DPP v Griffin
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 18 October 2010 |
| Neutral Citation | [2010] IECCA 102 |
| Court | Court of Criminal Appeal |
| Date | 18 October 2010 |
[2010] IECCA 102
THE COURT OF CRIMINAL APPEAL
Macken, J.
de Valera, J.
Gilligan, J.
COURTS OF JUSTICE ACT 1924 S29(2)
CRIMINAL JUSTICE ACT 2006 S2
COURTS OF JUSTICE ACT 1924 S29
DPP v MADDEN 1977 IR 336
DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006 13 2579 2006 IESC 9
DPP v O'REGAN UNREP CCA 16.6.2006 2006/21/4293 2006 IECCA 82
DPP v HIGGINS UNREP SUPREME 22.11.1985 1985/7/1994
DPP v LITTLEJOHN 1978 ILRM 147
DPP v KENNY UNREP CCA 5.2.2004 2004/15/3526
DPP v KELLY UNREP CCA 11.7.1996 1985/7/1994
COURTS OF JUSTICE ACT 1924 S24
CRIMINAL LAW
Appeal
Point of law - Arise from decision of Court of Criminal Appeal - Contention law in relation to addressing issue of absent witness at trial unclear - Contention law in respect of procedure to be followed upon adverse ruling of trial judge unclear - Approach to addressing issue of absent witness - Whether statement made at trial ruling - Whether points arose from decision of Court of Criminal Appeal - Whether points of exceptional public importance - Whether desirable in public interest to appeal - DPP v Higgins (Unrep, SC, 22/11/1985); Director of Public Prosecutions v Littlejohn [1978] ILRM 147 applied; People (DPP) v O'Regan [2006] IECCA 82, (Unrep, CCA, 16/6/2006); People (DPP) v Kenny [2004] IECCA 2, (Unrep, CCA, 5/2/2004); DPP v Kelly (Unrep, CCA, 11/7/1996) approved; The People v Madden [1977] 1 IR 336; People (DPP) v Cronin (No 2) [2006] IESC 9, [2006] 4 IR 329 considered - Courts of Justice Act 1924 (No 10), s 24 - Criminal Justice Act 2006 (No 26), s 2 - Application refused (106/2007 - CCA - 18/10/2010) [2010] IECCA 102
People (DPP) v Griffin
Facts: At an initial trial on rape and sexual assault charges the jury had been discharged. The mother of the complainant and partner of the applicant had made a statement to the Gardai and was a witness in the first trial for the prosecution. The statement had contained an admission by the applicant which was denied in oral evidence and she had been declared to be a hostile witness. At the second trial a witness order was served on her but she did not appear due to illness. The issue arose as to whether there was an obligation on the trial judge to halt the trial and discharge the jury in these circumstances. The applicant sought a certificate pursuant to s. 29 Courts of Justice Act 1924, as amended and substituted by Criminal Justice Act 2006, that the decision of the Court involved points of law of exceptional public importance. The questions posed related to whether where a witness had given a witness statement probative of the prosecution case and at trial gave evidence materially inconsistent with the statement which was helpful to the defence and declared hostile and was unavailable at a subsequent retrial, whether the evidence could be considered material only to the prosecution. Also the question was posed as to where there was information before the trial judge not available to the prosecution or defence and the trial judge had decided that the trial was to conclude, whether there was an obligation on the defence to make an application to discharge the jury?
Held by the Court of Criminal Appeal per Macken J. that the Court did not accept that any blanket ruling had been given and that the test of a real and serious risk of an unfair trial had not been met. Neither question as formulated arose before the Court. There was no point of law of exceptional public importance arising before the Court. It was not in the public interest that questions be referred.
Reporter: E.F.
Judgment of the Court delivered on the 18th day of October, 2010 by Macken, J.
By a Notice of Motion returnable for the 18 th January, 2010, and arising from the judgment of this Court delivered on the 22 nd June, 2009, the applicant has sought a certificate pursuant to the provisions of s.29(2) of the Courts of Justice Act 1924 ("the Act of 1924) (as amended and substituted by s.2 of the Criminal Justice Act 2006), on the basis that the decision of this Court involves points of law of exceptional public importance, and that it is desirable in the public interest that such questions be certified to the Supreme Court.
The points of law of exceptional public importance set out in the Notice of Motion, as filed, are the following:-
2 "1. In circumstances where:
(a) the witness has given a written statement probative of the prosecution case;
(b) at trial gives evidence materially inconsistent with the statement, which is helpful to the defence and is declared hostile;
(c) is unavailable at a subsequent retrial;
is consideration as to the effect of the unavailability of the witness and/or her evidence to be confined to considering whether the evidence could be considered material only to the prosecution?
2. In circumstances where:
(a) there is information before the learned trial judge not available to the prosecution or the defence; and/or
(b) the learned trial judge states that no matter what application is made the trial is going to proceed to a conclusion;
is there an obligation (on the defence) to make an application to discharge the jury?"
The precise wording of the questions raised are set out above. In the written submissions filed on behalf of the applicant, however, the first question is divided into two parts, which are described as follows:
a "(a) Is there an onus on counsel for the accused to establish that the witness's evidence in question was "centrally supportive of his innocence?";
(b) Is there an onus if the accused requires the witness to give evidence to apply for a warrant to forcefully [sic] bring the witness to court?"
This new question is not raised in the original question posed in the Notice of Motion pursuant to s.29, but the respondent to the application has answered the questions as reformulated in the written grounds of appeal filed on behalf of the applicant, and the Court will deal with the question on that basis, the oral hearing having been adjourned with the possibility of a reformulation of the suggested question.
The issue behind the first question arises where a witness is not available and the trial judge has to decide whether the trial should or should not proceed. In the present case the missing witness was not available, the defence wished the witness to be available and in her absence applied to the trial judge for the trial to be brought to an end. As to the context in which the question arises, it is helpful to adopt a synopsis of the note provided by counsel for the applicant in the written submissions filed, as follows:
(a) The original charges concerned events arising between the years 1993 and 2001. The trial commenced on the 11 th December, 2006 and was adjourned for one day and then continued, and after a relatively lengthy trial, the applicant was convicted in January, 2007 on each of eleven counts, by unanimous verdict of the jury. The charges included both rape and sexual assault. Of particular relevance as a background factor is the fact that this was the applicant's second trial, the first trial having taken place in May, 2006 when the jury disagreed.
(b) Prior to the first trial, the witness in question, the mother of the complainant and, since in or around 1993, the long-standing partner of the applicant, had made a statement to the gardaí. As is stated in the judgment in respect of which this application arises, she was listed as a prosecution witness in the first trial, and also in the Book of Evidence in the second trial. Her original intended evidence for the first trial was comprised in a statement she made to the gardaí on the 8 th January, 2003. That statement included the fact that her daughter, the complainant, had informed her of the alleged assaults and she, the witness, whom the Court will describe as MD, had then taken the complainant to the garda station to make a complaint on the 2 nd or 3 rd January, 2003.
(c) MD's statement of proposed evidence also contained what was claimed by the prosecution to be an assertion by her that when she confronted the applicant with the claims, he admitted having sexually assaulted the complainant.
(d) In the first trial in May, 2006 MD agreed, in her oral evidence, that she had brought the complainant to Store Street Garda Station in early January, 2003 to make a complaint. She did not agree in oral evidence, however, that the applicant had made the above referred to admission. In the first trial, her evidence, as tendered viva voce, was found not to be in accordance with the statement she had made to the gardaí, but was materially different to, and inconsistent with, it. She was, on the application of the prosecution in the first trial, declared by the court to be a hostile witness.
(e) When it came to the second trial, a witness order was served on MD, but she did not appear in response to it, as she was ill.
On behalf of the applicant, on this question, it had been argued at the trial that, having regard to the evidence which, according to the transcript, made it clear that the witness was unfit to come to court, there was an obligation on the learned trial judge to halt the trial and discharge the jury. Counsel for the applicant reminds the Court, on this application, of the following matters: that the charges in question concerned a period between 1993 and 2001 approximately, and that there was, as...
To continue reading
Request your trial
-
Minister for Justice and Others v Adams (No 2)
...- Kenny v An Bord Pleanála [2007] 1 IR 704, Arklow Holiday Ltd v An Bord Pleanála [2008] IEHC 2 , [2007] 4 IR 112, DPP v Griffin [2010] IECCA 102 and OO & BO v Minister for Justice [2011] IEHC 175 applied; Minister for Justice v Rettinger [2010] 3 IR 753 and Minister for Justice v Mazurek [......