The Director of Public Prosecutions (respondent) v Joseph Gannon (applicant).

Criminal Law - Appeal involving point of law of exceptional public importance - Newly discovered material- Whether conviction unsafe and unsatisfactory - Course defence took at trial - Objective evaluation of material - Courts of Justice Act 1924 (No 10), section 29 - Criminal Procedure Act 1993 (No 40), sections 2 and 9.

The Supreme Court (Mr Justice Blayney, Mrs Justice Denham, Mr Justice Barrington, Mr Justice Murphy and Mr Justice Lynch); judgments delivered 17 December 1996.

WHERE material comes to light after a trial has concluded, the court, in determining whether the new material renders the conviction unsafe or unsatisfactory, must objectively examine the nature and content of the material. Considering whether the defence would have been conducted differently had the material been available is not the proper course to take in coming to a determination.

The Supreme Court so held in dismissing an appeal certified by the Court of Criminal Appeal pursuant to section 9 of the Courts of Justice Act 1924 on the grounds that its decision of 29 February 1996 involved a point of law of exceptional public importance.

Barry White SC and Tony Sammon BL for the appellant, Kenneth Mills SC and Eamonn Leahy BL for the respondent.

MR JUSTICE BLAYNEY said that the matter came before the court on foot of a certificate issued by the Court of Criminal Appeal on 17 May 1996 certifying that its decision, delivered on 29 February 1996, involved a point of exceptional public importance and in the public interest an appeal on the point should be taken to the Supreme Court.

The appellant was convicted on 15 June 1988 in the Dublin Circuit Court on charges of rape, indecent assault and common assault and received a 12 year sentence. Leave to appeal was refused by the Circuit Court and again by the Court of Criminal Appeal.

In August 1993 the appellant requested the original investigation file from the Chief State Solicitor and on inspection, two documents which had not been made available to the defence prior to the trial came to light. The appellant, alleging that these documents constituted a newly discovered fact which showed that there had been a miscarriage of justice in relation to his conviction, applied to the Court of Criminal Appeal under section 2 of the Criminal Procedure Act 1993 for an Order quashing his conviction. His application was refused on 29 February 1996.

On 17 May 1996 a certificate was granted by that court pursuant to section 9 of the Courts of Justice Act 1924.

Mr Justice Blayney said the point of exceptional public importance contained in the certificate granted by the Court of Criminal Appeal was whether the material that became available after conviction rendered the conviction of the appellant unsafe and unsatisfactory (1) having regard to the course that the defence took at the trial or (2) otherwise.

The material which became available consisted of two documents, namely notes taken by Ms Riordan, a guidance counsellor at Crumlin College to whom the complainant first reported the matter and the report the investigating garda prepared based on the notes furnished by Ms Riordan. Both contained details of the description given by the complainant to Ms Riordan of her attacker.

Mr Justice Blayney stated that at the trial in the Circuit Court the prosecution's case depended entirely on the complainant's visual identification of the appellant.

Mr Justice Blayney, referring to the certificate of the Court of Criminal Appeal, said that the course taken by the defence at the trial was not to challenge the description the complainant had given of her assailant. She was not cross examined in relation to any discrepancies which may have existed between her statement in the book of evidence and her oral evidence at the trial. Sergeant Brennan was not cross examined in the presence of the jury in relation to the description of the assailant given by the complainant to him and upon which he had selected photographs to show to her.

Mr Justice Blayney said that the Court could not conclude for certain that the defence would not have been conducted differently had the material been disclosed prior to the trial.

Whether or not a conviction was unsafe or unsatisfactory could not be determined by having regard to the course taken by the defence at the trial. Rather, the Court must carry out an objective evaluation of the newly discovered material to determine whether it rendered the appellant's conviction unsafe and unsatisfactory.

Mr Justice Blayney compared the descriptions given by the complainant in (a) the complainant's statement of 16 October 1987 as incorporated in the book of evidence, (b) the account given to Sergeant Brennan on 16 October 1987 when he was showed photographs to the complainant, (c) the complainant's direct testimony at the trial, (d) the complainant's initial complaint to Ms Riordan as contained in the notes of Ms Riordan made on 14 October 1987 and (e) the report prepared by the investigating garda on 15 October 1987. He was satisfied that there was nothing in the newly discovered material which could have assisted the appellant in any way. The discrepancies between the description given by the complainant contained in the book of evidence and that in the newly discovered material were minimal. Nothing new had come to light which would have enabled the defence to present the case in a different light. There was nothing to indicate that the conviction of the appellant was unsafe and unsatisfactory. He was satisfied the appeal should be dismissed.

MR JUSTICE LYNCH said in his judgment that the only issue at the trial was the identity of the assailant. In her statement which was included in the book of evidence the guidance counsellor stated that the complainant had given her a very good description of the assailant which she, the guidance counsellor, had already given to the gardai. Thus, the defence had been put on notice that a description of the assailant had been given by the complainant at or about the time of the first complaints and also that a description had been given to Sergeant Brennan when he was showing the complainant an album of photographs.

Mr Justice Lynch considered the different approaches which might have been adopted by the defence had the newly discovered material been available. In concluding that there was no significant contradiction between any of the descriptions given by the complainant, Mr Justice Lynch took the view that to refer to the two newly discovered documents at the trial would risk emphasizing the basic consistency of the description given by the complainant throughout.

Mr Justice Lynch accepted that the non disclosure of evidence might well lead to the quashing of a conviction where the non disclosure could affect the manner in which the defence might meet the case. However, he took the view that this was not such a case. Mr Justice Lynch said the fact that the jury at the trial had returned a unanimous verdict of guilty despite the most careful and detailed warnings of the dangers inherent in visual identification must be taken into account.

Mr Justice Lynch agreed with the judgement of Mr Justice Blayney, answered both questions posed in the certificate in the negative and dismissed the appeal.

MRS JUSTICE DENHAM, MR JUSTICE BARRINGTON and MR JUSTICE MURPHY agreed with the judgments of Mr Justice Blayney and Mr Justice Lynch.

Solicitors: Chief State Solicitor for the respondent; Harold Waterman & Co (Dublin) for the applicant.