DPP v Kelly

• Jurisdiction: Ireland
• Judgment Date: 30 July 1987
• Date: 30 July 1987
• Docket Number: [C.C.A. No. 59 of 1986]
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[C.C.A. No. 59 of 1986]

The People (DPP) v. Kelly

The People (at the suit of the Director of Public Prosecutions)

and

Eamon Kelly

Cases mentioned in this report:—

R. v. Collister and Warhurst (1955) 39 Cr. App. R. 100.

R. v. Parks [1961] 1 W.L.R. 1484; [1961] 3 All E.R. 633; (1962) 46 Cr. App. R. 29.

R. v. Paraskeva (1982) 76 Cr. App. R. 162.

R. v. Knightbridge Crown Court, ex parte Goonatilleke [1986]; Q.B.I; [1985] 3 W.L.R. 553; [1986] 2 All E.R. 498. (1985) 81 Cr. App. R. 31.

R. v. Pestano (1981) Crim. L.R. 397.

Driscoll v. R. (1977) 137 C.L.R. 517.

Practice Note "Antecedent History of Accused and Convicted Persons"(1955) 39 Cr. App. R. 20.

Archbold Criminal Pleading Evidence and Practice 41st Ed. para. 4-306.

Criminal law - Evidence - Character of witness - Previous convictions of prosecution witness - Record unknown to defence or prosecution - Whether material to credibility of witness - Extent of duty on prosecution to inform defence.

Application for leave to appeal.

The applicant applied for leave to appeal against his conviction and sentence having been refused leave to appeal by the trial judge.

The applicant applied by way of motion dated the 6th April, 1987, to the Court of Criminal Appeal for an order pursuant to order 86, rule 4 of the Rules of the Superior Courts, 1986, for liberty to add an additional ground of appeal to the grounds already filed. The court granted liberty and the additional ground appears in the judgment, infra.

The application for leave to appeal was heard on the 18th May, 1987, and at the conclusion of argument the court allowed the application and directed a new trial and indicated that it would state its reasons at a later date.

The applicant was convicted, inter alia, of wounding with intent to do grievous bodily harm, contrary to s. 18 of the Offences Against the Person Act, 1861. He denied the charges and denied being at the scene when the offences took place. The prosecution witness, who identified the applicant as being present at the scene, was not cross-examined as to his credibility however, unknown to both the prosecution and defence, he had a number of serious convictions recorded against him. It was argued on behalf of the applicant that there could have been a different verdict by the jury if this evidence had been available.

Held by the Court of Criminal Appeal (Finlay C.J., Lynch and Lardner JJ.), in allowing the application and directing a new trial, 1, that, where the prosecution was aware of a previous conviction of a prosecution witness, they should so inform the defence before the trial.

2. That if the trial judge was satisfied that the conviction could go to the credit of that witness he could permit it to be put to...