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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Director of Public Prosecutions & Anor -v- Burke & Anor [2014] IEHC 483 (17 October 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H483.html
Cite as: [2014] 2 IR 651, [2014] IEHC 483
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Judgment Title: Director of Public Prosecutions & Anor -v- Burke & Anor Neutral Citation: [2014] IEHC 483 High Court Record Number: 2013 2232 SS Date of Delivery: 17/10/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 483 THE HIGH COURT [2013 2232 SS] IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 BETWEEN DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA DAMIEN KELLY) PROSECUTOR AND
KARL BURKE AND MARK BURKE ACCUSED JUDGMENT of Ms. Justice Baker delivered on 17th day of October, 2014 1. Judge Murphy, then a judge of the District Court, by a case stated of 10th December, 2013, stated three questions for determination by this Court pursuant to s. 32 of the Courts (Supplemental Provisions) Act 1961. The questions arose in the context of a hearing, on diverse dates between 23rd April, 2013 and 4th September, 2013, of charges against the two accused persons relating to an alleged assault, attempt to assault, and production of a hammer with intent to intimidate or assault another person. The prosecution case is that the second accused, Mark Burke, confronted three identified persons over an alleged attempted theft the previous week of a motorcar. It is alleged that the first accused, Karl Burke, during the course of this confrontation assaulted one of these persons, and that the second accused retrieved a hammer from his van with which he threatened another one of those persons. 2. The first accused asserts he was not present at the locus of the alleged assault, and offered an alibi witness. The second accused admits that he was at the scene and confronted one of the three about an attempted theft, but that once the verbal confrontation occurred the persons immediately ran away. The second accused denies that he produced a hammer or even owned one of the descriptions given. 3. Evidence was given from two of the complainants and from nine other witnesses for the prosecution. At the end of the prosecution case, counsel for the accused sought a dismissal on the basis that there was insufficient evidence and this application was refused. 4. Both accused then went into evidence and called between them seven witnesses, the two accused and five other witnesses. 5. This consultative case stated arises from the evidence given by one of the witnesses called on behalf of the prosecution, Tara Burke, the wife of the second named accused and the sister in law of the other, who had given statements to the gardaí exculpatory of both accused persons which were tendered in evidence during the course of the trial by the prosecution. The prosecution did not directly put to Mrs. Burke a contradictory version of the evidence that she gave, nor was she discredited personally by the prosecution in the course of the trial. It was asserted by counsel for the accused that in the absence of an attempt to discredit Ms. Tara Burke personally, or to put to her a contradictory version of the substance of her evidence, that the trial judge could not as a matter of law be satisfied beyond a reasonable doubt of the guilt of each of the accused. 6. The trial judge has submitted certain questions to this Court by way of consultative case stated on the basis as she put it that she was “not certain in law that she was entitled to prefer the evidence of Mr. Grec and Messrs. Cassandro over that of Mrs. Tara Burke”. 7. The questions raised in the case stated are as follows:-
(ii) Am I entitled to prefer the evidence of the prosecution witnesses whose evidence was challenged by the accused, over the evidence of the prosecution witness whose evidence was uncontradicted by any party to the proceedings and whose evidence discloses an exculpatory, alternative version of events in circumstances where that witness (a)was/ is the spouse of one of the co-accused, (b) was called by the prosecution solely for the purposes of establishing that she had made a 999 call, (c) who was not examined on any other issue by the prosecution, (d) who had already furnished to the gardaí statements which were exculpatory of both of the two co-accused (copies of which were furnished to the court in evidence and which were included in the appendices hereto), and (e) who corroborated the contents of those statements under cross examination by counsel for each of the two co-accused, so that, although no application was made by the prosecution to treat the witness as a hostile witness, she was, in effect in the view of the court, a hostile witness. (iii) If so, am I entitled to convict on the basis that I prefer the evidence of Mr. Grec and Messrs. Cassandro notwithstanding that the uncontradicted prosecution evidence of Mrs. Burke discloses an exculpatory alternative version of events.” 8. At the hearing before me much of the argument of counsel for the two accused centred around the House of Lords judgment in the case of Browne v. Dunn [1893] 6 R 67. That case has been identified as the source of a principle, the precise status of which is a matter of some controversy and difficulty, as to the conduct of a trial and what must be put to a witness in cross-examination. It has variously been described as a rule of law, a rule of evidence, or possibly a rule of fairness such that a witness must not be discredited without having a chance to comment upon the dissenting evidence or answer the challenge in some way. 9. Counsel for the two accused characterised the question first posed by the District Judge in the case stated as whether the rule in Browne v. Dunn is part of Irish law and specifically part of Irish criminal law. Browne v. Dunn itself was a civil action but has been referred to and followed in criminal trials, although the case law would suggest that some degree of flexibility has been noted in its application. The consequence of failure to cross-examine is the central question, and accordingly the first question of the case stated is whether there is a rule of law that if a witness has not been cross-examined, the evidence of that witness must be accepted. It is also argued by counsel that the presumption of innocence and the requirement that a criminal case must be satisfied beyond reasonable doubt means that the exculpatory statement of Mrs. Burke which was not challenged must raise a reasonable doubt such that a conviction would be unsafe. 10. Counsel for the DPP suggests that the rule, if it be such, in Browne v. Dunn is directed at the situation where a party intends to contradict evidence in chief by a witness for the other side. He suggests that there are two purposes to the rule as follows:-
(b) It is also regarded as unfair to hide your case under the table and only reveal for the first time when the other side’s witnesses have already given their testimony. A witness should be given a chance to explain an apparent contradiction in their evidence. . 11. Browne v. Dunn itself was a defamation case reported in an obscure report. The headnote suggests the following ratio:-
13. But the judgment has become the locus classicus of rules relating to the conduct of a case. A judgment was given by Lord Herschell on the question of how the court was to treat evidence of witnesses who had not been cross-examined and he expressed the view it was not open to counsel to ask the jury to disbelieve the stories of the witnesses who had not been cross-examined. He expressed the following opinion which has been much quoted:
18. The rule has been followed in England and Wales in a number of cases, not always expressly by reference to Browne v. Dunn itself. A recent judgment of the Court of Appeal in R. v Fenlon [1980] 71 Cr. App. R. 307 involved three co-accused who were charged with rape. The appellant gave evidence and after his evidence, the trial judge informed the co-defendants that it was their duty to cross-examine the appellant in respect of matters where their evidence might diverge from his. This was one ground of appeal to the Court of Appeal where Lane J. in addressing the question whether the prosecution had to put its case to an appellant said the following:-
We can see no distinction in principle between the one situation and the other. The basis of the rule, as Lord Herschell pointed out, is to give a witness of whom it is going to be said or suggested that he was not telling the truth an opportunity of explaining and if necessary of advancing further facts in confirmation of the evidence which he has given. There seems to be no reason why there should be any different rule relating to defendants between themselves from that applying to the prosecution vis-à-vis the defendant or the defence vis-à-vis the prosecution. It is the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the witness in cross examination that he challenges his veracity and to give the witness an opportunity of replying. It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness, albeit he may be a co-defendant, that his evidence is not accepted and in what respects it is not accepted.” 20. Counsel for the first defendant has also identified the rule in the International Criminal Court established in respect of former Yugoslavia and the territory of Rwanda which included the following:-
Does Browne v. Dunn represent a rule? 23. I note, however, that the principles expressed in the case have been formulated in a number of ways, some of which are not relevant to the questions I am asked here. The case law and the academic commentary identify two aspects of the rule: the first concerns the status of evidence not put to a witness for the other party, and whether and how such evidence is admissible. A particular question with which practitioners will be familiar is whether the trial judge can, or should, remedy any frailty arising from the fact that evidence was not properly put, by having a witness recalled or making other orders or directions with regard to the weight to be attached to evidence not properly put at a time or in a manner sufficient to allow a relevant witness to comment. No such difficulty arose in the trial before the District Court and the trial judge asks me how to treat the evidence of Mrs. Burke, not how to treat evidence form a witness whose testimony was not put to Mrs. Burke. This raises the second aspect of the Browne v. Dunn judgment as it has evolved, namely how a court is to treat evidence which has not been challenged in cross-examination. 24. In simple, and perhaps uncontroversial, terms the judgment of the House of Lords is authority for the proposition that the means by which testimony may be challenged is by cross-examination. The proposition so stated must be uncontroversial if one recalls that one cornerstone of our legal system is that evidence is for the most part, save for clearly identified exceptions provided by statute, admissible if it is given or proven under oath, and that the person giving the testimony must be available for cross-examination as to the truth and accuracy of the evidence tendered. 25. In more general terms the principle is that there is a right inherent in the nature of evidence given in the trial process, which flows from the principle of fairness and the rule of law, that a party may test by cross-examination the evidence of a witness for the other party. Whether this right to cross-examine imports a duty to do so is a different matter entirely and lies at the root of the first question in this case stated. 26. McGrath in his text Evidence (Dublin, 2004) at p. 91 suggests, correctly in my view, that if a party intends to impeach the credibility of a witness, fairness requires that the matter impugned should be put to that witness. This is a correct statement of the requirement of fairness in the conduct of the case. Browne v. Dunn is to some extent authority on the requirement of fairness in the conduct of a trial, and Lord Halsbury made it clear in that case that it is unfair to the witnesses that their credibility be impugned when they do not get an opportunity to respond. 27. One could also say that a well run trial would involve the cross-examination of witnesses, as without cross-examination the court is unlikely to know if there is an alternative explanation or alternative versions of events which ought to be taken into account in assessing the evidence. Again this is not a rule of evidence but a rule of good practice. 28. In the English case of R. v. Harte [1932] 23 Cr App R 202, Hershell C.J. stated at p. 207:-
30. The prosecution is not entitled to challenge the credibility of Mrs. Burke’s evidence as the prosecution did not cross-examine or contest the evidence in the course of trial. However, the trial judge is entitled not to believe the evidence or to give a varying degree of weight to the evidence, but such entitlement arises from the fact that the trial judge is the trier of fact and not from any rule of law that requires or directs the trial judge to believe or not believe that witness. Browne v. Dunn in the criminal trail
33. I accept this general proposition and it seems to me that there is no rule of law that requires a party to enter upon cross-examination of a witness. If the evidence is not cross-examined, it seems to me the person choosing not to test the evidence is faced with an inevitable consequence, namely that the evidence is before the court in an untested form. The untested evidence may in due course be given more weight merely on account of the fact that it was untested. However, the evidence remains admissible even if it is not cross-examined, albeit a court might, and probably, will take the view that the weight of evidence lies with the uncontroverted evidence which was not tested. 34. Of course an accused can sit back too long as was explained by the Court in McPherson v Copeland, [1961] S.L.T 373,where the court explained the difficulty as follows:
The status of unchallenged evidence 36. In Chesapeake & Ry Company 283 US 209, the US Supreme Court reversed a jury verdict based on the jury’s rejection of a witness statement where:-
The role of this court in a consultative case stated 39. The real question before me is whether there is a rule of evidence or law which will guide the trial judge in her deliberations. What counsel for the two accused argue is that there exists such a rule in Browne v. Dunn, and that once they can point to the fact that a witness who gave exculpatory statements was not challenged on any part of her evidence which excuses the accused, that this fact alone, and without any requirement for the trial judge to weigh the evidence, must lead to an acquittal. I do not accept this contention and it has to be borne in mind that Mrs. Burke was one of eighteen witnesses in the case and the trial judge must consider all of the evidence before her and take her own judgment as to which version of events she believes, and whether there is a reasonable doubt in her mind. 40. I accept the argument by counsel for the DPP that the evidence of Mrs. Burke arose in the context of a lengthy trial where it was perfectly clear what case was being put by the prosecution, and several witnesses were called as to the incident, and the production of the hammer 41. The reason Mrs. Burke was called by the prosecution in this case is that her evidence was required to establish that she was the person who made the 999 call of which real evidence in the form of a recording was available and heard at trial. The State might have opted not to call Mrs. Burke at all but had they done this the 999 call could not have been adduced in evidence. The weight of evidence 43. A party may not seek to ask the judge or jury to disbelieve a piece of testimony if the person giving that testimony has not had an opportunity to comment or deal with the challenge. So stated it is a rule not so much to the conduct of a case but to the conduct of argument or submissions at the close of a case and arises from one of the cornerstones of the law of evidence, namely that testimony be given on oath and that a witness be made available for cross-examination on evidence tendered in examination-in-chief. However, there is no rule which precludes a trial judge, or in the case of a jury trial, the jury, from hearing or accepting the evidence, but rather a rule which prevents a party conducting a case for making an argument that the evidence should be disbelieved as a matter of law. The commentary in the Criminal Law Review to the case of O’Connell v. Adams (1973) Crim LR 113 suggests the following rational:-
45. Accordingly, it seems to me that in part the answer to the first question raised in the case stated as to whether the trial judge was entitled to prefer the tested evidence over the untested evidence has to be answered as follows: evidence which is not tested is admissible and the fact that it is not tested gives it greater weight. Whether that evidence is to be preferred is a matter for the trial judge and it is not for me to direct the trial judge how to consider the evidence. The judge may accept the evidence albeit that it was not challenged and there is no rule that directs the trial judge to reject that evidence. The evidence is before the court and must be weighed by the court in the light of the entire case and in deciding whether there is a reasonable doubt, but the evidence of Mrs. Burke is not determinative. 46. It is not a matter for me to direct what weight is to be given to any witness or any piece of evidence from such witness. The question before me is confined to the question of the treatment that must be given to evidence of Mrs. Burke. The trial judge is entitled to prefer whichever evidence she in her discretion and in the exercise of her judgement believes to be correct bearing in mind the burden of proof, the criminal standard of proof and the fact that the presumption of innocence means that the accused must be acquitted if he or she raises a reasonable doubt. The evidence of Mrs. Burke is uncontroverted, but this of itself may not be determinative of the innocence of the accused. It is important evidence and cannot be ignored but I have no role in directing the trial judge to treat this evidence as conclusive or determinative of the facts before her. 47. Counsel for the accused and particularly the first accused suggests that the trial judge is not entitled to convict where an exculpatory version of events remains unchallenged. This, it seems to me, is not a true proposition of law. The trial judge is entitled to convict even when an exculpatory version of events is before the court but only if the court holds that such exculpatory version of events does not raise a reasonable doubt. Whether a particular piece of evidence, bearing in mind the relevant weight that it must be given, raises a reasonable doubt is a matter for the trial judge. The Application of Browne v. Dunn to the first question 49. Counsel for the first defendant submits that the trial judge cannot “simply disregard” the evidence of Mrs. Burke on the speculative basis as argued by the Director of Public Prosecutions that her evidence is tainted by her relationship with the second defendant. I accept that this is a correct proposition, and that the trial judge may not disregard or discount the evidence of Mrs. Burke entirely. The trial judge may disbelieve the evidence or prefer the evidence of other witnesses, but she may not disregard it, and she must ask herself whether that evidence does raise a reasonable doubt. In so doing, she must treat this evidence as uncontested but she must consider all of the evidence and test the evidence in the light of the standard and burden of proof. The duty of the trier of fact
Conclusion on the first question
(b) Ipso facto a person who does not cross-examine evidence is faced with the prospect that the evidence is heard by the trial judge or the jury and is untested. (c) There is no requirement that evidence be cross-examined, but by not cross-examining evidence the evidence goes to the fact finder as untested and uncontradicted evidence. (d) Untested and uncontradicted evidence carries greater weight than tested contradictory evidence. (e) It is not the function of any rule of law to direct the court to accept evidence merely on account of the fact that it has not been tested. The court must hear all of the evidence before it and is entitled to weigh the evidence, including unchallenged evidence, against the evidence as a whole adduced at the trial. (f) A trial judge or a jury is not compelled as a matter of law to accept evidence because it is not challenged. Unchallenged evidence is part of the evidence at trial and the fact that it is unchallenged gives it somewhat greater weight, but does not direct a particular result. 53. At common law, a party may not cross-examine or attack the credibility of his own witness. This is subject to the rule in Attorney General v. Taylor [1974] I.R. 97 which sets out the basis on which such cross-examination may be allowed. A party wishing to cross-examine a witness called by him must apply to the trial judge to have that witness declared or treated as a hostile witness. Walsh J. explained the procedure as follows:-
55. A witness does not become a hostile witness merely by giving evidence which is different from evidence given previously or statements made previously by that witness, or by giving evidence contrary to the position proffered by the party calling that witness. The mere fact that Mrs. Burke was the spouse of the second accused does not make her a hostile witness as such. No application was made to the trial judge to have Mrs. Burke treated as a hostile witness and accordingly she was not a hostile witness in the sense in which this term is properly used in the law of evidence. Indeed Mrs. Burke was not in any sense hostile in the sense in which that term is properly used, and she in fact gave evidence which was consistent with her previous statements. 56. Any application to make Mrs. Burke or have her treated as a hostile witness would have been bound to fail and Counsel for the DPP acknowledges that no formal application was made to make Mrs. Burke a hostile witness and he accepts that as she did not make any statement which contradicted a previous statement, the prosecution could not have succeeded in such an application. 57. The trial judge asks this Court whether the court was entitled to in effect treat Mrs. Burke as a hostile witness, notwithstanding that no application was made to treat her as a hostile witness. In the light of the clear statement in recent judgment of Birmingham J. in Power v. Doyle, I can answer the second question in the negative, there being in law no possible characterisation of a witness as in effect hostile and as to call a person a hostile witness is to use a term of art. As the law does not recognise an informal means by which a witness may be treated as hostile, the trial judge is not entitled to prefer the evidence of some of the witnesses over other evidence if in doing so she is in effect treating Mrs. Burke as a hostile witness. 58. There are several other elements in the second question which I will attempt to answer. It is not competent for the court to treat Mrs. Burke as in effect a hostile witness. Mrs. Burke was not a hostile witness. The second question may be answered to some extent by the answer to the first but if the second question asks this Court whether the trial judge is obliged to prefer the tested evidence against the untested, the answer is no. As to whether the trial judge is entitled to prefer one piece of evidence against another it seems to me that the trial judge is entitled in her absolute function as finder of fact to prefer one piece of evidence against another, bearing in mind at all times the burden of proof and in particular that the standard of proof is on the criminal scale 59. The court is entitled to take into account that Mrs. Burke was the spouse of one of the co-accused, and the purpose for which she was called namely to prove the 999 call. The fact remains that the prosecution called this witness and is bound by her evidence unless it was tested by them. The court is entitled to take into account that the evidence of Mrs. Burke was not “examined on any other issue by the prosecution”, but it seems to me that this part of the question is the same as question one. The court is also entitled to take into account that there was in evidence exculpatory statements furnished by Mrs. Burke to the gardaí which were adduced in evidence. The court is also entitled to take into account that Mrs. Burke corroborated the contents of those statements in the course of evidence taken under cross-examination by counsel of each of the co-accused. The Third Question Summary
(b) No. Ms Burke was not a hostile witness. The other matters raised go to the weight of evidence. (c) Does not arise |