Irish Court of Criminal Appeal

Judgment Title: DPP v Darragh Small

Neutral Citation: [2011] IECCA 4


Court of Criminal Appeal Record Number: 304/09

Date of Delivery: 02/17/2011

Court: Court of Criminal Appeal

Denham J.
Budd J.
Hanna J.

Application for a certificate pursuant to s.29(2) of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act, 2006

Between/

Ruling of the Court delivered on the 17th day of February, 2011, by Denham J.

1. On the 5th day of July, 2010 this Court delivered a judgment (ex tempore) on an application by Darragh Small, the defendant/applicant, referred to in this judgment as "the applicant", for leave to appeal against his conviction, of the 6th day of November, 2009, on a count of possession of a controlled drug with a value of €13,000 or more for the purpose of selling or otherwise supplying it to another contrary to s.15A and s.27 of the Misuse of Drugs Act, 1977 as amended, and the Misuse of Drugs Regulations, 1988 and 1993.

2. Counsel on behalf of the applicant submitted that the judgment of this Court in refusing the applicant leave to appeal his conviction involves a point of law of exceptional public importance and that it is desirable in the public interest that the applicant should take an appeal to the Supreme Court; that in order for justice to be done the significant point of law involved in the decision of this Court ought to be considered and determined upon by the Supreme Court.

3. Counsel on behalf of the applicant submitted that the point of law arising in this case is as follows:-

"Whether the test as enunciated by Geoghegan J. in The People (D.P.P.) v. McKevitt [2009] 1 IR 525 and applied by this Learned Appeal Court is a legally permissible and appropriate test to be applied in cases involving 'patently unfair procedures' as distinct from cases involving 'an alleged risk of unfairness' arising by reason of the non-disclosure to the defence of specified material."

5. During the trial an issue arose as to the key. The defence had not been informed of a visit by members of An Garda Síochána to Mitsubishi Ireland. On the 4th November, 2009, day 3 of the trial, counsel for the applicant stated that on the 3rd November, 2009 the solicitor for the applicant was made aware by Mr. Halligan of the Mitsubishi Ireland Corporation that three gardaí had called to him nine months earlier and had shown him a key. Counsel stated that the gardaí had been told it was not a Mitsubishi key. The visit by the gardaí and the conversation with Mr. Halligan had not been disclosed to the defence. The evidence of Garda Rogers was that he, and D/Sergeant O'Halloran, went out, in about December 2008, to Mitsubishi on the Naas Road and that they spoke to someone and showed him the key and they were told Mitsubishi did not make keys that short. Garda Rogers gave evidence that he never mentioned anything about a Renault key and he said he did not bring a blank key with him. D/Sergeant O'Halloran gave evidence and said he spoke to someone in Mitsubishi and that Mr. Halligan said that Mitsubishi use longer keys. It was the blade of the key that was examined by Mr. Halligan. Detective Sergeant O'Halloran said he never said it was a Mitsubishi key. He said that the key which the applicant threw on the pathway opened the white van and operated the ignition. Mr. Halligan was unable to attend court to give oral evidence at short notice because of a hospital appointment. It was at this stage that an application for a direction was made by counsel for the defence seeking an adjournment of the trial or an order to discharge the jury because of the unavailability of oral evidence by Mr. Halligan. This application was refused by the learned trial judge.

6. The learned trial judge ordered that the trial proceed.

7. The white van had been an aspect of the investigation when the applicant was first arrested. Questions were put to the applicant about the van. The applicant and the defence were contacted in the months prior to the first trial and told that the van would be returned if so wished or was available for examination. The van was then destroyed on full notice to the defence. Thus no key could now be tested in the van.

8. This is the third trial of the case. During the course of the first trial, which took place after the white van had been destroyed, the defence called a witness to say the key was a Renault key. In the course of the second trial, anticipating that the issue might arise, the gardaí were invited to go and speak to somebody from Mitsubishi, to see if they could comment on the key. It appears that the evidence would be that Mitsubishi did not make a key that long. That information was given to prosecution counsel. Unfortunately she cannot recollect whether she passed that information on to the defence team.

9. Detective Sergeant O'Halloran gave the evidence that the key worked to open the door and to operate the ignition of the white van.

10. The learned trial judge pointed out that there was a submission to the Court that Mr. Nick Halligan in Mitsubishi informed the solicitor for the defence that it was not a Mitsubishi key, that Mitsubishi do not make keys that short, but that the real issue in the case was not whether it was a Mitsubishi key or a Renault key, but rather the issue was really whether the key started the van or not. She stated:-

"But the issue in this case isn't whether it was a Mitsubishi key or a Renault key, the issue is whether that key started the van or not; all right? So, whatever … whether it is a Mitsubishi key or a Renault key is not of importance. The key … the fact is that Garda O'Halloran said that that key opened the door and started the van. Now, whether the prosecution should have put it … reduced it in writing and given it to the defence, whatever their information was from Mitsubishi Ireland, apparently they did so in one trial and its unclear whether that was given to the defence or not, but that’s the issue in the case."

11. On the 5th July, 2010 it was submitted on behalf of the applicant, when seeking leave to appeal against his conviction, that the prosecution, whether by accident or design, had failed to disclose to the defence the fact of the outcome of a visit by Garda Rogers and D/Sergeant O'Halloran to Mr. Nick Halligan at Mitsubishi House, Naas Road, Dublin, sometime between nine months and a year prior to the trial. It was submitted that this visit concerned the nature of the key allegedly coming from the applicant and used by D/Sergeant O'Halloran to open and start the Mitsubishi van, from which two rolls of tape were recovered and which were offered in evidence as being similar to the tape around the packaging of drugs, and thereby linking the applicant with the drugs. It was submitted that the late disclosure during the trial of this visit and the results of same were such as to entitle the applicant to have Mr. Nick Halligan attend at court to be examined and cross-examined before the jury on the content of his letters and such other matters as might arise, and that the learned trial judge erred in refusing to discharge the jury when advised that Mr. Halligan could not attend the trial due to an imminent hospital admission. It was submitted further that the applicant's right to call a witness whose intended evidence was relevant ought not to have been set aside by reason of the failure of the prosecution to disclose in adequate time the meeting between Mr. Halligan and two investigating gardaí, in circumstances where the gardaí took it upon themselves to advise the witness that he would not be required to attend the trial and where they had failed to secure the key given to them by him.

It was submitted that the letter from Mr. Halligan was not a contemporaneous record, but was written from memory on the 4th day of November, 2009 and offended against the hearsay rule, and was not admissible under the exceptions provided for in the Criminal Evidence Act, 1992. It was submitted that the learned trial judge in compelling the defence to choose between the letter from Mr. Halligan or no evidence at all was manifestly unfair and all this resulted in a breach of the hearsay rule. It was submitted that the absence of the opportunity for the jury to see and hear Mr. Halligan giving evidence was adverse to the interests of the applicant.

12. The learned trial judge refused to ask the jury to acquit by direction of the trial judge; and she refused to withdraw the case from the jury.

13. Counsel for the applicant submitted to the learned trial judge that as Mr. Halligan could not be in court, that this put them in a serious position as they needed him to be there. There were two matters – Mr. Halligan said it was a Renault key and gardaí said he did not say that, and there was a blank key given by Mr. Halligan but left at reception. Counsel for the prosecution suggested Mr. Halligan put something down in writing. Counsel for the applicant said he would put this to Mr. Halligan.

Counsel for the applicant stressed several times that the applicant was entitled to viva voce evidence. However, Mr. Halligan was asked to reduce his evidence to writing - essentially his opinion that the key could not have opened a Mitsubishi. The garda evidence was that the key did both open the white van and start the engine. Counsel for the applicant stated that he was not conceding at all that a written statement would be sufficient. Indeed it is clear that he reiterated several times that there was an entitlement to have Mr. Halligan present to give verbal testimony in the witness box. The learned trial judge adjourned the trial, to facilitate the obtaining of a written statement from Mr. Halligan, who could not attend court because of his need to attend hospital the next morning.

14. On the 5th November, 2009, Counsel for the applicant informed the trial court that Mr. Halligan had been kind enough to give them a letter, a copy of which he handed into court. Counsel for the Director consented to counsel for the defence reading the letter to the jury as evidence. Both counsel indicated that they did not wish to "crash" the trial for little or no reason. However, Counsel for the applicant renewed his application to discharge the jury due to the absence of Mr. Halligan and his verbal testimony. The learned trial judge ruled:-

"JUDGE: No, I'm – it's my function to ensure a fair trial. It's my function to ensure that no prejudice attaches to Mr. Small. The matters that are in issue here and there is even contradictions in the guard's evidence just whether one fellow got a cup of tea and one fellow didn't get a cup of tea or whether a blank key was taken. They're not really central to the issue in this case; all right? And this matter can be addressed by the reading of the documents, right, but we're not going down these avenues and I'm going to – I don't think it's a proper case to ask for a discharge of the jury and we'll begin now. Okay? Thank you."

15. Counsel for the defence dealt with the letter from Mr. Halligan before the jury in the following manner:-

"The Court will be aware that there is a difficulty in Mr. Nick Halligan, the service manager with Mitsubishi Ireland, attending here today because of an illness and his requirement to attend hospital. Rather than delay the progress of the Court or as a matter end here, so to speak, and necessitate a re-trial the – a letter has been written by him for the assistance of the jury and the Court and my friend is accepting it as evidence in the case, Judge. So, I'm going to read it, with the Court's permission, to the jury. And it's from MM Commercial Distributor for Mitsubishi, Mitsubishi House, JFK Drive, Naas Road, Dublin 22. It's from Mr. Nick Halligan, who's the service manager and it's for the attention of Ms Orla Farrelly the solicitor for the accused. It's dated the 4th November 2009 and it says, 'Dear Orla, in relation to our earlier conversation regarding a key for a Mitsubishi Canter, please find below my report on the matter as I recall it. Approximately nine months to a year ago, I had a visit from three gardaí. One female and two male gardaí, with a view to recognising an ignition key for the above Canter. They produced a key with a Renault logo on it and they queried if this key could start a Mitsubishi Canter. I replied 'I doubt it'. I then proceeded to get a blank key from our spare parts department to carry out a comparison between the two keys. I explained that each key has its own code to suit each individual vehicle. I also explained that just by seeing a key visually, it wouldn't be possible to recognise an individual key with the volume of Mitsubishi Canters on the roads. I gave the female garda the Mitsubishi blank key with a part number attached for reference only. We then had a cup of tea and I enquired if I would have to attend a court sitting and I was told that it might be a possibility in the future. The gardaí consulted with each other and I was then informed that I would not have to attend a court sitting.' And that's signed Mick Halligan, service manager."

16. The letter was read out by the learned trial judge also, in her charge to the jury.

17. Mr. David Murray, a defence witness, gave evidence. This included his view that the key found at the scene was compatible with being a Renault key.

Decision
18. The Court is satisfied that in all the circumstances this is not a case of "patently unfair procedures". (i) This was a third trial. (ii) Through no mala fides on the part of the prosecution, the defence did not learn of the visit of gardaí to Mitsubishi about the key until the trial had commenced. (iii) The issue of Mr. Halligan's evidence arose, and it transpired, through no one's fault, that Mr. Halligan would not be available to give oral evidence during the trial. (iv) The learned trial judge analysed the evidence in issue and its relevance to the case and decided not to discharge the jury. (v) The nature of the evidence and its relevance was expressly addressed by the learned trial judge. As the evidence was that of a witness to be called by the defence there would be no question of the defence cross examining the witness – the issue was that counsel for the applicant sought the evidence to be given orally. (vi) Having refused applications to discharge the jury, the learned trial judge adjourned over night so that Mr. Halligan could write a letter as a statement of his evidence for the trial court. This was read to the court by counsel for the defence. This facilitated the defence. (vii) The evidence in the letter supported the evidence of the defence witness Mr. Murray. (viii) The evidence was given in circumstances where the key was not a vital matter of evidence; nor could the key be tried in the white van, either in the door or the ignition, as the absence of the van was a consequence of the consent of the applicant and his counsel to the destruction of the van prior to the first trial. (ix) The Court has noted carefully counsel for the applicant's repeated requests for a discharge of the jury in the matter. (x) The Court accepts that counsel for the applicant's first choice was for oral evidence from Mr. Halligan and that it was only on the refusal to discharge the jury that counsel for the applicant took steps to present the applicant's case by arranging for the letter from Mr. Halligan and reading it to the court. This was an appropriate professional approach of counsel in the circumstances. (xi) The Court is satisfied that this process, in all the circumstances and on the facts of the case, was not a patently unfair procedure. (xii) The learned trial judge managed the trial in a fair manner in all the circumstances of the case. The factual situation and all the circumstances were such that it was within the discretion of the learned trial judge to refuse to discharge the jury. The admission of the letter from Mr. Halligan in the circumstances was not an unfair procedure arising as a consequence of that decision. Rather, in the circumstances, it represented a pragmatic and proper logistical approach of fairness and practicality.

19. The Court is satisfied that the case does not involve a point of law of exceptional public importance and finds that it is not desirable in the public interest that an appeal be taken to the Supreme Court. Consequently, the application for a certificate is refused.