D.P.P.v Mark Lacy

Factual and Procedural Background

The Applicant was convicted by the Dublin Circuit (Criminal) Court on 28th January 2005 of assault causing harm under section 3 of the Non Fatal Offences Against the Person Act, 1997, and sentenced on 4th February 2005 to three years imprisonment, with the last twelve months suspended. The charge arose from an incident on 5th January 2003 at Maynooth Road, Leixlip, County Kildare, where the Applicant allegedly assaulted the injured party by delivering a head-butt causing injury requiring five sutures.

The initial trial resulted in a hung jury, and the Director of Public Prosecutions directed a retrial before a different judge with new counsel. At retrial, the Applicant was found guilty and sentenced. The Applicant sought leave to appeal against conviction and sentence, initially refused by the trial court, but legal aid was granted for the appeal.

The core factual dispute concerned conflicting versions of the altercation outside a nightclub in the early hours involving the Applicant and the injured party, with differing accounts of who was the aggressor. The prosecution's case was supported by statements from the injured party and his friends, while the Applicant's version was supported by a witness whose evidence contradicted the prosecution's account.

Legal Issues Presented

1. Whether the trial judge erred in law by allowing the prosecution to remove a witness from the book of evidence without calling or tendering him, thereby forcing the witness to be called by the defence.
2. Whether the prosecution failed to satisfy the standard of proof such that the case should have been withdrawn from the jury.
3. Whether the verdict was against the weight of the evidence.
4. Whether the conviction was unsafe and unsound in all the circumstances.

However, the appeal focused solely on the first issue regarding the removal of the witness from the book of evidence and the impact on the safety of the conviction.

Arguments of the Parties

Applicant's Arguments

• The trial judge erred in permitting the prosecution to remove a witness from the book of evidence without calling or tendering him, forcing the defence to call the witness.
• This procedural decision rendered the conviction unsafe.

Prosecution's Arguments

• The witness in question was unreliable because his name was provided to the Garda Síochána by the Applicant after the event.
• The witness’s evidence contradicted that of other prosecution witnesses and was consistent with the Applicant’s version.
• Calling this witness would have subjected the prosecution to criticism for presenting inconsistent evidence within its own case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined whether the prosecution’s discretion to call witnesses named in the book of evidence is absolute or subject to judicial oversight. It affirmed that while the Director of Public Prosecutions and prosecuting counsel retain discretion over calling witnesses, this discretion must be exercised fairly and in the interest of justice, and may be subject to intervention by the trial judge if exercised improperly.

The Court considered the reasons given by the prosecution for not calling the witness: unreliability based on the witness being identified by the Applicant and inconsistency with other prosecution witnesses. The Court found these reasons insufficient, noting that the witness’s statement was internally consistent, aligned with the Applicant’s account, and that the mere fact of inconsistency with other prosecution witnesses did not render the witness unreliable.

The Court emphasized the constitutional guarantee of a fair trial and due process, highlighting that removing a witness from the book of evidence without good reason was unfair, especially as it shifted the witness’s perceived role from prosecution to defence, potentially prejudicing the Applicant.

Considering the circumstances of the offence, the prior hung jury, and the procedural history, the Court concluded that the trial judge erred in permitting the prosecution to omit the witness from being called or tendered, thus rendering the conviction unsafe.

Holding and Implications

The Court granted the Applicant leave to appeal, treated the application as the hearing of the appeal, allowed the appeal, and held that the conviction was unsafe and unsound. The conviction was quashed.

The Court declined to order a retrial, taking into account the Applicant’s time served and remand period.

No new precedent was established; the decision reaffirms existing principles on prosecutorial discretion and fair trial rights in the context of calling witnesses from the book of evidence.