THE COURT OF APPEAL
Ryan P.
Edwards J.
Hedigan J.Record No: CA 2013/225
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
JUDGMENT of the Court delivered 1st of June 2017 by Mr. Justice Edwards.
Introduction
1. On the 2nd of July 2013, following a three day trial, the appellant was convicted by the 10:2 majority verdict of a jury at the Dublin Circuit Criminal Court of a single count of assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act 1997.
2. The appellant subsequently received a sentence of three years imprisonment, suspended on conditions for a period of three years, in respect of the said offence.
3. The appellant has appealed against both his conviction and sentence. However, this judgment deals solely with his appeal against conviction, and with a related motion seeking leave to adduce new evidence on the hearing of the appeal.
Summary of the evidence before the jury
4. Before setting forth the appellant’s grounds of appeal, it may be helpful to first of all review the evidence that was adduced before the jury at the appellant’s trial in reasonable detail for the purpose of contextualising those complaints and facilitating engagement with them.
5. The first witness was Ms Marian Wallace. The jury heard that in January 2012, and for twenty three years prior to that, Ms Wallace was the manager of the “Busy Bees” crèche on Kilmacud Road Lower. One of the children then attending the crèche was a little boy called R who was the child of the appellant and his former partner, Ms O.
6. R had begun attending the crèche in February 2010 and Ms Wallace was told by Ms O that the appellant was allowed to collect R from the crèche. However, in July 2010 that permission was withdrawn due to unhappy differences that had arisen between the couple.
7. By August 2010 the couple had come to an arrangement that the appellant would collect the child on certain days. Ms O would ring Ms Wallace to advise her when the appellant would be collecting R. However, in November 2010 Ms Wallace learned of on-going difficulties in the couple’s relationship when, on a day when R was not due to be in the crèche, Ms O telephoned Ms Wallace to ask if R could be brought to the crèche by the appellant so that Ms O could collect him there, as there had been problems when the appellant was dropping off the child to Ms O’s home. Despite this the arrangement whereby the appellant would collect R on certain days with Ms O’s permission continued.
8. Then on the 3rd of January 2012, the day before the crèche was due to re-open after the Christmas break, Ms Wallace received an email from Ms O revoking permission for the father to take the child from the crèche, and Ms Wallace duly made her staff aware of this.
9. On the 4th of January 2012, at about noon, Ms Wallace was working in her home office next door to the crèche when she received a phone call from the crèche’s assistant manager, Karen Simpson, alerting her to the appellant’s arrival at the premises. She instructed Ms Simpson to keep him there and that R was not to go with him until she came down. Ms Simpson was also instructed to ring Ms O, which the jury later heard she duly did.
10. Ms Wallace proceeded immediately to the crèche. On arrival she went straight upstairs to the children’s room (established later in other evidence as being the junior Montessori room) where she found the appellant seated on a foam chair inside the door. The children were having their dinner. Ms Wallace greeted the appellant and requested a word with him in the office and he replied “fine”. The appellant got up off the chair with a little difficulty, as he has a physical disability, following which Ms Wallace again indicated she wished to speak with him in the office. This elicited the response “I’m not leaving without R”.
11. Ms Wallace told the jury that at this point she moved position and stood between the appellant and R, who was seated at a nearby table having his dinner. She then said to the appellant "I don't think we'll be taking R down I think we'll just have a chat ourselves downstairs." At that stage the appellant was in front of Ms Wallace and she told the jury that he pushed her by putting his two hands on her shoulders. Ms Wallace then said to the appellant, “Mr W, please don't do that." She stated that the appellant just looked at her, and then he pushed her quite hard by putting his two hands on her chest.
12. The children were still present and some of them began to cry. Ms Wallace’s evidence was that she then said “[y]ou're upsetting the children, please don't do this.” R then started to cry and one of the other staff members picked him up, and she cuddled him. At this point the appellant asserted “I'm not going without him”. The staff member cuddling R then moved towards the door and opened it as if she going to take the child out of the room. However, Ms Wallace followed straight behind her, as did the appellant, and as they were all about to go through the door Ms Wallace deftly moved the staff member holding R aside at the last minute. She and appellant continued through the door into the corridor outside, the appellant apparently not realising what Ms Wallace had just done, and Ms Wallace then closed the door of the children’s room so that she was then alone with the appellant in the corridor.
13. At this point the appellant realised that R was still with the staff member in the children’s room and went to go back in through the door. Ms Wallace held the door handle and said “[n]o, you're not going back in. We'll go downstairs.” The appellant replied “[y]ou're obstructing me, you're kidnapping my child”, to which Ms Wallace in turn responded “I'm not kidnapping anybody. We have to talk about this downstairs.” According to Ms Wallace the appellant then said “[o]h, you're doing what that crazy woman told you to do, that crazy mother of his.” Ms Wallace replied “[w]ell, you know, I'm doing what I have to do. I have been told this morning that you haven't got access to him, so I think we should go down.” He then said, “[n]o, I won't”, to which Ms Wallace’s response was “[w]ell the guards are going to come.”
14. Ms Wallace told the jury that during this exchange the appellant was trying to balance himself against the door frame, and he was physically trying to get her hand off the door. The evidence was that there were further exchanges between the appellant and Ms Wallace in the course of which the appellant accused her of being “in cahoots” with Ms O and that he had stated in response to being told that the Gardaí had been called that the Gardaí were “in this too”. The appellant then proceeded to try and bang Ms Wallace’s hand off the door while balancing himself against the door, and he threatened to bite her. Ms Wallace admonished him that “[t]hat is no way to behave” but the appellant none the less attempted to bite her on the face. Before her could do so Ms Wallace moved out of his reach, and he then attempted to bite her hand which was still holding the door handle.
15. The door in question had wired glass in its upper half, and it was possible therefore for those in the corridor to see into the room, and for those in the room to see out. The door was also being held closed from the inside by another staff member, Henrietta Kiss, and R who was crying could be seen through the glass being held by the Montessori teacher, Theresa Lyons. The evidence was the appellant shouted to her through the glass “[y]ou're kidnapping my child, take your hands off my child.”
16. As to what happened next, Ms Wallace told the jury that the appellant then “leant back against the door and looked at me, quite coldly, and he said, ‘I'm going to hurt you.’ And I said, ‘Now, you're not going to do that MW, you know, let's be sensible here,’ and then he just put back his head and headbutted me straight into the face.”
17. Ms Wallace was struck on the nose. Although shocked, she did not let go of the door handle. She said to him, “MW, what have you just done?” And he said, "I did nothing to you. You did that yourself", to which Ms Wallace replied, “I didn't break my own nose.” At that stage there was blood coming from Ms Wallace’s nose and Ms Karen Simpson came to Ms Wallace’s assistance with a tissue. Ms Simpson later told the jury in the course of her evidence that, having initially gone downstairs to telephone the Gardaí when the appellant had first become aggressive, she had gone back upstairs and had arrived on the scene as the altercation in the corridor was taking place and had witnessed the headbutt.
18. What was alleged to have happened next was that the appellant attempted to get back to the door and he turned quickly and he fell over. According to Ms Wallace he fell over his feet and landed on the ground. Ms Wallace let him get up by himself and believed at that stage that he would accompany her downstairs. However, on getting back to his feet he went for the door again. In the meantime Karen Simpson had gone back downstairs to telephone the Gardaí for a second time. Ms Wallace told the jury that as he went for the door on this occasion “he twisted, you know, he turned difficult and fell again to the floor”. The crèche’s cook arrived upstairs as the appellant did so, and she went to help him get to his feet, but Ms Wallace, fearing he would lash out at the cook as well, said to her “[n]o, leave him. Let him get up himself.” The evidence was that the appellant was very aggressive at this stage. When the appellant got back to his feet the second time he went yet again for the door, Ms Wallace all the while holding on to the door handle to keep it firmly shut. At this point the Gardaí arrived on the scene and arrested the appellant.
19. Ms Wallace told the jury that the injuries suffered by her in the incident included fractured nasal bones, a cut to her nose and a haematoma to her eyes. In addition, she had bruising to her arm in several places. She said the bruising to her arm was sustained “from where he was whacking -- beating my arm against the door handle”. A medical report from Ms Wallace’s General Practitioner, Dr Cathy Cullen, that was read to the jury as a statement of evidence pursuant to s.21 of the Criminal Justice Act 1984, did not refer in terms to “fractured nasal bones”, but rather referred to “nasal bruising” and to the fact that x-rays had revealed “minor deviation of the nasal septum to the right side”. However, it also referred to the opinion of a specialist, Professor Angus Curren, who had reported to Dr Cullen, that Ms Wallace “did have a slight deviation of her nasal bridge with a mobile fragment anteriorally.”
20. Under cross-examination Ms Wallace indicated she did not know whether the appellant knew that his permission to collect the child had been withdrawn, when he arrived at the crèche on the 4th of January 2012. She further stated that from July 2010 the crèche was always notified in advance whenever the appellant would be calling to collect R. On this occasion they had not been notified. Ms Wallace denied a suggestion put to her that after informing the appellant in the children’s room that she wished to speak to him in the office, she had lifted up R from where he was seated and had handed him to Theresa Lyons, with instructions to her to take the child to another room.
21. Ms Wallace denied a suggestion put to her that she had not been assaulted within the children’s room (i.e., the pushing incident). She further denied a suggestion put to her that when they went out into the corridor, she had in fact pushed the appellant to the side. It was put to her that as she was holding on to the door to prevent the appellant from going back into the children’s room she had said to him that he had no right to remove his son from the crèche and that he told her in reply that there was the written agreement and he was entitled to remove his child. Ms Wallace denied that this exchange had occurred.
22. Counsel for the appellant then put the following matters and received the following answers:
“Q. He asked you then if he had no right to remove his son why had you been letting him do that for the last two years?
A. No, that never took place.
Q. You told him he wasn't the child's legal guardian?
A. No.
Q. There was talk about that. I think then he asked you why you had never raised the issue with him before?
A. No, that conversation never took place.
Q. Now, I think you at that stage became irate?
A. Under no circumstances. …”
23. Ms Wallace further denied suggestions that she had made derogatory remarks about the legal profession (the appellant is a Barrister), and that she told him that she would get her husband, who is a member of An Garda Síochána to “sort him out”. She stated that it had been the appellant who was disparaging of the legal profession and “about the guards coming and that they were in this too, and what good were they, they were useless.”
24. Ms Wallace denied that, as she was holding on to the door, she had become physical with the appellant and was pushing and shoving him away from the door. It was put to her that on two occasions she had dragged him to the ground, and she denied this.
25. It was put to her “that at one stage Mr W managed to get in front of you, you pulled and dragged him from behind and he fell over on you” and “that's how his head hit your nose, it was an accident, and that's how you injured your nose”. Ms Wallace denied this suggestion saying “[n]o, I'm sorry, but that did not happen” and that “[a]t no stage did he fall over on me and at no stage did I drag him backwards on top of me.”
26. Ms Wallace further denied a suggestion that she and Karen Simpson had jointly pulled at the appellant causing him to fall to the ground on a second occasion. She said that at no time had Karen Simpson put her hand on the appellant.
27. The cross-examination concluded with it being put to Ms Wallace that the appellant had never laid his hands on her in the children’s room, that he had never said he was going to bite her, that he never made any effort to try and bite her, that he never said to her that he would hurt her and that he had never headbutted her. Ms Wallace was adamant that these things had all occurred. She further disputed a suggestion that the appellant had in fact said to her during the verbal exchanges outside the room that “[y]ou are going to hurt yourself”.
28. In response to it being put to her that “this was a pure accident caused in the course of the scuffle to get the door and it was you who pulled MW, caused him to lose his balance and he fell on you and that's how you sustained the injuries”, Ms Wallace said “that is not at all what happened and the story that I have told you and recounted is exactly what happened.”
29. In further support of the prosecution case the jury received evidence from Busy Bees crèche staff members Karen Simpson, Theresa Lyons, Henrietta Kiss and Jacqueline Albujar, as well as evidence from one of the Gardaí who had attended at the scene and arrested the appellant, and evidence from the appellant’s estranged partner, Ms O.
30. Karen Simpson told the jury that she had been told by Marian Wallace on the 4th of January 2012 that the appellant was not authorised to pick the child up and that if he arrived to do so she was to call her. She stated that the appellant did arrive and when she saw him walking in she telephoned Ms Wallace immediately. She also telephoned Theresa Lyons in the Montessori room to let her know the appellant was on the way up. Ms Wallace then arrived and went upstairs. Ms Simpson remained downstairs at that stage, and telephoned Ms O to inform her that the appellant had arrived and was looking to pick up his son. Having made that phone call she went upstairs to check where Ms Wallace was and they were in the junior Montessori room. She neither saw nor heard anything untoward at this point so she went back downstairs.
31. Shortly after that she was summoned by another staff member to go back upstairs and on doing so saw the appellant and Ms Wallace outside the Montessori room. She told the jury that “Marian was in front of the door and Mr W was trying to get into the room to get R”. She said that he was “really angry and aggressive and, you know, saying that he's got to get his child, he needs to get his child and, ‘You're kidnapping my child,’ and kind of all this aggression”. She said she was worried about Ms Wallace’s safety as the appellant was threatening to hit her, and that Ms Wallace then told her to call the Gardaí.
32. Ms Simpson said she went downstairs again to do so, and that having done so she went back upstairs again. On her arrival upstairs she found that “Marian was holding on to the door and MW was still trying to get into the door”. She told the jury she saw “MW head go forward and then ... back and [he] headbutted Marian” and that then “[s]o he's like, ‘Look what you've done to yourself,’ or, ‘You've hit yourself,’ or words to that effect.”
33. She said she saw blood coming from Ms Wallace’s nose and she assisted her by providing her with a tissue, before going back downstairs to make a second call to the Gardaí. Having done so she went back upstairs again and she found that Ms Wallace was still holding the door and the appellant was still trying to get into the room. She said she saw the appellant stumble and fall, and by way of further explanation she said “he just turned around and tripped over”. She denied she had any involvement in pushing the appellant as had been suggested to Ms Wallace.
34. It was put to Ms Simpson in cross-examination that the appellant had never head-butted Ms Wallace. However the witness was adamant that he did. It was then put that “what had happened was that Ms Wallace had tackled him from behind and he had toppled over and fallen on top of her”. Again, she denied this. It was then further put that “when you were up there there was a second time he fell over, that the first time he fell over that's when the damage was caused to Ms Wallace but he fell over a second time and you were there at that time and you and Ms Wallace pulled him over”. Counsel added “[a]nd that he was on the ground and that when the cook came up he was still on the ground and Ms Wallace was standing and she'd a cut to her nose?” Ms Simpson’s response was “[n]o, that did not happen, no.”
35. A statement of Theresa Lyons was read to the jury pursuant to s.21 of the Criminal Justice Act 1984, in which she stated:
“On, Wednesday, the 4th of January 2012, I was working at the crèche and I was on my lunch break when Karen told me that R’s dad, MW, was here to collect him and to stall him until Marian arrived. I had just got back up to the room where R was and I gave him more lunch to eat and MW came into the room. He sat down on one of the chairs talking to R. I generally chatted to MW and he was very calm at this stage when Marian came in. She asked MW if she could have a word with him in her office. He said to Marian, 'Yeah, I'll be down in a minute with R.' Marian asked again if she could have a word with is just him in the office. MW said he would with R. Marian said, 'I can't let you take him.' MW stood up from the chair and his tone got louder saying, 'I'm taking my son.' He said, 'We have a written agreement and whatever that crazy lady told you was all lies.' R was starting to get up at this stage, so I picked him up and walked outside of the room with him. Marian and MW then came outside the room and as they did so I came back inside again with R and the door was closed over. As MW seemed to be aggressive at this stage, pushing against the door to stop him ..." sorry " ... as MW seemed to be aggressive at this stage, pushing against the door to stop him pushing it open, I heard Henrietta say to MW she couldn't let him in because he was frightening the children. R was getting more upset now because MW was outside the door calling for R, so I was holding R to try to comfort him and calm him down and MW shouted at me, 'Take your hands off my child.' I could also hear MW say to Marian, 'You're trying to kidnap my child.' I couldn't really see what was happening, but I could see Marian pinned against the wall and her and MW were facing each other. I could hear Marian saying, 'You are assaulting me.' She then said, 'I'm going to call the gardaí.' And she shouted he shouted at her to call the gardaí. I am not sure at what point this was but I could hear Marian say to the MW, 'You're going to break my arm.' I didn't see what happened outside the door; I just heard all the shouting. Marian was kind of talking normal and MW was shouting over her. He was angry. I could see at one stage that he had after fallen but I didn't see how. I just saw him on the ground. All this went on for 20 minutes, and I was very afraid that he was going to come into the room.”
36. Henrietta Kiss told the jury that around noon on the 4th of January 2012 she was helping out in the junior Montessori room. Her colleague Teresa was there, as was the child R. She arrived before the appellant did. He came in and sat down because R was eating. A few minutes later Marian Wallace came in and asked the appellant to go down to the office with her to talk. The appellant reacted strangely and aggressively straight away. He said “I'm not leaving without R,” and Marian just repeated, “[c]an we go down and have a talk first, please?” Ms Kiss told the jury that the appellant started kind of pushing Marian and saying, “I'm not leaving without my son. You're kidnapping my child.” She heard Ms Wallace saying “[y]ou can’t do that, stop doing that”. Ms Kiss said she was attending to the children and did not see Ms Wallace and the appellant leave the room but shortly afterwards became conscious of them outside the door. The door was closed but she could see through part of it. She said she “got very scared at that stage and my main initial [aim] was to protect the children, so I stood against the door with my shoulder pushed against the door so Mr W couldn't get back inside the room.”
37. Ms Kiss further stated: “Mr W’s hands were all over Marian and he was shouting at her and saying, ‘I'm going to hit you. I'm going to hurt you.’ And Marian said, ‘Stop pushing me’ Marian was trying to block the door”. Ms Kiss said that as she was holding the door from the inside children were approaching her and asking what was happening. She spoke to the children for a few moments and when she turned back she saw Marian's face was bleeding. At this point she heard Marian say to the appellant “[y]ou broke my nose.” Ms Kiss recalled that the assistant manager had arrived at that stage and her impression was that the Gardaí were being summoned. She saw the appellant on the floor at one stage, and saw him getting up, but did not see how he came to be on the floor.
38. Under cross-examination Ms Kiss rejected a suggestion put to her that the appellant had been willing to go to the office to speak with Ms Wallace when initially requested to do so. She agreed however that the appellant had attempted to get up from where he was seated, but stated that almost immediately “he started saying I'm not leaving without my son.”
39. It was put to her that she had not said in her statement to the Gardaí that she had seen the appellant pushing Ms Wallace, and had heard Ms Wallace saying “you can’t do that, stop doing that”. Ms Kiss responded “I couldn't recall everything I remember because I was looking after the children as well.”
40. She agreed that she had told the Gardaí she was unsure whether the appellant had said to Ms Wallace “I’m going to hit you” or “I’m going to hurt you”, however it was one or the other. Ms Kiss denied that Ms Wallace had told her to block the door. The witness agreed that she had not said to the Gardaí that the appellant’s “hands were all over Marian” and that what she had in fact said in her statement to the Gardaí was: “At one stage I saw Marian with her two hands up protecting her face and MW with his two hands up towards Marian being very aggressive”. When asked to comment why she had said something different to the jury there was the following exchange between counsel and the witness:
“Q. But that's not what you said to the jury today; you said that they were all over Ms Wallace?
A. Like this.
Q. But that's not what you -- "At one stage I saw Marian with her two hands up protecting her face and MW with his two hands up towards Marian"?
A. Yes, that's what I meant by towards, like, like this.”
41. Ms Jacqueline Albujar told the jury that on the 4th of January 2012 she was working at the Busy Bees crèche, and at lunch/dinner time she was in the senior Montessori room which is directly across the corridor from the junior Montessori room. She became aware of “very bad shouting, screaming” outside of the room, and she looked through the window of the door into the corridor. When asked what did she see, she replied:
A. “Well I saw Marian holding junior Montessori doors, trying to close in the doors, you know, closing, holding the door, and then I saw a parent I never seen before there.
Q. Very good?
A. Shouting and screaming very aggressive way to try to get in. So pushing Marian, try to open the door. After that I saw he was shouting, saying, ‘I want to get my child out, let me let in’, you know.”
42. Ms Albujar said she then put on a radio in the senior Montessori room in an attempt to distract the attention of the children in her charge from what was going on outside the door, following which she looked out the door again. She said the appellant “was like trying to push her, tried to get in, and saying like, ‘Let me take my child,’ after she was saying, ‘oh, let's go downstairs’” and that “after that I saw Marian, kind of head was down, because he was pushing, shaking, like, tried to open the door. So when I saw I went to -- Marian put her head up, I saw she was bleeding. So I got worried, you know, I tried to open the door and say, ‘I saw you, what you are doing, stop.’ He say like, ‘Oh, you know, you did yourself.’ I remember he say like, ‘Look what you did yourself,’ and I say, ‘No, you did it.’”
43. Ms Albujar added: “So after that we have a telephone beside so we kind of communicate between the different rooms, so -- well, I say as I pretend I was calling the garda, I remember I told him stop, I am going to call the garda.” … “And he say, ‘Yes, call 999 and tell this woman is kidnapping my child.’ But and then after that Karen, my manager, came in, so I just closed the door, because I saw Marian was with Karen so it will be okay …”
44. Ms Albujar told the jury that her focus had returned to the children in her care when “I hear, like, very big bang, so I went to see what happened, you know, so I saw just Mr W was on the floor, so Karen went to help to help him, he was like, no, no, and he stand up …”
45. Under cross-examination Ms Albujar agreed that she did not see how Ms Wallace had sustained the injury to her nose. She also agreed that the appellant did not appear to have a problem with her calling the Gardaí. In relation to seeing the appellant on the ground, she agreed that the cook Rosanne had been there but said she did not see Rosanne trying to help the appellant up. She agreed that she had not been looking into the corridor continuously and had missed a lot of what was going on.
46. The only other prosecution witness was Garda Linda Byrne, who was one of the two Gardaí who attended at the Busy Bees crèche on the 4th of January 2012 in connection with the incident. She and her colleague went upstairs on arrival at the crèche and found the appellant and Ms Wallace outside one of the rooms. Ms Wallace was observed to be in a distressed state and to have cuts to her nose. The Gardaí separated the appellant and Ms Wallace and spoke separately to both of them, as well as to other persons at the scene. Following this the appellant was arrested on suspicion of assault causing harm, cautioned, and conveyed to Blackrock Garda Station where he was detained and interviewed while in detention.
47. The jury heard from Garda Byrne that the interview was conducted in a question and answer format, and that it took the following course:
“Q: What is your full name?"
A: MW ."
Q: What is your date of birth?"
A: "27th of April 1972."
Q: "You understand that you have been arrested for allegedly assaulting Marian Wallace who is the manager of the Busy Bees crèche on today's date. What do you have to say in relation to this?"
A: "I didn't assault that lady."
Q: "It's alleged that you came into the crèche to collect your son R; is that correct?"
A: "Yes."
Q: "You were told by Ms Wallace that you were denied access to your son and she had been informed by the son's mother that you no longer had permission to collect him from the crèche; is that correct?"
A: "She did not say that."
Q. "It's alleged that altercation then pursued and that you said that you were not leaving the crèche without your son; is that correct?"
A: "There was an altercation and Ms Wallace attempted to stop me leaving with my son. I don't know if I used those words or not, but I certainly was there to collect my son."
Q: "It's then alleged that yourself and Mrs Wallace came to a struggle with her trying to keep the door shut using her body to block it and you pushed against the door trying to force it open, what do you have to say about this?"
A: "I was originally in the room talking to my son as he finished his lunch. Ms Wallace came into the room, asked if she could talk to me in her office. I said, 'What about?' She lifted my son up from the table he was sitting at and put him in the arms of a crèche worker with dark hair whose name I do not know and asked her to take R out and my son became immediately distressed as did I. The crèche worker went outside the room with my son and I followed. Mrs Wallace then gently pushed me to one side and then asked the crèche worker to go back into the main room. She blocked me returning into the main room. At this point I was outside the room. A different crèche worker blocked the door from the inside putting her foot against it and holding the handle. Mrs Wallace then held the handle of the door from the outside and blocked me from going in. My son was extremely distressed from this. I could see him crying. And I was distressed too."
Q: "How did you feel towards Mrs Wallace that she was stopping you from taking your son from the crèche?"
A: I was distressed. I had no warning that this was going to happen from Mrs Wallace. I have collected my son from the crèche most Wednesdays for at least six months. Mrs Wallace and I have a written agreement along with Ms O the mother of my son that says that either of us can deliver him or take him from the crèche. This is a standard agreement with all parents."
Q: Do you at any time during this altercation with Ms Wallace try to contact Ms Ol to inquire of any changes to your agreement or arrangements?"
A: I have poor relations with Ms O. She has frequently stopped me seeing my son."
Q: "During the altercation with Mrs Wallace did you at any time raise your voice or become aggressive towards her?"
A: I was not aggressive towards her. Mrs Wallace's voice was raised a little bit above normal, as was mine."
Q: Do you think at any time did you put her in fear of her safety or the safety of any of the children in the crèche? Did she seem afraid to you?"
A: She did not seem afraid and she was quite aggressive towards me blocking the door and leaving my son very upset. I didn't put any of the children in fear. Their curiosity was aroused; they were looking towards the door in an adjacent room. I could see another crèche worker had come to the door to see what was happening and a few children were standing behind her."
Q: "As the altercation pursued it is alleged that it escalated and that you assaulted Ms Wallace by headbutting her in the face, what do you have to say to this?"
A: "I did not headbutt Mrs Wallace in the face. On two occasions Ms Wallace assaulted me. She dragged me to the ground once on her own and once with the aid of the deputy manager called Karen. Mrs Wallace injured herself on the first of these occasions when she pulled me from behind to the ground. I have a small cut on my hand and a slightly bruised knee. Mrs Wallace also threatened me after she had injured herself by suggesting that I would have to deal with her husband who is a guard."
Q: "You said that she injured herself by pulling you to the ground. How exactly did she injure herself?"
A: "I was facing the crèche door and she was standing behind me and she pulled me over, we both fell. I'm not sure precisely how she injured herself as I was facing the other way but I would guess she hit herself on the floor as she fell or the back of my head collided with hers. I could see that she had cut herself."
Q: "What happened after you noticed that she had a cut to her nose and was bleeding?"
A: "She became quite irritated and aggressive, accusing me of assault, and she suggested that I would have to deal with her husband the guard and she became increasingly aggressive over the next 20 minutes and dragged me to the ground the second time with the deputy manager's assistance."
Q: "Why did she drag you to the ground?"
A: "The cook came to calm things down and she was successful."
Q: "Why did she drag you to the ground? Is it because you refused to leave and insisted on seeing your child?"
A: "Only Mrs Wallace knows why she did what she did, I cannot explain her reasons. I did suggest to Ms Wallace during the altercation that she and I and my son could sit in her office and discuss this as she had suggested to me. It became quite clear to me that Ms Wallace had an agenda to stop me seeing my child. Earlier on in this incident the deputy manager told Mrs Wallace the manager that she had phoned Ms O at work and left messages on her phone. It became clear to me that Mrs Wallace was planning to stop me from taking my child from the crèche and had agreement with Ms O to phone her when I arrived so that Ms O could collect my son."
Q: "Did you assault Mrs Wallace at any time during this altercation?"
A: No, Mrs Wallace injured herself when she assaulted me."
Q: Did you show any concern when you saw blood coming from her nose?"
A: I told her initially she was cut as she didn't notice straight away. I then suggested that she clean it up, which she refused to do."
Q: I formally put it to you that on Wednesday, the 4th of January, at approximately 12.30 pm at the Busy Bee's crèche you assaulted Marian Wallace causing her harm, what do you have to say to this?"
A: That's not true, there are reasons that I have explained above.”
48. The final witness for the prosecution was Ms O who confirmed that she had become involved in a relationship with the appellant in the course of which she became pregnant with R; that she was still in a relationship with him when R was born; that unhappy differences had developed between herself and the appellant; that custody and access arrangements had subsequently been put in place with respect to R; that those arrangements had broken down due to an unspecified incident that had occurred over the New Year holiday in 2012; that she had sent an e-mail to the appellant on the 2nd of January 2012 informing him, that “[a]ll access to R is suspended until review by the courts on February 2nd 2012”; and that she had sent an e-mail to Ms Wallace on the 3rd of January 2012 informing her that the appellant “did not have permission to remove R from the crèche and that I would contact her or speak to her in more detail when I saw her later that day”.
49. It was put to Ms O in cross-examination that the appellant had not received her e-mail of the 2nd of January 2012 until the 6th of January 2012, on which date he had replied to her via her solicitor. In response, Ms O indicated that she could not say when he had received it, but confirmed that her solicitor had received an e-mail from the appellant on the 6th of January 2012 although she believed it was not correspondence replying specifically to her e-mail but rather a reply to other correspondence from the solicitor to the appellant.
50. That concluded the prosecution case. The defence opted to go into evidence and the appellant himself gave evidence in his defence.
51. The appellant told the jury he has a stable medical condition comprising “a type of atrophy which means that the muscles in your legs waste somewhat. It causes me some walking difficulties, it causes me difficulties with stairs; it does affect my balance.” He confirmed that he had been in a relationship with Ms O from whom he was now estranged and that they have a child, R. R had been attending Busy Bees crèche since he was eight months old. The appellant also told the jury he is a barrister by profession and lives in Northern Ireland.
52. He described the process wherein he and Ms O had registered R to attend Busy Bees crèche, and identified a copy of the relevant registration form which was exhibited. The registration form indicated that four people were authorised to collect R from the crèche, i.e., Ms O, the appellant, Ms O’s sister, and a friend of Ms O. He further described the parenting arrangements with respect to R between himself and Ms O, and in particular the arrangements whereby he was to have access to R, and described how difficulties had progressively arisen between them with respect to that access, and how there had been a disagreement between them on New Years day that had culminated in Ms O sending an e-mail to him on the 2nd of January 2012, but which he was adamant he had not received until the 6th of January 2012 as he had no access to a laptop or computer in the interim, purporting to withdraw access facilities with respect to R from him. He stated that he had found it easier to respond to Ms O’s solicitor, rather than to Ms O, and did so on the 6th of January 2012.
53. The appellant said that his normal day for collecting R from the crèche was a Wednesday, and that on Wednesday the 4th of January 2012 he planned to collect R as normal in circumstances where he had “no inkling” concerning the instruction Ms O had given to Ms Wallace in her e-mail of the 3rd of January 2012. He had driven from Belfast as normal and arrived at the crèche around lunchtime which was his usual time. He admitted himself using a code for the door that he said all parents had been given. He walked in past the office, which was on the right as one enters, and Karen Simpson was there. She didn’t stop him or say anything to him. He checked if R was in a downstairs room, and encountered a lady called Maria who directed him to the junior Montessori room upstairs.
54. The appellant told the jury that he went upstairs and into the room in question where there were children, including R, sitting around a table and R had food in front of him. R was delighted to see him, and it was apparent he was ready to leave. However, Theresa Lyons, who he said he now understood had been instructed to stall him, put more food on R’s plate. The appellant said he encouraged R to “[e]at your lunch”, and the appellant then sat down with R and chatted to him and to some of his friends. For five minutes or so it was relaxed and happy.
55. The appellant told the jury that Marian Wallace then arrived and “she asked me if I could go downstairs with her to have a chat. I asked what about. She wouldn't say what it was about and then she asked me again and I says, ‘Okay, we'll come down now.’”
56. What happened next, on the appellant’s account, was that “I was getting up from the chair, I was willing to go with her. At this stage she declared that my son wouldn't be leaving with me. She lifted him up, she put him in the hands of Theresa Lyons. My son became instantly upset. At this stage she then told Theresa Lyons to go into a small anteroom at the back. I hadn't been in this room before so I don't know what exactly the anteroom is but I get the impression that it's like a changing room or it's a storage room or some sort of facility like that, so -”
57. He continued:
“Okay. My son had just been put into this lady's arms. He doesn't know her particularly well. He's in a new room with new staff. He gets very upset at being taken away from me. Marian Wallace then directs Theresa Lyons to go out of the room and into the corridor. She goes out of the room and into the corridor. I follow her out -”
58. The appellant’s examination in chief then continued as follows:
“Q. This is Marian Wallace?
A. I follow she -- Marian Wallace directs Theresa Lyons to go out of the room and into the corridor with my son, who's kicking off at this stage. I go outside, I follow both of them outside, three if you include my son. Out there Marian pulls a little kind of push manoeuvre to get me to one side --
Q. Now
A. -- and then directs Theresa Lyons to go back into the room.
Q. Now, before you left to go out into the corridor, Marian Wallace says that you pushed her twice?
A. No, That's not true at all. That's completely untrue. You know, I didn't push her, I wasn't anywhere near her and also what I think is very important is the fact that Marian Wallace has been contradicted in that regard in two statements that were given to the gardaí.
Q. But you're saying to the jury that you didn't push her?
A. I didn't push her, I didn't put my hands on her, I had no I was nowhere near her.
Q. So you're outside in the corridor and what happens then? Your son is back in the room?
A. I'm outside in the corridor with Marian Wallace, she's given me this sort of little push to the side and directed this Theresa Lyons to go back inside the room with my son. She does that, she goes back inside the room, she then tells Henrietta Kiss to pull the door. Henrietta Kiss holds the door from the inside, puts her foot on the bottom of the door and holds holds the handle of the door up. I try to get back into the room
Q. Well, Henrietta Kiss has told the jury that she actually put her back to the door?
A. Yes. Well, she wedged it she wedged it pretty firm, so she did, at different stages; at different stages she was facing the door and -- from where I was, outside in the corridor, and at different stages she had her back to the door.
Q. And what was Marian Wallace doing?
A. Well, at this stage, at this stage I was trying to open the door. At this stage Karen Simpson came back up the stairs, who's the deputy manager. It was the first time I had -- other than walking past her on the way in into the crèche. Karen Simpson came back up the stairs and reported to Marian Wallace that she had been unable to contact Ms O. This would suggest that they had a conversation downstairs a few minutes beforehand. So I she then directed Karen Simpson to go back down the stairs and try to phone O again. At this stage my son was very distressed, he was very upset, screaming at the top of his lungs throughout. I tried to open the door, tried to get in again. Marian Wallace was holding the door from the outside but Henrietta Kiss was jamming the door from the inside, so I couldn't get through the door.
Q. Now, you've heard the various witnesses say in the witness box that you presented as aggressive at that stage. How would you describe yourself?
A. Well, when I was in the room initially, I was completely calm, it was very normal, it was very everyday, but at this stage when my I'm being kept outside the room, my son is being barred and locked inside a room and he is highly distressed, and I became highly distressed.
Q. And can you remember what happened after that?
A. Well, at this stage, at this stage there was a verbal disagreement between myself and Marian Wallace. She told me that I had no right to take my child out of the crèche. I challenged her on this and I said I had every legal right to take my child out of the crèche. I had been taking my child out of the crèche for the last two years and at no stage had anybody ever stopped me or anybody say that couldn't do it. She then told me I wasn't the legal guardian of my child. I told her I was the legal guardian of my child. I then told her we had an agreement between the crèche and myself, and at this stage I told her that what she was doing was abducting my child. So this we had this verbal disagreement, that's in short, and
Q. And I think that was quite quite loud?
A. Well, that's a shortened version of it.
Q. Yes, yes?
A. But, I mean, yes, certainly our voices were raised; it wasn't a quiet disagreement in that regard. At this stage Karen Simpson came back up the stairs again. She had been up she was coming up and down the stairs a number of occasions throughout. She reported -- she reported that she hadn't been able to raise the mother of my child on the phone again. At this stage I think she was sent back down the stairs again. It became it became quite it became quite loud between myself and Marian Wallace.
Q. Now, Mrs Wallace has said in the witness box that you attempted to you said you were going to bite her and that you did attempt to bite her?
A. I never said I was going to bite her, I never tried to bite her. That's just not true, it's just complete fiction.
Q. So, I think we're all agreed that Marian Wallace did receive an injury to her nose?
A. Yes.
Q. And to her elbows, can you ?
A. Well, this came this came at a slightly later stage.
Q. Yes?
A. But in terms of the injury that she received, I was trying to get I was trying to get in the door. This has been going on for about 10 minutes. My son was screaming his lungs off inside, there was no prospect of getting Ms O on the phone, at least according to the instructions that Karen Simpson was relaying up and down the stairs. I had got to the inside of Marian Wallace, I had my hand on the door, there was I was remonstrating with the people inside the door who were forcing the door shut, preventing my son getting to me. One of them was trying to pull him away from the door. I told her to take her hands off my son. He's a very free kid, he doesn't like anybody lifting him and pulling him about. At this stage Marian Wallace started pulling at me to try to pull me away from the door.
Q. Were you in front of her or behind her at this stage?
A. I was I was looking at the door, I was between her and the door. She was behind me at the door. I had my door I had my hand on the door handle and she started pulling me from behind. Now, I don't have eyes in the back of my head, so I can't tell you exactly what happened, but she pulled me and I think she also put her knee into the back of my legs, which would caused me to fall over, so she pulled me and I fell back and collided with her.
Q. Now, I think that was the first time you had fallen?
A. That was the first time. I was on the floor twice.
Q. Yes?
A. That was the first time because she pulled me over.
Q. And after you got up off the floor on that occasion, did you notice anything had happened to Marian Wallace?
A. Yes. She squeezed her nose for a while, she obviously had a sore nose. She did say to me that I did that to her and I told her that she did it to herself. There was a verbal exchange to that effect. She squeezed her nose for a period of time and then there was some blood came out of it. I can't be sure if it came out from the inside of her nose or if it came out from this small little cut that she had on the top of her nose. I'm unclear about that because she had her handkerchief over her nose, so I couldn't completely see. She also did say at some stage later to her doctor that she had a haematoma which suggests that -- a haematoma is a cut where the skin doesn't break. You get a little mark
Q. I think she's referring to the bruising that would be associated with a nose injury, a bruising under the eyes?
A. In any event, I can only tell you what I saw. I'm not sure if there was a small bit of blood came from the inside of her nose
Q. Yes. But in any event you did notice that she had injured her nose?
A. Yes. And I drew it to her attention. At that stage she didn't know she had a small trickle of blood
Q. Now ?
A. but she did know she had been injured and I encouraged her to clean it up.
Q. And Marian Wallace has told the Court that she said to you, "MW, look what you've done." And made some remark about, "surprised at you, a barrister"?
A. Well, she did she did -- she did accuse me of causing her that injury. I told her I didn't cause that injury, I told her she caused it herself. At one stage she made a few derogatory remarks about lawyers, water off a duck's back, which didn't mean anything to me. She did in fact threaten me with her garda husband, so she did, at one stage when this conversation had become quite heated. I had no absolutely no difficulty with the guards being called. My child was being abducted.
Q. Were you making any remarks about conspiracies or anything like that?
A. No, That's not true at all. I mean, I've worked in law for a long period of time. I've known in my time like most lawyers, I've seen
Q. You didn't you didn't make those remarks?
A. honest and dishonest cops.
Q. Now, did anyone else join in at this stage?
A. No. At this stage as it progressed I became aware that Jacqueline Albujar -- the corridor that we were in the trouble is you don't have any photographs to refer, but the corridor what we were in had a crèche room at one end that my child was in and a crèche room at the far end and at far end was the stairwell where people came up and down. At the far end of the crèche room, because there was a bit of a commotion in the corridor Jacqueline Albujar had came to the door, a few of the children had noticed that what were going on. They were they were curious to know what was going on. The thing about the doors in these crèches, the bottom half of them you can't see through, the top half are glass, so from a child's point of view, you couldn't see out and see what was going on; an adult could see in or out, a child couldn't see in or out, but you could probably hear that there was a bit of a commotion going on.
Q. So did she speak when she came out?
A. She said some things. Her English wasn't very good, so I didn't completely understand everything that she was saying.
Q. Well, she was talking about calling the guards?
A. Yes, I recall that was quite clear. She said she said something about calling the guards, and I encouraged her to call the guards. I in fact told her to call the guards, although I think she said in her evidence in this case that she only pretended to call the guards.
Q. Yes?
A. But certainly
Q. But she did agree that you said, "Dial 999"?
A. I don't recall verbatim whether I said, "Dial 999", or, "Call the guards", but certainly she said she would call the guards and I told her to call the guards. You see, at this stage at this stage Karen Simpson had been coming up and down the stairs. The first time she came up and down the stairs it was clear that she was only trying to phone she was only trying to phone Ms O,, and then on the third occasion, I think after Jacqueline Albujar had made this remark, Karen Simpson came back up the stairs and was told by Marian Wallace to phone the guards, and in fact Marian Wallace specified the garda station to phone, she said to phone the guards and phone Blackrock Garda Station and
Q. Now, Karen Simpson has told the Court that as she was coming around coming up the stairs, coming around the corner, she saw you headbutt Marian Wallace?
A. Well, That's not true. I didn't headbutt Marian Wallace. And what I think is very important to notice about Karen Simpson's evidence is that the statement she gave to the gardaí, she claimed that I had my back against the wall and Marian Wallace had her back against the opposite wall when she just came around she just came up the stairs and in the corridor at that moment.
Q. But in any ?
A. But also Marian Wallace told you that I had my back against the door. So I completely reject any suggestion that I headbutted this lady. In fact, Karen Simpson wasn't there, only at the time
Q. At the on the first ?
A. -- when I collided with Marian Wallace. She came back up the stairs seven minutes later.
Q. And what happened the second time you fell?
A. The second time I fell, this had been going well, I was pulled to the ground rather than fell. This had been going on for a long period of time, it felt about 15 minutes. They were trying to Karen Simpson and Marian Wallace at that stage decided to try and physically eject me from the corridor, so they were both grabbing onto me and both pulling at me, so both had one arm on one side of my and the other had pulling at me at the other arm on the other side. It was a very difficult situation to be in. It's what do you do; either you hit somebody back or, you know, you let them assault you. In this case I let them assault me, so they basically pulled me forward and I fell to the ground and I had sustained a very bad knee injury at that stage so I stayed on the ground for a few minutes
Q. I think someone else came up at that stage ?
A. because I was concerned about my knee.
Q. to sort it out?
A. Yes. The cook came up at that stage. I didn't know her name but I think she's I had passed her a few times.
Q. I think it's Rosanne?
A. Yes, Rosanna, Rosanna. She came back up and she tried to calm things down but Marian Wallace tried to send her away. At that stage, in fact, she tried she tried to help me get up off the floor but Marian Wallace wouldn't let her do it, and then she sent Marian Wallace sent her away again, back down the stairs.
Q. Now, I think the guards arrived just after this; isn't that correct?
A. Yes. The whole incident in the corridor took about 15 or 20 minutes.
Q. Minutes?
A. And then the guards arrived.”
59. In the course of being rigorously cross-examined on various matters, many of which it is unnecessary to specifically refer to in the course of this review, the appellant adamantly maintained that when he travelled down from Belfast on the 4th of January 2012 he did not know that Ms O had revoked his permission to collect R from Busy Bees crèche. He denied a suggestion that he was coming to take the child “come hell or high water”. He did not accept a suggestion that when Ms Wallace came into the junior Montessori room to ask him for a word in private, he knew immediately what it was about, and that he was not prepared to have a “civil” conversation with her, but rather had been aggressive from the outset. He said Ms Kiss’s evidence as to his demeanour was “not true”. He denied being aggressive, although he acknowledged that “the whole situation became quite heightened”, and that this had upset his son. He said his son was upset because he had just been taken away from his father.
60. He was asked to explain how it was that Ms Kiss had heard him threatening to hit or hurt Ms Wallace. He replied that Ms Kiss was “lying”. When it was put to him that Ms Wallace had separately said that he had told her “I will hurt you”, he responded “they’re lying”. When further asked about Ms Wallace’s evidence that he had threatened to bite her and tried to bite her twice, he responded “That's not true at all. That was never even put to me by the gardaí. It really has the ring of something that was made up some period of time later.”
61. It was put to the appellant that, contrary to his evidence, Ms Simpson had never man-handled him. He said that that was “not true”, that Ms Simpson had been “quite coy in what she told the Gardai”, that “quite clearly that lady is trying to be economical with the truth” and that she was “a dishonest lady”.
62. The appellant conceded that Ms Wallace had suffered “a relatively minor injury” but re-iterated that this had occurred when she caused him to fall on top of her. He further said “I didn't headbutt her, that's not true”. In relation to Karen Simpson’s claim that she witnessed the headbutting, he said “Ms Simpson wasn't there at the time it happened. Ms Simpson is completely fabricating her account that she was there at the time. She was downstairs, she came up several minutes later”. He said that Ms Wallace’s claim that she had been headbutted was “a lie from a lady who has plenty of motive to lie”.
63. In later elaboration on the theme that Ms Wallace had a motive to lie he added: “This lady took my child away from me, left my child in a highly distressed state. If she had wanted to have a conversation with me, she could have done it at any stage. She could have done it before I went in to the crèche, on the way in, or she could have done it with my child in my lap in her office, none of it was a problem. What she decided to do was take my child away from me. She has no legal right to do that. Henrietta Kiss has no legal right to abduct my child, to barricade a door, to keep me on one side of the door and my child in a thoroughly distressed state on the other side of this door. This was an ambush.”
Grounds of Appeal
64. The appellant lodged a Notice of Appeal against his conviction dated the 30th of October 2013 containing fifteen grounds of appeal. However these were later reformulated by the appellant and reduced to just ten grounds. The reformulation followed an Order of this Court made on the 31st of May 2016 permitting him to add an additional ground of appeal. The reformulated grounds further anticipated success by the appellant in seeking leave to add a further additional ground of appeal, which the appellant later sought to do on foot of a motion filed before this Court on the 2nd of February 2017. The said motion was in fact successful and by Order dated the 22nd of February 2017 the appellant was permitted to rely on a further additional ground of appeal. The reformulated grounds have not been objected in so far as they cover the additional matters permitted to be argued by the Court, and serve to consolidate some of the complaints made in the initial fifteen grounds of appeal. However they are objected to in so far as they are said to otherwise seek to extend or expand the scope of the initial grounds of appeal without leave of the court. This objection will be discussed later in this judgment in the specific context in which it arises.
65. The additional ground of appeal permitted by the Order of the 31st of May 2016 allowed the appellant to rely upon:
“the failure by the prosecuting authorities to disclose the statement of the complainant (Ms Wallace) taken by Garda Duff on 5th August 2012 at the direction of the DPP or any other statement made by the complainant and not disclosed.”
66. The further additional ground of appeal permitted by the Order of the 22nd of February 2017 allowed the appellant to rely upon:
“the failure by the prosecuting authorities to disclose statements made by Marian Wallace, Henrietta Kiss, Karen Simpson & Theresa Lyons dated the 4th of January 2012.”
67. As stated, the appellant re-formulated his grounds to incorporate these additional matters, and in consequence ten grounds of appeal are now identified and addressed in legal submissions filed by him on the 4th of November 2016. These ten grounds of appeal are:
1. The failure to disclose the Garda statement made by the complainant on 5th August 2012, the taking of which was directed by the DPP, and a handwritten statement of Marian Wallace dated 26th of March 2012;
2. Undisclosed statements of Marian Wallace, Henrietta Kiss, Karen Simpson & Theresa Lyons dated 4th January 2012;
3. Various failures in the Garda investigation;
4. Embellishment of evidence by the prosecution resulting in unfairness;
5. Indictment/Charge Sheet. Confusion between s.2 and s.3 assault. Judge’s Charge;
6. Recklessness and attending the crèche;
7. Failure to provide the criminal records of prosecution witnesses;
8. Failure to call two prosecution witnesses in the Book of Evidence;
9. Failure by Gardaí to investigate accused’s complaint against Mrs Wallace: unfairness;
10. Majority verdict.
68. On the 22nd day of March 2017, on the resumption of the already part-heard appeal in this matter, the appellant, who appeared in person, informed the Court that he would no longer be relying on ground no 10 in his reformulated grounds (ground 14 in his original Notice of Appeal).
Grounds of Appeal No 1. & 2.
69. Ground of Appeal No 1 embraces two complaints. The first is that the appellant was prejudiced by a failure on the part of the prosecution to disclose to him in time for him to make use of it at the trial a statement of Marian Wallace taken on the 5th of August 2012 by a Garda Duff on the instructions of the DPP. The second is that the appellant was prejudiced by a failure on the part of the prosecution to disclose to him in time for him to make use of it at the trial a handwritten statement of Marian Wallace dated the 26th of March 2012.
70. The complaint underpinning Ground No 2 is that the appellant was further prejudiced by a failure on the part of the prosecution to disclose to him in time for him to make use of them at the trial handwritten statements of Marian Wallace, Henrietta Kiss, Karen Simpson & Theresa Lyons dated 4th January 2012. Related to this is a motion brought by the appellant seeking leave to adduce these handwritten statements as new evidence in the appeal and, it follows, to be allowed to cross-examine Ms Wallace, Ms Kiss, Ms Simpson & Ms Lyons with respect to them.
71. It is accepted by the respondent that none of these documents was disclosed in time for the trial. However, Ms Helen Kealy, a solicitor in the office of the respondent, has denied on affidavit a suggestion made by the appellant in respect of the statement of Marian Wallace taken on the 5th of August 2012 that it was deliberately withheld from the defence, and contends that the failure to disclose was to due to an oversight.
72. In respect of the handwritten statement of Marian Wallace dated the 26th of March 2012, Mr Patrick Geraghty, a solicitor in the office of the respondent, has deposed on affidavit that neither the respondent nor the Gardaí were aware of the existence of this document prior to August of 2016. Finally, in relation to the handwritten statements of Marian Wallace, Henrietta Kiss, Karen Simpson & Theresa Lyons dated 4th January 2012 a solicitor for the respondent has deposed on affidavit that neither the respondent nor the Gardaí were aware of the existence of these documents prior to August of 2016.
The Statement of the 5th of August 2012
73. In relation to the first document, i.e., Ms Wallace’s statement of the 5th of August 2012, we note that this does not relate at all to the incident that occurred on the 4th of January 2012. Rather it relates to a separate incident which occurred on the 23rd of March 2012 which resulted in the appellant being charged with offence of trespass in respect of which he was tried, and ultimately acquitted.
74. The suggested relevance of the first document is as follows. Ms Wallace had made an initial statement to the Gardaí relating to the incident on the 23rd of March 2012 which formed part of a file that was sent to the DPP for directions as to whether or not there should be a prosecution. A directing officer in the DPP’s office considered that some clarification was required with respect to an assertion of belief by Ms Wallace that the appellant had disabled the electronic lock to the crèche on the occasion in question. Arising from that assertion consideration was being given to possibly charging the appellant with criminal damage as well as trespass in relation to the incident on the 23rd of March 2012. However, before making any such decision the directing officer considered it prudent to direct the investigating Garda to take a supplemental statement from Ms Wallace focusing on the basis for her asserted belief, which the aforementioned Garda Duff duly did on the 5th of August 2012. This was the statement that was not disclosed due to oversight. Having considered the contents of the supplemental statement the directing officer ultimately decided not to add a criminal damage charge. The appellant now maintains that, had he been aware of it, he could have deployed the statement of the 5th of August 2012 in cross-examination of Ms Wallace in his trial for the offence the subject matter of the present appeal to demonstrate “that the complainant was an unreliable narrator prone to making improbable complaints”.
75. The problem with this is, it seems to us, that it does not engage with the actual evidence that was adduced in support of the prosecution case, and the defence that was actually being advanced.
76. There was clear and cogent evidence from Ms Wallace and several of her staff members (Ms Simpson, Ms Lyons and Ms Kiss) concerning the events at lunchtime on the 4th of January 2012. All of these witnesses had contended that the appellant’s behaviour was aggressive, and that he was attempting by force to obtain access to the junior Montessori room where his son was. In particular, Ms Wallace had contended that the appellant had threatened to hurt her, and that he had both threatened and attempted to bite her. Ms Kiss said she had heard the appellant threaten either to hurt or to hit Ms Wallace. Both Ms Wallace and Ms Simpson said that the appellant had head-butted Ms Wallace as she resisted his attempts to open the junior Montessori room door, causing injuries to her nose including a cut from which she bled. The prosecution’s case, and the case that had to be met and defended by the appellant, was therefore crystal clear.
77. The defence advanced was as follows. Ms Wallace’s nose injury was not disputed by the defence. Rather the defence that was run was that that injury was caused accidentally in the course of the scuffle in the vicinity of the door. It was suggested that Ms Wallace had pulled the appellant causing him to lose his balance and to fall on top of her, in the course of which an accidental injury was caused to her nose. The Court notes in passing that this explanation did not, however, address the bruising on Ms Wallace’s arm which she contended was an injury also sustained by her in the course of the incident, caused by the appellant “beating my arm against the door handle”.
78. This version of events was put to each of the lay witnesses in turn, including Ms Wallace, and was rejected by them. While it was never put in terms to Ms Wallace, or to any of the other lay witnesses, that she, or they, were simply benignly mistaken in their understanding and recall of what had occurred, that was the clear import of the defence that was being run. Notwithstanding what was later stated by the appellant in the course of being cross-examined with respect to his evidence, it was never put to Ms Wallace, or to any of the other lay prosecution witnesses, by the appellant’s counsel that they had fabricated their evidence, or that they were in collusion inter se, or that they were in collusion with Ms O, and/or that they had lied in the course of their evidence. Rather in cross-examining the prosecution’s witnesses the appellant’s counsel had confined herself to putting the suggestion of accident and she did not confront those witnesses with allegations of fabrication, collusion and perjury. Moreover, the case was closed by the appellant’s counsel without express reference to the appellant’s gratuitous references to fabrication, collusion and perjury. Instead, she again rehearsed his account of what had occurred, namely that the injury to Ms Wallace’s nose had been caused accidentally and that he had not headbutted her, and she invited the jury to consider “whether you think his story might reasonably be true”, and that if so, “then you must acquit him.”
79. In the circumstances outlined it is hard to see how the undisclosed statement could have been deployed in support of the defence actually run. The defence that was being run was that the prosecution’s witnesses were simply unreliable, and that Ms Wallace and Ms Simpson in particular were mistaken in their belief that the appellant had headbutted Ms Wallace; rather, her nose injury had been caused accidentally. In so far as the appellant suggests that he could have deployed the statement of the 5th of August 2012 in cross-examination of Ms Wallace to demonstrate “that the complainant was an unreliable narrator prone to making improbable complaints”, we feel obliged to comment that this was not the defence he had chosen to run, and that in any case we fail to see how the statement of the 5th of August 2012 could have assisted him in doing so.
80. The undisclosed supplementary statement in the other case does not in fact establish that Ms Wallace was an unreliable narrator prone to making improbable complaints. Ms Wallace did not resile in any way in her supplementary statement from her earlier asserted belief that the appellant had disabled the door mechanism in some fashion. She merely, as requested by the DPP’s office, explained her basis for holding that belief, following which the directing officer concerned decided against preferring a charge of criminal damage. That it was ultimately decided not to add a criminal damage charge does not establish “that the complainant was an unreliable narrator prone to making improbable complaints”. Clearly, while the directing officer may have considered that the evidence provided in Ms Wallace’s initial statement was cogent enough to justify requesting the taking of a supplementary statement from her, he did not later regard the cumulative contents of both statements as providing sufficient cogent evidence to sustain a charge of criminal damage to the standard of beyond reasonable doubt. That he so decided cannot be deemed to be necessarily an adverse reflection on the reliability of Ms Wallace as a historian or on her truthfulness. The inability to prove a charge of criminal damage to the standard of beyond reasonable doubt may have had nothing to do with Ms Wallace’s reliability or truthfulness, but have been due to some other relevant circumstance or circumstances.
81. In the circumstances ground of appeal No 1 fails in so far as the statement of the 5th of August 2012 is concerned.
The Statement of the 26th of March 2012
82. We must next consider the handwritten statement of the 26th of March 2012. Once again, it bears remarking upon that this document does not relate at all to the incident that occurred on the 4th of January 2012. Rather it relates to the separate incident which occurred on the 23rd of March 2012.
83. It appears that on the third day after the incident on the 23rd of March 2016 Ms Wallace, for her own purposes, committed to writing her recollection of the incident which had occurred on that date. This Court has seen and considered the statement in question which is exhibited to an affidavit of the aforementioned Patrick Geraghty sworn on the 23rd of January 2017. Tellingly, the handwritten statement concludes with the remark “The guards will call over again tomorrow for statements re the latest incident”. The Court understands that the Gardaí did subsequently call and that they took a formal statement from Ms Wallace which was later disclosed to the defence in connection with the trespass prosecution arising out of the incident on the 23rd of March 2012. It appears that Ms Wallace did not disclose to the interviewing Gardaí that she had earlier made a statement for her own records. Accordingly the Gardaí, and later the respondent when her office became involved, had no knowledge of a further statement by Ms Wallace. Its existence was only discovered when, very much later, enquiry was made of Ms Wallace to know if she had any other documents relating to the incident in question or other incidents involving the appellant, which enquiry was in turn prompted by a request from the appellant to the prosecution in the present proceedings asking for permission to view the contents of a file folder which he had observed Ms Wallace to have in her possession, and to be consulting periodically, in the course of a court hearing. Once the existence of this undisclosed document (and other undisclosed documents in the said personal file of Ms Wallace relating to the incident on the 4th of January 2012, which will be dealt with in the next section of this judgment) was established, a copy was in due course furnished to the appellant.
84. While unquestionably the document in question ought to have been disclosed and a copy provided to the appellant before his trials in both matters, there is absolutely no evidence to suggest that the document in question was deliberately withheld or concealed either by Ms Wallace, or by the Gardaí or by the respondent. There was absolutely nothing wrong with Ms Wallace making an aid memoire for her own files. There were a myriad of obvious reasons why she might wish to do so, as an employer, as an insured person, as the operator of a crèche subject to statutory regulation, and as a potential witness in possible civil or criminal litigation. There is no evidence that Ms Wallace was aware that she should make the Gardaí aware that she had her own file containing a statement in addition to that or those that she that had formally made to the Gardaí. While, with the benefit of hindsight, it might have been appropriate for the Gardaí, as a matter of due diligence on their part in conducting their enquiries, to have asked Ms Wallace if she had made any independent record concerning the events in question, the fact is that they did not do so.
85. The appellant seeks to make the case that if the handwritten statement of the 26th of March 2012 had been in his possession at the time of his trial for the offence the subject matter of the present appeal he could have deployed it for the purpose of demonstrating that it was inconsistent in certain matters of detail with the formal statement(s) that she had later given to An Garda Síochána, with a view to demonstrating that she was an unreliable historian.
86. In our assessment there is no reality to this. It is rarely the case where two or more statements are made by a witness concerning an event that those statements will be identical in every detail. Frequently, details mentioned in one statement are omitted from another statement. Frequently, the witness may use different words or expressions in statements made at different times to describe of aspects of an event, or some detail of the account. These differences may or may not amount to inconsistencies sufficient to justify a suggestion that the witness is unreliable as a historian, or that he or she is being untruthful. It is certainly legitimate in the course of the defence of a criminal charge to put to a witness that he or she has made a prior inconsistent statement in relation to the incident in question, and depending on how the witness responds to that, to then suggest to the tribunal of fact, whether that be a judge sitting alone or a jury, that the witness must be regarded as either unreliable or untruthful. However, it is an entirely different thing to seek to put to a witness that he or she had made inconsistent statements at some point concerning an unrelated incident not in any way the subject of the trial at hand, and to seek to suggest that on that account the witness’s evidence in the case actually being tried must therefore be regarded as either unreliable or untruthful. Relevance requires to be demonstrated, and we consider that had the appellant been in a position to attempt any such line of cross-examination he would not have been able to establish relevance, and that the trial judge would have been obliged to instruct him to desist from that line of cross-examination.
87. It is clear that the appellant was not inhibited in any way by the non-availability of the statement of the 26th of March 2012 from effectively cross-examining Ms Wallace in support of the defence being run. His defence was that she was unreliable in her recall of events, and that she had not in fact been headbutted but had sustained her injury accidentally when she caused the appellant to fall on top of her. He was fully able to make that case without sight of the statement of the 26th of March 2012.
88. The appellant further maintains that the handwritten statement of the 26th of March 2012 “references (bottom of page 8 & page 9) the Complaint’s brother, a Garda Superintendant, seeking to involve himself in the case and decisions to prosecute, in circumstances where the defendant had previously complained to Gardaí that the Complainant had threatened him with her husband, a member of An Garda Siochana.” The appellant maintains that he could have deployed this to his advantage in the course of his defence.
89. The first thing to be said is that there was and is absolutely no evidence in this case that the complainant’s brother sought to involve himself in the matter, or in the decision to prosecute the appellant. The matters referred to by the appellant on pages 8 and 9 of the statement of the 26th of March 2012 do not in fact provide any such evidence, merely that Ms Wallace had enquired of the Gardaí by telephone on that day as to what was the up to date position with reference to her complaint arising out of the incident on the 4th of January 2012, and also with reference to her further complaint arising out of the incident on the 23rd of March 2012. She had spoken initially to a Garda Linda Byrne, who had passed her in turn to a Detective Inspector Peter Woods. Detective Inspector Woods said he would look into it. In the meantime Ms Wallace telephoned her brother Gerard, who is a Garda Superintendent and spoke to him. Detective Inspector Peter Woods subsequently called Ms Wallace’s brother to provide him with an update. Ms Wallace’s brother then called his sister back and relayed the up to date position to her. Amongst the information relayed was that a file had gone to the DPP in relation to the incident on the 4th of January 2012 but that the DPP had not yet looked at it, and so the superintendent concerned had made a recommendation that a charge under s. 3 of the Non Fatal Offences Against the Person Act 1997 should be preferred pending the DPP’s recommendation. The statement gives no indication of anything improper having occurred. We agree entirely with the submission made by counsel for the respondent that it is unremarkable and entirely understandable that Ms Wallace was in contact with her brother in the circumstances outlined by her.
90. It is a matter of no small significance that it was never suggested at the trial that Ms Wallace’s brother had improperly sought to involve himself in the matter, or in the decision to prosecute the appellant. We do not in any event consider that the statement of the 26th of March 2012 would have provided the appellant with a sufficient basis for suggesting that that was the case, or that it could have been meaningfully deployed to that end. The appellant was already in a position to pursue the issue of the complainant’s connection to the Gardaí at his trial and his counsel did in fact cross-examine Ms Wallace about this. It was put to Ms Wallace that “you said you would get your husband, who is a guard, to sort MW out”.
91. We are satisfied that Ground of Appeal No 1 also fails in so far as the statement of the 26th of March 2012 is concerned.
The Statements of the 4th of January 2012.
92. In similar fashion to the statement made by her on the 26th of March 2012, Ms Wallace made a handwritten statement for her own file on the 4th of January 2012 in respect of the incident the subject matter of the present appeal. She also requested Ms Simpson, Ms Kiss and Ms Lyons to provide her with their statements as to what had occurred and they did so and she retained them on file. Ms Wallace and the other three staff members all subsequently made formal statements to An Garda Síochána. However, as in the case of the statement of the 26th of March 2012, the Gardaí were not made aware, and did not become aware until long after the trial herein, that all the witnesses concerned had on the 4th of January 2012 separately provided statements for Ms Wallace’s file. Once again, while it is regrettable that this occurred, there is nothing to suggest that the statements in question were deliberately withheld or that there was conscious and deliberate non-disclosure.
93. The appellant suggests that had he been aware of the existence of these statements he could have deployed them to his advantage in cross-examining Ms Wallace, Ms Kiss and Ms Simpson. He points to what he contends are inconsistencies between what these witnesses said in their handwritten statements of the 4th of January 2012 and what they said in their later statements to the Gardaí. It is proposed to deal with this in more particularity in a moment.
94. Before doing so, however, we note that Theresa Lyons evidence was given using the s.21 procedure. The appellant did not object to the reading of Ms Lyons statement using the s.21 procedure, with the result that there was no cross-examination of her evidence at all, and he has not sought to suggest anywhere in his submissions that he would have objected and insisted on her viva voce evidence had he been aware of the existence of her handwritten statement of the 4th of January 2012. By the same token, his submissions do specifically identify, and seemingly place reliance on, a number of alleged differences or inconsistencies between the statement read into the record and the handwritten statement of the 4th of January 2012.
95. It is proposed to identify and comment upon the individual alleged inconsistencies that the appellant contends he was deprived of the opportunity of pursuing or exploiting in cross examination of the witnesses in question by quoting directly from the appellant’s written submissions. Having done so, this Court will then address the issue in the round.
Re Marian Wallace
96. The appellant has asserted:
“The complainant gave evidence that she never touched the accused (Day 1, page 15, line 27 & page 16, line 2 & page 19, line 21) but in the undisclosed statement (page 2, middle, line 10) says “I then managed to move MW out the door and close it”. In evidence this was denied (Day 1, page 26, line 5-10).”
The evidence given by Ms Wallace, and what she says in her undisclosed statement, are by no means inconsistent. While she indicates in the undisclosed statement that she “managed to move MW out the door”, there is nothing in it to suggest that that was done by means of actual physical contact with the appellant such as pushing or manhandling as opposed to some form of shepherding or leading.
97. The appellant continues:
“The complainant goes on to state, “He then tussled with me and fell over his legs onto the ground” (page 4, two-thirds mak). Further, “I caught his arm and he turned quickly and unbalanced a second time [causing him to fall]” (page 4, middle). The reference to catching his arm has clearly been withheld from the defence. In her oral evidence Marion Wallace stated that she had no involvement in the defendant falling over, and “no contact with him” (Day 1, page 16, line 2).”
Contrary to what is suggested there is no inconsistency here. The complainant’s statement in her evidence at Day 1, page 16, line 2 that she had no contact with the defendant was in response to a question as to whether, in respect of the first time he fell, she had in any fashion pushed him to the ground. The exact exchange was as follows:
“Q. In terms of Mr W, had he at any stage fallen or do you recall anything like that?
A. Not at that stage.
Q. I see?
A. He went then to get back to the door and he turned quickly and he fell over his own, you know, it's difficult after him to get around and he fell over his feet and landed on the ground.
Q. I see. Just to clarify, did you in any fashion push him to the ground or --?
A. No.
Q. -- do anything like that?
A. No, I had no no contact with him.”
98. The reference to catching the appellant’s arm relates to a second occasion when he became unbalanced. The appellant by inserting the words in brackets [causing him to fall] appears to maintain that this was also the occasion on which he fell for the second time. It is true that the detail about catching the appellant by the arm appears in the undisclosed statement, and not in any of the later statements made by Ms Wallace to the Gardaí, or in Ms Wallace’s evidence to the jury. This is not an inconsistency, rather a failure to include in later accounts a detail given in an early account. However, the Court notes that it was put in terms to Ms Wallace at the trial that: (a) she had pulled and dragged the appellant from behind causing him to fall on top of her, and she denied that; and (b) she had injured herself in consequence of that, which she also disputed. On the contrary Ms Wallace was adamant that she was already injured at the time of the second fall having been headbutted by the appellant ever before that. Ms Wallace accepted in cross-examination that “I did put my hand on him when he went to the door the third time”, but said that he didn’t fall after this, and that this was after he had fallen a second time.
99. While it might have been suggested in cross-examination of Ms Wallace, if the appellant had had the undisclosed statement, that her acknowledgment of catching him by the arm was consistent with his case that she had pulled and dragged him from behind causing him to fall, Ms Wallace’s acknowledgment requires to be read in its full context. When it is read in context it is clear that Ms Wallace was in fact attributing the cause of the appellant’s fall, not to the fact that she had caught his arm, but to the fact that he immediately thereafter “turned quickly and unbalanced a second time”. It is hard in all the circumstances to see how the defence case could have been greatly advanced by the ability to put to the appellant that she had acknowledging catching the appellant’s arm just before he fell the second time. The case was made at the trial that Ms Wallace had caused the appellant to fall and that it was the appellant falling on top of her that had caused an accidental injury to Ms Wallace’s nose. There was a clear conflict in the evidence, and the detail at issue does not serve to resolve that conflict. While Ms Wallace might legitimately have been required in cross-examination to explain the omission of the detail given earlier from her later statements, and from her evidence before the jury, we do not consider that inability of the appellant to cross-examine the appellant on that discrete point could have given rise to a miscarriage of justice. The jury would still have been faced with a compelling body of incriminating evidence.
100. The appellant further continues with respect to Ms Wallace’s undisclosed statement:
“The Complainant makes a claim of being sexually assaulted (page 2, line 6, added in) which is not corroborated by any other person and was in fact removed from the Garda Statement.”
101. Ms Wallace does not in fact make any claim of sexual assault. While she states in the undisclosed statement that “he pushed me placing his hands on my breasts”, she told the Gardaí that “he pushed me by putting his two hands against my chest”, and she told the jury that he had “pushed me by putting his two hands against my chest”. While there is mention of contact with her breasts in the undisclosed statement it is clear that she did not seek in any way to impute a sexual motive to the appellant and that she was merely describing where upon her body she had been pushed in the course of an act of aggression by the appellant.
102. The appellant continues:
“The phrase “Karen returned as he was head-butting me” (page 4, top) appears to have been added in at a later point in time in the margins with a different pen.
The phrase “after she had seen him head butting me” also appears to have been added in with a thicker pen (page 5, top, line 5).
In terms of the central allegation the jury was asked to deal with (head butt) the complainant states that the defendant “threw a punch which missed me followed by a head butt to my face” (top of page 4). All references to throwing a punch were removed from Marion Wallace’s Garda Statement and her oral evidence (Day 1, page 14, line 29). Ms Karen Simpson makes no reference to having seen a punch that missed in her statement, despite claiming to have been an eye witness to a head butt assault. This is highly inconsistent on the central issue before the jury.”
103. The appellant is correct in pointing out that a number of details appear to have been added to the undisclosed statement at some stage after the initial account was written out. Moreover, the fact that a different pen may have been used would tend to suggest that the additions may not have been made immediately by the author, e.g., following a read back straight away upon its completion. However, be all of that as it may, this was a statement being made by the witness for her own records and the fact that she may have added additional details occurring to her some time later does not, without more, constitute evidence that something inappropriate or sinister was being engaged in. While the appellant has hinted at witness collusion in his testimony before the jury, and has asserted, in an affidavit sworn by him in support of an earlier motion in these appeal proceedings, a belief that Ms Wallace was “willing to fabricate wild, unsubstantiated and malicious complaints” about him and that she bore “a high degree of malice” towards him, he has not expressly sought to make the case that the additional details added to Ms Wallace’s undisclosed statement were embellishments in furtherance of any such agenda. While the appellant is correct in saying that this undisclosed statement contains the only reference at any time by the complainant to the throwing of a punch by the appellant just before the alleged head-butting, one would not expect the reference to that punch to have been omitted from the later statement to An Garda Síochána, or from the witness’s testimony to the jury, if fabrication or embellishment was afoot. However, that detail was omitted.
104. It bears remarking upon that the appellant does not attempt to make the case in his submissions that he could have run a different defence if he had had access to this material. Rather the case that he makes, which falls to be considered in the context of the defence that was actually run at trial, is that the omitted evidence, viewed objectively, might have had the effect of creating a reasonable doubt in the mind of the jury. That proposition needs to be subjected to some critical analysis.
105. The defence case was that the prosecution witnesses were unreliable in their recollections, that he had not in fact assaulted Ms Wallace and that her injuries were in fact caused by accident. If the appellant had had sight of the undisclosed statement it would certainly have been open to him to ask Ms Wallace about the additional matters that appear to have been added to the undisclosed statement, and she might or might not have been in a position to provide a satisfactory explanation.
106. However, be that as it may, the first matter to which this complaint refers, namely that “Karen returned as he was head-butting me” is reproduced in substance in Ms Wallace’s later statement taken by the Gardaí where she states: “[O]ne of the creche workers Karen had just come around the corner as this happened and said to me that I was bleeding and went to get a tissue”. Furthermore, the complainant gave evidence to the jury that “at that stage there was blood coming from my nose and Karen had arrived there --”. The complainant has therefore displayed ostensible consistency throughout.
107. A similar point might been made in relation to the second matter to which this complaint refers, namely that the words “after she had seen him head butting me” were interpolated into, or added to the end of, a sentence in the undisclosed statement which refers to Ms Wallace receiving a tissue from Ms Simpson.
108. The most the appellant might have achieved using the undisclosed material would have been to seek to suggest that these ex post facto additions to the early aide memoire created by Ms Wallace were indicative of some uncertainty on her part as to a matter of detail. It might have been suggested that because, seemingly, she did not initially mention Karen Simpson’s presence, and the fact that Karen had ministered to her after she had sustained her nose injury, when she first committed pen to paper, but later purported to recall it, that she should be regarded as unreliable on those points of detail.
109. However, regard needs to be had to the overall narrative. These additions with respect to points of detail were made very early in the process, and before any statement was made by Ms Wallace to An Garda Síochána. There has been no change in respect of anything said in the course of the Garda investigation. The appellant was on full notice in advance of the trial concerning what Ms Wallace’s intended testimony would be regarding Karen Simpson’s presence at the scene. Clearly from a very early stage she was saying that Karen had come on the scene at or about the time of the head butting, and that Ms Wallace understood her to have seen the head-butting. Moreover Ms Simpson gave evidence herself as to what she encountered and saw and was rigorously cross-examined. We do not see how in the circumstances, the inability of the appellant to cross-examine Ms Wallace with respect to the changes she made to her earliest statement could have meaningfully prejudiced the appellant in making his case that she was unreliable in her recollection of events, that he had not in fact assaulted Ms Wallace and that her injuries were in fact caused by accident. The primary evidence as to what happened came from Ms Wallace. She was available to be cross-examined and was rigorously cross-examined. She was consistent at all times as to what she said had happened in terms of being assaulted by the appellant. The issues as to whether Karen Simpson might have seen what happened, and the exact point at which she arrived, or at which Ms Wallace became conscious of her presence, are matters of detail in relation to just one aspect of the overall narrative. Even if the jury could have been persuaded that she was unreliable on these details that would not serve to impugn the reliability of her evidence in relation to the core allegation.
110. At his trial Mr W was in a position to challenge Ms Wallace as to the fact that she was headbutted, and Ms Simpson as to her capacity to see him head-butt Ms Wallace. He did so and also challenged Ms Wallace as to Ms Simpson’s capacity to see this. He also challenged both Ms Wallace and Ms Simpson as to how the injury in question was inflicted, asserting that it was not a headbutt but an accidental injury that arose when Ms Wallace pulled him to the ground. He further alleged that Ms Simpson had assisted Ms Wallace in pulling him to the ground. We are not therefore persuaded that the inability of the appellant to cross-examine Ms Wallace with respect to the changes she made to her earliest statement would have given rise to any injustice having regard to the overall run of the case and the defence actually being run.
111. The appellant has further complained:
“There is no reference to a diagnosis of a broken nose after consulting her GP (bottom of page 6 and page 7), while at the jury trial the DPP ran a distinct case that the complainant suffered a broken nose and relied upon a GP’s report.”
It was open at all stages to the appellant’s counsel to cross examine Ms Wallace concerning when she discovered she had the alleged broken nose, and the basis for her belief in that regard. If the appellant had had the undisclosed statement the high water mark of what he could have put to her was that she did not mention in it in terms that she had sustained a broken nose, and she might have been asked as to what specifically she had been told by her GP. A “broken nose” is however a layman’s term and the jury would have been entitled to also have regard to the evidence, which was not objected to at the time, as to what Professor Angus Curren had reported to the GP, namely that Ms Wallace “did have a slight deviation of her nasal bridge with a mobile fragment anteriorally.”
Re Karen Simpson
112. The appellant has asserted:
“The reference to giving Theresa Lyons an instruction to keep the defendant out of the room, to wait outside the room and to lie to the parent and say that the child had not finished his dinner (line 8-10) does not appear in the later statement. This appears as pre-meditated plan on the part of crèche staff. It also appears the Deputy Manager gave instructions to Theresa and Henrietta (not referenced in their statements and in her later Garda statement). This should be read alongside the evidence of the complainant (Day 1, page 26, line 10-21)”
113. The appellant is correct in saying that Ms Simpson’s undisclosed statement contains certain details as to instructions given by her to other staff members that she did not include in her later statement to An Garda Síochána. However, none of this speaks to the core issue as to whether or not the appellant assaulted Ms Wallace causing her harm. Moreover, as these instructions were out of court statements not made within the hearing of the appellant, and before any physical altercation had begun, evidence of them could not have been led in any event as they were inadmissible hearsay.
114. The appellant further complains:
“The phrase “Marion was blocking MW from entering the room” (page 1, 9 lines up from bottom) has been removed in the second statement.
The critical passage appears to have been rewritten (middle of page 2) which corresponds with the Complainant also rewriting critical passages.
In her first statement, Ms Simpson’s states, “MW’s head went back and Marian was bleeding from the nose”. There is no use of the word ‘headbutt’ in the first undisclosed statement. This earlier version reads like observing an accidental collision rather than a deliberate assault. This is at odds with Karen Simpson’s later Gardai statement, page 2, line 3, “Both MW and Marion were facing each other and this is when I saw him headbutt her”.
In evidence Karen Simpson stated (Day 1, page 37, line 13) “and I saw MW’s head go forward and then … back and headbutted Marian”.”
115. Again the appellant is correct that Ms Simpson does not repeat in her statement to An Garda Síochána the detail that when she first went up the stairs she found Ms Wallace to be blocking the appellant from entering the room. However the appellant was not denied the opportunity either the jury learning of that detail, or of cross-examining Ms Simpson on that detail, because evidence of it was in fact given before the jury by Ms Simpson, in the following exchange:
“Q. Well, can you tell the jury what, if anything, then you saw or heard of the interaction between Ms Wallace and ?
A. Okay. Well, I went back downstairs again, I think there was somebody at the door with something, I had to go to deal with that. And then one of the girls in the room asked me to come upstairs so I came upstairs and Marian was in front of the door and Mr W was trying to get into the room to get R.
Q. I see. And did you hear anything of what passed between them? Again take your time, please?
A. Yes. He was he was kind of really angry and aggressive and, you know, saying that he's got to get his child, he needs to get his child and, ‘You're kidnapping my child,’ and kind of all this aggression …”
116. The suggestion that the critical passage was re-written appears to be based on the fact that certain additional matters appear to have been added by the author to the original narrative account. The handwritten page contains the following interpolations: Just after the sentences in which Ms Simpson says “I then went upstairs. Couldn’t find MW” and before what was originally the next sentence that reads “Henrietta then came to the office and asked me to go upstairs with her”, the following has been inserted: “Theresa - into staff room. - told her Theresa go back into junior Monties - with Henrietta -> Marian came in & went upstairs - Kim told me he was in the toilet.”
117. While there is no disputing that these afterthoughts appear to have been interpolated into the original handwritten draft by the author, it is unclear whether they were inserted at the time or ex post facto. However, the same pen appears to have been used, which would tend to suggest that it was at the time e.g., following a reading over immediately after initial completion.
118. Be that as it may, the interpolations do not appear to this Court to affect any critical passage contrary to what is suggested by the appellant. The critical passage must surely be that in which Ms Simpson describes witnessing the assault. However the material added does not relate to that but rather deals with peripheral events occurring ever before the appellant had even encountered Ms Wallace on this morning. We are not persuaded that even if the appellant had had Ms Simpson’s undisclosed statement he could have exploited the interpolations contained therein in any significant way to the benefit of the defence.
119. The appellant then goes on to complain:
Karen Simpson’s evidence was already inconsistent with the Complainant’s as she stated she saw the back of the Defendant’s head contact the Complainant, not the front as the Complainant has stated. Karen Simpson account at (Day 1, page 37, line 13) should be contrasted with Marion Wallace’s account (Day 1, page 14, line 28), which already differed in both actions and verbals.”
120. It is true that the undisclosed statement does not use the word head-butt. However, what Ms Simpson actually said was: “When I came back upstairs, as I turned the corner MW’s head went back, after he hit Marian - and Marian was bleeding from the nose. MW said to Marian “Look what you done, you have hurt yourself”. Accordingly, while the word head-butt was not used Ms Simpson has been saying from the earliest stages that Ms Wallace was struck and that in the immediate aftermath of this she was bleeding from the nose.
121. The appellant was not in any way inhibited in his defence by not having this statement. He was able to, and did, suggest to Ms Simpson that there had been no headbutt and that the nose injury was accidentally caused. We agree with the submission by counsel for the respondent that this undisclosed statement only had the potential to further incriminate the appellant.
122. Finally with respect to Ms Simpson’s undisclosed statement, the appellant complains:
“Karen Simpson alleges she saw the Defendant kick the Complainant in circumstances where the Complainant made no such allegation and rebuttal evidence could have been called to demonstrate the defendant lacked the physical capacity to kick anyone.”
123. The first thing to be said is that Ms Simpson did not give any such evidence before the jury, so even if the undisclosed statement had made such an allegation the appellant was not prejudiced. However, the complaint in fact somewhat overstates what is contained in the undisclosed statement. What Ms Simpson in fact said was:
“With Theresa inside the Junior Monties room MW was getting more aggressive, saying ‘you are kidnapping my R.’ He (MW) was kicking, pushing Marian to try to get in the room.”
124. While Ms Simpson did suggest that the appellant was “kicking”, and that he was “pushing Marian” her statement does not suggest that any “kick” had connected with Ms Wallace. However, as already stated the jury heard nothing about a kick or kicking. There was therefore no need to call rebuttal evidence. While it might have been open to the appellant to seek to focus on this particular passage of the undisclosed statement, if he had had access to it, in cross examination to suggest that the witness was prone to exaggeration or overstatement, we consider it would have been a risky strategy in terms of the limited benefits it might have yielded and we do not consider that the inability to do so was so far reaching in its implications as to have led to any miscarriage of justice.
Re Theresa Lyons
125. The appellant has asserted:
“The reference to “buying time until Marion arrived” has been removed from her statement by the time it becomes a Garda Statement. (Line 3)
“His tone got louder” has been added in to the Garda Statement (line 10) which did not appear in the earlier statement.
The phrase “Marion tried to usher him out the door” has been removed from the statement by the time it becomes Garda statement. (Line 11)
The phrase, “I attempted to leave the room with R when he came after us. I walked back into the room with R and closed the door” appears in the first statement but not the Garda Statement. (Line 14)
The phrase “He was wrestling with Marion [outside the room]” has been removed from the Garda statement. In the Garda statement this has replaced by “I couldn’t really see what was happening [outside the room] but I could see Marion pinned against the wall”. (Line 18 near bottom)
The passage “He kept repeating your (sic) trying to kidnap my child. He also said he was the legal guardian.” (last two lines) have been replaced by “MW [saying] you’re going to break my arm”.
The witness has also added in a number of other verbals (10 in total) which did not appear in the first statement (contains one). Taken together the tone of the later statement paints the Defendant as being much more aggressive. An allegation of ‘being in fear’ only appears in the second Garda statement.”
126. The gravamen of this complaint appears to be that the undisclosed statement is not word for word identical to the later statement made to An Garda Síochána. It is complained that the later statement made to An Garda Síochána contains somewhat more detail than the earlier statement, but also that some details mentioned in the undisclosed statement are not repeated in the later statement. What the appellant does not do, however, is to indicate how he was prejudiced, and how he might have exploited the differences of which he now complains had he known of them. It has to be borne in mind that the appellant seemingly had no problem with the statement of Ms Lyons contained in the Book of Evidence being read to the jury using the s. 21 procedure. He would have been entitled under relevant statutory provision to object to that statement being read, but seemingly did not do so. He has not suggested that the contents of the earlier statement, of which he is now aware, would have caused him to adopt any different strategy.
Re Henrietta Kiss
127. The appellant has asserted:
“The phrase "R's dad didn't want to leave without his son" in the first statement (line 8) has been replaced with "He reacted strangely to this and just immediately became aggressive towards Marion." (line 8)
The allegation that she heard 'continuous shouting and aggression' by the defendant only appears in the second statement (page 2. line 4).
The claim that she was keeping the door shut because "she was worried for the safety of the children" (page 1, line 14) appears it the Garda Statement but in the earlier statements the import is that she has been told to keep it shut by the Complainant and Deputy Manager (based on her statements).
The claim that she saw the complainant "holding her hands up to protect her face" (page two, line 2) which appeared in the Garda statement does not appear in the earlier statement.”
128. Once again, the gravamen of this complaint appears to be that the undisclosed statement is not word for word identical to the later statement made to An Garda Síochána. It is again complained that the later statement made to An Garda Síochána contains somewhat more detail than the earlier statement, but also that some details mentioned in the undisclosed statement are not repeated in the later statement. The appellant does not indicate how he might have sought to exploit these differences in cross-examination of Ms Kiss had he been in possession of her undisclosed statement. Indeed there would seem to be little reality to the complaint in circumstances where Ms Kiss does not claim to have seen the actual alleged assault, but merely saw some of the tussle leading up to it in the course of which she heard the appellant say “I’m going to hurt you”, or “I’m going to hit you” and observed Ms Wallace’s nose to be bleeding in the aftermath, and to have heard her saying to the appellant “[y]ou broke my nose”. All of this was in the undisclosed statement (with the exception of the alternative threats “I’m going to hurt you”, or “I’m going to hit you” - in the undisclosed statement Ms Kiss recalled the words as being “I’m going to hurt you and bite you”). Ms Kiss was cross-examined and it was put to her that the appellant had not made threats of any kind, but Ms Kiss was adamant that he had threatened Ms Wallace although she was somewhat unsure of the exact wording of the threat.
129. We are satisfied in the circumstances that the appellant was not prejudiced in his defence by not having had sight of Ms Kiss’s undisclosed statement before the trial.
Overall Impression
130. This Court has considered, in the case of each of the witnesses in question, the undisclosed statements, the formal statements made to An Garda Síochána, and the testimony actual given before the jury. None of the undisclosed statements contains a dramatic inconsistency in the true sense of containing something radically different from what was said on another occasion. There are some differences certainly in terms of the detail provided, and in the way in which minutiae of the event are described or characterised; but the fact that in describing the same event on two or more occasions different phraseology or adjectives are used, or that some point or points of detail are either omitted or added, does not render the statements in question necessarily inconsistent.
131. We are satisfied that the appellant in complaining about the non-disclosure of the statements of the 4th of January 2012, which we agree was regrettable, has not engaged with the evidence actually given at the trial and demonstrated how the undisclosed material might realistically have made a difference to the outcome. He has not said he would defend the case differently had he known about this material, nor has he been able to persuade us that it discloses the sort of radical or dramatic inconsistency or inconsistencies that might have fatally undermined the testimony of one or more of the relevant witnesses.
132. We are not therefore disposed to uphold the general complaint in ground of appeal No 2 that non-disclosure of the statements of the 4th of January 2012 resulted in unfairness to the appellant and consequently rendered the trial unsafe and unsatisfactory. We dismiss ground of appeal no 2.
The Motion to Adduce New Evidence
133. It is convenient at this point to dispose of the concurrent motion to adduce new evidence, i.e., to be allowed to further cross examine Ms Wallace, Ms Simpson, and Ms Kiss, and to cross-examine Ms Lyons, with respect to the undisclosed statements of the 4th of January 2012.
134. While the Court is empowered by statute to receive new evidence in an appropriate case, and there is no dispute about that, in The People (Director of Public Prosecutions) v O’Regan [2007] 3 IR 805 the Supreme Court considered the criteria according to which the discretion to grant leave to adduce new or additional evidence ought to be exercised and endorsed those previously commended by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Willoughby [2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005). Giving judgment in the Supreme Court in O’Regan’s case, Kearns J, (with whom Murray CJ, Geoghegan J, Fennelly J, and Macken J all agreed) stated (at para 69):
“Having reviewed both the Irish authorities cited above and a number of English authorities, the court [i.e.,the Court of Criminal Appeal in Willoughby’s case] considered it could formulate principles appropriate to an application to introduce new or fresh evidence in the Court of Criminal Appeal as follows at pp. 21 and 22:-
‘(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.
(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.
(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.’ ”
135. We are satisfied that in the present case the appellant has not demonstrated that the new evidence he proposes should be adduced, and his proposed cross-examination of Ms Wallace, Ms Simpson, Ms Lyons and Ms Kiss with respect to it, might have a material and important influence on the result of the case. Moreover, in so far as he suggests that the undisclosed statements cast doubt on the credibility of the testimony given by those witnesses at the trial we are not persuaded that that is the case having regard to the entirety of the evidence.
136. We therefore refuse to grant the relief sought in the appellant’s motion.
Ground of Appeal No 3
137. The appellant has characterised the matters the subject matter of this ground of appeal as relating to “various failures in the Garda investigation”.
Re Karen Simpson’s Claim of Corroboration
138. The appellant says that the Garda failure to properly detect and disclose the undisclosed statements of the 4th of January 2012 had an extra consequence of failing to give a lead to other evidence. In particular this was an egregious failing in circumstances where the claim by Ms Karen Simpson that she witnessed a headbutt assault was always in dispute. The appellant claims that Ms Simpson never made this claim to the two Gardaí, who attended on the day in question and interviewed crèche staff, on the same day as the accused was formally interviewed. Ms Simpson only made this claim in her statement to Gardaí made on the 10th of January 2012, disclosed to the defence six months later. The appellant says that given that his evidence was that Ms Simpson was in a different part of the building making a series of phone calls while a verbal altercation took place between the complainant and the appellant, the opportunity to investigate Ms Simpson's claim (by checking phone records and taking statements from other staff as to the whereabouts of Ms Simpson) was lost.
139. In response counsel for the respondent disputes that there was any evidence that a formal Garda statement was taken from Ms Simpson before the 10th of January 2012, although she may have been spoken to by Gardaí on the day of the incident. The respondent submits that the appellant’s assertion that that he was denied the opportunity to obtain useful evidence is “remote and fanciful” and submits that the phone records could not possibly prove that Ms Simpson herself was in another part of the building. Moreover, her own evidence was that she went to another part of the building to make phone calls so it is clear there was no evidential deficit. The appellant was in a position to cross-examine the relevant witnesses who were present as regards Ms Simpson’s whereabouts, did so, and was convicted by the jury. There was no deficit arising either from the investigation or otherwise. The jury was best placed to determine the honesty and reliability of the respective witnesses and did so, convicting the accused.
140. We agree with the respondent’s submission that his assertion that he was denied the opportunity to have procured relevant telephone evidence is remote and fanciful.
Unfairness in the Location where Witness Statements were Taken
141. The appellant has submitted that the failure of Gardaí to take witness statements in a location away from premises controlled by the complainant resulted in unfairness. He says there has been obvious conflation between the evidence of various crèche witnesses, who assert that they saw and heard things, not in their original statements, but sometimes appearing in other witnesses’ statements caused by the Gardaí’s six day delay in taking statements.
142. Responding to this, counsel for the respondent makes the obvious points that the appellant failed to identify and point out the alleged “obvious conflation” in the course of the trial. Moreover, he had the capacity to cross-examine all witnesses at the trial as to such conflation if he believed it to exist. However, he did not do so. We think these are points well made. Moreover, there was nothing irregular about the Gardaí interviewing material witnesses on the crèche premises. While the appellant may have hinted in his own evidence that he harboured a belief concerning witness collusion, that case was never put to any witness at the trial.
Alleged “cross-contamination of witnesses evidence during the hearing”
143. The appellant says there was unfairness because Gardaí and prosecution staff failed to ensure witnesses did not discuss their evidence outside of the court room, and in particular to ensure separation between the complainant and her employees who were witnesses. Moreover, the complainant says Ms Kiss, an employee of the complainant, acknowledged changing her evidence during cross-examination.
144. In reply the respondent says the witness contamination point was never raised during the trial, and accordingly the appellant should not be permitted to raise it on appeal having regard to the decision in The People (Director of Public Prosecutions) v. Cronin (No 2) [2006] 4 IR 329.
145. In relation to Ms Kiss’s evidence the respondent acknowledges that the witness accepted that certain parts of her oral evidence were not explicitly referred to in her statement. It is submitted that this happens in almost every trial and does not mean that someone has “changed” their evidence, much less indicate that they have done so on foot of discussions with other witnesses. The respondent invites this Court to consider whether the “changes” in question were of significance (it appears they relate to whether the pushing took place in front of the children or in the corridor and whether Mr W had said “I’m going to hit you” or “I’m going to hurt you”).
146. The Court agrees that an issue of alleged witnessed contamination cannot now be raised in circumstances where it was not raised at the trial. We also are in agreement with counsel for the respondent that a fair analysis of Ms Kiss’s entire testimony does not support the suggestion that she changed her evidence, or that her testimony was influenced by another person or persons.
Failure to Disclose Meetings between Gardaí and the Complainant and Witnesses
147. The appellant asserts there was a failure by Gardaí to disclose meetings between Gardaí and complainant/witnesses prior to the trial, cited by Henrietta Kiss in her evidence.
148. The evidence referred to arises out of the following exchanges during the cross-examination of Ms Kiss:
“Q. Now, I'm going to put certain questions to you. You had a briefing. Between the date of this incident and the date you made your statement to the guards there was a briefing with Ms Wallace?
A. Correct.
Q. Isn't that correct?
A. Can you --
Q. You had a briefing --?
A. -- explain what's that mean, briefing?
Q. There was a meeting --?
A. Yes.
Q. -- there was a meeting --?
A. Oh yes.
Q. -- a briefing in relation to this incident?
A. Yes.
Q. Isn't that correct?
A. A meeting with the gardaí?
Q. No, with Ms Wallace. Before you made the statement that you made to the -- there was a briefing?
A. No, I had a meeting with the gardaí.
Q. And did you have -- you weren't part of this meeting with Ms Wallace?
A. No.
Q. Now, you made a statement to the guards shortly after this incident; isn't that correct?
A. Yes.”
149. In response, counsel for the respondent has submitted that it is obvious that Gardaí had to meet with witnesses in order to take statements and there was no evidence of anything beyond that taking place. In any event it is clear that this issue was not further pursued by counsel for the appellant at trial. This issue was therefore not of any substance then nor is it now.
150. This Court agrees with counsel for the respondent that there is no evidence of anything improper having taken place, and in the absence of any suggestion to the contrary having been made at the trial the appellant should not be permitted to do so now.
151. In circumstances where we are not disposed to uphold any of the complaints on which ground of appeal No 3 is based, we also dismiss ground of appeal No 3.
Ground of Appeal No 4
152. The complaint under this ground of appeal is characterised as “embellishment of evidence by prosecution resulting in unfairness” and the complaint in that regard in the original grounds of appeal was confined to an alleged embellishment of the evidence of injuries. We note that counsel for the respondent correctly points out in his written submissions that the re-formulated grounds seek to expand this ground of appeal well beyond the original ground, and to include other alleged embellishments. The respondent complains that at no time has the appellant sought, or received, leave to amend his original grounds of appeal to include these new matters. Moreover, the appellant has offered no explanation for not having done so. The objection was made clear in the respondent’s written submissions filed well in advance of the opening of the appeal hearing. Despite this the appellant brought no motion to amend his original grounds. The respondent is correct and in the circumstances we are only prepared to entertain this ground in the limited terms in which it was originally pleaded.
153. The complaint as originally formulated was that prosecuting counsel embellished the medical reports by reading them out to the jury and adding his own comment, “a broken nose in any other words”. It was submitted the term “broken nose” was not used in any medical report and the prosecutor exaggerated the case for harm in circumstances where the jury was not provided with that medical report or medical opinion evidence as to what constitutes a “broken nose” in circumstances where the mark on the complainant’s nose cleared in 3 days.
154. We consider there is no reality whatever to the complaint made. We have already commented that the term “broken nose” is not a medical term. Moreover, from our experience of everyday life we are readily prepared to take judicial notice of the fact that the expression “broken nose” is common parlance amongst non-medically qualified persons for a deviated nasal septum. However, it is not correct to say there was no medical evidence. The GP’s report was introduced by way of the s.21 procedure and therefore formed part of the body of evidence before the jury. It indicated that x-rays had revealed “minor deviation of the nasal septum to the right side”, and that a specialist opinion had been received by the GP to the effect that Ms Wallace “did have a slight deviation of her nasal bridge with a mobile fragment anteriorally.” There is therefore no substance whatever in the suggestion of prosecution embellishment of the evidence of injury.
Ground of Appeal No 5
155. The complaints forming the basis of this ground of appeal are twofold.
156. First it is suggested that the jury may have been confused by possible differences in wording between the form of the initial charge as preferred (which the appellant suggests charged “a headbutt causing harm”), and in respect of which a District Court subsequently declined jurisdiction; and the charge in respect of which the appellant was returned for trial to the Circuit Criminal Court which, as was reflected in the indictment, pleaded that the appellant had “assaulted one Marion Wallace causing her harm” and which did not particularise any particular form of violence, and specifically a headbutt, as constituting that assault causing harm. The appellant further attaches significance in that context, although it appears to us to be a factor that if anything weakens the point that he makes, that in his opening speech counsel for the prosecution said that Ms Wallace would say that “Mr W headbutted Ms Wallace” and that “[t]hat is the core of the allegation”.
157. Secondly, the appellant suggests that the jury may also have been confused in circumstances where they heard evidence of multiple possible instances of assault, and of assault causing harm. He makes the point that the jury heard evidence of allegations of assault without harm alongside allegations of assault causing harm, in two locations (a crèche room and a corridor) over a 25 minute period. The prosecution led evidence contained allegations of: i) intentional pushing (not causing harm) [in a crèche room]; ii) intentional banging or depressing the complainant's hand on a door handle causing bruising (causing harm); iii) an intentional headbutt (causing harm); iv) reckless pushing [in a corridor] (causing no harm); v) deliberate pushing [in a corridor] (causing no harm); vi) reckless injury to the complainant's arm; and vii) of a reckless clash of heads.
158. The appellant suggests that the jury were given no, or alternatively insufficient, assistance as to how to unravel this knot. In particular it is suggested that following a jury question the trial judge erred in law during the re-charge by not properly distinguishing allegations of assault without harm from allegations of assault causing harm, or by not directing the jury to disregard the former. When the jury sought clarification of the definition of assault the trial Judge erred in law by giving them both the definition of assault causing harm and by further giving them the definition of assault.
159. In relation to the first complaint, the respondent points out that no objection was raised with respect to the form of the indictment at the trial, or as to any want of adequate particularisation. We are not disposed in those circumstances to entertain the complaint now being made, having regard to the decision in The People (Director of Public Prosecutions) v. Cronin (No 2) [2006] 4 IR 329.
160. In relation to the second complaint we note the respondent’s reply to the appellant’s suggestion of possible jury confusion, which is that it was clear to the jury that the appellant was facing only one charge, namely section 3 assault, and that the core allegation underpinning that charge was that the appellant had head-butted Ms Wallace. The respondent also makes the point that the trial judge was not requisitioned with respect to his re-charge in response to the jury’s question.
161. We have considered the judge’s charge and are satisfied that it was more than adequate and could not have given rise to the suggested confusion. Moreover, it was made clear to the jury that the case was all about the alleged headbutt. There is no substance to the appellant’s complaint that the jury should have been told to ignore other possible instances of assault, both those possibly involving harm and those not involving harm. The evidence relating to these was clearly relevant. These occurred in the course of a single event that formed in reality a continuum that was not to be artificially parsed and dissected. It is clear to this Court that once the appellant had manifested violence of any sort following Ms Wallace’s statement in the junior Montessori room that she would like to speak to him in the office, the various stages through which the incident escalated thereafter, culminating in the injury to the appellant’s nose, were in truth all part of the res gestae of a single incident or event. There is simply no basis for an apprehension that the jury members were in any way confused as to what they were deliberating on.
162. In the circumstances we also dismiss Ground of Appeal No 5.
Ground of Appeal No 6
163. The complaint underpinning this ground of appeal is characterised as relating to “recklessness and attending the crèche”.
164. The appellant contends that the prosecutor relied heavily on the assertion that the accused had no legal right to remove his son from the crèche, and asserted that the accused was reckless in attending the crèche. He went as far as to say to the jury that "[the complainant] has a moral as well as a legal obligation to ensure that a child is only released to a person who has authority and permission to take the child."
165. The appellant submits that that is a question of law and the trial judge erred in not explaining the issue properly to the jury. In particular the appellant alleges that the trial judge erred by wrongly explaining the law to the jury. (It is necessary to pause at this point to note that no requisition was raised by the defence following the judge’s charge suggesting a misdirection on the law). According to the appellant, the trial judge should have addressed one question only: ‘whether the defendant had the legal right to collect his child from the question on 4th January 2012’ and (if not) whether the defendant was reckless in attending/attempting to collect his child’.
166. The appellant contends that the issue of a father’s legal right to collect his son from a crèche is a mixed question of fact and law, influenced in the circumstances of this case by six different elements, which he identifies as:
a) Part V (it is thought the appellant was in fact referring to Part IV) of The Child Care (Pre-School Services) (No 2) Regulations 2006, S.I. No 604 of 2006. The appellant contends that the part of this instrument on which he relies regulates the legal right to attend a crèche and in doing so makes no distinction between married and unmarried parents;
b) that the father and mother entered into an agreement with the crèche that both parents could remove the child (plus one other named individual);
c) that the father had deposited and collected the child at the crèche for the previous 2 years without objection by mother or the crèche;
d) that the parents had an agreement constituting alternating custody between the mother's residence in Dublin and the father's in Belfast;
e) that the mother had engaged in secret correspondence with the crèche whereby the father's right to collect the child was questioned, and that during this communication which dated back 18 months the crèche had never contacted the father to inform him that an issue had arisen;
f) that the father has legal rights in the form of the right to family life as asserted in Keegan v Ireland [1994] 18 EHRR 342 (de facto family rights), and in Re G (unreported, High Court, McKechnie J, 12th September 2007), and that those rights are recognised in an inchoate form as between the point where a parenting agreement breaks down and when a Family Court date can be obtained and Orders made.
167. It should be stated immediately that, contrary to what was submitted at a), the regulations in question do not in fact regulate the legal right to attend a crèche. They do however set standards and requirements for crèche operators and, inter alia, impose a requirement on crèche operators to keep records, including a requirement to maintain a register containing specified pertinent particulars relating to each pre-school child. One of the specified particulars is that the register should record any authorisation for the collection of the child in question.
168. It should also be stated that the matter asserted at b) would appear to represent a misunderstanding on the appellant’s part of the true legal position in so far as it obtained on the 4th of January 2012. In Ireland at that time unmarried fathers did not have automatic guardianship rights to their children in any circumstances. On the contrary, s. 6(4) of the Guardianship of Infants Act 1964 as amended (the “Act of 1964 as amended”) provided that:
“Where the mother of a child has not married the child’s father, she, while living, shall alone be the guardian of the child, unless the circumstances set out in section 2(4) apply or there is in force an order under section 6A (inserted by the [Status of Children] Act of 1987) or a guardian has otherwise been appointed in accordance with this Act.”
169. Section 2 (4) of the Act of 1964 as amended provided that if the mother was agreeable, a father could become a joint guardian if both parents signed a statutory declaration to that effect. However, that was not done in the present case. Section 6A of the Act of 1964 as amended refers to an unmarried father’s entitlement to apply to the District Court to be appointed as a guardian of his child. There was, it is understood, no such application in this case.
170. Accordingly, at the material time, the law was that, in the case of a child of unmarried parents, where the father had not applied for and been granted guardianship rights, and in the absence of agreement that the father should have such rights evidenced by the required statutory declaration, only the mother could grant authority to a third party with respect to matters concerning the welfare of the child in question. She could of course authorise the natural father to perform a relevant function, but equally any authority granted was revocable. In terms of the authorisation of persons to collect a pre-school child from a crèche, if the father did not have guardianship rights, only the mother could give an authority to the operator of a crèche authorising another person or persons (which might of course include the natural father) to collect the child, but any such authority was fully revocable.
171. Accordingly, the appellant’s submission, even if in point, which it is not, is premised on a misunderstanding of the relevant law. The appellant’s complaint that “the trial judge’s remarks made in front of the jury were particularly ill considered, strongly suggesting to the jury that he had no legal rights” is accordingly misconceived.
172. As to the recklessness issue, the respondent’s submissions correctly point out that contrary to the appellant’s submission counsel for the prosecution never mentioned recklessness on the appellant’s part in either his opening or his closing speech.
173. The trial judge’s obligation was to instruct the jury in the course of her charge with respect to the ingredients of the crime of assault causing harm. Recklessness is certainly one means by which, save in the case of crimes of specific intent, the mens rea ingredient of a crime can be satisfied. Assault causing harm is a crime of general rather than specific intent and accordingly it can be committed recklessly, although it is more usually committed intentionally. The trial judge correctly told the jury that “an assault is intentionally or recklessly, directly or indirectly, applying force or causing impact on the body of another without their consent. Intention in law means that the accused's purpose was to assault the complainant, and reckless in law means that the accused took a serious and unjustifiable risk in respect of his victim which resulted in the assault. So the prosecution must prove beyond a reasonable doubt that the accused assaulted Ms Wallace or proceeded or acted recklessly in respect of Ms Wallace, resulting in an assault on Ms Wallace.”
174. The reality, however, is that while the mens rea ingredient could theoretically be satisfied by a finding of recklessness, it was always the prosecution case that the appellant intentionally assaulted Ms Wallace by, inter alia, head-butting her and in doing so caused her harm, and therefore the judge’s charge did not dwell unduly on recklessness as a legal term of art.
175. Even if prosecuting counsel had in fact suggested, which he did not, that the appellant had acted recklessly in attending the crèche in circumstances whether he either knew, or had reason to suspect, that his authority to collect R had been revoked by the child’s mother, and that he had in effect provoked the trouble which then developed into a physical altercation between himself and Ms Wallace, such a suggestion would have been unobjectionable and would not have called for any special instructions to the jury from the trial judge. It would have been to suggest recklessness in the quotidian sense which the jury would have well understood but not in the legal sense of bearing on the mens rea of the crime alleged in this case. However, as counsel for the prosecution points out, notwithstanding the appellant’s averment on affidavit that “counsel for the prosecution asserted before the jury that this recklessness in attending could comprise the recklessness in the reckless element of a statutory Section 3 charge. In particular he constantly intonated the word reckless when using it before the jury”, the transcript reveals this averment to be without basis.
176. It is clear the complaints made under this heading are entirely misconceived, but in any event having regard to the decision in The People (Director of Public Prosecutions) v. Cronin (No 2) [2006] 4 IR 329 this Court could not justifiably entertain those complaints which the appellant seeks to raise for the first time on appeal, in circumstances where no objections were raised at the trial seeking to impugn remarks allegedly made by prosecuting counsel to the jury tending to ascribe recklessness to the appellant, either expressly or by implication, and no requisitions were raised in respect of the judge’s charge at the trial.
177. In the circumstances we dismiss Ground of Appeal No 6 without hesitation.
Ground of Appeal No 7.
178. The main complaint underpinning this ground is an alleged failure to provide the criminal records of prosecution witnesses in advance of the trial.
179. The appellant has adduced no evidence to suggest that any prosecution witness in fact had a criminal record which was not disclosed to him. As a matter of good practice a defendant who asks for details of the criminal records of prosecution witnesses, if any, should have the position one way or the other confirmed to him, and it is regrettable that that did not occur in this case. However, in circumstances where the failure to respond to his request in that regard was not raised with the trial judge, and the appellant can point to no actual prejudice we are satisfied the failure to respond neither gave rise to any actual unfairness in the appellant’s trial, nor does it have any implications for the soundness of the appellant’s conviction.
180. In the circumstances we also readily dismiss Ground of Appeal No 7.
Ground of Appeal No 8
181. The complaint underpinning this ground of appeal relates to what is characterised in the appellant’s reformulated grounds as “the failure to call two prosecution witnesses on the Book of Evidence”. However, the original grounds filed by the appellant limited a complaint in that regard to one witness, namely a Garda Conway. Once again the appellant in his reformulated grounds seeks to expand the complaint, without any leave to amend having been obtained, to also include a Ms Roseanne Le Chevallier.
182. Garda Conway was the second Garda who attended at the scene, and he was also involved in interviewing the appellant. However, he was not in fact a witness on the Book of Evidence, nor was his statement served as a Notice of Additional Evidence. Further, the appellant does not allege that he made any request of the prosecution that Garda Conway would be called or tendered to him for cross-examination. Neither did the defence raise any issue with the trial judge concerning the prosecution’s decision not to call Garda Conway in support of their case. There was therefore no obligation on the prosecution to call Garda Conway. In any event, the statement of Garda Conway was furnished to the appellant by way of routine disclosure in advance of the trial under cover of a letter from An Garda Síochána dated 21st of May 2012. There is no property in a witness and the appellant could have called Garda Conway himself.
183. Ms Le Chevallier was the crèche’s chef who was allegedly present during parts of the disputed incident. No statement was taken from her until the 19th of June 2013. The trial opened with the appellant’s arraignment on the 27th of June 2013. She was not a witness on the Book of Evidence and no statement of Additional Evidence was served in respect of her. While we are not in any event disposed to allow the appellant to ventilate his complaint that she was not called as a witness in circumstances where he did not seek and obtain the leave of this Court to expand his original grounds of appeal to include a complaint that Ms Le Chevallier was neither called nor tendered, it seems to us that in any case the prosecution would not have been under any obligation to call or tender her in the circumstances presented. Also, we note that, yet again, this is an issue that was never raised at the trial.
184. We are therefore disposed to dismiss Ground of Appeal No 8 in limine.
Ground of Appeal No 9.
185. This complaint is characterised as “Failure by Gardaí to investigate the accused’s complaint against Ms Wallace: unfairness”. The submissions made by the appellant allege a failure by Garda Byrne to investigate the appellant’s complaints of: a) assault by Ms Wallace and Ms Simpson; b) Mrs Wallace threatening the accused with her Garda family, and c) child abduction when Mrs Wallace locked the appellant’s two and a half year old son in a room where he screamed for 25 minutes, amounts to unfairness. It was submitted that as the appellant’s complaints coincided with the complainant's these were in essence concerned with the same event.
186. It is further submitted that Garda Byrne gave evidence that she investigated the defendant's complaint, but despite several written requests for the investigation file the defence were never provided with same or of sight of any aspect of this investigation. It is contended that the prosecutor told the court of trial that the file had been sent to the defence. However, the defence received nothing by way of a file into the defendant's own complaints. Garda Superintendant Fitzgerald claimed that there had been a “full and comprehensive file sent to the DPP” in a letter dated 17 June 2013, despite the fact one witness statement, that of Roseanne Le Chevallier, was not taken until two days after this correspondence was sent.
187. It was submitted that there was no meaningful investigation by Gardaí; that the DPP was “probably sent an empty file”, and this was “probably for unfair reasons, namely that Ms Wallace received unfair [favourable] treatment as her brother was a Garda Superintendant”.
188. Responding to these complaints, counsel for the respondent has submitted that they border on the vexatious. He submits that in any event it is difficult if not impossible to see how they could possibly constitute a ground of appeal. We respectfully agree.
189. If the appellant had a grievance concerning the efficiency or adequacy of the investigation into a complaint or complaints made by him to An Garda Síochána, there were avenues open to him to pursue, e.g., a complaint to the Garda Ombudsman Complaints Commission. However, the trial did not concern his complaints, but rather Ms Wallace’s complaint against him.
190. Even taking on board his contention that his complaints and her complaint are just different sides of the same coin, he adduces no actual evidence whatever to suggest that the Garda investigation into the complaint by Ms Wallace was biased in her favour, that his side of the story was not investigated properly, or that he has been treated unfairly by the Gardaí. The suggested favouritism afforded to Ms Wallace on account of her brother being a Superintendent amounts to no more than scandalous speculation by the appellant which he has utterly failed to support with any actual evidence.
191. In the circumstances, we also dismiss Ground of Appeal No 9 in limine.
Conclusion
192. We have seen fit to dismiss each of the appellant’s grounds of appeal. In those circumstances we find the appellant’s trial to have been satisfactory, and his conviction to be safe.
193. We therefore dismiss the appellant’s appeal against his conviction.
