Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 32

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Judgment Title: D.P.P.-v- Eamonn Cooke

Neutral Citation: [2006] IECCA 32

Court of Criminal Appeal Record Number: 9/03

Date of Delivery: 15/03/2006

Court: Court of Criminal Appeal

Composition of Court: Geoghegan J., Gilligan J., Dunne J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result
Geoghegan J.	Refuse application to adduce A.E.

Outcome: Refuse application to adduce A.E.

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THE COURT OF CRIMINAL APPEAL

Record No. 009/2003

Geoghegan J.
Gilligan J.
Dunne J.

BETWEEN:

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

Respondent

and

EAMON COOKE

Applicant

JUDGMENT of the Court delivered on the 15th day of March 2006 by

Mr. Justice Geoghegan

Pending the hearing before this court of an application for leave to appeal against 33 convictions relating to sexual offences involving four different female persons, the applicant has brought a motion on notice before the court seeking leave to add and rely upon certain further grounds of appeal over and above the grounds already lodged and additionally and more importantly leave to adduce additional evidence of a solicitor who acted for the applicant in connection with the purchase of a house in July, 1987 so as to help to prove that the applicant was not the occupier of the house on dates on which it is alleged that he committed some of these offences in that house. It is submitted on behalf of the applicant that this additional evidence would establish that some of the offences including the most serious one for which the applicant was sentenced to ten years imprisonment could not have taken place as the applicant’s occupation of the house is inconsistent with the dates alleged and additionally or alternatively that the credibility of the complainants in relation to all the offences would be damaged by this evidence.

There is a further complication in relation to the motion and indeed it is the only aspect that gives the court any concern. On the morning of the hearing of the motion there was produced on behalf of the Director of Public Prosecutions but without being exhibited in any affidavit a statement of one Martin Fahey who claimed he was the vendor of the house in question in the sale to the applicant. The alleged significance of his evidence is likewise the date of the completion of the sale. There is no formal application before this court either by way of a new notice of motion or an amendment of the existing notice of motion and still less is there an affidavit filed on behalf of the applicant seeking to adduce as additional evidence the evidence of Mr. Fahey. No procedural criticism can be made of the applicant in this regard in that the statement as such of Mr. Fahey only came to light on the morning of the hearing of the motion. On a de bene esse basis the court heard submissions from both sides as to whether additional evidence of Mr. Fahey might be admissible. This was always with the view that, if the court thought fit, some formal procedure would be laid down such as an amendment of the existing notice of motion or perhaps a fresh application to be made at the hearing of the application for leave to appeal. However, any kind of a fresh application, whether made by amendment of the existing notice of motion or by a new notice of motion would require the consent of the court and this is a matter which will be ruled on in this judgment.

The additional grounds for leave to appeal which the notice of motion seeks to have added can be paraphrased as follows:
(a) An allegation that the trial was unsatisfactory and the convictions unsafe because the applicant did not have access to certain transcripts of child care proceedings in the District Court in circumstances where allegedly some of the complainants had given evidence which was at variance with their evidence of the trial.
(b) A ground of bias on the basis that a reasonable observer at the trial would have considered that the defence was treated unfairly in that a document entitled “Courts submissions, September 2001” which had been prepared for the purpose of the child care proceedings was allowed to be adduced by the prosecution notwithstanding that transcripts of the child care proceedings had previously been denied to the applicant.
(c) Criticism of the trial judge in failing to discharge the jury or otherwise failing adequately to direct the jury in relation to alleged inadmissible evidence consisting of alleged previous misconduct of the applicant.
(d) A general criticism of the trial judge’s charge.

The notice of motion went on to seek leave to adduce the evidence of a solicitor, Tim McEniry, which was to the effect that the house purchase already referred to was closed on the 27th July, 1987 and that the applicant did not receive the keys for some seven to ten days later and that these dates are inconsistent with the alleged dates of some of the offences. A detailed affidavit has been sworn in reply to this motion by Elizabeth Staunton, solicitor in the office of the Chief Prosecution Solicitor. In relation to the transcript of the child care proceedings, Ms. Staunton has sworn in that affidavit that the respondent did not have the transcript and has pointed out that it was within the power of the applicant to seek to obtain the transcript in advance of the trial. As to whether he would have been successful in that application is not relevant. In relation to the other additional grounds set out in the notice of motion and sought to be added, it would appear that no objection or requisition was made in relation to these at the trial and they are now being raised following on a third firm of solicitors coming into the case and trawling through the transcript. Except in rare circumstances, this court will not allow additional grounds to be added as a consequence of such process. Indeed even an original ground of appeal will not normally be upheld if the point raised was one which should have been the subject matter of a requisition and was not. There is a detailed treatment of this topic in the judgment of this court delivered by Hardiman J. in The People (DPP) v. Cronin (unreported judgment delivered the 16th May, 2003). We would strongly endorse what was said in that judgment. There are no exceptional circumstances which would render it reasonable for any of these additional grounds of appeal to be allowed on grounds of justice in this case and, accordingly, the motion, in so far as it seeks to add new grounds, must be refused.

Turning now to the question of the additional evidence, it would appear that the applicant has failed to satisfy the criteria which subject to exceptional circumstances have to be established before additional evidence with a consequent new trial can be allowed by this court. Although there have been various decisions of this court over the years, some reported and some unreported, relating to the allowance of additional evidence there is nothing to suggest that the fundamental principles are any different than those which apply in the Supreme Court. The most succinct summary of those principles is contained in the judgment of Finlay C.J. in Murphy v. Minister for Defence [1991] 2 I.R. 161 at 164. The relevant passage reads as follows:

“The principles governing the admission of fresh evidence on an appeal to this Court have been set out in the decision of this Court in

Lynagh v. Mackin

[1970] I.R. 180. Neither counsel for the appellant nor the respondents on this motion has suggested to the Court that any other principles apply, although the Court should review that decision.

I am accordingly satisfied that the principles applicable are as follows:-

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

Neither the first nor the second of these three criteria is met in this case.

As far as Mr. McEniry is concerned, he was the solicitor acting for the applicant in connection with the purchase of the house already referred to in which the applicant took up residence. It is obvious from other parts of the evidence that the applicant is a careful and meticulous person and if he had considered that any great importance was to be attached to the precise date of the closing of the sale, with a certain amount of diligence that evidence could have been made available at the trial. Although Mr. McEniry supplemented his evidence on affidavit by oral evidence on the hearing of this motion it has to be said that the evidence on the affidavit was extremely thin indeed with no documentation of any kind exhibited. Apparently, the property was registered land. Nevertheless, it should have been possible to obtain relevant dates via Mr. McEniry and the Land Registry at the time of the trial.

As already pointed out, there is no formal application before the court as yet for an order permitting the additional evidence of Martin Fahey. The court does not consider it credible that his identity and whereabouts could not have been discovered if it was thought to be significant by the applicant for the purposes of his trial. There are various sources from which the occupier of any given house at any given time can normally be discovered. All Mr. Fahey says in his statement is that he resided in that house until the 31st July, 1987. He claims that he knows that date because he had a daughter born on the 26th June, 1987 and that he moved out of the house five weeks later. He says that he never leased or rented the house at any stage and that he resided there until the keys were handed over.

Fundamentally, neither Mr. McEniry’s nor Mr. Fahey’s potential evidence are arguably relevant to anything except credibility. It is all to do with dates. The evidence would have been obtainable with diligence and probably the reason it was not was its relative insignificance.

Although the statement of Martin Fahey has now come from the Director of Public Prosecutions being a statement taken by the gardaí on the 16th January, 2006, there was no obligation in our view, on the Director of Public Prosecutions at the time of the trial to locate the previous owner of the house and take a statement from him. It would be beyond the limits of the obligations of the Director of Public Prosecutions.

The second of the criteria, summarised by Finlay C.J., is not established either. It is most improbable that the evidence of either Mr. McEniry or Mr. Fahey or the combined evidence of both would have had an important influence on the result of the case leading to an acquittal on any of the counts in respect of which the applicant was convicted. The relevance of the house is that the offences against FG and CG were alleged to have occurred there. According to the transcript of day 4 of the trial CG gave evidence that she was born on the 31st January, 1977 and was, therefore, aged ten on the 31st January, 1987. She was a neighbour of the applicant’s. She gave evidence of being sent by her mother to collect her sister FG from the house in which the applicant lived and that from that day on she was regularly sexually assaulted by him over a period of two years. CG was asked in cross-examination could she remember what time of the year it was that she first went down to the applicant’s house. Her answer was as follows:

“A. I think it was early into the summer, I think. I am not really too sure but I think it was the summer.”

It was then pointed out to her that she had appeared to indicate, earlier in the cross-examination, that the offending incidents started some days after her birthday which would have been the 31st January, 1987 whereas at this point she was saying it was summer time. On a reading of the transcript there is no impression of a witness telling lies. There was undoubtedly some apparent confusion in relation to her evidence about the birthday and it may not have been all that clear why that occurred. There is no impression that it was in the context of lying. What does clearly emerge in her evidence was that she was finally stating that the abuse happened in the summer of 1987. Her own counsel, Ms. O’Malley, attempted to conduct a re-cross-examination following on a re-examination and was stopped by the trial judge from doing so. In her submission to the trial judge at p. 20 of book 4 giving reasons why she wanted to take this unusual course, she appears clearly to accept that the evidence was that CG recollected the first incident started in the summertime and as Ms. O’Malley pointed out, that would make it the summer of 1987. This is in no way inconsistent with the alleged dates now of taking possession following on the sale apart from the reference to “early into the summer” at one stage. Although there is an element of vagueness as to dates in the applicant’s own evidence both in direct examination and in cross-examination, it appears to be accepted by him that once he moved into the house in question he was a neighbour of CG and FG. He admitted knowing CG well though claiming slight acquaintance with FG.

Nor would the desired additional evidence, as a matter of probability, have had any effect on the verdicts in relation to the offences against FG. She believed the abuse began when she was aged six. She became seven years of age in November, 1987. There seems to have been some suggestion from her that the abuse might have started some time after her sixth birthday. But in re-examination Mr. McCarthy for the Director of Public Prosecutions asked her some questions trying to pin her down on dates. At Q. 399 on day 4 she answered:-

“A. To be honest, I can’t recall what age I was.”

That precise question related to when the abuse finished but she gave evidence to the effect that the abuse had gone on for about a year or a year and a half and was on a regular basis.

All of this was in the context that the jury had to consider numerous other counts in relation to two other girls in respect of offences alleged to have occurred in the 70’s. Within the context of the most detailed evidence of the sexual offences committed and precisely what happened and their surrounding circumstances the date of the closing of this house and the taking of possession of it would form a minute part of the evidence as a whole. It is improbable in the extreme that even if the evidence of Mr. McEniry and Mr. Fahey had been available at the trial the verdicts would have been any different.

Accordingly, the application for leave to adduce the additional evidence of Mr. McEniry will be refused, the informal application relating to Mr. Martin Fahey will also be refused and the court will not entertain any more formal application in that regard.

DPP v. Cooke