[C.C.A. NO. 64 OF 2004]
PROSECUTOR And
A. C. APPELLANT
Judgment of the Court delivered on 11th day of May, 2005 by Denham J.
1. This is an appeal by A.C., hereinafter referred to as the appellant, against his convictions by the Circuit Criminal Court on the 24th day of July, 2003.
2. The following charges were preferred to the jury:-
“Count No. 1
Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.A.C. you did on a date unknown between the 1st May, 1992 and 31st July, 1992 at … in the County of Wicklow commit buggery on one L.M.
Count No. 2
Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 but on a date at least five days later than the date referred to in Count Number 1 sexually assault one L.M., a male.
Count No. 3Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 but on an occasion other than referred to in Counts Number 1 and 2 above sexually assault one L.M., a male person.
Count No. 4 Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 and on a date a least five days later than the date referred to in Count Number 1 commit buggery on one L.M., a male.
Count No. 5 Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 in or about seven days after the assault referred to in Count Number 2 did sexually assault one L.M., a male person.
Count No. 6 Statement of Offence
Buggery contrary to Section 61 of the Offences against the Person Act, 1861.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 in or about seven days after the assault referred to in Count Number 2 … in the County of Wicklow did commit buggery on one L.M., a male.
Count No. 7 Statement of Offence
Sexual Assault contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by Section 37 of the Sex Offenders Act, 2001.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 on a date about one month after the assault referred to in Count Number 3 … in the County of Wicklow did sexually assault one L.M., a male person.
Count No. 8Buggery contrary to Section 61 of the Offences Against the Person Act, 1861.A.C. you did on a date unknown between the 1st day of May, 1992 and 31st July, 1992 about one month after the incident referred to in Cont Number 3 … in the County of Wicklow did commit an act of Buggery on one L.M., a male.
There was a further Count, Count No. 9, relating to an offence of buggery and a Count No. 10 relating to an offence of sexual assault.
3. The jury returned verdicts as follows: Count No. 1, not guilty; Count No. 2, guilty; Count No. 3, guilty; Count No.4, not guilty; Count No. 5, guilty; Count No. 6, not guilty; Count No. 7, guilty; Count No. 8, not guilty; Count No. 9, not guilty; Count No. 10, guilty. In other words the appellant was found guilty by majority verdicts of the offences of sexual assault and not guilty of the offences of buggery.
4. The Notice of Appeal is grounded upon a certificate from the judge of the court of trial. The grounds are as follows:
1. The trial was unsatisfactory in that materials requested by the appellant in February, 2003, were only disclosed to the defence just before the commencement of the trial on July 23rd, 2003. The said material contained a matter seriously damaging to the credibility of the complainant which the defence was thereby precluded from putting in cross-examination. The matter was that the complainant said in his evidence that when the accused first molested him in 1992, the accused said “V… likes it – do you want to try it?” V…’s complaint, which was not prosecuted alleged interference in December, 1996.
2. There was no complaint by the complainant of any act of sexual impropriety other than allegations of buggery, of which the accused was acquitted by the jury, and therefore no evidence to support the jury’s finding of guilty of sexual assault.
5. There are two issues on this appeal: (i) the submitted failure of the prosecution to make full and prompt disclosure pursuant to their legal duty; (ii) the submission that the verdicts of the jury were inconsistent with the evidence to the extent of being perverse.
6. Submission on first issue
On the issue of the failure to disclose it was submitted on behalf of the appellant that:-
(i) The defence were aware that a cousin of the complainant had made allegations of sexual abuse against the appellant in this case, which were investigated by the Gardai and on foot of which a decision not to prosecute was taken by the Director of Public Prosecutions. By letter dated the 20th day of February 2003, the solicitor for the appellant requested a copy of the garda investigation file relating to this other complaint.(ii) The documents in question were only furnished to the appellant’s solicitor some few minutes prior to the commencement of the trial of the appellant on the 23rd day of July, 2003, affording no opportunity to adequately peruse the documents.
(iii) It was alleged by the complainant in this case, L.M., in his statement to the Gardai made on the 2nd day of August 2000, repeated in evidence to the jury that on the first occasion, he was sexually abused by the appellant, the appellant said, “V… likes it/do you want to try it”. It is clear from the evidence of the appellant that the first alleged sexual assault took place in the year 1992.
(iv) The allegations made by V. M. related to events which took place in the years 1996 and 1997. Because of the failure of the prosecution to make disclosure in time, this highly important discrepancy and potentially hugely damaging factor for the credibility of the complainant, L.M., was not put to him in cross examination.
(v) While in hind sight it would have been desirable to seek an adjournment to enable the documents to be properly perused, the commencement of the trial of this nature is always a time of considerable tension, when many matters have to be considered and unfortunately such an application was not made.
(vi) In the premises, it was submitted that a conviction by a jury, where the appellant by his counsel did not have an opportunity to put the highly significant matter above referred to, to the complainant, in cross examination, was unsafe and unsatisfactory and should not be allowed to stand.(vii) The prosecution did not comply with its duty to make disclosure in a criminal case.
On behalf of the Director of Public Prosecutions it was submitted that:
(i) the disclosure was made before any evidence was heard and so People (D.P.P) v Meleady [1995] 2 I R 517 and D.P.P. v Redmond (unreported judgment of C.C.A. on 28th July, 2004) do not apply as they relate to facts / evidence coming to light after a conviction.
(ii) The defence had opportunities to look for adjournments or to obtain time or to consider the material.
7. Decision on first issue
This is a case where there were charges of buggery and sexual assault. The prosecution case rested on the evidence of the complainant, which was uncorroborated. As is not uncommon in these cases there was a considerable length of time between the alleged offences and the trial. In such circumstances the core of the case was the credibility of the two key witnesses – the complainant and the appellant. It was a stark choice for the jury. A central issue was credibility of the appellant.
The obligation of the prosecution to disclose is a principle which, quite rightly, was not contested on this appeal. Thus the issue before the Court is whether the prosecution failed to make prompt disclosure in the circumstances, and, if they did, what are the consequences.
The circumstances included the fact that V.M., had made allegations against the appellant also, but after investigation the Director of Public Prosecutions decided not to prosecute.
When this case was in the list for trial in February, 2003, it was adjourned to enable disclosure. By letter dated the 20th February, 2003, the solicitor for the appellant requested a copy of the garda investigation file relating to the other complaint. The documents were furnished to the solicitor for the appellant a few minutes prior to the commencement of the trial of the appellant on 23rd July, 2003.
The defence had been aware that a cousin of the complainant had made allegations of sexual abuse against the appellant, which were investigated by the Gardai, and that a decision not to prosecute has been made by the Director of Public Prosecutions. As noted above, by letter dated 20th February, 2003, the solicitor for the appellant requested information, including details relating to other allegations and statements.
The Court’s attention was drawn to a letter from the Garda Síochána public office to the solicitor for the appellant, dated 7th April, 2003. It was a purported response to the request for information. Inter alia it stated that details in relation to other allegations, copies of written statements and memo, were attached. In fact they were not. Clearly there was an omission in sending the letter in not attaching the items to the letter. Also, there was an omission on receipt of the letter in not realising that the attachments were not there. The consequence was that the requested information was received by the legal advisers to the appellant only minutes before the trial.
Thus the circumstances were that months after the request the documents were furnished minutes before the trial commenced. There was no reasonable opportunity for the defence to consider the contents of the documents. The documents contained important facts including the dates of the alleged offences against V.M. In essence the situation is that while the offences on this prosecution are alleged to have occurred first in 1992, and V.M. complained of events in 1996, yet the complainant stated the appellant said “V… likes it – do you want to try it?”
This case turns on the credibility of the complainant and appellant and in such circumstances no questions were asked relating to this information. The Court is satisfied that a trial, in the circumstances where this information was made available to the legal advisers only minutes before the trial, was unsatisfactory. The Court is satisfied that an unfair situation arose and that the trial was unsatisfactory because materials requested in February 2003 were only disclosed minutes before the trial began on 23rd July, 2003: which materials contained important information relevant to the credibility of the complainant.
It is true to state, as has been submitted on behalf of the Director of Public Prosecutions, that the facts of this case may be distinguished from Meleady and Redmond. Both of those cases were concerned with evidence which had emerged subsequent to the conclusion of the respective trials. The principles applicable to the consideration by this court of such cases are now well established. However, the mere fact that evidence, or potential evidence, relevant to a trial emerges at a late stage in the trial process (rather than after the completion of the trial) does not rule out the possibility that the trial may nonetheless be rendered unsafe and unsatisfactory.
In the view of this court, and without being necessarily exhaustive, the following factors should be taken into account in the assessment of cases where it is contended that the conduct of the defence was prejudiced by the late availability of material evidence.
1. The court should consider, by reference to the principles already established in respect of cases where evidence emerges subsequent to trial, the materiality of the new evidence; 2. By analogy with the principles already established in such cases, the court should consider the extent to which the unavailability of the evidence in question until a late stage in the criminal process was contributed to, on the one hand, by any default on the part of the prosecution, and, on the other hand, any failure on the part of the defendant; and 3. Where some of the failure to ensure that the relevant evidence was available in a timely fashion is attributable to the defence and/or where the defence may been culpable, notwithstanding the late disclosure of availability of such evidence, in failing to utilise such evidence, the court should consider the extent to which it may be reasonable to infer that the failure to call or exploit such evidence may have been due to a tactical decision on the part of the defence.
Applying those principles to the facts of this case the court is satisfied for the reasons set out above that having regard to the stark choice which the jury faced the evidence concerned was highly material. While the apparent failure of the defence to identify the lack of enclosures in the letter of the 7th April, 2003, undoubtedly contributed to the situation, and while there was some limited opportunity for the defence to consider the materials in the course of the trial, it must also be emphasised that a significant proportion of the responsibility for the fact that the evidence in question was not, in practice, available for effective use by the defence must rest upon the prosecution. Finally the court is satisfied that there is no basis upon which it could reasonably be inferred that the failure to use the evidence concerned was due, even in part, to a tactical decision on the part of the defence. In all those circumstances the court is satisfied that the trial was “unsafe and unsatisfactory”. The Court considers, therefore, that the conviction of the appellant was unsafe and unsatisfactory and the Court will therefore quash the conviction of the appellant. Consequently, it is not necessary for the Court to consider the second issue.
The Court has considered the issue of a retrial. In all the circumstances of the case, and having regard especially to the complainant’s evidence that the events occurred in 1992, and the complainant’s evidence that the events were initiated by the appellant with the comment “V… likes it – do you want to try it?”, in the circumstances where the defence are now in the position (with the aid of this new material) to establish that V. made complaints relating to events in 1996, in these circumstances the Court considers that on a retrial a judge would be obliged and constrained to grant a direction, on the basis that a jury properly charged could not safely convict. With that in mind the Court would not order a retrial.
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