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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Sharon Collins [2011] IECCA 64 (19 October 2011)
URL: http://www.bailii.org/ie/cases/IECCA/2011/C64.html
Cite as: [2011] IECCA 64
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Judgment Title: DPP -v- Sharon Collins Composition of Court: Finnegan J., Budd J., O'Keefe J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Leave to appeal v conviction refused | ||||||||||
COURT OF CRIMINAL APPEAL Record No. 254/08 Finnegan J. Budd J. O’Keeffe J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT .v. SHARON COLLINS APPLICANT Judgment of the Court delivered on the 19th day of October 2011 by Finnegan J. The Applicant The applicant was charged on six counts and convicted on the same. The counts were as follows:- Count No. 1 Statement of Offence Conspiracy to murder contrary to common law and section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins and Essam Eid did between the 1st day of August 2006 and the 26th day of September 2006 within the jurisdiction of the Central Criminal Court conspire together to murder within the State Robert Howard. Count No. 2 Statement of Offences Conspiracy to murder contrary to common law and section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins and Essam Eid did between the 1st day of August 2006 and the 26th day of September 2006 within the jurisdiction of the Central Criminal Court conspire together to murder within the State Niall Howard. Count No. 3 Statement of Offence Conspiracy to murder contrary to common law and section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins and Essam Eid did between the 1st day of August 2006 and the 26th day of September 2006 within the jurisdiction of the Central Criminal Court conspire together to murder P.J. Howard. Count No. 4 Statement of Offence Soliciting to murder contrary to section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins on or about the 15th day of August 2006 within the jurisdiction of the Central Criminal Court solicited Essam Eid to murder Robert Howard. Count No. 5 Statement of Offence Soliciting to murder contrary to section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins on or about the 15th day of August 2006 within the jurisdiction of the Central Criminal Court solicited Essam Eid to murder Niall Howard. Count No. 6 Statement of Offence Soliciting to murder contrary to section 4 of the Offences Against the Person Act 1861. Particulars of Offence Sharon Collins on or about the 15th day of August 2006 within the jurisdiction of the Central Criminal Court solicited Essam Eid to murder P.J. Howard. The applicant gave notice of application for leave to appeal in respect of each of the said convictions. In advance of the hearing the Director of Public Prosecutions indicated to the court that the grounds of appeal relating to the applicant’s convictions for conspiracy to murder were not being opposed. This application accordingly is concerned only with the applicant’s conviction on counts 4, 5 and 6 set out above. Facts not in controversy on the application Sharon Collins was born on the 11th May 1963 and grew up in Ennis, Co. Clare. She married Noel Collins and had two sons Garry and David. Her marriage was annulled in 1991. She continued to reside in Ennis where she had a number of business interests. Mr P.J. Howard was born on the 10th July 1949 and resided at Ballybeg House, Kildysart Road, some seven miles from Ennis. He was the proprietor of a business known as Downes & Howard. He is wealthy with a net worth estimated in tens of millions of Euro. He was born on the 10th July 1949. He was married and had two sons, Niall Howard and Robert Howard who at the time of the events giving rise to the charges against the applicant were aged twenty three and twenty seven respectively. He legally separated from his wife in the early 1990s. He formed a relationship with a Ms Lyons which continued until her death in 1998. Shortly after the death of Ms Lyons in November 1998 he met with the applicant and they subsequently entered into a relationship. The applicant moved into Mr Howard’s home and shortly afterwards the applicant’s children joined them. Mr P.J. Howard’s wife died in September 2003 and in consequence he was free to re-marry. The prosecution contended that the applicant was anxious that she and Mr P.J. Howard would wed but he was unwilling to divorce his wife. He was also anxious to divest himself of wealth in favour of his sons while wishing to maintain and support the applicant and her two children. In 2005 the applicant and Mr P.J. Howard took part in a ceremony in Sorrento in Italy consisting of solemn promises and declarations of commitment: it was accepted that this was not a valid marriage but was undertaken to afford respectability to the relationship between the applicant and Mr P.J. Howard. On their return to Ireland they held a “wedding reception” in the Spanish Point Hotel, Co. Clare. The applicant in addition procured a document entitled “Proxy Marriage Certificate” from Mexico. On the 26th February 2006 the applicant used the proxy marriage certificate to obtain a passport in the name Sharon Howard. The Prosecution Case On the 2nd August 2006 the applicant set up an e-mail address, [an email address] on the Advent desktop computer at Downes & Howard’s premises where she worked as a receptionist. On the 8th August 2006 she made contact by e-mail with an e-mail address [an email address]. On the 15th August 2006 she entered into a contract with her co-accused Mr Eid to murder P.J. Howard, Niall Howard and Robert Howard for $90,000. On that date she sent by Fed-Ex a package containing a €15,000 deposit to Teresa Engle at an address in Las Vagas. On the 16th August 2006 the Advent computer in Downes & Howard’s office was used to check the progress of the package, the user logging in as [an email address]. E-mails from [an email address] were signed Tony Luciano which, on the prosecution case, was in fact Mr Eid. Part of the prosecution case was that the applicant intended to use a proxy marriage certificate of a marriage to P.J. Howard to make a claim to his estate upon his death and the death of his sons. The prosecution evidence included evidence of a forensic analysis of five computers namely the Advent desktop and a Toshiba laptop taken from Downes & Howard’s offices, an Iridium computer taken from Ballybeg House where the applicant resided with P.J. Howard and two computers from Mr Eid’s house in Las Vegas. E-mails were recovered from these together with information in relation to internet pages viewed. There was also evidence of phone contact between the applicant and Mr Eid. Teresa Engle, Mr Eid’s second wife gave accomplice evidence. She travelled to Ireland in August 2006 and met with Mr Gharbeiah who had travelled to Ireland and Spain to assist in the murder of P.J. Howard and his sons. Mr Eid had set up the e-mail address [an email address]. and corresponded as Tony Luciano. Mr Eid had made Ricin in the garage of her and Mr. Eid’s Las Vegas home and brought it to Ireland in a contact lens case. She travelled to Ireland with Mr Eid on the 25th September 2006. They burgled Downes & Howard’s premises removing the Toshiba laptop and the Advent desktop. On the 27th September 2006 she and Mr Eid had approached Robert Howard at his home and offered him the opportunity to buy out the contract on his life. On the following day she and Mr Eid were arrested at the Two-Mile-Inn, Limerick. On a search of their rooms the keys to Downes & Howard’s premises and items removed from the premises were found. The Advent desktop was found in a boiler room at the hotel and recovered in April 2007. Brian Buckley, a member of the Defence Forces, gave evidence that he had received telephone calls and e-mails from Tony Luciano seeking poison and offering him the of the killing of two males in Ireland and one in Spain. Following the receipt of information from the FBI a search was conducted of the prison cell of Mr Eid, a contact lens case was recovered and this was found to contain traces of Ricin. The Toshiba laptop stolen by Mr Eid and Ms Engle from the premises of Downes & Howard contained e-mails to e-mail addresses [an email address], [an email address] and [an email address]. The Defence Case The applicant gave seven interviews to the Gardai and wrote three letters to the Director of Public prosecutions. She gave evidence in her defence. On the 16th August 2006 she contacted John Keating with a view to his calling out to view her mother’s house to build an extension and to give her a price for the same. John Keating arrived at the house at 10.30 or 10.45 a.m. They went together to her mother’s house. She cannot be exact about the time John Keating left her but she recalled that he wanted to be back in Limerick by 1.30 p.m. He had left his van at Downes & Howards’s offices and she left him back there. She went into the office for a short time to collect P.J. Howard’s medication and she telephoned her mother and arranged to meet her for lunch in some ten or fifteen minutes time. She was in the office for five minutes and then returned home and got there at 12.50 or 12.55 p.m. She went into Ennis and picked up her mother and went for lunch. The statements which she gave to the Gardai were true as were the letters sent to the Director of Public Prosecutions. She did not solicit anyone to kill P.J. Howard and his sons. Grounds of Appeal On the application twenty three grounds are raised. Two of these relate to the conviction on the charges of conspiracy and are no longer relevant. At the hearing counsel for the applicant refined the grounds to address four separate issues as follows:-
Ground 3. The trial of the applicant was unsatisfactory in circumstances where material of a probative nature was not sought and/or provided by the prosecution from the law enforcement agencies of the United States of America to include the FBI in California. Ricin Ground 4. The trial of the applicant was unsatisfactory in that the prosecution failed at any time to seek to establish what, if anything, was done to analyse alleged, suspected Ricin, allegedly found by the FBI in the garage of Essam Eid’s dwelling in Los Vegas, where the result of any analysis thereof was capable of having a major bearing on the jury’s consideration of whether what was allegedly found in Essam Eid’s cell in Limerick Prison were traces of Ricin and where the same evidence could have had a major bearing on the credibility of Teresa Engle. Ground 5. The trial of the applicant herein was unsatisfactory in that the prosecution failed at any time to seek themselves to have the said material analysed with the same consequences as are set out in Ground 3 hereof. Ground 6. The learned trial judge failed and erred in law and/or in fact in overruling himself in reversing a decision to exclude all evidence pertaining to the alleged Ricin poison having been found in the prison cell of Essam Eid in Limerick Prison on the 24th April 2007. Ground 7. The learned trial judge erred in law and in fact in permitting the prosecution to introduce before the jury evidence in relation to a substance purporting to be Ricin, which was found in the prison cell of Essam Eid and Damien Heffernan in Limerick Prison on the 24th April 2007 in circumstances where the learned trial judge reached a determination of fact that the sample which was sent to the United Kingdom laboratories in Teddington, for the purposes of examination, had been contaminated by virtue of the ramp test conducted by Commandant Butler, on the 25th April 2007 thereby precluding the possibility of a defence sample being retained for the purposes of examination. Ground 8. The learned trial judge erred in law and in fact in ruling admissible evidence of purported Ricin having been found in the prison cell of Essam Eid and Damien Heffernan in Limerick Prison on the 24th April 2007 in circumstances where the defence more properly should have been provided with a similar sample for the purposes of investigation and/or forensic analysis. Ground 9. The learned trial judge erred in law and failed to have sufficient regard for the entitlement of the appellant to be tried in due course of law in admitting the said evidence notwithstanding that the prosecution had caused the defendant to believe immediately in advance of the trial that there was no practical prospect of a further analysis of the substance alleged to have been Ricin. Ground 10. The learned trial judge erred in law and failed to have sufficient regard for the entitlement of the appellant to be tried in due course of law in admitting the said Ricin evidence notwithstanding the fact that the said substance was only confirmed on the prosecution’s case to be Ricin days before the commencement of the trial on the 21st May 2008. Ground 11. The trial of the applicant was unsatisfactory in circumstances where the prosecution sought to have the learned trial judge revisit the decision to exclude the evidence as related to the substance which purported to be Ricin poison retrieved from the prison cell of Essam Eid and the learned trial judge acceded to the request and subsequently readmitted the said evidence. Ground 12. The learned trial judge erred in law in declining to discharge the jury upon ruling that the said Ricin evidence was inadmissible and in permitting the prosecution to reopen the issue when it was manifest that the prosecution had made a clear decision to limit the evidence which it chose to call on the issue of admissibility and it concluded its evidence thereon. In the circumstances the defendant had been induced to make in full its submissions in relation to the technical evidence in such a way as to undermine its ability effectively to cross-examine witnesses called on the admissibility issues subsequent to the said submissions. Alibi Evidence Ground 18. The learned trial judge erred in charging the jury in failing to direct the jury with sufficient clarity as to the import and consequences of the evidence offered by Mr John Keating, which had been ruled by the learned trial judge as being alibi evidence, if they found the same could reasonably be true. Ground 23. The conviction is unsafe and unsatisfactory as the prosecution, at the close of its case, maintained the stance that John Keating, who in the prosecution’s case was the appellant’s only alibi, was a dishonest and unreliable witness. The basis for this contention was the erroneous evidence offered by the prosecution which was subsequently proved to be false in circumstances where, if the falsity of the same had been known at the time, the appellant may not have given evidence in her defence. This in turn had a significant impact on her trial. 4. Judge’s charge Ground 14. The learned trial judge erred in law and in fact in refusing an application to discharge the jury upon application being made by counsel for the defence in circumstances where the prosecution witness Detective Sergeant Michael Mulcahy in response to a question from defence counsel in cross-examination suggested/indicated that there was evidence in a statement of Mr Robert Howard, which contradicted an assertion put to him by counsel that Ms Sharon Collins was not in the office of Downes & Howard in the Westgate Business Park between the hours of 10.53 and 12.35 on Wednesday, 2nd August 2006 in circumstances where the e-mail account [an email address] had been set up at 11.51.18. Ground 15. The learned trial judge erred in law and in fact in failing to discharge in refusing an application to discharge the jury upon said application being made by counsel for the defence in circumstances where the prosecution witness Detective Sergeant Michael Mulcahy in response to a question from defence counsel in cross-examination suggested/indicated that the telephone records of Mr John Keating were in some way incomplete or deficient. Ground 16. The learned trial judge erred in law and in fact in failing adequately or at all to address in his charge to the jury that any reference to Ms Collins having being in the offices of Downes & Howard of Westgate Business Park, Ennis, Co. Clare, between 10.53 and 12.35 on August 2nd 2006 was not supported at all by the evidence properly adduced before the jury and that any inference so drawn could not be drawn upon the evidence. Ground 21. The learned trial judge erred in law in failing to charge the jury in accordance with the requisitions of the defence. Ground 20. The verdict of the jury convicting the applicant of soliciting Essam Eid to murder was unsafe and unsatisfactory on the basis that, since the jury could not agree beyond reasonable doubt that Essam Eid had conspired with Sharon Collins to murder, the jury may not in the circumstances have been satisfied that if Sharon Collins had solicited some person to murder, the person so solicited was Essam Eid. Ground 22. The learned judge failed correctly to charge the jury in relation to the offence of solicitation. I propose dealing with each of the above issues in turn. 1. Disclosure Almost simultaneously with the events with which this court is concerned the “Royston Affair” occurred in the United States. Ms Engle gave evidence that she and Mr Eid took Ricin to Ireland in September 2006. They obtained a recipe from the internet and manufactured the Ricin at their home. The Ricin was packed in a contact lens case. She gave evidence that she had been charged with extortion in the United States and had pleaded guilty. In cross-examination she accepted that in the United States she was involved in a scheme to extort money in circumstances similar to those involved in the case against the applicant. She had gone with Eid to a lady called Royston and told her that she would be killed if she and Mr Eid did not get money. She also spoke to Mr Hammond in relation to extortion in the absence of Mr Eid. She had entered a plea agreement with the United States Attorney’s Office in relation to the charges in the United States. Ms Ingrid Sotelo a special agent with the Federal Bureau of Investigation gave evidence. She searched Mr Eid’s residence and in the garage found a can of acetone. She found a blender with a white residue in it and a coffee maker carafe with white residue in it. The white substance was not analysed but she assumed that perhaps the Ricin had been manufactured in the garage. She did not take further steps as Nevada was not within her jurisdiction: she referred the matter to Las Vegas FBI but left the acetone, the blender and the coffee carafe on the premises. The items found on the search were of no relevance to her investigation which concerned the Royston Affair which involved a threat to kill by means of a shot to the head not using Ricin. For the applicant it is submitted that there was a responsibility on the prosecution to seek to require evidence either confirming or disproving the suggestion that the material was Ricin. The prosecution proposed to call Ms Engles on the tenth day of the trial and counsel on behalf of the applicant objected on two grounds. He required full information in relation to materials available in the United States in relation to the Royston affair. Further on the 14th May 2008 a letter was written to the chief prosecution solicitor requesting materials in the following terms:-
The chief prosecution solicitor replied on the 15th May 2008, that all documentation in the possession of the prosecution which refers to Marissa Mark, Anne Lauryn Royston, Melanie Kasemaeir and Jossuha Hammonds had been disclosed. In earlier correspondence the prosecution solicitor disclosed that all materials had been sought in a mutual assistance request. However the mutual assistance request had not by then been disclosed and the applicant was unaware what had been sought or when. It was submitted that it was insufficient for the prosecution to say that it cannot obtain documents from the United States without explaining the efforts made to obtain the same. Absence of documents prevented the defence from exploring the Royston affair. At that point evidence of the mutual assistance requests were given to the learned trial judge. The applicant’s complaint in this court essentially is that no information was available as to what was available in the United States. Further the letters requesting information were claimed by the prosecution to be privileged. The learned trial judge examined the requests and ruled that the prosecution had promptly sought detailed information and obtained a great deal of information. The obligation on the prosecution was to use its best endeavours. In this case the court would be obliged to give appropriate warnings. In short the learned trial judge concluded that the prosecution had done this. Again it was submitted that insufficient information was available to the defence in relation to the examination of computers in the United States. Further information was not made available by the United States authorities. For the prosecution it was submitted that Ms Ingle’s evidence was chiefly relevant to the charges against Mr Eid. The Gardai had obtained the hard drive from the computers in the United States and had made a copy of the same available to the defence. Essentially her evidence identified Mr Eid with Tony Luciano. Only three persons had access to the computers in the United States. It was a great deal of evidence all pointing to Mr Eid as the author of e-mails. In any event having access to a copy of the hard drive it was open to the defence to carry out whatever analysis they thought fit of the same. The defence had been furnished with a very detailed report on the Royston affair. The prosecution had sought all information from the FBI but it had not been furnished. In the present case detailed requests for information had not been furnished before the trial but during the trial. Counsel for the prosecution dealt in detail with the hard evidence which was available. On the basis of the same she submitted that there was no real risk of an unfair trial. The prosecution’s submission in summary was as follows:-
The disclosure actually furnished was in fact substantial and all the indications are, from the material actually furnished, that there was no real risk of an unfair trial in the absence of any disclosure as there was no power to compel disclosure of material from the United States authorities beyond what they were prepared to furnish on a voluntary basis. The situation in the present case differs from that in D.P.P. v Braddish [2001] 3 IR 127. The trust of the defence argument was that non disclosed material might indicate that a person other than Mr Eid was involved in the computer traffic and as a result it would not be possible to show that Mr Eid was solicited to murder. There was ample evidence of Mr Eid’s involvement. There was no real risk of an unfair trial. “The Royston affair” concerned an attempt to extort money from Lauryn Royston and Joshua Hammonds in Los Angeles California. Mr. Hammonds former girlfriend Ms. Mark contacted the hitmanforhire website requesting the murder of Mr. Royston. Ms. Engle attempted to extort money from Ms. Royston and Mr. Hammond on 12th and 22nd September 2006. Ms. Ingle pleaded guilty to charges of extortion and served a prison sentence. It was alleged that Mr. Eid was also involved in the offence. Ms. Engle gave evidence as to the manufacture by her and Mr. Eid of ricin. Thereafter Ms. Ingrid Sotelo Special Agent F.B.I. based in Los Angeles gave evidence. On 16th May 2007 she attended at the Las Vegas home of Mr. Eid and one of his wives Lisa Eid where she saw a blender with white residue in it and a coffee maker with white residue in it. She believed this to be ricin. It was suggested to the witness that her evidence was not credible as ricin is a lethal substance she had taken no steps to seize isolate or analyse it. Her explanation was that she informed the F.B.I. Las Vegas office of the find but did not know whether any steps had been taken to deal with the substance. The substance was of no evidential value in the Royston Affair as the suggested means to kill in that case was by means of a gun shot and not by poison. For the applicant it is submitted that in the circumstances of the case where the prosecution contended that ricin had been manufactured in Las Vegas by Teresa Engle and Essam Eid and subsequently transported to Ireland for the purposes of murder there was a responsibility on the prosecution at the very least to seek to acquire evidence either confirming or disproving the suggestion that the material was ricin. Further two computers were retrieved from Mr. Eid’s residence in Las Vegas. No evidence in relation to internet traffic similar to that downloaded from Irish computers was made available to the jury and in particular evidence which would demonstrate that those computers were in fact operated by Mr. Eid. The Royston affair is relevant because of its similarity to the circumstances relied upon by the prosecution in that it was there alleged that Mr. Eid and Ms. Engle attempted to extort money from Lauryn Royston to buy out a contract on her life allegedly taken out by Ms. Mark. The applicant sought information in relation to the Royston Affair on 25th February 2008 but the prosecution made no attempt to obtain the information until May 2008. Only on day 10 of the trial was the applicant made aware that it would not be possible to obtain any of the information sought. In the course of the trial counsel for the prosecution claimed public interest immunity over the mutual assistance request to the United States. It is submitted that the absence of information on the Royston Affair limited counsel’s ability to cross examine Ms. Ingle. The respondent’s position in relation to disclosure is as follows:-
The disclosure actually furnished was in fact substantial and all the indications are from the material actually furnished, that there was no real risk of an unfair trial in the absence of further disclosure. A statement from Ms. Engle taken by the F.B.I., a detailed narrative from the F.B.I. and a statement by Ms. Engle to the Gardai were disclosed and contained very detailed information about the Royston affair. Decision on the Issue In order to succeed on this issue the applicant would have to show that the ruling the learned trial judge was clearly wrong in law. This court is satisfied that the decision of the learned trial judge was not affected by any such infirmity. All reasonable efforts have been made to obtain the documents in question and it was not within the power of the State to procure further material. Having regard to the detailed statements in fact furnished the defence had a great of material upon which counsel could cross examine Ms. Engle. While for the applicant it is contended that there was an onus on the prosecution to acquire evidence confirming or disproving the evidence of Ms. Engle in relation to the manufacture of ricin and whether the substance noted by Ms. Sotelo was in fact ricin no such evidence was available notwithstanding the efforts made to obtain the same. The court is satisfied that by reason of such non-availability the applicant’s trial was not made unfair. The respondent had in good faith made all reasonable efforts to obtain further disclosure. Materials not disclosed were never within the prosecution’s procurement. Insofar as complaint is made in relation to the US computers the hard drives to the same were made available to the applicant and it was open to the applicant to have the same examined and this was not it would appear done. The court refuses leave to appeal leave on this ground. 2. Ricin On the 25th April 2007 information was obtained from Ms Engle. As a result a search was carried out on Mr Eid’s cell. Traces of a substance were found in a contact lens case. A field test indicated the possible presence of a toxin. Tests were carried out by the Home Office at Teddington in the United Kingdom and the test results were forwarded on the 28th April 2007. No tests were carried out on a substance found at Mr Eid’s home in the United States. For the applicant it is submitted that had tests being carried out on the substance found in Mr Eid’s residence the result would have been relevant to the veracity of Ms Engle’s evidence. The defence sought access to the material recovered from Mr Eid’s cell and were informed by letter of the 23rd April 2008 that the material had been tested to destruction. As a result it was not open to the defence to test a sample of the material. Following evidence given in a voir dire the learned trial judge ruled that as a result of a failure to preserve a sample for the purposes of examination by the defence it was not permissible to adduce evidence in relation to Ricin. Shortly thereafter counsel for the prosecution sought to re-open the issue and a second voir dire was held. As a result the evidence was admitted. It is submitted on behalf of the applicant that once a decision was made on the voir dire there was no jurisdiction in the learned trial judge to re-open the matter. All eight grounds raised on the appeal in relation to ricin deal with the issue of a ruling by the learned trial judge as to the admissibility of evidence of ricin discovered in the cell of Mr. Eid in Limerick Prison and the courts decision to revisit the ruling not to admit the evidence and reverse the same. In opening counsel for the prosecution referred to the presence of ricin in Mr. Eid’s cell. When it was proposed to call Ms. Engle to give evidence it was clear that her evidence would touch upon the discovery of ricin. The applicant sought to have material recovered from the cell made available for the purposes of testing the same to determine if it was in fact ricin. By letter 23rd April 2008 the prosecution informed the applicant that the material had been tested to destruction by analysis undertaken in the United Kingdom. On Day 10 of the trial the following submissions from counsel the learned trial judge remarked as follows:-
Having heard evidence the learned trial judge ruled that there was an obligation on the prosecution to make known that it was a preliminary positive result in relation to the presence of ricin. If that had been done the applicant could have sought to carry out their own tests and accordingly he ruled the evidence inadmissible. The matter was then adjourned briefly to enable the parties to digest the implications of the ruling. Counsel for the respondent sought to reopen the matter and the matter was reopened on Day 12 of the trial. Evidence was given by Superintendent John Scanlon and laboratory witnesses from the United Kingdom. Having heard the evidence and submissions from counsel the learned trial judge overturned his previous ruling. It is the applicant’s submission that he was not entitled to do so. Reliance is placed on R v Day [1940] 1 ALL ER 402. For the respondent it is submitted that the ricin evidence was relevant only to her co-accused Mr. Eid. The evidence was that Mr. Eid had made ricin in the United States and transported it to Ireland with the intention of carrying out the murders. There was no suggestion that the applicant knew that this was being done. The emails opened by the prosecution and relied upon as showing the guilt of the applicant in soliciting to murder made it clear that she did not know the method of killing that was to be used. In these circumstances it is submitted that the remainder of the arguments advanced on behalf of the applicant are irrelevant as the trial judge’s ruling applied only to Mr. Eid. The laboratory in the United Kingdom which carried out the test informed the respondent that it was fairly unlikely that there was any substance left in the contact lense case to be tested after their test had been completed and that the substance, in their phrase had been “tested to destruction”. The applicant was so notified but did not seek to carry out a further test. Neither did the applicant seek to review the procedures carried out in the laboratory in the United Kingdom notwithstanding an offer made to facilitate the same. On Day 10 of the trial the learned trial judge acceded to the applicant’s application for a voir dire on the ricin issue. He informed counsel that he wished to hear the evidence the following day. The following exchange then took place between counsel for the prosecution and the learned trial judge: Counsel: “Well I am not being required to give evidence in relation to that in the morning for this reason: I have to get witnesses to travel from England: arrangements have to be made in relation to ricin.” Judge: “I am thinking in terms of Commandant Butler”. Counsel: “Just the Commandant. Well, I do not know if he can enlighten the court any further”. Judge: “There are certain matters which I think it could help”. Counsel: “Very good, we will have him here”. The intention accordingly was to hear only part of the evidence in relation to ricin. The evidence of Commandant Butler was heard. When the ruling was given counsel for the prosecution asked for an opportunity to call additional witnesses, in short to present all evidence in his possession to the court. In response to that application the learned trial judge adjourned the matter to the following day. On the following day the learned trial judge heard evidence from Superintendent John Scanlon and from three witnesses from the laboratory in the United Kingdom – Joanna Peet, Steven Kippen and Emma Stubberfield. On Day 13 the learned trial judge ruled and commenced his ruling as follows:-
Decision on the Issue Even after the conclusion of all evidence further prosecution evidence may be admitted: Dawson v District Justice William Hamill [1989] I.R. 275. In that case the prosecution was permitted to adduce evidence the existence of which the prosecution had been previously unaware which was relevant to an issue and which judgment had been reserved. In the course of his judgment Lynch J. said:-
While the circumstances in the present case are somewhat different it cannot be doubted but that the requirement of justice and fairness both to the prosecution and to an accused must apply. The learned trial judge required to hear one witness only on a day when he was aware that there were other relevant prosecution witnesses who would not be available for that day. Clearly there was an unfairness to the prosecution. It was the duty of the trial judge to remedy the same if the same could be done without unfairness to the accused. In R v Day [1941[ ALL ER 402 the prosecution had closed its case and the accused gave evidence at which point the prosecution were permitted to call further evidence, the necessity for that evidence in the view of the Court of Criminal Appeal not being ex improvisio. The court applied the principle laid down in R. v. Harris [1927] 2 KB 587: the general rule is that where the prosecution commences its case it must complete the same before the defence begins unless a matter arises ex improvisio which no human ingenuity can foresee. The matter so arising may be answered by contrary evidence. Thus the circumstances in R. v Day are quite different from those appertaining in the present case. In particular the prosecution case had not closed. There is the then peculiar circumstance that the judge required to hear one witness in relation to the testing for ricin being aware that there were other witnesses relevant to the issue who would not be available. There is, it seems to this court, no unfairness to the applicant in the trial judge hearing the other witness on the issue and of whose evidence the applicant was on notice. If no injustice or unfairness was occasioned to the applicant by the additional evidence being heard, and none has being pointed to, it would represent an unfairness to the prosecution in the particular circumstances of this case if the learned trial judge could not review his decision in the light of the additional evidence. No authority for the proposition put forward by the applicant has been opened that such a ruling cannot be revisited as the absence of the additional evidence arose ex improvisio – in this case the judge’s intervention requiring the evidence of an a witness being part only of the evidence relevant to the issues concerning ricin. Finally the respondent submits that the applicant had no status to challenge the admission of this evidence as ricin as an issue was relevant only to her co-accused and had no relevance to the charges against the applicant. The court is satisfied that this is substantially correct: however the evidence as to ricin was 4relevnat to the credibility of Ms Engle and so the applicant had status to raise the issue. For these reasons the court will refuse the applicant leave to appeal on these 3. Alibi evidence Mr. Keating was a prosecution witness. In cross examination he gave evidence of his movements on 16th August 2006 when he spent a period of time in the company of the applicant. During the morning he had gone with her to P.J. Howard’s business premises where she left him and went into the premises for a few minutes. She returned to him and they went to Ballybeg House where he remained with the applicant until 12.40 or 12.50 but definitely no later than 12.50. The prosecution case was that on 16th August at a time approximate to 12.23 or 12.24 the applicant had access to the computer terminal at P.J. Howard’s business premises and had accessed the internet and tracked the movements of the Fed-Ex package. Counsel for the prosecution submitted that the witness was offering alibi evidence within Section 20 of the Criminal Justice Act 1984 and that no notice had been given of this evidence. Following argument from counsel the learned trial judge directed that Mr. Keating be stood down and that the matter be dealt with at a later date. Subsequent to this Mr. Keating was interviewed by the Gardai. The court returned to this issue on Day 25 of the trial when the learned trial judge held that Mr. Keating’s evidence was alibi evidence and Mr. Keating was then cross examined by counsel for the prosecution. Much of the cross examination related to his evidence that he had been in the United Kingdom from July 27th to the 14th August and he fixed the date of his meeting with the applicant with reference to his having been in the United Kingdom on those dates. Mr. Keating produced a Compass loyalty card detailing his dates of travel to and from the United Kingdom. Ms. Catriona O’Connell of Stena Line Ferry Company gave evidence that the loyalty card was not proof that he had travelled on the particular dates. Thereafter the applicant went into evidence. The applicant sought to have Mr. Keating recalled as a prosecution witness. This application was refused. Mr. Keating was then called by the applicant as a defence witness. The applicant contends that the learned trial judge erred in holding Mr. Keating to be an alibi witness. It is submitted that the time scale in the indictment extending from the 1st August to the 26th September 2006 is so long that it would be unreasonable to expect the applicant to account for all her movements on all of the 57 days in question and that Section 20 did not therefore apply. The spirit of the section supposes that the offence was committed at a particular time and in a particular place. R v. Hassam [1970] 1 QB 423 at 429 is relied upon. That case related to the provisions in similar terms in Section 11(8) of the United Kingdom Criminal Justice Act 1967. The appellant in that case was charged with living on the earnings of prostitution between July 29th and August 21 1968 and it was alleged that he was living with a prostitute at her flat at all material times. The appellant denied being at the flat on a particular morning during that period and sought to adduce evidence that he was at his brother’s house some two miles away. It was held that the evidence which he wished to give was not evidence in support of an alibi. In the course of its judgment the Court of Appeal said of the United Kingdom legislation:-
Having held Mr. Keating’s evidence to be alibi evidence the learned judge’s charge in relation to the same it sis submitted was deficient. Further it is submitted that the learned trial judge should specifically have advised the jury as to the approach they should adopt if they found that Mr Keating’s evidence could reasonably be true. The learned trial judge was requisitioned on this matter in the following terms:-
Counsel for the applicant went on to give as an example the evidence of John Keating that if the jury believed it possible that the evidence is true then they must treat that evidence as true for the purposes of the case. The learned trial judge in response to the requisition recharged the jury and no dissatisfaction was expressed by counsel for the applicant with the manner in which he did so and no further requisition was raised. The conviction, it is submitted on behalf of the applicant, is unsafe and unsatisfactory where the prosecution at the close of its case maintained that John Keating was a dishonest and unreliable witness on the basis of the evidence of Catriona O’Connell which evidence was later accepted to have been incorrect. Subsequent to the applicant giving evidence Mr. Keating was called as a witness by the applicant and gave evidence of a computer printout stating that he did in fact travel on the dates as originally stated. Thus the jury were erroneously led to believe by the prosecution that Mr. Keating had not travelled on those dates. The respondent emphasised the importance of the date the 16th August 2006. The applicant accepted by way of admission that she had sent money to the United States by way of a Fed-Ex parcel, that she was given a tracking number for the package and that she did not disclose the tracking number to anyone. At 10 a.m. on that morning the package was tracked from the computer at P.J. Howard’s residence using the lyingeyes email address. Later that morning at approximately 11.22 on the computer in P.J. Howard’s business premises again lyingeyes email address was logged into the computer and the package was again tracked. The original witness statement of Mr. Keating was limited to dealing with locks on the door of Mr. Howard’s business premises. When he came to give evidence it was clear that he had been in consultation with the applicant and her advisors. In cross examination he gave a very detailed account of being in the company of the applicant during the entirety of the morning of the 16th August. He claimed to be able to date this with reference with a trip which he made to the United Kingdom from which he had just then recently returned. It subsequently emerged that Mr. Keating had in fact travelled to the United Kingdom on the dates which he stated. The difficulties of which the applicant complains would not have occurred had the applicant given notice of the alibi evidence which it was intended to lead as it would have been possible to have the Gardai check that evidence. If there were any difficulties experienced they arose in this manner the applicant should not be heard to rely upon the same. Decision in the Issue The court has carefully considered the judgment of the Court of Appeal in R. v. Hassan. The circumstances in that case differ very significantly from those in the present. The appellant in that case was charged with living on the earnings of prostitution between the July 29 and August 21 1968 in Cardiff. The Crown case was that at all material times the appellant was living with a prostitute at a flat at 30 Connaught Road, Cardiff. The police maintained observation on those premises. On August 30th a police constable attended at the premises with a search warrant. He knocked at the door. They saw a man leaving the flat through a window and he identified the man as the appellant. The appellant gave evidence and denied that he was the man who had left the premises on that occasion and that he had being living two miles away with a brother at that time. The trial judge held his evidence to be alibi evidence. The court noted that even if this evidence was correct he was still capable of being guilty of the offence charged and again even if he was the man seen exiting the premises this did not establish that he was living with or habitually in the company of a named prostitute. The evidence was only part of the narrative which the Crown presented and upon which they were inviting the jury to draw the conclusion that an offence had been committed. There was a great deal of other evidence about his attendance and activities at the premises at relevant dates. The court went on to note difficulties regarding the giving of notice of alibi in relation to offences of a continuing nature but that nonetheless the statutory provision might well apply in relation to such offences. Having regard to the differing circumstances between the present case and Hassan the court is not satisfied that that judgment is of any relevance. Here part of the prosecution case clearly flagged in the evidence was that the applicant was at a particular premises at a particular time when a particular computer was operated. The applicant wished to adduce evidence that at that particular time she was at another place and that in the view of this court is clearly alibi evidence and clearly comes within the statutory provision. Insofar as the applicant submits that the learned trial judge failed adequately to direct the jury with sufficient clarity as to the course they should take if they found that the alibi evidence could reasonably be true the court notes that a requisition was raised in this regard, that the learned trial judge re-charged in relation to the same and that no further requisition was raised. In these circumstances the applicant cannot now rely on any suggested inadequacy. Finally it is the case that the prosecution maintained that John Keating was a dishonest and unreliable witness. However this was corrected when the true position in relation to his travel to and from the United Kingdom became available. The trial judge dealt with this matter comprehensively in his charge. It remained open to the jury to accept or reject Mr Keating’s evidence and find that it was not reasonably true. The court is satisfied that the directions from the trial judge to the jury adequately dealt with the erroneous position which had arisen earlier. Having regard to the foregoing the applicant is refused leave to appeal on these grounds. 4. Evidence of Detective Sergeant Mulcahy The witness was cross examined by counsel for the applicant in relation to the presence of the applicant in P.J. Howard’s business premises between 10.53 a.m. and 12.35 p.m. on Wednesday 2nd August 2006 the time at which the email account was opened. The relevant passage from the cross examination is as follows:- “Question: At that time. There is a second phone call made, I would just ask you to note that? Answer: I think there is other evidence to suggest that she was there from the Howard brothers. Question: From what? Answer: I think Robert Howard and Niall Howard in their statements, did they not say she was present? Question: Well now, I will ask you to be very cautious in relation to what you say. I have looked into this and regardless of what is in his statement that is not evidence; is that not correct? Answer: Absolutely.” An application was then made to have the jury discharged on the basis that the answer given would leave the jury with the impression that there is something in documents not introduced in evidence putting the applicant in the office premises of P.J. Howard at the relevant time. The learned trial judge ruled that it was a matter which could be dealt with by a warning to the jury. The evidence of Robert Howard and Niall Howard was that they were in the premises on that date until approximately 1.50 p.m. when they left for Kerry. In their evidence they did not place the applicant in the building within the relevant time frame. The learned trial judge did not address the jury on the matter in his charge. Later in the cross examination of the witness while the credibility of Mr. Keating was still an issue the following exchange took place:- “Question: Were you involved in Mr. Keating? Answer: I interviewed him, yes, twice. Question: He divided all his phone records; didn’t he? He gave his phone number. Answer: He gave his phone numbers yes. Question: And there was a cell site analysis conducted on some of those. Answer: There was, yes. Question: I think it confirmed what he was saying to be true? Answer: I would not agree fully with you on that. Question: Really but cell site analysis has been conducted in this case? Answer: Yes.” No application was made to the learned trial judge to discharge the jury arising out of this passage of evidence. The learned trial judge did not deal with either of the foregoing passages from the cross examination and counsel for the applicant addressed the judge as follows:-
For the respondent it is submitted that the applicant greatly overstates the significance of the passages from the cross examination of Detective Garda Maloney. That witness merely expressed the view that something to that effect might be in one of the statements of Robert Howard or Niall Howard but did not say that this was definitely so. The defence could have provided information to the jury that this was not the case and they did not do so. Decision on the Issue As to the first passage of which complaint is made it is important to note that the answer given was in the form of a question from the witness to counsel rather than a definitive statement:
Counsel could quite simply could have told the witness that this was not so. Be that as it may, on reading the learned trial judge’s response to counsel to the requisitions raised on the charge was that he was willing to deal with the same. He sought counsel’s assistance in making sure that he had a note of all the matters upon which he had been requisitioned to address the jury but he did not mention Detective Sergeant Mulcahy’s evidence and this omission was not brought to his attention. When he failed to mention Detective Sergeant Mulcahy’s evidence in his re-charge no further requisition was raised by counsel for the applicant. In the context of a 28 day trial where there were a large number of requisitions canvassed at length the court would expect counsel to clarify with the trial judge if he intended to refer to that evidence particularly as the trial judge had not indicated any unwillingness to do so in the course of the particular requisition being discussed. In any event the court is satisfied that the answer of the witness objected to is vague and falls short of being a definite statement. The learned trial judge was quite correct in refusing to discharge the jury. It was a matter which could readily have been dealt with in the charge. Reading the exchanges between the trial judge and counsel the court is satisfied that the learned trial judge was quite willing to re-charge the jury in relation to the same. When he failed to do so it was incumbent upon counsel for the defence to draw this to his attention and this he failed to do. For this reason the leave to appeal on this ground is refused. 6. Solicitation The applicant’s submits that the verdict of the jury convicting her of soliciting Mr. Eid to murder was unsafe and unsatisfactory on the basis that, since the jury could not agree beyond reasonable doubt that Mr. Eid had conspired with Sharon Collins to murder, the jury may not in the circumstances, have been satisfied that if Sharon Collins solicited some person to murder that the person so solicited was Mr. Eid. Further the learned trial judge failed correctly to charge the jury in relation to the offence of solicitation. The learned trial judge dealt with the legal definition of each of the offences conspiracy and solicitation with reference to the statutory provision and explained that they are separate offences. Counsel for the applicant raised a requisition the relevant portions of which appear from the transcript as follows:-
Counsel for the applicant expressed dissatisfaction with one aspect of the re-charge in the following terms:-
It is submitted on behalf of the applicant that the jury did not act reasonably in finding that the applicant was guilty on the three counts of conspiracy to murder and guilty on the three counts in relation to solicitation of Mr. Eid to murder while disagreeing on Mr. Eid’s participation in the alleged conspiracy. The jury in not convicting Mr. Eid on the conspiracy charge were inconsistent in convicting the applicant of solicitation. For the respondent it was submitted that the trial judge correctly charged the jury in relation to the offence of solicitation and succinctly and correctly explained the offence. There was no requisition to the trial judge on behalf of the applicant that the offence of soliciting had not been adequately explained. The evidence was open to the interpretation that, while the applicant believed that she was conspiring with Mr. Eid to murder, he was in fact deceiving her in that his objective was to extort money from the intended victims and not to murder them. If this was the case then there was no conspiracy between the applicant and Mr. Eid but she nonetheless solicited him to murder. Decision on the Issue The learned trial judge re-charged the jury in line with the requisition of counsel for the applicant. The court is satisfied that the explanation of solicitation given to the jury by the learned trial judge was succinct and clear. No further requisition to the contrary effect was raised by the applicant. There is no inconsistency in the jury finding Mr. Eid not guilty of conspiracy and yet finding the applicant guilty of solicitation. As pointed out by the respondent, if Mr. Eid’s intention was to deceive the applicant and rather than to carry out murders his intention was to extort money from the intended victims then while there was no conspiracy to murder between the applicant and Mr. Eid the applicant had nonetheless solicited Mr Eid to commit the murders. The applicant is refused leave to appeal on these grounds. The applicant submits that the trial was unsatisfactory and the verdict unsafe in circumstances where a booklet of e-mails proved in evidence and furnished to the jury on the commencement of their deliberations contained an e-mail in addition to those which had been formally proved and introduced in evidence. It is conceded that the prejudice created by the inclusion of such e-mail is not sufficient to render the verdict unsatisfactory and viewed in isolation. Taken in conjunction with other complaints set forth in the grounds of appeal the cumulative weight creates an unacceptable prejudice. The respondent does not dispute that the e-mail was included in the book of e-mails in error. Conclusion The court accepts that the e-mail was incorrectly furnished to the jury but is satisfied that no prejudice resulted therefrom. Further it does not taken in conjunction with other matters the subject matter of grounds of appeal had the cumulative effect contended for by the applicant. 7. The Judge’s charge For the applicant it is submitted that the charge of the learned trial judge failed to meet the general obligation that it should be clear, concise and instruct the jury as to the relevant facts and law applicable to the case. Further he did not deal with requisitions adequately as particularised in grounds of appeal Nos. 16, 17, 18 and 22. The verdict of the jury is accordingly unsafe. The respondent’s submissions do not deal with this ground. Conclusion The court has carefully considered the learned trial judge’s charge and finds the same unobjectionable. The charge was delivered after a twenty eight day trial and insofar as counsel for the applicant was dissatisfied with the same numerous and detailed requisitions were raised. The learned trial judge displayed a willingness to and did deal with requisitions insofar that the charge was not concise having regard to the nature of the case this was inevitable and its length was no more than was necessary to assist the jury in their deliberations. The court does not accept that the charge was not clear, it dealt with the relevant law and the relevant facts. The applicant accordingly is refused leave to appeal on this ground. | ||||||||||