Director of Public Prosecutions v Shaughnessy
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 31 October 2023 |
| Neutral Citation | [2023] IECA 262 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [151/13] |
[2023] IECA 262
The President
Donnelly J.
Edwards J.
[151/13]
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 31 st day of October 2023 by Birmingham P.
. The matter before the Court has had a long and complex history. On 22nd March 2013, following a trial which had commenced on 19th March 2013, the appellant was found guilty by a majority verdict of a count of rape. The rape charge that the appellant faced related to events that had occurred on 26th July 2010.
. By way of brief background, it should be explained that the complainant in the case was a 17-year-old part-time employee of a hotel owned by the appellant. In addition to being a part-time employee of the hotel, she also acted from time to time as babysitter to the appellant's children. The events in controversy occurred in the presidential suite of the hotel. At trial, the case for the prosecution was that, in that suite, the appellant forced himself upon the complainant and penetrated her. At trial, the appellant did not give evidence, but when interviewed by Gardaí – the contents of that interview were put before the jury – he had denied the allegation of rape, but had accepted that kissing and cuddling had occurred. On 10th June 2013, the appellant was sentenced to a term of six years imprisonment, with one year of the sentence suspended. There was also provision for suspension of a further year of the sentence if the appellant participated in the Better Lives programme. The appellant did not avail of this additional period of suspension.
. Following a change in legal representation – this would be far from the last such change – a notice of appeal, dated 10th October 2013, was delivered. The relevant section of the notice of appeal stated as follows:
“The conviction was unsafe and unsatisfactory and ought to be quashed in that:
(i) The trial was unsatisfactory in all the circumstances.
(ii) The [appellant] has also instructed that his previous legal representation failed in numerous material aspects, to adequately or properly prepare and conduct his defence case thereby rendering the conviction unsafe and unsound. These grounds of appeal are filed following a change of solicitor and counsel; as a result, it is not appropriate at this stage to particularise this ground of appeal as it is not possible, at this time, to fully and responsibly advise the [appellant] in relation to this issue and fully advance it as a ground of appeal. The [appellant] expressly reserves the right to further particularise and amplify this ground of appeal.
(iii) The [appellant] reserves his rights ( inter alia, in light of ground (ii) above), to adduce new or additional evidence in the course of the hearing of the appeal as same may be necessary to properly present his appeal.
…
(vii) The [appellant] expressly wishes to reserve the right to modify whether by way of amendment, deletion, or addition these grounds of appeal when he has been fully advised in relation to this appeal by his new legal team which has not yet been done at the time of drafting due to the preliminary stage of the appeal.”
Thereafter, the appellant sought leave by way of a notice of motion to particularise ground (ii) as follows:
“The Appellant's defence was not presented in a satisfactory manner during the course of his trial having regard to material and instructions provided by the Appellant to his legal team prior to and during the course of the trial.”
Particularisation of ground (ii) was permitted.
. The matter came before this Court on 27th February 2020, and this Court delivered judgment on 9th April 2020 ( [2020] IECA 95). The Court identified the grounds being relied on as being those set out at (i) and (ii), as particularised above. For completeness, it should be said that there was also an issue in relation to how corroboration had been dealt with at trial, but this aspect is no longer live. This Court considered in detail arguments that had been advanced relating to the ineffectiveness of legal representation, conducting a comprehensive review of the relevant evidence, and concluded that the appellant had failed to demonstrate that the manner of the defence at trial rendered the conviction unsafe.
. The appellant sought leave and was permitted to bring a further appeal to the Supreme Court.
. The Supreme Court judgment ( [2021] IESC 18) addressed the question of how an appeal in which an issue has been raised as to whether a trial was unsatisfactory and a verdict unsafe because of ineffective representation should proceed. The point was made that an appellate hearing, where there was an issue as to the effectiveness of representation, should not be allowed to morph into a tripartite contest. The Supreme Court set out between paras. 44 and 48 of the judgment what procedure should be followed. The judgment then offered a summary and addressed what was seen as the contest in the present case. For ease of reference, we will set out here that section of the judgment:
“ Summary
49. The accused who alleges incompetence of representation at trial denying him or her a trial in due course of law bears a heavy burden of proof. To reiterate: in our legally aided system, with a free choice of lawyers, it is to be assumed that legal representation at trial is of at least a competent standard. That is what is expected; and a contrary case must be demonstrated by the accused. At a preliminary level, such an allegation must raise a serious issue. What is concerned must be more than a hindsight reanalysis of how perfection of approach might have improved on competence. Criminal trials are full of ups and downs. A point must be identified which potentially demonstrates how a trial went wrong because of some serious want of competence. To use the words of Keane CJ [in] The People (DPP) v McDonagh (2001) 3 IR 411 at 425, the papers lodged must demonstrate at least the potential for demonstrating ‘such a degree of incompetence or disregard of the accused's interests as to create a serious risk of a miscarriage of justice’. There is no necessity to proceed further than a consideration of whatever papers are lodged if it is clear that no realistic case has been made out by an accused that there was incompetence of this level. On analysis by an appellate court, if there is no such realistic case, the application should go no further.
50. If the potential for such a high level of incompetence is initially found to be present, any evidence on which it is based should be analysed as to whether that evidence is believable. There must be credible evidence. That credible evidence may be assessed in the light of such factors as the degree of delay in making the case, the detail with which a claim is made and the extent of any necessary disclosure that ordinarily would be expected. Where there is a contest as to, for instance, drunkenness in court or not, or any claimed failure to pursue an important and central factual instruction with relevant witnesses, and that is explained by the accused's former lawyers or is denied, it will be for the appellate court to consider whether, on ordinary principles, evidence should be heard, in the ordinary way, to resolve a primary clash as to fact. That evidence must be assessed as to credibility. If no credible case is made out whereby a factual scenario potentially amounting to incompetence is actually made out on the evidence, the application should go no further.
51. If a credible case is made out, an appellate court should analyse in the light of the evidence at the trial whether the appellant has made out a sufficient case whereby it may realistically be ruled that the level of incompetence was such that thereby the accused was denied a trial in due course of law. If not, the conviction stands.
The Contest Here
52. Having been convicted in March 2013, Brian Shaughnessy changed his solicitors and the new firm put in a notice of appeal dated 10 October 2013 asserting that ‘his previous legal representatives failed in numerous material aspects, to adequately or properly prepare and conduct his defence’. That notice of appeal continues that on review by the new lawyers, this will be further particularised. If the point was that the complainant was in the presidential suite for two hours but his instructions in that regard were ignored, that could perhaps have been then stated. To the holding notice of appeal, if it might be properly so called, by motion of 3 December 2019, two grounds were sought to be added: that Mr [Willie] Greene's [the barman/night porter's] evidence was incapable of amounting to corroboration; and that the accused's ‘defence was not presented in a satisfactory manner during the course of his trial having regard to material and instructions provided’ by him ‘prior to and during the course of the trial.’ His accompanying affidavit is dated 28 November 2019. That affidavit claimed that Brian Shaughnessy had instructed his legal team as to the alleged importance of times and that this had been ignored. He claims that he had, pre-trial, met his legal team and told them the time the key was validated for entry to the presidential suite. He said that, at trial, his then senior barrister had put it to the young woman in cross-examination ‘that she had been in the room for half an hour and failed to put the issue of the two-hour period to her.’ Nor was this issue of two hours raised with any other witness, he asserts. Mr Greene, however, in cross-examination had indicated the time the key was validated but, it is claimed, too little was made of this. He claims to have protested to the senior barrister that this was important but was ignored.
Implicit is that the complainant should...
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