Director of Public Prosecutions -v- O'Sullivan, [2018] IESC 15 (2018)

Docket Number:80/16
Party Name:Director of Public Prosecutions, O'Sullivan

THE SUPREME COURT[Supreme Court Appeal No: 80/2016]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.




JUDGMENT of Ms. Justice O’Malley delivered the 8th day of March 2018


  1. The presentation of prosecution evidence in a criminal trial is governed by a number of different rules, and it is possible for one piece of proposed evidence to attract differing rules depending on the circumstances in which it is sought to be adduced. Since the objective of the rules of evidence is to ensure a fair trial of the issue of the guilt or innocence of the accused, the rules should ideally be applied consistently with that objective and with each other.

  2. The issues in this case were initially seen by the appellant’s counsel as being primarily related to the prosecution duty in respect of disclosure. On appeal, the case was presented as being more concerned with notice of evidence. The rules applicable to these issues are closely related and may on occasion overlap. On the facts of the case, I have also found it helpful to consider the authorities on rebuttal evidence. The inclusion of references to those authorities should be seen as assisting in understanding the context of the rules, but the conclusions I have come to do not turn on them.

  3. The rules to be considered in the case may be summarised in the following uncontroversial propositions. Many are subject to exceptions, but as this judgment is not intended to be a treatise on the law of evidence I will concentrate only on the aspects relevant to this case.

  4. The prosecution is obliged to give notice of the evidence that it intends to call in a trial. As described by the Court of Criminal Appeal in DPP v. Farrell [2014] IECCA 37, the purpose of giving notice of the evidence to be deployed against an accused is to give him a fair opportunity of answering it, not by mere bare denial but by evidence of his own or by cross-examination of the witness making the allegation. It is for that reason that prior notice is described as an essential aspect of a fair trial. The right to a fair trial is, of course, a fundamental right protected by Article 38.1 of the Constitution.

  5. The prosecution is further obliged to make disclosure of all material in its possession that might undermine its own case or strengthen the defence. These two principles are, therefore, complementary in that notice is required for evidence intended to be used, while disclosure is required in respect of relevant unused material that might assist the defence.

  6. Subject to certain exceptions, the prosecution may not, having regard to the prohibition set out in s. 1(f) of the Criminal Evidence Act 1924, adduce evidence tending to show that the accused has committed or has been charged with other crimes in the past, or is of bad character generally, and, if the accused is called as a witness, may not ask questions in cross-examination to the same effect. If one of the exceptions arises, and such evidence or cross-examination becomes permissible, it is still governed by the test of relevance and by the principle requiring the exclusion of evidence that is more prejudicial than probative. The accused may however be cross-examined about a previous statement inconsistent with his account in the witness box.

  7. The accused may lose the protection afforded by the Act of 1924 if he “drops his shield” by engaging in any of the courses of conduct set out in the section. These include taking steps that have the effect of putting his or her own character in issue. The shield is also lost if proof that the accused has committed or been convicted of the other offence is admissible evidence to show that he or she is guilty of the offence before the court.

  8. A witness other than the accused, whether called by the prosecution or the defence, may be asked questions relating to bad character designed to impugn his or her credibility. Credibility may also be impugned inter alia by reference to the fact that a witness has made a previous statement inconsistent with his or her sworn evidence.

  9. The defence is obliged by statute to give notice if it intends to call alibi evidence. While in general the prosecution is entitled to call rebuttal evidence only if something arises from the defence case that could not have been reasonably foreseen, rebuttal evidence is specifically envisaged as being admissible by the statutory provision dealing with alibi notices. In accordance with that provision, if prosecution evidence is to be called, intended to disprove the alibi, it is a matter for the discretion of the trial judge whether it should be adduced as part of the prosecution case or after the defence evidence.

  10. In all circumstances the trial judge bears the ultimate responsibility of ensuring that the trial is conducted fairly, and should disallow questions or evidence which are irrelevant or for some other reason improper. It is within the discretion of the trial judge to adjourn for an appropriate period of time or to discharge the jury where such action is necessary to ensure fairness.

  11. The question to be determined on the facts of this case is whether or not the prosecution, having been put on notice of an alibi, was obliged to inform the accused of the evidence it intended to deploy in rebuttal.

    Background facts

  12. Two burglaries of domestic dwellings took place in the Sunday’s Well area of Cork on the morning of the 22nd June, 2014. The appellant was interviewed by the gardaí, about three months later, in relation to both offences. He denied involvement and agreed to participate in formal identification parades. At one parade the witness picked out one of the parade volunteers – an undoubted error – but at the other the appellant was identified by the householder as the man she had encountered in her house at about 7.40 am on the 22nd June. The appellant was charged with that burglary, and the identification was the principal evidence intended to be adduced against him.

  13. In interview the appellant appears (going by the submissions) to have said that he was at home at the time of the burglary. At the relevant time the appellant lived with his mother in Barrett’s Buildings, quite close to the burgled house. However a notice of alibi was served by the defence some three months before the trial. It was asserted in the alibi notice that at the time of the offence the appellant had been with his girlfriend in Little Island – a significant distance away – and that he had been in her company from 4.00 pm on the 21st June to about 12.30 on the 22nd.

  14. It may also be noted here that the defence had sent a letter in standard form seeking all material in the possession of the prosecution “touching upon the guilt or innocence” of the appellant.

  15. At the trial, the prosecution adduced its evidence and closed its case. The appellant then gave evidence in accordance with his alibi notice. He confirmed that he lived with his mother in Barrett’s Buildings, but stated that he had been nowhere near Sunday’s Well “on the night of the Saturday going in to the Sunday”.

  16. To deal with the identification evidence of the householder, the defence decided to adduce evidence of the identification parade held in relation to the other burglary in order to demonstrate that errors can be made in such matters.

  17. At the end of the appellant’s evidence in chief, counsel for the prosecution applied for leave to call rebuttal evidence to the effect that a Garda O’Driscoll had called to the appellant’s home at 11.45 pm on the 21st June and had met with the appellant there. The trial judge initially heard the proposed evidence in the absence of the jury. The defence objected to this evidence being adduced before the jury, on the ground that it had not been disclosed to them. The prosecution submitted that they were obliged only to disclose relevant material and that the proposed evidence did not touch upon the appellant’s guilt or innocence, but was relevant only because of the alibi defence. The trial judge took the view that to keep the evidence from the jury would be to pervert the course of justice.

  18. It appears that the appellant then resumed his evidence before the jury and denied having been at home at the time alleged by Garda O’Driscoll. He was cross-examined on, inter alia, the proximity of his home to the burgled house. His girlfriend gave evidence in support of the alibi. Garda O’Driscoll was then called as a rebuttal witness.

  19. From the transcript extracts available to the Court it appears that the evidence of Garda O’Driscoll was that on the night of the 21st June he was on duty carrying out curfew checks on persons who were on bail. Under the system in operation for such checks, such individuals had their details entered in a “curfew book”. The curfew book remained in the station, and before going out the gardaí would print off a sheet (referred to in evidence as a “working sheet”) with the list of names to be checked. They would enter the result of the checks into the curfew book on return to the station.

  20. The curfew book in respect of the appellant was produced in court. It recorded that he had been at home at 1.25 am on the morning of the 20th June, and at 11.55 pm on the night of the same date, and that he had stated to the gardaí that the curfew had been lifted in the District Court on the previous day. It further recorded that during the following day, the 21st June, a complaint had been made at the station that the gardaí were still calling to his home, notwithstanding the lifting of the curfew.

  21. Garda O’Driscoll identified the second last entry in the book as having been made by him, stating that the appellant had been at home at 23.45 on the 21st June. The last entry, by an unidentified person, recorded the fact that the appellant was no longer on curfew. Garda O’Driscoll said that he had called to the...

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