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Cite as: [2009] IECCA 19

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Judgment Title: DPP -v- Conor Gamble

Neutral Citation: [2009] IECCA 19

Court of Criminal Appeal Record Number: 108/03

Date of Delivery: 09 March 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Murphy J., McKechnie J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Application Refused

Outcome: Application Refused

COURT OF CRIMINAL APPEAL

2003 No. 108

Finnegan J.
Murphy J.
McKechnie J.

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

RESPONDENT

.v.

CONOR GAMBLE

APPLICANT

Judgment of the Court delivered on 6th day of March 2009 by Finnegan J.

On the 15th July 1999 the applicant was convicted of an offence of criminal damage and sentenced to three years imprisonment from the 15th July 1999 and which term of imprisonment has long since been served. On the 21st October 2003 the court enlarged the time within which to apply for leave to appeal against conviction and sentence that conviction having been on the 14th July 1999. Notice of application for leave to appeal against sentence had been filed in the office of this court on the 13th August 1999 and a notice of abandonment of same was filed on the 2nd August 2000. Before the court today is an application for leave to adduce evidence of new or newly discovered facts and the application for leave to appeal against conviction.

The offence with which the applicant was charged was an offence of criminal damage contrary to section 2(1) of the Criminal Damage Act 1991. Particulars of the offence are that on the 12th October 1996 at St. Johnston, Co. Donegal, he damaged three mushroom tunnels to the value of Ir. £8,402.

Pursuant to the enlargement of time a notice of appeal was filed containing the following grounds:-_

“1. The appellant’s conviction on Count 2 of the Bill of Indictment (Record No. DL0036/99) is unsafe and contrary to the weight and burden of the evidence and should be set aside.

2. The learned trial judge erred in law in failing to allow the contents of the statement of Gerard Peoples to be open to the jury.

3. Such further or other grounds as may be become apparent from a diligent perusal of the transcripts of the appellant’s trial.

4. The appellant has now discovered from enquiries that he has carried out that serious allegations have been made against Sergeant John White and against Garda Patrick Mulligan relating to their activities during the years prior to and including 1996 to 1999. While the applicant would be anxious to learn the truth or otherwise of these allegations, he now submits that had this material been brought to the attention of his legal team at or before July 1999 it could well have produced a different result. Such material would have permitted his defence counsel to have put in issue before the jury the character of the principal State witnesses in a manner which could have raised legitimate doubts in their minds about some or all of the evidence against the appellant herein. While the jury, if apprised of the said new, or newly discovered facts and material, might have reached the same conclusion and proceeded to a conviction, the appellant now argues that had those facts been put to the jury at his trial in July 1999 the court could not be satisfied that they would have no impact and that the appellant may well have been acquitted. These facts have only become available in spring of 2003.”

The motion grounding the application for enlargement of time to appeal and the grounding affidavits in support of the same are both headed:-

“In the Matter of Section 3 and Section 9 of the Criminal Procedure Act 1993”.

In addition to an enlargement of time other reliefs were sought and in particular:-

“(ii) An order pursuant to section 3 granting the applicant leave to adduce additional evidence of new, or newly discovered facts.

(iii) Such directions as the court may give pursuant to section 3(3) of the Act.

(iv) An order quashing the conviction on Count 2 of the said Bill of Indictment.”

As the applicant had not had his conviction quashed by the Court of Criminal Appeal he could not avail of section 9 of the Act of 1993. Accordingly the matter comes before this court firstly by way of an application for leave to adduce new or additional evidence and secondly an application for leave to appeal against conviction.

The application for leave to adduce new evidence
The applicant was charged with two offences as follows:-

Count 1: That he did on the 10th March 1995 damage a polythene mushroom tunnel to the value of Ir.£550 the property of Leonard French contrary to section 2 of the Criminal Damage Act 1991.

Count 2: That he did on the 12th October 1996 damage three polythene mushroom tunnels to the value of Ir.£8,400 the property of Leonard French contrary to section 2 of the Criminal Damage Act 1991.

To the first count the applicant pleaded guilty and to the second count not guilty. The trial proceeded on the second count and he was found guilty and that conviction is the subject matter of this application for leave to appeal against conviction.

Leonard French gave evidence that he owned three mushroom tunnels which were damaged in the early morning of the 12th October 1996. Both sides of each tunnel were slashed. He gave evidence of the amount of damage. He gave evidence of a dispute which he had with Trevor Peoples with members of whose family the applicant is friendly.

Clayton Duncan gave evidence on a Friday night in October 1996 he attended a disco in Raphoe until 2 a.m. of the following morning. At 3 a.m. he was with the applicant and Trevor Peoples. He drove them and Michael Lynch to Mr French’s mushroom tunnels. The applicant and Trevor Peoples got out of the car and were away for a few minutes and then returned to the car and he drove them home. It was not the night of the applicant’s birthday.

Michael Lynch gave evidence. He did not think the occasion referred to by the previous witness was in October 1996 as that was the applicant’s birthday. While unsure of the date he described the incident at Mr French’s mushroom tunnels in identical terms to Mr Duncan.

The next witness was Detective Sergeant John White. He interviewed the applicant at Lifford Garda Station on the 21st March 1997. He was accompanied by Garda Patrick Mulligan. He cautioned the applicant. At first the applicant denied having anything to do with the offence. The applicant later made an inculpatory statement which he signed. In the statement he admitted the offence of 10th March 1995. In relation to the offence of October 1996 he gave the following account:-

“In October last year I went down to St. Johnston. I met Clayton Duncan…and Trevor Peoples. We went to a dance in Raphoe in a wee grey Fiesta XR2 86 DL registration. After the disco we went for a drive around the road to Carrigans, St. Johnston, on to the Letterkenny Road. We turned right down to the mushroom huts after coming by The White Cross. We stopped the car on the main road near the mushroom huts. The four of us were chatting about damaging the mushroom huts. We had talked about it before that and we had all agreed to cut the mushroom huts. Trevor Peoples and myself got out of the car and we walked down to the huts. Trevor slashed the mushroom huts in a couple of big slashes. I was standing about four feet away from Trevor. We were not drunk at the time. Trevor had the knife. Trevor put the knife in his pocket.”

The applicant was arrested and charged. In response to the first charge he admitted the same. In response to the second charge he said:-

“It will all come out in the end who done it, believe me”

.

In cross-examination Sergeant White was referred to a statement given by the applicant to Superintendent Gallagher on the 19th March 1998, his original statement having been made on the 21st March 1997. In the statement of 19th March 1998 in relation to his statement of the 21st March 1997 the applicant said:-

“That statement is lies. I made this statement under pressure from Sergeant White and a Garda with a moustache from Raphoe. I had nothing to do with it. That was the night of my birthday in 1996.”

He went on to give an account of his movements on that night. Having read the full statement at the request of the applicant’s counsel, Sergeant White was asked:-

“That’s the statement he made to Superintendent Gallagher?”

He replied:-

“Yes, My Lord. It is totally untrue, the section about any bullying in Lifford Station. There was no bullying, My Lord.”

Garda Mulligan who was present at the interview on the 21st March 1997 gave evidence. In direct examination he was asked the following question:

Q. It was put to Sergeant White that there was an element of bullying going on?

A. No, My Lord, there was not.

In cross-examination the following exchange took place:-

Q. Yes, but I mean, effectively, I don’t want to put it impolitely, he was being ballyragged about it.

A. Ballyragged?

Q. Yes. Yourself and Sergeant White were not going to give up until you got some sort of statement from him.

A. You will have to keep talking to a person.

Q. You will have to keep questioning him?

A. You have to question him.

Sergeant John Conaty gave evidence of arrest. In cross-examination he said that Gerard Peoples had called to Lifford Garda Station on 19th September 1997. He made a statement that he together with two others whom he named, and not the applicant, had committed the damage. Gerard Peoples made a formal statement to Superintendent Gallagher on the 19th March 1998 in which he admitted causing the damage on the 12th October 1996 with the other two named individuals.

The foregoing passages from the evidence of Sergeant White and Garda Mulligan together with the applicant’s own statement to Superintendent Gallagher which was read in evidence are the only references to any improper means being employed to obtain the statement of admission. There was no direct challenge to the admissibility of the applicant’s statement and in particular a voir dire was not sought as to the admissibility of the same. No submission was made in the course of the hearing that the statement was inadmissible. By the date of trial the applicant was aware that Gerard Peoples had signed written confessions to the offence, was aware of the other persons alleged by Gerard Peoples to have been involved in the commission of the offence and had himself given to Superintendent Gallagher a statement alleging that his inculpatory statement had been obtained by improper means. He had informed his solicitor that Gerard Peoples had admitted the offence and had named the others involved. Notwithstanding this, the admissibility of his own inculpatory statement was not pursued at the trial other than as outlined above and it must be assumed that this was a tactical decision.

The remaining prosecution witnesses are not relevant on this application.

The applicant did not give evidence. The evidence led for the applicant consisted of that of his mother (Mrs Margaret Gamble) and the evidence of Simon McNulty. Mrs Gamble’s evidence was that the applicant’s birthday was the 12th October. On the 11th October 1996 the applicant had been in her house with a number of friends until 11 o’clock having some drinks. They left to go to Derry. In cross-examination she was asked if the applicant had told her that he was bullied by Sergeant White and she replied that he had. Simon McNulty gave evidence of being in the applicant’s house on the 11th October and of going into Derry at some time after 10 o’clock. At 3 a.m. on the 12th October they separated but met again at Lifford and were together until 4 o’clock that morning.

The transcript does not record the closing address of the applicant’s counsel to the jury. However the learned trial judge dealt with the issue of bullying as follows:-

“There were some suggestions to detective Sergeant White that some matters were included in the statement because of some bullying going on by Detective Sergeant White. Detective Sergeant White denied that under oath. There is no contrary evidence on that. In other words, ladies and gentlemen, it would be, I think, in fairness, perverse for you to draw any assumption that bullying had taken place because the only evidence that you were confronted with now, in regard to the statement, is the evidence given to you by Detective Sergeant White.”

There was of course in addition the evidence of Garda Mulligan.

There was no requisition in relation to the charge by the applicant’s counsel.

Conclusion on the application for leave to adduce new or additional evidence
The admissibility of the inculpatory statement was not challenged. The applicant alleged bullying in the statement which he gave to Superintendent Gallagher on the 19th March 1998 but other than as detailed above the allegation was not pursued at the trial. The applicant did not give evidence that he was bullied. No requisition was raised as to the manner in which the learned trial judge dealt in his charge with the evidence in relation to bullying. While the notice of appeal is not specific the object of seeking to introduce new evidence as to the character of Sergeant White and of Garda Mulligan can only be to have the inculpatory statement excluded from evidence on the grounds that the statement was obtained by improper means. Other than the suggestions as to bullying noted above, it was never contended that the statement was not voluntary. There was no evidence led to support such a submission. The object, accordingly, of seeking to introduce new evidence is to raise a different point by way of defence from anything offered at trial. The applicant and his legal advisors were fully aware of the statement the applicant made on the 19th March 1998 in which the allegation of bullying was made. Nonetheless the decision was made not to pursue this at the hearing.

This court is a court of appeal. Its practice invariably has been directed to avoid an application for leave or an appeal being turned into a rerun of the trial. In general if evidence was available at the time of the trial but was not used it would not be admitted on appeal: Attorney General v McGann [1927] I.R. 503.

In The People (Director of Public Prosecutions) v O’Regan, [2008] I.L.R.M. 247 Kearns J. said:-

“Quite clearly, therefore, it should not be open to an appellant to hold back a point of substance for technical reasons, or because of a particular strategy determined upon in advance of a trial, and then seek to deploy the point only in the context of a later appeal. Public policy demands that the entire defence be advanced for once and for all at trial and not in a piecemeal fashion in the context of ongoing appeals and challenges.”

In the judgment in The People (Director of Public Prosecutions) v Cronin [2003] 3 I.R. 377 at 391 Hardiman J. explained the reason for such a rule:-

“The reason for this rule or statement of principle is not at all a technical one, or one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the court is engaged, which is to say whether or not the trial was a safe and satisfactory one.”

To justify the admission of new evidence it is necessary to explain why competent lawyers at the trial did not raise the point now sought to be raised: The People (Director of Public Prosecutions) v Maloney, unreported, Court of Criminal Appeal 2nd March 1992. The applicant has failed to furnish such an explanation. In The People (Director of Public Prosecutions) v Lee [2004] 4 IR 166 at p.182 the court said:-

“It is generally not accepted for an accused to acquiesce to the conduct of a trial and in particular to the admissibility of evidence without objection and subsequently to raise on appeal points which could have been properly raised in the course of the trial.”

The principal new evidence which the applicant seeks to introduce are the reports of the Morris Tribunal with a view to supporting his case that the inculpatory statement was improperly obtained. However this was never an issue at the trial. For this reason the court should not allow the Morris Tribunal reports to be used in evidence on the appeal. In addition the applicant seeks to introduce evidence of other persons having being bullied into making inculpatory statements by Sergeant White. For the like reason such evidence is not admissible on the appeal. Lastly the applicant seeks to introduce evidence of admissions by Gerard Peoples that he in company with two others had in fact committed the offence. Such admissions through the mouth of the person to whom they were made is hearsay and not admissible: R. v Turner 61. Crim. App. Rep. 67, R v Blastland [1986] 1 A.C. 41 (not affected on appeal at 1986 A.C. 41).

For these reasons this court will not grant leave to the applicant to adduce new fresh or additional evidence.

The application for leave to appeal against conviction
No submissions were made to the court in support of the grounds of appeal at 1 and 2 quoted above. Accordingly this court is satisfied that on the basis of the evidence presented to the jury, the applicant having for tactical reasons opted not to pursue any issue relating to the admissibility of his inculpatory statement this court must refuse the applicant leave to appeal.