DPP v Carthy

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 29 March 2019
• Neutral Citation: [2019] IECA 94
• Court: Court of Appeal (Ireland)
• Docket Number: [217/18]
• Date: 29 March 2019

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

LAURENCE CARTHY

APPELLANT

[2019] IECA 94

[217/18]

THE COURT OF APPEAL

Conviction – Assault causing harm – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial judge erred in refusing to withdraw the case from the jury

Facts: The appellant, Mr Carthy, was convicted in Naas Circuit Court on 26th October 2017 for the offence of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced on 2nd July 2018 to three years’ imprisonment with 18 months suspended. He appealed to the Court of Appeal against conviction on the following grounds: 1) the trial judge erred in refusing to withdraw the case from the jury, on the application on counsel on the conclusion of the State's case; 2) the judge erred in principle in refusing to discharge the jury following the admission of inadmissible evidence regarding the existence of a "safety care plan" pertaining to the appellant by state witnesses and following an application from counsel to discharge the jury, consequent on their asking questions as to what the "safety care plan" was and why it was in place; 3) the judge erred in law in applying the test application to prohibition in judicial review as the standard for determining whether the case should be withdrawn from the jury during a criminal trial; 4) the judge erred in refusing counsel's application for an adjournment to allow the applicant to comply with the Court's requirement to present evidence as to what information could have been sought out by Gardaí to demonstrate a "real risk of an unfair trial", as required by the Court; 5) the judge erred in fact and law in holding that the voice identification evidence given by the injured party was supported by other evidence; and 6) the judge erred in law in holding that hearsay accounts of the injured party having identified the appellant as her assailant amounted to evidence of identification.

Held by the Court that, concerning the first ground, the evidence of voice recognition in this case was cogent and suitable for the jury’s consideration. The Court held that, concerning the third ground, the trial judge considered the principles applicable to an application to withdraw a case from the jury and having refused that application, then proceeded to consider the application that he stop the trial, exercising the Court’s inherent jurisdiction to do so in accordance with the well-known principle that a court has an inherent jurisdiction to protect a fair trial and due process. The Court held that, concerning the fourth ground, the trial court has an inherent jurisdiction to stop the trial if there is a real risk of an unfair trial which cannot be avoided by appropriate directions; the standard in such an application is the civil standard and the burden is borne by the defendant. The Court held that the trial judge having refused the application was correct in refusing the adjournment sought. The Court held that, concerning the fifth ground, the judge was fully entitled to consider the surrounding circumstances as relevant to the assessment of the reliability of the complainant’s evidence of voice recognition. The Court held that, concerning the second ground, the trial judge addressed the issue in the clearest of terms; he gave the jury a specific direction that they were to disregard the evidence and were not to allow the evidence to influence them in any way. The Court saw no reason why the jury would have ignored a direction in such terms by the trial judge. The Court noted that the sixth ground was not pursued.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 29th day of March 2019 by Ms. Justice Kennedy

Introduction

1 This is an appeal against conviction concerning the conviction of the appellant in Naas Circuit Court on 26th October 2017 for the offence of assault causing harm, contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997. The appellant was sentenced on 2nd July 2018 to three years” imprisonment with 18 months suspended.

Background

2 The injured party in this case is the appellant's ex-wife. On the night of 5th May 2016, she woke up to find a man's hand over her face and was pushed from the bed to floor where she managed to escape. She gave evidence that she was able to identify the intruder as the appellant by his voice when he uttered the phrase: - ‘It's just because I miss you so much.’

3 Following a call from a neighbour, two Gardaí called to the injured party's house that night. They were informed that the appellant had committed the assault and the next afternoon they met with the appellant and took him to Leixlip Garda Station. They did not interview the appellant and later charged him in respect of the assault.

Grounds of appeal

4 The appellant has put forward the following six grounds of appeal:

1. The learned trial judge erred in refusing to withdraw the case from the jury, on the application on counsel on the conclusion of the State's case;

2. The learned trial judge erred in principle in refusing to discharge the jury following the admission of inadmissible evidence regarding the existence of a ‘safety care plan’ pertaining to the Accused by state witnesses and following an application from counsel to discharge the jury, consequent on their asking questions as to what the ‘safety care plan’ was and why it was in place;

3. The learned trial judge erred in law in applying the test application to prohibition in judicial review as the standard for determining whether the case should be withdrawn from the jury during a criminal trial;

4. The learned trial judge erred in refusing counsel's application for an adjournment to allow the applicant to comply with the Court's requirement to present evidence as to what information could have been sought out by Gardaí to demonstrate a ‘real risk of an unfair trial’, as required by the Court;

5. The learned trial judge erred in fact and law in holding that the voice identification evidence given by the injured party was supported by other evidence;

6. The learned trial judge erred in law in holding that hearsay accounts of the injured party having identified the applicant as her assailant amounted to evidence of identification.

Submissions of the parties

Voice recognition evidence

7 During the trial, the injured party gave evidence that she recognised the voice of the assailant as that of the appellant, describing the following exchange: -

“‘Is that you Lar, really?’ And he was up against my ear and he said, ‘It's just because I miss you so much’”

The injured party went on to say: -

‘I knew it was him. You know, I knew the way he was breathing, whatever grunt or whatever…’

The trial judge, in his charge, gave the following warning in relation to the recognition evidence:

‘With regard to the evidence, in cases where there is evidence of a recognition, visual or voice, where such evidence is adduced and is relied upon by the State, the prosecution, and it is challenged by the accused, as in this case. I am referring to the conversation alleged to have taken place which commenced with the question, ‘Is that you, Lar?’ and the replies given to it. Where such evidence is adduced and is being relied upon, I must say to you that you should be especially cautious before accepting such evidence of recognition as being correct. But if after careful examination of such evidence, in the light of all of the circumstances and with due regard to all the other evidence in the case, you feel satisfied, indeed convinced beyond reasonable doubt, of the correctness of the recognition by the alleged victim of the voice, you are at liberty to act upon that evidence. Quite simply, people who think, or are even certain, that they recognise someone's voice can make a mistake; and all I'm saying to you is to remind yourselves of that fact when considering the evidence.’

8 The appellant submits that the reliance on this voice recognition evidence renders the conviction unsafe. The appellant submits that the trial judge did not have due regard to the dangers of the voice recognition evidence, particularly in relation to a ‘lay listener’ and the warning given to the jury was not sufficiently strong in circumstances where the case wholly or substantially rested on the voice recognition evidence. The appellant relies on the case of of DPP v. O'Brien & Stewart [2015] IECA where the Court, in considering voice recognition evidence, stated at para 52: -

‘if the trial judge can be satisfied that the controversial evidence is capable of being adequately tested then it may be safely admitted…’.

The appellant submits that the evidence in this case could not be so tested and, unlike O'Brien and Stewart, there was no independent evidence available to the jury which counteracted the dangers of the voice recognition evidence.

9 The respondent submits that in general, recognition evidence is more reliable when there is a close bond between the parties and in this case the parties had known each other for seventeen years. The respondent submits that the two points of recognition i.e. the grunts and the uttered sentence were sufficient evidence and furthermore, the witness was thoroughly cross-examined on her recognition of the appellant's voice, and thus the evidence was adequately tested.

Sparseness of evidence and the failure to seek out evidence

10 The appellant submits that the Gardaí failed in their obligation as laid out in Dunne v. DPP [2001] IEHC 45 and DPP v. Braddish [2001] 3 IR 127 to seek out and obtain evidence with a potential bearing on the case. In particular, the appellant points to the failure of the Gardaí to attend the home of the appellant until the next day; the lack of forensic testing in relation to the...