Trial on Indictment I
Cases
Devereaux v Kotsonouris
[1992] ILRM 140
Lavan J
By order of the High Court made ex parte on 26 June 1989 for leave to apply for an order of certiorari by way of an application for judicial review in respect of an order made in proceedings entitled ‘Complainant, Director of Public Prosecutions at the suit of Detective Garda George Kyne and defendant William Devereaux’ on 10 May 1989 it was ordered (inter alia):
1. that the Director of Public Prosecutions be added as respondent herein.
2. that the applicant do have leave to apply for an order of certiorari by way of application for judicial review in respect of the said order on the following grounds:
that there is no offence contrary to s.6(1)(c)(d) of the Criminal Justice Act 1984.
At the hearing counsel for the applicant was granted leave to raise a further ground namely:
that the charge as laid by the second respondent was bad for duplicity as a result whereof the order made by the first respondent was likewise bad for duplicity.
By notice of motion dated 4 July 1989 the applicant sought an order of judicial review in the aforesaid terms.
The charge sheet in respect of which the applicant was charged recited:
for that you the said accused did on 16 November 1988 at Harcourt Terrace Garda Station within the Dublin Metropolitan District while detained pursuant to s. 4 of the Criminal Justice Act 1984 unlawfully obstruct Detective Garda George Kyne, acting under the authority of Detective Superintendent Noel Conroy, by refusing to allow yourself to be photographed or fingerprinted — contrary to s. 6(1)(c)(d) Criminal Justice Act 1984.
The applicant, in his grounding affidavit sworn 22 June 1989, deposed:
That he did on 10 May 1989 appear before the respondent to answer the aforesaid charge. That he was represented by counsel and solicitor and that he pleaded ‘not guilty’ to the charges before the court.
At the conclusion of the case for the prosecution his counsel applied to the respondent for a direction on several grounds including, inter alia, that there was no offence known to law as set out in the summons, that is s. 6(1)(c)(d) of the Criminal Justice Act 1984 and also that the charge sheet was bad in that it charged two separate offences namely not allowing himself to be photographed or fingerprinted.
The respondent refused all applications for a direction and declined to order the charge sheet to be amended. At the close of his case his counsel again renewed the application for a direction and this was refused. In the result the respondent proceeded to convict the applicant of the alleged offence. The order dated 24 May 1989 recited:
On 10 May 1989, at the Metropolitan District Court sitting at Court 5, Chancery Street, Dublin 7 before Mary Kotsonouris, one of the Justices of the said District Court assigned to the said District, a complaint was heard that the above named accused, 16 November 1988 at Harcourt Terrace Garda Station, Dublin 2 within the Dublin Metropolitan District while detained pursuant to s. 4 of the Criminal Justice Act 1984 [did] unlawfully obstruct Detective Garda George Kyne acting under the authority of Detective Superintendent Noel Conroy, by refusing to allow himself to be photographed or fingerprinted — contrary to s. 6(1)(c)(d) of the Criminal Justice Act 1984.
It was adjudged that the said defendant be convicted of the said offence and be imprisoned therefor in Mountjoy Prison in the said District for a period of 8 months.
Signed by the said District Justice.
By notice of opposition dated 9 October 1989 the respondent and notice party filed a notice of opposition pursuant to the provisions of O. 84 r 22(4). The grounds were as follows:
1. An offence is created by s. 6 of the Criminal Justice Act 1984 and in particular by subs. (4) thereof.
2. The applicant was not prejudiced by the reference in the charge against him to s. 6(1)(c) and (d) as the same were referable to the powers sought to be exercised against the applicant.
3. Such error as may exist in the reference to the Criminal Justice Act 1984 in the conviction of the applicant is not such as to vitiate the conviction.
4. The reference of subs. (1)(c) and (d) in the charge and conviction against the applicant herein are surplusage and the correct section was invoked in the charge and conviction.
5. No prejudice has been caused to the applicant and the reference to the said subsections are such as to have directed the applicant’s attention to the circumstances of the said obstruction charged against him.
6. Without prejudice to the foregoing the High Court should amend the said order of the District Court.
7. The applicant has appealed the said conviction to the Circuit Court which has jurisdiction to amend any error in the order complained of. In the circumstances of the said appeal the High Court should refuse the relief sought.
8. Without prejudice to the foregoing, if the High Court should grant the applicant the relief sought herein, the High Court should remit the case against the applicant to the District Court.
The notice of opposition was grounded on the affidavit of Detective Garda George Kyne who deposed that evidence was given by Detective Superintendent Noel Conroy as to an order given by him to the deponent to authorise the deponent to take fingerprints of and to photograph the applicant. Detective Superintendent Conroy was cross-examined as to the grounds for such authorisation and he was questioned as to what was done with the fingerprints of people who were fingerprinted. He was further questioned as to why a new set of prints were needed and would an old set which may already be in the possession of the gardaí not suffice.
The deponent then gave evidence for the prosecution in relation to the applicant’s refusal to allow of the taking of his fingerprints and to permit himself to be photographed. He was questioned in relation to these matters. Counsel for the applicant put the Criminal Justice Act 1984 to him and asked him to read out the relevant section upon which he relied. This procedure was improper and unnecessary. The witness relied upon s. 6(4) of the aforesaid Act.
Notice of appeal dated 10 May 1989 was lodged on behalf of the applicant against the said conviction and sentence. The said appeal came before the Circuit Court on 17 July 1989 and the matter was adjourned by the Circuit Court judge generally pending the determination by the High Court of this application for judicial review.
In relation to the first ground it is clear that the offences laid arise under s. 6(4) of the Act.
In relation to the second ground, I am satisfied that s. 6(4) creates a number of separate offences arising in respect of the powers conferred by s. 6(1).
To lay more than one charge of ‘obstructing’ or ‘attempting to obstruct’ is in my view duplicitous having regard to the opinions expressed in State (McGroddy) v Carr [1975] IR 275; State (McLoughlin) v Shannon [1948] IR 439; People (Attorney General) v Blogh [1958] IR 91.
As the applicant was charged under s. 6 of the Act, I hold that the district justice was acting within jurisdiction and therefore this application is not governed by the decision in State (Vozza) v O’Floinn [1957] IR 227.
It is in my view, open to the Circuit Court on foot of the decision of the Divisional Court of the High Court in State (McLoughlin) v Shannon and O’Sullivan [1948] IR 439 to make a fresh order to confirm, vary or reverse the decision of the District Court.
It seems to me appropriate to deal with the situation in this case as to the functions of the appropriate court — that is the Circuit Court on appeal or the High Court on an application for judicial review in such circumstances as these.
In State (McLoughlin) v Shannon the Circuit Court Judge affirmed the conviction but held that s. 51 of the Road Traffic Act 1933 constituted two offences and therefore the order of the District Court was varied and two convictions were recorded. Three judges of the High Court — Haugh, Davitt and Dickson JJ held that:
The President of the Circuit Court had power to make an order varying the order of the District Court if that order were, in his opinion, wrong.
In State (Roche) v Delap [1980] IR 170 it was the unanimous opinion of the Supreme Court, Henchy, Griffin and Parke JJ that as the prosecutor’s appeal against the order of the District Court was pending in the Circuit Court the remedy of certiorari would not be made available to the prosecutor for the purposes of quashing the order.
Lest there be any doubt as to my view of the issue I should say as follows. I am of the view that the applicant was — if the evidence so established to the satisfaction of the first respondent — on any interpretation guilty of one of two offences as provided for by s. 6(4) of the Act and the evidence on affidavit as deposed to by the applicant and the respondent supports this contention.
I am satisfied that the submissions made by counsel on behalf of the respondent and notice party are correct. In my view this case falls to be determined on the test set out by the decision of the Supreme Court in State (Roche) v Delap [1980] IR 170 at 173 in which that court held unaminously that it was:
Not within the competence of the High Court to intervene by certiorari to quash a conviction and sentence when an appeal had not alone been taken to the Circuit Court but that appeal was actually in process of being heard in that court.
By virtue of the aforesaid decision I hold that it is not within the competence of this Court to permit the applicant to intervene by certiorari.
In the result I will decline to make any order on this application.
People (DPP) v Meehan
[2002] 3 I.R. 139
Abbot J.
27th June, 2002
The accused was convicted on the 22nd May, 2002, by the Special Criminal Court on six counts of money laundering contrary to s. 31 of the Criminal Justice Act, 1994. He is currently serving the sentence of five years’ imprisonment imposed on him by the court in respect of each count concurrently.
Counts 1, 3 and 5 relate to offences of money laundering contrary to s. 31(3) of the Act of 1994 and counts 2, 4 and 6 relate to charges of money laundering contrary to s. 31(3) of the same Act.
The money laundering is alleged to have taken place on various dates in 1995 and 1996 and involved various bank draft transactions and a cheque transaction in Dublin and in Vienna, Austria.
The accused is the father of Brian Meehan and the prosecution case is that the money in question was derived by the said Brian Meehan from illegal tobacco importation and gambling from 1994 to 1995 and that, subsequently, the main source of the money was drug dealing or trafficking, certainly from 1996 on. In its judgment, the Special Criminal Court was not satisfied that the State had established the degree of proof necessary to secure a conviction in respect of money laundering derived from drug trafficking. The evidence was that the accused had acknowledged that it was believed that the money was generated from sales of tobacco and from gambling, and, that there was no evidence that he knew or believed that the source of the money had changed in 1996, to drug trafficking. By application dated the 17th October, 2002, the accused applied for leave to appeal against his said convictions.
The grounds of appeal against conviction are as follows:-
1. the conviction is bad on its face for duplicity;
2. the court erred in not acceding to the grounds relied on, on the application by the defence at the close of the prosecution case.
The submissions on behalf of the accused clarify the grounds of appeal further in that ground 2 has been elaborated into two grounds as follows:-
(a) the prosecution did not prove that the offences occurred within the State and
(b) that there was no evidence that the removal of monies from the State was for the purpose of assisting another to avoid a confiscation order or a criminal prosecution. This latter sub-ground of appeal relates only to counts 2, 4 and 6 of the indictment.
The accused did not proceed at the appeal before this court with an appeal on the basis of part (a) of ground 2 relating to the occurrence of the offence within the State.
Ground 1 – Duplicity
Council for the accused conceded that s. 5 of the Criminal Justice (Administration) Act, 1924, allowed for the charging of an offence by alleging alternative acts or means by which the offence might be committed but emphasised that the aspect of all counts on the indictment dealing with whether the monies were the proceeds of drug trafficking or other criminal activity related not to different ways of committing the single offence of money laundering but to two entirely different offences. Two entirely different and distinct offences were disclosed and all counts were bad for duplicity.
The defence relied on the definitions contained in the Act of 1994 relating to drug trafficking and drug trafficking offences and further submitted that an additional factor which supported duplicate interpretation was that the conviction recorded was bad for uncertainty. The conviction, including as it did a reference to drug trafficking was claimed to cast an unwarranted stigma on the accused in circumstances where he had been exonerated by the court of trial of handling the proceeds of drug trafficking. The defence relied on the following authorities:-
(i) The State (McLoughlin) v. Shannon [1948] I.R. 439.
(ii) The People (Attorney General) v. Blogh [1958] I.R. 91.
(iii) The State (McGroddy) v. Carr [1975] I.R. 275.
(iv) Devereaux v. Kotsonouris [1992] I.L.R.M. 140.
(v) E.F. Ryan and P.P. McGee (1983), The Irish Criminal Process, Dublin Mercier Press, p. 252.
(vi) Archbold (1997, 1999), Pleading Evidence and Practice London: Sweet & Maxwell, para. 138 – 139.
(vii) The People (Director of Public Prosecutions) v. Walsh (Unreported, Court of Criminal Appeal, 11th February, 2002).
It was submitted that the aforesaid authorities attempted to set out where the line lay between a single offence committed in different ways and the creation of two different offences. As was underlined by Geoghegan J., presiding in the Court of Criminal Appeal in February, 2002, in The People (Director of Public Prosecutions) v. Walsh (Unreported, Court of Criminal Appeal, 11th February, 2002), it is difficult to say where such a line exists and it often falls to be decided on a case by case basis.
The prosecutor, in its submission, stated that what was at issue here was the intention of the legislature. In ascertaining that intention, the prosecutor submitted that the general tendency has been towards the simplification of charges. This is in contrast with such a piece of legislation as the Forgery Act, 1913, when it was necessary to pick specifically from a number of precisely defined activities in relation to precisely defined instruments, the offence alleged. It was submitted that there is one offence in s. 31(2) and that is of dealing with property which is the proceeds of any criminal activity for the purpose of assisting another person to avoid prosecution or a confiscation order. A similar submission was made in respect of an offence under s. 31(3).
The law in relation to duplicity was submitted by the prosecutor to be conveniently set out in Archbold Criminal Pleading Evidence and Practice London: Sweet & Maxwell, (2000) paras. 1 – 135. It was submitted that there was no material from which it could have been inferred that there was any confusion in the mind of the accused as to the nature of the case which he was meeting. It was further submitted that he admitted certain activities with regard to his son and indicated that, according to his means of knowledge, he was assisting in the disposal of funds from an illegal cigarette smuggling operation. It was submitted by the prosecutor that acts of handling the proceeds of another person’s drug trafficking or other criminal activity are equally discreditable. Section 5 of the Criminal Justice (Administration) Act, 1924, allows the preferment of an indictment in the same form as an enactment which prohibits any one of a number of different acts in the alternative, or with different intentions or mental states. It was submitted that the judgment of the court of trial makes clear that what was involved in this case was continual activity in relation to the proceeds of crime which, in terms of the mental element, was that aspect of the activity to which the accused had confessed, namely hiding the proceeds of cigarette smuggling. Whereas the nature of the activity and the amounts of money had changed, as from January, 1996, the court was entitled to hold that there was a reasonable doubt as to whether or not the accused had reassessed his involvement, or whether he came to the conclusion that the greatly increased amounts of money coming in were referable to drugs and not the existing criminal activity. The prosecutor relied on R. v. (Molloy) [1921] 2 K.B. 364 and The State (McGroddy) v. Carr [1975] I.R. 275.
The law
Section 3(1) of the Criminal Justice Act, 1994, provides as follows:-
“‘[D]rug trafficking’ means doing or being concerned in any of the following, whether in the State or elsewhere, that is to say –
(a) producing or supplying a controlled drug where the production or supply contravenes any regulations made under section 5 of the Misuse of Drugs Act, 1977, and in force at the material time (whether before or after the commencement of the relevant provision of this Act) or a corresponding law,
(b) transporting or storing a controlled drug where the possession of the drug contravenes section 3 of that Act or a corresponding law,
(c) importing or exporting a controlled drug where importation or exportation contravenes any such regulations as mentioned in paragraph (a) of this definition or a corresponding law.
(d) doing any act, whether in the State or elsewhere and whether before or after the commencement of the relevant provision of this Act, in relation to property obtained, whether directly or indirectly, from anything done in relation to a controlled drug, that amounts to an offence under section 31 of this Act or would have amounted to such an offence if that section had been in operation at the time when the act was done or, in the case of an act done in a country or a territory outside the State, would amount or have amounted to such an offence if done in corresponding circumstances in the State (and for the purpose of this definition the references in subsections (1) and (2) of the said section 31 to removing property from the State shall include references to removing it from the country or territory in question), or
(e) using any ship for illicit traffic in controlled drugs in contravention of section 33 or 34 of this Act.
‘[D]rug trafficking offence’ means any of the following –
(a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977, involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug,
(b)
(c)
(d)
(e) an offence under section 31 of this Act in relation to the proceeds of drug trafficking.”
“‘Confiscation order’ means an order made under Section 4(4) or 9(1) of this Act.”
Section 4 in Part II of the Act of 1994 deals with confiscation and, in particular, ss. 4 to 8 enact detailed provisions for the confiscation of the proceeds of offences other than drug trafficking offences. Sections 10 to 18 contain provisions in relation to procedures for recovery of the proceeds of crime maintaining the distinction between proceeds of drug trafficking and proceeds of other crimes.
Part III of the Act of 1994, deals with enforcement.
Part IV deals with money laundering. Section 31 of the Act of 1994, provides as follows:-
¦
(2) A person shall be guilty of an offence if, knowing or believing that any property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or other criminal activity, he –
(a) conceals or disguises that property, or
(b) converts or transfers that property or removes it from the State,
for the purpose of assisting any person to avoid prosecution for an offence or the making or enforcement of a confiscation order.
(3) A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person’s proceeds of drug trafficking or other criminal activity.”
The remaining parts of the Act of 1994 deal with, inter alia,drug trafficking money imported or exported in case, international co-operation by way of external confiscation orders, external forfeiture orders and other measures. It is noteworthy that the distinction between drug trafficking offences and other offences is maintained in relation to the provisions of s. 47 providing for external forfeiture orders, for example, subs. (5) of s. 47 provides;-
“This section applies to any offence which corresponds to –
(a) an offence under the Misuse of Drugs Act, 1977,
(b) a drug trafficking offence, or
(c) an offence in respect of which a confiscation order could be made under section 9 of this Act.”
Section 4 of the Act of 1994 is amended by s. 25 of the Criminal Justice Act, 1999, by the substitution of the following subss. (1), (2) and (3):-
“(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one of more drug trafficking offences of which he has been convicted on indictment, the court shall, subject to subsections (2) and (3), determine whether the person has benefited from drug trafficking.
(2) A court may decide not to make a determination under subsection (1) of this section, where, following such preliminary inquiries, if any, as it may make, it is satisfied that having regard to :-
(a)
(b)
(3) The duty of a court to make a determination under subsection (1) of this section shall not apply if the convicted person has died or absconded, and accordingly the provisions of section 13 of this Act shall apply in such a case”
The court has considered the authorities cited by the accused and the reliance placed by the prosecutor on the majority decision of the Supreme Court in The State (McGroddy) v. Carr [1975] I.R. 275. However, as pointed out in the judgment of this court by Geoghegan J. in The People (Director of Public Prosecutions) v. Walsh (Unreported, Court of Criminal Appeal, 11th February, 2002), the question as to where the line should be drawn between a single offence committed in two different ways as against the creation of two different offences often fell to be decided on a case by case basis. It is on this basis that this court finds it necessary and productive to examine the detailed definitions and provisions of the Act of 1994, as amended, in order to determine whether, in fact, the relevant subsections create two different offences or merely describe the commission of one in two different ways.
The court finds that the definitions contained in the Act of 1994 are considerable help in deciding the issue as to whether the count relates to two different offences. For instance in section 3(1)(e): ‘drug trafficking offence’ means, inter alia, “an offence under section 31 of this Act in relation to the proceeds of drug trafficking”.
Had the reference to the proceeds of drug trafficking been left out of this definition, the interpretation might have pointed more strongly towards an offence consisting of alternative ways of committing the same crime.
The court is further impressed not so much with the argument of the accused concerning the additional social stigma attached to a conviction of laundering money the proceeds of drug trafficking as opposed to other criminal activity, as with the more detailed consequential provisions (principally dealing with the confiscation orders) which come into play specifically when a drug trafficking offence is committed. The court notes that ss. 4 to 8, as amended, deal specifically with confiscation orders following conviction on drug trafficking offences. Section 9 provides for application for a confiscation order when “a person has been sentenced or otherwise dealt with in respect of an offence other than a drug trafficking offence ” The distinction continues to be made elsewhere in the Act of 1994, as already highlighted in the above summary of its provisions.
A conviction based on the count containing the two alternatives of drug trafficking and other criminal activity is, therefore, not merely uncertain and unworkable from the point of view of the administration of the Act, as amended, it is patently unjust that the accused should have recorded against him a conviction comprising a reference to drug trafficking
when the court of trial was not satisfied as to the existence of evidence against him on that issue.
In the circumstances where this court finds that the convictions in respect of the counts are bad for duplicity, the court will quash the conviction on all counts. It is, therefore, unnecessary to consider the other grounds of appeal.
O’B. v Pattwell
[1994] 2 ILRM 465
O’Flaherty J
This is an appeal from the judgment and order of the High Court (O’Hanlon J) of 9 September 1992 in proceedings in which the applicant challenged the validity of the order of District Judge Pattwell made in apparent exercise of his powers under the Criminal Procedure Act 1967 sending the applicant forward for trial to the Central Criminal Court on four charges (see [1993] ILRM 614).
I gratefully adopt the summary of the background facts and the course that the case took in the High Court from the learned High Court judge’s judgment.
The first charge was one of indecent assault contrary to common law and s. 10 of the Criminal Law (Rape) Act 1981. The second was one of unlawful carnal knowledge of a girl under the age of 15 years, contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935. The third was one of unlawful carnal knowledge of a named female forcibly and against her will contrary to common law. These were the charges contained in the written statement of charges served on the applicant prior to the preliminary hearing in the District Court, in compliance with the provisions of s. 6(1)(a) of the Criminal Procedure Act 1967.
In the course of the preliminary hearing before the first named respondent, the said respondent decided that there was a sufficient case to put the applicant on trial for the said three offences. He also concluded that there was a sufficient case to put the applicant on trial for the further offence of buggery committed against the same female contrary to s. 61 of the Offences Against the Person Act 1861. He made an order in relation to all four charges that the applicant be sent forward for trial on the said offences to the Central Criminal Court.
The applicant sought an order of certiorari to quash the said return for trial claiming:
(1) that in relation to the second and third charges it was not permissible to send the applicant forward for trial on both the said charges and that the prosecution had to be put to its election as to which of the said charges was to be presented against the applicant;
(2) that, in relation to the fourth charge, the first named respondent had no jurisdiction to add that charge to the charges which had already been brought against the applicant unless he did so in substitution for one of the charges which had already been brought against the applicant.
Counsel for the applicant, Mr Durcan SC, in support of the first ground, relied on the provisions of s. 14 of the Interpretation Act 1937 and on the decisions of the Court of Criminal Appeal in the cases of People (Attorney General) v. Dermody [1956] IR 307, and People (Attorney General) v. Coughlan (1968) 1 Frewen 325.
He also submitted that since on a charge of rape it was permissible under s. 3 of the 1935 Act to find an accused guilty of an offence under s. 1(i) of the same Act that that went to show that since the power was given by the legislature so to convict then it followed that it was not permissible to include an express count in the indictment in addition to a count of rape. I can dispose of this latter submission shortly. Just because a particular statute provides for the conviction of an offence as an alternative to a particular count laid in the indictment does not make it wrong to include an express count in the indictment. Indeed, in most cases it will be the right thing to do to make clear to a jury what charges they have to consider. It will be clear to a jury what the charges are if they are all set forth in express terms as separate counts in an indictment instead of requiring a jury to make a possible finding of an offence the precise ingredients of which are not set forth in the indictment.
To deal with the rest of counsel’s submission on this first point, s. 14 of the Interpretation Act 1937 reads as follows:
14. — Where any act, whether of commission or omission, constitutes an offence under two or more statutes or under a statute and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those statutes or at common law, but shall not be liable to be punished twice for the same offence.
In Dermody’s case the appellant was convicted on two counts of rape of a girl under 14 years of age, two of unlawful carnal knowledge of the same girl and two of attempted carnal knowledge. Each set of three counts of rape, of carnal knowledge and of attempted carnal knowledge related to one incident only. He was sentenced to three years’ penal servitude in respect of each count, the sentences to run concurrently.
It was held by the Court of Criminal Appeal that in view of the provisions of s. 14 of the Interpretation Act 1937, the appellant could not properly be charged both with rape and with unlawful carnal knowledge in respect of the same incident and that if the jury accepted that the appellant was guilty of the substantive offence of rape or of unlawful carnal knowledge, it was not properly open to them to convict the appellant of attempted carnal knowledge in respect of the same incident.
The convictions on the charges of rape and attempted carnal knowledge were, accordingly, struck out by the Court of Criminal Appeal.
Maguire CJ delivering the judgment of the court, dealt with this aspect of the appeal as follows (at p. 313):
Although not raised by the appellant either at the trial or here, the court thought it right to draw attention to the form of the indictment and also to the inconsistency between the convictions on the first two counts and that on the third, and similarly between the convictions on the fourth and fifth counts and that on the sixth. As regards the form of the indictment, the provisions of s. 14 of the Interpretation Act 1937, make it clear that an accused should not be charged with the same offence both at common law and under a statute. In our opinion, this applies here and one or other of the convictions on the first and second and fourth and fifth counts must go. Having regard to the identity of punishment it makes no matter which. The court will set aside the two convictions of rape.
The matter arose for consideration again in Coughlan’s case, when Haugh J (sitting with Murnaghan J and Butler J) in the Court of Criminal Appeal, commented (at p. 329) as follows in a case where the applicant had again been convicted of rape and of having unlawful carnal knowledge of a girl under the age of 15 years, and sentenced on both charges — both charges arising out of the same incident:
All the grounds in the notice of application for leave to appeal, save three, relate to the evidence of the prosecutrix. The first of these relates to the fact that the applicant was charged, convicted and sentenced on two counts arising out of the same act; the one charging a common law offence, the other statutory. Mr Johnston ( recte Johnson), whose entire argument was most able and persuasive, relied on the decision of this Court in People (Attorney General) v. Dermody in support of the proposition that, in view of s. 14 of the Interpretation Act 1937, the applicant could not properly be charged with both rape and unlawful carnal knowledge in respect of the same incident. Alternatively, he says, the applicant could not have been convicted of both offences, and, in the further alternative, should not have been punished for both. The court has considered the judgment in the case cited and the relevant statutory provision. It would appear that under the statute an offender cannot be punished twice for the same offence. It is, perhaps, open to argument whether rape and the offence of unlawful carnal knowledge created by s. 1(1) of the Criminal Law (Amendment) Act 1935 are ‘the same offence’ within the meaning of these words in s. 14 of the Interpretation Act, in view of the fact that the consent of the prosecutrix is a material element in the former offence whereas in the latter it is not. This Court expresses no opinion on that point but has decided to follow the decision in Dermody’s case and quash one of the convictions. No arguments were advanced by counsel for the Attorney General in reply to Mr Johnston’s submissions on this point and, in fact, he expressly conceded it.
As the learned High Court judge pointed out in both Dermody’s and Coughlan’s case the Court of Criminal Appeal was faced with a position where the accused man had been convicted of rape at common law and the statutory offence of unlawful carnal knowledge of a girl under 15 years of age, and in both cases the two offences arose out of the same incident.
He concluded that the real effect of the decision in each case was that the double convictions could not stand, having regard to the provisions of s. 14 of the Interpretation Act 1937 and in each case the conviction for rape was quashed, leaving in force the conviction on the statutory charge and the sentence imposed in relation thereto.
The learned High Court judge was, of course, bound by the decisions of the Court of Criminal Appeal in both these cases. We are not so bound and must look at them afresh.
It seems to me impossible to conclude that the offence of rape at common law is the same as what, in a form of forensic shorthand, may be described as ‘statutory rape’. At common law, rape consists in having unlawful sexual intercourse with a woman without her consent by force, fear or fraud: 1 East PC 434; and see 1 Hale 627 et seq.S. 2(1) of the Criminal Law (Rape) Act 1981 provides that a man commits rape if:
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it, and
(b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she does or does not consent to it.
In the case of an offence under s. 1(1) of the 1935 Act consent is irrelevant. There must be a great difference between rape attended by circumstances of force and degradation and a case of having unlawful carnal knowledge with a young girl who consents to the act of intercourse. Both are reprehensible offences but one is more reprehensible than the other. Indeed, s. 3 of the 1935 Act, which Mr Durcan SC relied on for another purpose, would seem to put the matter beyond doubt. And see Attorney General (Shaughnessy) v. Ryan (1957) 91 ILTR 164.
I would, therefore, overrule both Dermody and Coughlan insofar as they lay down that rape and the offence under s. 1(1) of the 1935 Act are the same offence and are embraced by s. 14 of the Interpretation Act 1937.
It follows, therefore, as far as this case is concerned that it should be permissible to include a count of rape, contrary to common law as well as a count alleging unlawful carnal knowledge contrary to s. 1(1) of the 1935 Act in the indictment. No doubt, the judge when he comes to charge the jury — assuming the case goes to the jury — will point out that if there is a conviction in respect of rape then it will not be necessary for the jury to go further in relation to the 1935 Act count but that if they were not satisfied that there was rape, as it has been defined, they should then consider whether there was an offence committed under the Act of 1935. What is prohibited is that the accused should be punished twice for the same offence meaning thereby the same actus reus constituting an offence.
The second issue raised in this application concerned the extent of the power given to the district judge, when exercising his jurisdiction under the Criminal Procedure Act 1967, to cause an accused person who is being sent forward for trial to be charged with an offence other than the offence or offences specified in the statement of charges which must be served on him in accordance with s. 6 of the Act. S. 8(2) of the Act provides:
If the judge is of the opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence, proceed in accordance with s. 7(4), which shall have effect with the omission of the words ‘if he is sent forward for trial’ in paragraph (a), and, unless s. 13 applies, send him forward for trial.
The district judge was of the opinion in the present case that there was a sufficient case to put the applicant on trial for an indictable offence (buggery, contrary to s. 61 of the Offences Against the Person Act 1861) other than those with which he had already been charged and caused him to be charged with that offence and sent him forward for trial.
Before us, Mr Durcan has submitted that the power contained in s. 8(2) of the Act relates only to the entitlement of the district judge to substitute a new charge for one that is already there. He points to the wording of s. 18 of the Act which entitles the Director of Public Prosecutions to include further counts in an indictment and which entitlement was upheld by this Court in O’Shea v. Director of Public Prosecutions [1988] IR 655; [1989] ILRM 309.
S. 18 is as follows:
Where a person has been sent forward for trial under this part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under s. 7) and exhibits considered by the judge at the preliminary examination, being counts which may lawfully be joined in the same indictment.
Mr Durcan asks why if the section entitles the prosecution to include an additional count either in substitution for or in addition to counts charging offences for which an accused has been sent forward for trial was not similar wording availed of in s. 8(2)? However, it seems to me that while the wording in the respective sections is not identical there is no requirement in s. 8(2) that the new charge has to be in substitution for an existing charge.
In any event, the matter would seem to be of academic interest only because even if the district judge never added a new charge it would be open to the Director of Public Prosecutions to add an additional count in the indictment if he thought that the potential evidence justified it.
Before concluding this judgment I would, however, wish to endorse — but with a modification — something that was said by the Court of Criminal Appeal in People (Attorney General) v. Coughlan. At p. 332 of Frewen, Volume 1, Haugh J, delivering the judgment of the court, pointed out that very often it may be appropriate to have only one count in the case of young girls. As the court pointed out there by bringing a charge of rape the prosecution took on the onus of establishing that the carnal knowledge of the prosecutrix by the accused was had by force or without her consent. This involved calling the prosecutrix as a witness. The court went on to say:
This Court is of the opinion that prosecutors in cases involving the carnal knowledge of young girls should seriously consider the possibility of being able to sustain a conviction without the necessity of calling such young girls as witnesses and thereby exposing them to the ordeal of having to recount in court what must have been for them a terrifying experience.
The modification I would wish to add to that quotation is that this may very often be the correct approach but not invariably so. There will be cases where the prosecution is entitled — and should — insist that the more serious charge should proceed.
O’Connell v Director of Public Prosecutions
, High Court, 30 July 1993; [1994] 2 ILRM 21
Blayney J
This is an appeal by both the applicant and the first named respondent against the order of Keane J in the High Court — the respondent’s appeal being against so much of the order as declared that the addition by the Director of Public Prosecutions of two counts to an indictment preferred against the applicant was ultra vires the powers of the director under s. 18 of the Criminal Procedure Act 1967, and the applicant’s appeal being against so much of the order as refused to declare that the addition by the Director of Public Prosecutions of count No. 5 in the same indictment was ultra vires.
The background facts to the appeals are set out very fully in the judgment about to be delivered by Denham J so I propose to refer only to such of them as are necessary to make comprehensible the conclusion I have reached in the case.
The two counts which were added into the indictment by the Director of Public Prosecutions were as follows:
Count No. 3 Statement of Offence
Count No. 3 Importation of controlled drug contrary to s. 21(2) of the Misuse of Drugs Act 1977 in contravention of article 4(1)(c) of the Misuse of Drugs Regulations 1988, made under s. 5 of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan on 23 July 1991 at the Pier, Courtmacsherry, in the County of Cork, unlawfully imported into the State the controlled drug cannabis resin.
Count No. 4. Statement of Offence
Count No. 4. Conspiracy to import into the State the controlled drug cannabis resin in contravention of article 4(1)(c) of the Misuse of Drugs Regulations 1988 made under s. 5 of the Misuse of Drugs Act 1977 and contrary to s. 21(2) of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan on a date unknown prior to 2 May 1991 (within the State) and on divers dates between 2 May 1991 and 24 July 1991 (outside the State) conspired together to import into the State the controlled drug cannabis resin.
The ground on which Keane J held that the introduction of these two counts was ultra vires the Director of Public Prosecutions was that it rendered nugatory the order of the district judge discharging the applicant on two of the charges with which he had been charged on the preliminary examination before the district judge. The charges in question had been set out as follows in the statement of charges in the District Court:
2. That you the said accused did on 23 July 1991 at the Pier, Courtmacsherry, County Cork, in the District Court area of Clonakilty, District No. 18, unlawfully import into the Republic of Ireland a controlled drug, to wit, cannabis resin, in contravention of regulation 4(1)(c) of the Misuse of Drugs Regulations 1979 contrary to s. 21(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
3. You, Christopher O’Connell and John Ryan, on a date unknown prior to 2 May 1991, within the State, and on divers dates between 2 May 1991 and 24 July 1991, outside the jurisdiction of the State, conspired together to commit a crime, namely, to import into the State the drug cannabis resin, in contravention of regulation 4(1)(c) of the Misuse of Drugs Regulations 1979, s. 21(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977, contrary to common law.
At the date on which these offences were alleged to have been committed, the Misuse of Drugs Regulations 1979 had been repealed and had been replaced by the Misuse of Drugs Regulations 1988. Since the relevant regulations had been repealed, Mr White SC, acting on behalf of the applicant, submitted to the district judge that the applicant had not been charged with any offences known to the law. The district judge then considered amending the charges but in the face of Mr White’s objections that he had no jurisdiction to do this, decided against this course and discharged the applicant on both of these charges.
Keane J held that the case was indistinguishable from Costello v. Director of Public Prosecutions [1984] IR 346 and on that ground held that it was ultra vires the Director of Public Prosecutions to introduce the two additional counts in the indictment. He held that the introduction of the two counts rendered nugatory the decision of the district judge.
I am unable to take the same view. It seems to me that Costello v. Director of Public Prosecutions is distinguishable. In that case the plaintiff was charged before the District Court with two indictable offences relating to large sums of money. At the conclusion of the preliminary examination of the offences the district judge ordered the plaintiff to be discharged as to the offences and he was accordingly discharged. Subsequently the Director of Public Prosecutions, relying on the powers given to him by s. 62(1) of the Courts of Justice Act 1936, purported to direct the plaintiff to stand trial on the same charges in respect of which he had been discharged by the district judge. It was held that the decision of the district judge was a judicial determination and that the intended effect of the direction of the Director of Public Prosecutions under s. 62 of the Act of 1936 was to render that determination nugatory and without force and to frustrate the order of the District Court. It was held accordingly that s. 62 of the Courts of Justice Act 1936 was invalid having regard to the provisions of the Constitution.
In my opinion there is a clear distinction between the present case and the Costello case. In the Costello case there was no doubt as to the validity of the charges which were the subject of the preliminary examination. So, in discharging the accused, the district judge was deciding that the evidence was insufficient for him to make an order sending forward the accused for trial. There was a clear decision on the merits to this effect. Accordingly, when the Director of Public Prosecutions directed that the accused be sent forward for trial on the same two charges, he was overruling a decision on the merits made by the district judge.
The position in the present case is very different. It was submitted by Mr White on behalf of the applicant that he could not be returned for trial on charges 2 and 3 because, by reason of the 1979 Regulations having been revoked, the charges did not charge any offences which were known to the law. The district judge, taking the view that he had no power to amend the charges, acceded to this submission. It was accordingly on this basis that the applicant was discharged, which accordingly meant that he had been discharged because the charges against him did not in law constitute offences. So the discharge was on the basis that the charges were invalid. In the Costello case, on the other hand, the charges against the accused had been perfectly valid charges so the only conclusion that could be drawn from the accused being discharged was that the district judge had come to the conclusion that there was insufficient evidence to send him forward for trial. No such inference could be drawn on the facts of the present case.
In submitting that the Director of Public Prosecutions had no right to include counts 3 and 4 in the indictment, Mr White relied on the argument that these counts were in substance the same as charges 2 and 3 in the District Court. He says that the facts on which the State proposes to rely to prove the two counts are precisely the same facts as those on which they were relying to prove the charges. This is undoubtedly so but in my opinion it does not advance Mr White’s argument. It is impossible to compare charges which are a nullity, which in Mr White’s own words charged offences not known to the law, with counts which charge valid offences.
I am satisfied, accordingly, that the Director of Public Prosecutions was entitled to add in the two new counts into the indictment and I would allow the appeal of the Director of Public Prosecutions against the decision of the High Court declaring that the introduction of the two new counts was ultra vires.
As regards the appeal by the applicant against the refusal of Keane J to exclude count 5 from the indictment, Mr White’s submission in regard to this count was also that it rendered nugatory the decision of the district judge in discharging the applicant on charges 2 and 3. What I have held in regard to counts 3 and 4 applies a fortiori in regard to this count since even if charges 2 and 3 had been valid charges the discharge of the applicant in regard to those charges would not have prevented this count being included since, as held by Keane J, it is a wholly different offence from that contained in those charges, and so I am satisfied that the applicant’s appeal against Keane J’s refusal to exclude this count must be dismissed.
DENHAM J
(Finlay CJ concurring): This is an appeal by both the applicant and the first named respondent against the decision of Keane J on 30 July 1993.
On 11 January 1993 Geoghegan J granted leave to the applicant to seek judicial review by way of certiorari to quash all or part of Indictment Bill No. 663/92 in a prosecution entitled Director of Public Prosecutions v. O’Connell pending in the Circuit Court before the second named respondent.
A preliminary examination pursuant to Part II of the Criminal Procedure Act 1967 had been held in respect of the three charges contained in the statement of charges. These three charges were:
(1) That you, the said defendant, on 23 July 1991 at the Pier, Courtmacsherry, County Cork, in the District Court area of Clonakilty, District Number 18, had unlawfully in your possession a controlled drug, to wit, cannabis resin, contrary to s. 3 and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
(2) That you, the said accused, did on 23 July 1991 at the Pier, Courtmacsherry, County Cork, in the District Court area of Clonakilty, District Number 18, unlawfully import into the Republic of Ireland a controlled drug, to wit, cannabis resin, in contravention of regulation 4(1)(c) of the Misuse of Drugs Regulations 1979, contrary to s. 21(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.
(3) You, Christopher O’Connell and John Ryan, on a date unknown prior to 2 May 1991 within the State and on divers dates between 2 May 1991 and 24 July 1991 outside the jurisdiction of the State, conspired together to commit a crime, namely, to import into the State the drug cannabis resin, in contravention of regulation 4(1)(c) of the Misuse of Drugs Regulations 1979, s 21(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977, contrary to common law.
On 20 July 1992 the applicant was sent forward for trial by the said district judge in respect of the offence alleged at number one in the statement of charges and the applicant was discharged on charges number two and three.
The applicant applied pursuant to s. 31 of the Courts Act 1981 to have his trial transferred to the Circuit Court sitting in Dublin. On 18 December the matter was listed for arraignment at the Circuit Court, Dublin when the indictment comprised of five counts. These were:
Count No. 1 Statement of Offence
Count No. 1 Possession of a controlled drug, contrary to s. 3(1) of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan at the Pier, Courtmacsherry in the County of Cork, on 23 July 1991, had unlawfully in their possession the controlled drug cannabis resin.
Count No. 2 Statement of Offence
Count No. 2 Possession of a controlled drug for the purpose of supplying it to another, contrary to s. 15(1) of the Misuse of Drugs Act 1977, in contravention of article 4(1)(b) of the Misuse of Drugs Regulations 1988 as made under s. 5 of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan at the Pier, Courtmacsherry in the County of Cork, on 23 July 1991, had in their possession the controlled drug cannabis resin for the purpose of unlawfully supplying it to another.
Count No. 3 Statement of Offence
Count No. 3 Importation of controlled drug contrary to s. 21(2) of the Misuse of Drugs Act 1977, in contravention of article 4(1)(c) of the Misuse of Drugs Regulations 1988, made under s. 5 of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan on 23 July 1991, at the Pier, Courtmacsherry, in the County of Cork, unlawfully imported into the State the controlled drug cannabis resin.
Count No. 4 Statement of Offence
Count No. 4 Conspiracy to import into the State the controlled drug cannabis resin in contravention of article 4(1)(c) of the Misuse of Drugs Regulations 1988 made under s. 5 of the Misuse of Drugs Act 1977, and contrary to s. 21(2) of the Misuse of Drugs Act 1977.
Particulars of Offence
Christopher O’Connell and John Ryan on a date unknown prior to 2 May 1991 (within the State) and on divers dates between 2 May 1991 and 24 July 1991 (outside the State) conspired together to import into the State the controlled drug cannabis resin.
Count No. 5 Statement of Offence
Count No. 5 Importation of a controlled drug within the meaning of the Misuse of Drugs Regulations 1988 for the purpose of selling it or otherwise supplying it to another, contrary to s. 186 of the Customs Consolidation Act 1876, as amended by s. 2 of the Customs Act 1956, and as provided for by s. 7(1)(a)(ii) of the Misuse of Drugs Act 1984.
Particulars of Offence
Christopher O’Connell and John Ryan on 23 July 1991, at the Pier, Courtmacsherry in the County of Cork, imported into the State cannabis resin, a controlled drug, within the meaning of the Misuse of Drugs Regulations 1988, for the purpose of selling it or otherwise supplying it to another.
The relevant grounds upon which Geoghegan J granted leave to apply for judicial review were that:
(i) The inclusion of counts 3, 4 and 5 in the indictment in an apparent purported exercise by the first named respondent of his power pursuant to s. 18 of the Criminal Procedure Act 1967, or otherwise, was ultra vires the powers of the first named respondent, were not in due course of law and unlawful, as the applicant had been discharged on preliminary examination in respect of the offences alleged in the said counts, in particular counts 3 and 4.
(ii) The trial of the applicant before the second named respondent on the said indictment would be unfair to the applicant, a denial of his right to have a preliminary examination conducted in the District Court in relation to the said offences as provided for by the Criminal Procedure Act 1967 and furthermore would be a breach of his rights under Article 38 of Bunreacht Na hÉireann.
The Director of Public Prosecutions filed a statement of grounds of opposition opposing the application for judicial review and an affidavit of Malachy F. Boohig which set out in detail the facts of the preliminary hearing before Judge Brendan Wallace, which facts were not contested. He deposed:
4. The matter came before Judge Brendan Wallace at Bandon District Court in or about the months of May or June 1992, for submissions to be made. On that occasion the applicant was represented by Mr Barry White SC and Luigi Rea, counsel, instructed by Timothy McEniry, solicitor. Counsel for the applicant pointed out to the court that charges numbered 2 and 3 in the book of evidence were stated to have been contrary to the 1979 Regulations which counsel pointed out had been revoked in 1988, and it was submitted that in consequence of same that the book of evidence did not disclose any offence as set out in charges 2 and 3 in relation to those two charges. It was further submitted by counsel for the applicant that, in relation to the conspiracy charge, this was a common law offence and could not be laid in the State for an offence which had been committed outside the State and counsel maintained that if there was such an offence that it was an extra-territorial offence. He submitted, by reference to the book of evidence, that the prosecution was claiming that the first part of the charge was made prior to 2 May 1991, and that there was not a scintilla of evidence to support the charge. The commencement date of the evidence as set out in the book of evidence was a visit to a boatyard in the South of England on 2 May 1991, and he submitted that there was no evidence of any conspiracy on any date between 2 May 1991 and 24 July 1991.
5. I requested an adjournment to consider the points raised in relation to the 1979 Regulations and this was granted by Judge Wallace to 20 July 1992.
6. Having received instructions from the director prior to the adjourned date, I attended in court on 20 July 1992, when I asked Judge Wallace to amend the charges as set out in charges numbered 2 and 3 in the book of evidence. In circumstances where I conceded that the reference to the repealed 1979 Regulations was incorrect, I sought to have the charges in question amended by including a reference to the 1988 Regulations rather than the then repealed 1979 Regulations. I pointed out that the defect was not noticed until it was raised in court on the previous occasion and that the ‘book of evidence’ with an amended statement of charge could be signed, served and lodged within minutes of the amendment to the charges in question being granted. I pointed out to the court that the incorrect references were obviously a drafting error and I cited the case of State (Duggan) v. Evans 112 ILTR 61 and r. 88(2) of the Rules of the District Court in support of my application for an amendment of the two charges in question.
7. In reply to my submission Mr Barry White, senior counsel for the applicant, submitted that the court had no power to amend the charges and that there were specific statutory requirements laid down by ss. 5, 6 and 7 and that the District Court Rules pre-dated the 1976 Act and that the power of amendment therein referred to the amendment of a summons and not a charge sheet.
8. Judge Wallace then referred senior counsel to the provisions of s. 8(2) of the said Act of 1967 and to the power of the court to send the applicant forward for trial for some indictable offence other than that charged and further to s. 18 of the said Act of 1967 and to the power to include other counts in the indictment. To this Mr White submitted that this would be making a bad charge good and Judge Wallace then pointed out to Mr White that he could not have it both ways and that he (Mr White) was blowing ‘hot and cold’ in that on the one hand he was maintaining the charges in question were void while on the other hand he maintained that the proper charges could not be preferred. He re-iterated that Mr White could not have it both ways.
9. Judge Wallace then proceeded to return the applicant for trial on charge No. 1 and discharged the applicant on charges numbered 2 and 3 on the basis that the charges were bad and that the wording of r. 88(2) of the Rules of the District Court had to be applied strictly. He stated that the reference to preliminary examination in that sub-rule related only to the examination of witnesses during a preliminary examination. He further stated that he could not state a case on the point, but that he would leave it to the Director of Public Prosecutions to apply s. 18 of the Criminal Procedure Act 1967, if he so required.
10. Judge Wallace then gave the applicant and his co-accused a warning in relation to the furnishing of any notice of alibi and he returned both the accused to the sitting of the Cork Circuit Criminal Court on 10 November 1992, on charge no. 1 only.
11. The solicitors for both accused then advised me subsequent to the hearing that they would be applying for a transfer to the Circuit Court at Dublin when the matter was listed in Cork on 10 November 1992.
12. Prior to striking out the charges, Judge Wallace indicated to the applicant’s legal representative that it was open to the director to prefer additional counts to the indictment if he wished and it was for this reason that he was principally sending the accused forward on one charge only. Mr Barry White SC, for the applicant, objected, stating that his clients had been discharged with the charges of importation and conspiracy and that Judge Wallace was discharging both of the accused on those charges. He submitted that it would not be open to the prosecution to prefer, or add, to the indictment other charges of conspiracy and importation under the 1988 Regulations. To these submissions Judge Wallace replied ‘You cannot have your cake and eat it’. He stated that on the one hand Mr White was looking for his clients to be discharged in relation to counts 2 and 3, but on the other hand he was objecting to additional counts being added to the indictment. He stated that he did not see any basis to Mr White’s argument and he stated that he would expect that the State would in due course prefer additional counts to the indictment. He then ordered that the applicant and his co-accused be discharged in relation to counts numbered 2 and 3 in the book of evidence and proceeded to make an order returning the applicant for trial on charge number 1.
The application for judicial review was heard by Keane J who in a reserved judgment of 30 July 1993 granted a declaration that the addition by the DPP of counts numbered 3 and 4 to the indictment was ultra vires the powers of the DPP under s. 18 of the 1967 Act.
Having reviewed the common law on autrefois acquit and deciding that it did not apply he stated at p. 8 of his judgment:
If this case fell to be determined by reference to the principles of the common law alone, Mr Gaffney SC’s submissions would probably be unanswerable. But the provisions of the Constitution and in particular the separation of powers and the independence of the judiciary which it enjoins now come into the reckoning. In Costello v. Director of Public Prosecutions the Supreme Court decided that s. 62 of the Courts of Justice Act 1936 which empowered the DPP to send an accused person forward for trial on charges in respect of which he had already been discharged was inconsistent with the Constitution. O’Higgins CJ giving the judgment of the court said:
The court is satisfied that, in conducting the preliminary examination and in determining these questions, the justice was exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution: see Articles 6 and 34 of the Constitution and State (C.) v. Minister for Justice [1967] IR 106. When, in the exercise of such judicial power, there is a determination of these justiciable issues, that determination cannot be set aside or reversed by any other authority. Such action would constitute an invasion of the judicial domain and an attempt to exercise the judicial power of government otherwise than by the organs of State established for this purpose by the Constitution.
The court went on to hold that a purported direction by the DPP under s. 62 where an accused person had been discharged was just such an invasion. I can see no distinction between that situation and that which arises in the present case. The district judge has made a determination of a justiciable issue and the DPP cannot render that determination nugatory by adopting a course of action which will mean the applicant standing trial on a charge the ingredients of which are precisely the same and the facts and documents relating to which must be the same as those which were before the district judge when he discharged the applicant.
… In the present case, the addition of the new counts was in reality an attempt to render nugatory the decision of the district judge to discharge the applicant in respect of those charges and the fact that the district judge made it clear that he was discharging the applicant in the expectation that the appropriately framed counts would be added cannot affect that conclusion. I am satisfied that the DPP’s action in adding the counts at (3) and (4) above was ultra vires his powers under s. 18 of the 1967 Act.
The learned trial judge then, in lieu of an order of prohibition or certiorari, granted a declaration in favour of the applicant.
Law
The Criminal Procedure Act 1967, Part II sets out the procedure for preliminary examination of indictable offences in the District Court.
S. 5(1) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the justice shall conduct a preliminary examination of the charge in accordance with the provisions of this Part.
(2) References in any enactment to the preliminary investigation of an indictable offence shall be construed as references to the procedure set out in this Part.
S. 6 tabulates the documents to be served on the accused. The statutory decisions which may be taken by the district judge are stated in s. 8 as:
(1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.
(2) If the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence, proceed in accordance with s. 7(4), which shall have effect with the omission of the words ‘if he is sent forward for trial’ in paragraph (a), and, unless s. 13 applies, send him forward for trial.
(3) Subs. (1) and (2) are subject to the provisions of s. 2 of the Criminal Justice Act 1951, which relates to minor offences.
(4) If the justice is of opinion that a summary offence only is disclosed, and the Attorney General consents, he shall call the accused to be charged with the summary offence and deal with the case accordingly.
(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.
(6) An order of a justice sending an accused person forward for trial shall be in writing, signed by the justice.
S. 18 provides:
Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to countscharging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under s. 7) and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment.
Issues
Count No. 1 is the charge on which the applicant was returned by Judge Wallace, and there is no issue on this count in this case.
The court was told that count No. 2 was inadvertently placed in the indictment and that it will be withdrawn when the matter comes before the trial judge. Consequently it is not in issue in this case.
Count No. 3 and count No. 4 are in issue in this appeal in that the Director of Public Prosecutions is appealing the learned trial judge’s decision to grant to the applicant a declaration that the addition by the Director of Public Prosecutions of counts No. 3 and 4 to the indictment is ultra vires the powers of the Director of Public Prosecutions under s. 18 of the 1967 Act.
Count No. 5 is in issue in that the applicant is appealing the learned trial judge’s decision to retain this count upon the indictment.
The first issue for determination is whether the addition of counts No. 3 and 4 to the indictment was ultra vires the powers of the DPP under s. 18 of the 1967 Act.
The district judge in conducting the preliminary examination pursuant to s. 5 (1) of the Act of 1967, and in determining whether an accused should be sent forward for trial on indictment or should be discharged, is exercising the judicial power of the State as conferred on the District Court by law in accordance with the Constitution of Ireland. See Costello v. Director of Public Prosecutions [1984] IR 436; [1984] ILRM 413.
S. 8 and s. 18 were reviewed again by the Supreme Court in O’Shea v. Director of Public Prosecutions [1988] IR 655; [1989] ILRM 309. At issue in that case was the power of the DPP under s. 18 of the Act of 1967 to frame an indictment containing counts charging two other offences in substitution for the count charging the offence for which the applicant had been sent forward for trial. The substituted counts were founded on the documents and exhibits considered by the district judge at the preliminary examination. The Supreme Court disallowed an appeal from a refusal of Lardner J to grant a declaration order, and Costello v. Director of Public Prosecutions was distinguished. Finlay CJ stated at p. 669:
The making of an order of discharge under s. 8(5) as was made in Costello v. Director of Public Prosecutions [1984] IR 436 was not an acquittal of the accused as would be a verdict of not guilty on an indictment, but it was a determination that he should not on the evidence tendered be sent forward for trial. Consequently, an order under s. 62 of the Act of 1936 was in direct conflict with the order of discharge which had been made under s. 8(5).
The court rejects the contention that the fact that the district justice in the instant case did not exercise the power vested in him by s. 8(2) is to be interpreted as a finding by him that the offence in respect of which he did send the appellant forward for trial was the only offence supported by the evidence. Consequently, the substitution of counts in the indictment pursuant to s. 18 is not in any conflict with the order made by the district justice in this case….
Having regard to the provisions of the Prosecution of Offences Act 1974, the Director of Public Prosecutions in commencing and conducting criminal prosecutions discharges a statutory function in the name of the People permitted by Article 30.3 of the Constitution. It is and must be an inherent part of the function of a prosecutor of a criminal offence triable on indictment to frame the precise form of the indictment and thereby to ensure that the true issue between the People and the accused is properly and fairly put before the court.
To do so is an administrative or executive function and certainly is not a judicial function. By substituting or adding a count the Director of Public Prosecutions is not purporting to determine any issue between the People and the accused, but is merely providing the vehicle for the determination of such issues by the court and the jury.
Decision
On two grounds I am satisfied that the addition of counts No. 3 and 4 to the indictment by the DPP was not invalid.
(a) On the rationale of the decision in O’Shea v. Director of Public Prosecutions the DPP was entitled to add the two counts; Costello v. Director of Public Prosecutions is distinguishable.
In this case there is no direct conflict between the decision of the district judge and that of the Director of Public Prosecutions. The fact that the district judge did not exercise the power vested in him under s. 8(2) of the Act of 1967, does not mean that he found that the offence on which he did send the appellant forward for trial was the only offence supported by the evidence. Pursuant to s. 18 of the Act of 1967 it was open to the DPP to add counts based on the documents and exhibits considered by the district judge at the preliminary examination. This he did.
Counts No. 3 and 4 are not technically the same as charges No. 2 and 3. Thus, the addition of the two counts was not in conflict with the order of the district judge in this case. The executive or administrative decision by the DPP under s. 18 to add the two counts was valid, as there had been no discharge on those counts in the District Court. By adding these two counts the DPP is not determining any issue but rather is placing these issues before the courts for determination.
(b) The second ground upon which I am satisfied that the addition of the two counts by the DPP is valid is what may be called the ‘technical’ submission.
In the District Court counsel for the appellant raised a technical argument, on a technical point, as he is entitled to do, that the reference in charges No. 2 and 3 to the repealed 1979 Regulations were incorrect. There is no doubt that the references were inaccurate.
The state solicitor requested an amendment of the charges to include reference to the extant regulations. The district judge referred to s. 8 (2) of the Act of 1967. It is not necessary to decide on the validity of the district judge’s decision, which was not in issue in this case, it is merely appropriate to note that the district judge complied with the argument of counsel for the applicant and discharged the applicant on charges No. 2 and 3. It is clear that the district judge held that they were not valid charges because of their reference to the repealed 1979 Regulations. If one accepts that decision, then counts No. 3 and 4 of the indictment are entirely different in that they refer to the correct regulations. They are valid counts. They are entirely new counts based on the book of evidence. Counts No. 3 and 4 of the indictment are not the same as charges No. 2 and 3, as the charges were held invalid on a technicality (the reference to the repealed regulations) and it is manifestly clear that the counts on the indictment are technically valid.
There is no merit in this submission, it is one of technicalities only, and the applicant having raised the point in the District Court it is a valid point upon which the DPP can rely on appeal.
This is not a technical point taken in opposition to a district judge’s determination. The district judge applied the law as submitted by the applicant to be correct. However, he stated ‘You cannot have your cake and eat it’. He indicated clearly that he would leave it to the DPP to apply s. 18 of the Act of 1967 if he so required. It is quite clear from the facts of this case that the effect of the inclusion of the two further counts in the indictment by the DPP pursuant to s. 18 of the Act of 1967 does not render the decision of the district judge nugatory.
Consequently, I would allow the appeal of the Director of Public Prosecutions.
In regard the applicant’s appeal on count No. 5, applying the principles set out above, I am satisfied it should be dismissed. Keane J was correct in holding that the applicant had never been discharged by the district judge in respect of this offence and that there is nothing to prevent the DPP including it in the indictment.
King v Neilan
[1996] 1 ILRM 17 Hamilton CJ
This is an appeal brought by the Director of Public Prosecutions (hereinafter referred to as the appellant) against the judgment and order of the High Court (Kinlen J) of 17 May 1994.
By the said order the appellant was restrained from:
further prosecuting the applicant/respondent in relation to Coolock Garda Station Charge Sheet Nos. 48, 49, 50 and 51 of 1994 in proceedings entitled — The Director of Public Prosecutions at the suit of D/Gda Cyril Kelleher v. Michael King (the applicant/respondent herein).
The court has allowed the appeal and now states its reasons for so doing.
The facts relevant to the appeal herein are as follows:
(1) On 28 December 1993 the applicant/respondent in this appeal appeared before the District Court charged with the offence set forth in Coolock Charge Sheet 862/93 which charge alleged that on 27 December 1993 the said applicant did enter as a trespasser a building known as Priorswood House, Clonshaugh Avenue, Priorswood, Dublin 17 in the Dublin Metropolitan District with intent to inflict grievous bodily harm on a person therein and, at the time had with him a weapon of offence.
(2) On that date, the applicant was remanded in custody to Mountjoy Prison and to the District Court sitting at Court No. 4 Chancery Street in the City of Dublin on 4 January 1994.
(3) Having regard to the nature of the charge the District Court judge refused to accept jurisdiction and further remanded the applicant in custody for one week.
(4) On 18 January 1994 the applicant/respondent waived his right to preliminary examination on the charge then before the court and elected to be sent forward to the Circuit Criminal Court on a plea of not guilty. At the time of the exercise by him of such waiver and election, he was aware of the fact that further charges were being considered and would, in all probability be brought.
(5) On that date, namely 18 January 1994, the matter was adjourned by the District Court judge on the application of the representative of the appellant allegedly on the ground that the prosecutor wished to consider whether or not he would require the attendance of witnesses and to examine by way of sworn deposition, pursuant to the provisions of s. 7(2) of the Criminal Procedure Act 1967 (hereinafter referred to as the Act).
(6) On 25 January when the matter came for hearing before the court, the representative of the appellant indicated to the judge that further charges were to be preferred against the applicant and the matter was adjourned until 2.00 p.m. on that afternoon.
(7) When the matter came before the court in the afternoon, four additional charges were preferred against the applicant/respondent.
(8) These additional charges are those set forth in Coolock Charge Sheets Nos. 48, 49, 50 and 51.
(9) All these charges relate to the incident alleged to have occurred at Priorswood House aforesaid on 27 December 1993.
(10) When these charges were preferred before the District Court the applicant/respondent did not waive preliminary examination in relation thereto but submitted that having waived preliminary examination in respect of the original charge, he was entitled to be returned for trial with his plea of not guilty; that the matter had been adjourned at the request of the Director of Public Prosecutions for the purpose of consideration as to whether the appellant would require the evidence of witnesses to be taken on deposition and that the District Court should not permit the new additional charges to be brought.
(11) In view of the fact that further charges had been brought the learned district judge extended time for the service of a book of evidence on the applicant and the matter was adjourned until 31 January.
(12) On 31 January 1994, the matter was further adjourned until 7 February 1994.
(13) On 3 February 1994, the applicant/respondent was given leave by the High Court to apply for orders of prohibition, injunction and certiorari by way of an application for judicial review in respect of the charges set out in Charge Sheets 48, 49, 50 and 51 of Coolock Garda Station.
(14) On 7 February 1994, the District Court judge sent the applicant forward for trial in relation to the charge set forth on Coolock Charge Sheet 862 of 1993.
In view of the order made by the High Court on 3 February 1994 no order was made in respect of the four additional charges which had been preferred on 25 January 1994.
The grounds upon which the applicant/respondent sought and was granted leave to seek relief by way of judicial review are set forth in the statement required to ground the application for judicial review and may be summarised as follows:
1. In permitting the appellant to bring the four additional charges against the applicant/respondent the district judge acted without or in excess of jurisdiction and/or contrary to the principles of natural and constitutional justice by reason of the fact that:
(i) as the applicant/respondent had waived his right to a preliminary hearing and elected to be sent forward for trial with a plea of not guilty in respect of the charge set forth in Coolock Charge Sheet 862/93 in accordance with the provisions of s. 12(1) of the Act, he should have been sent forward for trial in accordance with the provisions of s. 12(2) of the Act;
(ii) the appellant did on 18 January 1994 apply to the District Court for and was granted an adjournment for the purpose of considering whether he required the attendance of any witness to be examined by way of sworn deposition in respect of this charge;
(iii) the appellant utilised the provisions of s. 7(2) of the Act for a purpose not authorised thereby viz. to seek an adjournment, not for the purpose stated but for the purpose of considering further charges against the applicant/respondent;
(iv) the appellant acted unlawfully in preferring the four additional charges against the applicant/respondent, when he was entitled to be sent forward for trial on the original charge, in respect of which he had exercised his right to waiver and election.
2. The trial of the applicant/respondent on the four additional charges would be oppressive and a violation of the applicant/respondent’s right to fairness of procedures and trial in accordance with law.
As appears from the judgment of the learned trial judge, the case made on behalf of the applicant/respondent was that:
1. The applicant/respondent, having waived his right to a preliminary hearing and elected to go forward for trial on a plea of not guilty in respect of the charge set forth in Coolock Garda Station Charge Sheet No. 86/93, should have been sent forward for trial on that charge.
2. If he had been sent forward for trial on that charge, the provisions of s. 18 of the Act would not apply and consequently no substituted or additional counts could be entered on the indictment (O’Shea v. Director of Public Prosecutions [1988] IR 655; [1989] ILRM 309).
3. The District Court judge, having adjourned the matter on 18 January 1994 for the purpose of enabling the representative of the appellant to consider whether or not he would require the attendance of witnesses and to examine by way of sworn deposition, had no jurisdiction to permit the four additional charges to be made against the applicant/respondent.
4. The appellant’s motive in applying for an adjournment on 18 January 1994 was for the purpose of considering whether additional charges should be brought and not for the stated reason of considering whether depositions would be required.
5. This application was ‘a colourable device’.
6. The District Court should have refused to permit the bringing of the additional charges and had no jurisdiction to consider such charges.
The learned trial judge stated that:
It seems to me that Mr Toal is correct in his argument and that the application for the adjournment was in fact a colourable device. The State was aware that he had waived the right to a preliminary examination. It is clear from the law quoted that the Supreme Court stated that s. 18 does not apply in this case. While undoubtedly the D/Gda stated there would be additional charges, it seems to me that once the man had elected to go forward on his plea, there is no provision in the Act giving place in these particular proceedings to add other charges on the basis of what transpires to be a deceitful application for an adjournment under the guise of ascertaining whether depositions would be required when the real reason was to prepare further charges. It seems to me that the court should not be called to aid a defect in the legislation. The court doth therefore order that the Director of Public Prosecutions be restrained from further prosecuting the applicant in respect of Coolock Charge Sheets Nos. 48, 49, 50 and 51 of 1994.
As stated by the then Chief Justice in O’Shea v. Director of Public Prosecutions [1988] IR 655; [1989] ILRM 309 at pp. 667-668/319-320:
The right of a person charged with an indictable offence to a preliminary examination before a district justice is not a constitutional right but rather is a statutory right. This has not been contested in this case by counsel for the appellant and it is in the view of the court, undoubtedly the true legal position. The right to a preliminary examination relevant to these proceedings is contained in Part II of the Act of 1967 which provides, between s. 5 and s. 20 inclusive, a complete and comprehensive procedure. It is incorrect to seek to identify individual parts of machinery thus laid down as being rights which can be looked at separately from and as immune from effect by other provisions of this part of the statute.
Later in the course of his judgment he stated that:
Furthermore, any accused who has chosen to waive a preliminary examination and to be sent forward for trial with a plea of not guilty makes use of a procedure which having regard to the terms of s. 12 of the Act of 1967 appears clearly to envisage that the district justice shall not consider the documents and exhibits for the purpose of making an order sending the accused forward for trial but rather will send him forward for trial on his waiver and accordingly, the provisions of s. 18 would not apply in such a case. With regard to the accused who at any stage of a preliminary hearing has indicated to the court a wish to plead guilty, again, the provisions of s. 18 cannot be operated in his case for there is no order sending him forward for trial but an order only under s. 13 sending him forward for sentence.
The applicant/respondent had elected to go forward on his plea of not guilty and waived a preliminary hearing.
In these circumstances, there is no doubt but that the provisions of s. 18 of the Act did not apply.
S. 18 of the Act provides that:
Where a person has been sent forward for trial under this part, the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under s. 7) and the exhibits considered by the justice, at the preliminary examination, being counts which may lawfully be joined in the same indictment.
The effect of this section is that if, as subsequently happened, the applicant/ respondent was sent forward for trial on the charge, in respect of which he was originally charged and in respect of which he had waived a preliminary hearing, additional counts could not be entered on any indictment against him.
There is however nothing in the Act to prevent the appellant bringing additional charges against him even if they arise from the same circumstances as the original charge provided that the requirements of the Act are complied with.
These requirements are set forth in ss. 5 to 8 inclusive of the Act and require:
1. A preliminary examination of the charges by the District Court (s. 5).
2. The service of the necessary documents on the accused (s. 6).
3. A consideration by the district judge of the documents and exhibits, any deposition or statement and any submissions made by or on behalf of the prosecutor or the accused (s. 7).
4. A sending forward for trial if the district judge is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged (s. 8).
There is nothing in this case to suggest that these procedures would not have been followed in respect of the four additional charges when the applicant/respondent did not waive such preliminary examination.
Such a preliminary examination would have been held by the district judge were it not for the fact that on 3 February 1994, the applicant/respondent was granted leave to seek relief by way of judicial review and the order granting such leave provided that the proceedings in respect of such additional charges should be stayed until the determination of the application for judicial review.
The application for judicial review was heard by Kinlen J and on 17 May 1994 he ordered that the appellant herein be restrained from
further prosecuting the applicant in relation to Coolock Garda Station Charge Sheets Nos. 48, 49, 50 and 51 in proceedings entitled ‘The Director of Public Prosecutions at the suit of D/Gda Cyril Kelleher v. Michael King’ (the applicant/respondent herein).
The effect of this order was that the charges set out in the said charge sheets could not be proceeded with.
The appellant has appealed against the making of the said order.
In the course of his judgment the learned trial judge set forth in detail the facts in this case and accepted the fact that ‘the D/Gda stated there would be additional charges’.
He then went on to say:
It seems to me that once the man had elected to go forward on his plea, there is no provision in the Act giving place in these particular proceedings to add other charges on the basis of what transpires to be a deceitful application for an adjournment under the guise of ascertaining whether depositions would be required when the real reason was to prepare additional charges. It seems to me that the court should not be called to aid a defect in the legislation.
It is clear from this passage from his judgment that the learned High Court judge considered that if the applicant/respondent had been sent forward for trial on the original charge viz. that set forth in Coolock Garda Station Charge Sheet No. 862/93, there was no provision in the Act whereby additional charges could be brought against the applicant/respondent.
In so considering, the learned trial judge was incorrect.
While it is clear from the decision of this Court in the case of O’Shea v. Director of Public Prosecutions that the provisions of s. 18 of the Act did not apply in circumstances where an accused had waived the preliminary examination provided for in the Act and elected to go forward on a plea of not guilty and that consequently no additional counts could be placed on an indictment against him, this only applies where an accused had been sent forward for trial in accordance with the provisions of s. 12 of the Act.
When an accused is sent forward for trial in accordance with the provisions of this section, no additional counts can be placed on the indictment against him. But that does not preclude the Director of Public Prosecutions from bringing other charges against him provided that the procedures set forth in the Act are followed.
These are the procedures set forth in Part II of the Act and are previously referred to in the course of this judgment.
In respect of the additional charges in this case, the applicant/respondent did not waive his right to a preliminary hearing and before he could be sent forward for trial in respect of these charges the said procedures would have had to be complied with.
Even if the accused had been sent forward for trial in respect of the charge set forth in Coolock Garda Station Charge Sheet No. 862/93 on 18 January 1994, there was nothing in the Act to prevent the Director of Public Prosecutions from bringing the additional charges before the District Court at any time thereafter and, if the district judge was of opinion that there was a sufficient case to put the accused on trial for these offences, to prevent the district judge from sending him forward for trial.
As stated by the then Chief Justice in O’Shea v. Director of Public Prosecutions at pp. 667/319-320 of his judgment:
The right of a person charged with an indictable offence to a preliminary examination before a district judge is not a constitutional right but rather is a statutory right.
In this case, the applicant/respondent was not deprived in any way of his right to a preliminary examination.
In respect of the charge in Coolock Garda Station Charge Sheet No. 862/93, he had waived such right and a preliminary hearing would have taken place in respect of the charges set forth in Coolock Garda Station charge sheets Nos. 48, 49, 50 and 51 were it not for the order of the High Court made on 3 February 1994.
As all of the charges arose from the same incident, it would have been desirable that the trials in respect thereof should be heard at the same time and a multiplicity of trials avoided and this is what the appellant sought to achieve. There was no attempt to take an unfair advantage of the accused by seeking the adjournment on 18 January 1994 or to deprive him of his rights under the Act or to violate his constitutional rights.
The accused was sent forward for trial on 7 February 1994 in respect of the charge in respect of which he had waived his right to a preliminary hearing and the court was informed that he had been convicted of the said offence and sentenced to five years’ imprisonment.
While the court has allowed the appeal in this case and the order restraining the appellant from prosecuting the applicant/respondent in relation to the additional charges is set aside, it is open to the appellant in all the circumstances of this case to reconsider his decision to prosecute these additional charges.
O’Shea v Director of Public Prosecutions
[1989] ILRM 309
Lardner J
This is an application by John O’Shea for a judicial review of an indictment preferred against him in the Cork Circuit Court in proceedings entitled The People (Attorney General) v John O’Shea. The applicant was on 26 June 1987 charged with receiving £172.50 cash contrary to s. 33 of the Larceny Act 1916. When the charge was read out to him the applicant elected for trial by a judge and jury in the Circuit Court. The matter was then adjourned from time to time pending the preparation and service of the book of evidence. When the case came before District Justice Clifford on 4 September 1987, the appropriate procedures under ss. 5, 6 and 7 of the Criminal Procedure Act 1967 having been observed, he made an order of preliminary examination pursuant to s. 8 of the Act that the applicant be sent forward for trial at the next sessions of Cork Circuit Criminal Court on the charge set out in the statement of charge which had been served on the applicant pursuant to s. 6. This charged him with receiving £172.50 cash contrary to s. 33 of the Larceny Act 1916. Subsequently in September the applicant’s solicitor obtained from the county registrar a copy of the indictment which had been lodged in the Circuit Court Office. This contained only two counts namely:
(1) Burglary contrary to Section 23(a) (1)(b) of the Larceny Act 1916 as inserted by Section 6 of the Criminal Law (Jurisdiction) Act 1976 and alleging that he had entered the Courthouse at Youghal as a trespasser and stolen a cheque for the sum of £11,000 the property of Eamon O Floinn and
(2) Receiving stolen property contrary to Section 33(1)(a) of the Larceny Act 1916, namely a cheque for the sum of £11,000 the property of Eamon O Floinn knowing it to have been stolen.
It was common case that these counts appeared in the indictment as a result of an exercise by the Director of Public Prosecutions of the power contained in s. 18 of the Criminal Procedure Act 1967. This section provides:
Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under section 7) and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment.
It is noteworthy that the power to substitute or add counts in the indictment is subject to express limitations. The new counts must be founded on the documents and exhibits considered by the District Justice at the preliminary examination and they must be such as may be lawfully combined in the same indictment. In the present case the two counts in the indictment were included in substitution for the offence for which the applicant had been sent forward for trial. Essentially the case made on behalf of the applicant is that the exercise of this power given by s. 18 constitutes an unlawful interference by an executive officer, namely, the Director of Public Prosecutions with a judicial order made in judicial proceedings and with the administration of justice and that s. 18 which purports to authorise this is repugnant to the Constitution. It is submitted that in making the order of preliminary examination under s. 8 the District Justice acting judicially (a) decided under s. 8(1) that there was a sufficient case to put the accused on trial for the offence with which he had been charged and (b) decided implicitly under s. 8(2) that there was no sufficient case to put the accused on trial for some indictable offence other than that charged. And it was said that the subsequent substitution of the two counts in the indictment charging two different offences from the charge contained in the District Justice’s order was a direct interference with the administration of justice and with an order of a judicial officer. In support of these submissions strong reliance was placed on the judgment of the Supreme Court in Costello v Director of Public Prosecutions [1984] IR 436 which I will consider in my judgment.
Apart from authority are these submissions well founded? The Constitution prescribes in Article 34 that
Justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution….
What is alleged in this case is an interference by an officer who is not a judge with the administration of justice. It may not be possible and I shall certainly not attempt to construct a definition of ‘administration of justice’. In a number of cases attempts have been made to describe characteristic features of an administration of justice of which I shall refer to three. In Lynham v Butler (No.2) [1933] IR 74 there is a well known statement by way of description rather than of precise formula by Kennedy CJ,
In the first place, the Judicial Power of the State is, like the Legislative Power and the Executive Power, one of the attributes of sovereignty, and a function of government…. It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the Judicial Power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect. In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens and the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied.
In The State (Shanahan) v The Attorney General [1964] IR 239, Davitt P had this to say in regard to the nature of the judicial power.
I have certainly no intention of rushing in where so many eminent jurists have feared to tread, and attempting a definition of judicial power; but it does seem to me that there can be gleaned from the authorities certain essential elements of that power. It would appear that they include 1, the right to decide as between parties disputed issues of law or fact, either of a civil or criminal nature or both; 2, the right by such decision to determine what are the legal rights of the parties as to the matters in dispute; 3, the right, by calling in aid the executive power of the State, to compel the attendance of the necessary parties and witnesses; 4, the right to give effect to and enforce such decision, again by calling in aid the executive power of the State. Any tribunal which has and exercises such rights and powers seems to me to be exercising the judicial power of the State.
In McDonald v Bord na gCon [1965] IR 217 Kenny J attempted to state the characteristic features of an administration of justice. These were:
(1) A dispute or controversy as to the existence of legal rights or a violation of the law;
(2) The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
(3) The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
(4) The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;
(5) The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.
These useful statements lead me to conclude that in regard to criminal cases the judicial power of the State is exercised and justice is administered whenever there is a determination of guilt or innocence of persons charged with an offence or a determination as to the punishment to be inflicted upon persons found guilty of offences charged against them — such determinations being of a final character, subject only to appeal.
The procedure for the prosecution of a criminal offence (other than an offence being tried summarily) is prescribed in Part II of the Criminal Procedure Act 1967. It requires firstly that a justice shall conduct a preliminary examination of the charge in the District Court. S. 6(1) provides that the prosecution shall cause the following documents to be served on the accused:
(a) a statement of the charges against him,
(b) a copy of any sworn information in writing upon which the proceedings were initiated,
(c) a list of the witnesses whom it is proposed to call at the trial,
(d) a statement of the evidence that is to be given by each of them, and
(e) a list of exhibits (if any).
S. 7(1) requires the justice to consider the documents and exhibits, any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the prosecutor or the accused.
And then s. 8 provides:
(1) If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.
(2) If the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence, proceed in accordance with section 7 (4), which shall have effect with the omission of the words ‘if he is sent forward for trial’ in paragraph (a), and, unless section 13 applies, send him forward for trial.
(5) If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.
In determining the matters in each of these subsections it is clear that the justice must act judicially. In subs. (5) he is clearly making a final determination in relation to the offence charged and in my view exercising the judicial power and is administering justice. Is it necessary to say the same about orders of the justice made under subs. (1) and (2)?
From the stage of the preliminary examination up to and including the trial, statements of evidence given by each of the witnesses — the book of evidence — constitute a continuing foundation and framework in the case within the ambit of which it must be tried and determined, subject to the provision in s. 11 for the calling of further witnesses not on the original list of witnesses and for the service of statements of their evidence and of a list of any further exhibits. It appears to me that the matter of which complaint in this case is made, namely the substitution of two new counts in the indictment in place of the charge upon which the applicant was committed for trial, is something which took place before and preliminary to the trial. It does however directly affect the issues which are to be tried in the sense that the issues are formulated by the counts in the indictment and the plea to them of the accused. In civil proceedings in the High Court the justiciable issues in respect of which the judicial power of a judge is exercised in a civil trial are determined by the pleadings. These pleadings are formulated by the parties and are capable of amendment in some circumstances by the parties without the necessity of obtaining the leave of the court. Of course in civil proceedings there is no stage of preliminary examination ending in a determination that there is a case to be tried and this is undoubtedly a distinguishing mark of criminal proceedings. In criminal proceedings tried on indictment it is undoubtedly true that by his order of preliminary examination a District Justice is required by s. 8(1) if of opinion that there is a sufficient case to put the accused on trial for the offence of which he has been charged to make an order sending him forward for trial on that charge. Subs. (2) provides for an alternative where the justice is of opinion that there is a sufficient case on the book of evidence to put the accused on trial for some indictable offence other than that charge; then the justice is obliged to cause him to be charged with that offence and proceed in accordance with s. 7(4). This latter section requires the justice to ask the accused if he has anything to say in answer to the charge, to caution him in the prescribed way and to have taken down and read over to the accused anything which he may say and for the justice to sign it. The section then provides for any confession or statement so made by the accused to be given in evidence without further proof at his trial. These provisions of s. 7(4) are not specifically in aid of the accused. Following upon a justice’s order sending forward an accused for trial either on the original charge under s. 8(1) and/or under s. 8(2) for some indictable offence other than that charged, the next step is the preparation of an indictment and the furnishing of a copy to the accused. Criminal offences in the Circuit Court are triable on indictment and it is to the indictment that the accused pleads at the beginning of the trial, and by the indictment and the plea to it, the issues to be determined at the trial are formulated and established. The indictment may however be amended before or during the trial. By s. 6 of the Criminal Justice (Administration) Act 1924
Where before trial or at any stage of a trial it appears to the court that the indictment is defective the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless the required amendments cannot in the opinion of the court be made without injustice and may make such order as to the payment of any costs incurred owing to the necessity for amendment as the court thinks fit.
It seems to me that this is a very important provision to bear in mind when considering the gravamen of the applicant’s complaints in the present case. It ensures that before trial and at any stage of a trial the efficacy and sufficiency of the indictment remain within the jurisdiction and control of the court.
It has not been contended that the framing of the indictment, whether by the addition or substitution of counts charging offences different from the offences contained in the justice’s order sending the accused forward for trial is itself a judicial act. The complaint is that the District Justice in sending the accused for trial on a specific charge or charges is determining by a judicial order the charges upon which the trial is to be had and that by adding or substituting different charges in the indictment the Director of Public Prosecutions, an officer of the executive, is in effect countermanding the justice’s order and so interfering in the administration of justice.
In my view this is not correct. Ss. 7 and 8 do not prescribe a rigid framework which cannot be departed from. They do provide a framework but other sections such as ss. 11 and 18 permit a certain degree of flexibility, leading up to the trial in relation to the book of evidence, the witnesses and the indictment. Plainly this is desirable in the interest of the administration of justice provided there is no want of fair procedures.
Under s. 8 the District Justice judicially determines that there is a sufficient case to put the accused on trial for the offence with which he has been charged or for some other more appropriate indictable offence other than that charged. I do not think that such an order should be regarded as involving a judicial decision that he should be put on trial for no other offence. There is always the possibility after the accused has been sent for trial that another or other charges arising from the existing book of evidence are more appropriate to be tried or the Director of Public Prosecutions may cause a list of further witnesses whom he proposes to call together with a statement of their evidence and a list of further exhibits to be served on the accused under s. 11 and that this may render a substitution or alteration of counts in the indictment appropriate.
I now turn to consider whether, as is submitted by the applicant, the issues which I have to decide, have already been the subject of a decision of the Supreme Court in Costello v Director of Public Prosecutions [1984] IR 436 which is binding on this Court. In that case the appellant — Donald Patrick Costello — having been charged with two indictable offences and a preliminary examination of those charges having been held, the District Justice being of opinion that there was insufficient evidence to put the appellant on trial for those offences, ordered pursuant to s. 8(5) of the Criminal Procedure Act 1967 that he be discharged. After he had been discharged the Director of Public Prosecutions in purported exercise of the powers conferred by s. 62 of the Courts of Justice Act 1936 directed that he be sent forward to the Circuit Court for trial on indictment on the same charges. The appellant claimed a declaration that the provisions of s. 62 were repugnant to the Consititution and was successful, the Supreme Court holding that the only effect of a direction under s. 62 was to render a judicial determination made by a District Justice nugatory. The following passage at the bottom of page 453 and on page 454 is particularly relied upon by the present applicant.
It is not in issue that a preliminary examination of the indictable offences with which the plaintiff was charged before the District Court took place in accordance with those provisions. This entailed a consideration by the justice of the case disclosed in the book of evidence, and of any submissions that may have been made to him, with a view to deciding
(a) whether the accused should be sent forward for trial on these charges or on other charges,
(b) whether the offences should be considered as minor offences,
(c) whether a summary offence only had been disclosed, or
(d) whether no case of any kind had been established against him, in which event he should be discharged.
In the event it is clear that the justice considered that no case of any kind had been established against the plaintiff and, in accordance with s. 8 subs. (5) of the Act of 1967, the justice discharged the plaintiff as to the offences under examination.
The court is satisfied, that in conducting the preliminary examination and in determining these questions, the justice was exercising the judicial power of the State as conferred by law on the District Court in accordance with the Constitution: see Articles 6 and 34 of the Constitution and the State (C) v Minister for Justice. When, in the exercise of such judicial power, there is a determination of these justiciable issues, that determination cannot be set aside or reversed by any other authority. Such action would constitute an invasion of the judicial domain and an attempt to exercise a judicial power of government otherwise than by the organ of State established for this purpose by the Constitution.
It is clear that the only order of the District Justice which required to be considered in Costello’s case was the order made under s. 8(5) that no sufficient case had been established against the accused on the offences charged and that he should be discharged. This was, as the Supreme Court found, a final order in a justiciable issue and as such was an exercise of the judicial power. It is true that the Chief Justice in the passage quoted seems to go further and express a similar conclusion in regard to orders made under s. 8(1) where a District Justice finds that a sufficient case has been made out to put the accused on trial for the offence with which he has been charged. This does not seem to have been an issue in the appeal nor does it appear from the report to have been argued before the court. Nor do the Chief Justice’s observations on this aspect seem to have been necessary to the court’s decision. For this reason with some hesitation and with the greatest respect for this, as for any judgment of Chief Justice O’Higgins and of the Supreme Court, I have come to the conclusion that the decision in Costello’s case is distinguishable from and not binding on me in the present case.
I have therefore come to the conclusion that I must make my decision without the benefit of a binding authority. I reject the applicant’s submissions in the present case. I can best express the reasons for which I reject these submissions as follows:
1. The determination made by the District Justice under s. 8(1) of the Criminal Procedure Act 1967 did not determine or purport to determine the guilt or innocence of the applicant but merely that there was a sufficient case to put the accused on trial.
2. The determination made by the District Justice under s. 8(1) was in no sense a final determination. It was a decision made at the end of conducting a preliminary examination that the accused should be put on trial. It seems to me that having regard to these two matters the order made by the District Justice did not constitute an administration of justice or an exercise of a judicial power for that purpose. It follows that I do not consider the substitution of fresh counts in the indictment under s. 18 by the Director of Public Prosecutions objectionable on the grounds contended for by the applicant.
3. There is however a further consideration which seems to me to be an additional reason, namely, that the decision or act of the Director of Public Prosecutions in substituting counts in the indictment occurs before the trial begins. While it clearly affects and delimits the issues at the trial, the indictment remains at all times during the trial under the control of the court of trial by virtue of its jurisdiction over indictments.
This application is accordingly refused.
FINLAY CJ
delivered the Judgment of the Court pursuant to Article 34.4.5° of the Constitution on 22 December 1988 saying: This is an appeal against the order of the High Court dated 23 February 1988 of Lardner J dismissing the application of John O’Shea for judicial review of an indictment preferred against him in the Cork Circuit Court.
The facts
The appellant was, on 26 June 1987, charged with receiving £172.50 in cash, contrary to s. 33 of the Larceny Act 1916. He pleaded not guilty and elected for trial by a judge and jury in the Circuit Court. A preliminary examination then took place in accordance with the provisions of the Criminal Procedure Act 1967, and on 4 September 1987 the learned District Justice made an order pursuant to s. 8(1) of the Act of 1967 sending forward the appellant for trial at the next sessions of the Cork Circuit Criminal Court on the charge set out in the statement of charge, to wit, the charge of receiving.
The indictment preferred against the appellant in the Circuit Court by the Director of Public Prosecutions consisted of two counts, one being of burglary contrary to s. 23A (1) (b) of the Larceny Act 1916, as inserted, and the other being a count of receiving stolen property contrary to s. 33(1) (a) of the Larceny Act 1916, the property in each count consisting of a cheque for the sum of £11,000.
It was agreed that these counts were inserted in the indictment in exercise by the Director of Public Prosecutions of the power contained in s. 18 of the Criminal Procedure Act 1967. It was also agreed that the counts thus inserted were founded on the documents and exhibits considered by the justice at the preliminary examination.
The appellant’s application for judicial review was exclusively based on an assertion that s. 18 of the Act of 1967 was invalid having regard to the provisions of the Constitution.
The impugned section
S. 18 of the Criminal Procedure Act 1967 reads as follows:
Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under section 7) and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment.
Submissions on behalf of the appellant
In support of the challenge to the constitutional validity of s. 18, the appellant made two submissions.
1. Firstly, he submitted that an opportunity on the part of the Director of Public Prosecutions after the conclusion of a preliminary examination and the sending forward of a person for trial on a charge or charges preferred against him in the District Court to substitute counts in respect of offences not charged in the District Court and not the subject matter of the return for trial was an unfair procedure and one which was unfairly discriminatory against the accused in respect of whom such a power was used and was thus invalid, having regard to the provisions of the Constitution.
2. It was submitted that the power contained in s. 18 of the Act which permitted the inclusion in the indictment of counts either in substitution for or in addition to counts for which an accused had been sent forward for trial constituted an invasion, when availed of by the Director of Public Prosecutions, by him of the judicial domain and an attempt to exercise the judicial power of government otherwise than by a court, and as such, having regard to Article 6 and Article 34 of the Constitution, is invalid. In support of this submission the appellant relied strongly upon the decision of this court in Costello v Director of Public Prosecutions [1984] IR 436 which decided that s. 62 of the Courts of Justice Act 1936 was invalid, having regard to the provisions of the Constitution in that it constituted an interference by the executive in the judicial domain.
Other relevant statutory provisions
S. 8 of the Act of 1967 provides the following decisions or orders which can be made on a preliminary examination by a justice under that Act. At subs. (1) if the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial. At (2), if the justice is of opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charged, he shall cause him to be charged with that offence and, having given him an opportunity of making a statement in reply to that charge, send him forward for trial. Subs. (4) provides that if the justice is of opinion that a summary offence only is disclosed and the Attorney General consents, he shall cause the accused to be charged with a summary offence and deal with the case accordingly. At subs. (5) it is provided:
If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.
S. 11 of the Act of 1967 provides for the service on the accused who has been sent forward for trial of a list of any further witnesses whom the prosecution proposes to call with a statement of the evidence that is to be given by them and a list of any further exhibits or any further evidence to be given by witnesses already on the list of witnesses.
S. 12 provides a right to the accused to waive a preliminary examination and to be sent forward for trial with a plea of not guilty, unless the prosecutor requires the attendance of a witness under s. 7(2). S. 13 provides in relation to all indictable offences, except certain excluded offences, a right on the part of an accused person during the course of a preliminary examination to plead guilty, and an obligation on the District Justice, if he is satisfied that the accused understands the nature of the offence and the facts alleged, to send him forward for sentence under that section with that plea to the court to which if he had pleaded not guilty he could lawfully have been sent forward for trial.
The decision of the court
The first ground submitted on behalf of the appellant which is above set out is not contained in either the statement grounding the application for judicial review nor in the affidavit of the solicitor for the appellant which supported that application.
It does not appear as a submission recited and dealt with in the extremely comprehensive and careful judgment of the learned trial judge, although counsel who appeared on the hearing of the application in the High Court on behalf of the appellant stated to this court that some mention of this point was made. The notice of appeal to this court does not contain any ground which encompasses this submission. It has been decided by this Court in Brady v Donegal County Council [1989] ILRM 282 that notwithstanding the fact that it is a fundamental principle of the appellate jurisdiction of this court that it does not normally decide issues which have not been raised and decided in the court of trial, that in the case of a challenge to the constitutional validity of a statutory provision that the court should, for the reasons there set out, consider every relevant ground of appeal, irrespective of whether or not it raises an issue determined in the court below, and either determine such issue or remit it to the High Court to be determined in the first instance.
The court has decided in regard to the first submission made on behalf of the appellant, which appears to be an issue not decided in the High Court, that it should consider that issue and determine it in this Court.
Unfairness and discrimination of the impugned section
The detailed submission made on this heading was to the effect that if, for example, in the instant case the appellant had been charged in the District Court with burglary and the receiving of the cheque for the sum of £11,000 that he would have had an opportunity firstly of deciding whether he would plead guilty or not guilty at that level to those offences. Secondly, he would have had the opportunity of making a statement when charged with them, and, thirdly, he would have had an opportunity of examining witnesses in respect of them on oath. It is then contended that by reason of the substitution of these two counts on the indictment after his return for trial in respect of the other charge of receiving, even though they are founded upon the documents and exhibits before the District Justice that he does not now have an opportunity of pleading other than to the indictment and that he does not now have an opportunity of any preliminary examination of any of the witnesses on oath but must do so before the jury. This is asserted not only to be unfair but to be a discrimination between the person against whom all possible charges are made in the District Court arising out of any one set of facts and the person against whom one or a limited number of charges are made in the District Court and substituted or added charges are inserted in the indictment pursuant to s. 18. The court is satisfied that this submission must be rejected. The right of a person charged with an indictable offence to a preliminary examination before a District Justice is not a constitutional right but rather is a statutory right. This has not been contested in this case by counsel for the appellant and it is, in the view of the court, undoubtedly the true legal position. The right to a preliminary examination relevant to these proceedings, is contained in Part II of the Act of 1967 which provides between s. 5 and s. 20, inclusive, a complete and comprehensive procedure. It is incorrect to seek to identify individual parts of the machinery thus laid down as being rights which can be looked at separately from and as immune from effect by other provisions of this Part of the statute. When, therefore, there is provided in ss. 6, 7 and 8 machinery for a preliminary examination with the possible outcome of the accused being sent forward for trial or being discharged as to the offence under examination, this right must of necessity be construed as a right which under the part of the Act concerned is expressly subject to the possibility that if the accused is sent forward for trial substituted or additional counts may be entered on the indictment provided that they are founded upon the documents and exhibits considered by the District Justice. Furthermore, there is nothing unfair in such a provision nor could it be said by any standards to be an inadequate form of preliminary examination. Having regard to the provision contained in s. 18 confining the right of the prosecutor in entering substituted or additional counts to the entering of those that are founded on the documents and exhibits considered by the justice, there is no risk that an accused can face counts on an indictment after an order sending him forward for trial which arise only from additional evidence served under s. 11 of the Act of 1967. Furthermore, any accused who has chosen to waive a preliminary examination and to be sent forward for trial with a plea of not guilty makes use of a procedure which having regard to the terms of s. 12 of the Act of 1967 appears clearly to envisage that the District Justice shall not consider the documents and exhibits for the purpose of making an order sending the accused forward for trial but rather will send him forward for trial on his waiver and accordingly the provisions of s. 18 would not apply in such a case. With regard to an accused who at any stage of a preliminary examination has indicated to the court a wish to plead guilty, again, the provisions of s. 18 cannot be operated in his case for there is no order sending him forward for trial but an order only under s. 13 sending him forward for sentence.
It is, of course, fundamental to a consideration of this question of the alleged unfairness or discrimination of the procedure involved in s. 18 to have regard to the fact that the right which is given to the prosecutor under this section is a right to insert counts on an indictment only and that it is the judge presiding over the trial who has the ultimate discretion as to whether the procedure of trying the accused on those and other counts or on those counts alone is lawful and fair and that every question of law or of fact which may be available to the accused in defence of the charges contained in those counts is fully and adequately available to him on his trial with the jury. In these circumstances, the court rejects the allegation of invalidity arising on this submission.
Alleged invasion of the judicial domain
The decision of this Court in the case of Costello v Director of Public Prosecutions concerned a case in which after a preliminary examination a District Justice had decided to discharge an accused person as to the offence under examination operating the power vested in him under s. 8(5) of the Act of 1967 which by definition involved a conclusion on his part that none of the other provisions of s. 8, which have been shortly outlined in this judgment, applied. Upon that having occurred, the Director of Public Prosecutions in purported exercise of powers vested in him by s. 62 of the Courts of Justice Act 1936, (which was applied by s. 48 of the Courts (Supplemental Provisions) Act 1961 to the present courts), directed that the plaintiff be sent forward to the Circuit Court for trial on the offences of which he had been discharged: The precise issue which arose in that case is identified in the Decision of the Court pronounced by O’Higgins CJ where, at 456, it is stated as follows:
In the first place the Court does not accept that the power conferred by the section is not ‘one to change or modify the order of the District Court in the matter’. In the view of the Court this is precisely the purpose of the direction permitted by the section. The determination by the District Court, whether incorporated in a formal order or not, is to the effect that the person should not be sent forward for trial. This determination is arrived at by the District Justice because he is of opinion that the evidence is not sufficient to put the defendant on his trial for an indictable offence or, in the terms of the procedure under the Criminal Procedure Act 1967, because there is not a sufficient case to put him on trial for the offence charged or any offence. This is a judicial determination. The only effect and the intended effect of a direction under s. 62 of the Act of 1936 is to render this determination nugatory and without force, and thereby to frustrate the order of the District Court.
The court is satisfied that the issue arising in that case and the decision of this Court in that case is clearly distinguishable from the issue which arises for determination in the instant case.
The making of an order of discharge under s. 8(5) as was made in Costello’s case was not an acquittal of the accused as would be a verdict of not guilty on an indictment, but it was a determination that he should not on the evidence tendered be sent forward for trial. Consequently, an order under s. 62 of the 1936 Act was in direct conflict with the order of discharge which had been made under s. 8(5).
The court rejects the contention that the fact that the District Justice in the instant case did not exercise the power vested in him by s. 8(2) is to be interpreted as a finding by him that the offence in respect of which he did send the appellant forward for trial was the only offence supported by the evidence. Consequently, the substitution of counts in the indictment pursuant to s. 18 is not in any conflict with the order made by the District Justice in this case.
There is no question of s. 18 being capable of being operated or being operated in this case, so as to set aside or render nugatory the fundamental decision of the District Justice which was to the effect that in regard to the facts contained in the documents and exhibits before him the accused should be sent forward for trial. It is only when such a decision is made and, indeed, in a sense in support of such a decision that the power to substitute or add counts arises.
Having regard to the provisions of the Prosecution of Offences Act 1974, the Director of Public Prosecutions in commencing and conducting criminal prosecutions discharges a statutory function in the name of the People permitted by Article 30.3 of the Constitution. It is and must be an inherent part of the function of a prosecutor of a criminal offence triable on indictment to frame the precise form of the indictment and thereby to ensure that the true issue between the People and the accused is properly and fairly put before the court. To do so is an administrative or executive function and certainly is not a judicial function. By substituting or adding a count the Director of Public Prosecutions is not purporting to determine any issue between the People and the accused, but is merely providing the vehicle for the determination of such issues by the court and the jury.
This Court is therefore satisfied that this challenge against the constitutional validity of s. 18, based on an alleged invasion of the judicial domain, must also fail.
The Decision of the Court, accordingly, is that it has not been shown that the provisions of s. 18 of the Criminal Procedure Act 1967 are invalid, having regard to any of the provisions of the Constitution.
This appeal is accordingly dismissed.
The State (Michael Duggan) v Edward Evans
The High Court
5 October 1977
[1977 No. 242 SS.]
[1978] 112 I.L.T.R. 61
Finlay P.:
This is a Case Stated to the High Court by District Justice O hUaidhaigh of the Dublin District Court, pursuant to the Summary Jurisdiction Act, 1857, as amended by The Courts (Supplemental Provisions) Act, 1961, on the application of the complainant.
The defendant was on the 7th of February, 1977, charged at a sitting of the District Court that between 2 a.m. and 3 a.m. on the 27th day of December, 1976, having entered as a trespasser a building known as Stanley’s Newsagents, 2A Clonliffe Road within the Dublin Metropolitan District, he did steal therein books to the value of £2, the property of Joseph Stanley, contrary to section 23 (A) of the Larceny Act, 1916. He was also charged in the alternative with receiving.
The case was tried summarily and at the conclusion of the evidence of the prosecution the learned District Justice ruled that a prima facie case has been established on the charge contrary to section 23(A).
Counsel for the defendant then submitted that the charge was defective in that although section 23 (A) of the Larceny Act, 1916, had been inserted into that Act by virtue of the provisions of the Criminal Law (Jurisdiction) Act, 1976, there was in the charge no reference to the 1976 Act. The learned District Justice accepted this submission and dismissed both charges. It is against that decision on a point of law that this appeal by way of Case Stated arises.
The first issue which arises is whether the charge reciting only the Act of 1916 and containing no reference to the Act of 1976 is a valid charge, and the second issue is whether, if it is not valid, the learned District Justice erred in law in dismissing the charge by reason of that invalidity.
The particular acts complained of in the charge did not constitute a separate offence until the passing of the Act of 1976. That Act, in addition to creating this new offence by way of insertion into the Act of 1916, also provided a new maximum punishment for it. A perusal therefore of the Larceny Act, 1916, carried out in ignorance of the provisions of the Criminal Law (Jurisdiction) Act, 1976, would reveal neither the particulars of the offence charged nor the appropriate punishment for it.
This, on the face of it, appears to me to be an insufficient charge and if a conviction proceeded upon it on those precise terms it would appear to me to be a bad conviction.
Sub-rules (2) and (3) of Rule 88 of the District Court Rules, 1948, read as follows:
“(2) Subject to the provisions of paragraph (3) hereof, no objection shall be taken or allowed on the ground of a defect in substance or in form or of an omission in the summons, warrant or other document by which the proceedings were originated, or of any variance between any such document and the evidence adduced on the part of the complainant at the hearing of the case in summary proceedings or at the examination of the witnesses during the preliminary investigation of an indictabe offence, but the justice may amend any such summons, warrant or other document, or proceed in the matter as though no such defect, omission or variance had existed.
“(3) Provided, however, that if in the opinion of the Justice the variance, defect or omission is one which has misled or prejudiced the defendant or which might affect the merits of the case, he may refuse to make any such amendment and may dismiss the complaint either without prejudice to its being again made, or on the merits, as he thinks fit; or if he makes such amendment, he may upon such terms as he thinks fit adjourn the proceedings to any future day at the same or any other place.”
The provisions of these two sub-rules are similar in effect to the provisions of rules 59 and 181 of the District Court Rules, 1926. Those rules were interpreted by the former Supreme Court in the case of The Attorney General (Mahony) v. Hourigan [1945] I.R. 266. In that case it was decided that a summons apparently bad for triplication in that it charged the possession, use or carrying of a firearm was validated by the prohibition against the taking or allowing of an objection for alleged defect in form or substance contained in rule 59 and must therefore proceed for hearing before the District Justice who should exercise the discretion vested in him by rule 181 as to whether or not to amend.
Applying the principles outlined by that decision to the Rules of 1948 in general and the facts of this case in particular, I am satisfied that the position is as follows. If on his own initiative or as a result of submissions made before him, a District Justice concludes that there is a defect in substance or form or an omission in the document by which a prosecution before him has been originated or that there is a variance between it and the evidence adduced for the prosecution, he is bound to proceed as follows:
1. He must first ascertain as to whether the variance, defect, or omission has in his opinion misled or prejudiced the defendant or might in his opinion affect the merits of the case.
2. If he is of opinion that none of these consequences hase occurred he must either amend the document or proceed as if no such defect, variance, or omission had existed.
The Rule contains no express guidance in the event of the proviso in sub-rule (3) not arising, as to whether the justice should proceed by amendment or by ignoring the frailty in the document. It appears to me, however, that this choice should be made by reference to the effect of such frailty on an eventual conviction if such were recorded. Where, as would appear to be the position in this case, amendment is necessary to make a conviction on the charge valid, the amendment should be made; where it is not it may be omitted. Furthermore, this jurisdiction and obligation of the Justice in an appropriate case to make an amendment is not in my view dependent on an application by the prosecution but can and should be exercised, as is the power of a Court to amend an Indictment, on his own initiative.
3. If on the other hand the justice is of the opinion that the frailty in the document has misled or prejudiced the defendant or if of the opinion that it might affect the merits of the case three alternative courses are open to him:
(a) He may dismiss the case without prejudice,
(b) He may dismiss the case on the merits,
(c) He may amend the document and adjourn the case upon terms.
Again the Rule contains no express guidance as to the grounds on which the choice between these three alternatives must be made and it is not possible to define them with particularity save that the decision must presumably rest on the extent and nature of the misleading, prejudice, or possible affect on the merits of the case set against the requirements of justice between the prosecution and the defendant.
It would appear to me that a dismiss on the merits would not be justified unless the opinion of the justice was that there was a possibility that the defect would affect the merits in a manner not certain to be cured by adjournment or that an adjournment was necessary but would be an injustice.
I must interpret the Case Stated before me as indicating that in effect the learned District Justice allowed an objection to the charge on the grounds of the omission of a reference to the Act of 1976. There is no suggestion that he embarked on any enquiry as to the consequences of that omission on the defendant or as to its effect on the merits of the case or that he made any finding on that topic. I must therefore answer the precise question raised in the case in the negative and hold that the learned District Justice erred in law in dismissing the charge upon the grounds apparently relied upon.
The case should therefore proceed before the District Justice in accordance with the procedures laid down in this judgment.
Only one other matter arises. It was suggested in the course of the argument that if I were to reach the decision which in fact I have, it would be at variance with a decision of a Divisional Court (of which I was a member) in the case of The State (Anthony Foran) v. D.J. Eileen Kennedy and Others. That decision which was unreserved and is not reported arose out of an application by the prosecutor to quash a conviction for an offence stated to be contrary to section 4 of the Vagrancy Act, 1824.
The decision of the court was that the conviction was bad on the grounds that the Vagrancy Act, 1824, by its terms did not apply to Ireland and was only so applied by the Preventon of Crimes Act, 1871. The Court accordingly decided that a conviction which contained no reference to the latter act was bad on its face.
What was in issue in that case was, of course, a conviction and no question of the application of rule 88 of the District Court Rules arose nor was there any prohibition against the making or allowing of an objection to the form or substance of a conviction. There does not appear to me therefore to be any inconsistency between the view which I have reached in this case and the decision of the Divisional Court in Foran’s Case.
The State (Eamonn Daly) v District Justice Jariath Ruane
His Honour Judge Roe, President of the Circuit Court and the Director of Public Prosecutions
1986 No. 441 SS
High Court
10 February 1987
[1988] I.L.R.M. 117
(O’Hanlon J)
10 February 1987
Subject: Criminal procedure
Keywords: Certiorari; Preliminary examination
C
O’HANLON J
delivered his judgment on 10 February 1987 saying: The prosecutor seeks an order making absolute a conditional order of prohibition granted by MacKenzie J on 30 June 1986 prohibiting the second and third named respondents from entering on or proceeding with the trial of the prosecutor for certain offences with which he is charged, and making absolute a conditional order of certiorari granted on the same date, directing the first-named respondent to send before the High Court for the purpose of being quashed an order made by him on 30 April 1986 sending the prosecutor forward for trial on the said offences. In the grounding affidavit of the prosecutor he challenges the validity of the order sending him forward for trial on the following grounds:
1. He objected to statements of witnesses taken from the Book of Evidence served on him in accordance with the provisions of the Criminal Procedure Act 1967, being put to witnesses whose evidence was being taken on deposition and claimed that instead their original statements as made to the Gardai should have been put to them for verification purposes. He claims that this objection was wrongly overruled by the District Justice.
2. He claims that objections made by counsel on his behalf on this and other grounds to the admissibility of various items of evidence were not noted by the District Justice on the depositions as required by Rule 55(1) of the District Court Rules, save in a limited number of cases.
3. He claims that witnesses were asked could they identify anyone in Court during the taking of depositions, when they had previously failed to identify the prosecutor at an identification parade, or had not been asked to attend such identification parade in which the prosecutor was a participant, and objections by counsel on his behalf to such questions were overruled by the District Justice.
4. He claims that when a Garda Superintendent was being examined concerning a search order issued to him, the original search order was not produced and identified by the witness but a copy thereof was put to him, notwithstanding objection taken by counsel on behalf of the prosecutor, and that such objection was wrongly overruled by the District Justice.
5. He claims that the District Justice wrongly disallowed certain questions which the prosecutor’s counsel wished to put to two of the witnesses whose evidence was taken on deposition.
6. He claims that application was made by counsel on his behalf to the District Justice to direct the production of the original exhibits in the case, and that this application was wrongly refused by the District Justice.
7. He claims that when depositions had been taken, application was made on his behalf for an adjournment to enable two further witnesses to be called, whose names did not appear on the list of witnesses furnished under the provisions of the Criminal Procedure Act 1967, and that this application was wrongfully refused by the District Justice.
8. He claims that the District Justice wrongfully refused an adjournment to the following day to enable counsel to prepare his submissions and wrongfully refused to make available copies of the depositions which had been taken.
9. He claims that the District Justice failed to consider the exhibits in the case before returning him for trial, in breach of the requirements of s. 7(1) of the Act of 1967.
10. He contends that the copy of the sworn information served on him in purported compliance with the provision of s. 6(1)(b) of the Act of 1967 was defective and incomplete, in that it bore no signature or copy signature of the District Justice who signed it and he claims that the first-named respondent should not have sent him forward for trial in those circumstances.
11. He further claims that the evidence in support of the charges brought against him was deficient in that no evidence was given to establish that the Superintendent of the Garda Siochana who purported to endorse for execution the warrant for the arrest of the prosecutor was the person to whom the said warrant had been addressed.
12. Finally he claims that the first-named respondent should have asked him if he had anything to say in answer to the charges preferred against him, before sending him forward for trial on the said charges.
An affidavit showing cause why the said conditional orders of prohibition and certiorari should not be made absolute was sworn by Mr Frank Keane, assistant solicitor in the office of the Chief State Solicitor, who acted on behalf of the Director of Public Presecutions in the conduct of the preliminary examination of the charges against the prosecutor before the first-named respondent. At the hearing of the application to make absolute the said conditional orders notwithstanding cause shown, he was cross-examined on the contents of his said affidavit.
Having considered the contents of the two affidavits, the oral evidence of Mr Keane, and the submissions of counsel, I have reached the following conclusions regarding the various grounds, numbered as above, on which it is sought to challenge the validity of the order sending the prosecutor forward for trial in the Dublin Circuit Court:
1. In my opinion it was permissible to put to witnesses who were giving evidence on deposition, copies of their statements of evidence, prepared in compliance with s. 6 of the Criminal Procedure Act 1967, so that they could confirm that it was a correct statement of the evidence to be given by each of them in the event of the prosecutor being sent for trial, and it was not obligatory to put to them the original statements taken by the Gardai on which these copy statements were based.
2. It is accepted that the District Justice duly noted a number of objections made on behalf of the prosecutor to the admissibility of certain evidence, which objections he overruled, but Mr Keane is not in a position to confirm that all such objections were duly noted, as required by the provisions of Rule 55(1) of the Rules of the District Court, and it appears that in some instances there may have been a failure to comply with the strict requirements of the Rule. If this ground of objection stood alone I would not regard it as being of sufficient materiality to invalidate the order sending the prosecutor forward for trial.
3. The District Justice ruled that it was permissible to ask certain witnesses whether they could identify in Court any person concerned in the charges against the prosecutor, and, in my opinion, he acted within his proper jurisdiction in making this ruling and his order is not open to challenge on this ground.
4. I would also hold that the Garda Superintendent was entitled to give evidence at the preliminary hearing to the effect that a copy search order produced to him was a true copy of a search order issued by him. The obligation to produce and identify the original search order is a matter that could arise on the trial of the prosecutor if he were sent for trial but formal proof of the document was not, in my opinion, a necessary link in the conduct of the preliminary hearing before the District Justice.
5. In disallowing questions which counsel for the prosecutor sought to put to certain witnesses whose evidence was being taken on deposition, the District Justice was acting within his proper jurisdiction and his said rulings do not, in my opinion, afford grounds for challenging the validity of the order sending the prosecutor forward for trial.
6. I am not satisfied that the prosecutor has discharged the onus of proof which lies on him of establishing that the District Justice refused to direct the production of the original exhibits in the case, when asked to do so by counsel for the Prosecutor. Under the provisions of s. 6(3) of the Act of 1967, an accused person has a right to inspect all exhibits. A request for such inspection would normally be directed to the Director of Public Prosecutions or his representatives, since the Director is in charge of the prosecution and must cause the documents referred to in s. 6 of the Act to be served on the accused. These include a list of the exhibits in the case (if any), and such exhibits would normally be retained under the control of the Director, or of the Garda authorities acting on his behalf, pending the trial of the action, and during the conduct of the preliminary hearing in the District Court. Mr Keane has no recollection of any request having been addressed to him at any time during the preliminary hearing for the production of the original exhibits, and says that they were available in Court and could have been produced at any time if required. Mr Keane says that no point was taken about an alleged failure to produce original exhibits when the prosecutor’s counsel was submitting that his client should not be sent forward for trial. Finally, when one turns to the grounds relied upon by the prosecutor in paragraph 27 of his affidavit, and numbered (a) to (j) inclusive, for challenging the validity of the order of the District Justice, they do not include any reference to this particular matter of complaint. Accordingly, I do not propose to consider this matter any further.
7. I would also hold that the District Justice was acting lawfully and within his proper jurisdiction in refusing a further adjournment of the preliminary hearing before him to enable the prosecutor to call two further witnesses so that their evidence could be taken on sworn deposition. The documents referred to in s. 6 of the Act of 1967 had been served on the prosecutor on 12 February 1986. Four days were then set aside for the taking of depositions, by reason of the request, which, as I understand it, emanated from the prosecutor, that certain witnesses should be required to give evidence on sworn deposition, and the date allotted for this purpose were 10, 28, 29 and 30 April 1986. It would appear from Mr Keane’s affidavit that it was only at the conclusion of these hearings that an application was made to call two further witnesses, whose names did not appear in the list of witnesses the prosecution proposed to call at the trial. Mr Keane avers that ‘they had not been summoned and the relevance of their evidence was not demonstrated’. In my opinion a District Justice must be allowed a discretion to reject such an application if he considers it is not well-founded and I have no reason to believe that on the occasion in question he was not acting properly and within his jurisdiction.
8. Similarly, I see no reason why the refusal of the District Justice to adjourn the further hearing to the following day to enable counsel prepare his submissions should be impugned, nor do I consider that there was an obligation imposed on him to make available to counsel for the prosecutor the copy depositions which had been taken in compliance with the statutory requirements. It is apparent that the prosecutor was represented by solicitor and counsel throughout the taking of the evidence by sworn deposition and the prosecutor’s representatives had every opportunity to become aware of the content of the evidence which had been given over a period of four days, in their presence.
9. It is claimed that the District Justice failed to consider the exhibits in the case before returning the prosecutor for trial. S. 7 of the Criminal Justice Act 1967, imposes an obligation on the justice to consider the documents and exhibits, any deposition or statement taken in accordance with that section, and any submissions that may be made by or on behalf of the prosecutor or the accused. The manner and extent of his consideration of the exhibits need not be the same, however, in every case. For example, in a charge of demanding money by menaces, by letter, the relevant letter, if produced as an exhibit, would be an important element in establishing the guilt of the accused, and the District Justice would normally be expected to scrutinise it carefully in the course of the preliminary examination, when determining whether, in his opinion, there was a sufficient case to put the accused on trial for the offence with which he has been charged. Similarly, if the accused is charged with being in possession of a housebreaking implement by night without lawful excuse, the justice would have to consider whether the article, if an exhibit in the case, was capable of being used for the purpose of housebreaking.
Other exhibits may have to be proved formally, as being incidental to the charges brought against an accused person, and I take by way of example the plastic bags containing large quantities of foreign currency allegedly found in the possession of the prosecutor in the present case. It seems to me to be quite unnecessary for a justice conducting a preliminary examination under the Act to open up such bags of currency and examine their contents, unless some submission is made to him on behalf of the accused suggesting that such detailed examination may be necessary before he can form an opinion that there is sufficient case to put the accused on trial.
Mr Keane gave evidence that all the original exhibits were in Court during the course of the preliminary examination and could have been produced if required. It appears that a number of the exhibits were produced physically by witnesses during the taking of their evidence on deposition—for example, photographs produced by D./Gda. Paul Firth; a search order produced by D./Supt. John W. Reynolds; bags of foreign currency produced by D./Sgt. Martin Donnellan. Other exhibits, not in the original list, were produced during the taking of depositions—two copy letters by Mr Donal Quinn, and a copy of the sworn information and the warrant for the arrest of the prosecutor, by Garda Muldoon.
I am satisfied that the exhibits were produced in court and that any exhibit which required special consideration by the District Justice was drawn to his attention by counsel for the prosecutor and was the subject of submissions in the course of the four-day hearing, and that the requirements of s. 7(1) of the Act were complied with to the extent required by the circumstances of this particular case.
10. It was further submitted on behalf of the prosecutor that there was a failure to comply with the requirements of s. 6(1)(b) of the Act of 1967, in that the copy of the sworn information in writing upon which the proceedings against the prosecutor were initiated which was served on the prosecutor, was incomplete because it did not contain a copy of the signature of the particular District Justice before whom the information was sworn.
The copy did, however, give all the contents of the information, and the date of swearing of same, and, while not identifying the justice before whom it had been sworn by name it identified him as one of justices for the time being assigned to the Dublin Metropolitan District. When evidence was given by way of sworn deposition before the first-named respondent, D./Garda Muldoon confirmed that the information had been sworn before District Justice Peter Connellan.
The omission of the name from the copy served on the prosecutor was not, in my opinion, of any real significance, and even if it involved a technical failure to comply fully with the requirements of s. 6(1)(b) of the Act it was not of such a character as should vitiate the order sending the prosecutor forward for trial. There was, at the very least, a substantial compliance with the requirements of the section, as envisaged in the judgment of Mr Justice Henchy in the case of The State (Williams) v D.P.P. and Kelliher [1983] IR 112.
11. Next it was contended that no evidence was adduced before the District Justice to establish the authority of Superintendent Noel Anderson to endorse for execution the warrant for the arrest of the prosecutor which had been obtained on foot of the sworn information of D./Garda Muldoon.
It is by no means clear to me that even if this were established as a matter of fact, it would take effect to invalidate an order made by the District Justice sending the prosecutor forward for trial after the procedures laid down in the Criminal Procedure Act 1967, had been complied with. There are dicta in the judgments of Maguire CJ in In re O Laighleis [1960] IR 93, at p. 129, and of Chief Justice O’Higgins in The People (D.P.P.) v Walsh [1980] IR 294, at pp. 304–306, (later applied by the Court of Criminal Appeal in The People (D.P.P.) v Campbell [1983] 2 Frewen 148 which support the view that an invalidity in arrest procedures need not, of itself, invalidate subsequent proceedings in the course of which an accused person is charged before, and dealt with by, the Criminal Courts.
The District Justice in making the order sending the prosecutor forward for trial must be taken to have reached a conclusion that Superintendent Anderson was duly authorised to endorse the warrant for the arrest of the prosecutor for execution, or that this was not a matter which required to be proved to his satisfaction before making the order in question.
This leads me to a general consideration of the scope for challenging the validity of such an order in proceedings for relief by way of certiorari, and what I have to say in this regard applies to many of the grounds which have been relied on by the prosecutor in support of his application in the present case.
Relief by way of certiorari is only appropriate in a limited category of cases. Generally speaking it involves the applicant in showing that the inferior Court or tribunal acted without jurisdiction, or in excess of jurisdiction, or in disregard of fair procedures, so that the applicant’s rights to natural or constitutional justice were violated. Entitlement to the remedy may also arise where there is an error on the face of the record, or where an order has been obtained by collusion or fraud.
What must be stressed is that the certiorari procedure cannot be utilised to convert the High Court into a court of appeal from all decisions of the District Court, with the court being required to embark upon a re-examination of the evidence given before the lower court and a re-assessment of all submissions made during the course of the hearings in the lower court.
An important principle is, in my view, correctly stated in Halsbury, Laws of England 3rd edn., at par. 119 of the treatise on Crown Proceedings, as follows:
Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior court will not grant the order of certiorari on the ground that the inferior tribunal had misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence), be deemed to exceed or abuse its jurisdiction.
A similar passage in an earlier edition of the same work was cited with approval by the Court of Appeal in England (Greer LJ) in the case of R v Minister of Health [1939] 1 KB 232, at p. 246. In R v Paddington Rent Tribunal [1974] 1 All ER 448, Lord Goddard, CJ, said:
What we are really being asked to say is either that they (the Tribunal) have misconstrued the statute or that they have rejected evidence or misdirected themselves in some way, but even if they came to a decision without evidence, that is not a matter on which certiorari can be granted, and it follows that this application must fail. (at p. 450)
See also the judgment of Molony CJ in Rex v Murphy [1921] 2 IR 190:
When the Court has jurisdiction to decide a matter, its jurisdiction is not ousted because it happens to give an erroneous decision, and it certainly cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence. (at p. 226)
This reluctance to interfere with the order of a lower court made in exercise if its proper jurisdiction, by the grant of certiorari, has been even more firmly established where the order impugned is one sending an accused person forward for trial on an indictable offence. The conclusion of the Irish Queen’s Bench Division in the case of Reg. (Blakeney) v Justices for Co. Roscommon [1894] 2 IR 158 was that the decision of Justices of the Peace, committing a defendant for trial, or admitting him to bail, under the Petty Sessions (Irl) Act, 1851, cannot be brought up by certiorari. The members of the court had no doubt that the justices were clearly wrong in forming the opinion that the evidence taken before them was ‘sufficient to put the accused person on his trial, or raised a strong or probable presumption of guilt’, but the court refused relief by way of certiorari to quash the return for trial.
The following passage appears in the judgment of Sir Peter O’Brien, CJ:
Now it will be seen that the action of the magistrates is to depend upon their opinion as to the sufficiency of the evidence, and they are to determine between committal and bail, as they shall see fit . In my judgment the language of the section confers upon the magistrates a discretion to determine whether what has been deposed to, and is embodied in the deposition, is sufficient to put an accused person on his trial for the offence with which he is charged. This discretion being vested in the magistrates, and it having been exercised, as in the present case, how stands the law? Can we control or review the exercise of their discretion by the magistrates? In my opinion, it is clear upon the authorities that we cannot by mandamus compel magistrates to return an accused person for trial, once in the exercise of their discretion they have determined he shall be discharged, and it is equally clear that we cannot in any proceeding by certiorari quash a decision of the magistrates, which results from the exercise of a discretion vested in them by law. (at p. 170)
Apart from basing his decision on the discretionary nature of the jurisdiction exercised by the magistrates, Sir Peter O’Brien attached considerable importance to the fact that, at that time, their decision on the issue of return for trial was unrecorded (‘There is no legal entry made pursuant to statute upon which certiorari is to attach and remove’) whereas in the case of the order made by a District Justice under the Criminal Justice Act 1967, an order is, in fact, made up, under s. 8(1) of the Act and the form is prescribed in the District Court (Criminal Procedure Act 1967) Rules, 1967, (SI No. 181 of 1967), Rule 10 and Form 12.
However, the presence or absence of a formal order was not considered to be the critical factor by other members of the Court which decided Blakeney’s case. O’Brien J said:
Even if an order were expressly required to be made that could not qualify or alter the purpose and object of the act of the Justices, which is simply committing the party for trial, and in the origin of the office was done by Justices without any form whatever. And it is hardly possible to conceive any explanation of such an entire blank of authority for such a proceeding as the present, except that the object of such a use of certiorari is not to control or correct an inferior tribunal, but to stop the transitus of the case to another tribunal. Considering that the law of certiorari is determined by instances of actual use, to which no other invariable principle is applicable, the want of all suggestion of such a use of the remedy occurring in the whole history of the law … would be, to my mind, an absolutely sufficient ground for holding that such an application as the present cannot be maintained. (at p. 175)
Holmes J said:
Where the Justices decline to enter upon, or to proceed with, an inquiry of this kind, this Court may compel them to perform their duty by writ of mandamus; but it has no right to interfere with them when they have done the very thing which the statute directs them to do. (at p. 180)
Madden J said:
I am of opinion that the magistrates in returning the accused for trial acted within their jurisdiction in a matter committed by statute to their determination. From this it follows that their decision cannot be questioned by writ of certiorari. That writ exists for the purpose of restraining inferior tribunals within the limits of their jurisdiction; not for the purpose of correcting any errors into which they may fall while acting within those limits. I content myself with stating the propositions upon which my judgment rests. (at p. 181)
Blakeney’s case was followed by the Irish King’s Bench Division in Rex (Hastings) v Co. Galway Justices (1909) 43 ILTR 185. The judgment of the court was delivered by Chief Baron Palles. He said:
I do not think we can hear this case. I think we are bound by Blakeney’s case and therefore we are of opinion that this application is wholly unsustainable. It is an application for a writ of certiorari to bring up a so-called order of the magistrates at Petty Sessions returning the present prosecutor for trial upon a charge of libel. In my opinion the decision of the King’s Bench in R (Blakeney) v Justices of Co. Roscommon, by which we are conclusively bound, and which I take the liberty of saying I entirely concur in, was that the decision of the magistrates, by virtue of which a case was sent forward for trial, was not an order within the rule of this Court that enables orders by magistrates to be brought up and enquired into by certiorari. I take one ground that was relied on by two of the judges in Blakeney’s Case—it is not a final adjudication. I think it is absolutely out of the question that we can take the reasons of the learned judges and say that these reasons are obiter dicta. They are the reasons upon which they arrived at their conclusion.
See Halsbury, Laws of England , 4th edn., Vol 11, par. 1529, where these two decisions are treated as being still authoritative. In Reg. v Norfolk Quarter Sessions, ex p. Brunson, [1953] 1 QB 503, Lord Goddard CJ said:
No court has suggested that because justices in taking depositions have heard a witness who it turns out was objectionable on some point or other, that vitiates the committal. The committal takes the place of the form of presentation by grand jury who could hear what evidence they liked, or no evidence … As long as it is shown that the Justices have acted in accordance with the Indictable Offences Act, 1848, a committal by them is a good committal. Whether the evidence that has been given before the Justices will be admitted at the trial is quite another matter ….
The cases of Blakeney and Hastings were considered by Mr. Justice Murnaghan in The State (Batchelor & Co. Ireland Ltd.) v O Leannain [1957] IR 1 the issue involved in that case being whether the District Justice had acted within his jurisdiction in committing a limited company for trial on indictment. Holding that there was no jurisdiction to do so, having regard to the specific provisions of ss. 17 and 18 of the Indictable Offences Act 1849, Murnaghan J went on to hold that it was open to him to make absolute the conditional order of certiorari which had been granted for the purpose of quashing the return for trial. He took the view that the decisions in Hastings and Blakeney were not authorities to the contrary, in the event of it being shown that the District Justice had acted in excess of or without jurisdiction.
The further obligation imposed on the District Justice to observe a basic fairness in procedures was touched upon by Mr Justice Finlay, then President of the High Court, in The State (Healy) v Ballagh DJ High Court (Finlay P) 22 April 1983. A complaint was made that the District Justice failed to procure the production of two of the exhibits in the case which were required in connection with the cross-examination of two of the witnesses whose evidence was being taken on deposition. The following passage appears at p. 5 of the written judgment:
I am satisfied that the only grounds on which the Prosecutor could be entitled to have made absolute this Conditional Order of certiorari were if I were satisfied that there was a genuine miscarriage of justice in the preliminary examination carried out by the Respondent, or to put the matter in the more usual form, if I were satisfied that the preliminary examination conducted by the Respondent was contrary to natural justice.
On this basis, the relief sought in that case was refused. I am satisfied that the judgments in the cases of Blakeney and Hastings still represent a correct statement of the law applicable in this jurisdiction when it is sought to quash by certiorari an order sending an accused person forward for trial before judge and jury, subject, however, to the qualifications referred to by Murnaghan J in the Batchelor case and by the present Chief Justice in Healy’s case, and subject also to the obligation now imposed on the District Justice to comply with the requirements of the Criminal Procedure Act 1967, in relation to the preliminary hearing. In my opinion the prosecutor has failed to make out a case for relief within the limits outlined above, and I should be very reluctant to extend those limits in any way.
I think there are good grounds for the apprehension expressed by O’Brien J in Blakeney’s Case, when he said:
It is perfectly alarming to think of the consequences, if in the common tendency, out of a desire to meet a case of flagrant wrong or injustice, to push the law into new and unknown applications, such a fatal invasion of it were allowed. The precedent, as the learned Attorney-General could not but foresee, would be applied to other and different cases … All that money and influence, and power and false art could do under the urgency of the strongest of human motives—the desperation of a struggle for reputation, liberty or life—would be brought to bear, to the last extremity, to avert or postpone, or prejudice prosecutions, until, in fact, the criminal law was choked in the fountain. (at p. 176)
12. The last matter relied on by the prosecutor in his grounding affidavit can be disposed of without delay. Under the provisions of the Criminal Procedure Act 1967, s. 7(4) the District Justice was required, in the course of the preliminary examination to ask the accused if he had anything to say in answer to the charge and the reply to that question had to be duly recorded. This provision was repealed by the Criminal Justice Act 1984 s. 23(3)(b), and accordingly has no application in the present case, save, perhaps, ‘to choke the criminal law in the fountain’.
For the reasons stated above I have come to the conclusion that the application by the prosecutor to have the conditional orders of certiorari and prohibition made absolute should be refused, and I propose instead to discharge the conditional orders and allow the cause shown by the respondents.
People (DPP) v Fahy
[2007] I.E.C.C.A. 102
udgment of the Court delivered on the 28th day of November 2007 by Finnegan J.
The applicant was convicted of the following offences:-
1. Obtaining by false pretences contrary to section 2 of the Larceny Act 1916 as amended by the Larceny Act 1990.
2. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
3. Attempted theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
4. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
5. Attempting to make a gain or cause a loss by deception contrary to section 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and common law.
6. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
7. False accounting by production or making use of a document contrary to section 10(1)(c) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
He was sentenced to twelve months imprisonment on each count, the sentences to run concurrently. In respect of the matters listed at 1, 2 and 3 he was in each case fined €25,000.
The notice of appeal sets out 31 separate grounds. However the grounds may be summarised as follows:
1. The prosecution in breach of the Criminal Justice (Miscellaneous Provisions) Act 1967, sections 4B, 4C and 4D as inserted by the Criminal Justice Act 1999, section 9 led evidence not contained in the book of evidence or statement of any further evidence.
2. That the evidence so led was not probative and was prejudicial to the applicant.
3. The applicant notwithstanding a request was not given sight of a document contained in a list of further exhibits having requested sight of the same.
The Criminal Justice (Miscellaneous Provisions) Act 1967 as amended insofar as is relevant provides as follows:-
“4B(1) Where the prosecutor consents to the accused being sent forward for trial, the prosecutor shall, within forty two days after the accused first appears in the District Court charged with the indictable offence or within any extension of that period granted under subsection 3, cause the following documents to be served on the accused or his solicitor, if any:
(c) a list of the witnesses the prosecutor proposes to call at the trial;
(d) a statement of the evidence that is expected to be given by each of them;
(e) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992 and
(g) a list of the exhibits (if any).
4C(1) At any time after service of the documents mentioned in section 4B(1) the prosecutor shall cause the following documents to be served on the accused or his solicitor, if any:
(c) a statement of any further evidence that is expected to be given by any witness whose name appears on the list already served under section 4B(1)(c);
(g) a list of any further exhibits.
4D The accused shall have the right to inspect all exhibits mentioned in the list of exhibits served on the accused or his solicitor under section 4B or 4C.”
The Book of Evidence contained a statement of the evidence of John Morgan who held the position of Director of Services with Galway County Council. In his statement of evidence he deals briefly with an interview with the applicant on the 10th March 2004. His statement contains the following passage:-
“Again at the conclusion of the meeting I made notes of the interview that I had with Councillor Fahy which I dated 20th March 2004. On today’s date 20.7.04 I have handed over to D/Garda Glynn a certified copy of these notes marked “J.M.2” I will produce and identify the original notes in court when and if required to do so”.
The notes to which he referred were not included in the list of exhibits contained in the Book of Evidence. However by way of disclosure the entire Garda file was furnished to the applicant’s solicitors on the 3rd day of May 2006 and contained in the same was a typed copy of the notes to which he referred.
The trial commenced on the 27th February 2007. On that morning a list of additional exhibits was served which contained an item described as
“Notes of meeting between John Morgan and the accused Michael Fahy, prepared by John Morgan and referred to at page 36 of the Book of Evidence.”
Immediately after service junior counsel for the applicant asked for copies of all documents contained in that list but specifically asked for the notes of the meeting. By the time Mr Morgan came to give evidence on the 1st March 2007 this request had not been complied with. Very early in Mr Morgan’ evidence he was asked by counsel for the prosecution and replied as follows:-
“Q. Did you take a note of this meeting with Councillor Fahy?
A. I wrote up a note of the meeting subsequently, yes.
Q. How long afterwards?
A. Within a couple of days.”
The effect of this, as is accepted before this court by counsel for the respondent, is that the notes were not admissible in evidence either as a contemporaneous note or under Part II of the Criminal Evidence Act 1992. Nonetheless counsel for the prosecution continued to elicit from the witness information contained in the notes but not contained in the statement of that witnesses’ evidence included in the Book of Evidence. Relevant to the applicant’s submission are the following questions and answers:-
“Q. Did he make any comment about Mr Byrne, the fencer?
A. Councillor Fahy indicated that Mr Byrne had tried to do him. That he was only a crook, I think was the words he used, that he had given him a price when he asked him for a price for doing the work, he had given him a price of €12,000, but that subsequently Mr Fahy had spoken to somebody who knew something about fencing and told him that it was only worth €2,500.
And
“Q. Did you also indicate to him that the Manager was of a mind that the matter could be resolved without going through the Gardai?
A. I did. I told him that the Manager following on from receipt of my report and discussing that it had decided that if the monies that the Council was out of pocket was reimbursed and a penalty paid that he would review the matter. At the time this decision was made by the manager, Donal O’Donoghue, he was on I think his way to Australia at the time. He was going to Australia.
Q. Who was going?
A. Mr O’Donoghue was going to Australia for St. Patrick’s Day and he indicated prior to departure if the matter was resolved and the parties were willing to pay back the money, that he would consider the matter when he came back from Australia.
Q. What amount of penalty?
A. €3,000 was the figure.
Q. Was the figure mentioned?
A. Yes.
Q. When you explained all that to Councillor Fahy, what did he say to you?
A. Initially he was going to ring Tom Byrne and discuss with him about who would pay or how it would be paid. I actually gave him Tom Byrne’s phone number, mobile phone number from an invoice that was there or a copy of the invoice and we continued to discuss the matter and Councillor Fahy, he didn’t ring him and then he said to me, he says, ‘sure, I will pay the whole lot myself, the €10,000’.
Q. Did he give any reason why he said he would pay the whole lot?
A. All he said to me was ‘It is nothing really. It’s only a small amount of money’, he says, and qualified it by saying that he, ‘sure, I have been offered €3.8 million for the field in Ardrahan’.”
At that point counsel for the applicant intervened on the basis that none of this was contained in the Book of Evidence. The court then adjourned for lunch and immediately following lunch senior counsel for the applicant applied to have the jury discharged relying on the two portions of Mr Morgan’s evidence set out above on the grounds that the applicant had no notice of the same, that the information elicited by the questioning was of no relevance, of no probative value and prejudicial. While the notes referred to by Mr Morgan were mentioned in his witness statement they were not an exhibit until the first day of the trial when the list of further exhibits was served. Senior counsel for the applicant was unaware of the notes or their contents until furnished with the same over lunch. The notes had been disclosed which indicated to the defence that they would not be part of the prosecution case. The witness statement was highly misleading as it suggested that the statement was a contemporaneous note while clearly it was not.
In responding to the applicant’s submission counsel for the prosecution accepted that he led evidence from the notes. He accepted that the portions which he led were not probative but maintained that they were not prejudicial.
Having considered the application the learned trial judge refused the same but made it clear that if at the conclusion of the prosecution case the applicant’s counsel felt there was merit in renewing the application they were at liberty to do so. This was the correct approach to adopt where the application was being refused: see People (D.P.P..) v O’Callaghan [2001] 1 I.R. 584 at 598.
A necessary precondition to the admission of evidence in criminal proceedings is that it must be relevant to the issues in the proceedings. In People (D.P.P.) v Ferris unreported, Court of Criminal Appeal, June 10th 2002, Fennelly J. said:
“The common law has acted on one fundamental principle of proof since early modern times and since the abandonment of the primitive methods of proof of Saxon times. This rule has operated for centuries and is that the only evidence which is admissible at a criminal trial whether for or against the guilt of the accused is evidence which is relevant. This means evidence which tends to prove or disprove whether the accused committed the act with which he is charged.”
Again in The People (D.P.P.) v Shortt (No. 1) [2002] 2 I.R. 686 Hardiman J. at 693 said:-
“All evidence must be relevant to a matter in issue as the first condition of admissibility. There are exceptions to the admissibility of relevant evidence, but irrelevant evidence is never admissible: see Cross and Tapper on Evidence (9th edition) at pp 55 and 56.”
The effect of the introduction of inadmissible evidence will depend upon the circumstances of the particular case. One relevant factor is whether an objection is raised at the time: People (D.P.P.) v Cronin [2003] 3 I.R. 377 at 390-2. In the case of a trial by jury it may be possible for the trial judge to cure any prejudice arising by giving appropriate directions to the jury. If, however, the evidence is so prejudicial that it creates a real and substantial risk of an unfair trial which cannot be avoided by any directions that might be given to the jury then it is appropriate to discharge the jury: People (D.P.P.) v Marley [1985] I.L.R.M. 17. There is, of course, always the danger that any attempt by the court to undo the damage done by the introduction of inadmissible evidence by way of a direction to ignore the same may be counterproductive and would only draw the jury’s attention to that evidence and indeed this was adverted to by senior counsel for the applicant in his submission to the trial judge. On the other hand the discharge of a jury should be the last resort and accomplished only in the most extreme circumstances: juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant or should not have been given before them; see Dawson v Irish Brokers Association, unreported, Supreme Court, November 6th 1998, per O’Flaherty J.
A special feature of the present case is that there was a non-compliance with the requirements of the Criminal Justice (Miscellaneous Provisions) Act 1967. Had a copy of the notes been exhibited in a timely manner and had a copy of the same been furnished to the defence or inspection proffered as required by the Act it would have been possible for the defence to object to the evidence being given on the grounds of irrelevance. This is not a case in which the inadmissible evidence was unsolicited by the prosecution but was blurted out by the witness unprompted. Had the voir dire taken place in advance of the evidence being given rather than after it had been given the evidence would not have been given. What occurred is a direct result of the non-compliance by the prosecution with the requirements of the Act. Once the application to the learned trial judge to discharge the jury was refused, the applicant’s senior counsel was faced with a dilemma. He could cross-examine the witness with a view to minimising the effect of the evidence but thereby risk reinforcing any prejudicial view which the jury might have formed as a result of hearing the same. He could ask the learned trial judge to direct the jury in relation to the evidence. Alternatively he could remain silent on the passages of evidence in the hope that the jury might not attach any significance to the same. He adopted the last mentioned course and neither he, the prosecuting counsel, or the learned trial judge made any further reference to the passages of evidence which are quoted above. Be the decision made right or wrong it cannot be criticised he having been taken by surprise and it was an appropriate exercise of senior counsel’s discretion having regard to the position in which the applicant had been placed by the evidence being led.
Having regard to the foregoing it is necessary to consider whether the passages of evidence in question were prejudicial and if so were they prejudicial to the extent that the jury ought to have been discharged. On behalf of the applicant it is submitted that the evidence of the applicant characterising Mr Byrne as a crook was corroborative of submissions made by the prosecution to the jury that the applicant sought to cast responsibility on others and blame others for his wrongdoing. Thus in his closing speech counsel for the prosecution said:-
“Councillor Fahy has tried every trick in the trade to wriggle out of his predicament and in a last desperate attempt to do so, he has tried to blacken the reputations of the investigating Gardai in this case, that is, Detective Reidy, Sergeant Coppinger and Detective Glynn.”
In relation to the evidence of the €3.8 million offer for a field it is contended that this is highly prejudicial in the current climate. The evidence given was an incomplete statement of what was in the notes and made no mention that the field had been inherited. This must, it is argued, have left the jury under the impression that the applicant who is a small farmer with a small insurance business as well as a County Councillor had amassed great wealth. In the current climate and particularly having regard to the applicant’s role as a County Councillor the jury might well have inferred that this wealth apparently so disproportionate to his income and station in life was not acquired honestly. Against the background of allegations of improper conduct against County Councillors before Tribunals such an inference from wealth without explanation might well be drawn. It is particularly unfortunate that this risk was created by non-compliance by the respondent with the Act of 1999. The name by which the applicant is popularly known and which it is likely was known to some at least of a Galway jury could well exacerbate the prejudice having regard to the nature of the offences with which the applicant is charged.
In the circumstances of this case the court is satisfied that the introduction of inadmissible evidence in the manner in which it occurred created a real and substantial risk of an unfair trial. The apprehension of the applicant’s senior counsel that to seek to remedy the situation by cross-examination and a direction to the jury might exacerbate the position was not unreasonable. Such course might well have proved counterproductive in emphasising the significance which could be attached to the evidence given. The learned trial judge, in the circumstances of this case, ought to have discharged the jury.
In these circumstances the court grants the applicant leave to appeal and treats the hearing of the application as the appeal and allows the appeal and directs a retrial.
Director of Public Prosecutions v Brennan
(McGrady, Notice Party), unreported, High Court, August 10, 2005
Judgment of Mr. Justice Murphy dated the 10th day of August, 2005.
1. Application
The Director of Public Prosecutions (DPP) applied for an order of certiorari by way of application for judicial review to quash the order of the respondent District judge sending Mr. McGrady, the notice party, forward for trial to the Circuit Court on two indictable offences and four summary offences.
The DPP also sought an order of mandamus by way of application for judicial review requiring the respondent to determine an application to send the notice party forward for trial to the Circuit Court on the indictable charges only.
An order extending time for the bringing of the application for leave to apply by way of judicial review was granted by Mr. Justice Quirke on 27th July, 2004.
The grounds on which the relief was sought were:
– the respondent erred in law in sending the notice party forward for trial on six charges, four of which related to offences which are triable in a summary fashion only;
– while s. 6 of the Criminal Justice Act, 1951 permits the addition of summary charges to an indictment once an accused person has been validly sent forward for trial there is no foundation in law for sending an accused person forward for trial on summary as well as indictable charges;
– the jurisdiction of the trial court to enter upon a trial on any charge depends upon a valid return for trial of the accused.
2. Evidence
The affidavit of Aonghus Dwane, a solicitor of the Office of the Chief Prosecution Solicitor, verified the statement of grounds, referred to the six charges and the book of evidence prepared in accordance with s. 6(1)(a) of the Criminal Procedure Act, 1967.
He says he was advised by counsel that while s. 6 of the 1951 Act made provision for the addition of summary charges to an indictment once a person has been sent forward for trial, it was contrary to law to send an accused person forward for trial on summary charges.
He said that the matter was listed before the Circuit Criminal Court in Dundalk on 14th January, 2004. Following legal argument in relation to which objection was taken by the notice party for the order sending him forward for trial on the ground that summary as well as indictable offences were included, the Circuit Court judge removed the case from the list.
Mr. Dwane said that he was advised that the appropriate manner with which to address the problem was to apply to have the order sending the notice party forward for trial quashed by way of judicial review. The effect of that order would be to require the District judge to determine an application to send the notice party forward for trial on the indictable charges only, leaving the summary charges standing adjourned in the District Court.
He says that papers were received by the Chief State Solicitor on 23rd March, 2004 and that it was not apparent from those papers which was the date for return for trial which it was thought mistakenly that the date was January, 2004. The matter was overlooked due to pressure of work in the office in the period from 23rd March, 2004 to 27th July, 2004, when the application was made for leave for judicial review.
The charges related to incidents on 18th August, 2002, including the unlawful taking of possession of a car without the consent of the owner and driving that car in a manner which was dangerous to the public whereby it caused serious bodily harm to the owner.
3. Statement of opposition
The notice party pleaded that the application was not made promptly or in accordance with Order 84, rule 21(1). Leave to apply was granted on 27th July, 2004, ten months after the making of the order returning the notice party for trial which was outside the period of six months.
There were no facts relied upon in the statement of grounds or verified in the affidavit which could be construed as “good reason” for extending the period within which an application might be made.
The allegations against the notice party related to an incident alleged to have occurred early in the morning of 18th August, 2002. If the application for judicial review were successful, the earliest trial date would be in January, 2005. The incident alleged to have occurred took place when some of the witnesses, including the alleged victim, had drink taken. The delay, therefore, in bringing the matter on for hearing would be prejudicial to the notice party.
4. Replying affidavit
The replying affidavit of Niall Lavery, solicitor for the notice party, referred to the matter first coming into the District Court on 14th June, 2003, following which a book of evidence was prepared and served on the notice party. On 18th September, 2003 an order was made directing the notice party be returned for trial before the Circuit Court on 7th October, 2003. It should then have been apparent that there was a defect in the notice of trial.
The matter was adjourned from that date to 14th January, 2004, when the case was removed from the list. There was no justifiable explanation for the delay from 18th September, 2003 to the date of the ex parte application on 27th July, 2004. The delay has unfairly prejudiced the notice party such as to render it impossible for him to receive a fair trial.
5. Submissions of the Applicant
5.1 Mr. Tom O’Malley, Barrister-at-law on behalf of the DPP, referred to the amendment to the Criminal Procedure Act, 1967, by virtue of s. 4A(1) of the Criminal Justice Act, 1999. That provides for the accused to be sent forward for trial as follows:
“4A.-(1) Where an accused person is before the District Court charged with an indictable offence, the court shall send the accused forward for trial to the court before which he is to stand trial (the trial court) unless –
(a) the case is being tried summarily
(b) the case is being dealt with under s. 13, or
(c) the accused is unfit to plead.”
The reference to the case being dealt with under s. 13 is to minor offences capable of being tried summarily.
Sub-section (2) of the amendment provides that the accused shall not be sent forward for trial under sub-s. (1) without the consent of the prosecutor and where a prosecutor refuses, then the District Court must strike out the proceedings against the accused in relation to that offence. (sub-s. (3))
5.2 Counsel referred to Nevin v. Judge Timothy Crowley and the D.P.P. [2001] 1 I.R. 113. In that case the applicant had been brought back to court after conviction when he had said to the prosecuting garda, on leaving the courtroom, “I knew you would get me and you got me”. The garda brought the applicant back to court and gave evidence as to what the applicant had said. The District Judge made an order imposing a six month sentence on the applicant and also disqualified him from driving for two years. The applicant contended that his solicitor and counsel did not have adequate opportunity either to cross-examine the garda on this evidence or to make submissions in mitigation. He sought certiorari and claimed a want of fair procedures in that a substantial increase in a custodial sentence was imposed in the absence of his legal representatives and that the District judge had taken material into account which was not relevant to the charge.
The High Court granted an order of certiorari quashing the conviction and refused to make an order remitting the order to the District Court on the basis that the applicant would be entitled to plead autrefois acquit where the matter remitted.
The DPP appealed to the Supreme Court which affirmed the order of the High Court. The Supreme Court held that the mere existence of a right to appeal could not be an obstacle to the grant of an order of certiorari. The District judge should have expressly asked the applicant whether he wished to consult his legal advisers, or should have invited those advisers to make submissions to him. In failing to do this there was failure to respect the fundamental principle of a fair hearing. Having regard to the breach of constitutional justice, the acquiescence of the prosecution, the passage of time and the nature of the offence, the High Court was correct in exercising its discretion to refuse to remit the matter to the District Court.
5.3 Counsel for the DPP in the present case submitted that, notwithstanding the delay, there was sufficiently good reason, at leave stage, for granting the remedy sought, there had been some uncertainty as to the appropriate manner of dealing with a number of cases about the same time and in the same geographical area. An unsuccessful attempt to apply the slip rule was made. It was submitted that the appropriate date for time to run was the date on which the Circuit Court judge removed the case from the list on 14th January, 2004 and the delay to 27th July, 2004 was explained by the difficulties that had arisen in a number of other cases and the pressure in the office of the Chief Prosecution Solicitor.
Counsel also submitted that the notice party faced serious charges and that there was no limitation period on the prosecution of indictable offences. Moreover, the notice party had not been able to point to any specific ground on which he would be prejudiced by reason of any delay in the processing the judicial review proceedings. The alleged ground of possible prejudice was not something which could be attributed in any meaningful way to the delay in the judicial review proceedings.
6. Submissions of the Notice Party
Mr. Roderick O’Hanlon S.C. submitted that the application to extend the time for leave was misleading insofar as it did not refer to the matters being before the Circuit Court in October, 2003. The issue was clearly alive to the DPP at that stage. Good reasons as required by Ó Domnhail v. Dun Laoghaire Corporation posited an objective test which would explain delay and offer a reasonable explanation therefor.
He referred to Dawson v. District Justice William Hamill [1991] 1 I.R. 213, per Finlay C.J. in relation to remittal to the District Court for reconsideration. The Chief Just held, at 215, that:
“The main grounds on which this part of the appeal were brought are that the remittal was unfair and onerous to the plaintiff by reason of the delay in proceeding with the case in a proper manner; that it is a long time since the happenings of the events and, on the particular facts, the matter falls to be dealt with too long after the alleged occurrence. Secondly it is objection that, by proceeding with the case in an improper manner, the prosecution had brought about a situation in which it is fully aware of the plaintiff’s defence. The third objection is that, if the case is remitted, the plaintiff’s costs of the hearing in the District Court which has already taken place and extended over two days, would have been entirely thrown away. Finally, it was submitted that the plaintiff has not in any way contributed to the incorrectness of the procedure which caused the quashing of the order of the District Court and on the contrary opposed the incorrect procedure which led to that.
I have carefully considered all these submissions and I have considered the conditions on the other side; the question which really remained as the major question in the District Court was of course this question not only of what occurred in the course of the trial but whether, having regard to the provisions of the Road Traffic Act, 1968, and the requirements for notice or awareness immediately or very shortly after the happening of an incident, it was proper that the plaintiff should have been tried. Bearing in mind all these considerations and in the interest of justice, I am satisfied that the discretion should have been exercised against a re-trial or a continuance or a remittal of the trial. In these circumstances I would allow the appeal and would reverse the order, in that regard, of the High Court. The other matters carefully and fully set out in the judgment of the High Court judge are, of course, undisturbed by this order.” (at 216)
7. Decision of the Court
7.1 The first issue to be determined by the court relates to the application being made outside the time limited by the Rules of the Superior Courts, that is six months from the date of the decision in respect of an order for certiorari.
The DPP had sought relief to extend time for the bringing of the application for leave to apply. Leave to apply was granted for all of the reliefs including the order extending time.
Application for review was made on 27th July, 2004. This was without the six month period from the date that the matter was taken out of the list on 14th January, 2004. It was over nine months from the date of the order returning for trial on 18th September, 2003. The date of the return for trial was 7th October, 2003.
The notice party complained that the full facts were not disclosed in the affidavit grounding the application. In particular, the notice party complained that no reference was made to the matter being before the Circuit Court.
The affidavit of Aonghus Dwane, sworn on 27th July, 2004, refers, at para. 6, to the matter being listed before the Circuit Criminal Court in Dundalk on 14th January, 2004. Mr. Lavery’s replying affidavit of 8th October, 2004 says, at para. 5, that the matter was first returned to the Circuit Court sitting in Dundalk on 7th October, 2003 and was adjourned by the presiding judge to the next sessions, being the sessions that commenced on 14th January, 2004. He further says that there was no justifiable explanation for the delay from 18th September, 2003 to the date of the ex parte application on 27th July, 2004.
There is, of course, an explanation given in the affidavit of Mr. Dwane that the papers were received by the office of the Chief Prosecution Solicitor on 23rd March, 2004, and that it was not apparent from same which was the date of the return for trial. It was mistakenly thought that the applicant had been returned for trial only in January and that the matter was overlooked due to pressure of work in the office.
It is the view of the court that this explanation was justifiable.
It does not seem that the Circuit Court was misled with regard to the date for the return for trial.
The court is of the view that the notice party has not shown a degree of prejudice which would deprive the applicant of an extension of time.
Accordingly, the court will extend the time for the making of the application.
7.2 There is an onus of the District Judge to see that an accused is not subjected to the risk of injustice (Henchy J. in The State (Healy) v. Donoghue [1976] I.R. 325 at 349).
It does not seem to this court that the decision of the learned Circuit judge to remove the case from the list following legal argument over jurisdiction exposed the notice party to any risk of injustice, nor was a want of fair procedure.
I have carefully considered Nevin v. Judge Timothy Crowley [2001] 1 I.R. 113. The circumstances of that case differ substantially from those pertaining to the present case. There was no want of fair procedures, no absence of opportunity to consult with legal advisers or to cross-examine prosecution witnesses.
The applicant seeks to quash the respondent’s order of 18th September, 2003 of which charges 1 to 4 related to summary offences. Section 6 of the Criminal Justice Act, 1951 does not permit an accused person to be sent forward for trial on summary charges.
In the circumstances the applicant is entitled to an order of certiorari as sought in para. (i) of the motion herein.
The remaining charges are indictable. The applicant is entitled to an order of mandamus in relation thereto as sought in para. (ii) of the motion herein.
Cruise v O’Donnell
[2007] I.E.S.C. 67
JUDGMENT of MR. JUSTICE FENNELLY delivered the 20th day of December 2007
1. This appellant, who is charged with a number of serious drugs offences, wants to have the Circuit Court determine in advance of his proposed trial whether a search warrant which was used to obtain the evidence against him was valid and to order that the charges be dismissed. Whether this can be done depends on the interpretation of provisions of section 9 of the Criminal Justice Act, 1999, which inserted a new section 4E into the Criminal Procedure Act, 1967 (“the Act of 1967”). That Act ended the preliminary examination procedure in the District Court. The trial Court, rather than the District Court, may now be asked to decide whether there is a sufficient case to answer. The appellant failed in his application before the first-named respondent.
2. The Appellant brought the matter before the High Court in an application for Judicial Review. His application was dismissed by Quirke J in a judgment delivered on 8th December 2004.
Procedural history
3. Seven charges have been laid against the Appellant. They all relate to alleged possession of controlled drugs at premises in Clondalkin, Dublin 12 on 20th June 2002. One charge alleges possession for sale or supply of drugs to a value of €13,000 or more contrary to section 15A (as inserted by section 4 of the Criminal Justice Act, 1999) and section 27 (as amended by section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977. I will refer to this as the section 15A charge.
4. The Appellant was charged on 18th April 2003 before the District Court. He was duly served with a book of evidence and returned for trial to the Dublin Circuit Criminal Court, where his case has been adjourned from time to time.
5. Counsel for the Appellant applied on 30th March 2004 to have the case against him dismissed pursuant to section 4E of the Act of 1967. According to his affidavit in the present proceedings, the Appellant contended:
“The Book of evidence fails to disclose any, or any admissible evidence to the effect that the drugs the subject-matter of the within prosecution, were lawfully seized by way of lawful authority by the investigating members of An Garda Siochana.
1) The Book of evidence herein fails to disclose any admissible evidence against the accused.
2) The search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises sought to be searched by them and was therefore invalid.”
6. The application was heard before the first-named respondent. Counsel for the appellant submitted that the previous procedure had been radically altered by the Act of 1999 and that the judge at the court of trial now has jurisdiction to determine the validity of a search warrant in an application by an accused person to have charges against him dismissed. According to the affidavit, counsel also submitted that “the procedure expanded the previous legislation by introducing the possibility of adducing oral evidence,” and that the trial court was “entitled to embark on the hearing of an application to dismiss where a point of law or fact is raised by an accused which if successful, would dispense with the requirement of a jury to determine the guilt or innocence of an accused.” (emphasis added).
7. Having heard arguments which largely prefigure those advanced in the High Court and before this Court, the first-named respondent ruled on 11th May 2004 that the validity of search warrants was to be determined at the trial and could not be the subject-matter of an application to dismiss pursuant to section 4E of the Act of 1967.
8. The Appellant obtained leave from the High Court (McKechnie J) to apply for judicial review of the decision of the first-named respondent. The central ground for the application was that the first-named respondent was wrong in holding that section 4E precluded a determination as to the validity of a search warrant.
9. Quirke J dismissed the application for judicial review in a judgment delivered on 8th December 2004. He held that section 4E was “intended to enable an accuse person to make an application to have charges preferred against him dismissed where the evidence upon which the State intends to rely is so weak that there is no probable cause to believe that the accused might be guilty.”
He continued:
“It was clearly not intended that applicants pursuant to s. 4E would be entitled to challenge evidence disclosed in the Book of Evidence on grounds of credibility or weight. I am satisfied also that it was not intended that it should be challenged on grounds of admissibility. Such applicants (and the court hearing the applications) should take the State’s case as disclosed in the Book of Evidence at its highest point.
The admissibility of particular evidence will invariably require to be determined by the trial judge during a criminal trial. In determining admissibility the trial judge may require to hear evidence by way of a voire dire or to exercise discretion judicially as to the admission of particular evidence. The validity of a warrant may depend upon the state of mind of the person applying for or issuing the warrant. Enquiry into such matters cannot be properly conducted in isolation from all of the other evidence to be adduced in a criminal trial. It is undesirable that specific findings of fact or law should be made in advance of a criminal trial.
In hearing an application pursuant to s. 4E of the 1967 Act (as amended) the trial court should consider the evidence upon which the State intends to rely on the assumption that it will be adduced lawfully and properly and as outlined in the Book of Evidence. The court must then decide whether, if so adduced, it discloses a ‘prima facie’ case against the accused.
If so, the accused should be sent forward for trial. If not then the accused person should be discharged.”
Statutory provisions
10. Part III of the Act of 1999 abolished the former system of preliminary examination in the District Court, as it had existed since the passing of the Act of 1967. Under the amended statutory regime, the District Court sends an accused person forward for trial to the appropriate court of jurisdiction. Section 4A of the Act of 1967, inserted by section 9 of the Act of 1999, provides that where “an accused person is before the District Court charged with an indictable offence, the Court shall send the accused forward for trial to the court before which he is to stand trial (the trial court)……”
Section 4E, inserted by the same section needs to be cited in its entirety:
4E.—(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.
(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than 14 days before the date on which the application is due to be heard.
(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.
(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.
(5) (a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.
(b) In paragraph (a) ‘oral evidence’ includes—
(i) any evidence given through a live television link pursuant to Part III of the Criminal Evidence Act, 1992 , or section 39 of the Criminal Justice Act, 1999, or
(ii) a videorecording of any evidence given through a live television link pursuant to that Part or section in proceedings under section 4F.
(6) Where the trial court is satisfied that it is in the interests of justice that any document required under this Part to be served on the accused or his solicitor be served at the hearing of an application under this section—
(a) the prosecutor shall serve the document on the accused or his solicitor, if any, at the hearing, and
(b) the court may, if it considers it appropriate to do so, adjourn the hearing for that purpose.
(7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal.
(8) On an appeal under subsection (7), the Court of Criminal Appeal may—
(a) affirm the decision of the trial court, or
(b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.
11. It is appropriate, at this point, to recall that section 5 of the Act of 1967, repealed by the Act of 1999, had provided that, where an accused person was charged before the District Court with an indictable offence, the judge was to “conduct a preliminary examination of the charge in accordance with the provisions” of the relevant part of the Act. Section 8(1) of that Act provided:
“If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.”
12. Subsections (2) and (4) provided, respectively, for cases where “some indictable offence other than that charged” and cases where only a summary offence is disclosed. Subsection (5) provided:
“If none of the foregoing provisions applies, the justice shall order the accused to be discharged as to the offence under examination.”
Submissions for Appellant
13. Mr Michael O’Higgins, Senior Counsel, informed the Court that the Appellant wishes to challenge the legality of the search warrant which was the means used by the Garda Síochána to obtain the evidence against him. He said that, if he succeeds in that objective, he will be able to secure the exclusion of the only evidence against him disclosed in the book of evidence, and there would not then be a sufficient case to put the accused on trial. For that purpose, he would adduce evidence, on the hearing of the application under section 4E, that the premises whose address was on the warrant was not the premises which was in fact searched.
14. The Appellant submitted that, as the court of trial has now the function of conducting the preliminary examination, section 4E does not limit the scope of the investigation that the trial court can enter into in determining the question as to whether an accused person has a case to answer. As the procedure for preliminary examination now vests in the trial court, that court can decide on the validity of search warrants and dismiss any charge pursuant to Section 4E prior to the commencement of a trial before a judge and jury.
Moreover, whether a warrant is legally issued or not is a matter of law. It would be decided at trial, in the absence of the jury.
15. Section 4E permits the admission of oral testimony (subject to the leave of the trial judge). The appellant submits that the intention of the Oireachtas in inserting this section was to circumvent the many voir dire applications that occur during the course of trials. An applicant under section 4E need not rely solely on the alleged facts as disclosed in the book of evidence, but can call witnesses to substantiate the application that he or she is making.
16. The appellant also relied on the sentencing regime governing those convicted of section 15A offences. A person so convicted is subject to a minimum period of imprisonment of 10 years, unless the Court is satisfied that, inter alia, the accused pleaded guilty and indicated an intention to do so at an early stage. Thus the timing of the plea of guilty is critical. Where a person faces a mandatory minimum sentence because he fails to derive a benefit from an early plea, it naturally diminishes the resolve to contest a trial because he runs the risk that such decision would affect his sentence, if convicted.
17. The written submissions filed on behalf of the appellant lay particular emphasis on the risks, in the context of section 15A, of relying on purely technical defences. Section 15A of the Misuse of Drugs Act, it is submitted, has huge implications for an accused person who intends to rely on a technical defence.
Submissions of Respondents
18. The Respondents submit that questions of admissibility of evidence are determined by the trial judge in the context of the evidence that he or she has heard and are determined at the time when they arise in the course of the evidence.
19. The appellant claims that all questions of law and fact that would be ruled on in the voir dire of a criminal trial that would result in the charges being dismissed should be capable of being determined in the course of a motion to dismiss. If the appellant is correct, motions to dismiss could presumably canvas all types of issues such as the legality of detention or the admissibility of confessions. This could fundamentally alter the manner in which criminal trials have traditionally been conducted in this jurisdiction. The drafters of the 1999 Act did not intend to effect such a fundamental change in the nature of the criminal process. Such change could only be effected by legislation duly passed by the Oireachtas.
20. The advance determination of such issues would not necessarily assist the administration of justice. If the application pursuant to section 4E were not, contrary to the appellant’s submissions, dismissed because the contested evidence was ruled admissible, that would not necessarily bind the trial court. The accused person would be entitled to run the entire issue of admissibility for a second time at trial, so that there would be no saving. Reference was made to the decision of this Court in Lynch v Moran [2006] 3 IR 389 to the effect that issue estoppel has no role in Irish criminal proceedings.
21. The fact that s 4E provides that oral evidence can be heard “if it appears to the trial court that such evidence is required in the interests of justice” cannot be used as a basis for suggesting that the section intended to alter the fundamental nature of a criminal trial.
22. Mr Paul Anthony McDermott submitted at the hearing of the appeal that the judge should consider the book of evidence, taking the prosecution case at its highest, and assuming the evidence is admissible. He submitted that section 4E constituted the transplantation of the old procedure from the District Court to the court of trial.
23. The Respondents relied on the decisions of Hamilton J, as he then was, in Byrne v Grey [1988] IR 31 and Berkeley v Edwards [1988] IR 217 and that of McCracken J in DPP v Windle [1999] 4 IR 280. Mr McDermott also suggested that the proposal for advance determination of issues of admissibility would be inconsistent with the principle of the unitary nature of a criminal trial as laid down in a number of authorities. The People (Attorney General) v McGlynn [1967] IR 232, Corporation of Dublin v Flynn [1980] IR 357 and DPP v Special Criminal Court & Paul Ward [1999] 1 IR 60 were cited.
Considerations and conclusions
24. Before turning to the interpretation of section 4E, it is essential to identify the precise parameters of what the appellant was asking the first-named respondent to decide. He describes the “grounds” of the application for dismissal of the charges as being that:
a) the “book of evidence herein fails to disclose any admissible evidence” and
b) the “search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises sought to be searched by them and was therefore invalid”.
25. Both of these arguments could have been advanced without any oral evidence. I am assuming here that the search warrant formed part of the book of evidence. It should be included as an exhibit served pursuant to section 4B, also inserted in the Act of 1967 by section 9 of the Act of 1999. Mr O’Higgins explained that the evidence to be called would be to the effect that that the premises whose address was on the warrant was not the premises which was in fact searched. Thus, very limited evidence would have sufficed and I will return to that. I cannot conceive that the proof of such a simple fact would present any practical difficulty.
26. At any rate, the appellant does not disclose that any such limited application was made to the first-named Respondent. Rather, he appears to have made a very much broader case that the section does not limit in any way the scope of issues that may be determined on an application pursuant to section 4E and that the court may determine issues, not merely of law, but of fact. Again, the appellant does not appear to accept any limits to that power.
27. I propose to consider the matter both on the broad basis advanced in argument and the narrower basis originally proposed before the first-named respondent.
The statutory context of the Act of 1999 provides the most cogent explanation of the scope and purpose of section 4E.
28. Part II of the Act of 1967 laid down rules for the preliminary examination of indictable offences in the District Court. Section 5 imposed the general obligation on a judge of that court. Section 6 dealt with the service of documents constituting what we call the book of evidence. Section 7(1) required the judge to consider those documents and “any deposition or statement taken in accordance with this section and any submissions that may be made by or on behalf of the prosecutor or the accused.” Section 7(2) permitted both the prosecutor and the accused “to give evidence on sworn deposition and also to require the attendance before the justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.” Section 8(1) provided:
“If the justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.” (emphasis added)
29. It is crucial, as I will explain, that the underlined words have been repeated in section 4E, though the sense is reversed: if “there is not a sufficient case to put the accused on trial…” the charge will be dismissed. (emphasis added). This makes no material difference to the meaning.
30. In DPP v Windle [1999] 4 IR 280 McCracken J considered the jurisdiction of a judge of the District Court to rule on the validity of a search warrant. The accused was charged with certain drugs offences. The prosecution intended to rely on evidence secured on foot of a search warrant. During the preliminary examination, the District Judge raised the question of validity of the warrant. The warrant did not state on its face that the person authorising it was a peace commissioner for the area which comprised the premises which were searched. The District Judge ruled the warrant invalid, the evidence inadmissible, and refused to return the accused for trial. The prosecution applied successfully for judicial review.
McCracken J held (see page 284):
“I am quite satisfied that it is not for a judge conducting a preliminary investigation to determine the validity or otherwise of a search warrant. This is a matter purely for the trial judge, to be determined by him on the evidence before him. If there had been no search warrant in the present case, then certainly the District Judge would have been justified in refusing to send the second respondent forward for trial, as there would have been no evidence to justify the search of his premises, but once a search warrant existed, in my view the question of its validity was one for the trial and not one for a preliminary investigation.”
McCracken J referred, at several points in his judgment, to the fact that further evidence could be called at trial. The decision in Windle is not necessarily conclusive for the purposes of the present application. It does not bind this Court and it is concerned with legislation which has since been repealed. It does, however, highlight the distinction between the decision that there is no sufficient case, a term carried over from the former regime, to put a person on trial and a decision at the trial itself on the hearing of all the evidence.
31. The broader case advanced on behalf of the appellant is, as submitted on behalf of the respondents, extremely far-reaching. The appellant submits that there is no limit to the type of preliminary issue that may be determined on a section 4E application and that the power of the court, on such application, extends to the resolution of disputed issues of fact.
32. I prefer the view of the respondents. This does not necessarily mean that the jurisdiction exercised pursuant to section 4E is identical with the former jurisdiction of the District Court to decline to send a person forward for trial. Some weight should be attached to the fact that the decision is being made by the actual trial court and to the faculty for the admission of evidence.
33. Nonetheless, it would require clear legislative wording to establish an entirely novel jurisdiction to determine, in advance of trial, disputed issues of law or fact. The appellant’s submissions would appear to open the door to determination, for example and probably most notably, of contested admissibility of incriminating statements or disputes about lawfulness of detention. It is notorious that trial courts may spend days or even weeks hearing evidence and cross-examination in the absence of the jury touching on alleged confessions made in garda custody. Hardiman J refers to these problems in the judgment he has just delivered. The parties have referred, in oral and written submissions, to various reports and recommendations for the introduction of procedures such as “plea and directions hearings.” Such procedures have generally been introduced by statute in other common-law countries. The power to make binding preliminary rulings on admissibility would clearly require statutory intervention. What is clear, however, is that no existing legislative authority exists for such procedures in this jurisdiction.
34. There is a further difficulty. If an issue of admissibility is determined not in favour of but against an accused person, it seems clear that such a determination would not be binding at the subsequent trial. This Court decided in Lynch v Moran [2006] 3 IR 389 that issue estoppel has no role in Irish criminal proceedings, either in favour of the prosecution or of the defence. In the absence of legislative provision, therefore, the proposed interpretation might lead to duplication of hearings on contested issues of admissibilituy and thus increase rather than reduce the burden on the courts. This seems to me to be sufficient to dispose of the Appellant’s argument based on convenience and economy.
35. The aim of section 4E was, so far as possible, to confer on the trial court a jurisdiction similar to that exercised by the District Court at the conclusion of the preliminary examination. The question for the court is the same as it was formerly for the District Court: is there a sufficient case to put the accused on trial? The application to dismiss can be made at any time after the return for trial. It is necessarily confined (subject to the evidence issue discussed later) to what is disclosed in what we loosely call the book of evidence. I agree with the view of Quirke J that the court should take the prosecution case at its strongest and assume that the evidence disclosed in the book of evidence is admissible. Put otherwise, is there a prima facie case?
36. Even without the possibility of admitting evidence at the hearing of the application, I would not necessarily approach the issue as strictly as McCracken J did in the Windle case. Some evidence, such as hearsay, may be self-evidently inadmissible. McCracken J himself accepted that, if there were no search warrant, in a case where one was required as a matter of law, the District Judge might hold evidence to be inadmissible and refuse a return for trial.
37. As originally presented, the appellant’s case appears to be of that narrower type. It was argued before first-named respondent that the “search warrant requested by and issued to the prosecuting Garda failed to include on its face the premises sought to be searched by them.” As I have mentioned, Mr O’Higgins phrased the matter somewhat differently: the premises actually searched was not that named in the warrant. In my view, the trial court could decide an issue of that sort on a section 4E application. It may be, however, that the Appellant’s submission depends on the establishment of some simple and uncontroversial fact. At this point, the jurisdiction to admit evidence becomes relevant.
38. The first point to note is that the primary rule is that evidence will not be admitted. That follows logically from the fact that the court is to decide whether a sufficient case is disclosed by the documents forming the book of evidence. However, section 4E provides that “oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.” I cannot accept that this provision is to be read as constituting a general power for the judge to admit evidence. The purpose of any such evidence must be to cast light on the issue which the court has to determine, namely whether, on the book of evidence, there is a sufficient case to put the accused on trial. Thus, evidence should be admitted to explain the identity of persons, places or things referred to in the documents. It is necessarily difficult to lay down comprehensive rules about this. The guiding principle is the interests of justice, but controlled by the context of the application and the circumstances of the particular case. Always, the issue is whether a sufficient case is disclosed.
39. The extended definition of “oral evidence” given in section 4E to include evidence given by live television link, pursuant to three specified statutory provisions, does not affect the interpretation I have adopted. I have already said that the section permits evidence to be given in the interests of justice in order to cast light on the question of whether there is “a sufficient case.” It is logical that that faculty should include evidence given by live television link where that is permitted. The first two specified provisions, section 39 of the Supreme Court of 1999 and Part III of the Criminal Evidence Act, 1992 (of which only section 13 is capable of applying) apply only to a person other than the accused. The third, section 4F, also inserted by section 9 of the Act of 1999, relates only to evidence given by deposition or live videolink in the District Court pursuant to an order made by the court of trial after the return for trial. In effect, therefore, that evidence becomes part of the body of evidence to be considered with the book of evidence in an application under section 4E, if available at that time.
40. I am satisfied that it was not intended that section 4E would provide an independent free-standing procedure for the determination of preliminary issues. It would make no sense to provide such a procedure merely for those cases where the accused contended that there was no sufficient case to put him on trial but not to cases where contested evidence formed part only of the material to be produced at trial. If the power existed, it would have to apply to all cases. Put otherwise, the court is not required to determine any such preliminary issue, where the documents disclose other evidence against the accused.
41. The foregoing view receives support from the fact that the prosecution may appeal the dismissal of a charge. No corresponding right is conferred on the defence. That is because, for the prosecution a decision to dismiss is final: it ends the prosecution. Not so, where the charge is not to dismiss the charges. The case proceeds to trial, all defence rights being preserved.
42. Thus, I would reject the broader argument advanced on behalf of the Appellant.
43. That conclusion does not, however, necessarily dispose of the instant case. The subject-matter of the application for judicial review is the decision of first-named respondent of 11th May 2004. According to the uncontradicted evidence of the Appellant the first-named respondent ruled that the validity of search warrants was to be determined at the trial and could not be the subject-matter of an application to dismiss pursuant to section 4E of the Act of 1967. In effect, he declined jurisdiction to consider the question of validity of the search warrant. His decision did not turn on whether he should admit evidence. I am satisfied that first-named respondent erred in reaching this conclusion. To be fair to the learned judge, he may have been faithfully following the decision of McCracken J in Windle. Nonetheless, he should have been prepared to consider arguments on the issue of validity as disclosed in the documents and, possibility, whether evidence should be admitted to explain the circumstances of the search or the identity of the premises though only in the sense that a ruling of invalidity would have the effect of ruling out all the evidence against the accused. I do not think it has been established that there is any overriding rule that the decision on whether there is a sufficient case to put a person on trial precludes the judge hearing such an application to dismiss from ruling that there is no case, where that involves concluding that the only evidence advanced against the accused is plainly inadmissible. An example would be where the only evidence was clearly hearsay. McCracken J acknowledged, in the passage cited, that, if there had been a search without warrant, where one was required, “certainly the District Judge would have been justified in refusing to send the second respondent forward for trial, as there would have been no evidence to justify the search of his premises…” Such a conclusion would necessarily imply a determination that the evidence was inadmissible. This jurisdiction will exist only in the clearest of cases. It does not mean that the first-named respondent, in this case, should have conducted any form of inquiry involving the resolution of disputed issues of fact. Furthermore, he must bear in mind that other evidence given at trial my cast further light on a particular matter. Interpreted in this way, section 4E would not entrench on the unitary nature of a criminal trial. For reasons I have given, it was not the intention of section 4E to confer jurisdiction to determine disputed issues of fact in advance of trial.
44. Finally, I wish to add that I do not accept that the interpretation of the section can be in any way influenced by the tactical considerations concerning the stage at which an accused person should plead guilty to a section 15A offence. The courts cannot take into account the risks an accused person runs by failing to enter a plea of guilty while he raises what the appellant’s submissions describe as a “technical defence.” Legislation imposing, in the public interest, a presumed minimum sentence of ten years imprisonment, subject to mitigation in the event of an early plea stands alone. It cannot affect the exercise of the power conferred on the trial court by section 4E or the interpretation of that section.
45. I would allow the appeal. I would make an order quashing the decision of the first-named Respondent of 11th May 2004. That will enable the trial court to resume consideration of the Appellant’s application for dismissal of the charges against him.
JUDGMENT of Mr. Justice Hardiman delivered the 20th day of December, 2007.
The applicant, Mr. Cruise, is a defendant in a pending criminal case in which he is charged with seven charges under the Misuse of Drugs Act. These include a charge under s.15A, as inserted by s.4 of the Criminal Justice Act, 1999, of the Misuse of Drugs Act, 1977. A particular submission, to be discussed below, arises out of that last mentioned charge. All of these charges relate to an alleged possession of drugs on the 20th June, 2002 at “Farrell O’Brien Premises, Killeen Road, Clondalkin, Dublin 12.”
This case was heard with another case, Phipps v. DPP because both cases raise questions relating to s.4E of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999.
Factual background.
Having been charged with the relevant offences, the applicant was eventually sent forward to the Dublin Circuit Court for trial.
On the 11th May, 2004, while the case was pending, the applicant issued a motion in the Dublin Circuit Criminal Court pursuant to the provisions of s.4E of the Criminal Procedure Act, 1967, seeking an order dismissing the charges against him on the following grounds:
“(a) That the book of evidence failed to disclose any or any admissible evidence to the effect that the drugs, the subject matter of the prosecution, was seized by way of lawful authority by the investigating members of An Garda Síochána and
(b) That the book of evidence failed to disclose any admissible evidence against the accused.
This motion was given a return date in the Circuit Court before His Honour Judge O’Donnell. This date was the 30th March, 2004. The learned Circuit Court judge decided that, prior to the determination of the issue before the Court he wished to hear argument as to his jurisdiction to hear the applicant’s application to dismiss. Having heard such argument he ascertained that the substantive issue raised by the appellant in support of his application to dismiss concerned the validity and efficacy of a search warrant issued to An Garda Síochána. The appellant sought to have the charges against him dismissed on the ground that the search warrant was invalid and did not properly describe or relate to the premises where the seizure alleged by the gardaí, according to the statements of evidence, took place.
The learned Circuit Court judge ruled that the issue of the validity of the warrant could not be the subject of an application pursuant to s.4E. He held that he had no jurisdiction to adjudicate on this issue and that it was a matter to be decided on before the trial judge during the course of the trial proper. He cited with approval the decision of McCracken J. in DPP v. Windle [1999] 4 IR 280 as follows:
“I am satisfied that it is not for a judge conducting a preliminary examination to determine the validity or otherwise of a search warrant. This is a matter purely for the trial judge, to be determined by him on the evidence before him. If there had been no such warrant to the present case, then certainly the District Court would have been justified in refusing to send the second respondent forward for trial as there would have been no evidence to justify the search of the premises, but once a search warrant existed, in my view the question of its validity was one for the trial and not for the preliminary examination.”
Subsequent to this decision the applicant sought and obtained leave to seek judicial review of it in the High Court. He was however unsuccessful on the hearing of his application. The learned High Court judge (Quirke J.) cited the same passage from the judgment of McCracken J. (at p.6 of his judgment) and went on to hold:
“It seems to me that these remarks apply with equal force to the procedure pursuant to s.4E of the 1967 Act which has now replaced the former preliminary examination before the District Court.”
From this judgment and order of the High Court the appellant now appeals to this Court.
Statutory background.
Between 1967 and 1999 the proceedings preliminary to a trial on indictment took place in the District Court. They took place there pursuant to Part II of the Criminal Procedure Act, 1967 which was entitled “Preliminary Examination of Indictable offences in the District Court”. By s.5 of the Act this preliminary examination was made mandatory. Section 6 required the service of certain documents on the accused (“The Book of Evidence”) and s.7 provided that:
“(1) The Justice shall consider the documents and exhibits, any deposition or statement taken in accordance with this Section and any submissions that may be made by or on behalf of the prosecutor or the accused.
(2) The prosecutor and the accused shall each be entitled to give evidence on sworn deposition and also to require the attendance before the Justice of any person, whether included in the supplied list of witnesses or not, and to examine him by way of sworn deposition.”
Section 8 of the Act provided that:
(1) “If the Justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial.”
(3) If the Justice is of the opinion that there is a sufficient case to put the accused on trial for some indictable offence other than that charge, he shall cause him to be charged with that offence, proceed in accordance with s.7(4)… and unless s.13 applies, send him forward for trial.
(4) If the Justice is of opinion that a summary offence only is disclosed, and the Attorney General consents, he shall cause the accused to be charged with a summary offence and deal with the case accordingly.
(5) If none of the foregoing provisions applies, the Justice shall order the accused to be discharged as to the offence under examination.”
That procedure, familiar to generations of lawyers, was abolished by the Criminal Justice Act, 1999. Part III of that Act is entitled “Amendments to abolish preliminary examinations”. Section 8 of the Act is entitled “Amendments of s.4 of the Act of 1967.”
Section 9 of the 1999 Act provides for the amendment of the 1967 Act “by the insertion after s.4 of the following part.” The whole of s.9 of the 1999 Act is relevant for the purpose of the present case but it is necessary to set out here only the new provisions of s.4E of the 1967 Act, inserted by s.9. These are as follows, so far as directly relevant:
“(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.
(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.
(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.
(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.
(5)(a) Oral evidence may be given on an application under subsection (1) only if it appears to the trial court that such evidence is required in the interests of justice.
(7) Where a charge is dismissed by the trial Court under subsection (4), the prosecutor may, within 21 days after the dismissal date, appeal against the dismissal t the Court of Criminal Appeal.
(8) On an appeal under subsection (7), the Court of Criminal Appeal may-
(a) affirm the decision of the trial court, or
(b) quash the decision of the trial court, in which case the trial of the accused may proceed as if the charge had never been dismissed.”
Submissions.
The appellant submits that the old “preliminary examination” has been abolished by the 1999 Act and replaced by an entirely new statutory dispensation. This, says the appellant, is a broad and unqualified one: he has an absolute entitlement to apply to dismiss the charges against him. The grounds of such application are not limited in any way: nothing is excluded. In the course of submissions the applicant indicated the nature of his challenge to the sufficiency of the case against him in some detail: he said that the search warrant issued does not, on the face of it, relate to the premises where the drugs in question were allegedly found.
In his statement of evidence, the guard who applied for the search warrant, Garda David Kennedy, said that he received information “that a premises connected to Farrell O’Brien Metal Fabricators on Knockmitten Lane, Killeen Road, Dublin 12” was being used to store and distribute drugs. The warrant eventually issued was for: “(a premises) (land) of Farrell O’Brien, Knockmitten Lane, Killeen Road, Dublin 12.” One or other of the words “a premises” or “land” was supposed to have been deleted but this did not occur. Counsel for the applicant said that he would require to call a small amount of oral evidence to establish that the place where the drugs were seized was not the same as the place mentioned in the documents served on the accused. He said however that there was provision for such evidence in subsection (4) of the new s.4E. He pointed out that challenging a search warrant is a matter which would normally be dealt with in the absence of a jury on a voir dire and that a jury would not be involved in the determination at all. He referred to the provision in the new Section for oral evidence with the leave of the trial judge and submitted that the intention of the Oireachtas in inserting that Section was to prevent the many voir dire applications that may occur, from delaying or obstructing the course of a trial already commenced. He said that, in a pre-trial hearing, a judge could determine an issue of law and if the judge determined that issue in favour of the accused at a pre-trial hearing pursuant to s.4E, that would avoid the necessity for the trouble and expense that a trial necessarily involves. He also submitted that the new s.4E plainly envisaged that a result which would bring the entire trial to an end might follow an application under s.4E by providing that the Director could appeal against a dismissal of the charge. He has no right of appeal against a directed verdict at Trial.
The Director of Public Prosecutions submitted that the Oireachtas did not intend, in passing the 1999 Act, to effect what he described as “a fundamental change in the nature of the criminal process”. He said that the main aim of the 1999 Act was simply to move the focus of the preliminary stages of a criminal trail from the District Court to the court “in respect of which the accused was returned”. He conceded that:
“When looked at on its own it is true to say that s.4E does not place any express limitations of what can be raised in a motion to dismiss.”
However he pointed out that the Act of 1967 did not do so either “so it is difficult to see what this proves”. He said that the Section should be looked at against the background of the whole concept of a criminal trial as understood in Ireland. “The interpretation contended for by the applicant would undermine the unitary nature of a criminal trial. Significant issues which would normally only be dealt with once a jury had been sworn in would now be determined in advance and could be the subject of appeal. If the applicant is correct, motions to dismiss could presumably canvass all types of issues such as the legality of detention or the admissibility of confession.”
Both sides, as it happened, relied on the fact that there had long been calls for the provision of some mechanism, preliminary to trial, where evidential and legal issues could be determined. The report of the Working Party on the Jurisdiction of the Courts: the Criminal Jurisdiction of the Courts, which was published in May 2003, called for the introduction of a new preliminary hearing mechanism for all cases on indictment. One of the purposes of this was “to enable the determination of those types of issues of admissibility of evidence which by their nature are capable of being dealt with prior to trial” (see paragraph 85 of the Report). The applicant says that the Director of Public Prosecutions himself has frequently made a similar suggestion but the respondent says that the fact that the Working Party called for this in 2003 shows that it did not regard the innovations introduced in 1999 as constituting such a mechanism. But the views of the very respected Working Party cannot be dispositive of the issue, which is fundamentally one of statutory interpretation. The Working Party, indeed, may not have addressed this issue at all.
The appellant makes a further submission which arises from the fact that he is charged, inter alia, with an offence contrary to s.15A of the Misuse of Drugs Act. He points out that, by reason of the terms of this Section, he would on conviction be subject to the imposition of a statutory minimum sentence of ten years. However, if he could demonstrate “specific and exceptional” circumstances, then the statutory minimum sentence might not apply. The Act specifically identifies that a fact of which the court is entitled to take into account is a plea of guilty and the time at which and circumstances in which a plea is tendered. He says that the result of this is that he is entitled to be advised as to the legality of the warrant at the earliest possible stage so that he can decide on his course of action in relation to the accusation against him on the basis of such advice. If the issue is not determined until the trial he may be prejudiced in terms of sentence as a result of a finding that he did not offer an early plea of guilty.
This seems to me to be a matter which it is very proper for the appellant and his advisers to take into account but, again, one which could not be dispositive on the question of the true meaning of s.4E.
The new subsection.
The 1999 Act abolished preliminary examination in the District Court. Under the former system it was possible for a defendant to have the charges against him dismissed in the District Court if that Court was not satisfied that there was a sufficient case to put him on trial. Although that procedure has been abolished, the Act of 1999 conferred certain compensating entitlements on defendants. These, however, were required to be exercised in the “trial court” rather than in the District Court. The right to apply for the dismissal of the charges against one, pursuant to s.4E, is one such entitlement. These are important entitlements. Quite clearly (to speak only of the right to apply to have a charge dismissed) if there is a single point which may avail the defendant to the extent of fatally undermining the charges against him, it is a great advantage to have this determined before the trial itself. Disposal in this way represents a major saving of time and expense to both sides, avoids inconvenience to witnesses and to the often forgotten jury persons, brings a rapid end to the defendant’s anxieties (which in this case must be considerable since one of the charges against him carries a mandatory minimum sentence of ten years imprisonment) and brings about a resolution of the action between the prosecutor and the defendant at the earliest possible time, freeing up court time for other cases.
There is, accordingly, no doubt but that the applicant was entitled to seek the dismissal of the charges against him in the Circuit Court. The question is whether he was entitled to seek it on the basis of the invalidity or insufficiency of the search warrant which was exhibited in the documents served on him.
The answer to this question must depend on the terms of the statutory provision already quoted. The applicant has undoubtedly brought his application in the “trial court” which is what the subsection envisages. The Director submits that the question of the invalidity or insufficiency of the warrant can be determined only by the trial judge. Undoubtedly it would have been open to the Oireachtas to lay down that this should be so but it has not done so, speaking only of the “trial court”. His Honour Judge O’Donnell is undoubtedly a judge of the Circuit Court. The applicant cannot know in advance who the judge presiding over the trial will be so that, if he wishes to avail of s.4E he must bring his motion in the Circuit Court and await its assignment by the proper authorities to whatever judge they regard as appropriate. He cannot determine the identity of the Judge who will decide the result of his motion. The identity of the trial judge is usually not known (in Dublin) until the morning of the trial.
Equally, it seems to me, that the fact that there is authority for the proposition that a judge conducting a preliminary examination (prior to 1999) should not determine the validity of a warrant is without relevance to the present issue, because the former preliminary examination has been abolished by statute and this new procedure substituted. If there is one thing that can be said with certainty about the intention of the legislature in enacting the Act of 1999 it is that such intention certainly extended to the abolition of the preliminary examination procedure and to its replacement with this entirely new procedure. See the long title to the 1999 Act. Accordingly, the relief sought in the Applicant’s motion seems to me to be within the power conferred by s.4E.
The most fundamental ground urged by the Director is that to have important issues determined by a preliminary motion would interfere with the essential unity of a criminal trial. He cites in this regard a well know passage from Chief Justice Ó Dálaigh in The People (Attorney General) v. McGlynn [1967] IR 232 at 239:
“The nature of a criminal trial by jury is that once it starts, it continues right through until discharge of verdict. It has the unity and continuity of a play.”
Ó Dálaigh C.J. continued, in a passage which requires knowledge of the facts of the case to make comprehensible:
“It is something unknown to the criminal trial for a jury to be recessed in the middle of a trial for months on end and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”
McGlynn’s case was one in which a Circuit Court judge purported to state a case for the opinion of the Supreme Court after the evidence in a criminal trial had closed and before the jury’s verdict. Section 16 of the Courts of Justice Act, 1947, enabled him to state a case in a matter “pending before him”.
The Supreme Court declined to entertain the Case Stated on the basis that the matter was, strictly speaking, pending before the jury or the judge and the jury, and not before the judge alone. The passage quoted above, and relied on in the Director’s submissions is in the nature of an additional observation and is introduced by the words “There is, moreover, the nature and history of a criminal jury trial” (p.239).
Apart from any of these considerations, it is clear that the course of action which the appellant wishes to take here would not involve the adjournment of a criminal jury trial for any period, long or short. It would, on the contrary, facilitate the unitary disposition of the case by a jury by resolving in advance a question which would have to be determined otherwise in the absence of the jury, perhaps delaying for several days their participation in the case.
It has, unfortunately, become all too common for juries to be sent away for long periods during the course of a criminal trial. Indeed, it has become quite common for a case to be opened and the jury sent away immediately while issues such as those sought to be raised here under the s.4E procedure, are determined. The judge will normally send the jury away with some words of apology and attempt at an explanation but the fact is that the present system makes little or no attempt to minimise the time for which the jury’s absence from their ordinary avocations and duties is required.
We live in an era of case management, when a serious attempt is being made to deal with all litigation, civil or criminal, in an efficient manner. The most superficial consideration of efficiency will lead to the conclusion that it is considerably more efficient to deal with matters, which must by their nature be dealt with without a jury in any event, before the jury is sworn and taken away from their ordinary occasions rather than afterwards. I accord the fullest possible respect to Chief Justice Ó Dálaigh’s statement about the essential unity and continuity of a criminal trial and entirely agree with it. Disposing of evidential issues before the jury is sworn will assist and emphasise, rather from detracting from, that unity and continuity. In other jurisdictions where pre-trial motions to suppress evidence and similar procedural devices are well established, the fundamental nature of a jury trial is not considered to be trenched upon.
According to the United States Federal Rules of Criminal Procedure the government must, at or as soon as possible after arraignment notify the defendant of its intention to use specific evidence at trial, “In order to afford the defendant an opportunity to object before trial under Rule 12(B)(3)(C)” (which provides for a motion to suppress testimony). Rule 47 of the Rules applies to pre-trial motions and a motion to suppress evidence is one that must be made before trial. Similarly, “The Court must decide every pre-trial motion before trial unless it finds good cause to defer a ruling”. For the position in the United Kingdom, see Sprack Criminal Procedure, paragraph 16.08 and sections 39 – 43 of the Criminal Procedure and Investigations Act, 1996. It is clear that in neither of these jurisdictions does the making of significant rulings at pre-trial hearings constitute a radical departure from the essential nature of jury trial.
On a careful examination of s.4E I can see nothing that excludes the procedure which the appellant was seeking to have adopted. Indeed, it is conceded on behalf of the Director that there is nothing express prohibiting the procedure he seeks to adopt and he has grounded his opposition under the broader basis indicated above. I would therefore quash the decision of the learned Circuit Judge not to consider the motion brought by the defendant on the ground of a lack of jurisdiction and remit the matter to the Circuit Court to be dealt with in accordance with law.
DPP v DMcG
[2017] IECA 98
JUDGMENT of the Court delivered on the 23rd day of March 2017 by Mr. Justice Mahon
1. The appellant was tried by a jury at the Central Criminal Court in relation to thirty eight counts of sexual crimes involving his step children, M and L committed between 2001 and 2010, and was found guilty of all but three of the counts on the 21st April 2016.
2. Counts one to thirteen related to M. These included one count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act 1990; six counts of oral rape and six counts of anal rape contrary to s. 4 of the Criminal Justice (Rape Amendment) Act 1990. The appellant was acquitted of one of the sexual assaults counts, one of the oral rape counts and one of the anal rape counts. He was found guilty of the remaining ten counts by majority verdict.
3. On 20th June 2016 the appellant was sentenced to terms of imprisonment of twelve years in respect of each of the s. 4 offences, five year terms in respect of the sexual assaults committed against L and a three year term in respect of the single count of sexual assault committed against M. All sentences were directed to run concurrently and to date from 21st April 2016. He was also ordered to undergo twelve months of post release supervision. The appellant has appealed against both his conviction and sentence. This judgment relates to his conviction appeal only.
4. The appellant and his family, including his wife and her four children moved to Ireland from South Africa in 2001. The complainants’ are the two younger children who were aged five and ten years at that time. Over the period of the abuse the family lived in four different locations in Co. Cork. M’s abuse took place in three of the locations while he was aged between ten or eleven years and seventeen years. L’s abuse took place in two of the locations when she was aged between six years and twelve years.
5. M gave detailed evidence as to the abuse perpetrated on him. He described how the appellant on occasion called him into a bedroom and offered him money to show him his private parts and allow him be touched by the appellant. Other sexual favours for which he was paid money by the appellant included acts of oral rape and anal rape. M was also shown pornographic dvd’s and magazines by the appellant In the course of this abuse M gave evidence as to instances of self harm and one attempt to hang himself.
6. L’s account of the sexual abuse perpetrated on her related to instances of sexual assault when the appellant touched her vagina and digitally penetrated her. She also related to a number of occasions when she was subjected to oral rape. She also gave evidence of being paid money by the appellant and of instances when she was photographed by him. L did not allege that the appellant had shown her pornographic dvd’s or magazines by the appellant.
7. Three grounds of appeal are promoted on behalf of the appellant. They are:-
(i) the refusal of an application to sever the indictment which resulted inter alia in the appellant facing trial in respect of two separate complainants;
(ii) the refusal of an application to discharge the jury when prejudicial evidence unconnected with the case was given in its presence;
(iii) the jury verdicts were perverse and inconsistent as between one another.
The refusal to sever the indictment
8. At the commencement of the trial, the appellant sought to have the indictments severed in respect of the counts relating to the two complainants. It was argued on behalf of the appellant that the evidence relating to the counts in respect of one complainant could not be cross admissible as regards that of the other, and vice versa. It was submitted that the probative value of such evidence did not outweigh its prejudicial effect because, inter alia, there was insufficient similarity or nexus between the accounts of both complainants. It was submitted on behalf of the respondent that while it was accepted that the evidence of one complainant could not corroborate that of the other, such evidence could nevertheless be deemed cross admissible.
9. In her ruling refusing the application to sever, the learned trial judge stated as follows:-
“Now, in this case, the subject matter of this trial, there are some differences in the proposed evidence to include the taking of photographs and videos of the second named complainant, L. However, having considered all of the submissions and read the case law which was open to me, I am satisfied that there are sufficient aspects of similarity in the proposed evidence to enable the evidence of the complainants to be admissible or, as Mr. Justice Hardiman states in the decision of DPP v. McCurdy, terms the evidence to be cross admissible in order to show a system or to rebut accident.
In considering the proposed evidence, I am influenced by the decision of Mr. Justice Barron and in particular his analysis of the principles applicable in these types of categories of cases where he stated that the rules of evidence should not be permitted to offend common sense. I have also considered the decision of DPP v. J.C. [2015] 14th November, where the Court of Appeal considered in that case the evidence which included allegations of abuse alleged against the accused man by his extended family by marriage and in that particular case the aspects of which were considered, it seems, by the Court of Appeal, included that the allegations were made against the accused that he had abused members of his extended family, that is, his extended family by marriage. They occurred for the most part in the residence of the accused. At the time most of the counts appeared in the same boundaries of time and, in particular, the matters alleged are all quite similar. The Court went on to say “in other words…” this is, I should say, a quotation from the trial judge’s decision in that case,
“In other words, the allegation that the accused coerced or forced or made the complainant put the complainant’s hand down his penis and in my view the instance may not have all been exactly the same, but there is sufficient striking similarity to allow the counts to proceed before the same jury and on the same indictment, so I refuse the application to sever the indictment.”
As I say, that was a quotation from the trial judge’s ruling in the decision of JC.
In this case I do not consider the genders of the complainants to be of significance. The following matters appear to me to be areas of similarity;
(i) first of all that the complainants are the accused man’s stepchildren;
(ii) secondly, both were minors at the time of the alleged offending;
(iii) thirdly, as regards the incident of sexual assault as alleged by M, this involved the touching of his private parts and as regards the instance of sexual assault with regards to the second complainant, L, these involved instances of touching her private parts, specifically her vaginal area and her breast area and included digital penetration;
(iv) four, there is an overlap in time as regards the alleged offending;
(v) five, the alleged instances are alleged to have occurred in the family home or homes of the accused man and his stepchildren;
(vi) six, there was the offering of money as ascertained by both complainants in their proposed statements of evidence;
(vii) seven, as regards the oral – allegation of oral intercourse regarding the boy, M, this is alleged to have commenced when he was aged fourteen years of age, as regards the oral intercourse regarding the girl, L, this is alleged to have commenced when she was eleven years of age; and finally the secret nature of the alleged offending.
While there is no allegation of anal rape alleged by L, I am satisfied to refuse the application nonetheless to sever, as to sever those counts in relation to alleged offending of anal rape would be entirely artificial and in that regard also I rely on the different nature of the allegations alleged in the L.G. decision where there were two separate complainants. They were of different ages. The allegation in relation to one complainant was that of rape and indecent assault and the allegation in relation to her younger sister was that of a single incident of indecent assault. I note the issue here in this instance is whether the offences were committed at all and consequently the proposed evidence is cross admissible to seek to establish that they were committed on the prosecution’s case and therefore the evidence is admissible because, to quote Mr. Justice Barron:-
“The evidence is admissible because there is an inherent improbability of several persons making up exactly similar stories, (B), it shows a practice which would rebut accident, innocent explanation or denial.
And it is, of course, in order for the evidence to be admissible it is necessary that the probative value of the evidence outweighs the prejudicial effect and I am satisfied that this is so in this instance.
In considering the issue of the potential of collusion, I do not believe that that falls within a consideration of the admissibility of the evidence in and of itself. But it is a matter, if relevant for a jury’s consideration if it should arise. In any event, in this particular instance however, there is only a submission as regards collusion. There is no evidence of actual collusion and therefore I am satisfied that this is a matter for consideration if it should arise for the jury and I refuse the application to sever the indictment.”
10. In his written submissions to the Court the appellant lists what he describes as the dissimilarities between the evidence relating to the two complainants. These are stated to be:
(a) The gender difference between the complainants.
(b) The difference in ages between both complainants during the currency of the respective offending, being in the case of M between the ages of ten / eleven and seventeen, and in the case of L between the ages of six and twelve years.
(c) The difference with respect to the variety and sequence of the offending.
(d) The fact that the sexual assaults in respect of L involved touching of her chest and digital penetration which was absent with respect to those counts involving M.
(e) The fact that allegations of anal penetration were confined to the counts involving M.
(f) The fact that the instances of oral rape involving M were alleged to have continued to the point of ejaculation whereas in the case of L the accused was alleged to have departed prior to ejaculation.
(g) The fact that certain alleged circumstances surrounding the offences were different as regards each complainant. By way of example whilst there was extensive reference to photographing and videotaping the offending involving L, the same was totally absent from M’s account.
(h) M made a reference in his statement to being brought by the appellant in the boot of a car to a house which the appellant was assigned to watch over as part of his duties as a security person. Here he stated that he had been shown pornography before being anally raped. L made no reference in either of her statements or subsequently in her evidence to being abused at such a location or in such a manner and similarly made no reference at any stage to being shown pornographic material.
(i) L referred in her first statement made in 2010 to an incident in which she claimed to have been sexually assaulted by the appellant while they were driving from one location to another in Co. Cork. This apparently happened in a van that the appellant was using to move items from a house in the first location to one at the second location. Evidence of this incident was not led but it was outlined in the book of evidence which was before the learned trial judge when she was considering the application to sever the indictment. No allegation of abuse of this nature was made at any stage by M.
(j) L referred also in her first statement to have been sexually assaulted on a number of occasions in an apartment in which the appellant was apparently living for a time while the family were based in a particular location. She stated that on occasions she would be collected from school and brought to this apartment by the appellant where she would do her homework. She claimed that the appellant would sexually assault her here while she was using a computer. No allegations were made by M regarding abuse taking place at this location or in this manner. Again, evidence of these incidents were not led but was outlined in the book of evidence which was before the learned trial judge as she was considering the application for severance.
11. The learned trial judge referred to the decision of Barron J. in DPP v. K(B) [2002] 2 I.R. 199. In that case the appellant had been convicted of sexual offences committed against children in a residential facility run by a Health Board. The court held that the joint trial of all the counts created an unfair prejudice, and therefore allowed the appeal. The court was satisfied that the manner in which the alleged offences were committed differed to the extent that similar – fact evidence did not arise. Barron J. summarised the principles emerging from a number of cases which he considered in the course of his judgment as follows:-
(i) The rules of evidence should not be allowed to offend common sense.
(ii) So, where the probative value of the evidence outweighs its prejudicial effect, it may be admitted.
(iii) A category of cases in which the evidence which can be admitted is not closed.
(iv) Such evidence is admitted in two types of cases
(a) to establish that the same person committed each offence because of the particular feature common to each, or
(b) where the charges are against one person only to establish that offences were committed.
In the latter case the evidence is admissible because:-
(a) there is the inherent improbability of several persons making up exactly similar stories;
(b) it shows a practice which would rebut accident, innocent explanation or denial.”
12. Reliance is placed by the appellant on the decision of this court in DPP v. Shannon [2016] IECA 242, (which post dated the appellant’s trial). Shannon is said by the appellant to (together with the Supreme Court decision in DPP v. McNeill [2011] 2 IR 669) cast a doubt on the extent to which the principles outlined in B.K. still represent the law in this jurisdiction. An important point to note is that Shannon was not concerned with sexual offences but rather was concerned with the criminal damage to artwork in different locations.
13. It is not correct to say that B.K. does not represent the law on the use of evidence of previous misconduct, or of misconduct on another occasion, as system evidence in this jurisdiction. It does, though perhaps now, subject to a qualification.
14. As was discussed in Shannon, one nuance to that decision was that B.K. had ostensibly displaced the established test governing the admissibility of misconduct evidence propounded by Lord Herschell in Makin v Attorney General for New South Wales [1894] AC 57, and previously adopted into Irish law in The People (Attorney General) v Kirwan [1943] IR 279, in favour of a test which balances probative value against prejudicial effect as advocated by Wilberforce LJ and Cross LJ in DPP v Boardman [1975] AC 421.
15. The Herschell test allowed such evidence to be admitted if (i) it is relevant to, and sufficiently probative of, an issue in the proceedings, (ii) its admission is necessary, and (iii) there is sufficient proof of the commission of the acts of misconduct. However that was all subject to the following qualifications. Misconduct evidence would not be admissible for the purpose of inviting the jury to infer from it that the accused is a person who, by reason of his disposition or bad character, is likely to have committed the offences charged. Further, a trial judge has a discretion to exclude misconduct evidence which would otherwise be admissible if its probative force is outweighed by its prejudicial effect. Further, in any case where misconduct evidence is admitted and there is a risk that the jury may draw the inference that the accused is likely, by reason of his other criminal conduct or character, to have committed the offences upon which he or she is charged, the trial judge should instruct the jury as to the limited purpose for which the evidence has been admitted and warn them not to draw such an inference.
16. It was noted in Shannon that the McNeill decision suggests that the Herschell test approved in Kirwan remains the law as to the correct test. The remarks of O’Donnell J in the Supreme Court in McNeill concerning the admissibility test propounded in BK were obiter dictum, as were the remarks of Edwards J in Shannon, and neither judgment has expressly overruled BK on the issue as to the correct test. Both judgments do, however, acknowledge the existence of an issue that remains to be definitively determined.
17. However, even if BK is found, in due course, and in another case, to have propounded the wrong test as to admissibility, there is no reason to believe but that in all other respects, and in particular concerning how misconduct evidence may legitimately be used to establish evidence of system, and to rebut accident, innocent explanation or denial, particularly in the context of the trial of an accused for alleged sexual offences, B.K. will continue to represent good law.
18. In delivering the judgment of the Court in Shannon Edwards J. stated:-
“At this point we are not primarily concerned with whether the trial judge was right to have ruled in principle that system evidence was capable of being admitted in support of the Shelbourne Hotel case, because that aspect of his ruling was overtaken by events when he later granted directions on Counts No’s 2 and 3. However, we reiterate that we are satisfied that in so far as his ruling concerned the National Gallery case, it was one that was legitimately open to him to make. The discretion was properly exercised because, as counsel for the prosecution pointed out, the evidence was relevant in terms of potentially rebutting the defence of accident. There were also some striking similarities between the two incidents rendering it inherently probable that the accused had committed the offence charged. It was therefore also relevant and probative on that account.”
19. In Shannon this court expressed its satisfaction that the learned trial judge in that case correctly exercised his discretion not to sever the indictment and to allow proposed evidence of the Shelbourne Hotel incident to be relied upon in the case involving The National Gallery incident, and vice versa, because in each instance the proposed evidence in controversy which was properly to be characterised as “system” evidence, was potentially relevant to an issue or issues in the proceedings, and it was sufficiently probative. Edwards J. stated:-
“The discretion was properly exercised because, as counsel for the prosecution pointed out, the evidence was relevant in terms of potentially rebutting the defence of accident. There were also some striking similarities between the two incidents rendering it inherently probable that the accused had committed the offence charged. It was therefore also relevant and probative on that account.”
20. In DPP v. JC (No. 1) [2015] IECA 343, the appellant was charged with a number of counts of indecent assault or sexual assault of the nieces and the younger sister of his former wife and on his own son and daughter. An application to sever the indictment was refused by the learned trial judge. In the course of his judgment, Sheehan J. stated:-
“While the trial judge did not refer in detail to the appellant’s submissions in the course of his ruling and while the prosecution does not seek to describe all complaints as having a striking similarity, it is nevertheless the case that the similarities were such as to properly allow the jury to consider the evidence in one case as supportive of that in another. The trial judge’s ruling demonstrates that he approached the application for severance carefully and took into account the relevant legal principles. Indeed it could be said that severing the indictment would have resulted in the jury not getting the full picture. This is particularly relevant when one considers the final submission made on behalf of the respondent. While it did not form part of the trial judge’s ruling it is germane that the evidence of the appellant’s wife regarding his admission that he had abused SW is evidence that was relevant not only to SW’s complaint but was also relevant evidence in respect of all other counts on the indictment. This Court holds that this piece of evidence provides strong support for the correctness of the judge’s ruling. The Court therefore holds that the trial judge properly exercised his discretion when he refused to sever the counts and accordingly this ground of appeal fails.”
21. In his text book Sexual Offences (2nd Edition), Prof. O’Malley noted the following:
“The one recurring term in the jurisprudence on severance is that the decision on ordering separate trials is very much within the judge’s discretion. An appeal court will not overrule a trial judge’s decision to refuse severance, “unless it can be seen that justice has not been done, or unless compelled to do so by some overwhelming fact” (ref. R v. Flack [1969] 1 WLR 937)”.
22. In R. v. Christou [1997] AC 117 a judgment of the House of Lords states:-
“How discreet or interrelated are the facts giving rise to the accounts, the impact of ordering two or more trials of a defendant and his family, on the victim and their families, on press publicity; and importantly whether directions the judge can give to the jury will suffice to secure a fair trial if the accounts are tried together. In regard to the last factor, two re-trials are conducted on the basis that the judge’s directions of law are to be faithfully applied.”
23. In the instant case there are indeed striking similarities in the allegations made against the appellant by the two complainants. The nature of the sexual offending is, while not precisely similar, broadly so. Its dissimilarity may simply be explained by the fact that one complainant was male, and the other was female. Importantly however, both were children. There is also the fact that both complainants were the stepchildren of the appellant, and that the locations in which the sexual abuse took place were, for the most part, the family home at the time. Another similarity is the allegation by both complainants of being offered money as an inducement to facilitate sexual abuse.
24. The differences between the two complainants were their ages at the time the offences were committed (although both were children at all times), the gender of the complainants, the fact that one complainant only was shown pornographic material, and one complainant only was photographed by the appellant. However these are differences which in the overall context of the allegations are not of great significance. Repeated incidents of sexual abuse by an abuser are unlikely to be precisely similar in form or in nature and to expect them to be flies in the face of common sense and, indeed, also, the experience of the courts.
25. It is further submitted on behalf of the appellant that there was an inherent risk of collusion in this case, as both complainants are siblings. Reference was made to an Australian decision, Hoch v. R [1988] 165 CLR 292, and the comments of Mason C.J., when he stated:
“In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view – viz. joint concoction – is inconsistent with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.”
26. The risk of collusion is almost always present in sexual offence cases where siblings or close friends are involved. However, in this case, there are important differences as between the detail of the allegations given by the two complainants, such as, for example, the allegation by one complainant only of being shown pornographic material and the allegation by one complainant only of being photographed. Such differences are unlikely to have been present if the complainants had colluded to give evidence designed to support each other.
27. It is contended on behalf of the appellant that the refusal to sever the indictment rendered the trial of the appellant manifestly unfair in that it exposed him to what is referred to as the obvious and significant prejudice of allowing the jury to infer that because he may have committed sexual offences against one complainant, he was therefore more likely to have done so against the other. It was also submitted that the refusal facilitated the jury finding corroboration in respect of the evidence of each complainant in relation to the evidence of the other where none in fact existed in law as was accepted by the prosecution.
28. In her charge to the jury the learned trial judge stated:-
“The evidence of each complainant does not corroborate the other complainant: corroboration is some piece of independent evidence that is independent – that is independent of the testimony of a complainant which of itself points to the involvement of an accused in the commission of a crime or crimes. This cross admissibility does not mean that the evidence is corroboration; it is not corroboration, it is not such evidence, there is no corroboration in this case, and I just wanted to make that clear to you.”
29. This, in the view of the court, acted as a strong reminder to the jury that they should not treat the evidence of one complainant as corroborating the evidence of the other.
30. The court is satisfied that the refusal to sever the indictment was a decision properly made within the discretion of the learned trial judge. Equally the court is satisfied that the collusion concern is without foundation. Grounds one and two of the appeal are therefore dismissed.
The refusal to discharge the jury
31. It is submitted on behalf of the appellant that the learned trial judge erred in refusing an application to discharge the jury following the introduction of prejudicial evidence.
32. On the second day of the trial, in the course of the examination of M, a reference was made by him to “accusations” having been made against the appellant. This apparently related to a complaint against the appellant made by an older sister, and who was not in any way involved in the trial. The relevant extract from the transcript is as follows:-
“Counsel: Ok. And you indicated you think you were sixteen, how did things get on in W?
“M: They got on ok for a while. Everything seemed to stop for a while, because accusations were made against him and ..” [emphasis added]
33. Prosecution counsel immediately intervened in an effort to prevent anything more being said on this issue, and succeeded to the extent that no further reference was made to it. It was accepted that the prosecution had never intended to refer to any such accusations and that the offending reference was made by M without advance warning.
34. The appellant contended that the damage had been nevertheless done, and that the effect of the reference to “accusations” by M was so prejudicial as to make it impossible for the appellant to receive a fair trial thereafter. An application was made to discharge the jury. The learned trial judge refused the application, ruling as follows:-
“I am not satisfied to discharge the jury, it’s not a matter which in my mind would led to a jury being discharged. It has been said time and time again that juries are robust in dealing with this – with any cases and of course that would include in dealing with cases of this particular type. And it is also the position that there are two complainants in the case and as Mr. O’Leary has indicated difficulties can arise vis-à-vis evidence given in any case of a sexual nature, particularly as regards this type of case. So I am not disposed to discharge of the jury.”
35. It is long accepted that a jury should only be discharged in the last resort and only in circumstances where the damage done by the introduction of prejudicial evidence cannot be reasonably undone by suitably charging the jury or otherwise.
36. In DPP v. Fahey [2008] 2 IR 292 it was stated:-
“…the discharge of a jury should be the last resort and accomplished only in the most extreme circumstances: juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant or should not have been given before them.”
37. The Court is satisfied that the reference to the “accusations” was, while unfortunate and potentially prejudicial to the appellant nevertheless sufficiently brief and lacking in detail as not to warrant a discharge of the jury in the circumstances. It occurred at a relatively early stage in the trial and was not again referred to. It is unlikely to have featured to any significant degree in the minds of the jurors.
Verdicts were perverse and inconsistent
38. It is submitted on behalf of the appellant that the evidence of L made it impossible for the jury on the basis of such evidence to have been satisfied of the appellant’s guilt beyond a reasonable doubt.
39. In relation to the evidence of L, the appellant points to inconsistencies in the detail of sexual assaults suffered by her as between statements made to the gardaí in October 2010 and in December 2013. Furthermore, in December 2013 she stated for the first time that she had been videotaped and photographed by the appellant. Also in December 2013 she alleged for the first time that she was offered money to perform sexual acts. Reference is also made to the inconsistency as to L’s age when it is alleged she was subjected to oral rape by the appellant. Finally, there is reference to the inconsistency in L’s evidence to the effect that she was photographed on the one hand, in one location, and on the other hand, in a number of locations.
40. In relation to the highlighted inconsistencies in the evidence of L, the learned trial judge ruled as follows:-
“Now, those last two matters, the inconsistence vis-à-vis the age when the oral allegations of rape commenced and the locations where the complainant asserts that she was photographed or video recorded in my mind are entirely matters for a jury’s consideration. It has been repeated time and time again in this jurisdiction by way of our jurisprudence that the questions of reliability and credibility are quintessentially matters for a jury. The question is whether the complainant is consistent as regards her core allegations.”
41. The learned trial judge then went on to consider in detail the timing of the allegations made by L, and the manner in which she gave evidence in relation thereto. She concluded her ruling thus:-
“As stated, I must consider the evidence as a whole and I have done so. I have carefully considered the test as set out in the decision of R. v. Galbraith and I am satisfied that any inconsistency which may exist is a matter entirely within the remit of a jury and this is not a situation where I should withdraw the charges from the jury and I refuse the application.”
42. In relation to M, the appellant contends that the verdicts returned by the jury were perverse and inconsistent as between each other. In particular, the appellant was convicted by a majority verdict in respect of the vast majority of counts, but was acquitted in respect of three counts. It was submitted that there was no logic for the jury’s acquittal of the appellant in respect of the three counts, while convicting him of the other counts, given the similar nature of all the alleged offending.
43. The application for a direction which led to the ruling from the learned trial judge was made only in respect of counts relating to L. No similar application was made in respect of the counts relating to M. Counsel for the appellant stated as follows:-
“I am not making an application in relation to the counts in relation to M because whatever matters that I will raise in relation to the evidence and credibility of that witness I accept are matters for the jury…”
44. The Court is satisfied that the learned trial judge’s refusal to grant a direction in respect of the counts against L was correct. Any issues relating to inconsistency or reliability of evidence was a matter for the jury. Equally, the Court is satisfied that the verdicts returned in respect of the allegations made by M were not perverse or inconsistent. It was open to the jury to reach different verdicts in relation to the different counts on the evidence presented, and indeed the fact that they did so suggests that they paid particular attention to the evidence relating to each of them.
45. All grounds of appeal are therefore dismissed.
Conlon v. Kelly
[2001] 2 I.L.R.M. 198
RESPONDENTS
JUDGMENT delivered the 21st day of February, 2001 by FENNELLY J. [nem. diss.]
1. The applicant appeals from the judgment and order of McGuinness J in the High Court refusing judicial review of an order made by the first named respondent in the Circuit Criminal Court (Judge Kelly) permitting the prosecution to consolidate two indictments . The Court is asked to consider whether the Circuit Court has any such power to consolidate and if it has whether, in the circumstances, it was fairly exercised.
2. There were two separate returns for trial to the Circuit Criminal and two indictments preferred.
3. Firstly, the applicant was charged with three offences of fraudulent conversion in April 1996; he was sent forward for trial in October 1996; the charges were included in Indictment 814/96 upon which he was tried in February 1998, but the jury disagreed and the applicant was remanded for retrial.
4. Secondly, the applicant was charged in August 1997 with eight similar offences of fraudulent conversion but against different persons; he was returned for trial on these charges in March 1998; the charges were included in draft Indictment 258/98.
5. The applicant having been remanded on bail in Indictment No 814/96 to 21st July 1998, both matters were listed before the first-named respondent, Judge Kelly, on that date. Counsel for the Director of Public Prosecutions applied for leave to join in one bill of indictment the sets of charges the subject of Indictment No 814/96 and draft Indictment No 258/96 . It does not appear that the applicant was ever formally arraigned on the latter . Counsel for the applicant opposed the application and the judge made an order giving “liberty to lodge a consolidated Indictment and … adjourn[ing] the matter for arraignment to the 13th October 1998.” After further adjournment to 3rd November, the judge made a further order giving liberty to consolidate the indictments . A consolidated indictment was prepared covering the two sets of charges
6. The applicant sought judicial review by way of certiorari of the orders of the first-named respondent . The matter was heard before McGuinness J, who gave judgment on 14 th December 1999 dismissing the application . She considered that the Circuit Court had jurisdiction under the Criminal Justice (Administration) Act (hereinafter the “act of 1924”) and that, although the first-named respondent had used the word, “consolidation”, in his orders what was involved was joinder of a number of additional counts in a bill of indictment . Insofar as the applicant had grounds for complaint of unfairness a remedy was provided by section 6(3) of the act of 1924.
7. Counsel for the applicant says that the learned trial judge erred in her interpretation of the act of 1924 . The act allows charges to be joined in the same indictment . It does not provide for consolidation of two distinct indictments based on independent returns for trial . It is unfair, in particular, to alter the character of a retrial by adding counts from another indictment . The provisions for consolidation of proceedings in Order 49 rule 6 of the Rules of the Superior Courts cannot be interpreted so as to permit consolidation of indictments in criminal matters, in spite of the inclusion of “criminal proceedings” in the definition of “cause” (Order 125 Rule 1.), even with the benefit of Order 59, rule 14 of the Rules of the Circuit Court, which applies where there is no equivalent Circuit Court Rule.
8. Counsel for the first-named respondent argues that section 5 of the act of 1924 permits charges to be joined in one indictment and that the use of that power was appropriate in this case, in view of the similarity of the alleged offences . Section 6(3) provides a remedy for any “prejudice or embarrassment” arising for the accused from the joinder of more than one charge in the same indictment . An application can be made under that provision at any time.
9. The central question is whether the Circuit Court had power to consolidate two independent indictments containing counts based on separate returns for trial . It is right, in the first place, to seek the answer in the statutory provisions governing indictments . Prime among these is the act of 1924, which remains, with little amendment, the most comprehensive statement of rules governing indictments.
10. It is important also to recall that the statutory provisions regarding a return for trial are found in the Criminal Procedure Act, 1967, in particular, section 8.
Section 4 of the act of 1924 provides:
“(1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge
(2) Notwithstanding any rule of law or practice, an indictment shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Act.”
Sections 1, 2 and 3 of the act of 1924 provide for the making of rules regarding the framing of indictments and their amendment . The rules in the first schedule to the act are given statutory effect by section 1 and provide in detail for the form and content of indictments.
Section 5 of the act of 1924 provides:
“Subject to the provisions of the rules under this Act, charges for more than one felony or for more than one misdemeanour, and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is tried together with any misdemeanour, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies.”
11. Rule 3 in the First Schedule reads:
“Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character.”
12. It is clear that section 5 and rule 3 concern the joinder, by the prosecution , of charges as counts in an indictment framed in accordance with the rules in the schedule . The rule restricts the breadth of discretion for joinder expressed in the section . In this context, counsel for the applicant referred to section 18 of the act of 1967, which provides:
“Where a person has been sent forward for trial under this Part the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he has been sent forward, any counts founded on any of the documents (including any depositions and any statement taken under section 7) and exhibits considered by the justice at the preliminary examination, being counts which may lawfully be joined in the same indictment.”
13. The “documents” “exhibits” are commonly called the book of evidence. The section concerns the framing of an indictment following a return for trial based on a book of evidence and thus links these three elements : book of evidence, return for trial and indictment.
Similarly, section 6 of the Criminal Justice Act, 1951 allows a count for a summary offence to be included in an indictment, “where a person is sent forward for trial ….. [provided that offence] .. . arises out of the same set of facts.”
14. All these provisions deal with the indictment as initially framed by the prosecution. They do not deal with its amendment . They do not confer any power on the court to permit amendment, whether by adding counts or otherwise . Insofar as the learned trial judge, following citation of section 5 and rule 3 with a passage from Ryan and Magee, The Irish Criminal Process, as giving jurisdiction to the Circuit Court, she was mistaken.
15. The only relevant power to amend is expressed in section 6(1) of the act of 1924:
“Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the court be made without injustice, and may make such order as to the payment of any costs incurred owing to the necessity for amendment as the court thinks fit.”
16. This section does not permit amendment by combining counts from separate indictments based on separate returns for trial . It implies that an indictment has already been framed and, as envisaged by the act of 1967, this follows a single return for trial.
17. The criminal process from return for trial onwards attaches central importance to the indictment. It formulates the charge upon which the accused is to be tried. Any change in an indictment, once it has been preferred, requires statutory authority. There is, in my view, no statutory authority for the “consolidation” of two indictments of the sort which occurred here. Whether counts might be added pursuant to the general power of amendment of defective indictments contained in section 6(1) of the act of 1924 where there was a single return for trial would be a different matter, but it does not arise in the present case.
18. Counsel for the respondents relies, however, in the alternative, on the general power of consolidation of actions contained in Order 49 rule 6 of the Rules of the Superior Court . The rule reads:
“Causes or matters pending in the High Court may be consolidated by order of the Court on the application of any party and whether or not all the parties consent to the order.”
19. As indicated above, the definition of “cause” extends, by virtue of the interpretation provisions of Order 125, rule 1 to “any criminal proceeding.” I will assume, for present purposes, that this power extends to the Circuit Court. The extension of the meaning of “causes or matter” from its more familiar civil context depends entirely on Order 125, rule 1. This definition is expressly qualified by the introductory expression: “unless there is anything in the subject or context repugnant thereto.” The old rules, adapted following the passing of the Judicature Act, (Ireland) 1877, did not envisage the consideration of criminal proceedings. (see Wylie, The Judicature Act, 1906, pages 686, 687). It would, in my view, strain the meaning of a simple procedural provision to include within it the power to consolidate and combine two entirely distinct indictments formally and properly preferred in the course of the criminal process . I do not think Order 49, rule 6 was intended to apply to criminal proceedings.
20. In the light of the view that I have formed that the Circuit Court did not have jurisdiction to consolidate the two indictments, the orders of the first-named respondent were made without jurisdiction and are void and it is unnecessary to consider the second part of the argument regarding unfairness. I would allow the appeal and grant an order of certiorari of the orders of the first-named respondent of 21st July 1998 and 3rd November 1998.
DPP v Synnott
[2016] IECA 270
Judgment of the Court delivered 11th of October 2016 by Mr. Justice Edwards
Introduction
1. This judgment is concerned with an appeal by the appellant against his conviction by the unanimous decision of a jury at Wexford Circuit Criminal Court on the 14th of April, 2011, on three counts, as follows:
Count No. 1:
Statement of Offence
Causing loss by deception contrary to provisions of Section 6(1) of the Criminal Justice (Theft & Fraud Offences) Act, 2001.
Particulars of Offence
John J Synnott, between 9th September, 2007 and 7th November, 2007 did dishonestly, with the intention of making a gain for himself or another, by deception, induce AXA Insurance Co Ltd to pay financial compensation in respect of an alleged road traffic accident at Newtown Road, Wexford, on the 9th of September, 2007 thereby causing another loss.
Count No. 2:
Statement of Offence
Corruption in office contrary to the provisions of Section 8(1) of the Prevention of Corruption (Amendment) Act, 2001.
Particulars of Offence
John J Synnott between the 9th of September, 2007 and the 7th of November, 2007, both dates inclusive, within the State and as a member of An Garda Síochána did acts to wit falsely represented that a road traffic accident had occurred at Newtown Road, Wexford on the 9th of September, 2007 and provided false information for official record purposes for the purpose of advantage to himself or another.
Count No. 3
Statement of Offence
Knowingly as an agent and a member of an Garda Síochána using a document containing a false statement in which a principal is interested with intent to deceive and mislead contrary to section 1(3) of the Prevention of Corruption Act, 1906 as amended by the substitution of section 2 of the Prevention of Corruption (Amendment) Act, 2001
Particulars of Offence
John J Synnott, acting as an agent and a member of an Garda Síochána between the 9th of September, 2007 and 27th of September, 2007, both dates inclusive, within the State, with intent to deceive his principal, namely An Garda Siochána, knowingly used a document in which his principal was interested, to wit, the report of a road traffic accident said to have occurred at Newtown Road, Wexford on the 9th of September, 2007 which was false, knowing the same to be false.
Relevant Circumstances
2. At the centre of this case was an alleged road traffic accident, causing material damage only, which was said to have occurred at Newtown Road, Wexford on the 9th of September, 2007 and wherein an Audi A4 saloon motor car, registration no. 02 KK 2877, said to have been owned and driven by one Beverly Redmond, allegedly collided with a parked and unattended Subaru Impreza saloon motor car, registration no. YN 54 ONZ, said to have been owned by one Lorraine Quinlan.
3. The prosecution case was that there was no such accident, and that the claim that there was one was to be the basis of a fraudulent insurance claim. The jury heard that both vehicle owners made claims against the relevant insurance companies (AXA and Hibernian, respectively) and both received sums in compensation for damage allegedly caused: €9,910 in the case of Beverly Redmond and €13,422 in the case of Lorraine Quinlan. The ultimate payer was AXA Insurance Co Ltd in circumstances where their insured, Beverly Redmond, was clearly going to be held liable if her vehicle had indeed struck Lorraine Quinlan’s parked car.
4. The appellant was at all material times a member of An Garda Síochána stationed at Wexford Garda Station. The jury heard that the appellant was indirectly connected to both vehicle owners in the following circumstances. The appellant was a lifelong friend of one Joe Redmond, alias Danny Lynch, having known him since he was a child. They were both long standing members of Wexford Motor Club. Joe Redmond’s wife, from whom he was separated, was Beverly Redmond, the owner and alleged driver of the Audi vehicle. Joe Redmond’s girlfriend was Lorraine Quinlan, the owner of the Subaru vehicle.
5. The jury heard evidence from retired Superintendent Thomas Saunderson that Joe Redmond was known to the Gardaí in New Ross as a local criminal. The prosecution case was that appellant was aware of this and, indeed, that the appellant had in the past intervened with a Garda colleague concerning Joe Redmond, following upon Joe Redmond becoming a person of interest to that Garda.
6. In that regard, the jury heard evidence concerning an incident on the 10th of November, 2004 when Detective Garda Pat O’Brien and Detective Garda John Sheehy were on duty at Rosslare Europort and stopped and searched a van as it disembarked from a car ferry. The driver of the van gave his name as Joe Redmond and the front seat passenger gave her name as Lorraine Quinlan. Detective Garda O’Brien told the jury that, as he was speaking to Mr Redmond, he (the Detective Garda) received a telephone call from the appellant, details of which he noted in his notebook. The appellant asked the Detective Garda if he was going to “hang on to him”. Detective Garda O’Brien said that he didn’t know. The appellant had then inquired about how much wine Redmond had with him, and stated that Redmond was just after ringing him. Detective Garda O’Brien told the appellant that he would speak to him later. That evening at around 11 p.m. the appellant rang Detective Garda O’Brien again. The Detective Garda gave evidence that the appellant told him that he didn’t want to be involved with Redmond and that he wasn’t involved with him. He just knew him. The appellant told the Detective Garda that Redmond was dangerous and that Detective Garda John Sheehy had “pissed Redmond off” but that he, Detective Garda O’Brien, was okay. He urged Detective Garda O’Brien to “be very careful.” He also asked Detective Garda O’Brien if he himself was suspect for talking to Redmond. Detective Garda O’Brien told him “No”, but stated that he and others were aware that the appellant knew Redmond. Detective Garda O’Brien then asked the appellant whether someone of higher rank had been speaking to him about Redmond. The appellant responded that he had met someone a few times and had spoken to this person about Redmond. The appellant added that his own phone number “will probably pop up in the phone records”.
7. Returning to the events of September 2007, the jury heard from Ms Dearbhla Carey, a civilian operator employed by the garda information service, who told them that at 11.04am on the 11th of September, 2007 she was at work and took a call from a man purporting to be the appellant. A formal admission was later made by defence counsel that it was in fact the appellant. Ms Carey told the jury that the appellant, purporting to be the investigating Garda, reported the aforementioned road traffic accident to her and requested her to create a PULSE incident record in respect of it. She did this as the appellant provided the details to her over the phone concerning the parties and vehicles allegedly involved, together with a narrative of the circumstances as they had allegedly been reported to him. A recording of her conversation with the appellant was played to the jury, and the details of the incident as she had recorded them were reflected in a PULSE Incident record printout which was also produced to the jury.
8. The jury also had produced to them a written Traffic Accident Preliminary Report (T.A.P.R.), prepared on a standard form by the appellant, signed by him, and dated the 9th of September, 2007, which he had submitted to the sergeant in charge at Wexford Garda Station, a Sergeant Terence Kenny who also gave evidence, and who in turn, as was standard procedure, had forwarded it to his Superintendent’s office. The evidence was that once a T.A.P.R. is received in a Superintendent’s office, it is used by staff there for dealing with any queries that might be received from insurance companies or other interested parties concerning the accident in question.
9. The T.A.P.R prepared and submitted by the appellant recorded the particulars of both vehicles and their owners/drivers and asserted, inter alia, that the appellant had received an anonymous report of the accident, that he had attended and investigated at the scene, that it was a single vehicle collision with a parked car, and that it was vehicle no. 1 (the Audi) which, while travelling towards New Ross from Wexford, had collided with vehicle no. 2 (the Subaru). The T.A.P.R. further represented that the accident had occurred during the day, in good visibility, in dry weather and with dry surface conditions.
10. Evidence was given about what the appellant was doing at work on the 9th of September, 2007 and what his duties had involved. They had not involved attendance at a road traffic accident at Newtown Road in Wexford. An admission was made on behalf of the appellant on day one of the trial that he had not in fact attended the scene of any road traffic accident on the 9th of September, 2007.
11. It was also formally admitted on behalf of the appellant at the trial that there had been contact between him and Joe Redmond around the time of the 9th – 11th of September, 2007, the relevant dates in these proceedings. Apart from this admission, evidence was given of a considerable degree of phone contact between the appellant’s phone and a phone believed to belong to Joe Redmond, involving some 81 calls in all, during the course of the month of September and into the month of October 2007. Moreover, there was evidence as to the storage of a phone number on the appellant’s phone that was ascribed to Joe Redmond, and which was proved to belong to Joe Redmond, and which number was used and/or provided in the course of certain transactions relevant to this case.
12. The jury also heard extensive evidence concerning the history of the two cars allegedly involved in the non-existent accident. They heard that the blue Subaru Impreza (an import from Cyprus) was bought by a Mr. David Ewart in the UK about March or April 2006. Mr. Ewart was in a head on collision with the car on 29th October, 2006. The car was written off as a total loss because of the heavy damage.
13. The evidence was that on 15th November, 2006, it was taken to Simpsons Salvage Yard in Yorkshire. It was then advertised for sale in Autotrader magazine and sold for Stg£4,000 on 28th August, 2007 to a person who gave his details as Danny Lynch of 59 Hollybrook Avenue, Ranelagh, Dublin 6. Photographs taken at the time of the 2006 accident showed that the car had suffered significant frontal damage. On the 8th of April, 2008 a blue Subaru Impreza was examined by Detective Garda Kealy at Cushinstown, Wexford at a property belonging to Joe Redmond. He gave evidence that this vehicle had suffered a serious head on collision, and that both airbags had deployed.
14. Detective Garda Kealy further told the jury that a driving licence had been seized during an (unrelated) search in Wexford Town on 29th February, 2008. The licence was in the name of Danny Lynch, but evidence was given that the photograph on the licence was of Joe Redmond.
15. The jury also heard that a blue Audi A4, registration 02KK2877 had been burnt out in an incident in Graignamanagh on 1st November, 2004. It had belonged to a Martina Brennan. It was collected from Graignamanagh on 1st November, 2004 by Brian Kelly of 24 Hours Recovery Service at Borris, County Carlow. It was taken from their yard on 3rd November, 2004 by Patrick Donohoe Salvage in Enniscorthy. In 2005, the car was brought to Wexford Car Dismantlers in Gorey. A corresponding blue Audi A4, registration 02KK2877 was examined at Murphys Dismantlers in Gorey on 3rd April, 2008 by Detective Garda Kealy, i.e. after the alleged accident. Detective Garda Kealy told the jury that when he saw this car it was clear that it had been burnt out and there was no evidence of any serious traffic accident. Detective Garda Kealy, a forensic scenes of crime examiner, told the jury that he was satisfied from an inspection of the chassis and vehicle identification numbers that this was genuinely the vehicle that had been registered with the motor tax office as 02KK2877.
16. Following the alleged accident, the blue Subaru Impreza was brought to Doyles Autobody repairs in Bunclody on 12th September, 2007, having been booked in by Joe Redmond. A full inspection was carried out by David Doyle who gave evidence before the jury on day two of the trial, and he deemed it beyond economic repair.
17. David Doyle also told the jury that one or two days later, a severely accident damaged blue Audi A4, with no registration plates but with a valid tax disc, was also brought to Doyle’s Autobody Repairs, having been booked in by Joe Redmond. It was represented to Mr Doyle by Mr Redmond that this was the vehicle that had been involved in the accident with the Subaru. David Doyle carried out an estimate on the Audi car which came to €15,563.65. In the course of doing so, he inspected the vehicle identification number plate, though not the engraved vehicle identification number or chassis number, and it appeared to be correct for the car. Mr Doyle’s evidence was that a vehicle identification number plate, which was simply riveted on, could in principle be removed, unlike a number which was engraved into the chassis. The repairs to the car were carried out on the premises and it was picked up by Joe Redmond in December 2007.
18. The prosecution case was that the blue Audi A4 repaired at Doyle’s Autobody Repairs was not the vehicle that was registered with the motor taxation office as 02KK2877 and inspected by Detective Garda Kealy
19. Both cars presented to Doyle’s Autobody Repairs for estimation of the cost of repairs were inspected by Tom Hennessy, of Cyril Jacobs Motor Assessors, on 21st September, 2007 who furnished reports to AXA. Following the inspection, Tom Hennessy contacted “Danny Lynch” and agreed a valuation with him for the Subaru Impreza. He also contacted Beverly Redmond and agreed a valuation for the Audi A4. In evidence, Tom Hennessy said that he now saw that the cars could not possibly have been in a collision as described, but that he had acted in good faith at the time. Although he inspected the vehicle identification number plate on the Audi, from which he recorded both vehicle identification and chassis numbers, he did not in this instance follow his usual practice of also checking the engraved numbers on the chassis.
20. The prosecution case as presented to the jury was that the appellant consciously and deliberately assisted Beverly Redmond, Lorraine Quinlan and Joe Redmond in the perpetration of a fraud by procuring the creation of a PULSE incident report in respect of the non existent accident by means of his phone call to Ms Dearbhla Carey on the 11th of September 2007; and by his completion and submission of a T.A.P.R containing manifest and admitted falsehoods, again in respect of the non-existent accident. These, the prosecution contended, were intended to provide a paper trail in the event of one or both of the insurers concerned seeking to verify that an accident had in fact been reported. As it happened, no request for verification or other enquiry concerning the alleged accident was received from the insurers concerned by the relevant Superintendent’s office before the claims were paid.
21. The evidence given in that regard came from AXA Insurance Co Ltd staff who told the jury that the decisions to pay were based on the telephone calls they had with the claimants and the report by Tom Hennessy, motor assessor. At no stage did they seek or obtain any Garda report in relation to the alleged accident.
Grounds of Appeal
22. The appellant has filed a Notice of Appeal pleading five grounds of appeal as follows:
(a) The trial judge erred in law and in fact in failing to grant a direction in respect of count no. 1 on the indictment;
(b) The trial judge erred in law and in fact in failing to grant a direction in respect of count no. 2 on the indictment;
(c) The trial judge erred in law and in fact in failing to grant a direction in respect of count no. 3 on the indictment;
(d) The trial judge erred in law and in fact in failing properly to charge the jury in respect of the correct interpretation of count no. 1 on the indictment;
(e) The trial judge erred in law and in fact in failing to charge the jury that they might only return a verdict of “guilty” if each element of each offence was proved beyond reasonable doubt, and in failing to direct them as to the relevant parts of each offence.
23. The Notice of Appeal as filed sets out in respect of each complaint the detailed basis on which it is made.
24. In addition, the appellant has filed a Notice of Motion, almost five years after the trial, seeking the leave of this Court to add two additional grounds of appeal, namely that:
(f) The trial judge erred in law and in fact by introducing into her charge a direction concerning the liability of any person who aids, abets, counsels or procures the commission of an indictable offence to be indicted, tried and punished as a principal offender;
(g) The trial judge erred in failing to adequately put the defence case to the jury.
25. The only explanation put forward for the failure to plead these grounds in the first instance is that they were inadvertently “missed”, as counsel for the appellant put it. In that regard, the application was grounded on an affidavit of Tristan Lynas, Solicitor, sworn on the 23rd of December, 2015 in which he states: “I say that when the said notice of appeal was filed the transcripts of the trial were not in our possession. I say that the transcripts were made available and as Counsel drafted submissions, it became apparent that two further grounds of appeal ought to be included.” Counsel for the appellant concedes that there is no satisfactory explanation for not initially pleading these grounds but has suggested that notwithstanding this the fundamental justice of the case required that the appellant should be allowed to rely on these additional grounds.
26. The application is opposed on the grounds of the absence of a satisfactory explanation, transcript trawling in excess of four years after the event, and inordinate and inexcusable delay. In support of her objection, the respondent has referred this Court to passages from The People (Director of Public Prosecutions) v Cronin (No 2) (2003) IR 377; The People (Director of Public Prosecutions) v. George Redmond (2001) 3 I.R. 390 and The People (Director of Public Prosecutions) v. Griffin [2008] IECCA 112.
27. The Court permitted the appellant to proceed to make his substantive arguments on the proposed additional grounds de bene esse and said that it would rule later on whether the appellant could in fact rely upon them, and ultimately reserved its judgment on all issues including this issue.
Relevant statutory provisions
28. It will be of assistance in the consideration of many of the issues raised on this appeal to set out at this point a number of relevant statutory provisions.
29. Count no. 1 charges an offence contrary to s.6(1) of Criminal Justice (Theft & Fraud Offences) Act, 2001 (the Act of 2001). That provision states:
“A person who dishonestly, with the intention of making a gain for himself or herself or another, or of causing loss to another, by any deception induces another to do or refrain from doing an act is guilty of an offence.”
30. Count no. 2 charges an offence contrary to s. 8(1) of the Prevention of Corruption (Amendment) Act, 2001. Section 8 provides:
“(1) A public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person, shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding £2,362.69 or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or to both.
(2) In this section—
“consideration” includes valuable consideration of any kind;
“public official” means a person referred to in subsection (5)(b) of section 1 (inserted by section 2 of this Act) of the Act of 1906.”
31. Count no. 3 charges an offence contrary to s. 1(3) of the Prevention of Corruption Act, 1906 as substituted by s. 2 of the Prevention of Corruption (Amendment) Act, 2001. The substituted provision states:
“A person who knowingly gives to any agent, or an agent who knowingly uses with intent to deceive his or her principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his or her knowledge is intended to mislead the principal shall be guilty of an offence.”
32. Section 4(1) of the Criminal Justice Administration Act of 1924 provides:
“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
33. Finally, s. 7(1) of the Criminal Law Act 1997 states:
“Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender.”
Decisions on the Motion
34. Although counsel for the appellant sought to argue that the first additional ground that his client was seeking to rely upon (ground (f)) had potential implications for all three of the counts on foot of which his client was convicted, we are satisfied that in respect of the convictions on count no. 2 and count no. 3, respectively, it can have no relevance and any suggestion to the contrary is untenable. In the case of count no. 2 and count no. 3, respectively, the conduct forming the actus reus of these offences was in this instance personally attributable to the appellant in his capacity as a member of An Garda Siochána, and was not therefore capable of being committed in an accessorial capacity to a principal who was not also a member of An Garda Síochána. That very point was made by counsel for the accused in a submission to the trial judge at the requisitions stage on day 8 of the trial when he stated:
“…your lordship outlined the terms of section 7 [of the Criminal Law Act of 1997(the Act of 1997)] in general terms but, in my submission, Judge, the jury has to be directed to the fact that, in fact, section 7 can only apply to count No. 1, and it cannot apply to counts 2 or 3 because nobody else could have carried out the acts relevant to count 2 and 3 because they’re specific to John J Synnott as a member of An Garda Síochána.”
35. The trial judge acceded to that application and readdressed the jury to tell them, after reading out again the terms of s.7 of the Act of 1997, that “… aiding only refers to count no 1. It does not refer to count no. 2 or 3”. Accordingly, the trial judge did exactly what she was asked to do by defence counsel and no further or follow up requisition was raised. In these circumstances, the appellant cannot now be allowed to argue the polar opposite to the position taken by his legal team at trial, namely that s. 7 of the Act of 1997 was in fact in some way potentially relevant to counts no’s 2 & 3, such that he should now be allowed to rely upon ground (f) in support of his appeal against his convictions on those counts. For this reason alone the Court will not allow ground (f) to be relied upon in respect of counts no’s 2 & 3 respectively.
36. In respect of count 1, the position is more complicated. The indictment against the appellant, in so far as count no. 1 is concerned, was undoubtedly framed as though he was a principal offender. In the pre-Act of 1997 days his participation, as alleged in the indictment which makes absolutely no reference to any co-offenders or accessories, would have been characterised as that of a principal in the first degree. He claims in this appeal to have had an unanswerable defence in respect of any potential criminal liability as a principal in the first degree, in circumstances where the prosecution did not offer, and had never been in a position to offer, any evidence that AXA Insurance Co Ltd was induced by his deception to do anything. His first point, therefore, is that the trial judge was wrong, in the teeth of that evidential deficit, to have refused him a direction on count no. 1.
37. While it was, and remains, open to the appellant to seek to make that case on foot of his original grounds of appeal, he faces the following difficulty. Arguably, the case against him was never in reality that he was a principal in the first degree, notwithstanding the terms of the indictment, but rather that his criminal liability was derivative. Certainly, that was the basis on foot of which a direction was refused, and it was also the basis on foot of which the case was allowed to go to the jury. If the case was properly allowed to go to the jury on the basis that he was potentially liable to be convicted either on the basis of being party to a common design, or as an accessory, notwithstanding the manner in which the indictment was framed, then there can be no substance to his complaint that he was wrongly convicted in the teeth of a manifest evidential deficit. If it was sufficient for the prosecution to have proved that AXA Insurance Co Ltd was induced by a deception on the part of a group of persons with whom the appellant was acting in common design, or alternatively to whom the appellant had rendered some form of relevant assistance, then the alleged evidential deficit simply did not exist.
38. Because he recognises this difficulty the appellant’s second point, which is not covered by his original grounds of appeal but which he now seeks to be allowed to make, is that the trial judge erred in “introducing into her charge a direction concerning the liability of any person who aids, abets, counsels or procures the commission of an indictable offence to be indicted, tried and punished as a principal offender”. In effect, he is seeking to be allowed to argue that he came to court prepared to meet one case i.e., that his liability was as a principal (a principal in the first degree in pre Act of 1997 terms), and found himself in fact being required to meet another i.e., that his liability was derivative (he was either a principal in the second degree or an accessory before the fact, in pre Act of 1997 terms).
39. An immediate difficulty for the appellant in seeking to make this case is that at no stage did his counsel seek a discharge of the jury and an adjournment of the trial on the basis that he found himself embarrassed or taken by surprise in terms of the case he was required to meet, nor indeed was the judge asked not to permit the case to go to the jury on the basis of derivative liability. Moreover, the only relevant requisition was confined, as has already been pointed out, to asking the judge to tell the jury that accessorial liability could only arise in respect of count no. 1, but that it could have no relevance to counts no’s 2 and 3, and that requisition was acceded to. Prima facie, in these circumstances, the Court should lean against allowing the first additional ground (ground (f)) to be pursued, unless the failure to do so would result in a fundamental injustice.
40. In so far as the fundamental justice of the case is concerned, it seems to us that it is necessary for this Court to critically analyse whether the appellant was in fact embarrassed or taken by surprise in terms of how his trial on count no. 1 unfolded, and as to whether there was a serious unfairness in how that trial was conducted, as the appellant now seeks to suggest there was, such as would justify this Court in allowing the appellant to rely upon his additional ground (f) in this appeal, notwithstanding the lateness with which it is being put forward and the failure to offer any cogent explanation either (a) for the gross delay in doing so, or (b) for why the point now sought to be relied upon was not raised at the trial itself.
41. The appropriate starting point is the indictment. Count no. 1 on the indictment is undoubtedly framed as though the appellant was himself the sole offender and participant. As already stated, there is no mention of there having been any other participant(s) with whom the appellant might have been complicit either in terms of having acted in concert with, or of assisting, or of being assisted by, such person(s).
42. An indictment performs a number of functions. It is a public record of the formal charge or charges preferred against an accused, and in respect of which the accused will be required to answer by pleading either “guilty” or “not guilty” upon arraignment. It is also the formal notification to the accused of the charges or charges that he/she faces, and in that respect in part fulfils the fundamental natural justice requirement of audi alteram partem which is an integral part of due process. An accused is entitled to know the case that he or she has to meet and as one aspect of that is entitled to expect that he or she will be informed in advance of the trial, and with some precision, of the charge(s) to be preferred against him or her. The indictment provides, or should provide, that information. It is for this reason that s. 4(1) of the Criminal Justice (Administration) Act, 1924 requires that an indictment should contain “a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”.
43. Another important function of the indictment is that it provides a template for the drafting of the issue paper to be given to the jury at the end of the trial. The issue for the jury’s decision on each count is always framed with reference to the indictment, with the wording of the charge being taken verbatim from the indictment in each instance.
44. Where a person is considered to have derivative liability for a crime with which they have been charged the indictment does not necessarily have to contain any statement to that effect. The law provides, in s. 7 of the Act of 1997, that a person “who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender”.
45. Accordingly the statement of offence in the indictment may simply specify the offence being alleged as though the accused were a principal offender, rather than pleading that the offence was committed on the basis of secondary participation. To take the example of count no. 1 in the present case, the statement of offence could have pleaded, as indeed it was pleaded, that the offence was one of “Causing loss by deception, contrary to Section 6(1) of the Criminal Justice (Theft & Fraud Offences) Act, 2001.”. Equally, however, it might have been pleaded as one of “Aiding and abetting the causing of loss by deception, contrary to Section 6(1) of the Criminal Justice (Theft & Fraud Offences) Act, 2001.”
46. In so far as particularisation is concerned, it is also not mandatory that the “particulars of offence” should specify that it was committed by secondary participation. In discussing the analogous provision to s. 7 of the Act of 1997 in the neighbouring jurisdiction, Blackstone’s Criminal Practice (2000 edition) states, at para D9.12, that:
“When indicting a secondary party to an offence (i.e. an aider, abettor, counsellor or procurer), there is no need to indicate, either in the statement of offence or particulars, his role. This convenient rule flows from the Accessories and Abettors Act 1861, s.8, which provides that: ‘Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender’ (emphasis added). The usual practice is to take advantage of the 1861 Act and employ the same form of words in indicting a secondary party as would be used against a principal offender. There is, however, no objection to an express allegation of aiding and abetting, and it may be preferable so to draft if the circumstances are such that the accused could not possibly have been guilty as a principal offender (e.g., when the allegation is that a woman aided and abetted a man to commit rape; or that one entitled to drive aided and abetted another to drive while disqualified). In such cases, the precedent for a count against a principal offender may be adapted by prefixing the statement of offence with the words ‘Aiding and abetting’ and by inserting in the particulars ‘aided and abetted [name of principal offender] to … ‘. Where the prosecution are unsure of the precise role played by the accused it is permissible to allege aiding, abetting, counselling or procuring in the alternative in one count (Ferguson v Weaving [1951] 1 KB 814).”
47. These views are echoed in Archbold on Criminal Pleading, Evidence and Practice, (2014 edition) which states, at para 18.32, that:
“It is usual to indict secondary parties, within the Accessories and Abettors Act 1861, s.8, as principals. No objection could be taken to an indictment in such form, but it is desirable that the particulars should bear some relation to the realities, making it clear, if it be the case, that the defendant is alleged to be an accessory: see DPP for Northern Ireland v. Maxwell, 68 Cr.App.R. 128 (per Viscount Dilhorne, at p. 143; per Lord Hailsham, at p. 147; per Lord Edmund Davies, at p. 150); R. v. Gauglian, 155 J.P. 235, CA; and R. v. Taylor, Harrison and Taylor [1998] Crim.L.R. 582, CA. But there is nothing to prevent the indictment alleging participation as a principal where the prosecution case is advanced on alternative bases of participation as a principal or as an accessory: Gaughan, ante.”
48. We are satisfied that while count no. 1 on the indictment, as preferred, was technically compliant with the rules of pleading it would have been preferable if the particulars thereto had in fact made clear the basis on which the prosecution was seeking to have criminal liability attributed to the appellant.
49. We recognise however that this might not have been particularly easy in that the prosecution wished to present the case to the jury on the basis that they could convict in one of two alternative ways.
50. As they conceived it, it was open to a jury on the evidence to regard the appellant as being a primary offender i.e., party to a common design with Beverley Redmond, Lorraine Quinlan and Joe Redmond to cause loss by deception, and to convict the appellant by application of the normal rules relating to joint enterprise.
51. However, the case was also being put forward on the alternative basis that it was open to a jury on the evidence to take the view that even if they could not be satisfied beyond reasonable doubt that the appellant was a party to the tacit agreement between Beverley Redmond, Lorraine Quinlan and Joe Redmond underpinning what was clearly a common design on their part, he had nevertheless aided and abetted those parties by providing material assistance to them in carrying out their common design.
52. A more satisfactory indictment, accommodating the alternative bases on which the case was being advanced, might have looked like this:
Statement of Offence
Causing loss by deception, contrary to the provisions of s. 6(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001
Particulars of Offence
John J Synnott between the 9th of September, 2007 and the 7th of November, 2007 (both dates inclusive), within the State, while acting in common design with Beverley Redmond, Lorraine Quinlan and Joe Redmond, dishonestly, and with the intention of making a gain for himself or another or others, and by deception, induced AXA Insurance Co Ltd to pay financial compensation in respect of an alleged road traffic accident at Newtown Road, Wexford on the 9th of September, 2007 thereby causing loss to the said Axa Insurance Co Ltd; alternatively aided and abetted the said Beverley Redmond, Lorraine Quinlan and Joe Redmond in the carrying out of a common design on their part to do so.
53. Our view therefore is that the indictment actually preferred, though not bad per se, was suboptimal in terms of its function of communicating to the accused the nature of the case that he was required to meet.
54. However, the contents of any indictment are not to be considered entirely in a vacuum. Rather, for any accused facing trial on indictment to appreciate the full implications of the charge(s) laid against him, it is necessary for him to consider the indictment in the context of the Book of Evidence also served on him in advance of the trial. The Book of Evidence outlines the evidence that the prosecution intends to adduce in support of its case and in that way informs the accused, either expressly or by necessary implication, of the precise manner and means by which the prosecution will seek to prove that he committed the crime(s) with which he has been charged.
55. In the present case, the evidence presented in the Book of Evidence was only ever consistent with derivative criminal liability in so far as count no. 1 was concerned. It never contained anything to suggest that AXA Insurance Co Ltd had actually been induced by the appellant’s personal acts of deception i.e., the procuring of the creation of a false PULSE incident report and the submission of a false T.A.P.R., to do something that had resulted in loss to them. On the contrary, the Book of Evidence had heavily emphasised the value of the appellant’s acts of deception as potential supporting evidence for the false insurance claims made by Beverly Redmond and Lorraine Quinlan, respectively, in the event of the insurer concerned seeking verification of the fact of the accident. It also disclosed the happenstance that no such enquiry was in fact made, and that therefore the false supporting evidence created by the appellant did not need to be availed of. We are therefore strongly of the view that, notwithstanding the terms of the indictment, the defence would have had good reason to anticipate that the case to be answered would be based upon derivative liability.
56. It is then necessary to consider the actual run of the case, starting with counsel for the prosecution’s opening speech. Regrettably, there was no attempt by prosecuting counsel in his opening speech to the jury to explain the legal basis on foot of which criminal liability was to be attributed to the appellant on account of his actions. There was no mention of either of common design or of s.7 of the Act of 1997. However, by the same token, the case was not presented to the jury on the basis that the appellant’s actions had to be viewed on a stand alone basis in so far as count no. 1 was concerned, i.e., as though he were a principal in the first degree. Rather, counsel had simply outlined to the jury the evidence that the prosecution intended to adduce, and had commented, inter alia, that:
“…ultimately the essence of the case that you have to concentrate on is the evidence that links Garda Synnott to this inappropriate behaviour and as I say it’s not always obvious in a primary way, the way I outlined to you earlier, that that is so. But when you — when you get into the evidence and when you examine it, and I invite you to do so, you’ll see that when the strands come together they come together very tightly and they indicate a connection between Mr Synnott and these fraudulent activities that, in my submission to you, could be established beyond a reasonable doubt.”
57. There was no objection to the opening by counsel for the defence, or indeed any indication that a problem in meeting the case was perceived at that stage.
58. The evidence adduced by the prosecution was then duly led, and cross-examined upon, in accordance with the Book of Evidence, and at various times in this phase of the trial, in between witnesses, defence counsel made the several formal admissions on behalf of his client alluded to earlier in this judgment.
59. Then at the end of the prosecution case, counsel for the defendant applied for a direction on all counts. In so far as count no. 1 was concerned he referred to the indictment, and alleged an evidential deficit with respect to an essential proof on the basis that there was no evidence before the jury that AXA Insurance Co Ltd had been induced to act to their detriment by any deception perpetrated by his client.
60. In response to this, counsel for the prosecution made the following submission:
“MR McDERMOTT: … Clearly the prosecution has identified the main perpetrators – I can call them that – as Joseph Redmond, otherwise known as Danny Lynch, Beverley Redmond, Lorraine Quinlan, and I submit in that regard that Joseph Mr Synnott’s involvement can be looked at from two perspectives: either as a person who is fully involved in the offence, primary offender …
JUDGE: Mm-hmm?
MR McDERMOTT: Or a person who, pursuant to section 7 of the Criminal Law Act of 1997, is a person who aids and abets the commission of an indictable offence, and of course under section 7 of the Criminal Law Act of 1997 any person who ‘aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender’.”
61. If it had been in some way unclear up to that point on what legal basis the prosecution were seeking to attribute criminal liability to the appellant, the position was entirely clear once this submission was made.
62. Despite this, and crucially in this Court’s view, there was no protest from counsel for the defence that he was taken by surprise, or embarrassed in the conduct of his client’s defence. On the contrary, his only rejoinder was to suggest that the evidence, such as it was, did not support the prosecution’s contentions of complicity on the part of his client. He never suggested a failure on his part to appreciate that a case based on complicity, and potentially giving rise to derivative liability, was being made all along. Moreover, when he was refused a direction on count no. 1, and the trial judge indicated that she was going to allow the matter to go to the jury in circumstances where she believed that s.7 of the Act of 1997 was relevant, he did not object or seek either a discharge of the jury, or even an adjournment, on the grounds of professional embarrassment or being taken by surprise. Rather, his only application was for 20 minutes to take instructions concerning whether or not his client wished to go into evidence. In the event his client did not give evidence.
63. The trial then proceeded into the speeches and charge phase. In the course of the closing speech on behalf of the prosecution the jury were expressly told, at different points, that “the prosecution allege that JJ Synnott aided and abetted Mr Redmond and his cohorts in the commission of a deception against AXA which we all know occurred” and that “it’s the prosecution case that, rolling all the strands of the evidence together, it becomes very clear that Mr Synnott was involved in the deception upon AXA and rendered that deception material assistance in the formation and delivery of false reports upon which the insurance company it would be known would be placing reliance upon.”
64. While this speech does not expressly concede the abandonment by the prosecution at this point of a case based upon common design (indeed it was very unlikely that they would do so as the speech had immediately followed on from the direction application in which it had been expressly submitted that on one view of the evidence a finding of common design was potentially open), it clearly indicates the prosecution considered that the evidence more readily suggested that the accused had acted in an accessorial capacity rather than as a principal who was party to a common design.
65. The prosecution’s closing speech was followed by the closing speech on behalf of the defence. The defence speech concentrated on the charge as framed in the indictment and, as the following passages indicate, it sought to persuade the jury that there was an evidential deficit in the prosecution case:
“So, Joseph Redmond, Beverly Redmond, Lorraine Quinlan and, if he is a person other than different to Joe Redmond, if a Danny Lynch exists, all of them were involved in trying to perpetrate a fraud on AXA, and AXA accepted what they say without question and paid out and they paid out to Lorraine Quinlan and Beverly Redmond or Beverly Redmond and Joseph Redmond in fact the cheque was made out. And it is quite clear that they did so, and the evidence is absolutely clear, they did so totally relying on what was told them by those three people over the telephone. They did not rely on anything else. They didn’t concern themselves with anything else. They did not ever check with the guards as to whether such an accident occurred. They never made a phone call to the guards. There was never an enquiry of any kind from the guards. They just took what they were told by Joseph and Beverly Redmond and Lorraine Quinlan and on the basis of that they paid out the two cheques.
Now, what that means is that JJ Synnott did not feature in this in any way. Anything he did, any report he put in had no bearing at all on anything that AXA did, no bearing at all because both the PULSE report was just made, it was recorded and that was it. It was never called up again. The accident report, that just was put away. Now, had a call come in to the garda station and had either of those reports been looked up and had JJ Synnott had been called in and said what do you know about this, and had he come up with some kind of a cock and bull story about it, then of course he would have been taken some part and maybe have had some effect in what subsequently happened, the payout, but nothing remotely like that ever happened and we have the clearest evidence that you could ask for straight from the mouth of the various AXA representatives that they paid out in good faith based on what they were told over the telephone by these three people. We have further evidence that at no stage did AXA make any check of any kind with the guards in relation to this accident. They relied totally on what was said to them. So, nothing, they weren’t even aware of the existence of JJ Synnott or of any reports, and they in no way placed any reliance on anything that he may have done, and therefore the existence or nonexistence of a report had absolutely nothing to do with their decision to pay out the sums that they paid out to these three fraudsters.”
…
“Now, if we look at the individual charges, the extent of just how far the prosecution are reaching, and I say overreaching in this case, starts to become very clear. The statement of offence number 1, the particulars of the offence: “John J Synnott, between the 9th of September 2007 and the 7th of November 2007, within the state, did dishonestly, with the intention of making a gain for yourself or another by deception, induce AXA Insurance to pay financial compensation in respect of an alleged road traffic accident at Newtown Road, Wexford, on the 9th of September 2007, thereby causing another loss.” Now, has the word “induce” lost all its normal meaning? I always thought the word induce meant that I do something that causes somebody else to do something. In this case AXA, and it’s their evidence, have made it as clear as day that they paid out on that fraudulent claim based entirely on the phone calls they had with Joseph Redmond, Beverly Redmond and Lorraine Quinlan. They have also said clearly they never checked it. They never made any approach to the guards about this accident to check it out. They were totally unaware of any reports that had ever been put in and they most certainly did not rely on any such reports. How then could they be induced to pay out by reports of whose existence they were totally unaware? It doesn’t make sense in simple English, that first charge. They were not induced by anything JJ Synnott did to do anything. They were unaware of the man’s existence, not to mind any report. They paid out purely on the basis of what they were told by those three fraudsters.”
66. While the passages just quoted make clear that the main focus of the defence speech was on the claimed evidential deficit, it is noteworthy that it did engage to a limited degree with the suggestion of derivative liability, as the following further passage illustrates:
“And what I am saying to you here is you have a block of evidence about three frauds, and we have heard them on tape. We have seen the transcript. We have seen how they did it. We have seen how they got the money. And on the other hand you have two reports put in by JJ Synnott, and they were never acted on. They never had any effect on AXA or on anyone else. They were never used until this case came up. And there is an attempt to somehow connect JJ Synnott with this obvious fraud just on the basis that he had known Joseph Redmond over the years and that there was continuing phone messages between them. Now, I would submit to you, ladies and gentlemen, that if ever there was a complete lack of evidence to draw such a connection, it is there. That evidence could have been supplied by incriminating texts, emails, things that JJ Synnott admitted, anything like that, or if there had been others said anything about him. But there isn’t a scrap of evidence. This is a creation of somebody who decided to connect JJ with this fraud but purely on the basis that he had put in this report which was never acted on.”
67. Counsels’ closing speeches were then followed, as is always the case, by the trial judge’s charge. In the course of that charge the jury were, inter alia, given an explanation of the ingredients of each offence and were then told:
“Ladies and gentlemen, you will be given an issue paper with these charges on it so you will be able to peruse them. Now, ladies — ladies and gentlemen, any person who knowingly aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried, and punished as a principal offender. So, if you knowingly aid, abet, counsel, or procure the commission of an indictable offence then you will be treated as the same as the person who actually performed the — the — the offence. So, you — he’ll be tried and punished as a principal offender.”
68. As previously stated, no objection was raised to this direction at the requisitions stage, save for a request that the trial judge should re-address the jury to tell them that in so far as s.7 of the Act of 1997 might have a relevance, it could only be potentially relevant in the case of count no. 1. It was never suggested that the trial judge had been wrong to tell the jury about s. 7 of the Act of 1997, or that she had been wrong in allowing the jury to consider if the evidence justified the attribution to the appellant of derivative criminal liability, and specifically liability as an accessory.
69. Having considered all aspects of this case, including the pleadings, the likely evidence flagged in advance of the trial, the evidence actually adduced, the submissions made by counsel on both sides at various points in the trial, the trial judge’s various rulings, and the overall run of the case, we are completely satisfied that any suggestion that defence counsel might have been embarrassed or taken by surprise in having to meet a case based on derivative criminal liability is untenable. We are therefore of the view that the interests of justice do not require that the appellant should be allowed to rely on the first additional ground (ground (f)) that he now seeks leave to advance on foot of his motion. Rather, having regard to his gross and inordinate delay in seeking to raise this issue as a ground of appeal, coupled with his failure to raise it at the trial, we are not disposed to allow him to do so, and refuse to grant the leave sought.
70. In so far as the second additional ground (ground (g)) is concerned, counsel for the appellant acknowledged that it was difficult for him to seek to advance the complaint now made in circumstances where no complaint had been made in requisitions that the trial judge had failed to adequately put the defence case to the jury, and the point was being raised for the first time nearly five years after the trial. Counsel stated that he was only seeking to press the point with respect to count no. 1 and in so far as the defence had been contending that their was an evidential deficit with respect to the required ingredient of inducement. He conceded in the course of an exchange with the Court at the appeal hearing that if he was right that there was an evidential deficit with respect to the inducement requirement he should have succeeded in his application for a direction, a matter covered by the original grounds of appeal, whereas if he was wrong then he had no valid basis on which to complain about the trial judge’s charge. In circumstances where that is so, and in circumstances where no cogent explanation has been put forward as to why the complaint now sought to be made was not included in the original grounds of appeal, or even raised in requisitions, we do not consider it appropriate to allow this proposed additional ground to now be relied upon. We are satisfied that refusal of the leave sought in respect of ground (g) will not result in a fundamental injustice in the circumstances of the case.
71. We will now, therefore, proceed to address the grounds of appeal that were originally lodged. In doing we propose grouping grounds (a) (b) and (c) together under the heading “complaints based on the refusal of directions”, and grounds (d) and (e) together under the heading “complaints in respect of the trial judge’s charge.”
Grounds (a), (b) and (c) – Complaints based on the refusal to grant directions.
72. In so far as the failure to grant a direction on count no 1 is concerned, we are required by the appellant to address an number of specific assertions. First, he suggests that there was no evidence before the court that AXA Insurance Co Ltd had been induced by any act or omission of the accused to pay financial compensation to anybody. In our view this argument is misconceived. To make it at all is to miss the point, or perhaps to deliberately ignore it, that the case against the appellant was at all times based upon derivative liability, either on the basis that he had acted in common design with Beverly Redmond, Lorraine Quinlan and Joe Redmond, alternatively had assisted or encouraged them in their common design. If, as was the case, it was open to the jury on the evidence to regard the appellant either as having participated in a common design to cause loss by deception, or alternatively as having provided assistance or encouragement to others who were acting in concert to that end, then once there was evidence that AXA Insurance Co Ltd had been induced by a deception committed by any participant in the common design to pay financial compensation to anybody, it was sufficient to allow the matter to go to the jury. There was such evidence.
73. It was also contended that there was no evidence before the court of any dishonesty on the part of the accused. However, there manifestly was the basis for an inference of dishonesty in that the appellant had expressly admitted submitting reports (both oral and in writing) that he knew to be false in respect of an alleged accident, and having regard to the evidence as to the relationship, and recent contacts, between him and Joe Redmond who was in turn connected to both parties involved in the alleged accident and who had received insurance payouts.
74. It was also submitted that there was no evidence before the court that the accused had engaged in deception or that AXA had been deceived by the accused. Once again these submissions are simply untenable where the case made against the appellant was at all times based upon derivative liability and there was at least some evidence to support possible involvement in a joint enterprise to cause loss by deception, alternatively the aiding and abetting of others acting in concert to that end.
75. It was submitted that there was no evidence of fraudulent intent on the part of the accused. Once again, while it was a circumstantial case, the available evidence, viewed at its height, manifestly was capable of supporting an inference of fraudulent intent.
76. It was further submitted that there was no evidence that the accused had aided, abetted, counselled or procured any person to induce AXA to pay financial compensation to anybody. While s. 7 of the Act of 1997 still uses the old language of aiding, abetting, counselling or procuring it is beyond peradventure that it is sufficient to establish accessorial liability in respect of acts committed before the fact if assistance or encouragement has been rendered to a principal offender. There was clear basis for inference on the evidence adduced by the prosecution that the appellant’s actions were intended to create a paper trail that could provide supporting evidence for the false insurance claims made by Beverly Redmond and Lorraine Quinlan, respectively, in the event of the insurer concerned seeking verification of the fact of the accident. The fact that the insurers concerned did not in fact query the validity of the claim, and the false supporting evidence created by the appellant was not availed, is neither here nor there.
77. We are satisfied in the circumstances that count no. 1 was properly allowed to go to the jury and that the trial judge was correct to refuse the application for a direction in respect of it.
78. In so far as the failure to grant a direction on count no. 2 is concerned, the appellant firstly complains that there was no evidence before the court that the accused knew that any representation made by him was false or that the information provided by him for official record purposes was false. These contentions can be readily rejected in circumstances in which there was evidence that the appellant himself had prepared and submitted the T.A.P.R., in respect of the alleged accident on the 9th of September, 2007, which document had expressly asserted that he had attended at the scene, and where in the course of the trial a formal admission was subsequently made on his behalf that he had not in fact attended the scene of any road traffic accident on the date in question.
79. It is further complained that there was no evidence before the court that any representation made by him, or information provided by him, was for the purpose of advantage of himself or another. Again, while the case was based on circumstantial evidence, there was nevertheless a possible basis for inferring that what was done was done for the purpose of advantage to himself or another. Specifically, it was the prosecution’s case that the false reports were intended to create a paper trail that could provide supporting evidence for the false insurance claims in the event of the insurer concerned seeking verification of the fact of the accident.
80. We are satisfied in the circumstances that the trial judge was also correct to allow count no. 2 to go to the jury, and to refuse a direction in respect of it.
81. In so far as the failure to grant a direction on count no. 3 is concerned, the appellant complains that there was no evidence before the court that the accused had intended to deceive or mislead his principal or any other person, or that he knew that the report of a road traffic accident was false. Once again, we are completely satisfied following a consideration of all of the evidence adduced before the jury that there was an adequate basis on foot of which an intent to deceive might have been inferred. Moreover the reference to “a report of a road traffic accident” in the particulars of offence pleaded with respect to count no. 3 relates to the “document” referred to in the immediately preceding clause and therefore refers to the appellants own report, i.e., the T.A.P.R., rather than the anonymous telephone report of the accident that he claimed to have received. As previously noted, it was falsely asserted within the T.A.P.R., which the appellant himself had prepared, that he had attended at the scene, yet a formal admission was subsequently made on his behalf at the trial that he had not in fact attended at the scene. In the circumstances the contention that there was no evidence that he “knew” that his report was false must inevitably be rejected.
82. We are satisfied in the circumstances that count no. 3 was properly allowed to go to the jury and that the trial judge was correct to refuse the application for a direction in respect of it.
Grounds (d) and (e) – Complaints in respect of the judge’s charge
83. In support of ground (d) which alleges that the trial judge failed to properly charge the jury in respect of the correct interpretation of count no. 1 on the indictment the basic complaint appears to be that no explanation was given of what it means to “induce” a party to do something to their detriment. It is specifically complained that the term “induce” has a meaning at law that was not explained to the jury adequately or at all. The suggested meaning, as appears from a requisition raised by the defence, is that which applies in contract law in the context of a misrepresentation, namely that the party concerned was caused to rely upon the misrepresentation to their detriment, and that for the existence of an inducement to be proven there has to be evidence of reliance on the statement at issue.
84. We have considered in detail the terms of s.6(1) of the Act of 2001 and are completely satisfied that the word “induces” as it appears is not a term of art. There is no special statutory definition of it, nor is there anything to suggest that it has any different meaning to its natural and ordinary meaning. It is the active voice of the present tense of “to induce” which in turn means in ordinary usage to persuade, influence or lead a person to do something. The rules of statutory construction require that words should be afforded their natural and ordinary meaning unless the contrary is expressly indicated. There is no such indication here. Be that as it may, we do not in any event consider that that is much different from the meaning suggested by counsel.
85. In circumstances where the word “induce” was to be afforded its natural and ordinary meaning, and it is indeed a common enough word, it begs the question as to whether much explanation at all of it was required by the trial judge in the course of her charge. Beyond reading s.6(1) of the Act of 2001 to the jury she initially provided little explanation of the provision at all, stating that;
“It means as it reads, ladies and gentlemen; there’s nothing strange about that charge. You can — if you’ve any difficulty understanding it come back to me but it is quite plain what is required. The accused is required to have acted dishonestly with — with intention of making a gain for himself or another by deception of — of AXA and in — and thereby inducing AXA to make a payment.”
86. It was following on from this that the trial judge was requisitioned by both sides to provide some further explanation of certain of the words or phrases used in the subsection at issue, and in the case of the defence, specifically in relation to the meaning of the word “induced”. The judge was not opposed in principle to giving some degree of further explanation of the ingredients of the offence created by the subsection, and indeed did provide further explanation of “deception”, but did not do so in respect of the word “induced”. The reason for this is clear from the transcript. Defence counsel’s application was not so much that the word “induced” required specific explanation, although he did ask for that, inter alia. However the main focus of his requisition was that because of his belief that the concept of inducement had to be approached in the same way as it is in contract law, he wanted the trial judge to specifically tell the jury that they had to disregard any evidence from the witnesses from AXA Insurance Co Ltd as to that company’s decision to pay out on the claims of Beverly Redmond and Lorraine Quinlan in circumstances where there had been unequivocal evidence that AXA Insurance Co Ltd were completely unaware of any statements/reports made or created by the appellant. The trial judge was firmly opposed to doing that and stated, correctly in our view, that:
“JUDGE: I don’t think — I don’t think I can do that. I think I’m interfering with the jury’s function if I do that.”
87. The evidence of the AXA witnesses would not have been relevant had the jury been confined to considering the case against the appellant on the basis that he was a principal in the first degree. However, they were not so confined, and were at liberty to consider possible criminal liability on the part of the appellant on a derivative basis. In those circumstances the evidence from the AXA witnesses, being otherwise admissible, was indeed relevant and potentially probative and it would not have been correct of the trial judge to tell the jury that they were obliged to disregard that evidence.
88. Having so ruled, the trial judge ultimately elected not to give any further explanation to the jury of the word “induced”, indicating that she believed that it was not required. She stated in that regard:
“JUDGE: I — I think I’ll leave it at that and because I think the — the word “induced” is a commonly used word and can be understood by the jury. I’m going to leave it at that …”
89. We are satisfied that the trial judge gave the matter due consideration, and that the decision that she made was within the scope of her legitimate discretion. We are not convinced that any further explanation was in fact called for.
90. There is a further complaint made in support of ground (d) that “the standard of proof in respect of a criminal charge is higher than in respect of a civil matter, and the jury were not so charged in respect of the accusation that the accused “induced” AXA to pay out financial compensation”. We regard this complaint as completely without foundation. The jury were never led to believe at any stage that anything other than the criminal standard of proof applied to each and every ingredient of the s.6(1) offence.
91. Finally, in relation to ground (e) which alleges that the trial judge failed to charge the jury that they might only return a verdict of “guilty” if each element of each offence was proved beyond reasonable doubt, and failed to direct them as to the relevant parts of each offence, we are satisfied that these complaints are not borne out by the transcript. The judge charged the jury clearly, carefully and correctly in general terms both as to the onus and standard of proof in a criminal case. She also read out the statutory ingredients of each offence identifying the relevant components and, having done so, towards the end of her charge further instructed the jury as follows:
“Now, ladies and gentlemen, all criminal offences have two necessary and essential elements. One, there is the crime itself, that’s the act that has been done which is the case of the actual in this — the actual robbery or carrying a firearm or in this case, as is alleged, cause loss by deception, the actual causing — the — the act of the causing contrary to the provisions of section 3(1) being corrupt in office and using a document containing a false statement in which a principal is interested. They are the acts. That’s — that’s the first part of a criminal offence but the second essential element is the criminal intent and that is the intention to do that is the intention in order to carry out and it’s called mens rea. Both of these elements must be present; so the act of doing the offence and the — also the intention to do the — the — the crime. You must be satisfied there that a person accused of a criminal offence not only committed the criminal act but at the time he committed it he had the necessary criminal intention to do so. Intent is present where the purpose of the accused is to engage in the conduct — conduct to which he regarded it’s not always easy to see what a person intended. You can’t get inside a person’s mind. Where a person is presumed to have intended the natural and probable consequences of his actions the onus of establishing intent beyond reasonable doubt is vested to the prosecution.”
92. We are satisfied from all of this that the jury would have fully understood how to analyse the evidence with respect to each charge, and that they would have clearly understood that each ingredient, comprising either the actus reus or the mens rea of the offence, required to be established by the prosecution to the standard of beyond reasonable doubt.
93. In the circumstances we are not disposed to uphold ground (e).
Conclusion
94. In circumstances where this Court has found itself unable to uphold any of the appellant’s grounds of appeal against his conviction, that appeal is dismissed.
People (DPP) v McKevitt
[2018] IECA 188
JUDGMENT of the Court delivered 24th of April, 2018 by Mr. Justice Edwards.
Introduction
1. The appellant appeared before the Central Criminal Court on the 28th of April 2014 and pleaded not guilty to a single count of murder contrary to common law; the particulars of the offence being that the appellant did, on the 17th day of October, 2012, in the County of Tipperary murder one Shane Rossiter.
2. The matter proceeded to trial and on the 5th of June 2014 an eleven person jury, by a majority of ten to one, found the appellant guilty of the murder of Shane Rossiter. The appellant was sentenced on the same date to life imprisonment backdated to the 11th of December 2012.
3. The appellant now appeals against his conviction.
Evidence relevant to this appeal
4. The deceased, Mr. Shane Rossiter, was born on the 13th of February 1983 and was 29 when he was killed. On the 17th of October 2012 there was a house party at 3 Church Lane, Golden, Co. Tipperary involving a small group of people including the deceased. During the house party there was a degree of illicit drug use. The individuals present included a Mr. Paul McCarthy, a Ms. Siobhan Murphy, a Mr. Andrew Heaphy and the deceased man, Mr Shane Rossiter.
5. In the early hours of the morning of the 17th of October, the deceased man and Mr. Paul McCarthy went out the front door of the premises in the belief that the appellant would be there to deliver cannabis to them. Mr. McCarthy told the jury that “I walked out of the house, there was a car parked there, and I seen a gun and I ran.” Pressed on what exactly he saw, he said: “A car parked there, two fellows sitting in the car and a gun came out the window and I ran” He said the car was “just a footpath away” from the house. He couldn’t say what colour the car was, other than to say it was dark. He couldn’t say if the gun had come out through the driver’s window or the passenger’s window. However it had come out through a front window. He just saw the barrel of the gun. He had run, believing he was a target, and having crossed a field ended up in a graveyard. He heard one gunshot, and on hearing it he rang the emergency services.
6. The jury heard evidence that the deceased was in fact shot twice with a shotgun. Gardaí arrived on the scene and commenced an investigation. The following day, Thursday the 18th of October 2012, a burned out Audi A4 with the registration number 01-D-12430 was discovered at a bog in the Nire Valley, County Waterford. This was suspected to have been the car used in the shooting.
7. The appellant was identified as a person of interest at an early stage of the investigation. The appellant’s partner was Pamela Cahill, who was known to drive an Audi A4. The jury heard that an Audi A4, driven by a man believed to be the appellant, was captured on CCTV at a Tesco petrol station at approximately 6.30pm on the 16th of October 2012, which was about 12 hours before the murder. The jury was shown the relevant CCTV footage.
8. On the 18th of October 2012 the appellant attended Clonmel Garda station voluntarily along with his solicitor and made a statement. On the 11th of December 2012 the appellant was arrested in connection with the murder of Mr. Shane Rossiter and was detained from the 11th of December to the 15th of December 2012 at Clonmel Garda Station, where he was interviewed a number of times. In the course of being interviewed he confessed to having killed the deceased.
9. The jury also heard there was a history of violence between the appellant and the deceased, the appellant having stabbed the deceased seven years before. Upon his recent return to this jurisdiction after several years in Australia, the appellant became fearful that the deceased would exact retribution. He said in one his interviews that he believed that it was, for him, a case of “kill or be killed.”
Grounds of Appeal
10. There are 17 Grounds of Appeal listed in the Notice of Appeal. They are as follows:
(i) The trial judge erred in allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased.
(ii) The trial judge erred in allowing witness Pamela Cahill to refresh her memory in respect of the registration details of a motor vehicle.
(iii) The trial judge erred in ruling that the memorandum of an interview with the appellant on the 18th October 2012 was admissible.
(iv) The trial judge erred in ruling that the memoranda of interviews with the appellant during his detention from the 11th to the 15th December 2012 were admissible.
(v) The trial judge erred in allowing the prosecution to adduce as an item of real evidence the vehicle registration document of a motor vehicle bearing registration 01-D-12430.
(vi) The trial judge erred in allowing the prosecution to adduce as an item of real evidence data extracted from a mobile telephone device and SIM card alleged to have belonged to the deceased.
(vii) The trial judge erred in ruling that independent evidence which supported the reliability of assertions made by the appellant in interview could amount to corroboration of his confession.
(viii) The trial judge erred in failing to properly explain corroboration to the jury, it being a term of art, and further failing to distinguish corroboration as regards the reliability of the content of the memoranda of interview versus corroboration as regards the actual commission of the offences. The trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration.
(ix) The trial judge erred in refusing to discharge the jury in circumstances where the jury was directed with unnecessary force and repetition that suggestions made by counsel did not amount to evidence.
(x) The trial judge erred in directing the jury that the rights of society are balanced by the rights of an accused person without specifying that, if there is a conflict, the latter should take precedence.
(xi) The trial judge erred in directing the jury that, where evidence was not in dispute, it had effectively been proved.
(xii) The trial judge erred in implicitly indicating to the jury that the evidence of witnesses tendered by the prosecution carried less weight than that of witnesses directly-examined by the prosecution.
(xiii) The trial judge erred in failing expressly to direct the jury that the only evidence connecting the appellant to the alleged offence was his purported confession.
(xiv) The trial judge erred in failing to expressly to direct the jury that one of the main justifications for ensuring compliance with the Garda Custody Regulations was to prevent impropriety on the part of the Gardaí.
(xv) The trial judge erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.
(xvi) The trial judge erred in refusing to direct the jury that having a reasonable doubt about the propriety of the Garda conduct would demand an acquittal.
(xvii) The trial judge erred in allowing the jury, during the course of deliberating, to view CCTV footage in open Court in the presence of the Appellant.
Ground (i) – Evidence of Past Violence between the Victim and the Appellant
11. There was evidence in relation to a stabbing incident in 2005 in which the appellant stabbed the deceased repeatedly, almost killing him. This was mentioned by the appellant during the course of interviews with Gardaí. According to the accused’s own statements (not read to the jury), the deceased had raised the incident in conversations with him during the period leading up to the murder. In his confession, read to the jury, he acknowledged that he had begun to worry that the deceased would seek revenge:
As you know, there is a lot of serious history between the two of us. I’ll start about seven years ago, I’ve told you about those incidents over the past couple of days, it involved a stabbing and it escalated from there. It really took a turn for the worst this year, as I was aware that I was trying to be set up again. I was in fear for me kids, myself, I had no other choice, I was backed into a corner and I reacted like any other person would have. I know that if I didn’t do what I had to do, I probably wouldn’t be sitting here today. I received a phone call in the early hours of the morning asking would I drop Shane Rossiter a bit of hash, that he was on his own with his girlfriend and would I drop out the bit of hash and that I wasn’t going into the house, that there was only the two of us there. I knew it didn’t sound right, but I went out there anyway. Once I was out there a man I didn’t know came out in front of Shane Rossiter. I knew straightaway there was something gammy as he told me he was on his own there. They came out walking towards me zipping up their jackets. One fellow got close to the car and asked me what the crack was. Then I let a shot at Shane Rossiter. I was fully aware that he had a handgun and I expected that there was going to be shots exchanged and I wasn’t waiting to see. The other fellow that was with him ran off. I walked down through the car park just to make sure he wasn’t the one that had the gun. I couldn’t see him anywhere, so I walked back to the house, shot him again. It was I left then, I knew it was a case of kill or be killed. I left there then, and got rid of the car. I got into another car I had parked up the mountain. I went down to a mate’s down in Kerry.
12. There was also evidence, given by Ms Rachel Keating, that the appellant had been invited over to deliver a quantity of cannabis:
Q. Now, when Shane Rossiter was with you in the — in Cody’s bedroom, you’ve told the jury about that, did you at any time see him use a mobile phone?
A. Yes.
Q. And can you tell the jury about that?
A. He was speaking — as I can remember he rang Mossy and he rang him to look for a bag of weed.
Q. Now, how did you know that he was ringing Mossy to look for a bag of weed?
A. Because he had said that they were — like Siobhan and Paul and everyone they had all decided they were going to get a bag of weed off him or somewhere and Shane said he could get it off Mossy and so he rang Mossy to look for it.
13. In seeking to have the evidence of stabbing and illicit drug dealing admitted, the prosecution relied primarily on the case of The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669, submitting that the evidence was both relevant and necessary to the prosecution case
14. In relation to the stabbing the trial judge ruled as follows:
“The fact that the evidence tends to show the commission of other crimes does not render it inadmissible. The test to be applied is that of relevancy and necessity. And I hold, not least because of the statement of the accused man himself, that this all started with the stabbing incident in 2005, that that is background evidence which is admissible in the course of the trial to show what again was the genesis of all of these unhappy events. However, the – I would limit the evidence to the fact, if the evidence be there, I would limit it to the fact of the stabbing, and that it was a significant stabbing. And by that, I mean that it was such as to require hospitalisation. I think it would be trespassing into the area of undue prejudice were the evidence to go beyond that. Such as evidence referred by Mr Sammon before lunch, that the deceased nearly died. That is not, it seems to me, necessary for the complete picture, for the jury to have the complete picture, and does trespass into that area of being more prejudicial than probative.
15. Regarding the evidence of drug dealing she ruled:
JUDGE: I think in the context of explaining the sequence of events, that -that it is material and relevant that the jury know and they’ve already heard quite an amount about drugs, in any event, that — and even though it suggests misconduct, that it is important for them to understand that there was a conversation, that there was an invitation to Mr Power to come to visit Mr Rossiter in Golden. And that they shouldn’t be speculating about what that was about, and we can get rid of any potential speculation or questioning by the jury, by simply telling them what it was about.
16. The appellant submits that neither piece of evidence was necessary to the prosecution case and should therefore not have been admitted. He further submits that it was imperative that a carefully worded direction be given as provided for in The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669. Regarding the stabbing, the respondent submits that the trial Judge engaged in a sufficient balancing exercise, only admitting that which was necessary and probative and excluding unduly prejudicial evidence. The respondent submits that the evidence in relation to drugs was of significant probative value in explaining to the jury the reason for the appellant’s presence at the scene of the crime. Without such evidence the jury may have ventured into the realm of speculation. While the respondent concedes that the trial judge gave no special direction, they submit firstly that there was no need for one as there was no evidence that the appellant was a drug dealer and secondly, relying on The People (Director of Public Prosecutions) v Cronin (No. 2) [2006] IESC 9, as no such point was raised in requisitions it may not be raised on appeal.
Decision
17. In The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669 the former Court of Criminal Appeal had certified the following question of law for determination by the Supreme Court pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006:
“Is evidence of connected background history, which might disclose matters not laid down in the indictment and possibly prejudicial to the accused but which is essential or helpful to the jury understanding the charges actually laid in the indictment, admissible in a criminal prosecution?”
18. The Supreme Court held (by a majority of four to one) that background evidence, which might disclose matters not laid down in the indictment but which might have been in the book of evidence and which would be prejudicial to an accused, was admissible if it was so relevant to facts to be proved by the prosecution or defence and to be determined by the jury that it was necessary to render comprehensible such facts. It was admissible if, without such evidence, the facts would be incomplete or incomprehensible for a jury.
19. Following The People (Attorney General) v Kirwan [1943] I.R. 279 the Supreme Court further held that evidence that an accused had committed offences, other than that or those charged in the indictment preferred against him, was never admissible for the purpose of leading the jury to hold that an accused was likely, by reason of his criminal conduct or character, to have committed the crime in respect of which he was being tried. However, the mere fact that evidence adduced tended to show the commission of other crimes did not render it inadmissible if it was relevant to some issue of fact which the jury was called upon to determine. Moreover, and in that regard, O’Donnell J opined that it would be “a mistake to seek to determine the admissibility of evidence only on the basis that it is, or is not, included in an identified sub-category sanctified by precedent.” The correct test to be applied by the court in considering whether background evidence should be admitted was whether the evidence was relevant and necessary. The test was not merely whether it would be helpful to the prosecution to admit the evidence.
20. In her judgment, Denham C.J. indicated obiter dictum that, while a warning was a matter for the discretion of the trial judge, in general it would be wise for a trial judge to give the jury a warning as to the nature of background evidence, as to why it was being admitted and concerning the purposes for which it might and might not be used.
21. Dealing first with the admission of the evidence of the previous stabbing, the trial judge considered that this was both relevant and necessary to show what the judge described as “the genesis of all these unhappy events”. We completely agree. The accused had told the Gardaí that he believed it was a case of “kill or be killed”. It was necessary for the jury to appreciate the extent of the bad blood and animus between the appellant and deceased, to properly assess the actions and possible motives of the appellant, and also for that matter of the deceased . The trial judge adopted a very balanced and measured approach in only admitting evidence of the fact of the stabbing, and that it was serious in the sense of requiring hospitalisation, but no more than that. We are fully satisfied that his ruling in that regard was correct in principle and as a matter of law.
22. With respect to the admission of the evidence of the appellant’s participation in supplying cannabis we cannot see how the admission of that evidence could have been avoided in the circumstances of this case. It was absolutely central to how the appellant knew of the whereabouts of the deceased on the evening in question, it was relevant to opportunity, it was relevant to the relationship between the parties, to the alleged animus between the appellant and the deceased, and to a range of other issues. The trial judge felt it was necessary that the jury should have this evidence to avoid them speculating, and again we agree with him in that regard.
23. We also consider that the respondent makes the valid point that no requisition was raised concerning the fact that the trial judge did not give a warning to the jury along the lines recommended by Denham J. The respondent contends that such a warning was unnecessary in the circumstances of this case where the background evidence was so inextricably bound up with, and clearly relevant to, the central event such that it would have been obvious to the jury why they were receiving it, and the use to which it could be put. We are prepared to attribute weight to this view in circumstances where it did not occur to anybody on the legal teams that had listened to the judge’s charge that a warning was necessary and where nobody raised a requisition requesting a warning.
24. In the circumstances we are not prepared to uphold Ground of Appeal No. (i).
Grounds (ii) and (v) – Allowing Pamela Cahill to Refresh her Memory and Admitting the Registration Document of Motor Vehicle 01-D-12430
25. During Ms Cahill’s examination in chief, she was asked in relation to registration details of a car she had previously been the registered owner of:
Q. Now, I’m going to ask you about a motorcar that you told the guards that you were the registered owner of at some time in the past?
A. Yes.
Q. Do you recall that?
A. Yes.
Q. And what car was that?
A. A black Audi.
Q. And what model Audi was it?
A. A4.
Q. And do you recall now the registration numbers and letters of it?
A. I know it was 02 but I can’t really remember the rest of it.
Q. I’m sorry?
A. I can’t remember the rest of it. It was a 02.
Q. When you gave the guards a statement did you recall it then?
A. Probably.
Q. You gave them the number?
A. Yes.
26. The prosecution then sought leave to allow Ms Cahill to refresh her memory from the record of her statement to the Gardaí. Counsel for the appellant objected on the basis that what he characterised as “the provenance” of her recollection had not been properly established. It was submitted that it had not been established that in so far as her statement to the Gardaí contained a registration number that that number had been provided unprompted by the witness as a genuine recollection from memory, and had not been suggested to her by the Gardaí in the manner in which they had phrased their enquiries. The trial judge was disposed in light of the concern raised, and before ruling on the issue, to allow counsel for the appellant to cross-examine the witness about how the registration number came to be in her statement. That cross examination gave rise to the following exchanges:
Q. And when the guards came to you about the car were you able to — the number appears in your statement?
A. Yes.
Q. And it can have got there in two ways I suppose. One is that you could remember the number at the time and gave that to the guards?
A. Yes.
Q. Or that the guards had said we’re enquiring about a black Audi with this registration number, is that yours? Do you remember which of those two it was?
A. I don’t really remember, no.
27. The trial Judge ruled as follows:
It appears to me to be somewhat unreal to — where issues such as numbers or identification numbers are concerned that people cannot be expected to remember, particularly in the modern era where you don’t have your county identification as we used to have in the old days and maybe four brief numbers, there are — increasingly it is more difficult to remember the registration numbers of one’s car and, as Ms Sammon has pointed out, even the current car that one might be driving. I think it is not unreasonable in the light of the evidence given by the witness that she, in answer to Mr Sammon, said that she gave the number to the guards at the time. In answer to Mr McGinn she said she didn’t know whether they said it to her or she said it to them. The question is what was the number of the car and I think in fairness it would be appropriate to allow the witness to refresh her memory from her statement on the basis that that is — that the fact of the ownership of that vehicle will be proved in due course independently of the witness’s recollection.
28. Counsel for the appellant maintains that the judge’s decision represented an error in principle and that the witness should not have been allowed to refresh her memory as to what she had said to the Gardaí. Counsel for the respondent submits that the trial judge’s decision represented a proper exercise of her judicial discretion.
29. We agree with counsel for the respondent. The objection raised by counsel for the appellant was misconceived. The issue raised had the potential to bear on the question of what weight, if any, the jury might attach to the witness’s recollection once refreshed, but it was not a valid basis for contending that the witness should not be allowed to refresh her memory. There was no potential unfairness in the proposed procedure. It was not disputed that the witness had made a statement to the Gardaí, which was recorded in writing. There was no dispute that the record was a contemporaneous or nearly contemporaneous one. It was not disputed that in that statement there was an assertion by the witness that she was the owner of a vehicle bearing a particular registration number. The witness was allowed to refresh her memory with respect to what that registration number was. The written record was at all times available to the defence. They were entitled to cross-examine her before the jury about her recollection as refreshed; and to suggest to her that she might have been prompted by the Gardaí during informal questioning before the taking of a formal statement from her concerning the registration number at issue; and to suggest that it was the case that she had in truth acknowledged and accepted ownership of a registration number suggested to her, rather than providing a registration number unprompted and from genuine recollection. She could have been asked how come she could purportedly remember the registration number in the course of giving her statement to the Gardaí, but could no longer remember it when it came to giving evidence in court. Her response to these, and other possible questions that might be asked of her in cross-examination, had the potential to impact on the weight that the jury might attach to her claim of recollection. The defence had full scope to explore these issues. However, the trial judge’s decision to allow the witness to refresh her memory was a legitimate exercise of her judicial discretion, and we see no legal basis for criticising her decision in that regard.
30. Later on at trial the prosecution called a Ms Theresa O’Grady. This lady had received in the post a motor tax book relating to a motor vehicle with the registration 01-D-12430 registered to a John Byrnes, who was not known at Ms O’Grady’s address. The trial judge allowed her evidence and the contents of the tax document to be adduced to the jury.
31. The appellant submits that Ms O’Grady should not have been permitted to read out the contents of the document because in circumstances where she is not the author, this offends the rule against hearsay. However the respondent rejects this, submitting that as the truth of the document was not sought to be relied on there was no breach of the rule against hearsay.
32. The relevance of the evidence was that vehicle registration records for the burned-out vehicle of interest, a Black Audi which Gardaí believed was owned by Pamela Cahill and had used by the appellant on the night of the shooting, purported to show that ownership of the vehicle had in fact been transferred to a Mr John Byrnes of 12 Ballybeg Park, Waterford, on the day before the shooting, i.e., the 16th of October, 2012. The Gardai believed that this Mr John Byrnes was a non-existent person, and that the registration of a transfer of ownership of the vehicle to this purported person was on the basis of a phoney sale and with a view to misleading Gardaí in their enquiries. The true occupier of 12 Ballybeg Park, Waterford was Ms O’Grady. Her evidence was that she lived at 12 Ballybeg Park, Waterford and was living there in the autumn of 2012 when a letter addressed to a John Byrne was delivered to her address through the post. She opened the letter and found it contained a motor tax book, and kept it for two weeks. No John Byrnes had ever lived at her house. Then two Gardaí came to her door and they asked for a John Byrnes. She informed them that there was no John Byrnes there but told them she had a letter for a person of that name and she gave them the opened letter with a tax book in it. This tax book was the document in controversy. The Gardaí wished to establish what the tax book in question purported to say about the ownership of the vehicle as a piece of circumstantial evidence in support of their case. In doing so they were not seeking to prove the truth of those contents. In fact it was their case that there was no such John Byrnes.
33. We unhesitatingly agree with the respondent that this evidence was admissible. As the prosecution were not relying on the truth of the contents of the tax book, and in fact were contending the very opposite, namely, that in so far as it recorded the ownership of the vehicle as being in the name of a Mr John Byrnes that that was in fact untrue, evidence of the contents of the tax book did not constitute inadmissible hearsay. As this Court has previously said in The People (Director of Public Prosecutions) v O’Mahoney [2016] IECA 111 :
“44. A document can potentially be used in evidence for one of three purposes. It might be adduced as real evidence, alternatively as original evidence or as testimonial evidence.
45. A document is a physical thing, and where its potential evidential value lies in its physical appearance or some physical characteristic that it has, it may be used as real evidence. What that means is that it is introduced so that the tribunal of fact may observe for itself the appearance or characteristic in question, and take account of it. So, for example, it might be relevant from an evidential point of view that a document is torn or damaged, or stained with some substance.
46. However, a document is also a medium of communication and if its potential evidential value lies not in its physical appearance or characteristics, but rather in its content, i.e, in the information that it contains and communicates, then it may be used either as original evidence or as testimonial evidence. This is because content may be of evidential value in one of two ways. The mere fact that the document has certain content, whether or not it is true, may sometimes be probative and relevant in and of itself. If the intention of the party adducing the document is simply to demonstrate that the document has certain content, but that party is not seeking to rely on the truth of that content, then it is correctly to be characterised as constituting original evidence. However, if the document is adduced for the purpose of relying both on the existence of its content and the truth of its content, then it is properly to be characterised as constituting testimonial evidence.
47. If the intention is merely to use the document as original evidence it is sufficient to establish in evidence, through an appropriate witness or witnesses, provenance, due execution and content.
48. If, however, the intention is to use the document as testimonial evidence, i.e., the party adducing it is relying on the truth of its contents, then in addition to establishing, provenance, due execution and content, it is necessary to go further and show that the ‘testimony’ contained within it is admissible in evidence. In that regard such ‘testimony’ is subject to the ordinary rules of evidence, including ‘the rule against hearsay’.”
34. The tax book in the present case was admissible as a piece of real evidence and its contents were admissible as original evidence. There was nothing inappropriate about Ms O’Grady being asked to read the contents to the jury in the circumstances. If the contents had not been read out to them the jury would have been entitled to inspect the exhibit in the jury room and read the contents for themselves in any event. The contents were not hearsay unless they were being relied upon as establishing the truth of the matter being asserted. That was not the purpose for which the prosecution introduced this evidence. It was introduced to show that there had been a purported attempt to transfer ownership of that vehicle into the name of a person called John Byrnes, who was not believed to exist. This was a piece of circumstantial evidence that the prosecution were entitled to rely upon in support of their case. Accordingly, the evidence did not breach the rule against hearsay.
35. In the circumstances we are not disposed to uphold either of grounds (ii) or (v).
Ground (iii) – Alleged wrongful admission of interview of 18th of October 2012
36. The evidence was that on the 17th, and possibly also on the 18th of October 2012, D/Garda Bergin called to the appellant’s home in an effort to speak with the appellant, but the appellant was not home. He subsequently called to the appellant’s mother in law’s home, and succeeded in speaking to her. She was unable to indicate the appellant’s whereabouts but said she would make an effort to put him in contact with the Gardaí.
37. Although D/Garda Bergin denied in his evidence (as did his colleague D/Garda Cooke) that the appellant was regarded as a suspect at this point, it is clear that the appellant was at the least a person of interest to An Garda Siochána. As D/Garda Bergin put it “[a]s a result of the incident that took place in Golden certain names came to the fore and in order to eliminate or include, as the case might be, persons that may or may not be involved I carried out enquiries in relation to contacting Mossy Power …[and another named party] .”
38. Later, at about 7.25pm on the 18th of October 2012, D/Garda Bergin received a phone call from the appellant, who stated that he would call to Clonmel Garda station later on that evening, and that he would be accompanied by his solicitor. Later at approximately 8.25pm on that evening D/Garda Bergin received a second phonecall, this time from the appellant’s mother, to say he would be there “shortly”. The Detective Garda, who was out on patrol, returned immediately to Clonmel Garda station, arriving there at about 8.30pm, to find the appellant waiting for him.
39. Although the appellant had pre-arranged to have his solicitor, Mr Eamon Hayes, present Mr Hayes did not arrive at the Garda station until a short time after the appellant had arrived. In the meantime, the appellant had a short conversation with members of the Gardaí then present. The appellant was neither arrested, nor detained. Upon Mr Hayes’s arrival the appellant voluntarily made himself available for interview and was formally interviewed. This interview was conducted in an interview room by both Detective Garda Bergin and Detective Garda Cooke. It was not video-recorded, although video recording facilities were available. Detective Garda Bergin and Detective Garda Cooke both contended that the appellant had been offered a video recording of the interview but declined. This was strongly disputed by the solicitor. Be that as it may, a written note or memorandum of the interview was taken by one of the interviewing Gardaí and the interview was conducted in the presence of the solicitor.
40. The interview commenced at 9.05pm with the administration of the usual caution to the appellant, and that was followed by the following exchanges: Question: “Do you understand that you are free to leave the garda station at any time and that you are not under arrest?” Answer: “Yes.” Question: “Do you wish to account for your movements on the 16th of October and the 17th of October 2012?” Answer: “Yes.” Question: “Do you wish to consult with Eamonn at this point?” Answer: “Yes.”
41. The record of the interview then notes that “Eamonn Hayes indicates that he is not aware of circumstances surrounding Maurice Power presenting himself at Clonmel Garda Station and requests to speak with his client” . He was allowed to do so, and Detective Gardaí Bergin and Cooke are recorded as leaving the interview room at 9.12 pm to facilitate this.
42. The interview resumed at 9.20pm, and there was substantive questioning of the appellant until 10.05pm when the interview concluded. The appellant’s solicitor had been present throughout. The notes were read over to the appellant at the end of the interview. The following exchanges then took place: Question: “Is there anything else you want to say?” “No, that’s it.” Question: “Are these notes a true reflection of the conversation we had?” Answer: “Yes.” “Is there anything you would like to change or add?” Answer: “No.” “Have you made this statement freely and voluntarily?” Answer: “I have.” Question: “Will you sign these notes as being correct?” Answer: “Yes.”
43. The appellant then signed the notes in the presence of Detective Garda Bergin, Detective Garda Cooke, and his solicitor Mr Hayes. Both Gardaí countersigned the notes as witnesses to his signature.
44. At the appellant’s trial there was a challenge to the admissibility of evidence concerning what had transpired at this interview. In the course of a voir dire counsel for the appellant vigorously objected to the admission of this evidence on the basis that the interview had not been video recorded in accordance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997, S.I. 74/1997 as amended by the Criminal Justice Act 1984 (Electronic Recording of Interviews) (Amendment) Regulations, 2010, S.I. 560/2010 (“the 1997 regulations, as amended”). While it was acknowledged the trial judge had a discretion to admit such evidence, counsel for the appellant relied on the case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 in support of the proposition that the Court should be reluctant to admit such evidence. He further relied on The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 as authority for the proposition that the 1997 regulations, as amended, apply to admissions made where an accused voluntarily presents him or herself for interview.
45. In her ruling on this point, the trial judge accepted that there was a reasonable doubt as to whether a video recording had been offered. However, she went on to consider whether the 1997 regulations, as amended, in fact applied at all, and also whether the case law to which she had been referred applied to the appellant’s case. Her ruling bears quotation in full:
“The question next arises as to whether the failure to video-record the interview amounts to a breach of fair procedures such as to render the memo of interview inadmissible. The Court has been referred to the cases of DPP v. Michael Murphy [2005] 4 IR 504 and DPP v. Michael O’Neill [2007] IECCA 8. In the former case, the Court of Criminal Appeal pronounced that henceforth — which is a 2004 case, “Henceforth, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than in those circumstances specified in the regulations themselves and respect of station interviews. From this point onwards, the Court should only exercise its discretion pursuant to 27(4) for very good reason.” These regulations apply to persons detained in garda stations for the investigation of criminal offences. Counsel for the accused argues that they should be extended to cover Mr Power because though voluntarily in the station, he was in fact a suspect for the murder. He seeks to drawn an analogy with the situation which arose in the case of DPP v. Michael O’Neill. There Carney, J excluded a statement from the accused who had gone voluntarily to the garda station because of the failure to videotape a signed cautioned statement made by him. The analogy in the Court’s view is not well made. In the O’Neill case, the accused having been questioned by gardaí in his own home about a rape complaint made against him, admitted initially having consensual sexual intercourse. Later in the same interview he admitted that he had raped the complainant. On being told that he would have to come to the garda station to make a full cautioned statement, the accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. That cautioned statement was not video-recorded and the statement was ruled inadmissible by Carney J having regard to the decision of the CCA in DPP v. Michael Murphy.
The factual situation arising in the DPP v. O’Neill is strikingly different from that disclosed on the evidence in this case. O’Neill had admitted rape. Had he not elected to go to the garda station he would most certainly have been arrested and brought there. He was in the circumstances entitled to all of the protections that the law affords to persons detained in garda stations. In the instant case, the accused Maurice Power was in an entirely different category to that of Michael O’Neill. Following the violent death of Shane Rossiter, garda interest in those with whom he was on bad terms, and there were a number of people, was entirely appropriate. One of these was the accused Maurice Power. The fact that a person had a dispute with a man who died a violent death does not make one a suspect in his death without further evidence. It would, however, be sufficient to make that person what is described as “a person of interest” to the gardaí. Maurice Power and others who were being sought that day on the 17th and 18th were potential suspects, not suspects. In the course of the day of the 17th, the day of the killing, and on the morning of the next day, Detective Garda Bergin attempted to locate Maurice Power, calling to a number of houses and speaking to a woman who he described as Maurice Power’s mother-in-law. At 7.25 pm on the 18th of October 2012 Detective Garda Bergin received a phone call from the accused offering to meet him at Clonmel Garda Station in the company of his solicitor, Eamonn Hayes. About an hour later he received a phone call from the accused’s mother to say the accused would be arriving shortly. Garda Bergin encountered the accused on his way into the station. The accused’s solicitor had not arrived at that point. Detective Garda Bergin brought him into the station and introduced him to the member in charge. He was informed in the presence of the member in charge that he was not under arrest, that he was free to leave the station at any time. The member in charge recorded these matters in the station book. As Mr Hayes was not present, the accused was invited to ring him and did so. None of this evidence has been contested.
Mr Hayes arrived, according to the evidence, at 9.03 pm. Accordingly, the accused was in the station for quite a number of minutes before his solicitor arrived. The parties and D/Garda Cooke, who had arrived to assist Garda Bergin, went to the interview room. There is no dispute that Maurice Power voluntarily went to the station. There is no dispute on the accuracy of the memo of interview. There is no dispute that Mr Power was cautioned and, given his previous history with the deceased, it was entirely appropriate that he was cautioned. There is no dispute that he had an opportunity to consult with his solicitor. There is no dispute that he was informed of his right to leave the station at any time. There is no dispute that his solicitor was present throughout the interview. While it would be preferable to have a video of that interview, its absence does not make it inadmissible. The Court therefore holds that there was no breach of fair procedures in the taking of a cautioned statement from Maurice Power and accordingly that the memo of that interview is admissible.
46. The appellant submitted to this Court that it was disingenuous to suggest that the appellant was not a suspect in circumstances where Gardaí saw fit to caution him at the beginning of interview; and, moreover, were keen to emphasise to the trial judge that in fact they had offered the option of video recording. It was submitted that the trial judge’s finding of fact in that regard was therefore against the weight of the evidence.
47. In reply, the respondent submitted that the 1997 regulations, as amended, do not apply to situations where an accused has voluntarily attended a Garda station. It was further submitted, that even if they did apply, a breach in circumstances such as obtained in this case, where the accused had voluntarily submitted to interview and was interviewed only after being afforded the opportunity of consulting with his solicitor, and with his solicitor present in the interview room throughout, would not justify the ruling of the evidence inadmissible. Moreover, the respondent submits that the trial judge’s finding that the appellant was not a suspect but rather a person of interest was one that open to her on the evidence, and that while the appellant might disagree with that finding there was evidence to support it.
Decision
48. Regulation 3(2) of the 1997 regulations, as amended, specifies their scope of application. It provides:
“These Regulations shall apply to interviews, including the taking and reading back of statements, that take place in a station with persons who have been detained under any of the following provisions:
(a) section 30 of the [Offences against the State] Act of 1939;
(b) section 4 of the [Criminal Justice] Act of 1984;
(c) section 2 of the [Criminal Justice (Drug Trafficking)] Act of 1996;
(d) section 42 of the Criminal Justice Act 1999 (No. 10 of 1999);
(e) section 50 of the [Criminal Justice] Act of 2007;
(f) section 16 or 17 of the Criminal Procedure Act 2010 (No. 27 of 2010).”
49. Regulation 4(1) of the 1997 regulations, as amended, then goes on to state:
“4. (1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically recorded.”
50. Regulation 4(3) then provides:.
“(3) An interview or part of an interview is not required to be electronically recorded:
( a ) where—
(i) the equipment is unavailable due to a functional fault, or
(ii) the equipment is already in use at the time the interview is to commence, and the member in charge considers on reasonable grounds that the interview should not be delayed until the fault is rectified or the equipment becomes available;
or
( b ) where otherwise the electronic recording of the interview is not practicable.”
51. We agree with counsel for the respondent that prima facie the 1997 regulations only apply to the interviewing of suspects detained under one of the specified statutory provisions. The accused in this case was not in detention at the time that he was interviewed on the 18th of October 2012.
52. We feel it is important to say something about the cases of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 and The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 referred to in argument, and by the trial judge in this case.
53. Before doing so, however, it is important to note that in 2003, two years approximately before the Court of Criminal Appeal gave judgment in the Murphy case, the issue of non-compliance with the 1997 regulations had been raised as an issue in another case, namely The People (Director of Public Prosecutions) v. Connolly [2003] 2 I.R. 1.
54. In Connolly, the accused, who was tried for trespass and stealing, was interviewed and made admissions while in s.4 detention, but the interview was not video recorded. The admissions were nevertheless admitted by the trial judge applying s. 27(4) of the Criminal Justice Act 1984. Hardiman J, giving judgment for the Court of Criminal Appeal, which upheld the trial judge’s ruling, had sounded the following warning note (at pp 17 and 18):
“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most first world common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It also has the consequence that, in a very high percentage of criminal trials there is a hard fought issue (‘the trial within a trial’) as to the admissibility of statements which are often whole or a large part of the prosecution case. Twelve years ago the Martin Committee reported that this situation had virtually ceased in Ontario because of audio visual recording. The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.”
55. The case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 which was relied upon by the appellant at the voir dire in the present case, and also in argument before us, again concerned circumstances in which an accused, on this occasion suspected of murder, was interviewed while in detention under s.4 of the Criminal Justice Act, 1984 but the interview was not video-recorded. It was sought to have admissions made by the accused at interview excluded on the basis that there had been a breach of the 1997 regulations. The Garda station in question was equipped with the necessary equipment, and it was believed to have been working. No satisfactory explanation was put forward for the failure to utilise it in the course of interviewing that accused. The trial judge had ruled the evidence admissible notwithstanding the breach of regulations, applying s.27(4) of the Criminal Justice Act 1984.
56. The Court of Criminal Appeal upheld the trial judge’s ruling, but only with considerable reluctance, noting in its judgment the remarks of Hardiman J in Connolly, and also a later dictum from a judgment of the Special Criminal Court in the case of The People (Director of Public Prosecutions) v Kelly (Unreported, Special Criminal Court, 26th November, 2004) suggesting that past admonitions about the desirability of recording interviews had had little effect.
57. The Court of Criminal Appeal upheld the trial judge’s ruling on the basis that there had not been any great contest in the trial as to what was actually said by the accused and, apart from one exception, there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardaí during the period of his detention. Moreover, the events in that case had taken place prior to the judgment in Connolly.
58. It was in that context that the Court of Criminal Appeal had gone on to say, obiter dictum, that:
“43. However, going forward and for the reasons already given, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than those circumstances specified in the Regulations themselves. We feel, therefore, that in respect of station interviews from this point onwards, the court should only exercise its discretion under s. 27(4) for very good reason.”
59. The Murphy case is not, however, authority for the proposition that a video recording obligation extends beyond the categories of cases specified in regulation 3(2) of the 1997 regulations, as amended. That case certainly does not suggest that such an obligation extends to persons who volunteer to be interviewed having presented themselves at a Garda station but who have not been detained. No such issue was canvassed or discussed in that case. While it might be suggested that as a matter of good practice it is desirable that any such interview should be video recorded, if only for the protection of both interviewers and interviewee from the possibility of false allegations or even misunderstandings, the failure to do so does not amount to a breach of the 1997 regulations, or for that matter of any other statute or statutory instrument or rule of the common law, such as would presumptively require the exclusion of admissions made in the course of such an interview. That is not to deny that a failure to video record when facilities to do so were available might possibly be a relevant circumstance, for consideration amongst others, in determining whether a challenged statement was voluntary or otherwise.
60. In so far as counsel’s submission to the court below was based on The People (Director of Public Prosecutions) v. O’Neill, what was opened to the court below was not binding on the trial judge in any way. What was put before the trial judge in this case was an account of a first instance ruling by Carney J, sitting in the Central Criminal Court, in Mr O’Neill’s trial for rape, excluding a statement made by Mr O’Neill while he was voluntarily attending a Garda station, on the grounds that it had not been video recorded. There was no judgment of Carney J opened to the court, nor was any transcript of Carney J’s ruling provided to the trial judge. On the contrary, what was opened to the trial judge was the judgment of the Court of Criminal Appeal in the appeal by Mr O’Neill against his conviction – The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8.
61. It is apparent from that judgment that the ruling of Carney J, now being relied upon, was not in fact the subject of the appeal. The appeal concerned a different issue altogether. However, in setting out the background to the appeal, Kearns J, who gave judgment for the Court of Criminal Appeal, simply noted:
“4. … The accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. Carney J. ruled that as the statement made in the garda station had not been videotaped, he could not be satisfied that it was admissible having regard to decisions of this court in The People (Director of Public Prosecutions) v. Michael Murphy [2005] IECCA 52, [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98.”
We would comment, en passant, that we have considered the Ivers case, and it is difficult to see in what way Carney J might have regarded it as potentially relevant, as it was not concerned in any way with the 1997 regulations. Be that as it may, counsel for the appellant, on the strength of the brief reference just quoted, submitted to the trial judge that there had been “a tacit approval” by the Court of Criminal Appeal of Carney J’s ruling.
62. We emphatically reject that suggestion. It is clear to us that the reference to Carney’s J ruling by the Court of Criminal Appeal in O’Neill was purely to provide the context in which that court was being asked to address another, and wholly different, point. The Court of Criminal Appeal’s judgment in the O’Neill case was simply not an authority for the proposition advanced by counsel for the appellant in the court below, and again before us.
63. We are satisfied that in the present case there was no breach of the 1997 regulations because the appellant was not in detention under one of the relevant statutory provisions at the material time.
64. Moreover, even if it is considered desirable that the “spirit” of the 1997 regulation be observed in the case of “suspects”, as opposed to persons who are merely “of interest”, who are being interviewed while voluntarily present in a Garda station, and we express no definitive view on that issue in circumstances where it has not been fully argued before us, we consider that we would in any event have no basis for interfering with the trial judge’s finding of fact that the appellant in this case was a person of interest and not a suspect. There was clearly evidence on foot of which she could have arrived at the decision she did. She heard the evidence first hand, heard the relevant witnesses being cross-examined, and was best placed to form a view as to their credibility and reliability. She had evidence from two Detective Gardaí that the appellant was not at that point a suspect and was merely a person of interest. That was evidence she was entitled to accept and to act upon.
65. Finally, we consider that in any event no question of any unfairness to the appellant arises from the circumstances in which he was interviewed, even though the interview was not video-recorded. The appellant had had the benefit of legal advice before submitting to being interviewed, and his solicitor was present throughout. He acknowledged both orally and in writing that he was there voluntarily, he was cautioned before it began, and he accepted the record was accurate There is no basis in the circumstances for suggesting that the circumstances of the interview were unfair, that the appellant’s rights were not respected, or that what he said was involuntary. In our view the trial judge was entirely right to admit this evidence.
66. In the circumstances we reject Ground of Appeal No. (iii)
Ground (iv) – Interviews during detention from the 11th to 15th of December 2012
67. A voir dire on the lawfulness of the appellant’s arrest and detention commenced on the 9th of May 2014 and lasted until the 16th of May 2014. Evidence was heard from 29 Garda witnesses and one civilian. The defence objected to the admission of all memoranda of interviews conducted while the appellant was detained on the basis, inter alia, that the interviews and admissions made therein were not voluntary and not reliable and that a purported third extension of the appellant’s detention was unlawful.
68. The defence submitted that there was a reasonable doubt as to the voluntariness of the appellant’s confessions in circumstances where he had been supervised by interviewing Gardaí during cigarette breaks directly before, and/or in between, interviews. The learned trial judge ruled as follows:
“While clearly not best practice, the Court can understand the convenience of having the interviewers supervise both cigarette breaks, that is prior and subsequent to interview. This fact alone does not give rise to an inference of inappropriate behaviour. In fact, the most striking element of this part of the application is that there is not a shred of evidence of inappropriate behaviour by the investigators. It is of course open to an accused in a voir dire to give evidence as to how his will was overborne. While suggestions have been made by counsel for the accused as to threats made, particularly in the period leading up to interview 6, the Court has absolutely no evidence of such behaviour. The Court is not willing to draw an inference of nefarious practices in the absence of primary evidence of the same. The evidence that is available to the Court supports the voluntariness of the accused’s admissions. Throughout his detention the accused appears to have been what I think one witness described as “a talker”. He appears to have engaged with every garda who supervised his smoking breaks, be they investigators or not.
…
The very next morning following an interview and during a smoke break he made comments to Detective Garda Deegan and Detective Garda Cooke which each of them noted separately.
…
He stated that if he did admit he’d be saying he was the only one there, that he drove and pulled the trigger. He went on to say that, “You don’t pull a trigger intending to maim or scare someone. You do it with the intention of killing someone.” It was a case of kill or be killed.”
69. In this appeal the appellant criticises the ruling of the trial judge on the voluntariness issue. It was submitted that in order to be satisfied beyond a reasonable doubt that there was no undue influence or undue pressure or any oppression, the court had to be satisfied beyond a reasonable doubt that the evidence of the interviewing members was correct and that it could be relied upon. It was submitted that these criteria simply were not satisfied by the evidence available to the court of trial.
70. It was further submitted that the evidence adduced showed that there was a vast amount of contact between the appellant and interviewing members, the pattern of which raised a very real suspicion that it was for improper motives. That was said to be so particularly in light of the fact that the appellant had on previous occasions apparently displayed a willingness to speak about the investigation outside the scope of a formal interview.
71. It was further submitted that such were the conflicts in the evidence between prosecution witnesses themselves, and also between prosecution witnesses and the custody record, that the trial judge simply could not have been satisfied to the required standard that nothing untoward happened when the interviewing members supervised the appellant whilst he was taking cigarette breaks, and that they only engaged in such supervision for the reasons of convenience and expediency that they had suggested.
72. In response, counsel for the respondent reiterates the point made by the trial judge in her ruling, namely that while suggestions of impropriety were put, these suggestions were rejected and there was no actual evidence to the contrary. Moreover, it is pointed out on behalf of the respondent that the trial judge watched the most contentious interview being the one in which the principal admissions were made, namely interview no 7, and having done so observed in her ruling that:
“The atmosphere in the interview room is calm and relaxed throughout. The accused gives the impression of a man who has decided to tell his side of the story, not merely what he did but why he did it. In the course of the interview he yawns and stretches, he smiles on one occasion, occasionally he looks out the window, he fiddles with his clothes, puts his hands on his head. He confirms that there was no interference with him by the interviewers during the recent cigarette break.”
73. We are satisfied that the complaint concerning the trial judge’s ruling on voluntariness is untenable in the circumstances of this case. It was in accordance with the evidence. While there was a degree of inconsistency in the evidence of different witnesses, and between witnesses and the custody record, there was certainly evidence on which the trial judge was entitled to rely if she was prepared to accept it. Again, she heard the evidence first hand, she heard the witnesses being tested in the crucible of cross examination and was best placed to make evaluations of their credibility and reliability. We see no basis on which we could legitimately interfere with her finding on voluntariness.
74. The ruling of the trial judge admitting these interviews into evidence is also criticised on the basis that there were matters to which the appellant confessed but which in fact were not borne out by the objective evidence. It was submitted that these highlighted the unreliability of the admissions and statements made by the appellant during the course of his detention. Emphasis was placed principally on statements made by the appellant during the course of interview number 7 which directly contradicted the evidence of Dr. Cassidy, a witness Rachel Keating, Detective Garda Bergin, and certain telephone data placed in evidence.
75. In response, counsel for the respondent contends that the trial judge arrived at her view that it was proper to admit the evidence notwithstanding these inconsistencies, as she was entitled to do. She had not ignored them, but rather had acknowledged them stating that the fact that there were the inconsistencies between the accused’s evidence and that of other witnesses highlighted by counsel for the accused “is classically a matter for a jury to resolve.” For her part, however, the trial judge was satisfied to rule for the purposes of the voir dire that the admissions were capable of being relied upon, and therefore ought properly to be admitted before the jury.
76. We can find no fault in the trial judge’s approach. She was entirely correct in suggesting that the highlighted inconsistencies were properly a matter for the jury to resolve, and we believe that she would not have been correct to rule them out on the grounds of alleged questionable reliability.
77. Finally, under this ground of appeal, there is a challenge to the trial judge’s ruling that the admissions in question were made while the appellant was in lawful detention. The challenge is based on the contention that the trial judge erred in holding that a third extension of the appellant’s detention granted by District Court, upon the application of Chief Superintendent Roche, was invalid. The case in that regard is that the impugned third extension was granted on the basis of the Chief Superintendent’s evidence which was based upon an incomplete briefing that he had received from subordinate officers involved in the investigation concerning the status of the investigation. In particular, it is complained that Chief Superintendent Roche had not been apprised of the fact that the appellant had begun to make admissions prior to the application for third extension of the appellant’s detention being made, and that therefore the District Court Judge’s decision to grant an extension had not been made on a sound factual basis. This, it was submitted, rendered the process entirely flawed and rendered the third extension of detention illegal.
78. Section 50 of the Criminal Justice Act 2007 (“the Act of 2007”) applies, inter alia, to a case of suspected murder involving a firearm – see s.50(1)(a) of the Act of 2007.
79. Subsection (2) of s.50 of the Act of 2007 provides:
(2) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person (in this section referred to as “the arrested person”) whom he or she, with reasonable cause, suspects of having committed an offence to which this section applies, the arrested person—
(a) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or
(b) if he or she is arrested in a Garda Síochána station, may be detained in the station,
for such a period or periods authorised by subsection (3) if the member of the Garda Síochána in charge of the station concerned has at the time of the arrested person’s arrival at the station or his or her arrest in the station, as may be appropriate, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”
80. Subsection (3) of s.50 of the Act of 2007 is lengthy, but the relevant parts of it for the purposes of this case are sub-subsections (a), (b), (c) and (g)(i) &(ii), which provide:
“(3) (a) The period for which a person may be detained pursuant to subsection (2) shall, subject to the provisions of this subsection, not exceed 6 hours from the time of his or her arrest.
(b) A member of the Garda Síochána not below the rank of superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding 18 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(c) A member of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding 24 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(g) (i) A member of the Garda Síochána not below the rank of chief superintendent may apply to a judge of the Circuit Court or District Court for a warrant authorising the detention of a person detained pursuant to a direction under paragraph (c) for a further period not exceeding 72 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(ii) On an application pursuant to subparagraph (i) the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 72 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.”
81. In this case, the appellant had been arrested under s.50(2) and was initially detained for six hours pursuant to s.50(3)(a). His detention was then extended for up to a further eighteen hours pursuant to s.50(3)(b) – (the 1st extension). It was subsequently extended for up to a further 24 hours pursuant to s.50(3)(c) – (the 2nd extension). It was then extended yet again by a District Judge at Cashel District Court for up to a further 72 hours pursuant to s.50(3)(g) – (the third extension). The latter is the extension under challenge.
82. The trial judge’s ruling in that regard was as follows:
“The final argument advanced on behalf of the accused, and I suppose it’s an alternative argument to the argument at 3, was that the further detention authorised by the District Court in Cashel at 5.02 pm on the 13th of December 2012 was invalid because the District Justice was not informed that the detainee had begun to make admissions, and therefore he did not have a complete account of what had happened during the course of the detention. Counsel for the accused submits that it’s not clear, we don’t know why Inspector — Chief Superintendent Roche who was making the application wasn’t aware of the fact of the admissions. And he did concede that were he aware he would have told the Court. But looking again at the chronology of the events, the admissions were made at an interview which concluded at 13.40. It is highly likely that the preparatory notes for Chief Superintendent Roche’s application were prepared in advance of that. And the suggestion that something different might have happened were the fact of the — the fact that Mr Power had begun to make admissions then made known to the judge is not clear to the Court. Clearly, even in the event of admissions being notified to the Court, there were still investigations to be carried out, and in fact the case submitted by counsel for the prosecution, the People at the suit of the Director of Public Prosecutions v. Terence O’Toole and James Hickey [1990 WJSC-CCA 1662] makes that very clear, where it is said at page 39: “The Court rejects the submission that once an accused has made a statement involving himself directly or indirectly in the crime for which he is charged, that that fact necessarily concludes that there is no necessity for his further detention for the proper investigation of the offence. It is not only the right but also the duty of gardaí investigating the crime of murder to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence or the person or persons accused of that crime. The taking of statements, whether exculpatory or inculpatory is only a part of an investigation. But in the opinion of this Court is most certainly not a full and proper investigation of the offence.” So, the Court is not persuaded that the furnishing of this information to the District Court would make a material difference to the order made by that Court. And the Court also notes that during the course of this hearing the accused was present at all times and he was represented by Mr Hayes, solicitor, who apparently cross-examined on — witnesses on his behalf, and it — certainly the accused knew he had made admissions. He had his solicitor present. If he thought that that was a material point it was open to him to address the Court on it. However, I do not consider that the furnishing of that information was likely to have made a material difference to the order made by the Court, and I also note that there is in fact in being a valid District Court order, which was made within jurisdiction and within the terms of section 50 as described.”
83. In this Court’s view the trial judge’s ruling was correct. Unlike the first two extensions, which involved administrative, or at most quasi-judicial, decisions by Garda officers, the third extension was qualitatively different, and was designed to be by the Oireachtas. It was a judicial decision by a court established under the Constitution, i.e., the District Court, which is a court of record. It was a decision based upon a court hearing at which all interested parties were present and represented, in which evidence was adduced, in which there existed an opportunity to cross-examine witnesses and test the evidence adduced, and in which interested parties had the right to be heard both with respect to the law and the facts. As provided for in the statute, the District Court’s decision was given effect to by a judicial warrant authorising the continued detention of the appellant. There is no suggestion that the warrant in this case was made other than within jurisdiction.
84. We do not consider that a judicial warrant of this sort, made within jurisdiction, is susceptible to challenge in the course of a trial on indictment in the manner in which the appellant seeks to do so in this case. As the trial judge clearly recognised, what she had before her was an ostensibly valid District Court order, from a court of record, that had ostensibly had been made within jurisdiction. The only legitimate means open to the appellant if he desired to seek look behind that warrant was to initiate judicial proceedings to condemn it on some justiciable grounds. There was ample opportunity for the appellant to do this as he personally would have known at all times at what point he had begun to make admissions. Moreover, even if he had never mentioned it to his solicitor, it would have been obvious to his solicitor when it was that he had begun to do so once the Book of Evidence was served. The appellant did not, however, bring judicial review proceedings, and there is simply no jurisdiction or scope for a trial judge, even in the Central Criminal Court (which is the High Court exercising its criminal jurisdiction), and obviously impossible in any Circuit Criminal Court case, to judicially review an order of the District Court within the four walls of a trial on indictment.
85. However, quite apart from this we consider the trial judge’s reasons for dismissing the misconceived challenge were valid in any event. The evidence actually put before the District Judge, even though he was not told that the appellant had begun to make admissions, was clearly sufficient in any event for the District Judge to have been satisfied that the appellant’s continued detention was necessary for the proper investigation of the offence for which he had been arrested. The interviewing process was clearly on-going and had not concluded. The case of The Director Of Public Prosecutions v O’Toole 1990 WJSC-CCA 1662 to which the trial judge referred was apposite, and the trial judge was correct in her decision in our assessment. We therefore reject this complaint also.
86. Accordingly, Ground of Appeal No. (iv) is dismissed.
Ground of Appeal No. (vi) – the admissibility of the XRY Report/Printout
87. During the course of the trial the respondent sought to introduce into evidence a printout of data (the “XRY report”) downloaded from the mobile phone and SIM card of the deceased using a software tool known as the XRY Forensic Phone Analysis System.
88. The evidence relied upon in support of the application came, inter alia, from Sergeant Mary Gilmartin who told that court that she was trained and qualified to operate the XRY Forensic Phone Analysis System, that she had received a Nokia mobile phone handset labelled BC 08 from Sergeant Brendan Carey (there was later evidence that Sgt Carey had recovered that handset from the kitchen of the deceased’s house where it was plugged in to charge), and that using the XRY Forensic Phone Analysis System she had on the 17th of October 2012 downloaded data from the SIM card in that handset, and further on the 18th of October 2012 had downloaded data from the mobile phone handset itself. Then again using XRY Forensic Phone Analysis System software she had generated a printout (the “XRY report”) covering a specified period, which she was exhibiting. This report or printout contained details of calls made and received over the period of interest as recorded on either the SIM card or the handset itself, as well as details of the dates and times of SMS texts sent and received in the period of interest, the numbers from which texts were received and to which they were sent, and a record of the actual text transmitted or received.
89. Under cross-examination, Sergeant Gilmartin accepted that she did not really know how the XRY Forensic Phone Analysis System worked:
“Q. Yes. I think your role essentially, Sergeant, was to get your device or programme, to plug it into the phone, get a printout and hand it on?
A. That is correct, Judge.
Q. Do you know how the software works?
A. Very vaguely, Judge, I’m not
Q. You wouldn’t purport to be an expert in that?
A. Absolutely not, Judge, I’m qualified in the operation of it.
Q. Yes?
A. And to make sure that it’s done correctly, but that is my sole function in relation to it.
Q. Certainly, you wouldn’t be able to help us as to how it actually operates?
A. No, Judge, I would not.
Q. Did you check the device time?
A. The only place that that is recorded is sometimes depending on the model of the phone, on the first couple of pages of the report, if you just give me a moment and I’ll just check and see if it was recorded on this, no, Judge, it’s not recorded on the download.”
90. Counsel for the appellant objected to the introduction of the XRY report. He submitted that in the absence of authoritative evidence as to the workings of the relevant software programme and phone system, the court could not be satisfied as to the admissibility of the printouts, whether as real evidence or as hearsay.
91. The trial judge was referred to R v Cochrane [1993] Crim L. Rev 48; The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468.
92. Counsel for the respondent contends that the printout was admissible as real evidence and that it was not necessary for Sergeant Gilmartin to know how the electronics of the phone, or indeed the analysis software, actually worked. His argument is essentially that mobile phone technology is now as ubiquitous as television and CCTV technology. Gardaí routinely download CCTV footage from crime scenes and give evidence that they have done so, and produce the download as real evidence, and it has never been suggested that a Garda doing so must understand how a video camera or a television actually works. The important thing is to be trained in the operation of such equipment and in how to download relevant data, which in this instance Sergeant Gilmartin was.
93. There were also subsidiary complaints that there was no evidence that the printout produced in court was the same as the one generated by Sergeant Gilmartin on the 17th and 18th of October 2012. It appears that a second copy or copies may have been printed out in April 2014 for production and use at the trial and the appellant complained that there was no evidence concerning the storage of the information on the laptop concerned between October 2012 and April 2014, nor any evidence that it had not been altered or tampered with during that period. That was in fact the position on the evidence when these subsidiary complaints were initially made, but due to circumstances arising later in the trial necessitating a re-visiting of the issue of the admissibility of the XRY report further evidence was heard which established that the designated laptop was kept in the incident room at Tipperary Garda Station, it was encrypted and access to it was limited to two persons, namely Sergeant Gilmartin and Garda O’Brien, both of whom gave evidence at the trial.
94. The trial judge rejected all of the appellant’s objections, and with respect to the primary objection ruled:
“Garda Gilmartin is a person trained in the operation of the she’s a qualified operator of the XRY forensic phone analysis system. She described it that’s essentially a computer program that forensically analyses and downloads the contents of mobile phone on to a computer. She described that it works on the phone and on the SIM card and on a variety of electronic products and she confirmed that the device has no or the XRY machine has no information about the device before it puts in its download. It’s a forensic system, so it extracts the information that is on the mobile phone. The Court considers the situation analogous to a radiologist giving evidence of an MRI scan or a CT scan or an X ray where it there is no necessity for the radiologist to know the intricacies of the machine that conducts the work in order to give evidence of what it produces and the Court holds that this is a similar situation. Garda Gilmartin is trained in XRY analysis and downloading and she has produced that. She has described the operation and function of the XRY machine and accordingly the Court holds that the it that the XRY reports are real evidence in the case.”
95. We consider that the trial judge’s ruling was correct. In the first instance we should state that we regard the case of R v Cochrane, relied upon by the appellant, of being of very limited assistance. That case concerned a prosecution for theft in circumstances where the defendant had gone in to a bank to lodge a certain sum to his account but due to an error by the bank teller a much larger sum was credited to his account. Though the defendant knew there had been an error, he withdrew monies to which he was not entitled from various ATM machines and spent it. In the course of his prosecution for theft the prosecution sought to have admitted into evidence certain computer print-outs and till rolls. The prosecution maintained that because there had been an inputting of instructions by the customer on the ATM keypad in each transaction of interest, that part of the procedure was akin to a typewriting process and the evidence to be derived from the till roll or printout recording it, that the prosecution wished to place in evidence was, to that extent, real evidence properly admissible before the court. There was also, however, evidence that each ATM was connected to a mainframe computer in a central location where data relating to transactions processed through the ATMs’ concerned was stored in the mainframe computer’s memory. None of the witnesses who called on behalf of the prosecution had any knowledge of the function or operation of the mainframe computer, none of them had any training or experience in operating it, and none of them was able to supply affirmative evidence that the mainframe computer was operating correctly at relevant times. The appellant had made the case at trial that there was a statutory prohibition on the admission of the print-outs and till rolls on any basis unless the conditions set out in s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) were satisfied, and in this case, the appellant maintained, they had not been satisfied. The trial judge had ruled against the appellant and had admitted the evidence.
96. S. 69 of the English Act of 1984 had provided:
(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown –
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; and
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.
97. The actual issue in the case before the Court of Appeal was whether, in the circumstances of the case, s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) did in fact apply, and if so, whether the pre-conditions to admissibility were in fact satisfied in the circumstances of the case. (We would observe in passing that s.69 of the English Act of 1984 was later repealed and replaced by s.60 of the Youth Justice and Criminal Evidence Act 1999. The position in the neighbouring jurisdiction since 1999 is that evidence, or the absence thereof, pertaining to the reliability of a computer system is now simply a matter that goes to weight.)
98. The Court of Appeal in R v Cochrane held that without authoritative evidence about the operation of the relevant machines it was impossible for the court to decide whether or not s.69 of the English Act of 1984 could have applied, and that it had no choice but to allow the appeal in those circumstances.
99. Accordingly, R v Cochrane is readily distinguishable from the circumstances of the present case, and we do not consider it that it provides very much assistance, save to the extent of noting that it appears to have been regarded by Kearns J, giving judgment for the Court of Criminal Appeal, in The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468, as providing support for the proposition that before a computer record can be relied upon on as real evidence, there ought to be authoritative evidence to describe the function and operation of the relevant computer.
100. The law in this jurisdiction, since The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468 is that records generated by computer and information technology systems, either mechanically or electronically, without human intervention, are admissible as real evidence, provided the court has evidence concerning the function and operation of the system in question. In simple terms what is required in that regard is evidence of what the machine does (as opposed to how it does it), and that it was operated (and prima facie was functioning) correctly on the relevant occasion. We are satisfied that Sergeant Gilmartin provided the necessary evidence in this case. She outlined what a computer operating the XRY Forensic Phone Analysis System does, she confirmed that she was trained to use that system and that she in fact did so, and that it was her function “to make sure that it’s done correctly”. It was implicit in her having stated that, that she was maintaining that she had operated the system correctly and also that, in so far as she was concerned, prima facie it was functioning correctly.
101. While it is, of course, always open to an accused to challenge the reliability of such records, we consider that evidence pertaining to reliability is a matter that goes to weight rather than to admissibility. We alluded earlier to an issue arising later in the trial that necessitated some re-visiting by the trial judge of her earlier rulings. This gave rise to a supplementary ruling which, for completeness, although no complaint is made about it on this appeal, we feel it appropriate to set out:
“The Court has been asked to revisit its ruling on the admissibility of information contained in an XRY download from the phone and SIM card of Shane Rossiter. In the course of the evidence on Tuesday the 27th of May it emerged that there were two different copies of the XRY report on the phone, one produced by Garda O’Brien, the telecoms liaison officer on the 16th of April 2014, and another report, which has been exhibited in the trial by Sergeant Mary Gilmartin, which was produced on the 22nd of April 2014. Garda O’Brien’s report is in chronological order, while Sergeant Gilmartin’s is in random order. Neither officer has been able to explain why there is a difference in the format between the two reports. Garda O’Brien has given evidence that there are regular updates of the software to allow the data to be presented in a more user-friendly fashion. He gave an example that the font could be changed for example. One such software update allowed what had previously been random entries to be presented in chronological order. He wasn’t sure when this update was received, but it was prior to the 16th of April. Neither Garda O’Brien nor Sergeant Gilmartin could explain how Sergeant Gilmartin was able to produce a report in the older random format six days later on the 22nd of April.
While the issue of formatting has not been resolved the evidence remains clear that once an XRY file has been created the content of that file cannot be manipulated or altered. It is retained on the hard drive of a designated XRY laptop, which is kept in the incident room in Tipperary Garda Station. It is encrypted and access is limited to the two witnesses who gave evidence. However many reports are produced in whatever format, the content remains the same. This is borne out by the two reports in different format, which have been produced in this trial. While the format is different the content is identical. The date of creation of the file is also identical, being in respect of the phone device the 18/10/2012 at 16:30:38.
Mr McGinn, on behalf of the accused man, points out to differences between the call data information and the XRY analysis. The Court considers the explanation given by Garda O’Brien is persuasive. The XRY analysis is limited to what is physically present on the phone. Call data can locate items that have been deleted. The fact that a call shows up on call data, which is not present on the XRY analysis, does not indicate an unreliability in the XRY analysis. Finally, the XRY reports in both formats show two calls were made from the phone at 16:46 and 16:57 on the 17th of October 2012. Garda, now Sergeant Gilmartin has given evidence that she did not make those calls. That of course does not mean that that the calls were not made. The phone at the time was in garda custody. There is evidence — there is no evidence that Garda Gilmartin had exclusive access to it. The evidence of Garda O’Brien is that the XRY designated laptop is kept in the incident room in Tipperary Garda Station. The Court notes that the XRY report on the SIM card was created at 17:05:25 on the 17th of October 2012, approximately one hour after the phone was handed to Garda Gilmartin and after the two calls identified were made. The Court remains satisfied beyond reasonable doubt that the content contained in the XRY report is real evidence and is admissible in the trial.”
102. In the present case, the trial judge had no concrete reason on the basis of the evidence she received to be concerned about the reliability of the XRY report. Such concerns as were raised at different stages by defence counsel were purely speculative, or not borne out on the totality of the evidence. In our view the XRY report was properly admitted.
103. We therefore dismiss Ground of Appeal No. (vi).
Grounds of Appeal Nos. (vii) and (viii) – the Corroboration Grounds
104. Prior to embarking upon her charge to the jury, the trial judge discussed with counsel the application of s.10 of the Criminal Procedure Act, 1993 (the Act of 1993) and the potential for circumstantial evidence that had been adduced in the case to amount to corroboration, and what she should say to the jury in that regard.
105. Section 10 of the Act of 1993 provides:
(1) Where at a trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.
(2) It shall not be necessary for a judge to use any particular form of words under this section.
106. Counsel for the respondent referred the court to the cases of The People (Director of Public Prosecutions) v Connolly [2003] 2 I.R. 1; The People (Director of Public Prosecutions) v O’Neill 1 JIC 2802 (Unreported, Court of Criminal Appeal, 8th January 2002; and The People (Director of Public Prosecutions) v Brazil [2003] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002); and he urged the Court to accept that certain circumstantial evidence relied upon by the respondent was capable of amounting to corroboration of the appellant’s confession, and to tell the jury that it was so capable although it would be a matter for the jury to assess whether or not it in fact corroborated it.
107. Counsel for the appellant argued in response that the circumstantial evidence that the respondent was relying upon was not in fact capable of amounting to corroboration as defined by the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, in the following terms:
“Corroboration in essence may be defined as independent evidence which implicates the accused in a material way in the offence charged.”
108. It was submitted that, in order to amount to corroboration, evidence sought to be relied upon has to be evidence, independent of the confession, which connects an accused with the crime. It was further submitted that the circumstantial evidence that the respondent was placing reliance on as being corroborative was dependent, to a greater or lesser extent, on the appellant’s admissions.
109. The circumstantial evidence in controversy was evidence that a car was used in the shooting of Mr Rossiter; the fact that not long after the shooting a burned out black Audi was found in a bog in the Nire Valley in Co Waterford giving rise to a suspicion that it was the vehicle used in the shooting; the fact that the appellant could be linked to a black Audi car, firstly through the CCTV footage from the Tesco garage, and secondly through evidence that prior to the shooting the appellant’s girlfriend was believed to have owned a Black Audi A4, and the fact that there had been an ostensible attempt to fabricate evidence that this car had been sold on prior to the shooting to a Mr John Byrnes, who could not be located, and who was believed not to exist.
110. The prosecution contended that this material was capable of providing corroboration in circumstances where, amongst the admissions made by the appellant in the course of being interviewed, were admissions that on the occasion in question he had had the use of, and had driven around in, a black Audi A4 motor car belonging to his girlfriend Pamela; that while in that car he had discharged a sawn off shotgun at Mr Rossiter; that he had subsequently burned the car in a mountainous area; and that contrary to previous assertions the Audi A4 had never in fact been sold, and that “I had people just believe that, that’s all”.
111. The appellant contended that such evidence was incapable of amounting to corroboration, relying on the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1.
112. There had been consideration during exchanges with counsel concerning whether s.10 of the Act of 1993 requires corroboration of the reliability of the confession or corroboration that the accused is implicated in the crime. In that regard, para 8.282 of McGrath on Evidence, (2nd Ed, 2014) (Round Hall Thompson Reuters: Dublin), was opened to the trial judge by prosecuting counsel. It succinctly captures the issue that was debated and in our view correctly states the law and bears reproduction in full:
8-282 The first question that arises in relation to s.10 is whether the warning it mandates is triggered by and relates to a lack of corroboration of the accused’s guilt of the offence or a lack of corroboration of the making of the confession. An argument can be made that the mischief that the section is directed at is the fabrication of confessions and, thus, the warning is directed towards circumstances where there is no corroboration of the making of the confession. This interpretation is supported by the wording used in subs. (1) which requires a warning when “evidence is given of a confession made … and that evidence is not corroborated”, i.e.,the evidence that has to be corroborated is the evidence of the making of the confession. Such a requirement would give a significant evidential impetus to the use of audiovisual technology to record interviews. However, the word “corroboration” is undoubtedly a term of art with a particular technical meaning, i.e. independent evidence that tends to implicate the accused in the commission of the offence. Thus, the use of that term indicates that the section is directed towards the risk of a miscarriage of justice that arises when the only evidence against an accused is that of a confession or inculpatory statement made by him. In any event, this question has been settled in favour of the latter view by the decisions of the Court of Criminal Appeal in People (DPP) v Connolly [ [2003] 2 I.R. 1] and People (DPP) v Brazil. [ [2002] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002)]
113. The trial judge obviously considered the issue with great care, taking the opportunity of availing of an intervening weekend before giving her ruling. Just before commencing her charge, and in the absence of the jury, she ruled:
JUDGE: Good morning. Now, in relation to the matters that we were discussing on last Friday as to the charge, it seems to me that this case stands or falls on the confession, that the desirability or what needs to be corroborated in a confession case is independent evidence of the truth and reliability of the confession, not of proof of guilt or of the commission of the crime, that the corroboration required by the section, having read the section and having considered Connolly, is that the the evidence that is sought, independent evidence that is sought, is independent evidence that tends to show the truth and reliability of the confession. Having come to that view, I do not I propose to limit myself to that aspect in relation to the confession and I propose to tell the jury that the circumstantial evidence is capable of providing independent confirmation of the truth and reliability of the confession. Because I have taken that view, I do not intend to rely on any potential lies told by the accused during his interviews. It seems to me that lies told during interviews are potentially corroborative of guilt of the offence and it would be confusing for the jury to have two addresses in relation to corroboration, one in relation to the confession and one in relation to guilt of the offence. I also take the views that since there isn’t direct evidence of the commission of the offence, that lies lies don’t lies told during interview would not necessarily corroborate the commission of the offence. So, I do not propose to direct the jury that if they find the that Mr Power lied in relation to the car, that that is corroborative of guilt, I am not going there. So, I will limit myself to the corroboration in relation to the confession and I hold that that corroboration is that the definition of corroboration of the confession is independent evidence that shows the truth or reliability of the confession.
114. Then in the course of her charge, the trial judge explained corroboration to the jury as being “independent evidence which confirms the truth and reliability of the confession” and went on to say “in this case, the circumstantial evidence, if you accept it, is capable of providing you with independent confirmation of the truth and reliability of material parts of the confession.”
115. The appellant submits that the trial Judge erred in failing to properly explain corroboration to the jury, in failing to distinguish corroboration as regards the reliability of the confession as opposed to the commission of the actual offence, in failing to instruct the jury that there was no corroboration of the actual commission of the offence and in failing to contextualise the items that might be capable of amounting to corroboration.
116. The trial judge’s phraseology, namely that corroboration is “independent evidence which confirms the truth and reliability of the confession”, is somewhat unorthodox, particularly viewed in the light of the passage just quoted from McGrath on Evidence, and also the ratio decidendi in Connolly, both of which were opened to her in extenso. However, in complete fairness to the trial judge, the likely source of her phraseology was an obiter dictum in Connolly where Hardiman J diffidently sought to suggest a possible approach to charging juries on s. 10 in future cases. His suggested model charge begins (at p.16 of the report) with the words:
“This case stands or falls on the confessions which the prosecution allege the accused made. Either you are satisfied beyond reasonable doubt that that confession is true and reliable, in which case you will convict, or you are not so satisfied, in which case you will acquit.”
117. There is an express reference here to truth and reliability, but the important nuance is that Hardiman J was referring in these introductory remarks to the overall burden of proof to be discharged by the prosecution, and not confining his remarks to how corroborative evidence may operate vis à vis a confession. In the present case, the trial judge adopts those words almost verbatim, stating:
“Now, essentially, at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.”
118. However, the trial judge appears not to have appreciated the nuance referred to, and continued:
“Because of the experiences, particularly in the 1970s and 1980s in this country, where undoubtedly false confessions were extracted, sometimes quite brutally from people, the law was changed in 1993 and since then the law has been that when reliance is placed on confession evidence, juries should consider whether or not there is independent confirmation of the truth and reliability of the confession. That’s it’s called in law corroboration. So, if reliance is being placed on a confession, you must consider whether or not there’s independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn’t and if at the conclusion of your analysis of the evidence you find there’s no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you’re not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you’re still perfectly entitled to convict as long as you are satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it’s absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent — what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
119. In contrast, Hardiman J’s suggested charge had continued:
“The law requires me to point out to you that there is no corroboration of the evidence of the confession. Corroboration means independent confirmation. In a case like this, it would mean some evidence independent of that of the gardaí who say they heard the accused confess, which you could fairly and reasonably regard as confirming the truth of the confession. There might have been forensic evidence placing the accused in the injured party’s house, which would certainly confirm the truth of the alleged confession. He might have been found in possession of the stolen property or he might have been identified by some person as the robber. On the other hand, there are cases which, of their nature, make it hard to find corroboration. You must consider what sort of case this is from the point of view of corroboration. When you are considering whether you can feel sure that the statement is true and reliable beyond reasonable doubt, you must ask yourselves whether the absence of any corroboration or independent confirmation of the statement should reduce your trust in it to the point where you are not confident of its truth beyond reasonable doubt. Since the earliest times, people faced with important decisions have sought to make their task easier by looking for independent confirmation of one view or another. It is very natural and prudent to do so, and very comforting if you find it. But if it is absent, the decision still has to be made. If it is absent where you would expect to find it, that fact in itself may affect the decision.
I am obliged to give you this warning because of a law passed by the Oireachtas in 1993, which says that I must advise you to give due regard to the absence of corroboration. It is essential that you do so. You must also bear in mind that, despite the absence of corroboration, you are perfectly entitled to convict if you are indeed satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without corroboration, merely that you should specifically consider the absence of corroboration and what weight, if any, you should give to this factor. Once you do this, your decision is a matter for your own good sense and conscience.”
120. It is certainly not the case that corroboration in the context of the requirement under s.10 of the Act of 1993 relates solely to the reliability of the confession – Connolly clearly establishes that. However, the trial judge neither suggested that corroboration in this context of s. 10 of the Act of 1993 should relate solely to the reliability of the confession, nor that it would be sufficient if it related to either the truth or reliability of the confession. Rather, she framed her definition in terms of there being two conjunctive requirements, namely that corroborative evidence should confirm both the truth and the reliability of the confession.
121. If a statement of admission, or any part of a statement containing an admission, is “true” then it implicates the accused in having committed the offence. To the extent that the trial judge charged the jury that this was a requirement she was correct. Whether she was also correct to tell the jury that for evidence to be corroborative it also had to confirm the reliability of the confession is doubtful. It certainly does not follow that simply because a statement is true that it is reliable. For example, an admission made by an accused while he is in a state of profound intoxication might well in fact be true, but it might not be regarded by a reasonable fact finder as being capable of being safely relied upon. However, we do not believe that it is the law that for evidence to be corroborative that it must tend to confirm both the truth and the reliability of a confession. If it does both, well and good. However, it must at least tend to confirm the truth of the confession. To suggest this is not to say that a jury need not be concerned about reliability. They must of course be concerned about reliability but not in considering whether evidence is or is not corroborative. Any concerns they may have in regard to reliability fall to be separately considered in the context of determining the weight, if any, to be attached to confessional evidence, notwithstanding that such confessional evidence may be corroborated by evidence suggesting it is true, in their deliberations on the ultimate issue of the whether the accused be guilty or not guilty of the offence with which he is charged.
122. However, to the extent that the trial judge in the present case, rightly or wrongly, instructed the jury that corroborative evidence should confirm both the truth and the reliability of a confession, this could only have inured to the advantage of the accused in the sense of making it more onerous for the prosecution to satisfy their burden. We consider that in the circumstances of the case no harm was therefore done by the judge’s instruction to the jury, even if unorthodox in formulation and not entirely correct.
123. For the avoidance of doubt in future cases, a correct understanding of corroboration, in the s.10 context and in other contexts, is well set out by McKechnie J in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, where he stated:
68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v. Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:
“… evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”
69. This dicta (sic) has been approved and applied by the Irish Courts on numerous occasions: see for example People (A.G.) v Phelan (1950) 1 Frewen 98 at p. 99 and more recently in People (D.P.P.) v. P.C. [2002] 2 I.R. 285, where this Court, confirmed (at p. 300) the following definition of “corroboration” as:
“… independent testimony or evidence which affects the defendant by connecting or tending to connect him to the crimes alleged. It is evidence which implicates him, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it” (pp. 297 to 298).
The reference to evidence being independent means independent of the evidence in respect of which corroboration is thought necessary. Such evidence also of course, must always be credible.
70. Thus, whilst evidence, in order to be corroborative, “does not have to directly prove that the offence was committed” (People (D.P.P.) v. Meehan [2006] 3 IR 468 at 491, para. 56), nor does it have to “corroborate the whole of the evidence of the witness who requires corroboration” (People (D.P.P.) v. Murphy [2005] 2 IR 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some “material particular”.
124. It is further complained that the trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration. We reject the first proposition without hesitation. The trial judge was clearly, and correctly in our view, of the belief that there was evidence capable of amounting to corroboration, though it was a matter for the jury as to whether it in fact did so. The jury were told that:
“…if reliance is being placed on a confession, you must consider whether or not there’s independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn’t and if at the conclusion of your analysis of the evidence you find there’s no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you’re not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you’re still perfectly entitled to convict as long as you are satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it’s absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent — what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
125. Save for the issue already dealt with concerning the definition of corroboration, this was otherwise an entirely correct and appropriate instruction. In addition, the jury were told that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.”
126. As regards contextualisation we have considered the transcript and are satisfied that the trial judge very comprehensively reviewed the evidence. The trial judge dealt with the evidence in four blocks or groups, namely direct evidence concerning the events of the night, direct evidence concerning the aftermath of the shooting, circumstantial evidence about events surrounding the shooting incident, and Garda evidence including the confessional material. The section of her charge devoted to circumstantial evidence runs to eleven pages of transcript and was detailed and comprehensive.
127. While she did not specifically isolate any piece or pieces of circumstantial evidence as being potentially corroborative and identify it/them as such, and it would have been better if she had done so, we nevertheless agree with the submission made by counsel for the respondent that in the circumstances of this case the jury would have had no difficulty in applying the generic instructions given to them by the trial judge in considering whether any individual piece of circumstantial evidence, or pieces of such evidence considered cumulatively, was or were in fact corroborative.
128. In the circumstances we reject Grounds of Appeal Nos. (vii) and (viii).
Ground of Appeal No. (ix) – repeated instruction to the jury that suggestions by counsel do not amount to evidence
129. In closing his case, counsel for the respondent told the jury in clear terms that “barristers do not give evidence.” In charging the jury the trial judge told the jury several times that suggestions by counsel do not amount to evidence. The appellant submits that this emphasised the failure of the defence to call any evidence thereby undermining the appellant’s presumption of innocence and right to silence.
130. We have no hesitation in dismissing this ground of appeal in limine. The trial judge’s instruction in that regard direction was correct in law and entirely appropriate. The jury were required to decide the case on the evidence and the evidence alone.
Ground of Appeal No. (x) – failure to instruct the jury that the rights of the accused take precedence over the rights of society
131. The appellant complains that trial judge told the jury in the introduction to her charge, that:
“…when crime is committed, even though there’s one person who or two people perhaps who are very directly affected, it is an offence against the whole of society. It isn’t just the person directly affected and it’s in society’s interest that crime be detected, investigated and prosecuted and so in this court, which is the Central Criminal Court, a branch of the High Court, every case is brought in the name of the people of Ireland.”
132. During requisitions, counsel for the appellant requested that the court highlight to the jury that if there was a conflict between the right of society to prosecute crime and the right of an accused person to have a fair trial, that an accused’s rights take precedence in circumstances where a fair trial is at all times paramount to retribution or obtaining a conviction.
133. It is complained that the trial judge did not re-visit the issue and that in failing to do so the trial judge erred.
134. The trial judge’s remarks seem to this Court to have been entirely apposite and appropriate, and we do not consider that they were objectionable in any way. Her remarks are being taken entirely out of context. The words complained of were spoken in the course of an explanation as to why the proceedings were being brought in the name of the People of Ireland. Nothing that the trial judge said, when considered in context, would have served to suggest to the jury that the right to a fair was to be subordinated to, or even ranked equally with, the society’s interest in the detection, investigation and prosecution of crime. We again would dismiss this ground of appeal in limine.
Ground (xi) – Evidence not in Dispute
135. The trial judge instructed the jury that as the arrest, charge and detention were not in dispute the members of the jury would not have to “trouble [them]selves with that”. Counsel for the appellant requisitioned her on this relying on the case of The People (Director of Public Prosecutions) v. DO’T [2003] 4 IR 286, submitting that her comments implied that where a matter was not in dispute the prosecution was relieved of its burden. The appellant contends that the trial judge did not revisit the issue and was in error in not doing so.
136. As counsel for the respondent has pointed out in reply, the trial judge did in fact offer, in effect, to revisit the matter in the course of the following exchange, and there was in fact subsequently a re-visitation albeit not in the extensive terms that counsel for the appellant had sought:
JUDGE: Well, I did before charging, Mr McGinn, suggest that I wasn’t going to do continuity evidence and I wasn’t going to do things that weren’t in dispute basically and I took it that that was agreed but do you want me to restate …
MR McGINN: No, I didn’t need the Court to remind the jury of those aspects of the case, but nevertheless the concern I have is that the jury may get the impression, as a result of what the Court said about the arrest, that if something hasn’t expressly been disputed or if there’s no difference, that therefore that there is some lifting of the burden on the prosecution and that the jury need to be told, in my submission, that each and every aspect of the case has to be proved by the prosecution, even if that aspect wasn’t contested or wasn’t challenged because it may be that for another reason the jury aren’t satisfied about it.
[Following other requisitions:]
JUDGE: Very well. In relation to I will recharge the jury in relation to the presumption of innocence in the line of that set out in the People DPP v. OT …
137. At the end of requisitions the jury was brought back and the trial judge re-addressed them, inter alia, in the following terms:
“JUDGE: Thank you. Now, ladies and gentlemen, when you retire to consider your verdict, counsel get to tell me where I went wrong in my charge to you. They’ve asked me to say certain matters to you and I propose to do so. First of all, I perhaps did not put sufficient emphasis to you on the issue or on the right of the presumption of innocence. That is a fundamental right in our criminal law. It is a constitutional right to be presumed innocent and it is it’s common to common law countries throughout the world that any accused person is presumed to be innocent. What follows from that presumption of innocence, that fundamental right, is the burden on the State, on the prosecution, to prove the offence? What arises from the presumption of innocence is that the burden is always on the prosecution to prove the offence and every element of it and to negative any defences which may appear to arise and they must do that, as I think I told you, that that proof of each element of the offence must be proved beyond reasonable doubt and so the as I say, I may not have put sufficient emphasis on it to you because I listed it with other rights that the accused has but it is a standalone fundamental constitutional right of every accused person to be presumed innocent and it follows from that that it is — the burden is always on the State to prove the case against the accused and to prove it beyond reasonable doubt.”
138. We are satisfied that the re-charge was adequate to allay any concern that, by virtue of the trial judge’s comments concerning the uncontroversial evidence, the jury might have been under the impression that where a matter was not in dispute the prosecution was relieved of its burden. The re-charge made it abundantly clear that proof of each element of the offence must be beyond reasonable doubt and that the burden of doing so rests at all times on the state
139. In the circumstances we dismiss Ground of Appeal No. (xi)
Ground (xii) – implicit indication that evidence of witnesses tendered by prosecution carried less weight than those directly examined
140. In her charge, the trial Judge stated that “[y]ou saw Mr Sammon tender a number of witnesses. He didn’t have any questions to ask them but they were offered for cross-examination.” The appellant submits that these comments appear to categorise the evidence of such witnesses differently to that of the Garda witnesses.
141. Counsel for the appellant requisitioned the court to “expressly tell the jury that those witnesses were prosecution witnesses, that they were called by the prosecution as being witnesses of truth and that their evidence was unchallenged and that given that the prosecution called that evidence, albeit that it was elicited by the defence, that the jury can rely on that evidence as being accurate if there is no challenge to it.”
142. The trial judge refused this requisition, stating:
“In relation to Mr Power senior and Ms Fullop, I don’t propose to tell the jury that they were called as witnesses of truth. No other witness was called as that they were prosecution witnesses. I think I have summarised their evidence fairly to the jury and to put an additional gloss on it that you seek Mr McGinn I think is not appropriate. The evidence of every witness has to be considered by the jury and assessed by the jury and to put an extra gloss that somehow this is of a higher class of evidence than other evidence that they heard is not, it seems to me, appropriate.”
143. We are satisfied that the trial judge’s reasons for not acceding to the requisition were cogent and rational and her ruling was one within her legitimate discretion. In any event, we are not persuaded that the concern raised by counsel for the appellant was a justified one. There was nothing in the trial judge’s remarks to suggest that the evidence of tendered witnesses elicited in cross-examination should carry less weight than those of witnesses who were not tendered and who were examined both in chief and cross-examined. The trial judge was merely stating the factual position that prosecuting counsel had had no questions for those witnesses and that they had simply been cross-examined by the defence.
144. We therefore also reject Ground of Appeal No. (xii)
Ground of Appeal No. (xiii) – failure to expressly direct the jury that the only evidence connecting the appellant to the crime was his confession
145. During requisitions, counsel for the appellant asked the trial Judge to remind the jury that the only evidence connecting the appellant to the crime was the confession, notwithstanding evidence that might be able to corroborate the confession.
146. However, this requisition was entirely misconceived as the trial Judge did in fact state in the course of her charge that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you’re not so satisfied, in which case you acquit.” The proposition contended for could not have been put in clearer terms.
147. We therefore also dismiss Ground of Appeal No. (xiii) in limine.
Grounds of Appeal Nos. (xiv) to (xvi) – complaints re the trial judge’s charge and instructions re suggestions of Garda impropriety
148. During the course of requisitions, it was acknowledged by defence counsel that the trial judge had, in the course of her charge, indicated that the prosecution’s witnesses had for the most part accepted that it was not best practice for interviewing members of An Garda Siochána to have contact with an accused person or a detainee off camera, and also that the court had gone on to explain that the reason it was not best practice was that “it can lead to suggestions being made or questions being asked about what’s happening in – during cigarette breaks”. However, it was submitted that the trial judge should have gone further than that and explained to the jury that lack of compliance with the Custody Regulations not only allows suggestions of impropriety to be made but that it also “would allow impropriety to happen and that that is why the video recording regulations were brought in, to protect not only the guards from suggestions, but also to protect detainees from impropriety itself”.
149. The trial judge decided that her charge in this regard had been adequate and was not disposed to re-visit the issue with the jury. This was in circumstances where there had been no evidence adduced of any impropriety. There certainly had been suggestions of impropriety put to Garda witnesses, but these were entirely denied and the accused had elected not to give evidence. It was in that context that the trial judge stated to the jury in the course of her charge:
“Now, in the course of … cross examination, there were a number of serious suggestions put by counsel to the gardaí and suggestions of impropriety, suggestions of threats, that Mrs Fullop would lose her job and that his partner would lose her child. Suggestions as I told you at the outset are not evidence. Suggestions made by counsel are not evidence and that is not evidence in this case.”
150. We are satisfied that the trial judge’s decision not to revisit the matter with the jury was justifiable in the circumstances of there being no evidence of actual impropriety by Garda interviewers during off-camera contacts with the appellant. We therefore reject this complaint.
151. It was further complained that the trial judge “erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.”
152. The appellant submits that this evidential support was to be found in the fact that interviewing members supervised cigarette breaks on numerous occasions coincidental to the interviews; that excuses proffered in relation to man power issues and convenience did not appear to stand up; and that there was contradictory evidence given by different Gardaí as to the reasons why best practice was not adhered to.
153. The trial Judge refused to readdress the jury on these matters.
154. We have reviewed the transcript and are satisfied that the trial judge reviewed very comprehensively the evidence given both in chief, and in cross-examination, by witnesses relevant to this ground of appeal. It is true that she did not, to use counsel’s phrase, “itemise” or list out to the jury matters ultimately relied upon by the defence as supposedly providing evidential support for suggestions of impropriety. However, it again requires to be re-iterated that there simply was no evidence of impropriety, merely suggestions thereof, and counsel’s suggestions no matter how frequently re-iterated are not evidence. We are satisfied that the trial judge’s decision not to re-charge the jury on foot of this requisition gave rise to no unfairness and it was decision that was within the legitimate range of her discretion and that she was entitled to make.
155. Yet another complaint relates to the judge’s unwillingness to accede to a further requisition:
MR McGINN: I would ask the judge sorry, I’d ask the Court to direct the jury that if they have a reasonable doubt about the propriety of the cigarette breaks for the guards, then they cannot be satisfied beyond a reasonable doubt of the reliability of the confession.
JUDGE: No, because even if there was impropriety, they could still accept the reliability of the confession. The test is whether it’s voluntary and I think it it’s over stating if I said that I could also say that if even if you thought the guards acted inappropriately, but still thought the confession was voluntary, you can act on it, so by I won’t do either I think is the fairer course.
MR McGINN: I’m in the Court’s hands.
156. The respondent has submitted that the trial judge’s approach was sensible, was correct in law having regard to The People (Director of Public Prosecutions) v Quilligan (No 3) [1993] 2 I.R. 305, and an appropriate decision rendered in the legitimate exercise of her discretion. We agree.
157. We are therefore not disposed to uphold Grounds of Appeal Nos. (xiv) to (xvi).
Ground (xvii) – allowing the jury to view CCTV footage in open court in the appellant’s presence
158. During deliberations the jury requested to view CCTV footage taken from the Tesco petrol station and also recordings of certain interviews. Counsel for the appellant expressed dissatisfaction that an edited disc had not been prepared by the respondent in anticipation of such a request that would have allowed the jury to consider it alone in the jury room. Alternative arrangements were not possible however. Counsel further expressed particular concern at the fact that the jurors were effectively being invited to compare a person visible in the footage to the appellant sitting opposite them at a time when the evidence had finished. This, it was submitted, unfairly prejudiced the appellant, allowed an issue to be re-opened after all the evidence had finished and allowed the jury’s deliberations to be impinged upon.
159. Counsel for the respondent pointed out that the jury had already been observing the appellant for 21 days and were well familiar with his appearance. Moreover, the video from the Tesco Petrol station had already been shown during the prosecution case, with the appellant present in court, and without objection, so the jury had already had an opportunity to make the suggested comparison about which concern was now being expressed. There was nothing wrong with the jury making such a comparison, if indeed they did so. The essence of real evidence is that it is evidence that the members of a jury or other fact finding tribunal can examine and assess for themselves using one or more of the five primary human senses, namely: sight, hearing, touch, taste, and smell.
160. We have considered the position and are satisfied that the procedure was not unfair to the appellant in circumstances where the same procedure had been followed without objection during the prosecution case.
161. We do not consider that the jury’s deliberations were impinged upon in any way. What was done was done at the jury’s express request. A jury is entitled in the course of its deliberations to ask to see again any exhibit that was placed in evidence. There was no new evidence, merely a further viewing of CCTV footage, which was real evidence, already adduced and exhibited in the course of the trial.
162. We therefore dismiss Ground of Appeal No. (xvii)
Conclusion:
163. We are satisfied that the appellant’s conviction is safe and that his trial was satisfactory. In circumstances where this Court has not seen fit to uphold any of the appellant’s seventeen grounds of appeal, we dismiss the appeal against conviction
Todd v. Murphy
[1998] IESC 46; [1999] 2 IR 1 (20th November, 1998)
Hamilton C.J.
O’Flaherty J.
Murphy J.
Lynch J.
Barron J.
141/98
[Judgment by Lynch J.; Hamilton C.J., O’Flaherty J., Murphy J. and Barron J. agree]
Judgment of the Court delivered pursuant to Article 34 section 4 subsection 5 of the Constitution on the 20th day of November 1998 by Lynch J.
(2)
1. This is an appeal from a judgment of the High Court (Geoghegan J.) delivered on the 15th of May 1998 deciding that the presumption that s. 32(1) of the Courts and Court Officers Act, 1995 and in particular the concluding words thereof regarding unappealability had not been shown to be invalid having regard to the Constitution.
2. S. 32(1) of the 1995 Act provides as follows:
3. “(1) Where a person (in this Section referred to as the “accused”) has been sent forward for trial to the Circuit Court, Sitting other than within the Dublin Circuit, the judge of the Circuit Court before whom the accused is triable may, on the application of the prosecutor or the accused, if satisfied that it would be manifestly unjust not to do so, transfer the trial to the Circuit Court sitting within the Dublin Circuit and the decision to grant or refuse the application shall be final and unappealable.”
(3)
4. By an order of the High Court (Laffoy J.), made on the 24 th November 1997, leave was granted to the appellant to apply by way of judicial review for ( inter alia )
“a declaration that s. 32 of the Courts and Court Officers Act, 1995 (Statute No. 31 of 1995) insofar as it purports to render the decision of the Circuit Court judge to grant or refuse the application to transfer to Dublin Circuit Criminal Court final and unappealable violates the applicant’s constitutional right to a trial by due process of law, fairness and fair procedures and is contrary to and/or not in accordance with the provisions of Article 34, Article 38 and Article 40 of Bunreacht na hÉireann.”
5. The factual background to this case is set out in a judgment just delivered in this same case relating to other grounds on which the appellant was granted leave by Laffoy J. to apply for judicial review and it is unnecessary to repeat those facts here.
(4)
6. In written submissions on behalf of the appellant in advance of the hearing in this Court it was submitted:
“Reliance will be placed on the precise wording of Article 34 section 3, subsection 4 of the Constitution which states:
‘The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law’
7. It is submitted that the Circuit Court is a court of local and limited jurisdiction from whose original decisions, there must be a right of appeal. Reference is made to page 497 of the third edition of Kelly’s The Irish Constitution which summarises the conflicting views of this Court on the issue as set out in the following cases:
The State (Hunt) v. O’Donovan [1975] IR 39;
Murphy v. Bayliss Supreme Court, 22nd July 1976, unreported .
(5)
8. It is submitted that neither decision is definitive on the issue and that the express wording of Article 34 section 3, subsection 4of the Constitution should be adhered to and also that any other interpretation which can be placed on that Article must respect the constitutional rights of the applicant including his right to fundamental fairness of procedures derived from other Articles of the Constitution.”
9. Counsel for the appellant expounded on these submissions in his oral submissions to the Court.
10. Counsel for the Attorney General referred to earlier provisions providing for the transfer of trials pending in a country Circuit Court including s. 54 of the Courts of Justice Act, 1924: s. 6 of the Courts Act, 1964 and s. 31 of the Courts Act, 1981. In the case of the 1964 and 1981 sections it was also provided that
“the decision to grant or refuse the application shall be final and unappealable.”
(6)
11. Counsel also referred to The State (Boyle) v. Judge Neylon [19861 IR 551 : Tormey v. Ireland [1985] IR 289 : The State (Hunt) v. O’Donovan [1975] IR 39 and Murphy v. Bayliss (unreported judgment of the Supreme Court of the 22nd July 1976) .
12. Counsel further instanced many statutory provisions declaring orders of the District Court and the Circuit Court to be final and unappealable. He submitted that the presumption of constitutionality had not been rebutted and that neither s. 32(1) of the 1995 Act nor any part thereof had been shown to be invalid having regard to the provisions of the Constitution.
13. Counsel for the appellant in the course of oral submissions in reply and in debate with the Court emphasised that he was not seeking to strike down the whole of s. 32(1) but only the concluding words namely
“and the decision to grant or refuse the application shall be final and unappealable”.
(7)
CONCLUSIONS
14. There is no right of appeal at common law. It follows that if the Court struck down the concluding words of s. 32(1) of the 1995 Act there would be no right of appeal at all, because none is provided by the remainder of the section. For there to be a right of appeal, it has to be provided by statute because Article 34 s. 3 subsection 4 of the Constitution declares that it is to be “a right of appeal as determined by law”. On the other hand if the Court were to strike down the whole of s. 32(1) of the 1995 Act then there would be no power to transfer the trial of the appellant to Dublin at all, which would accordingly remain in the Cork Circuit Criminal Court.
15. It follows that the appellant cannot benefit from an order that either the concluding words of s. 32(1) or the whole of that subsection are repugnant to the Constitution and invalid. Consequently, the appellant
(8)
has no locus standi to maintain such a claim and it would be contrary to the jurisprudence of the Supreme Court to go into the matter any further. The Court will, therefore, simply affirm the order of the learned High Court judge that it has not been shown that s. 32(1) of the Courts and Court Officers Act, 1995 or any part thereof is invalid having regard to the provisions of the Constitution and the Court accordingly dismisses this appeal.