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Judgment Title: DPP -v- Brian McGinley Neutral Citation: [2013] IECCA 7 Court of Criminal Appeal Record Number: 298/10 Date of Delivery: 14/03/2013 Court: Court of Criminal Appeal Composition of Court: Fennelly J., de Valera J., McGovern J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Leave to Appeal v Conviction Refused | ||||||||||||
THE COURT OF CRIMINAL APPEAL CCA Ref. 0298/2010 Fennelly J. de Valera J. McGovern J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS Respondent -and-
BRIAN MCGINLEY Applicant Judgment of the Court of Criminal Appeal delivered the 14th day of March 2013 by Mr Justice Fennelly 1. The applicant has applied for leave to appeal against his conviction on 5th November 2010 at Tullamore Circuit Criminal Court on one count of aggravated burglary pursuant to Section 13 (1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The trial took place before His Honour judge Kennedy and a jury. The verdict of guilty was by majority decision of 10:2. The applicant also appeals against severity of the sentence of ten years imprisonment imposed on 1st December 2010. The crime 3. Mr Kilmartin had a service station and grocery in Athlone. It seems from the evidence that the object of the crime was the takings from the business. However, Mr Kilmartin had, in fact, lodged the takings at the bank safe in Athlone earlier in the day. 4. Mr Kilmartin was at home on the Sunday evening with his wife and three children, the eldest of whom was then 15. He had a BMW three-door hatch back, silver in colour, which he had driven to various places during the day. He went to his golf club. He bought some groceries at his own shop and put them in the boot of the car. He watched a rugby match at a pub and went home at about six o’clock. He parked the car around the back of the house and took the groceries out of the car. He closed down the boot and went in the back door. The family had dinner and watched some television. 5. At about eight o’clock one of the family dogs began barking aggressively. Mr Kilmartin went towards the back door. This was about 8:15 to 8:30 in the evening. The door was burst in and four men wearing balaclavas came into the house, carrying various implements, which Mr Kilmartin described as a sledge hammer and two iron bars. There was also a baseball bat. He was pushed back into the kitchen. He and his wife were made to kneel. There was shouting and roaring. The men asked: “where are the lodgements” and “where’s the cash.” They also asked: “where are the kids?” and “who’s in the house?” Mr Kilmartin said there were no lodgements: he had lodged the money earlier. They asked if there was a safe in the house. Mr Kilmartin said there was and offered to bring them to it. He led them upstairs to see it. 6. The men got the children down from upstairs. One of the men waved a knife which he took from a birthday cake. The safe was in an attic upstairs. Two men accompanied Mr Kilmartin to the safe. The other two remained downstairs. The men asked for a key to the safe, but there was none, as it had been lost. One of the men hit Mr Kilmartin. One of the men attacked the safe with the sledge hammer. They spent ten or fifteen minutes trying to open the safe but failed. They decided to take the safe with them. 7. They took all the family into a small bathroom. They took their mobile phones (except that of Mr Kilmartin’s father who had called to the house to collect a suitcase). Mr Kilmartin had his hands cable-tied. They also tied up Mrs Kilmartin and the children. The family heard loud noise as the raiders rolled the safe down the stairs. They asked and were told where to find the keys of the cars. They closed the family into the bathroom by tying the doorknobs on the outside. 8. Mr Kilmartin managed to break free from the ties on his hands and to phone the gardaí using his father’s mobile. They arrived after some fifteen minutes. 9. Mr Kilmartin went out to see what cars were gone. He saw that his car (the BMW) had been reversed up to within a few feet of the front door. His wife’s car was gone. The driver’s door of the BMW was open and the key was broken in the ignition. Mr Kilmartin then “noticed for the first time…a red stain on the left-hand side of the boot lid.” In cross-examination, he said that he recalled saying on an earlier occasion that there was blood on the boot of his car when he came out of the house. The gardaí told him to stay away from the car. They were preserving the scene. 10. In the course of the raid, the safe, containing some €8,000 in cash, and Mrs Kilmartin’s jewellery valued at some €80,000 to €100,000 were taken. Mrs Kilmartin’s jeep was taken and later found burnt out. The Garda Investigation 12. Sergeant Tulley saw a bloodstain on the boot lid of Mr Kilmartin’s BMW. He described it as “fairly obvious.” He said: “you would notice it” and: “There was droplets of blood on the boot lid.” Garda O’Connor had drawn it to his attention and he, in turn, drew it to the attention of Chief Supt Rattigan, who noted: “blood on boot lid” in his notebook.” In cross-examination, Sergeant Tulley said: “you wouldn’t miss it” and “those droplets of wet blood stood out.” He also described it as “fresh blood.” 13. Garda Eva O’Connor also saw the blood and said that it was very obvious. It was “fresh blood” and it was “bright red on the car.” 14. Chief Supt Rattigan noticed “quite a large bloodstain on the wing” of the BMW. Garda Michael Hogan, attached to crime scene investigation at Athlone, also saw a “blood mark” on the left-hand corner of the boot lid when he went to investigate the scene on the following day. 15. Mr Aidan Beatty, who operates a towing and recovery business, at the request of the gardaí, took the BMW on a truck to his own premises at Castledaly. He locked it and kept it locked in a shed until the gardaí came to inspect it on the following Tuesday. 16. Garda Michael Hogan worked on crime scene investigation and gathered forensic evidence from crime scenes. He examined the crime scene, gathered evidence and took photographs. On 14th February, he examined the BMW at Mr Beatty’s premises. He saw the bloodstain on the boot lid. He took two lifts from the blood as well as a swab of the blood. These were attached to Cobex cards, marked and labelled with specific numbers. He handed these exhibits to Sergeant Mary Mangan on 23rd February. 17. Sergeant Mangan took these exhibits with her to Garda Headquarters in Dublin on 23rd February 2005. The purpose was to have them examined and analysed by the Forensic Science Laboratory. She there handed them to Ms Pauline Nixon who accepted them and signed a receipt. 18. Ms Nixon received the exhibits in a brown bag. A number of documents were completed in the course of the transfer and keeping of the samples. Counsel has not invited the Court to consider these. They have not been produced. Among other things, Ms Nixon assigned a Technical Bureau number and a laboratory reference number. She placed the exhibits in storage. On 3rd August 2005, she handed the exhibits to Dr Linda Williams, the forensic expert. 19. Over this time, the gardaí conducted widespread inquiries into the crime. They recovered some of Mrs Kilmartin’s jewellery. On 18th July, Inspector James Delaney arrested the applicant pursuant to s.4 of the Criminal Justice Act 1884. He was detained at Athlone Garda Station. During his detention, Inspector Delaney observed that he had a scar on his left index finger. He also took a sample of the applicant’s hair pursuant to statutory powers. He informed the applicant, in accordance with s. 2(4) of the Forensic Evidence Act 1990, that the hair sample was being taken for comparison with blood samples that had been recovered from the boot lid of Mr Kilmartin’s car and that it would go to prove or to disprove his involvement in the commission of the offence. Garda Ray Grennan, whose job was the collection of items of evidence from crime scenes, was in attendance and witnessed the taking of the sample. Inspector Delaney handed him the hair sample. Garda Grennan packaged and labelled it. He retained the sample in his possession until 21st July 2005, when he handed them to Garda Michael Hogan. Garda Hogan conveyed the sample to the Garda Forensic Science Laboratory in Dublin for analysis. He there handed it to Ms Margaret Kelleher, the forensic receptionist and executive officer at the Forensic Science Laboratory, who received it. Ms Kelleher completed a form as follows:
21. Dr Linda Williams, forensic scientist with a Ph D in biotechnology, worked on DNA. She found that the DNA profile obtained from the blood sample lifted from the car matched that of the appellant. She also performed a test known as the Kastle-Meyer test on the lifts attached to the cards, which, she found, was inconclusive as to the presence of blood.
The trial The appeal
a. The evidence of Mr Gerald Oakman of having seen a person resembling “one of the McGinleys” in the vicinity of the crime scene and shortly before it was committed: b. The evidence of Inspector James Delaney that the applicant had a scar on his thumb as well as photographic evidence of the scar. 2. The learned trial judge erred in law in failing to withdraw the case from the jury when there was insufficient evidence that: a. The stain seen on Mr Kilmartin’s car was the blood of the applicant; b. The material analysed by Dr Linda Williams was, in fact blood, when it failed to test positive; c. That the hair sample examined by Dr Linda Williams was proved to be the sample taken from the applicant. 3. The learned trial judge erred in law in his direction to the jury regarding inferences which they could draw from the facts, in particular by using the facts of the instant case for examples; 4. The learned trial judge misdirected the jury with regard to certain facts, in particular by suggesting that it would be “far-fetched” to suggest that, if the the applicant’s blood was found on the boot of Mr Kilmartin’s car, it came to be there otherwise than by means of his participation in the robbery. 5. The learned trial judge failed to direct the jury correctly that they had to be satisfied beyond reasonable doubt that any item of circumstantial evidence was consistent with the guilt of the accused and not consistent with innocence. (a) Mr Oakman’s evidence 25. Counsel for the applicant argues that the evidence was irrelevant and prejudicial and that, at best, it tended to allege guilt by association. Counsel points out that, despite having ruled that Mr Oakman’s evidence was admissible, the trial judge told the jury:
26. The Court agrees that it was not consistent to say that, on the one hand, the evidence was admissible and, on the other, that it was not evidence against the applicant. The Court is, however, satisfied that the evidence was admissible. It was correct to allow the jury to hear evidence of the presence of people in a field in the vicinity of the Kilmartin’s home at a time before the raid. The matter can be tested in this way. If Mr Oakman had not been in a position to identify any of the people in the field at all, there would have been nothing to prevent its being admitted. It would have been part of the circumstances surrounding the events leading up to the raid on the Kilmartin’s home. It did not become inadmissible merely because one of the people in the field was said to look like “one of the McGinleys.” The judge was correct to treat it as one piece of potential circumstantial evidence. It is true, nonetheless, that the jury needed to be warned that it did not, in fact, identify the applicant. In fact, the learned judge went further by telling the jury not to take it into account at all. If there was anything prejudicial about this evidence, that effect was counteracted by the judge in his charge. The Court is satisfied that the charge to the jury negatived any possible prejudicial effect of the evidence. (b) Evidence of a scar on the applicant’s thumb 28. The Court is satisfied that the evidence of a scar on the applicant’s thumb was admissible as an element of circumstantial evidence. It was consistent with the presence of blood (scientifically linked with the applicant) at the scene. In the same way, it was important to see it in context. The learned judge directed the jury to treat the evidence of the scar as follows:
Ground No 2: evidence of blood on the car
Whether what Mr Kilmartin and the gardaí saw was the applicant’s blood 33. The forensic evidence that the bloodstain found on Mr Kilmartin’s BMW motor car outside his house after the raid matched the applicant’s DNA was, of course, the only evidence linking the applicant to the crime. Having said that, in view of the fact that the defence did not challenge the scientific basis of that evidence, it was of extreme, even decisive, importance to the case. 34. Not surprisingly, therefore, the entire focus of the defence in the court of trial was an attempt to break the chain linking the contested bloodstains to the applicant’s DNA as found in the hair sample taken from him. This included contesting that there was evidence that it was blood. 35. Counsel for the applicant makes two points. Firstly, the contested bloodstains were not necessarily placed on the car at the time when Mr Kilmartin and the gardaí saw them on the Sunday evening. They could have got there at any point earlier in the day as Mr Kilmartin drove to and from his business in Athlone, lodged money in the bank safe, went to his Golf Club and to a pub to watch a Rugby match. Secondly, what Dr Williams examined was not even blood: the Kastle-Meyer test was negative. 36. All these points are made in the sense that there was not even a case to go to the jury on the matter. On the principles of R v Galbraith [1981] 73 Cr. App. R 124 [1981] 1 W.L.R. 1039, there was no sufficient evidence from which a jury, if properly directed, could have concluded beyond reasonable doubt that the applicant was guilty of the crime with which he was charged. Lord Lane L.C.J. speaking for the Court of Criminal Appeal in England said that:
38. The first point, therefore, is whether there was evidence to go to the jury that the contested bloodstain on the BMW car was newly found after the raid on the Kilmartins’ home. The jury heard evidence from no less than three members of An Garda Síochána to the effect that they had seen a bloodstain on the boot lid of the car on the evening of 13th February. All described it as being on the left-hand side. They variously described it as “droplets of wet blood,” “fresh blood” and “bright red…” Most significantly, Sergeant Tulley said that it “stood out” and that “you wouldn’t miss it.” 39. This last point is important because Mr Kilmartin himself gave evidence that he “noticed for the first time…a red stain on the left-hand side of the boot lid.” This was when he came out of the house, having been freed from the bathroom where he had been imprisoned. He was not challenged in cross-examination on the point that he then saw the blood for the first time. It has to be recalled that he had earlier given evidence that he had placed groceries in the boot of the car, driven home and then removed the groceries from the car. Clearly, he would have had to open and close the boot to perform these operations. If the defence intended to cast doubt on the obvious meaning of his evidence by suggesting that the blood might have been there earlier but had escaped his notice, it should have cross-examined him on the point. He would have been given the opportunity of responding to questions as to whether he was correct in saying that he had seen the blood “for the first time,” or to suggestions that it might have been there earlier and that he had missed it. This did not happen. Mr Kilmartin’s evidence was not challenged. On the contrary, when Mr Kilmartin, during cross-examination, referred to his earlier statement that “there was blood on the boot of my car when I came out of my house,” counsel for the applicant said that that was “not in dispute.” This is not a case of an insufficiency or a gap in the evidence upon which the defence at a criminal trial is entitled to rely. Here there was positive and clear evidence, which was not contested. 40. In short, there is no plausible basis for the suggestion that what several gardaí saw and believed to be bloodstains on the back of the car and what Mr Kilmartin said he had seen for the first time came to be there at some unknown earlier time during the day. It was, of course, a matter for the jury, but there was overwhelming evidence of the presence of a bloodstain on the boot lid after the violent raid on the Kilmartin’s home and a compelling basis for inferring that it came to be there during the raid. 41. This point is closely linked with the second argument of the applicant. Counsel attached great importance to the acceptance by Dr Williams that the Kastle-Meyer scientific test which she conducted for the presence of blood in the sample was “inconclusive.” Counsel chose to describe this as a negative finding, even in the face of Dr Williams’ repeated insistence in describing the test result as inconclusive. She said that the Kastle-Meyer test was not definitive: it gave an indication of blood. The defence did not call any evidence to contradict Dr Williams. They were, of course, entitled to take that course. The consequence is, however, that the evidence is uncontradicted. On the hearing of the appeal, counsel for the applicant has continued to maintain that Dr Williams’ evidence showed that the test was negative. In effect, it was not accepted that there was any difference between the descriptions, “negative” and “inconclusive.” The Court is satisfied that the terms mean different things. If the Kastle-Meyer test had been negative, it would have meant that there was no blood in the sample. That would have meant that the material seen on the boot lid was not blood. The prosecution case would have failed. But that was not the evidence. It follows that there is no basis for the proposition that the learned judge should not have allowed the matter to go to the jury. The jury was entitled to consider it. 42. In this connection also, Dr Williams’ unchallenged DNA findings are crucial. Assuming the second comparator sample to be from the applicant’s hair, there is an unchallenged DNA match between it and the sample, whatever it be, lifted by Garda Hogan from the boot lid car. One is left, on the applicant’s case with a first proposition that the applicant’s DNA was found in something other than blood found in the same place on the boot lid of Mr Kilmartin’s car where the garda witnesses and Mr Kilmartin himself gave evidence that they had seen blood and a second proposition that, in some unknown way, that same DNA of the applicant (but not blood) became attached to Mr Kilmartin’s car. In the view of the Court, those propositions can fairly be described as far-fetched. 43. In the view of the Court, there was ample evidence from which the jury could conclude that the contested blood stain seen on the boot lid of Mr Kilmartin’s car was the blood of the applicant. Whether the chain of evidence supported the scientific evidence 45. For these reasons, counsel for the defence conducted meticulous and lengthy cross-examinations of many of the witnesses who had been concerned in establishing the chain of evidence leading to the analysis of the two materials. Four witnesses were questioned in great detail about the contents of forms completed and records kept. Two witnesses were of particular importance. These were, respectively, Ms Pauline Nixon, who was concerned with receiving, storing and transmitting the blood sample and Ms Margaret Kelleher, who was responsible for the receipt, storage and transmission of the hair sample. However, counsel has not included any of these forms in the material placed before the Court, attached copies to the submissions or invited the Court to examine the forms. Counsel has not invited the Court to reach any conclusion about the accuracy of the records kept. 46. However, counsel has laid great stress, in written submissions, on the fact that neither Ms Nixon nor Ms Kelleher was in a position to give evidence based on any actual recollection of the facts of the case. In other words, neither of them actually remembered receiving or transferring the samples. Each of them was wholly reliant, when giving evidence, on the documentation which had been completed whether by themselves or others. They believed that they had maintained accurate records and were satisfied to rely on them. They believed that they had maintained the chain of evidence. 47. Counsel appeared to accept, at least at one point, that a witness, in that case Ms Kelleher, understandably could not possibly be expected to remember every delivery of a file and that the only possible solution was to have an absolutely set procedure so that everybody was doing the same thing. Nonetheless, one of the grounds of appeal criticises the learned trial judge for his direction to the jury insofar as he might have led them to believe that the documents created by the witnesses Margaret Kelleher, Pauline Nixon and Dr. Linda Williams constituted evidence of the truth of their contents. 48. Lest there be any doubt about this matter, it is well to refer to authority on the point. It is, of course, perfectly obvious that the staff in an institution like the Forensic Science Laboratory will each handle hundreds, perhaps even thousands of cases in a year. That was, in fact, brought out in the evidence. As the facts of this case demonstrate, no individual can be expected to remember the facts of each individual case he or she has handled. Evidence is given on the basis that the witness sees the record which he or she has created and thus is in a position to refresh his or her memory. It is not the position that the document becomes evidence of its contents. The evidence is given by the witness, with the assistance of the document. Kennedy C.J. addressed the matter as follows in Northern Banking Corporation v Carpenter [1931] I.R. 268 at 276:
It is not necessary that the witness should have any indepedent recollection of the transaction to which the note relates, nor even that the note should literally refresh the memory of the witness or awaken actual recollection. If the witness can say that, from seeing his own writing, he is sure of the fact stated therein, such statement by him is admissible in evidence of the fact…” (citations of authority omitted)
51. Counsel complains that Ms Kelleher maintained that the document was inaccurate in part only. However, the Court is satisfied that this argument is without merit. Insofar as an inaccuracy was established it was only in the respect that a new file was opened in July, which implied that it was a new case, when it was not. Ms Kelleher accepted this and maintained that she believed that the rest of the document was accurate. It is not possible that this single error makes any difference to the chain of evidence. 52. Counsel then secured from Ms Kelleher an admission that she was assuming that the record was right and attaches great importance to that fact. That is, of course, the normal situation as outlined in the legal authorities. Ms Kelleher was entitled to use the documents to refresh her memory. She was constrained to admit that there was an inaccuracy in one respect. It did not follow that there were other inaccuracies. None were demonstrated. Counsel did not suggest any other inaccuracies to Ms Kelleher. The artificiality of the argument is demonstrated by the fact that counsel is in content to make the point at a general level of principle but finds it unnecessary to refer the Court to any of the documents. Put otherwise, the evidence was that given by Ms Kelleher, who used the documents to refresh her memory. The Court accepts the submission of the Director of Public Prosecutions that the Prosecution adduced cogent evidence of each stage of the forensic examinations, and gathering of forensic material for examination by the State Forensic Science Laboratory and that there was no evidence of any break in the chain of evidence for any of the samples used in the gathering of evidence from which DNA profiles were extracted. 53. The applicant has not established any infirmity in the proof of the chain of evidence. It must be stressed that the point being made is by reference to R v Galbraith criteria, i.e., that there was no sufficient evidence to go to the jury. Clearly there was. Both Ms Kelleher and Ms Nixon insisted, in the face of strenuous cross-examination, that they had properly performed their task of receiving, storing and transmitting the important items of evidence consigned to their care. Thereafter, it was a matter for the jury whether to accept or reject the evidence. Complaint regarding the judge’s charge: inferences
58. Counsel complains that the judge exceeded what was permissible by way of comment. His remarks to the effect that it was “far-fetched” to think that the bloodstain could have been on the car beforehand effectively withdrew that issue from the jury. Counsel had requisitioned the learned judge on this and a number of other points but he had declined to re-charge the jury. 59. Whether or not it is prudent to explain the notion of inferences to a jury by reference to the facts of the case is debatable. There can be no fixed rule. It must depend on all the circumstances. The Court does not believe that there is any general rule on the question. Macken J went no further than to suggest that it might “not have been entirely prudent” to use the facts of the case. On the other hand, a judge may consider examples from the case as the easiest and clearest way to bring the point home to a jury. When he does so, the judge must take care to remind the jury that the facts are for them. 60. The real issue here is whether the judge went too far in suggesting that a particular possibility canvassed by the defence was “far-fetched.” Firstly, it must be remembered that the learned judge did, in accordance with normal requirements, explain to the jury the respective roles of judge and jury. He instructed them that they were the judges of the facts. He told them that what he and counsel had said was not evidence and that they were entitled to agree or disagree. They could take on board anything he was “commenting on or ignore it as you choose and go your own sweet way.” 61. Secondly, the Court is satisfied that, having regard to all the evidence, it was indeed “far-fetched” to think that the bloodstain could have been on the car beforehand. This evidence has already been reviewed. 62. It is, nonetheless, fair to say that it is unusual and unwise for a trial judge to express views so clearly and so strongly on an issue of fact without, at the least, reiterating that it was a matter for the jury to decide. This is not to say that a judge is not entitled to comment on the evidence. In delivering the judgment of this Court in DPP v Brian Rattigan [2013] IECCA 13, on 19th February, O’Donnell J repeated that:
64. However, the jury will for the most part be unfamiliar with court procedures. The whole notion of evidence and how to use it may be foreign to them. It is helpful if the judge explains the evidence in context. In doing so, he should tell the jury how to use a particular piece of evidence to prove one of the items in issue. It may be difficult, in a fair charge, for a judge to remain entirely neutral. A point may be perfectly obvious or may not be in issue. The judge should explain the difference between agreed facts and facts in contention. It will not assist if he appears to attribute the same value to strong and clear evidence as to weak or ambiguous evidence. A trial judge should, while respecting both the obligation of fairness and emphasizing the fact-finding function of the jury, provide some guidance on how they are to handle questions of fact. To quote once more from the judgment of this Court delivered by O’Donnell J in DPP v Rattigan:
Complaint regarding the judge’s charge: comments on evidence of blood
68. This passage is again, however, concerned with the bloodstain on the boot lid. The judge pointed out that there was no evidence as to how it got there. However, he referred to the inferences the jury could draw. He repeatedly phrased his remarks conditionally, notably: “how he spilt that blood if he did. The fact is it was there, if you accept that.” 69. He drew attention to the entire gamut of the possibilities which had been raised by the defence in the passage commencing: “So, of course….” The inescapable fact was that there was, as already stated, overwhelming evidence of the presence of blood on the boot lid. Most compellingly, Mr Kilmartin swore that, when he had been released by the gardaí, he went to the rear door of the house, saw that his BMW car had been reversed up to the door and “noticed for the first time…a red stain on the left-hand side of the boot lid.” This evidence was never challenged or questioned in any way by the defence. It means that it was utterly unreal to suggest not only that Mr Kilmartin’s evidence did not establish that he saw the blood at that time for the first time but that the evidence left over the possibility that this blood had got on to the boot lid at some other earlier unidentified time and in an unexplained manner. Such a possibility was not put to any of the witnesses. 70. Given that context, the Court is satisfied that the charge of the learned trial judge was not unfair to the defence. Other complaints concerning the charge
72. This case depended entirely on the link to the applicant established by the scientific analysis of the blood found on the car and the hair sample taken from the applicant. On the one hand, any failure to carry the two materials which were analysed through the chain of evidence to the point when they were forensically analysed by Dr Williams would have been fatal to the prosecution. On the other, the effect of properly proved DNA evidence is devastating. The defence made no attempt to contest it. The attack was entirely on the reliability of the provenance of the two materials. The Court has considered all the grounds of appeal and is satisfied that none of them is made out. It dismisses the application for leave to appeal. It will consider that application for leave to appeal against sentence at a later date. | ||||||||||||