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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Conroy & ors [2015] IECA 188 (31 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA188.html
Cite as: [2015] IECA 188
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Judgment
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COURT OF APPEAL Neutral Citation Number: [2015] IECA 188
CCAOT0122/2012 CCAOT0123/2012 CCAOT0124/2012 Peart J. Sheehan J. Mahon J. THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT - AND -
JIMMY CONROY, MICHAEL CONROY AND THOMAS SWEENEY APPLICANTS JUDGMENT OF THE COURT DELIVERED ON THE 31ST DAY OF JULY 2015 1. On the 1st March 2012 all three applicants were convicted of the certain offences and received sentences of imprisonment following a five day trial at the Circuit Criminal Court in Galway. The offences were:
(b) Production of an article capable of inflicting serious injury contrary to section 11 of the Firearms and Offensive Weapons Act 1990; (c) Assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997 3. The offences for which the applicants were convicted were committed in the house of the Conroy family into which members of the Sweeney family had been invited following a ceremony of marriage in which the first named applicant, Jimmy Conroy, who was then aged 16 years married a member of the Sweeney family. 4. It would appear, at least from the prosecution's version of events, that in the early hours of the morning following the wedding a violent row broke out in the Conroy house, and that significant injuries were sustained by some members of the Sweeney family, allegedly inflicted with the use of a saw, an axe, a knife and a sword, following which the Sweeneys left the house and made their way to an location known as Streamstown Cross about 1.2 km away from the Conroy house, and where they met members of An Garda Siochana. 5. The prosecution case was that the injuries sustained by members of the Sweeney family had been inflicted by the applicants while those members of the Sweeney family were in the Conroy house. 6. While none of the applicants gave evidence, as is their right. However, the thrust of the defence being put up for consideration by the jury could be gleaned from statements made by them during the course of the investigation, and from the nature of questions asked by defence counsel to prosecution witnesses during cross-examination. In brief it can be said that the defence case was that while there had undoubtedly been a row within the house before the Sweeneys left, no injuries were inflicted there, and that the injuries which were evident to Gardai when they met up with the Sweeney group can only have been sustained by them during some row among themselves that must have broken out on the road between the Conroy house and Streamstown Cross. 7. On this appeal each applicant is separately represented by solicitor and counsel. A number of grounds of appeal are relied upon by each, but a common ground urged by all applicants relates to the judge's charge to the jury at the conclusion of the evidence. They say that in the course of the third section of his speech to the jury at the conclusion of the evidence when he came to deal with the prosecution's case, the evidence given by the prosecution witnesses, and the case being put up by the defence and the facts relied upon in that regard, even though they did not give evidence in court, he did so in a way that unfairly focussed upon the case being made by the defence, and in a way that distracted the jury's attention away from the first and most important question, namely whether the prosecution had proved its case beyond a reasonable doubt, and towards focussing upon whether the defence had satisfied the jury that the prosecution case was flawed - in other words, that the burden of proof was effectively reversed, and presumption of innocence undermined, notwithstanding his clear explanation of those principles earlier in his charge to the jury, and about which they make no complaint. 8. It is submitted by all appellants that the judge by expressing himself in the way he did at certain stages during his charge was not impartial in the manner in which he summarised and commented upon the evidence for the prosecution's case, in so far as he did, and the case being put up by the defence for consideration, and that the jury will have been left in little doubt as to the lack of merit in the defence case which the jury was going to consider during its deliberations. 9. It has been submitted by all applicants that the fact that the trial judge from time to time throughout his charge reminded the jury that issues of fact were for them and them alone to decide, and that he warned them that if he strayed into commenting on the evidence or expressed any opinion on it they should disregard that completely, it is nevertheless an insufficient antidote to an otherwise unbalanced and partial charge. In that regard the Court has been referred to a passage from the judgment of O'Donnell J. in People (DPP) v. Rhattigan [2013] IECCA 13 where within para. 20 he stated:
'While it is always important that the trial judge summarises for the jury the defence case as well as the prosecution case he is not obliged to refer to every piece of evidence that the jury heard and still less is he obliged to refer to every argument put forward in speeches to the jury.” 13. How the trial judge charges the jury in relation to the defence case will depend on the particular case at hand, and the length of the trial, and whether the defence went into evidence will be a relevant factor in deciding in particular how detailed a summary of the evidence should be given by the trial judge in his charge. This is put well by Coonan & Fahy in their book already referred to, where at para 3.23 they state:
'It is a judge's duty, in summing up to a jury, to give directions about the relevant law, to refer to the salient pieces of evidence, to identify and focus attention upon the issues, and in each of those respects to do so as succinctly as the case permits. It follows that as part of this duty a judge must identify the defence. The way in which he does so will necessarily depend on all the circumstances of the particular case. When the defendant has given evidence it will usually be desirable, though it may not always be necessary, to summarise his evidence ...'." 15. The matters which were urged by counsel for the applicants as giving rise to reasonable doubt can be briefly set out as follows, without going into full detail:
the conflict of evidence given in relation to the condition of the saw and colour of the handle of the saw alleged to have been used; the differing accounts of how the row in the house started as given by john Paul Sweeney and Eddie Sweeney; differing accounts given by the Sweeney witnesses in relation to their departure from the Conroy house; the fact that Mary Sweeney was noted by the hospital as having injuries, yet in her evidence she did not mention receiving injuries in the Conroy house. This was urged by the defence to suggest that she was injured after she left the house, and that in turn gave support to the defence case that some sort of row among the Sweeneys must have occurred while they were on their way to Streamstown Cross; the fact that Eddie Sweeney had denied having had a mobile phone, yet Mary Sweeney was able to give Gardai his mobile phone number, and this raised the question as to why neither ambulance nor Gardai were phoned by the Sweeneys; the fact that no weapons were found at the Conroy house, and in particular the saw, the knife and the sword said by the Sweeneys to have been used by the applicants; the fact that no search of the bushes at Streamstown cross was carried out by the Gardai when they stopped there; while an axe head and axe handle were produced in court, one did not fit the other; the fact that while blood was seen by Gardai on Kathleen Conroy's clothing when they called to the Conroy house, Garda Grady stated that she could not recall if she inquired as to how it got there (but Kathleen Conroy said that she did ask), and no forensic examination was carried out to establish whose blood it was. Similarly there were blood spatters on a door and again no forensic examination was carried out in relation to that; the fact that neither the Conroy house nor the area at Streamstown Cross was declared a crime scene, and therefore no searches were carried out, it being at least suggested that if a search at Streamstown Cross had been carried out it might have revealed weapons consistent with the injuries having been sustained by the Sweeneys as a result of a row among themselves on the road to Streamstown Cross; the evidence as to the extent of the injuries sustained by the injured parties and the extent of the bleeding that would have resulted, and yet they were able to walk the distance of 1.2 km from the Conroy house to Streamstown Cross without calling either the Gardai or an ambulance or even calling to one of the houses that were along that road. This was said to also support the defence case that it was after the Sweeneys had left the Conroy house that these injuries were sustained; the fact that Garda Steede had stated that when he saw the Sweeneys on the road as he passed them he saw no obvious signs of injury, nor saw anybody staggering, and the fact that he did not stop - all suggestive, it was submitted, that the injuries were likely to have been sustained after that and quite soon before the Gardai arrived; The judge's charge 18. In addition, of course, he dealt with the presumption of innocence, the standard of proof beyond a reasonable doubt, and the fact that the onus was at all times on the prosecution to prove its case beyond a reasonable doubt. Specifically he stated that the defence does not have to prove anything, and can simply sit back and wait for the prosecution to prove its case beyond a reasonable doubt. He specifically referred to the fact that in this case none of the accused persons had chosen to give any evidence, but made it clear that the fact that they had not given any evidence is not something from which they may draw any adverse inference, since to do so would be to wrongly place some onus of proof upon the accused persons. 19. The trial judge clearly explained the nature of the offences alleged against each accused, and the ingredients of those offences which the prosecution had to prove beyond a reasonable doubt before a guilty verdict could be brought in. 20. No complaint is made by counsel for the applicants in relation to the first two parts of the judge's charge, nor could they reasonably do so. Their focus is rather on the third part where he dealt with the evidence, and the issues arising therein. It is important, however, before dealing with his summary of that evidence and some of his comments upon it, to emphasis that at the outset of his charge the trial judge told the jury that if during the course of his summary of the evidence and the issues arising he expressed any opinion on that evidence he would be "trespassing upon [their] jurisdiction", since it was for them only to decide what the evidence established, and he explained that in so far as he might express any opinion upon the evidence they could either accept it or reject as they chose. He explained that he would be highlighting certain questions that the jury might need to ask themselves during their deliberations, and certain issues, but that any decision on those matters was entirely a matter for the jury to decide upon. He assured them that what he would be saying was for their guidance and assistance only and that they could accept or reject anything that he might say, and that it was solely for them to be satisfied about the evidence beyond a reasonable doubt. 21. Having made those very clear statements he proceeded to state that the defendants each deny any assault upon the alleged victims while they were in the Conroy house, and he referred to the fact that none gave evidence but that the case they were making was evident from questions that were put to the prosecution witnesses in cross-examination, and statements made when interviewed by the Gardai. He gave examples of some of those questions and answers given, but stated that he was doing so from his notes, and told them that in the event that his note did not accord with what they heard, then they should rely upon what they had heard and not what he said. He then told the jury that they would need to "carry out a forensic examination of that" (i.e. the case being put up by the defence by way of the questions asked in cross-examination and the statements made at interview), and said that he would proceed to make suggestions as to "the order of the questions that you might ask yourself in considering that forensic examination". However, he went on to make clear that he was doing so only for their guidance and that they were perfectly entitled to ignore his suggestions. 22. The first question suggested by the trial judge that the jury must ask themselves was:-
24. He proceeded then to say that in considering that issue they might consider it helpful to look at what caused the injuries, and for that purpose to look at the nature of the injuries - i.e. were they in the nature of scratches, scrapes and lacerations which could be caused without the use of an implement, or rather were they injuries which could only have been caused by a sharp implement and with force. He then referred to the medical evidence in the nature of a report from Dr Gaffney and the evidence given by Mr Casey as to what he saw when the Sweeneys came to his house. Having described that evidence of the nature of the injuries he stated that if they concluded that these injuries were not sustained as a result of the forceful application of a sharp instrument, then that would indicate that they did not believe the account of what happened and how the injuries were inflicted as given by the prosecution witnesses (the Sweeneys), and in those circumstances they should waste no more time and simply bring in a not guilty verdict "because the fundamental credibility of the Sweeneys was impugned". 25. If on the other hand they believed that the injuries were sustained by the use of a sharp implement, they should move to the second question he was suggesting, namely "what was the origin of those implements" and went further and said that if they got as far as asking this second question they were no longer talking about implements but rather "weapons". He referred to the evidence given by Mary Sweeney when she asked where these weapons the Sweeneys are supposed to have used upon themselves somewhere along the road to Streamstown Cross "had come out of". The judge asked "did the Sweeneys bring the weapons to the Conroy house" bearing in mind that they had originally planned to stay at the Ardagh Hotel that night but found they could not do so - hence they had ended up at the Conroy house where they were made welcome. 26. The trial judge then stated:
(a) they had the weapons concealed on their person when they left the Ardagh Hotel, or (b) they had the weapons concealed in and about the vicinity of the road outside the Conroys property, having done so in advance of the day, or (c) they found the weapons in or around the Conroy house which they brought with them when they left the property and used on one another when they were on the road.
29. The trial judge then moved on to consider the evidence as to the alleged use by Michael Conroy of a samurai sword in his assault upon John Paul Sweeney. He noted that it was corroborated by Mary Sweeney who said that she saw Frankie Conroy take two such swords out of the boot of Michael Conroy's car, take the cover off one and give the other to Michael Conroy, and that she begged him not to use it. He described this evidence as "curious" because such weapons are not normally found in those parts of Ireland, and also because it is not the sort of weapon that can be easily concealed on one's person, given its size. He referred also to the evidence of Gardai who said that they had found two covers for Samurai swords on the grass not far from the Conroy front door, and that this could amount to corroboration if the evidence of the Gardai was accepted by the jury - which he said again was a matter for the jury. He referred to the fact that there was no direct evidence of the presence of the swords (since they had not been found) but he suggested the jury could ask themselves if the presence of the covers on the grass might amount to an inference that there were swords in the covers and were removed from the covers, and whether Mary Sweeney's evidence in that regard was "reliable, compelling and truthful, and that this is so notwithstanding the absence of any forensic evidence connecting the sword covers to the accused". He went on:
32. It was at this stage towards the end of his charge that the trial judge made reference to some of the matters to which counsel for the applicants had referred in their speeches to the jury for the purpose of suggesting to the jury that it should have a reasonable doubt, and which have been set forth earlier in this judgment. He said that there had been inconsistencies highlighted in relation to the chronology of events as given by the witnesses who gave evidence, and referred also to the fact that a huge amount of drink had been consumed by everybody. He said also that the jury will have considered the fact that the Sweeneys passed various houses along the road to Streamstown Cross, and then stated: "you've taken on board each and all of the matters that have been canvassed and you still, because of the nature of your forensic trawl through the forensic silent evidence, you have come to the conclusions which are inescapable if that's your view". 33. The judge then made reference to there being no history of violence between these two families, and the point made by counsel to the jury that if the amount of blood alleged to have flowed from these wounds was correct they could not possibly have got as far as Streamstown Cross. This was a reference to the applicants' contention that for this reason the injuries must have been inflicted after they left the Conroy house. The trial judge stated in this regard: "Well, with all due respect, Dr Casey was in the witness box and he wasn't asked to make any comment on that question, so it's entirely speculative and not based on the evidence in the case with the greatest of respect”. He referred to the fact that counsel had made reference to the fact that one of the Sweeney family, David Sweeney, had not been called to give evidence, but said that he could not see the relevance of that fact, but made it clear that it was a matter for the jury to see if it was relevant to them. He concluded his charge by saying:-
35. This Court is satisfied that despite an impeccable charge to the jury contained in the first two parts of the charge, the manner in which at the very commencement of the third part of his charge immediately focussed his attention on the case being made by the defence by means of the questions put in cross-examination and by reference to statements made to the Gardai when interviewed, and laid put a clear path by means of a series of questions that the jury could ask themselves as shown above, an impression could well have been given to the jury that if, having considered the defence case by means of those questions, and having examined the case being put up to them by the defence they did not accept it as being likely or possible, then they should convict. That of course is to reverse the burden of proof. In other words, if the defence failed to persuade the jury of its case, they could regard the prosecution as having proven its case beyond a reasonable doubt. 36. There is no doubt that in the earlier parts of the charge the trial judge stated clearly that the onus of proof lay at all times with the prosecution and that the prosecution must prove its case beyond a reasonable doubt. It is also clear that before he dealt with the defence case he stated to the jury that if he commented upon any of the evidence in a manner with which they disagreed they should disregard his comments entirely, and form their own view of the evidence. 37. The difficulty in the present case is that despite the perfection of parts one and two of the charge, the trial judge failed to summarise the evidence of the prosecution witnesses, and draw attention to any issues in that evidence which the jury would have to resolve beyond a reasonable doubt before they could convict. The speeches of counsel for the applicants had undoubtedly suggested a number of matters which they contended would or should give rise to a reasonable doubt as to whether the prosecution had proven its case to the required standard, and these have been referred to already. While the jury had heard those speeches, it is what the trial judge says in his charge that will resound the loudest in the ears of the jury when they leave the court to commence their deliberations. For that reason the trial judge ought not to simply refer briefly to the matters to which counsel has referred, but must himself lead the jury through the prosecution case in a balanced and fair way so that the jury's mind is alert to the need to forensically examine all aspects of that case, and the jury's attention should be drawn to specific issues of controversy, so that they can be guided as to matters which may give rise to a reasonable doubt depending on the jury's view of the matter. 38. The case being put up for the jury's consideration by the defence, whether by way of oral evidence, or as in this case, by reference only to statements made or to questions put in cross-examination, must also be summarised by the trial judge in a fair and balanced manner. But the prosecution must have at least on a prima facie basis have proven its case beyond a reasonable doubt before the jury needs to consider the case being made against it by the defence. An unproven prosecution case cannot be improved in any way by a failure by the defence to rebut it. 39. This Court considers that there is a real risk in the present case that the jury was led down a particular path which focussed attention first of all upon the defence case by the way the trial judge suggested how they might approach their consideration of the case by reference to particular questions that they should ask themselves. If one takes the very first of those questions to which reference is made at paragraph 21, namely whether the jury was satisfied beyond a reasonable doubt that the injuries were sustained at the Conroy house, or was it reasonably possible that the injuries were sustained after the Sweeneys left the Conroy house. There is no doubt that he went on to suggest that if the jury was satisfied that the latter was the case, they simply had to acquit the defendants. But the unspoken corollary to that statement could, at least in the minds of the jury, be that unless the jury was satisfied that the injuries could have been sustained after the Sweeneys had left the Conroy house, the prosecution had proven its case beyond a reasonable doubt that the injuries were sustained in the Conroy house. That is the sense in which it is contended on this appeal that the trial judge focussed the attention of the jury on issues in a way which suggested that there was an onus upon the defence to prove its case before the onus upon the prosecution had to be discharged. This is in spite of the fact that in the earlier part of his charge the trial judge had stated that the onus of proof never shifted to the defence. This Court agrees that this created a risk of unfairness, and a risk that the jury approached its task having been wrongly directed in this regard. 40. The Court also notes that at the conclusion of the judge’s charge, during requisitions, Counsel for the appellants made strong requisitions in relation to what they said was the unfairness of the charge overall, but the trial judge chose to not say anything further to the jury to address that concern. 41. The Court will allow the appeal against conviction in respect of each applicant. |