DPP v Cooke

• Jurisdiction: Ireland
• Judge: MR. JUSTICE GEOGHEGAN
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] IECCA 32
• Date: 15 March 2006
• Court: Court of Criminal Appeal

[2006] IECCA 32

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

Gilligan J.

Dunne J.

Record No. 009/2003

DPP v COOKE

BETWEEN:

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

Respondent

and

EAMON COOKE

Applicant

CRIMINAL LAW:

Appeal

Application to adduce additional evidence - Whether evidence was in existence at time of trial - Whether evidence would probably have important influence on result - Whether evidence apparently credible - Application to rely on additional grounds of appeal - Whether exceptional circumstances rendering it reasonable for additional grounds to be allowed on grounds of justice - Murphy v Minister for Defence [1991] 2 IR 161 and Lynagh v Mackin [1970] IR 180 applied - People (DPP) v Cronin (Unrep, CCA,16/5/2003) followed - Applications refused (9/2003 - CCA - 15/3/2006) [2006] IECCA 32 People (DPP) v Cooke

Facts: The applicant brought a motion before the Court seeking leave to add and rely upon certain further grounds of appeal over and above the grounds already lodged and leave to adduce additional evidence.

Held by the Court of Criminal Appeal in refusing the application that there were no exceptional circumstances which would render it reasonable for any additional grounds of appeal to be allowed. The desired additional evidence would not, as matter of probability, have had any effect on the verdicts.

Reporter: R.W.

1 JUDGMENT of the Court delivered on the 15th day of March 2006 by MR. JUSTICE GEOGHEGAN

2 Pending the hearing before this court of an application for leave to appeal against 33 convictions relating to sexual offences involving four different female persons, the applicant has brought a motion on notice before the court seeking leave to add and rely upon certain further grounds of appeal over and above the grounds already lodged and additionally and more importantly leave to adduce additional evidence of a solicitor who acted for the applicant in connection with the purchase of a house in July, 1987 so as to help to prove that the applicant was not the occupier of the house on dates on which it is alleged that he committed some of these offences in that house. It is submitted on behalf of the applicant that this additional evidence would establish that some of the offences including the most serious one for which the applicant was sentenced to ten years imprisonment could not have taken place as the applicant's occupation of the house is inconsistent with the dates alleged and additionally or alternatively that the credibility of the complainants in relation to all the offences would be damaged by this evidence.

3 There is a further complication in relation to the motion and indeed it is the only aspect that gives the court any concern. On the morning of the hearing of the motion there was produced on behalf of the Director of Public Prosecutions but without being exhibited in any affidavit a statement of one Martin Fahey who claimed he was the vendor of the house in question in the sale to the applicant. The alleged significance of his evidence is likewise the date of the completion of the sale. There is no formal application before this court either by way of a new notice of motion or an amendment of the existing notice of motion and still less is there an affidavit filed on behalf of the applicant seeking to adduce as additional evidence the evidence of Mr. Fahey. No procedural criticism can be made of the applicant in this regard in that the statement as such of Mr. Fahey only came to light on the morning of the hearing of the motion. On a de bene esse basis the court heard submissions from both sides as to whether additional evidence of Mr. Fahey might be admissible. This was always with the view that, if the court thought fit, some formal procedure would be laid down such as an amendment of the existing notice of motion or perhaps a fresh application to be made at the hearing of the application for leave to appeal. However, any kind of a fresh application, whether made by amendment of the existing notice of motion or by a new notice of motion would require the consent of the court and this is a matter which will be ruled on in this judgment.

4 The additional grounds for leave to appeal which the notice of motion seeks to have added can be paraphrased as follows:

5 (a) An allegation that the trial was unsatisfactory and the convictions unsafe because the applicant did not have access to certain transcripts of child care proceedings in the District Court in circumstances where allegedly some of the complainants had given evidence which was at variance with their evidence of the trial.

6 (b) A ground of bias on the basis that a reasonable observer at the trial would have considered that the defence was treated unfairly in that a document entitled "Courts submissions, September 2001" which had been prepared for the purpose of the child care proceedings was allowed to be adduced by the prosecution notwithstanding that transcripts of the child care proceedings had previously been denied to the applicant.

7 (c) Criticism of the trial judge in failing to discharge the jury or otherwise failing adequately to direct the jury in relation to alleged inadmissible evidence consisting of alleged previous misconduct of the applicant.

8 (d) A general criticism of the trial judge's charge.

9 The notice of motion went on to seek leave to adduce the evidence of a solicitor, Tim McEniry, which was to the effect that the house purchase already referred to was closed on the 27 ^th July, 1987 and that the applicant did not receive the keys for some seven to ten days later and that these dates are inconsistent with the alleged dates of some of the offences. A detailed affidavit has been sworn in reply to this motion by Elizabeth Staunton, solicitor in the office of the Chief Prosecution Solicitor. In relation to the transcript of the child care proceedings, Ms. Staunton has sworn in that affidavit that the respondent did not have the transcript and has pointed out that it was within the power of the applicant to seek to obtain the transcript in...