DPP -v- O'Callaghan, [2004] IESC 2 (2004)

Docket Number:132/03
Party Name:DPP, O'Callaghan
Judge:Keane C.J.


Keane C.J.

Denham J.

Murray J.

McGuinness J.

McCracken J.



(at the suit of the Director of Public Prosecutions)APPELLANTAND


JUDGMENT delivered the 16th day of January 2004 by Keane C.J.


This appeal comes before the court as a result of a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924 (hereafter "the 1924 Act") certifying that its decision of the 18th December, 2000 involved a point of law of exceptional public importance. Unusually - it may be uniquely - the certificate was granted on the application, not of the defendant / respondent (hereafter "the respondent"), but of the appellant (hereafter "the D.P.P."). The written submissions filed by the respondent in response to those filed on behalf of the D.P.P. in relation to the certified question raised a preliminary issue as to the jurisdiction of this court to hear an appeal purportedly brought by the D.P.P. from a decision of the Court of Criminal Appeal quashing a conviction and ordering a retrial. This court was of the view that the preliminary issue should be considered and decided by the court before it embarked on a hearing in relation to the certified point.

It should be pointed out at the outset that the attention of the Court of Criminal Appeal does not appear to have been drawn to any possible difficulty that might arise in relation to the granting of a certificate by the D.P.P. in the circumstances of the present case and that, accordingly, the matter was fully argued for the first time in this court. However, while this court is normally reluctant to consider and determine an appeal for reasons which were never the subject of argument or a decision in the High Court, it is clear that where, as here, a serious question is raised as to their jurisdiction to hear the appeal, that issue must be resolved, albeit for the first time, by this court.

The factual background to the case is as follows. The respondent was charged with the crime formerly known as arson at a house in Waterford on the 25th November, 1996. (The offence is now properly described as causing damage by fire to a dwelling house without lawful excuse contrary to s. 2(4) and (5) of the Criminal Damage Act, 1991.) He was tried twice at Waterford Circuit Court in respect of this charge. The jury failed to agree in the first trial before His Honour Judge McCartan and a jury and a second trial took place before His Honour Judge Matthews and a jury. That trial concluded in the recording of a verdict of guilty and the respondent was sentenced to four years imprisonment. The respondent having been refused leave to appeal the conviction and sentence, an application for leave to appeal came before the Court of Criminal Appeal.

In the course of the first trial, the prosecution indicated that they would be calling as a witness a lady named Patricia Purcell. Her evidence, as set out in the Book of Evidence, was that she lived in the house in question from the 11th March, 1992 until about the middle of November, 1996 with her two children. The statement of her evidence recounted an incident on the 29th October, 1996 when a person whom she subsequently identified as the respondent, but who was at that stage a stranger to her, knocked on her front door. He told her that there were some people in her back garden and that he just wanted to let her know that. He then continued to talk to her, asked her for a drink of water and a cigarette, which she gave him, asked her to come out with him which she refused to do, and then attempted to kiss her. Her statement further recounted that he eventually left, but that she saw him on subsequent occasions in the vicinity of her house and that, on another occasion, he knocked on her door.

The defence objected to the adduction of this evidence at the first trial on the ground that it was more prejudicial than probative. The prosecution submitted that the evidence should be admitted as indicating a link of a very distinct nature between the respondent and the occupier of the house alleged to have been burnt. The trial judge ruled that the evidence was not relevant "in the context of the charge". He indicated, however, that the prosecution could renew their application to have the evidence admitted at any stage. On the second trial before His Honour Judge Matthews, the evidence was again objected to, but it would appear that the trial judge was not informed in any detail of the ruling on the first trial. He treated it as relevant on the ground that "it goes to possible motive". He also treated it as "relevant to the res gestae", and admitted it on that ground also but accepted that it was "more prejudicial than probative".

The notice of appeal served on behalf of the respondent set out six grounds of appeal. The first was

That the learned trial judge erred in principle and in law in allowing the witness Patricia Purcell to give evidence that the accused had been stalking her in circumstances where the accused was not charged with any offence in that regard and the prejudicial nature of the evidence given outweighed its probative value.

As to the further grounds of appeal set out in the notice of appeal, it is only necessary to refer to No. 5, i.e.

"That the learned trial judge erred in principle and in law in his direction to the jury in relation to the onus to be discharged by the prosecution and the meaning of the principle of beyond reasonable doubt."

In an ex-tempore judgment delivered on the 15th May, 2000, the Court of Criminal Appeal (Hardiman J., O'Sullivan J. and Ó Caoimh J.) indicated that it would treat the application for leave to appeal as the hearing of the appeal, allow the appeal and direct a retrial. The respondent was also released on bail. While this court was not furnished with any approved transcript of that judgment, we were informed on the hearing of this appeal that the court allowed the appeal on the two grounds to which I have referred. However, in relation to the first of these grounds it indicated that it would deliver a written judgment at a later date.

The judgment of the court setting out its reasons for allowing the appeal on the first ground was delivered by Hardiman J. on the 18th December, 2000. It is pointed out in the judgment that the concept of the res gestae which was invoked by the trial judge had no application to the facts of the present case and that since he appears to have thought that the evidence was of only "slight relevance", the question of whether its prejudicial effect outweighed that relevance should have been addressed. The court then identified the issue with which the judgment was concerned in these terms:

The central issue which this judgment addresses is whether the finding of His Honour Judge McCartan on the first trial that the evidence was inadmissible because irrelevant precluded its admission at the second trial. The [respondent] contended on this appeal that the evidence should be excluded on the basis of issue estoppel or on the alternative basis that to permit it to be adduced at the second trial would be an abuse of process.

The judgment then goes on to consider that particular issue in considerable detail. In addition to the authorities which appeared to the court to bear on the matter in this jurisdiction, the leading cases being Dublin Corporation -v- Flynn [1980] IR 357, Kelly -v- Ireland [1986] ILRM 318, Ryan -v- Director of Public Prosecutions [1988] IR 232 and Breathnach -v- Ireland [1989] IR 489, the court went on to consider a number of authorities from other jurisdictions, i.e. the United Kingdom, the United States and Canada. The court's conclusions are succinctly summarised as follows:

"It is important to emphasise that it has not been necessary for the purpose of this appeal to decide whether the proposed evidence in question is or is not relevant or is or is not more prejudicial than probative. Where issue estoppel arises, it is not because the first decision was necessarily right, but because it must be taken as correct. The whole of the Latin phrase about res judicata is as follows:

'Res judicata pro veritate accipitur'; or, loosely translated, the decided issue is to be taken as correct.

"Accordingly, we will grant leave to appeal, treat the hearing of the application for leave as the hearing of the...

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