Irish Court of Appeal
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Cite as: [2015] IECA 44
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Judgment
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THE COURT OF APPEAL Birmingham J. Sheehan J Mahon J. Appeal No. 175/2014 The People at the Suit of the Director of Public Prosecutions Respondent - and -
Aaron McCarthy APPELLANT Judgment of the Court delivered on the 2nd March 2015 by Mr. Justice Mahon 1. This is an appeal against conviction. The Applicant, Mr. McCarthy, was found guilty of two offences following a four day trial at Dublin Circuit Court on 21st July 2014. One offence was that of Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and the other offence was of taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961. The Applicant also pleaded guilty to an offence of stealing a bicycle. He was sentenced to five years, two years and two years respectively, all sentences to run concurrently; a total period of five years in prison. 2. The facts of the case can be briefly stated as follows. On 13th August 2013 the Applicant hailed a taxi to take him to Spencer Dock. En route two additional passengers joined the Applicant in the taxi. In the course of the journey the taxi driver, Mr. Singh, was punched in the face and his mobile phone, bank cards and cash stolen. His taxi was also stolen. A short while later, the Applicant and another man were arrested by gardaí following a chase on foot. 3. This Appeal is grounded on two separate criticisms by the Applicant of the learned Trial Judge’s charge to the jury. 4. The first ground of appeal concerns an important issue in the trial; the challenge to a garda witness’ evidence that he had found a stolen bank card and money on the Applicant’s person at the time of his arrest. The Applicant claimed that these items were not found on him. 5. In the course of his charge to the jury, the learned Trial Judge, referring to the evidence of the garda witness that he had found these items on the Applicant’s person, stated the following:-
7. At the end of his charge to the jury, the learned Trial Judge was advised by the Applicant’s counsel of his concern in relation to this part of the charge. At his request, the learned Trial Judge recalled the jury and redirected them on the point in question. In that redirection, the learned Trial Judge stated the following:-
9. It is noteworthy, however, that a second requisition in relation to the point in issue was not made to the learned Trial Judge by the Applicant’s counsel nor was an application made to him to discharge the jury in relation to any such concern. 10. This Court is satisfied that it would have been preferable if the learned Trial Judge had not in the course of his initial charge to the jury, made reference to the potential risk to the garda witness’ career if the verdict of the jury indicated its disbelief of his evidence, because of the possibility that the verdict of the jury would be influenced by a concern that an acquittal of the Applicant would, or might, result in the garda officer’s career coming to an end. However, this Court is also satisfied that the learned Trial Judge properly and adequately dealt with the requisition arising from these comments and that his redirection to the jury on the issue was appropriate, reasonable and proportionate. In that redirection, it was necessary for the learned Trial Judge to again refer to his earlier reference to the potential risk to the garda officers’ career if his evidence was disbelieved in order to place it in its proper context, and to ensure that the jury was aware that the redirection related to his earlier remarks, and the concern expressed in relation to them by the Applicant’s counsel. It is difficult to see what more the learned Trial Judge could have said in the circumstances. It is noteworthy that the redirection did not attract any further criticism or expression of concern by counsel for the Applicant at the time. 11. A second ground of Appeal advanced on behalf of the Applicant relates to another matter referred to by the learned Trial Judge in his charge to the jury when he stated as follows:-
13. This Court is however satisfied that the learned Trial Judge’s comments were not inappropriate, and in any event were probably in aid of the Applicant rather than detrimental to him, having regard to the fact that almost certainly the Applicant’s evidence that he was out at 2.30 a.m. in a location far from his home is a matter which had the potential to impact negatively on the Applicant in the minds of the jurors. This was not a Lucas type warning such as was discussed in DPP v. Curran [2011] IECCA95. Furthermore, this reference by the learned Trial Judge in the course of his charge to the jury was not the subject of a requisition by counsel for Applicant. 14. The Applicant’s appeal against his conviction is therefore dismissed
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