Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 163

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Judgment Title: D.P.P.-v- Robert Doyle

Neutral Citation: [2006] IECCA 163

Court of Criminal Appeal Record Number: 201/03

Date of Delivery: 19 December 2006

Court: Court of Criminal Appeal

Composition of Court: Macken J., O'Donovan J., McGovern J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Refuse Section 29 application

Outcome: Refuse section 29 application

THE COURT OF CRIMINAL APPEAL

201/2003

Macken, J.
O’Donovan, J.
McGovern, J.

BETWEEN/

THE PEOPLE (at the suit of the
DIRECTOR OF PUBLIC PROSECUTIONS)

-and-

ROBERT DOYLE

Applicant

Judgment of the court delivered by Macken, J. on the 19th day of December 2006

This is an application for a Certificate for leave to appeal pursuant to the provisions of Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). This section, in the form in which it applied at the relevant date, provides as follows:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”

The question which the applicant proposes should be certified is in the following terms:

“In circumstances where an accused person has told lies to another person on a number of peripheral issues linked to the surrounding events of the offences alleged against him, and where the prosecution seeks to rely upon such lies to further the prosecution case against the accused person, is there a need for (sic) the trial judge should give a warning in similar terms to what has become known in the jurisdiction of England and Wales as a ‘Lucas’ warning.”

The applicant contends that the decision of this court delivered ex tempore on the 15th May 2006 gives rise to this question.
The decision of the 15th May 2006
It is important to set in historical context the decision given on that date. On the 24th June 2003 the applicant was convicted, by a jury, of the rape and sexual assault of a woman on the 16th May 1998, following a trial lasting several days at the Central Criminal Court and was thereupon sentenced to 10 years imprisonment on the rape charge and to 5 years imprisonment on the sexual assault charge, the sentences to run concurrently. Leave to appeal against conviction was refused by the learned trial judge.
Notice of an application for leave to appeal was made shortly thereafter and this notice included several grounds. Upon a change in the legal team representing the applicant and on an apparent review of the transcript some considerable time later, an application was brought on motion, returnable for the 15th December 2005, for leave to add a series of extra grounds of appeal to the original application for leave to appeal. Also included was an application for leave to adduce further evidence. This latter application was heard on the 16th March 2006, and proceeded on the basis of the cross examination of several deponents, both on behalf of the Applicant and on behalf of the Respondent. The court rejected the application to adduce further evidence, by ex tempore judgment delivered on that date.
At that stage there were outstanding before the court (a) all of the remaining grounds in the original Application for Leave to Appeal, which had been lodged in time, and (b) all the remaining “new grounds”, sought to be added to the grounds of appeal, included in the Notice of Motion returnable for the 15th December, 2005. Thereafter, and subsequent to the ex tempore judgment delivered on the 16th March 2006, a further notice of motion issued, dated the 27th April 2006, by which the Applicant sought leave to add yet a further additional ground, based on the transcript of the evidence tendered in the course of the cross-examination of witness on the 16th March 2006.
All these outstanding applications came on for hearing on the 15th May 2006, at which time, as noted in the judgment delivered on that date, counsel for the Applicant indicated his client was limiting his application to one seeking leave to add two additional grounds, being (i) a “Lucas” warning ground, and (ii) an alleged “new fact” ground (the subject of the motion dated the 27th April 2006). All the grounds on the original Notice of Application for Leave to Appeal were abandoned, as were all the additional grounds sought to be added by the Notice of Motion returnable for the 15th December 2005.
Leave to add either of the remaining two grounds, as additional grounds of appeal, was refused by ex tempore judgment delivered on that date, although the judgment does not make it as clear as it might have, that it was the Applicant’s application to add these additional grounds to the original Notice of Application for Leave to Appeal which was refused, rather than a refusal to allow actual leave to appeal on those same grounds. It is arising out of that ex tempore judgment that the Applicant now seeks a certificate for leave to appeal, pursuant to s.29 of the Act of 1924.
The Submissions of the Parties
Helpful outline submissions were furnished on behalf of both parties. In oral submissions, Mr. O’Higgins, senior counsel for the Applicant, argues further that the subject of the Applicant’s proposed question concerns a point of law of exceptional public importance arising out of the decision in question, which, as is clear from the text of the question, concerns the requirements for a trial judge to give a “Lucas” type warning to a jury. Having regard to the foregoing history of the applications, it is not entirely clear how this question arises out of the decision of the 15th May 2006, and the Respondent argues that it could not, since that decision was limited to a refusal to accede to the Applicant’s motion for leave to add additional grounds of appeal, and no more.
Before coming to a view on this, it is necessary to consider further the issue which gave rise to the decision. While it is true that the “Lucas warning” was the subject giving rise to the decision of this court of the 15th May 2006, this was raised and determined in a particular context. The argument advanced on behalf of the Applicant in seeking to be permitted to add an additional ground of appeal was that such a warning should have been given by the trial judge to the jury. However, no requisition had been made to the trial judge on this issue, arising from his charge. That being so, and the jurisprudence, both of this court and of the Supreme Court, being quite clear as to the consequences of not doing so, the Applicant was faced with giving an explanation to the court for the failure to address the trial judge in respect of the same, arising out of his charge. The explanation tendered was that counsel at the trial had failed to raise the matter, through inadvertence, and that in order to prevent an injustice, it was appropriate that this ground should be added as a ground of appeal.
This court found in its judgment of that date, that the “Lucas” type warning is now part of Irish law. This court also found that the law on the Lucas type warning as found in this jurisdiction in the case of DPP v Cleary (unrept’d, 3 March 2006), a case referred to during that hearing, suggested that such a warning was to be given at the discretion of the trial court, in light of the finding in the latter case that such a warning may in fact give rise to undoubted confusion in the minds of the jury.
This Court rejected the application for leave to add this additional ground of Appeal, on the basis that a failure to invoke an English rule, at the time of the trial not well developed, and concerning a fairly complex issue, could not be seen to constitute any inadvertence on the part of the then legal advisors to the applicant and that the explanation tendered for not having done so did not assist the applicant. This court also found that even considering the matter from the point of view of ensuring that no injustice was done to the Applicant by reason of the failure of counsel to raise the issue (assuming it could be said to have not to been raised through inadvertence, and that an appropriate explanation had been given - which the court did not accept), no injustice had been established by the Applicant.
The Respondent argues in his submissions that the effect of the application is to circumvent the finding of this Court; that its decision was not as to whether a Lucas warning was appropriate in the circumstances, but whether the Applicant should have been entitled to raise such a ground of appeal in circumstances where the same was not raised at the trial; and that given that the decision was not to permit this ground to be added as a leave ground, the application for a certificate pursuant to Section 29 of the Act of 1924 is an attempt to circumvent the ruling of this court, by allowing the applicant to litigate a substantive issue before the Supreme Court which was not the subject of any substantive hearing before this Court. Further the Respondent argues that where, as here, the Court was engaged in determining whether the Applicant was in a position to come within the principles found, inter alia, in the judgment in DPP v Cronin, unrept’d, the Supreme Court, 3 March 2006, for the purposes of the application, the court was engaged in a factual exercise, which is not susceptible of being the subject of a Certificate pursuant to Section 29 of the said Act.
Counsel for the Applicant argues, however, that the decision to refuse Leave to add the additional ground as a ground of appeal, was itself based on an incorrect finding in law by this court in respect of a Lucas type warning. Although accepting as being very strong the arguments put forward on behalf of the Respondent, nevertheless, in circumstances where the overriding principle is to ensure that the constitutional right to a trial in due course of law is upheld, and that justice has thereby been done, it is appropriate to consider the Applicant’s argument based on this ground. Although not put in such terms, it might clearly be argued that if the decision was based on an incorrect finding in law, this would undoubtedly mean that a question, even if not in precisely the same terms as that suggested could in principle arise out of the decision, even having regard to the wording of S.29 of the Act of 1924. This court makes no finding on the scope of any such appeal from its decision, in the event of a certificate being granted. That is a matter entirely within the discretion of the Supreme Court.
Counsel for the Applicant submits firstly that the judgment in another Irish case, DPP v Brady, (unreported Court of Criminal Appeal, 5th May 2005), did not appear to have been brought to the attention of the Court of Criminal Appeal in DPP v Cleary, supra., referred to in the judgment of this Court of the 16th May 2006. This court agrees, since otherwise McCracken, J., in the course of his judgment in the latter case would not have stated that there did not appear to be any Irish law on the matter. It is to be noted that the judgment in DPP v Brady, supra., was not brought to the attention of this court in the course of the hearing on the 16th May 2006, in circumstances where the court would have expected all appropriate Irish authorities to be cited. Rather, counsel based his argument on that occasion on the existence of what was contended to be a more developed approach on this issue, found in the case law of the English courts. The court was not satisfied that the existence of that jurisprudence, supported the application for leave to add an additional ground, not previously raised in the course of the trial.
Counsel for the Applicant, argues however, that it is essential to have a proper consideration for the development of the law in the United Kingdom on the question of the “Lucas” type warning. In that regard he relies on, inter alia, the following additional cases: R v Goodway [1994] 98 Cr. App. R. 158, and R v Burge [1996] 1 Cr. App R 163. He concedes that a “Lucas” type warning does not always have to be given in cases where a jury might conclude that an accused had told lies before or during a trial, since such a requirement would necessitate a warning in almost every criminal trial. He argues that the case of R v Burge and Pegg [1996], opened to the court at the hearing on the 15th May 2006, requires the direction to be given in four circumstances, and relies on two of these namely:

“3. Where the prosecution seeks to show that something said, either in or out of court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved;

4. Where, although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.”

Further Counsel for the Applicant refers to the parts of the trial, as he did in the course of the hearing on the 15th May 2006, in support of his contention that a “Lucas” warning was called for. It should be noted that this court has already found the case did not come within (3) above, and (4) appears to grant a clear discretion of the trial judge.
The Conclusions of the Court
The issue for this court, taking the Applicant’s case at its highest at this stage, and leaving aside the very strong argument of the Respondent on the true nature of the decision made, is whether a point of law of exceptional public importance arises from the decision of this court on the 15th May 2006, which it is desirable in the public interest should be taken to the Supreme Court by way of certificate. That matter must be decided by reference to the state of the law on the issue, and as to whether it is in the public interest that the law ought to be clarified at this time. In the case of DPP v Cleary, supra., the court stated:

“There do not appear to be any Irish authorities requiring or even recommending such a warning. In any event the context of that case related to corroboration of evidence against the accused given by an accomplice, which is an entirely different context from the situation in the present case. It is certainly open to a trial judge, and perhaps in some cases desirable, to make comments of that nature to a jury, but the court is quite satisfied that this is a matter of discretion for the trial judge and can find no fault in the way in which the matter was dealt with by him in the present case. It should be added, that no requisition was made at the end of the judge’s charge requesting him to give such a warning.”

In DPP v Brady, supra., the court quashed a conviction on the basis that, in the circumstances of that case, a warning should have been given, and in that regard it stated, having found that the accused had given not one, but two, completely false accounts, each of which conflicted with the other:

“Now it is fairly obvious that the fact that he had given a completely false account not once but twice was certain to discredit him in the eyes of the jury and if the jury were uncertain as to whether to believe the complainant or him, he would obviously start with a very heavy burden because of the fact that he had given a lying account pretending that he was not present at the scene at all. In this situation, in relation to the complaint in the ground of appeal as it relates to the charge by the learned trial judge, the learned trial judge very carefully informed the jury of the existence of these two accounts but did so without comment in a totally neutral way, and very carefully told them of these, but did not draw attention to the discrepancy,

but more importantly from the point of view of the ground that is advanced here

, he did not direct the jury specifically with regard to the application of the

burden of proof

and standard of proof on this particular point.”

(emphasis added)

And further:

“So the question is whether

… this was an appropriate

case for the jury to be warned that a person may have lied for a reason other than his guilt such as something that he wishes to conceal from his family because it might disgrace him in some way in the eyes of his family. That decision (Lucas) has been followed in the subsequent case and although there is no express reference to it in this jurisdiction, it seems common sense that when a particular problem arises in the evidence the judge should direct as to how they are to handle it.”

(emphasis added)

In that case the court held that it was not sufficient for the judge to have relied on the general directions with regard to the burden of proof, as:

“they should have been directed in the view of the court that the evidence in question could be used against the applicant, as of course it could, but only on the basis that they were entitled to rely on it and if they were satisfied beyond reasonable doubt … that there was no innocent, that is to say, no non-criminal explanation for the untruthful answers.”

The foregoing jurisprudence makes it clear that this court has not established a principle that in each and every case in which lies of the nature invoked here have been told, there is a positive obligation on the trial judge to give a specific direction in the course of his charge as to those lies. It remains the case, even on the judgment in DPP v Brady, supra. that it is for the trial judge give the appropriate charge when such an issue arises, and to do so in his discretion, although there will undoubtedly be cases in which the correct approach obliges him to give such a warning, and equally when this is so, that the absence of such a warning may constitute a good ground of appeal, which, in an appropriate case, may lead to a quashing of the conviction.
It is not evident from the English cases on which counsel for the Applicant relies, that there is an obligation to charge the jury in each and every case, and counsel for the Applicant accepts this is so. Considering just two of the cases relied upon, R v Goodway, supra., and R. v Taylor [1998] Crim LR 823, these do not appear to support any principle that the warning must be given in all cases.
In the foregoing circumstances the court confirms, as it previously found, that a “Lucas” type warning exists in law in this jurisdiction, the extent or scope of which is to be gauged from the evolving jurisprudence. From the date of the decision in DPP v Brady, supra., a requirement exists, in appropriate cases, to give a warning. That is not changed by the decision in DPP v Cleary, supra., delivered in March 2006. The fact, that in the English case law there may be evidence of a slightly more developed position, or more correctly, of a requirement to give a warning which may apply in a wider number of cases, does not constitute a point of law of exceptional public importance which requires to be resolved in this jurisdiction at this time, by means of a certificate pursuant to Section 29 of the Courts of Justice Act 1924.
There is, in reality, no disagreement between the parties as to whether or not the Lucas type warning now exists in this jurisdiction. Nor is there any great difference between them as to its scope, although clearly its scope may not yet be fully defined. Nor is there any real difference between the parties as to the obligations on a trial judge in relation to the same, in appropriate cases. The real difference which arises between them is as to its non application in the present case. The decision of this court on the non application of the warning in this case does not raise a point of law of exceptional public interest nor is it in the public interest to grant a certificate for leave to appeal pursuant to Section 29 of the Act of 1924.
While it might be argued that, in exceptional circumstances, to permit the natural evolution of the appropriate scope or specific application of a “Lucas” type warning would create such an injustice for an applicant, that a question ought to be asked of the Supreme Court by means of a certificate pursuant to Section 29 of the Act of 1924, the present case does not in this court’s view fall into that category. It will be recalled that the Applicant failed to persuade the court that the alleged failure to invoke the “Lucas” warning requirement at the time of his trial, was indicative of any inadvertence on the part of the Applicant’s then legal advisers. Further, the court also found that although the alleged inadvertence had not been established, neither could it be said that any injustice flowed from any failure to give such a formal warning in the particular circumstances of the present case. The Applicant has put forward no grounds upon which any injustice arises or did arise over and above the reasons previously submitted, and rejected by the court. Leaving aside therefore the finding of this court that the application and/or scope of the rule may properly be developed on a case by case basis, neither is it a case in which any exception to that finding is called for in the present case, in order to do justice to the applicant.
In the foregoing circumstances, the court refuses the application for a certificate pursuant to Section 29 of the Courts of Justice Act 1924.