Director of Public Prosecutions v Hayes
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] IECA 100 |
| Docket Number | Record Number: 118/2022 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 100
The President.
McCarthy J.
Kennedy J.
Record Number: 118/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 25 th day of April 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 11 th May 2022, the appellant was convicted of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
At approximately 7pm on the 14 th July 2021, the perpetrator entered Fine Wines off-licence in Corbally, Limerick, wearing a mask. He produced a knife and demanded money from the part-time worker at the till who was alone in the shop at the time. A sum of €370 was taken.
Gardaí O'Reilly, O'Leary and McDonagh attended at the scene and viewed CCTV footage of the incident from behind the counter. Gardaí O'Reilly and McDonagh, on viewing the footage, immediately recognised the appellant as the perpetrator.
At approximately 9pm on the same date, Garda O'Reilly was on patrol with Garda McDonagh and observed the appellant herein wearing grey pants and black trainers similar to those worn by the perpetrator in the CCTV footage. He arrested him on suspicion of robbery. An initial search of the appellant's person revealed €180 concealed in his trainers. On the 15 th July 2021, Garda O'Reilly conducted a further search of the appellant's trainers and found €110 concealed therein.
This appeal centres on the recognition evidence of the appellant by two members of An Garda Síochána.
The appellant appeals his conviction on the following grounds:-
“1. That the learned trial judge erred in fact and in law in permitting the Gardaí to give recognition evidence.
2. That the learned trial judge erred in refusing to discharge the jury having regard to the prejudicial evidence by the Garda witnesses.
3. That in all the circumstances the verdict of the jury was unsafe or perverse.”
At the commencement of the trial, an application was made by counsel for the accused to exclude the statements of the three members of An Garda Síochána contained in the book of evidence on the basis that this evidence was prejudicial to the accused and that the prejudicial effect outweighed the probative value. The application was refused and two members of An Garda Síochána were permitted to give the evidence.
It was submitted at trial that the proposed evidence that the Gardaí recognised the appellant through their work as members of An Garda Síochána, implied that the appellant was previously involved in criminal activity.
Reliance is placed on the decision of People (DPP) v Larkin [2008] IECCA 138 in which case, the trial judge admitted recognition evidence from two members of An Garda Síochána where they stated that they had recognised the accused in CCTV footage from their general community policing activity.
Further reliance is placed on People (DPP) v Maguire [1995] 2 IR 286 as follows:-
“In order to lay the foundation for the admission of identification evidence made by a witness on the basis of a review of CCTV, it is necessary for the witness to indicate the capacity and how well they knew the accused and how they can identify the accused.”
It is submitted that the defence counsel's ability to test the Garda witnesses' evidence was much restricted by the fact of their roles as members of the Gardaí attached to the Crime Division and where any rigorous testing could lead to evidence of previous wrongdoing on the part of the appellant.
The following passage from Larkin where Kearns J. (as he then was) refers to the concerns expressed by Barron J. in Maguire:-
“ His concern related more to the circumstances from which the recognition evidence was derived and the possibility that a jury might assume it was from prior criminal behaviour on the part of the accused. In the course of his judgment Barron J. referred to two cases which graphically illustrate the difficulties which can arise. In R v. Fowden & White [1982] Crim. LR 588 evidence was given by a police officer and a security man of identification of the accused with the person shown on the video film. It was held that it should have been excluded on the ground that its prejudicial effect outweighed its probative value since the identifying witnesses knew the accused from a similar shoplifting case a week later and accordingly the defence was deprived from testing the accuracy of the identification without causing prejudice and embarrassment.”
In direct examination, when asked, “ on viewing the CCTV footage, were you able to recognise anybody?” Garda O'Reilly stated as follows:-
A. I was, Judge. On viewing the CCTV, I immediately recognised the person in the CCTV footage responsible for the robbery to be John Hayes.
Q. On what basis did you recognise him?
A. Judge, I've encountered him previously. I've no doubt that he is the male suspect in the footage, robbing John Maloney, in Fine Wines on that date.”
In cross-examination, Garda O'Reilly was asked, “ and you were asked the basis on which you made that identification …” the following exchange unfolded:-
“A. That's correct, Judge.
Q. And you said that you encountered Mr Hayes previously?
A. That's correct, Judge.
Q. Now can you tell the court what you mean by that statement?
A. Judge, I've answered the question, Judge. I have encountered him previously. I've answered the question, Judge.
Q. Oh, yes, I know you have. Thank you. Thank you Guard. But this is very important that this man is sitting here, and you're giving evidence to say that you recognise him and that you encountered him previously. Now, can you please be specific and tell the Court how you encountered him previously?
A. Judge, I'll continue to answer the question with the same answer. I have encountered him previously, Judge.
Q. When did you encounter him previously?
A. During my time in Limerick as a guard.
Q. What time did you encounter him? What time specifically?
A. I don't have specific dates, Judge. I'm here four years.
Q. You are?
A. It was over the course of that tenure.
Q. And where did you encounter him?
A. I don't know. I don't have specific dates in front of me. I have encountered him previously, Judge.
Q. But, Garda, you're coming to court to give this evidence and are you telling this Court that you don't have information in front of you, you don't have specifics of what I'm asking you in terms of recognising and identifying this man? Is that what you're telling this Court?
A. Judge, I have recognised the male responsible for the robbery to be John Hayes, and that is my evidence and I have encountered him previously, Judge.
Q. …I'd like you to explain to the jury the basis of your knowledge. Can you do that?
A. I'm familiar with someone if I have encountered them before. I have encountered John Hayes before. That's how I recognise him to be responsible for the robbery and that's my answer, Judge.
[…]
A. I recognise him because I met him before.
[…]
A. Knew he was—where he was roughly from. I know he was from this side of the city because that's where I'm based and that's where I've met him before, Judge.
[…]
A. I believe I'm familiar with his home address, yes.
[…]
A. Because I have encountered him before in around where he lives or around Moyross where he's from.
[…]
A. Judge, I've encountered him before and I know he lives at 42 Hartigan Villas, Judge.
[…]
Q. …And finally, Garda, I think certainly you've said you're basing your opinion and your recognition on one previous encounter or how many previous encounters?
A. Numerous encounters, Judge
Q. Numerous?
A. Ten.
Q. Ten?
A. Possibly.
Q. That's—that's specific. Now, how can you be so specific?
A. Approximately 10.”
At this point, an application to discharge the jury was made on the basis that the above evidence of Garda O'Reilly having encountered the appellant over 10 times during the course of his work as a member attached to the Crime Office and no other basis would leave the jury with the impression that the appellant was a man previously known to An Garda Síochána through criminal involvement.
This application was refused, the trial judge stating that:-
“[…] back to the question of constraints that the defence complain about, that they're constrained in their cross examination. I have made it abundantly clear that they're not so constrained but if they come – embark on a cross-examination they have to deal with the answers that are there. The fact that they may feel that they're prejudicial is a matter of opinion in respect of matters.”
It is submitted that the trial judge erred in law and in fact in so stating and that he ought to have acceded to the application.
In cross-examination Garda O'Leary gave the following evidence:-
Q. “ And you have given your evidence here then that you recognised the perpetrator on the footage?
A. I immediately recognised the suspect, yes, Judge, as Johnny Hayes.
Q. And how were you so sure it was the accused man?
A. Because from my day-to-day duties I know Mr. Hayes. I wouldn't have nominated him if I had any doubt in my mind that that was not Johnny Hayes
[…]
From being in Limerick since 2009.
Q. And just in relation to your day-to-day duties, what do they entail?
A. A lot of things from – since—I started, from foot beat, routine patrols, from time I worked in — I worked in all different—aspects.
[…]
Q. — in terms of your day-to-day duties?
A. I suppose the last time I met him would have been in February of '21.
Q. And where was that?
A. Down in St Mary's Park.
Q. And what are the circumstances of that meeting?
A. Johnny Hayes was in the company of two males that I needed to speak to. On approaching the...
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