High Court of Ireland Decisions
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Cite as: [2015] IEHC 25
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Judgment
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Neutral Citation: [2015] IEHC 25 THE HIGH COURT JUDICIAL REVIEW IN THE MATTER OF SECTION 5 OF THE SUMMARY JURISDICTION ACT 1857 [Record No. 2013/929 J.R.] BETWEEN/ A. C. Applicant AND
JUDGE EAMON O’BRIEN AND THE DIRECTOR OF PUBLIC PROSECUTION Respondents JUDGMENT of Ms Justice Iseult O'Malley delivered the 21st day of January 2015. Introduction 2. The central issue in the case concerns the fact that the applicant gave evidence on his own behalf, denied his guilt of the offences charged and was not cross-examined by the prosecution. Having heard submissions as to whether the court was therefore bound to accept the applicant’s evidence, the first respondent adjourned the matter for consideration. He held against the applicant on the issue. After convicting the applicant, he refused to sign an appeal by way of case stated as to whether he had been correct in so doing, holding that the law on the issue was clear and that the request to state a case was frivolous. Background facts 4. The trial took place on the 11th April, 2013, before the first respondent. It is not clear to this court why there was a delay of such magnitude in the processing of charges against a person of his age. 5. For the prosecution, evidence was given by Garda Maurice Mahon that he received a report that a burglary was in progress at a named address. He made his way there, and said that he was in a position to recognise both of the perpetrators of the burglary. He gave evidence that the applicant attempted to hit him in an effort to make good his escape. Nobody was arrested at the scene of the crime and there was no forensic evidence. The recognition evidence given by Garda Mahon was, therefore, the only evidence that implicated the applicant in the offences. 6. The applicant was arrested on the 3rd November, 2011, and detained pursuant to s.4 of the Criminal Justice Act 1984. He was interviewed on two occasions and the memoranda of the interview were adduced in evidence. During the interviews, the applicant answered every question and consistently denied being anywhere near the locus of the burglary, insisting that at the time of the offence (approx 02:45 on the 22nd October, 2011) he was at home in bed. 7. At the close of the prosecution case, an application for a direction of no case to answer was made on behalf of the applicant. This was refused by the learned trial judge. 8. The applicant gave evidence. He was asked one question in chief - whether he had “hand, act or part” in the offences described by the prosecution. He denied any involvement. He was then invited to answer all questions put to him in cross-examination. No questions were put. 9. At this point a further application was made on behalf of the defendant. This application was to the effect that the failure of the prosecution to put any question to the defendant left his evidence uncontroverted and hence it had to be accepted. Reliance was placed on the case of Browne v Dunn [1894] 6 R. 67 in support of the application. There was no application on behalf of the second respondent to recall the applicant for cross-examination. 10. The first named respondent directed that written submissions be prepared on the issue and the matter was adjourned to the 9th May, 2013 for further argument. 11. In submissions on behalf of the applicant, reliance was again placed on the judgments in Browne v Dunn [1894] 6 R. 67. This was a civil defamation action in which the witnesses called by the defendant were not cross-examined by the plaintiff. The applicant cited the following passage from the judgment of Lord Herschell LC:
…it would be a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that… [the evidence was true]. …If [counsel] admits before the jury - as I say, by the absence of cross-examination, he does admit - that these statements are true, what is there for the jury?”
17. Without prejudice to this argument, it was noted that the judgments in Browne v Dunn [1894] 6 R. 67 referred to two situations where the rule did not apply. Lord Herschell said that there were cases in which notice of the intention to impeach the credibility of a witness
20. The first named respondent gave his decision on the 11th July, 2013. He rejected the arguments put forward on behalf of the applicant, citing the case of Flanagan v Fahy [1918] 2 I.R. 361 and an article published in the Bar Review in 2006 entitled “Putting the case against the Rule in Browne v Dunn” by Hugh Kennedy BL. He also referred to a note in Phipson on Evidence suggesting that the rule might not apply in Ireland. In rejecting the application, the first named respondent held that the rule in Browne v Dunn did not apply. He then heard closing submissions and proceeded to convict the applicant. 21. Sentencing was dealt with on the 16th October, 2013 when the applicant was sentenced to nine months detention, suspended for two years. Following the conviction, the applicant applied to the first named respondent to state a case to the High Court pursuant to the provisions of section 2 of the Summary Jurisdiction (Ireland) Act 1857. The respondent expressed the view that the law was clear, refused the application and signed a certificate of refusal to state a case pursuant to section 4 of the Summary Jurisdiction (Ireland) Act 1857 indicating that he considered the application to be “frivolous”. He added to the certificate the words “In that the law is well settled”. 22. Leave to seek judicial review was granted on the 11th November, 2013. In summary, the applicant claimed in his statement of grounds that since there was no reported decision on the correct application of the rule in this jurisdiction and since the rule had been applied in “many other cases,” the first named respondent erred in law in ruling that the issue was frivolous and erred in law in refusing to sign the case stated. The applicant further claimed that, in so refusing, the first named respondent “breached the applicant’s right to natural and constitutional justice and strayed beyond jurisdiction”. 23. The second named respondent has opposed the application. It is maintained that the determination of the first named respondent, that the proposed case stated was frivolous, was reasonable and within his jurisdiction. He had convicted the applicant on the basis of the evidence and it was not open to the latter to use the case stated procedure to challenge that. 24. It was argued that there was no factual or legal basis for the application of the rule contended for by the applicant. The rule, even if it applies in Ireland to the same extent as in the United Kingdom (which was denied by this respondent) would not have precluded the first named respondent from convicting the applicant. 25. The respondent has also raised an argument as to the propriety of judicial review as a remedy having regard to the provisions of s.5 of the Summary Jurisdiction (Ireland) Act, 1857. The Summary Jurisdiction Act, 1857 27. Section 5 of the 1857 Act provides that, in the case of refusal, the appellant may apply to the High Court
29. The power of the High Court to form its own view whether or not an application was “merely frivolous” was established in the case of State (Turley) v Ó Floinn [1968] 1 IR 245. The applicant had been convicted of using a premises for public dancing without the requisite licence. The President of the District Court refused to state a case on the ground that his decision was based entirely on the facts. On an application under s.5, O’Keefe P. held that there were at least five “real questions of law”. In relation to the operation of s.5, he said as follows:
…A decision that it is frivolous may be on the ground that no question of law arose or, that if a question of law did arise, it would, depending on the circumstances, be a pointless waste of time to grant the request for a case stated.”
The decision in DPP v Burke [2014] IEHC 483 36. Briefly, the controversy in the case arose from the fact that the prosecution called a witness for the purpose of proving one particular matter but who went on to give evidence exculpatory of the accused. She was not a hostile witness in the legal sense, since the exculpatory material was contained in the statement she had given to the Gardaí. No application was made to treat her as hostile and therefore, obviously, she could not be cross-examined or otherwise impugned by the prosecution. In a consultative case stated, the District Judge asked whether she was entitled to prefer the evidence of other prosecution witnesses as against the unchallenged evidence of this witness. 37. The arguments in the High Court appear to have centred both on the content of the rule claimed to have been established in Browne v Dunn [1894] 6 R. 67 and on its status as an authority in Irish law. The uncertainty on the latter issue arose from the Irish case of Flanagan v Fahy [1918] 2 I.R. 361 and in particular part of the judgment of Ronan L.J. 38. Flanagan v Fahy [1918] 2 I.R. 361 was an action to establish a will, where the defendants contended that the will was a forgery. A witness named Ryan gave direct evidence on behalf of the defence, implicating the plaintiffs in the forgery. He was cross-examined as to his propensity for drunkenness and violence, and in relation to his reasons for hostility to the plaintiffs, obviously with a view to demonstrating that he was lying. However, it was never specifically put that evidence was a fabrication. The defence was permitted, against objection, to call Ryan’s employer to give evidence that Ryan had told him the same story at the proximate time. 39. The jury found in favour of the defendant and the Court of Appeal refused to grant a new trial. The ratio of the case was that the evidence was properly admitted to rebut the implicit allegation of fabrication motivated by personal hostility. In the course of his judgment Ronan L.J. commented that if there had been no cross-examination of Ryan, the whole of the employer’s evidence would have been inadmissible. He went on:
41. Having comprehensively considered these authorities; the position in England and the article by Mr. Kennedy referred to by the first named respondent in this case, Baker J. rejected the argument that a party is deemed to accept evidence not challenged by him.
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 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 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. 43. In relation to the procedural issue, it is pointed out on behalf of the applicant that these proceedings refer in the title to s.5 of the Summary Jurisdiction Act, 1857. Reference is also made to O.84 r.18, which provides that an application for an order of mandamus must be brought by way of a judicial review application. This was the procedure adopted in Turley and in Cullen. 44. On the substantive issue - whether the question sought to be raised in a case stated by the applicant was frivolous - it is submitted that, notwithstanding the judgment of Baker J., the authorities are not settled. 45. Counsel has referred to McGrath on Evidence (1st Ed., 2005) at pp. 90-91, which treats the case of Browne v. Dunn [1894] 6 R. 67 as establishing a rule applicable where a party intends to call contradictory evidence and/or to impeach the credibility of the witness in closing argument. Reference was also made to the following passage, at p. 46, in Heffernan on Evidence in Criminal Trials:
48. It is also submitted that there is no inherent conflict between the judgments in Burke and Christensen. 49. On the facts of the case, it is submitted that, firstly, the applicant was not given the opportunity to deal with the recognition evidence of the Garda. Secondly, there was nothing inherently incredible in his evidence and failure to cross-examine him was tantamount to acceptance of his evidence. Thirdly, although there is no evidence as to what the prosecuting officer said in closing argument, it must be assumed that he impugned the credibility of the applicant. Submissions on behalf of the second named respondent 51. Without prejudice to the foregoing it is pleaded that there is no factual or legal basis for any application of what is described by the applicant as the rule in Browne v Dunn and even if that rule applied in Ireland to the same extent as in the United Kingdom, which is denied, it would not have precluded the first named respondent from convicting the applicant notwithstanding a failure by the prosecution to cross-examine him on his denial of involvement. 52. It is further pleaded that insofar as it has any applicability to summary criminal proceedings in Ireland, which is denied, the rule in Browne v Dunn is directed at procedural fairness and merely provides that an individual should be confronted with any contradictory evidence that is being relied upon and intended to be adduced by the cross-examiner. The rationale of the rule is that a witness should be granted the opportunity to explain and clarify his/her position and/or version of events before any contradictory version be put forth. In the instant case all the prosecution evidence was called and adduced before the applicant testified and the rule is inapplicable. 53. As a procedural matter it is pleaded that the applicant is not entitled to judicial review relief because he has not pursued alternative remedies and in particular he has not invoked s.5 of the Summary Jurisdiction Act, 1857. It is submitted that the applicant does not have leave to seek an order under s.5. 54. In submissions it was argued that the fundamental question raised by the applicant has been answered in Burke, with the result that there is no legal obligation to accept evidence that has not been the subject of cross-examination. 55. It is further submitted that the decision of the first named respondent in the trial was based on the fact that he believed one witness rather than the other. He rejected the legal proposition put to him on the basis of his view of the law, which was demonstrated to be correct in Burke. The applicant should therefore have appealed the conviction. Discussion and Conclusions 57. However, the question whether the rule applies in Ireland was fully addressed with the delivery of the judgment in DPP v. Burke [2014] IEHC 483. It may be arguable that Burke did not raise the Browne v Dunn issue in its pure form. The latter case was concerned with the effect of a decision not to cross-examine a witness, while in Burke the controversy arose because a prosecution witness gave evidence which the prosecution could not, in the circumstances, make the subject of cross-examination. However, the analysis of Baker J. is, at the very least, persuasive, and I see no reason to disagree with it. I therefore respectfully adopt as applicable to the facts in this case the principles set out in paragraph 42 above. 58. The “fair procedure” arguments do not appear to me to carry a great deal of weight in the circumstances of this case. There is no doubt but that each side knew the case it would be meeting. It is incorrect to assert that the applicant was not given an opportunity to deal with the evidence of Garda McMahon - his own counsel could have asked him to do that, rather than simply asking him to deny his guilt. 59. Many witnesses, particularly young persons, may not be good at giving a coherent, sequential narrative in their evidence in chief but may be better able to deal with cross-examination. It may be that both sides adverted to this possibility in adopting the course that they did. Each took a risk in so doing. The risk taken by the prosecution was that it gave the applicant’s evidence a greater weight, and should have prevented the making of imputations against the credibility of the applicant in closing submissions. The defence also took a risk, by not engaging with the Garda’s recognition evidence head-on and thereby leaving open the possibility that the Garda’s more detailed evidence would be found convincing. 60. There is no evidence as to what, if anything, the prosecuting officer said in closing and I do not think it is open to me to speculate as to whether he impeached the credibility of the applicant - if he did, he had very little to go on - or whether he was in a position to highlight the credibility of his own witness by reference to the normal factors relevant to visual identification. 61. In the circumstances I consider that an order directing the first named respondent to state a case at this stage would, in legal terms, be pointless. I think it only fair to stress that I would have been of a different view had the judgment in Burke not been delivered after the applicant had brought these proceedings. 62. For the sake of completeness I should say that I cannot find fault with the mode of proceedings. The documents in the case were, at all times, headed with a reference to s.5 of the Act and the orders sought were not inconsistent with it. |
