DPP v Dutton

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 21 October 2011
• Docket Number: [C.C.A. No.
• Date: 21 October 2011

[2011] IECCA 77,

Court of Criminal Appeal

[C.C.A. No. 192 of 2009]

The People (Director of Public Prosecutions) v. Dutton

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

Prosecutor

and

Graham Dutton

Accused

Cases mentioned in this report:-

The People (Director of Public Prosecutions) v. O'Regan[2007] IESC 38, [2007] 3 I.R. 805; [2008] 1 I.L.R.M. 247.

The People (Director of Public Prosecutions) v. Willoughby[2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005).

Reg. v. Parks [1961] 1 W.L.R. 1484; [1961] 3 All E.R. 633; (1961) 46 Cr. App. R. 29.

Criminal law - Evidence - Appeal - Admissibility of new evidence - Test to be applied - Whether exceptional circumstances to justify admission of new evidence - Whether new evidence capable of being believed - Whether new evidence ought to be admitted.

Application for leave to appeal

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

On the 20th July, 2009, the accused lodged an application for leave to appeal the conviction and sentence imposed by the Dublin Circuit Criminal Court (Judge O'Donnell and a jury) on the 16th July, 2009. By notice of motion dated the 24th May, 2011, the accused sought permission to adduce additional evidence at the hearing of the application.

The application was heard by the Court of Criminal Appeal (Fennelly, Moriarty and Clarke JJ.) on the 20th October, 2011.

The accused and a co-accused were tried together in respect of a number of alleged drugs related offences. The co-accused did not give evidence. However, before the jury were a number of statements of the co-accused made in garda interviews and in a number of memos of interviews the co-accused was recorded as stating that he denied any involvement in the alleged offences and that the accused was not present at the alleged location of the alleged offences. Both accused were convicted and sentenced. The accused appealed and applied to admit additional evidence. The co-accused swore an affidavit in which he reiterated what was in the memos of interviews relating to the accused. The co-accused also said that he now accepted that he was guilty of the crimes of which he was convicted and that he alone was guilty. The prosecutor sought to cross-examine the co-accused to question the credibility of his evidence.

Held by the Court of Criminal Appeal (Fennelly, Moriarty and Clarke JJ.), in admitting the evidence, allowing the appeal and directing a re-trial, 1, that, regarding the admission of new evidence, given that the first and overriding principle was that there was a public interest in seeing an accused bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus was particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources. It would be wrong to interpret the rules regarding the admission of new evidence as being rigid and inflexible and there had to be room for exceptional circumstances.

The People (Director of Public Prosecutions) v. O'Regan[2007] IESC 38, [2007] 3 I.R. 805 applied; The People (Director of Public Prosecutions) v. Willoughby[2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) approved.

2. That the evidence sought to be admitted must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial. The evidence of a co-accused, although known, could not be said to have been available to the accused at the trial.

The People (Director of Public Prosecutions) v. O'Regan[2007] IESC 38, [2007] 3 I.R. 805 applied; The People (Director of Public Prosecutions) v. Willoughby [2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) approved.

3. That the evidence sought to be admitted must be evidence which was credible and which might have a material and important influence on the result of the case. It was not for the court to decide whether the evidence was to be believed or not, but rather whether it was capable of being believed by a jury. The court...