DPP v Walsh

• Jurisdiction: Ireland
• Judgment Date: 21 July 2010
• Date: 21 July 2010
• Docket Number: [C.C.A. No.
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. Walsh

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

Michael Anthony Walsh

Accused

[2010] IECCA 80,

[C.C.A. No. 200 of 2009]

Court of Criminal Appeal

Criminal law - Trial - Procedure - Amendment of indictment - Timing of amendment - 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 - Criminal Justice (Administration) Act 1924 (No. 44), s. 6(1).

Section 6(1) of the Criminal Justice (Administration) Act 1924 provides 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."

The accused was convicted by a jury on four counts of indecent assault. The indictment, at the commencement of the trial, had contained fourteen counts. At the conclusion of the prosecution case the 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, noting that the complainant had given evidence of only nine offences. Counsel for the accused opposed any amendment of the indictment, saying that the defence had approached the case on the basis of the indictment as it stood, and that, in some instances the prosecution was seeking to amend the indictment based on evidence elicited in cross-examination.

The trial judge amended the indictment, pursuant to s. 6(1) of the Criminal Justice (Administration) Act 1924, such that four counts only were left to the jury, each of which corresponded to a count in the original indictment, but with some altered times and amended descriptions of locations.

The accused applied for leave to appeal his convictions on the grounds, inter alia, that the decision of the trial judge to amend the indictment was not correct and fair, and that the timing of that decision (at the conclusion of the prosecution case) was not just to the accused.

Held by the Court of Criminal Appeal (Fennelly, Dunne and Birmingham JJ.), in refusing leave to appeal, 1, that s. 6(1) of the Act of 1924 conferred a broad discretionary power on the trial judge to amend the indictment. The purpose of any amendment must be to ensure that the jury would address the true issues when they came to deliberate on their verdict; the counts in the indictment should correspond as closely as was reasonably possible with the real case for the prosecution.

• R. v. Pople [1951] 1 K.B. 53, R. v. Johal[1973] Q.B. 475, R. v. Chuah[1991] Crim. L.R. 463, R. v. McVitie[1960] 2 Q.B. 483, andR. v. Dossi(1918) 13 Cr. App. R. 158 considered.

2. That the section set no time limit on the exercise of the power of amendment of the indictment. It might occur at any stage of a trial, but it might well be that in a particular case a late amendment could not be made without injustice.

• R. v. Johal [1973] Q.B. 475, R. v. Chuah[1991] Crim. L.R. 463, and R. v. Dossi(1918) 13 Cr. App. R. 158 considered.

3. That a court should not exercise the power to amend the indictment in circumstances involving prejudice to the defendant in the defence of the charges against him. This did not mean that an appropriate amendment should be refused merely because it would lessen the chance of an acquittal.

• R. v. Pople [1951] 1 K.B. 53, R. v. McVitie[1960] 2 Q.B. 483, R. v. Johal[1973] Q.B. 475, R. v. Chuah[1991] Crim. L.R. 463, R. v. Dossi(1918) 13 Cr. App. R. 158,The People (Director of Public Prosecutions) v. E.F.(Unreported, Supreme Court, 24th February, 1994) and D.O'R. v. Director of Public Prosecutions[1997] 2 I.R. 273considered.

Cases mentioned in this report:-

D.O'R. v. Director of Public Prosecutions[1997] 2 I.R. 273.

The People (Director of Public Prosecutions) v. Cronin (No. 2)[2006] IESC 9, [2006] 4 I.R. 329; [2006] 2 I.L.R.M. 401.

The People (Director of Public Prosecutions) v. E.C.[2006] IECCA 69, [2007] 1 I.R. 749.

The People (Director of Public Prosecutions) v. E.F.(Unreported, Supreme Court, 24th February, 1994).

The People (Director of Public Prosecutions) v. L.G.[2003] 2 I.R. 517.

The People (Director of Public Prosecutions) v. Massoud[2009] IECCA 94, (Unreported, Court of Criminal Appeal, 24th July, 2009).

The People (Director of Public Prosecutions) v. R.B.(Unreported, Court of Criminal Appeal, 12th February, 2003).

R. v. Chuah[1991] Crim. L.R. 463.

R. v. Dossi(1918) 13 Cr. App. R. 158, 34 T.L.R. 498.

R. v. Johal [1973] Q.B. 475; [1972] 3 W.L.R. 210; [1972] 2 All E.R. 449; (1972) 56 Cr. App. R. 348.

R. v. McVitie[1960] 2 Q.B. 483; [1960] 3 W.L.R. 99; [1960] 2 All E.R. 498.

R. v. Pople [1951] 1 K.B. 53; [1950] 2 All E.R. 679; (1950) 34 Cr. App. R. 168, 66 T.L.R. (Pt. 2) 319.

Application for leave to appeal

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 Fennelly J., infra.

The accused was convicted in Dundalk Circuit Criminal Court (Judge Michael White and a jury) on the 24th April, 2009, on four counts of indecent assault and was sentenced on the 13th July, 2009. A notice of appeal was lodged by the accused on the 23rd July, 2009, and a motion to vary the grounds of appeal was lodged on the 5th March, 2010.

The motion and the application for leave to appeal were heard together by the Court of Criminal Appeal (Fennelly, Dunne and Birmingham JJ.) on the 23rd June, 2010.

Cur. adv. vult.

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.

Fennelly J. 21st July, 2010

[1] The accused was convicted on four counts of indecent assault by a jury presided over by Judge Michael White at Dundalk Circuit Court on the 24th April, 2009.

[2] The four offences were alleged to have been committed between the 25th December, 1980 and the 20th June, 1982. Before amendment the indictment covered a period up to the 31st December, 1982. The trial took place over three days in April, 2009 which was some 27 to 29 years after the dates of the alleged offending. The complainant had first made complaint to the gardaí in about 1998.

[3] The complainant was born on the 20th 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 accused 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 accused 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 accused at a house in Castlebar. The complainant described some specific locations. More generally, he fixed times by reference to his birthdays, i.e. the 20th 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 accused 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 the 25th December, 1980 and the 31st December, 1982. The complainant gave evidence and was cross-examined.

[6] At the conclusion of the prosecution case, the 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 accused 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 trial judge ordered that the indictment be amended with the effect that four counts only were left to the jury. Each of these...