New Appeal: Must the DPP clarify inconsistencies in a witness’s statement before deciding to prosecute?

In this determination, DPP v DH, the Supreme Court granted the DPP leave for a leapfrog appeal from the Central Criminal Court on three questions:

 

(i) Does either the prosecution or the defence have a right of appeal against an order of a trial judge staying a trial pending the taking of further steps by the prosecution?

(ii) In considering whether to stay a criminal trial after its commencement, is a trial judge bound to apply the same test as that appropriate to judicial review proceedings aimed at quashing a decision to prosecute?

(iii) Does the Director of Public Prosecutions have a duty to clarify serious inconsistencies in a witness’s statements before deciding to prosecute, where such inconsistencies may go to the reliability of that witness’s evidence, or is it sufficient that disclosure of such inconsistencies is made to the defence?

 

Background

This case concerns allegations of numerous counts of rape and indecent assault of a young girl dating back to 1987 – 1989.

At trial, DH sought to have the prosecution stayed on grounds of culpable prosecutorial delay. In a voir dire trial, the trial judge did not accept DH’s arguments on delay. However, it emerged that the girl’s social worker (Ms C) had noted in 1995 that the girl was not certain that intercourse had taken place; although at the time of trial the complainant was certain that it had.

The trial judge ordered a stay on the prosecution of the rape charges, stating:

This is a piece of evidence that might indicate that [the complainant’s] evidence to the Court, while truthful and honest might not be reliable and the duty was on the prosecution to explore that evidence, bearing in mind that the risk of an unfair trial that everyone accepts can follow from long delay.

The DPP sought leave for a leapfrog appeal against that order directly to the Supreme Court. The constitutional threshold for a leapfrog appeal are (1), an appeal must be in the interests of justice and (2), there must be exceptional circumstances.

The DPP did not argue that she could not fulfill the terms of the stay. She argued that she met the constitutional threshold as she had no right of appeal to the Court of Appeal where the Central Criminal Court order is not an acquittal, conviction or sentence (1), and it would lead to an inequality between her and the accused if the Supreme Court did not grant leave (2).

The Court determined that the DPP met the constitutional threshold and granted leave.

On appeal “the Director intends to argue that the trial judge applied an incorrect test in exercising her jurisdiction to impose a stay; that she failed to have regard to the limited grounds upon which a decision to prosecute can be reviewed by the courts; that she erred in considering that there was a real risk of an unfair trial having regard to the fact that the documents in question had been disclosed; that she focussed disproportionately on the hearsay accounts of words used by the complainant in the earlier investigations; and that she erred in concluding that the alleged inconsistencies justified the staying of a prosecution”.

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Donegal Investment v Danbywiske: Trial judge must explain reasons for disregarding expert evidence

Here, the Supreme Court (Clarke J writing) held that the High Court trial judge (McGovern J) erred by not expressly explaining his reasoning for adopting a different approach for the valuation of shares to that proposed by expert evidence by either parties to the dispute.

 

Background

The background to these proceedings are explained in the Court of Appeal judgment (here). The parties are shareholders in a holding company, Elst, which owns Monaghan Mushrooms. Donegal issued High Court proceedings under s 205 of the Companies Act (shareholder oppression). The High Court ordered that Danbywiske purchase Donegal’s shares.

In the High Court (here), McGovern J heard expert evidence from both sides but chose a different method of valuation from either of the proposed methods. He ordered that Danbywiske pay Donegal €30.6 million for its 30% share in Elst.

The Court of Appeal overturned that valuation and ordered that the case be returned to the High Court for a determination of value. The CoA held that McGovern had not adequately explained his reasons for reaching his determination on value. Danbywiske applied to the Supreme Court for leave to appeal that decision.

The Supreme Court granted leave on three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

Dismissing the appeal the Supreme Court stated:

9.1 For the reasons set out in this judgment I am satisfied that it is open to a trial judge to adopt a methodology or approach which differs from each of the approaches advocated in the expert testimony tendered by the parties. However, where a trial judge is persuaded to adopt a different approach, it is necessary for the judge to structure the judgment in such a way that either expressly explains why the approach adopted is considered to be appropriate notwithstanding the expert evidence tendered or that, at a minimum, the reasoning of the trial judge in that regard can be inferred with some reasonable level of confidence.

9.2 There is even some doubt as to the precise approach actually adopted by the trial judge in this case. But even if the approach actually adopted can be inferred to a sufficient level of confidence, I am satisfied that the Court of Appeal was correct to hold that the reasons why the trial judge utilised the approach which he did are neither clear from the judgment nor can safely be inferred.

Dr Vicky Conway provides a case comment on DPP v Doyle

vicky_conway_001Dr Vicky Conway of the Department of Law and Government at Dublin City University has commented on DPP v Doyle [2017] IESC 1.

This post was originally published on humanrights.ie.

 

 

The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least.

The dissenting judgment of Justice McKechnie has not been posted online at the time of writing, but an initial reading of the five majority judgments indicates that while they are not willing to determine that such a right exists in this case, they can envisage a situation where that becomes the position in Irish law in the future.

In November 2008 Shane Geoghegan was murdered in Limerick, having been mistaken for a member of a criminal gang. Mr Barry Doyle was convicted of this murder on the basis of a confession he made while in garda custody in February 2009. The circumstances of the confession, in particular a concern as to inducements, and the fact that he did not have a lawyer present during the interview in which he made the admission, formed the grounds of this appeal. I will focus here solely on the issue of whether there is a right of presence of a lawyer.

Mr Doyle was detained for over 60 hours and spent over 20 hours being interviewed by gardaí. During this time he had some 40 minutes of consultation with his solicitor, no longer than 10 minutes in any instance. He was not denied access to his lawyer at any point and gardaí obliged and stopped interviews to facilitate consultations on request. He made a confession in the 15th interview, which formed the basis of this appeal.

Justice Charleton, with Justice Laffoy concurrning, offers perhaps the strongest resistance to the finding of such a right. Charleton J outlines the existing jurisprudence on this issue, which in Ireland has clearly indicated that a detainee has a right of reasonable access to a lawyer, which includes numerous consultations with solicitors but does not extend to their presence in interview. In doing so his focus is very much on the implications: a finding of a right would mean that any detention in breach of that right would be unlawful and so any evidence gathered during that detention would be excluded. In the instant case it would mean Barry Doyle’s conviction for the murder of Shane Geoghegan would be overturned, despite a voluntary confession.

Central to Charleton J’s resistance to find the existence of the right is a belief that there is a lack of jurisprudential support for such a move. Looking to jurisprudence from Europe and other jurisdictions Charleton concludes that “What is of importance is that there is no decision of the European Court of Human Rights stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime.”

Many familiar with ECtHR law will be surprised by this conclusion. The decision in Salduz v Turkey (2008) is generally credited with having achieved exactly that. In that case the European Court of Human Rights found:

“that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

Justice Charleton does not feel that this requires the presence of a lawyer in the interview. The only precedent he can identify in support of the presence of lawyers in the US case of Miranda, where the provision of this right was justified as a requisite balance to address substantial concerns about police brutality, oppression and coercion:

 “In contrast to the situation described [in the case of Miranda] are the safeguards applicable from the moment of arrest in this jurisdiction that have been closely and carefully constructed over decades of experience. In contract too is the direct applicability of such rights… [the ruling in Miranda was] designed to lance a poisoned boil of secret compulsion which is utterly foreign to modern police methods.”

He then outlines the extensive safeguards provided to detainees in Ireland: they are informed about their rights when detained, there is a custody officer to ensure their rights are complied with and they have access to legal advice prior to questioning. Further, the video recording of interviews means that these are subject to judicial scrutiny.

Justice Charleton states “It cannot therefore be concluded that it is a necessary part of the right to a trial in due course of law under Article 38.1 of the Constitution that a lawyer should be present for the interviewing of a suspect in garda custody.” Justice Denham, in a shorter judgment, equally states that “the right is one of access to a lawyer, not of the presence of a lawyer during an interview.” She is satisfied that both constitutional and Convention rights have been met in the current case.

Justice MacMenamin, following a review of recent jurisprudence and noting the recently implemented EU Directive, finds that “I would now be prepared to recognise such a right under Article 38.1 in future cases”. His reasoning for not doing so in the current case is that he feels the appellant is seeking a ‘retrospective recognition and application of a then unrecognised constitutional right’ and that this ‘proposition stands logic on it’s head.’

As regards the decision of Salduz, Justice MacMenamin distinguishes the case on the facts as the detainee in that case was a 16 year old, who was beaten by police in custody. The fact that the current applicant was not vulnerable, was not mistreated in such ways, and had continued consultation access to his lawyer, distinguishes it from that case.

Justice O’Malley appears similarly open to the finding of such a right but not in the current case. She finds there is “some strength in the argument that” the Irish decision in Gormely and White, combined with the decision in Salduz and the jurisprudence of other countries “could logically lead to a reconsideration of the decision in Lavery and to a ruling that the right to a fair trial implies a constitutional right to the presence of a solicitor during questioning.” She predicts that this is likely to arise soon in relation the inference from silence provisions, an indication that she sees this as the space where the solicitor’s presence in the interview might be of particular importance in the vindication of rights.  Ultimately she takes the rather unusual step of stating: “I do not believe that the instant case is an appropriate one in which to reach a definitive view on the matter and would prefer to reserve my position on it… “

Justice O’Donnell also finds that the right does not extend to the presence of the solicitor in garda interviews but it is clear in his judgment that he can foresee it becoming a part of the right in the future. He places particular relevance on the current decision for cases prior to May 2014, when solicitors were permitted to attend interviews, though recognises that for post 2014 cases there may be ramifications for a finding that there is a constitutional right.

He distinguishes Salduz as relating to a civil law system with early supervision of investigation by a magistrate so it cannot be said that it has been conclusively determined that the accused should have solicitor present in common law systems. This is a rather unusual way to distinguish European case law, particular given that the earlier judicial involvement in civil systems arguably means that they have greater safeguards than we do. Solicitor presence should therefore be a great imperative in Ireland.

He acknowledges that a clear finding of a constitutional right, a so called “bright-line rule” would bring ‘neatness, clarity and simplicity’ but then proceeds to outline many reasons why this cannot be done here. Having distinguished Salduz as he has, he feels, like Charleton J, that Miranda is the only precedent for such the appellant’s position. On this point he holds that in Ireland

“a lawyer’s presence is no longer necessary as an independent witness of events during questioning. It is doubtful that it can be said that the function of a lawyer is to provide moral support or indeed that anything in lawyers’ training qualifies them for such a role. Indeed the function of a lawyer is to provide legal advice…”

This is, in itself, arguable. It is less than a decade since the most damning report of the Morris Tribunal report on the treatment of suspects in custody. While much has certainly changed, it would seem a backward step to suggest that we should not be vigilant regarding the conduct of interviews. Further, as John Jackson has analysed in a recent article in the Modern Law Review (paywalled), the role of the defence lawyer is much broader than providing legal advice: the defence lawyer should protect the detainees rights, including the privilege against self-incrimination, prevent miscarriages of justice, fulfil the aims of Article 6 of the ECHR, perform a representational (rather than advisory) role in complex cases, give the suspect time to instruct their legal advisor in the preparation of a defence. In Dayana v Turkey the ECtHR stated:

“the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”

There is a need in Ireland for a broader conceptualisation of the role of the lawyer and this may be key to future development of the law in this area.

Justice O’Donnell continues, stating that if the Court found that there was such a right, the implication would be that the statement in this case, which was voluntarily given, should be excluded. He notes that if the Court thought this was the only way to achieve fair garda questioning it would do so but that was not the case in this instances.  He concurs with his colleague Justice O’Malley that cases involving inferences from silence present certain complexities and that he “recognise[s] the reality that it may in due course be simply easier and neater to provide for presence by a lawyer as the best guarantee that such provisions are operated properly and fairly.”

Comment

As regards the existence of a right to have a solicitor present in the garda interview, while Justice Charleton, Laffoy J concurring, is clear it does not form part of the right of access to a lawyer, there is great scope in the other judgments for a different interpretation in the future. We know from reference by others to his judgment that Justice MacKechnie believes the right currently exist. Justice MacMenamin believes it should exist in the future. Justices O’Donnell and O’Malley both explicitly reference inference from silence cases as ones where it might be explored further. A close reading of these judgments makes it clear that this is not a closed issue in the Irish Supreme Court.

Further, the current scheme whereby solicitors are permitted to attend interviews is relied upon substantively in the judgments. It is noted in each judgment. Justice Denham describes it as an ‘important factor’ in her judgment and a presumption that it is now the established practice seemed to underlie some of O’Donnell and O’Malley JJ’s comments. A valid question in light of the headline decision of the judgment is whether the DPP would now rescind the permission she had granted for solicitors to attend interviews, however, the judicial commentary on the scheme is supportive and seems to assume its continuation. It would, I contend, be difficult for the DPP to make that decision, particularly in light of the fact that she has permitted it for the past two and a half years when equally there was no established right. That has not changed.

I should also highlight the way in which the decision in Salduz has been discussed in the judgments. This decision has been distinguished in the current case by both Justices MacMenamin (on vulnerability grounds) and Justice O’Donnell (due to the nature of the legal system). Justice Charleton uses it only support of a statement that no general right has been found by the court, which is a somewhat unusual interpretation of the above. I contend that these are problematic grounds for not applying the test outlined in that case, which has been repeatedly applied as the appropriate standard in subsequent ECtHR cases.

Finally, it should not go with comment that, on the face of what is outlined in the judgments, questions should be asked about the standard of legal advice provided in this case. Forty minutes of advice over 60 hours of detention for a murder charge seems, without further detail, inadequate. Since that particular detention the context has changed and solicitors now attend interviews as well as consultations. The SUPRALAT project, of which I am a member, is undertaking the first training of solicitors in Ireland in relation attending garda interviews and has been accredited by the Law Society Professional Training unit. Such training is essential to ensure effective defence in the garda station.

DPP v Doyle: Supreme Court’s Information Note

The Supreme Court issued the following Information Note to accompany the Court’s five written judgments, which are available on the Courts Services website.

18th January 2017

The Supreme Court

DPP v. Barry Doyle

Information Note

1. Barry Doyle, the accused/appellant, referred to as “the appellant”, was granted leave to appeal to this Court from the decision of the Court of Appeal of the 8th June, 2015: [2015] IESCDET 45. The Director of Public Prosecutions, the prosecutor/respondent, is referred to as “the DPP”.

2. The issues upon which leave to appeal was granted were:

(i) Whether or not the appellant was, in the circumstances of this case, entitled to consult with a solicitor, and have a solicitor present, prior to and during the 15th interview with the Garda Síochána, during which admissions were alleged to have been made. This raises the question of whether the right to have a solicitor present during questioning is a matter of right of the detained person, or a matter of concession by the Garda Síochána.

This will be referred to as “the presence of a solicitor” issue.

(ii) Whether the appellant, in all the circumstances, including that he was convicted in the Central Criminal Court on the 15th February, 2012, and the decision of the Supreme Court in DPP v. Damache was delivered on the 23rd February, 2012, can rely on that decision on his appeal.

This will be referred to as “the Damache” issue.

(iii) Whether the matters set out in the appellant’s application under the heading “Relevant facts considered not to be in dispute”, or any of them, constituted threats or inducements made to the appellant and calculated to extract a confession from him. This is a matter not decided by the Court of trial or the Court of Appeal. Secondly, if they do constitute such threats or inducements, whether their effect had “dissipated” or “worn off” by the time of the admissions relied upon by the State, as held by the trial judge; and whether or not there was any evidence on which it could have been determined that the effect of the said threats or inducements (if any) had “dissipated” or “worn off” by the time of the alleged admissions.

This will be referred to as “the threats and inducement”   issues.

3. On the first issue, as to whether the appellant was entitled to have a solicitor present during the 15th Interview, 6 members of the Court would dismiss the appeal, although on different bases; a majority of the Court (Denham C.J., O’Donnell J., Laffoy J. and Charleton J.) hold that the constitutional right is to have access to legal advice, and that it was not required that the appellant, in the circumstances of the case, have a solicitor present during the 15th Interview.

4. MacMenamin J. concurring, holds in principle that the Constitution requires in future that a lawyer be present for the interrogation. But, applying DPP v J.C. [2015] IESC 31, he holds that the admissions would not be excluded. He does not consider that the right asserted is recognised in ECHR jurisprudence.

5. O’Malley J. reserved her position as to the existence of a constitutional right, on the basis that it does not properly arise as an issue on the facts of this case.

6. McKechnie J. dissenting, both as to reasons and result, holds that the presence of a lawyer is required under the Constitution and would allow this ground of appeal. However, in light of his conclusion on the third issue, he did not find it necessary to determine the consequences of a breach of such a right in this case.

7. On the second issue, the Damache issue, the Court held that the appellant, in all the circumstances, could not rely on the decision in DPP v Damache [2012] 2 I.R. 266, on his appeal.

8. On the third issue, the issue of threats or inducements, the majority of the Court dismiss this ground of appeal.

9. McKechnie J., dissenting, holds that each of the three limbs of the test in People (DPP) v. McCann [1998] 4 I.R. 397 has been satisfied and, accordingly, that the admissions made result from an inducement. As a result, the admissions so made were inadmissible and on such basis he would order a retrial.

10. For the reasons given, the Court dismisses the appeal.

DPP v McD: Court orders retrial, after acquittal, as trial judge had erroneously excluded compelling evidence

Here, the Supreme Court granted the DPP an order under s 23 of the Criminal Procedure Act 2010 directing the retrial of McD. The Court held that the Circuit Court judge had erroneously excluded compelling evidence before directing the jury to return a not guilty verdict. On the evidence in question, the Court held that the trial judge had incorrectly determined that CCTV footage was possibly hearsay evidence and that the investigating gardai had incorrectly invoked s 19 of the Criminal Justice Act 1984 during interrogation.

Law

S 23 of the Criminal Procedure Act 2010 (link) provided a procedure whereby the DPP (or Attorney General, where appropriate) could appeal to the Supreme Court against an acquittal where it was believed that the trial judge had erroneously omitted compelling evidence. Such appeals now go to the Court of Appeal.

S 19 of the Criminal Justice Act 1984 (link) allows a trial court to draw an inference from an accused person’s refusal to give an account of their presence at the scene of a crime. An accused person can not be convicted solely on that inference. It is corroborating evidence.

Background

Gardai arrested McD at a car park in an apartment complex soon after a vehicle there had been set on fire. During questioning, McD stated that he had followed children into the car park to see what they were up to but that he had not been near the car. Gardai arrested McD a second time after they had received CCTV footage from the complex manager showing McD at the car when it was set on fire. At first McD refused to answer questions. The interrogating officers then invoked s 19 of the Criminal Justice Act 1984 informing McD that a court could draw inferences from his failure to give an account for his presence at the crime scene. McD then made an inculpatory statement.

At trial before the Circuit Court, McD argued that the CCTV evidence should be excluded as hearsay as the State had not provided any evidence as to the operation of the CCTV system: whether it was automated or required human intervention. McD also argued that the interrogating garda had incorrectly invoked s 19 of the 1984, as he had given an account of his presence at the scene during his first interrogation. Therefore, McD argued, his inculpatory statement was inadmissible.

The trial judge accepted McD’s arguments. She held that she was bound by DPP v Murphy [2005] 2 IR 125 that the State was obliged to call evidence on the function and operation of the CCTV system, otherwise such evidence could be considered hearsay evidence. The trial judge also held that she was bound by DPP v Devlin [2012] IECCA 70, which she interpreted as authority that s 19 could not invoked where a suspect had given any account for their presence at the scene of a criminal offence. The trial judge directed the jury to return a not guilty verdict.

The DPP appealed that decision under s 23 of the 2010 Act.

Supreme Court

McKechnie J wrote the judgment for the Court. Denham CJ, O’Donnell J and O’Malley J concurred. The Court held that the trial judge had incorrectly interpreted Murphy. Murphy applies to evidence recovered from computer type recording systems where humans input information. In such cases the evidence can be treated as hearsay unless the human element is attested to in court. The Court set out guidelines on the general law on CCTV evidence, [63]:

(i) CCTV footage, as a matter of principle, should be regarded as real evidence and not as hearsay; evidence as to its operation and functionality is therefore not required to establish this;

(ii) If specific circumstances should put this distinction or conclusion in issue, the same should be determined in the normal way;

(iii) Material generated by other machines or devices, such as computers, may either be hearsay or real evidence; this depends on whether or not what is sought to be tendered is the direct product of human intervention;

(iv) Human intervention in this context means that such material has passed through a human mind and is simply reflective of human input;

(v) CCTV footage does not enjoy any evidential presumption, nor should a court take judicial notice of it;

(vi) Rather, it must be proved in an appropriate manner and to the required standard; depending on challenge or concession this will, in part, be case specific;

(vii) In general, its provenance and authenticity must be established, as must any other material requirement normally associated with real evidence, such as relevance, probative value etc;

(viii) Objection to its admissibility may be taken on any sustainable ground, including those covered by the exclusionary rules, or such other as may arise on either the facts or the law of the case;

(ix) As with any piece of admissible evidence, its weight, value and credibility are matters for the jury;

(x) Because of its potency, care must be exercised to ensure the overall integrity of such evidence.

By those guidelines, the CCTV evidence was admissible.

On s 19 0f 1984 Act, the Court stated that an accused person could easily circumvent the operation of s 19 if it was only required of them to give any manner of an account of their presence at the scene. Therefore, “it must be the case that a minimum level of plausible engagement is required before an account can satisfy the requirements of section 19 of the 1984 Act. What that necessarily will be will involve a consideration of the entirety of the circumstances presenting in each case”[101].

In the circumstances of this case, McD’s account during his first interrogation, that he had not been near the burnt car completely contradicted the CCTV evidence showing him at the car prior to the fire. Therefore the interrogating garda did not incorrectly invoke s 19, and McD’s inculpatory statement was admissible.

On s 23 of the 2010 Act, McKechnie J referred to the only previous case where the Court had addressed that provision: DPP v JC (post). In that case the Court scrutinised s 23 and expressed “divergent views”. McKechnie stated: “I wish to emphasise in the strongest possible terms that this provision stands outside what is normative in our criminal justice system. Accordingly, I would deprecate the random or routine use of the section” [112].

However, as the trial judge had erroneously excluded both the CCTV evidence and McD’s statement, and as McD had not advanced significant reasons not to do so, the Court granted the DPP an order for a retrial.

DPP v Colbert: Appellate court can interfere with trial judge’s sentence where the justice of the case demands

Prison2As a general rule, an appellate court cannot consider events which occurred after a trial when reviewing a sentence and should not interfere with a sentence unless it is satisfied that the trial judge committed an error in principle. That general rule is “subject however to an exception that the court should do so where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial” O’Donnell J [21] (here).

Background

In February 2010, Colbert was convicted of a number of offences of rape and sexual assault and was sentenced to eight years in prison. In July 2011, the Circuit Court convicted Colbert for 10 other offences of sexual assault. The trial judge considered Colbert’s previous conviction and sentenced him to four years in prison for each of the 10 offences, to run concurrently with his previous sentence.

In October 2011, the Court of Criminal Appeal quashed Colbert’s 2010 conviction and ordered a retrial. The complainant decided not to give evidence in the retrial, and the DPP entered a nolle prosequi.

In 2012, Colbert appealed against the sentence for the 2011 conviction. In 2013, the Court of Criminal Appeal dismissed Colbert’s appeal, holding that it was precluded by  The People (DPP) v Cunningham [2002] 2 IR 712 from interfering with the trial judge’s sentence where no error in principle was identified. However, it released Colbert on bail, as he had served three years in prison since his first conviction, and certified two questions for an appeal to the Supreme Court:

(1) Whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody by the appellant for a conviction subsequently quashed, and

(2) whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody on remand by the appellant even where he was at the same time serving a sentence for a previous conviction subsequently quashed.

Supreme Court

The Court issued two judgments and was unanimous in its decision. O’Donnell J wrote a judgment clarifying the jurisdiction of appellate courts to review sentencing. Denham CJ, O’Donnell, Clarke, Charleton and O’Malley JJ concurred  Charleton J and O’Malley J wrote a joint judgment (here) relating to the application of the law to this case. The other three judges concurred.

O’Donnell accepted that it is understandable that the general rule from Cunningham became interpreted as a strict rule. In Cunningham it was held that an appellate court cannot consider a prisoner’s good behaviour as a grounds to reduce a sentence on appeal. That would offend the separation of powers, as there is statutory guidelines on remission for good behaviour and clemency is at executive discretion. However, O’Donnell points out that Cunningham was distinguished almost immediately in People (DPP) v Duffy and O’Toole [2003] 2 IR 192. There, the Court of Criminal Appeal reduced the appellants’ sentences where a third defendant had received a lesser sentence for the same offence by a differently constituted Special Criminal Court. And, in that case, there was no error in principle by the sentencing judges.

O’Donnell adopted the more flexible approach from the minority judgment by Denham J in Cunningham, which considered s 3 of the Courts (Establishment and Constitution) Act 1961 and s 34 of the Courts of Justice Act 1924, which states:

The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.

ODonnell stated that the general rule that an appellate court will not interfere with a sentence unless the trial judge committed an error in principle must be qualified. An appellate court must allow an exception “where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial”. He concurred with Charleton and OMalley’s judgment and orders.

Charleton and O’Malley held that “to attempt give rigid answers to the questions posed by the Court of Criminal Appeal would unnecessarily trammel sentencing discretion” [17]. Dealing with the case before them, they held that, as the trial judge passed sentence on Colbert with the view that, at the time, he had a prior conviction, the sentence must be reviewed. But, as Colbert had not argued that the sentence was wrong in principle or excessive, the Court did not reduce the term. As Colbert had served three years and was entitled to 25% remission, the Court ordered his release.

New Appeal: Supreme Court approves a second appeal relating to the CoA’s application of Hay v O’Grady

Here (Donegal Investment Group v Danbywiske & Ors), the Supreme Court granted Danbywiske leave to appeal a Court the Appeal (Finlay Geoghegan J, Hogan J & Cregan J) decision to overturn the High Court (McGovern J) finding of fact as to the value of company shares. The Court approved three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

In determining that Danbywiske satisfied the constitutional test for an appeal to the Supreme Court, the Court stated that it is “of the opinion that an issue of general public importance has arisen from the Court of Appeal judgment in relation to expert evidence and the role of such testimony in enabling a trial judge to make a choice as to the varying opinions and as to the proper approach to determining issues of fact in context”.

This is the second appeal that the Supreme Court has granted this year concerning the Court of Appeal’s application of the rule from Hay v O’Grady. In February, the Court granted leave in Leopardstown Club v Templeville Developments. The CoA judgments (2) in that case were written by Finlay Geoghegan J and Hogan J. See post here.

Redmond v Ireland: Special Criminal Court cannot convict solely on opinion of Chief Superintendent

Prisoner+in+jail+cell+prison1Here, the Court held “that a constitutional construction of s 3(2) of the Act of 1972 [Offences Against the State (Amendment) Act] requires that the belief evidence of a Chief Superintendent be supported by some other evidence that implicates the accused in the offence charged, is seen by the trial court as credible in itself, and is independent of the witness who gives the belief evidence”.

Background

In April 2002, three judges sitting in the Special Criminal Court found that Redmond was guilty of membership of an illegal organisation (the IRA) and sentenced him to four years imprisonment. It issued a written judgment outlining the reasons for its decision: the opinion evidence of a Garda Chief Superintendent and supporting physical evidence connecting him to items uncovered in an arms dump. In 2004, the Court of Criminal Appeal affirmed that decision and refused to certify a further appeal to the Supreme Court (Irish Times report, here).

In 2006, Redmond brought High Court proceedings seeking a declaration of unconstitutionality against s 3(2) of the Offences Against the State (Amendment) Act 1972, which states:

(2) Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

In 2009, McMahon J (here) refused to grant an order that s 3(2) of the 1972 Act is unconstitutional. Redmond appealed that decision to the Supreme Court.

Supreme Court

Hardiman J reviewed the caselaw on s 3(2) of the 1972 Act and noted that although it was the practice of the Speial Criminal Court not to convict a defendant of membership of an illegal organisation solely on the opinion of a Chief Superintendent, the law as it was up to now interpreted allowed for that possibility. However, he stated that:

24. I do not consider that s.3(2) would be consistent with the Constitution if it permitted the conviction of a person solely on the basis of the opinion evidence. This is even more obviously the case if privilege is successfully asserted over the material which led to the formation of the opinion. This is because these matters in combination tend to exclude any “examinable reality” from the case and thereby undermine any potential avenue to effectively challenge the opinion evidence. The effect of this is wholly to subvert the prospects of useful cross-examination and to exclude even the theoretical possibility of undermining the opinion by cross-examination. This creates scope for the possibility of a conviction on opinion evidence only, which evidence is effectively unchallengeable.

That did not decide the case, though. Citing Walsh J in East Donegal Co-operative Limited v. Attorney General [1970] I.R. 317, that:

An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution: and it is not only a question of preferring a constitutional construction to one which would be unconstitutional, where they both may appear to be open, but it also means that in interpretation favouring the validity of an Act should be given in cases of doubt.

Hardiman J held that s 3(2) does not offend the Constitution as it is applied in current practice.  Therefore he held that:

32. I believe that a constitutional construction of s 3(2) of the Act of 1972 requires that the belief evidence of a Chief Superintendent be supported by some other evidence that implicates the accused in the offence charged, is seen by the trial court as credible in itself, and is independent of the witness who gives the belief evidence.

Denham CJ, McKechnie J and MacMenamin J concurred. Charleton J dissented in part (here).

 

New Judgment: Reynolds v Blanchfield, High Court shouldn’t have made award not sought in pleadings

Here, the Supreme Court allowed Blanchfield’s appeal, as:

28. The approach adopted in the High Court of awarding the sum of €75,000 to the Respondent against the Appellant for services rendered on a quantum meruit basis was incorrect in that:

(a) neither a claim for such relief nor the matters which would have established an entitlement to it had been pleaded; and

(b) there was insufficient evidence before the High Court to arrive at a proper valuation of the quantum meruit, even assuming entitlement to payment on a quantum meruit basis could be established.

Background

The parties were to be partners in a joint venture property development in France, in which Reynolds was to invest €750,000 (2006). That partnership did not proceed. Reynolds claimed that, subsequently, Blanchfield agreed to pay him €200,000 for services to ensure the successful outcome of the development. That involved, among other things, attending site meetings and meetings with the local mayor, prospective investors and prospective sales agents. Blanchfield denied that he had an agreement with Reynolds for the provision of those services, that he had agreed to pay any sum to Reynolds or that he owed any sum to Reynolds.

In October 2008, Reynolds issued High Court proceedings by summary summons seeking judgment against Blanchfield for €200,000 for alleged breach of contract. In January 2010, the Master of the High Court granted judgment for that sum, including interest from November 2008, plus costs. In February 2010, the High Court (McKechnie J) vacated that order and ordered that the case proceed to full hearing. The trial took place in April 2011.

High Court

During evidence, the trial judge (Kearns P) stated that the crucial issue to be resolved was whether there had been an express agreement between the parties on payment for Reynolds’ services. He asked the parties whether, if he was unsatisfied as the terms of any agreement between them, he should decide what sum might be owed on a quantum meruit basis. Blanchfield objected on grounds Reynolds had not sought that in his pleadings. The trial judge said he would therefore resolve the case on an all or nothing basis.

In an ex tempora judgment, the trial judge said that he was satisfied that Blanchfield had agreed that he must pay Reynolds for his services; and that a sum of €200,000 was mentioned. But on the balance of probabilities, he was not satisfied that Blanchfield had agreed to pay that sum. Despite Blanchfield’s objections though, the trial judge was satisfied that he had enough information to make a fair assessment on a quantum meruit basis of the value of the services provided and made an award on €75,000 in favour of Reynolds. Blanchfield appealed that decision to the Supreme Sourt.

Supreme Court

Blanchfield argued that Reynolds made no claim in his pleadings for an award based on quantum meruit; that Reynolds provided no witness evidence of the value of the services provided, that could be challenged in cross examination; and that the issue of resolving the case on a quantum meruit basis was raised by the trial judge–neither party invited him to do so.

Laffoy J cited from Delany and McGrath on Civil Procedure in the Superior Courts and from settled case law that neither party to proceedings will be allowed to make a case that is materially different to that asserted in their pleadings; to allow that would put the other party in the unfair disadvantage of not knowing in advance the case they have to answer. Reynolds, in his pleadings, sought a specific sum of €200,000 which he claimed was contractually owed. The trial judge found that, on the balance of probabilities, that was not the case.

Laffoy J allowed Blanchfield’s appeal and overturned the High Court order.

Ulster Bank v O’Brien:“Is ionann toil ‘s éisteacht”, silence can be, not must be, acquiescence in a statement

batman-hearsay

In this case, the Court made a statement on when failure to deny an allegation, which might otherwise be excluded under the rule against hearsay evidence, can be treated as evidence that the allegation is true:

 

 

21. Thus, analysing whether a failure to respond in the face of an accusation can amount to a declaration against interest must depend upon a myriad of factors. What follows cannot be definitive but merely indicative: an analysis of the nature of the relationship between the parties is essential; the circumstances under which an allegation is made must be taken into account, what is solemn, being different from what is social and from what is jocular or mischievous; the nature of what is claimed may amount, on the one hand, to a bare allegation or, on the other, to an apparently definitive statement backed-up by documentary proof; but finally, the test must be that a failure to respond, in circumstances when a denial would clearly be required, would amount in terms of the conduct of reasonable people to an admission.

Background 

Ulster Bank issued a letter of demand to O’Brien (and his co-defendants) seeking repayment of €900,000 provided under two loan facilities. O’Brien did not respond to the letter or repay the debt. The Bank issued proceedings seeking summary judgment, displaying the letter of demand. O’Brien submitted a defence that the Bank’s affidavit was grounded on evidence that was inadmissible under the rule against hearsay evidence. The Master of the High Court accepted that argument and dismissed the proceedings. The Bank appealed that decision.

High Court

As the averments in the Bank’s affidavit were similar in form and content to affidavits which frequently provided the courts with sufficient evidence to grant summary judgment, and as O’Brien had not denied that the debt was owed, Hedigan J overturned the Master’s order and granted the Bank summary judgment plus costs. O’Brien appealed that decision to the Supreme Court.

Supreme Court

Charleton J (here) held, firstly, although similar evidence was admitted in thousands of other cases  that does not make it admissible: if it offends against the hearsay rule it must be excluded. However there is an exception to that rule provided for in the Bankers’ Books Evidence Act 1879. But banks are not the only entities that provide credit. Trust that money lent and goods delivered will be honoured by payment is necessary for industry to flourish; and it would be extremely odd if banks could admit details of their business records into evidence and other commercial entities could not also do so.

Secondly therefore, Charleton J conducted a review of the case law on the hearsay rule and concerning where failure to refute an accusation can be determined to be an admission of its truth. He determined that it is not a case that failure to deny an accusation amounts to an admission, but the “ancestral adage” “Is ionall toil’s éisteach” (silence can be, not must be acquiesence) comes closer, and he outlined some of the factors that a court must consider, [21] as quoted above.

In relation to this case, “the swearing of an affidavit and its service in court proceedings which make allegations that a sum is due, can be accepted in the absence of denial, where the form and the content of what is deposed to and the exhibits supporting it carry sufficient indications of reliability”. He therefore dismissed the appeal stating that the judgment by Hedigan J in the High Court cannot be said to be in any way at fault. MacMenamin J issued a concurring opinion (here), as did Laffoy J (here).

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