DPP v Cooney

 
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1998 WJSC-SC 846

THE SUPREME COURT

Hamilton, C.J.

Denham, J.

Barrington, J.

Keane, J.

Murphy, J.

188/96
DPP v. COONEY

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

AND

CHRISTOPHER COONEY
Appellant

Citations:

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S4(6)

CRIMINAL JUSTICE ACT 1984 S10(1)

CRIMINAL JUSTICE ACT 1984 S10

COURTS OF JUSTICE 1924 S29

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

BLACKSTONES CRIMINAL PRACTICE (1992) 2089

CROSS ON EVIDENCE 7ED 724

FREWEN CASES IN THE COURT OF CRIMINAL APPEAL V1 161

DPP V O'REILLY 1991 ILRM 10

R V HOWICK 1970 CLR 403

R V TRICOGLUS 1977 65 CAR 16

R V HORSHAM JUSTICES EX PARTE BOKHARI 1981 74 CAR 291

DPP, PEOPLE V MCDERMOTT 1991 1 IR 359

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

ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE (1997) PARA 14–86

EXTRADITION ACT 1965

Synopsis:

Criminal Law

Identification; Criminal Justice Act, 1984 sections 4 & 10(1); Appeal pursuant to s.29 Courts of Justice Act, 1924; whether trial judge should have withdrawn case from jury as sole evidence connecting accused based on courtroom identification; discretion; whether “dock identifications” irremediably tainted due to association with earlier identifications made during unlawful custody; principles applicable to “dock identifications”. Held: Trial judge's discretion correctly exercised in circumstances; absence of male fide in infringement of constitutional rights; rights upheld due to inadmissibility of parade evidence; matters in book of evidence subsequently ruled inadmissible does not retrospectively invalidate return for trial.(Supreme Court: Hamilton CJ., Denham J., Barrington J., Keane J., Murphy J.29/05/1997) - [1997] 3 IR 205

People ( D.P.P.) v. Cooney

1

JUDGMENT of the court delivered the 29th day of May, 1997 by Keane J.

2

At about 10 o'clock on the evening of February 16th, 1991 a young man named Robert Lynch was stabbed to death in a public house in the city of Limerick. Two days later, in the early hours of the 18th February, the Appellant was arrested by Superintendent Michael J. Drudy who suspected that he was the person responsible for the death of Mr. Lynch. He was brought to the Garda Station in Ennis at about 3.10 am and detained there under the provisions of s.4 of the Criminal Justice Act 1984(hereafter "the 1984 Act"). The Appellant refused to answer any questions and said that he did not wish to see a solicitor at that time but would like one to be present the following morning. In these circumstances, Superintendent Drudy decided to suspend the questioning of the Appellant until the following morning and he was invited to sign a form consenting to the suspension of the questioning until 8.00 a.m. in accordance with s.4(6) of the 1984 Act. The Appellant declined to sign the form but the garda officers decided to allow him to rest in a cell until the following morning. In these circumstances, the Appellant having failed to consent in writing to the suspension of the questioning, the period of six hours” detention permitted by s.4 expired at 8.35 a.m. The Appellant, however, remained in custody and at 12.45 p.m. Superintendent Drudey purported to extend the period of detention for a further period of six hours. At 3.30 p.m., a formal identification parade was held at which a number of persons who had been present in the public house when the fatal stabbing occurred purported to identify the Appellant as the assailant. Shortly thereafter, the Appellant was charged with murder, brought before a special sitting of the District Court and remanded in custody until the 22nd February.

3

Following discussions with the staff of the office of the Respondent, Superintendent Drudy became aware of the possible legal invalidity of the detention of the Appellant at the stage when the identification parade had been held. He accordingly applied to the District Judge for the area for an order pursuant to s.10(1) of the 1984 Act for the rearrest of the Appellant. The Appellant was then released by order of the District Court, rearrested and again detained in custody. Further identification procedures were held at which he was again purportedly identified by a number of the witnesses.

4

The Appellant was returned for trial by the District Judge on a charge of murder. Included in the book of documents served on him were a number of statements relating to the identification parades held while he was in custody in Ennis Garda Station in the circumstances just described. The Appellant having been arraigned on the charge of murder before Costello J, as he then was, and a jury, pleaded not guilty to the charge. At the outset of the trial, (in November 1992) Mr. White, S.C., on behalf of the Appellant, submitted that the evidence as to the various identification procedures in Ennis Garda Station was inadmissible, since the Appellant, as he submitted, had been in unlawful custody throughout that period. Having heard submissions from counsel for the Respondent, the learned trial judge said that he was satisfied that the identification procedures had been held at a time when the Appellant was in unlawful custody. The first procedures had been held at a stage when the six hour period authorised by s.4 of the 1984 Act had expired. The second procedures had been held at a time when the Appellant was purportedly in custody on foot of an order of the District Court authorising his rearrest. The trial judge concluded, however, that s.10 had no application to a situation such as the present where a person had been released after having been charged and that, accordingly, the evidence relating to the second identification procedure was also inadmissible.

5

Counsel for the Respondent had indicated to the court that, in the event of the evidence as to the identification procedures in the Garda Station being ruled inadmissible, it was the intention of the prosecution to adduce evidence of identification by the relevant witnesses in the form of what was formerly known as a "dock identification", i.e. an identification by the witnesses in court of the Appellant. Mr. White having also objected to the admissibility of such a "dock identification", the trial judge decided that there was no legal bar to the adduction by the prosecution of such evidence, although the weight to be attached to it was a different matter.

6

The trial, accordingly, proceeded and seven witnesses identified the Appellant, then present in court, as the person whom they had seen assaulting Mr. Lynch on the night in question. At the conclusion of the prosecution's case, Mr. White submitted that the case should be withdrawn from the jury on the grounds that the identification evidence could not safely be relied on by the jury. The trial judge having rejected the application, and no evidence having been called on behalf of the Appellant, the jury were then addressed by counsel and charged by the trial judge. They unanimously found the Appellant guilty and he was sentenced to imprisonment for life.

7

The Appellant applied to the Court of Criminal Appeal for leave to appeal on the ground that the learned trial judge erred in law, or alternatively in the exercise of his discretion, in allowing the evidence of the witnesses in which they identified the Appellant in court as the assailant of Mr. Lynch to go before the jury. The Court of Criminal Appeal (O'Flaherty, Johnson and Morris JJ.) refused the application for leave to appeal but, pursuant to s.29 of the Courts of Justice Act 1924certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court from that decision. The point of law was stated as follows by the Court of Criminal Appeal:-

"Whether the learned trial judge should have withdrawn the case from the jury in the circumstances that the sole evidence connecting the accused with the offence of murder was the courtroom identification of seven witnesses who had previously identified the accused while he was in unlawful garda custody though there was nothing remiss in the manner in which these identification procedures were carried out, only the fact that the accused was in unlawful custody at the time."

8

On behalf of the Appellant, Mr. White submitted that, had not the constitutional right of the Appellant to be at liberty been infringed, the evidence on which the District Court had returned him for trial to the Central Criminal Court would not have been in existence. It followed, he said, that his appearance before the Central Criminal Court and the "dock identifications" by the seven witnesses were the fruit of a violation of his constitutional rights and, in the result, inadmissible in evidence. He cited in support of this submission the decision of this court in The State (Trimbole) v. Governor of Mountjoy Prison, [1985] IR 550.

9

Mr. White further submitted that the "dock identifications" were irremediably tainted by what had happened on the 18th and 22nd February 1991, since the witnesses were in reality relying on the identification which they had made in the Garda Station. Moreover, in the circumstances of this case, the "dock identifications" were artificial and...

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