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Cite as: [2006] IECCA 48

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Judgment Title: D.P.P.-v- M.S.

Neutral Citation: [2006] IECCA 48

Court of Criminal Appeal Record Number: 147CPA/05

Date of Delivery: 07/04/2006

Court: Court of Criminal Appeal

Composition of Court: Macken J., Lavan J., Murphy J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Refuse application

Outcome: Refuse application

COURT OF CRIMINAL APPEAL

Macken, J.
Lavan, J.
Murphy, J.

[2005 No. 147 CPA]

IN THE MATTER OF SECTION 2 CRIMINAL PROCEDURE ACT, 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
M. S.
APPLICANT

JUDGMENT of the court delivered by Macken, J. on the 7th day of April, 2006

This is an application made pursuant to s. 2 of the Criminal Procedure Act, 1993 seeking to have the conviction of the Applicant set aside. The Applicant was, on 11th December, 2000, found guilty of six counts of indecent assault and one count of sexual assault in respect of his daughter. The three day trial in The High Court was presided over by Mr. Justice Carney.
There were six counts of indecent assault in respect of the years from 1982 to 1988, during which time his daughter was aged between seven and twelve. The remaining count of sexual assault occurred on 24th October, 1989, some ten years after the last of the indecent assaults aforesaid.
The learned trial judge imposed a sentence of two years imprisonment in respect of each of the counts, the sentences to run concurrently. Following that sentence the Director of Public Prosecutions applied to the Court of Criminal Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993, for a review of the sentences on the grounds that the same were unduly lenient. That application was brought before the Court in a timely fashion.
It is to be noted that no application was made by this Applicant’s counsel for leave to appeal the aforesaid conviction and sentence at the time when sentence was imposed. It was not, in fact, until a lengthy period had elapsed thereafter that the Applicant, in person, apparently applied to the trial judge for leave to appeal, which application was refused. The Applicant some time later again lodged a notice of application for leave to appeal to this Court. That application, as well as the application on the part of the respondent, came before this Court on 11th November, 2003.
On that date counsel for the Applicant sought an adjournment, there being no actual grounds of appeal lodged with this Court in support of the application. That application was duly entertained by the Court and refused for the reasons set out in the Court’s judgment. The Court of Criminal Appeal then proceeded to hear the application of the respondent and duly delivered judgment, imposing an increased sentence on the Applicant in the manner and for the reasons therein set out.
Shortly thereafter the Applicant brought a motion pursuant to s. 29 of the Courts of Justice Act, 1924, seeking leave to obtains a certificate from the Court of Criminal Appeal to the effect that the Applicant wished to argue that there was a point of law of exceptional public importance in respect of which it was in the public interest that an appeal should be taken to the Supreme Court. The application for that certificate was refused by the Court of Criminal Appeal on 2nd December, 2004, for the reasons set out in the judgment of that court delivered on the motion.
The Applicant’s present application, pursuant to s. 2 of the Criminal Procedure Act, 1993 (“the Act of 1993”), came before this Court for hearing on 10th March, 2006. It seeks to have his conviction quashed on several grounds allegedly falling within the ambit of that Section. The Applicant represented himself. In these circumstances the Court was mindful that it should be clear as to the grounds relied upon by the Applicant in support of his application. Having heard the Applicant fully, it is clear that essentially his grounds may be summarised as follows:-
1. He wished to rely on new facts or evidence not previously known to him,
2. There was misconduct on the part of the Gardaí in the course of his trial,
3. The trial was conducted improperly, and
4. The acquittal of the Applicant on counts of rape in the same indictment was not, but ought to have been, taken into account by the trial judge.
Having heard all the arguments of the Applicant in respect of these grounds, and of counsel for the respondent, the Court reserved its decision.
The Court has fully considered the Applicant’s complaints on which he seeks a finding from this court that there are newly discovered facts which establish that there has been a miscarriage of justice. The Applicant in his submissions to the court relies inter alia on the following matters. Firstly, a commentary on the section by Professor Dermot Walsh in his book “Criminal Procedure” at pg. 1214, as follows:-

“At the heart of this procedure is the allegation that new evidence has emerged which suggests that there may have been a miscarriage of justice or that the sentence is excessive. The new evidence must take the form of a new fact or a newly discovered fact. A ‘new fact’ in this context means a fact which was 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. A ‘newly-discovered fact’ is 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 advisors during the trial or appeal proceedings.”

As to the facts contended for as “new”, the Applicant states and argues that evidence of those facts is available from a Mrs. (L) and a Mrs. (C). The proposed witnesses are in fact the two sisters of the Applicant. He classifies their potential evidence as “new evidence”. He argues that they could and would give evidence that on certain dates on which the complainant stated that she was sexually assaulted by the Applicant at a certain premises in Dublin, those premises were in fact already disposed of or sold on.
The respondent submits that the question whether the evidence (be it either a new fact or a newly discovered fact) comes within the ambit of an application pursuant to s. 2 of the Act of 1993 is a matter for the court to determine. The respondent submits however that the evidence that they might give does not constitute “new evidence” in any sense in which that that expression is interpreted, the real issue in the case being whether there is “new evidence”, in reality, or merely a failure to call witnesses who could have tendered that evidence had they been called and available for the trial, on the decision of counsel who conducted the defence. In the circumstances it is argued that the application based this ground is misconstrued. According to the respondent, the trial had adjourned on a Thursday afternoon and had not resumed until the following Monday morning, but no reason had been offered by the Applicant for the absence of the evidence of these witnesses at the trial, when it was clear their availability could have been readily procured during the adjourned period.
As to the allegation of misconduct on the part of the Gardaí during the course of the trial, the Applicant alleged that there were untruths on their part, but did not
detail these in any particular manner, nor indicate how they might constitute grounds for the suggestion that they led to a miscarriage of justice. The Respondent argues that the Applicant’s submission are silent (save for a broad general allegation) as to what acts constitute the alleged misconduct of a garda or gardaí during the trial. If, however, there was any discrepancy between the evidence given on any of the various occasions on which a particular garda gave evidence, this arose in circumstances where care was taken by the prosecution in the trial to ensure that there was no reference to parties other than the person(s) in respect of whom the Applicant was being tried. This, it is submitted is the correct approach to be taken in circumstances of this type and could not constitute misconduct on the part of a garda witness.
Next, in relation to the allegation of improper conduct of the trial itself, the Applicant refers to various points that he contends show that the trial was unfair or improper, including, (a) the failure of the trial judge to see discrepancies in the custody records; (b) errors in the trial judge’s charge to the jury; (c) allowing the injured party to have breaks while giving evidence and (d) allowing the prosecution to address the judge in the presence of the jury before delivering his charge.
In respect of this ground, the Respondent submits that none of these complaints constitute grounds upon which the Court of Criminal Appeal could or should grant the relief sought quashing this conviction on grounds of miscarriage of justice and further, the Applicant had already been refused leave to appeal the conviction in question, pursuant to his own earlier application.
Next the Applicant contends that his acquittal in respect of counts of rape was a relevant factor to be taken into account in respect of his conviction, because these acquittals would have a bearing on the “credibility of a confession or the evidence of a prosecution witness” in respect of the other charges for which he was found guilty, but wrongly they were not taken into account by the trial judge.
The Respondent argues that the contention that the Applicant was acquitted in respect of other matters arising from the same book of evidence is to ignore the fact that different evidence arose in each case in respect of different charges. The indictment in the matter contained a large number of counts relating to other allegations against the Applicant, involving other family members, and the Applicant was acquitted on counts relating to two other persons. As to the subject matter of this application, the prosecution adduced evidence of admissions made by the Applicant, and it is submitted by the Respondent that these would likely have had a significant bearing on the jury’s decision in a manner that did not arise in the cases in respect of which he was acquitted.
The court, having considered the Applicant’s application, and his submissions as well as those of the respondent, is satisfied that the Applicant has failed to make out any case pursuant to the provisions of s. 2 of the Act of 1993. On the contrary, the court considers the arguments of the respondent well founded.
Section 2 of the Act of 1993 in its relevant portion reads as follows:

“2.

(1) A person—

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

(i) on indictment, or

…

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.”

So far as concerns the alleged existence of new evidence, the Applicant has failed to put forward any argument in support of his, mere, allegation that the information was not known to him at the relevant time. As to the house in respect of whose sale, Mrs. L and Mrs. C would give evidence, it became clear in the course of the oral submissions to this Court, that its sale had taken place well prior to the trial, and no explanation has been tendered as to why, if that be so, no steps were taken by the Applicant to secure evidence as to that fact.
In the case of allegations that the trial was conducted improperly, and that the garda(i) had misconducted themselves in the trial, in relation to their evidence or otherwise, no material facts or evidence have been tendered, or legal argument made by the Applicant, in support of his claim in that regard nor has any case been made out on any of the grounds put forward that the trial was conducted improperly. And as to his allegation that his acquittal of rape in respect of certain other complainants ought to have been a factor to be taken into account, the court is not satisfied that would be a relevant factor for the trial judge to have regard to, or to permit to be left to a jury.
In the circumstances, having failed to establish any grounds for the relief sought, the relief on the Applicant’s motion is refused.