DPP v Hannon

JurisdictionIreland
JudgeMr. Justice Hardiman.
Judgment Date27 April 2009
Neutral Citation[2009] IECCA 43
CourtCourt of Criminal Appeal
Docket Number[CCA No. 228 of
Date27 April 2009
DPP v Hannon

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent

and

FEICHÍN HANNON
Defendant/Appellant

[2009] IECCA 43

Hardiman J.

Herbert J.

MacMenamin J.

228/08

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Appeal

Miscarriage of justice - Newly-discovered fact - Admission by complainant that evidence false - Whether applicant entitled to certificate that newly-discovered fact showed miscarriage of justice - Whether requirement existed for state to be culpable in miscarriage of justice - People (DPP) v Pringle (No 2) [1997] 2 IR 225 applied; People (DPP) v Meleady (No 3) [2001] 4 IR 16 and People (DPP) v Shortt (No 2) [2002] 2 IR 696 followed - Criminal Procedure Act 1993 (No 40), s 9 - Certificate pursuant to s 9 granted (228/2008 - CCA - 27/4/2009) [2009] IECCA 43

People (DPP) v Hannon

Facts: The applicant was convicted of sexual assault and had received a four year suspended sentence. Nine years after the allege offence the complainant retracted her allegations and admitted that the evidence given was false in its entirety and resulted from family animosities between the parties. The applicant sought a certificate pursuant to s. 9 Criminal Procedure Act 1993 that there had been a miscarriage of justice. The respondent contended that there was no miscarriage of justice as there was no fault on the part of either the prosecutor, the Gardai or the agents of the state.

Held by the Court of Criminal Appeal per Hardiman J. (Herbert & MacMenamin JJ. concurring), that the applicant was entitled to a certificate, as the fact of the retraction of the allegation and admission as to false testimony was both new and newly discovered given that the complainant had fabricated the allegation.

Reporter: E.F.

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

CRIMINAL PROCEDURE ACT 1993 S9

CRIMINAL PROCEDURE ACT 1993 S9(6)

CRIMINAL PROCEDURE ACT 1993 S1

DPP, PEOPLE v PRINGLE (NO 2) 1997 2 IR 225

COURTS OF JUSTICE ACT 1924 S29

SHORTER OXFORD ENGLISH DICTIONARY 6ED 2007

R (SMEATON) v SECRETARY OF STATE FOR HEALTH 2002 2 FLR 146 2002 AER (D) 115 (APR) 2002 2 FCR 193 2002 EWHC 610 (ADMIN)

DPP v WALL UNREP CCA 16.12.2005 2005 IECCA 140

R (MULLEN) v SECRETARY OF STATE FOR THE HOME DEPT 2004 3 AER 65 2005 1 AC 1 2004 2 WLR 1140

CRIMINAL JUSTICE ACT 1988 S133 (UK)

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 14(6)

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 14(2)

CODE DE PROCEDURE PENALE ART 626 (FRANCE)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SCHED 5

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS SEVENTH PROTOCOL

R (MURPHY) v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AER 763 2005 1 WLR 3516 2005 EWHC (ADMIN) 140

DPP v MELEADY & GROGAN (NO 3) 2001 4 IR 16 2001/8/2025

DPP v SHORTT (NO 2) 2002 2 IR 696 2002/25/6428

1

JUDGMENT of the Court delivered on the 27th April, 2009 by Mr. Justice Hardiman.

2

This is a most alarming and disturbing case. The applicant, Mr. Hannon, who it is now accepted is an entirely innocent man, was despite this all important fact convicted of the offences of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990; and of common assault of the same person on the same date, the 27 th January, 1997. The alleged victim of these offences (neither of which ever took place at all) was one Una Hardester then of Aughrismore, Cleggan, Co. Galway, born on the 1 st October, 1986 now twenty-two years old. At the time of the assault which she alleged, she was approximately ten years and approximately four months old. The applicant, Mr. Hannon, was born on the 14 th August, 1975 and was accordingly some twenty-two years old at the time of the alleged assaults. He is now about thirty-four years of age. There was a history of animosity between the families of the complainant and of the present applicant. This related to disputes about land, rights of way and similar matters, not uncommonly found in country districts. This led to a number of confrontations. Some short time (a matter of days), before the alleged assault, the complainant had been present in court when her father, one Crofton Hardester, had been convicted of assaulting the applicant's father. The Hardester family had arrived form the United States to live in the area some years before.

3

The complainant's allegation of sexual assault and common assault was made in detailed terms. It was conspicuous for its graphic and coherent language and for the correct use of various medical/anatomical terms. After the alleged assault the complainant had arrived, in a muddy and dishevelled state, at the nearby house of a friend and had convinced that friend, a child herself, and her mother, that something untoward had occurred. Despite the absence of any medically significantly injury she seemed to have convinced a nurse and doctor by whom she was seen that she had been assaulted. The present applicant was arrested and questioned at some considerable length about her allegations during which process various gardaí had suggested to him that it was incredible that a young child could make up allegations of this sort: they simply did not believe it could happen. There is no evidence other than that the complainant invented this story on her own.

4

The applicant was charged with the offences mentioned. The court has seen the Transcripts of his Trial and no criticism can be made of the conduct of his defence, which was competent and resourceful throughout. The applicant himself constantly denied the allegations and when questioned by the gardaí, did not make any admission of guilt. The trial was entirely properly conducted by the learned trial judge (His Honour Judge Carroll Moran) but the alarming and disturbing fact is that, notwithstanding being entirely innocent, the defendant was convicted of these offences by a jury.

5

Very fortunately, the learned trial judge dealt with the case by a four year suspended sentence. He did this principally in light of evidence from Una Hardester's father, in which the hope was expressed that better relations might prevail in the future, and the judge's view that the applicant was not predisposed to be a criminal and had perhaps been unfortunately influenced by the family feud that had gone on.

6

It may be worth saying, though it will of course be obvious to legal readers, that once the jury had convicted the applicant, the learned trial judge was bound by that decision and had to proceed to sentence accordingly.

How the truth came out.
7

This case is unlike any miscarriage of justice application we are aware of in that the defence made no complaint whatever about the conduct of the investigation or the trial. The applicant did not lodge an appeal: since the trial had turned entirely on questions of credibility, and since there was no complaint to be made about the conduct of the trial, there was little or no prospect of success on an appeal. This, indeed, was conceded by counsel for the Director of Public Prosecutions on the hearing of this application, and very properly so. The applicant simply absorbed what had happened and tried to get on with his life. He moved abroad for a period and then took up residence in Galway City, about fifty miles from his home. He is entitled now to have his good name restored.

The complainant confesses.
8

About nine years after the alleged offence, in November/December 2006, the complainant, now an adult, and resident in America, arrived back to the Aughrismore area for the purpose of retracting her allegations. She told her own mother that she had made up the allegations against Mr. Hannon. She met Mr. Hannon's sister by chance at a Filling Station in Clifden and told her the same. She made a number of statements to the gardaí. In all of them she confessed to having wholly invented a completely false allegation against Mr. Hannon:

"... I wish to state that my evidence was false as was my complaint in its entirety. Feichín Hannon never assaulted me. I have never spoken to him. We never had any contact because of the trouble between the families. I wish also to add that I was never coerced to make the complaint, never coached, and never encouraged by anyone. I am the only party at fault. I now wish to tell the truth about this matter. I wish to right the wrong that [I] have done to Feichín Hannon insofar as I can. I am twenty years old now, and I have lived with my cancerous guilt every day for the last ten years. It has been present at every moment. It has eaten away at me. Every happy event, every accomplishment, every friendship and every love affair has been stolen. My entire life since I left Ireland has been stolen. I know how awfully wrong what I did was, and I am deeply, deeply remorseful, more than anyone will ever understand. I know that Feichín Hannon has lived with the shadow of his conviction over his life for many years now, and I can only imagine the rage, the injustice, the pain and the shame he must have felt. I want to see justice done now. I wish there was some way I could apologise to Feichín Hannon and his family and tell them how much I regret what I did. I also wish there was some way to apologise to the State and its employees for wasting their time and money.

... I would like to end this statement by saying I have changed, and I have lived the cleanest life I could in the years since I left Ireland. I would like to say that I found God, and I am attempting to pay back my moral debt to society through good deeds. But all of that would be a cop out. I did something terribly wrong and I got away with it. Other people paid a heavy price, Feichín Hannon most of all. I want to...

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