Court of Criminal Appeal quashes conviction and grants certificate for retrial due to newly discovered facts showing miscarriage of justice.

[2005] IECCA 140

THE COURT OF CRIMINAL APPEAL

CCA 147/99

Kearns J.

Herbert J.

Butler J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 9 OF

THE CRIMINAL PROCEDURE ACT, 1993

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

NORA WALL

APPLICANT

JUDGMENT of the court delivered this 16th day of December, 2005, by Kearns J.

1. On 10 June, 1999, the applicant was convicted by the Central Criminal Court of rape contrary to common law and of indecent

assault contrary to common law as punishable by s.10 of the Criminal Law (Rape) Act, 1981. On 23 July, 1999, the applicant was

sentenced by the Central Criminal Court to imprisonment for life for the offence of rape and to 5 years imprisonment for indecent

assault.

2. On 27 July, 1999, the applicant brought a bail application before the Court of Criminal Appeal, at which point senior counsel on

behalf of the respondent conveyed to that court the respondent’s consent to the granting of leave to appeal, and further consented

that the appeal be allowed and that a retrial be directed. This startling turn of events was referable to (a) the inadvertent calling as

a witness on behalf of the prosecution, Patricia Phelan, a person whom the respondent had specifically directed should not be so

called at the trial and (b) matters regarding the complainant, Regina Walsh, which had not been disclosed to the lawyers representing

the applicant prior to trial.

3. On 22 November, 1999, counsel for the respondent indicated to the court of criminal appeal that the respondent was not

proceeding with an application for a retrial. Counsel for the respondent further indicated that the respondent “fully and ungrudgingly”

accepted that the applicant was entitled to be presumed innocent of all charges preferred against her. The court accordingly quashed

the conviction of the applicant and the sentences imposed in respect thereof.

The Application before the Court

4. Section 9 of the Criminal Procedure Act, 1993, (“The Act”) provides as follows:-

“9. — (1) Where a person has been convicted of an offence and either—

(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been

acquitted in any re-trial, and

(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that

there has been a miscarriage of justice,

or

(b) (i) he has been pardoned as a result of a petition under section 7, and

(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a

miscarriage of justice,

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal

personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”

5. The applicant, her conviction having been quashed by this court on appeal, now seeks a certificate that a range of newly

discovered facts reveal that there was a miscarriage of justice in her conviction, within the provisions of s.9(1)(a)(ii) of the Act. The

respondent has indicated to the court, both through counsel and in writing, that the respondent is not opposing this application on

the part of the applicant. At the opening of the hearing before this court, Mr. Comyn, senior counsel on behalf of the respondent,

helpfully further indicated to the court that the respondent agreed that a certificate should issue in this case.

The Applicable Legal Principles

6. From an examination of the existing jurisprudence, the applicable legal principles appear to be as follows:-

(1) An application pursuant to s.9 of the Act is a civil claim in which the onus of proving that a newly discovered fact

shows there has been a miscarriage of justice rests on the applicant (The People (DPP) v Pringle (No.2) [1997] 2 IR 225;

The People (DPP) v Meleady & Grogan (No.3) [2001] 4 IR 16).

(2) The standard of proof is the same standard as in any civil claim, namely the balance of probabilities.

(3) An exhaustive definition of the term “miscarriage of justice” has not been attempted by the Court of Criminal Appeal or

by the Supreme Court which has indicated that courts should not attempt such a definition (The People (DPP) v Pringle

(No.2) [1997] 2 IR 225).

(4) Examples of circumstances which may constitute a miscarriage of justice include, but are not limited to the following:-

(a) Where it is established that the applicant was innocent of the crime alleged.

(b) Where a prosecution should never have been brought in the sense that there was never any credible evidence

implicating the applicant.

(c) Where there has been such a departure from the rules which permeate all judicial procedures as to make that

which happened altogether irreconcilable with judicial or constitutional procedure.

(d) Where there has been a grave defect in the administration of justice, brought about by agents of the State

(The People (DPP) v Shortt (No.2) [2002] 2 IR 696).

(5) The exercise in which the court is engaged under the Act of 1993 is to determine whether the newly discovered facts

show that a miscarriage of justice occurred and this is not confined to the question of actual innocence but extends to

the administration in a given case of the justice system itself (The People (DPP) v Meleady & Grogan (No.3) [2001] 4 IR

16. The Newly-Discovered Facts

7. Section 9(6) of the Act of 1993 provides as follows:-

“In subsection (1) "newly-discovered fact" means—

(a) where a conviction was quashed by the Court on an application under section 2 or a convicted person was

pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was

discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact

the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal

proceedings, and

(b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person

or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not

appreciated by the convicted person or his advisers during the trial.”

8. Without demur from the respondent, Mr. Rogers, senior counsel for the applicant, outlined the following facts, which fall into three

broad categories, as constituting “newly-discovered facts” within the meaning of s.9 of the Act:-

(1) Regina Walsh - history of previous allegations, her psychiatric history immediately prior to the making of the

complaints against the applicant and her reliance on ‘flashbacks’, so described by her, to retrieve these alleged incidents

from her past

(a) That the complainant, Regina Walsh, had previously alleged that she was raped in London by a black man, in

respect of which allegation she had made no complaint to the police.

(b) That the complainant, Regina Walsh, had previously had a violent relationship with her then boyfriend Tommy

Mulcahy, in the course of which she was beaten and abused, as a consequence of which she was twice admitted to

hospital, but in respect of which she made no complaint to the police.

(c) That the complainant, Regina Walsh, had made a complaint of assault against her aunt June O’Brien to the

Garda Siochana in Waterford in 1996, which complaint was withdrawn by her some days after making same.

(d) That the complainant, Regina Walsh, had made three complaints to the Garda Siochana of assaults upon her by

one Carol Tracey, who was never traced and in respect of which complaints no proceedings took place.

(e) That the complainant, Regina Walsh, had taken an overdose of tablets in 1996, as a consequence of which she

was admitted to St. Declan’s Ward, Ardkeen Hospital, Waterford, under the care of one Dr. Sheppard, for

psychiatric assessment and treatment immediately prior to her making the complaints the subject matter of the

prosecution of the applicant.

(f) That had the direction of the respondent been followed the only evidence in the case against the applicant

would have been that of the complainant, Regina Walsh, whose recollection of events was admitted to be solely the

product of ‘flashbacks’ and who had no full memory or recall in the matter.

(2) Patricia Phelan - the calling of a witness deemed to be unreliable despite the respondent’s specific direction not to do

so - non-disclosure of the unreliability of the witness.

(g) That on the 24 April, 1997, the respondent had directed, for reasons as yet undisclosed, that one Patricia

Phelan ought not to be called as a witness for the prosecution upon the trial of the applicant. Patricia Phelan had,

on the 10 January, 1997, made a statement to Garda Sinead Connolly, then of Kilkenny Garda Station, purporting to

corroborate the complaints made by Regina Walsh, by giving an eye-witness account of the alleged participation by

the applicant in the alleged rape of the complainant. (h) That the said Patricia Phelan had made prior complaints

involving indecent assault and/or rape to the Garda Siochana against Harry Phelan, her late uncle, and also against

one Michael Fitzpatrick.

(i) That the prosecution by the respondent of the said Michael Fitzpatrick for rape and indecent assault upon the

sister of the said Patricia Phelan and for indecent assault upon the said Patricia Phelan was restrained on the

grounds of delay in judicial review proceedings heard in the High Court before McCracken J., in the course of whose

judgment, doubts were expressed concerning the credibility of the evidence offered by the said Patricia Phelan.

(j) That the said Patricia Phelan had made prior complaints to the Garda Siochana against one Joe Maguire that he

had ripped off her shirt and assaulted her, and these complaints were later withdrawn by her.

(k) That Garda Sinead Connolly, then of Kilkenny Garda Station, who was responsible for taking the aforementioned

statement of Patricia Phelan on 10 January, 1997, in pursuance of the investigation of the complaints made by

Regina Walsh against the applicant, was also a member of the Garda Siochana responsible for investigating the

foregoing complaints by Patricia Phelan against Harry Phelan and Michael Fitzpatrick.

(l) That the respondent herein was a party to the aforementioned judicial review proceedings in Fitzpatrick v DPP, of

which the Chief State Solicitor had carriage on behalf of the respondent and in which the prosecution of Michael

Fitzpatrick on foot of complaints by Patricia Phelan had been restrained by McCracken J.

(3) Regina Walsh and Patricia Phelan - false statements in evidence

(m) That the said Patricia Phelan after the trial, conviction and sentence of the applicant, had voluntarily made

contact with Sr. Mona Killeen, who had been a lifelong friend and supporter, and admitted to her and subsequently

to members of An Garda Síochána also, that she had lied in her statement and in her evidence upon the trial of the

applicant, in saying that she had witnessed the involvement of the applicant in the alleged rape and sexual assault

of the complainant, Regina Walsh, when she had not.

(n) That the complainant, Regina Walsh, had connived in the said deception by the said Patricia Phelan.

Form of the Hearing

9. Having regard to the agreement expressed on behalf of the respondent that this was an appropriate case in which the court should

issue a certificate under the Act, the court decided in the first instance to proceed by means of an outline of the facts to be

presented by counsel for the applicant in the presence of Patricia Phelan. That outline having been completed, the court then invited

Mr. Comyn to consult with Patricia Phelan, who was identified to the court and who remained present in court throughout the

recitation of the facts, to enquire if she wished to give evidence in contradiction of anything stated by counsel. Mr. Rogers having

completed his outline of the facts, the court then rose to enable this consultation to take place, following which Mr. Comyn advised

the court that Patricia Phelan wished only to confirm that the outline of facts was accurate and to further confirm her statement

made to the gardaí on 2 April 2001. In the course of that statement, Patricia Phelan had stated :-

“In the trial, held at the Central Criminal Court in Dublin, I gave evidence on oath in the complaint against Nora Wall and

Paul McCabe. In evidence, I told the judge and jury that I saw Paul McCabe rape Regina and that Nora Wall was present

holding Regina’s legs down. I gave other evidence but I cannot remember what. At the time I gave this evidence in court,

I knew it was wrong and against the law but I just wanted to get back at Dominic (i.e. Nora Wall). I was also afraid to

pull back on my evidence because I thought that once I had made a statement I had to give evidence in court. The

reason why I wanted to get back at Dominic was because she used to physically beat me when I was living the Group

Homes. She gave me a terrible life and I hated her. I remember ringing Sr. Mona Kilkeen. She was a good friend of mine for

many years. It was during the trial, but I cannot remember much of the details. Some months after the trial, I rang Sr.

Mona again. I was very distressed at the time. It was bothering me at this stage about the false evidence I had given in

the trial.”

10. Needless to remark, the fact that a corroborative witness is shown to be unreliable would not of itself amount to a miscarriage of

justice. However the evidence went a great deal further in the present case to the point where it is now established that Patricia

Phelan on 10 January 1997 made a statement to the Garda Siochana which was untrue and at the trial gave entirely fabricated

evidence in circumstances which give rise to a compelling inference of collusion between her and the complainant resulting in the

fabrication of evidence which in the judgment of this court would render it unsafe to leave any of the evidence of either girl to a jury.

The present case was almost equally noteworthy for the significant failures of communication between the various offices and

persons concerned in the prosecution. In recommending that a prosecution against the applicant be brought, the officer charged with

responsibility for the file within the respondent’s office had noted as follows:-

“Evidence of Patricia Phelan

Local gardaí who have dealings with her during previous investigations have found her most unreliable. She never

mentioned to the members anything about a rape at any time. Therefore her evidence should not be accepted as

accurate.”

11. Following receipt of this recommendation, a decision to prosecute the applicant was made on 24 April, 1997. In so directing, an

instruction was given that the defence solicitors be given copies of the statements made by Patricia Phelan and that they be further

informed that the prosecution did not intend to call her as a witness. Owing to an oversight, the Office of the Chief State Solicitor

omitted to inform the legal advisers of the applicant that it was not intended to call Patricia Phelan as a witness at the trial. While her

statements were not included in the book of evidence served on the defendants, senior counsel in advising proofs on 28 April, 1998,

directed that Patricia Phelan be called as a prosecution witness. In a letter dated 1 October, 1999, written by the respondent to the

Attorney General, the respondent stated that:-

“Senior counsel is satisfied that at the time of advising he failed to advert to the direction which was not then present to

his mind. He believes that he failed to realise that the statement of Patricia Phelan had previously been seen by him when

submitted with the original file, and, for the reasons set out above, treated the statement as though it was new material

which had only come to hand.”

12. Unfortunately neither junior counsel or the solicitor in attendance at the trial from the office of the Chief State Solicitor reminded

senior counsel of the direction from the respondent and accordingly Patricia Phelan gave evidence at the trial. The importance of that

evidence may be gauged from the fact that the jury only convicted the applicant in respect of one incident, that being the incident in

respect of which Patricia Phelan gave corroborative evidence. In respect of the other offence, which depended exclusively upon the

evidence of the complainant, the jury acquitted the applicant. Further, the learned trial judge had seen fit in his summing up at the

conclusion of the trial to decide, in exercising the discretion vested in him so to do by statute, to warn the jury about the dangers of

acting without corroboration on the evidence of the complainant alone.

13. In the course of his outline of the facts to this court, Mr. Rogers also drew the court’s attention to similarities in detail which

emerged in the statements furnished by the complainant and Patricia Phelan, suggesting connivance to a significant degree between

the two girls. He further adverted to the fact that Garda Sinead Connolly was a garda officer common to both this particular

prosecution, and the prosecution of Michael Fitzpatrick, wherein McCracken J. had expressed doubts of his own about the credibility

of Patricia Phelan as a witness.

Conclusion of This Court

14. In acceding to the application of the applicant herein, the court does not find it necessary to distinguish in terms of gravity

between the various newly-discovered facts which the court is satisfied show that there has been a miscarriage of justice in this

case. The prosecution which did take place inasmuch as it involved the tendering of corroborative evidence by a witness known to be

unreliable was thus, in that format, a prosecution that should not have been brought. There was further a most unfortunate

breakdown in communications or systems failure between the respondent’s office, that of the Chief State Solicitor, the Garda

Siochana and prosecuting counsel which the court is satisfied constituted a serious defect in the administration of justice brought

about however unintentionally in this instance by agents of the State. It is now also accepted by the respondent that there had been

significant non-disclosure in this case, including (a) the information that Regina Walsh had made, but not pursued, an allegation of

being raped in England and (b) the non-disclosure of Regina Walsh’s very proximate and material psychiatric history. It seems to this

court that the applicant was further prejudiced during the course of her trial by evidence of which the defence had no prior

notification, namely, that Regina Walsh recalled the alleged episodes of rape by reference to ‘flashbacks and/or retrieved memory’.

There was no scientific evidence of any sort adduced to explain the phenomenon of ‘flashbacks’ and/or ‘retrieved memory’, nor was

the applicant in any position to meet such a case in the absence of prior notification thereof.

15. As previously indicated, this court does not find it necessary on the agreed facts of this case to elaborate a hierarchy of the

newly-discovered facts which either singly or cumulatively amount to a miscarriage of justice. Virtually all of the newly-discovered

facts are facts of significance which confirm the court in its view that there has been a miscarriage of justice in this instance.

16. The court will therefore grant the certificate sought in this case.