The People (at the suit of the DPP) v Brian Shaughnessey

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 23 March 2021
• Neutral Citation: [2021] IESC 18
• Date: 23 March 2021
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2020:000107 Central Criminal Court Bill No: CCDP00902011

Between

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

Prosecutor/Respondent

and

Brian Shaughnessey

Accused/Appellant

[2021] IESC 18

[2020] IESC 000

[2020] IECA 95

O'Donnell J

McKechnie J

MacMenamin J

Charleton J

O'Malley J

Supreme Court appeal number: S:AP:IE:2020:000107

Court of Appeal Record Number: 2013/151

Central Criminal Court Bill No: CCDP00902011

An Chúirt Uachtarach

The Supreme Court

Conviction – Rape – Incompetent representation – Appellant appealing against conviction – Whether the standard set for allowing an appeal on the basis of incompetent representation had been met

Facts: The accused/appellant, Mr Shaughnessey, in March 2013, was convicted by a jury of raping, following a staff party on 25/26 July 2010, a 17-year-old part-time employee in a suite in the hotel which he owned. Sheehan J sentenced him to six years imprisonment, with twelve months suspended on condition of following a rehabilitation program. The accused claimed that the incompetence of his defence mounted at trial led to his being convicted when otherwise he would not have been. On 9 April 2020, the Court of Appeal upheld the conviction, ruling that claims of incompetent representation were to be analysed as if the application about representation was one to admit newly discovered evidence after a trial. The Supreme Court determined on 20 November 2020 that the accused be granted leave to appeal on three issues: (1) whether, in an appeal stated to be grounded on the evidence of the appellant that defence counsel did not properly appreciate the relevant materials provided, or follow his client’s instructions in the trial, the four-part test arising from The People (DPP) v O’Regan [2007] 3 IR 805 relating to the introduction of new evidence on appeal is applicable; (2) whether, assuming the first issue is resolved in favour of the applicant, the standard set for allowing an appeal on the basis of incompetent representation has been met; and (3) whether the trial judge was correct in his ruling in relation to corroboration.

Held by the Court that a potential issue had emerged, as to which the Court was not in a position to judge and could make no comment, hinging on the credibility of any evidence of the accused and the resolution of any factual matter in reply on oral evidence by both sides. The Court found that, depending on the resolution of that factual contest, it may be necessary for the Court of Appeal to consider whether there was such a failure of competence in representation as to deny the accused a trial in due course of law.

The Court held that the matter should be returned to the Court of Appeal, the applicable test having been set out.

Matter returned to the Court of Appeal.

Judgment of Mr Justice Peter Charleton of Tuesday 23 March 2021

1 This judgment concerns the proper approach to an appeal where an accused posits that due to poor representation at trial a conviction is unsafe. In March 2013, a jury convicted the accused Brian Shaughnessey of raping, following a staff party on 25/6 July 2010, a 17-year-old part-time employee in a suite in the hotel which he owned. Alongside working in his hotel, she was an occasional babysitter to his children. Sheehan J sentenced him to six years imprisonment, with twelve months suspended on condition of following a rehabilitation program. The accused claims that the incompetence of his defence mounted at trial led to his being convicted when otherwise he would not have been. He asserts that timings highlighting a possibly missing hour or so, which might have cast doubt on the young woman's account of sexual violence, were inadequately put to her during cross-examination, mentioned only as an afterthought in a defence speech to the jury, and generally glossed over. On 9 April 2020, the Court of Appeal upheld the conviction, ruling that claims of incompetent representation were to be analysed as if the application about representation was one to admit newly discovered evidence after a trial. The accused's former lawyers swore affidavit evidence contradictory to the accused's averment of incompetence and were allowed to address the court, in addition to the prosecution and the defence. No cross-examination, however, of witnesses as to these contrary assertions was permitted.

2 This Court determined on 20 November 2020 that the accused be granted leave to appeal on three issues:

• (1) Whether, in an appeal stated to be grounded on the evidence of the appellant that defence counsel did not properly appreciate the relevant materials provided, or follow his client's instructions in the trial, the four-part test arising from The People (DPP) v O'Regan [2007] 3 IR 805 relating to the introduction of new evidence on appeal is applicable;

• (2) Whether, assuming the first issue is resolved in favour of the Applicant, the standard set for allowing an appeal on the basis of incompetent representation has been met;

• (3) Whether the trial judge was correct in his ruling in relation to corroboration.

3 To properly analyse the various contradictory accounts of the trial, which have rendered the precise facts uncertain, it is necessary to consider the trial transcript in detail before, firstly, ruling on the corroboration issue and, then, proceeding to consider the incompetent representation point through setting out the appropriate test for an appellate court.

The defence and prosecution accounts

4 Some period of time after about 03.30 hours on the morning of 26 July 2010, Brian Shaughnessy and his employee, the complainant young woman, retired with a bottle of wine and two glasses to the presidential suite of his hotel. At some stage around 05:40 hours, the young woman left the hotel and walked home. There had been a staff party at the hotel which seems to have been winding down when Brian Shaughnessy and the young woman began talking. Prior to going up to the presidential suite, he and the young woman had been sitting in the hotel bar. At some stage between 04:00 hours and 05:00 hours, Mr Greene, a hotel employee, looked into the bar and did not see Brian Shaughnessy and the complainant there. This is not very helpful but it certainly puts them elsewhere. But when? On both of their accounts, for some substantial time, which could have been three-quarters of an hour or half an hour or thereabouts, or is perhaps uncertain, they were both in the presidential suite, where the alleged sexual violence took place. Neither claimed that they were elsewhere. The evidence from the complainant was that she had come late to the staff party and that she and a friend had been bought one or two drinks by the accused, who at this stage was coming and going, speaking to different members of staff. She had called a taxi but, on it arriving, three others had jumped in and rather than cause a fuss she returned to the bar where she was joined in what was, at first, small talk by the accused. During this, and the times are vague, she saw the hotel manager and his fiancée going by and then going up to a room. She, according to transcripts, testified thus as to the events following:

And they headed off to bed and that was fine and after that then Brian said to me, “Do you know, are you sure you want to be my friend?” I thought, do you know when you see a little child, and they're saying, “Will you be my friend”, I just felt like oh this, like, God love him, kind of, you know, it was just a stupid on my part, but it was just — you know, it was just I can't explain what it was, I just thought “of course I'm going to be your friend.” You know it was a general, genuine reaction, like. And that was fine, and, you know, I just — I don't know what — I just there was this like thing that he was going to tell me. I thought there's some problem, there's this isn't himself, you know, I'd never have had that experience with Brian before, that it was always easy go kind of chat, and there was never this kind of — whatever this was, you know. So I thought, you know there's something going on, you know, so at this point, you know, kind of Barry and the wife — and the fiancée sorry, had come in. And Willie was coming and going and I said “do you know, would you mind if we go somewhere else to talk, I'm still, you know, kind of conscious that there's people listening”, and I said “no problem.” So Willie came in, and Brian asked him for a key for a room and a bottle of wine. And I hadn't actually drank my vodka and orange, again, it was the same, just wetting my lips. And that was fine, and we went and got in the lift there behind reception. … So all that was going through my head at this point was what's he going to tell me, why me, like, and really how am I going to get out of drinking this bottle of wine, like, you know it was just purely — there was nothing else going on in there, like. So then we got up to the fourth floor, and you can see there where we would have come out of the lift. … And we turned right and came down the corridor, so we came down, and we went into the presidential suite. Now, I opened the door, Brian was holding the bottle of wine and the two glasses. … [I opened the door with the key card] … And in we went to the presidential suite. … Yes, I walked in and I went and I sat on the couch. And I took … I took off my boots, like, as — I didn't mention this, but when I was in the nightclub earlier on, I was wearing heels, and they were toe out shoes, and they cut my toes. So I was putting on my flats and when I got up to the room, my obviously I had no socks, so what happened was my the cut was hurting, so I took off the boots anyways is the main thing. … So I was sitting there any ways, took off my boots, and Brian came in and we'd the bottle of wine then on the table in front of us. … So I turned on the telly, and he was very quiet, and I just thought, whatever this is, it's big, do you know, and I kind of...