Title:	Director of Public Prosecutions -v- Colbert
Neutral Citation:	[2016] IESC 69
Supreme Court Record Number:	348/2013
Court of Appeal Record Number:	CCA 2011 204
Court of Appeal Record Number:	CCA 2011 204
Date of Delivery:	11/28/2016
Court:	Supreme Court
Composition of Court:	Denham C.J., O'Donnell Donal J., Clarke J., Charleton J., O'Malley J.
Judgment by:	O'Donnell Donal J.
Status:	Approved
Result:	Appeal allowed
Judgments by Link to Judgment Concurring O'Donnell Donal J. Link Denham C.J., Clarke J., Charleton J., O'Malley J. Charleton J. & O'Malley J. Link Denham C.J., O'Donnell Donal J., Clarke J.

THE SUPREME COURT

1 This is in my view, an unsatisfactory case from the position of almost all the participants, and indeed the public interest. In a broader context it bears scrutiny as an example of many of the difficulties which can be encountered in the criminal justice system. In relation to the narrow issue raised on this appeal I agree with the joint judgment of Charleton and O’Malley JJ and the disposition of the case they propose. I wish to add something on the question of the interpretation in this case of the decision in DPP v Cunningham [2002] 2 IR 715.

2 The critical feature of this case is that when the appellant was sentenced on the 15th of July, 2011 (in what I will call “Case 2” because it is later in time), he was at the time a man who had a previous conviction for a related and more serious offence (which I will call “Case 1”) which was closely connected to this case. It is clear that the existence of both the previous conviction and the sentence imposed were important factors by the time the trial judge came to consider sentence in Case 2 on the 15th of July, 2011. First, it was entirely relevant to sentence that the convicted man had, at that point, a previous conviction related in nature, time and fact to the offence for which he had just been convicted. Second, at the level of practicality, the fact that a lengthy prison sentence had been imposed in Case 1 meant, that unless the judge in Case 2 imposed a sentence consecutive on that sentence, then the sentence in Case 2 was not going to result in a single day more being served as a result of the conviction. For the same reason any question of the commencement date of the sentence in Case 2 was somewhat academic, since whatever date was chosen (the date of conviction, 15th July, 2011, or the date he went into custody, both on remand on this charge, and to serve sentence on Case 1 (the 5th of February, 2010) or some date in between) the sentence in Case 2 would have expired before the expiry of the sentence in Case 1. In the circumstances, the imposition of the sentence must have appeared largely an exercise in marking the significance of a second conviction. No one now suggests that the sentence of four years imposed was excessive nor on the facts as they were on the date of that sentence, that the judge was in anyway in error not to backdate the sentence. If anything, there was an argument for a lengthier sentence or for making a short sentence consecutive on the first sentence. In substance therefore, it can be said that the trial judge on the information available to her made no error which would have required to be addressed by a Court of Appeal. If the appeal against severity was heard the following day it would, in all probability have been dismissed.

3 However, the convicted man appealed the conviction and sentence in both cases. In the events that transpired, he withdrew his appeal against conviction in Case 2, and by the time his appeal against severity was heard by the Court of Criminal Appeal on the 15th of July, 2013, the conviction and sentence in Case 1 had been quashed, and the complainant had informed the DPP that the previous trials (note the plural) had taken too much out of her physically and mentally and she wished to get on with her life and did not want to give evidence. Accordingly the DPP had indicated her intention enter a nolle prosequi.

4 Taking a more general view, it might seem obvious that since Case 2 was still within the Court system, that the Court of Criminal Appeal should have been able to address the justice of the situation by approaching the question of the appropriate sentence for the offence in Case 2 on the basis that there were no previous convictions and taking account of the fact that he had surrendered his bail and gone into custody on these charges, albeit at the same time at which he had been required to go into custody to serve his sentence on Case 1. This is a not necessarily an easy task, but it is one regularly encountered by sentencing courts. If for example, the sequence was slightly different and the quashing of the conviction and decision to enter a nolle prosequi in Case 1 had preceded the trial and sentence in Case 2, the sentence to be imposed in Case 2 would have posed little difficulty, particularly given the level of discretion exercisable by a judge who presided at the trial and heard the evidence and submissions in relation to the sentence. In principle it is difficult to see why the Court of Criminal Appeal should not have been in a position to do the same.

5 However, it appears that some of the difficulty in this case arose from an understanding that the decision in DPP v Cunningham required that an appellate court exercising jurisdiction in a criminal field, could not interfere with a sentence imposed unless an error of principle was identified. If so, then there was a difficulty since it was difficult, if not impossible to say that the trial judge had erred in principle. What rendered the sentence potentially unjust was something which occurred after the trial judge had imposed sentence and which she could not have been aware, that is the subsequent quashing of the conviction in Case 1.

6 It is the fate of even the most important judgments to be reduced to head notes then paraphrased in a few sentences in textbooks, later perhaps reduced to footnotes in texts, and finally pithy rules of thumb expressed by practitioners. In most cases these simplified versions of sometimes complex decisions are useful for courts and participants. The rule of thumb that it is necessary to identify an error of principle before a Court of Appeal can interfere with a sentence, is normally a concise and sufficient guide for a court. It is only rarely that it will be necessary to go behind it. However, almost every important general proposition can be pressed beyond its anticipated area of application with the possibility of error. While the student might yearn for a striking judgment enunciating the clear and straight line rule of general application, the reality of the law at appellate level is more often a process of ongoing adjustment with the statement of principle almost immediately followed by a qualification. The decision in Cunningham requires some careful scrutiny, explanation, and perhaps qualification. It is clear that the trial judge did not here err in principle given the state of the facts at the time she imposed judgment. Yet few I think would consider that a refusal to consider the appropriateness of that sentence in the light of the changed circumstances would be consistent with the administration of justice.

7 It is perhaps understandable, if indeed it is the case, that Cunningham came to be interpreted as a strict rule of identification of error in principle before it was possible to adjust a sentence. That followed in part from the terms of the certified question and in particular from the first portion of the answer italicised below:

“Whether the Court of Criminal Appeal, in hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, was strictly limited to considering the state of facts existing at the date when the sentence was imposed or whether it could receive evidence relating to events or facts subsequently occurring, as regards the behaviour of the applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence.”

9 First, it is important to place the decision in its context. The particular application was to accept testimonials offered in relation to the progress of the convicted person in the prison system. This is a practice which as a matter of history was sometimes permitted as part of a broader and unprincipled approach which was almost indistinguishable from an invitation to the Court of Criminal Appeal to simply substitute a verdict it considered more appropriate (and more lenient) than that imposed at the trial. That was an approach which was correctly and firmly rejected in both judgments. Second, it must be recognised, that the case was decided in the context of the proffering of post-sentence testimonials and did not address some of the more troublesome cases such as that which is now being considered in this case. Third, it should be recognised that both judgments in the case came to the same conclusion, i.e., that the reception of the testimonials was not permitted. There is in my view less distance between the two judgments than may be popularly understood. It is necessary to consider therefore each judgment in a little more detail.

10 The judgment of Denham J. pointed out that what was then the Court of Criminal Appeal was established under s.3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act 1961, provided at subparagraph 1 that the Court should have “full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it”, and subparagraph 2 provided that the Court of Criminal Appeal had all jurisdiction which prior to its enactment had been vested in the existing Court of Criminal Appeal. The jurisdiction of the Court of Criminal Appeal was therefore described in s.34 of the Courts of Justice Act 1924 which provided that the Court of Criminal Appeal should have jurisdiction to “affirm or reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court”. Denham J. traced the proposition that the Court of Criminal Appeal would overturn the sentence given by a trial court if it erred in principle, to the decision in R v Sidlow [1908] 1 Cr. App. R. 28. She observed that a then recent edition of Archbold recorded that the Court of Criminal Appeal might, having regard to a report from a prison governor, consider that while a sentence was neither wrong in principle nor excessive in length, nevertheless reduce it as an act of mercy because of the impact of the sentence on the appellant. Ultimately she concluded that “the Court of Criminal Appeal may hear evidence of facts occurring after sentence by a trial court even if there has been no error in principle, in exceptional cases, for purposes of doing justice in the case”. She agreed with the judgment in the Australian State of Victoria, R v Babic [1998] 2 VR 79, where Brookings J.A. said:

“Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible. The suggestion that some subsequent event has made a sentence, appropriate when passed, excessive is a matter for consideration by the executive in the exercise of the prerogative of mercy, not by an appellant court … These authorities recognise … that where it is sought to establish that the sentence was excessive, evidence of events occurring after a sentence may be received by an appellate court in the exercise of its discretion in appropriate circumstances if those events may be said to be relevant, not, so to speak, in themselves, but for the light which they throw on the circumstances which existed at the time of sentence.”

11 The judgment of Hardiman J (with whom Keane CJ Murray and Murphy JJ agreed) stated that it was trite but fundamental to recall that the jurisdiction of the Court of Criminal Appeal was both an ‘appellate jurisdiction, and one that was a “creature of statute”. Although it was clear that the Court of Criminal Appeal had jurisdiction to hear fresh evidence that power must be read in the context of the nature of the Court’s jurisdiction in general. He drew an analogy with the power of the Supreme Court to hear fresh evidence in civil cases as discussed in Lynagh v Macken [1970] I.R. 180, and Murphy v Minister for Defence [1991] 2 I.R. 161. He considered that the general rule was consistent with the separation of powers since the question of whether a sentence, appropriate when passed, but in the light of subsequent events appears to be manifestly excessive, was a matter for consideration by the Executive in exercising its prerogative of mercy and not a matter for an appellate court. He approved however of the principle in R v Babic [1998] 2 VR 79 observing that the facts of that case emphasised “both the rarity of any exception and its basis in principle”. The principle identified in the Australian case was, that new evidence was related to events which can be said to be “relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence”. He concluded:

“In the light of the principles summarised above, that the Appellant is attempting to introduce at the “error in principle” stage of the appeal material which would be relevant (if at all) only at the “appropriate sentence” stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error that must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time.”

“If it were otherwise, and it was open to a sentenced prisoner to ask a court to review a sentence which is not wrong in principle on the basis of how he has got on in prison, that would be a form of review overlapping to an unacceptable degree the Executive power of commutation and remission. This power must be regarded as an exclusive one unless it is conferred elsewhere by law.”

13 However, inevitably a simplified version of the decision in Cunningham became common currency, and was succinctly expressed in O’Malley, The Irish Criminal Process, (2009), p. 952-3, para. 23.35:

“The appeal court will not interfere with a sentence unless satisfied that it reveals an error in principle … When dealing with an appeal, the Court of Criminal Appeal will confine its attention to the circumstances of the offence and the offender as they appeared at the time of sentence. Matters arising between sentence and appeal will not be taken into account.” (Referring in a footnote at this point to DPP v Cunningham).

“This rule can operate rather harshly at times, but the standard response is that the executive branch of government may take any such factors into account when deciding on application for clemency.”

“Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to taken into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally it includes an error of law.”

16 It is of some significance in my view, that the decision in Cunningham was distinguished almost immediately by a Court of Criminal Appeal which had the distinction of being presided over by Keane C.J. in the case of People (DPP) v Duffy and O’Toole [2003] 2 I.R. 192. There the defendants had pleaded guilty to possession of firearms and false imprisonment and had been sentenced to nine and seven years imprisonment respectively. Subsequently, a further defendant involved in the same incident was sentenced to six years imprisonment by a differently constituted court, the last four years of which were suspended on appeal by the Court of Criminal Appeal. There was thus a very significant disparity between the sentences imposed on three different individuals. The Court considered that the sentence on the first named appellant could be justified, on the facts of the case relevant to the first named appellant, but acknowledged that there was a significant disparity between the sentences imposed on the sentence being served by the second appellant and the defendant in the other proceedings. However, that disparity had arisen because of events (the sentencing and review by the Court of Criminal Appeal in the other defendant’s case) which had occurred after the sentence of seven years had been imposed on the second named appellant in the case. That sentence on its own terms could not be said to be an error in principle. Nevertheless the Court admitted the evidence and reduced the sentence imposed on the second named defendant by suspending the last two years of that sentence. The Court distinguished Cunningham and held it was not necessary here to demonstrate that there was an error in principle by the trial judge. Cunningham had been decided in a context of further evidence as to matters such as the state of health of the applicant or prospects of rehabilitation and was based on the fact that a court might be seen to be assuming the role of the Executive in deciding if a convicted person should be released at an earlier stage because of his present state of health or similar matters. The Court of Criminal Appeal in People (DPP) v Duffy and O’Toole considered that no such considerations arose in that case, and that therefore to have regard to the disparity in the subsequently imposed sentence, would not be inconsistent with that decision. It should be recognised, that since the Court of Criminal Appeal was bound by the decision in Cunningham, it could only distinguish it. On any view, the decision represents a significant qualification of Cunningham, at least insomuch as that case was understood as establishing some general and strict rule that an error in principle had to be identified before a court could address matters occurring subsequent to the trial, or indeed consider the sentence.

17 In the context in which it was decided it was understandable that the Court in Cunningham considered that the post-sentence behaviour in prison was not primarily a matter for the Court, since there was in place already a system of providing for remission for good behaviour under the prison rules, and an overriding executive power to commute sentences in the exercise of clemency. But in a broader context, I do not think the existence of an executive power of clemency should preclude judicial consideration of a sentence. Mercy and justice are different concepts but they are not mutually exclusive. If it can be said that a sentence is now “manifestly excessive” as was contemplated in the Australian case of R v W.E.F. [1998] 2 V.R. 385 quoted in Cunningham, and a matter is still before a court, then the existence of an executive power of clemency should not preclude a court from addressing the matter. A court’s consideration of whether the sentence is excessive, is different in nature and function to the executive consideration of clemency, and they cannot in my view be regarded as a substitute for each other. A court is bound to hear the parties submissions but only on matters which are relevant to the legal issue, to decide the case in accordance with law, and in most, if not all cases, to give reasons for its decision, sometimes in a formal judgment. It is true that the court can only decide matters which are within the proper function of the court, and cannot exercise power outside those limits. However, the appropriate sentence for the crime is normally understood to be a core function of a court. It is in my view not an answer to say therefore that there exists an executive power of clemency which may be granted in the discretion of the Executive and in which many other factors may be considered. That, in my view, cannot be a blanket justification for refusal to consider matters arising post-sentence.

18 It is true that the Court of Criminal Appeal was a creature of statute, but nothing in the 1961 Act, or the 1924 Act restricted the Court’s power in relation to sentence or in express terms, mandated a general and inflexible rule that an error in principle had to be identified. The limitation on the Court’s function flowed, as both judgments in Cunningham recognise, from the appellate nature of the jurisdiction being exercised. Appellate review is not a rehearing. It requires consideration of the transcripts of the evidence. An appellate court is normally only in a position to assess whether the decision appealed against was correct in principle. These features impose constraints on the scope of appellate review and the information which may be considered. Again, as both judgments recognise, the Court of Criminal Appeal was not unique in this regard. A clear analogy could be drawn with the jurisdiction of the Supreme Court in civil matters. However, in that field, it appears that even at the time of the decision in Cunningham, the rule on the admission of fresh evidence was less strict, and matters have developed since then.

19 Perhaps the most obvious comparison is with a personal injuries claim, in which it is contended that the personal injury suffered by the plaintiff is now much worse (or conceivably much less severe) than had been understood to be the case at the time of the trial. It is clear that as a general principle the Supreme Court (or now the Court of Appeal) will view the matter as of the time of trial and will be slow to admit further evidence when the question of the development of injuries was considered at the trial. The nature of the appellate process, the limitations on the review, the need for certainty, the limited resources available to courts, and the costs in time, effort and money involved, all require that the parties make their best effort to place all relevant material before the trial judge and furthermore must normally bear the consequences if they do not do so. An appellate court could not function if it was to be regarded as simply a second chance to have a hearing and determination of damages. A trial, whether civil or criminal, is the main event and not a trial run for the appeal. But there are circumstances where the alteration in condition is so dramatic that it would be an injustice if a court could not take account of it. There is of course an inevitable anomaly depending on the passage of time. If the change in circumstances occurs after the appellate court has dealt with the appeal, then there is in general nothing that can be done. But I do not see why that is a reason why, when something can be done about it, it is not. Finality is an important part of the administration of justice in any particular case. That is why parties must accept the final outcome. But until the outcome is indeed final, it would be wrong to adopt a rule which prevented the appellate court from addressing matters which had arisen since the trial, no matter how dramatic the effect of such matters on the assumptions upon which the trial proceeded.

20 In Fitzgerald v Kenny [1994] 2 I.R. 383, the Supreme Court had to consider circumstances in which it would admit further evidence in relation to a plaintiff’s loss of his job as a garda on medical grounds, and further evidence of the deterioration of his condition. Both O’Flaherty and Blayney J.J. approved the observations of Lord Wilberforce in the United Kingdom House of Lords in Mulholland v Mitchell [1971] A.C. 666:

“I do not think that, in the end, much more can usefully be said than, … that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that the courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”

21 This approach resonates with that adopted by Denham J. in Cunningham. I would accordingly favour approaching the case on the basis that there is a general rule against considering matters which have arisen since trial, subject however to an exception that the court should do so where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial. The potential breadth of this test may be narrowed by understanding the rationale for the rule and the exception, and therefore the object being sought to be achieved by courts in applying the test. The general rule exists because life is inherently uncertain. There are a number of variables in sentencing or in the award of damages, and in most cases those uncertainties will be built in to the assessment by the trial judge. It is only if something arises which falsifies the underlying assumptions in a fundamental way, or where exclusion would be an affront to common sense or a sense of justice that it would be appropriate to consider considering matters which have occurred since trial. It may be that these two formulations of falsifying assumptions and affront to common sense, will be coterminous in most if not all cases, but since it is impossible to anticipate all possible circumstances there is some benefit in expressing the test in this fashion.

22 In this case, in the events which have transpired, by the time the appellant was before the Court of Criminal Appeal, he was to be treated as a man with no previous convictions. Justice required that his sentence be assessed on this basis. It is in my view irrelevant that the trial judge was not to blame in any way for this state of affairs, and could not have avoided it. The Court of Appeal, before whom the appellant appeared on appeal against sentence, knew both that the appellant was to be treated as a person with no convictions, and that he was not so treated when sentenced in the trial court. Since sentence had been appealed it was in a position to adjust the sentence to reflect the facts as it knew then. I do not think it was precluded from doing so because, as it said, no error of principle had been identified. Accordingly I agree that the appeal should be allowed and with the order proposed in the judgment of Charleton and O’Malley J.J.