DPP v Rattigan

CourtSupreme Court
JudgeMs. Justice Dunne,Ms. Justice Iseult O'Malley
Judgment Date12 December 2017
Neutral Citation[2017] IESC 72
Docket Number[S.C. No. 57 of 2015],[Supreme Court Appeal No. 57/2015] [Court of Criminal Appeal No. 12/2010]
Date12 December 2017

[2017] IESC 72


O'Malley Iseult J.

Dunne J.

Clarke C.J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley Iseult J.

[Supreme Court Appeal No. 57/2015]

[Court of Criminal Appeal No. 12/2010]


Crime & sentencing – Evidence – Murder – Out of court statements – S 16 of Criminal Justice Act 2006 – Comments made by trial judge

Facts: The appellant had been charged with murder in respect of the death of Declan Gavin in 2001. He sought to prohibit his trial arguing that there had been undue delay, but the trial ended in a disagreement. A fresh trial was held, and he was convicted of the charge. On appeal, the Court of Appeal had certified a question for the Supreme Court in respect of the application of s 16 of Criminal Justice Act 2006 as to statements made before the coming into of force of that provision. Further grounds of appeal were submitted, including a submission that comments made by the trial judge as part of summing up were unfair.

Held by O'Malley J, Clarke CJ and McKechnie J concurring, that the appeal would be allowed. The Court was not persuaded that s 16 breached the principle against retrospectivity, or that the delay in the case should have compelled the trial judge to refuse to proceed under s 16. However, the Court was satisfied the comments made by the trial judge during his summing up may have influenced the jury as to the judge's own opinions. On that basis the appeal would be allowed.

Dunne J handed down a dissenting judgment with which Charleton J concurred.

Judgment of Ms. Justice Iseult O'Malley delivered the 12th day of December 2017

This appeal, brought on foot of a certificate granted by the Court of Criminal Appeal, concerns the appellant's conviction in 2009 for the murder of Declan Gavin on the 25th August, 2001.


There are two central issues in the appeal. The first is the applicability in the appellant's case of the procedure provided for in s. 16 of the Criminal Justice Act 2006 (hereafter 's. 16' or 'the section'). That provision permits, in certain defined circumstances, the use of out-of-court statements as evidence of the truth of the contents thereof. The appellant contends that the procedure was not lawfully available in his trial. His argument is that the Act, properly interpreted, did not apply to cases such as his where the relevant statements had been taken, the charge preferred and the return for trial ordered before the statute came into force. The primary submission is that the newly-introduced procedure affected his fair trial rights to such an extent that it could not be regarded simply as a change in procedural or evidential rules and therefore should, in accordance with the principles of statutory interpretation, have been presumed not to apply retrospectively.


The question certified by the Court of Appeal on this issue is whether s. 16 applies to statements of evidence made prior to the coming into force of the Act of 2006.


In an alternative submission on the section, the appellant argues that, having regard to the history of his case and in particular to what the courts had already found to be culpable prosecutorial delay, the trial judge should not have permitted the prosecution to utilise the new procedure. Although the bulk of the evidence in the case was gathered in 2001, the appellant was first charged with the offence in 2003. However he did not stand trial until 2009. This lapse in time, the reasons for which are considered below, was severely criticised by this Court in judicial review proceedings, although the trial was permitted to proceed. By the time the matter came on for trial the Oireachtas had enacted the Act of 2006. The appellant says that in that situation it was unfair to allow the prosecution in effect to benefit from its own blameworthy delay.


On foot of a motion brought before this Court pursuant to the rules applicable to appeals from the Court of Criminal Appeal, the appellant was given leave to argue two further grounds of appeal. Both relate to the summing up to the jury by the learned trial judge. At the trial, counsel for the accused objected to a particular passage, at the end of what was otherwise described by counsel as a 'model' charge, and applied unsuccessfully for a discharge of the jury. The appellant contends that in the particular passage the judge failed to maintain an impartial and fair role; that as a result his charge was unbalanced and unfair and effectively amounted to a direction to the jury to convict; and that the judge erred in refusing an application to discharge the jury.

The procedural history of the case

Declan Gavin was stabbed to death in the early hours of the 25th August, 2001, in Crumlin Shopping Centre. The appellant was arrested about a week later on suspicion of murder. While he was in custody he was interviewed and finger-printed. He was again arrested and questioned on the 22nd November, 2001. Subsequent events are described in detail in the judgments in this Court in Rattigan v The Director of Public Prosecutions [2008] 4 I.R. 639. In those judicial review proceedings the appellant sought to prohibit his trial on grounds of, inter alia, delay. Although he was unsuccessful a clear view was taken of the delay by the High Court and Supreme Court judges.


Most of the proposed evidence in the case was gathered by the investigating gardaí in the latter part of 2001. The investigation file was sent to the Director of Public Prosecutions in March, 2002. The Director did not give directions for the arrest and charge of the appellant until September, 2003. After his arrest the appellant was remanded in custody pending service of a book of evidence in the District Court. However, after seven appearances in that Court the book was still not ready and on the 18th December, 2003, the District Judge struck the matter out. Almost sixteen months then elapsed before the appellant was again arrested and charged, in April, 2005. He then instituted judicial review proceedings seeking to prohibit the trial on grounds of, inter alia, delay. His application was refused in the High Court in a judgment delivered on the 30th June, 2006, by O'Higgins J. (see Rattigan v Director of Public Prosecutions [2006] IEHC 239). The appeal came on for hearing in this Court on two dates in October, 2007 and the Court gave judgment in May, 2008.


The dates relating to the court hearings may be considered relevant because s. 16 of the Criminal Justice Act 2006 was brought into force on the 1st August, 2006. In the circumstances, it clearly played no role in the decision of the High Court and does not appear to have been raised in the appeal therefrom.


The prosecutorial delay in the case was described in the High Court as 'culpable and unjustified'. Geoghegan J., who gave the leading judgment in this Court, agreed. Hardiman J. described the delay as 'unforgivable and unexplained'. Nonetheless, it must be stressed that the Court refused to grant prohibition. Issues raised by the appellant as to the non-availability of potential defence witnesses, the introduction of new prosecution evidence, the failure to videotape interviews with certain prosecution witnesses and adverse pre-trial publicity were not considered, on the facts of the case, to demonstrate a real risk of an unfair trial. Geoghegan J. stressed that it was the obligation of a trial judge to give appropriate directions according to the circumstances of the case.


The first trial of the appellant, in early 2009, ended in a disagreement. The trial with which the Court is now concerned commenced in November, 2009 and concluded with the conviction of the appellant on the 17th December, 2009.

The case against the appellant

The central facts of the murder are summarised in paragraph 4 of the judgment of the Court of Criminal Appeal. No issue is taken with that summary and accordingly I reproduce it here:

'In the early morning of Saturday the 25th of August, there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan Micra car. The car was described variously as grey, gold, or "that imported beige colour". It was recognised as a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant described by the witnesses as the "knife man". The door of the Abrakebabra was closed by the security guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described as "a blood like substance", was found on the window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also identified as that of Brian Rattigan.'


It should be said here that the 'blood-like substance' referred to was assumed, for the purposes of the earlier judicial review proceedings, to be blood but in the event was never proved to be such.


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