DPP v Gannon

• Jurisdiction: Ireland
• Judgment Date: 01 January 1997
• Date: 01 January 1997
• Docket Number: [S.C. No. 186 of 1996]
• Court: Supreme Court

The People (Director of Public Prosecutions) v. Gannon

In the matter of s. 29 of the Courts of Justice Act, 1924, and in the matter of an application pursuant to s. 2 of the Criminal Procedure Act

1993

The People (Director of Public Prosecutions)

Applicant

and

Joseph Gannon

Respondent

[S.C. No. 186 of 1996]

Supreme Court

Criminal law - Appeal - Miscarriage of justice - Newly-discovered facts - Test to be applied in determining whether newly discovered fact rendered conviction unsafe and unsatisfactory - Criminal Procedure Act, 1993 (No. 40), s. 2.

In June, 1988, the applicant was convicted by the Dublin Circuit Criminal Court on charges of rape, indecent assault and common assault and was sentenced to twelve years imprisonment on the rape charge and to lesser concurrent sentences on the other two counts.

The complainant had not made any contemporaneous complaint regarding the rape but had reported it to H.R., a guidance counsellor, approximately six weeks after it had taken place, and had identified the applicant as her assailant three weeks later.

At the trial the only issue was the identity of the assailant and the prosecution case depended entirely on the visual identification evidence of the complainant. The defence did not challenge the complainant on whatever discrepancies there might have been between the description she had given of the assailant in her statement in the book of evidence and the description which she had given in the course of oral evidence.

In August, 1993, two documents which had not been furnished to the applicant before his trial came to light. The first consisted of notes taken by H.R., the guidance counsellor to whom the complainant had first reported the rape, and the second was a report which Garda M.B. had prepared based on the notes she had received from H.R. Both documents contained details of the description given to H.R. by the complainant of the assailant.

The applicant alleged that these documents constituted a newly-discovered fact which showed that there had been a miscarriage of justice and applied to the Court of Criminal Appeal under s. 2 of the Criminal Procedure Act, 1993, for an order quashing his conviction.

The Court of Criminal Appeal concluded that the newly-discovered fact did not render the conviction unsafe and unsatisfactory and, accordingly, dismissed the application and affirmed the conviction. However, the court certified that the decision involved a point of law of exceptional public importance, namely, whether the material that became available after the conviction of the applicant rendered the conviction unsafe and unsatisfactory, having regard to the course that the defence took at trial or otherwise.

Held by the Supreme Court (Blayney, Denham, Barrington, Murphy and Lynch JJ.), in dismissing the appeal and answering the point of law in the negative, 1, that the Court of Criminal Appeal was required to carry out an objective evaluation of the newly-discovered fact with a view to determining in the light of it whether the conviction was unsafe and unsatisfactory.

2. That the Court of Criminal Appeal could not conclude for certain that the advent of a newly-discovered fact would have had no effect on the manner in which the defence was conducted at the trial.

3. That, accordingly, the question of whether a newly-discovered fact had rendered a conviction unsafe and unsatisfactory could not be determined by having regard solely to the course taken by the defence at the trial. Rather the court should have regard to the course the defence might have taken had it been aware in advance of the trial of the existence of the newly-discovered fact, and the possibility that a different approach by the defence might have led to an acquittal.

4. That, in the instant case, since the discrepancies between the description of the assailant in the newly-discovered material and the description given in the complainant's statement in the book of evidence and in her testimony were minimal there was nothing in the newly-discovered material which could have assisted the applicant in any way or enabled the defence to present the case to the jury in any different light.

Cases mentioned in this report:—

The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517.

The People (Director of Public Prosecutions) v. Scannell(Unreported, Court of Criminal Appeal, 18th June, 1996).

R. v. Kulasingham and Sivilingham (Unreported, Court of Appeal (England) (Criminal Division), 27th May, 1994).

Appeal from the Court of Criminal Appeal.

The facts have been summarised in the headnote and are fully set out in the judgment of Blayney J., infra.

On the 17th May, 1996, the Court of Criminal Appeal (O'Flaherty, Keane and Flood JJ.) certified that its decision delivered on the 29th February, 1996, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

On the 3rd July, 1996, the applicant filed a notice of appeal on foot of the certificate of the Court of Criminal Appeal.

Section 2, sub-s. 1 of the Criminal Procedure Act, 1993, provides,inter alia:—

"A person —

• (a) who has been convicted of an offence . . .

  • (i) on indictment . . .

and who, after appeal to the Court [of Criminal Appeal] including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

• (b) who alleges that a new or a newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction . . .

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction . . ."

Cur. adv. vult.

Blayney J.

This is an appeal grounded on a certificate granted to the applicant by the Court of Criminal Appeal pursuant to s. 29 of the Courts of Justice Act, 1924. On the 17th May, 1996, the Court of Criminal Appeal certified that its decision delivered on the 29th February, 1996, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on such point. In order to understand the point of law involved, it is necessary to start by setting out the factual background in the context of which it arises.

On the 15th June, 1988, the applicant was convicted in the Dublin Circuit Criminal Court on charges of rape, indecent assault and common assault. He was sentenced to twelve years imprisonment on the rape count and to lesser concurrent sentences on the other two counts. Leave to appeal was refused.

The applicant applied to the Court of Criminal Appeal for leave to appeal and on the 22nd June, 1990, his application was refused.

At the applicant's trial in the Circuit Court the only evidence against the applicant was that of the complainant. The prosecution case depended entirely on her visual identification of the applicant. At the time of the rape, which occurred on the 25th August, 1987, the complainant was eighteen years of age and was a student at Crumlin College. She did not report the happening of the rape until the 8th or 14th October, 1987, approximately six weeks after it had taken place, and the applicant was not identified by her as the person responsible until three weeks after that.

In August, 1993, the applicant instructed his present solicitors and they wrote to the Chief State Solicitor asking to be allowed to inspect the original investigation file. As a result of their inquiries, two documents, of which copies had not been furnished to the applicant's legal advisers before his trial, came to light. The first consisted of notes taken by Helen Riordan, the guidance counsellor at Crumlin...