Court of Appeal: Hotelier’s appeal over performance of legal team dismissed

About this case:

• Citation:
  [2023] IECA 262
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment for the Court of Appeal, Mr Justice George Birmingham commented that “…there can be no doubt about the fact that the burden of establishing that one was denied a trial in due course of law by reason of inadequacy of representation is indeed a heavy one”.

Background

On 22 March 2013, the appellant hotelier was found guilty of the rape of his then 17-year-old hotel employee, who also worked as a babysitter to his children. The event complained of was alleged to have taken place in the presidential suite of the appellant’s hotel. On 10 June 2013, the appellant was sentenced to six years’ imprisonment, with one year suspended.

Following a change in his legal representation, the appellant delivered a notice of appeal which included contentions that his previous legal representation failed in numerous aspects, and that his trial was unsatisfactory. 

The appellant further particularised his appeal, following a grant of leave to do so, to the effect that his defence was not presented in a satisfactory manner having regard to his instructions and the material provided, in particular that he had instructed his legal team as to the alleged importance of the timeline of the events complained of and was ignored, with the result that no cross-examination on this issue took place at trial.

The appellant’s appeal was heard by the Court of Appeal on 27 February 2020, and judgment was delivered on 9 April 2020. Dismissing the appeal, the Court of Appeal found that the appellant had failed to demonstrate that the manner of the defence at trial rendered the conviction unsafe.

The Supreme Court

The appellant appealed to the Supreme Court, which addressed the question of how an appeal in which an issue was raised as to whether a trial was unsatisfactory due to ineffective representation should proceed. The Supreme Court set out that an accused who alleges that incompetence of representation at trial denied him a trial in due course of law bears a heavy burden of proof, and “what is concerned must be more than a hindsight reanalysis of how perfection of approach might have improved on competence. Criminal trials are full of ups and downs.”

The Supreme Court noted that in the legal aid system, it is assumed that legal representation is of at least a competent standard, and by reference to the Court in The People (DPP) v McDonagh (2001) 3 IR 411, the appeal must show the potential for demonstrating “such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice”. The Court further emphasised that if such potential is present, then any evidence on which it is based should be analysed as to whether it is credible.

The Supreme Court noted that on appeal, apparent shortcomings in the evidence for the appellant were sought to be supplemented by on-the-spot instructions, and that it was stated that the attendances taken from the appellant were no longer on the file of his trial solicitor. 

The Court also highlighted that in the appellant’s affidavits, there was no explanation of why the appellant or the complainant were in the suite, whether the key to the room was given to the appellant immediately upon it being prepared, whether they went up to the room immediately and how the time was spent in the suite.

The Supreme Court further observed that it was ‘manifestly not possible’ to decide whether or not counsel for the defence was actually incompetent without more evidence pertaining to the instructions given or what the accused’s version of events was, and so a serious issue arose which required oral evidence as to whether there was an issue as to times and whether there was a failure to follow the appellant’s instructions.

Noting that the next issue was whether the serious issue raised was supported by credible evidence, the Supreme Court found that if this was established, the consideration would turn to whether a case was made out that the degree of incompetence of representation amounted to a denial of the appellant’s right to a trial in due course of law. 

Finding that the “stark clash of accounts” was not capable of being resolved on the papers before it, the Court found that the matter required to be returned to the Court of Appeal.

The Court of Appeal

Mr Justice Birmingham considered the evidence which was before the trial judge and the events since the judgment of the Supreme Court, noting from the appellant’s affidavits that the appellant had consulted with “numerous” solicitors and had explored the possibility of bringing a civil action as against his former legal advisors, making complaints to the Law Society and Bar Council despite being advised on many occasions that he had no case.

The Court highlighted that despite the appellant’s contention that his defence was not properly run, his trial solicitor stated during cross-examination that the appellant was advised on many occasions that there was a significant difficulty in departing from his original statement to Gardaí, in which the appellant said that the complainant was in the room with him for 45 minutes, as opposed to the 2 hour ‘plus’ span now contended for.

Stating that the focus of the defence at trial was on the period spent in the suite after the activity engaged in had come to an end, originally asserted as a 10-minute period, the Court commented that this approach was “understandable” as it mirrored the point made by the appellant in his interview with Gardaí that the complainant would not have stayed around to send text messages before leaving the suite if a violent act had occurred.

Mr Justice Birmingham commented that “… the sense one has is that the issue of the so-called two-hour-plus defence has acquired a much greater significance in the mind of the appellant than the issue had before trial”, acknowledging nonetheless that the appellant was fully engaged with the trial process all along.

Remarking that whilst the gap between the cutting of the suite key and the making of telephone calls for a taxi suggested that a significant period was spent in the suite, the Court found that the significance of this was “…considerably diminished in circumstances where the appellant was not putting forward a specific account of what was taking up the time”.

Finding that the basic point in relation to timing had been laid before the jury but could have been given greater emphasis, the Court opined nevertheless that “we do not believe that a greater emphasis on the time issue could have had any material effect on the outcome of the trial”.

Conclusion

Not being persuaded that the trial was other than in due course of law, that the trial was unfair or that the performance of the legal team rendered the appellant’s conviction unsafe, the Court of Appeal dismissed the appeal.

Director of Public Prosecutions v. Shaughnessy [2023] IECA 262