Court of Criminal Appeal Case Law
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DPP v. Darragh Small
17th February 2011
Court of Criminal Appeal
Denham, Budd and Hanna JJ
Section 29(2) Courts of Justice Act, 1924, as substituted by Section 22 Criminal Justice Act, 2006 –Supreme Court-Leave to appeal against conviction-Disclosure-Exceptional public importance-Hearsay-Misuse of Drugs Act- Criminal Evidence Act, 1992
Facts:
1. On the 6th November 2009 the applicant was convicted of possession of a controlled drug with a market value of €13,000.00 or more for the purpose of selling or otherwise supplying it to another contrary to Section 15A and Section 27 Misuse of Drugs Act, 1977 as amended, and the Misuse of Drugs Regulations, 1988 and 1993.
2. Leave to appeal was refused by the Court of Criminal Appeal and the applicant applied to the Court for a certificate certifying that the applicants leave to appeal his conviction involved a point of law of exceptional public importance and that it was in the publics interest and desirable in the interest of justice, that the applicant be allowed to appeal to the Supreme Court. On the 6th July 2010 the Court of Criminal Appeal in a (ex tempore judgment) refused to certify that matter to the Supreme Court. The Court delivered its judgment in full on the 17th February 2011.
3. On the 2nd December 2005, at Bow Lane West, Kilmainham, Dublin 8, the applicant was seen by three members of An Garda Siochana, walking from the rear of a white van parked in the area. He was observed by the Gardaí throwing the key onto the footpath. When Gardaí tried the key in the door of the van it opened it, and the Gardaí found two rolls of tape inside which looked similar to the tape used on the drugs that the applicant had dropped. This key also operated the ignition of the vehicle.
4. During the course of the trial Counsel for the applicant became aware that on or about December 2008 three members of An Garda Siochana went to Mitsubshi Ireland to have the key examined. The Gardaí spoke to Mr. Nick Halligan of Mitsubshi who informed them that Mitsubshi did not make the type of key in question. This information was not disclosed to the defense until the second day of the trial in November 2009. It became apparent the Mr. Halligan would not be in a position to attend Court to give oral evidence, and it was at this point that Counsel for the applicant sought an adjournment of the trial or an order discharging the jury because of the unavailability of Mr. Halligan to give oral evidence. The trial Judge refused this application and the trial proceeded.
5. The trial Judge was of the view that the real issue in the case was not whether the key was a Mitsubshi or a Renault key, but whether the key started the van or not. Detective Sergeant O’ Halloran gave evidence that the key opened the door and operated the ignition.
“But the issue in this case isn’t whether it was a Mitsubishi key or a Renault key, the issue is whether that key started the van or not; all right? So, whatever … whether it is a Mitsubishi key or a Renault key is not of importance. The key … the fact is that Garda O’Halloran said that that key opened the door and started the van. Now, whether the prosecution should have put it … reduced it in writing and given it to the defence, whatever their information was from Mitsubishi Ireland, apparently they did so in one trial and its unclear whether that was given to the defence or not, but that’s the issue in the case.”
6. On the 4th November 2009, the learned trial Judge adjourned the trial to allow a statement be obtained from Mr. Halligan.
7. On the 5th November 2009, counsel for the applicant read a statement from Mr. Halligan to the jury dealing with the visit by the Gardaí. The learned trial Judge also read the statement to the jury in the course of her charge.
Proceedings in the Lower Court.
The applicant was convicted in the Circuit Criminal Court for an offence of possession of a controlled drug with a market value of €13,000.00 or more for the purpose of selling or otherwise supplying it to another contrary to Section 15A and Section 27 Misuse of Drugs Act, 1977 as amended, and the Misuse of Drugs Regulations, 1988 and 1993.
Arguments of Counsel;
Counsel for the applicant submitted that a point of law arose in this case under the Court of Criminal Appeal decision in DPP v. McKevit [2009] 1 I.R 525, in that it is a legally permissible and appropriate test to be applied in cases involving patently unfair procedures as distinct from cases involving an alleged risk of unfairness arising by reason of the non-disclosure to the defence of specified material. It was submitted by Counsel for the applicant that the late disclosure to the defence regarding the visit by Gardaí were such that entitle the applicant to have Mr. Halligan called as witness and cross-examined in the presence of the jury and the failure of the learned trial Judge in refusing to discharge the jury was in error. The failure of the Gardaí to disclose in adequate time the details of a meeting between the Gardaí and Mr. Halligan should not set aside the applicants right to call evidence. It was further submitted by Counsel for the applicant that the applicant was entitled to viva voce evidence and that the statement submitted by Mr. Halligan dated the 4th November 2009 was not a contemporaneous record, but was written from memory on the 4th November 2009 and offended against the hearsay rule, and did not meet any of the exceptions provided for in the Criminal Evidence Act, 1992.
Held: Denham, Budd and Hanna JJ,
The Court is satisfied that in all the circumstances this is not a case of “patently unfair procedures” for the following reasons;
1. This was a third trial;
2. Through no mala fides on the part of the prosecution, the defence did not learn of the visit of Gardaí to Mitsubishi about the key until the trial had commenced;
3. The issue of Mr. Halligan’s evidence arose, and it transpired, through no one’s fault, that Mr. Halligan would not be available to give oral evidence during the trial;
4. The learned trial judge analysed the evidence in issue and its relevance to the case and decided not to discharge the jury;
5. The nature of the evidence and its relevance was expressly addressed by the learned trial judge. As the evidence was that of a witness to be called by the defence there would be no question of the defence cross examining the witness – the issue was that counsel for the applicant sought the evidence to be given orally;
6. Having refused applications to discharge the jury, the learned trial judge adjourned over night so that Mr. Halligan could write a letter as a statement of his evidence for the trial court. This was read to the court by counsel for the defence. This facilitated the defence;
7. The evidence in the letter supported the evidence of the defence witness Mr. Murray;
8. The evidence was given in circumstances where the key was not a vital matter of evidence; nor could the key be tried in the white van, either in the door or the ignition, as the absence of the van was a consequence of the consent of the applicant and his counsel to the destruction of the van prior to the first trial;
9. (The Court has noted carefully counsel for the applicant’s repeated requests for a discharge of the jury in the matter;
10. The Court accepts that counsel for the applicant’s first choice was for oral evidence from Mr. Halligan and that it was only on the refusal to discharge the jury, that counsel for the applicant took steps to present the applicant’s case by arranging for the letter from Mr. Halligan and reading it to the court. This was an appropriate professional approach of counsel in the circumstances;
11. The Court is satisfied that this process, in all the circumstances and on the facts of the case, was not a patently unfair procedure;
12. The learned trial judge managed the trial in a fair manner in all the circumstances of the case. The factual situation and all the circumstances were such that it was within the discretion of the learned trial judge to refuse to discharge the jury. The admission of the letter from Mr. Halligan in the circumstances was not an unfair procedure arising as a consequence of that decision. Rather, in the circumstances, it represented a pragmatic and proper logistical approach of fairness and practicality.
The court refused the application for a certificate certifying the matter to the Supreme Court.
Significance of the Case
This case reinforces the high threshold established by the Court of Criminal Appeal in DPP v. McKevit [2009] 1 I.R 525 and proceeding case law providing for the certification of a case to the Supreme Court on a point of law of exceptional public importance.
Reporter Dónall Johnston BL
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October 2010
D.P.P. v Derek Wade
[2010] IECCA 114
Court of Criminal Appeal, Macken J., Budd J., Herbert J.
Judgment delivered by Macken J. 28th October 2010
Use of Fingerprints – Rules of Evidence and Investigation of Crime – Statutory Instruments governing taking of Fingerprints – Grounds for Forming a Reasonable Suspicion
Facts:
An arrest warrant in respect of the the applicant was grounded on the evidence of fingerprints recovered at the scene of the murder of which he was subsequently convicted. These fingerprints matched a set of fingerprints which had been obtained from the applicant’s prison records.
Arguments of Counsel:
Counsel for the applicant argued that the retention and subsequent use of the fingerprint evidence by Gardai was in breach of the applicant’s constitutional rights to bodily integrity and privacy. Further, that the statutory instruments under which the prison obtained the applicant’s fingerprints originally were ultra vires the parent Act. No regulations existed for the prison authorities to transmit such information to Gardai and the applicant’s constitutional right to privacy was breached by the transmission of the information. As a result, the ensuing arrest warrant was illegally obtained and the arrest and detention of the applicant were unconstitutional.
Counsel for the respondent argued that section 19(8) of the Criminal Justice (Miscellaneous Provisions) Act 1997 authorised the making of a statutory instrument permitting prison authorities to take the fingerprints of a convicted person while detained in prison. Further, that that rules of evidence are not to be transposed into the investigative stage of the criminal process.
Held:
- Section 19(8) of the Criminal Justice (Miscellaneous Provisions) Act 1997 has regularised the previous position concerning the Prison Rules 1947 and the Prison Regulations 1955. In particular, the Act deems the taking of fingerprints to have been done according to this provision and thus to have a proper legal basis. The taking of and retention of these fingerprints was thus lawful.
- The legislature has expressly authorised the prison authorities to furnish copies of fingerprints to an Garda Siochana under Section 19(4) of the 1997 Act. This also authorizes Gardai to receive, hold and use these fingerprints. This has subsequently been amended by the Prisons Act 2007.
- For the purposes of establishing a “reasonable suspicion” to ground information for an arrest warrant, it is not necessary that the material relied upon be admissible as evidence at trial. The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts. DPP v Cash [2010] IESC 1 (Unreported, Supreme Court 18th January 2010) followed.
Significance of the Case
The judgment supports the position that the acts of taking and retaining of fingerprints and their subsequent transmission from prison authorities to Gardai is legally permissible. The Act of 1997 effectively recognizes the position of the de facto rules previously in force. Even if it were not the case that the fingerprints had been obtained lawfully, the fact that they were only used to support a reasonable suspicion to ground an arrest warrant would not mean that the arrest warrant was invalid. Evidence which informs a reasonable suspicion need not reach the high standards required by the rules of evidence in court proceedings.
Reporter: Ronan Guckian B.L.
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November 2010
Catherine Nevin v. The People (at the suit of the Director of Public Prosecutions)
[2010] IECCA 106,
Court of Criminal Appeal, 22nd November 2010-Hardiman J., McKechnie J., Birmingham J.,
The applicant was tried and convicted by a jury in April 2000 for the offences of the murder of her husband, and one count each of soliciting three persons to murder her husband, Thomas Nevin. The applicant unsuccessfully appealed her convictions. The applicant subsequently applied to the Court of Criminal Appeal to quash the convictions on the grounds that the conviction was unsafe owing to new or newly discovered facts contained in Special Branch files. Held by the Court of Criminal Appeal (Hardiman J., McKechnie J., Birmingham J.), in dismissing the application to appeal the convictions,
1, that pursuant to Section 2 of the Criminal Procedure Act 1993, it need only be shown that there may have been a miscarriage of justice as a result of the newly discovered fact and that the newly discovered information might have raised a reasonable doubt in the minds of the jury. 2. That a failure to disclose information must be shown to have had important as distinct from technical or trivial consequences if a conviction is to be regarded as unsafe. The actual course pursued by the defence at the trial cannot determine the significance or triviality of an undisclosed fact. The People (Director of Public Prosecutions) v Meleady & Grogan [1995] 2 IR 517, The People (Director of Public Prosecutions) v Gannon [1997] 1 IR 40 and The People (Director of Public Prosecutions) v McCarthy & Others [2008] 3 IR 1 followed; 3. that the newly discovered facts in this case went only to the credibility of a witness and not directly to the question of who killed Thomas Nevin or who arranged to have him killed. Having regard to the nature and purpose of the rule against ‘collateral’ questions, the new facts discovered in this case were irrelevant and the material discovered in this case was simply too remote to meet the criteria for significant newly discovered facts; 4. that the documents produced in this case were of no evidential effect and proved nothing. It would be contrary to the public interest and would hinder police investigations, if documents compiled in the course of investigations were required to be freely disclosed. The printed forms in this case give rise to no reasonable possibility that there might have been a miscarriage of justice in this case nor, having regard to the totality of the evidence in this case, could they be regarded as being such as might have raised a reasonable doubt in the minds of the jury.
Reporter: Ronan Guckian BL
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Gary Hanley v D.P.P.
[2010] IECCA 101
Court of Criminal Appeal, Fennelly J., deValera J., Edwards J., 27th October 2010
Judgment delivered by Fennelly J.
Criminal Law – Trial Procedure – Rules of Evidence – Treatment of Hostile Witnesses – Admission of Prior Statements – Criminal Justice Act 2006 (No. 26) s. 16 – Whether both Section 16 and application for treatment of a witness as hostile may be made simultaneously – Duty to Disclose Material Evidence – Refusal of Requisitions – Burden of Proof – Jury Irregularities – Minimum period before return of majority verdict
Facts:
The applicant was convicted of the offence of assault causing harm under section 3 of the Non-Fatal Offences against the Person Act 1997 and of threats to kill or cause serious harm contrary to section 5 of that Act. The injured party was stabbed by the applicant with a set of keys and he threatened to kill her. Subsequently the injured party sought to withdraw her complaint against the applicant and sought to retract her statement. When she refused to attend court as a witness she was arrested and then gave evidence that the applicant in court was not the individual who had attacked her. The prosecution subsequently sought and were granted permission by the trial judge to treat the injured party as a hostile witness and to have the injured party’s statement admitted in evidence under section 16 of the Criminal Justice Act 2006.
Arguments of Counsel:
1. That the prosecution went beyond the ruling of the trial judge in the manner of its cross-examination of the principal prosecution witness who had been declared a hostile witness. The defence maintained that the only purpose of treating a witness as hostile was to discredit his or her evidence by showing that he or she had made a previous inconsistent statement. The defence argued that to allow the prosecution to go further in cross-examination would be contrary to well established authority and would prejudice the applicant. Furthermore, in the course of the trial, the defence had resisted the application made by the prosecution to admit the previous statement made by the witness pursuant to the provisions of Section 16 of the Criminal Justice Act 2006. The defence had argued that the prosecution could not adduce the statement and also have the opportunity to cross-examine their own witness as a hostile witness. The trial judge ruled that the statement was admissible under Section 16 and also allowed the prosecution to cross-examine the witness as a hostile witness.
2. That the prosecution failed to disclose all material evidence to the defence; in particular a photograph of an alternative suspect. The prosecution in the course of the trial disclosed material from the Garda Pulse system to the defence about the other suspect but claimed privilege over a section regarding profiling techniques. This included a photograph of the alternative suspect. The trial judge refused an application to have the photograph disclosed after the prosecution case had closed. The applicant contended that this refusal to disclose the photograph was a breach of the prosecution’s fundamental duty to disclose any relevant material to the defence.
3. That the trial judge failed to accede to a number of requisitions concerning his charge to the jury. In particular counsel submitted that the trial judge’s direction to the jury regarding the burden of proof and the benefit of the doubt was inadequate.
4. That there were irregularities in the manner in which the jury reached its verdict. The applicant contended that the presence of members of the jury outside the jury room during the course of deliberations constituted a disruption of the jury deliberations and further affected the minimum time period which must elapse before a judge may direct that a majority verdict can be received.
Held:
- That there exists both a statutory and common law power to allow a party to treat its own witness as hostile and to elicit evidence by cross-examination of that witness. As the cross-examination in this case was used to demonstrate inconsistencies between the prior statement of the witness and the evidence given by the witness in court, this was a legitimate use of the hostile-witness procedure. It is also a permissible and obvious objective of the prosecution to persuade the witness to recant and adopt the truth of their previous statement. Apart from the procedure under Section 16 of the Criminal Justice Act 2006, a prior statement is not evidence of its contents. However, a witness may be invited to stand by his or her original statement. The object of the cross-examination in this case was to secure the agreement of the witness with her original statement and to demonstrate inconsistencies between her statement and the evidence she gave in court. The People (Attorney General) v Taylor [1974] IR 97 distinguished. R v Thompson (1976) Cr. Appellants Rep 96 and O’Flynn v Smithwick [1993] 3 IR 589 followed.
- That the defence had failed to show that the photograph could have had any material bearing on the proceedings or that the failure to provide it could have prejudiced the applicant’s defence in any way. The court agreed with the prosecution that prior to trial there was no basis upon which the prosecution could have foreseen the relevance of the photograph. McKevitt v Director of Public Prosecutions, Unreported Judgment, Supreme Court, 18th March 2003 considered.
- That there is no tension or contradiction between the respective dicta of Kenny J. in The People (Attorney General) v Byrne [1974] I.R. 1 and Hardiman J. in The People (at the suit of the Director of Public Prosecutions) v Cronin [2003] 3 I.R. 377. Kenny J. is unequivocal in his direction that the jury is required to give the benefit of the doubt to the accused whenever two views on any part of a case are reasonably possible. Hardiman J. emphasised that the judgment of Kenny J. is an essential part of the charge to the jury and that in this case, the court is satisfied such a direction had been adequately provided.
- That there was no material irregularity in the deliberations of the jury nor did the cigarette breaks provided interfere with the minimum time period required to elapse before a majority verdict can be received. It is neither possible nor desirable to monitor the behaviour of the jury in the jury room. No irregularity arises where jury members take a break, while remaining under the supervision of their guardian and the trial judge has permitted the break. However, Section 25 of the Juries Act 1976 as amended by Section 58 of the Civil Law (Miscellaneous Provisions) Act, 2008 requires some minimal level of formality. Jury members should be informed of their general obligation to remain together when deliberating and the requirement to formally ask for permission from the judge for a break. Any directions given under section 25 of the Juries Act 1976 should be recorded.
Significance of the Case
The major feature of this case is that it is acceptable to adopt both the hostile witness procedure and section 16 of the Criminal Justice Act 2006 simultaneously. Effectively, the witness may be asked to explain the discrepancy between their original statement which they provided and their oral evidence in court. Along side this common law and statutory power, it is permissible to then apply to the court to admit the original statement under section 16. Thus the hostile witness procedure and section 16 are not mutually exclusive. The case is also significant in that it lays down the circumstances in which the hostile witness procedure may be legitimately used.
Reporter: Ronan Guckian BL
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