DPP v Walsh
| Jurisdiction | Ireland |
| Judge | Mr Justice Fennelly |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] IECCA 80 |
| Court | Court of Criminal Appeal |
| Date | 21 July 2010 |
[2010] IECCA 80
Fennelly J.
Dunne J.
Bermingham J.
COURT OF CRIMINAL APPEAL
CRIMINAL LAW
Trial
Procedure - Amendment of indictment - Timing of amendment of indictment - Extent of amendment of indictment - Prejudice to accused - Discretion of trial judge - Marrying of counts with evidence - Whether any time limit to amendment of indictment - Whether any limit to extent of amendment of indictment - R v Smith [1951] 1 KB 53, R v McVitie [1960] 2 QB 483, R v Johal and Ram [1973] QB 475, R v Chuah [1991] Crim LR 463, R v Dossi (1918) 13 Cr App R 158, R v Dossi (1918) 13 Cr App R 158, People (DPP) v EF (Unrep, SC, 24/2/1994) and DO'R v DPP (Unrep, Kelly J, 27/2/1997) considered - Criminal Justice (Administration) Act 1924 (No 44), s 6 (1) - Leave to appeal refused (200/2009 - CCA - 21/7/2010) [2010] IECCA 80
People (DPP) v Walsh
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(1)
R v POPLE & ORS 1951 1 KB 53 1950 2 AER 679 1950 34 CR APP R 168
R v JOHAL & RAM 1973 QB 475 1972 3 WLR 210 1972 2 AER 449
R v CHUAH 1991 CRIM LR 463
R v MCVITIE 1960 2 QB 483 1960 3 WLR 99 1960 2 AER 498
INDICTMENTS ACT 1915 S5
WALSH & MACENTEE CRIMINAL PROCEDURE 2002 PARA 15.54
R v DOSSI 1919 13 CR APP R 158
DPP v F (E) UNREP 24.2.1994 1994/2/557
O'R (D) v DPP 1997 2 IR 273 1998/29/11641
DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006 13 2579 2006 IESC 9
DPP v MASSOUD UNREP CCA 24.7.2009 2009 IECCA 94
DPP v G (L) 2003 2 IR 517 2003/16/3458
DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69
DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871
1. The applicant was convicted on four counts of indecent assault by a jury presided over by His Honour Judge White at Dundalk Circuit Court on 24 th July 2009.
2. The four offences were alleged to have been committed between 25 th December 1980 and 20 th June 1982. Before amendment the indictment covered a period up to 31 st December 1982. The trial took place over three days in April 2009 which was some twenty seven to twenty nine years after the dates of the alleged offending. The complainant had first made complaint to the gardaí in about 1999.
3. The complainant was born on 20 th June 1969. He was thus aged between 11 and 13 during the period of the alleged offences. In evidence he fixed the dates of the alleged offences by reference to intervals between his birthdays. The applicant lived near the home of the complainant in Glenamaddy, County Galway. He was a schoolteacher, though not at the complainant's school.
4. The gist of the alleged offending was that the applicant befriended the complainant. He took him out for drives in his car. The complainant gave evidence that he would stop the car in various roadside places and interfere with him sexually. One offence was alleged to have been committed when the complainant stayed overnight with the applicant at a house in Castlebar. The complainant described some specific locations. More generally, he fixed times by reference to his birthdays, i.e., 20 th June in the years when he reached the age of 11, 12 or 13. In one case, he specified a precise date. The evidence of the complainant was uncorroborated. The applicant denied the offences, though he exercised his right not to give evidence.
5. The indictment, at the commencement of the trial, contained fourteen counts. The dates of the alleged offences varied between 25 th December 1980 and 31 st December 1982. The complainant gave evidence and was cross-examined.
6. At the conclusion of the prosecution case, the learned trial judge intervened to suggest that it was his responsibility to marry the counts on the indictment with the evidence and that it would be necessary to amend the indictment. The judge said that he had noted a total of nine allegations from the complainant's evidence. There followed a detailed discussion with counsel for the prosecution and the defence referring to the evidence that had been given and the terms of the counts on the indictment as they stood. Since the complainant had given evidence of only nine offences, clearly it was not possible to leave all fourteen counts to the jury.
7. Counsel for the applicant opposed any amendment of the indictment, saying that the defence had approached the case on the basis of the indictment as it stood, adding that, in some instances, the prosecution was seeking to amend, based on evidence elicited in cross-examination.
8.The learned trial judge ordered that the indictment be amended with the effect that four counts only were left to the jury. Each of these corresponded to a count in the pre-existing indictment but with some altered times and amended descriptions of locations. The learned judge referred to section 6(1) of the Criminal Justice (Administration) Act, 1924 as setting the parameters of his jurisdiction. He also cited a number of judicial authorities and textbook references.
9.The learned trial judge duly charged the jury generally and in particular on the implications of the delay between the dates of the alleged offences and the trial. There were no requisitions, though a particular complaint has been raised in the form of an application for amendment of the grounds of appeal. It relates to the adequacy of the direction on the question of delay.
10.The application for leave to appeal raises two points, namely:
Whether the decision of the learned trial judge to amend the indictment was correct and fair, particularly the timing of that decision (at the conclusion of the prosecution case) and whether the decision was just to the accused;
Whether the direction to the jury on the issue of delay was adequate and appropriate.
The first ground is a restatement of grounds already contained in the original notice of appeal. The second is raised only by way of an application for leave to amend the grounds of appeal as originally filed.
11. The jurisdiction to amend an indictment is provided by section 6(1) of the Criminal Justice (Administration) Act, 1924, which reads as follows:
"Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the court be made without injustice, and may make such order as to the payment of any costs incurred owing to the necessity for amendment as the court thinks fit."
12. The written submissions of the applicant refer to a number of English authorities on the meaning of the term "defective" in relation to an indictment: R. v Smith (1950) 34 Cr. Appellants. R 168; R. v Johal and Ram [1973] Q.B. 475; R. v Chuah [1991] Crim L.R.463; R v McVitie [1960] 2 Q.B. 483. At the hearing, it was submitted that the amendments should not have been made, as they were, at the close of the case for the prosecution, but at the end of the direct evidence of the complainant. That was the appropriate time, as it would afford the defence an opportunity to cross-examine on the basis of the final amended version of the indictment.
13. The last of the cited cases, McVitie is not an authority on amendment of an indictment. It is, nonetheless, instructive. The indictment was admittedly defective in that it omitted the essential word "knowingly" in a count alleging possession of explosive substances. But the appellant admitted that, in fact, he had the requisite knowledge. There was no amendment. It was held on appeal that "no embarrassment or prejudice was caused to the appellant by the omission of the word "knowingly" from the particulars…" There was no miscarriage of justice and the court applied the proviso.
14. In R. v Smith, Humphreys J, speaking for the appeal court, discussed the history and purpose of the equivalent English section (section 5 of the Indictments Act, 1915) and said:
"The argument of the appellant appeared to involve the proposition that an indictment, in order to be defective, must be one which in law did not charge any offence at all and, therefore, is bad on the face of it. We do not take that view. In our opinion any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person. There is the most ample power in such a case or in any case where the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by any such amendment to direct that one person should be tried separately from others, or the trial may be postponed."
15. In Johal and Ram, the original counts in the indictment were for joint charges of wounding with intent and unlawful wounding. After arraignment and before a jury was empanelled, leave was given to amend the indictment by the addition of four counts charging each defendant individually with each offence. On appeal, it was held that no rule of law precluded this course and that no injustice had been caused.
16. In R. v Chuah, there was a count of obtaining services (a mortgage advance) by deception. Following a successful submission that a mortgage advance did not amount in law to the obtaining of services, the indictment was amended to charge obtaining property by deception, on which the defendant was convicted. On appeal, it was held that the amendment, though made at a late stage, caused no injustice as it deprived the defence only of a technical and unmeritorious argument.
17. Professor Dermot Walsh in his authoritative work, Criminal Procedure...
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