DPP -v- Christopher Griffin, [2009] IECCA 75 (2009)

Docket Number:106/07
Party Name:DPP, Christopher Griffin
Judge:Macken J.
 
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Macken, J. Record No: 106/07

deValera, J.

Gilligan, J.

THE COURT OF CRIMINAL APPEAL

Between/

DIRECTOR OF PUBLIC PROSECUTIONS-and-

CHRISTOPHER GRIFFIN

ApplicantJudgment of the Court delivered on the 22nd June 2009 by Macken, J.

This is an application for leave to appeal against conviction brought on behalf of the applicant. He was found guilty of rape and of several sexual offences. The applicant was convicted by a jury on the 18th January 2007 at the Central Criminal Court, sitting at Cloverhill, Dublin, and, after adjournment, was sentenced on the 24th April 2007. This application deals only with the conviction.

The Notice for Leave to Appeal invokes 23 separate grounds. They can, in reality, be divided into general groups which allege that the learned trial judge:

(1) wrongly failed to recuse himself although he had previously represented the applicant professionally;

(2) was wrongly in possession of a security report not previously disclosed to the defence, which report was influential in the conduct of the proceedings, and whose content caused him to be biased against the applicant;

(3) wrongly permitted the trial to proceed at a venue which was inappropriate and prejudicial to the applicant;

(4) wrongly failed to discharge the jury having regard to extensive press/media coverage of the trial which was highly prejudicial to the applicant;

(5) wrongly issued blanket refusals of applications made on behalf of the applicant;

(6) failed to discharge the jury but wrongly permitted the trial to continue in the absence of a material witness; and

(7) inadequately charged the jury in several respects.

Background:

The applicant was charged with 15 separate counts of rape and/or of sexual assault on a young female, on several dates between 1993 and October 2001 at addresses in Dublin, in respect of which the applicant pleaded not guilty.

The evidence tendered by the complainant was to the effect that the applicant was in a relationship with the complainant's mother since in or around 1993. In evidence she said in that year, when she was about eight years of age, the applicant commenced to sexually assault her and the assaults, including rape, continued until 2001, when she was 16. She gave details of the events occurring within that period. All the allegations were vigorously denied by the applicant in evidence.

Written submissions have been filed on behalf of both parties which greatly assisted the court, and the oral hearing before this Court extended over two days, with detailed argument for both parties. All grounds lodged were invoked, but some grounds were clearly of greater importance than others.

The Failure to Recuse Ground:

Little need be said, for example, about this ground which alleges that the learned trial judge wrongly failed to recuse himself when requested at the commencement of the trial in December 2006, on the basis that he had acted for the appellant, approximately ten years prior to the date of the application. The learned trial judge stated, according to the transcript, that he had no recollection of this, having been on the bench for a long number of years and that he would have forgotten about any such event.

The respondent to the appeal points to the fact that the applicant was returned for trial as early as 2003, and matters connected with the trial were listed on several occasions prior to December 2006 when it was listed for hearing, including as late as the 4th December 2006, but despite these several listings, no such application was made, not even prior to when the jury was empanelled on the 11th December 2006.

Conclusion:

The above point, taken by the respondent, is no criticism of counsel then acting on behalf of the applicant, who may not have been alerted to the claim until after the jury was empanelled.

Taking the argument at its highest however from the applicant's point of view, what was said by his then senior counsel at the trial was that the learned trial judge had "apparently" acted for the applicant. It is clear from the transcript of the trial, being the record by which this court must make its decisions, that there was no evidence tendered to support the contention that the learned trial judge had, either apparently or in fact, acted for the applicant, although it must have been possible for the applicant to have clarified this without great difficulty if there was any basis to the claim. He did not do so. Whenever the matter became known to counsel, therefore, the fact remains that no evidence of any description was tendered to support this ground and, on its own, it is baseless, and must fail.

The Security Report Grounds:

Related to the above ground of failure to recuse, however, is a separate ground, not raised in the course of the trial in the manner now sought to be raised and therefore upon which there was no ruling. The Court is urged to conclude that, by reason of the learned trial judge being "wrongly in possession of a security report not disclosed to the defence", and by reason of "special knowledge" which the learned trial judge thereby had concerning the applicant this led to his being biased against the applicant or perceived to be so.

The argument now sought to be made by senior counsel Mr O'Higgins for the applicant, is as follows: the precise manner in which the learned trial judge came into possession of the report was not known; the content of the security report should have been made available to defence counsel at the outset of the case; its content led to the learned trial judge wrongly being in possession of "special knowledge" concerning the applicant; and having regard to the content of the report and the learned trial judge's response or reference to it during trial, there was a reasonable apprehension that the learned trial judge could not be seen to be impartial towards the applicant by ordinary members of the public. He should therefore have recused himself.

Counsel at the trial did argue on an aspect of the report, dealt with below.

Conclusion:

This ground is a good example of a case not made before the trial judge, and now sought to be made in this Court, without seeking to come within the principles for doing so, well established in the jurisprudence. No explanation has been tendered as to why no application for a ruling on this ground was made. The Court is satisfied that it can, and indeed must, resolve this appeal within the principles enunciated by this Court and the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No.2) [2006] 4 IR 329. The applicant has not argued that he is entitled to come within any of the exceptions to those principles. On long established jurisprudence, this Court must confine its review to rulings made in the trial in response to issues actually raised on behalf of the applicant in the court below, the applicant not being permitted to re-run the case before this Court by seeking to raise matters which could have been raised during the trial but which, for whatever reason, were not. In the absence of any argument or submission that this ground may now be raised, on the basis that it comes within any of the exceptions to the application of the principles in DPP v Cronin, supra., this ground cannot now be entertained.

However, even if it could be said that the court should, in the interests of justice, entertain this ground, firstly, the transcript makes it clear that the content or the general nature of the security report was read into the transcript on the 13th December 2006, in the absence of the jury, on the second occasion when senior counsel then acting for the applicant sought to have the jury discharged on the basis of the venue at which the trial was taking place, the existence of the report having been disclosed on the 11th December, the first day of the trial.

Secondly, a decision to act on a security report, as occurred in this case, while a matter within the broad ambit of the administration of justice, forms no part of the adversarial procedure between the Director of Public Prosecutions and an accused. It is an administrative decision made for the purposes of ensuring adequate and appropriate security for all parties involved in the administration of justice, and for the legal process itself. The respondent correctly argues that such a security report must be acted upon by the appropriate parties. That clearly includes the judge having charge of the criminal list, as here, either acting alone or in association with the President of the High Court, or others involved, in ensuring the safety and security of all parties concerned.

There is no evidence apparent from the transcript that the content of the security report or indeed its existence was "influential in the conduct of the trial vis a vis the applicant" as now alleged on his behalf. The content of the report related to matters arising outside the trial itself. It contains no information or detail relating to the trial of the offences themselves, save that the information described in it arose out of complaints originally made by the complainant, and the possibility that, since it was believed that jurors had apparently been intimidated during an earlier trial, such an event might also arise in the context of this trial. The report makes no distinction between one possible group or another involved in any such matters, and the transcript discloses that the learned trial judge himself was alert to this fact because he stated on the first day of the trial, on the 11th December: "The court has had certain advice, which as much bears on one side of the case as the other, as a result of which the matter is going to be held in secure conditions in Cloverhill. Everyone, including counsel, will be subject to airport type screening …" (emphasis added)On the question of bias, this is based on the following argument: (1) in the course of the trial the learned trial judge passed certain comments from which it could...

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