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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Anthony McDonagh [2010] IECCA 127 (01 November 2010)
URL: http://www.bailii.org/ie/cases/IECCA/2010/C127.html
Cite as: [2012] 1 IR 49, [2010] IECCA 127
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Judgment Title: DPP -v- Anthony McDonagh Composition of Court: McKechnie J., Budd J., O'Keeffe J. Judgment by: McKechnie J. Status of Judgment: Approved
Outcome: Appeal v Conviction Refused | ||||||||||
THE COURT OF CRIMINAL APPEAL C.C.A. No. 296/08 MCKECHNIE J. BUDD J. O’KEEFFE J. The People (at the suit of the Director of Public Prosecutions) RESPONDENT AND Anthony McDonagh APPELLANT JUDGMENT of the Court delivered the 1st day of November, 2010, by McKechnie J. Mr. McDonagh, the appellant in this case, was charged with the following three offences as set out in the indictment; count no 1: possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act, 1925, as substituted and inserted by s. 43 of the Criminal Justice Act 2006, and as amended by s. 35 of the Criminal Justice Act 2007; count no 2: possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act 1925, as amended in the manner herein described, and; count no 3: causing serious harm contrary to s. 4 of the Non Fatal Offences against the Persons Act 1997. The appellant was arraigned on 18th November, 2008, and entered pleas of not guilty in respect of each count. The trial, before his Honour Judge Groarke sitting at Galway Circuit Criminal Court, commenced immediately thereafter and concluded on 27th November, 2008, when the jury by unanimous decision returned a verdict of guilty on all charges. The learned trial judge sentenced Mr. McDonagh to 12 years imprisonment on each count, all to run concurrently and to commence as and from the 24th April, 2008. In his notice of appeal dated 17th December, 2008, the appellant seeks leave to appeal against conviction on the several grounds therein specified. At the appeal hearing, only five such grounds were advanced in support of his application. By reference to the original numbering in the notice of appeal, the court proposes firstly to deal with ground No. 4. This ground arises out of a ruling made by the trial judge to the effect that a certain “remark” or “comment” allegedly made by Mr. McDonagh to Detective Garda Moran was admissible and therefore was available for the jury’s consideration. The charges in question arise out of a shooting incident which took place on 18th April, 2008, at Whitestrand Road in Galway. As a result of that incident and of the Gardaí’s assessment of the information obtained during the follow up investigation, it was decided that an armed unit would patrol Whitestrand Road and the surrounding area in the period immediately following. On 22nd April, 2008, Detective Garda Moran called to the house of Mr. McDonagh at about 12.20 p.m. and was invited in. Mr. McDonagh, who was alone, appeared agitated and concerned, in particular about the fact that members of the extended Ward family were driving up and down outside his house and had been doing so for some time. After about five or six minutes in the house, the evidence given to the jury was that Mr. McDonagh said to Detective Garda Moran “I am fucked, what sentence will I get?” Almost immediately after the making of this alleged comment, Mrs. McDonagh and her daughters returned to the house. The family were quite unhappy at the level of protection in place and accused the Gardai of not doing enough to help them. Remarks were made to the effect that the Gardai, in light of what was going on in the locality, including the activities of the Wards, were not providing sufficient security for the McDonaghs. Because of the family’s unexpected arrival back and the hostile atmosphere thus created, Detective Garda Moran left the house without having entered in his notebook the remark attributable to Mr. McDonagh. Once outside the house he immediately noted down the following:
At interview the following day, the 23rd April, 2008, Detective Garda Moran did not have his notebook with him: however as part of the interview process he put to Mr. McDonagh a different version of the remarks which are quoted above. He said to Mr. McDonagh that he had spoken to him yesterday and that “you asked me what sentence will I get for the shooting. Why did you ask that question?” The accused denied ever making such a statement and called the allegation a lie. An issue as to the legal admissibility of this alleged remark arose during the course of the trial and the trial judge, having heard submissions, ruled that the comment was in fact admissible and was available for the jury’s consideration. It is alleged on behalf of the appellant that this ruling constituted an error of law. The reasons relied upon in this regard, on this appeal, replicated those which formed part of the submissions made to the trial judge. In summary form these can be outlined as follows. Detective Garda Moran was a member of the investigating team since 19th April, 2008. He knew that the accused person had been arrested and was a suspect, but that no admissions had been made by him. As an experienced officer, the appellant contends that Detective Garda Moran should have issued a caution immediately on entering the house on 22nd April, 2008. He did not do so nor did he issue a caution after the alleged remark was made. Moreover, he did not note down the remark until he had left the house, did not read the entry back to the accused and evidently did not invite him to sign or otherwise comment on it. At interview on 23rd April, 2008, the Detective Garda put to the accused the words described at para. 6 supra, which are quite different to what it is alleged were previously uttered and noted in the notebook. Further, it was only when faced with evidence from a video recording of the interview conducted on 23rd April, 2008, that the Detective admitted saying that he had returned to McDonagh’s house on a number of further occasions on 22nd April, 2008; whereas initially he had denied that this was so. Given that at all stages, the appellant denied ever making such a statement, it is submitted that it would be dangerous in the circumstances to allow the evidence to go before the jury. Counsel for the appellant contends that it is self evident that there had been breaches of the Judges’ Rules. The D.P.P., in response, suggested that although a member of the investigation team since 19th April, 2008, the Detective Garda was not acting as such when he visited Mr. McDonagh’s house on 22nd April, 2008. He was there and elsewhere in the general area as part of an armed patrol on protection duty in response to concerns which had been expressed for the safety of Mr. McDonagh. He was not, at that time, endeavouring to discover the author of the crime nor was he furthering the investigation into it. Consequently the Judges’ Rules did not apply. In any event, the D.P.P. submits that the remark in question was blurted out without any forewarning and in circumstances where there was no opportunity to issue a caution. Whilst the accused should have been cautioned immediately thereafter, there was a good explanation why this had not occurred. It related to the return of Mrs. McDonagh and her family, who were quite agitated and hostile. They were not satisfied with the level of Garda protection then in place. It was because of the resulting atmosphere that no such caution was issued and that the remark was only been entered in the notebook once the Garda had left the house. It should be noted that such remark was put to Mr. McDonagh within 36 hours of its alleged making. In those circumstances the D.P.P. contends that it was perfectly safe to allow such evidence to go before the jury. In his ruling, the trial judge stated that, on the occasion in question the Detective Garda was not part of the investigation team, that he was not actively involved in the investigation and that his concern was for the maintenance of law and order. In furtherance of that purpose, the Gardaí had visited many houses in the locality, including that of the McDonagh’s. The judge accepted the evidence of the Gardaí that such remark was blurted out in circumstances which presented no opportunity to issue a caution prior to that occurring. Moreover, he accepted the explanation as to why the remark had not been noted by the Detective whilst within the house and also why no caution had been administered after the remark was made. Whilst the learned judge expressed concern on the issue as to whether or not the Detective had returned to the McDonagh’s house later that day, he was nonetheless satisfied, having referred to The People (D.P.P.) v. Pringle (1981) 2 Frewen 57, that the remark had been accurately noted by the Gardai and that the accused had an opportunity of commenting upon it a mere 36 hours later when the remark still should have been fresh in his mind. He therefore concluded that such evidence was admissible, that no injustice resulted for the accused and that the procedures involved were fair. The determination of this Court on the issues raised are as follows. Firstly, this Court is perfectly satisfied that the trial judge, on the evidence, was entitled to come to the conclusion that, although part of the investigation team since 19th April, 2008, Detective Garda Moran was not, on the occasion of the 22nd April, 2008, acting as such when in Mr. McDonagh’s house nor was he endeavouring to further the investigation. His presence was part of a security team, whose purpose was to establish a visible appearance in the area as a means of offering protection, in particular to the McDonaghs, but also to others in the locality generally. This finding, which is entirely supported by the evidence, is of significance as it informed some of the other conclusions reached by the trial judge. Secondly, it seems quite apparent from the circumstances as outlined in the evidence, that Detective Garda Moran had no opportunity of issuing a caution to Mr. McDonagh before the alleged remark was made. It is clear that the accused person suddenly and impulsively made such remarks without being invited or encouraged to so do, and did so, without forewarning or otherwise indicating any intention that he was thinking of doing so. As the Detective Garda said, he “did not know where the accused was coming from”. During the course of the evidence, he acknowledged that he ought to have cautioned Mr. McDonagh at the time: however he offered the events above described as an explanation for not doing so. In those circumstances this Court is satisfied that the absence of such a caution does not undermine the admissibility of such remarks. Finally, in this context, the suggestion that a caution ought to have been given after the remarks were made has no material effect on the case in that nothing was said or done, in the immediate aftermath, which led to any evidence being offered against Mr. McDonagh. The appellant also complains that the Detective should have noted the remark immediately on its making, read the entry back to the accused and invited him to sign it. Again none of these matters occurred, for the reasons explained above. In this context, the issue as to whether or not the Detective returned to Mr. McDonagh’s house on 22nd April, 2008, is of some relevance. At all stages, the Detective has denied that he did so. However, he is heard in the video recording of the interview held on 23rd April, 2008, as saying that he did. He acknowledges this statement as being his. The importance of this, it is submitted, is that if the Detective had returned to the house, he should have taken the opportunity of reading the remark back to the accused and inviting his observations on it. Having considered the evidence, the trial judge concluded that he was not in a position to say whether, as a matter of fact, the Detective had returned to the house on the 22nd April, 2008. Likewise, despite what Mr. McDonagh had claimed, he could not conclude that the accused was at home or otherwise was in the vicinity for the purpose of having the note read over to him, even if the Detective had returned as alleged. These findings by the trial court, are based substantially, if not totally, on the credibility of the evidence given in the voir dire, in particular that of Detective Garda Moran, who the trial judge had an opportunity of closely observing at first hand. As such, we must respect these findings and proceed on the basis that the evidence was either insufficiently clear or complete, so as to enable the trial judge to make findings on these issues. In any event, it is a matter of some significance that, while still fresh in his mind, the Detective Garda put the essence of the remark to Mr. McDonagh, at interview within 36 hours of its making. The making of the remark was denied and repeatedly so. In the above circumstances, the Court is satisfied that the remarks were not made in the contextual framework envisaged by the Judges’ Rules. Even if they were, however, the resulting non-compliance, when the evidence is looked at as a whole, is not of such a nature as to render the statement inadmissible. The second ground of appeal is related to ground No. 1 and is to the effect that, during his charge, the trial judge, when making reference to the above remarks (or “statement”) and how they might in fact deal with them, effectively told the jury that he had made a prior ruling of law, the consequences of which was that the statement was admissible and thus available for their consideration. It is submitted on behalf of Mr. McDonagh that this is contrary to practice and that a trial judge should never inform the jury of any such ruling which he had been called upon to make, certainly not one dealing with the admissibility of evidence. Apparently there is no authority in this jurisdiction on the point, but the diligence of counsel has unearthed the English case of Mitchell v. The Queen [1998] 2 W.L.R. 839, where the Privy Council, on facts not dissimilar to the instant case, made certain observations which were read in extenso to this Court on the undesirability of trial judges informing a jury of any prior ruling of law made or of the reasons for it. As stated at pp. 845 and 846 of the report, the purpose of the rule is to avoid any possible risk of prejudice to a defendant, in that a jury might interpret what was said as a confirmation of the judge’s personal position, with regard to the subject matter of the ruling: as applied to this case, an acceptance that the statement was made and that its contents were true. It is claimed that, by reason of what he said, the trial judge erred in this regard: therefore quite clearly Mr. McDonagh was prejudiced in that, at least potentially, the jury may have believed (even wrongly) that the trial judge was siding with the Gardaí on both the making of the statement and of its truthfulness. To evaluate this submission, it is necessary to have regard to what precisely the judge said in this respect. The relevant passages are to be found on pp. 105 and 107 of the transcript Day 6, wherein the trial judge said (that):-
It is perfectly clear from that passage, when read against the background of the evidence as a whole, that the vice or potential prejudice mentioned by the court in Mitchell was not thereby created. It is evident in this Court’s view, that the trial judge on more than one occasion effectively directed the jury to disregard the impugned statement if the prosecution had not satisfied them as to its making and veracity, beyond a reasonable doubt. He dealt with both aspects: the first was whether or not it was said, and the second, whether or not it was true. Therefore, on the facts of this case, we do not believe that the submission made under the heading, of ground No. 5, is sustainable. This conclusion is case specific: the Court’s position on the general issue is next outlined. Whilst the above view determines that issue for the purpose of this case, it may be of some general importance to state that this Court endorses, in principle, the decision in Mitchell. It is now well recognised, and has been for many years, that the role which a voir dire plays is an important part of the criminal process and is designed to ensure that the accused person obtains a constitutionally protected trial. When invoked, the function of the trial judge is quite different to that when a jury is in session. In effect, he becomes a decision maker of both fact and law. On its conclusion he or she, relative to the factual conflict, gives way to the jury. Such matters are entirely within their remit and judicial trespassing in this area is strictly forbidden. Notwithstanding this, it is self evident that in view of the overall responsibility which a judge is called upon to discharge during a trial, a jury of lay individuals may be apt to confer on any view expressed by the judge, an importance, even a status, which may undermine the independence of their collective view, which is the hallmark of the jury system. If such was to occur, the risk of prejudice is almost inevitable. Therefore, even when a judge engages with the facts, he or she must emphasise, with particular care, that the views expressed may be entirely ignored and that, “fact”, is purely and exclusively a matter for the jury. In a case where a legal issue arises, the same may have to be dealt with in a voir dire. The jury has neither an interest in, nor a role to play in, that part of the trial. The result is what matters, not the preceding legal argument or the reasons why the trial judge concluded as he did. On a straightforward issue of the admissililty of evidence, the voir dire will decide whether what is disputed will go before the jury or not. The decision is purely a matter for the judge. As the Privy Council in Mitchell said, at pp. 845-846:-
We are entirely satisfied that this is correct and that the same represents what the law is in this jurisdiction. Therefore, it is far more preferable that no such explanation be given to the jury, as otherwise a risk of prejudice, unnecessarily created, may be established on review. Unless, therefore, there are some exceptional reasons, arising out of specific circumstances which, in the interests of a fair and proper trial demand that the jury receive some information about what previously had occurred, no reference to the voir dire, should be made. The next ground of appeal relates to the manner in which the learned judge dealt with the issue of recognition. In this case, evidence of identity was effected by way of recognition. This matter was dealt with by the trial judge in his charge to the jury at pp. 74 and 75 of the transcript, Day 6. The judge, apparently with the agreement of Counsel who appeared on behalf of Mr. McDonagh, pointed out that this was not a case of identification as normally understood, but rather was one of recognition. In explaining the difference, he recalled that the relevant prosecution witnesses had stated that they recognised the gun man as being Mr. McDonagh, which is in sharp contrast to a situation where such witnesses had never seen the accused person before. He then informed the jury that the law recognises that people make mistakes about identification and consequently that juries must be told that they must be particularly careful when considering evidence of identification, before being satisfied that the accused person was correctly identified by such evidence. The learned judge went on to say that the law in this area had been established conclusively in People (Attorney General) v. Casey (No. 2) [1963] I.R. 33. At p. 75 of the transcript, Day 6, he quotes in extenso the relevant passage from Casey: (pp 39/40 of the report), which passage, although read verbatim, must be viewed against the other instructions given earlier by the judge (para. 26 supra). Therefore, it cannot be said that he simply read a formula without explaining to the jury what was behind it or without explaining why the experience of the court has compelled it to make a rule of law in that regard. The charge continued at p. 84 and going right through to pp. 86, 87, 88 and 89 of the same transcript, references are made in minute detail to all of the material evidence as tendered and to the surrounding circumstances which were relevant, to the issue of identification. The trial judge does so from the prosecution’s point of view and also from the point of view of Mr. McDonagh, taking particular care, in this Court’s opinion, to identify and then refer to, by name, occasion, event and circumstance, anything which might establish a doubt or otherwise be relevant to the jury’s assessment of the overall evidence given on this issue. In such circumstances there was no further obligation on the trial judge to give a more refined or a more elaborate warning to the jury. As stated, he outlined the background which put the passage from Casey into context. In addition, as stated, it is beyond question but that he went through the evidence, in considerable detail. Accordingly, having regard to these matters as well as noting the proximity of where in the charge the law was related to the evidence, there was, in our view, no additional obligation on him to go further than what he did, in the warning he gave to the jury. We therefore believe that this ground of appeal must fail. The next ground of appeal can conveniently include the arguments addressed to the presumption of innocence, the onus of proof, the standard of proof and the question of circumstantial evidence. When considering the presumption of innocence, the onus of proof and the standard of proof, it is very important to have regard to the totality of the charge which the trial judge gave in this case. If one looks at the transcript of Day 6, at pp. 69 and 70, the learned judge stated that:-
Immediately prior to making the above statement, the trial judge told the members of the jury what standard should be applied. He did so by contrasting the balance of probability with the obligation of proving beyond a reasonable doubt, using in the process, straightforward language which the jury could readily comprehend. He gave examples to help them with this task. At the end of p. 70 he said that, “you have to be convinced that this is so” ; a remark made in the context of giving as an example of the contrast which he was dealing with, a decision to move from one country to another. He concluded on this aspect of the charge by stating:-
Before dealing with the issue regarding circumstantial evidence, there is one further aspect of the cumulative grounds last mentioned which should be disposed of. There is no doubt but that The People (A.G.) v. Byrne [1974] I.R. 1 accurately sets out the type of direction which a trial judge must give to a jury, when dealing with a situation where two views on any aspect of the evidence, is possible. It has always been this Court’s understanding that a trial judge should inform a jury that, if there are two versions of events reasonably available from a given set of circumstances, then they must adopt the version most favourable to the accused person unless they are convinced that the other version has been proven beyond a reasonable doubt. This Court does not for a moment accept that the trial judge fell short of making that distinction in the relevant part of his charge. It has always been accepted that a trial judge is free to express basic principles in his own way, provided of course that the essence of what he conveys leaves the jury in no doubt as to the correct rules which they must apply in evaluating the evidence presented to them. In this case, when one looks at the totality of the charge in relation to this particular point, we do not believe that the jury could have been misled, in any way, as to what rule they should apply when faced with such circumstances. The question of circumstantial evidence and the manner in which the trial judge dealt with it remains to be examined. This issue arises at pp. 75 and 76 of the transcript, Day 6, and also at p. 100. Objection is taken on a basis which has been previously dealt with, namely the instruction to the jury on the question of drawing inferences where there might be more than one reasonably available. It is also said that the trial judge used language such as a “version that you might find convincing”, which might have given the jury the impression that the standard required is less than that demanded by the phrase beyond reasonable doubt. We do not accept the submission made on these matters, for the reasons above given. In addition, however, it is also pointed out that, at p. 76 of the transcript, the judge said the following:
It would undoubtedly appear to be the case that there is a more acceptable manner of describing circumstantial evidence than that outlined by the trial judge in the passage just quoted. This is apparent from a decision of this Court in The People (D.P.P.) v. Cahill & Anor [2001] 3 I.R. 494, where having traced the formulae used by the judge to a statement in Sandes’ Criminal Law and Procedure in the Republic or Ireland (Dublin: Sweet & Maxwell, 3rd Ed., 1951) at p. 177, the court went on to say that:-
We respectfully agree with this recasting of the description. Therefore, in all future cases, it would be more accurate to adopt the description given in Cahill than to use the phraseology favoured by the trial judge in this case; which hereinafter must yield to the passage as quoted herein. Having said that, however, the court must then ask itself whether, as against the entirety of the circumstances, including the rest of the evidence which was available, there is any question of that description in itself having a potential effect on the jury’s deliberation or on the authority of the verdict which it returned. In the opinion of this Court there is not. When viewed against the background of the entirety of evidence and when looked at in the context of the trial as a whole, we are satisfied that there is no danger or risk that such a passage, even though now superseded by a more accurate way of describing what the judge had in mind, had any effect on the soundness of the verdict. Consequently, this Court will refuse leave to appeal. | ||||||||||