DPP v McDonagh

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 06 April 2001
• Neutral Citation: 2001 WJSC-CA 1917
• Docket Number: [C.C.A. No. 32 of 1999]
• Court: Court of Criminal Appeal
• Date: 06 April 2001

DPP v. McDONAGH (D)

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

DAVID McDONAGH

APPLICANT

2001 WJSC-CA 1917

Keane C.J.

Kearns J.

Herbert J.

32/1999

THE COURT OF CRIMINAL APPEAL

Synopsis:

PROFESSIONS

Barristers

Evidence - Criminal law - Conduct of defence - Handing over of case - Bar Council Code of Conduct - Whether identification evidence improperly admitted - Whether verdict of jury safe - Whether legal advice rendered to applicant satisfactory (32/1999 - Court of Criminal Appeal - 6/4/01)

People (DPP) v McDonagh - [2001] 3 IR 411

The applicant was convicted of murder and sentenced to life imprisonment. The applicant sought leave to appeal against his conviction. The applicant argued that the preparation and conduct of his case had been seriously inadequate. On behalf of the applicant attention was drawn to the fact that on the weekend before the trial was due to commence the applicant's senior counsel was forced to withdraw due to other commitments and a replacement senior counsel was only then instructed. The Chief Justice, delivering judgment, held that proper advice was given to the applicant by his legal advisers during his trial. Leave to appeal would be refused. However attention was drawn by the court to the Code of Conduct of the Bar Council of Ireland and in particular to the provisions regarding the withdrawal of counsel from cases. The court expressed the hope that such an unsatisfactory situation would not occur again.

Citations:

CRIMINAL JUSTICE ACT 1984 S20(1)

MACINTOSH V HM ADVOCATE 1997 SCCR

R V BOAL 1992 1 QB 591CONSTITUTION ART 38.1

R V CLINTON 1993 1 WLR 1181

R V WELLINGS UNREP 20.12.1991

CODE OF CONDUCT OF THE BAR OF IRELAND PARA 4.6

CODE OF CONDUCT OF THE BAR OF IRELAND PARA 9.21

CODE OF CONDUCT OF THE BAR OF IRELAND PARA 9.22

1 JUDGMENT of the Court delivered the 6th day of April 2001 by Keane C.J.

Introduction

2 The applicant in this case was convicted of the murder of Timothy Joyce on the 9th November 1996 at St. Helena's Drive, Finglas, Co. Dublin and was sentenced to imprisonment for life. He was also found guilty of violent disorder and possession of an offensive weapon and sentenced to terms of imprisonment of five years and three years respectively, to run concurrently, in respect of those counts. Having been refused leave to appeal by the Central Criminal Court (Carney J.), he now applies to this court for leave to appeal.

3 The case, which has taken an unusual course in this court, arose out of a violent confrontation between members of two travelling families, which began in a public house in Finglas but spilled out into an adjoining street. The deceased, Timothy Joyce, died as a result of a neck wound inflicted on him in the street. The applicant was identified by a number of witnesses as the person who inflicted the fatal blow and the prosecution case depended essentially on their evidence.

4 The evidence established that a number of members of the Joyce family had travelled from England to a funeral in Tullamore. On the return journey, they stopped at the public house in Finglas. Some members of the other family concerned, the McDonaghs, also arrived at that premises. It is not in dispute that there had been had blood for some time between the two families and a fracas of some sort broke out between the two factions, during which glasses and items of furniture were thrown.

5 The witnesses who identified the applicant as the person who struck Timothy Joyce, and who were themselves all members of the Joyce family, said that after leaving the public house they got into a van belonging to one of them and drove away, but found after a short time that the tyres had been slashed and that they could not go any further. They said that while they were attempting to effect repairs, a number of people came running towards them with billhooks in their hands. It was at that stage, they said, that they saw the applicant strike the deceased with a billhook.

6 After he had brought his application for leave to appeal, the applicant applied to this court by way of notice of motion for leave to adduce new and additional evidence at the hearing of the application. This consisted of 12 affidavits which, it was said on his behalf, would tend to show that the applicant was not present at the time that Timothy Joyce was fatally wounded. It appears from the judgment of the court which was delivered by Laffoy J. that the first contention advanced in support of the application on behalf of the applicant was that the defence were unaware of the evidence of two of these witnesses at the time of the trial. The court refused to allow the adduction of the evidence. However, it was also submitted on behalf of the applicant that he should be permitted to adduce evidence which would establish that the conduct by his legal representatives of his defence had been so unsatisfactory as to require the setting aside of the conviction. The court did not consider that it was in a position to decide on that submission and the matter was argued again before a differently constituted court. Delivering the judgment of the court, Murray J. said that the conduct of a trial (including steps taken preliminary to the trial) by an accused's legal advisors could in exceptional circumstances give rise to a ground of appeal. He said that, however, it would be a matter for the court hearing the application for leave to appeal to determine what material the applicant should be entitled to rely on in advancing that ground of appeal.

7 During the hearing of the application for leave to appeal itself, counsel on behalf of the applicant indicated that, apart from that ground, he was relying on only one other ground. It was submitted that evidence as to an identification parade had been wrongly admitted by the trial judge.

8 On the hearing of the application, there was before the court in addition to the transcript of the trial, the exhibits and the affidavits already referred to, affidavits from those who had represented the applicant at his trial, i.e. Mr. John Whelan, S.C., Mr. Charles Corcoran, Barrister-at-Law and Mr. Eugene Dunne, Solicitor.

9 It appears from those affidavits that another senior counsel had been instructed on behalf of the applicant at an earlier stage. He had a consultation with the applicant and gave certain advices. The trial was fixed for Monday, January 25th 1999, but because the senior counsel concerned was unexpectedly detained in another trial which was then at hearing in the Special Criminal Court, he withdrew from the case at the weekend and Mr. Whelan was instructed in his place. Before the arraignment of the applicant, the learned trial judge, on the application of Mr. Whelan, put back the opening of the case until 2.00 p.m. the following day. Mr. Whelan, who had read the papers in full, then had a lengthy consultation with the applicant. He also gave certain advices to the applicant at that stage as to how he thought the defence should be conducted and Mr. Corcoran and Mr. Dunne were in agreement with those advices. The prosecution case concluded on the fifth day and, at that stage, Mr. Whelan asked the trial judge to adjourn the hearing until the following day to enable him to consider whether the defence should go into evidence. The trial judge acceded to that application and, on the following morning, Mr. Whelan said that the defence would not be going into evidence. After an absence of four hours and ten minutes, the jury found the applicant guilty by a majority of 11 to 1 on the count of murder and guilty of the remaining counts unanimously.

Submissions on behalf of the Applicant

10 Mr. Kieran O'Loughlin, S.C. on behalf of the applicant, submitted that the preparation and conduct of his defence was seriously inadequate and that this rendered the verdict of the jury unsafe and unsatisfactory. First, he said that the applicant's instructions to his legal advisors were to the effect that he had not been present when the fatal blow was struck and that there were a number of people who could give evidence to that effect. The persons concerned had been interviewed by gardaí and their statements furnished to the defence. He submitted that, in these circumstances, notice of the intention of the applicant to adduce evidence in support of an alibi should have been given in advance of the trial pursuant to s. 20(1) of the Criminal Justice Act, 1984.

11 Secondly, Mr. O'Loughlin submitted that the defence were seriously at fault in failing to interview the persons concerned with a view to assessing the strength of the evidence that they might give in support of the applicant's version of events at the trial.

12 Thirdly, Mr. O'Loughlin submitted that the actual defence of the applicant to the charge of murder - that he simply was not there when the fatal blow was struck - was put to only one of the prosecution witnesses. The remaining witnesses were cross examined exclusively on the basis that their identification of the applicant was mistaken.

13 Fourthly, Mr. O'Loughlin submitted that the applicant had not been properly advised on the crucial question as to whether he should give evidence at the trial and whether any other witnesses should have been called to give evidence on his behalf.

14 Finally, Mr. O'Loughlin submitted that it was not possible for an adequate defence to be mounted to the prosecution's case when senior counsel was instructed, at the earliest, over the weekend and did not meet his client or the other members of the defence team to discuss the case until 10.00 a.m. on the day on which the trial was listed for hearing at 11.00 a.m.

15 Mr. O'Loughlin submitted that matters relating to the preparation and conduct of the defence of an accused person by his legal representatives constitute a ground of appeal where it is reasonable to conclude that there...