Irish Court of Criminal Appeal

You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- M.S. [2007] IECCA 80 (31 July 2007)
URL: http://www.bailii.org/ie/cases/IECCA/2007/C80.html
Cite as: [2007] IECCA 80

[New search] [Help]

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

Neutral Citation: [2007] IECCA 80

Court of Criminal Appeal Record Number: 147CPA/05

Date of Delivery: 31 July 2007

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

THE COURT OF CRIMINAL APPEAL

Macken J. [2005 No. 147 CPA]
Lavan J.
Murphy J.

In the matter of Section 2 Criminal Procedure Act 1993 and
In the matter of Section 29 of the Courts of Justice Act 1924

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 31st July 2007

The Applicant applies to this court for two reliefs, one pursuant to each of the above entitled Acts. The Applicant appears in person. Before dealing with the merits, it is important to repeat the prior history of applications made by or on behalf of the Applicant and previously detailed in the judgment of this court delivered on the 7th April 2006, arising out of his conviction on the 11th December 2000 on six counts of indecent assault and one count of sexual assault on his daughter. He was sentenced to two years in respect of the several counts, the sentences to run concurrently. No application was made for leave to appeal the aforesaid conviction and sentence at the time when sentence was imposed. It was only after a lengthy period had elapsed that the Applicant, in person, apparently applied to the trial judge for leave to appeal, which application was refused. Some time later again, he lodged a Notice of Application for leave to appeal to this court.
The first application to this court in respect of the sentences, was an application brought by the Director of Public Prosecutions seeking a review of the sentences imposed on the grounds of undue leniency. When that application came before this court on 11th November, 2003, the Applicant, through his then counsel, sought an adjournment of his Notice of Leave to Appeal application and of the DPP’s application, on the basis that he wished to lodge grounds of appeal, none having being lodged even at that late date, almost three years after conviction. As is clear from the judgment of April 2006, the application for an adjournment was heard but was refused by judgment delivered on 11th November 2003. In that judgment this court recited that it had been informed by counsel for the Applicant, that the Applicant wished to bring new evidence to the court. Counsel was not in a position to say what that new evidence was, nor was he in a position to proceed with the appeal based, in the usual way, on the transcript of the evidence tendered at the trial or on the manner in which the trial was conducted. Having refused an adjournment of the application for leave to appeal, this court proceeded to hear the application of the DPP and imposed an increased sentence, in effect of four years, for the reasons set out in its second judgment of 11th November 2003.
The Applicant subsequently brought a motion pursuant to s. 29 of the Courts of Justice Act, 1924, seeking leave to obtain a certificate from the Court of Criminal Appeal to the effect 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 this court (McCracken, J. presiding) on 2nd December, 2004, for the reasons set out in the judgment delivered on that date. What the Applicant sought to have referred was an unspecified question concerning the refusal of this court to grant him the adjournment referred to above, not a point arising in respect of his conviction or sentence. This court drew attention to the fact, accepted by the Applicant, that the question of an adjournment is always one within the discretion of a court, and secondly that such an application did not appear to be one within the ambit of Section 29 of the Act of 1924. The section will be set out in greater detail below. Further this court held that it could not be said that it was, in any event “desirable in the public interest”, as required under Section 29, that such a question should be certified.
This court refers to a further ruling on an appeal by the Applicant from a refusal of the High Court (Dunne, J.) to grant leave to issue judicial review proceedings in respect of contradictory evidence allegedly given by gardaí. It seems clear that these include allegations concerning the criminal trial which led to the conviction in 2000 the subject of the present application. That appeal was rejected by the Supreme Court on the 11th May 2005.
The final application made, this time pursuant to Section 2 of the Criminal Procedure Act 1993 was by the Applicant in person. This is the subject of a written judgment of this court (Macken, J.) delivered on the 7th April 2006, following upon an oral hearing (as had occurred in all previous applications) on the 10th March 2006. By that application, the Applicant sought to have his conviction in 2000 set aside on the basis of new evidence. Having regard to the fact that the Applicant was a litigant in person, the court, notwithstanding lack of clarity in the submissions, and an absence of any documentary or other evidence to support his allegations, determined the several matters upon which he moved his application. These are more fully set out in the judgment delivered on 7th April 2006, and it is not necessary to repeat them.
The Present Section 29 Application
As to the present application, this seeks inter alia, a certificate pursuant to Section 29 of the Criminal Justice Act 1924 (now amended). In the form in which it appeared at the relevant date, it read 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 section sets out two requirements which must be met, namely, that a point of law of exceptional public importance arises, and that it must be in the public interest that such a point of law be certified. Applying these two requirements to the Applicant’s case is not without considerable difficulty. Firstly, the Applicant, contrary to the normal situation, has put forward no suggested questions for certification by this court. What he appears to suggest, from the submissions which he made, is the following.
The decision of this court on the 7th April 2006 involves such a point of law. In his submissions for the hearing which led to that decision, he pointed to misconduct and lies on the part of the gardaí in the course of his trial, and to their alleged failure to comply with the Judges’ Rules in the course of their investigation and of their questioning of him. The Applicant accepts, however, that his submissions in the latter hearing were based on his belief that the entire of the transcript of his trial would be before this court, and that this court would be able to glean, from that transcript, the case he was making.
On this issue, the court is satisfied that the Applicant has raised no point of law of exceptional public importance. An Applicant must, at the very least during the course of the oral hearing – which is an integral part of all applications coming before this court – place before the court the actual evidence upon which he relies, and crucially, must address that evidence in sufficient detail to support his claim that the conviction was unsafe. Neither as part of the written submissions, such as they were, in the earlier application, nor in the course of the oral hearing in that regard, nor even in the course of the present application, has the Applicant addressed these essential matters. Instead the Applicant repeats the allegations made against gardaí, refers globally to the transcript of the trial and contends that these transcripts are, in reality, self evidently proof of his allegations. This court is not satisfied that, on the basis of the submissions made to it, both the written material furnished, and also the oral submissions, the Applicant has established that there is any point of law of exceptional public importance identified by the Applicant.
The second matter which the Applicant wishes to raise concerns an allegation that the earlier judgment of this court in April 2006 failed to identify correctly the reasons for which new evidence was sought to be admitted, for the purposes of supporting the Applicant’s claim that his conviction was unsafe. This matter will be dealt with in greater detail in the context of the second application made pursuant to Section 2 of the Act of 1993. For the purposes of a certificate sought under the present heading it is sufficient to say that the Applicant has, again, identified no point of law of exceptional public importance arising out of the decision upon which this court should certify a question for the Supreme Court.
For the foregoing reasons, the application for a Certificate pursuant to Section 29 of the above Act is refused.
Section 2 Criminal Procedure Act 1993 (“the Act of 1993”)
It should first be recalled that the applications which led to the judgment delivered on the 7th April 2006 were made pursuant to the above Act. 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.”

In this application, the Applicant relies on three main issues. The first concerns the finding by this court in its decision that the allegations made against the gardaí were just that, mere allegations. The Applicant contends that there were breaches of the Judges Rules by the gardaí in the course of the investigation and also that gardaí had told lies and had committed perjury during the course of his trial. It seems clear from the submissions made on this application that the Applicant was of the view that court transcripts allegedly evidencing these matters would be available to this court, and more importantly that those transcripts would, in effect, “speak for themselves” in the sense that they would prove the allegations. This issue was already determined in April 2006 and ordinarily would be res judicata.
While it is accepted that the Applicant is an Applicant in person, and all appropriate allowances must be made for this, the court rejects the claim that it was reasonable for the Applicant to assume that such allegations were evident on the face of the transcript, even if all of the transcripts were before this court. In his written submission, the Applicant states as follows:

“The court now has in its possession, unpretentious, self-evident documentation from official court transcripts from the trial of case 139/99 which clearly show the perjury and misconduct which was conducted by guards involved in the said case.”

The onus is on any Applicant who seeks to set aside a conviction, following a jury trial, on grounds that the verdict is unsafe, or because a newly discovered fact has shown that a miscarriage of justice has occurred, to present to the court evidence to support the allegations made, and this has not been done. In the present application, even if the matter were not res judicata, as it is, and even allowing for the failure of the Applicant to understand his obligations in that regard on the date of the earlier application in March 2006, such material as has now been presented does not, in any event, constitute evidence new or otherwise, to suggest that the verdict was unsafe or that the conviction should be set aside.
These transcripts do not disclose facts coming within the ambit of s.2 of the Act of 1993. The matters concerning the alleged misconduct of the gardaí during the course of the investigation and their treatment of the Applicant during that time do not constitute “new facts” within the ambit of the section, since these very facts were known or could have been readily discerned prior to the trial, so far as concerns the alleged breach of the Judges Rules, or other pre-trial misconduct. As to the allegation of perjury by gardaí during the trial, assuming this to have a basis, these too should have been known to the Applicant at the relevant time. Both prior to and during the course of the trial, the Applicant was represented by counsel and solicitor. It is clear that the significance of these matters would also have been known and, importantly, well appreciated by those legal advisers. The fact that the Applicant now says he did not really appreciate their significance cannot, at this remove, be accepted as a ground for admitting these as so called “new” evidence. And it cannot be gainsaid that the jury determining the facts, accepted the evidence of the garda witnesses.
It is true that the Applicant now also contends that his legal advisers were incompetent, but that is not an issue which is the subject of this application, and there was at all times a full remedy open to the Applicant in respect of this complaint, had he wished to avail of the same long prior to this application.
The second issue raised in the same context concerns evidence which the Applicant contends was misunderstood by this court in its judgment delivered in April 2006. The context is the following. In the course of his trial, the complainant gave evidence of sexual assaults taking place, inter alia, at a certain address in Dublin. The house in question according to the Applicant had been sold at the time of the trial. The fact that it was sold, according to the Applicant even at the time the offences were allegedly committed, was submitted by the Applicant as part of his grounds for seeking to set aside his conviction, and was referred to in the judgment of the court in April 2006. However, the Applicant states that the actual sale of the house was not the relevant issue for his application, but rather the fact that, having regard to the evidence given by the complainant on factual matters, his sisters, as witnesses, would have been in a position to counter that evidence. Further he states that certain documents and/or evidence which would be available to the Applicant from the Department of Social Welfare also constitutes “new” facts, sufficient to render the conviction unsafe, and the same should be set aside. As to the two witnesses, who could have assisted the Applicant at his trial, and the evidence they could give, both the witnesses and their likely evidence were known to the Applicant prior to and during the trial, but he says in his oral submissions that he did not appreciate the significance of this. He contends that the witnesses did not have adequate notice to come to court at the time, and he was therefore deprived of their evidence. The Applicant contends that, because of the short notice, there is a good explanation for their absence. As to the social welfare payments which he regards also as being significant, because he contends these would establish that he was not at the premises where the complainant said he was at the time of the assaults, this too is not a “new” fact.
It is long established in the jurisprudence of this court that, whereas a party may be entitled to seek to set aside a conviction on the grounds that new evidence has come to light, there are several rules regulating such an application. Firstly, in accordance with the judgment in the case of Lynagh v. Mackin [1970] I.R. 180, such evidence is described as follows:

". . .first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, 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; thirdly, 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."

Taking the Applicant’s case at its highest, and therefore accepting that these two witnesses had or might have “new” evidence, it is next necessary to consider whether, in that event, the evidence would have had an important influence on the case. In that regard the Applicant contends that it would, because he says they could have given evidence that the Applicant did not send children out of the house to go elsewhere while keeping the complainant in the house and assaulting her, as she had said in her evidence, and further that the evidence of the Department of Social Welfare would have indicated that at the dates on which he allegedly sexually assaulted the complainant, he was not at the address in question. While not denying in any way that the Applicant believes the two witnesses might well give such evidence, or that documents from the Department of Social Welfare might support his allegation as to his presence at certain premises, there is no written indication of any description from any witness as to what evidence might have been adduced, or might still be adduced, in respect of the trial. Nor is there any affidavit sworn by the Applicant, even on the basis of hearsay, as to what either any would say. The trial concerned several indecent or sexual assaults. Of their nature such assaults, as here, occur in private. There is no evidence of new facts at present before the court which would support the Applicant’s assertions of the existence of such claimed facts, or would have an important influence on the result of the case.
The Applicant has also mentioned other examples of so-called new evidence, which in reality is not new in the sense required. It is not necessary to list these in any further detail. They include matters already dealt with in the earlier judgment of the 7th April 2006. The fact that they are not mentioned specifically in this new application is not to be taken as indicative of the fact that they have not been taken into account by the court. Much of what is now before the court on this occasion was dealt with on any one of several previous occasions in one form or other. This application is refused on grounds that the evidence is not new within the ambit of the law, in particular the jurisprudence on the correct interpretation and the application of Section 2 of the Act of 1993.
The court wishes to add that it is unacceptable for the Applicant to continue to make sequential applications to this court in respect of matters arising out of his conviction. This is the fifth or sixth judgment on applications brought by him. It is axiomatic that, where a party seeks leave to appeal against conviction, and lodges a Notice in respect thereof, all his complaints as to the manner in which the trial took place, or as to the manner in which question marks arise on the investigation carried out prior to trial, as well as any application seeking to admit new evidence, must be included at the earliest possible date, on the first available opportunity, and in a timely manner. Some or other complaints may be appropriately dealt with by way of judicial review, but any application in that regard must also be brought in a timely manner. The application for leave to appeal was not prosecuted in a timely manner by the Applicant. Instead the Applicant lodged an application in 2004 pursuant to Section 29 of the Courts of Justice Act 1924 in respect of the refusal to adjourn his Leave to Appeal application. Subsequently, he sought, in 2005, to have his conviction quashed pursuant to Section 2 of the Act of 1993. These were rejected by this Court.. He now seeks, yet again, a Certificate pursuant to the Section 29 of the Act of 1924 and, jointly, the setting aside of his conviction, again under Section 2 of the Act of 1993 on grounds of “new” evidence.
These issues were fully considered in detail in People (Director of Public Prosecutions) v. Willoughby (unreported, Court of Criminal Appeal, 18th February, 2005). Having reviewed the Irish authorities cited above and a number of English authorities, the court considered it could formulate principles appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal as follows (at p. 21):-
a) “Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources
b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or required at the time of the trial
c) It must be evidence which is credible and which might have a material and important influence on the result of the case

d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”.
In a judgment delivered on the 30th July, 2007 the Supreme Court has reiterated these principles. In its unanimous decision in Director of Public Prosecutions v O’Regan (unreported 30 July 2007) Kearns J stated:

“While the requirement for “exceptional circumstances” may be seen as setting the bar at a fairly high level, the policy considerations to which reference has already been made demand no less. The entire criminal justice system would be incapable of functioning if every trial was subject to a re-run on new grounds or new evidence in an appellate court. Thus it is entirely reasonable to insist upon a “due diligence” test in respect of evidence which was known to exist, or which could reasonably have been obtained at the time of trial but was not. Equally, it can only be seen as entirely reasonable and proportionate to incorporate in the principles a requirement that the proposed new evidence be credible and, if admitted, that it might have a material or important, though not necessarily decisive, influence on the result on the case. The court is also satisfied that any consideration of materiality must be conducted by reference to all the other evidence at the trial and not considered in isolation.

”

Since this is a restatement of principles already well established this Court does not consider it necessary to invite the parties to address this latter judgment.
Having regard to the foregoing, the applications respectively for a Certificate pursuant to Section 29 of the Courts of Justice Act 1924 and the application pursuant to s.2 of the Criminal Procedures Act 1993 to quash a conviction on the basis of the existence of new evidence, are both refused.