DPP v P (P) M

JudgeMacken, J.
Judgment Date17 June 2010
Neutral Citation[2010] IECCA 61
Docket Number[Record No. 194/08]
CourtCourt of Criminal Appeal
Date17 June 2010

[2010] IECCA 61


Macken, J.

Budd. J.

Herbert, J.

[Record No. 194/08]
DPP v M (P)

DPP v CORBALLY 2001 1 IR 180 2001 2 ILRM 102 2000/7/2445


R v BATHURST 1968 2 QB 99 1968 2 WLR 1092 1968 1 AER 1175

DPP v CONNOLLY 2003 2 IR 1 2003/14/3140

DPP v MAPLES UNREP CCA 30.3.1992 2003/17/3894



Right to silence - Presumption of innocence - Impermissible comments and prejudicial remarks by prosecution - Comments on accused's failure to give evidence - Whether trial judge erred in refusing to discharge jury - Whether comments capable of being cured by judge's charge - Whether trial judge corrected or offset prejudicial effect of remarks - Whether comment by counsel for prosecution could have influenced jury's consideration of overall evidence in manner adverse to the applicant - Amelioration of statutory rule - DPP v Corbally [2001] 1 IR 180, [2001] 2 ILRM 102; R v Bathurst [1968] 2 QB 99, [1968] 1 All ER 1175; DPP v Connolly [2003] 2 IR 1 and DPP v Maples (Unrep, CCA, 30/3/1992) considered - Criminal Justice (Evidence) Act 1924 (No 37), s 1(b) - Conviction set aside; retrial directed (194/2008 - CCA - 17/6/2010) [2010] IECCA 61

People (DPP) v M (P)

Facts section 1(b) of the Criminal Justice (Evidence) Act 1924 provides, inter alia, that "The failure of any person charged with an offence or of the wife or husband, as the case may be of the person charged, to give evidence shall not be made the subject of any comment by the prosecution." The applicant had been convicted of sexual offences and complained that the prosecution indirectly commented on the fact that he had not given evidence on a material issue in breach of s.1(b) of the Act of 1924.

Held by the Supreme Court (Macken J. delivering the judgment) in setting aside the convictions and directing a retrial that the object of s.1(b) of the Act of 1924, especially in its time context, was to prevent the prosecution, directly or indirectly, from negating the right to silence and the presumption of innocence from which it flowed, by inveighing against an accused's failure to give evidence in his own defence.

That, although mandatory on its face, an infringement of section 1(b) of the Act of 1924 would not be treated as such if the trial judge's charge to the jury cured such infringement, taking into account the nature of the alleged failure to comply with the section of the Act, the context in which such failure arose, and the precise nature of the judge's charge or recharge in relation to the same.

That the comment by the prosecution could have influenced the jury in its consideration of the overall evidence on the several counts in a manner adverse to the applicant. The fact that, in the course of cross-examination counsel for the accused may make statements or cross-examine in a manner which may be open to criticism, was not a reason for permitting the prosecution to comment on the failure to give evidence, in contravention of the rule laid down in the Act of 1924, even if inadvertently done in response to what was said in cross-examination.

That the content of the trial judge's charge to the jury had not been directed sufficiently to the offending words, so as to cure the infringement of the Act of 1924.

Reporter: P.C.

Macken, J.

This is an application for leave to appeal against conviction in respect of certain sexual offences. The applicant was originally charged with four sexual assaults, the first three in respect of one young girl (L.K.) and the fourth in respect of another young girl, her sister (S.K.) As to the first three offences, all three were said to have occurred, according to the particulars of offence, on three unknown dates between the 1st January 1998 and the 31st December 1998. The fourth offence was alleged to have occurred on the 18th September, 2004.


After a trial which took place in March 2008, the applicant was acquitted in respect of the first two counts and convicted, by majority verdict, in respect of counts 3 and 4. In June 2008 the applicant was sentenced to 18 months in respect of count 3, with the final six months suspended, and in respect of count 4 the applicant was sentenced to twelve months imprisonment, the final nine months of that sentence also being suspended, both subject to conditions.


The applicant lodged a notice of appeal against conviction. The notice of appeal lists 12 grounds of appeal and in the written submissions it appears clear that grounds 1 and 2 of the application for leave to appeal are the most important. These two grounds also formed the basis of a successful application for bail, pending appeal. It must be assumed that they constituted, in the eyes of this Court when granting bail, discrete grounds of appeal within the ambit of DPP v. Corbally [2001] 1 I.R. 180. In the above circumstances, this Court considers it appropriate to deal first with these two grounds. They are:


(a) The trial judge erred in fact and in law in refusing to discharge the jury on the grounds that counsel on behalf of the Director of Public Prosecutions had wrongfully commented twice on the applicant's failure to give evidence on his own behalf.


(b) The conduct of the trial was manifestly unsatisfactory and not in due course of law in circumstances where the applicant did not know with certainty which incident of the three sexual assaults complained of by L.K. he had been convicted of.


In relation to ground 1 senior counsel for the applicant, Mr. Kavanagh, invokes the Criminal Justice (Evidence) Act1924 ("the Act of 1924") which provides, inter alia, as follows:

"S.1(b) The failure of any person charged with an offence or of the wife or husband, as the case may be of the person charged, to give evidence shall not be made the subject of any comment by the prosecution." (emphasis added)


In support of this ground counsel on behalf of the applicant cites the following extract from the closing speech of counsel for the prosecution:

"…Well, in the overall context of these things, does the door matter one way or the other? Her lordship warned you earlier about drawing any inferences from the failure of the accused person to give evidence in a case. She will warn you about that. But when it comes to the door, apart from anything else, we don't have the best evidence in terms of the hanging of the door, because the man who hung the doors, and yet didn't drill one side of them was Mr. M." (emphasis added)


"Mr. M" was the accused. It is alleged that these comments breach the above provisions of the Act of 1924, and were of a similar nature to comments which were found to be improper in the decision of the English High Court inR v Bathurst [1968] 2 QB 99. Moreover, it is submitted that counsel for the prosecution omitted to tell the jury that the applicant's failure to give evidence regarding the door, or indeed any other matter, could not imply guilt, but rather he had wrongly relied on the fact that the learned trial judge would do so. Counsel for the applicant also invokes the decision in DPP v Connolly [2003] 2 IR 1 in which Hardiman, J referred, although obiter, to the provisions of the Act of 1924 indicating that a trial judge could make a comment, provided that such comment was made fairly.


In relation to s.1(b) of the Act of 1924 above referred to, counsel on behalf of the applicant also cites the decision of this Court inDPP v Patrick Maples (unreported, Court of Criminal Appeal, 30th March, 1992) where Egan, J., making reference to the section, but in the context of very different facts, stated:

"… is a specific statutory enactment, which on its face, is mandatory and is an absolute prohibition against comment by the prosecution. However, the fact that I said that it is an absolute prohibition has not been followed in every case and there have been cases where the trial judge's charge has been held to rectify the comments made by the prosecution and it depends on the particular case in every instance as to whether that discretion is permissible, whether the trial judge can, in every event, correct any wrongful comment by the prosecution."


In that case, while this court did not criticise the prosecution, who had commented on the accused's refusal to give evidence and on his failure to answer questions, nevertheless the court found that the comments were not capable of being cured by the judge's charge as made in that case, and directed a retrial.


While counsel for the applicant maintains his submission that the section is mandatory, it is submitted that in the present case, the trial judge did not, in any event, in her charge, correct or in any way offset the prejudicial effect of the remarks made by counsel for the prosecution. Nor, it is said, did she do so in her recharge upon requisition. In exchanges in the absence of the jury she accepted that counsel for the prosecution should not have commented on the applicant's failure to give evidence, and indicated that she intended to give warnings to the jury in relation to this. The trial judge, counsel for the applicant accepts, directed the jury to avoid drawing inferences from the applicant's failure to give evidence and did so on a number of occasions, but she refused to direct the jury specifically to disregard the prosecution's comments of which complaint was made. It is alleged therefore that the trial judge's general directions to the jury could not be sufficient to cure the particular prejudice caused by the breach of s.1(b) of the Act of 1924.


Counsel for the applicant submits that his application for the discharge of the jury ought to have been acceded to because of the...

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    • Court of Appeal (Ireland)
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    ...the scene for the purposes of urinating is not evidence that this in fact occurred. 19 A broadly similar matter arose in DPP v. P.(P).M. [2010] IECCA 61. In that case, which concerned a number of sexual offences, an issue arose as to the locking mechanism on a door and there was a referenc......

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