Enda Lynch v Judge Carroll Moran and DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 23 May 2006
• Neutral Citation: [2006] IESC 31
• Court: Supreme Court
• Docket Number: [S.C. No. 417 of 2005]
• Date: 23 May 2006

[2006] IESC 31

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

McCracken J.

Kearns J.

[S.C. No. 417 of 2005]

LYNCH v JUDGE MORAN & DPP

BETWEEN

ENDA LYNCH

APPELLANT

AND

HIS HONOUR JUDGE CARROLL MORAN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

RSC O.84 r20(7)

DPP v O'CALLAGHAN 2001 1 IR 584 2001 2 ILRM 184

KELLY v IRELAND 1986 ILRM 318

BREATHNACH v IRELAND 1989 IR 489

DPP v QUILLIGAN (NO 3) 1993 2 IR 305

DUBLIN CORPORATION v FLYNN 1980 IR 357

R v HUMPHRYS 1977 AC 1

CONNELLY v DPP 1964 AC 1254

R v MASKELL 1970 54 CAR 429

MILLS v COOPER 1967 2 QB 459

R v HOGAN 1974 QB 398

R v BLAIR 1985 1 NSWLR 584

ROGERS v THE QUEEN 1994 181 CLR 251

DUHAMEL v THE QUEEN 1985 4 DLR (4TH) 92

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12

CRIMINAL PROCEDURE ACT 1993 S3(1)

CONSTITUTION ART 34

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2(1)EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 38

CRIMINAL LAW:

Evidence

Issue estoppel - Res judicata - Criminal proceedings - Whether finding of criminal court capable of giving rise to estoppel in subsequent criminal proceedings action -Whether discrete issue may be regarded as finally and validly determined by court, even though verdict on general issue set aside -Corporation of Dublin v Flynn [1980] IR 357; R v Humphrys [1977] AC 1; Rogers v The Queen [1994] 181 CLR 251 followed - The People (DPP) v O'Callaghan [2001] 1 IR 584 overruled - Kelly v Ireland [1986]ILRM 318; Breathnach v Ireland [1989] IR 489 distinguished - R v Hogan [1974] QB 398 not followed - People (DPP) v Quilligan (No 3) [1993] 2 IR 305; Connelly v Director of Public Prosecutions [1964] AC 1254; Duhamel v The Queen [1984] 2 SCR 555; Mills v Cooper [1967] 2 QB 459; R v Blair [1985] 1 NSWLR 584; R v Maskell [1970] 54 Cr App R 429 considered - Certiorari granted; no issue estoppel arising (417/2005 -SC - 23/5/2006) [2006] IESC 31, [2006] 3 IR 389; [2006] 2 ILRM 447 Lynch v Judge Moran

Facts: This case concerned the role of issue estoppel in criminal proceedings. The applicant appealed the order of the High Court whereby the High Court refused an order of certiorari to quash a ruling made by the Circuit Court judge that certain issues in a forthcoming retrial had already been decided by him in a prior trial of the same accused with regard to the same offence and would not require to be relitigated by reason of issue estoppel.

Held by the Supreme Court (Denham, Geoghegan, Fennelly, McCracken and Kearns JJ) in allowing the appeal and quashing the order of the Circuit Court judge that issue estoppel had no role in Irish criminal proceedings.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Kearnsdelivered the 23rd day of May, 2006

2 This case concerns the role, if any, of issue estoppel in criminal proceedings in this jurisdiction. It comes before this Court in judicial review proceedings by way of an appeal from an order of the High Court (Murphy J.) dated the 7th July, 2005. By that order the applicant was refused an order of certiorari to quash a ruling made by the first named respondent on the 14th December, 2004, when he held that certain issues in a forthcoming retrial had already been decided by him in a prior trial of the same accused with regard to the same offence and would not require to be relitigated by reason of issue estoppel.

3 The issue arose in the following circumstances. In or about the month of February, 2004, the applicant was tried for manslaughter before the Circuit Criminal Court sitting in Limerick. During the course of the trial, the defence sought rulings in voir dire hearings in respect of the admissibility of evidence of an identification parade and in respect of identification evidence to be given by a particular witness. The learned trial judge, the first named respondent, ruled against the applicant on these issues and held that the evidence was admissible. After several days of trial, however, the jury failed to reach a verdict and was discharged.

4 The case was listed for re-hearing in December, 2004. Prior thereto, at a call-over hearing which was held to schedule criminal trials before the particular judge, counsel on behalf of the second named respondent informed the Court that the retrial would be shorter because certain issues had already been determined and were now res judicata against the applicant. Counsel on behalf of the applicant vigorously contested this proposition. The first named respondent heard lengthy submissions from both sides in regard to the issue on the 14th December, 2004. The first named respondent then ruled in favour of the contentions advanced on behalf of the second named respondent and held that issue estoppel in favour of the prosecution should apply. In the aftermath of that ruling an application seeking leave to apply for relief by way of an application for judicial review was brought before the High Court (Macken J.) on the 24th January, 2005. The reliefs sought included an order of certiorari quashing the ruling made by the first named respondent on the 14th December, 2004, an order of mandamus directing the first named respondent to state a case to the Supreme Court to answer the question whether issue estoppel exists in criminal law in this jurisdiction, a stay of the prosecution under Order 84, rule 20(7) of Rules of the Superior Courts, 1986, and an order directing that any retrial be heard before a judge other than the first named respondent.

5 The grounds upon which leave was granted to bring judicial review proceedings on the 24th January, 2005, were as follows:-

6 2 "1. That in the light of a ruling made on the 14th December, 2004, by the first named respondent, (on a preliminary issue to a retrial of the applicant on a charge of manslaughter heard by the first named respondent sitting with a jury in Limerick Circuit Criminal Court between 2nd and 9th February, 2004, in favour of the second named respondent is now res judicata/issue estoppel against the applicant), the applicant cannot receive a fair trial contrary to Article 38.1 of Bunreacht na hÉireann and Article 6(1)(2) and 6(3)(d) of the European Convention For The Protection of Human Rights, 1950.

7 2. That the said ruling was not made in accordance with law nor is it one known to the law.

8 3. That the said ruling was made ultra vires the powers of the first named respondent and was in breach of the applicant's rights pursuant to Articles 34.1, 38.1, 40.3, 1 and 2 of Bunreacht na hÉireann and of Article 6(1) and (2) and 6(3)(d) and Article13 of the European Convention For The Protection of Human Rights, 1950.

9 4. Further in directing that the applicant was to proceed with the trial and in the event of a conviction to pursue an appeal deprives the applicant of an effective remedy contrary to Article 13 of the European Convention For The Protection of Human Rights, 1950.

10 5. That a retrial in which the applicant is prevented from raising all defences (and challenges) open to him constitutes a trial in which the parties are not met on the basis of "equality of arms" contrary to Article 6(1) and (2) and (3)(d) of the European Convention For The Protection of Human Rights, 1950.

11 6. That to subject the applicant to a retrial in such circumstances would be oppressive, unjust, an abuse of process, and place the applicant in a position of great prejudice and would deprive him of his right to defend himself fully and properly in accordance with Bunreacht na hÉireann and the European Convention For The Protection of Human Rights, 1950."

12 In his grounding affidavit in support of the application, the applicant states (at par.8):-

"I say that the first question raised by counsel on my behalf (i.e. at the hearing before the first named respondent on the 14th December, 2004) was whether the rulings in the first trial were res judicata or gave rise to issue estoppel. I say that it was submitted that they do not; that to become res judicata/issue estoppel there must be a final judgment. There was no final judgment. There was only a mistrial. It was submitted that because the whole trial process had collapsed then all the rulings made within it had also collapsed. It was therefore submitted that it would be illogical and wrong to preserve rulings whilst acknowledging that there was no verdict. It was submitted that as a consequence of this an accused person, such as your deponent, should not as a matter of justice be asked to commence a retrial from a disadvantage or with his hands tied behind his back since an accused person enjoys the presumption of innocence and the right to defend himself with all available means."

13 The deponent points out that it was argued on his behalf that he had no right of appeal against rulings made in the course of a trial when there was no verdict. Nor did he have any right of appeal from any ruling on any preliminary issue until there was a verdict. It was submitted that there could be no finality or appeal from any part of the trial until there was a verdict and it therefore followed that if there was to be a retrial it could only be on the basis that the accused would entitled to raise all issues in his defence.

14 Following the granting of leave, the trial of the applicant, which was listed for hearing on the 26th January, 2005, was stayed.

15 The full hearing of the judicial review proceedings concluded on the 7th July, 2005, when Murphy J. delivered judgment. I do not propose to quote from this judgment, which was delivered in ex tempore form, beyond noting that Murphy J. held that the first named respondent had acted "within jurisdiction" in making the ruling which he did on the 14th December,...