DPP v Carney
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 04 July 2011 |
| Neutral Citation | [2011] IECCA 53 |
| Court | Court of Criminal Appeal |
| Date | 04 July 2011 |
[2011] IECCA 53
COURT OF CRIMINAL APPEAL
Macken, J.
Budd, J.
O'Keeffe, J.
AG v O'NEILL 1964 IJ 1
DPP v MELEADY (NO 3) 2001 4 IR 16
R v SANG 1980 AC 402
KEANE THE MODERN LAW OF EVIDENCE 6ED 2006 48
CRIMINAL LAW
Evidence
Murder - Provocation - Intention - Photos of deceased - Admissibility to rebut defence of lack of intention - Responses given in garda interviews - Trial judge's discretion to exclude otherwise admissible prosecution evidence if its prejudicial effect outweighs its probative value - Whether discretion to admit evidence exercised judicially - Application refused (271/2008 - CCA - 4/7/2011) [2011] IECCA 53
People (DPP) v Carney
Judgment of the Court delivered on the 4th day of July, 2011 by Macken, J.
This is an application for leave to appeal against the applicant's conviction on the 8 th November, 2008 for the murder of his late partner.
The applicant lived with his partner, who was 27 years of age, in an apartment in the City of Dublin. The transcript discloses that on Friday, the 5 th October, 2007 the applicant had gone to a public house premises called The Four Roads, and another called The Kestrel. Apparently he had not been drinking for about three or four months, due to his efforts to control his alcohol dependency. However, he commenced to drink for quite a considerable part of the day, with small intermissions to attend a nearby bookmaker's premises where he made a substantial profit. Later that evening, according to the evidence, at about 8.45 p.m., he came back to his partner's apartment, where she already was after having finished her day's work. She was smoking cannabis. The apartment smelt of cannabis and all the windows and doors were closed. The applicant told her to open a door to let the smell out, but she did not, or would not. According to his later interviews with gardai, he and his partner had a row about this. The row was loud and noisy, and he had his face close to hers. She was sitting in an armchair and he was leaning over her and when she refused to open the window, he shouted at her, and she hit him "a clatter". He then put his hands around her neck and squeezed, and in the event, she fell off the armchair onto the floor and he fell on top of her. The transcript discloses that he continued to squeeze, and then he found her face had turned blue and he stopped. He realised that she was dead. He had some scratches to his face and arms, and the evidence suggests these were likely to have been caused by his partner resisting for a time. He then moved her body from the living-room to the bedroom and placed it on the floor beside her bed and covered her with a blanket. Then the applicant, having showered and changed, after some time left the apartment, and spent the rest of the evening drinking. Next day, he continued drinking and went to a funeral and a party. Apparently, he also took some drugs over the period since she had died. Early on Sunday morning, the 7 th October, 2007, having ostensibly attempted to kill himself by taking a large number of tablets, and by trying to cut his wrists, he then telephoned the gardai who arrived at the apartment. Their evidence indicated that the applicant was, at the time, very remorseful.
The applicant, upon conviction, was sentenced to the mandatory term of life imprisonment and has sought leave to appeal his conviction to this Court by Notice of Application for Leave to Appeal dated the 20 th November, 2008. He raised three distinct grounds in that Notice, and helpful written submissions were filed on behalf of both parties. These have been supplemented by oral argument. On behalf of the applicant, Michael O'Higgins, S.C., at the commencement of the oral hearing, indicated that he was not relying upon ground 1 of the Notice of Appeal, but confined his application to grounds 2 and 3, which he proposed to address on the basis of both submissions being premised on similar legal principles. The two grounds are in the following terms:
2. The learned trial judge erred in law, and in fact, in allowing photographs of the deceased to be presented to the jury, in circumstances where the prejudicial effect of the photographs far outweighed their probative value.
3. The learned trial judge erred in law, and in fact, in allowing certain questions and answers in the interview notes of the applicant with members of An Garda Siochana to go to the jury, in circumstances where those questions and answers related to the state of the mind of the deceased. Those questions and answers contained no probative material and could only have caused prejudice to the applicant.
Although Mr. O'Higgins, in essence, makes common legal arguments on both grounds which centre around the prejudicial effect of their admission, it is necessary to say something about the background to the disputed admission of each category of evidential material.
The first extant ground concerns the admission into evidence of a series of three photographs of the deceased woman, to which objection was taken at the trial. The three photographs were taken by a garda, on Sunday morning, the 7 th October, 2007, after the applicant had phoned the gardai and they had arrived at the apartment. These three photographs were not part of the formal post-mortem examination, when photographs might also have been taken. The photographs show the following: (a) as to the first of them, it is taken from the bottom of the bed beside which the body had been placed, and is a full length photograph of the deceased showing her head and face, although not in close up, and her body is covered by a blanket. She had been placed on the floor by the applicant, lying full length alongside her bed with her head at the top and her feet at the bottom of the bed nearest to the photographer; (b) as to the second and third photographs, they both show the deceased's face and head in close up, and in particular they depict the state of her face, including the marks on her neck where blood had congealed, as well as marks on the rest of her face, and also the colour of her face. These features will be considered in greater detail below.
On the application of the prosecution at the trial, Diarmuid, McGuinness, S.C. sought to have these three photographs admitted on three grounds, namely: (i) that they were, in themselves, being a pictorial record, admissible, and relevant evidence of the injuries to the deceased; (ii) that they were relevant to support or clarify the evidence about to be given by the State Pathologist, Professor Cassidy, illustrating her findings and providing the bases and grounds for them, especially in relation to the colour of the face; and (iii) that they were relevant to rebut the assertion by the accused that he, the applicant, had neither intended to kill the deceased, nor even to hurt or cause serious injury to her. While accepting that such photographs are not often put into evidence, because they are seemingly prejudicial, distressing and inflammatory, nevertheless Mr. McGuinness argued at trial that they were sufficiently necessary, material and probative to overcome any objection on grounds of being unnecessarily prejudicial.
The admission of the photographs was objected to by Mr. O'Higgins for the accused on the basis that they were not admissible, because (i) they were highly prejudicial, and that such prejudice clearly outweighed any probative value which they might have, and (ii) they were not necessary, since it was conceded by the applicant that the deceased's face had turned blue. He submitted that no issue arose on the point that her face had turned blue, which might require the admission of photographs of this type, which are not normally admitted at trial. Here, however, the gruesome photographs were not requisite, as this occurrence of the blueness of her face was admitted by the accused
The learned trial judge made his ruling, following legal argument, in these terms:
"The photographs in issue here are not particularly shocking as these photographs go. They are illustrative of matters to be dealt with in her evidence by Professor Cassidy. It is not a sufficient answer for Mr. O'Higgins to say that matters are not in issue. The prosecution are entitled to put flesh on the bones of their case. I allow the photographs."
First, and on a preliminary contextual basis, Mr. O'Higgins for the applicant says it is important to view the arguments to be made by him against the following background. In the trial, the defence of the applicant was that he did not intend to kill his girlfriend, nor even to hurt her or cause her serious injury, and therefore the provisions of law relating to the requirements for establishing intent were not met. Further, the issue of provocation had been raised, and the learned trial judge had accepted that the test for permitting this to be raised as a ground of defence had been met. The prosecution,, on the other hand, were contending that the required intention to kill or cause serious injury was present. The case was therefore fairly balanced between the parties, and the jury might properly have decided in favour of one or other contention. In such circumstances there is a particular onus on a party, here the prosecution, seeking to have evidence admitted in circumstances outside the norm. That onus is heavier than in a case where the run of the trial is not so evenly balanced.
In the written submissions it is accepted on behalf of the applicant that a judge in a criminal trial has a...
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