People (Director of Public Prosecutions) (respondent) v Martin Murray (applicant)
Criminal law - Procedure - Application under section - Whether application stateable - Standard of preparation for trial - Whether conduct of trial competent - What constitutes a "newly discovered fact" - Meaning of word "significance" - Criminal Procedure Act, 1993 section 2.
The Court of Criminal Appeal (before Mr Justice Geoghegan): judgment delivered April 11th, 2005.
Where an applicant was perfectly aware of a set of circumstances at the time of the trial and those circumstances, if they had been the basis of any form of appeal, could have been brought up at the original appeal, those circumstances cannot later be regarded as a "newly discovered fact" for the purposes of s.2 of the 1993 Act.
It has never been the law that there has to be written advice on proofs or advice on proofs of any particular detail or particular types of consultations at particular stages. What matters is that the trial is conducted with reasonable care and competence, which will involve judgment calls by counsel for the defence which may in many cases not be in accordance with the views of the accused.
The Court of Criminal Appeal so held in recommending that the application under section 2 be dismissed.
Desmond Murphy BL for the applicant; John Aylmer SC and Jonathan Kilfeather BL for the respondent.
Mr Justice Geoghegan stated that this was an application under section 2 of the Criminal Procedure Act, 1993. It was alleged by the Director of Public Prosecutions that the application did not disclose a prima facie case that a miscarriage of justice had occurred in relation to the conviction sought to be quashed. Under section 5 of the 1993 Act, the registrar of the court acting administratively may form a view that an application under section 2 does not disclose a prima facie case that a miscarriage of justice has occurred in relation to the conviction or the sentence as the case may be and he or she may then without calling for the report of the official stenographer refer the application to the court for summary determination. She did not do so in this case and the application appeared in the ordinary way before the full court presided over by Hardiman J. That court queried whether there was a prima facie case as it was clearly entitled to do. In this instance, the court decided to refer the case to a management list before Mr Justice Geoghegan sitting alone.
Mr Justice Geoghegan said he had decided to adopt a procedure which in all the circumstances would be fair to the applicant. What had troubled him was that if the registrar had in fact made a reference, the matter would probably have been dealt with by a single judge in the first instance and there would then have been an appeal to the full court. That being so, Mr Justice Geoghegan stated that he did not propose, even if he had the power to do so, to make a final and absolute determination on this application, but rather to express his views in this interim judgment and then refer the matter into the list of the full court which could make a final determination.
Mr Justice Geoghegan referred to section 2 of the 1993 Act which provides:
"2. - (1) A person -
(a) who has been convicted of an offence either -
(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under section 13(2)(b) of the Criminal Procedure Act, 1967, and who, after appeal to the court including an application for leave to appeal, and any subsequent retrial, stands convicted of an offence to which this paragraph applies, and
(b) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive, may, if no further proceedings are pending in relation to the appeal, apply to the court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the court against the conviction or sentence.
(3) In subsection (1)(b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.
(4) The reference in subsection (1)(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.
(5) Where -
(a) After an application by a convicted person under subsection (1) and any subsequent retrial, the person stands convicted of an offence, and
(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent retrial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive, he may apply to the court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection."
Mr Justice Geoghegan stated that the applicant was convicted in a trial by judge and jury at Naas Circuit Court on February 11th, 1999, of having in his possession and for distribution a large quantity of drugs. The applicant was sentenced to seven years imprisonment which he served, his appeal to the Court of Criminal Appeal having been dismissed in May, 2001. The applicant's present counsel and solicitor were not the counsel and solicitor originally engaged for the purposes of his trial. Mr Justice Geoghegan referred to the contents of the written submission made on behalf of the applicant as he believed it contained the nub of the case. The submission was that present counsel and solicitor were first retained by the appellant in October, 2004. It became apparent from studying all the papers collected by the appellant and through his former legal advisers that there was no prospect whatsoever of any credible appeal being mounted on the basis of the conduct of the case in February, 1999, by his then leading counsel but that there were disturbing aspects to the preparation of the original trial which had not been previously noticed. The alleged "disturbing aspects to the preparation of the original trial" were that counsel who conducted the case had only been briefed late on the evening before the trial and there had been no proper preparation of the case by a formal advice on proofs, an updated witness statement, timely consultations and/or formal consideration of the appellant's list of witnesses which might or might not have proved useful. It was alleged that the applicant had been charged since October, 1996, and that his then solicitors had written to a leading counsel in November, 1997, requesting advice on proofs and had been promised such advice. The trial was listed in February, 1998, and it is alleged that the then solicitors wrote "frantic letters" to various expert witnesses requesting their attendance. The trial was, in fact, postponed but it was claimed that in the period of February, 1998 to 1999 the solicitors did not take any steps "to fill the holes in the case" and on the weekend before the case was coming on for hearing left the appellant without a legal team. It is claimed that these matters could be demonstrated from either the transcript or original files and evidence gathered down the years. Thus, the main contention of the present appeal was that the standard of preparation for this serious criminal trial was so inadequate and fell so far short of what was required and coupled with the taking of the brief by a new barrister the night before in such a disorganised state that the possibility of a miscarriage of justice could not be ruled out. It was submitted that the court should disregard the energetic presentation of the actual trial by experienced leading counsel and focus on the extent of the handicap that he was carrying and which made an already difficult case impossible to win.
Mr Justice Geoghegan said that there is no doubt that as a matter of law and in exceptional circumstances a conviction may be quashed by the Court of Criminal Appeal on the grounds that a miscarriage of justice may have arisen from incompetent handling of the defence at the trial. Cases in support of that proposition had been cited and it was well known that that is the legal position. Mr Justice Geoghegan stated that the first point to be noted about this application was that it was not suggested either in the written submissions or in the oral submissions before the court that there was any incompetence in the actual conduct of the case by senior counsel on behalf of the applicant. Mr Justice Geoghegan said that the purpose of all the steps taken by a solicitor for an accused in preparation for a trial are with a view to the case being done competently. There has never been a hard and fast rule as to what the nature of these steps should be. It has never been the law that there has to be written advice on proofs or advice on proofs of any particular detail or particular types of consultations at particular stages. What matters is that the trial is conducted with reasonable care and competence. That itself will involve judgment calls by counsel for the defence which may in many cases not be in accordance with the views of the accused himself.
The application in the instant case was grounded on an affidavit of the applicant sworn on November 11th, 2004. Having set out the history of his arrest, trial, conviction and sentencing, the applicant explained that he had appealed against both conviction and the sentence of Judge Groarke but that the appeal was dismissed on May 16th, 2001. He remained in prison until September, 2004, and, as he put it himself, he held "very strong views" about the manner of his conviction and, while in prison, he sought to overturn it. He referred to a number of applications which he made to different High Court judges but that in each case these were refused. Although he did not say so in the affidavit, the court inferred that these were probably applications for judicial review. The applicant went on to say that he had had a difficult relationship with the few lawyers who tried to help him because of his insistence on a review of the evidence of the trial that led to his conviction. He then explained that in September, 2004, he contacted his present legal advisers and they had sight of all the papers. He was advised by his present counsel in a lengthy opinion that there was no possibility of a successful appeal based upon a review of the evidence at the original trial. He then went on to complain about his previous solicitors. He claimed that there was very little contact between the solicitors and himself between charge and trial though he conceded that he had a consultation in their offices in 1997 and that there was a memo of that interview. He claimed that he had advised his solicitors that two particular witnesses should be called and that they were not called.
Mr Justice Geoghegan emphasised the obvious. The applicant was perfectly aware that those witnesses were not called and therefore if that had been the basis of any legitimate form of appeal it could have been brought up at the original appeal before this court. It could not be regarded as a "newly discovered fact". The applicant also complained that no mapper came to his trial although there had been a letter addressed to Mr David H. Semple. Mr Justice Geoghegan said that for the same reason this would seem to be irrelevant to the application and, at any rate, it was not in any way made clear in what way either Mr Semple, or indeed the other witnesses, would have helped him. The applicant's next complaint was that there was no "formal advice on proofs prepared". This would not have been a ground of appeal, in the court's view, even if it had been brought up at the original appeal and it certainly could not now be brought up as a newly discovered fact. It was clear that whatever form any preliminary advices took the fact remained that the trial was conducted competently by his senior counsel. Indeed, in the next part of his affidavit, the applicant referred to some directions over the telephone which were given in late January, 1999, in regard to calling expert witnesses.
The applicant then averred that around February 4th, 1999, his solicitor informed him that there was a problem in finding a counsel to act for him but his own solicitor was able to provide him with a new legal team. He met these lawyers on the evening of February 9th at the Distillery Buildings, Church Street, Dublin, and he had a consultation lasting 30 minutes. Apparently, they listened to any views he expressed but they indicated that they would not be calling certain witnesses suggested by him. In his own affidavit, the applicant made a complaint that he was not happy with the cross-examination conducted by his senior counsel and that he thought it was not vigorous enough. However, as already indicated, it was not suggested in fact in the submissions made either in writing or orally that there was any incompetence in the conduct of the trial. The rest of the affidavit was taken up with somewhat similar allegations namely, that his wishes had not been complied with by the legal team. Mr Justice Geoghegan said that if any of this gave grounds for a valid appeal, which must be highly doubtful, it would have been an appeal which would have had to be grounded on the original application for leave to appeal to this court. If the applicant's wishes were not complied with at the trial he was perfectly aware of that and, therefore, there was no "newly discovered fact".
Mr Justice Geoghegan said he did not intend to review in detail the careful written and oral submissions made on behalf of the Director of Public Prosecutions. The court was in agreement with the points made and in one way or another they have almost all been referred to already in the judgment. There was, however, one matter arising from those submissions which had not been expressly dealt with and that was the issue of bar ethics. Article 9.4 of the current Code of Conduct for the Bar of Ireland provides that it is improper for a barrister to conduct a criminal defence unless he receives instructions within a reasonable period of time in advance of the date of trial. It was pointed out by the respondent that this rule is an amended form of the rule considered by the Court of Criminal Appeal in People (DPP) v McDonagh 3 IR 429. The old rule considered in that case provided that it was improper for a barrister to conduct a criminal defence unless he receives his instructions one week in advance of the date of the trial.
Mr Justice Geoghegan agreed with the written submission made on behalf of the Director of Public Prosecutions that what is reasonable will depend upon all the circumstances of the case, including the volume of the brief, the complexity of the case, the level of experience of the counsel being briefed and the level of commitment and time which he can give the case when briefed. It was submitted that it will be in any case a matter for counsel being briefed having regard to all of the other provisions of Article 9.4 of the Code of Conduct for the Bar of Ireland as to what is a reasonable period of time in the circumstances. As already indicated, no evidence had been adduced of any negative consequences arising from any of the alleged shortcomings of the lawyers. Mr Justice Geoghegan said that that is the crucial factor because the whole purpose of permitting a second or late appeal is to avoid or cure a miscarriage of justice. Counsel for the applicant referred the court to a large body of case law,some of it well known, but the court did not think that any of it was of particular assistance in the application of the clear principles applicable under the Act.
Mr Justice Geoghegan stated that he found it more useful to consider the meaning of the actual words used in the legislation. It seemed to the court that the word "significance" in section 2(4) is extremely important. Even if it were the case that no advice on proofs was given and that that was a fact the significance of which was not appreciated by the applicant during the trial or appeal proceedings, the question must be asked was the so-called "fact" significant in the sense of the cognate expression "significance" used in the subsection. To put the matter simply, an absence of advice on proofs could only become a relevant fact if there was an arguable case that the defence of the trial was conducted badly as a consequence. In that instance, the lack of advice might have a "significance". But there was no such evidence here.
In the court's view, there was not a stateable case for an application under the 1993 Act and Mr Justice Geoghegan considered that the application ought to be struck out by the court.
Solicitors: Michael Gillespie (Donegal) for the applicant; Chief Prosecution Solicitor for the respondent.
P.J.Breen, barrister