DPP v Bob

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Birmingham P.
• Judgment Date: 19 July 2019
• Neutral Citation: [2019] IECA 353
• Docket Number: [72/18]
• Date: 19 July 2019

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

BOB

APPELLANT

[2019] IECA 353

[72/18]

THE COURT OF APPEAL

Conviction – Burglary – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial was unfair or unsatisfactory

Facts: The appellant, on 11th November 2017, in the Circuit Criminal Court in Cork, was convicted by a jury, following a contested trial, of offences of burglary, criminal damage, threat to cause criminal damage and breach of a protection order and was subsequently sentenced on 6th March 2018 to a term of five years imprisonment with the final two years of the sentence suspended, the sentence being backdated to 16th March 2017. He appealed to the Court of Appeal against his conviction. There were three grounds of appeal. The first was that the Judge failed to sever the indictment in respect of count 4, namely, the contravention of a Protection Order. On ground two, it was said that the Judge erred in law in failing to discharge the jury when the second injured party, the appellant’s daughter, in the course of her evidence, during cross-examination, indicated that the appellant had committed criminal offences which did not appear on the indictment. Ground three related to the fact it was said that the Judge erred in failing to discharge the jury following evidence given by the second injured party that her father had been incarcerated in Cork Prison. The appellant said that his complaints were cumulative.

Held by the Court that it had not been persuaded that the trial was unfair or unsatisfactory, or, specifically, that this was a case where the jury should have been discharged. The Court had not been caused to have any doubts about the fairness of the trial or any doubts about the fact that the verdict was safe.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT (Ex tempore) of the Court delivered on the 19th day of July 2019 by Birmingham P.

1 On 11th November 2017, in the Circuit Criminal Court in Cork, the appellant was convicted by a jury, following a contested trial, of offences of burglary, criminal damage, threat to cause criminal damage and breach of a protection order and was subsequently sentenced on 6th March 2018 to a term of five years imprisonment with the final two years of the sentence suspended, the sentence being backdated to 16th March 2017. He has now appealed against his conviction.

2 The background facts at the trial and now to this appeal relate to events that occurred on 16th March 2017 at various locations in Cork City. There were two injured parties in the case, one being KOB, the estranged wife of the appellant. They had split up on 19th February 2017, thus bringing to an end a 31-year relationship and a 27-year marriage, and the second injured party being AOB, daughter of the appellant.

3 The evidence of KOB was that on 16th March 2017, she was driving the two sons of herself and the appellant to school when the appellant pulled up next to her, whereupon he started screaming and shouting at her and threw the contents of a plastic water bottle at her car. It is the situation that she had previously obtained a Protection Order in respect of the appellant, she had done so shortly after the marriage split up, obtaining the order on 27th February 2017.

4 The evidence of AOB was that on 16th March 2017, she attended at her place of work, which was a hair salon in Gurranabrather. When she arrived, she found the appellant parked outside. Her evidence was that the appellant had said to her “you better give me my money or I'll burn down your house”. She further gave evidence that following receipt of a phone call from her boyfriend, PM, that she returned to her home in Fairhill. She found the back patio door smashed and a large canister of diesel or petrol on the floor. The walls, floor and stairs of the house were covered in the substance. PM, the boyfriend of AOB who lived with her, gave evidence that when he woke up on 16th March 2017, he found the appellant in the bedroom in which he (PM) had been sleeping. He left the bedroom to find the carpet outside drenched. He saw a canister on the floor and the substance smelled like petrol or diesel.

5 There are three grounds of appeal. The first is that the Judge failed to sever the indictment in respect of count 4, namely, the contravention of a Protection Order. It is said that the offence involved a separate complainant from the complainant in the more serious offences on the indictment and...