DPP v Walsh

JudgeMacken J
Judgment Date20 December 2011
Neutral Citation[2011] IECCA 101
CourtCourt of Criminal Appeal
Date20 December 2011

[2011] IECCA 101


Macken, J.

Moriarty, J.

Ryan, J.

[CCA No. 320/10]
DPP v Walsh



R v GALBRAITH 1981 1 WLR 1039

R v SHIPPEY 1988 CLR 767

DPP v BARNWELL UNREP FLOOD 24.1.1997 1998/15/5319

DPP v MORRISSEY UNREP BARRON 10.7.1998 1998/16/5863

DPP v M UNREP DENHAM 15.2.2001 2001/8/1990


DPP v B ( R) UNREP CCA 12.2.2003 2003/13/2871

DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006 13 2579 2006 IESC 9



Judge's charge - Evidence - Inconsistencies - Whether inconsistencies between statement of evidence and evidence given sufficient to merit direction to acquit - Whether combination of inconsistencies and significant delay in prosecuting sufficient to merit direction - Duty of trial Judge to consider general delay - Whether lack of specific prejudice factor to be considered - Whether error in principle to refuse to amend counts - Nature of appropriate warning to jury to be given in delay cases - R v Galbraith [1981] 1 WLR 1039; R v Shippey [1988] CLR 767; DPP v Barnwell (Unrep, Flood J, 24/1/1997); DPP v Morrissey (Unrep, Barron J, 10/7/1998); DPP v M (Unrep, CCA, 15/2/2001); DPP v Dunbar [2011] IECCA 32, (Unrep, CCA, 12/4/2011) ; DPP v RB (Unrep, CCA, 12/2/2003) - Leave to appeal refused (320/2010 - CCA - 20/12/2011) [2011] IECCA 101

People (DPP) v Walsh


Judgment of the Court (ex tempore) delivered on the 20th day of December, 2011 by Macken J.


The Court is in a position to give judgment in relation to this matter at this time. The case concerns the conviction of the applicant, Mr. Walsh, in respect of several counts on an indictment, which involved buggery charges and sexual assault charges.


We have received submissions on the part of the applicant, and also submissions on behalf of the DPP, and the submissions have been very ably supplemented by oral evidence of Mr. McDermott, senior counsel on behalf of the applicant, and by Miss Gearty, senior counsel on behalf of the DPP.


At the commencement of the application, Mr. McDermott pointed out that he was not proceeding in respect of two of the grounds, but that he would be proceeding in relation to the others. These fall substantially into three areas, starting with the last of them, which concerns the terms of the charge to the jury, and prior to that, the error on the part of the learned High Court judge in permitting amendments to counts 5 and 6, and then a general objection and allegation of error on the part of the trial judge, which arises from the several grounds ahead of those just mentioned, which concern a combination of grounds based on delay, combined with inconsistencies in the evidence of the complainant.


If one can start at the last mentioned matter, that is, the most telling and important of the matters raised on behalf of the applicant, and while they fall into two categories, they are then combined in one overall category of error and prejudice alleged to have been sustained on the part of the applicant. In the first place, Mr. McDermott points out inconsistencies between the statements made by the complainant and the subsequent evidence given by the complainant, and while il is not necessary to go into these inconsistencies in the judgment, it would be fair to say that some of these inconsistencies are fairly significant, or serious, or could be so classified without too much contradiction. They relate, in particular, to examples of where precisely some of the offences occurred, and to precise dates in relation to particular historical events, such as a birthday or a sports day during which they occurred, according to the original statements, and then were changed in the course of evidence subsequently, either to different dates or different locations. Combined with that, Mr. McDermott says there has, of course, been significant delay in relation to this case.


It is essential to point out that the application which was made for the direction in relation to these matters was made against a series of cases under which it is now well established in law that it is not appropriate to grant a direction in cases such as this, except in what might be called very serious circumstances of prejudice. So the question which really arises in relation to this matter is whether or not the circumstances identified are such as to give rise to a finding that the learned trial judge erred in law in failing to grant the appropriate direction. The starting point must be the acknowledgement that there were very serious or significant inconsistencies and discrepancies between the evidence already given, or between evidence which might have been given, in relation to dates, alibis and such like. That issue of inconsistencies has been determined for some considerable period of time in terms of applicable principles as outlined in the written submissions filed on behalf of the applicant. The applicant cites the standard extract from R v. Galbraith, a United Kingdom decision, and indeed that is followed by R v. Shippey [1988] CLR.767. The principles in both of those cases have been adopted with approval in this jurisdiction in several cases, including the DPP v. Barnwell, an unreported decision of this Court of the 24 th January, 1997, the DPP v. Morrissey, again an unreported decision of this Court of 10 th July, 1998. The principles are best represented by a brief extract which is...

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