DPP v Shortt (No 2)

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date31 July 2002
Date31 July 2002
Docket Number[C.C.A. No. 2 of 1999]
The People (Director of Public Prosecutions) v. Shortt (No. 2)
In the matter of s. 9 of the Criminal Procedure Act, 1993. The People (Director of Public Prosecutions)
Respondent
and
Frank Shortt, Applicant (No. 2)
[C.C.A. No. 2 of 1999]

Court of Criminal Appeal

Criminal law - Appeal - Miscarriage of justice - New or newly discovered fact - Whether applicant entitled to certificate that newly discovered fact showed miscarriage of justice - Whether certificate automatic consequence of quashing of conviction - Whether presumption of innocence relevant - Whether innocence of applicant necessary to grant certificate - Whether reasonable doubt in the mind of jury necessary - Whether onus of burden of proof on applicant - Whether applicant in more favourable position than applicant in normal appeals procedure - Criminal Procedure Act, 1967 (No. 12), ss. 6(4) and 11 - Criminal Procedure Act, 1993 (No. 40), ss. 2, 3(1)(a) and 9.

Section 9 of the Criminal Procedure Act, 1993, provides as follows:-

"(1) Where a person has been convicted of an offence and either:-

  • (a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and

  • (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice, or

  • (b) (i) he has been pardoned as a result of a petition under section 7, and

  • (ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice,

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person."

The applicant was convicted of certain offences and served a three year sentence in prison. His conviction rested mainly on the evidence of the principal prosecution witness, a detective garda. His evidence and statement suggested that the applicant was present during the commission of the alleged offences. The applicant's presence was central to his conviction. Subsequent to his release from prison, newly discovered material came to light. The applicant's conviction was quashed which was unopposed by the respondent.

The newly discovered material included, inter alia,allegations that the principal prosecution witness had perjured himself during the trial. The principal prosecution witness's original statement was found with certain annotations. The annotations suggested the applicant was present during the commission of the offences. The original statement did not suggest this. A typed version of this statement including the annotations was used at the trial of the applicant.

The applicant sought a certificate that the newly discovered material constituted a miscarriage of justice. Counsel for the applicant argued that as the respondent had not objected to the quashing of the applicant's conviction, it implied there was a miscarriage of justice. He argued that, upon quashing the conviction, the applicant's presumption of innocence revived.

Held by the Court of Criminal Appeal (Hardiman, O'Donovan and O'Higgins JJ.), in granting the relief sought, 1, that a miscarriage of justice could only be certified on the basis of newly discovered facts. The court was concerned with whether the newly discovered facts were tantamount to providing a miscarriage of justice. It was not confined to the question of actual innocence but extended to the administration of the justice system itself. The court was not making a finding that the applicant was innocent of actual involvement in the events. Innocence of that kind would not have been proved as a result of an acquittal by a jury. A certificate could have been granted even if there was involvement by the applicant.

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

2. That the applicant was required to allege that the newly discovered facts constituted a miscarriage of justice in relation to the conviction. The applicant was not required to satisfy the court that the allegation was well founded as a precondition to the court exercising its jurisdiction to quash a conviction. It was sufficient for the applicant to point to material which, if it had been available at the court of trial might, but would not necessarily have raised reasonable doubt in the minds of the jury.

3. A certificate of miscarriage of justice was not an automatic consequence of an order quashing the conviction since such an order could be made on the ground that a miscarriage of justice might have occurred but not necessarily so.

The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517 followed.

4. That an applicant whose application was successful should not be in a more favourable position when obtaining compensation than any other applicant whose conviction was quashed in a normal appeal procedure.

5. That the onus of proof was on the applicant and was not a trial at first instance where the onus was on the respondent to prove the guilt of the applicant. The presumption of innocence had no place in the inquiry.

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

6. That the mere existence of a newly discovered fact in law and in logic was incapable, in itself, of leading to a successful result. The newly discovered fact may be irrelevant or of only slight relevance but may leave untouched a compelling body of evidence. The applicant was not confined to newly discovered facts known to him at the commencement of the proceedings before discovery or disclosure.

Cases mentioned in this report:-

J. O'C. v. Director of Public Prosecutions [2000] 3 I.R. 478.

The People (Director of Public Prosecutions) v. Meleady [1995] 2 I.R. 517.

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.

Application for a certificate pursuant to s. 9 of the Criminal Procedure Act, 1993.

The facts of the case 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.

The applicant was convicted before the Dublin Circuit Criminal Court (Buchanan J. and a jury) on the 28th February, 1995 and was sentenced to three years imprisonment and fined £10,000. The applicant appealed his sentence and conviction to the Court of Criminal Appeal. The appeal against conviction was dismissed on the 23rd June, 1996 and the appeal against sentence was allowed only to the extent that the fine was remitted.

Following his release from prison and by notice of appeal filed on the 2nd December, 1999, the applicant appealed on grounds that certain newly discovered materials constituted a miscarriage of justice and on the 20th November, 2000, the conviction was quashed pursuant to s. 2 of the Criminal Procedure Act, 1993, on consent. The applicant applied for a certificate pursuant to s. 9 of the Act of 1993.

The application was heard by the Court of Criminal Appeal (Hardiman, O'Donovan and O'Higgins JJ.) on the 7th to 10th, 13th, 14th and 29th May, 2002, on the 4th to 7th, 11th to 14th, 18th, 19th June, 2002 and the 11th July, 2002.

Cur. adv. vult.

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

Hardiman J.

31st July, 2002

[Hardiman J. set out in detail the evidence in the case which is summarised as follows:-

The applicant was convicted of certain offences in Dublin Circuit Court (Buchanan J. and a jury) on the 28th February, 1995 and was sentenced to three years imprisonment and fined £10,000. The applicant served his sentence less statutory remission. On the 2nd December, 1999, the applicant filed a notice of appeal pursuant to s. 2 of the Criminal Procedure Act, 1993, seeking to quash his conviction on the grounds that newly discovered material constituted a miscarriage of justice.

On the 20th November, 2000, counsel for the respondent told the court there was no opposition to the quashing of conviction on the grounds that certain new matters constituted newly discovered material within the meaning of s. 2 of the Act of 1993. The respondent did not seek an order directing a retrial.

The applicant then brought the present application to the court pursuant to s. 9(1) of the Act of 1993, to certify that the newly discovered material constituted a miscarriage of justice.

Under the Criminal Procedure Act, 1967, the applicant was returned for trial to the Circuit Court following service of the book of evidence. A significant part of the applicant's case centres on a notice of additional evidence served on the 4th October, 1994.

The advice on proofs prepared by counsel for the respondent outlined weaknesses in the case. It revealed insufficient evidence to put the applicant on trial. It outlined concerns that the applicant was not present when the drugs were allegedly changing hands. It also raised concerns that the applicant did not know what was going on in his premises. The principle prosecution witness was a detective garda. His original statements focused on the fact that drug dealing took place on the premises rather than that the applicant was aware of the dealing.

In response to the advice on proofs, the principal prosecution witness prepared a second statement. This was done with the help of a superintendent who annotated the original principal prosecution witness's statement. This was done in order to expand the statement. The amended statement...

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