Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2006/C72.html
Cite as: [2006] IECCA 72, [2007] 2 IR 486

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Judgment Title: D.P.P.-v- John Foley

Neutral Citation: [2006] IECCA 72

Court of Criminal Appeal Record Number: 219/05

Date of Delivery: 01 June 2006

Court: Court of Criminal Appeal

Composition of Court: McCracken J., O'Donovan J., deValera J.

Judgment by: McCracken J.

Status of Judgment: Approved


Judgments by	Result
McCracken J.	Refuse leave to appeal

Outcome: Refuse leave to appeal

- 7 -

COURT OF CRIMINAL APPEAL

Record No. 219/05

McCracken J.
O’Donovan J.
de Valera J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

JOHN FOLEY

APPLICANT

Judgment of the Court delivered by McCracken J. on the 1st day of June 2006

The applicant was convicted before the Cork Circuit Criminal Court of one charge of burglary contrary to section 12(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The charge related to a burglary at Coleman’s shop and garage in Millstreet in Co. Cork on 4th September 2003, and the evidence against the applicant depended on his identification from a CCTV system which was fitted to the shop. It was agreed between the prosecution and the defence that, while there was a video recording, a still photograph taken from it would suffice as evidence.
As soon as the case was open to the jury issue was taken as to the admissibility of evidence of identification from the still picture. It was proposed by the prosecution to call two members of the Gardra Siochana who would identify the applicant from this still picture. A voir dire was held in the course of which Garda Russell acknowledged that he first came to know the applicant through his work and Garda O’Sullivan also said that he got to know the applicant through his work but he would have met him outside of that as well when he was off duty around the town, that he was not a friend but that they would say hallo if they met on the street. After some considerable legal argument the learned trial judge ruled as follows:
“On the basis of what has been argued before me and the evidence I have heard, I will be prepared, on the basis that there may be additional prejudice or there may be prejudice to the accused, to exclude the evidence of Garda Liam Russell on the basis that he is not now stationed in the area, he met him apparently entirely through his work and his evidence may be more prejudicial than probative. However, in relation to the evidence of Garda O’Sullivan, it appears to me that he is stationed in a close area to where the accused had his address, he gave evidence of knowing him in a more social rather than Garda work situation and I think that in reality, his evidence of recognition is probative if it stands up before the jury and that, together with any photograph, accompanied by the due and relevant warnings are sufficient to protect the accused from prejudice, so I propose to allow the State to adduce O’Sullivan’s evidence but not Russell’s.”

Subsequently Garda O’Sullivan gave evidence identifying the applicant from the photograph and when asked how he was able to recognise the applicant he said:-
“I know Mr Foley since 1997, My Lord, I have met him on a number of occasions My Lord, spoke to him on a number of occasions.”

He was then asked where he would have met the applicant and replied:-
“I would have met him, My Lord, if he came into the station, I would have met him on the street, My Lord, I would have met him socially, My Lord, in town when I was off duty. I would have acknowledged him in passing, My Lord, and he would have acknowledged me back.”

The question of identification of an accused from a photograph taken at the scene, where the identification is by a member of the Garda Siochana who was not present at the time of the crime, has been considered in a number of cases. The leading authority undoubtedly is The People (Director of Public Prosecutions) v Maguire [1995] 2 I.R. 286, which was a decision of this court. In that case Barron J. giving the judgment of the court said at page 289:-
“Where stills can be taken from which the persons can be identified by persons who are not at the scene, these may be used to support evidence of identification. Such persons must indicate the opportunity which they have had to make such identification, for example whether as a friend, workmate, acquaintance etc. They should also be permitted to indicate any feature which in their mind identifies the person with the still taken from the video film.

Where a witness who was not at the scene gives evidence of identity based upon the video film is a police officer or some other person in authority, the accused must be protected from obvious prejudice arising from the position of the person giving evidence. In general such person would have gained his knowledge in the course of the execution of his duty as a police officer or person in authority. Such evidence is admissible but clearly it should not be admitted where its prejudicial effect would outweigh its probative value. In any given case the need to determine whether or nor such evidence should be admitted will depend upon all the circumstances of the case. It is not appropriate that this Court seek to lay down guidelines where the question does not come before us directly.”

In the present case the applicant also relies strongly on a decision of this court in The People (Director of Public Prosecutions) v Allen [2003] 4 I.R. 295. In that case a still photograph was taken from a video showing the raider leaving premises where an armed robbery had taken place and in the course of the judgment of this court I said at page 297:-

“There was also a security video running in the premises which apparently filmed the events of the raid, but, as all the raiders were wearing balaclavas, the video itself was of little use in identifying them. However, a still photograph was taken from the video which showed one of the raiders leaving the premises having taken off the balaclava and the prosecution alleged that this identified the accused. This still photograph was shown to the jury, but when the prosecution sought to call evidence from garda officers who could identify the accused as been the person in the photograph, such evidence was objected to on behalf of the accused on the basis that it could be extremely prejudicial, as influencing the jury to believe that the accused was, in the well known phrase, known to the gardai and therefore, by inference, that he had a criminal record. Quite rightly in the view of this court, such evidence was excluded by the trial judge…”

In the view of this court the law is quite clear based on the two cases cited, and also on the several English cases which were considered by the court in D.P.P. v Maguire. Evidence from a video or a still photograph taken from a video is clearly admissible evidence against an accused when used to prove his presence at the scene of a crime. However, as in other types of admissible evidence, it may not be used against an accused if it would unfairly prejudice his right to a fair trial. This involves in every case the balancing of the probative value of the evidence against the possible prejudice to the accused, an exercise which can only be undertaken by examining the particular facts of each case. In D.P.P. v Allen, quite apart from the fact that the passage relied on is obiter, the learned trial judge took the view that it would be unfairly prejudicial to the accused to allow the Garda Officer concerned to give evidence. This he was perfectly entitled to do on consideration of the evidence before him, and this court on the appeal considered that he had been correct in doing so. That does not mean that such evidence should be excluded in every case.
In the present case, the learned trial judge was very careful in weighing up the conflicting elements of probative value and prejudice. He made every effort to avoid unnecessary prejudice against the applicant. He quite rightly held that for two members of the Gardai to give such evidence would be unnecessary prejudicial and he only allowed the evidence from the member who actually lived in the town, and therefore, could present the least prejudicial basis for his identification and his knowledge of the applicant. Furthermore, the prosecution, and indeed Garda O’Sullivan himself, were obviously conscious of possible prejudice and were extremely circumspect in putting before the jury evidence of how Garda O’Sullivan knew the applicant.
Despite this, there was, of course, a danger of prejudice to the applicant in that the jury might still consider that, as he was known to a local Detective Garda, he may well have a criminal record. However, that prejudice must be weighed against the probative value of Garda O’Sullivan’s evidence. Without such evidence it would probably have been impossible to launch a prosecution against the applicant at all. In the view of the court the probative value clearly outweighed the prejudicial value, taking into account the care that was taken by both the learned trial judge and the prosecution to minimise any prejudice which there might have been. The court is quite satisfied that the evidence of Garda O’Sullivan was properly admitted.
The applicant has also brought a motion to adduce additional grounds of appeal relating to the learned trial judge’s charge to the jury in relation to the problems with identification evidence. No requisition was raised at the end of the charge in relation to these matters, nor were they referred to in the original notice of appeal. The notice of motion seeking to add these grounds is dated 25th April 2006, less than two weeks before the hearing of this appeal. The court fully accepts that failure to raise a requisition does not automatically prevent the court from considering a ground of appeal, but when this failure is combined with a failure to include the point in the original notice of appeal, the court must look with disfavour on the application to amend the grounds of appeal. If the court considers that the refusal of an amendment would result in a miscarriage of justice, then, of course, the amendment must be allowed. In the present case if the learned trial judge had given no warning whatever to the jury in relation to identification evidence, then clearly this court would have to consider the matter. However, the learned trial judge told the jury he was making an issue of identification and in the view of the court gave the jury a perfectly adequate general warning as to the dangers of relying on identification evidence.
The court feels that no injustice will be done to the applicant if leave to amend the grounds of appeal is refused, and, in the light of the failure to requisition and the lateness of the application to amend the court refuses leave to amend the grounds of appeal.
Accordingly the court refuses leave to appeal.

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