Director of Public Prosecutions -v- Hayes and O'Leary, [2014] IECCA 5 (2014)

Docket Number:50 & 65/13
Party Name:Director of Public Prosecutions, Hayes and O'Leary
Judge:Clarke J.

THE COURT OF CRIMINAL APPEAL [Record Nos: 50 & 65/2013]

Clarke J.

Moriarty J.

Cross J.


The Director of Public Prosecutions Prosecutor/Respondentand

Noel Hayes and William O’LearyAccused/Appellants

Judgment of the Court delivered by Mr. Justice Clarke on the 31st January, 2014.

1. Introduction

1.1 The question which the Court is now required to answer is whether it should direct a retrial of the case against both of the accused/appellants (respectively “Mr. Hayes” and “Mr. O’Leary”) on charges relating to the alleged forging of a will. Both Mr. Hayes and Mr. O’Leary were convicted at Wexford Circuit Court on the 29th January, 2013, of forgery contrary to s. 2 of the Forgery Act 1913 arising out of an allegation that they had forged a document purporting to be a will in the name of Matthew Hayes (a brother of Noel Hayes) between the 25th December, 1998, and the 5th January, 1999.

1.2. It transpired at a very early stage that a document had been included in the papers which were allowed go into the jury room but which did not form part of the evidence in the case. In addition, there was evidence to suggest that the jury had had regard to that document. In those circumstances, as early as the sentencing hearing which occurred subsequent to the conviction of Mr. Hayes and Mr. O’Leary, counsel for the prosecutor/respondent (“the DPP”) indicated that the DPP accepted that the respective convictions would ultimately require to be set aside.

1.3. Mr. Hayes and Mr. O’Leary then appealed against their respective convictions. At the instigation of the DPP, the appeals were listed for hearing before this Court on Monday, 16th December, 2013, at which hearing it was indicated on behalf of the DPP that there would be no opposition to the appeal succeeding. However, it was proposed on behalf of the DPP that it would be appropriate for the Court to exercise its power to order a retrial. It was indicated on behalf of both Mr. Hayes and Mr. O’Leary that they would oppose any such direction.

1.4. In those circumstances the Court allowed the appeal and set aside the respective convictions. As one of the parties was not, on that occasion, ready to argue the issue in respect of a retrial, the matter was put back to the 15th January, 2014, to allow a hearing on that question. This judgment is directed to the issues which arose at that hearing. The Court now turns to the arguments raised.

2. The Argument on behalf of Mr. Hayes

2.1. Counsel for Mr. Hayes placed reliance on The People (at the suit of the Attorney General) v. Griffin [1974] 1 I.R. 416 in which the Supreme Court held that there was no jurisdiction to order a retrial under the legislation then pertaining (being s. 5 of the Courts of Justice Act 1928 (“the 1928 Act”)) in circumstances where an appeal had been allowed by virtue of the failure of the prosecution to lead an essential piece of evidence. In substance, the problem was that the prosecution had failed to place before the court evidence of a regulation made under s. 14 of the Dangerous Drugs Act 1934 which was an essential proof in that case. It obviously would have been possible, at any retrial, for the prosecution to, as it were, mend its hand and prove the relevant regulations. However, Henchy J., speaking for the Supreme Court, took the view that no retrial should be ordered.

2.2. In so doing Henchy J., at pp. 419 and 420, said the following:

“While there are many examples of the unqualified quashing of convictions where evidential proofs were wanting because of the prosecution's default, there seems to be no recorded case where a retrial was ordered in such circumstances. The reason would appear to be that s. 5, sub-s. 1(b ), of the Act of 1928 was passed to enable the Court of Criminal Appeal to order a retrial when the quashed conviction resulted not from the inadequacy of the prosecution case but from a faulty trial (e.g. ,misdirection, inadmissible evidence, procedural irregularity) which, but for such fault, might have led to a supportable conviction. So far as I know, the section has never hitherto been judicially treated as authorising a retrial for the purpose of enabling the prosecution to mend its hand by presenting evidence at the retrial which ought reasonably to have been given at the first trial — I use the word "reasonably" because of the decision in The Attorney General v. Cleary.”

2.3. In conclusion Henchy J. said the following at p. 420:

“In my opinion, when a conviction in quashed because the prosecution failed to tender the evidence necessary to sustain a conviction, the accused should not be subjected to the worry of a retrial in which the prosecution could mend its hand, unless there is clear statutory authority for such a course. Section 5 of the Act of 1928 provides no such authority.”

2.4. Counsel for Mr. Hayes argued that this case, although accepting that it was not identical, was nonetheless analogous to Griffin. It was said that what led to the necessity to allow the appeal in this case was an error on the part of the prosecution in allowing a document which was not properly before the court to be given to the jury. On that basis it was argued that a retrial would not be appropriate.

2.5. It is, of course, the case that the situation is now governed by more modern legislation in the form of s. 3 of the Criminal Procedure Act 1993, as opposed to the 1928 Act which applied when Griffin was decided. However, counsel argued that there was no material difference in the respective legislative provisions.

2.6. In addition, counsel indicated that he would place reliance on an argument concerning lapse of time which was put forward by counsel for Mr. O’Leary.


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