Court quashes rape convictions due to new evidence contradicting prosecution witness and unsafe trial.

COURT OF CRIMINAL APPEAL

[CCA No. 223 & 224/2011]

MacMenamin J.

Moriarty J.

Herbert J.

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

AND

EAMON FLANAGAN AND SEAMUS FLANAGAN

Accused/Applicants

Judgment of the Court of Criminal Appeal delivered by Mr. Justice John MacMenamin on the 24th day of November, 2014

1. At the conclusion of the appeal, this Court quashed the applicants’ convictions and noted that counsel for the Director of Public

Prosecutions had indicated that there would be no application for a retrial. The Court now gives its reasons for its order.

2. The first-named applicant was tried at the Central Criminal Court on one count of rape, contrary to common law as provided for by

s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal

Law (Rape) (Amendment) Act, 1990. The second named applicant was, at the same time, tried on one count of rape contrary to s.48

of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law

(Rape) (Amendment) Act, 1990; and also one count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990. The

two applicants, who are brothers, were tried jointly over six days in May, 2011. Both applicants were convicted of the charges

against them by a majority of 10 to 2 and sentenced to four years imprisonment. But as a result of the events described in this

judgment, the applicants were admitted to bail by a different panel of this Court soon after their conviction.

The Circumstances

3. The background circumstances of this case are unusual, if not unique. On the afternoon and evening of the 2nd March, 2008 the

applicants were in the Red Cow Inn. The two men were in the company of a male friend of theirs, Daniel Lynch. They had met by

arrangement with the intention of socialising there. The brothers booked a room to stay overnight in the hotel. While in the Red Cow

Inn, the three men fell into the company of a group of women, including the complainant, C. M.

4. Daniel Lynch engaged in conversation with C.M. It appears that all the parties had consumed a great deal of alcohol. After a time,

Daniel Lynch and C.M decided to leave the company of their friends, and go to the bedroom which. Seamus Flanagan, the second

applicant, had booked earlier. C.M and Daniel Lynch presented themselves at the reception desk to get a key to the room. They were

told that the room had not been paid for. As Daniel Lynch had no money, he tried unsuccessfully to contact the applicants by mobile

phone. However, the complainant, C.M., decided to pay for the room and did so. She was provided with a key card. Both parties then

retired to Room 233, and engaged in consensual sexual activity, including vaginal and anal intercourse, and oral sex.

5. What happened afterwards lies at the centre of this appeal. Absent corroboration as to what happened in the hotel room, the

prosecution case substantially consisted of the word of one person against that of two others. This is to be seen in light of the fact

that what is alleged to have occurred, took place within a space of 90 seconds, in a time window, established by CCTV evidence, of

at most 4½ minutes, or perhaps very significantly less than that time span, in a hotel room adjoining other hotel rooms.

C.M.’s Evidence

6. C.M testified at the trial that, after a time, she and Daniel Lynch ordered room service. She told the jury she ordered a bottle of

white wine, a bottle of Bulmer's Cider and two vodka and Red Bulls. She told the jury that when the room service did not arrive, Daniel

Lynch went to leave the room to see what had happened. Her evidence was that, before either she herself, or Daniel Lynch, left the

room to get the drinks there was a knock on the door. She believed it was room service. Her testimony at the trial was that Daniel

Lynch answered the door, let the two applicants into the room, and very soon afterwards left the room in order to search for the

drinks.

7. The complainant’s evidence was that, after Daniel Lynch left, the second-named applicant, Seamus Flanagan, raped her vaginally

for less than one minute, and then anally for a matter of seconds. She testified that Eamon Flanagan, the first named applicant, then

raped her vaginally for a very short period of time.

Inconsistencies in the Complainant’s Evidence

8. For the purposes of this appeal, counsel for the applicants submitted a written document to this Court identifying inconsistencies in

the complainant’s testimony in Court. This raises the question as to whether the quality of the prosecution case was such that this

conviction was safe. What follows is not intended in any way to denigrate the witness, but rather to demonstrate the extent of the

prosecution case.

9. During the trial, the complainant conceded on cross-examination that she had told the gardaí that she and Daniel Lynch both

awaited room service in the bedroom having had consensual sex. In two statements given to the gardaí during the investigation,

however, she said that when the knock came on the door it was she herself who answered it, that both applicants were at the door,

and that Daniel Lynch was, at the time, still in the bedroom. However, by contrast to this statement, she, in fact, told the jury in her

evidence that it was Daniel Lynch, and not she, who had answered the bedroom door. C.M. also conceded that, subsequently, she

told a friend, H.B., who was one of the party downstairs, that it was she herself who answered the door. The complainant also gave a

series of differing accounts as to whether Daniel Lynch was in the room, or had left to get the drinks. In one interview the

complainant placed Daniel Lynch outside the room, and on his way to get the drinks, when the knock on the door occurred. In this

account, given to the gardaí during the investigation, she said that both applicants had anally raped her, although afterwards, in fact,

she testified that only one of the applicants, Seamus Flanagan, had committed that crime.

10. Again, by contrast to the accounts given to other investigating gardaí during the investigation, C.M. told a Garda Withero, that it

was Daniel Lynch who opened the door and let the applicants in the room. However, the complainant also apparently informed a

doctor who examined her in the Rotunda Hospital the day after the events that it was she herself who answered the door. On another

account, the complainant said that, when the knock on the door came, she was actually in the act of performing oral sex with Daniel

Lynch, and when the knock on the door came, both she and Daniel Lynch got up to answer the door, having fixed themselves up. She

informed her friend, Ms. B, who she met afterwards, that, by the time the knock on the door came, Daniel Lynch had already gone to

get the drinks.

Daniel Lynch’s Evidence

11. In what follows it is important to bear in mind that Daniel Lynch was proffered to the jury, as an apparently credible witness. One

of the questions which the Court must address is whether, through no fault of the prosecution, such a presentation was apparently in

a false light.

12. Daniel Lynch’s testimony at the trial was to the effect that, having had consensual sex, he told C.M. that he was leaving. He was

unaware that she had ordered drinks, as he had, in fact, left the bedroom and gone to the bathroom. His evidence was that, having

had sexual relations, he went to the toilet and that C.M. kept asking him to stay. His testimony was that at that stage he simply left

the room, and encountered the applicants as he went out the door and they entered the room. He denied being aware that C.M. had

telephoned room service and ordered the drinks. He said that as he left the room C.M. was right behind him at the door. There was no

information or evidence to the jury as to the precise circumstances in which Daniel Lynch came to give his statements to the gardaí,

or of his previous encounters with the gardaí, or the contents of any statements which the gardaí allegedly made to him in order to

induce him to make his evidence clearer or to place the applicants either at the door of the hotel room or inside the room itself.

Other Areas of Conflicting Evidence

13. There was apparently conflicting evidence at the trial in relation to whether a conversation took place between Daniel Lynch and

C. M. in relation to whether or not she was using contraception. C.M. denied that she had held any such conversation. There was an

apparent conflict also as to whether C.M. was fully or partly clothed, during the time they were having sex.

14. The very existence of these inconsistencies indicate that the prosecution evidence hinged, to a very great degree, on the

availability of credible corroborative evidence, other than CCTV evidence to which reference is made later in this judgment.

The Absence of Any Forensic Evidence Inculpating the Applicants

15. This was not, however, the only unusual aspect of the case. The complainant’s case was that both applicants had engaged in

apparently unprotected sexual contact with her. Forensic tests which were carried out, and swabs taken from C.M.’s body

afterwards, demonstrated clearly that she had, in fact, engaged in sexual relations with Daniel Lynch. However, there were no

forensic tests, either to establish that any physical contact had taken place between either of the applicants and the complainant, or

to negative such a possibility. No tests were carried out on the personal clothing, or on the persons of the applicants, despite the

fact that both applicants were interviewed by Detective Garda Marron in the same Room 233 at 12.15 a.m., some four hours after the

events in question were said to have occurred. The applicants had, obviously returned to the room later in the evening.

CCTV Evidence

16. The CCTV evidence in the case showed Daniel Lynch getting out of the lift to go to Room 233 at 20.00 hours. It showed the

applicants getting into the lift at 20.12.10. They are seen arriving at the reception desk at 20.05.33, leaving the desk, and returning

again to the desk at 20.10.44. The applicants then stood by the lifts from 20.10.53 until 20.12.10. Daniel Lynch is seen at 20.14

descending the staircase to the hotel foyer. At 20.19.36 the complainant is be seen exiting the lift in the foyer, having apparently left

Room 233, walked to the lift, and descended in the lift to the ground floor. There was no evidence to establish how long the

complainant waited for the lift, or whether the lift actually went to the second floor where Room 233 was situated.

Evidence of Recent Complaint

17. Evidence of fresh complaint is admissible to establish the consistency of a complainant’s testimony, but not as corroborating his or

her account. As to such complaints, there were other, more minor, inconsistencies in C.M.’s account of what happened afterwards.

The evidence was that the three women in her party were to be collected by P.W., who is the partner of A.B., one of the women.

The complainant, apparently having left Room 233, met A.B. and H.B., who were sisters, downstairs at the Red Cow Inn. They asked

Mr. P.W. to drive them to a house in a Dublin suburb. Insofar as there may have been inconsistencies in the narrative as to who

arranged P.W. to pick up the party, they are not directly material. It is noteworthy, however, that P.W. testified that, when he met

the two sisters, H.B. and A.B., he had suggested waiting for C.M. However, at that stage, they informed him that this would be a

pointless exercise, because she, (C.M.) had fallen into the company of another gentleman, and was unlikely to be returning home with

them. This cannot be easily reconciled with the fact that C.M. did, in fact, travel home with A.B. and H.B. The sisters testified at the

trial that when the complainant was in the car she was very quiet, subsequently commenced to shake, and was given a blanket. At

that stage she told them that she had been both vaginally and anally raped.

18. On the basis of the evidence which had been adduced, including Daniel Lynch’s apparently credible evidence, the trial judge

declined to grant a direction holding there was sufficient evidence to go to a jury. The centrality of Daniel Lynch’s evidence can be

gleaned from the fact that it was referred to in some detail by counsel for the prosecution in his closing speech. The jury deliberated

for some hours before convicting the applicants by a majority of 10:2. The case was then adjourned for sentence until the 27th June,

2011.

Events Between the Conviction and Sentencing

19. The trial, by that stage, had still not been completed, although it had reached the sentencing stage. On the adjourned date, 27th

June, 2011, Daniel Lynch, the main prosecution witness, repudiated the evidence which he had given earlier at the trial. In an

affidavit he swore that two members of An Garda Síochána, who had investigated the alleged offences, had pressurised him into

testifying in a particular way so as to incriminate the applicants. These developments were brought to the attention of counsel for

the Director of Public Prosecutions, and the trial judge, and the matter was then re-listed for sentence. When the matter came before

the Court on the 25th July, 2008, enquiries were still proceeding, and sentencing was adjourned to the 3rd October, 2011. On that

date, the prosecution confirmed that the allegations of impropriety against members of An Garda Síochána had been investigated, and

found to be without substance. By this time, both applicants had retained different legal advisors. The defence were provided with an

index of the statements taken during the course of the enquiry conducted by a Garda Detective Superintendent. As a matter of

ordinary procedure, as well as hearing evidence from the prosecuting member, Detective Garda Marren, there was also evidence in

mitigation, including evidence that both applicants were previously of good character. Both applicants were sentenced to four years

imprisonment to be served concurrently, but with the final 12 months on each count to be suspended. They were subsequently

admitted to bail by this Court.

A Central Issue

20. It is self-evident that Daniel Lynch’s role as a key prosecution witness is a critical point in the appeal. In an affidavit, he deposed

that his testimony at the trial had not been fully truthful. He said that it was, rather, a version of events, which he had felt

constrained to give by virtue of “pressure” on him. He perceived this pressure to be coming from the garda investigation team. During

the internal investigation, both of the principal gardaí involved, Detective Garda Marren and Detective Sergeant Declan Dunne (since

promoted to the rank of Inspector), expressed the view that Daniel Lynch was not telling the truth in relation to what had transpired

between themselves and himself; specifically at a meeting which took place in Downey’s Garage, Dublin Road, Portlaoise, on the 30th

April, 2008. Daniel Lynch swore that this meeting took place at the suggestion of the two gardaí. Both gardai strongly denied making

any such suggestion.

21. Daniel Lynch’s account to this Court, in his oral evidence, was that the garda investigation team arranged to meet him at

Downey’s Garage, Dublin Road, Portlaoise, on the 30th April, 2008. Superintendent Dennehy interviewed him for the purposes of the

internal investigation. Daniel Lynch informed the Superintendent that, when he met the investigating team at Downey’s Garage, he

had been threatened and pressurised, and that Detective Garda Marron and Detective Sergeant Declan Dunne sought to induce him

to place the applicants in the corridor immediately outside the door of Room 233. Daniel Lynch is recorded as saying to Detective

Superintendent Dennehy “Did I say I met them at the door in the first place, no. I said I met them down from the door. Keith

Marron put them at the door. I told Keith Marron that I had doubts if I ever met them, which he should have written down”. Daniel

Lynch said that Detective Sergeant Dunne proffered a notebook to him at Downey’s Garage where the Detective Sergeant made a

note as follows:

“… stated he met the two brothers at the door and they went into the room as he left.”

In his statement of intended evidence given on the 30th April, 2008 Mr. Daniel Lynch stated:

“When I opened the door I met [the applicants] at the door.”

At the trial, Daniel Lynch’s evidence reflected what he is reported as having said to the gardaí at Downey’s Garage Station. His sworn

account was:

“So, I just left, and as, like, I went to the door and I opened the door and … and … were coming through the door.”

The gist of Daniel Lynch’s evidence to this appeal can be found in his own words, to the effect that the two gardaí “were more or

less telling me what to say, putting words in my mouth, and I would have agreed to anything with such fear and shock, and when

Keith [Marron] and his partner got me to say what they wanted me to say they were happy”.

22. It is important to bear in mind that Daniel Lynch’s description of what transpired at Downey’s Garage was described by Detective

Sergeant Dunne as having been, simply, "a lie".

The Evidence at the Appeal

23. When the matter came first before this Court, Daniel Lynch was working abroad in Nigeria. He had, however, sworn an affidavit

which was available. As a matter of fair procedure it was necessary for him to be available for cross examination on this affidavit.

Arrangements were made for him to travel to Dublin. The Court further directed that the members of the Garda Siochana against

whom he had made allegations should swear affidavits. The Court sat for a special hearing to hear his evidence and that of the Gardai

involved. In his affidavit, sworn for this appeal, Daniel Lynch said:

“… . I say that I gave evidence at the hearing of the prosecutions and I am unhappy with the nature of the evidence

that I gave to the court at the hearing of the prosecutions in the following circumstances:

i. I say that I gave an initial statement at Newbridge Garda Station to the investigating detectives in which I gave

a summary account of my recollections of my movements on the night of the date of the alleged offences which

is the subject matter of the above prosecution.

ii. I was subsequently contacted by Detective Keith Marron of Clondalkin Garda Station and was asked to meet

Detective Marron and a colleague in Portlaoise for the purpose of clarification of the first statement, for further

questioning and making of a second statement.

iii. As requested by Detective Marron, I subsequently met him and a colleague in the forecourt of Downey’s Auto

Stop, Dublin Road, Portlaoise, Co. Laois.

iv. I confirm that Detective Marron told me at this meeting to sit in the rear of his vehicle and I was placed under

considerable emotional and psychological stress to make certain statements in my proposed second statement. In

particular, Detective Marron and his colleague indicated to me that I would be imprisoned for at least 7 years if I

did not clarify matters to their satisfaction. I was accused at this meeting of attempting to cover up for my

friends, being the defendants herein.

v. In particular, I was concerned to express my doubt due to a high level of intoxication on the day/night of the

alleged offences, in an amended statement regarding my reference in my earlier statement to meeting the

defendants in this matter during the period subsequent to my departure from their company at the

nightclub/function room of The Red Cow Inn, Rathcoole, Co. Dublin, and my ultimate departure from the

hotel/accommodation area of the same hotel later that evening.

vi. I say therefore that my indications in my two statements that I definitely met the two accused in the

hotel/accommodation portion of the Red Cow Hotel is incorrect, and I feel that I was unfairly pressurised not to

express the doubt which I had in that regard by Detective Marron and his colleague in my statements. I

appreciate that I could have expressed this doubt at the hearing of the trial, but I felt compounded to follow

verbatim the contents of my statement due to the circumstances in which I had made them.

I wish to express my regret at my failure to correct the contents of my statements at the trial of these matters, but I

wish to do so now fully appreciating the possible implications for myself. In this regard I wish to express my apologies to

the court.

I also wish to reaffirm the contents of this affidavit, as set out above, as of the date of swearing hereof …”

It is abundantly clear that none of this evidence was available either to the prosecution counsel, still less the defence counsel when

the matter was before the jury.

24. Detective Garda Keith Marron swore an affidavit for the appeal. He denied absolutely he, or any garda, had suggested the meeting

at Downey’s Garage. He swore that Inspector Declan Dunne and himself met Daniel Lynch by arrangement, and at his suggestion, on

the 30th April, 2008, at Downey’s Garage. Detective Garda Marron swore:

“Mr. [Daniel Lynch] seated himself in the rear of the official car and made a second written statement which is signed by

him following the statutory declaration being read over to him in the usual form. I say that I did not place [Daniel Lynch]

under any emotional or psychological stress to make any statement, I did not witness [Daniel Lynch] being placed any

such emotional or psychological stress by Inspector Declan Dunne and his second statement was a free and voluntary

account.

I say that during the taking of the second statement on the 30th April, 2008, [Daniel Lynch] made further comments

which he did not wish to have included in his written statement. These comments were noted in writing by Inspector

Declan Dunne and were signed by [Daniel Lynch].”

He swore:

“ I further met [Daniel Lynch] on the 15th day of April, 2011 at a Filling Station in Ballyroan, Co. Laois, and served him

with a witness order in respect of the trial hearing.”

His testimony was that:

“ [Daniel Lynch] was never pressurised not to express a doubt.”

and that

“at no time up to and including the trial of this matter did [Daniel Lynch] ever express to me a doubt as to the evidence

provided by him.

I say and believe that I did not threaten, induce or trick [Daniel Lynch] in any way. I would further say that I never

threatened [Daniel Lynch] with a seven year sentence.”

(Mr. Lynch’s name has been placed in brackets for clarity, although the reference in the statements was sometimes to Mr. Lynch as

“he” or “him”)

Inspector Dunne swore an affidavit on the 3rd June, 2014 to a similar effect. However, he added that he also met Daniel Lynch on the

13th May, 2008 at Athy Garda Station by arrangement for the purpose of taking a blood sample from him. This sample was given

voluntarily, and Daniel Lynch had expressed no doubt to him then or afterwards about what his evidence would be.

25. In this appeal, Daniel Lynch admitted in cross-examination on his affidavit, that, on the evening, he had had a lot of drink,

perhaps 10 to 12 pints. He accepted that his ability to recollect events was effected by the consumption of alcohol. At first, he did

not admit having taken any other form of intoxicant or drugs on the night in question. However, later in his testimony, he admitted

that he had been self-medicating with un-prescribed anti-depressants at the time. These had been obtained from a friend. He said

the events on the evening in question were the culmination of a period of some 48 hours, when he had been consistently drinking a

great deal of alcohol. He sought to account for having made statements to An Garda Síochána on the 4th March, 2008 by saying that

his recollection was clouded and that he had had a lot of drink taken. He accepted that he had a “conscience that activated

sometimes and then hardened at another time”. He asserted that the garda statement that it was he, who decided to meet in the

petrol station in Portlaoise, as being “lies”.

26. It also emerged, for the first time, that Daniel Lynch had himself been tried and convicted on the 11th, 12th and 13th November,

2009 arising from a fatal accident which befell an employee of his in construction work. He was sentenced on one of the counts to 3

months imprisonment, suspended for two years on entering into a bond to keep the peace and be of good behaviour.

27. Daniel Lynch was asked why he had claimed that the gardaí had made a threat of a seven year prison sentence. In response he

told this Court the gardaí had frightened him and that he was told that rape was a serious offence. He formed the impression that he

might be charged with the offence, and that in order to threaten him the gardaí were levelling the possibility of his being also charged

with rape to. He testified that at Downey’s Garage the two gardaí had produced a bag containing a tube of lubricant used for sexual

activity. The gardaí denied they had done this. Daniel Lynch testified that their denial was “pure utter lies”. It should be said,

however, that one of the gardaí, Detective Garda Marron, later accepted in evidence that the lubricant might have been produced so

as to ascertain whether it was Daniel Lynch’s or not. Mr. Lynch’s testimony before this Court was that he had never seen the tube

before, but he confirmed he owned a cigarette lighter which he said was also produced to him. He was unable to recollect whether

the gardaí had produced a cigarette carton or not. In essence, his testimony was that he had given the evidence in the way he did

because he felt that it was “what he had to do”.

28. He was specifically asked in the appeal:

“Q. … is it your evidence, … that the version of events involving the presence, position or movement of [S.F. and E.F.]

in relation to the door and the room was wrong in the first place?

A. Yes.

Q. Is that correct?

A. Yes, that's correct.”

29. Setting aside for the moment the relevance of Daniel Lynch’s own evidence to this Court, a significant degree of the other

material emerged which had not been available to the defence during the jury phase of the trial. This included the true extent of

Daniel Lynch’s drinking in the 48 hours beforehand, his self-medication, the circumstances of his own trial and conviction for criminal

offences, and what he alleged had transpired at Downey’s Garage. Had it been known, all of this would have been material which

should have been disclosed to the defence. Neither the applicants, nor their legal advisors, had any contact with Daniel Lynch prior to

the trial. The first occasion when the applicants’ counsel had the opportunity to explore these relevant and material matters with

Daniel Lynch occurred at the appeal.

30. The Court also had the opportunity of assessing the credibility, both of Detective Garda Marron and Detective Sergeant (now

Inspector) Dunne. Both were credible witnesses.

31. Counsel for the Director did not concede the circumstances were such as to render the conviction unsafe. This stance was

strongly influenced by the fact that Daniel Lynch’s testimony on the applicants’ location went unchallenged at the trial. Counsel for

the Director of Public Prosecutions stressed to this Court, as he had in his closing speech to the jury, that counsel for the applicants

at the trial had not contested that Daniel Lynch had met the two applicants going in to the room. Defence counsel did, indeed, say

that the applicants had no recollection of this, and insofar as the complainant may have been in the room and left, did not recall that

being so. Defence counsel added that, if something had happened, the applicants had no reason or cause to recall it. The first time

the applicants had been asked to recall anything at the end of a long period of drinking was at 1 o’clock in the morning, when awoken

from sleep by the gardai.

32. Considered in context, the Court is of the view that these remarks by defence counsel were not an acceptance that what Daniel

Lynch said at the trial was true, but rather that the applicants had no recollection of the event which Daniel Lynch now says was

incorrectly portrayed.

33. For the reasons now outlined, this Court was left to conclude that the conviction which had taken place was an unsafe one.

The Law

34. The function of the Court of Criminal Appeal is to consider the conduct of the trial in order to determine whether or not the trial

was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any

rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, to

consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to

adopt all findings of fact, subject to the admonitions in the passages cited above (The People (DPP) v. Madden [1977] I.R. 336 at

340). The Court, does not operate on the basis of a “lurking doubt” that justice had not been done (see R v. Cooper [1969] 1 QB

267, at 271). But this description of function does not derogate from the overriding duty of the Court to ensure that a conviction is

safe. This is the test applied in this case. As a matter of policy, this Court must exercise extreme caution when applications are made

to adduce new evidence after a trial before a judge and jury, which was, on the face of it, conducted in accordance with fair

procedures. This judgment seeks to outline and apply the tests generally applicable in such an application. Suffice it to say that the

test is a rigorous one, and the Court must carefully scrutinise the reasons why such testimony was not available or given at the trial.

35. Section 33 of the Court of Justice Act, 1924 allows fresh evidence to be introduced on appeal. Section 3(3)(a) of the Criminal

Procedure Act, 1993 provides that, when hearing an appeal, the court may “where the appeal is based on new or additional evidence,

direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for

the purpose of determining whether further evidence ought to be adduced”.

36. As is the case with the Supreme Court in civil matters, this Court leans against the admission of such evidence. Such fresh

evidence can only be justified by special circumstances. Evidence will not be admitted if it was available at the trial but an applicant

deliberately refrained from using it (Attorney General v. McGahan [1927] 1 I.R. 503; People (DPP) v. McDonagh (CCA, Unreported,

22nd May, 2000); People (DPP) v. Barr (Ex tempore, 2nd March, 1992); People (DPP) v. Flynn (Court of Criminal Appeal, Unreported,

9th December, 2002). In general, new evidence will not be admitted for the purpose of allowing the applicant to make a new case, or

a case inconsistent with that made at trial (Attorney General v. McGahan [1927] 1 I.R. 503; People (DPP) v. Lee [2004] 4 I.R. 166;

People (DPP) v. Gamble [2009] IECCA 19). In order to justify the admission of new evidence, it will generally be necessary to explain

why competent lawyers at the trial did not raise a point sought to be raised in the appeal. In general, the Court should have available

to it evidence from the relevant participants, explaining why the evidence was not adduced at trial. A court will exercise special care

in circumstances where, simply, a prosecution witness, retrospectively, and after the trial, thinks himself to have given unreliable

evidence, or wishes to so portray himself.

Similarities to DPP v. Redmond [2004] ECCA

37. In one sense, the circumstances of this case bear a degree of resemblance to those which arose in DPP v. Redmond [2004] ECCA.

There, during the trial, but after a prosecution witness had been cross-examined, the defence became aware that additional material,

relevant to the cross-examination of that prosecution witness, had subsequently become available. This Court, having admitted the

evidence, allowed the appeal.

Admission of New Evidence

38. The principles governing the admission of new evidence are identified by of the Supreme Court in People (DPP) v. O’Regan [2007] 3

I.R. 805, at 826 which referred to the previous judgment of The People (DPP) v. Willoughby [2005] IECCA 4 (The Willoughby

Principles). In O’Regan, the Supreme Court pronounced:

“(1) 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.

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

have been known or acquired at the time of the trial.

(3) It must be evidence which is credible and which might have a material and important influence on the result of

the case.

(4) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial

and not in isolation.”

39. It is clear that the proviso of “exceptional circumstances” contained in the first of the principles outlined above is intended to

prevent excessive rigidity in application. The exceptional circumstances must be clear and cogent. The Court will carefully assess the

materiality of the new evidence, not in isolation, but by reference to all the other evidence adduced at the trial. But the application

of the principles is not to be seen as “displacing or negativing in any way the overarching requirement that justice be seen to be

done having regard to all the circumstances and facts of the particular case.” (O’Regan [2007] 3 I.R. 805, at 827). Thus, it is

unnecessary to assert or establish unreasonable, irrational, illogical or negligent conduct of the defence at the trial. There is no such

evidence on these questions. Neither the defence nor the prosecution were, or could reasonably have been, aware of this additional

and new evidence.

40. While the requirement for “exceptional circumstances” may be seen as setting the bar at a fairly high level, the policy

considerations which arise in such instances demand no less. The entire criminal justice system would be incapable of functioning if

every trial was subject to a re-run on new grounds, or new evidence in an appellate court. An appeal court must be acutely alive to

the possibility of a post-trial manipulation of a prosecution witness. As Kearns J. pointed out on behalf of the Supreme Court in DPP v.

O’Regan:

“It is entirely reasonable to insist upon a "due diligence" test in respect of evidence which was known to exist, or which

could reasonably have been obtained at the time of trial but was not.”

Application of the Principles in O’Regan and Redmond

41. There is no evidence that Daniel Lynch was manipulated by the applicants or anyone else. The instant case has a number of other

very singular, “exceptional” features. The prosecution case hinged, very significantly indeed, on Daniel Lynch’s corroboration

evidence. The complainant’s own evidence contained a number of inconsistencies. Daniel Lynch’s evidence purporting to place the

two applicants, very near, or actually in Room 233, was not contested at the trial. The defence case, as put by counsel at the trial,

was that even if the applicants and complainant met, no sexual contact took place. However, the omission to contest the point of

the alleged encounter at the door, which would normally be a matter of importance, is now to be seen in the context of Daniel

Lynch’s affidavit produced at the trial, but after conviction, and in light of the entirety of his evidence before this Court. It is clear

that he does not stand over the testimony which he gave at the trial. It is clear, indeed “credible”, that the circumstances of the

taking of crucial evidence from Daniel Lynch at Downey’s Garage could, in the light of the information which has emerged since, have

been the subject of a serious challenge at the trial; had that information been available to the defence. The new information takes a

number of forms: first, there is Daniel Lynch’s repudiation of his own evidence; then, the additional information concerning the

circumstances of his interaction with members of An Garda Síochána; there is also, the relevant additional material regarding the

extent of his inebriation on the night, his self-medication, and his stated fear derived from what he claims was said by the gardai, to

the effect that he might be “in the frame” for a seven year sentence. This is, therefore, not only a case which involves a sworn

affidavit from a prosecution witness controverting evidence which he gave at the trial, but also one where new and relevant material

evidence has emerged which could not reasonably have been known or procured by the accused or their counsel.

42. The Court must have regard to other consequences which flow from Mr. Lynch’s evidence. As a consequence of his raising these

issues, a garda investigation followed. The two members of An Garda Síochána identified earlier had their conduct questioned by a

Garda Superintendent. They have been exonerated from misconduct. There is no indication that there was any want of due diligence

in preparing the defence of this case. Daniel Lynch’s evidence went essentially unchallenged in a number of areas, something that

inevitably would not have occurred, had the defence team, then retained, been apprised of the material which is now available. It is

now very clear, that the trial and conviction, through no fault of either counsel for the prosecution or counsel for the defence, or the

trial judge, was unsatisfactory and unsafe.

The Range of Orders Which Might be Made

43. In a range of circumstances, such as this, a court might consider the possibility of quashing the verdict of the trial court and

remitting the matter for retrial. In general, this Court would remark that a retrial will not necessarily be ordered because the evidence

from a prosecution witness is different from that given at the trial itself (R v. Flower [1966] 1 Q.B. 146). An appeal court may, and no

doubt ordinarily will, simply quash the conviction, and not order a retrial, if it is satisfied not only that the new evidence is true, but

also it is conclusive of the appeal. If an appeal court is satisfied that the new evidence is true, but not that it is conclusive, it might,

on the other hand, order a retrial. But an appeal court, even if not satisfied the evidence was true, might, nevertheless order a

retrial, if it thought that such evidence might be accepted and believed by a jury. If, on the other hand, a court positively disbelieves

the additional evidence, a retrial will not generally be ordered, because the additional evidence is worthless, and the court will

proceed to deal with the appeal as though no additional evidence had been tendered (see R v. Flower (above); R v. Collins [1950] 34

Criminal Appeal Reports 146). But the circumstances in the present case are unusual. We are not only dealing with different and

conflicting evidence from that given at trial by the main prosecution corroboration witness, but also new material which would

undoubtedly have been disclosed to the defence – and been made the subject of close cross-examination had it been known. The

conviction is unsafe. In the light of what has occurred, counsel for the Director has, properly, indicated during the course of

submissions that, in the event that the Court concluded that the conviction was unsafe, there would be no application in this case

for a retrial.

44. For the reasons outlined above, therefore, the Court was convinced that the conviction which resulted in this appeal was, in fact,

unsafe. The resultant order has already been made.