Hearsay Issues
Cases
DPP v Albie Lonergan
[2009] IECCA 52
JUDGMENT of the Court delivered on the 8th day of May, 2009 by Kearns J.
On 13th December, 2007 the applicant was convicted in the Central Criminal Court of the murder of his brother, Michael Lonergan, at 58 Baloonagh Estate, Tralee, County Kerry, on 31st December, 2006. The evidence established that shortly after 6 p.m. on the date in question an altercation broke out between the two brothers outside the porch of the dwelling house in question in the course of which Michael Lonergan sustained two stab wounds to the chest and one stab wound to the right thigh as a result of which he died later on the same day. The prosecution sought successfully to lead evidence from a number of people who were present at the said address at the time of the incident and in whose presence the wounded victim made statements in the aftermath of the stabbing. Louise O’Brien, the partner of Emmet Coffey, a brother of the deceased’s wife, told the Court that the two brothers started getting abusive towards each other and were throwing digs at each other. She called for her partner, Emmet Coffey, to come out of the house and separate them. While waiting for Emmet Coffey to come out of the house she saw the applicant throw a knife from his left hand onto the floor and saw Michael Lonergan clutching his side. Michael Lonergan turned to her and said he had been stabbed. His exact words were “the bastard stabbed me”. She also gave evidence that in the immediate aftermath of the incident that her partner Emmet Coffey chased the applicant down the road. At that point Michael Lonergan was lying down in the hallway of the dwelling house and holding his side. Some ten or fifteen minutes later Emmet Coffey returned to the house at which point strenuous efforts were made to staunch bleeding from the wounds sustained by Michael Lonergan. This involved putting pressure on the wound with a tea towel. Louise O’Brien gave evidence that while this was happening, Michael Lonergan said to Emmet Coffey “the bastard stabbed me, my own brother stabbed me”. Louise O’Brien clarified that no other person was involved in the fight with the applicant other than Michael Lonergan.
Emmet Coffey stated in evidence that on returning to the house having chased the applicant, Michael Lonergan said to him “he is after stabbing me, Albie is after stabbing me”. Emmet Coffey stated that Michael Lonergan also asked “did I catch him?. Mr. Coffey believed that the interval between his pursuit of the applicant and his return to the house was within five minutes.
Yvonne Lonergan, the wife of the deceased, also testified that when she went out to the hallway of the house the deceased told her it was the applicant who had stabbed him. Another witness, Jonathan Bentley, was also present in the house when the argument took place. He left the room in which he was sitting to go to the toilet and encountered Michael Lonergan in the hallway. He had his hand on his stomach and he was “all blood”. He caught Michael Lonergan as he was going to fall to the ground. Asked if the deceased had said anything, Mr. Bentley stated that the deceased replied “the cunt stabbed me”.
At the outset of the trial, an objection was raised by counsel for the applicant that only those statements immediately contemporaneous with the stabbing should be admitted in evidence and that statements made some ten or fifteen minutes later, notably that of Mr. Emmet Coffey, should not be regarded as admissible because they did not form part of the res gestae.
Before ruling on this objection, the learned trial judge conducted a voir dire examination of each of the aforementioned witnesses. As a result of a measure of agreement between the prosecution and the defence, the proposed evidence to be given by the various witnesses was edited and limited to that outlined above. The prosecution argued that all of the statements made by the deceased, which clearly identified the applicant as his assailant, were admissible as forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident.
Following lengthy submissions involving much citation of relevant case law on the topic, the learned trial judge ruled that all of the statements of the deceased were admissible. That ruling is the first matter giving rise to the present appeal.
A separate ground of appeal arises from the fact that on the fourth day of the trial the foreman of the jury brought to the attention of the learned trial judge that an issue had arisen over the weekend. It transpired that one of the members of the jury had been approached by an unidentified party in a public house and was told by this party to “make the correct decision”.
On being advised of this matter, the learned trial judge conducted a discussion initially with counsel in the absence of the jury. The jury was then recalled and a request was made of the juror to identify himself which he duly did. At this stage the juror recounted the circumstances whereby he was in his local pub, was going to the bathroom and got tapped on the shoulder by a gentleman who was unknown to him and who said “I hope you make the proper decision next week”. The juror protested saying that the individual had got “the wrong guy”. Asked if he was intimidated by this approach, the juror responded “no”. There then followed a question advanced by the trial judge as follows:
“It is very good of you to bring it to our attention. It is, dare I say it, one has heard of more serious approaches, if you like. And if I may say so you seem to be, you weren’t put in fear or anything?
JUROR: No
JUDGE: I must ask you this. You have taken an oath to try this case on the evidence and not on any other basis. It is a perfectly human reaction for you, and for all of you, that this might, might perhaps subconsciously even, taint your view of the case one way or another. And it is to be presumed, of course, that you will act in accordance with your oaths. But I wonder do you feel, some people would feel that they might have been tainted by it and are prepared to say they would be. Do you feel you can continue this case purely on the evidence and excluding from your mind any, how should we put it, sinister implications?
JUROR: Yes, your honour”
The defence contended that the form of the question put by the trial judge invited only a positive response and that the judge effectively led the jury and the individual juror in question into the position whereby they and he were left with no real alternative other than to affirm the position as presented by the learned trial judge.
In response, counsel for the prosecution submitted that the approach of the trial judge to the issue of one of the members of the jury being approached was appropriate and correct. Specifically, counsel for the prosecution pointed out that the applicant’s counsel did not seek the discharge of the jury, but simply requested that the trial judge would insure that the applicant had a fair trial, stating: “That is as far as I wish to go”.
Mr. Denis Vaughan-Buckley, senior counsel for the respondent, argued that the learned trial judge had applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, in that he applied the objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial.
SPONTANEOUS DECLARATIONS/RES GESTAE
The prosecution sought the admission of the various statements made by Michael Lonergan on the sole basis that the same formed part of the res gestae and as such were admissible as evidence of the truth of their contents. The prosecution did not seek their admission as “dying declarations” or on any other basis.
It is well established in Irish law that spontaneous declarations constitute an exception to the hearsay rule. As McGrath Evidence (Thomson Roundhall, 2005) makes clear at para. 5-53:-
“Statements concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of concoction, distortion or error can be disregarded, are admissible as evidence of the truth of their contents. The rationale for the admission of this category of out of court statements is evident from the formulation of the exception – they are made in circumstances where the declarant’s mind is so dominated by a startling or overwhelming event that the statement is a spontaneous and instinctive reaction, made without any opportunity for the declarant to devise a false statement.”
The test for admissibility was formulated by the decision of the Privy Council in Ratten v. R [1972] AC 378 where Lord Wilberforce stated at p.389:-
“The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.”
The approach outlined by Lord Wilberforce in Ratten was later endorsed by the House of Lords in R v. Andrews [1987] AC 281. Lord Ackner set out the relevant principles in the following manner at p.300 to 301:-
“1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event …
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely … malice …
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error … In such circumstances the trial judge must consider whether he can exclude the possibility of error.”
The principles as thus enunciated were subsequently applied in R v. Carnall [1995] Crim. L. R. 944 where statements made by the deceased more than an hour after he had been attacked, badly beaten and stabbed were held to have been properly admitted notwithstanding the lapse of time. In delivering the judgment of the Court of Appeal, Lord Taylor C.J. stated:-
“We do not consider that the time factor, in regard to when a statement claimed to be part of the res gestae, is made, is conclusive. That much appears from the passage we have quoted from Lord Ackner (in R v. Andrews [1987] AC 281). We also note that in R v. O’Shea (CA 24.7.86) the period which had elapsed before the statement in question was made after the event was of the order of an hour. Although it is true that the issues in that case were different, the lapse of time does show that it is not necessary that the evidence claimed to be part of the res gestae should have occurred at, or within minutes of, the event which precipitated it. It must be a matter for the trial judge in any given case to look at all the circumstances. The crucial question is whether there is any real possibility of concoction or distortion, or whether the judge feels confident that the maker of the statements was at the time dominated in his thoughts by the event which had occurred so that what he said could be regarded as unaffected by ex post facto reasoning or fabrication.”
The leading Irish authority on this aspect of res gestae is the decision of this Court in The People (at the suit of the Attorney General) v. Crosbie [1966] IR 490. In that case the appellants C. and M., together with two other accused were charged with the murder of C.N.M. The charge arose out of a fight which developed at the “read” room at the Dublin Docks in the course of which C.N.M. was stabbed by C. Within a minute of being so stabbed, C.N.M. said when C. (but not any of the other accused, on the evidence) was standing near him – “he has a knife, he stabbed me”. The appellants were convicted of the manslaughter of C.N.M. On an application by both of them for leave to appeal against conviction it was held by this Court that the words spoken by C.N.M. were admissible against all the accused, although it was hearsay evidence, because it formed part of the criminal act for which the accused were being tried.
In delivering the judgment of the Court, Kenny J. stated as follows at p.496:-
“The Court is of opinion that evidence of the statement made by Noel Murphy immediately after he had been stabbed by Crosbie was admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.”
Having considered a number of English authorities, including DPP v. Christie [1914] AC 545 and Teper v. R [1952] AC 480, Kenny J. stated at pp.497 to 498:-
“The words spoken by Noel Murphy were spoken within one minute of the stabbing. They related directly to the incident which was being investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand are adopted, the words were so clearly associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real evidence and not merely a reported statement.”
In Teper v. R, Lord Normand had stated at pp.486 to 487:-
“… The rule against the admission of hearsay evidence is fundamental … Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae … It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”
In the present appeal, counsel for the applicant has argued that the trial judge went further than this Court had done in Crosbie because he took a “composite approach” to the issue which adopted law evolved in England and which appeared to be premised on the possibility of concoction or fabrication as the ultimate test rather than contemporaneity.
However, this Court does not see the decision in Crosbie as being in conflict with the decision of the Privy Council in Ratten v. R or the decision of the House of Lords in R v. Andrews albeit that those decisions carry the reasoning in Crosbie somewhat further. The Court is satisfied that the more evolved formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in Crosbie. The composite approach adopted by the trial judge which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this Court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given time period as to do so would lead to arbitrary and unfair results. Time in this context is an important factor but not a determinant. The true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the particular circumstances of the case.
In the instant case it was never put or suggested to any of the witnesses that the statements as having been made by the deceased were not in fact so made. No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than that the applicant had killed his brother. No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any such motive. Furthermore, counsel for the applicant has not really challenged the admissibility of the statements made by the deceased in the immediate aftermath of the stabbing. The challenge is effectively confined to the statements made by Michael Lonergan following the return of Emmet Coffey to the dwelling house following his chase of the applicant down the street.
The Court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted. They formed part of the same transaction, were sufficiently contemporaneous, and furthermore the Court is satisfied that there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified.
The Court is of the view therefore that this ground of appeal must fail.
INTERFERENCE WITH THE JURY
The other ground of appeal, namely, that the trial judge should have discharged the jury because of possible interference with a member of the jury, can be quickly dealt with.
In the view of the Court, the learned trial judge applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, being an objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial.
The factual situation in the instant case is very different from that pertaining in DPP v. Mulder. The latter involved a culmination of a number of incidents:-
(a) At the arraignment in front of the jury panel the deceased’s brother shouted from the public gallery.
(b) At that stage the judge questioned the deceased’s brother in relation to the shouting and he stated that it was just his reaction at seeing his sister’s husband who had allegedly strangled her.
(c) On the third day of the trial, prosecution counsel applied for an order excluding the deceased’s brother and his wife from court while the evidence continued, due to concerns by the gardai as to the behaviour of the deceased’s brother and his wife in court.
(d) The note from the foreman of the jury stated that the deceased’s brother was making himself “familiar” with some members of the jury.
(e) After the trial judge’s request to the foreman to ascertain the correct facts, the foreman addressed the court and referred to the outburst at the arraignment by the deceased’s brother, and stated that while the jury were waiting in the corridor outside the court, the deceased’s brother borrowed one of the juror’s newspaper and read out an article referring to the outburst indicating that this was him.
(f) The foreman stated that the juror felt that the deceased’s brother was familiarising himself with him and at the end of that day he greeted the juror with a smile and a nod.
(g) He further stated that the juror in question felt somewhat intimidated and uncomfortable.
(h) When the juror was questioned by the judge there was a conflict in his answers from that which the foreman had reported.
In delivering the judgment of this Court in Mulder, Geoghegan J. stated at p. 806:-
“While courts should be reluctant to discharge a jury because of individual incidents involving communication with a juror, the nature of this intervention and the cumulative effect of the incidents and the conflict to some extent in the reports given to the judge would have all led an observer to be concerned that there would be a risk of an unfair trial.”
No such problems arise in the instant case. The incident consisted of a simple remark or approach made in a public house which had no effect on the juror in question. No objection was taken to the form of the enquiry made by the learned trial judge and no objections were raised to any of the questions raised by the learned trial judge in that context. The Court is satisfied that the learned trial judge conducted the enquiry in question in an entirely appropriate manner and that any suggestion that he coerced or indicated that the jury should respond to his questions in a particular manner is completely unfounded.
The Court would dismiss the appeal on this ground also.
D.P.P. v. O’Kelly
[1998] IEHC 22 (10th February, 1998)
THE HIGH COURT
1997 No. 264 S.S.
IN THE MATTER OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
Judgment of Mr. Justice McCracken delivered on the 10th day of February, 1998.
1. This is a case stated by Judge Desmond Windle pursuant to Section 2 of the Summary Jurisdiction Act, 1857 on 12th February, 1996. It concerns a very net point regarding evidence of compliance with the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987.
2. The Respondent in the present case was arrested under Section 49(8) of the Road Traffic Act, 1961, and was subsequently charged under Section 49(2) and Section 6(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994. At the hearing before District Judge Windle the solicitor for the Director of Public Prosecutions requested an adjournment to enable Sergeant Kenny, the member in charge of the relevant Garda station, to attend Court. The adjournment was refused by Judge Windle. The case proceeded, and Garda Lynn, the prosecuting Garda, gave evidence that he heard Sergeant Kenny tell the Respondent why he had been arrested, that he had a right to call a solicitor or other person and that he might exercise these rights at any time. He further stated that a notice of rights for persons in custody was given to the Respondent.
3. At the close of the prosecution case, the Respondent’s solicitor submitted that Garda Lynn’s evidence in relation to the Custody Regulations was inadmissible, as it was hearsay evidence, and that accordingly there was no evidence that the Regulations had been complied with and that the Respondent had been given the necessary information. The District Judge accepted this submission and held there had been a failure to prove compliance with the Regulations.
4. At the request of the Appellant, District Judge Windle sought the opinion of this Court on the following questions:-
“(a) Was I correct in law in holding that the evidence of Garda Lynn as to compliance by Sergeant Kenny with the Regulations was hearsay?
(b) If the answer to question (a) be in the affirmative, was I correct in law in holding that the evidence of Garda Lynn, being hearsay, did not fall within any exception to the rule against hearsay as set out in the within case stated?
(c) If the answer to question (a) and question (b) be in the affirmative, was I correct in law in holding for the reasons set out in this case stated that I should exercise my discretion as to whether to admit the evidence gathered pursuant to Section 13 of the Road Traffic Act, 1994 in favour of the Respondent?”
5. What the Regulations require is that certain information must be given to an accused person on his arrest, and he must be given a written document setting out his rights by the member in charge of the relevant Garda station. Counsel for the Respondent submitted that this imposed an onerous duty on the member in charge, and that he must be satisfied that the accused understood his rights, as the purpose of the Regulations is to ensure that the accused is aware of his rights. I do not accept that this is a correct analysis of the situation. The Regulations require that the accused be informed of his rights, whether he understands them or not, and the essential proof at the hearing is that he was so informed. In my opinion, all that is required is that the relevant information is given to the accused, and the relevant notice is handed to him.
6. That being so, the only evidence that was required to be given was that the words were spoken and the notice handed over. Garda Lynn heard the words spoken in the presence of the accused and saw the notice being handed over. He was entitled to give evidence of these facts, and he did so.
In Curran -v- Clarke , (1963) I.R. 368 at page 378 Kingsmill Moore J. said in relation to hearsay evidence:-
“The actual question put and the objects for which it was put in each case has to be considered. In view of some of the arguments addressed to the Court, it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay.”
7. He then continued further in the page:-
“The utterance of the words may itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. To prove, by the evidence of a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay.”
8. It appears to me that is the situation in the present case, is that there was sufficient evidence before the Court that the Respondent had been given the necessary information pursuant to the custody Regulations.
9. Accordingly, I would answer question (a) posed by the learned District Judge as “no”, and the other two questions, therefore, do not arise.
People (DPP) v Carroll [2018] IECA 285
JUDGMENT of the Court delivered on the 31st day of July 2018 by Birmingham P.
1. On 26th January 2016, the appellant was convicted by a majority verdict (10:2) of counts of rape and s. 4 anal rape. He was subsequently sentenced to a term of ten years imprisonment. He has appealed against his conviction and the severity of sentence. This judgment deals only with the conviction aspect of his appeal.
Background
2. The case involves events alleged to have occurred on a single occasion at a primary school in Tullamore, County Offaly. The offences were laid on the indictment as having occurred between 1st September 1997 and 30th June 1998. The complainant was between six and eight years during the time covered by the indictment and was a pupil in the school where the events are alleged to have occurred. The accused, now appellant, was a drama teacher who came to the school to hold drama classes and put on shows after school hours.
3. The complainant told the jury that the appellant could be sharp with children, but had always been kind to her. She went on to describe an occasion when she was in the school hall with the appellant. She was on the stage and the appellant asked her would she like to play a game. He then proceeded to penetrate her, vaginally, and then anally. According to the complainant, at that stage, she saw the school caretaker, ‘Martin’, enter the hall. She says that Martin “went for” Mr. Carroll; she was not sure whether he punched him or not, but he was angry. She left the hall and encountered a black-haired cleaner. Another female member of the school staff, a friend of her mother’s, told the cleaning lady to bring the complainant to the toilet and to clean her up. She says that when she emerged from the toilet, Mary Berry, the school Secretary, told her not to tell her mother, that it would upset her.
4. In November 2012, the complainant reported matters to Gardaà and an investigation commenced. As part of that investigation, Mr. Carroll was arrested in September 2013, and, when interviewed during the course of detention, he emphatically denied the allegations. Indeed, he indicated that he had no recollection of the complainant as a participant in his after school classes.
Grounds of Appeal
5. Essentially, three Grounds of Appeal are relied upon:
(i) That the judge erred in failing to discharge the jury, when a witness, Mary Berry, in the course of giving evidence, introduced hearsay of a prejudicial nature;
(ii) that the case should have been withdrawn from the jury and a verdict of not guilty by direction recorded and
(iii) that the judge erred, on 22nd January 2016, Day 3 of the trial, in failing to hold an enquiry into an issue raised by the defence legal team that a juror, upon returning to Court during the course of the jury deliberations, interacted with the injured party and other people in her company.
6. It may be noted that a motion was brought seeking to add two grounds: one relating to the failure to adjourn the case against a background of late disclosure and the other seeking to argue that the verdict of the jury was perverse. The issue about late disclosure was not proceeded with as it was accepted that the documents in question had been disclosed at an earlier stage, and insofar as the contention that the verdict was perverse is concerned, counsel acknowledged that this overlapped with the ground that suggested that the case should have been withdrawn from the jury.
The Application for a Discharge of the Jury
7. On the morning of Day 2 of the trial, Mary Berry, the former school secretary, was called to give evidence. Prosecution counsel asked her about an occasion when the complainant rang the school in November 2012, seeking a telephone number for the school caretaker, Martin Smith. This gave rise to the following exchange:
“Q. And I think that you had a word with Mr. Smith and asked him that if he recalled anything to let you know: isn’t that right?
A. I went to Mr. Smith’s house because I couldn’t give out the number, under confidentiality rules. I went up to the house and I asked Matty, I said ‘Matty, would you remember anything got to do with KD and Kevin Carroll?’
Q. Yes?
A. And Matty, at the time –
Q . Sorry, I beg your pardon, yes?
A. Yes, Matty, at the time, said to me ‘well’ he said, ‘Mary, all I’d remember’ he says is, ‘Kevin, when the kids would be up on the stage, looking under the skirts, right?’
8. Defence counsel immediately indicated that he had an issue which he wanted to raise in the absence of the jury. When the jury withdrew, he then sought the discharge of the jury. He contended that what Ms. Berry had said was “absolutely prejudicial”; was of no probative value; he did not know how the judge was going to address what had happened and he felt that he did not think that it could be put out of the jury’s mind. The only application he could make was that the jury be discharged. The application was resisted by the prosecution and the judge then ruled as follows:
“[a]lright, well, Ms. Berry got into the witness box, we’d hardly started the evidence. Mr. Dillon [Senior Counsel for the prosecution], in fairness to you, I think she did get ahead of you and I’m not sure that you even heard it initially as she said it, I’m not sure that you did, but that’s neither here nor there. She said what she said and it’s unfortunate that she said it. However, the position is she has attributed this to Marty Smith, Marty has already given his evidence. It’s not something he said in his evidence. He made no reference whatsoever to that as Mr. Smith [counsel for the defence] here representing the defendant says about Marty Smith, he was clear in what he said. It’s unfortunate that it was said, it shouldn’t have been said and it does create a difficulty for Mr. Carroll.
But I have to look at the overall situation and what I’m being asked to do is to discharge the jury in this light and I’m not disposed to doing that so I’m not going to discharge the jury. Now, from time to time in trials, these types of things arise. One way of dealing with it is that no reference is made to it whatsoever in the summing up, in my summing up to the jury of the evidence as given, but because it’s a short case, it is, in fact, something that might have made an impact on them. They might have heard it, I don’t know whether they did or not, but I have to suppose that, in favour of Mr. Carroll that they did, so I think I’m going to have to say to them that Mary Berry said something in her evidence, she was attributing that to Marty Smith, that was not what Marty Smith said in his evidence, and so, in that specific respect, I’m going to have to specifically tell them that they must disregard that because it wasn’t evidence that was given by Marty Smith, although she attributed it to him and I’ll leave it at that.”
Then, in the course of her charge on Day 3 of the trial, the judge commented:
“[s]he said the [phone] conversation was about the caretaker, Mr. Smith, and this person who was on the phone was looking for his number, but because of confidentiality, Mary Berry couldn’t give out the number and she had to go up to Marty and ask him if she could give his number out. Then she said, and I’ll just get it here now, then she said – she was asked ‘and I think you had a word with Mr. Smith and asked him if he recalled anything to let you know’ and she said ‘yes, Matty at the time said to me – well, he said, Mary, all I’d remember, he says is Kevin, when the kids would be up on the stage, looking under the skirts’. Now, Mary Berry has attributed this to Marty. You’ve heard the evidence from Marty, you’ve heard me give Marty summary. Marty never said that in his evidence and I’m directing you now to disregard that. You are not to take that sentence into your deliberations in reaching your verdict in this case. It’s not something that was said by Marty in his evidence here in the trial, it was something that another witness attributed to Marty, Marty did not say that and it’s in these circumstances that you disregard it completely, do you understand that, Ladies and Gentlemen? Alright.”
9. The Court is quite satisfied that the trial judge was fully entitled to decline to discharge the jury. In this jurisdiction, prosecution counsel does not discuss with witnesses the evidence that they will be giving at trial. Indeed, with the exception of the complainant, the general position is that counsel will not even meet with witnesses in advance. This practice is regarded as contributing to the fairness of the trial and to the integrity of the trial process. There are other jurisdictions where it is standard practice for witnesses to be “prepped” by lawyers, but that has never been the way in this jurisdiction. One side-effect of our system is that it does mean that, from time to time, a witness will say something unexpected, or use language other than that which was anticipated. However, the occasions when that will require a jury to be discharged are likely to be very rare. Discharge should be seen as very much a last resort.
10. If one looks at the background against which Mary Berry made her remarks, further strong support for the view that it was not a case for a discharge emerges. The defence was, and indeed are now, suggesting that the jury should have been discharged because they had learnt that the school caretaker believed that Mr. Carroll looked up the skirts of girls while they were on stage. The school caretaker, Mr. Smith, had given evidence on the first day of the trial. In his direct evidence, he had told the jury that he recalled an occasion when he had entered the school hall; the complainant was on the knees of the accused; there was no-one else in the hall at the time; he saw Mr. Carroll pulling up the zip of his trousers; there was a bulge in his trousers and Mr. Carroll had an erection.
11. In cross-examination, he was challenged on this account. Counsel for the defence also asked whether he had told a meeting attended by Father Donnelly, the Curate with responsibility for the school, Mary Berry, Finnoula Doheny, and Mairead Naughton, senior school figures. He was asked about the fact that Father Donnelly’s notes of the meeting record that Mr. Smith had said that he came into the hall on a date unknown when he was a caretaker, and he saw the drama teacher, Kevin Carroll, acting inappropriately with a student; that Mr. Smith said that he punched Kevin Carroll, broke his glasses, and that he brought K away to fix her up. Mr. Smith denied that he had said what Father Donnelly recorded him as having said and denied that he had acted in the way described. What he was recorded as saying was broadly consistent with the account of the incident given by the complainant. Counsel for the prosecution, in the presence of the jury, offered to call those mentioned by Father Donnelly; Finnoula Doheny, Mairead Naughton, and Maura McRedmond, who are witnesses on the book of evidence, but defence counsel did not require them. The relevance of this is that it provides context for the observation that Ms. Berry was attributing to Mr. Smith. It is not the case that the remarks about looking up skirts were being attributed to someone who had never had a bad word to say about Mr. Carroll. Rather, they were being attributed to someone who had much more serious things to say about Mr. Carroll and were being attributed to someone who had given extremely damning evidence at trial about what he had personally witnessed. This introduces a certain unreality to the suggestion that this was a case for the discharge of the jury, and for that reason, whilst taken alone this evidence given by Ms. Berry might be prejudicial, it was far less so that direct evidence given by the person whose words she allegedly recounted. The likely impact of the evidence must be weighed against, and seen in the light of, the totality of the evidence in order to assess whether it was sufficiently prejudicial for the trial court to discharge the jury. In our view, it was not.
12. Accordingly, the Court rejects this ground of appeal.
The Application for a Direction
13. At trial, there was an application for a direction which was refused. This unsuccessful application now forms the basis of a Ground of Appeal. The ground has been rolled up with the proposed new ground that the verdict was perverse. Counsel for the appellant, accepting that if he was able to establish that a verdict of guilty would be perverse, that the case should not have been left to the jury.
14. The contention that this was a case where there should have been a directed verdict of not guilty is based on the second limb of Galbraith. It is acknowledged that there was evidence that the offences occurred, but it is said that the evidence was tenuous and contradictory. It is said that the complainant’s evidence was inconsistent with that of Mr. Smith; he does not accept that he “went for” Mr. Carroll; that it was inconsistent with that of Mary Berry who denies being present in the aftermath of the incident and denies telling the complainant not to tell her mother what had happened, and also denies being in the complainant’s home at a later stage, speaking to the complainant, when her mother had left the room temporarily and then pretended to be reading a book with the complainant when her mother returned.
15. At trial, it was contended that the account given was utterly implausible. There were echoes of this on appeal. Indeed, at times, the submissions of counsel for the appellant took on something of the tone of a jury address. It is said that if anything of the sort occurred, that the complainant would have been in such a state of extreme distress that this would have been obvious to anyone having contact with her, in particular, to her mother, yet her mother was not called as a witness at trial. It is said that it is inconceivable that any group of adults or school authorities would have responded in the way the complainant alleges occurred. Had the caretaker witnessed anything untoward happening, the appellant contends that Mr. Smith would undoubtedly have reported the incident without delay to the school principal.
16. It is contended that it is incredible that any school secretary would, in 1997/1998, have reacted in the way the complainant said occurred. It is said that it is just inconceivable that any school Secretary or authority figure within a school, becoming aware of an incident of such gravity, would have told a child not to report it. Stress is laid on the fact that the alleged incidents are said to have occurred in 1997/1998, not in the distant past or in the dark ages. Counsel for the appellant focuses on the absence of the school cleaner and says that her absence rendered the trial unfair and unsatisfactory. It is, however, to be noted that there was no PO’C-type application i.e. no application to stop the trial on the basis that in the absence of the cleaner, there could not be a fair trial.
17. Undoubtedly, there were unusual features in the case. If Mr. Smith witnessed the untoward activity that he gave evidence that he did, it is surprising that there was no report to the school principal. On the other hand, if Mr. Smith did not interact with Mr. Carroll, it is surprising that he would have told a meeting attended by Father Donnelly and other authority figures from the school that he did. It is, of course, the case that Mr. Smith denies telling the meeting that he did intervene physically, but if he did not say that, it is strange that Father Donnelly would make the record he did and that the other attendees would, as seems to have been the case, been prepared to support him. However, in the Court’s view, these were quintessentially matters to be addressed by a jury. There was clear, indeed, stark evidence that the offences had occurred. In these circumstances, it was for a jury to consider that evidence and for a jury to consider whether the response to the incident described by the complainant was so different to what one would expect as to cause one to doubt whether the incident described had in fact occurred. The trial judge is not to take over, in effect, to usurp the functions of the jury.
18. This ground of appeal is rejected.
Ground (iii)
“The trial judge erred in law or in a mixed question of law and fact in failing to hold an enquiry on 22nd January 2016 following a complaint made to the Court by the applicant’s legal team that a juror, upon returning to Court during the course of the jury’s deliberation, interacted with the injured party and other people in her company present in Court, and in so failing to do, deprived the applicant of enquiry being made as to the suitability of the juror to continue as a member of the jury”
19. At the outset, it might be noted that despite the reference in this ground to the jury deliberations, the issue relates to a matter that was raised by counsel for the defence when the Court sat on Day 3 of the trial, the day on which the jury was going to hear closing speeches from both sides and the trial judge’s charge. When the Registrar called the case, defence counsel stood up and said:
“[J]udge, just before the jury comes in, there’s a matter which I think I have to bring to the attention of the Court. I understand that – I’ve been informed by two witnesses who were or – not two witnesses, two people, who were supporting Mr. Carroll, that when the jury was filing out yesterday evening, one of the jurors, who has not been immediately identified to me because I have to – I’d have to be informed as to which – where precisely the juror was sitting and the particular juror involved apparently smiled and winked in the direction of the injured party and two guards were seated behind. Now, whether the wink or the smile was to the guards or to the injured party I don’t know, but it’s a matter of some concern that there should have been some contact. Now, I’ve told my friend about this, since it’s a matter that I have to raise.
Judge: These are the two people here?
Defence Counsel: Those two people here and they’re prepared to be interrogated in relation to that, under oath if necessary, but I’ve told Mr. Dillon [prosecution counsel] yes, I think that’s the appropriate course to take, subject to your own view on the matter, of course, that those who had instructed that they saw this conduct on the part of a juror should, in fact, give evidence on oath to establish that fact. I have taken instructions from Sergeant Quinn who has been in Court all day long, who has watched, who has seen the jury come and go, he wasn’t watching, but he saw them come and go and he certainly can say that there was one juror who looked with a neutral to possibly stern expression at the injured party and he can identify that by virtue of the glasses that this gentleman is wearing, this juror is wearing, so I think if we could just have a quick hearing of evidence from these two people and from Sergeant Quinn, and then maybe you might call in the jury and I’m afraid you handle it as best you can, whether it’s necessary to discharge a juror or not I think depends on what you hear. I suppose it will depend upon what you hear in terms of evidence.
Judge: Alright, Mr. Dillon, thank you.
Defence Counsel: Might I just suggest this, Judge, that when the jurors come back in the normal way, they would have been polled or their names taken and they answer their names, at that stage, I could from my –
Judge: You know, Mr. Smith, the two people that were in Court are two people that were allowed into Court.
Mr. Smith: That’s correct.
Judge: Who wouldn’t normally be in Court?
Mr. Smith: That’s correct.
Judge: And bearing all of that in mind –
Mr. Smith: Yes?
Judge: Now, do I really go into all of this or am I simply going to carry on with the case as we had intended?
Mr. Smith: Well, I’ve raised it Judge, and there it is, so I’ve been instructed to raise it.
Judge: Yes, and you’ve heard what I said.
Mr. Smith: And I’ve heard what you said, but –
Judge: And the two people in Court have heard what I said.
Mr. Smith: They have, and –
Judge: Alright, and it was by agreement and by using my discretion that I had allowed all of that.
Mr. Smith: Oh I appreciate that, Judge, but that doesn’t remove the fact –
Judge: Alright, well then in those circumstances, we’re going to continue on.
Mr. Smith: But it doesn’t remove the fact, Judge, and I just want to put it on the record that despite the fact that they were allowed in, they were here and they witnessed what they witnessed and there does raise some –
Judge: They’re not parties to the case.
Mr. Smith: Oh, of course, but it does raise some concern, Judge, that there might be some –
Judge: And as you’ve said yourself, fairly – in fairness to you, that there were Gardaà sitting behind them and it’s uncertain as to what was viewed so we’ll carry on with the case.
Mr. Smith: Fair enough.”
There was postscript to this at the sentence hearing. On that occasion, counsel said:
“[J]udge, I want to draw your attention is, you recall during the trial, I raised an issue about one of the jurors who were winking and laughing at the GardaÃ, on one occasion leaving the jury box to go into the jury room. It’s a somewhat troubling feature of this case, although I accept that that juror is entitled to be, that juror is here today and has been in consultation with the Gardaà throughout the morning. And I just want to put that on the record because it is a matter which will form one of the issues for an appeal.”
It will be noted that this intervention diverged very appreciably from what had been said on Day 3 of the trial.
20. In the Court’s view, the judge was entitled to deal with the matter in the way that she did. We do not believe that issue raised crossed the threshold mandating a further enquiry. On the basis of what counsel was indicating to the judge, the two friends of the accused, a husband and wife, who had been permitted to attend Court by the judge, believed they had witnessed a smile and/or a wink, though whether that was in the direction of the complainant or Gardaà was not clear. The Sergeant in Court believed that he observed a particular identifiable juror looking at the complainant with a neutral to possibly stern expression.
21. Neither a stern expression nor a wink or smile could have amounted to communication with a juror, and even taking the description of counsel for the defendant at its height, the judge was entitled to take the view that any engagement was minimal and not did not amount to the sort of communication that would involve an interference with the trial process.
22. The humanity that a juror brings to the process is an essential element of the right to trial by a jury of one’s peers. The members of a jury bring their humanity and human responses to the process, and this is the essence of their engagement.
23. If someone decided to monitor the facial expressions of jurors throughout a trial, it is likely that they would observe many different expressions: sympathy; amusement; horror; disgust and anger, not to mention blank expressions and boredom are some that come to mind. The fact that a particular juror reacted in a particular way would not, in general, give rise to any response from the observer.
24. In this case, the height of what was being suggested did not involve any real contact or communication. One senses from the transcript that the judge’s reaction may have been tinged with impatience or perhaps irritation; one would speculate, perhaps linked to the fact that the judge had exercised her discretion to admit friends of the accused to Court. The Court does not believe that the issue raised is of such substance as to give rise to concern that the trial was unsatisfactory. The Court is not prepared to uphold this ground of appeal.
25. In summary, the Court rejects all grounds of appeal that have been argued. We have not been persuaded that the trial was unfair or unsatisfactory or the verdict unsafe.
26. We, therefore, dismiss the appeal.
Bord na gCon v. Murphy
[1970] IR 301
O’DALAIGH C.J. :
16 June
This Case was stated by His Honour Judge Durcan pursuant to s. 16 of the Courts of Justice Act, 1947, and it is concerned with the question of the admissibility as evidence for the prosecution of certain correspondence from the defendant’s solicitor to Bord na gCon. The issue arose at the hearing before the Circuit Court judge of an appeal against the conviction of the defendant in the District Court on foot of three summonses which were brought by the Bord as complainant under the Greyhound Industry Act, 1958, and the regulations made thereunder. The Act controls betting at greyhound racing courses by a system of course-betting permits: see section 28. The holder of a course-betting permit, and the defendant bookmaker is the holder of such a permit, may have his permit suspended or revoked provided the Bord first gives him notice of their intention and considers his representations: see section 29. The Act also provides by s. 32 for payment by bookmakers of levies on course bets. Finally, the Act creates a number of criminal offences, and authorises the Bord to prosecute for contraventions of the Act and the regulations made thereunder. The criminal proceedings under the Act arose out of a greyhound race meeting held at the Galway race track at College Road, Galway, on the 10th September 1968, which the defendant attended as a licensed bookmaker and the holder of a course-betting permit. On that day one of the runners in the third race was a dog named “Lakefield Lass.”
On the 16th September, 1968, the chief officer of the Bord wrote the defendant a four-paragraph letter. In the first paragraph the defendant was informed that it had been reported by authorised officers of the Bord, who were present at the Galway greyhound race track on the 10th September, 1968, that they had witnessed a punter placing with him a bet of £20, at odds of two to one, on the greyhound “Lakefield Lass” in the third race at that meeting. The second paragraph said the levy-paid sheet and the race card submitted to the authorised officers after the last race at that meeting disclosed that, while no bet of that amount appeared recorded to the greyhound in question on the levy-paid sheet, the figures “40/20″ were shown written across”Lakefield Lass” in the race card. The third paragraph said that the officers also reported that, when asked to explain the figures, the defendant took possession of the card and stated that he would furnish an explanation in the office at the track, but that the card subsequently tendered by the defendant at the office was not the card originally examined by the Bord’s officers and, despite a number of requests, he had failed to furnish the required race card. In the final paragraph of the letter the writer informed the defendant that, as a full report would be placed before the Bord at its next meeting, he was to request the defendant to forward to the Bord’s offices the race card submitted on the first occasion to the Bord’s officers, together with any observations which he might wish to furnish in the matter.
On the 3rd October the Bord received a letter from Mr. D. J. O’Neill, solicitor, of Tralee stating that the defendant had forwarded to him the Bord’s letter of the 16th September and that the defendant was sending him instructions to deal with the matter and that he would therefore write to the Bord on the matter as soon as he could. On the 11th October Mr. O’Neill wrote to the Bord that his client had telephoned that day and had given him instructions as well as he could over the telephone. He enclosed with his letter a document headed “Statement of Thomas Murphy”and subscribed “Thomas Murphy (per pro Donal J. O’Neill)”setting out the facts as his client had related them to him, and he added that these facts had been conveyed by his client to the Bord’s employees who were investigating the matter. Mr. O’Neill concluded by asking to be advised as to any action which the Bord proposed to take, so that his client could be represented. In the enclosed statement the defendant explained that the bet in question was made by an employee of a film unit which was making a film on racing at the track; he shouted out the bet for “effects” purposes. Again for film purposes the bet was recorded in the race card but, as the bet was not an actual or genuine bet, it was not collected as it had not been made. The defendant said the suggestion that the original race card was not returned to the officers of the Bord was ridiculous.
Mr. O’Neill followed up his letter of the 11th October by a letter of the 5th November in the course of which he said that he had misinterpreted a particular aspect of the instructions his client had given him over the telephone, and that he hastened to correct it: as the bet was not in fact a money transaction it was not recorded on the race card or levy-sheet or elsewhere.
On the 17th December the Bord, as complainants, issued three summonses against the defendant charging (1) failure to record on a betting sheet a course bet of £20; (2) failure to pay the Bord the prescribed levy on that course bet; (3) failure to produce forthwith to an authorised officer of the Bord a document then in his possession and used for the purpose of his business as a bookmaker and to permit the authorised officer to inspect it and take copies of it and make extracts from it.
In the District Court, where a conviction was recorded on foot of each of the complaints, Mr. O’Neill’s correspondence with the Bord (including the defendant’s “statement”) was admitted in evidence. On the hearing of the defendant’s appeal in the Circuit Court, an officer for the Bord gave evidence that he had received from Mr. O’Neill the letters dated the 3rd and the 11th October, 1968, and the 5th November, 1968, and the “Statement of Thomas Murphy”; and it was again sought to put the letters and “statement” in evidence for the complainants. Counsel for the defendant objected to the reception of the documents on the following five grounds:”(a) that the same were hearsay evidence; (b) that there was no evidence to show that the said letters or the said document had been written by or on the instructions or on the authority of the defendant; (c) that it was apparent from a perusal of the said letters and document that they had been prepared under a mistake or misapprehension by the said Donal J. O’Neill; (d) that the said letters and document contained statements made by a person who was not being called as a witness by the complainants and the defendant had no opportunity of cross-examining the person who made them; (e) legal professional privilege.” Counsel for the complainants contended that the said letters and statement were admissible as statements made by the defendant, by his solicitor, and containing admissions made on behalf of the defendant; and he contended that the rule as to the admissibility of the statements made by an agent and solicitor was the same in a criminal prosecution as in a civil case.
On these submissions the Circuit Court judge stated the following two questions of law for the opinion of this Court:
“(a) Are the said letters from the said Donal J. O’Neill to the said complainants, dated respectively the 3rd October, 1968; 11th October, 1968, and the 5th November, 1968, or any one or more of them admissible as evidence for the complainants upon the hearing of these appeals by the defendant and, if so, which of them are or is?
(b) Is the said typed document dated the 11th October, 1968, referred to in paragraph 7 hereof admissible as evidence for the complainants upon the hearing of the said appeals by the defendant?”
As I understand it, the complainants sought in the Circuit Court to put the correspondence and statement in evidence as constituting an admission by the defendant which had been forwarded to them by his agent, Mr. O’Neill. I should, at the outset, observe that the only admissions which are admissible in evidence as exceptions to the rule rejecting hearsay are such admissions as are declarations against interest or, as these are sometimes called, disserving statements. In my opinion the”statement” in question here is not a disserving but a self-serving statement. The complainants appear to have thought that the solicitor’s error, in stating in the first instance that the bet was recorded on the race card, could be ascribed to the defendant. In my opinion this course was not open to them. The solicitor acknowledged that the error in question was entirely his own and that it had happened because he had misunderstood the instructions that his client gave him on the telephone. In other words, he says that the defendant never authorised him to say that the bet was recorded. Quite the contrary: his instructions, if he had understood them aright the first time, were that no bet was recorded on the race card. Therefore, the admission is not a disserving but a self-serving admission and, as such, it is not admissible.
This matter was not adverted to in the course of the argument. Therefore, I will assume for the purpose of the Case Stated that the defendant’s admission is to be considered as a disserving admission, and I shall examine the matter upon that basis. There is first the oral statement which the defendant made over the telephone to his solicitor. The prosecution clearly could only prove the terms of that statement by calling Mr. O’Neill as a witness. This they did not attempt to do. We are not concerned, therefore, with the defendant’s oral statement as such but with the terms of the admission or communication which he instructed his solicitor to make to the Bord on his behalf, that is to say, with the written statement as corrected in the correspondence. Where is the proof that Mr. O’Neill was authorised by his client to make this statement on his behalf? Mr. McMahon, for the complainants, says that this fact is established by the internal evidence of the correspondence and that he is entitled to prove it in this way. I would agree that the correspondence does establish that the communication (as duly corrected) was made in pursuance of the instructions of the client or, put in other words, that there is internal evidence that Mr. O’Neill was authorised by his client to write these letters and, more specifically, was authorised to forward to the Bord the defendant’s “statement” or account of what occurred at the race meeting. But the defendant’s admission is admissible as evidence as an exception to the hearsay rule only if it is established to have been made on the authority of the defendant, and the evidence of the existence of that authority must be found outside the correspondence and the statement because those documents are not receivable as evidence until the fact of the solicitor’s authority is first proved. The solicitor’s assertion in the correspondence that he is an authorised agent to make these admissions on his client’s behalf is not proof that he is such agent: it is a hearsay assertion, and it is not receivable as an admission. If he is to prove the fact of agency he must do so by sworn evidence, which is the only way that evidence which is not receivable as an admission can be given in a criminal trial.
It need hardly be said that a solicitor who, on his client’s instructions, had purported to correspond with the Bord to put his client’s case before them could not, if called as a witness to prove his authority to make admissions on his client’s behalf, be heard to claim privilege. Privilege for what? Privilege attaches to confidential communications between solicitor and client. Here by hypothesis the client’s statement was made to the solicitor not in confidence but specifically and expressly for disclosure to the Bord. Each of the questions in the Case Stated should, in my opinion, be answered in the negative.
WALSH J.:
This is a Case which is stated by Judge Durcan, a judge of the Circuit Court assigned to the Western Circuit, and it is stated by virtue of the provisions of s. 16 of the Courts of Justice Act, 1947. The learned judge was requested by counsel for the defendant to state the Case for the determination of this Court on the questions which I shall refer to later. The proceeding in which the application was made was the hearing in the Circuit Court of an appeal by the defendant against his conviction in the District Court of three offences alleged to have been committed contrary to the provisions of the Greyhound Industry Act, 1958. The three offences alleged, stated briefly, were that he failed to pay the Board the prescribed levy on a course bet accepted by him, that he failed to record a bet which he had taken on a betting sheet, and that he had failed to produce on demand to an authorised officer of the Board a document then in his possession and used for the purpose of his business as a bookmaker. He was convicted on all three charges.
In the course of the hearing in the Circuit Court, it was proved that the chief officer to the Board had posted to the defendant a letter informing him of the allegations made against him, and requesting him to forward a certain document and inviting him to make any observations which he might choose to furnish on the matter. It was also proved in the Circuit Court by an official of the Board that he had received from Mr. Donal J. O’Neill, a solicitor, certain letters relating to the contents of the letter sent by the Board, and that the official had also received a document entitled “Statement of Thomas Murphy” purporting to deal with the events which led to the making of the allegations against the defendant, and that at the foot of the document there was subscribed in handwriting the words “Thomas Murphy (per pro Donal J. O’Neill).” During the course of the hearing in the Circuit Court, counsel for the complainants sought to put these letters and the other document in evidence and they were objected to on the grounds of being inadmissible because they were merely hearsay evidence or, in so far as it was alleged that they contained any admission or confessions attributable to the defendant, that there was no evidence that they had been made on the instructions or authority of the defendant or that the document itself had been written on his instructions or his authority. For the complainants it was submitted that the letters and the statement were admissible in evidence as admissions or confessions of the defendant which had been made by his agent on his behalf and with his authority.
The writer of the letter, Mr. Donal J. O’Neill, was not called as a witness by the complainants to prove that he had been authorised to write it. While it may well be said that the contents of these documents in themselves indicate that they were probably written by the solicitor in consequence of an interview with his client, that is not evidence that they were written in pursuance of his instructions. But even the former contention is not necessarily correct unless it were shown by affirmative evidence that no persons other than the writer of the letter and the accused were aware of the contents of the Board’s letter, and unless evidence was given which was accepted that the writer of the Board’s letter did not disclose the contents to any person. In such a case the inference might then be inescapable that the only way in which the solicitor could have known of the contents was by reason of a communication from the defendant. But even if this were the case the question of the solicitor’s authority is a vital one.
In my view, it must be established by the complainants that the solicitor was authorised by the defendant to make the statement or statements which are contained in the documents or, alternatively, the complainants must prove that, after these documents had been made by the solicitor or received by the complainants, the defendant adopted or approved of their contents. The letters and statements themselves, in the absence of testimony from the person who wrote them (namely, the solicitor), are simply pieces of hearsay evidence and must remain so until the fact of the solicitor’s authority to make the statements therein contained has been established, or until their subsequent adoption by the defendant has been established.
In my view, it was open to the complainants to call the solicitor for the defendant, who wrote these letters or documents, as a witness on the question of whether or not he had authority to write what was in these documents, and on the question of whether what he wrote was what he had been informed by the defendant. In the Case Stated and in the course of the submissions in this Court, some references have been made to legal professional privilege in this matter. The protection which extends to communications between a solicitor and client depends upon the confidential character of the communication and, if a client has instructed a solicitor to write a particular letter to another party, namely, the complainants in this case, it is quite clear that the content of that letter or the fact that the writing of it was directed by the client is not, and was not intended to be, a confidential communication. Therefore, it would not be a breach of privilege to require the solicitor to answer the question of whether or not he had been instructed to write the documents in question and of whether or not he had been instructed to make the statements therein containedwhether they be admissions, confessions or otherwise.
In regard to the more general question of a solicitor’s implied authority to make admissions in the course of litigation after he has been engaged for the conduct of the litigation and is the solicitor on record in the proceedings for the client, I do not wish to discuss that aspect as I think it is not of relevance in the present case. The documents and the letters which are the subject of this Case originated for the purpose, and in the course, of extra-judicial proceedings in the sense that the procedure or proceedings in question did not constitute litigation in the Courts established under the Constitution; the question here turns upon the scope of the authority of an agent, and the fact of the agency; and the scope of the authority of the particular agency must be established before the agent’s declarations can be received as admissions.
Therefore, in my view, the questions put by the learned Circuit Court judge should each be answered in the negative. It is to be understood from what I have said above that these answers refer to the question of the admissibilily of these documents as evidence of the accuracy or truth of their contents. If the issue was simply the question of whether or not such documents had been received, then the documents would be admissible as evidence upon that issue but only upon that issue.
BUDD J. :
The letters and documents sought to be put in evidence in this case were forwarded to the complainants by the defendant’s solicitor and were sought to be put in evidence, when produced during the course of his evidence, by Noel Dromgoole who is an official of the complainant Bord. That witness was not in a position to prove either that the letters were written on the instructions of the defendant or that the solicitor had authority to write and forward the statement containing the alleged admission on behalf of the defendant, or to make the statement on behalf of the defendant. There was in addition no proof tendered that the defendant had adopted the statement as his own. In my view, before letters which are alleged to have been written on behalf of a defendant, prior to proceedings, can be received in evidence against him, it must be proved that the person writing them had the authority of the accused person to write them and that they were written on his behalf. The defendant’s solicitor could have been called to prove his instructions to write the letters but this was not done. Likewise, before a statement containing an alleged admission of the defendant’s and intended to be used as part of the proof of his offence can be tendered or admitted in evidence against him, it must be proved that he made the statement or adopted it as his own or gave instructions that it should be made on his behalf, and these matters must be proved in the ordinary way by sworn evidence. The defendant’s solicitor was not called in court to prove either that the statement had been made by the defendant or adopted by him as his own, or to prove that the solicitor was authorised to make the statement by the defendant.
It has been submitted on behalf of the complainants that the contents of the letters show that the defendant’s solicitor had the authority of the defendant to write the relevant letters and to make and forward the statement as the defendant’s statement, or to make the statement on behalf of the defendant. To my mind this is an attempt to put the cart before the horse. Before the letters or the statement can be received in evidence, it must be shown that they are admissible in proof against the defendant as being written or made with his authority; and until the admissibility of the documents is shown they cannot be looked at to see what they contain and it follows that the contents of the documents cannot be used to prove their admissibility.
With regard to the question of legal professional privilege as to communications between solicitor and client, I entirely agree with what has been said on the point by Mr. Justice Walsh. The documents are not of a confidential character. Having regard to the views that I have expressed, I would answer both questions in the Case Stated in the negative.
FITZGERALD J. :
I agree that both questions should be answered in the negative.
MCLOUGHLIN J. :
I agree that the questions asked in the Case Stated should be answered in the negative. The conclusion is based on elementary principles of the law of evidence. A person accused of a criminal offence can only be convicted on sworn evidence; such evidence may be of the fact which constitutes the offence or of other facts from which the commission of the offence may properly be inferred.
If a person who is alleged to have committed an offence makes a statement either orally or in the form of a document relating to facts concerning the alleged offence, then evidence may be given of the making of such statement. It must, however, be sworn evidence. If the statement was made orally, a witness who heard the statement being made can swear as to its details; if the statement was in the form of a document, then the document is not admissible in evidence unless the witness tendering it can swear that it was made by the accused person.
The accused may have made the statement by his own hand or by instructions to another, or by adopting it, or in other circumstances so as to indicate that he was making the documenthis statement. Again the witness tendering the document must be able to swear, of his own knowledge, as to the circumstances which constitute evidence of such an indication. It is clear that the witness Noel Dromgoole, an official of the complainants who tendered the letters and the document of the 11th October, 1968, cannot give such evidence of his own knowledge; and the documentary evidence is not admissible as proof of statements made by the accused.
The People (Attorney General) v. Casey
Teevan J. [1961] IR 264
Court of Criminal Appeal
TEEVAN J. :
31 July
The applicant, Dominic Casey, was indicted at the Central Criminal Court, on the 13th December, 1960, on eight counts. On count no. 1 he was charged with attempting to render David Handyside, a young boy, insensible, unconscious, etc., for purposes of indecency contrary to s. 21 of the Offences against the Person Act, 1861. Count no. 2 was for indecent assault of the same boy (s. 62); count no. 3 charged the offence of assault occasioning bodily harm to the same boy (s. 47); count no. 4 was for common assault on the same victim; counts nos. 5, 6, 7, and 8 were for the like several offences committed on another young boy, Nicholas Healy.
The accused pleaded not guilty to all offences and conducted his own defence. He was convicted on all counts and sentenced to five years penal servitude on counts nos. 1, 2, 5, and 6 and three years on counts nos. 3, 4, 7, and 8, all sentences to run concurrently.
The prisoner’s application for a certificate for leave to appeal was refused by the trial Judge and he now applies to this Court for leave to appeal.
That the two young boys, the victims of the several counts in each series, were seriously assaulted and subjected to indecency is beyond dispute and was not challenged. The sole issue at the trial was the identity of the prisoner as their assailant.
The main facts were that David Handyside, a boy then of some six years, left his parents’ house after tea at about 6.45 p.m. on Sunday, the 20th September, 1959, to play with the other child, Nicholas Healy. His mother next saw him in the house of Mr. Richard Nohl, a considerable distance away, at about 8.50 p.m. He was then unconscious, was injured in the hands, on the left temple and legs. He was without his trousers. With him in the same house was his young companion, Nicholas (or as he is called in his home, “Noelly”) Healy. He too was injured. He, also aged about six years, had left his home to play with David Handyside. When his mother next saw him, his trousers were “all open” and his neck was “all tore.” The injuries sustained by the two boys were described at the trial in more detail by Doctor William Ryan. It is unnecessary to describe them here beyond saying that they disclosed evidence of attempts at strangulation. The doctor described David Handyside as an intelligent boy for his years.
Richard Nohl was viewing a television programme in his house, No. 19 Avondale. Crescent, Killiney, when at about 8.30 p.m. on the same Sunday he heard a loud commotion in a field at the back of his housecries for help and screaming. The field is part of the grounds of a convent. Mr. Nohl went there immediately, found the two boys lying face downwards and in obvious distress. It was dark. He had with him a torch. He also saw the figure of a man in flight across the field, running in the direction of the convent. He remained with the boys (one of whom was without his trousers) until his wife arrived and took them in charge. Mr. Nohl then started in pursuit of the man. For that purpose he returned to his house, took his motor car and drove to the convent gate. There he saw a man leaving the direction of the convent gate entrance. The man returned to the gate at the approach of the car, climbed over it, and was in the act of descending on the inside when Mr. Nohl essayed to ram the gate with his motor car, thinking it would fly open on impact. It didn’t: it was secured by chain and padlock. The man had meanwhile dropped to the ground on the other side, where squatting, face on to the motor car, Mr. Nohl had a view of his face in the headlights. The man escaped. Later on, in an identification parade, Mr. Nohl identified the prisoner as the man he had endeavoured to capture at the convent grounds. On the occasion of the identification parade Mr. Nohl, while picking out the prisoner from the other men on parade as the man he had endeavoured to capture, said he was not 100 per cent certain, but in giving evidence at the trial said he was certain in his identification. He explained that although he was certain in his identification at the parade he had hesitated to say so at the time because he was afraid of some action being taken against him.
At the trial the other evidence of identification was that of John Mooney, a boy of some twelve years, who said in evidence that he had seen the two boys, David Handyside and Nicholas Healy, walking across a field with a man between them. This man he identified as the prisoner. He also had picked out the prisoner at an identification parade. The witness had gone to the field at about 7.30 p.m., hoping to meet companions. He saw a man standing inside the boundary wall. Later, as he was returning to the road to leave the field, he saw the same man with the two boys, Nicholas Healy and David Handyside. The three were walking towards a cornfield. (This was in the direction of the convent grounds, as was otherwise established). The man was in the middle and was holding a hand of either boy. That was at about 7.45 p.m. The witness gave evidence of his identifying the prisoner in a parade. He was asked:”What were you shown” (at the Barracks)?
Answer:”Men in a line and one of the detectives asked me to pick out the man I saw.”
Q.:”And what did you do?”
Answer:”I looked at the man and I went along and picked him out.” Asked whether he was dressed the same or different the witness said:”He hadn’t got the tweed coat on anyway.” The witness said that on recognising the man he said:”This is the man I saw in the field.”He again identified the prisoner in the dock as the man.
The prisoner’s movements up to about a quarter or twenty past seven were indisputably accounted for. At about that time he parted company with a Miss Anne Snailes when they alighted from a bus near the entrance to the field to which the children had gone to play. Miss Snailes walked on home. She saw the prisoner cross over the road and go into the fieldthat is the same field to which the children resorted and in which John Mooney saw a man with the two boys. Miss Snailes further said she saw the prisoner standing just inside the wall. He was wearing a bright oatmeal-coloured overcoat. She also saw “a lot of children playing there.” She saw the two boys, David Handyside and Nicholas Healy (whom she knew). Prior to this the prisoner had had a number of drinks in various places in Dun Laoire.
If Miss Snailes’ evidence was accepted by the jury it placed the prisoner at and within the entrance to the field where the little boys went to play. He was there at about 7.15 or 7.20 p.m. His identification there by Miss Snailes, with whom he was acquainted, was not challenged by the accused in his cross-examination of her. In his evidence, however, he did suggest that she might have been mistaken in her observation of him as being inside the wall in the field. There appeared to have been some vague arrangement for Miss Snailes and the prisoner meeting again after she had gone to her house. She returned ten minutes later to the place where she had parted with the prisoner but he was not there. She did not see him again that night.
The prosecution established that at about 9.25 p.m. the prisoner boarded a bus near the same place and travelled on it to Dun Laoire. This the prisoner admitted. Where precisely he boarded, or may have boarded, this bus was seriously in dispute and while this is not of consequence to his opportunity for committing the crime, or to his identification, importance is now attached to it by his counsel because, it is submitted, it was made an issue of importance by the trial Judge concerning the credibility of the prisoner’s accounts of his movements after parting with Miss Snailes. In any event, thenceforward the movements of the prisoner are not of consequence to the main issue.
The prisoner’s own account of his movements in the critical interval between 7.15 and 9.25 p.m. or thereabouts was that having arranged to wait for Miss Snailes at O’Toole’s shop in Sallynoggin he did not do so. He walked up the main Sallynoggin Road and went up to the church and back to his own home. He did not meet anyone he knew but there were many people about. He did not speak to any boys. When he got home there was no one there except his brother-in-law’s children and a few of the neighbouring children. He sat down for a while, then had a wash and went out. He had spent about half an hour in the house. He then walked to Dunmore Cross to see if Miss Snailes would be there. He did not see her. He then got the bus”at the top of the hill” and travelled on it to the Adelphi Cinema in Dun Laoire.
It will be observed that the evidence falls under three heads, viz., 1, that which leads up to the point where the accused is identified as being the man who picked up the two boys in the field near the main road; 2, the evidence so far as it went of one of the boys as to what occurred after they went to play in the field; 3, the movements of the accused after the alleged crime was committed. That under the first and third heads is circumstantial evidence. Only the evidence of the boy, David Handyside, is direct testimony. Because it was the evidence of a child of tender years a warning to the jury that it required corroboration by some other material evidence implicating the accused was necessary under the first proviso of s. 30 of the Children’s Act, 1908.
The grounds of the application for leave to appeal (as now stated and added to by leave) are:1, that the learned trial Judge failed to direct the jury adequately, or at all, on the danger of accepting evidence of visual identification;
2, That the learned trial Judge failed to direct the jury adequately, or at all (a) on the danger of accepting the evidence of David Handyside who was a child who gave unsworn evidence; (b) on the danger of accepting the evidence of John Mooney who was a child of tender years; (c) on the danger of accepting the statement of Nicholas Healy at an identification parade having regard to the fact that he was a child of tender years and incapable of giving evidence or being made subject to cross-examination.
3, That the learned trial Judge failed to allow the accused to give his evidence in his own way but cross-examined him in the course of his direct evidence.
4, That prosecuting counsel misled the jury and the learned trial Judge misdirected the jury as to the effect of the evidence of the bus conductor as to the place where accused boarded the bus on which he travelled to Dun Laoire.
5, That the learned trial Judge put forward the witness, John Mooney, as an accurate and truthful witness and failed to direct the jury as to the danger of accepting a child’s evidence and failed to direct the jury’s attention to the child’s failure to observe the accused’s clothing at the identification parade attended by him.
6, That the evidence in relation to the identification parade held at the Bridewell was inadmissible.
7, That the complaints and statements made by the children were inadmissible.
8, That the trial was unsatisfactory.
The first and second grounds may be taken together. The prosecution case did not rest exclusively on what has been termed “visual identification” and much of Mr. Bell’s argument under these headings is accordingly misplaced. It would be apposite in a case where the evidence connecting the accused with the crime charged was confined to the visual identification of the accused by a person to whom he was a stranger. Here the evidence of a witness to whom the prisoner was well known places him in the field where the boys had gone to play (and who also were seen by the witness) at a time which would have permitted the prisoner to lure the boys to the convent grounds, commit the crime, return and catch the 9.25 p.m. bus. It was however for the jury to say whether they accepted the accused’s own account of his movements during that interval. It is contended that undue stress was laid by the learned trial Judge on further evidence of identification the subject of these grounds, in a way calculated to lead the jury to accept it as positive and unimpeachable.
David Handyside, one of the victims, having been found by the Judge unfit to be sworn by reason of his tender years, gave some unsworn evidence. He told of going to the field and playing there with the other boy, Nicholas Healy. He was unable to tell or remember the incidents thereafter, or what happened to him. Thus far, his evidence being of no importance, neglect of the trial Judge to warn the jury as to the nature and infirmity of such unsworn evidence as required by statute would be of no consequence and could not vitiate the trial. But to one question”Who talked to you” (i.e., at the field)the boy answered:”Young Casey.” This might well be, and in all probability was, taken to mean the accused, Dominic Casey, although the latter is a man of some 26 years. The evidence, such as it was, of David Handyside was not referred to by the learned trial Judge in his charge. Mr. Bell submits that it is rendered important by certain hearsay evidence given by the boy’s motherthe admission of which evidence as such he does not attack. She said in her evidence that the day following the crime she questioned David about the incident and that he had told her a man brought him to the field and told him to keep walking and he went into the field. There were cows in it. He (the man) said:”There are cows in this field, we cannot keep in this field we will keep moving,” and when they got to the field where the tree was, the man said:”Take off your trousers,”and, Mrs. Handyside continued, the child got nervous and he didn’t take off his trousers. He told him he was going to strangle him. Although Mr. Bell did not raise the point, this Court is of opinion that the mother’s evidence of the description which her son, David, gave her of his experience in the field was inadmissible. Although the name of the accused was not mentioned it contained the statement that a man had taken him into the field and described what he had said to him, including the statement that he told him he was going to strangle him. When there is linked with this statement his evidence that young Casey, whom the jury would clearly understand to be the accused, talked to him in the field, it provided to the lay mind (unaccompanied as it was by any direction as to its legal nature and quality) directand the only directevidence of the commission of the crime and that the accused committed it. It was quite probable that the jury would accept this evidence of itself to be sufficient to justify a verdict of guilty. The boy had, however, failed to identify the accused at the identification parade, nor did he identify the accused at the trial. Even if the mother’s story of what her son told her was admissible it seems clear that the jury should have been warned of the danger of accepting without corroboration the boy’s evidence because, first of all, it was unsworn and, secondly, because of his failure to identify the accused either at the identification parade or in Court.
As to the evidence of John Mooney, Mr. Bell did not press his objection.’ John Mooney was found to be a competent witness, gave evidence on oath, and the objection that his age (twelve years) was a circumstance calling for a warning to the jury to exercise special care in accepting his evidence is groundless. Objection to the Judge’s treatment of this witness was taken on another ground which will be dealt with later.
In this group of objections the most seriously pressed relate to the manner in which evidence was given of identification of the accused at an identification parade by the boy, Nicholas Healy. Nicholas Healy was not tendered as a witness at the trial. No reason was given for this. Evidence was given by Detective Sergeant Maurice Kelly of arranging a parade of men at the Bridewell. No exception has been taken to the array which, indeed, was arranged to the requirements of the accused’s solicitor. The boy, David Handyside, was brought in. He failed to identify any of the men. Then Nicholas Healy was brought in. The detective sergeant stated in his evidence that the boy looked at the parade and he instantly pointed to Casey (the prisoner). He was asked to go and put his hand on him and he went over and put his hand on Casey, and said:”He is the man I saw in the field.” He (the boy Healy) was asked where did he see him, and replied:”In the field.” Casey made no comment. He remained silent.
The learned trial Judge charged the jury on this evidence in the following words:”The Handyside child was brought in and he failed to recognise anybody. The next was young Healy who came in and I think without long delay picked out the accused as the man he saw in the field. That is positive evidence.” What it was positive evidence of, the learned Judge did not explain and the jury would most likely take it as positive evidence of identification by the boy, Healy, of the accused as the man who accosted and assaulted the two boys. This is made the subject of the two-fold objection, firstly, that the identifying person did not give evidence; secondly, that, while admissible evidence of the fact of identification, it is not evidence that the identifying person believes the person identified to have been the criminal. Reliance was placed on R. v. Christie (1).
Christie’s Case (1) differs from the present in that there the boy victim gave (unsworn) evidence of the facts of the crime, but resembles the present in that the boy victim did not give evidence of the fact of previous identification. A difficulty arises in applying the case where the evidence of prior identification stands alone. In Christie’s Case (1)the hearsay witness gave evidence not alone of the identification by the boy but also of the facts of the crime as stated by the boy in the accused’s presence at the time of identification. One thing is clear, that such evidence (i.e., evidence by a person of another’s identification) is admissible, but subject to two vital considerations. Firstly, that as primary evidence it is no more than evidence that on a prior occasion the person confronted was identified by the other. As against the accused person it is not evidence of the fact that he was the guilty party. Almost invariably such evidence is preceded, or followed, at the trial by the sworn testimony of the identifying person as to the fact of the prior identification. In such cases it is clearly admissible (and this is conceded by Mr. Bell) for the reasons and purpose stated by Viscount Haldane L.C. in Christie’s Case (2). But Mr. Bell contends that when the person making a prior identification of the accused as the guilty party is not called as a witness and so gives no evidence of his prior identification, the evidence of bystanders as to the fact of such prior identification is inadmissible, and he relies on Christie’s Case (1) in support of his contention. Christie’s Case (1) was mainly concerned with the question whether a statement made in the hearing of an accused person may be given as evidence even though he does not admit the truth of any part of it. The view taken was that such a statement is admissible. The Judges went on to say, however, that a practice had been followed by judges presiding at criminal trials if in their opinion the evidential value of such statement was slight and its prejudicial effect upon the accused might be very great of suggesting to the prosecution that it be not put in evidence. That this rule of prudence and discretion had become so integral a part of the criminal law as to have acquired the full force of law was the view expressed by three of the Law Lords in their speeches. Although it is true that at the trial of Christie evidence of the statement of the boy in the hearing of the accused was not allowed until the boy had given evidence and identified the accused in Court, the proposition for which Mr. Bell contends was not laid down. It is true that Lord Moulton, at p. 558, said:”Identification is an act of the mind, and the primary evidence of what was passing in the mind of a man is his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be given of a man’s words and actions, in order to show by this extrinsic evidence that he identified the prisoner, if he was capable of being called as a witness and was not called to prove by direct evidence that he had thus identified him. Such a mode of proving identification would, in my opinion, be to use secondary evidence where primary evidence was obtainable, and this is contrary to the spirit of the English rules of evidence.”
This expression of opinion was, however, obiter, as the boy in the case had given evidence and identified the accused in Court and the evidence of the act of identification was not objected to. In a case such as this, where the boy is not called and there is nothing to show that he was incapable of giving evidence, the Court is of opinion that it was extremely dangerous to admit the evidence. This Court is, furthermore, of opinion that the fact that the boy did not give evidence, and in particular did not identify the accused in Court, seriously lessened the value of the evidence of what he did and said at the identification parade. This evidence may, however, have been very prejudicial to the accused. In the circumstances of this case, before deciding to admit the evidence of what the boy, Healy, said at the identification parade, the trial Judge should have considered whether he should not follow the practice so clearly approved of in Christie’s Case (1). Instead he took quite a different line to which very strong objection is taken by Mr. Bell. He contends that the learned Judge’s direction as to the value of the evidence was ambiguous and might be seriously misleading. The trial Judge told the jury that the Healy boy’s evidence was positive evidence of identification, that is to say (as it might be understood by a lay man), positive evidence against the accused of his having been the person who committed the crime. This was all the more vital in that the. sole issue was that of identification of the offender. If it were found impossible, or inexpedient, to call the young boy, then on the facts of this present case this evidence ought not to have been presented to the jury in the guise in which it was here presented by the trial Judge in his charge. Later in his charge the trial Judge said to the jury:”Consider the evidence of the boy, John Mooney. Consider the evidence of the witness, Mr. Nohl. Consider the evidence of little Healy at the identification at the Bridewell. Consider all these matters very carefully.” Put in this way, it might suggest to the mind of a juryman that the evidence relating to Nicholas Healy’s identification was of equal value to that of John Mooney and Mr. Nohl. Furthermore, Mr. Nohl had said that he was not 100 per cent certain of his identification. He explained this by saying that at the time he was nervous as to the result it might have for him to be positive of his identification at the parade and he was positive in the witness box. In view of the fact that the man he saw on the road and at the gate was not wearing an overcoat it would have been proper to draw the attention of the jury to these two matters.
Already there was some inconsistency in the versions of the identificationby the other witness, John Mooney an inconsistency which was not necessarily destructive and was capable of explanation, yet one which might have inclined the jury towards doubting it. Any advantage to the accused in that might well have been neutralised by the evidence as to Nicholas Healy’s outside identification.
Furthermore, this evidence, if put forward as evidence connecting the accused with the crimeand such was the character in which it was put to the jurywas hearsay evidence. As such, Mr. D’Arcy, for the Attorney General, concedes that it called for explanation and advice to the jury as to its nature, purpose, and shortcomings. It offended, when presented as it was, the “best evidence” rule.
In reply to these objections, Mr. D’Arcy contends that, looking at the background and the effect of all the other evidence, the objections lose the significance they may appear to have when viewed in isolation. As against this, however, must be set Mr. Bell’s general argument that the whole issue was identification, as at no point was the accused’salibi admitted to probability.
The next ground of objection deals with the prisoner’s own evidence. He elected to give sworn evidence and it is complained that he was not allowed to give his evidence in his own way but was unnecessarily questioned by the Judge, these questions often partaking of the quality of cross-examination. It is not contended that the presiding Judge may not examine an accused. It may often, indeed, be his duty to ask such questions in the interests of justice. But here it is contended there was an unnecessary examination. It does appear that virtually the entire of the applicant’s evidence was elicited by questions from the learned trial Judge. It is, however, difficult to evaluate the effect of this examination of the accused by the Judge at the trial. In fact it may have been of assistance to the accused in presenting his account in a complete and orderly sequence and this Court is unable to say that the accused was not given a sufficient opportunity to give his evidence in his own way or was prejudiced in making his defence.
The evidence as to the place where the applicant boarded the bus after the time when the crime is known to have been committed, or rather the conflict between tho applicant’s evidence and that of the bus conductor, was of some importance to the credibility of the prisoner’s account of his movements during the critical period, but not of much intrinsic importance. No point would have been taken on it were it not that the learned trial Judge, it is contended, raised it to the status of a substantial issue. Then, argues Mr. Bell, it became of greater importance on the credibility of the prisoner. It was possible, even on the evidence of the conductor, for the jury to find that the prisoner may have boarded the bus at the place he said he did. He made such a case. This was not put to the jury and the evidence of the conductor was treated, if believed, as absolutely excluding the prisoner’s version of this episode. Taken by itself this ground is not sufficiently strong to warrant interference with the verdict. The manner in which the evidence was dealt with was not wholly satisfactory.
The prisoner in his account given to the investigating gardai had stated that he returned to Dunmore Cross where he had left Miss Snailes. In the meantime he had gone home, spent some time there, having at first decided to remain at home, but, according to his evidence at the trial, washed and left again with the intention of going back to Dun Laoire. He discorded his overcoat and left without ita fact of importance to the prosecution’s case. He then walked to Dunmore Cross, his explanation for that being the possibility of there again meeting Miss Snailes.
It remains to say that the sweeping arguments of Mr. Bell concerning what is termed, rather unsatisfactorily,”visual identification” are not accepted. There is no authority for the proposition advanced, which if correct, would amount to pronouncing that every instance of identification of an accused person by sight must be accompanied by warnings of danger. This general ground of objection fails.
The Court, however, is of opinion that the following grounds have been established, viz., 1, that the evidence of Mrs. Handyside of the statement made to her by her son should not have been admitted; 2, that a warning should have been given to the jury with regard to the unsworn testimony of David Handyside; 3, that in view of the fact that the boy, Nicholas Healy, did not give evidence, it should have been considered whether evidence of his acts and words at the identification parade should have been admitted and even if it were admissible that a warning should have been given to the jury on the same lines as would have been required had the boy given evidence at the trial; 4, that there was a misdirection as regards the nature and effect of this evidence.
Mr. D’arcy, while conceding that the warning should have been given in the instances referred to, urges the Court to apply the proviso to s. 5 of the Courts of Justice Act, 1928, that is, to dismiss the appeal although the grounds of objection above-mentioned are resolved in favour of the applicant. After much consideration the Court feels itself unable to do this. Undoubtedly the prosecution made a very strong case against the accused. The Court, however, feels that the objections which it considers to have been sustained are so serious that they render the trial unsatisfactory. Accordingly the verdict must be set aside. A new trial, however, will be ordered.
The People (Director of Public Prosecutions) v Eugene Prunty
1985 No. 16
Court of Criminal Appeal
15 May 1986
[1986] I.L.R.M. 716
(McCarthy, D’Arcy and Egan JJ)
McCARTHY J
delivered the Judgment of the Court on 15 May 1986 saying: On 10 August 1983, William Sommerville was taken by force from his home at Enniskerry, Co. Wicklow and held for a period of approximately 24 hours during which, following a series of telephone calls, a ransom for his release was deposited at a quarry near to his home and information was given as to where he might be found. Michael Boyle and Eugene Prunty, the applicant, were both charged with offences arising out of the incident; Michael Boyle pleaded guilty and has been duly sentenced; the applicant pleaded not guilty and was tried over a number of days by a jury in the Dublin Circuit Court before His Honour Judge Dominic Lynch. He was convicted of both offences charged in the indictment and was sentenced to ten years’ imprisonment.
The prosecution case took two forms, the identification of the applicant’s voice as recorded on a tape made from a telephone call to the Sommerville home at 5 p.m. on 11 August, in which the caller gave directions as to the payment of the ransom money, and, further, evidence as to the continuous association of the applicant with Michael Boyle during the morning, afternoon and evening of 11 August and his presence at or near the telephones from which five other calls were made to the Sommerville residence all related to the demand for and payment of ransom. These two methods of establishing guilt were both independent of and inter-dependent on each other. The court accepts that the applicant could properly have been convicted on both counts of the indictment on the tape identification alone or on the circumstantial evidence from the association with Boyle at the several critical times.
It is contended on behalf of the applicant that the ‘tracing’ of the incoming calls to the various telephones around the town of Bray at or near to which Boyle and/or the applicant were at the critical times was established, in part, by hearsay evidence. The method of tracing the calls was examined in depth, in the absence of the jury, when objection was taken to the admission of the evidence of James Loughman on these grounds. It is not clear on what basis the learned trial judge failed to hold that there was an element of hearsay in the chain of proof. Counsel for the Director of Public Prosecutions, in this Court, has not sought to contest that there was this element of hearsay but has asked this Court to adopt what might be termed the somewhat robust attitude taken by Lord Pearce and Lord Donovan, in the minority, in Myers v Director of Public Prosecutions [1965] AC 1001. It may be, as in Myers case, where the essential witness cannot be obtained, the court should feel obliged to admit records, albeit hearsay, but there is no evidence that such is the case here. At first sight, in any event, it would seem that a means of proof analogous to that of the Bankers Books Evidence Act would require the intervention of the legislature.
The court does not accept, as was submitted, that this evidence of tracing was vital; there was ample other evidence to support the conviction, but the matter does not rest there.
The identification of the applicant’s voice on the tape of the 5 o’clock telephone call was clearly and unequivocally made by Detective Garda Lambe. It was, however, subject to the valid criticism, not as to admissibility but as to weight, that whilst Garda Lambe had known the applicant since his schooldays, his knowledge of his speaking voice on the telephone was very limited and had not been tested within the previous twleve months. The supportive effect of the ‘tracing’ evidence was accordingly, most significant at least until the applicant himself gave evidence. The jury heard the applicant in the witness-box for some hours and had ample opportunity to use their own hearing, as they were entitled to do, to determine if the voice on the tape was the same as that of the witness. Indeed, it is inconceivable, having regard to the very fact of conviction, that the jury were not satisfied that the two voices they heard were of the same man.
Further, it is said, the improper admission of the hearsay evidence in tracing the telephone calls, not merely in respect of the 5 o’clock call but, also in respect of the five other telephone calls, affected, in a significant way, the conduct of the case for the defence. At the trial, the applicant chose to give evidence and much of his direct examination and cross-examination was concerned with accounting for his movements on the particular day and for his presence at or near a particular telephone. If the ‘tracing’ evidence had been ruled out as hearsay, in part, then such evidence might well not have been necessary on the part of the defence. The defence, it is said, was embarrassed by the erroneous ruling.
The proviso
Despite the error in the course of trial, counsel for the Director of Public Prosecutions has argued that this Court should apply what is conveniently, if somewhat inaccurately, called the proviso. S. 5 (1) of the Courts of Justice Act 1928 which confers the following jurisdiction on this Court:
(a) The court may notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.
In Attorney General v Hurley (1937) 71 ILTR 31 the Court of Criminal Appeal, per Kennedy CJ, in applying subs. (1) (a) said:
We are of the opinion that in the face of the volume of evidence which was given at the trial, an overwhelming case was proved which the jury could not, without perversity, have ignored so as to find an acquittal. We cannot see how any twelve reasonable men, having heard the evidence that was presented to them, could have found other than a verdict of guilty in the case.
In The People v Ruttledge [1946] 1 Frewen 75 this Court said, per Black J:
There have been cases in which the indictment was bad for duplicity, but where in spite of that the appeal was dismissed under the provision just quoted. R. v Robertson 25 Cr App R 208 is an example and also R. v Thompson [1914] 2 KB 105 in which Lord Reading LCJ said of this sensible provision that ‘one of the objects was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice’. He added that in such circumstances ‘the court must act upon the proviso’. This Court takes the same view of its duty where no embarrassment or prejudice has resulted. But, such a result might be caused in two ways; first by embarrassing the accused in his defence; and secondly by leading to a conviction which would leave a permanent doubt as to the precise offence thereby imputed.
In The People v Campbell [1983] 2 Frewen 131 this Court said, of this power (per Hederman J):
This is a power to be exercised only in exceptional circumstances, but it is clear that in this case no miscarriage of justice has actually occurred and that exceptional circumstances exist which justify the court in dismissing this appeal in so far as it relates to the point now being considered.
(The point was a typographical error in the indictment).
In the context of the instant application, the court is satisfied that the court should not apply the provisions of s. 5 (1) (a) of the 1928 Act unless it can be demonstrated that the jury, in arriving at this verdict, did not take into consideration evidence which was inadmissible. The court is unable to reach any such conclusion and accordingly will not apply the provisions of s. 5 (1) (a). It follows that the application for leave to appeal must be granted, the hearing of the application treated as the hearing of the appeal, and the conviction set aside. It is conceded that, in such circumstances, there is no reason not to order a new trial and the court will, accordingly, so order.
Having regard to this conclusion, it is not necessary that the court should express any views on any other of the matters canvassed in the course of the hearing. The case is, however, unusual in that a significant part of the evidence consisted of a tape recording and the court considers it proper to express certain views in that regard.
1. If shown to be an authentic recording, defects in the quality of such a recording are not a ground for not admitting it in evidence. This observation would apply to any properly proved copies of such original recording, if for any reason the original were not available at the trial.
2. The fact that there is a dispute as to the identity of the speaker or speakers on the recording is no ground for exclusion.
3. The fact that many other persons might have had the opportunity of hearing the recording and expressing an opinion as to the identity of the speaker or speakers and were not called to give evidence is not, of itself, a ground for excluding the recording from being admitted in evidence.
4. In a case such as the present, where the offence was alleged to have been committed by two or more individuals, there is no rule of evidence that excludes from the proper consideration of the jury the personal accounts of recipients of telephone calls or the mechanical recordings of the same on the ground merely that such calls were not made by the individual then on trial, if it is shown that they were made as part of the transaction as a whole, a circumstance which appears abundantly clear in the present case. The prosecution appears to have conceded that the details of the ‘Boyle’ telephone calls could not be told to the jury; this view was incorrect.
5. If evidence pointing to poor quality or other inadequacy of a sound recording, is given on the part of the defence, the trial judge should not omit to remind the jury of this evidence, irrespective of the proximity in point of time of counsel’s address to the jury. In the instant application, however, the circumstances of that aspect of the charge of the learned trial judge were such as would well lead the court to apply the provisions of s. 5.
Representation
DPP -v- Peter McDonnell
[2009] IECCA 16 (03 March 2009)
JUDGMENT of the Court delivered by Mr. Justice Kearns on the 3rd day of March, 2009
This matter comes before this Court by way of an appeal against severity of sentence brought by the applicant Peter McDonnell following a sentencing hearing in the Dublin Circuit Court at which, in addition to the direct evidence tendered by the prosecution, it is alleged on behalf of the applicant that some hearsay and opinion evidence was also received by the court.
On 25th February, 2008 the applicant entered a plea of guilty to the offence of possession of a controlled drug, to wit, cocaine for the purpose of sale or supply at Cushlawn Way, Tallaght in the City of Dublin on 10th November, 2006, contrary to s.15 and s.27 (as amended by s.6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act 1977, and the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Act of 1977. Subsequently, on 16th June, 2008, he was sentenced to a term of imprisonment for three years in the Dublin Circuit Criminal Court. The final twelve months of the sentence were suspended on terms for a period of three years. A co-accused, David Doyle, who had similarly entered a plea to possession of a controlled drug for sale or supply on the same date and at the same address, received a sentence of three years which was wholly suspended on conditions. Neither man had any prior convictions.
The background facts may be briefly stated. On 10th November, 2006 Detective Garda Griffin and a colleague, Garda Noonan, were maintaining surveillance of dwelling house premises at 86 Cushlawn Way in Tallaght and had in their possession a warrant to search the premises in question. During the course of the surveillance operation, a silver Nissan motor vehicle drove into Cushlawn Way and parked outside number 86, a dwellinghouse occupied by David Doyle. The driver of the motor car was the applicant. Shortly after the applicant arrived, David Doyle also arrived and both men entered the dwelling house. Approximately fifteen minutes later the applicant left the dwellinghouse and drove out of Cushlawn Way in his motor car. The car was stopped and searched and during the course of this search the applicant attempted to discard a bag containing just under €1,000 worth of cocaine. The gardaí then proceeded to search the dwelling house and there found a stash of cocaine with an approximate street value of €7,080, together with a weighing scales and a small sum of money. In the course of garda interview David Doyle indicated that he was storing cocaine in the house for some other party because he owed a debt. He stated he was working off the debt by storing the cocaine and claimed to be in genuine fear of the person for whom he was holding the drugs. He admitted to using cocaine himself and had run up a drug debt as a result.
The applicant, Peter McDonnell, also accepted that he had been involved with drugs for a number of years as an addict and that his addiction to cocaine had “spiralled out of control” since 2005. He answered all questions put to him in interview by the gardaí following his arrest.
In the course of the sentencing hearing, the trial judge intervened during the course of the cross-examination of Detective Garda Griffin by counsel for the applicant to ask the following questions:-
“Q. How long do you say these people were involved in this trade?
A. Prior to the date of the incident, a number of years, Judge. One of the accused would have been known to us for a number of years.
Q. Right, which of them?
A. Mr. McDonnell. Mr. McDonnell was the primary target in this operation.”
By consent of the learned trial judge, Detective Garda Griffin was re-cross examined by counsel for David Doyle as follows:-
Q. Just one question with your permission, Judge. Insofar as you expressed at the outset to the Judge’s questions that this was something that had been going on for a number of years, correct me if I am wrong, but I don’t believe you’re asserting that my client was somebody who had been engaged in this sort of business for a period of years; isn’t that correct?
A. That is correct, Judge. Yes.
MR. COSTELLOE: Thank you.
Q. JUDGE: How long do you believe that Mr. Doyle was being used?
A. For a number of months prior to the incident, Judge. Mr. Doyle’s name only came into the operation at a later stage.
JUDGE: All right. I am much obliged, thank you.
This was followed by a re-cross examination of Detective Garda Griffin by counsel for the applicant in the following terms:-
Q. Over that last three years has any evidence been brought forward which has led to Mr. McDonnell being charged in relation to something similar?
A. Sorry can you repeat the question?
Q. Has any evidence been brought forward to the point where Mr. McDonnell has been charged with a similar type of offence, because at this stage we’re really dealing with speculation intelligence, suspicion? Mr. McDonnell has pleaded guilty to count 3, and he has never been charged with this offence before?
A. He hasn’t been charged with any other offences, only in relation to this incident Judge.
MR. McQUADE; Thank You
JUDGE: I am obliged, thank you.
Counsel for the applicant objected that it would be very wrong of the court to deal with the case on any other basis than on the evidence that was before the court. The applicant, – counsel said, – had accepted that he had been involved with drugs as a cocaine addict for the last number of years as opposed to the type of person the investigating Garda, based on suspicions, believed him to be. However, the learned trial judge in structuring the sentence specifically took into account the evidence given by Detective Garda Griffin. In the course of delivering judgment the judge stated:-
“Both accused have never been in trouble before, to this extent that they have no convictions recorded against them, but the offence of sale and supply of drugs is an offence that just doesn’t happen from the experience of this court on the once off, there is a history, there is a pattern, there is a scheme, that ultimately the gardaí learn about, pick up information about from people who they rely upon, from their observations, and people are watched and observed, and it appears that Mr. McDonnell was one of those people that the gardaí according to the evidence that I have from Garda Griffin, who again from the experience of this court is a well informed and experienced officer. Mr. McDonnell was someone who he and his colleagues were interested in for some years. He was the primary target, as he describes it, in this investigation. Mr. McDonnell in effect led the gardaí to Mr. Doyle, they didn’t know about him before, his name only came up late in the investigation, and it is the view of the garda officers that Mr. Doyle was involved for a matter of months only.”
Having noted the various mitigating circumstances which arose in the case of David Doyle, he noted that it had been accepted by the gardaí that Mr. Doyle was not involved in drug dealing over a lengthy period of time, that he had been “put upon” and that he was genuinely in fear of those above him. He noted that Mr. Doyle had no previous convictions and was in useful employment and had dependants. He took the view that he would give Mr. Doyle a chance for those reasons and proceeded to suspend the entirety of a sentence of three years imprisonment which he imposed. It is worth bearing in mind that in arriving at this conclusion the learned trial judge accepted and gave by way of mitigation to Mr. Doyle the benefit of considerable hearsay evidence which had been given by the investigating officer without objection from either the prosecution or his co-accused, the applicant herein.
In sentencing the applicant he drew a clear distinction between the two accused and stated as follows:-
“In respect of Mr. McDonnell, I regret I can’t go the same distance having regard to the evidence of Garda Griffin as to the involvement of Mr. McDonnell for a considerable period of time in this trade, and who was, as he has told me, the main target of the garda investigation. Now Mr. McQuaid has made the submission that it would be entirely wrong of me to proceed on the basis of that evidence, it being suspicion, never having led to any prosecution. I don’t accept that proposition. As I said I believe I am entitled to know the context in which these offences are committed and the role which the accused played in the operation under garda surveillance that led to the charges.”
The trial judge then proceeded to have regard to the various mitigating circumstances in the applicant’s case, including the fact that he had pleaded guilty, that he was not found in possession of the same quantity of drugs as his co-accused, that he was hard-working and had a dependant child for whom he was responsible. The sentencing judge imposed an identical sentence as that imposed in Mr. Doyle’s case but suspended only one year thereof.
While multiple grounds of appeal have been filed, they essentially consist of that raised in the following terms:-
“The trial judge erred in fact and in law in ruling that he was entitled to receive background information and knowledge regarding the applicant relating to the length of time the prosecuting member of An Garda Síochána believed the applicant was involved in the drugs trade, which information was entirely unrelated to the charge before the court, in order that he the trial judge might contextualise the charge and understand the scheme and operation the gardaí suspected was in place.”
On behalf of the applicant, Justin McQuade BL submitted that the questions which were asked were entirely inadmissible and predictably elicited responses which were plainly prejudicial from the applicant’s point of view. He submitted that the effect of the prejudice was well illustrated in the significant disparity between the two sentences. He submitted that the judge had no entitlement to receive hearsay in the form of general opinion evidence from Detective Garda Griffin and posed the question: what if Detective Garda Griffin’s opinion was wrong? Counsel submitted that such evidence as had been admitted would be clearly inadmissible at a trial. If that was so, he queried why it should be admissible at a sentence hearing. At para. 18 of his written submissions, Mr. McQuade posed the following questions:-
“Ought not the rule be that if evidence is not admissible at a trial, then it ought not be admissible at a sentence hearing? How can an accused possibly defend himself against such evidence? Why should an accused be placed in such a position, effectively to prove his innocence?”
Mr. McQuade relied in particular upon the decision of this Court delivered ex tempore in Director of Public Prosecutions v. Philip Delaney (Unreported, Court of Criminal Appeal, 28th February, 2000). In that case, the question which gave rise to the appeal was that posed by the sentencing judge in the following manner:-
“If there were a hierarchy of drug dealing or possession for supply, where would Philip Delaney stand if there were a hierarchy? Grade him out of ten really?”
In the course of its judgment delivered by Hardiman J. this Court ruled that the question was “entirely inadmissible”. The trial judge in that case later stated, having listened to some few sentences from the garda witness, that he could not receive evidence relating to addresses and the cutting up of heroin. He indicated he would receive the evidence de bene esse but otherwise ignore it. Of this approach, Hardiman J. stated:-
“This is quite wrong in principle on the hearing of a serious criminal charge, whether at the trial portion or the pre-sentence portion. There can be no question, logically or otherwise, of receiving evidence de bene esse, particularly evidence of such a dramatic character as this in answer to a question which makes it quite likely that evidence of that sort will be elicited. The evidence of opinion and facts extraneous to the charges is inadmissible and should not have been sought.
There is no entitlement in the Court’s view to receive general opinion evidence in such circumstances …”
Mr. McQuade submitted that there was really no distinction between the nature of the question asked in the Delaney case and the questions asked by the sentencing judge in the instant case. He further submitted that the questions were designed to elicit general opinion evidence extraneous to the charges and the answers that were given were demonstrably prejudicial from the applicant’s point of view.
In response, Mr. Sean Gillane, counsel for the respondent, argued that rules of evidence prevailing at trial have never been applied in the course of sentencing hearings. He contended that virtually all sentencing hearings are comprised of significant levels of hearsay evidence as they generally involve a single member of An Garda Síochána who gives an overview of the background to the case and the circumstances of the accused, in the course of which he will testify as to matters of which he has no direct knowledge. This operates, he said, in general more to the advantage of an accused person than to the prosecution. Various examples were offered, such as the commonplace enquiry of a garda as to whether he believed the accused would be before the courts in the future, the prosecuting garda’s lack of “prior knowledge” of the accused and the role which an accused person may have played in rehabilitating himself or in supporting his family or dependants
In the instant case, Mr. Gillane pointed out that it was counsel for the applicant’s co-accused who raised in evidence the question of being “known to the gardaí” and as such, the sentencing judge was entitled to enquire whether the same mitigating circumstance prevailed as regards the applicant. The co-accused had thus clearly presented his case on the basis that the opinion evidence of a garda officer was admissible and to be relied upon. These issues were also the subject of re-examination and neither accused objected to the questions when they were actually put to the garda. Mr. Gillane submitted that in those circumstances the learned sentencing judge was entitled to be furnished with relevant information regarding the background and context of the offences before him. He further submitted that it was clear from the case advanced on behalf of the applicant that the applicant wished to make general assertions concerning his involvement in the consumption of controlled drugs and thus the questions asked and answered were of direct relevance. If a court is asked to form an opinion, in ease of an accused person, in respect of previous dealings in controlled drugs, Mr. Gillane submitted that the court is surely then entitled to hear evidence which might speak to the appropriateness or otherwise of drawing such a conclusion.
DISCUSSION
The court is not convinced that the decision in, Director of Public Prosecutions v. Philip Delaney, (above cited), is and, was, intended to be, authority for a proposition that opinion evidence and hearsay evidence cannot be given at a sentence hearing. Such a decision would reverse, – and in an ex tempore judgment – the long established jurisprudence of the courts here in dealing with sentencing matters: a jurisprudence now followed for more than a century. It is adverted to by Alverstone L.C.J. in Douglas Campbell [1911] 2 C.A.R. 131 at 132/3. It was again stated by Goddard L.C.J. in William John Linsey Marquis [1951] 35 C.A.R. 33 at 35/6. This latter decision was cited and applied by Gannon J. in State (Austin Stanbridge) v. Seamus N. Mahon [1979] I.R. 214 at 218 /9 (a certiorari application, in which a convicted person alleged that he was not given an opportunity of dealing with prosecution evidence of his bad character)
In Director of Public Prosecutions v. Philip Delaney (above cited) Hardiman J. delivering the judgment of this Court held that, part of the evidence as to the quantity of drugs involved, the fact that they were handled in a professional way, and the matters in respect of the diary and the mobile telephone number, were admissible at the sentence hearing and to them there could not be a valid objection nor, was there in fact an objection. This was clearly because this evidence was directly relevant to the s. 15 charge to which Delaney pleaded guilty.
However, as to the question from the learned trial judge to the garda witness in that case asking as to where, if there was a hierarchy of drug dealing or possession for supply, he would grade the convicted man on a scale of 1 to 10, Hardiman J. held that this was to invite opinion evidence relative to facts entirely extraneous to the matter charged and to which the plea of guilty had been entered, and as such was inadmissible. This had in fact belatedly dawned upon the learned trial judge who tried to resolve the dilemma of having heard some evidence in this regard by holding that he would receive it “de bene esse” but that he would otherwise ignore it.
Again Hardiman J. correctly, in the view of this court ruled that this could not be done, whether during a trial or at the sentencing stage. The material which the learned trial judge sought to elicit was extremely prejudicial to the convicted person, was not relevant to the offence to which he had pleaded guilty, and did not relate to a previous conviction or to a subsequent conviction which he asked to be taken into account, and did not pertain to what Ryan and Magee (The Irish Criminal Process) refer to as “antecedents of the accused” (pp. 393/4).
In the opinion of the court the evidence elicited in the Delaney case was far worse than giving evidence of “other complaints”, which was condemned by Gavan Duffy P. in People (Attorney General) v. Michael J. Riordan [1948] I.R. 416, as “hearsay evidence [which] could have no bearing on the proper sentence to impose [and] ought not to have been tendered”.
It is an undeniable fact that a wider range of evidence has historically been regarded as being admissible for the purpose of sentencing than would be admissible at the pre-conviction stage of a trial.
The Law Reform Commission in its Consultation Paper on Sentencing (Dublin 1993) explicitly refers at para 1.22 to the fact that the rules of evidence are relaxed in sentencing hearings when it comes to character evidence “so that hearsay evidence may be relied upon”. Indeed in most cases a court will not impose sentence until it has had the benefit of considering reports from a variety of sources, perhaps most importantly from the Probation Service, in circumstances where large quantities of hearsay or opinion evidence are thereby placed before the court. It is difficult to see how sentencing courts could properly function without such information, or how, without causing administrative chaos, it could be received in any other way. Obviously defence counsel or solicitor, or an unrepresented prisoner could indicated an opposition to the content of a probation report or a Victim Impact Report or statement, and the court would have to take cognisance of and deal with such objection.
In the view of the Court an accused person would be singularly disadvantaged if the rules of evidence on sentencing hearings were to be applied in precisely the same manner as at trial. Many a convicted person has received a more lenient sentence as a result of gaining the benefit of hearsay evidence given by garda witnesses, whether it be in respect of one of the examples cited above or even a speculative belief on the part of a garda witness that the accused person will not re-offend. This is a valuable relaxation of the strict rules of evidence which operates for the benefit of convicted persons and has enabled the sentencing judge to construct a sentence which places the offence in context and which reflects the rule of law that the sentence is not for the offence, but rather for the offence committed by the particular offender. Were hearsay evidence to be regarded as inadmissible ‘in sentencing as at trial’ as contended for by counsel for the applicant, one might argue that its exclusion would have to operate even-handedly so as to also rule out, or at least render objectionable, the leading of hearsay evidence which is favourable to the accused as well as evidence which is unfavourable. The importance attached by the European Court of Human Rights to the principle of égalité des armes would seem, if one were to apply it in this context, to suggest no less. Moreover, a sentencing judge would be severely disadvantaged if obliged to approach sentencing in such a blinkered manner. A sentencing judge should not be obliged to structure the sentence in a case in a kind of factual vacuum devoid of all relevant contextual and background information.
To the extent that it might be sought to interpret the decision of this Court in Director of Public Prosecutions v. Phillip Delaney (Unreported, Court of Criminal Appeal, 28th February, 2000) in some such fashion, this Court, as appears hereunder, would wish to confirm that it does not share such a view.
Other than the decision of Gannon J. in State (Austin Stanbridge) v. Seamus N. Mahon, (above cited), there is a paucity of recent Irish cases providing guidance on the issue of the admissibility of hearsay evidence in sentencing. Other rulings and judgments of this Court which touch upon this topic in recent times, including D.P.P. v McManus (Unreported, Court of Criminal Appeal, ex tempore, 21 March, 2003), D.P.P. v Murphy (Unreported, Court of Criminal Appeal, ex tempore, 14 May 2002) and D.P.P. v Furlong (Unreported, Court of Criminal Appeal, ex tempore, 20 December, 2002) stop short of any detailed analysis of this difficult question.
The Consultation Paper of the Law Reform Commission to which reference has already been made, noted at para. 1.41 that the first task of a sentencing judge is to determine the factual basis upon which to assess the appropriate sentence. It noted that:-
“A principle of fundamental importance in determining the factual basis upon which to assess the appropriate sentence is expressed in the ancient maxim nulla poena sine lege, i.e. no one is to be punished on a charge for which they have not been tried and found guilty”
It noted further that in The People (Attorney General) v O’Callaghan [1966] I.R. 501 at 516, Walsh J gave this the weight of a constitutional prescript:-
“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted”
From its survey of both Irish and English cases the Commission felt able to elaborate some basic principles as follows at para. 1.42:-
(a) The sentencer must not impose sentence on the basis of an opinion that the offender is actually guilty of offences with which he or she has not been charged
(b) Where an offender has been tried and acquitted on some counts but convicted on others, the evidence of the charges of which he or she was acquitted must be disregarded
(c) Where an offender pleads guilty to some of the counts, but not to others, he or she must be sentenced only on the charges to which he or she has pleaded guilty
(d) Where an offender pleads guilty to a lesser offence not charged he or she must not be sentenced on the charge to which he or she has pleaded not guilty
Subject to those constraints, The Law Reform Commission nonetheless stressed that the imposition of an appropriate penalty required that the sentencing court should have before it appropriate information. At para. 11.4 of the Consultation Paper, the Commission adverts to the real probability that:-
“a fact finding process for sentencing decisions which had all the attributes of a formal trial could consume many times the resources devoted to the resolution of guilt or innocence”.
In The State (Stanbridge) v. Mahon [1979] 1 I.R. 214 (which in that case was tendered in respect of previous convictions of the accused) Gannon J. at p.218 of his judgment quoted Goddard L.C.J. in the English case of R v. Marquis [1951] 35 Cr. App. R. 33 where he stated:-
“The other thing to which I desire to call attention is that the learned Recorder seems to have had some doubt whether he could accept what he called ‘hearsay evidence’ of character after conviction . . . . . . . . . It would be a very unfortunate thing if evidence of that kind could not be given, because it would prevent evidence from being given in favour of the prisoner, and would prevent a police officer from saying: ‘I have made inquiries of the prisoner’s employer, he works well and his character is good.’ After conviction, any information which can be put before the Court can be put before it in any manner which the Court will accept.”
In the latest edition of O’Malley’s “Sentencing Law and Practice” (Thomson, 2006) the author stresses (at p. 566) that any relaxation of evidentiary requirements in this context must be approached with “great caution”, noting that:-
“In the United States and elsewhere, there is much greater concern to ensure that judicial findings on the circumstances surrounding the commission of the offence do not entrench on the constitutional role of the jury as fact-finder”
The United States, Federal Rules of Evidence 1975, as amended on 1st December, 2008, provide, by virtue of article 1101 (d) (3) that the rules of criminal evidence (which, under Rule 802, do not allow hearsay evidence during a criminal trial except for limited exceptions), do not apply at sentencing. However, the admission of hearsay statements in a sentencing context is subject to the requirements of the due process clause which roughly parallels Article 38.1 of the Irish Constitution.
Assistant Professor Michael S. Pardo, (University of Alabama School of Law), in an article entitled “Confrontation Clause Implications of Constitutional Sentencing Options” (2006) 18 (4) Federal Sentencing Reporter 230 at p.230 submits (correctly we believe), that:-
“Trial and sentencing are different procedures that raise fundamentally different types of evidentiary demands and requirements.”
In the United States, both the Supreme Court and the Court of Appeals have determined that hearsay testimony may be introduced at a sentencing hearing (see Williams v. Oklahoma, 358 US 576, 584 [1959]), although that regime also envisages a system whereby factual stipulations are agreed by the parties, the accuracy and completeness of which is subject to review by the sentencing judge who will have a pre-sentence report against which to test its accuracy and reasonableness.
In Canada a sentencing court is allowed to consider hearsay evidence. Indeed it is specifically provided for in the Criminal Code of Canada at s.723 (5). The general rule is that hearsay evidence is admissible but that viva voce testimony may be ordered from any person who has personal knowledge of the matter, is reasonably available and is a compellable witness when this is in the interests of justice. It is a matter for the discretion of the sentencing judge who is required under s.723 (2) of the Criminal Code to hear “any relevant evidence” during a sentencing proceeding. S.724 (3) further provides that where facts are disputed the court will hear evidence.
Thus in R v. Gardiner [1982] 2 S.C.R. 368. (1982) 68 C.C.C. (2nd) 477 (S.C.C.) at 514 the Canadian Supreme Court stated:-
“It is a commonplace that the strict rules which govern at trial do not apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceedings prevail. The hearsay rule does not govern the sentencing hearing. (Emphasis added) Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. (Emphasis added) He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime”. (Emphasis added)
The same Court expressed similar sentiments in the case of R v. Jones [1994] 2 S.C.R. 229 at 398:-
“The sentencing stage places a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender. If the sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information.” (Emphasis added)
Both of these cases were cited in support of a recent decision by the Court of Appeal in R v Piche 2006 A.B.C.A. 220 approving a sentencing court’s decision to receive old clinical and institutional reports of an offender’s ‘dangerousness’ although they contained hearsay.
The Australian Law Reform Commission in A.L.R.C. Report No. 44 ‘Sentencing’ published in 1988 noted that in respect of facts considered relevant by the court after conviction, the rules of admissibility were not to be applied strictly by sentencing courts to evidence adduced to prove those facts. It believed that to apply such rules would transform the sentencing hearing into an adversarial proceeding with increased costs and delays. It might also exclude, as this Court has already noted, some useful evidence e.g. of remorse, or that the offence was out of character. On the other hand the Commission noted that there remained the possibility of decisions being based on inaccurate or unfairly prejudicial material but nonetheless did not recommend the imposition in all cases of exclusionary evidentiary rules where facts relevant to sentence were in dispute, pointing out that if a particular factual dispute assumed special significance, the court’s finding should be based on strict proof. It would be for the court to decide whether a particular fact fell into this category. In all other instances decisions as to evidence would still have to be made rationally and fairly. Significantly, in its latest report on the sentencing of offenders: “Same Crime, Same Time” (2006), the Australian Law Reform Commission (at para. I3.83) re-iterated its view that rules of evidence should not be applied strictly at sentencing hearings. The Australian courts may however in an appropriate case give a direction that strict rules of evidence shall apply.
It is, of course, fundamental in considering the nature of admissible evidence to have due regard to the potential danger which can arise where evidence is given by a prosecution witness, usually a police officer, as to an accused person’s character.
the case of, Douglas Campbell [1911] (above cited), Alversone L.C.J. held as follows:-
“For many years it has been known that after the conviction of a prisoner it is the duty of some responsible officer of police to tell the court what he knows about the prisoner as the result of enquiry, where it would involve great difficulty and expense to prove the facts by legal evidence . . . . . . . . . . . .. . .
At times no doubt, the police officers on these occasions say more than they ought to say against prisoners; but there is nothing to shew that that occurred in this case. It is important to consider what the action of the Court should be when it is suggested that some of the statements are no not correct. If the prisoner wishes to deny anything, he can, especially if he is represented by counsel, do so at the time. In this case he had every opportunity of doing so, and it does no appear that he now wishes to contradict the statements, but merely to urge some extenuating circumstances. If the prisoner challenges any statement it is the duty of the judge to enquire into it; if necessary he should adjourn the matter and if it is of sufficient importance he may require legal proof of it. Or he may ignore it and if he does so he should state that he is not taking it into consideration. If the prisoner does not challenge the statements, the court may take them into consideration, and no injustice is likely to be done. Very often it is in the prisoner’s interest that his antecedents should be stated: if it is not so, that is not the fault of the police, but of the antecedents.”
In the case of William John Linsey Marquis [1951] (above cited), the full passage from the judgment of Goddard L.C.J. is as follows:-
“The other thing to which I desire to call attention is that the learned Recorder seems to have had some doubt whether he could accept what he called “hearsay evidence” of character after conviction. Of course he could, because after conviction the Court is always informed of the character which the prisoner bears, and that charcter is very often proved by a police officer perhaps in Devon referring to convictions which have taken place in Northumberland or Yorkshire, or anywhere else. He cannot speak of his own knowledge about them, but he can produce the prisoner’s record, and it is always perfectly proper to take into account any information which can be given either for or against the prisoner although the matter is not proved with the strictness which would be necessary to prove an issue during trial. It would be a very unfortunate thing if evidence of that kind could not be given, because it would prevent evidence from being given in favour of the prisoner, and would prevent a police officer from saying: ‘I have made inquiries of the prisoner’s employer, he works well and his character is good’. After conviction, any information which can be put before the Court can be put before it in any manner which the Court will accept.”
As the Irish Law Reform Commission noted at para. 1.23 of its paper:-
“It is generally accepted that the role of the prosecution in sentencing is to provide the court with information – not to seek to influence the court’s sentencing decision in any way. However a problem which may occur when evidence of antecedents is being given by a prosecution counsel or a garda officer is that damaging general remarks about the defendant’s character, which are not capable of substantiation, are made, having the effect of damning the offender in the eyes of the court”.
That the respondent is clearly alert to such dangers is manifest from “Guidelines for Prosecutors”, (first published in 2001 and, last revised in October, 2007) which provides as follows at para. 8.16:-
“Where there is a significant difference between the factual basis on which an accused pleads guilty and the case contended for by the prosecution, there is an adversarial role for the prosecution to establish the facts upon which the Court should base its sentence.”
Summarising, it seems quite clear to this Court that the admission at a sentencing hearing of hearsay evidence to suggest the commission of prior criminal offences on the part of a convicted person for which he has not been tried and found guilty or even if charged, he does not require to be taken into account, would infringe Article 38 and Article 40.4.1 of the Constitution which former provides for a trial in due course of law for any such alleged offence and, which latter provides that no citizen should be punished on any matter on which he has not been convicted, (The People (Attorney General) v. O’Callaghan (above cited.
Hearsay evidence of character, antecedents, and as to the background to the particular offence being dealt with, including the extent of the role played therein by an accused may, at the discretion of the sentencing judge, be received, subject to the requirement that if a particular fact assumes specific significance or is disputed the court’s findings should require strict proof. It is a matter for the sentencing judge to decide what weight should be attached to such hearsay evidence as is received, noting any objection taken thereto and any arguments or evidence offered in rebuttal.
DECISION
In relation to the instant case and the particular evidence before the sentencing court, this Court believes it was permissible for the sentencing judge to receive the evidence of Detective Garda Griffin as to which of several convicted co-offenders played a greater or lesser role in the particular offence in respect of which sentence was to be imposed. To rule out the possibility of such evidence being given in every circumstance, particularly in the context of mitigation, would mean that all co-offenders convicted of the same offence would require equal treatment, the least mature and inexperienced or the one least involved being treated in precisely the same way as the most experienced participant. The Court is of the view that such evidence may be received, as occurred in this case, not to aggravate or increase the sentence, but to assist the judge in determining what mitigating factors (if any) should properly influence the sentence he was about to impose on the various co-accused. In this case the applicant’s prior history as a drug user was not relevant to the proof of the offence charged and to which he pleaded guilty. It was offered by counsel for the applicant by way of explanation of the applicant’s involvement in the particular offence and hence a factor to be considered in mitigation. However, the question asked by the trial judge crossed the line into the realms of inadmissibility because not only was it irrelevant but also because of the suggestion of other uncharged criminality implicit in it. The sentencing judge inquired whether, and, was specifically told that the applicant had been involved in the drugs trade for “the last number of years”. The other evidence of Detective Garda Griffin that the applicant was a person who “would have been known to us for a number of years” and, his further statement, “Mr. McDonnell was the primary target in this operation”, must be seen in the context of having legitimately arisen from the above concession made by the applicant and, the evidence that Mr. Doyle was someone who up to that point was virtually unknown to the gardaí. Furthermore, in re-cross-examination by counsel for the applicant, the investigating garda made it clear that the applicant had not been charged with any other offences. That said, the Court takes the view that the question asked by the sentencing judge as to how long the applicant had been involved in the “trade” went beyond what was permissible and should not have been asked. It invited a response clearly suggesting that the applicant had been supplying or selling drugs in the past, and therefore involved in crimes in respect of which he had not been charged, tried or convicted.
The Court believes it is possible in this case to acknowledge there was an error of principle in relation to the question posed about prior involvement in the ‘trading’ of drugs but to hold nonetheless that the sentence imposed should stand. It is of significance that, in imposing sentence, the sentencing judge imposed identical sentences on both men. A distinction was drawn between them in that the entirety of the sentence imposed on David Doyle was suspended, whereas only the final twelve months of the sentence imposed on the applicant was suspended. This was because the sentencing judge found more mitigating circumstances in the case of David Doyle than in the case of the applicant. It was not the position therefore that the sentencing judge had regard to inadmissible evidence, including the impermissible question and reply thereto, as something which might go to increasing sentence. He viewed it exclusively in the context of balancing a number of competing factors going to mitigation. It was open to the sentencing judge to treat both co-accused differently. The evidence in this regard in relation to David Doyle was materially different from that in relation to the applicant. The applicant at no stage suggested that he had acted under duress or fear. Leaving aside the impermissible consideration, the sentencing court was entitled on the other evidence before it to take the view that the applicant, of the two men involved, played the more culpable role. That being so, the Court will not interfere with the sentence and will dismiss the appeal.
DPP v Ryan
[2017] IECA 108
JUDGMENT of the Court delivered on the 30th day of March 2017 by Mr. Justice Mahon
1. The appellant has appealed his conviction at Limerick Circuit Criminal Court on 24th October, 2013 on two counts, namely:
(1) Count 1; False imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act, 1997, and
(2) Count 2; False imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act, 1997
The conviction followed a 14 day trial and a unanimous jury verdict.
2. The appellant was sentenced on 28th January, 2014 to concurrent sentences of eight years and three months. The sentences were directed to be served consecutively to a two year prison sentence imposed in Castlebar Circuit Court on 21st January, 2014.
3. In summary, the background facts are as follows; overnight on the 19th/20th August, 2012 two men, Stephen Cusack and Niall Reddan, were falsely imprisoned at an address in Castletroy, County Limerick by three men including the appellant. The hands of both men were tied with cable ties and they were gagged. They were then taken to a derelict house near Ballyclough in County Limerick where Mr. Redmond was released. Mr. Cusack was then taken to a field at Donoughmore, County Limerick from where he made good his escape.
4. The prosecution case was that it was intended to hold Mr. Cusack for ransom in order to facilitate a robbery of a post office in which Mr. Cusack’s mother was employed.
5. The prosecution case relied on recognition evidence by Mr. Cusack at an identification parade at Henry Street Garda Station on 29th August, 2012 based on his view of the appellant on the evening of the offence.
6. The appellant’s grounds of appeal, including the third ground which he belatedly sought leave of the Court to add, are as follows:
(i) The learned trial judge erred in law in failing to discharge the jury when requested by the defence following the evidence, before the jury, of a prosecution witness that the appellant had been in prison previously and to the effect that the appellant had previous convictions.
(ii) The learned trial judge erred in law and in fact in failing to sufficiently contextualise the warning pursuant to AG v. Casey (No. 2) [1963] I.R. 33 in respect of identification evidence upon which the prosecution relied wholly or substantially.
(iii) The appeal against conviction should be allowed as the verdict remains unsatisfactory as the evidence indicates a significant reasonable risk that the prosecution witness, Stephen Cusack, was informed in advance of the identification parade or after the parade in advance of the trial, that the appellant would be participating or had been a participant in the parade which renders the evidence at trial valueless in the context of a prosecution which is reliant wholly or substantially on the correctness of the identification evidence.
7. No issue was taken by the respondent on the application to add the ground of appeal, and the appeal proceeded on that basis.
8. Oral submissions were heard in respect of the first ground only, and this judgment relates only to that ground.
9. In the course of examining a witness, Ms. Troy, on the twelfth day of the trial prosecuting counsel asked her:-
“And can you remember any particular night upon which that happened?”, to which she responded, “I don’t. He was over and back as I told you when he got out…”
10. In the course of her evidence Ms. Tara Troy confirmed that she knew the appellant, and pointed him out in court. She was then asked:
“Q. … and do you remember when you first came across Zachary Coughlan?
A. I do.
Q. When was that?
A. Whenever he got out of jail the last time.”
11. Prior to this point in the trial, the jury was unaware that the appellant had any previous record or had been imprisoned. In fact, the appellant had been in prison on more than one occasion. Following upon this evidence being given to the jury, counsel for the appellant applied to the learned trial judge to discharge the jury. He refused that application, stating,
“There is an application now to discharge the jury on the basis that the … last civilian witness, Ms. Troy, said that she first got to know the accused the last time he came out of prison. Well this was evidence given by Ms. Troy who is a witness for the prosecution. She was on the book of evidence, but was not going to be called for the prosecution, but was called at the instigation of the defence. That is the first point. Secondly, this matter was said by Ms. Troy, not as – it was an answer which was not invited by the prosecution. It was an answer that came from her at no invitation of the prosecution. And accordingly I will not discharge the jury. I will tell the jury of course that it is irrelevant. And that it is a matter that they should not take into account and I expect that they will not take it into account, just as much a judge who knows about these matters does not take it into account either.”
12. The learned trial judge added,
“I want to keep the jury”.
13. The basis for the application to discharge the jury was that their minds had been tainted by Ms. Troy’s revelation of the fact that the appellant had previously been in prison on more than one occasion, and that such evidence was seriously prejudicial to him and rendered a fair trial impossible.
14. The application to discharge the jury was again made on behalf of the appellant at the close of the prosecution case. Again, it was refused by the learned trial judge.
15. The issue was addressed by the learned trial judge in his charge to the jury, thus:-
“Now, the last think I want to mention as regards the .. before I go into .. give you a resume of the case is the fact that Ms. Tara Troy in the course of her evidence referred to the fact that the accused had previously been in prison. She should not have said that, and the reason she should not have said that is that such matters are not put before a jury – a jury does not hear such matters for a very good reason. A jury is asked to consider the evidence as it is and not to consider – to take into account previous matters adverse to the accused because you are to consider the evidence against him in this particular case and not be influenced because if you were influenced by any previous record of the accused that would be wrong. So you have to put that out of your mind. Now this is important. That is not to feature at all in your considerations and if anybody brings it up in the jury room the other jurors should say no, this is – we are to take this case and run it on the basis that this man is a man of good character. This came out by Ms. Troy. She shouldn’t have said it, and because she shouldn’t have said it you are to ignore it and not put any reliance on it. And, members of the jury, I am sure you will do that. And I am sure you will understand the reason for this. I mean some people do say, well all of this should be made known to the jury, but the law is that it shouldn’t, and there is a very good reason for it, and it’s a commonsensical reason as well, and I know you will observe this and not take it into account.”
16. The trial judge was requisitioned on behalf of the appellant in the following terms:
“Now with regards to Tara Troy your Lordship said it shouldn’t have been said. Ooh, tut tut tut, this is America, strike it from your mind, strike it from the record, as if that makes things better as if that makes things better. Your Lordship gave it the rub a dirty rag in an attempt to clean it up by the suggestion that he might have been in jail before has nothing to do with this. And yet your Lordship must have a pain in his jaw from telling people and the people of Limerick generally that people who commit previous offences are more likely to have committed this one than another and that’s your Lordship in handing down sentences on pleas. So I don’t understand what your Lordship is at with regard to this. I suggested to you at the time that this was completely beyond remedy. It clearly is so now. The very least your Lordship could have done: and I am not your Lordship and I am not marking your Lordship’s card – people in this jurisdiction has gone to jail for stealing a loaf of bread. People in this jurisdiction, women have been taken from their children for not paying their t.v. licence. My client might have seen the inside of a prison for driving without insurance, which would give him a perfect reason for not driving: not been seen to be driving. But that might be fair to him, so it is a matter entirely for yourself what to do. It is not good enough to give it a light rub of the rag to suggest that I make comment on the absence of CCTV. This is the Braddish point I said to you.”
17. The learned trial judge agreed to re-address the jury on the evidence from Ms. Troy. He stated:-
“…when I mentioned the fact that one witness had said – alluded to the fact that the accused had been in prison and I said to you in the strongest terms possible that that is not to be taken into account, it is of course possible that he was in custody for relatively minor matters. I mean, people do go to prison for relatively minor matters and that’s quite possible. But in any event, as I say, you are not to take that into account. ..”
18. Inadmissible evidence finds its way into many trials, usually accidently and inadvertently. When it does, its prejudicial effect will vary from case to case, obviously very much depending on what has been stated to the jury or how it might be interpreted by the jury. It is well established and long accepted that a jury should only be discharged where the prejudicial effect is significant and it is not possible to counter that prejudicial effect by suitably warning or directing the jury. Juries have proven themselves time and time again to be willing and capable of heeding judicial warnings and instruction and of acting appropriately in response thereto.
19. In Dawson and Or v. Irish Brokers Association (6th October, 1998,The Supreme Court) O’Flaherty J. stated:-
“Even if inadmissible evidence gets in, the jury should be taken as likely to abind by the trial judge’s ruling in all matters of all and by their oath to do essential justice between the parties… Oh, once again, it is necessary to reiterate as this court is doing with increasing frequency that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge’s ruling that something is irrelevant or should not have been given before them as well as in the face of adverse publicity.”
20. In D v. DPP [1994] 2 I.R. 465, Finlay C.J. said:-
“I am satisfied that there is much strength in the argument submitted on behalf of the DPP in the hearing of this appeal that this court should not disregard both the capacity of a trial judge strongly and effectively to charge a jury in a manner which would indicate beyond question their obligation to try the issues before them only on the evidence adduced, and the robust common sense of juries who might well ignore dramatic or sensational newspaper articles.”
21. In King v. A.G. [1981] IR 233, McWilliam J. stated:-
“One of the concepts of justice which the Courts have always accepted is that evidence of previous convictions shall not be given at a criminal trial except at the instigation of the accused, as that could prejudice the fair trial of the issue of the guilt or innocence of the accused.”
22. In DPP v. Keogh [1998] 4 IR 416, Kelly J. (as he then was) referred with approval to the views expressed by McWilliam J. in King. He said:-
“This statement is so well known that it hardly requires elaboration. It is a principle which is to be found not alone by reference to the constitutional concept of justice which imports fairness and fair procedures, but also by reference to the common law
23. In R v. Hope and Another [1976] 2WCA Crim, Milmo J., referring to the seriousness of the disclosure of a previous conviction to a jury, stated:-
“It is well settled that in the event of a prisoner’s previous conviction being improper or accidently revealed in the course of a trial, the judge has a discretion whether or not to discharge the jury..”
24. It is necessary therefore to consider the exercise of the discretion not to discharge the jury taken by the learned trial judge in the instant case in the particular circumstances that arose. Those circumstances can be usefully summarised as follows:-
(i) The trial was a lengthy trial. The relevant evidence was given by Ms. Troy on the twelfth day of the trial, the second last day of evidence in the trial.
(ii) The relevant evidence was given by Ms. Troy in response to questions put to her by prosecution counsel. There is however no criticism of prosecution counsel for the questions asked and he could not have been aware in advance of the responses provided by Ms. Troy.
(iii) Ms. Troy’s response “whenever he got out of jail the last time” suggested that the appellant had spent time in prison on more than one occasion.
(iv) The subsequent use of the phrase by Ms. Troy “when he got out” was, in the context in which it was stated, a reference to the appellant having been in prison.
(v) In his charge to the jury the learned trial judge emphasised that these remarks of Ms. Troy should be ignored by them, that they were to consider their verdict on the basis that the appellant was a person of good character, and that time spent in prison may have related to minor offending.
25. The process of exercising the discretion whether or not to discharge a jury is one which ought to be carried out by a trial judge on the basis of a full analysis of the relevant facts and a decision made based on the extent of any likely prejudice to the accused, and whether any such prejudice can be sufficiently countered in the charge to the jury at the end of the trial. On occasions, it will be appropriate for a judge not to refer at all in his charge to the inadmissible evidence in question to avoid reminding the jury of it, or emphasising the inadmissible evidence or comment which may have, in the intervening period, been forgotten.
26. The exercise of discretion by the trial judge whether or not to discharge a jury has to be undertaken in the light of the particular facts of each case, but always subject to the primary consideration as to the extent of the prejudicial effect of the inadmissible evidence on the jury and any likely consequential undermining of the accused’s right to a fair trial.
27. In the course of his ruling refusing the application to discharge the jury because of Ms. Troy’s remarks, the learned trial judge essentially provided two reasons for his decision. They were:-
“• Well…, this was evidence given by Ms. Troy who was a witness for the prosecution. She was on the book of evidence, but was not going to be called by the prosecution, but was called at the instigation of the defence. That’s the first point..”
“• Secondly, this matter was said by Ms. Troy, not a – it was an answer which was not invited by the prosecution. It was an answer that came from her at no invitation of the prosecution.”
28. The learned trial judge does not appear to have analysed the prejudicial effect of the evidence in question. His first point was that Ms. Troy was called as a witness by the prosecution at the instigation of the defence. However, in the court’s view that is not particularly relevant. The fact is that Ms. Troy was called as a witness and as such her evidence was heard by the jury. The situation would not necessarily have been different if she had been called as a witness for the defence, absent any suggestion of orchestration in the giving of such evidence.
29. The second reason given by the learned trial judge for his decision not to discharge the jury was that the evidence given by Ms. Troy was a response not invited by the prosecution. She gave her answer at no invitation of the prosecution. However, in the particular circumstances of this case, the fact that the inadmissible evidence was not invited by the prosecution is irrelevant. The fact is that the inadmissible evidence was given and was heard by the jury.
Conclusion
30. The court is satisfied that the prejudicial effect of the words spoken by Ms. Troy was significant. In particular, the fact that Ms. Troy’s remarks were, in effect, a reference to the appellant having been in prison more than once is of considerable concern. It created a real risk that the jury would, notwithstanding the strength of any judicial instruction to the contrary, approach its consideration of a verdict on the basis either that the appellant was not a person of previous good character or had been to prison on more than one occasion for serious offences. There is the added factor that Ms. Troy’s inadmissible evidence came at a very late stage in a very lengthy trial and shortly before the jury retired to consider its verdict, so that the matter may still have been fresh in their minds. There was insufficient time for a fade factor to set in and thereby come to the trial’s rescue Indeed the nature of the offences which were the subject of the trial were such as might reasonably suggest to the average lay person that the appellant’s previous prison sentences were unlikely to have been for minor offences.
31. In the circumstances the court has concluded that the jury ought to have been discharged in the wake of Ms. Troy’s inadmissible evidence. It will therefore allow the appeal on ground one and quash the appellant’s conviction. In these circumstances the court does not consider it necessary to proceed to deal with the second and third grounds of appeal.
32. The court will proceed to hear submissions as to whether or not a retrial is to be ordered.
Attorney General v. O’Keeffe
[1955] IR 24
Haugh J. 24
HAUGH J. :
7 May
Before a decision can be reached in this case, I have had to give careful consideration to the case recently decided by the President of the High Court, namely, Sullivanv. Robinson (1).
The charges in both cases are similar, but there are important differences in the facts as found and stated by the two District Justices.
In Robinson’s Case (1), following a motor accident, the accused was confronted by Dr. Sean Lavan, who had been brought to the station by the Guards. Dr. Lavan gave evidence as follows:”I am a medical doctor. On the 16th August, 1951, I went to Irishtown Station. My examination of the defendant started at 6.30 p.m. I said: ‘I have been sent for by the Guards to examine you to see if you are fit to drive a car. You are under no obligation to undergo this examination, if you have the slightestor I may have used the word, “any”objection. I am going to ask you a number of questions. You are under no obligation to answer any question, if you feel it will implicate yourself or anybody else.’ I also warn them not to make light of the questions I ask them, even though they may be simple questions.”
Dr. Lavan then proceeded to give evidence of his examination of the accused, and objection was made by Mr. Fahy, counsel for the defendant, and the District Justice there and then agreed to state a case for the opinion of the High Court. It is quite clear that, at that stage, on the Case Stated by the District Justice, there was no evidence whatever of the accused’s re-action to the doctor’s warning, or no evidence, or no suggestion, that the accused voluntarily agreed to Dr. Lavan’s examination, the result of which might have tended to incriminate the accused in the charge preferred against him. In the course of his judgment, Davitt P. said:”For these reasons it seems to me that when a doctor is called in by the police to examine a person, who is suspected of being drunk, with a view to preferring a charge against him, such as that in the present case, and the doctor converses with him, or conducts an examination involving question and answer, or submits him to certain tests evidence as to what he said, or of the result of the tests, should not be received by any Court trying the person upon the criminal charge unless the prosecution affirmatively establishes to the satisfaction of the Court that any statement in the nature of a confession made by the accused was voluntarily made, and any test the result of which tends to incriminate him was voluntarily undergone.”
In this present case the defendant was involved in a motor accident. He was taken to the Macroom Garda Station and charged with driving a motor lorry while drunk. At 12.50 a.m. on the 12th of August, 1953, Dr. T. J. O’Sullivan arrived at the station at the request of the Guards. In the presence of Dr. O’Sullivan, Sergeant Donohoe told the defendant that the doctor was about to examine him as to his sobriety, and that he (defendant) was not obliged to submit to any medical examination, unless he wished to do so, and that the result of such examination may be given in evidence, and that he (defendant) was entitled to call in any doctor himself.
At the same stage of the evidence in Robinson’s Case (1),Dr. Lavan’s examination of the accused was about to be given, but in this case the District Justice further finds as a fact that “. . . defendant stated that he did not object to being examined by Dr. O’Sullivan, and he did not want to have any other doctor.”
This is the important difference of fact that I have already referred to, and which, in my opinion, so completely distinguishes the two cases.
In my view this additional finding is the necessary element referred to by Davitt P. when he said “. . . evidence as to what he said, or of the result of the tests, should not be received by any Court . . . unless the prosecution affirmatively establishes to the satisfaction of the Court, that any statement in the nature of a confession made by the accused was voluntarily made, and any test . . . was voluntarily undergone.”
At the hearing of this charge before District Justice Keely, Mr. Harvey, solicitor for the defendant, raised four objections, but number three only was pressed before me, i.e., that Dr. O’Sullivan should have informed the defendant of the nature of the tests he proposed to use, and that he may give evidence of such tests. I hold against that submission. The defendant was made aware that he was about to be examined by a doctor, if he so consented, as regards his sobriety. A doctor is obviously brought in, in such matters, because of his special skill and training. I venture to say that the vast majority of patients who attend their own doctors submit themselves to countless tests with little or no real, knowledge as to what these tests are all about. The defendant in this case was fully and fairly informed of what his legal rights were, of what was about to take place, and the reasons for such examination; and he consented to be examined by Dr. O’Sullivan, and required the presence of no other doctor.
Accordingly, I hold that the prosecution had established its right to tender this evidence, and accordingly the District Justice was correct in law in accepting, and in acting upon, it in such way as he thought fit.
People v Clarke
[1995] 1 ILRM 355, O’Flaherty J
John Clarke, having been indicted for murder, was convicted of the manslaughter on 29 June 1991, at Coolock, Dublin of Glen Larkin after a three day trial at the Central Criminal Court before O’Hanlon J and a jury which culminated on 1 March 1993. He was sentenced to ten years’ penal servitude. He was also convicted of certain firearms offences but this judgment is concerned essentially with the manslaughter conviction, against which conviction the applicant applies for leave to appeal on a number of grounds of which the pertinent ones will be set forth later in this judgment.
Background facts
The background facts to the case were as follows. The applicant, who was then just short of 21 years of age, went on the day in question, 29 June 1991, to the Camelot Hotel, Coolock, to play pool with a companion, Brian McCabe. The time was around 8.30 p.m. when Glen Larkin and a companion, Gavin Lambert, came in. It appears that Glen Larkin came into the pool room looking for money to make a phone call and that he then accused the applicant and Brian McCabe of talking about him behind his back; in fact nothing had been said about him. Glen Larkin got very annoyed without any cause and he hit the applicant in the face. The applicant described what happened in the course of a statement that he made on 30 June 1991, the day after the fatality, to the gardaí and in regard to the essential facts of which there was no dispute — certainly as far as this first fracas was concerned. He said as follows:
[Larkin] turned around to me and said, ‘I’m fuckin going to kill you’. They’re the sort of words he uses. He gave me a punch in the jaw. He then picked up a pool ball and threw it at me. I grabbed him then and held onto him and pleaded with him to calm down saying, ‘Glen you’re doing this for nothing’. At about this point one of the bouncers, named Angus Andrews, came in. He grabbed a hold of Glen. Glen said, ‘I’m only talking to him [me]’. Then Glen broke loose from Angus and hit me another clout on the other side of the face. I was afraid of getting involved in a fight because of serious head injuries I got in a traffic accident. I said, ‘I can’t fight and I don’t want to fight ya because of these head injuries, just one slap would open my skull’. I said, ‘you’re just doing it for nothing’. I said that to him. Then another bouncer and a barman came in. Paul is the barman and the bouncer was ‘Harpo’ Norris. They restrained Glen but he succeeded in breaking away from them. He came over to me and hit me again. I picked up a pool cue and hit him with it. I hit him on the shoulder. He kept coming and eventually he got me against the wall and started hitting my face. He actually succeeded in biting and cutting my lip and tried to bite my face but didn’t succeed. The bouncers came over and grabbed him off me again. The blood was pouring out of me. I still kept telling him to stop but he was going mad. He was as high as a kite he was. He was definitely on gear [meaning drugs] at the time. I went into the toilet to wash my face and to get away from him. Just when I came out of the toilet he was coming down to the toilet. He started threatening me. He said, ‘I’ll kill you and Brian [McCabe]’ and then he started on me. He said, ‘I’m coming back here with a hatchet. You think your head is bad now but when I come back with the hatchet you’ll be a write-off. I’ll kill you stone dead’. I believed that he was capable of doing this and I was very much afraid of him. Then he started threatening my family. He said, ‘It’s not just you I’ll get, I’ll get all of your family and all of the Roes as well. He had a glass in his hand and was threatening me with it. The bouncer was nearby and should have heard this conversation. So should two of the bar girls — Rhonda McClusky and a girl named Liz. Brian was also nearby, … I told the bouncer Angus to take the glass off him because I was afraid he was going to hit me with it. He didn’t. He was probably afraid of his reputation and his family. Glen told me he was going to ‘Get a hatchet to chop your head up and then I’m going to get your family.’ I was …, afraid of my life because I knew he came into that pub before with a hatchet. Angus, the bouncer, told me this. I asked Rhonda McCluskey to ring my dad at … — home — to come up and collect me, but when she went out to make the call Glen was still there so she came back and gave me back the 20p I gave her for the ‘phone call. Angus told me not to go out because Glen was still outside. I waited for Angus to come in and say he was gone. I was just leaving when my brother, Tommy, came in. Tommy is 22 and living with his girlfriend at 1 Marigold Court, Darndale. Tommy and I had a chat about what had happened. I said, ‘What am I going to do? He’s coming back with a hatchet and he’s going to chop me up and then me family’. Tommy said, ‘You’d better get out of here and go down to my ma’s.’ Me and Tommy walked down. We didn’t walk, we actually ran.
The significance of the reference to the ‘Roes’ is that John Clarke had a girlfriend, with whom he was living, Christine Roe.
Christine Roe went to the Camelot Hotel after this initial fracas and was told about it and she at this stage met Glen Larkin who had returned to the hotel with his brother, Tommy, and another man. This was David Pearson. Christine Roe gave evidence that Glen Larkin had said to Brian McCabe that he was going to smash his house and burn it. She said that Tommy Larkin had opened his jacket and had a machete with a green cover on it and that he took the green cover off. According to her, Glen Larkin said that he was going to chop John Clarke’s head off and that he would burn her mobile home whether she and the children were in it or not.
The next phase of activities was that Glen Larkin together with his brother Tommy and David Pearson left the Camelot Hotel and headed for home. After they had gone a certain distance John Clarke approached them and, according to Pearson, Glen Larkin said: ‘There is no need for guns’. Pearson left on Glen Larkin’s bicycle and Tommy ran in another direction. About five minutes later they heard the sound of a gun shot from the area of a nearby industrial estate.
Tommy Larkin’s evidence was to the effect that he saw the defendant coming from the side entrance of Darndale with a rifle barrel hanging down under his coat. He also saw the accused’s father. He said that John Clarke was moving the gun upwards and said: ‘Glen, I want you.’ According to him Glen Larkin replied: ‘Leave it out, John, no guns’ and then shouted ‘run’ to his brother, Tommy. He had got home by the time he heard the shot. His home was a couple of hundred yards away.
Geoff Hawkins, a security man attached to the industrial estate, where the incident happened said that at about 9.50 he heard a loud bang and on going to investigate he saw a body outside the security fence.
Marie Carr, a sister of John Clarke, said that she went to the Camelot Hotel and was on the way home in her car when she heard that someone had been shot. She said that she met John Clarke and that he was in a bad state. He said he wanted to do away with himself. He thought he had shot someone. She said that she left him and went off to the Camelot and spoke to her parents. She brought the defendant John Clarke to St Brendan’s Psychiatric Hospital.
To revert to the account given by the accused in his statement. Having recounted that when he got home his mother told him that Larkin was a ‘junkie’ and in view of the bite that he had got that he should go to hospital because he might get AIDS, he then went on to say:
I was worried about the AIDS but I was more worried about him coming down and chopping my head up or attacking my family because he knows where I live. While I was there I got a ‘phone call from my girlfriend Christine to tell me that ‘Glen was up here — that’s at the Camelot because she was ringing from the Camelot — with a hatchet and he’s gone up to Tommy’s house’. I knew my father had two guns upstairs; a shotgun and a rifle. I went up and grabbed the shotgun and loaded it. It’s a single barrel shotgun and I only put one cartridge in it. I didn’t take any more with me. I only intended using it to frighten him — to get him to stop. Tommy and I then ran back up to Darndale. Tommy actually went ahead of me. We left just minutes apart. I was wearing a long blue jacket. I wasn’t actually wearing the jacket but I carried it over the gun to conceal the gun. Just as I arrived at Tommy’s place in Marigold Court, Darndale, I saw Glen coming towards me from the direction of the shops. He wasn’t really coming towards me. He probably didn’t even see me, but I could see him. I don’t know if there was anyone with him. I could just see him. He may have seen me I don’t know — but anyway he started running down towards Coolock, the Link Road. He was carrying something in his hand, I cannot say what it was because he was too far away. At the same time as we started running I saw my brother Tommy there but he didn’t run with me. He was shouting to me to ‘Stop, hold on’. That’s all I heard. I didn’t see my father there or hear him shouting at me. I lost sight of Larkin for a minute or so going through the alleyways in Darndale but when I got to the Link Road I saw him going across the road into the factories …. I followed him into the industrial estate because I thought he was going over to my girlfriend’s house. He had threatened the Roes earlier and this is the quickest route from Darndale to my girlfriend’s house, 21 Ferrycarrig Avenue, where I live as well. When I got into the industrial estate and got to the place I showed you beside Blue Water Shipping the two of us just met. He looked back and said, ‘I’m fucking going to kill you. I said, ‘Glen what are you bringing my family into it for?’ He told me to ‘Fuck off’. Then he started running towards me saying, ‘I’m going to kill you, I’m going to kill you.’ I said to him, ‘Glen go back, I don’t want to do anything, I don’t want to shoot you.’ I had the gun openly displayed to frighten him off, but he kept coming. He kept saying, ‘I’m going to kill you, I’m going to kill you.’ I believed that he was armed with a hatchet though I never actually saw the hatchet. He was running at me. I was holding the gun pointing down at the road. As he got closer I stepped back a bit but he still kept coming. I raised the gun intending to fire a shot over his head but he was still coming. I pulled the trigger and he fell on the ground in front of me. He fell right back on his back with his arms outstretched. I didn’t see any blood but I knew I had shot him. I just panicked. There was nobody else there that I could see. I ran down to the end of the industrial estate to the high wall. I couldn’t carry the gun over the wall so I hid it under that metal thing where I pointed it out to you today. I then went over the wall and into Coolock. I was wandering around Coolock for a while.
Having detailed his hospitalisation he said at the end of his statement that he never intended shooting the deceased. He said that he was sorry and wished that it had never happened. He said: ‘I didn’t mean to shoot him, just to warn him off.’
In an interview held with the accused and Detective Inspector O’Brien and Detective Garda Palmer the next day the following dialogue took place. This was reproduced in a memo which was put in evidence.
What happened 10 to 15 yards before the shooting?
He turned around and said, ‘I am going to fucking kill you’. He was walking towards me when he was saying this.
Where was the gun at this stage?
I had it by my side pointing straight down. He kept coming so I brought the gun in front of me but it was pointing down to the ground.
When you brought the gun in front of you what did he do?
He ran at me.
What distance was he in front of you when you fired the shot?
He was about 3 yards in front of me when I raised the gun and fired the shot.
Before he fell to the ground can you say how far he was from you?
He was a couple of feet.
Did he handle the gun or yourself?
No.
In subsequent statements made over the next two days the accused corrected certain aspects of his original statement, especially in relation to who had accompanied him when he and the deceased confronted each other. It appears clear that he was accompanied by his brother Tommy whom he had supplied with a machete and in fact his father also accompanied him on the final mission that led to the tragedy. It is possible, though not certain, that his father may have had a pick-axe handle with him.
At all stages the accused repeated that the essential description that he had given of the circumstances in which he came to shoot the deceased was the truth.
Course of trial
The accused did not give evidence at his trial. His counsel took the stance in his address to the jury that the accused should be acquitted; a verdict of manslaughter was not canvassed on his behalf.
Possible verdicts
Nonetheless, it will be clear that the three possibilities open to the jury in this case were to return a verdict of murder; to hold that the defence of self-defence should prevail leading to a not guilty verdict or to hold that there had been excessive force used in the sense referred to in People (Attorney General) v. Dwyer [1972] IR 416 leading to a verdict of manslaughter.
Grounds of appeal
Ten grounds of appeal were set forth in the notice of appeal but it is necessary to deal with two of them only, viz.
(i) The learned trial judge, it is said, erred in law and in his summation of the evidence in effectively directing the jury that an acquittal of the accused, based on his defence of self-defence, was, to use his Lordship’s phrase, ‘a theoretical possibility’.
(ii) The learned trial judge misdirected the jury in relation to the statements made by the accused man to the police and unfairly contrasted the admissions tendered against him and the exculpatory portions of those statements with sworn evidence in such a manner as effectively to subvert completely the right of the accused not to give evidence at the trial and effectively directed the jury to devalue the evidence of statements made by the accused while in garda custody.
With regard to the defence of self-defence
The correct statement of the law on this topic is to be found in the decision of the Supreme Court in People (Attorney General) v. Quinn [1965] IR 366 at p. 382. Walsh J, speaking for the court, said:
When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit. Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to ‘establishing’ the defence ‘in such a way as to raise a doubt’. No defence has to be ‘established’ in any case apart from insanity. In a case where there is evidence, whether it be disclosed in the prosecution case or in the defence case, which is sufficient to leave the issue of self-defence to the jury the only question the jury has to consider is whether they are satisfied beyond reasonable doubt that the accused killed the deceased (if it be a case of homicide) and whether the jury is satisfied beyond reasonable doubt that the prosecution has negatived the issue of self-defence. If the jury is not satisfied beyond reasonable doubt on both of these matters the accused must be acquitted.
Walsh J returned to this topic in People (Attorney General) v. Dwyer [1972] IR 416 at p. 420:
A homicide is not unlawful if it is committed in the execution or advancement of justice, or in reasonable self-defence of person or property, or in order to prevent the commission of an atrocious crime, or by misadventure. In the case of such self-defence, the homicide is justifiable and is therefore not unlawful. In such a case, where the evidence in the trial discloses a possible defence of self-defence, the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged: see the decision of this Court in People (Attorney General) v. Quinn [1965] IR 366. If the prosecution has not satisfied the jury beyond reasonable doubt that the accused had not believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection, the accused must be acquitted of any charge of unlawful homicide. To put it another way, but without suggesting that there is any reduction in the burden of proof on the prosecution, the homicide is not unlawful if the accused believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection. In such a case he is entitled to a complete acquittal. At one time it was thought that the person attacked was required to retreat so far as he could before resorting to force; this point is considered in R. v. McInnes [1971] 1 WLR 1600 where Edmund Davies LJ, delivering the judgment of the criminal division of the English Court of Appeal, said at p. 1607 of the report that this was too inflexible ‘and might, in certain circumstances, be regarded as significantly misleading’. He preferred the view expressed by the High Court of Australia in R. v. Howe (1958) 100 CLR 448 that a failure to retreat is only an element in the considerations on which the reasonableness of an accused’s conduct is to be judged, and he quoted with approval the statement of the position put in Smith and Hogan’s Criminal Law (2nd ed. at p. 231) that it was ‘simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable’.
He went on to recount, as far as the circumstances of that case were concerned, that where self-defence fails as a ground for acquittal because the force used by the accused went beyond that which was reasonable in the light of the circumstances but was no more than the accused honestly believed to be necessary in the circumstances, he is guilty of manslaughter and not of murder.
In the course of delivering the opinion of the Privy Council in Palmer v. R. (1971) 55 Cr App R 223 Lord Morris of Borth-y-Gest, in a passage which sets out the parameters of how a jury should approach this question of self-defence, said (at pp. 242–243):
It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the concept of necessary self-defence. If there has been no attack, then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken …. But their Lordships consider … that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this, then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected.
In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.
There is no doubt that at the outset of his charge the learned trial judge gave an impeccable direction to the jury as to the three options open to them: to convict of murder; to acquit completely or to find the accused guilty of manslaughter. In regard to the latter possibility, he dealt fully with what might be termed the Dwyer case manslaughter option.
However, in the course of his analysis of the evidence he commented on what he called the ‘obligation to retreat’ — which ‘obligation’ has now, of course, been modified in the manner described in the passage already quoted from the Dwyer case. He made the point that the guards should have been called after the first attack and after Glen Larkin had come back for the second episode at the Camelot Hotel that once again an attempt should have been made to contact the guards. He pointed out that instead of that the accused went from the Camelot Hotel to his father’s house and there armed himself with a gun and armed his brother Tommy with a machete and that the three then set out, thus armed, and he said that as a matter of law that did not appear at all consonant with the obligation to withdraw from conflict and to retreat from danger of assault rather than using force and violence to propel it. The judge also said that they did not set out to defend the dwelling house that was meant to be subjected to an attack by Larkin and appeared to set out to confront the assailant.
Whether these comments went outside the limits of a trial judge’s entitlement to comment on the facts of a case does not require to be resolved in this case because a more fundamental defect occurred in his charge. Unfortunately, having made these comments, the learned trial judge then said the following:
While the verdict is open to you, ladies and gentlemen, and you could in theory acquit him of all responsibility, as I say it appears to me that the facts, even as described in the statement of the accused, hardly admit of the possibility of an acquittal, because there was ample time to avoid the confrontation. There was ample time to notify the guards. You are not entitled to go and get a lethal weapon and go in search of somebody to protect even yourself and your family if there are other means available to you which you should make use of. And we have been given no suggested explanation why it was not possible to invoke the power of the law on that occasion.
The court is of opinion that this part of the charge set at nought the previous impeccable part of the charge on the correct approach to the defence of self-defence. To say to a jury that something is only theoretically possible is in effect to invite them not to consider it at all; whereas it was accepted by the judge at the outset of his charge and was accepted by counsel for the prosecution at the trial and before this Court that the defence of self-defence had been raised to the extent necessary for consideration by a jury. Once raised, a charge along the lines described in the Quinn case was required. In the extract quoted, the judge went beyond commenting on the particular facts of the case; his direction was bound to be taken by the jury as a direction on a matter of law and that really amounted to a direction to them not to consider in any realistic way the defence of self-defence.
We think this ground of appeal has been made out.
As regards the weight to be attached to statements by accused
The learned trial judge dealt with this matter as follows:
Then turning to the statement made by the accused man himself or the statements I should say. Something the jury may not be conscious of but I have to draw your attention to it is this. A statement made to the guards is not in the same category as evidence in the case. Evidence in a case is somebody getting into the witness box, taking the oath, giving his evidence orally and allowing the jury to assess his evidence as he gives it, listen to a cross-examination if there is one and see whether a person is shaken in any way in his evidence … a statement made to the guards is not at all in the same category as a statement made on oath subject to cross-examination, subject to the jury assessing what they think of the witness and whether they are convinced by his evidence or not. I say that because at some stages in his closing address to the jury Mr McDowell spoke to you about the statement as though it were evidence. It is only evidence of what the accused man said to the guards the day after.
The judge then went on to point out that an accused had no obligation to give evidence and he then went on to point to the corrections that the accused had made to his original statement in particular as regards who had accompanied him on the last fatal mission and so forth. The sole point for resolution in dealing with this ground of appeal is the direction that should be given to a jury in relation to a statement made by an accused which contains incriminatory as well as exculpatory matter.
On being requisitioned to recall the jury on this point, the following dialogue may be noted between counsel and judge.
Mr McDowell: My lord, in my submission it is a self-evident proposition, that if something is said in a statement to the police and tendered as part of the evidence in the case it is either admissible or it is not admissible, my lord. That is the first thing. And if it is admissible ….
Judge: It is admissible as a confession or admission.
Mr McDowell: Yes, my lord. But the totality of the statement must be admitted in evidence or none of it, my lord, save with limited exceptions. And in my submission, my lord, it is not sufficient to say that anything that is damnifying as far as the accused is concerned is admissible as evidence against him but anything that is self-serving belongs to a wholly different category and can be disregarded or put into a wholly different category from sworn evidence itself. That is effectively what your lordship told the jury.
Judge: Yes. And you disagree with that?
Mr McDowell: I fundamentally disagree with that proposition, my lord.
Mr McDowell went on to elaborate his grounds of objection which he repeated before us.
The law on this topic was reviewed extensively in the decision of the Court of Criminal Appeal in People (Attorney General) v. Crosbie (1961) 1 Frewen 231 (31 July 1961). The court comprised Maguire CJ, McLoughlin and Teevan JJ. The judgment in the case was given by Teevan J.
The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a statement is put in evidence, as in this case by the prosecution, it then and thereby becomes evidence in the real sense of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence, but they should be told to receive, weigh and consider them as evidence.
It appears that the learned trial judge’s approach was to draw a distinction between the incriminating parts and the exculpatory parts of the original statement. For some time this approach held sway in England but it appears now that it no longer prevails: see the judgment of the Court of Appeal, criminal division in R. v. Duncan (1981) 73 Cr App R 359. The court, in the course of its judgment, at p. 365, said as follows:
Where a ‘mixed’ statement [meaning thereby one that contains incriminatory as well as exculpatory matter] is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.
This has been affirmed as a correct statement of the law in England by the House of Lords in R. v. Sharp (1987) 86 Cr App R 274.
With reference to the present case, while the judge was entitled to comment unfavourably on certain changes that had been made in regard to the accused’s original statement there was an obligation on him when dealing with the statement to remind the jury that the accused had raised the defence of self-defence fairly and squarely in the course of his first statement and that they thus had to consider that defence. It would have been appropriate, too, to point out that that statement was made at a very early stage before the accused had got any legal advice and was made spontaneously to the gardaí. It was necessary to remind the jury that the accused had never departed from the essential stance that he had taken as regards why he shot the deceased. The jury might have believed that explanation or disbelieved it and, either way, might still have held against the accused. But his explanation should have been laid before the jury as part of the evidence in the trial. Then they could accept it as true or reject it as false and resolve the issue of guilt or innocence having regard to the onus of proof that rested on the prosecution.
The court is of the opinion that this ground, too, has been made out.
Other grounds
While other grounds were advanced by Mr McDowell as regards the evidence of the witnesses who accompanied the deceased on his final journey and some objection was made as regards the way the judge in his charge to the jury dealt with the state pathologist’s evidence, we do not think it necessary to dwell on them since it is clear that there was a fundamental misdirection on the two grounds already discussed.
Conclusion
The court is accordingly satisfied that the applicant should be given leave to appeal, will treat the application as the appeal, quash the conviction and order a re-trial.
The court will hear the submissions of counsel as to what should be done in relation to the firearms charges.
Note: Having heard submissions the court ordered that the convictions for the firearms offences be quashed and a new trial directed on those charges also.
Representation