Supreme Court allows appeal to set aside guilty verdict due to prosecutorial misconduct and prejudicial cross-examination.

THE SUPREME COURT

528/04

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

McCracken J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

-v-

D. O.

RESPONDENT

JUDGMENT delivered the 8th day of March, 2006 by Murray C.J.

1. This is an appeal from an Order of the Court of Criminal Appeal which certified two points of law pursuant to s. 29 of the Courts of

Justice Act, 1924 for the purposes of an appeal to this Court. The facts and circumstances of the case are fully set out in the

judgment of Mr. Justice Hardiman including those related to a substantial part of the cross-examination of the accused at the trial by

prosecuting counsel. I do not think it necessary to repeat those facts and limited reference to them will suffice. An issue concerning

the nature of that cross-examination arose in the appeal before this Court which enables and in my view requires the Court to set

aside the verdict of the jury on grounds arising from that issue and it is unnecessary to address the other points of law.

2. On any consideration of the nature and course of the cross-examination of the accused by counsel for the D.P.P., as outlined in

the judgment of Mr. Justice Hardiman, one is driven to the conclusion that the jury were improperly influenced by prejudicial

questioning and by innuendos that had no admissible or indeed evidential basis.

3. It has long been laid down that the duty of prosecuting counsel is not to obtain a conviction at all costs. Such counsel should not

regard himself, or herself, as appearing for a party. He or she should present all relevant evidence to the jury fairly and objectively.

Prosecuting counsel is, of course, entitled to present the case for the prosecution thoroughly and firmly and highlight the strength of

the prosecution’s case or the weakness of the defence. The duty of prosecuting counsel to act fairly and objectively has long been a

requirement of the common law system generally in which criminal trials are conducted in accordance with an adversarial procedure.

As far back as 1865 in R. –v- Puddick (1865) 4 F & F 497 at 499, and English Reports 176, 662, it was stated that counsel for the

prosecution “are to regard themselves as ministers of justice”. This was reiterated in R. –v- Banks (1916) 2 KB 621, 623 by Avory J.

when he cited with approval the aforementioned authority in stating that counsel for the prosecution should regard themselves as

ministers of justice “assisting in its administration” rather “than as advocates”. More recently the standards to be observed by

counsel for the prosecution were referred to by the Supreme Court of Canada in Boucher –v- The Queen (1954) 110 CAN CC 263 at

270:

“It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a

jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see

that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it

must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty

than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an

ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

4. In very recent times these duties of prosecuting counsel were reflected in paragraph 9.19 of the Code of Conduct of the Bar which

states:

“It is not the duty of a prosecuting barrister to obtain a conviction by all means at his command but rather he shall lay before

the jury fairly and impartially the whole of the facts which comprise the case for the prosecution and shall assist the Court

with adequate submissions of law to enable the law to be properly applied to the facts.”

5. The observance of appropriate standards does not mean that the prosecution is in any way inhibited from presenting its case at its

fullest strength or cross-examining an accused or witnesses for the defence with the fullest vigour or robustness appropriate to the

context of the trial.

6. The principles governing the conduct of prosecutions are not established simply for the benefit of the defence but in the interest of

society as so to ensure that a trial is fair, that the risk of an innocent person being convicted is avoided, and that confidence in jury

verdicts is maintained.

7. There is also a duty on the trial judge to ensure that these standards are observed so as to ensure that the trial is conducted in a

proper manner which is fair to both prosecution and defence. If counsel departs from accepted standards of conduct the trial judge

must immediately exert his authority to require that they be observed. The duty of the trial judge for this purpose is not in any way

dependent on an objection by counsel who, at least in certain circumstances, may feel that an overt objection would risk

exacerbating the adverse affects of an improper cross-examination on the jury.

8. I have come to the conclusion in this case that the verdict of the jury should be set aside on the grounds that there were such

departures from the standards of proper practice to be observed by counsel for the prosecution in this case as to deny the accused

the substance of a fair trial.

9. In Randall –v- The Queen (2002) 1 WLR 2237 in a judgment delivered by Lord Bingham, the Judicial Committee of the Privy Council,

in addressing the duties of counsel in criminal trials, stated:

“While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may

properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before

the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of

insults between counsel. Any disparaging comment on a witness or a defendant should be reserved for a closing speech. …

Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury.”

10. These considerations also apply in this country.

11. Not all of those elements were present in this case. But there was certainly significant elements of the cross-examination which

were intimidating, disparaging and, if not personally vilifying, demeaning. As already mentioned it is not necessary to repeat the

details of the cross-examination as referred to in the judgment of Mr. Justice Hardiman. I do, however, find it necessary to refer to

some examples such as the comment in the form of a question “You don’t seem to have many erections?” The question “Do you

masturbate?” and later on “Now back to masturbation, when did you last masturbate?” The demeaning nature of these questions

was underscored by their irrelevance to the issues which the jury had to decide. The accused was also cross-examined on the basis

that his involvement with the scout movement suggested that he “had a colossal appetite for engagements involving boys” and that

this involvement was part of the ‘profile’ one would expect to find of a person who was a sexual deviant or pervert. Apart from the

fact that general evidence as to an alleged criminal disposition of an accused, or a ‘profile’ to that effect, is inadmissible in law there

was no evidential basis before the jury for such an inference being drawn from the accused’s involvement in the Boy Scout movement

nor any as to what the ‘profile’ of such a deviant or a pervert might be. None of the offending elements of the cross-examination

could be justified by the assertion of counsel that he was taking issue with a statement of the accused that he was heterosexual

assuming that to have been relevant, which is itself questionable. The offending part of the cross-examination was replete with

impermissible innuendos as to the accused’s profile or disposition. If it was not by those means calculated to prejudice the jury, it can

only have had that effect. There was direct evidence from witnesses alleging that the accused had committed the offences with

which he was charged. That was the essence of the prosecution’s case and on which it rested. The accused vehemently denied the

charges and asserted his innocence. It was all a question of credibility for the jury to assess on the basis of the evidence lawfully

tendered. The cross-examination, given its nature and extent, can only have distracted and prejudiced the jury in its ability to reach

a fair verdict based on the real and admissible evidence placed before them. It is, to say the least, most unfortunate that this

occurred.

12. That is not to say that every inappropriate question, comment or intervention by prosecuting counsel could be regarded as a

basis for calling in question the ability of a jury to try a case fairly. In the sparse instances where such slippages do occur they may

have little impact on the course of the trial and in any event can usually be dealt with either by a ruling of the trial judge, in the

presence or absence of the jury, or by an appropriate direction to the jury. Criminal trials take place on a daily basis in our Courts in

which the case for the prosecution is and can be presented professionally to their full strength in accordance with the standards to

which I have referred. This is a rare case and appears to be a singular lapse by counsel from the standards normally observed.

13. However, where there is a gross departure from these standards by a prosecutor which has not been or which was incapable of

being addressed by appropriate directions by the trial judge to the jury a court of appeal will have little option but to set aside a

guilty verdict. Unfortunately this is such a case. In my view the jury could only have been prejudiced in their task by the tendentious

nature and content of a significant part of counsel’s cross-examination. Accordingly, I would allow this appeal and set aside the

verdict of the jury. A retrial will not be ordered having regard to all circumstances of this case, which include the fact that the

applicant has substantially served his sentence when the standard rate of remission is taken into account and the fact that the

evidence of two witnesses relied upon in the trial in this case was found by a jury in a subsequent trial, on other charges relating to

those witnesses, as not being sufficient to entitle them to give a verdict of guilty.