D.P.P.-v- Catherine Nevin,  IECCA 106 (2010)
THE COURT OF CRIMINAL APPEALHardiman J. 27CPA/08McKechnie J.Birmingham J.APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993Between:CATHERINE NEVIN ApplicantandTHE DIRECTOR OF PUBLIC PROSECUTIONS RespondentJUDGMENT of the Court delivered by Mr. Justice Hardiman on the 22nd day of November, 2010.This is an application pursuant to s.2 of the Criminal Procedure Act, 1993.Section 2, sub-s. 1 of the Criminal Procedure Act, 1993 provides, inter alia:-“A person-( a ) who has been convicted of an offence either—(i) on indictment, or…and who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and( #####i/i##### ) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction …may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction…”Section 2, sub-s.2 of the Act of 1993 provides:-“An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.”Section 2, sub-s. 4 of the Act of 1993, provides:-“The reference in sub-section 1(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.”Section 3, sub-s. I of the Act of 1993, provides:-“On the hearing of an appeal against conviction of an offence the Court may:-(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or(b) quash the conviction and make no further order, or(c) quash the conviction and order the applicant to be re-tried for the offence, or…”Section 9, sub-s. 1 of the Act of 1993, provides:-“Where a person has been convicted of an offence and either-(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice,or(b) (i) he has been pardoned as a result of a petition under section 7, and(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice,the Minister shall, subject to subsections 2 and 3, pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”Construction of Section 2.Section 2 of the Criminal Procedure Act, 1993, introduced an entirely novel jurisdiction. It was, according to the 1993 Annual Review of Irish Law, “the legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guildford Four and Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case.” The learned authors of the Review considered that the statute, together with another passed in the same year, “resulted in enormous changes to the Irish criminal justice system and for that reason their significance should not be allowed to pass without comment at the outset of the [Criminal Law] chapter.”It was of course inevitable that the Section cited above, which introduced such dramatic changes into the criminal law and procedure of Ireland would be authoritatively interpreted by this Court not long after its passage. In a judgment delivered by Keane J. (as he then was), The People (Director of Public Prosecutions) v. Joseph Meleady and Joseph Grogan  2 IR 517, the Court was concerned with an alleged non-disclosure of evidential material, and actual misstatement in court of the effect of that material, and whether it rendered a conviction unsafe. The Court was required to construe s.2 in particular which it did in what we respectfully consider to have been a discerning fashion. Keane J. said, at p.540:“… the Court takes it as clear at the outset that its jurisdiction in a case such as the present is properly invoked where a convicted person who has previously unsuccessfully against his conviction alleges that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction and applies to the Court for an order quashing the conviction.Thereafter, the application is to be treated ‘for all purposes’ as an appeal to the Court against the conviction. In the result, the Court is empowered to affirm or quash the conviction or to order a retrial, as though it were dealing with an appeal by the well established machinery already in existence. There is nothing in the wording of s.2 or s.3 to suggest that the applicant under s.2, in addition to alleging that a newly discovered fact shows that there has been a miscarriage of justice, must satisfy the Court that such a miscarriage has actually occurred before it proceeds to exercise the powers to quash the conviction or to quash and order a retrial.Nor is there any reason for such a requirement: the mischief which this legislation was designed to remedy is not simply the nondisclosure to the Court of trial of facts which, if available, would have conclusively demonstrated the innocence of the accused. It was also to provide redress, hitherto not available, in cases where facts came to light for the first time after the appeal to this Court which showed that there might have been a miscarriage of justice. The power to order a retrial in cases under s.2 would be inappropriate if relief under that Section was only intended to be available to those who could satisfy this Court that miscarriage of justice had actually occurred. It seems clear to this Court that it was also intended to afford relief to those who could point to materials which, if they had been available at the trial, might - not necessarily would - have raised a reasonable doubt in the mind of the jury.”(Emphasis added)This passage, whose citation at some length is absolutely necessary to discover the nature of the jurisdiction now being exercised, appears to me to establish, so far as is relevant to this case:(1) That the applicant need not establish that a miscarriage of justice has actually occurred before proceeding to quash the conviction,(2) That the Act operates to provide redress in cases where facts come to light for the first time after an appeal, which show that there may have been a miscarriage of justice,(3) That s.2 provides redress to an applicant who can point to material which, if it had been available at the trial might - not necessarily would - have raised a reasonable doubt in the minds of the jury.The judgment in the Meleady case immediately became, and has remained, the leading judgment on the construction of s.2 of the Act of 1993. Naturally, however, different cases arising under the subsection, with their infinitely varied facts, have caused the Court, in subsequent decisions, further to discuss the Section. Thus, in The People (DPP) v. Gannon 1 IR 40, the Court emphasised that on an application under Section 2 it :“is required to carry out an objective evaluation of the newly discovered fact with a view to discovering in the light of it whether the applicant’s conviction was unsafe or unsatisfactory.”In D.P.P. v. McCarthy and Others  3 I.R.1, it was held that:“A failure of disclosure must be shown to have important, as distinct from technical or trivial consequences, if a conviction is to be regarded as unsafe”.Finally, for purposes of this case, it may be important to give another citation from the Gannoncase:“… the question whether a newly discovered fact has rendered a conviction or unsatisfactory cannot be determined by having regard to the course taken by the defence at the trial. What the Court is required to do is to carry out an objective evaluation of the newly discovered fact with a view to determining, in the light of it, whether the applicant’s conviction was unsafe and unsatisfactory. The Court cannot have regard solely to the course taken by the defence at the trial.”These various citations appear cumulatively to amount to this. Firstly, the applicant in an application under s.2 need not establish that a miscarriage of justice has actually occurred before a conviction can be quashed. This is because the Act operates to provide redress in cases where facts come to light for the first time after an appeal, which showed that there may have been a miscarriage of justice. Accordingly, the Section provides a redress to an applicant who can point to material which, if it had been available at the trial might - not necessarily would - have raised a reasonable doubt in the minds of the jury. This in turn appears to require a failure of disclosure which is significant, and not merely technical or trivial (still less irrelevant) if a conviction is to be regarded as unsafe.Finally, the question of significance as opposed to triviality of an undisclosed fact or document cannot be determined, or at least cannot be determined solely, by a consideration of the course actually taken by the defence at the trial. It would be a dangerously hypothetical exercise to speculate, having regard to that course, what approach the defence might have taken if they had known a fact which was actually concealed from them at the relevant time. But in an appropriate case it might be proper to consider the defence’s attitude at the trial if, for example, a newly discovered fact arose which however might only have supported a defence which the conduct of the accused’s defence had...
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