Composition of Court: Denham J., Herbert J., Gilligan J.
Judgment by: Denham J.
Status of Judgment: Approved
Quash conviction, no re-trial
Outcome: Quash conviction, no retrial
THE COURT OF CRIMINAL APPEAL
APPEAL NO. 13 /2005
DENHAM J. HERBERT J. GILLIGAN J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered on 12th day of May, 2005 by Denham J.
1. Mark Lacy, the applicant, has brought an application seeking leave to appeal against conviction and sentence. The applicant was convicted on the 28th January, 2005, by the Dublin Circuit (Criminal) Court, and sentenced on 4th February, 2005, to three years imprisonment, with the last twelve months suspended.
2. The applicant was charged with the offence of assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act, 1997. The particulars were that the applicant on the 5th January, 2003, at Maynooth Road, Leixlip, in the County of Kildare, assaulted John Tansey, causing him harm.
3. The applicant filed grounds of appeal as follows:
(a) The learned trial judge erred in law in allowing the prosecution to remove a witness from the book of evidence without either calling or tendering him, thereby forcing that witness to be called as a defence witness.
(b) The learned trial judge erred in law in not withdrawing the case from the jury on the grounds that the prosecution had failed to satisfy the standard of proof.
(c) The verdict of the jury went against the weight of the evidence.
(d) In all the circumstances the conviction is unsafe and unsound.
However, before the court the grounds were confined to a single issue. The applicant submitted that the learned trial judge erred in law in all the circumstances in permitting the prosecution to remove a witness from the book of evidence without either calling or tendering him, thereby forcing the witness to be called as a defence witness, and that as a consequence the conviction was unsafe.
4. The background to this case is that the applicant was originally tried in the Dublin Circuit (Criminal) Court, and the jury was unable to agree. The Director of Public Prosecutions directed that he be retried. New counsel for the Director and new counsel for the applicant were appointed, and the matter came on for trial before a different judge. The applicant was found guilty and was sentenced to a term of imprisonment of three years, with the last 12 months suspended.
5. The trial court refused leave to appeal but legal aid was granted in the event of an appeal.
6. The applicant sought bail from this Court which was refused, but he was given priority in the list. In light of the circumstances this judgment is also being delivered with urgency.
7. The factual background to the case was set out in the submissions for the applicant and I draw on that information. The facts were not in dispute. The case against the applicant was set out in the book of evidence. He was alleged to have assaulted John Tansey on the 5th January, 2003, by giving him a head-butt from which John Tansey received an injury requiring five sutures. The book of evidence contained:
(i) A statement of John Tansey
(ii) Statements from a number of alleged eye witnesses who supported the account of the incident given by the alleged injured party and, who were friends of his.
(iii) Statements of members of an Garda Síochána who investigated but who did not actually witness the assault.
(iv) A statement of Darragh O’Regan which directly contradicted the account offered by the alleged injured party, but which was consistent with the statement of the applicant.
(v) A statement from a doctor setting out details of the medical treatment given to John Tansey.
(vi) A voluntary statement made by the applicant.
8. In the applicant’s statement to the Garda Síochána he admitted being in a fight with John Tansey but he maintained that John Tansy head-butted him and was the aggressor. This version of events was supported by the statement of Darragh O’Regan.
9. In essence this was a prosecution arising out of somewhat confused events. There was an altercation outside a night club in the early hours of the 5th January, 2003. The State alleged in the prosecution that some time after 2.00 a.m. John Tansey left the night club with a number of friends, went out and crossed the road. He later came back with another friend to look for or to wait for more friends. He was approached by a person named Jenny Taaffe and some words were exchanged. At that stage a man approached him and head-butted him for no reason. There was no provocation and there was no threat. He ran away but slipped and fell to the ground. This man continued to attack him on the ground.
The applicant, on the other hand, had a different version of the events. He gave evidence of an altercation outside the night club, “a bit of mouthing back and forward”, between John Tansey and himself, and the two of them going head to head. He said that John Tansey head-butted him.
This event occurred in the early morning, outside a night club, where young people were gathered, after consuming alcohol, and an altercation occurred. This is a difficult type of situation both to investigate and to assess. The evidence presented by the prosecution was in effect that of John Tansey and his friends.
10. The issue on this appeal revolves around the evidence of Darragh O’Regan. At the initial trial the jury were unable to agree. At that trial Darragh O’Regan was called as a prosecution witness.
11. On the retrial the prosecution called witnesses and John Tansey. They told the same story as in their statements. Each maintained that John Tansy had not been the aggressor and those who claimed they saw the incident said that John Tansey had received the head-butt not given it. A medical consultant was called by the State who reviewed the medical notes relating to John Tansey. On cross examination he agreed that the injury could have been caused by someone giving a head-butt as well as someone receiving a head-butt, and that there was no way to tell from the injury how exactly it had been caused.
12. Counsel for the prosecution, in the absence of the jury, asked the learned trial judge to grant him liberty from having to call or tender one of the witnesses in the book of evidence, Darragh O’Regan.
13. Counsel for the Director of Public Prosecution noted that Darragh O’Regan’s statement was “on all fours with the statement of the” applicant. While accepting that it was standard procedure to call all the witnesses in the book of evidence it was maintained that Darragh O’Regan’s evidence was unreliable, as his name had been provided to an Garda Síochána by the applicant as a potential witness. He also claimed that the prosecution would be subject to criticism by calling inconsistent evidence within its own case. This application was opposed by counsel for the applicant.
14. The learned trial judge acceded to the prosecution request that they should not call Darragh O’Regan to give evidence, but that he should be available to the defence as a witness if the defence wished to use him.
15. At the core of the issue is whether the discretion of the Director of Public Prosecutions / counsel for the prosecution is fettered once a statement of a witness appears in a book of evidence. Or, to put it another way, if once a statement of a witness is put in the book of evidence must the Director and the prosecuting counsel call that witness?
16. The Court is satisfied that a discretion whether or not to call a witness does remain after a book of evidence is compiled. Firstly, the Director of Public Prosecutions retains his discretion as to the prosecution of the offence, including the calling of the witnesses. Secondly, prosecuting counsel retain a discretion as to how a prosecution will proceed, including as to the calling of witnesses. This discretion must be exercised fairly and in the interests of justice. These principles have been stated in Joseph Francis Oliva (1965) 49 Crim. App. R. 298 at p. 309 where Parker LCJ stated:
“Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even through the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling the witness.”
The placing of names of the witnesses on the back of an indictment in that jurisdiction is similar to entering the names of witnesses in the book of evidence in this jurisdiction. The Court adopts and applies the principles enunciated by Parker LCJ, with the added consideration of the constitutional concept of due process. At the root of every criminal trial in this jurisdiction is the constitutional guarantee of justice and fair procedures.
The trial judge has a discretion to intervene in the exercise of this discretion by the Director and prosecuting counsel as to the calling of witnesses where the requirements of a fair and just trial require such an intervention. An illustration of an occasion where a court would intervene and refuse to agree to a decision not to call a witness would be where the discretion was being exercised for an “oblique motive” as referred to in Adel Muhammad el Dabbah v. Attorney General for Palestine  2 ALL ER 139 and R. v. Russell Jones  3 ALL ER 239. It is this ground that the applicant has raised for consideration by the court.
This court accepts that there is a general practice that all witnesses in a book of evidence will be called, but that there remains a discretion with the Director of Public Prosecution and prosecuting counsel. This discretion is subject to review by the trial judge.
Mr. Comyn, S.C., counsel for the Director of Public Prosecutions, on the hearing of this application, very fairly outlined to the court that there were two reasons for the application not to call or tender Darragh O’Regan in evidence. These two reasons appear on the transcript and this Court must decide the appeal by reference to the facts on the transcript. The application by counsel for the Director of Public Prosecution was grounded on the basis that the witness Darragh O’Regan was unreliable. This was based on (a) the fact that his name had been provided to the members of the Garda Síochána by the applicant some days after the event, and, (b) that his evidence was different from, and gave an account of the events contrary to, that of the other prosecution witnesses, although it was consistent with that of the applicant. It was submitted that counsel would be subject to criticism for having called inconsistent evidence within its own case.
On the issue of consistency it is important to note that the evidence of Darragh O’Regan in the first trial, and at all times, was consistent with his statement, and indeed that of the applicant. The only inconsistency in the case was between the evidence of John Tansey and other prosecution witnesses and that of the applicant, Darragh O’Regan, and some other witnesses called on behalf of the defence.
This Court would distinguish the instant case from The People (D.P.P.) v Casey and Anor (Unreported C.C.A. 14th day of December, 2004) where the facts were entirely different. In that case there had been extraordinary inconsistency in the statements and actions of a witness. In Casey there were circumstances enabling the exercise of a discretion not to call a witness. In Casey the witness was arrested and questioned and made a number of statements indicating his involvement in the events of the night. He subsequently swore an affidavit exculpating one applicant. Then he made a statement informing the Garda Síochána that he had sworn the affidavit under intimidation. After reviewing the facts the Court held that the witness’s account of the events was self-contradictory. The prosecution stated that they regarded him as wholly unreliable witness. The Court held:
“On the material which is before the Court this is a tenable assessment of the position”.
The position in this case is entirely different. Darragh O’Regan swore a statement. He has not sought to vary or deviate in any way from that statement. He gave evidence in accordance with that statement in the first trial. He has never resiled or attempted to resiled from his statement. There was no reason to believe that he would not give the same evidence at a later trial. Further, he was not a participant in the events in issue. He was a witness, one of many, who claimed to have seen what happened.
The witness’s statement is internally consistent. It is also consistent with the evidence of the applicant. There does not appear to be any manifest fact pointing to its unreliability.
The Court is satisfied that the fact that Darragh O’Regan came to the notice of the investigating Garda Síochána through the applicant is not a valid ground from which to state that he is unreliable as a witness. Neither is the fact, in all the circumstances, that his evidence is inconsistent with that of other State witnesses. Thus the two bases submitted on behalf of the prosecution for stating that the witness was unreliable are not good grounds.
This case must be decided on its own circumstances. The circumstances relate to an offence arising in a situation which raises significant difficulties for members of an Garda Síochána, prosecuting authorities and courts. The circumstances include young people, outside a night club, in the early hours of the morning, when an altercation arises. A different version of the events is given by different groups of friends. That is not to say that anyone is lying or committing perjury, but simply that given the circumstances events may be somewhat blurred.
In such circumstances, in the judgment of this Court, the decision to delist the witness was unfair. While the defence undoubtedly had the opportunity to call the witness, and did infact do so, the proceedings had shifted. The witness was not presented as a prosecution witness, and may have been perceived differently by the jury as a defence witness, particularly when he was subjected to a vigorous cross examination by counsel for the State, whereas in the first trial he had been a prosecution witness and had been cross examined on behalf of the applicant.
The fact that there had been an earlier trial when Darragh O’Regan was called as a prosecution witness is a factor to be considered, as is the fact that the jury in the earlier trial disagreed. A further relevant factor is that the same solicitor acted in the first trial and the second trial for the State. While counsel were different it was the same State solicitor in the case when the witness was delisted and vigorously cross-examined. It is the view of the court that this procedure was unfair to the applicant. Also of relevance is the nature of the offence and the circumstances of the offence. All of these factors are relevant to the exercise of the discretion by the Director of Public Prosecution, prosecuting counsel, and the trial judge.
In this case the witness Darragh O’Regan was listed in the book of evidence. Consequently, in the view of this Court, his position is different to that of a person not so listed and where statements have been furnished to the defence. While all of this information was then available to the defence, by naming him in the book of evidence a situation is created where it is expected that he will to be called by the prosecution. Good reasons may arise in the course of a trial which result in witnesses being tendered rather than called in evidence. However, if a witness included in the book of evidence is not called or tendered then there should be good reasons why such a course is adopted.
It is not necessary to review at length the well established principles governing the position, obligations, and level of discretion afforded to the counsel for the prosecution, referred to by counsel for the Director of Public Prosecutions. Each case falls to be decided on its own facts. This Court is satisfied that the two reasons give to delist the witness Darragh O’Regan are not good reasons to support a just and proper order in the particular circumstances of this case. The learned trial judge therefore erred in law in allowing the prosecution to refrain from calling him or tendering him in evidence.
Consequently the Court will grant the applicant leave to appeal, deem the hearing of the application to be the hearing of the appeal, allow the appeal, and hold that the conviction is unsafe and unsound, and quash the conviction.
The Court has considered the issue of a retrial. In all the circumstances of this case, and having regard in particular to the fact that the applicant has been serving a sentence since 4th February, 2005, and that he was remanded in custody for a week prior to that sentencing date, the Court is not disposed to order a retrial.