DPP v Pringle (No 2)

Judgment Date16 May 1995
Date16 May 1995
Docket Number[No. 2 C.P.A. of 1994]
CourtCourt of Criminal Appeal

Court of Criminal Appeal

[No. 2 C.P.A. of 1994]
The People (Director of Public Prosecutions) v. Pringle
In the matter of an application pursuant to s. 2 of the Criminal Procedure Act
The People (Director of Public Prosecutions)
Peter Pringle

Cases mentioned in this report:—

The People v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

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

The People (Director of Public Prosecutions) v. Kelly [1987] I.R. 596; 3 Frewen 295.

The People (Director of Public Prosecutions) v. Pringle, McCann and O'Shea (1981) 2 Frewen 57.

Pringle v. Ireland [1994] 1 I.L.R.M. 467.

R. v. Cheatham (Court of Appeal (Criminal Division), 13th July, 1991).

R. v. Kulasingham and Sivilingham (Court of Appeal (Criminal Division), 27th May, 1994).

R. v. Maguire [1992] 1 Q.B. 936; [1992] 2 W.L.R. 767; [1992] 2 All E.R. 433; (1992) 94 Cr. App. R. 133.

R. v. Parchment (Court of Appeal (Criminal Division), 17th July, 1989).

R. v. Silcott, Braithwaite and Raghip (Court of Appeal (Criminal Division), 9th December, 1991).

R. v. Ward [1993] 1 W.L.R. 619; [1993] 2 All E.R. 577; (1992) 96 Cr. App. R. 1.

Criminal law - Appeal - Miscarriage of justice - Newly-discovered facts - Whether conflict as to credibility of garda witness a newly-discovered fact - Whether conflict might have raised reasonable doubt in mind of court of trial - Whether conflict rendered conviction unsafe and unsatisfactory - Criminal Procedure Act, 1993 (No. 40), s. 2.

Criminal appeal.

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

On the 27th November, 1980, following a trial which lasted twenty three days before a Special Criminal Court (Hamilton J., His Honour Judge Fawsitt and District Justice McGrath), the applicant was convicted of capital murder and robbery. The applicant was sentenced to death and to fifteen years on the respective offences. The sentence of death was commuted by the President, acting on the advice of the Government, to a sentence of forty years imprisonment without remission.

On the 2nd December, 1980, the applicant filed an application for leave to appeal. On the 22nd May, 1981, the Court of Criminal Appeal (O'Higgins C.J., Finlay P. and Costello J.) refused the application for leave to appeal.

On the 21st June, 1994, the applicant filed a notice of appeal pursuant to s. 2 of the Criminal Procedure Act, 1993.

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

"A person —

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

  • (i) on indictment, or . . .

  • 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 . . .

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

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

"The reference in sub-section 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 advisers during the trial or appeal proceedings."

The application was heard by the Court of Criminal Appeal (O'Flaherty, Lavan and Morris JJ.) on the 29th and 30th November, 1994, the 1st and 2nd December, 1994, and the 15th, 16th, 20th, 21st, 22nd and 23rd March, 1995.

On the 7th July, 1980, a bank raid was carried out by three men wearing masks and carrying guns. The raiders were pursued by members of the Garda Síochána. The events which followed resulted in the raiders shooting dead two members of the Garda Síochána. During the pursuit a red Volkswagen car was commandeered by two of the raiders and was later abandoned. When this car was examined two blood stains of the same type were found.

On the 19th July, 1980, the applicant was arrested and detained at a garda station. He was interviewed over lengthy periods during which the Gardaí informed him of the evidence connecting him with the bank raid, asked for his comments and requested him to tell the truth. He either refused to speak or informed his interrogators that on the advice of his solicitor he had nothing to say. During his detention the applicant was requested to provide a blood sample and he refused. On the 20th July, 1980, during an interview in the presence of Sergeant Connolly, the applicant suffered a nose bleed and a tissue containing the applicant's blood was obtained. There was no mention of this matter in the documents served on the applicant prior to his trial before the Special Criminal Court nor was any testimony given in relation to it at the trial. On the morning of the 21st July, 1980, during an interview conducted by Inspector Culhane and Sergeant Connolly the applicant was again informed of the evidence against him, including the forensic evidence which had become available, and again asked to tell the truth. At this point, according to Sergeant Connolly, the applicant said, "I know that you know I was involved, but on the advice of my solicitor I am saying nothing and you will have to prove it all the way". At the trial the applicant denied that he had said these words.

The applicant was tried and convicted by a Special Criminal Court of capital murder and robbery. The Court of Criminal Appeal refused his application for leave to appeal the conviction.

On appeal to the Court of Criminal Appeal, pursuant to s. 2 of the Criminal Procedure Act, 1993, expert evidence was adduced, on behalf of the applicant, proposing that the technique of authorship attribution known as the CUSUM technique established that the applicant was not the author of the disputed sentence. Contrary expert evidence was adduced on behalf of the respondent. During the hearing of the appeal evidence was adduced that prior to the applicant's trial in the Special Criminal Court Sergeant Connolly had prepared a summary of his evidence which stated that on the 20th July, 1980, he had obtained a tissue with the applicant's blood and had handed it to Detective Sergeant Ennis of the Ballistics Section. Further evidence was adduced that Sergeant Connolly's statement of evidence that was actually served on the applicant prior to his trial contained no mention of the tissue. In oral testimony before the Court Sergeant Connolly stated that his recollection was that he had handed the tissue to Detective Sergeant Ennis and they had a discussion about it and decided it had not sufficient blood on it to be of evidential value. Detective Sergeant Ennis gave oral testimony before the Court that he had never received the tissue from Sergeant Connolly.

Counsel for the applicant submitted:—

  • (1) that had the CUSUM technique been available to the court of trial it would have raised at least a reasonable doubt that the applicant had spoken the disputed sentence;

  • (2) that, having regard to the blood found in the red Volkswagen, it was beyond belief that such a vital piece of evidence as the tissue was not forwarded to the state forensic laboratory for analysis and, accordingly, the court of trial should have had available to it the results of the analysis, which might have been of assistance in establishing the innocence of the accused; and

  • (3) that the non-disclosure of the circumstances surrounding the forwarding, or not forwarding, of the tissue to the state forensic laboratory and the non-disclosure of the conflict between Sergeant Connolly and Detective Sergeant Ennis as to what happened the tissue was contrary to fair procedures and rendered the conviction of the applicant unsafe and unsatisfactory.

Held by the Court of Criminal Appeal (O'Flaherty, Lavan and Morris JJ.), in quashing the conviction of the applicant and ordering a re-trial, 1, that the Criminal Procedure Act, 1993, empowered the Court to quash a conviction, with or without an order for re-trial, where a convicted person alleged that newly-discovered facts showed that a miscarriage of justice had occurred, and where it was shown that such a miscarriage had occurred, to certify accordingly, thereby entitling the applicant to the payment of compensation.

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

2. That, applying the criteria of the CUSUM technique, the disputed sentence of the applicant was not of sufficient length to enable the technique to be applied satisfactorily and, accordingly, if the CUSUM evidence had been available to the court of trial it would not have raised any doubt in the mind of the court.

3. That the Court was satisfied beyond any doubt that no scientific examination was carried out on the tissue and that the tissue was never forwarded to the State Forensic Laboratory.

4. That it was wholly unreasonable to expect witnesses to retain, over a period of approximately fourteen years, a clear and unambiguous recollection of events, and therefore the conflicts between Sergeant Connolly and Detective Sergeant Ennis as demonstrated in documents prepared since the applicant's trial and demonstrated in their evidence before this Court were not matters to which the Court would have regard in considering whether the applicant's conviction was unsafe and unsatisfactory.

5. That, accordingly, the relevant conflict was that which existed between Sergeant Connolly and Detective Sergeant Ennis at and around the relevant time, namely, in the months of June and July, 1980.

6. That the Act of 1993 was intended to afford relief to applicants who could point to materials which, if they had been available at the trial, might — not necessarily would —...

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