DPP v O'Callaghan

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 18 December 2000
• Neutral Citation: 2000 WJSC-CCA 3113
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 19 of 1999]
• Date: 18 December 2000

2000 WJSC-CCA 3113

THE COURT OF CRIMINAL APPEAL

Hardiman, J.

O'Sullivan, J.

O'Caoimh, J.

CCA No. 19/99

DPP v. O'CALLAGHAN

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

AND

KEITH O'CALLAGHAN

Citations:

CRIMINAL DAMAGE ACT 1991 S2(4)

CRIMINAL DAMAGE ACT 1991 S2(5)

CROSS & TAPPER ON EVIDENCE 9ED 547

CRIMINAL PROCEDURE ACT 1967

KELLY V IRELAND 1986 ILRM 318

BREATHNACH V IRELAND 1989 IR 489

DPP, PEOPLE V QUILLIGAN & O'REILLY 1993 2 IR 305

DUBLIN CORPORATION V FLYNN 1980 IR 357

RYAN V DPP 1988 IR 232

BELTON V CARLOW CO COUNCIL 1997 1 IR 172

HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1982 AC 592

MCILKENNY V CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1980 QB 283

CONNOLLY V DPP 1964 AC 1254

DPP V HUMPHRYS 1977 AC 1

ASH V SWENSON 1970 397 US 436

R V GRANT 1991 7 CR 4TH 388 (CAN)

CHOO ABUSE OF PROCESS & JUDICIAL STAYS OF CRIMINAL PROCEEDINGS (1993)

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY (1999)

Synopsis

Criminal Law

Evidence; res judicata; issue estoppel; applicant convicted at a second trial of causing damage by fire of premises, after first jury discharged due to disagreement; whether finding of judge in first criminal trial that evidence of proposed witness was inadmissible because irrelevant precluded its admission at second criminal trial; whether fact trial ended inconclusively prevents the decision constituting a res judicata.

Held: Conviction set aside; new trial directed on additional basis that question of admissibility of proposed evidence of witness is res judicata.

DPP v. O'Callaghan

CCA: Hardiman J., O'Sullivan J., O'Caoimh J. - 18/12/2000 - [2001] 1 IR 584 - [2001] 2 ILRM 184

During the trial of the appellant on a charge of causing damage by fire to a house, the judge ruled that evidence proposed to be given by a witness for the prosecution was inadmissible as it was more prejudicial than probative. There was a jury disagreement and at the retrial of the appellant the judge was not informed as to the ruling on this evidence by the judge at the first trial. The appellant was convicted and appealed. At the appeal hearing the central issue was whether the finding by the judge on the issue at the first trial precluded admission of that evidence at the retrial. Hardiman J, delivering judgment, held that it was not necessary to decide whether the proposed evidence was relevant or whether it was more prejudicial than probative. Where issue estoppel arose, it was not because the first decision was necessarily right, but because it must be taken as correct. The conviction would be set aside and a re-trial ordered. Circumstances may arise in the new trial that any prima facie irrelevant evidence may become relevant.

1 JUDGMENT of the Court delivered by Hardiman J. on the 18th day of December, 2000.

2 In this case the Applicant was charged that on the 25th November 1996 at 34 Priory Lawn, Ballybeg, Waterford City, he did without lawful excuse cause damage by fire to a dwelling house contrary to Section 2(4) and (5) of the Criminal Damage Act 1991. He was tried before His Honour Judge McCartan and a jury on the 4th and 5th November 1998 at Waterford Circuit Court. The result of this trial was a disagreement of the jury. The case came on again for trial before His Honour Judge Matthews S.C. and a jury on the 2nd, 3rd and 4th February 1999. On the latter date the Applicant was convicted and sentenced to four years imprisonment. Leave to appeal conviction and sentence was refused.

3 This Court has already indicated that it will treat the application for leave to appeal as the hearing of the appeal, allow the appeal and direct a retrial. The Applicant has been released on bail. The reasons for this decision were generally indicated in an ex-tempore judgment of the 15th day of May 2000. However the Court indicated that it would deliver a written judgment in relation to one aspect of the issues raised in the appeal.

4 Subsequent to the Court reserving judgment, the registrar was able to obtain a copy of the transcript of a relevant part of the hearing before His Honour Judge McCartan. On this basis, the parties were first asked to make further written submissions and the matter was eventually listed for reargument on the 4th day of December 2000.

The Issue - Background

5 When this case first came on for trial, an issue was raised by Counsel for the defence in relation to the proposed evidence of witness no 5 in the Book of Evidence. This witness was the occupant of the house subsequently damaged by fire. The nature of the statement is apparent from the ruling of the learned Judge on the first trial when he said:

"The statement of witness no. 5 suggests that at approximately on a date a month prior to (the 25th November 1996) he called and engaged the woman of the house in conversation indicating, amongst other things, he would like to go out with her and kiss her. He returned on the following morning and was observed the next day as being about the house."

6 The defence application at the first trial was that the proposed evidence of witness no. 5 should be excluded on the basis that it was more prejudicial to the Defendant than probative "in that he is not accused of the activities as outlined in the statement. For the record, he denies them absolutely, and certainly there is a danger that a jury hearing that evidence would perhaps accept it to be true and would be more inclined to concentrate their minds on that than on the matter with which he is charged."

7 A consequential application was also made at the same time, based on the fact that a complaint about the earlier event was given as the reason for the arrest of the Defendant; it was submitted on the same basis that that fact should also be excluded.

8 On the first trial, the Prosecution contended that the evidence was admissible because "it establishes a link between the Defendant and the occupier of the house...it esablishes that there was a link between these two people beforehand and of a very distinct nature."

9 At the first trial, His Honour Judge McCartan set out the effect of the evidence as cited above and ruled:

"I cannot see (that) that establishes any context at this stage nor do I believe it has any probative value. Equally I do not see that it has any prejudicial value in that he merely called by and had an interest in the woman in the house, and it does not establish to me anything to establish an element of prejudice against him. But the central issue is one of relevance, and at this stage it appears on the first read of the statement that in the context of the charge the evidence is not relevant. Consequently I will not allow the evidence to be given, and it is over to the Prosecution clearly to renew their application to have the evidence objected to admitted at any stage."

10 When the matter came on for hearing at the second trial, the same evidence was again objected to. The objection and the ruling on it appear at Book A of the transcript of the second trial. The objection was again put on the basis that the evidence was more prejudicial than probative. Unfortunately, the learned trial judge in this occasion was not informed in any detail of his colleague's ruling on the first trial. All that was said was:

".........your Lordship's colleague dealt with the matter indicating that when the Guards gave evidence, their reason for arresting Mr O'Callaghan, in very broad terms when a complaint had been made and that that was evidence that should go in but, certainly in relation to the reason for arresting and so forth would be a reasonable approach My Lord."

11 In other words, the learned trial judge on the second trial was told that his colleague had required editing of the reason for the arrest but was not told of his more fundamental ruling that the evidence of witness no. 5 was inadmissible on grounds of irrelevance.

12 The learned trial judge in the second trial dealt with this matter at the same time as other objections to evidence which was in the nature of hearsay. His ruling, in so far as it is relevant to this issue is spread over a number of locations at pages 7 and 8 of Book A of the Transcript: He said:-

"It seems to me you have here somebody, who it is alleged by this person, somebody late at night gets into her house. He is unwelcome to say the least, and she is frightened. He wants her to go out with him, and that house is subsequently burnt down by the accused. I think these are pertinent matters which properly have to be thrashed out on credibility first and foremost. It is a matter that goes to possible motive. The young man is apparently rejected; I don't know why or how. The jury have to be warned about the extent of the importance they put on it. It is part of the res gestae. It may not be as bad as all that."

13 Later the learned trial judge said:

"I would be blunt up front and tell (the jury) this guy pushed his way into the house and she was frightened and a bit upset and that is as far as it goes. It is not the beginning and end of everything just because the house was burnt down, that he was in any way connected with that. Give whatever weight you think but don't go overboard on it. So I think it is relevant to the res gestae of the thing. These things happen all the time. So I think it is relevant to the res gestae of the thing. It is admissible evidence though it is more prejudicial than probative but it is a credibility issue and is very much on the peripheral area of the bones of contention."

14 It is difficult, with respect, to regard this ruling as satisfactory. The last two lines, if they are a correct estimate of the proposed evidence in question, would constitute strong ground for the exclusion of the evidence. The use of the term "res gestae"is unhelpful in elucidating the reason for a decision. Professor Stone...