Witnesses
Cases
People (DPP) v Onumwere
[2007] I.E.C.C.A. 48 Judgment of the Court delivered on the 24th day of May 2007, by FINNEGAN J.
The applicant seeks leave to appeal against conviction and sentence. He was convicted of one count of sexual assault contrary to the Criminal Law (Rape) (Amendment) Act, 1990 section 2 as amended by the Sexual Offences Act, 2001 section 37. He was sentenced to six years imprisonment.
On the evening of 17th June, 2004 the complainant met a friend after work in Fitzsimons Hotel, Temple Bar, Dublin. At about 11 pm the complainant and her friend went to the hotel nightclub. They met a group of four or five Nigerian men and went back to their flat. The complainant retired to a bed fully clothed and fell asleep. She woke to find one man holding her down by the shoulders while the other was “pushing her from behind”. She screamed and a third man entered the room, turned on the light, whereupon the two within the room left. The complainant felt wetness on her upper thigh and also on the bed sheets next to her. She reported these events to the gardai and samples for the purposes of DNA testing were taken from her.
The gardai attended at the men’s flat. Five men were present. Four of these agreed to give DNA samples. The applicant refused.
There are ten grounds of appeal. Of these, three were not pursued at the hearing. Grounds two and three were dealt with together, as were grounds four and five and accordingly the appeal can be dealt with under five grounds.
Ground 1 – The learned trial judge erred in law in refusing to permit the accused examine the witness Werner Brown as to the nature of his recollection of the conduct of the complainant and her friend while in the hotel nightclub.
The complainant was cross-examined about her ability to recollect the events of the night in question having regard to the amount of alcohol which she had consumed and the circumstance that she was taking prescription anti-depressant medication. Her evidence was that while she had a poor recollection of the events of the evening this was due to her desire to put those events behind her and specifically this was not attributable to the consumption of alcohol or the taking of medication. She was asked did she kiss any of the males with whom she was dancing while in the nightclub and she replied that she did not. Mr Brown was a doorman at the nightclub. She was asked:
Question: So again if Mr Werner Brown comes into court and says that he witnessed you kissing and hanging around the necks of three of the men in the company he would be lying?
Answer: Yes. There is something not right about that, definitely not.
The only witness called on behalf of the applicant was Mr Brown. Before he gave evidence counsel for the prosecution objected that if Mr Brown’s evidence went to credit only then it was not admissible and that the replies given in evidence by the complainant on matters collateral to matters in issue and in particular matters going to credit were binding. Counsel for the applicant gave as the reason for calling Mr Brown the introduction of evidence in relation to the complainant’s ability to recollect the events of the evening, her conduct in the nightclub and her truthfulness as a witness. Counsel was asked by the learned trial judge if these were not matters as to credit and he replied:-
“There could be nothing more important in a sexual assault case than credibility. It is a question of both sides effectively telling their story and for the jury to determine whether or not the complainant’s story is capable of belief beyond a reasonable doubt. Now if their credibility is undermined by them having been shown to the jury to have misrepresented facts collateral to the issue then I would have to be entitled to do that”.
From this it is clear that the basis upon which it is was sought to introduce Mr Brown’s evidence was one collateral to the matter in issue namely the complainant’s credibility.
In R v Nagrecha [1997] CAR 401 the appellant had been conviction of indecent assault. The defence had a statement from a Mr Lee which contained the following –
“I found her very difficult. She suffered from what appeared to be severe mood changes … She also made allegations of a sexual nature against me when I told her to shape up at work or she would have to go. She reported this to my boss who did not believe her. Due to bad work standards she left shortly after this. She told work colleagues she had been sexually assaulted on one occasion by a taxi driver or at least there had been an attempt to do so. Also she told us a building worker had attempted to sexually assault her. No one believed what she said”.
Counsel for the defence sought permission to cross-examine the complainant about the matters contained in Mr Lee’s statement and depending on the answers which she gave be permitted to call Mr Lee to give evidence. The complainant denied that she had made any of the allegations of a sexual nature. The trial judge had held that although the defendant was entitled to ask the complainant whether she made the allegations and whether they were true as they went entirely to credit if she denies them the defence may not call witnesses to contradict her.
The Court of Appeal reviewed the authorities and held that rebuttal evidence should be admitted where such evidence goes to an issue. The court referred with approval to a passage from Cross and Tapper on Evidence (8th Ed) at p.341:-
“It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue”.
A further passage from Cross and Tapper on Evidence (8th Ed) at p.335 was also quoted with approval:-
“There are now signs of a more liberal approach to rebuttal certainly in criminal cases. A modern example is Busby where it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied by the police officer and the defence proposed to call the man who had been threatened to rebut the denial of a threat. The judge refused to permit the rebuttal applying the traditional collateral matter rule, but the Court of Appeal quashed the conviction on the basis that the defence should have been allowed to rebut the denial because it went to a fact in issue. This seems quite contrary to the decision in Harris v Tippett, and to most tests for the distinction between credit and issue, in effect, substituting substantial relevance as a test for allowing rebuttal”
Thus where consent is an issue credibility is of such importance that rebuttal evidence going to credibility may be admitted. In the present case consent is not an issue.
In the course of Mr Brown’s evidence counsel for the prosecution was asked by the learned trial judge what was the purpose of the questioning and he replied “to discredit”. He went on to say that “No My Lord it is not to discredit it is to establish credibility of one set of facts over the other”. The only facts to which this comment could relate was the alleged conduct of the complainant in the nightclub and the court is satisfied that this conduct was not a fact in issue. Accordingly, the evidence of Mr Brown was properly excluded.
Ground 2 – The learned trial judge erred in law in refusing to discharge the jury when the prosecution served additional disclosure on the defence after the prosecution had closed its case, where such disclosure pertained to the evidence given by Mr Burrington, witness for the prosecution and where the prosecution was not purporting to recall that witness.
Ground 3 – The learned trial judge erred in law and in fact in determining that the accused was not prejudiced by the fact that it was only disclosed by the prosecution after it closed its case that at least two other people, previously unknown to the defence, had been involved in the DNA evidence adduced by the prosecution during the trial where the procedures and methods used in obtaining and analysing that evidence had been challenged by the defence.
DNA evidence was central to the prosecution case. The evidence was given by Mr Mike Burrington, a scientist from the Forensic Science Laboratory, Dublin. During the course of cross-examination by counsel for a co-accused the witness explained the deletion of a reference “16” from his report. When asked why this occurred he explained that a second analyst did not detect the element 16 and that the normal practice where two analyses do not agree is that the most conservative approach is adopted. A second analysis is carried out routinely throughout the entire procedure. This was the first time that the applicant’s legal team were made aware of the existence of a second analysis.
The following day counsel for the prosecution informed the court that:
“It is best practice in the Forensic Science Laboratory, that when checking on the DNA from time to time, to get a second opinion from another scientist, in this case it was a Miss Geraldine O’Donnell. She in fact happens to be senior to Mr Burrington but was acting as a back-up scientist in each case. I am not calling her as a witness. Similarly, a Miss Linda Williams from the Forensic Science Laboratory did back-up, double checked, on some of the gel tests. I am not calling her as a witness either. … There is some five or six pages of charts or tables or notes generated by Miss Geraldine O’Donnell, and lest it be said that there has been a failure to record full disclosure in this case I’m making copies of those available now”.
An application was made to discharge the jury which the learned trial judge refused to do. The applicant’s submission is that failure to disclose the additional tests potentially prevented the defence from challenging the credibility of the DNA evidence. Reliance is placed on Director of Public Prosecutions v A.C. – Court of Criminal Appeal unreported 11th May, 2005 Denham J. The issue in that case was whether the prosecution failed to make prompt disclosure and if they did what consequences should flow. The court laid down the following principles –
“1. The court should consider, by reference to the principles already established in respect of cases where evidence emerges subsequent to trial, the materiality of the evidence.
2. The court should consider the culpability of the prosecution and the defence in relation to the late availability of the evidence.”
In this case the evidence in issue was undoubtedly made available late. The applicant claims that it had the potentiality of enabling the DNA evidence of Mr Burrington to be attacked. Notwithstanding the availability of the documents however, it is not suggested that any discrepancy other than that related to element 16 is disclosed in the additional documentation. The discrepancy was in any event disclosed in the course of cross-examination and related to samples taken from one garment only. In these circumstances the defence in no way contributed to the late disclosure. The additional evidence was confirmatory of the evidence of Mr Burrington and, accordingly, not material in the sense of being in any way exculpatory. The failure to make disclosure in these circumstances did not affect the fairness of the applicant’s trial.
Ground 4 – The learned trial judge erred in law and in fact in finding that the detention of the accused by the gardai after his arrest complied with the provisions of the Children Act, 2001.
Ground 5 – The learned trial judge erred in law in ruling that such breaches of the provisions of the Children Act, 2001 which may have occurred in relation to the accused’s detention in garda custody were not matters sufficiently prejudicial to the accused to necessitate him ruling inadmissible any evidence arising out of that detention.
The applicant has an application for asylum pending and in connection with that application he gave his date of birth as 14th August, 1986. This date appears on an identity card furnished to him by the authorities. He was arrested on the 18th June, 2004 just under two months short of his eighteenth birthday.
The Children Act, 2001 in part 6 thereof contains provisions relating to the treatment of child suspects in Garda SÃochána stations. Relevant to this application are section 56, section 58 and section 61. These provide as follows:-
“56. The member in charge of a Garda SÃochána station shall, as far as practicable, ensure that any child while detained in the station shall not associate with an adult who is so detained and shall not be kept in a cell unless there is no other secure accommodation available.
58. (1) When a child is arrested and brought to a Garda SÃochána station on suspicion of having committed an offence, the member in charge of the station shall as soon as practicable –
(a) inform or cause to be informed a parent or guardian of the child—
(i) that the child is in custody in the station,
(ii) in ordinary language and in the Irish language when dealing with a child from the Gaeltacht or a child whose first language is Irish, of the nature of the offence in respect of which the child has been arrested, and
(iii) that the child is entitled to consult a solicitor and as to how this entitlement can be availed of;
and
(b) request the parent or guardian to attend at the station without delay.
(2) (a) If the member in charge of the station—
(i) is unable to communicate with a parent or guardian of the child, or
(ii) the parent or guardian indicates that he or she cannot or will not attend at the station within a reasonable time,
the member shall inform the child or cause the child to be informed without delay of that fact and of the child’s entitlement to have an adult relative or other adult reasonably named by him or her given the information specified in subsection (1)(a) and requested to attend at the station without delay.
61. (1) Subject to subsections (2) to (4), a child who has been detained in a Garda SÃochána station pursuant to any enactment shall not be questioned, or asked to make a written statement, in relation to an offence in respect of which he or she has been arrested unless in the presence of—
(a) a parent or guardian, or
(b) in his or her absence, another adult (not being a member of the Garda SÃochána) nominated by the member in charge of the station.
(2) Notwithstanding subsection (1), the member in charge of the station may authorise the questioning of the child or the taking of a written statement in the absence of a parent or guardian, where the member has reasonable grounds for believing that to delay the questioning would involve a risk of death or injury to persons, serious loss of or damage to property, destruction of or interference with evidence or escape of accomplices.
(7) In this section references to a parent or guardian include references to an adult relative of the child, an adult reasonably named by the child pursuant to section 58(2)(a) or the adult mentioned in subsection (1)(b).”
With regard to section 56 the position is that age may be proved by various means including the statement by a witness of his own age and the opinion of a witness as to the age of another person. However where age is an issue stricter methods of proof are appropriate and the cases show that age may be proved by the admission of a party, by evidence of a witness who was present at the birth of the person concerned, by the production of a certificate of birth supplemented by evidence identifying the person whose birth is there certified by oral or written declarations. No attempt was made to prove the applicant’s age and the applicant himself did not give evidence. The learned trial judge did not make any finding as to the applicant’s age but proceeded to consider submissions on the basis that he was not at the relevant time, 18 years of age.
On the evidence of Garda Elaine O’Malley the applicant was placed in a cell: she was not able to say whether or not there were other persons with him in the cell. Sergeant Yates gave evidence that Mountjoy Garda Station did not have a detention place other than a cell and indeed has only two cells. Sergeant Joseph Kiely also gave evidence that there was no detention room in Mountjoy Garda Station but that there were no adult prisoners in the cell in which the applicant was detained. In these circumstances no non-compliance with section 56 of the Act arises.
Section 58 of the Act requires the Gardai to inform the guardian of a child of certain matters and to request the parent or guardian to attend at the station without delay but if that is not possible to inform the child of his right to have an adult present. In this case the gardai arranged for an adult to be present, a Mr Chiani. He had visits from his girlfriend who was an adult. The applicant’s contention is that within the asylum process he had assigned to him a social worker and that it was appropriate that she should be contacted for the purposes of section 58(1). The court however, is satisfied in the circumstances of this case including the applicant’s age, his access to his adult girlfriend and the need for an adult who could communicate with the applicant in his own language that the involvement of Mr Chiani for the purposes of the subsection complied with the requirements of section 58. The court would reiterate that this statutory right is substantive in nature and is not complied with by some mechanistic process or empty formula.
With regard to section 61(1) the interviews were conducted in the presence of Mr Chiani and the court is satisfied that this is a compliance with the section.
The provisions of section 66 of the Act are also relevant. Section 66(2) provides that the failure to observe any provision of these sections shall not of itself affect the lawfulness of the custody of a detained child or the admissibility in evidence of any statement made by the child. Nothing has been urged on the court on behalf of the applicant that suggests any oppressiveness or unfairness in the manner in which the applicant was treated and had it been necessary to do so the court would have applied the provisions of section 66(2) of the Act. In age the applicant fell just short of his eighteenth birthday at the relevant date and had been living independently.
Ground 6 – The learned trial judge erred in law in ruling that despite his finding that there had not been full compliance by the gardai with the provisions of the Criminal Justice (Forensic Evidence) Act, 1990 in the taking of samples from the accused during his detention at the garda station, that any such breaches as occurred did not require him to rule as inadmissible the evidence sought to be adduced by the prosecution arising out of those samples.
The 1990 Act, section 2(4) requires that consent be obtained for the taking of the samples relevant to this case. Section 2(6) requires a member of the Garda SÃochána before causing a sample to be taken or seeking the consent of a person from whom the sample is required to inform the person of the nature of the offence in which it is suspected that the person has been involved, that an authorisation for the taking of the sample has been given in accordance with the act and that the results of any tests on the sample may be given in evidence in any proceedings. Subsection 7 requires that the consent be given in writing or if given orally that it be confirmed in writing.
The Criminal Justice (Forensic Evidence) Act, 1990 Regulations 1992 (S.I. No.130 of 1992) were made pursuant to the 1990 Act. Regulation 8 thereof requires, in the case of a person who had not obtained the age of seventeen years, that the sample should be taken in the presence of a parent or guardian; the applicant here having attained seventeen years at the relevant date this Regulation has no application. Regulation 4 requires an entry in the custody record of the giving of an authorisation to take samples. Regulation 5 requires that a person from whom it is proposed that a sample should be taken should be given the information required by section 2(6) of the Act of 1990 and that a note should be made in the custody record recording the giving of that information together with the name and rank of the member who gave the information and the date and time when it was given. Regulation 6 requires that the giving or refusal of consent to the taking of a sample shall be entered in the custody record.
Counsel for the applicant asserted to the learned trial judge that no entry had been made in the custody record that an authorisation to take a sample from the applicant had been given. It is not clear from the transcript whether or not this is in fact correct. However, the evidence of Detective Sergeant Stratford is that the authorisation to take the sample was given and that he informed the applicant of this. Detective Sergeant Stratford’s evidence was that he informed the applicant that the taking of samples had been authorised. In his evidence he asked for sight of the custody record so that he could read out the samples which were in fact authorised; it would appear from this that details of the authorisation were indeed entered in the custody record. Witness further gave evidence that he explained the purpose of the taking of samples and that the results of tests can be used in the case. His evidence was that he told the applicant the nature of the offence. On this evidence there was compliance with section 2(6) of the Act of 1990.
It is consistent with compliance with the 1990 Act and the Regulations made thereunder that the applicant while consenting to the taking of certain samples did not consent to the taking of a blood sample. The applicant accordingly was clearly aware of his entitlement to refuse to consent.
Ground 7 – The trial of the applicant was unfair and/or unsatisfactory in all the circumstances.
On this ground the applicant relies on the matters raised on his behalf in relation to the Criminal Justice (Forensic Evidence) Act, 1990 and the Regulations made thereunder and the Children Act, 2001 as having the cumulative effect of rendering his trial unfair and/or unsatisfactory. All the matters so raised have already been dealt with. Having taken the same into account the court is satisfied that the applicant’s trial was indeed fair and satisfactory.
Having regard to the foregoing the applicant is refused leave to appeal against conviction.
The People (Attorney General) v. O’Brien.
Davitt P. [1963] IR 65
Supreme Court.
DAVITT P. :
16. Dec.
The appellant was tried on the 19th March last in the Limerick Circuit Court. The indictment contained one count only in which he was charged with stealing eight barrels of seed wheat, eight barrels of seed barley and ten hundredweights of compound granulated fertiliser, the property of Martin McGuire Ltd. The facts as disclosed in evidence are briefly these: on the 10th April the goods in question were ordered by telephone in the name of James Quinn, Clena, Newmarket-on-Fergus, the person who gave the order stating that the goods would be collected. On the following day there was another telephone message requesting that the goods should be left outside the store. Miss Anne Cusack, a clerk in the employment of McGuire Ltd., made out a delivery docket which was to be signed by the person collecting the goods. Some time on the 10th or 11th April she saw the accused, whom she knew, passing the window of her office. The last date on which there were dealings between her firm and either the accused or his father was on the 5th April, when there was an order for seed barley and fertiliser. On Thursday, the 11th April, Patrick Mullally, the despatch clerk, was engaged in the process of putting the goods, made up for the Quinn order, in 34 bags, outside the store as requested, when two men, whom he could not identify, approached him and said that they were taking the stuff for James Quinn. One of them, on request, signed the delivery docket in the name,”James Quinn,” and returned it to Mullally. The seed wheat was contained in sacks which bore the name, “Martin McGuire Ltd.” On a Thursday in April the appellant asked a man, named Christopher Kelly, would he go as far as Limerick to collect a load of seed corn which would be left ready for collection outside the premises at McGuires’ mills. Kelly went to O’Brien’s place where he collected O’Brien’s tractor and trailer which he drove to McGuires’. He there met O’Brien, who had preceded him in his motor car, and together they loaded some 25 or 26 bags of seed wheat, seed barley, and fertiliser. O’Brien told Kelly to drive to his, O’Brien’s, place. Kelly drove out the Ennis Road and when he had reached a place called Knockhill he was overtaken by O’Brien who told him to bring the stuff to a Mrs. Mulcahy’s. There, on O’Brien’s instructions, the goods were unloaded in an open shed and some of the seed wheat was taken out of the bags which bore McGuires’ name and placed in other bags which O’Brien had brought with him. O’Brien explained that he was doing this because the bags were charged to him at the rate of five shillings each, which sum he would be allowed on returning them. On the following day O’Brien and Kelly returned to Mulcahy’s and changed the remainder of the wheat into other bags. Sometime later O’Brien returned and took away the goods. James Quinn, in whose name the goods had been ordered from McGuires’, was at the time seriously ill and in hospital where he died on the 20th April. His wife was managing his farm. She had not ordered any of the goods, and the signature, “James Quinn,” on the delivery docket was not her husband’s.
On the conclusion of the evidence for the prosecution O’Brien’s counsel, Mr. McLaughlin, asked the learned trial judge to direct the jury to acquit his client, on the ground that there was no evidence of larceny. Sect. 44, sub-s. 3, of the Larceny Act, 1916, was referred to which provides:”(3) If on the trial of any indictment for stealing it is proved that the defendant took any chattel, money, or valuable security in question in any such manner as would amount in law to obtaining it by false pretences with intent to defraud, the jury may acquit the defendant of stealing and find him guilty of obtaining the chattel, money, or valuable security by false pretences, and thereupon he shall be liable to be punished accordingly.” The Judge heard counsel on both sides as to the proper interpretation to be placed upon this enactment and decided that he would direct the jury to acquit O’Brien of larceny and would ask them to consider the issue whether he was guilty or not guilty of obtaining the goods by false pretences. He said that Mr. McLaughlin could have the charge of false pretences specified in writing. Mr. Binchy, counsel for the prosecution, had, apparently, made a draft of such a charge and this was read to the jury and then handed to the County Registrar.
Mr. McLaughlin called no evidence and addressed the jury. The learned trial Judge summed up and the jury retired to consider their verdict. After an interval they returned to Court and the foreman intimated that they wished to ask a question, namely:”When did the accused collect his own order?” Despite Mr. McLaughlin’s objections, Anne Cusack was then recalled. She said she had a docket which would show the date on which the order was collected and produced a delivery docket, signed in the name of the accused and bearing date the 5th April. The accused was acquitted by the jury, on the direction of the learned trial Judge, of the charge of larceny, and was convicted of obtaining the goods by means of false pretences. He was sentenced to a term of six calendar months imprisonment to run consecutively upon a sentence he was already serving. The learned trial judge granted a certificate for leave to appeal on the grounds 1, that the issue of false pretences should not have been left to the jury; and 2, that Anne Cusack should not have been recalled and allowed to give evidence after the jury had retired. The appellant appealed to the Court of Criminal Appeal on these grounds and also on the further grounds: that there was no, or no sufficient, evidence to justify the conviction on the false pretences charge; that the verdict was inconsistent and perverse; and that the sentence was excessive. The Court of Criminal Appeal considered that none of the grounds of appeal had been made good and dismissed the appeal. As regards the second ground above-mentioned the Court considered that they were bound by the decision in Attorney-Generalv. McDermott (1). It was their view that it was desirable that this Court should consider whether that case was correctly decided and they accordingly granted a certificate that the case was fit for appeal to this Court.
The appellant in his notice of appeal to this Court has set out nine grounds of appeal. The first six of these are variants of the two grounds on which the learned trial judge granted his certificate for leave to appeal and were properly so reduced by his counsel in argument. The other three grounds were abandoned. The first matter to be considered therefore is whether the learned trial judge was correct in law in allowing Anne Cusack to be recalled and to give the evidence she did give after the jury had retired to consider their verdict.
The question involved is whether this departure from the usual procedure should be held to invalidate the jury’s verdict. In considering such a question it is well, I think, to bear in mind that procedure is a means to an end and not an end in itself; and that the purpose of formal procedure is to facilitate the orderly and efficient transaction of the business in question. That purpose would be frustrated if, by too rigid an adherence to forms, a proper decision on the matter in hand were to be prevented. Where the business in question is the administration of justice, whether civil or criminal, it is all the more important that procedure should be regarded in true perspective and with a proper sense of proportion; and that where there is a conflict between the requirements of justice and the forms of procedure justice should not be the one to suffer.
The procedure governing the conduct of trials in Court, whether civil or criminal, is the result of a very long experience extending over centuries, and may well be regarded as having achieved a proper balance between justice and convenience. It provides a time for the plaintiff or prosecutor to open his case, produce his evidence and close his case; and a time for the defendant to do likewise. It provides a time for the plaintiff or prosecutor, in a proper case, to produce rebutting evidence. Each side having had its opportunity to produce its evidence at the proper time, neither should be entitledto produce any further evidence. Circumstances may, however, occur which will justify the recalling by the judge of a witness, who has already been examined, after the side which called him has closed its case. For instance in 1806 in R. v. Remnant (1), which was a prosecution for larceny, after counsel for the Crown had closed his case counsel for the defence pointed out what appeared to be a defect in the case for the prosecution. The trial judge proposed, apparently, to recall a witness to enquire more particularly as to the matter in question; but refrained from doing so when counsel for the defence objected. The defendant was convicted. The trial judge reserved a point as to sufficiency of proof for the opinion of the Court for Crown Cases Reserved, who decided it against the defendant. The report states that none of the judges seemed to have had any doubt but that it would have been competent and proper for the trial judge, if he had thought fit, to have made the proposed inquiry. Again in 1835 in R. v. Watson (2)the judge recalled a witness for the prosecution, after the case for the prosecution had closed, and asked him several questions. In 1849 in Middleton v. Barned (3), after the defendant’s case had closed, the trial judge pointed out a defect in his case which his counsel thereupon sought to remedy by calling another witness. The judge refused to allow this, however, and counsel for the defence moved for a new trial. On the hearing of the motion counsel for the plaintiff submitted that it was a matter purely within the discretion of the trial judge whether to allow the witness to be called, whereupon Parke B. remarked:”We never interfere in such a case, unless it be perfectly clear that a learned judge has wrongly exercised it.” Taylor on Evidence (10th ed., 1906, vol. 2, p. 1071, at para. 1477), supporting the proposition by reference to Middleton v. Barned (3)and R. v. Watson (2) states:”The judge has a discretionary power, with which the Court above is always very unwilling to interfere, of recalling witnesses at any stage of the trial, and of putting to them such legal questions as he thinks that justice requires.” In R. v. Sullivan (4), which was a murder case, the trial judge directed the recall of certain of the Crown witnesses to rebut evidence given by the defendant; and, after counsel’s speech for the defence, recalled two of the Crown witnesses, and called a witness who had not been examined, to rebut a suggestion made in the speech. The defendant was convicted and the conviction was upheld by the Court of Criminal Appeal (Avory, Sankey and Salter JJ.). At page 58, Avory J. says:”The right or power of a judge to recall witnesses has been much discussed before us, and Mr. Bosanquet has assisted the Court in calling attention to all the authorities. It is not necessary to go through them at length, because it appears that the power of the judge to recall witnesses stands on much the same footing as the power of allowing rebutting evidence to be called; that is to say, that the judge has a discretionary power with which a Court of Appeal cannot interfere unless it should appear that a real injustice has resulted.” He then quotes the passage from “Taylor”which I have quoted, and goes on to say that the principle is recognised in R. v. Remnant (1) which he describes as a strong authority. In The State v. Kelly and Gorman (2),which was also a murder case, at the conclusion of all the evidence and before the final speeches of counsel and the judge’s charge, the foreman of the jury addressed some questions to the trial judge as a result of which a police witness was allowed to give certain inadmissible evidence to the jury. The defendants were convicted and the conviction was set aside on appeal. On the hearing of the appeal no one appears to have questioned the right of a trial judge to recall a witness at that stage of the case and to allow him to give admissible evidence. In R. v. McKenna (3) the defendant was convicted of exporting certain manufactured goods in contravention of a certain statutory order. The order would not apply to the goods unless they were made wholly or mainly of iron or steel. At the close of the case for the prosecution counsel for the defence asked for a direction on the ground that there was no evidence that any of the articles in question were made wholly or mainly of iron or steel. The trial judge thereupon recalled one of the prosecution witnesses to give evidence of the materials of which the articles were made, and then refused a direction. On appeal the Court of Criminal Appeal (Goddard L.C.J., Hilbery and Byrne JJ.) held that the course taken by the trial judge was one which had been recognised as being a perfectly proper course for many years. They referred with approval to R. v. Sullivan (1) and agreed that in the circumstances the trial judge had a complete discretion whether a witness should be recalled; and that this should not be interfered with on appeal unless it appeared that thereby an injustice had resulted.
In each of these cases there was a departure from the usual procedure or normal course of taking evidence; but in no case was there any reception of evidence after the trial judge’s summing up, or after the jury had retured to consider their verdict. The recalling of a witness even at so late a stage would, however, appear to come within the principle stated by Taylor and adopted by Avory J. in R. v. Sullivan (1).It can, moreover, be supported by other authority. Professor Wigmore in his treatise on evidence (2nd ed., vol. IV, para. 1879, at p. 31) says:”It is equally true, on the one hand, that the production of evidence after the judge has given his instructions either in part or in whole, is untimely and should in general be refused; and, on the other hand, that the trial Court may in its discretion properly allow an exception to be made; and this is the conceded principle.”In support of the principle he cites two decisions of United States Courts and notes a number of others. The following observations of Mills J. in one of the cases cited, Braydonv. Goulman (1 T.B. Monr. 115-118), decided in 1824, are I think worth quoting:”Neither side ought to be permitted to give evidence piecemeal, then to apply for instructions, and again to mend and add to his proof until by repeated experiments he shall make it come up to the opinion of the Court. An adherence to these rules, generally, will be found necessary in all cases of original jurisdiction; and without them confusion, loss of time, and captious and irritable conduct will follow. We say generally, for it will often be found necessary and proper for the presiding Court for good reasons to depart from them to attain complete justice; and whether they ought or ought not to be varied must in a great measure be left to the sound discretion and prudence of the inferior Court; and this Court for the departure ought never to interfere except injustice is done by that departure.”
Professor Wigmore goes on in para. 1880 to say:”It is clear that the reception of evidence after the jury has retired to consider a verdict reaches the extreme of irregularity. The normal time for finally closing all evidence is the time when the tribunal proceeds to deliberate upon its effect. Nevertheless, here too it may occur that evidence excusably omitted at an earlier stage may be honestly offered and justifiably received without undue advantage to the opponent. . . . Accordingly it is generally agreed that the trial Court in its discretion determining the exigency may exceptionally admit evidence at this stage.” The proposition that evidence may be admitted after the jury has retired to consider its verdict is supported by authority of long standing. Hale (Pleas of the Crown, vol. 2, 296) says:”When the jurors depart from the bar a bailiff ought to be sworn to keep them together, and not to suffer any to speak with them. After their departure they may desire to hear one of the witnesses again, and it shall be granted, so he delivers his testimony in open Court, . . .”Again, at p. 308, he says:”But if the jury after their departure from the bar desire to hear the testimony of a witness again they may be sent for into Court, and the witness may be heard again openly where the Court or parties may ask what questions they think fit.” It would, perhaps, be unwise to accept the words of Sir Matthew Hale too literally; or to assume that in his time juries had an uncontrolled right to recall witnesses, or the parties a similar right to question them when recalled. I should imagine that the Court never abandoned control. That he is speaking, however, of a well recognised practice is a reasonable assumption. Buller (Trials at Nisi Prius, 1767, at p. 308) says:”The jury after going out of Court shall have no evidence with them but what was shown to the Court as evidence, nor that without the direction of the Court . . . but they may come back into Court to hear the evidence of a thing whereof they are in doubt.” The first of the two passages which I have quoted from Hale is cited with approval in Chitty’s Criminal Law, 1826, vol. 1, at p. 633; in Gabbett’s Criminal Law, 1843, vol. 2, at p. 525; and in Huband’s treatise on juries, 1896, at p. 721. The other passage from Hale and the passage from Buller are noted by Wigmore in support of the proposition stated in paragraph 1880.
In R. v. Leary and Cooke (1), the case, which was a murder case, having been closed on both sides, the jury retired to consider their verdict. After an hour’s interval they returned to Court and wished to put a question to a Crown witness who had been examined and cross-examined. The trial judge, Ball J., in the absence of consent by both counsel, refused, saying:”I cannot permit the question to be put; the jurors must come to a conclusion upon the case as now before them.” It does not appear from the report what the question was; and it seems to us that it would be a mistake to assume that Ball J. was acting contrary to the principle under discussion. His remark is, of course, consistent with the exercise of a proper discretion.
We were referred to no authority on this particular aspect of the matter of date between 1844 and 1918. In R. v.Howarth (1), which was a prosecution for larceny, the jury had retired to consider their verdict and, being unable to agree, returned to Court and requested leave to recall and question one of the Crown witnesses. This was allowed, but the defendant was not permitted by the trial judge to ask the witness any questions. The defendant was convicted and on appeal to the Court of Criminal Appeal (Darling, Lawrence and Shearman JJ.), the conviction was set aside by reason, not of the recall of the witness, but of the trial judge’s refusal to allow the defendant to question her. Nobody appears to have queried the power of the trial judge to allow the recall of a witness at that late stage. The next authority in point of date is Attorney-General v.McDermott (2). In that case, which was a prosecution for murder, the jury had retired to consider their verdict and, after an interval, returned to Court with a request to have a State witness recalled. The witness, a police superintendent and ballistics expert, was recalled and questioned by a juror as to certain cartridge wads which had been extracted from a wound in the body of the deceased. The defendant was convicted and on appeal one of the grounds relied on was that his counsel had been taken by surprise and embarrassed by the evidence given by the witness on recall. The Court of Criminal Appeal (Sullivan P., FitzGibbon and O’Byrne JJ.) held that this ground was not established. The judgment of the Court was read by Sullivan P. who after dealing with this ground of appeal went on to refer to the circumstance of the witness’s recall. He referred to the decision of Ball J. in R. v. Leary and Cooke (3) which he considered to be in conflict with the opinion of Hale as expressed in the passage on p. 296 of his “Pleas of the Crown.” He quoted this passage and described it as “a statement of the law which has been accepted as correct by modern text-writers, and has never been questioned, so far as this Court is aware, in any reported case, and has been adopted in practice by judges without objection for the past thirty years.”
It does seem to us that by 1943 there was a very considerable force of opinion to be marshalled in support of the power of the trial judge in his discretion to allow the recall of a witness at the jury’s request after they have retired to consider their verdict. In 1943, however, the English Court of Criminal Appeal (Caldecote L.C.J., Asquith and Cassels JJ.) had to consider the appeal of one Charles Reginald Browne (1) who had been convicted of obtaining money by false pretences. He had put forward at his trial the defence that he was at the material time suffering from loss of memory. No medical evidence had been called but it had transpired that he had been examined by the prison doctor. After the jury had retired they returned to Court and repeated a request, which had earlier been refused, that medical evidence as to the defendant’s mental condition should be given. The trial judge, notwithstanding the objection of defending counsel, thereupon called the prison doctor who gave evidence. The jury convicted. The Court of Criminal Appeal set aside the conviction on the ground that the trial was unsatisfactory in two respects: firstly, by reason of the calling of the prison doctor; and secondly, by reason of an unsatisfactory summing up. In the course of dealing with the first of these two matters Cassels J. said, at p. 111:”A little regularity about the conduct of criminal proceedings and trial by indictment is not unbecoming. It is not right to regard the procedure as being in the nature of a committee of inquiry, where one member of the committee after another gets up and makes various suggestions, and at various intervals people are called in to give evidence. There is a stage for the evidence of the prosecution. There is a stage for the evidence of the defence. Then there is a stage for the summing-up, and it is wrong, as has been laid down by this Court before now, for evidence to be called at the end of a case when all the evidence available has been provided for the consideration of the Court. It is wrong for evidence then to be put before the Court, unless it comes within certain well-recognised principles.”It would appear that the Court had not been referred to any authorities, nor are any mentioned in the judgment; and it is not clear what previous decisions or what well-recognised principles the Court had in mind. Whatever these principles may have been, the loophole which they would seem to have afforded was definitely closed in R. v.Owen (2). In that case the defendant was charged with having had carnal knowledge of a girl under sixteen years of age. Some time after the jury had retired to consider their verdict they required evidence whether a clinic, where the offences were alleged to have been committed, would be empty or occupied at the material times. The judge recalled a doctor who had given evidence only as to the girl’s physical condition. He said that at the material times no one would be at the clinic unless exceptionally. The jury convicted. The Court of Criminal Appeal (Goddard L.C.J., Ormerod and Parker JJ.) set aside the conviction. The only cases cited in argument, apart from R. v. Browne (1),were authorities relating to evidence called in rebuttal before the commencement of the summing up. In a reserved judgment the Lord Chief Justice referred to these cases, including R. v. Sullivan (2), for the purpose of showing, as he said, that they were not really in point. He went on to say, at p. 21:”It is by no means uncommon for a jury to put a question to the presiding judge after he has concluded his summing-up whether before or after they have retired, and the usual practice is for the judge to tell the jury, if it is the fact, that no evidence on the point has been given and they must take it, therefore, that there is no evidence upon it, though, of course, if they ask a question upon which evidence has been given it is quite right for the judge to remind the jury of the evidence. We think this is the only safe practice and it ought to be followed.” Later on, he says:”In any case, we think it right to lay down that once the summing-up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question they may put on any matter on which evidence has been given but no further evidence should be allowed.”In R. v. Sanderson (3), however, the defendant desired to call a witness who was not available at the proper time and who arrived in Court only when the summing-up was nearly completed. On its completion the judge, on the application of the defence, allowed the witness to give evidence and dealt with it in a supplementary summing-up. The defendant was convicted and applied for leave to appeal, though it does not appear on what grounds he based his application. The Court of Criminal Appeal (Goddard L.C.J. Lynskey and Pearson JJ.) dismissed the application. In the judgment Pearson J. distinguished the case from R. v. Owen (4) because the leave and liberty in question had been extended to the defence. He continued:”It is not a matter one would wish to happen very often, but, on the particular facts of this case, we think that there is no objection to be taken to what was done here and that the learned recorder was fully justified in the rather unusual course he took.” The latest case cited to us, and the last to which I wish to refer, is R. v. Wilson (1), a decision of the Court of Criminal Appeal (Goddard L.C.J., Hilbery and Donovan JJ.). In that case the jury after retiring had returned with a question as to why one of the Crown witnesses had returned to certain premises after she had left them. She was recalled by the trial judge and gave certain evidence. The defendant was convicted and appealed successfully. In giving judgment, Goddard L.C.J. referred to R. v. Browne (2) and R. v. Owen (3). No other cases had been cited or were referred to. He considered that though the questions asked of the witness on her recall were irrelevant, and did not advance or retard the case one iota, there had been a departure from the rule laid down in Owen’s Case (3). He said that the maintenance of the principle of Owen’s Case (3) was more important than the result of the particular case in question. The Court allowed the appeal with great reluctance as the appellant had no merits.
On this review of the authorities it seems to us (as already stated) that there was a considerable weight of opinion in favour of the proposition that the trial judge has the power, to be exercised at his discretion, of recalling a witness at any stage of the case, even after the jury has retired to consider their verdict; and that very little, if any, of it was brought to bear upon the Court of Criminal Appeal in any of the English cases referred to. In this respect, at least, Sir Matthew Hale appears to be without honour in his own country. Moreover, if I may say so with all respect, justice in criminal cases is not the exclusive preserve of defendants. The Crown or Attorney General, as the case may be, is entitled as prosecutor to a fair share. If circumstances can arise which will justify the relaxation of a rule in favour of the defence, as was the opinion of the Court in Sanderson’s Case (4), it is surely possible that circumstances can arise which will justify its relaxation otherwise. We can see no distinction in principle between allowing the reception of evidence after the close of counsel’s speeches, as was done in Sullivan’s Case (5), and allowing it after the summing-up. The danger is the same in each casethat the party whose interests are adversely affected by the evidence may not have a proper opportunity of dealing with it adequately. It is doubtful if any rule can be devised which, if rigidly adhered to, will infallibly avoid all danger and at the same time be fair to both sides. The rule in Owen’s Case (1) has obvious advantages. It makes for tidiness and order. It is definite and easily operated. It enables the judge, when the jury returns with a pertinent but awkward question on which they require evidence, to say:”Gentlemen, your request is most reasonable but the law allows me no discretion in the matter. I cannot allow the reception of any further evidence and you must decide the case on the evidence already given.” As long, however, as trial by jury endures juries will return with questions which, if they are to be answered, require the recall of witnesses. These questions may be sometimes foolish and irrelevant. They will on occasions, however, be pertinent and reasonable. If they are such that the proper administration of justice really requires that they should be answered any rule of procedure which prevents them from being answered under any circumstances leaves much to be desired.
This Court is not bound by any of the decisions cited nor by any authority to which reference has been made. Whatever may be the position elsewhere it seems clear to us that the current of sound opinion in this country has been against any rigid rule such as that laid down in Owen’s Case (1).We think that opinion is reinforced by consideration of the authorities referred to other than the cases of Browne (2), Owen (1) and Wilson (3). In this country the proper rule is, in our view, that a trial judge has power in the exercise of his discretion to allow a witness to be recalled and to give evidence at any stage of the case before the jury agrees on a verdict. That discretion must, of course, be judicially exercised. The propriety of recalling a witness and of the questions addressed to him must to a great extent depend upon the course of the trial, the facts of the case, and other matters which can be fully and properly appreciated only by the trial judge himself. His discretion should therefore not be interfered with unless an injustice has resulted from its exercise. In our opinion the learned trial judge properly exercised his discretion in recalling Anne Cusack and allowing her to give the evidence she did give.
The other ground of appeal depends upon the view taken of s. 44, sub-s. 3, of the Larceny Act, 1916. Counsel for the appellant contend that the section cannot operate unless there is evidence on which the jury could convict of larceny; and that it has no application where the case is one of false pretences or nothing. It is only, it is submitted, when the jury has a choice between convicting of larceny and convicting of false pretences, according to the view they take of the evidence, that they can do what the section saysacquit of larceny and convict of false pretences. In this ease the trial judge, it is argued, properly held that there was no evidence of larceny: the jury had no choice as between larceny and false pretences; therefore the sub-section had no application. The difference in wording between sub-ss. 2 and 3 was stressed as giving support to the submission. Sub-sect. 2 contains no reference to acquittal.
It is conceded, of course, that in the case of certain closely allied offencescall them A and Ban indictment charging a defendant with A only can, in certain circumstances, have the same effect as if it charged him also with B in the alternative. The offences may be so closely allied that on occasions it may be difficult to say whether the evidence establishes the one or the other. The evidence on the depositions may be such that the prosecution may feel justified in charging A only in the indictment; while the evidence eventually given before the jury, though clearly establishing B, is such that the jury must be directed to acquit on A. Call this case I. On the other hand, the evidence given to the jury may be such that if a certain view of it is taken it establishes A, while, if a different view is taken is establishes B. Call this ease II. The object of the section, it is conceded, is to prevent the absurdity of a defendant, in the case of offences so closely allied, successfully making the defence that he cannot be guilty of A, with which he is charged, because he is guilty of B, with which he is not. So much being conceded, it is difficult to see any point or sense in providing for case II and not for case I.
The Larceny Act, 1916, is, like its predecessor, the Larceny Act, 1861, a consolidating statute. Sect. 44 comprises sub-sections taken from that Act and from the Criminal Justice Administration Act, 1914. Sub-sect. 1 is a re-draft of s. 41 of the Act of 1861, which in turn is taken verbatimfrom s. 11 of the Criminal Justice Administration Act, 1851, and which contains no reference to acquittal. Subject. 2 is a re-draft of s. 72, which is taken almost verbatimfrom s. 13 of the Act of 1851, and which does provide for acquittal on the offence charged. Sub-sect. 3 is a reenactment, with the alteration of one word only, of s. 39, sub-s. 2, of the Act of 1914. It is not easy to see why these three sub-sections should not have been similarly worded; or why sub-s. 1 should provide for acquittal when its predecessors did not; or why sub-s. 2 should omit the provision for acquittal contained in s. 72 of the Act of 1861 and s. 13 of the Act of 1851. Whatever the reason may be for the difference in wording it seems to us that its object or effect can hardly be to secure the result for which counsel contend. A defendant charged with the offence of embezzlement contrary to s. 17 of the Larceny Act, 1916, and given in charge to the jury accordingly, is surely entitled to be acquitted if the evidence fails to establish his guilt. He may, under the provisions of s. 44, sub-s. 2, be convicted of stealing, if the evidence justifies such a verdict; but the mere fact that the section does not expressly provide for acquittal on the embezzlement charge can hardly mean that he cannot be acquitted on that charge. If it is implicit in the sub-section that he can be acquitted of embezzlement then the difference between sub-ss. 2 and 3 is merely that the latter makes explicit what is implicit in the former. This difference is hardly sufficient to sustain counsel’s contention in so far as it is based upon the difference in wording between the two sub-sections.
As already mentioned, sub-s. 2 of s. 39 of the Criminal Justice Administration Act, 1914, is repealed by the Act of 1916 and re-enacted in s. 44, sub-s. 3, with the substitution of the word, “stealing,” for the word, “larceny.” Subject. 1, however, remains. It provides that where a prisoner is arraigned on the indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty to the offence charged but guilty of the other offence. If the contention of appellant’s counsel were to be accepted it would have this curious result. In case I the defendant could to the indictment plead guilty of an offence of which he could not be convicted. This hardly seems reasonable. I think that the effect of s. 44, sub-s. 3, is that an indictment charging larceny is to be deemed to include the alternative charge of obtaining the property in question by false pretences. To that indictment the defendant can plead”not guilty” of larceny but “guilty” of false pretences. If, however, he simply pleads “not guilty” he raises for determination by the jury the issues whether he is guilty or not guilty of larceny, and, alternatively, whether he is guilty or not guilty of false pretences. These issues may be determined in the usual way by the jury convicting or acquitting on either charge, whether they acquit of larceny by direction of the judge or otherwise. The answer to counsel’s submission is that the words of s. 44, sub-s. 3, taken in their ordinary and natural meaning, fully justify the course taken in this case by the learned trial judge.
There is in our opinion nothing elsewhere in the section to indicate that they should be read in any other sense.
Counsel for the appellant very properly drew our attention to the case of R. v. Russell (1), where the trial judge took the same course as was taken in this case. On the hearing of the appeal no counsel appeared on either side. The appeal was refused. The point made in this case was not considered by the Court, which consisted of Humphreys, Asquith and Cassels JJ. It did not occur to them, or, if it did, it was not considered worthy of mention in the judgment.
In our opinion none of the grounds of appeal relied on by the appellant has been established and the appeal should therefore be dismissed.
THE PEOPLE (at the suit of the Attorney General) v. Kehoe
[1951] IR 70
Central Criminal Court. 18,19 June 1951
CRIMINAL PROSECUTION.
James Kehoe was charged at the Central Criminal Court, in Dublin, upon three counts of having unlawful carnal knowledge of a woman who was feeble-minded in circumstances which proved that James Kehoe knew, at the time of the alleged offences, that such woman was feeble-minded, contrary to s. 4 of the Criminal Law Amendment Act, 1935 (No. 6 of 1935). In the course of the trial counsel for the prosecution tendered in evidence the woman with whom the unlawful carnal knowledge was alleged to have taken place. Counsel for the accused objected to the witness giving evidence, upon the ground of incompetency, submitted that the Judge should examine the witness to determine whether she understood the nature and obligation of an oath, and reserved the right to cross-examine the witness or to call evidence upon this issue.
Noel Peart for the accused:
When a lunatic is tendered as a witness, it is for the judge to ascertain whether he is of competent understanding to give evidence and is aware of the nature and obligation of an oath. This may be done by examining him on the voir dire or by evidence aliunde: R. v. Wakefield (1). The witness may be examined and cross-examined: R. v. Hill (2).The party taking the objection may call evidence upon this issue: Dewdney v. Palmer (3).
Noel K. MacDonald, for the Attorney General:
The duty of determining the competency of the witness is reserved to the judge; the mode of conducting the examination is a matter for the discretion of the Court.
MAGUIRE J. :
I propose to follow the practice in R. v. Hill (1), which I accept and believe to be correct. Counsel for the Attorney General will examine the witness to demonstrate her competency, and counsel for the accused will be permitted to cross-examine and to call evidence upon this issue, if he thinks proper. The final determination of the issue is for the judge alone.