DPP -v- D.O., [2006] IESC 12 (2006)

Docket Number:528/04
Party Name:DPP, D.O.
Judge:Fennelly J. / Hardiman J. / Murray C.J.
 
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JUDGMENT BY: Fennelly J.

THE SUPREME COURT

528/04

Murray C.J.

Denham J,

Hardiman J.

Fennelly J.

McCracken J.

BETWEEN:

D.O.

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Fennelly delivered the

8th day of March 2006

I fully agree with the order proposed by the Chief Justice and Hardiman J. and with the reasons given by the latter that the appeal should be allowed. I also agree with the judgment of the Chief Justice. In the circumstances, it is unnecessary to decide the first point certified by the Court of Criminal Appeal and I refrain from expressing any view on the question of whether the subsequent acquittal of the appellant on charges based on the evidence of complainants whose evidence was admitted in the instant case under the rubric of similar facts, is capable of having an effect on the appeal, whether in the guise of new evidence or otherwise.

JUDGMENT BY: Hardiman J.

THE SUPREME COURTMurray C.J. 528/04

Denham J,

Hardiman J.

Fennelly J.

McCracken J.

Between:

D.O.

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 8th day of March, 2006.

This is an appeal from the judgment and order of the Court of Criminal Appeal. That Court certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision of the 28th July, 2004, refusing leave to appeal against the applicant's convictions of the 2nd June, 2000, involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should lie to this Court. The applicant, who is a primary teacher by profession, was convicted of a number of offences of sexual assault and rape in relation to a boy, D. Part of the evidence led against him was that of two other boys (B and M) who made allegations of sexual assault but not of rape against him. The applicant was convicted on certain counts, including one of rape in respect of which he received a ten year sentence. Subsequent to the convictions the subject of the present appeal the applicant was tried for the offences of sexual assault, comprising the acts of which B and M had given evidence at the trial leading to the applicant's conviction. However, when the applicant was tried on these counts themselves, he was found not guilty by the jury.

The points of law of exceptional public importance identified by the Court of Criminal Appeal were:

(1) Is a conviction rendered unsafe and unsatisfactory where it is procured in part by similar fact evidence of extraneous offences in respect of which the convicted person is subsequently tried and acquitted?

(2) Is similar fact evidence admissible notwithstanding that the proposed evidence contains within it allegations which are contradictory of the prosecution case?

Background.

It is desirable to set out the factual background to this case insofar as it is known to the Court. In large part what follows is based on what was said by counsel on each side on the hearing of this appeal. As will appear there are certain areas of disagreement but they do not appear to be very significant for present purposes.

The applicant has been for many years a teacher in a National School in a country town. In the late 1990s allegations were made against him of sexual offences on pupils over a long period of time. In all there were nine or ten such allegations, made by people of varying ages. It appears that these accusations were disposed of in the following way:

In relation to one count, representing an allegation made by an adult person, the learned trial judge quashed the indictment on the application of the defence, apparently on the grounds of excessive delay.

In respect of two other counts, each representing allegations by adult persons, the Director of Public Prosecutions then entered a nolle proseuqui.

Three allegations were withdrawn by the persons who had made them. In relation to the remaining three allegations, the prosecution applied to sever the indictment so that allegations of rape and sexual assault by a boy, D, would be tried first. This involved leaving over to the later date allegations made by two other boys, B and M. The defence agreed to this and intended themselves, in any event, to apply for severance. The prosecution account of this matter is slightly different; according to State Counsel, the prosecution agreed to a defence request to sever.

The trial of the allegations made by D proceeded. The evidence of the boys B and M was introduced into the prosecution case against the defendant in respect of assaults on D. This was done on the basis that it was "similar fact evidence".

Subsequent to the applicant's conviction on the counts in relation to D, he was tried and acquitted by the jury in respect of the counts in relation to B and M. The incidents which gave rise to these counts were the same as those of which the relevant boys had given "similar fact evidence" at the trials of the allegations in relation to D.

There is, of course, a great deal of law on the topic of similar fact evidence, coming from many Common Law jurisdictions. However counsel on both sides of the present appeal agreed that there was no case from any jurisdiction which their considerable researches could find dealing with the precise factual situation which arises here.

Position of the parties.

For the appellant, counsel said that the significant issue which arose as a result of the subsequent acquittal on the allegations constituting the similar fact evidence related to the safety of the verdict. He was not seeking retrospectively to impugn the detailed exercise of the learned trial judge's discretion to admit the evidence in the circumstances of the case: he was submitting that it should not have been admitted in principle because to do so offended the presumption of innocence. This presumption, he said, applied everywhere except in proceedings where the defendant was charged with these very offences. Only by a conviction in such proceedings would that presumption be displaced. In any event, he questioned whether evidence which was in some respects at variance with that which it was meant to support could be admitted as similar fact evidence.

Counsel submitted that it was not necessary to ask the Court retrospectively to review the learned trial judge's discretion in admitting the evidence. The subsequent acquittal of the appellant was new evidence which of its nature was not available at the time of the trial and this was sufficient to allow the Court to review the safety of the conviction, bearing in mind the acquittals on the other charges and their legal consequence.

State Counsel adopted as her basic position the proposition that at the time of the trial the similar fact evidence was properly admissible in law. It was then for the jury to consider its credibility and its effect, if any, in support of the evidence of the complainant. She said that those two propositions were sufficient to determine the case in her client's favour. Counsel was asked by the Court what the position in law would have been if the acquittals had taken place before the conviction. In that situation, would the evidence of B and M be available as similar fact evidence? State Counsel, on the instructions of her client, declined to take any position on this issue. However she said two things of significance. The first was that she believed that, in practise, the Director would not seek to rely on similar fact evidence which had itself been the subject of a trial leading to an acquittal. However she declined to commit her client to any view as to the admissibility in law of such evidence. Secondly, she said she would open certain English cases which might be of assistance to the Court. In further discussion counsel said that she was asking the Court to look at the exercise of discretion by the learned trial judge leading to the admission of the similar fact evidence, on the facts as they were when the judge exercised the discretion. Asked whether the subsequent acquittals were of any relevance on appeal she said that "Obviously the acquittal is relevant, but it can't be relied on in this appeal". She gave two reasons for this. The first was a repetition of her previous submission that the issue was to be looked at as of the time when the learned trial judge had made the decision to admit the evidence. The second was that a court could not be affirmatively satisfied that the evidence had, in fact, played any role at all in the jury's decision to convict.

Decision on certain issues.

I am unimpressed by the two arguments just summarised. It is of course impossible to be sure what role any particular evidence played in the jury's decision. In the present case, however, there was a very serious issue argued in order to have the similar fact evidence admitted. The evidence was then itself led and was the subject of the portion of the cross-examination of the accused, who gave evidence in his own defence. It therefore appears that the parties, on each side, regarded the evidence as significant.

Even apart from that, in a great many cases where evidence is wrongfully admitted it could be argued that the defendant might have been convicted anyway, if there was any other evidence at all. But this has never been regarded as amounting, in itself, to a reason to refrain from quashing the conviction if apparently significant evidence has been wrongfully admitted.

While it is clear that the learned trial judge must make decisions as to admissibility on the facts as known to him at the time, I do not accept that the Court is precluded from revisiting that decision in the light of new evidence, or information in the form of an order of a court.

Nor can I accept that the fact that the allegations by D and M were tried subsequent to the allegations by B makes it impossible for us to consider the effect of the acquittal on those allegations. The...

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