DPP v Connors
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 15 May 2018 |
| Neutral Citation | [2018] IECA 144 |
| Docket Number | Record No: 192/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 15 May 2018 |
[2018] IECA 144
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Mahon J.
Edwards J.
Record No: 192/2016
Conviction – Criminal damage – Judge's charge – Appellant seeking to appeal against conviction – Whether trial judge erred in his rulings and/or determinations
Facts: The appellant, Mr Connors, on the 22nd and 23rd of June 2016, was convicted by the unanimous verdict of a jury at Clonmel Circuit Criminal Court of four offences alleged to have been committed on the 2nd of July 2015. These related to: (1) criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991; (2) possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offence) Act 2001; and (3) and (4), respectively, two counts of dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961. A sentence of six years was imposed in respect of the criminal damage count while a sentence of two and a half years was imposed for the count in relation to possession of stolen property, to run concurrent to the sentence in respect of criminal damage. The judge imposed a sentence of six months in respect of each of the dangerous driving counts, to run concurrent to one another and to the other sentences. The sentencing judge also conditionally suspended the last year of the cumulative seven year sentence for a period of two years. The appellant appealed to the Court of Appeal against his conviction, consolidating his grounds of appeal under three main headings, namely: A. errors by the trial judge in his rulings and/or determinations re (a) "recognition" evidence, (b) the "possession" charge and (c) failing to engage or provide adequate reasons; B. unfairness/objective bias; and C. jury verdict unsafe or perverse.
Held by the Court that it would dismiss the appeal on all grounds save in respect of the ground that raised misstatement/overstatement of a detail of the evidence in the course of the judge's charge. While the Court considered that the trial judge was in error in that regard, it was satisfied to apply the proviso in s. 3 of the Criminal Procedure Act 1993 and uphold the convictions notwithstanding that error.
The Court held that it was disposed to uphold the convictions in this case.
Appeal dismissed.
On the 22nd and 23rd of June 2016 the appellant was convicted by the unanimous verdict of a jury at Clonmel Circuit Criminal Court of four offences alleged to have been committed on the 2nd of July 2015. These related to: (1) criminal damage contrary to s. 2(1) of the Criminal Damage Act, 1991; (2) possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offence) Act 2001; and (3) and (4), respectively, two counts of dangerous driving contrary to s. 53(1) of the Road Traffic Act, 1961, as amended.
A sentence of six years was imposed in respect of the criminal damage count while a sentence of two and a half years was imposed for the count in relation to possession of stolen property, to run concurrent to the sentence in respect of criminal damage. The learned judge imposed a sentence of six months in respect of each of the dangerous driving counts, to run concurrent to one another and to the other sentences. This resulted in a cumulative sentence of seven years. The sentencing judge also conditionally suspended the last year of that cumulative sentence for a period of two years.
The appellant appeals against both his conviction and the severity of his sentence. This judgment deals with the conviction aspect of his appeal only.
The stolen property in question belonged to Mr Pádraig Ryan of Monksgrange, Co. Tipperary. The property in question was a 'Nugent' twin-axle trailer with an estimated value of €3,000. On the trailer was a 2013 red 'Craftsman' ride-on lawnmower, with an estimated value of €2,500. There was also a 'Marijoama' strimmer with an estimated value of €500. The trailer had been left beside Mr Ryan's garage, which, although located at the end of a long driveway into the property, was visible from the road outside. Mr Ryan left his home at about 2.15 p.m. on the 2nd of July 2015 and the trailer was there. When he returned home at around 7 p.m. the trailer and its contents were gone. When the property was later recovered the electrical cable on the trailer was broken.
On the same evening Detective Garda Patrick O'Gorman and Detective Garda Adrian Cooke were on duty and were patrolling in an unmarked Ford Mondeo. Conditions were described as dry and sunny with good visibility. At approximately 7.00 p.m. they were leaving Moyglass village in the direction of Fethard when they observed a black jeep driving towards them in an erratic manner. The jeep had a trailer attached which was swerving. As the vehicle approached the car it braked hard and took evasive action.
Detective Garda O'Gorman, who was the observer (in the front passenger seat) told the jury that at the last minute, because of the manner in which the car was approaching, he focussed on identifying the driver and recognised him as the appellant. He claimed that the appellant was at all times staring back at the two Gardaí. Detective Garda O'Gorman told the jury under cross examination that the appellant was wearing a black peaked cap 'but the peak of his cap was back' so that the appellant's face could clearly be seen. He told the jury that he was '100, 110%' sure it was the appellant. He admitted under cross examination that the driver (Detective Garda Cooke) would have been seated between him and the appellant. Detective Garda Cooke said he also recognised the appellant. Under cross examination he told the jury that he had formed the opinion that the driver was the appellant independently of Detective Garda O'Gorman. Regarding the appellant's clothing, Detective Garda Cooke said he was wearing a black baseball cap and he was 'wearing it normal with the peak up on it'. The admissibility of the recognition evidence of the two Gardaí was unsuccessfully challenged at a voir dire which is dealt with in the next section of this judgment.
It was decided to pursue the appellant to caution him regarding the manner of his driving. At the beginning of the pursuit there was a silver car in front of the appellant's which he overtook on a bend. The silver car pulled in when he heard the Garda sirens and the Gardaí were able to catch up with the appellant. Detective Garda O'Gorman estimated that he was driving in excess of 120 kilometres per hour on a country road where the speed limit was 80 kilometres per hour. At a junction near Laffansbridge the Gardaí observed a cyclist coming around a bend, travelling towards the jeep. The appellant took the bend at speed on the wrong side of the road forcing the cyclist to take evasive action and mount the grass at the side of the road. Detective Garda O'Gorman stated that it was 'lucky [the cyclist] had somewhere to go'.
The appellant continued on towards the townland of Killaheen. After a time he came to a sudden stop. At that stage, Detective Garda O'Gorman attempted to exit the car to approach the jeep. There was approximately a car's length between the jeep and the patrol car. Detective Garda O'Gorman was stepping out when the appellant reversed at speed into them in an attempt to disable the patrol car. Garda O'Gorman was 'shunted' back into the passenger seat. Detective Garda O'Gorman was uninjured, and the car was not disabled.
The pursuit continued. Detective Garda O'Gorman described the road as a 'country road, very narrow, but the surface was it was newly tarred at that stage and it was a good enough surface on that road but again very narrow and given the time of year the hedges were very overgrown as well.' A short time later, the appellant once again came to a sudden stop and tried to reverse on top of the patrol car. This time Detective Garda Cooke avoided impact by reversing. The appellant took off towards Ballintaggart down ' a country boreen' which had 'grass growing in the middle of it' and was liable to create clouds of dust if driven on at speed on a dry summer's evening, making it impossible to maintain close pursuit. All of a sudden the trailer became visible through a cloud of dust, having been abandoned in the middle of the road, and the black jeep was observed driving away. Detective Garda O'Gorman estimated that the pursuit had lasted approximately 10 minutes.
The appellant was arrested on the 8th of July 2015 and was interviewed at Clonmel Garda Station. In this regard Detective Garda O'Gorman stated that '[h]e was interviewed ... but nothing arose.'
In his defence, counsel for the appellant argued that the person seen driving the jeep was not in fact the appellant – this is dealt with in the next section. It was also put to Detective Garda O'Gorman that the appellant had indicated that he had been drinking all day with his family in Thurles. In response, Detective Garda O'Gorman stated:
'A. He stated that, Judge, but he didn't state that during interview. He stated that off camera
Q. Isn't but isn't ?
A. and it changed from at various times during the day. It started that he was drinking by the river, then that proceeded when questioned further, that proceeded that he was drinking with his family and then when asked for details he stated he was actually in an off licence in Thurles.
Q. Yes?
A. It's just because I know Thurles district, it was we clarified that he give me the directions, I could ascertain whereabouts he was saying in Thurles he was at that stage. And I clarified that it was Millea's at the bottom of the square is the off licence he indicated. However, he's indicating he was there at quarter...
To continue reading
Request your trial
-
DPP v Hogan
...embarking on careers as front-line service providers.” 25 Further reliance is placed on the case of The People (DPP) v Daniel Connors [2018] IECA 144, which is quoted from as follows: “It is important that the Courts should be seen to support the important role played by first responders wh......
-
DPP v Larkin
...by the Court of Appeal in a judgment given on 15th May, 2018 in a case of the People (Director of Public Prosecutions) v Daniel Connors [2018] IECA 144 which explained that although for a possession offence to have been committed the possession relied upon must have been “otherwise than in ......