Court of Criminal Appeal refused certificate to Supreme Court on points of law regarding witness evidence and jury discharge obligations.

THE COURT OF CRIMINAL APPEAL

Macken, J. [No. CCA 106/07]

de Valera, J.

Gilligan, J.

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924 (AS AMENDED)

Between/

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

-and-

CHRISTOPHER GRIFFIN

Applicant

Judgment of the Court delivered on the 18th day of October, 2010 by Macken, J.

By a Notice of Motion returnable for the 18th January, 2010, and arising from the judgment of this Court delivered on the 22nd June,

2009, the applicant has sought a certificate pursuant to the provisions of s.29(2) of the Courts of Justice Act 1924 (“the Act of

1924) (as amended and substituted by s.2 of the Criminal Justice Act 2006), on the basis that the decision of this Court involves

points of law of exceptional public importance, and that it is desirable in the public interest that such questions be certified to the

Supreme Court.

The points of law of exceptional public importance set out in the Notice of Motion, as filed, are the following:-

“1. In circumstances where:

(a) the witness has given a written statement probative of the prosecution case;

(b) at trial gives evidence materially inconsistent with the statement, which is helpful to the defence

and is declared hostile;

(c) is unavailable at a subsequent retrial;

is consideration as to the effect of the unavailability of the witness and/or her evidence to be confined to considering

whether the evidence could be considered material only to the prosecution?

2. In circumstances where:

(a) there is information before the learned trial judge not available to the prosecution or the defence;

and/or

(b) the learned trial judge states that no matter what application is made the trial is going to proceed

to a conclusion;

is there an obligation (on the defence) to make an application to discharge the jury?”

The precise wording of the questions raised are set out above. In the written submissions filed on behalf of the applicant, however,

the first question is divided into two parts, which are described as follows:

“(a) Is there an onus on counsel for the accused to establish that the witness’s evidence in question was “centrally

supportive of his innocence?”;

(b) Is there an onus if the accused requires the witness to give evidence to apply for a warrant to forcefully [sic]

bring the witness to court?”

This new question is not raised in the original question posed in the Notice of Motion pursuant to s.29, but the respondent to the

application has answered the questions as reformulated in the written grounds of appeal filed on behalf of the applicant, and the

Court will deal with the question on that basis, the oral hearing having been adjourned with the possibility of a reformulation of the

suggested question.

The First Question

The issue behind the first question arises where a witness is not available and the trial judge has to decide whether the trial should or

should not proceed. In the present case the missing witness was not available, the defence wished the witness to be available and in

her absence applied to the trial judge for the trial to be brought to an end. As to the context in which the question arises, it is helpful

to adopt a synopsis of the note provided by counsel for the applicant in the written submissions filed, as follows:

(a) The original charges concerned events arising between the years 1993 and 2001. The trial commenced on the 11th

December, 2006 and was adjourned for one day and then continued, and after a relatively lengthy trial, the applicant was

convicted in January, 2007 on each of eleven counts, by unanimous verdict of the jury. The charges included both rape

and sexual assault. Of particular relevance as a background factor is the fact that this was the applicant’s second trial,

the first trial having taken place in May, 2006 when the jury disagreed.

(b) Prior to the first trial, the witness in question, the mother of the complainant and, since in or around 1993, the long-

standing partner of the applicant, had made a statement to the gardaí. As is stated in the judgment in respect of which

this application arises, she was listed as a prosecution witness in the first trial, and also in the Book of Evidence in the

second trial. Her original intended evidence for the first trial was comprised in a statement she made to the gardaí on the

8th January, 2003. That statement included the fact that her daughter, the complainant, had informed her of the alleged

assaults and she, the witness, whom the Court will describe as MD, had then taken the complainant to the garda station

to make a complaint on the 2nd or 3rd January, 2003.

(c) MD’s statement of proposed evidence also contained what was claimed by the prosecution to be an assertion by her

that when she confronted the applicant with the claims, he admitted having sexually assaulted the complainant.

(d) In the first trial in May, 2006 MD agreed, in her oral evidence, that she had brought the complainant to Store Street

Garda Station in early January, 2003 to make a complaint. She did not agree in oral evidence, however, that the applicant

had made the above referred to admission. In the first trial, her evidence, as tendered viva voce, was found not to be in

accordance with the statement she had made to the gardaí, but was materially different to, and inconsistent with, it. She

was, on the application of the prosecution in the first trial, declared by the court to be a hostile witness.

(e) When it came to the second trial, a witness order was served on MD, but she did not appear in response to it, as she

was ill.

The Applicant’s Arguments

On behalf of the applicant, on this question, it had been argued at the trial that, having regard to the evidence which, according to

the transcript, made it clear that the witness was unfit to come to court, there was an obligation on the learned trial judge to halt

the trial and discharge the jury. Counsel for the applicant reminds the Court, on this application, of the following matters: that the

charges in question concerned a period between 1993 and 2001 approximately, and that there was, as is common in cases of this

nature, no independent witness to the events; that a submission made during the course of the second trial by then counsel on

behalf of the applicant, was to the effect that the witness was, in fact, fundamental from the defence point of view, having been

critically involved in the circumstances leading up to the accused being charged. It is said that in the course of the evidence given at

the earlier trial the missing witness had “come to disbelieve the complainant” and it had been argued by counsel in the second trial

that the defence was being deprived of an opportunity to put that material before the jury, which was a critical handicap to the

accused. Further, that counsel then acting for the accused, in the course of a voir dire in the second trial, had also referred to a

section of the transcript from the earlier trial which made specific reference to the cross-examination of MD in which a section of the

missing witness’s statement had been highlighted, to the effect that the complainant was “always making things up” especially if she

had had a fight with someone or did not get her own way; that it was also said by counsel on behalf of the accused that it was vital

for his defence to be able to put this material before the jury; that this would, it was contended, also establish that the complainant,

on the missing witness’s testimony, had made unfounded complaints against at least two other people, and that MD’s testimony was

required to establish these matters.

The written submissions in this application point out that the key issue in the case was for the prosecution to satisfy the jury as to

whether or not the complainant was telling the truth, and it had to be satisfied of this beyond reasonable doubt. The credibility of the

complainant was, therefore, central to the case, in particular the case of the applicant. It is submitted that the evidence which her

mother, MD, gave in the first trial had the potential to impact severely upon the complainant’s credibility. Such a matter was

therefore one of substance. Counsel for the applicant in the present application says that the missing witness had, in the earlier trial,

clarified the circumstances, as she viewed them, of the conversation surrounding the alleged admission, and had explained that there

was not, in fact, any admission on the part of the applicant, and moreover, that the complainant was in the habit of “making things

up” when she had had an argument with the applicant, and had made claims against others in the same vein. The jury had disagreed

in the first trial, and counsel submits that while it cannot be said that the evidence of MD was the reason for the disagreement, nor

could it, however, be excluded as being the reason therefor. It is argued in the circumstances that the evidence of the missing

witness was central to the case, in particular that of the defendant, and most particularly to their claim that (a) there was no

admission and (b) the complainant was not credible.

Counsel for the applicant points out, correctly, that at several points during the course of the second trial, the learned trial judge

indicated that he would be willing to issue a warrant to procure the missing witness’s attendance, if required, but counsel then acting

on behalf of the accused had indicated that if the witness was brought to court in such circumstances this “would aggravate the

circumstances of unfairness to my client so far as to the holding of the trial in this complex, which is clearly connected with the

prison”. It is said that this submission is consistent with the evidence of Dr. Lynam, who had examined the missing witness, and who

did not consider that a “heavy handed approach” would “improve matters”. Counsel for the accused had indicated at trial that he did

not wish the missing witness to give evidence until it had been established that she was well enough to do so.

The principal features of the judgment of this Court’s decision on the witness, MD, are set out in the written submissions. Certain

issues are stated as arising, among them: (1) the fact that the onus is on the prosecution to prove its case beyond reasonable

doubt; (2) that the assessment of a missing witness’s evidence depends on the individual circumstances of each case; (3) where a

prosecution is brought on the basis of an allegation which is uncorroborated, and of antiquity, the credibility of the complainant will be

paramount; (4) the purpose of such evidence, that is to say, the evidence of a missing witness, is not to support the innocence of

the accused, but rather to see whether the evidence which she might give is capable of raising a doubt about the credibility of the

complainant, and therefore of her evidence; and (5) that the placing of an onus on a defendant to establish that the evidence is

centrally supportive of the innocence of an accused is to place an onus which is inconsistent with the established burden of proof.

It is contended finally, that two points arise from the foregoing concerning the issue of a warrant: (a) no function could be usefully

served by having a person arrested and brought to court to give evidence when it had already been established that the person is

unfit to do so, as such a person cannot, by definition, be a reliable witness; and (b) it would be improper to apply to a court to

forcibly bring a witness to a trial, in circumstances where there existed a finding that she was unfit and too unwell to attend. Finally,

it is said that securing the presence of the witness by forcibly bringing her to court is not appropriate, nor is it in conformity with any

norm.

In oral evidence before this Court and arising from the foregoing, it is further argued on behalf of the applicant that the issue of law

which arises is, what is the appropriate test to be applied in circumstances where there is a missing witness of the type mentioned

above. It is contended that there is no certainty the witness would be declared hostile, since the case made on behalf of the

prosecution would not necessarily lead to that result. Further, it was not necessary to establish that the information or the witness’s

evidence would be centrally supportive of the defence, counsel repeating that it might be of assistance in undermining the credibility

of the complainant.

On the other hand it is contended that this Court appears to be saying in its judgment that there is an onus on the defence to

establish that the evidence would be centrally supportive of the defendant’s case, and that this issue requires to be clarified by the

Supreme Court.

The Second Question

The context in which the second question arises may also be briefly described as follows. During the course of the trial there was

certain publicity in the media about a death which had taken place. The death was considered in the media to be related to a feud

going on in the centre of Dublin City. Several applications were made on behalf of the applicant in relation to the publicity in question,

on the basis that (a) the comments made in the course of the media publicity related to the applicant, or could be understood as

doing so; and (b) were, if properly understood, highly prejudicial to the applicant. The applications made, which were for the

discharge of the jury on the basis that the media coverage was such that the applicant could not get a fair trial, were rejected by

the learned trial judge. In the course of one of the applications made (the second application on the 14th December, 2006), the

learned trial judge made the following statement:-

“Very good. One thing I want to make absolutely clear is that the trial is going to proceed to a conclusion. Let there be

absolutely no doubt in anybody’s mind in relation to that.”

The original application for leave to appeal invoked twenty-three separate grounds, which in this Court’s judgment delivered on the

22nd June, 2009, were divided into several different groups. In relation to this particular statement, this Court defined this ground in

the following terms:-

“Wrongly issued blanket refusals of applications made on behalf of the applicant”.

but in the course of its decision, this Court considered the statement to be a “so-called blanket ruling ground”, and the Court

rejected the application for the reasons set out in the judgment, dealing with it both on the basis that it was not admissible, and also

rejecting it on its substance.

The Applicant’s Arguments

In the written submissions on this application, the portion of the decision of this Court of the 22nd June, 2009, upon which the

applicant relies is cited, and he argues that the principles set out in the case of DPP v. Madden [1977] I.R. 336, and adopted in The

People (D.P.P.) v. Cronin No. 2 [2006] 4 I.R. 329, were exceeded or extended by the Court, such that the law requires clarification by

the Supreme Court on this issue. These principles include that the function of this Court is to adjudicate upon rulings made by the

trial judge. Counsel contends that the words clearly constituted a ruling, and that the trial judge gave his “ruling”, within the meaning

of that word, as used in the case of DPP v. Cronin, supra., in peremptory and unequivocal terms. Counsel submits that the judgment

of this Court contained adverse comment to the effect that the ruling was not the subject of objection and that no application was

made to the judge to have him withdraw or retract it. According to the written submissions, as developed in the course of the oral

argument, this constitutes an extension not only of the decision in DPP v. Cronin, supra., but of “the jurisprudence generally”. The

written submissions continue:-

“Clearly, there may be circumstances where, if a judge makes a comment to which an objection is not taken, there may

be grounds for applying the Cronin principle. This, however, was not a comment. It was a ruling by the judge. There has

never been an obligation to ask a judge to withdraw a ruling or to raise an objection to it. It is submitted, in fact, that

the position is to the contrary. Once a judge makes a ruling, counsel is bound by it. Any attempt to have the judge

withdraw it would not be in accordance with accepted principle, or practice and procedures. If this course is justified

under DPP v. Cronin, this is again a significant increase in the parameters of that decision.”

On the combination of the written submissions and the oral arguments advanced, it is argued by Mr. O’Higgins, senior counsel on

behalf of the applicant, that this question too is clearly made out.

The Respondent’s Arguments

On behalf of the respondent, Ms. Murphy, senior counsel, argues that, even on a preliminary basis, both questions proceed on false

premises.

In respect of the first question, the manner in which it is framed disguises the fact that the law is clear and settled on the question

of a missing or unavailable witness. There is no onus on an accused to apply for a warrant when a witness is absent. There is instead

a discretion vested in the trial judge to proceed or not with the trial, on the basis of whether the trial can be conducted fairly in the

absence of the witness. The duty of the trial judge is to exercise that discretion in accordance with law. In respect of the second

question, there was no ruling to the effect contended for by the applicant. Rather what was in issue was a statement made by the

trial judge to which no exception was taken during the course of the trial, and which became the subject matter of a ground of

appeal on the basis that it was an alleged ruling.

Counsel further draws the Court’s attention to the test laid down by s.29 of the Act of 1924, as amended, which requires that the

question should involve both a point of law of exceptional public importance, and also that it is desirable in the public interest that a

certificate should issue, so that an appeal can be brought to the Supreme Court. It is submitted that this Court must be satisfied that

it has been demonstrated that there exists an exceptionally important need for clarity in an area of law that is uncertain, or a need

for re-examination, and that neither question meets these criteria, as the law in respect of both issues is well settled and clear.

Accordingly, the respondent contends that there is no question of law requiring elucidation or clarification by the Supreme Court

arising on the Notice of Motion, even as the first question is reformulated.

Commencing with the first question, and notwithstanding the above preliminary objections, the question, it is submitted, is posed in

the context of a witness who (a) gave a written statement probative to the prosecution case; (b) at the trial gave evidence

materially inconsistent with that statement, which evidence was helpful to the defence and, in consequence, was declared hostile;

and (c) is unavailable at a subsequent retrial. The facility of issuing a warrant was offered to the applicant by the learned trial judge

on several occasions but was declined by the applicant.

The respondent points to the two elements in the question, as reformulated, and suggests that the question misstates the issue. If

there is a missing witness, the trial judge must exercise his discretion to proceed, or not, with the trial. In exercising that discretion,

the trial judge must take account of submissions made by all parties. It is therefore not a question of any onus being placed on the

defence. Were it otherwise, an accused could stop a trial whenever any witness fails to appear, and the potential for mischief in such

circumstances is, according to the respondent, readily apparent.

It is argued by the respondent that as to the first part of this question, it was not an issue that arose in the trial at all. The learned

trial judge did not place an onus on the applicant to establish that the proposed evidence was “centrally supportive of his

innocence”. The question posed, therefore, relates to matters that were not a feature of the trial. In such circumstances, it is said, it

cannot be argued that a certificate under s.29 should now issue in relation to events that did not occur in the trial. The respondent

also submits that this Court, in its decision, did not suggest that, where that witness became unavailable, there is a legal onus on the

applicant to demonstrate that the missing witness’s evidence is “centrally supportive of the accused’s innocence”. Rather, this Court

indicated that, in deciding the issue of the unavailability of a witness, a trial judge should consider the centrality of the witness’s

evidence to the trial and, in particular, to the accused. It would be strange, it is argued, if it were otherwise. If an application is

made to discharge a jury, on the basis that a witness is unavailable, a judge must consider the application and examine why it is

thought an absent witness matters. To do otherwise is an abdication of the judge’s function. However, the applicant had

mischaracterised the judgment of this Court in suggesting that the statement by the Court creates an onus of proof on the applicant,

or foists upon him an onus, to establish, upon some unarticulated standard of proof, the centrality of the purported witness’s

evidence to his innocence. This Court merely suggested that an application to discharge the jury must be based on grounds, and if

the ground in question relates to the unavailability of a witness, then the centrality, or otherwise, of that witness’s evidence should

be asserted. The respondent submits that the learned trial judge was entitled to find, in his discretion, that the proposed evidence

was of no weight whatsoever, these principles being established in the case law referred to in this Court’s decision, and which do not

require further clarification. Moreover, it is argued that the judgment of this Court, properly understood, does not deviate from the

authorities in any way, and does not lay down any new test.

Insofar as the second part of the question is concerned, the law is clear, there being no such onus. The facility of a warrant was

tendered by the learned trial judge to the defence, if the defence wished to avail of that option to secure the attendance of the

witness, and the applicant’s counsel, as he was entitled to, declined to accept such an offer. The respondent refers to the

exchanges between the learned trial judge and counsel for the applicant, on the first day of the trial and repeated on the 13th

December, 2006 in relation to the same witness, and argues that, given the facility was offered and refused, that part of the question

is entirely redundant.

Turning to the second question, the respondent identifies the mischief intended to be cured by the decision in The People (D.P.P.) v.

Cronin (No. 2) [2006] 4 I.R. 329 as being, correctly in this Court’s view, the avoidance of a trawl through transcripts “to see if a point

can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the

original trial, even though competent lawyers at the trial did not see fit to do so”. According to the argument of the respondent,

Cronin (No. 2) is very clear that points of appeal cannot be taken that were not argued at the trial. The exception to this principle is

where there has been an oversight of substance on the part of counsel at the trial, which must be explained and which is sufficient to

ground an apprehension that a real injustice has occurred. That test is not met here.

The question in the present case, according to the argument of the applicant, is that the decision of this Court in its judgment in the

instant case allegedly “has profound implications and it would appear to extend the Cronin decision well beyond what the court ruled

in that case”. In response, it is argued first, that there was no peremptory ruling of the type contended for by the applicant. It is a

mischaracterisation of the position to say “there can be no question that the words as pronounced amounted to a ruling”, and that

“the learned trial judge not only gave a ruling, but did so in peremptory and unequivocal terms”. Asserting that the comment passed

is a ruling elevates the statement of the learned trial judge to a status which it does not and did not have. The fact that this was not

a ruling is borne out by the number and frequency of subsequent applications by defence counsel at the trial on the same subject

matter. Moreover, this Court in its judgment recognised this by characterising the words of the learned trial judge as “a statement”

and, more importantly, in recognising that “the transcript discloses no reluctance on the part of the learned trial judge to hear that

application and all arguments tendered on behalf of the applicant”. It is submitted that it is in the teeth of the actual conduct and

behaviour of the learned trial judge to suggest, or classify, the statement made by him as “a ruling”. It is further pointed out that this

Court found that the defence legal team was “extremely alert” to all objections that could be made on behalf of the accused, and did

make a number of applications before and after the comment made by the learned trial judge. In the present case, this Court, it is

argued, had extensively considered the so-called blanket ruling point and on a comprehensive review of the transcript, ruled that the

applicant’s counsel did not argue the point, and for good and valid reasons, did not seek to have the jury discharged on the basis of

the statement. Moreover, this Court had also rejected the ground for leave to appeal on a substantive basis.

In the present case, there is no issue of law of any, or any considerable, doubt. Both issues are ones on which the law is clear at this

time, and, even if there is an interesting or helpful point of law upon which to have a comment from the Supreme Court, which is of

particular interest to an applicant for a certificate, there is no issue of significant public importance, and no basis upon which the

questions may be posed. This is clear from the reported decision in the case of D.P.P. v. Thomas O’Regan, (Unreported, Court of

Criminal Appeal, 16th June, 2006) a decision of this Court delivered by McCracken, J., in which it was clear that there was an attempt

to appeal, as here, couched as a s.29 application.

Accordingly, none of the criteria laid down in the statute is satisfied.

Conclusion

Having regard to the detailed background facts set out, the extracts from the judgment of this Court and the arguments of the

parties, it is appropriate to start with the law.

The Law on Section 29 Certificate Applications

Section 29 of the Act of 1924 (as amended by the above Act of 2006), in the form in which it applied at the relevant date, provides

as follows:

“(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal

or other matter except in accordance with this section.

(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the

decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is

the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a

point of law of exceptional public importance and that it is desirable in the public interest that the person should

take an appeal to the Supreme Court.”

First, it is a long established principle of law in relation to applications of this nature, that the procedure under s.29 of the Act of

1924, as amended, is primarily appellate in nature and to do justice in a particular case, and is not consultative or advisory in nature

(see Supreme Court decision in DPP v. Patrick Higgins (Unreported, Supreme Court, 22nd November, 1985). Secondly, the onus rests

on the applicant to establish that the point of law must, in any event, be one of “exceptional public importance” and, moreover, it

must be “desirable in the public interest” that the question be referred to the Supreme Court (see The People (DPP) v. Littlejohn

[1978] ILRM.147 at 148 and The People (DPP) v. William Kenny (Unreported, Court of Criminal Appeal, 5th February, 2004). Thirdly,

the point of law, the subject of a certificate sought under s.29 of the Act of 1924, as amended, must be a point of law which

constitutes part of this Court’s decision (see Director of Public Prosecutions v. Higgins, supra, and The People (D.P.P.) v. Kelly

(Unreported, Court of Criminal Appeal, 11th July, 1996) and others. As was stated in the latter case:-

“While such a question as has been posed illustrates a degree of ingenuity by counsel, it is not a point of law arising from

the decision of this Court, and consequently the Court has no jurisdiction to refer such a question to the Supreme

Court.” (emphasis added)

This point was also considered by Blaney J. in the case of D.P.P. v. Eamon Kelly (Unreported, Court of Criminal Appeal, 11th July,

1996), in which this Court found that it was an essential requirement that it is the decision of this Court which must involve the point

of law set out in the Notice of Motion. He stated:-

“The first hurdle which the applicant has to cross on this application is to establish that the decision of this Court on his

application for leave to appeal involves the point of law set out in his Notice of Motion.” (emphasis added)

The court in that judgment also referred to earlier jurisprudence on the same matter, in particular, the judgment in D.P.P. v. Patrick

Higgins, supra, in which Finlay, C.J. stated:-

“While, as has been held in The People v. Shaw [1982] I.R. 2, this Court is not confined on the hearing of an appeal to

the points certified, it is inherent in this section that a point of law certified on these two grounds must be a point

arising before the Court of Criminal Appeal and thus involved in its decision. A point of law certified in the abstract or in

terms wider than those involved in the decision of the Court of Criminal Appeal cannot be entertained for it would be

outside the jurisdiction given to this court by the section which is not consultative, but essentially appellate and for the

purposes of doing justice in the particular case.” (emphasis added)

Applying those principles to the facts in the case before it, this Court in its judgment in DPP v. Kelly, supra, refused a certificate,

counsel having made two submissions relating to fingerprint evidence, neither of which involved a point arising from the decision of

the Court in respect of which the certificate was sought, and stated:

“The court was not asked to make, and did not make any decision, on the question of whether any permanent record

should be made and kept of forensic tests carried out on behalf of the prosecution, and then to be disclosed for the

consideration of the court. What the court decided was that there was no evidence that any permanent records had

been made of the results of the finger print examination, and that the only evidence was that there were no such

records at the date of the trial, if they had ever existed, so there was nothing that could have been disclosed to the

defence”. (emphasis added)

It will be seen from the foregoing principles, and from the manner in which those principles have been applied by this Court, that the

ground must be a ground clearly arising from the decision of the Court, and that even a related ground will not suffice to support a

certificate for leave to appeal.

In no part of the judgment of this Court, did the Court find, or declare, that there is an onus on an accused to establish that the

evidence of a missing witness, which the accused wishes to have available during a second trial, is “centrally supportive of his

innocence”. Nor did the Court find, or declare, that there is an onus on an accused to apply for a warrant forcibly to bring a witness

to court whom the accused wishes to have in attendance.

The context in which the missing witness situation was resolved by the learned trial judge and considered by this Court is clearly set

out in the above narrative. The original application for leave to appeal, insofar as this ground is concerned, complained about a failure

of the learned trial judge “to discharge the jury, but wrongly permitted the trial to continue in the absence of a material witness”.

The issue of law, which was set out by this Court in its decision concerning the judge’s discretion in circumstances where a witness is

unavailable, was stated to be the following:-

“The issue which the law requires a trial judge to consider, for the purposes of exercising his discretion to discharge the

jury in such circumstances, is the centrality of the witness’s evidence to the trial, in particular to the accused.”

In the course of the trial, the learned trial judge ruled as follows:

“Well I am satisfied that she is not fit to attend. I am also satisfied from what I have been told in relation to the position

as regards to this witness, that she would have no evidence to contribute to the trial in any event. She has been

declared hostile on a previous occasion. There is no reason to think that that situation will be any different. In fact, all

the evidence suggests that she will be equally, if not more hostile, were she to be brought here in her present situation.

The jury in that situation would have to be told that no matter what she said on other occasions, no matter how many

times, it wasn’t evidence, and that the only matter capable of being considered evidence in the present trial is what she

says on oath in the course of this trial. Accordingly, her evidence would have no weight whatsoever and her medical

situation is not going to bring about an immunity from the trial and the trial will have to continue without her.”

In order for a trial judge to exercise his discretion he must have before him the contentions of both parties as to the centrality of the

witness’s evidence to the trial, and in particular to the accused. This is done in the usual way in an adversarial proceeding, as the

respondent correctly states, by each party putting forward what he/she contends is the evidence upon which that centrality can be

assessed by the learned trial judge, that is to say, to put forward arguments to support any part of the applicant’s case, which must

or may include any argument undermining any part of the prosecution case, such as (a) an alleged admission; and/or (b) the

credibility of the complainant. The applicant’s case here was that the evidence of the complainant was unreliable, that there had

been no admission made, and that the missing evidence would support these contentions. This is in line with what is now stated in

the applicant’s submission, namely “the purpose of such evidence is not to support the innocence of the accused, centrally or

otherwise, but rather to see whether such evidence is capable of raising a doubt about the evidence of the complainant.” On the

missing evidence element of the trial, that was precisely the “applicant’s case”, and the witness was allegedly central to that case

Here the position is that both parties put forward their submissions in relation to the value or the necessity for the presence of the

absent witness, and the learned trial judge then exercised his discretion, having regard to the submissions and the factual matters

arising in the course of the trial, including factual matters brought to the attention of the judge arising in the earlier trial. As is clear

from his ruling, the learned trial judge had found that the witness would have “no evidence to contribute”, having regard to the

background explained by him. The issue therefore was whether he exercised his discretion properly.

It is clear, and the arguments were advanced to address the centrality of the missing evidence to the defence, on a reading of this

Court’s decision, that what the Court was addressing was whether or not there was any evidence supportive of the applicant’s case,

or the centrality of that evidence for the applicant’s case.

The Court did not either suggest or determine that there is any obligation on an accused to establish that the evidence, if given,

would be centrally supportive of the accused’s innocence, and it is a misreading of the judgment, and in particular, of the arguments

made on behalf of the applicant, both in the course of the trial and in the course of the application for leave to appeal - specifically

referred to in the judgment as being the argument of counsel - to contend that any such obligation was imposed in law. Although in

that part of the written submissions in this application it is correctly stated, in referring to the judgment, that it speaks of the

evidence being “centrally supportive of the applicant’s case”, this is taken in the later part of the same page of the written

submissions, as meaning that this Court found that there was an obligation to establish that the missing evidence be centrally

supportive of the “innocence of the accused”. In that regard it is appropriate to cite what was stated on behalf of the applicant in

the written submissions filed on his behalf in support of the application for leave to appeal. In that part of the written submissions

devoted to the claim that the learned trial judge “failed to discharge the jury, but wrongly permitted the trial to continue in the

absence of a material witness”, the following is written:-

“It is submitted that the evidence given by Marina Doody, as stated above, had at least the effect of negativing the

admission relied upon by the prosecution but it also called into question the evidence given by the complainant herself,

and when considered in its entirety was highly favourable evidence insofar as the interests of the appellant were

concerned, i.e. the evidence was evidence consistent with innocence”. (emphasis added)

Moreover, having concluded the arguments in relation to the matter, the submissions continue:-

“This resulted in the situation where evidence available to the appellant (evidence consistent with innocence) was wholly

lost and the conduct of the case insofar as it required fairness of procedures, must now be criticised.” (emphasis added)

The comment in the judgment reciting what counsel had said was clearly to show that no material had been adduced to support the

argument actually made. What the court was reciting was what counsel for the accused had stated, but what the court addressed,

was whether the learned trial judge, on the basis of the evidence before him, was or was not wrong in law in not granting the relief

sought on behalf of the applicant, on the basis of the centrality of the missing evidence for the applicant. There was, in fact, no

evidence of what MD would say, but the trial court treated the application on the basis most favourable to the applicant, namely, on

the assumption that her evidence would be the same as in the earlier trial. This Court pointed out that counsel had merely contended,

as opposed to established, that if the evidence were the same as that given in the first trial, it would then be “supportive of the

applicant’s innocence”, these being the applicant’s words.

On the second element in this question, this Court found that the most reliable evidence, tendered by the medical expert, was not

suggestive of the missing witness being available to give evidence within any reasonable period of time, a finding clear from the

transcript. Nor can it be understood from the judgment of this Court that there is any obligation imposed on an accused, whether

generally or in the particular circumstances of this case, to make any application for an order that a missing witness be forcibly

brought to court. It was pointed out that facilities were tendered by the learned trial judge to the applicant’s counsel, as would be

expected, but these were not taken up on behalf of the applicant, as was his choice. That is a mere statement of fact.

There was no finding by this Court to the effect contended for by the applicant, as the respondent correctly points out. Despite the

ingenuity of the question, and counsel’s impressive argument on it, and having regard to the jurisprudence cited at the

commencement of these conclusions, the first question is not one which properly arises from the decision of this Court delivered on

the 22nd June, 2009.

As to the second question concerning the so-called blanket ruling, this question too does not arise from the decision of this Court.

The Court was careful to point out that it was a so-called blanket ruling, and repeated this classification of the ground of appeal on

several occasions in the course of its decision. The reason for this was because it is quite clear from the context in which the

statement complained of was made that it could not properly be considered or understood as being a “ruling”. The ruling itself, and its

content, is clear from the transcript. The media coverage applications are considered in detail in the course of the judgment of this

Court delivered on the 22nd June, 2009. The applications themselves came thick and fast in the first series of days of the trial, and in

relation to the so-called blanket ruling it concerns the second and, as the trial developed, the third of the applications made on behalf

of the applicant for the discharge of the jury. It is important to set out the comments of the trial judge in full, which was in the

following terms:-

“Very good. One thing I want to make absolutely clear is that the trial is going to proceed to a conclusion. Let there be

absolutely no doubt in anybody’s mind in relation to that.

Now, obviously there is a great concern in the nation at the moment as to what is happening in the country at the

present time and the question “Who’s in charge?” is a question everybody is asking. The Archbishop of Dublin has been

saying what he has to say about the situation over lunchtime and obviously the press cannot in any fashion be gagged in

relation to expressing concern in relation to what is going on the streets at the present time.

Now, Mr Giblin is entitled not to have anything published during the currency of this trial which would associate his client

with an alleged rape or anything of that kind or with gangsterism. I will receive from either the prosecution or defence

motions for contempt of court in relation to anything published that in any fashion prejudices the accused man in the

course of this trial or can be taken as a reference to him in the context indicated. It is also open to the parties to take

proceedings in the judicial review list. If any newspaper defies or radio station or organ of opinion defies the ruling I am

just giving by prejudicing Mr Griffin’s situation in the course of this trial, they will be dealt with extremely severely. After

the trial is over, the gloves are off, they can publish what they like and, unfortunately, it is a feature of contemporary

journalism that people are never prepared to wait. If Mr Giblin has cause to complain again in the course of this trial,

these publications can be brought before me immediately for the purpose of extremely serious financial penalties.

Ultimately, of course, the punishment for contempt is sequestration of their assets. I am not going to go down the

imprisonment route and give them the satisfaction of martyrdom.”

The applicant now seeks a certificate in relation to this statement on the basis that it was, in fact, a blanket ruling, and that by

refusing to discharge the jury and by making such a ruling, the learned trial judge had effectively prohibited, or actively discouraged,

the making of further applications.

The applicant has, however, as part of this and the earlier application for leave, isolated the general comment of which complaint is

made, which was followed by another general comment, unfairly and wrongly, from the core ruling of the learned trial judge. As was

stated in the judgment, the learned trial judge had heard several applications prior to the application in question, including those for

the discharge of the jury on the basis of (a) the venue of the trial; (b) the failure of the learned trial judge to recuse himself; (c) the

absence of a witness; and (d) earlier media coverage.

It is in that context that the application for leave to appeal was sought, quite apart from the media grounds themselves, that is to

say, on the basis of the so-called blanket ruling ground. The so-called blanket ruling has to be seen in that context, but there is also

another important context in which it has to be viewed. The basis upon which the so-called blanket ruling was objected to as

constituting a proper ground for leave to appeal was that it allegedly established that the learned trial judge had a fixed view in

relation to the trial, that he had set his face against the possibility of entertaining any applications, in particular those relating to

media publicity, that the nature of the so-called blanket ruling was such that counsel was, or was likely to have been, intimidated into

not raising any further such applications, and that, in any event, having regard to the nature of the contended for ruling, it was

pointless for counsel to attempt to raise any such applications.

In fact, on the very next day, as the judgment under consideration makes clear, the very same media publicity, the subject of the

so-called blanket ruling, in respect of which counsel for the prosecution then had fuller instructions, was revisited on a fresh

application for the trial to be halted (on different media related grounds), and a further application was made in relation to media

publicity at a later date. All applications were opened fully on behalf of the applicant and dealt with by the trial judge.

This Court did not accept that this was, in the context argued for, a blanket ruling, or any ruling, on the grounds contended for, but

nevertheless also dealt with the matter on the basis that, even if it were an admissible ground of appeal, which this Court did not

accept, the test of establishing that the statement made, in response to an application in a voir dire, would lead to a real or serious

risk of an unfair trial, was not met. In the circumstances, even if the applicant could have properly classified the statement as being a

ruling, the application for leave to appeal was rejected on substantive grounds also, having regard to the history of all the

applications made. No suggestion is now made that in doing so, any issue of law arises which could be the subject of a s.29

certificate.

In the foregoing circumstances, neither question as posed, and in the case of one of them as reformulated, is one which arises from

the decision of this Court. Moreover, the provisions of s.29 of the Act of 1924, as amended, requires that the decision of this Court

involves both a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be

taken to the Supreme Court so that the point of law can be clarified. The applicant's arguments on this application do not support his

contention that this Court's decision involves any point of law of "exceptional public importance" within the meaning of s.24 of the

Act of 1924, as amended. This is so notwithstanding that the Court recognises that the section is intended to be considered as

appellate in nature, and to do justice to the applicant, as is clear from the case law. Nor can the Court conclude from the submissions

made, and having regard to its decision, that it is in the public interest that either question should be referred. Having regard to the

foregoing, the application for a certificate, pursuant to s.24 of the Criminal Justice Act 1924, as amended, is refused.