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Cite as: [2013] IECCA 43

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Judgment Title: Director of Public Prosecutions -v- Cunningham

Neutral Citation: [2013] IECCA 43

Court of Criminal Appeal Record Number: 92/09

Date of Delivery: 30/07/2013

Court: Court of Criminal Appeal

Composition of Court: O'Donnell Donal J., Moriarty J., Dunne J.

Judgment by: O'Donnell Donal J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
O'Donnell Donal J.	Link	Dismiss Appeal -v- Conviction

Outcome: Dismiss Appeal -v- Conviction

THE COURT OF CRIMINAL APPEAL

CCA No. 92/09

O’Donnell J.
Moriarty J.
Dunne J.

Between/

The People at the Suit of the

Director of Public Prosecutions

Respondent

And

Keith Cunningham

Appellant

Judgment of the Court delivered on the 30th day of July, 2013, by O’Donnell J.

1 On the 30th of December 2007, Keith Cunningham, the accused, then a youth of just over 19 years of age stabbed and killed Desmond (Des) Kimmins at 38 Rathmullen Park, Drogheda, County Louth. On the 2nd of March 2009, Keith Cunningham was arraigned at the Central Criminal Court charged with the murder of Desmond Kimmins. He entered a plea of guilty to manslaughter and not guilty to murder. On the 16th of March 2009, he was found guilty of murder by majority verdict of the jury. From that verdict he now seeks leave to appeal.

2 The events giving rise to the trial and conviction of the applicant and consequently this appeal, are a story of a fractured relationship, some violence, and a pervasive culture of alcohol consumption. It is necessary to set out some of the relationships of the parties to explain the circumstances of the incident which led to the death of Mr Kimmins, the trial of Keith Cunningham and the issues which now arise in this appeal.

3 The scene of the crime, 38 Rathmullen Park, was the home of Anne Guildea. She had been in a relationship with Des Kimmins and had two children with him, one aged eight years of age and the other some four or five years of age, both of whom lived with her. The relationship it seems was stormy, involved some violence, and at the time of these events, was unresolved. Their relationship was characterised in undeniably graphic words by the appellant when interviewed by the gardaí:

“It’s Ann’s fault she still humps him, he hits her but she humps him, it’s her fault. She tells him to f… off then she rides him…”.

The Court must be conscious of the fact that due to the tragic events giving rise to this case Mr Kimmins is no longer able to give his own account of matters. Furthermore, while Ms Guildea was a witness at the trial, the principal and indeed only, focus of a criminal trial is the issue between the prosecution and the accused, and the question of whether the prosecution has established beyond any reasonable doubt the charge proffered. Accordingly, all of the evidence is directed towards that issue and is not designed or intended to give a comprehensive picture of the truth of the relationships between all possible parties. Any account of the broader background must therefore take account of the risk of distortion created by the fact that it is drawn from evidence given from that perspective. Nevertheless, a very considerable quantity of evidence was given by the large number of witnesses who claimed to be in the garden of 38 Rathmullen Park at 3 a.m. on the morning of the 30th of December, and the above pungent account does appear to give an accurate flavour of the troubled relationship between the deceased and Ann Guildea.

4 On the night of the 29th of December the three main protagonists, the deceased Des Kimmins, Anne Guildea, and the accused Keith Cunningham were in different locations, although they were to converge, fatefully, upon 38 Rathmullen Park early the following morning. It is the fact that each of them had consumed alcohol in some quantities and in some cases undoubtedly to excess. Anne Guildea was out at the time with a friend. She had arranged for the daughter of a neighbour, Nicola Kavanagh, to babysit. In the event the younger child spent the night in Balbriggan and the older left during the night and went to Nicola Kavanagh’s family home which was also in Rathmullen Park. Nicola Kavanagh was the girlfriend of the accused and they had a six week old baby. They had been living together but at this time Nicola Kavanagh was living back at her family home. The babysitting of Anne Guildea’s children involved Nicola Kavanagh bringing her six week old baby to the house and a group of Nicola’s friends also coming to 38 Rathmullen Park, and drinking. Keith Cunningham was also there and drank a number of cans of beer. The deceased, Des Kimmins, for his part, was attending the 40th birthday party of one of his brothers which was attended by a number of family members. Yet again, and almost inevitably, alcohol was involved. There was evidence that at one stage Des Kimmins was helped out to a taxi, but the driver refused to take him as a passenger.

5 At about 2.30 a.m., Anne Guildea appears to have fallen down drunk in the street. She was attended to by a passer-by who acted as a good Samaritan. The gardaí were called. Anne Guildea persuaded the passer-by to ring the number in her mobile phone. That was the telephone number of Des Kimmins, the deceased. She was then brought home by the gardaí. Meanwhile, at the 40th birthday party, it appears that Des Kimmins had been drinking too. There is some confusion but it seems probable that quite a considerable amount of alcohol had been consumed. In any event when the phone rang it was not answered by Des Kimmins but by one of his sisters. It then appears that the female members of the Kimmins family became concerned for the two children of Des Kimmins and Anne Guildea and one of his sisters rang a niece who lived close by to ask her to check on them. Members of the Kimmins family including the sister and mother of the deceased went to 38 Rathmullen Park. By around 3 a.m. a number of members of the family had converged on the house and a row ensued. It appears that Des Kimmins had started to walk home, changed his mind, and he made for 38 Rathmullen Park. There had been a previous incident of violence between the deceased and the accused, although Keith Cunningham denied that there was any bad blood between them. In any event, it appears that Des Kimmins pushed his way past his family and, almost inevitably, became involved in a row. The appellant retreated into the house, and armed himself with two knives (which he later described in interviews with the gardaí as in the nature of steak knives) and came out and it appears held the knives up in both hands and said words to the effect of “Des I’m going to kill you. One of these is going into your f….ing face”. Other witnesses recalled different words but all of the accounts suggested a threat to stab Des Kimmins with the knives. Jim Kimmins, a brother of the deceased, grabbed the accused in what was described as a headlock (although some evidence suggested that the headlock occurred after the stabbing). There was a struggle, and the accused stabbed Des Kimmins fatally.

6 The deceased sustained three wounds. The first was to the anterior chest area almost vertically oriented measuring 5.2 cm gaping to 1.5 cm and measuring 5.5 cm when brought into apposition. This wound tracked backwards in an almost horizontal plane but slightly downwards and caused a slicing wound to the right ventricle of the heart. The total track of that wound was between 10 cm to 12 cm. A second stab wound was suffered to the postero-lateral aspect of the upper third of the right upper arm measuring 2.5 cm gaping to 1.5cm. The total track of that wound was 7.5 cm. There was a third wound to the left wrist measuring 2.3 cm in length but superficial in nature. The cause of death was noted to be a penetrating wound to the chest with the penetrating wound to the arm being a contributing factor.

7 Evidence as to the wounds was given by a Dr Curtis, the Assistant State Pathologist. This evidence was not in controversy. On the 20th of January 2009 however, Dr Curtis met a member of the gardaí who showed him some nine knives which had been recovered from in and around the scene. The appellant had told the gardaí that he had thrown the knives which he had used into bushes which he identified, but a garda search was unable to recover any knives from that area. However a number of other knives were recovered from the scene and the surrounding area. None of the knives shown to Dr Curtis had any DNA or other material on them linking them to the crime. Dr Curtis was able to exclude seven of the knives but in relation to two of them he said as follows:

“TC28

This was a knife with a black handle, measuring 31 cm in overall length. The blade measured 20 long by up 3.5 cm in width, with a 0.1 cm spine. The blade was single-edged and finely-serrated. In my opinion, this knife, or a knife of similar type, could have produced the wounds seen on the body of the deceased.”

And;

“AS2

This was a knife with a black handle, measuring 32 cm in overall length. The blade measured 20 cm long by up 4.3 cm in width, with a 0.1 cm spine. The blade was single-edged. The proximal part of the blade was extending out of the handle for a short distance. In my opinion, this knife, or a knife of similar type, could possibly have caused stab wound one on the chest. However, it is unlikely to have caused stab wound two on the upper limb, as the blade is too wide.”

This statement was served on the accused by way of general disclosure on the 9th of February. On the 23rd February the accused’s solicitor was informed of the intention of the prosecution to adduce this evidence by way of additional evidence, and on the 27th of February 2009 and thus shortly before the trial, the evidence was served. During the course of the trial the solicitor for the accused made an attempt to obtain a forensic scientists’ report but could not do so. In due course, on the 11th of March 2009, which was day 6 and the second week of the trial the evidence was sought to be adduced. It was objected to on behalf of the accused on the grounds of the late delivery, and also because it was contended that it was irrelevant. The evidence was admitted by the trial judge. The trial judge ruled as follows:

“The accused in this case has pleaded guilty in the presence of the jury to the manslaughter of Desmond Kimmins. Now that plea has not been acceptable to the prosecution, who seek to establish murder. The issue in the case, accordingly, is whether the prosecution can establish the statutory intent required for conviction of murder and also whether they can negative defences open to the accused in a homicide case. The onus of establishing this rests on the prosecution and never shifts in any fashion over to the accused man, and the prosecution must establish this to the standard of beyond reasonable doubt. This is trial by jury and not trial by the trial judge. It does not seem to me that the issues raised by [counsel for the accused] go to any question of admissibility, and accordingly I allow the evidence, and [counsel for the prosecution] has indicated the limitation she proposes to place on what she adduces, and within those terms I allow the evidence. It remains open to the defence to canvass in the presence of the jury any matter which they may consider relevant or helpful to their position.”

8 The evidence of Dr Curtis is central to this appeal and is raised in one way or another in the first six grounds of appeal and the related application to admit fresh evidence. At the outset of the hearing of this application, counsel for the appellant sought liberty to amend the first 6 grounds of appeal to reduce the issue to one omnibus ground namely, that “the trial was rendered unfair by the admission of Dr Curtis’ opinion because (1) no connection could be made out between these knives and the offence, and (2) the evidence was served so close to the trial that it was not possible to obtain a defence expert”. The court permitted counsel for the appellant to take this course. It is in relation to the issue as so framed that the application to admit fresh evidence must be addressed.

Fresh Evidence
9 The accused appealed his conviction and changed his legal representation. His new solicitor sought to pursue the question of the knives in a protracted correspondence with a forensic scientist in the United Kingdom, Dr Duncan Woods, who although not a pathologist, was by training a forensic biologist. The correspondence continued over a period between May 2010 and February 2012. The upshot of that correspondence was that Dr Woods, from his examination of the clothing worn by the victim, came to the view that knife AS2 could not have caused either the stab wound to the chest or the arm. It was also his view that knife TC8 could not be excluded from having caused the fatal stab wound to the chest. When asked whether the wound could have been caused by a “steak knife” he responded in July 2010:

“In the most general terms one might expect a steak knife to have a blade no more than 2 cm wide, possibly up to 12 cm long and possibly with pronounced serration of the blade edge. Concentrating on the fatal chest wound, simple penetration by such a narrow blade would be unlikely to create a 5.5 cm cut, but could if there was a slicing action on withdrawal. In this regard Dr Curtis’ report describes a number of knives with blades of around 1.6 cm to 2.0 cm width, which he describes as unlikely to have caused the wounds. None are eliminated entirely and logic might suggest the same could be said about a normal design steak knife.”

Later, in February 2011, he was further asked:

“Is it possible that the wound could have been inflicted by what might be termed colloquially ‘a steak knife’ or a similar sized knife?”

His response was as follows:

“This is somewhat subjective, but based on the information I have regarding external dimensions of wounds and cuts to clothing, this is possible. The damage to the front of the jacket is 35 mm long. A blade of 35 mm would seem large for what might be described as a steak knife. If however, the fabric was also sliced to some extent the blade could have been narrower, and within the realms of what might be described as a ‘steak knife’.”

10 A motion was brought to admit Dr Woods’ statements as further evidence on the hearing of the appeal. This was contested, and affidavits were sworn by Dr Curtis, who maintained his opinion as expressed at the trial. He said:

“I say that I stand by my opinions, expressed on pathological grounds, regarding these knives and their potential for having inflicted the wounds seen on the body of the deceased, Desmond Kimmins.”

He also stated that the issues regarding the clothing of the deceased should be addressed by a forensic scientist. A further affidavit was delivered by Hilary Clarke, forensic scientist, who stated:

“There are many variables that can be expected to affect the length of a stab cut in a garment….For these reasons it is not possible to make an accurate assessment regarding stab wounds on the basis of damage to garments. The injuries to a person caused by knife wounds is the pathologist’s area of expertise.”

11 The application to admit fresh evidence is central to this aspect of the appeal and largely determinative of it. If the court concludes that the evidence should be admitted, it must inevitably mean that the conviction must be quashed and a retrial ordered, since this court could not seek to resolve the issues raised in the respective affidavits. Even at this stage, and after the lengthy period of investigation and correspondence, the position in relation to the knives is less than clear. Furthermore the prosecution pointed out, no pathologist’s report was proffered on behalf of the defence. No knives were ever produced which the appellant identified as those which he used. There was a block containing steak knives in the kitchen of 38 Rathmullen Park with one knife missing but Anne Guildea had confirmed that one knife had been missing for some time. Accordingly those knives could not have been the weapons. There was a degree of vagueness in the account given by the accused in interviews with the gardaí as to the nature of the knives, and indeed whether they were obtained in the hallway or in the kitchen of the premises. There is in any event no specificity about the description of the knife as a steak knife. That description is capable of covering quite a wide variety of knives. The relevance of this issue therefore is at best that the accused was maintaining that the knives he used were smaller than the knives identified by Dr Curtis as the type of knife which could have inflicted the wounds in question.

12 Counsel for the appellant accepted for the purposes of this application that the evidence of Dr Curtis was, as a matter of law, admissible at least in principle, and if inadmissible was only inadmissible on fairness grounds. He argued that the factual evidence in the case was still quite confusing and that the facts, and therefore the case, were finely balanced and it was in that context that the evidence had to be assessed. The test for the admission of evidence on appeal was that set out in People (DPP) v. O’Regan [2007] 3 IR 805 (“O’Regan”). The principles identified in that judgment (para. 69): are as follows

“(a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.

(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.

(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”

13 It is clear that the question of the admission of fresh evidence is one which must be approached with considerable care. There are very few trials whether criminal or civil, where it is not possible, once all the evidence and submissions are played out, to conceive of some fresh argument, tactic or piece of evidence which might have had some importance. The principles applied by the courts illustrate therefore an appropriate caution about the admission of further evidence. Indeed an issue might arise here as to whether the evidence sought to be admitted, or at least evidence to the same effect, might not have been obtained with reasonable diligence prior to the trial, and if not, and if the evidence was considered central to the case, whether an adjournment could have been or ought to have been sought. However, the court considers it preferable to address the question of the admission of fresh evidence by addressing the fundamental question as to whether the evidence might have had a material and important influence in the outcome of the case.

14 As the Supreme Court in O’Regan observed, it is critical that the assessment of materiality must be conducted in the context of the case and the other evidence of the trial, and not in isolation. For that reason, it is particularly important to attempt to analyse the fresh evidence, and to place it in the context of the evidence given at the trial. When this exercise is carried out it is apparent that this case is certainly far-removed from the text book situation where a decisive piece of evidence emerges which clearly undermines a key component in the trial. Here, the evidence itself, while undoubtedly credible, is far from compelling. Taken at its height, it would eliminate one knife as the type of knife which could have caused the injuries. It did not exclude the second knife as being the type of knife which could have caused the chest injuries. At best the evidence suggested that it could not be excluded that the injuries were caused by a steak knife, albeit acknowledging that in the case of the chest injuries, that appeared unlikely. This evidence was given from the perspective of a forensic biologist from the analysis of the cuts in the clothing of the deceased man. All of this evidence relates to a piece of additional evidence which far from being central to the case, is very remote from it.

15 It is necessary to identify precisely what was in issue in this case. There was no issue but that Mr Kimmins died from stab wounds inflicted by the appellant. The only questions, as the trial judge observed in making his ruling on the admissibility of the evidence, were first whether the prosecution had demonstrated that the accused had the requisite intent for a charge of murder, and second, whether the prosecution had negatived the possibility of the accused acting in self-defence, albeit using excessive force, so as to reduce the crime from murder to manslaughter. These were difficult cases for the defence to run in the circumstances of the present case. In truth, given that these were the issues in the case, a legitimate question is why it was thought necessary to adduce this evidence at all. Counsel for the respondent in this appeal has referred to the obligation on the prosecution to bring forward all relevant evidence, and this may indeed be the explanation, but that does not detract from the fact that on any view of the matters in issue in this trial, the relevance of the precise type of knife used to stab Mr Kimmins was limited and tangential at best. Any knife coming within the range described by the various witnesses was capable of being a lethal weapon, and it is certainly implicit in the approach of the defence to the case that to arm oneself with two such weapons was to use excessive force. Accordingly the precise dimensions of the knives do not appear to be central to any of the questions which were in issue in the case.

16 Counsel for the appellant has properly drawn to our attention submissions made on behalf of the prosecution when objection was made to the admissibility of the evidence. On that occasion it had been suggested, among other things, that the question of the knives was relevant to the credibility of the account proffered by the accused in garda interview. Counsel for the appellant also argued that expert evidence may carry a particular weight with a jury and that the production of the knives found as being the “type of knife” that might have inflicted the fatal wounds may have led to a suggestion in the minds of the jury that these were in fact the knives used. Had these aspects been more central to the trial, and had the evidence sought to be adduced been more clearly destructive of the evidence given and impressions created, then an issue might have arisen as to the necessity to admit the fresh evidence in the interests of justice. However, that is very far from what occurred here.

17 The significance, or lack thereof, of the additional evidence proffered by Dr Curtis in the context of this relatively lengthy trial, can be gauged from a number of factors. The evidence when first disclosed does not appear to have been considered to be of much significance. When it was finally served, it did not prompt an application for an adjournment. Instead an application was made to have the evidence ruled out as inadmissible, an application which was only made on the sixth day of the trial and an application which the judge was entitled to refuse. But most tellingly of all, the issue of the knives and what if anything could be deduced from them was referred to only in passing thereafter by the prosecution and defence and was not referred to at all by the judge in his closing charge to the jury. All the judge said of the evidence of Dr Curtis is to be found at page 16 of day 9:

“Dr Michael Curtis is the Deputy State Pathologist and he found that the cause of death was a penetrating wound to the chest and, as a contributory factor, a penetrating wound to the right upper arm.”

This is perhaps the best measure of the importance, or lack of it, which the question of the knives had at the trial. Nor is the relative unimportance of the question of the knives, at least as reflected in the judge’s charge, particularly surprising. It is difficult to see how the precise type of the knife used could assist in the determination of either of the issues which remained for the jury to consider, namely, the question of intention, and the question whether the accused was acting in self-defence albeit using excessive force. The important fact in this case is that the appellant, in the early hours of the morning of the 30th of December 2007, when the incident occurred, armed himself with weapons capable, on any view, of causing a fatal injury, and unfortunately did just that. In the circumstances the court is satisfied that the appellant has not established that the fresh evidence sought to be admitted might have had a material and important influence on the result of the case, and accordingly, without considering whether it might have been available with reasonable diligence at the time of the trial, the court refuses the application to have the evidence admitted.

Amended Ground of Appeal
18 It is seems clear that once the application to admit fresh evidence is refused, there is little remaining in the amended ground of appeal. It is not possible to say that the evidence of the type of knife used was not relevant, as was indeed acknowledged by counsel for the appellant on this appeal when he accepted that the evidence was prima facie admissible. He sought to argue that the evidence ought to have been excluded on fairness grounds, but as already analysed the evidence did not play a large part in the proceedings and this Court cannot agree that the evidence ought necessarily to have been excluded, and still less that the trial was rendered unfair by the decision to admit the evidence. Once it is accepted that the evidence itself was not significant in the trial then the formal service of the evidence shortly before the commencement of the trial and its admission does not amount to the type of unfairness which would lead to the quashing of the verdict of the jury.

Remaining Grounds
19 The remaining issues in the case were argued by junior counsel for the appellant. At the outset of the submissions she prudently abandoned grounds 9, 10, and 12. This was entirely sensible and realistic. It is understandable that many grounds will be canvassed in a notice of appeal but it is a proper and responsible discharge of counsel’s duty to seek to focus the hearing of the appeal and to discard grounds which have no realistic prospect of success. The remaining grounds of the appeal accordingly related to the trial judge’s refusal of the defence application for the direction of the close of the prosecution case (ground 7), the instructions given to the jury in relation to a disagreement (ground 11) and the trial judge’s refusal to recharge the jury on the question of the evidence in relation to the accused being bent over and face down in a headlock shortly prior to the fatal blows (ground 13).

Ground 7: Application for Direction
20 Counsel for the accused sought a direction at the close of the prosecution case on the basis, consistent with the case repeatedly made during cross-examination, that if the accused had been a in a headlock maintained by the deceased’s brother, Jim Kimmins, at, or shortly before, the time of the fatal blows, the jury would have difficulty in determining whether Des Kimmins ran into the knife and was stabbed in circumstances where the accused was struggling against Jim Kimmins and not attempting to strike Des Kimmins. Counsel also referred to the question of excessive force self-defence, although this issue received more emphasis at the time of the appeal hearing. The factual circumstances on which the appellant relied are set out clearly in the written submissions in this regard:

“There was significant evidence led by the prosecution to explain why the appellant might have thought it necessary to arm himself, including:

a. the appellant was 19 years of age

b. he was minding/babysitting his 6 week old daughter with his girlfriend

c. it was 3am in the morning

d. he had been inside the house all evening

e. the sister of the deceased entered the house without knocking or any warning and walked straight into the kitchen demanding information

f. a verbal altercation began between the women, two other female members of the deceased’s family having arrived and moved in to the garden

g. at this point the appellant was present but taking no part whatsoever in the altercation

h. five men arrived at the house including the deceased

i. the deceased was very drunk as confirmed by a number of witnesses, including the taxi driver and the autopsy results

j. it is accepted by the deceased’s family members that he could be violent and aggressive when drunk

k. they were so concerned that when the deceased was leaving his brother’s house earlier to go home, that they escorted him part of the way so that he would not go down to 38 Rathmullen

l. they were so concerned as to what might happen that when they saw him approaching the house that they asked the women to stop arguing as Des was coming

m. they were so concerned that they actually tried to stop him from approaching the house by persuasion and/or physical restraint

n. there was a history of violence perpetrated by the deceased at the address when he was drunk.”

21 This puts the case on behalf of the appellant with force and clarity. However, it is difficult indeed to obtain a direction on the basis that the jury must acquit. It is undoubtedly true that matters evolved in the garden of 38 Rathmullen Park at 3 a.m. in the morning and that the appellant, a young man of 19 years of age, found himself in a situation not of his making and created by the dysfunctional and fractious relationship between the deceased and Anne Guildea and which was fuelled by excessive consumption of alcohol, and possibly a history of violence. However, it is entirely regrettable that he too had been drinking, resorted to weapons, and threatened the deceased. It was never suggested that this was a premeditated act or was borne of any prior ill will or motivated by the prospect of reward or revenge. But there was however more than sufficient evidence upon which a jury could conclude, to the standard required by the law, that by arming himself, leaving the house and threatening the deceased and stabbing him, the appellant intended to kill or cause serious injury or was reckless in regard thereto, and was not merely using such force as he subjectively thought necessary to defend himself or others. Accordingly, the judge was entirely correct to reject the application for a direction.

22 During the course of this argument particular attention was addressed to the question of the headlock in which the appellant had been held by the deceased’s brothers. Counsel for the appellant sought to construct from the evidence a picture of the accused being not only held in a headlock, but also face down and bent away from the deceased and therefore sought to suggest that the circumstances were such that the jury could not be satisfied that he had the necessary intention to kill or injure the deceased. However, that was quintessentially a matter for the jury. The trial judge’s ruling (day 7, p. 71) was as follows;

“I’m satisfied that over and above statutory presumption, there is an abundance of evidence capable of going to the jury insofar as there are conflicts in the evidence and unreliability in the evidence. Those are factors for the jury to resolve. For me to resolve them would be to usurp their function. The murder charge may go the jury.”

The court considers that this ruling was entirely correct.

Ground 11: Instructions in Relation to Disagreement
23 Counsel for the appellant takes issue with the statements made by the trial judge. First, on day 8 (p. 40) he said:

“Mr Foreman, members of the jury, you now have to hear from me and you have to hear from me in relation to matters you’ve heard of from counsel already, perhaps several times over and perhaps at very great length, but the law is that you must hear these matters from me and if you don’t hear them from me, another court will declare a mistrial and another jury would have to undertake the burden of hearing this trial all over again.”

Subsequently the judge told the jury to put whatever they had heard about majority verdicts out of their head, that they were concerned with reaching a unanimous verdict, that being a verdict of all 12 members of the jury, and that “Anything else would be a disagreement. And in that situation another jury would have to undertake the burden of trying this case all over again.” (day 8, p.43). Counsel for the appellant criticised this statement particularly against the background of other statements and observations made by the trial judge which, it was argued, indicated impatience with the defence team and created an oppressive atmosphere.

24 Looked at with the calm and distance created by an appeal, it is of course always possible to conceive of matters in the conduct of a trial (and not just the conduct of a judge) which could have been improved upon. But the process of an appeal is much more than a retrospective evaluation of the conduct of the professional participants. In considering whether the nuances of a judge’s charge could have had the consequences of rendering the conviction unsafe, it is particularly important to recall that these are matters delivered orally to a jury which hears it for the first and only time. As Professor Walsh, Criminal Procedure, (Dublin; Thomson Round Hall; 2002) at p. 936, observes:

“Ultimately, it must be remembered that the judge’s summing up to the jury is an oral presentation which the members of the jury hear only once. Accordingly, its adequacy and/or accuracy must be assessed on the basis of the impact it can be expected to have had on the jury at the time in the courtroom…”.

This echoes the observation of Kennedy C.J. in A.G. v. O’Shea [1931] I.R. 713, at pp. 726-727:

“In general this Court should not approach the consideration of the trial Judge’s charge to a jury at the end of a trial as a written document to be read and examined as it appears before us on paper, but we should consider and value it for what it was – the living, spoken word of the Judge, addressed to the minds of the jurors through their ears, but heard once only, to produce certain immediate effects and impressions, and delivered in the atmosphere of the trial created by the evidence, the speeches of counsel, and the whole conduct of the proceedings.”

Approaching the matter in this way, the court is quite satisfied that the matters referred to in the application could not conceivably be considered to have so affected the trial as to render the conviction unsafe. |The comments of the trial judge merely emphasised the position that pertained at that stage of the trial, which was that the jury was required to reach a unanimous verdict.

Ground 13: Recharge in Relation to Headlock
25 It is apparent that at the trial, the defence placed very considerable emphasis on the evidence of Jim Kimmins, and others, that he had put the appellant in a headlock during the struggle. This was pursued in cross-examination as follows:

“Q. And isn’t it the case that as you pushed him back towards the front door, with him in a headlock, that had the effect of forcing his head downwards so that he was looking down at the ground; isn’t that the case?

A. I don’t know what way his head was.

Q. And he was bent somewhat at the hips?

A. Yes.

Q. He would have been?

A. Yes.

Q. Isn’t that the natural result of grabbing somebody in a headlock?

A. Yes.”

(day 2, p. 5)

The trial judge recounted the fact that Jim Kimmins had said that he had held him in a headlock, but did not refer to the fact (if it was so) that the accused was being held face down and away from Des Kimmins. Accordingly the trial judge was requisitioned on the point and it was suggested “the evidence went a little bit further than that in a very important respect because Jim Kimmins under cross-examination either accepted or didn’t reject that Keith Cunningham was bent over and facing downwards towards the ground in the situation of a headlock” (day 9, p.19). Accordingly the judge was asked to recount that piece of evidence for the jury. In the first case, it is apparent that this formulation of the evidence was perhaps optimistic on the part of the appellant. In any event, the jury had heard the evidence, and the court does not consider that the nature of the evidence was such as to require it to be paraphrased in detail. While the evidence was confused, counsel’s understandable attempt to create a situation where the evidence fixed the accused as being bent over facing down towards the ground and away from the injured party at the time the fatal blow was struck, was a difficult and somewhat artificial task. The court considers that this ground of appeal fails and accordingly, leave to appeal is refused.

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