Director of Public Prosecutions v Akinlade

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 14 March 2024
• Neutral Citation: [2024] IECA 122
• Docket Number: Record Number: 0146/2022

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Victor Akinlade

Appellant

[2024] IECA 122

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Record Number: 0146/2022

Bill Number: DUDP 566/2019A

THE COURT OF APPEAL

No Redactions Needed

JUDGMENT of the Court delivered on the 14 ^th day of March 2024 by Ms. Justice Ní Raifeartaigh

Nature of the case

1 . This is an appeal against conviction in circumstances where the appellant was convicted of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994, assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, and production of an article in the course of a dispute contrary to section 11 of the Firearms and Offensive Weapons Act 1990. There are two main issues in the appeal. The first is whether the trial judge should have made a decision as to whether the Garda entry into a dwelling was lawful so that the appellant could then have relied on this as being the objective legal position in his closing speech to the jury. The second is whether the trial judge erred in the manner in which she dealt with an issue which arose in relation to the physical composition of a baseball bat (which was accepted by the appellant as having been produced by him), namely whether it was made of metal or wood.

2 . The trial took place in the Circuit Criminal Court in May 2022 and the jury returned a unanimous verdict of guilty on all three counts. The appellant was tried with a co-accused, one Mr. T who was charged (and convicted) with a different offence arising out of the same incident, namely issuing a threat.

Background/evidence

3 . The relevant events took place on the evening of the 28 ^th April 2018 in the area of Ballyogan Avenue in Carrickmines, Dublin 18. At 7:15pm on that date, two plainclothes Gardaí, Garda Ryan and Garda Ennis, were on duty in an unmarked patrol car when they observed Mr T exiting premises at Ballyogan Avenue. They decided to search him and planned to intercept him as he walked along a public footpath. Garda Ryan exited the vehicle and immediately deployed his baton, identified himself and told Mr T that he was going to be searched under the Misuse of Drugs Act. Mr T stopped briefly and then took off running in the direction of Ballyogan Avenue. Garda Ryan said that while Mr T was running away from him, he shouted “Gardaí, stop, you're under arrest”. With Garda Ryan in pursuit, Mr T jumped over a small side wall into number 46 Ballyogan Avenue and banged on the front door to gain entry. This was the home of the appellant.

4 . Garda Ryan followed him over the wall into the front garden, losing his left shoe and stumbling on rubble on the other side of the wall in the process. Mr T shouted “you can't be in here, you can't come in here”. What happened precisely at the front door of the house was the subject of some dispute at the trial. It is clear that the front door of the premises was opened to the extent of enabling Mr T to enter the house. It also seems that Garda Ryan tried to prevent him from doing so by grabbing hold of him by the hood or collar briefly but Mr. T managed to get inside. It is also clear that Garda Ryan applied force of some kind to the door as a result of which the glass panel on it shattered. It seems one of the appellant's sons was just inside the door at this stage. The appellant's version of events (as given later to the Gardaí in interview and by way of a statement) was that he was at the back of the house when he heard a bang and he came instantly to the front of the house, that his son said, “look what they've done to my face”, and the appellant saw blood on his son's face and a nasty looking cut to his left cheek. Garda Ryan's evidence was that he persistently identified himself as a Garda, and that he shouted that the appellant was under arrest, but the appellant's version of events was that he did not know Garda Ryan was a Garda because he never said so, and that Garda Ryan was dressed in such a way that he thought he was a “junkie” or a “traveller”.

5 . Garda Ryan's evidence was that he turned from the house and went to retrieve his shoe. When he turned, he saw two males leaving the property and coming towards him, one of them saying “you can't be in here, get the fuck out”. It later transpired they were two of the appellant's sons. Garda Ryan gave evidence that the appellant came to the front door armed with the metal baseball bat; the appellant's version was that he retrieved a baseball bat from the garden. Garda Ryan said that he shouted at the appellant “Gardaí! Gardaí! Return to the house” but that instead the appellant came towards him and swung the bat, striking his left shoulder. Garda Ryan said he began to retreat back over the wall and stumbled backwards while trying to cross over it. The appellant's version of events was that he did not strike Garda Ryan with the bat, whether inside the garden of the house or outside of it.

6 . Garda Ryan said that he felt relief when he was outside the garden and reached the green area outside the appellant's property because it was a public place. However, he said, the appellant's sons and the appellant followed him into the green area and the appellant struck him across his left shoulder and upper arm, and he blocked two further swipes from the bat with his baton. A further swing struck him in the left hand and left ear, he said.

7 . Garda Ennis came on the scene and saw the three males in front of Garda Ryan. Garda Ennis went into the melee and placed herself between her colleague and the three males and deployed her pepper spray. She said she was being called names and jostled. There was shouting from members of the Akinlade family and two females who were now present in the garden. Other Gardaí who arrived on the scene described it as chaotic and several members of the Gardaí mentioned that some members of the Akinlade family were shouting abuse to the extent that they were foaming at the mouth. The appellant's case was that at no stage throughout the incident did he know that Garda Ryan was a Garda and that as far as he was concerned, some unknown person was trying to break into his house, had smashed the door glass and injured his son, and that his action in wielding the baseball bat was to frighten him off. He persistently maintained that he did not strike the appellant. It was suggested by his counsel during the trial that the injuries sustained by Garda Ryan, which included concussion, a fractured clavicle, a fractured finger, and a bruise to his left arm, were self-inflicted by his attempting to force the door and later tripping over the wall.

8 . During his evidence, Garda Ryan maintained both that he had already arrested Mr. T at the time the latter disappeared into the house, and that he sought to enter the house pursuant to s.6 of the Criminal Law Act 1997 for the purpose of effecting his arrest. In the course of submissions (which will be addressed below), counsel submitted to the trial judge that none of the conditions existed for the exercise of the power to gain entry without warrant under s.6 of the 1997 Act. In particular, he said that the offence which Garda Ryan had identified as the one for which he wanted to arrest Mr. T was a summary offence (obstruction of a drugs search) which did not fall within the power in s.6. It is important to note that there was no legal issue as such at the trial as to whether or not Mr. T (or indeed the appellant) had been lawfully arrested or whether the house had been lawfully entered. The issue arose only to the extent and in the context that will be described below.

9 . There was some lack of clarity at certain points during the appeal and even during the trial itself as to whether the appellant was relying on defence of another/defence of property pursuant to s.18 of the Non-Fatal Offences Against the Person Act 1997. S.18 provides that the use of force by a person does not constitute an offence if it is “such as is reasonable in the circumstances as he or she believes them to be” if it is for the purpose inter alia of protecting a member of his family from injury, or to protect his property from damage caused by a criminal act or from trespass or infringement. S.18 (6) provides that notwithstanding subsection (1), a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has no defence if he or she knows that the force is used against a member of the Garda Síochána acting in the course of the member's duty or a person so assisting such member, unless he or she believes the force to be immediately necessary to prevent harm to himself or herself or another.

10 . In our view, from a reading of the transcript as a whole, it is clear that the appellant was relying on the s.18 defence although the primary focus was on trying to establish certain facts that would support the legal elements of the defence. As noted, the appellant's defence was that he saw his son inside the door of their house with blood on his face, saw an unidentified man outside who had just smashed the glass of the door, and that he picked up a baseball bat in the garden and wielded it to frighten away the person who he honestly believed to be an intruder. He said this was in a context where the garda was not wearing a uniform and had not identified himself as a Garda, and in circumstances where his house had previously been the subject of attacks from random individuals. It is fair to say that defence counsel for both accused also sought at the trial to portray Garda Ryan in general as having escalated the situation by unnecessarily drawing his police baton from the very outset and by giving aggressive chase to Mr. T, culminating in his smashing in of the appellant's front door causing facial injuries to one of the appellant's sons....