Birmingham P Edwards J. McCarthy J
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court (ex tempore) delivered on the 28th day of June 2019 by Mr Justice Edwards
Introduction
1. Following a three-day trial in July 2018 in the Circuit Criminal Court, the appellant was found guilty by the unanimous verdict of a jury verdict on the two counts on the indictment, namely assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994.
2. On the 26th July 2018, his honour Judge Nolan imposed a sentence of seven and a half years' imprisonment on the appellant, backdated to the 27th May 2018, in respect of the count of violent disorder, and took the s. 3 assault into consideration.
3. A key component of the prosecution case was identification evidence given by the injured party's brother, who claimed to have come upon the incident giving rise to the charges. Two days after the incident, while the appellant was detained for questioning having been arrested some time earlier, he was asked if he would participate in a formal identification parade. He declined to do so, as was his entitlement. In those circumstances the gardai arranged for an informal identification procedure and the controversial identification evidence arose from this. This evidence was challenged at trial on the basis that the informal identification procedure was unfair in the manner and circumstances in which it was conducted. It was submitted that the identification evidence ought therefore to be excluded. The trial judge rejected this challenge and admitted the evidence. The appeal to this court is confined to a single net point at this stage, namely, that the trial judge erred in so ruling.
Relevant evidence
4. The trial court heard that on the 11th of October 2015, the injured party, Mr Mark Conway, had attended a christening in Crumlin village. Following the christening he spent some time with his brother and several other guests who had been invited to the ceremony in a pub in Crumlin. He returned to his home on Captain's Road, Crumlin after midnight. He testified that as he was approaching the door there were a couple of lads coming by the gate. He stated: "I was going to put the key in the door and a bottle was thrown and smashed off the back of my head" .
5. After being struck, Mark Conway entered his house and examined his wounds, and noted that his head was "bleeding really badly. There was -- blood was running down the back of my jacket and I could see that there was bits of glass and stuff like that from the bottle" . At this point, at 1:24 a.m., he received a phone call from his brother, Derek Conway, and he told his brother about having been so injured. Derek Conway, prompted by concern about a perceived slowness on his brother's part in responding to his questions, assured him that he was on his way down. Mark Conway then left the house to venture up the road to meet him.
6. Once out of the house again, Mark Conway was further assaulted. Although he was unable to clarify the way it occurred, he stated in evidence that he was "knocked down or pulled down" to the ground, where "maybe four boys…were lashing the kicks into my head" . He implored them to stop but they paid him no heed. After passing out, he awoke long enough to remember his brother holding him before blacking out again. The next time he awoke was in the intensive care ward in hospital.
7. The complainant was treated for serious injuries, such as facial fractures to his eye socket and jaw, as well as blood pooling in the ear and a seizure which led to him being further hospitalised.
8. Derek Conway gave evidence that on his way to meet his brother, he saw five or six males on the road. Attempting to get a close look at the men, he asked one of them to light his cigarette and was told to "eff off" . Derek Conway described the man was of stocky build, wearing navy top and bottoms with a tracksuit top. After having seen the men, Derek Conway began walking onwards and saw his brother walking towards him. Mark Conway pointed the same man out to his brother and informed him that he was the one who had carried out the attack. At this point Derek Conway was knocked to the ground, and when he got up he saw his brother on the ground getting kicked by five or six males. He rang 999 and informed the men that he had done so. This prompted most of the assailants to flee, but one individual remained and kicked Mark Conway eight to ten times in the head. Derek Conway described this male (whom the prosecution contended was the accused) as being as tall, thin, and wearing a white top. He claimed to have gotten " a real good look at him because he was there on his own ".
9. On the following Tuesday (the 13th of October), Derek Conway attended Crumlin Garda Station, where he was informed that gardai had a suspect in custody and he was requested to view an informal identification parade in which a number of persons would walk separately along a corridor in front of him.
10. The trial court heard evidence from Sergeant Peter McBrien who said that he was informed that the appellant had declined to participate in a formal identification parade and that he had been asked to conduct an informal identification parade. A Garda had gone to Pearse College which was close to the garda station and had asked a number of college students there if they would volunteer to act as foils for the purposes of an intended identification procedure. A total of nine such volunteers were recruited, and brief details concerning each of them were noted. The procedure to be adopted was that the witness would observe each participant enter a corridor through a door at one end, walk the length of the corridor and then turn around and walk back again.
11. Derek Conway identified the third person to walk along the corridor as " the person that I seen - the second that person walked out that doorway he looked to the right and straightaway that was the person that went back in and kicked Mark on the ground that night ". He claimed his level of certainty to be at 100%.
12. Following his identification, the remaining seven persons continued to walk past the witness. Under cross examination Sergeant McBrien indicated that, while he had made record of the footwear of the volunteers and concerning the clothing of the appellant, he had no note as to whether the accused was wearing footwear. The prosecution accepted that there was no evidence to suggest that he was wearing footwear. Sergeant McBrien stated his belief that all the volunteers had a close resemblance to Mr Carlisle, and that he didn't need to run them all but felt that they were a good likeness. He accepted that he had not taken photographs of the volunteers.
13. The principal complaint concerning the fairness of the procedure adopted was that each of the foils was wearing shoes whereas the appellant was wearing no shoes. While the evidence is somewhat equivocal on the point, it seems likely that the appellant was wearing socks during the procedure, as he was observed on the CCTV record of an interview conducted with him earlier to be wearing socks (although not shoes). Significantly, at the time of picking out the appellant and positively identifying him Derek Conway had only seen two of the foils, namely the first two persons to walk along the corridor. The appellant was the third person to walk down the corridor and was immediately identified by the witness.
14. Under cross examination, Derek Conway confirmed that he had no memory of what the persons in the informal identity parade were wearing, it having occurred two and a half years ago. He accepted that he had not described the assailant to the gardaí as having a beard but remembered that the appellant had " heavy stubble ". He was not asked about footwear in cross examination.
15. At the appellant's trial, the jury also heard evidence from Garda Keith O'Brien and Garda Joseph Joyce that approximately an hour after the assault, they had encountered the appellant outside his home on Derry Park, Crumlin (approximately half a kilometre from the scene of the incident), and that he was wearing a white top and grey tracksuit bottoms. They stated that he was behaving in an aggressive manner, and that he had thrown a wheelie bin at their car. Furthermore, CCTV footage was shown to the court, which confirmed the presence of the appellant until around 1am on the date in question at a GAA club close to the locus where the complainant was assaulted and in the company of a man with a navy raincoat.
16. The case was made by the defence and not disputed by the prosecution that at the time of his arrest the appellant had no shoes on his feet and was only wearing socks. It was accepted that he would not have been wearing footwear in his cell prior to the informal identification procedure.
17. Inspector Barry Butler gave evidence that he spoke with the accused's solicitor on the morning of the 13th of October 2015, and that the solicitor indicated that the accused did not wish to participate in a formal identification parade due to marks on his face, but he was willing to do participate on a rearranged later date. Inspector Butler stated that he had not noticed any such marks on the appellant's face. Under cross examination, when asked if the identification could indeed have been conducted at a later stage, Inspector Butler stated:
"number one, the incident had just happened, and we had a witness to the incident so it was important that the witness got an opportunity to view the suspect as soon as possible. But secondly, from our point of view, and from my point of view as an investigator a controlled informal identification parade is as close as we can get to a formal identification parade. If we were to wait for [the accused] to make an arrangement to attend, he may attend, he may not attend. His appearance may alter at a later stage. So from my point of view the practical, the most straightforward and from an investigator's point of view the easiest way to deal with it was there and then on that day."
18. Garda Darren Swan and Garda Daniel Connell gave evidence of their assistance in the conducting of the informal identification procedure. Finally, Sergeant Blake, the member in charge, indicated that he could not say whether the accused had footwear on that date.
Submissions
19. The appellant submitted that the trial judge erred in law by permitting evidence of identification to go to the jury. It was further submitted that the identification process was fundamentally flawed and grossly unfair and that evidence of it should have been excluded at trial. It was said that the admission of that evidence had led to a conviction that was unsafe and which should be quashed.
20. Counsel for the appellant submitted that there is a real risk that the appellant was identified by the witness solely based on his lack of footwear, which would have singled him out in comparison to the volunteers. For that reason, it was suggested, the identification evidence should have been excluded.
21. Responding to this, counsel for the respondent points out that at the point at which the identification was made the witness in question had only seen two foils and yet was prepared to identify the appellant with 100% certainty. In those circumstances it was clear that footwear had had nothing to do with it. The witness had specifically claimed that his identification was based on instant recognition of the person once he had looked to his right i.e., " the second that person walked out that doorway he looked to the right and straightaway that was the person that went back in and kicked Mark on the ground that night ".
22. It was accepted that a formal ID parade would have been the optimal method of securing identification evidence. The appellant had been offered the opportunity to participate in a formal identity parade but had declined. It was submitted that if the informal procedure, to which recourse was then had, had fewer safeguards he could not justifiably complain about that - providing that it was substantially fair, which the respondent contended it was.
The Trial Judge's Ruling
23. The trial judge ruled in the following terms:
JUDGE: "I've heard your submissions. Obviously there was an informal ID parade. I have to accept from the evidence that for the purposes of this hearing that the defendant in his case Mr Carlisle didn't have shoes on. It seems that's Mr Spencer's main point in relation to the fairness of the ID parade. Now, I have to -- it's an informal ID parade and informal ID parades are not the same as I suppose formal ID parades where everything is I suppose done in a very organised manner and there's a set procedure that guards must follow in relation to that, in relation to a formal ID parade. The question is, was this an unfair procedure. Was the form of parade or identification process embarked upon by the guards unfair to Mr Carlisle by reason of what occurred?
Now, to decide that I must engage with the evidence given by the guards in relation to what happened. I must look at where it occurred. I must look at essentially what happened and it seems they procured nine volunteers. They brought them to the garda station. They kept them separate from the witness. It seems Mr Carlisle was in his cell and the third man out of the door was Mr Carlisle. It seems he was there was somebody in front of him, a guard, and somebody behind him, and three parties, two guards and the foil or the suspect emerged from the door. They crossed the hall and he had I think the witness was four metres from these three people and it seems to me is the absence of shoes an indicator or would it be an obvious indicator to the witness that obviously Mr Carlisle was the suspect.
Now, the question is would a person notice at all? I'm not sure. But I think in the circumstances this was a fair ID parade. The guards were making the best of a situation making the best of a situation. They couldn't force Mr Carlisle to do a formal ID parade; they had no power to do that. And it seems to me that his "no comment" response and what occurred it seems to me that his behaviour was tantamount to a refusal. I accept the inspector's evidence that a later ID parade was less than would be less than optimum in the sense that I think memories fade and it was important that this ID parade or identification process was performed immediately or as soon as possible. So, therefore, obviously there's imperfections in it, it's not perfect, but I think it's fair. So it's admitted."
Discussion and Decision 24. We have carefully considered all the evidence adduced before the court below both on the voir dire and before the jury and we are not persuaded that the informal identification procedure adopted in this case was fundamentally unfair. It was of course suboptimal that the appellant did not have footwear when all of the foils had footwear. However, the witness had only seen two foils at the point at which he had made his positive identification. It is true that they had footwear and that the appellant had none. But, for all the witness knew, the other persons who were yet to be presented to him might not have footwear either.
25. We consider that it is of great significance that the witness's identification of the appellant occurred upon the appellant turning to his right, i.e., towards the witness, just after he had entered the corridor, and that it was expressed to be with 100% certainty. We agree with the submission made by counsel for the respondent that there is nothing in the evidence to suggest that the presence or absence of footwear played any role in the identification.
26. It has been held that an informal identification procedure is permissible where a suspect has refused to take part in a formal identification parade, and that the admissibility of identification evidence resulting from the particular informal procedure will depend on the circumstances of the case. The People (D.P.P.) v Cahill [2001] 3 I.R. 494; The People (Attorney General) v. Martin [1956] I.R. 22; The People (Attorney General) v. Fagan (1974) 1 Frewen 375; The People (Director of Public Prosecutions) v. O'Reilly [1990] 2 I.R. 415. Clearly in considering the circumstances of any specific informal procedure the court concerned must consider whether it was fair to the suspect. We accept that it was not ideal that the appellant was not wearing footwear, in circumstances where the foils were wearing footwear. It is certainly possible to conceive that in another case a court would be concerned that a circumstance such as this might have led to the witness concluding that the person without shoes was likely to be the suspect in custody. We are satisfied, however, that that was not the case here. Only two out of nine foils had been scrutinised by the witness when the identification was made. Moreover, the instantaneous nature of it, and the circumstance of it occurring immediately upon the appellant turning to his right, leads us to conclude that the identification was based firmly on facial recognition and that footwear, or the absence thereof, had nothing to do with it.
27. In conclusion we are satisfied that the trial judge was correct to admit the evidence and we find no error of principle in his decision to do so.
28. We therefore dismiss the appeal.