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Cite as: [2013] IECCA 6
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Judgment Title: DPP -v- Liam Bolger Neutral Citation: [2013] IECCA 6 Court of Criminal Appeal Record Number: 292/09 Date of Delivery: 14/03/2013 Court: Court of Criminal Appeal Composition of Court: Denham C.J., de Valera J., McGovern J. Judgment by: Denham C.J. Status of Judgment: Approved
Outcome: Refuse Leave to Appeal -v- Conviction | ||||||||||||
THE COURT OF CRIMINAL APPEAL CCA No. 292/09 Denham C.J. Between/ The People at the suit of the Director of Public Prosecutions Respondent and Liam Bolger Applicant Judgment of the Court delivered on the 14th March, 2013, by Denham C.J.
1. This is an application for leave to appeal by Liam Bolger, the applicant, who is referred to as “the applicant”, against conviction. 2. The applicant was convicted on the 17th November, 2009, at the Central Criminal Court (Carney J.), for the offence of murder, and was sentenced to life imprisonment, the sentence to run from the 13th September, 2008. 3. The applicant was charged as follows:- Statement of Offence Murder, contrary to common law and as provided for by section 4 of the Criminal Justice Act, 1964. Particulars of Offence Liam Bolger, on 13th September, 2008 at Byrnes Bookmakers, Killester Avenue, Donnycarney, in the County of the City of Dublin, did murder one Christopher Barry. 4. The applicant has filed eight grounds of appeal against his conviction:-
(ii) The Learned Trial Judge erred in law in circumstances where he found the applicant to have been unlawfully detained by Garda Ronan Clogher and subsequently arrested at a time when he was unlawfully detained and accordingly the fruits of that arrest ought to have been excluded from the evidence.
(iii) The Learned Trial Judge erred in law and in fact in allowing the admission into evidence of an interview with the applicant whilst in Garda custody, in which interview sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007, were invoked. (iv) The Learned Trial Judge erred in refusing an application for a direction at the conclusion of the prosecution case.
(v) The Learned Trial Judge erred in law and in fact in the manner in which the jury were re-directed when requested by them on the issue of inferences to be drawn under sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act, 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007.
(vi) The Learned Trial Judge erred in law and in fact in re-charging the jury on the issue of the consequences of the applicant's original solicitors’ advice in respect of inferences to be drawn thereto.
(vii) The trial was unsatisfactory by reason of the reliance, by the prosecution, upon phone records which sought to demonstrate the presence of the applicant in the vicinity of the murder of Mr. Christopher Barry, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence, taken at its highest, demonstrated nothing more than mere presence at a particular place.
(viii) The trial was unsatisfactory by reason of the reliance by the prosecution upon video surveillance evidence of an unidentified motorbike and rider travelling through certain locations in Dublin and similar evidence of an unidentified white van travelling through certain locations, in Dublin, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence neither identified the Accused nor any other person as being responsible for the movements of either the said motorbike or van.
(ii) Further or in the alternative to the foregoing, the applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence concerning test results on a hatchet found at the applicant’s address and evidence concerning mobile phones found at that address in circumstances where the search warrant power employed to search the applicant’s home is unconstitutional, thereby rendering the evidence so obtained and presented in the trial to be inadmissible.
(iii) Such other grounds as may be advanced at the hearing of this case with the leave of this Honourable Court. Counsel for Applicant The Five Issues (i) The legality of his arrest. Counsel submitted that there were consequences arising from an alleged unlawful arrest on the 13th September, 2008. (ii) The Damache issue. (iii) The inference from silence issue. Counsel submitted that the learned trial judge erred in relation to his charge and re-charge to the jury on the issue of drawing inferences from the applicant’s silence during interviews and questions put to him under s. 18, 19, 19A of the Criminal Justice Act, 1984, as, respectively, substituted by s. 28 and s. 29 and inserted by s. 30 of the Criminal Justice Act, 2007. (iv) The CCTV footage issue. Counsel submitted that the trial was unsatisfactory by reason of the reliance upon evidence of the applicant’s phone records and CCTV evidence to show an agreement by the applicant to act in a joint enterprise for the murder in issue when the evidence could not be probative of such matters. (v) The direction issue. Counsel submitted that there was a failure by the learned trial judge to give a direction at the end of the prosecution case. The legality of his arrest 10. The applicant was arrested on the 13th September, 2008 at 5.45 p.m. by Detective Sergeant Kelly. It was the applicant’s case that he had been placed in unlawful detention by Detective Garda Clogher from approximately 5 p.m. onwards before he was arrested at 5.45 p.m.. It was submitted that this tainted the arrest and subsequent detention and thus the exclusionary rule would apply to any evidence obtained. 11. On the 6th November, 2009, the trial judge at p. 32 lines 4 to 19 of the transcript ruled:-
Accordingly, I find that period of one hour or so to be unlawful, an unlawful detention, but I don’t see any infirmity in relation to the validity of the arrest of Sergeant Murphy or Sergeant Kelly. Jury back please.” 13. As to the issue referred to as “detention”, between 5 p.m. and 5.45 p.m., this was at the side of the road; the applicant had been stopped by gardaí, he was cautioned and then signed Garda Clogher’s notebook admitting the false name of Peter Byrne on the registration booklet for the van and ownership of a telephone number. While the Court has considered the finding of the learned trial judge and the submissions of counsel, it does not believe that the matter warrants any consequent effect, in all the circumstances of the case. The arrest was based upon reasonable suspicion, which was independent of any issue of detention. Thus, the Court would dismiss this ground of appeal The Damache Point Does the decision in Damache apply to the applicant? 15. On the 23rd February, 2012, the Supreme Court, in Damache v. Director of Public Prosecutions [2012] IESC 11, granted a declaration that s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976), and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution, as it permitted a search of the applicant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person. Submissions of the Applicant (ii) It was submitted that the applicant is entitled to raise the issue before the Court, as there was no finality to his proceedings, as his appeal has not been determined. (iii) It was submitted that the applicant did not elect or acquiesce in the construction of an unconstitutional state of affairs as the Damache judgment occurred after his trial. Thus, counsel submitted, this case is different to the State (Byrne) v. Frawley [1978] I.R. 326 and Corrigan v. Irish Land Commission [1977] I.R. 317, as the constitutional invalidity of the jury system in Byrne and the composition of the Land Commissioners hearing the case in Corrigan were held in both cases to have been known to the parties at the time when the legal proceedings were conducted and determined. (iv) The applicant argued that his proceedings were not yet finalised, that his appeal had been in the list of the Court of Criminal Appeal for some time as submissions were prepared. (v) It was submitted that the applicant relied on the legal advice available to him at the time of the trial. It was stated that in light of the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Birney [2006] IECCA 58, [2007] 1 IR 337 at paragraphs 112 to113, it would have been surprising if advice was given to challenge the search warrant procedure at the trial since the Court in that case rejected arguments that a Superintendent independent of the investigation should issue a s. 29 warrant and also decided that the constitutionality of the section could not be argued in the court of trial. (vi) At the trial the applicant challenged the admissibility of other aspects of the prosecution case against him, where he was informed of the opportunity to do so by his legal team. (vii) In all the circumstances, it was submitted that the applicant is entitled to rely on the Damache judgment so as to ground arguments about the evidence obtained on foot of the search warrant. Decision on Damache Issue 18. However, no formal challenge to the legality of the search warrant was raised during the trial, nor was there any reference to the possibility of the infirmity of the legislation, for the record. 19. In A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 2 ILRM 481, [2006] 4 IR 88 at 143, paragraph 125, a general principle was stated by Murray C.J. (as he was then):-
21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal. 22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal. 23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-
Dealing firstly with The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, I expressed in my judgment in that case the view that some error or oversight of substance, sufficient to ground an apprehension that a real injustice had occurred, must be demonstrated before the Court of Criminal Appeal should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to the court to explain why the particular point was not taken. Otherwise cases where a trawl through a transcript long after a conviction is recorded will continue to occur to see if some point can be found or some new case made which competent lawyers at the trial itself did not see fit to raise.” 25. Once a strategy has been taken by an accused in a trial, then another approach may not be taken on appeal. The matter was addressed by Geoghegan J. in Cronin (No. 2) at 339, paragraph 20:-
28. In Director of Public Prosecutions v. Kavanagh, Farrelly and Corcoran [2012] IECCA 65 (Judgment of the 24th May, 2012, by Denham C.J.), the matter of the constitutionality of the warrants issued under s. 29 of the Act of 1939 was raised for the record during the trial. It was found in that case, at paragraph 52:-
‘I wish to say and submit to the Court that it is an unconstitutional provision and that it is also in breach of the European Convention on Human Rights in relation to Article 6 right to a fair trial and the Article 8 provisions concerning privacy. I am just simply putting it on the record. […] I simply say that the investigating officer is effectively a Judge in his own cause and that it offends against two principles, guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution and Article 8 of the European Convention on Human Rights and it also offends against the guarantee of a fair trial enshrined in Article 38 of the Constitution and that in issuing the warrant he was acting as a Judge in his own cause as head of the investigation. I say it is a breach of fair procedures because there is no impartial or independent assessment of the need for the warrant in the first place and I simply put that on the record.’” 29. Similarly, in The People (Director of Public Prosecutions) v. O’Brien [2012] IECCA 68 (Judgment of the 2nd July, 2012, by Hardiman J.), the Court had to consider whether an appellant could rely on Damache. That was an appeal from the conviction in the Special Criminal Court of the 7th December, 2010, of membership of an illegal organisation. Detective Superintendent O’Sullivan had issued a warrant under s. 29 of the Act of 1939 for the search of Barry O’Brien’s house. The Court stated:-
‘precipitating cause of the arrest was the finding of the money under the mattress. In fact, there were a number of items found before that and we’re satisfied that that was not the sole cause of the arrest. And we find the arrest to be valid under that heading.’ This ruling was, however, delivered over a year before the Supreme Court held in Damache that s. 29 of the Act of 1939 was unconstitutional.”
32. However, in this case the issue of the s. 29 warrants was not raised during the trial. 33. The conclusion in the Damache case was not an unexpected result. As recorded in Damache the Morris Tribunal [Report of the Tribunal of Inquiry set up pursuant to the Tribunal of Inquiry (Evidence) Acts 1921 – 2002 into Certain Gardaí in the Donegal Division] (Government Publications 2006) considered the proportionality of s. 29(1) of the Act of 1939. The conclusions and recommendations of Chapter 6 ‘The Burnfoot Module’ at paragraphs 6.23 to 6.24 stated:-
Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances. The Tribunal, therefore, recommends that urgent consideration be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit court. This, the Tribunal believes to be in keeping with best modern practice in this regard as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand.” Decision on issue as to whether the applicant can rely on Damache (ii) An appeal is the review of a trial, the run of the trial, and the decisions taken during that trial. It is not a hearing de novo. (iii) Thus, while the proceedings are not yet finalised, they proceed as an appeal and not as a trial de novo. (iv) In general, an issue not raised and determined during a trial may not be raised on an appeal. (v) The applicant did not raise the Damache issue at his trial, as was done in Cunningham and Kavanagh and O’Brien. (vi) On behalf of the applicant reference was made to People (Director of Public Prosecutions) v. Birney [2006] IECCA 58, [2007] 1 IR 337 at paragraphs 112 to 113. This case clearly indicated concern as to the constitutionality of s. 29 of the Act of 1939. While it stated the issue could not be determined in the Court of Criminal Appeal, it alerted persons to the possibility of raising the matter in another court, as was done in Damache. Thus, the applicant’s counsel would have known of the concerns raised by the Court in Birney. Yet no steps were taken by the applicant. (vii) The general rule is that an applicant may not raise new issues not raised and determined at a trial. However, as stated in Cronin (No. 2) at 339 and 346, the Court could intervene if it were of the view that a fundamental injustice had been done or there was a reasonably explained substantial error leading to an apprehension of real injustice, which in the instant case would allow the Damache decision to be argued further. (viii) Thus, prima facie, this is not a case where the Damache decision may be raised. However, the Court heard submissions on the evidence obtained pursuant to the s. 29 warrant, and the other grounds of appeal, to determine if a fundamental injustice has been done or there is a reasonably explained substantial error leading to an apprehension of real injustice. The inferences from silence issue The applicant further contended that the learned trial judge erred in failing to provide adequate assistance to the jury on the considerations involved in the drawing of inferences from a person’s silence and, in particular, on how such inferences could be corroborative of the prosecution case. Further, that the learned trial judge erred in directing the jury as to a person’s right to silence on foot of legal advice provided to him. Statutory Law
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,
(ii) in or on his or her clothing or footwear,
(iii) otherwise in his or her possession, or
(iv) in any place in which he or she was during any specified period, (2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies. (3) Subsection (1) shall not have effect unless—
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
[…]
(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.”
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, (2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1). (3) Subsection (1) shall not have effect unless—
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.
(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.”
(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.
(3) Subsection (1) shall not have effect unless—
(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred. (5) The court (or, subject to the judge’s directions, the jury) shall, for the purpose of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.” 40. The applicant was arrested by Detective Sergeant Gary Kelly, who informed him that he was arresting him under the provisions of s. 30 of the Offences Against the State Act, 1939, as amended. Detective Sergeant Kelly gave the applicant a legal caution and explained that it related to the unlawful possession of firearms where Christopher Barry was murdered at Killester Avenue. The unlawful possession of a firearm for which the applicant was arrested enabled the members of the gardaí to question the applicant for other related offences, provided the arrest was not a contrivance or a device for that related questioning. In this case, the applicant was arrested for an arrestable offence, and murder is a related arrestable offence. The arrest was not a colourable device, and thus the gardaí were entitled to question the applicant in relation to the murder. In this case the applicant was arrested for the unlawful possession of a firearm used in the murder of Christopher Barry. 41. The applicant was given an opportunity to consult his solicitor and was advised by his solicitor in relation to s. 18, s. 19 and s. 19A of the Act of 1984, as amended. The sections were also explained to him by members of An Garda Síochána. 42. The applicant’s situation was set out in the transcript of the trial on the 12th November, 2009 (Day 7), Detective Garda Brian Hanley was giving evidence. He gave evidence that he cautioned the applicant, informed him that the interview was being recorded, informed him that they were planning to question him under s. 28, 29 30 of the Act of 2007, and that he was entitled to consult his solicitor first. The applicant consulted his solicitor. 43. Thereafter there was another interview at 3.46 p.m. on the 16th September, 2008, once again the applicant was cautioned, he was told that the interview was being recorded, and that the gardaí were continuing to investigate the offence for which he was arrested. The applicant was asked if he had had an opportunity to consult his solicitor, and he answered “Yes”, and stated that he had been advised in relation to s. 28, 29, 30 of the Act of 2007. Also, s. 28 was explained to the applicant. The applicant was then questioned, and per the evidence of Detective Garda Hanley, the applicant answered as follows:- (See Transcript 12th November 2009 (Day 7) Evidence of Detective Garda Brian Hanley p. 22, line 33 to p. 25, line 11.)
Answer: Yes. Question: Has he advised you in relation to section 28, 29, 30 of the Criminal Justice Act 2007? Answer: Yes. Question: Brian is now going to read sections 28, 29, 30 of the Criminal Justice Act, he will explain them also in layman's terms; okay? Answer: Yeah.’ And thereafter you [Detective Garda Hanley] read out section 28 of the Criminal Justice Act 2007, and you explain in it layman's terms what that section means; is that correct? A. That is correct, my lord. Q. And then you ask a question: ‘Do you understand what I have said about this section? Answer: Yes. Question: Your solicitor has already explained these sections?’ And then you [Detective Garda Hanley] go on to explain section 28; is that correct? A. That is correct, my lord. Q. And Robert Comerford then asks the question: ‘Are you [the applicant] happy enough about section 28? Answer: Yes: Question: In accordance to this, I want to ask you about your Renault Kangoo van registration No. 03 MH 3275. How long have you had this van? Answer: About six months. Question: Where did you go to in this van last Saturday when you left the Cuckoo's Nest? Answer: This is a very serious case and I have been advised by my solicitor not to say anything in case I get into trouble.’ I think then you [Detective Garda Hanley] asked the prisoner to sign section 28 of the Criminal Justice Act; is that correct? A. That is correct, my lord. Q. ‘Answer: This is a very case and I don't want to put my initials to any documents, please, thank you. My solicitor has advised me to say “no comment”. Question: Did you loan that van to anyone? Answer: I have been advised to say “no comment”; I don't mean to be rude. Question: It is our brief this van was used in the murder of Christopher Barry last Saturday, where he was shot a number of times with a firearm, and you are being asked to account for this van last Saturday between 1.40 p.m. and 4 p.m.? Answer: I have been advised at this time this is my best interest to say “no comment”. I don't mean to be rude. Question: You understand that inferences may be drawn for your refusal to account for this Renault Kangoo van? Answer: Yes. Question: I believe you drove this van to Killester last Saturday and you are heavily involved in the murder of Christopher Barry. Are you refusing to account for your Renault van last Saturday the 13th of September? Answer: At this stage it is my best interest to say “no comment”. Question: What about Christopher Barry's interest? Answer: I thought that at the start I was going to be asked about sections 28, 29 and 30.’ Detective Garda Comerford explains why questions about the case are being put to the prisoner. ‘Question: Are you [the applicant] satisfied about the way I have explained? Answer: It is hard to take it all in to my best in my head, I'm trying to remember everything. Question: So you do understand? Answer: Yes. Question: Your Renault Kangoo van was observed by a witness in the immediate vicinity of Byrnes Bookmakers, Killester, at approximately 3 pm last Saturday. You have been asked to account for this van in Killester last Saturday? Answer: At this stage in the investigation, I have been advised to say “no comment”. Question: Is it okay if I put “no comment”? Answer: You answer the questions in any way you want to.’ If I repeat that. Oh, sorry, you are saying it is your answer? A. Yes. Detective Garda Comerford said ‘Is it okay if I put no comment to this’, and I [Detective Garda Hanley] just said to Liam Bolger to answer the questions in any way he wanted to. Q. And Mr Bolger answered ‘yes’ to that. ‘Question: Also under section 28, I want to question you [the applicant] in relation to the damage to your Kangoo van, 03 MH 3275. You have viewed CCTV footage of the Cuckoo's Nest last Saturday where it is visible that there is no damage to the door of the van. You have now been asked to account for the damage to your van? Answer: No comment. Question: Why did you lie to the guards when you said this damage happened prior to last Saturday? Answer: No comment. Question: You viewed the footage for time approximately 1.40 at the Cuckoo's Nest and there was no damage. And when you were stopped by the gardai at 4.30 pm there was damage. How did this damage happen? , Answer: No comment. Question: You do understand that refusing to answer questions about the damage to the van is a failure or refusal? Answer: At this stage I have been advised to say “no comment”.’” 44. In all the circumstances of the case the ruling of the learned trial judge was not an error. 45. The trial judge stated on the 12th November, 2009 (Day 7) at p. 20, lines 9 to 27:-
47. In this case (a) the applicant was advised by the gardaí that they intended to invoke the statutory provisions; (b) the applicant consulted with his solicitor; (c) the gardaí explained the sections of the statute to him in layman’s language; (d) the applicant indicated that he understood the caution; (e) the applicant engaged with the gardaí; (f) this was recorded on videotape. 48. The Court is satisfied that the evidence was properly admitted and would dismiss this aspect of the appeal. The CCTV Footage 50. The prosecution’s case against the applicant was that he was part of a joint enterprise with the person who shot Christopher Barry on the 13th September, 2008 at Byrne’s Bookmakers shop in Killester Avenue. It was the prosecution case that the applicant was the getaway driver for the gunman who shot Christopher Barry. 51. There was evidence that the applicant and his van, a Renault Kangoo registered number 03 MH 3273 left the Cuckoo’s Nest Public House, Tallaght, at approximately 1 p.m. on the 13th September, 2008. CCTV cameras confirmed this fact, as did a witness. The van was tracked by CCTV cameras and cross referenced by phone records to various phone cell sites on the route, referencing the applicant’s mobile phone, until it arrived and parked at La Vista Avenue, near to Byrne’s Bookmakers. The gunman came from the Howth direction and left the site of the murder and went to where the van was parked on La Vista Avenue, where he burnt the motorbike he had ridden, and he entered the van. This was witnessed by an eye witness who also identified the registration of the van. The witness rang gardaí by a 999 phone call. It was the same van as had been identified in Tallaght. 52. The issue of the video evidence was raised at the trial and the learned trial judge ruled that it was admissible. 53. The Court is satisfied that the learned trial judge was correct in fact and law in deciding that the evidence of the CCTV cameras was admissible before the jury, and that it was a matter for the jury whether it was satisfied that the white van on the CCTV footage was the material white van. 54. On the 11th November, 2009 (Day 6) at p. 3 of the transcript, lines 10 to 13 the learned trial judge ruled:-
The direction issue 56. At the trial on the 13th November 2009, counsel for the applicant made a comprehensive application for such a direction. The learned trial judge ruled at p. 9, line 24 of the transcript:-
Conclusion 58. Consequently, the Court would refuse the application for leave to appeal.
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