Director of Public Prosecutions v McHugh

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Charleton J,Burns J,MacGrath J
• Judgment Date: 04 July 2024
• Neutral Citation: [2024] IECA 176
• Docket Number: Court of Appeal Criminal number: 111/2024

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

and

Brian McHugh

Accused/Respondent

[2024] IECA 176

Charleton J

Burns J

MacGrath J

Court of Appeal Criminal number: 111/2024

Central Criminal Court bill number: CCDP 51/2023

An Chúirt Achomhairc

The Court of Appeal

NO REDCATION NEEDED

Judgment of the Court delivered on Thursday 4 July 2024

1 This judgment concerns the legal basis for the exclusion by a judge of identification evidence in a criminal trial. Identification of a suspect, whereby a witness testifies that they saw him or her either committing a crime, or close in time and proximity to the scene of a crime, or a chain of events leading to or from a crime, thereby potentially linking that person directly or by inference to the commission of a crime, is a question of fact. Identification is not a question of law. Hence, the circumstances whereby identification evidence becomes so infirm as to legally enable its exclusion from the consideration of a jury, are extremely rare. Jury trial, whereby citizens sworn to the task of deciding if the prosecution have proven a charge against an accused, find facts, is the forum mandated for serious criminal cases by Article 38.5 of the Constitution. Respect for that constitutional arrangement informs the entire of the law of evidence.

Form of appeal

2 The form of this appeal is under s 7 of the Criminal Procedure Act 2021. That legislation, whether it was necessary at common law or not, provides at s 6 for a preliminary hearing, one prior to the swearing in of a jury to try the accused. Thereby, issues as to the admissibility of evidence may be ruled in advance of a trial date by either the same judge who would ultimately preside at the trial of the accused before a jury, or a different judge. Such rulings bind the trial court. None of the provisions of the 2021 Act, however, change the law of evidence. Nor is the legislation enabling of applications to examine witnesses on issues of fact in advance of trial whereby a dry run as to their testimony might take place to ascertain potential strengths or weakness as to their assertions. The rules of evidence remain unchanged by the procedure. That includes the rules as to when a voir dire, a trial-within-a-trial whereby it is necessary for a judge to hear evidence in order to ascertain if it is admissible, may appropriately take place. Nothing in the 2021 Act enables issues of fact for a jury to be transmogrified into issue of law requiring the ruling of a judge in advance of trial. The purpose of the legislation was to facilitate issues requiring judicial ruling to be decided in advance of the participation of a jury in a criminal trial. Thereby such matters as the admissibility of confession evidence and the admissibility of illegally obtained evidence might be decided so that the hearing before the jury, as tribunal of fact, might not be interrupted for substantial periods.

3 Appeals to the Court of Appeal during the currency of a criminal trial are not permitted. Since, however, preliminary hearings take place in advance of actual trial, and may result in the exclusion of legally admissible evidence, s 7 mandates a right of appeal where a judge “makes a relevant order at a preliminary trial hearing to the effect that evidence shall not be admitted at the trial of the offence”. Where that happens, “the prosecution may … appeal the order” provided the order excluding the evidence is made “erroneously” and results in the jury not hearing “evidence which is (a) reliable, (b) of significant probative value, and (c) such that when taken together with the relevant evidence proposed to be adduced in the proceedings … that court, might reasonably be satisfied beyond a reasonable doubt of the accused's guilt in respect of the offence concerned.”

4 Since this is such an appeal, one as to the exclusion of evidence by way of preliminary ruling as to admissibility of evidence at trial, decision of Greally J in the Central Criminal Court, 19 March 2024, what is herein said must be guarded. References to fact are of necessity preliminary, better stated in general than precise terms and, as such, are as to what assertions of fact the prosecution may put before a jury. It is the jury whose responsibility alone it is to accept or reject any fact.

Background

5 The accused is charged that he murdered Lisa Thompson at her home in Ballymun, Dublin 11, on 9 May 2022. An acquaintance of the accused, Deirdre Arnold, is charged with assisting an offender. The victim met her death, the prosecution allege, through strangulation and it is sought to identify a curtain cord at the deceased's home as the murder weapon and as being of evidential significance. The last witness for the prosecution to see the victim alive was an acquaintance who left her house after a social call at about 12h30 on the same day as the body of the victim was later discovered at around 15h15 by another witness. Banging was heard in the vicinity of the victim's house at about 02h20 and a neighbour looking out a window saw a man placing bags in a vehicle.

6 Since there is no direct evidence of the accused killing the victim, the case which the prosecution hope to build is based on circumstance. It is not appropriate here, in advance of the trial by jury and where this judgment requires to be published, to detail any of that potential evidence beyond what is essential. The prosecution propose to prove that at a particular time in that early morning, the victim activated her mobile phone. Video evidence which the prosecution assert is from? around the time of death, and which this Court has seen, purports to show a particular vehicle approaching the neighbourhood where the victim resided and a man, which the prosecution propose to identify as the accused, visible on CCTV in that vicinity as he walks past the camera. One of the arguments at the preliminary hearing before the trial judge was that the quality of this evidence was poor. It is a matter for the jury as to the quality of the image; suffice to note that it is not so poor as to enable its exclusion. The prosecution then seek to track what is asserted to be a relevant vehicle and its two occupants through other CCTV images and included in that is what is asserted to be the accused availing of a service station near Dublin Airport. This latter footage may or may not be contested at trial, that is a matter for the accused, but it is less proximate to the offence and the arrival of a car at a service station might require a particular context to admit of a sinister interpretation.

Ruling excluding the identification

7 Hence, the focus is on the proposal of the prosecution to identify the male near the victim's house at a time asserted to be proximate to the murder. Two members of An Garda Síochána testified before the trial judge that this person captured by video image is the accused; these are Sergeant Michael Harkin and Detective Garda Cathal Connolly. That evidence was excluded from consideration of the jury by the trial judge based on an inventive argument that members of police forces identifying suspects had to be independent of the investigation and that the non-immediate, and non-specific as to the moment in viewing that led to recognition, manner in which one purported to identify the suspect as the accused, together with the difficulty in cross-examining such witnesses as to their prior acquaintance with him, created unfairness. No aspect of that argument has any basis in law. The trial judge excluded the purported identification from the consideration of the jury, ruling it inadmissible thus:

69. The objections are based on a lack of independence in each case and also on the basis that, to differing degrees, Sergeant Harkin and Garda Connolly were involved in the investigation and knew Brian McHugh to be a person of interest. Sergeant Harkin was one of the officers tasked with conducting the inference interview with he accused on the 12 of July 2022. It is evident from the content of the interview that Sergeant Harkin was centrally involved in the investigation and therefore was acquainted with many important aspects of the evidence implicating Brian McHugh. Sergeant Harkin was not a suitable candidate for the provision of recognition evidence. In addition, Sergeant Harkin acknowledged in his evidence that he was unable to pinpoint when or from which piece of CCTV footage he ultimately made his recognition. His evidence on this point is vague and unsatisfactory. The combination of these factors and the prejudice which would arise in seeking to test his recognition necessitate the exclusion of his evidence identifying the accused as the person in the footage.

70. The evidence of Garda Connolly suffers from the same infirmities but to a lesser degree. Garda Connolly had prior knowledge of Brian McHugh. He was no longer attached to Ballymun Garda Station but as a member of the Airport Gardai Station he was part of the investigation into the murder of Lisa Thompson and had taken a statement from Sharon Mulcahy. He accepted in evidence that he was aware before he made his identification at Clontarf Garda Station on the 15 of May 2022 that Brian McHugh was a person of interest.

71. The procedure which was put in place by D/Inspector Maguire was a carefully crafted exercise to address some of the difficulties which arise in trials involving Garda recognition evidence. The procedure adopted is not standard or even recommended garda procedure, but I consider the steps taken by Inspector Maguire were a commendable attempt to conduct and record a procedure which would stand up to scrutiny. However, Garda Connolly was not a wise choice of candidate to conduct the exercise in circumstances where he had knowledge of the investigation and knew Brian McHugh to be a person of interest. Because he was stationed...