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Cite as: [2009] IECCA 29

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Judgment Title: DPP -v- Timothy Kavanagh

Neutral Citation: [2009] IECCA 29

Court of Criminal Appeal Record Number: 126/08

Date of Delivery: 02 April 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Budd J., Charleton J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Other (see notes)

Notes on Memo: Dismiss the application for leave to appeal against conviction and sentence

THE COURT OF CRIMINAL APPEAL

[2008 No. 126]

Finnegan J.
Budd J.
Charleton J.

BETWEEN

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

RESPONDENT

AND
TIMOTHY KAVANAGH

APPELLANT

Judgment of the Court delivered the 2nd day of April, 2009 by Mr. Justice Charleton

1. On the eighteenth day of the trial before His Honour Judge Rory McCabe, the accused was convicted on a single count of manslaughter. The particulars set out in the indictment alleged that on 11th July, 2006 at 55 Rathsallagh, Shankill in the County of Dublin, he unlawfully killed Johann Verhoeven by the use of a knife. Against this conviction, the appellant seeks leave to appeal and has raised six grounds of appeal. These will be dealt with in the order in which they were argued before the court.
Time of Death

2. Johann Verhoeven was last seen alive by anyone other than the appellant on 10th July, 2006. He then disappeared. His body was found by a passer-by, who was alerted by a peculiar smell, near Roundwood in County Wicklow on 2nd September, 2006. The remains of the deceased had badly decomposed by that stage. He had been lying in wet ground and his corpse had lost many internal organs, one arm was detached and the body was only partially clothed. Fifty-three days had passed since the date when, it was alleged, the appellant had unlawfully killed him. It was submitted on his behalf that the trial judge erred in law in failing to withdraw the case from the jury because of inconsistent evidence as to the date of death.

3. Evidence as to the time of death was led before the jury from Dr. John Derek Manlove, a forensic scientist from Oxfordshire in England. His expertise is in entomology and, in addition, as a forensic scientist, he commonly deals with human DNA, body fluids and blood pattern analysis. He travelled to Ireland on the same day that the corpse was discovered. He attempted to fix the time of death on the basis of the insect activity, principally Calliphoridae. These insects, commonly known as blow flies, lay their eggs in decomposing material. He estimated a time of death based upon his findings as to the activities of these and other kinds of insects. His conclusion was that insect activity was in keeping with Johann Verhoeven having been dead since 11th July, 2006. He was challenged as to the parameters of that calculation. He understood that his task was to examine whether a target date, namely the date on the indictment, was a possible date of death. He stated that it was difficult to be precise as to the pattern of invasion of a dead body by insects. His view was that decomposition was “a complex thing” which did not always “follow exactly the same path”. His opinion also was that temperature was a key variable which lessened the possibility of exactitude. As it was quite a cool site, the possible interpretations of an estimate as to the time of death ranged between forty and fifty days.

4. Given the range of variables apparent from Dr. Manlove’s evidence, and clearly indicated by him to be no more than estimates, it is clear that what are argued to be his concessions should not be seen as such. Rather, as a careful expert, he was content to engage with the questions posed by counsel. He was adamant that precise science was not possible in the circumstances of discovery of the deceased’s corpse. There was nothing about his evidence that rendered it even probable that this was a more recent death than that alleged in the indictment. As such, any argument as to the correctness of his approach, or as to any doubt there might be as to a fundamental proof offered by the prosecution, was properly to be argued out before the jury.
Stab Wound

5. It was argued on behalf of the appellant that the trial judge should have withdrawn the case from the jury as the prosecution did not produce any consistent evidence that death could have been caused by a stab wound. It was at all times the prosecution case that the deceased had died in consequence of a stab wound to his chest caused by a sharp weapon, and most likely by a bladed knife. Because of decomposition, however, the effect of such wound could not be traced with exactitude by Dr. Marie Cassidy, the State Pathologist. Because the body of the deceased was found lying on his front, it was relatively protected from animal activity. The skin, however, had dissolved, leaving only the soft tissues over the front of the rib cage. Between the second and third right ribs there was a slit in the intercostal muscles. Behind this area, in living people, is situated the right lung and the upper attachment to the heart. Dr. Cassidy’s view was that the damage to the intercostal muscle was fairly typical of the type of damage that you would see caused by a stab wound to the body at that location. The effect would be the severing of the intercostal artery, with the loss of a significant quantity of blood, possibly causing death in itself, but also causing the collapse of the punctured lung, aggravating breathing problems and potentially bringing about cardiac arrest. At para. 5 of her report, which was read to the jury, Dr. Cassidy explained these effects in detail. It was put to her by the defence that her opinion was inconsistent: that she was saying, on the one hand, that death was due to a stab wound and, on the other, that the death could have been caused in this way. When asked which was correct, she indicated that both were correct. She went on:-

“Paragraph 5 is just an explanation of what could potentially happen with a stab wound at this particular site in the body; so it is airing the possibility of what could happen internally. I can’t prove what actually did happen internally in this particular case because the internal organs were missing and not available for examination. Therefore, normally, in such [an] instance, I would be saying that death was due to, for example, haemorrhage and shock due to a puncture wound to the heart, due to a to a stab wound to the chest. In this case, I can’t be quite so specific. However, because of my expertise in this matter, I know that these types of injuries to that site can and do cause death. What I have given in para. 5 is a range of the possibilities of how death could have come about. As we’ve already discussed in your previous questioning, sometimes people can survive such injuries”.

6. The court is of the view that simply because a scientific expert expresses an opinion that something might possibly have happened, this does not mean the undermining of that expert’s testimony on behalf of the prosecution. A wide range of hypothetical possibilities are put to experts by counsel for the defence. This is proper. The issue before the jury, however, is whether any possibility reasonably arises whereby the prosecution case is undermined to the extent that proof beyond reasonable doubt is not possible. This was a point that was clearly to be argued out in front of the jury and the learned trial judge was correct not to grant a direction in respect of it.
Blood on the Shirt

7. It is argued that the learned trial judge erred in law in allowing the jury to view the shirt from the body of the deceased because there was no blood visible on that shirt in the chest region. When the body was found it was, as has been mentioned, only partially clothed. There was a slit in the shirt worn by the deceased corresponding approximately with the relevant site of entry of the stab wound to the chest. The State Pathologist, Dr. Marie Cassidy told the court that she did not see any blood stain around the slit in the shirt. When asked whether this surprised her, she indicated that because of the position of the body and the damp condition of the ground over several weeks, “any blood may have been diluted and disappeared completely”. She asked that the Forensic Science Laboratory should examine the shirt for areas indicative of blood once having been present. However, no evidence was led by the prosecution that this area of the shirt had been detached and examined and, further, no evidence was led that any test for the presence of blood might be possible on the shirt of a deceased person lying in damp ground for fifty-three days. The learned trial judge was correct to regard this as a point to be properly argued, for what it might be worth, in front of the jury.
The Knife

8. The fourth ground of appeal was briefly argued and will also be concisely dealt with by the court. The accused had a number of knives in his home, as would many people. As the court understands from the evidence, the most that can be said in relation to a stab wound is that a particular blade may possibly have caused it. Attention was drawn before the court to a Bowie knife owned by the appellant. The evidence at trial was that a knife of this kind could have caused the wound on the deceased’s body; insofar as that issue was capable of being explored given the decomposed state of the victim’s remains. This, again, is a point of fact.
Telephone Evidence

9. The ground of appeal in relation to the telephone evidence was not the subject of written submissions. Telephone evidence can be an important part of a prosecution case. When a landline is accessed, then it is generally answered in one fixed location; the exception being a mobile device that can be used around the house or office or garden, or possibly a bit further away. When a mobile telephone is used, it can be registered to a particular user, or it can be proved to have been in use by that person, for instance on loan. Calls are routed at a particular time, and over a particular duration, to the nearest available mast. Such evidence is admissible and it may be highly probative; see the judgment of this court in The People (D.P.P.) v. Meehan [2006] 3 IR 468. The court does not understand there to be any legal difficulty in relation to the telephone evidence adduced in this case. Briefly, it showed a large volume of calls to the deceased’s mobile telephone. The mobile telephone of the deceased apparently stopped working at 04.40 on 11th July, 2006. This was a material fact. While it did not fix the time of death it was relevant to the approximate time of death. The deceased had been an enthusiastic user of his mobile telephone for some time prior to that. He made and received hundreds of calls every week. If his battery had run out, it might reasonably be expected that he would recharge it. Instead, the telephone ceased to be used at all. Some evidence was also adduced, indicating the mast through which mobile telephone calls were routed by the deceased and by the appellant. This evidence was clearly admissible and relevant.

The Admission

10. The appellant claims that a statement of admission made by him while in garda custody, during his third session of being interviewed by the gardaí, was inadmissible in evidence. The relevant part of the statement was inculpatory and it reads as follows:-

“Myself and Joey were acting the mick in the kitchen, playacting and fighting. Things just got out of hand, out of control. I basically stuck a knife in him. It was in the kitchen, one of my own. Youse have it, cleaned up. I cleaned it up and left it back in the sheath and left it in the kitchen. I stabbed him sideways through the chest. I stabbed him near the solar plexus area. He dropped down with a look of shock on his face. There was blood coming out where I stabbed. He fell on the ground in the kitchen. He had been standing. I just panicked. I didn’t know what to do. It was probably about 3.30 am or so. I was freaking out. I didn’t know what to do. I knew he was dead.”

11. It is complained that this admission was obtained by way of trick or through oppressive questioning. No argument concerning a trick, however, was advanced to the learned trial judge. An argument that there was an illegal inducement and oppressive questioning, rendering the statement inadmissible, was made to the trial judge. In making his ruling, after a thorough voir dire, and after viewing the three relevant videotapes of interview, the trial judge ruled thus that the statement was admissible in evidence:-

“I take the view that there was no inducement or hope of advantage as described by [counsel for the defence] Mr. Hickson, at any time offered to the accused man by any member of the gardaí concerning himself, his partner or her children. Whatever he may have thought, the evidence simply does not support that proposition. In a similar way, I take the view that there was no ploy, either subjectively or objectively, to overbear the will of the accused by allowing Mr. William Reddin to visit him and I note in these circumstances that this visit took place at the option of Mr. Kavanagh and that he had the opportunity to either accept or refuse the option of this visit and that while the visit was going on, he had the option to determine it at any time. I take the view that there was no oppression of the accused by any word or act of the gardaí at any time and I view that in the context of the overall circumstances and the description of Mr. Kavanagh as being a man of the world was, I think, a fair one in the circumstances”.

12. The appellant alleges a trick in allowing William Reddin, the father of the applicant’s long time partner Vikki Reddin with whom he has children, in to visit him; he alleges that the questioning by gardaí was oppressive; and he argues that a misstatement of the facts uncovered in the investigation caused him to confess to the killing of the deceased when otherwise he would have remained silent. The court will consider each of these in turn.

13. Contradictory accounts were given by witnesses on the voir dire concerning the issue of the brief visit by William Reddin to the appellant. Vikki Reddin, his daughter, had been arrested and no issue has been raised asserting that this was not a correct use of Garda powers. William Reddin, her father, had come to visit her in custody. She had an entitlement to such a visit under the Custody Regulations. The exercise of such rights can constitute an important easing of the natural burden attendant on detention.

14. The issue raised at trial was this: in essence, Mr. Reddin said that he had been asked to go in and speak to the appellant by Inspector Pat Murray. His evidence was that he and his wife had gone to the Garda station to see their daughter. They were treated courteously. His evidence continued as follows:-

“I was in there about five minutes, and the door opened and Inspector Murray said ‘Willy can you come outside, I want to talk to you for a minute’. I went outside. He brought me out into what I call the public office and he said to me ‘would you go into the cell and talk to Timmy’. And I said ‘No way, will I go near him. I don’t talk to him outside, so I am not going to talk to him in here. My daughter is locked up. I am not going to talk to him. I have nothing to say to him…’ I have never got on with Timmy. We don’t see eye to eye. We don’t talk.”

15. As against this account, there was the version of the visit testified to by Inspector Pat Murray. According to this witness, Mr. Reddin had asked to speak to the appellant. The appellant agreed to the visit. Inspector Murray then went and cautioned Mr. Kavanagh that whatever he said during the visit would be treated in the same way as an interview and so may be given in evidence. The inspector’s account of the conversation and the subsequent visit to the appellant was this:-

“It was about Mr. Kavanagh and Ms. Reddin’s children. Apparently, Mr. Reddin and his wife had been looking after the couple’s children while both of them were in the station, and that was the reason that Mr. Reddin indicated to me that he wished to speak to Mr. Kavanagh to tell him that they were looking after the children, that they were o.k., that some of the older children had been asking after them, those issues… Mr. Kavanagh had a moment of silence… Mr. Reddin urged him to tell the truth and he put his head into his hands for it could have been twenty to thirty seconds, there was a long silence, and then he looked up and addressed me and he said:- “I want to tell you what happened with Joey”. I asked him was there anyone in particular he would like to talk to about it and he said he would like to talk to Detective Sergeant [Fergus] O’Brien. Mr. Reddin and I left the cell and I sent for Detective Sergeant O’Brien.”

16. As between these two accounts, the learned trial judge had an obligation to make a choice. This court can have no opportunity to view the witnesses or to consider the testimony given in the light of all the other facts which the learned trial judge considered as part of the voir dire. It is only, therefore, if an error of principle emerges in the consideration of the matter at trial that the court has an entitlement to interfere. A visit by a family member can in some extreme circumstances be wrongly used in order to unfairly undermine an accused person in Garda custody. If such a strategy is found to fall short of the standard of fairness required under the Constitution in the investigation of crime and, if a statement results from it, then it may be involuntary; see the judgment of this court in The People (D.P. P.) v. Shaw [1982] I.R. 1. A confrontation with a suspect in custody can be an appropriate use of detention. There is nothing to suggest to the court that this meeting was anything other than fairly conducted in the context of the investigation as a whole.

17. The statement made by the appellant in Garda custody is also attacked on the basis of an allegation of oppressive questioning. During the voir dire, the appellant had testified that he had found the second interview “very aggressive”. He claimed to have been “unsettled by it, a bit nervous”. He complained that Detective Garda Woods had been leaning across the table shouting “liar, liar” and that Detective Garda O’Hara was also shouting aggressively at him about some blood staining which was found on the carpet of his car matching the deceased’s DNA. The learned trial judge had the opportunity to view the three relevant video and audio tapes from these interviews. These were also viewed, from the point of the weight to be attached to any admission, by the jury in considering the issue of the discharge of the onus of proof by the prosecution. The learned trial judge correctly took into account the background of the appellant. As the authorities establish, what can be oppression as regards one individual may be no more than robust questioning as regards another; see the judgment of this court in The People (D.P.P. ) v. Pringle (1981) 2 Frewen 57. The learned trial judge was in a position to assess this in the context both of the electronic recording of the interviews and the testimony of the appellant before him. The gardaí were entitled to confront the accused with the relevant material, which they viewed as raising a suspicion of guilt, and to question the accused vigorously on these points. There is nothing to suggest that the judgment arrived at by the learned trial judge was incorrect.

18. Lastly, it is argued that a trick was used against the accused in order to make him confess. There is no evidence of this. It can be the case that a deliberate and serious lie can be told by officers interviewing an arrested person which leads him or her to believe that the case against him is far stronger than it is in reality. An instance of this might be a deliberate lie to the effect that the arrested person’s fingerprints had been found on a murder weapon. The use of such a deliberate tactic is dangerous to the concept of fairness because it can undermine the voluntary character that is attendant on an admissible confession statement. It can undermine the equanimity of an innocent person and so be part of oppressive circumstances which renders a confession inadmissible. There was nothing like that in this case.

19. The question put to the appellant in Garda custody, which has been argued as constituting an unfair trick, concerns the blood staining in the appellant’s car. During the trial proper, evidence had been led from Dr. Martina McBride, a forensic scientist, that she had done a fingertip search of the carpet of the appellant’s car and had detected blood-staining in one area. Further evidence was led that the DNA within this blood staining matched that of the deceased victim. It was therefore both useful and necessary to a proper investigation to question the appellant thoroughly about this. It could be argued that it was in the interests of the appellant to claim that the deceased had been in his car in innocent circumstances. This he did, in fact, elaborating on it with a claim that the deceased had frequent nose bleeds while in his car which he would deal with by way of blowing his nose into a tissue: “he would just blow it and there would be blood everywhere.” The gardaí put to the appellant that the type of blood staining found in the car was “substantial contact blood staining”, as opposed to flying blood marks. This concept was explained to him carefully by those questioning him. In the course of this interview, it was put to the accused: - “Vikki says he was never in the car with her”. On being questioned by counsel for the defence, the relevant interviewing Garda, Detective Sergeant Fergus O’Brien, conceded, on counsel claiming that no such statement could be found, that he could not remember what precisely Vikki Reddin had said on this point. The court has no evidence as to what the appellant’s partner said one way or the other to the gardaí while she was being questioned. It may be that Detective Sergeant O’Brien conceded something which he should not have. If there was a mistake, the court does not know who made it. The court notes, however, that the case was never made by the gardaí that they had evidence that the deceased had not at any stage taken a lift in the car with the appellant. The statement made by Detective Sergeant O’Brien was simply to the effect that it had been said that the appellant, his partner and the deceased had never been in the car together. This did not in any way deceitfully undermine the appellant’s contention, while in Garda custody, that the deceased had frequently taken lifts in his car.

20. A point concerning an improper inducement was also made. On the tape of the interview, Detective Sergeant O’Brien can clearly be heard saying that he could not make any promises. At one point, in evidence, the appellant alleged that he had been privately told that if he made a statement of confession that his partner would be released. Under cross-examination, however, he said the following:-

“He didn’t promise me. I asked Detective Sergeant O’Brien would Vikki be allowed go. He didn’t say yes and he didn’t say no. The way I took it when he told me was that if I made the statement, Vikki would be allowed to go because they had nothing to charge her with.”

21. It is clear that no inducement was offered by the Gardaí to the appellant which resulted in him making a confession statement.
Result

22. In consequence of these findings, the court will dismiss the application for leave to appeal.