Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 89

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Neutral Citation: [2008] IECCA 89

COURT OF CRIMINAL APPEAL

178/07

Finnegan J.

Budd J.

Hanna J.

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

.v.

DAVID LARKIN

APPLICANT

Judgment of the Court (ex tempore) delivered on the 16th day of June 2008 by Finnegan J.

The court has had the opportunity of considering, in addition to the written submissions, the transcript and the very detailed oral arguments of Mr O'Dwyer in this matter and finds itself in a position to give judgment.

The applicant in this case was charged with assault contrary to section 3 of the Non-Fatal Offences against the Person Act 1997 assault causing harm. The circumstances of the offence are that on the 23rd February 2001 at approximately 5 a.m. in the morning Mr Foster was assaulted: he was kicked, punched and stabbed, one of the stab wounds being to his chest which caused a lung collapse. He was taken to hospital. On the evening in question, it was the evening of a football match on television, Mr Foster had been at the Firhouse Community Centre with a number of relations and friends. Later in the evening after the match the group left the Community Centre and went to Ahern's Public House and they remained there until

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approximately 1.30 a.m. when they left and went to the home of Mr and Mrs Irwin. Mr Foster remained there until 5 a.m. Shortly after leaving the premises he met a man coming towards him and a short conversation took place in which Mr Foster was asked did he know where Samantha Irwin's house was and he replied "no". There was some further brief conversation and immediately after that he was punched in the head, kicked, knocked to the ground and stabbed. He received a cut above his left eye for which he received twelve stitches and which left a scar. He received stab wounds particularly one to his chest which caused his lung to be punctured.

Mr Foster gave four statements in all to the Gardai but relevant for present purposes essentially is the first statement which he gave. On the same day as the assault he was interviewed by Detective Garda Stack at Tallaght Hospital and he gave an account of the events of the evening. What is important in that account is that he said that he had seen his assailant before and perhaps the effect of the statement is best summarised by the applicant's counsel in the course of the hearing in the Circuit Court:

"Essentially it was he told the events which I have mentioned but that he had seen his assailant before. He did not identify the assailant by name. However the position in relation to that statement according to Detective Garda Stack in evidence was as follows. He said during the course of the statement it was obvious that he, the victim, that he could not continue. We were not able to even read back the statement because, the statement I have taken off him, so it was not until the 2^nd March 200 J that I spoke to him in his house where we read over the statement and made additions to it and he signed it and I signed it as well."

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What happened in the interval between the making of the statement and it being signed, however, was that some friend of Mr Foster had told him that the rumour going about was that it was Mr Larkin who had carried out the assault. Of his own knowledge he was able to say that he had seen his assailant before but he did not put a name to him and he subsequently did put a name to him on the basis of what was reported to him. What he did record very early after the assault and the evidence of Mr Foster was, that he had seen his assailant before. The issue at the trial was the admissibility of the identification evidence. There were two elements in that regard raised on behalf of the applicant. The first element concerned the furnishing of a name by a third party and the second element was the circumstances that surrounded an identification parade.

The applicant here was not arrested until some fifteen months or so after these events due to the Gardai being unable to locate him he having moved from his family home and being abroad for two periods. In the course of his detention, having consulted with a solicitor, he agreed to take part in an identification parade. However on giving him advice to take part his solicitor was not aware that Mr Foster now had a name to go with his original statement that he had seen his assailant on a previous occasion. Had she been aware of this her evidence was that she would have advised against it and quite correctly she said that an identity parade is of little or perhaps no value in a recognition case as opposed to an identification case the former being the position where someone makes an identification having previously seen the person identified as opposed to picking out some one at an identity parade having seen him for the first occasion at the time of the offence.

There was an application to exclude evidence of the identification parade as inadmissible and again an application for a direction at the conclusion of the

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prosecution case on the basis that the evidence of identification was so weak that it ought not be allowed go to the jury. The applications were supported by legal argument and the authority relied on was the R. v Turnbull [1977] Q.B. 22. In that case two matters appear clearly in the head note and, of course, also appear in the body of the judgment. The head note reads as follows:

"Whenever a case against a defendant depends wholly or substantially on the correctness of one or more identifications of the defendant, which the defence alleges to be mistaken, the direction to the jury should include a warning on the special need for caution before convicting the defendant. "

That, of course, is reflected in Irish law and in this case such a warning was indeed given.

The head note goes on however:

"Further, the quality of the identification should be considered and the jury should be directed to examine closely the circumstances in which the identification was made. Where the quality of the identification is good, the jury can safely be left to assess the value of the evidence, but where the quality is poor, the case should be withdrawn from the jury unless there is other evidence capable of supporting the identification."

The second element therefore concerns poor identification evidence and if it is so poor that it cannot safely be left to the jury then that evidence should not be admitted. The circumstances in Turnbull, however, were that a constable got a fleeting view of Mr Turnbull but he had been familiar with him and recognised him.

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In this case it was a matter for the learned trial judge on that application being made to assess the quality of the evidence and determine whether it was admissible. This court has had the opportunity of taking into account the evidence given by Mr Foster and a vigorous cross-examination which he underwent. There were some inconsistencies as can be expected between the answers which he gave but overall he was consistent throughout. He had seen his assailant before and he learned his name from a friend while in hospital. However at the identification parade he picked out the applicant here not on the basis of his name but on the basis of his face which he recognised. The effect of this evidence was characterised by the learned trial judge, and quite correctly characterised in the opinion of this court, when he said that the fact that Mr Foster had been given a name by a third person made not one bit of difference unless in the identification parade the applicant was wearing a label with his name upon it. That essentially is the position here.

With regard to the circumstance that the applicant's solicitor was unaware that Mr Foster had been able to put a name given to him by some one else to the assailant and that this was not known to the applicant's solicitor, the court is satisfied that this indeed occurred but there was no stratagem, ploy or device engaged in by the Gardai in conducting the parade so that it cannot be said that this rendered it unsatisfactory or illegal of itself.

The court is satisfied that evidence of the identification parade was admissible and that it was open to the jury on the evidence to accept Mr Foster's account that he had seen his assailant previously as expanded upon by him giving details, which were supported in evidence by one other witness Samantha Slevin, of the circumstances in which this occurred. There was supporting evidence of those circumstances and it

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was safe to leave the matter to the jury and this court is satisfied the learned trial judge was not in error in refusing to rule the evidence inadmissible.

The application for a direction at the end of the prosecution case relied essentially on the same circumstances as the earlier application in relation to admissibility. However on this application the test is somewhat different and counsel for the applicant correctly pointed out that the test was that in R. v Galbraith [1981] 1 W.L.R.I039. The test is set out in that report in the following terms.

"How then should the 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 vague and tenuous character, for example, because of 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 genuinely 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

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that the defendant is guilty then the judge should allow the matter to be tried by the jury. "

In this case the court has had the opportunity of considering the transcript of the trial. It is satisfied that this case comes within 2(b) of the propositions set out in Galbraith, in other words the strength or weakness of the identification depends on the view to be taken of a witness's reliability, that is Mr Foster's reliability, but supported by Ms Slevin in one particular. The reliability of the identification is a matter for the jury and the learned trial judge was quite correct in allowing the matter to go to the jury.

The applicant in this case went into evidence and evidence was given on his behalf. The jury having had that evidence before them found him guilty of the charge.

The court is satisfied that both on the application to rule evidence of identification inadmissible and on the application for a direction at the end if the prosecution case the learned trial judge acted properly and in accordance with the law. In these circumstances the court refuses leave to the applicant to appeal.

The offence with which the applicant here stands convicted is one at the very limit of seriousness of a charge under section 3 of the Non-Fatal Offences Against the Person Act 1997. It involved an unprovoked assault on a young man who it would appear had been out for an evening and had drink taken and was presumably less able to defend himself as a result. It involved the use of a knife and the infliction of two stab wounds one of which collapsed the victim's lung. He was struck and kicked to the head. He suffered serious psychological sequela. The maximum sentence for the

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offence in question is one of five years. This offence being as described and at the very limit of seriousness of that offence deserves that sentence.

The court, however, being so satisfied, also has to look at the offender in this case. There is very little that can be said to recommend him. He has previous convictions under the Misuse of Drugs Act 1977 and a conviction for possession of house breaking implements. The court can find little to recommend him for leniency in the circumstances disclosed. One matter that the court has considered is that he was in a relationship and had formed a family unit which has six children three of whom are his own children. The court had a letter from his partner and accepts without any difficulty the added stresses and difficulties which his absence in prison will cause to her. Because of his conduct she is left to look after three of his children which are of course also her children. There was one matter which counsel for the applicant referred us to and it was a comment by the learned trial judge which could have been taken as suggesting that the offence was far more serious than the one with which he was charged leaving open a possible view that he was sentencing the applicant for an offence more serious than that with which he was charged and which, of course, he had not committed. The court is satisfied that the learned trial judge in this case made no such assessment of the situation when he sentenced the applicant for the offence which he committed. However the court is anxious that such a possibility or suspicion should not arise and it was in a sense an error on the part of the trial judge to allow that suspicion to emerge from the words which he uttered although this court is satisfied that that was not what he did and not what he intended to do. In those circumstances it seems that the court can revisit the matter and having done so and taking into account the letter received from the applicant's partner it is proposed to take this approach. The sentence of five years imposed was the correct

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sentence and the court imposes that sentence. It will, however, suspend the last nine months of that sentence taking into account the personal circumstances of the applicant, the fact that he has three children which are now left in the sole care of his partner who has herself three children of her own to look after. The court suspends nine months of the term on condition that he enter into a bond to keep the peace and be of good behaviour for a period of two years from his release from prison. If he should be convicted of any offence within that period of course he would then have to serve that period of nine months in addition to any other sentence imposed upon him for the subsequent offence which he commits.

In those circumstances we grant him leave to appeal his sentence and treat the hearing of the application for leave as the hearing of the appeal and substitute the order which I have mentioned for the order of the learned trial judge.

DPP v Larkin