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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Michael Anthony Walsh [2010] IECCA 80 (21 July 2010)
URL: http://www.bailii.org/ie/cases/IECCA/2010/C80.html
Cite as: [2010] 4 IR 746, [2010] IECCA 80
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Judgment Title: D.P.P.-v- Michael Anthony Walsh Composition of Court: Fennelly J., Dunne J., Birmingham J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Refuse application for leave to appeal | ||||||||||
COURT OF CRIMINAL APPEAL 200/09 Dunne J. Bermingham J. PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS -v- MICHAEL ANTHONY WALSH Judgment of the Court of Criminal Appeal delivered the 21st day of July 2010 by Mr Justice Fennelly The applicant was convicted on four counts of indecent assault by a jury presided over by His Honour Judge White at Dundalk Circuit Court on 24th July 2009. The four offences were alleged to have been committed between 25th December 1980 and 20th June 1982. Before amendment the indictment covered a period up to 31st December 1982. The trial took place over three days in April 2009 which was some twenty seven to twenty nine years after the dates of the alleged offending. The complainant had first made complaint to the gardaí in about 1999. The complainant was born on 20th June 1969. He was thus aged between 11 and 13 during the period of the alleged offences. In evidence he fixed the dates of the alleged offences by reference to intervals between his birthdays. The applicant lived near the home of the complainant in Glenamaddy, County Galway. He was a schoolteacher, though not at the complainant’s school. The gist of the alleged offending was that the applicant befriended the complainant. He took him out for drives in his car. The complainant gave evidence that he would stop the car in various roadside places and interfere with him sexually. One offence was alleged to have been committed when the complainant stayed overnight with the applicant at a house in Castlebar. The complainant described some specific locations. More generally, he fixed times by reference to his birthdays, i.e., 20th June in the years when he reached the age of 11, 12 or 13. In one case, he specified a precise date. The evidence of the complainant was uncorroborated. The applicant denied the offences, though he exercised his right not to give evidence. The indictment, at the commencement of the trial, contained fourteen counts. The dates of the alleged offences varied between 25th December 1980 and 31st December 1982. The complainant gave evidence and was cross-examined. At the conclusion of the prosecution case, the learned trial judge intervened to suggest that it was his responsibility to marry the counts on the indictment with the evidence and that it would be necessary to amend the indictment. The judge said that he had noted a total of nine allegations from the complainant’s evidence. There followed a detailed discussion with counsel for the prosecution and the defence referring to the evidence that had been given and the terms of the counts on the indictment as they stood. Since the complainant had given evidence of only nine offences, clearly it was not possible to leave all fourteen counts to the jury. Counsel for the applicant opposed any amendment of the indictment, saying that the defence had approached the case on the basis of the indictment as it stood, adding that, in some instances, the prosecution was seeking to amend, based on evidence elicited in cross-examination. The learned trial judge ordered that the indictment be amended with the effect that four counts only were left to the jury. Each of these corresponded to a count in the pre-existing indictment but with some altered times and amended descriptions of locations. The learned judge referred to section 6(1) of the Criminal Justice (Administration) Act, 1924 as setting the parameters of his jurisdiction. He also cited a number of judicial authorities and textbook references. The learned trial judge duly charged the jury generally and in particular on the implications of the delay between the dates of the alleged offences and the trial. There were no requisitions, though a particular complaint has been raised in the form of an application for amendment of the grounds of appeal. It relates to the adequacy of the direction on the question of delay. The application for leave to appeal raises two points, namely:
Whether the direction to the jury on the issue of delay was adequate and appropriate. The first ground is a restatement of grounds already contained in the original notice of appeal. The second is raised only by way of an application for leave to amend the grounds of appeal as originally filed. First Ground of Appeal The jurisdiction to amend an indictment is provided by section 6(1) of the Criminal Justice (Administration) Act, 1924, which reads as follows:
The written submissions of the applicant refer to a number of English authorities on the meaning of the term “defective” in relation to an indictment: R. v Smith (1950) 34 Cr. Appellants. R 168; R. v Johal and Ram [1973] Q.B. 475; R. v Chuah [1991] Crim L.R.463; R v McVitie [1960] 2 Q.B. 483. At the hearing, it was submitted that the amendments should not have been made, as they were, at the close of the case for the prosecution, but at the end of the direct evidence of the complainant. That was the appropriate time, as it would afford the defence an opportunity to cross-examine on the basis of the final amended version of the indictment. The last of the cited cases, McVitie is not an authority on amendment of an indictment. It is, nonetheless, instructive. The indictment was admittedly defective in that it omitted the essential word “knowingly” in a count alleging possession of explosive substances. But the appellant admitted that, in fact, he had the requisite knowledge. There was no amendment. It was held on appeal that “no embarrassment or prejudice was caused to the appellant by the omission of the word “knowingly” from the particulars…” There was no miscarriage of justice and the court applied the proviso. In R. v Smith, Humphreys J, speaking for the appeal court, discussed the history and purpose of the equivalent English section (section 5 of the Indictments Act, 1915) and said:
In Johal and Ram, the original counts in the indictment were for joint charges of wounding with intent and unlawful wounding. After arraignment and before a jury was empanelled, leave was given to amend the indictment by the addition of four counts charging each defendant individually with each offence. On appeal, it was held that no rule of law precluded this course and that no injustice had been caused. In R. v Chuah, there was a count of obtaining services (a mortgage advance) by deception. Following a successful submission that a mortgage advance did not amount in law to the obtaining of services, the indictment was amended to charge obtaining property by deception, on which the defendant was convicted. On appeal, it was held that the amendment, though made at a late stage, caused no injustice as it deprived the defence only of a technical and unmeritorious argument. Professor Dermot Walsh in his authoritative work, Criminal Procedure (Thomson Round Hall, Dublin 2002) discusses some of these and other English cases. There does not appear to be any reported Irish authority, though the amendment jurisdiction is well-known and regularly exercised. Professor Walsh observes, at paragraph 15-54, that:
The learned trial judge also referred to a decision of the Court of Criminal Appeal in England, which is discussed by Professor Walsh, namely R. v Dossi (1918) 13 Cr. Appellants. Rep. 158. The jury returned with a verdict of not guilty of a charge of indecent assault on the date alleged in the indictment, 19th March, but added “if the indictment covers other dates guilty.” The trial judge then amended the indictment to read “on some day in March.” The jury brought in a verdict of guilty on the amended count. The Court of Appeal refused to quash the conviction. Atkin J made remarks which have a wider significance than the mere question of amendment, but concern the significance of dates of alleged commission of offences. He said:
Professor Walsh, however, comments on this case that “it is unlikely that a more substantial amendment would be permissible so late in the trial.” The Court is satisfied that section 6(1) of the Act of 1924 confers a broad discretionary power on the trial judge to amend the indictment. The purpose of any amendment must be to ensure that the jury will address the true issues when they come to deliberate on their verdict. The counts in the indictment should correspond as closely as is reasonably possible with the real case for the prosecution. The section requires such amendments to be made as “the court thinks necessary to meet the circumstances of the case…” The section sets no time limit to the exercise of this power. It may occur “at any stage of a trial…” It may well be that, in a particular case, a late amendment cannot be “made without injustice…” A court should not exercise the power in circumstances involving prejudice to the defendant in the defence of the charges against him. This is prejudice in the legal sense. It does not mean that an appropriate amendment should be refused merely because it would lessen the chance of an acquittal. The Court looks at the amendments made in this case in the light of the above principles. It considers each of the four counts accordingly. Count 1: This count alleged an indecent assault between 20th June 1981 and 20th June 1982, i.e. when, according to the complainant, he was between 12 and 13 years of age “on the road between Ballinasloe and Ahascragh.” It replaced Count 7 in the original indictment, where the dates were from 1st January 1982 and 31st December 1982 and the place was described as being “in the townland of Scotland, Glenamaddy.” The evidence was that this offence took place when the complainant was on the way back from helping with carpentry at the appellant’s brother’s house at Ballinasloe. He said that the appellant pulled off the road between Ballinasloe and Ahascragh on to a laneway that leads to a new forest or forestry plantation. Count 2: This count alleges an offence between 25th December 1980 and 20th June 1982 “in the townland of Clooncan West Glenamaddy…” It replaces count 8, where the dates were between 1st January 1982 and 31st December 1982 and the place “in the townland of Scotland, Glenamaddy.” The evidence of the complainant was that the offence took place after a fleadh ceol at Strokestown and at an area called Clooncon East, which is just outside Glenamaddy. He said that he was 12 years of age and it happened on Easter Sunday. The judge identified the place by reference to an ordnance survey map which was in evidence. Count 3: This count alleged an offence on a specific date, 15th February 1981 “at Shannagh Road in the townland of Scotland, Glenamaddy.” It replaces count 13 which alleged the same date and placed the offence at “Shannagh, Glenamaddy.” The evidence showed that Shannagh Road was in the townland of Scotland. The judge made the amendment as a “matter of good housekeeping.” Count 4: This count alleges an offence between 20th June 1981 and 20th June 1982 “at Carryduff, Castlebar in the County of Mayo. It replaced count 14, which alleged an offence at the same place but between 1st October 1981 and 31st January 1982. The complainant gave very specific evidence of being indecently assaulted by the appellant when he had gone to Castlebar with him to do work at the house of some relations of the appellant. They had stayed overnight, sharing a room, when the appellant got into the appellant’s bed and sexually assaulted him in a manner which he described in specific detail. The two versions of the indictment specify the same location, but vary the time. The evidence of the complainant was that this occurred when he was between the ages of 12 and 13. It is quite clear that the learned judge carefully framed each of these counts so as to make them correspond as closely as was reasonably possible with the evidence actually given by the complainant. He noted that the allegations made by the complainant had been very specific as to location, surrounding circumstances and as to the activity allegedly perpetrated by the appellant on the complainant. He thought them much more specific than in any trials he had presided over. He cited the decisions of the Supreme Court in DPP v E.F. (unreported 24th February 1994) and of the High Court in D.O’R v DPP (per Kelly J, unreported 27th February 1997). He thought that there could be no possible injustice to the appellant if he kept, as he did, to the outer parameters of time set out in the book of evidence. The appellant has not attempted to point to any particular injustice. He merely complains that the amendments should not have been made at the end of the prosecution case. It is easiest to commence with Count 3. It hardly differs at all from the first version. It specifies the same date and there is only the slightest difference in the description of the location, the amendment being made for “good housekeeping.” Count 4 alleges an offence at exactly the same place in Castlebar, as the original version. The dates cover the period between the complainant’s 12th and 13th birthdays. Thus they cover a year instead of four months. The appellant has not identified any prejudice arising from this change. The cross-examination of the complainant proceeded on the basis that there had been a trip to Castlebar. The complainant was cross-examined about the statements of other witnesses concerning the visit. Count 1 alleges an offence at a specified location by reference to an occasion when the complainant and the appellant had gone to and were on the way back from Ballinasloe. Count 2 replaces a number of counts all related to a single location, which is more exactly specified by reference to the evidence of the complainant. There is no variation of substance between the locations of the alleged offences. Counts 3 and 4 allege the same or virtually the same place. Count 1 specifies a road between Ballinasloe and Ahascragh by reference to a specified occasion of which the defence were fully on notice. As already stated, count 2 specifies a location more precisely. There is, in the view of the court, no merit in any suggestion of prejudice to the defence by reason of the amendment of the locations specified in the amended indictment. In fact, no actual prejudice has been identified. It is true that there is significant variation in the time-spans specified in counts 1, 2 and 4 as compared with the corresponding counts in the original indictment. There is none in the case of count 3. Where time-spans have been varied, this occurred in response to the evidence of the complainant who generally identified time periods by reference to periods between his birthdays. In count 1, the one-year period has been moved back by six months; in count 2, the original one-year period (the year 1982) has become eighteen months with the last six months overlapping; in count 4, a four month period has been broadened to one year which includes the original period. In any event, it has not been suggested that any of these time variations gave rise to any actual prejudice to the defence in meeting the case. At no point was any argument advanced to the effect that the dates were significant to the defence. No question of an alibi defence arose. It was not suggested to the complainant that he and the appellant were not acquainted or that they had not spent a lot of time in each other’s company. The sole basis of the defence, as put in cross-examination, was that the appellant had not committed any sexual or indecent assault on the complainant. The Court is satisfied that the trial judge was conscious of the potential for unfairness to the defence where an indictment is amended and of the need to ensure that there would be no injustice. He took account of the long delay in bringing the prosecution. In particular, he was firm in refusing to extend the outer parameters of the time covered by the amended indictment beyond that covered originally. In all these circumstances, the court is satisfied that the amendments were appropriate and that no prejudice to the defence arose from them. The court rejects this ground of appeal. The Delay Warning The trial took place in April 2009, some twenty seven to twenty nine years after the dates of the alleged offending. The first complaint was made to the gardaí in 1999, some seventeen years after the date of the last of the alleged offences. It was common case that the learned trial judge should give an appropriate direction to the jury concerning the consequences of such a delay or lapse of time on the fairness of the trial. Indeed, the learned trial judge raised this matter on his own initiative on the second day, saying that it would be obligatory for him to charge the jury on the issue. Counsel for the defence addressed the jury on the disadvantages encountered by the defence in defending the charges after such a long time. The learned trial judge first summarised the relevant chronology. He told the jury that the complainant had first made a complaint to An Garda Síochána on 6th September 1998 and that the applicant had first become aware of the allegations on 16th January 1999. He said that was the “first opportunity that [the applicant] had to deal with the allegations…” and that was when “the allegations were specifically put to” him. He pointed out that that was seventeen years from the last date on the indictment, 20th June 1982. He proceeded to give the jury the following direction:
Counsel for the appellant severely criticises this direction, claiming that it was inadequate. On the other hand the very experienced counsel who represented the accused at the trial made no complaint. He did not address any requisitions to the trial judge on this or on any other point. Nor was this point advanced in the original notice of appeal filed on behalf of the appellant. The appellant now seeks to amend his notice of appeal so as to introduce the following ground:
At the hearing of the appeal, counsel attempted to broaden even this ground of appeal by including a complaint that the judge failed to charge the jury about the fact that the complainant had delayed in making any complaint about the commission of the offences. In fact, the learned judge had drawn the attention of the jury, in the passage quoted at paragraph 34 above, to the delay of the complainant in making complaint and also in the context of a corroboration warning about the delay in making the complaints. Moreover, on this point also, there was no requisition to the trial judge. Finally, no attempt has been made to explain these failures. Counsel limited himself to a submission that the default of the trial judge was so fundamental to the fairness of the trial that the absence of a requisition should not prevent the court from considering the matter. Counsel for the respondent did not object to the proposed amendment to the notice of appeal. However, the court itself has an interest in the regularity of its own procedures. The decision of the Supreme Court in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329 is material. That was a murder trial. At his trial, the applicant had defended the charge on the basis that he did not have a gun and that he did not shoot the victim. In his application for leave to appeal to the Court of Criminal Appeal, it was submitted that the trial judge had erred in failing to charge the jury in relation to an alternative defence of accidental or mistaken discharge of the gun. This objection to the judge’s charge was not raised at the trial. This Court declined to hear the objection and was upheld by the Supreme Court. Kearns J, as he then was, delivering judgment for a unanimous Court at page 346 said:
“Without some such limitations, cases will continue to occur where a trawl of a judge's charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge's charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal Appeal, this court should abhor the practice and strongly discourage it.” This Court has, for many years, consistently discouraged the practice of making complaints about the fairness of a judge’s charge to the jury, when none was made at the trial. The fact that no objection is made may suggest that, in the context of the trial, there did not appear to be any reason to complain about the judge’s directions. The Court will usually seek an explanation for failure to complain at the relevant time. On the other hand, this is not an inflexible rule. The Court will not stand by and permit an injustice when there has been a clear and important defect in the trial, whether in the judge’s charge or otherwise. As Kearns J stated on behalf of this Court in DPP v Massoud [2009] IECCA 94, the Cronin case “is not to be taken as shutting the door to an appellant where an apprehension arises that a real injustice has occurred.” Counsel has cited the decision of this Court in People (Director of Public Prosecutions) v L.G. [2003] 2 I.R. 517, which concerned convictions for sexual offences allegedly committed some 27 years before the trial. Keane C.J., speaking for the Court, at page 528, said that:
A notable feature of the charge in that case was that the trial judge, while referring to delay, laid particular emphasis on the difficulties experienced by the complainants in coming to realise what had happened. The Chief Justice did not prescribe the terms of an appropriate warning, limiting himself to saying that it was "sufficient to say that on no view could the directions of the trial judge on the question of delay be regarded as adequate.” In People (Director of Public Prosecutions) v E.C. [2007] 2 I.R. 749, this Court quashed a conviction on a number of counts for sexual offences by reason of the failure of the trial judge to give any warning at all, although no requisition had been raised by counsel for the defence. Counsel advised this Court on that appeal that the omission had been due to inadvertence on his own part, a failure which this court described as “a most unfortunate omission by counsel…” The fact that the failure arose from inadvertence was accepted by counsel for the prosecution, who also agreed that he had an obligation and responsibility to the court and an obligation to alert the trial judge. The decision of this court was that:
The judgment in that case quoted extensively from a number of the earlier authorities. Counsel for the applicant submitted in this case that the approved formulation of an appropriate charge on the issue of delay was that of Haugh J, which was approved on appeal by this court in People(Director of Public Prosecutions) v R.B. [2003] IECCA 69 (unreported Court of Criminal Appeal, 12th February 2003.) This court is not satisfied that the charge given by Haugh J in that case has received a degree of approval to the extent that it has become the universally appropriate formulation in all cases The Court has merely identified it as a good example of an appropriate warning. It is quoted in extenso in the judgement of the court in DPP v E.C. It is not necessary to repeat it here. It certainly deals with delay and, in some detail, with the difficulties of cross-examination in old cases and, to that extent, it explains very cogently the principal practical difficulties which usually flow from a long delayed prosecution. At the same time, it lays particular emphasis on the difficulty of dealing with complaints which are expressed in vague or general terms or which lack precision and detail, a feature notably absent from the present case. While the Court is satisfied that the directions given by Haugh J represented appropriate guidance for the jury in the case before him, they would, like any judicial directions, need to be tailored to the circumstances of each individual case. The courts have not yet formulated a set of principles for the contents of an appropriate delay warning. This is not an appropriate case for the task, for the simple reason that, unlike the case of DPP v E.C., the judge did direct the jury on the issue of delay, without complaint of any sort from the defence. Defence counsel was fully alive to the issue and had himself addressed the jury about it. That case is, therefore, immediately distinguishable. Counsel for the applicant formulated his complaint essentially on the basis of the apparently ideal form of charge given by Haugh J. As already stated, that formulation laid heavy emphasis on the difficulties arising from lack of detail the vagueness or generality in the charges. As the learned trial judge made clear, that decidedly does not apply in this case. The allegations of the complainant are specific and detailed with regard to place and circumstances. The element of the vagueness arises only in respect of time, a matter dealt with earlier in this judgment. The most specific complaint regarding the charge related to the last sentence: “Delay can happen in sexual of cases involving minors, and it is a matter for you, the jury, to consider same in the context of the credibility of the evidence tendered by all the witnesses.” Counsel suggested that, if anything, this passage favoured the prosecution. This point appears to relate to the statement that delay can happen in such cases. But that is an uncontroversial proposition, which appears, in one form or another, in nearly all of the cases. It cannot be a ground of complaint. The court is unable to identify any basis for complaint about the rest of the sentence. It invites the jury to consider the issue of delay and to do so “in the context of the credibility of the evidence tendered by all the witnesses.” That is precisely the function of the delay warning. Moreover, the sentence must be read in the light of the passage which precedes it. The court does not propose to deal further with the complaint, raised, for the first time at the hearing, that the learned judge failed to direct the jury to the effect that the complainant had failed to make earlier complaint. His earliest complaint was made in 1998 to 1999. As already stated, the learned judge referred to this matter in his charge to the jury. No complaint was made about it at the trial, in the original notice of appeal or in the notice to amend the notice of appeal. For all these reasons the court will reject the application for leave to appeal. | ||||||||||