DPP v S. W
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 08 December 2022 |
| Neutral Citation | [2022] IECA 310 |
| Year | 2022 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Nos: 106/2011 |
[2022] IECA 310
Edwards J.
McCarthy J.
Keane J.
Record Nos: 106/2011
THE COURT OF APPEAL
Conviction – Indecent assault – Adverse media coverage – Appellant seeking to appeal against conviction – Whether the appellant’s trial was satisfactory
Facts: The appellant was convicted by a jury before the Dublin Circuit Criminal Court on the 21st of October 2010 on two counts of indecent assault, contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981. The relevant bill number in the proceedings before the Dublin Circuit Criminal Court was DU1172/08. On the 18th of November 2010 the appellant was sentenced to three years imprisonment on both counts, the said sentences to run concurrently inter se, but consecutively to the sentences of 10 years imprisonment imposed on the 19th of February 2010 in the Central Criminal Court on Bill No. CC0091/2008. The appellant appealed to the Court of Appeal against his conviction only. The appellant’s notice of appeal specified the following as the grounds of appeal being relied upon: (i) judicial bias; (ii) adverse media coverage leading up to and on the day before the trial was due to begin; (iii) the court had no jurisdiction to try the case; (iv) prosecutorial misconduct; (v) his constitutional right to due process was deliberately and consciously impaired by denial of equality of arms and by the failure of former legal representatives to release his files pertaining to the case to him in advance of the trial and/or at all; and/or (vi) the failure of the State prosecutor to furnish him in advance of the trial a copy of all documentation pertaining to the case as requested by him in light of the difficulty in that regard with his former legal people’s failure to release such files. In the appellant’s written submissions ground (iii) was flagged as having been withdrawn.
Held by the Court that no case of either subjective or objective bias had been made out. Accordingly, the Court rejected ground (i). The Court considered that, firstly because of the egregious nature of the Sunday World’s publication, and, secondly, because of the trial judge’s failure, having been provided with a copy of the offending publication, to revisit with the jury the need to decide the case on the evidence and the evidence alone and to eschew extrinsic material that might influence them (and in doing so to tailor that further warning and those further instructions specifically to any newspaper and print media references to the appellant and/or the trial at hearing which they might have encountered or might yet encounter), it could not be concluded that the appellant’s trial was satisfactory and that his conviction was safe. In the circumstances the Court allowed the appeal on ground (ii). The Court found no error in how the trial judge dealt with the complaints the subject matter of grounds (iv), (v) and (vi) and had no hesitation in rejecting them.
The Court held that the appeal must be allowed on ground (ii) only.
Appeal allowed.
Judgment of the Court delivered on the 8th day of December, 2022 by Mr. Justice Edwards.
This judgment concerns an appeal by the appellant against his conviction by a jury before the Dublin Circuit Criminal Court (McCartan J. presiding) on the 21st of October 2010 on two counts of indecent assault, contrary to common law and as provided for by s.10 of the Criminal Law (Rape) Act, 1981. The relevant bill number in the proceedings before the Dublin Circuit Criminal Court was DU1172/08.
On the 18th of November 2010 the appellant was sentenced to three years imprisonment on both counts, the said sentences to run concurrently inter se, but consecutively to the sentences of 10 years imprisonment imposed on the 19th of February 2010 in the Central Criminal Court on Bill No. CC0091/2008.
The appellant has appealed against his conviction only.
The prosecution case was that on two occasions between the 1st of May 1988 and the 30th of September 1988, at a specified address on the south side of Dublin City, the complainant was indecently assaulted by the appellant whilst at the appellant's home. The complainant was 7 years old at the time and she was attending the house as she was friendly with the appellant's daughter. The complainant was the only witness as to fact in the trial. The appellant represented himself at the trial. As none of the grounds of appeal are concerned with the evidence adduced at trial, or with the legal ingredients of the alleged offences, but rather are solely concerned with matters of criminal procedure, the correctness or otherwise of rulings made by the trial judge on issues of procedure, and the fairness of the trial, it is not necessary for the purposes of this judgment to review the evidence adduced in support of the prosecution's case, or to further particularise the nature of the indecent assaults said to have been perpetrated on the complainant by the appellant.
The appellant's Notice of Appeal specified the following (which were not originally numbered but which we have numbered with roman numerals for convenience) as the grounds of appeal being relied upon:
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(i) Judicial Bias;
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(ii) Adverse media coverage leading up to and on the day before the trial was due to begin;
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(iii) Court had no jurisdiction to try the case;
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(iv) Prosecutorial misconduct;
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(v) Constitutional right to due process deliberately and consciously impaired by denial of equality of arms and by the failure of former legal representatives to release my files pertaining to the case to me in advance of the trial and/or at all to the present date;
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(vi) And/or the failure of the State prosecutor to furnish me in advance of the trial a copy of all documentation pertaining to the case as requested by me in light of the difficulty in that regard with my former legal people's failure to release such files.
The Notice of Appeal went on to indicate that the appellant wished to be present at the hearing “subject to my being provided with the transcripts of the proceedings … to enable me to submit the further reasons to be offered as soon after I am furnished with the transcripts of the trial …”.
Although the appellant represented himself at trial, he was represented by a solicitor, and by senior and junior counsel, at the hearing of the appeal. In advance of the appeal both sides provided the Court with detailed written submissions, as well as copies of any authorities being relied upon, and the Court is grateful to have received this assistance.
In the appellant's written submissions grounds no.'s (i) and (ii), respectively, were dealt with separately and individually. Ground no. (iii) was then flagged as having been withdrawn, while grounds (iv), (v) and (vi) were dealt with together. For convenience, we propose to adopt the same approach.
This ground of appeal arises out of the refusal of the trial judge to recuse himself in response to an application by the appellant that he should do so, made on the 18th of October 2010 following the appellant's arraignment, at which not guilty pleas were entered on his behalf. It is important to set out the background to this application and the context in which it came to be made.
The background and context were as follows. Earlier that day, and in advance of his arraignment and the selection of a jury, the judge in question had dealt with several preliminary issues which the appellant had sought to raise in connection with his impending trial. These issues included a complaint about an alleged failure on the part of the State to provide the appellant with the trial papers; a challenge to the Return for Trial; a challenge to the lawfulness of his production before the court; a complaint that the appellant was disadvantaged because a potential witness, a Mr Williams, was not on the Book of Evidence; a contention that he should be allowed to see the Garda file and that the Garda officer in charge of the file, and the State Solicitor should be made available to him as witnesses; a contention that there had been undue delay in bringing the matter on for trial; and a complaint about adverse pre-trial publicity involving articles in issues of the Sunday World, the Star and the News of the World newspapers which the appellant had been given to believe had been recently published.
In raising these issues in advance of the trial the appellant made clear that he was not seeking to have his impending trial adjourned. In respect of certain complaints, he was requesting mandatory orders from the court that various persons should do various things. In respect of other complaints, he was asking the court to find that it was without jurisdiction. In respect of yet other complaints, he was asking the court to invoke its jurisdiction to punish alleged contemnors.
It requires to be stated that the transcript reveals that each of the appellant's said complaints were received courteously by the judge concerned, that the appellant's submissions were listened to without inappropriate interruptions or curtailment, and that each complaint was in due course individually addressed.
In the case of his complaint about the trial papers, he was seeking to be furnished with the necessary papers. It bears recording that the application was not opposed by the State who were concerned simply to make the point that the appellant had already been furnished with the required papers on no less than four previous occasions, a contention the appellant disputed. The judge dealt with it as follows:
“…Ms Burns has said that the State can have no difficulty in furnishing him with a further set of the papers at this point...
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