DPP v McDonagh

JurisdictionIreland
Judgment Date01 January 1996
Date01 January 1996
Docket Number[No. 3 C.P.A. of 1994]
CourtCourt of Criminal Appeal

Court of Criminal Appeal

[No. 3 C.P.A. of 1994]
The People (Director of Public Prosecutions) v. McDonagh
The People (Director of Public Prosecutions)
and
Martin McDonagh

Cases mentioned in this report:—

The People (Director of Public Prosecutions) v. Meleady
[1995] 2 I.R. 517.

The People (Director of Public Prosecutions) v. Pringle
[1995] 2 I.R. 547.

Criminal law - Appeal - Newly discovered fact - Evidence - Onus of proof - Whether unsworn statement of co-accused constituting a newly discovered fact tending to show that there has been a miscarriage of justice - Whether entitlement to relief under Criminal Procedure Act, 1993 - Admissibility - Criminal Procedure Act, 1993 (No. 40), s. 2, sub-ss. 1 and 4, s. 3, sub-ss. 1 (b), 1 (c) and 3.

Criminal Appeal.

The facts have been summarised in the headnote and are set out fully in the judgment of the Court of Criminal Appeal, infra.

The applicant sought, by way of notice of motion dated the 22nd July, 1994, the reliefs set out in the judgment infra.

The application was heard by the Court of Criminal Appeal (Blayney, Morris and Budd JJ.) on the 20th November, 1995.

Section 2, sub-s. 1 of the Criminal Procedure Act, 1993, provides:—

"A person —

  • (a) who has been convicted of an offence either —

    • (i) on indictment, or

    • (ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967, and who, after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

  • (b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive,

  • may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence."

Section 2, sub-s. 4 of the Act of 1993 provides:—

"The reference in subsection 1 (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisors during the trial or appeal proceedings."

Section 3, sub-s. 1 of the Act of 1993 provides, inter alia:—

"On the hearing of an appeal against conviction of an offence the Court may-

  • (b) quash the conviction and make no further order, or

  • (c) quash the conviction and order the applicant to be re-tried for the offence . . ."

Section 3, sub-s. 3 of the Act of 1993 provides:—

"The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may —

  • (a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced;

  • (b) order the production of any document, exhibit or other thing connected with the proceedings;

  • (c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings;

  • (d) receive the evidence, if tendered, of any witness;

  • (e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court."

On the 18th March, 1988, the applicant, together with a co-accused, was convicted by the Circuit Criminal Court of various offences including...

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