DPP v Rawley
| Jurisdiction | Ireland |
| Judgment Date | 30 June 1997 |
| Date | 30 June 1997 |
| Docket Number | [C.C.A. No. 108 of 1995] |
| Court | Court of Criminal Appeal |
Court of Criminal Appeal
Criminal law - Alibi - Notice of alibi given outside the prescribed period - Burden of proof - Judge's direction on burden of proof - Jury's questions after retiring - Admission of new evidence on appeal - Criminal Justice Act, 1984 (No. 22), s. 20, sub-s. 1.
Section 20, sub-s. 1 of the Criminal Justice Act, 1984, provides inter alia that on a trial on indictment for an offence the accused shall not without the leave of the court adduce evidence in support of an alibi unless he gives notice of particulars of the alibi within 14 days of the notice sending the accused forward for trial.
The accused pleaded not guilty to charges of robbery and possession of a knife. He was sent forward for trial in the Circuit Criminal Court on the 11th May, 1995 and an alibi warning was given pursuant to s. 20 of the Criminal Justice Act, 1984. Three days before the trial commenced in October, 1995, a late notice of alibi was served. The trial judge refused an application made after the prosecution case ended, for liberty to call alibi evidence. During the course of his evidence at the trial the accused explained the fact that he had been seen running after the offence, on the grounds that it was raining. During the prosecution case, no witness was cross-examined to suggest this as his reason for running. The arresting garda gave evidence that it was not raining. In his charge to the jury the trial judge said ". . . the accused says he was at a funeral and then he had gone to a friend's house which he said initially was two minutes walk away from his house. On cross-examination he said it was two, perhaps four. You weigh up all the witnesses in this case and having heard the evidence, you must, as I say, be persuaded by the prosecution beyond a reasonable doubt before you convict any accused."
After the jury retired they returned with three questions in relation to the evidence given at the trial. The trial judge replied that he could not re-open matters of evidence. The accused was subsequently found guilty of the offences charged.
The accused sought leave to appeal his conviction and sentence in the Court of Criminal Appeal on the ground (i) that the late notice of alibi evidence should have been admitted; (ii) that the charge to the jury was inadequate, in that the trial judge ought to have told the jury that if they had any reasonable doubt as to the truth of the accused's evidence they should have given him the benefit of the doubt; (iii) that the trial judge's reply to the jury's questions was incorrect. The accused also sought to adduce fresh evidence about the weather on the day that the offence was committed.
Held by the Court of Criminal Appeal (Barron, Morris and Kinlen JJ.) in refusing leave to appeal, 1, that in exercising the discretion under s. 20 of the Act of 1984, to admit alibi evidence notified out of time, the trial judge should have taken into account that the purpose of the section was to prevent prejudice to the prosecution. At the same time the trial judge must take into account that matters of fact are for the jury and that an accused should not lightly be cut off from presenting his case on the facts to the jury.
2. That the strength of alibi evidence was of less significance than whether it would have afforded a defence if accepted or had been found on investigation to be genuine.
3. That an application for extended leave to enter alibi evidence should be heard on evidence. Where an adjournment of the trial was granted or the trial was postponed to enable the evidence to be investigated, a date should have been fixed prior to the date to which the trial was postponed or adjourned, to enable a final determination of the application for leave to adduce the alibi evidence.
4. That in the present case where the notice of alibi was served only three days before the trial was due to commence, and no request was made to the prosecution to consent to the admission of the evidence and where the application was not made until the prosecution case had ended, the application was properly refused.
R. v. Sullivan (1970) 54 Cr. App. R. 389 distinguished.
5. That the trial judge's direction did not infringe the rule that a jury should be charged in such a way as to give the impression that an onus of proof as to any matter rested on the accused.
People (Attorney General) v. Oglesby [1966] I.R. 162 distinguished.
6. The trial judge was correct in...
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