid a heavy price, Feichín Hannon most of all. I want to clear his name now. That is all.”
In relation to her motivation for her doing such a wicked thing as to make a false allegation of sexual assault she said:
“I had no reason for making the allegation against Feichín, just that he was one of the Hannons.”
This application, as will be seen, is mostly concerned with a technical point raised by the Director of Public Prosecutions which, he says, prevent the events summarised above from constituting a miscarriage of justice. Accordingly, a significant part of the judgment will be technical in nature. The court wishes to emphasise that this fact does not mean that it is unimpressed at the wickedness or gravity of what was done. The applicant here was falsely and maliciously accused of the offence of sexual assault which is an offence involving the risk of a substantial prison sentence and the certainty of substantial social opprobrium and stigmatisation. It is a grave disgrace to the convicted person himself and, unfortunately, to his family and would exclude him from many forms of respectable employment.
The complainant, Una Hardester, also made the statement “I have never been able to understand why he did not appeal”. As explained above, however, having regard to the nature of the case it is utterly improbable that an appeal could have succeeded. Indeed, on the facts as known to this court, no competent lawyer would advise an appeal and to do so would simply be holding out false hopes. An Appeal Court cannot simply substitute its own view of the facts for that of that jury which heard and saw the witnesses.
The present application.
Having considered the complainant’s withdrawal of her statement and confession to having lied, the Director of Public Prosecutions very properly did not object to the applicant’s application, late though it was, to bring an appeal against his conviction in these changed circumstances. This application was made on the basis of Ms. Hardester’s retraction. The applicant also applied for the court to certify:
“that a newly discovered fact – to wit that the complainant’s evidence at trial was untrue and fabricated in its entirety – shows that there has been a miscarriage of justice in this case.”
This application, unlike the application to quash the conviction, is opposed by the Director of Public Prosecutions.
The present application.
The present application is brought under s.9 of the Criminal Procedure Act, 1993 which provides as follows:
“Compensation 9.- (1) Where a person has been convicted of an
for offence and either-
miscarriage of
justice.
(a)(i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and
(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice.
or
(b)(i) he has been pardoned as a result of a petition under section 7, and
(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice.
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.
(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Minister for Justice.
(4) The compensation shall be of such amount as may be determined by the Minister for Justice.
(5) Any person who is dissatisfied with the amount of compensation determined by the Minister may apply to the High Court to determine the amount which the Minister shall pay under this section and the award of the High Court shall be final.
(6) In subsection (1) “newly-discovered fact” means-
(a) where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and
(b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during his trial.”
It is apparent from the foregoing that the exercise of a jurisdiction vitally depends on the court being satisfied that a newly discovered fact shows that there has been a miscarriage of justice. Although the phrase “newly discovered fact” is defined in subsection (6) of s.9, neither in that Section nor in s.1, the interpretation Section, is the phrase “miscarriage of justice” defined.
On the hearing of this application it was stated by counsel for the applicant and agreed by counsel for the Director of Public Prosecutions that the applicant was innocent in fact of the charges brought against him and was convicted despite being innocent.
The entire issue argued on the hearing of this appeal was as to whether the state of facts described in the last paragraph constituted a “miscarriage of justice”. Mr. Hugh Hartnett S.C. for the applicant contended that the conviction of an innocent person was the very essence of a miscarriage of justice and was able to refer to recent Irish authority in support of that proposition. Mr. Garnet Orange, who argued the Director’s case with notable good sense and ingenuity, submitted that what occurred in this case was extremely unfortunate and disturbing but was not a “miscarriage of justice” because there could be no miscarriage of justice without there being fault on the part either of the prosecutor or of the garda investigators or other State agents.
The applicant’s arguments.
Mr. Hartnett S.C. pointed out that the applicant’s innocence in fact was conceded by the respondents. This, he said, was a feature which distinguished the case from any of the other miscarriage of justice cases. He conceded that there was no definition of “miscarriage of justice” in the statute but he submitted that, on the cases, a concept of “miscarriage of justice” included, as its most obvious meaning, a conviction of an innocent person.
The chief authority relied on was DPP v. Peter Pringle (No. 2) [1997] 2IR 225. This was an application under the same Section, brought after the Court of Criminal Appeal had set aside a conviction on the basis that a newly discovered fact showed that the conviction was unsafe and unsatisfactory. But the court did not find that the applicant had been improperly convicted. Giving the judgment of this court, O’Flaherty J. said:
“It is clear that the pertinent legislation envisages that it is not in every case where a conviction is quashed that a certificate should issue from this court. That is to preserve the consistency of the two methods by which convictions may be quashed, viz. under the old but still existing legislation where for example there was a misdirection by the trial judge in his charge to the jury as well as to the procedure provided by s.2 of the Act of 1993.
Where it is established that the applicant was innocent of any involvement in the crime alleged that would provide ample justification for a granting of a certificate. Further, for example, if in a given case the courts were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.” (Emphasis added)
The case was appealed to the Supreme Court on a certificate pursuant to s.29 of the Courts of Justice Act, 1924. Giving the principal judgment, concurred in by Denham, Barrington, and Murphy JJ., Blayney J. said:
“I agree with the reasoning on the basis on which the Court of Criminal Appeal reached its decision. The court did not attempt an exhaustive definition of the term ‘miscarriage of justice’ and in my view this court should not attempt such a definition either. It is sufficient to show that the term cannot be applied to the facts of this case…”.
But Lynch J., who delivered a separate concurring judgment had this to say, at p.245 of the report:
“This brings me to my third question above that is to say, what is the meaning of the phrase ‘miscarriage of justice’ as used in the Act of 1993? The Act of 1993 does not define the term. Council for the applicant referred this court to a number of Australian cases. However it is apparent from a reading of these cases that they turn on the particular wording of the Australian ‘common criminal appeal provisions’… they are of no assistance in considering the question whether or not a certificate should be granted pursuant to s.9 on the ground that a newly discovered fact shows there has been a miscarriage of justice such as to entitle the applicant to compensation…
The primary meaning of miscarriage of justice in s.9 of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted…” (Emphasis added)
In the present case, of course, the applicant is beyond doubt innocent. In the view of the Court of Criminal Appeal in Pringle that fact in itself is “ample justification for the granting of a certificate”.
In the Supreme Court, Lynch J. was clearly also of that view, and went somewhat further in that he held that this state of having been convicted despite being innocent is “the primary meaning of ‘miscarriage of justice’ in s.9”. The other four members of the Supreme Court expressed no view on the meaning of the phrase since they did not consider that it was necessary to do so in order to resolve the issues in Pringle’s case.
Dictionary meaning.
On consulting the shorter Oxford English Dictionary the first thing that strikes one is that the word “miscarriage” is said now to be rare (and indeed archaic). It is seldom used now except in the phrase “miscarriage of justice”. It was formerly used to convey a variety of meanings including misdemeanour or misdeed, mismanagement or failure of an enterprise, a blunder or as well as in the medical/obstetrical sense.
See R. (Smeaton) v. Secretary of State for Health (QBD), The Times May 2, 2002.
The older, but now largely abandoned meanings of the word “miscarriage” are very well illustrated in s.2 of the Statute of Frauds(Ireland) 1695, 7 William III Cap 12:
“To charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person…”.
This form of words describes a contract of guarantee. It does not seem to require any fault or malice on the part of the defaulting party but simply a default in fact.
The phrase “miscarriage of justice” is defined as “a failure of the judicial system to attain the ends of justice”.
Mr. Hartnett further cited the case of DPP v. Wall and McCabe at pp3-4 to the following effect, per Kearns J:-
“From an examination of the jurisprudence the applicable legal tests appear to be as follows: …
(4) Examples of circumstances which may constitute a miscarriage of justice include, but are not limited to the following –
(a) Where it is established that the applicant was innocent of the crime alleged…”.
_____________________________
For the respondent, Mr. Orange made the point that the Director of Public Prosecutions had certain obligations where he believed there was a prima facie case. The Director, he submitted, can consider the credibility of the witnesses but need not go so far as to warrant their truthfulness in deciding to commence a prosecution based on their testimony. He pointed out that in Wall and McCabe there were failures on the part of the State which caused or contributed to the conviction, thus a strong element of State “culpability”. He said that in all of the reported miscarriage of justice cases culpability was a feature, not necessarily in the sense of a morally evil act or omission but in the sense of some shortcoming by the guards or the Director. There was none here. He submitted that culpability was a necessary component of a “miscarriage of justice”. He invited the court not to put an undue fetter on the Director’s prosecutorial discretion, and said there was no case where a miscarriage had been found without culpability. He invited the court to consider the possibility of two people getting together, one to give false evidence against the other to share the compensation. He agreed there was no actual case of this happening and, of course, each person would have to be prepared to go to jail.
Mr. Hartnett also drew the court’s attention to two English cases and to certain provisions of the Human Rights Act, 2003, and another International Instrument, the International Covenant on Civil and Political Rights.
The first of the English cases was Mullen v. Home Secretary [2004] 3 AER 65. Mr. Mullen had been convicted after trial in the United Kingdom of conspiracy to cause explosions. He was sentenced to thirty years imprisonment. After he had been in jail for ten years the Court of Criminal Appeal quashed his conviction on a late appeal on the basis that his deportation from Zimbabwe to the U.K. to stand trial had involved a rather gross abuse of process. At no stage during the appeal did Mullen claim that he was innocent of the offence of which he had been convicted but he subsequently applied for compensation under s.133 of the Criminal Justice Act, 1988, a provision similar to our s.9. Compensation was refused and this decision was eventually upheld by the House of Lords. But the Lords (who reversed the Court of Appeal) were far from unanimous on the basis of their decision. The majority view, which represents the ratio decidendi of the case, is expressed in the speech of Lord Bingham. In his view the case could be disposed of on the basis that s.133 only envisaged compensation where there had been a failure in the trial process. In this case there was none, as the abuse of process predated the trial. Lord Steyn, however, in a full and careful analysis of the background to the statutory provision, was categorical in concluding that the words ‘a miscarriage of justice’ in its statutory context denoted that factual innocence was a prerequisite to an entitlement to compensation. Lord Bingham made it clear that he did not necessarily share this view.
Lord Steyn, in his speech in the House of Lords, pointed out that the English legislation of 1998 was intended to give effect to the international obligations of the United Kingdom. Ireland has also undertaken these obligations. They arise, firstly, under the International Covenant on Civil and Political rights (ICCPR) which was adopted by the General Assembly of the United Nations on December 16th, 1966. Almost ten years later, on the 20th August, 1976 the required number of ratifications was attained at the United Nations and the Covenant entered into force. Ireland signed in 1973, but the Covenant did not come into force in the State until December, 1989. Article 14(6) of this Covenant contains two relevant provisions, namely:
“(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
…
(6) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”.
The effect of this instrument is obviously a very significant one: it obliges States bound by it to provide compensation for a miscarriage of justice “according to law”. There can be no doubt, especially when the similarity in wording is considered, that s.9 of the Act of 1993, like s.133 of the English Criminal Justice Act, 1988, is an attempt to comply with the relevant State obligations arising under this Covenant and perhaps otherwise.
This provision of the Covenant bound many other countries as well. It is instructive to look to the French text of Article 14(6) already quoted in English:
(3) “Lorsqu’une condemnation pénale définitive est ultérieurement annulée, ou lorscque la grâce est accordée, parce qu’un fait nouveau ou nouvellement révélé prouve qu’il s’est produit une erreur judiciaire, la personne qui a subi une peine a raison de cette condemnation sera indemnisée, conformément à la loi, à moins qu’il ne soit prouvé que la non-révélation en temps utile du fait inconnu lui est imputable en tout ou partie.”
This was given effect to in France by Article 626 of the Code de Procédure Pénal which provides:
“Sans préjudice des dispositions des deuxième et troisième alinéas de l’article. L.781-1 du code de l’organisation judiciaire, un condamné reconnu innocent en application du présent titre a droit à réparation intégrale du préjudice matériel et moral que lui a causé la condemnation. Toutefois, aucune réparation n’est due lorsque la personne a été condamnée pur des faits dont elle s’est librement et volontairement accusée ou laissé accuser à tort en vue de faire échapper l’auteur des faits aux poursuites”. (Emphasis added)
At paragraph 47 of the judgment of the report in Mullen, Lord Steyn comments:
“From the words “reconnu innocent” in Article 626, it is clear that in France the obligation in Article 14(6) was narrowly construed by the legislature viz. as extending only to a miscarriage in the sense of the conviction of an innocent person.”
I consider that the words “reconnu innocent” might be rendered in English as “[a person] recognised to be innocent”. That phrase is apt to describe Mr. Hannon’s current condition.
At paragraph 48 of the report Lord Steyn continued:
“This is the view which I would expect to prevail if the European Court of Human Rights is called upon to interpret Article 3 of the 7th Protocol [as to which seen below]. When that happens the European Court of Human Rights will have before it the explanatory report prepared by the 21 members steering committee for human rights appointed by the Council of Europe. It accompanied the 7th Protocol when it was published. The Committee of Ministers emphasised in September 1984 ‘the importance of the explanatory report for the purpose of interpreting the protocol’. In paragraph 25 the steering committee observed about Article 3: ‘The intention is that State should be obliged to compensate persons only in clear cases of miscarriages of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The Article is not intended to give a right to compensation where all the preconditions are not satisfied, for example where an appellate court has quashed the conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”
The European Convention on Human Rights.
In further argument, counsel referred to the European Convention on Human Rights Act, 2003. He referred first to s.2(1):
“In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the Rules of Law relating such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
This Section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
Mr. Hartnett also referred to s.1 of the same Act which defined the phrase “convention provisions” as meaning:
“… Articles 2 – 14 of the Convention and the following protocols thereto as construed in accordance with Article 16 – 18 of the Convention …
(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd November, 1984.”
This Protocol forms the 5th Schedule to the Act. It provides at Article 3 as follows:
Article 3
Compensation for wrongful conviction
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
The similarity in language between this Article of the 7th Protocol, the paragraphs of the Covenant quoted above and s.9 of the Irish Statute also quoted above, will be noticed.
Ireland became party to the Convention in 1953, and to the 7th Protocol on August 3, 2001.
Conclusion.
Mr. Hartnett also referred the court to other materials which however do not appear to add substantially to those already referred to. These include a second English Case, R (Murphy) v. The Secretary of State for the Home Department [Neutral Citation: 2005/EUHC 140 (Admin)].
It is necessary to point out that the issue in this case is a very narrow one viz. whether a convicted person who is now recognised to have been at all times innocent of the charges against him, by virtue of that fact alone, entitled to a certificate under s.9 of the Act of 1993. This is not to be confused with the cognate but quite separate question as to whether only a person whose innocence is recognised or uncontrovertible is entitled to such a certificate, although no doubt this question will arise at no very remote date.
It appears to the court in light of the material cited that Lynch J. was entirely correct in what he said in the passage cited earlier in his judgment:
“The primary meaning of ‘miscarriage of justice’ in s.9 of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted…”.
The wording of the International Instruments which bind Ireland appear, at a minimum, to require compensation of a person who is “reconnu innocent”, and that phrase is of course helpful in the construction of those Articles. The Instruments do not contain the additional requirement that the State or its agents must be in some way culpable. For the State or the Court to add this requirement would appear to prevent s.9 from complying with the State’s international obligation in full.
While the English and International materials were extremely helpful, that is not to say that the court would have come to a different conclusion in their absence. Indeed, it is difficult to know what is more obviously within the ordinary or dictionary meaning of the phrase “miscarriage of justice” than the conviction of an innocent person.
It is equally difficult to know how a person could more clearly and obviously be in the position where a new or newly discovered fact “shows conclusively that there has been a miscarriage of justice”, to quote the Covenant language, that a person whose accuser has, almost a decade after the event, confessed that her allegation was wholly false and contrived. However these observations may be obiter on the present facts.
The court accordingly considers that the applicant is entitled to a certificate since a fact which is both new and newly discovered – the complainant’s confession of having fabricated the allegation – shows that his conviction was a miscarriage of justice.
In arriving at this conclusion, it is not necessary for the court to concur in the entire of the findings of the House of Lords, or even of Lord Steyn, in Mullen.
The citation from the judgment of Lynch J., set out above, makes it clear that the construction of the phrase “miscarriage of justice” which favours the present applicant is the “primary”, and therefore not the only construction of that form of words. The court would point out that there is in this country an authoritative statement in the judgment of Mr. Justice Geoghegan in DPP v. Meleady (No. 3) [2001] 4 IR 16 at p.33. There, speaking in the context of an application of this sort, the learned judge said:
“… the exercise with which this court is concerned under the Criminal Procedure Act, 1993, is whether newly discovered facts are tantamount to proving a miscarriage of justice and that is not confined to the question of actual innocence but extends to the administration in a given case of the justice system itself.”
This passage was approved in DPP v. Shortt (No. 2) [2002] 2IR 696 where the court observed, having quoted the passage from Geoghegan J. set out above “… this is because, in many cases, it would be quite impossible for an applicant affirmatively to demonstrate his innocence in the ordinary sense of the term”.
The People (Director of Public Prosecutions) v. Pringle (No. 2)
O’Flaherty J. 228
C.C.A.
In accordance with the provisions of s. 38 of the Courts of Justice Act, 1924, the judgment of the Court of Criminal Appeal was delivered by one member.
O’Flaherty J.
28th July 1995
Since the court delivered judgment on the 16th May, 1995, Mr. Pringle (the applicant) appeared before the Special Criminal Court where on the 24th May, 1995, the Director of Public Prosecutions entered a nolle prosequi on the counts in respect of which a re-trial had been ordered.
Arising out of the court’s judgment, application is now made on behalf of the applicant for a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993. Section 9 provides:
“(1) Where a person has been convicted of an offence and either
(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice,
or
(b) (i) he has been pardoned as a result of a petition under section 7, and
(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice,
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.
(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Minister for Justice.
(4) The compensation shall be of such amount as may be determined by the Minister for Justice.
(5) Any person who is dissatisfied with the amount of compensation determined by the Minister may apply to the High Court to determine the amount which the Minister shall pay under this section and the award of the High Court shall be final.
(6) In subsection (1) “newly-discovered fact” means
(a) where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and
(b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial.” The purposes and objects of the Act of 1993, as set out in its long title are “to provide for judicial review of certain convictions and sentences, for presentation of petitions for the grant of pardon on the grounds of miscarriage of justice, for payment of compensation by the State to or in respect of persons convicted as a result of a miscarriage of justice and for connected matters.”
Counsel for the applicant relied on the decision of this court in The People (Attorney General) v. Murtagh [1966] I.R. 361 for a definition of”miscarriage of justice”. In that case Kenny J., delivering the judgment of the court referred, in turn, to a decision of the Court of Criminal Appeal in England in R. v. Bywaters (1922) 17 Cr. App. R. 66. There Hewart L.C.J., when dealing with a refusal by a trial judge to grant separate trials to two persons jointly charged with murder said:
“No doubt, if the result of trying together two persons who might have been tried separately had been a miscarriage of justice this Court would interfere. But what is meant by miscarriage of justice? It means that a person has been improperly found guilty. It is idle to suppose a miscarriage of justice has taken place if a prisoner against whom there is overwhelming evidence suffers some further evidence because another prisoner goes into the witness-box.”
We did not find that the applicant was improperly convicted. But, in any event, the court’s jurisdiction under the legislation is a new one so that precedents dealing with the quashing of convictions in the course of the exercise of the conventional jurisdiction of the court may not be of assistance. Of course, there is no statutory provision for the payment of compensation in such cases.
It is clear that the pertinent legislation envisages that it is not in every case where a conviction is quashed that a certificate should issue from this court. This is to preserve a consistency with the two methods by which convictions may be quashed, viz. under the old (but still existing) legislation where, for example, there was a misdirection by the trial judge in his charge to the jury as well as to the procedure provided for by s. 2 of the Act of 1993.
Where it is established that the applicant was innocent of any involvement in the crime alleged that would provide ample justification for the granting of a certificate. Further, for example, if in a given case the court were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.
To say that there are cases where the conviction should be quashed (as here) but, notwithstanding that, to refuse to issue a certificate is not to encroach on the place of the presumption of innocence in our criminal code. The presumption is, of course, fundamental to a trial in course of law. But the inquiry we make under the Act of 1993 is different: we have to find positively that a miscarriage of justice occurred in a given case. That the accused was improperly found guilty in the sense that that finding should not, in the circumstances as ultimately found, have been open to the court of trial.
Our findings, as set out in the judgment, do not go that far.
In the course of our judgment we held that the matter of the credibility of Detective Sergeant Connolly was something that might have raised a reasonable doubt in the mind of the Special Criminal Court resulting in a rejection of the disputed statement by the court. We went on to hold that in the circumstances the conviction of the applicant was unsafe and unsatisfactory but found that on the evidence presented to the trial court and the Court of Criminal Appeal (at the original hearing) both courts were correct and the only basis for reaching the conclusion that the conviction was unsafe and unsatisfactory was the consideration of the newly-discovered facts to which reference was made in the judgment.
In our present judgment this finding, together with the fact that we ordered a re-trial, is insufficient for us to be able to make a positive finding that a miscarriage of justice occurred in the circumstances of the applicant’s case.
The court, accordingly, will decline to certify under s. 9 that there has been such a miscarriage of justice.
By order dated the 28th July, 1995, the Court of Criminal Appeal granted the applicant leave to appeal to the Supreme Court on a point of law of exceptional public importance, pursuant to s. 29 of the Courts of Justice Act, 1924.
Blayney J.
4th March 1997
The issue before the court on this appeal is the question submitted to it by the Court of Criminal Appeal. By its order of the 28th July, 1995, the Court of Criminal Appeal certified that its decision refusing a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993, involved a point of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on such point. The point referred to is contained in the following question which has been submitted to this court.
“Is the court in its judgment delivered today, the 28th July, 1995, correct in refusing to the applicant a certificate under s. 9 of the Criminal Procedure Act, 1993, in the light of its findings in the judgment delivered on the 16th May, 1995?”
In order to answer the question it is necessary to start by considering three relevant matters:
1. the findings of the Court of Criminal Appeal in its judgment of the 16th May, 1995,
2. the provisions of s. 9 of the Act of 1993, and
3. the grounds on which the Court of Criminal Appeal refused the certificate under s. 9.
I propose to deal with each of these in turn.
1. The findings of the Court of Criminal Appeal in its judgment of the 16th May, 1995.
The judgment determined an application by the applicant under s. 2 of the Act of 1993, alleging that a newly-discovered fact showed that there had been a miscarriage of justice in relation to his conviction. The applicant had been convicted by the Special Criminal Court on the 23rd November, 1980, on charges of capital murder and robbery. Leave to appeal was refused by the Court of Criminal Appeal on the 22nd May, 1981. The applicant had been sentenced to death on the charges of capital murder and after the decision of the Court of Criminal Appeal, refusing leave to appeal, this sentence was commuted by the President, acting on the advice of the Government, to one of 40 years imprisonment without remission.
The principal piece of evidence on which the Special Criminal Court relied as establishing the guilt of the applicant was the following:
“A statement alleged to have been made by [the applicant] to Detective Inspector Culhane and Sergeant Connolly at Eglinton Street Garda Station on the morning of the 21st July, 1980, when he said ‘I know that you know I was involved, but on the advice of my solicitor I am saying nothing and you will have to prove it all the way’.”
It was argued before the Court of Criminal Appeal that newly-discovered evidence threw a doubt on Sergeant Connolly’s credibility and on that ground the applicant’s conviction should be set aside. The Court of Criminal Appeal accepted this submission. The relevant part of its findings is as follows:
“As has been held by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517 the Criminal Procedure Act, 1993, is intended to afford relief to those who could point to materials which, if they had been available at the trial, might, not necessarily would, have raised a reasonable doubt in the mind of the [court].
Applying that test this court is left in no doubt that if counsel for the accused at the hearing had had available to him the knowledge that Sergeant Connolly would say that he had handed the blood stained tissue to Detective Sergeant Ennis and that Detective Sergeant Ennis would say that he had not received the tissue, then this conflict as to the credibility of Sergeant Connolly might have raised a reasonable doubt in the mind of the Special Criminal Court resulting in a rejection of the disputed statement by the court.
Accordingly, on the third point raised in submissions in this court, the court finds that a newly-discovered fact exists in the case which renders the conviction of the applicant unsafe and unsatisfactory.”
As appears from the final paragraph of the passage cited, two other submissions had been put forward on behalf of the applicant, but these had been rejected by the court. The applicant succeeded on the single finding referred to.
2. The provisions of s. 9 of the Criminal Procedure Act, 1993.
This is a relatively long section but it is only necessary to refer to one part of it. It is not in dispute that the applicant established a “newly-discovered fact” as defined by the section, and that, if the court were to grant the relevant certificate, the applicant would be entitled to compensation. The part of the section which is relevant is as follows:
“(1) Where a person has been convicted of an offence and either
(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and
(ii) the Court or the court of re-trial, as the case may be, has certified that a newly discovered fact shows that there has been a miscarriage of justice, . . .
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”
A central issue on this appeal is how this provision should be construed, in particular, whether the admitted newly-discovered fact shows that there has been a “miscarriage of justice”.
3. The grounds on which the Court of Criminal Appeal refused the certificate.
These grounds are to be found in the last two and a half pages of the court’s judgment of the 28th July, 1995, which it is necessary to cite almost in full.
“It is clear that the pertinent legislation envisages that it is not every case where a conviction is quashed that a certificate should issue from this court . . .
Where it is established that the applicant was innocent of any involvement in the crime alleged that would provide ample justification for the granting of a certificate. Further, for example, if in a given case the court were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.
To say that there are cases where the conviction should be quashed (as here) but, notwithstanding that, to refuse to issue a certificate is not to encroach on the place of the presumption of innocence in our criminal code. The presumption is, of course, fundamental to a trial in course of law. But the inquiry we make under the Act of 1993 is different: we have to find positively that a miscarriage of justice occurred in a given case. That the accused was improperly found guilty in the sense that that finding should not, in the circumstances as ultimately found, have been open to the court of trial.
Our findings, as set out in the judgment, do not go that far. In the course of our judgment we held that the matter of the credibility of Sergeant Connolly was something that might have raised a reasonable doubt in the mind of the Special Criminal Court resulting in a rejection of the disputed statement by the court. We went on to hold that in the circumstances the conviction of the applicant was unsafe and unsatisfactory but found that on the evidence presented to the trial court and the Court of Criminal Appeal (at the original hearing) both courts were correct and the only basis for reaching the conclusion that the conviction was unsafe and unsatisfactory was the consideration of the newly-discovered fact to which reference was made in the judgment.
In our present judgment this finding, together with the fact that we ordered a retrial, is insufficient for us to be able to make a positive finding that a miscarriage of justice occurred in the circumstances of the applicant’s case.”
I agree with the reasoning on the basis of which the Court of Criminal Appeal reached its decision. The court did not attempt an exhaustive definition of the term “miscarriage of justice” and in my view this court should not attempt such a definition either. It is sufficient to show that the term cannot be applied to the facts of this case. This was the conclusion reached by the Court of Criminal Appeal on the grounds to which I have just referred and it seems to me that, in addition to those grounds, there are others which support the same conclusion.
What the court has to certify under s. 9 is that the newly-discovered fact shows that there has been a miscarriage of justice. The newly-discovered fact in this case was the doubt about the credibility of Sergeant Connolly. What did this show? It showed, as found by the Court of Criminal Appeal, that the conviction of the applicant was in the circumstances unsafe and unsatisfactory, and that for that reason it should be quashed. The applicant’s application under s. 2 was, by virtue of sub-s. 2 of s. 2, treated for all purposes as an appeal to the court under section 3. So the applicant’s conviction was quashed by the court in exercise of its jurisdiction under that section. The provisions of s. 2 opened the door, as it were, for the application to be brought, but once properly brought under that section, it was then treated in the same way as any normal appeal under section 3.
Since the applicant’s conviction was quashed under s. 3, is there any reason why he should be treated differently from any other applicant whose conviction has been quashed in an appeal brought under that section in accordance with the normal appeal procedure? Such an applicant would not be entitled to compensation. But if the term “miscarriage of justice” were held to apply to the applicant’s case, the applicant would be entitled to compensation. If the term were to be construed in this way, the result would in my opinion be to prefer unfairly an applicant who succeeded in having his conviction quashed because of a newly-discovered fact over an applicant whose conviction was quashed on some other ground. In my opinion this could not have been intended by the legislature as it would result in an injustice. It seems to me, accordingly, that the mere fact of the applicant’s conviction having been quashed as being unsafe and unsatisfactory could not on its own entitle the applicant to a certificate that there has been a miscarriage of justice.
Counsel’s main submission on behalf of the applicant was that he had had an unconstitutional trial and that this constituted a miscarriage of justice. He said that there had been a failure by the prosecution to make a full disclosure to the defence before the trial of all relevant materialthe omitted material being the fact that there was a conflict between the evidence of Sergeant Connolly and that of Detective Sergeant Ennis as to whether the former had handed to the latter the blood stained tissue which had been given to him by the applicant. This submission, however, is not supported by any finding made by the Court of Criminal Appeal. There is no finding that the existence of the conflict was known before the trial, and obviously, if it was not known, it could not have been disclosed. Mr. White sought to counter this by saying that if Sergeant Connolly’s first draft of his evidence, in which he referred to the blood stained tissue, had been given to the defence, then the fact that there was a dispute between Sergeant Connolly and Detective Sergeant Ennis might have been revealed. This implies that the first draft of Sergeant Connolly’s evidence ought to have been given to the defence, but this is far from certain. It would have been quite reasonable for Sergeant Connolly to take the view that the blood stained tissue was irrelevant since it had never been analysed and, accordingly, there was no point in referring to it. In these circumstances I cannot see how the failure to furnish the defence with a copy of the first draft of Sergeant Connolly’s evidence could have affected the constitutional validity of the trial.
Counsel submitted also that now that the applicant’s conviction had been quashed his presumption of innocence had been revived and this was relevant in considering whether there had been a miscarriage of justice. He further submitted that the fact that his client’s presumption of innocence had been rebutted by a constitutionally tainted trial constituted a miscarriage of justice. For the reasons I referred to earlier I am satisfied that the applicant’s trial was not invalid, and on this ground the latter submission must be rejected. As to the submission that the applicant’s presumption of innocence was restored as a result of his conviction being quashed, I would respectfully agree with what the Court of Criminal Appeal said in its judgment on this point. The presumption of innocence is fundamental to a criminal trial, but an inquiry as to whether a s. 9 certificate should be given is not a criminal trial. It is an inquiry as to whether there has been a miscarriage of justice, the onus of proof being on the applicant and is not a trial in which the onus is on the State to prove the guilt of the accused. The presumption of innocence has no place in such an inquiry.
I would answer the question submitted to the Court by saying that the Court of Criminal Appeal was correct in refusing to grant to the applicant a certificate under s. 9 of the Act of 1993.
The logical consequence of such a conclusion would be to dismiss the appeal, in which case the applicant’s claim to compensation under s. 9 would be at an end. However, it seems to me that to adopt such a course in the special circumstances of this case might be unfair to the applicant. This is only the second application under s. 9 to have been adjudicated upon by the Court of Criminal Appeal. The first was in the case of The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517 in which the Court of Criminal Appeal gave judgment on the 22nd March, 1995, but the judgment dealt mainly with the application to set aside the convictions of the applicants and only very briefly with the application for a certificate under section 9. Accordingly, when the present application was brought, there was virtually no guidance as to how s. 9 would be construed and, in particular, as to what meaning would be given to the term “miscarriage of justice”. Neither was there any guidance on the question of on whom the onus of proof lay and the standard of proof to be observed.
In the circumstances I take the view that the applicant should be given the opportunity of renewing his application to the Court of Criminal Appeal in the light of the principles enunciated in the judgments on this appeal. And so, while I am satisfied that on the evidence before it the Court of Criminal Appeal was correct in refusing to grant a certificate under s. 9, I would refer the matter back to the court so that the applicant may renew his application and adduce further evidence, if he wishes, with a view to trying to establish that he is entitled to a certificate under section 9.
Denham J.
I agree.
Barrington J.
I agree.
Murphy J.
I also agree.
Lynch J.
This appeal comes before the Supreme Court on foot of a certificate granted by the Court of Criminal Appeal at the conclusion of its judgment on the 28th July, 1995, in the following terms:
“the court doth certify that its decision delivered herein (in refusing a certificate pursuant to s. 9 of the Act of 1993) involves a point of law of exceptional public importance viz:
Is the court in its judgment delivered today the 28th July, 1995, correct in refusing to the applicant a certificate under s. 9 of the Criminal Procedure Act, 1993, in the light of its findings in the judgment delivered on the 16th May, 1995?
And doth further certify that it is desirable in the public interest that an appeal should be taken to the Supreme Court on such point.”
So far as the relevant facts of the case are concerned, they can be ascertained by a reading of the two judgments of the court given on the 16th May, 1995 and the 28th July, 1995, and I do not intend to repeat the facts in this judgment.
The applicant was convicted on the 23rd November, 1980, by the Special Criminal Court of capital murder and robbery on the 7th July, 1980. He applied for leave to appeal to the Court of Criminal Appeal and on the 22nd May, 1981, his application was refused. What was at issue on the 16th May, 1995, was an application pursuant to s. 2 of the Criminal Procedure Act, 1993, (the Act of 1993) which was acceded to by the court who quashed the conviction of the applicant by the Special Criminal Court and ordered a re-trial. When the case was subsequently listed for retrial before the Special Criminal Court the prosecution applied for and were permitted to enter a nolle prosequi the effect of which is that all criminal proceedings against the applicant in respect of the matters of which he was convicted in 1980 have now come to an end.
Thereafter the applicant applied to the Court of Criminal Appeal pursuant to s. 9 of the Act of 1993, for a certificate that there was a miscarriage of justice in his case so as to entitle him to claim compensation in respect of his convictions and subsequent imprisonment for some 14 years or so. The court by its judgment of the 28th July, 1995, refused such certificate and it is from that refusal that this appeal is brought by leave of the Court of Criminal Appeal.
The court in their judgments of the 16th May and the 28th July, 1995, adopted the analysis of the Act of 1993 by Keane J. in an earlier judgment of a differently constituted Court of Criminal Appeal delivered on the 22nd March, 1995, in the case of The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517. I also adopt Keane J.’s analysis but, as he points out, the Act of 1993 creates difficulties of construction and interpretation and it therefore merits some further examination.
The long title of the Act of 1993 is as follows:
“An Act to provide for Judicial Review of certain convictions and sentences, for presentation of petitions for the grant of pardon on the grounds of miscarriage of justice, for payment of compensation by the State to or in respect of persons convicted as a result of a miscarriage of Justice and for connected matters.”
This long title indicates that the Act of 1993 is concerned with three basic matters or aims namely:
1. Review by the Courts of certain convictions and sentences;
2. petitions for the grant of pardon on the grounds of miscarriage of justice;
3. payment of compensation to or in respect of persons convicted as a result of a miscarriage of justice.
It will be seen that the long title indicates that a miscarriage of justice must be established as a condition of 2 and 3 above but not of 1.
A person who has been convicted of an offence on indictment and who has unsuccessfully appealed to the Court of Criminal Appeal has merely to allege subsequently in a further notice of application to that court that a new or newly discovered fact shows that there has been a miscarriage of justice whereupon he comes within the terms of s. 2 of the Act of 1993 and becomes entitled to apply for an order quashing the conviction. This is a very simple mechanism to comply with and therefore to avoid abuse, s. 5 provides for the summary dismissal of such an application if the court considers it frivolous or vexatious on a referral to it by the Registrar of the Court, he being of the view that the application does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction. That did not arise in this case and therefore all that the applicant had to do was to lodge a notice of application to the Court of Criminal Appeal alleging that a new or newly-discovered fact shows that there has been a miscarriage of justice in his case and he thereby automatically fulfilled the conditions required by s. 2 to bring his case for review by the Court of Criminal Appeal. By virtue of sub-s. 2 of s. 2, the application is to be treated for all purposes as an appeal to the court against the convictions of November, 1980. It follows that at that stage of the application there is no requirement to show an actual miscarriage of justice. Any defect or error in the trial such as would render the convictions unsafe and unsatisfactory is sufficient to lead to a quashing of the convictions and this of course reflects the first basic aim of the Act of 1993 as set out in the long title.
Once the simple mechanics which I have described above have been complied with the application becomes by virtue of sub-s. 2 of s. 2 an appeal to the Court of Criminal Appeal against conviction and is thereafter governed by s. 3 of the Act. Under sub-s. 1 of s. 3 the Court of Criminal Appeal may (a) affirm the conviction, (b) quash the conviction, (c) quash the conviction and order a retrial and (d) quash the conviction and substitute a conviction of another offence.
The applicant relied in particular on s. 3, sub-s. 1 (a) which I therefore quote in full:
“3. (1) On the hearing of an appeal against conviction of an offence the Court may
(a) affirm the conviction (and may do so, not withstanding that it is of opinion that a point raised in the appeal might be decided in favour of the applicant, if it considers that no miscarriage of justice has actually occurred).”
It was submitted that if the Court of Criminal Appeal simply quashed the conviction and made no further order that must necessarily involve a finding that there had been a miscarriage of justice because if the court thought there had not it should have affirmed under paragraph (a) of sub-section 1. I disagree. Under paragraph (a) the court is given a discretion. If it is of the view that a point raised in the appeal should be decided in favour of the applicant it may quash the conviction even though it is of the view that no miscarriage of justice has actually occurred especially if the court considers that the point on which the applicant succeeds is one which is attributable to some fault or error on the part of the prosecution and not something reasonably unforeseen which arose in the course of the trial. The mere fact that the Court of Criminal Appeal quashes a conviction and does not order a re-trial does not of itself establish that a miscarriage of justice has actually occurred.
In this connection I should mention that counsel for the Director of Public Prosecutions properly conceded that where the Court of Criminal Appeal quashes a conviction and orders a re-trial and thereafter the Director of Public Prosecutions enters a nolle prosequi in circumstances where it is clear that a re-trial will never take place that may be regarded as the same as if the Court of Criminal Appeal had quashed the conviction and made no further order by virtue of paragraph (b).
The applicant in this case has gone through all the foregoing steps and now stands as a person unconvicted of the offences with which he was charged in 1980 and presumed to be innocent of them in case any attempt should be made to reinstate the charges. The essence of this appeal relates to the refusal by the Court of Criminal Appeal to certify that a newly-discovered fact shows that there has been a miscarriage of justice in the applicant’s case within the meaning of s. 9, sub-s. 1 (a) (ii) of the Act of 1993.
I start off by quoting the first three sub-sections of s. 9 so far as applicable to the facts of this case.
“(1) Where a person has been convicted of an offence and either
(a) (i) his conviction has been quashed by the Court on an application under section 2, . . . and
(ii) the Court . . . has certified that a newly discovered fact shows that there has been a miscarriage of justice . . .
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person . . . unless the nondisclosure of the fact in time is wholly or partly attributable to the convicted person.
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.
(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Minister for Justice.”
Section 9 is implementing the third basic aim of the Act of 1993 outlined above, namely the payment of compensation to or in respect of persons convicted as a result of a miscarriage of justice.
The right to compensation arises only when the conditions mentioned in s. 9, sub-s. 1 (a) (i) have been fulfilled. These conditions presuppose that all criminal proceedings in relation to the offences of which the applicant was convicted have finally concluded with an acquittal. Those conditions have been fulfilled in the applicant’s case. All criminal proceedings are at an end and the applicant therefore applied to the Court of Criminal Appeal pursuant to s. 9, sub-s. 1 (a) (ii) to certify that a newly-discovered fact shows that there has been a miscarriage of justice in his case.
The essence of the right to compensation under s. 9, sub-s. 1 (a) (ii) requires that the Court of Criminal Appeal or, the court of re-trial as the case may be, is satisfied that a newly-discovered fact shows that there has been a miscarriage of justice. This then gives rise to three questions namely:
1. On whom is the burden of proof that a newly-discovered fact shows that there has been a miscarriage of justice?
2. What is the standard of proof required?
3. What is the meaning of “miscarriage of justice”?
The first of these questions raises the further question as to what is the status of the applicant when he applies to the Court of Criminal Appeal for the certificate. He is no longer an accused person. The criminal proceedings are at an end and he is at that stage an applicant for a certificate to enable him to claim monetary compensation as a plaintiff or applicant, see s. 9, sub-ss. 2 and 3 of the Act of 1993.
Prima facie the burden of proof is on the applicant. But counsel for the applicant calls in aid the presumption of innocence and submits that by reason of that presumption the burden of proving that there has been no miscarriage of justice is thrown on to the Director of Public Prosecutions. However, this is to call in aid the presumption of innocence where it does not arise.
In our law the general rule as to burden of proof is that he who asserts must prove. In civil cases he who asserts is required to prove his assertions only on the balance of probabilities that is to say as being more probable than not. In criminal cases the prosecuting authority assert that the accused has committed some criminal offence and they must therefore prove that assertion and prove it beyond a reasonable doubt. It is in that context that the presumption of innocence arises. It does not exist in vacuo or in any and every circumstance. It exists in the context of the criminal law and criminal prosecutions.
For example, a person may sue the State for wrongful arrest and consequent assault and false imprisonment. He will have pleaded a wrongful and unlawful arrest. The State may simply deny that the arrest was wrongful or unlawful without denying the actual fact of the arrest. The plaintiff cannot rely on the presumption of innocence and give no evidence regarding the circumstances of the arrest. He must give evidence which prima facie shows that there was no reasonable basis for his arrest. Such evidence will then transfer the onus or burden over onto the State to show circumstances which justify the arrest in law.
That the presumption of innocence exists in the context of criminal prosecutions and the burden of proof resting on the prosecuting authority is made clear by a passage in the course of discussing Article 38, s. 1 of the Constitution as to trials to be in due course of law at pp. 586 and 587 of Kelly on the Irish Constitution (3rd ed.) as follows:
“The interaction of the constitutional requirements as to trial in due course of law and the evidential rules as to burden of proof is a matter which has only been explored by the courts in recent times and even then imperfectly. As Costello J. confirmed in O’Leary v. Attorney General [1993] 1 I.R. 102 (since affirmed by the Supreme Court [1995] 1 I.R. 254) Article 38, s. 1 requires that all criminal trials be conducted in accordance with the presumption of innocence. While it is clear that the courts will not accept a standard of proof less than the common law standard of proof beyond reasonable doubt, legislation which reverses the evidential burden of proof (the legal burden of proving guilt remaining at all times on the prosecution) is not necessarily unconstitutional.”
I think it is worth quoting also what Costello J. says in O’Leary v. The Attorney General [1993] 1 I.R. 102 at p. 107 of the report as follows:
“I have little difficulty in accepting the basic contention on which these arguments are posited and in construing the Constitution as conferring on every accused in every criminal trial a constitutionally protected right to the presumption of innocence. This right is now widespread and indeed enjoys universal recognition. Article 11 of the United Nations Universal Declaration of Human Rights, 1948, provides that ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law’: Article 6(2) of the European Convention on Human Rights and Fundamental Freedoms, 1950, provides that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’: Article 8 (2) of the American Convention on Human Rights, 1969, prepared within the Organisation of American States provides that ‘every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to law’: Article 7 of the African Charter on Human and Peoples’ Rights provides that every individual has the right to have his cause heard and declares that this inter alia comprises ‘the right to be presumed innocent until proven guilty by a competent Court or tribunal’.
. . . The Constitution of course contains no express reference to the presumption but it does provide in Article 38 that ‘no person shall be tried on any criminal charge save in due course of law’. It seems to me that it has been for so long a fundamental postulate of every criminal trial in this country that the accused was presumed to be innocent of the offence with which he was charged that a criminal trial held otherwise than in accordance with this presumption would,prima facie be one which was not held in due course of law. It would follow that prima facie any statute which permitted such a trial so to be held would be unconstitutional.”
Once one arrives at the stage where a person is applying to the Court of Criminal Appeal for a certificate under s. 9, sub-s. 1 (a) (ii) all relevant criminal proceedings are at an end. The applicant in this case is no longer an accused person. He is an applicant for a certificate to enable him to claim monetary compensation either as an applicant or as a plaintiff. The stage has been reached where the matter is no longer a criminal matter at all: it is now a civil claim arising out of completed criminal matters and the applicant is an applicant or a plaintiff for civil relief of a monetary nature. From this it follows that the answers to the first two questions posed above are:
1. The burden of proof that a newly-discovered fact shows that there has been a miscarriage of justice in the applicant’s case rests on the applicant.
2. The standard of proof is the same standard as in any civil claim namely the balance of probabilities.
This brings me to my third question above, that is to say what is the meaning of the phrase “miscarriage of justice” as used in the Act of 1993? The Act of 1993 does not define the term. Counsel for the applicant referred this court to a number of Australian cases. However it is apparent from a reading of these cases that they turn on the particular wording of the Australian “Common Criminal Appeal Provisions”. They might be of assistance in considering the question as to whether or not the convictions ought to be set aside as unsafe and unsatisfactory, that is to say the appeal against the convictions pursuant to s. 2 and s. 3 of the Act of 1993, but they are of no assistance in considering the question whether or not a certificate should be granted pursuant to s. 9, sub-s. 1 (a) (ii) on the grounds that a newly-discovered fact shows that there has been a miscarriage of justice such as to entitle the applicant to compensation.
Thus in the Australian case of Chidiak v. The Queen [1991] L.R.C. 360 at p. 380 to which counsel referred it is stated:
“A conviction that is unsafe or unsatisfactory in the sense that a jury must, upon the evidence, have entertained a reasonable doubt is one which must be set aside under the common criminal appeal provisions. . . . Thus, a conviction which is unsafe or unsatisfactory in the sense earlier indicated is also commonly and accurately described as one involving a miscarriage of justice. But the expression ‘miscarriage of justice’ is not restricted to the situation in which a jury must, on the evidence, have entertained a reasonable doubt. That was the point of the statement in Morris that: ‘there might be verdicts falling within the concept of miscarriage of justice . . . by reason of some defect or weakness of the evidence even though on the evidence it was open to the jury to be satisfied of guilt beyond reasonable doubt’.”
The foregoing is clearly not the law in this State: a conviction based on evidence upon which it was open to the jury or the Special Criminal Court to be satisfied of guilt beyond a reasonable doubt could not be set aside by an appeal court simply because the appeal court itself might have a “lurking doubt” about the verdict. See the decision of the Court of Criminal Appeal approved by the Supreme Court in The People (Director of Public Prosecutions) v. Egan (Luke) [1990] I.L.R.M. 780 approving of The People (Attorney General) v. Williams [1940] I.R. 195 and disapproving of R. v. Cooper [1969] 1 Q.B. 267. A fortiori such a conviction could not amount to a miscarriage of justice within the meaning of s. 9, sub-s. 1 (a) (ii) of the Act of 1993.
A person applying for a certificate under s. 9, sub-s. 1 (a) (ii) of the Act of 1993 must establish on the balance of probabilities two things to entitle him to a certificate namely:
1. that there has been a miscarriage of justice in his case, and
2. that a newly-discovered fact, either on its own or to a significant degree in combination with other matters, shows that there has been such a miscarriage of justice.
It is clear from the concluding passages of the judgment of the Court of Criminal Appeal of the 28th July, 1995, that if the court had been satisfied that there was a miscarriage of justice it would have been satisfied that such miscarriage of justice had been shown to exist by a newly-discovered fact. The question for decision by this court therefore is whether or not the Court of Criminal Appeal ought to have found that there had been a miscarriage of justice in the applicant’s case having regard to their findings in their judgment of the 16th May, 1995.
The primary meaning of miscarriage of justice in s. 9, sub-s. 1 (a) (ii) of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted. The application for the certificate under that provision of the Act of 1993 was made to and heard by the Court of Criminal Appeal in June, 1995 and their judgment of the 28th July, 1995, was a reserved judgment. The applicant had an opportunity of making such submissions and case as he thought appropriate and his submissions and case were fully considered by the Court of Criminal Appeal. The applicant does not appear to have sought to adduce further evidence or to give evidence himself on the application for a certificate which it would be open to him to do if he so wished.
At p. 230 of their judgment the Court of Criminal Appeal give a definition of miscarriage of justice as follows:
“Where it is established that the applicant was innocent of any involvement in the crime alleged, that would provide ample justification for the granting of a certificate. Further, for example, if in a given case the court were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.”
The foregoing is a definition with which I am in full agreement. The primary meaning of miscarriage of justice is that the applicant for a certificate is on the balance of probabilities as established by relevant and admissible evidence innocent of the offence of which he was convicted. As the Court of Criminal Appeal said there may be other cases such as the example they refer to or perhaps a case involving such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial or constitutional procedure at all. See Robins v. The National Trust Company Ltd. [1927] A.C. 515 atp. 518.
Each case must depend upon its own particular facts and the Court of Criminal Appeal or the court of re-trial as the case may be will have to decide on those facts whether or not there has been a miscarriage of justice within the meaning of that term as used in s. 9, sub-s. 1 (a) (ii) of the Act of 1993 and as tentatively defined by the Court of Criminal Appeal and in this judgment. In such other cases however even if the court were satisfied that a miscarriage of justice had occurred it must be remembered that a certificate cannot issue unless the court is also satisfied on the balance of probabilities that such miscarriage of justice has been shown to exist by a newly-discovered fact either on its own or to a significant degree in combination with other matters.
In the present case the Court of Criminal Appeal correctly defined the meaning of miscarriage of justice and found that none such had been established. The reasons they gave adequately support this conclusion and therefore if nothing further is forthcoming this appeal would properly be dismissed.
However, I respectfully agree with the judgment of Blayney J. and with the course which he suggests. It may not have been fully appreciated by bench or bar in the Court of Criminal Appeal that an application for a certificate pursuant to s. 9, sub-s. 1 (a) (ii) is a distinct and different inquiry from the appeal against conviction, such as to entitle either party to adduce further evidence in addition to making further submissions. This court will therefore order that the matter be referred back to the Court of Criminal Appeal to consider the matter further in the light of the judgments of this court and of any (if any) further evidence and/or submissions which may be adduced and/or made by either party.
The People (Director of Public Prosecutions) v. Meleady (No. 2)
Blayney J.
S.C.
Blayney J.
4th March 1997
On the 8th May, 1985, the applicants were convicted in the Dublin Circuit Court on counts of malicious damage and assault and were sentenced to five years imprisonment. The case against them rested solely on identification evidence given by Mr. E. Gavin and his son Paul. On appeal to the Court of Criminal Appeal, the applicant’s convictions were quashed and a re-trial ordered. The new trial took place on the 26th and 27th November, 1985, when the applicants were again convicted and given the same sentence.
After the passing of the Criminal Procedure Act, 1993, the applicants brought an application under s. 2 of the Act alleging that a newly-discovered fact showed that there had been a miscarriage of justice in relation to their convictions. Their application was successful. On the 19th July, 1995, the Court of Criminal Appeal made an order quashing the convictions. No re-trial was ordered as the applicants had already served the sentences imposed on them.
In the proceedings before the Court of Criminal Appeal the applicants had also asked the court to certify under s. 9 of the Act of 1993 that the newly-discovered fact showed that there had been a miscarriage of justice. The court refused to grant this certificate but certified under s. 29 of the Courts of Justice Act, 1924, that its decision refusing a certificate under s. 9 of the Act of 1993 involves a point of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court from that decision. The point of law is:
“Whether the Court of Criminal Appeal having quashed a conviction of an accused by reason of a failure of the Director of Public Prosecutions to disclose to such accused material that was pertinent and to which might have been of use in the presentation of his defence, and having determined not to order a re-trial erred in law in
refusing to grant a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993, by reason only of the fact that the guilt or innocence of such accused had not been determined by a jury at a trial where the said non-disclosed material had been available to the accused?”
As can be seen from the way in which the point of law is phrased, this court is being asked a very net question. It is not been asked the general question of whether the Court of Criminal Appeal erred in law in refusing to grant the certificate under section 9. What it is being asked is whether the court erred in its reason for refusing the certificate. So the inquiry which this court has to conduct is a very limited one. It has to determine whether the Court of Criminal Appeal erred in law in refusing the certificate under s. 9 for the particular reason stated in the point of law the subject of the appeal.
Before addressing this question, it is necessary to give further particulars of the background. The facts giving rise to the charges against the appellants are set out in detail in the judgment of the Court of Criminal Appeal of the 22nd March, 1995, reported at [1995] 2 I.R. 517 and may be summarised as follows: On the night of the 26th February, 1984, Mr. Eamon Gavin was in his home in Templeogue. He heard the noise of a car being started. He went out with his son Paul and saw some people in his car which had been parked outside his house. He tried to pull open the driver’s door, but it was locked. With a view to trying to stop the car being driven away, Mr. Gavin jumped on the bonnet and lay across the windscreen. It is not necessary to give all the details of what happened subsequently. The car was driven for some distance with Mr. Gavin on the bonnet. He was struck with various articles by people inside the car. Ultimately, he was able to get off the bonnet and the car was driven off. It was found later. Mr. Gavin thought there were three people in the car, the driver and a front seat passenger, and someone in the back.
About a week later, Mr. Gavin was brought by a member of the gardaà to Rathfarnham District Court to see if he could identify any of the persons there as being the occupants of the car. He saw the two applicants there. He identified Mr. Meleady as the driver of the car and Mr. Grogan as the passenger in the front seat.
The Court of Criminal Appeal found that two separate items constituted the newly-discovered fact. The first related to the fingerprint of a man called Brendan Walsh who had given evidence at the first trial. He had pleaded guilty to similar charges to those brought against the appellants. His evidence was that he was the front seat passenger and that neither of the appellants was in the car. It was put to him in cross-examination
that he had been in the back of the car and not in the front, and that his fingerprint had been found in that area. He repeated that he had been in the front of the car. It was discovered subsequently that the question put to Brendan Walsh had been based on a wrong premise. His fingerprint had in fact been found on the inside of the front passenger window. The Court of Criminal Appeal said in its judgment on this issue:
“The evidence as to the location of the fingerprint was a newly-discovered fact which the applicants were entitled to allege, and did allege, showed that there had been a miscarriage of justice at both trials. It thus constituted an appropriate ground for the invocation of the jurisdiction of this court under s. 3 of the Act of 1993. The court is satisfied that its non-disclosure to the defence before the first trial rendered the convictions recorded by the jury in the second trial unsafe and unsatisfactory.”
The second item on which the applicants relied as constituting a newly-discovered fact was what was referred to in the judgment of the Court of Criminal Appeal as the “Walker Memorandum”. This was a written memorandum made on the 18th May, 1984, by Mr. Richard Walker, a solicitor in the office of the Chief State Solicitor, shortly before the applicants were returned for trial. The memorandum was as follows:
“Note for the Circuit Court section.
Garda Patrick Thornton mentioned to me that Eamon Gavin had asked to see a book of photographs to see if he could identify any of the people who had taken his carhe saw a book containing fifty photographs and identified one of the accused. This was prior to the court identification. Should additional evidence in relation to this be brought?”
The Court of Criminal Appeal commented on this memorandum as follows at p. 543:
“As to the Walker Memorandum, the Court accepts that the memorandum was written and initialled by Mr. Walker on the 16th May, 1984 and also accepts his evidence that, while he does not, at this remove, remember the conversation, he sees no reason to doubt that it accurately recorded his understanding at the time of information communicated to him by Sergeant Thornton. As against that evidence, however, the Court has heard both Mr. Gavin and Sergeant Thornton deny in the most categorical terms that the latter showed the former an album of photographs, including a photograph of the first applicant prior to the purported identification. Moreover, while the names of all the gardaà who had custody of the relevant photographs and who were stated in the grounds of opposition to have denied, when interviewed about the matter, that they had ever been given to Sergeant Thornton for that purpose were listed in the grounds of opposition, none was requested to give evidence.
The court finds it unnecessary to resolve these and other conflicts of evidence relating to the Walker Memorandum”.
The court went on to find that the memorandum’s “non-disclosure to the defence before the first trial also rendered the convictions recorded by the jury in the second trial unsafe and unsatisfactory”.
Having found that each of the newly-discovered facts was a ground for holding that the convictions of the applicants were unsafe and unsatisfactory the court then considered the application for the certificate under section 9. It said in its judgment at p. 545:
“There remains the question as to whether the court should certify, pursuant to s. 9, sub-s. 1 (a) (ii), that the newly-discovered facts in question show that there has been a miscarriage of justice in the case of either applicant. The court has already rejected the submission advanced on behalf of the applicants that such a certificate is a necessary consequence of the quashing of the convictions without a re-trial. The evidence of Mr. Gavin which was accepted by the juries in the two trials of the applicants and was given again on oath to this court has never been considered by a jury in a trial not flawed by the irregularities identified as a result of the present applications. In these circumstances, the court is not in a position to certify that the newly-discovered facts show that, in the case of either applicant, there has been a miscarriage of justice.”
There is a slight difference between the reason stated here for the court not being in a position to grant a certificate under s. 9 and the reason stated in the point of law the subject of the appeal. In the former, the reason given is that the evidence of Mr. Gavin had never been considered by a jury in a trial not flawed by the irregularities identified in the court’s judgment, and in the latter the reason given is that the guilt or innocence of the appellants had not been determined by a jury at a trial where a non-disclosed material had been available to the accused. The difference is not important. Common to both reasons is that there has not been a decision by a jury in a trial in which the non-disclosed material had been available to the accused. The court took the view that in the absence of such a decision it was not in a position to grant a certificate under section 9.
If I am correct in construing this as meaning that the court considered that they were precluded from granting a certificate by reason of the absence of such a decision, I regret that I am unable to agree. What the court seems to be saying in effect is that it cannot enter on the inquiry as to whether a certificate should be granted under s. 9 because there has been no trial at which the non-disclosed material was made available. There does not seem to be any provision in the Act of 1993 which would support this conclusion. The relevant part of s. 9 provides as follows:
“(1) Where a person has been convicted of an offence and either
(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and
(ii) the Court or the Court of re-trial as the case may be, has certified that a newly discovered fact shows that there has been a miscarriage of justice,
or
(b) [not relevant]
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”
The condition which is the subject of sub-s. 1 (a) (i) may be satisfied in any one of three ways:
1. the conviction is quashed on an application under s. 2 and no retrial ordered,
2. the conviction is quashed on appeal and no re-trial ordered, or
3. the accused is acquitted on a re-trial.
Once the condition in sub-s. 1 (a) (i) is satisfied in one or other of these three ways, the party who has had his conviction quashed, or has been acquitted on a re-trial, is entitled to have the court enter on the inquiry as to whether he is entitled to a certificate that a newly-discovered fact shows that there has been a miscarriage of justice. No distinction is made in the section between persons whose convictions are quashed, and those who are acquitted on a re-trial. All are entitled to seek the certificate in question. The Act of 1993 does not create any obstacle to the court entering on the inquiry and it seems to me that the Court of Criminal Appeal ought to have done so.
I would allow the appeal and answer the question submitted to the court by saying that the Court of Criminal Appeal erred in law in refusing to grant a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993, by reason only of the fact that the guilt or innocence of the applicants hadA not been determined by a jury at a trial where the non-disclosed material had been available to the accused.
It would seem to follow that the case should be remitted to the Court of Criminal Appeal to consider again the applicants application for a certificate under section 9.
Although it is probably not necessary to do so, I would emphasise that I am not expressing any opinion on the actual decision of the Court of Criminal Appeal to refuse to grant a certificate under section 9. My judgment is confined to disagreeing with the exclusive reason for the refusal.
Denham J.
I agree with the judgment delivered by Blayney J.
Barrington J.
I agree.
Murphy J.
I agree.
Lynch J.
I agree.
The People (Director of Public Prosecutions) v. Meleady (No. 3)
Court of Criminal Appeal
[2001] 4 IR 18
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 a single member.
Geoghegan J.
20th March, 2001
This is a case with a quite extraordinary history. In order to understand it and place it in context it is necessary to give a brief outline of that history, which covers a period of some seventeen years. On the 26th February, 1984, a car belonging to one Eamon Gavin was stolen from outside his house in Templeogue. Mr. Gavin was alerted to the theft and tried to prevent his car being taken by jumping onto the bonnet. The car was then driven for a considerable distance with Mr. Gavin on the bonnet. He eventually climbed down off the car after having been threatened and assaulted. By any standard it was a brutal crime and a horrific experience for Mr. Gavin. At all material times Mr. Gavin claimed that he would be in a position to identify two of the car thieves, being the driver and the front seat passenger.
The gardaà set about tracing the culprits. At their request, Mr. Gavin went to Rathfarnham courthouse on the 5th March, 1984. Both applicants were in court on other charges. Mr. Gavin identified the first applicant herein, as the youth who was driving his car on the occasion of the theft and he identified the second applicant as the front seat passenger. At a later stage on the same morning Mr. Gavin’s son, who was a student at Terenure College, was taken out of school by his father and brought to Rathfarnham courthouse, where he identified the first applicant as the driver of his father’s car. Both applicants were then arrested and charged. A much fuller and more detailed account of the facts is to be found in the judgment of Keane J. delivering the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517.
A fingerprint was located on the inside of the window of the front passenger seat. That fingerprint was found to belong to one Brendan Walsh and he was prosecuted in relation to the incident in a separate prosecution, brought from a different garda station and as part and parcel of other charges against him. He subsequently pleaded guilty and was sentenced accordingly. The importance of all of this will emerge later on in this judgment.
The applicants were duly returned for trial to the Dublin Circuit Court and a trial, which proved to be the first of two trials, took place on the 7th May, 1985, before Judge Lynch and a jury. The case for the prosecution rested entirely on the credibility of the identification evidence. The two Mr. Gavins gave evidence of their respective identifications in Rathfarnham courthouse. The two applicants gave evidence denying any involvement and there was called on their behalf a number of alibi witnesses, together with Mr. Brendan Walsh, already referred to. Brendan Walsh’s evidence was to the effect that neither of the applicants were in the car on the occasion and that he, Mr. Walsh, was a front seat passenger. Counsel for the prosecutor cross-examined Mr. Walsh on the basis that he had been in the back of the car and not the front because a fingerprint of his had been found on the back window. Counsel put this question to Mr. Walsh on the prompting of Garda Thornton, the prosecuting garda. Mr. Walsh, however, persisted in asserting that he was in the front of the car. Counsel could not pursue the matter any further as he was not in a position at that time to call any rebuttal evidence. The jury returned a verdict of guilty.
Both of the applicants appealed their convictions to the Court of Criminal Appeal and the hearing of their appeals took place on the 11th November, 1985. The applicants obtained leave from the Court of Criminal Appeal to adduce additional evidence at the appeal, being the evidence of one Paul MacDonnell. This arose because on the 22nd May, 1985, Paul MacDonnell, having previously contacted the parents of the applicants, attended at their solicitors’ office and made a statement that he and Brendan Walsh and a third man, whom he did not name but referred to as “the driver”, took Mr. Gavin’s car, carried him on the bonnet and recounted how allegedly Mr. Walsh had assaulted Mr. Gavin. In the light of this new evidence the Court of Criminal Appeal allowed the appeal and ordered a re-trial.
The second trial took place on the 26th and 27th November, 1985, before Judge Gleeson and a jury. At that trial no defence evidence of any kind was called. There has been some evidence before this court as to the circumstances in which that decision was made and to which reference will be made later on in the judgment. Counsel for the applicants in the second trial purported to rely on the alleged defective identification evidence claiming that there ought to have been a proper identification parade. But the applicants were again convicted.
Appeals from those convictions were dismissed by the Court of Criminal Appeal on the 28th April, 1986.
In December, 1986, Paul MacDonnell was charged with perjury and he was put on trial in the Dublin Circuit Court before Judge Buchanan and a jury on the 21st July, 1987. In the course of cross-examination by Mr. MacDonnell’s counsel, it emerged from the evidence of Detective Sergeant Felix McKenna that Brendan Walsh’s fingerprint was found on the “inside passenger door window”. The jury in that trial entered a disagreement.
A few days later i.e., on the 27th July, 1987, Mr. MacDonnell’s solicitor wrote to the first applicant’s father informing him of the fingerprint evidence of Detective Sergeant McKenna.
The second perjury trial took place on the 7th December, 1987. Brendan Walsh gave evidence and was cross-examined. As in the earlier trial the Gavins gave the evidence of identification which they had always given. On this occasion Mr. MacDonnell was convicted. Judge Moriarty sentenced him to eighteen months imprisonment, suspended on his bond of good behaviour and on condition of his completing 210 hours of community service.
It is appropriate to digress at this point briefly to explain that there had been considerable media controversy as to the correctness of the convictions of the applicants. It is neither necessary nor desirable to go into this in any detail but it does form a backdrop as to why, in part at least, there were, as will be explained, considerable internal investigations within the gardaÃ, the Office of the Chief State Solicitor and the Director of Public Prosecutions, as to the processing of these cases. The location of the fingerprint was crucial new evidence which had been discovered. It was not crucial in the sense of conclusively proving innocence on the part of the applicants but it was crucial in the sense that had it been before the jury in either of the two trials in the prosecutions against the applicants, the jury might, at the very least, have had a reasonable doubt especially as the fingerprint was an inverse thumb mark on the inside of the front passenger window and near the top. But in the context of this present application a much more important piece of additional information came to light. On the 4th February, 1991, Mr. Barry Donoghue, then a senior solicitor in the Chief State Solicitor’s Office, was requested to investigate and report on these cases. When he examined all the documentation he discovered what has come to be known as “the Walker memorandum”. Apparently, the system at that time in the District Court section of the Chief State Solicitor’s Office was to leave at the top of a file, going from the District Court to the Circuit Court on a return for trial, a document known as Form 8 with routine particulars of the case. The solicitor dealing with this case in the District Court at that time for the Chief State Solicitor’s Office, was Mr. Richard Walker. He endorsed a very clear memorandum on Form 8. There is apparently some controversy as to his correct use of procedures, but nothing turns on that for the purpose of this application. Given the already existing controversy surrounding the convictions in these cases, the terms of the memorandum discovered were bordering on the sensational. The memorandum read as follows:-
“Note for Circuit Court section
Garda Patrick Thornton mentioned to me that Eamon Gavin had asked to see a book of photographs to see if he could identify any of the people who had taken his car – he saw a book containing fifty photographs and identified one of the accused. This was prior to the court identification. Should additional evidence in relation to this be brought?”
The memorandum was dated the 16th May, 1984, which was shortly before the applicants were returned for trial by the District Court. With some justification the applicants were aggrieved that three years elapsed before the existence of the Walker memorandum was disclosed to them and even then it only became disclosed as being a document found by the solicitor for the applicants among large bundles of State papers furnished to him in connection with a new proceeding,i.e., an application under the Criminal Procedure Act, 1993, which will be explained in the course of the judgment.
The context of that application arose in the following circumstances. On the 11th June, 1992, and with the assistance of the applicants’ new solicitor, Mr. Greg O’Neill, a petition for a presidential pardon was submitted with supporting documents. The Attorney General at the time, however, advised the Government that he would not recommend a pardon but that the matter could be dealt with in the context of an application under the Criminal Procedure Bill, which was then passing through the Oireachtas. In that context he directed disclosure of all papers in the case to the applicants’ lawyers. A Government press statement publicised the Attorney General’s advice. The Bill became law on the 29th December, 1993. On the 25th April, 1994, the applicants commenced proceedings under s. 2 of the Act of 1993. The parts of the section which are relevant to this case read as follows:-
“(1) A person –
(a) who has been convicted of an offence either –
(i) on indictment, or
(ii) ¦
who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and,
(b) who alleges that a new or newly-discovered facts shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,
may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.
(4) The reference in subsection (1)(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisors during the trial or appeal proceedings.”
“The Court” for this purpose is the Court of Criminal Appeal and the applicants availed of s. 2 of the Act of 1993, to seek to have their convictions quashed on foot of newly discovered facts, the relevant ones in the event being the location of the fingerprint and the Walker memorandum. In the event of their convictions being quashed they were then entitled, under s. 9 of the Act of 1993, to apply to the court for a certificate that a newly discovered fact showed that there had been a “miscarriage of justice” and if such a certificate were to issue from the court, the applicants were then entitled to apply to the Minister for Justice for compensation or to institute an action for damages arising out of the conviction.
These applications, under the Act of 1993, came before the Court of Criminal Appeal (differently composed) in 1995 and the judgment of the court, to which I have already briefly referred, was delivered by Keane J. on the 22nd March, 1995. That court found that the location of the fingerprint and the Walker memorandum were both “newly discovered facts” within the meaning of the Act of 1993. The court went on to point out that an application under s. 2(1) is to be treated under the Act for all purposes as an appeal to the court against conviction or sentence and that s. 3 of the Act goes on to re-enact what were always the traditional powers of the court on such an appeal. The court then concluded that, on foot of each of these newly discovered facts, the applicants were entitled to have their convictions quashed. In relation to the fingerprint, the court accepted the arguments put forward on behalf of the applicants that the possibility must exist that the evidence of the witness, Brendan Walsh, was discredited in the mind of the jury in the first trial by the putting to him of the question as to the location of the fingerprint, and that it was on that ground that they rejected that evidence which exonerated the applicants from complicity in the events of that evening. The court went on to observe that, since the defence was still unaware of the true position as to the location of the fingerprint when the second trial began, there was no reason to believe that if Brendan Walsh were called again at the second trial his evidence would not likewise be discredited. Accordingly, the convictions were unsafe and unsatisfactory.
Turning to the Walker memorandum, the court did not find it necessary to resolve conflicts of evidence in relation to it. These conflicts were substantial. The court heard evidence from Mr. Walker that, while at that remove he did not remember the events, he was quite satisfied that he would not have written the memorandum unless it was accurate and he was equally satisfied that it did relate to these cases. To a certain extent he speculated as to the exact circumstances in which he obtained the information but nothing really turns on that. The court went on to point out however, that both Mr. Gavin and Sergeant Thornton (as he had then become) vehemently denied that an album of photographs was ever shown to Mr. Gavin. The court did not find it necessary to resolve the conflicts in that it was at any rate imperative in a case which depended exclusively and critically on evidence of identification, that all relevant material relating to the identification should have been before the juries. The Walker memorandum fell into that category as it could obviously have been availed of by the defence for the purposes of cross-examining Mr. Gavin and Sergeant Thornton. The failure to disclose it was, therefore, another ground for quashing the convictions.
Notwithstanding that the court quashed the convictions on both grounds, the certificate under s. 9 was nevertheless, refused. It is helpful to quote what the court said in this regard. The relevant passage is as follows and is at p. 545:-
“The Court has already rejected the submission advanced on behalf of the applicants that such a certificate is a necessary consequence of the quashing of the convictions without a retrial. The evidence of Mr. Gavin which was accepted by the juries in the two trials of the applicants and was given again on oath to this Court has never been considered by a jury in a trial not flawed by the irregularities identified as a result of the present application. In these circumstances, the Court is not in a position to certify that the newly discovered facts show that, in the case of either applicant there has been a miscarriage of justice.”
It is appropriate to mention here that the question of a new trial did not arise as both applicants had completed their terms of imprisonment.
Following on that decision, the applicants, through their counsel, sought a certificate from the court under s. 29 of the Courts of Justice Act, 1924, so as to enable an appeal to be brought to the Supreme Court. The court acceded to the request and framed the point of law in the following terms:-
“Whether the Court of Criminal Appeal, having quashed a conviction of an accused by reason of a failure of the Director of Public Prosecutions to disclose to such accused material pertinent to and which might have been of use in the presentation of his defence, and having determined not to order a retrial, erred in law in refusing to grant a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993, by reason only of the fact that the guilt or innocence of such accused had not been determined by a jury at a trial where the said non-disclosed material had been available to the accused?”
The appeal was duly brought and the Supreme Court, in a unanimous judgment, delivered by Blayney J. and reported in [1997] 2 I.R. 249, allowed the appeal and answered the question submitted to the court by saying that the Court of Criminal Appeal erred in law in refusing to grant a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993, by reason only of the fact that the guilt or innocence of the applicants had not been determined by a jury at a trial where the non-disclosed material had been available to the accused.
In that particular judgment the court gave no guidance as to what would be the correct circumstances in which such a certificate should be granted. But Blayney J. was at pains to point out more than once that the court was not deciding that the Court of Criminal Appeal could not refuse to grant a certificate, but was merely deciding that the reason given by the court for such refusal was a wrong reason. In emphasising that proviso, the court was clearly hinting that any submission to the effect that where there was going to be no retrial, a certificate should automatically issue, would be unsound.
It is on foot of that decision of the Supreme Court that the matter now comes to be remitted to this differently composed Court of Criminal Appeal. Before outlining the evidence and materials which were before this court, it is important to refer to another decision of the Supreme Court, The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225, in which judgments were delivered on the same day. Those judgments have provided this court with much more guidance as to how to approach an application under s. 9. This is because the question certified for decision by the Supreme Court in that case was much wider in its terms. In that case, although the question was much wider, the issue involved was much narrower. Effectively, the applicant had been convicted of capital murder on foot of a remark he had allegedly made to a sergeant whose credibility on another matter was subsequently found to be in issue. The Court of Criminal Appeal (O’Flaherty, Lavan and Morris JJ.) had held that the Act of 1993, did not envisage that in every case where a conviction was quashed a certificate pursuant to s. 9 should issue. In that particular case, the court was finding merely that the newly discovered fact “might” have raised a reasonable doubt in the mind of the Special Criminal Court, resulting in a rejection of the disputed statement. The Supreme Court upheld the view of the Court of Criminal Appeal, but nevertheless permitted a new inquiry because it would not yet have been appreciated what the exact nature and parameters were of an application under s. 9. The two judgments delivered in the Supreme Court in that case, i.e., those of Blayney and Lynch JJ. are extremely important from the point of view of guidance to this court. But it should be noted that, if and insofar as there is any conflict between them, the judgment of the court would appear to be that of Blayney J. The other three judges, i.e., Denham, Barrington and Murphy JJ. agreed with the judgment of Blayney J. It is important to mention this because there is a nuanced difference between the two judgments. Blayney J. was extremely careful to avoid defining”miscarriage of justice”. He observed that it was sufficient to show that the term could not be applied to the facts of that case, a conclusion also reached by the Court of Criminal Appeal. In that case it had been submitted that because the newly discovered fact had not formed part of the original evidence in the trial, the trial was unconstitutional. This submission was not supported by any finding made by the Court of Criminal Appeal and was, at any rate, rejected by the Supreme Court. But it is the next part of Blayney J.’s judgment which is of crucial importance. The relevant passage is as follows at p. 237:-
“Counsel submitted also that now that the applicant’s conviction had been quashed his presumption of innocence had been revived and this was relevant in considering whether there had been a miscarriage of justice. He further submitted that the fact that his client’s presumption of innocence had been rebutted by a constitutionally tainted trial constituted a miscarriage of justice. For the reasons I referred to earlier I am satisfied that the applicant’s trial was not invalid, and on this ground the latter submission must be rejected. As to the submission that the applicant’s presumption of innocence was restored as a result
of his conviction being quashed, I would respectfully agree with what the Court of Criminal Appeal said in its judgment on this point. The presumption of innocence is fundamental to a criminal trial, but an inquiry as to whether a s. 9 certificate should be given is not a criminal trial. It is an inquiry as to whether there has been a miscarriage of justice, the onus of proof being on the applicant and is not a trial in which the onus is on the State to prove the guilt of the accused. The presumption of innocence has no place in such an inquiry.”
It follows therefore that what is now before this court is a civil proceeding with the civil standard of proof and the onus on the applicants, but subject to the qualifications already mentioned. It is important before returning to this case to refer to the judgment of Lynch J. in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225. Lynch J., in somewhat more detail, explains why the s. 9 application is quite different from a criminal proceeding and that it is in the nature of an ordinary civil proceeding in which the presumption of innocence plays no part. Lynch J. then goes on to consider the meaning of “miscarriage of justice”.He says the following at p. 246:-
“The primary meaning of miscarriage of justice in s. 9, sub-s. 1(a)(ii) of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted.”
The use of the word “innocent” in that passage could be ambiguous in that it might mean “innocent” in the popular sense or simply “not guilty” in the legal sense. But it would seem that, in that particular sentence, Lynch J. may well have been referring to the more popular meaning of the word, in that later on in the same page, he specifically approves of the following passage of the judgment of the Court of Criminal Appeal:-
“Where it is established that the applicant was innocent of any involvement in the crime alleged, that would provide ample justification for the granting of a certificate. Further, for example, if in a given case the court were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.”
Lynch J. then goes on to observe at p. 247:-
“The primary meaning of miscarriage of justice is that the applicant for a certificate is on the balance of probabilities as established by relevant and admissible evidence innocent of the offence of which he was convicted.”
However, he also goes on to say that each case must depend on its own particular facts and that the Court of Criminal Appeal would have to decide on those facts whether there had been a miscarriage of justice within the meaning of s. 9.
There would be insuperable problems in this case in the applicants proving, as a matter or probability, that they were innocent in the non-legal or popular sense of that word. This is a case that depended entirely on identification and this court does not believe that the Supreme Court would ever have intended that this court should embark on a full civil trial to determine whether, on foot of the newly discovered facts, the applicants were, as a matter of probability, innocent of any involvement in the events. Counsel for the respondent strongly supported the court’s view that this would not have been intended, and indeed it would seem highly undesirable. On the other hand, the Supreme Court has also held that the earlier Court of Criminal Appeal was wrong in holding that a certificate could not necessarily issue merely because there would be no retrial before a jury. It may have been some foresight of these kinds of pitfalls that led Blayney J., with whom three members of the court agreed, to avoid any definition of “miscarriage of justice”. In addition to holding that it was not intended that there ought to be a new trial before this court, albeit a civil trial, this court also holds the following.
1. The mere possibility, however reasonable, that had the matter gone to a retrial, a jury would have had a reasonable doubt on foot of the newly discovered facts, is not a ground for granting the certificate under s. 9. One simple reason for this is that, in that situation, the applicants would not have established, as a matter ofprobability as distinct from possibility that the newly discovered facts would have led to an acquittal.
2. The court is unable to accept the submission of counsel for the applicants that a miscarriage of justice must necessarily be certified in every case where, had the possibility of a new trial been open, it would not have been appropriate to apply the proviso leading to a dismissal of the appeal and refusal of a new trial. That would be interpreting the rights under s. 9 far too broadly and would seem to come into clear conflict with the views expressed by the Supreme Court, both in The People (Director of Public Prosecutions) v. Meleady (No. 2) [1997] 2 I.R. 249, and in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225. It would also entirely conflict with the concept of a civil onus of proving a miscarriage of justice as a matter of probability.
In all of these circumstances the court is faced with a very difficult task in applying the Act of 1993 to the facts of this case and, indeed, it was not easy to determine what, if any evidence, this court should hear. At the outset an application was made by counsel for the applicants to call not merely the applicants but also Mr. Brendan Walsh and a number of so-called alibi witnesses. This court made a provisional, though not final ruling, that it would be appropriate that the two applicants be called, particularly in view of the fact that neither had been called to give evidence in the second trial, but that they be confined in their evidence to matters relevant to the newly discovered facts apart from being entitled to deny their involvement in the events, their having failed to do so at the second trial. The court also ruled that Mr. Brendan Walsh, who was not called at the second trial, could be called before this court. The provisional ruling was to the further effect that the alibi witnesses would not be permitted to be called. The evidence of the applicants was of some importance in one respect in that they testified on oath that it was on the advice of lawyers that they did not give evidence in the second trial, and this court is satisfied from their evidence that they were ready and willing to give evidence if counsel had permitted them to do so and that the same was true of Mr. Brendan Walsh.
In their evidence each applicant denied any involvement in the incident for which each was convicted and sentenced.
It was agreed on both sides that this court could have regard to a considerable amount of documentary material. This included:-
1. four state files relating to this case;
2. the transcript of the evidence heard before the Court of Criminal Appeal on the last occasion;
3. the transcript of the evidence at the second trial.
There was openness on all sides and there would seem to be little doubt but that, if the court had so wished, it would have been furnished with the transcript of the first trial, and possibly the transcripts of the perjury trials, but that did not prove necessary. It is important to mention these matters because what happened in this particular case may not be a precedent for future cases. There was no dispute as to materials which the court was to be allowed to see and therefore there has never been any determination by this court as to what precisely are the correct materials which should be before a differently composed Court of Criminal Appeal dealing with a s. 9 application from the court that dealt with the s. 2 application.
After the three witnesses had given their evidence there was some discussion about possible further evidence and, if allowed, the necessary postponement of it until the afternoon. In practice good use was made of the time by clarifying the legal issues as seen by both sides. It emerged that a substantial part of counsel for the applicants’ argument, if accepted by this court, would necessarily lead to this court issuing a certificate under s. 9 irrespective of any evidence that might be called on behalf of the respondent. Counsel for the respondent acknowledged that this was so. The court then heard counsel’s arguments for the applicants in this regard and counsel for the respondent’s replies thereto. Having heard them the court again gave an opportunity to counsel for the respondent to call evidence, if he so wished, but he again acknowledged that as to whether he would have to call evidence or not would depend on the view the court took on the arguments put forward by counsel for the applicants and that any such evidence would be superfluous if the court took a particular view on those arguments. The court considered that it was in a position to decide the matter without additional evidence and that any additional evidence would be irrelevant.
Counsel for the applicants made a number of arguments but two essential propositions by him conveniently summarise them. These are:-
1. The trials were unconstitutional trials because of the suppression of essential information which should have been available to the defence.
2. From and after the first trial, if a responsible Director of Public Prosecutions had become aware of the information which is now known in relation to the two matters, i.e. the fingerprint and the Walker memorandum and particularly the combination of the two, he would not have permitted any further trial to take place or alternatively, if such further trial did in fact take place, the identification evidence would have been excluded by the trial judge at a hearing in the absence of the jury commonly known by lawyers as avoir dire, having regard to the discovery of and the conflict of evidence relating to the Walker memorandum.
This court must reject the first of these submissions. The Court of Criminal Appeal, presided over by Egan J. and in which Keane J. delivered the judgment, heard all the relevant witnesses relating to what might be described as the fingerprint error and the Walker memorandum. That court expressly found (at [1995] 2 I.R. 517 at p. 545) that “the failure of the respondent to furnish the defence with the evidence as to the location of the fingerprint was not due to any deliberate attempt on the part of the prosecution to withhold material evidence from the defence.” A question might arise as to whether this differently composed Court of Criminal Appeal is bound by that finding of fact given that, as the Supreme Court has made clear, the s. 9 proceeding is of a different nature. But the court has heard no argument on that issue and it is an issue which does not need to be determined because, of course, this court could not possibly make a finding one way or another without itself hearing all the relevant evidence. For the purposes of this judgment therefore, it is assumed that there was no deliberate attempt to withhold the fingerprint evidence. That being so neither trial could be said to be unconstitutional on that account.
The position concerning the Walker memorandum is slightly different. In that case the earlier Court of Criminal Appeal did not make a definitive finding. As has already been mentioned, the court found it unnecessary to resolve the conflicts of evidence relating to the Walker memorandum. There is nothing on any transcript which would give the slightest credence to any suggestion that there was any deliberate suppression of information by the Chief State Solicitor’s Office, the Office of the Director of Public Prosecutions or any counsel engaged in the case. The question of garda conduct would only come into play if it ever became established that photographs were in fact shown to Mr. Gavin. But there is no finding on this and it would be quite wrong for this court to attempt any such finding and still less to enter into any speculation without hearing every relevant witness. Like the other Court of Criminal Appeal, this court takes the view that, for its purposes, it is not necessary to resolve the conflicts relating to the Walker memorandum. But, in the absence of proof of deliberate suppression of information, this court does not consider that the constitutionality of either of the two trials can be put in question on this account.
It is necessary, therefore, to consider counsel for the applicants’ alternative submission. As has been pointed out, this can be broken into two alternative subsidiary arguments. As the court has formed a very definite view on the second of these, the court does not find it necessary to form a definitive view as to whether a responsible Director of Public Prosecutions would have permitted a further trial to take place if he was in possession of the information now known relating to the fingerprint and the Walker memorandum. There can be little doubt but that the fingerprint issue on its own could not be decisive in that regard. The fact that Mr. Walsh’s fingerprint was found to have been on the inside of the front passenger window by way of an inverse thumb mark high up and in the front and any inferences to be drawn from that fact were peculiarly issues for the jury, as it might still have been open to a jury to find that Mr. Walsh was in the back of the car. The fingerprint, if that was the only newly discovered fact, could not compel a decision by the respondent not to proceed.
The Walker memorandum is a different matter. The respondent would be entitled to take into account the strong and unshakeable evidence of Mr. Gavin on identification and the fact that a trial judge could be relied upon to rule out evidence which should properly be excluded. Unlike the respondent, the judge would have the benefit of arguments from two sides within a voir dire hearing. But this court does not find it necessary to decide this matter as it is firmly of the view that counsel for the applicants is correct in the alternative argument on this submission. The only evidence which implicates the applicants is the evidence of the identifications in Rathfarnham courthouse. If that evidence were excluded by the trial judge, it is conceded by the respondent that there would be no evidence against the accused. If this court is satisfied that, as a matter of probability, that would have happened then the applicants have discharged the civil onus of showing that there was a miscarriage of justice within the intent of the Supreme Court judgments. It is therefore now necessary to consider whether the identification evidence by the Gavins in Rathfarnham District Court would have been excluded by a trial judge in a voir dire?
It is well established that, although there is no authority to permit a criminal court to admit, as a matter of discretion, evidence which is inadmissible under an exclusionary rule of law, the converse is not the case. A judge, as part of his inherent power, has an overriding duty in every case to ensure that the accused receives a fair trial and always has a discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value. Counsel for the respondent referred the court to the famous reference to that discretion, given by Lord du Parcq, in the advice of the British Privy Council in Noor Mohamed v. R. [1949] A.C. 182. That was an instance of the obvious example where the prejudicial effect of fairly trivial and only barely admissible evidence may be weighed against the probative value. In this particular case there is no question of a quantitative comparison. Obviously, evidence of identification in Rathfarnham District Court is substantial evidence. But if there was a real danger that Mr. Gavin senior had been shown photographs before the identification it would be right to exclude it. This court is of the view that any trial judge in such a voir dire would, on the present information, have to form a view that there was a danger, notwithstanding the denial by Mr. Gavin that photographs were shown to him. Given that neither Mr. Walker nor anybody from the Director of Public Prosecutions Office or anywhere else is able to give any plausible explanation for the existence and contents of the Walker memorandum, which could be consistent with no such photographs having been shown, this court is of the view that a trial judge would consider it unsafe to allow the identification evidence by Mr. Gavin senior in Rathfarnham District Court to go to a jury. Counsel for the applicants concedes that there would be nothing wrong in principle with identification evidence based on photographs, but that case has never been made. Far from it: Mr. Gavin, Sergeant Thornton and all the apparently relevant gardaà deny that photographs were ever shown to Mr. Gavin. Unlike the issue of the fingerprint which is clearly a jury issue, it would seem to this court to be completely inappropriate that a jury should be left to decide and effectively speculate as to whether possibly there could be some alternative explanation for Mr. Walker’s memorandum, which was consistent with the evidence of Mr. Gavin. There is, however, a further point which this court has to consider. There is no suggestion in the Walker memorandum that the photographs were shown to Mr. Gavin’s son who made an identification of one of the applicants in Rathfarnham District Court. But the court considers that the case could not be allowed to go to the jury on his identification evidence only, as it was done on the same morning and in the same place as the purported identification by his father and in circumstances where there would have been plenty of opportunity for conversation between himself and his father, between taking him out from school and bringing him to the courthouse. Counsel for the applicants argues that the two separate pieces of identification evidence, that of the father and the son, are so inextricably bound up in time and place that if the father’s evidence was to be excluded the same exclusion would have to apply to the son’s, even though there is no evidence suggesting that he might have been shown photographs. The court accepts this submission. The court considers that a trial judge in a voir dire would have to exclude all the identification evidence. There would then be no evidence against the applicants that could go to a jury. In these circumstances, one of the newly discovered facts, that is to say the Walker memorandum, shows that there has been a miscarriage of justice. The court will certify accordingly.
In case there could be any ambiguity, some matters should be made crystal clear. The court is not making any finding one way or another as to whether the applicants were in fact innocent of actual involvement in the events. That kind of innocence would not even have been proved as a result of an acquittal by a jury. There could easily be cases where, because of a newly discovered fact, such as for instance that there had clearly been some mistaken identity in relation to an accused, in that, say the wrong John Murphy had been prosecuted, Lynch J.’s primary example of miscarriage of justice would come into play. It would be clear that the applicant for the certificate under s. 9 had no involvement in the events at all. But it is equally clear that the Supreme Court was not intending to confine cases of “miscarriage of justice” to that type of situation.
Secondly, this court is not making any finding and, indeed, for the reasons already given, it could not make any finding as to the truth or otherwise of the contents of the Walker memorandum. All this court is saying is that a trial judge confronted with that memorandum and taking into account the context in which it came to be in existence would be bound to hold that there was a real danger that its contents were true, a matter which would appear to be incapable of resolution by a jury. That view would have to be taken, assuming that the evidence before the trial judge was the same as the evidence that was before the Court of Criminal Appeal, presided over by Egan J.
From the point of view of Mr. Gavin, the history of this case has been most unfortunate. He was the victim of a horrendous crime and the court can have nothing but sympathy for him. But, as he will hopefully appreciate, the exercise with which this court is concerned under the Criminal Procedure Act, 1993, is whether newly discovered facts are tantamount to proving a miscarriage of justice and that is not confined to the question of actual innocence but extends to the administration in a given case of the justice system itself.
People (DPP) v Laide and Ryan (No.2)
unreported, Court of Criminal Appeal, June 29, 2005
Supplementary judgment of the Court delivered on the 29th day of June 2005 by McCracken J.
___________________________________________________________
Mr Michael O’Higgins SC on behalf of Dermot Laide (hereinafter called “the Appellant”) has addressed the Court on two matters arising out of the judgment of this Court delivered on 24th February 2005. Firstly, he seeks to argue that the order of the Court, which has not yet been finally perfected, should not order the retrial of the Appellant on the charge of manslaughter, and secondly, should he fail in this application, he seeks an order pursuant to s.29 of the Courts of Justice Act 1924 certifying that the decision of this Court involved a point of law of exceptional public importance and for this reason permitting an appeal to the Supreme Court. The Court proposes to deal with each of these points separately.
Reconsidering a Retrial
Mr O’Higgins makes it quite clear, as he must, that he is not re-opening the appeal, is not making fresh arguments and is not revisiting the substantive decision that the conviction was unsafe. However, he submits that the ordering of a retrial is an ancillary or consequential order, which the Court would not have made had it considered all the arguments put forward on behalf of the Appellant. In particular, he submits that on a proper construction of the indictment, the Appellant could only be convicted of manslaughter on the basis of common design between the four original accused.
He is perfectly correct in arguing that this Court did not rule on that point, on the basis that the manslaughter charge was being set aside in any event. However, the Court did comment on this point and said:-
“However, as the concept of common design was clearly explained to the jury, the Court feels it probable, primarily because of the fact that only Dermot Laide was convicted of manslaughter, that the jury did not convict him on the basis of common design, but on the basis of his own actions.”
In any event, the Court does not accept the submission that the ordering of a retrial in an ancillary or consequential order. Section 3(1) of the Criminal Procedure Act 1993 sets out four options open to the Court on the hearing of an appeal against conviction, two of which are:-
“(b) Quash the conviction and make no further order, or
(c) quash the conviction and order the applicant to be retried for the offence.”
The jurisdiction of the Court of Criminal Appeal derives solely from statute and the orders which the Court is empowered to make are those set out in s.3(1). It is quite clear that the statute offers alternatives to the Court, either to quash the conviction simpliciter or to quash the conviction and order a retrial. Specifically, the section does not empower the Court to quash a conviction and subsequently consider the question of a retrial. The ordering of a retrial is a part of the substantive order of the Court.
At the hearing of an appeal against conviction, it is always open to the appellant to argue before the Court which of these remedies is appropriate. It was open to the Appellant to do so in the present case, and accordingly he was not precluded in any way from making the arguments which it is sought to make at the supplementary hearing.
There are circumstances in which a Court may have an inherent jurisdiction to set aside or vary what appears to be a final order. This may arise under the “slip rule” where there has been a manifest error in drawing up the terms of the order, and it may also arise where the Court has been mislead, either innocently or deliberately, as to the factual background of the case, or where the order does not accurately reflect the judgment of the Court. None of these considerations arise in the present case. There are also circumstances where natural justice may require the reconsideration of a decision or an order. In this regard the Court will adopt the passage from the judgment of Denham J in in Re Greendale Developments Ltd (No. 3) [2000] 2 IR 514 where she said at page 544:-
“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such a jurisdiction exercised. It would only be in the most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”
The Court considers that this principle applies equally to the Court of Criminal Appeal.
In the present case it could not possibly be said that there has been any breach of any constitutional rights of the Appellant. As the Appellant has not brought himself within any of the recognisable grounds to seek to have the matter revisited, this Court will not entertain any further arguments as to the decision to direct a retrial.
Section 29 Certificate
The right of an accused whose conviction has been overturned by the Court of Criminal Appeal and a retrial ordered to seek a further appeal under s.29 was considered recently by the Supreme Court in The People (Director of Public Prosecutions) v Campbell [2004] 2 ILRM 412. In that case the applicant had been convicted before the Special Criminal Court of membership of an unlawful organisation. He applied to the Court of Criminal Appeal for leave to appeal against conviction and sentence. The Court of Criminal Appeal allowed the appeal, quashed the conviction and ordered a retrial on the ground that a particular line of cross-examination should not have been permitted by the Court. The applicant had also sought to rely in the Court of Criminal Appeal on the question of whether the “Real IRA” was a proscribed organisation. The Court of Criminal Appeal granted a certificate pursuant to s.29 raising the point of law of exceptional public importance as:-
“Does the Unlawful Organisation (Suppression) Order (SRO No.162 of 1939) issued in 1939, pursuant to section 19 of the Offences Against the State Act 1939, have application to an organisation which came into existence in or about the year 1997?”
The Supreme Court considered as a preliminary point whether it had any jurisdiction under s.29 to consider this point of law. The Supreme Court had already decided in The People (Director of Public Prosecutions) v O’Callaghan [2004] 1 ILRM 438 that there could be no appeal by the prosecution where the Court set aside the conviction and ordered a retrial. In giving his decision in the Campbell case Keane CJ said at page 417:-
“The appeal permitted by section 29 to this Court is from the “determination” by the Court of Criminal Appeal of an appeal or other matters. It is only permitted where the “decision” involves a point of law of exceptional public importance. The word “determination” clearly connotes the result of the appeal to the Court of Criminal Appeal, i.e. in this case the allowing of the appeal, the quashing of the conviction and the ordering of a retrial. If the words in the section are given their ordinary and natural meaning, as they should be, it is difficult to infer from them an intention on the part of the Oireachtas that an accused person was being given a right of “appeal” to this Court from a determination by the Court of Criminal Appeal which was in his favour. Thus, the applicant in this case does not challenge the decision of the Court of Criminal Appeal to quash the conviction and order a retrial on another ground, a posture which is wholly impossible to reconcile with what normally happens, and must have been envisaged by the legislature to happen, on the hearing of an appeal. The applicant, in effect, seeks to obtain from this Court a finding that the law on the certified point is not as stated in the judgment of the Court of Criminal Appeal now purportedly under appeal. The Special Criminal Court would then be bound to apply the law as so found by this Court in the retrial already ordered.
That, however, is precisely the course which, in the passage I have already cited from my judgment in People (DPP) v O’Callaghan, was described as the exercise by this Court of a form of consultative jurisdiction with which it had not been endowed by the Oireachtas. It is clear that this also applied to the course urged upon us by the applicant in this case.”
In that case the Supreme Court expressed some sympathy with the position of the applicant who was attempting to have a point of considerable legal significance determined by the Supreme Court, rather than have it determined on a retrial with the prospect of further appeals. The Court held that it had no jurisdiction to determine the point of law involved. Keane CJ ended his judgment at page 418 with the unequivocal statement:-
“I am satisfied that section 29 of the Courts of Justice Act 1924 conferred no such right of appeal on an applicant where his conviction had been quashed and a retrial ordered by the Court of Criminal Appeal.”
Fennelly J in a short concurring judgment at page 418 said:-
“I entirely agree with the Chief Justice that s.29 of the Courts of Justice Act 1924 confess no jurisdiction on this Court to entertain an appeal from a determination of the Court of Criminal Appeal which allows an appeal.”
He went on to comment that “This result is unfortunate and undesirable”.
This Court also has some sympathy for the Appellant, but what he is seeking to have decided by the Supreme Court is whether the charge against him, by reason of the way it is worded, necessarily requires common design as an essential ingredient of the offence. He argues that if such an ingredient is required, it is not present and cannot be present because the other persons with whom a common design was alleged have all been acquitted of manslaughter. He argues that in those circumstances he could not be convicted on a retrial and therefore no retrial should be ordered.
This Court cannot see how the present case can be distinguished from Campbell. Having expressed some sympathy for the applicant in that case, Keane CJ said at page 418:-
“Those considerations, however, cannot justify the Court in attributing to the legislature an intention to confer a right of appeal by section 29 which is plainly outside the ambit of the section as enacted.”
It appears to this Court that that judgment, which is binding on this Court, quite clearly states that there is no jurisdiction under s.29 to certify a point of law on any grounds whatever where the Court of Criminal Appeal has set aside a conviction and ordered a retrial. Accordingly it appears to this Court that it has no jurisdiction to make the order sought.
The Court of Criminal Appeal is a creature of Statute, and its powers are circumscribed by Statute. It is, however, always open to the Oireachtas to extend those powers by amending legislation.
The People (Director of Public Prosecutions) v. Shortt (No. 2)
[2002] 2 IR 699
Court of Criminal Appeal 699
C.C.A.
Hardiman J.
31st July, 2002
[Hardiman J. set out in detail the evidence in the case which is summarised as follows:-
The applicant was convicted of certain offences in Dublin Circuit Court (Buchanan J. and a jury) on the 28th February, 1995 and was sentenced to three years imprisonment and fined £10,000. The applicant served his sentence less statutory remission. On the 2nd December, 1999, the applicant filed a notice of appeal pursuant to s. 2 of the Criminal Procedure Act, 1993, seeking to quash his conviction on the grounds that newly discovered material constituted a miscarriage of justice.
On the 20th November, 2000, counsel for the respondent told the court there was no opposition to the quashing of conviction on the grounds that certain new matters constituted newly discovered material within the meaning of s. 2 of the Act of 1993. The respondent did not seek an order directing a retrial.
The applicant then brought the present application to the court pursuant to s. 9(1) of the Act of 1993, to certify that the newly discovered material constituted a miscarriage of justice.
Under the Criminal Procedure Act, 1967, the applicant was returned for trial to the Circuit Court following service of the book of evidence. A significant part of the applicant’s case centres on a notice of additional evidence served on the 4th October, 1994.
The advice on proofs prepared by counsel for the respondent outlined weaknesses in the case. It revealed insufficient evidence to put the applicant on trial. It outlined concerns that the applicant was not present when the drugs were allegedly changing hands. It also raised concerns that the applicant did not know what was going on in his premises. The principle prosecution witness was a detective garda. His original statements focused on the fact that drug dealing took place on the premises rather than that the applicant was aware of the dealing.
In response to the advice on proofs, the principal prosecution witness prepared a second statement. This was done with the help of a superintendent who annotated the original principal prosecution witness’s statement. This was done in order to expand the statement. The amended statement included specific references to the applicant being present when drugs were sold. Amending the statement transformed the case from a very weak case to a strong case and, in particular, alleged for the first time that the applicant was present in the premises when the drugs were being sold. The amended statement was served on the applicant in early October, 1994. This was the evidence that the respondent relied on at the trial of the action in the Circuit Court.
At the trial of the action, the principal prosecution witness gave evidence that he attended the applicant’s premises on a number of occasions during the summer of 1992, where people were openly dealing in what appeared to be drugs. He had purchased some of the material, which later transpired to be controlled drugs. He stated the transactions were clearly visible by the applicant.
The applicant had complained to the garda about their constant visits to his premises and faxed a letter to the garda to that effect. The garda subsequently visited the applicant’s premises and discussed the drugs problem. The possibility of undercover garda was raised. At the trial, the applicant argued that he had reached an agreement with the garda to the effect that undercover garda would be placed in the premises. The applicant acknowledged that he saw suspicious transactions but he did not interfere as he believed it to be garda acting undercover].
Hardiman J. continued.
Newly discovered material
It has already been recorded that the applicant, when he first brought his application under s. 2 of the Act of 1993, was aware only of rumours and allegations in relation to the principal prosecution witness. It must also be said that these rumours were pervasive, serious and widely discussed. In the main, however, they had nothing to do with the applicant’s case. As regards this case, their general tendency (if accepted as true) would have been to undermine the credibility, in general of the principal prosecution witness.
In the course of the subsequent Carty inquiry into the matter, however, new and far more specific material came to light. It must unfortunately be recorded that the significance of the most dramatic part of this new material, listed below at item one, does not appear to have been appreciated by the investigators and it was not produced to this court until a very late stage. The newly discovered items appear to us to be the following:-
(1) The allegations of the principal prosecution witness’s estranged wife especially that, the principal prosecution witness had told her that he perjured himself at the trial of the applicant. The alleged context of this revelation was the principal prosecution witness’s alleged anger and disappointment when a superintendent got a divisional policing award, in respect of his direction of the applicant’s premises raid, which he (the principal prosecution witness) had expected;
(2) The evidence of Adrienne McGlinchey to the effect that she was given money to purchase drugs, and asked by the principal prosecution witness to plant the drugs at defined places in the applicant’s premises. This was either to take place on the night of a raid, so that the garda would be in a position to “find” them, or to purportedly buy them from dealers on other nights. This was arranged, allegedly, on the basis that it might be difficult to retrieve any drugs in the possession of actual dealers or customers because they might be swallowed, thrown into a large open fire which was a feature of the premises, or flushed away. Ms. McGlinchey said that she agreed to do this but failed to turn up to act her part in the context later described in evidence. She claimed that she was later told by the principal prosecution witness that drugs had in fact been planted for him by persons whom he allegedly named. The Carty Inquiry recorded a similar allegation as being made by Adrienne McGlinchey, with the vital difference that they stated that she told them that she had actually planted the drugs. The memorandum containing this allegation was not signed by her or tendered for signature;
(3) The foregoing allegation was put to the principal prosecution witness in the course of one his numerous interviews by the Carty team. This occurred during a lengthy interview at the principal prosecution witness’s home on the 25th February, 2000, where the following was put to him:-
“She, Adrienne McGlinchey, alleges that you were unable to buy drugs in the applicant’s premises and that you had got her to buy drugs and she gave them to you before you went on surveillance duty to the applicant’s premises. When you came out she alleges that you told your authorities that you had purchased the drugs of another person. She also alleged that you used a couple of other people to dump drugs at the applicant’s premises.”
The principal prosecution witness replied, “she was never in the applicant’s premises she was supposed to go there but she never went.” Very regrettably, this dramatic statement was not followed up by the investigators. Instead, the State’s case at the beginning of the present hearing was that Adrienne McGlinchey had no involvement whatever with the applicant’s premises investigation;
(4) In the course of the hearing, the principal prosecution witness made two further written statements about Adrienne McGlinchey’s involvement. In the first of these he stated that she had”volunteered,” after the raid of the 2nd August to go into the applicant’s premises and identify drug dealers. The principal prosecution witness said that he did not need any further information. In the course of cross-examination he for the first time conceded that she was aware of the applicant’s premises operation before the raid, stating that he had to tell her because his duties in relation to the applicant’s premises meant that he was unavailable to meet her on other business on successive Sunday nights. In further cross-examination, he stated that he had also detailed the applicant’s premises operation for her before the raid in order that she could discover from her sources in the Irish Republican Army whether that body was interested in the premises.
It must be appreciated that the existence of an alleged role of Adrienne McGlinchey in relation to the applicant’s premises was quite unknown to the applicant and presumably to the respondent as well, at the time of the trial. Adrienne McGlinchey, a member of a well known Donegal family had for some years been acting as a
provider of information about certain subversion linked matters to the garda. She was highly relevant to the Carty Inquiry because of allegations that she, together with other individuals, had planted terrorist material in certain places. She claimed the garda then purported to have found this material. She made further dramatic claims of this general nature. The garda, for their part, confirmed that she had been a provider of information and had been considered reliable. The great bulk of the evidence of Adrienne McGlinchey is irrelevant to the present hearing except on questions of her credibility.
On the 13th September, 1999, as part of the Carty Inquiry, the home of the principal prosecution witness was searched under warrant. This search produced the next series of items capable of being new or newly discovered facts. They are:-
(a) a number of loose sheets of paper with the principal prosecution witness’s handwriting on them dealing exclusively with events at the applicant’s premises from June to September, 1992. They outline the visits and alleged observations of the principal prosecution witness to the premises on each date. They were, however, found in confused chronological order;
(b) the draft of the principle prosecution witness’s second statement with the annotations by a superintendent;
(c) the advice on proofs;
it may be significant that all these documents were found together;
(d) the letter of satisfaction:-
This document exists in two different forms. The first is a typewritten letter by the principal prosecution witness. The second is a handwritten draft by a superintendent. In each form, the general nature of the contents is a strong endorsement of the superintendent and the principal prosecution witness. Both documents appear to date from the year 1996. The significance of statements such as:-
“I do not have anything whatsoever against [the] superintendent … I do not know anything that would endanger his career or that I could say about him to endanger his career,”
and in the superintendent’s draft:-
“I have never known the superintendent, while in any rank, to take part in or authorise either accompanied by me or otherwise:-
(i) any unlawful activity or operation;
(ii) to act illegally during the course of duty or off duty;
(iii) to act illegally while participating in any operation.”
These were discussed in the course of the present hearing.
(5) The next significant document to come to light was a handwritten list in the principal prosecution witness’s handwriting entitled”general.” It appears that this is a list of the concerns which may have prompted the writing of the two last mentioned documents. The fifth item on it is “applicant’s premisesetc. etc.” The court regards the three last mentioned documents as wholly extraordinary ones. The circumstances in which they are alleged to have come into existence, detailed below, are equally extraordinary.
(6) Part of the case against the applicant at the trial, it will be remembered, was the alleged recovery of pre-marked notes from a drug dealer. It was alleged that the principal prosecution witness had given the drug dealer two sterling ten pound notes, already marked by him, in exchange for drugs on the night of the 2nd and 3rd August. These notes were allegedly recovered by the principal prosecution witness from the drug dealer’s property in the garda station on the afternoon of the 3rd August. The difficulty with this evidence was that the drug dealer was searched on the night and no such notes were found. The drug dealer made a statement which was included in the book of evidence to the effect that he had given the notes away, immediately after getting them, in order to get the drugs which he supplied to the principal prosecution witness. It transpired in the course of the hearing of this application that the custody record of the drug dealer, which would have recorded what property he had on him on arrival at the Garda Station, is missing.
(7) The principal prosecution witness’s estranged wife also gave evidence in relation to the meeting in their household in September, 1992. She claims that the superintendent was in possession of the principal prosecution witness’s note book, a document in which she could see there was red writing. He was present when the statement was being prepared by another garda, on the computer and alleges that the superintendent was giving instructions to the effect that some things were to be put in and others were to be left out.
(8) A four page document in the principal prosecution witness’s handwriting, which contained the words, “applicant’s premises, perjury, set up, advice on proofs and the superintendent had my note book.”
(9) Three sides of note paper again in the principal prosecution witness’s handwriting of which he had made certain notations. This was described by him as “a matrimonial thing.” The principal significance of it appears to be the words,”the applicant’s premises, merit award and tout” all appear on the same line and appear to be linked. The term “tout”was applied by certain garda to Adrienne McGlinchey.
[Hardiman J. continued to set out in detail the evidence and findings of fact summarised as follows:-
The newly discovered notes were found as a result of a search at the principal prosecution witness’s premises in September, 2000. The contents of the notes were important in relation to the presence of the applicant when the drug dealing was taking place. The newly discovered documents were deliberately concealed at the trial of the action in the Circuit Court and these were vital to the line of cross-examination being pursued by the defence. This was clear to the principal prosecution witness and the superintendent. The court believed that the issue whether the applicant witnessed the drug transactions was central to the trial in the Circuit Court.
The court emphasised that, in criminal proceedings, the prosecution was entitled to furnish new material, if appropriate. This may often happen after the advice on proofs was supplied as many items of significance may not occur to the investigating garda. If the newly discovered documents were produced at the trial of the action, it would have seriously damaged the credibility of the principal prosecution witness.
The principal prosecution witness’s estranged wife gave evidence which was accepted by the court. She stated that the principal prosecution witness told her that he perjured himself at the Circuit Court trial and he was upset that the applicant had received three years imprisonment. He was annoyed because a superintendent got an award for the work on the applicant’s case, an award which he had expected to get.
The principal prosecution witness’s estranged wife gave evidence in relation to a meeting which took place in her home. On that occasion the principal prosecution witness had called the superintendent about an issue relating to the water supply on the applicant’s premises. The superintendent called to the principal prosecution witness’s house to help with this. The court accepted that it was probable that the superintendent’s visit was sparked by this. At the meeting the superintendent was reading from a document and was making suggestions of what to put in and leave out. She recalled seeing red writing on the document. The meeting in the house and subsequent meeting between the principal prosecution witness and the superintendent were in the context of preparing the additional statement. The court believed that, having read the advice on proofs, the superintendent was determined to strengthen the case to get a conviction. The principle purpose of the superintendent’s visit to the principal prosecution witness home was for the purpose of fine tuning the additions to the statement. This annotated statement was not produced at the Circuit Court trial.
At the trial, the principal prosecution witness was pressed as to how the second statement came about. He made no mention of the annotated statements. The court believed that the notes were not destroyed because of the strained relationship between the superintendent and the principal prosecution witness especially after the allocation of the policing prize to the superintendent. This was consistent with the word on one of the newly discovered documents, which contained the words “superintendent shafting me.”
The most remarkable document to come to light was described as the”letter of satisfaction.” The letter existed in two forms. In the principal prosecution witness’s form it was a denial that he had any information which was prejudicial to the career of the superintendent. The superintendent’s draft was similar but more detailed. The superintendent undertook at a meeting to formulate a report outlining the background to the letter. The letter set out a number of disputes between the superintendent and a sergeant. The letter recorded that the superintendent told the sergeant that he believed the principal prosecution witness was drinking on duty. Later the sergeant said he would bring the principal prosecution witness drinking and he would get him to say things, which were not good for the superintendent’s rank. The superintendent called the principal prosecution witness into his office where the witness wrote the “letter of satisfaction.” The superintendent believed the principal prosecution witness’s draft lacked detail and, accordingly, the superintendent prepared a draft which stated that, the principal prosecution witness had never known the superintendent to act unlawfully in the course of any garda operation. The superintendent gave evidence that he believed that the sergeant had power over the principal prosecution witness and could persuade him to make false allegations. The court believed the letters demonstrated that the garda were very concerned about the applicant’s prosecution almost four years after the operation.
There was no material in the newly discovered notes to suggest that the applicant was present during the drug transactions. The court analysed the evidence in the newly discovered notes, the original notes taken shortly after the raid, the statements annotated by the superintendent and the evidence of the principal prosecution witness at the trial in the Circuit Court. The court highlighted various instances where the records of the principal prosecution witness varied in relation to whether the applicant was present while the drug dealing took place. The court looked particularly at the 12th July, 1992. In the principal prosecution witness’s original notes and the newly discovered notes there was no mention that the applicant was present. However, in the statement annotated by the superintendent and the principal prosecution witness’s evidence at the trial it was suggested that the applicant was present and witnessed the drug dealing. The court believed that the principal prosecution witness was an experienced detective and was unlikely to omit from his original notes the fact the applicant was present during the drug dealing.
The respondent argued that as another member of the garda witnessed the drug transactions involving the principal prosecution witness, this established there was no miscarriage of justice. However, this garda’s evidence was similar to that of the principal prosecution witness. The garda’s original statement in the book of evidence had no evidence that the applicant was present when the transactions were taking place. This garda’s second statement contained allegations that the applicant was present during the transactions. The court felt it could not isolate this garda’s evidence from that of the principal prosecution witness to show there was no miscarriage of justice].
Hardiman J. continued.
Legal submissions
Each party made extensive legal submissions, both orally and in writing.
These are most conveniently introduced by starting with one of the important submissions advanced by counsel for the applicant.
Counsel for the applicant laid great emphasis on the fact that, as we have seen, the applicant’s conviction was quashed without opposition from the respondent on the 20th November, 2000. In order to bring the application at all, the applicant had to allege, in the words of s. 2(1)(b) of the Act of 1993, “that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction.” Since this was the basis of the application and, since the application was conceded without opposition, counsel for the applicant argued, it must follow that the quashing of the conviction necessarily implied that there had been a miscarriage of justice.
Apart from this argument based on a close construction of the words of the statute, counsel for the applicant put his point in another way. He said that, on the quashing of the conviction, the applicant’s presumption of innocence revived. For this proposition he relied on the judgment delivered by me in J.O’C. v. Director of Public Prosecutions [2000] 3 I.R. 478. Since the applicant was presumed to be innocent and since he was nevertheless convicted, his conviction is, therefore, a miscarriage of justice.
Counsel for the applicant was not unaware that both of these arguments are subject to the enormous difficulty that they seem contrary to the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225. They are also contrary, in varying degrees, to the decision of the Court of Criminal Appeal in that case, reported in the same place and to that of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517. The Supreme Court at p. 237 of the People (Director of Public Prosecutions) v. Pringle (No. 2) held:-
“The presumption of innocence is fundamental to a criminal trial, but an inquiry as to whether a s. 9 certificate should be given is not a criminal trial. It is an inquiry as to whether there has been a miscarriage of justice, the onus of proof being on the applicant, and is not a trial in which the onus is on the State to prove the guilt of the [applicant]. The presumption of innocence has no place in such an inquiry.”
In The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517, the Court of Criminal Appeal held that although an applicant under s. 2 is required to allege that a new or newly discovered fact showed that there had been a miscarriage of justice, he did not have to prove this in order to have his conviction quashed. It was sufficient for him to point to material, which, if it had been available to the court of trial might, but not necessarily would, have raised reasonable doubt in the minds of the jury. Accordingly, a certificate of miscarriage of justice under s. 9 (at p. 539) “… could not be the automatic consequence of an order quashing the conviction … since such an order, whether made under s. 2 or otherwise, could be made on the ground that a miscarriage of justice might have occurred but had not necessarily occurred.”
In the course of the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecution) v. Meleady [1995] 2 I.R. 517 at p. 541, Keane J. stated that:-
“It may be regarded as curious draftmanship to require an applicant under s. 2 to allege newly discovered facts to show that there has been a miscarriage of justice in relation to the conviction without requiring him or her to satisfy the court that the allegation is well founded as a precondition to the court exercising its jurisdiction under s. 3 to quash the conviction.”
This court respectfully agrees with that comment, but the interpretation set out in that case is undoubtedly in ease of the applicant at least in so far as it establishes a lower hurdle in an application pursuant to s. 2 than would otherwise be the case.
This court does not believe that it is open to us to revisit what was authoritatively decided in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225. We are not unmindful that counsel for the applicant sought to distinguish that decision, and others to the same effect, by advancing an argument more nuanced than had, apparently, been advanced there. Specifically, counsel for the applicant argued that the necessary implication that a certificate should follow the quashing of a conviction under s. 3 following an application under s. 2, arose only when that event took place by reason of “newly discovered,” as opposed to”new” facts. This, in turn, might be regarded as resulting from a legislative intention to provide an entitlement to compensation in one case but not in the other. The court, on an application under s. 9, could certify a miscarriage of justice only on the basis of newly discovered facts.
We are not convinced that this is sufficient ground to distinguish the authoritative principles established in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225. The substantial basis in principle of that decision is stated at p. 236. An applicant whose application under s. 2 is successful should not be in a more favourable position, from the point of view of obtaining compensation, than “any other applicant whose conviction has been quashed in an appeal brought under the section in accordance with the normal appeal procedure.” It might be argued that there is no invidious distinction since an applicant under the normal appeal procedure is not required to allege a miscarriage of justice. But that distinction did not find favour with the Supreme Court. While acknowledging the sophistication and attractiveness of counsel for the applicant’s argument, we consider that we are bound by The People (Director of Public Prosecutions) v. Pringle (No. 2) to reject it. The same applies to the alternative argument based on the presumption of innocence. This is supported by the judgment mentioned in J.O’C. v. Director of Public Prosecutions [2000] 3 I.R. 478 and the Irish and English authorities cited therein. But that, in turn, was a minority judgment and cannot successfully be relied on against express findings in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225.
Miscarriage of justice
This phrase has not been exhaustively defined in any of the Irish cases. In The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225 at p. 235, Blayney J. said “the (Court of Criminal Appeal) did not attempt an exhaustive definition of the term ‘miscarriage of justice’ and in my view this court should not attempt such a definition either”.
The matter is further complicated by the fact that, in the Act of 1993, the phrase “miscarriage of justice” is found in three separate locations, two of which are in ss. 2 and 9. The third is in s. 3, in the restatement of the so called”proviso,”: this is in s. 3(1)(a) which provides that the court may, “affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the applicant, if it considers that no miscarriage of justice has actually occurred).”
Notwithstanding that all these uses of the phrase are tightly grouped in the Act of 1993, the respondent here submits that they should not be interpreted in the same manner. This is on the basis that,”proceedings under s. 9 are separate from those under s. 2 and are in the nature of a civil action for compensation.”
It is well established that, “where it is established that the applicant was innocent of any involvement in the crime alleged, that would provide ample justification for the granting of a certificate. Further, for example, if in a given case the court were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue” (per O’Flaherty J. in The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225 at p. 230).
Those narrow boundaries are, perhaps, expanded in the judgment of this court in The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16. Geoghegan J. stated at p.33:-
“… the exercise with which this court is concerned under the Criminal Procedure Act, 1993, is whether newly discovered facts are tantamount to proving a miscarriage of justice and that is not confined to the question of actual innocence but extends to the administration in a given case of the justice system itself.”
This is because, in many cases, it would be quite impossible for an applicant affirmatively to demonstrate his innocence in the ordinary sense of that term. In The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16, a certificate of miscarriage of justice was in fact granted but the court said at p. 32:-
“In case there could be any ambiguity, some matters should be made crystal clear. The court is not making any finding one way or the other as to whether the applicants were in fact innocent of actual involvement in the events. That kind of innocence would not even have been proved a result of an acquittal by a jury. There could easily be cases … where it would be clear that the applicant for the certificate under s. 9 had no involvement in the events at all. But it is equally clear that the Supreme Court was not intending to confine cases of miscarriage of justice to that type of situation.”
In the case just quoted, a certificate under s. 9 was issued because the court arrived at the conclusion that, if the newly discovered facts had been known at the time of the trial, the judge would as a matter of probability have excluded evidence of identification which was the only evidence against the applicants there. Therefore, they were viewed as having discharged the civil onus on them of showing that there was a miscarriage of justice.
It is not possible to find that this case is on all fours with The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16. The issue is not as simple since there was other evidence, in the additional statement, admittedly somewhat general and tenuous, as to the course of business conducted in the applicant’s premises which might have led to a conviction. It is, accordingly, necessary to consider the effect of our findings, above, in light of the provisions of the Act of 1993.
The findings in context
The court has held that a number of documents, the half sheet notes and the annotated statement, were deliberately concealed at the trial by two garda. Furthermore, if these documents had been produced at trial they would have been severely damaging to the credibility of the primary prosecution witness. The principal prosecution witness, a garda, said after the trial that he had perjured himself in his evidence and the court has found, specifically, that his account in evidence of the genesis of his second statement was false. The court has also found that the suppressed documents were important, and their importance must have been clear to the relevant garda during the trial. The annotated statement, in particular, was quite inconsistent with a significant aspect of the principal prosecution witness’s evidence.
All of these matters, we believe, relate “to the administration in a given case of the justice system itself” as the Court of Criminal Appeal expressed it in The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16. In that case, however, the court expressly did not find that the newly discovered material had been deliberately suppressed. That is precisely the finding this court has made in the applicant’s case. Nor was this suppression merely passive. It involved giving an answer which was, at best, seriously incomplete to a question which, answered with the whole truth, would have revealed the concealed material. This was, to use no stronger language, a grave defect in the administration of justice in this particular case, brought about by agents of the State. We find that this led to a miscarriage of justice in the trial of the applicant. We do not believe that this finding extends the meaning of the phrase “miscarriage of justice” beyond that contemplated in The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16.
Grounds of application
We have already seen, in the section of this judgment relating to the evidence of Adrienne McGlinchey, that the respondent submits, apart from anything else, that the application must fail because the original application under s. 2 was brought and was unopposed by the respondent, “in relation to this potential evidence of Ms. McGlinchey (which) has now been established to be wholly unreliable …”
The court can see no substance in this submission. The respondent pre-empted the hearing of the application under s. 2 by consenting to it being granted. He did so shortly after the applicant’s advisers had inspected the discovery documentation. It is inconceivable that this process would not have led to an expansion of the grounds of appeal, had the respondent not consented to the appeal being allowed. The respondent reason for so consenting have never been clear and are not clarified by the following paragraph in his written submissions:-
“The alleged newly discovered fact is the existence of the allegation not its truth or otherwise which allegation has now been found to be unreliable and been retracted by Ms. McGlinchey.”
With respect, the mere existence of a newly discovered fact in relation to a trial is, both in law and logic, incapable in itself of leading to a successful result. The newly discovered fact may be irrelevant or of only slight relevance, it may leave untouched a compelling body of incriminating evidence. It is not sufficient for an applicant simply to plead that there is a newly discovered fact. He must go on to plead that it shows there has been a miscarriage of justice. The circumstances of this case make it undesirable, if it is not necessary, to resolve the conflicts surrounding the evidence of Adrienne McGlinchey. It is indisputable, however, that had Ms. McGlinchey not said what she did, the process which led to the discovery of other, unquestionably significant, facts relating to this conviction would not have started.
There is no basis in law for suggesting that the applicant is confined to newly discovered facts known to him at the commencement of the s. 2 proceedings, before discovery or disclosure. In a case where the whole basis of his complaint is that material matters were concealed from him, it would be entirely unjust to confine him to a pleading filed at a time when evidence of undoubted relevance was wholly outside his knowledge.
Apart from this submission, the court’s conclusion that matters unrelated to the evidence of Adrienne McGlinchey establish a miscarriage of justice, render it unnecessary to record any findings on that evidence and, accordingly, the court will not do so.
Conclusion
In view of the above findings, the court will certify that newly discovered facts show that there has been a miscarriage of justice in the conviction of the applicant on the 28th February, 1995. The newly discovered facts are set out earlier in the judgment. Some of these are substantive and some relate to the credibility of those principally involved. Cumulatively, however, they leave the court in no doubt that a miscarriage of justice occurred.
D.P.P.-v- Christopher Griffin
[2008] IECCA 112 (24 July 2008)
Judgment by: Macken J.
Status of Judgment: Approved
Judgments by
Result
Macken J.
Refuse app to adduce additional grounds
Outcome: Refuse app to adduce additional grs
Macken, J. No CCA 106/07
deValera, J.
Gilligan, J.
THE COURT OF CRIMINAL APPEAL
Between/
DIRECTOR OF PUBLIC PROSECUTIONS
-and-
CHRISTOPHER GRIFFIN
Applicant
Judgment of the Court delivered on the 24th July 2008 by Macken, J.
During the course of the hearing of the application for leave to appeal against conviction, which took place on the 27th June 2008, Mr. O’Higgins, Senior Counsel for the applicant, sought to introduce a bundle of documents consisting of extracts from certain newspapers and television or radio reports published during or after the trial of the applicant which took place in December 2006 and January 2007. The documents sought to be introduced were of two types: (a) those which had already been the subject of applications for the jury to be discharged made on behalf of the applicant by his then senior counsel in the course of the trial; and (b) others, published variously during the same period as the above publications, or in the course of the Christmas break in 2006 when the trial court was not in session, and the last one published in May 2007 after the applicant had been convicted and sentenced.
The above applications for the discharge of the jury on grounds that they might or could have been influenced by the content of the media articles in question were made on three dates, twice on the 14th December, 2006, and once again on the 15th and 19th December, 2006. They covered both newspaper publications and television/radio broadcasts. These applications were all rejected by the trial judge. For the purposes of this judgment it is not necessary, and may be inappropriate at this stage of the application for leave to appeal, to detail the reasons given by the learned trial judge for their rejection. No further application was made, not only in respect of any articles published prior to Christmas 2006, but neither in respect of any subsequent publications.
On enquiry as to the relevant grounds for leave to appeal to which this material might relate, grounds (f) (g) (h) and (i) were all referred to. These grounds read as follows:
“(f) That, throughout the course of the Trial of the Accused, there was extensive press/media coverage of unrelated issues/events which had occurred prior to the Trial and of unrelated events and issues occurring contemporaneously with the Trial and all of which highly compromised and prejudiced the Accused and having regard to the extensive nature of the coverage, the content of the coverage, the cumulative effect of the coverage and the fact that the coverage made a clear and unambiguous link between the Accused, the Trial of the Accused and the said unrelated criminal activities being alleged, the Learned Trial Judge failed in his duty to discharge the Jury despite numerous and repeated requests being made.(g) By refusing to discharge the Jury, the learned Trial Judge failed to safeguard and vindicate the constitutional, personal and human rights of the Accused to a fair Trial in due course of law.
(h) That the learned Trial Judge ignored or disregarded the very serious concerns which were raised by the Defence concerning media/press coverage complained of and proceeded regardless.
(i) That the Learned Trial Judge erred in law by failing to discharge the Jury when the said coverage intensified to the point at which both the Defence and Prosecution were in agreement as to the requirement for concern.”None of these, at first glance, appeared to cover the material in question.
Whereas in the first instance Mr. O’Higgins informed the court that he wished this additional material to be considered by the court under Ground (f) of the original Grounds of Appeal as lodged, after further exchanges, he accepted that the material was not within ground (f), but submitted rather that he should be permitted to add a new ground, and, wishing to maintain Ground (f) of the original Grounds of Appeal, he proposed that the new ground would read, in substance, as follows:
“The trial was unsatisfactory by reason of the media coverage during the trial.”
Counsel submits that there are two reasons why the new ground should be admitted. The first is that the learned trial judge in dealing with the applications to discharge the jury referred to above, had made it clear that he had no intention of, or had set his mind against, entertaining any application to discharge the jury on the basis of media coverage or on any other basis. Secondly, it is argued that, in light of the manner in which the learned trial judge dealt with the applications actually made on the basis of media coverage in December 2006, senior counsel then acting on behalf of the applicant was precluded by that approach from making any further application.
Senior Counsel for the respondent, Ms. Murphy, argues that this is a new ground, not previously notified to or known by the respondent. Nor was it referred to in the applicant’s written submission. She contends that in the course of the trial no application of any description had been made to the trial judge in relation to the material sought to be adduced before this court, save the publications referred to at (a) above, and the remaining media publications cannot be brought within any of the existing grounds of appeal. Nor was there, she submitted, any reason why any further applications could not have been made to the trial judge, in light of the earlier applications actually made. She suggested, however, that in the final analysis, it was for this court to determine whether, in the interests of justice, the new ground, together with the materials, should be admitted.
Conclusion
This application is, in reality, of a hybrid nature. Firstly, a new ground proposed during the course of the leave hearing, and even then late in the day, is now sought to be added to the extant grounds of appeal, in the form set out above. Secondly, it is sought to have admitted into evidence before this court, and resulting from the addition of the new ground, a substantial package of materials not previously before the trial court. These too were furnished only a short time prior to the hearing, both to the court and to the respondent. The court accepts the argument of counsel for the respondent that neither the ground nor the materials (save those coming under (a) above) are referred to in any way in the written submissions dated the 10th June, 2008.
As is also very fairly acknowledged by Mr. O’Higgins in the course of his oral argument, no application had been made by senior counsel then acting for the applicant in the trial in respect of any of the articles now sought to be introduced save those the subject of the applications on the 14th and 15th December. That leaves approximately nine or possibly ten additional newspaper, television or radio articles which, on the basis of his argument, Mr. O’Higgins seeks to have admitted. It is therefore clear that they are to form an entirely new plank of the appeal against conviction. In that regard Mr. O’Higgins invited the court to have regard to the jurisprudence arising pursuant to legislation relating to the admission of new evidence, as being of assistance to him, although he did not invoke any particular jurisprudence in that regard.
Some of the materials in the bundle sought to be admitted as additional evidence at this stage were the subject of applications on the above dates, are already before the court, and are adequately covered by the extant ground of appeal (f) and related grounds. Nothing therefore turns on those publications.
As to the remainder of the materials, and the new ground, there are, in the view of this court, three main reasons why this application should be rejected. They are: (a) the new materials sought to be admitted in evidence at this time fail to comply in a material way with the case law governing the same; (b) there has been no credible reason advanced as to why the new ground was not included as part of the original grounds, and (c) neither the new ground nor the materials now sought to be admitted were the subject of any application or of any ruling during the course of the trial. In the absence of any explanation for this, or any valid reasons advanced for excusing the same, neither is it in the interests of justice that the new ground should be added or the new materials admitted at this time.
Dealing first with the application to add a new ground for leave to appeal, the procedure for doing so is found in Order 86 Rule 4 of the Rules of the Superior Courts, which requires an application to made to this court, not less than fourteen days before the date fixed to hear the application for leave to appeal. The normal procedure adopted is for the applicant to file a motion seeking to add the new ground, grounded upon an affidavit setting out the facts and matters giving rise to the application.
Secondly, according to the case law, the failure to include such a ground in the original grounds of appeal is a factor to be taken into account when considering an application to add a new ground, especially where no ruling was sought during the trial. As was stated in the judgment of this court (McCracken, J) in DPP v Foley (Unreported, Court of Criminal Appeal, 1 June 2006), in which leave to add additional grounds was refused:
“The notice of motion seeking to add these grounds is dated 25th April 2006, less than two weeks before the hearing of the appeal. The court fully accepts that failure to raise a requisition does not automatically prevent the court from considering a ground of appeal, but when this failure is combined with a failure to include the point in the original notice of appeal, the court must look with disfavour on the application to amend the grounds of appeal.”
No motion was brought in the present case and no affidavit was filed setting out any reason for the absence of this ground in the original application for leave. Mr. O’Higgins submits that these procedural requirements, which he did not appear to accept exist, should not preclude the court from considering his application, even if brought late. There is however no evidence before this court, by affidavit or otherwise, as to the reasons why this new ground was not included in the original ground of appeal.
While the above procedure applies, it is true that the court may, but in exceptional circumstances, hear and even grant such an application, if to refuse to do so would be contrary to the interests of justice, in all the circumstances. For the purposes of the application, and bearing in mind this principle, the court granted Mr. O’Higgins liberty to argue why he should be permitted to add this new ground, even at this late stage, notwithstanding that no application was made under Order 86, that no such ground of appeal had been included in the original notice of appeal, and notwithstanding the absence of any application during the trial which might support the new ground. Mr. O’Higgins now wishes to have the new ground granted and the new materials admitted so as to persuade this court that, although counsel had been precluded from doing so, had the materials been opened to the learned trial judge and considered by him, they would inevitably have resulted or ought to have resulted in the jury being discharged.
In dealing with an application of this nature, the case law also suggest that a court may, in an appropriate case, adopt the practice of permitting the application to be opened and the argument made de bene esse, the decision on the application then being adjourned until the end of the hearing of the application for leave to appeal on the original grounds (see, DPP v Dundon, Unreported, Court of Criminal Appeal, 13 February, 2008, and others.) In the present case, however, having regard to the nature of the application, which is to permit the ground to be added, so as to admit additional evidence in the form of substantial tranches of printed material or of broadcasts, it is not considered appropriate to adopt that approach in the present case.
Moreover, the well established rules relating to a ground of appeal, whether one originally filed, or, as here, a new ground sought to be added, are similar. The jurisprudence establishes clearly that, where a ground has not been raised in the course of a trial, either by way of requisitions on a charge, or by seeking a ruling, such as on an application to discharge the jury by virtue of media exposure considered by an applicant to be adverse to his interests, two criteria must be met. These are, firstly, that the failure to have raised the matter must have occurred as a result of some inadvertence on the part of the applicant’s legal advisers, and secondly, there must be a reason tendered to this court as to why a point was not taken. There is a detailed excursus of the history of this clear principle or rule, found in long established jurisprudence going back at least to 1929, in the case of DPP v Boyce (Unreported, Court of Criminal Appeal, 21st December 2005), and, in the case of DPP v Cooke (Unreported, Court of Criminal Appeal, 15th March 2006, in an application based on circumstances very similar to the within application, Geoghegan, J. giving the judgment of the court stated:
“In relation to the transcript of the child care proceedings, Ms. Staunton … has pointed out that it was within the power of the applicant to seek to obtain the transcript in advance of the trial. As to whether he would have been successful in that application is not relevant. In relation to the other additional grounds set out in the notice of motion and sought to be added, it would appear that no objection or requisition was made in relation to these at the trial and they are now being raised following on a third firm of solicitors coming into the case and trawling through the transcript. Except in rare circumstances, this court will not allow additional grounds to be added as a consequence of such process. Indeed even an original ground of appeal will not normally be upheld if the point raised was one which should have been the subject matter of a requisition and was not. There is a detailed treatment of this topic in the judgment of this court delivered by Hardiman J. in The People (DPP) v Cronin (unreported judgment delivered the 16th May 2003). We would strongly endorse what was said in that judgment.”
The same obligation was also considered in the earlier judgment of this Court delivered by O’Flaherty J. in the case of The People (D.P.P.) v Moloney (Unreported, 2nd March 1992), in which he stated:-
“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacy they perceive in his directions to the jury.”
In The People (Director of Public Prosecutions) v Noonan [1998] 2 I.R. 439 Geoghegan J. giving the judgment of the Court stated:-
“It is sufficient to say that, as this court has said on numerous occasions in the past, of course it is the duty of counsel for the prosecution or the defence to draw the attention of the trial judge to any aspects of his charge which require reconsideration on his part so as to give him an opportunity of putting any matter right before the jury reach their verdict.” (emphasis added)
While that extract concerned, specifically, questions arising on the charge, it applies to all matters of concern in the course of the trial, so that the trial judge may rule on the same. It is, after all, the rulings of the judge in the trial as disclosed by the transcript as well as his charge to the jury which are the basis of the grounds for an appeal to this court. Several more recent cases since the above case law was pronounced echo and reaffirm these same principles.
As mentioned above, Mr. O’Higgins very fairly admitted that at no time during the course of the original trial was any application made to have the jury discharged by reason of the materials in question, save for those referred to above at (a), which are, in any event already the subject of ground (f). There were, therefore, no rulings whatsoever in respect of the new ground of appeal. Nor was it suggested on any occasion since, that such a ground existed at any time up to the hearing.
It is important to note the history of the application for leave to appeal since it was filed. Counsel who had represented the applicant at all times during the course of the trial, continued to appear for him on the several occasions before this court when the matter was considered in one form or other. Included in these are the following. On the 23rd July, 2007, when the case was fixed for hearing, it was adjourned because of delay in bringing the applicant to court, the full transcript had only been received but not verified, and counsel for the applicant properly indicated a desire to have copies available to him. On the adjourned date, the 27th July 2007, a bail application was made to this court by counsel then acting on behalf of the applicant, and was refused (Hardiman, J). An indication was given to the court on that occasion that a s.29 application might be lodged in respect of that refusal. The case was further in the management list for this court on three subsequent occasions, between October 2007 and January 2008, on which date counsel then acting for the applicant indicated that no s.29 application would be made. The application for leave to appeal was thereupon placed into the March 2008 List to Fix Dates. On the 3rd March, 2008, it was adjourned until the next list, there being then no full day (the estimated time required, according to counsel for both parties at that stage) available for the hearing. On the 28th April, 2008, it was fixed for hearing by the 30th June, with an estimate of one day. At no time, during any of the appearances on behalf of the applicant on any of the above dates, was an application to add a new ground ever mentioned, nor was there even a suggestion that any additional material might be sought to be admitted. Nor was any argument arising on the proposed new ground, or even in relation to the new materials now sought to be adduced, included in the written Submissions filed on behalf of the applicant on the 10th June, 2008, less than three weeks before the hearing. It was not until late in the actual hearing of this application for leave that the additional material was sought to be opened. Since it was not within any the ambit of any existing ground, it became necessary for counsel to seek to add a new ground for leave to appeal during the hearing.
None of the foregoing history tends to support an intention to argue for leave on grounds other than those already lodged. Nor does it tend to support an intention that any argument was to be made based on an allegation as to the manner in which the learned trial judge dealt with earlier applications, save as set forth at ground (f) above. Nor does it support a suggestion that it was ever considered that through inadvertence or otherwise any ruling which ought to have been sought in the course of the trial was not sought, or should be remedied by being included in the original application for leave.
It is however suggested by counsel for the applicant that his former counsel could not have made any further application during the course of the trial based on media coverage. This is not at all established, in the absence of any evidence on affidavit, and a reading of the transcript does not disclose support for such a contention nor any evidence of inadvertence. It discloses that counsel for the applicant made three applications in respect of media coverage over a short two day period, without any apparent reluctance. Counsel acting for a party is not permitted to resile from his obligation to make any and all appropriate applications on behalf of an accused. There is no suggestion made on behalf of the applicant that counsel did not follow instructions fully, nor that counsel did not make all appropriate applications concerning media coverage when he did. The court concludes that this new ground falls into the class of grounds which were decried in much of the above jurisprudence, being one sought to be adduced at a very late stage and after a change in legal representation, and a further minute consideration of the transcript, far removed from the reality of the trial.
As to the application to admit new evidence, the court can dispose of this fairly briefly. The new evidence consists of all of the publications contained in the bundle of materials served on the respondent and furnished to the court, save those which are already before the court under (a) above, which are within the ambit of ground (f). The parties know precisely which documents are there referred to. As to the balance of the materials, these can only be admitted as new evidence. They do not appear to this court to be capable of being classified as such. The question of what is or is not capable of being admitted as new evidence on an appeal has been the subject of several cases and, at this stage, the position is well established. It is sufficient to refer again to the decision of this court in DPP v Cooke, supra., where the matter was also considered. In that case, which concerned, inter alia, an application to add a new ground and within that, as here, to have new evidence admitted, Geoghegan, J stated:
“Turning now to the question of the additional evidence, it would appear that the applicant has failed to satisfy the criteria which, subject to exceptional circumstances, have to be established before additional evidence with a consequent new trial can be allowed by this court. Although there have been various decisions of this court over the years, … there is nothing to suggest that the fundamental principles are any different than those which apply in the Supreme Court. The most succinct summary of those principles is contained in the judgment of Finlay CJ in Murphy v Minister for Defence (1991) 2 I.R. 161. The relevant passage reads as follows:
“The principles governing the admission of fresh evidence on an appeal to this Court have been set out in the decision of this Court in Lynagh v. Mackin [1970] I.R. 180. Neither counsel for the appellant nor the respondents on this motion has suggested to the Court that any other principles apply, although the Court should review that decision.
I am accordingly satisfied that the principles applicable are as follows:-
1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial; (emphasis added)
2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;
3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”
Further consideration of the admission of new evidence is found in the detailed judgment of Kearns, J. in DPP v Willoughby (Unreported, Court of Criminal Appeal, 18th February 2005) in which, having considered the entire range of jurisprudence on the issue, he stated, inter alia:
“(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. …”
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial …”.
The most basic and most important requirement set out in the above
cases is not met by the applicant in this case. The evidence now sought to be admitted was clearly in existence during the course of the trial, with the exception of that dated May 5th 2007, which at this stage cannot, in the view of this Court, have been in any way influential on the jury, even had they seen it, since it was published long after conviction. The remaining evidence was wholly procurable, even without having to exercise any due diligence. The transcript of the evidence makes it clear that the counsel for the applicant and his legal advisers were extremely alert to the existence of possible media coverage, and the jury had given an undertaking to the court that they would not be influenced in any way by any such media coverage.
There is already as part of the application for leave to appeal, grounds based on the allegation that the learned trial judge handled the trial in a manner which evidenced a fixed and rigid approach to rulings sought and applications made to the court on behalf of the applicant, including those relating to media coverage. This and other grounds have been argued before this court in an extremely detailed and comprehensive manner, and indeed the application, which even on the morning of the hearing was indicated as likely to finish in a day, has now had a second day allocated to it. There has been and will be ample time for all admissible grounds to be argued fully on behalf of the applicant. The court finds that there are no exceptional circumstances which, in the interest of justice, require that the additional ground – which seeks to have placed before this court substantial amounts of material never seen by the trial judge and upon which no rulings of any kind were sought – ought to be permitted to be added as a ground for leave to appeal.
In the circumstances the applications for leave to add the additional ground and to have the additional materials admitted are refused.
D.P.P.-v- Michael Joseph Kelly
[2008] IECCA 7
Date of Delivery: 01 February 2008
Court: Court of Criminal Appeal
Composition of Court: Kearns J., Hanna J., McCarthy J.
Judgment by: Kearns J.
Status of Judgment: Approved
Judgments by
Result
Kearns J.
Refuse application under Sect 2 CPA 1993
Outcome: Refuse application under Sect 2 CPA 93
THE COURT OF CRIMINAL APPEAL
Kearns J.
Hanna J.
McCarthy J.
[C.C.A. No. 116CPA of 2003]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993
BETWEEN
MICHAEL JOSEPH KELLY
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT of the court delivered on the 1st day of February 2008 by Kearns J.
Michael Joseph Kelly, the applicant herein, was convicted on 24th March, 1983, by a jury in the Central Criminal Court (Gannon J.) of the murder of Margaret Glynn at the house which she occupied with her elderly brother Martin Glynn, at Keeves, Ballinamore Bridge, Co. Galway on 15th November, 1981.
Leave to appeal was refused by this Court on 25th May, 1984, and the applicant was later refused a certificate to appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act, 1924.
Following conviction the applicant was sentenced to penal servitude for life. He was however released on licence in the mid 1990s.
The applicant now seeks to have his conviction for murder quashed pursuant to the provisions of s. 2 of the Criminal Procedure Act, 1993 on the basis that there are newly discovered facts which show that there has been a miscarriage of justice in his case.
THE CRIMINAL PROCEDURE ACT, 1993
The Criminal Procedure Act, 1993 makes provision for the Court of Criminal Appeal to review alleged miscarriages of justice in cases where the court has previously rejected an appeal or an application for leave to appeal in the case.
Section 2 of the Act provides as follows:-
“(1) A person –
(a) who has been convicted of an offence either –
(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under s. 13 (2) (b) of The Criminal Procedure Act, 1967, and
who after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and
(b) who alleges that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,
may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence
(3) In subsection (1) (b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.
(4) The reference in subsection (1) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.
(5) Where-
(a) after an application by a convicted person under subsection (1) and any subsequent re-trial the person stands convicted of an offence, and
(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,
he may apply to the Court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.”
In the instant case, the application is grounded on s. 2(4), that is to say it is based on what are contended to be “newly discovered facts” coming to the notice of the applicant and his advisors after his appeal herein had been disposed of.
Before considering the elements of what may constitute a “newly discovered fact” it is necessary to set out the background to this case.
BACKGROUND
In the early morning of 15th November, 1981, a fire occurred in a three-roomed cottage occupied by Martin and Margaret Glynn in a rural area near Ballinasloe, Co. Galway. The Glynns were brother and sister, both of whom were elderly and unmarried (Martin Glynn was aged 85 years and Margaret Glynn aged 87 years). Martin Glynn was in poor health and unable to look after himself but his sister was in somewhat better health. At the time of their death, both were being looked after by the applicant, who at the time was aged 29 years and resided with them, and who was staying in the house on the same night.
Following the fire, Margaret and Martin Glynn were found dead in the house and brought to Portiuncula Hospital in Ballinasloe. The applicant was interviewed at Ballinasloe Garda Station later that day on Sunday, 15th November, 1981 when he outlined how he had woken up to find the house on fire and that he could not save either Martin or Margaret Glynn. In his initial statement, the applicant lied in relation to the time he was in the house, as the Glynns – following a deterioration of the relationship between them and the applicant – had locked him out the previous day and he had had to force open the door in the hours preceding the fire in order to gain entrance to the house.
A post mortem was carried out on the bodies of Martin and Margaret Glynn on 16th November, 1981 commencing shortly before 3pm by the then State Pathologist, Dr. John Harbison. Dr. Harbison concluded that Martin Glynn had died of natural causes, namely bronchopneumonia. He was also of the opinion that Martin Glynn had died prior to the commencement of the fire.
In relation to Margaret Glynn, Dr. Harbison noted that the body was clothed and that some of the clothing was burned. The body was severely burned in places, particularly the left side of the head and neck. There was bruising on the under surface of the scalp on the right side which extended down the right cheek bone and into the tissues on the right side of the neck. Further bruising was identified in the muscles overlying the voice box and below the thyroid gland in the front of the neck. A fracture of the thyroid cartilage was suspected. There was no evidence of soot inhalation in the air passages and an analysis of a sample of blood taken from the deceased revealed a carboxyhaemoglobin concentration of less than 2%.
Dr. Harbison concluded that Margaret Glynn’s neck injuries were indicative of strangulation or throttling. He was of the opinion that she was dead when the fire started and that the distribution of the burns raised the possibility that the fire was a deliberate attempt to conceal homicide.
While at trial Dr. Harbison accepted that there was not in fact a fracture of the larynx, he was nonetheless satisfied that death in the case of Margaret Glynn was due to strangulation.
On 22nd November, 1981 the applicant was arrested and detained at Ballinasloe Garda Station pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939. On the evening of 22nd, the applicant signed a written statement in which he admitted to the murder of Margaret Glynn.
He described how on the day of 14th November he had sought admission to the Glynn’s house but had been told to go away. The applicant tried repeatedly to gain access, but without success. At one stage he forced open the door which had been held closed by a stick. Having repaired thereafter to a neighbour’s house, the applicant again went up to the Glynn’s house during the small hours and lay down on a bed which he had in the house until it was daylight. His statement then continued:-
“I got up then and I went over to Marty’s bed and I saw that he was not breathing. I then knew that he was dead. Maggie had me driven daft and I went down to her bedroom. It was bright at this stage and I saw the candle lighting beside her bed on a chair. I went to her bed and I saw that she was asleep. I picked up a blanket off her bed and I put it over her face. I then pressed on her neck with my right hand and she started shouting ‘don’t do it Micheleen’. I kept pressing on her neck until she stopped breathing. I then lifted the blanket off her head and I held it over the candle until it caught fire. I then held the burning blanket to the outside of the bed until it caught fire. When the outside of the bed was on fire I threw the burning blanket on the inside of the bed near the wall. The top part of the bed went on fire and the room was soon all smoke. I went out then from the house and went down to Mickey Donoghues.”
The applicant was charged with murder and arson contrary to s. 2 of the Malicious Damage Act, 1861 and his case was heard before Mr. Justice Gannon and a jury in the Central Criminal Court between 21st day of March, 1983 and the 24th day of March, 1983. The trial judge directed the jury to find the applicant not guilty of arson. The applicant was found guilty of murder and sentenced to penal servitude for life.
The case against the applicant at his trial was based on two main pillars. Firstly, there were the findings of the pathologist who carried out the post mortem on both Margaret and Martin Glynn. Dr. Harbison’s view was that Margaret Glynn died from asphyxia caused by compression of her neck in view of injuries which he found, including bruising of her neck, a fracture of her larynx and bleeding into her lungs. Secondly, the prosecution relied on the statement made by the applicant in Ballinasloe Garda Station in which he admitted to killing Margaret Glynn. This confession was made by the applicant to Detective Garda Joseph Shelly and Sergeant Patrick Lynam, both from the Garda Technical Bureau. The prosecution also relied to some extent on evidence that the applicant had asked Mr Donoghue on the night of the 15th November to tell the gardai nothing about his movements or whereabouts the previous evening. Reliance was also placed on a further conversation which the applicant had some three days prior to the deaths with a local man, Mr Thomas Geraghty, in which the applicant expressed his concerns that if Margaret Glynn survived her brother, she would sell up the cottage and he would be forced to leave with nothing, despite having been told by the Glynns that the place was to be left to him by way of recompense for looking after them while they were alive.
The applicant’s defence at trial was that he had no hand, act or part in the arson of the house at Keeves, Ballinamore, Co. Galway, nor had he anything to do with the killing of Margaret Glynn. The medical evidence relied on by the prosecution was challenged both through cross-examination and by the evidence of an expert, Dr. Declan Gilsenan, a pathologist, who was called by the defence and who disagreed with some of the findings of Dr. Harbison. The applicant gave evidence in a voir dire hearing that his statement was not made voluntarily but rather was made only following intimidation by the gardaí who had interviewed him. However, the learned trial judge ruled that the said statement had been made voluntarily, and the same was duly considered by the jury as part of the evidence in the case. At trial, the applicant made an unsworn statement before the jury denying any involvement in the murder of Margaret Glynn.
THE APPLICATION
The application originally contained two grounds of appeal raising issues of alleged newly discovered facts relating, firstly, to the pathology evidence and, secondly, to the authenticity of the inculpatory statement made by the applicant. In relation to the latter it was alleged that technology which was not available at time of trial, namely the CUSUM test, suggested that there had been more than one contributor to the making of the statement so that it could no longer be safely regarded as the applicant’s own statement.
By way of further motion and grounding affidavit dated 9th December, 2005, an application was made to add further grounds of appeal. One of these grounds sought to rely on certain information given to Dr. Harbison prior to the autopsy which was not disclosed to the defence at time of trial. This was not information of a medical nature, but information which suggested a motive on the part of the applicant for the murder of Margaret Glynn. It was suggested that this might have influenced the views of Dr. Harbison and may have prejudiced him in his performance of his duties as pathologist in this instance. This ground was not, however, pursued before this Court.
The further grounds of appeal may be summarised as follows:-
(a) The conclusion drawn from the findings that the larynx of the deceased was flexible and misshapen as being evidence consistent only with death having been caused by manual strangulation could no longer be safely relied upon having regard to the opinions of a number of medical experts
(b) The finding that there were petechiae in the lungs of the deceased, which was treated as evidence of death having been caused by manual strangulation, could no longer be relied upon as safe, as so indicated by the opinion evidence of various medical experts
(c) There was a failure to have regard to the reasonable possibility that the death of the deceased was caused by the inhalation of cyanide gas occasioned by the release of gas in the burning of a pillow on the bed of the deceased, as indicated in the further opinion evidence of a number of technical and medical experts
(d) The prosecution theory that the fire started on top of the bed of Margaret Glynn as claimed by the applicant and as stated by him in his alleged statement to the Gardaí was incorrect having regard to further expert evidence from a fire consultant, whose opinion was to the effect that the fire started beneath the bed
By notice of motion dated 12th November, 2007, the applicant’s solicitors sought leave to add a further ground of appeal following the discovery by the applicant’s solicitor of post mortem photographs depicting the dissection of the neck of the late Margaret Glynn deceased as carried out by Dr. Harbison, which said photographs were stated not to have been available to the defence at trial. These photographs had since been viewed on behalf of the applicant by Dr. Basil Purdue, Home Office Pathologist, who concluded that these photographs made it plain that the body of Margaret Glynn was severely affected by both heat involving the left side of the neck and autolysis of such a degree that bruising could not be safely diagnosed.
It is important to set out the background to the emergence of these photographs as deposed to by Gregory F. O’ Neill, the applicant’s solicitor, in his affidavit supporting the notice of motion. He deposes that the applicant first consulted him in 1995, but the applicant had little or no papers concerning his case apart from some “vestigial” documents pertaining to his grounds of appeal. Mr. O’ Neill made inquiries of his previous solicitor, who unfortunately had become ill and had not retained any papers. However, through the assistance of the Registrar of the Court of Criminal Appeal, Mr. O’ Neill obtained the file held in the office of the Central Criminal Court, which included a copy of the Book of Evidence and some other documents, including two booklets of photographs. He also retrieved from the Office of the Attorney General material pertaining to an application unsuccessfully brought by the applicant when he sought a certificate pursuant to s. 29 of the Courts of Justice Act, 1924.
Ultimately, Mr. O’ Neill obtained a copy of the trial transcript in 1999. On 2nd July, 2004 the office of the Chief Prosecution Solicitor sent to Mr. O’ Neill a bundle of documentation which included further copies of the two booklets of photographs already referred to and a third booklet of photographs. The first booklet of photographs contained photographs numbered 1 to 12. The second book of photographs contained photographs numbered 13 to 16. The third book of photographs was unnumbered.
This third bundle of photographs constituted a contemporaneous photographic record of Dr. Harbison’s examination and dissection of the remains of the late Margaret Glynn. Although this book of photographs had been sent to a firm of solicitors with whom Mr. O’ Neill had been employed in 2004, he did not actually receive the material until some time later. When he examined the Book of Evidence and notices of additional evidence, it became plain that only two albums of photographs had been supplied to the defence prior to the trial in 1983.
Having obtained the material which included this third booklet of photographs, it never occurred to Mr. O’ Neill that the photographic material contained material which was additional to the two original booklets of photographs which he had obtained some years previously. Accordingly, when he first briefed Dr. Basil Purdue, Home Office Pathologist it was only with the first two sets of photographs. The third booklet was however available when a consultation with Dr. Purdue took place at his offices on 1st November, 2007. This was the first occasion when any expert retained by the defence had an opportunity of looking at the contemporaneous photographic record of the post mortem examination carried out by Dr. Harbison on the remains of the late Margaret Glynn.
From further enquiries then undertaken by Mr. O’ Neill it transpired that Dr. Jack Crane, a Consultant Pathologist retained by the Chief Prosecution Solicitor in connection with this appeal, had equally not been furnished with the particular booklet of photographs. This was immediately rectified so that Dr. Purdue and Dr. Crane were subsequently in a position to discuss the implications of the new photographic material.
The motion was also supported by an affidavit from Mr Patrick McEntee, the distinguished Senior Counsel, who had been the applicant’s counsel at trial, in which he confirmed he had no recollection of having been furnished with the photographs in the third booklet at the time of the trial. His recollection is buttressed by the complete absence of any reference to these photographs in the transcript of the trial.
No objection having been raised by Mr. O’ Connell, Senior Counsel for the respondent, the court directed that this further ground of appeal be added to those already lodged.
WHAT IS A ‘NEWLY DISCOVERED FACT’ ?
By way of preliminary issue, Mr. O’ Connell argued that neither the various newly – commissioned expert reports nor the opinions expressed therein could be seen as constituting ‘newly discovered facts’ within the meaning of the Criminal Procedure Act, 1993. They were merely further and additional opinions, albeit opinions informed by advances in science. In the present case, with the exception of the photographs and CUSUM analysis, there were no new facts and no new science such as might invalidate any opinion tendered at trial by Dr. Harbison. He submitted that the procedure under section 2 of the Act does not introduce an automatic right to a hearing merely because an expert report can be produced contradicting the prosecution expert at the original trial. Such an application may constitute no more than an attempt to introduce a fresh expert who might do a better job than the original defence expert. Alternatively, there could be a broad brush/ approach in the course of which an applicant could seek to introduce a mixture of old and new science and/or old and new grounds of appeal in such a way that a limited piece of “new science” could be used as a trigger for a complete rehearing of numerous other issues.
Specifically in relation to the various grounds of appeal advanced, Mr. O’ Connell addressed the areas of opinion evidence in the following manner:-
(a) The supposed fracture of the larynx.
It was conceded by Dr. Harbison at the original trial in 1983 that there was no fracture of the larynx although he had initially thought this to be the case. This issue was canvassed at trial and was clearly not a newly discovered fact.
(b) Patchy bleeding into the lungs of Margaret Glynn
Mr. O’ Connell again submitted that none of the reports later commissioned on behalf of the applicant suggested the availability of some new science that was not available in 1983 at the time of the trial, nor had the existence of any existing science rendered invalid the findings at trial.
(c) The possibility of a cyanide poisoning of the deceased
Mr. O’ Connell accepted that the reports of Dr. Purdue (on behalf of the applicant) and Dr. Crane (on behalf of the respondent) suggest that testing for cyanide poisoning has become more routine in modern times. He also accepted that the report of Professor Mayes, Dr. Purdue and Dr. Forrest (all experts retained on behalf of the applicant) referred to modern studies of cases where the possibility of cyanide poisoning unaccompanied by increased carbon monoxide or soot in the airways (as was the case with Margaret Glynn) may explain a death. This information was not available in 1983, but Mr. O’ Connell pointed out that the remains of Margaret Glynn had not been actually tested for cyanide poisoning so that any opinion evidence in this respect would be purely speculative.
(d) Evidence of fire expert suggesting the fire began under the bed
Mr. O’ Connell submitted that although the fire consultant retained on behalf of the applicant issued his report in 2006, it was not clear that it contained any expertise about fires that was not known in 1983. He thus submitted that opinion evidence as to where the fire might have started, which was not called by the defence at trial, should not now be regarded as being admissible as a newly discovered fact. Any theory advanced by any such expert that the fire may have caused the death and/or that the fire might have started under the bed could be discounted on evidence given at trial to the effect that an inspection of the underneath of the bed in 1981 revealed no hole such as might be caused by burning.
Anthony Sammon, Senior Counsel on behalf of the applicant, accepted that there was a difficult line to be drawn between opinion and fact. If new scientific opinion offered a more reliable guide to what might have happened in any given situation, he submitted that the court should treat it as evidence of a newly discovered fact. He accepted, however, that the remains of Margaret Glynn had not been tested for cyanide poisoning, but argued that this was now an unexplored possibility in the case which raised a doubt and that the applicant should have the benefit of it. Mr. Sammon further accepted that a review of the various Irish authorities did not indicate any precedent for holding that opinion evidence could be regarded as constituting a newly discovered fact. He argued however that commonsense would suggest that where scientific developments offered a more reliable basis for the expression of an expert opinion at a later stage, then evidence of such opinion should be admissible.
PRELIMINARY RULING
It is a basic principle of statutory interpretation that words be given their natural and ordinary meaning. The Concise Oxford English Dictionary contains the following useful definition of the word ‘fact’: “A thing that is indisputably the case”; “the truth about events as opposed to interpretation”. The word ‘opinion’ on the other hand is defined as: “a view or judgement not necessarily based on fact or knowledge.”
It seems to the Court that there is a critical difference of meaning evident in these definitions, an impression that is fortified by reference to decided cases in this jurisdiction wherein evidence of “newly discovered facts” was admitted. In The People (Director of Public Prosecutions) v. Meleady & Grogan [1995] 2 IR 517 the “newly discovered fact” was evidence of a fingerprint found on the inside of a front passenger door window in a car. The gentleman whose fingerprint it was gave evidence on behalf of the applicants at the trial that he had been the front seat passenger in the vehicle that night and that neither of the applicants had been in the car which had been stolen by a number of youths. The owner of the car had attempted to stop the youths by jumping on the bonnet of his car and had purported to identify the first applicant as the driver of the car and the second applicant as the front seat passenger. Following a further conviction after a retrial, it emerged for the first time that the fingerprint of a person other than either applicant had been found on the inside of the front passenger door window. This was clearly a “newly discovered fact”. An inquiry which was then undertaken in the Chief State’s Solicitor’s Office by a Principal Solicitor in that office led to the discovery of a written memorandum prepared by R.W., solicitor in the District Court section of the office (the “Walker Memorandum”) which was addressed to the Circuit Court section of the office and referred to a particular garda having mentioned that the main prosecution witness, the owner of the motor car, had been shown a book of photographs and had identified one of the applicants therefrom. The particulars of that case need not be further considered for present purposes other than to state that the two matters which persuaded this Court to receive evidence were clearly factual matters and not matters of opinion.
In The People (Director of Public Prosecutions) v. Pringle [1995] 2 IR 547 this Court considered the following as capable of amounting to “newly discovered facts”:-
(a) Evidence of the CUSUM technique, assuming if admitted that it would have raised a doubt in the mind of the jury
(b) Evidence that a tissue had not been forwarded to the State Forensic Laboratory for analysis so that the court of trial was deprived of the results of an analysis which might have been of assistance in establishing the innocence of the accused
(c) The non-disclosure of the circumstances surrounding the forwarding, or not forwarding, of the tissue to the State Forensic Laboratory and the non-disclosure of the conflict between two members of the gardai as to what happened the tissue
While the court ultimately resolved the particular case by reference to the conflict which existed between the two police officers and made no finding about the reliability or otherwise of the CUSUM technique, it is nonetheless clear that all matters in respect of which the court heard evidence were matters of fact and not opinion.
In The People (Director of Public Prosecutions) v. Gannon [1997] 1 I.R. 40, two documents came to light, copies of which had not been furnished to the applicant’s legal advisors at the time of his trial. The first consisted of notes taken by a guidance counsellor who was the first person to whom the complainant had reported a rape, and the second was a report which a garda had prepared based upon those notes which she had received from the counsellor. Both the notes and the garda report contained details of the description given to the counsellor by the complainant of the man who raped her. Clearly in this case also the newly discovered material was factual in nature.
In the People (Director of Public Prosecutions) v McDonagh [1996] 1 I.R. 305, the ‘newly discovered fact’ evidence consisted of a signed statement brought into existence subsequent to the appeal in this Court in which the applicant’s co-accused sought to exonerate the applicant and accept sole responsibility for a sexual assault – again plainly a factual matter only.
More recently in The People (Director of Public Prosecutions) v Shortt (No. 1) [2002] 2 I.R. 686, the non-disclosure prior to trial of serious allegations raised against the principal State witness were conceded by the State to constitute newly discovered fact within the meaning of section 2 of the Act of 1993. Again, no issue of opinion evidence arose in this case either.
In ruling on the present application the Court is strongly of the view that opinion evidence, subject to the qualification hereinafter expressed, should not constitute newly discovered fact within the terms of the Criminal Procedure Act, 1993. Firstly, to so interpret opinion evidence would be to give a meaning to the word “fact” which is quite different from its ordinary and natural meaning. Secondly, it would have the effect of rendering virtually every conviction, even one upheld by this court following an appeal, open to later challenge if a further or new expert could be found to offer an opinion which went further than a defence expert had done at trial, or which tended to contradict or undermine experts called on behalf of the prosecution at trial. It would open the door to the introduction of additional evidence in circumstances which were plainly contra-indicated by this Court in The People (Director of Public Prosecutions) v Willoughby [2005] IECCA 4. Having conducted an extensive review of both the Irish authorities and a number of English authorities in that case, this Court considered it could formulate principles appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal as follows (at pp. 21-22):-
“(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources
(b)The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial
(c) It must be evidence which is credible and which might have a material and important influence on the result of the case
(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”
This approach to the admissibility of new evidence on appeal was expressly endorsed by the Supreme Court in The People (Director of Public Prosecutions) v. O’ Regan [2007] IESC 38 and must now be seen as settled law in this respect.
It would in my view be altogether impermissible for this Court to adopt an approach to opinion evidence which both ignores the express terminology of s. 2 of the Criminal Procedure Act, 1993 and also, by implication at least, goes totally against the thrust of the two decisions to which I have just referred.
That is not to say that opinion evidence is in all circumstances inadmissible, as the Court’s present ruling will make clear. There may be cases where a state of scientific knowledge as of the date of trial may be invalidated or thrown into significant uncertainty by newly developed science. There may also be cases where the opinion of an expert at trial may later be shown to have been tainted by dishonesty, incompetence or bias to such a degree as to render his evidence worthless or unreliable. Once such ‘facts’ are established, expert opinion evidence must clearly then be admissible so that such new ‘facts’ can be properly interpreted.
It is perhaps easiest to illustrate the distinction between opinion and fact by reference to the evidence which the Court does propose to consider in this matter. The Court is quite satisfied that the evidence contained in the third booklet of photographs, and expert evidence in relation to the interpretation of these photographs, is admissible as “newly discovered fact”. These photographs were not available to the defence either at the time of trial, or the appeal. The emergence and existence of these photographs is quite obviously a factual matter and capable of being established as such in evidence in the sense envisaged by the Act.
Equally, the development of the CUSUM technique, which in essence is directed to ascertaining whether more than one contributor was involved in the making of a statement, is a science which, though no longer new, was not available at time of trial. The Court is disposed to hear evidence about the technique, and will of course also entertain opinion evidence as to its reliability and credibility. It will also hear opinion evidence as to the interpretation of any analysis undertaken by reference to the CUSUM test.
The Court however will decline to receive evidence on the remaining matters which, in the opinion of the Court, are entirely matters of expert opinion falling short of the criteria outlined above.
THE PHOTOGRAPHS
Dr. Basil Purdue is an independent forensic pathologist since 1978 who has been in full-time practice of forensic medicine and pathology since 1981. He is on a list of pathologists supplied by the Home Office who provide a service to the police forces of Hampshire, Wiltshire, Dorset and Avon and Somerset and to solicitors in the South and West of England. He holds the qualifications of Bachelor of Science and Bachelor of Medicine and Surgery. He is a fellow of the Royal College of Pathologists and holds a Diploma in Medical Jurisprudence (Pathology) from the Society of Apothecaries of London. He is also joint author of a well known textbook “The Pathology of Trauma” with Professor J.K. Mason.
He told the Court in evidence that he had originally obtained two booklets of photographs, but in recent days had received and examined the third booklet which was of high quality although black and white.
He gave evidence that in the photographs one could see evidence of heat haematoma typical of the effects of heat on a dead body. He stated that heat sends the body into decay more quickly than usual. He noted that Dr. Harbison had only examined the corpse after a significant period of time had elapsed. All of the photographs showed severe decay and in his opinion there was no reliable evidence of bruising from the photographs. There was evidence of severe autolysis which made it unsafe to diagnose bruising in the neck area.
He stated that the pathological portion of the prosecution case rested on three pillars. The first was the suggestion of a fractured thyroid, a suggestion Dr. Harbison had withdrawn at trial. The second was evidence of patchy haemorrhage in the lungs, but this was non specific in nature and could not safely be relied upon. The third pillar of the prosecution case consisted of bruising of the neck, and in Dr. Purdue’s opinion, none of the bruises described by Dr. Harbison could be reliably identified anywhere in the booklet of photographs. The furthest it could be put was that there was evidence of discolouration which may or may not have been bruising. He felt the cause of death should have been recorded as “unascertainable”.
Professor John Crane is State Pathologist for Northern Ireland. He is also Professor of Forensic Medicine at Queens University and a Consultant in Pathology to the Northern Ireland Health & Social Services Boards. He also had access to all the papers in the case, including the post mortem reports of Dr. Harbison in respect of his autopsies on Martin Glynn and Margaret Glynn, garda photographs of the post mortem examination of Margaret Glynn and histology slides prepared by Dr. Harbison in respect of both autopsies.
Before seeing the lately discovered photographs, Professor Crane accepted that Dr. Harbison did incorrectly diagnose a laryngeal fracture, but pointed out that Dr. Harbison had accepted that fact in the course of the trial but nonetheless still remained of the opinion that death was due to strangulation. When reporting in August, 2004, Professor Crane was of the view that a pathologist with the experience of Dr. Harbison would not misinterpret any bruising he found as being due to heat necrosis. He felt that the post mortem photographs were of little assistance in confirming the nature and extent of the bruising and that Dr. Harbison had not taken any sections for microscopy to confirm its nature. He felt that the injuries described by Dr. Harbison could be consistent with the application of pressure on the neck and probably also as a result of blows to the scalp and face. He was also of the view at that time that it was difficult to say that the cause of the injuries was manual strangulation, because the absence of fractures of the hyoid and laryngeal cartilages and the failure to find petechial haemorrhages in the right eye would mitigate against such a finding. However, in his experience the extent of bruising in such cases is relatively slight and quite subtle. However, it was not unreasonable to conclude that whatever the mechanism of injury to the neck it could have been sufficient to account for death. He was also in agreement with Dr. Harbison that the severity of the burns to Margaret Glynn would be in keeping with a deliberate attempt to burn the body to conceal injuries responsible for her death.
In the course of his evidence Professor Crane said that the photographs of the clothed body of Margaret Glynn in the mortuary show evidence of severe burns in the form of charring to the left side of deceased’s face, neck and left shoulder/upper arm. It appears that the left side of the deceased’s head was close to the seat of the fire, given that she was lying on her left side in the bed.
Having looked at the new photographs, in particular those showing areas of discolouration, he felt unable to confirm that they – taken by themselves alone – demonstrate evidence of bruising. That, however, was not to say that bruising was not present, but simply that it was not demonstrated in the photographs. He accepted that, in tissues undergoing decomposition, discolouration may develop which may mimic bruising. Thus there was a possibility that discolouration due to post mortem change was misinterpreted by Professor Harbison as evidence of antemortem injury.
Professor Crane stressed however that there was no evidence of death by natural causes. Further, there was no evidence to indicate that Margaret Glynn was alive when the fire started. Had she been alive at that stage, she would have inhaled smoke thereby drawing soot into her airways and carbon monoxide into her lungs. However, no soot had been found in her airways and the 2% level of carbon monoxide found to be present in her blood was of no significance and did not indicate smoke inhalation.
In this case there had been what Dr. Harbison believed to have been bruising in the parietal area of the head on the right side, over the right side of the jaw, and in the neck area. This was apparent from internal examination of blood vessels.
While there was no unequivocal evidence of strangulation, the discolouration found and noted by Dr. Harbison was localised to the right side of the head and neck and was not uniform. If the discolouration was due to putrefaction, it was more likely to be uniform. Furthermore, post mortem staining was more likely to be affected by gravity, so that in interpreting the findings made by Dr. Harbison, it had to be remembered that the body was found lying on its left side, whereas the discolouration or bruising in this case was to the right side of the head, jaw and neck. This suggested to Professor Crane that the discolouration was more likely to be bruising.
In his opinion, the black and white photographs were of limited value to the defence. They were internal photographs and for that reason extremely difficult to interpret.
In cross examination, Professor Crane dismissed any suggestion that the cause of death might have been due to any disease associated with the fact that the lymph glands of the deceased were somewhat abnormal. While he accepted that he would not have used the words “manual strangulation” or “throttling” to describe the cause of death, he would nonetheless have ascribed the death to compression of the neck of Margaret Glynn. He stressed more than once that there was no evidence of any natural disease to explain the death.
Evidence in relation to CUSUM Technique
Dr. Michael Farringdon is a chartered engineer. He is a Bachelor of Science in Electronic Engineering and has a Master’s Degree in English Language & Literature. He is also a Doctor of Philosophy in computer science. His expertise lies in linguistic analysis and he is mainly associated with the development of CUSUM analysis which was pioneered by Rev A.Q. Morton, a computer scientist from Glasgow. He has given evidence in a number of criminal trials in this jurisdiction, although the last occasion he did so appears to have been in 1996. The majority of the cases were in 1991 to 1992.
Dr. Farringdon gave evidence of how CUSUM analysis employing the statistical technique of cumulative sum analysis operates to determine the origin of human utterance in either of its two common forms, the written word or the spoken word. The decision about the authorship is made by comparing two graphs. These are a simple type, known as cumulative sum charts, so giving the name to the technique.
In CUSUM analysis it is usually the case that the sentence is chosen as a unit of measure. The sentence is usually not so long that order and arrangement in the word classes being counted are diluted, nor does one usually have a large number of sentences so short that there is little information left in them. Some editing may take place to improve the punctuation. This might involve conflating compound names and by omitting or conflating lists, by omitting very short sentences of one, two, three or four words, by omitting repetition, and by omitting answers which largely repeat words in the preceding question.
One then looks to observe the use of habit words by the subject and draw a comparison between the instances of habit words in known utterances of the subject with disputed material. Only the most frequent habits can be expected to show any positive result. An examination of two, three and four letter words and words beginning with a vowel are typically reflected in a graph. The decision about authorship is then made by comparing two graphs. The first graph shows an aspect of all the sentences in the sample and is based on the average number of words per sentence and shows how the sentences in the sequence vary around that average. A second graph shows how some component part has been used to construct the sentences. Thus a graph can show how nouns or other syntactic have been used to make sentences. In the speech or writing of one person the two graphs will track each other closely.
In the instant case the documents analysed were the transcript of the spoken evidence of the applicant given on the 23rd March, 1983. Two controlled samples of utterance were taken from this document, consisting of one segment of 56 sentences and a second segment of 29 sentences. Both samples were stated to show a consistent habit running through the sample of utterance.
The two controlled samples were then combined into a single sample and this combined sample of 85 sentences was tested for homogeneity and again showed a consistent habit.
Dr. Farringdon then applied a weighted CUSUM factor to obtain probabilities of consistency of habit. He explained that the work of Professor A. F. Bissell ‘Statistical Methods for Text Analysis by Word Counts’ (Swansea: European Business Management School, University of Wales, 1995) provided the basis for this exercise. In brief, this approach means that while all sentences are given equal weight on conventional CUSUM charts, a long sentence is given more weight than a short sentence on the weighted CUSUM chart.
A probability of less than 0.1 indicates that the sample requires further investigation; a probability of less than 0.05 is significant, less than 0.01 very significant, and less than 0.005 highly significant.
Having compared the applicants controlled sample (i.e. his evidence in court) with the confession, Dr. Farringdon gave evidence that the combined sample showed a clear separation of the two graphs indicating that the confession was the output of two or more authors. The weighted CUSUM chart showed a similar deviation, producing an adjusted probability of less than 0.005 which was, in his opinion, highly significant. In Dr. Farringdon’s opinion, the alleged voluntary and dictated confession of the applicant was the mixed utterance of two or more people.
Dr. Farringdon was cross examined vigorously by Mr. O’Connell who suggested that the “so called science of CUSUM technology” had no established scientific validity. Dr. Farringdon accepted that evidence of this nature had been challenged on various occasions when he had endeavoured to give evidence and that it had never been accepted by any court in the United States of America in the context of a criminal trial. Dr. Farringdon accepted that CUSUM was a “minority interest” which was perhaps most usefully deployed in literary detective work, such as endeavours to ascertain if the works of Shakespeare involved more than one author. He himself had applied CUSUM analysis to the works of Henry Fielding.
Asked if he could point to any body of scientific peer review supporting the accuracy of the technique, Dr. Farringdon mentioned his own published work, mostly in the 1980’s, but referred also to a contribution made by him to a work on the topic written by his wife Jill Farringdon in 1996. There was also one publication in relation to the technique in the United States of America, but he accepted that the paper in question was one prepared by his wife who, with him, was co-author of their published work on this topic.
He accepted that editing of text had a degree of subjective input but did not agree that this posed any threat to the integrity of the technique.
Asked by the Court if he was now willing to analyse a blind sample, Dr. Farringdon expressed considerable reservations, stating that this would involve considerable time and expense. It was put to him that the proponents of CUSUM have never reported carrying out such a controlled or blind trial and that Dr. Farringdon had previously refused to co-operate in one such trial with the respondent’s expert, Professor Canter, but insisted that a blind, controlled study was not feasible.
In fairness to Dr. Farringdon, he insisted that the reason for not proceeding with the blind trial in that particular instance was because he and Professor Canter could not agree ground rules for the study.
The report of Professor David Canter was admitted as evidence for the respondent by agreement between the parties.
Professor Canter is Professor of Psychology at the University of Liverpool. His main area of expertise is the systematic analysis of human behaviour in order to identify dominant trends within it. He has made a particular study of procedures that claim to indicate the authorship of contested material. He has written numerous studies of the CUSUM technique which have been published in learned journals.
In summary, he concluded that the CUSUM procedure used by Dr. Farringdon has absolutely no established scientific validity. In his opinion the procedure cannot be relied upon to give any indication whatsoever of the authorship, single or otherwise, of the utterances attributed to the applicant.
He explains that examination of authorship “styles” has been the subject of scholarly debate for over a century. However, all that has been established is that if very large samples of a person’s writings are compared with very large samples of the writings of another person, variations in features of those two set of writings can sometimes be established.
He described a continuum of opinion in relation to the debate on the usefulness of this form of analysis. At one extreme is the view that relatively straightforward measures of a person’s language, such as the proportion of two and three letter words, produced in any circumstance or context, whether writing or speaking, can be utilised to determine whether utterances are those of one or more people. At the other extreme is the view that only with very large amounts of material uttered under very similar circumstances can distinctions between people be determined objectively and these are likely to be particular idiosyncrasies that differ from person to person rather than general aspects of verbalisation. Professor Canter placed himself firmly at the latter end of the continuum. In his opinion there is no evidence that there are specific aspects of a person’s use of words that can be identified as being so specific to that person that they can be used to identify the utterances of that person under a variety of conditions.
In the course of this judgment it is quite impossible to set out the entire detail of Professor Canter’s opinion. His central challenge to CUSUM is to its fundamental claim that the divergence of the two lines on a CUSUM chart is an indicator of mixed authorship. To test such a claim, randomly selected material of single and mixed authorship would need to be subjected to CUSUM analysis without the analyst knowing which was single and which was mixed. The CUSUM analyst would then need to demonstrate that their procedure could reliably distinguish between single and mixed authorship. In any conventional scientific study the researchers would report the degree of effectiveness of their procedure.
Professor Canter further states that CUSUM technology has not found its place in the scientific literature. It is not accepted in courts in the United States of America following recent legal rulings that emphasise that any claims of scientific evidence must overcome the “presumption of unreliability” (see O’Connor & Krauss, 2001) which states that:-
“A principle or method is presumed to be not reasonably reliable if it does not have substantial acceptance within the relevant scientific, technical or specialised community.”
The technique has no such level of acceptance. Professor Canter states that all independent researchers who have carried out studies have found that the CUSUM procedure does not give results that differ from those which would be obtained by mere chance. No objective criteria had been given for determining when the divergence appliance in a CUSUM graph is significant. The recent addition by Dr. Farringdon of “significance testing” to his use of CUSUM charts does not overcome the fundamental problem that he has to show that the statistical difference he finds has some substantive meaning in relation to authorship. A study by Canter & Chester (‘Investigation into the claim of weighted CUSUM in authorship attribution studies’ (1997) Forensic Linguistics 4 (2) 253-261) demonstrated that the statistical procedures used by Farringdon under the general heading of “Weighted CUSUM” does not improve the validity of this procedure above chance level. It merely indicates if the lines on the chart themselves have some notional difference from chance variability, not whether that difference has any relevance to determining authorship.
He was also extremely critical of the many arbitrary qualities of CUSUM whereby punctuation and other editing is introduced by Farringdon to modify the text from what was actually said. The creation and interpretation of the CUSUM chart was thus arbitrary and subjective.
Professor Canter then gave a list of examples illustrating how claims for CUSUM had been undermined, including an exercise whereby Channel 4 in its documentary television programme “Street Legal” managed to prevail upon Rev Morton, the creator of CUSUM, to conduct a blind trial of a number of transcripts. When this was screened in June, 1993 it showed that Morton claimed from his CUSUM analysis that the material he was sent was the work of one person. In fact it was the text from two different authors.
During the course of his evidence, Dr. Farringdon first indicated that he knew very little about this particular episode, but upon being asked by the Court to furnish to it a document from which he was reading, it transpired that the document in question contained a detailed treatment of the Channel 4 programme in question.
Numerous other examples of failed CUSUM analysis appear at para. 18 of Professor Canter’s report. He notes that most of these case examples were reported in 1992 and 1993. He says that since that time there have been no further studies that provide any more support for CUSUM. He believes this indicates that the scientific community decided in the early 1990’s that CUSUM was a non-productive area of research.
In conclusion, Professor Canter does not suggest that Dr. Farringdon or his colleagues are in any way fraudulent, but rather that they cherish a mistaken belief in CUSUM because they do not in fact apply an appropriate scientific model to their studies.
DECISION
At this stage of the proceedings, as counsel agreed, the function of this Court is simply to determine whether the newly discovered facts, if established as such in evidence, render the conviction unsafe and unsatisfactory so that the conviction in this particular case should be quashed.
As was noted by Lynch J. in The People (Director of Public Prosecutions) v. Pringle (No.2) [1997] 2 IR225 (at p. 240):-
“A person who has been convicted of an offence on indictment and who has unsuccessfully appealed to the Court of Criminal Appeal has merely to allege subsequently in a further notice of application to that court that a new or newly discovered fact shows that there has been a miscarriage of justice whereupon he comes within the terms of s. 2 of the Act of 1993 and becomes entitled to apply for an order quashing the conviction…….. all that the applicant had to do was to lodge a notice of application to the Court of Criminal Appeal alleging that a new or newly-discovered fact shows that there has been a miscarriage of justice in his case and he thereby automatically fulfilled the conditions required by s. 2 to bring his case for review by the Court of Criminal Appeal. By virtue of sub-s. 2 of s. 2, the application is to be treated for all purposes as an appeal to the court against the convictions of November, 1980. It follows that at that stage of the application there is no requirement to show an actual miscarriage of justice. Any defect or error in the trial such as would render the convictions unsafe and unsatisfactory is sufficient to lead to a quashing of the convictions and this of course reflects the first basic aim of the Act of 1993 as set out in the long title.
Once the simple mechanics which I have described above have been complied with the application becomes by virtue of sub-s. 2 of s. 2 an appeal to the Court of Criminal Appeal against conviction and is thereafter governed by s. 3 of the Act. Under sub-s. 1 of s. 3 the Court of Criminal Appeal may (a) affirm the conviction, (b) quash the conviction, (c) quash the conviction and order a retrial and (d) quash the conviction and substitute a conviction of another offence.”
At the following page (p. 241) Lynch J. continued:-
“The mere fact that the Court of Criminal Appeal quashes a conviction and does not order a re-trial does not of itself establish that a miscarriage of justice has actually occurred.”
By reference to what criteria should the court now assess and evaluate the evidence which it has heard in the context of this appeal?
This question has already been determined by the Supreme Court in The People (Director of Public Prosecutions) v. Joseph Gannon [1997] 1 I.R. 40. The judgment of Blayney J. delivered in that case makes it clear that the test is not to enquire whether the new material rendered the conviction of the appellant unsafe and unsatisfactory having regard to the course actually taken by the defence at trial but rather to ascertain whether the defence could have used the material in such a way as to raise a doubt about a significant element in the prosecution case and the possibility that a different approach by the defence may have led to an acquittal. In the course of his judgment, Blayney J. stated as follows (at pp.47 to 48):-
“The court could not conclude for certain that the advent of the newly discovered material would have no effect on the manner in which the defence 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”.
Thus 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. The court can not simply have regard only to the course actually taken by the defence at trial.
The Court must therefore evaluate the evidence in relation to the newly discovered fact, firstly to ascertain if the evidence establishes the newly discovered fact, secondly to assess the weight and credibility of such evidence by reference to an objective standard to determine whether defence counsel could have utilised the newly discovered material in such a way as to raise a reasonable doubt in the minds of the jury about a significant element in the prosecution case.
DECISION
Turning, firstly, to the medical evidence, the Court is satisfied that the missing photographs do constitute evidence which warrant the description of being “newly discovered facts”. They were elements of the overall post mortem photographic evidence which were not given to the defence at the time of trial, although it is not suggested that this was done deliberately or that any suspicious circumstances surround their non-production at that time.
That said, the Court is satisfied that they would have been of little benefit to the defence in this case. Firstly, the Court has considerable doubts as to whether photographs of such a prejudicial nature would ever have been introduced in evidence and believes that the defence would have been more likely to object to their proof than anything else. Secondly, having considered the expert evidence of Dr. Purdue and Professor Crane, and while of the view that these internal photographs – taken in isolation – would not have confirmed bruising of the neck or a diagnosis of cause of death as either strangulation or neck compression, the Court must nonetheless bear in mind that these photographs are not to be taken in isolation on the issue of causation, but must be considered in the context of the other photographs, the position of the body as subsequently found, the examination, findings and evidence of Dr. Harbison and, naturally, the evidence of the two witnesses heard on the appeal.
Taking all this evidence together, the Court is greatly assisted by the evidence given by Professor Crane. The Court specifically notes that Professor Crane based his conclusions not only on the findings made by Dr. Harbison, but also on what he saw as findings of considerable significance, namely the presence of areas of discolouration on the right parietal area of the skull of the deceased and over her right jaw. This patchy area of discolouration was on the side of the body which was uppermost in the bed and thus, in Professor Crane’s opinion, was not what one would expect to find if discolouration had been caused by putrefaction of staining. One would expect uniform discolouration in either of those circumstances. Bloodstaining tends to follow the direction of gravity and was more likely in this instance to be found on those portions of the body in contact with the bed. The body was burnt predominantly on the left side where it was in contact with the bed. Putrefaction tends to be uniform where it is evident. The Court is satisfied there is thus a very sound basis for the opinion of Professor Crane that, whatever about the findings in relation to the neck, the findings in relation to the skull and jaw are bruising and nothing else.
In relation to the neck it is clear that bruising cannot be excluded. That it was bruising was the professional opinion of Dr. Harbison whose many, many years of professional expertise must be accorded proper and due weight in any review of the type being undertaken in this case. He was the man on the spot and the person best able to make an assessment from the primary material consisting of the remains of the deceased. No witness can exclude compression of the neck as a cause of death. Ultimately the difference between this diagnosis and one of strangulation is more a matter of semantics than substance. What must be excluded on the evidence, however, is any accidental or natural cause of death. Indeed, the Court considers the possibility of both Martin Glynn and Margaret Glynn dying of natural causes within minutes or a few hours of each other as something which is totally ruled out on the evidence in this case, particularly having regard to the occurrence of the fire which clearly took place after Margaret Glynn had died. The Court does not believe therefore that any further cross – examination of Dr. Harbison by reference to the absent photographs would have thrown any real doubt on his diagnosis of cause of death
In relation to the CUSUM analysis, the Court in this case prefers the evidence of Professor Canter in relation to the reliability of the CUSUM technique. The Court is not satisfied that the technique has a properly established scientific provenance or that it has achieved the requisite degree of expert peer approval. The Court accepts the various criticisms made of the technique by Professor Canter, but will refrain from making any declaration which would have the effect of treating the CUSUM technique as bereft of scientific value. The Court will simply confine itself to saying that the onus of proof has not been discharged in this case to satisfy the Court that it is a science upon which reliance can be placed in this particular case. It may well be that further scientific advances in this area may yield a quite different result and outcome in other cases in future years.
The Court was also left in a state of considerable unease by the evidence given by Dr. Farringdon. On several occasions he declined to answer questions put to him in cross-examination, or prevaricated before giving a reply which was often not a reply to the particular question. In particular, the court noted that Dr. Farringdon, when invited to do so, was unwilling to submit to a blind trial in respect of the CUSUM technique, or at least offered various reasons why he should not do so. The Court acknowledges, however, that Dr. Farringdon is now in retirement and that the imposition of such a requirement might have been a particularly severe burden in the circumstances
It follows therefore that the Court does not accept that a “newly discovered fact” has been established under this heading of appeal and, that being so, it is unnecessary to say anything more. It follows that the Court is satisfied that the confession of the applicant, which dovetails with the other evidence led by the prosecution in this particular case, was given in a voluntary manner and was given by the applicant alone.
The applicant has not, in respect of the one newly discovered fact established in evidence, put in question the safety of the conviction in this case. The court will therefore refuse the application made under s. 2 of the Criminal Procedure Act, 1993.