THE COURT OF APPEAL
[2015 CA 217]
Birmingham J.
Sheehan J.
Mahon J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT of Mr. Justice Sheehan delivered on the 10th day of May 2016
1. This is an appeal against conviction in which the central question that arises for this Court’s determination is whether or not in the circumstances of this case, the prosecution was under an obligation to disclose to the defence prior to the trial that it proposed to call rebuttal evidence tending to undermine the credibility of the accused in circumstances where a notice of alibi had been served.
2. Following a two day jury trial the appellant was convicted of burglary contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and sentenced to three years imprisonment.
3. The appellant challenges his conviction on three separate grounds as follows:-
4. In order to consider these grounds of appeal it is necessary to consider the background to the offence and the relevant evidence.
5. The prosecution case depended primarily on the evidence of the occupier, Mrs. Grace Neville, who got up at about 7.40 am on the morning of the 22nd July, 2013, and on her way to the bathroom noticed that one of her kitchen windows was open. She returned to her bedroom, but thinking about the open window, returned to the kitchen and saw someone standing there who she had never seen before. She told this person to get out, but he said he could not leave because there were travellers after him and he was afraid to leave. Mrs. Neville said she would go outside and check. She said that the intruder seemed frightened and so was she. She went outside and out onto the road and could see no one. She returned through her front garden and went back to the house and told the intruder that there was no one outside. He then followed her out through the front garden. He kept telling Mrs. Neville not to be frightened and kept saying that he had not taken anything. When Mrs. Neville returned to her home she noticed that a lot of bags and jackets had been gone through and that a €100 was missing from her purse. She described the man as being quite slim and 4 or 5 inches taller than she was. She said that he had a local accent and a sallow complexion.
6. Some three months later, Mrs. Neville identified the appellant as the person who had been in her house. This identification took place during the course of a formal identity parade held by the gardaí and Mrs. Neville said she recognised the appellant immediately.
7. Under cross-examination, Mrs. Neville said the whole incident lasted about ten minutes. She agreed that she might have been three or four inches out when she first described the intruder’s height to the gardaí. She was asked about her son who gave a different description of the intruder to the gardaí saying that he saw him on the path outside his home and that he thought the intruder was a lot taller than his mother. Mrs. Neville disagreed that her son’s account was at complete variance with hers concerning what he saw from an upstairs window as the intruder had left their home.
8. The appellant was also placed on an identity parade in respect of another burglary and the relevant eye witness picked out a person on that parade who was not a suspect. This burglary had taken place in Sunday’s Well on the same Sunday morning that Mrs. Neville’s house had been entered.
9. The defence chose to raise this in support of an argument in relation to the dangers of visual identification and the suggestion that the appellant was the victim of a mistaken identification in the same way as an innocent person had wrongly been identified as the culprit in the second burglary.
10. The defendant gave evidence in accordance with the notice of alibi he had served. He stated that at the time of the offence he was in Little Island with his girlfriend and had been with her from 4.00pm on the 21st June, 2014 to the 12.30 pm on the 22nd June, 2014. His girlfriend gave supporting evidence. The prosecution called rebuttal evidence to the effect that a garda had called to the appellant’s home the previous evening at 11.30 pm and stated that he saw the appellant at home with his mother at that time. The first time that the appellant was on notice of this evidence was at the conclusion of his evidence in chief. Counsel for the appellant strongly objected to this evidence being admitted, arguing inter alia that he had not been put on notice of this evidence and that to admit the evidence would render the trial unfair. The trial judge gave leave to the prosecution to call the rebuttal evidence which included production of a curfew book which showed that the appellant had previously been subject to a curfew order while on bail.
11. Section 20 of the Criminal Justice Act 1984, as amended, provides:-
“(1) On a trial on indictment for an offence committed after the commencement of this section the accused shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.
(2) Without prejudice to subsection (1), on any such trial the accused shall not without the leave of the court call any other person (in this section referred to as the witness) to give such evidence unless -
(a) the notice under that subsection includes the name and address of the witness or, if the name or address is not known to the accused at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness,
(b) if the name or the address is not included in that notice, the court is satisfied that the accused, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained,
(c) if the name or the address is not included in that notice, but the accused subsequently discovers the name or address or receives other information which might be of material assistance in finding the witness, he gives notice forthwith of the name, address or other information, as the case may be, and
(d) if the accused is notified by or on behalf of the prosecution that the witness has not been traced by the name or at the address given, he gives notice forthwith of any such information which is then in his possession or, on subsequently receiving any such information, gives notice of it forthwith.
(3) The court shall not refuse leave under this section if it appears to the court that the accused was not informed of the requirements of this section -
(a) by the District Court when he was sent forward for trial, or
(b) by the trial court when, on being sent forward by the District Court for sentence, he changed his plea to one of not guilty, or
(c) where he was brought before a Special Criminal Court for trial under section 47 of the Act of 1939, by the Court when it fixed the date of trial.
(4) Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.
(5) Any notice purporting to be given under this section on behalf of the accused by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the accused.
(6) A notice under subsection (1) shall either be given in court during, or at the end of, the preliminary examination of the offence concerned or be given in writing to the solicitor for the prosecution, and a notice under paragraph (c) or (d) of subsection (2) shall be given in writing to that solicitor.
(7) A notice required by this section to be given to the solicitor for the prosecution may be given by delivering it to him or by leaving it at his office or by sending it to him by registered post at his office.
(8) In this section -
“evidence in support of an alibi” means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;
“the prescribed period” means -
(a) the period of fourteen days from the end of the preliminary examination referred to in subsection (6), or
(b) where the accused waives a preliminary examination, the period of fourteen days from the date of the waiver, or
(c) where the accused, on being sent forward for sentence, changes his plea to one of not guilty, the period of fourteen days from the date on which he does so, or
(d) where the accused is brought before a Special Criminal Court for trial under section 47 of the Act of 1939, such period as is fixed by the Court when the Court fixes the date of trial.”
12. Counsel for the appellant submitted at the oral hearing that the main ground of appeal was that the appellant had been deprived of a fair trial because the prosecution did not disclose to him in advance of the trial the fact that it had material within its knowledge which tended to impugn the credibility of the alibi evidence which was proposed to be called by him and was adduced at the trial. Counsel for the appellant made three principle submissions: first, he submitted that having regard to Article 38.1 of the Constitution it was unfair for the prosecution to deliberately withhold the information contained in the curfew book until after the appellant had given evidence. Second, he submitted that the relevant material which the prosecution were under an obligation to disclose included material having some bearing on any offence or person being investigated or the surrounding circumstances unless it was incapable of having any impact on the case. Third, counsel submitted that the prejudicial effect of introducing the evidence outweighed its probative value.
13. In reply, counsel for the respondent submitted, first, that there was no obligation to disclose the material relating to alibi evidence; second, that said material had nothing to do with whether the appellant committed the burglary or not and therefore did not constitute relevant material for the purposes of disclosure; and third, that in contrast to the strong probative value the prejudicial effect of admitting the evidence was limited by other evidence which the jury had repeatedly heard during the course of the trial. This related to the fact that counsel for the appellant at trial had by introducing evidence of a second identity parade conceded that his client had been suspected of another burglary with which he had not been charged.
14. Counsel for the appellant submitted that s. 20(4) of the Criminal Justice Act 1984 in giving a discretion to the trial judge imparted an inference that evidence tendered to disprove an alibi should be disclosed prior to the trial and with prior notification of the trial judge and with due fairness towards the accused.
15. While both parties agreed that the judgment of the House of Lords in R. v. Brown [1998] AC 367 to 381, was relevant, counsel for the appellant submitted that its relevance was limited by the fact that the case distinguished between cases involving defence witnesses and cases involving a defendant and that it only addressed the former. Counsel referred the court to p. 378 of that judgment where Lord Hope stated:-
“Two questions must be addressed:(i) is it reasonable to distinguish material which may assist the defence case from material which relates onto the credibility of the defence witnesses; and (ii) is it consistent with the general principle of fairness to say that the Crown is not under a legal duty to disclose material which is relevant only to a defence witnesses credibility? It should be understood that in posing these questions, I am concerned not with the defendant but only with the defence witnesses.”
16. Counsel for the respondent in the course of his submissions sought to lay great emphasis on the concluding passage of Lord Hope’s judgment at p. 80 where he stated:-
“I would be inclined to attach less weight to the practical problems than that which was given to them by the Court of Appeal. If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found. But it is a fact that in many cases, other than those to which the special rules apply relating to alibi, the defence does not disclose the identity of its witnesses until a late stage. It would place a substantial burden on the Crown for it to be expected to retain, and be ready to disclose at short notice, material which might possibly relate to the credibility only of those whom the defence might possibly wish to call as its witnesses. It would also be unreasonable to expect the prosecutor to reveal information relating to the credibility of defence witnesses previously unknown to the Crown whose credibility did not require to be investigated until their identity was made known to the prosecutor. Yet, if there was a legal duty which required the disclosure of information relating to the credibility of the defence witnesses, there would be no answer to such a demand.
In Reg. v. Williams (Michael) (unreported), 15 April 1994 it was argued that wherever the Crown has, as a result of its investigation of the contents of a notice of alibi, found material which goes to disprove the alibi, it must call it as part of the prosecution case. Rejecting that argument, the Court of Appeal went on to agree with the trial judge that it would be absurd if the prosecutor, having investigated the alibi, were to be obliged to reveal to the defence a statement from a witness which suggested that the alibi might be a false one. A similar issue was raised in Reg. v. Seymour [1996] Crim.L.R. 512 where the basis of the appeal was that a material irregularity had occurred because the prosecution had failed to disclose to the defence that they were in possession of a statement signed by a defence witness as to alibi which was used to cross-examine her when she gave evidence. Delivering the opinion of the court, Judge J. said, in a passage which is at one with the approach which I commend to your Lordships:
‘We regard this as absurd. There will of course be occasions when such investigations will reveal positive information assisting the defence case. Such material will be disclosed in accordance with current principles. Similarly, the results may provide positive evidence to support the prosecution case, and enable the prosecution to serve notice of further evidence and rely upon it as part of the prosecution case. Where, however, as here the result of checking the alibi notice is to provide the prosecution with material which serves to undermine the credibility of a witness, apparently to be relied upon by the defence, there is in our judgment no duty of disclosure.’
Fairness as the defence case and the selection of the defence witnesses are concerned, is preserved by the existing rules of disclosure and by ensuring that the defendant has adequate time and facilities for the preparation of his defence that right which is to be found also in article 6.2(b) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) Cmd. 8969) had for long been part of our law relating to the conduct of criminal trials. The investigation for which the defence are responsible extends to all matters which may effect the credibility of the defence witnesses. The preparation of the defence case is not complete until this has been done. Once it has been completed the defence can be assumed to be in possession of all that is needed to decide which witnesses to lead and which to reject on grounds of credibility. It is unnecessary to extend the duty of disclosure by the prosecutor any further to ensure that the defendant has a fair trial.”
17. In the course of his speech in the Brown case, Lord Hope referred to an issue which we believe to be central to this appeal, namely, that the principle of fairness and the right of an accused to a fair trial must also be seen in the context of the public interest in the detection and punishment of crime and the proper functioning of the adversarial system. If an accused person were entitled to be forewarned about weaknesses in his alibi defence, then cross-examination directed only to credibility would lose much of its force and the jury would be deprived of appropriate assistance in its assessment of the witness.
18. We are not persuaded by the suggestion advanced by the appellant that s. 20(4) of the Criminal Justice Act 1984, as amended, imparts any duty on a trial judge to direct disclosure. Furthermore, we are satisfied that the principle of fairness does not require any type of advance warning to an accused person that evidence is available to the prosecution on foot of which either he or his witness are liable to have their credibility attacked. In a situation where the proposed rebuttal evidence may impact on the character of the accused, then it is a matter for the prosecutor, and ultimately the trial judge, to ensure that this evidence is presented in a manner that does not deprive the accused person of a fair trial. Sometimes this may involve a disclosure or partial disclosure of the proposed rebuttal evidence, but this is a very different thing to saying that the prosecutor is under a duty to disclose rebuttal material which relates to credibility and may also impact on the character of the accused. Finally in this case given that the appellant had dropped his shield in the course of conducting his defence, the need for prior disclosure of the rebuttal evidence that had a tendency to impact on character did not arise. Accordingly, we dismiss this ground of appeal.
Second and Third Grounds of Appeal
19. The second and third grounds of appeal relate to separate aspects of the judge’s charge. The third ground relates to an error made by the trial judge when he referred to a description given by Mr. Geary in terms of height. When he was charging the jury, the learned trial judge said that the description given by Mr. Geary of the person who burgled his house was of a male whose height was 5ft. 9ins to 5ft 10ins. whereas in fact the evidence had been that the male person was 5ft. 10ins to 5ft 11ins.
20. Given the evidence in the case and what emerged in the cross examination of Mrs. Neville, we consider this error to be of no significance and have no hesitation in dismissing this ground of appeal.
21. In the final ground of appeal the appellant submits that the learned trial judge erred by failing to redirect the jury following requisitions with regard to statements of Mathew Neville and Eric Geary. These were statements which had been disclosed to the defence but neither Mr. Neville nor Mr. Geary had been called as witnesses.
22. Matthew Neville was the son of the principle prosecution witness who herself was a retired UCC lecturer. He had seen his mother in the front garden with the intruder and his description of events in the garden varied in some respects with that of his mother. It was also established in evidence that he had described the intruder as being three to four inches taller than his mother’s initial description to the gardaí.
23. Eric Geary’s house in Sunday’s Well had also been burgled that Sunday morning some time earlier and he had seen the intruder. He viewed an identity parade in which the appellant was a member, but did not identify him and instead identified another person as the person who had been in his home.
24. The part of the charge which counsel for the appellant objects to is the following:
“Now you do not speculate about what might be, there are various references to Mr. Geary and the son and what would they have said if they came. I have no idea. I haven’t a notion as they used to say long ago, nor do I care because they are not here. It is not part of the case. You have all the evidence that you are going to get. You have all the evidence that is available and you must make the evidence your decision on the evidence. If it is not enough it is not enough. But there is no point in speculating about people who are not here about what they might say. And the other thing is evidence is what you heard in the witness box or what was proved by way of statements. Anything Geary may have said other than is recited in the statement by Detective Garda Johnson, I don’t have, you don’t have, it is not part of the case. Likewise if the son made a statement other than whatever reference was made by Mr. Devlin, that statement is not part of the case and it is not available to me or to you.”
25. It is clear from this extract that the trial judge did not tell the jury to have no regard for what Eric Geary and Matthew Neville may have said. What he did say was that evidence in this case and so far as it related to Matthew Neville and Eric Geary was only with regard to the portions of their statements that had been put in evidence during the evidence in the case.
26. Accordingly, we dismiss this appeal against conviction.
