DPP v Cooke
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 11 May 2009 |
| Neutral Citation | [2009] IECCA 55 |
| Court | Court of Criminal Appeal |
| Date | 11 May 2009 |
[2009] IECCA 55
THE COURT OF CRIMINAL APPEAL
Macken, J.
Hanna, J.
MacMenamin, J.
DPP v O'REGAN 2007 3 IR 805
DPP v HALLIGAN UNREP CCA 4.7.2008 2008 IECCA 1996
DPP v WILLOUGHBY UNREP CCA 18.2.2005 2005 IECCA 4
MURPHY v MIN FOR DEFENCE 1991 2 IR 161
DPP v NAUGHTON UNREP CCA 28.2.2008 2008 IECCA 34
R v PARKS 1961 3 AER 633
DPP v GILLIGAN 2006 1 IR 107
AG HONG KONG v WONG MUK PING 1987 AC 501 1987 2 WLR 1033 1987 85 CR APP R 1677
DPP v MORRISSEY UNREP CCA 10.7.1998 1998/16/5863
HEALY IRISH LAW OF EVIDENCE, 2004
DPP v MEEHAN 2006 3 IR 468
DPP v COLM MURPHY 2005 2 IR 125
DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69
DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871
DPP v CRONIN 2006 2 ILRM 401
DPP v CC UNREP CCA 2.2.2006 2006 IECCA 1
DPP v P (J) 2003 3 IR 550
CRIMINAL JUSTICE ACT 1993 S3(A)
Criminal law - Appeal - Evidence - Application to adduce new evidence at appeal - Principles to be applied - Delay - Charge to jury by trial judge - Whether charge on issue of delay adequate - Whether accused entitled to raise charge to jury as ground of appeal when no objection thereto had been taken at trial - Whether appeal should be allowed.
Facts the accused had been convicted in the Circuit Criminal Court of assault against two complainants and sentenced to a total of ten years imprisonment. The accused applied to the Court of Criminal Appeal for leave to appeal against conviction on the grounds, inter alia, that the trial judge’s charge on the issue of corroboration and on the issue of delay had been inadequate. He also applied to adduce new evidence at the appeal and introduce further grounds of appeal based thereon.
Held by the Court of Criminal Appeal (Macken J, Hanna and MacMenamin JJ concurring) in refusing the application to adduce new evidence and to add consequential new grounds based on it that, given that the public interest required that a defendant bring forward his entire case at trial, exceptional circumstances had to be established before the court of appeal would allow further evidence to be called. The evidence must not have been known at the time of the trial and had to be such that it could not reasonably have been known or acquired. It had to be evidence which was credible and which could have a material and important influence on the result of the case. The assessment of credibility of materiality had to be conducted by reference to the other evidence at the trial and not in isolation. DPP v O’Regan [2007] 3 IR 805 applied.
Held, in refusing the application for leave to appeal, 1, that corroboration could not, as a matter of law, be ousted from a case simply because collusion between the corroborating witnesses had been alleged by the accused. The eye witness evidence of one complainant of the assault of another person, provided that eye witness evidence had been accepted by the jury as being credible and independent, could validly corroborate the evidence of the other complainant. DPP v Gilligan (Unreported, Supreme Court, 23rd November, 2005) applied.
2. That as counsel for the accused had not raised the issue of the trial judge’s charge to the jury on the issue of delay to any significant extent during the trial he was therefore not entitled to raise it as a ground of appeal therefrom, not having raised any exceptional reason as to why he should be allowed to. DPP v Cronin [2006] 3 ILRM applied. That the trial judge’s charge to the jury on the issue of delay was, in any event, adequate.
Reporter: P.C.
Judgment of the Court delivered on the 11th day of May 2009 by Macken, J.
This is the applicant's application for leave to appeal against conviction. He was convicted on the 28 th February 2007 and on the 1 st March 2007 of a total of 42 counts of assault in respect of two different complainants, the offences taking place, in the case of one complainant, between 1974 and 1978, and in respect of the other, between 1976 and 1978. The applicant was sentenced on counts 22-26 to one year imprisonment in respect of each of these, to run consecutively one to the other, on counts 38-42 to one year in respect of each of these, also to run consecutively one to the other, this latter five year total sentence to run consecutively to the first five years imposed on counts 22-26. On counts 1-21 and 27-37 the applicant was convicted of one year in respect of each offence, each to run concurrently with the other, and all to run concurrently with the sentence imposed on count 38. The total term to be served therefore amounts to ten years dating from the 30 th March 2007, with a reduction from that ten year total sentence of the time already spent in prison. To complete the picture, the applicant had previously been convicted in December 2002 on the same charges of indecent assault in respect of the same two complainants. That conviction was quashed in May 2006 by this Court arising from the learned trial judge's charge to the jury in that trial.
The applicant has listed a significant number of grounds of appeal against conviction, 13 in all, but some of the different grounds, in reality, overlap. For example grounds numbers 1-3 all concern the question of corroboration. This application is, at this time, against conviction only, as is usual. It is appropriate to set out a general description of the groups of grounds, which are as follows:
1 Corroboration (grounds 1-3)
2 Complaints concerning the inadequacy of the learned trial judge's charge (grounds 4, 5, 8, 9, 10, 11, and 12)
3 The absence of certain materials (ground 6(1) and (2))
4 The manner and content of the cross-examination of the applicant (ground 7)
5 The perversity of the judge's charge (ground 13)
At the commencement of the hearing of this application for leave, on the 21 st July 2008, senior counsel for the applicant, properly notified the Court that the two main grounds of appeal both arise from the learned trial judge's charge especially as concerns the two issues of delay and corroboration, and without formally conceding any of the other grounds of appeal, accepted that these are encapsulated in, or arise in consequence of or in connection with the two main grounds.
Counsel also indicated that she had been briefed in the matter only a short time previously, but had consulted with her instructing solicitor and with the applicant, and, upon enquiry of the Court, indicated that her client was fully satisfied to proceed with his appeal. Later in the course of the hearing however, counsel notified the court of her client's request to have the application adjourned after all, to a subsequent date. Counsel for the applicant having presented the applicant's case with admirable clarity and in a highly competent and professional manner, it was not immediately clear to the Court why the applicant wished to adjourn the application, but in circumstances where counsel had been briefed only a very short time previously, the Court, exceptionally, permitted the adjournment, and the matter came on for hearing on the adjourned date, the 23 rd February 2009.
After the adjournment, and before the resumption of this leave application, by notice of motion dated the 28 th day of January 2009, the applicant sought leave to adduce new evidence and, in consequence, to add several new grounds of appeal. The reliefs sought are in the following terms:
(1) Leave to adduce new evidence in the form of extracts from a book entitled "Playing in the Dark" written by S. K. McG. (with Rosie Dunn), one of the complainants to the prosecution of the applicant, in support of the grounds of appeal already lodged and the new grounds of appeal sought to be relied upon which book has been published since the trial and conviction of the Applicant.
(2) Leave to add and rely upon the following further grounds of appeal at the hearing of the above entitled Appeal:-
(a) A further and new allegation of anal rape made by the complainant S. McG. in the book "Playing in the Dark" never made heretofore casts serious doubt upon the credibility of her testimony and thereby renders the convictions of the Applicant unsafe.
(b) The fact that this allegation of anal rape arises in circumstances where S. McG. first discussed this assertion with other complainants at the trial.
(c) The vivid and detailed description of S. McG. observing the Applicant in the Intensive Care Unit of St. James Hospital in or about 1983 is manifestly false. This casts considerable doubt upon the reliance to be placed upon the credibility of any allegations made by this Complainant.
(d) Given the Joint Trial and conviction of the Applicant relating to counts concerning two complainants and the reliance placed by the Prosecution on the evidence of each complainant as giving support to the evidence of the other, all of the convictions of the Applicant are thereby rendered unsafe.
This notice of motion is grounded on several affidavits, sworn by the applicant on the 28 th January 2009, 6 th February 2009, and the 23 rd February 2009, and by his solicitor Gregory F. O'Neill, on the 28 th day of January 2009 and the 20 th February 2009. The application is opposed by the respondent and an affidavit was sworn on his behalf by Inspector Gerard Kelly on the 23 rd February 2009.
The application to adduce new evidence and add further grounds is based exclusively on extracts from the above book, authored, or co-authored, by one of the complainants in the trial. The publication of this book had become known to the respondent who notified the applicant's solicitor of the fact of intended publication....
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