JUDGMENT of Mr. Justice Kearns delivered the 30th day of July, 2007.
On the 7th December 2006, the Attorney General certified the following question under s. 29 of the Courts of Justice Act, 1924:-“Whether in all the circumstances the Court of Criminal Appeal was correct in refusing to admit the expert evidence sought to be adduced by the applicant, to the effect that as a matter of certainty the rape did not occur as alleged by the complainant; and that as a matter of probability, no rape occurred; and in particular:
(a) Whether the criteria for deciding whether to admit fresh evidence in the Court of Criminal Appeal includes a requirement that the evidence was not available to the appellant prior to the trial; or whether the said issue is merely an important factor in considering the requirements of justice in all the circumstances of the case;
(b) Where an application is made to adduce in the Court of Criminal Appeal fresh evidence that was available prior to the trial, is it necessary to assert or establish unreasonable, irrational, illogical, or negligent conduct of the defence at the trial?”
This certification followed a refusal by the Court of Criminal Appeal on the 16th June, 2006 to certify a question in similar terms to this Court pursuant to s. 29 of the Courts of Justice Act, 1924 on the grounds that:-
(a) The evidence sought to be adduced was opinion evidence of medical experts and not evidence of factual matters;
(b) In both trials, it had been open to the appellant to seek expert opinion on the medical reports and information available at the time of the first and second trials, and that he had chosen not to do so;
(c) The decision by the appellant and his legal advisors not to seek expert medical opinion was a considered decision, and took into account the potential damage to the accused if the medical evidence had been opened to the jury;
(d) The considered decision by the appellant’s legal advisors was a reasonable one on the facts of the case;
(e) The medical evidence upon which the expert opinion evidence was subsequently sought was known to the appellant and his legal advisors at the time of the trial;
(f) That whilst it might be desirable to have a ruling from the Supreme Court on the issue of fresh evidence in a criminal trial, this was not an appropriate case on its facts to seek such a ruling as the case was not one within the category of cases involving a point of law of exceptional public importance on its particular facts.
Subsequent to the refusal of the Court of Criminal Appeal to certify a question, the appellant’s solicitors wrote to the Attorney General and asked him to certify the said question and the Attorney General did so on the 7th December, 2006. The Attorney General did not however seek to be represented or heard on the hearing of the appeal before this Court.
Background Facts
The appellant in this case was charged with a single offence that, on a date unknown between the 1st May, 1996 and the 1st July, 1996, he raped P. D., a young woman. She was at that time fourteen years of age and was baby sitting on the night in question at the home of the appellant’s sister. She claimed that the appellant came to the house shortly before midnight. He jumped upon the complainant holding some sharp object to her neck. Having forced her to the ground he squeezed her neck until she agreed to his demand to move to a bedroom upstairs. She tried to fight back but could not. Having removed her clothing and his own, he forced her to lie on a bed and put his penis in her vagina. After a few moments he withdrew and then pulled her legs over his shoulders before penetrating her a second time. He then made her stand against a wall where he lifted her right leg next to his side and put his penis once more into her vagina. They then moved back to the bed at which point the complainant seized her opportunity to break free and run downstairs. He thereafter permitted the complainant to re-dress herself and left. P.D. said that she examined herself in the bathroom following his departure and noted a small amount of bleeding from her vagina.
P.D. made no complaint of this incident to the appellant’s sister when the latter returned to the house at about 3 am, nor did P.D. report the matter to her own parents after she arrived to her own home, although her mother was awake when she got there. Indeed a full two years passed before she brought her complaint to the attention of the gardaí in June, 1998. Immediately following her complaint, the complainant was sent for examination by a local GP, Dr. Power and also by Dr. Twomey at the Family Centre in St. Finbar’s Hospital in Cork.
The first trial of the appellant in 2001 ended in jury disagreement and the second trial commenced on 15th July, 2003, before Peart J. in the Central Criminal Court and concluded on 18th July, 2003, when the jury, by majority verdict, convicted the appellant of the offence.
During the trial, defence counsel cross-examined the complainant on the basis that she had made a malicious and false complaint because a row had occurred between her boyfriend and the appellant some weeks before the making of the complaint in June, 1998. The complainant for her part denied this and said that the row, which she admitted had occurred, took place because she had told her boyfriend that the appellant had attacked her when she was fourteen years of age, and her boyfriend had, out of anger towards the appellant, caused damage to the appellant’s motor car.
The matter was adjourned for sentence until 29th October, 2003. On that date, counsel for the appellant indicated that the appellant had sought legal advice from new and separate advisors and had formed the view that certain medical evidence, i.e., the reports from Dr. Power and Dr. Twomey, which were available at the time of trial, should have been put in issue by the defence at the trial. On that basis, counsel and solicitors originally instructed on behalf of the appellant indicated that they could not now continue to act and they withdrew from the case. The appellant, represented by new legal advisors, was sentenced by the trial judge on 18th December, 2003 to seven years imprisonment. Leave to appeal his conviction was refused.
By notice of appeal dated 24th February, 2004, the appellant appealed his conviction and sentence to the Court of Criminal Appeal. The grounds of appeal included, inter alia, an application to the Court of Criminal Appeal to be allowed to adduce fresh evidence. Grounds of appeal included complaints relating to the “fresh complaint” evidence at trial, the judge’s charge to the jury and alleged failures on the part of the trial judge to deal properly with requisitions.
On 22nd March, 2004, the Court of Criminal Appeal granted bail to the appellant pending the appeal. The appellant has been on bail since that time in relation to his conviction.
It was agreed between the parties that the application to adduce fresh evidence in the Court of Criminal Appeal should be heard as a preliminary issue. That course was adopted and the Court of Criminal Appeal delivered its judgment on that issue on 27th April, 2006.
Before turning to the judgment of the Court of Criminal Appeal, it is appropriate at this stage to refer to the medical evidence in the case and the proposed new evidence.
SUMMARY OF EXPERT OPINION ON MEDICAL ISSUES
In a report dated 22nd October, 2003, Dr. Deirdre Power confirmed that P.D. had attended her surgery on 26th June, 1998. Having examined the complainant, Dr. Power noted that:-
“ (a) The hymen was not intact (b)The introitus was tight and one finger examination was possible;
(c) That P.D. became very upset at the examination and it was terminated.”
In her report dated 27th July, 1998, Dr. Mary Twomey of the Family Centre at St. Finbar’s Hospital in Cork confirmed that the complainant had been examined by her on the same date, i.e., 26th June, 1998, and her examination recorded that:-
“External genitalia: Normal
Introitus: Normal appearance
Posterior fourchette: Intact;
Hymen: Oestrogenised hymen Edges of hymenal opening showed small irregularity at one o’ clock
Admitted one finger with some discomfort”.
In Dr. Twomey’s opinion, it was difficult to comment on the
physical findings due to the significant lapse of time between the incident and the medical examination. Also, it was noted that P.D. was post pubertal at the time of the examination. She stated that normal physical findings had been recorded in the literature in cases of sexual abuse involving penetration.
Both these medical reports were furnished to the defence legal team by way of disclosure prior to the first trial. They were also available to, and considered by, the defence team prior to the second trial.
Following the conviction of the appellant at his second trial, his new legal advisors sought additional expert opinion on the findings described in the reports of Dr. Power and Dr. Twomey. Reports were obtained from Prof. Anthony Busuttil, professor of forensic medicine in Edinburgh University, and from Prof. John Bonnar, professor of obstetrics and gynaecology, in St. James’s Hospital in Dublin.
In his report dated 13th November, 2003, Professor Busuttil indicated that he felt Dr. Power’s examination fell below the appropriate level that would have been expected from a clinical examination conducted on a person of this age group alleging rape. He felt Dr. Power’s report could not be relied upon in evidence in any way.
He felt, however, that Dr. Twomey’s examination was quite appropriately carried out and a full medical examination was carried out together with a very adequate examination of the genital area. Given that the plaintiff complained of penile penetration on three occasions which caused bleeding thereafter, he was of the view that one would have expected to find damage to the posterior fourchette and to the hymen. However, he did concede that it was possible for trauma to a hymen to heal to complete normality. He indicated that, given the allegations made by the complainant and “the force involved” in the incident, he would have expected to see some scarring or irregularity as a consequence of the injuries sustained at the time. He also stated that the absence of scarring did not exclude incontrovertibly the occurrence of a sexual incident - even with penetration - given the time-lapse between the incident and the medical examination some two years later. What it did exclude, in his considered view, was an assault of the nature and severity indicated in the narrative given in oral evidence by the complainant at her second trial.
In his expert report dated 10th October, 2003, Professor Bonnar agreed that the findings noted in Dr. Twomey’s report were within normal limits. He stated that such findings would not normally be consistent with penetrative intercourse having occurred previously. A small irregularity at one o’ clock in the hymen would not support previous intercourse. Coital injuries on the hymen would normally occur on the posterior part of the hymen between four and eight o’ clock. The fact that the hymen only admitted one finger with some discomfort would suggest that the hymen orifice was largely intact which was inconsistent with previous penetrative intercourse.
It is important to stress that neither Professor Busuttil or Professor Bonnar ever met, examined or spoke with the complainant.
In response to the commissioning of those reports, the prosecution in turn sought expert opinion evidence from Dr. Mary Holohan, consultant gynaecologist at the Sexual Assault Treatment Unit at the Rotunda Hospital and Dr. Catherine White, principal forensic medical examiner in the Greater Manchester area. Both experts are specialists in the area of sexual assault and abuse trauma.
In her reports dated 17th August and 12th November, 2004, Dr. Holohan considered the reports and notes of Drs Power and Twomey and the expert opinion reports of Professor Busuttil and Professor Bonnar. Although she agreed with Professor Busuttil that P.D. might have had genital injuries at the time of the alleged incident, she referred in her report to expert literature/empirical research which found that genital injuries in relation to non-consensual penile penetration of the vagina was seen in only 25 percent of examinations when complainants were examined within 72 hours. She also referred to other expert literature/data which found that in places of genital injuries, the hymen was the site of injury in only 29 percent of cases. She therefore concluded that the hymen is only injured in less than ten percent of cases of non- consensual vaginal intercourse. On the basis of the literature/data, she concluded that the presence of trauma to the hymen was not a necessary prerequisite for the diagnosis of penetrative trauma to the vagina. She also referred to literature in which studies revealed that healing was complete in 50 percent of cases within 48 to 72 hours after the incident. She concluded that the possibility of hymen injury at the time of the incident was relatively low, that bleeding was more likely to have come from an abrasion within the area of the posterior fourchette or fossa naviculars, that if the hymen injury had occurred there was a possibility it may have healed and, finally, that abrasion injuries to the posterior fourchette or fossa naviculars would have healed within weeks of the incident.
In a later letter of 12th November, 2004, Dr. Holohan noted that such injuries tend to be observed less often in adolescent and young adult victims as they heal faster for the reasons detailed in her report.
In her report dated 3rd April, 2005, Dr. Catherine White answered the question as to whether first - time intercourse always results in injuries in the negative. In particular, she referred to the ‘Adams Paper’ which found that only 32 percent of girls who had given accounts of abuse involving penile vaginal penetration presented with abnormal genital findings. In relation to those studies she noted that this meant there were 51 percent of cases in this study who noted bleeding after the assault who presented with a normal examination. She also referred to research conducted at St. Mary’s Sexual Assault Referral Centre in Manchester which looked at a number of cases involving girls between the ages of twelve to seventeen who had made allegations of non-consensual penile vaginal penetration. Of these, 39.4 percent presented with no genital injuries at the time of examination. The research document noted that 78 percent of these were examined within 72 hours of the alleged assault. She also referred to the fact that it is generally accepted that post pubertal females can experience penile penetration without sustaining any hymen deficit, a fact which is attributable to hymen elasticity.
In her report, Dr. White considered the various points raised by Professor Busuttil in relation to the position of intercourse adopted as outlined in evidence which Professor Busuttil identified as unusual. Dr. White did not accept that the positions as outlined in evidence were out of the ordinary. In relation to the opinion offered by Professor Busuttil that, given the severity of the assault and the force involved, there should have been some evidence of injury seen at examination two years later, Dr. White for her part questioned where the evidence for an assault involving ‘severe force’ came from. The evidence of P.D. was that she bled only slightly and that she did not need to seek medical attention at the time. In the concluding portion of her report, Dr. White indicated that there were a number of possible explanations for the presence of a normal genital examination including the explanation that sexual intercourse took place, without consent, causing injuries which had healed in the intervening two years.
JUDGMENT OF THE COURT OF CRIMINAL APPEAL As already noted, the application to adduce fresh evidence was
brought by way of motion before the Court of Criminal Appeal and the judgment of the court on that issue was delivered by McCracken J. on 27th April, 2006.
In the course of the judgment, McCracken J. noted that no medical evidence was called during the course of the first trial held in October, 2001. He further noted that following conviction in July, 2003 the matter was adjourned until 29th October, 2003, for sentencing. On that date counsel for the applicant indicated that the applicant had in the interim sought legal advice and was now of the view that medical evidence ought to have been put in issue by the defence at trial. McCracken J. noted that during the course of the sentencing hearing on 29th October, 2003, Mr. Anthony Sammon S.C., the applicant’s senior counsel in the second trial, in explaining why he could no longer act in the light of the allegation at the medical evidence ought to have been called said:-“My view of the matter was that whilst there is a popular misconception that one cannot have penetrative sex and have a surviving hymen that is a very grave error. Indeed it is such that that might be attractive to certain people to try and forward in the course of a trial. My prudent view, as I saw it at the time, was that such an approach would lead to prosecution counsel in the case seeking to bring Dr. Twomey into the case and one might end up with a very, very adverse result from the evidence of Dr. Twomey. But as to whether I was correct in my judgment, this matter gets to this stage.”
McCracken J. further cited passages from the transcript of the sentencing hearing which confirmed that the defence legal advisors were familiar with the terms of Dr. Twomey’s report both prior to and in the course of the trial and “mindful of same”.
Having reviewed the relevant legal principles, McCracken J. concluded the judgment of the court in the following terms:-“The court is quite satisfied, therefore, that the evidence sought to be adduced does not come within the established criteria for the admission of additional evidence on appeal. It was evidence which could have been obtained on behalf of the applicant, and might well have been sought had the decision being taken to defend the case on the basis of medical evidence. It has frequently been said in this court that the court will not allow an appellant to trawl through the transcript of a case, sometimes many months later, in an attempt to find points which might assist the appellant but which were not raised at the trial. In the view of this court the situation is very similar where a tactical decision was taken before the trial which it is now sought to challenge. If the Court of Appeal is to consider matters which were deliberately not raised in the course of the trial, there must be exceptional reasons for doing so. A decision as to the basis on which a defence is to be conducted can at times be a very difficult decision, and, as in the present case, can involve detailed consideration of the possibilities that a certain approach may assist, or may seriously damage, the case being put forward on behalf of the accused. Once that decision is taken, the die is cast and it is completely reasonable and logical that in conducting a defence in accordance with such a decision, certain other possible defences will be rejected or not put forward.
The court accepts that there may be exceptional circumstances in which a different approach may be taken on appeal... There may also be exceptional cases where the decision was clearly irresponsible or irrational, but that is certainly not so in the present case. The court will not allow an accused to put forward a perfectly rational defence, and when it fails, to defend the accusation on a different basis. Accordingly the court refuses to allow the new evidence to be adduced.”
On the 16th June, 2006, the Court of Criminal Appeal rejected an application for a certificate pursuant to s. 29 of the Courts of Justice Act, 1924. In the course of ruling on that application, McCracken J. noted at pp. 2-3:-“While there have been a number of judgments in the Court of Criminal Appeal dealing with the admission of fresh evidence on the hearing of an appeal, it is strongly urged on behalf of the applicant that such decisions are not always consistent, and, correctly, that the question has never been considered by the Supreme Court. However, as stated in the earlier judgment, the Supreme Court has set out the principles applicable to the introduction of new evidence in that court in civil actions.
The new evidence sought to be adduced in the present case is the evidence of two expert medical witnesses. It is not the evidence of factual matters, but evidence of opinion to be given by experts. In considering whether to grant a certificate the court must have regard to the background of the case itself.
In the present case there have already been two trials of the applicant, the first having been aborted at a late stage. On both occasions it was open to the applicant to obtain expert evidence such as is now sought to be admitted, and to conduct a defence based on medical evidence. In both cases the decision was made not to defend the case on that basis. This decision was a considered one, taken after assessing the possible damage to the applicant’s case, and it appears to this court that it was a very reasonable decision to have taken in the circumstances.
The court accepts that it might be desirable to have a Supreme Court ruling on the question of admissibility of evidence on a criminal appeal, but that is not the test. It is for the applicant to show that the ruling sought is on a point of law which is of exceptional public importance. It is the view of this court that the facts of the present case would not bring it within that category. This court rejected the applicant’s appeal primarily on the basis that he should not be allowed a retrial in which he would put forward a defence which he had decided not to rely on in his earlier trial. In the view of this court the circumstances of this case do not raise a matter of exceptional public importance in relation to the admission of new evidence and accordingly the court refuses the certificate.”
SUBMISSSIONS OF THE PARTIES
On behalf of the applicant, it was argued that the trial was unsatisfactory and the conviction unsafe, having regard to the failure of the prosecution to adduce medical evidence available to the prosecution which tended to show:-
(a) that it was reasonably possible that the allegation made by the complainant was untrue, and
(b) that as a matter of probability, the allegation of rape made by the complainant was untrue, and
(c) that as a matter of certainty or a high degree of probability, the account given by the complainant as to the nature and manner of the commission of the rape was not true.
It was argued that the circumstances of the applicant’s case should be regarded as so exceptional as to require the grant of the leave sought having regard to the strong probability that if the evidence had been available in the trial, an acquittal would have resulted. It was submitted that the Court of Criminal Appeal erred in failing to take into account adequately or at all the fact that counsel representing the applicant at the trial:-
(a) did not appreciate the potential significance of the facts known to him as to the findings on the physical examination of the complainant;
(b) did not have the benefit of any expert advice on the matter
(c) was not aware of the nature or potential impact of the said expert evidence; and therefore
(d) was not in a position to make an informed decision, tactical or otherwise, as to whether to call expert evidence.
It was submitted that the decision taken by the former legal team and their state of knowledge at the time are proper matters for consideration in deciding the justice of the case, but not to the exclusion of all other considerations including the possible innocence of the applicant.
While counsel for the appellant acknowledged that the principles laid down in People (Director of Public Prosecutions) v. Willoughby (Unreported, Court of Criminal Appeal,, 18th February, 2005) precluded the admission of fresh evidence in circumstances such as those which arose in the present case, it was argued that Willoughby should not be applied in an inflexible manner but rather that all the circumstances of the case should be examined to ensure that no injustice had occurred.
Counsel for the applicant noted that in England the legislation governing the admission of fresh evidence provided that it may be admitted if it is “necessary or expedient in the interests of justice” (s.23 of the Criminal Appeal Act, 1968 as amended). In that context, certain matters must be considered by the court in the exercise of the discretion, but these are not preconditions as in Willoughby. The matters which must be considered in that jurisdiction are whether the evidence is credible, whether it might ground the quashing of the conviction, whether it would have been admissible at trial, and whether there is a reasonable explanation for the failure to call the evidence in the trial.
Counsel further submitted that in Canada, the Criminal Code there provides that the court may admit fresh evidence “where it considers it is in the interests of justice”. All nine judges of the Canadian Supreme Court in R. v. Warsing [1998] 3 S.C.R. 579, agreed that the Court of Appeal properly exercised its discretion in admitting fresh expert evidence as to the alleged diminished responsibility of a person convicted of murder. In doing so, Major J. addressed the issue of the criteria for the admission of fresh evidence as follows:-“It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice required that it be admitted, then the failure to meet the test should yield to permit its admission.”
While not expressly asking this Court to reject the statement of principles in People (Director of Public Prosecutions) v. Willoughby, Mr. Ó Lideadha, senior counsel for the applicant, argued that those principles be seen as being subject to an overarching requirement that justice be done. In this respect he argued that the legal principles in England were more appropriate and should be adopted in this jurisdiction also. It should not be necessary to establish, as suggested by the judgment of the Court of Criminal Appeal in this case, that there had been ‘unreasonable, irrational, illogical or negligent conduct of the defence’ at the trial in order to obtain relief. It was accepted that the failure to procure an expert’s report was an error on the part of the defence in the instant case. However, it was always possible for counsel to make what might be characterised as a non-negligent error of judgment, and there was no public interest to be served by penalising an applicant in such circumstances.
In response, counsel for the respondent argued that the advisors of the appellant in both trials were aware of the contents of the reports of Dr. Power and Dr. Twomey, but took a tactical decision not to bring the doctors into the case as this might result in an outcome adverse to the interests of the appellant. Comments made by defence counsel at the sentencing hearing which took place subsequent to the conviction of the appellant confirmed that the defence was at all times aware of a popular misconception that one cannot have penetrative sex and have a surviving hymen.
Counsel further submitted that it is only in exceptional cases that further evidence should be permitted, as otherwise in every case the court would in effect be asked to carry out a new trial. There was a clear public policy requirement that a defendant bring forward his entire case at trial, and the administration of justice would not be served by any other approach.
Counsel for the respondent further argued that no new facts had come to light in the instant case. The proposed fresh evidence was opinion evidence only which related to facts which were known to the defence at the time of trial. The significance of the factual evidence and its potential to damage the appellant’s case was clearly identified by and adverted to by defence counsel during the second trial. A tactical decision had been made by the applicant’s legal advisors in both the first and second trials not to explore the issue of the medical examination of the complainant for reasons which were entirely consistent with the defence of the applicant’s position and which were in his interest.
In any event, the proposed expert evidence to be offered by Professors Busuttil and Bonnar, together with the evidence of Doctors Holohan and White, was not inconsistent with the version of events given by the complainant in evidence. While counsel for the appellant had characterised the expert opinions proffered on behalf of the defence as excluding the possibility that the complainant’s evidence was true, the reality was that the expert evidence, considered as a whole, did not exclude that possibility.
DECISION
Having considered the medical evidence, including that now sought to be admitted, I am quite satisfied that, taken in its entirety, it does not lend itself to the conclusions contended for by counsel for the appellant, or to the meanings suggested in the opening paragraph of the certified issue, that is to say, that the expert medical evidence is to the effect that as a matter of certainty the rape did not occur, or, that as a matter of probability, no rape occurred. It therefore follows that the strategic decision of defence counsel to stay away from medical issues at the trial was not necessarily erroneous, irrational or negligent. That is not to say that it was not an error to fail to follow up lines of inquiry in relation to the medical evidence prior to the trial, but rather that, in the events which later transpired, the view formed by counsel - albeit arrived at without the benefit of expert opinion - was not necessarily incorrect. Clearly, there does exist a sound medical basis for the view taken by counsel, and it is quite impossible at this juncture to speculate what course the trial may have taken had a different strategy been adopted by the defence.
Secondly, while the jurisprudence in relation to the admission of new evidence was reviewed by the Court of Criminal Appeal when delivering its judgment, it is quite clear from the terms of its judgment that the Court of Criminal Appeal was mindful of the decision of this Court in People (Director of Public Prosecutions) v. Cronin [2006] 2 ILRM 401, in which judgments had been delivered a month previously. While that case was concerned with the raising of new grounds of defence on appeal (whereas the present application seeks to have fresh evidence admitted on appeal) the reality of the present application is that it is being made with a view to raising a different point by way of defence from anything offered at trial. In that sense there is a clear overlap or joint application of the decisions of the Supreme Court in People (Director of Public Prosecutions) v Cronin, and that of the Court of Criminal Appeal in People (Director of Public Prosecutions) v Willoughby to the facts of the present case.
Dealing firstly with Cronin, I expressed in my judgment in that case the view that some error or oversight of substance, sufficient to ground an apprehension that a real injustice had occurred, must be demonstrated before the Court of Criminal Appeal should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to the court to explain why the particular point was not taken. Otherwise cases where a trawl through a transcript long after a conviction is recorded will continue to occur to see if some point can be found or some new case made which competent lawyers at the trial itself did not see fit to raise.
As was noted by Hardiman J. in the course of his judgment in the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Cronin [2003] 3 IR 377 at p. 391:-“The reason for this rule or statement of principle is not at all a technical one, or one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe and satisfactory one.”
This requirement was well illustrated by the facts in People (Director of Public Prosecutions) v. Campbell (Unreported, Court of Criminal Appeal, 4th March, 2005). In that case the appellant sought to argue the non-applicability of the suppression order published pursuant to s.19 of the Offences Against the State Act, 1939 on the basis it could not apply to an organisation which came into existence only in 1997. However, no such case had been made during the trial itself. Instead, a “non- oppositional defence” (as so characterised by counsel for the appellant) had been tendered, in consequence whereof Mr. Campbell obtained the benefit of a reduced sentence and one considerably less than if he had fully contested the offence with which he had been charged. In rejecting the application to argue this new ground in the course of the appeal, I stated as follows at p. 25:-“If this Court were to allow this appeal to be argued in the manner sought, it is quite clear that the exercise would be one totally unrelated to any ruling or determination made at the court of trial. Furthermore, there is not a scintilla of evidence to ground the appeal on the point taken. This Court cannot have judicial notice in some way of matters not dealt with in evidence or borrow evidence from other trials or sentencing hearings for the purpose of determining an appeal against conviction. Thus while there are background historical matters which may explain why this point is being taken now, it does not in any way detract from the requirement to both lead evidence and obtain a ruling on the point from the court below and we do not accept that it was not possible to do so.”
Quite clearly, therefore, it should not be open to an appellant to hold back a point of substance for tactical reasons, or because of a particular strategy determined upon in advance of a trial, and then seek to deploy the point only in the context of a later appeal. Public policy demands that the entire defence be advanced for once and for all at trial and not in a piecemeal fashion in the context of ongoing appeals and challenges.
It is true, as stated by McCracken J. in the Court of Criminal Appeal in this case, that decisions of this Court as to whether fresh evidence should be admitted on appeal have been delivered only in civil cases. In Murphy v. Minister for Defence [1991] 2 IR 161 the appellant in his claim had sought damages for personal injuries sustained while serving in the army and aggravated while undergoing an army fitness test. He lost his case in the High Court, but prior to the hearing of the appeal by this Court, a document, namely an army training circular advising that personnel undergo a medical examination before beginning any exercise programme, came to the appellant’s attention. The appellant sought leave to adduce this document as fresh evidence at the hearing of the appeal.
In the course of the judgment delivered by Finlay C.J., with which O’ Flaherty and Hederman JJ. concurred, it was stated as follows at p. 164:-
“I am accordingly satisfied that the principles applicable are as follows:-
(1) The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;
(2) The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;
(3) The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”
On the criminal side, the Court of Criminal Appeal has considered such applications on numerous occasions, usually when an application is brought under s. 33 of the Courts of Justice Act, 1924 as inserted by s. 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 which provides as follows:- “(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal(‘the court’) on- (a ) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and
(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers should record or transcript, as the case may be, contains,
with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.” In The People (Director of Public Prosecutions) v. O’ Brien (Unreported, Court of Criminal Appeal, 29th January, 1990), the court had no difficulty in accepting that the relevant criteria to determine whether new or additional evidence be heard or received were those outlined by prosecuting counsel in that case as follows:-“Firstly, that the existence of such evidence could not reasonably have been known at the time of trial, secondly that it was not in fact known to the accused or his advisers and, thirdly, that it would materially affect the decision.”
It was suggested that these parameters were extended by the further decision of the Court of Criminal Appeal in Director of Public Prosecutions v. Redmond (Unreported, Court of Criminal Appeal, 6th July, 2004). The facts in that case were that it emerged during the course of the trial that bank records existed which might be very relevant to the defence. However, the initial garda evidence was to the effect that there were no records available, nor did the prosecution produce any such records in advance of the trial. The court held that these records were new evidence which were not available at the trial. Having referred to the O’ Brien case, Denham J. stated at p. 12:-“This Court would adopt and apply the legal principles of that judgment. The three stated criteria are not the sole grounds for allowing new evidence. In the circumstances of this case, there was an apparent misunderstanding prior to, and initially at, the trial, that there were no bank records. This was the position of the advisors to the applicant until the evidence given mid-trial by Mr. Sheeran. Even then there was a limited reference. In the circumstances that the core witness had given evidence and the essence of the case was his evidence, such bank records could materially affect the decision of the jury.
However, in this case the court decides the application on a broader basis. In a sense the prosecution knew of the evidence when Mr. Sheeran went and inspected the file and gave evidence mid-trial. Thus, as in O’ Brien, it would be incorrect to say it could not reasonably have been known to the defence during the trial. But the circumstances were that it was not disclosed to either side before or initially at the trial. The court considers that it would not be fair if the only remedy available to the applicant was to seek a discharge of the jury and a new trial, in the course of the trial. The applicant is entitled to a fair trial.”
In People (Director of Public Prosecutions) v. McLoughlin (Unreported, Court of Criminal Appeal, 24th June, 2002) an application to admit fresh evidence on appeal was granted and a new trial was ordered. However, this is a short ex tempore judgment which turned uniquely on the fact that an account furnished by a witness had been suppressed by the gardaí, a matter which only emerged subsequent to the trial and which prompted the court unhesitatingly to direct that a new trial be ordered.
Ultimately, these issues were fully considered in detail in People (Director of Public Prosecutions) v. Willoughby (Unreported, Court of Criminal Appeal, 18th February, 2005).
In that case, in which the appellant was convicted of the murder of Brian Mulvaney in March, 2000, in Templeogue, Dublin. The deceased had been the victim of a savage assault on the night of his death. In the hours preceding his death he had attended with other youths at a house party in the area where drinks and drugs, including ecstasy, were available. The post mortem carried out by the State Pathologist, Professor Harbison, revealed that while the deceased had consumed alcohol and some small intake of benzodiazepines, the initial report from Professor Harbison did not refer to the fact that the deceased had also consumed ecstasy. This fact emerged from further toxicology analysis of the deceased’s blood. Evidence was given at trial that quite low levels of ecstasy ingestion could prove fatal for a susceptible person in certain instances. This gave rise to an issue at trial as to causation of death. Following an aborted trial, counsel for the accused retained the services of a forensic pathologist from Edinburgh, Professor Anthony Busuttil, who gave evidence at the re-trial. Coincidentally, this is the same expert whose evidence is sought to be admitted on the hearing of the appeal in the instant case. In the course of his evidence at the Willoughby re-trial, Professor Harbison did not alter his view as to the cause of death, i.e. the assault, notwithstanding the new developments which had occurred. He remained of the view that the deceased died of asphyxiation due to accumulation of blood in his lungs resulting from facial injuries. He specifically out ruled any suggestion that blood in the lower lobes of the lungs could have been caused by a drug overdose. Professor Busuttil did not disagree with Professor Harbison as to the mechanism of death, namely, inhalation of blood, but felt the head injuries would not have caused a state of unconsciousness so deep as to suppress the coughing reflex mechanism and felt that ecstasy was a possible contributor to the deceased’s state of unconsciousness. He accepted, however, that there was no pathological evidence to support a contention that the death was ecstasy induced.
Subsequent to the trial and conviction of the appellant, a retired pathologist, Professor Dermot Hourihane, who had followed newspaper reports of the case, contacted the appellant’s solicitors to express concerns as to the cause of death of Brian Mulvaney. He intimated to the appellant’s solicitors that his experience had taught him that blood in the lungs was a classic symptom where ecstasy poisoning had occurred. He was of the view that the cause of death might have been heat-stroke brought on by ecstasy. It was sought to introduce his evidence on the hearing of the appeal.
Having reviewed both the Irish authorities cited above and a number of English authorities, the court considered it could formulate principles appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal as follows at pp. 21-22:-
a) “Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.
b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or required at the time of the trial.
c) It must be evidence which is credible and which might have a material and important influence on the result of the case.
d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”
In refusing the application the court noted that Professor Hourihane in forming his opinion was not bringing to bear any new scientific or medical knowledge which was unavailable at the time of either trial. There was no impediment in the way of acquiring the expert opinion if reasonable diligence to that end had been exercised. Further, on the totality of the evidence, it appeared that Professor Hourihane had prepared his report in something of an evidential vacuum, not having the critical accounts of lay-witnesses, including fire and ambulance crew, who saw Brian Mulvaney on the night of his killing. The other evidence in the case satisfied the court that Professor Hourihane’s evidence, though well-intentioned, could not ultimately be seen as sufficiently ‘credible’ (giving the word its meaning in the particular context) to raise any doubt, yet alone a reasonable doubt, in the minds of the jury as to cause of death.
The Court sees no reason to substitute for the principles enunciated in Willoughby those which are contained in the English Criminal Appeal Act, 1968 as amended. Mr. O’ Lideadha has, wrongly in the opinion of the Court, characterised the “Willoughby principles” as rigid and inflexible preconditions to the making of an application for the admission of new evidence. In the view of the Court, the ‘saver’ for exceptional circumstances defeats this submission. While the requirement for “exceptional circumstances” may be seen as setting the bar at a fairly high level, the policy considerations to which reference has already been made demand no less. The entire criminal justice system would be incapable of functioning if every trial was subject to a re-run on new grounds or new evidence in an appellate court. Thus it is entirely reasonable to insist upon a “due diligence” test in respect of evidence which was known to exist, or which could reasonably have been obtained at the time of trial but was not. Equally, it can only be seen as entirely reasonable and proportionate to incorporate in the principles a requirement that the proposed new evidence is credible and, if admitted, that it might have a material or important, though not necessarily decisive, influence on the result on the case. The Court is also satisfied that any consideration of materiality must be conducted by reference to all the other evidence at the trial and not considered in isolation.
The application of these principles should not be seen as displacing or negativing in any way the overarching requirement that justice be seen to be done having regard to all the circumstances and facts of the particular case. In this regard, the court is again satisfied that the “saver” contained in the first of the stated principles is adequate to safeguard that particular requirement. No statement of principle in People (Director of Public Prosecutions) v Willoughby is to be seen or understood as abrogating that requirement.
In the present case, all the relevant medical findings and facts were available for evaluation by the defence well in advance of both trials. Expert opinion - and there is no suggestion that it could not easily have been obtained – would have ultimately only have confirmed or left open as unresolved, the view of defence counsel arrived at without the benefit of expert medical opinion at the time the defence strategy was formed. That view was to the effect that there were risks for the defence in elucidating or cross-examining witnesses on the medical evidence. Given the two year gap between the incident and the complaint, the occurrence of a row between the complainant’s boyfriend and the applicant a week or so before the making of the complaint, the absence of any medical evidence which unequivocally supported a complaint of rape, a strategy based on an allegation of a malicious complaint was one clearly warranted on the facts. An informed, professional decision to this effect was made and can not now be unmade simply because that strategy proved unsuccessful.
While ultimately therefore the case may be seen as one bound as much by the principles of People (Director of Public Prosecutions) v Cronin [2006] 2 ILRM 401 as those of People (Director of Public Prosecutions) v Willoughby (Unreported, Court of Criminal Appeal, 18th February, 2005), the outcome must be to the same effect and I would uphold the decision of the Court of Criminal Appeal that the application herein be refused and dismiss the appeal.
I would therefore answer the questions raised in the certificate in the following manner:-
(a) The Court of Criminal Appeal was correct in refusing to admit the expert evidence sought to be adduced by the applicant. I do not accept that that the medical evidence sought to be adduced is to the effect outlined in the certified question, that is to say that, either as a matter of certainty or probability, no rape occurred.
(b) The criteria for deciding whether to admit fresh evidence on the hearing of an appeal are those set out by the Court of Criminal Appeal in People (Director of Public Prosecutions) v Willoughby. There are no exceptional circumstances in this case which persuade me that leave should be granted to allow further evidence on the hearing of the appeal.
(c) It is not necessary, for the purpose of complying with the requirements indicated in People (Director of Public Prosecutions) v Willoughby, to assert or establish unreasonable, irrational, illogical, or negligent conduct of the defence at the trial.
