Irish Court of Criminal Appeal

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Cite as: [2010] IECCA 100

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Judgment Title: D.P.P.-v- Raymond Gartland

Neutral Citation: [2010] IECCA 100

Court of Criminal Appeal Record Number: 272/08

Date of Delivery: 10/29/2010

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Budd J., O'Keefe J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Refuse additional evidence app

Outcome: Refuse additional evidence app

COURT OF CRIMINAL APPEAL

272/2008

Finnegan J.
Budd J.
O’Keeffe J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

and

RAYMOND GARTLAND

APPLICANT

Judgment of the Court delivered on the 29^th day of October 2010 by Finnegan J.

The applicant was found guilty of an offence contrary to section 15A of the Misuse of Drugs Act 1977, possession of a controlled drug with a value of €13,000 or more for the purposes of sale or supply. He was sentenced to a term of imprisonment of twelve years. In addition he was found guilty on three counts of possession of a controlled drug contrary to section 27 of the Misuse of Drugs Act 1977 and sentenced to terms of imprisonment of two years, two years and one year. All the terms of imprisonment are to run concurrently. He seeks leave to appeal his conviction. The circumstances of the offences in brief are as follows.
The applicant was observed by Gardai alight from a car go to the passenger side and remove a black refuse sack containing something boxed shaped the corners of which were apparent at the bottom of the bag. He went to the rear of 94 Barron Park, Clonmel, Co. Tipperary. On a search of the premises the Gardai found a bag which they identified as the same bag and which contained the drugs.
On this motion the applicant seeks the following reliefs:-

An order giving liberty to the applicant to introduce fresh evidence pertaining to the matters at issue at the trial.

An order directing a retrial.

An order admitting the applicant to bail pending retrial.

The application is grounded on the affidavit of the applicant’s solicitor John M. Joy. The relevant passage from that affidavit is as follows:-

“(11) I say that I attended at Clonmel Garda Station and was advised by Nigel Gartland that while he was in custody on another matter he had during the course of his custody admitted placing the plastic bag containing the drugs in the garage premises and further advised that his father was not in any way involved in the placing of the drugs within the garage premises and that he had made a statement to that effect.”

In short then the applicant seeks to have admitted into evidence and to rely on a statement by his son, Nigel Gartland, to the Gardai in which he claims to be responsible for the drugs found on the premises the subject matter of the charges against the applicant.
Section 33 of the Courts of Justice Act 1924 as inserted by section 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides as follows:-

“

(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal on -

a record of the proceedings of the trial and on a transcript thereof verified by the judge before whom the case was tried, and

where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains

with power to the Court to hear new or additional evidence, and to refer any matter for a report by the said judge.”
The principles upon which the court will act on an application to the court to hear new or additional evidence are clearly set out in a number of decisions of this court: see The People (Director of Public Prosecutions) v George Redmond, unreported, Court of Criminal Appeal 28^th July 2004, (2004) IE CCA 22 and The People (Director of Public Prosecutions) v Willoughby, unreported, Court of Criminal Appeal 18^th February 2005. However in the light of what is said hereafter it is unnecessary to consider those principles.
The applicant seeks liberty to introduce evidence in the form of the statement made by Nigel Gartland to Gardai at Clonmel Garda Station while he was in custody on another matter. He had, it is deposed, in the course of his custody admitted placing the plastic bag containing the drugs in the premises and which drugs were found in the course of the search of the premises. He made a statement to that effect.
The question to be answered is this: are there any circumstances in which the statement by Nigel Gartland is admissible in evidence? The answer to that question must be an emphatic no. The statement is hearsay. The definition of hearsay in Cross on Evidence is as follows:

“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.”

This definition was approved of by the House of Lords in R. v Sharpe [1988] 1 W.L.R. 7. Again Phipson in the 15^th edition defines hearsay as follows:-

“Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible to prove the truth of the matter stated.”

The facts in R. v Lawless and Lawson [2003] EWCA Crim 271 were as follows. Both appellants were convicted of murder. The victim had been acquitted of indecent assault on an eight year old girl but following his acquittal he was harassed, the windows of his home were smashed, graffiti were daubed on his walls and intruders broke into his home and attacked him. The circumstances of the appellants’ offence were that on the 9^th February 2001 accelerant was poured through the letter box of the victim’s home and ignited and as a result he died from smoke inhalation. Mr Lawson’s girlfriend, Chantelle Day, was charged with conspiracy and Lawless and Lawson charged with murder. Chantelle Day was convicted and sentenced. While in a young offenders institute she admitted to a fellow inmate that she was involved in pouring the accelerant into the home of the deceased, yet Mr Lawson was taking all of the blame. She repeated this to female prison officers. She said that Mr Lawless wasn’t even there.

Lawless obtained statements from those to whom Ms Day spoke and sought leave to call the makers of the statements to whom Ms Day had spoken. Leave was refused as their evidence would be hearsay.
In the course of the judgment of the court Kennedy L.J. said:-

“…but it is, we think, helpful to start by considering whether the evidence now sought to be relied upon could ever have been admissible in the trial from which this appeal lies.”

The court cited passages from the judgment of the House of Lords in R v Blastland [1986] A.C. 41. Lord Bridge at page 54 said:-

“The rationale of excluding it (a statement by a third party admitting responsibility) as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability by cross-examination.”

Again:-

“The statements which it was sought to prove that Mark made, indicating his knowledge of the murder, provided no rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To do so would have been mere speculation. Thus, to allow this evidence of what Mark said to be put before the jury as supporting the conclusion that he, rather than the appellant, may have been the murderer seems to me, in the light of the principles on which the inclusion of hearsay evidence depends, to be open to still graver objections than allowing evidence that he had directly admitted the crime. If the latter is excluded as evidence to which no probative value can safely be attributed, the same objection applies a fortiori to the admission of the former.”

The court fully agrees with the dicta of Lord Bridge in R v Blastland and of the decision in R v Lawless and Lawson not to admit into evidence as hearsay the statements made by Ms Day. A written confession or admission is subject to the same objection as a verbal one. In short on an application for leave to adduce new evidence the evidence sought to be admitted must in the first instance be admissible. That is not the case here. A written and signed statement of confession by the applicant’s son is subject to all the infirmities that affect hearsay. It is not evidence tendered viva voce in court, the jury would have no opportunity to observe the demeanour of the author and he is not susceptible to cross-examination.
The application for leave to adduce additional evidence must be refused. For the like reason that the statement sought to be relied upon is inadmissible on appeal it is inadmissible on any retrial. Accordingly the court refuses the applicant the reliefs sought at 1 and 2 in the notice of motion. As no retrial can be directed the issue of bail pending retrial does not arise.