Court of Criminal Appeal refused certificate for Supreme Court appeal on materiality of new evidence test.

THE COURT OF CRIMINAL APPEAL

69/09

69/09

O’Donnell J.

Budd J.

O’Keeffe J.

Between:

The People (at the Suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

John Paul Buck

Accused/Applicant

Judgment of the Court delivered on the 20th day of October 2011 by O’Donnell J.

1. This is an application for both an enlargement of time to apply for a certificate pursuant to s.29 of the Courts of Justice Act 1924, as amended, and for a

certificate pursuant to the said Section that the decision involves a point of law of exceptional public importance, and that it is desirable in the public

interest that it should be appealed to the Supreme Court. The applicant’s solicitor has sworn an affidavit setting out the circumstances in which an

application for enlargement of time is necessary, and in the circumstances of this case, the Court took the view that it would be fairer, and quicker, to deal

with both applications together.

2. The point of law sought to be certified is the following:

“Whether on an application to the Court of Criminal Appeal for leave to adduce additional evidence for the purposes of an appeal against

conviction or leave to appeal against conviction, in relation to matters which arose in the course of the trial itself, it is necessary for the

applicant to establish that the evidence is such that it might have a material and important influence on the results of the case.”

It is necessary to set out the circumstances in which it is said this point arises.

3. On the 25th February 2009 the applicant was convicted on one count of murder and one count of arson. He had sought leave to appeal his conviction on

a number of grounds and that application for leave to appeal his conviction is still pending.

4. On the 10th July 2010 this Court heard an application to adduce further evidence in relation to three of the grounds of appeal. The first ground was related

to the date of a consultation between the gardaí and the prosecuting counsel which it was said was relevant to a contention that the trial judge should not

have allowed evidence from Detective Garda Bergin in relation to attempts to caution the applicant or perhaps more correctly ought not to have admitted the

evidence of an inculpatory statement made by the applicant thereafter. This application to admit further evidence was dismissed on the basis of the

application of the test contained in the judgment of this Court in Willoughby v DPP [2005] IE CCA 4 and which was approved by the Supreme Court in The

People (DPP) v O’Regan [2007] 3 IR 805. In essence the Court, taking a flexible approach, was prepared to accept that the first part of the so called

Willoughby test was satisfied in that the evidence was credible, and could be said not to have been in existence or to have been found with reasonable

diligence at the time of the trial. However, the Court was satisfied that the evidence if admitted would not have a material effect on the outcome of the

appeal. No complaint is now made about that analysis. The certified point of law is said to arise in relation to the other two grounds of appeal in respect of

which leave to adduce additional evidence was sought.

5. The second and third aspects of the application to admit fresh evidence related to events which occurred during the trial. The first of these (and the

second aspect of the application overall) was that during the trial, the trial judge had volunteered that the accused’s name rang a bell because, as it

transpired, the accused had been himself a witness in a case in which the judge had been a defence counsel almost 10 years earlier. The fresh evidence

sought to be adduced was the statement that the applicant had made in that case and which was included in the Book of Evidence, and a statement from a

member of the Gardaí that the applicant in that prosecution had not given evidence in accordance with the statement and accordingly had been treated as a

hostile witness at the trial. The ground of appeal was that it was contended that the trial judge ought to have recused himself from the trial.

6. The third aspect of the application related to an application to discharge the jury because publicity had been given on the day of the trial to an attempted

escape from jail of a person with the same surname of the applicant and who was reported to have been convicted of a stabbing offence. The trial judge

made an appropriately delicate inquiry of the jury as to whether they were aware of anything that might have any bearing upon the case and was met with a

negative response. The applicant however contends that the jury ought to have been discharged, and now seeks to adduce evidence of the listenership of

the relevant radio programme and of the circulation of the newspaper in order to support this ground.

7. In each case this Court rejected the application to adduce fresh evidence on essentially the same ground as that upon which it had decided the first

ground, that is that the application failed the third limb of the test in Willoughby. Taking a broad view as contemplated in O’Regan, the Court was prepared

to accept that the evidence could not have been obtained with reasonable diligence at the time of the trial. Nevertheless the Court considered that, if

admitted, the evidence could not be said to be likely to have an important or material effect on the outcome of the case.

8. It is now contended - and this is the essence of the point sought to be certified - that this test was not applicable where the issue in respect of which

fresh evidence was sought to be adduced was something which arose at the trial, rather than where, as is more commonly the case, the evidence relates

to the underlying facts of the offence which is being tried. It is true to say that this distinction was made in the written submissions delivered by the

applicant in respect of the application to adduce fresh evidence, although it is perhaps also fair to say also that no authority was cited in support of the

distinction and that this argument did not loom large in the application to admit fresh evidence. Nevertheless the point was made in the written

submissions, and the Court accepts that Applicant is entitled to advance this ground as a ground for a s.29 Certificate.

9. The essence of the applicant’s argument is that there is a logical distinction between the admission of evidence in respect of the underlying facts in

respect of which a trial is being heard, and the admission of fresh evidence in relation to something which occurred at the trial itself. It was argued that the

Willoughby principles were not well adapted to the latter situation and were clearly and more easily referable to the classic situation of fresh evidence in

relation to the offence itself. In particular, Counsel on behalf of the applicant suggested that the portion of the test in Willoughby/O’Regan, i.e. that the

evidence must not have been known at the time of the trial and must have been such that it could not reasonably have been known or acquired at the time

of trial, was not readily applicable to this type of case.

10. There are however at least two difficulties with this argument. First, the applicant did not fail this aspect of the Willoughby test. Indeed, and contrary to

the Applicant’s submissions it might be said that evidence in relation to matters occurring at the trial but not adduced at the trial itself, might be said more

easily to satisfy the first limb of the test. Taking this case for example, it could not be said that the statement of the prosecuting garda in relation to the

earlier trial, or indeed a copy of the original book of evidence, would have been readily available at the time when this issue arose during the current trial. By

the same token the circulation and listenership figures for various media are not the sort of thing which are to hand on the morning of a trial when an

application is made in relation to alleged prejudicial publicity. Nor is there any difficulty in principle in such cases in satisfying the portion of the test that

requires that the evidence is credible. It is not apparent therefore that the difficulty which counsel contends for, actually exists. In any event even if there

was the asserted difficulty in satisfying these aspects of the Willoughby test, that might justify some alteration of these aspects of the test but would not in

itself be an argument for substituting some lesser standard of relevance for the standard of materiality. Furthermore, if the evidence is such that it cannot be

said to satisfy the test of materiality in Willoughby/O’Regan namely, that it “might have a material and important influence on the result of the case” then it

is difficult to see what injustice is caused by the refusal of the admission of the evidence.

11. The applicant argues that there is no justification in applying the same test to this type of “additional” evidence as that which applies in the classic

“fresh” evidence case because the policy identified in Willoughby as underpinning the rule i.e. that of ensuring that so far as possible all relevant evidence

was adduced at trial, does not apply as readily in this type of case. However, that rationale is not directly related to the materiality requirement. Rather it

explains why only that evidence which could not with reasonable diligence have been adduced at the first trial should be considered at the appeal.

Materiality is perhaps a more general requirement, namely that only new points of substance should be capable of being agitated on appeal. If some such

standard did not apply then valuable court time in the appeal process could be occupied with applications for fresh evidence and subsequent argument, all

having some theoretical substance but lacking any practical reality, since, by definition they would be points which could not affect the outcome. The logic

of having a materiality requirement applies irrespective of the issues in relation to which the new evidence is said to relate.

12. It is a telling feature of this case that the applicant is not able to point to any authority, or even dicta, supporting any part of this contention, whether for

the desirability of distinguishing between the classic fresh evidence case, and the so-called additional evidence in relation to matters occurring in relation to

trial, or, and more importantly, for adopting a test of relevance as opposed to one of materiality in the Willoughby/O’Regan sense. With some ingenuity

counsel argued that this might be said to be a reason to certify the point as being at least a novel point which had not been previously considered. However,

it is the Court’s view that a different conclusion should be drawn from the absence of any authority, dicta or critical commentary supporting the applicant’s

present contention. The dearth of discussion may reflect a general (and the view of the Court correct) view that the proposed distinction does not have merit.

13. The test in Willoughby/O’Regan is by no means novel. It is closely related to the test adduced in appeals in civil cases identified in Murphy v The

Minister for Defence [1991] 2 IR 161, and Lynagh v Mackin [1970] IR 180. That test in turn is similar to that which applies in civil cases in the United

Kingdom: See for example Ladd v Marshall [1954] 1 WLR 1489. The concept of an appeal point arising in relation to the manner in which the trial is

conducted (as opposed to the underlying facts of the case) is something which arises at least as often in civil cases as in criminal cases. It is thus

surprising if the distinction were a valid one, that it would not have been at least canvassed in some of the extensive jurisprudence on this area. In particular

it is some significance that in The People (DPP) v O’Regan, the Court was invited to replace the Willoughby test with a test adopted in other countries of

admission of new evidence in cases of necessity, or in the interest of justice, or at least to read the Willoughby test subject to some such overriding

requirement. However neither in People (DPP) v O’Regan, nor in the authorities from other jurisdictions cited therein does it appear that a distinction was

drawn between so-called fresh and additional evidence.

14. The test of materiality i.e. that the new evidence might (not must) have a material and important influence on the result, is one which is not intrinsically

more appropriate to one type of new evidence rather than another. Instead it is a test of general application. Nor is it a test which is inherently unfair. This

can be judged by considering the obverse of the proposition. As a matter of logic it is very difficult to understand why evidence which passes a test of mere

relevance, but which fails to satisfy a court that it might have an important or material influence in the outcome of the case, should be admitted, since, if

that conclusion is correct, the admission of the evidence would be pointless. Of course there is more to law than logic, and if it could be suggested that in

practice the test created a real risk that a meritorious appeal in a criminal case might be unfairly hindered, then that would be a reason to review the test.

But it cannot be said that the test itself is unduly restrictive. Not only is the requirement merely that the evidence “might” have an influence on the outcome,

but even that test is neither rigid nor inflexible. As Kearns, J. pointed out in O’Regan, the saver for exceptional circumstances defeats that contention.

15. The difficulty facing the applicant, is that the test of materiality, as so expressed, is not one which is particularly difficult to satisfy. It may well be the

case that it is a counsel of prudence to apply the test with some flexibility, since there remains a possibility that what appears hopeless at the interlocutory

stage may in time persuade the Court hearing the full appeal. Where the point is at least stateable and the evidence relevant to it, it may well be relatively

easy to satisfy the test, and a court might consider it in any event more practical to permit the evidence to be adduced, and to leave to the court hearing

the appeal the task of scrutinising the merits of the point.

16. In this case however the parties engaged very fully on the merits of the underlying points of objective bias and prejudicial publicity, and argued them in

some detail. Having considered these arguments, the Court came to the conclusion that the points raised were at best flimsy, with or without the new

evidence and accordingly that the outcome of the case would not be altered by the admission of the evidence. On that basis the Court considered that it

was obliged to refuse the application to admit the new evidence. The applicant may well consider that this was an overly rigorous application of the

Willoughby test, and even an erroneous conclusion. But that in itself is not a ground to grant the certificate under s.29. The Applicant remains free to argue

the original grounds on his application for leave to appeal but this Court does not consider that the issue raised is a point of exceptional public importance

which could justify an appeal to the Supreme Court. In those circumstances the Court will extend the time for the bringing of this application, but will refuse

the application for the s.29 certificate.