Director of Public Prosecutions -v- Piotrowski, [2014] IECCA 17 (2014)

Docket Number:20/10
Party Name:Director of Public Prosecutions, Piotrowski
Judge:Clarke J.
 
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THE COURT OF CRIMINAL APPEAL[Appeal No: CCA 20/10]

Clarke J.

Moriarty J.

White Michael J.

Between/

The People (at the suit of the Director of Public Prosecutions)Prosecutor/Respondentand

Edward PiotrowskiDefendant/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 30th April, 2014.

1. Introduction

1.1 In the early hours of the 25th November, 2007, what, on any view, was a very serious incident occurred at a dwelling house outside a provincial town in the midlands. The house was owned by an Irish national (“Mr. Y”) and had, not long before the incident concerned, been rented to a female Polish national (“Ms. Z"). The defendant/appellant ("Mr. Piotrowski") had previously been romantically involved with the woman concerned. However, their relationship had terminated in August 2007 when Mr. Piotrowski was on leave and had returned to Poland to visit his family. On the occasion of the incident the subject of these proceedings, Ms. Z and Mr. Y, who had by that time commenced a relationship, were in the house together when Mr. Piotrowski gained access.

1.2 In that context, he stood charged on eight counts involving allegations of aggravated burglary, assault causing harm, false imprisonment, aggravated sexual assault and rape. On the 13th October 2009, Mr. Piotrowski pleaded guilty to count no. 2 which involved an allegation of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, against Mr. Y. He pleaded not guilty to the remaining seven counts. On the 24th October, 2009, a jury found Mr. Piotrowski guilty on each of those seven counts.

1.3 A sentencing hearing occurred on the 29th January, 2010. Mr. Piotrowski was sentenced to various terms of imprisonment but most particularly to life imprisonment in respect of each of the counts of rape and the count of false imprisonment against Ms. Z. Mr. Piotrowski has appealed to this Court, both against his conviction on those counts to which he pleaded not guilty and against his sentence on the grounds of severity.

1.4 This judgment is concerned solely with the question of the appeal in respect of conviction with the question of sentence being left over until the issues raised on this aspect of the appeal have been determined. However, before going on to consider the grounds put forward for suggesting that Mr. Piotrowski's conviction in respect of the relevant counts ought be overturned, it is of some importance to note that there was also before the Court, on the occasion of the hearing of the appeal against conviction, a motion in which it was sought by Mr. Piotrowski to introduce further evidence. Having heard that application, the Court indicated that it would not permit further evidence to be tendered but that it would give its reasons for coming to that conclusion at a later stage. The Court should, therefore, start by setting out those reasons.

2. The reasons why further evidence was not permitted

2.1 That the Court has a jurisdiction, under s. 33 of the Criminal Justice Act 1924, as substituted by s. 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, to hear "new or additional evidence" is not doubted. The principles applicable have recently been comprehensively considered in cases such as D.P.P. v. Willoughby [2005] IECCA. 4, The People (Director of Public Prosecutions) v. O'Regan [2007] 3 I.R. 805 and Kelly v. Director of Public Prosecutions [2008] 3 I.R. 697, where the judgment of this Court was delivered by Kearns J. In Kelly, this Court reiterated the following principles, as set out in Willoughby, as representing the law:-

"(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 acquired 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."

2.2 Those principles appear to suggest that, in order for new or additional evidence to be admitted, amongst other things, the relevant evidence must not have been known at the time of the trial and must be such that it could not reasonably have been know or acquired at that time. The reason for that principle, as pointed out in all of the case law, is that if it were to be otherwise, parties could adopt a tactical approach to the evidence which they decided to present at a trial and, if that tactic did not work, seek a retrial on the basis of wishing to run the case again in a different manner by calling different evidence.

2.3 In a subtle argument, counsel for Mr. Piotrowski drew attention to the possibility, by reference to the judgment of the Supreme Court in O'Regan, that it may be appropriate for the court, in exceptional circumstances, to depart from what Professor O'Malley, in "The Criminal Process" (Round Hall, 2009) at para. 23.18, described as a rule which might run the risk of "excessive rigidity".

2.4 Without seeking to define the type of circumstances where it might, nonetheless, be appropriate, in such exceptional circumstances so as to meet the overall interests of justice, to permit new or additional evidence to be led on a criminal appeal notwithstanding that the evidence concerned could or ought to have been available at the trial, the Court was prepared, for the purposes of this application, and without so deciding, to accept that such a possibility might exist.

2.5 In that context, it is necessary to refer to the basis on which it was asserted that new or additional evidence ought be admitted. In an affidavit sworn on the 5th December of last year, Mr. Piotrowski suggested that, after he was arrested and was in custody in connection with these alleged offences, associates of Ms. Z threatened members of Mr. Piotrowski's family in Poland. He stated in that affidavit that, through a contact in prison, he became aware of three conditions imposed on him to avoid such threats being carried out, being that he was (1) to admit the charges, (2) not to give evidence or explain anything and (3) admit to all evidence and not to question same.

2.6 Mr. Piotrowski indicated that he did not inform his lawyers about that situation, that he was forced to remain silent because of the threats to which he referred, and that it was in that context that he gave instructions as to how his defence was to be conducted.

2.7 A number of points bear making concerning that account. Firstly, no independent evidence was put forward in respect of any of the matters referred to nor is there any suggestion that independent evidence might be made available in that regard. The only evidence of the relevant threats and the other circumstances which were said to have led to the approach adopted by Mr. Piotrowski at his trial, is, apparently, the evidence of Mr. Piotrowski himself. Obviously, in that context, the extent to which any credence might be placed on the matters which Mr. Piotrowski puts forward is wholly dependent on the credibility of Mr. Piotrowski's own evidence. But, of course, that was exactly the position that pertained at the trial. Leaving aside some forensic evidence to which reference will be made in due course, the principal focus of the issues which were canvassed at his trial concerned the credibility of the evidence of Ms. Z and Mr. Y, both of whom gave clear evidence of the crimes in respect of which Mr. Piotrowski stood charged. It is fair to say that the defence mounted a sustained attack on the credibility of both of those witnesses giving rise, indeed, to some of the events at the trial of which complaint is made on this appeal. However, Mr. Piotrowski did not give evidence. If he had, then, doubtless, his own credibility would have been a matter which the jury would also have to have taken into account in reaching their assessment. Mr. Piotrowski did not, however, choose to give the jury an opportunity to assess his credibility. In such circumstances, and in the absence of any compelling external and objective evidence concerning the threats of which he now complains, to allow an appeal court to take an allegation (for it was not more than that) about those matters into account would be to invite the Court to now place credibility on Mr. Piotrowski's unsupported evidence in circumstances where he did not choose to allow the jury to reach a conclusion on his credibility at the trial.

2.8 It must also be stated that the approach adopted by Mr. Piotrowski at the trial did not, in fact, conform with the conditions which he asserted were imposed on him as a result of the alleged threats to his family. On his own affidavit evidence, amongst other things, he was required to admit all of the prosecution evidence and not to question same. What in fact happened at his trial was that almost all of the prosecution evidence was strongly challenged as to its credibility. No basis was put forward on behalf of Mr. Piotrowski as to how it could be explained that, by reason of threats, he was forced to comply with conditions (1) and (2), but not condition (3). There was, quite frankly, an inherent implausibility about the account which Mr. Piotrowski sought to give for that very reason.

2.9 In addition, Mr. Piotrowski was, of course, perfectly entitled not to give evidence. It is no criticism of him to note that he did not. However, having made that choice, it did not seem to the Court that it would be appropriate for this Court to have regard to unsubstantiated...

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