Director of Public Prosecutions -v- McCarthy [2015] IECA 150 (13 July 2015)

Judgment

Title:	Director of Public Prosecutions -v- McCarthy
Neutral Citation:	[2015] IECA 150
Court of Appeal Record Number:	222/12
Date of Delivery:	13/07/2015
Court:	Court of Appeal
Composition of Court:	Finlay Geoghegan J., Peart J., Mahon J.
Judgment by:	Mahon J.
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 150

Appeal No. 222/12

Finlay Geoghegan J.
Peart J.
Mahon J.

Director of Public Prosecutions

Respondent

And

John McCarthy

Appellant

Judgment of the Court delivered by Mr. Justice Alan Mahon on 13th day of July 2015

Introduction
1. On 22nd May 2012 the appellant was convicted at Limerick Circuit Criminal Court of possession of a controlled drug, to wit, diamorphine, contrary to s. 15 of the Misuse of Drugs Act 1977, and possession of a controlled drug, to wit, diamorphine, the market value of which amounted to €13,000 or more contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) of the Misuse of Drugs 1977. The date of the offences was 15th October 2010. Concurrent prison sentences of fourteen years were imposed in respect of each offence. The jury verdicts of guilty in respect of both offences were unanimous and followed an eight day trial. Prior to the commencement of the trial, a separate jury had been empanelled to try the appellant, but was discharged for reasons unconnected to this appeal. The appellant has appealed both against convictions and his sentence. This judgment relates only to the former.

2. The appeal against the convictions was brought on a number of grounds. However at the commencement of the hearing of the appeal, this court was advised by counsel for the appellant that just three grounds of appeal were being pursued.

The first ground of appeal
3. This ground of appeal relates to garda telephone records. It is contended that the learned trial judge erred in law and in fact in, having ordered the disclosure of relevant of garda phone records to the defence, subsequently failed to properly enforce the said order.

4. The order is dated 1st February 2012, and it directed as follows:-

(i) that pursuant to S. 5 of the Communications (Retention of Data) Act 2011, the relevant service providers (as defined in the said act disclose to the Chief Superintendent of An Garda Síochána at Henry Street garda station, Limerick, the mobile telephone records in respect of the period from 11 a.m. to 11.30 p.m. of 15th October 2010 in respect of the following members of an garda siochaná namely:-

(a) Gda. Viv Downey

(b) Gda. Mark McGauley

(c) Det. Sgt. Ronan McDonagh

(d) Gda. Kevin Mulryan

(e) Det. Insp. James Ryan

(f) Sgt. Arthur Ryan

(ii) that the said order be furnished to the said service providers by the said Chief Superintendent of An Garda Síochána and that the identity of the relevant telephone numbers be furnished to the said service providers by an accompanying letter or letters from the said Chief Superintendent of An Garda Síochána upon terms that the contents of any such letter or letters be kept confidential and not be disclosed to any other parties save and except the Director of Public Prosecutions.

(iii) that any text messages or images relevant to the said proceedings to be found on the telephones of the aforesaid persons in respect of the said time, be disclosed to the accused.

(iv) that the Director of Public Prosecutions shall disclose to the accused the telephone records, the subject matter of para. 1.

(v) that the said orders are subject to the right of any parties to withhold any documents on the grounds of privilege or confidentiality subject to the determination of this honourable court.

(vi) that any information disclosed to the accused on foot of this order shall be retained in the possession of the legal advisors of the accused and shall be used solely in connection with the conduct of these proceedings.

(vii) there be liberty to apply further by any party affected by the terms of this order.

5. The application for this order was made by Counsel on behalf of the appellant on 18th January 2012. On that date, counsel for the appellant informed the learned trial judge that “the prosecution are alleging that our client was there at a certain time and our client will be denying that. So, on that basis, we are saying that the time they actually rang their commanding officer would be crucial”. Later, in the course of the application, Counsel for the appellant stated “We are just looking for the phone records of the mobile phones of the gardaí and their commanding officer that day so as to determine what times those phone calls were actually made” and “...our contention is that simple, you know, records showing what time the gardaí dialled a certain number”. There was therefore no ambiguity as to the basis on which the telephone information was being sought, or the context in which it was being sought.

6. In purported compliance with the said order of the court, a list of details from original telephone records were submitted to the learned trial judge. He considered the content of this document and ruled as follows:-

“..I have looked at this document, the mobile phone printout that was handed into me yesterday and I have also looked at the abstracts, if you can call it that, of the details. Now, it seems to me that this is covered by privilege in the manner that the matters had been omitted because they are ... the phone numbers of the particular gardaí and what are called other matters which are known as number or equipment identifiers, and I think they are subject to privilege. But the matters that are included are the germaine matters, germaine the times the calls were made, between whom they were made and the lengths of the calls..”

7. The learned trial judge noted what he understood was an error in relation to one entry. He requested that this be checked and it duly was. An application was then made by Counsel for the appellant to have the information provided checked by an expert. Counsel for the appellant applied to the court on 8th May 2012 (Day 1 of the trial) in the following terms:

“And I would respectfully request the court to stay these proceedings due to the failure as regards calling witnesses to comply with an order made by this court on 1st February of this year. There has been no compliance of that order at all, my lord, and indeed with the terms of the order; and secondly, as a result of that failure, the inability of the Director’s office to provide relevant and lawful material or evidence which is likely to be of material assistance to the defence in the conduct of the case. Now, I have looked at what we have been shown and it is grossly inadequate. It does not identify the length of the call, whether the call was a phone call or a text call..”

The application for a stay was refused.

8. In the appellant’s written submissions to this court it is stated:-

“All the defence were seeking was the disclosure of the original phone records containing the times of the phone calls for examination by an expert. The original phone records showing the times the phone calls were made and with the garda’s phone numbers redacted could easily have been disclosed to the defence.”

9. The basis of the appellant’s ground of appeal in relation to the phone records is that the learned trial judge “having ordered the disclosure of relevant garda phone records to the defence, subsequently failing to properly enforce said order for disclosure”. However, the times of phone calls as disclosed in the records were disclosed. They were considered by the learned trial judge who made the decision that certain additional information relating to such phone calls therein was privileged, in the interest of garda security. The contention that the learned trial judge was in error in failing to provide the documentation (as originally provided) to an “expert” is misconceived, as there was no such provision in the order of 1st February 2012.

10. The court is therefore satisfied that this ground of appeal should not be allowed. The court is satisfied that the order of the learned trial judge of 1st February 2012 was, in general, complied with fully, and that insofar as certain information relating to phone records was withheld from the appellant on the basis of privilege, such was permissible and was not unfair to the appellant.

The second ground of appeal
11. This ground of appeal arises from, as contended by the appellant, the lack of sufficient warning to the jury concerning contact with persons who were not members of the jury, and their possible use of the internet to search for information relating to the trial or the appellant, (it was not suggested that any juror had utilised the internet for such purposes). More specifically it is contended that:

(i) the learned trial judge erred in law and in fact in failing, at the commencement of the trial, to direct the jury not to discuss the case with anyone outside the jury room; and

(ii) the learned trial judge erred in law and in fact in failing, at the commencement of the trial, to direct the jury not to search the internet for information on the trial, and not to search the internet for information on the appellant.

12. It was contended on behalf of the appellant that very careful warnings should have been given by the judge to the jury, not to access the internet or other social media sites to access information relating to the trial or the appellant, not to discuss anything relating to the trial with anyone outside the jury room, not allow themselves be approached by anyone relating to the case, and to heed advice to decide the case only on the evidence they would hear in the course of the trial. The learned trial judge was criticised for failing to provide a sufficiently clear warning at the outset of the trial in relation to these matters, and at the conclusion of the evidence on each day of the trial.

What was said to the jury?
13. On the first day of the trial, 9th May 2012 (Day 1), and prior to any evidence being heard by the jury, the learned trial judge addressed the jury in the following terms:-

“It is very important during this recess, or any break, whether it is for lunch, overnight or whatever, that you do not talk to anybody about the case except amongst yourselves. And the reason for this rule is that you will decide the issue in the case, and the issue is whether the accused is guilty or not guilty. Nobody else is going to decide it, and therefore it would be not right for you to be put in a position whereby you might be influenced by somebody who is not on the jury. So that is the reason for the rule. Once the case is over you can talk to anybody about anything to do with the case. You are completely at large to mention anything to do with the case once it is over, but only after that point, only after it is over.”

14. In the course of his opening speech to the jury, Mr. O’Sullivan, B.L., (for the prosecution) stated:-

“...you’ll try the case only on the evidence which you hear in court and on that alone.”

15. On the third day of the trial, 11th May 2012, the learned trial judge again warned the jury about talking to anyone about the trial until after its conclusion. He did so in circumstances where the jury had been sent home on a Friday afternoon with instructions to re-convene on the following Wednesday.

“You can’t talk to anybody about the case until it is over, very good.....”

16. On the seventh day of the trial, following the conclusion of the closing speech by counsel for the appellant, Mr. McCartney, S.C., and immediately before the jury were sent home overnight, the learned trial judge warned them as follows:-

“So, I am going to say to you not now to discuss the case until you have ... amongst yourselves and not with anybody else, but not to discuss the case amongst yourselves until after you have heard what I have to say.”

17. In the course of his charge to the jury the learned trial judge said the following:-

(Day 8, p. 15)

“Now, the case is considered on the evidence and only on the evidence and a jury cannot speculate about matters which are not the subject matter of the evidence And if you remember, the oath you took when you were empanelled was a true verdict give according to the evidence.”

and

“.. you can’t speculate about any matter which is not the subject matter of that evidence... you have to consider the case within the parameters of the evidence of the witnesses and the exhibits.”

18. No issue was raised at any point in the course of the trial by counsel for the appellant expressing concern as to the lack of, or the extent of, warnings given by the learned trial judge in relation to contact or discussions with non jury members, or accessing information relating to the trial or the appellant from other sources, including the internet.

19. In his submissions to this court counsel for the appellant referred to a number of authorities, including that of R v. Davis [1976] 62 Cr App R 194, and, in particular, to comments of the Lord Chief Justice on p. 201. He also referred to the cases of Stewart v. Sappleton [1989] 89 Cr App R. 273 and R v. Maggs [1990] 91 Cr App R. 243. He submitted that together they established the following as being appropriate and necessary warnings to be given by a trial judge to a jury.

1. That the jury must decide the case on the evidence and the arguments that they have seen and heard in court, and not on anything they may have seen or heard or may see or hear outside the court.

2. That the evidence has been completed and that it would be wrong for any juror to seek for or to receive further evidence or information of any sort about the case.

3. That the jury must not talk to anyone about the case, save to the other members of the jury and then only when they are deliberating in the jury room. They must not allow anyone to talk to them about the case unless that person is a juror and he or she is in the jury room deliberating about the case.

4. When they leave the court they should try to set the case they are trying on one side until they return to court and retire to their jury room to continue the process of deliberating about their verdict or verdicts.

20. It is conceded by counsel for the appellant that it is unnecessary for a trial judge to use any precise form of words once the matters referred to above have been adequately conveyed to the jury. It is also very much part of the submissions made by counsel for the appellant that a trial judge should adequately remind the jury of these warnings at the conclusion of the trial each day until they retire to consider their verdict.

21. In DPP v. Anthony McCarthy and Others [2008] 3I.R. 1 Kearns J. (as he then was) stated, at pp. 29/30/31 the following (albeit, in the context of the issue of media publicity):-

“Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.”

He went on to state:-

“The court is satisfied that the jury system, if it is to survive, can only do so on the assumption that juries will heed warnings given to them by trial judges. Strong and repeated warnings in trenchant terms were given by the trial judge to the jury in this case to ignore everything other than the evidence produced in court. It is not to be supposed that juries treat such warnings lightly.”

22. Kearns J. (as he then was) quoted Blayney J. in D. v. The Director of Public Prosecutions [1994] 2I.R.462, when he stated at p. 472:-

“In a criminal trial the members of the jury are made very aware of the heavy responsibility they have as the judges of the guilty or innocence of the accused. It begins with their individually taking an oath to “well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict to give according to the evidence”.

They are then reminded by the trial judge in his charge at the end of the case that they must decide the case only on the evidence before them; that they must put out of their minds anything they may have heard or read about the case from any other source, and that they must not allow themselves to be swayed by sympathy but decide the case on the facts. What must be borne in mind also is the impact made on the jury by hearing the witnesses in case, by having the evidence at first hand presented to them. Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they read in a newspaper some months before, particularly when to do so would be to disregard their oath and disregard the clear directions given to them by the trial judge?”

23. In the case of The Telegraph plc [1994] 98CR. APP. R. 91, 98 [1993] 1W.L.R. 980, 987, Lord Taylor C.J. stated:-

“A court should credit the jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury’s minds on the evidence put before them rather than on the matters outside the court room.”

24. Juries are robust and, in general terms, have shown themselves to be well capable of understanding straight forward directions couched in ordinary language given by judges in jury trials, and to heed advice to decide on the guilt or innocence of accused persons solely on the basis of the evidence they hear, and the exhibits they see, in court, as well as the demeanour of witnesses in the course of their testimony. It is, of course, necessary, on occasion, for trial judges to explain matters, particularly matters which are complex, in greater detail than might otherwise be sufficient. It is generally a matter for the trial judge as to how he/she addresses a jury, including directing and warning a jury as to the necessity to reach its verdict on evidence heard in court and not on information gleaned elsewhere, and when this is done in plain and ordinary language it is reasonable to assume that a jury is capable of understanding same, and to fully take such directions and warnings on board. There is no strict formula of words required. What is critical is for the trial judge to emphasise to a jury the importance of deciding the case solely on the evidence adduced in the course of the trial, and to avoid seeking or receiving information elsewhere in the course of the trial and/or their deliberations.

25. In this case the jury was, at the outset, clearly directed and warned to avoid discussing the case with anyone other than amongst themselves. They were clearly warned to avoid any situation where they might be influenced by anyone who was not a member of the jury in relation to the case. They were advised not to talk to anyone about anything to do with the case until after the conclusion of the case. The jury was again reminded of this warning at the end of the third day of the trial, and immediately prior to a four day break in the trial. A further warning to this effect was given to them by the learned trial judge on the evening immediately before the day on which the jury retired to consider its verdict. They were expressly told by Counsel for the prosecution in the course of his opening remarks at the commencement of the trial that “...you’ll try the case only on the evidence which you hear in court and on that alone.” Furthermore, they were clearly warned in the course of the learned trial judge’s charge as to the importance of deciding the case solely on the basis of evidence heard in the course of the trial.

26. While no specific warning was given in relation to the use of the Internet or social media sites at any point in the course of the trial, such a warning is not essential in every case. In some cases it may even be undesirable as it could indicate that the defendant was a person in respect of whom there may be relevant information on the internet. Counsel for the appellant did not refer to any authority in this jurisdiction on point. He did refer the Court to the judgment of Judge LJ in the English Court of Appeal (Criminal Division) in R v. Thompson &Ors 9 (6 joined appeals) [2010] EWCA (Crim) 1623, [2010] 2 Cr App R 27 in which he gave guidance at paragraph 12 as follows:

“It is however, apparent, that the use of the internet is so common that some specific guidance must now be given to jurors. We agree with the approach adopted in the current J.S.B. Crown Court Bench Book. Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example on social networking sites) any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decisions, whether consciously or unconsciously, yet at the same time neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court. ..”

27. Until such time as consideration is given on an appropriate appeal (with submissions with a view to the provision of guidelines) to the necessity of specific internet warnings in all trials irrespective of the facts, what is necessary is that the Jury are given the generic warning that they must try the case only on the evidence as was done in this trial. It remains the position in this jurisdiction that whether or not a warning against searching the internet is required depends on the circumstances of each case. No reference was made during the trial to the need for a warning against use of internet or social media and no concern was expressed to the trial judge in this case of the lack of such a specific warning. In the absence of same, this ground is also covered by decision of the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No2) [2006] IESC 9, [2006] 4 IR 329.

28. The court is satisfied that sufficient warnings were given to the jury, both at the outset, during and conclusion of the trial, that it was their obligation to decide verdicts only on evidence and the demeanour of witnesses heard and seen in the course of the trial. This ground of appeal is therefore dismissed.

The third ground of appeal
29. The appellant’s third ground of appeal is that:-:

“. . . the learned trial judge erred in law or in fact or in a mixed question of law and fact in failing to properly direct the jury in relation to the manner in which they should approach and consider garda identification evidence....”

30. The appeal relating to the issue of identification evidence was initially confined to the identification evidence of Garda O’Brien, but at the outset of the hearing before this court, this ground was expanded (with the Respondent’s consent and the court’s leave) to include all garda identification evidence in the case.

31. On the afternoon of 15th October 2010, three men were observed walking through an open field, known as “The Four Walls”. These men were observed by Garda O’Brien, Garda Downey and Garda McGauley. Garda O’Brien said that he recognised the appellant at a distance of approximately twenty metres, and that the appellant then ran away through dense undergrowth. Garda O’Brien said he observed the appellant for a split second. The two other gardaí claimed that they recognised the appellant at distances of forty four and seventy metres respectively.

32. This third ground of appeal is based on what the appellant maintains was a failure on the part of the learned trial judge to adequately and comprehensively charge the jury in relation to the identification evidence of a number of garda witnesses. In particular, it was contended that the learned trial judge failed to sufficiently charge the jury in relation to the possibility of the identification evidence being erroneous because of the fact that it was at a remove of twenty or more metres and was based (in Garda O’Brien’s case) on a split second glance. In the course of the appeal, counsel for the appellant remarked that the learned trial judge’s charge in relation to identification “just falls short of what should have been said” and, (referring to the jury), “they were entitled to that extra bit of assistance”.

33. In the course of his lengthy charge to the jury, the learned trial judge made a number of references to identification evidence. These included the following:-

(Day 8, p. 22)

The case is one of identification and to deal with that firstly, the prosecution says that the identification by Garda Downey and McGauley were in broad day light, across a wide field and with no (obstructions)....they clearly identified the three men, including the accused, who was in the middle of them. The prosecution then says that there was a further identification, independent of that identification, by Garda Barry O’Brien who identified the, who saw Mr. McCarthy and he was only twenty metres away from him. And it is the prosecution case that during these two separate independent identifications and that they were cases of recognition, they were cases of the gardaí recognising somebody they knew as distinct from the identification of a complete stranger, which means that the identifications are much more reliable.

The defence says that Garda O’Brien only saw the man for a split second and the observation was so short that he could not identify any features on the man, or identify any clothes. It is the defence case that there were four other garda officers there when they moved into the Four Walls and the other four did not see Mr. McCarthy.

(Day 8, p. 19)

And what is an issue in this case is identification. This is an identification case. The prosecution case, in my respectful submission to you, succeeds or falls on that issue. Was the identification made by three members of An Garda Siochana reliable? Can you act on them? And I think that is the issue in the case. I do not think anything else really is. But if you think I am wrong about this then act accordingly.

Now, the law on identification is fairly well developed and it is that a jury has to be careful in acting in identification cases, because we know from the history of jury trials and jury verdicts that mistakes are made and have been made on identification. We all have made mistakes ourselves on identification. I am sure it has happened to all of us that something similar to this experience of seeing someone on .. you know on the side of the street, shouting greetings over at our friend, walking across the street, tapping that person on the shoulder only to realise that when that person turns around that it is somebody else, it is a complete stranger. And as I say there have been instances in the history of legal trials where a wrongful identification has been made, the error of it only to be discovered and a person convicted and sentenced only for that mistake to be realised many years later and the wrongful conviction overturned.

Now the law recognises that these mistakes happen and so what it says is that a jury must be careful in assessing. It does not say that a jury disregards identification evidence, it does not say that at all, but what it says is that a jury is careful in assessing the dangers, he is aware of the danger and takes particular care as a result.

(Day 8, pp. 19/20)

In the course of his charge, the learned trial judge quoted from a judgment of the Supreme Court in 1962, (Kingsmill-Moore J.) as follows:-

“We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification, nor of the considerable number of cases in which identification has been proved to be erroneous and also that a jury may be inclined to attribute, in our opinion it is desirable that all cases were the verdict depends substantially on the correctness of an identification that the jury’s attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous to the possibilities of mistaking the case before them and the necessity of caution, nor do we think that such warning should be confined to cases where the identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identification. We consider juries in cases were the correctness of an identification is challenged should be directed on the following lines, namely that if their verdict as to the guilt of the accused is to depend wholly or substantially on the correctness of such identification, they should bear in mind that there have been in a number of instances, where responsible witnesses, whose honesty is not in question and whose opportunities for observation had been adequate, made positive identifications, which identifications were subsequently proved to be erroneous and, accordingly, the jury should be especially cautious before accepting such evidence of identification as being correct but that if any careful examination of such evidence, in the light of all the circumstances, and with due regard to all the other evidence in the case, they feel satisfied beyond reasonable doubt of the correctness of the identification, the jury is at liberty to act upon such evidence of identification. So, that is to say, you have to be aware of the fact that mistakes have been made in the past, that there is a danger with such evidence and to treat it with appropriate caution. But having done that and having regard to all the other circumstances in the case, you are happy that the identification is correct then you can act on it.”

(Day 8 pp. 20/21)

Now, in assessing the identification evidence, you may and you should take into account all the surrounding conditions and just to give a few examples the length of time that the witness had to observe the perpetrator, that is obviously a relevant matter. If it was very long, that is more reliable than if it was very short. Secondly, whether the witness saw all or only part of the perpetrator’s face. That is clearly a relevant matter as well. The distance the witness was from the perpetrator is relevant. The lighting conditions, the weather conditions, whether or not there was any obstruction between the witness and the perpetrator, whether the witness was in a state of fear or shock, or was calm and collected, whether or not the witness or whether it was an identification of a stranger. Clearly if you knew somebody, it is a case of recognition that may be more reliable than the identification of someone unknown to you. If the witness knew the perpetrator, how well did the, how long did the witness know the perpetrator. And there may be other factors in the surrounding circumstances which are germane and which come to your mind. But you have regard to all of these conditions which differ from case to case in assessing the reliance you can put on the identification. If that circumstantial evidence is there, then you may assess that in assessing the reliability of the identification, circumstances surrounding the case which tend to prove that the identification was correct or tend to prove the opposite. There may be circumstantial evidence which dehydrates or dilutes the reliability of the identification. And you should look at the case to see if there is such circumstantial evidence which either re-enforces the evidence of identification, or if there is other circumstantial evidence which undermines the identification. So, the identification may be helped in the case by looking at the surrounding conditions, the factors which I have mentioned about the lighting, the distance, how well a person knew the other person and so on, and also by looking at the … all the circumstantial evidence may help in your assessment.

(Day 8, p. 22)

The learned trial judge, referring to the case being made by defence counsel stated:

“The defence says on the identification issue that the evidence on the identification is too unreliable, given the split second, the very short time that Garda O’Brien had to see and giving the circumstances in which Garda Downey and Garda McGauley had, the distance they were from the suspect and the fact that they got the position of the two accompanying men, they gave different accounts. The problem with the garda evidence as to times and the conduct of the subsequent garda investigation make the identification testimony unreliable. The defence say also, of course, that the prosecution had not proved its case beyond a reasonable doubt and if you accepted that, of course, that would be the end of the case, you would have to acquit the accused.”

(Day 8, p. 31)

The learned trial judge also addressed the jury in the course of his charge in the following general terms:

You, as a jury, have to be satisfied beyond reasonable doubt if you are to convict the accused. But the burden of proof beyond reasonable doubt is on the prosecution, not only on that core question, it revolves around any individual issue in the case. Now, it may be, and I am sure that it will be, that you will compartmentalise the different issues in this case and consider them separately, and if you are considering such separate compartmentalised issues, the burden of proof on each such individual issue is still always on the prosecution and it never moves to the defendant on any such individual issue.

And where the two views in any part of the case are possible on the evidence you as a jury must adopt that which is favourable to the accused unless the state has established their position and has done so beyond reasonable doubt. …when two views in any part of the case are possible on the evidence, the jury must adopt that which is favourable to the accused unless the state, the prosecution, has established the opposite is the position and has done so beyond reasonable doubt.

34. Following the conclusion of the learned trial judge’s charge to the jury, there was an exchange between counsel and himself in relation to certain aspects of the charge. Counsel for the appellant stated that he was essentially challenging the credibility of the identification evidence. He said,

(Day 8, p. 38):

“You say that the evidence was down to whether or not the gardaí identified probably the person in the middle. Judge, we are challenging the credibility of the gardaí, with regards to identifying him being there at all. It is not, you know, whether they could identify him at such and such a distance or not it is, well Judge, I think that should be made very, very clear to the jury that essentially, the way you put it, Judge, you seem to, it seemed to be on the one hand they are stating that, you know, they recognise him. On the other hand, we are stating that, you know, he might have been too far away to be recognised. We are stating that the credibility of the gardaí is at issue and that should be made extremely clear. That is our hope that is the basis of our case, not that they might have made a mistake as to who it was because of the distance, it is because of specifically with regard to times that he was not there at all. This is our central point and that was not, I believe, put forward as our central point. “

35. Counsel for the appellant also addressed the learned trial judge as follows:

“And one last point, just at the start you mentioned that the case was, you said there are issues including one of possession, common design and I think the amounts involved. And then you went on to say that this is essentially a matter of identification evidence. If it could just be made clear, identification evidence with regard, I think you stated you could disregard those, this is a matter of identification evidence. Just if you make clear that it is identification evidence with regard to whether or not he was in possession.”

36. Counsel for the appellant also stated (Day 8, pp. 38/39):

“Just I would like for it to be made clear that our main, the main plank of our defence is not that they could not see him properly or that he might have been too far away or that he might have made a mistake. The centre plank of our defence has always been that the gardai’s credibility cannot be relied with regard to them seeing anybody or him at all. That is not our central, our central point is that credibility of the gardaí as to whether he was there, as to whether such an observation took place at all, not whether they made a mistake or not but whether, that they, whether their observation can be relied upon.”

37. Counsel for the appellant confirmed to the learned trial judge that the central point in the defence was that no observation had been made, rather than that a mistaken observation was made.

38. Following upon counsel’s requisition, the jury was then recalled and addressed by the learned trial judge in the following terms (Day 8 pp. 45/46/47):

“The defence has asked me to mention one matter which is part of the defence and I am very glad to do so. And that is that it is the matter of the times taken or kept or given in evidence by Garda Downey and Garda McGauley. ...”

“It is now, it is the defence case that this error - in times - undermines the creditability and/or/reliability of the identification testimony of these two guards..”

“. . . the defence asked me to say that these are the points that they are making. But in fairness, I should repeat what the prosecution case is, that the identifications were made in good conditions, it was a case of recognition and the accumulative affect of the circumstantial evidence makes it coercive that the identifications can be relied on... the defence case is that their evidence is too unreliable, as brought out by the inaccuracy with their times and that the, none of the three gardaí identified the accused at all, that whoever they identified it was not the accused.”

39. No further requisition was made by counsel for the appellant, and no criticism of the additional charge to the jury was made.

40. It is noteworthy that the requisition made by counsel for the appellant was not to the effect that there had been a failure to properly warn the jury about the risks associated with identification evidence. It was not suggested that the jury had been inadequately charged on the issue of reliability of the identification evidence in the sense that it was mistaken. On the contrary, it was very pointedly stated that the gardaí had not made any observation at all. In the course of this exchange with the learned sentencing judge, counsel for the appellant said:-

“But, judge, what we would be saying with regard to, our central point, would be the times with regard to the credibility of whether the observation was made at all, not whether they made a mistake about who it was.”

41. The submissions made in writing in advance of the hearing of this appeal, and those made in the course of the appeal hearing were markedly dissimilar to the post-charge requisition made by counsel for the appellant to the learned sentencing judge. The submissions made to this court were, essentially, that the jury had not been sufficiently warned as to the risks associated with identification evidence, that the jury was not advised to closely examine the circumstances in which identification was supposedly made, and that they had not been reminded of the weakness of the identification evidence. Counsel for the appellant accepted in this court that it was not being suggested that the gardaí were trying to stitch up the appellant. It was argued that the learned sentencing judge, in the course of his charge to the jury, failed to give full effect to the decisions in the cases of R. v. Turnbull [1977] QB.224 and The People (Attorney General) v. Casey (No. 2) [1963] I.R.33, as to the warnings that should be given to juries in relation to the risks associated with identification evidence.

42. In DPP v. O’Donovan [2002] 1.I.R.385, Hardiman J. stated the following:

The English case of R.V. Turnbull [1977] Q.B.224 was cited with approval by this court in the People v. Stafford [1983] I.R.165. In particular the following passage at page 228 from the judgment of Widgery C.J. as cited by Hardiman J. at page 170 was approved.

“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes, in recognition of close relatives and friends are sometimes made”

R. v. Turnball [1977] Q.B. 224 is also an authority for the proposition that the trial judge should:

(a) instruct the jury as to why it is necessary to be cautious with such evidence;

(b) point out that very often an identification witness, even when mistaken, can be honest and very convincing;

(c) direct the jury to examine closely the circumstances of the identification e.g. the distance of the observer from the criminal, the light, the date and time of observation, and whether the witness had seen the accused before, and that he should;

(d) remind the jury of any weaknesses in identification.

Hardiman J. went on to state:-

“This, indeed, traverses very much the same court as the Supreme Court had covered in the People (Attorney General) v. Casey (No. 2) [1963) I.R.33, at p. 39:-

“. . . their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, so the possibilities of mistake in the case before them and to the necessity of caution.”

In this case identification evidence was a crucial factor for consideration by the jury.

43. It is this court’s view that the fact that identification evidence was central to the case was fully recognised by the learned trial judge, and was fully and comprehensively addressed by him in his charge to the jury, and in the manner in which he dealt with the issues raised by way of requisition by counsel for the appellant. In the course of his charge to the jury, the learned trial judge, on a number of occasions, specifically referred to identification evidence, and made it very clear that they should closely examine and consider that evidence before making a decision in relation to it. The risks associated with identification evidence were spelt out to the jury in plain and ordinary language. The jury was reminded of the fact that the identification of the appellant by Garda O’Brien was made at a distance of twenty metres and in a split second, and at greater distances by his two colleagues. The learned trial judge reminded the jury of the defence contentions on the weaknesses in the identification. On the facts of this case the Court considers it was not necessary for the learned trial judge to set out the weaknesses in the identification evidence beyond that done in his charge. It is doubtful that anything more could have been stated by the learned trial judge. He took care to ensure that the jury applied their minds to this identification evidence with particular care and indeed, there is no reason to believe that they did not do so. This court is satisfied that the requirements of Turnbull and Casey were, in general, followed by the learned trial judge.

44. It is also noteworthy that both counsel for the appellant and the respondent in their closing speeches to the jury addressed the garda identification evidence in some detail and at some length. Those references, together with the learned trial judge’s remarks, would have undoubtedly left the jury in no doubt but that garda identification evidence was a crucial issue in the trial.

45. The appellant’s third ground of appeal is therefore dismissed.

Decision
46. The Court has rejected the appellant’s three grounds of appeal. The appeal against conviction is therefore dismissed.

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- McCarthy [2015] IECA 150 (13 July 2015) URL: http://www.bailii.org/ie/cases/IECA/2015/CA150.html Cite as: [2015] IECA 150

Irish Court of Appeal