Witness Statements

Cases

 

People (DPP) v Cahoon

[2017] IECA 307
JUDGMENT of the Court delivered on 28th the day of November 2017 by Mr. Justice Mahon
1. The appellant has appealed his conviction on the 3rd December 2015 for the murder of Jean Quigley on the 26th July 2008 at her home in Derry, Northern Ireland. The trial commenced on the 27th October 2015 and continued for twenty days, before concluding with a unanimous jury verdict. The trial was conducted in the Republic of Ireland pursuant to s. 2 of the Criminal Law (Jurisdiction) Act 1976.

2. The trial was the third of the appellant for the murder of Ms. Quigley. The jury disagreed in the first and the conviction of the appellant in the second was earlier set aside by this Court for reasons unrelated to the issues arising in this appeal.

3. Ms. Quigley was a 30-year old, separated mother of four young children and was ten weeks pregnant at the time of her death. She had been in a relationship with the appellant between the 17th March 2008 and the 12th July 2008, when it was ended by the deceased. Attempted reconciliation, later in July 2008, was unsuccessful. In the early hours of the morning of the 26th July 2008, the appellant visited the deceased whose children were staying overnight with their father at a different address. The evidence of a taxi driver was that he drove the appellant to a point close to the deceased’s address in the early hours of the 26th July 2008, and that he was carrying a holdall bag with him. The appellant denied that he was carrying a bag.

4. Although the appellant maintained that the deceased voluntarily admitted him into her home, there was evidence of damage to the locking mechanism to the door and it appeared to have been forced open.

5. The deceased’s naked body was found in an upstairs bedroom on the 27th July 2008 by her mother who had become concerned about being unable to contact her. The cause of death was manual strangulation. Bruises were found on her head, lips, neck, chest, flank, legs, ankles and arms. Some were described as likely defensive wounds. Pieces of parcel tape were found in the bedroom on each side of the bed and in the bathroom. One piece contained blood with DNA from the deceased. Traces of the appellant’s DNA were found in the toilet bowl and on cigarette butts in the sink of the bathroom. The deceased’s DNA was also found on blood staining on a white t-shirt found in the appellant’s apartment. Vaginal swabs from the deceased also contained semen matching the DNA of the appellant. It was also established that the appellant was highly likely to have been the father of the deceased’s 10-week old foetus.

6. The appellant maintained his right to silence throughout a number of interviews conducted by gardaí in Donegal. Subsequently, he admitted having killed the deceased but maintained that he had had a row with her in the aftermath of consensual sexual activity, and that he had lost control and grabbed her, pushing her onto a bed and placing his hand on her throat after she had told him that her baby was not his and that she intended to have an abortion. He maintained that he when he left the deceased’s home he believed that she was alive and merely unconscious. He did not call an ambulance or otherwise seek assistance for Ms. Quigley.

7. Shorty after 6 a.m. on the 27th July 2008, the appellant summoned a taxi to collect him a short distance from the deceased’s home. He gave the taxi driver a false name and exited the taxi a short distance from his own home.

8. On the morning of the 27th July 2008, the appellant attended at the Letterkenny home of an acquaintance, James Casey, who subsequently made statements to the PSNI in Strand Road police station in Derry on the 29th July 2008 and on subsequent dates. These statements and their admission into evidence pursuant to s. 16 of the Criminal Justice Act 2006 are at the core of this appeal.

9. In the course of its investigation into the deceased’s death the PSNI sought the assistance of the gardaí in apprehending the appellant. He was apprehended by the gardaí in Donegal town on the 5th August 2008. He initially gave the gardaí a false name, but shortly thereafter admitted his true identity. He was cautioned and arrested. He was interviewed extensively by the gardaí, but maintained his right to silence. He did not return to Derry and was never questioned by the PSNI.
The Grounds of Appeal
10. The appellant’s grounds of appeal are as follows:

(i) The learned trial judge erred in law in admitting the statements of James Casey into evidence pursuant to Section 16 of the Criminal Justice Act 2006;
(ii) the learned trial judge erred in law in finding that the statements of James Casey were both ‘reliable’ and ‘voluntary’ within the meaning of Section 16(2)(b)(ii) and (iii) of the 2006 Act and

(iii) the learned trial judge erred in law in admitting the statements of James Casey as it was unfair to the accused and not in the interests of justice.

Section 16 of the Criminal Justice Act 2006
11. Section 16 provides as follows:
“16(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as ‘the statement’) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination:-
(a) refuses to give evidence,
(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted:-
(a) the witness confirms, or it is proved, that he or she made it,
(b) the court is satisfied:-

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(ii) that it was made voluntarily, and

(iii) that it is reliable,

and
(c) either:-

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to—
(a) whether it was given on oath or affirmation or was video recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to:-

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion:-
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.”

The Statements
12. The Court has had the benefit of reading the seven transcripts of the PSNI interviews of Mr. Casey in addition to his statements based on the said interviews.
13. Statements were made by James Casey to PSNI officers investigating the deceased’s murder. The first of these was made to Detective Sergeant Hobson and Detective Constable Dayne at Strand Road police station following Mr. Casey’s voluntary attendance at the police station on the 29th July 2008. The statement was partly audio taped and Detective Constable Dayne took notes. Mr. Casey expressed a preference to speak off tape and the audio recording was then switched off. Ultimately, a written statement was agreed by Mr. Casey and he signed each page of that statement. The statement contained a statutory declaration at its commencement which was acknowledged by Mr. Casey’s signature.

14. Mr. Casey was again invited to make a further statement on the 1st August 2008. He was interviewed by Detective Constable McKinney in Derry on that date. This interview was video recorded. He was requested to return on the 8th August 2008 and his interview on that date was again video recorded. A statement was compiled based on the interviews on both dates. It was read to Mr. Casey and he signed each page at the end of the statement. The statement also contained a statutory declaration.

15. In the course of the statements, Mr. Casey stated that the appellant had attended his Letterkenny home in the early hours of the morning of the 27th July 2008, prior to the deceased’s body being discovered, and that he was upset and shaking and stated to him that he had “done something bad” to the deceased. He told Mr. Casey that the deceased was unconscious or dazed when he had left her. He said that he had taken her forcibly upstairs and had assaulted her around her head and body and had used tape, and that he had either taped or covered her mouth to stop her screaming. Mr. Casey also gave a description as to what the appellant was wearing and also said that he had noticed spots of blood on his t-shirt. Mr. Casey gave the appellant a glass of water but did not bring him into his home. It was his understanding that he had then returned to his home in Derry.
The Trial Court’s rulings
16. Mr. Casey did not give evidence in the first two trials, as he had declined to attend at either. Following a Mutual Assistance Request to the authorities in Scotland where Mr. Casey was then residing, Mr. Casey gave evidence by live link with the trial court from Glasgow Sheriff’s Court, with Judge Jones presiding. While Mr. Casey acknowledged his signature on both statements, and also that he had met the appellant on the 27th July 2008, he claimed lack of memory regarding much of the content of both statements. Falsely, he maintained to have attended a memory clinic on referral from his GP. Following an application by the respondent to have the statements admitted pursuant to s. 16 of the Criminal Justice Act 2006, on the basis that evidence given by Mr. Casey was materially inconsistent with the statements that he had made, a voir dire took place in which evidence was heard from Mr. Casey, Detective Sergeant Hobson, Detective Constable Dayne and Detective Constable McKinney. Following detailed submissions from both sides, the learned trial judge gave her ruling on the 19th November 2015. She directed the admission of both statements pursuant to s. 16.

17. The learned trial judge’s ruling was lengthy and detailed and dealt in turn with a number of issues raised in submissions made to her. It is useful to quote some extracts from her ruling.

18. In relation to the issue of voluntariness the learned trial judge addressed the concerns of the appellant’s counsel, Mr. O’Higgins S.C., in relation to the allegation by Mr. Casey that he had been threatened by members of the PSNI. She stated:-

“The court should first of all say that it had been impressed by each of the three PSNI officers who gave evidence on this issue, Sgt. Hobson, Sgt. Dane and Constable McKinney. They struck the court as a capable, competent witnesses and each had a proper understanding of their role as interviewers. The court accepts the evidence of Sgt. Hobson that Mr. Casey was a difficult interviewee who jumped all over the place and the court having had an opportunity to see Mr. Casey can better appreciate that difficulty and the court accepts that it was for that reason that it was decided to tape his interview and later video his subsequent interviews.
When, in the course of the second interview, he mentioned that he had been threatened he was given the opportunity to have the matter investigated there and then by bringing the matter to the attention of a supervisor. He declined that opportunity. The suggestion that the threat might have been operative during the course of the interview is in the court’s view dispelled by two things: 1. The demeanour of Constable McKinney who conducted the interview, both in the witness box and in the transcripts of interview, she came across as a mild, calm, even gentle interviewer, a (less) threatening presence would be hard to imagine. Secondly, a reading of the transcripts of interview following that allegation show a free flowing engaged conversation in which there is not any sense of menace or threat. The court also takes into account that at the time of interview Mr. Casey was resided in Letterkenny, Co. Donegal. He travelled to Northern Ireland to meet the PSNI not once, but three times. The first, on the 28th July 2008, the second, on the 1st August 2008, and the third time, on the 8th August 2008 when he signed his second statement. The court has no concerns about the issues of the alleged threat and has no concerns as to the status of Mr. Casey during the course of his interviews and the court finds that the interviews were properly conducted by the members of the PSNI.”

19. The learned trial judge then addressed the issue of reliability. She said, inter alia:-
“Now, one of the matters that the court has to take into consideration in assessing reliability is the reasons given or the reason given by the witness for his failure, as it were, to give evidence and that gave rise in this case to an issue in respect of memory. On the 16th November Mr. Casey – first of all he appeared on the 10th November and gave the evidence that I have already outlined. He again outlined on the 16th November via video link from the Sherriff’s Court in Glasgow to give evidence. On that occasion he identified his statements and his signature on the pages of those statements. On this occasion Mr. Casey gave evidence for the first time that he was attending a memory clinic hospital. He stated that he suffered with depression and memory loss and that he had started to attend the memory clinic a couple of months ago. He claimed to have attended the clinic on two occasions and also stated that he was due to return this Tuesday. He stated that he had attended to see a specialist memory doctor for trials and that they had wanted to try a new treatment for him. He stated that he believed his consultations had lasted for a couple of hours. When asked by counsel for the accused whether the consultant had given him any comfort or explanation as to why his memory might be frail, Mr. Casey responded “just said to me the depression and the drink and your brother getting lost, the loss of your brother”. When asked whether had he attended the clinic or if he had been referred Mr. Casey responded “I’m getting referred by my doctor”. He confirmed that he had been complaining to his G.P. about his memory loss and that this was how his attendance at the memory clinic came about.
On the 17th November, having obtained consent from Mr. Casey and having been provided with contact details for his G.P., the Scottish prosecuting authorities contacted Mr. Casey’s named G.P. who informed them in a letter, which is presented to the court on the 17th November 2015, that he, the G.P., had no record of any complaints from Mr. Casey in regard to memory loss nor of referring Mr. Casey to the memory clinic. On the 18th November 2015 Mr. Casey again gave evidence before this court via video link with the Glasgow Sheriff’s Court. Mr. Casey confirmed his recollection of signing a consent form and providing Ms. Laura Miller of the Scottish Prosecuting Authority with the details of his G.P., Dr. Connaughton. He confirmed that Dr. Connaughton was his G.P. and stated that he had joined him a couple of months ago. Mr. Casey however on this occasion stated Dr. Connaughton had in fact not referred him but rather was going to refer him. He explained that he had provided Dr. Connaughton’s details to the prosecuting authorities as the doctor he was seeing at the time. He confirmed that Dr. Connaughton was indeed the doctor who he went to for advice in relation to his memory loss. He had attended Dr. Connaughton last week in this regard. He stated that he had never attended the memory clinic but had attempted to go to the clinic on the previous Friday, that is Friday the 13th November and had failed to find it. According to his evidence, he also attempted to attend the clinic without a referral a couple of months previously but again had been unsuccessful in finding it. He stated that he had become worried about his memory, in the week of the 13th November, three days before first giving evidence as he had got depressed. He stated that he forgets things such as appointments and that his partner is in the practice of leaving notes for him on the fridge to assist him with his memory problems. Mr. Casey played an audio voicemail to the court from his mobile phone which appeared to be a women from the Glasgow Memory Clinic returning his call. The time and date of that message was not played to the court but Mr. Casey gave evidence that it had been left on the 8th November 2015 at 9.28 a.m., the 8th November was a Sunday. Mr. Casey gave evidence that he returned that call and spoke to a woman called Donna. He told her about his memory loss and his alcohol and tablet intake. According to Mr. Casey he was informed that he would have to cut down on his alcohol intake and obtain a referral from his G.P. He confirms that he attended his G.P., Dr. Connaughton, after the 8th November 2015 but stated he had no memory of attending the G.P. just of making the appointment. However, he went on to state that he had seen Dr. Connaughton in relation to a referral, that Dr. Connaughton had told him he would have to write to refer him but that he told Dr. Connaughton he would go himself. He then stated that he had first gone to Dr. Connaughton at 3 p.m. on the previous day, the 17th November, to find out about attending a memory clinic. He stated however that Dr. Connaughton never said anything in response to his request.

In this circumstance the defence at first sought a discharge of the jury to give them the opportunity to test the issue in relation to memory. However, in the overall circumstances of this case, the court is quite satisfied that Mr. Casey, that this is merely the latest in a series of attempts by Mr. Casey to avoid giving evidence and the court takes into account the fact that despite warrants and subpoenas Mr. Casey failed to turn up on two previous occasions for this trial. He turns up on this occasion and two days before he first gives evidence there is on his mobile phone a memo or an audio voicemail from a memory clinic. He then went on and clearly lied to the court about his contact with his G.P. He lied to the court about having had consultations already with the memory clinic and in the circumstances the court is quite satisfied that the issue of memory is merely the latest attempt by Mr. Casey to avoid his responsibilities to give evidence in this case.”

20. The learned trial judge then went on to deal with the issue of general unfairness. She said:-
“The court therefore the next issue that the court should address is the “general unfairness” as it were that may arise from the admission and that is what one would count as unreliability as to substance and whether in the circumstances it would be unfair to allow this evidence to be admitted in a trial.”
21. She continued:-
“While the sequence of events does alter in Mr. Casey’s telling and re-telling, the core it seems to the court doesn’t change and I think that the jury, as the trier of fact, is entitled to everyman’s evidence in this instance including this evidence.”
22. On the subject of the necessity of the evidence contained in the statements, the learned trial judge stated:-
“The final ground upon which objection was made is that as a prerequisite of admission of a statement pursuant to s. 16 the court must be satisfied that the evidence is necessary and Mr. O’Higgins, I hesitate to use the word ingeniously, but Mr. O’Higgins has submitted to the court that the evidence isn’t necessary because a verdict has previously been given in this case, albeit on the basis of a misdirection, in circumstances where this evidence was not included…In those circumstances this is the only evidence of the circumstances surrounding the killing that is in the case. It cannot be obtained from any other source and it becomes particularly material in the light of a proposed defence of provocation. So, for all of these reasons the court proposes to admit the statement.”

Submissions to this Court
23. The core of the appellant’s case is that the learned trial judge erred in admitting the statements pursuant to s 16 on the basis of their lack of voluntariness and reliability. It is contended that neither was sufficiently assessed or addressed by the learned trial judge thereby undermining the appellant’s right to a fair trial. The concluding section of the appellant’s written submissions to this court state as follows:-
“It is respectfully submitted that “the appellant’s” right to a fair trial was significantly undermined by the admission of Mr. James Casey’s statement pursuant to s. 16 of the Criminal Justice Act 2006. It is submitted that Mr. Casey is a witness on whom it is very to place any reliance on what he says in the absence of it being, in some way or another, independently confirmed. Mr. Casey gave a number of interviews regarding the appellant. Mr. Casey appeared in court by way of video link from Scotland. It should be noted that this was the appellant’s third trial in relation to the offence of murder. Mr. Casey did not attend to give evidence at the first two trials. The prosecution proceeded to prosecute the appellant and obtained a conviction against the appellant absent the evidence of Mr. Casey.
It is submitted that the manner in which Mr. Casey made his statement was unsatisfactory. The police gave evidence that they decided to tape Mr. Casey’s interview because a witness is more inclined to tell the truth when being taped. First, there is an audio recorded interview, then there is an off audio conversation, then there are six video recorded statements. That is the material taken from Mr. Casey, but the prosecution put forward a statement or two and were saying “that is his statement” but, in fact, it’s the appellant’s submission that it is not Mr. Casey’s statement. It is submitted that the second one is not Mr. Casey’s statement. It is submitted that Constable McKinney came along and read hundreds of pages of transcript and extracted material from it and presents that as his statement, but it is respectfully submitted that it is not. It is submitted that if the prosecution brought this application properly they ought to have done so on the basis of the videos and they did not do so. The statement as proposed is not a statement and certainly the second one is not, and ought not to have been considered during a s. 16 application.

Mr. Casey made a complaint that he was threatened by the police prior to giving his statement. The police witnesses readily accept that this matter should have been investigated. In the absence of such investigation, which was mandatory, it is respectfully submitted that the prosecution did not prove beyond reasonable doubt that Mr. Casey’s statements were made voluntarily and it is submitted that the court should not have been satisfied beyond all reasonable doubt that Mr. Casey’s statements were voluntarily. Further, without the mandatory investigation having been carried out, the appellant was in the unenviable position of trying to carry out the investigation seven years post allegation. It is submitted that this significantly hindered the (appellant’s) defence and dissipated his constitutional right to a fair trial.

Further it is abundantly clear from the prosecution’s concluding comments, that Mr. Casey’s statement was not necessary and as a result falls short of the threshold the prosecution must meet in a s. 16 application.

The court erred in admitting Mr. Casey’s statement. In admitting the statement, the applicant’s right to a fair hearing was extinguished. For the above reasons it is respectfully submitted to this honourable court that the verdict of guilty of murder returned unanimously by the jury in this case is unsound and unsafe.”

24. The prosecution, for its part, submits that the statutory preconditions for the admission into evidence of statements pursuant to s. 16 were satisfied, and that it had been established beyond reasonable doubt that they were both voluntary and reliable.
Discussion and decision
25. A crucial pre requisite for the admission of a statement pursuant to s. 16 is its voluntariness.

26. Mr. Casey commenced his evidence on day seven of the trial. In the course of being examined by Mr. Marrinan S.C. (counsel for the prosecution), Mr. Casey acknowledged that he had been a friend of the appellant for the previous two years. He recalled that in the early hours of the morning of the 27th July 2008 the appellant knocked at his door. Mr. Casey said he answered the door and saw the appellant, whom he described invariably as very shaken, a bit shaky and frightened or something. Mr. Casey said he thought the appellant had been in a fight or something. He said that the appellant simply wanted a drink of water and that he gave him a drink of water. He said that he spoke to him for five or ten minutes, but did not really have a conversation with him. He said that the appellant simply told him that he was out on the town..having a couple of beers. He said he then left.

27. When pressed to recall in detail what the appellant said to him, Mr. Casey said he was unable to remember. He claimed he could not remember anything else in relation to their meeting. Mr. Marrinan proceeded to seek admission of the statements pursuant to s. 16 and a voir dire took place.

28. This is not a case of a witness refusing to give evidence or denying that he made a statement. It is, rather, a case of a witness giving evidence which is materially inconsistent with it (s. 16(1)(c)). In reality it is a lack of memory case. Mr. Casey did not deny making statements to the PSNI, or, indeed, the content of those statements. When asked at the outset of his evidence by Mr. Marrinan to recall what the appellant had said to him over a period of five or ten minutes which occurred at Mr. Casey’s home in the early hours of the morning, Mr. Casey maintained that he had no memory of same. In the course of his voir dire evidence, Mr. Casey maintained he had difficulties with his memory and that he had been referred by his G.P. to a memory clinic in Glasgow. It transpired that that particular evidence was untrue and that he, in fact, had never been referred to a memory clinic.

29. The issue of memory or lack of memory also arose in DPP v. Rattigan [2013] 2 1.R. 221. In delivering the judgment of the Court of Criminal Appeal, O’Donnell J. stated (at p. 229):-

“The issue of the effect of section 16 arose in this case because in the immediate aftermath of the stabbing a number of witnesses had given statements detailing the events leading up to the killing of Mr Gavin. By the time they came to give evidence at the trial however the position had changed. While they could give precise evidence about the events of the night, when asked to describe the stabbing or the knife man, they professed to have no memory whatsoever. The trial judge refused one prosecution application that a statement of a witness be admitted under section 16 on the grounds that it was unnecessary but permitted statements of two other witnesses to be admitted under the section. The significance of their evidence was that it showed that the perpetrator, after stabbing Declan Gavin, had pursued him all the way to the door of the Abrakebabra premises. The evidence put the assailant at the door of the premises on which the blood of the victim and the handprint of the applicant were found. While there was some argument as to whether section 16 could be said to apply to a situation in which a witness had given some evidence and then professed a lack of memory on other matters, this Court is satisfied that it can be said of the two relevant witnesses here that they had given evidence that was materially inconsistent with their statements and therefore came within the terms of the statute, if it was properly applicable in the case. The central issue raised therefore was whether the section was indeed applicable.”
30. Mr. Casey alleged that he had been threatened by a policeman that he would be taken into a room and given a kicking. In the course of his evidence, Sgt. Hobson acknowledged that such a claim had been made by Mr. Casey when he said:-
“Judge, I was told by one of the other detectives that that had been made, and Mr Casey had been told at the time that if he wished to complain to the Police Ombudsman of Northern Ireland to make an official complaint against me, he was more than willing to do so. No complaint has ever been made about the conduct of that interview..”
31. The making of the allegation by Mr. Casey was also confirmed in evidence by Det. Constable Dane and Det. Constable McKinney. Mr. Casey declined to make any complaint or follow up in relation to the allegation made by him. Det. Sgt. Hobson categorically denied in his evidence that he had made any threats or inducements to Mr. Casey. Det. Constable Dane also denied that any threat had been made. There was therefore a complete conflict between Mr. Casey on the one hand and the policemen on the other hand, on the issue of whether or not Mr. Casey had been threatened. That being so, it was a matter ordinarily for the trial judge to determine if threats were made, and if they had been made, the circumstances in which they were made.
32. Having heard evidence from the various interested parties, the learned trial judge rejected Mr. Casey’s contention that he had been threatened. She said:-

“The Court has no concerns about the issue of the alleged threat and has no concerns as to the status of Mr Casey during the course of his interviews and the Court finds that the interviews were properly conducted by the members of the PSNI.”
33. The decision of the learned trial judge in relation to the issue of the allegation by Mr. Casey that he had been threatened was conducted as openly and comprehensively as was possible. Evidence relating to all the relevant issues was heard. No formal complaint was made by Mr. Casey to the Police Ombudsman or to any other senior police officer. In all the circumstances, the learned judge’s ruling in relation to the issue of the alleged threat was detailed and discursive, to use the words McKechnie J. in DPP v. Murphy [2013] IECCA 1, both of which he felt were lacking in the s. 16 ruling by the trial judge in that case.
34. In particular, the learned trial judge referred in positive terms to the interview skills of Det. Constable McKinney. She also expressed the view that the relevant interview transcripts show a free flowing engaged conversation in which there is not any sense of menace or threat.

35. In the course of her charge to the jury, the learned trial judge emphasised that the weight to be attached to the content of the statements made to the PSNI by Mr. Casey were a matter for decision by the jury. Specifically, in relation to the allegation of a threat been made to Mr. Casey, the learned trial judge told the jury:-

“And you have the — you now have the evidence, which only emerged in the trial, that if somebody makes a complaint it should — the requirement is it goes to the Ombudsman. You have heard Detective Constable McKinney give her explanation for that and you can assess that. She says she wasn’t aware of the protocol at the time; that she was a bit taken by surprise by the complaint, and she dealt with it as best she could by giving Mr Casey a number of opportunities to follow up on that complaint if he wanted to do so. So that’s the context in which you have to consider his evidence, the evidence in his statements to the PSNI. It’s a matter for you and I just wanted to make sure that you had the context in which you must approach the evidence.”
36. The mere fact that a threat was made, if indeed it was made, did not necessarily prevent the admission into evidence of a statement pursuant to s. 16. In State v. Treanor and Ors [1924] 2 I.R. 193 at 208, Fitzgibbon J. stated:
“A confession made to any person under the influence of a promise or threat held out by a person in authority, calculated to induce the confession, is inadmissible, unless it be clearly proved to the satisfaction of the Judge (whose duty it is to decide the question), that the promise or threat did not operate upon the mind of the accused, and that the confession was voluntary notwithstanding, and that the accused was not influenced to make it by the previous promise or threat.”
37. In DPP v. Shaw [1982] I.R. 1 at 60-61, Griffin J. stated:
“…the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation or excessive questioning, or by any one of a diversity of methods which have in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and a free will.”
38. Furthermore in Murphy the court remarked:-
“The motive or intention of such person is irrelevant. The test has both objective and subjective elements. Even if such inducement is found to have been made, but it did not in fact influence the mind of the person in making the statement, the same shall be regarded as having been made voluntarily and therefore is admissible in evidence.”
39. In the instant case, there is nothing to suggest that Mr. Casey was induced or threatened to say the things that were said by him in his statements, if indeed he was threatened or believed he had been threatened. In any event, and importantly, the learned trial judge having had the benefit of hearing all relevant witnesses, assessing the demeanour of the different witnesses, and viewing the video recordings made available proceeded to reach her conclusion to the effect that the statements were voluntary.
40. Considerable weight will attach to views formed by a trial judge in the course of a trial. In Murphy McKechnie J. said:-

“Notwithstanding the expanse of this power however, the developed jurisprudence shows that on certain aspects its role is more limited. One such matter relates to findings of fact made by the trial court which are later integrated into an appeal point on which the C.C.A. is asked to intervene. Case law shows that in such circumstances the appellate court is very reluctant to, and will rarely interfere with such findings. This is for much of the same reasons as apply on the civil side, namely the unrivalled advantage which the trial court has in its ability to see and hear witnesses and to observe their manner and demeanour when giving evidence. Whilst this applies to all factual conflicts it has particular resonance where not only accuracy, but also truthfulness is an issue.”
41. It is also the case that Mr. Casey attended voluntarily at the PSNI police station on three separate occasions. It involved travelling between two jurisdictions. Arguably, if he felt under threat or in any way uncomfortable as to the extent to which pressure was being applied upon him to make statements or make particular statements, he would not have freely travelled across the border to make statements when he did. He himself was not under suspicion of any involvement in the crime.
42. The court is therefore satisfied as to the voluntary nature of the statements.

43. The next issue for consideration is the reliability of the statements. This is described by Ní Raifeartaigh in Evidence in Criminal Trials as “the essential touchstone of admissibility”.

44. Section 16(3) provides as follows:-

(3) In deciding whether the statement is reliable, the court shall have regard to:-

(a) whether it was given on oath or affirmation or was video recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to:-
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement…”

45. In this case the first statement made by Mr. Casey was read over to him and its content agreed, in the course of a video recording on the 1st August 2008. The statement was partly based on video recording and partly on notes in respect of periods in which the tape recording had been switched off. The second statement, taken by Det. Constable McKinney, was based on video recording. Both statements contain statutory declarations.
46. In DPP v. O’Brien [2011] 1 IR 273, Macken J., in the course of delivering the judgment of the court said (at p. 294):-

“It seems relatively clear that the Act, in requiring that the statement be found to be “reliable”, appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure that it is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true.”
47. She also stated:-
“A consideration of later subsections of the Act of 2006 also suggests that the emphasis is on the circumstances of the making and taking of the statement itself, rather than the reliability of the content of the statement, and this appears to be in line with case law from other jurisdictions, such as the United Kingdom and Australia..”.
48. Reference was made to the fact that the video tape was switched off on one occasion. However, there is a credible explanation for that, namely, Mr. Casey himself requested that this be done. Importantly, the statements were read over and agreed to by Mr. Casey at their conclusion. Reference was also made on behalf of the appellant to certain suggested inconsistencies in Mr. Casey’s statements. It does not appear to this court that they were of a crucial nature and were well within the ability of the jury to adjudicate on. Furthermore, it is important to emphasise that had Mr. Casey given evidence in the ordinary way in relation to the contents of these statements, such inconsistencies might have been the subject of cross examination.
49. The existence of inconsistencies in a statement will not necessarily render the statement unreliable. The lengthy list of inconsistencies as identified and provided to the Court is not entirely accurate. The crucial part of Mr. Casey’s account of what the appellant had told him in the course of their early morning conversation, and as relayed to him to the PSNI interviewers, related to information as to what the appellant told him as to what had happened between himself and the Deceased. (In the appellant’s list the material in question was headed ‘Where events occurred’). Much of that information was borne out by evidence of what was found at the scene of the murder. The use of tape, for example, could only have been known by Mr. Casey if told to him by the appellant.

50. In her ruling the learned trial judge acknowledged that the statements included inconsistencies. She referred to the fact that “the sequence of events alter in Mr. Casey’s telling and re-telling…”. She felt however that the “core” of the information provided by Mr. Casey in his contact with the PSNI had not changed.

51. Extracts from the s. 16 ruling by the learned trial judge are quoted earlier in this judgment. They do not do justice to the very comprehensive manner in which the learned trial judge dealt with the issue, and in particular, the so called inconsistencies in Mr. Casey’s statements. It is often said, and is no less a fact in this case, that a trial judge is best placed to determine if the essential ingredients of voluntariness and reliability are evident in a statement sought to be admitted into evidence pursuant to s. 16. In the instant case, the learned trial judge had the opportunity (and benefit) of hearing first hand the evidence of Mr. Casey himself and the PSNI officers. The decision of the learned trial judge, while not finally determinative in the context of an appeal to this Court, nevertheless carries considerable weight.

52. The issue of the statements and their admission pursuant to s. 16 was addressed in considerable detail by the learned trial judge in her charge to the jury. She meticulously and carefully reviewed the evidence of Mr. Casey and the PSNI officers over approximately forty five pages of transcript. While somewhat laborious to so do in this judgment, it is nevertheless useful to quote from the learned trial judge’s charge to the jury in relation to this issue, and in particular to quote the following extracts:-

“Then we come on to the evidence of Mr Casey. I think it is universally acknowledged that Mr Casey has a very tenuous concept of what truth is. He’s a man who, clearly, can contradict himself in the same sentence and you have had evidence of that as we have gone through the trial. He first gave evidence on the 10th of November by video-link from Glasgow. On that day he confirmed that in July 2008 he lived at 24B Ard Ghlass in Fairgreen Park, Letterkenny, and that he had for the previous two to three years been a friend of a person called Stephen Moore, who is in fact Stephen Cahoon. He confirmed that he often drank with Mr Cahoon in the Ice Wharf Tavern on the Strand Road in Derry. He stated that he vaguely remembered the time that Jean Quigley was killed in Derry.”
“…Now, it does bring up issues, of course, of reliability because if somebody says one thing one day and another another day, then you’re going to have to be concerned about the reliability. But what I’m going to do for you now is I’m going to say the law says this evidence can go in and I’m going to remind you what the evidence was and the cross-examination on foot of it was, and then I’m going to tell you what the law says, how you should approach the evidence. But for centuries our system has depended on people getting into a witness box and being cross-examined because that’s the best test. That’s the best way of conducting a trial. But in the very particular circumstances, the law has changed now and the reality is the statement of Mr Casey made to the PSNI is evidence in the case. What weight you’re going to give to it may be another matter.”

“…So there, you have a whole load of conflicting evidence. He first gets into the box and tells you that, yes, Mr Cahoon did come to him on that night but he can’t remember what the conversation was. By the time he’s finished giving evidence to you and under cross-examination he’s telling you: “Oh, no, actually he never came at all”. And in the middle, he made two statements to the PSNI. Now what the law says is that those statements that he made are part of the evidence and you’re going to have to decide what weight you give to those statements. What the law says is in estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. So you must look at all the surrounding circumstances in which the statement was made.”

“…Now, just as we finished yesterday we were talking about the weight that you, how you approach the problem or the issue of what weight you give to Mr Casey’s statement. And it’s ultimately a matter for you, but everybody is agreed that you should approach that issue with caution.”

53. There were no requisitions made on behalf of the appellant in relation to that part of the learned trial judge’s charge to the jury concerning Mr. Casey’s statements other than the following:-
“Whilst, Judge, I do accept the Court did carefully and diligently read out the cross-examination of Mr O’Higgins of Mr Casey and did identify these matters, I think it would be appropriate that the Court would also direct the jury’s attention to Mr Casey’s demeanour, his recantation of the statement et cetera.”
54. The learned trial judge readdressed the jury in relation to this issue in the following terms:-
“Now, I’ve been asked to say a number of things to you in relation to the evidence, and Mr Casey’s evidence in particular. I think I said yesterday that first of all it’s been established that some of the things in Mr Casey’s statement are clearly true. They’ve been accepted, the going to Mr Cahoon’s flat on various days, and having tea and looking at websites and so on. But the fact that he is correct ..is shown to be correct about that, doesn’t follow that he’s correct about everything else and that he’s correct about the..what he says in the statement happened with Mr Cahoon. Because, as you’ve seen, Mr Casey is a practised liar. Whether he’s a successful liar is another matter but he is certainly a practised liar. And liars can weave truth and falsehood in the one statement. So you don’t go from that being proved correct to saying, well, he almost must be correct then about the meeting.. And, again, I think I said to you yesterday if you’re satisfied the statement was given to the PSNI, you look at the statement and you see is there anything in it that could only have come from Stephen Cahoon..And so that you have to exclude that the information could have come from any other source, and you have to be satisfied beyond reasonable doubt and that was the only potential source of the information which he gave the PSNI.”
55. The learned trial judge then went on to specifically address, again, the manner in which the PSNI took the statements from Mr. Casey. She specifically referred to the issue relating to the blood on the t-shirt and what the PSNI had apparently been told by Mr. Casey in that regard.
Conclusion
56. This was a difficult trial in many respects. Having regard to the fact that the appellant was convicted of murder in an earlier trial (that verdict being subsequently quashed by this Court) in the absence of evidence from Mr. Casey the extent of the contribution of his evidence (including his statements) to the guilty verdict in this trial is uncertain. It is however clear that the learned trial judge considered the s. 16 issue with great care before reaching the decision to admit the statements into evidence. This Court is satisfied that that decision was correct and that the requirements of s. 16 were satisfied in the making of that decision. The Court is also satisfied that the charge to the jury on this issue was both fair and comprehensive and, if anything, was weighted in favour of the appellant.

57. In the circumstances, the Court will dismiss the appeal.

DPP v Rattigan

 

[2017] IESC 72

Judgment of Ms. Justice Iseult O’Malley delivered the 12th day of December 2017
Introduction
1. This appeal, brought on foot of a certificate granted by the Court of Criminal Appeal, concerns the appellant’s conviction in 2009 for the murder of Declan Gavin on the 25th August, 2001.

2. There are two central issues in the appeal. The first is the applicability in the appellant’s case of the procedure provided for in s. 16 of the Criminal Justice Act 2006 (hereafter “s. 16” or “the section”). That provision permits, in certain defined circumstances, the use of out-of-court statements as evidence of the truth of the contents thereof. The appellant contends that the procedure was not lawfully available in his trial. His argument is that the Act, properly interpreted, did not apply to cases such as his where the relevant statements had been taken, the charge preferred and the return for trial ordered before the statute came into force. The primary submission is that the newly-introduced procedure affected his fair trial rights to such an extent that it could not be regarded simply as a change in procedural or evidential rules and therefore should, in accordance with the principles of statutory interpretation, have been presumed not to apply retrospectively.

3. The question certified by the Court of Appeal on this issue is whether s. 16 applies to statements of evidence made prior to the coming into force of the Act of 2006.

4. In an alternative submission on the section, the appellant argues that, having regard to the history of his case and in particular to what the courts had already found to be culpable prosecutorial delay, the trial judge should not have permitted the prosecution to utilise the new procedure. Although the bulk of the evidence in the case was gathered in 2001, the appellant was first charged with the offence in 2003. However he did not stand trial until 2009. This lapse in time, the reasons for which are considered below, was severely criticised by this Court in judicial review proceedings, although the trial was permitted to proceed. By the time the matter came on for trial the Oireachtas had enacted the Act of 2006. The appellant says that in that situation it was unfair to allow the prosecution in effect to benefit from its own blameworthy delay.

5. On foot of a motion brought before this Court pursuant to the rules applicable to appeals from the Court of Criminal Appeal, the appellant was given leave to argue two further grounds of appeal. Both relate to the summing up to the jury by the learned trial judge. At the trial, counsel for the accused objected to a particular passage, at the end of what was otherwise described by counsel as a “model” charge, and applied unsuccessfully for a discharge of the jury. The appellant contends that in the particular passage the judge failed to maintain an impartial and fair role; that as a result his charge was unbalanced and unfair and effectively amounted to a direction to the jury to convict; and that the judge erred in refusing an application to discharge the jury.
The procedural history of the case
6. Declan Gavin was stabbed to death in the early hours of the 25th August, 2001, in Crumlin Shopping Centre. The appellant was arrested about a week later on suspicion of murder. While he was in custody he was interviewed and finger-printed. He was again arrested and questioned on the 22nd November, 2001. Subsequent events are described in detail in the judgments in this Court in Rattigan v The Director of Public Prosecutions [2008] 4 IR 639. In those judicial review proceedings the appellant sought to prohibit his trial on grounds of, inter alia, delay. Although he was unsuccessful a clear view was taken of the delay by the High Court and Supreme Court judges.

7. Most of the proposed evidence in the case was gathered by the investigating gardaí in the latter part of 2001. The investigation file was sent to the Director of Public Prosecutions in March, 2002. The Director did not give directions for the arrest and charge of the appellant until September, 2003. After his arrest the appellant was remanded in custody pending service of a book of evidence in the District Court. However, after seven appearances in that Court the book was still not ready and on the 18th December, 2003, the District Judge struck the matter out. Almost sixteen months then elapsed before the appellant was again arrested and charged, in April, 2005. He then instituted judicial review proceedings seeking to prohibit the trial on grounds of, inter alia, delay. His application was refused in the High Court in a judgment delivered on the 30th June, 2006, by O’Higgins J. (see Rattigan v Director of Public Prosecutions [2006] IEHC 239). The appeal came on for hearing in this Court on two dates in October, 2007 and the Court gave judgment in May, 2008.

8. The dates relating to the court hearings may be considered relevant because s. 16 of the Criminal Justice Act 2006 was brought into force on the 1st August, 2006. In the circumstances, it clearly played no role in the decision of the High Court and does not appear to have been raised in the appeal therefrom.

9. The prosecutorial delay in the case was described in the High Court as “culpable and unjustified”. Geoghegan J., who gave the leading judgment in this Court, agreed. Hardiman J. described the delay as “unforgivable and unexplained”. Nonetheless, it must be stressed that the Court refused to grant prohibition. Issues raised by the appellant as to the non-availability of potential defence witnesses, the introduction of new prosecution evidence, the failure to videotape interviews with certain prosecution witnesses and adverse pre-trial publicity were not considered, on the facts of the case, to demonstrate a real risk of an unfair trial. Geoghegan J. stressed that it was the obligation of a trial judge to give appropriate directions according to the circumstances of the case.

10. The first trial of the appellant, in early 2009, ended in a disagreement. The trial with which the Court is now concerned commenced in November, 2009 and concluded with the conviction of the appellant on the 17th December, 2009.
The case against the appellant
11. The central facts of the murder are summarised in paragraph 4 of the judgment of the Court of Criminal Appeal. No issue is taken with that summary and accordingly I reproduce it here:

“In the early morning of Saturday the 25th of August, there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan Micra car. The car was described variously as grey, gold, or ‘that imported beige colour’. It was recognised as a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant described by the witnesses as the ‘knife man’. The door of the Abrakebabra was closed by the security guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described as ‘a blood like substance’, was found on the window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also identified as that of Brian Rattigan.”
12. It should be said here that the “blood-like substance” referred to was assumed, for the purposes of the earlier judicial review proceedings, to be blood but in the event was never proved to be such.
13. It is clear from this summary that, for the fingerprint evidence to be relevant to the identification of the appellant as the murderer, it was necessary for the prosecution to establish that the assailant pursued Mr. Gavin to the door of the Abrakebabra premises. That was the issue that gave rise to the admission of two witness statements under the provisions of s. 16.

14. For the purposes of the second issue, it is necessary to bear certain other matters in mind. Evidence was adduced that a Nissan Micra described as being gold in colour was found on fire some five hours after the murder at the back of the Cookstown Industrial Estate, and that it had belonged to a man named Shane Maloney with whom the appellant was friendly. One witness said that she saw Shane Maloney’s Micra outside the Abrakebabra some time earlier that evening, before the murder.

15. There was some evidence that the word “rat” was shouted immediately before the attack on Mr. Gavin; that the man with the knife may have said to Mr. Gavin something along the lines of “Deco, you rat” or “remember me, you rat”; and that while the appellant was being questioned in garda custody he had said “I don’t know where you’re getting your information from; it must be from the rats”. Counsel for the prosecution suggested in her closing that the jury were entitled to attach significance to his use of the same word as had been heard during the assault.

16. Undoubtedly, however, the most significant evidence related to the fingerprints at the Abrakebabra premises. There was evidence that the pane of glass upon which one of the marks was found had been installed a few days earlier, replacing a broken pane, and that the windows were cleaned on Mondays, Wednesdays and Saturdays. Gardaí who had interviewed the appellant said in evidence that he had been asked when he was last at the Abrakebabra, and he had replied that he had not been there for about four months. In the trial, counsel for the defence attempted to cast doubt upon the reliability of the interview notes. The interviews had taken place some eight years before the trial and had not been videotaped. However, it is clear that if the jury accepted that this answer had been given, and was a lie, the combination of that fact with the presence of the marks on the recently replaced and/or cleaned pane of glass would constitute very strong evidence against the appellant.
Section 16 of the Criminal Justice Act 2006
17. The section provides in full as follows:

(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination –
(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if –

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied –

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and
(iii) that it is reliable,
and
(c) either –
(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to-

(a) whether it was given on oath or affirmation or was videorecorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to –
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion-

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.

The application of s. 16 in the trial
18. It is clear from the transcript that this trial was marked, as the earlier inconclusive trial appears to have been, by a reluctance on the part of many civilian witnesses to give evidence. On each occasion a number of warrants were issued by the trial judge for the arrest of absent witnesses and some were held in contempt. However, the s. 16 procedure was invoked in respect of three witnesses only, and was allowed in respect of two.
19. The first of the witnesses in question, a Mr. Byrne, was called on the third day of the trial. He testified that he had been present at the scene on the night in question, and that he saw Mr. Gavin, whom he knew well. He said that he had been involved in a bit of an argument with his own companions. Asked if he saw anything happen to Mr. Gavin, he said that Declan Gavin was stabbed and everyone ran. He said that he did not see who stabbed him. He saw a man in a balaclava who was also running. He did not know if the man had anything in his hand and could not say where the man ran to. He did not see him again.

20. In the statement made by Mr. Byrne in 2001, he had said that he saw the man in a balaclava carrying a knife and running after Mr. Gavin. When Mr. Gavin ran into the Abrakebabra the bouncer had closed the door behind him. The man with the knife got as far as the door and, the witness thought, kicked it, before running away to the Nissan Micra.

21. The initial response of counsel for the prosecution was to apply to have Mr. Byrne treated as hostile. When examined in accordance with the procedure set out in People (Attorney General) v. Taylor [1974] I.R 97, the witness said that he could not remember the details of the assault on Mr. Gavin. The prosecution then sought to utilise s. 16.

22. Counsel for the defence objected, arguing, firstly, that the section was not retrospective and secondly, that if the trial judge determined that it could be utilised retrospectively, nonetheless the application should be refused in this particular case because of the culpable and unjustified prosecutorial delay. He also argued that, having regard to the particular evidence, use of the procedure was not “necessary” and was therefore not permissible under the terms of the section. As a separate argument counsel submitted that he would have no “real” right of cross-examination given the attitude of the witness. It was submitted that the mere physical presence of the witness in court was not sufficient to vindicate the fair trial rights of the accused under the Constitution, and if the Court held that it was, he intended to challenge the constitutionality of the statute.

23. The trial judge gave an immediate outline ruling in which he accepted that the s. 16 procedure was available. (A more detailed ruling was given on the following day, but it is not suggested that any difference in principle emerged.) He considered that, whether one took a literal or a purposive approach, the section applied to any person sent forward for trial for an arrestable offence. The relevant point in time was the date upon which a witness failed to give evidence as contemplated by the section. Further, the statute was dealing with an evidential rule and the general presumption against retrospectivity of legislation did not apply to procedural or evidential matters.

24. In relation to the delay, the trial judge accepted that there had been culpable prosecutorial delay. However, the trial had been allowed to proceed and, that being so, it had to proceed on the basis that both sides were bound by the rules of evidence as they applied at the time of the trial. He acknowledged the possibility that delay might, in a particular case, give rise to an issue relevant to the assessment of the interests of justice under s.16(4)(a). Therefore, while finding that there was no basis for a blanket exclusion, he left it open to the defence to argue the question of unfairness in the specific circumstances.

25. Subsequently, having heard evidence and submissions directed to the particular statement, the trial judge found that the statutory preconditions were satisfied and admitted it into evidence.

26. Although the statement was being admitted, Mr. Byrne continued with his evidence. He appears from the transcript to have had no difficulty answering questions about what he did in the aftermath of the stabbing, such as his efforts to call an ambulance and to assist Mr. Gavin inside the Abrakebabra. He was cross-examined by the defence, and answered questions about what he had been doing that evening, how much alcohol and cocaine he had taken, who he was with and so on. He again stated that he could not remember details about the man with the balaclava. The trial judge did not accede to a defence application to reconsider his ruling in the light of the answers as to the consumption of alcohol and cocaine.

27. The second witness relevant to this issue, a Mr. Farrell, was called some days later. Like Mr. Byrne, Mr. Farrell did not refuse to give evidence or to answer questions and in fact was led through some of his evidence without difficulty. He said that he had seen a Nissan Micra. He then saw and heard people fighting and started to walk away. Then he saw someone run over to the car and jump in. It left at speed. He said that he could not describe this person other than that he was wearing a balaclava, and that he could not remember the incident in any detail.

28. According to Mr. Farrell’s statement, made to gardaí in August, 2001, he had seen the man with the knife from the time he got out of the car to the time he returned to it, and had witnessed the stabbing. Like Mr. Byrne, he had put the assailant in proximity to the Abrakebabra door.

29. Again, the trial judge heard evidence and submissions and ruled that the preconditions for the s. 16 procedure were satisfied.

30. It must be pointed out that in respect of a third witness the trial judge ruled against the prosecution in a similar application, on the basis that he did not consider it to be necessary and thus the procedure was excluded by the terms of the section.
The Court of Criminal Appeal Ruling on s.16
Retrospectivity

31. The appellant relied, as he does in this Court, on the authorities dealing with the presumption that a statute does not act retrospectively unless the contrary intention is apparent. This presumption has always been considered to arise in the case of legislation effecting changes in substantive law but not to statutes that alter procedural or evidential rules. The appellant, however, based his argument on the proposition that there was no such clear distinction to be drawn, and that it was a matter of degree. It was submitted that the more serious the right affected, the more reluctant the court should be to categorise the legislation as “merely procedural or evidential”.

32. The Court of Criminal Appeal did not consider this to be a useful approach, saying:

“Apart from the inherent vagueness and lack of predictability of such a test, there is no basis for allowing the nature of a change to be determined by reference to its impact. Any change in the law, however apparently trivial, can be critical in a particular case.”
33. The Court also queried the nature of the right contended by the appellant to be affected by the section and said that it had not been sufficiently particularised. It assumed that the right in question was, implicitly, the right to a trial on a criminal charge in due course of law, and went on to say that a consequence of the appellant’s argument would be that it would be difficult to categorise any change in the criminal law as procedural or evidential. There was no support in either the authorities or the practice of legislative drafting for such an approach. The Court considered that, on its face, the statute under consideration appeared to be procedural or evidential.
34. Looking specifically at the section, the Court said that it did, in fact, only operate prospectively.

“It only applies when at a trial, which necessarily must occur after the coming into force of the Act, a witness refuses to give evidence or denies making a statement or gives evidence which is materially inconsistent with the statement previously given. Until such an event occurs the Act is not triggered, or put in a different way, the triggering event can only occur at some time in the future, and after the coming into force of the Act. Second, the language of the section appears clear and unambiguous. On its face, and without recourse to any presumptions of interpretation, it appears to apply to any such event which occurs after the coming into force of the Act.”
35. The Court of Criminal Appeal considered that any possible alternative – such as that the section applied only to offences committed after the section came into force, or to statements made after that date, or where the return for trial took place after that date – would lead to “implausible, illogical and haphazard results”. The specific submission made in this case – that the section should apply only to statements made after it came into force – would not make sense if retrospectivity was the concern, since statements made immediately after the date on which the legislation became operative would by definition relate to offences committed before that date.
36. In this appeal the appellant maintains the position that the section should not be applied to statements made before the legislation was in force. It is argued that what was in issue was the right to cross-examination. The section “profoundly affects the fundamental rights of an accused person to cross-examine witnesses and test the evidence which is relied upon to establish guilt.” It is further suggested that the section deprives an accused person of that “fundamental right”. Reference is made to the judgment of Finlay C.J. in Mapp v Gilhooley [1991] 2 I.R. 253, where the necessity for viva voce evidence given on oath or affirmation was described as a fundamental principle of the common law. The submission is that the section is therefore either properly characterised as a substantive change in that law, that should be presumed not to operate retrospectively unless clearly stated by the legislature to have such effect, or else properly seen as a procedural change that affects a right so profoundly that the court should apply the same presumption.

Unfairness

37. The appellant had, as already noted, argued as an alternative that if the section was applicable the trial judge should, nonetheless, have refused to operate it in the interests of fairness. It was submitted that permitting the prosecution to utilise the section against him was unfair because it had only come into being in the period during which the prosecution was guilty of culpable delay. The prosecution had therefore benefitted from the consequences of its wrongdoing.

38. The Court of Criminal Appeal considered this to be a flawed argument. The appellant could complain of unfairness and prejudice only if the invocation of the section was in itself unfair, since the application of the law could not normally be considered prejudicial. Here, the prejudice asserted amounted to:

“a contention that the accused was no longer able to benefit from the lamentable fact that a witness might refuse to give evidence in accordance with a formal statement of evidence provided by him or her, should that occur.”
39. In the appeal, the appellant complains that the Court of Criminal Appeal failed to deal with the issue raised. It is asserted that in refusing an order of prohibition in the judicial review proceedings, this Court had assumed that the trial judge would give appropriate directions so as to minimise the prejudice to the appellant arising from the delay. Instead, the prosecution has been permitted, as a result of its delay, to avail of an exception to the hearsay rule.
Discussion – the s.16 issue
40. I agree with the analysis of the Court of Criminal Appeal on both aspects of the issue raised in respect of the section. In the first instance, it is in my view manifestly within the category of “procedural or evidential change”. All of the authorities are agreed that the presumption against retrospectivity has no application to that category.

41. Even more to the point, it is a change that relates to trial procedure and to the application of the rules of evidence in particular circumstances that can only arise in the course of a trial, and was therefore capable of applying only to trials that took place after its enactment. As the Court of Criminal Appeal pointed out, the attachment of a particular status to witness statements made before that date would have no basis in either legal theory or practicality. The constitutionally-guaranteed fair trial rights of an accused person – and the right to cross-examine is a fair trial right – arise in the context of a trial. It is of course possible that pre-trial investigative actions can affect the fairness of a trial process, in which case a trial judge will be obliged to vindicate the rights of the accused by whatever appropriate steps are available. However, this is irrelevant to the question of retrospectivity in this case. Either the section is an unlawful attack on the fair trial rights of any person in whose trial it is invoked, or it is not. If it is unlawful, it is not legitimated by restricting it to trials where the investigation began after it came into force.

42. The appellant did not acquire any particular right in respect of any of the witness statements at the time when they were made. What he acquired was the right, once charges were brought against him, to a fair trial. That would be so whether the trial judge was dealing with witnesses who had made their statements years prior to the trial or witnesses who came forward at a later stage. In so far as the right to cross-examine is concerned, it is clear that counsel did cross-examine the witnesses and they did not, in their oral evidence, implicate the appellant in any particular way. The difference brought about by the section was that the jury were put in possession of the additional material from the written statements that placed the attacker in proximity to Abrakebabra.

43. I also agree with the analysis in the Court of Criminal Appeal judgment of the fairness issue raised in the context of prosecutorial delay. Further, I would add that the remedy proposed by the appellant – that the trial judge should have refused to operate the section – is not related to the identified culpability on the part of the prosecution in any factual or logical way. While prosecutorial delay is always to be deprecated and will on occasion have very real consequences for a prosecution, it would be absurd to establish a principle that a trial judge could compensate for delay by refusing to operate validly enacted legislation that is otherwise applicable to the case.

44. The legislation confers a power on a trial judge to refuse a prosecution application in the interests of justice. However a power of that sort is not to be used for the purpose of punishing a failure by the prosecution to carry out some part of its function with proper efficiency. In circumstances where this Court had found that there was no basis for saying that the delay meant that the appellant could not have a fair trial, the trial judge was not obliged and arguably not entitled to, in effect, throw some extra weight onto the scales in favour of the defence. A decision to permit or refuse the invocation of the section has to relate to the proposed evidence in the context of the case, to the statutory preconditions and to the impact that it may have on the fairness of the trial.

45. However I think it worth noting here that the question of delay might well, in some circumstances, give good grounds for a refusal on the part of the trial judge. For example, in a case involving civilian witnesses it is always likely that oral evidence will differ to some degree from the statements of proposed evidence contained in the Book of Evidence. Because of the process by which they are taken, written statements may have a structure, coherence and attention to sequential detail that may be absent when the witness attempts to give a narrative in oral evidence. Any significant lapse of time between the making of the statement and the trial is capable of exacerbating this situation and of impairing the accuracy of a witness’s memory in any event. This is a normal feature of human life. In my view trial judges should be careful not to permit the prosecution, in cases where it has been responsible for delay, to “improve” its evidence by invoking the section in circumstances not within the intent of the legislature.
The judge’s charge
46. The summing-up was almost entirely uncontroversial. The trial judge gave proper directions as to the applicable legal principles, including the following passage as to the treatment of circumstantial evidence:

“This is a circumstantial evidence case and that obviously raises the question, what is circumstantial evidence? Circumstantial evidence is evidence from which you the jury may infer existence of a fact in issue. It’s evidence which can be assessed, can be made subject to analysis and from which rational conclusions can be drawn in relation to a particular fact in issue or in dispute. Sometimes it’s the case that a prosecution is in a position to ask the jury to consider direct evidence. For example, if a crime is being captured on high quality CCTV footage. However, it is often the case that direct evidence of a crime is not available. The prosecution will then rely upon circumstantial evidence to prove its case or to support its case. Sometimes circumstantial evidence may constitute the entirety of a prosecution case and this is such a case. Or it may sometimes be that it makes only a part, whether large or small, of the prosecution case.
A case involving circumstantial evidence is one where the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant, which they say, when taken together, will lead to the sure conclusion that it was the defendant who committed the crime. When it comes to considering circumstantial evidence, what requires to be considered is what is its cumulative effect? One may have a situation where a combination of circumstances is established, no one of which would support a conviction, or no one of which would do more than perhaps raise some suspicion, but when they are taken together may lead to a conclusion of guilt and, indeed, may lead to a conclusion of guilt with as much certainty as human affairs are capable of. An example that is often given, and it is one that has been referred to by counsel on both sides, and example that is often given, a metaphor that is often used, is of the rope with several cords. One strand of the rope alone might be quite insufficient to sustain a person’s weight, but three or four or five or six or more stranded together may be of quite adequate strength and even the heaviest individual can trust their weight to it. And another example, and this is the one that I often think of where a prosecution case depends on various elements of circumstantial evidence, is of those little sticks that Golly Bars and Choc Ices come on, or certainly used to come on. One of those sticks alone can be snapped without the slightest difficulty whatsoever. However, if you take a bundle of those sticks and if you assemble them together, then the bundle acquires a strength which the individual sticks never had. And that bundle may indeed be completely unbreakable. So in respect of any individual Choc Ice stick or in respect of any individual piece of circumstantial evidence, the first matter which has to be considered is whether the stick goes into the bundle. In other words, when examined individually is the individual piece of evidence reliable and of value. And then the second task is to consider on the basis of the sticks that are put into the bundle how strong and unbreakable that bundle is or, in other words, when the individual pieces of the evidence that have been identified as being of value and of being reliable, are considered together, what conclusion is to be drawn.

… Insofar as a prosecution based on circumstantial evidence may and indeed will depend on a number of different elements of circumstantial evidence, the question of coincidence arises and we all know that unusual coincidences do occur from time to time and it’s only in a situation where a jury comes to the view that to treat the various matters that are actually established as pure coincidence is an affront or an insult to common sense that it would be proper to convict. And obviously, in considering the extent of the coincidence that appears to be established, considering the significance of whatever coincidence appears to be established, the jury will at all stages keep to the forefront of their mind that the accused enjoys a presumption of innocence.”

47. The trial judge then summarised the evidence without comment. When the trial adjourned over a lunch-break, such requisitions as were made by counsel were dealt with and nothing now turns upon the matters raised at that stage. The judge then summarised counsels’ closing addresses. Counsel for the defence does not take issue with the presentation of his case by the judge at that point, and it may be helpful to refer to it in some detail.
48. The trial judge reminded the jury that the defence argued that the evidence presented to them was largely worthless. It had been said that there was no evidence linking the appellant to the Nissan Micra observed at the scene, and that there was no relevance in the fact that a burned-out Micra was subsequently found. Counsel had been scornful of the evidence that someone at the scene used the word “rats” and that the appellant had used the same word as a term of abuse in the presence of gardaí – it was no surprise that someone of the appellant’s character would use the word.

49. Counsel had said that, in the absence of videotapes of the interviews with the appellant, and given the established evidence of his lack of cooperation with the gardaí, the jury should not attach significance to the disputed allegation that he had said that he had not been at the location for four months.

50. In relation to the fingerprint evidence, counsel had urged the jury not to jump to the conclusion that the substance in which the mark was found was the blood of Mr. Gavin. It was possible to be mistaken about such matters and, indeed, the investigating gardaí had made a mistake when they thought they had found blood on a car examined in the course of the investigation. Counsel had also been critical of the quality of the examination at Abrakebabra carried out by the scenes of crime team, saying that the jury had been “short changed” and was being asked to do the prosecution’s work for them.

51. The final part of the charge dealing expressly with counsel’s speech reads as follows:

“He says that there are only two verdicts open, either guilty or not guilty, that there is no halfway house, and he says that the evidence that would justify you returning a verdict of guilty is just not there. He says that such a verdict, such a conclusion, could be arrived at only as a result of speculation and by attempting to fill the gaps that have been left.”
52. Again, this is undoubtedly a fair summary of the case made by counsel.
53. Having concluded this part of the charge, the trial judge pithily summed up the case by saying:

“So, Mr Foreman, ladies and gentlemen, you have heard all the evidence, you have heard the arguments advanced by counsel on both sides, and, over the weeks that this trial has gone on, quite an amount of evidence has been offered. On the prosecution view, that evidence that is offered is more than sufficient to justify a verdict of guilty. On the defence view, too many questions are left unanswered and too many gaps remain unfilled.”
54. Again, this was uncontroversial. However it was immediately followed by the passage complained of in this appeal:
“Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr. Rattigan has been most unfortunate. He was unfortunate, in the first instance if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr. Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – “rats” – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably commonplace. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and the door are, in fact, his.
So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”

55. The jury was then given the issue paper and commenced its deliberations. Counsel for the defence requisitioned the judge at this point. He started his submission by saying that:
“until five minutes ago I would have had to describe your charge as a model of fairness and balance in terms of how you presented the legal principles, summarised the evidence and indeed summarised the closing address of both counsel.”
56. He went on:
“Having done that, your lordship then made what I can only term a second rousing and powerful speech on behalf of the prosecution by enumerating, in the manner in which you did, what can only be your view, because it was taken out of step from everything else that was done as to the unluckiness of the accused on a number of different issues, I think which perhaps numbered six or seven, which wasn’t counterbalanced in any way, except by saying, but of course, people can be unlucky and you can have unlucky circumstances and you concluded it then by suggesting that, effectively, for somebody to be so unlucky to be not guilty would be in effect an affront or an insult to your intelligence.”
57. The trial judge responded that he had said nothing of the sort, but had said that the jury could convict only if they were of the view that to regard the items listed as coincidence would be an affront or insult to their intelligence. Counsel applied to have the jury discharged. The judge refused, stating that a judge was entitled to comment and that, insofar as he had commented, he had also set out in detail the respective contentions of the parties.
58. The passage, to my eyes, leaps out at the reader of the transcript and can only have been even more striking when heard by the jury. The question is, was it within the judge’s entitlement to make such comments?

59. On appeal, it was argued on behalf of the appellant that this had been a powerful statement of the prosecution case, delivered at the end of the charge with rhetorical flourish, that in effect unbalanced the charge. Further, it was submitted that the passage first misstated the defence made in the case, imputing a reliance upon coincidence that had not been put forward, and then discredited that imputed defence.

60. The Court of Criminal Appeal did not accept this analysis. It considered that in reality, the defence put up – that there were “too many unanswered questions” – could not be separated from the question whether there were alternative explanations consistent with innocence. If the jury accepted the uncontested evidence of the appellant’s fingerprint in a red substance four inches away from the position from which the swab of Mr. Gavin’s blood was taken, and also accepted that the appellant had lied about not having been at the scene for a period of months, then the question of the sufficiency of that evidence had to be linked to the question whether there was any other explanation for it. In the absence of any positive explanation, the only logical possibility remaining was coincidence. The trial judge had not, therefore, mischaracterised the defence.

61. In discussing the broader issue of the permissible range of comment in a summing up, the judgment deals with the function of a trial judge in giving guidance to the jury as to how to deal with evidence. It is said:

“The function of a trial judge in this regard is to attempt to present to the jury the issue which it has to decide in a clear and comprehensible way. In a simple case this may involve no more than identifying what has been said on each side but in more complex cases it will necessarily involve a degree of analysis of the evidence if only to focus on the central issues, and to present what is to be considered by the jury, in an ordered, comprehensible and intelligible way.”
62. The process required the trial judge to gather and synthesise the evidence and he had done so.
“When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury.”

The authorities
63. Counsel for the prosecution has relied upon the following passage from the judgment delivered by Reading L.C.J. in R. v. O’Donnell (1917) 12 Cr. App. R. 219 at p.221:
“[I]t is sufficient to say, as this Court has said on many occasions, that a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in directing a jury, or using in the course of his summing up such language as leads them to think that he is directing them, that they must find the facts in the way which he indicates. But he may express a view that the facts ought to be dealt with in a particular way, or ought not to be accepted by the jury at all. He is entitled to tell the jury that the prisoner’s story is a remarkable one, or that it differs from accounts which he has given of the same matter on other occasions. No doubt the judge here did express himself strongly on the case, but he left the issues of fact to the jury for their decision, and therefore this point also fails.”
64. This authority (which, it may be noted, was not referred to in the judgment of the Court of Criminal Appeal) is now one hundred years old and, having regard to very many authorities in the intervening century, should be treated extremely cautiously. It is, quite simply, no longer the case that a trial judge can tell a jury that they should disbelieve particular evidence, or make any other comment he wishes provided it falls short of actually directing or seeming to direct the jury what to do.
65. Looking at a selection of judgments of the Irish and English appellate courts over the decades one can see that there has been a progressive clarification of the role of the jury as the finder of fact and of the obligation of a trial judge to respect that role. Thus, for example, in R. v. Canny (1945) 30 Cr. App. R. 143 Humphreys J. said:

“There are many decisions of this Court, and, indeed, many decisions before the existence of this Court, to the effect that in England a man is entitled to a fair trial by jury on any offence which is indictable. It does not matter how absurd the defence is, or how unlikely it is that any sensible person would pay the least attention to it. A prisoner is entitled to make his defence to the jury, and it is for the jury and not for the Judge to decide on its weight.”
66. In the 1960s the Irish Court of Criminal Appeal made the following observation on a judge’s comments, in the case of People (A.G.) v Oglesby [1966] I.R. 162:
“A judge, who states the explanation given by the accused, is entitled to comment adversely on it but we do not think that he is entitled to state it in a way which is calculated to discredit it.”
67. In Mears v. R. [1993] 1 W.L.R. 818, a decision of the Privy Council, Lord Lane said:
“The Court of Appeal took the view that the trial judge was not putting forward an unfair or unbalanced picture of the facts as he saw them. In rejecting the defendant’s submission that the comments of the judge were unfairly weighted against him, the court asked themselves whether the comments amounted to a usurpation of the jury’s function. In the view of their Lordships it is difficult to see how a judge can usurp the jury’s function short of withdrawing in terms an issue from the jury’s consideration. In other words this was to use a test which by present day standards is too favourable to the prosecution. Comments which fall short of usurpation may nonetheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge’s views or wishes. As Lloyd L.J. observed in Reg v. Gilbey (unreported) 26 January 1990:
‘A judge … is not entitled to comment in such a way as to make the summing up as a whole unbalanced…It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.’
68. Lord Lane went on:
“Their Lordships realise that the judge’s task in this type of trial is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution or the defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. Whether that is what has happened in any particular case is not likely to be an easy decision.”
69. Mears was applied by the Court of Appeal in R. v. Wood [1996] 1 Cr. App. R. 207, where it was noted that the degree of adverse comment allowed at that time was substantially less than it had been fifty years earlier.
70. In R. v. Bentley (Deceased) [2001] 1 Cr App R 21 the English Court of Appeal had the task of reviewing the historic conviction of Derek Bentley for the murder of PC Miles in 1952. One of the issues upon which the Court determined that the conviction was unsafe concerned the comments made by the trial judge on the defence, which were described as “highly rhetorical and strongly-worded.”

“The language used was not that of a judge but of an advocate (and it contrasted strongly with the appropriately restrained language of prosecuting counsel). Such a direction by such a judge must in our view have driven the jury to conclude that they had little choice but to convict; at the lowest, it may have done so.”
71. The Court expressed surprise that this aspect had not been raised in Bentley’s appeal against conviction, suggesting that it would not have been thought acceptable “even by the standards prevailing at the time.”
72. Counsel for the appellant has drawn the attention of this Court to an ex tempore ruling of the Court of Criminal Appeal in DPP v Slattery (delivered on the 4th February 2004) in which Hardiman J., speaking for the Court, described the issue in the following terms:

“In this case the learned trial judge’s deep and strongly felt disbelief of what the defendant said in evidence comes over clearly from the transcript, but the credibility of this evidence was entirely a matter for the jury and not for the judge. A judge can certainly comment in a fashion which may be helpful to the jury in making up its mind but should not present them with his or her own resolution of the facts. We think the matter is perhaps well put in Oglesby’s case, that the learned trial judge is entitled to comment on the evidence but not to disparage or discredit it. He is certainly not entitled to comment on it in such a fashion as suggests that if the jury took a different view to that of the learned trial judge they would be in grave conflict with him. It is true that the learned trial judge here more than once indicated to the jury that they were entitled to take a different view from his, and it is important that that should be done. But even if it is done, that fact does not legitimate every sort of comment, and in particular, does not legitimate gravely disparaging comments on the defence evidence of the sort made here.”
73. Although it is clear that reminders to the jury that they are free to disregard a judge’s comments will not necessarily save an otherwise unbalanced and unfair charge, failure to provide such a reminder was described as “unusual and unwise” by the Court of Criminal Appeal in the case of DPP v McGinley [2013] IECCA 7.
Discussion
74. Having regard to the transcript, I am compelled to disagree with the view of the Court of Criminal Appeal as to what the learned trial judge intended in the passage under consideration.

75. In the first place, I do not believe that it was open to that Court to describe what happened as an analysis by the trial judge of alternative explanations consistent with innocence. That is not what the judge thought he was engaged in – he made it quite clear to counsel that he considered that he had been exercising his entitlement to comment. The question is whether, in so doing, he overstepped the boundary.

76. The defence case as put by counsel was carefully limited, as no doubt he considered necessary in the circumstances. It was confined to the argument that certain matters were not proven to the required standard (as in the attempt to cast doubt on the reliability of the garda evidence that the appellant said he had not been at the scene for some months); or not capable of bearing much weight (as in a suggestion that it might be expected that the appellant would lie to gardaí, or a reminder that there were 19 other fingerprints found on the door and window that were not identified) or else were irrelevant as not being sufficiently connected to the appellant (as with the evidence relating to Shane Maloney’s car, or the red substance on the window). Overall, the argument made was that the jury should either not believe particular items of evidence beyond reasonable doubt, or should not accord them sufficient weight to convict. At no stage was there an effort to put forward an alternative explanation of the facts, if they were accepted as such. The issue was whether or not the prosecution had proved sufficient facts by sufficiently strong evidence. Having regard to the burden and standard of proof applicable in a criminal trial that was a perfectly legitimate line to take. There is no obligation on the defence to argue that there might be an innocent explanation for proven facts, where the case being made is that the facts were not proven.

77. The Court of Criminal Appeal may well have been right in saying that, if the facts were established to the satisfaction of the jury, the only other innocent explanation left was coincidence. However that does not mean that it was an explanation that had to be considered by the jury as potentially affording a defence. It was, in my view, implicit in the approach of the defence that if the jury accepted the evidence beyond reasonable doubt they would be entitled to convict. Still less does it mean that the possibility of coincidence had to be addressed as if it had in fact been argued on behalf of the appellant. It might well be that the trial judge was entitled to spell out explicitly what the logical consequences would be if the evidence was accepted. There could probably be no complaint if he had said something to the effect that if, having regard to the standard of proof and the presumption, the jury believed the prosecution evidence, they were entitled to bear in mind that it was not being suggested to them that the facts were capable of explanation by reference to the possibility of coincidence.

78. Instead, although I have no doubt that this was not his intention, the trial judge engaged in what in my view could be seen as a piece of advocacy in favour of the prosecution. It undermines the defence case by reference to an argument not made, and by subjecting that argument to sustained sarcasm. The repeated suggestion that the accused would have to be “unlucky” (eight times) or “unfortunate” (twice) in respect of each of the items of evidence mentioned, and the suggestion that the defence case depended on “unusual” coincidence cannot, it seems to me, be considered as anything other than an invitation to the jury to reject the defence case out of hand. In context, the final sentence quoted seems to me to amount to an indication that the defence case was, indeed, an affront to the intelligence of the jurors and it is perhaps not surprising that counsel understood it as such.

79. It may be noted here that the trial judge in the case of The People (Director of Public Prosecutions) v Nevin [2003] 3 I.R. 321, a case in which the evidence of the accused’s guilt of murder was largely circumstantial, used what might seem to be similar phrasing when she said to the jury:

“I want you to be sure that when you apply your minds to all the facts, all the facts which you have accepted as true, that you can come to the conclusion that to treat the matter as pure coincidence is an affront to common sense. So, you have got to work towards being satisfied that not to find her guilty would be an affront to commonsense. But keep in mind all the time that there is in this the presumption of innocence, which is only displaced when you are satisfied beyond reasonable doubt that she is guilty.”
80. The Court of Criminal Appeal in that case considered this to be an entirely appropriate direction in the circumstances of the case. However it is clear that the suggestion in relation to coincidence, and the “affront to common sense”, was made only in relation to the possible acceptance by the jury of the relevant evidence and was accompanied by a reminder of the presumption of innocence and the burden and standard of proof.
81. The issue here is not whether or not the judge’s analysis was sustainable on the evidence – it may well have been. The point is that it is for the jury to find the facts, subject to direction on legal matters from the judge. It is true that after a trial of any length some summary of the evidence will generally be necessary. That is done by the judge, since, after all, the speeches of counsel can be expected to cherry-pick as they think appropriate. The very process of summarising the evidence will involve an editorial decision by the judge as to what is potentially relevant and what is not. In this respect I consider the description of the judge’s function by the Court of Criminal Appeal to be entirely correct. It is necessary for the summary of both the facts and the issues to be clearly communicated.

82. Juries look to judges for impartial guidance that they do not necessarily expect to obtain from counsel. They tend to assume (as should be the case) that the judge will be neutral where counsel are obliged to be partisan, and will not lead them astray. There may well also be an assumption that the judge is more experienced and knowledgeable than counsel about criminal investigations and trials. As the Court of Criminal Appeal said in DPP v. McDonagh [2010] IECCA 127:

“…[i]t is self-evident that in view of the overall responsibility which a judge is called upon to discharge during a trial, a jury of lay individuals may be apt to confer on any view expressed by the judge, an importance, even a status, which may undermine the independence of their collective view, which is the hallmark of the jury system. If such was to occur, the risk of prejudice is almost inevitable. Therefore, even when a judge engages with the facts, he or she must emphasise, with particular care, that the views expressed may be entirely ignored and that, “fact”, is purely and exclusively a matter for the jury.”
83. For these reasons, the expression of what appears to be personal opinion from a judge can be far more powerful than that of counsel.
84. It is accepted that a judge may comment on the evidence in this context in order to assist the jury. Where the prosecution case is strong, there can be no objection when a fair presentation shows it to be strong. A judge is not obliged to give an artificial impression that the two sides have equally persuasive cases where they do not. However current practice would suggest that comment going beyond that is done to a very limited extent. For example, the judge might where appropriate comment that a particular issue does not truly arise from the evidence, or might point to what in his or her view is the crucial question to answer and therefore guide the jury towards the appropriate issue to concentrate on.

85. In this case, it seems to me that the impact of the passage was all the more forceful because it came at the very end of what defence counsel accepted was a “model” charge. After dealing with the law and summarising the evidence, the trial judge summarised the case being made by both sides in a perfectly fair and accurate way. To then launch into a devastating critique of the defence case, without any reference to any weakness there may have been on the prosecution side and without a reminder that the jury was free to disregard what was being said, is likely to have conveyed to the jury that this was the judge’s own strong opinion and that he was urging it upon them. To say that this could have the effect of undermining the consideration given by the jury to the defence case would be something of an understatement.

86. I do not find it to be of assistance to be told that the jury did not convict until the following day, or that the experience of criminal law practitioners includes cases where juries were believed to have reacted against a perception that trial judges were pushing them to one verdict or another. It may well be true that some jurors, having been told that they are the judges of fact, dislike any apparent pressure to yield that status. It is however also possible that some will feel inclined to follow what appears to be a strong indication by the judge as to the decision they should make. For some considerable period of time it has been the practice of most trial judges to guard against seeming to give such an indication, and in my view this should continue to be the practice.

87. To paraphrase the words of the Court of Appeal in R. v. Bentley, I am of the opinion that the passage from the summing up under consideration was capable of driving some or all of the members of the jury to believe that they had little choice but to convict, and that there is a real possibility that it did so.
Summary
88. Two issues have been argued in this appeal. The first is whether the trial judge was correct in permitting the use of s. 16 of the Criminal Justice Act 2006, which allowed the prosecution to put into evidence two statements made by witnesses who did not repeat the content of those statements on oath. I have noted the fact that this was a case in which there was a noticeable reluctance to give evidence on the part of some civilian witnesses. The appellant has not claimed that the conditions set out in the Act for this procedure were not fulfilled, but has submitted that it could not be applied to witness statements taken before the Act came into force. This aspect of the case depended upon the argument that the change to the rules of evidence brought about by the section should be seen as substantive, rather than as procedural or evidential. The appellant has also submitted that in any event it was unfair to permit the section to be used in his particular case, because the prosecution had been guilty of blameworthy delay in bringing the case to trial.

89. I have not accepted either of these arguments. On the first aspect, I consider that the section does not breach the principle against retrospectivity since it brought about a change in the rules of evidence that could only apply to trials taking place after the Act came into force. The appellant has not succeeded in demonstrating that the use of the section caused any breach of his fair trial rights. On the second aspect, I have not accepted that, in circumstances where this Court had previously found that the delay on the part of the prosecution was not such as to prevent a fair trial, the trial judge should nonetheless have refused to operate the section because of that delay.

90. The other issue in the case relates to certain comments made by the trial judge in charging the jury, and has been more difficult to resolve. This was a case where, from any point of view, the summary given by the trial judge of the legal principles and the facts of the case was flawless. However the appellant has complained that in his final remarks to the jury before sending them out to deliberate, the trial judge unbalanced his charge. It is said that he delivered a statement of the prosecution case and in doing so discredited a defence of coincidence imputed by him to the appellant, but not actually relied upon by the appellant in the trial.

91. I have looked at this issue in the context of the evidence in the trial, the case made to the jury by counsel for both sides and the relevant line of authorities in this jurisdiction and in the courts of the United Kingdom.

92. It is an important part of the role of the trial judge in any case to explain to the jury the legal principles and, in cases of any significant length or complexity, to point out the evidence relevant to the jury’s role as finder of fact. It is also necessary that the jury should understand the case being made by both sides. Because of the vital part played by juries in our criminal justice system, it is essential that the judge, in giving the jury such instructions as the case requires, should fully respect the independence of their role. He or she should neither seek, nor seem to seek, to influence the jury’s verdict by communicating, or seeming to communicate, personal views that appear to point to a particular verdict.

93. I have come to the conclusion that the comments of the trial judge in this case went further than were desirable, that there is a real possibility that they may have been seen as reflecting his personal opinions and that they may well have influenced the members of the jury in their view of the defence case.

94. In the circumstances I would allow the appeal.

 

 

Judgment of Ms. Justice Dunne delivered on the 12th day of December2017
Brian Rattigan (hereinafter referred to as the Appellant) was convicted on the 17th December, 2009 of the murder of Declan Gavin on the 25th August, 2001. He appealed his conviction to the Court of Criminal Appeal on some eighteen grounds but at his appeal focused on three issues, two of which concerned s. 16 of the Criminal Justice Act 2006 and the third of which concerned the concluding comments of the trial judge in his charge to the jury. The Court of Criminal Appeal in a judgment of the 19th February, 2013 rejected the Appellant’s application for leave to appeal on all grounds.

Following that decision, an application was granted by the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006 and as amended by s. 59 of the Criminal Justice Act 2007 and s. 31 of the Criminal Procedure Act 2010, that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance and thus that it was desirable in the public interest that an appeal should be taken to this Court. The point certified was as follows:

“Does s. 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the said Act?”
Subsequently, on an application made to this Court to advance further grounds of appeal in relation to the concluding remarks of the learned trial judge in his charge, this Court, on the 16th December, 2015, permitted the Appellant to add the following grounds to his notice of appeal:
“That the learned trial judge failed to maintain an impartial and fair role in the trial and his charge to the jury was unbalanced and unfair and effectively amounted to a direction to the jury to convict the [Appellant] of murder.
That the learned trial judge erred in law and in fact in refusing to discharge the jury on foot of a defence application to do so following his charge to the jury.”

I have read in draft the judgment of Ms. Justice O’Malley and I agree entirely with her views concerning s. 16 of the Criminal Justice Act 2006, but I respectfully find myself having a different view on the further grounds of appeal concerning the concluding remarks of the learned trial judge in his charge to the jury. For that reason, I propose to consider only the issues arising in relation to the judge’s charge to the jury in this judgment.
It may appear from the grounds of appeal that criticism was made as to the fairness and impartiality of the trial judge over the course of the trial as a whole. However, it is the case that the complaint of unfairness and lack of impartiality is focused entirely on the closing remarks of the trial judge in his charge to the jury. In due course I will set out the passages from the charge to the jury now complained of.
Background
In order to understand the issue raised by way of complaint in respect of the comments of the trial judge, it is necessary to refer briefly to some of the facts of the case. These have been set out succinctly in the judgment of O’Donnell J. in the Court of Criminal Appeal. I gratefully adopt the account given by O’Donnell J. in the course of his judgment commencing at paragraph 4:

“4. . . . there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan Micra car. The car was described variously as grey, gold, or ‘that imported beige colour’. It was recognised as a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant described by the witnesses as the ‘knife man’. The door of the Abrakebabra was closed by the security guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described as ‘a blood like substance’, was found on the window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also identified as that of Brian Rattigan.
5. Brian Rattigan was arrested the following week, and interviewed by the gardaí. A number of the interviews were recorded in writing, which the accused refused to sign. Evidence of the content of the interviews was given at the trial subject to some editing by agreement between the parties and further to directions given by the trial judge. In those interviews Brian Rattigan was truculent, evasive and maintained that he had not been near Crumlin Shopping Centre for a considerable time. When asked where he was on the Friday night and Saturday morning of the 24th and 25th of August he replied, ‘I can’t remember where I was, but I wasn’t near that place’. He added that he had not been there for months, probably four months. He said he could not remember where he was that night. When asked whether he was at home at his brother Joey’s birthday party (as had been suggested by another witness), he replied that he couldn’t remember where he was. At one point he said he was ‘riding a married woman. Her fella is away. I was with her. I won’t tell ye who she is’. This somewhat incongruous piece of chivalry was expressed in coarse terms and more importantly was completely lacking in any supporting detail. When it was put to him that his sister had said that he was at the party he replied ‘I was there but I never left the place all night’. He was asked did he know Joey Redmond. He replied that he was his brother Joey’s ‘best mate’ and that ‘he was always in my gaff’. On another occasion however he said he barely knew Joey Redmond. When asked ‘Can you tell us the truth’ he replied ‘I won’t admit, youse prove it, that’s your job”. He was asked if he had been in a car Nissan Micra 93 D 38843 with Shane Maloney and Joey Redmond on the morning of the 25th of August 2001 and replied that he couldn’t remember. In other interviews he repeated in crude terms his claim to have been having an affair with a married woman and when asked whether he was with his lady friend on the night Declan Gavin was stabbed he replied, ‘no that’s not what I said’.

6. It was established in evidence that the entire glass window in Abrakebabra had been replaced only the previous week, on the 16th of August 2001, and it was regularly washed three times a week, and therefore was probably washed as recently as the Wednesday before the stabbing. Further evidence was given that a gold/beige Nissan Micra was found burning in the Cookstown Industrial Estate at 9:15 am on the morning of the 25th of August, shortly after the stabbing. Previously on the 20th of August, Garda O’Shaughnessy had stopped this car, then being driven by Shane Maloney and containing Joey Rattigan, the brother of the accused, both associates of Brian Rattigan, and to whom reference had been made in the evidence.”

The judge’s charge about which complaint is made was given over two days. Counsel on behalf of the Appellant set out in an appendix to the written submissions that portion of the charge which is the subject of this complaint. It is as follows:
“So, Mr. Foreman, ladies and gentleman, you have heard all the evidence, you have heard the arguments advanced by counsel on both sides, and, over the weeks that this trial has gone on, quite an amount of evidence has been offered. From the prosecution view, that evidence that is offered is more than sufficient to justify a verdict of guilty. On the defence view, too many questions are left unanswered and too many gaps remained unfilled.
Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr Rattigan has been most unfortunate. He was unfortunate, in the first place if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – ‘Rats’ – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably common place. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, that the prints on the windows and the door are, in fact, his. So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”

Following the completion of the judge’s charge to the jury and after the jury had retired an application was made by counsel on behalf of the Appellant for the jury to be discharged on the basis of the charge just delivered. It would be worth quoting in full what was said by counsel on behalf of the Appellant. He said:
“Just before you go, your Lordship charged the jury for approximately four hours and I have to say until five minutes ago I would have had to describe your charge as a model of fairness and balance in terms of how you presented the legal principles, summarise the evidence and indeed summarise the closing address of both counsel. Having done that, your Lordship then made what I can only term a second rousing and powerful closing speech on behalf of the prosecution by enumerating, in the manner in which you did, what can only be your view, because it was taken out of step from everything else that was done as to the unluckiness of the accused on a number of different issues, I think which perhaps numbered six or seven, which was not counterbalanced in any way, except by saying, but of course, people can be unlucky and you can have unlucky circumstances and you concluded it then by suggesting that, effectively, for somebody to be so unlucky to be not guilty would be in effect an affront or an insult to your intelligence.”
Some discussion then took place between the judge and counsel for the DPP and for the Appellant. The learned trial judge commented:
“I said quite the opposite. I said that the only situation in which they could convict would be if they were of the view that to regard the items listed as coincidence was a situation where their intelligence was being affronted or insulted.”
Counsel on behalf of the Appellant then reiterated his application for the jury to be discharged on the basis that the summary of the case in the judge’s terms had totally unbalanced what was up to that point a very fair and balanced charge. However, the learned trial judge declined to discharge the jury. Thus, as can be seen, the issue now raised in relation to the judge’s charge and the complaint about the comments made by the learned trial judge in the course of his charge to the jury is a very net point as to the comments made by the learned trial judge at the conclusion of his charge to the jury.
Comment in the course of a charge
Dermot Walsh in his book on Criminal Procedure (2nd Ed.) states:

“The judge is generally entitled to comment on the evidence in his summing up. In appropriate circumstances, this may even extend to commenting adversely on aspects of the accused’s explanation for his conduct in the matter charged. In that event, however, the judge must be careful to avoid stating it in a way which is calculated to discredit the accused’s explanation.”
Coonan and Foley in their work, The Judge’s Charge in Criminal Trials also deal with the question of comment by the trial judge in the course of a charge. Having observed that “there is no rule to the effect that the trial judge may not pass comment on either the evidence or the prosecution/defence case”, the learned authors go on to say that it seems to make reasonable sense that the trial judge should within appropriate bounds comment on the relevant facts and offer the jury the benefit of his experience. However, as they point out, this is always subject to the direction that the jury is free to disregard such comment if it disagrees. Coonan and Foley go on to conclude:
“The trial judge must, therefore, be careful to balance his obligation to contextualise the facts and comment thereupon against his duty to put the case fairly to the jury and not unduly influence its deliberations. Striking this balance is not always an easy task . . .”
They went on to say that it was clear that a trial judge could not engage in such comment to a degree which imperils a fair and proper trial:
“What is important is that, taken as a whole, the summing up must be balanced and fair to the accused.”
It is instructive to look at the position on judicial comment as applies in the neighbouring jurisdiction. Archbold on Criminal Pleading, Evidence and Practice (2016 edition) deals with the issue of comment commencing at paragraph 4 – 454 in some detail:
“The facts must be left to the jury to decide and the judge must not usurp their function: R. v. West, 4 Cr. App. R. 179, CCA, R. v. Frampton, 12 Cr. App. R. 202 CCA. But the judge is entitled to express his opinion strongly in a proper case, provided he leaves the issues to the jury: R. v. Cohen and Bateman, 2 Cr. App. R. 197, CCA. … However, it is an inherent principle of the system of trial in England that no matter how distasteful the offence, however the repulsive the defendant, however laughable his defence, he is entitled to have his case fairly presented to the jury both by counsel and the trial judge: R. v. Marr, 90 Cr. App. R. 154, CA.
For an example of a summing up in which the judge was held to have gone beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting, see Mears v. R., 97 Cr. App. R. 239. The summing up was not saved by warnings given by the judge to the jury that they were not bound by his view. This point was repeated in R. v. Wood [1996] 1 Cr. App. R. 207, CA where certain passages of the summing up were criticised as being ‘the stuff of advocacy’. . . . A judge is not confined to the argument propounded by the prosecution on the one hand or the defence on the other: R. v. Evans (DJ)… He is entitled to make uncontroversial comments as to the way the evidence is to be approached, particularly where there is a danger of the jury coming to an unjustified conclusion without an appropriate warning: R. v. D. [2009] Crim LR 591, CA (judge referring to particular feelings of shame and embarrassment that might inhibit a woman from making a complaint of rape against her partner)…”

An overview of the judgment of the Court of Criminal Appeal
The Court of Criminal Appeal noted an observation made by counsel for the Appellant suggesting that it is the current practice of judges charging a jury to make no comment whatsoever on the state of the evidence but to simply and neutrally recite what has been said by either side. As the Court of Criminal Appeal observed however, no authority was cited for the suggestion that a trial judge could do no more than recite what was said by counsel for the prosecution and the defence in their closing speeches. O’Donnell J. in his judgment went on to refer to the case of DPP v. DO’S [2004] IECCA 23 in which McGuinness J. stated:
“Comment is permissible if it is made in the course of a fair and balanced charge.”
O’Donnell J. went on to make the following observation:
“The function of the trial judge is to give guidance to the jury not only as to the legal concepts involved, but also to assist them in understanding the task which they are to perform. It should go without saying, that a jury is not chosen as the finder of fact in criminal trials because its members have any training or expertise in criminal investigation, deductive reasoning, or methods of logic; instead a jury makes decisions for which its potential members are admirably suited, namely the application of common sense and experience to an analysis of the facts within a legal framework provided by the judge. The function of a trial judge in this regard is to attempt to present to the jury the issue which it has to decide in a clear and comprehensible way. In a simple case this may involve no more than identifying what has been said on each side but in more complex cases it will necessarily involve a degree of analysis of the evidence if only to focus on the central issues, and to present what is to be considered by the jury, in an ordered, comprehensible and intelligible way.”
O’Donnell J. went on to say:
“What is precluded is conduct which is inappropriate for a judge and which is advocacy as to the outcome, which is partisan, and which therefore departs from the fairness which should be expected of a trial judge. Furthermore if there is such partiality, it cannot be cured by formulaic statements on the role of judge and jury and of the entitlement of a jury to disregard the views of the judge. But analysis of any such complaint necessarily involves an analysis of the overall charge, and indeed may involve consideration of the conduct of the trial as a whole.”
The remarks of O’Donnell J. set out above provide a helpful description of the function of a trial judge in charging a jury. It will be apparent that a mere recitation of the evidence, without any accompanying analysis of the facts required to be established in the context of the relevant legal framework for the issues to be decided by the jury, may well be of limited value to the jury.
Submissions
Counsel for the Appellant in his submissions contends that the learned trial judge crossed the line of acceptable comment in the passage complained of. It was said, and I quote from the written submissions:

“The repeated use of the words unfortunate and unlucky and the enumeration of the circumstances which the judge said rendered the appellant unlucky, coming as it did after a long complex and restrained charge, had an electrifying effect. The jury commenced their deliberations with the word ‘unlucky’ literally ringing in their ears combined with the words ‘coincidence’ and the term ‘affront or an insult to [their] intelligence’.”
Thus, it was argued that the trial judge failed in his duty of fairness and impartiality. It was observed that the trial judge had failed to remind the jury, as they had been told the previous day in the course of the charge, that they could reject the trial judge’s view if they did not agree with it. It was then contended that the passage complained of was partisan in the extreme and designed to impress upon the jury why the trial judge believed the Appellant should be convicted.
It is accepted on behalf of the Appellant that a trial judge is entitled to comment upon the evidence in a case. Nevertheless, it is argued that the trial judge in this case went further than was permissible in that the remarks made by the trial judge gave to the jury the clear impression that the judge favoured the prosecution case. Undoubtedly, the dividing line between what is permissible by way of comment and what is not in any given case may be quite narrow.

Counsel on behalf of the respondent submitted that the trial judge had directed the jury on the law and on the evidence in a careful, fair and balanced manner in all respects. It is contended that the approach of the defence has been to cherry-pick from the judge’s charge the aspects which it dislikes without viewing the charge as a whole. No issue was taken by counsel on behalf of the respondent as to the authorities cited in relation to the role of a trial judge in ensuring a fair trial and as to the implications for a trial where the trial judge does not act appropriately. Counsel noted the fact that the Appellant’s counsel conceded that a trial judge was permitted to comment on evidence, and further that the trial judge cautioned the jury that his comments, as indeed counsel’s comments, were matters that the jury should feel free to adopt or reject as they saw fit. It was submitted on behalf of the respondent that the role of the trial judge in charging the jury is not simply to recite, rote-wise, the evidence heard by the jury. The trial judge must direct the jury on legal principles and in doing so must engage with the evidence as adduced. The trial judge must assist the jury in a practical way as to how they approach their task which of necessity involves an engagement with, and analysis of, the evidence. As counsel put it, a trial judge will be criticised for failure to contextualise the facts having regard to the appropriate principles of law applicable. It was emphasised that it was important to look not just at the closing remarks made by the learned trial judge in isolation but to look at all of the charge.
Discussion
A number of authorities from this jurisdiction and from the neighbouring jurisdiction were referred to in the course of submissions by counsel for both parties and some of those have been set out in detail in the judgment of O’Malley J. herein to which I have already referred. For that reason, it is not necessary for me therefore to set out the extracts from those authorities here. Nevertheless, I would like to make brief reference to the decision in Mears v. R [1993] 1 W.L.R. 818, a decision of the Privy Council which came from the Court of Appeal of Jamaica and which is referred to in the passage from Archbold cited above. It would be helpful to set out the background of that case to illustrate how the point in that case arose. That was a case in which the defendant had been charged with murder. The prosecution relied principally on the evidence of a woman with whom the defendant had cohabited. She testified that he had confessed to her that he had killed the deceased and had described how he had shot the deceased in the ears and had burnt his body. The evidence of a pathologist indicated that there were burns and other injuries but no gunshot wounds on the body of the deceased. The defendant denied killing the deceased or making the alleged confession. In his summing up the judge expressed views favourable to the prosecution, although he directed the jury that such views were not to be considered as binding on them. He undermined the importance of the defence’s main point that the pathologist’s evidence as to the cause of death was completely inconsistent with what the defendant had allegedly said. The defendant was convicted. On appeal, the appeal was allowed on the basis that the trial judge in the comments made to the jury went beyond the proper bounds of judicial comment. As Lord Lane in the judgment of the Privy Council noted:

“Their Lordships consider that the judge’s comments already cited went beyond the proper bounds of judicial comment and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting. Their Lordships cannot, taking the summing up as a whole, overlook the fact that perhaps the most important point in the defence case was effectively neutralised by the way in which the judge dealt with the identification of the body. Finally, the failure to ascertain what it was about the evidence which was puzzling the jury and the reiteration thereafter of some of the questionable parts of the summing up proper are sufficient to convince their Lordships that this conviction cannot be allowed to stand.”
It appears that in the course of the trial, the jury had asked the judge for help. They indicated to the trial judge that they had a problem relating to the evidence. As a result of that, the judge, instead of asking them to retire and set out their problem in writing so that he could help them with their difficulty, “immediately embarked on a recapitulation of the evidence, repeating many of the matters which are the subject of complaint in the first direction and in particular the ‘coincidence’ point with which their Lordships have already dealt”. What then were the actual comments complained about? In that context it is useful to quote again from the judgment of Lord Lane:
“The judge, having set out the case advanced by each side, then made this comment of his own upon the defendant:

‘He says she is not to be believed, because she has fabricated this whole thing, and this is a comment I make again. I recoil to think that any human being could be so degenerate, so wicked that they would concoct a story like this, especially a woman who has borne from her womb, a child for a man. I am not saying, but to me, it is inconceivable that a human being could do this, just to settle a score’.

Then he went on to say:

‘But you are the judges of the facts, it is a comment I am making; and when you think they have been separated for how many months and she never, from what you heard, she never is telling any lie on him to get him into prison, she never make any other report over all these months. In August now, she says he tells her something and following the report she made, this body is recovered.'”
Lord Lane went on to make the following observation in relation to the evidence in the case:
“There were several points which told in favour of the defendant at trial. First there was the unlikelihood of anyone making this sort of confession to a woman who had every reason to dislike him, who, although she was less than frank about it when she gave evidence, eventually admitted hating him. The judge made this comment:

‘It might very well be that notwithstanding the relationship, the man believed that because she bore him a child … he could confide in her on the basis that for the sake of the child … she wouldn’t go and tell anybody that her child’s father killed a man. He probably thought that. That is a matter for you’.”
The observations of Lord Lane in Mears v. R. are very helpful on the role of a trial judge in charging a jury and, particularly, in respect of comments made by a trial judge in the course of a charge. In that case, the trial judge had effectively told the jury that they could believe the woman who had given evidence against the accused despite the fact that she every reason to dislike him, was reluctant to admit this and that part of her description of the alleged confession simply could not have been true when one bore in mind the evidence of the pathologist.
In the course of submissions, counsel on behalf of the respondent relied on the decision in the case of DPP v. Connolly [2003] 2 I.R. 1, at page 7, in which an issue arose as to whether or not the Gardaí fabricated the statement of the accused in the course of which the only evidence against him was a signed inculpatory statement allegedly made by him while in custody. In the course of his charge, the trial judge in that case pointed out that the issue in the case revolved around whether the jury accepted the Garda account to be true beyond reasonable doubt. Hardiman J. in the Court of Criminal Appeal then observed:

“The judge then discussed the question of what motive might have existed to fabricate a statement:-

‘…that would make the two members of An Garda Síochána to put their careers on the line without any hope of reprieve if they were found out to have fabricated a document of this nature simply to have the accused falsely accused and convicted.’

The trial judge also said:-

‘I do not believe that it is possible for you to address this any other way than that if you are not happy to act upon the statement, well then I think you have to get into the area of coming to the conclusion that the gardaí were lying. I do not see it as being any other way’.”
No objection was taken to that form of words after the delivery of the charge to the jury but it did form an issue in the grounds of appeal and it was contended that the passage above in effect required the accused person to prove a motive on the part of the Gardaí. Hardiman J. commented:
“We do not consider that the trial judge’s comments can be interpreted in this way. The jury had already been fully and properly instructed as to where the onus of proof lay and the passage immediately before that complained of makes it perfectly clear that the whole case comes down to the credibility of these garda witnesses. It would clearly not be proper in all cases, where there was a conflict of evidence, to suggest for that reason only, one side or the other was lying. It appears to us, however, that in the circumstances of this case the gardaí’s denials of what was put to them by counsel for the accused were either true or were knowingly false. There is simply no scope for mistake, misapprehension, misunderstanding or failure of memory. The trial judge was doing no more than drawing the jury’s attention to the realities of the position.”
Certain observations can be made at this stage. First of all, it is quite clear that it is open to a trial judge to comment on the prosecution and/or defence case as is readily accepted by counsel on behalf of the Appellant. Secondly, any comments made must be consistent with the obligation to provide the jury with a fair and balanced charge. Thirdly, a summing up which goes beyond the bounds of what is proper in terms of judicial comment will not be saved by warnings given by the judge to the jury that they were not bound by his view.
It is important to recall that the learned trial judge in the course of his charge explained to the jury their role as judges of fact and his role as the party in charge of the law in relation to the case. Insofar as comment was concerned he pointed out that, while others were free to comment, it was the jury alone who could decide the facts. As he said:

“It may be that I’ll comment on the facts, or it may be that you’ll feel that I am commenting on the facts, or feel that you can glean something of my own views, my personal views, though I have to say that it isn’t my intention to express personal views to any significant extent at all. However, insofar as you feel you can identify any views of mine, if any comments I do make appeal to you and they accord with your own views of the case, well and good, that’s excellent. However if anything that I say is not to your liking, if you disagree with what you think I am saying, then not only are you entitled to reject what I have to say by way of comment but you are actually bound to do so and that’s because, in the heel of the hunt, my view on the count doesn’t count; it’s your view on the facts that we’re interested in, and in particular it’s your view on the ultimate, crucial decision as to what the verdict should be.”
He made a similar observation in relation to comments made by counsel on either side. As he pointed out, if what counsel had to say was helpful well and good, but if their view was not to that effect, they could reject that comment. It is not necessary for a trial judge, having clearly and expressly stated what the function of the jury is and the extent to which they can take on board or reject comments made by either the trial judge or counsel, to reiterate this point again in the course of the charge. Trial judges sometimes do so out of an abundance of caution but there cannot be a hard and fast rule to the effect that such a direction must be given on more than one occasion during the course of a trial. The trial judge in this case, as set out above, gave clear and explicit directions to the jury as to their approach to any comment that might be made by him or indeed by counsel in the course of their address and his charge to the jury.
The trial at issue in this case lasted a number of weeks. It was a complex and difficult case. The trial judge had to summarise the evidence for the benefit and assistance of the jury. He then summarised the prosecution and the defence cases. No issue has been taken as to the manner in which he did this. He then focussed on the issues that would have to be considered by the jury having regard to the evidence given and the prosecution and the defence cases in the passage of which complaint is made. Thus, the learned trial judge highlighted the fact that if the Appellant in this case was not the “knife man” it followed that the jury would have to reject the evidence as to a series of matters which placed the Appellant at the scene of this murder at the relevant time. There was the issue as to finger marks of the Appellant which were found on a door and window of the premises at which the incident took place; that the knifeman arrived at the scene and left in a Nissan Micra, similar to one owned by a friend of his, that that vehicle was found burnt out a few hours later; the fact that the Appellant “would compound his difficulties by telling lies” to mention a few of the relevant matters referred to by the learned trial judge. It is important to bear in mind that the trial judge, in the course of the passage complained of, pointed out to the jury that they did not have to accept those facts. As he said “…if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and door are, in fact, his.” In other words, the trial judge was making it clear to the jury that it was for them to find the facts. He reiterated the point that the jury could not convict unless they were satisfied beyond a reasonable doubt that the combination of these matters was not a coincidence. In my view, to use the words of Hardiman J. in Connolly referred to above, the trial judge was doing no more than drawing the jury’s attention to the realities of the position. As O’Donnell J. pointed out in the judgment of the Court of Criminal Appeal, the learned trial judge did not comment on the veracity of any witness or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. The comments made by the trial judge on the evidence made it clear that it was for the jury to decide the issues of fact. The trial judge brought to the attention of the jury in a clear and explicit manner the issues they had to consider in order to reach a conclusion on the guilt or otherwise of the Appellant. There could not be a clearer contrast between the approach of the trial judge in this case with that of the trial judge in Mears, where the trial judge clearly and one might add, successfully, influenced the jury to accept the evidence of the principal witness in that case.

It is therefore with respect that I find myself coming to a different conclusion on this issue to that of O’Malley J. She set out a characterisation of the defence case in paragraph 77 of her judgment to the effect that the defence was confined to the argument “that certain matters were not proved to the required standard (as in the attempt to cast doubt on the reliability of the garda evidence that the Appellant said he had not been at the scene for some months); or not capable of bearing much weight (as in a suggestion that it might be expected that the Appellant would lie to gardaí, or a reminder that there were nineteen other fingerprints found on the door and window that were not identified) or else were irrelevant as not being sufficiently connected to the Appellant (as with the evidence relating to Shane Maloney’s car, or the red substance on the window). Overall, the argument made was that the jury should either not believe particular items of evidence beyond reasonable doubt, or should not accord them sufficient weight to convict. At no stage was there an effort to put forward an alternative explanation of the facts, if they were accepted as such. The issue was whether or not the prosecution had proved sufficient facts by sufficiently strong evidence. Having regard to the burden and standard of proof that was a perfectly legitimate line to take”

I do not disagree with that characterisation of the defence case. It is true the defence put forward on behalf of the Appellant did not refer to coincidence, but it seems to me that if the jury were satisfied as to the proof of the relevant facts they could only have reached a verdict of guilty if satisfied that the Appellant was indeed the knife man and that the relevant facts proven as to, for example, the location of his fingerprints on the windows and door, were not an unfortunate coincidence. A trial judge has to put into context the evidence that has been given in a case in order to assist the jury to form a view as to whether the prosecution has established the guilt or otherwise of an accused person. That being so, it is difficult to see how that can be done if a trial judge does not explain the relevance and importance of particular pieces of evidence thus enabling the jury to address their minds to that evidence when they are deliberating on the issue or issues to be tried. If the jury has to set sail in a sea of evidence with no guidance to direct them towards a verdict, whether that verdict is guilty or not guilty, how are the jury to reach their destination? The more complicated the case, the greater the need there will be for clear instructions from the trial judge. It is undoubtedly the case that the trial judge in this case provided the jury with clear and concise instructions at the end of a difficult and complex case whilst at the same time making it clear that the decision on the facts was a matter for them. The trial judge, in the comments complained of, did not express to the jury any view as to any witness’s credibility or any view on any aspect of the evidence. He did not endorse the testimony of any witness or denigrate the testimony of any witness. He simply made it clear to the jury that if they were satisfied beyond a reasonable doubt as to a series of facts which he highlighted, then the only outcome of the case was a conviction. I cannot see how his reference to coincidence renders his charge to the jury unsatisfactory. In my view, the learned judge did not overstep the bounds of what is permissible. The charge to the jury in this case is far removed from the type of charge which was found to be so objectionable in Mears.

The concluding remarks of O’Donnell J. in his judgment in the Court of Criminal Appeal succinctly put the matter thus:

“At the end of this lengthy period there was however a large number of individual pieces of evidence which required to be gathered and synthesised. When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury. Ultimately this is a matter for the judgment of this Court. Taken in the overall context of this case, the Court does not consider that the charge to the jury can be said to be unbalanced or that the trial judge commented in a fashion which was inappropriate for a trial judge. Accordingly, these grounds of appeal fail.”
I agree with his comments, particularly those which describe the passage complained of as being clearly and powerfully expressed. As I said previously, the dividing line between permissible and impermissible comment by a trial judge in the course of a charge is a narrow one. In my view, the learned trial judge’s comments in this case remained within the dividing line of permissible comment.
Conclusion
I would also dismiss the appeal on this ground.

People (DPP) v Ward

 

[2018] IECA 162

JUDGMENT of the Court delivered on the 31st day of May 2018 by Mr. Justice Mahon
1. This is the appellant’s appeal against his conviction on the 10th May 2017 at Galway Circuit Criminal Court following a verdict of guilty by a jury after a two day trial in respect of two counts, namely:-

• Count no. 1: Threatening to kill or cause serious harm contrary to s. 15 of the Non Fatal Offences Against the Person Act 1997, and
• Count no. 2: Production of an article capable of inflicting serious injury contrary to s.11 of the Firearms and Offensive Weapons Act 1990.

2. The appellant was sentenced on the 31st May 2017 to terms of imprisonment of six years and three years respectively, both sentences to run concurrently from the 10th May 2017. The appellant has also appealed against sentence.
3. The background to these offences is an inter family feud in the Galway area. On the 8th February 2015 Messrs. Wayne Ward and Patrick Ward attended at the A & E Department at University College Galway in connection with injuries sustained by both of them in the course of a matter unrelated to this appeal. The two men were in the company of Charlie Ward. As they approached the doors of the hospital they were approached by the appellant who proceeded to threaten to kill Charlie Ward whilst swinging a meat cleaver at the three men. The three men were again threatened by the appellant, again brandishing the meat cleaver inside the hospital doors. A hospital security man calmed the situation, whereupon the appellant proceeded to walk into the main hospital building. Gardaí arrived shortly afterwards and conducted a search, unsuccessfully, for the appellant or the meat cleaver.

4. The three complainants later attended at the garda station in Galway and made detailed statements as to what had occurred.

5. Fourteen grounds of appeal have been filed on behalf of the appellant. They are, that the learned trial judge erred in fact and / or in law in: –

(i) permitting the initial statements of Charlie Ward, Wayne Ward and Patrick Ward to be admitted as evidence pursuant to the provisions of s. 16 of the Criminal Justice Act 2006;
(ii) finding that the statements of the above named witnesses were both “voluntary” and “reliable” within the meaning of s. 16(2)(b)(ii) and (iii) of the Criminal Justice Act 2006;

(iii) finding that the statement of the above named witnesses were reliable in circumstances where the said witnesses were under the influence of alcohol and other psycho active substances, both at the time the alleged events occurred and at the time the statements were made to the gardaí;

(iv) admitting the statements of the above named witnesses in circumstances where there was no evidence to support who exactly made or signed each statement;

(v) admitting the statements of the above named witnesses in circumstances where there was no video or audio recording to support their authenticity and / or the demeanour and / or the reliability and / or the identify of the witnesses who made the said statements;

(vi) finding that the statements of the above named witnesses were reliable statements and not prejudicial to the accused;

(vii) finding that the statement of the above named witnesses were reliable in circumstances where there had been an ongoing feud between members of the accused’s family and the aforementioned witnesses as well as other members of their family;

(viii) finding that the statement of the above named witnesses were reliable, in circumstances where the statements were made shortly after an emotional and highly charged incident had taken place, where members of both families were injured and hospitalised, with the result that tensions were high and there was a serious risk that the witnesses were colluded to incriminate the accused;

(ix) failing to afford sufficient weight to the witnesses’ oral evidence that they had attempted to withdraw their previous statements on mature and sober reflection;

(x) admitting evidence that was unreliable, unfair and prejudicial to the accused having regard to all the circumstances, the admission of which was contrary to the interest of justice;

(xi) admitting inadmissible evidence when he knew or ought to have known that the said inadmissible evidence would have made the trial unfair and the verdict unsafe and / or was prejudicial to the accused;

(xii) failing to direct that there was no case to answer in circumstances where the only evidence available against the accused was of an inconsistent and tenuous character, such that a jury properly directed could not properly convict upon it;

(xiii) failing to direct that there was no case to answer in circumstances where the evidence tendered by the prosecution was of a such a prejudicial and tenuous character that it was unfair to proceed with the trial, and

(xiv) failing to direct that there was no case to answer in circumstances where there was an absolute conflict in the evidence presented by the prosecution which could not be resolved.

6. Of the fourteen grounds of appeal, all but the final three directly relate to the decision of the learned trial judge to admit into evidence the statements made by the complainants pursuant to s. 16(2)(b)(ii) and (iii) of the Criminal Justice Act 2006. These grounds will be dealt with in this judgment under the heading “Section 16 application to admit statements”. The final three grounds of appeal are indirectly related to that same issue, and will be discussed under the heading “Application for a direction”. A further ground of appeal, although not a ground originally indicated, concerns the learned trial judge’s charge to the jury in relation to the statements admitted under s. 16 that will be addressed under the heading “The charge to the jury”.
7. A “preliminary issue” has been raised by the respondent in her written submissions to the court, namely:-

(i) a perusal of the transcript of the trial discloses that many of the arguments made in the written submissions of the appellant (as drafted by his newly appointed legal team) were not raised by the appellant in the trial court. Therefore, it is submitted that these arguments are not appropriate grounds of appeal;
(ii) further, the written submissions of the appellant fail to differentiate between the arguments made by his lawyers on his behalf in the trial court and the arguments now argued on his behalf by his newly appointed lawyers based upon their consideration of the transcript of proceedings, and

(iii) the appellant’s failure to clearly differentiate between those arguments raised at the trial court and those now raised after an examination of the transcript, risks confusing the matters in issue for this honourable court;

(iv) no explanation of any sort has been put forward by the appellant explaining why the arguments now made on his behalf were not raised at his trial other than a statement “points not raised at trial” contained at the end of the appellant’s written submission relating to his conviction.

8. In support of these matters, the respondent specifically relies on the decision of the Supreme Court in DPP v. Mark Cronin (No. 2) [2006] 4 I.R.. These submissions will be considered as they arise and are deemed relevant under the two broad appeal headings as indicated above.
9. The relevant provisions of s. 16 of the Criminal Justice Act 2006 are:-

“16(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination:-

(a) refuses to give evidence,
(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if:-

(a) the witness confirms, or it is proved, that he or she made it,
(b) the court is satisfied:-

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(ii) that it was made voluntarily, and

(iii) that it is reliable, and

(c) either:-
(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to:-

(a) whether it was given on oath or affirmation or was video recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion:-

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused, or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

Section 16 application to admit statements
10. All three complainants sought to withdraw statements made by them to the gardaí on, essentially, similar grounds.
11. Charlie Ward attended the garda station on the day following the incident. He gave a cautioned statement to Sergeant Grace Hennessy in which he provided a detailed account of his attendance at the A & E department on the previous evening and of being confronted by the appellant. When called to give evidence on the first day of the trial he replied when questioned by Mr. Fahy BL, counsel for the prosecution “I don’t want to proceed with anything.. I don’t want to proceed with anything. I’m not giving evidence in anything” and “I don’t want to give the evidence because at that time I was on medication and, to be honest, I shouldn’t have said things that I said, because I didn’t know what I was saying. I was on medication at that time, and I was confused.” Mr. Ward acknowledged that he had made the statement. He said that subsequently, and prior to the trial, he wanted to withdraw his statement but was told by his solicitor that he had to come to court for that purpose.

12. Wayne Ward, another of the complainants also gave evidence. He had also made a statement at the garda station to Sergeant Philpott. In his evidence, Wayne Ward admitted making the statement and that the signature on it was his. He went on however to reject its content on the basis that he could not remember making the statement, that he had been drinking both during the day and on the night in question, was drunk and was “out of (his) head on tablets”. He said the contents of his statement were lies. Sergeant Philpott gave evidence to the effect that in his opinion Wayne Ward was lucid at the time he made this statement and did not appear to be under the influence of an intoxicant at the time. In his statement Wayne Ward provided a detailed account of what had occurred in his confrontation with the appellant and at Sergeant Philpott’s request drew a picture of the meat cleaver said to have been used on the occasion by the appellant. In the course of cross examination, Sergeant Philpott insisted that he was:-

“…an experienced member of An Garda Síochána and I would not take a complaint from somebody if there (was) any sign of impairment or anything..”
13. Patrick Ward also gave evidence on the first day of the trial. He admitted making his statement to Sergeant Philpott, but said he was drunk, mad drunk when he did so. He said he could not confirm that everything in the statement was true, and that he “could have added bits and pieces to the statement because I was on a real high from the argument in the pub”. He said he could not recollect anything that occurred on the night in question and that he was unfit to make the statement because of sleep deprivation. He maintained that he had never seen a meat cleaver on the night.
14. Garda witnesses gave evidence, in the course of a voir dire to the effect that the complainants were, they believed, in a fit state to make statements when the statements were made.

15. The learned trial judge, having heard submissions from both sides, gave separate rulings in relation to the statements made by each of the three witnesses. In relation to the statement made by Charlie Ward, he ruled as follows:

“Well, can I say at this stage that I’m satisfied that the provisions of section 16 insofar as reliability is concerned are complied with. I don’t see any evidence of any prejudice that would – there certainly hasn’t been – no prejudice has been identified to me that might alter the exercise of my discretion in this regard. The circumstances, to use a broad term, the making of the statement, the circumstances in which it was made, the evidence that he gave today, the explanation that he offered for refusing to testify in this case, all persuade me that there would be no injustice in invoking the provisions of section 16 and admitting this evidence.
16. A second statement made by Charlie Ward was also the subject of the respondent’s s. 16 application but was not expressly referred to in the learned trial judge’s ruling. However, it was not subsequently introduced into evidence by the respondent and therefore is not an issue in this appeal.
17. In relation to statements made by Wayne Ward and the application to have them admitted pursuant to s. 16 of the Act of 2006, the learned trial judge ruled as follows:-

“Well, I can’t understand that the accused might take the view that this – that to admit these statements is prejudicial to him, but I haven’t heard in any legal sense any submission that would persuade me that there are grounds to find this prejudicial within the meaning of – within the confines of section 16. He’s refused to give evidence in accordance with the statement that he made. The statement has been proven. While he has made assertions today, for the first time, concerning what he perceives to be his lack of memory of what went on, while at the same time making a positive statement that they’re all lies, I can’t – I can only speculate as to what his motivation might be for this, but I’m satisfied that within the meaning of section 16, I can rely on the – I can rely on this to the extent that I’m prepared to admit it. There we go. Can we have the jury back?”
18. In relation to a similar application made in respect of statements made by Patrick Ward, the learned trial judge ruled as follows:-
“The difficulty, I suppose, from the point of view of the defence in this situation is – in terms of this particular submission is that on the one hand the witness is saying he doesn’t remember; yet on the other hand, he’s saying he definitely wasn’t threatened and he definitely didn’t see a cleaver. So it’s – there’s an internal inconsistency in that along the line, and it seems to me that there’s no qualitative difference between the submission that’s made by the prosecution in relation to this particular witness and the other two, the same situations apply. I am satisfied that within the meaning of section 16, the statement is reliable and I’m therefore disposed to exercise my discretion in admitting it.”
19. A decision by a trial judge in relation to the admission of evidence, and including a decision to admit statements into evidence pursuant to s. 16 of the Act of 2006, carries significant weight in circumstances where the trial judge has had the opportunity to hear evidence first hand from relevant witnesses as well as being in a position to assess their demeanour. A trial judge is, generally speaking, in a more advantageous position than is an appellate court to determine such matters. An appellate court will not usually intervene unless it can be established that certain specific requirements were not adhered to or where it is clear that an injustice would arise by not interfering.
20. The language of s. 16 of the Act of 2006 is quite specific in many respects. The section provides for the circumstances where a pre trial statement may be admitted into evidence if the witness either refuses to give evidence, denies making the statement or gives evidence which is materially inconsistent with it. The section provides that a court must be satisfied of certain specific matters before it can make an order admitting statements into evidence. These include, importantly, that the trial court is satisfied that the statement was made voluntarily and is reliable. If so satisfied, the court must also be satisfied that either statement was given on oath or affirmation or contained a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief or the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. In deciding on its reliability the court must have regard to whether it was given on oath or affirmation or was video recorded or, if neither be the case, that by reason of the circumstances in which it is made, there is other sufficient evidence in support of it reliability. The section also requires the court to take account of any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or, where the witness denies making the statement, any evidence given in relation to the denial.

21. Section 16(4) provides that a statement shall not be admitted in evidence under this section if the court is of the opinion that:-

“a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused, or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.”

22. It is therefore the position that in circumstances where one of the three predicated grounds for the introduction of a previous witness statement has been met (refusal to give evidence, denial that a statement was made by giving evidence which is materially inconsistent with it) the trial judge must consider an extensive list of factors that condition admissibility.
23. The rulings given in relation to each of the statements provided by the three witnesses were brief. Only two of those rulings, those relating to Charlie Ward and Patrick Ward’s statements, referred to reliability. The ruling in relation to the statement of Wayne Ward made no reference to its reliability. The first two rulings referred to the issue of prejudice whereas the ruling in relation to Patrick Ward made no reference to that issue. The learned trial judge’s rulings make no reference to the statements being given on oath or affirmation or containing a statutory declaration as to its truth or that the court was otherwise satisfied that when the statements were made the witnesses understood the requirement to tell the truth.

24. In the ruling relating to the statement of Charlie Ward the learned trial judge expressed his satisfaction that no prejudice or injustice would arise if his statement was admitted. In relation to the statement of Wayne Ward he again referred to the lack of prejudice, while in the case of Patrick Ward’s statement none of the foregoing was referred to.

25. The Superior Courts have frequently drawn attention to the desirability, and indeed the necessity of giving reasons when rulings or decisions are being given. In O’Mahony v. Ballagh [2002] 2 IR 410, the Supreme Court quashed a conviction by way of certiorari and remitted the matter to the District Court on account of a failure by the trial judge to give reasons for refusing applications for a direction at the close of the prosecution case and later, at the close of the defence case. Delivering the court’s judgment, Murphy J. said:-

“I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice it would be undesirable – and perhaps impossible – to reserve decisions even for a brief period. On the other hand it does seem, and in my view this case illustrates, that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing…”
26. In DPP v. Murphy [2013] IECCA 7, McKechnie J. said:-
“It is regrettable however that the ruling of the trial judge, described by the DPP as ‘terse but adequate’ was not somewhat more detailed or discursive than what it was. Unfortunately, but factually, it is not informative to an appellate court to simply say the statutory conditions have been met; this is a conclusion which follows from a preceding finding, the basis for which should be set out . As matters were left, one cannot identify any express finding, particularly of fact, on which this conclusion was based. There is no stated explanation or reasons given for the judge preferring some witnesses over others of what impressed him about those whose evidence he ultimately accepted..”
27. In this case, the statements of the three witnesses admitted into evidence pursuant to s. 16 were crucial to the prosecution case and almost certainly contributed significantly to the conviction of the appellant. As such, the statements were required to be assessed strictly in accordance with the provisions of s. 16 and to satisfy the requirements of that section. To a very significant extent the rulings of the learned trial judge did not engage with many of them and it is therefore not possible to determine if in fact they were considered by him.
28. In these circumstances the court is satisfied that the deficiencies in the learned trial judge’s rulings, as indicated above, were such that the trial was rendered unsatisfactory. It will therefore allow this ground of appeal.
Application for a direction
29. At the conclusion of the prosecution case counsel for the appellant made the following application to the learned trial judge:-

“…my application is..for a direction that there’s no case to answer. My basis for it is that I say that the prosecution evidence does not establish the offence or offences which the – which Mr Ward has been charged with. We haven’t any concrete or any definitive evidence that shows the presence of a meat cleaver or that it was produced. I say that there’s no evidence -I say the only evidence there that suggests the presence of a meat cleaver comes from the witness testimony of three prosecution witnesses that gave statements to the guards on the day after this alleged event, which they subsequently sought to withdraw, first via the gardaí and then here in open court. They say that they were under the influence of drink and drugs at the time that the incident occurred and I believe, at the time that they made the statements, indeed, one of the witnesses says he didn’t even recognise the guard to whom he allegedly made the statement. I suppose the fact of the matter is they don’t stand behind those statements that were taken by the gardaí. Further, I’d say that there was no evidence that Mr Charlie Ward was put in fear at the time. In fact he gave his viva voce evidence here where he said he wasn’t in fear nor has ever been in fear of Mr Ward.”
30. The learned trial judge ruled as follows
“Well is there evidence upon which a jury could properly convict, a jury properly directed could convict of these two offences? I’m satisfied that there is, whether or not the jury takes the same view is a matter for them.”
31. In the court’s view, this application was entirely mis-conceived. It was, in effect, for the most part, simply an effort to re-open the subject of the admission into evidence of the statements from the three complainants pursuant to s. 16, and which had been earlier ruled on by the learned trial judge.
32. The statements of the three complainants had been admitted into evidence and that being so the learned trial judge was correct to allow the matter proceed and for the jury to reach their own conclusion in relation to them with due regard to the evidence given by the three complainants and others.

33. In this court’s judgment in DPP v. Campion [2015] IECA 274, delivered by Birmingham J. (as he then was), it was stated that:-

“No case where s. 16 is invoked is likely to be straightforward. The witness is saying something different at trial from what he had said on a previous occasion. The jury is being asked to rely on and to act on what was said on the previous occasion. The jury is invited to so rely although the witness will have been established to be someone who has lied on a significant occasion, whether that was in court or in the earlier statement. It is quintessentially a matter for the jury to decide whether they can identify where the truth lies, and if the view is that the truth is to be found in the earlier statement sought to be relied on by the prosecution, whether they can be sufficiently confident that that is the case and that they can proceed to return a verdict of guilty beyond reasonable doubt.”
34. This ground of appeal is therefore dismissed.
The charge to the jury
35. It is contended on behalf of the appellant that the learned trial judge erred in fact or in law in failing to direct the jury how to treat and weigh that evidence. Specifically, it is contended that the learned trial judge failed to engage with s. 16(5) of the Criminal Justice Act 2006, which states:-

“In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.”
36. In the course of his charge to the jury the learned trial judge said the following:-
“Now, you have to consider every point that was raised, you only have to decide enough that you can say whether the prosecution had proved beyond a reasonable doubt either or both of the charges. You’ll do that by considering all the evidence, form your own judgement about the witnesses and the other evidence, by the other evidence I mean the statements that you’ll have with you, and decide which you can rely on and which you can’t rely on.
..So, in this case and this is my closing to you, if you like, in this case you have the statements made by Charlie Ward, Wayne Ward and Patrick Ward, made to the gardaí later on in the day when these events took place. Statements were read to you by the gardaí who took the statements and they’re evidence in the trial. Doesn’t mean they’re true, but they’re evidence. You’ve also seen and heard the three persons who made these statements and the evidence that they gave in the witness box. Again, what you’ve heard is evidence. Doesn’t mean it’s true, whether it is or not is a matter for yourself to consider.

..It’s for you to decide, ladies and gentlemen, what to believe; what can you rely on, what can you not rely on. If you have a doubt as to whether or not the threat was made by the accused at all, then you have to acquit. Even if you decide he did make the threat, but you have a doubt as to whether he intended that he would be believed, then you have to acquit. It’s only if you’re satisfied that prosecution have proved beyond a reasonable doubt on the evidence, the evidence that you accept that he made the threat and he intended Charlie Ward would believe that he intended to carry it out, that you can convict.

Look at all the evidence, decide what to believe. Use your ordinary common sense when you’re doing this, apply your own personal and your own collective experience of life.

.. If any single piece of evidence is capable of having two different meanings and one of those favours the accused, then unless you’re satisfied that the prosecution have proved their version beyond a reasonable doubt, you must favour the version that favours the accused.”

37. In the court’s view this charge was perfectly adequate in relation to the admission of the statements pursuant to s. 16. The jury were told in simple terms that they had to consider the content of the statements made and admitted pursuant to s. 16, and the evidence of the witnesses given in the course of the trial. They were told, again in simple terms, that it was a matter for them to decide where the truth lay. It was a relatively straightforward task and would likely have been easily understood and followed by the jury.
38. A further criticism of the learned trial judge’s charge to the jury is made in relation to how he approached the issue of s. 11 of the Firearms and Offensive Weapons Act 1990 (as amended). That provides:-

“Where a person, while committing or appearing to be about to commit an offence, or in the course of a dispute or fight, produces in a manner likely unlawfully to intimidate another person any article capable of inflicting serious injury, he shall be guilty of an offence…”
39. The appellant’s criticism was that he did not direct the jury in relation to the establishment of a dispute in the first instance, and that he erroneously focussed the jury’s minds solely on the question of whether it was proven that the appellant had produced a meat cleaver in a manner likely to intimidate another person. The learned trial judge charged the jury on this subject as follows:-
“The second offence is under section 11 of the Firearms and Offensive Weapons Act and it makes it an offence to unlawfully produce an article in the course of a dispute that is capable of inflicting serious injury in a manner likely to intimidate another person. Again, you’ll see that this is worded in such a way that it’s not a necessary proof that a person has to actually be intimidated by what happened. It’s just a case of looking at the circumstances and, first of all, you’ve to consider if the accused man unlawfully produced an article and that article is a meat cleaver and that that meat cleaver is capable of inflicting serious injury on somebody and if you accept that he did produce it, did he produce it in a manner which was likely to intimidate another person? Not necessarily Charlie Ward or anybody else, another person. So you look at the circumstances and say, if you accept the evidence, did that amount to producing an article in a manner that was likely to intimidate another person, not just Charlie Ward or anybody else.
So, it’s for you to decide if the prosecution have proved beyond a reasonable doubt that the accused produced such an article. If you’re satisfied that the prosecution have proved the case, then you have to convict.

… As to the second charge, as I said to you, I don’t think you’ll have any difficulty in concluding that if there was a meat cleaver involved, that it was an article that was capable of inflicting serious injury, I don’t think you’ll have a problem dealing with that. But it’s only if you’re satisfied that the prosecution have proved beyond a reasonable doubt that he produced a meat cleaver in a manner alleged that you can convict…”

40. In the court’s view, the criticism levelled at this aspect of the learned judge’s charge to the jury is entirely misconceived. It was perfectly clear to the jury based on what was said to them by the learned trial judge in the course of his charge and also from the evidence heard by the jury in the course of the trial that what had occurred in the environs of the hospital was a “dispute”. There can have been no doubt about that. In those circumstances, the charge to the jury in respect of the s. 11 offence was reasonable, clear and perfectly adequate.
41. It is further contended on behalf of the appellant that the learned trial judge misdirected the jury on the issue of the standard of proof. While it is acknowledged that the learned trial judge referred to the standard of proof on a number of occasions it is claimed that he misdirected them in terms of explaining the concept. In particular it is argued that the reference by the learned trial judge to the jury being sure was erroneous. In particular it is said that the following reference was inappropriate:-

“That being said, in criminal trials, it’s a serious business not to be taken lightly, but you’re not looking for mathematical certainty, 100% certainty is not what you’re after. I suppose the best way of putting it is that you have to be sure. You have to make a decision that you’re happy with…”
42. In the court’s view this explanation of the concept of the standard of proof to be applied was not in anyway deficient. It impressed on the jury the fact that they had to be strongly convinced of the guilt of the appellant before reaching a verdict of guilty, and that they had to be happy with their decision. If anything, in this respect the charge to the jury was, if anything, unnecessarily supportive of the appellant’s position.
43. This ground of appeal is dismissed, as is the ground relating to the contention that the jury verdict was perverse and against the weight of the evidence. The jury was entitled to find the appellant guilty of both counts on the evidence presented to them. The court is satisfied that the threshold for intervention by this court on ground of perversity as enunciated in DPP v. Tomkins [2012] IECCA 83 has not been met.
The Cronin point
44. While the court has considered the criticisms directed at the learned trial judge’s charge to the jury, and has dismissed each of them on their merits, it is noteworthy that no requisitions of any nature were made in relation to the learned judge’s charge. Had this court found the charge to have been deficient under any of the headings complained of it would have considered whether it was appropriate to consider submissions in relation thereto in circumstances where the points in question had not been raised by way of requisition and may well have decided against intervention on that basis. This very issue was considered by the Court of Criminal Appeal in DPP v. Cronin [2003] 3 I.R.. In the course of his judgment, Hardiman J. stated:-

“Throughout the history of this court considerable emphasis has been passed on whether a point relates to something which was thought at the time, by those involved in the case, to be of real importance, as opposed to a point devised much later, perhaps by persons who had no connection with the trial and only after a trawl of the transcript..”
45. In the case of the same name ([2006] 4 IR 329) Geoghegan J. in the Supreme Court stated at para. 46 the following:-
“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.

Conclusion
46. The appellant has succeeded in relation to the grounds of appeal concerning the admission into evidence of statements pursuant to s. 16 and the court will therefore allow the appeal and quash the verdicts and consider in due course whether or not there ought to be a re-trial.

 

People (DPP) v McCarthy

[2018] IECA 163

JUDGMENT of the Court delivered on the 31st day of May 2018 by Mr. Justice Mahon

1. The appellant has appealed his conviction following a jury trial at the Special Criminal Court on the 3rd July 2017 of two counts namely:-

• Count 1: that on the 25th November 2014 at Cornmarket Villas, Little Gerald Griffin Street, in the city of Limerick the appellant assaulted David Foran causing him harm contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997, and
• Count 2: that on the 25th November 2014 at Cornmarket Villas, Little Gerald Griffin Street, in the city of Limerick, committed violent disorder in that he, with two or more other persons present together used or threatened to use unlawful violence and such conduct, taken together was such as would cause a person of reasonable firmness present at said place to fear for his or another person’s safety, contrary to s. 15 of the Criminal Justice (Public Order) Act 1994.

2. The appellant has also appealed against the sentence, imposed on the 31st July 2017, of three years imprisonment in respect of count no. 1, six years imprisonment in respect of count no. 2, said sentences to be concurrent and to date from the 30th July 2015.
3. The grounds of appeal,(relating to conviction), relied upon by the appellant are:-

(i) the learned trial judges erred in law or in fact or in a mixed question of law and fact in admitting the statements of David Foran under s. 16 of the Criminal Justice Act 2006;
(ii) the learned trial judges erred in law or in fact or in a mixed question of law and fact in apportioning excessive weight to the statements of David Foran, admitted under s. 16 of the Criminal Justice Act 2006, and

(iii) the verdict was perverse and against the weight of the evidence.

4. The background facts can be briefly stated as follows. It is alleged that on the 25th November 2014 at Cornmarket Villas in Limerick David Foran met with another man for the purposes of receiving money from him. Mr. Foran was then confronted by a number of individuals some with their faces covered with scarves, and it is alleged that the appellant was one of those. The appellant’s face was not covered. These men challenged Mr. Foran as to why he was demanding money. He was then severely beaten by the men, his face having been covered by his hoodie, and in the course of that beating it is alleged that he was stabbed in the leg by the appellant.
5. Approximately two weeks previously, a road traffic accident occurred at Lelia Street in Limerick when Mr. Foran, a pedal cyclist was in collision with a Honda motorcycle. When gardaí arrived to investigate the motor cyclist gave a false name. His correct name was Cathal Kavanagh. He later gave his reasons to Rachel McAllister, the appellant’s partner, for giving a false name as the fact that he had no insurance and was disqualified and did not want to get into trouble with the gardaí. Mr. Foran was treated in hospital for his injuries. It was alleged that on the 15th November 2014, following discussions between Mr. Kavanagh on the one hand and Mr. Foran and Ms. McAllister, on the other hand, it was agreed that Mr. Kavanagh would compensate Mr. Foran with a sum of money and the transfer of legal ownership of the motorcycle as an alternative to Mr. Foran pursuing a claim through the courts. On the 25th November 2014 it was agreed that Mr. Foran would meet Mr. Kavanagh to conclude the deal. Shortly before the meeting, Ms. McAllister received a text message to the effect that Mr. Kavanagh was not available to attend the meeting but that another individual would do so on his behalf. It was immediately following the meeting with that other individual that the confrontation with a number of men, including the appellant, took place. At the time of the meeting Mr. Foran was wearing a bullet proof vest. He managed to pick up the knife that had been used to stab him in the assault as he escaped from the men and made his way home. He received treatment for his injuries in Limerick University Hospital, which included a 4cm deep puncture wound to his left thigh.

6. The central issue in the appeal concerns the admission into evidence pursuant to s. 16 of the Criminal Justice Act 2006 of two written statements made by Mr. Foran to gardaí on the 27th November 2014 and the 15th December 2014 respectively. The reading back of the first statement to Mr. Foran was video recorded, while the second was not, at the request of Mr. Foran. At trial, Mr. Foran’s evidence was broadly consistent with these statements except in relation to the identification of the appellant as the person who had threatened and stabbed him on the 25th November 2014.

7. On the 10th April 2015, approximately four months after Mr. Foran made his second statement to the gardaí, Mr. Foran signed a further statement in the presence of his solicitor, Mr. O’Brien. That statement read:-

“I, David Foran, of 7 Grattan Court, Clare Street in the city of Limerick (DOB 24/3/1984), which to formally withdraw the allegations made by me against a Larry McCarthy with an address at Tower Lodge, Crossagalla, in the city of Limerick, arising out of an incident in the Cornmarket area of Limerick city on or about the 26th November 2014.
I do not wish the matter to proceed and it is not my intention to attend to court.

I regret any inconvenience caused and I confirm that I wish no action to be taken against Larry McCarthy based on any erroneous statement I may have made.”

8. In his statements of the 27th November 2014 and the 15th December 2014 Mr. Foran provided a detailed account of his collision with the motorcycle in mid-November 2014 and of a number of meetings he held with Mr. Kavanagh in the immediate aftermath of that accident, and of the agreement he reached with Mr. Kavanagh in relation to compensation. He described how an arrangement was made to meet with Mr. Kavanagh’s cousin on the 25th November 2014, of going to that meeting, and being asked to accompany that person to the car park at Cornmarket Villas for the purposes of counting the money that was to be paid to him. He also provided a detailed account of being confronted by a number of men at the car park and, more specifically, being assaulted by a man he identified as the appellant. In relation to his references to the appellant, or at least to an individual whom he identified as Larry McCarthy, Mr. Foran stated:
(In the statement of the 27th November 2014)
“..(W)hen I went in through the gate a few fellas with their faces covered with scarves closed the gate behind me. Next, Larry McCarthy told me who he was. He was stocky with red hair and unshaven like me on his face. It wasn’t a beard, but like, he hadn’t shaven in a few days. He said, I know you’re David Foran. What are you doing demanding more off my cousin? I asked him what was he on about that Cathal had knocked me down and it was he who wanted to settle out of court. I asked what’s the story with the money and he told me I was getting no money. There was about seven others there as well. Larry hadn’t his face covered. The Paul fella, if that is his right name, hadn’t his face covered and two others hadn’t either. I got a slap of a baseball bat into the back of the head from one of the fellas whose face wasn’t covered. I’d describe the fellow that hit me with the baseball bat as being in his 30s, a bit smaller than me, dark hair going grey, square jaw. When he hit me my head went forward and Larry McCarthy pulled my hoody over my head and I started to get an unmerciful beating. One of the things that saved me was I was wearing a bullet-proof vest. I wear it for protection. When he pulled the hood over my head I got bounced off the ground and my face hit the ground. Larry McCarthy stabbed me in the leg with a knife. They were all dragging out of me. Larry said,”Fuck, we’re after leaving DNA.” They were all pulling at my vest to get it off and they pulled it off me and I fell to the ground. The knife I was stabbed with was in front of me and I picked it up and started waving it around. They all backed off me then…I told Larry come out himself and fight me one-on-one. He told me I had some mouth…I should have said that when Larry McCarthy first told me who he was he said “I know how you – know who you are as I was down in Cork prison with your brother Paul.”” .

9. In answer to a question from Garda Whelan, Can you describe what you saw inside the gates of Cornmarket Villas when you went in through the gates?, Mr. Foran replied:-
“…Larry came over to me, Larry McCarthy that is, plus he introduced himself to me, I knew him years anyway, my sister was going out with old Dessie Dundon and they are all the one, so I knows Larry for a good few years. Larry had a light green track suit… I was watchin Larry because he was out in the middle of the car park. He was obviously waiting for me. He was doing his best to intimidate me because they gave me the beating.”
10. On Day 2 of the trial, in the course of his examination by prosecution counsel, Mr. Byrne BL, Mr. Foran was asked to describe fully what had occurred on the 25th November 2014. His description was broadly consistent with the account given in both written statements to the gardaí. Where his account differed with these statements related to his identification of the appellant. The following exchange between Mr. Byrne and Mr. Foran proceeded as follows:-
“A. I just got in and when I got in the gate I got a chance just to barely talk to one person.
Q. Okay. And who was that person?

A. I don’t know his name.

Q. You don’t know his name?

A. No.

Q. Had you seen him before?

A. No.

Q. And what conversation did you have with that person?

A. Well, first like, it was, “Have you got the money?” Being honest, that’s what I said. “Have you got the money?”

Q. You said to – well, describe this person that you spoke to to us?

A. Describe him?

Q. Yes?

A. He’s a small bit smaller than myself.

Q. Okay. What age was he?

A. Nearly the same age. Could have been younger.

Q. Okay and could you describe his facial features?

A. Not really, no.

Q. Well, you were there?

A. I know I was there. But I – like I can’t describe his facial features or anything.

Q. Well, try?

A. Try?

Q. Try and describe his face. Well, had he..

A. Probably like your face, being honest.

Q. All right?

A. Yes.

Q. Did he have a beard, a moustache, anything like that that you recall?

A. No. No.

Q. Had he long hair or short hair? Do you remember that?

A. I don’t know. Being honest to you, I don’t know.

Q. Just think about that now. What kind of hair had he?

A. Well, first when detectives came to my house, I told Gerry Healy he had black hair.

Q. Okay. We’ll hear from Detective Garda Healy in due course?

A. Yes. And the other detective, what’s his name? Gerry Hogan? Came to me and told me that Larry had red hair.

Q. Would you mind just repeating that? Who did you say?

A. I said a detective came and told me that Larry had red hair, not black hair.

Q. Larry who?

A. Larry McCarthy.

Q. This Larry McCarthy?

A. Well, I don’t know this person.”

11. Shortly thereafter, Mr. Byrne, referring to the stab wound, asked Mr. Foran, “Who did that?”, to which Mr. Foran responded, “Don’t know.” They were clear inconsistencies between Mr. Foran evidence and what he had said in his statements. In his statements, he had identified the appellant by name and by appearance and had also identified him as the person who had stabbed him in the leg. In his statement of the 15th December 2014 Mr. Foran said that the appellant “had a light grey track suit” whereas in evidence he had said that this man wore “a jumper and pants”. In his statement of the 27th November 2014 the man identified by Mr. Foran as the appellant was “stocky with red hair” whereas in evidence he described the man as having black hair. In his statement of the 10th April 2015 made through his solicitors Mr. Foran confirmed the allegations made by him against a Larry McCarthy with an address at Tower Lodge, Crossagalla in the city of Limerick..”.
12. Faced with these inconsistencies, Mr. Byrne sought leave of the court to introduce into evidence the two statements of the 27th November and the 15th December 2014 pursuant to s. 16 of the Criminal Justice Act 2006. Evidence was taken from three gardaí and from Mr. Foran.

13. A lengthy and detailed ruling was made by the court permitting the admission into evidence of the said statements. The ruling of the presiding judge, Kennedy J., was as follows:-

“This is an application by the prosecution to admit the statements of David Foran pursuant to section 16 of the Criminal Justice Act 2006. The relevant portions of section 16 provide as follows: Section 16(1): ” Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as ‘the statement’) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination, (a) refuses to give evidence, (b) denies making the statement, or (c) gives evidence which is materially inconsistent with it. (2) The statement may be so admitted if (a) the witness confirms, or it is proved, that he or she made it, (b) the court is satisfied (i) that direct oral evidence of the fact concerned would be admissible in the proceedings, (ii) that it was made voluntarily, and (iii) that it is reliable, and (c) either (i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or (ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. (3) In deciding whether the statement is reliable the court shall have regard to (a) whether it was given on oath or affirmation or was video recorded, or (b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability, and shall also have regard to (i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or (ii) where the witness denies making the statement, any evidence given in relation to the denial. (4) The statement shall not be admitted in evidence under this section if the court is of opinion (a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or (b) that its admission is unnecessary, having regard to other evidence given in the proceedings. (5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.”
This application arose in circumstances where David Foran gave evidence broadly speaking in terms of his statements until a certain point in the narrative was reached. The prosecution contend that David Foran has given evidence which is materially inconsistent with the statements previously made by him to An Garda Síochána. We do not intend to rehearse the evidence to any great extent save to deal with certain aspects of the evidence. In broad summary, David Foran gave evidence that on the 14th of November 2014 he was the subject of a road traffic accident whereby he was knocked from his bicycle by a motor cyclist. He sustained injuries as a result and was conveyed to hospital. We have received the medical report in evidence and we heard evidence from his wife, Rachel Foran, in this and other respects. David Foran continued in his evidence and said that the driver of the motor cycle called to his house some days later and, in effect, sought to avoid and compromise any potential proceedings by an agreement to personally compensate David Foran for matters arising from the road traffic accident. The evidence disclosed that Cathal Kavanagh, the driver of the motor cycle, called to the Foran home on a number of occasions subsequent to the accident and, indeed, he was identified by the gardaí in evidence of CCTV footage going through the garden gate of the Foran house at Grattan Court in Limerick. Text messages and calls passed between two mobile phones, one attributed to Rachel Foran, the other attributed to Cathal Kavanagh. Arising from these contacts, David Foran, on the 25th of November 2014 on the evidence made his way to an area known as Cornmarket Villas. We note the content of a text message dated the 25th of November 2014 and timed at 14:12:31 sent from the number attributed to Cathal Kavanagh to the number attributed to Rachel Foran. The message reads as follows: “Well, man, I’m at work. My cousin is going to meet you and give you the money. Will I give you his number?” This Court was shown CCTV footage of the 14th of November 2014 and the 25th of November 2014. We note the time on the footage from Bridgeman’s adult shop relating to the 25th of November 2014 which shows a male believed by Detective Garda Whelan to be David Foran passing that shop. Allowing for the deduction of 35 seconds for real time, the time is circa 14:25, certainly after the time of the aforementioned text message. David Foran gave evidence of going to Cornmarket Villas, that he saw six to seven people there, that he could not describe any one of them, that he got a slap of a baseball bat over the head and that he was assaulted, which assault included a stab to his left thigh. He said that he spoke to an individual but was unable to describe that person. The said that he saw a knife on the ground in front of him, that he picked that up and walked home. He identified the knife in evidence. There is no forensic evidence in respect thereof.

Rachel Foran said her husband arrived home on the 25th of November 2014 and fell in the door. She described his injury and the level of blood which she noted. She said that he had his bullet proof vest in his hand and he was bearing a knife. We have received the medical report in respect of this incident which states that he, the witness, suffered a puncture wound to the lateral aspect of the left mid-thigh extending approximately four centimetres in depth which was closed under local anaesthetic with a single suture.

Section 16 of the 2006 Act provides that a relevant statement of a witness may, with the leave of a Court, be admitted as evidence of any fact mentioned in the statement. The witness must be available for cross-examination and in order to trigger and application pursuant to section 16, the prosecution must prove the existence of one of three states of affairs in terms of section 16 subsection (1) of the Act, specifically, 1, where the witness refuses to give evidence, 2, the witness denies making the statement, or, 3, gives evidence which is materially inconsistent with the statement. The prosecution in this instance seek to rely on the last matter. The statement or statements may be admitted if the making of the statement is proven and the Court is satisfied that direct oral evidence of a fact or facts concerned are admissible; that the statement was made voluntarily; and that the statements are reliable; and either that the statement was given under oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief or the Court is otherwise satisfied that when the statement was made, the witness understood the requirement to tell the truth. In deciding whether the statement is reliable, the section provides that the Court shall have regard to whether a statement was given under oath or affirmation or was video recorded or, if not, whether by reason of the circumstances in which the statement was made, there is other sufficient evidence in support of reliability, and shall also have regard to any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement or, where a witness denies making the statement, any evidence given in respect of the denial. The Act also provides in mandatory terms that the statement shall not be admitted if, having regard to all the circumstances, including any risk of unfairness to the accused, that in the interests of justice the statement ought not to be admitted or that such admission is unnecessary having regard to other evidence in the proceedings.

Therefore, in order to admit a statement, the Court must be satisfied beyond reasonable doubt that the statement is relevant, that the contents of the statement are admissible in evidence, that the statement was made by the witness, that the witness understood the requirement to tell the truth, that the statement was made voluntarily, that it is necessary to admit the statement, that the statement is reliable and that the witness is available for cross-examination and that the admission of the statement would not be contrary to the interests of justice. The onus of proof rests upon the prosecution to prove all these matters beyond reasonable doubt and it is clear that the threshold for admission is a high one and the admission of a statement under section 16 should only be permitted as a last resort. We will deal with each of the afore-mentioned matters.

The accused man is before this Court on two offences, both of which are arrestable offences. Two statements relevant to the proceedings have been made by David Foran. In that regard, we are satisfied to the required standard that the statements were made by the witness. The relevant statements are dated the 27th of November 2014 and the 15th of December 2014. The first point to be made is that the witness accepted in evidence that he made both statements and that each statement bears his signature. Furthermore, evidence was adduced by the prosecution, that being the evidence of Detective Gardaí Healy and Whelan as to the making of each statement by the witness on the relevant dates. So, not only is there acceptance by the witness as to the making of the statements and verification of his signature, but here is also evidence of the gardaí that such statements were made and we accept this evidence beyond reasonable doubt. The witness is available for cross-examination.

We are satisfied that the witness’ evidence before this Court is in certain respects materially inconsistent in the manner submitted by Mr Byrne on behalf of the prosecution with the content of the statements made to An Garda Síochána and therefore section 16 is triggered. We are satisfied that direct oral evidence of the content of the statement would be admissible in the proceedings subject to the usual rules of evidence. The potential evidence of what is alleged to have transpired at Cornmarket Villas on the relevant date at the relevant time is central to the issue to be determined by this Court.

We now look further to the statutory preconditions for the admission of such statements, dealing firstly with the issue of voluntariness. On this aspect of matters, we consider the following to be apposite: 1, on the 25th of November 2014 Detective Garda Healy called to Grattan Court; 2, he gave evidence of his observations regarding the condition of David Foran; 3, David Foran was not under arrest at the time of making either statement; 4, David Foran called to the station on the 27th of November 2014. He was not under any compulsion to do so; 5, David Foran returned to the station on the 15th of December 2014. Again, he was under no compulsion to do so; 6, whilst neither statement was recorded on audio video recording, the reading over of the first statement was recorded and it is quite clear that David Foran does no demur in any fashion from the content of that statement. We are satisfied on the evidence that there was no suggestion of any inducement as regards either statement and have no doubt that each statement was voluntary.

We now address the issue of reliability, which appears to be the issue in respect of which the defence place the most emphasis. Each statement contains a declaration by the witness in the usual manner, which is as follows: “I hereby declare that this statement is true to the best of my knowledge and belief and that I make it knowing that if it is tendered in evidence I will be liable to prosecution if I state in it anything which I know to be false or do not believe to be true.” As stated in DPP v. O’Brien and Stewart, while a statutory declaration in the above terms is not regarded by the 2006 Act as being as clear an indicator of reliability as an oath or affirmation or video recording, nonetheless, account can still be taken of such a declaration in addition to other matters in determining whether a statement is reliable and we so do. We are satisfied that the statements contain the necessary statutory declaration in terms of the Act and that the witness was fully cognisant of the requirement to tell the truth. A statement can only be admitted if a Court is satisfied that it is reliable. The statute provides specifically that the Court shall have regard to whether the statement was given on oath or affirmation or was video recorded or, where this does not apply, whether by reason of the circumstances in which it was made there is other sufficient evidence in support of its reliability. The Court also shall have regard to any explanation by the witness for giving evidence inconsistent with the statement. When the first statement was read over to the witness, this was recorded on audio video tape. We are invited by the prosecution to look to the witness’ demeanour when this is being done. In that context, when the statement is being read over, the witness does not seek to dispute the contents in any way. In fact, not only is this so, but at the conclusion of this process he says, “When you were reading it out, it was like it was all happening again.” This clearly indicates an acceptance of the content of the statement and so not only does the witness acknowledge that the statement is correct and signs the statement in this regard, but he also affirms the content by that comment. This is relevant to the assessment of reliability. We note that the second statement was not the subject of a video recording but it is clear that this was, of course, an additional statement which makes reference to the first statement. Again, the second statement is signed and contains a statutory declaration and it was acknowledged by the witness as being correct and bears his signature. In assessing the reliability of the statements we look also to the circumstances of the making of each statement and the content of the statements, together with as an assessment as to whether there are contained within the evidence any indicators of reliability. There are aspects of the statements which are supported, in our view, by other evidence. In detailing certain matters, we note and take account of the submissions made by Mr White, senior counsel, on behalf of the accused man. There are some discrepancies in the accounts given by Rachel and David Foran. It is also so that David Foran used cannabis at the time and, according to the Detective Garda, had a drug habit and a criminal record. We have considered all of these matters. However, we are entitled to and do take into consideration the fact and the terms of the text messages between the aforementioned phones, the CCTV footage of the 14th of November 2014 and the 25th of November 2014. The CCTV footage of the movements of David Foran in the aftermath of the aforementioned text message is an indicator, in our view, of reliability in that his movements as recorded support aspects of his statements. Furthermore, we are entitled for the purpose of the assessment of admissibility of the statements to rely upon the evidence of Detective Garda Whelan of his purported identification of the accused man outside Cornmarket Villas some time before the alleged incident. The weight to be given to that evidence is a different matter for assessment ultimately by the triers of fact. We also take into account as an indicator of reliability the evidence of Rachel Foran regarding the knife and the medical evidence regarding the injury to David Foran. We also take into account in this assessment and for the purposes of this analysis the evidence of Detective Garda Healy regarding David Foran’s condition on the relevant date.

We have considered very carefully the submissions made by the defence in every respect. We note that the test of reliability was considered by the Court of Criminal Appeal in DPP v. O’Brien [2010] IECCA 103. The Court must examine the circumstances and factors surrounding the making of the statement and, as stated in that decision, “To ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the Court to be satisfied that the actual content of the statement is reliable in the sense that it is true.” The Court went on to say, and as quoted in Mr McGrath’s text at page 362, “If the concept of reliability is to be correctly or in part measured also by reference to the reliability of the content of the statement or its substance, there were factors present in this trial which indicate clearly that the content of the statement was reliable. In substance, it was supported by the very significant medical findings and also to a certain degree by the account given by the witness’ sister which was admissible having regard to the similar facts doctrine.”

In the knowledge that the burden of proof rests on the prosecution, we are satisfied beyond reasonable doubt in all the circumstances that the statements are reliable. It is crystal clear that the evidence is necessary, given that the evidence of David Foran as to what allegedly occurred on the relevant date is central to the issues in dispute. We have had regard to the explanation offered by the witness for giving evidence inconsistent with his statements. He asserted in evidence that when he mentioned the name Larry McCarthy to the gardaí, he was in fact referring to another Larry McCarthy, that is an individual with black hair. We note in his statements which he accepts as being true on evidence, that he not only gives the name Larry McCarthy but he also gives a description of the individual who he says stabbed him as having red hair. There is no mention of black hair in the description given in the statements. He further asserted in evidence that the gardaí went through a series of photographs with him in order to identify his alleged assailant. This was denied my members of An Garda Síochána. We have carefully assessed the evidence of the witness and his demeanour in giving this evidence and we reject his explanations. We are satisfied, therefore, beyond reasonable doubt, that the statements are admissible pursuant to section 16 of the Criminal Justice Act 2006 and we are satisfied that to permit the admission of these statements in terms of section 16 does not carry a risk of unfairness to the accused man and we accede to the application by the prosecution.”

14. In submissions made to this court it is conceded on behalf of the appellant that a number of the statutory requirements for the admission into evidence of statements pursuant to s. 16 were satisfied, including that:-
(i) the statements were relevant to the proceedings;
(ii) the appellant confirmed that he made the statements and acknowledged his signature, and that he gave evidence that was for the most part consistent with his statements, apart from the aspect relating to his identification of the appellant;

(iii) direct oral evidence of the inconsistency was properly admissible;

(iv) the statements were voluntary, and

(v) his statement was not recorded but was read back but its reading back to the appellant was recorded.

15. The focus of the appeal can be gleaned from the following quotation from the appellant’s written submissions to this court. They state, at para 38:-
“The principal concern for the appellant was that the statements were not in any way reliable and the statements should be excluded on the basis of unreliability and in the interests of justice.”

16. It is a requirement that the statement be deemed reliable. Section 16(2)(iii) provides that “the statement may be so admitted if…the court is satisfied…that it is reliable”. Section 16(3) states:-

“In deciding whether the statement is reliable the court shall have regard to:-
(a) whether it was given on oath or affirmation or was video recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability”.

17. In DPP v. O’Brien [2011] 1 IR 273 at 294, the judgment of the Court of Criminal Appeal Stated:-
“…It seems relatively clear that the Act, in requiring that the statement be found to be “reliable” appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true.”
18. The trial court’s ruling in relation to the application to admit the statements pursuant to s. 16 was, by any account, comprehensive and detailed. In relation to the issue as to whether the statements were reliable the trial court noted that they contained the necessary statutory declarations. It noted that the first statement was read over to the witness and that this process was video taped, and that the second statement in respect of which no aspect was video taped was closely linked to the first statement, and was, in the trial court’s view, “an additional statement which makes reference to the first statement”. It noted that there were aspects of the statements which were supported by other evidence including evidence relating to the knife and the injuries sustained by Mr. Foran. It noted, and quoted, an extract from McGrath on Evidence, (2nd Edition, 2014) at p. 62:-
“If the concept of reliability is to be correctly or in part measured also by reference to the reliability of the contents of the statement or its substance, there were factors present in this trial which indicate clearly that the contents of the statement was reliable. In substance, it was supported by the very significant medical findings and also to a certain degree by the account given by the witnesses’ sister which was admissible having regard to the similar facts doctrine”.
19. The trial court expressed its satisfaction beyond reasonable doubt that the statements were reliable.
20. Section 16(4) provides as follows:-

“the statement shall not be admitted in evidence under this section if the court is of opinion:-

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused, or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.”

21. In relation to (a) it is difficult to imagine any circumstances where, in the interests of justice, a refusal to admit the statements into evidence might be justified. It is of paramount importance and very much in the interests of justice that an accused person receives a fair trial. The fact that evidence adverse to the accused is admitted does not undermine the fairness of the trial if such evidence is admitted with due regard to the rules of evidence and relevant statutory provisions. The admission into evidence of the statements pursuant to s. 16 was not, in the court’s view, having regard to their voluntariness and their reliability, unfair to the appellant. The fact that their admissions strengthened the prosecution case against him does not of itself render their introduction unfair or contrary to the interests of justice.
22. The requirement that the statement were necessary (s. 16(4)(b) above) this court is satisfied that the trial court’s ruling in this respect was correct, when it stated:-

“It is crystal clear that the evidence is necessary, given that the evidence of David Foran as to what allegedly occurred on the relevant date is central to the issues in dispute.”
23. The content of the statements in this case were, to a very large extent, acknowledged on behalf of the appellant as being truthful and correct. Their voluntariness was also acknowledged as were the signatures on the statements. The trial court had the benefit of hearing evidence relating to the statements first hand so that its decision in relation to them must carry significant weight. This court would, if considering this matter at first instance, and considering the relevant criteria objectively, arrive at a precisely similar conclusion to that reached by the trial court.
24. The court is satisfied therefore that the decision to admit the statements into evidence pursuant to s. 16 of the Act of 2006 was correct, and this ground of appeal is therefore dismissed.

25. The remaining ground of appeal is the contention that the “verdict was perverse and against the weight of the evidence”. The extent to which an appellate court would likely intervene and quash a decision of a jury as being perverse is very limited. The reasoning applicable to a non-jury court is no different. In DPP v. Cecil Tomkins [2012] IECCA83, the Court of Criminal Appeal stated (at para 21):-

“..the court would be very slow to intervene where it is satisfied that a judge has placed all relevant matters before the jury, and has fully and properly instructed them as to the burden and standard of proof. However, an appeal court may intervene if the judge’s direction to the jury is inadequate either concerning witness credibility, or some matter of law. This is entirely distinct however from finding fault with the verdict of the jury…this court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence. (See DPP v. Quinn, 23 March 1998 CCA; DPP v. Morrissey, CCA 10 July 1998). In assessing this point the court will look at all the evidence which was before the jury, not selective portions of that evidence.”
26. In this case there was no application made to the trial court at the conclusion of the prosecution case for a direction that the prosecution evidence was insufficient or inherently weak. An objective view of the evidence heard by the court was such that it was open to it to return a verdict of guilty in the event that it accepted as truthful particular evidence. Furthermore, had the case been heard before a jury a verdict of guilty would not have been perverse and that observation is no less relevant because of the absence of a jury.
27. In a decision of this court in DPP v. Nadwodny [2015] IECA 307 the jurisprudence of the former court of Criminal Appeal stated in Tomkins was applied. In Tomkins it was emphasised that there is a high threshold to be crossed in terms of perversity and that an appeal court should only quash a decision as being perverse where serious doubts exist about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury, was against the weight of the evidence. Moreover, in any assessment of a perversity claim, a court must look at all the evidence which was adduced in the course of the trial and not just selected portions of it.

28. The court is therefore satisfied that the verdict of the trial court was not perverse. It was open to the trial court to reach the verdict it did on the basis of the evidence presented to it. That ground of appeal is therefore dismissed.
Conclusion
29. As all grounds of appeal have failed, the appeal against conviction is dismissed, and the court will proceed in due course to determine the sentence appeal.