Court of Criminal Appeal allows appeal and directs retrial for forgery charges despite jury document error.

THE COURT OF CRIMINAL APPEAL

[Record Nos: 50 & 65/2013]

Clarke J.

Moriarty J.

Cross J.

Between/

The Director of Public Prosecutions

Prosecutor/Respondent

and

Noel Hayes and William O’Leary

Accused/Appellants

Judgment of the Court delivered by Mr. Justice Clarke on the 31st January, 2014.

1. Introduction

1.1 The question which the Court is now required to answer is whether it should direct a retrial of the case against both of the

accused/appellants (respectively “Mr. Hayes” and “Mr. O’Leary”) on charges relating to the alleged forging of a will. Both Mr. Hayes

and Mr. O’Leary were convicted at Wexford Circuit Court on the 29th January, 2013, of forgery contrary to s. 2 of the Forgery Act

1913 arising out of an allegation that they had forged a document purporting to be a will in the name of Matthew Hayes (a first cousin

once removed of Noel Hayes) between the 25th December, 1998, and the 5th January, 1999.

1.2. It transpired at a very early stage that a document had been included in the papers which were allowed go into the jury room

but which did not form part of the evidence in the case. In addition, there was evidence to suggest that the jury had had regard to

that document. In those circumstances, as early as the sentencing hearing which occurred subsequent to the conviction of Mr.

Hayes and Mr. O’Leary, counsel for the prosecutor/respondent (“the DPP”) indicated that the DPP accepted that the respective

convictions would ultimately require to be set aside.

1.3. Mr. Hayes and Mr. O’Leary then appealed against their respective convictions. At the instigation of the DPP, the appeals were

listed for hearing before this Court on Monday, 16th December, 2013, at which hearing it was indicated on behalf of the DPP that

there would be no opposition to the appeal succeeding. However, it was proposed on behalf of the DPP that it would be appropriate

for the Court to exercise its power to order a retrial. It was indicated on behalf of both Mr. Hayes and Mr. O’Leary that they would

oppose any such direction.

1.4. In those circumstances the Court allowed the appeal and set aside the respective convictions. As one of the parties was not, on

that occasion, ready to argue the issue in respect of a retrial, the matter was put back to the 15th January, 2014, to allow a hearing

on that question. This judgment is directed to the issues which arose at that hearing. The Court now turns to the arguments raised.

2. The Argument on behalf of Mr. Hayes

2.1. Counsel for Mr. Hayes placed reliance on The People (at the suit of the Attorney General) v. Griffin [1974] 1 I.R. 416 in which the

Supreme Court held that there was no jurisdiction to order a retrial under the legislation then pertaining (being s. 5 of the Courts of

Justice Act 1928 (“the 1928 Act”)) in circumstances where an appeal had been allowed by virtue of the failure of the prosecution to

lead an essential piece of evidence. In substance, the problem was that the prosecution had failed to place before the court evidence

of a regulation made under s. 14 of the Dangerous Drugs Act 1934 which was an essential proof in that case. It obviously would have

been possible, at any retrial, for the prosecution to, as it were, mend its hand and prove the relevant regulations. However, Henchy

J., speaking for the Supreme Court, took the view that no retrial should be ordered.

2.2. In so doing Henchy J., at pp. 419 and 420, said the following:

“While there are many examples of the unqualified quashing of convictions where evidential proofs were wanting because

of the prosecution's default, there seems to be no recorded case where a retrial was ordered in such circumstances.

The reason would appear to be that s. 5, sub-s. 1(b ), of the Act of 1928 was passed to enable the Court of Criminal

Appeal to order a retrial when the quashed conviction resulted not from the inadequacy of the prosecution case but

from a faulty trial (e.g. ,misdirection, inadmissible evidence, procedural irregularity) which, but for such fault, might

have led to a supportable conviction. So far as I know, the section has never hitherto been judicially treated as

authorising a retrial for the purpose of enabling the prosecution to mend its hand by presenting evidence at the retrial

which ought reasonably to have been given at the first trial — I use the word "reasonably" because of the decision in

The Attorney General v. Cleary.”

2.3. In conclusion Henchy J. said the following at p. 420:

“In my opinion, when a conviction in quashed because the prosecution failed to tender the evidence necessary to sustain

a conviction, the accused should not be subjected to the worry of a retrial in which the prosecution could mend its

hand, unless there is clear statutory authority for such a course. Section 5 of the Act of 1928 provides no such

authority.”

2.4. Counsel for Mr. Hayes argued that this case, although accepting that it was not identical, was nonetheless analogous to Griffin.

It was said that what led to the necessity to allow the appeal in this case was an error on the part of the prosecution in allowing a

document which was not properly before the court to be given to the jury. On that basis it was argued that a retrial would not be

appropriate.

2.5. It is, of course, the case that the situation is now governed by more modern legislation in the form of s. 3 of the Criminal

Procedure Act 1993, as opposed to the 1928 Act which applied when Griffin was decided. However, counsel argued that there was no

material difference in the respective legislative provisions.

2.6. In addition, counsel indicated that he would place reliance on an argument concerning lapse of time which was put forward by

counsel for Mr. O’Leary.

3. The Argument on behalf of Mr. O’Leary

3.1. Counsel for Mr. O’Leary argued that the true test was a broad based consideration of where the interests of justice lie. It was

argued that, in circumstances where the setting aside of a conviction derived from a finding by this Court or, indeed, the Supreme

Court, that there was insufficient admissible evidence before the trial court to sustain a conviction, a retrial could not be ordered.

This was so, it was said, even if there was a reasonable basis for believing that the prosecution might be able to mend its hand on a

retrial (following Griffin).

3.2. However, it was suggested that even if there was, at least arguably, sufficient evidence tendered at the original trial which was

potentially available to sustain a conviction at a retrial, the court could take into account a wide range of factors in determining

whether a retrial should be ordered. Attention was drawn to The People v. Cagney [2008] 2 I.R. 111, where the Supreme Court, while

quashing a conviction, refused to order a retrial taking into account, amongst other things, as Hardiman J. put it at p. 131, “the fact

that it is now more than seven years since the tragic incident at Portobello Bridge, the general good character of the accused and

the fact that one of them, as the court was informed by counsel for the first applicant, without contradiction, has in the meantime

suffered devastating injuries in a road traffic accident, I would not order a retrial.”

3.3. On that basis, counsel argued that the Court could take into account a wide range of circumstances which might legitimately be

said to impact on where the justice of the case lay. Of relevance to this case, it was said that lapse of time was such a feature. In

that context reliance was placed on the fact that the events which constitute the alleged offence occurred at the end of 1998 or the

beginning of 1999 and, thus, 15 years ago. It would appear from the evidence, principally that of a Mr. Charles O’Leary, a brother of

Mr. O’Leary, and himself an admitted participant in the alleged forgery, that Mr. Charles O’Leary had first gone to the authorities in

the latter part of 2007 admitting his own wrongdoing and alleging participation in that wrongdoing on the part of both Mr. Hayes and

Mr. O’Leary. Both Mr. Hayes and Mr. O’Leary have, therefore, been involved in the criminal process for over 5 years and it is likely to

be at least 6 years from their initial involvement before any retrial could take place. It was argued that this was a weighty factor,

when coupled with the overall length of time which has elapsed since the alleged offence occurred, which ought lie in favour of the

Court not directing a retrial. As pointed out earlier, this lapse of time issue was also relied on on behalf of Mr. Hayes.

3.4. However, an additional point was made in the case of Mr. O’Leary. Counsel drew attention to the fact that the case made at trial

on behalf of the DPP against Mr. O’Leary relied principally on the evidence of Mr. O’Leary’s brother. There was evidence of deep

divisions, arising out of previous business arrangements, between the two brothers. In addition, attention was drawn at the trial to

four specified occasions on which Mr. O’Leary’s brother had made comments in relation to the offence (not formal statements to

prosecuting authorities but statements to third parties) in which he did not implicate his brother but did implicate Mr. Hayes.

3.5. In addition, attention was drawn to the fact that a handwriting expert called on behalf of the prosecution had conceded under

cross-examination that there was a reasonable possibility that what was said to be the forged witnessing signature placed on the will

by Mr. O’Leary was not in fact his handwriting. On that basis the trial judge had directed the jury that Mr. O’Leary was entitled to the

benefit of the doubt in respect of that evidence.

3.6. In the light of all of those circumstances, two alternative arguments were put forward on behalf of Mr. O’Leary. First, it was said

that there was, in reality, no real case remaining against him in the light of the evidence of the handwriting expert and the direction

of the trial judge to which reference has been made. Second, and as a fall back position, it was said that even if there was a

sufficient case which might arguably be allowed go to the jury on a retrial, what was said to be the weakness of that case was a

factor which should be weighed in the overall balance.

4. The Argument on behalf of the DPP

4.1 Counsel for the DPP suggested that Griffin had no application to the facts of this case. Counsel drew attention to that part of the

passage of the judgment of Henchy J. in Griffin (already cited) in which reference was made to a distinction between the quashing of

a conviction resulting from, on the one hand, an inadequacy of the prosecution case and, on the other hand, what was described as

a faulty trial. Examples of such a faulty trial were given by Henchy J. by reference to misdirection, inadmissible evidence and

procedural irregularity. It was argued on behalf of the DPP that what happened in this case was within that later category, being a

procedural irregularity whereby a document not part of the evidence had been handed to the jury. Counsel argued that there was

sufficient evidence at the trial to go to the jury which could have permitted the jury to convict in a sustainable fashion were it not for

the unfortunate mishap in a document being allowed into the jury’s hands which they should not have received. On that basis it was

argued that Griffin had no application to this case.

4.2 Counsel for the DPP agreed with counsel for Mr. O’Leary that the test was a broad one from which the Court was entitled to take

into account any factor which could legitimately be said to influence where the justice of the case lay. Counsel did draw attention to

the fact (in the context of the point made on behalf of Mr. O’Leary that no mention had been made by his brother implicating him (as

opposed to Mr. Hayes) when he made four earlier comments relevant to the issues in the case) that there had been a fifth occasion

when, in advance of his approach to the authorities, Mr. O’Leary’s brother had, according to the evidence, implicated Mr. O’Leary.

Counsel argued that while all of the points referred to on behalf of Mr. O’Leary were points which could legitimately be urged on a jury

who would have to consider whether it accepted that Mr. O’Leary’s brother’s evidence, coupled with such other evidence as there

was, established the case against Mr. O’Leary beyond reasonable doubt, nonetheless it was, it was said, a matter for a jury and not a

matter which should weigh significantly in the balance in deciding whether to direct a retrial.

4.3 So far as lapse of time is concerned, it was pointed out that no allegation of formal prejudice of a specific variety had been made.

It was said that the delay in the trial coming on for initial hearing was attributed to the backlog of cases in the Wexford Circuit

Criminal Court. It was indicated that, as soon as the problem which has led to the quashing of the convictions had been identified,

the DPP had made clear that there would be no opposition to the quashing of the respective convictions, so that, it was argued, if

any delay was to be attributed in respect of the last year (from the time of the trial to date) same lay more on Mr. O’Leary and Mr.

Hayes who could, it was said, have sought, as the DPP ultimately sought, an expedited hearing before this Court on the basis that

there would be no opposition from the DPP to the quashing of the convictions.

4.4 In addition, counsel urged that a factor, to which it was said significant weight ought be attached, which was relevant on the

facts of this case, was the seriousness of the offence with which both Mr. O’Leary and Mr. Hayes stand charged. If established, it

was said that the offence involved seriously dishonest conduct as a result of which the true beneficiary of a significant estate had,

by forgery, been deprived of a significant and valuable legitimate entitlement. It was argued that this factor should weigh heavily in

favour of a retrial.

5. Discussion

5.1 The Court proposes to deal with the point raised on behalf of Mr. Hayes (placing reliance on Griffin) first. On this point, the Court

accepts the argument put forward on behalf of the DPP. The principle established in Griffin is that a conviction which is quashed, on

the basis that there was not, at the time of the trial, sufficient admissible evidence before the court to ground a conviction, should

not give rise to a retrial. In substance, the point is that the quashing of a conviction on that basis amounts to a finding that the

accused should have been acquitted. At the time of the judgment in Griffin there was, of course, no possibility of a further trial after

acquittal. On that basis directing a retrial of an accused who ought to have been acquitted would have been patently unfair. It is

now the case that there are limited circumstances where, under the Criminal Procedure Act 2010, the DPP may apply for a retrial

order after acquittal, either in the light of new and compelling evidence (see s. 8) or a tainted trial (see s. 9). Whether the

jurisprudence derived from Griffin may need to be revisited insofar as it relates to those limited circumstances is a matter to be

decided in a case when that issue specifically arises on the facts.

5.2. However, the question of exceptions to Griffin only arises if the underlying principle behind Griffin applies in the first place, that is

that the accused should, on the basis of the finding of this Court, have been acquitted at trial. However, that situation does not

pertain here. It can not be said that either Mr. O’Leary or Mr. Hayes ought necessarily have been acquitted. All that can be said is

that their conviction is unsafe because the jury was allowed to see a document which was not part of the evidence and, it may be

inferred, placed some reliance on that document. That does not mean that, even had the document in question not been allowed into

the jury room, the jury might not nonetheless have properly convicted. In those circumstances, the Court rejects the ground of

appeal put forward on behalf of Mr. Hayes placing reliance on Griffin.

5.4. The Court agrees with both counsel for Mr. O’Leary and counsel for the DPP that the test is a broad based test whereby the

Court is entitled to take into account a range of factors in determining where the interests of justice lie. It is, of course, the case

that, on the authority of Griffin, the jurisdiction to order a retrial does not arise if the conclusion of this Court on appeal is that the

accused ought necessarily have been acquitted on the evidence brought forward at the trial. However, assuming, as is the case here,

that not to be the case, then a broad range of factors can be taken into account in determining whether the justice of the case

requires that there be a retrial.

5.5. It is next necessary to turn to the case made on behalf of Mr. O’Leary which seeks to suggest that the remaining evidence

against him is insufficient to warrant a retrial. The Court is satisfied that this argument cannot be sustained. It is true that the

relevant handwriting expert agreed with counsel for Mr. O’Leary at the trial that there was a possibility that the relevant handwriting

on the will which was attributed to Mr. O’Leary was not his. Both counsel agreed that the direction of the trial judge which required

the jury to give Mr. O’Leary the benefit of the doubt in respect of that evidence was correct. However, the jury also had the benefit

of the evidence of Mr. O’Leary’s brother which was to the effect that Mr. O’Leary had signed as a purported witness and, thus, was a

party to the alleged forgery. The fact that a handwriting expert cannot say, as a matter of expert evidence, that such eye witness

evidence is necessarily correct does not take away from the fact that it remains evidence against Mr. O’Leary. It is a matter for a

jury to decide, on the basis of the evidence of Mr. O’Leary’s brother, such handwriting expert evidence as they may have before them

and, indeed, any other relevant evidence, whether they accept that it has been established beyond reasonable doubt that Mr.

O’Leary did sign the document in the manner alleged and was, thus, part of a forgery. The fact that a handwriting expert cannot say

that he is certain that the writing is that of Mr. O’Leary, and that the trial judge properly directed the jury to give Mr. O’Leary the

benefit of the doubt in respect of that evidence, does not necessarily lead to the conclusion that it is not possible that a jury,

properly directed, might not nonetheless conclude on all the evidence that Mr. O’Leary was guilty as charged.

5.6. It follows, in the Court’s view, that this is not, therefore, the sort of case where a retrial could not be directed because there

was insufficient evidence against Mr. O’Leary before the trial court to sustain a conviction. It is at least arguable that, if the same

evidence is presented again to a jury at a retrial, a jury properly directed could convict. The Court will turn shortly to the question of

whether what is said to be the weakness of the evidence against Mr. O’Leary, deriving from the same analysis, is, nonetheless, a

factor to be taken into account in the overall balance.

5.7. The Court agrees with counsel for the DPP that the seriousness of the offence in question is a factor to be taken into account.

Furthermore, it is clear that lapse of time can, on the authority of Cagney, also be a factor to be weighed in the balance. In

substance, therefore, what this Court is required to do on the facts of this case is to weigh in the balance the seriousness of the

offence, the lapse of time, and, possibly, insofar as Mr. O’Leary’s case only is concerned, the issues raised on his behalf concerning

what is said to be the relative weakness of the case against him.

5.8. The Court proposes to deal with the final point first. It does need to be noted, in that context, that, despite the evidence given

by the handwriting expert to which reference has already been made, no application for a direction was made at the trial. Likewise,

for the reasons already analysed, this Court is not satisfied that it has been shown that there is no adequate case remaining against

Mr. O’Leary such that would render it unfair to direct a retrial. Insofar as points are made which suggest that there might be a basis

for challenging the credibility of Mr. O’Leary’s brother (on whose evidence the case against him largely rests) then these are matters

which are quintessentially an issue for a jury to consider. It would not, in those circumstances, be appropriate for this Court to place

any weight on those points in considering whether to direct a retrial. In all the circumstances of this case, the Court is not persuaded

that the question of the strength of the case which might now be expected to proceed against Mr. O’Leary is a factor to which any

weight should be attached in the overall assessment of the question as to whether there should be a retrial.

5.9. That leaves the question of delay or lapse of time which is relied on both by Mr. Hayes and Mr. O’Leary. It is true that there has

been a relatively lengthy lapse of time between the events which are said to give rise to the offences in this case and any likely date

on which a retrial, if directed, would occur. However, that lapse of time has to be seen in context. If it be true that these offences

were actually committed, then they are, of their nature, covert offences. Covert offences only come to light when information

concerning them becomes available to investigating and prosecuting authorities. Frequently, that will only occur when someone

involved in the covert activity, for whatever reason, breaks ranks. The Court does not, therefore, see that the lapse of time up to

the point where Mr. O’Leary’s brother went to the authorities is really of any great weight. Next, it does have to be acknowledged, as

counsel for the DPP argued, that, given that the evidence of Mr. O’Leary’s brother was vital to the case against both Mr. Hayes and

Mr. O’Leary, it was necessary that the criminal process in respect of Mr. O’Leary’s brother be completed (including sentence) before

these trials could go ahead. That process took until 2010. Thereafter the trial occurred with reasonable expedition having regard to

the heavy case load which the Circuit Criminal Court has to contend with. No real blame can be attached for any delay between the

original trial and the likely date of any retrial if this Court should direct one.

5.10. It follows that this is not a case where any material or significant blame can attach to either the prosecuting authorities or the

courts system concerning lapse of time. It should be said that this Court is of the view that lapse of time, insofar as it may be a

factor in determining whether it is in the interests of justice to direct a retrial, should not necessarily be considered in quite the same

way as delay in the context of an application to prohibit a trial. It may be that lapse of time, in the circumstances (including any

established prejudice) of a particular case, can properly be taken into account in the balance as to whether a retrial should be

directed even where the lapse of time and other circumstances concerned could not justify the prohibition of the trial. It should be

emphasised that prejudice will always be an important factor and that a level of prejudice which might fall short of that which could

justify prohibition may nonetheless be a weighty factor in considering where the balance of justice lies when considering whether to

direct a retrial. Clearly if, in all the circumstances, lapse of time and the circumstances giving rise to it, were such as would justify

the prohibition of a trial, then a retrial could not be directed.

5.11. However, for the reasons already analysed, this Court is not satisfied that it has been established that there is any significant

or material blame to be attached in respect of any lapse of time. Likewise, no specific prejudice has been identified. Some weight

does, in the overall balance, however, have to be attached to the lapse of time with which this Court is concerned. For the reasons

identified earlier, however, the Court is not satisfied that the weight to be attached, in all the circumstances of this case, to lapse of

time is particularly strong.

5.12. The Court is also of the view that some assistance can be gained by analogy from the practice which applies in relation to a

retrial following a disagreement by the jury. The Court is mindful that the analogy is far from complete. A disagreement by the jury is

no one’s fault. Likewise, a person who has been the subject of two disagreements by a jury in successive trials can make the

reasonable point that two separate juries have failed to be satisfied, by the requisite majority, of their guilt beyond reasonable doubt.

These are all distinguishing factors. However, although by no means a rule of law, it is frequently said that, in an ordinary case, a first

retrial after an acquittal may well occur although there may be grounds for suggesting that a second retrial following two

disagreements should not. The underlying principle is, perhaps, that it is necessary to place due weight on the public interest in a final

decision as to guilt or innocence being made on the merits by a jury (or in an appropriate case by a judge giving a direction to the

jury). That value is not absolute. There may be circumstances where it is outweighed by other considerations. The accused who has

been the subject of two disagreements may well be able to argue that the interests of justice do not require a third trial. However, it

does suggest that the courts should, at least in very general terms, lean in favour of adopting measures which allow the merits of the

question of an accused’s guilt or innocence to be determined in the ordinary way by the criminal process. That will be so particularly

where, as here, the allegations against the accused are, if true, of a serious variety. There is, in such cases, a significant public

interest in a sustainable decision on the merits being reached in the ordinary course of the criminal process as to whether the

accused is guilty or not guilty of the serious offences as charged.

5.13. That there may, on the facts of an individual case, be sufficiently weighty countervailing factors to require, even in the case of

serious offences, that there not be a retrial cannot be doubted. Equally it seems to this Court that, again particularly in the context

of serious alleged offences, the countervailing factors need to be weighty. For the reasons already analysed, this Court is not

satisfied that there are sufficiently weighty countervailing factors in this case as ought lead the Court to conclude that the overall

interests of justice require that there not be a retrial.

6. Conclusions

6.1. In all those circumstances, this Court does not feel that the arguments put forward, either on behalf of Mr. Hayes or Mr. O’Leary,

to the effect that a retrial should not be directed by virtue of the circumstances in which this appeal was allowed, or the case which

might remain against them in the event that a retrial be directed, are such as would justify the Court in not directing a retrial or,

indeed, require the Court not to so direct.

6.2. The Court accepts that the test is as was put forward by counsel on behalf of Mr. O’Leary, and broadly agreed to by counsel for

the DPP, being a test as to where the interests of justice lie in all the circumstances of the case.

6.3. Having regard to the seriousness of the offences alleged and what the Court views as the explicability of the lapse of time which

has occurred, coupled with the absence of any specific prejudice in that regard, the Court is of the view that the balance of justice

in this case favours the direction of a retrial.