D.P.P.-v- Owen Reid & Christopher Kirwan, [2004] IECCA 3 (2004)

Docket Number:109/01 & 110/01
Judge:Hardiman J.

THE COURT OF CRIMINAL APPEALHardiman J. 110/01 & 109/01Lavan J.de Valera J.Between:-OWEN REID ApplicantandTHE DIRECTOR OF PUBLIC PROSECUTIONS ProsecutorandCHRISTOPHER KIRWAN ApplicantandTHE DIRECTOR OF PUBLIC PROSECUTIONS ProsecutorJUDGMENT of the Court delivered by Mr. Justice Hardiman on the 12th day of February, 2004.Each applicant seeks leave to appeal against his conviction on a charge of affray contrary to s.16 of the Criminal Justice (Public Order) Act, 1994.It appears that applicants were jointly tried on this charge before the Dublin Circuit Criminal Court (His Honour Judge Lynch and a jury) between the 28th March, 2001 and the 3rd April, 2001. Each applicant was also charged with assault: Owen Reid was charged with assault on a peace officer, Garda Mark Dempsey, contrary to s.19 of the Criminal Justice (Public Order) Act, 1994. Christopher Kirwan was charged with assault on a different peace officer, Garda Mark Benson, contrary to the same Section. Each of the applicants was acquitted on the charge of assaulting a peace officer.The offences were all alleged to have occurred at Georges Place, Dublin 1 immediately beside St. George's Church which was then in use as the "Tivoli Theatre", on the 13th December, 1999.Grounds of appeal.Each applicant advanced a number of grounds of appeal. It is, however, convenient to deal first with grounds which raise a number of points in common. These contentions may be summarised as being: that the learned trial judge should have withdrawn the count of affray from the jury when requested to do so by counsel for the applicants; that the convictions of the count of affray are inconsistent with the acquittals on the assault counts; that the learned trial judge ought to have instructed the jury that, if the accused were acquitted on the assault charges, there was no case against them for affray; and that the convictions were perverse.The evidence.The evidence disclosed that the Gardaí were called to the area of St. George's Church, where, apparently, a crowd coming out of that building had become disorderly. It appears that as a number of gardaí, including a Garda Murray, approached the disorderly group, his attention was drawn to another and separate group which had become disorderly and apparently included the accused Mr. Kirwan. A Garda Benson alleged that this group of people fighting consisted of "at least four people, definitely two, but at least four" (sic). He said that one of these was Mr. Kirwan. He said he attempted to arrest him and he violently resisted in a manner described graphically by the guard in evidence. Thisinteraction with the guard was the basis of the charge of assault: the previous fighting alleged by the same guard was the basis of the chargeof affray.In relation to Mr. Reid, Garda Dempsey gave evidence that when he came on the scene he saw Garda Benson who was attempting to arrest a man who must, on the evidence, have been Mr. Kirwan. He says that as he went to assist him he was kicked and otherwise obstructed by Mr. Reid. This kicking and obstruction is the basis of the charge of assault against Mr. Reid. The basis for the charge of affray relates to a slightly earlier time and is based on the evidence of a Garda Murray.Although a considerable number of witnesses were called at the trial, evidence tending to implicate the accused was identified with precision on both sides in the course of an application for a direction at the end of the prosecution evidence.The direction application.At the trial, counsel for each accused conceded that his client had a case to answer on the assault charge. The...

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