DPP v Christo

• Jurisdiction: Ireland
• Judge: McGuinness J.
• Judgment Date: 31 January 2005
• Neutral Citation: [2005] IECCA 3
• Court: Court of Criminal Appeal
• Date: 31 January 2005

[2005] IECCA 3

COURT OF CRIMINAL APPEAL

McGuinness J.

Butler J.

Abbott J.

134/03

DPP v CHRISTO

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

.v.

GEORGE CHRISTO

APPLICANT

CRIMINAL LAW

Evidence CCTV evidence disposed of by garda - Proper and desirable for garda to retain tape - Evidence given at trial that tape did not contain evidence bearing on issue of guilt or innocence - Accused's solicitor did not seek to examine tape - People (DPP) v Braddish [2001] 3 IR 127 considered - Ground of appeal failed (134/2003 - CCA - 31/1/2005) [2005] IECCA 3 People (DPP) v Christo

CRIMINAL LAW

Evidence Identification - Test in Reg v Turnbull [1977] 1 QB 224 applied - Injured party observed assailant in good light and for some time - Injured party and accused gave evidence - Holding of visual identification parade in this case not required - People (DPP) v O'Reilly [1990] 2 IR 415 distinguished - Ground of appeal failed (134/2003 - CCA - 31/1/2005) [2005] IECCA 3 People (DPP) v. Christo

CRIMINAL LAW

Evidence Identification - Warning in relation to dangers of identification evidence - Cross-racial identification - Trial judge's charge to jury - The People (AG) v Casey (No 2) [1963] IR 33 applied - Trial judge's charge did not raise issue of inter racial recognition - Verdict unsatisfactory by reason of inadequate warning -Appeal allowed on this ground conviction quashed no retrial ordered (134/2003 - CCAl - 31/1/2005) [2005] IECCA 3 People (DPP) v Christo

CRIMINAL LAW

Evidence Statement of accused - Admissibility - Accused denied making statement - No video recording - Statement taken by single garda - People (DPP) v Connolly [2003] 2 IR 1 considered - Statement made voluntarily while not under arrest - Privacy rights - No requirement to video record statement - Trial judge did not err in admitting statement - Ground of appeal failed (134/2003 - CCA - 31/1/2005) [2005] IECCA 3 People (DPP) v Christo

The applicant was convicted on one count of assault causing harm and was sentenced to two years and six months imprisonment. The applicant sought leave to appeal against his conviction on the grounds that the trial judge erred in law in his instruction to the jury regarding identification and further that the verdict of the jury went against the weight of the evidence. The applicant later sought leave to enlarge his grounds of appeal and was granted permission to put forward additional grounds of appeal regarding the identification evidence, the failure to hold an identification parade, the admission of the applicant’s statement and the disposal of the CCTV footage.

Held by Court of Criminal Appeal (McGuinness, Butler, Abbott JJ) in allowing the appeal on one ground only and quashing the conviction: That the warning of the trial judge in relation to the dangers of convicting on the basis only or mainly of identification evidence was satisfactory in every way except that it did not address the issue of the difficulties of inter racial recognition which were raised during the course of the trial.

Reporter: L.O’S.

1 Judgment of the Court delivered the 31st day of January 2005 by McGuinness J.

INTRODUCTION

2 The Applicant, who is a native of Liberia, was indicated before Cork Circuit Criminal Court on one count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. He was charged with having assaulted one Sonya Coakley-Hanan on the 30 ^th August 2002 at the Coal Quay in the City of Cork.

3 He was charged before his Honour Judge O'Donnabháin and a jury on 7 ^th July 2003 and was convicted on the same day by the jury, the verdict being unanimous. On that day subsequent to the applicant's conviction the victim of the assault gave evidence pursuant to section 5 of the Criminal Justice Act 1993 concerning the impact of the incident on her. On 9 ^th July 2003 there was a sentencing hearing before the learned trial judge at which Garda evidence in respect of previous convictions of the applicant was given and a plea in mitigation was heard. The applicant was sentenced to two years and six months imprisonment backdated to 26 ^th February 2003, the day that he was first taken into custody.

4 Leave to appeal was refused. By notice dated the 14 ^th July 2003 and filed 18 ^th July 2003 the applicant sought leave to appeal against both conviction and sentence. The applicant subsequently instructed his present solicitor, who filed the following two grounds of appeal on 19 ^th April 2004:

5 1. That the learned trial judge erred in law in his instruction to the jury regarding identification.

6 2. The verdict of the jury went against the weight of the evidence.

7 It was also stated as a third ground of appeal that the applicant reserved the right to apply to this court to amend his grounds of appeal upon being provided with a transcript of his trial.

8 On 4 ^th November 2004 the applicant served written submissions on the Director of Public Prosecutions which included a number of additional grounds of appeal. On 9 ^th November 2004 the applicant issued a notice of motion seeking leave to enlarge his grounds of appeal to include the grounds set out in his written submissions. That motion was heard at the commencement of the hearing of the applicant's application before this court.

9 The applicant's motion was grounded on the affidavit of his present solicitor, Egan, who stated that after receiving the applicant's instructions she ascertained that no grounds of appeal had been filed. Based on his preliminary instructions she arranged for the filing of the two original grounds of appeal. As her firm had not represented the applicant at the time of his trial she had very limited knowledge of the case. She instructed new counsel on behalf of the applicant. When she received the transcript of the trial she was advised by counsel that a number of further grounds of appeal arose. Ms Egan also stated that the defendant was unable to instruct her fully in relation to all aspects of the trial because he was not fully conversant with the law and his first language was not English. The applicant therefore sought to rely on the following additional grounds of appeal:

10 (a) the minimalist nature of the identification offered by the injured party was such that it is respectfully submitted that the learned trial judge should have removed the matter from the consideration of the jury.

11 (b) The requisite charge to the jury as in the case of the case of the People (Attorney General .v. Casey) (No. 2) was in all the circumstances inadequate and in addition was given in a fashion which was liable to weaken its import on the jury. It is further submitted that the jury was not warned of the dangers of relying on cross-racial identification and the proven difficulties demonstrated by such identifications.

12 (c) Given the minimalist nature of the identification here and the dangers of cross-racial identification in this case and generally, it is respectfully submitted that this is a case which required the holding of a visual identification parade. It is further submitted that failure to hold such a parade in this case constitutes unfair procedure and a breach of the applicant's rights.

13 (d) It is respectfully submitted that the learned trial judge erred in law in admitting the statement allegedly made by the applicant, given that it was taken by a single member of the Gardai and was not videotaped despite such facilities being available. Further it is submitted that the learned trial judge made several comments during his charge to the jury regarding the permissibility of the taping of voluntary statements which are wrong in fact and in law.

14 (e) The disposal of the CCTV footage by the Detective Garda in this case is directly contrary to recent decisions of this Honourable Court, and it is respectfully submitted that this action amounts to a breach of the applicant's rights.

15 (f) The cumulative effect of these errors is such that, when considered together, they render the verdict of the jury unsafe and unsound.

16 It should be noted that in addition to the written submissions referred to above a book of authorities was filed on behalf of the applicant which contained, inter alia, a considerable amount of what claimed to be scientific material concerning the dangers of cross-racial identification.

17 The motion was moved on behalf of the applicant by his counsel, Mr Le Vert. Counsel on behalf of the Director, Mr Foley, expressed strong objections to the court permitting the inclusion of what he described as quasi-scientific hearsay evidence in a situation where no expert evidence along these lines had been brought before the trial judge and the jury at the trial. As far as the other additional grounds of appeal were concerned counsel for the Director did not raise such strong objections, but stressed that many of the matters to which they referred had not been raised by way of requisition at the trial.

18 This court held that it was impermissible for the applicant to rely on the written material concerning cross-racial identification. Whether scientifically correct or otherwise, such matters would have to be brought forward in the proper way through expert witnesses at the trial. They could not be brought in indirectly by way of hearsay submissions during the applicant's appeal.

19 The matter of the identification itself, of course, was of crucial importance at the trial, and also formed part of the original grounds of appeal. The matter of the applicant's racial origin and the difficulties which might be inherent in identifying him had been raised by counsel for the applicant in cross-examination at the trial. The court would therefore...