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 2006. Some important cases such as CC and A v. Governor of Arbour Hill and the undue leniency review in the case of Wayne O'Donoghue have been so extensively covered in the media that they will not be referred to here.
3.2 As in previous years, the cases are chosen to give a flavour of the type of legal 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 One of the most significant cases during the period was the Supreme Court's decision in H v. Director of Public Prosecutions, unreported, 31 July 2006. The Court considered the jurisprudence which has developed over the last decade in cases where there has been an accusation of child sexual abuse and a significant delay between the alleged abuse, the complaint, and the preferment of charges against the accused. The Court was of the opinion that a key issue in each case is the constitutional right to a fair trial. In reality the core inquiry is not so much the reason for a delay in making a complaint by a complainant but rather whether the accused will receive a fair trial or whether there is a real or serious risk of an unfair trial. The fact that a person who was the victim of a serious crime had delayed in bringing the commission of that crime to the notice of the State authorities is not of itself a ground upon which the State should refuse to bring a prosecution or the courts to entertain one. Delay can be seen in particular circumstances to affect the credibility of a complainant but that should not in general be a ground for preventing a trial proceeding. The prosecuting authorities should decide whether there is evidence of sufficient weight to warrant a charge being preferred and it is also their duty to consider whether a fair trial can be afforded to an accused person. This is an onerous and strict duty since there are circumstances in which the bringing of a prosecution in respect of offences that are alleged to have happened very many years ago would be to visit a serious injustice on the person accused of them.
3.4 In PM v. Director of Public Prosecutions, unreported, Supreme Court, 5 April 2006, 34 months had elapsed between the making of a complaint of gross indecency to the Gardaí and the charging of the accused. The Court had to consider whether the trial should be prohibited due to the delay by the prosecution alone or whether the accused person should also be required to prove that his rights had been infringed by the delay. The court stated that it must engage in a balancing process between the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay and the public interest in the prosecution and conviction of those guilty of criminal offences. Prosecutorial delay alone is not enough to prohibit a trial; one or more of the interests protected by the right to expeditious trial must have been interfered with. In the event, the Court found that the applicant's rights had been infringed and his prosecution was prohibited.
3.5 Enda Lynch v. His Honour Judge Carroll Morran and Director of Public Prosecutions, unreported, Supreme Court, 23 May 2006, held that issue estoppel has no role in Irish criminal proceedings either in favour of the prosecution or the defence.
3.6 This case concerned issues arising at a re-trial where the first jury had failed to agree on a verdict or the jury was discharged without reaching a verdict. The judge at the first trial may have been called on to make various legal rulings on issues such as the admissibility of evidence. Such rulings are not now binding at the second or subsequent trials which can consider the issues afresh.
3.7 Most rulings on issues touching on the cross-examination of a complainant in relation to his or her prior sexual history do not result in written judgements since they arise in the course of a trial.
3.8 Director of Public Prosecutions v. GK, unreported, Court of Criminal Appeal, 5 July 2006, considered the issue. The accused was charged with sexual offences in relation to a female aged between 10 and 15 years when the offences were alleged to have been committed. She was 16 when examined by a doctor when her hymen was found not to be intact. In a first trial the jury failed to reach a verdict on any count. At a second trial the accused was convicted on a number of counts and the jury disagreed on others. The conviction recorded at the second trial was subsequently quashed by the Court of Criminal Appeal.
3.9 Following that second trial a victim impact report was prepared for the sentence hearing which disclosed that the complainant had become sexually active with boys when she was 12 years old. At the third trial, in respect of the counts on which the jury at the second trial had disagreed, the defence sought to cross-examine the complainant on her prior sexual history as disclosed in the victim impact report. The trial judge refused the application. The Court of Criminal Appeal considered that the trial judge was incorrect in so ruling. The prior sexual history may have been relevant having regard to the ruptured hymen and since it may have provided the possibility of some other motive for identifying the accused as the only person with whom she had sexual relations. The Court considered that its sense of unease was heightened by the knowledge that the complainant had withheld the information from her parents, her family GP, the doctor who carried out the examination at age 16 and also from members of the Gardaí to whom she first brought her complaint. The Court quashed the conviction and, as the accused had been through three trials with two appeals and had spent approximately three and a half years in prison on foot of the convictions, did not direct a re-trial.
3.10 The Court of Criminal Appeal in the case of Director of Public Prosecutions v. Carl Loving, unreported, 10 March 2006, considered the severity of a sentence of 5 years with the last 2 years suspended for possession of child pornography. The Court considered that a sentencing court should first have regard to two of the basic mitigating factors, whether the accused accepted responsibility including a plea of guilty and his previous character in particular with reference to the offence in question.
3.11 Secondly, it was necessary to consider how serious and numerous were the actual pornographic images. Thirdly, a Court should consider the circumstances and the duration of the activity leading to the possession of the images. Fourthly, whether the accused had ever shown the material to any other person or otherwise circulated or distributed it in any way.
3.12 In this particular case the acts of accessing the pornography were committed over a short period of time and then stopped. The pornographic images were left unused thereafter. The accused had ceased to abuse alcohol which had played a large part in his offending. It was not disputed that he was generally remorseful and ashamed and there was no suggestion that he had shown or circulated the material to another. There was a total of 175 images. While the accused had previous convictions he had none for this type of offence. The Court reduced the sentence to 1 year.
3.13 In Director of Public Prosecutions v. Michael Tanner, unreported, Court of Criminal Appeal, 30 November 2006, the Court considered the concept of reckless possession. The appellant had rented a car parking space using a false name and always paying in cash. Approximately a year after the space was first rented, drugs were found in the boot of a car parked in the space in question. The value of the drugs was just under €500,000. It was noted that the vehicle was covered in dust. The key of the car in which the drugs were found was found in a car owned by one James Tobin. When the Gardaí phoned the contact number left when the space was rented the message was recorded on Tobin's phone.
3.14 When in custody the appellant was overheard on a phone to say "If the alarm goes off in my car, you can break a window". On overhearing this, the Gardaí went to the appellant's home to discover the side window broken and the alarm activated. In the car was found a swipe card used to access the car park.
3.15 The Court remarked that it may be extremely difficult to establish that an accused had precise knowledge of the nature of an object. The Court considered that proof of reckless disregard for what the object might be may also be sufficient to convict and on the above facts upheld the conviction.
3.16 In Director of Public Prosecutions v. Anthony Barnes, unreported, Court of Criminal Appeal, 21 December 2006, the trial judge, in the absence of the jury, commented on two occasions that neither senior nor junior counsel for the defence was wearing a wig, while praising a recently called barrister who entered the court wearing one, for "his respect of the traditions of his profession". The Court of Criminal Appeal stated that the Oireachtas has clearly specified that advocates were not required to wear a wig in court. Section 49 of the Courts and Courts Officers Act, 1995, provides that: "A barrister or a solicitor when appearing in any court shall not be required to wear a wig of the kind heretofore worn or any other wig of a ceremonial type". The Court stated that as counsel were not required to wear a wig, no one in the court should comment on whether they had one on or not. The trial judge is in a powerful position in a trial and counsel less experienced than those in the present case could have felt that in the interests of their client they should conform with the trial judge's preferences and wear a wig.
3.17 Section 8 of the Garda Síochána Act 2005 creates a new oversight role for the Office of the Director of Public Prosecutions with regard to prosecutions taken in the District Court by members of the Garda Síochána. This oversight role provides for the Director issuing both general and specific directions with regard to the approximately 300,000 District Court prosecutions (including indictable cases dealt with summarily) taken by members of the Garda Síochána each year. In addition the Director may give, vary or rescind directions concerning the institution or the conduct of such prosecutions and may prohibit the taking of prosecutions by members of the Garda Síochána in specific types of offences or in specified circumstances. This represents a very significant increase in the responsibilities to be discharged by this Office and a substantial challenge for the future.
3.18 Section 8 of the Garda Síochána Act came into force in February 2007. In preparation for the implementation of the section, the Office of the Director of Public Prosecutions facilitated a programme of briefing sessions for approximately 400 members of the Garda Síochána at Station Sergeant and Inspector levels in the Dublin Metropolitan Region. This Region was chosen for particular training because outside of Dublin prosecution work is undertaken by senior officers of the Garda Síochána, who are familiar with the Director's requirements through ongoing training provided by his Office. The purpose of the briefing sessions was to ensure that key decision makers in the Garda Síochána are aware of the policies and guidelines which the Office of the Director of Public Prosecutions expects them to adhere to when initiating prosecutions.
3.19 On 23 January 2007 the Director issued a general direction under section 8 which had effect from 1 February 2007. The text of the direction can be accessed on the Office's website at www.dppireland.ie.