Director of Public Prosecutions v Sychulec & Gruchacz
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] IECA 19 |
| Date | 30 January 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [No. 261 of 2016] [No. 186 of 2016] |
[2018] IECA 19
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Edwards J.
Hedigan J.
[No. 261 of 2016]
[No. 186 of 2016]
and
Conviction – Murder – Identification evidence – Appellants seeking to appeal against convictions – Whether trial judge erred in the admission of identification evidence
Facts: The appellants, Mr Sychulec and Mr Gruchacz, on 22nd April, 2016, were both convicted of the murder and false imprisonment of Mr Krupa in Athlone on 20th June, 2014. The appellants appealed to the Court of Appeal against conviction. In the case of Mr Sychulec, the sole ground of appeal related to a contention that the trial judge erred in the admission of identification evidence. Identification evidence was also central to the appeal by Mr Gruchacz. However, in his case there were also subsidiary issues relating to a witness, Mr Jaromin, and the invocation of s. 16 of the Criminal Justice Act 2006.
Held by the Court that, in the circumstances, the trials of Mr Sychulec and Mr Gruchacz were satisfactory and that the verdicts returned were safe. The Court held that, in the circumstances, there was no reason why the jury should not have been permitted to view the CCTV footage and make their own assessment; once they were permitted to do so, it would have been very surprising if they had come to any conclusion other than the one they did, having regard to the quality of the material available.
The Court held that the appeals should be dismissed.
Appeal dismissed.
On 22nd April, 2016, both appellants were convicted of the murder and false imprisonment of Patryk Krupa in Athlone on 20th June, 2014.
The background to the case is that on the evening of 20th June, the deceased who was a young Polish man was walking through Athlone with two friends, Bartek Kurowski and Szymon Rutkowski, on his way to a gym. As they walked along Church Street, a black BMW came on the scene and two persons got out of that vehicle. There was a brief exchange and the deceased then went with those two men in the black BMW. The deceased's two friends were concerned for his wellbeing and started searching for him. On a hunch, they searched the area along the river Shannon under the M60 bridge where they found the deceased floating in the river. The deceased was found to have received serious injuries.
In the case of the first named appellant, Leszek Sychulec, the sole ground of appeal relates to a contention that the trial judge erred in the admission of identification evidence. Identification evidence is also central to the appeal by the second named appellant, Andrzej Gruchacz. However, in his case there are also subsidiary issues relating to a witness Tomsez Jaromin and the invocation of s. 16 of the Criminal Justice Act 2006.
Before dealing with the grounds of appeal, it is appropriate to refer in a little more detail to the facts, to what emerged during the course of the investigation and to what subsequently emerged in evidence. Mr. Kurowski, and Mr. Rutkowski, the deceased's companions, were in a position to give detailed descriptions of the two individuals who had emerged from the car. One of the men was very tall and he was described as being skinny, with dark hair and he spoke Polish. The second man was of a very striking stature, with a very imposing build, he was wearing three-quarter length trousers and his clothes were obviously bloodstained. It was evident that the men knew the deceased and it was of course evident that they were linked to the black BMW. Mr. Rutkowski was able to tell the Gardaí, and indeed subsequently gave evidence, that he saw Szymon Tarkowski and Kuba Zmuda, both of whom were known to him, in the car. The Gardaí were able to locate and arrest Szymon Tarkowski and Kuba Zmuda on 21st June, 2014. Mr. Tarkowski was subsequently charged and pleaded guilty to the offence of false imprisonment, while Mr. Zmuda was a prosecution witness at trial.
The investigation focused on a black BMW ( 06 D 20250). Gardaí harvested a considerable amount of CCTV footage from various locations around the Athlone area which allowed them to follow the movement of the deceased and his companions up to the time that he was abducted from the town centre. The footage also allowed the Gardaí to track the movements of the black BMW ( 06 D 20250) prior to and after the abduction. Part of the footage harvested by Gardaí came from Collins' Service Station on the Roscommon Road. It was apparent from the footage, and from witness statements taken from people who were there, that a minor incident had occurred at the service station in the vicinity of the Supermac's counter inside the premises. The two men who were involved in the incident were Polish and matched the descriptions of the men who had abducted the deceased. Blood was visible on their clothing. It is important to say that the CCTV footage from Collins' Service Station was of an exceptionally high quality and as a result, was central to the subsequent Garda investigation.
The Garda investigation focused to a degree on two other vehicles:
i. A silver coloured Audi A6 estate, registration number 08 C 8052. This car was owned by Tomsez Jaromin. It was borrowed from the owner and was visible on CCTV being parked at the B&Q car park in Athlone. The occupants left the car and returned sometime later. The car was then driven to the Applegreen Service Station which is close to B&Q, again this could be seen on CCTV, as could the fact that an occupant left the car and bought whiskey. The car was next seen at Collins' Service Station where those who appeared to be its occupants were involved in an altercation, after which, it was driven off in the direction of Roscommon. Staff members from the garage made a note of the car registration and this was given to Gardaí.
ii. There was a third vehicle, also a black BMW, registration number 07 D 20106, which featured in the investigation. This car was owned by Marcin Rodziewicz, who regularly allowed the first named appellant to borrow it. There was evidence that the first named appellant drove away in this car after the silver Audi (08 C 8052) was returned to Tomsez Jaromin. This black BMW was found crashed in a ditch near Mountmellick in the early hours of 21st June, 2014. The car was examined and various items located in it. In particular, there was a driver's licence in the car. That licence was in the name of Tomas Stugazw and there were also four passport photographs matching the photo in the licence. One of those passport photos was cut out, given the identification EC1 and was subsequently shown to a number of witnesses. Gardaí identified and tracked down Tomas Stugazw and he was able to confirm that his Polish driving licence had been stolen from him in Dublin city centre in 2013. The document found in the vehicle was authentic except for the fact that the photograph had been changed and was no longer the photograph of Tomas Stugazw.
Gardaí also investigated a particular house at Cloonera, Strokestown, Co. Roscommon, which had been rented to a Polish man who identified himself as Tomas. The estate agent who dealt with the letting produced a copy of the drivers licence that had been given to him for identification purposes and it was identical to the licence in the name of Tomas Stugazw retrieved from crashed vehicle.
The prosecution case was that Leszek Sychulec was the larger of the two men who abducted the deceased from Athlone town centre. He lived in Roscommon and was known in the Athlone area. He frequented Collins' Service Station and the Supermac's outlet there, and he was known to the staff as ‘Taco fries’ because it was his practice to order a large taco fries with extra taco sauce and extra cheese for himself and a small order for his girlfriend.
The appellant raises only one issue which was that the judge erred in admitting identification evidence. The companions of the late Patryk Krupa identified the appellant as one of those involved in the abduction from a still generated from CCTV footage from the Supermac's area of Collins' Service Station on the evening of the murder. It is to be noted that Mr. Sychulec did not challenge the fact that he appeared in the CCTV footage from the service station at trial. Given his very distinctive appearance and the quite exceptional quality of the CCTV footage, this was a realistic approach. However, he did challenge the fact that witnesses to the abduction were permitted to say by reference to the footage that he was one of those involved in the abduction. The appellant refers to the case of DPP v. Rapple [1999] 1 I.L.R.M. 113. There, the court commented:-
‘it seems to the Court that there are two separate and distinct situations in which photographs may be shown to a witness. Firstly, there is the situation where a suspect is being sought. Secondly, there is the situation where there is a suspect and the showing of photographs before a formal identification parade or other means of identification is clearly prejudicial and unfair. In the view of the Court that is a distinction which is a proper one to make. The situation in the present case falls within the first category and the Court can see no objection to the use of the photographs.’
However, the appellant says that the present case falls into the second category as the identification from the CCTV stills occurred at a time after the arrest and charging of the appellant.
In the course of his judgment in The People (Attorney General) v. Mills [1957] 1 I.R. 106, Maguire C.J. approved of the following passage from R. v. Dwyer and Ferguson (1925) 18 Cr. App. R. 145:-
‘The Court has been...
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DPP v Gavin Sheehan
...appellant. DPP v Cooney [1995] 3 IR 205 pertains to a dock identification, DPP v Maguire [1995] 2 IR 286 and DPP v Sychulec & Gruchacz [2018] IECA 19 referred to direct identifications from CCTV footage. None of these are accordingly relevant. We might add that we have not been asked to vie......