Irish Court of Criminal Appeal

You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Adriano Martins Costa & Jose Claudio Batista [2008] IECCA 1 (21 January 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/C1.html
Cite as: [2008] IECCA 1

[New search] [Help]

Judgment Title: D.P.P.-v- Adriano Martins Costa & Jose Claudio Batista

Neutral Citation: [2008] IECCA 1

Court of Criminal Appeal Record Number: 169/06 & 176/06

Date of Delivery: 21 January 2008

Court: Court of Criminal Appeal

Composition of Court: Kearns J., Hedigan J., Birmingham J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result
Kearns J.	Refuse leave to appeal against conviction

Outcome: Refuse leave to appeal against conv.

THE COURT OF CRIMINAL APPEAL

Kearns J.
Hedigan J.
Birmingham J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

ADRIANO MARTINS COSTA & JOSE CLAUDIO BATISTA

APPLICANTS/APPELLANTS

JUDGMENT of the Court delivered on the 21st day of January 2008 by Kearns J.

On 3rd August, 2006, the applicants were convicted of the murder on 4th June, 2005 of one Paulo Siqueira at Ruanbeg Close, Kildare following a trial in the Central Criminal Court which lasted some 26 days. Both the victim and the applicants were Brazilians, as was a further co-accused, Alessandro De Almeida Mata, who was acquitted of the same charge. Following conviction, the applicants were sentenced to life imprisonment.
It was common case that all three accused had been drinking with the deceased in a flat above a crèche at No. 1A, Ruanbeg Close in Kildare and that a verbal altercation broke out in the flat which brought the deceased and the three accused out to the area in front of No. 1A shortly before 3 am. They were there seen by the main prosecution witness, Mr. Landry Zanga. Mr. Zanga was observing events from his own bedroom window at No. 16 Ruanbeg Close. He recognised the participants in the altercation, identifying Mr. Batista in court as the “man in the middle” of the three co-accused as they sat in court, the man “who lives in the crèche”. He further identified Mr. Batista by reference to a silver Nissan motorcar which he habitually drove in the estate. Andressa Batista, the applicant’s wife, confirmed in evidence that her husband lived with her over the crèche. Under cross-examination, Mr. Zanga was invited to confirm his belief that Mr. Costa was “the brother of the man who lived above the crèche”.
He described how he saw Mr. Batista, together with Mr. Costa, holding the deceased by the collar of his jumper. He saw the deceased escape from their grip, go to his car and open the door. He was chased from there by Mr. Batista who caught the deceased by the collar of his jumper and the deceased also grabbed Batista as he was pushed backwards and fell over a metal fence in the hedge running along beside No. 1A Ruanbeg Close. Mr. Zanga saw Mr. Costa punching the deceased two or three times in the face before the deceased managed to get back on his feet and move away into a different area of Ruanbeg Close. He also gave evidence that throughout this activity the co-accused De Mata was merely standing back and observing events.
Mr. Zanga described how Mr. Costa followed the deceased out of his line of vision. He then saw the man later identified as Mr. Batista pull a tree support stake from the ground beside a tree (the location of which he pointed out in a photograph) and chase after the deceased with it out of his line of vision. He described how over the following minutes he heard a number of thuds and screams before he observed both Batista and Costa running back into his line of vision, getting into a car and driving off. He observed the co-accused, De Mata, hiding at the door leading to the back garden when the gardaí arrived.
A number of other witnesses confirmed that the man who took the tree support stake from the ground went over to the deceased and struck him violently about the head and body with the stake. This evidence was given by eye witnesses Brian Walsh and Teresa Cullen who saw one man use the stake to strike the man on the ground and who also saw the other man run in and kick the man on the ground. Another resident, Mndaugas Ambrasas, saw two men kick another man who was lying on the ground. He also saw one of the two men use a stake to beat the man on the ground. When he had finished, the second man picked up the stake and beat the deceased with it. Similar evidence was given by Neringa Vaskeilaite, a Lithuanian national, who observed the latter stages of the assault from No. 56 Ruanbeg Close.
The evidence of Dr. Michael Curtis, State Pathologist, was to the effect that the deceased sustained over 50 injuries, including 5 severe head injuries all of which, in his opinion, were caused by a stick or heavy blunt object rather than by kicks or punches. None of the witnesses suggested that Mr. De Mata was involved in beating the deceased with the stake. He appears to have been some distance from those particular events when they were taking place.
During the course of his memorandum of interview by the gardaí, Mr. Costa accepted that he was present during the assault at Ruanbeg Place and accepted that he had punched the deceased. Neither he nor Mr. Batista gave evidence at the trial. However, Mr. De Mata did give evidence.
He gave evidence that he resided at the time at 1A, Ruanbeg Place in Kildare with Mr. Batista and his wife. He confirmed that he and both applicants were drinking together during the evening prior to the assault. He fell asleep and was woken by an argument taking place outside. It involved the deceased and the two applicants. He stated that he tried to separate the parties but a fight developed. He observed Mr. Batista beating the deceased with a stake which he had taken from the ground near a tree. He beat him from “above to below”. He was cross-examined by reference to a prior account given by him to the gardaí in which he claimed that both applicants were beating the deceased with the stake but stated in evidence that he was nervous and that his recollection may have been faulty. He denied any suggestion that he was acting as a lookout during the assault. He denied any suggestion that he had changed his evidence in relation to the involvement of Mr. Costa because he was afraid of him or of possible repercussions for his family in Brazil.
Evidence was also given by Mr. Wagner Martins, a half - brother of Mr. Costa, who was simply tendered as a witness by the prosecution and cross-examined. He gave evidence of meeting both applicants at his house after the assault, that he saw blood on Mr. Batista’s clothing and he confirmed that both applicants had changed their shirts. He could not remember when asked whether or not they placed their discarded clothing in the washing machine in his house. He confirmed however that when both applicants arrived at his apartment at about 5am that morning, Mr. Batista volunteered that he had had a fight with the deceased and that he had killed the deceased when he struck him on the head with a stake. Mr. Martins’ wife gave evidence that she wasn’t in the room when this admission was made, but that she had heard the words being spoken.
Counsel for the applicants made closing speeches to the jury on 25th July, 2006. On that date the foreman of the jury suffered a bereavement whereupon it was agreed that the trial would be adjourned until the following Monday, 31st July, 2006. The adjournment took place on the understanding that the trial judge would give a comprehensive account of the defence case when charging the jury on 2nd August, 2006.

APPEAL OF ADRIANO COSTA
On behalf of this applicant, Mr. Aylmer, Senior Counsel, submitted that the trial judge should have acceded to an application for a direction, firstly on the basis that there was no sufficient evidence at the close of the prosecution case (Mr De Mata only later gave evidence as part of his defence) to identify his client as being involved in the secondary assault which took place out of the view of Mr. Zanga and, secondly, that there was no adequate evidence of his participation in any assault which involved the use of a wooden stake. Mr. Aylmer submitted that Mr. Costa’s mere presence in a general way on the scene on the night in question fell well short of what was required to be proved by the prosecution. He further submitted that the trial judge failed to direct the jury adequately on the meaning of “joint enterprise” as identified in R. v. Uddin [1998] 3 WLR 1000. That case established that if the evidence shows that there was a concerted attack by two or three individuals present together and it is proved that the victim died as a result of a wound inflicted by one of the two participants who is identified, but fails to establish the identity of the second participant in the concerted attack from the other two individuals present, then the participant who inflicted the blow will be guilty of murder, but neither of the other two individuals present may be convicted of murder or manslaughter.
In addition Mr. Aylmer argued that the finding of the jury was perverse and contrary to the evidence and that the evidence of Mr. Zanga had been undermined by the trial judge in such a way as to prejudice his client. The trial judge equally undermined the evidence of Mr. Martins in a way which prejudiced his client. In his efforts to be fair to Mr Battista the judge had been unfair to Mr. Costa by casting doubt on evidence which was exculpatory of his client. Furthermore, the judge had failed to adequately convey to the jury that any statements made by any particular accused were not corroborative of the guilt of any co-accused. In the instant case, the jury could well have concluded that Mr. De Mata’s original statement (in which he apportioned culpability to both applicants) was corroborative of the case against his client despite the evidence actually given by Mr. De Mata.
In response, Mr. Denis Vaughan Buckley, Senior Counsel for the respondent, argued that the trial judge, in considering the application for direction, was obliged to take the prosecution case at its highest. Insofar as Mr. Costa’s involvement was concerned, Mr. Buckley submitted there was an abundance of evidence, not merely from Mr. Zanga but from various other witnesses who saw two people strike the deceased with the stake. Specifically, there was evidence fully implicating a second assailant, who by inference had to be Mr. Costa, given by four witnesses, including Mr. Walsh, Ms. Cullen, Mndaugas Ambrasas and Neringa Vaskeilaite. Furthermore, Mr. Costa in the course of interview by the gardaí had admitted being present at the time of the fatal assault, that he burned his clothes in the aftermath of the event and furthermore admitted striking the deceased with his closed fist. No complaint could be maintained in respect of the Judge’s charge on joint enterprise, notably in circumstances where no requisition had been raised to that effect. No requisition was raised in that the trial judge failed to put Mr. Costa’s defence adequately, despite the break in the trial, nor was there any requisition made to suggest that the judge’s charge had been in any way unfair to Mr. Costa.

APPEAL OF JOSE CLAUDIO BATISTA
In making submissions on Mr. Batista’s behalf, Mr. O’ Lideadha, Senior Counsel, argued that there had been an impermissible dock identification of his client in this case and that this was contrary to the clear principles laid down in The People (D.P.P.) v. Cooney [1997] 3 I.R. 205.
At the close of business on day two of the trial the prosecutor indicated that the next witness would be Mr. Landry Zanga. On that occasion Mr. Aylmer, counsel for Mr Costa, informed the trial judge in the absence of the jury that the prosecutor would facilitate the co-accused in clarifying a matter with the witness. What occurred the following day was that Mr. Zanga was invited by counsel for the two co-accused to view the three accused in the dock. He was then asked by counsel for each of the co-accused to identify their clients. It was argued that this form of identification by way of elimination at the behest of counsel for the co-accused was unfair in that while the witness claimed to know the applicant “as the man who lived in the crèche” the witness’s only previous identification of him was when the applicant was seated in the dock flanked by his co-accused. The applicant had at all times offered to take place in an identification parade, but no such parade had been held. The identification of the applicant as the “man who lived in the crèche” by Mr. Zanga occurred in circumstances where both the applicant and his co-accused, De Mata, lived above the crèche. He was identified by Mr. Zanga as the person procuring the stick. Counsel for Costa invited Mr. Zanga to identify his client as the “brother of the man who lived above the crèche”, whereas counsel for De Mata invited Mr. Zanga to identify his client as the fourth man whom he described as the “onlooker”, thus leaving the applicant as the man with the stick and thus completing the dock identification by way of elimination. While the learned trial judge did warn the jury about the dangers inherent in a dock identification, the prerequisites referred to in The People (D.P.P.) v Cooney were not adequately explained to the jury.
Mr. O’ Lideadha also argued that there should have been separate trials in this case, particularly in the aftermath of the dock identification, given that statements of a co-accused named his client as the assailant of the deceased. An application for same had been made to that effect during the trial but refused by the trial judge.
No accomplice warning had been given in respect of Mr. Martins’ evidence. Mr. O’ Lideadha accepted however that while there had been no corroboration of Mr. Martins’ evidence, his client had been represented by different counsel at trial and that counsel had expressed himself at the time to be quite satisfied with the warning given to the jury as to how they should treat Mr. Martins’ evidence.
Reliance had also been placed by the prosecution on an interview with his client in circumstances where the interview in question had not been the subject of a video recording. The learned trial judge had admitted this interview wherein his client, while denying wrongdoing, had told certain untruths, including the assertion that he had not seen the deceased for the previous two weeks and that he had stayed in his home place on the night in question and driven his car to work. The learned trial judge had told the jury they could see these untruths as corroborative of his client’s guilt. It was argued that this material should have been excluded as it was not recorded in a manner approved by law.

In reply, Mr. Vaughan Buckley argued that the present case was distinguishable from The People (D.P.P.) v. Cooney, given that this was a “recognition” case. Mr. Zanga was not seeing Mr Battista for the first time, nor had he only seen him on the night of the assault. At the time Mr. Zanga identified Mr. Batista, he had already been identified as the man living in or over the crèche. He was also known to Mr. Zanga as the man who drove the silver Nissan motorcar in the estate. The alleged dock identification was not made as a result of any questions asked by the prosecution. Furthermore, the learned trial judge in his summing up repeatedly warned the jury about the evidence of Mr. Zanga. He stressed to the jury that Mr. Zanga was the sole identifying witness and at one point went so far as to say “there are serious frailties in his visual identification and accordingly serious question marks over his credibility or reliability as a witness”. Furthermore, following a requisition made by the prosecution, the learned trial judge reiterated the warning laid down by the Supreme Court in The People (A.G.) v. Casey (No. 2) [1963] I.R. 33 and applied it to the evidence of Mr. Zanga.
Insofar as the statements of co-accused were concerned, the trial judge had gone out of his way to remind the jury that any interview was admissible only in respect of its maker and not any other person. The trial judge took the unusual step of intervening with a warning to the jury before the prosecution put on record the notes of the first interview with Mr. De Mata.
No application for a separate trial was made at the commencement of the trial. Had such an application been made, the learned trial judge would have been correct in law in refusing to make such an order given that each accused in consecutive trials could then blame the other. Applications for a separate trial were made by counsel for Mr. Batista on the 3rd and 12th days of the trial. The learned trial judge’s ruling on each occasion was a proper exercise of judicial discretion in accordance with principles enunciated in the Attorney General v. Joyce [1929] I.R. 526 and The People (A.G.) v. Murtagh [1966] I.R. 361.
Insofar as Mr. Martins’ evidence was concerned, Mr. Vaughan Buckley pointed out that during the course of requisitions counsel for Mr. Batista expressly stated “I thought your lordship dealt very fairly from my client’s point of view with the evidence of Wagner Martins”, so there was no substance whatsoever to this complaint.
In relation to the first interview with Mr. Batista, Mr. Vaughan Buckley pointed out that there was no requirement in law that a voluntary interview be video recorded. The first interview was taken when Mr. Batista was not under arrest. It was translated by the interpreter, Mr. Fernando, and was admissible as evidence at the trial. The first interview with Mr. Batista contained denials of involvement in the murder. Any suggestion that an interpreter had not been present for this interview was not put to any of the preceding witnesses. His second interview, taken after Mr. Batista had been arrested was video recorded in the presence of an interpreter.

DECISION
The question as to whether a direction should have been granted at the conclusion of the prosecution case against the applicants largely revolves around the question as to whether or not there was sufficient evidence to allow a case of joint enterprise go to the jury. In R. v. Uddin [1998] 3 WLR 1000, Beldam J. stated as follows (at p. 1008 et seq.):-

“(i) Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted with intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder …

(v) If in the course of the concerted attack, a weapon is produced by one of the participants and the other, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound and

(vi) In a case in which, after a concerted attack, it is proved that the victim died as a result of a wound with a lethal weapon, e.g. a stab wound, but the evidence does not establish which of the participants used the weapon, then if its use was foreseen by the participants in the attack, they will all be guilty of murder notwithstanding that the particular participant who administered the fatal blow cannot be identified: see Reg v Powell; Reg. v English [1997] 3 WLR 959. If, however, the circumstances do not show that the participants foresaw the use of a weapon of this type, none of them will be guilty of murder though they may individually have committed offences in the course of the attack.”

Essentially Mr. Aylmer rests his application on the failure to specifically identify Mr. Costa as being the second person involved with Mr. Batista in the fatal stages of the assault. However, Mr. Costa in his memorandum of interview accepted that he was present on the road and accepted that he punched the deceased Mr. Siqueira. The court is quite satisfied that there was ample evidence at the conclusion of the prosecution case to show that Mr. Batista had the wooden stake and that Mr. Costa was both aware of that fact and continued his involvement in the assault in that state of knowledge. This conclusion is derived in the main from the eye witness evidence of Mr. Zanga who saw one man take the stake from the ground and a second man run up the road to join him, and by the evidence of Brian Walsh and Teresa Cullen who saw one man use the stake to strike the man on the ground and who also saw another man run in and kick the man on the ground. There was also evidence from Mr. Ambrasas and Ms. Vaskeilkaite that the second person, who by inference was Mr. Costa, given that Mr. De Mata was removed from the secondary stages of the assault, took the stick and also beat the deceased with it.
The court is thus satisfied that the learned trial judge correctly refused the application for direction and in so doing correctly applied the test as outlined in R. v. Galbraith [1981] 1 W.L.R. 1039 as adopted in this jurisdiction in D.P.P. v. Barnwell [Unreported, Central Criminal Court, 24th January, 1997] and D.P.P. v. M. [Unreported, Court of Criminal Appeal, 15th February, 2001] and The People (D.P.P.) v. Higginbotham [Unreported, Court of Criminal Appeal, 17th November, 2000].
The court is also satisfied that the learned trial judge correctly charged the jury on the issue of joint enterprise in accordance with the principles cited above from R. v. Uddin [1990] 3 W.L.R. 1000. The jury was repeatedly warned by the trial judge of the supposed frailties in the evidence of those witnesses whose evidence implicated the applicants.
In particular the trial judge bent over backwards to point out the supposed frailties in the evidence of Mr. Zanga and the suggested unreliability of Mr. Martins as a witness, given that he was merely tendered by the prosecution and not called directly as a witness for them. The emphasis placed by the trial judge on these aspects of the case can only be seen as having been favourable to the interests of both applicants.
Any suggestion that the jury verdict was contrary to the weight of the evidence or perverse is rejected. When the case went to the jury, the jury had the benefit of the evidence of Mr. De Mata in respect of his non -involvement which by inference could only be taken by the jury as meaning that only the applicants were present when the fatal blows were struck with the wooden stake. Furthermore, the charge of the learned trial judge in respect of joint enterprise was not the subject of any requisition by or on behalf of Mr. Costa.
The validity of the identification of both applicants by Mr. Zanga during the course of his evidence is at the heart of the appeal brought by Mr. Batista. Heavy reliance has been placed by his counsel on the decision of the Supreme Court in The People (D.P.P.) v. Cooney [1997] 3 I.R. 205. and to the following passage from the judgment of the court delivered by Keane J. where he stated (at p. 212):-

“Our criminal law has for a long time recognised the so called ‘dock identification’ are undesirable and unsatisfactory. The reason is obvious: save in what are called ‘recognition’ cases (where the identifying witness knew the suspect before seeing him or her commit the alleged offence), the identification of the accused for the first time when he or she is sitting in the place normally reserved for the accused and usually flanked by prison officers is of limited probative value. For that reason, in cases where the identification of the accused is likely to be an issue, the appropriate procedure is to hold an identification parade or, if that is impracticable, to afford the identification witness some other opportunity of identifying the accused. It may, of course, not be possible to hold an identification parade or any other form of identification procedure, because of the refusal of the suspect to cooperate. In such cases, as the authorities cited to the Court make clear, the trial judge, in the exercise of his or her discretion, may admit evidence of an identification in court of the accused, but must specifically warn the jury as to the dangers involved in acting on such evidence.”

Those warnings, as indicated by Finlay C.J. in The People (D.P.P.) v. McDermott [1991] 1 I.R. 359, should include warnings where no identification parade is held as to the difference in opportunity, control and credibility between an informal identification and a controlled identification parade, even if the former is organised so as to take place amidst a great number of people.
However, despite counsel’s strong protestations to the contrary, this was clearly a recognition type case rather than a situation where Mr. Zanga was attempting an identification for the first time since the event whilst in the witness box. Counsel for Mr. Batista at trial accepted that the prosecution had not sought to lead evidence of a dock identification, although counsel on behalf of the other accused clearly questioned Mr. Zanga in a particular way to establish their clients were not responsible for pulling up the stake and bringing it to the assault. Rather unusually in this case, counsel for all accused were given an opportunity to speak with Mr. Zanga at the end of the second day of the trial in the absence of the judge and jury. They were thus on notice of the answers he would give to their individual questions on identification. Nonetheless, no objection to this proposed course of action was taken at the time, nor was any application made to sever the indictment prior either to the examination- in- chief of Mr. Zanga or the cross-examination of him by counsel for Mr. Costa and Mr. De Mata. Instead counsel for Mr. Batista sought leave to cross-examine out of turn at the end of the other cross-examinations and only then made his application for separate trials.
While it has to be said that the form of identification procedure adopted in this case was not ideal, the court is satisfied that it does not raise any serious doubt as to the correctness of the identification, notably when that evidence is taken in conjunction with all the other prosecution evidence. It did however give rise on the particular facts to a requirement for a particularly strong warning from the trial judge about the reliability of the identification and the requirement for corroboration in the case of any witness who might be seen as an accomplice on the night of the assault. There was also a requirement to ensure that an admission by one co-accused could not be relied upon by the jury as evidence against another accused.
The court is satisfied that the learned trial judge was zealous in pursuing these objectives. Indeed, he went so far as to give a corroboration warning to the jury in respect of the identification evidence given by Mr. Zanga. There was no legal requirement to give such a warning and it forms no part of the principles enunciated in The People (A.G.) v. Casey (No. 2) [1963] I.R. 33. and, as already noted, the learned trial judge repeatedly warned the jury that any admissions made by an accused were to be treated by them exclusively as evidence against that particular accused and not as evidence against any co-accused. While he failed to give a specific warning in relation to any requirement for corroboration in respect of the evidence of Mr. Martins, counsel for Mr. Batista accepted that the multiple warnings given by the trial judge in respect of that witness’s evidence were adequate to protect his client’s interests.
While an eloquent plea was made during the course of this appeal to the effect that separate trials should have been directed following the identification by Mr. Zanga, the court is quite satisfied that the learned trial judge exercised his discretion in that regard in a proper and appropriate manner. As was noted by Kenny J. in The People (A.G.) v. Murtagh [1966] I.R. 361 at p. 363 of his judgment:-

“When two or more accused are charged in connection with one transaction, the interests of justice may require that they should be tried together even if a statement made by one of them incriminates another of them. When two or more persons are charged in connection with a single transaction, it is possible for each of the accused to cast the entire blame for the transaction on the other if they are tried separately and this may result in the acquittal of both.”

This commonsense statement underlines a basic consideration which any court must bear in mind when considering whether the trial judge correctly exercised his discretion to refuse such an application. In the Court’s view, the trial judge did not err in refusing the application for separate trials. In refusing to so direct, he made clear he would warn the jury about various infirmities in the prosecution case and this he later did to an almost exorbitant degree.
The court is not satisfied that any other complaints raised in this appeal affect the safety of the conviction in any way. The learned trial judge was perfectly entitled to admit the first interview with Mr. Batista, given that he was not under arrest at the time of the interview there was thus no obligation in law to video record the interview in question. While it has been suggested that the learned trial judge failed to put the defence case adequately to the jury in circumstances where there was an interruption of eight days towards the end of the trial, the court notes that no requisition to this effect was made and the court is in any event satisfied that this complaint is without substance. Equally complaints about the role of interpreters and translators do not amount to more than matters of inconvenience and delay experienced during the course of the trial itself: they do not in any way go to the safety or reliability of the conviction.
The court will therefore dismiss both appeals and affirm the conviction herein.