Irish Court of Criminal Appeal

Judgment Title: DPP -v- Derek Hayes

Neutral Citation: [2011] IECCA 65


Court of Criminal Appeal Record Number: 130/10

Date of Delivery: 19/10/2011

Court: Court of Criminal Appeal

Macken, J. [Rec. No. CCA 130/2010]
Budd, J.
O’Keeffe, J.

BETWEEN:

Judgment of the court delivered by Macken, J. on the 19th day of October, 2011

On the 23rd April, 2010, after a trial lasting several days, the applicant was convicted at Limerick Circuit Criminal Court on one of two counts, namely, assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. He was sentenced on the 30th April, 2010, on that count, to five years imprisonment. By an application lodged on the 10th May, 2010 the applicant applied to this honourable Court for leave to appeal against his conviction on two specified grounds, lodged on the 16th November, 2010. They are as follows:

1. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to discharge the jury in response to an application so to do by counsel on behalf of the applicant on two separate occasions in the course of the trial.

2. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to accede to an application made on behalf of the applicant to grant him a trial separate from his co-accused.

Although the application is based, inter alia, on an allegation that the learned trial judge erred in fact, this application, as will be clear from the materials following subsequently in this judgment, is, in reality, one based entirely on questions of law, and of the role of the judge in the course of a criminal trial.

Background
This is the background which led to the charges and also sets the context in which the dispute arose in the course of the trial, leading to this application. On the evening of Saturday, 6th June, 2009, Elton John, the well known singer, was giving a concert at Thomond Park in Limerick City. A woman called Martina Kiely lived at an address on Shanabooley Road, Limerick. The rear of the garden of that house backs onto Thomond Park. She decided to have a drinks party in the house, the idea being that she and her guests would then have a chance to listen to the concert without actually having to be present in Thomond Park. Kenneth Hynes, who at that time was Miss Kiely’s boyfriend, was invited to the party. He was in a relationship with Miss Kiely, although not living in her house at that particular time. Her two sisters, Ms. Tuite and Ms. Mulqueen, were also invited to and attended the party, as did a man called Edward Kelly, and the applicant. The applicant had, in fact, been in a relationship with Miss Kiely some years previously and from that relationship they had a child together.

According to the description of the relevant facts, set out by counsel for the respondent in the written submissions, which description is not significantly or, in reality, in any way challenged by the applicant, Kenneth Hynes, the victim of the assault, said he was sitting in an armchair at the corner of the fireplace in the living room of the house at around midnight. He then got up from his chair to get cigarettes from the fireplace when Edward Kelly, who had been standing behind him, broke a bottle over his head. The applicant, Derek Hayes, who was then sitting on a three-seat armchair or sofa, stabbed the applicant with a glass in his left cheekbone, just below his left eye. As a result the applicant required medical treatment and the wound was closed with twenty-four stitches. He suffered significant scarring in the area of the injury. The victim, Mr. Hynes, knew the applicant before the incident occurred, and he stated that Miss Kiely, Ms. Tuite and Ms. Mulqueen were all present at the time of the incident.

In contrast to this, the substance of the cross-examination of the applicant by very experienced senior counsel acting for him, was based on the assertion, or clear suggestion, that actually at the time of the incident, the applicant, Edward Kelly, Ms. Tuite and Ms. Mulqueen were all out in the garden listening to the concert. The inference which was sought to be drawn from this, and from the defence mounted by the applicant and Mr. Kelly, was to the effect that it was Miss Kiely, rather than the applicant, who was responsible for the injuries inflicted on Mr. Hynes.

Miss Kiely’s evidence was to the effect that she had “blacked out” at the time of the incident. According to her evidence she had had quite a lot to drink, starting from as early as 5 o’clock in the afternoon, and in consequence had blacked out in or around 9.30 or 10 o’clock. Ms. Tuite, her sister, gave evidence on behalf of the applicant to the effect that she and her sister were in the living room of the house accompanied by Edward Kelly and the applicant, when an argument developed between Miss Kiely and the victim, Kenneth Hynes. Ms. Tuite said that she and Ms. Mulqueen, accompanied by the applicant and Mr. Kelly, went outside to the back garden and that is why they were there at that time. At some stage prior to midnight this group returned to the house, and according to Ms. Tuite, Mr. Hynes had at that stage left the house. Ms. Mulqueen was called as a witness by Edward Kelly, the co-accused, and the substance of her evidence was to the same effect as that of Ms. Tuite. Both women gave evidence that an assault did not occur in their presence in the living room. Finally, and to complete this background picture, when interviewed by the gardai on the 30th June, 2009, the applicant denied assaulting Mr. Hynes and gave an account of events similar to that of Ms. Tuite and Ms. Mulqueen.

The prosecution case against the applicant was grounded exclusively on the evidence of Mr. Hynes.

The Grounds and the Arguments
Insofar as the first of the applications is concerned, this arises exclusively from a series of questions occurring on the third day of the trial, when Miss Kiely was being cross-examined on behalf of the applicant. On the 22nd April, 2010 the witness, Miss Kiely, was already under cross-examination from the previous day. She described the alcohol that she had taken together with medication. She had been drinking alone and that she had drunk about a half litre of vodka upstairs (over a period of time), but when she was downstairs with the others, she was drinking cans of beer. After some exchanges of a general nature, counsel suggested that the witness had a drink problem, which the witness denied, but did admit that she had blacked out, perhaps twice, and that during the time of the assault, which was the subject of the trial, she had also blacked out and had received injuries, and when asked whether or not she was in a position to say she had “done this” (the assault) or not, she said “I know I didn’t do it”.

Thereafter commenced the series of questions which were being put to Miss Kiely with the obvious intent of indicating, or establishing, that she was the only person, apart from Hynes, inside the house at the time the assault occurred. The questions being put alleged that there had been a row inside the house between the witness and Kenneth Hynes, which the witness accepted was the case, but she said was about the remote control on the T.V. and that it was not an argument. She said that they had “a few words” when she asked him to “turn down the music or leave (it) on whatever channel you are deciding to, leave on”, that that is what had happened and nothing more. Counsel pointed out to her that in the course of being interviewed by the gardai she did not mention this row, but she responded that it wasn’t anything “out of order”, and she did not see why it would be mentioned because she did not consider it was relevant.

It is necessary to set out the entire of the next exchanges, since the basis for the application for the jury to be discharged arises from them. The following questions being posed are those by senior counsel acting on behalf of the applicant during the trial, and the answers are those of the witness:

“Q. You see, I have to suggest that there was a dispute between you and Mr. Hynes?

A. That’s right, yes.

Q. And that it became violent?

A. It didn’t become violent.

Q. Well are you a person who has told the police that you once stabbed my client, Derek Hayes, in the stomach with a knife?

A. I did, yes.

Q. So you’re capable of very great violence, aren’t you, if you can do that?

A. Well, I’m sorry now, but it’s like this, at the time, the situation was it was either me or Derek Hayes --

Q. Well, I’m not --

A. -- and I was protecting myself, I had no other choice I was protecting myself.

Q. I haven’t asked you anything about the reasons for it?

MR. O’SULLIVAN: Mr Sammon is interrupting very unfairly the witness.

JUDGE: No, you have to let her finish the answer.

Q. MR SAMMON: You have, you’ve answered the question. You did stab Derek Hayes?

A. I did, yes, I did.

Q. With a knife, in the stomach?

A. Yes

JUDGE: Yes, no, but it is legitimate that she answers. You’re putting it to her that she’s capable of great violence; well, she’s now entitled to explain the background.

MR. SAMMON: I didn’t ask her to, I just want to know of the fact that she is --

JUDGE: No, no, but you’re --

MR. SAMMON: That’s all.

JUDGE: You’re putting it to her that she’s a --

MR. SAMMON: And I’m entitled to an answer, which I got.

JUDGE: Yes, but she’s entitled to elaborate. You’re putting to her that she’s a person of great violence, capable of violence --

MR. SAMMON: I’m concerned as to where her entitlement to elaborate comes from. I don’t think she is.

JUDGE: Oh but she certainly is. What did you want to say about that, Ms? It’s been put to her that she’s a person of violence – capable of violence. She’s entitled then to explain what is the background to this particular -- “

“I just wanted to say first of all that incident took place about fifteen years ago, we had been out drinking and an argument broke out, he was a very violent man, and it was either me or him, and I feared for my life. And I could see him looking at a block of knives, and I reached for it on the spur of the moment and what I did was totally wrong and I totally accept, but there was never any charges pressed against me, I totally co-operated with the gardai in Roxboro Police Station and I explained the whole lot, I didn’t deny anything. And they came and they said to me that I was free to go, that Derek Hayes didn’t want to press any charges; he said that I didn’t do it.”

“Well, this is not a case of the trial judge, I as a trial judge, trying to elicit an elaboration from the witness. What I was doing was insisting that the witness be allowed to finish her answer, which she was allowed to do, which was relevant in the context of the question she was asked, which was “did you stab Derek Hayes” and “you are a person capable of violence?” It seemed to me that the answer she was giving was proper in the context of those questions and, in fact, it would have been very wrong to have cut her off and not allowed her to have elaborated. It was quite pertinent [to] the questions that you asked. The questions were legitimate and that being so, I can’t discharge the jury.”

The Arguments of the Parties
Both parties invoked well established principles of law, case law and academic writings, in support of their respective contentions.

It seems to the Court that judges, according to all the principles as established in the case law, must remain impartial in the course of hearings, and may not become involved in supporting one or other party in the course of proceedings. In particular, in the case of a trial, it is a matter for the jury to determine, on the basis of the evidence adduced, whether or not the prosecution has established the guilt contended for, beyond reasonable doubt. Neither party suggested otherwise before this Court.

The applicant invokes the case of The People (DPP) v. McGrail [1990] 2 I.R. 38, Attorney General v. Martin Joyce [1929] I.R. 526, in terms of case law, and academic writings included The Criminal Process (O’Malley) and Criminal Procedure (Walsh). The respondent, on the other hand, invoked three English cases, R v. Grondkowski & Malinowski [1946] 1 KB 369, R v. Miller & Others [1952] 2 All.ER.667 and R v. Vye [1993] 1 WLR 471, and three Irish case, The People (DPP) v. Burke & O’Leary (Unreported, Court of Criminal Appeal, 10th March, 1986), The People (DPP) v. Cleary (Unreported, Court of Criminal Appeal, 7th December, 2009) and The People (DPP) v. Brett (Unreported, Court of Criminal Appeal, 7th April, 2011), in support of their respective contentions. The entire of this case law and other authorities invoked is mentioned at this stage. However, most of these cases apply to the application for a separate trial, and none particularly concerns the issue arising under ground 1.

The main thrust of the applicant’s legal argument is that, in the present case, having regard to the exchanges, as they appear in the transcript, the learned trial judge had, in law, erroneously usurped the role of the jury by entering into the trial and by taking over by asking questions of the witness, which questions were responded to by the witness, the judge thereby embarking on his own enquiry, instituting a novel approach not permitted by law. Counsel on behalf of the respondent puts his case rather more starkly. He says that the difficulties which arose originated directly from the questions actually posed to the witness, which the witness was entitled to reply to, and the questions, having been asked, the applicant cannot complain if the witness replied fully, as she was entitled to do, rather than in a manner and in terms which the applicant would have preferred, or sought to ensure. The nature of the case, and the nature of the questions asked, demanded and required, in law, that the witness be permitted to finish both the sentence and the explanation which she wished to give. The trial judge was perfectly entitled, and indeed bound in fairness, to ensure that the witness was permitted to do this, and was not instead silenced and prevented from so doing by counsel for the applicant.

Conclusion
Defence counsel was fully entitled to put the case which the accused wished to put, which, as became clear early on in the trial, was that the applicant was not the guilty party at all, and that his witnesses would support this. Rather the assault, if it occurred at all, occurred at the hands of Miss Kiely, who, on the applicant’s case, had a violent past, and was a person “capable of very great violence”. In other words, this was a witness who had a propensity for violence, and in order to undermine the prosecution case, as the applicant was fully entitled to endeavour to do, the witness was cross-examined to that end.

Generally speaking, at least insofar as an accused is concerned, questions concerning propensity are not admissible, not because they are necessarily prejudicial (they may well be), but because propensity is not generally relevant in the course of a trial. It is for this reason that the prosecution will not be entitled to allege or cross-examine an accused (except in rare circumstances which do not arise in the present case) for the purposes of establishing a propensity to commit a crime. An accused, however, is given some greater leeway, and may, in the case of a witness presented on behalf of the prosecution, cross-examine on the basis that the witness was, in fact, the person who carried out the assault, rather than the accused. The case law, however, so far as this Court can gather, does not appear to go as far as to say that such a witness may be cross-examined on the basis that this is the person who assaulted the complainant victim because of an alleged propensity to act in a particular way.

It is not necessary in this case, however, to embark on an examination of the limits of the rules relating to the admissibility of a propensity to act in a particular way, because the real issue which arises here is much narrower than that, and centres on the precise defence being put and on the questions posed in support of the same. Counsel had already put this witness’s propensity to violence in issue earlier when cross examining the complainant. The above cited exchanges took place against a series of questions posed during the cross-examination of Mr. Hynes by senior counsel for the applicant, in the following terms:

“Q. Mr. Hynes, did you know that Martina Kiely once stabbed Derek Hayes?

A. Yes, I do.

Q. With a knife?

A. I do yes.

Q. In his stomach?

A. I do yes.

Q. When did you first know of that?

A. I knew that – well, it was the beginning of our relationship.

Q. So she is clearly a person capable of behaving quite violently.

A. Well, it was a case of it was either her or him.

Q. Well, I don’t want to know the reasons for it, but all I am concerned about knowing this, Mr. Hynes, is that you were aware that she is a person capable of inflicting violence?

A. I am aware of what she done to Mr. Hayes.

Q. Was she on some form of medication at this time?

A. I couldn’t tell you, I couldn’t answer that because I don’t know.”

Having regard to the above exchanges between the learned trial judge and counsel, it seems to the Court that those two parties appear to have been rather at cross purposes, because the learned trial judge was pointing out that the witness was entitled to complete her answer to the question put, including an explanation as to why she did not have a propensity to violence. Senior counsel for the applicant, however, believed the trial judge was instead seeking to embark on an independent enquiry. On a proper analysis of the position, the trial judge was not entering into the area retained exclusively by counsel, nor was he seeking to make a case for one party or the other. He was rather drawing counsel’s attention to the fact that the witness had not finished her sentence, and that she was entitled, having regard to the actual question posed as to her propensity for violence, to give an answer explaining that she was not, in fact, a person having such a propensity, and refuting the suggestion that she was, within normal and proper bounds. The nature of the question put was not an independent question put by the judge of his own accord, or an intervention by the judge to introduce a new topic. He was merely inviting the witness to continue, and to complete and conclude her explanation. In the context of the present case, it could not be understood as anything other than that. It was therefore properly put, and his ruling was appropriate.

The Court is satisfied that, in law, the action of the learned trial judge in the present case was not an error in law and was not such as to lead to an unfair trial, or as to undermine in any way the safety of the conviction. He was entitled therefore to reject the application to discharge the jury.

The application based on ground 1 accordingly is not sustained.

The Application for a Separate Trial
The second of the two grounds for this application is that the learned trial judge erred in law in failing to accede to an application made on behalf of the applicant to grant a separate trial from that of his co-accused.

This application based, in part, of the consequences flowing from the above exchanges, the particular basis for the application arising from the different situations which the applicant and his co-accused were facing, namely, that the applicant’s co-accused had no previous convictions, a fact which had been disclosed to the jury by counsel for the co-accused, whereas the applicant, having some previous convictions, did not, and, in reality, could not, put his character in issue, not having what might be called the “good character” existing in an absence of convictions, which his co-accused enjoyed.

Mr. Sammon, on behalf of the applicant, very fairly acknowledges that there are hazards for any accused in a joint trial, and also did so in the course of the application made to the trial judge. The application was made, not at or before the commencement of the trial, Mr. Sammon very correctly recognising that in such circumstances he could not succeed merely because one co-accused could invoke his good character, and the other (by reason of prior convictions) could not do so. The argument rather centres around the fact that the explanation which the judge allowed the witness, Miss Kiely, to make, included saying things about the applicant adverse to him, especially that he was a “violent man”, and in consequence this accentuated the disadvantage to the applicant which, in reality, he was otherwise prepared to accept provided it was, as had earlier been the case, limited to the difference based on his prior convictions. Accordingly, counsel in the course of his application at trial, based on the circumstances of this particular case, did so in the following terms:

“I sought to bring into the case a matter that I considered, in the interests of my client, vital in terms of his defence, and that is that Martina Kiely had stabbed him into the stomach with a knife under circumstances where your Lordship sought fit, I think despite protest from me in effect, to examine Miss Kiely as the judge in the trial, in relation to that matter, and drew from her an assertion that Mr. Derek Hayes, my client, is a man of violent character. That under circumstances where your Lordship in the course then of the trial directed the jury as to how to approach the good character of Mr. Edward Kelly on two occasions, tells the jury that of course the reason why this is of relevance in the case is that a person of good character will have obviously less of a propensity to do wrong. Now of course that has accentuated the difficulties that my client has been put in by your Lordship’s insolicitous intervention in the course of Miss Kiely’s evidence.” (emphasis added)

On behalf of the respondent, it is said that the charge to the jury commenced on the morning of the fourth day of the trial, and the first occasion on which an application for a separate trial was broached on behalf of the applicant, was in the course of requisitions arising from the learned trial judge’s charge. In that regard, it is not evident to this Court, on the case law, that an application cannot be made for the discharge of the jury, or for separate trials, even at such a very late stage in the trial, as here.

The respondent further argues, however, that the applicant’s case was clearly put to the jury in emphatic terms by the learned trial judge, who made it clear that the case against each accused had to be considered separately, and which important point was reiterated by the learned trial judge on more than one occasion in the course of his charge.

Conclusion
First, this Court considers the application on the basis that the applicant is entitled in law to make an application for a separate trial, even at the stage at which it was made in the present trial. Such an entitlement may, of course, be refused depending on the particular circumstances of a particular case, but in general the principle remains the same (see Attorney General v. Joyce & Walsh [1929] IR 526, as approved by this Court in The People (DPP) v. Brett, supra.).

M r. Sammon invokes extracts from The Criminal Process, by Prof. O’Malley in support of his position, However, a reading of the cited passages suggests that there is no right to sever such a trial, that it is at all times a question for the discretion of the trial judge, and that that discretion may, in the usual way, be reviewed by this court which may overturn the decision if there has been a miscarriage of justice. An interesting further exposé of the practice concerning joint trials is also found in the same chapter, in which it is stated that “in most common law jurisdictions, there seems to be a strong policy preference for joint trial”, that in some jurisdictions applications to sever are only granted in exceptional cases, and in other jurisdictions only when there is a “serious risk” of rights being infringed. These are of assistance, in general, but do not really alter in any way the manner in which the law in this jurisdiction deals with the issue.

While it is said in the course of the applicant’s written submissions that the embarrassment to the defence continued beyond conviction, and into the sentencing stage of the trial, counsel for the respondent submits that the observations of counsel for the applicant’s co-accused were, in fact, made after the jury’s deliberations had concluded, and could not therefore in any way affect this application, which is for leave to appeal against conviction. The Court is satisfied that this latter point is correct on the facts of this particular case and that point is not now germane to the application for leave to appeal against conviction.

A very useful analysis of the law relating to the trial of co-accused, and the recognition of the difficulties which may sometimes be inherent in such a trial is found in the judgment of this Court in DPP v. Brett, supra., and in which Murray, C.J. (as he then was) stated as follows:

“Joint trials of co-accused is a long established mode of trial. An accused facing a joint trial may apply to the Court to have a separate trial. Whether such an application should be acceded to is a matter for the discretion of the Court. The fundamental and important consideration is whether there is a real risk that a joint trial would render the trial of one or other of the accused unfair or result in a miscarriage of justice so that a verdict of guilty could not be considered safe. There are a number of reasons why it may be appropriate to hold a joint trial of co-accused but the most important of them relates to the concern that, when two or more persons are charged in connection with jointly committing a crime which is a single transaction, each of them, if tried separately, could attempt to cast the entire blame on one or more of the others. A separate trial in such circumstances would mean that a jury would not have the totality of the relevant evidence in order to do justice properly in the case, whatever their ultimate verdict might be. It is in the public interest that joint trials in appropriate circumstances take place provided of course there is a fair trial.

The situation which has arisen in this case is typical of, an indeed inherent, in joint trials where one accused calls a witness who gives evidence adverse to the interests of the defence of another accused.

In joint trials evidence may be given against one accused which is not admissible against another accused. For example one accused may have made a statement to the Gardaí implicating a co-accused in the crime. That evidence will be admissible as evidence against the person making the statement but not against the co-accused. Similarly, one accused may call witnesses for the defence to give an account of facts relevant to the commission of the crime and that becomes part of the evidence in the case even though unfavourable to another accused. The fact that such matters may occur in the course of a joint trial does not of itself create the risk of an unfair trial or result in a miscarriage of justice. It may do so. It all depends on the circumstances and context of each case. A witness called by one co-accused may be cross-examined by counsel for the other accused like any other witness. It is inherent in joint trials that such witnesses may be called by a co-accused. This does not render a trial unfair, particularly when the other accused has a fair opportunity to address and contest the evidence of such a witness.”

This Court is satisfied that the fact that one of the co-accused in this trial was able to put his good character before the jury, while on the contrary the applicant was not, because of his having previous convictions, was hardly a strong reason for a separate trial, since he was clearly the author of his own misfortunate record. This was so, even having regard to the evidence of the witness, Miss Kiely, rather than that of a co-accused, as in the examples given in the judgment in DPP v. Brett, supra. This Court has found that her evidence was properly admitted. She was entitled to give the evidence she did, including as to her view of the accused’s character, the evidence of a witness, here not denied in evidence by any other witness, being just as much a hazard in a joint trial as the evidence of a co-accused. No complaint is made that the learned trial judge did not charge the jury fully, thoroughly and fairly in relation to all of the applicable legal principles.

Having regard to the charge by the learned trial judge in relation to the overall evidence, and the very fair and careful manner in which the case for the applicant was put before the jury by the learned trial judge, no complaint could be made. The absence of a separate trial which the learned trial judge was entitled to refuse at the late stage in the trial at which it was made, in the exercise of his discretion (and having given his valid reasons for so doing), cannot sustain the applicant’s contention that the learned trial judge erred in law. This Court is confident that his ruling was safe and did not lead, nor was it likely to lead, to an unfair trial or to the conviction of the applicant being adjudged unsafe.

In the foregoing circumstances, neither the first ground nor the second ground for the application can succeed. The application for leave to appeal is refused.