The People at the Suit of the Director of Public Prosecutions
Patrick O’Brien and Thomas Stewart
Judgment of the Court delivered 21st of December 2015 by Mr. Justice Edwards
1. This is a case in which the appellants, who were tried jointly as co-accused, were each convicted of the double murders of Desmond Kelly and Breda Waters on the 9th January, 2011, at 531 O’Malley Park, in Limerick, by unanimous verdicts of a jury on the 26th October, 2012 following a fourteen day trial before the Central Criminal Court.
2. Following their convictions, the appellants were each sentenced to two mandatory sentences of imprisonment for life, to run concurrently and to date from the 10th January 2011.
3. Both appellants now appeal against their convictions for murder.
The general circumstances of the case and evidence in controversy.
4. Just before 9 am. on Sunday, 9th January, 2011, two men whom the prosecution maintain were acting in concert, one of whom was armed with a sawn off shotgun, entered a dwellinghouse at 531 O’Malley Park, Limerick City, the home of Desmond Kelly and his family.
5. Desmond Kelly was present in the house at the time, as was his sister Theresa Kelly, his 5 month old baby daughter Lily Rose, and a Breda Waters who was a friend of Desmond Kelly. While the two men were present in the house there were two shootings. Mr. Kelly was shot in the head while in the kitchen and Breda Waters was shot in the neck while she was in an upstairs bedroom. The injuries sustained by both victims proved fatal. Following the shootings the assailants, whom the respondent contends were the appellants, then left the house.
6. At the appellants’ trial before the Central Criminal Court the respondent called evidence from Theresa Kelly, who stated that at the time of the shooting she had known Pa O’Brien, the first named appellant, for approximately four and a half years. She had in fact been engaged to Mr O’Brien’s brother in law, Jonathan Cremins, until he had died in tragic circumstances. She testified that on the 8th of January, 2011, the evening before the shootings, she was present in the house at 531 O’Malley Park when the first named appellant and his wife, Susan, called at about 8pm. Desmond Kelly, his partner Olivia Mullins and their three children were also there. At a certain point later in the evening Susan O’Brien showed the adults present a text message on her phone. The text message said “I hope you get riddled with cancer, die bitch die” and “He’ll be mine”. After this Pa O’Brien asked Desmond Kelly if he would he slash Tina Waters’s face. Theresa Kelly also gave evidence that later, as Pa O’Brien was leaving, he addressed a further remark to Desmond Kelly, stating “I’ll return the favour”.
7. The jury heard that everyone eventually left the house except for Desmond Kelly, Theresa Kelly, the baby Lily Rose, and Olivia Mullins. Ms Mullins was due to sleep elsewhere that night, as indeed were the older two of her three children who were amongst those who had left 531 O’Malley Park earlier. It had been prearranged that Theresa Kelly would babysit overnight at 531 O’Malley Park in the absence of the baby’s mother. Ms Kelly recalled that at a later stage of the evening Matthew Quinn, who was a friend of Desmond Kelly’s, called to the house at 531 O’Malley Park, and that, later still, two sisters Martina (otherwise Tina) Waters and Breda Waters also called. Theresa Kelly testified that there was drinking and music and a bit of a party. She further stated that after a while, in or about midnight, she went upstairs with the baby and retired to bed, sleeping in the same bedroom as the baby.
8. Ms Kelly’s evidence was that on the following morning at about 9 o’clock she heard a knock at the door followed by someone speaking for about 50 seconds and then a bang. These sounds came from downstairs. Ms Kelly did not leave her room. The next thing she heard was two people coming up the stairs. She stated that she knew there were two people because she could hear them whispering to each other. The next thing she heard was “Pa O’Brien asking Breda Waters ‘where’s Tina and the other fella?’ ”, to which “Breda said ‘I swear to god that they’re up in, they’re up in their uncle’s house.’ ” She testified that the question was put again, and Breda Waters swore, and then said “They’re up in the other, in Matthew’s uncle’s house. The only one that’s here next door is Theresa and the baby.” Ms Kelly stated that she then heard a noise “like if somebody hit a stick off my mother’s door, like, and then I heard Pa O'Brien putting on a traveller's accent saying, ‘John Boy Reilly, John Boy Reilly, check her for a phone, check her for a phone.’ ” She stated that then there was silence, that the persons concerned went away and that she had thought that Dessie went with them. She stated that they had walked down the stairs, that they did not run, and so she just fell back to sleep.
9. Ms Kelly stated that she awoke again about an hour later when the baby was crying and she went to make her a bottle. She left the bedroom and looked into the adjacent bedroom where she saw Breda Waters “with her legs on the ground and thrown back”. She thought at that point that Breda Waters was merely asleep, having fallen asleep in that position in a drunken state. She then went downstairs and into the sitting room and saw her brother on the ground. She initially thought he was similarly asleep but then observed injuries to his head and significant quantities of blood. She then ran up to look at Breda Waters again and this time observed that she had injuries to her neck. Thinking her brother might be still alive she then ran to get assistance from her neighbour.
10. Under cross-examination Ms Kelly denied that she was prepared to tell lies about the first named appellant. Both in a statement to the Gardai, and in her evidence in chief, Ms Kelly had stated that it had been the knock at the door that had woken her on the morning of the shootings. However, when cross-examined about this she changed her account somewhat and contended that she had in fact woken just before that, had given the baby half a bottle and was going back to sleep when she heard the knock at the door followed by the other noises. She also stated under cross examination that when she went to bed on the previous evening the others in the house had been intoxicated whereas she was not intoxicated. She acknowledged, however, that she consumed “four small bottles” and had taken two lines of heroin before retiring. She was adamant that she had not recognised either of the bangs that she heard as shotgun blasts, even though she was familiar with the noise of a shotgun.
11. The respondent’s case was that the two appellants got a lift to the Southill area of Limerick city from 27, The Cedars, Briarfield, Castletroy Limerick on the morning of the shootings from an Ian O’Leary, and that Patrick Stewart Junior, a brother of the second named appellant, was another passenger on that journey. The case was that en route to Southill, the appellants collected a shotgun and cartridges from an address at 22 Walnut Court, Kennedy Park, Limerick where the second named appellant had stored these items for a period of 4-5 months. The occupants of that address included Thomas and Andrew Donnellan. Thomas Donnellan gave evidence that the second named appellant collected these items from beside a dresser in an upstairs bedroom while the first named appellant waited at the hall door and that the second named appellant left the address with the barrel of the shotgun secreted in his jacket sleeve. Andrew Donnellan gave evidence of being in bed at 22 Walnut Court, Kennedy Park on the morning in question when the second named appellant passed by his bedroom door following which he heard noises coming from the adjacent bedroom that sounded like “rubbish falling”.
12. Ian O’Leary gave evidence that on the morning of the shooting he called to the Stewarts’ house at 27 The Cedars because he, and Patrick Stewart, junior, were intending to go fishing. He had driven to that address in a Volkswagon Bora motor car. The appellants were both present when he called. He stated that he was asked to give the appellants a lift to Patrick O’Brien’s father’s house and agreed to do so. He understood Mr O’Brien, senior, to live in the vicinity of the Fedamore Road (which runs south from the Roxboro roundabout past Southhill). All four then got in to the Volkswagon Bora which then proceeded from The Cedars in the direction of Roxboro. However upon reaching the Roxboro roundabout Ian O’Leary, who was driving, made a detour on the instructions of the first named appellant, taking the right hand (northern) exit rather than the left hand (southern) exit from the roundabout, proceeding past Roxboro Garda Station, and then turning right into Kennedy Park where he pulled up outside 22 Walnut Court.
13. Ian O’Leary told the jury that the appellants, and Patrick Stewart, Junior, then got out of the vehicle and went into 22 Walnut Court, while he remained in the vehicle. Ian O’Leary stated that he then drove down to the end of the road, turned around, came back and parked again outside 22 Walnut Court this time facing in the other direction. Patrick Stewart, junior, was outside the door of 22 Walnut Court at this point and got back into the front passenger seat of the Volkswagon Bora. The two appellants then emerged from the house a few minutes later and they got into the back of the vehicle. Ian O’Leary then drove out of Kennedy Park and proceeded south along Roxboro Road, past Roxboro Garda Station once again, and drove through the Roxboro Roundabout taking the southern exit. He then asked the first named appellant where his father’s house was and he was told to drive into O’Malley Park in Southill. However, he refused to do so. Instead, Ian O’Leary drove past the entrance to O’Malley Park and stopped about 50 yards beyond it. After some argument, during which Ian O’Leary was adamant that he would not drive the appellants into O’Malley Park, the appellants got out of the car.
14. Ian O’Leary testified that at this point:
“A. …when they got out of the car, I looked behind me and saw a barrel of a gun in Patrick O'Brien's jacket.
Q. And can you just describe to us where -- where it was?
A. It was on the left-hand side just hanging down below the jacket.
Q. And how far down did it come?
A. It was coming just over the knee.
Q. And when you say, "Barrel of a gun", did you see what type of a gun it was?
A. It looked like a it looked like a barrel of a shotgun.
Q. Of a shotgun. But it only came down to his knee?
Q. So you didn't see a full long barrel?
15. Mr O’Leary stated that the last time he saw the appellants was when they were walking down the walkway into O’Malley Park just after he had let them off.
16. Mr O’Leary later agreed, under cross-examination, that what he saw when the appellants got out of the car “could have been a bar”.
17. Patrick Stewart, junior, was also called as a prosecution witness. He was asked, inter alia, about the journey from 22 Walnut Ct, Kennedy Park to the point where the appellants got out of the Volkswagon Bora and gave the following evidence:
“Q. Well, was it far past the roundabout, the Roxboro roundabout that you dropped them off?
A. I said a few minutes ago, a hundred yards.
Q. A hundred yards, right. Well, on the way up to there, did you look into the back seat?
A. Not really, no.
Q. I just want you to think about that, did you look into the back seat, do you recall?
A. I didn't look into the seats, no.
Q. Did you look into the back of the car?
Q. Did you glance back at all?
A. A small bit, not much, no.
Q. All right, the small bit that you did, can you tell us what you saw?
A. Two people sitting in the back.
Q. Anything else?
Q. Did you hear any conversation in the back seat?
Q. Was there any activity going on in the back seat?
A. Like what, funny business, just the two lads were in the back.
A. Sure what activity would be going on inside in the back of the car.”
18. This testimony was inconsistent with, and materially different to, accounts given by the witness in the course of being interviewed on a number of occasions by members of An Garda Siochána. The prosecution applied in the circumstances for leave to utilise s. 16 of the Criminal Justice Act 2006 (hereinafter the Act of 2006) and to have Patrick Stewart, junior’s, statements to the Gardaí admitted as evidence of the facts mentioned therein. That application was ultimately successful. In the course of a voir dire on the s.16 issue the relevant material was put to Patrick Stewart, junior, who, save for some minor details, did not dispute that he had indeed given the Gardaí those accounts.
19. The accounts given by Patrick Stewart, junior, to the Gardaí, and which were placed before the jury pursuant to s. 16 of the Act of 2006, comprised a lengthy statement taken from him at Newcastle West Garda Station on the 15th of January 2011, and shorter supplementary statement taken from him at 21 Greenhills, Garryowen, Limerick on the 16th of January 2011.
20. The statement of the 15th of January 2011 contained the following passages (inter alia):
“I live at 27 The Cedars, Briarfield, Castletroy, Limerick. I live there with my mother and father, Veronica and Patrick. My brother Thomas and sister Veronica live there as well.”
“Me and Ian had arranged to go fishing that morning. We'd arranged this earlier in the week. Me and Ian go fishing nearly every Sunday. I rang Ian to tell him I was up and I was ready to go. I rang him a second time. I'd say it was around eight, and Ian said he was outside the door. Ian came into the kitchen. Ian had tea in the house I think when he came in. At that stage, Thomas and Pa O'Brien asked Ian for a lift. They said they wanted to go up by Roxboro. They didn't say why they were going up that way.”
“ The four of us weren't long in the kitchen. We got up to get into the car. This was around eight or after eight. We got into Ian's car. It's a blue Volkswagen Bora. We got into the car. I sat into the front passenger seat. Pa O'Brien was behind me, and Thomas behind Ian. I saw Thomas had knife and I said to Ian to give them no fucking lift until he hands over the knife. Thomas handed over the knife. It was a small black handled knife that's used for peeling potatoes. It was one of the ones that was shown to me earlier today. I took the knife off of Thomas and I put it into the glove compartment of the car. I asked Thomas what he was doing with that. He just said he was carrying it. The back of the car was facing out. Ian went out of Briarfield to face Superquinn. He turned left towards the Kilmurry roundabout. He took the first left with the AIB bank on the left-hand side. We continued on in the Dublin Road and came to a roundabout where Groody is to the left and the university is to the right. We went straight on at that roundabout. Singland Motors is on the left-hand side. We turned left at the slip road just 20 metres before the Parkway roundabout. We came on to Childers Road, continued straight down the Childers Road with the Dunnes Stores and the halting site on the left-hand side. We came to the Tipperary roundabout and went straight through that. We came to the Kilmallock roundabout, went straight through that up to the Roxboro roundabout. We took the third exit on that, which brought us on to Roxboro Road, passed out Roxboro garda station on our right, turned right at Lady Queen of Peace Credit Union. Went down that road a little bit and there is a right turn. I think it's the first right. We went down a dreary road. There is a wall on the right-hand side, a big wall. There is houses on the left-hand side. I'm 100% that between the Kilmallock roundabout and the Roxboro roundabout that Pa O'Brien made a phone call on his phone. He said something like, 'Two minutes'. When we got to the Roxboro roundabout, Pa O'Brien started telling Ian where to go. When we got on to that dreary road we went down an avenue. There was a kind of bend on the road. We stopped at a house; it's the last house on the left-hand side. I've pointed out the house to you already. Pa O'Brien told Ian where to stop. We didn't stop right outside the gate; we pulled a few feet down. Thomas and Pa O'Brien got out of the car. I seen them walking in towards the doorway of the house. A lad with black hair in his 30s answered the door. When we got out they said they would be two minutes. The man that answered the door I've never seen before. The house has a white door. I think that house is blue-ish grey-ish. The boys were gone a minute or two. I got out of the car and I went in towards the house. I went in the front gate and I was halfway between the front gate and the door when I called Thomas to come on. The door was open. The stairs of the house were dark. I don't know if it was dark or had carpet. The three of them came down the stairs. The fellow who was in the house was at the door. He had longish kind of hair, it wasn't tight. I can't remember what he was wearing. When I saw them coming, I went back into Ian's car. Patrick O'Brien sat in behind me. Thomas sat behind Ian. Ian turned the car in the gateway on the right-hand side; you can turn left there if you want. Patrick O'Brien said he wanted to go into Southill. Ian said he wouldn't drive into Southill. We drove up by Queen of Peace and turned left past the garda station on the left-hand side, down to the roundabout and straight through heading for the Galvone. We went past the Galvone pub that's closed. Past the left turn for Southill and there's a shop on the corner. We pasted the shop and there's a place where you can pull in. We pulled in there on the left just before the zebra crossing; it's where I showed Garda O'Sullivan already. On the way up in the car, I kind of looked back into the back seat. I saw an inch or two of what looked like a bar. It was more than that; it was four or five inches. It was pointed down, sticking out of Pa O'Brien's jacket. It was at an angle. It was between 7 and 9 o'clock angle. When Pa first came out of the house, he had his hand tucked up into his jacket as if he was holding something. I didn't see anything at this stage. The gun was pointing out towards the ground in the middle of the car between him and Thomas or towards Thomas's feet. After Thomas and Pa O'Brien came out of The Cedars and on the way to the house they were mumbling between each other and whispering low. After they came out of the house near the match box houses they were quiet. Patrick O'Brien said he thought he dropped a cartridge in the car. It clicked with me then that it was a gun that Pa had. Ian said to this them, 'I hope you're not up to anything in my car.' They said they weren't up to anything. Thomas and Patrick started looking around in the back seat for the cartridge. I don't think they picked anything up. When we pulled up in Southill I asked them what they were doing. They replied to me and said they weren't doing anything. They got out of the car using their own doors. They got on the footpath at my left. Pa O'Brien was wearing a navy pants, a tracksuit pants. I think he had dark trainers on. He'd a black jacket with blackish fur on the inside of it. I think Pa has a limp since he broke his leg sometime back. I think he had a dark monkey hat on. It was tight on his head and I can't remember if there was writing on it. Thomas was wearing the same clothes as he had on the night before. Thomas had no injuries on his hands. I'm 110% sure. When they were on the footpath to our left Ian did a U-turn. We headed straight home. I don't know which way they went after I left. Me and Ian took the main road home, the same way we had come. We got back to my house and went in home. First we searched the back of the car for the cartridge, but we didn't find anything. I got the knife from the glove compartment and I brought it back into the house. I put it into the knife drawer, which is in the kitchen on the left-hand side after the fridge; it's the top drawer. My mother was up. My father told us to go off fishing.”
21. While the making of the statement of the 15th of January 2011 at Newcastle West Garda Station was not recorded on video tape, the reading over of that statement to the witness, and his acknowledgment of it and acceptance that it was correct was so recorded.
22. The supplementary statement of the 16th of January 2011 was in the following terms:
“I hereby declare that this statement is true to the best of my knowledge and belief and that I make it knowing that if it is tendered in evidence I will be liable to prosecution if I state in it anything which I know to be false or do not believe to be true. In addition to my statements already made by me today and yesterday, the clothes that Thomas was wearing going to the party in Janesboro are the same clothes as he was wearing when I left him and Pa O'Brien off at the Galvone. When Pa O'Brien came out of the house after collecting the gun, he had it under his top. The gun couldn't have been full length. When I saw it in the back of the car, I knew it was cut down. I don't know how many barrels were in the gun, I could only see one. This statement has been read over to me by Detective Garda David Burke and is correct.”
23. Having accepted in the course of the voir dire that he had given these accounts to the Gardaí, Patrick Stewart, junior, maintained that they were incorrect in so far as they mentioned him having seen a gun, and also in so far as he had suggested that there had been mention in the car about a cartridge being dropped and subsequently searched for. He contended that he had misheard a reference to “cartilage” as “cartridge” and that afterwards it had clicked with him “that Patrick O'Brien had hurted his leg, he'd broke his leg before and I think there was a cartridge, I thought it clicked with me that there was a cartridge in his knee he was on about, over the damage in his leg”.
24. After s.16 of the Act of 2006 was utilised, and the statements at issue had been read to the jury, Patrick Stewart, junior, gave further evidence before the jury. Under cross-examination by counsel for the first named appellant he maintained that his memory had been affected by consumption of alcohol and that certain things in his statements to the Gardaí were wrong. In particular, he stated that what he saw in the back of the car was a bar (not a shotgun) and that he was wrong in his statements in suggesting it was a gun. He also disavowed the account he had given of the conversation in the car. However, he made no mention before the jury of having misheard “cartilage” as “cartridge”. He further contended that at the time when he was interviewed in Newcastle West on the 15th of January 2011 and made the statement that the prosecution had read to the jury, he had felt under pressure for two reasons. This was, firstly, because he had just been released from five days of detention on suspicion of being an accessory to murder and, secondly, because his mother had been taken to hospital and his girlfriend was in the late stages of pregnancy and he was worried about both of them.
25. The respondent’s case also included CCTV footage, said to show movements of two persons on the morning in question including their entry into 531 O’Malley Park. This was said to be consistent with the other evidence in the case and the respondent’s case was that it could be inferred these two persons were the appellants.
26. Finally, the respondent’s case included Ballistics evidence from Detective Garda Jeanette O’Neill to the effect that a person using a sawn off shotgun could suffer an injury to the web of the right hand between the thumb and index finger. The jury had previously heard evidence from the second named appellant’s mother Veronica Stewart that, when she saw him shortly after the murders, he had an injury covered by a plaster “between his thumb and his finger” of his right hand. Veronica Stewart had sought to characterise this cut, which she claimed to have seen when the plaster fell off at one point, as “a paper cut”.
Grounds of Appeal on behalf of the first named appellant:
27. The first named appellant seeks to appeal his conviction on the following grounds:
1. The trial judge erred in law in admitting into evidence the voice recognition evidence offered by Theresa Kelly.
2. The trial judge erred in law in admitting the statement of Patrick Stewart pursuant to s.16 of the Act of 2006.
3. the trial judge erred in law in permitting the prosecution to call evidence that CCTV footage viewing 531 O’Malley Park, Limerick showed two persons exiting from 531 O’Malley on the morning of the 9th of January 2011 when it was a matter of fact for the jury to determine as to how many people exited from the said house at that time.
Grounds of Appeal on behalf of the second named appellant:
28. The second named appellant seeks to appeal his conviction on the following grounds:
1. The trial judge erred in law in ruling that Detective Sergeant Thompson and/or Garda Nick Jones could state in evidence that two persons are visible on CCTV Exhibit JD4 entering 531 O'Malley Park at a certain date and time and that one person is visible on CCTV Exhibit JD4 exiting 531 O'Malley Park at a certain time on the 9th January 2011.
2. The trial judge erred in law in ruling that the opinion in evidence of Detective Garda Janette O'Neill to the effect that one can sustain an injury to the web of the hand between the thumb and index finger when discharging a sawn-off shotgun, when such opinion was prompted when the witness was shown photographs of such an injury on the right hand of the accused (the second named appellant) which was part of the fruits of an illegal search and detention on foot of a warrant obtain pursuant to Section 29 of the Offences against the State Act 1939 as amended.
3. The trial judge erred in law in allowing the prosecution to adduce evidence from Detective Garda Jeanette O'Neill that a person using a sawn off shot gun could suffer an injury to the web of the right hand between the thumb and index finger, where the prejudicial value of this evidence far out-weighted any probative value it might have.
The Voice Recognition Evidence
29. Counsel for the first named appellant applied unsuccessfully to the trial judge to have the voice recognition evidence of Theresa Kelly ruled inadmissible, contending that, having regard to well recognised infirmities associated with identification evidence in general, and voice identification or voice recognition evidence in particular; coupled with further specific infirmities in the proposed evidence arising in the circumstances of this particular case; it would be unsafe to allow the jury to consider it. This submission was advanced on the basis that the proposed evidence created an appreciable risk of a miscarriage of justice and that the objection was therefore one going to admissibility rather than to weight. It was further submitted that a Casey / Turnbull type warning, even if adapted to the context of voice recognition, would not be sufficient in the circumstances of the case.
30. In support of his objection, which he now re-iterates, counsel pointed to the following circumstances in the present case. When Ms. Kelly made her initial statement to An Garda Siochána, she made no reference to Patrick O'Brien being present in the house. Thereafter, having been arrested and detained for a number of days, interviewed on tape and released at the end of that detention, she then made a further statement in which she claimed that she had not told the whole truth in her original statement but that she had been telling the truth during the course of being interviewed while detained. In this further statement, Ms Kelly states that she heard voices at the time of the killing and recognised one of those voices as being that of Patrick O'Brien. Counsel for the appellant laid emphasis on the fact that during Ms. Kelly's earlier questioning while being detained, she had indicated through a variety of phrases that she wasn't 100% sure that it was the appellant’s voice that she had heard but that she thought it was him. However, her second statement, made after her release from detention, contains no equivocation as to the voice identification.
31. Counsel also pointed out that in this case:
(i) the witness was hearing a conversation through a door or wall from a room next door where she said the person was speaking as if impersonating a traveller's voice;
(ii) the witness had been drinking alcohol and smoking heroin the night before the killings.
32. Counsel for the first named appellant submitted, as he again submits to this Court, that the witness should have been required to submit to a formal audio identification procedure, akin to the more usual visual identification procedure, such as (to quote counsel) "playing recordings of Mr. O'Brien's voice to her in comparison to other voices to see, whether, in fact, she could ... recognise his voice".
33. The application was opposed by counsel for the respondent on the basis that the proposed evidence would be of “recognition” rather than “identification”, and that that was an important difference. It was submitted that the defence would have an opportunity to explore all of the issues surrounding the circumstances in which the witness made her second statement in cross-examination. Moreover, it would be utterly impossible to construct a suitable audio identification procedure in circumstances where it was said the speaker was attempting to disguise his voice by putting on a traveller’s accent. Counsel submitted that the issue could safely be left to the jury, with appropriate warnings, and that it would then be matter for the jury to determine what weight, if any, to attach to that evidence.
34. The trial judge refused the application stating:
“Well, as I understand the argument that is made, it is that the evidence in relation to the voice, which it's anticipated will be given by the witness, is so frail that it ought not to be admitted. That such are the frailties that it would be unfair to admit it. And I suppose, the analogy is with a very poor quality visual identification. Where it's said that the quality of the exercise is so poor that really it has little or no probative value. And that but that the very fact that it happens at all means that it is prejudicial. And so it's said that the probative value is exceeded by the prejudicial effect. Well, from first principles it seems to me that if somebody wants to report a conversation that they say they heard, that they are entitled to say that they were aware of the speaker because they were able to identify or recognise them. For the moment I'm using those words interchangeably, the voice of the speaker. Now, in this instance it's said that there is a particular frailty attached for a number of reasons. First of all, the individual involved was apparently seeking to disguise his voice. And secondly, it's said that the witness on a number of occasions expressed equivocation in relation to their capacity to recognise or identify with confidence. However, the statement itself indicates that from an early stage that the witness was telling a number of people that she, in fact, knew the identity of the person that she had heard speaking at the crime scene. And there's a reference to a number of civilians to whom she is supposed to have spoken. It's suggested that she also at a very early stage spoke to members of the gardaí. In those circumstances it seems to me that the fact that there were occasions when she is recorded as expressing equivocations is a matter that really goes to weight and is a matter that can, if the defence wishes, be explored. But fundamentally if somebody knows an individual, knows that individual well, and then hears a conversation and is in a position to say that they recognised the person that they heard speaking. It seems to me that the starting point is that that is prima facie admissible. And I don't believe that the apparent, alleged frailties that have been identified, either in terms of the fact that equivocations are on record or the fact the witness involved had been drinking and taking drugs or probably taking drugs as well alters that. It seems to me that they are matters that essentially go to the question of weight, and that I would not be justified in denying the jury an opportunity to hear the evidence and make their own assessment of it. It seems to me that if the jury do hear it, that it will in due course be necessary to give a modified Casey warning, and I would propose to do that. But I don't believe that the evidence is by reason of the either the surrounding circumstances in terms of Ms Kelly's situation on the morning in question. Or what she had to say subsequently during her period of detention. I don't think that those factors or a combination of them render the evidence inadmissible and I propose to admit the evidence.
35. Counsel for the first named appellant has submitted to this Court that the trial judge was incorrect in his ruling, and that the evidence of Theresa Kelly was wrongly admitted. In support of his argument counsel has opened, or referred to various Irish authorities, and certain English jurisprudence which it was urged should be of strong persuasive influence. The principal Irish authorities referred to comprise The People (Attorney General) v Casey (No 2)  I.R. 33; The People (Director of Public Prosecutions) v. O’Reilly  2 I.R. 415, and the recent judgment of this Court in The People (Director of Public Prosecutions) v Crowe  IECA 9 (unreported, Court of Appeal, 3rd February 2015). The English jurisprudence relied upon for its persuasive influence consisted of R v Turnbull  63 Cr App R 132; R v Hersey Crim LR 281; R v Gummerson and Steadman  Crim L.R. 680; R v Roberts  Crim L.R. 183 and the conjoined cases of R v Flynn and R v St John 2 Cr App R 20. In addition, the Court was asked to have regard to the guidance contained in the United Kingdom Home Office Circular 057 / 2003 on the use of voice identification procedures including voice identification parades.
36. The case advanced on behalf of the first named appellant with respect to the admission of the evidence of Theresa Kelly is essentially this.
37. Identification evidence has long been recognised as problematic and as having the potential to be unreliable and to give rise to miscarriages of justice. The decisions of the Irish Supreme Court in The People (Attorney General) v Casey (No 2), and of the English Court of Appeal in R v Turnbull are relied upon as establishing a general concern in that regard, which this Court readily accepts notwithstanding that the facts of both of these cases were specifically concerned with visual identification evidence.
38. It was submitted that sometimes, but not always, the infirmities associated with identification evidence, and the risks attendant upon its admission, can be ameliorated or sufficiently managed by the adoption of safeguards in the process of gathering the evidence where that is possible, or by appropriate warnings given to the jury at trial, or a combination of both. Both Casey No 2, and Turnbull, respectively advocated the giving of a suitable warning by the trial judge to any jury concerned with weighing and assessing visual identification evidence.
39. In addition the case of The People (Director of Public Prosecutions) v. O’Reilly is relied upon as establishing in this jurisdiction that visual identifications should, where possible, and as a matter of best practice, be conducted in controlled circumstances, such as in the context of a formal identification parade, as a safeguard to intended to reduce errors and ensure fairness. Such procedures allow for a forensic testing at trial of the circumstances of the visual identification including both the opportunity for observation and the fairness of the attendant circumstances. The Court of Criminal Appeal stated in the O’Reilly case that while there was no rule of law or practice that required visual identification of a person to be proved by means of a formal identification parade the circumstances of a case might require the holding of an identification parade, and the circumstances of that particular case had indeed required one.
40. Then, earlier this year, this Court gave judgment in the case of The People (Director of Public Prosecutions) v Crowe where the issue concerned the admissibility of voice identification evidence. This was the first time an Irish court at appellate level had in a reserved judgment addressed the admissibility of either voice identification evidence or voice recognition evidence at the level of principle. However, before referring more specifically to the judgment in The People (Director of Public Prosecutions) v Crowe it may be helpful to first of all consider the jurisprudence from our neighbouring jurisdiction of England and Wales upon which the first named appellant also places reliance.
41. In the cases of R v Hersey, and R v Gummerson and Steadman, the Court of Appeal (Criminal Division) in England held that in cases of identification by voice, the judge should direct the jury by the careful application of a suitably adapted Turnbull direction. In R v Roberts the Court of Appeal (Criminal Division) referred to academic research indicating that voice identification was more difficult than visual identification, and concluding that the warning given to jurors should be even more stringent than that given in relation to visual identification.
42. Although neither side specifically referred to it in submissions, the approach in Roberts was echoed in the Northern Ireland case of R v O’Doherty  NI 263,  1 Cr.App.R.5. Giving judgment in the Court of Appeal Nicholson LJ emphasised the need for a suitable warning to the jury in cases where evidence was given purporting to be identification of the voice of the defendant. He stated:
“We are satisfied that if the jury is entitled to engage in this exercise in identification on which expert evidence is admissible, as we have held, there should be a specific warning given to the jurors of the dangers of relying on their own untrained ears, when they do not have the training or equipment of an auditory phonetician or the training or equipment of an acoustic phonetician, in conditions which may be far from ideal, in circumstances in which they are asked to compare the voice of one person, the defendant, with the voice on tape, in conditions in which they may have been listening to the defendant giving his evidence and concentrating on what he was saying, not comparing it with the voice on the tape at that time and in circumstances in which they may have a subconscious bias because the defendant is in the dock. We do not seek to lay down precise guidelines as to the appropriate warning. Each case will be governed by its own set of circumstances. But the authorities to which we have referred emphasise the need to give a specific warning to the jurors themselves.”
43. In the cases R v Flynn and R v St John, reviewed in some detail in this Court’s judgment in The People (Director of Public Prosecutions) v Crowe, the English Court of Appeal (Criminal Division) referred to expert evidence it had received concerning particular difficulties associated with the challenging of what it characterised as “lay listener” or non expert voice recognition evidence. The disputed “lay listener” evidence in R v. Flynn and R v St John was the evidence of four police officers who purported to recognise the voice of each appellant taken from recordings of conversations covertly obtained from a hidden microphone in a van. The evidence of the police officers was that, having spoken to the two appellants during and after their arrest, they were able to recognise their voices on the recording captured by the covert recording device. The officers had also obtained covertly a sample of each of the appellants' voices in conversations at the police station. At trial, counsel on behalf of both appellants objected to the introduction of the voice recognition evidence. The trial judge ruled the evidence admissible. However, the Court of Appeal (Criminal Division) concluded that he had been wrong to do so in the circumstances of that case.
44. In its judgment the Court of Appeal (Criminal Division) accepted that voice recognition was less reliable than visual identification, and that lay listener identification, which relies on the familiarity of the witness with the person whose voice he or she purports to identify, is less reliable than evidence from experts using acoustic, spectrographic and sophisticated auditory techniques. The ability of a lay listener to identify a voice is subject to a number of variables, including the quality of the recording (where the voice is recorded), the gap in time between hearing the known voice and the disputed voice, the listener’s ability generally to recognise voices, the nature and duration of the speech to be identified and the familiarity of the listener with the known voice. The research showed that even confident identification of a known voice by a lay listener may be wrong. The Court of Appeal (Criminal Division) made it clear that its judgment should not be read as casting doubt on the admissibility of true expert evidence in this area. However, the key to admissibility of lay listener identification was the degree of familiarity with the expert’s voice. The court considered that lay listener evidence from police officers should be treated with caution and that where the prosecution proposed to rely on such evidence an expert report should be obtained giving an opinion on the validity of the evidence. Furthermore, as a procedural safeguard, the police officers concerned should record the procedures which formed the basis of their evidence. They had not done so in the Flynn and St John cases. The court made it clear that whether such evidence should be admitted in any particular case must depend on the facts of the particular case.
45. Following a consideration of the circumstances surrounding the purported voice recognition by the police officers concerned in the cases of Flynn and St John, Gage LJ., giving judgment for the court, stated:
“51. … We have already noted the two most important factors, namely the limited opportunity for the officers to acquire familiarity with the appellants' voices and secondly, the poor quality of the covert recording. To these we add the following. First, the police officers' purported recognition of the appellants' voices is in marked contrast to the evidence of the two experts who are unable to recognise their voices; in Dr Holmes' case she was unable to identify individual voices. Secondly, nothing is known of the ability of any of the police officers to recognise voices. There is no evidence that any of them had any training in auditory analysis. Thirdly, the identification of the voices was carried out by listening to the covert tape on a standard laptop computer, as opposed to the sophisticated equipment used by the experts. Fourthly, in our judgment, it is significant that DC Gittings' transcript contains words attributed to Flynn which Dr Holmes could not distinguish as words, let alone recognise as attributable to Flynn. Fifthly, the expert evidence shows that lay listeners with considerable familiarity of a voice and listening to a clear recording, can still make mistakes.
52. Taking all these factors into account we conclude that there are powerful factors militating against the admission of the evidence of the police officers in the case of each of the appellants. Such evidence was self-evidently very prejudicial. As the experts point out, there are difficulties in challenging the evidence of lay listeners for the reasons noted earlier in this judgment. In our judgment, the general uncertainties about the evidence of voice recognition by lay listeners are enhanced by the specific facts in the case of each of these appellants. Quite simply, in our opinion, the prejudicial effect of this evidence far outweighed its probative value. Accordingly we conclude that the judge was wrong to rule it admissible.”
46. Returning then to this Court’s judgment in The People (Director of Public Prosecutions) v Crowe, the circumstances of that case concerned a menacing telephone call made to a member of An Garda Siochána. The call was in early course traced back to a particular mobile phone and a principal suspect was rapidly identified. This suspect was then arrested and detained at a Garda station for questioning, and during that detention the interviews with him were video and audio recorded. Subsequently a 15 second segment of the recording of one of the interviews with the suspect was played to the Garda who had received the call, whereupon he purported to identify the voice in the recording as being the same voice that he had heard on the telephone. He made this identification in circumstances where he was aware that the recording he was listening to was a recording of the voice of the person his colleagues regarded as being the principal suspect in the case.
47. At the trial of the suspect for the offence of sending a menacing message the defence argued unsuccessfully that the evidence in question ought not to be admitted before the jury as its reliability was highly questionable and the circumstances in which it had been obtained were inherently unfair and fell below so far below minimum standards of fairness so as to require its exclusion in accordance with The People (Director of Public Prosecutions) v Shaw  I.R. 1. The jury were allowed to hear the voice identification evidence and to consider it together with other circumstantial evidence adduced by the prosecution. The judge, however, gave the jury a strong Casey / Turnbull type warning adapted to the context of voice identification. The accused was convicted and later appealed to this Court on the ground, inter alia, that the trial judge had been wrong in admitting the voice identification evidence before the jury.
48. In its judgment this Court reviewed the various cases and materials which had been opened to it, which included the Irish case law on visual identification, and the English jurisprudence on voice identification evidence and voice identification evidence specifically, culminating with R v. Flynn and R v St John.
49. It was made clear that each case must be judged on its own particular circumstances, as indeed appears to be the approach of the Court of Appeal (Criminal Division) in England. In assessing whether or not in any particular case to admit either voice identification evidence or voice recognition evidence, especially of the lay listener type, a trial judge must concern himself both with the cogency of the proposed evidence, and also with the fairness or otherwise of allowing its admission.
50. In terms of the cogency requirement the trial judge must, on the one hand, bear in mind the common sense and logical proposition, articulated by Gage L.J. in R v. Flynn and R v St John, that the greater the familiarity of the listener with the known voice the better his or her chance of accurately identifying a disputed voice, while on the other hand also bearing in mind that a confident recognition by a lay listener of a familiar voice may nevertheless be wrong.
51. In terms of the fairness requirement, a trial judge will be concerned with whether an appropriate Casey / Turnbull warning could suffice to ensure minimum standards of fairness are met. It is likely that in a case where appropriate procedural safeguards were employed in the gathering of the controversial evidence such a warning will more readily be regarded as sufficient. However, recognising that the construction of safeguards is not as easily done in respect of the gathering of voice identification or recognition evidence, as it is in the case of visual identification evidence, this Court, in its judgment in The People (Director of Public Prosecutions) v Crowe, sought not to be unduly prescriptive in terms of requiring specific procedural safeguards in every case, stating:
“71. While it has not been prepared to do so in this particular case, the Court does not foreclose on the possibility that in a future case it might be persuaded to uphold the admission of voice identification evidence in the absence of appropriate procedural safeguards, depending on the circumstances of the case, and in particular the degree of procedural unfairness involved, and whether the attendant risk of wrongful conviction was capable of being adequately offset by other measures such as a Casey /Turnbull type warning.”
52. Accordingly, in determining whether or not minimum standards of fairness can be met in admitting before a jury voice identification evidence or voice recognition evidence which is clear and cogent in its terms, the trial judge will concerned to ascertain to what extent the proposed evidence is capable of being adequately tested in the crucible of cross-examination so that infirmities with the potential to affect its reliability might be properly elucidated and exposed before the jury. In that regard, it will be a relevant, though not necessarily dispositive, enquiry to ascertain whether procedural safeguards that might have assisted in that regard could reasonably have been expected to have been put in place in the circumstances of the case, and whether and to what extent they were in fact utilised. If the trial judge can be satisfied that the controversial evidence is capable of being adequately tested then it may be safely admitted providing a appropriate warning of the Casey / Turnbull type, adapted to the context of voice identification or recognition, is given in due course in the judge’s charge. If the trial judge concludes that he cannot be so satisfied, and that the circumstances in which the evidence was obtained were so egregiously unfair that no warning could suffice to guard against the risk of miscarriage of justice, then the proper course would be to exclude it.
53. The respondent in the present case has sought to argue that the present case is to be distinguished from The People (Director of Public Prosecutions) v Crowe on the basis that the Crowe case involved voice identification evidence whereas the present case involves voice recognition evidence, and also on the basis that the circumstances of the Crowe case were unusual and specific and radically different from those in the present case. This Court considers that while the two cases may be legitimately distinguished on those accounts, it is not correct to suggest that lay listener voice identification evidence and voice recognition evidence are necessarily to be treated any differently as a matter of principle. In general the approach to both types of evidence should be the same. However, voice recognition evidence will frequently, though not invariably, be based upon a claim of strong familiarity with the subject voice, and in those circumstances is likely to be rated as having more cogency than a voice identification made by stranger following a single encounter, or limited number of encounters, with the subject voice. Be that as it may, there will from time to time be exceptions and every case must depend on its own circumstances.
54. Moreover, although it was argued by the respondent that formal voice identification procedures were likely to have less utility as a safeguard in a case of recognition, as opposed to a case of identification, the Court does not accept that that is necessarily so, or that it is a valid basis per se for treating voice identification evidence and voice recognition evidence differently. The value of the safeguard that may be afforded by the adoption of a formal identification procedure is that it allows a claim of familiarity, which is key to the reliability and correctness of a purported identification or recognition, to be better tested, and potential infirmities associated with the encounter, such as clarity of the voice heard, duration of the encounter, and bias creating features of the encounter, to be exposed.
55. The Court readily accepts that a formal procedure may not be possible in every case, particularly where, as in the present case, the identification or recognition occurs during the res gestae and is accompanied by special circumstances that may be very difficult, if not impossible, to replicate. In the present case Theresa Kelly says that she recognised the voice of someone, who appeared to be attempting to disguise his voice by imitating the accent of a traveller, through the closed door of a bedroom in the house at 531 O’Malley Park, as being that of the first named appellant with whose voice she was well familiar. The recognition itself occurred during the res gestae, and not after the fact. The fact that she did not initially disclose to the Gardaí that she had so recognised it does not alter the fact that the actual recognition occurred at the material time. No formal procedure was possible at that time. Moreover, even if the exact situation could have been replicated in any formal procedure adopted after the fact, a somewhat improbable scenario, at best such a procedure could only address her ability to again recognise the voice of the first named appellant in similar circumstances, on another occasion.
56. In this case counsel for the first named appellant has not gone so far as to suggest a replication of the circumstances of the identification should have been attempted. However, he has suggested that a formal voice identification parade should have been attempted utilising the recorded voice of the first named appellant and the recorded voices of a number of other males as foils, and submits that guidance with respect to setting up such a procedure was to be found in United Kingdom Home Office Circular 057/2003, a document to which specific reference was made by this Court in The People (Director of Public Prosecutions) v Crowe.
57. This Court is not convinced that such an exercise would have had value as procedural safeguard in the circumstances of this case. Demonstration of a witness’s ability to repeat a voice identification or recognition on a second or subsequent occasion, and under controlled circumstances, could undoubtedly be of value in a case where a basis existed for challenging the degree of the witness’s familiarity with the voice in question, but would serve little purpose in a case, such as the present, where a high degree of familiarity with the voice at issue was not in dispute.
58. The voice recognition evidence in the present case was not attacked in cross-examination either on the basis of a lack of familiarity with the voice, or even on the basis that the witness was simply mistaken. Rather it was expressly put to Ms Kelly that she was lying and deliberately giving false testimony. There was no inhibition in the circumstances of the present case to a potentially effective cross-examination of the witness based on the circumstances of the encounter, e.g., the fact that the owner of the voice and the witness had been in separate rooms separated by a closed door; the fact that the speaker appeared to have an accent that might or might not have been genuine; the clarity or lack thereof of the voice heard; the timbre of the voice, the brevity of the encounter; the pre-occupation of the witness with the need to attend to the baby; whether or not the baby was crying at the same time, and if so the degree of distraction that that was providing; the fact that the witness had just woken up from sleep; and the fact that the witness had within the previous twelve hours consumed both heroin and alcohol. Moreover, detailed cross-examination was also going to be possible concerning Ms Kelly’s initial failure to mention to the Gardaí that she had recognised the first named appellant’s voice, and also concerning her recorded early equivocation which later hardened into an expression of certitude. There were in fact many potentially rich veins to be mined and explored in cross-examination with very little to inhibit it. Some of these themes were indeed pursued in the cross-examination that ultimately was conducted, but not in support of any case based on erroneous or mistaken identity offered in good faith. Rather they were pursued in support of the contention that the witness could never in fact have heard what she claimed to have heard, that her account was inherently improbable, and that she was deliberating fabricating her evidence that she recognised the first named appellant’s voice.
59. In the circumstances of this case, where the proposed voice recognition evidence was clear and cogent in its terms, and was fully capable of being properly and effectively cross-examined upon and tested in terms of its credibility and reliability, there was no reason the jury should not have received the evidence of Ms Kelly, providing it was coupled with a suitable Casey /Turnbull type warning adapted to the context of voice recognition evidence. Such a warning was duly given in this case and is not itself the subject of any complaint.
60. In the circumstances this Court rejects the first named appellant’s first ground of appeal.
The statements admitted pursuant to s. 16 of the Act of 2006.
61. In order that the complaints of the first named appellant may be fully appreciated it is necessary as a preliminary to set forth the terms of the relevant provision, and to rehearse in a little detail what has been stated to date in relevant jurisprudence concerning how it is to be interpreted and applied..
62. S.16 of the Act of 2006 provides:
“16.— (1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination—
(a) refuses to give evidence,
(b) denies making the statement, or
(c) gives evidence which is materially inconsistent with it.
(2) The statement may be so admitted if—
(a) the witness confirms, or it is proved, that he or she made it,
(b) the court is satisfied—
(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(ii) that it was made voluntarily, and
(iii) that it is reliable,
(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.
(3) In deciding whether the statement is reliable the court shall have regard to—
(a) whether it was given on oath or affirmation or was video-recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,
and shall also have regard to—
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.
(4) The statement shall not be admitted in evidence under this section if the court is of opinion—
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.
(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.”
63. The effect of s. 16 of the Act of 2006 was considered by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Murphy IECCA 1 (Unreported, Court of Criminal Appeal, 18th January, 2013). This Court has had full regard to the careful analysis contained in the judgment of McKechnie J who gave judgment on behalf of that court.
64. The judgment in The People (Director of Public Prosecutions) v Murphy also has much to say concerning the appropriate nature and content of a trial judge’s charge to a jury in any case in which a decision has been made to admit statement evidence pursuant to s. 16 of the Act of 2006. However, as the first named appellant’s complaint in the present case relates to the decision to admit such evidence in the first place, and as no criticism is made of the trial judge’s charge, it is unnecessary to review that aspect of the judgment in Murphy, save to remark that in the course of criticising the trial judge’s charge with respect to s. 16 in that case McKechnie J alluded to a matter of some importance, namely the differing functions to be performed by a trial judge and jury respectively in applying and operating the controversial section. He stated:
“. This charge, as so formulated, was inadequate, apt to confuse and misconstrued the direction requirements inherent in and stemming from the section. It is for the judge, under s. 16, to rule on admissibility, which involves determining whether each statement was made voluntarily and whether in the circumstances each has sufficient characteristics of reliability such that it is capable of being relied upon. If any statement fails one or both of those indispensable prerequisites, the judge must disallow their introduction. Admissibility, as has been said, is therefore the lone province of the judge. Once admitted, it becomes a matter solely for the jury to decide what weight, if any, to attach to the evidence so outlined, which clearly involves a right to attach no weight, if they so decide. That is purely a jury matter. The charge as formulated by the trial judge however blurs this distinction between his role and that of the trier of fact.”
65. The application by the prosecution to utilise s.16 of the Act of 2006 in respect of the statements made by Patrick Stewart, junior, was not immediately acceded to by the trial judge, and in fact was renewed on a number of occasions before it was ultimately granted. The first application was made on day 6 of the trial and continued into day 7. Mr Patrick Stewart had given his initial evidence on day 6 when he had failed to give evidence in accordance with his statement concerning many material matters including, in particular, the most significant events during his journey in the Volkswagon Bora on the morning of the 9th of January 2011 when, according to his statements, he had observed the appellants’ to be in possession of what he had concluded was a shotgun, overheard the first named appellant stating that he thought he had dropped a cartridge, and observed both appellants searching for the dropped cartridge in the back of the car. In support of their intended application the prosecution adduced evidence in the absence of the jury concerning the taking of the controversial statements from Patrick Stewart, junior, on the 15th and 16th of January 2011, and the video recording of the reading over of the lengthy statement of the 15th of January 2011 to Patrick Stewart, junior, was played in court. Following counsel’s the initial application the trial judge indicated that he wished to hear what other evidence would be available, stating:
“JUDGE: All right, well, I propose to go only a certain distance at this stage. If one looks at the structure of section 16, it seems to me that it's a two-stage or two-phase operation. One has to in the first instance to consider whether it's a statement that is capable of being admitted pursuant to the statute. And then, secondly, if that is answered affirmatively it's necessary to consider whether it's a statement that ought to be admitted. And those two stages require separate consideration. I am of the view that this is a statement that is capable of being admitted pursuant to section 16. It seems to me that this is a case where both accused have been sent forward for an arrestable offence, the offence of murder, that a statement relevant to the proceedings has been made by the witness. I am satisfied that the evidence that he has given while the jury was present is inconsistent materially and indeed fundamentally inconsistent with the account that he gave in the statement that he made at an earlier stage. I'm satisfied, as I say, that that earlier statement was made. I'm satisfied of that both because essentially the witness doesn't deny it, and, indeed, really accepts that he made the statement or certainly 99% of it perhaps an issue in relation to the role played by his mother at the end. But, essentially, admits making the statement. I've the evidence of the gardaí that the statement was made and I've the evidence of my own eyes in terms of what I saw when he adopted the statement on the monitor on the TV. Clearly the great bulk of the statement is a statement that direct oral evidence would be admissible. I'm in no doubt that it was made voluntarily. And that is really as far as I'm minded to go at this stage. It seems to me that it's not a statement that is in any sense inherently unreliable. But I think a final assessment of its reliability should await other evidence relevant really to the car journey. If I am of the view that it's reliable, having heard the entirety of the evidence on that topic, it will then become necessary to consider the various other factors that a Court has to decide on the question of whether what is admissible ought to be admitted. And in particular, it seems to me that the other evidence in the case is going to be relevant to section 4(b) because only when the other evidence has actually been adduced will we know the significance of the evidence that's now sought to be put before the jury by way of section 16. And it seems to be that the other evidence that's available relating to the car journey and the stop off is relevant or is potentially relevant in three ways. First of all, it may provide further information on the extent to which the statement should be regarded as reliable or unreliable. And, secondly, the question of whether it is necessary or unnecessary to permit what is a very radical departure from the traditional conduct of a trial will be much clearer. So I propose to defer the final decision, while indicating that on the, what might be described as the preliminary matters that go to admissibility, excluding the question of reliability, I'm satisfied, so I'm satisfied that it's a statement that's potentially capable of being admitted. And I'll deal with the question of whether it ought to be admitted when I have a more complete picture.”
66. Further evidence was then adduced in the presence of the jury including the evidence of the Donnellan brothers who live at 22 Walnut Court described earlier in this judgment at paragraph 11 above. Evidence was also adduced from Ian O’Leary, as described at paragraphs 12 to 16 above, and the jury further received evidence that the Volkswagon Bora driven by Ian O' Leary on the date in question was captured on CCTV footage throughout its journey until it eventually arrived at Southill where the two appellant left the vehicle. It was the prosecution case that the appellants were the same two men who were captured on CCTV footage harvested from the Southill area and seen making their way to the home of Desmond Kelly at 531 O' Malley Park minutes before the murders. The jury also heard other evidence concerning the movements of the Volkswagon Bora motor car in which the appellants travelled on the morning of the 9th January 2011.
67. Having heard the additional evidence adduced, and in circumstances where the prosecution were persisting with their application under s. 16 of the Act of 2006, the trial judge ultimately acceded to the application, ruling as follows:
“JUDGE: All right, well, well, I indicated this morning that I was, subject to deal[ing] with the question of reliability and then if necessary, the wider considerations that arise for consideration, that I was satisfied that this was a statement that was potentially admissible. In that regard, it seems to me that the heading of the statement, which involves a declaration that the person making it is making the statement to the best of their knowledge and belief and knowing that if it's tendered in evidence that they'd be liable to prosecution if they state in it anything which they know to be false or don't believe to be true does, in fact, amount to a statutory declaration. So in that sense I'm in no doubt but that the basic threshold is met. The significant issue here is firstly as to reliability, and then if that is met, the question is as to whether because of other evidence in the case, its admission is unnecessary. So far as the question of reliability is concerned, it seems to me that there are a number of matters that require consideration. The first is that, and this appears from the cross-examination of Mr Stewart that took place in the absence of the jury. That he was detained for a number of days and questioned. And his position during that period, to borrow language used by Mr Gillane, evolved. Essentially from a situation where, as I understand it, he was initially denying having been involved in giving his brother and the other person a lift at all, to a situation where he gradually moved to the position that found its way into this statement that was read to him on video tape. The question is: does the fact that the version that appeared in the final statement in the statement as read on video, that that wasn't the first version, does that cause a question mark about its reliability? And it seems to me that it doesn't. If one deals with the more usual situation where the Court is concerned either at the stage or admissibility of the judge or subsequently a jury dealing with the question of weight. If one considers a more usual situation of an accused person making an admission. It isn't at all unusual that the admission isn't volunteered at the first opportunity. But that rather the admissions come well into detention and after an account first presented has been challenged. So it doesn't seem to me that that of itself renders it unreliable. Indeed in some ways it perhaps, given the relationship between the witness and the accused, indicates a degree of reliability because it seems to be entirely natural that somebody who is related, as the witness is, would have been reluctant to provide evidence against close relatives. If such was the question then is, is there any other indication of reliability. And it seems to me that there is. There is, first of all, the fact that aspects of the statement, not critical aspects it has to be said, but aspects in terms of movements in the car, leaving the house, and so on are supported by a number of other sources. On the critical question of whether the two passengers in the car went to the house, entered the house and emerged with a gun, it seems to me that the evidence is materially supported by the evidence of Mr O'Leary. And also by the evidence of Mr Donnellan. And I say that notwithstanding the fact that the timetable offered may well be subject to a very effective challenge and for the moment I'm operating on the assumption that it will be subjected to an effective challenge. But the witness, while offering a timetable, did indicate that he wasn't in a position to date when the gun first arrived. The witness who says that the gun was taken from the bedroom is supported, to a degree, by his brother who has the accused, Mr Stewart, going upstairs in the house. So it seems to me that there is a degree of support for its reliability in that fact. And in all the circumstances, it seems to me that it meets the threshold of reliability to render it admissible. And the question then arises whether, even if it is admissible, it ought to be admissible. And the issue that arises in particular in that regard is as to whether the admission is unnecessary having regard to other evidence in the case. And it seems to me that that isn't has not been what is made out. On the contrary, because the present state of the evidence would, assuming for the moment that it were to be accepted, would link Mr Stewart, the accused Mr Stewart, with the gun, but wouldn't indicate any involvement on the part of Mr O'Brien. But more fundamentally, as regards both accused, this is obviously a matter of absolutely fundamental importance that goes to the heart of the case as to whether the two accused can be linked with a gun at a time proximate to a murder. And clearly any evidence that tends to do that is of very considerable importance. And I can't see how it can be said that evidence that goes to that issue could be said to be unnecessary. And, therefore, I'm minded to admit the evidence. I should just say that so far as the statement itself is concerned, as I say, I'm satisfied that it contains the statutory declaration, and in addressing the question of reliability, I'm having regard to the fact that both its reading over was video recorded. To what I've witnessed of that process, which it seems to me showed that Mr Stewart was quite comfortable at that stage interjecting on a number of occasions. And apparently seemed to be willing to engage in some element of banter or humour with his interviewers. And overall, the impression one gets of the reading over sequence, was that Mr Stewart had ownership of the situation and was comfortable and in control. I so it seems to me that whether one takes the view that the reading over means that it can be said that the interview was video recorded or whether one looks at the wider circumstance, which is that what appears in the interview, accords with what has been said on earlier video recorded interviews at a time he was in custody. And what one has seen of the way in which he adopts the statement as his own on video recording, that all of those circumstances support the view that the statement is reliable. In the circumstances I propose to admit the prosecution to avail of section 16.”
68. Counsel for the first named appellant makes a number of complaints with respect to the correctness of the trial judge’s ruling. He accepts, however, that Patrick Stewart, junior, gave oral evidence which in part was materially inconsistent with his prior voluntary statement and takes no issue with the trial judge’s ruling on voluntariness. However, his first major complaint is that, those matters having been established, the prior statement can only be admitted thereafter pursuant to s. 16 of the Act of 2006 if it is (i) reliable - s. 16(2)(b)(iii) and (ii) necessary - s.16(4)(b). It is contended on behalf of the first named appellant that neither of these requirements was satisfied.
69. It was submitted that s. 16(3) of the Act of 2006 elaborates upon the reliability requirement in s. 16(2)(b)(iii) and states that in deciding whether a statement is reliable, the Court shall have regard to (i) whether the statement was given on oath, affirmation or was video recorded, (ii) if the statement was not given on oath, affirmation or was video recorded, if by reason of circumstances in which the statement was made, there is other sufficient evidence to support its reliability and (iii) any explanation of the witness for giving evidence which is inconsistent.
70. Counsel for the first named appellant complains that neither statement relied upon at trial was made on oath or by affirmation, nor were they videotaped. It was submitted that the reading over of the longer of the two statements on video-tape was of little significance and that did not meet the strict requirements of s.16(3) of the Act of 2006. Since neither statement was made on oath or by affirmation, nor recorded on videotape, there was no other or sufficient evidence available to ensure that the witness understood the requirement to tell the truth, as mandated by the provisions of the section.
71. Counsel for the first named appellant submitted that in circumstances where the making of neither the long statement of the 15th January 2011, nor the shorter one made on the following day, was recorded on video there was no opportunity to assess the veracity of the witness at the time he was making material assertions. This deficiency was particularly significant in circumstances where, on the respondent's case, the witness had lied at earlier interviews. The respondent was in effect asking the trial judge to prefer one version over another and to allow only the preferred version to be read to the jury, notwithstanding that in previous statements the witness had been saying something radically different.
72. It was further contended that the reading over of one of the two statements at issue on videotape was no panacea for what was a fundamental failure to comply with the strict requirements of s. 16(3). It was acknowledged that the trial judge seemed to take the shorter statement made on the 16th of January 2011, which was not even read over on videotape, as being supplemental, and simply an addendum, to the longer one made the previous day, and that he had approached it on the basis that "the considerations that applied in respect of the long statement essentially governed" the shorter one. However, it was submitted that each statement should have been evaluated alone, and the fact that the statement of the 16th of January had not even been read over on videotape made it particularly frail in terms of reliability.
73. While acknowledging that the trial judge had stated that there was other evidence sufficient to indicate that the statements at issue were reliable, counsel for the first named appellant contends that he did not give sufficient, or indeed any, weight to the explanation given by the witness as to why he had given oral evidence inconsistent with his prior statements. The witness had disavowed what he said in the statements and said he was wrong on the material aspect of the appellant having a gun and looking for cartridges. In that context, the witness was someone who had consumed a huge amount of alcohol and, moreover, had felt under pressure while in custody. The trial judge did not allude to any of this in his ruling, and accordingly it was impossible to know what weight, if any, he gave to the explanations that had been proffered. Counsel submitted that the trial judge was expressly required to have regard to the witness’s explanations by s. 16(3) of the Act of 2006, which uses the mandatory language “shall”. Despite this there is no evidence that the trial judge had the requisite regard or any regard to this requirement in making his ruling.
74. Counsel for the first named appellant has further submitted that the admission of the statements at issue was not in fact “necessary”, having regard to other evidence given in the proceedings, particularly that of Ian O'Leary, and contends that the trial judge was incorrect in ruling that their admission was indeed necessary to link the first named appellant to an involvement in the shooting. The trial judge, it will be recalled, had regarded the evidence of the car journey after the stop off at 22 Walnut Court as being critical “because the present state of the evidence would, assuming for the moment that it were to be accepted, would link Mr Stewart, the accused Mr Stewart, with the gun, but wouldn't indicate any involvement on the part of Mr O'Brien.” Counsel for the first named appellant submitted that the trial judge was incorrect in suggesting that that was so.
75. In support of his contention that the trial judge had been incorrect, counsel pointed to Ian O’Leary’s evidence that when the first named appellant left his car close to the entrance to Southill, he had what looked like a barrel of a shotgun in his jacket, which came to just over the knee. While, under cross-examination, he was more equivocal and conceded that what he had seen could have been a bar, he had been firm in stating that he had thought it was the barrel of a shotgun. Furthermore, the court had heard evidence from Andrew Donnellan who had stated that the second named appellant rang him on the relevant morning looking to collect a gun which he had been storing at the Donnellan house for some 4 or 5 months. He had stated that shortly thereafter, both appellants had called to his house and he had taken the second named appellant upstairs and had showed him where the gun was hidden at the side of the dresser in his bedroom. He had stated that there were 3 or 4 cartridges with the gun, which was a single barrel sawn-off shotgun. He had stated that the first named appellant had stayed at the hall door and that when the second named appellant went downstairs, he had put the gun down his sleeve. Both men then got into the Volkwagon Bora that was being driven by Ian O'Leary. Counsel for the first named appellant has submitted to this Court that in circumstances where the court had received all of that evidence there was ample evidence of a link between the first named appellant and the shooting, even without the evidence contained in the statements of Patrick Stewart, junior.
76. In responding firstly to the complaint that the trial judge had disregarded the imperative contained in the legislation that he should be satisfied as to the reliability of the statements proposed to be admitted before admitting them, counsel for the respondent pointed to the very detailed and discursive ruling given by the trial judge. He pointed out that the care taken by the trial judge was manifest, not least from his declining to rule on the issues of reliability and necessity until he had heard additional evidence. He was only prepared to deal in the first instance with whether the statements at issue were capable of being admitted pursuant to the section, and specifically deferred ruling on whether, once it was determined that they were capable of being admitted, they ought in fact to be admitted. Counsel for the respondent submitted that it was clear from his whole approach that the trial judge considered that statements should only be admitted pursuant to s. 16 of the Act of 2006 as a last resort.
77. Counsel for the respondent pointed out that in his further ruling the trial judge had then specifically adverted to the two factors that he was required to consider in determining the secondary question as to whether the statements ought to be admitted, namely “reliability” and “necessity”, stating:
“The significant issue here is firstly as to reliability, and then if that is met, the question is as to whether because of other evidence in the case, its admission is unnecessary.”
78. On the issue of reliability specifically, the trial judge had gone on to deal extensively with this, noting, inter alia, that the fact that the witness’s story had “evolved” was not, in the circumstances of the case, an indicator of unreliability; that, on the contrary, it was perhaps indicative of reliability; that aspects of the account given in the statements were supported by other evidence; that the statements each commenced with a statutory declaration by the witness to the effect that the statement in question was true to the best of his belief; and the fact that the reading over of long statement of the 15th of January 2011 had been video recorded during which the witness had appeared quite comfortable and will to take ownership of that which was being read over to him. The judge was fully entitled in those circumstances to regard the statements as reliable.
79. While the trial judge was certainly required to take into account any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with his statements, it was submitted that the fact that the judge had not specifically alluded to the witness’s explanations in his ruling did not mean that he did not take them into account. Counsel for the respondent contended that the explanations given were contradictory and incredible and were implicitly rejected by the trial judge. His main explanation was that he had been drinking heavily on the night before the shootings, and was still drunk the following morning during the journey in the Volkswagon Bora. He claimed that his memory was affected by the consumption of alcohol and that his memory of certain things had been wrong. Despite this he had been able at the trial to recount the journey in the Volkswagon Bora in great detail up until the point where it got difficult for him, i.e., the point where the prosecution wished to adduce the evidence concerning what he had seen in the back seat of the car. His attempt to attribute his failure to reiterate before the jury that which he had earlier told the Gardaí to incorrect recollection due to consumption of drink was, in counsel’s submission, simple not credible and the only reasonable inference was that the judge had implicitly rejected it. In addition, in so far as his claim to have been also “under pressure” when making his statement of the 15th of January 2011 at Newcastle West Garda station was concerned, the trial judge had specifically commented on his relaxed demeanour, and his appearance of being in control of his situation, during the reading over of that statement which had been video recorded and viewed by the Court. Further, in so far as he had claimed during the voir dire to have misheard a reference to “cartilage” as “cartridge”, this claim was utterly lacking in credibility and, tellingly, had not been later reiterated before the jury. There was no reason to believe that the trial judge had failed to have regard to the explanations proffered, but if, as was clearly the case, none of them had impressed him as impugning in any way the reliability of the statements at issue it was unsurprising that he did not feel it necessary to specifically refer to them.
80. Turning then to the complaint that the admission of the controversial statements was unnecessary, counsel for the respondent contended that the argument that it was unnecessary to admit them in circumstances where Patrick Stewart, junior, had travelled with the appellants in the car to Southill was, to quote him verbatim, “simply unstateable.” Given that it was a circumstantial evidence case the material was clearly important in any event, but the trial judge had correctly identified its fundamental and central significance when he said:
“ … the present state of the evidence would, assuming for the moment that it were to be accepted, would link Mr Stewart, the accused Mr Stewart, with the gun, but wouldn't indicate any involvement on the part of Mr O'Brien. But more fundamentally, as regards both accused, this is obviously a matter of absolutely fundamental importance that goes to the heart of the case as to whether the two accused can be linked with a gun at a time proximate to a murder. And clearly any evidence that tends to do that is of very considerable importance. And I can't see how it can be said that evidence that goes to that issue could be said to be unnecessary.”
81. Counsel for the respondent acknowledged that the prosecution already had the benefit of the testimony of the Donnellan brothers, and also that of Ian O’Leary. However, the Donnellan brothers’ evidence only brought matters a certain distance, and Ian O’Leary had, under robust cross-examination, rowed back considerably on his evidence in chief and had accepted that what he had thought was a gun might in fact have been a bar. Given that it was a circumstantial evidence case, and that the state of the evidence at that point in the trial was as described, there was nothing that the prosecution could responsibly or safely have sought to leave out. It could not be said in those circumstances that the evidence provided by Patrick Stewart, junior’s, statements was unnecessary. On the contrary it was manifestly necessary that it should be adduced.
82. This Court has carefully considered the arguments adduced on both sides and is satisfied that the trial judge was correct in ruling the statements of Patrick Stewart, junior, admissible pursuant to s. 16 of the Act of 2006.
83. In so far as the trial judge was concerned with reliability there was ample evidence to support the conclusion that he came to. He took a number of factors into account, variously stating:
• “So far as the question of reliability is concerned, it seems to me that there are a number of matters that require consideration. The first is that, and this appears from the cross-examination of Mr Stewart that took place in the absence of the jury. That he was detained for a number of days and questioned. And his position during that period, to borrow language used by Mr Gillane, evolved. Essentially from a situation where, as I understand it, he was initially denying having been involved in giving his brother and the other person a lift at all, to a situation where he gradually moved to the position that found its way into this statement that was read to him on video tape. The question is: does the fact that the version that appeared in the final statement in the statement as read on video, that that wasn't the first version, does that cause a question mark about its reliability? And it seems to me that it doesn't.”
• “It isn't at all unusual that the admission isn't volunteered at the first opportunity. But that rather the admissions come well into detention and after an account first presented has been challenged. So it doesn't seem to me that that of itself renders it unreliable. Indeed in some ways it perhaps, given the relationship between the witness and the accused, indicates a degree of reliability ….”
• “… the question then is, is there any other indication of reliability. And it seems to me that there is. There is, first of all, the fact that aspects of the statement, not critical aspects it has to be said, but aspects in terms of movements in the car, leaving the house, and so on are supported by a number of other sources.”
• “I'm satisfied that it contains the statutory declaration”
• “… in addressing the question of reliability, I'm having regard to the fact that … its reading over was video recorded. To what I've witnessed of that process, which it seems to me showed that Mr Stewart was quite comfortable at that stage interjecting on a number of occasions. And apparently seemed to be willing to engage in some element of banter or humour with his interviewers. And overall, the impression one gets of the reading over sequence, was that Mr Stewart had ownership of the situation and was comfortable and in control. I so it seems to me that whether one takes the view that the reading over means that it can be said that the interview was video recorded or whether one looks at the wider circumstance, which is that what appears in the interview, accords with what has been said on earlier video recorded interviews at a time he was in custody. And what one has seen of the way in which he adopts the statement as his own on video recording, that all of those circumstances support the view that the statement is reliable.”
84. For the avoidance of doubt, while a statutory declaration by the witness to the effect that a statement was true to the best of his or her belief is clearly not regarded by the statute as being as clear an indicator of reliability as an oath or affirmation or video recording, each of which are singled out for mention in s. 16(3)(a) of the Act of 2006, further account can nevertheless still be taken of a statutory declaration, in conjunction with other matters, for the purposes of s.16(3)(b), in determining whether a statement is reliable.
85. The Court further accepts that it is implicit in the trial judge’s ruling that he was rejecting the explanations that had been advanced by the witness as to why he had given oral evidence inconsistent with his prior statements. It is clear to this Court from the trial judge’s entire approach that he was fully au fait with the requirements of the statute. He exhibited great care in the manner in which he dealt with the prosecution’s application to utilise s.16 of the Act of 2006, refusing indeed on the first occasion to do more than rule on whether the statements were capable of admission, pending receipt of further evidence. His rulings were detailed and careful, and his overall disposition exhibited an understanding that the Oireachtas had set a high threshold to be met before s.16 of the Act of 2006 might be utilised. The Court agrees with counsel for the respondent’s observation that the trial judge ostensibly viewed the admission of a statement pursuant to s. 16 as being something that he would only permit as a last resort rather that something that he would readily accede to. While would have been better, having regard to the terms of s. 16(3) of the Act of 2006, if the trial judge had stated expressly that he was rejecting the explanations advanced by the witness, there is no express requirement in the statute that he should do so. The only requirement is that regard should be had to the witness’s explanations.
86. This Court notes that trial judge had had the opportunity to observe the witness being examined during the voir dire, in the course of which the witness had, it is clear from the transcript, exhibited some belligerence and had parried with prosecuting counsel. It was during this encounter that he had proffered the explanations now in controversy. Given that the trial judge had had this opportunity; given the nature of the encounter, which was most unlikely to have been forgotten or overlooked; the overall care with which the trial judge approached his task; the nature of the explanations proffered by the witness, which were fairly characterised by counsel for the respondent as incredible and contradictory; and the fact that the trial judge had been expressly informed by counsel for the prosecution, in the course of making his application to utilise s.16 of the Act of 2006, that in assessing reliability the Court would have to have regard to the witness’s explanations, this Court is satisfied that the trial judge did in fact have regard to those explanations and implicitly rejected them, as has been submitted by counsel for the respondent.
The evidence concerning the CCTV footage.
87. On day 9 of the trial the jury heard evidence that the Gardaí had recovered CCTV footage recorded on the morning of the 9th of January 2011 by cameras at various locations around Limerick City. The footage was of variable quality, and some of it was not continuous but rather was sporadic where activation of recording had been controlled by movement sensors.
88. An application was made to the trial judge by prosecuting counsel in the absence of the jury for liberty to adduce evidence, in the form of a narrative, from Garda Nick Jones who knew the area, and the locations of the various cameras, and who had viewed the CCTV footage in question, concerning what he had seen.
89. Counsel for the second named appellant, apprehending that the Garda might volunteer opinions before the jury as to matters in controversy, objected to the proposed evidence, contending that “the interpretation of physical evidence, the CCTV is a matter for the jury”. Counsel for the first named appellant adopted his colleague’s objection, but conceded that the provision of some limited assistance to the jury might be unobjectionable. In that regard, he stated: “If my friend wishes to assist the jury by having this witness pinpoint to them the relevant locations, I can't see anything wrong in principle about that or identifying a figure or the fact that there's, for example, a vehicle. But it shouldn't go any further than that, in my respectful submission.”
90. The trial judge ruled as follows:
“Yes, all right. Well, it seems to me that the situation is this: that first of all, that the jury are entitled to a degree of assistance. It isn't to be the situation that public money should be wasted by asking them to watch apparently meaningless clips and being asked to make what they will of it. That doesn't seem to me to accord with seeking to achieve a fair trial at all. On the other hand, it seems to me that the witness should not become involved in a qualitative exercise and making judgment calls as in: "I recognise X or Y. The clothes in this clip are the same as the clothes in that clip." So, it seems to me that what would be an appropriate situation is that the material can be played for the jury. The witness can operate as a guide. That means that he can, clip by clip, indicate the camera that appears to be involved by reference to the map, what area in the map appears to be involved, directions of travel, and so on. Insofar as some of the clips deal with motor vehicles, I see nothing objectionable if he's asked does he want to point to any features of the motor vehicle and if he wants to draw the jury's attention to the fact that a vehicle is missing an alloy wheel or has an L plate or whatever, there is nothing objectionable. So far as individuals are concerned, it seems to me that he's entitled to relate the clip to a camera, relate the clip to a particular location on the map, direction of travel, if necessary relate it to the previous clip that they've seen or indeed the next one that they're going to see. And likewise, just as I think that there's nothing objectionable in him drawing attention to features of the motor vehicles, it seems to me he's entitled to draw attention to matters that the prosecution contend are of significance. So, he's entitled to point to features of clothing or whatever, but only on the basis of: "This is what is visible to me at this moment and this is where I invite you to direct your attention so that you too will see the same thing." It's not to be on the basis of: "And this is the same clothing as was worn in the previous clip." Still less is it to be: "And this is the same clothing as was worn in The Spotted Dog or in the unnamed building in Limerick city centre," or anything of the sort. So, it is not a qualitative judgemental exercise. He is, it seems to me, entitled to, because the jury are entitled to have assistance, he's entitled to act as a guide for the jury in bringing the jury through the clips. At some stages it may be that he'll want to go to the monitor to direct their attention to a particular part of the photo to concentrate their attention on the foreground or the back right corner or whatever it's to be. But I would stress that there is to be no judgemental qualitative exercise.”
91. Counsel for the second named appellant specifically drew the trial judge’s attention to a line in the witness’s statement where he had said “The same two persons enter the house”. In response, the trial judge added:
“The phrase "same" clearly involves a judgment call and falls foul of the ruling that I gave. If he contends that he sees two people entering the house and one leaving, he's entitled to say that, subject obviously to the entitlement of others to cross examine on the basis that nothing of the sort is visible.”
92. Addressing prosecuting counsel, the trial judge then further added:
“Well, subject to hearing what your colleagues have to say, it seems to me that the same principles apply. That he's entitled to draw the jury's attention to activity on the screen but he's not entitled to engage in a qualitative exercise in terms of say[ing]: "And that's the same person who left a few minutes previously," or: "The clothing is the same" or: "The clothing is different" or whatever. He's entitled to say: "I am looking at the screen, this is what I say is visible to me, and I draw your attention to it."
93. The evidence following the Ruling of the learned Trial Judge was in fact given by Garda Nick Jones on Day 12 of the trial being the 24th October 2012. At Page 9 of the Transcript for Day 12 the relevant CCTV footage was played by Garda Nick Jones for the benefit of the Jury. Garda Jones give a description as to what he perceived to be visible outside number 531 O’Malley Park. In the course of this evidence he stated: “We have two individuals in front of 531”. The appellants maintain that it was not readily apparent that there were two persons to be seen. Further examination of the witness indicated that he was locating one of those persons as having appeared at a window visible on the tape (about which there was no controversy) and the other person as being simultaneously present at or near an adjacent door (about which there was controversy). He was asked:
Q. Why do you say there's a second person?
A. If I can loop it then a little bit, when you see the person appear at the window, you can see the shade change on the door. So the door darkens a little bit. So that would indicate to me that there's somebody there. And also you'll see a little white dot appear, and if I'm permitted, just right here where the mouse is pointed, I'll loop it again, you can see a white dot appear. Which again to me would look at something the size of a shoe or that indication. That's what I would see here. So again the shade change would indicate to me that, yes, there is I see someone at the door there.
94. It was submitted on behalf of both appellants that this was the giving of a non-expert opinion by a member of the Garda Siochána and was a usurpation of the role of the Jury. It was for the jury to assess whether the footage showed one or two people as having been present. In support of this submission this Court was referred to Attorney General (Ruddy) v Kenny (1960) ILTR 185 and Davie v Edinburgh Magistrates (1953) S.C. 34.
95. In reply counsel for the respondent has submitted that there was nothing untoward about the witness giving evidence about what he had observed upon close scrutiny of the footage, and indeed what he had deduced from his observations, in circumstances where they were inextricably bound together. Providing the witness could be challenged as to his observations, and cross examined as to his deductions, the controversial evidence was properly admissible in circumstances where the witness was acting as a guide to the jury. The jury still had to find the facts and decide whether or not the witness was correct in his observations and deductions. Garda Jones was entitled to explain to the jury the nature of the motion activated recording system, to explain that as a result of this system images could suddenly appear and disappear, and in circumstances where he was used to this system and had repeatedly viewed the footage, to state in guiding the jury that “this is what is visible to me, or this is what I perceive, at this moment on the tape”. The jury could see the footage for themselves, and having had their attention drawn to the salient features, could make up their own minds as to what the tape in fact showed.
96. The case of Attorney General (Ruddy) v Kenny (1960) ILTR 185 is certainly authority for the general proposition that lay witnesses may not express opinions as to a fact in issue. Kingsmill Moore J stated, in an oft cited passage from his (dissenting) judgment in that case, that:
“It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness may testify only to the existence of facts which he has observed with one or more of his own five senses. It is for the tribunal of fact—judge or jury as the case may be—to draw inferences of fact, form opinions and come to conclusions. The witness, as far as possible, puts the judge and jury in the position of having been present at the place and time when the fact deposed to occurred, and having been able to make the observations.”
97. However, this quotation acknowledges the existence of exceptions to the general rule. The judgments in Attorney General (Ruddy) v Kenny duly list some of the acknowledged exceptions.
98. For example, Kingsmill Moore, having referred to expert evidence (as normally understood) then stated:
“The rule is also relaxed where the fact in issue is one which in the circumstances, was not capable of exact observation and where the most that could be expected is an appreciation or an extenuation.”
“Similarly there may be cases where the impression formed by a witness may be of importance, though it would be almost impossible for the witness to enumerate or explain the nature of the observations which produced the impression. Identity is an instance. A witness may identify a person as one whom he has seen before, though he does not consciously arrive at his conclusion by an observation of separate features.”
99. Yet further exceptions are identified in the judgment of O’Dalaigh J. The issue in Attorney General (Ruddy) v Kenny had concerned whether, in a drunk driving prosecution, a Garda could give evidence that in his opinion the defendant was drunk and incapable of driving the vehicle. In the High Court Davitt P had held that he could, and on appeal a majority of the Supreme Court agreed with him. The judgment of O’Dalaigh J, together with that of Lavery J, reflected the majority view. O’Dalaigh J stated:
“With the learned President I agree that drunkenness is not so exceptional or so much outside the experience of the ordinary individual as to require an expert to diagnose it; I adopt his reasoning. Wigmore, I might observe, treats the question in issue in this case stated as beyond argument. In the second edition (1923) of his monumental work on evidence (Vol. IV, p. 194) he cites Lumkin J. (who in Chone v. State (1860) 31 Ga. 467 received testimony that a person seemed to be drunk) as saying: “Really, no other rule is practical. If the witness must be confined to a simple narration of facts, how the person leered or grinned, how he winked his eyes or squinted, how he wagged his head etc., all of which drunken men do, you shut out not only the ordinary but the best mode of obtaining truth.”
He also quotes (Vol. IV, p. 206) the following passages from the judgment of Foster C.J. in Hardy v. Merrill (1875) 56 N.H. 241):—“All concede the admissibility of the opinions of non-professional men upon a variety of unscientific questions arising every day and in every judical inquiry. These are questions of identity, handwriting, quantity, value, weight, measure, time, distance, velocity, form, size, age, strength, heat, cold, sickness and health; questions also concerning various mental and moral aspects of humanity, such as disposition, and temper, anger, fear, excitement, intoxication, veracity, general character, and particularly phases of character, and other conditions and things, both moral and physical too numerous to mention.”
100. In addition Lavery J, in his judgment in Attorney General (Ruddy) v Kenny , referred to “innumerable incidents of everyday life upon which an ordinary person can express a useful opinion and one which ought to be admitted”.
101. Declan McGrath, Barrister at Law, In “Evidence” (2nd Ed, Round Hall) also notes (at 6-104) that “[s]uch an approach was also advocated by Dickson J, delivering the judgment of the Supreme Court of Canada in R v Graat”  2 SCR 819, when he stated, at p. 837:
“I can see no reason in principle or in common sense why a lay itness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.”
102. It seems to this Court that in the circumstances of this case the evidence of Garda Jones, concerning what he observed on the video footage, and his perceptions or deductions based upon those observations, was properly admitted as an exception to, and notwithstanding, the general rule that lay witnesses may not express opinions as to a fact in issue. The trial judge had been rightly concerned to ensure that the witness did not cross any line in terms of what he characterised as a “qualitative judgemental issue”, and his ruling was careful and considered and, in this Court’s view, unobjectionable. Although the appellants contend that the evidence actually given breached the trial judge’s ruling, we do not agree.
103. The appellants’ contention is that the impugned evidence represented the Garda’s qualitative judgment that the recording disclosed the presence of two persons outside 531 O’Malley Park at the material time, in circumstances where the recording did not clearly show that to be so. The case was made that the Garda had not just pointed to what could actually be seen, namely a change in the shading, or a darkening, of the image of the door, and the appearance of a little white dot about the size of a shoe, coincident with the appearance of a person at the adjacent window, but had gone further and had sought to imbue these observable features with a particular significance, suggesting that they were indicative of the presence of a second person other than the person at the window.
104. While this is certainly true, this Court considers that in circumstances where the jury was being introduced to a piece of real evidence that was in a form rendering it difficult for them to discern without some assistance and guidance that which was capable of being observed, and which might possibly provide a basis for inferences, it was within the limits of what was permissible for the Garda not just to point out that which was capable of being observed, but to go further and indicate his perception of the significance of the feature or features to which he was pointing. It seems to this Court that in the circumstances described, the observable facts and the suggested inferences were inextricably entwined and it would have been unreal to have expected the Garda to have confined himself to saying “I draw your attention to the change in the shading, or the darkening, of the image of the door, and the appearance of this little white dot”, without giving the jury any indication as to why he was doing so, and what significance he was attributing to those features. Garda Rice’s testimony, to the extent that it indicated his view of the significance of that which he was pointing out, would have served to focus the jury in their enquiries, but would not, in the judgment of this Court, have served to usurp their function in the particular circumstances of this case. In that regard it was a matter of some importance for the jury to understand that the witness was contending that the darkening or shading effect that he claims to have observed was caused by some occultation of the available light, or the casting of a shadow, by the presence of a second person; and that the witness was further pointing to the white dot about the size of a shoe that he had further observed as lending additional support for his conclusion.
105. The jury would have had no reason to believe that Garda Rice was in a better position than they were to draw appropriate inferences from what was to be observed. However, Garda Rice was undoubtedly more used to viewing CCTV footage recorded from cameras utilising movement activation sensors than they were, and it was unobjectionable therefore that he should guide them as to what was capable of being observed, and as an integral part of that exercise suggest to them the possible significance of it so that they could then focus on the relevant evidence and make their own assessment of it. In circumstances where they were seeing the footage for themselves in court at the same time, and were having pointed out to them that which was capable of being observed, and which was said to justify the inference(s) then being invited, the jury were at full liberty, and indeed were fully equipped, to reject, if they saw fit, the Garda’s perception of the observable facts as being unjustified. However, the Court considers it appropriate to comment that neither appellant sought to make the case that the witness was wrong in his perception, and that there were not in fact two men outside No 531 O’Malley Park on the occasion in question. Though Garda Rice was cross-examined by counsel for the second named appellant it was never suggested to him that he was incorrect. Moreover, there was no cross-examination of Garda Rice on behalf of the first named appellant.
106. The Court is not satisfied in the circumstances that there was any usurpation of the jury’s function, or any risk of injustice on account of the jury having been made aware of Garda Rice’s view of the inferences to be drawn from the observable facts as recorded on the CCTV footage.
The complaint in relation to the Ballistics evidence
107. The specific evidence complained of is that of Detective Garda Jeanette O’Neill on day 10, where the following exchange took place before the jury:
“Q. Now, you were saying it's dangerous, a sawn-off shotgun in terms of discharging it; why is that?
A. A number of things, Judge, a full length shotgun is designed to act in a specific way. A sawn-off shotgun doesn't act the way a full length shotgun does. The difficulty with them is if they're not held on tightly and properly, Judge.
A. A number of things will happen, but one of the most evident things is as you pull the trigger, the gun kicks back and forward with the recoil, if you understand me, Judge. And the problem is
Q. Well, what causes that?
A. The recoil of the weapon, the amount of energy that throws the gun back and forward.
A. Now, the difficulty is if you don't hold it tightly, Judge, there's a what happens is the gun comes back and the web of your hand will get caught underneath the opening lever, as I have explained earlier. And the web then gets caught underneath the opening lever and as the gun comes back, it pulls the skin back, Judge.
Q. So where in the hand would that happen?
A. It's just here on the web between the thumb and the index finger, Judge.
Q. All right, has that ever actually happened yourself?
A. A number of times, Judge, unfortunately.
Q. Yes, all right, and clearly that's not the only way you could get that kind of an injury to your hand. But that's
A. Oh no, there's other ways, Judge.”
108. The witness’s statement of intended evidence as contained in the Book of Evidence had stated:
“On Saturday the 15th January 2011 I received a query re injuries to a hand. I met with Detective Inspector Joseph Crowe NBCI at the Ballistics Section, where I received six A4 coloured printouts/photographs on an unlabelled CD.
Having viewed the printed photographs and the photographs on the CD supplied, which depicted what appeared to be an injury to the web of the right hand between the thumb and index finger of a male, I was invited to make comment regarding the possible cause of such injury.
“Having been a Senior Firearms Examiner for eight years, I am aware that such injuries can occur from the discharging of a shotgun or more especially a sawn-off shotgun and I personally have in the past suffered such an injury. This type of injury can occur as a result of the break open lever on a shotgun being thrust rearwards violently during discharge, when the weapon is held inappropriately or loosely at the slim part of the stock. However, I cannot exclude this injury being caused by any other means”.
109. The first complaint made is that the enquiry into whether a hand injury could be caused in the course of discharging a sawn-off shot gun had been “prompted” by photographs of an injury to the hand of the second named appellant seized in the course of an unlawful search, i.e., a search on foot of a warrant obtained pursuant to s.29 of the Offences Against the State Act, 1939 and that would have fallen foul of the ruling of the Supreme Court in Damache v The Director of Public Prosecutions  IESC 11. The argument advanced was that the evidence of Detective Garda O’Neill, being based as it was on an enquiry that had been “prompted” by illegally seized photographs, was tainted as fruit of a poisoned tree and ought to have been ruled inadmissible and not adduced.
110. The second argument was that the evidence of Detective Garda O’Neill had significant prejudicial value and very limited probative value. It was submitted that her evidence went no further then saying that a person using a sawn-off shotgun could suffer an injury to the web of the right hand in the area of the thumb and index finger and no opinion was presented to the court and jury as to whether the actual injury suffered by the second named appellant was consistent with such an accident. There had been evidence from a prior witness that the injury suffered by the second named appellant was a paper cut and no evidence had been led by the prosecution to say that the type of injury that would be suffered by somebody using a sawn-off shotgun would be of this nature.
111. In the court’s view the first argument is unstateable, quite apart from any implications arising from the judgments in The People (Director of Public Prosecutions) v J.C. IESC 31 (Unreported, Supreme Court, 15th April, 2015), simply on account of the fact that no evidence seized in the course of the impugned search was ever used at the trial in this case, and Detective Garda O’Neill made no reference before the jury to any photographs, or to any injury alleged to have been suffered by the second named appellant. This Court is satisfied that where no unconstitutionally obtained evidence was adduced, no question of any taint arises in so far as the evidence given by Detective Garda O’Neill is concerned.
112. The Court is also satisfied to reject the argument that the prejudicial effect of the evidence outweighed its probative value, and that it ought to have been excluded on that account. There was independent evidence of a potential injury to the second named appellant’s hand, namely the evidence of his mother Veronica Stewart. In the circumstances, the evidence of Detective Garda O’Neill was relevant and probative, and there was no basis for excluding it. While Veronica Stewart had admittedly sought to characterise it as a paper cut, she did not claim to have seen the injury being sustained. It was a matter for the jury to assess her evidence and attach such weight to it as they thought fit.
113. This Court is not disposed to uphold any of the grounds of appeal advanced by either appellant, and in the circumstances both appeals are dismissed.