DPP v Barnwell
1998 WJSC-CCC 5319
CENTRAL CRIMINAL COURT
DPP, PEOPLE V CASEY
R V GALBRAITH 1981 73 CAR 124, 1981 2 AER 1060
R V SHIPPEY 1988 CLR 767
TRANSCRIPT OF PROCEEDINGS HEARD BEFORE MR. JUSTICE FLOOD, IN DUBLIN, IN CAMERA, ON JANUARY 21ST, 1997, AND FOLLOWING DAYS.
I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above-named proceedings.
Transcripts are the work of the shorthand writer and they must not be photo-copied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of the shorthand writer.
For the Prosecution:
Mr. O'Connell BL
Mr. Murphy BL
Chief State Sols,
For the Defendant:
Mr. Grogan SC
Mr. Grehan BL
MR. JUSTICE FLOOD: First of all, my sincere apologies for being so tardy, basically the reason was I was getting a judgment typed, put together. As it is going to affect the further participation of the jury in this matter, I think that they should be present when I'm reading this so they know the reasons for my decision.
Will Your Lordship make a copy of the ruling available to counsel?
MR. JUSTICE FLOOD: I can't do it at the moment, but I certainly will, of course. The problem is it's in two or three pieces because we tried putting it together and getting it typed, but it just doesn't work that way.
Later on today.
MR. JUSTICE FLOOD: I would hold that I would have it after lunch.
THE JURY ENTERED THE COURTROOM AND THE FOLLOWING PROCEEDINGS WERE HELD:
THE JURY WAS POLLED. ALL PRESENT.
MR. JUSTICE FLOOD: My first duty, Ladies and Gentlemen, is to be courteous and to apologize for keeping you here for three quarters of an hour beyond the time which I appointed. It wasn't entirely under my control. I was trying to get a judgment typed and the typing services didn't quite come up to standard. My apologies.
Secondly, the reason I'm about to give judgment in relation to the application which was made to me yesterday afternoon by counsel for the defendant, and as it would affect – and though it was made in your absence, as it will affect your participation in the trial, I thought it proper that you should be present to hear what I'm doing and the reasons why.
The Accused, Geoffrey Barnwell, stands indicted before this Court of raping Freda Cahill at about 1:40 a.m. on the morning of March 18th, 1995 on the waste-ground off Ballymun Road, Ballymun, Dublin 9. It's common case that the complainant, Mrs. Cahill, was brutally raped on that night at that hour. The only issue upon which there is contest is on the question of the identity of the assailant. Mrs. Cahill is an intelligent and good witness. She is in my opinion a truthful witness. The scene of the outrage had a very considerable degree of public lighting approximate to the actual point of assault. In the course of her evidence she says that while she was terrified by her assailant who told her to keep her eyes closed, she did have opportunities observing him and his face. She described him, in cross-examination, as being five-foot-six to five-foot-nine in height with streaked blond way hair which went back over his ears and down under his ears. She also said in cross-examination that she didn't get a good look at his face; that it was too dark to see his face clearly and that he had curly blond hair. There is little or no doubt from the photograph taken by the Guardai of the accused man whilst in custody that he did not have curly hair and further that he was five-foot-eleven in height. At an identity parade on April 29th after his arrest, the complainant, Mrs. Cahill, picked out the accused man.
This evidence must be read in the context of the very specific directions and warnings in the people V. Dominic Casey Case, . Judge Keensmarmore in that case says at that point: "We are of the opinion that jurors as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has proved to be erroneous, and also that they may be inclined to attribute too much probative affect to the testimony of an identification parade. In our opinion it is designed that in all cases where the verdict depends substantially on the correctness of an identification, their attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous to the possibilities of the state of the case before them and of the necessity of caution; nor do we think that such warnings should be confined to cases where identification is that of only one witness. Experience has shown that mistakes can occur where two or more witnesses have made positive identifications. We consider jurors, in cases where correctness of identification is challenged, it should be directed on the following lines: Namely, that if the verdict as to the guilt of the prisoner is to dependant in whole or substantially on the correctness of such identification, they should bear in mind that there have been a number of instances where responsible witnesses whose honesty is not in question and whose opportunity for observation have been adequate, made positive identifications on the parade or otherwise which identification was subsequently proved erroneous; and accordingly, they should be especially cautious before accepting such evidence of identification as correct. But that if after careful examination of such evidence, in the light of all circumstances and with due regard to all other evidence in the case, they feel satisfied beyond a reasonable doubt of the correctness of the identification, they are at liberty to act upon it."
Whilst in custody, he was interviewed by Detective/Garda Andrew O'Keefe and made what can best be described as an exculpatory and self-serving statement in which he denied that he was the assailant and, further, that he was on the night – he was not on the night in question in the Ballymun area. He gave to the Detective/Garda an account of where he was on the night, St. Patrick's night, the 17th of March and going on to the morning of the 18th of March up to and including 12 noon on the 18th. In short, that statement placed him in the company of friends in the Blanchardstown area. The Detective/Garda O'Keefe in evidence said that he had interviewed some eight people referred to in that statement.
In cross-examination at...
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