Judgment
Title: | Director of Public Prosecutions -v- Farrell | Neutral Citation: | [2018] IECA 213 | Court of Appeal Record Number: | 171/2015 | Date of Delivery: | 28/06/2018 | Court: | Court of Appeal | Composition of Court: | Mahon J., Edwards J., Hedigan J. | Judgmentby: | Hedigan J. | Status: | Approved | Result: | Dismiss | | |
THE COURT OF APPEAL
Mahon JEdwards JHedigan J171/2015 The People (at the suit of the Director of Public Prosecutions) Respondent Appellant JUDGMENT of the Court delivered on the 28th day of June 2018 by
Mr. Justice Hedigan
1. The appellant was tried before a judge and jury in Dublin Circuit Criminal Court between 13th and the 19th May, 2015 in relation to three counts. The appellant was found not guilty in relation to a count of assault contrary to section 3 of the Non Fatal Offences Against the Persons Act 1997 and a count of criminal damage contrary to section 2 of the Criminal Damage Act 1991, both alleged to have occurred between 10th and 12th June 2013. The appellant was found guilty in relation to a count of assault causing serious harm contrary to section 4 of the Non Fatal Offences Against the Person Act 1997, alleged to have occurred on 18th June, 2013. He was sentenced to 8 years imprisonment. The appellant now seeks to have his conviction quashed by this Court.
Background
2. The injured party in this case, Ryan Hickey gave three statements to the Gardaí in which he nominated the appellant as having assaulted him. At trial, the injured party retracted his statements and stated that an individual named “Whacker” had committed the assault against him, not the appellant. Given that the facts of the case are disputed, for clarity, this judgment will set out the conflicting factual accounts given by those concerned in chronological sequence.
3. On 18th June, 2013 at approximately 8.10 pm Mr Hickey stated that he was in a car with his friend, Niall Byrne rolling a joint. The car was parked in Mr Byrne’s driveway in Castle Park Estate, Tallaght. The appellant came up to the car in the driveway, and asked to be let into the car to have a chat. Mr Hickey got out of the car and lifted his seat to let the appellant into the car. The appellant got into the back of the car and stated “I heard you were a mad rat, Indo”. The appellant proceeded to attack Mr Hickey with a Stanley blade. Mr Hickey stated that Mr Byrne pulled at the appellant’s arm to loosen his grip. At this point, Mr Hickey managed to escape, got out of the car and ran home. His mother and girlfriend were home and he asked them to call an ambulance. At the time, he told his mother that “Fat Farreller” (the appellant) had assaulted him.
4. Garda Jennings gave evidence that at approximately 8:25 pm, he received a call informing him that Mr Hickey had been stabbed. He attended Mr Hickey’s family home at 8:30 pm. Upon arrival, he described seeing Mr Hickey as having towels over his head and face, with blood dripping down through his hands and the towels. Garda Jennings asked Mr Hickey who had stabbed him. Mr Hickey informed him that “Fat Farreller” had assaulted him. This was noted by Garda Jennings in his notebook. Mr Hickey was then taken to hospital.
5. Garda Jennings stated that he later took a statement from Mr Hickey in Tallaght Hospital at approximately 1:00 am on 19th June, 2013. This was approximately four hours after the assault had occurred. This was the first of the three statements Mr Hickey gave to the Gardaí. The injured party nominated the appellant as having assaulted him, stating that the appellant “sliced him” with a Stanley blade. Mr Hickey made a second statement at Tallaght hospital the next day, at approximately 2pm. Mr Hickey had been discharged and was waiting on a prescription from the doctors at the time. Mr Hickey again nominated the appellant as having assaulted him, stating that the appellant had “cut the head off him”.
6. On 25th June, 2013 Mr Byrne (the friend of Mr Hickey who had been present in the car at the time of the assault) declined to make a statement when requested to do so by Gardaí. He stated that he hadn’t seen anything on the night in question. Later, on 5th August, 2013, Mr Byrne made a statement to the Gardaí claiming that a fourth person called “Whacker” had been present in the vehicle and that “Whacker” had assaulted Mr Hickey, not the appellant.
7. On 25th September, 2013, Mr Hickey made a third written statement to the Gardaí at Terenure Garda Station confirming the appellant assaulted him, that there were only three people in the car when he was attacked including himself and that he didn’t know anyone called “Whacker”.
8. At trial, Mr Hickey gave evidence that there was in fact a fourth person in the vehicle called “Whacker” and it was “Whacker” and not the appellant who had assaulted him.
Grounds of Appeal
9. The sixteen grounds of appeal were set out as follows: i) The Learned Trial Judge erred in law and in fact in allowing the prosecution to introduce into evidence the statements in the book of Evidence of Ryan Hickey pursuant to the provisions of S.16 of the Criminal Justice Act 2006 in circumstances where there was not sufficient evidence before the Court of the reliability of the said statements and in particular having regard to the manner in which certain statements had been taken from the Appellant.
ii) The introduction into evidence of the statements in the Book of Evidence of Ryan Hickey was wrong in law and not in accordance with the strict requirements of S.16 of the Criminal Justice Act 2006.
iii) The Learned Trial Judge incorrectly charged and misdirected the jury in relation to the provisions of section 16 of the Criminal Justice Act 2006 and in particular how the jury should assess and deal with evidence of such a nature, particularly having regard to the circumstances of its admissions in the circumstances of this particular trial.
iv) The Learned Trial Judge erred in law and in fact in declaring the witness Ryan Hickey to be hostile and in allowing the prosecution to treat him as a hostile witness.
v) The trial was unfair and unsatisfactory by reason of the late addition by the prosecution to the Indictment of two further counts (Counts 1 and 2) that related to offences alleged to have occurred on dates different to the offence alleged in count 3 of the Indictment which was unfair and prejudicial to the conduct of the Appellant’s defence.
vi) The Learned Trial Judge erred in law and in fact in refusing an application for separate trials as between count 3 and counts 1 and 2 of the Indictment.
vii) The Learned Trial Judge erred in law and in fact in failing to give the identification warning in accordance with the People v Casey having been requisitioned by Counsel so to do.
viii) The Learned Trial Judge erred in fact and in law in allowing the prosecution introduce and rely upon the evidence of identification by a witness Ryan Hickey (that evidence being given pursuant to S.16 of the Criminal Justice Act 2006) where no identification parade had been held by An Garda Síochána in circumstances where the Appellant had become a suspect and the witness was amenable to view an identification parade. The failure to hold such a parade deprived the Appellant of trial in due course of law in breach of the Appellant’s Constitutional rights.
ix) The Learned Trial Judge failed to adequately warn the jury in relation to the difficulties with identification evidence and in particular, he failed to particularise the relationship of the problems of visual identification evidence to the particular evidence of same in this particular Prosecution case against the Appellant.
x) The trial was unsatisfactory in that the previous convictions of a witness, Niall Byrne, who gave evidence at the trial, were revealed to the jury in circumstances where such evidence of the witness’s previous convictions was not admissible in law and/or in circumstances where its admission was unfair and prejudicial to the Appellant.
xi) The cross-examination by Counsel for the Prosecution of the witness Niall Byrne was unfair having regard to matters put to the witness in relation to his previous convictions which rendered the trial unsatisfactory and the verdict unsafe.
xii) The Learned Trial Judge’s charge failed to properly deal with the manner in which the jury should deal with and approach the evidence of Niall Byrne.
xiii) The Trial was unsatisfactory and the conviction of the accused unsafe by reason of the failure of the Learned Trial Judge to put adequately or at all the defence case, being one where it had at all times been put by the defence that the Appellant was present but had been mistakenly identified by the witness.
xiv) The Learned Trial Judge erred in law and in fact in admitting into evidence, evidence of fibre lifts which had no probative value or that whatever probative value it had was far outweighed by its prejudicial and unfair effect.
xv) The finding of the jury that the Appellant was not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all the circumstances of the case, particularly in circumstances where the Learned Trial Judge allowed the admission of the Complainant’s evidence pursuant to S.16 of the Criminal Justice Act 2006.
xvi) The manner in which the evidence was adduced before the jury and the trial judge do not, in the circumstances, support a safe conviction. Consequently, the verdict of the jury was illogical and perverse and against the evidence and the weight of the evidence.
Submissions of Counsel for the AppellantPrevious Inconsistent Statements of Mr Hickey
10. At trial, Mr Hickey denied that the appellant had assaulted him, directly contradicting his previous statements: “ […] up until yesterday morning when I walked into this court, I believed it was Sean Farrell that cut me up […] And when I seen him, I thought that's not the man, I'm after giving the wrong bloody name. […] So would you rather I came in and lied to the Court and says "Yes, that's him" and he gets locked up for it, like. Am I not meant to be truthful here if anywhere?”
11. In the absence of the jury, counsel for the prosecution made an application pursuant to section 16 of the Criminal Justice Act 2006 to admit the previous statements. The learned trial judge ruled that counsel for the prosecution could put the three previous inconsistent statements to Mr Hickey in cross-examination before the jury, and that a copy of each of the three statements could be provided to the jury.
12. Whether or not a statement is reliable is an essential touchstone of admissibility. Counsel for the Appellant stresses that the first two statements were taken from Mr Hickey in hospital at a time when he was seriously injured. Mr Hickey had smoked a number of joints prior to the assault. Further, the statements were not properly recorded by the Gardaí. In evidence, Mr Hickey stated that he did not remember making the statements.
13. The third statement was taken some months after the assault and was recorded, however in evidence Mr Hickey stated that when he gave that statement, “I was stoned out of my head […] I was suicidal that day. I was only back from England and I’m dragged into a Garda station to give statements, you know what I mean. I was in shock.”
14. The learned trial judge in ruling in the statements failed to have sufficient regard to the evidence on oath of Mr Hickey, that he had misidentified the appellant as having attacked him. The previous statements did not meet the criterion of reliability as required by section 16 and should not have been admitted by the learned trial judge.
15. Further, it is submitted that the learned trial judge failed to give reasons as to the admissibility of the statements. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), McKechnie J was critical of the trial judge’s failure to give “somewhat more detailed or discursive” reasons as to why he admitted statements in that case. McKechnie J stated that the language of section 16 implies a discretion in the court of trial such that “the reception of such a statement does not automatically follow”. As such, it is submitted that a trial judge must give reasons as to the admissibility of statements under section 16. This was not adhered to in this case.
16. It is further submitted that it was wrong in law to allow the jurors to keep a copy of the three statements during their deliberations, and that the jury were not properly instructed as to how the provisions of section 16 should be applied by them. Heffernan & Ní Raifeartaigh inEvidence in Criminal Trials(Bloomsbury 2014) state:- “Further questions surround the manner in which the jury receives the previous statement. The statement, or the relevant parts therein, will have been read aloud in court during the examination of the witness, and referenced in the trial judge’s summing up. InR v Hulme, the Court of Appeal criticised a trial judge’s decision to allow the jury to take the statement with them when they retired to consider their verdict. As with any analogous written materials, such as a transcript of evidence of a video recording of an interview, there was an “undoubted risk that the jury would place disproportionate weight on the content of the document, as compared with the oral evidence”. A procedure whereby the jury are permitted to read the contents of the written statement in the jury box prior to retiring was defective for the said same reason. Even if exceptional circumstances arose where it was appropriate for the jury to read the statement or take it with them, the situation would call for “robust directions by the judge” over and above any general direction concerning evidence admitted under Section 119 [Section 119 being the equivalent to Section 16 Criminal Justice Act, 2006]”.
Judge’s Charge in Relation to Section 16 Application 17. The learned trial judge charged the jury in relation to the section 16 application in the following terms:“The law facilitates evidence to be admitted to a jury in this situation. Mr. Colgan describes it as unique but it is not so a unique occasion because it’s provided for by legislation specifically that was passed in the year 2006 and it was passed in law specifically designed to meet the needs of a case such as this. Back in the early 2000s, shortly before 2006, there was a notorious murder trial heard in the city of Limerick and there the accused on trial was faced with a series of witnesses, I think in all seven, if not eight, who came into the witness box having earlier made statements implicating the accused, went into the witness box and each one after the other said I don’t wish to give evidence., I’m not going to tell the jury anything. They were allowed stand down and after that had been gone through the judge had no option but to direct the acquittal of the accused of the charge of murder. The legislature, faced with that situation, then introduced S.16 of the Criminal Justice Act of 2006 specifically designed that in cases where a victim or a witness gives evidence or, sorry, makes a statement to Garda Siochana to initiate and assist them in the initiation of a criminal investigation, then comes to court and seeks to retract or vary what they said, allows the prosecution to prove in evidence the original statements […]
The rationale is that, as is evident from this case, that a victim such as Mr. Hickey within a short time of being very, very seriously injured and feeling aggrieved of all of that is likely to tell the Gardaí what actually happened and in this case he had repeated that account on three occasions. First he relates it in the backyard, then repeats it within an hour of midnight, repeats it again in the afternoon of the same day and then confirms it when they’re read to him in interview in September some weeks later and saying yes, they are correct, that’s accurate and answers questions consistent with it and the State say that this body of evidence, taken together, is reliable, you can act upon it. You can have confidence that that is where the truth is.
The defence make the very fair and obvious observation on all of that. Mr Hickey is either lying now or he was lying when he was making his statements, either way he is a person who is inconsistent. He is untruthful. And you might therefore pause before you act upon his account, his evidence, his statements, whichever. He is untruthful. There is no two ways of putting it. It is open to you to conclude nonetheless that he came into this court with one objective in mind and that was not to assist the prosecution but to ensure that Mr Farrell is not made answerable to what he says was the wrongs done to him originally and it is for you, ladies and gentlemen, to assess the evidence, the details as given by Detective Garda Jennings of the conversation in the yard, back yard, of the interviews that have been reduced to writing and you have, and of your observation of Mr Hickey as he was being interviewed on the third occasion, all of that’s available to you to assess and the State says that based upon that you can have confidence that that is where you’ll find the truth. The defence say otherwise. The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him.”
18. To say to the jury that the law was passed specifically designed to meet the needs of a case such as this was unfair and prejudicial to the appellant’s case. In referring to a murder case in Limerick, the learned trial judge imposed an atmosphere of intimidation on the case.
19. Evidence introduced under section 16 should only be allowed where a jury is fully appraised as to how to deal with the evidence given viva voce and the previous inconsistent statements. Crucially, having regard to an accused person’s presumption of innocence, the difference between unsworn written statements introduced pursuant to section 16 and evidence given on oath was not explained to the jury. InDirector of Public Prosecutions v. Murphy(Unreported, Supreme Court, McKechnie J, 18th January, 2013), it was stated that a judge’s charge where an application pursuant to section 16 has been acceded to should draw attention to the risks associated with admitting evidence pursuant to section 16. McKechnie J was critical of this not having been done in the trial court. Specifically, the following ought feature in a judges’ charge: the historical role of the hearsay rule and the reasons underlying it; the court’s preference for direct sworn evidence tested by existing safeguards; the difference between oral statements and witness statements. Further, the Supreme Court stated that the judge’s charge must be tailored to the particular case, and that a judge should point out if sworn evidence is inconsistent with a previous statement - “unless the jury is so fully informed, their critical role in this context will almost certainly be impaired and could easily be fatally jeopardised”.
20. Recently, inDirector of Public Prosecutions v. Jonathon Douglas(Unreported, Court of Appeal, Mahon J, 21st December, 2015) Mahon J described the manner in which a trial judge should charge a jury with regard to previous inconsistent statements. It is submitted that the learned trial judge in this case did not adequately inform the jury as was prescribed in Douglas to the difficulties associated with evidence introduced against an accused person under section 16. Undue weight was placed on the value of the unsworn statements over and above the evidence given on oath by the injured party.
Declaration of Mr Hickey as a Hostile Witness
21. The prosecution sought to have Mr Hickey declared a hostile witness such that he could be cross-examined by the prosecution as to his previous statements. It is submitted that such an application should not have been granted, that the cross-examination far exceeded what is permitted and that the significance of the evidence adduced under such cross-examination was never explained to the jury.
22. A witness should not be declared hostile merely because he is unfavourable or forgetful. Mr Hickey was not recalcitrant, he gave his evidence and he was clear that he now realised that he had misidentified the appellant. The subsequent cross-examination of Mr Hickey was the longest cross-examination of any witness in the trial. It is submitted that it was unfair and over-zealous.
23. Further, having been granted the application to declare Mr Hickey a hostile witness, counsel for the prosecution sought an application to rely on inadmissible hearsay evidence and evidence contrary to the rule against narrative as part of the hostility cross-examination. The learned trial judge allowed the prosecution to cross-examine Mr Hickey on what other witnesses stated that he had said to them, for example in relation to what Mr Hickey had said to his girlfriend and mother. On foot of the trial judge’s ruling, counsel for the prosecution adduced hearsay evidence from Garda Jennings and Sandra Hickey, Mr Hickey’s mother. Garda Jennings stated: “Yes, he said it was a person called Fat Farrell”. Sandra Hickey stated: “He was just getting weak at that stage and I was the one - I was going hysterical and I was asking him what happened to him, what happen - like, I was pressing him, what’s happen - what happened to you, what happened to you. He wouldn’t tell me anything. And then he told me that Fat Farreller person had attacked him again.” In closing, counsel for the Defence appears to ask the jury to ignore the hearsay evidence, however, it was unsatisfactory for the evidence to have been put to the jury in the first place.
24. The learned trial judge failed to deal with the status of the evidence given pursuant to the hostility cross-examination in his charge to the jury, and as to how the jury should have approached such evidence. He failed to explain that the purpose of hostility cross-examination is to allow a party to discredit their own witness by proving a previous inconsistent statement.
Unfairness in relation to the Indictment
25. The fifth and sixth grounds of appeal relate to the late addition of two counts to the indictment (of which the appellant was found not guilty by the jury) and the refusal of the application for a separate trial as between the section 4 count and the two other counts.
26. The appellant was arrested in relation to the section 4 charge alleged to have occurred on 18th June, 2013 at 6 Castle Park Estate, Tallaght. He was never questioned in relation to any previous incidents. The Book of Evidence served on the appellant only contained a section 4 charge. On the 27th April, 2015, two weeks before the trial commenced, the appellant became aware that he was facing two further charges, one of criminal damage and a section 3 assault charge. These charges were included on the indictment, albeit relating to a totally separate incident dated between the 10th and 12th June, 2013.
27. It is submitted that it was unfair and oppressive to include two further counts on the indictment. A count which is wholly different from and unrelated to the main matter to be tried should not be allowed to proceed at the same time. The addition of the two further counts may have indicated to the jury that the appellant was a person with a bad animus towards the injured party and that he was continuously involved in serious crime, making the section 4 assault more difficult to defend. Separate trials ought to have been granted in respect of the section 4 count and the two additional counts.
Identification
28. Grounds 7, 8 and 9 of the appeal relate to the failure of the judge to give a Casey warning when requisitioned to do so, the fact that evidence of identification was admitted where no identification parade had taken place, and the failure of the learned trial judge to warn the jury as to the difficulties associated with identification evidence.
29. It is submitted that this was a case where an identification parade should have taken place following the arrest and detention of the appellant. The question of mistaken identity was at the core of the appellant’s defence. The learned trial judge charged the jury as follows: “In this case the central issue is was it Mr. Farrell and was it Mr. Farrell on each occasion”. The learned trial judge failed to address the fact that the witness, Mr Hickey had claimed on oath that he had named the wrong person as his aggressor, and no warning was given in relation to the issue of identification and the difficulties associated with identification evidence. Counsel for the defence sought aCaseywarning from the learned trial judge, who stated: “No, there’s no issue of mistaken identity in this case whatsoever […] All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. Its whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don’t propose to give the direction in that respect.”
30. The optimum method of pre-trial identification is an identification parade, because of the dangers associated with identification evidence. The desirability of holding identification parades was stressed inDirector of Public Prosecutions v. Lee(Unreported, Court of Criminal Appeal, Murray J, 20th July, 2004). Murray J. stated:“…because of certain inherent dangers in relying exclusively or predominantly on evidence of visual identification there is an onus on the investigating Gardaí and the prosecution to ensure that evidence of visual identification is obtained in the most reasonably reliable form which, in the absence of reasonable cause, should be in the form of a formal identification.”
31. A trial judge must convey the dangers of acting on identification evidence to a jury. Further, a trial judge ought carefully examine the identification evidence with a view to pointing out to the jury any matters which might have affected its reliability.
Unfair Treatment of a Witness called by the Defence
32. In the course of his charge to the jury, the learned trial judge stated the following about Mr Byrne, the friend of the injured party present at the time of the assault who had stated that a man named “Whacker” had attacked Mr Hickey, and not the appellant:“The accused man himself in interview has said he is innocent and didn’t do it and Mr Niall Byrne has come forward to support him. He was in the car and he says it wasn’t the accused. Now, Mr Byrne isn’t someone who might impress you much and the State challenge him on the basis that he is a man of dishonesty. He has committed crime in the past. He has gone to prison for it and he is someone who has no regard for authority and the police in particular from the evidence you’ve heard from the last witness called to comment on his status.”
33. It is submitted that revealing Mr Byrne’s previous convictions was unfair and prejudicial to the appellant.
34. Further, it is submitted that the cross-examination of Mr Byrne by the prosecution as to his previous convictions went beyond what is fair or permissible. The learned trial judge failed to address the manner in which the jury should approach the evidence of Mr Byrne.
Defence Case
35. It is submitted that the defence case, namely that the appellant was present at the assault but was mistakenly identified by the injured party as having committed the assault was never put to the jury by the learned trial judge in his charge. The learned trial judge failed to instruct the jury that the main prosecution witness, Mr Hickey claimed on oath that he had misidentified the appellant and another person had assaulted him.
Forensic Evidence
36. Evidence was given in relation to forensic investigations carried out after the assault. A chemical test indicated the presence of blood on the tongue area of Mr Farrell’s left runner, but that the sample was insufficient such as to generate a DNA profile. It is submitted that the prejudicial effect of this evidence outweighed its probative value. Evidence was also given in relation to various items, including a Stanley knife found in the appellant’s home. No blood was found on any of these items. It is again submitted that the prejudicial effect of the evidence outweighed its probative value and ought not have been admitted.
37. Dr Bridget Fleming gave evidence that she had forensically tested a blue hoodie that the appellant had been wearing when arrested. The purpose of this evidence was to implicate the appellant as being the person sitting in the back seat of the vehicle where the assault took place. She found 18 fibres that matched the fibres of the appellant’s hoodie. Dr Fleming stated that the fibre findings provided moderate support for the view that the hoodie was in contact with the rear driver’s seat at the time of the incident. It is submitted that the level of support offered by the forensic expert was not sufficient such that it should have been admitted into evidence.
Perverse Verdict
38. It is submitted that the finding of the jury of not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all of the circumstances of the case.
39. Despite the injured party’s explanation that he had made a mistake in his identification, the appellant now stands convicted of a crime which he has always denied, in circumstances where the injured party has sworn on oath that it was not the appellant that assaulted him. It is submitted that this is a perverse verdict and one that should be remedied by this Court.
Submissions of the Respondent
40. The majority of the submissions made by the appellant (as drafted by his newly appointed legal team) were not raised in the trial court and therefore are not appropriate grounds of appeal, as perDirector of Public Prosecutions v. Cronin[2004] 4 I.R. 329. As is well settled, the appellant was bound to requisition the learned trial judge following the charge to the jury if the appellant was unhappy with the manner in which the case had been left to the jury, as was stated inDirector of Public Prosecutions v. Finnegan and Morrison[2011] IECCA 47.
41. Specifically, the appellant did not object to section 16 being utilized in the present case. In opposing the application to have Mr Hickey declared a hostile witness, counsel for the appellant stated: “I'd respectfully submit that in this particular instance, section 16 [of the Criminal Justice Act 2006] would suffice, were the Court to go that way.” In light of the quotations set out it is difficult to see how the appellant can make the arguments as set out in the grounds of appeal relating to the admission of the previous statements under section 16.
42. Garda Jennings gave evidence outlining in detail how each statement was obtained from Mr Hickey who was then extensively cross examined as to the reliability of the statements taken. Counsel for the prosecution made clear the procedural steps that would be adopted, including providing the jury with copies of the previous statements. Counsel for the appellant made no objection at any stage.
43. The learned trial judge properly instructed the jury as to the provisions of section 16 and how to apply them contrary to the submissions of the appellant: “ […] it is a matter for you, the jury, to assess that evidence and in doing so, in estimating the weight the act says to be attached,if any, to the statements regard shall be had to all the circumstances on which any inference can reasonably be drawn as to the accuracy or otherwise. So, you have to have regard to all of the evidence and how these statements were obtained andwhether or not ultimately you can place any weight upon them, act upon them in other words.” [Emphasis added by Counsel for the Respondent].
44. No requisition was sought regarding this direction to the jury and the appellant now seeks on appeal to revise the position held by him at trial.
45. Counsel for the appellant submits that the learned trial judge erred in law and in fact in allowing the prosecution to cross-examine Mr Hickey as a hostile witness. The learned trial judge gave a comprehensive ruling granting the prosecution application to declare Mr Hickey a hostile witness, having listened to the evidence heard and the submissions of both counsel: “The second leg of the application then is that Mr Hickey be considered a hostile witness, and the authorities and in particular, the judgment of Carney says that hostile means more than being merely adverse to the hopes or prospects of the prosecution's case, and clearly that is the case here. I have fairly concluded that Mr Hickey's is about the object of not giving evidence in pursuit of his original statements, and not to be obliged to say anything to implicate the accused man Mr Farrell in the alleged wrongdoing against him. He is, to my mind, hostile to the process. He's certainly not truthful in my mind. He is intent, as I say, in the way I've indicated and in pursuit of that is prepared to tell untold lies about the events […] For these reasons, Mr Hickey can be treated by the prosecution as a hostile witness and be, therefore, cross-questioned, against the normal rule, on his evidence, subject to the limitations that it would appear Mr Staines is well mindful of.”
46. It is clear that the learned trial judge carefully evaluated all the relevant factors in arriving at his determination. Counsel for the appellant now takes issue with the manner in which counsel for the respondent conducted his cross examination of Mr. Hickey, however no objection was raised before the trial court to the manner in which the examination proceeded.
47. It is further argued by counsel for the appellant that prosecution counsel improperly introduced hearsay evidence in the course of his cross examination of Mr Hickey. Prosecution counsel made an application in the absence of the jury specifically to ensure that his intended method of cross-examination would not offend against the rule against narrative (rather than hearsay which it is submitted had no application to the present circumstances). He stated: “[…] the second aspect of the cross-examination, effectively, is to seek to have the witness recant and accept that what he originally said is the truth. And I say that, by putting those statements to him, that at the time he said x, y and z to various people, that is consistent with the purpose that I'm seeking to advance, which is to, effectively, get him to recant and accept that what he said in his statements - that the jury will have - is the truth and what he's now saying to the jury is untruthful”.
48. This was accepted by counsel for the appellant who stated “there will be certain issues that I will be raising with the witnesses in respect of what was said, soI don't see any difficulty at this stage in respect of the matterso”. [Emphasis added by counsel for the respondent]. The trial judge then stated:“All right, well then the order in which you present your evidence is a matter for you, I don't need to rule on it, and I'm satisfied, having regard to the submissions you've made, that you are entitled to lead the evidence and put to Mr Hickey what it is he is alleged to have said to others in respect of who was his assailant”.
49. In light of the above, it is respectfully submitted that no error in law arose in respect of the manner in which the hostile witness application was dealt with.
50. With regard to the joinder of counts 1 and 2 to the indictment, both counsel made detailed submissions and the jurisprudence on the subject was fully opened to the court. The learned trial judge ruled as follows: “No substance has been put to the unfairness in all of that other than clearly they have come very late in the date, but we're now at the 13th of May. The charges were laid and the accused knew as from the 27th of April of this year that he was being presented with a trial on these facts as well based upon counts 1 and 2. No application for an adjournment has been made.”
51. In considering counsel for the appellant’s application for a separate trial as between count 3 and counts 1 and 2, the learned trial judge ruled as follows:“It's clear, and the State submits, that there is a factual matrix here; and it would seem to me that there is a close relationship and connection between the events of some eight days, eight to six days before the events between counts 1 and 2 and count 3. For that reason, therefore, I would not be disposed to order a separate trial…”
52. The learned trial judge did not err in law or fact in refusing the appellant’s application. He considered the submissions of both counsel in conjunction with the legal authority opened to him before delivering an appropriate ruling.
53. It is conceded that counsel for the appellant raised a requisition in respect of “identification evidence, whether identification or recognition” with the learned trial judge. The following merits quotation: “MR COLGAN: Just one matter, Judge, that kind of strikes me
JUDGE: Yes.
MR COLGAN: in respect of the identification evidence, whether identification or recognition, whether the Court should give a Casey No. 2 warning in respect of it where it's proved over time
JUDGE: No, there's no issue of mistaken identity in this case whatsoever.
MR COLGAN: Well, there is a case in respect
JUDGE: In my view there isn't and I don't propose to give any direction to the jury
MR COLGAN: Insofar as that Mr Hickey had to concede that he didn't know Mr Farrell that well, that he was out of the jurisdiction and that he had returned and that he wasn't familiar with him.
JUDGE: All right. The defence has conceded in this case that Mr Farrell was present in the motorcar. The issue is not one of whether he could identify him or not or was mistaken in his identity. It's whether he did it or not. That is the issue central to this trial. It is not a case that requires any Casey warning and I don't propose to give the jury any direction in that respect .”
54. The learned trial judge later noted in ruling that Mr Hickey could be treated as a hostile witness that the victim and the appellant were familiar with one another:“In his statements he admits to knowing Mr Farrell well, it's suggested over a period of seven years or thereabouts he knows of him by his name, his address, his girlfriend, he knows of him by being the friend of an associate, and yet it's only when he arrives into the courtroom yesterday that he realises that, in fact, for the first time, it isn't the man. He tells untruths in respect of the presence of the fourth person or not in the motorcar, and whether or not he knew a person called Whacker, whom he now says in fact is the name of the man who assaulted him on the occasion.”
55. It is submitted that the possibility of mistaken identification or recognition applied to the facts of the present case is an entirely artificial construct. It cannot be now suggested that an identification parade should have been conducted where the prosecuting authorities were dealing with an allegation from Mr Hickey that he had been attacked by the appellant, a person well known to him.
56. In relation to the grounds of appeal concerning the cross examination of Mr Byrne, it is submitted that the prosecution’s cross examination of Mr Byrne focused on his credibility as a witness, his reluctance to deal with the Gardaí, and the suspicious similarities of the account offered by him to the Gardaí and the evidence given by Mr Hickey at trial. No objection was raised as to this issue at trial and the Appellant now seeks on appeal to revise the position held by him at trial.
57. No objection was raised in relation to the defence case not being adequately put to the jury at trial, and again, the appellant seeks to revise on appeal the position held by him at trial.
58. Counsel for the defence did not raise any objection based on the potential prejudicial effect of the evidence of the fibre lifts being admitted at trial. In any event, the evidence was highly probative as it amounted to circumstantial evidence from which the jury could infer that the appellant was in the car where the assault occurred and more specifically was seated behind the appellant during the assault. Further, the evidence was probative as the appellant baldly denied committing the offence in interview but gave no further details. The appellant did not admit to being present in the vehicle until late in the trial.
59. It is submitted that the finding of not guilty on counts 1 and 2 but guilty on count 3 is not perverse for the following reasons. The only evidence of the alleged assault and criminal damage contained on counts one and two on the indictment was the witness statements given by Mr Hickey. There was no contemporaneous complaint to the Gardaí nor was there any corroborating forensic evidence to support the witness statements. By contrast, there was a body of evidence to support the allegations made in respect of the slashing incident, including: Mr. Hickey’s statements; Mr Hickey’s contemporaneous complaints; Mr Hickey’s oral testimony and the inconsistencies therein; the evidence of Mr Byrne; the evidence of Ms Sandra Hickey; the appellant’s comments to Gardaí in interview; the fibre lifts taken from the vehicle where the assault took place; the medical evidence and photographs outlining the injuries sustained by Mr. Hickey.
60. It is respectfully submitted that the weight of evidence relating to the two separate incidents is incomparable and that the findings of the jury were objectively reasonable verdicts in the circumstances of the present case.
Supplemental Submissions of the Appellant
61. Counsel for the Respondent submits that the appellant should be precluded from raising most of the grounds of appeal because those issues were not raised at trial by his then legal team, relying upon the doctrine enunciated inCronin. It is submitted that there is no coherent basis on which the Appellant’s then legal team could have failed to raise the various issues now raised on appeal. There is a substantial basis for arguing that this failure was due to oversight on their part such as to create a serious risk that the appellant’s trial was not in due course of law.
62. It is submitted that it is not in the interests of justice that the appellant is precluded from making his substantive arguments as to the unfairness of his conviction by reason of theCronindecision. Counsel for the appellant therefore seeks to add an additional ground of appeal. The first matter to be considered by the Court is this motion to add a new ground, and the Court will then turn to the substantive issues on appeal.
Judgment of the Court on the appellant’s motion to add an additional ground of appeal
63. By a Notice of Motion dated the 15th of May 2017 the applicant ( the appellant in the substantive appeal, and hereinafter “the appellant”) seeks the leave of this Court to amend his Notice of Appeal by the addition of the following further ground of appeal: “[22]. The trial of the appellant was unsatisfactory and his conviction unsafe by reason of the failure of his then legal representation to properly protect his interests prior to and during the course of his trial.”
64. This amounts to a claim of inept, ineffectual and indeed incompetent legal representation of the appellant at his trial. Moreover the claim is further particularised in the Notice of Motion as follows:i) It is submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the admission as evidence of witness statements made prior to trial by the victim of the assault causing serious harm with which the appellant was charged, as sought by prosecution pursuant to the provisions of section 16 of the Criminal Justice Act 2006, (the Act of 2006) constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. The said evidence was the core evidence in the case against the appellant in the absence of which no jury, properly instructed, could have convicted the appellant. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
ii) It is further submitted in the circumstances of the case that the failure of the appellant’s legal representatives to object to the giving to the jury of copies of the said witness statements after they had been admitted in evidence constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to this procedure and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
iii) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the omission by the prosecution, when cross-examining the victim of the assault in the voir dire as to the admissibility of his witness statements, to put to him expressly that what he had said in the said statements was true and that the evidence he was now giving in Court was untrue. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
iv) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object, adequately or at all, to the prosecution application that the victim of the assault be treated as a hostile witness constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
v) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to requisition the trial judge on that part of his charge to the jury in respect of section 16 of the Act of 2006 as dealt with the circumstances in which the said statute was enacted and which referred to a situation that has arisen in Limerick, constituted an error or oversight of substance on their part capable, in conjunction with their other errors or oversight, of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not making the said requisition and the appellants then legal representation has not, despite request, tendered any explanation for their failure to do so.
vi) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of hearsay evidence given by Saundra Hickey, Audrey Cunningham and, in part, Garda David Jennings, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
vii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of the forensic evidence given by Sarah Fleming and Bridget Fleming, in respect of blood on the appellant's runners, knives found in the appellant's house, blood staining and blood swabs, and fibre lifts taken from the locus of the crime, which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
viii) It is submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the admission of evidence in respect of clothing found in a washing machine in the appellant's house which evidence was of no probative value or in respect of which the probative value were significantly outweighed by its prejudicial effect, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the admissibility of this evidence and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
ix) It is further submitted in the circumstances of the case that the failure of the appellants legal representatives to object to the manner of the cross examination, by the prosecution, of Niall Byrne, a witness for the defence and, in particular, the immediate putting to him at the commencement of the cross examination of his previous convictions constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in not objecting to the procedure thus adopted by the prosecution and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
x) It is submitted in the circumstances of the case that the concession by the appellants legal representatives, pursuant to the provisions of section 22 of the Criminal Justice Act, 1984, that the appellant was present in the motor vehicle in which the assault occurred at the time the assault occurred constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in making this concession.
xi) It is submitted in the circumstances of the case that the various omissions and failures of the appellants legal representatives, taken as a whole, constituted an error or oversight of substance on their part capable of grounding an apprehension that a real injustice has occurred. There was no apparent element of tactical strategy in the various matters constituting the said omissions and failures and the appellants then legal representation has not, despite request, tendered any explanation for their failure to so object.
65. The motion is grounded upon the affidavit of Siúna Bartels, Solicitor, sworn on the 15th of May 2017, and a subsequent affidavit sworn by her on the 22nd of March 2018, the contents of which this Court has carefully considered together with relevant exhibits. Ms Bartel’s exhibits correspondence with the appellant’s previous solicitor, in which, on the advice of counsel engaged for the purposes of the appeal, she posed a number of questions concerning the strategies adopted by the original legal team at trial.
66. In a letter dated the 5th of January 2017, written to the appellant’s former solicitors Ms Bartels stated, inter alia: “In particular, we would ask you to comment upon the following matters which appear to us to be significant:
1. For what reason was no objection taken to the statements of Ryan Hickey being admitted pursuant to S.16 of the Criminal Justice Act 2006? In particular, was there a reason why objection was not taken to the voluntariness of the statements, particularly the first two statements, given the onus of proof and where Mr. Hickey's evidence was that he had no recollection of making those statements or of their surrounding circumstances. In relation to the application to have the statements admitted, why was no submission made that Ryan Hickey was now adamant under oath that he had misidentified the accused as his assailant and that therefore, the content of the statements did not refer to the accused.
2. For what reason was objection not taken to copies of the statements that were admitted under section 16 being given to each of the jurors? The jurors had the statements at all times following their admission and all through their deliberations.
3. Was the third statement by Ryan Hickey served on the defence by way of additional evidence? It does not appear in the Book of Evidence and does not appear to have been served by way of Notice of additional evidence.
4. With respect to the prosecution's cross examination of Ryan Hickey in thevoir dire, why was objection not taken to the fact that it was never expressly put to him by the prosecution that what he had said in the statements to the Gardai was the truth and that he was not telling the truth in Court.
5. Why, apart from seeking to have the issue deferred, was no objection taken to the application by the prosecution to have Ryan Hickey treated as a hostile witness.
6. Why was no objection made during the prosecution cross-examination of the witness which went well beyond what is normally allowed under such a process.
7. Why was no requisition made on the manner in which the Judge McCartan charged the jury on the S.16 procedure. Further, and on his direction that"it (the law contained in S.16) was passed in law specifically designed to meet the needs of a case such as this"and his account of the situation in Limerick that appears to have given rise to the necessity for this particular legislation? You will note that other flaws in the Judge's charge on the S.16 procedure are raised in the Applicant's submissions - however, no requisitions were made in relation to this part of the charge. Why were any these matters not the subject of requisitions?
8. At transcript Day 3, pages 1 - 4, why was no objection taken to the prosecution application for the admission of the hearsay evidence of Saundra Hickey, Audrey Cunningham and Garda David Jennings? The prosecution refered, incorrectly, to this evidence as narrative evidence. Why was no objection made to this evidence being adduced before the jury during the cross-examination of Ryan Hickey and in the evidence in chief of each of these witnesses?
9. Why was no objection taken to the admission of the evidence of:-
(i) Blood on the tongue area of the left runner of the Applicant taken from him at the Garda Station. [Transcript Day 4, page 2]
(ii) A Stanley knife, two blades, a scalpel knife and another knife. [Transcript Day 4, page 3]
(iii) Blood staining (the blood of the Applicant) found on a broken mobile phone face found at the Applicant's residence. [Transcript Day 4, page 3]
(iv) Evidence of blood swabs. [Transcript Day 4, page 3]
10. Why was no objection taken to the evidence of fibre lifts as adduced from the witness Bridget Fleming, which appears not to have any probative value having regard to the standard of proof required in a criminal trial? [Transcript Day 4, page 7.
11. Why was no objection taken to the admissibility of the evidence in respect of the clothing in the washing machine? It appears that the prosecution case was that at least some of the clothes the Applicant was wearing when arrested were the clothes he was wearing in the car i.e. not in the washing machine. In addition there does not appear to be any evidence that the clothing in the washing machine belonged to the Applicant.
12. Why was no requisition made in relation to the way the Learned Trial Judge charged the jury in relation to the wet clothes in the washing machine, and that the washed clothes could account for the fact that there was no forensic evidence linking the Applicant with the assault?
13. Why was no objection taken to the way Niall Byrne was cross-examined by Counsel for the prosecution and, in particular, the immediate putting to him of his previous convictions and the calling of rebuttal evidence to discredit his testimony?
14. In closing the case, in circumstances where Ryan Hickey had sworn on oath that he had misidentified Sean Farrell as his assailant, why were the jury asked to deliberate upon the following issue?:- "What weight, if any, do you attach to them (the statements introduced pursuant to S.16) because either Mr Hickey was lying then back in 2013 when he said it was Sean Farrell or he told the truth back then or he is lying now or he is telling the truth now in respect of what he said about Sean Farrell because no one else assists in respect of the matter."”
67. These queries were replied to by the solicitor concerned in a letter dated the 18th of December 2017. It states,inter alia:“We rely, in part, on this letter as demonstrating that the general tone of your assertion of a lack of strategic awareness in the approach to Mr. Farrell's defence is misconceived.
In or around this time this firm was also instructed in relation to a personal injuries action, which representation also terminated on your appointment. We further made several appearances in Dublin and Naas District Court in relation to road traffic matters. We also represented Mr. Farrell's partner in respect of a number of Road Traffic matters in the District Court. On all such occasions Mr. Farrell discussed his then pending trial with Solicitor and/ or Counsel.
On review of our records we can confirm that consultations were held with Mr. Farrell on the following dates:
lst November 2013 - Circuit Criminal Court 1st Mention
6th January 2016 2014 - High Court Bail Application
9th January 2014 - Arraignment
13th January 2014 - Bail Application
16th January 2014 - Further Arraignment Date
16th May 2014 - Consultation with Counsel
23rd May 2014 - Pre-Trial
6th June 2014- Consultation with Counsel
3 rd July 2014 - Consultation with Counsel
7th July 2014 - Initial trial date
8tb January 2015 - District Court matter
12th February 2015 - District Court Matter
13th March 2015 - Further pre-trial consultation with Counsel
16th April 2015 - District Court Matter
27th April 2015-Trial, CCJ
In addition to the foregoing dates, there were extensive telephone discussions with Mr. Farrell.
Mr Farrell's trial eventually came on for hearing on the 27th April 2015. In circumstances where the prosecution was insistent that the matter needed to be prosecuted while witness availability was assured, the matter rolled over on a daily basis from the 27th April to the 13th May when the trial in fact commenced. On each of these 13 days on which the matter was mentioned before the Court, Mr. Farrell met with both Junior and Senior Counsel.
The trial proceeded until the 19th May and obviously Mr. Farrell discussed matters with both Counsel throughout.
In relation to the "Book of Evidence", additional evidence and disclosure in the case, we wish to put on the record that it was agreed with Mr. Farrell from the very earliest point, that evidence of clothing found in the washing machine of his home would be relied on in his defence as same disclosed absolutely no forensic evidence linking Mr. Farrell to the crime. Mr. Farrell was advised that this evidence demonstrated not merely an absence of evidence but was evidence of absence. It was explained to him that positive evidence of this sort was of assistance to his defence. Mr. Farrell maintained this strategy throughout the period in advance of his trial and throughout his trial. As is quite obvious from the foregoing, there was a significant number of opportunities to express concern. On the contrary, Mr. Farrell was quite satisfied with this proposed course.
In response to the matters raised in your letter of the 5th January 2017 the following arises:
1. There was no indication that the statements were involuntary. Your assertion of Mr. Hickey's lack of recollection is irrelevant in light of the fact that the statements were made in the usual format (complying with the requirements of the Criminal Procedure Act (as amended)) and Mr. Hickey did not deny making the statement. While you complain that no objection was made you fail to identify any stateable basis, in fact or law, that would support a submission that the statements were involuntary.
2. This point is either mis-stated or misconceived. S.16 provides that the statement itself is evidence. This is the evidence that is to be given to the jurors. It can be contrasted with the reading of statements under section 21. Again, you make a specious comment by way of criticism but no criticism in fact arises. As stated, your comments are misconceived or your understanding of the law is flawed.
3. In the absence of our files we cannot definitively answer this query. It may be the case that same was served during the course of the 2-week mention period that preceded the commencement of the trial and so was handed directly to Counsel.
4. We have discussed this matter in detail with junior counsel, it appears you complain that we failed to object that a question was not asked by the Prosecution. You have not identified any legal basis for such an objection to be made in the course of a cross-examination. Counsel advises that objections are made to answers to questions, not a failure to ask a question.
5. It was agreed with and understood by Mr. Farrell that it was inevitable that Mr. Hickey's statements would be admitted under s.16. It was further agreed that the best basis on which a challenge might be brought to a ruling by the Trial Judge was in the event that he did not await Mr. Hickey's evidence before the Jury, in the face of the content of his statements having been admitted before treating him as hostile. In furtherance of this strategy it was decided to invite the Court to defer the question of declaring Mr. Hiclcey hostile until his evidence was given after the statements had been admitted.
6. It is impossible to answer this query as it is completely vague and discloses no identifiable basis of complaint.
7. You have not identified any issue you take with the manner of Judge McCartan's charge on the s.16 procedure. In relation to your "further" complaint that no requisition was made in respect of references to "a case such as this" and "the situation in Limerick", we can only assume that you infer that these remarks were prejudicial. We would agree if that is the case. It was decided it would be more prejudicial still, to further draw the jury's attention to the fact that s.16 had been invoked and that Mr. Hickey had been treated as hostile as Judge McCartan was clearly unimpressed with these features of the trial and further adverse prejudicial comments may have been made, whether legitimate or otherwise.
8. First, there was no reason to believe that Ms. Hickey, Ms. Cunningham or Gda. Jennings would give evidence other than in accordance with their statements. Mr. Hickey was a witness in the case. What these witnesses testify as to what Mr. Hickey said to them, where Mr. Hickey is a witness in the case cannot be said to be hearsay. Insofar as your complaint suggests that [prosecuting counsel’s] recital of that evidence is hearsay we refer you to the absence of any reason to believe those statements would be contradicted. You certainly have not identified any such contradiction nor was any contradiction in fact made, in evidence before the Jury. Further, as [defence Senior Counsel] tangentially refers to, at Day 3, page 4 line 10, there were matters to be put in cross-examination and testing those witnesses at that point in the absence of any basis for same would have equated that test with a rehearsal. It would have rendered the cross-examination before the jury as a mere repeat. In short, the element of surprise in respect of 3 crucial prosecution witnesses would have been lost. This 8th point raised by you yet again makes a vague complaint without any identifiable evidential or substantive legal reason for same.
9. The logic in not making objections to this evidence is identical to that concerning forensic analysis of the clothes and washing machine - these exhibits were positive evidence of absence of corroboration for the prosecution case. These matters were agreed as a strategy with Mr. Farrell since 2013.
10. The same response as to point 9 arises
11. The same response as to point 9 arises
12. Yet again in order to answer your complaint we must make sense of it by inferring that the basis for it is that the comments were prejudicial, the concern expressed earlier that affording the Trial Judge a further opportunity to address the jury may have further aggravated Mr. Farrell’s position before the jury arises by way of reply.
13. And yet again, you fail to identify why it was impermissible that Mr. Byrne's previous convictions be put tohim. Are we correct in thinking that you take further objection on the basis that they were immediately put as opposed to put at some later stage? It ought to be unnecessary to point out yet seems warranted by your question, Mr. Byrne was not an accused person before the Court. He enjoys no protection against disclosure of such convictions by reason of the Woolmington principle. There was no basis to make any objection to his cross-examination. We must continue to point out that you have not identified any basis why any objection ought to have been made.
14. They were asked to consider what weight was to be attached to his previous statements for the reason identified by you, he had given evidence on oath that Mr. Farrell had been misidentified.”
The Law68. There are relatively few cases in the jurisprudence of the Irish appellate courts dealing with alleged ineffectual representation by a party’s legal team, or “ineffective assistance in litigation” as it is characterised in the case law of the Supreme Court of the United States of America. The leading Irish case isThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411, which we will review in some detail momentarily. Other cases of potential relevance to a greater or lesser extentare The People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003);The People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17;The People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 andThe People (Director of Public Prosecutions v O’Regan[2006] IECCA 54 (CCA) & [2008] ILRM 247 (SC).
69. Before proceeding to review theMcDonaghcase and the other Irish cases it is appropriate to refer to the approaches which have been taken in some other common law jurisdictions.
70. In the United States of America the seminal case is that of Strickland v Washington 466 US 668. InStricklandthe US Supreme Court held (inter alia) that: 1. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (696-698)
2. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction, or setting aside of a death sentence, requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (687-696).
(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. (687-691).
(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. (691-696).
3. A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.
71. In the United Kingdom, particularly in England and Wales, differing positions have been taken at different times and the jurisprudence in this area has been somewhat in flux. Amongst the most significant cases in this developing jurisprudence are those ofR v Ensor[1989] 1 WLR 497; R v Clinton [1993] 1 WLR 1181;R v Nangle[2001] Crim L.R. 506 and R v Thrakar [2001] EWCA 1096. In Scotland the position is as set out inAnderson v HM AdvocateHCJ (1996 JC 29).
72. In theEnsorcase the Court of Appeal (Criminal Division), following the approach commended in the earlier cases ofR. v Gautam, The Times, 4 March 1987, and R v Irwin [1987] 1 WLR 902, stated that a conviction should not be set aside on the ground that a decision or action by counsel in the conduct of the trial later appeared to be mistaken or unwise. This was so even if the decision or action was contrary to the accused’s wishes. There was an exception in the case of flagrantly incompetent advocacy on the part of the accused’s counsel.
73. In the subsequentClintoncase the Court of Appeal (Criminal Division) signalled something of a departure from its earlier test requiring the establishment of “flagrant incompetence” before an appellate court would interfere, holding that, although the cases where the conduct of counsel could afford a basis for appeal were wholly exceptional, where a decision was taken either in defiance of, or without proper instructions or contrary to the promptings of reason and good sense, it was open to an appellate court to set aside the verdict on the grounds that it was unsafe and unsatisfactory. The court commented that “[i]t is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict”.
74. InNangleandThrakarthe Court of Appeal (Criminal Division) reiterated that flagrant incompetence might not now be the appropriate measure, in the light of the Human Rights Act 1988 and having regard to Article 6 ECHR. InThrakar, it was said that “… the test is whether, in all the circumstances, the conviction is safe. Nonetheless, if such failures have prevented an appellant from having a fair trial, that will normally mean that the conviction is unsafe and should be quashed.”
75. In the Scottish case ofAndersoncase the High Court of Justiciary formulated a number of principles which may be summarised as follows: i) Although it cannot be asserted as an absolute rule that the conduct of the defence by an accused’s counsel or solicitor will not be a ground of appeal, the circumstances in which this will be permitted must be defined narrowly;
ii) The conduct complained of can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. This, in turn, can only be said to have occurred where the conduct of the case was such that the accused’s defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence he wished to be presented, or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him;
iii) The principle of finality demands that the right to a fair trial should not be viewed as involving a right to a re-trial simply because things at trial might have been done differently. It that were so, there would be no end to the process of putting an accused on trial for his offence;
iv) While an accused has the right to have his defence presented to the court, his counsel or solicitor is not subject to direction by him as to how that defence is presented. In other words, although the representative must act according to his instructions as to what the defence is, the way in which he conducts the defence within those instructions is a matter for him. As a general rule, an accused is bound by the way in which the defence is conducted on his behalf.
76. Turning then to the Irish authorities, the case ofThe People (Director of Public Prosecutions) v McDonagh[2001] 3 I.R. 411 arose out of a violent confrontation between members of two families, in the course of which the applicant was alleged to have struck the deceased with a billhook causing his death. The applicant sought leave to appeal against his conviction on the grounds,inter alia, that the preparation for and/or the conduct of the applicant's defence by his legal advisors was seriously inadequate and thereby deprived the applicant of his constitutional right to a trial in due course of law as guaranteed by Article 38.1 of the Constitution. In this regard, the applicant relied upon the failure of his legal advisors to interview certain potential witnesses, the advice given to the applicant not to give evidence in his own defence and the failure of his legal team to serve an alibi notice pursuant to s. 20(1) of the Criminal Justice Act, 1984. It was further submitted that the defence was seriously prejudiced by the fact that the senior counsel originally retained by the applicant handed over the defence brief at such a late stage as to deprive the applicant of an opportunity of retaining a replacement of his choice. Further, the senior counsel to whom the case was handed over did not have an opportunity to meet with the applicant or discuss the case with the other members of the defence team until the morning of the trial.
77. The Court of Criminal Appeal dismissed the application. Keane C.J, giving judgment for the court, stated: “It has already been noted that, when delivering the judgment of the court on the hearing of the second interlocutory application in this case, Murray J. said that the conduct of a trial, including steps taken preliminary to the trial by an accused's legal advisers could, in exceptional circumstances, give rise to a ground of appeal. That view is clearly consistent with the requirement of Article 38.1 of the Constitution that no person is to be tried on any criminal charge "save in due course of law". A criminal trial, in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused's interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in "due course of law". That would apply as much to the steps taken by the accused's legal advisers prior to the trial as it would to the conduct at the trial itself.
That is not to say, however, that what might properly be regarded as an error by the accused's legal advisers is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial. As was pointed out by Rougier J., giving the judgment of the English Court of Appeal, inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188:-
‘It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and the verdict …’
It was also said, in that case, that the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be "extremely rare". In particular, where counsel has fully discussed the case with his or her client, and has made careful and considered decisions as to how best the defence should be conducted in his or her client's interests, an appellate court should not intervene simply because it appears that counsel might have been mistaken in the view he took. This, it was said inR. v. Clinton[1993] 1 W.L.R. 1181 at p. 1188, applied particularly to the decision as to whether or not to call the defendant, which is one of the issues that has arisen in this case. It was however held that, exceptionally, where the decision in question was taken either in defiance of or without proper instructions or when all the ‘promptings of reason and good sense’ pointed the other way, it might be open to an appellate court to set aside the verdict.
The exceptional nature of the circumstances in which an appellate court should intervene on such a ground were also emphasised by Lord Lane C.J. giving the judgment of the same court inR. v. Wellings(Unreported, Court of Criminal Appeal, 20th December, 1991), also cited inR. v. Clinton[1993] 1 W.L.R. 1181 where he said at p. 1187:-
‘The fact that counsel may appear to have made at the trial a mistaken decision, or has indeed made a decision which in retrospect is shown to have been mistaken, is seldom a proper ground of appeal. Generally speaking, it is only when counsel's conduct of the case can be described as flagrantly incompetent advocacy that this court will be minded to intervene.’
Subject to the caveat that the last sentence may arguably set the threshold for intervention at too high a level, the court is satisfied that the observations quoted set out, in necessarily general terms, the limited circumstances in which an appellate court may properly set aside the verdict of the jury where the grounds relied on consist essentially of criticisms of the conduct by the accused's legal advisers of the defence of the trial or steps taken preparatory to the trial.”
78. The case ofThe People (Director of Public Prosecutions) v Flynn(Unreported, Court of Criminal Appeal, July 30, 2003) was a case in which the central complaint was not alleged ineptitude or incompetence, but rather an alleged failure to follow the client’s instructions, a claim ultimately not upheld by the Court of Criminal Appeal. Fennelly J, giving the judgment of the court, which applied the approach commended inMcDonagh, stated in addition that:“Subject to the general obligation to follow his client’s instructions, counsel is, on the other hand, not only entitled but bound to conduct the defence in accordance with his own professional judgment. He must conduct the defence competently in accordance with his instructions.”
79. The case ofThe People (Director of Public Prosecutions) v. W.G.[2004] IECCA 43 concerned an applicant who had pleaded guilty to various sexual offences on the advice of counsel, then had misgivings about doing so, then following further legal advice was prepared to prepared to maintain his pleas, and then having been sentenced sought to appeal on the basis that that he entered pleas of guilty in circumstances where he had been in receipt of legal advice which was incomplete and inaccurate, and also that he was not given sufficient time to consider whether to plead guilty. The Court of Criminal Appeal dismissed the application, applying the McDonagh jurisprudence while also referencing the decisions inDPP v. Lynch(Unreported, Court of Criminal Appeal, Barron J 27th July 1999), andDPP v. B[2002] IR 246, both of which specifically concerned attempts on appeal to set aside pleas of guilty.
80. The case ofThe People (Director of Public Prosecutions) v. Doherty[2009] IECCA 17, was concerned with a claim that a rape trial was conducted in an unsatisfactory manner because the legal representation on behalf of the applicant failed generally to protect his interests, and in particular counsel for the applicant permitted certain evidence prejudicial to his defence to be admitted, and/or failed to challenge the admissibility of other evidence tendered by the prosecution. These claims were particularised in great detail by Macken J who gave judgment for the Court of Criminal Appeal. Counsel for the applicant at the leave to appeal hearing had argued that although the complaints then being made on appeal were not made in the course of trial, because of the incorrect and irrational tactics adopted by defence counsel, the arguments then sought to be made should be fully ventilated, as an exception to the general rule that points not made at trial are not normally permitted to be made in the course of an application for leave to appeal. The points then being made were intended to ensure that justice is done. Moreover, counsel argued the position fell squarely within the principles foundin The People (Director of Public Prosecutions) v Cronin (No. 2)[2006] 4 IR 329, in particular the following extract from the judgment of Kearns, J: “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”.
81. Counsel for the Director of Public Prosecutions in the Doherty case contended that the application was misconceived. The documents and materials in issue were led by the prosecution in the trial without objection but rather with the consent of the defence, it being clear that these were sought for the purposes of allowing the defence to follow a particular course of action at the trial for the perceived benefit of the applicant in his defence. The complainant and other witnesses led by the prosecution were all cross-examined to that end, which was clearly to the effect that the complainant was both inconsistent in her statements to several persons, and was a fantasist. It was perfectly proper in the circumstances for the evidence to be put before the jury.
82. The Court also heard a lengthy submission from counsel for the impugned previously instructed counsel who had accepted an invitation from the Court to participate as Notice Parties to the proceedings.
83. The Court of Criminal Appeal concluded that: “There is no doubt but that the applicant may not be precluded in an appropriate case, from raising the above grounds of appeal by reason of the jurisprudence epitomised, inter alia, by DPP v Cronin, supra., and jurisprudence along similar lines. Nor is there any doubt but that in exceptional circumstances, claimed serious incompetence of counsel may be a basis for a good ground of appeal. It is however inappropriate for this court to engage in a general enquiry into how a defence was chosen between an accused and counsel or with its details where as in this case, no allegation is made that the applicant was not consulted on his defence. Rather it should look at the basis for the complaint made and its contended for effect on the trial.”
84. The Court of Criminal Appeal went on to quote the passage from the judgment of Keane CJ in theMcDonaghcase, cited earlier in this judgment at paragraph 13 above, before observing:“In preparing for a case of this nature with its particular features, defence counsel clearly had a choice to make, which was to consider whether the balance of advantage lay in probing the inconsistencies in the statements eventually admitted, or whether it would make better sense from the perspective of defence tactics to exclude all of the evidence that was capable of being excluded, and to confine the case, as far as possible, to one of assertion and mere denial by means of vigorous cross-examination. The latter is what [counsel for the applicant] contends for. There were, however, as is clear from the above, undoubted disadvantages associated with whichever approach was adopted and therefore that choice was not an easy one.”
85. Ultimately, the Court of Criminal Appeal concluded as follows:“The court is of the view that the case was conducted by defence counsel in accordance with a pre-thought out agreed strategy. That involved allowing into evidence material such as the content of the above accounts given at different stages by the complainant in relation to the abuse to which she alleged she was subjected or other evidence of which complaint is now made. The legal issue which arises is whether such an approach is one which counsel, properly instructed, could properly and reasonably adopt. It is clear from the authorities that cases in which “a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially or criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be ‘extremely rare’.
[…]
In the present case, the court does not find that the conduct of defence counsel at the trial is open to the criticism now made of it or that the defence actually adopted was not put to the jury. Counsel was confronted with a very difficult situation and a particular approach to the defence was adopted with the applicant’s consent or on his instructions. Two or even more counsel may of course advise taking different valid approaches. Having regard to the analysis made by [Senior Counsel for the previously instructed counsel] of the factual and evidentiary issues arising, as set out above, it is not possible to conclude that the approach actually adopted was irrational, as claimed, nor that it was incompetent, nor in disregard of the applicant’s interests or his instructions. The defence strategy adopted was unsuccessful, it is true, but that has emerged with the benefit of hindsight.”
Discussion and Decision 86. This Court has read the entire trial transcript and has carefully considered the complaints made in the context of the trial as a whole. The focus of our enquiry has been on whether the matters complained of represented such a disregard of the accused’s interests that it cannot be said that he received a trial in “due course of law” as is required by Article 38.1 of the Constitution, or in other words a fair trial. This Court’s task has been made somewhat more difficult by the decision of the previous legal team not to avail of the opportunity to be joined as Notice Parties and to be separately represented at the appeal, as usually occurs when allegations of ineffectual representation by a previous legal team are made, e.g., as occurred in theMcDonagh,FlynnandDohertycases cited earlier in this judgment. They have been content to rely instead on the solicitor’s reply dated the 18th of December 2017 to Ms Bartel’s letter of the 5th of January 2017, both quotedin extensoearlier in this judgment. Despite this sub-optimal level of engagement by the previous legal team, we have ultimately not been persuaded that the appellant’s trial was unfair or that he did not receive a trial in due course of law.
87. It is clear from the correspondence exhibited that there was extensive consultation with the appellant both in the pre-trial phase and during the trial itself. It is contended by the former defence solicitor in his letter dated the 18th December 2017, and there is no affidavit from the appellant contradicting the assertion, that the defence legal team met with the appellant on each of the thirteen days of the trial. The defence legal team expressly take issue with any“assertion of lack of strategic awareness in the approach to Mr Farrell’s defence”and it is implicit in this that strategy and how the trial was progressing was regularly discussed during those thirteen days.
88. As regards the main defence strategy, the view appears to have been taken that the trial judge was unlikely to be sympathetic to any technical objections raised by the defence to the admission of the section16 statements, and that the previous statements of Mr Hickey would inevitably be admitted. Operating on that premise, it is to be inferred from how the case was approached overall by the defence, as reflected in the transcript, that the defence team’s overall strategic objective was not to waste time by challenging the admissibility of the s.16 statements in a voir dire they perceived was doomed to failure, and by doing so to provoke the ire of an already unsympathetic trial judge, but rather to try to convince the jury, who might be more open to the argument than the trial judge, that Mr Hickey, having changed his story in the manner in which he did so, was not to be regarded as either credible or reliable. In circumstances where Mr Hickey was the lynchpin of the prosecution’s case, the jury would be obliged to acquit Mr Farrell if they could not be satisfied as to his credibility and reliability to the standard of beyond reasonable doubt. This was certainly a viable and coherent strategy, even if others might not have regarded it as necessarily the best strategy.
89. In addition, but consistent with what we believe to have been the overall strategy, some other specific strategic decisions were identified by the former defence solicitor as having been taken. These included: i) to rely on evidence that clothing found in the appellant’s washing machine provided no forensic link to the crime.
ii) that there was no point in challenging the voluntariness of the statements of Mr Hickey that it was sought to introduce under s.16 of the Act of 2006, as they each contained the standard declaration, and Mr Hickey was not denying making them (merely claiming no recollection of making them), and there was no other ostensible basis for doing so.
iii) that as it was inevitable, in counsel’s judgment and estimation, that Mr Hickey’s statements would be admitted under section 16 of the Act of 2006, the Court should be invited to defer declaring Mr Hickey as hostile until after he had given evidence before the jury, his previous statements having been first of all placed in evidence before the jury. It was anticipated that this application would most likely be refused, and that this refusal would provide a potential ground of appeal.
iv) that to raise a requisition in respect of somewhat prejudicial remarks made by the trial judge in charging the jury on section 16 of the Act of 2006, would do more harm than good in that it would re-emphasise, and remind the jury of, what the trial judge had said.
v) that to cross-examine the witnesses Ms Hickey, Ms Cunningham or Gda Jennings on the voir dire would likely only yield limited results, and would have the undesirable effect of giving those witnesses a rehearsal or dry run in respect of evidence they would be required to give again before the jury. It was thought better to preserve the element of surprise for their cross-examination before the jury.
vi) that to requisition the trial judge in relation to how he charged the jury with respect to the wet clothes in the washing machine would be unwise, as the trial judge might well make further remarks to the jury that would be unhelpful to the defence.
90. All of these decisions were matters of judgment to be taken by the defence legal team, in consultation with their client. It is clear there was extensive consultation. While some of the judgments made might perhaps be questioned, or second guessed, with the benefit of hindsight, an appellate court is not entitled to intervene simply on that basis. It must be established that the judgments made were contrary to “all the promptings of reason and good sense”. We are not satisfied that that is the case here.
91. We consider that very substantial deference must be given to the judgment of the defence legal team that was acting at the time. They were best placed to have a feeling for how the trial was going, how the trial judge would respond to different scenarios were they to play out, and how the jury were reacting to the evidence. Much of that dynamic will be undiscernible from the arid pages of a transcript. We agree with the principle enunciated inStrickland v Washingtonthat judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of that performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. We further agree that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. This is consistent with Keane CJ’s comment in theMcDonaghcase that “the circumstances in which a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially of criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be "extremely rare". We do not see this case as coming within that category of extremely rare cases.
92. In so far as the complaints based on alleged failures to raise objections are concerned, we consider that many of the responding points made in the former defence solicitor’s letter are points well made. As is pointed out, objections are normally raised to questions which invite inadmissible evidence, or to answers which have proffered inadmissible evidence. There is no legal basis for objecting to the prosecution’s failure to ask questions. If the failure to do so results in a lacuna in the prosecution’s proofs, then that is to the benefit of the defence. The defence can then, at the appropriate time, make a submission to that effect either to support some application that they may decide to make or to resist some application on behalf of the prosecution.
93. Defence counsel is not obliged to pursue every conceivable objection that might be made in defence of his/her client. If a strategic defence is being run, and the objectionable matter is not potentially fatal to his/her case, counsel may prefer to remain focused on the main strategy or tactical objective and eschew pursuing collateral issues that might only serve to distract him/her, the judge and the jury from the immediate goal then being pursued. Just because a new team of lawyers, having reviewed the transcript, is critical of how the case was defended, and indicates that they would have defended it differently, does not mean that the appellant did not receive a fair trial.
94. We are satisfied in all the circumstances of this case that there is no reason to believe that the appellant’s trial was unsatisfactory, that it was unfair and that his conviction is other than sound. The justice of the case does not therefore require that the appellant should be allowed to ventilate and rely upon his proposed additional ground of appeal.
Conclusion
95. The Court is not disposed to grant the relief sought in the appellant’s Notice of Motion, and the application to add an additional ground of appeal is refused.
Decision
96. The Court having ruled out the amendment sought, must now consider the implications for this appeal of the Supreme Court decision inDPP v. Cronin[2006] 4 IR 329. In that case the court provided an authoritative statement of the criteria for admitting on appeal points not raised at the trial. Kearns J. stated as follows; “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.”
The possibility of raising such points is not entirely excluded. They may be admitted if they are “substantial and of fundamental importance to the fairness of the trial.” SeeDPP v. Boyce[2005] IECCA 143. The overriding duty of the Court is to see that justice is done. The restriction has a long history in Ireland. In Sandes “Criminal Practice Procedure and Evidence in Éire(2nd Ed., 1939) the learned author states;“The specific grounds of appeal must be stated in the notice of appeal… The Court of Criminal Appeal will not permit a defendant or his counsel, after he has read through the transcript of evidence and has made a meticulous scrutiny of it, then to formulate grounds of appeal.”
97. As to grounds 1 and 2, upon the basis of the law established in the above authorities, it is hard to see how the issues surrounding the section 16 admission of the statements of Mr. Hickey can be raised before this Court. As is clear from the transcript and from matters outlined above in our decision on the motion, it was an issue that was considered by senior counsel for the accused and the decision was taken for stateable tactical reasons not to object. In their letter in response to the motion, the solicitors for the appellant stated that Mr. Hickey never indicated his statements were involuntary and never denied that he made them. No argument has been advanced as to why the section 16 statements should not have been admitted. There was no objection taken to the section 16 statements being given to the jury. Nothing of substance or going to the fairness of the trial can be identified here. Thus grounds 1 and 2 cannot be entertained.
98. As to ground 3, the appellant’s legal team made a tactical decision not to challenge the learned trial judge’s reference to the “Limerick situation". They considered that emphasising the point might prove even more prejudicial. There was every opportunity for senior counsel for the appellant to requisition the judge and he chose not to do so. This was a tactical decision clearly and justifiably taken. No point is raised in this regard that rises to the level of substantial or that raises a question over the fairness of the trial. Senior counsel’s only request was to give the jury aCasey (No. 2)warning. This was refused. In the light of the section 16 statements that clearly show how well the appellant knew Mr. Farrell, there is no substance in this point. The learned trial judge may not have referred to that in his response to senior counsel but it had been amply canvassed beforehand, notably in the voir dire which took most of one day.
99. It is not possible to identify any defect in the manner in which Mr. Hickey was treated as a hostile witness or cross examined as such. He clearly was a hostile witness. Counsel for the DPP had clearly outlined to the Court how he intended to cross examine the witness and no objection was taken by senior counsel for the appellant.
100. Grounds 5 and 6 were raised by the appellant. The addition of the two charges was argued in some detail. The learned trial judge held that the only real unfairness raised was the lateness of the application. However he also noted that the appellant did in fact know at least two weeks in advance of the fact that he would face trial on those facts as well and no application for an adjournment was made. It was the choice of the appellant’s team at the time not to apply for an adjournment. These points also cannot be raised.
101. Grounds 7 to 9 deal with the refusal by the learned trial judge to give aCasey (No. 2)warning, his allowing the evidence of identification by Mr. Hickey when no identification parade had been held and failing to adequately warn the jury of the difficulties with identification evidence in this particular instance. As noted above, it was only in connection with aCasey (No. 2)warning that senior counsel for the appellant requisitioned the judge who refused. As also noted above, the evidence of the section 16 statements discussed extensively during the voir dire showed that Mr. Hickey knew Mr. Farrell quite well over a period of seven years. In the light of this evidence there is no reality whatever to a requirement for an identification parade, aCaseywarning or any other kind of warning about identification issues. This ground fails.
102. As to grounds 10 to 12 concerning the defence witness Niall Byrne, the manner in which he was cross examined by counsel for the DPP and the treatment of his evidence by the learned trial judge, none of these points were raised by the appellant’s team. This is probably because as observed by the letter of the solicitors for the appellant dated the 5th January 2017, they are devoid of any merit.
103. Ground 13 deals with the alleged failure of the learned trial judge to put the defence case adequately, being that the appellant was present but mistakenly identified. The ground appears devoid of reality in that nobody present in court during the trial could have been in any doubt as to what the defence was. In any event, not surprisingly, no point was raised at the trial and cannot be now.
104. Ground 14 deals with the admission of evidence of fibre lifts. It is argued that this evidence had no probative value or alternatively that any such value was outweighed by its prejudicial effect. It is clear that this evidence was highly probative. It allowed the jury to infer that Mr. Farrell was in the car where the assault occurred and seated behind Mr. Hickey. It should be noted that the appellant did not admit to his presence in his car until the first morning of the trial. This ground, again unsurprisingly, was not raised by the appellant at the trial and cannot be raised now.
105. Grounds 15 to 16 argue that the jury verdict was perverse. This argument is based upon the proposition that it was illogical and inconsistent to find the accused guilty on count 3 but not guilty on counts 1 and 2. This however is clearly not so. The only evidence supporting the first two counts were the statements of Ryan Hickey. There was no evidence of complaint to the Gardaí, nor any supporting photographic, forensic or other evidence to support Mr. Hickey’s statements. In clear contrast to this was the substantial body of evidence in support of the charge on count 3. This was; (a) Ryan Hickey’s statements,
(b) Ryan Hickey’s contemporaneous complaints,
(c) Ryan Hickey’s oral testimony and the inconsistencies therein,
(d) the evidence of Niall Byrne,
(e) the evidence of Saundra Hickey,
(f) the appellant’s comments to the Gardaí at interview,
(g) the fibre lifts taken from the vehicle where the assault took place,
(h) the medical evidence and photographs outlining the injuries sustained by Ryan Hickey.
This seems clear evidence that the jury very carefully considered the different charges and weighed the evidence before them carefully in respect of each of the separate counts. Their verdict seems entirely logical and firmly based on the relative evidential weight backing up the different counts.
106. Thus we reject all of the grounds of appeal put forward by the appellant in his notice of appeal. The appeal is dismissed. |
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