Director of Public Prosecutions v Pascal Kelly

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 31 October 2023
• Neutral Citation: [2023] IECA 285
• Docket Number: Record No 57/2019

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Pascal Kelly

Appellant

[2023] IECA 285

Edwards J.

McCarthy J.

Kennedy J.

Record No 57/2019

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 31st of October 2023.

Introduction

1 . On the 7 ^th of December 2018 the appellant was convicted, following a lengthy trial, by unanimous verdicts of a jury in the Dublin Circuit Criminal Court, of seven offences on Bill No DUDP0117/2017, comprising: one count of burglary, contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (i.e. “the Act of 2001”) (being count no. 1.); one count of robbery, contrary to s. 14 of the Act of 2001 (being count no. 2); one count of making threats, contrary to s. 5 of the Non-Fatal Offences against the Person Act 1997 (i.e. “the Act of 1997”) (being count no. 3); three counts of false imprisonment, contrary to s. 15 of the Act of 1997 (being counts nos. 4, 5, and 6, respectively) and a count of taking a vehicle without authority, contrary to s. 112 of the Road Traffic Act 1961, as amended by s. 65 of the Road Traffic Act 1968, and as amended by s. 18 of the Road Traffic Act 2006. The offences in question were committed in the context of what is colloquially known as a “ tiger kidnapping”.

2 . On the 1 ^st of February 2019 the appellant was sentenced to 11 years and 6 months' imprisonment for the burglary offence; to 14 years' imprisonment for the robbery offence; to 7 years and 6 months' imprisonment for the offence of making threats; to 18 years' imprisonment on each of the false imprisonment counts, and; to 3 years and 6 months' imprisonment for the offence of taking a vehicle without authority. All sentences were to date from the date of sentencing (subject to credit being given for any time served by the appellant on remand exclusively in connection with the offences on Bill No. DUDP117/2017) and were to run concurrently.

3 . The appellant has now appealed both against his said convictions and the severity of the sentences he received in connection therewith. This judgment deals solely with his appeal against his said convictions.

Evidence as to the Central Events Adduced Before the Jury

4 . The jury heard evidence from a Ms. L who in September of 2014 lived at an address in North County Dublin with her two daughters, E and S. At that time, the witness was the postmaster at Bayside post office, and she was helped in that role by her daughters who worked part-time in the post office. On the morning of the 24 ^th of September 2014 the witness left her home at 8:00am, dropped her daughter S to a nearby train station, then stopped for coffee and from there proceeded to work, arriving at the post office at approximately 8:40am. Thereafter, it was a quiet morning in the post office and most of the people attending there that day were regular customers. She then met her daughter E for lunch, and shortly after she had returned to the post office a G4 security van arrived with a cash delivery, which she signed for and placed in a safe on the premises in accordance with standard procedure.

5 . Ms. L's daughter, E, was working with her that afternoon. At about 4:20pm Ms. L noticed two people walking by the post office. She later described those people as wearing shiny black jackets and to have been in their late thirties or in their forties.

6 . At about 6:10pm she locked up for the evening. Her daughter E had left before her. At close of business, there was cash to the approximate value of €90,000 on the premises, some of which was in U.S. dollars. Ms. L put the lock on the safe and separated the safe keys (which was a required security procedure). She then set the alarm, locked the door and pulled down the shutter.

7 . After Ms. L had left the post office she attended a social engagement and did not return home until about 10:30pm, stopping on the way home to purchase some milk at a Spar shop in response to text received from her daughter E requesting her to do so. As she was driving home, she noticed a car driving behind her but when she turned the corner to go into her estate it drove straight on. She was not concerned by this and proceeded to her home. Her daughter's car, a Nissan Micra, was in the driveway when she arrived. Ms. L had an Italian student saying at home at the time, and the light was on in the student's bedroom as she approached the house. On entering the house she found that her daughter E was still up, and they had tea in the kitchen and were talking for between half an hour and three quarters of an hour and then she went to bed. Ms. L locked up the house before she went to bed.

8 . Having gone to bed, Ms. L was sleeping lightly when she was disturbed by a scream from her daughter. She could hear men's voices saying, “ Where's your mom?”. Ms. L picked up the phone on her locker and immediately rang a special “ tiger aid” hotline number provided to her by An Post to be used in the event of a “ tiger” incident. Having dialled the number, she immediately slid the phone under the covers. She was unaware if anybody had answered. At that point a man appeared in her bedroom. He was dressed in black and was around five or 10, with blue eyes, grey sideburns and a wide face. He shouted at her, “ Did you make a call?”, “ Did you make a call?”, “ Where's your phone?”. Ms L said “ No”, and then handed him the phone, before getting up and standing beside her bed.

9 . At that point another man entered the room, accompanied by Ms. L's daughter E and the Italian student. This man approached Ms. L and placed duct tape across her mouth. As he was attempting to do so, she pleaded with him not to, as she had asthma and feared that she would be unable to breathe. In response, he asked her where her inhaler was and, having been told of its whereabouts, he fetched it from her handbag. This man then put trousers on Ms. L, and helped her to put her boots on, before binding her hands with cable ties at the front. Ms. L was deeply concerned for her daughter and for the Italian student, as well as for her own safety. During the incident Ms. L observed a small handgun on the bed.

10 . The first man was anxious to get everybody out of the house because E was screaming so much. The raiders brought their captives downstairs and demanded the keys of Ms. L's car, and the keys of the post office. Ms. L was told to bring a jumper to put over her head so that she would not see where they were going. She was placed in the back seat of her own car, behind the passenger seat. The two girls were then brought out and placed beside in the back seat, with her daughter E closest to the window on the other side. The car was locked with central locking and the two men sat in the front seats of the vehicle. The first man she had encountered was driving and the second man was in the passenger seat. The vehicle then reversed out of the drive and proceeded out of the estate. At this point Ms. L had the jumper over her head. She also had tape placed over her eyes by the second man, but it did not fully cover her eyes and she could still partially see.

11 . The first man was on the phone as they drove along, and the raiders were described by Ms. L as being agitated because they were due to meet someone else and, apparently, that person had got lost. She heard him being instructed to flash his lights if he was approaching them. Lights were flashed and then Ms. L's own phone rang. This prompted an angry reaction from the first man, who accused Ms. L of having made a call even though she had denied it in the bedroom. He said that he was going to shoot her if she had made a call.

12 . After the other car had flashed them, the raiders turned their vehicle around and it proceeded for a while before eventually stopping, as did the other car. The second man then walked across the road and approached the other car. The second man then got back into Ms. L's car and both cars then took off again and drove for some further time before stopping again. On this occasion both raiders got out of the car and appeared to be talking. With that, a third man then got into Ms. L's car and he said, “ I heard yous made a call”, to which Ms. L responded, “ No”. She had no idea where they were at that stage, other than that they had been going in the general direction of Donabate.

13 . The third man said that the other two men were angry because they thought Ms. L had made a call. They then came back to the car and removed Ms. L from the car. The second raider was guiding Ms. L. It was pitch black and she did not know where they were going. She was brought to the other car and placed inside it. Once inside the car, she was questioned about the post office, about the alarm, about the codes for the alarm, about how much money was on the premises and other such matters. The questions were asked by the first raider. In the course of his questioning he repeatedly threatened to shoot Ms. L. After 15 or 20 minutes, Ms. L was returned to her own car. The occupants were then informed by the raiders, “ Right were going over to the post office now”. Ms. L was then brought back to the second car, and both cars moved off.

14 . As they were driving along Ms. L said to the raiders, “ You know the safe won't open until 8 o'clock”. The first raider then jammed on the brakes and appeared really angry. He turned around in his seat and started punching Ms. L, saying “ You're lying. You lied about the call and you're lying about this now”, in response to which Ms. L said, “ No, I'm not.”. The first raider then said he was going to break E's arm, pour petrol over the car and kill them all. At this Ms. L became very upset, and the second raider intervened to say, “ That's enough, that's enough.” Ms. L was then brought back to her own car and was allowed to re-join her daughter and the student. The...