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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Gary Hanley [2010] IECCA 101 (27 October 2010)
URL: http://www.bailii.org/ie/cases/IECCA/2010/C101.html
Cite as: [2011] 1 IR 247, [2010] IECCA 101
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Judgment Title: D.P.P.-v- Gary Hanley Composition of Court: Fennelly J., deValera J., Edwards J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Refuse application for leave to appeal | ||||||||||
THE COURT OF CRIMINAL APPEAL RECORD. NO 164/09 Fennelly J.de Valera J. Edwards J. BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND APPLICANTGARY HANLEY JUDGMENT OF THE COURT OF CRIMINAL APPEAL DELIVERED THE 27th DAY OF OCTOBER, 2010 BY MR JUSTICE FENNELLY The applicant was convicted in May 2009 by a jury sitting in the Dublin Circuit Criminal Court of two offences arising from a violent and unprovoked attack on one Martina Kelly (hereinafter “Miss Kelly”). His Honour Judge McCartan presided. The offences charged were of assault causing harm contrary to Section 3 of the Non-Fatal Offences against the Person Act, 1997 and of a threat to kill or cause serious harm contrary to section 5 of the same act. The jury verdicts in respect of both offences were by 10-2 majority. At the commencement of the trial, Miss Kelly informed the court that she wanted to retract her statement and that she did not wish to go ahead with it. The prosecution was permitted to treat her as a hostile witness. In addition, the trial judge admitted into evidence the statement Miss Kelly had made to the gardaí pursuant to the provisions of section 16 of the Criminal Justice Act, 2006. Grounds of appeal are advanced under four headings:
The applicant also complains that the defence was refused sight of a photograph of a person other than the applicant whom Miss Kelly named as her attacker, following withdrawal of her evidence against the applicant It was submitted that the learned trial judge wrongly failed to accede to requisitions concerning his charge to the jury. It is also claimed that there were irregularities in the manner in which the jury reached its verdict, in particular that jurors were permitted irregularly to separate for smokes; On 15th March 2007, Miss Kelly made and signed a statement in writing to the Garda Aileen Moynihan in which she described in detail a physical attack made upon her by the applicant earlier on the same day. The substance of that complaint may be summarised as follows. Miss Kelly and a friend had travelled by DART from Kilbarrack to Clontarf. They wished to take a taxi from Clontarf and waited outside the DART station. Miss Kelly was carrying her baby. A green car passed the DART station but then performed a U-turn on the road, headed straight for the two people and pulled up beside them. Miss Kelly saw the applicant in the back seat. She was scared. The applicant jumped out of the car. He came towards her and took a set of keys out of his pocket. He caught Miss Kelly’s hair, pulling her towards the ground. He stabbed her several times with the keys above her left eye and below her left ear, dragging the key to a half inch from her mouth. While he was doing this, he called her “a bitch” and said “next time you will get it in the heart.” Miss Kelly understood these words as a threat to kill her. He pushed her back and jumped back into the car. Miss Kelly was assisted by two off-duty firemen and taken to hospital, where her wounds were stitched. While at hospital, she received a phone call from the applicant. He offered that, if she did not go to the police, he would forget about the matter and leave her alone. It was common case that there was a history of bad blood between Miss Kelly and the applicant. He apparently blamed her for the death of his girlfriend in a car crash in 2006: the car was driven by Miss Kelly’s boyfriend, who was also killed. In her garda statement she had alleged threats and assaults by the applicant since that time and said that she was very scared of him. She retracted all these allegations in her evidence. Miss Kelly told the prosecution that she did not wish to go ahead with the case. She failed to turn up in court and had to be arrested. When called as a witness, she said that she wanted to retract her statement. In answer to counsel’s questions, she claimed not to remember anything about the events of 15th March 2007. Asked about her injuries, she said she was not sure when they had happened and that she had been fighting with a girl. She was asked a number of questions about the applicant. She said that she did not know him that well and that she did not know if he had any identifying marks on his body, though she had given a detailed description of a tattoo in her garda statement. She said that the “Gary Hanley” she had referred to was not in court. Counsel for the prosecution applied to the trial judge, in the absence of the jury, both for a ruling permitting the prosecution to treat Miss Kelly as a hostile witness and for a ruling admitting her garda statement into evidence pursuant to the provisions of section 16 of the Criminal Justice Act, 2006. Counsel for the defence submitted that the prosecution could not pursue both courses: it had to be one or the other. He opposed, in particular, the application to treat the witness as hostile on the ground that it would serve no purpose to cross-examine the witness and that to do so would be prejudicial. Miss Kelly was examined by counsel for the prosecution in the absence of the jury. She agreed that she had signed the garda statement and that she had provided the gardaí with the information contained in it. She had no complaint about her treatment by Garda Moynihan. However, she said that the information she had provided for inclusion in her statement was false insofar as it implicated the applicant. She said that another person in the car outside the DART station was the person who had assaulted her; she did not wish to name him. Her explanation for naming the applicant as the culprit was that she had screamed to him for help and that he would not come to her aid. He kept laughing at her. For this reason, she wanted to get her own back. Referring to her earlier evidence that the “Gary Hanley” she knew was not in court, she said that she had not recognised him because she had not seen him for three years. Counsel for the defence, in cross-examination, suggested to her that the person who had assaulted her was Alan Mangan and she agreed. Counsel for the prosecution submitted to the learned trial judge that the statement was reliable for the purposes of section 16 of the Act of 2006: it had been made voluntarily in a controlled environment; she had been well treated by the gardaí. Counsel for the defence opposed the admission of the statement, emphasising particularly the unusual feature that Miss Kelly had named a different culprit. The learned trial judge ruled in favour of the prosecution both that the witness could be treated as hostile and that her statement should be admitted pursuant to section 16 of the Act of 2006. He referred to the many twists and turns in her evidence and that she had been shown to be adverse to the prosecution. For the purposes of the section, he found the statement to be reliable. For the sake of clarity, it should be said that no issue is raised in the appeal concerning the admission of the statement. Counsel for the prosecution cross-examined Miss Kelly in the presence of the jury. The course and content of this cross-examination forms the basis of the first and principal ground of appeal. Counsel for the prosecution first took Miss Kelly through the statement line by line, inviting her to agree, and she did agree, that each sentence contained information contained information which she had conveyed to the gardaí. She also agreed that the statement had been read over to her and that she had been invited to make any changes, additions or alterations to it, that she had signed the statement and that it had been witnessed by Garda Aileen Moynihan and that she had no complaint to make regarding her treatment by Garda Moynihan. Miss Kelly accepted, in the course of this cross-examination that the events of 15th March 2007 had occurred, in substance, as described in the statement, save for the crucial matter that her assailant was not the applicant, but another person, whom she did not wish to name. She no longer maintained that she could not remember the events of that evening, which was what she had said at the commencement of her evidence on the first day. Nor did she persist in alleging that she had sustained her injuries in a fight with another girl. She said that she had been lying insofar as she had named the applicant as her attacker or insofar as she had described his physical appearance or alleged that he had a tattoo. Counsel tested her evidence in court extensively and in detail by reference to her garda statement. In particular, he challenged the evidence that she had given the previous day to the effect that she had not seen the “Gary Hanley” mentioned in her statement in court. She accepted that she did recognise him and explained that she had not “seen him in so long.” Counsel suggested to the witness that the evidence she had given in court was entirely untrue to the extent that it differed from her garda statement. This line of cross-examination was challenged by counsel for the defence as being in contravention of the judgment of this court delivered by Walsh J in People (Attorney General) v Taylor [1974] IR 97. The trial judge ruled against this objection. Ground number 1: cross-examination of hostile witness Mr Michael O’Higgins, Senior Counsel, submitted at the hearing of the application for leave to appeal that the cross-examination of Miss Kelly conducted by counsel for the prosecution represented a radical departure from the ordinary rule as laid down in AG v Taylor. It is clear, he submitted, from the judgment of Walsh J, in that case, that the cross-examination of a witness permitted to be treated as hostile is limited to discrediting the evidence of the witness by demonstrating that he or she had made an inconsistent statement on an earlier occasion. Counsel insisted that AG v Taylor was well established authority and the Court should not depart from it. The principal objection was that the witness should not have been cross-examined on the contradiction between her garda statement and the evidence she had given in court on the previous day. This concerned especially the question of whether she had been able to identify the applicant on the first day of the trial, when she said that she did not see him in court, and her acceptance, both in her statement and in her evidence on the second day that she did recognise him. Mr Colm O’Briain, on behalf of the Director, submitted that the cross-examination had been focussed and well within the permitted boundaries of cross-examining a hostile witness. Counsel cited, as did the applicant in his written submissions, the following passage from The Criminal Process, by Thomas O’Malley, barrister-at –law at page 501:
It is appropriate to consider, in the first instance, the effect of the decision in AG v Taylor. Mr O’Higgins submits that the case is authority for a strict limit on cross-examination of a witness permitted to be treated as hostile. Once the witness agrees that there is a contradiction or material variation between his or her evidence and an earlier statement that should be end of any cross-examination as to credit. That case was based on the procedure provided by section 3 of the Criminal Procedure Act, 1865, which provides:
AG v Taylor was a murder trial. The widow of the deceased gave evidence about the nature of the weapon used: in her evidence she said it was a knife, though she had made a statement saying that it had been a scissors. The trial judge, on that ground, permitted her to be treated by the prosecution as a hostile witness. However, as Walsh J explained, the object of the cross-examination which was in fact conducted was to discredit her because her evidence relating to the circumstances leading up to the stabbing of the deceased could be used as the basis for a claim of provocation which had been raised by the defence. Walsh J pointed out that she was never asked which of the two versions given by her as to the weapon used was correct. He was of the view that the nature of the weapon was not regarded as being of importance, but “what was of extreme importance was the question of the credibility of the witness in her account of the circumstances in which the plea of provocation was based……” It was against this background that Walsh J made the comments, which appear at page 99 of the report, upon which Mr O’Higgins relies as follows:
The first thing to note is that Walsh J was, throughout that passage, dealing with the facts and circumstances of the particular case. It appears from this account that the prosecution did not cross-examine the witness at all as to the contradiction between her statement and her evidence concerning the point in respect of which leave had been given to treat her as hostile but rather on a quite different matter which had been raised by the defence at the trial. On that ground, therefore, AG v Taylor is to be distinguished from the present case. Furthermore, it is to be noted that Walsh J, when he spoke of “the end of the matter,” was referring to the end of cross-examination only “in so far as the question of impugning her credibility was concerned…” He did not suggest that the prosecution is inhibited in all cases from cross-examination with the object of persuading the witness to stand by his or her original statement. Mr Thomas O’Malley, in the passage cited above, mentioned as a permissible objective to persuade the witness “to recant and adopt the truth of his previous statement.” Indeed, that would normally the first and obvious objective of the prosecution, where a witness has declined to give evidence in accordance with an earlier garda statement. Since it is common case that, apart from the provisions of the 2006 Act, the prior statement is not evidence of its contents, there is often little purpose in discrediting a witness, at least where the success of the prosecution depends on the evidence of the witness. It is far more useful to succeed in getting the witness to verify his or her original statement. R v Thompson, cited on behalf of the Director is a good example of success in achieving that objective. There a witness called to give evidence of incest committed on her by her father initially refused to give evidence. However, the report discloses that, when she had been treated as hostile, she “was asked leading questions, her statement was put to her, and in the end she agreed that her statement was true…” The court did not find it necessary to rule on the case in the light of section 3 of the Act of 1865. Rather it considered it in the light of the common law regarding recalcitrant witnesses. Costello J explained the co-existence of the statutory and common law power in his judgment in O’ Flynn v Judge Smithwick and another, cited above. He referred to some of the authorities mentioned in R v Thompson. The following appears at page 595:
In the present case, it seems clear that the prime object of the cross-examination was to secure the agreement of the witness with her original statement and that object was achieved to a significant extent. Firstly, the witness abandoned her claim not to be able to remember at all the events in question. Secondly, she agreed that she recognised the applicant in court. The cross-examination was almost exclusively concerned to demonstrate inconsistencies between her statement and the evidence she had given in court. It was a legitimate use of the hostile-witness procedure. For these reasons, the Court rejects the complaint that the prosecution misused the procedure for cross-examination of Miss Kelly as a hostile witness. Ground Number 2: refusal to provide photograph On the morning of the second day of the trial, it was mentioned in court that the defence had written to the prosecution on the previous evening seeking disclosure of documents in its possession relating to Alan Mangan, in particular information regarding his previous convictions. Mr O’Briain informed the court that he would be providing some information to the defence, “hopefully during the morning.” Evidence was given on the third day by Garda Moynihan concerning the personal details, previous criminal convictions and physical description of Mr Mangan. This information had been obtained from the PULSE records maintained by An Garda Síochana. Mr O’Briain had informed Mr O’Higgins that there was a second part of the material in the possession of the prosecution relating to profiling in respect of which privilege was being claimed. The defence did not object. This information included a photograph of Mr Mangan, but the defence was not told of this. At the close of the prosecution case, counsel for the defence became aware that the prosecution had been in possession of a photograph of Mr Mangan, the existence of which had not been disclosed. Counsel applied to the trial judge for an order that the photograph be disclosed. The judge refused the application in the following terms:
The applicant submits that the prosecution were in breach of their fundamental “duty to disclose to the defence any material which may be relevant to the case and which could either help the defence or damage the prosecution…” (per Keane C.J. in McKevitt v Director of Public Prosecutions, ex tempore, Supreme Court 18th March 2003). Counsel for the Director points out that the evidence of any involvement by Mr Mangan was directly contrary both to the statement made by the complainant to the gardaí and to her initial evidence as to the identity of her assailant. There was no basis prior to the trial upon which the prosecution could have foreseen the relevance of evidence relating to Mr Mangan. The name was put to her by counsel for the defence. On that evidence, Mr Mangan was in the car with the applicant, got out of it and committed the assault on Miss Kelly in full view of the applicant. The applicant had, if this was true, been fully aware of the facts for some two years since the date of the assault and at all times up to the trial. Ms Kelly gave a description of Mr Mangan in her evidence, which was not challenged by the defence. The court fully agrees with these submissions on the part of the Director. It has not been shown that the photograph could have had any material bearing on the proceedings or that the failure to provide it prejudiced the defence in any way. As the trial judge ruled, the prosecution case had terminated and the defence had indicated that it was not going into evidence. In the view of the Court this ground of appeal is without merit. Ground number 3: refusal of requisitions At the conclusion of his charge to the jury, junior counsel for the defence addressed requisitions to the trial judge on three points, two of which are now in issue. The first complaint relates to one particular aspect of the direction regarding the burden of proof. The trial judge directed the jury by quoting verbatim from the judgment of this court delivered by Kenny J in People (Attorney General) v Byrne [1974] I.R. 1. Dealing with the situation where the evidence is open to more than one interpretation or conclusion, the trial judge cited the following dictum from that judgment:
Counsel submitted that the judge gave an inadequate direction by way of contrast with the judgment of this court, delivered by Hardiman J, in People (at the suit of the Director of Public Prosecutions) v Cronin [2003] 3 I.R. 377 at 390:
The respondent submitted, and the court agrees that there is no tension or contradiction between the respective dicta of Kenny J and Hardiman J in the two cases cited. Indeed, Hardiman J had cited the former as authority for the statement he, himself, formulated. Kenny J said that the direction to give the benefit of the doubt to the accused was required whenever “two views in any part of the case are possible,” not merely where there were two hypotheses of equal probability. This, as was emphasised by Hardiman J is an essential part of the charge to the jury. The Court is satisfied that the learned trial judge in this case properly directed the jury on the point. The second complaint was that the learned trial judge told the jury that it was “common case, an argument made both by prosecution and defence, by that I mean common case and it's the case that I don't disagree with that Ms Kelly was doing everything but telling the truth in court.” Counsel objected that this stance had been qualified by Mr O'Higgins on the part of the defence. Mr O’Higgins does not dispute that the defence contested the truthfulness of Miss Kelly in many respects. In his submissions at the hearing of the application, he accepted that, in a literal sense, it is true that some parts of her evidence were untrue. He had addressed the jury on the basis that prosecution and defence were in agreement that the witness was “not a reliable person.” The Court does not believe that this ground of appeal has been sustained. Even if the learned trial judge overstated the extent to which Miss Kelly had generally been accepted as being untruthful in her evidence, one must place in the balance the direction, quoted above, that, even if they did not believe her, the benefit of the doubt still had to come into play. It must be remembered that, on any view, Miss Kelly had given at least two conflicting accounts of the events of 15th March 2007. Ground number 4: jury irregularity The essence of the complaint under this heading is that, after they had retired to consider their verdict, though still in the custody of the jury garda, one or more of the jury were seen in the open area or yard outside the building enjoying a cigarette break. A subsidiary or consequential issue arises as to whether this affected the total minimum period which must elapse before the judge directs the jury that they may bring in a majority verdict. The essential relevant times seem to be as follows: 18th May 16:21 Jury retires 16:53 Jury return to courtroom to ask a question 16:58 Jury retires again 17:29 Jury is sent home (after 1 hour 3 minutes) 19th May 10:42 Jury resumes deliberations 11.48 Jury returns; registrar says after two hours, nine minutes Judge permits majority verdict
Counsel for the defence on 19th May drew the attention of the trial judge to the fact that he and his solicitor had seen the jury in the yard, having apparently come out for a cigarette break. He did not know how many there were or what time was involved. The trial judge gave rulings to the effect that it was reasonable for a juror or jurors to step out either to relieve themselves or to have a smoke or make a phone call and that this did not mean that they lost the impact of what was going on. He said that an inquiry had been made of him at some stage during the trial as to whether it was permissible for jurors to leave their room to go out for a smoke. The judge said that his understanding was this permission continued into the time when the jury were in deliberation. He said that he had said that it was and that he did not believe there was any failure or defect in the process as a result. In short, he did not think that the evidence amounted to a break in the jury deliberations. He expressed the view that it was a matter for the foreman of the jury, who was charged with conducting the business to say if proceedings were being substantially disrupted by jurors leaving for breaks. On 22 May, counsel sought to call a member of An Garda Síochána to give a breakdown of the period during which the jury were absent from the jury room. The trial judge refused. Section 25 of the Juries Act, 1976, as substituted by section 58 of the Civil Law (Miscellaneous Provisions) Act, 2008 provides:
(a) the jurors may, at any time before they retire to consider their verdict, separate unless the judge otherwise directs, and (b) the jurors may, after they retire to consider their verdict, only separate for such period or periods as the judge directs. (2) A direction under subsection (1)(b) may be given in respect of a jury whether or not the jury is present when the direction is given.”. Two decisions of this Court concerning alleged jury irregularities were cited. Both were decided prior to the enactment of the Act of 2008. In truth, only the second is directly pertinent to the question of separation of jurors which is suggested in this case. The first case is Director of Public Prosecutions v Gavin [2000] 4 I.R. 557. In that case, the conviction was set aside on other grounds, but the Court considered in addition that it had been wrong to allow the jury to continue its deliberations overnight in a hotel, since the purpose of providing hotel accommodation was to give the jury a chance to rest and recuperate from their deliberations. It is interesting, nonetheless, to note that an issue discussed in the case was whether a juror should be allowed home to milk his cows in the evening and in the morning. Great care was taken to ensure that the remaining jurors did not deliberate in his absence and the jury were so directed. In Director of Public Prosecutions v M.K. [2005] 3 IR 423, the trial judge had to consider a request from a juror that he be permitted, after the jury had retired, to retrieve his car from a car park. He granted permission for this purpose but gave no direction to the remaining jurors about whether they should deliberate in his absence. The judgment of the Court delivered by McGuinness J considered the evidence of what had occurred in great detail, but reached the conclusion that the Court had no clear evidence as to “exactly how long the juror in question was absent,” of whether he had returned prior to the giving of the majority-verdict direction or of whether the remaining jurors deliberated in his absence. Having referred to section 25 in its form as enacted in 1976 and to a number of English authorities, the judgment states:
The court was not prepared to engage in speculation about these matters. It gave its considered ruling as follows:
The Court rejects all grounds of appeal and dismisses the application for leave to appeal against conviction. | ||||||||||