DPP v Griffin

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 24 July 2008
• Neutral Citation: [2008] IECCA 112
• Court: Court of Criminal Appeal
• Docket Number: No CCA 106/07
• Date: 24 July 2008

Between/

DIRECTOR OF PUBLIC PROSECUTIONS

-and

CHRISTOPHER GRIFFIN

Applicant

No CCA 106/07

THE COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Criminal procedure - Evidence law - New grounds - Court of Criminal Appeal - Fair trial - Media coverage of trial - Existing grounds - Timing of application - Whether new ground and materials for the basis of the application could be lodged late in the appeal to the Court of Criminal Appeal

Facts: During the course of an application for leave to appeal against conviction, the applicant sought to introduce a bundle of documents relating to media reports of the trial of the applicant. The grounds of appeal related to the failure of the trial judge to guarantee a fair trial to the applicant. The material to be introduced was not governed by the grounds of appeal and the applicant contended that a new ground should be added, reading that the trial was unsatisfactory by reason of media coverage.

Held by the Court of Criminal Appeal (per Macken J.) that the ground proposed was new and brought late in the day and the materials were not furnished to the court on time. There were no exceptional circumstances to require the additional ground to be added and the applications for leave to add the additional ground and materials would be refused.

Reporter: E.F.

1 Judgment of the Court delivered on the 24th July 2008 by Macken, J.

2 During the course of the hearing of the application for leave to

3 appeal against conviction, which took place on the 27th June 2008, Mr. O'Higgins, Senior Counsel for the applicant, sought to introduce a bundle of documents consisting of extracts from certain newspapers and television or radio reports published during or after the trial of the applicant which took place in December 2006 and January 2007. The documents sought to be introduced were of two types: (a) those which had already been the subject of applications for the jury to be discharged made on behalf of the applicant by his then senior counsel in the course of the trial; and (b) others, published variously during the same period as the above publications, or in the course of the Christmas break in 2006 when the trial court was not in session, and the last one published in May 2007 after the applicant had been convicted and sentenced.

4 The above applications for the discharge of the jury on grounds that they might or could have been influenced by the content of the media articles in question were made on three dates, twice on the 14th December, 2006, and once again on the 15th and 19th December, 2006. They covered both newspaper publications and television/radio broadcasts. These applications were all rejected by the trial judge. For the purposes of this judgment it is not necessary, and may be inappropriate at this stage of the application for leave to appeal, to detail the reasons given by the learned trial judge for their rejection. No further application was made, not only in respect of any articles published prior to Christmas 2006, but neither in respect of any subsequent publications.

5 On enquiry as to the relevant grounds for leave to appeal to which this material might relate, grounds (f) (g) (h) and (i) were all referred to. These grounds read as follows:

• "(f) That, throughout the course of the Trial of the Accused, there was extensive press/media coverage of unrelated issues/events which had occurred prior to the Trial and of unrelated events and issues occurring contemporaneously with the Trial and all of which highly compromised and prejudiced the Accused and having regard to the extensive nature of the coverage, the content of the coverage, the cumulative effect of the coverage and the fact that the coverage made a clear and unambiguous link between the Accused, the Trial of the Accused and the said unrelated criminal activities being alleged, the Learned Trial Judge failed in his duty to discharge the Jury despite numerous and repeated requests being made.

• (g) By refusing to discharge the Jury, the learned Trial Judge failed to safeguard and vindicate the constitutional, personal and human rights of the Accused to a fair Trial in due course of law.

• (h) That the learned Trial Judge ignored or disregarded the very serious concerns which were raised by the Defence concerning media/press coverage complained of and proceeded regardless.

  (i) That the Learned Trial Judge erred in law by failing to discharge the Jury when the said coverage intensified to the point at which both the Defence and Prosecution were in agreement as to the requirement for concern."

  None of these, at first glance, appeared to cover the material in question.

6 Whereas in the first instance Mr. O'Higgins informed the court that he wished this additional material to be considered by the court under Ground (f) of the original Grounds of Appeal as lodged, after further exchanges, he accepted that the material was not within ground (f), but submitted rather that he should be permitted to add a

7 new ground, and, wishing to maintain Ground (f) of the original Grounds of Appeal, he proposed that the new ground would read, in substance, as follows:

8 "The trial was unsatisfactory by reason of the media coverage during the trial."

9 Counsel submits that there are two reasons why the new ground should be admitted. The first is that the learned trial judge in dealing with the applications to discharge the jury referred to above, had made it clear that he had no intention of, or had set his mind against, entertaining any application to discharge the jury on the basis of media coverage or on any other basis. Secondly, it is argued that, in light of the manner in which the learned trial judge dealt with the applications actually made on the basis of media coverage in December 2006, senior counsel then acting on behalf of the applicant was precluded by that approach from making any further application.

10 Senior Counsel for the respondent, Ms. Murphy, argues that this is a new ground, not previously notified to or known by the respondent. Nor was it referred to in the applicant's written submission. She contends that in the course of the trial no application of any description had been made to the trial judge in relation to the material sought to be adduced before this court, save the publications referred to at (a) above, and the remaining media publications cannot be brought within any of the existing grounds of appeal. Nor was there, she submitted, any reason why any further applications could not have been made to the trial judge, in light of the earlier applications actually made. She suggested, however, that in the final analysis, it was for this court to determine whether, in the interests of justice, the new ground, together with the materials, should be admitted.

11 Conclusion

12 This application is, in reality, of a hybrid nature. Firstly, a new ground proposed during the course of the leave hearing, and even then late in the day, is now sought to be added to the extant grounds of appeal, in the form set out above. Secondly, it is sought to have admitted into evidence before this court, and resulting from the addition of the new ground, a substantial package of materials not previously before the trial court. These too were furnished only a short time prior to the hearing, both to the court and to the respondent. The court accepts the argument of counsel for the respondent that neither the ground nor the materials (save those coming under (a) above) are referred to in any way in the written submissions dated the 10th June, 2008.

13 As is also very fairly acknowledged by Mr. O'Higgins in the course of his oral argument, no application had been made by senior counsel then acting for the applicant in the trial in respect of any of the articles now sought to be introduced save those the subject of the applications on the 14th and 15th December. That leaves approximately nine or possibly ten additional newspaper, television or radio articles which, on the basis of his argument, Mr. O'Higgins seeks to have admitted. It is therefore clear that they are to form an entirely new plank of the appeal against conviction. In that regard Mr. O'Higgins invited the court to have regard to the jurisprudence arising pursuant to legislation relating to the admission of new evidence, as being of assistance to him, although he did not invoke any particular jurisprudence in that regard.

14 Some of the materials in the bundle sought to be admitted as additional evidence at this stage were the subject of applications on the above dates, are already before the court, and are adequately covered by the extant ground of appeal (f) and related grounds. Nothing therefore turns on those publications.

15 As to the remainder of the materials, and the new ground, there are,

16 in the view of this court, three main reasons why this application should be rejected. They are: (a) the new materials sought to be admitted in evidence at this time fail to comply in a material way with the case law governing the same; (b) there has been no credible reason advanced as to why the new ground was not included as part of the original grounds, and (c) neither the new ground nor the materials now sought to be admitted were the subject of any application or of any ruling during the course of the trial. In the absence of any explanation for this, or any valid reasons advanced for excusing the same, neither is it in the interests of justice that the new ground should be added or the new materials admitted at this time.

17 Dealing first with the application to add a new ground for leave to appeal, the procedure for doing so is found in Order 86 Rule 4 of the Rules of the Superior Courts, which requires an application to made to this court, not less than fourteen days before the date fixed to hear the application for leave to appeal. The normal procedure adopted is for the applicant to file...