Determination Template
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | Clarke C.J.,MacMenamin I.,Irvine J. |
| Judgment Date | 01 August 2019 |
| Neutral Citation | [2019] IESCDET 188 |
| Docket Number | Supreme Court record no: S:AP:IE:2019:000086 |
| Date | 01 August 2019 |
[2019] IESCDET 188
THE SUPREME COURT
DETERMINATION
Clarke C.J.
MacMenamin I.
Irvine J.
Supreme Court record no: S:AP:IE:2019:000086
Court of Appeal record no: 2018 No. 217
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 29 th March. 2019 |
| DATE OF ORDER: 29 th March. 2019 |
| DATE OF PERFECTION OF ORDER: 10 th April. 2019 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 1 st May. 2019 AND WAS IN TIME. |
This is an application for leave to appeal from a judgment of the Court of Appeal (Birmingham P; McCarthy and Kennedy JJ.), dated the 29 th March. 2019 ( [2019] IECA 94). The order of the Court of Appeal was made on the same date, and was perfected on the 10 th April, 2019.
The principles applied in deciding whether or not to grant leave to appeal having regard to the criteria incorporated into the Constitution under the 33 rd Amendment have been considered in many determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.
On the 26 th October, 2017, the applicant was convicted in Naas Circuit Court for the offence of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 (para. 1 of the judgment of the Court of Appeal). He was sentenced to three years’ imprisonment with 18 months suspended. The applicant appealed his conviction to the Court of Appeal, and in a judgment of the Court, delivered by Kennedy J., this appeal was dismissed.
In the Circuit Court, the victim, applicant's ex-wife, gave evidence that she was able to identify her assailant as the applicant by his voice when the stated, “It's just because I miss you so much” (para. 2).
In the Court of Appeal, six grounds of appeal were unsuccessfully raised. Of relevance to the present application, it was submitted that, on the three grounds set out below, the trial judge erred. These were that:
i. by refusing to withdraw the case from the jury, on the application on counsel on the conclusion of the State's case;
ii. by holding in fact and law that the voice identification evidence given by the injured party was supported by other evidence; and
iii. by holding in law that hearsay accounts of the injured party having identified the applicant as her assailant amounted to evidence of identification.
The applicant argues that three issues of general public importance arise in this case:
i. Whether An Garda Síochána bear a greater duty to “seek out and preserve” evidence where the evidence in a case is sparse generally;
ii. Whether voice recognition evidence should be admitted in criminal trials in the absence of any guidelines or procedures, such as exists in the United Kingdom: and
iii. The correct test to be applied by a trial judge when determining an application to dismiss a criminal charge on “Braddish” grounds, at the close of the prosecution case.
The applicant submits that he has maintained his innocence from the outset, that he has no previous convictions and that...
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