THE COURT OF CRIMINAL APPEAL
Murray, J. [CCA 30/11]
Herbert, J.
de Valera, J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND
MICHAEL O’CALLAGHAN
APPLICANT
JUDGMENT of the Court delivered on the 31st day of July, 2013 by Murray J.
1. The applicant was convicted by a jury of two offences in the Cork Circuit Court on 15th February, 2011. The first offence was robbery contrary to s.14 of the Criminal Justice (Theft & Fraud Offences) Act, 2001 and possession of a firearm or imitation firearm with intent to commit an indictable offence contrary to s.27B of the Firearms Act, 1964, as substituted by s.60 of the Criminal Justice Act, 2006, and as amended by s.39 of the Criminal Justice Act, 2007.
2. He was sentenced to 10 years imprisonment on each count to run concurrently with each other but consecutive to a three year sentence imposed upon him in 2009.
3. The applicant applies for leave to appeal against his conviction on a range of grounds arising from the conduct of the trial and the evidence tendered to the jury. The Court has considered the various grounds upon which the applicant sought leave to appeal but has decided that it is only necessary to address one of them, Ground No. 4, for the purposes of deciding this application. The grounds of appeal (in their amended form) may be summarised as follows:
(1) The learned trial judge erred in admitting as evidence before the jury, pursuant to s.16 of the Criminal Justice Act, 2006, a statement which had been made by a witness to the gardai.
(2) The learned trial judge erred in permitting a garda witness to give evidence as to where a civilian witness had located a “balaclava” in the absence of corresponding evidence from that civilian witness that he had showed the garda witness where the balaclava was located.
(3) The learned trial judge erred in admitting evidence of the forensic scientist where the statistical basis on which she based her calculations were not disclosed to the defence.
(4) The learned trial judge erred in failing to withdraw the case from the jury on the basis that there was not sufficient prosecution evidence so that a reasonable jury properly directed could have convicted the applicant.
(5) The verdict of the jury is perverse in all the circumstances of the case.
(6) The learned trial judge erred in finding that the court had jurisdiction to try the accused in the absence of any evidence on the face of the return or before the court that the DPP had consented to the matter being returned to the ordinary courts.
(7) The learned trial judge erred in failing to accede to the defence request that all witnesses be excluded from the court until after they had given evidence and in particular in permitting certain garda witnesses to remain in court.
Background Facts
4. On the 26th March, 2009 at approximately 2.40 p.m. two men entered the public area of the Post Office, Blackpool, Cork by kicking in a door leading to that area. They were both wearing balaclavas and what were described as a kind of khaki green jackets – “a kind of combat jacket”. One of them was armed with what appeared to be a handgun. One of them told a member of the staff to open the drawer with money in it. The man with the gun stood there pointing the gun at them. One member of the staff described the balaclavas as black with cut outs. A staff member described the one who spoke as speaking with a Cork City accent. Just under €20,000 was stolen.
5. Mr. Brian Galvin, a witness called by the prosecution, described in evidence how on the date in question he was walking down Commons Road to go to Blackpool Post Office. As he was walking down he saw two people running against him carrying a gun. He said there was a driveway or a footpath to a house which he stepped into out of the way. When asked what they were wearing he replied that he couldn’t be sure. He was asked if he could see their faces and he replied “Not that I recall, No. No I think they were wearing hats or balaclavas or something to that effect …” In his oral evidence he could not be precise as to how close the two men were to him other than to indicate that it was something in between 2 ft. and 20 ft. He did not recall them saying anything to each other and could not describe the balaclavas that they were wearing. He stated that the two men continued on up the road and he remembered that there was a car “shot up from somewhere” parked on the road but he could not describe the car. He remembered the gardai arriving and stated he headed away from the Post Office at that point. When asked what he did after the gardai arrived he said he went back to work. When asked how long did he stay with the gardai he stated “not long, from what I can remember.” At this point counsel for the prosecution applied, in the absence of the jury, for liberty to treat the witness as a hostile witness, or if that application should fail he would make an application pursuant to s.16 of the Criminal Justice Act, 2006 to have a statement, in the Book of Evidence, which the witness had made to the investigating gardai read to the jury.
6. It is sufficient to note, for present purposes, that so far as the oral evidence of Brian Galvin was concerned his overall approach was that since two years had elapsed since the date of the robbery, which was something which happened very quickly, he cannot remember things specifically. Thus he could not remember the specifics of what he said in his statement to the gardai at the time. For example, he stated “I remember getting out of the way and walking down a driveway but I couldn’t say that I remember seeing somebody’s face at the time. You know I met the guards at the Post Office and again I couldn’t tell you, those guards might be here today.”
7. The outcome of the application of the prosecution was that the trial judge decided to admit the statement, which had been made by the witness, Brian Galvin to the gardai, pursuant to s.16 of the Act of 2006. Section 16(1) of the Act provides:
There are other criteria specified in the section which must be satisfied before the statement can be admitted for that purpose. In addition to compliance with the criteria provided for in the section the section also provides that the Court shall refuse to admit the statement if its admission would be unfair to an accused.
8. Although issues have been raised by the applicant concerning the decision of the trial judge to admit the statement pursuant to s.16 the Court does not consider that it is necessary for the purposes of this judgment to refer to the evidence and arguments heard by the learned trial judge in the absence of the jury on this issue. What is relevant to the overall facts and circumstances of the case is the content of that statement as admitted to the jury.
9. The statement of Mr. Brian Galvin which was read to the jury was in the following terms:
"This afternoon I parked my car on the Commons Road, Cork. I was parked almost directly across from the mechanic's garage. I was on my own and I walked from my car towards the post office in Blackpool. As I was walking up the road on the river side I saw two men running towards me wearing balaclavas. One was carrying a gun and both were carrying what looked like bags of money. The first fella was wearing a greyish-green army-style jacket, black balaclava, five foot 10 inches approximately, medium build and he was carrying a black-grey handgun. The second fella was wearing a grey balaclava and what looked like an army-style jacket with what looked like camouflage lining or something, five foot nine approximately, slightly smaller than the other guy, medium build, blue jeans. As they approached me, I saw the gun and I walked into the pathway of a house. I continued to look at the two as they were running past me. They were speaking to each other in what I thought was an eastern European accent. The second fella, who didn't have the gun, then took off his balaclava and threw it into the canal. I got a look at his face at this stage. He was about 10 feet away from me at this stage. He had a tanned complexion. He looked to be in his 40s. He looked to be struggling to keep up with the first fella. He was clean-shaven. When I saw his face, he was trying to take the balaclava off, but I didn't see what colour hair he had. I would definitely recognise him again. They ran past me and made their way over a footbridge into the car park of a housing estate. I ran back to see where they were going and they got into a black 00 C Opel Astra and the numbers 9 and 2 were in the second half of the reg. There were a good few numbers in the second half of the reg. This car was in the middle spaces of the car park. There was a third person waiting for them in this car but I didn't get to see them. The two men got into the car and the car drove out of the estate from an exit further up from the footbridge and turned right up the Commons Road. It drove off at speed. I walked back down to the post office to see if everything was all right. I waited then for the guards to arrive and I showed them where the balaclava was thrown and where the car was parked. This statement has been read over to me and I have been invited to make any alterations or additions I deem necessary but I do not wish to do so."
Untruthful Statements of the Accused
10. One “strand” of the prosecution case, as counsel for the prosecution himself described it, were untruthful statements made by the accused to the gardai concerning his movements on the day of the robbery, and in particular giving an account which conflicted with a later established and admitted fact that he had, prior to when the robbery took place, at midday on the same day, gone to the Post Office in question to collect his social welfare payments. At approximately 10.45 a.m. on the day after the robbery the gardai visited the premises in which the accused lived. They carried out a thorough search and took possession of a number of items including a social welfare receipt in the name of the applicant dated 26th March, 2009 with the time 12.07 on it. It was signed Michael O’Callaghan. Before leaving those premises the gardai asked the applicant to account for his movements the previous day having duly cautioned him. The applicant told the gardai that he had been in court with his solicitor the previous morning and left court around midday. He then went home and fell asleep. He stated he woke up eightish or nineish that evening. He then went to a place called The Groves and had a pint there and then onto another place called Bredas and had one of two pints there. After that he went home. In the course of that interview the gardai put to him “So you were here asleep in this house from around 12 midday until 8 or 9 p.m., is that correct?” and he responded “Yes, thereabouts”. In response to the question as to whether he was on his own the previous day, the day of the robbery, he replied that he was in Charlies on The Quay. He had two pints and went home after that.
11. The gardai investigated this account of his movements and found that they were untrue. In particular that contrary to his account he had visited the Post Office to collect his social welfare at around midday that day. Apart from the social welfare receipt found in his flat this was borne out by CCTV cameras in different places that morning, but in particular in the Post Office itself. There was also CCTV footage of the two raiders at 3 o’clock that afternoon, but that footage was not such as provided evidence of identification of the raiders and in particular of the applicant. It was the prosecution contention that the applicant deliberately lied about being present at around midday in the Post Office because he wished to avoid any connection between himself and the Post Office on that day because of his involvement in the robbery in the afternoon. It was also established that when the premises in which the applicant’s flat is situated was entered by the gardai there was a team of eight gardai with automatic weapons and helmets along with a Detective Sergeant armed with a revolver. The applicant’s subsequent excuse or explanation to the gardai for not mentioning he had visited the Post Office to get his social welfare when he gave his account to the gardai in his flat, one hour after they had entered it, was to the effect that he had been traumatised by being woken up in his bed with a machine gun stuck in his face. He also stated that he knew his account would be checked out.
12. The essential point to note as regards this evidence, or this “strand” of the prosecution case is that the prosecution contended that the failure or omission of the accused to tell the gardai at that stage that he had visited the Post Office in question at about midday to collect his social welfare payment suggested that he wished to hide that he had been to the Post Office at that point, or any association with going to the Post Office that day, because he knew of the robbery which had occurred at 3 o’clock that afternoon due to his involvement.
13. The Court would comment at this stage that while the evidence of his failure to inform the gardai was relevant as part of the factual matrix, taken on its own it is too tenuous to establish any connection between the applicant and the robbery by two men later that day.
The DNA Evidence and the Balaclava
14. DNA evidence tendered by the prosecution at the trial which clearly connected the applicant to a balaclava found near the scene of the crime was the “third strand”, again as described by counsel for the prosecution, to the prosecution case. It was in fact the crucial evidence in the case which tended to link the applicant to the commission of the crime.
15. There was clear evidence that the two men who robbed the Post Office were wearing balaclavas. As set out earlier in this judgment the witness, Brian Galvin, gave direct evidence in Court that the two people he saw running against him, one of whom carrying a gun, from the Post Office were wearing balaclavas. He gives a more detailed account in the statement which was read to the jury pursuant to s.16 of the Act of 2006. In that statement he described that as he walked towards the Post Office he saw two men running towards him wearing balaclavas. One of them had a gun and both were carrying what looked like bags of money. The two men were speaking to each other in what he thought was an Eastern European accent as they passed him. After passing him one of them then took off his balaclava “and threw it into the canal”. He described him as having a tanned complexion and to be in his forties. He stated he would definitely recognise him again (although no such identification took place at any stage).
16. This was the first element in the evidence tendered by the prosecution leading to the tendering of DNA expert evidence. The next element is that given by Garda Niall Coughlan. He stated that as a result of what he had been told by Mr. Galvin he went to a footbridge near the canal and at this point Mr. Galvin pointed out a grey balaclava that was on the bank of the river. He kept the balaclava under observation until Detective Garda Niall O’Connell arrived, to whom he pointed out the balaclava. This Detective Garda took over the preservation of the scene.
17. On the basis of the foregoing evidence it was clearly open to the jury to conclude that the balaclava found by the garda member on the bank of the canal was one which had been worn by one of the two persons who had robbed the Post Office.
18. That balaclava was subsequently duly produced to Ms. Sandra McGrath, a forensic scientist who works in the area of DNA in the Forensic Science Laboratory. She gave evidence of receiving a piece of grey material which she described as “a homemade balaclava”.
19. She stated she had received this balaclava from the gardai and proceeded to examine it as a possible source of skin or epithelial cells. The latter is a biological term for a skin cell and when these are found on an item it is usually possible to obtain a DNA profile of the person, or persons, who were the source of those cells.
20. She also received a number of other items from the gardai which included a cigarette butt taken from an ashtray in the applicant’s flat when it was searched by the gardai and a number of swabs taken from the applicant by the gardai. From these items she was able to generate a DNA profile of the applicant.
21. The question then remained whether she could generate a DNA profile from any finding on the balaclava and if so whether it matched that of the applicant.
22. It is important to note that the balaclava was a “homemade” or a “non-manufactured” balaclava as Ms. McGrath expressed it in her evidence. She said it “appeared to be a sleeve cut from a grey jumper, so the sleeve was cut at the shoulder area, so it had a cuff and, you know, a sleeve up to here and there appeared to be two holes cut in one area. So, what I'm terming as the cuff area is technically what a cuff of a jumper is.”
23. She explained in her evidence that she was able to obtain a material sample from the nose/mouth area and she explained “…what I'm terming as the nose/mouth area is what I would assume, if this item was worn as a balaclava, that the two holes would be eye holes and what I would consider would be the area around these eye holes where the nose and mouth would be positioned.”
24. She described in her evidence how she mini-taped, which is the use of a sort of sellotape to take samples from the material, two separate areas of the balaclava. These were the inside of the nose/mouth area and the inside of the cuff area of the sleeve. As regards the nose/mouth area the profile obtained from this sample in this area “indicated the presence of a mixture; this means that there is DNA from more than two people present. This mixture consisted of a major male component and a minor component.”
25. She went on to explain “Yes, so in this mixture, it means we have DNA from more than one person, but there's a major component which means there's DNA -- a lot more DNA from one person and then a minor component is there's less DNA from the other person or persons.” This meant she said “…that you can clearly see the DNA from one person as opposed to the other people.”
26. Her evidence was that the major profile matched the profile of the applicant. She stated “I estimate the chance that an unrelated person chosen at random would have this same DNA profile is considerably less than one in one thousand million.” She was later in her evidence to give an opinion as to how this figure would be affected by the fact that the applicant had male siblings but this is not relevant for present purposes. Having dealt with her findings in relation to the nose/mouth area she turned to her findings as regards obtaining a profile from a similar mini-tape lift of the cuff area of the balaclava. She stated “The DNA profile obtained from the mini-tape lift from the cuff area of the balaclava again indicated the presence of a mixture, which again, is DNA for more than two people present. But this type of profile was suitable for further interpretation as a large number of individuals would be expected to match by chance, due to the number of DNA elements present. By this, I mean this profile didn't have more DNA from one person than from another as the first profile did. This one has DNA from two, three or possibly more people, but all at the same level. And this means I couldn't distinguish one person from another. So, therefore, we can't interpret it. It's a conservative way to report for us because it would be unfair to try and put people into a profile such as that one.”
27. In her evidence in cross-examination she again acknowledged that the balaclava appeared to be a cut-off from another garment, namely, a sleeve of a jumper. All the traces which she found on the homemade balaclava were invisible to the naked eye. It was not possible to say when any of the persons who had been the source of DNA material found on the balaclava had come in contact with the balaclava or with the sleeve. She added “The only thing we say is that, more than likely, this -- they've been deposited since the sleeve had been washed.” She could not comment on how long it might have been since the sleeve was washed. All she could comment she said was what was present on the sleeve when it had been recovered and she was not in a position to assist as to when the DNA material might have “arrived” on the sleeve.
Decision
28. The Court considers that counsel for the prosecution correctly summed up the case being made by the DPP against the applicant in his address to the jury when he referred to its essential elements as being threefold or consisting of three strands.
“The first one is you've got the evidence of Brian Galvin. The second one is that you've got the account of -- the account given by Mr O'Callaghan of his movements on the day in question to the gardaí. And the third one then is the DNA evidence.”
He was also correct in stating that the third strand, the DNA evidence, was the most relevant one. In fact, it is clear to the Court that it is the crucial one.
29. The evidence of Brian Galvin did not identify or otherwise directly link the applicant to the commission of the crime and it was not so contended by the prosecution. Mr. Galvin did not identify the applicant as one of the persons he saw without a balaclava, at the time, and there is no evidence suggesting a link between his description of one of the men as having a tanned complexion, clean shaven, in his forties. There is no evidence to link even such a tenuous description with the applicant leaving aside the witness’s reference to those persons speaking with an Eastern European accent. The importance of Mr. Galvin as a witness was, of course, his evidence concerning the removal of a balaclava by one of the persons who robbed the Post Office and the fact that that person threw it over the canal bridge. This is a crucial link between the balaclava found by the gardai on the bank of the canal and the persons who committed the robbery.
30. The next strand was the failure, deliberate or otherwise, of the applicant to mention to the gardai when questioned in his flat that he had, in fact, been at the Post Office to collect his social welfare payments at around midday that day. Whatever comments might be made about an inference drawn from this fact it could not, in the Court’s view, be a basis for inferring on its own that the applicant was one of the persons who committed the robbery later that day. Indeed, it was not contended, and could hardly be contended, that that in itself was sufficient to connect the accused with the commission of the robbery.
31. The crucial evidence therefore was the DNA evidence. It is quite clear that there was evidence before the jury from which they could conclude that someone with the same DNA profile as the accused had been in touch with the material which comprised the homemade balaclava at some point. If the only DNA traces on the balaclava came from such a person then there may well have been a ground for allowing the case to go to the jury.
32. However, that was not the case. The clear evidence of the forensic scientist is that there were at least three persons which had been in contact with the material and left traces which could be identified as DNA from those different people. The traces ‘lifted’ from the two different parts of the material disclosed in each instance DNA traces of more than two people. It is correct, of course, that only one element of those traces was sufficient to generate an actual DNA profile which could be used for comparative purposes, namely, that of a person with the same DNA profile as the applicant. Accordingly, this could amount to evidence that such a person had been in contact with the material consisting of the homemade balaclava. But there was also DNA evidence that at least two others were also in touch with that material. Of course, those persons have not been identified and the traces left were not sufficient to generate a proper DNA profile of any one of those individuals which could be used for comparative purposes. That does not take away from the fact that there was evidence that these other individuals were in contact with the material in question.
33. There is, of course, no evidence as to when any of those persons, including the person with the same DNA profile as the applicant, were in contact with the material other than a probability that the traces were left since the balaclava or sleeve was last washed.
34. Accordingly, the evidence connecting the applicant with the balaclava is no different than the evidence connecting the other persons with the balaclava albeit unidentified. The other DNA traces were not sufficient to generate a DNA profile of an individual but were sufficient to show that the other persons had been similarly in contact with the balaclava at some point.
35. DNA found on the homemade balaclava, which the other evidence in the trial established had been worn and discarded by one of the two men, was identified by the forensic scientist as matching the DNA profile of the applicant. However, the forensic scientist also established that DNA from two or more other persons was also present on this balaclava. The forensic evidence therefore went no further than establishing that the wearer of the balaclava could have been the applicant, a person with the same DNA profile, or any of these two or more persons. The finding of a lot more DNA matching the DNA profile of the applicant in the nose and mouth area of this homemade balaclava than DNA which did not match that profile was not shown to be evidence from which a jury, properly directed, could conclude beyond reasonable doubt that the applicant rather than one of the others had worn the balaclava after it had been fabricated from the severed sleeve.
36. The other elements or strands in the case, namely, the evidence of Brian Galvin, the failure of the applicant to tell the gardai of his midday visit to the Post Office to collect social welfare and the false account given to the gardai of his whereabouts between noon and 8 p.m. or 9 p.m. on the day of the robbery could not in themselves be sufficient to link beyond reasonable doubt the applicant to the commission of the crime. But this evidence together with some DNA evidence of sufficient probative weight, if tendered, could have been capable of doing that.
37. In order that a jury be allowed to consider and determine whether an accused is guilty or not guilty there must be evidence before the jury which, if accepted, would entitle it to conclude, beyond reasonable doubt, that the accused committed the offence(s) on the indictment.
38. As already indicated, the forensic evidence in this case was that a person with a DNA profile matching that of the accused and a number of other people with different DNA profiles had been in contact with the material that made up the homemade balaclava at some undetermined time prior to its having been discarded by one of the two men on the canal. It may well be inferred that one of those persons in contact with the material was one of the persons who committed the robbery.
39. The forensic evidence did not suggest in any way that the DNA trace left by the person with the same DNA profile as the applicant in the nose/mouth area had any significance other than it was sufficiently large to permit an identifiable profile identical to the applicant’s DNA profile to be generated. Its only evidential value was that he could have been one of three people who had been in contact with the balaclava or sleeve at some unknown point but probably since it was last washed.
40. There was nothing in the forensic evidence which would entitle the jury to differentiate between the various persons who had been in contact at some point with the balaclava material for the purpose of determining which one of them was wearing it at the time the robbery was committed.
41. Accordingly, the Court is satisfied that there was no evidence on which a jury properly directed could rationally find beyond reasonable doubt that one of those persons rather than another was the person who was wearing it at the time of the robbery.
42. In the course of his submissions to the trial judge that the case should not be allowed to go to the jury counsel for the defence submitted that there was not sufficient evidence to satisfy any properly directed jury to reach a conclusion beyond reasonable doubt that the person whose cells were found on the garment was the person who wore the garment during the commission of the offence. It is true that this submission was a detail among many other submissions made in relation to the evidence.
43. For the reasons stated above, the Court is satisfied that there was not a sufficient evidential basis from which a jury, properly directed, even if they accepted the evidence before it, could conclude beyond reasonable doubt that the applicant rather than any of the other, unnamed, persons who had been in contact with the balaclava material committed the offence.
44. As already explained, the other evidence was not a basis upon which a jury could link or identify the applicant as a person who committed the offence. Insofar as any inferences could be drawn from any of that evidence it was certainly too tenuous a basis for concluding that the applicant was one of the persons who committed the offences.
45. For these reasons the Court is of the view that the case should not have been allowed to go to the jury on the basis of the evidence, in particular the DNA evidence, and therefore that the verdict for the jury should be considered unsafe and set aside.
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