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Judgment
Title: | Director of Public Prosecutions -v- Ward |
Neutral Citation: | [2018] IECA 162 |
Court of Appeal Record Number: | 136/2017 |
Date of Delivery: | 31/05/2018 |
Court: | Court of Appeal |
Composition of Court: | Birmingham J., Mahon J., Edwards J. |
Judgment by: | Mahon J. |
Status: | Approved |
Result: | Allow and set aside |
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THE COURT OF APPEAL
Record No. 136/2017
Birmingham J.
Mahon J.
Edwards J.
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered on the 31st day of May 2018 by Mr. Justice Mahon
1. This is the appellant’s appeal against his conviction on the 10th May 2017 at Galway Circuit Criminal Court following a verdict of guilty by a jury after a two day trial in respect of two counts, namely:-
2. The appellant was sentenced on the 31st May 2017 to terms of imprisonment of six years and three years respectively, both sentences to run concurrently from the 10th May 2017. The appellant has also appealed against sentence.
3. The background to these offences is an inter family feud in the Galway area. On the 8th February 2015 Messrs. Wayne Ward and Patrick Ward attended at the A & E Department at University College Galway in connection with injuries sustained by both of them in the course of a matter unrelated to this appeal. The two men were in the company of Charlie Ward. As they approached the doors of the hospital they were approached by the appellant who proceeded to threaten to kill Charlie Ward whilst swinging a meat cleaver at the three men. The three men were again threatened by the appellant, again brandishing the meat cleaver inside the hospital doors. A hospital security man calmed the situation, whereupon the appellant proceeded to walk into the main hospital building. Gardaí arrived shortly afterwards and conducted a search, unsuccessfully, for the appellant or the meat cleaver.
4. The three complainants later attended at the garda station in Galway and made detailed statements as to what had occurred.
5. Fourteen grounds of appeal have been filed on behalf of the appellant. They are, that the learned trial judge erred in fact and / or in law in: -
(i) permitting the initial statements of Charlie Ward, Wayne Ward and Patrick Ward to be admitted as evidence pursuant to the provisions of s. 16 of the Criminal Justice Act 2006;
(ii) finding that the statements of the above named witnesses were both “voluntary” and “reliable” within the meaning of s. 16(2)(b)(ii) and (iii) of the Criminal Justice Act 2006;
(iii) finding that the statement of the above named witnesses were reliable in circumstances where the said witnesses were under the influence of alcohol and other psycho active substances, both at the time the alleged events occurred and at the time the statements were made to the gardaí;
(iv) admitting the statements of the above named witnesses in circumstances where there was no evidence to support who exactly made or signed each statement;
(v) admitting the statements of the above named witnesses in circumstances where there was no video or audio recording to support their authenticity and / or the demeanour and / or the reliability and / or the identify of the witnesses who made the said statements;
(vi) finding that the statements of the above named witnesses were reliable statements and not prejudicial to the accused;
(vii) finding that the statement of the above named witnesses were reliable in circumstances where there had been an ongoing feud between members of the accused’s family and the aforementioned witnesses as well as other members of their family;
(viii) finding that the statement of the above named witnesses were reliable, in circumstances where the statements were made shortly after an emotional and highly charged incident had taken place, where members of both families were injured and hospitalised, with the result that tensions were high and there was a serious risk that the witnesses were colluded to incriminate the accused;
(ix) failing to afford sufficient weight to the witnesses’ oral evidence that they had attempted to withdraw their previous statements on mature and sober reflection;
(x) admitting evidence that was unreliable, unfair and prejudicial to the accused having regard to all the circumstances, the admission of which was contrary to the interest of justice;
(xi) admitting inadmissible evidence when he knew or ought to have known that the said inadmissible evidence would have made the trial unfair and the verdict unsafe and / or was prejudicial to the accused;
(xii) failing to direct that there was no case to answer in circumstances where the only evidence available against the accused was of an inconsistent and tenuous character, such that a jury properly directed could not properly convict upon it;
(xiii) failing to direct that there was no case to answer in circumstances where the evidence tendered by the prosecution was of a such a prejudicial and tenuous character that it was unfair to proceed with the trial, and
(xiv) failing to direct that there was no case to answer in circumstances where there was an absolute conflict in the evidence presented by the prosecution which could not be resolved.
6. Of the fourteen grounds of appeal, all but the final three directly relate to the decision of the learned trial judge to admit into evidence the statements made by the complainants pursuant to s. 16(2)(b)(ii) and (iii) of the Criminal Justice Act 2006. These grounds will be dealt with in this judgment under the heading “Section 16 application to admit statements”. The final three grounds of appeal are indirectly related to that same issue, and will be discussed under the heading “Application for a direction”. A further ground of appeal, although not a ground originally indicated, concerns the learned trial judge’s charge to the jury in relation to the statements admitted under s. 16 that will be addressed under the heading “The charge to the jury”.
7. A “preliminary issue” has been raised by the respondent in her written submissions to the court, namely:-
(i) a perusal of the transcript of the trial discloses that many of the arguments made in the written submissions of the appellant (as drafted by his newly appointed legal team) were not raised by the appellant in the trial court. Therefore, it is submitted that these arguments are not appropriate grounds of appeal;
(ii) further, the written submissions of the appellant fail to differentiate between the arguments made by his lawyers on his behalf in the trial court and the arguments now argued on his behalf by his newly appointed lawyers based upon their consideration of the transcript of proceedings, and
(iii) the appellant’s failure to clearly differentiate between those arguments raised at the trial court and those now raised after an examination of the transcript, risks confusing the matters in issue for this honourable court;
(iv) no explanation of any sort has been put forward by the appellant explaining why the arguments now made on his behalf were not raised at his trial other than a statement “points not raised at trial” contained at the end of the appellant’s written submission relating to his conviction.
8. In support of these matters, the respondent specifically relies on the decision of the Supreme Court in DPP v. Mark Cronin (No. 2) [2006] 4 I.R.. These submissions will be considered as they arise and are deemed relevant under the two broad appeal headings as indicated above.
9. The relevant provisions of s. 16 of the Criminal Justice Act 2006 are:-
“16(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination:-
(a) refuses to give evidence,
(b) denies making the statement, or
(c) gives evidence which is materially inconsistent with it.
(2) The statement may be so admitted if:-
(3) In deciding whether the statement is reliable the court shall have regard to:-
(a) whether it was given on oath or affirmation or was video recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,
and shall also have regard to—
(4) The statement shall not be admitted in evidence under this section if the court is of opinion:-
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused, or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.
(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
Section 16 application to admit statements
10. All three complainants sought to withdraw statements made by them to the gardaí on, essentially, similar grounds.
11. Charlie Ward attended the garda station on the day following the incident. He gave a cautioned statement to Sergeant Grace Hennessy in which he provided a detailed account of his attendance at the A & E department on the previous evening and of being confronted by the appellant. When called to give evidence on the first day of the trial he replied when questioned by Mr. Fahy BL, counsel for the prosecution “I don't want to proceed with anything.. I don't want to proceed with anything. I'm not giving evidence in anything” and “I don't want to give the evidence because at that time I was on medication and, to be honest, I shouldn't have said things that I said, because I didn't know what I was saying. I was on medication at that time, and I was confused.” Mr. Ward acknowledged that he had made the statement. He said that subsequently, and prior to the trial, he wanted to withdraw his statement but was told by his solicitor that he had to come to court for that purpose.
12. Wayne Ward, another of the complainants also gave evidence. He had also made a statement at the garda station to Sergeant Philpott. In his evidence, Wayne Ward admitted making the statement and that the signature on it was his. He went on however to reject its content on the basis that he could not remember making the statement, that he had been drinking both during the day and on the night in question, was drunk and was “out of (his) head on tablets”. He said the contents of his statement were lies. Sergeant Philpott gave evidence to the effect that in his opinion Wayne Ward was lucid at the time he made this statement and did not appear to be under the influence of an intoxicant at the time. In his statement Wayne Ward provided a detailed account of what had occurred in his confrontation with the appellant and at Sergeant Philpott’s request drew a picture of the meat cleaver said to have been used on the occasion by the appellant. In the course of cross examination, Sergeant Philpott insisted that he was:-
“…an experienced member of An Garda Síochána and I would not take a complaint from somebody if there (was) any sign of impairment or anything..”
13. Patrick Ward also gave evidence on the first day of the trial. He admitted making his statement to Sergeant Philpott, but said he was drunk, mad drunk when he did so. He said he could not confirm that everything in the statement was true, and that he “could have added bits and pieces to the statement because I was on a real high from the argument in the pub”. He said he could not recollect anything that occurred on the night in question and that he was unfit to make the statement because of sleep deprivation. He maintained that he had never seen a meat cleaver on the night.
14. Garda witnesses gave evidence, in the course of a voir dire to the effect that the complainants were, they believed, in a fit state to make statements when the statements were made.
15. The learned trial judge, having heard submissions from both sides, gave separate rulings in relation to the statements made by each of the three witnesses. In relation to the statement made by Charlie Ward, he ruled as follows:
“Well, can I say at this stage that I'm satisfied that the provisions of section 16 insofar as reliability is concerned are complied with. I don't see any evidence of any prejudice that would - there certainly hasn't been - no prejudice has been identified to me that might alter the exercise of my discretion in this regard. The circumstances, to use a broad term, the making of the statement, the circumstances in which it was made, the evidence that he gave today, the explanation that he offered for refusing to testify in this case, all persuade me that there would be no injustice in invoking the provisions of section 16 and admitting this evidence.
16. A second statement made by Charlie Ward was also the subject of the respondent’s s. 16 application but was not expressly referred to in the learned trial judge’s ruling. However, it was not subsequently introduced into evidence by the respondent and therefore is not an issue in this appeal.
17. In relation to statements made by Wayne Ward and the application to have them admitted pursuant to s. 16 of the Act of 2006, the learned trial judge ruled as follows:-
“Well, I can’t understand that the accused might take the view that this - that to admit these statements is prejudicial to him, but I haven't heard in any legal sense any submission that would persuade me that there are grounds to find this prejudicial within the meaning of - within the confines of section 16. He's refused to give evidence in accordance with the statement that he made. The statement has been proven. While he has made assertions today, for the first time, concerning what he perceives to be his lack of memory of what went on, while at the same time making a positive statement that they're all lies, I can't - I can only speculate as to what his motivation might be for this, but I'm satisfied that within the meaning of section 16, I can rely on the - I can rely on this to the extent that I'm prepared to admit it. There we go. Can we have the jury back?”
18. In relation to a similar application made in respect of statements made by Patrick Ward, the learned trial judge ruled as follows:-
“The difficulty, I suppose, from the point of view of the defence in this situation is - in terms of this particular submission is that on the one hand the witness is saying he doesn't remember; yet on the other hand, he's saying he definitely wasn't threatened and he definitely didn't see a cleaver. So it's - there's an internal inconsistency in that along the line, and it seems to me that there's no qualitative difference between the submission that's made by the prosecution in relation to this particular witness and the other two, the same situations apply. I am satisfied that within the meaning of section 16, the statement is reliable and I'm therefore disposed to exercise my discretion in admitting it.”
19. A decision by a trial judge in relation to the admission of evidence, and including a decision to admit statements into evidence pursuant to s. 16 of the Act of 2006, carries significant weight in circumstances where the trial judge has had the opportunity to hear evidence first hand from relevant witnesses as well as being in a position to assess their demeanour. A trial judge is, generally speaking, in a more advantageous position than is an appellate court to determine such matters. An appellate court will not usually intervene unless it can be established that certain specific requirements were not adhered to or where it is clear that an injustice would arise by not interfering.
20. The language of s. 16 of the Act of 2006 is quite specific in many respects. The section provides for the circumstances where a pre trial statement may be admitted into evidence if the witness either refuses to give evidence, denies making the statement or gives evidence which is materially inconsistent with it. The section provides that a court must be satisfied of certain specific matters before it can make an order admitting statements into evidence. These include, importantly, that the trial court is satisfied that the statement was made voluntarily and is reliable. If so satisfied, the court must also be satisfied that either statement was given on oath or affirmation or contained a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief or the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. In deciding on its reliability the court must have regard to whether it was given on oath or affirmation or was video recorded or, if neither be the case, that by reason of the circumstances in which it is made, there is other sufficient evidence in support of it reliability. The section also requires the court to take account of any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or, where the witness denies making the statement, any evidence given in relation to the denial.
21. Section 16(4) provides that a statement shall not be admitted in evidence under this section if the court is of the opinion that:-
22. It is therefore the position that in circumstances where one of the three predicated grounds for the introduction of a previous witness statement has been met (refusal to give evidence, denial that a statement was made by giving evidence which is materially inconsistent with it) the trial judge must consider an extensive list of factors that condition admissibility.
23. The rulings given in relation to each of the statements provided by the three witnesses were brief. Only two of those rulings, those relating to Charlie Ward and Patrick Ward’s statements, referred to reliability. The ruling in relation to the statement of Wayne Ward made no reference to its reliability. The first two rulings referred to the issue of prejudice whereas the ruling in relation to Patrick Ward made no reference to that issue. The learned trial judge’s rulings make no reference to the statements being given on oath or affirmation or containing a statutory declaration as to its truth or that the court was otherwise satisfied that when the statements were made the witnesses understood the requirement to tell the truth.
24. In the ruling relating to the statement of Charlie Ward the learned trial judge expressed his satisfaction that no prejudice or injustice would arise if his statement was admitted. In relation to the statement of Wayne Ward he again referred to the lack of prejudice, while in the case of Patrick Ward’s statement none of the foregoing was referred to.
25. The Superior Courts have frequently drawn attention to the desirability, and indeed the necessity of giving reasons when rulings or decisions are being given. In O’Mahony v. Ballagh [2002] 2 IR 410, the Supreme Court quashed a conviction by way of certiorari and remitted the matter to the District Court on account of a failure by the trial judge to give reasons for refusing applications for a direction at the close of the prosecution case and later, at the close of the defence case. Delivering the court’s judgment, Murphy J. said:-
“I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice it would be undesirable - and perhaps impossible - to reserve decisions even for a brief period. On the other hand it does seem, and in my view this case illustrates, that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing…”
26. In DPP v. Murphy [2013] IECCA 7, McKechnie J. said:-
“It is regrettable however that the ruling of the trial judge, described by the DPP as ‘terse but adequate’ was not somewhat more detailed or discursive than what it was. Unfortunately, but factually, it is not informative to an appellate court to simply say the statutory conditions have been met; this is a conclusion which follows from a preceding finding, the basis for which should be set out . As matters were left, one cannot identify any express finding, particularly of fact, on which this conclusion was based. There is no stated explanation or reasons given for the judge preferring some witnesses over others of what impressed him about those whose evidence he ultimately accepted..”
27. In this case, the statements of the three witnesses admitted into evidence pursuant to s. 16 were crucial to the prosecution case and almost certainly contributed significantly to the conviction of the appellant. As such, the statements were required to be assessed strictly in accordance with the provisions of s. 16 and to satisfy the requirements of that section. To a very significant extent the rulings of the learned trial judge did not engage with many of them and it is therefore not possible to determine if in fact they were considered by him.
28. In these circumstances the court is satisfied that the deficiencies in the learned trial judge’s rulings, as indicated above, were such that the trial was rendered unsatisfactory. It will therefore allow this ground of appeal.
Application for a direction
29. At the conclusion of the prosecution case counsel for the appellant made the following application to the learned trial judge:-
“…my application is..for a direction that there's no case to answer. My basis for it is that I say that the prosecution evidence does not establish the offence or offences which the - which Mr Ward has been charged with. We haven't any concrete or any definitive evidence that shows the presence of a meat cleaver or that it was produced. I say that there's no evidence -I say the only evidence there that suggests the presence of a meat cleaver comes from the witness testimony of three prosecution witnesses that gave statements to the guards on the day after this alleged event, which they subsequently sought to withdraw, first via the gardaí and then here in open court. They say that they were under the influence of drink and drugs at the time that the incident occurred and I believe, at the time that they made the statements, indeed, one of the witnesses says he didn't even recognise the guard to whom he allegedly made the statement. I suppose the fact of the matter is they don't stand behind those statements that were taken by the gardaí. Further, I'd say that there was no evidence that Mr Charlie Ward was put in fear at the time. In fact he gave his viva voce evidence here where he said he wasn't in fear nor has ever been in fear of Mr Ward.”
30. The learned trial judge ruled as follows
“Well is there evidence upon which a jury could properly convict, a jury properly directed could convict of these two offences? I'm satisfied that there is, whether or not the jury takes the same view is a matter for them.”
31. In the court’s view, this application was entirely mis-conceived. It was, in effect, for the most part, simply an effort to re-open the subject of the admission into evidence of the statements from the three complainants pursuant to s. 16, and which had been earlier ruled on by the learned trial judge.
32. The statements of the three complainants had been admitted into evidence and that being so the learned trial judge was correct to allow the matter proceed and for the jury to reach their own conclusion in relation to them with due regard to the evidence given by the three complainants and others.
33. In this court’s judgment in DPP v. Campion [2015] IECA 274, delivered by Birmingham J. (as he then was), it was stated that:-
“No case where s. 16 is invoked is likely to be straightforward. The witness is saying something different at trial from what he had said on a previous occasion. The jury is being asked to rely on and to act on what was said on the previous occasion. The jury is invited to so rely although the witness will have been established to be someone who has lied on a significant occasion, whether that was in court or in the earlier statement. It is quintessentially a matter for the jury to decide whether they can identify where the truth lies, and if the view is that the truth is to be found in the earlier statement sought to be relied on by the prosecution, whether they can be sufficiently confident that that is the case and that they can proceed to return a verdict of guilty beyond reasonable doubt.”
34. This ground of appeal is therefore dismissed.
The charge to the jury
35. It is contended on behalf of the appellant that the learned trial judge erred in fact or in law in failing to direct the jury how to treat and weigh that evidence. Specifically, it is contended that the learned trial judge failed to engage with s. 16(5) of the Criminal Justice Act 2006, which states:-
“In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.”
36. In the course of his charge to the jury the learned trial judge said the following:-
“Now, you have to consider every point that was raised, you only have to decide enough that you can say whether the prosecution had proved beyond a reasonable doubt either or both of the charges. You'll do that by considering all the evidence, form your own judgement about the witnesses and the other evidence, by the other evidence I mean the statements that you'll have with you, and decide which you can rely on and which you can't rely on.
..So, in this case and this is my closing to you, if you like, in this case you have the statements made by Charlie Ward, Wayne Ward and Patrick Ward, made to the gardaí later on in the day when these events took place. Statements were read to you by the gardaí who took the statements and they're evidence in the trial. Doesn't mean they're true, but they're evidence. You've also seen and heard the three persons who made these statements and the evidence that they gave in the witness box. Again, what you've heard is evidence. Doesn't mean it's true, whether it is or not is a matter for yourself to consider.
..It's for you to decide, ladies and gentlemen, what to believe; what can you rely on, what can you not rely on. If you have a doubt as to whether or not the threat was made by the accused at all, then you have to acquit. Even if you decide he did make the threat, but you have a doubt as to whether he intended that he would be believed, then you have to acquit. It's only if you're satisfied that prosecution have proved beyond a reasonable doubt on the evidence, the evidence that you accept that he made the threat and he intended Charlie Ward would believe that he intended to carry it out, that you can convict.
Look at all the evidence, decide what to believe. Use your ordinary common sense when you're doing this, apply your own personal and your own collective experience of life.
.. If any single piece of evidence is capable of having two different meanings and one of those favours the accused, then unless you're satisfied that the prosecution have proved their version beyond a reasonable doubt, you must favour the version that favours the accused.”
37. In the court’s view this charge was perfectly adequate in relation to the admission of the statements pursuant to s. 16. The jury were told in simple terms that they had to consider the content of the statements made and admitted pursuant to s. 16, and the evidence of the witnesses given in the course of the trial. They were told, again in simple terms, that it was a matter for them to decide where the truth lay. It was a relatively straightforward task and would likely have been easily understood and followed by the jury.
38. A further criticism of the learned trial judge’s charge to the jury is made in relation to how he approached the issue of s. 11 of the Firearms and Offensive Weapons Act 1990 (as amended). That provides:-
“Where a person, while committing or appearing to be about to commit an offence, or in the course of a dispute or fight, produces in a manner likely unlawfully to intimidate another person any article capable of inflicting serious injury, he shall be guilty of an offence…”
39. The appellant’s criticism was that he did not direct the jury in relation to the establishment of a dispute in the first instance, and that he erroneously focussed the jury’s minds solely on the question of whether it was proven that the appellant had produced a meat cleaver in a manner likely to intimidate another person. The learned trial judge charged the jury on this subject as follows:-
“The second offence is under section 11 of the Firearms and Offensive Weapons Act and it makes it an offence to unlawfully produce an article in the course of a dispute that is capable of inflicting serious injury in a manner likely to intimidate another person. Again, you'll see that this is worded in such a way that it's not a necessary proof that a person has to actually be intimidated by what happened. It's just a case of looking at the circumstances and, first of all, you've to consider if the accused man unlawfully produced an article and that article is a meat cleaver and that that meat cleaver is capable of inflicting serious injury on somebody and if you accept that he did produce it, did he produce it in a manner which was likely to intimidate another person? Not necessarily Charlie Ward or anybody else, another person. So you look at the circumstances and say, if you accept the evidence, did that amount to producing an article in a manner that was likely to intimidate another person, not just Charlie Ward or anybody else.
So, it's for you to decide if the prosecution have proved beyond a reasonable doubt that the accused produced such an article. If you're satisfied that the prosecution have proved the case, then you have to convict.
… As to the second charge, as I said to you, I don't think you'll have any difficulty in concluding that if there was a meat cleaver involved, that it was an article that was capable of inflicting serious injury, I don't think you'll have a problem dealing with that. But it's only if you're satisfied that the prosecution have proved beyond a reasonable doubt that he produced a meat cleaver in a manner alleged that you can convict…”
40. In the court’s view, the criticism levelled at this aspect of the learned judge’s charge to the jury is entirely misconceived. It was perfectly clear to the jury based on what was said to them by the learned trial judge in the course of his charge and also from the evidence heard by the jury in the course of the trial that what had occurred in the environs of the hospital was a “dispute”. There can have been no doubt about that. In those circumstances, the charge to the jury in respect of the s. 11 offence was reasonable, clear and perfectly adequate.
41. It is further contended on behalf of the appellant that the learned trial judge misdirected the jury on the issue of the standard of proof. While it is acknowledged that the learned trial judge referred to the standard of proof on a number of occasions it is claimed that he misdirected them in terms of explaining the concept. In particular it is argued that the reference by the learned trial judge to the jury being sure was erroneous. In particular it is said that the following reference was inappropriate:-
“That being said, in criminal trials, it's a serious business not to be taken lightly, but you're not looking for mathematical certainty, 100% certainty is not what you're after. I suppose the best way of putting it is that you have to be sure. You have to make a decision that you're happy with…”
42. In the court’s view this explanation of the concept of the standard of proof to be applied was not in anyway deficient. It impressed on the jury the fact that they had to be strongly convinced of the guilt of the appellant before reaching a verdict of guilty, and that they had to be happy with their decision. If anything, in this respect the charge to the jury was, if anything, unnecessarily supportive of the appellant’s position.
43. This ground of appeal is dismissed, as is the ground relating to the contention that the jury verdict was perverse and against the weight of the evidence. The jury was entitled to find the appellant guilty of both counts on the evidence presented to them. The court is satisfied that the threshold for intervention by this court on ground of perversity as enunciated in DPP v. Tomkins [2012] IECCA 83 has not been met.
The Cronin point
44. While the court has considered the criticisms directed at the learned trial judge’s charge to the jury, and has dismissed each of them on their merits, it is noteworthy that no requisitions of any nature were made in relation to the learned judge’s charge. Had this court found the charge to have been deficient under any of the headings complained of it would have considered whether it was appropriate to consider submissions in relation thereto in circumstances where the points in question had not been raised by way of requisition and may well have decided against intervention on that basis. This very issue was considered by the Court of Criminal Appeal in DPP v. Cronin [2003] 3 I.R.. In the course of his judgment, Hardiman J. stated:-
“Throughout the history of this court considerable emphasis has been passed on whether a point relates to something which was thought at the time, by those involved in the case, to be of real importance, as opposed to a point devised much later, perhaps by persons who had no connection with the trial and only after a trawl of the transcript..”
45. In the case of the same name ([2006] 4 IR 329) Geoghegan J. in the Supreme Court stated at para. 46 the following:-
“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.
Conclusion
46. The appellant has succeeded in relation to the grounds of appeal concerning the admission into evidence of statements pursuant to s. 16 and the court will therefore allow the appeal and quash the verdicts and consider in due course whether or not there ought to be a re-trial.
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