DPP v Edward Piotrowski

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 30 April 2014
• Neutral Citation: [2014] IECCA 17
• Court: Court of Criminal Appeal
• Docket Number: [Appeal No: CCA 20/10]
• Date: 30 April 2014

[2014] IECCA 17

THE COURT OF CRIMINAL APPEAL

Clarke J., Moriarty J., White Michael J.

[Appeal No: CCA 20/10]

Between/

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

Prosecutor/Respondent

and

Edward Piotrowski

Defendant/Appellant

Criminal appeal - Appeal against conviction and sentence - Defendant sought to introduce further evidence - Presumption of innocence - Defence case to the jury - Admissions of fact - Admissibility of evidence regarding any past convictions - Ingredients of offence of sexual assault - Interventions by trial judge - Prejudice - Whether conviction unsafe

Facts Mr. Y, an Irish national, owned a dwelling house. Not long before the incident in question occurred Mr. Y rented said property to Ms. Z, a Polish national. The defendant, Mr Piotrowski had previously been romantically involved with Ms. Z; however their relationship ended when he returned to Poland to visit his family. At the time of the incident, Mr. Y and Ms. Z had commenced a relationship. They were in the house together when the defendant gained access. He was charged on 8 counts involving allegations of aggravated burglary, assault causing harm, false imprisonment, aggravated sexual assault and rape. He pleaded guilty to count number 2, assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997. He pleaded not guilty to the remaining counts, all of which he was found guilty of by the jury. He was sentenced to life imprisonment for the rape and false imprisonment of Ms. Z.

Mr. Piotrowski has appealed both against his conviction on those counts to which he pleaded not guilty and against the severity of his sentence. Mr. Piotrowski sought to introduce further evidence. The Court considered the principles in Kelly v. Director of Public Prosecutions [2008] 3 I.R. 697 which stated exceptional circumstances must be established before the Court should allow further evidence to be called. In an affidavit sworn on the 5th December of last year, Mr. Piotrowski suggested that, after he was arrested and was in custody in connection with the alleged offences, associates of Ms. Z threatened members of his family in Poland. Mr. Piotrowski indicated that he did not inform his lawyers about this and that he was forced to remain silent owing to said threats. The only evidence of such threats being made is the evidence of Mr Piotrowski himself; to that extent such a suggestion is wholly dependent on the credibility of his own evidence. However, Mr. Piotrowski did not give evidence. The Court was more than satisfied that it should not entertain new or additional evidence which was or ought to have been available at trial and which did not come remotely close to a case of exceptional circumstances.

Held Grounds of Appeal: 1. The trial judge did not adequately address the jury on the presumption of innocence - the Court said the presumption of innocence was fully dealt with and there was nothing in the form of the charge which could have confused the jury or left them with an inadequate understanding of the proper approach to be adopted. 2. Alleged failure to properly put the defence case to the jury - there is a duty on a trial judge to fairly put both the prosecution and the defence case to the jury. The trial judge has an obligation to ensure that the jury are assisted in understanding the substance of the case. The Court indicated the defence was properly put to the jury. 3. Formal admissions of fact - the Court was not persuaded that any basis was put forward to suggest that the jury could have been confused as to the effect of the statutory admissions made. The Court was not satisfied that there was anything inappropriate about the questions asked or that the jury could have, in any way, been misled as to the proper approach to their task by the presence of such questions. 4. Evidence regarding past convictions ruled as inadmissible- Mr. Piotrowski claimed he had no past convictions recorded against him, however the judge ruled such evidence inadmissible as the defendant had previously told Garda that he had been convicted of an offence in Poland whereby he spent two months in prison. The Court concluded such hearsay evidence was properly excluded. 5. Trial judge failed to properly explain the necessary ingredients of the offence of sexual assault- there was no distinction between the two elements of sexual assault described and so the Court was not satisfied that there was any need for the trial judge to go further than he did in his charge to the jury. 6. Complaint as to the number of interventions made by the trial judge in the course of the trial- the trial judge has an important role in ensuring that the case is confined to questions which are at least of sufficient relevance to the issues which the jury has to decide on. The Court was not persuaded that any of the grounds raised either individually or cumulatively were sufficient to suggest that the conviction of Mr. Piotrowski was unsafe.

-No legitimate basis for overturning the decision of the jury. Appeal dismissed.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 30th April, 2014.

1 1. Introduction

1.1 In the early hours of the 25th November, 2007, what, on any view, was a very serious incident occurred at a dwelling house outside a provincial town in the midlands. The house was owned by an Irish national (‘Mr. Y’) and had, not long before the incident concerned, been rented to a female Polish national (‘Ms. Z"). The defendant/appellant ("Mr. Piotrowski") had previously been romantically involved with the woman concerned. However, their relationship had terminated in August 2007 when Mr. Piotrowski was on leave and had returned to Poland to visit his family. On the occasion of the incident the subject of these proceedings, Ms. Z and Mr. Y, who had by that time commenced a relationship, were in the house together when Mr. Piotrowski gained access.

1.2 In that context, he stood charged on eight counts involving allegations of aggravated burglary, assault causing harm, false imprisonment, aggravated sexual assault and rape. On the 13th October 2009, Mr. Piotrowski pleaded guilty to count no. 2 which involved an allegation of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, against Mr. Y. He pleaded not guilty to the remaining seven counts. On the 24th October, 2009, a jury found Mr. Piotrowski guilty on each of those seven counts.

1.3 A sentencing hearing occurred on the 29th January, 2010. Mr. Piotrowski was sentenced to various terms of imprisonment but most particularly to life imprisonment in respect of each of the counts of rape and the count of false imprisonment against Ms. Z. Mr. Piotrowski has appealed to this Court, both against his conviction on those counts to which he pleaded not guilty and against his sentence on the grounds of severity.

1.4 This judgment is concerned solely with the question of the appeal in respect of conviction with the question of sentence being left over until the issues raised on this aspect of the appeal have been determined. However, before going on to consider the grounds put forward for suggesting that Mr. Piotrowski's conviction in respect of the relevant counts ought be overturned, it is of some importance to note that there was also before the Court, on the occasion of the hearing of the appeal against conviction, a motion in which it was sought by Mr. Piotrowski to introduce further evidence. Having heard that application, the Court indicated that it would not permit further evidence to be tendered but that it would give its reasons for coming to that conclusion at a later stage. The Court should, therefore, start by setting out those reasons.

2 The reasons why further evidence was not permitted

2.1 That the Court has a jurisdiction, under s. 33 of the Criminal Justice Act 1924, as substituted by s. 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, to hear "new or additional evidence" is not doubted. The principles applicable have recently been comprehensively considered in cases such as D.P.P. v. Willoughby [2005] IECCA. 4, The People (Director of Public Prosecutions) v. O'Regan [2007] 3 I.R. 805 and Kelly v. Director of Public Prosecutions [2008] 3 I.R. 697, where the judgment of this Court was delivered by Kearns J. In Kelly, this Court reiterated the following principles, as set out in Willoughby, as representing the law:-

"(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.

(b) The evidence 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.

(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation."

2.2 Those principles appear to suggest that, in order for new or additional evidence to be admitted, amongst other things, the relevant evidence must not have been known at the time of the trial and must be such that it could not reasonably have been know or acquired at that time. The reason for that principle, as pointed out in all of the case law, is that if it were to be otherwise, parties could adopt a tactical approach to the evidence which they decided to present at a trial and, if that tactic did not work, seek a...