DPP v Anthony McNamara

JurisdictionIreland
JudgeMs. Justice Isobel Kennedy
Judgment Date27 April 2021
Neutral Citation[2021] IECA 126
Docket NumberRecord Number: 60/20
CourtCourt of Appeal (Ireland)
Date27 April 2021
Between/
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Anthony McNamara
Appellant

[2021] IECA 126

Birmingham P.

McCarthy J.

Kennedy J.

Record Number: 60/20

THE COURT OF APPEAL

Conviction – Violent disorder – Application to discharge jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and fact by refusing applications made by counsel for the appellant during the course of the trial to discharge the jury

Facts: The appellant, Mr McNamara, was convicted of three counts, namely violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994, production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 and criminal damage contrary to s. 2 of the Criminal Damage Act 1991. He appealed to the Court of Appeal against conviction. He contended that the trial judge erred in refusing to discharge the jury despite several applications made by counsel for the appellant. All of these applications arose from evidence given by a witness, Ms Whelan, during the course of her cross-examination. This appeal concerned four of those applications.

Held by the Court that it was not persuaded that there was any unfairness arising from the trial judge’s refusal to discharge the jury on a consideration of each application separately or cumulatively. The Court held that appropriate directions were given by the trial judge in her charge regarding the impugned evidence and there was no reason to believe that the jury disregarded the directions of the judge.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 27 th day of April 2021 by Ms. Justice Isobel Kennedy.

1

. This is an appeal against conviction. The appellant was convicted of three counts, namely violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994, production of an article capable of inflicting serious injury contrary to section 11 of the Firearms and Offensive Weapons Act 1990 and criminal damage contrary to section 2 of the Criminal Damage Act 1991.

Background
2

. The convictions relate to events occurring on the night of 9th October 2018 when a gang of 15–20 men attacked the home of Tanya Whelan, John Boswell and their two children. As part of the attack objects were thrown and significant damage was done to the home of Tanya Whelan and John Boswell and the car parked outside. Several of the attackers were armed with implements and of some importance, one of the attackers was armed with a machete. It was the prosecution case that this was the appellant.

3

. The trial of the appellant and a co-accused commenced on the 14th November 2019. Tanya Whelan and Mr Boswell had been served as prosecution witnesses in the book of evidence but ultimately the prosecution proceeded with a sole witness: Bridget Whelan, who was present in the house during the attack. In essence the respondent's case rested with the recognition evidence of Bridget Whelan and on a machete recovered from the appellant's home.

Grounds of appeal
4

. The appellant puts forward the following three grounds of appeal:-

  • (1) “The learned trial judge erred in law and fact by refusing an application made by Counsel during the course of the trial to discharge the jury on the basis that hearsay evidence of identification had been introduced by the prosecution witness Ms. Bridget Whelan. The introduction of this evidence in a case that was solely one on identification resulted in an unfair trial and rendered the conviction of the Appellant unsafe. No direction to the jury could remedy the introduction of this evidence into the case;

  • (2) The learned trial judge erred by refusing defence counsel's application to discharge the jury where prejudicial evidence was introduced on multiple occasions by the witnesses for the prosecution. The prejudice created rendered the trial unfair and the conviction of the accused unsafe

  • (3) In all the circumstances the learned trial judge should have discharged the jury and the failure/refusal to do so resulted in an unfair trial.”

5

. The grounds of appeal are interlinked and may be summarised as a contention that the trial judge erred in refusing to discharge the jury despite several applications made by counsel for the appellant. All of these applications arose from evidence given by the witness Bridget Whelan during the course of her cross-examination. This appeal concerns four of those applications.

The first application for discharge
6

. This application arose when the witness was being cross-examined as to when she first heard the smashing of glass. When giving answers the witness referred to discovering that another house had been smashed to the ground. This was not part of the prosecution case but was contained in the book of evidence. The precise words used by the witness were:-

“…That would have been the Murphy's house getting smashed to the ground that I heard.”

“…I found out afterwards that the Murphy's house was after getting smashed to the ground.”

7

. The trial judge refused the application in the following terms:-

“The first thing I would say is that the matter did arise in the course of cross examination and there was reference to this issue on the book of evidence, albeit the prosecution had not intended to call it. In the Court's view, the credibility or otherwise of whether the witness could have heard what she says she now heard in relation to the Murphy's house is a matter upon which she can be cross examined I think at present, and as matters stand any issue of prejudice can be dealt with by way of an appropriate warning to the jury. But in view of the fact that the defence were on notice of this other incident, not just by reference to disclosure but by reference to a statement in the book of evidence, I think the appropriate way with which it can be dealt with is by way of a warning to the jury and indeed the defence are entitled to cross examine the witness further in relation to the credibility of what she said, that she believed it was the Murphy's house that was getting smashed and that's what she heard. So, I am refusing the application for a direction.”

8

. The appellant submits that the reference to smashed windows at another location was inadmissible as it referred to an incident that had been removed from the indictment. The appellant argues that he could not have been on notice that the line of questioning explored would lead to the introduction of this evidence. The appellant further argues that the contention that he caused criminal damage at another address is akin to the prejudicial evidence that occurred in The People (DPP) v. Coughlan Ryan [2017] IECA 108 where the Court overturned a conviction on the basis of prejudicial evidence relating to the accused's criminal past.

9

. The appellant submits that no directions could have cured the prejudice arising as this was a case where the appellant's conviction was based primarily on the identification evidence of the witness.

10

. In response, Mr Rahn BL on behalf of the Director submits that the impugned reference was not referable to the appellant and therefore did not cause him prejudice. Moreover, it is said that the appellant was on notice of this evidence with which the appellant takes issue.

Discussion
11

. It is undoubtedly so that inadmissible evidence may arise in trials and the prejudicial impact of that evidence will fall to be determined on the circumstances of any given case. It appears that this material was contained in another witness statement which was served as part of the book of evidence and therefore the appellant was on notice of the evidence. We accept the submission on the part of the respondent that the evidence given by the witness was not referable to the appellant and so did not in any event give rise to prejudice.

The second and fourth applications to discharge the jury
12

. It is important to examine the evidence which gave rise to these applications to discharge the jury. Mr Spencer BL for the appellant drew our attention on appeal to aspects of the direct testimony given by Ms. Whelan in contending that this evidence gave rise to the necessity to cross-examine her as he did, in turn giving rise to responses which resulted in the second and fourth application to discharge the jury. We will address those two applications together.

13

. Mr Spencer refers this Court to the following extracts from the direct testimony:-

“A. Tanya just went for the baby, things started coming through the window.

Q. And just —?

A. I didn't know I was hit, she didn't know she was hit, the blood started going over the baby, our most thing was just concentrating on the baby and the kids, and then before I knew it, there was guards and paramedics everywhere, that's all I knew.

JUDGE: Guards and blue lights, is that what you said?

WITNESS: Paramedic.

JUDGE: Paramedics?

WITNESS: Yes.

MR RAHN: Paramedics, guards and paramedics everywhere?

A. Yes.

Q. And I think you're just — I'm just going to sort of try and break that down again if I can, I think you told us that things started coming through the window if that's —?

A. Yes, there was a —

Q. Can you just tell us about that and again there's a booklet, there's photographs in front of you, you might have a look through those and tell us if any of those photographs assist in explaining to the jury what you recall?

JUDGE: Take your time, Ms Whelan, just look through them.

WITNESS: Planks of wood, and red bricks.

JUDGE: See do any of the photos assist you.

WITNESS: Just the likes of them stakes, planks of wood and bricks.

MR RAHN: Okay. If you look at photograph — the photographs should be numbered, is there a number on the bottom, did somebody put a number on them, perhaps not,...

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