DPP v D. O'T

• Jurisdiction: Ireland
• Judgment Date: 10 December 2003
• Date: 10 December 2003
• Docket Number: [C.C.A. No. 148 of 2001]
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[C.C.A. No. 148 of 2001]

The People (Director of Public Prosecutions) v. D.O'T.

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

D. O'T.

Accused

Cases mentioned in this report:-

O'Leary v. The Attorney General [1993] 1 I.R. 102; [1991] I.L.R.M. 454.

The People (Attorney General) v. Byrne [1974] I.R. 1; (1973) 110 I.L.T.R. 17.

The People (Attorney General) v. O'Callaghan [1966] I.R. 501; (1966) 102 I.L.T.R. 45.

Ryan v. Director of Public Prosecutions [1989] I.R. 399; [1989] I.L.R.M. 333.

Woolmington v. Director of Public Prosecutions [1935] A.C. 462; [1935] All E.R. (Rep.) 1; 104 L.J.K.B. 433; 153 L.T. 232; 51 T.L.R. 446; 79 Sol. Jo. 401; 25 Cr. App. Rep. 72; 30 Cox C.C. 234.

Criminal law - Trial - Presumption of innocence - Onus of proof - Charge to jury - Whether necessary to state presumption of innocence in charge to jury - Whether onus of proof on prosecution in all aspects of charge or merely where difference between prosecution and defence.

Application for leave to appeal.

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by Hardiman J., infra.

The accused was tried before the Central Criminal Court (Butler J.) on the 23rd, 24th and 25th January, 2001, and convicted of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, attempted rape and three counts of sexual assault contrary to s. 2 of the Act of 1990.

The accused applied to the Court of Criminal Appeal for leave to appeal by notice dated the 6th July, 2001.

The application was heard by the Court of Criminal Appeal (Hardiman, Lavan and De Valera JJ.) and treated as the hearing of the appeal on the 28th July, 2003.

The accused was convicted by the Central Criminal Court where, in his charge to the jury, the trial judge did not refer to the presumption of innocence. After requisitions were raised, the trial judge recharged the jury to the effect that "there is a presumption of innocence and it is a very serious presumption". The trial judge then in outlining the onus of proof made reference to the burden of proof being on the prosecution on every question where there was a difference between the prosecution and the defence. The accused sought leave to appeal on the grounds, inter alia, that the trial judge had failed to direct the jury on the presumption of innocence and failed to charge the jury correctly.

Held by the Court of Criminal Appeal (Hardiman, Lavan and De Valera JJ.), in allowing the appeal and ordering a retrial, 1, that the presumption of innocence was not only a right in itself but the basis of other aspects of a trial in due course of law. A charge to the jury should refer to the presumption of innocence setting out that it was a basic, constitutionally guaranteed condition of trial in due course of law. The importance of the presumption of innocence should be explained both as a right of the accused and as a fundamental postulate of a criminal trial in due course of law. The presumption and its relationship to the evidential rules regarding the burden and standard of proof should also be explained. A single reference to the presumption of innocence in a charge to the jury setting out that the presumption exists and that it was a serious presumption was inadequate.

O'Leary v. The Attorney General [1993] 1 I.R. 102and The People (Attorney General) v. Byrne[1974] I.R. 1approved. The People (Attorney General) v. O'Callaghan[1966] I.R. 501 considered.

2. That the onus of proof was on the prosecution at all times and not only where there was a difference in the account being put forward by the prosecution and the defence and the jury should be charged to this effect. The onus of proof was misstated where the charge was capable of being interpreted as suggesting that there was some onus on the accused to establish such a "difference".

Woolmington v. Director of Public Prosecutions [1935] A.C. 462 followed.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the Court of Criminal Appeal was delivered by a single member.

Hardiman J. 10th December, 2003

The accused was tried before the Central Criminal Court between the 23rd and 25th January, 2001. There were five counts in the indictment preferred against him, namely rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990, attempted rape and three counts of sexual assault between the 1st January, 1998, and the 21st October, 1998. The accused was convicted unanimously on all counts other than the count of attempted rape, in respect of which he was convicted by a majority of ten to two. He received a sentence of six years' imprisonment on the count of rape, four years on the count of attempted...