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Cite as: [2005] IECCA 34

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Judgment Title: D.P.P.-v- Martin Murray

Neutral Citation: [2005] IECCA 34

Court of Criminal Appeal Record Number: 1CPA/02

Date of Delivery: 11/04/2005

Court: Court of Criminal Appeal

Composition of Court: Geoghegan J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result
Geoghegan J.	Adjourn before a full court

Outcome: Adjourn before a full court

- 9 -

THE COURT OF CRIMINAL APPEAL
01CPA/02

IN THE MATTER OF SECTION 2 OF THE
CRIMINAL PROCEDURE ACT, 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR
OF PUBLIC PROSECUTIONS)

v.

MARTIN MURRAY

Applicant

JUDGMENT of Mr. Justice Geoghegan delivered the 11th day of April 2005

This is an application under section 2 of the Criminal Procedure Act, 1993. It is alleged by the Director of Public Prosecutions that the application does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction sought to be quashed. Under section 5 of the 1993 Act, the registrar of the court acting administratively may form a view that an application under section 2 does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction or the sentence as the case may be and he or she may then without calling for the report of the official stenographer refer the application to the court for summary determination. That determination may be exercised by a single judge of the court and an appeal may be made to the court by the convicted person against such summary determination. (See s. 5(2) of the Act).

In practice, it is difficult for the registrar to perform the function envisaged by section 5(1). She did not do so in this case and the application appeared in the ordinary way before the full court presided over by Hardiman J. That court queried whether there was a prima facie case as it was clearly entitled to do. The mere fact that the registrar may not have exercised a right to refer could not possibly remove from the court its own inherent jurisdiction not to entertain unstateable applications. In this instance, the court decided to refer the case to a management list before me sitting alone.

I have decided that I should adopt a procedure which in all the circumstances would be fair to the applicant. What has troubled me is that if the registrar had in fact made a reference, the matter would probably have been dealt with by me as a single judge in the first instance and there would then have been an appeal to the full court. That being so, I do not propose, even if I had the power to do so, to make a final and absolute determination on this application. But I will express my views in this interim judgment and then refer the matter into the list of the full court which can make a final determination. This judgment will, therefore, take the form of a full report on the factual background to the application.

Before dealing with the facts and the grounds of application, I think it useful to quote in full section 2 of the 1993 Act. It reads as follows:

“2. – (1) A person –

(a) who has been convicted of an offence either -

(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under section 13(2)(b) of the Criminal Procedure Act, 1967, and

who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.

(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.

(3) In subsection (1)(b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.

(4) The reference in subsection (1)(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.

(5) Where -

(a) After an application by a convicted person under subsection (1) and any subsequent re-trial the person stands convicted of an offence, and
(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,

he may apply to the court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection.”

The applicant was convicted in a trial by judge and jury at Naas Circuit Court on the 11th February, 1999 of having in his possession and for distribution a large quantity of drugs. He was sentenced to seven years imprisonment which he served, his appeal to the Court of Criminal Appeal having been dismissed in about May of 2001. The applicant’s present counsel and solicitor were not the counsel and solicitor originally engaged for the purposes of his trial. At this point, it is worth while quoting the actual words contained in paragraph 2 of the written submission to this court on the present application on behalf of the applicant because the nub of the case is contained in it. The paragraph reads as follows:

“Present counsel and solicitor were first retained by the appellant in October 2004. It became apparent from studying all the papers collected by the appellant and through his former legal advisers that there was no prospect whatsoever of any credible appeal being mounted on the basis of the conduct of the case in February 1999 by his then leading counsel but that there were disturbing aspects to the preparation of the original trial which had not been previously noticed.”

The alleged “disturbing aspects to the preparation of the original trial” were the following.
1. Counsel who conducted the case had only been briefed late on the evening before the trial.
2. There had been no proper preparation of the case by a formal advice on proofs, an updated witness statement, timely consultations and formal consideration of the appellant’s list of witnesses which might or might not have proved useful.

It is alleged that the applicant had been charged since October 1996 and that his then solicitors had written to a leading counsel in November 1997 requesting advice on proofs and had been promised such advice. The trial was listed in February 1998 and it is alleged that the then solicitors wrote “frantic letters” to various expert witnesses requesting their attendance. The trial was in fact postponed but it is claimed that in the period of February 1998 to 1999 the solicitors did not take any steps “to fill the holes in the case” and on the weekend before the case was coming on for hearing left the appellant without a legal team. It is claimed that these matters can be demonstrated from either the transcript or original files and evidence gathered down the years.
Paragraph 4 of the written submissions then reads as follows:

“The main contention of the present appeal is that the standard of preparation for this serious criminal trial was so inadequate and fell so far short of what was required and coupled with the taking of the brief by a new barrister the night before in such a disorganised state that the possibility of a miscarriage of justice cannot be ruled out. That is to say the court should disregard the energetic presentation of the actual trial by experienced leading counsel and focus on the extent of the handicap that he was carrying and which made an already difficult case impossible to win.”

There is no doubt that as a matter of law and in exceptional circumstances a conviction may be quashed by the Court of Criminal Appeal on the grounds that a miscarriage of justice may have arisen from incompetent handling of the defence at the trial. Cases in support of that proposition have been cited but it is not necessary to review them. It is well known that that is the legal position.

The first point to be noted about this application is that it is not suggested either in the written submissions or in the oral submissions before me that there was any incompetence in the actual conduct of the case by senior counsel on behalf of the applicant. The purpose of all the steps taken by a solicitor for an accused in preparation for a trial are with a view to the case being done competently. There has never been a hard and fast rule as to what the nature of these steps should be. It has never been the law that there has to be written advice on proofs or advice on proofs of any particular detail or particular types of consultations at particular stages. What matters is that the trial is conducted with reasonable care and competence. That itself will involve judgment calls by counsel for the defence which may in many cases not be in accordance with the views of the accused himself.

This application is grounded on an affidavit of the applicant sworn on the 11th November, 2004. Having set out the history of his arrest, trial, conviction and sentencing, he explains that he had appealed against both conviction and the sentence of Judge Groarke but that the appeal was dismissed on the 16th May, 2001. He remained in prison until September 2004 and, as he puts it himself, he held “very strong views” about the manner of his conviction and in prison, he sought to overturn it. He refers to a number of applications which he made to different High Court judges, namely, Butler J., Peart J. and O Caoimh J. but that in each case these were refused. Although he does not say so in the affidavit, I am inferring that these were probably applications for judicial review. He goes on to say that he has had a difficult relationship with the few lawyers who tried to help him because of his insistence on a review of the evidence of the trial that led to his conviction. He then explains that in September 2004, he contacted his present legal advisers and they had sight of all the papers. He was advised by his present counsel, Mr. Desmond Murphy, in a lengthy opinion that there was no possibility of a successful appeal based upon a review of the evidence at the original trial. He then goes on to complain about his previous solicitors, M. Hanahoe & Co. He claims that there was very little contact between the solicitors and himself between charge and trial though he concedes that he had a consultation in their offices in 1997 and that there is a memo of that interview. He claims that he had advised his solicitors that two particular witnesses should be called and that they were not called. I would just pause at this point to emphasize the obvious. The applicant was perfectly aware that those witnesses were not called and therefore if that had been the basis of any legitimate form of appeal it could have been brought up at the original appeal before this court. It cannot be regarded as a “newly discovered fact”. He also complains that no mapper came to his trial although there had been a letter addressed to Mr. David H. Semple. For the same reason this would seem to be irrelevant to this application and at any rate it is not in any way made clear in what way either Mr. Semple or indeed the other witnesses would have helped him. The applicant’s next complaint is that there was no “formal advice on proofs prepared”. This would not have been a ground of appeal, in my view, even if it had been brought up at the original appeal and it certainly cannot now be brought up as a newly discovered fact. It is clear that whatever form any preliminary advices took the fact remained that the trial was conducted competently by his senior counsel. Indeed, in the next part of his affidavit, the applicant refers to some directions over the telephone which were given in late January, 1999 in regard to calling expert witnesses.

The applicant then avers that around 4th February, 1999, his solicitor informed him that there was a problem in finding a counsel to act for him. He tried to enlist the services of Mr. Michael O’Kennedy, S.C. That did not materialise but his own solicitor was able to provide him with a new legal team. He met these lawyers on the evening of the 9th February at the Distillery Buildings, Church Street, Dublin and he had a consultation lasting thirty minutes. Apparently, they listened to any views he expressed but they indicated that they would not be calling certain witnesses suggested by him.

In his own affidavit, the applicant does make a complaint that he was not happy with the cross-examination conducted by his senior counsel and that he thought it was not vigorous enough. However, as I have already indicated it is not suggested in fact in the submissions made either in writing or orally that there was any incompetence in the conduct of the trial. The rest of the affidavit is taken up with somewhat similar allegations namely, that his wishes were not being complied with by the legal team. If any of this gave grounds for a valid appeal which must be highly doubtful, it would have been an appeal which would have had to be grounded on the original application for leave to appeal to this court. If the applicant’s wishes were not complied with at the trial he was perfectly aware of that and, therefore, there is no “newly discovered fact”.

I do not intend to review in detail the careful written and oral submissions made on behalf of the Director of Public Prosecutions. I am in agreement with the points made and in one way or another they have almost all been referred to already in this judgment. There is, however, one matter arising from those submissions which I have not expressly dealt with and that is the issue of bar ethics. Article 9.4 of the current Code of Conduct for the Bar of Ireland provides that it is improper for a barrister to conduct a criminal defence unless he receives instructions within a reasonable period of time in advance of the date of trial. It has been pointed out by the respondent that this rule is an amended form of the rule considered by the Court of Criminal Appeal in People (Director of Public Prosecutions) v. McDonagh [2001] 3 I.R. 429. The old rule considered in that case provided that it was improper for a barrister to conduct a criminal defence unless he receives his instructions one week in advance of the date of the trial. I agree with the written submission made on behalf of the Director of Public Prosecutions that what is reasonable will depend upon all the circumstances of the case including in the words of the submission “the volume of the brief, the complexity of the case, the level of experience of the counsel being briefed and the level of commitment and time which he can give the case when briefed and that it will be in any case a matter for counsel being briefed having regard to all of the other provisions of Article 9.4 of the Code of Conduct for the Bar of Ireland as to what is a reasonable period of time in the circumstances.” As I have already indicated, no evidence has been adduced of any negative consequences arising from any of the alleged shortcomings of the lawyers. That is the crucial factor because the whole purpose of permitting a second or late appeal is to avoid or cure a miscarriage of justice. Mr. Desmond Murphy, counsel for the applicant, has referred the court to a large body of case law, some of it well known, but I do not think that any of it is of particular assistance in the application of the clear principles applicable under the Act. I do not, therefore, intend to review the cases.

I find it more useful to consider the meaning of the actual words used in the legislation. It would seem to me that the word “significance” in section 2(4) is extremely important. Even if it were the case that no advice on proofs was given and that that was a fact the significance of which was not appreciated by the applicant during the trial or appeal proceedings the question must be asked was the so-called “fact” significant in the sense of the cognate expression “significance” used in the subsection. To put the matter simply, an absence of advice on proofs could only become a relevant fact if there was an arguable case that the defence of the trial was conducted badly as a consequence. In that instance, the lack of advice might have a “significance”. But there is no such evidence here.

In my view, there is not a stateable case for an application under the 1993 Act and I would consider that the application ought to be struck out by the court.

The People (DPP) v. Martin Murray