Supreme Court: Man successfully appeals conviction for 2001 murder

About this case:

• Judgment:
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In the five-judge Supreme Court, the appeal was allowed on a 3:2 majority, with the leading judgment from Ms Justice Iseult O’Malley holding that there was a “real possibility” that comments made by the trial judge could have been interpreted by the jury as reflecting his personal opinions. The dissenting judges disagreed with this finding and were of the opinion that the comments were permissible.

Background

Mr Brian Rattigan, who was convicted in 2009 for the 2001 murder of Declan Gavin, challenged his conviction on two grounds:

The Criminal Justice Act 2006

The procedure provided for in s. 16 of the Criminal Justice Act 2006, which permits, “in certain defined circumstances, the use of out-of-court statements as evidence of the truth of the contents thereof”. The certified question was whether s. 16 applied to statements of evidence made prior to the coming into force of the Criminal Justice Act 2006.

Mr Rattigan’s primary submission was that the newly-introduced procedure affected his fair trial rights to such an extent that it could not be regarded simply as a change in procedural or evidential rules and therefore should, in accordance with the principles of statutory interpretation, have been presumed not to apply retrospectively.

Furthermore, given that he was charged in 2003 but did not stand trial until 2009, the appellant argued that it was unfair to allow the prosecution to benefit from its own blameworthy delay.

Ms Justice O’Malley, with whom Chief Justice Clarke and Justice McKechnie concurred, rejected Mr Rattigan’s arguments in relation to the applicability of the Act. Firstly, Justice O’Malley stated that the section did not offend any of his constitutional rights, nor did it breach the principle against retrospectivity since it brought about a change in rules of evidence that could only apply to trials taking place after the Act came into force. Furthermore, the delay in Mr Rattigan’s trial was not to prevent a fair trial.

Comments made by the trial judge

The second issue concerned the trial judge’s summing up to the jury. Counsel for the accused objected to a particular passage, at the end of what was otherwise described by counsel as a “model” charge, and applied unsuccessfully for a discharge of the jury.

Mr Rattigan contended that in the particular passage the judge failed to maintain an impartial and fair role; that as a result his charge was unbalanced and unfair and effectively amounted to a direction to the jury to convict; and that the judge erred in refusing an application to discharge the jury.

Justice O’Malley stated that this issue was more difficult to resolve in circumstances where, “from any point of view, the summary given by the trial judge of the legal principles and the facts of the case was flawless”.

Mr Rattigan contended that the trial judge delivered a statement of the prosecution case, and therefore discredited a defence of coincidence.

Justice O’Malley emphasised that it was essential that the judge, “in giving the jury such instructions as the case requires, should fully respect the independence of their role. He or she should neither seek, nor seem to seek, to influence the jury’s verdict by communicating, or seeming to communicate, personal views that appear to point to a particular verdict”.

Allowing the appeal, Justice O’Malley held that the comments of the trial judge “went further than were desirable”, and that there was “a real possibility that they may have been seen as reflecting his personal opinions and that they may well have influenced the members of the jury in their view of the defence case” (R. v. O’Donnell (1917) 12 Cr. App. R. 219; Mears v. R. 1 W.L.R. 818; R. v. Bentley (Deceased) 1 Cr. App. R. 21; DPP v McGinley IECCA 7; inter alia, considered).

In Ms Justice Dunne’s dissenting judgment, with which Justice Charleton concurred, Justice Dunne opined that that the trial judge’s comments “remained within the dividing line of permissible comment” (Mears v R, 97 Cr. App. R. 239 considered).