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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Kenneth Cunningham [2007] IECCA 49 (24 May 2007) URL: http://www.bailii.org/ie/cases/IECCA/2007/C49.html Cite as: [2007] IECCA 49 |
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Judgment Title: D.P.P.-v- Kenneth Cunningham Composition of Court: Finnegan J., Budd J., Gilligan J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Refuse leave to appeal against conv. | ||||||||||
- 2 - COURT OF CRIMINAL APPEAL Finnegan J.91/06 Budd J. Gilligan J. THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Respondent v. KENNETH CUNNINGHAM Applicant/Appellant JUDGMENT of the Court delivered the 24th day of May 2007 by Finnegan J. The applicant was convicted of murder the particulars being that on the 24th December 2003 in the county of Louth he murdered one Laurence Garvey. The learned trial judge granted a certificate on one ground in the following terms:
It is proposed to deal with each ground of appeal in turn. Ground 1 Whether the judge erred in refusing to discharge the jury after the prosecution witness Gráinne Hearty gave recognition evidence despite such having been ruled inadmissible. Ms. Hearty gave evidence in the course of a voir dire. On the night of the 23/24 December 2003 she was staying at her mother’s house in Dundalk. At about 12.15 a.m. on the 24th December she drove to the junction of The Laurels and Philip Street with the intention of performing a U-turn. She was driving with dipped headlights. At the junction in Patrick Street she saw one man jumping up and down on another who was lying on the ground and then kick him to the head. She did her U-turn and returned to her mother’s house, got a blanket and drove back to assist the man lying on the ground. At the corner of Culhane Street and Philip Street she stopped intending to turn right. She saw “the man” on the corner of Culhane Street. She was asked in relation to that man was he the man she had seen earlier. She said it was the same man. She shouted to her mother “that’s him”. The man lifted up his arms and cheered. She described the man as five foot six or five foot seven inches tall with very dark hair cut short. He was muscular or tubby. He was wearing a round neck wine coloured long sleeve top with a design to the front, dark trousers more like jeans and dark shoes. In cross-examination she said that her observation was momentary, but that she saw his face and would never forget the face. Mapping evidence given at the trial was that it was fifty metres from the point where Ms. Hearty observed the assault to the place in Patrick Street where the assault occurred and that it would not be possible at that distance to recognise facial features. At the conclusion of the voir dire the trial judge ruled that it was not open to the prosecution to call Ms. Hearty to identify the man she saw in Patrick Street with the man in court. She could, however, give evidence describing the man she saw in Patrick Street and the man she saw in Culhane Street leaving the matter of conclusions and inferences to the jury. When Ms. Hearty was giving her evidence before the jury she said:
The defence objected and sought to have the jury discharged. The learned trial judge ruled that the description which the witness had given was a composite description comprising what she had seen in Patrick Street and at the corner of Culhane Street. That description was an error on her part in that it included facial features which she could not have seen in Patrick Street. It would be outside the earlier ruling if this description was tied only to what she had seen at Culhane Street. The witness should not be led in a way that tied the description which she had given in evidence to Patrick Street. The witness could not be asked to describe the man she saw in Patrick Street. The learned trial judge refused to discharge the jury. The appropriate way to deal with the situation, he ruled, was for a direction to be given to the jury to disregard the evidence of Ms. Hearty associating the man seen by her at the corner of Culhane Street as being the same man that she saw jumping on the other man on Patrick Street. The judge duly directed the jury as follows –
Next you may well recall that the witness says that the man at Culhane Street, when she sighted the man at Culhane Street, she turned and said to her mother in the car ‘that’s the man’. Now I am directing you that you may not treat this as evidence establishing through this witness that the two are the same, for the reasons which must appear clear having regard to the general principles I have already told you, and also what I have just said about Mr. Cleary. First of all she did not give any description of the man she saw at Patrick Street. Second of all, she could not have done so in terms of the only description she gave at Culhane Street which included a detailed description of the man’s face, impossible according to Mr. Cleary from her vantage point at Patrick Street. Third, it may be that she might herself have mistakenly imposed the features of the man that she saw at Culhane Street and the man that she saw earlier, because you will recall that in cross-examination she said about the man she saw at Patrick Street ‘I will never forget his face’ but on being pressed in cross-examination she said that referred to the man she saw that night, that is, the man she saw at Culhane Street. You might well then ask, and this is ‘just what is the prosecution’s case in relation to the man at Patrick Street?’ I’ll just remind you that it is a circumstantial case. The prosecution do not say ‘we have an eye witness’. They do not say ‘we have forensic proof’ like blood or fingerprints or anything else. It is a circumstantial case, based on the various circumstances and I won’t detail them all to you, because I think I have alluded to them already in what I have said so far”.
In D v. Director of Public Prosecutions Finlay C.J. said – “I am satisfied that there is much strength in the arguments submitted on behalf of the Director of Public Prosecutions in the hearing of this appeal that this court should not disregard both the capacity of a trial judge strongly and effectively to charge a jury in a manner which would indicate to them beyond question their obligation to try the issues before them only on the evidence adduced, and the robust commonsense of juries who might well ignore dramatic or sensational newspaper articles.”
“At one stage he threatened to kill me” would have to be excluded. During the course of the trial the witness gave evidence to like effect as in the excluded element. The learned trial judge refused to discharge the jury. The Court of Criminal Appeal was satisfied that the trial judge’s decision was taken after consideration, with reasons given, having analysed any prejudicial aspect of the matter and held that there was no basis upon which the court could interfere with the exercise of the judicial discretion. In the present case, the court is satisfied that the learned trial judge properly exercised his discretion. In his charge, he was at great pains to ensure that the jury excluded from their consideration the evidence improperly admitted and that they should make no connection between the applicant and the man committing the assault on the basis of that evidence. Ground 2 The learned trial judge erred in refusing to find that in the particular circumstances of the entry of the dwelling of the accused the Gardai were obliged to inform the accused of his constitutional right to refuse them such entry and as a consequence of their failure to do so, the learned trial judge erred in fact and in law in failing to rule inadmissible the following evidence:- (a) The negative results of the search of the room in which the accused was arrested. (b) The results of the search of the rest of the dwelling of the accused including the fireplace and in particular alleged remains of burnt clothes and shoes of the accused, and (c) The results of the arrest and detention of the accused and in particular the evidence of Garda interviews with the accused. The circumstances in which the entry into the applicant’s house arose were the following. Detective Garda Lynam called to the applicant’s home shortly after 1 a.m. on Christmas Eve. He could clearly see the reflection of a large fire when he looked through the front door. The house was unlit. At 5.50 that morning together with Garda Geraghty, Detective Sergeant Piper, Detective Garda Molloy, Detective Garda Sheridan and Garda Hanlon he again attended at the applicant’s home. They knocked on the door for a number of minutes before the applicant opened an upstairs window and recognised Detective Garda Lynam. Detective Garda Lynam asked him to come downstairs because they wished to talk to him. The applicant came downstairs and admitted the Gardai. They entered the sitting room. Subsequently Detective Garda Lynam entered the kitchen and saw a large pile of ashes in the fireplace still glowing. At 6.22 a.m. the applicant was arrested. Detective Sergeant Piper gave evidence to the like effect. Detective Garda Molloy’s evidence was that when the applicant opened the door, Detective Sergeant Piper told him that they were investigating an incident. The applicant replied – “How bad is it? You’d better come in.” The Garda party and the applicant then entered the front room. The applicant was then cautioned by Detective Sergeant Piper. The intention of going to the house was to arrest the applicant but the applicant was not informed of this although he was cautioned. He agreed with counsel for the defence that the applicant was not told that he had a right to refuse entry into the house. The applicant’s case is that the Gardai would have been entitled to enter the dwelling on foot of their powers of arrest to effect an arrest but they did not do this. They entered on foot of an invitation but without informing the applicant of his right to refuse to admit them. Counsel for the applicant relies on The People (D.P.P.) v Walsh [1980] I.R. 294 and The People (Attorney General) v McGrath) (1960) 99 I.L.T.R 59. However in this case in the light of the evidence there can be no suggestion that the entry was illegal. The invitation to enter was given by the applicant. It was unsolicited in that no request to enter was made. There was no trick. In the circumstances where an invitation is issued no obligation to advise the applicant of his constitutional rights could arise. The applicant fails on this ground. Ground 3 The learned trial judge erred in fact and in law in refusing to find that the accused was as a matter of fact and law detained without lawful basis for the period from the time of entry of the dwelling of the accused to the time of his arrest and in failing to rule inadmissible on that ground the evidence set out at Ground 2(a)(b) and (c). Counsel for the applicant relies on the judgment of Hamilton P. in The People (D.P.P.) v Coffey [1987] I.L.R.M. 727. In that case the defendant voluntarily attended at a Garda Station in the first instance. The Gardai left for the purpose of checking his account of his movements and on their return the defendant was a very real suspect. It was held that at that time he should have been told he was free to go if he so wished. In these circumstances the onus was on the State to show that he was made aware of his right to leave the Garda Station or that he was aware of his right to do so. In that case in the course of his attendance at the Garda Station the defendant was asked for his car keys and he handed them over: at no stage were they returned to him. Throughout his time in the station he was constantly interviewed and questioned and this would indicate to him that he was not free to leave. No indication was given to him that he was free to leave. It was irrelevant that he did not ask to leave and the court was satisfied that during the relevant period the defendant was in detention and the statements made by him were inadmissible. In the course of his judgment in that case Hamilton P. referred with approval to a passage from the People v Lynch [1982] I.R. 64 – “Of course, if an intention has been formed to charge him, he must also be informed that he is not obliged to answer any questions. The necessity to be informed of his freedom to leave at any time arises from the fact that a person in a police station in connection with the investigation of a crime, even if he initially goes there voluntarily, is in an unaccustomed environment and finds himself the focal point of attention. He may very well reasonably assume that he is not free to leave until he is so told, and he may not venture to assert his belief in his right to leave. It was for similar reasons that in the Judges’ Rules the necessity to warn a person that he is not obliged to answer any questions was introduced. Generally speaking, nobody is obliged to answer any questions and, if one were to assume that everybody knows that that is the law, there would be no need for the warning; but practical experience has shown that there is a need for such a warning. In my view, the same should apply to persons who are invited to come to a Garda Station for the purpose of being questioned about an offence. They should be made aware that at all times they are free to leave until the point is reached when they are in fact not free to leave.” In the present case the applicant was in his own home. The Gardai were present at his invitation. He had been duly cautioned. He was clearly not in the same position as the defendant in The People v Lynch who was in the unaccustomed environment of the Garda Station. In these circumstances the evidence referred to at (a), (b) and (c) was not obtained in breach of any constitutional right of the applicant nor is it tainted with any illegality. Ground 4 The learned trial judge erred in fact and in law in refusing to discharge the jury having regard to the prejudicial comments on a particular internet website and in drawing the attention of the jury to the existence of such a website by making enquiry of the jury despite the defence submission that such a step should not be taken. On the eighteenth day of the trial counsel for the defence drew the learned trial judge’s attention to a print-out from a website called the El Paso Times. The website relates to matters concerning Dundalk. The website referred to the trial and there were comments on the website in the nature of blogs relating to the trial, some 15 in total. Some of the postings counsel said were matters for concern. Counsel for the applicant submitted that as it was not known if any juror had accessed the site, it would have been prudent to give a warning at the commencement of the trial that they should not access the internet and that was not done in this case. It was further submitted that it was now too late to give a warning and that the jury should be discharged. The learned trial judge notwithstanding objections by counsel for the applicant determined to deal with the issue before the jury. He did so in the following terms: “I just wanted to say something to you: you recall that virtually every time we break up, I tell you not to talk to anybody else outside the 12 of yourselves or to let anybody else outside the 12 of yourselves speak to you about the case. Perhaps I should have made it more explicit, that includes, and I should have made this more explicit to you, that includes, for example accessing the net, the website or any website that might discuss or comment on the case just as obviously that would be within that. I am making that clear to you now, so you will understand when I give that warning, but that is what I intend. But just in case I had not made that clear to you I would like to know from you, has any one, by any chance made a hit on the net that would have involved a discussion of any kind of information or background or comment or reference to this case? I would like each of you to take a moment just to consider. There is no criticism or anything like that. I just want to know if that might have happened in this particular case. Has anybody?” The jury answered “No”. The learned trial judge went on to warn the jury not to consult the web or anything of that nature. On the twenty fifth day of the trial counsel for the applicant drew to the learned trial judge’s attention to the fact that the web site had been referred to in an article in the latest issue of the Sunday Times and discussed on RTE Radio 57 Live and so brought to the attention of a wider audience. In neither instance was there a reference to the crime or the trial. There had also been an additional posting relating to the trial on the El Paso Times site. The learned trial judge refused to discharge the jury. Earlier in this judgment the court has referred to Dawson and Another v Irish Brokers Association, D. v Director of Public Prosecutions [1994] 2 I.R. 465 and Z. v Director of Public Prosecutions 1994 2 I.R. 476. Juries are quite capable of accepting a trial judge’s ruling that something is irrelevant. If properly directed they can be expected to abide by their oath and find facts on evidence properly before them. The question asked by the learned trial judge of the jury was appropriate and their answer should be accepted and as they had not consulted the website prior to the learned trial judge’s warning the court is satisfied that they would not do so thereafter and that there is no real risk of unfairness arising out of the existence of the website. To hold that such a risk exists would require that at least one juror had visited the website and read the relevant blogs, will be prejudiced against the applicant because of the same, will not comply with his/her oath as a juror and will not comply with the charge of the trial judge. The applicant fails on this ground. Ground 5 The learned trial judge erred in fact and in law in finding that Ms. Linda McKeown was a hostile witness and in permitting counsel for the prosecution to cross-examine her. The learned trial judge’s discretion to allow such cross-examination was wrongly exercised in such exceptional circumstances as to require it to be reviewed on appeal. Ms. McKeown is the applicant’s partner and they have five children. Counsel for the prosecution requested and was granted a voir dire in anticipation of Ms. McKeown giving evidence in conflict with answers given by her in questioning after caution. In the course of the voir dire she made it clear that such a conflict would indeed arise. Her evidence in the voir dire was that she had been threatened, verbally abused and put under pressure by Gardai and that it was in this context she answered questions at interview. A hostile witness is a witness who at some point after he is sworn appears unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth: R. v Hayden and Slattery [1959] V.R. 102 at 103. As in this case, the issue tends to arise where the witness’s testimony under oath diverges in a material way from an account provided earlier in a pre-trial statement. A trial judge’s decision as to whether the witness should be treated as hostile or not is based to a large extent upon a live impression of the witness’s demeanour and credibility and appellate courts in the absence of clear error are reluctant to substitute their opinion for that of the trial judge. In the present case a detailed examination of the witness took place and evidence was also received from her solicitor and three garda witnesses. At the conclusion of the voir dire the learned trial judge gave a detailed ruling in which he analysed the evidence which had been adduced. He records his impression of the witness in the box that she is alert, intelligent, assertive and capable of standing up for herself in what is clearly an alien environment namely the witness-box. He had regard to the specific nature of the detail which she provided in the interview in answer to questions. He formed the opinion that the witness was not willing to tell the truth or the whole truth in her evidence and accordingly acceded to the application. This court can find no error in the manner in which the learned trial judge approached the voir dire. The learned trial judge had the benefit of observing the witness in the witness-box throughout a protracted examination and cross-examination. Such observation must be a major factor in the determination of the issue as to whether a witness is hostile or not. This court has not the opportunity of observing the witness and should be slow to substitute its view for that of the trial judge in his decision on the exercise of his discretion. The applicant fails on this ground also. Ground 6 The learned trial judge erred in fact and in law in refusing to exclude the evidence of the garda interviews with the applicant on the ground that they were not video recorded. When the applicant’s solicitor attended at the Dundalk garda station, he made it clear that he objected to the applicant being interviewed without the interview being video recorded. No video recording facilities were available in Dundalk garda station. Counsel for the applicant relied in his submissions on The People (DPP) v Connolly [2003] 2 I.R. 1, The People (DPP) v Michael Murphy, unreported, Court of Criminal Appeal (Kearns J.) 5th May 2005 and The People (DPP) v Diver, unreported, Supreme Court (Hardiman J.) 29th July 2005. In the first mentioned case Hardiman J. at pp. 17-18 said -
This court notes that the events in issue here occurred on the 24th December, 2003 the judgment of the Court of Criminal Appeal in The People (DPP) v Connolly having been delivered on the 7th May, 2002. However, the trial judge carefully considered all the circumstances having heard detailed submissions and ruled that the statements were admissible. The Act of 1984 s. 27(4) explicitly provides that a failure to comply with a provision of the same shall not by itself render inadmissible evidence. This is without prejudice to any power of the court to exclude evidence at its discretion. The learned trial judge clearly took the view that the disruption which would be caused by moving the investigation to a different garda station justified the interviews being conducted in Dundalk garda station without video recording. He took into account that the relevant events occurred on Christmas Eve and that day and days following were an important family holiday and that it would be difficult to pursue the investigation vigorously on those days: disruption should be avoided. He considered these factors to outweigh the circumstance that video recording facilities were available at other garda stations. This court is satisfied that the learned trial judge properly exercised his discretion in this regard and that such exercise should not be interfered with. The applicant fails on this ground also Ground 7 The learned trial judge erred in fact and in law in failing to direct the jury that counsel for the prosecution’s repeated statements in addressing the jury as to “reasonable doubt” were incorrect and that it was clearly conveyed to the jury that such a doubt should be of sufficient weight to be decisive in an important matter as opposed to being of sufficient weight to cause significant pause for thought or a delay in the making of an important decision. Both before the learned trial judge and before this court, counsel for the applicant objected to the manner in which counsel for the prosecution addressed the jury both in opening and closing on the question of reasonable doubt. While it is appropriate to look at the entirety of the opening and closing speeches on that issue and also at the learned trial judge’s charge we propose to set out the passages to which exception is taken. In opening the case, counsel for the prosecution said –
That is not the role of the jury. The jury’s role is to assess the evidence and see whether it amounts to proof beyond reasonable doubt. As I say in relation to unreasonable doubt, some of us are familiar with these sort of doubts. The sort of niggling doubt we might have if we went off on holidays and think that, even though there is no rational explanation for it, we might have left the gas on or all the lights on in the house. These are the sort of niggling things that are not based on any reason. Again, this is all subject to the direction of the judge in relation to the case. My view of the law, a reasonable doubt is, of course, a doubt which is based on a sound reason which when you analyse the reason simply will not go away.” Again, he dealt with reasonable doubt as follows –
Counsel have said correctly that it is not a whimsical doubt we are talking about, it is not mathematical certainty. That is not what the obligation is on the State. It is to do with the kind of decision that I have already referred to. If you do have a reasonable doubt, then so be it, that is a reasonable doubt and the State has failed to prove its case in that regard and the presumption is, and I hope by now you know what I am going to say, the presumption is that Mr. Cunningham is innocent or in relation to the salient element in the case, you take the more favourable view of that given that the State has not established in that regard its case beyond a reasonable doubt. It is sometimes, and I think incorrectly, described as giving the accused the benefit of the doubt. It is not a benefit: it is a right as I have already mentioned. So you are not doing any favours. You are not being a generous jury, as opposed to being a mean or a liberal as opposed to being a conservative. That doesn’t enter into the law, it’s a right and it’s the law. So that is the way you solve or make the decisions if it comes to a question of doubt. Then the benefit applies and you take the most favourable view of it.” Counsel for the applicant in this court was concerned about the references by counsel for the prosecution to “worriers”. The references are perhaps not particularly helpful to a jury but taken in the context of the prosecution’s opening and closing as a whole and the judge’s charge as a whole, this court is satisfied that they are not objectionable. Again, objection was taken to counsel for the prosecution’s categorisation of the doubts as doubts which prevent a decision being taken as opposed to, as counsel for the defence suggested, doubts which would linger even if the decision was made. Again, taking the prosecution’s opening and closing as a whole and the judge’s charge as a whole it is quite clear that the it was made clear to the jury that they should have regard to reasonable and not to unreasonable doubts. This courts concern is with the judges’ charge as a whole and whether he properly explained the standard of proof: The People (D.P.P.) v Kelly Court of Criminal Appeal 21st March 2001 McGuinness J. The court is satisfied that the learned trial judge appropriately explained the standard of proof. The applicant fails on this ground also. Ground 8 The learned trial judge erred in fact and in law in refusing to direct a verdict of not guilty at the close of the prosecution case. In support of this ground, the applicant relies on all submissions made at the trial. This court has considered the same in full and is satisfied that the case was an appropriate one to be left to the jury. Ground 9 The learned trial judge erred in fact and in law in failing to recharge the jury adequately and in accordance with the following requisitions made on behalf of the appellant – (a) The weight to be attached to the video evidence that was available by way of CCTV footage. (b) To the absence of video recording of the interviews with Ms. McKeown. The jury were shown a video taken within a public house and several street videos. The learned trial judge did not, in the course of his charge, make any reference to the weight to be attached to the videos. On behalf of the applicant, it was submitted to the learned trial judge that the jury be recalled and that they be informed that the video should be considered ancillary to oral evidence. The learned trial judge did not accede to the requisition. Having carefully considered the transcript of the evidence given in relation to the video, this court is satisfied that it was a matter for the jury to attribute weight to the video evidence and that a direction from the trial judge was not required in this regard. Ms McKeown’s interviews were conducted under caution. However in the applicant’s trial she was a witness only. There is no requirement that an interview with a witness should be recorded on video. The applicant fails on this ground also. The appeal pursuant to certificate is dismissed and leave to appeal on the other grounds is refused. DPP v Cunningham | ||||||||||
