Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 43
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Judgment Title: Director of Public Prosecutions -v- Flanagan & anor Neutral Citation: [2014] IECCA 43 Court of Criminal Appeal Record Number: 223 & 224/11 Date of Delivery: 24/11/2014 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Moriarty J., Herbert J. Judgment by: MacMenamin J. Status of Judgment: Approved
Notes on Memo: Allow appeal against conviction | ||||||||||||
COURT OF CRIMINAL APPEAL [CCA No. 223 & 224/2011]
MacMenamin J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS Prosecutor/Respondent AND EAMON FLANAGAN AND SEAMUS FLANAGAN Accused/Applicants
Judgment of the Court of Criminal Appeal delivered by Mr. Justice John MacMenamin on the 24th day of November, 2014
1. At the conclusion of the appeal, this Court quashed the applicants’ convictions and noted that counsel for the Director of Public Prosecutions had indicated that there would be no application for a retrial. The Court now gives its reasons for its order. 2. The first-named applicant was tried at the Central Criminal Court on one count of rape, contrary to common law as provided for by s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990. The second named applicant was, at the same time, tried on one count of rape contrary to s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990; and also one count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990. The two applicants, who are brothers, were tried jointly over six days in May, 2011. Both applicants were convicted of the charges against them by a majority of 10 to 2 and sentenced to four years imprisonment. But as a result of the events described in this judgment, the applicants were admitted to bail by a different panel of this Court soon after their conviction. The Circumstances 4. Daniel Lynch engaged in conversation with C.M. It appears that all the parties had consumed a great deal of alcohol. After a time, Daniel Lynch and C.M decided to leave the company of their friends, and go to the bedroom which. Seamus Flanagan, the second applicant, had booked earlier. C.M and Daniel Lynch presented themselves at the reception desk to get a key to the room. They were told that the room had not been paid for. As Daniel Lynch had no money, he tried unsuccessfully to contact the applicants by mobile phone. However, the complainant, C.M., decided to pay for the room and did so. She was provided with a key card. Both parties then retired to Room 233, and engaged in consensual sexual activity, including vaginal and anal intercourse, and oral sex. 5. What happened afterwards lies at the centre of this appeal. Absent corroboration as to what happened in the hotel room, the prosecution case substantially consisted of the word of one person against that of two others. This is to be seen in light of the fact that what is alleged to have occurred, took place within a space of 90 seconds, in a time window, established by CCTV evidence, of at most 4½ minutes, or perhaps very significantly less than that time span, in a hotel room adjoining other hotel rooms. C.M.’s Evidence 7. The complainant’s evidence was that, after Daniel Lynch left, the second-named applicant, Seamus Flanagan, raped her vaginally for less than one minute, and then anally for a matter of seconds. She testified that Eamon Flanagan, the first named applicant, then raped her vaginally for a very short period of time. Inconsistencies in the Complainant’s Evidence 9. During the trial, the complainant conceded on cross-examination that she had told the gardaí that she and Daniel Lynch both awaited room service in the bedroom having had consensual sex. In two statements given to the gardaí during the investigation, however, she said that when the knock came on the door it was she herself who answered it, that both applicants were at the door, and that Daniel Lynch was, at the time, still in the bedroom. However, by contrast to this statement, she, in fact, told the jury in her evidence that it was Daniel Lynch, and not she, who had answered the bedroom door. C.M. also conceded that, subsequently, she told a friend, H.B., who was one of the party downstairs, that it was she herself who answered the door. The complainant also gave a series of differing accounts as to whether Daniel Lynch was in the room, or had left to get the drinks. In one interview the complainant placed Daniel Lynch outside the room, and on his way to get the drinks, when the knock on the door occurred. In this account, given to the gardaí during the investigation, she said that both applicants had anally raped her, although afterwards, in fact, she testified that only one of the applicants, Seamus Flanagan, had committed that crime. 10. Again, by contrast to the accounts given to other investigating gardaí during the investigation, C.M. told a Garda Withero, that it was Daniel Lynch who opened the door and let the applicants in the room. However, the complainant also apparently informed a doctor who examined her in the Rotunda Hospital the day after the events that it was she herself who answered the door. On another account, the complainant said that, when the knock on the door came, she was actually in the act of performing oral sex with Daniel Lynch, and when the knock on the door came, both she and Daniel Lynch got up to answer the door, having fixed themselves up. She informed her friend, Ms. B, who she met afterwards, that, by the time the knock on the door came, Daniel Lynch had already gone to get the drinks. Daniel Lynch’s Evidence 12. Daniel Lynch’s testimony at the trial was to the effect that, having had consensual sex, he told C.M. that he was leaving. He was unaware that she had ordered drinks, as he had, in fact, left the bedroom and gone to the bathroom. His evidence was that, having had sexual relations, he went to the toilet and that C.M. kept asking him to stay. His testimony was that at that stage he simply left the room, and encountered the applicants as he went out the door and they entered the room. He denied being aware that C.M. had telephoned room service and ordered the drinks. He said that as he left the room C.M. was right behind him at the door. There was no information or evidence to the jury as to the precise circumstances in which Daniel Lynch came to give his statements to the gardaí, or of his previous encounters with the gardaí, or the contents of any statements which the gardaí allegedly made to him in order to induce him to make his evidence clearer or to place the applicants either at the door of the hotel room or inside the room itself. Other Areas of Conflicting Evidence 14. The very existence of these inconsistencies indicate that the prosecution evidence hinged, to a very great degree, on the availability of credible corroborative evidence, other than CCTV evidence to which reference is made later in this judgment. The Absence of Any Forensic Evidence Inculpating the Applicants CCTV Evidence Evidence of Recent Complaint 18. On the basis of the evidence which had been adduced, including Daniel Lynch’s apparently credible evidence, the trial judge declined to grant a direction holding there was sufficient evidence to go to a jury. The centrality of Daniel Lynch’s evidence can be gleaned from the fact that it was referred to in some detail by counsel for the prosecution in his closing speech. The jury deliberated for some hours before convicting the applicants by a majority of 10:2. The case was then adjourned for sentence until the 27th June, 2011. Events Between the Conviction and Sentencing A Central Issue 21. Daniel Lynch’s account to this Court, in his oral evidence, was that the garda investigation team arranged to meet him at Downey’s Garage, Dublin Road, Portlaoise, on the 30th April, 2008. Superintendent Dennehy interviewed him for the purposes of the internal investigation. Daniel Lynch informed the Superintendent that, when he met the investigating team at Downey’s Garage, he had been threatened and pressurised, and that Detective Garda Marron and Detective Sergeant Declan Dunne sought to induce him to place the applicants in the corridor immediately outside the door of Room 233. Daniel Lynch is recorded as saying to Detective Superintendent Dennehy “Did I say I met them at the door in the first place, no. I said I met them down from the door. Keith Marron put them at the door. I told Keith Marron that I had doubts if I ever met them, which he should have written down”. Daniel Lynch said that Detective Sergeant Dunne proffered a notebook to him at Downey’s Garage where the Detective Sergeant made a note as follows:
22. It is important to bear in mind that Daniel Lynch’s description of what transpired at Downey’s Garage was described by Detective Sergeant Dunne as having been, simply, "a lie". The Evidence at the Appeal
i. I say that I gave an initial statement at Newbridge Garda Station to the investigating detectives in which I gave a summary account of my recollections of my movements on the night of the date of the alleged offences which is the subject matter of the above prosecution. ii. I was subsequently contacted by Detective Keith Marron of Clondalkin Garda Station and was asked to meet Detective Marron and a colleague in Portlaoise for the purpose of clarification of the first statement, for further questioning and making of a second statement. iii. As requested by Detective Marron, I subsequently met him and a colleague in the forecourt of Downey’s Auto Stop, Dublin Road, Portlaoise, Co. Laois. iv. I confirm that Detective Marron told me at this meeting to sit in the rear of his vehicle and I was placed under considerable emotional and psychological stress to make certain statements in my proposed second statement. In particular, Detective Marron and his colleague indicated to me that I would be imprisoned for at least 7 years if I did not clarify matters to their satisfaction. I was accused at this meeting of attempting to cover up for my friends, being the defendants herein. v. In particular, I was concerned to express my doubt due to a high level of intoxication on the day/night of the alleged offences, in an amended statement regarding my reference in my earlier statement to meeting the defendants in this matter during the period subsequent to my departure from their company at the nightclub/function room of The Red Cow Inn, Rathcoole, Co. Dublin, and my ultimate departure from the hotel/accommodation area of the same hotel later that evening. vi. I say therefore that my indications in my two statements that I definitely met the two accused in the hotel/accommodation portion of the Red Cow Hotel is incorrect, and I feel that I was unfairly pressurised not to express the doubt which I had in that regard by Detective Marron and his colleague in my statements. I appreciate that I could have expressed this doubt at the hearing of the trial, but I felt compounded to follow verbatim the contents of my statement due to the circumstances in which I had made them. I wish to express my regret at my failure to correct the contents of my statements at the trial of these matters, but I wish to do so now fully appreciating the possible implications for myself. In this regard I wish to express my apologies to the court. I also wish to reaffirm the contents of this affidavit, as set out above, as of the date of swearing hereof …” 24. Detective Garda Keith Marron swore an affidavit for the appeal. He denied absolutely he, or any garda, had suggested the meeting at Downey’s Garage. He swore that Inspector Declan Dunne and himself met Daniel Lynch by arrangement, and at his suggestion, on the 30th April, 2008, at Downey’s Garage. Detective Garda Marron swore:
I say that during the taking of the second statement on the 30th April, 2008, [Daniel Lynch] made further comments which he did not wish to have included in his written statement. These comments were noted in writing by Inspector Declan Dunne and were signed by [Daniel Lynch].”
I say and believe that I did not threaten, induce or trick [Daniel Lynch] in any way. I would further say that I never threatened [Daniel Lynch] with a seven year sentence.” Inspector Dunne swore an affidavit on the 3rd June, 2014 to a similar effect. However, he added that he also met Daniel Lynch on the 13th May, 2008 at Athy Garda Station by arrangement for the purpose of taking a blood sample from him. This sample was given voluntarily, and Daniel Lynch had expressed no doubt to him then or afterwards about what his evidence would be. 25. In this appeal, Daniel Lynch admitted in cross-examination on his affidavit, that, on the evening, he had had a lot of drink, perhaps 10 to 12 pints. He accepted that his ability to recollect events was effected by the consumption of alcohol. At first, he did not admit having taken any other form of intoxicant or drugs on the night in question. However, later in his testimony, he admitted that he had been self-medicating with un-prescribed anti-depressants at the time. These had been obtained from a friend. He said the events on the evening in question were the culmination of a period of some 48 hours, when he had been consistently drinking a great deal of alcohol. He sought to account for having made statements to An Garda Síochána on the 4th March, 2008 by saying that his recollection was clouded and that he had had a lot of drink taken. He accepted that he had a “conscience that activated sometimes and then hardened at another time”. He asserted that the garda statement that it was he, who decided to meet in the petrol station in Portlaoise, as being “lies”. 26. It also emerged, for the first time, that Daniel Lynch had himself been tried and convicted on the 11th, 12th and 13th November, 2009 arising from a fatal accident which befell an employee of his in construction work. He was sentenced on one of the counts to 3 months imprisonment, suspended for two years on entering into a bond to keep the peace and be of good behaviour. 27. Daniel Lynch was asked why he had claimed that the gardaí had made a threat of a seven year prison sentence. In response he told this Court the gardaí had frightened him and that he was told that rape was a serious offence. He formed the impression that he might be charged with the offence, and that in order to threaten him the gardaí were levelling the possibility of his being also charged with rape to. He testified that at Downey’s Garage the two gardaí had produced a bag containing a tube of lubricant used for sexual activity. The gardaí denied they had done this. Daniel Lynch testified that their denial was “pure utter lies”. It should be said, however, that one of the gardaí, Detective Garda Marron, later accepted in evidence that the lubricant might have been produced so as to ascertain whether it was Daniel Lynch’s or not. Mr. Lynch’s testimony before this Court was that he had never seen the tube before, but he confirmed he owned a cigarette lighter which he said was also produced to him. He was unable to recollect whether the gardaí had produced a cigarette carton or not. In essence, his testimony was that he had given the evidence in the way he did because he felt that it was “what he had to do”. 28. He was specifically asked in the appeal:
A. Yes. Q. Is that correct? A. Yes, that's correct.” 30. The Court also had the opportunity of assessing the credibility, both of Detective Garda Marron and Detective Sergeant (now Inspector) Dunne. Both were credible witnesses. 31. Counsel for the Director did not concede the circumstances were such as to render the conviction unsafe. This stance was strongly influenced by the fact that Daniel Lynch’s testimony on the applicants’ location went unchallenged at the trial. Counsel for the Director of Public Prosecutions stressed to this Court, as he had in his closing speech to the jury, that counsel for the applicants at the trial had not contested that Daniel Lynch had met the two applicants going in to the room. Defence counsel did, indeed, say that the applicants had no recollection of this, and insofar as the complainant may have been in the room and left, did not recall that being so. Defence counsel added that, if something had happened, the applicants had no reason or cause to recall it. The first time the applicants had been asked to recall anything at the end of a long period of drinking was at 1 o’clock in the morning, when awoken from sleep by the gardai. 32. Considered in context, the Court is of the view that these remarks by defence counsel were not an acceptance that what Daniel Lynch said at the trial was true, but rather that the applicants had no recollection of the event which Daniel Lynch now says was incorrectly portrayed. 33. For the reasons now outlined, this Court was left to conclude that the conviction which had taken place was an unsafe one. The Law 35. Section 33 of the Court of Justice Act, 1924 allows fresh evidence to be introduced on appeal. Section 3(3)(a) of the Criminal Procedure Act, 1993 provides that, when hearing an appeal, the court may “where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced”. 36. As is the case with the Supreme Court in civil matters, this Court leans against the admission of such evidence. Such fresh evidence can only be justified by special circumstances. Evidence will not be admitted if it was available at the trial but an applicant deliberately refrained from using it (Attorney General v. McGahan [1927] 1 I.R. 503; People (DPP) v. McDonagh (CCA, Unreported, 22nd May, 2000); People (DPP) v. Barr (Ex tempore, 2nd March, 1992); People (DPP) v. Flynn (Court of Criminal Appeal, Unreported, 9th December, 2002). In general, new evidence will not be admitted for the purpose of allowing the applicant to make a new case, or a case inconsistent with that made at trial (Attorney General v. McGahan [1927] 1 I.R. 503; People (DPP) v. Lee [2004] 4 IR 166; People (DPP) v. Gamble [2009] IECCA 19). In order to justify the admission of new evidence, it will generally be necessary to explain why competent lawyers at the trial did not raise a point sought to be raised in the appeal. In general, the Court should have available to it evidence from the relevant participants, explaining why the evidence was not adduced at trial. A court will exercise special care in circumstances where, simply, a prosecution witness, retrospectively, and after the trial, thinks himself to have given unreliable evidence, or wishes to so portray himself. Similarities to DPP v. Redmond [2004] ECCA Admission of New Evidence 38. The principles governing the admission of new evidence are identified by of the Supreme Court in People (DPP) v. O’Regan [2007] 3 IR 805, at 826 which referred to the previous judgment of The People (DPP) v. Willoughby [2005] IECCA 4 (The Willoughby Principles). In O’Regan, the Supreme Court pronounced:
(2) 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 acquired at the time of the trial. (3) It must be evidence which is credible and which might have a material and important influence on the result of the case. (4) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.” 40. While the requirement for “exceptional circumstances” may be seen as setting the bar at a fairly high level, the policy considerations which arise in such instances 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. An appeal court must be acutely alive to the possibility of a post-trial manipulation of a prosecution witness. As Kearns J. pointed out on behalf of the Supreme Court in DPP v. O’Regan:
41. There is no evidence that Daniel Lynch was manipulated by the applicants or anyone else. The instant case has a number of other very singular, “exceptional” features. The prosecution case hinged, very significantly indeed, on Daniel Lynch’s corroboration evidence. The complainant’s own evidence contained a number of inconsistencies. Daniel Lynch’s evidence purporting to place the two applicants, very near, or actually in Room 233, was not contested at the trial. The defence case, as put by counsel at the trial, was that even if the applicants and complainant met, no sexual contact took place. However, the omission to contest the point of the alleged encounter at the door, which would normally be a matter of importance, is now to be seen in the context of Daniel Lynch’s affidavit produced at the trial, but after conviction, and in light of the entirety of his evidence before this Court. It is clear that he does not stand over the testimony which he gave at the trial. It is clear, indeed “credible”, that the circumstances of the taking of crucial evidence from Daniel Lynch at Downey’s Garage could, in the light of the information which has emerged since, have been the subject of a serious challenge at the trial; had that information been available to the defence. The new information takes a number of forms: first, there is Daniel Lynch’s repudiation of his own evidence; then, the additional information concerning the circumstances of his interaction with members of An Garda Síochána; there is also, the relevant additional material regarding the extent of his inebriation on the night, his self-medication, and his stated fear derived from what he claims was said by the gardai, to the effect that he might be “in the frame” for a seven year sentence. This is, therefore, not only a case which involves a sworn affidavit from a prosecution witness controverting evidence which he gave at the trial, but also one where new and relevant material evidence has emerged which could not reasonably have been known or procured by the accused or their counsel. 42. The Court must have regard to other consequences which flow from Mr. Lynch’s evidence. As a consequence of his raising these issues, a garda investigation followed. The two members of An Garda Síochána identified earlier had their conduct questioned by a Garda Superintendent. They have been exonerated from misconduct. There is no indication that there was any want of due diligence in preparing the defence of this case. Daniel Lynch’s evidence went essentially unchallenged in a number of areas, something that inevitably would not have occurred, had the defence team, then retained, been apprised of the material which is now available. It is now very clear, that the trial and conviction, through no fault of either counsel for the prosecution or counsel for the defence, or the trial judge, was unsatisfactory and unsafe. The Range of Orders Which Might be Made 44. For the reasons outlined above, therefore, the Court was convinced that the conviction which resulted in this appeal was, in fact, unsafe. The resultant order has already been made. | ||||||||||||