DPP v O'Callaghan

JurisdictionIreland
JudgeO'Hanlon J.
Judgment Date30 July 1990
Neutral Citation1990 WJSC-CCA 1650
Docket NumberNo. 43/89
CourtCourt of Criminal Appeal
Date30 July 1990
DPP v. O'CALLAGHAN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)
-and-
DERMOT O'CALLAGHAN
APPLICANT

1990 WJSC-CCA 1650

No. 43/89

COURT OF CRIMINAL APPEAL

Synopsis:

EVIDENCE

Identification

Accused - Proof - Sufficiency - Jury trial - Judge's directions - Adequacy - Bank robbery - Whether security guard had opportunity to see face of accused - Jury - Possibility of majority verdict - Jury reminded of possibility by judge - Criminal Justice Act, 1984, s. 25 - (43/89 - Court of Criminal Appeal - 30/7/90)

|The People v. O'Callaghan|

JURY

Verdict

Deliberations - Duration - Minimum period - Trial on indictment - Retirement of jury to consider verdict - Disagreement - Return to court for advice - Jury informed by trial judge that majority verdict possible - Information given before jury had deliberated for two hours - (43/89 - Court of Criminal Appeal - 30/7/90)

|The People v. O'Callaghan|

Citations:

AG, PEOPLE V CASEY (NO 2) 1963 IR 33

CRIMINAL JUSTICE ACT 1984 s25(1)

CRIMINAL JUSTICE ACT 1984 s25(2)

CRIMINAL JUSTICE ACT 1984 s25(3)

1

JUDGMENT delivered on the 30th day of July 1990by O'Hanlon J.

2

The applicant for leave to appeal, Dermot O'Callaghan, was tried before Judge Dominick Lynch and a jury in the Dublin Circuit Criminal Court on the 9th and 10th March, 1989, on charges of robbery and larceny arising out of an armed hold-up of the Swords Road branch of the Bank of Ireland which took place on Friday, 5th February, 1989.

3

On the hearing of this application it was contended on his behalf that the evidence for the prosecution was inadequate to support a conviction, particularly in relation to the purported identification of the applicant as a person who took part in the armed robbery, and that the trial judge should have directed the juryto enter a verdict of Not Guilty on all counts in the indictment at the conclusion of the evidence adduced by the prosecution.

4

Secondly, it was submitted that the learned trial judge failed to direct the jury adequately and properly in relation to the manner in which the evidence given at the trial purporting to identify the applicant should be assessed by them when endeavouring to reach their verdict, and failed to warn the jury adequately as to the dangers involved in relying on evidence of visual identification.

5

Thirdly, it was submitted that the learned trial judge acted incorrectly in bringing to the notice of the jury, before they had already spent two hours deliberating upon their verdict, that in certain circumstances it was permissible to bring in a majority verdict.

6

The case has a number of unusual features. The witness who was called to give evidence of identification in relation to the applicant was a security officer whowas on duty in the bank premises on the day of the robbery, and who had also been on duty in the same branch two days previously when, he said, he had noticed the applicant and another young man behaving in a manner which he regarded as suspicious and which attracted his attention at the time, after they had entered the bank. On that occasion there were no other customers in the bank. They went up to where the queue would normally form, they looked around the bank and then came back to him and asked him where were the cashiers and he directed them to the cashier'sdesk.

7

When the robbery took place on the 5th February, 1988, this witness was confronted suddenly by one of the robbers. The first thing he noticed was feeling a prod in his stomach, and on looking down he saw that a gun was being held against his body. The man who was facing him, and holding the gun, said: "How is it going, get on the floor". The witness obeyed, and did not see what happened after that until the robbers had left the bank. He gave a description of the manwho confronted him and gave him the order to lie on the floor. He said: "He had a wig, a cap, a tweed brownish cap and he had a false nose and lightly tinted glasses, but I could see that he had blue eyes and it looked like a beard and a false moustache."

8

In cross-examination he said that he would have had the man in his sight for a couple of seconds. However, a video camera was operating in the bank at all relevant times, and on the day of the raid the witness was shown a play-back of the incident as recorded on the video film. He saw it twice on that day. On the following day, Saturday, it occurred to him for the first time, that the man who had held him up with the gun was similar to one of the two men who had aroused his suspicions two days before the raid, when they had entered the bank together and when he had them under observation for some time. Accordingly, he sought out the video recordings for the earlier part of the week and when he had located and played back the film covering...

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