DPP v Meleady

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Keane J.
• Judgment Date: 22 March 1995
• Neutral Citation: 1996 WJSC-CCA 748
• Docket Number: [No. 1 C.P.A. of 1994],ICPA/1994
• Date: 22 March 1995

DPP v. MELEADY

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE

CRIMINAL PROCEDURE ACT, 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-V-

JOSEPH MELEADY AND JOSEPH GROGAN

APPLICANTS

1996 WJSC-CCA 748

Egan J.

Keane J.

Johnson J.

ICPA/1994

THE COURT OF CRIMINAL APPEAL

Synopsis:

CRIMINAL LAW

Offence

Conviction - Appeal - Result - Retrial - Conviction of applicant at retrial - Newly discovered fact alleged by applicant - Appli cant sought review of conviction, quashing of conviction and certificate of review court - Certificate that newly-discovered fact showed miscarriage of justice - Review showed new fact provided grounds for treating trial as unsatisfactory - Convic tion quashed without retrial - Review court's decision not based on finding of miscarriage of justice - Certificate not issued by review court - Criminal Procedure Act, 1993 (No. 40), ss. 2, 3, 9 - (1CPA/94 - Court of Criminal Appeal - 22/3/95) [1995] 2 I.R. 517

|The People v. Meleady|

WORDS AND PHRASES

"Miscarriage of justice"

Accused - Trial - Conviction - Review - Retrial - Conviction at retrial - Newly discovered fact alleged by applicant - Applicant sought review of conviction, quashing of conviction and certifi cate of review court - Certificate that newly-discovered fact showed miscarriage of justice - Review showed new fact provided grounds for treating trial as unsatisfactory - Conviction quashed without retrial - Review court's decision not based on finding of miscarriage of justice - Certificate not issued by review court - (1CPA/94 - Court of Criminal Appeal - 22/3/95) - [1995] 2 I.R. 517

|The People v. Meleady|

Citations:

CRIMINAL PROCEDURE ACT 1993 S2

COURTS OF JUSTICE ACT 1924 S34

COURTS OF JUSTICE ACT 1928 S5(1)(b)

COURTS OF JUSTICE ACT 1928 S5(1)(a)

CONSTITUTION ART 13.6

CRIMINAL PROCEDURE ACT 1993 S2(1)

CRIMINAL PROCEDURE ACT 1993 S2(2)

CRIMINAL PROCEDURE ACT 1993 S2(3)

CRIMINAL PROCEDURE ACT 1993 S2(4)

CRIMINAL PROCEDURE ACT 1993 S3(1)

CRIMINAL PROCEDURE ACT 1993 S9(1)

CRIMINAL PROCEDURE ACT 1993 S9(4)

CRIMINAL PROCEDURE ACT 1993 S9(5)

CRIMINAL PROCEDURE ACT 1993 S9(6)

CONSTITUTION ART 38.1

CRIMINAL APPEAL ACT 1968 S17(1)(a) UK

WARD, IN RE 1993 96 CAR 1

DAVIS & ORS, IN RE 1993 97 CAR 110

KEANE, IN RE 1994 99 CAR 1

ARCHBOLD, CRIMINAL PLEADING, EVIDENCE & PRACTICE V1 (1993) PARA 4.265

FREWEN, CASES IN THE COURT OF CRIMINAL APPEAL V1 & 2

DPP, PEOPLE V O'SULLIVAN & MOORE 2 FREWEN 1

UNITED NATIONS UNIVERSAL DECLARATION ON HUMAN RIGHTS

CRIMINAL PROCEDURE ACT 1993 S9

WOOLMINGTON V DPP 1935 AC 462

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL NO 7 ART 3

COURTS OF JUSTICE ACT 1928 S5

CRIMINAL PROCEDURE ACT 1993 S5(1)

CRIMINAL PROCEDURE ACT 1993 S3

CRIMINAL PROCEDURE ACT 1993 S3(1)(a)

CRIMINAL PROCEDURE ACT 1993 S9(3)(a)(i)

CRIMINAL PROCEDURE ACT 1993 S9(1)(a)(ii)

CRIMINAL PROCEDURE ACT 1993 S9(1)(a)

CONSTITUTION ART 40.4.1

AG GUIDELINES (UK) ON DISCLOSURE OF INFORMATION TO THE DEFENCE IN CASES TRIED ON INDICTMENT 74 CAR 302

1 JUDGMENT of the court delivered the 22nd day of March, 1995 by Keane J.

THE FACTUAL BACKGROUND

2 On the night of the 26th February, 1984, Mr. Eamon Gavin was in his house at 17 Cremorne, Templeogue, Co. Dublin when he heard the sound of a car being started outside the house. He asked his son Paul to look out and he shouted to him, "it's our car". Mr. Gavin and his son then went out and saw some people in his car. He (Mr. Gavin) tried to open the driver's door and the rear right door, but they were both locked. The car then began to reverse and Mr. Gavin jumped on to the bonnet and lay across the windscreen in an endeavour to block the view of the people inside. Because of the way in which the car was being driven, Mr. Gavin could not maintain his position on the windscreen and slid down on to the bonnet, grasping the lid where it meets the windscreen. The person driving the car then began to reverse, brake and drive forward violently in an effort to dislodge him. However, when the car reached Firhouse Road, a distance of some 150 yards from Mr. Gavin's house, the driver had to stop to allow other traffic pass.

3 When the car stopped in this manner, Mr. Gavin got off and stood in front of it with his hands on the bonnet. He shouted to the persons in the car that if they got out of the car and ran away, he would not run after them. There appeared to Mr. Gavin to be three persons in the car, the driver, a front seat passenger and a person in the back. The driver drove the car forward at Mr. Gavin and he began to fall backwards with his legs under it. The driver then stopped, apparently as a result of the driver of a car on the Firhouse Road having seen what was happening and stopping his car in front of Mr. Gavin's car. Mr. Gavin Jumped back on to the bonnet of the car and the driver then reversed it so as to enable him to drive on to Firhouse Road and avoid the car which had just arrived on the scene. The driver then accelerated violently along the Firhouse Road and then turned right on to Knocklyon Road, reaching a speed of approximately 60 miles per hour on occasions.

4 During the course of this journey, one of the persons in the car was leaning out the window, hitting Mr. Gavin on the head with a three-quarters full plastic container of windscreen cleaning liquid. He was also hit with a golfing umbrella which had been left in the back of the car. As the car was driven along Knocklyon Road, the driver again braked and accelerated violently in a further effort to dislodge Mr. Gavin. The latter succeeded, however, in pulling the umbrella off his assailant and throwing it on the roadside. He saw the two passengers in the car rummaging in the boot (the car was a hatchback) and one of them then learned out the rear right passenger window with a heavy metal safety container which held two gallons of petrol. He was about to throw it at Mr. Gavin, shouting "We'll kill you F... Bastard." Mr. Gavin shouted back "You're killing me" and the persons in the car laughed. They shouted back "We will kill you, you F... Bastard". The man holding the petrol container then shouted to Mr. Gavin that if he did not get off the bonnet when the car slowed down, they would kill him and burn him. Mr. Gavin said he would get off the car if they slowed down. They then slowed down to a crawl and Mr. Gavin rolled off the bonnet on to the road.

5 The car then accelerated away and Mr. Gavin began to walk towards his home. He was given a lift by the driver of the same car which had stopped at the exit on to the Firhouse Road and later that night went to the casualty department of Dr. Steeven's Hospital for treatment of the injuries he had received during this episode. His car was later found abandoned.

6 On March 5th, i.e., approximately a week after the events of that night, Mr. Gavin was asked by Garda (now Sergeant) Patrick Thornton, who was a member of Rathfarnham Garda Station and was carrying out the investigation into the unlawful taking of the car, to go to Rathfarnham District Court with a view to seeing if he could identify the persons who had been in his car that evening. Mr. Gavin went to the Courthouse where between thirty and forty persons, including a number of teenagers, were present. He did not identify any of the persons present in the Courtroom, but saw the two Applicants sitting on a table in an adjoining room. Mr. Gavin immediately informed the Gardai that the Applicant, Joseph Meleady, was the driver of the car on that evening and that the Applicant, Joseph Grogan, was the passenger in the front seat. At the request of the Gardai, Mr. Gavin then went to Terenure College where his son was at school and returned with him to the Courthouse. At the Courthouse, Paul Gavin identified Joseph Meleady as having been the driver of the car that evening.

7 On the 7th and 8th May, 1985 the Applicants were tried in the Dublin Circuit Court for offences of malicious damage and assault arising out of the events of the night of February 26th. The case against them rested solely on the identification by Mr. Gavin and his son. No forensic evidence was produced on behalf of the State.

8 Both the Applicants gave evidence and denied on oath having taken Mr. Gavin's car that evening. Other witnesses gave alibi evidence in their support. In addition, one Brendan Walsh gave evidence on behalf of the two Applicants. He had pleaded guilty to charges arising out of the incident on February 26th. At the trial, he gave evidence that he had been the front seat passenger in Mr. Gavin's car that night and that neither of the Applicants had been involved.

9 During the course of his cross-examination of this witness, Mr. Eamon Leahy, appearing for the Director of Public Prosecutions, suggested to Brendan Walsh that he had been in the back of the car and that his fingerprint had been found in that area. The relevant question and answer were as follows:-

"QUESTION:	I must suggest you were in the back of the car where your fingerprint was found?""
ANSWER:	I was in the front seat."

10 Earlier in the trial, Sergeant Thornton had told the Court that there had been a forensic examination of the car by a member of the Technical Bureau of the Gardai. When asked if the fingerprints of either of the Applicants had been found in the car, he said:-

"No, there were a number of smudges but they were inadmissible as evidence."

11 The question put by Mr. Leahy to the witness Brendan Walsh was based on an incorrect premiss. The member of the Technical Bureau who carried out the tests for fingerprints had in fact found the fingerprint of Brendan Walsh on the inside of the front passenger seat window. Mr. Leahy's question was based on information supplied to him by Sergeant Thornton during the course of his cross-examination.

12 The Applicants were both found guilty of...