Court of Criminal Appeal refused leave to adduce fresh expert medical evidence on appeal due to tactical trial decisions.

COURT OF CRIMINAL APPEAL

Appeal No. 240/2003

McCracken J.

Lavan J.

Murphy J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

.v.

THOMAS O’REGAN

APPLICANT

Judgment of the Court delivered on the 27th day of April 2006 by Mr. Justice McCracken

What is before the court is a motion on behalf of the applicant for leave to adduce fresh evidence on the hearing of his

appeal and in particular the evidence of Professor Anthony Busuttil as set out in his report dated 13th November 2003 and

the evidence of Professor John Bonnar as set out in his report dated the 10th October 2003 and as set out in his letter dated

the 18th December 2003. It should be emphasised that this was not the hearing of the application for leave to appeal.

The applicant was charged with the rape of a fourteen year old girl in 1996. The complainant first made a complaint in

respect of the alleged rape some two years later at which stage she was initially examined by her general practitioner Dr.

Deirdre Power, who referred her to Dr. Mary Twomey of the Family Centre at St. Finbarr’s Hospital in Cork. In her report

of 27th July 1998 Dr. Twomey concluded:-

“It is difficult to comment on the physical findings with regard to the allegation in view of:-

(1) The significant time lapse between the alleged incidents and the medical examination.

(2) The fact that she is post pubertal and was at the time of the alleged incidents.

(3) Normal physical findings have been recorded in cases of sexual abuse involving penetration (Child Abuse and

Neglect, vol 13, p.211-226, 1989 – Muram).”

The applicant was initially tried in respect of the charge in a trial commencing on 15th October 2001, but the trial was

aborted at a late stage. No medical evidence was called in the course of that trial. A new trial commenced on 15th July 2003

and on 18th July 2003 the applicant was found guilty of rape. The matter was adjourned to 29th October 2003 for

sentencing and on that date counsel for the applicant indicated that the applicant had sought legal advice and was of the view

that medical evidence ought to have been put in issue by the defence at the trial. In the light of this, solicitor and counsel

who had appeared for the applicant at the trial withdrew from the case and the sentencing hearing was adjourned to 18th

December 2003, on which date the applicant was sentenced to seven years imprisonment. The applicant now argues in his

notice of appeal that the prosecution failed to adduce medical evidence, although it should be noted that there was a

statement by Dr. Power in the book of evidence and that a report from Dr. Twomey was disclosed to the defence.

Subsequent to the initial sentencing hearing, the applicant’s new advisers sought the expert opinion of Professor John

Bonnar and Professor Anthony Busuttil of Edinburgh University. These experts were furnished with the reports of Dr.

Power and of Dr. Twomey, but neither of them physically examined or spoke to the applicant. The application now before

the court is by way of a motion to admit the reports and/or oral evidence from Professor Bonnar and Professor Busuttil at

the hearing of the appeal.

At the trial, both Dr. Power and Dr. Twomey were made available by the prosecution and were willing to give evidence.

The defence expressly rejected an offer to tender these witnesses. The applicant was represented at the second trial by

different counsel from those who represented him at the first trial and it appears that a deliberate decision was made by both

sets of counsel not to call medical evidence. It should be said that in both trials the applicant was represented by experienced

senior counsel.

In the course of the sentencing hearing on 29th October 2003 Mr Anthony Sammon S.C., the applicant’s senior counsel, in

explaining why he could no longer act in the light of the allegation that the medical evidence ought to have been called, said:-

“My view of the matter was that whilst there is a popular misconception that one cannot have penetrative sex and have a

surviving hymen, that is a very grave error. Indeed, it is such that that might be attractive to certain people to try and

forward in the course of a trial. My prudent view, as I saw it at the time, was that such an approach would lead to

prosecution counsel in the case seeking to bring Dr. Twomey into the case and one might end up with a very, very

adverse result from the evidence of Dr. Twomey. But as to whether I was correct in my judgment, this matter gets to this

stage.”

Mr Sammon also made it quite clear that both he and the applicant’s counsel at the first trial were aware of Dr. Twomey’s

report, and in his own case said:-

“That’s a report with which I was familiar with prior to and in the course of the trial and mindful of same.”

There have been several cases in recent times setting out the criteria for the admission of new evidence on appeal, both in

this court and in the Supreme Court.

In The People (At the Suit of the Director of Public Prosecutions) v O’Brien (unreported Court of Criminal Appeal

29th January 1990) McCarthy J. identified three criteria in relation to the admission of new evidence. He said:-

“Firstly…the existence of such evidence could not reasonably have been known at the time of the trial, secondly that it

wasn’t in fact known to the accused or his advisers and, thirdly, that it would materially affect the decision.”

Counsel for the applicant relies on the decision in D.P.P. v Redmond (unreported Court of Criminal Appeal 6th July 2004)

as somewhat extending the admissibility of new evidence beyond those principles. The facts in that case were that in the

course of the trial it emerged that there were bank records which might be very relevant to the defence. However, the initial

evidence of a Garda witness was that there were no records available and the prosecution did not produce any records in

advance of the trial. The court held that these records were new evidence which

were not available at the trial. After referring to the O’Brien case, Denham J. at page 12 of her judgment said:-

“This court would adopt and apply the legal principles of that judgment. The three stated criteria are not the sole

grounds for allowing in new evidence. In the circumstances of this case, there was an apparent misunderstanding prior

to, and initially at, the trial, that there were no bank records. This was the position of the advisers to the applicant until

the evidence given mid-trial by Mr Sheeran. Even then there was a limited reference. In the circumstances that the core

witness had given evidence and the essence of the case was his evidence, such bank records could materially affect the

decision of the jury.

However, in this case the court decides the application on a broader basis. In a sense the prosecution knew of the

evidence when Mr Sheeran went and inspected the file and gave evidence mid-trial. Thus, as in O’Brien, it would be

incorrect to say it could not reasonably have been known to the defence during the trial. But the circumstances were that

it was not disclosed to either side before or initially at the trial. The court considers that it would not be fair if the only

remedy available to the applicant was to seek a discharge of the jury and a new trial, in the course of the trial. The

applicant is entitled to a fair trial.”

Factually, the present case is very different. The applicant and his advisers knew well in advance of the trial that there was

medical evidence available. However, the Redmond case does have one similarity to the present case in that, when it was

disclosed in the course of the trial that there were bank records, counsel for the applicant made a decision not to apply to

discharge the jury, but decided to continue with the trial without the records. As in the present case, a tactical decision was

taken by counsel, although in the Redmond case it was taken in the course of the trial. This was dealt with at page 11 of

the judgment where Denham J. said:-

“Counsel for the prosecution stressed that it was a tactical decision by counsel to proceed with the trial after Mr

Sheeran’s evidence, and having taken that tactical decision the applicant could not now seek to revisit the matter in a

different way. While there are, of course, cases where a tactical decision by counsel on behalf of a defendant may

preclude him from raising a point in a court of appeal, this is not such a case. In this case, in the course of the trial, it

became apparent that there was admissible, relevant evidence, the nature and extent of which was unknown. In the

circumstances where counsel had previously been given the impression that no such records were in existence, counsel

cannot be faulted for not embarking on an inquiry of a witness nor of seeking to have a jury discharged.”

That, of course, was a decision made by counsel in the course of a trial, in circumstances where he had been led to believe

that no records existed and had conducted the defence on that basis until the disclosure was made. The situation in the

present case, as explained by Mr Sammon, is that a considered decision was made prior to the trial to conduct it in a certain

way.

The case which probably comes nearest to the present case is Willoughby .v. Director of Public Prosecutions

(unreported Court of Criminal Appeal, 18th February 2005). In that case an issue arose in the course of a murder trial as to

whether the deceased might have died through an overdose of ecstasy rather than from injuries received at the hands of the

accused. In the course of the trial medical evidence was given by the State Pathologist, Professor Harbison, on behalf of the

prosecution and, by coincidence, by Professor Busuttil on behalf of the accused. The accused was convicted,

notwithstanding the evidence of Professor Busuttil and after the trial a retired pathologist contacted the solicitors for the

accused offering his evidence as expert evidence which disagreed with the evidence of both the experts at the trial. At the

hearing of the appeal an application was made to admit his medical report as new evidence. The court rejected this

application and at page 22 of the judgment Kearns J. on behalf of the court said:-

“The court accepts that the particular interpretation given by Professor Hourihane to the pathology and histology

findings in this case was not known to the accused’s legal representatives at the date of trial. The court, however, is

surprised, to say the least, they did not have such knowledge.

In this case, there had been a traumatic and highly publicised trial in February 2002, which collapsed on the

very issue of the role played by ecstasy in the matter of the causation of the death of Brian Mulvaney. The

critical importance of exploring the role, if any, which ecstasy may have played in his death was thus

glaringly obvious from February 2002. An interval of some thirteen months then elapsed before the retrial took

place. On any view, that was ample time within which to research this issue thoroughly, completely and

exhaustively. The question as to whether fluid in the deceased’s lungs was injury induced or present in the

lungs for some other unconnected reason was clearly a matter which could have been canvassed with

Professor Busuttil in consultation or correspondence and was a matter actually touched upon by Professor

Busuttil when giving his evidence.

There is no suggestion whatsoever in the report of Professor Hourihane that in forming his opinion he is

bringing to bear any new scientific or medical knowledge or insight which is unavailable at the time of either

trial. On the contrary, the references cited by Professor Hurihane at page 7 of his report includes studies

published in the 1980’s and 1990’s, and indeed in one case (in relation to heatstroke), 1946.

Could, therefore, the view now expressed by Professor Hourihane have been obtained at time of trial either

from him, or some other expert in the field, by the exercise of reasonable diligence and on making full and

comprehensive enquiries? In our view, it could. There is no suggestion that there was any impediment in the

way of acquiring this information. The fact that Professor Hourihane came forward by happenstance does not

mean his views or opinions are either inaccessible, unusual or out of kilter with well recognised and readily

available medical or scientific understanding. Indeed they are offered by Professor Hourihane as being part of

such established medical and scientific knowledge.

The application accordingly fails one of the essential limbs of the test elaborated in the authorities.”

For completeness sake, the court will refer to the principles applicable to the introduction of new evidence in the Supreme

Court as set out in the judgment of Finlay C.J. in Murphy v Minister for Defence [1991] 2 I.R. 161 at page 164 as

follows:-

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

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, although it need not be incontrovertible.”

As in the Willoughby case, the court is quite satisfied that in the present case the evidence which is now sought to be

adduced could have been obtained by the applicant’s advisers had they sought to do so. They had the evidence of Dr.

Power and Dr. Twomey and it was always open to them to seek further specialist evidence. The court is, therefore, quite

satisfied that the evidence was available to the applicant had it being sought.

The reason the evidence was not sought was that on two occasions different counsel for the applicant decided that the

evidence of Dr. Twomey could be very damaging to the applicant’s case, and that the risk of putting her in the witness box

was not justifiable. It has not been argued before us that this decision was unreasonable or irrational or indeed illogical. It

has not been suggested that two experienced senior counsel were being negligent in the way they conducted the defence.

In the course of the Willoughby case it was also stated at page 21 of the judgment:-

“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. That onus is particularly heavy in the

case of expert testimony, having regard to the availability generally of expertise from multiple sources.”

The court is quite satisfied, therefore, that the evidence sought to be adduced does not come within the established criteria

for the admission of additional evidence on appeal. It was evidence which could have been obtained on behalf of the

applicant, and might well have been sought had the decision being taken to defend the case on the basis of medical evidence.

It has frequently been said in this court that the court will not allow an appellant to trawl through the transcript of a case,

sometimes many months later, in an attempt to find points which might assist the appellant but which were not raised at the

trial. In the view of this court the situation is very similar where a tactical decision was taken before the trial which it is now

sought to challenge. If the Court of Appeal is to consider matters which were deliberately not raised in the course of the trial,

there must be exceptional reasons for doing so. A decision as to the basis on which a defence is to be conducted can at times

be a very difficult decision, and, as in the present case, can involve detailed consideration of the possibilities that a certain

approach may assist, or may seriously damage, the case being put forward on behalf of the accused. Once that decision is

taken, the dye is cast and it is completely reasonably and logical that in conducting a defence in accordance with such a

decision, certain other possible defences will be rejected or not put forward.

The court accepts that there may be exceptional circumstances in which a different approach may be taken on appeal, for

example in the Redmond case where the facts which could have led to a change of tactics only emerged in the middle of

the trial. There may also be exceptional cases where the decision was clearly irresponsible or irrational, but that is certainly

not so in the present case. The court will not allow an accused to put forward a perfectly rational defence, and when it fails,

to defend the accusation on a different basis.

Accordingly the court refuses to allow the new evidence to be adduced.

DPP v O’Regan