DPP v G

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 01 November 2004
• Neutral Citation: [2004] IECCA 43
• Court: Court of Criminal Appeal
• Docket Number: 128/98
• Date: 01 November 2004

[2004] IECCA 43

COURT OF CRIMINAL APPEAL

McCracken J

Murphy J

Gilligan J

128/98

DPP v. G (W)

Between:

The People at the Suit of the Director of PublicProsecutions

Respondent

AND

W.G.

Applicant

Citations:

DPP V LYNCH UNREP BARRON 27.7.1999 2000/7/2757

DPP V MCDONAGH 2001 3 IR 411

DPP V B 2002 2 IR 246

Abstract:

Criminal law - Appeal against conviction - Guilty plea - Duty of counsel and solicitor to advise client - Whether guilty plea entered in circumstances where applicant in receipt of incomplete and inaccurate legal advice

The applicant pleaded guilty to nine separate counts of sexually related offences. He applied for leave to appeal against conviction on the grounds that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate. At all times up to the date fixed for his trial the applicant maintained to his legal advisors that he was not guilty.

Held by the Court of Criminal Appeal in refusing leave to appeal that there was no doubt that the advice tendered by senior counsel to the applicant was sound and sensible advice and that the applicant was aware that the decision was his and his alone. At all times the applicant was genuinely assured by his legal advisors that they were prepared to fight his case if he so instructed them.

Reporter: R.W.

1 McCracken J.on the 1st day of November 2004

2 On 29 ^th June 1990 the Applicant pleaded guilty before Carney J. to nine separate counts in a lengthy indictment. These separate counts consisted of:-

3 1 Three counts of rape of LAG.

4 2 One count of sexual assault on SG.

5 3 One count of attempted rape of SG.

6 4 Three counts of rape of FM.

7 5 One count of buggery of FM.

8 Sentencing was adjourned and ultimately on 24 ^th July 1998 the Applicant was given a number of concurrent sentences, amounting to twelve years imprisonment.

9 The Applicant seeks leave to appeal on the grounds that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate, and also that he was not given sufficient time to consider whether to plead guilty. It should be noted that at all times up to the date fixed for his trial the Applicant had maintained to his legal advisors that he was not guilty.

10 The Court has had the benefit of affidavits sworn by the Applicant, by his solicitor and by Senior and Junior Counsel who represented him on the day of his plea. His solicitor has exhibited a number of fairly detailed attendances, both on the Applicant himself and on his Counsel. The Applicant and his solicitor were also cross-examined on their affidavits. There is little serious disagreement as to the chronology or indeed as to the advices given to the Applicant. The Court is satisfied that it has a clear picture of the sequence of the events.

11 The Applicant had already consulted his solicitor in relation to matrimonial difficulties when he was charged with these offences. On19 ^th September 1997 his solicitor represented him at Ennis District Court when the prosecution sought certain amendments to the charge sheet and on 23 ^rd October 1997 the Applicant consulted his solicitor in relation to a possible defence that he was out of the country on the date of certain charges. The first lengthy consultation appears to have taken place on 12 ^th January 1998 when the possibility of the Applicant's wife orchestrating the allegations against him was discussed.

12 In March and April 1998 there were a number of meetings between the Applicant and his solicitor, at which the various statements in the Book of Evidence were gone through in detail. At all times the Applicant maintained his innocence.

13 While there was no meeting during this period between the Applicant and Counsel, the solicitor wrote to Senior Counsel asking him to confirm that he would be available and informing him that the case would commence on 29 ^th June. A few days later a copy of the Book of Evidence was sent to both Senior and Junior Counsel and on9 ^th June both Counsel were sent the solicitor's detailed attendances on the Applicant.

14 Included in the Book of Evidence were reports by Dr Mary Davin-Power on LAG and SG. There was no medical report in relation to FM. Thesereports are central to the case being made by the Applicant. In relation to LAG the medical conclusion was:-

"One could only conclude from this examination that LA has had intercourse on several occasions in the past. The hymen was fully broken and she was evidently not a virgin. Unfortunately this finding is confused by the fact that she has had sex with her boyfriend apparently only in the last month. I could conclude that she has probably never had anal sex."

15 In relation to SG the conclusion was:-

"I would conclude from that medical examination that while she may have been touched or fingered in the genital area it is likely that no full penetration of either vagina or rectum had takenplace."

16 On 22 ^nd June 1998 a meeting took place between the Applicant, his solicitor and Junior Counsel, and the Court is satisfied that the solicitor's recollection and attendance notes accurately reflect what took place at that meeting. Junior Counsel told the Applicant that there was a lot of evidence against him including the statements of the threecomplainantsand that the medical reports were consistent with the statements of these complainants. He went on to advise the Applicant that he might face double the sentence if he was found guilty following a trial rather than pleading guilty, but the Court is satisfied that the Applicant was told that his legal advisors would fight the case if those were his instructions. It would appear that at this meeting the Applicant was still placing a lot of emphasis on the attitude and behaviour of his wife. It is relevant that Junior Counsel also told the Applicant that Senior Counsel wished to consult with him and that Senior Counsel's advices would be important. In the event, no meeting with Senior Counsel was arranged until the morning of the trial which had been fixed for the29 ^th of June.

17 On 23 ^rd June some additional evidence was furnished by the prosecution, but it appears to have been of a very formal nature. By letter of 24 ^th June the solicitor sent this additional evidence to both Counsel and confirmed that there will be a meeting with the Applicant and Counsel at 9.30 am on the 29 ^th June, the morning of the trial.

18 The Applicant's account of what happened on 29 ^th June is that he met the solicitor at approximately 9.30 am in the Four Courts, but neither Counsel were present. He states that at about 10.30 am he was told that Junior Counsel would not be appearing and 10.45 am Senior Counsel turned up.

19 The solicitor in evidence concedes that it was certainly after 10 am before he met Counsel, and also gave evidence that Senior Counsel informed him that the original Junior Counsel was unable to appear and that he, Senior Counsel, had arranged for another Junior Counsel to appear, who attended the meeting with him. The solicitor appears to have been unaware of the unavailability of Junior Counsel until that moment. The Court will comment on this aspect of the case later in thejudgment.

20 When the meeting ultimately took place, the solicitor says it lasted...