Supreme Court: Failure to give prior notice of evidence deprived man of fair trial

About this case:

• Judgment:
  External link
• Judge:
  Ms Justice Iseult O'Malley

Allowing the appeal, Justice Iseult O’Malley said that the defence was entitled to notice of the DPP’s evidence, and that “course taken by the prosecution in this case had the result of limiting both the arguments open to the defence and the trial judge’s options in a manner not intended by the legislature”.

Background

Mr O’Sullivan was charged with burglary after being identified by the householder as the man she had encountered in her house. The man, who lived close to the burgled house, gave evidence at trial in accordance with his alibi notice that he had been at his girlfriend’s house on the night in question which was a significant distance away. The prosecution was granted leave to call rebuttal evidence from a member of the Gardaí, who stated that during curfew checks he had met Mr O’Sullivan at his home on the night in question.

Mr O’Sullivan contended that since this evidence had not been disclosed prior, that he had been deprived of a fair trial.

Court of Appeal

On appeal, the principal submission made was that Mr O’Sullivan had been deprived of a fair trial by reason of a deliberate decision to withhold information until he had given evidence; that the prosecution was obliged to disclose any material capable of having an impact on the case; and that the prejudicial effect of the evidence outweighed its probative value.

Considering R. v. Brown (Winston) AC 367, the key reasoning of the Court of Appeal was “that an accused was not entitled to be warned about weaknesses in an alibi defence where those weaknesses related to credibility, because to do so would detract from the force of cross-examination directed only to credibility; and that while rebuttal evidence going to the character of the accused might need to be disclosed so as to ensure that its presentation did not deprive the accused of a fair trial, the accused in this case had “dropped his shield” and in those circumstances disclosure was not required”.

Supreme Court

Justice O’Malley said that the present case attracted “several different principles of the rules of evidence that… overlap to some extent”.

Relevant to the present case, were the obligations on the prosecution:

Justice O’Malley explained that an accused may lose the protection afforded by the Criminal Evidence Act 1924 if he “drops his shield”.

A witness other than the accused, whether called by the prosecution or the defence, may be asked questions relating to bad character designed to impugn his or her credibility. Credibility may also be impugned inter alia by reference to the fact that a witness has made a previous statement inconsistent with his or her sworn evidence.

The defence is obliged to give notice if it intends to call alibi evidence. If prosecution evidence is to be called, intended to disprove the alibi, it is a matter for the discretion of the trial judge whether it should be adduced as part of the prosecution case or after the defence evidence.

The issue in the present case was whether or not the prosecution, having been put on notice of an alibi, was obliged to inform the accused of the evidence it intended to deploy in rebuttal.

Section 20(4) of the Criminal Justice Act 1984 provides that: “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.”

Justice O’Malley considered that the discretion conferred by s.20(4) of the Criminal Justice Act 1984 must be exercised judicially, and that the issue is one on which the defence must be entitled to be heard.

This entitlement to be heard has to have some real meaning, which Justice O’Malley said meant that the defence was entitled to notice of the evidence, sufficient to enable the defence to determine whether it needs to take further investigative steps in relation to the evidence. Of considerable importance was the fact that earlier notice of prosecution evidence can influence plea advice given to the accused.

Rejecting the proposition that such notice would weaken the impact of cross-examination and “enable the defence to tailor its evidence”, Justice O’Malley adopted the analysis in The People (Director of Public Prosecutions) v. Cull (1980); DPP v. Farrell IECCA 3; R. v. Mills and Poole A.C. 382; the Supreme Court of Canada in R. v. Stinchcombe 3 S.C.R. 326; and R. v. Phillipson 91 Cr. App. R. 226; and stated that the constitutional right to know in advance the case to be made by the prosecution was not displaced in the operation of s.20 of the Criminal Justice Act 1984. Justice O’Malley said that the “course taken by the prosecution in this case had the result of limiting both the arguments open to the defence and the trial judge’s options in a manner not intended by the legislature”.

Finding that “the appellant was deprived of a fair trial”, the appeal was allowed and the conviction quashed.