Judgment Title: D.P.P.-v- Kieran Ryan, David McCarthy, Edward
McCarthy, Patrick McCarthy & David Sheehan
Composition of Court: Macken J., Lavan J., O'Sullivan J.
Judgment by: Macken J.
Status of Judgment: Approved
Outcome: Affirm conviction, vary sentence
THE COURT OF CRIMINAL APPEAL
142,143,144,145 & 146/04
The People at the Suit of the Director
Of Public Prosecutions
Kieran Ryan, David McCarthy, Edward McCarthy, Patrick McCarthy and David Sheehan.
Judgment of the Court delivered on the 3rd day of April 2006 by Macken J.
This is a judgment arising out of applications for leave to appeal against conviction and sentence in the above matter. The five Applicants were all convicted on the 2nd June 2004 at the end of a thirteen day trial in the Circuit Criminal Court, Limerick, in respect of charges of violent disorder, contrary to Section 15 of the Criminal Justice (Public Order) Act 1994, and were, on the 29th June 2004, each sentenced to six years.
The several Applicants raise various grounds of appeal. Not all are common to all Applicants, but it is clear that overall there are four or five grounds raised, and it is appropriate in the circumstances that each of the grounds be dealt with. The Court had the benefit of written submissions of the several Applicants and of the Respondent, and all counsel for the Applicants were of very considerable assistance to the Court in adopting arguments already made by co-counsel rather than repeating similar arguments on the same grounds of appeal.
The events which gave rise to the trial in this matter took place on the 27th May 2003. On that occasion the five Applicants were in a restaurant on the Ennis Road in Limerick City, with partners and/or family members, including young children. The premises had a car park in front of it, and cars belonging to the Applicants or to members of their group were parked there. At a certain moment during the late afternoon, a HIACE van was driven into the car park from which emerged two men. These two men had implements, a walking stick and a snooker cue, and on the evidence it would appear that the Applicants took some implements or items, including a baby chair and a plastic sign from the restaurant, and one of them purchased videos from an adjoining premises, and armed with these various items, there was what has variously been called “a commotion” or a “pitched battle” between these two groups, comprising the Applicants and the other two.
By happenstance an unmarked car or cars bearing garda personnel came across these events and having come into the car park, separated the men, and in all the fracas lasted quite a short period of time. Although Counsel for some at least of the Applicants suggested that there had been no injuries, or none of a serious nature, it is the case that one at least of the men who had arrived in the HIACE van required 16 staples to wounds in his head after the events.
As an additional fact, another car carrying several men also arrived on the scene, but entered the car park at a different entry point to the HIACE van. Out of this car, a VOLVO, came two men, carrying a golf club and a steering lock respectively, in apparent support of the men in the HIACE van. They were requested to leave by the garda personnel, and did so, and they were charged in these proceedings with possession of weapons offences, while the men from the HIACE van, as well as all the Applicants, were charged with violent disorder.
On the sixth day of the trial, the men from the HIACE van pleaded guilty to the violent disorder charges, and the two men who had got out of the VOLVO car pleaded guilty to the weapons possession charges on the following day. As to the first two, they were each sentenced to three years, and as to the last two they were sentenced to two years and 18 months respectively.
Grounds of Appeal
Against that brief background, the grounds of appeal can be divided into the following:
The learned trial Judge failed to permit severance of the trial in respect of the five Applicants, from the trial of the four other persons charged in respect of the same incident. Variously, this relief was sought on the grounds, inter alia, (a) that it would be disadvantageous and prejudicial to the Applicants that they should be tried with others who had been charged with additional counts of possession of weapons, which might have the effect of influencing the jury or that the jury might prejudge the Applicants to be undesirable types of person; (b) that since there should had been separate returns for trial, it follows that there should have been separate trials, and (c) there was inordinate security both in and also around the courthouse which would likely have a particular and prejudicial effect on a jury.
The Respondent argues that it is usual that persons being tried in respect of the same incident are tried together, citing jurisprudence in which this is established, and secondly, that an essential ingredient in the charge in the present case, namely violent disorder, is the existence of a common enterprise which of its nature involves several people, and requires at least three to be constituted. It is therefore quite proper for all persons involved to be tried together, and the learned trial Judge has not erred.
As to this ground of appeal, the jurisprudence makes it clear that the issue of severance is one within the discretion of the trial judge, a discretion which must be exercised judicially. Concerning the application made prior to the commencement of the trial, based on the grounds recited above, nothing of the type found in the case of Burke v O’Leary (unreported, 10th March 1986, 3 frewens 92) existed in the present trial, nor other similar factors such as to suggest that a risk of injustice to the Applicants existed here.
The trial, although involving several accused, and perhaps even more lawyers, was nevertheless not a complex one. Certainly no valid ground of appeal arises from the existence of different returns for trial. Nor was the learned trial Judge incorrect in assessing that the mere existence of two distinct “camps” of Defendants would suggest that this would be in any way prejudicial to the Applicants.
As to the question of security, the learned trial Judge fully recognised where the responsibility for the same lay, but in any event made appropriate statements so as to endeavour to ensure that security would not be of a nature as to be likely to influence a jury adversely to the Applicants. In the circumstances, the Court is satisfied that the learned trial Judge correctly exercised his discretion in rejecting severance of the trials and finds that this ground is not sustainable.
As to the ground that when the remaining four Defendants pleaded guilty after six or seven days of trial, the learned trial Judge ought to have discharged the jury at that time, on the grounds that not to do so would unduly prejudice the remaining defendants, it is sufficient firstly, to note that no application was made to the learned trial Judge in that regard at the time, and moreover it would appear from the transcript, as was pointed out to this Court by Mr. O’Sullivan B.L., on behalf of the Respondent, that it was agreed by then Counsel for the Applicants that the existence of those guilty pleas would in fact be disclosed to the jury. In the circumstances it is difficult to see how any criticism can be made at this time of the learned trial Judge’s handling of the trial in that respect.
Next there was the ground arising in respect of the use of video evidence, although it was clearly the view of all Counsel arguing this point that there mere existence of a video and its relaying to a jury was not the real issue in this appeal. What is complained of is something related to the existence of the video, namely, the commentary evidence of Garda O’Neill for the prosecution on its content, as the video was being shown to the jury. Essentially, it is argued that type of commentary which occurred in the trial here is not permissible in law, in particular having regard to the cautionary approach considered to be appropriate according to the decision of Barron J. in The People (Director of Public Prosecutions) v Maguire  I.R. 286.
The Respondent argued that the commentary given in this case was in fact acceptable, and was no more than similar commentary made in the course of evidence by another Garda, Garda Burton, who was a witness to the events, and that Garda O’Neill, being in the same situation, that is to say, a witness to the events, was merely describing on what he was actually seeing in the video, which was perfectly permissible.
On this ground of appeal, the Court finds as follows. There is a distinction to be made between, on the one hand, a person giving a commentary on what has been recorded on a video as it is being viewed by a jury, where the person doing so had no first hand knowledge of, and had not witnessed, the events which had occurred and which are recorded on the video, and a person, such as Garda O’Neill who, while commenting on the video, was also a witness to the actual events in the car park on the occasion in question. Such a witness is in a position to be cross examined on his evidence, including his commentary, and his evidence may be objected to, as indeed was the case here. This distinction is clearly recognised in DPP v Maguire, supra., in which the Court reviewed a number of authorities on the issues arising. During this trial, Counsel for one of the Applicants objected to a question put to Garda O’Neill in the course of the commentary and the question was then rephrased, without further objection. The same type of evidence, that is to say, of a descriptive nature, characterising what had occurred as a “pitched battle” for example, or in similar terms, was used by other witnesses commenting on the same events as those used in the course of the commentary on the video evidence by Garda O’Neill.
Several other cases were opened to the Court, from the United Kingdom and from Canada, but these cases, as did Maguire, supra, concerned identification evidence from videos, an issue not arsing on this appeal. Although the Court might have some considerable hesitation in accepting that a non attending witness could give commentary evidence of the type complained of here, it is not the case that the trial of the Applicants was prejudiced by permitting the same kind of commentary on the video events as was being offered by other witnesses in describing the same events, and when the commentary was made by a witness who saw the events actually recorded on the video. The Court is not satisfied therefore that the Applicants have made out a case that the admission of such evidence in the trial jeopardised the trial or rendered the trial unfair to the Applicants.
The next ground concerns the Judge’s charge in respect of self defence. Counsel for the Applicants very fairly characterised the learned Judge’s charge on this aspect of the case as being wholly proper up to a certain point. It is argued, however, that in the recharge, the learned trial Judge used a wrong and incorrect exposition of the principles of self defence to be considered by the jury, having regard to what was actually said, which was as follows:
an incorrect standard, that is to say, an objective, as opposed to a subjective, test to the detriment of the Applicants.
On this ground, the Respondent argues that the recharge was without fault. On his argument it is necessary to adjudicate this ground on the basis of the entire of the relevant extract from the recharge. It was clear that a jury would well understand and appreciate what the learned trial Judge was stating, and would not have been confused. Further, the Applicants are not now entitled to invoke this as a ground of appeal, not having made any further requisitions on the recharge.
As to the latter argument, the Court notes that Counsel for the Applicants conceded that there was no requisition on the recharge and accepted that there is indeed a reluctance on the part of this Court to entertain a ground of appeal which has not been raised in the court below. The case law, commencing at least with The People (DPP) v Madden  I.R. 336 expresses clearly the role of this Court on an appeal. The reservation about raising a ground not raised during the trial has more recently been repeated in the case of DPP v Campbell, (unrept’d, 4 March 2005). In DPP v Cronin, (unrept’d, Sup Ct., 3 March 2006). In that case, both in this Court’s earlier judgment in 2003 and in the more recent judgment of the Supreme Court (even if delivered after the hearing of this appeal), the undesirability of such applications was stressed, the jurisprudence does not rule out, definitively, such an application being permitted in very exceptional circumstances. The Court will therefore look at this ground in light of the jurisprudence.
The extract on self defence from the recharge in the trial, in its full context, is the following:
So in an instance where an attack is anticipated the defence of self-defence is not confined to what an accused does spontaneously and simultaneously with the attack; he can go to the question of preparatory anticipation; the law will allow that and you make take that into account. So self-defence can extend to acts done in advance and in anticipation. With regard to this case you can apply that to the circumstances of this case.
In this particular case it has been said on behalf of the accused in closing addresses that this was a pre-emptive strike in that they knew that reinforcements were about to arrive for the other side. There is no evidence that they knew that and as I said, you rely in this case on the evidence and not on speculation. Now whether the surrounding circumstances could lead them to infer that is a matter of course for you, but that is something that you may take into account, whether or not it was reasonable to expect that this would happen.
All the other matters I have mentioned with reference to self-defence apply, that it is a subjective test as to what the accused themselves may or may not have believed but the credibility of the accused can be viewed objectively, and in addition you can take into account, as provided in the Act, whether or not the person had an opportunity to retreat before using force; that can be taken into account in conjunction with other relevant evidence in determining whether the use of force was reasonable, and that, members of the jury is the acid test: was what was done by the accused proportionate and was it reasonable in all the circumstances.”
Having regard to the foregoing, the Court rejects the applications for leave to appeal against conviction on any of the grounds put forward.
There remains the issue of the application for leave to appeal against sentence. Each of the Applicants in the trial, who were found guilty of violent disorder, received sentences of six years, although not all dating from the same date. Essentially the complaint is made that this is an unduly harsh sentence, even allowing for the fact that the maximum sentence is ten years. The two grounds put forward are: (a) a six year sentence is of itself, unduly harsh, and a lesser sentence would be more appropriate, having regard to all the mattes which ought to have been taken into account by the learned trial judge, and (b) a six year sentence is disproportionate and unjustified, having regard to the fact that two co-accused were sentenced to three years, having pleaded guilty to the offence of violent disorder, and the remaining two co-accused, having pleaded guilty to possession of offensive weapons, being sentenced to two years and eighteen months respectively.
It is argued that the learned trial Judge impermissibly took into account, or took undue account of the existence of a feud in Limerick City, to which the Applicants were allegedly connected, and, by thus taking into account such matters, which were extraneous to the charges in respect of which they were found guilty, the Applicants were, in reality, sentenced for alleged offences outside those charged. On behalf of Edward McCarthy, Counsel argued that the learned trial Judge was not entitled to have regard even to the existence of an alleged feud. On the other hand, Counsel for the other Applicants did not go quite that far, arguing rather that the learned trial Judge took undue account of garda evidence relating to the existence of such a feud, and allowed this, wrongly, to influence the length of the sentences actually imposed.
On behalf of the Respondent it is argued that the learned trial Judge was fully entitled to have regard to the fact that the Applicants were found guilty of violent disorder against the background of a long running feud; that the crime of violent disorder is a particularly serious one, and can only be dealt with by way of indictment; that the learned trial Judge had quite properly taken into account the plea of the other parties involved in the events, in sentencing them; and that the sentence was in no way wrong in principle, nor disproportionate having regard to the foregoing, nor were there any real disparities exposed.
On this ground for leave, it is the case that the learned trial Judge mentioned, in the course of his sentences, the existence of a feud in Limerick, and he also mentioned the consequences or the fall out from that feud, which he noted as including serious crimes leading to injuries, even fatal injuries. It is also the case that he mentioned the fact that he was obliged to consider the existence of that feud, although emphasising that he was not, by that fact, indicating that the Applicants were part of that feud, but accepting that the events in issue were in some way related to the feud.
It is not clear from the sentencing comments that the learned trial Judge succeeded entirely in distancing the sentence from the connection with the feud itself. Counsel for Mr. Edward McCarthy correctly argued that the Applicants could not have been sentenced in respect of events for which they were not charged and for which there was no evidence tendered as to their involvement, such as the commencement or the continuing existence of a feud.
Having regard to the foregoing the Court must consider whether, in all the circumstances, the sentences imposed on the Applicants in the present case, were appropriate sentences. A factor which must be included in this exercise are the sentences actually handed down to two of the other parties involved in the same event, and which gave rise to identical charges. The Court is of the view that the charges and the sentences for weapons possession are not relevant to the exercise which it must undertake, the two accused having pleaded guilty to those quite different charges on the seventh day of the trial, even if they arise from the same events.
On a consideration of the issues giving rise to the sentence of the remaining two co-accused, the learned trial Judge, as he was fully entitled to, gave considerable weight to the fact that there was a plea of guilty, although it has to be said that this was tendered at Day 6 of a lengthy trial, when it could not be said that it saved the Court significant time, even if it would have saved some time. In addition, the learned trial Judge properly had regard in the course of his sentence to the fact that violent disorder is an offence only triable on indictment, thereby indicating the seriousness with which the legislature regards this offence. He also, having recited the individual circumstances of each of the accused, took into account their personal circumstances. In so far therefore as the two persons who pleaded guilty to violent disorder are concerned, the learned trial Judge took into account the following matters in sentencing them to three years, namely (a) the fact that they had pleaded guilty, and therefore that they did not subject the prosecution to the hazard or the risk that a jury would bring in a verdict of not guilty; and (b) the plea of guilty was recognised by him as an acknowledgement by them, against the background feud, that they were wrong. The learned trial Judge was fully entitled to have regard to these two matters. He was also fully entitled to have regard to the existence of an ongoing feud. It would be more than unrealistic for a trial Judge to ignore or to have no regard whatsoever for the background or context in which events arose, which in this case according to the evidence, included that feud.
The principles applicable to the sentencing of co-accused, have been considered in some detail in the case of The People (DPP) v Duffy,  2 I.R., in which this Court, in the judgment delivered by Keane C.J., analysed the existing case law and relevant principles, and the Court adopts that decision as containing all the appropriate principles to be applied also in the present case. In particular the Court notes the finding in that case that an appellate court, such as this court, while not ordinarily interfering with the sentence imposed by a trial judge unless it is clearly established that that sentence was wrong in principle, will nevertheless do so if it is evident that the disparity in sentencing between co-accused is not justifiable, citing as appropriate authority for doing so the judgment of this Court in The People (Attorney General) v Poyning  I.R. 402.
Turning to the sentencing of the five Applicants, and applying these principles to the sentences in this case, while the learned trial Judge clearly indicated he had had regard for all of the matters which should be taken into account, there remains a disparity, and a substantial one, between the sentence imposed, even taking into account the above mentioned mitigating factors, on the two co-accused, and the six years imposed in the case of the present Applicants. It is not however clear that the reason for the sentence of six years was that the learned trial Judge had regard to factors beyond those he was entitled to consider. The Court does not accept that he did so. Nor is there any evidence that the learned trial Judge found that these Applicants were more to blame or contributed more to the events which had occurred. It was argued on behalf of the Applicants that in fact they were only reactors to, rather than instigators of, the events leading to the charges. This Court does not accept that the evidence so established, and does not find that the learned trial Judge erred in failing to have regard to the same. It would appear that the learned trial Judge considered both “sides” or “camps” to be equally to blame or equally to have caused the events to occur, and this Court does not consider such a conclusion to be unsupported by the evidence.
However, even allowing for the acceptable reduction in sentence, having regard to the mitigating factors taken into account, in the case of the two co-accused, this Court is nevertheless of the view that the sentence of six years is disproportionately high vis a vis that imposed on the two accused who pleaded guilty and were sentenced at the same time and that that disparity does not appear to have been based on justifiable differentiating factors. In all the circumstances therefore, the Court finds that a sentence in respect of the Applicants who did not plead guilty to the offence, and who therefore did not have that mitigating factor available to them is one of four and a half years. The Court will therefore set aside the sentences imposed and will hear Counsel on any consequential orders appropriate to be made in respect of the individual Applicants.