DPP v Shorrt

• Jurisdiction: Ireland
• Judgment Date: 19 June 2002
• Date: 19 June 2002
• Docket Number: [No.
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[No. 2 C.P.A. of 1999]

The People (Director of Public Prosecutions) v. Shortt (No. 1)

In the matter of an application pursuant to s. 9 of the Criminal Procedure Act

1993.

The People (Director of Public Prosecutions)

Respondent

and

Frank Shortt, Applicant (No. 1)

Cases mentioned in this report:-

Brown v. The Eastern and Midlands Railway Company (1889) 22 Q.B.D. 391.

Jones v. Stephens (1822) 11 Price 235.

Kavanagh v. The Leader (1956) [2001] 1 I.R. 538.

The People (Director of Public Prosecutions) v. Meleady (No. 3) [2001] 4 I.R. 16.

The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225.

R. (Mullen) v. the Secretary of State for Home Department [2002] 1 W.L.R. 1857; [2002] All E.R. 291.

Scott v. Sampson (1882) 8 Q.B.D. 491.

Criminal law - Evidence - Application for certificate of miscarriage of justice - Admissibility of new evidence - Whether evidence should be limited to that heard at original trial - Whether new evidence relevant to issues - Whether misconduct evidence admissible in direct evidence of prosecution - Criminal Justice (Evidence) Act, 1924 (No. 37), s. 1 - Criminal Procedure Act, 1993 (No. 40), ss. 2, 3, and 9.

Application to admit new evidence.

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

On the 20th November, 2000, the Court of Criminal Appeal on consent quashed the applicant's conviction in accordance with s. 2 of the Criminal Procedure Act, 1993. The applicant further sought a certificate of miscarriage of justice, also in accordance with s. 2.

At the conclusion of the giving of evidence on behalf of both parties, the respondent sought to introduce further witness evidence.

This issue was heard by the Court of Criminal Appeal (Hardiman, O'Donovan and O'Higgins JJ.) on the 19th June, 2002.

Section 9(1) of the Criminal Procedure Act, 1993, provides for the payment of compensation where the court or the court of retrial has certified that a newly-discovered fact shows that there has been a miscarriage of justice.

The applicant successfully applied, with the consent of the respondent, to have his conviction quashed by the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act, 1993, on the grounds that since the expiry of his sentence there were newly-discovered facts which had been unknown to him during his original trial, specifically that there had been a non-disclosure or unavailability of evidential material.

The present application arose in the context that the applicant's evidence on his application for a certificate of miscarriage of justice had concluded, as had the respondent's evidence in rebuttal. However, the respondent subsequently applied to call further witness evidence relating to incriminating statements allegedly made by the applicant subsequent to the present charges being laid against him.

Held by the Court of Criminal Appeal (Hardiman, O'Donovan and O'Higgins JJ.), in refusing the application, 1, that an application for a certificate of a miscarriage of justice should be in the same position whether the application was heard in the Court of Criminal Appeal or in the court of retrial. It was not possible to limit the evidence heard by a court of retrial to that relevant to the original trial, it was similarly not possible to limit the evidence before the Court of Criminal Appeal.

The People (Director of Public Prosecutions) v. Pringle (No. 2) [1997] 2 I.R. 225 applied.

2. That the first condition of admissibility was that the evidence must be relevant to the matter in issue and, while there were exceptions to the admissibility of relevant evidence, irrelevant evidence was never admissible.

3. That evidence might generally not be given of a party's misconduct on other occasions in the past if its sole purpose was to show that he was likely to have conducted himself in the manner alleged by his adversary on the occasion under inquiry.

Brown v. The Eastern and Midlands Railway Company (1889) 22 Q.B.D. 391 approved.

4. That, if it was not permissible to ask a defendant who gave evidence questions tending to show that he had committed an offence other than that with which he was charged, or that he was of bad character, it could not be permissible for the prosecution to prove the same in direct evidence and any attempt to do so would lead to a discharge of the jury.

Scott v. Sampson (1882) 8 Q.B.D. 491;Jones v. Stephens (1822) 11 Price 235 andKavanagh v. The Leader[2001] 1 I.R. 538 followed.

Ex tempore.

In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the Court of Criminal Appeal was delivered by a single member.

Hardiman J. 19th June, 2002

The following is the essential background to this application.

On the 2nd December, 1999, the applicant sought to have his conviction quashed pursuant to s. 2 of the Criminal Procedure Act, 1993, on the grounds that, since the expiry of his sentence, new and relevant facts which were unknown to him during his trial in February, 1995, had become available.

By order dated the 20th November, 2000, the Court of Criminal Appeal quashed the conviction and recited:-

"And on counsel appearing for the Director of Public Prosecutions intimating to the court that there was no opposition to the application for an order quashing the said conviction on the basis that the matters referred to in para. 2(c) of the grounds of appeal constituted a new or newly discovered fact within the meaning of s. 2 of the Act of 1993, and that the Director would not be seeking an order directing the retrial of the applicant on the charges the subject matter of the said conviction."

Paragraph 2(c) of the grounds of appeal is as follows:-

"The applicant has now discovered from inquiries he has carried out that serious allegations have been...