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Cite as: [2004] IECCA 43

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Judgment Title: D.P.P.-v-W.G.

Neutral Citation: [2004] IECCA 43

Court of Criminal Appeal Record Number: 128/98

Date of Delivery: 01/11/2004

Court: Court of Criminal Appeal

Composition of Court: McCracken J., Murphy J., Gilligan J.

Judgment by: McCracken J.

Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
McCracken J.	Refuse leave to appeal

Outcome: Refuse leave to appeal

COURT OF CRIMINAL APPEAL

128/98

McCracken J
Murphy J
Gilligan J

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

W.G.

Applicant

Judgment of the Court delivered by McCracken J. on the 1st day of November 2004
___________________________________________________________

On 29th June 1990 the Applicant pleaded guilty before Carney J. to nine separate counts in a lengthy indictment. These separate counts consisted of:-

1 Three counts of rape of LAG.

2 One count of sexual assault on SG.

3 One count of attempted rape of SG.

4 Three counts of rape of FM.

5 One count of buggery of FM.

Sentencing was adjourned and ultimately on 24th July 1998 the Applicant was given a number of concurrent sentences, amounting to twelve years imprisonment.

The Applicant seeks leave to appeal on the grounds that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate, and also that he was not given sufficient time to consider whether to plead guilty. It should be noted that at all times up to the date fixed for his trial the Applicant had maintained to his legal advisors that he was not guilty.

The Court has had the benefit of affidavits sworn by the Applicant, by his solicitor and by Senior and Junior Counsel who represented him on the day of his plea. His solicitor has exhibited a number of fairly detailed attendances, both on the Applicant himself and on his Counsel. The Applicant and his solicitor were also cross-examined on their affidavits. There is little serious disagreement as to the chronology or indeed as to the advices given to the Applicant. The Court is satisfied that it has a clear picture of the sequence of the events.

The Applicant had already consulted his solicitor in relation to matrimonial difficulties when he was charged with these offences. On 19th September 1997 his solicitor represented him at Ennis District Court when the prosecution sought certain amendments to the charge sheet and on 23rd October 1997 the Applicant consulted his solicitor in relation to a possible defence that he was out of the country on the date of certain charges. The first lengthy consultation appears to have taken place on 12th January 1998 when the possibility of the Applicant’s wife orchestrating the allegations against him was discussed.

In March and April 1998 there were a number of meetings between the Applicant and his solicitor, at which the various statements in the Book of Evidence were gone through in detail. At all times the Applicant maintained his innocence.

While there was no meeting during this period between the Applicant and Counsel, the solicitor wrote to Senior Counsel asking him to confirm that he would be available and informing him that the case would commence on 29th June. A few days later a copy of the Book of Evidence was sent to both Senior and Junior Counsel and on 9th June both Counsel were sent the solicitor’s detailed attendances on the Applicant.

Included in the Book of Evidence were reports by Dr Mary Davin-Power on LAG and SG. There was no medical report in relation to FM. These reports are central to the case being made by the Applicant. In relation to LAG the medical conclusion was:-

“One could only conclude from this examination that LA has had intercourse on several occasions in the past. The hymen was fully broken and she was evidently not a virgin. Unfortunately this finding is confused by the fact that she has had sex with her boyfriend apparently only in the last month. I could conclude that she has probably never had anal sex.”

In relation to SG the conclusion was:-

“I would conclude from that medical examination that while she may have been touched or fingered in the genital area it is likely that no full penetration of either vagina or rectum had taken place.”

On 22nd June 1998 a meeting took place between the Applicant, his solicitor and Junior Counsel, and the Court is satisfied that the solicitor’s recollection and attendance notes accurately reflect what took place at that meeting. Junior Counsel told the Applicant that there was a lot of evidence against him including the statements of the three complainants and that the medical reports were consistent with the statements of these complainants. He went on to advise the Applicant that he might face double the sentence if he was found guilty following a trial rather than pleading guilty, but the Court is satisfied that the Applicant was told that his legal advisors would fight the case if those were his instructions. It would appear that at this meeting the Applicant was still placing a lot of emphasis on the attitude and behaviour of his wife. It is relevant that Junior Counsel also told the Applicant that Senior Counsel wished to consult with him and that Senior Counsel’s advices would be important. In the event, no meeting with Senior Counsel was arranged until the morning of the trial which had been fixed for the 29th of June.

On 23rd June some additional evidence was furnished by the prosecution, but it appears to have been of a very formal nature. By letter of 24th June the solicitor sent this additional evidence to both Counsel and confirmed that there will be a meeting with the Applicant and Counsel at 9.30 am on the 29th June, the morning of the trial.

The Applicant’s account of what happened on 29th June is that he met the solicitor at approximately 9.30 am in the Four Courts, but neither Counsel were present. He states that at about 10.30 am he was told that Junior Counsel would not be appearing and 10.45 am Senior Counsel turned up. The solicitor in evidence concedes that it was certainly after 10 am before he met Counsel, and also gave evidence that Senior Counsel informed him that the original Junior Counsel was unable to appear and that he, Senior Counsel, had arranged for another Junior Counsel to appear, who attended the meeting with him. The solicitor appears to have been unaware of the unavailability of Junior Counsel until that moment. The Court will comment on this aspect of the case later in the judgment.

When the meeting ultimately took place, the solicitor says it lasted twenty to thirty minutes and his recollection is that Senior Counsel advised that if the statements in the Book of Evidence were to be given in Court it was likely that this would convince the jury to convict the Applicant. Senior Counsel also advised the Applicant that if he was found guilty following a contested trial he would receive a greatly increased sentence than if he had pleaded guilty without a contested trial. There is some dispute as to whether the Applicant was told that the evidence against him was “overwhelming”, but there is no doubt that it was impressed upon him that the likelihood was that he would be found guilty, and that if he fought the case there would be a greatly increased sentence. It appears that after a short time considering the matter the Applicant indicated that he would plead guilty to sample charges, and the Senior Counsel then met with Counsel for the prosecution and the sample charges were agreed. In due course on that day the Applicant pleaded guilty to these nine sample charges, and was released on bail pending a sentencing hearing which was fixed for 24th July.

The next day the Applicant notified his solicitor that he had misgivings regarding his guilty pleas. In the light of this, the solicitor arranged a consultation with Senior and Junior Counsel for 3rd July. At that meeting the Applicant was told that it was probable that he would be allowed to change his plea to not guilty if he wished to do so, provided the Application was made before sentencing. It is notable that this was a much longer meeting than that which took place on the morning of the trial, but it was made clear to the Applicant that Senior Counsel’s advice had not changed, and that he should maintain the plea of guilty. It is probable that at this meeting he was also told that if he did change his plea he would have to instruct a new legal team. In any event, it appears that on 6th July he did instruct the solicitor that he wished to change his plea to one of not guilty.

At some stage during this period, on a date which is not clear, the Applicant had a meeting with his brother, his brother’s solicitor and a Junior Counsel, unknown to his legal advisors on record. They had been furnished by him with the Book of Evidence, and according to the Applicant, they advised him that the case against him in relation to FM was not strong but nevertheless he should abide by the advice of his experienced Senior Counsel. Whether as a result of this meeting or not, the Applicant again changed his mind and advised his solicitor that he would now be maintaining his plea of guilty. The solicitor took the precaution of having him sign a written acknowledgment to this effect on 13th July and on 24th July 1998 he was sentenced to a total of twelve years imprisonment.

On 9th March 2002 the Applicant’s present solicitors sought the advice of Professor Busuttil, Professor of Forensic Medicine at The University of Edinburgh in relation to Dr Davin-Power’s report on LAG. While he was somewhat critical of the report as being deficient in detail and too concise, he does not greatly differ as to the conclusions. He was, perhaps doubtful about whether anal intercourse had even been a possibility, but in this regard the Court takes into account that none of the sample charges to which the Applicant pleaded guilty involved anal intercourse with LAG.

The Court has dealt in some detail with the facts in relation to the conduct of this case. The applicable law is not really in dispute between the parties, but the difficulty in cases such as this is to apply that law to the particular facts.

In DPP v. Lynch (unreported 27th July 1999) this Court considered the proper approach where an accused wished to change his plea. At page 22 of the judgment delivered by Barron J. it was said:-

“Counsel and solicitor acting for an accused person have an obligation to consider all the relevant aspects of the case and to advise their client in his best interest. Had they failed in their duty in the present case then the Appellant would have been justified in seeking to have his plea vacated and a trial held. However, the Court is satisfied that both counsel and solicitor acted properly and in the interest of their client.

This is not necessarily an end of the matter since ultimately what this Court has to ascertain is whether it is fair to deny the Appellant even at this late stage a trial on the merits.”

In DPP v. McDonagh [2001] 2 IR 411, which was a case dealing with Counsel’s conduct of the trial itself, rather than a guilty plea, Keane C.J. said at page 425:-

“A criminal trial in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in “due course of law”. That would apply as much to the steps taken by the accused’s legal advisors prior to the trial as it would to the conduct at the trial itself.

That is not to say, however, that what might properly be regarded as an error by the accused’s legal advisors is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial. As was pointed out by Rougier J., giving the judgment of the English Court of Appeal in R v. Clinton [1993] 1 WLR 1181 at page 1188:-

“It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and verdict.””

DPP v. B [2002] IR 246 is, as far as this Court is aware, the only occasion on which the Court set aside a plea of guilty made on the advice of Counsel. The facts of that case were very different from the present case, in that the Senior Counsel who advised the plea of guilty had not been furnished with a number of relevant documents by his solicitor, and gave evidence before this Court that, had he seen those documents, he might not have given that advice. In setting aside the plea, the Court of Criminal Appeal commented that “the present case appears to us to be unique”.

It must be emphasised that the decision to plead guilty must be the decision of the accused himself. Counsel can only advise, but cannot direct an accused how to plead. Nevertheless, it is clearly a function and duty of Counsel to point out the weaknesses in an accused’s case, and to advise the accused of the possible consequences of unsuccessfully contesting the case. This is particularly so in cases involving sexual offences.

This Court has had the advantage of reading the Book of Evidence which was considered by Senior Counsel and there is no doubt that the advice tendered by him to the Applicant was sound and sensible advice and was given bona fide. The Court is also satisfied that the Applicant was at all times genuinely assured by his legal advisors that they were prepared to fight his case if he so instructed them. In the present case there is no doubt that the Applicant was well aware that the decision was his, and his alone. He consulted a totally independent solicitor and Counsel who advised him to maintain his plea. The decision initially to change his plea, and then the later decision to maintain it, were decisions of the Applicant and the Applicant alone.

This Court is satisfied that the correct test in cases such as this is that set out in DPP v. Lynch that “ultimately what this court has to ascertain is whether it is fair to deny the appellant even at this late stage a trial on the merits”. This Court is satisfied that, on the basis that the advice given was proper advice and the decision was that of the Applicant alone, the Applicant has not made out any case of unfairness or injustice.

That being said, the Court does feel there are several somewhat worrying aspects of the case upon which it should comment. Firstly, the Applicant argues that he was not advised to get an independent medical report following the disclosure of Dr Davin-Power’s reports. While this is so, the Court is satisfied that any such independent report would not have had any effect on the outcome of the case or indeed on the advice to be given to the Applicant. Dr Davin-Power’s report neither confirmed nor denied the principal charges against the Applicant other than that of buggery of LAG. As he did not plead guilty to that offence, there is no conviction in respect of it and no sentence was imposed in respect of it. In any event the independent report subsequently obtained largely agreed with Dr Davin-Power.

Secondly, it is suggested in the light of the advice which the Applicant obtained from the independent solicitor and Counsel that the case against him in relation to FM was not particularly strong, and that his advisors ought to have considered applying for separate trials in relation to each of the complainants. The Court considers that while a separate trial might have been granted in relation to FM, the advantage of such action would be questionable, and indeed no such course of action was advised by the independent solicitor and Counsel. In any event, this suggestion was not made in the grounding affidavit of the Applicant in this Court, and therefore the legal advisors had no opportunity to answer it. The Court does not know whether in fact consideration was given to this course of action.

Finally, the Court is somewhat disturbed by the lack of consultation prior to the trial and by the very short period in which the Applicant was able to consider his plea. The Court is also concerned by the failure of the original Junior Counsel to attend, apparently without notice to his solicitor, which resulted in the fact that on the morning of the hearing, neither Counsel who were to conduct the defence had ever met the Applicant. It should be said that the Court does not criticise Senior Counsel for having ensured that there was some Junior Counsel present, once he was aware that the original Junior Counsel was not going to attend, but the Court would point out that a somewhat similar situation arose in DPP v. McDonagh, in which Keane CJ pointed out the provisions of the Code of Conduct for the Bar of Ireland to the acceptance of briefs. Fortunately, the Court does not believe that what would appear to be a breach of that code of conduct has affected the outcome of this case.

In the event, the Court refuses leave to appeal.