Judgment Title: D.P.P.-v- Nora Wall
Composition of Court: Kearns J., Herbert J., Butler J.
Judgment by: Kearns J.
Status of Judgment: Approved
Grant application for miscarriage of justice
On 10 June, 1999, the applicant was convicted by the Central Criminal Court of rape contrary to common law and of indecent assault contrary to common law as punishable by s.10 of the Criminal Law (Rape) Act, 1981. On 23 July, 1999, the applicant was sentenced by the Central Criminal Court to imprisonment for life for the offence of rape and to 5 years imprisonment for indecent assault.
On 27 July, 1999, the applicant brought a bail application before the Court of Criminal Appeal, at which point senior counsel on behalf of the respondent conveyed to that court the respondent’s consent to the granting of leave to appeal, and further consented that the appeal be allowed and that a retrial be directed. This startling turn of events was referable to (a) the inadvertent calling as a witness on behalf of the prosecution, Patricia Phelan, a person whom the respondent had specifically directed should not be so called at the trial and (b) matters regarding the complainant, Regina Walsh, which had not been disclosed to the lawyers representing the applicant prior to trial.
On 22 November, 1999, counsel for the respondent indicated to the court of criminal appeal that the respondent was not proceeding with an application for a retrial. Counsel for the respondent further indicated that the respondent “fully and ungrudgingly” accepted that the applicant was entitled to be presumed innocent of all charges preferred against her. The court accordingly quashed the conviction of the applicant and the sentences imposed in respect thereof.
The Application before the Court
Section 9 of the Criminal Procedure Act, 1993, (“The Act”) provides as follows:-
“9. —(1) Where a person has been convicted of an offence and either—
The Applicable Legal Principles
From an examination of the existing jurisprudence, the applicable legal principles appear to be as follows:-
(1) An application pursuant to s.9 of the Act is a civil claim in which the onus of proving that a newly discovered fact shows there has been a miscarriage of justice rests on the applicant (The People (DPP) v Pringle (No.2) 2 IR 225; The People (DPP) v Meleady & Grogan (No.3) 4 IR 16).
(2) The standard of proof is the same standard as in any civil claim, namely the balance of probabilities.
(3) An exhaustive definition of the term “miscarriage of justice” has not been attempted by the Court of Criminal Appeal or by the Supreme Court which has indicated that courts should not attempt such a definition (The People (DPP) v Pringle (No.2)  2 IR 225).
(4) Examples of circumstances which may constitute a miscarriage of justice include, but are not limited to the following:-
(a) Where it is established that the applicant was innocent of the crime alleged.
(b) Where a prosecution should never have been brought in the sense that there was never any credible evidence implicating the applicant.
(c) Where there has been such a departure from the rules which permeate all judicial procedures as to make that which happened altogether irreconcilable with judicial or constitutional procedure.
(d) Where there has been a grave defect in the administration of justice, brought about by agents of the State (The People (DPP) v Shortt (No.2)  2 IR 696).
(5) The exercise in which the court is engaged under the Act of 1993 is to determine whether the newly discovered facts show that a miscarriage of justice occurred and this is not confined to the question of actual innocence but extends to the administration in a given case of the justice system itself (The People (DPP) v Meleady & Grogan (No.3)  4 IR 16.
The Newly-Discovered Facts
“In subsection (1) "newly-discovered fact" means—
( b ) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial.”
Form of the Hearing
Having regard to the agreement expressed on behalf of the respondent that this was an appropriate case in which the court should issue a certificate under the Act, the court decided in the first instance to proceed by means of an outline of the facts to be presented by counsel for the applicant in the presence of Patricia Phelan. That outline having been completed, the court then invited Mr. Comyn to consult with Patricia Phelan, who was identified to the court and who remained present in court throughout the recitation of the facts, to enquire if she wished to give evidence in contradiction of anything stated by counsel. Mr. Rogers having completed his outline of the facts, the court then rose to enable this consultation to take place, following which Mr. Comyn advised the court that Patricia Phelan wished only to confirm that the outline of facts was accurate and to further confirm her statement made to the gardaí on 2 April 2001. In the course of that statement, Patricia Phelan had stated :-
“Evidence of Patricia Phelan
In the course of his outline of the facts to this court, Mr. Rogers also drew the court’s attention to similarities in detail which emerged in the statements furnished by the complainant and Patricia Phelan, suggesting connivance to a significant degree between the two girls. He further adverted to the fact that Garda Sinead Connolly was a garda officer common to both this particular prosecution, and the prosecution of Michael Fitzpatrick, wherein McCracken J. had expressed doubts of his own about the credibility of Patricia Phelan as a witness.
Conclusion of This Court
In acceding to the application of the applicant herein, the court does not find it necessary to distinguish in terms of gravity between the various newly-discovered facts which the court is satisfied show that there has been a miscarriage of justice in this case. The prosecution which did take place inasmuch as it involved the tendering of corroborative evidence by a witness known to be unreliable was thus, in that format, a prosecution that should not have been brought. There was further a most unfortunate breakdown in communications or systems failure between the respondent’s office, that of the Chief State Solicitor, the Garda Siochana and prosecuting counsel which the court is satisfied constituted a serious defect in the administration of justice brought about however unintentionally in this instance by agents of the State. It is now also accepted by the respondent that there had been significant non-disclosure in this case, including (a) the information that Regina Walsh had made, but not pursued, an allegation of being raped in England and (b) the non-disclosure of Regina Walsh’s very proximate and material psychiatric history. It seems to this court that the applicant was further prejudiced during the course of her trial by evidence of which the defence had no prior notification, namely, that Regina Walsh recalled the alleged episodes of rape by reference to ‘flashbacks and/or retrieved memory’. There was no scientific evidence of any sort adduced to explain the phenomenon of ‘flashbacks’ and/or ‘retrieved memory’, nor was the applicant in any position to meet such a case in the absence of prior notification thereof.
As previously indicated, this court does not find it necessary on the agreed facts of this case to elaborate a hierarchy of the newly-discovered facts which either singly or cumulatively amount to a miscarriage of justice. Virtually all of the newly-discovered facts are facts of significance which confirm the court in its view that there has been a miscarriage of justice in this instance.
The court will therefore grant the certificate sought in this case.