28
THE SUPREME COURT
Denham J.
Geoghegan J.
Fennelly J.
McCracken J.
Kearns J. [S.C. No. 417 of 2005] BETWEEN ENDA LYNCH APPELLANT AND
HIS HONOUR JUDGE CARROLL MORAN
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS JUDGMENT of Mr. Justice Kearns delivered the 23rd day of May, 2006
This case concerns the role, if any, of issue estoppel in criminal proceedings in this jurisdiction. It comes before this Court in judicial review proceedings by way of an appeal from an order of the High Court (Murphy J.) dated the 7th July, 2005. By that order the applicant was refused an order of certiorari to quash a ruling made by the first named respondent on the 14th December, 2004, when he held that certain issues in a forthcoming retrial had already been decided by him in a prior trial of the same accused with regard to the same offence and would not require to be relitigated by reason of issue estoppel.
The issue arose in the following circumstances. In or about the month of February, 2004, the applicant was tried for manslaughter before the Circuit Criminal Court sitting in Limerick. During the course of the trial, the defence sought rulings in voir dire hearings in respect of the admissibility of evidence of an identification parade and in respect of identification evidence to be given by a particular witness. The learned trial judge, the first named respondent, ruled against the applicant on these issues and held that the evidence was admissible. After several days of trial, however, the jury failed to reach a verdict and was discharged.
The case was listed for re-hearing in December, 2004. Prior thereto, at a call-over hearing which was held to schedule criminal trials before the particular judge, counsel on behalf of the second named respondent informed the Court that the retrial would be shorter because certain issues had already been determined and were now res judicata against the applicant. Counsel on behalf of the applicant vigorously contested this proposition. The first named respondent heard lengthy submissions from both sides in regard to the issue on the 14th December, 2004. The first named respondent then ruled in favour of the contentions advanced on behalf of the second named respondent and held that issue estoppel in favour of the prosecution should apply. In the aftermath of that ruling an application seeking leave to apply for relief by way of an application for judicial review was brought before the High Court (Macken J.) on the 24th January, 2005. The reliefs sought included an order of certiorari quashing the ruling made by the first named respondent on the 14th December, 2004, an order of mandamus directing the first named respondent to state a case to the Supreme Court to answer the question whether issue estoppel exists in criminal law in this jurisdiction, a stay of the prosecution under Order 84, rule 20(7) of Rules of the Superior Courts, 1986, and an order directing that any retrial be heard before a judge other than the first named respondent.
The grounds upon which leave was granted to bring judicial review proceedings on the 24th January, 2005, were as follows:- “1. That in the light of a ruling made on the 14th December, 2004, by the first named respondent, (on a preliminary issue to a retrial of the applicant on a charge of manslaughter heard by the first named respondent sitting with a jury in Limerick Circuit Criminal Court between 2nd and 9th February, 2004, in favour of the second named respondent is now res judicata/issue estoppel against the applicant), the applicant cannot receive a fair trial contrary to Article 38.1 of Bunreacht na hÉireann and Article 6(1)(2) and 6(3)(d) of the European Convention For The Protection of Human Rights, 1950.
2. That the said ruling was not made in accordance with law nor is it one known to the law.
3. That the said ruling was made ultra vires the powers of the first named respondent and was in breach of the applicant’s rights pursuant to Articles 34.1, 38.1, 40.3, 1 and 2 of Bunreacht na hÉireann and of Article 6(1) and (2) and 6(3)(d) and Article13 of the European Convention For The Protection of Human Rights, 1950.
4. Further in directing that the applicant was to proceed with the trial and in the event of a conviction to pursue an appeal deprives the applicant of an effective remedy contrary to Article 13 of the European Convention For The Protection of Human Rights, 1950.
5. That a retrial in which the applicant is prevented from raising all defences (and challenges) open to him constitutes a trial in which the parties are not met on the basis of “equality of arms” contrary to Article 6(1) and (2) and (3)(d) of the European Convention For The Protection of Human Rights, 1950.
6. That to subject the applicant to a retrial in such circumstances would be oppressive, unjust, an abuse of process, and place the applicant in a position of great prejudice and would deprive him of his right to defend himself fully and properly in accordance with Bunreacht na hÉireann and the European Convention For The Protection of Human Rights, 1950.”
In his grounding affidavit in support of the application, the applicant states (at par.8):-“I say that the first question raised by counsel on my behalf (i.e. at the hearing before the first named respondent on the 14th December, 2004) was whether the rulings in the first trial were res judicata or gave rise to issue estoppel. I say that it was submitted that they do not; that to become res judicata/issue estoppel there must be a final judgment. There was no final judgment. There was only a mistrial. It was submitted that because the whole trial process had collapsed then all the rulings made within it had also collapsed. It was therefore submitted that it would be illogical and wrong to preserve rulings whilst acknowledging that there was no verdict. It was submitted that as a consequence of this an accused person, such as your deponent, should not as a matter of justice be asked to commence a retrial from a disadvantage or with his hands tied behind his back since an accused person enjoys the presumption of innocence and the right to defend himself with all available means.”
The deponent points out that it was argued on his behalf that he had no right of appeal against rulings made in the course of a trial when there was no verdict. Nor did he have any right of appeal from any ruling on any preliminary issue until there was a verdict. It was submitted that there could be no finality or appeal from any part of the trial until there was a verdict and it therefore followed that if there was to be a retrial it could only be on the basis that the accused would entitled to raise all issues in his defence.
Following the granting of leave, the trial of the applicant, which was listed for hearing on the 26th January, 2005, was stayed.
The full hearing of the judicial review proceedings concluded on the 7th July, 2005, when Murphy J. delivered judgment. I do not propose to quote from this judgment, which was delivered in ex tempore form, beyond noting that Murphy J. held that the first named respondent had acted ‘within jurisdiction’ in making the ruling which he did on the 14th December, 2004, and that both the first named respondent and the High Court thereafter were bound to apply the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Keith O’Callaghan [2001] 1 I.R. 584 which held that issue estoppel as between one criminal trial and another should be regarded as available in Ireland so that an individual, discrete, issue might be regarded as finally and validly determined by a court, even though the court’s verdict on the general issue might be set aside on appeal.
In the course of the hearing before this Court, Mr. David Goldberg, S.C., counsel for the applicant, submitted that res judicata cannot apply against an accused where there is a mistrial. He submitted that the notion of res judicata only arises where there is a final judgment. He further submitted that when a mistrial occurs, the case has collapsed and all of the matters in issue are to be retried in a de novo hearing. This view, he submitted, was strengthened by the existence of section 4C of the Criminal Procedure Act, 1967, which permits the Director to serve additional evidence on an accused at any time during a rehearing. He further argued that the decision in The People (DPP) v. O’Callaghan, [2001] 1 I.R. 584, if correct, only operates for the benefit of an accused and not in favour of the prosecution.
On behalf of the respondents, Mr. Feichin McDonagh, S.C., argued that The People (DPP) v. O’Callaghan [2001] 1 I.R. 584 correctly represented the law in this jurisdiction so that if issue estoppel was available to the defence in criminal proceedings it followed that it must also be available to the prosecution, given that mutuality is an essential characteristic of the doctrine of estoppel. Counsel for the respondent further submitted by way of alternative that if The People (DPP) v. O’Callaghan [2001] 1 I.R. 584 was incorrectly decided, then issue estoppel should not be available to either party and there should be no unreciprocated advantage to an accused person arising from rulings made in a first trial if issue estoppel did not also inure for the benefit of the prosecution.
Before proceeding further, it is important to delineate the parameters of this appeal. Firstly, the appeal is not concerned with whether issue estoppel arising in the context of a criminal trial should operate in any subsequent civil proceedings. Secondly, the appeal is not concerned with issues of verdict estoppel, be it autrefois convict or autrefois acquit. Rather it concerns the survivability of rulings made during a trial where the outcome is either a conviction which is quashed on appeal and followed by a retrial, or an aborted trial or one in which the jury fails to agree. As Irish law presently stands, rulings made in the course of a trial which results in an acquittal do not give rise to a right of appeal on behalf of the prosecution as occurs in certain other jurisdictions.
Before considering relevant case law in this and other jurisdictions, it is perhaps useful to focus briefly on the purpose and value of issue estoppel as a concept in legal proceedings, be they civil or criminal. The principle “interest rei publicae ut sit finis litium” – that is, that it is in the public interest that there be an end, or some end, to litigation – must be seen as one of great importance. Closely allied to that principle is that covered by the maxim “res judicata pro veritate accipitur” – that the correctness of a verdict must be accepted. Repeated litigation on the same subject matter does nothing to enhance the reputation of the judicial system or to improve its efficiency. In the criminal context there is a further relevant principle of great importance, namely, that an accused person not be placed in double jeopardy in respect of the same offence (“nemo debet bis vexari pro una et eadem causa”). The doctrine of issue estoppel derives from these principles and, conceptually at least, if applied in the context of criminal proceedings, might operate to reduce or eliminate the mischief of conflicting decisions in different trials on the same issue. Furthermore, the relitigation of an issue or issues already decided is both costly and time consuming and has the effect of delaying other criminal cases seeking to get on. These concepts were well explained in the judgment of the Court of Criminal Appeal in The People (DPP) v. O’Callaghan [2001] 1 I.R. 584, when Hardiman J. accepted that there were various bases in principle to ground the doctrine of issue estoppel in criminal cases. At p.595 he stated:- “Many of these relate to the protection of the party who invokes it and to the restriction of repeated litigation on the same issue on the principle interest rei publicae ut sit finis litium. There is however another basis urged, namely, the protection of the moral integrity of the criminal process, see Paul A. McDermott: Res Judicata and Double Jeopardy (Butterworths, 1999). It is this aspect which is, perhaps most relevant here. A notional onlooker in court seeing the same issue differently decided without hearing evidence, on a reading of a statement, by two different judges sitting in the same courtroom on successive occasions, would not, this Court considers, be confirmed in a favourable view of the criminal process. The difference might be explained by the fact that the second judge was unaware of the first judge’s decision or the reasons for it in any detail but the different results still do not reflect well on the process.”
I agree wholeheartedly with these sentiments, but for the reasons which I will hereinafter advance, I believe that the decision in The People (DPP) v. O’Callaghan [2001] 1 I.R. 584 can not provide the basis for issue estoppel in favour of the prosecution and further that issue estoppel has no role in Irish criminal law.
O’Callaghan: The Position In Ireland
The Court of Criminal Appeal reviewed a number of Irish authorities on the question of issue estoppel in O’Callaghan before summarising the legal position in Ireland up to that point in the following manner (at p 592):- “A decision on an issue in a criminal trial is capable of giving rise to a plea of estoppel in subsequent civil proceedings grounded on the same facts. No such plea can be made if the decision on the issue is subsequently set aside on appeal. Issue estoppel arises in a criminal case ‘if at all’, only for the benefit of the defence. There appears to be no binding Irish authority positively asserting that an issue decided in a criminal trial can ground an estoppel in another criminal prosecution for the same offence.”
Nevertheless, the Court decided that there was no reason “in principle” whereby a discrete, clearly identifiable, issue decided in a criminal trial should not give rise to an estoppel in a subsequent criminal trial, if it is capable of giving rise to estoppel in a civil action (See p.594).
In O’Callaghan, the accused was charged that he caused damage by fire to a dwelling house contrary to the Criminal Damage Act, 1991. His trial at Waterford Circuit Court in November, 1998, resulted in a disagreement. A case came on for trial on a second occasion in February, 1999, before a different judge and on this latter date the applicant was convicted. In the first trial, however, an issue was raised by the defence in relation to the proposed evidence of a particular witness. The trial judge ruled that the proposed evidence was inadmissible, and when the matter came on for hearing at the second trial, the same evidence was again objected to. Accordingly, when, following conviction, the matter came before the Court of Criminal Appeal, the central issue was whether the finding of the trial judge on the first trial that the evidence was inadmissible precluded its admission at the second trial.
It is important to underline at the outset what O’Callaghan does not purport to deal with. The judgment delivered by Hardiman J., having noted that it would be a “rare” criminal case where a clearly identifiable issue had been raised in the course of criminal proceedings, states as follows (at p.596):- “It is rarer that such an issue is determined without evidence, purely on the reading of a short statement. This judgment does not consider circumstances where a finding on a particular issue is sought to be inferred from a verdict on the general issue of guilty or not guilty, or the situation where a defined issue, normally of admissibility, is determined after the hearing of evidence.”
The Court nonetheless took the view that the fact that an identifiable issue of the kind in question might be very rare was not a reason for denying the party in whose favour the issue is decided the benefit of an estoppel. The Court further emphasised that in attempting to resolve this issue, it was not necessary to decide whether the first decision was necessarily right, because it must be taken as correct. As Hardiman J. noted (at p.597):-“The whole of the Latin phrase about res judicata is as follows:-‘res judicata pro veritate accipitur’: or, loosely translated, ‘the decided issue is to be taken as correct.’”
In the course of his judgment, Hardiman J. attached significant weight to the decision of O’Hanlon J. in Kelly v. Ireland [1986] I.L.R.M. 318 to hold that, in principle, the determination of an issue in criminal proceedings can give rise to an issue estoppel. Both in that case and in Breathnach v. Ireland [1989] I.R. 489, the plaintiffs had been arrested in connection with the Sallins train robbery. Each had signed an incriminating statement. Both alleged that the statements had been made as a result of assaults by members of the Gardaí. The Special Criminal Court rejected these allegations, admitted the statements, and the defendants were duly convicted. Mr. Breathnach appealed to the Court of Criminal Appeal where his conviction was quashed on the basis that the trial court had not been entitled to be satisfied beyond reasonable doubt that his statement was voluntarily made. However, the Court held that it should not interfere with the decision of the court of trial which found that the assault allegations were untrue. Both men took civil proceedings against the State and other parties claiming damages for assault and battery. However, each of them was, in their separate actions, held to be estopped from relying on the alleged assault and battery. In Kelly v. Ireland [1986] I.L.R.M. 318, O’Hanlon J. stated at p.328:-“In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such decision may give rise to issue estoppel in later civil proceedings in which that party is also involved. Such estoppel would arise, not only in relation to the specific issue determined (in this case, whether the statement was made freely and voluntarily) but also to findings which were fundamental to the courts decision on such issue.”
As noted by Hardiman J., this passage was specifically adopted by Lardner J. in Breathnach v. Ireland [1989] I.R. 489.
Of course each of these cases were civil proceedings which did not address the question as to whether issue estoppel could arise in further criminal proceedings.
However, previous decisions of this Court lean against the idea of issue estoppel in criminal proceedings. In The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305, Finlay C.J. stated (at p.328):- “In order for there to arise an issue estoppel in any case, and I express no considered view on the special position it may have in criminal cases, it would be essential that there should be a valid and final decision of the particular issue between the parties. Where, however, a decision reached on a particular issue has been set aside on appeal, it can no longer be considered a final or valid decision and cannot be availed of in subsequent proceedings by either of the parties concerned.”
This statement is of some importance, because it indicates a reluctance to countenance the concept of issue estoppel other than in respect of final decisions, or decisions which are reviewable on appeal.
However, issue estoppel was fully considered by this Court in Corporation of Dublin v. Flynn [1980] I.R. 357. In that case an individual was prosecuted for a continuing offence of failing to comply with a planning enforcement notice. The making of the enforcement notice was not proved in the District Court, nor was its service on the defendant. In the course of the proceedings, the plaintiff relied on a recital in an earlier conviction stating that the enforcement notice had been served on the defendant on a particular date.
In holding there could be no issue estoppel, Henchy J. in the course of his judgment stated as follows (at p.363 – 365):- “What is being urged on behalf of the complainants in this case is that, because it was necessarily found in an earlier prosecution of the defendant that the enforcement notice had been duly served on him and was valid, those issues should stand determined conclusively as a matter of res judicata. I consider that to be an insupportable proposition. In the criminal law the conclusive determination in an earlier prosecution of issues (as distinct from verdicts, which are impressed with conclusiveness under the rules of autrefois convict or autrefois acquit) arises, if at all, for the benefit of an accused. The question of whether issue estoppel should be given recognition in the criminal law has given rise to conflicting opinions in courts of the highest authority in England, the United States and Australia. Those cases are considered in Director of Public Prosecutions v. Humphrys in which the House of Lords rejected the existence of issue estoppel in the criminal law.
It is not necessary in this case to make a ruling as to whether the total rejection of issue estoppel made in the Humphrys Case should be followed in this State, for in that case and in the others there mentioned (with the exception of R. v. Hogan) the question of issue estoppel arose only at the invocation of the defence in respect of issues decided in a previous prosecution in favour of the accused. Here it is being raised against the accused.
Under the rubric “May issue estoppel be used against the accused?” Spencer Bower and Turner on The Doctrine of Res Judicata (2nd ed., at pp.287-8) give this reply:- ‘Estoppels are in their nature reciprocal, and if it is to be accepted that the prosecution may be precluded by issue estoppel based upon an earlier verdict from making a fresh accusation against the accused on a different charge, because of a fundamental inconsistency between such a charge and the formal verdict, can the prosecution be denied resort to the same course as a means of convicting a prisoner in later proceedings where the formal verdict is shown to be inconsistent with his innocence? No one has yet contended that this should be the result of the application of issue estoppel to criminal proceedings.’
For this opinion that issue estoppel has never been claimed for the prosecution, there is the support of a dictum of Lord Devlin to the same effect in Connelly v. Director of Public Prosecutions at p.1346 of the report. Even if it is not quite correct to say that there is no such precedent, I am satisfied that it would be contrary to principle to allow the prosecution to prove certain issues by giving evidence that they were determined against the accused in an earlier prosecution. The determination of those issues against the accused in the previous prosecution may be insupportable for being wrong in law or not in accordance with the true facts. There is no valid reason why a determination of that kind should be stamped with finality and immutability. It may have been reached in default of appearance by the accused; even if he did appear, the appropriate submissions may not have been made because of ignorance, inadvertence or bad advice; or the tribunal in the earlier case may simply have been wrong.
It would be contrary to the fundamentals of criminal justice if an accused, because of an estoppel of the kind suggested, were to be debarred from showing in a later trial that the earlier determination of a particular issue was wrong. For one reason or another he may have been prepared to allow the earlier determination to go against him, but there are no reasons of justice why he should be bound to accept that determination for the purposes of a later trial. For example, to avoid undue publicity or to get the matter disposed of quickly, or for some other reason, the accused may have been prepared to accept a wrong decision in an earlier prosecution to the effect that he had committed an act of assault or had driven a motor car dangerously; but, if a death ensues from the event in question and he is later charged with murder or with the statutory offence of dangerous driving causing death, there is no reason why the earlier determination as to assault or driving should not only relieve the prosecution of proof in that respect but also make it incompetent for the accused to attempt to disprove the correctness of the earlier determination. In such circumstances, estoppel would be repugnant to the fair administration of justice because it would deprive the accused of the opportunity of making what might be a good defence. A decision to this effect was given by Mr. Justice Gannon in The State (Brady) v. McGrath on the 25th May, 1979.
In my judgment the prosecution, in this or in any other criminal charge, is not relieved of the onus of proof in regard to necessary issues by showing that those issues were expressly or impliedly decided against the accused in earlier proceedings. It is of the essence of a criminal trial that it be unitary and self-contained, to the extent that proof of the ingredients of the offence may not be established as a result of a dispersal of the issues between the court of trial and another tribunal.”
As is apparent from this citation, considerable importance was attached by Henchy J. to the unitary nature of the criminal process and the undesirability of a criminal trial being fettered or complicated by rulings made in previous trials. This undesirable situation would clearly eventuate in any case where issue estoppel applies, regardless of whether it be applied in favour of the prosecution or the defence. It must also be remembered in this context that the correctness of such original rulings can never be tested on appeal when issue estoppel is applied. The Court of Criminal Appeal will in every case be confined to an examination as to whether the decision to apply issue estoppel was correct. Further, that Court will only have an involvement where the first trial resulted in a conviction. It has no role where the original trial was aborted or ended by disagreement of the jury. The implications of the loss of a right of appeal by an accused person in respect of the issue ruled upon is a matter to which I shall later return. I think it must be said, however, that the general tenor of the judgment in Dublin Corporation v Flynn is against issue estoppel in criminal law and nothing in what was said by Henchy J can be taken as expressing any view that the doctrine should be available to the defence in a suitable case.
The judgment in The People (DPP) v. O’Callaghan not only departs from but appears to treat the decision of the House of Lords in R.v. Humphrys [1977] A.C. 1 as “drastically” altering the law of England in relation to issue estoppel which, it is suggested, provided that issue estoppel in criminal cases was historically available under certain conditions in English common law. It is obviously therefore a decision of some considerable importance and will now be considered.
R. v. Humphrys:
Tracing the history of issue estoppel in criminal law in the United Kingdom, Viscount Dilhorne in the course of his judgment in R. v. Humphrys [1977] A.C. 1 was quite explicit in stating that prior to 1964 there was no English decision which gave support to the view that issue estoppel operated in criminal proceedings in that jurisdiction (at p.18).
In Connelly v. Director of Public Prosecutions [1964] A.C. 1254 decided in that year, the Court of Appeal indicated its view that issue estoppel might apply in criminal cases, but held it did not apply in the particular case as it was not possible to identify from the jury’s verdict of guilty of murder, which was quashed on appeal, any finding on the issue of robbery with which Connelly was charged after his conviction for murder had been quashed. Subsequently, in R. v. Maskell [1970] 54 Cr. App. R. 429, Eveleigh J. stated that he did not regard Connelly v. Director of Public Prosecutions as deciding that issue estoppel was part of the criminal law. Issue estoppel had also been considered in Mills v. Cooper [1967] 2 Q.B. 459 where Lord Parker C.J. stated, at p.466:- “I am by no means convinced, for reasons into which I find it unnecessary to go, that the doctrine as applied in civil cases has any application in criminal cases at all.”
In the same case, Lord Diplock, having reviewed the doctrine of issue estoppel in relation to civil proceedings, went on to say (at p.469):-“The existence of the ‘issue estoppel’ results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation. That general rule applies also to criminal proceedings, but in a form modified by the distinctive character of criminal as compared with civil litigation. Here it takes the form of the rule against double jeopardy… I think with great respect that the use of that expression ‘issue estoppel’ in criminal and civil proceedings alike may lead to confusion, for there are obvious differences – lack of mutualities being but one – between the application of the rule against double jeopardy in criminal cases, and the rule that there should be finality in civil litigation.”
However, issue estoppel was applied in R. v. Hogan [1974] Q.B. 398. It was referred to in R. v. Humphrys as an illustration of the mischief which the application of the doctrine of issue estoppel can cause in criminal proceedings. Mr Hogan had been convicted of causing grievous bodily harm to a man who subsequently died, whereupon Mr. Hogan was then charged with his murder. The prosecution contended that it was not open to Hogan on his trial for murder to put in issue any of the matters which could be taken as concluded against him in favour of the prosecution at his first trial. This contention was upheld by Lawson J. Hogan was acquitted and after his acquittal Lawson J. gave his reasons for his ruling, holding that issue estoppel applied between the Crown and the defendant in criminal proceedings and that it was mutual with the result that the defendant was estopped from challenging issues decided against him just as much as the prosecution were estopped from challenging a finding on an issue in the defendant’s favour in the earlier trial. He therefore held that Hogan could not challenge the finding at his first trial (1) that the victim had suffered grievous bodily harm; (2) that it had been inflicted deliberately; (3) that it had been inflicted without lawful excuse; (4) that it had been inflicted with the intention of causing grievous bodily harm. He also held that if self defence had been put forward at the first trial unsuccessfully, Mr. Hogan could not again put that forward on his trial for murder. The result was that the jury at the murder trial had only to consider whether the death was caused by the injury inflicted in respect of which he had been found guilty at his first trial and the defence put forward of provocation. The application of issue estoppel meant that the jury at the murder trial, although sworn to give a true verdict according to the evidence, were required to accept the conclusions of another jury on evidence which that jury had heard.
Commenting on this situation in R. v. Humphrys, Viscount Dilhorne stated (at pp.20 - 21):- “I see no escape from the conclusion that, if issue estoppel applies in criminal cases, it must apply equally to both parties, to the Crown and the defendant, as it does to the parties in civil litigation. If it applies, then for the doctrine to operate it must be possible to identify a finding on the particular issue… I agree with Lord Devlin that to hold that issue estoppel applies in criminal cases would be the importation of new doctrine. I agree with the opinions of Lord Parker and by noble and learned friend Lord Diplock to which I have referred. Though there are dicta to the contrary, in no English case to which we were referred has a conviction been quashed on the ground that evidence was admitted which was inadmissible on account of issue estoppel. In my opinion issue estoppel has not and never has had a place in English criminal law and it is very undesirable that it should have. It follows that in my view the ruling given by Lawson J. in Reg v. Hogan [1974] Q.B. 398 was wrong.”
Similarly, Lord Hailsham of St. Marylebone concluded in Humphrys that the doctrine of issue estoppel as it has been developed in civil proceedings was not applicable to criminal proceedings. He in turn characterised the distinction between the civil doctrine of issue estoppel and any supposed application of issue estoppel in criminal law in the following manner (at p. 40):-“Although the civil doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings, there is a doctrine applicable to criminal proceedings which is in some ways analogous to issue estoppel, and has sometimes been described by that name. However, the civil doctrine is based on the necessity for finality between private litigants, whereas the doctrine in criminal proceedings is based on the prohibition of double jeopardy, that is, the maxim nemo debet bis vexari pro una et eadem causa.”
In the course of his speech in Humphrys, Lord Salmon expressed his views even more trenchantly in stating (at p.43):-“In the criminal field, however, besides being complex and technical, the doctrine of issue estoppel would, in my view, also be inappropriate, artificial, unnecessary and unfair. It would be inappropriate because there are no pleadings defining the issues and no judgments explaining how the issues (even if identifiable) were decided. Sometimes, as in the present case, it would be possible to identify the issues. But it would rarely be possible to do so. Since juries give general verdicts ‘guilty’ or ‘not guilty’ it would often be difficult, if not impossible, to do more than guess how they had decided any issue capable of identification.
Even in the rare cases in which the difficulty to which I have alluded could be overcome, issue estoppel would often be artificial and unfair. Take the not infrequent case in which the jury decides an issue in the defendant’s favour not because they are satisfied that their solution is correct but because they are left in doubt as to whether the contrary had been proved. In such a case, surely it would be artificial and unjust if the defendant who, quite rightly in my view, enjoys many advantages, should be given the added bonus that that issue should thereafter be presumed forever to have been irrevocably decided in his favour as between himself and the Crown. This might mean that upon a totally different charge against the same defendant, supported by overwhelming evidence against him, he might quite unjustly escape conviction because of the issue estoppel. Moreover, I think that it is wholly unnecessary to introduce issue estoppel into the criminal field. The doctrine of autrefois acquit and convict amply protects the accused from being brought into double jeopardy.”
In the course of his speech in the same case, Lord Edmund-Davies also felt constrained to observe (at p.55) that issue estoppel was not only “an unnecessary importation into our law, but it could lead to absurd and unjust results.”
This far from exhaustive recapitulation of certain passages from R. v. Humphrys suggests that, far from there being a long history of issue estoppel in criminal law in the United Kingdom, the “doctrine” was only specifically applied in criminal proceedings in R. v. Hogan [1974] Q.B. 398. This decision was one which the House of Lords was told in the course of the appeal in Humphrys had caused “consternation” at the Bar in England, resulting in the adjournment of at least one trial until the views of the House on the issue were made clear. It seems to me therefore that the decision in R. v. Humphrys did not “drastically” alter the law in England, but rather restored the position that issue estoppel had no place in the British criminal law system.
Australia and Canada
A similar position has been arrived at in Australia following decisions in R. v. Blair [1985] 1 N.S.W.L.R. 584 and Rogers v. The Queen [1994] 181 C.L.R. 251.
In the first of those cases, the Supreme Court of New South Wales held that where a trial is aborted no question of issue estoppel can arise in relation to any of the rulings that may have been given by the trial judge in that aborted trial. In the course of his judgment Street C.J. stated (at p.587):- “It is plain both from this case, and from every other case to which the court has been referred, that an issue estoppel can only arise out of proceedings in which there has been a final determination of the matter in suit, that it to say the proceedings being terminated with finality. Accepting, without examining, that the doctrine of issue estoppel applies to criminal trials it follows that where a trial is aborted, as happened in the first of the trials here, no question of issue estoppel can arise in relation to any rulings that may have been given by the trial judge at that aborted trial.”
In Rogers v. The Queen, a majority of the High Court of Australia held that the doctrine of issue estoppel as it had developed in civil proceedings was not applicable to criminal proceedings. At the commencement of his judgment, Mason C.J. stated:-“I adhere to the view which I expressed in R. v. Storey 1978 140 C.L.R. 364 that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons which compel acceptance of that view are set out in the judgments of Barwich C.J., Gibbs J. and myself in that case. The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions.”
Albeit that he delivered a dissenting judgment in that case, Brennan J. (as he then was) identified two factors which operated strongly against the application of issue estoppel in criminal law. The first is the absence of any appeal on the particular issue governed by issue estoppel. Brennan J. observed as follows (at p.265):-“Of more concern to legal policy is the factor which led Lamer J. in Duhamel v. The Queen [1984] 2 S.C.R. 555 to draw back from applying the doctrine of issue estoppel to a finding made on a voir dire, namely, the absence of any appeal. His Lordship said:-‘Though the voir dire is in a sense autonomous, it is nevertheless totally dependant upon the main trial for its appeal process. Let us postulate error on the part of the judge in determining the admissibility of the statement. If the statement is wrongly excluded, even through error of law, and that the accused is nevertheless convicted, benefit of the doctrine of res judicata would then be founded upon an error of law beyond the reach of redress. Indeed, the Crown has no appeal from that conviction. Similarly, if the statement is excluded through error of fact, and the accused acquitted, again the erroneous finding is beyond the reach of the courts as the Crowns right to appeal is limited to matters of law.”
However, even in the absence of any avenue of appeal, Brennan J. was disposed to apply issue estoppel to findings made in the course of rulings that become final. This of course was in a context where the Crown enjoyed a right of appeal from an acquittal. As Brennan J. noted (at pp.266-7):-“The policy of the criminal law has traditionally favoured the limitation of Crown appeals against a verdict of acquittal and the tenderness shown by the law in this respect combined with the desirability of finality in litigation justifies the application of the doctrine of issue estoppel to final rulings in favour of an accused on voir dire. Although, on a balance of policy considerations, I would favour the application of the doctrine in criminal cases, I do so with some misgivings of the kind which weighed with Lamer J. in Duhamel. But at the end of the day, to allow inconsistent findings to stand either on criminal liability for conduct or on voluntariness in the making of his confession could only engender the gravest sense of injustice in an accused person and promote the notion that a criminal trial is, in significant respects, a lottery.”
That said, Brennan J. went on to consider a further objection to the application of the doctrine of issue estoppel in criminal cases, namely, the requirement that mutuality is essential to the doctrine of estoppel. At p.267 he stated:-“Although mutuality is a criterion of applicability of the doctrine in civil litigation and has been held to preclude the acceptance of a conviction as conclusive in favour of another party in criminal proceedings, an issue estoppel cannot inure for the advantage of the Crown in a criminal trial. Although there be an identity of parties – the Crown being, in the eye of the law, the party to a criminal prosecution – mutuality would run counter to the basic notion that the accused is entitled to the presumption of innocence until the Crown produces evidence that satisfies the jury of his guilt beyond reasonable doubt. As Gibbs J. said in Storey:-‘It would be contrary to the fundamental principles of the criminal law that the members of a jury should be obliged by the decision of another tribunal to bring in a verdict against an accused person, without themselves being satisfied that issues which the accused wished to contest had been proved against him.’
It follows that issue estoppel can operate, if at all, only in favour of an accused person, not against him. Mutuality is, in my respectful opinion, the only valid objection to the application of the doctrine in criminal cases. If the doctrine is to be either rejected or modified for application in criminal cases, the better view is that it be modified.”
In Duhamel v. The Queen [1985] 14 D.L.R. (4th). 92 the Supreme Court of Canada had to consider issue estoppel in the context of rulings on confessions and admissions. The accused was charged with two robberies which had occurred on two separate days and gave a statement which implicated him in both robberies. The accused was tried separately for each robbery and at the first trial the statement was held involuntary and not admitted and the accused was acquitted. On the trial with respect to the other robbery, the trial judge held that the statement was voluntary and admitted it into evidence. The accused was convicted, and on appeal to the Alberta Court of Appeal argued that by virtue of issue estoppel the confession should not have been admitted on the second trial as it had been held involuntary on the first trial. The accused’s appeal was dismissed. On further appeal by the accused to the Supreme Court of Canada, it was held that the appeal should be dismissed. Having noted the requirements of a judicial system to be efficient so that matters that have been fully litigated between parties be not reopened, and further that the scandal of conflicting decisions be avoided, Lamer J. in delivering the judgment of the Court nonetheless held that a fundamental obstacle to the extension of the doctrine into the field of criminal law lay in the absence of any right of appeal in respect of the matter ruled upon. I have already referred to the citation from the judgment of Lamer J. which so troubled Brennan J. in Rogers v The Queen, and it is only necessary to add that the Supreme Court of Canada was satisfied in Duhamel that in the absence of the availability of an autonomous appeal of findings as to the admissibility of confessions, there was no clear advantage to the administration of justice in extending the doctrine of res judicata.
Decision
Clearly there does not exist in Ireland any system for autonomous appeals in respect of findings or rulings made during the course of criminal trials. The Court of Criminal Appeal is not a court established by the Constitution but by statute, namely the Courts (Supplemental Provisions) Act, 1961 which provides at section 12 :- “The Court of Criminal Appeal shall be a Superior Court of record and shall, for the purposes of this Act and subject to the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it”
Section 3(1) of the Criminal Procedure Act, 1993 (under the side heading “Jurisdiction of the Court of Criminal Appeal in relation to appeals”) provides:-“On the hearing of an appeal against conviction of an offence the Court may-
(a) affirm the conviction….or
(b) quash the conviction and make no further order, or
(c) quash the conviction and order the Applicant to be retried for the offence, or
(d) quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty of the other offence –
(i) substitute for the verdict a verdict of guilty of the other offence, and
(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity”
An appeal comes before the Court of Criminal Appeal as part of a unitary process which flows from a trial resulting in a conviction. The rulings made at and during the trial by the trial judge may be examined by the Court of Criminal Appeal to ascertain if they are correct. However, where a first trial is aborted or where the jury disagrees, there is no conviction and thus no recourse to the Court of Criminal Appeal. Taking therefore a case where issue estoppel is applied in a ruling made in the course of a retrial, the correctness of the original ruling made in the first trial (or in a subsequent trial - given that the process may involve more than one prior trial) is one which can never be examined. It is only the correctness of the decision to apply issue estoppel which can now be challenged. The court simply does not have jurisdiction to trawl through transcripts of earlier trials (even if it was minded to do so) to examine the correctness or otherwise of the original ruling to which issue estoppel applies. That being so, an accused loses a clear legal right of appeal in respect of what might well be the most critical portion of the case against him. Not only does such an outcome defeat a right of appeal guaranteed under Article 34 of the Constitution, it also flies in the face of the provision contained in Article 2(1) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), to which Irish courts must now have regard since the signing into law of the European Convention on Human Rights Act, 2003. Section 2 (1) of the Human Rights Act, 2003, provides:-“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
Article 2 (1) of Protocol No. 7 to the Convention provides:-“Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”
These requirements, both under the Constitution and as provided for by the Human Rights Act, 2003, strike me as decisive in determining that issue estoppel in favour of the prosecution can have no place in Ireland’s criminal justice system. I am also of the view that, insofar as the application of issue estoppel forecloses any entitlement of an accused to challenge in a retrial the propriety of a ruling made in a prior criminal trial, it may also be impermissible having regard to Article 6 of the Convention (which, in the same way that Article 38 of the Constitution provides for a trial in due course of law, provides for the right to a fair trial, the presumption of innocence and the right of an accused to examine witnesses against him).
Quite apart from these reasons, I am also of the view that there are practical difficulties arising on the application of issue estoppel which lead to the same conclusion. One of the arguments in favour of issue estoppel is that it avoids the relitigation of issues which may have taken a considerable length of time to litigate at a first trial. The admissibility of an accused’s statement would be a prime example. However, considerations of the time taken to resolve issues can not ultimately be any sort of guiding test or principle because it may obviously be possible to rule very quickly in some instances upon a matter of great importance to the outcome of a case. But whether the issue takes weeks or minutes to decide, the principle remains the same and it is this: that if issue estoppel is to be applied, it must apply to all rulings, however arrived at, be they important or unimportant, made in favour of an accused where the same issue arises in a subsequent trial and where an accused invokes the estoppel. In most cases the rulings in the first trial will have been made in ex tempore fashion by the trial judge with little in the way of detailed reasons being given at the time of the ruling because of the exigencies of pressing on with the trial. One can readily imagine how lengthy disputation might take place in subsequent trials as to whether certain issues are identical or not. In some instances it might only be possible to overcome such difficulties by comparing proposed evidence in one case with evidence previously given in another. Prolonged and tortuous analysis of issues ruled upon in one or more previous trials would be almost inevitable. Such a fragmented approach to trial work seems to me highly undesirable and indeed it would be an ironic twist if the application of issue estoppel resulted in only greater confusion and conflict than that which it was supposed to remove.
Given that mutuality is at the heart of issue estoppel, and having regard further to the concept of ‘equality of arms’ fostered by the Convention and reflected in decisions of the European Court of Human Rights, it seems only logical and reasonable to hold in addition that, if issue estoppel can not operate in favour of the prosecution, it should not operate in favour of the defence by way of unreciprocated advantage either. I would agree with the views expressed by Street CJ. in R v. Blair (1985) 1 N.S.W.R. 584 that in any later criminal trial no question of issue estoppel can arise in relation to any of the rulings that may have been given by the trial judge at the aborted trial. Here I would invoke in support the ‘notional onlooker’ referred to by Hardiman J. in The People (DPP) v. O’Callaghan whose sense of fairness in the operation in the criminal justice system must be kept in mind. A simple example of one-sided issue estoppel may illustrate the point. If, for example, in a first trial for rape, a statement made by an accused is ruled inadmissible, and if in that same trial the judge also rules that the complainant may be cross- examined about her prior sexual history, could the application of issue estoppel in favour of the accused on both matters in a retrial be regarded either favourably or as fair by such a notional onlooker, notably when the complainant on the one hand would thereby be denied the opportunity to challenge the propriety of a critical ruling made against her in the previous trial while the accused in contrast would enjoy the benefit of a possibly incorrect ruling in his favour to exclude a statement in which he may have admitted the offence? I think the answer would have to be in the negative.
I see no reason grounded in public policy for granting an accused an unreciprocated advantage if issue estoppel does not generate mutually. In truth, a disservice is done to the integrity and reputation of the criminal process if the scales of justice may be seen by the notional onlooker or by the public at large as forever tilted in favour of an accused and forever tilted against the State. In my opinion, the extension of a consideration of ‘tenderness’ in this regard to an accused, as so described by Brennan J. in Rogers v The Queen [1994] 181 C.L.R. 251, is not warranted having regard to all the other rights he properly enjoys under our criminal justice system.
Having reached the conclusion that issue estoppel has no role in Irish criminal proceedings, either in favour of the prosecution or the defence, it follows that the appeal herein should be allowed and that the order made by the learned Circuit Court judge should be quashed.
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