Director of Public Prosecutions v Bonney (Unapproved)

Factual and Procedural Background

This appeal arose from the Appellant’s conviction (17 April 2023) in the Special Criminal Court for an offence under s. 72 of the Criminal Justice Act 2006 (as amended). The prosecution case concerned a gang-related fatal shooting at The Hotel in The City (5 February 2016) and the subsequent getaway involving a convoy of vehicles. The Appellant was alleged to have driven (and thereby provided access to) a black SUV used in connection with the operation. The Appellant’s principal defence at trial was that he was not the driver at material times, relying on testimony from two defence witnesses.

The Special Criminal Court convicted the Appellant and imposed an eight-and-a-half year sentence (12 May 2023). The Court of Appeal dismissed the appeal ([2025] IECA 239). Before the Supreme Court, the only live ground concerned whether the trial court erred in allowing the prosecution to call a witness to give rebuttal evidence, where the underlying objections had not been pursued at trial and were raised (in substance) for the first time on appeal.

Legal Issues Presented

1. Whether, applying People (DPP) v Cronin (No 2) [2006] 4 IR 329, the Appellant could advance on appeal objections (not taken at trial) concerning (i) the definition of “evidence in support of an alibi” in s. 20(8) of the Criminal Justice Act 1984 and (ii) the admission/timing of rebuttal evidence.
2. The proper interpretation of “evidence in support of an alibi” in s. 20(8) of the Criminal Justice Act 1984.
3. Whether the prosecution rebuttal evidence was properly admitted under s. 20(4) of the Criminal Justice Act 1984 in response to the defence alibi witness who was the subject of an alibi notice.

Arguments of the Parties

Appellant's Arguments

• The trial court wrongly treated one defence witness’s testimony (identifying a third party as the driver) as “alibi evidence” within s. 20(8), even though it did not address the Appellant’s location.
• Because the testimony was mischaracterised as alibi evidence, the prosecution witness should not have been called in rebuttal under s. 20(4).
• Applying principles discussed in People (DPP) v. O'Sullivan [2018] IESC 15, the rebuttal evidence did not properly rebut the defence evidence, went beyond credibility, and should have been led in the prosecution case; adducing it after the defence closed was said to be unfair.
• The Cronin bar should not prevent the point being taken on appeal where it went to the essential justice of the case; alternatively the threshold was said to be lower because the point was partially raised at trial, relying on People (DPP) v. Connorton [2023] IESC 19 and People (DPP) v. Shahzad Hussain [2014] IECCA 26.

Respondent's Arguments

• The Appellant did not object at trial and could not raise the point on appeal absent the “flagrant denial of justice” threshold in Cronin.
• On the merits, the relevant defence testimony fell within s. 20(8) (emphasising “tending to show”), and the rebuttal evidence was properly admitted under s. 20(4).
• The rebuttal evidence was directed to issues introduced by the defence alibi notice and was not part of the prosecution’s core case; the defence had the rebuttal witness statement in advance and raised no objection.
• People (DPP) v. Cahill [2001] 3 IR 494 was relied upon in support of the contention that the prosecution was entitled to treat this as rebuttal material rather than as part of its case-in-chief.

Table of Precedents Cited

Court's Reasoning and Analysis

(1) Interpretation of s. 20(8) (“evidence in support of an alibi”)

• The Court analysed the statutory procedure in s. 20, noting it requires advance notice of alibi evidence and contemplates rebuttal evidence timing under s. 20(4).
• Although the Court accepted the Appellant’s submission that s. 20(8) should be interpreted strictly (because it restricts defence rights by imposing a notice obligation), it held the outcome followed from the “clarity of the wording” rather than any interpretive presumption.
• The definition requires evidence tending to show that the accused was not, or was unlikely to have been, at the scene by reason of the accused’s presence at another particular place/area at a particular time. The Court described this as “concerned with geography”: evidence placing the accused in location A such that the accused could not, or was unlikely to, be in location B (the crime scene).
• Relying on R v. Johnson [1995] 2 Cr App R1, the Court held that evidence that goes no further than saying the accused was not at the scene (without placing the accused elsewhere) is not alibi evidence within the statutory definition.
• Applying that construction, the Court held that the defence testimony identifying another person as the driver “had nothing to say about where the [Appellant] was” at the relevant time and therefore was not “evidence in support of an alibi” under s. 20(8). The Court rejected the Respondent’s reliance on the opening words “tending to show” as expanding the definition beyond the controlling requirement of presence elsewhere; those words merely indicate the evidence need not be conclusive.

(2) Rebuttal evidence under s. 20(4)

• Having concluded that one defence witness’s testimony was not alibi evidence, the Court accepted that it could not be “disproved” as alibi under s. 20(4). However, it then examined whether the rebuttal witness was properly called in response to the defence witness who was the subject of an alibi notice.
• The Court found the rebuttal testimony did counter the alibi-notice witness’s account: it made it “much less likely” that the third party drove the relevant vehicle as described and also potentially undermined the witness’s reliability regarding that third party’s driving habits.
• On fairness and sequencing, the Court held there was no unfairness in calling the rebuttal witness after the defence closed where (i) an alibi notice had been served, (ii) the defence had the rebuttal witness statement the day before the evidence and had time to consider it, and (iii) no objection or claim of surprise/disadvantage was made at trial. The Court further observed that the risk associated with the prosecution closing the evidence was reduced in a judge-only court (the Special Criminal Court) compared with a jury trial.
• The Court rejected the argument that the rebuttal evidence should have formed part of the prosecution case: the prosecution case concerned the Appellant’s movements, not the third party’s whereabouts or vehicle; the rebuttal evidence “only became relevant” because of the defence alibi-notice evidence.

(3) Raising the points for the first time on appeal: application of Cronin

• The Court held that neither the s. 20(8) point nor the rebuttal/timing objection was raised before the Special Criminal Court. A brief exchange about whether a notice was required did not amount to obtaining a ruling on admissibility, nor did it support the contention that counsel was “put off” pursuing objections.
• Applying Cronin and related authorities (including Limen), the Court emphasised that parties must raise issues at trial so the trial court can rule and, if necessary, remedy any problem; failing to do so and then alleging unfairness on appeal undermines the trial process.
• The Court noted the absence of an explanation for the omission (beyond the rejected “partial raising” claim). It concluded that leave to argue the new points was not required in the interests of justice.
• Although the Court agreed with the Appellant on the correct interpretation of s. 20(8), it held that refusing leave to run that point as a ground of appeal caused no injustice because: (i) the rebuttal evidence was properly admissible in response to the alibi-notice witness in any event; and (ii) the trial court’s conviction did not depend on the rebuttal evidence, as it relied on an independent circumstantial case and had already rejected the defence witnesses’ credibility on multiple grounds.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the order of the Court of Appeal, including its refusal (applying Cronin) to allow the Appellant to advance new arguments not properly raised at trial concerning s. 20(8) and rebuttal evidence.

The Court nonetheless addressed the interpretation of s. 20(8) due to its general public importance, holding that “evidence in support of an alibi” requires evidence placing the accused at a different place/area at the material time, not merely evidence suggesting non-presence at the scene. The direct effect was that the Appellant’s conviction remained undisturbed; the Court considered that, even if the contested evidential points had been resolved in the Appellant’s favour at trial, it would not have changed the outcome on the facts as found by the Special Criminal Court.