Director of Public Prosecutions v Byrne

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 23 July 2024
• Neutral Citation: [2024] IECA 218
• Court: Court of Appeal (Ireland)
• Docket Number: Bill No. SCDP0016/2020

Between/

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

Respondent

and

Trevor Byrne

Appellant

[2024] IECA 218

Edwards J.

McCarthy J.

Kennedy J.

Bill No. SCDP0016/2020

Record No: 170/2021

THE COURT OF APPEAL

Conviction – Robbery – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether evidence was admissible

Facts: The appellant, Mr Byrne, on 20 May 2021, was found guilty by the Special Criminal Court of the following offences: (i) one count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001; (ii) one count of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997; (iii) one count of threatening to kill contrary to s. 5 of the 1997 Act; (iv) one count of carrying a firearm with intent to commit an indictable offence contrary to s. 27B of the Firearms Act 1964; and (v) one count of unlawful seizure of a vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976. By notice of appeal dated 27 August 2021, he appealed to the Court of Appeal against his conviction on the ground that the trial court erred in fact and in law by admitting the evidence of identification of the appellant by D/Garda McDonagh in circumstances where the manner in which the footage was shown to the witness created a real risk both of prejudice to the appellant and of error.

Held by the Court that the recognition evidence of Detective Garda McDonagh was properly admitted on the basis that it was relevant and probative. The Court held that the correct approach, which was followed by the court below, was that commended in McGrath on Evidence (3rd edn, Round Hall 2020). The Court found that the approach of the court of trial was impeccable; they were correct in law and their findings as to fact were findings that were legitimately open to them on the evidence. The Court noted that the criticisms made by the defence as to the procedures utilised for the purpose of obtaining the recognition evidence of D/Garda McDonagh, and the lack of safeguards pointed to, were acknowledged, and were taken into account by the court of trial in considering the weight to attach to that witness’s evidence. The Court noted that the court below considered the dangers associated with recognition evidence and cautioned itself in regard to such evidence; it considered the implications of the criticisms that had been made, and in particular those arising from the lack of contemporaneous notes, and it concluded that it could nonetheless safely consider the recognition evidence in light of the CCTV evidence also available. The Court held that this was consistent with the approach taken by the Court in People (DPP) v Tynan [2017] IECA 202 and other cases where a distinction had been drawn between identification evidence and recognition evidence, and guidance had been provided as to how the latter may be approached in circumstances where the trier of fact may have available to them high quality CCTV footage and/or stills that could be utilised as tools in assessing the reliability of the identifying witness. The Court held that the Special Criminal Court, in its role as a trier of fact, had available to it high quality CCTV footage and stills to assist it in assessing the reliability of the recognition evidence proffered by D/Garda McDonagh.

The Court held that, in the absence of any error of principle on the part of the court of trial having been demonstrated, the appellant’s trial was satisfactory and his conviction was safe. The Court dismissed the appeal.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of the Court delivered by Mr. Justice Edwards on 23rd of July 2024.

Introduction

1 On the 20th of May 2021, Mr. Trevor Byrne (i.e, “the appellant”) was found guilty by the Special Criminal Court of the following offences:

• (i) one count (count no. 1) of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001 (i.e., “the Act of 2001”);

• (ii) one count (count no. 2) of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997 (i.e., “the Act of 1997”);

• (iii) one count (count no. 3) of threatening to kill contrary to s. 5 of the Act of 1997;

• (iv) one count (count no. 4) of carrying a firearm with intent to commit an indictable offence contrary to s. 27B of the Firearms Act 1964 (i.e., “the Act of 1964”), as substituted by s. 60 of the Criminal Justice Act 2006 as amended by s. 39 of the Criminal Justice Act 2007, and;

• (v) one count (count no. 5) of unlawful seizure of a vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976 (i.e., “the Act of 1976”).

2 Having been convicted by the Special Criminal Court of the foregoing offences, the appellant was duly sentenced on the 29th of July 2021 to concurrent terms of imprisonment of varying lengths, but effectively amounting to an aggregate carceral term of 8 ¹/₂ years, which said sentences were to date from the lawful expiration of a sentence the appellant was serving arising out of a separate matter imposed on the 21st of December 2020.

3 The appellant, by Notice of Appeal dated the 27th of August 2021, has appealed against both his conviction and the severity of his sentence. The present judgment deals with the conviction module of his appeal. In respect of his appeal against conviction, the appellant originally advanced two grounds in his Notice of Appeal. However, prior to the hearing of the appeal we were informed via written submissions filed on behalf of the appellant that he intended pursuing only the following ground:

“1. The learned trial Court erred in fact and in law by admitting the evidence of identification of the Appellant by Detective Garda Patrick McDonagh in circumstances where the manner in which the footage was shown to the witness created a real risk both of prejudice to the Appellant, and of error”.

Factual Background

4 The appellant's trial in the Special Criminal Court ran from the 13th of April 2021 until the 20th of April 2021. Following a month's adjournment, the Special Criminal Court delivered its verdict on the 20th of May 2021 whereupon it found the appellant guilty of the five counts outlined above. In circumstances where the grounds of appeal advanced relate to the admission of a specific strand of evidence, a summary of the prosecution case against the appellant suffices for the purpose of outlining the factual background to the present offending. The Court is in receipt of written submissions filed on behalf of both parties, and from a reading of same certain facts, which we will now summarise, do not appear to be in dispute between the parties.

5 On the 19th of March 2010, the week of the Cheltenham Races, the appellant and a co-accused (who was later acquitted on all counts alleged against him) entered the premises of a BoyleSports bookmakers in the Applewood area of Swords, County Dublin. They proceeded to enter the lavatory of the premises where they remained for approximately 35 minutes before emerging therefrom wearing balaclavas and brandishing a firearm. Present in the bookmakers were eleven persons comprising three members of staff and eight patrons. The assailants threatened the store manager at gunpoint and stole €1,490 from the cash register along with the manager's wallet. During the course of the robbery, one of the raiders dropped a mobile phone which was later attributed to the appellant. CCTV footage covered the events from within the bookmakers. The assailants left through the premises' back door and emerged therefrom onto an alleyway. At that remove, a Ms. Helen Leigh was passing in her vehicle, in front of which the two raiders jumped brandishing what she thought were firearms. They hijacked Ms. Leigh's vehicle and drove off with her inside it. During the course of that journey, at least one of the men threatened that he would kill Ms. Leigh. They drove for approximately fifteen minutes before they let Ms. Leigh out of the vehicle, and the two assailants then drove off. The vehicle was later abandoned in the Finglas area.

The Identification Evidence Issue

6 The appellant's appeal relates to the admission of the evidence of Detective Garda Patrick McDonagh (otherwise, “D/Garda McDonagh”) identifying the appellant as a person depicted in CCTV footage which he was shown. The evidence in question was first the subject of a voir dire on the 14th of April 2021, with legal submissions being made on that date and into the 15th of April 2021. The trial court ruled on admissibility on the 19th of April 2021.

Evidence of D/Garda McDonagh on voir dire

7 D/Garda McDonagh was a member of An Garda Síochána stationed in Finglas Garda Station in 2010. He recalled that on the 6th of April 2010 he had attended at Swords Garda Station having received a phone call to attend there for the purposes of viewing CCTV footage of a robbery that had taken place. D/Garda McDonagh attended at Swords Garda Station in the company of a Detective Garda Eamon Ryan (otherwise “D/Garda Ryan”), and there the two members met a Detective Garda Dave O'Connor (otherwise “D/Garda O'Connor”) and a Garda Daniel Rogers (otherwise “Garda Rogers”). D/Garda McDonagh and D/Garda Ryan went separately into the detective office of the Swords Garda Station wherein they each independently viewed the CCTV footage of a robbery that D/Garda McDonagh was told had taken place the previous March. Present in the detective office with D/Garda McDonagh at the time of viewing the footage were the aforenamed D/Garda O'Connor and Garda Rogers.

8 D/Garda McDonagh stressed that no-one, at the time he viewed the CCTV footage in question, had been nominated as a possible suspect in the offence captured in the footage. He stated that a phone call had been made to Finglas Garda Station (on foot of which he and D/Garda Ryan had made their way to Swords...