DPP v Coughlan Ryan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] IECA 108 |
| Date | 30 March 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 108 Record No.: 37/2014 |
[2017] IECA 108
Mahon J.
Mahon J.
Edwards J.
Hedigan J.
Neutral Citation Number: [2017] IECA 108
Record No.: 37/2014
THE COURT OF APPEAL
Conviction – False imprisonment – Failure to discharge jury – Appellant seeking to appeal against conviction – Whether trial judge erred in law in failing to discharge the jury when requested by the defence following the evidence of a prosecution witness
Facts: The appellant, Mr Ryan, was convicted at Limerick Circuit Criminal Court on 24th October, 2013 on two counts of false imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act 1997. The appellant was sentenced on 28th January, 2014 to concurrent sentences of eight years and three months. The sentences were directed to be served consecutively to a two year prison sentence imposed in Castlebar Circuit Court on 21st January, 2014. The appellant appealed to the Court of Appeal against his conviction on three grounds: (i) the trial judge erred in law in failing to discharge the jury when requested by the defence following the evidence, before the jury, of a prosecution witness that the appellant had been in prison previously and to the effect that the appellant had previous convictions; (ii) the judge erred in law and in fact in failing to sufficiently contextualise the warning pursuant to AG v Casey (No. 2) [1963] IR 33 in respect of identification evidence upon which the prosecution relied wholly or substantially; (iii) the appeal against conviction should be allowed as the verdict remained unsatisfactory as the evidence indicated a significant reasonable risk that the prosecution witness, Mr Cusack, was informed in advance of the identification parade or after the parade in advance of the trial, that the appellant would be participating or had been a participant in the parade which rendered the evidence at trial valueless in the context of a prosecution which was reliant wholly or substantially on the correctness of the identification evidence.
Held by the Court that the prejudicial effect of the words spoken by a prosecution witness, Ms Troy, was significant; in particular, the fact that Ms Troy’s remarks were, in effect, a reference to the appellant having been in prison more than once was of considerable concern as it created a real risk that the jury would, notwithstanding the strength of any judicial instruction to the contrary, approach its consideration of a verdict on the basis either that the appellant was not a person of previous good character or had been to prison on more than one occasion for serious offences. The Court also noted that Ms Troy’s inadmissible evidence came at a very late stage in a very lengthy trial and shortly before the jury retired to consider its verdict, so that the matter may still have been fresh in their minds.
The Court held that in the circumstances the jury ought to have been discharged in the wake of Ms Troy’s inadmissible evidence. The Court therefore allowed the appeal on ground (i) and quashed the appellant’s conviction. The Court proceeded to hear submissions as to whether or not a retrial was to be ordered.
Appeal allowed.
The appellant has appealed his conviction at Limerick Circuit Criminal Court on 24th October, 2013 on two counts, namely:
(1) Count 1; False imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act, 1997, and
(2) Count 2; False imprisonment contrary to s. 15 of the Non-Fatal Offences against the Person Act, 1997
The conviction followed a 14 day trial and a unanimous jury verdict.
The appellant was sentenced on 28th January, 2014 to concurrent sentences of eight years and three months. The sentences were directed to be served consecutively to a two year prison sentence imposed in Castlebar Circuit Court on 21st January, 2014.
In summary, the background facts are as follows; overnight on the 19th/20th August, 2012 two men, Stephen Cusack and Niall Reddan, were falsely imprisoned at an address in Castletroy, County Limerick by three men including the appellant. The hands of both men were tied with cable ties and they were gagged. They were then taken to a derelict house near Ballyclough in County Limerick where Mr. Redmond was released. Mr. Cusack was then taken to a field at Donoughmore, County Limerick from where he made good his escape.
The prosecution case was that it was intended to hold Mr. Cusack for ransom in order to facilitate a robbery of a post office in which Mr. Cusack's mother was employed.
The prosecution case relied on recognition evidence by Mr. Cusack at an identification parade at Henry Street Garda Station on 29th August, 2012 based on his view of the appellant on the evening of the offence.
The appellant's grounds of appeal, including the third ground which he belatedly sought leave of the Court to add, are as follows:
(i) The learned trial judge erred in law in failing to discharge the jury when requested by the defence following the evidence, before the jury, of a prosecution witness that the appellant had been in prison previously and to the effect that the appellant had previous convictions.
(ii) The learned trial judge erred in law and in fact in failing to sufficiently contextualise the warning pursuant to AG v. Casey (No. 2) [1963] I.R. 33 in respect of identification evidence upon which the prosecution relied wholly or substantially.
(iii) The appeal against conviction should be allowed as the verdict remains unsatisfactory as the evidence indicates a significant reasonable risk that the prosecution witness, Stephen Cusack, was informed in advance of the identification parade or after the parade in advance of the trial, that the appellant would be participating or had been a participant in the parade which renders the evidence at trial valueless in the context of a prosecution which is reliant wholly or substantially on the correctness of the identification evidence.
No issue was taken by the respondent on the application to add the ground of appeal, and the appeal proceeded on that basis.
Oral submissions were heard in respect of the first ground only, and this judgment relates only to that ground.
In the course of examining a witness, Ms. Troy, on the twelfth day of the trial prosecuting counsel asked her:-
‘And can you remember any particular night upon which that happened?’, to which she responded, ‘I don't. He was over and back as I told you when he got out…’
In the course of her evidence Ms. Tara Troy confirmed that she knew the appellant, and pointed him out in court. She was then asked:
‘Q. … and do you remember when you first came across Zachary Coughlan?
A. I do.
Q. When was that?
A. Whenever he got out of jail the last time.’
Prior to this point in the trial, the jury was unaware that the appellant had any previous record or had been imprisoned. In fact, the appellant had been in prison on more than one occasion. Following upon this evidence being given to the jury, counsel for the appellant applied to the learned trial judge to discharge the jury. He refused that application, stating,
‘There is an application now to discharge the jury on the basis that the … last civilian witness, Ms. Troy, said that she first got to know the accused the last time he came out of prison. Well this was evidence given by Ms. Troy who is a witness for the prosecution. She was on the book of evidence, but was not going to be called for the prosecution, but was called at the instigation of the defence. That is the first point. Secondly, this matter was said by Ms. Troy, not as – it was an answer which was not invited by the prosecution. It was an answer that came from her at no invitation of the prosecution. And accordingly I will not discharge the jury. I will tell the jury of course that it is irrelevant. And that it is a matter that they should not take into account and I expect that they will not take it into account, just as much a judge who knows about these matters does not take it into account either.’
The learned trial judge added,
‘I want to keep the jury’.
The basis for the application to discharge the jury was that their minds had been tainted by Ms. Troy's revelation of the fact that the appellant had previously been in prison on more than one occasion, and that such evidence was seriously...
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