DPP and Another v Burke and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 17 October 2014
• Neutral Citation: [2014] IEHC 483
• Court: High Court
• Docket Number: [2013 2232 SS],[2013 No. 2232 SS]
• Date: 17 October 2014

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA DAMIEN KELLY)

PROSECUTOR

AND

KARL BURKE AND MARK BURKE

ACCUSED

[2014] IEHC 483

[2013 2232 SS]

THE HIGH COURT

Criminal procedure – Assault – Witness evidence – District Court seeking determination of questions by the High Court – Whether the evidence of a witness who was not contradicted is to be preferred

Facts: The accused, Mr K Burke and Mr M Burke, were charged with an alleged assault, attempt to assault, and production of a hammer with intent to intimidate or assault another person. The hearing of the charges took place between April and September 2013. The prosecution case was that Mr M Burke confronted three persons over an alleged attempted theft the previous week of a motorcar. It was alleged that during the course of this confrontation, Mr K Burke assaulted one of these persons, and that the Mr M Burke retrieved a hammer from his van with which he threatened another one of those persons. Evidence was given from two of the complainants and from nine other witnesses for the prosecution. At the end of the prosecution case, the accused sought a dismissal on the basis that there was insufficient evidence and that application was refused. The accused then went into evidence and called between them seven witnesses, the two accused and five other witnesses. A judge of the District Court, by a case stated of December, 2013, stated three questions for determination by the High Court pursuant to s. 32 of the Courts (Supplemental Provisions) Act 1961. These questions arose from the evidence given by one of the witnesses called on behalf of the prosecution, Mrs Burke. It was asserted the accused that in the absence of an attempt to discredit Mrs Burke personally, or to put to her a contradictory version of the substance of her evidence, that the trial judge could not as a matter of law be satisfied beyond a reasonable doubt of the guilt of the accused. The District Court asked 1) whether she was entitled to prefer the evidence of the prosecution witnesses whose evidence was challenged, over the evidence of the prosecution witness whose evidence was not contradicted and whose evidence disclosed an exculpatory alternative version of events, 2) whether Mrs Burke was to be treated as a hostile witness, and if so, 3) whether she was entitled to convict on the basis that she preferred the evidence of the other witnesses. The accused characterised the question as whether the rule in Browne v Dunn [1893] 6 R 67 is part of Irish law. They also argued that the presumption of innocence and the requirement that a criminal case must be satisfied beyond reasonable doubt meant that the exculpatory statement of Mrs Burke must raise a reasonable doubt such that a conviction would be unsafe. The DPP suggested that the rule in Browne v Dunn is directed at the situation where a party intends to contradict evidence in chief by a witness for the other side.

Held by Baker J that the prosecution is not entitled to challenge the credibility of Mrs Burke’s evidence as the prosecution did not cross-examine or contest the evidence in the course of trial. However, she held that the trial judge is entitled not to believe the evidence or to give a varying degree of weight to the evidence. She held that there is no rule of law that requires a party to enter upon cross-examination of a witness, adopting McPherson v Copeland [1961] SLT 373. She held that a party not testing evidence by cross-examination leaves it open to the trier of fact to treat the evidence as determinative, and uncontroverted evidence carries a particular weight which may tip the balance of the case. Baker J accepted the argument the DPP that the evidence of Mrs Burke arose in the context of a lengthy trial where it was perfectly clear what case was being put by the prosecution. She held that evidence which is not tested is admissible and the fact that it is not tested gives it greater weight; whether that evidence is to be preferred is a matter for the trial judge. She held that the trial judge is entitled to convict even when an exculpatory version of events is before the court but only if the court holds that such exculpatory version of events does not raise a reasonable doubt. She held that Browne v Dunne does not support the argument that the existence of uncontroverted evidence leads to or directs the court to a particular conclusion on a matter of fact. Baker J held that in law there is no possible characterisation of a witness as in effect hostile and as to call a person a hostile witness is to use a term of art, citing Power v Doyle [2008] 2 IR 69.

Baker J answered the questions of the District Court by holding the following: 1) Yes, but this was not to say that the evidence of Mrs Burke may be ignored, 2) No, Mrs Burke was not a hostile witness, and 3) did not arise.

Judgment approved.

Ms. Justice Baker

JUDGMENT of Ms. Justice Baker delivered on 17th day of October, 2014

1 Judge Murphy, then a judge of the District Court, by a case stated of 10th December, 2013, stated three questions for determination by this Court pursuant to s. 32 of the Courts (Supplemental Provisions) Act 1961. The questions arose in the context of a hearing, on diverse dates between 23rd April, 2013 and 4th September, 2013, of charges against the two accused persons relating to an alleged assault, attempt to assault, and production of a hammer with intent to intimidate or assault another person. The prosecution case is that the second accused, Mark Burke, confronted three identified persons over an alleged attempted theft the previous week of a motorcar. It is alleged that the first accused, Karl Burke, during the course of this confrontation assaulted one of these persons, and that the second accused retrieved a hammer from his van with which he threatened another one of those persons.

2 The first accused asserts he was not present at the locus of the alleged assault, and offered an alibi witness. The second accused admits that he was at the scene and confronted one of the three about an attempted theft, but that once the verbal confrontation occurred the persons immediately ran away. The second accused denies that he produced a hammer or even owned one of the descriptions given.

3 Evidence was given from two of the complainants and from nine other witnesses for the prosecution. At the end of the prosecution case, counsel for the accused sought a dismissal on the basis that there was insufficient evidence and this application was refused.

4 Both accused then went into evidence and called between them seven witnesses, the two accused and five other witnesses.

5 This consultative case stated arises from the evidence given by one of the witnesses called on behalf of the prosecution, Tara Burke, the wife of the second named accused and the sister in law of the other, who had given statements to the gardaí exculpatory of both accused persons which were tendered in evidence during the course of the trial by the prosecution. The prosecution did not directly put to Mrs. Burke a contradictory version of the evidence that she gave, nor was she discredited personally by the prosecution in the course of the trial. It was asserted by counsel for the accused that in the absence of an attempt to discredit Ms. Tara Burke personally, or to put to her a contradictory version of the substance of her evidence, that the trial judge could not as a matter of law be satisfied beyond a reasonable doubt of the guilt of each of the accused.

6 The trial judge has submitted certain questions to this Court by way of consultative case stated on the basis as she put it that she was “ not certain in law that she was entitled to prefer the evidence of Mr. Grec and Messrs. Cassandro over that of Mrs. Tara Burke”.

7 The questions raised in the case stated are as follows:-

“(i) Am I entitled to prefer the evidence of the prosecution witnesses whose evidence was challenged by the accused, over the evidence of the prosecution witness whose evidence was uncontradicted by any party to the proceedings and whose evidence discloses an exculpatory alternative version of events.

(ii) Am I entitled to prefer the evidence of the prosecution witnesses whose evidence was challenged by the accused, over the evidence of the prosecution witness whose evidence was uncontradicted by any party to the proceedings and whose evidence discloses an exculpatory, alternative version of events in circumstances where that witness (a)was/ is the spouse of one of the co-accused, (b) was called by the prosecution solely for the purposes of establishing that she had made a 999 call, (c) who was not examined on any other issue by the prosecution, (d) who had already furnished to the gardaí statements which were exculpatory of both of the two co-accused (copies of which were furnished to the court in evidence and which were included in the appendices hereto), and (e) who corroborated the contents of those statements under cross examination by counsel for each of the two co-accused, so that, although no application was made by the prosecution to treat the witness as a hostile witness, she was, in effect in the view of the court, a hostile witness.

(iii) If so, am I entitled to convict on the basis that I prefer the evidence of Mr. Grec and Messrs. Cassandro notwithstanding that the uncontradicted prosecution evidence of Mrs. Burke discloses an exculpatory alternative version of events.”

The Rule in Browne v. Dunn

8 At the hearing before me much of the argument of counsel for the two accused centred around the House of Lords judgment in the case of Browne v. Dunn [1893] 6 R 67. That case has been identified as the source of a principle, the precise status of...