DPP (prosecutor) v Conmey

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 22 November 2010
• Neutral Citation: [2010] IECCA 105
• Date: 22 November 2010

DPP v Conmey

APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

MARTIN CONMEY

Applicant

[2010] IECCA 105

Hardiman J.

Budd J.

de Valera J.

001 CCA/2000

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Appeal

Miscarriage of justice - Newly discovered facts - Duty of disclosure - Non-disclosure of evidential material - Applicant convicted on circumstantial evidence - Undisclosed prior inconsistent statement by main witness - Statement inconsistent with prosecution case - Dramatically contrasting statements - Account given at trial placing applicant at scene - Delay in bringing appeal - Whether statements were undisclosed - Whether conviction unsafe - Whether miscarriage of justice may have occurred - Whether new material might have raised reasonable doubt in minds of jury - Whether possible to assess conflicting accounts of events long passed - Whether failure to disclose was a matter of significance - Whether conviction should be quashed - People (DPP) v Gannon [1997] 1 IR 40; People (DPP) v Meleady [1995] 2 IR 517; People (DPP) v McCarthy [2007] IECCA 64, [2008] 3 IR 1; People (DPP) v Special Criminal Court [1999] 1 IR 60 followed - Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Company [1882] 11 QBD 55 considered- Criminal Procedure Act 1993 (No 40), ss 2 and 3 -Conviction quashed (001/2000 - CCA - 22/11/2010) [2010] IECCA 105

People (DPP) v Conmey

Facts The applicant herein applied pursuant to s. 2 of the Criminal Procedure Act 1993 for an order quashing his conviction of manslaughter. The applicant submitted that the failure by the prosecution to disclose certain evidential material rendered his conviction unsafe. The applicant was convicted on 14 July 1972 and on appeal his conviction was affirmed. The evidence against the applicant was entirely circumstantial and essentially relied on proving that he was present in a particular area within a 15 minute timeframe. The nub of the prosecution case was that the applicant was present with a co-accused in that other person's vehicle at a particular time and in a particular location. Evidence was given by witnesses at the trial to the effect that the applicant was present at the relevant time and in the relevant vehicle. However, one of those witnesses was treated as a hostile witness and was cross-examined by the prosecution at the trial on the basis of an earlier sworn statement. Those two witnesses when they were first approached by the gardai had in fact failed to place either the car or the applicant in the relevant location at the relevant time. In fact one of the witnesses told the gardai that no car passed at the relevant time. However, the evidence given by those witnesses at the trial was quite different from their first statements, those first statements tending to favour the applicant. It was submitted on behalf of the applicant that the undisclosed statements of the aforementioned witnesses amounted to newly discovered facts and those earlier statements were at variance with the prosecution case against the applicant. The respondent submitted that it was not certain that the initial statements were undisclosed and in fact may have been disclosed. However, the applicant's junior counsel and solicitor at the time of the trial gave evidence for the purposes of this application of having no recollection of those statements being furnished to them. The only surviving witness gave evidence on the hearing of this application that he was pressurised and intimidated by the gardai into making a statement implicating the applicant.

Held by CCA; Hardiman J. (Budd, de Valera JJ) in quashing the conviction: That the inconsistencies contained within the various witness statements were not explored at the trial because the initial statements were never disclosed to the applicant. The combination of the evidence of the applicant's legal representatives at the time of the trial and the actual conduct of the trial, allowed one to be confident that the earlier witness statements were not in the possession of the defence. There was no doubt but that the original statements made by the witnesses should have been disclosed to the defence. This was a case where facts came to light for the first time after the appeal which showed that there might have been a miscarriage of justice and consequently the applicant's conviction was quashed.

Reporter: L.O'S.

CRIMINAL PROCEDURE ACT 1993 S2

CRIMINAL PROCEDURE ACT 1993 S2(1)

CRIMINAL PROCEDURE ACT 1993 S2(2)

CRIMINAL PROCEDURE ACT 1993 S2(4)

CRIMINAL PROCEDURE ACT 1993 S3(1)

CRIMINAL PROCEDURE ACT 1993 S9(1)

BYRNE & BINCHY ANNUAL REVIEW OF IRISH LAW 1993

DPP, PEOPLE v MELEADY & GROGAN 1995 2 IR 517 1996/3/748

CRIMINAL PROCEDURE ACT 1993 S2(3)

COMPAGNIE FINANCIERE ET COMMERCIALE DU PACIFIQUE v PERUVIAN GUANO CO 1882-3 11 QBD 55

DPP v MCCARTHY & ORS 2008 3 IR 1 2007/19/3965 2007 IECCA 64

DPP & WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60

DPP v GANNON 1997 1 IR 40 1997/3/789

1 JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 22nd day of November, 2010.

2 This is an application pursuant to s.2 of the Criminal Procedure Act, 1993.

3 Section 2, sub-s. 1 of the Criminal Procedure Act, 1993 provides, inter alia:-

"A person-"

4 a ( a) who has been convicted of an offence either-

5 (i) on indictment, or…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

6 b ( b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction …

7 may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction…"

8 Section 2, sub-s.2 of the Act of 1993 provides:-

9 "An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence."

10 Section 2, sub-s. 4 of the Act of 1993, provides:-

11 "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."

12 Section 3, sub-s. I of the Act of 1993, provides:-

13 "On the hearing of an appeal against conviction of an offence the Court may:-

14 (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

15 (b) quash the conviction and make no further order, or

16 (c) quash the conviction and order the applicant to be re-tried for the offence, or…"

17 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,

18 or

19 (b) (i) he has been pardoned as a result of a petition under section 7, and

20 (ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice…

21 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.

22 Section 2 of the Criminal Procedure Act, 1993, introduced an entirely novel jurisdiction. It was "the legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guilford Four and Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case." The learned authors of the Annual Review of Irish Law for 1993 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."

23 Not long after the passage of the Act, as one would expect, the provisions of s.2 were authoritatively interpreted by this Court, in a judgment delivered by Keane J. (as he then was) in The People (Director of Public Prosecutions) v. Joseph Meleady and Joseph Grogan [1995] 2 IR 517. This was another case where it was alleged that an unfortunate non-disclosure of evidential material had rendered a conviction unsafe. The Court was required to construe the Section which it did in a discerning fashion. Keane J. said, at pp.540-541:

"… 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 appealed 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."

24 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. ...