Eccles v DPP

CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date05 May 2017
Neutral Citation[2017] IEHC 379
Docket Number[2016 No. 409 J.R.]
Date05 May 2017

[2017] IEHC 379

[2016 No. 409 J.R.]


Crime & Sentencing – Indictment – Jury trial – Collusion between complainant and witness – Breach of fair procedures – Re-trial – Directed verdict

Facts: The applicant sought an order of prohibition of his retrial on the ground that it would be breach of fair procedures. The applicant contended that despite the clear direction from the trial judge, the complainant had discussions with his partner about the details of the complainant's examination-in-chief, which led to the discharge of jury by the trial judge. The applicant argued that he was deprived of benefit that he could have derived from the jury's deliberations, having heard the discredited evidence of the complainant. The applicant contended that the refusal of the trial judge to grant a directed verdict and proceed with the retrial had jeopardised the principles of just and fair procedures.

Ms. Justice Faherty refused to grant an order of prohibition to the applicant. The Court held that the trial judge had acted in the best interests of the applicant to ensure fairness to the applicant. The Court observed that the applicant had the benefit of getting the transcript of the previous proceedings and cross-examination of the complainant in case of conflicting testimonies of the complainant and his partner. The Court stated that the applicant was constitutionally entitled to a fair and just trial and the trial judge would deal with any discrepancy to ensure fairness in the retrial. The Court opined that the applicant had not discharged the burden of proof that his retrial would cause real and substantial risk of an unfair trial.

JUDGMENT of Ms. Justice Faherty delivered on the 5th day of May, 2017

The issue to be determined in the within application is whether prohibition by the Court of the applicant's retrial is appropriate given the circumstances of the case.


The background to the within application is as follows: the applicant was returned for trial to the Circuit Court sitting at Naas Courthouse on 18th November, 2014. He is charged with assault causing harm, criminal damage and possession of an article, which offences are alleged to have occurred in circumstances where following a confrontation at his home the applicant attended at the complainant's home and damaged his motor car and struck him with a baseball bat. The applicant accepts that he damaged the complainant's vehicle but denies striking the complainant with a baseball bat. The applicant's instructions are that the complainant attacked him with a knife, in response to which the applicant struck him with his elbow, knocking him backwards and the complainant sustained his injuries in the fall. The applicant made a statement to the gardaí broadly in those terms. On 27th January, 2015, the applicant entered a plea to count 2 on the indictment, criminal damage, consistent with his statement and he pleaded not guilty to counts 1 and 3, assault causing harm and possession of an article.


On 5th April, 2016, a jury was empanelled and the trial proceeded before the Circuit Court. The only two prosecuting witnesses as to fact were the complainant and his partner. At the commencement of the trial an order was made excluding the complainant's partner from the courtroom while the complainant was giving evidence.


Following the evidence-in-chief of the complainant's partner, the trial was interrupted by the trial judge who indicated, in the absence of the jury, that he felt that the complainant's partner was looking to the complainant for inspiration, but was not receiving any inspiration. The trial judge then directed that the complainant's partner should have no contact with the complainant over the lunch period and stated that if contact took place, the trial would be stopped. Moreover, he directed that the complainant stay out of the courtroom for the duration of his partner's cross-examination.


In breach of the aforesaid direction of the trial judge, the applicant's solicitor observed the complainant's partner in conversation with the complainant immediately after the court rose for lunch, having been alerted to that fact by the applicant. This was brought to the attention of the trial judge after lunch. After hearing evidence from the applicant's solicitor and submissions from counsel for the applicant and counsel for the prosecution, and being of the view that there was no point hearing evidence from the complainant's partner on the issue as she was likely to deny any wrongdoing, the trial judge discharged the jury to ensure the fairness of the trial.


It is common case that following the trial judge's initial indication that he had no alternative but to stop the trial, counsel for the applicant applied to the trial judge for time to consider his position and simultaneously applied for a directed verdict of not guilty. This was, counsel contended, in circumstances where the trial judge had found that due to the contact as between the complainant and his partner, a fair trial could not be ensured for the applicant and in view of the fact that the unfairness for the applicant would be compounded with the passage of time because the offending parties resided together. The trial judge afforded time but at the same time indicated, following submissions from counsel for the prosecution, that he did not think that a directed verdict would be appropriate.


Following an adjournment in the proceedings, counsel for the applicant renewed his application for a directed verdict. Citing Director of Public Prosecutions v. P. O'C [2006] 3 I.R. 238, as authority for the inherent jurisdiction of a trial judge to direct a verdict at a point in the trial, counsel sought the direction on the basis that a point had been reached in the proceedings where a clear direction of the trial judge had been breached, and because contact had occurred between the complainant and his partner (and would inevitably take place in the future), the unfairness to the applicant could not be remedied. It was stated that was also the case in circumstances where the entirety of the applicant's proposed cross-examination of the complainant's partner had been already rehearsed with the complainant in the course of the trial and where the complainant himself now knew the questions which were going to be asked of him at any future trial. Counsel also referred to the unreality of the trial judge giving a warning to the complainant and his partner to cover the period from the termination of the trial to a reconvened trial. It was submitted that the question arose ‘whether or not one might consider ignoring the offer of a discharge verdict, and proceeding in front of [the] jury’. The trial judge's immediate response to the latter submission was that proceeding with the trial was not on offer as, in his view, ‘if there was to be a conviction and a subsequent appeal following upon what has gone on’, the appeal would be ‘for the asking’.


The response of counsel for the prosecution to the application for a directed verdict was that the right to a fair trial inures both to the accused and the prosecution and that the prosecution had a stateable case to put before the jury and that while the trial had ‘fallen asunder’ because of the breach of the trial judge's warning, the matters could be fully explored in another trial. It was also submitted that the cross-examination of complainant's partner had not been embarked upon and that as such she would not be returning to court prepared. Counsel also relied on the fact that there would be a transcript of the proceedings available on the next occasion so that if there was to be at any retrial ‘in fact a third or fourth account of what transpired’, the transcript of the earlier trial would be available to the defence.


The trial judge's ruling on the application for a directed verdict was in the following terms:

‘I am not disposed under the circumstances to direct a verdict in this instance. I don't believe what occurred today is fatal in any way to the defence. I have to be conscious of the fact that Mr. Hanohoe himself, and properly so in my view, has introduced the memo of interview of the accused man, and what is contained in that. He will have the benefit of a transcript on the next occasion and, on the basis of the manner in which he cross-examined [the complainant] this morning in the context of replies that he had given to the gardai when completing out his statement of complaint, and indeed in the manner in which he commented and agreed with Mr. Hanahoe's suggestion that [his partner] could not have seen certain things, I don't think a retrial would be fatal to the defence. I will direct a transcript and I will discharge the jury under the circumstances of this case.’


The discharge ruling given by the trial judge was as follows:

‘You may have gathered from the opening of this morning, part of my function as a trial judge is to ensure a fair trial. And I have come to the conclusion that this trial cannot continue, as the accused man cannot get a fair trial, as a result of matters which arose over lunchtime. So as to not to leave you entirely in the dark, you may recall that [the complainant's partner] was in the witness box coming up to lunchtime and the matter was put back till 2 o'clock for her cross-examination. In your absence, I directed that she have no contact or discussion with [the complainant] and I indicated that if there was discussion, the trial would be stopped, and [the witness] indicated that she understood that. You will appreciate in the context of the cross-examination of [the complainant] by Mr. Hanohoe, that the sanctity of the evidence was paramount, in the sense that there should be no discussion, no comparing of notes, no...

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