The Supreme Court has quashed O’Sullivan’s burglary conviction, finding that the prosecution’s failure to give the defence notice of evidence intended to rebut his alibi deprived him of a fair trial.
In a judgment delivered by Ms Justice O’Malley on 8 March 2018, the Court allowed the appeal. It held that the prosecution should have notified the defence of Garda O’Driscoll’s proposed evidence before using it at trial. The Court did not decide that the evidence was inadmissible in all circumstances; it found that the way it was introduced in this case was incompatible with the applicable notice requirements and fair-trial principles.
The charge arose from a burglary in Cork’s Sunday’s Well area on the morning of 22 June 2014. The householder identified O’Sullivan as the man she encountered in her home. That identification was the principal evidence the prosecution intended to present. O’Sullivan denied involvement.
About three months before trial, the defence served an alibi notice stating that O’Sullivan had been with his girlfriend in Little Island from 4pm on 21 June until about 12.30pm the following day. At trial, after the prosecution had closed its case, O’Sullivan gave evidence supporting that account. The defence also called evidence about an identification parade connected with another burglary, seeking to show that identification errors could occur.
The prosecution then sought to call Garda O’Driscoll in rebuttal. He said he had called to O’Sullivan’s home at 11.45pm on 21 June during curfew checks and met him there. A curfew book recorded an entry placing O’Sullivan at home at that time, but O’Driscoll said he had no recollection of the night or meeting. He said he made the entry after returning to the station on the morning of 22 June. The working sheet that he said prompted the visit was not produced in court.
The Supreme Court rejected the characterisation of this evidence as going only to credibility. The alibi made O’Sullivan’s location a disputed issue, and the Garda’s account purported to place him near the burglary at a time he said he was elsewhere. The Court also rejected the argument that the defence had lost statutory protection against evidence of other alleged wrongdoing by introducing the other identification parade evidence.
Under section 20(4) of the Criminal Justice Act 1984, a trial judge has discretion over whether evidence intended to disprove an alibi is heard during the prosecution case or after the defence evidence. The Court said that discretion must be exercised judicially, with the defence entitled to be heard. That required notice sufficient to let the defence consider whether further investigation or other steps were needed. The Court concluded that the prosecution’s procedure restricted the defence’s options and the trial judge’s choices. It therefore quashed the conviction.