Court of Criminal Appeal dismisses appeal for leave to add new media evidence grounds due to lack of exceptional circumstances.

No CCA 106/07

Macken, J.

deValera, J.

Gilligan, J.

THE COURT OF CRIMINAL APPEAL

BETWEEN/

DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

CHRISTOPHER GRIFFIN

APPLICANT

Judgment of the Court delivered on the 24th July 2008 by Macken, J.

During the course of the hearing of the application for leave to appeal against conviction, which took place on the 27th June 2008,

Mr. O’Higgins, Senior Counsel for the applicant, sought to introduce a bundle of documents consisting of extracts from certain

newspapers and television or radio reports published during or after the trial of the applicant which took place in December 2006 and

January 2007. The documents sought to be introduced were of two types: (a) those which had already been the subject of

applications for the jury to be discharged made on behalf of the applicant by his then senior counsel in the course of the trial; and (b)

others, published variously during the same period as the above publications, or in the course of the Christmas break in 2006 when

the trial court was not in session, and the last one published in May 2007 after the applicant had been convicted and sentenced.

The above applications for the discharge of the jury on grounds that they might or could have been influenced by the content of the

media articles in question were made on three dates, twice on the 14th December, 2006, and once again on the 15th and 19th

December, 2006. They covered both newspaper publications and television/radio broadcasts. These applications were all rejected by

the trial judge. For the purposes of this judgment it is not necessary, and may be inappropriate at this stage of the application for

leave to appeal, to detail the reasons given by the learned trial judge for their rejection. No further application was made, not only in

respect of any articles published prior to Christmas 2006, but neither in respect of any subsequent publications.

On enquiry as to the relevant grounds for leave to appeal to which this material might relate, grounds (f) (g) (h) and (i)

were all referred to. These grounds read as follows:

“(f) That, throughout the course of the Trial of the Accused, there was extensive press/media coverage of unrelated

issues/events which had occurred prior to the Trial and of unrelated events and issues occurring contemporaneously with

the Trial and all of which highly compromised and prejudiced the Accused and having regard to the extensive nature of

the coverage, the content of the coverage, the cumulative effect of the coverage and the fact that the coverage made

a clear and unambiguous link between the Accused, the Trial of the Accused and the said unrelated criminal activities

being alleged, the Learned Trial Judge failed in his duty to discharge the Jury despite numerous and repeated requests

being made.

(g) By refusing to discharge the Jury, the learned Trial Judge failed to safeguard and vindicate the constitutional, personal

and human rights of the Accused to a fair Trial in due course of law.

(h) That the learned Trial Judge ignored or disregarded the very serious concerns which were raised by the Defence

concerning media/press coverage complained of and proceeded regardless.

(i) That the Learned Trial Judge erred in law by failing to discharge the Jury when the said coverage intensified to the

point at which both the Defence and Prosecution were in agreement as to the requirement for concern.”

None of these, at first glance, appeared to cover the material in question.

Whereas in the first instance Mr. O’Higgins informed the court that he wished this additional material to be considered by the court

under Ground (f) of the original Grounds of Appeal as lodged, after further exchanges, he accepted that the material was not within

ground (f), but submitted rather that he should be permitted to add a new ground, and, wishing to maintain Ground (f) of the original

Grounds of Appeal, he proposed that the new ground would read, in substance, as follows:

“The trial was unsatisfactory by reason of the media coverage during the trial.”

Counsel submits that there are two reasons why the new ground should be admitted. The first is that the learned trial judge in dealing

with the applications to discharge the jury referred to above, had made it clear that he had no intention of, or had set his mind

against, entertaining any application to discharge the jury on the basis of media coverage or on any other basis. Secondly, it is

argued that, in light of the manner in which the learned trial judge dealt with the applications actually made on the basis of media

coverage in December 2006, senior counsel then acting on behalf of the applicant was precluded by that approach from making any

further application.

Senior Counsel for the respondent, Ms. Murphy, argues that this is a new ground, not previously notified to or known by the

respondent. Nor was it referred to in the applicant’s written submission. She contends that in the course of the trial no application of

any description had been made to the trial judge in relation to the material sought to be adduced before this court, save the

publications referred to at (a) above, and the remaining media publications cannot be brought within any of the existing grounds of

appeal. Nor was there, she submitted, any reason why any further applications could not have been made to the trial judge, in light of

the earlier applications actually made. She suggested, however, that in the final analysis, it was for this court to determine whether,

in the interests of justice, the new ground, together with the materials, should be admitted.

Conclusion

This application is, in reality, of a hybrid nature. Firstly, a new ground proposed during the course of the leave hearing, and even then

late in the day, is now sought to be added to the extant grounds of appeal, in the form set out above. Secondly, it is sought to have

admitted into evidence before this court, and resulting from the addition of the new ground, a substantial package of materials not

previously before the trial court. These too were furnished only a short time prior to the hearing, both to the court and to the

respondent. The court accepts the argument of counsel for the respondent that neither the ground nor the materials (save those

coming under (a) above) are referred to in any way in the written submissions dated the 10th June, 2008.

As is also very fairly acknowledged by Mr. O’Higgins in the course of his oral argument, no application had been made by senior

counsel then acting for the applicant in the trial in respect of any of the articles now sought to be introduced save those the subject

of the applications on the 14th and 15th December. That leaves approximately nine or possibly ten additional newspaper, television or

radio articles which, on the basis of his argument, Mr. O’Higgins seeks to have admitted. It is therefore clear that they are to form an

entirely new plank of the appeal against conviction. In that regard Mr. O’Higgins invited the court to have regard to the jurisprudence

arising pursuant to legislation relating to the admission of new evidence, as being of assistance to him, although he did not invoke any

particular jurisprudence in that regard.

Some of the materials in the bundle sought to be admitted as additional evidence at this stage were the subject of applications on

the above dates, are already before the court, and are adequately covered by the extant ground of appeal (f) and related grounds.

Nothing therefore turns on those publications.

As to the remainder of the materials, and the new ground, there are, in the view of this court, three main reasons why this

application should be rejected. They are: (a) the new materials sought to be admitted in evidence at this time fail to comply in a

material way with the case law governing the same; (b) there has been no credible reason advanced as to why the new ground was

not included as part of the original grounds, and (c) neither the new ground nor the materials now sought to be admitted were the

subject of any application or of any ruling during the course of the trial. In the absence of any explanation for this, or any valid

reasons advanced for excusing the same, neither is it in the interests of justice that the new ground should be added or the new

materials admitted at this time.

Dealing first with the application to add a new ground for leave to appeal, the procedure for doing so is found in Order 86 Rule 4 of

the Rules of the Superior Courts, which requires an application to made to this court, not less than fourteen days before the date

fixed to hear the application for leave to appeal. The normal procedure adopted is for the applicant to file a motion seeking to add the

new ground, grounded upon an affidavit setting out the facts and matters giving rise to the application.

Secondly, according to the case law, the failure to include such a ground in the original grounds of appeal is a factor to be taken into

account when considering an application to add a new ground, especially where no ruling was sought during the trial. As was stated

in the judgment of this court (McCracken, J) in DPP v Foley (Unreported, Court of Criminal Appeal, 1 June 2006), in which leave to add

additional grounds was refused:

“The notice of motion seeking to add these grounds is dated 25th April 2006, less than two weeks before the hearing of

the appeal. The court fully accepts that failure to raise a requisition does not automatically prevent the court from

considering a ground of appeal, but when this failure is combined with a failure to include the point in the original notice of

appeal, the court must look with disfavour on the application to amend the grounds of appeal.”

No motion was brought in the present case and no affidavit was filed setting out any reason for the absence of this ground in the

original application for leave. Mr. O’Higgins submits that these procedural requirements, which he did not appear to accept exist,

should not preclude the court from considering his application, even if brought late. There is however no evidence before this court,

by affidavit or otherwise, as to the reasons why this new ground was not included in the original ground of appeal.

While the above procedure applies, it is true that the court may, but in exceptional circumstances, hear and even grant such an

application, if to refuse to do so would be contrary to the interests of justice, in all the circumstances. For the purposes of the

application, and bearing in mind this principle, the court granted Mr. O’Higgins liberty to argue why he should be permitted to add this

new ground, even at this late stage, notwithstanding that no application was made under Order 86, that no such ground of appeal

had been included in the original notice of appeal, and notwithstanding the absence of any application during the trial which might

support the new ground. Mr. O’Higgins now wishes to have the new ground granted and the new materials admitted so as to persuade

this court that, although counsel had been precluded from doing so, had the materials been opened to the learned trial judge and

considered by him, they would inevitably have resulted or ought to have resulted in the jury being discharged.

In dealing with an application of this nature, the case law also suggest that a court may, in an appropriate case, adopt the practice

of permitting the application to be opened and the argument made de bene esse, the decision on the application then being adjourned

until the end of the hearing of the application for leave to appeal on the original grounds (see, DPP v Dundon, Unreported, Court of

Criminal Appeal, 13 February, 2008, and others.) In the present case, however, having regard to the nature of the application, which

is to permit the ground to be added, so as to admit additional evidence in the form of substantial tranches of printed material or of

broadcasts, it is not considered appropriate to adopt that approach in the present case.

Moreover, the well established rules relating to a ground of appeal, whether one originally filed, or, as here, a new ground sought to

be added, are similar. The jurisprudence establishes clearly that, where a ground has not been raised in the course of a trial, either by

way of requisitions on a charge, or by seeking a ruling, such as on an application to discharge the jury by virtue of media exposure

considered by an applicant to be adverse to his interests, two criteria must be met. These are, firstly, that the failure to have raised

the matter must have occurred as a result of some inadvertence on the part of the applicant’s legal advisers, and secondly, there

must be a reason tendered to this court as to why a point was not taken. There is a detailed excursus of the history of this clear

principle or rule, found in long established jurisprudence going back at least to 1929, in the case of DPP v Boyce (Unreported, Court of

Criminal Appeal, 21st December 2005), and, in the case of DPP v Cooke (Unreported, Court of Criminal Appeal, 15th March 2006, in an

application based on circumstances very similar to the within application, Geoghegan, J. giving the judgment of the court stated:

“In relation to the transcript of the child care proceedings, Ms. Staunton … has pointed out that it was within the power

of the applicant to seek to obtain the transcript in advance of the trial. As to whether he would have been successful in

that application is not relevant. In relation to the other additional grounds set out in the notice of motion and sought to

be added, it would appear that no objection or requisition was made in relation to these at the trial and they are now

being raised following on a third firm of solicitors coming into the case and trawling through the transcript. Except in rare

circumstances, this court will not allow additional grounds to be added as a consequence of such process. Indeed even

an original ground of appeal will not normally be upheld if the point raised was one which should have been the subject

matter of a requisition and was not. There is a detailed treatment of this topic in the judgment of this court delivered by

Hardiman J. in The People (DPP) v Cronin (unreported judgment delivered the 16th May 2003). We would strongly endorse

what was said in that judgment.”

The same obligation was also considered in the earlier judgment of this Court delivered by O’Flaherty J. in the case of The People

(D.P.P.) v Moloney (Unreported, 2nd March 1992), in which he stated:-

“We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an

obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any

inadequacy they perceive in his directions to the jury.”

In The People (Director of Public Prosecutions) v Noonan [1998] 2 I.R. 439 Geoghegan J. giving the judgment of the Court stated:-

“It is sufficient to say that, as this court has said on numerous occasions in the past, of course it is the duty of counsel

for the prosecution or the defence to draw the attention of the trial judge to any aspects of his charge which require

reconsideration on his part so as to give him an opportunity of putting any matter right before the jury reach their

verdict.” (emphasis added)

While that extract concerned, specifically, questions arising on the charge, it applies to all matters of concern in the course of the

trial, so that the trial judge may rule on the same. It is, after all, the rulings of the judge in the trial as disclosed by the transcript as

well as his charge to the jury which are the basis of the grounds for an appeal to this court. Several more recent cases since the

above case law was pronounced echo and reaffirm these same principles.

As mentioned above, Mr. O’Higgins very fairly admitted that at no time during the course of the original trial was any application made

to have the jury discharged by reason of the materials in question, save for those referred to above at (a), which are, in any event

already the subject of ground (f). There were, therefore, no rulings whatsoever in respect of the new ground of appeal. Nor was it

suggested on any occasion since, that such a ground existed at any time up to the hearing.

It is important to note the history of the application for leave to appeal since it was filed. Counsel who had represented the applicant

at all times during the course of the trial, continued to appear for him on the several occasions before this court when the matter was

considered in one form or other. Included in these are the following. On the 23rd July, 2007, when the case was fixed for hearing, it

was adjourned because of delay in bringing the applicant to court, the full transcript had only been received but not verified, and

counsel for the applicant properly indicated a desire to have copies available to him. On the adjourned date, the 27th July 2007, a bail

application was made to this court by counsel then acting on behalf of the applicant, and was refused (Hardiman, J). An indication

was given to the court on that occasion that a s.29 application might be lodged in respect of that refusal. The case was further in

the management list for this court on three subsequent occasions, between October 2007 and January 2008, on which date counsel

then acting for the applicant indicated that no s.29 application would be made. The application for leave to appeal was thereupon

placed into the March 2008 List to Fix Dates. On the 3rd March, 2008, it was adjourned until the next list, there being then no full day

(the estimated time required, according to counsel for both parties at that stage) available for the hearing. On the 28th April, 2008, it

was fixed for hearing by the 30th June, with an estimate of one day. At no time, during any of the appearances on behalf of the

applicant on any of the above dates, was an application to add a new ground ever mentioned, nor was there even a suggestion that

any additional material might be sought to be admitted. Nor was any argument arising on the proposed new ground, or even in relation

to the new materials now sought to be adduced, included in the written Submissions filed on behalf of the applicant on the 10th June,

2008, less than three weeks before the hearing. It was not until late in the actual hearing of this application for leave that the

additional material was sought to be opened. Since it was not within any the ambit of any existing ground, it became necessary for

counsel to seek to add a new ground for leave to appeal during the hearing.

None of the foregoing history tends to support an intention to argue for leave on grounds other than those already lodged. Nor does it

tend to support an intention that any argument was to be made based on an allegation as to the manner in which the learned trial

judge dealt with earlier applications, save as set forth at ground (f) above. Nor does it support a suggestion that it was ever

considered that through inadvertence or otherwise any ruling which ought to have been sought in the course of the trial was not

sought, or should be remedied by being included in the original application for leave.

It is however suggested by counsel for the applicant that his former counsel could not have made any further application during the

course of the trial based on media coverage. This is not at all established, in the absence of any evidence on affidavit, and a reading

of the transcript does not disclose support for such a contention nor any evidence of inadvertence. It discloses that counsel for the

applicant made three applications in respect of media coverage over a short two day period, without any apparent reluctance.

Counsel acting for a party is not permitted to resile from his obligation to make any and all appropriate applications on behalf of an

accused. There is no suggestion made on behalf of the applicant that counsel did not follow instructions fully, nor that counsel did

not make all appropriate applications concerning media coverage when he did. The court concludes that this new ground falls into the

class of grounds which were decried in much of the above jurisprudence, being one sought to be adduced at a very late stage and

after a change in legal representation, and a further minute consideration of the transcript, far removed from the reality of the trial.

As to the application to admit new evidence, the court can dispose of this fairly briefly. The new evidence consists of all of the

publications contained in the bundle of materials served on the respondent and furnished to the court, save those which are already

before the court under (a) above, which are within the ambit of ground (f). The parties know precisely which documents are there

referred to. As to the balance of the materials, these can only be admitted as new evidence. They do not appear to this court to be

capable of being classified as such. The question of what is or is not capable of being admitted as new evidence on an appeal has

been the subject of several cases and, at this stage, the position is well established. It is sufficient to refer again to the decision of

this court in DPP v Cooke, supra., where the matter was also considered. In that case, which concerned, inter alia, an application to

add a new ground and within that, as here, to have new evidence admitted, Geoghegan, J stated:

“Turning now to the question of the additional evidence, it would appear that the applicant has failed to satisfy the

criteria which, subject to exceptional circumstances, have to be established before additional evidence with a consequent

new trial can be allowed by this court. Although there have been various decisions of this court over the years, … there is

nothing to suggest that the fundamental principles are any different than those which apply in the Supreme Court. The

most succinct summary of those principles is contained in the judgment of Finlay CJ in Murphy v Minister for Defence

(1991) 2 I.R. 161. The relevant passage reads as follows:

“The principles governing the admission of fresh evidence on an appeal to this Court have been set out in the

decision of this Court in Lynagh v. Mackin [1970] I.R. 180. Neither counsel for the appellant nor the respondents on

this motion has suggested to the Court that any other principles apply, although the Court should review that

decision.

I am accordingly satisfied that the principles applicable are as follows:-

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been

such that it could not have been obtained with reasonable diligence for use at the trial; (emphasis added)

2. The evidence must be such that if given it would probably have an important influence on the result of the case,

though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible,

though it need not be incontrovertible.”

Further consideration of the admission of new evidence is found in the detailed judgment of Kearns, J. in DPP v Willoughby

(Unreported, Court of Criminal Appeal, 18th February 2005) in which, having considered the entire range of jurisprudence on the issue,

he stated, inter alia:

“(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional

circumstances must be established before the court should allow further evidence to be called. …”

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have

been known or acquired at the time of the trial …”.

The most basic and most important requirement set out in the above cases is not met by the applicant in this case. The evidence

now sought to be admitted was clearly in existence during the course of the trial, with the exception of that dated May 5th 2007,

which at this stage cannot, in the view of this Court, have been in any way influential on the jury, even had they seen it, since it

was published long after conviction. The remaining evidence was wholly procurable, even without having to exercise any due

diligence. The transcript of the evidence makes it clear that the counsel for the applicant and his legal advisers were extremely alert

to the existence of possible media coverage, and the jury had given an undertaking to the court that they would not be influenced in

any way by any such media coverage.

There is already as part of the application for leave to appeal, grounds based on the allegation that the learned trial judge handled

the trial in a manner which evidenced a fixed and rigid approach to rulings sought and applications made to the court on behalf of the

applicant, including those relating to media coverage. This and other grounds have been argued before this court in an extremely

detailed and comprehensive manner, and indeed the application, which even on the morning of the hearing was indicated as likely to

finish in a day, has now had a second day allocated to it. There has been and will be ample time for all admissible grounds to be

argued fully on behalf of the applicant. The court finds that there are no exceptional circumstances which, in the interest of justice,

require that the additional ground - which seeks to have placed before this court substantial amounts of material never seen by the

trial judge and upon which no rulings of any kind were sought – ought to be permitted to be added as a ground for leave to appeal.

In the circumstances the applications for leave to add the additional ground and to have the additional materials admitted are

refused.