Irish Court of Criminal Appeal

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Cite as: [2004] IECCA 8

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Judgment Title: D.P.P.-v- James Hourigan & Keith O'Donovan Neutral Citation: [2004] IECCA 8 Court of Criminal Appeal Record Number: 128/02 Date of Delivery: 19/03/2004 Court: Court of Criminal Appeal Composition of Court: Mc Guinness J., O'Neill J., Gilligan J. Judgment by: Mc Guinness J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Mc Guinness J.	Quash conviction, re-trial ordered

Outcome: Quash conviction, re-trial ordered

- 23 -

McGuinness J.
O’Neill J.
Gilligan J.

BETWEEN

Judgment of the Court delivered on the 19th day of March 2004 by McGuinness J.


The applicants in this case appeared before the Central Criminal Court on the 17th June 2002. Each applicant was charged with one count of murder contrary to common law and as provided for by section 4 of the Criminal Justice Act 1964. Both pleaded not guilty. Following a trial lasting ten days both applicants were convicted by a jury and were sentenced to life imprisonment.
The charges against the applicants arose from the stabbing by the second named applicant, Keith O’Donovan, of Noel McCarthy of No. 8 Spriggs Road, Cork, on 4th May 2000. Mr McCarthy subsequently died of his injuries at the Mercy Hospital, Cork. The first named applicant, James Hourigan, was with the second named applicant at the time of the attack, which took place at Mr McCarthy’s home at 8 Spriggs Road, Cork. Insofar as the first named applicant was concerned the prosecution relied upon the doctrine of joint venture. It was alleged that the first named applicant was in a common design with the second named applicant to cause death or serious harm to the deceased. The second named applicant admitted the fatal stabbing of Noel McCarthy and relied upon the defence of provocation.
There was a considerable amount of agreement between all witnesses, both for the prosecution and for the defence, on the events that led to the fatal stabbing of Mr McCarthy at about 3.30 a.m. on the morning of the 4th May 2000.
It was agreed that the McCarthy family, who lived at 8 Spriggs Road in Cork City, had known the O’Donovan family, who lived at No. 3 Spriggs Road, for more than thirty years and that there had always been warm relations between the two families. It was agreed that the second named applicant, Keith O’Donovan, and Noel McCarthy had known each other from childhood and had kept up contact, though they may not have been particularly close friends.
It was accepted that there was a physical fight between the second named applicant and Mr McCarthy at about 9.30 p.m. or 10 p.m. on the evening prior to the fatal stabbing. There was some conflict of evidence as to the role played by the first named applicant in this incident. The description of the way in which this fight was broken up differs on the evidence of a number of witnesses but it was agreed that the deceased’s mother, Mrs McCarthy, witnessed this first incident and played a role in bringing it to an end. It was accepted that at the time of this incident the deceased was drinking in his home with a number of friends including Sean Greene, Gerard O’Brien, Mark Lane, and Timothy Daly, all of whom were called as prosecution witnesses.
It was also established that a second violent incident occurred some few minutes after that fight. This second incident was precipitated by the deceased leaving his home in order to confront the second named applicant in the O’Donovan House at 8 Spriggs Road. It was accepted and admitted by both accused that the first named applicant, Mr Hourigan, assaulted the deceased on this occasion, causing an injury to the deceased’s face. It appears that the deceased then went to the Accident and Emergency Department of the Mercy Hospital where his facial injury was bandaged. He then returned to his home.
There was a considerable conflict of evidence in regard to what happened next. The evidence of the two accused men and of Keith O’Donovan’s mother Doreen O’Donovan was that after returning from the Mercy Hospital Noel McCarthy returned to the O’Donovan house where he used violent and abusive language and in particular frightened Keith O’Donovan’s child. The fact that Noel McCarthy went back to the O’Donovan house was at least to some extent supported by two prosecution witnesses, Sean Greene and Mark Lane. However the mother of the deceased, Mrs McCarthy, firmly denied that her son had returned to the O’Donovan house and stated that he had remained in his own home until the time of the fatal stabbing. The establishment of this incident of Mr McCarthy’s return to the O’Donovan house formed a crucial part of the second named applicant’s defence of provocation.
It was accepted that in or about 3.30 a.m. the first and second named applicants entered the McCarthy home. Mrs McCarthy was standing beside her son in the sittingroom in the presence of a number of other prosecution witnesses. The second named applicant carried a knife with which he stabbed Mr McCarthy in the groin. Mr McCarthy died shortly thereafter. There was also a conflict of evidence as to the role played by the first named applicant at the scene and immediately after the fatal attack. Details of this will be referred to later in the context of the first named applicant’s grounds of appeal.

Grounds of Appeal
The grounds of appeal put forward by the first named applicant were as follows:
1. That the learned trial judge erred in law and/or in fact in failing to accede to the first named applicant’s application to withdraw the charge of murder from the jury at the close of the defence case.
2. That the charge of the learned trial judge to the jury was unsatisfactory in that the jury at the end of the charge did not understand the applicable law as evidenced by the question/questions raised by the jury.
3. In the context of the question asked by the jury following the judge’s charge, the statement by the trial judge in relation to the question of common design to the effect or in the nature of “if you are not satisfied that there was a common design then you must acquit the first named accused and he walks” was inflammatory and prejudicial to the first named accused/applicant.
4. The learned trial judge’s comments to the effect that the principal prosecution witness, Mrs Mary McCarthy, (the mother of the deceased) was a “victim” was prejudicial to the accused and could have had an adverse influence on the jury, particularly having regard to the fact that the evidence given by Mrs Mary McCarthy to the jury was inconsistent with a prior written statement by her with regard to her evidence against the first named accused/applicant.
5. That in all the circumstances of the case the conviction was unsatisfactory and/or unsafe.
At the hearing before this court a further ground of appeal was put forward by way of notice of motion. This was as follows:-
6. The learned trial judge erred in law in failing to charge the jury to exclude all aspects of the cross-examination by Mr Blaise O’Carroll S.C. counsel for Mr O’Donovan, of Mr Hourigan in elation to the alleged receipt and disposal by Mr Hourigan of the murder weapon. In view of the fact that Mr O’Donovan gave no direct evidence whatsoever in relation to this allegation, the jury ought to have been directed to ignore this line of cross-examination but no such direction was given.
The grounds of appeal put forward by the second named applicant were as follows:
1. That the learned trial judge’s comments to the effect that the principal prosecution witnesses, Mrs Mary McCarthy (mother of the deceased) was a “victim”, had a prejudicial influence on the jury in the weighing up of her evidence as against the evidence of the first and second named accused.
2. That the learned trial judge’s comments at the commencement of his charge to the jury in relation to the closing address of counsel for the second named accused unnecessarily and unfairly undermined the effect on the jury of that closing address.
3. That in all the circumstances of the case the conviction was unsatisfactory and/or unsafe.
Again the permission of this court was sought to bring forward an additional ground of appeal as follows:
The learned trial judge erred in fact and in law in failing to discharge the jury after it was brought to its attention that the photograph of the second named accused was published by the Irish Examiner on the 17th June 2002 which showed him to be in custody and under restraint.

The Application for a Direction
During the course of the trial at the close of the evidence for the defence counsel for the first named applicant sought from the learned trial judge a direction that the charge of murder be withdrawn from the jury. The ground put forward by counsel was that the only evidence supporting a charge of murder through joint venture against the first named applicant was that of Mrs McCarthy, mother of the deceased, and that her evidence was so inconsistent with that contained in her prior statement to the Gardai that no jury could properly rely on it.
Counsel for the defence both at the time of the trial and in submissions to this court, listed a number of these inconsistencies.
The first referred to the “scuffle” which had taken place outside the McCarthy home at 9.30 or 10 p.m. Mrs McCarthy had first observed this fracas from her bedroom window. From there she observed the second named applicant, Mr O’Donovan, banging the deceased’s head off the door step. She also saw the first named applicant who was apparently intervening and trying to separate the other two men. Mrs McCarthy then descended to the street. In her statement to the Gardai she repeated that Mr Hourigan was intervening and trying to separate the other two. In her evidence at the trial, however, she insisted that Mr Hourigan was also attacking the deceased and helping to bang his head off the step. When he saw her approach “he pulled back and stood with his back to my neighbour’s wall”. (page 16 day 2 question 66). In both accounts she herself describes her own intervention and how she brought the fight to an end.
Further inconsistencies between her prior statement and her evidence at the trial arose in her description of the fatal stabbing of the deceased. Counsel for the first named applicant, Ms Hyland, summarised these as follows.
In her evidence at the trial Mrs McCarthy stated:
1. That Mr Hourigan was tapping an object rhythmically against his hand immediately prior to the stabbing of the deceased by Mr O’Donovan;
2. That Mr Hourigan had left the house immediately after the stabbing but came back in and raised his weapon in a menacing way at Mrs McCarthy in order to force her to let go of the knife Mr O’Donovan had used to stab Mr Hourigan;
3. That Mr Hourigan came back towards Mrs McCarthy when Mark Lane left the house and said he would get Mrs McCarthy if she went for a Garda while pointing his finger threateningly at her;
4. That he took out his weapon again and came back when Peter McCarthy asked Keith O’Donovan what he had done.
In her original statement to the Gardai however her only evidence against Mr Hourigan was:
1. That he was with Mr O’Donovan in the house;
2. That after the stabbing when Mark Lane sought to help Noel McCarthy Mr Hourigan held up a hack saw to Mark Lane and said “hey hey”.
It should be noted in this context that none of the other prosecution witnesses gave evidence against Mr Hourigan. Mr Peter McCarthy, the brother of the deceased, gave evidence that after the stabbing of his brother he saw two people walking up the road and identified one of them as being Keith O’Donovan. He made no reference to Mr Hourigan. Neither Sean Greene nor Mark Lane, both of whom were in the McCarthy home at the time of the stabbing, gave any evidence about the presence of Mr Hourigan there, let alone his behaviour. Mark Lane, in particular, gave no evidence whatever about any threatening behaviour by Mr Hourigan towards him.
Ms Hyland submitted to this court that the factor that required Mrs McCarthy’s evidence to be absolutely reliable was the nature of the charge against the first named applicant. It was common case that Mr Hourigan did not participate in the stabbing of the deceased and the prosecution case rested upon the charge of joint enterprise or common design. Thus details that might be considered to be of lesser importance in a case where a joint enterprise was not at issue were of critical importance in the instant case as they went to demonstrate the only relevant matter, which was Mr Hourigan’s state of mind when he was present at the stabbing. In those circumstances the evidence as to his conduct before, during and after the stabbing was absolutely crucial in order that the jury could assess whether or not he was indeed participating in a joint venture to cause serious personal injury or death to Mr McCarthy.
The learned judge adjourned the trial for a brief period in order to consider the application for a direction and to examine the evidence of Mrs McCarthy. Following a detailed ruling (day 7 page s 15 to 20) he refused the application. It is against this ruling that the first named applicant appeals.
In her submissions Ms Hyland relied on the case of R v Galbraith [1981] 1 W.L.R. 1039. Senior counsel for the Director, Mr Edwards, also relied on a passage from the judgment of Lord Lane C.J. in this judgment which has been cited with approval by the courts of this jurisdiction on many occasions (for example by Denham J. in the judgment of this court in D.P.P. v. M (unreported February 15th 2001) and by Flood J. in the Central Criminal Court in D.P.P. v. Barnwell, unreported January 24th 1997). In his judgment Lord Lane stated:
“How then should a judge approach a submission of ‘no case’?

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of is inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made to stop the case.
(b) Where however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

Mr Edwards submitted that the instant case came within category (b) above. Even if there was a degree of inconsistency, Mrs McCarthy’s evidence was not so riddled with inconsistencies as to render it unsafe to allow the case to go to the jury. In fact it was uniquely a matter for the jury to determine the reliability of her testimony.
This court notes that the learned trial judge gave full and careful consideration of the application for a direction. In his ruling he conducted a careful review of Mrs McCarthy’s testimony. He rejected the defence criticism of Mrs McCarthy for failing to return to the Gardai to volunteer a supplementary statement in respect of matters not in her original statement as not being a reasonable criticism.
There is no doubt that there was a level of inconsistency between Mrs McCarthy’s evidence at the trial and her prior statement to the Gardai. She was carefully and thoroughly cross-examined by both counsel for the defence at the trial in regard to all the above mentioned inconsistencies. The jury heard her evidence and observed her in the witness box. In addition they were given copies of her prior statement to the Gardai.
In the view of this court the learned trial judge was entirely correct in holding that the weighing of Mrs McCarthy’s evidence was essentially a matter for the jury and in refusing the application for a direction. This ground of appeal therefore fails.

The Trial Judge’s Charge to the Jury
Two of the grounds of appeal put forward by the first named applicant relate to matters arising from the learned trial judge’s charge to the jury.
It was firstly submitted by counsel for the first named applicant that questions raised by the jury, in which they sought clarification on the options open to them in their verdict for both accused, indicated that in his charge the trial judge had not made clear the applicable law in regard to the first named applicant. Counsel submitted that the fact that after three and a half hours of deliberation the jury found it necessary to put such a question to the trial judge indicated that the jury did not understand the concept of joint enterprise and/or common design and that therefore the charge was inadequate.
Counsel for the Director submitted that there was nothing confusing or inadequate about the learned judge’s charge. The defence had not raised any requisition on the grounds that his charge was unclear or likely to confuse the jury. In any event the jury had quite properly availed of their right to seek further clarification which they properly received.
In his charge the learned trial judge dealt clearly and in detail with the definition of murder. He went on to deal with the charge against the first named applicant as follows: (Book H page 16-17):
“The case against Mr Hourigan, the prosecution told you, is based on the doctrine of joint venture, also known as common enterprise. That means this; if a number of people set out to rob a bank then every member of the gang is responsible for everything that happens in the course of the robbery if it is within the scope of the enterprise. So you might have a member of the gang who is miles away listening into police calls on a scanner. You might have somebody outside the bank keeping nix. Now they are equally responsible for everything that goes on inside as the men robbing the bank but for responsibility to attach, what is done must be within the scope of the common design, the enterprise or the plan. Now if a number of people enter a house for the purpose of committing burglary and one of the gang opens the door in the house and he finds a defenceless woman in there and he decides he will have a spot of opportunistic rape, well then he has gone beyond the scope of the enterprise of the plan and he alone will be guilty of the crime of rape. But the entire gang will be responsible for everything that happens so far as the burglary is concerned.”

At Book H page 23 the judge returned to the subject of the doctrine of joint venture:-
“Now so far as the co-accused is concerned, the prosecution are relying on the doctrine of joint venture. They say he was in a common design to cause at least serious personal injury or death to Noel McCarthy and that is the issue you have to try in relation to him. Now if he was not in the common design, he is entitled to be acquitted. Presence at the scene of a crime, no matter how heinous, is not enough to attach criminal liability to somebody and there is no criminal liability for being a callous spectator at the perpetration of a crime, there is no obligation to prevent it. So if he was not part of the joint venture, common design or plan, then he is entitled to be acquitted, he is entitled to a finding of not guilty. But if he were part of the common design, then he is responsible for what happened with his co-accused. Now common design is not a legal document, you know. You do not have to go through complex negotiations as to what the plan is. You infer as a matter of common sense what the situation was prevailing at this time. Were there two people engaged in an enterprise which would result in at least serious injury to Noel McCarthy or was Mr Hourigan not involved or merely a spectator or whatever? That is a finding of fact you have to make and you do it from considering all the evidence as a whole.”

At the close of his charge to the jury the trial judge gave the jury directions as to the verdicts that were open to them (Book 5 page 45):
“Now, when you have arrived at your verdict, the foreman fills in that box and she then signs it on all your behalfs. Now, what is capable of going into the box is, first of all, the words ‘not guilty’. Now, that is an acquittal. For reasons I have indicated already, that could only be written in the case of James Hourigan. As Keith O’Donovan has admitted an unlawful killing, that finding is not open against him. But so far as James Hourigan is concerned, if you are not, all twelve of you, satisfied to the standard of beyond reasonable doubt that he was involved in a joint enterprise with Keith O’Donovan to cause at least serious injury or death to Noel McCarthy, then you would fill in ‘not guilty’ in that box.

Now, the word ‘guilty’ is a finding of guilty of murder. If you find the accused not guilty of murder but guilty of manslaughter, it is important that you get the formula right and I would ask that somebody writes the formula down so that problems are not caused. If you are acquitting of murder but finding an accused guilty of manslaughter, you write in the words ‘not guilty of murder but guilty of manslaughter’. One of you who is taking notes, would you please write that formula down so it is got right.

Now, so far as Keith O’Donovan is concerned. You have to consider in relation to him, first of all, did he have the intent necessary to sustain the count of murder. That is an intention to cause at least serious injury or death to Noel McCarthy. If you were not satisfied in relation to that, all twelve of you, to the standard of beyond reasonable doubt, you would find Keith O’Donovan not guilty of murder but guilty of manslaughter.”

The learned judge then went on to deal with the defence of provocation.
When, after some hours of deliberation, the jury expressed “slight” confusion about the verdicts that were open to them, the judge again dealt with the definitions of manslaughter and murder, and the defence of provocation. With regard to the first named applicant he said (Book I page 52):-
“Now, in respect of James Hourigan the State case is that he was involved in a joint venture with Keith O’Donovan. Keith O’Donovan used the knife and the State accepts that that is the situation. James Hourigan was not involved in stabbing anybody. But if you are involved in a common design, if you are involved in a joint enterprise, then you are responsible for everything that happened within that joint enterprise. So if they were acting together, if they were acting in concert, if Keith O’Donovan you find murdered Noel McCarthy, then James Hourigan is responsible for murder. If you find manslaughter against Keith O’Donovan then James Hourigan is responsible for manslaughter, if he was involved in a joint enterprise.”

This court has set out these quotations from the judge’s charge at some length because in the opinion of the court they demonstrate the care which the trial judge took in explaining the somewhat difficult concept of joint venture to the jury. It is hard to see what more he could have said by way of explanation. The slight confusion suffered by the jury was met by a further clear and careful explanation. In this court’s view the jury cannot have been under any misapprehension as to the charge that was brought against the first named applicant and as to the verdicts that were open to the jury in regard to both applicants. This ground of appeal also fails.
The first named applicant’s next ground of appeal also arises from the reply given by the trial judge to the question raised by the jury. Following on the passage quoted above the judge continued (Book I page 52):
“Now, if he was involved in the joint enterprise or if you are not satisfied to the standard beyond reasonable doubt that he was involved in a joint enterprise, then he is entitled to a verdict of not guilty in his favour and he walks free. Now, whether there was a joint enterprise or not is a matter you infer from all the facts from the entire circumstance of the situation.”

The case made by the first named applicant is that the language used by the trial judge in making a reference to the first named applicant “walking free” was inconsistent with the presumption of innocence and was prejudicial. By stating that, consequent upon a finding of not guilty, Mr Hourigan would “walk free”, the trial judge used language that had the unavoidable connotation of a guilty person wrongfully escaping a conviction or the consequences of his acts. It implies that his freedom is unmerited and should not be enjoyed by the accused. This was wholly inconsistent with the presumption of innocence that every accused person enjoys. Given the nature of the charge against Mr Hourigan and given that there was no allegation that Mr Hourigan had participated in the actual stabbing of the deceased, it was particularly important that the jury approached the evidence of the conduct of Mr Hourigan with the utmost impartiality.
Counsel for the Director submitted in regard to this ground of appeal that the learned trial judge’s statement was legally correct and factually accurate and was not calculated to, nor did it in fact, prejudice the jury against the first named applicant.
It is of course true, as submitted by counsel for the Director, that the trial judge’s statement was legally correct and factually accurate. This court accepts without the slightest doubt that the use of the phrase “walks free” was not intended by the learned trial judge to prejudice the jury against the first named applicant. It is, however, a phrase which is commonly used in popular journalism in the context of a person who was widely believed to be guilty of some offence but who has not been convicted of that offence. The use of the phrase in this way may well be inaccurate, careless, or simply wrong but it is a phrase which seems to carry a connotation of unworthy escape from the consequences of one’s acts. The applicant argues that the use of such a phrase might imply in the minds of the jury that the judge viewed the first named applicant as guilty and considered that his acquittal would be undesirable. This is probably to lay too much weight on the use of such a phrase and in itself the use of this phrase would not be sufficient ground to quash the verdict of the jury. Nevertheless, given its common connotation, the phrase “walks free” was unfortunate. It was also unnecessary since the learned trial judge had already made the position perfectly clear by saying that the first named applicant would be entitled to a verdict of not guilty in his favour.
A further ground of appeal, which is common to both the first and the second named applicant, is related to certain remarks made by the learned trial judge at the conclusion of the closing speech to the jury by counsel for the second named applicant and immediately prior to the judge’s charge to the jury. The trial judge stated:
“Madam Foreman, members of the jury, Mr O’Carroll in the course of his address to you referring to the evidence of Mrs McCarthy, made reference to ‘the rules of the game’. He then went on a couple of minutes later to describe her son, Noel, ‘an innocent man being slaughtered’. Now one matter which is not an issue here is that Mrs McCarthy is a victim. She had been present for every single minute of this case and she must have been acutely offended to hear what we are engaged upon at the moment described as ’a game’ and also to hear her son, Noel, described in the terms in which he was. There will have to be culture change in the criminal courts to show more sensitivity towards the victims than is shown at present.”
(lines 8 to 22, page 3, day 8).
The first named applicant submits that this reference to Mrs McCarthy as “a victim” was prejudicial to the accused and could have had an adverse influence on the jury. It was in essence an endorsement of the evidence of Mrs McCarthy. The evidence of Mrs McCarthy was the sole evidence in relation to the alleged intention on the part of the first named applicant to participate in the killing or serious injury of the deceased. Counsel for the first named applicant again stressed the serious inconsistencies between Mrs McCarthy’s evidence and her prior statement to the Gardai and submitted that in those circumstances it was particularly important that the jury should not be given the impression that the evidence of Mrs McCarthy was endorsed or approved by the trial judge.
In making this submission counsel relied on the judgment of this court in the case of D.P.P. v Morrissey (10th July 1998) in which a comment by the trial judge about the bravery of the complainant was held to be a ground for quashing a conviction of sexual assault. In that case, at the end of the complainant’s evidence, the trial judge said to the complainant “first of all I want to say thank you for giving your evidence Patricia. You have shown remarkable courage in the circumstances, when the giving of the evidence was causing you so much grief and so much hardship. I think you are a very brave young girl.” At the beginning of his charge to the jury the trial judge in that case said, inter alia,

“As I said to her (the complainant) I thought she was very brave because she was obviously apprehensive but yet she overcame her apprehension to come in and give evidence. That, of course, is something which I will be dealing with later on, that is my opinion. You will remember, Mr O’Carroll S.C., said that the reason she was upset on giving the evidence was because she was not telling the truth. So what I say to you about it - - I actually complimented her. What I said to her does not have anything to do with her veracity. I will be dealing with that in a moment, but I am just saying that.”

In the course of the judgment of this court Barron J. held, in respect of those remarks, that:

“The remarks made in the course of the trial and these remarks at the beginning of the charge were unfortunate. The Court has no doubt that they must have influenced the jury in coming to its verdict. A trial judge is entitled to put a witness at his or her ease and in particular a witness who is giving evidence on video link since they are clearly persons of tender years. They need reassurance. However, it is inappropriate to congratulate them on the conclusion of their evidence and it is equally inappropriate to refer again to such matters in the charge”.

Barron J. went on to say:

“The learned trial judge in effect referred to the complainant and by implication to her evidence in such a way that he clearly gave it the seal of approval. Although he did say: ‘What I said to her does not have anything to do with her veracity’, this was not sufficient in the context to outweigh what he had already said and the manner in which he had said it.”

Counsel for the first named applicant drew an analogy between the reference to the complainant in D.P.P. v Morrissey and the reference to Mrs McCarthy in the instant case. She argued that by referring to Mrs McCarthy as a victim the trial judge was implicitly giving Mrs McCarthy and by implication her evidence the seal of approval. Moreover, unlike the situation in the Morrissey case, there was no qualification given in relation to the veracity of Mrs McCarthy’s evidence, either at the time the comment was made or subsequently.
Counsel for the second named applicant, Mr O’Carroll joined in the submissions made on behalf of the first named applicant. The second named applicant had relied upon a defence of provocation. This defence depended upon evidence that the deceased, Noel McCarthy, returned to the O’Donovan home subsequent to his visit to the Mercy Hospital and there behaved in a manner which would amount to an act of provocation. This evidence of the second visit to the O’Donovan home was at least to some extent corroborated by two of the prosecution witnesses, Sean Greene and Mark Lane, as well as being part of the evidence of both accused and of Mrs O’Donovan. The only witness to deny that any such second visit took place was Mrs McCarthy. Thus her evidence was apparently crucial to the jury’s rejection of the second named applicant’s defence of provocation.
Mr O’Carroll submitted that the evidence of Mrs McCarthy had to be weighed by the jury against the evidence of the second named applicant and other witnesses in the trial. He submitted that the trial judge’s comment amounted to a commendation of Mrs McCarthy and that, on hearing it, a jury would be inclined to treat her evidence more sympathetically than they might otherwise have done.
As regards this ground of appeal it must firstly be stated that the transcript of evidence in this case predates the current practice direction in regard to the recording of speeches by counsel. This court, therefore, does not have before it the text of Mr O’Carroll’s address to the jury to which the learned trial judge so strongly objected.
It is also clear that the remarks of the learned trial judge in this case are not by any means so objectionable as those made by the trial judge in D.P.P. v Morrissey.
Nevertheless, Mrs McCarthy’s evidence was absolutely crucial to the conviction of murder of both Mr Hourigan and Mr O’Donovan. It is also true that her evidence in some important aspects (including those which supported the murder charges) was in conflict both with that of the accused men, that of Mrs O’Donovan and that of some prosecution witnesses. In addition there were important inconsistencies between her actual evidence and her prior statement to the Gardai (which was handed in to the jury).
This court has carefully considered the entire of Mrs McCarthy’s evidence. Leaving aside the question of its credibility, which was of course a matter for the jury, there is no doubt that she gave her evidence at times in a somewhat dramatic fashion. Her descriptions of her deceased son painted him on the one hand as a weak and defenceless victim who had recently turned to religion, but on the other hand as a champion boxer who had a recurrent and severe drink problem and who was called upon by his friends to defend them physically if they were attacked. It was open to defence counsel to comment on all these aspects of her evidence and no doubt he did so in strong terms.
Mrs McCarthy was, of course, a victim in the sense that she had suffered the violent death of her son in her presence and in her home. Nevertheless, it is the view of this court that the remarks of the learned trial judge, in the words of Barron J., “clearly gave [her evidence] the seal of approval”. Also, unlike the trial judge in D.P.P. v Morrissey, the trial judge did not go on to point out that what he said “had nothing to do with her veracity”. In circumstances where the evidence of Mrs McCarthy was so crucial this court considers that there is a real danger that the trial judge’s remarks may have influenced the jury to reach verdicts of murder and thus rendered the trial unfair and unsatisfactory.

Additional Ground of Appeal
With the permission of the court an additional ground of appeal was put forward on behalf of the second named applicant. This concerned the publication on 17th June 2002 by the Irish Examiner of a photograph of the second named applicant in the company of a uniformed person who appears to be a prisoner officer.
On the morning of the second day of the trial counsel for the second named applicant applied to the learned trial judge for the jury to be discharged on the ground that they might have been prejudiced by this photograph which, counsel submitted, showed the second named applicant in custody and under restraint. This application was refused and the second named applicant now appeals against that refusal.
The photograph in question is taken at an angle which does not show the lower part of Mr O’Donovan’s arms and thus does not show whether he is in handcuffs or under restraint. This aspect of the photograph was stressed by counsel for the Director.
Nevertheless, the general impression given by the photograph is undoubtedly that of a person in the custody of a prison officer. The general undesirability of photographs of this nature during the course of a trial has been emphasised repeatedly both by the Central Criminal Court and by this court. In Director of Public Prosecutions v Davis [2001] 1 I.R. 146, in a judgment delivered by Hardiman J., this court held obiter that the shackling of a prisoner has an adverse effect both on his dignity and subjective well-being and on the perception of him by the community. Protection of restraint prisoners from publicity, including photographers, was mandated by prison rules. Publication of photographs of persons in restraints were capable of amounting to contempt of court. A trial judge, in exercise of his inherent power to ensure a fair trial, would be permitted to require that such publications would not occur. More recently in an ex tempore judgment which I delivered on behalf of this court on the 26th November 2003 in the case of Director of Public Prosecutions v Laurence O’Sullivan the court drew attention to the undesirability of the publication of a photograph where actual handcuffs were not shown but the pose of the accused man indicated that he was under restraint. In that case the court held that the trial judge exercised his discretion correctly in refusing to discharge the jury.
In the present case, as in the Laurence O’Sullivan case, the court deplores the publication of such photographs and accepts that the photograph concerned was to some extent prejudicial. It is, however, open to the trial judge in such circumstances to deal with these matters otherwise than by discharging the jury. In the present case the learned trial judge in his charge to the jury (day 8 page 7) emphasised to the jury that in finding the facts they were confined to the evidence that they had heard in the witness box and that had been put before them in documentary form. He instructed them not to wander outside the evidence or to speculate. In the circumstances this court believes that the learned trial judge correctly exercised his discretion in refusing to discharge the jury.

Conclusion
The court has rejected a number of the grounds of appeal brought forward by both applicants. The court is, however, concerned as to the possible effect on the minds of the jury of the trial judge’s remarks made immediately prior to his charge to the jury in connection with the speech of counsel for the second named applicant. As stated earlier the court considers that there is a real danger that the trial judge’s remarks may have influenced the jury and thus rendered the trial unfair and unsatisfactory.
The court will, accordingly, treat the application for leave to appeal as the appeal and will quash the convictions. In exercise of its jurisdiction under section 5(1)(b) of the Courts of Justice Act 1928 the court will order a re-trial.

DPP v Hourigan & Anor