DPP v T.O'D (No. 2)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 01 June 2017 |
| Neutral Citation | [2017] IECA 173 |
| Docket Number | Record No. 9/2015 |
| Court | Court of Appeal (Ireland) |
| Date | 01 June 2017 |
[2017] IECA 173
Record No. 9/2015
THE COURT OF APPEAL
Costs – Conviction – Indecent assault – Appellant seeking an order for his costs of the appeal – Whether appellant should be paid his costs of appealing his conviction
Facts: The Court of Appeal, on the 22nd May 2017, quashed the conviction of the appellant on the 27th June 2014 for the indecent assault of a sixteen year old boy, on an occasion between the 1st March and the 30th April 1979, at a boarding school in Co Cork. The Court so found having identified an error of principle on the part of the trial judge in the manner in which he exercised his discretion not to give a corroboration warning. On the 22nd May 2017 the Court refused the application of the respondent, the DPP, for a re-trial of the appellant. The court’s reason for so exercising its discretion not to direct a re-trial included the fact that the appellant had completed his custodial sentence, the antiquity of the offence and the appellant’s age, being seventy four years. The appellant applied to the Court seeking an order for his costs of the appeal. That application was resisted by the respondent.
Held by the Court that, having considered the criteria in DPP v Bourke Waste Removal Limited [2010] IEHC 122: (a) the prosecution was warranted; (b) the case against the appellant was one of very significant antiquity; (c) while the outcome of the prosecution in the Circuit Criminal Court was a verdict of guilty, that verdict was quashed by order of the Court, making it appropriate that the Court approach the application for costs as if the appellant had been acquitted, having regard to the reasons for his conviction appeal being allowed; (d) there could be no criticism as to the manner in which the appellant has met the proceedings.
The Court held that the appellant should be paid his costs of appealing his conviction.
Application granted.
On the 22nd May 2017, this court quashed the conviction of the appellant on the 27th June 2014 for the indecent assault of N, then a sixteen year old boy, on an occasion between the 1st March and the 30th April 1979, at a boarding school in Co Cork.
The reasons for quashing the conviction are fully set out in this court's judgment delivered on the 22nd May 2017. Briefly stated, this court so found having identified an error of principle on the part of the learned trial judge in the manner in which he exercised his discretion not to give a corroboration warning.
As of the date of this court's hearing of the appeal (the 24th March 2017) the appellant had served the custodial element of the sentence imposed in the Circuit Criminal Court, being five years imprisonment, with the final two years suspended.
On the 22nd May 2017 the court refused the respondent's application for a re-trial of the appellant. The court's reason for so exercising its discretion not to direct a re-trial included the fact that the appellant had completed his custodial sentence, the antiquity of the offence and the appellant's age, being seventy four years. The court acknowledged that the error of principle it identified as undermining the conviction was capable of rectification in a new trial.
The appellant now seeks an order for his costs of the appeal, and that application is resisted by the respondent. No application to recover the costs of the trial in the Circuit Criminal Court has been made. The appellant has not benefited from State funded legal aid.
The jurisdiction to award costs in any matter is derived from Order 99 of the Rules of the Superior Courts. The relevant provisions of Order 99 are as follows:-
Rule I:
Subject to the provisions of the Acts, and any other statutes relating to costs and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.
(3) Subject to sub rule (4A) the costs of every action, question, and issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.
(3A) Subject to sub rule (4A) the Court of Appeal shall when determining liability for the cost of an appeal or an application for leave to appeal, have regard to:-
(a) The number and extent of the issues raised, pursued or contested by the respective parties on the appeal or application and,
(b) Whether it was reasonable for a party to raise, pursue or contest the issue, or issues concerned.
(4) Subject to sub rule (4A) the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered follow the event.
(4A) The High Court, the Court of Appeal or the Supreme Court upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.’
The jurisdiction to award costs pursuant to Order 99 of the Rules of the Superior Courts in criminal cases was confirmed by the Supreme Court in People (Attorney General) v. Bell [1969] IR24, but on the basis that sub-rules (3) and (4) did not apply to criminal proceedings. This, in effect, means that a decision to award or refuse costs in a criminal case is a matter for the court's discretion exercised judicially.
Applications for costs by successful defendants in criminal cases are relatively rare because most are processed with the benefit of State provided legal aid. In civil cases, the general rule is that the loser pays the winner's costs. It is a rule occasionally departed from in particular circumstances on the basis of the court's discretion to so decide. In Dunne v. Minister for Environment [2007] IESC 60, Murray C.J. stated:-
‘Where a court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasonable basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which are involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factor or combination of factors in the context of the individual case which determine the issue.’
In DPP v. Kelly [2007] IEHC 450, Charleton J. refused an application by an aquitted murder accused for an order for costs against the Director. In his judgment, Charleton J. suggested that a court, in dealing with such an application in a criminal case, might consider the following criteria, and which were not intended to be exhaustive.
(1) Was the prosecution justified in taking the case through it being founded on apparently credible evidence?
(2) Did anything within the investigation by the gardaí give rise, of itself, to the existence of a serious inherent doubt as to the guilt of the accused? I use this test, in distinction to a matter that might raise a reasonable doubt because, firstly, the trial judge must distance himself or herself from the evidence and, secondly, it is for the jury to judge whether there is any reasonable doubt about the guilt of the accused;
(3) Was there any indication that the case had been taken against the accused through being based on an abuse of his rights through oppressive questioning, which contributed to a confession that was unreliable in law?
(4) Whether the accused was acquitted by direction of the trial judge or acquitted upon consideration by the jury? Then one might go on to consider the reason for such acquittal by the trial judge, whether as to a failure in technical proofs or if it was one of the rare cases of inherent weakness in evidence that had actually been offered;
(5) If there had been an acquittal by direction of the trial...
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