DPP v Hayes & O'Leary

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 January 2014
• Neutral Citation: [2014] IECCA 5
• Court: Court of Criminal Appeal
• Docket Number: [Record Nos: 50 & 65/2013]
• Date: 31 January 2014

[2014] IECCA 5

THE COURT OF CRIMINAL APPEAL

Clarke J., Moriarty J., Cross J.

[Record Nos: 50 & 65/2013]

Between/

The Director of Public Prosecutions

Prosecutor/Respondent

and

Noel Hayes and William O’Leary

Accused/Appellants

Criminal law - Criminal procedure – Evidence – Retrial - Seriousness offences – Time - Balance of justice - Whether Court would order retrial

Facts: A document had been included in the papers allowed to go into a jury room which had not formed part of the evidence of the case and there was evidence to suggest that the jury had had regard to it. The DPP had accepted that the respective convictions could be set aside and the appeals were listed and the Court then set aside the convictions. The judgment related to the question of a retrial. The Court heard arguments as to whether the retrial should be directed by virtue of the circumstances in which the appeal was allowed, including the lapse of time and seriousness of the offences.

Held by Clarke J. for the Court of Criminal Appeal, that having regard to the seriousness of the offences alleged and the explicability of the lapse of time coupled with the absence of specific prejudice, the Court was of the view that the balance of justice favoured the direction of a retrial.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 31st January, 2014.

1 1. Introduction

1.1 The question which the Court is now required to answer is whether it should direct a retrial of the case against both of the accused/appellants (respectively “Mr. Hayes” and “Mr. O’Leary”) on charges relating to the alleged forging of a will. Both Mr. Hayes and Mr. O’Leary were convicted at Wexford Circuit Court on the 29th January, 2013, of forgery contrary to s. 2 of the Forgery Act 1913 arising out of an allegation that they had forged a document purporting to be a will in the name of Matthew Hayes (a brother of Noel Hayes) between the 25th December, 1998, and the 5th January, 1999.

1.2 It transpired at a very early stage that a document had been included in the papers which were allowed go into the jury room but which did not form part of the evidence in the case. In addition, there was evidence to suggest that the jury had had regard to that document. In those circumstances, as early as the sentencing hearing which occurred subsequent to the conviction of Mr. Hayes and Mr. O’Leary, counsel for the prosecutor/respondent (“the DPP”) indicated that the DPP accepted that the respective convictions would ultimately require to be set aside.

1.3 Mr. Hayes and Mr. O’Leary then appealed against their respective convictions. At the instigation of the DPP, the appeals were listed for hearing before this Court on Monday, 16th December, 2013, at which hearing it was indicated on behalf of the DPP that there would be no opposition to the appeal succeeding. However, it was proposed on behalf of the DPP that it would be appropriate for the Court to exercise its power to order a retrial. It was indicated on behalf of both Mr. Hayes and Mr. O’Leary that they would oppose any such direction.

1.4 In those circumstances the Court allowed the appeal and set aside the respective convictions. As one of the parties was not, on that occasion, ready to argue the issue in respect of a retrial, the matter was put back to the 15th January, 2014, to allow a hearing on that question. This judgment is directed to the issues which arose at that hearing. The Court now turns to the arguments raised.

2 2. The Argument on behalf of Mr. Hayes

2.1 Counsel for Mr. Hayes placed reliance on The People (at the suit of the Attorney General) v. Griffin [1974] 1 I.R. 416 in which the Supreme Court held that there was no jurisdiction to order a retrial under the legislation then pertaining (being s. 5 of the Courts of Justice Act 1928 (“the 1928 Act”)) in circumstances where an appeal had been allowed by virtue of the failure of the prosecution to lead an essential piece of evidence. In substance, the problem was that the prosecution had failed to place before the court evidence of a regulation made under s. 14 of the Dangerous Drugs Act 1934 which was an essential proof in that case. It obviously would have been possible, at any retrial, for the prosecution to, as it were, mend its hand and prove the relevant regulations. However, Henchy J., speaking for the Supreme Court, took the view that no retrial should be ordered.

2.2 In so doing Henchy J., at pp. 419 and 420, said the following:

“While there are many examples of the unqualified quashing of convictions where evidential proofs were wanting because of the prosecution's default, there seems to be no recorded case where a retrial was ordered in such circumstances. The reason would appear to be that s. 5, sub-s. 1(b ), of the Act of 1928 was passed to enable the Court of Criminal Appeal to order a retrial when the quashed conviction resulted not from the inadequacy of the prosecution case but from a faulty trial (e.g. ,misdirection, inadmissible evidence, procedural irregularity) which, but for such fault, might have led to a supportable conviction. So far as I know, the section has never hitherto been judicially treated as authorising a retrial for the purpose of enabling the prosecution to mend its hand by presenting evidence at the retrial which ought reasonably to have been given at the first trial — I use the word "reasonably" because of the decision in The Attorney General v. Cleary.”

2.3 In conclusion Henchy J. said the following at p. 420:

“In my opinion, when a conviction in quashed because the prosecution failed to tender the evidence necessary to sustain a conviction, the accused should not be subjected to the worry of a retrial in which the prosecution could mend its hand, unless there is clear statutory authority for such a course. Section 5 of the Act of 1928 provides no such authority.”

2.4 Counsel for Mr. Hayes argued that this case, although accepting that it was not identical, was nonetheless analogous to Griffin. It was said that what led to the necessity to allow the appeal in this case was an error on the part of the prosecution in allowing a document which was not properly before the court to be given to the jury. On that basis it was argued that a retrial would not be appropriate.

2.5 It is, of course, the case that the situation is now governed by more modern legislation in the form of s. 3 of the Criminal Procedure Act 1993, as opposed to the 1928 Act which applied when Griffin was decided. However, counsel argued that there was no material difference in the respective legislative provisions.

2.6 In addition, counsel indicated that he would place reliance on an argument concerning lapse of time which was put forward by counsel for Mr. O’Leary.

3 3. The Argument on behalf of Mr. O’Leary

3.1 Counsel for Mr. O’Leary argued that the true test was a broad based consideration of where the interests of justice lie. It was argued that, in circumstances where the setting aside of a conviction derived from a finding by this Court or, indeed, the Supreme Court, that there was insufficient admissible evidence before the trial court to sustain a conviction, a retrial could not be ordered. This was so, it was said, even if there was a reasonable basis for believing that the prosecution might be able to mend its hand on a retrial (following Griffin).

3.2 However, it was suggested that even if there was, at least arguably, sufficient evidence tendered at the original trial which was potentially available to sustain a conviction at a retrial, the court could take into account a wide range of factors in determining whether a retrial should be ordered. Attention was drawn to The People v. Cagney [2008] 2 I.R. 111, where the Supreme Court, while quashing a conviction, refused to order a retrial taking into account, amongst other things, as Hardiman J. put it at p. 131, “the fact that it is now more than seven years since the tragic incident at Portobello Bridge, the general good character of the accused and the fact that one of them, as the court was informed by counsel for the first applicant, without contradiction, has in the meantime suffered devastating injuries in a road traffic accident, I would not order a retrial.”

3.3 On that basis, counsel argued that the Court could take into account a wide range of circumstances which might legitimately be said to impact on where the justice of the case lay. Of relevance to this case, it was said that lapse of time was such a feature. In that context reliance was placed on the fact that the events which constitute the alleged offence occurred at the end of 1998 or the beginning of 1999 and, thus, 15 years ago. It would appear from the evidence, principally that of a Mr. Charles O’Leary, a brother of Mr. O’Leary, and himself an admitted participant in the alleged forgery, that Mr. Charles O’Leary had first gone to the authorities in the latter part of 2007 admitting his own wrongdoing and alleging participation in that wrongdoing on the part of both Mr. Hayes and Mr. O’Leary. Both Mr. Hayes and Mr. O’Leary have, therefore, been involved in the criminal process for over 5 years and it is likely to be at least 6 years from their initial involvement before any retrial could take place. It was argued that this was a weighty factor, when coupled with the overall length of time which has elapsed since the alleged offence occurred, which ought lie in favour of the Court not directing a retrial. As pointed out earlier, this lapse of time issue was also relied on on behalf of Mr. Hayes.

3.4 However, an additional point was made in the case of Mr. O’Leary. Counsel drew attention to the fact that the case made at trial on behalf of the DPP against Mr. O’Leary relied principally on the evidence of Mr....