3.1 The purpose of this chapter is to give a brief review of the more important or interesting decisions and developments in the area of criminal law in 2007.
3.2 As in previous years, the cases are chosen to give an indication of the type oflegal issues which arise in the area of criminal law. This chapter is not intended to give a comprehensive review of all developments in criminal law during the year.
3.3 In People (Director of Public Prosections) v. Drought, unreported, Central Criminal Court, 4 May 2007, Charleton J. undertook a thorough analysis of sentencing in rape cases. The accused in the case was convicted of one count of rape. Before imposing sentence Charleton J. examined all the previous reported and unreported decisions of the Superior Courts which were relevant and conducted an analysis of the sentences imposed. Assistance was also obtained from cases reported in the media. He firstlyelucidated the general principles involved in sentencing in rape cases and then sought to ascertain the features or factors which tended to place those convicted for the offence of rape into particular ranges of sentencing from lenient to severe. The judge indicated what the courts have tended to regard as aggravating and mitigating factors.
3.4 In People (Director of Public Prosections) (respondent) v. O’Regan (appellant) [2008] ILRM 247, the Supreme Court considered the criteria for deciding whether to admit new evidence on appeal. The appellant was charged with a single offence of rape and was convicted after a second trial. The appellant appealed the conviction to the Court of Criminal Appeal. The grounds of appeal included an application to be allowed to present fresh evidence of two expert medical witnesses. This application was heard as a preliminary issue. The Court of Criminal Appeal refused the application and further refused to certify a question to the Supreme Court pursuant to section 29 of the Courts of Justice Act 1924.
3.5 At the request of the applicant the Attorney General certified the following question to the Supreme Court: whether in all the circumstances the Court of Criminal Appeal was correct in refusing to admit expert evidence to the effect that as a matter of certainty the rape did not occur as alleged by the complainant; and that as a matter of probability, no rape occurred; and in particular: (a) Whether the criteria for deciding whether to admit fresh evidence in the Court of Criminal Appeal includes a requirement that the evidence was not available to the appellant prior to the trial; or whether that issue is merely an important factor in considering the requirements of justice in all the circumstances of the case; (b) Where an application is made to present fresh evidence that was available prior to trial is it necessary to assert or establish unreasonable, irrational,illogical, or negligent conduct of the defence at the trial? In answering these questions the Supreme Court held that the Court of Criminal Appeal had correctly refused to admit the new evidence in question. It held that the criteria for deciding whether to admit fresh evidence on the hearing of an appeal are those set out by the Court of Criminal Appeal in Director of Public Prosections v. Willoughby, unreported, Court of Criminal Appeal, 18 February 2005: as the public interest required a defendant to bring forward his entire case at trial, exceptional circumstances had to be established before the Court would admit fresh evidence on the hearing of an appeal, the onus being particularly heavy in the case of expert testimony due to the availability of expertise from a multiple of sources. The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial. It must be credible evidence which might have a material and important influence on the result of the case. The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation. In order to comply with the requirements set out in Willoughby, the Court held that it is not necessary to assert or establish negligent conduct on the part of the defence at trial.
3.6 In People (Director of Public Prosections) v. Power [2007] 2 IR 509, the Supreme Court considered whether it was a necessary element in the offence contrary to section 15A of the Misuse of Drugs Act 1977, as inserted by section 4 of the Criminal Justice Act 1999, that the accused was aware that the market value of the controlled drug alleged to be in his possession was greater than the statutory amount. The appellant was charged with an offence contrary to section15A and was convicted and sentenced to a term of imprisonment. He applied to the Court of Criminal Appeal for leave to appeal on the basis that the trial judge failed to direct the jury that it was necessary to prove that the accused was aware the value of the controlled drug alleged to be in his possession exceeded the statutory amount. The Court of Criminal Appeal held that section 15A did not require knowledge of the value of the drugs involved in the offence. The appellant applied for a certificate under section 29 of the Courts of Justice Act 1924 and the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance that is to say, in the prosecution of an offence contrary to section 15A of the Misuse of Drugs, 1977 what mental element must the prosecution prove?
3.7 The Supreme Court held that in the prosecution of an offence contrary to the section 15A of the Misuse of Drugs Act 1977 it was not necessary that the prosecution prove the accused knew or ought to have known that the market value or the aggregate of the market values of the controlled drugs amounted to €13,000 or more. The Court held that the mental element had to be proved by the prosecution in respect of each element of a statutory offence unless the statute expressly or by necessary implication provided otherwise. Read in isolation section 15A did not expressly or by necessary implication provide otherwise. However, in deciding what a statute means, the Court had to take into account the state of the law at the time the enactment was passed. Part II of the Criminal Justice Act, 1994 (confiscation orders) must be read with the Misuse of Drugs Act 1977 and 1984 and those Acts together with Part II of the Act 1994 constitute a code. It follows that in order to succeed in a prosecution under section15A it is necessary for the prosecution to prove that the accused has in his possession controlled drugs above a certain objective value and it would be “absurd to construe section 15A as requiring the prosecution to prove that he had knowledge of the value of the drugs.”
3.8 In M (S) v.Ireland & Others, unreported, High Court, 12 July 2007, the constitutionality of section 62 of the Offences Against the Person Act 1861 was considered. The plaintiff had been charged with 31 offences contrary to section 62 of the Offences Against the Person Act 1861 alleged to have been committed in the 1960’s and 1970’s. The plaintiff sought a declaration that section 62 of the Offences Against the Person Act 1861 was in breach of Article 40.1 of the Constitution on the basis that it amounted to an unjustifiable inequality before the law, as it imposed a maximum sentence of ten years imprisonment for indecent assault on a male, where the maximum sentence for a first conviction of indecent assault on a female was only two years, as provided for by section 6 of the Criminal law Amendment Act 1935.
3.9 In declaring that the statutory maximum penalty provided for in section 62 of the Act of 1861 was inconsistent with the Constitution, Laffoy J. held that the plaintiff had sufficient standing to challenge the constitutionality of section 62 because he had been returned for trial and he was in imminent danger of a determination which would affect his rights. The judge held that section 62 was, on its face, discriminatory on the ground of gender in contravention of Article 40.1 of the Constitution unless the differentiation it created was legitimated by reason of being founded on difference of capacity, whether physical or moral, or difference of social function of men and women in a manner which was not invidious, arbitrary or capricious. However Laffoy J. found that there was nothing in the Act of 1861 or in an objective consideration of the differences of physical capacity, moral capacity and social function of men and women which pointed to a legitimate legislative purpose for imposing a more severe maximum penalty for indecent assault on a male than for the same offence against a female.
3.10 In People (Director of Public Prosections) v. Monaghan, unreported, High Court,14 July 2007, the issue was whether a formal complaint was necessary before bringing a summary prosecution. The facts of the case concerned a brawl in a public house. The accused had complained that he had been assaulted. On a review of the file the Director of Public Prosecutions decided that the appropriate person to charge was in fact the accused. The accused was charged with assaulting the alleged victim and of engaging in disorderly conduct on licensed premises. When the case came on for hearing the alleged victim indicated that he had never made a formal complaint to the Gardaí about the accused. The accused argued that the prosecution’s case was fundamentally flawed as there was no evidence of any formal complaint having been made against the accused.
3.11 The District Court stated a case for the opinion of the High Court as to whether an accused person could be prosecuted summarily for a non-fatal offence against the person in circumstances where the decision to prosecute is based on evidence gathered following a complaint made by the accused himself and no formal complaint has been made against the accused by another person. The High Court held that the validity of a prosecution did not depend upon the existence of a complaint. It is the community’s rights that are paramount in the prosecuting of criminal offences. It was therefore unnecessary that anyone should complain of being the victim, whether an apparent crime is prosecuted summarily or on indictment. The fact that a different person had been complained of than the person ultimately prosecuted or the fact that the person who first complained was himself prosecuted, did not affect the ultimate interest of the community.
3.12 The People (Director of Public Prosections) v. Dolan, unreported, Court of Criminal Appeal, 3 May 2007, dealt with corroboration warnings. The case concerns an appeal against the conviction of the applicant in the Central Criminal Court of anal rape and assault arising from the same incident. At the conclusion of the trial in the Central Criminal Court, counsel for the applicant invited the trial judge to give a corroboration warning about the complainant’s evidence, as provided for by section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990. A corroboration warning means the jury is told it could be unsafe to convict if there is no independent evidence to back up the complainant’s story. In so doing counsel advised the trial judge that there was no material in the case capable of amounting to corroboration such as is required in Irish law. The appeal to the Court of Criminal Appeal concerns the manner in which the trial judge dealt with the application to give the warning to the jury.
3.13 The Court of Criminal Appeal found that the essential grounds upon which the trial judge appeared to have relied in making his ruling not to give a warning consisted only of his belief that Mrs. Justice McGuinness had in some prior judgment indicated that to give such a warning was demeaning of women and also that the Court of Criminal Appeal, in some judgment delivered by it in relation to the warning issue, was seeking to overrule the laws passed by the Oireachtas. Neither judgment could be found. The Court of Criminal Appeal held that there was no reasoned basis for the trial judge’s decision not to give a corroboration warning. The Court stressed however that during the course of a trial it cannot be expected that a trial judge would give an elaborate judgment on every legal issue which arises from his or her ruling, but every important ruling must be reasoned and based on legal principle. The trial judge’s decision did not meet either requirement.
3.14 Many issues were raised in People (Director of Public Prosections) v. Dundon & Others, unreported, Court of Criminal Appeal, 25 July 2007. The applicants in the case were appealing against their conviction for the murder of Kieran Keane, the attempted murder of his nephew Owen Treacy and the false imprisonment of both. It was undisputed that the events related to ongoing gang-related violence in Limerick. The applicants argued that the convictions were unsafe on several grounds. It was argued, amongst other things, that there was a failure on the part of the prosecution to make full pre-trial disclosure to the defence and that no trial should have taken place because of the public interest and media coverage.
3.15 As regards the argument that the prosecution failed to make full pre-trial disclosure to the defence, the Court of Criminal Appeal held that the late disclosure of material concerning incidents in relation to which Owen Treacy was arrested did not add significantly to information the defence already had about Owen Treacy’s associations, previous convictions, his credibility and his involvement in gangland crime and feuding. Furthermore, the Court held that the undisclosed material provided little additional ammunition for cross-examination. The Court stated that that is not to say that the prosecution has any entitlement to disregard its separate responsibility to make full disclosure, but rather that in the context of the facts and circumstances of the case, the omission to furnish every last document which might have referred to Owen Treacy was of a less serious nature than it might have been in another case.
3.16 Addressing the ground of appeal concerning the media and publicity, the Court stated that it was hardly surprising that the trial of the applicants attracted widespread coverage having regard to the fact that ongoing gangland feuds in Limerick are the cause of enormous concern to the entire country. Against this backdrop the Court held that any attempt to empanel a jury whose members were totally unaware of these background difficulties would have been quite impossible. The Court also rejected defence arguments that the trial should have been adjourned to allow a ‘fade factor’ apply.
3.17 In Director of Public Prosecutions v. McNeill, unreported, Court of Criminal Appeal, 31 July 2007, considered the issue of misconduct evidence in cases of repeated sexual abuse. This case related to allegations of sexual abuse by the accused, a man in his fifties, against his neighbour, during the period when the complainant was aged between eight and seventeen years old. The accused was convicted on seven out of eight counts of sexual offences during this period. During the trial of the applicant evidence was admitted which detailed the relationship between the complainant and the accused, including evidence of abuse which was not the subject of any specific charge. The applicant sought leave to appeal on the grounds that such evidence should not have been allowed as it was inadmissible prior misconduct evidence.
3.18 In refusing leave to appeal, the Court of Criminal Appeal considered cases of ‘background misconduct evidence’: where the evidence was part of the continuing background of the relationship without which the evidence before the jury would be incomprehensible. In deciding what ‘background’ evidence should be admitted the Court found that the threshold was higher than mere ‘helpfulness’ but instead involved a careful balancing exercise. It was held that such background misconduct evidence should only be considered where it has substantial explanatory value and the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect. Where such evidence is admitted the Court held that a trial judge may inform the jury of the danger that the complainant is not being truthful about the allegations which make up the background evidence. Turning to the case before it, the Court held that the trial judge had correctly applied the balancing test for the admissibility of misconduct evidence in this case.