Miscarriage of Justice in Dpp v John Brown

Introduction

In this case scenario, as the case has been decided in the Central Criminal Court, the appeal shall lie to the Court of Criminal Appeal. The Court of Criminal Appeal may affirm the conviction of the Central Criminal Court, it may reverse the order in whole or in part, or it may reduce or increase the sentence given to the convict. The relevant provision is the Court of Justice Act 1924, Section 31, which provides that those convicted in Central Criminal Court may appeal to the Court of Criminal Appeal. The Court of Criminal Appeal may admit fresh evidence in exceptional circumstances and even order a new trial. This is provided by the Criminal Procedure Act 1993, Section 3, which relates to the jurisdiction of the Court of Criminal Appeal. Miscarriage of justice can be one of the grounds on which redressal can be sought by a convict in an appeal to the Court of Criminal Appeal under Section 2. This essay considers the law and authorities related to miscarriage of justice and applies this to the case scenario in DPP v John Brown.

Miscarriage of Justice: Jurisprudence

A miscarriage of justice involves a wrongful conviction by a court of law and this can happen due to one of the following primary factors: eyewitness misidentification; overstated or faulty scientific evidence; the use of prison informants; false confessions; and police or prosecutorial misconduct. The Criminal Procedure Act 1993, Section 2 is applicable in such cases and can be used to seek redressal against miscarriage of justice. This provision allows the Court of Criminal Appeal to review an alleged miscarriage of justice or excessive sentence against a person who is convicted of an offence either on indictment or 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 alleges that a new or a newly-discovered fact shows that there is a miscarriage of justice with relation to his conviction. The person so convicted can apply to the Court of Criminal Appeal for an order quashing the conviction or reviewing the sentence. Therefore, miscarriage of justice can be redressed if a ‘new or newly discovered fact’ relating to the crime for which the individual is convicted is presented to the Court. As noted by Langwaller, from the reading of Section 2 of the Criminal Procedure Act 1967, it can be noted that “the engine which motors the Criminal Procedure Act and triggers its application is that a new or newly discovered fact is produced which demonstrates that there has been a miscarriage of justice.”

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The two terms that are used in Section 2 of the Criminal Procedure Act 1967 are ‘new fact’ or ‘newly discovered fact’. These terms have been explained as follows. A new fact is a fact that was known to the convicted person at the time of the trial or appeal proceedings, and also appreciated in its significance, and he alleges the existence of a reasonable explanation for his failure to adduce evidence of that fact. A newly discovered fact is a fact that the convicted person discovered after the appeal proceedings, or a fact the significance of which he was not able to appreciate during the trial or appeal proceeding.

Based on the discussion above, it may be summarised that the person who claims that he is a victim of a miscarriage of justice has to adduce that there is a new or a newly discovered fact that shows that there has been a miscarriage of justice in his case. The burden of proof on the balance of probabilities is on such alleged victim of the miscarriage of justice.

Reading Section 2 and Section 3 of the Criminal Procedure Code 1967, it may be noted that a person who claims to be a victim of miscarriage of justice may make an appeal to the Court of Criminal Appeal, based on the ground that there is a new or newly discovered fact and in that case, as per Section 3, the Court of Criminal Appeal may even quash the conviction or sentence or order re-trial.

Two other provisions that are relevant to this discussion on miscarriage of justice and the legal redressal mechanisms open to the claimant, are Sections 7 and 9 of the Criminal Procedure Code 1967. Section 7 allows the convict who alleges miscarriage of justice to petition to the Minister for Justice for a pardon under Article 13.6 of the Constitution. This petition also invokes the adducing of a new or newly discovered fact to show a miscarriage of justice in the conviction. If the Minister is of the opinion that such miscarriage of justice has indeed occurred, then there can be a recommendation made to the government that either the President grant a pardon or, pursuant to section 8 of the Criminal Procedure Act, a Committee should be ordered to inquire into and report on the case. Section 9 relates to compensation for miscarriage of justice, which may be given upon the quashing of the conviction or on acquittal on re-trial along with the certification of the court that there has been a miscarriage of justice, or where a pardon from the Minister of Justice is received. In case no such compensation is provided, the person can also sue for damages. Recently, Section 9 was considered in Hannon, which will be discussed later in this essay. Another case that is relevant to miscarriage of justice is that of Pringle No. 2, in which the court held that where an appellant makes an application under Section 9 of the Criminal Procedure Code 1967, the onus is on the appellant to prove that there has been a miscarriage of justice on the balance of probabilities. The presumption of innocence does not apply at this stage. Other important points were made in Pringle. First, the court has to be satisfied of the occurrence of miscarriage of justice on the balance of probabilities and only once satisfied, can the court issue a certification of miscarriage of justice. Second, mere fact of the quashing of the appellant’s conviction does not ipso facto entitle the applicant to a certificate that there has been a miscarriage of justice. Third, the primary meaning of miscarriage of justice for the purpose of a certificate by the court is that the applicant is innocent of the offence, as established by relevant and admissible evidence, on the balance of probabilities.

Another important case in context of miscarriage of justice is Gannon, which involved conviction for rape and assault. After the conviction, some documents came to light, including notes from a guidance counsellor to whom the complainant had first reported the rape and a report of a Garda containing details of description. However, this was not considered in itself to be sufficient to justify the conviction being held as unsafe and unsatisfactory. When the matter went in appeal to the Supreme Court, the Court considered that the discrepancies that were found between the description of the assailant in the newly discovered material and that which was provided by the complainant in her statement in the book of evidence and testimony were not significant enough to have enabled the defence to present the case to the jury in any different light in the case when it was first tried. The Court of Criminal Appeal also had considered that the non-disclosure of the evidence in the first instance, did not ipso facto justify the quashing of the conviction because there was nothing in the new evidence that would support such a verdict by the jury. Moreover, the court also observed that in cases involving allegation of miscarriage of justice, what is required of the court is to conduct an objective evaluation of the newly discovered fact with a view to ascertaining whether the newly discovered fact makes conviction of the appellant unsafe and unsatisfactory.

Therefore, what Gannon brings to the fore is that the new or newly discovered fact should be such that the defence could have used to present the case to the jury in a different light. In other words, it should be some evidence that assists the appellant in some way to present his case differently. As mentioned earlier, when the court considers whether there was miscarriage of justice in the conviction, it does not presume that the appellant was innocent. The onus is on the appellant to show how the new fact or newly discovered fact is significant enough to help him present the case in a different light than what was presented to the jury that brought in the verdict against him in the first place.

Gannon makes two important points, which may be taken to have added to the jurisprudence on miscarriage of justice after Pringle. First, it emphasises on the need for the court to conduct an independent and objective evaluation of a new or newly discovered fact in context of whether such fact renders the conviction unsafe or unsatisfactory. Second, it emphasises that the court should seek to reconstruct how the defence strategy may have been formulated had the defence been aware of the newly discovered material at the time when the trial was first conducted.

Another important case in this respect is that of Grogan, in which the “newly discovered fact” was in the form of a fingerprint found on the inside of a front passenger door window in a car. On appeal to the Court of Criminal Appeal, the court held that it could not give a certificate on the fingerprint evidence due to the absence of a decision by a jury in a trial in which the non-disclosed material had been available to the accused. However, the Supreme Court held that the Court of Criminal Appeal made a mistake in law when it refused to grant a certificate based on the ground that the fact that the guilt or innocence of the appellants had not been determined by a jury at a trial where the non-disclosed material had been available to the accused. However, the Court of Criminal Appeal did make an important point in the case that the certificate of miscarriage of justice is given when the appellant proves on balance of probabilities and not possibilities that there was a miscarriage of justice.

In Callan, the mere fact that the appellant was under pressure at the original trial is not enough to prove that the fact would have affected the result of his trial, had it been known to the Court at the time. The Court of Criminal Appeal went on to state in this case that for a fact to come within the provision it must be relevant to the trial, admissible at the trial and be relevant to the decision of the trial court.

Coming back to the decision in Hannon, mentioned above in the essay, the facts of the case were that the applicant was convicted of sexual assault and assault against a ten year old girl. There was a history of animosity between families. 9 years after the conviction, the complainant (now a major), retracted her statements made earlier at the trial phase and admitted that the family animosity was responsible for her false statements earlier, which had led to the conviction of the appellant. This newly discovered fact, being in the form of retraction of statement by the complainant herself was held by the Court of Criminal Appeal to be a ground for certificate of miscarriage of justice.

What is reinforced by the Hannon case is what was also held in previous line of authorities on miscarriage of justice, which is that the new fact or newly discovered fact must be of such nature that it puts the matter in a different light and not on possibilities but the balance of probabilities, shows the appellant to be innocent of the crime that he was convicted for. The cases that are considered above all have the common element of linking miscarriage of justice to new fact or newly discovered fact, these facts being evidence that were relevant to the conviction and were admissible evidence at the trial court. Four points may be noted here as being relevant to ascertaining or constituting miscarriage of justice:

Where it is established that the applicant was innocent of the crime alleged. Where a prosecution should never have been brought in the sense that there was never any credible evidence implicating the applicant. Where there has been such a departure from the rules which permeate all judicial procedures as to make that which happened altogether irreconcilable with judicial or constitutional procedure. Where there has been a grave defect in the administration of justice, brought about by agents of the State.”

Therefore, there are specific conditions under which miscarriage of justice can be said to have occurred and every time a new fact or a newly discovered fact comes to light, miscarriage of justice cannot be averred. This is also reinforced in Kelly, where the Court of Criminal Appeal observed that the newly discovered fact must be such that would “have genuinely enabled the defence to raise a doubt in the minds of a jury. It does not contemplate remote, hypothetical or fanciful possibilities.” Therefore, what the court would be looking at in such cases is whether the new fact or newly discovered fact would materially affect the decision reached by the trial court.

With respect to the interlink between Section 2 of the Criminal Procedure Code 1967 and Section 9 of the same Act, the recent case of Nevin, makes an important point, which is that its jurisdiction need not be invoked under Section 2 only on the ground of miscarriage of justice. The court held that the applicant need not establish that a miscarriage of justice has actually occurred before proceeding to quash the conviction; that the court can be approached when new facts come to light for the first time after an appeal, which may be relevant to establishing miscarriage of justice; and that applicant can ask for redress if there is new material which may have raised a reasonable doubt in the minds of the jury had it been presented at the time.

In Conmey, the new material showed that the State had failed to disclose original statements from witnesses who only implicated the accused in later statements that were altered or different from the initial statements. The court held that certificate of miscarriage of justice be granted and also observed:

“if material, due to concealment or otherwise, was unavailable to the defence at the trial, it follows that it cannot have influenced the course taken by the defence at that time. Nor is it realistically possible to reconstruct with any degree of certainty what course the defence would have taken if they had had available to them material which was in fact unavailable.” Therefore, the court has emphasised that the position in such cases must not be to reconstruct what the defence would have done with the evidence had it received it at the time of the trial, but to resolve the question whether this is a case in which there may have been a miscarriage of justice in light of the new facts.

Application of the law to DPP v John Brown

In this case, John Brown was arrested for the murder of Garda Harry Murray, attempted murder of Michael Nolan, and causing serious harm to Larry Sheridan. In this case scenario, there was no physical evidence against John Brown and the murder weapon was never found. The case against him consisted entirely of witness testimony. Therefore, a new fact or newly discovered fact regarding eyewitness testimony seen to be significant enough to have a material impact on the conviction of John Brown, may be argued to be sufficient basis for establishing miscarriage of justice under the Criminal Procedure Code 1967.

The Criminal Justice Act 2006, Section 16 provides that statements made by the witnesses in trials on arrestable offences may be admitted with the leave of the court and as per subsection 3 of Section 16, the court may consider the reliability of the witness statement with regard to, inter alia, an explanation by the witness for refusing to give evidence or for giving evidence that is contrary to the statement given. Furthermore, subsection 4 of Section 16 provides that the court shall not admit witness statement where it is of the opinion that the admission would be unfair to the accused and would be contrary to the interest of justice in the case.

In this case scenario, eyewitness testimony was not done in an identification parade, which is something that the jury should have been given a warning about. In a recent case, it has been held that if the conviction of a person is wholly or substantially dependent on visual evidence, and a formal identification parade has not taken place to identify the accused, then the Director of Public Prosecutions and garda have to explain to the court as to the objective justification for presenting this evidence.

Two of the witnesses, Stephen O’Neill (Witness 3) and Helen Murphy (Witness 4) have identified John Brown as the murderer of the Garda. However, their initial statements to the Garda show that they were unsure of the identity of the perpetrator of that crime. In a statement given to the Gardaí shortly after Garda Murray’s shooting, Stephen O’Neill said that he had seen a “black male wearing a white hat and white shirt, black shorts” shoot the Garda and then run off with another person whom O’Neill thought was wearing a “black outfit”. In his statement, he said that he “wouldn’t recognise them again except for their clothes”. However, at the trial, he identified John Brown as the gunman. There is a serious discrepancy between the initial statement given by O’Neill and the statement at the trial. This discrepancy not presented at the trial so that the defence could have cross-examined the witness with regard to the initial statement in which he said that the perpetrator was a black male, and the later statements at the trial. Similarly, Helen Murphy gave various inconsistent statements to the police. However, her official statement and copies of an investigating Garda’s contemporaneous notebook entries from a conversation that he had with her, appeared to implicate Billy “Red” Johnson. Nevertheless, at the subsequent trial, she identified John Brown as the gunman. Therefore, there is again an inconsistency between the official statement and the statement at the trial. This fact was also not made clear to the jury at the time of the trial.

Lynch J has observed that the prosecutor must disclose and make available all relevant evidence in its possession whether or not it intends to tender that evidence in the trial, and even though it may advance the interests of the accused. In this case, the only evidence that the prosecutor had was the witnesses accounts. However, many of the witnesses gave inconsistent testimony and the earlier accounts of the witnesses mentioned above were not made clear to subject to warning at the trial.

Two of the other witnesses in the trial were inmates with John Brown. Kevin McCarthy (Witness 5) was remanded for trial in the same prison as John Brown and Jeffrey Jones (Witness 6) was also an inmate with John Brown at one point. McCarthy told the Gardaí that John Brown had confessed to shooting Garda Murray. Jones gave evidence that John Brown had told him that he had shot the Garda in self-defence. The rule that applies to this is evidence by inmate. It has been observed in a case that

“In a criminal trial whether it be before a judge and jury or a judge or judges without a jury no statement made by an accused person can be put in evidence against him unless the prosecution first discharges the onus of establishing that the statement is admissible in law. This rule applies to both incriminatory statements and exculpatory statements. No such statement is admissible in law unless it is proved to be voluntary and has not been obtained by unfair methods and has not been obtained as the result of any conscious and deliberate violation of a constitutional right of the accused.”

Witnesses 5 and 6 made statements saying what was supposedly told to them by Jones. However, Jones had not made these statements under any warning or caution. These were not admissible as confessions in the trial case. Darren Collins (Witness 7) was a juvenile at the time of the murder and he was questioned by 15-armed Gardaí on the night of the incident. As per the Children Act 2001, persons under 17 years of age may not be questioned in relation to an offence or asked to make a statement without a guardian present. Therefore, the statement taken by the Gardai was not admissible evidence.

The evidence of Billy “Red” Johnson (Witness 2) is also marred by suspicion because he had been carrying a .38 calibre silver chrome handgun, half an hour before Garda Murray was shot and later he implicated John Brown as the gunman. Helen Murphy (Witness 4) on the other hand, had earlier indicated that he was the gunman but later changed her statement to implicate John Brown.

Witness 1, a ballistics expert expressed “some doubt” but later maintained that he was “confident” that .38 calibre shell casings found at the Greenhills party matched one allegedly found by a homeless man near the McDonalds restaurant. However, the homeless man did not testify at the trial.

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Conclusion

The new facts show that there were serious discrepancies in the witness testimonies which if made known at the time of the trial could have allowed defence to prepare a strategy that may have helped exonerate John Brown. Therefore, there has been a miscarriage of justice in the case.

Table of Cases

  • D.P.P.v. Callan [2003] 2 I.C.L.M.D. 39.
  • D.P.P. v.Conmey [2010] I.E.C.C.A. 105.
  • DPP v Mekonnen [2012] 1 IR 210.
  • D.P.P. v. Nevin [2010] I.E.C.C.A. 106.
  • (D.P.P.) v. Wall [2005] I.E.C.C.A. 140
  • Murphy v. DPP (1989) ILRM 71
  • People (DPP) v Conroy [1986] IR 460.
  • People (DPP) v Duff [1995] 3 IR 296.
  • People (D.P.P.) v. Hannon [2009] 2 I.L.R.M. 235.
  • People (D.P.P.) v. Gannon [1997] 1 I.R. 40
  • People (D.P.P.) v. Kelly [2009] I.E.C.C.A. 56
  • People (D.P.P.) v. Meleady & Grogan [1995] 2 I.R. 517.
  • People (DPP) v Pringle No. 2 [1997] 2 IR 225.
  • Bibliography
    Books

  • Quinn SE, Criminal Law in Ireland (Irish Law Publishing 2009)
  • Langwallner D, ‘Miscarriages of Justice in Ireland: A Survey of the Jurisprudence with Suggestions for the Future’ (2011) 2(1) Irish Journal of Legal Studies 22.

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