DPP v Cahill

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Keane C.J.
• Judgment Date: 31 July 2001
• Neutral Citation: 2001 WJSC-CA 1634
• Docket Number: [C.C.A. No. 1 of 2000 and No. 30,30/01 & 1/00
• Date: 31 July 2001

2001 WJSC-CA 1634

COURT OF CRIMINAL APPEAL

Keane C.J.

Johnson J.

Herbert J.

30/01 & 1/00

DPP v. CAHILL & COSTELLO

BETWEEN:

The People at the Suit of the Director of Public Prosecutions

Respondent

and

James Cahill and Gearó Costello

Applicants

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

PEOPLE V CASEY (NO 2) 1963 IR 33

CRIMINAL JUSTICE ACT 1984 S20(8)

AG, PEOPLE V MARTIN 1956 IR 22

AG, PEOPLE V FAGAN 1974 1 FREWEN 375

DPP, PEOPLE V O'REILLY 1990 2 IR 4

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

CRIMINAL JUSTICE ACT 1984 S20(1)

CRIMINAL JUSTICE ACT 1984 S20(4)

DPP V WALLACE UNREP KEANE 30.4.2001

AG, PEOPLE V BYRNE 1974 IR 1

SANDES ON CRIMINAL LAW & PROCEDURE IN THE REPUBLIC OF IRELAND 3ED 177

CHARLTON, MCDERMOTT & BOLGER ON CRIMINAL LAW

R V TAYLOR 21 CAR 20

R V EXALL 1866 4 F&F 922

CROSS & TAPPER ON EVIDENCE 9ED 24

Synopsis

EVIDENCE

Identification

Appeal - Visual identification evidence - Alibi - Whether arrest lawful - Whether convictions supported by weight of evidence - Whether adequate directions given by trial judge to jury - Whether appeal should be allowed - Whether verdict of jury safe - Offences Against the State Act, 1939 section 30(1) - Criminal Justice Act, 1984 section 20(1) (1/2000 & 30/2001 - Court of Criminal Appeal - 31/7/01)

DPP v Cahill - [2001] 3 IR 494

The applicants had been convicted of firearms and robbery offences and sought leave to appeal against their convictions. The applicants submitted that the evidence adduced by the prosecution did not support their convictions. In particular the applicants contended that the trial judge had given an inadequate warning in relation to the visual identification evidence adduced. Keane CJ, delivering judgment, held that the directions given by the trial judge in relation to visual identification were careful and comprehensive. However the purported identifications by witnesses of the first applicant at Galway District Court were of negligible value and the case against the first applicant should have been withdrawn. Furthermore the trial judge should not have permitted the prosecution to lead evidence regarding the second applicant's alibi when he did. The trial judge's charge to the jury regarding circumstantial evidence may have given an erroneous impression. The appeal would be allowed. In the case of the first applicant the conviction would be quashed. In the case of the second applicant the conviction would be quashed and a re-trial ordered.

1 JUDGMENT of the Court delivered the 31st day of July 2001 by Keane C.J.

Introduction

2 On the 19th January 1999, two men wearing balaclavas and carrying guns robbed a jewellers shop, Hartmanns, in the City of Galway of jewellery to the value of £300,000. On the 25th January, both applicants were arrested in Dublin under s. 30 of the Offences Against the State Act, 1939and, after a period of detention, were brought before the District Court. Each of them was charged with the robbery, with allowing themselves to be carried in a car without the consent of the owner and with possession of a firearm or imitation firearm with intent to commit an indictable offence. They were returned for trial to the Circuit Court and were tried in respect of the charges by His Honour Judge Carroll Moran and a jury in the Galway Circuit Court. After a trial lasting 18 days, each of them was convicted of the charges of robbery and possession of a firearm. Each of them was sentenced to 10 years imprisonment in respect of the charge of robbery and 5 years imprisonment in respect of the possession charge, all sentences to run concurrently. Applications for leave to appeal against the convictions and sentences having been refused, they have now appealed to this court.

3 The prosecution's case against the first named applicant was based exclusively on the evidence of two witnesses who identified him as the driver of the car used by the two robbers when they were escaping from the scene and the evidence of another witness, a FÁS employee, who identified him as one of two people whom he had seen in a jeep, which was linked by other evidence to the robbery, in Clarinbridge on the morning of the robbery. The case against the second named applicant was also based on the evidence of the last named witness who identified him as the other person in the jeep on that occasion, but was also based on other items of evidence, including

4 (a) evidence establishing that he was the owner of the jeep; and

5 (b) evidence of a conversation he had with his girl friend in which he explained his presence in Limerick shortly before the robbery by saying that he was there to get guns.

6 The evidence of visual identification by the three witnesses is considered in more detail at a later point of this judgment. The other evidence in the case can be summarised as follows.

7 Two of the witnesses who saw the robbers leaving the scene described the car as a blue Subaru and noted the registration number. The car was found by the Gardaí on the 20th January, the day after the robbery, at Mulrook Quay between the high and low watermark and appeared to have been covered by the tide. A shotgun cartridge was found under the mat of the seats. Mulrook Quay is approximately 4¾ miles from Kinvara, which was where the second named applicant was picked up by a taxi sometime shortly after midnight on the night of the 19th/20th January. There was also evidence that the car had been stolen from a house in Knocknacarra between 7.30 on the evening of January 18th and 8.50 a.m. on the morning of January 19th.

8 Frank Bannon, the FÁS employee, gave evidence of having seen two persons in a Pajero jeep in Clarinbridge on the morning of the robbery. He said that he saw the same persons get into a blue Subaru car, the registration number of which was the same as the stolen and abandoned car used in the robbery, and drive off in the Galway direction. He told the Gardaí of what he had seen and they placed the jeep under observation. When it was ultimately examined, it was found to contain material, such as a filofax and other documents, containing the name and address of the second named applicant. There was also evidence that the jeep had been sold to the second named applicant some time before the robbery. It was reported to the Gardaí as having been stolen on December 30th.

9 The second named applicant's girl friend, Mairead Curry, gave evidence that, sometime before the 19th January, 1999, she had a phone call from him which her own phone indicated had originated in Limerick. She thought he was in Dublin at the time, but, having rung the number he was recorded as having rung from, she established that the call came from Jury's Inn in Limerick. She went there and found the jeep which she knew to be his in the car park and left a note in it for him. She said that the second named applicant subsequently rang her and she accused him of being with another woman. He said that that was not true and that he had been "getting guns". She also identified clothing found by the Gardaí in the jeep as belonging to the second named applicant.

10 The jury retired to consider their Verdict at 4.15 p.m. on the final day of the trial and returned on two occasions to ask questions of the trial judge. They retired for the last time at 7.33 p.m. and, not having arrived at a verdict about half an hour later, were told by the trial judge that they would stay overnight in a hotel in Galway and resume their deliberations at 10.25 a.m. the following morning. The following day the jury returned at 1.00 o'clock with a unanimous verdict of guilty on the two counts.

The grounds of appeal

11 A number of grounds of appeal were relied on in both the written submissions and the oral arguments advanced to this court which were common to both cases and which can be summarised as follows.

(1) Visual identification

12 It was submitted on behalf of both applicants that the trial judge had given an inadequate warning as to the dangers of visual identification and, in particular, that, while he had cited in full the well known passage from the judgment of Kingsmill Moore J. speaking for the Supreme Court in The People v. Casey (No. 2) (1963) IR 33, he had not directed the attention of the jury to factors of the identification which, as it was urged, were peculiar to this case.

(2) Other features of charge

13 It was submitted that the trial judge had failed in the course of his charge to deal adequately with the presumption of innocence to which both applicants were entitled and had also failed properly to explain the law as to circumstantial evidence to the jury.

(3) Failure to give direction

14 It was submitted that the trial judge had erred in each case by failing to accede to an application on behalf of each applicant that the case against them should be withdrawn from the jury at the close of the prosecution case.

(4) The jury's right to disagree

15 It was submitted that the trial judge erred in law in failing to advice the jury of what was described as their "right to disagree".

16 There were in addition separate grounds of appeal which related exclusively to the case against the first and second named applicants respectively.

17 In the case of the first named applicant, it was said that the trial judge had allowed evidence to be adduced by the prosecution in rebuttal of an alibi which, in a letter written on behalf of the solicitors for the second named applicant, it was stated would be relied on at the trial in the case against that applicant. It was submitted that, the trial judge having during the course of the trial allowed such evidence to be given, should then have acceded to an application on behalf of the first named applicant for a discharge of the jury and a separate trial in his case, on the ground that there was a serious risk that the jury would erroneously take that...