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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Alex Freiberg [2010] IECCA 33 (17 May 2010)
URL: http://www.bailii.org/ie/cases/IECCA/2010/C33.html
Cite as: [2010] IECCA 33
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Judgment Title: D.P.P.-v- Alex Freiberg Composition of Court: Fennelly J., Budd J., O'Keefe J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Refuse leave to appeal | ||||||||||
COURT OF CRIMINAL APPEAL 306/08 Fennelly J. Budd J. O’Keeffe J. THE PEOPLE AT THE SUIT OF ApplicantTHE DIRECTOR OF PUBLIC PROSECUTIONS -v- ALEX FREIBERG JUDGMENT of the Court delivered on the 17th day of May, 2010 by FENNELLY J. The applicant was convicted by a jury at the Central Criminal Court on 17th December 2008 of the murder of Kieran Cambridge at Clonmel, Co Tipperary, on 16th September 2007. McCarthy J presided over the trial. It lasted 15 days. The applicant seeks leave to appeal. There are two principal and two subsidiary grounds of appeal. The central and main ground of appeal, certainly the one which took up most time at the hearing, amounts to an attack on the adequacy of the Garda investigation combined with the failure of the learned trial judge to direct the jury properly with regard to this matter. The complaint is essentially that the gardaí conducted a “single-track” investigation, concentrating only on the applicant from the moment that they had a complaint identifying him. The consequence, counsel says, was that there was a failure to investigate the potential involvement of another or others in the crime. The gardaí failed to produce any forensic evidence. To compound all this, it is argued that the learned trial judge erred in principle in directing the jury that these matters including the absence of any forensic evidence were irrelevant to their considerations as to the guilt or innocence of the accused. The second main ground is that the learned trial judge refused to direct the jury on the dangers of mistaken identification in circumstances where the main prosecution witness and the applicant were very well known to each other, having been engaged in an intimate relationship for several years. The first subsidiary ground is that the learned trial judge, having heard two medical witnesses, failed to adjourn the trial when pressed that the applicant was in need of a particular drug. This ground was not seriously pressed at the hearing of the appeal. The final, but also subsidiary, ground is that the learned trial judge ought to have discharged the jury when a prosecution witness, uninvited by counsel for the prosecution, gave hearsay evidence. The Nature of the Evidence Kieran Cambridge was stabbed to death in a bedroom at a council house, 69 Carrigeen, Clonmel, at a time which can be fixed to within about a half an hour between 2 and 3 am on 16th September 2007. The tenant of the house was Catherine Shanahan a woman in her early 30’s. She had had a relationship with the applicant between April 2004 and June 2007, when it came to an end. Subsequently she commenced a relationship with Mr. Cambridge. Mr Cambridge was from Cork. He had been back and forth between Clonmel and Cork from July to September. He had come to reside in the house a matter of days before his death. Ms. Shanahan gave evidence that the applicant came to the house and went upstairs to the bedroom to which Mr. Cambridge had retired. There had been a highly charged exchange of text messages between the applicant and Ms. Shanahan during the day of 15th September. In effect, Ms. Shanahan was the principal - counsel for the applicant would say the only - witness against the applicant. It was common case that there was no forensic evidence to support the case against the applicant. The facts, however, need to be considered in more detail in order to understand the grounds of appeal. Ms. Shanahan had known the applicant for many years. She had a son, Tom, born on 6th July 2002: the applicant was not the father but he became attached to and quite protective of him. She had a relationship with the applicant commencing in April 2004. She acquired the tenancy in the house at 69 Carrigeen in March 2007. The relationship with the applicant ended in June 2007. Ms. Shanahan had been abusing drugs: heroin, cocaine, speed, ecstasy. She went to a rehabilitation centre at Bruree, Co Limerick for about six weeks from June 2007. There she met Mr. Cambridge. They commenced a relationship after she returned to Clonmel at the end of July. He stayed with her there until about the end of August, when he returned to Cork. About a week before his death, Mr. Cambridge contacted Ms Shanahan. He returned to Clonmel and lived at 69 Carrigeen for the few days prior to his death. On 15th September, the applicant phoned Ms. Shanahan. She went to his flat in Clonmel. There was an extremely heated argument, principally about Ms. Shanahan's son, to whom the applicant had become attached. He complained that she was not attending properly to his welfare, principally because there was a lot of drinking at 69 Carrigeen. Ms. Shanahan became extremely upset and left the flat; she sat in her car outside. The applicant came out: he kicked in the wing mirror off the car and threw it at the car. This wing mirror was later retrieved by the gardaí. During the afternoon and evening of 15th September, there took place between Ms. Shanahan and the applicant an extraordinary exchange of text messages by mobile phone. Full of obscenities, reproaches and aggression, these expressed the passions of two people who had experienced an intensely passionate, but now broken, relationship. Ms. Shanahan, in evidence, stated that, in her relationship with the applicant, there was nothing unusual about these texts. Nonetheless, the applicant included in two of his messages words which can reasonably be and were interpreted by her as conveying threats. They are quoted in the text language in which they were sent. At 22.45.59 on 15th September, in one of the later messages, he texted:
When Ms. Shanahan returned to the house, she found Mr. Cambridge asleep in the bedroom. She went down to the sitting room and smoked. The applicant came in by the back door (which was not locked) carrying a knife - it might have been two knives - she was unsure. There has never been any clear evidence about the number or type of knife used and no knife was ever found. Ms. Shanahan swore that the applicant threatened her with a knife by holding it to her throat, pinning her against the couch. The applicant said that, if she said anything, he would kill her. He then ran upstairs. She heard shouting from upstairs, which she recognised as being from Mr. Cambridge. The applicant came down and left the house. Ms. Shanahan went up to the room where Mr. Cambridge had been sleeping. She found him still alive but “gurgling.” There was a lot of blood. She tried to ring an ambulance but failed. She phoned Mr. Lonergan. She went to a neighbour’s house. It is not disputed that Mr. Cambridge, in or about this time frame, suffered stab wounds from which he died. All of the foregoing is based on the evidence of Ms. Shanahan alone. Mr. David Sutton, Senior Counsel for the applicant emphasised that only she placed the applicant in the house. That is true, but there is other material evidence. Mr. John Crowe lived in the adjoining house, 68 Carrigeen. His bedroom adjoined that where Mr. Cambridge was sleeping. He was in bed after 2 am, when he heard Ms. Shanahan leaving with Mr. Lonergan. He recognised them from their voices. About ten to fifteen minutes later, he saw Ms. Shanahan returning in her car. A couple of minutes later, he heard muffled voices and then someone running up the stairs. He heard voices in the room which adjoins his own, where Mr. Cambridge was. He heard Mr. Cambridge speaking in his Cork accent saying: “What is going on here boy?” He heard a male voice saying in a Clonmel accent: “Stay down, stay down.” They seemed to be fighting. Next he heard someone leaping down the stairs. Then he heard Ms. Shanahan outside. She came into his house: she was screaming that Mr. Cambridge had been stabbed. Amy Darcy also lived there. She was Mr Crowe’s partner. She had gone into number 69 during the evening and had seen Ms Shanahan, Mr Lonergan and Mr Cambridge drinking at about 9 o’clock. Amy Darcy was asleep in bed when Mr Crowe woke her, saying that Ms Shanahan was at the door. She was hysterical, shouting that Mr Cambridge had been stabbed. Ms. Shanahan phoned Mr. Lonergan. That call was placed at 2:38. He described her as being hysterical “and roaring.” He went back by car to her house, getting there before the ambulance. He went up to the bedroom. Mr. Cambridge seemed to him to be dead. In the course of his evidence, uninvited by the prosecution, Mr. Lonergan said that Ms. Shanahan told him that the applicant had come back to the house and had run upstairs. This gave rise to an application for discharge of the jury. The refusal of the learned trial judge to discharge the jury forms one of the grounds of appeal. Mr. Crowe’s evidence was supported in part by that of Luke Sheehan, his brother, who was sleeping downstairs at no 68 and who, at about 2 am, heard footsteps running upstairs. Mr. Crowe, his partner Miss Amy Darcy and several others went into 69 Carrigeen. Mr. Crowe and Ms. Darcy went up to the bedroom with Mr. Lonergan. Ms. Darcy called 999 and asked for an ambulance. The call to the ambulance, which had been relayed via a centre in Wexford, was received in Clonmel at 2:57 am. The call was further relayed to Clonmel Garda Station at 3:02. The ambulance and the gardaí went to No. 69. The defibrillator used in the attempt to resuscitate Mr. Cambridge recorded a time of 3:14, implying that the ambulance had been at the house for some few minutes before. From initial observation by the ambulance men, Mr. Cambridge was unresponsive: there were no signs of life. There was a pool of blood on the bed and on the bed-clothing. He had lacerations and deep puncture wounds. They lifted Mr. Cambridge onto the floor to resuscitate him using the defibrillator, but without success. A doctor was called and pronounced Mr. Cambridge dead at 3:45. Garda Michael Hubbart and Sergeant Hearne arrived at the scene. They noted their arrival time as 3:15; the ambulance was already there. They found four people in the living room, namely Amy Darcy, John Crowe, Graham Lonergan and Catherine Shanahan, whose names were noted. A statement was taken from Ms Shanahan at about 4:15. The other three were kept under garda observation and were taken to the garda station where statements were taken from them. Garda Hubbart also noted a youth leaving the house: he was later identified as Luke Sheehan. He had gone into number 69 when Ms. Shanahan had raised the alarm. He left as the gardaí were arriving. All these four people were witnesses at the trial. It does not appear that any of them saw or noticed any other person in the area. No stranger or person out of place was mentioned or remarked upon. There was a garda presence at 69 Carrigeen from 3:15 am. The scene was maintained thereafter. Intruders were not allowed to enter. Samples were taken. Forensic examinations were conducted. Mr. Leonard Devine, an operator of a hackney service in Clonmel gave evidence that he received a call from the applicant, who was well known to him at a time which has been established by examination of Mr. Devine’s phone as 2:13. He collected him at his flat and drove him to a housing estate called the Wilderness. He left him at No. 76 The Wilderness. The point where he left him is some 200 metres from 69 Carrigeen. The applicant said that he might call him later. It was shown that Mr. Devine received a call from the applicant at 2:49, but Mr. Devine did not answer it. In fact, the applicant made a phone call to Mr. Thomas Guirey in the early hours of the morning. He wanted to be collected at the Wilderness. Mr. Guirey drove there and took him back to his (Mr. Guirey’s) own house rather to the applicant’s own flat nearby. Mr. Guirey said that the applicant should wash his clothes, because “they were kind of dirty.” He washed all of the applicant’s clothes including his shoes (runners) in his washing machine. The applicant slept in Mr. Guirey’s house. He was arrested there at about 6 am. Absence of forensic evidence Mr. Sutton laid special stress on the absence of any forensic evidence linking the applicant with the crime. The knife or knives used in the killing of Mr. Cambridge were never found. There was no fingerprint, DNA or other scientific evidence. Although Mr. Guirey’s car was examined a couple of days after the murder, nothing material was found. Nothing was found on the applicant’s clothing. More generally, the applicant mounts an attack on the competence of the garda investigation and claims that the learned trial judge failed to direct the jury on the issue of inadequate investigation and the absence of forensic evidence. In the view of the Court, the applicant has not established, even if that was relevant, to any degree that the garda investigation was incompetent or inadequate. Two particular points were advanced. Firstly, it was said that the gardaí conducted a one-track investigation. As soon as Ms. Shanahan named the applicant as the culprit, the gardaí confined their investigation to him. He was the chief - in effect, the only - suspect. It is true that Ms. Shanahan named the applicant from a very early stage: more or less immediately after the arrival of the gardaí. Detective Sergeant O’Riordan, one of the more senior officers in the investigation, was pressed particularly in cross-examination on this point. He said that the applicant was the main suspect, based on the statement of Ms. Shanahan, though he had an open mind. He insisted that he was fully entitled to treat the applicant as the principal suspect. The Court is satisfied that he was entitled to do so. The defence established that a surprising number of people, perhaps six or seven, were in the house at 69 Carrigeen, following the distressed complaint of Ms. Shanahan. They appear to have been neighbours responding to a distress call. Some of these went up to the bedroom where Mr. Cambridge had been stabbed. Perhaps all this raises the possibility of an alternative culprit. But all that was a matter for the jury. All these visitors were questioned by the gardaí and were called as witnesses. No scintilla of a suspicion was pointed at any of them. All of them explained their presence in the house. The defence did not seek to inculpate any of them. The whole picture was of people reacting to an appalling event and responding to the call of Ms. Shanahan. There is no evidence placing any of these people in the house prior to the alarm being raised by Ms. Shanahan. Mr. John Crowe was a crucial witness: he heard Ms. Shanahan leave with Mr. Lonergan and heard her return. As already stated none of these people gave evidence of seeing any other person or any stranger in the area at the relevant times. Insofar as forensic evidence was concerned, only one specific identifiable issue was raised by the defence. A partial footprint in blood was found on the duvet from the bed on which Mr. Cambridge had been stabbed to death. The footprint did not match with any print of the applicant; nor was it established that it matched the prints of anyone else. The court was informed at the hearing of the application that it did not match the prints of either of the two ambulance men. Thus, it was said, the gardaí had not conducted a sufficiently thorough investigation to exclude the possibility that there was some other intruder. The evidence of the two ambulance men was that they found the deceased on his bed. He was apparently dead, but they brought in a defibrillator to endeavour to resuscitate him. For that purpose he needed to be on a flat or hard surface. They lifted him from the bed onto the floor. The duvet was ultimately found on the floor. One of the ambulance men said that he could have caught his hand or possibly his shoe as he was moving the patient. Thus, any footprint would have been on the duvet when on the floor and necessarily after the stabbing. In any event, it is highly unlikely that a footprint in blood would have been placed on the duvet while on the bed by the assassin. In the result, this defence point is, at best speculative and was, in any event a matter for the jury. The more general premise of the defence argument is that the garda investigation was incompetent. The court is not satisfied that this was established in the evidence. The prosecution informed the Court that: questionnaires were circulated through the housing estate; that some 300 statements were taken; there was an extensive search of the area and waste ground; that some 27 hackney drivers were interviewed, resulting in the discovery of Mr. Devine, who became an important witness. Evidence was given of searches of the flat of the applicant, of 69 Carrigeen (including the area surrounding it) and of Mr. Guirey’s flat. There was extensive analysis of telephone traffic and, as already seen, of text messages. The learned trial judge directed the jury that there had been “teams of 12 to 14 [gardaí] for four to five days.” It is true that many questions were put in cross-examination as to lines of inquiry that were not pursued, tests not carried out and so on. It has not been shown, in the view of the court that any significant omission was established. In any event, all these matters were argued out before the jury and were for the jury to decide. Complaint is made that the learned trial judge directed the jury that whether or not the garda investigation was incompetent was “simply irrelevant to the case.” He told the jury:
The applicant also complains that the learned trial judge failed to direct the jury sufficiently as to the absence of any forensic evidence. It was, however, clear from the very outset of the trial that the prosecution was not offering any supporting forensic evidence of any significance whatever. Prosecuting counsel made that clear in his opening statement and it was common case throughout the trial. It is true that the learned trial judge made no general pronouncement on that issue. He did, however, in his detailed account of the evidence, on several occasions point out that there was no forensic evidence to link the accused with the crime. For example, in referring to the evidence of one Garda officer he noted that he had been asked to clarify the position in relation to the forensic science laboratory, he said that “it doesn’t seem to help us in any way, no evidential value emerged, in other words, against the accused.” The court is satisfied that the jury were sufficiently informed as to the absence of forensic evidence. The case was not presented on the basis of any scientific or forensic evidence. It depended crucially upon the evidence of Ms. Shanahan. The respects in which there was support for part of Ms. Shanahan’s story have been summarised above. There was compelling evidence that the deceased met his death within a short period of time between approximately 2 am and 3 am. Ms. Shanahan’s account of the applicant running up the stairs is supported by what was heard by Mr. Crowe and Mr. Sheehan through the wall between the two houses. Most importantly, there is evidence of the person who drove the applicant to a point very near the house and of the person who drove him away. Finally, there is the evidence of the use of words in the text messages which the jury were entitled to interpret as threats. In other words, there was a strong case against the applicant, provided the jury believed Ms. Shanahan. Counsel for the applicant next complains that the learned trial judge was wrong in law in refusing to direct the jury as to the dangers of relying on identification evidence in accordance with the decision in People (Attorney General) v Casey (No. 2) ]1963] I.R. 33. The court is satisfied that the learned trial judge was correct. This was not a case of identification. Ms. Shanahan knew the applicant intimately. She had conducted an intimate relationship with him and had met and quarrelled with him the day before. The fact that there was no question of doubtful identification is demonstrated by the fact that the defence cross-examined her on the basis that she was lying. The application is, finally, grounded upon the evidence of a defence witness who said that, on a later occasion, Ms. Shanahan, in seeking to explain her subsequent meetings with the applicant, suggested that the culprit might have had his face partially covered. This was not, of course, at all the basis of the evidence given by Ms. Shanahan. It was a straightforward case of someone she knew very well coming into the house and even threatening her with a knife. This evidence was either true or not true. That was the only basis on which the case was put by the prosecution. The judge was right to leave it to the jury on that basis. A third ground of appeal was not pressed and rightly so. An issue was raised during the trial as to whether the applicant was fit to continue, because he had been deprived of a particular drug which he said he needed in order to calm him. Firstly, the applicant made it clear at the time that he did not wish to have the trial postponed. Secondly, the learned trial judge had the benefit of hearing the evidence of two medical experts, both of whom swore that the applicant was not in need of the drug. The learned judge was entitled to accept this evidence. Finally, it was submitted that the judge ought to have discharged the jury when Mr. Lonergan incorrectly, but in one sentence, gave evidence that Ms. Shanahan had told him, when he got back to the house at number 69 Carrigeen that the applicant had come back to the house. This evidence was not led by the prosecution. The judge declined an application for the discharge of the jury. In the view of the court, this was a matter within his discretion. He was the best judge as to whether, in all the circumstances, evidence had been given which would unfairly prejudice the trial. He directed the jury that the remark in question did not amount to evidence and that they were to ignore it. He was entitled to conclude that this was sufficient and that the jury would take heed of it. The evidence, in any event, was identical in its effect to the evidence, given to the jury, that Ms. Shanahan had told the gardaí about the applicant's return to the house, going upstairs and so on. The court is satisfied that none of the grounds of appeal have been made out. It dismisses the application for leave to appeal. | ||||||||||