DPP v D.O'S

• Jurisdiction: Ireland
• Judge: Murray C.J.,Mr. Justice Fennelly
• Judgment Date: 08 March 2006
• Neutral Citation: [2006] IESC 12
• Court: Supreme Court
• Docket Number: [S.C. No. 528
• Date: 08 March 2006

[2006] IESC 12

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

McCracken J.

528/04

DPP v O (D)

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

-v-

D. O.

RESPONDENT

COURTS OF JUSTICE ACT 1924 S29

R v PUDDICK 1865 4 F&F 497 1865 176 ER 662

R v BANKS 1916 2 KB 621 1916 12 CAR 74

BOUCHER v QUEEN 1954 110 CAN CC 263 1955 SCR 16 (CAN SC)

CODE OF CONDUCT OF THE BAR OF IRELAND PARA 9.19

RANDALL v QUEEN 2002 1 WLR 2237 2002 2 CAR 267

O'CALLAGHAN, STATE v O HUAGHAIGH 1977 IR 42

CROSS EVIDENCE 5ED 1979

MAKIN v AG FOR NEW SOUTH WALES 1894 AC 57 1894 58 JP 148

R v BOND 1906 2 KB 389 1906 70 JP 424

DPP v BOARDMAN 1975 AC 421 1974 AER 887

KIELY v MIN FOR SOCIAL WELFARE 1967 IR 267

RE HAUGHEY 1971 IR 217

MAGUIRE v ARDAGH 2002 1 IR 385

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) SUPREME UNREP 9.3.2005

CRIMINAL LAW:

Evidence

Similar fact evidence - Admissibility of similar fact evidence - Probative value of similar fact evidence - Evidence of disposition - Cross-examination as to disposition - Prejudicial questioning - Demeaning nature of questions - Impermissible innuendos as to accused's profile or disposition - Nature of cross-examination - Duty of prosecuting counsel - Standards to be observed - Departure from standards - Inappropriate questioning - Effect of prejudicial questioning on jury - Whether verdict of jury should be set aside - Makin v Attorney-General for New South Wales [1894] AC 57 and Randall v The Queen [2002] UKPC 19,[2002] 1 WLR 2237 followed - Appeal allowed, no retrial (528/2004 - SC -8/3/2006) [2006] IESC 12, [2006] 3 IR 57; [2006] 2 ILRM 61 P

eople (DPP) v O'S(D)

Facts: This was an appeal pursuant to s. 29 of the Courts of Justice Act 1924. The Court of Criminal Appeal identified points of law of exceptional public importance but the appeal was disposed of on a narrower issue.

Held by the Supreme Court (Murray CJ; Denham; Hardiman; Fennelly and McCracken JJ) in allowing the appeal and declining to order a re-trial that the verdict of the jury should be set aside on the grounds that there were such departures from the standards of proper practice to be observed by counsel for the prosecution as to deny the accused the substance of a fair trial. Cross-examination of the appellant was used to portray him as one who "fitted the bill" of a paedophile. This was the use of evidence relating to previous misconduct or character which had been regarded as inadmissible for centuries. It was also unjustified by anything said in the course of the defense case.

Reporter. R. W.

1 JUDGMENT delivered the 8th day of March, 2006 by Murray C.J.

2 This is an appeal from an Order of the Court of Criminal Appeal which certified two points of law pursuant to s. 29 of the Courts of Justice Act, 1924 for the purposes of an appeal to this Court. The facts and circumstances of the case are fully set out in the judgment of Mr. Justice Hardiman including those related to a substantial part of the cross-examination of the accused at the trial by prosecuting counsel. I do not think it necessary to repeat those facts and limited reference to them will suffice. An issue concerning the nature of that cross-examination arose in the appeal before this Court which enables and in my view requires the Court to set aside the verdict of the jury on grounds arising from that issue and it is unnecessary to address the other points of law.

3 On any consideration of the nature and course of the cross-examination of the accused by counsel for the D.P.P., as outlined in the judgment of Mr. Justice Hardiman, one is driven to the conclusion that the jury were improperly influenced by prejudicial questioning and by innuendos that had no admissible or indeed evidential basis.

4 It has long been laid down that the duty of prosecuting counsel is not to obtain a conviction at all costs. Such counsel should not regard himself, or herself, as appearing for a party. He or she should present all relevant evidence to the jury fairly and objectively. Prosecuting counsel is, of course, entitled to present the case for the prosecution thoroughly and firmly and highlight the strength of the prosecution's case or the weakness of the defence. The duty of prosecuting counsel to act fairly and objectively has long been a requirement of the common law system generally in which criminal trials are conducted in accordance with an adversarial procedure. As far back as 1865 in R. ûv- Puddick (1865) 4 F & F 497 at 499, and English Reports 176, 662, it was stated that counsel for the prosecution "are to regard themselves as ministers of justice". This was reiterated in R. ûv- Banks (1916) 2 KB 621, 623 by Avory J. when he cited with approval the aforementioned authority in stating that counsel for the prosecution should regard themselves as ministers of justice "assisting in its administration" rather "than as advocates". More recently the standards to be observed by counsel for the prosecution were referred to by the Supreme Court of Canada in Boucher ûv- The Queen (1954) 110 CAN CC 263 at 270:

"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must...