DPP v Nora Wall

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 16 December 2005
• Neutral Citation: [2005] IECCA 140
• Docket Number: [CCA 147/99]
• Court: Court of Criminal Appeal
• Date: 16 December 2005

D.P.P.-v- Nora Wall

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 9 OF

THE CRIMINAL PROCEDURE ACT, 1993

BETWEEN

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

RESPONDENT

AND

NORA WALL

APPLICANT

[2005] IECCA 140

Kearns J.

Herbert J.

Butler J.

[CCA 147/99]

THE COURT OF CRIMINAL APPEAL

Kearns J.

1 On 10 June, 1999, the applicant was convicted by the Central Criminal Court of rape contrary to common law and of indecent assault contrary to common law as punishable by s.10 of the Criminal Law (Rape) Act,1981. On 23 July, 1999, the applicant was sentenced by the Central Criminal Court to imprisonment for life for the offence of rape and to 5 years imprisonment for indecent assault.

2 On 27 July, 1999, the applicant brought a bail application before the Court of Criminal Appeal, at which point senior counsel on behalf of the respondent conveyed to that court the respondent's consent to the granting of leave to appeal, and further consented that the appeal be allowed and that a retrial be directed. This startling turn of events was referable to (a) the inadvertent calling as a witness on behalf of the prosecution, Patricia Phelan, a person whom the respondent had specifically directed should not be so called at the trial and (b) matters regarding the complainant, Regina Walsh, which had not been disclosed to the lawyers representing the applicant prior to trial.

3 On 22 November, 1999, counsel for the respondent indicated to the court of criminal appeal that the respondent was not proceeding with an application for a retrial. Counsel for the respondent further indicated that the respondent"fully and ungrudgingly" accepted that the applicant was entitled to be presumed innocent of all charges preferred against her. The court accordingly quashed the conviction of the applicant and the sentences imposed in respect thereof.

4 Section 9 of the Criminal Procedure Act,1993, ("The Act") provides as follows:-

"9. ù(1) Where a person has been convicted of an offence and eitherù"

5 i (a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and

6 (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice,

or

7 i (b) (i) he has been pardoned as a result of a petition under section 7, and

8 ii(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice,

9 the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person."

10 The applicant, her conviction having been quashed by this court on appeal, now seeks a certificate that a range of newly discovered facts reveal that there was a miscarriage of justice in her conviction, within the provisions of s.9(1)(a)(ii) of the Act. The respondent has indicated to the court, both through counsel and in writing, that the respondent is not opposing this application on the part of the applicant. At the opening of the hearing before this court, Mr. Comyn, senior counsel on behalf of the respondent, helpfully further indicated to the court that the respondentagreed that a certificate should issue in this case.

11 From an examination of the existing jurisprudence, the applicable legal principles appear to be as follows:-

12 (1) An application pursuant to s.9 of the Act is a civil claim in which the onus of proving that a newly discovered fact shows there has been a miscarriage of justice rests on the applicant (The People (DPP) v Pringle (No.2) [1997] 2 IR 225; The People (DPP) v Meleady & Grogan (No.3) [2001] 4 IR 16).

13 (2) The standard of proof is the same standard as in any civil claim, namely the balance of probabilities.

14 (3) An exhaustive definition of the term"miscarriage of justice" has not been attempted by the Court of Criminal Appeal or by the Supreme Court which has indicated that courts should not attempt such a definition (The People (DPP) v Pringle (No.2) [1997] 2 IR 225).

15 (4) Examples of circumstances which may constitute a miscarriage of justice include, but are not limited to the following:-

16 (a) Where it is established that the applicant was innocent of the crime alleged.

17 (b) Where a prosecution should never have been brought in the sense that there was never any credible evidence implicating the applicant.

18 (c) Where there has been such a departure from the rules which permeate all judicial procedures as to make that which happened altogether irreconcilable with judicial or constitutional procedure.

19 (d) Where there has been a grave defect in the administration of justice, brought about by agents of the State (The People (DPP) v Shortt (No.2) [2002] 2 IR 696).

20 (5) The exercise in which the court is engaged under the Act of 1993 is to determine whether the newly discovered facts show that a miscarriage of justice occurred and this is not confined to the question of actual innocence but extends to the administration in a given case of the justice system itself (The People (DPP) v Meleady & Grogan (No.3) [2001] 4 IR 16.

Section 9(6) of the Act of 1993 provides as follows:-

"In subsection (1) "newly-discovered fact" meansù

21 (a) where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and

22 (b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial."

23 Without demur from the respondent, Mr. Rogers, senior counsel for the applicant, outlined the following facts, which fall into three broad categories, as constituting"newly-discovered facts" within the meaning of s.9 of the Act:-

24 (1) Regina Walsh - history of previous allegations, her psychiatric history immediately prior to the making of the complaints against the applicant and her reliance on “flashbacks”, so described by her, to retrieve these alleged incidents from her past

25 (a) That the complainant, Regina Walsh, had previously alleged that she was raped in London by a black man, in respect of which allegation she had made no complaint to the police.

26 (b) That the complainant, Regina Walsh, had previously had a violent relationship with her then boyfriend Tommy Mulcahy, in the course of which she was beaten and abused, as a consequence of which she was twice admitted to hospital, but in respect of which she made no complaint to the police.

27 (c) That the complainant, Regina Walsh, had made a complaint of assault against her aunt June O'Brien to the Garda Siochana in Waterford in 1996, which complaint was withdrawn by her some days after making same.

28 (d) That the complainant, Regina Walsh, had made three complaints to the Garda Siochana of assaults upon her by one Carol Tracey, who was never traced and in respect of which complaints no proceedings took place.

29 (e) That the complainant, Regina Walsh, had taken an overdose of...