Judgment Title: Lynch -v- His Honour Judge Moran
Composition of Court: Denham J., Geoghegan J., Fennelly J., McCracken J., Kearns J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Allow And Set Aside
THE SUPREME COURT
[S.C. No. 417 of 2005]BETWEEN
HIS HONOUR JUDGE CARROLL MORAN
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTSJUDGMENT of Mr. Justice Kearns delivered the 23rd day of May, 2006
This case concerns the role, if any, of issue estoppel in criminal proceedings in this jurisdiction. It comes before this Court in judicial review proceedings by way of an appeal from an order of the High Court (Murphy J.) dated the 7th July, 2005. By that order the applicant was refused an order of certiorari to quash a ruling made by the first named respondent on the 14th December, 2004, when he held that certain issues in a forthcoming retrial had already been decided by him in a prior trial of the same accused with regard to the same offence and would not require to be relitigated by reason of issue estoppel.
The issue arose in the following circumstances. In or about the month of February, 2004, the applicant was tried for manslaughter before the Circuit Criminal Court sitting in Limerick. During the course of the trial, the defence sought rulings in voir dire hearings in respect of the admissibility of evidence of an identification parade and in respect of identification evidence to be given by a particular witness. The learned trial judge, the first named respondent, ruled against the applicant on these issues and held that the evidence was admissible. After several days of trial, however, the jury failed to reach a verdict and was discharged.
The case was listed for re-hearing in December, 2004. Prior thereto, at a call-over hearing which was held to schedule criminal trials before the particular judge, counsel on behalf of the second named respondent informed the Court that the retrial would be shorter because certain issues had already been determined and were now res judicata against the applicant. Counsel on behalf of the applicant vigorously contested this proposition. The first named respondent heard lengthy submissions from both sides in regard to the issue on the 14th December, 2004. The first named respondent then ruled in favour of the contentions advanced on behalf of the second named respondent and held that issue estoppel in favour of the prosecution should apply. In the aftermath of that ruling an application seeking leave to apply for relief by way of an application for judicial review was brought before the High Court (Macken J.) on the 24th January, 2005. The reliefs sought included an order of certiorari quashing the ruling made by the first named respondent on the 14th December, 2004, an order of mandamus directing the first named respondent to state a case to the Supreme Court to answer the question whether issue estoppel exists in criminal law in this jurisdiction, a stay of the prosecution under Order 84, rule 20(7) of Rules of the Superior Courts, 1986, and an order directing that any retrial be heard before a judge other than the first named respondent.
The grounds upon which leave was granted to bring judicial review proceedings on the 24th January, 2005, were as follows:-
2. That the said ruling was not made in accordance with law nor is it one known to the law.
3. That the said ruling was made ultra vires the powers of the first named respondent and was in breach of the applicant’s rights pursuant to Articles 34.1, 38.1, 40.3, 1 and 2 of Bunreacht na hÉireann and of Article 6(1) and (2) and 6(3)(d) and Article13 of the European Convention For The Protection of Human Rights, 1950.
4. Further in directing that the applicant was to proceed with the trial and in the event of a conviction to pursue an appeal deprives the applicant of an effective remedy contrary to Article 13 of the European Convention For The Protection of Human Rights, 1950.
5. That a retrial in which the applicant is prevented from raising all defences (and challenges) open to him constitutes a trial in which the parties are not met on the basis of “equality of arms” contrary to Article 6(1) and (2) and (3)(d) of the European Convention For The Protection of Human Rights, 1950.
6. That to subject the applicant to a retrial in such circumstances would be oppressive, unjust, an abuse of process, and place the applicant in a position of great prejudice and would deprive him of his right to defend himself fully and properly in accordance with Bunreacht na hÉireann and the European Convention For The Protection of Human Rights, 1950.”
Following the granting of leave, the trial of the applicant, which was listed for hearing on the 26th January, 2005, was stayed.
The full hearing of the judicial review proceedings concluded on the 7th July, 2005, when Murphy J. delivered judgment. I do not propose to quote from this judgment, which was delivered in ex tempore form, beyond noting that Murphy J. held that the first named respondent had acted ‘within jurisdiction’ in making the ruling which he did on the 14th December, 2004, and that both the first named respondent and the High Court thereafter were bound to apply the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Keith O’Callaghan  1 I.R. 584 which held that issue estoppel as between one criminal trial and another should be regarded as available in Ireland so that an individual, discrete, issue might be regarded as finally and validly determined by a court, even though the court’s verdict on the general issue might be set aside on appeal.
In the course of the hearing before this Court, Mr. David Goldberg, S.C., counsel for the applicant, submitted that res judicata cannot apply against an accused where there is a mistrial. He submitted that the notion of res judicata only arises where there is a final judgment. He further submitted that when a mistrial occurs, the case has collapsed and all of the matters in issue are to be retried in a de novo hearing. This view, he submitted, was strengthened by the existence of section 4C of the Criminal Procedure Act, 1967, which permits the Director to serve additional evidence on an accused at any time during a rehearing. He further argued that the decision in The People (DPP) v. O’Callaghan,  1 I.R. 584, if correct, only operates for the benefit of an accused and not in favour of the prosecution.
On behalf of the respondents, Mr. Feichin McDonagh, S.C., argued that The People (DPP) v. O’Callaghan  1 I.R. 584 correctly represented the law in this jurisdiction so that if issue estoppel was available to the defence in criminal proceedings it followed that it must also be available to the prosecution, given that mutuality is an essential characteristic of the doctrine of estoppel. Counsel for the respondent further submitted by way of alternative that if The People (DPP) v. O’Callaghan  1 I.R. 584 was incorrectly decided, then issue estoppel should not be available to either party and there should be no unreciprocated advantage to an accused person arising from rulings made in a first trial if issue estoppel did not also inure for the benefit of the prosecution.
Before proceeding further, it is important to delineate the parameters of this appeal. Firstly, the appeal is not concerned with whether issue estoppel arising in the context of a criminal trial should operate in any subsequent civil proceedings. Secondly, the appeal is not concerned with issues of verdict estoppel, be it autrefois convict or autrefois acquit. Rather it concerns the survivability of rulings made during a trial where the outcome is either a conviction which is quashed on appeal and followed by a retrial, or an aborted trial or one in which the jury fails to agree. As Irish law presently stands, rulings made in the course of a trial which results in an acquittal do not give rise to a right of appeal on behalf of the prosecution as occurs in certain other jurisdictions.
Before considering relevant case law in this and other jurisdictions, it is perhaps useful to focus briefly on the purpose and value of issue estoppel as a concept in legal proceedings, be they civil or criminal. The principle “interest rei publicae ut sit finis litium” – that is, that it is in the public interest that there be an end, or some end, to litigation – must be seen as one of great importance. Closely allied to that principle is that covered by the maxim “res judicata pro veritate accipitur” – that the correctness of a verdict must be accepted. Repeated litigation on the same subject matter does nothing to enhance the reputation of the judicial system or to improve its efficiency. In the criminal context there is a further relevant principle of great importance, namely, that an accused person not be placed in double jeopardy in respect of the same offence (“nemo debet bis vexari pro una et eadem causa”). The doctrine of issue estoppel derives from these principles and, conceptually at least, if applied in the context of criminal proceedings, might operate to reduce or eliminate the mischief of conflicting decisions in different trials on the same issue. Furthermore, the relitigation of an issue or issues already decided is both costly and time consuming and has the effect of delaying other criminal cases seeking to get on. These concepts were well explained in the judgment of the Court of Criminal Appeal in The People (DPP) v. O’Callaghan  1 I.R. 584, when Hardiman J. accepted that there were various bases in principle to ground the doctrine of issue estoppel in criminal cases. At p.595 he stated:-
O’Callaghan: The Position In Ireland
The Court of Criminal Appeal reviewed a number of Irish authorities on the question of issue estoppel in O’Callaghan before summarising the legal position in Ireland up to that point in the following manner (at p 592):-
In O’Callaghan, the accused was charged that he caused damage by fire to a dwelling house contrary to the Criminal Damage Act, 1991. His trial at Waterford Circuit Court in November, 1998, resulted in a disagreement. A case came on for trial on a second occasion in February, 1999, before a different judge and on this latter date the applicant was convicted. In the first trial, however, an issue was raised by the defence in relation to the proposed evidence of a particular witness. The trial judge ruled that the proposed evidence was inadmissible, and when the matter came on for hearing at the second trial, the same evidence was again objected to. Accordingly, when, following conviction, the matter came before the Court of Criminal Appeal, the central issue was whether the finding of the trial judge on the first trial that the evidence was inadmissible precluded its admission at the second trial.
It is important to underline at the outset what O’Callaghan does not purport to deal with. The judgment delivered by Hardiman J., having noted that it would be a “rare” criminal case where a clearly identifiable issue had been raised in the course of criminal proceedings, states as follows (at p.596):-
Of course each of these cases were civil proceedings which did not address the question as to whether issue estoppel could arise in further criminal proceedings.
However, previous decisions of this Court lean against the idea of issue estoppel in criminal proceedings. In The People (Director of Public Prosecutions) v. Quilligan (No. 3)  2 I.R. 305, Finlay C.J. stated (at p.328):-
However, issue estoppel was fully considered by this Court in Corporation of Dublin v. Flynn  I.R. 357. In that case an individual was prosecuted for a continuing offence of failing to comply with a planning enforcement notice. The making of the enforcement notice was not proved in the District Court, nor was its service on the defendant. In the course of the proceedings, the plaintiff relied on a recital in an earlier conviction stating that the enforcement notice had been served on the defendant on a particular date.
In holding there could be no issue estoppel, Henchy J. in the course of his judgment stated as follows (at p.363 – 365):-
It is not necessary in this case to make a ruling as to whether the total rejection of issue estoppel made in the Humphrys Case should be followed in this State, for in that case and in the others there mentioned (with the exception of R. v. Hogan) the question of issue estoppel arose only at the invocation of the defence in respect of issues decided in a previous prosecution in favour of the accused. Here it is being raised against the accused.
Under the rubric “May issue estoppel be used against the accused?” Spencer Bower and Turner on The Doctrine of Res Judicata (2nd ed., at pp.287-8) give this reply:-
It would be contrary to the fundamentals of criminal justice if an accused, because of an estoppel of the kind suggested, were to be debarred from showing in a later trial that the earlier determination of a particular issue was wrong. For one reason or another he may have been prepared to allow the earlier determination to go against him, but there are no reasons of justice why he should be bound to accept that determination for the purposes of a later trial. For example, to avoid undue publicity or to get the matter disposed of quickly, or for some other reason, the accused may have been prepared to accept a wrong decision in an earlier prosecution to the effect that he had committed an act of assault or had driven a motor car dangerously; but, if a death ensues from the event in question and he is later charged with murder or with the statutory offence of dangerous driving causing death, there is no reason why the earlier determination as to assault or driving should not only relieve the prosecution of proof in that respect but also make it incompetent for the accused to attempt to disprove the correctness of the earlier determination. In such circumstances, estoppel would be repugnant to the fair administration of justice because it would deprive the accused of the opportunity of making what might be a good defence. A decision to this effect was given by Mr. Justice Gannon in The State (Brady) v. McGrath on the 25th May, 1979.
In my judgment the prosecution, in this or in any other criminal charge, is not relieved of the onus of proof in regard to necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier proceedings. It is of the essence of a criminal trial that it be unitary and self-contained, to the extent that proof of the ingredients of the offence may not be established as a result of a dispersal of the issues between the court of trial and another tribunal.”
The judgment in The People (DPP) v. O’Callaghan not only departs from but appears to treat the decision of the House of Lords in R.v. Humphrys  A.C. 1 as “drastically” altering the law of England in relation to issue estoppel which, it is suggested, provided that issue estoppel in criminal cases was historically available under certain conditions in English common law. It is obviously therefore a decision of some considerable importance and will now be considered.
R. v. Humphrys:
Tracing the history of issue estoppel in criminal law in the United Kingdom, Viscount Dilhorne in the course of his judgment in R. v. Humphrys  A.C. 1 was quite explicit in stating that prior to 1964 there was no English decision which gave support to the view that issue estoppel operated in criminal proceedings in that jurisdiction (at p.18).
In Connelly v. Director of Public Prosecutions  A.C. 1254 decided in that year, the Court of Appeal indicated its view that issue estoppel might apply in criminal cases, but held it did not apply in the particular case as it was not possible to identify from the jury’s verdict of guilty of murder, which was quashed on appeal, any finding on the issue of robbery with which Connelly was charged after his conviction for murder had been quashed. Subsequently, in R. v. Maskell  54 Cr. App. R. 429, Eveleigh J. stated that he did not regard Connelly v. Director of Public Prosecutions as deciding that issue estoppel was part of the criminal law. Issue estoppel had also been considered in Mills v. Cooper  2 Q.B. 459 where Lord Parker C.J. stated, at p.466:-
Commenting on this situation in R. v. Humphrys, Viscount Dilhorne stated (at pp.20 - 21):-
Even in the rare cases in which the difficulty to which I have alluded could be overcome, issue estoppel would often be artificial and unfair. Take the not infrequent case in which the jury decides an issue in the defendant’s favour not because they are satisfied that their solution is correct but because they are left in doubt as to whether the contrary had been proved. In such a case, surely it would be artificial and unjust if the defendant who, quite rightly in my view, enjoys many advantages, should be given the added bonus that that issue should thereafter be presumed forever to have been irrevocably decided in his favour as between himself and the Crown. This might mean that upon a totally different charge against the same defendant, supported by overwhelming evidence against him, he might quite unjustly escape conviction because of the issue estoppel. Moreover, I think that it is wholly unnecessary to introduce issue estoppel into the criminal field. The doctrine of autrefois acquit and convict amply protects the accused from being brought into double jeopardy.”
This far from exhaustive recapitulation of certain passages from R. v. Humphrys suggests that, far from there being a long history of issue estoppel in criminal law in the United Kingdom, the “doctrine” was only specifically applied in criminal proceedings in R. v. Hogan  Q.B. 398. This decision was one which the House of Lords was told in the course of the appeal in Humphrys had caused “consternation” at the Bar in England, resulting in the adjournment of at least one trial until the views of the House on the issue were made clear. It seems to me therefore that the decision in R. v. Humphrys did not “drastically” alter the law in England, but rather restored the position that issue estoppel had no place in the British criminal law system.
Australia and Canada
A similar position has been arrived at in Australia following decisions in R. v. Blair  1 N.S.W.L.R. 584 and Rogers v. The Queen  181 C.L.R. 251.
In the first of those cases, the Supreme Court of New South Wales held that where a trial is aborted no question of issue estoppel can arise in relation to any of the rulings that may have been given by the trial judge in that aborted trial. In the course of his judgment Street C.J. stated (at p.587):-
Clearly there does not exist in Ireland any system for autonomous appeals in respect of findings or rulings made during the course of criminal trials. The Court of Criminal Appeal is not a court established by the Constitution but by statute, namely the Courts (Supplemental Provisions) Act, 1961 which provides at section 12 :-
(b) quash the conviction and make no further order, or
(c) quash the conviction and order the Applicant to be retried for the offence, or
(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty of the other offence –
(i) substitute for the verdict a verdict of guilty of the other offence,
(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity”
Quite apart from these reasons, I am also of the view that there are practical difficulties arising on the application of issue estoppel which lead to the same conclusion. One of the arguments in favour of issue estoppel is that it avoids the relitigation of issues which may have taken a considerable length of time to litigate at a first trial. The admissibility of an accused’s statement would be a prime example. However, considerations of the time taken to resolve issues can not ultimately be any sort of guiding test or principle because it may obviously be possible to rule very quickly in some instances upon a matter of great importance to the outcome of a case. But whether the issue takes weeks or minutes to decide, the principle remains the same and it is this: that if issue estoppel is to be applied, it must apply to all rulings, however arrived at, be they important or unimportant, made in favour of an accused where the same issue arises in a subsequent trial and where an accused invokes the estoppel. In most cases the rulings in the first trial will have been made in ex tempore fashion by the trial judge with little in the way of detailed reasons being given at the time of the ruling because of the exigencies of pressing on with the trial. One can readily imagine how lengthy disputation might take place in subsequent trials as to whether certain issues are identical or not. In some instances it might only be possible to overcome such difficulties by comparing proposed evidence in one case with evidence previously given in another. Prolonged and tortuous analysis of issues ruled upon in one or more previous trials would be almost inevitable. Such a fragmented approach to trial work seems to me highly undesirable and indeed it would be an ironic twist if the application of issue estoppel resulted in only greater confusion and conflict than that which it was supposed to remove.
Given that mutuality is at the heart of issue estoppel, and having regard further to the concept of ‘equality of arms’ fostered by the Convention and reflected in decisions of the European Court of Human Rights, it seems only logical and reasonable to hold in addition that, if issue estoppel can not operate in favour of the prosecution, it should not operate in favour of the defence by way of unreciprocated advantage either. I would agree with the views expressed by Street CJ. in R v. Blair (1985) 1 N.S.W.R. 584 that in any later criminal trial no question of issue estoppel can arise in relation to any of the rulings that may have been given by the trial judge at the aborted trial. Here I would invoke in support the ‘notional onlooker’ referred to by Hardiman J. in The People (DPP) v. O’Callaghan whose sense of fairness in the operation in the criminal justice system must be kept in mind. A simple example of one-sided issue estoppel may illustrate the point. If, for example, in a first trial for rape, a statement made by an accused is ruled inadmissible, and if in that same trial the judge also rules that the complainant may be cross- examined about her prior sexual history, could the application of issue estoppel in favour of the accused on both matters in a retrial be regarded either favourably or as fair by such a notional onlooker, notably when the complainant on the one hand would thereby be denied the opportunity to challenge the propriety of a critical ruling made against her in the previous trial while the accused in contrast would enjoy the benefit of a possibly incorrect ruling in his favour to exclude a statement in which he may have admitted the offence? I think the answer would have to be in the negative.
I see no reason grounded in public policy for granting an accused an unreciprocated advantage if issue estoppel does not generate mutually. In truth, a disservice is done to the integrity and reputation of the criminal process if the scales of justice may be seen by the notional onlooker or by the public at large as forever tilted in favour of an accused and forever tilted against the State. In my opinion, the extension of a consideration of ‘tenderness’ in this regard to an accused, as so described by Brennan J. in Rogers v The Queen  181 C.L.R. 251, is not warranted having regard to all the other rights he properly enjoys under our criminal justice system.
Having reached the conclusion that issue estoppel has no role in Irish criminal proceedings, either in favour of the prosecution or the defence, it follows that the appeal herein should be allowed and that the order made by the learned Circuit Court judge should be quashed.