Supreme Court allows appeal quashing conviction where prosecution failed to give notice of rebuttal evidence under s.20 Criminal Justice Act 1984.

THE SUPREME COURT

[Supreme Court Appeal No: 80/2016]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

O’SULLIVAN

APPELLANT

JUDGMENT of Ms. Justice O’Malley delivered the 8th day of March 2018

Introduction

1. The presentation of prosecution evidence in a criminal trial is governed by a number of different rules, and it is possible for one

piece of proposed evidence to attract differing rules depending on the circumstances in which it is sought to be adduced. Since the

objective of the rules of evidence is to ensure a fair trial of the issue of the guilt or innocence of the accused, the rules should ideally

be applied consistently with that objective and with each other.

2. The issues in this case were initially seen by the appellant’s counsel as being primarily related to the prosecution duty in respect of

disclosure. On appeal, the case was presented as being more concerned with notice of evidence. The rules applicable to these issues

are closely related and may on occasion overlap. On the facts of the case, I have also found it helpful to consider the authorities on

rebuttal evidence. The inclusion of references to those authorities should be seen as assisting in understanding the context of the

rules, but the conclusions I have come to do not turn on them.

3. The rules to be considered in the case may be summarised in the following uncontroversial propositions. Many are subject to

exceptions, but as this judgment is not intended to be a treatise on the law of evidence I will concentrate only on the aspects

relevant to this case.

4. The prosecution is obliged to give notice of the evidence that it intends to call in a trial. As described by the Court of Criminal

Appeal in DPP v. Farrell [2014] IECCA 37, the purpose of giving notice of the evidence to be deployed against an accused is to give

him a fair opportunity of answering it, not by mere bare denial but by evidence of his own or by cross-examination of the witness

making the allegation. It is for that reason that prior notice is described as an essential aspect of a fair trial. The right to a fair trial is,

of course, a fundamental right protected by Article 38.1 of the Constitution.

5. The prosecution is further obliged to make disclosure of all material in its possession that might undermine its own case or

strengthen the defence. These two principles are, therefore, complementary in that notice is required for evidence intended to be

used, while disclosure is required in respect of relevant unused material that might assist the defence.

6. Subject to certain exceptions, the prosecution may not, having regard to the prohibition set out in s. 1(f) of the Criminal Evidence

Act 1924, adduce evidence tending to show that the accused has committed or has been charged with other crimes in the past, or is

of bad character generally, and, if the accused is called as a witness, may not ask questions in cross-examination to the same effect.

If one of the exceptions arises, and such evidence or cross-examination becomes permissible, it is still governed by the test of

relevance and by the principle requiring the exclusion of evidence that is more prejudicial than probative. The accused may however

be cross-examined about a previous statement inconsistent with his account in the witness box.

7. The accused may lose the protection afforded by the Act of 1924 if he “drops his shield” by engaging in any of the courses of

conduct set out in the section. These include taking steps that have the effect of putting his or her own character in issue. The

shield is also lost if proof that the accused has committed or been convicted of the other offence is admissible evidence to show that

he or she is guilty of the offence before the court.

8. A witness other than the accused, whether called by the prosecution or the defence, may be asked questions relating to bad

character designed to impugn his or her credibility. Credibility may also be impugned inter alia by reference to the fact that a witness

has made a previous statement inconsistent with his or her sworn evidence.

9. The defence is obliged by statute to give notice if it intends to call alibi evidence. While in general the prosecution is entitled to

call rebuttal evidence only if something arises from the defence case that could not have been reasonably foreseen, rebuttal evidence

is specifically envisaged as being admissible by the statutory provision dealing with alibi notices. In accordance with that provision, if

prosecution evidence is to be called, intended to disprove the alibi, it is a matter for the discretion of the trial judge whether it should

be adduced as part of the prosecution case or after the defence evidence.

10. In all circumstances the trial judge bears the ultimate responsibility of ensuring that the trial is conducted fairly, and should

disallow questions or evidence which are irrelevant or for some other reason improper. It is within the discretion of the trial judge to

adjourn for an appropriate period of time or to discharge the jury where such action is necessary to ensure fairness.

11. The question to be determined on the facts of this case is whether or not the prosecution, having been put on notice of an alibi,

was obliged to inform the accused of the evidence it intended to deploy in rebuttal.

Background facts

12. Two burglaries of domestic dwellings took place in the Sunday’s Well area of Cork on the morning of the 22nd June, 2014. The

appellant was interviewed by the gardaí, about three months later, in relation to both offences. He denied involvement and agreed to

participate in formal identification parades. At one parade the witness picked out one of the parade volunteers – an undoubted error –

but at the other the appellant was identified by the householder as the man she had encountered in her house at about 7.40 am on

the 22nd June. The appellant was charged with that burglary, and the identification was the principal evidence intended to be

adduced against him.

13. In interview the appellant appears (going by the submissions) to have said that he was at home at the time of the burglary. At

the relevant time the appellant lived with his mother in Barrett’s Buildings, quite close to the burgled house. However a notice of alibi

was served by the defence some three months before the trial. It was asserted in the alibi notice that at the time of the offence the

appellant had been with his girlfriend in Little Island – a significant distance away – and that he had been in her company from 4.00

pm on the 21st June to about 12.30 on the 22nd.

14. It may also be noted here that the defence had sent a letter in standard form seeking all material in the possession of the

prosecution “touching upon the guilt or innocence” of the appellant.

15. At the trial, the prosecution adduced its evidence and closed its case. The appellant then gave evidence in accordance with his

alibi notice. He confirmed that he lived with his mother in Barrett’s Buildings, but stated that he had been nowhere near Sunday’s Well

“on the night of the Saturday going in to the Sunday”.

16. To deal with the identification evidence of the householder, the defence decided to adduce evidence of the identification parade

held in relation to the other burglary in order to demonstrate that errors can be made in such matters.

17. At the end of the appellant’s evidence in chief, counsel for the prosecution applied for leave to call rebuttal evidence to the

effect that a Garda O’Driscoll had called to the appellant’s home at 11.45 pm on the 21st June and had met with the appellant there.

The trial judge initially heard the proposed evidence in the absence of the jury. The defence objected to this evidence being adduced

before the jury, on the ground that it had not been disclosed to them. The prosecution submitted that they were obliged only to

disclose relevant material and that the proposed evidence did not touch upon the appellant’s guilt or innocence, but was relevant only

because of the alibi defence. The trial judge took the view that to keep the evidence from the jury would be to pervert the course of

justice.

18. It appears that the appellant then resumed his evidence before the jury and denied having been at home at the time alleged by

Garda O’Driscoll. He was cross-examined on, inter alia, the proximity of his home to the burgled house. His girlfriend gave evidence in

support of the alibi. Garda O’Driscoll was then called as a rebuttal witness.

19. From the transcript extracts available to the Court it appears that the evidence of Garda O’Driscoll was that on the night of the

21st June he was on duty carrying out curfew checks on persons who were on bail. Under the system in operation for such checks,

such individuals had their details entered in a “curfew book”. The curfew book remained in the station, and before going out the

gardaí would print off a sheet (referred to in evidence as a “working sheet”) with the list of names to be checked. They would enter

the result of the checks into the curfew book on return to the station.

20. The curfew book in respect of the appellant was produced in court. It recorded that he had been at home at 1.25 am on the

morning of the 20th June, and at 11.55 pm on the night of the same date, and that he had stated to the gardaí that the curfew had

been lifted in the District Court on the previous day. It further recorded that during the following day, the 21st June, a complaint had

been made at the station that the gardaí were still calling to his home, notwithstanding the lifting of the curfew.

21. Garda O’Driscoll identified the second last entry in the book as having been made by him, stating that the appellant had been at

home at 23.45 on the 21st June. The last entry, by an unidentified person, recorded the fact that the appellant was no longer on

curfew. Garda O’Driscoll said that he had called to the appellant’s home on the 21st June because his name was still on the working

sheet printed off from the computer, and he did not see the entries in the curfew book, about the lifting of the curfew and the

complaint made about continued Garda checking, until he returned to the station. He maintained that he had written his entry at

some stage of the morning of the 22nd June after he had returned to the station, and he denied the suggestion put to him in cross-

examination that the entry had been made after receipt of the alibi notice.

22. Garda O’Driscoll made it clear that he had no recollection of the night in question, or of the meeting with the appellant. It

appears, therefore, that if his evidence was correct the appellant did not repeat the complaints made earlier that day to the station

or say anything to make the occasion memorable. The “working sheet” printed off from the computer does not appear to have been

produced in court.

Decision of the Court of Appeal

23. On appeal, the principal submission made was that the appellant had been deprived of a fair trial by reason of a deliberate

decision to withhold the information about the curfew book until he had given evidence; that the prosecution was obliged to disclose

any material capable of having an impact on the case; and that the prejudicial effect of the evidence outweighed its probative value.

24. In a judgment delivered on behalf of the Court Sheehan J. quoted at length from the decision of the House of Lords in R. v. Brown

(Winston) [1998] AC 367 (considered below). The judgment then continues:

“In the course of his speech in the Brown case, Lord Hope referred to an issue which we believe to be central to

this appeal, namely, that the principle of fairness and the right of an accused to a fair trial must also be seen in

the context of the public interest in the detection and punishment of crime and the proper functioning of the

adversarial system. If an accused person were entitled to be forewarned about weaknesses in his alibi defence,

then cross-examination directed only to credibility would lose much of its force and the jury would be deprived of

appropriate assistance in its assessment of the witness.

We are not persuaded by the suggestion advanced by the appellant that s.20(4) of the Criminal Justice Act 1984,

as amended, imparts any duty on a trial judge to direct disclosure. Furthermore we are satisfied that the principle

of fairness does not require any type of advance warning to an accused person that evidence is available to the

prosecution on foot of which either he or his witness are liable to have their credibility attacked. In a situation

where the proposed rebuttal evidence may impact on the character of the accused, then it is a matter for the

prosecutor, and ultimately the trial judge, to ensure that this evidence is presented in a manner that does not

deprive the accused person of a fair trial. Sometimes this may involve a disclosure or partial disclosure of the

proposed rebuttal evidence, but this is a very different thing to saying that the prosecutor is under a duty to

disclose rebuttal material which relates to credibility and may also impact on the character of the accused. Finally

in this case given that the appellant had dropped his shield in the course of conducting his defence, the need for

prior disclosure of the rebuttal evidence that had a tendency to impact on character did not arise. Accordingly we

dismiss this ground of appeal.”

25. The key reasoning of the Court of Appeal was, therefore, that an accused was not entitled to be warned about weaknesses in an

alibi defence where those weaknesses related to credibility, because to do so would detract from the force of cross-examination

directed only to credibility; and that while rebuttal evidence going to the character of the accused might need to be disclosed so as

to ensure that its presentation did not deprive the accused of a fair trial, the accused in this case had “dropped his shield” and in

those circumstances disclosure was not required.

The prosecution obligation to give notice of intended evidence

26. Before 1967, the procedure for sending forward a person for trial on indictment was governed by the Petty Sessions (Ireland) Act

1851, as adapted to the jurisdiction of the District Court. A preliminary inquiry was held before the District Court for the purpose of

determining whether or not there was evidence to justify sending the accused forward for trial. Witnesses as to fact attended court

and gave evidence on oath in the presence of the accused, and could be subjected to cross-examination. The evidence was taken

down in writing, read over and signed by the witnesses and the Justice. The depositions (the signed documents recording the

evidence) could in certain circumstances become admissible as evidence of their contents, but in any event the procedure certainly

fulfilled the function of putting the accused on notice as to the evidence to be adduced in the trial.

27. This procedure was significantly reformed by the Criminal Procedure Act 1967. The District Court still had the function of carrying

out a preliminary examination and deciding whether or not to send the accused forward for trial. However the deposition process,

although still available and still utilised on occasion by both the prosecution and defendants, was now largely superseded by the

documents required to be served on the defence by s.6 of the Act. These included a list of the witnesses whom it was proposed to

call at the trial, a statement of the evidence that was to be given by each of them, and a list of exhibits. These documents formed

the core of what was known as the book of evidence. The Act provided that the prosecution could serve additional statements made

by witnesses on the list, and could also, after the accused was sent forward, serve a list of any further witnesses it was proposed to

call together with statements of their proposed evidence.

28. Where the deposition procedure was availed of by any party, there was no requirement in the Act of 1967 to forward a statement

of evidence in advance. However in Flynn v Smithwick [1993] 3 I.R. 589 Costello J. held that if the other party had no pre-knowledge

of the testimony to be given, fair procedures might require an adjournment so that an “informed” cross-examination could take place.

29. The preliminary examination was abolished by the Criminal Justice Act 1999. Under the new procedure established by that Act, the

District Judge no longer has a role in determining whether or not the materials before the court disclose a case against the accused.

Sending the accused forward for trial is now a more or less automatic process, but may not take place until the accused has been

served with the documents specified by s. 4B of the Act of 1967 as inserted by s. 9 of the Act of 1999. The specified documents are

much the same as those that would have been required under the previous system, and there is still provision for the service of

additional evidence.

30. The obligation to serve notice of the evidence intended to be adduced by the prosecution has thus been a fundamental part of

the structural rules for criminal cases for over 150 years. The prosecution has the right to serve notices of additional evidence after

the return for trial, and it is commonplace for notices to continue to be served even during the trial, but the point is that notice must

be served. For the most part these late notices will simply fill in unimportant gaps in the evidence but where a matter of real

significance arises the practice is to grant such adjournment as may be necessary to enable the defence to consider its position. On

occasion the impact of the new evidence may be such as to require the discharge of a jury, and the fixing of a new date, in order to

ensure that the defence is not unfairly left at a disadvantage.

31. The continuing importance of the obligation to give notice of proposed evidence is illustrated in two judgments of the Court of

Criminal Appeal. In The People (Director of Public Prosecutions) v. Cull (1980) 2 Frewen 36 the accused was charged with membership

of an unlawful organisation. In terms of substantive evidence the book of evidence contained only a statement of belief from a Chief

Superintendent of the Garda Síochána in support of the charge. Since that evidence was, under the statute creating the offence,

sufficient for a conviction the accused gave evidence for the purpose of denying the charge. He was then cross-examined by

reference to his conduct on a number of occasions other than the date referred to in the charge.

32. The Court of Criminal Appeal, which quashed the ensuing conviction, described the obligation imposed on the prosecution by the

Criminal Procedure Act 1967, to inform an accused person of the nature and substance of the evidence intended to be offered, as

“part of the essential requirements of a fair trial.” The questions put to the accused appeared to have been based on information

that would not, in itself, have been probative if admitted as evidence of the offence. There had therefore been no reference to it in

the statement of evidence furnished to the accused. The Court continued:

“Having been then excluded upon such grounds matters of that nature should not have been put to the applicant

for the first time in the course of his cross-examination. It appears from the transcript that the Special Criminal

Court disapproved of the introduction of these matters in this manner. But it appears to this Court that the

prejudicial effect was such that the Special Criminal Court found in these matters a basis for disbelieving the denial

by the accused of membership of the illegal organisation alleged.”

33. Cull was referred to in a more recent decision of the Court of Criminal Appeal in another membership case, Director of Public

Prosecutions v Farrell [2014] IECCA 37. In that case, the disputed evidence was given by the Chief Superintendent by way of replies

to cross-examination, although it appears that the answers did not necessarily relate to the questions asked. The prosecution

submitted that Cull could be distinguished because in that case the information had been kept for use in cross-examining the

accused. Notwithstanding that difference, the Court quashed the conviction because the salient fact was that no notice whatever

had been given of the factual material which the witness wished to put before the trial court.

“If the Chief Superintendent, or prosecuting counsel, wished to deploy the information which the Chief

Superintendent eventually gave unasked, the defence should have been put on notice of it. This is one of the

essentials of a fair trial. When no such notice was given, it was quite inadmissible for the witness to blurt it out

uncalled for.”

34. In his concluding remarks Hardiman J. (giving the judgment of the Court) said:

“If, as happened in this case, evidential material beyond what is set out in the statement of proposed evidence is

in fact given by the Chief Superintendent then the prosecution must decide whether they intend to rely on this

material or not. If they do, they must seek leave to serve a statement of additional evidence on such terms as to

adjournment or otherwise as the court may think proper. If that is done then the prosecution will have to consider

afresh their disclosure obligations. If it is not done then the additional material should be disregarded by the court

and it should be made clear that this is the position.”

The obligation to disclose relevant material

35. The prosecution duty of disclosure is well established in this jurisdiction. As observed by O’Malley in The Criminal Process (Dublin,

2009) it is closely connected with the principle that the function of the prosecution is not to secure a conviction at all costs but to

assist the court in ensuring that justice is done. O’Malley cites the ex tempore judgment of Keane C.J. in McKevitt v DPP (unrep.,

Supreme Court, 18th March, 2003) as describing the fundamental principle of disclosure:

“[T]he prosecution are under a duty to disclose to the defence any material which may be relevant to the case

which could either help the defence or damage the prosecution, and if there is such material which is in their

possession they are under a constitutional duty to make that available to the defence.”

36. The prosecutor in this case has asserted that the duty of disclosure is rooted in the common law. It may therefore be necessary

to stress that in McKevitt this Court described it as “a constitutional duty”.

The decision in R. v. Brown

37. As noted above, this decision of the House of Lords was considered persuasive by the Court of Appeal in the instant case and is

relied upon by the Director in this appeal.

38. The charge against the accused arose from a stabbing incident in a nightclub. The principal evidence against him came from the

victim and one eyewitness, who said that they knew him and that he had carried out the attack with another man. Cross-examination

of those witnesses was conducted on the basis that they were lying about the identification.

39. A notice of alibi had been served in which two individuals were named as defence witnesses. One of these said that he had been

at a party with the accused at the relevant time. He was cross-examined by the prosecution in relation to the fact that he had been

asked by a police officer as to his knowledge of the whereabouts of the accused, and had told the officer that he had been too drunk

to recall. His response to the cross-examination was to accept that he might have said this, but to say that if he had it was in order

to get rid of the policeman.

40. The second witness had originally made a statement to the police in which he had directly implicated the accused in the events of

the night. He subsequently informed the police that he wished to withdraw the statement as he was no longer willing to assist the

prosecution. The statement was taken off the committal file, but was served on the defence by way of disclosure. The defence

solicitor subsequently interviewed him and it was decided to call him as a witness. His evidence was that he saw the two attackers

and that the accused was not one of them. In cross-examination it was put to him that when he withdrew the statement he had said

he was doing so because of threats. He accepted that, but said that he had ignored the threats and had wanted to withdraw the

statement because it was inaccurate.

41. The case made on appeal was that the prosecution had failed to disclose evidence in its possession that tended to reflect on the

credibility of the two alibi witnesses. The argument made was that this material was disclosable under the common law rules

applicable at the time of the trial, in the same way as information relating to the credibility of prosecution witnesses.

42. The speech of Lord Hope commences the discussion of the common law duty as follows:

“The rules of disclosure which have been developed by the common law owe their origin to the elementary right of

every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case

which is to be made against him. Fairness also requires that the rules of natural justice be observed. In this

context, as Lord Taylor of Gosforth C.J. observed in Reg. v Keane [1994] 1 W.L.R. 746, 750g, the great principle is

that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant

material which might undermine their case against him or which might assist his defence.”

43. The questions addressed in Brown were whether there was a reasonable distinction to be drawn between material that might

assist the defence case and material that related only to the credibility of defence witnesses; and, if so, was it consistent with the

general principle of fairness to say, as the Crown did in the case, that the prosecution was not under a duty to disclose material

relevant only to the credibility of defence witnesses.

44. On the first question Lord Hope pointed out that the credibility of a witness was in practice frequently tested by reference to

collateral material not directly relevant to the issues of fact to be decided by the trial court. The use of collateral material might, for

example, include questions directed to the credibility of a witness grounded upon matters such as relevant previous convictions or

established hostility to a party in the case. These could be of great significance for the credibility of the witness but had nothing to

do with the questions whether the offence had been committed, or whether the accused committed it. If the witness was not called,

evidence about his or her previous convictions or hostility would be irrelevant and inadmissible. It was acknowledged that in other

cases the question of credibility might be so intimately bound up with the facts of the case that the two could not reasonably be

separated, such as where contradictory accounts of the facts were given either by one witness in the course of his evidence or as

between a number of witnesses.

45. On the second question, Lord Hope said (at p. 379):

“As to the second question, the principle of fairness lies at the heart of all the rules of the common law about the

disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in

the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not demand that

his witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with

assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of

the defence witnesses. The legal representation to which he is entitled, usually with the benefit of legal aid, has

the responsibility of performing these functions on his behalf….

The common law rules which I have described are designed to ensure the disclosure of material in the hands of

the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and

preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and

assessment of possible defence witnesses…”.

46. It was emphasised that no witness entered the witness box with a certificate of reliability, and every witness could expect to be

cross-examined on the veracity or reliability of his evidence. Cross-examination directed only to credibility might lose much of its force

if the line was disclosed in advance, thus weakening the opportunity for the assessment of credibility by the jury.

47. In his concluding remarks Lord Hope referred to R. v. Williams (Michael) (unrep., 15th April, 1994) and R. v. Seymour [1996] Crim.

L.R. 512. In each of these cases the Court of Appeal had rejected an argument that the prosecution should disclose evidence

undermining the credibility of a witness supporting a defence alibi. In Williams the Court had described as “absurd” the submission that

if the prosecution had found material that went to disprove an alibi it should adduce it in the prosecution case. In Seymour the Court

had also used the word “absurd” with reference to the proposition that the prosecution was obliged to disclose the fact that an alibi

witness had made a prior inconsistent statement.

48. It is relevant to note that R v. Brown was heard together with another case about disclosure, R. v. Mills and Poole [1998] A.C.

382 (mentioned in the introductory part of the speech of Lord Hope). Judgment in Mills and Poole was delivered on the same day as

Brown and resulted in the court overturning R. v. Bryant and Dickson (1946) 31 Cr. App. R. 146, which had established a rule that

while the prosecution must disclose the existence of a witness whom it did not consider credible, it was not obliged to disclose the

statement made by that witness. The reason for refusal of disclosure of such statements was that the prosecution generally

preferred to keep the statement in reserve for cross-examination in the event that the witness was called by the defence.

49. The speech of Lord Hutton refers to Williams and Seymour, and points out that the reason that the evidence relating to the

credibility of the defence witnesses in those cases did not have to be disclosed was because it did not come into the category either

of material that might assist the defence or of material that might undermine the prosecution. It is also clear that it could not have

been led as part of the prosecution case.

50. Lord Hutton quoted with approval the following passage from the judgment of Sopinka J. of the Supreme Court of Canada in R. v.

Stinchcombe [1991] 3 S.C.R. 326:

“Refusal to disclose is also justified [by the prosecution] on the ground that the material will be used to enable the

defendant to tailor its evidence to conform with information in the Crown’s possession. For example, a witness

may change his or her testimony to conform with a previous statement given to the police or counsel for the

Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is

surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The

witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial

advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify

without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has

been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.”

51. Lord Hutton agreed, stating that the risk that disclosure might assist a defendant to tailor evidence did not outweigh the risk of

injustice created by a failure to disclose.

52. The appellant in the instant case relies in part upon the fact that Lord Hope stressed that the issue in Brown concerned defence

witnesses other than the accused person himself. It seems likely that the reason for the distinction may lie, firstly, in the fact that an

accused is afforded a level of protection against cross-examination going to bad character (and therefore credibility) that is not given

to witnesses, and, secondly, the different consequences in terms of directing a jury where an accused person is shown to have lied

on some occasion.

53. Examples of cases where the non-disclosure complaint related to the accused person, as opposed to a witness, may be found in

two judgments of the United Kingdom Court of Appeal which applied the principles of Brown with differing outcomes. In R. v. Langley

[2001] EWCA Crim 732, a police officer was being cross-examined about the reliability of a confession when he said that the

confession was given in the context of an offer to become an informant. The accused denied this. The Court of Appeal quashed the

conviction, accepting that the approach of defence counsel would have been different if they had been on notice of the evidence.

The manner in which the evidence was produced meant that there was no opportunity for a voir dire on the admissibility of the

confession, and the Court stated that it did not feel confident that the prosecution would have succeeded on the issue.

54. By contrast, in R. v. Denton [2002] EWCA Crim 272 the (perhaps surprising) case made on appeal was that the accused was a

police informant, and the prosecution had failed to disclose that fact to his legal representatives. The Court of Appeal was

unimpressed, and distinguished Langley on the basis that the officer in that case had deliberately withheld information and then used

it to throw defence counsel off-balance.

“That such had always been his intention seems clear from the fact that he had come to court armed with a

computer record which supported his version and which he produced before the jury without being asked to do so.

Plainly the accused and his lawyers were entitled to advance notice of material which a police witness had always

intended to adduce in evidence.”

55. The appellant in Denton was unsuccessful. The Court considered that the principle explained in Brown – that it was for the

defence to establish the credibility of its own evidence – applied a fortiori where the relevant information was known to the accused

himself.

The Disclosure Directive

56. In May 2012 the European Parliament and the Council of the European Union adopted Directive 2012/13/EU on the right to

information in criminal proceedings, O.J. L142/1 01.06.2012. The purpose of the Directive, as set out in Article 1, is inter alia to lay

down rules concerning the right to information of suspects or accused persons relating to their rights in criminal proceedings and to

the accusation against them. Member States were to bring into force the laws, regulations and administrative provisions necessary to

comply with the Directive by the 2nd June, 2014.

57. The recitals make it clear that the Directive sets minimum rules, and that Member States may provide a higher level of protection.

It is stipulated that the level of protection should never fall below the standards set by the ECHR as interpreted in the case-law of

the European Court of Human Rights.

58. Ireland has not introduced any new measures for the purpose of transposing the Directive. The Director of Public Prosecutions

accepts that it has direct effect.

59. Article 7(2) of the Directive requires Member States to ensure that access is granted “at least” to “all material evidence in the

possession of the competent authorities” to suspects or accused persons, whether the evidence is for or against them. Article 7(3)

provides that such access is to be granted in due time to allow the effective exercise of the rights of the defence “and at the latest

upon submission of the merits of the accusation to the judgment of a court”, although exceptions may be permitted in certain

circumstances.

60. The Directive was not considered in either the trial court or the Court of Appeal in this case, and was the subject of submission

for the first time at the request of this Court. The prosecutor submits that the requirements of the Directive are fulfilled by the rules

relating to the book of evidence and the duty of disclosure. The appellant has submitted that it underscores his submissions, while

accepting that, in the circumstances of this case and having regard to national law, it probably does not add a great deal to the

argument.

61. It seems to me that the case can be appropriately dealt with by reference to national law without in any way infringing the

Directive. In view of that position, and given that it was not referred to in the courts below, I do not propose to embark upon a full

analysis of its impact. That does not mean that it may not be of significance in another case.

Principles relating to rebuttal evidence

62. The older common law authorities applied a strict rule in relation to the introduction of rebuttal evidence by the prosecution. The

classic formulation of the rule comes from the judgment of Tindal C.J. in R. v. Frost (1839) 9 C. & P. 129:

“There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they

cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that

contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence

begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in

a civil suit, or a prisoner in a criminal case, there seems to me no reason why the matter which so arose ex

improviso may not be answered by contrary evidence on the part of the Crown.”

63. The reason for this strict approach was the general principle that all evidence on which the prosecution intended to rely as

probative of guilt should have been adduced in the course of its own case.

64. A less onerous test has on occasion been applied in the courts of the United Kingdom. In R. v. Scott (1984) 79 Cr. App. R. 49 the

Court of Appeal said that the question was whether the prosecution could reasonably have foreseen that the particular piece of

evidence was necessary to prove the case. If so, it should not wait until the defence has given evidence. It was a matter for the trial

judge as to whether that test was satisfied. It may be noted that Ryan & Magee adopt a similar formulation in The Irish Criminal

Process (Dublin, 1983).

65. This approach was approved in R. v. Grocott [2011] EWCA Crim 1962, with the Court of Appeal considering that the principle was

still valid although it had now to be applied in the context of additional rules and procedures. The rebuttal evidence was held to be

permissible in that case because there had been no reason for the prosecution to foresee the defence evidence in question. However

the Court noted that it was necessary to bear in mind that it was likely to have a particular effect on the jury if a matter was brought

out in cross-examination, when the accused had not had a chance to deal with it in his evidence in chief.

66. In R. v. Phillipson [1990] 91 Cr. App. R. 226, the accused was charged with importation of heroin. The fact of the importation was

undisputed, and the defence put forward by the accused at the trial, consistent with her police interviews, was one of duress

attributed to her former partner. When she gave evidence, the prosecution put to her some letters and photographs that appeared to

contradict her account of her relationship with the man. The defence had been given no notice of this material.

67. In quashing the conviction, the Court of Appeal observed that the defence of duress must, in the circumstances, have been

foreseen by the prosecution. The Court did not wish to be taken as deciding that the prosecution must, in all circumstances, make

part of the prosecution case any material which they might intend in certain circumstances to use in cross-examination of an

accused, but on the facts of this case it should have been. It was accepted that this would have afforded the accused an

opportunity to “trim” her evidence to fit the picture revealed by the letters, but that did not justify holding them back. The Court

said:

“The basic principle that the prosecution must include all probative material on which it intends to rely, and must

tender it as part of the prosecution case, does not form part of our law because the law wishes to help liars to tell

more convincing lies, but because an accused needs to know in advance the case which will be made against him

if he is to have a proper opportunity of giving his answer to that case to the best of his ability. The accused is also

entitled, when he decides whether or not to go into the witness box to give evidence, to know what the case is

which he has to meet. The intelligence and powers of memory and of literacy of accused people vary greatly.

Some people may exaggerate and embroider and lie even where their basic case is true.

It is better in the interests of justice that an accused is not induced, by thinking that he is safe if he does so, to

exaggerate, or to embroider, or to lie. As Waterhouse J. said in the course of argument, so to do might be to

ambush the accused. It is not, in our view, fair for the prosecution to be free to have resort to such a device.

Further, we would add, where the evidence is of great force, the proper disclosing of it may cause the accused to

plead guilty to the advantage both of the administration of justice and of the accused.”

68. An example of a case where the prosecution satisfied the test for rebuttal evidence in this jurisdiction may be found in the

judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Leahy (unrep., 14th February, 2000). The

accused had given evidence in his trial on a number of charges relating to bank drafts. Part of the prosecution case was that his

fingerprint had been found on one of the drafts. He explained this by saying that the gardaí had also questioned him about another

matter, and in so doing had produced a number of bank drafts to him. He suggested, therefore, that he must have left the print at

that time. The prosecution was permitted to adduce rebuttal evidence to the effect that the drafts produced to the accused on the

other occasion did not include the one with the fingerprint. The Court of Criminal Appeal held, in an ex tempore judgment, that the

evidence had been correctly admitted. The prosecution could not have anticipated the defence evidence and, even if they had,

would not normally have been allowed to use the rebuttal evidence as part of their case since it would have told the jury that the

accused had been investigated in respect of another offence.

69. According to Phipson on Evidence, 16th Ed., (London, 2005) the prosecution are expected to react reasonably to pre-trial

warnings of matters likely to be raised. The authors suggest that if a matter is raised in a defence statement the prosecution are

unlikely to be permitted to call evidence in rebuttal.

Rebuttal evidence and alibis – common law

70. The authorities in respect of rebuttal of alibi evidence are not entirely consistent. R. v. Liddle (1930) 21 Cr. App. R. 3 and R. v.

Flynn (1958) 42 Cr. App. R. 15 are both judgments of the Court of Criminal Appeal dealing with appeals where rebuttal evidence had

been admitted in respect of late-arriving alibis, prior to the legislation requiring notice of alibi to be given. In Liddle the Court of

Criminal Appeal applied the test as set out in R. v. Frost, and remarked that that a defence of alibi was “the commonest of all

defences”. There was nothing ex improviso about it, since it did not require ingenuity, but only common sense, to conceive that a

person who was charged with an offence might say that he was not the guilty person.

71. However, in Flynn the court expressed a sceptical view about late alibis, observing that the prosecution seldom had an

opportunity to investigate them. It held that in principle, the question whether rebuttal evidence should be admitted was a question

for the discretion of the trial judge. The views expressed on the proper approach to the question of rebuttal in alibi cases are relevant

to the instant case. Giving the judgment of the Court the Lord Chief Justice said:

“In our opinion, if in the case of an alibi evidence comes into the possession of the prosecution at a late stage, it

ought, as a general rule, to be admitted, unless the alibi has been set up earlier. If an alibi has been set up earlier

and the prosecution have had an opportunity of testing it, the presiding judge should say: ‘You have known all

about this alibi all the time. I am not going to allow you to call evidence to rebut it. You might have called any

relevant evidence in chief.’ But when the alibi is set up for the first time at the trial, even if the prosecution know

or suspect that it is going to be set up, in nearly every case they cannot know what the alibi is going to be. If it

has never been disclosed, they ought to be allowed to give rebutting evidence, which the jury may accept or not.”

72. Thus, the issue to be determined by the trial judge in such cases was whether the prosecution had had sufficient notice of the

proposed defence.

73. These authorities must, of course, be read in the light of the fact that alibi defences are now the subject of legislation in both

jurisdictions.

Section 20 of the Criminal Justice Act 1984

74. This is the provision that introduced into Irish law the obligation on the part of the defence to notify the prosecution if it intends

to call evidence in support of an alibi. If the section is not complied with, the accused may not without the leave of the court adduce

evidence in support of an alibi. It is generally accepted that the object of the legislation was to eradicate the practice of “springing”

an alibi defence at a stage in the trial when the prosecution was unlikely to be able to investigate it. The section requires the notice

to include details relating to any witnesses proposed to be called, and clearly envisages that the prosecution may make inquiries of or

indeed about them.

75. Section 20(4) provides as follows:

“Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be

given, be given before or after evidence is given in support of the alibi.”

Discussion

76. As I noted earlier, the case potentially attracts several different principles of the rules of evidence that, as is clear from the

authorities, overlap to some extent. It may be helpful to start with a closer analysis of the nature of the evidence in question.

77. The prosecutor submits that she did not intend to call the evidence as part of her case, and that it was not relied upon to place

the appellant close to the location of the offence. It went solely to “discredit” the evidence that the appellant was elsewhere on the

night. She further submits that it was “formal” evidence. I have some difficulties with this analysis, not least because it seems to be

contradicted by the position taken in respect of the Court of Appeal finding that the appellant had dropped his shield. In seeking to

uphold this finding, the prosecutor submits that that the evidence was admissible under s.1(f)(i) of the Criminal Evidence Act 1924 as

being probative evidence to show that the appellant was guilty of the offence charged.

78. For the purposes of this judgment I am prepared to accept as a reasonable proposition of law the view of the House of Lords in

Brown that it is for the defence to assess the credibility of its own witnesses without any entitlement to assistance from the

prosecution, although I would prefer to reserve a definitive view on the issue to a case where it properly arises to be determined. If it

is a correct analysis, then it follows that neither notice nor disclosure are relevant concepts in relation to evidence or cross-

examination which goes only to the undermining of the credibility of those witnesses. That is because the disclosure rules relate to

material that may be of use to the defence rather than to the prosecution. The point of that distinction lies in the fact that

disclosure relates to unused material. It is normally to be expected that the prosecution will make use of admissible material that

supports its own case, thus giving rise to the obligation to serve notice of the evidence.

79. The characterisation of the evidence as going to credibility only appears to have been accepted by the Court of Appeal. However

I think that it is incorrect. Evidence that goes solely to credit is evidence, unconnected with the facts in issue in the case, which

assists the finder of fact in assessing whether the witness is capable of belief. Thus, evidence of relevant previous convictions may

demonstrate that the witness has been dishonest in the past. Evidence of a prior inconsistent statement can point to the fact that

the witness is either lying to the court or has lied in the past, and may therefore be unreliable. Evidence of established hostility to

some party in the case may, again, cast a doubt over the truthfulness or reliability of the sworn testimony. None of these matters is

capable of adding to the weight of the evidence on a disputed issue of fact. To take the clearest example, it is beyond argument that

proof of the making of a prior inconsistent statement does not make the contents of that prior statement evidence for the purpose of

finding facts in the trial.

80. There is of course a sense in which any evidence given by a witness that contradicts the evidence of any other witness raises a

question of credibility – the finders of fact may have to decide which account is to be accepted on the basis of deciding which

witness to believe. However, that cannot mean that any single piece of evidence called to refute another piece of evidence can or

must be seen as going only to credibility. If it purports to establish a fact that is in issue in the trial, then it is evidence of that fact.

There is a significant difference between saying “You should not believe this person because we have shown that he is not a credible

person” and saying “You should not believe what this person says about X fact, because we have evidence that contradicts him”.

The second goes to proof of a substantive issue in the case.

81. In this case, there is a clear illustration of the difference. The appellant had given two accounts of his whereabouts, having told

the gardaí that he was at home but having subsequently served an alibi notice and given evidence that he was at his girlfriend’s

home. Those inconsistent accounts could legitimately be used to argue that he was not to be believed, and it would have been up to

him to provide an explanation.

82. However, the evidence of Garda O’Driscoll could not be seen as simply aimed at establishing that the appellant should not be

believed. The alibi notice made the location of the accused an issue in the case, since alibi evidence, as defined in the Act of 1984,

evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular

time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its

alleged commission. Garda O’Driscoll’s evidence purported to place the appellant at a particular location, proximate to the scene of the

offence, at a time when, according to his own evidence, he was not there. In my view it must be seen primarily as evidence relating

to a disputed factual issue, the issue being the location of the appellant during the night and early morning in question. The added

description of the evidence as “formal” is not of assistance in the circumstances.

83. There is the further consideration that, even if the analysis of the evidence as going only to credibility was correct in this

particular case, it remains a disputed piece of evidence. To say that the defence should have known about it and anticipated it is to

assume its truth, but that is not a permissible approach in terms of logic.

84. It may be that the question of credit came to occupy a disproportionate position in the appeal because the content of the

evidence involved telling the jury that the appellant had been on bail, and therefore that he had been charged with an offence other

than that before the court. In many cases, the prejudice involved in evidence of this nature can be avoided by the use of a suitable

formula either agreed between the legal representatives or ruled on by the trial judge. For example, in giving recognition evidence a

garda may avoid saying that he has previously arrested the accused by saying that he knows him from working in the area. In some

cases, however, the prejudice is unavoidable and it is a matter for the trial judge to determine whether that prejudice is outweighed

by the probative nature of the evidence.

85. In this case, the Court of Appeal considered that the appellant had already put his character in issue, by choosing to adduce the

evidence in relation to the second identification parade. That was undoubtedly a course of action that may have been risky, in terms

of the view that the jury might have taken, but it was one that did not, as a matter of fact, involve any of the statutory precursors

to the loss of the shield provided by the Act of 1924. Further, it seems to me to be illogical to say that evidence led by an accused in

a trial, based on a considered weighing up of the prosecution case as revealed to the defence, could retrospectively disentitle the

defence to notice of additional prosecution evidence.

86. The question then arises as whether the statutory provisions applicable to an alibi defence render the evidence admissible as

rebuttal without further consideration. The prosecutor contends that they do, because s.20 of the Act of 1984 does not require

disclosure of the material.

87. I consider that this is an incorrect approach. Certainly, it is clear that rebuttal evidence is contemplated by the section, and

therefore the applicability of any formulation of the common law rule on rebuttal that would have the effect of excluding such

evidence seems open to dispute. The defence is obliged to serve notice of an alibi, so it will be unlikely that the prosecution could

ever satisfy the common law rule by making the case that it could not have foreseen the alibi evidence save where the alibi notice is

served at a late stage.

88. This does not, in my view, mean that the prosecution is at large as to how it deals with the issue. There is nothing in the section

to suggest that the general principles of the well-established obligations of notice and disclosure do not apply. Looking at the express

words of the section, it seems to me that the most significant limitation on the prosecution’s freedom of action is imposed by s.

20(4). The trial judge has a discretion as to whether the rebuttal evidence should be adduced as part of the prosecution case, or left

until after the defence evidence.

89. It seems to me to be likely that the primary consideration in exercising that discretion must be whether the evidence should

properly be seen as part of the prosecution case. It will, I think, be categorised as such if it tends to positively support the

prosecution rather than simply undermining the defence. Thus, factual evidence that bolsters the facts contended for by the

prosecution should be adduced in the prosecution case. On the other hand, evidence that, for example, an alibi witness has made a

prior inconsistent statement would generally not be admissible as part of the prosecution case since it does not prove anything in

itself, and would not become relevant unless and until the inconsistent sworn evidence is given.

90. Since the parameters of the discretion conferred by s.20(4) have not been debated in this appeal I do not wish to be understood

as laying down an exhaustive list of the factors that might influence the decision. However it should be noted that the decision is one

of real importance. Depending on the facts of the case, a rather more dramatic effect can be achieved by the prosecution if the

evidence is given after the defence case, since this tends to convey the impression that the defence has just been caught out in a

lie.

91. It is also fair to point out that in many trials evidence is given as part of the prosecution case that does not directly affect core

factual issues in the case but which is called in order to close off a particular line of defence that the prosecution anticipates might

otherwise be pursued. That anticipation might arise from any source, such as statements made by the accused, communications

between legal representatives or even from an approach taken in cross-examination during the trial. Where this happens it is done, as

observed above, by way of service of a notice of additional evidence.

92. I consider that the discretion conferred by s. 20(4) must be exercised judicially, and that the issue is one on which the defence

must be entitled to be heard. An entitlement to be heard has to have some real meaning, and it seems to me to follow therefore that

both from the express wording of the section and from the general principles discussed above that the defence is entitled to notice of

the evidence. It also follows that the notice must be sufficient to enable the defence to determine whether it needs to take further

investigative steps in relation to the evidence. It may, in some cases, be sufficient that time is given for consideration of the

appropriate line to be taken in cross-examination.

93. There is also the practical fact, of considerable importance to the criminal trial system, that earlier notice of the prosecution

evidence may influence the advice given to the accused as to whether he or she should continue to maintain a plea of not guilty.

94. I do not accept the proposition that to oblige the prosecution to put the defence on notice of evidence intended to be deployed

to disprove an alibi would have the effect of weakening the impact of cross-examination and enable the defence to tailor its

evidence. It seems possible that the Court of Appeal was relying on the decision in Brown in this respect – but Brown was a case

that was about witness credibility in the relevant legal sense. Both of the witnesses had made prior inconsistent statements, and

accepted that fact in cross-examination. The decision given by the House of Lords on the same day in Mills and Poole demonstrates

that that tribunal rejected the proposition that the defence should not be given relevant information for fear that it would assist the

defence to, in effect tell better lies. In this regard I respectfully adopt the analysis in Cull, Farrell, Mills and Poole, Stinchcombe and

Phillipson. The constitutional right to know in advance the case to be made by the prosecution is not, therefore, displaced in the

operation of s.20 of the Criminal Justice Act 1984.

95. The course taken by the prosecution in this case had the result of limiting both the arguments open to the defence and the trial

judge’s options in a manner not intended by the legislature. It is clear that the judge was not inclined to refuse to permit the

evidence to be given to the jury. That may be understandable, but in the circumstances the procedure adopted by the prosecution

was incompatible with both the section and with the general principles discussed in this judgment. The result was that the appellant

was deprived of a fair trial.

96. I would therefore allow the appeal and quash the conviction.