DPP v O’Sullivan: Constitutional right to advance notice of DPP’s case is not displaced by s 20 of Criminal Justice Act 1984

In this case Director of Public Prosecutions v O’Sullivan, the Supreme Court held that:

The constitutional right to know in advance the case to be made by the prosecution is not [] displaced in the operation of s.20 of the Criminal Justice Act 1984.

 

Section 20(4) provides:

Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

 

Background

The DPP prosecuted O’Sullivan for burglary. Prior to trial, O’Sullivan gave the DPP notice that he would give evidence of an alibi, that he was at the home of his girlfriend (over 20 miles from the burgled premises) on the night previous to and at the time the burglary was committed. At trial, the DPP sought to introduce rebuttal evidence, that a garda had seen O’Sullivan at his mother’s home (close to the burgled premises) on the night previous to the burglary, as required by a curfew order. O’Sullivan objected to that evidence being admitted, as he was not put on notice by the DPP. He argued that it would render the trial unfair, as he would be deprived of the benefit of appropriate legal advice on how to conduct his defence. The trial judge allowed the evidence, and the jury found O’Sullivan guilty.

The Court of Appeal dismissed O’Sullivan’s appeal. It held that, as he had “dropped his shield”, there was no obligation on the DPP to give prior notice that it intended to introduce evidence that could impact on his character.

O’Sullivan sought leave of the Supreme Court for a further appeal. The DPP argued that the case did not meet the constitutional test for an appeal to the Supreme Court, that the facts were case specific and did not raise an issue of general importance. But the Court accepted that the case did raise an issue of general importance and granted O’Sullivan leave to appeal on the question:

What is the extent of the duty (if any) of the prosecution to disclose material in rebuttal of an alibi notice? If there is such a duty, when must disclosure be made?

 

Supreme Court

O’Malley Iseult J wrote the judgment for a unanimous five judge panel. She extensively discussed the history of the development through the common law and statute of the law on the disclosure of evidence. She cited Keane CJ from McKevitt v DPP (unreported, SC, 2003) on how disclosure in Ireland is a constitutional duty:

[T]he prosecution are under a duty to disclose to the defence any material which may be relevant to the case which could either help the defence or damage the prosecution, and if there is such material which is in their possession they are under a constitutional duty to make that available to the defence.

 

O’Malley J stated that, for the purposes of this case, she was prepared to accept the proposition from R v Brown (Winston) [1998] AC 367 that the prosecution could introduce evidence rebutting an alibi without notice where that evidence only goes to the credibility of the witness [78].

But she made a distinction:

There is a significant difference between saying “You should not believe this person because we have shown that he is not a credible person” and saying “You should not believe what this person says about X fact, because we have evidence that contradicts him”. The second goes to proof of a substantive issue in the case [80].

 

Allowing O’Sullivan’s appeal, OMalley J stated:

82. However, the evidence of Garda O’Driscoll could not be seen as simply aimed at establishing that the appellant should not be believed. The alibi notice made the location of the accused an issue in the case, since alibi evidence, as defined in the Act of 1984, evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission. Garda O’Driscoll’s evidence purported to place the appellant at a particular location, proximate to the scene of the offence, at a time when, according to his own evidence, he was not there. In my view it must be seen primarily as evidence relating to a disputed factual issue, the issue being the location of the appellant during the night and early morning in question. The added description of the evidence as “formal” is not of assistance in the circumstances.

83. There is the further consideration that, even if the analysis of the evidence as going only to credibility was correct in this particular case, it remains a disputed piece of evidence. To say that the defence should have known about it and anticipated it is to assume its truth, but that is not a permissible approach in terms of logic.

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