DPP v O'Regan

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,Mr. Justice Fennelly
• Judgment Date: 30 July 2007
• Neutral Citation: [2007] IESC 38
• Court: Supreme Court
• Docket Number: [S.C. No. 43 of 2007]
• Date: 30 July 2007

DPP v O'Regan

In the Matter of an Appeal under Section 29 of the Courts of

Justice Act, 1924

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Thomas O'Regan

Appellant

[2007] IESC 38

Murray, C. J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

No. 43/07

THE SUPREME COURT

CRIMINAL LAW

Appeal

Court of Criminal Appeal - Criminal appeal - Fresh evidence - Application for leave to adduce fresh evidence on appeal - Principles applicable to whether such fresh evidence should be admitted - Tactical decision made by counsel not to call evidence - Whether such decision precludes fresh evidence being adduced at appeal - People (DPP) v Willoughby [2005] IECCA 4 (Unrep, CCA, 18/2/2005) followed; People (DPP) v Cronin [2003] 3 IR 377 (CCA), People (DPP) v Cronin (No 2) [2006] IESC 9, [2006] 4 IR 329 and Lynagh v Mackin [1970] IR 180 considered - Appeal dismissed (43/2007 - SC - 30/7/2007) [2007] IESC 38

People (DPP) v O'Regan

The appellant was charged with a single offence of rape. The complainant did not make a complaint for two years. The second trial convicted the appellant of the offence. Issues arose as to whether the appellant could form the view that certain medical evidence which was available at the time of the trial should have been put in issue by the defence at the time of trial.

Held It is not necessary to assert negligent conduct of the defence at the trial when the appellant was unsuccessful at trial. It is not open to an appellant to hold back on a point of substance for tactical reasons and then seek to deploy the point in a later appeal. The court refused to admit the expert evidence sought to be adduced by the applicant.

Reporter: E.C.

COURTS OF JUSTICE ACT 1924 S29

WILLOUGHBY v DPP UNREP CCA 18.2.2005 2005/58/12223 2005 IECCA 4

CRIMINAL APPEAL ACT 1968 S23

(UK)CANADIAN CRIMINAL CODER v WARSING 1998 3 SCR 576

DPP v CRONIN 2006 2 ILRM 401 2006 IESC 9

DPP v CRONIN 2003 3 IR 377

DPP v CAMPBELL UNREP CCA 4.3.2005 2005/19/3843 2005 IECCA 27

OFFENCES AGAINST THE STATE ACT 1939 S19

MURPHY v MIN DEFENCE & AG 1991 2 IR 161

COURTS OF JUSTICE ACT 1924 S33

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S7

DPP v O'BRIEN UNREP MCCARTHY 29.1.1990 2000/8/2854

DPP v REDMOND UNREP CCA 6.7.2004 2004/17/3842 2004 IECCA 15

DPP v MCLOUGHLIN UNREP CCA 24.6.2002 2003/18/4161RSC O.58 r8

LYNAGH v MACKIN 1970 IR 180

LADD v MARSHALL 1954 1 WLR 1489

SPIVACK v SPIVACK UNREP LAVERY 6.3.1961

1 1. I agree with the order proposed by Kearns J in the judgment he is about to deliver and with his reasons for concluding that the Court should not accede to the application made by the Appellant to admit the alleged new evidence.

2 2. As Kearns J points out, this Court has not previously laid down rules governing the admission of new evidence on appeal in criminal cases.

3 3. Finlay C.J. in Murphy v Minister for Defence [1991] 2 I.R. 161 laid down the following test, quoted by Kearns J, for the admission of new evidence on appeal in civil cases pursuant to Order 58, rule 8 of the Rules of the Superior Courts:

1 1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2 2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3 3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.

4 4. He relied on the authority of Lynagh v. Mackin [1970] I.R. 180. The requirement that the evidence in question must have existed at the time of trial, included in the first of the above three paragraphs was not the subject of argument on this appeal. Nor, indeed was it independently discussed or considered in Murphy v Minister for Defence. It does not appear to be justified by the decision in Lynagh v. Mackin, where both O'Dalaigh C.J. and Budd J based their judgments on the English decision in Ladd v. Marshall [1954] 1 W.L.R. 1489. O'Dalaigh C.J. cited from the judgment of Lord Denning to the effect that:

"... first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible." (emphasis added)

5 5. Walsh J, in his dissenting judgment referred to the additional requirement. He referred to an unreported judgment of 6th March, 1961in Spivack v Spivack.

6 6. The applicable rules have been considered to date only in civil cases, where the matter is governed by an express provision of the Rules of Court. Since this point was not raised on the hearing of the present appeal, I believe that the requirement that the proposed new evidence have been in existence at the time of trial should not be considered as established as being a necessary requirement in criminal cases. It is not easy to see why new, relevant and important evidence should have to be submitted to a test of having been in existence at the time of trial. With advances in scientific knowledge, it is conceivable, at least, that new and relevant evidence ( a later DNA analysis would be one example) would be discovered and even come into existence after a trial.

7 7. The first heading of the test followed in Lynagh v Mackin sufficiently serves the interests of justice. The second and third tests are really stating the obvious, namely that the evidence must be both valuable and credible. The real focus is on the first test. If the evidence could not have been discovered by the exercise of reasonable diligence and it satisfies the second and third tests it should be admitted. If it could not, it should not be admitted. I am not convinced that its is necessary to overlay the first test with additional public policy considerations.

8 8. In criminal cases, the courts will not, for the reasons given by Kearns J, close their eyes to available new evidence which might correct an injustice.

9 9. Having said all that, I entirely agree with the judgment of Kearns J regarding the suggested new evidence in the present case. The proposed evidence could, to quote the first leg of the test adopted in Lynagh v Mackin have been discovered by the exercise of due diligence at or prior to the trial. A considered and responsible professional decision was taken by counsel not to seek it. In any event, it does not come anywhere close to establishing as a matter of certainty that the crime could not have been committed.

1 JUDGMENT of Mr. Justice Kearnsdelivered the 30th day of July, 2007.

2 On the 7th December 2006, the Attorney General certified the following question under s. 29 of the Courts of Justice Act, 1924:-

"Whether in all the circumstances the Court of Criminal Appeal was correct in refusing to admit the expert evidence sought to be adduced by the applicant, to the effect that as a matter of certainty the rape did not occur as alleged by the complainant; and that as a matter of probability, no rape occurred; and in particular:

(a) Whether the criteria for deciding whether to admit fresh evidence in the Court of Criminal Appeal includes a requirement that the evidence was not available to the appellant prior to the trial; or whether the said issue is merely an important factor in considering the requirements of justice in all the circumstances of the case;

(b) Where an application is made to adduce in the Court of Criminal Appeal fresh evidence that was available prior to the trial, is it necessary to assert or establish unreasonable, irrational, illogical, or negligent conduct of the defence at the trial?"

3 This certification followed a refusal by the Court of Criminal Appeal on the 16th June, 2006 to certify a question in similar terms to this Court pursuant to s. 29 of the Courts of Justice Act, 1924 on the grounds that:-

4 (a) The evidence sought to be adduced was opinion evidence of medical experts and not evidence of factual matters;

5 (b) In both trials, it had been open to the appellant to seek expert opinion on the medical reports and information available at the time of the first and second trials, and that he had chosen not to do so;

6 (c) The decision by the appellant and his legal advisors not to seek expert medical opinion was a considered decision, and took into account the potential damage to the accused if the medical evidence had been opened to the jury;

7 (d) The considered decision by the appellant's legal advisors was a reasonable one on the facts of the case;

8 (e) The medical evidence upon which the expert opinion evidence was subsequently sought was known to the appellant and his legal advisors at the time of the trial;

9 (f) That whilst it might be desirable to have a ruling from the Supreme Court on the issue of fresh evidence in a criminal trial, this was not an appropriate case on its facts to seek such a ruling as the case was not one within the category of cases involving a point of law of exceptional public importance on its particular facts.

10 Subsequent to the refusal of the Court of Criminal Appeal to certify a question, the appellant's solicitors wrote to the Attorney General and asked him to certify the said question and the Attorney General did so on the 7th December, 2006. The Attorney General did not however seek to be represented or heard on the hearing of the appeal before this Court.

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