DPP v Creed

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IECCA 95
• Court: Court of Criminal Appeal
• Date: 31 July 2009

[2009] IECCA 95

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

Budd J.

Edwards J.

Record No. 161/2008

DPP v Creed

[2009] IECCA 95

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

GLEN CREED

Appellant

R v GALBRAITH 1981 1 WLR 1039

DPP v CRONIN (NO 2) 2006 4 IR 329

DPP v HEALY 1990 2 IR 73

DPP v BUCKLEY 2002 2 IR 268

DPP v O'BRIEN 2005 2 IR 206

DPP v MCCREA UNREP EDWARDS 28.1.2009 2009 IEHC 39

CRIMINAL JUSTICE ACT 1984 S4

DPP v KENNY 1990 2 IR 110

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990

CRIMINAL LAW

Evidence

Admissibility - Constitutional right of access to solicitor - Applicant not informed that gardaí failed to make contact with solicitor - Hair sample taken from applicant's head for DNA analysis - Whether deliberate and conscious violation of rights - Discretion of trial judge as to whether particular evidence obtained should be admitted or not - Whether applicant required solicitor where hair sample could be procured without consent - People v Healy [1990] 2 IR 73, People v Buck [2002] 2 IR 268, People (DPP) v O'Brien [2005] IESC 29, [2005] 2 IR 206, People v McCrea [2009] IEHC 39, (Unrep, Edwards J, 28/1/2009) and People v Kenny [1990] 2 IR 110 considered - Criminal Justice Act, 1984 (No 24), s 4 - Criminal Justice (Forensic Evidence) Act 1990 (No 34) - Whether case should have been withdrawn from jury - Significant gaps in chain of evidence - Whether trial judge correct in allowing evidence go to jury - Whether open to jury to convict - R v Galbraith [1981] 1 WLR 1039 applied - Whether any defect in trial judge's charge to jury - No requisitions made at trial - People (DPP) v Cronin (No 2) [2006] 4 IR 329 applied - Leave to appeal refused (161/2008 - CCA - 31/7/2009) [2009] IECCA 95

People (DPP) v Creed

Facts: The applicant was convicted of offences relating to robbery and the use of a mechanically propelled vehicle. The issue arose on appeal as to whether there were significant gaps in evidence such that the case should have been withdrawn from the jury and whether the Gardai deprived the applicant of his constitutional right of access to a solicitor thereby rendering his detention unlawful and whether the treatment of exhibits including clothing was significant for DNA evidence purposes. An issue arose as to the admissibility of hair samples.

Held by the Court of Criminal Appeal (Geoghegan J; Budd and Edwards JJ) That there was no deliberate and conscious violation of constitutional rights. It was a matter of discretion for the trial judge to rule upon the admissibility of the evidence. Given that under the Criminal Justice (Forensic Evidence) Act 1990 that a hair sample could have been procured without consent, it would have been reasonable to assume that the applicant did not require a solicitor. The learned trial judge conducted a fair trial and his rulings were in order. Leave to appeal would be refused.

Reporter: E.F.

1 Judgment of the Court delivered by Mr. Justice Geoghegan on the 31st day of July 2009

2 The above-named applicant was convicted in Naas Circuit Court of two offences i.e. robbery and unauthorised use of a mechanically propelled vehicle. While there is some ambiguity in the notice of application for leave to appeal to this court as to whether the appeal sought is against both convictions, the reality is that only the proposed appeal against the robbery conviction was pursued in court.

3 There are a number of grounds in the proposed appeal but for all practical purposes, there were three issues raised and argued.

4 1. That the case should have been withdrawn from the jury because allegedly, there were significant gaps in the chain of evidence and that the jury in convicting must necessarily have engaged in speculation.

5 2. That the Garda Síochána deprived the applicant of his constitutional right of access to a solicitor thereby rendering his entire detention unlawful and the procuring of any evidence during that detention inadmissible.

6 3. That the trial judge erred in the manner in which the jury were directed but in particular in relation to how they should treat exhibits including clothing which in turn was significant for the purposes of DNA evidence.

7 This court has found no difficulty in rejecting the application in so far as it is based on the first and third of those issues. The second requires more careful and nuanced consideration.

8 With regard to the first issue, it was not in dispute that there were gaps in the chain of evidence but there was strong circumstantial evidence against the applicant and the court would reject the proposition that the jury would not have been entitled to convict upon that evidence and in particular that the jury in convicting would have had to engage in speculation. A neat summary of the salient facts was contained in the written submissions of the respondent. That summary reads as follows:

"The evidence before the court had established that a man wearing dark clothes, variously described as a dark tracksuit, had participated with other men in the robbery at the Ambassador Hotel on the morning of the 21 ^st October, 2006. During the robbery two members of staff, Daragh Byrne and Filip Miller, were attacked and injured. Daragh Byrne sustained an injury to his right eyebrow area which required stitches… Filip Miller was stabbed in the back and also required stitches.

The robbers were seen fleeing the scene in a Jaguar XK8 car registration number 00D107 174. That car was found crashed on the Blessington Road after 11 a.m. that morning. A man who identified himself as Anthony Creed of Bawnlee, Tallaght… was taken from that car and was described at that location as wearing a dark tracksuit by Joseph Hobson …, Paul Mulraney … and as wearing dark clothing by Tony Gregg … It is common case that this man was in fact the appellant, Glen Creed. He was transferred by ambulance to Tallaght Hospital. Sinead Creed, the appellant's sister, was given a bag of clothing at Tallaght Hospital by an unidentified member of staff at Tallaght Hospital. Later that day she took that bag from the boot of her sister's car and handed it to D/Garda Eddie Trant. The clothing retrieved from the bag consisted of a dark jacket … a grey Reebok sweatshirt, a yellow and grey tee-shirt and black tracksuit bottoms, together with a pair of black socks,… and which it is submitted amounts to an outfit.

The dark jacket was analysed and found to contain blood...