DPP v Cullen

 
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[2015] IECA 4

THE COURT OF APPEAL

Ryan J., Birmingham J., Edwards J.

The People at the Suit of the Director of Public Prosecutions
Respondent
V
Joseph Cullen
Applicant

145/2011 - Ryan Birmingham Edwards - Court of Appeal - 20/1/2015 - 2015 IECA 4

Sentencing – Causing serious harm – Appeal against conviction and sentence – Applicant seeking to appeal against conviction and sentence – Whether trial judge erred in refusing to grant a direction

Mr. Justice Edwards.
Judgment of the Court delivered on the 20th of January 2015 by Mr. Justice Edwards.
1

This is a case in which the applicant was convicted by the unanimous verdict of a jury on the 3rd of November 2010, following a five day trial in the Circuit Criminal Court, of causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act, 1997.

2

The case was concerned with an alleged assault by three men, who were said to have been acting in joint enterprise, one of whom was alleged to be the applicant, on a Mr Kevin Byrne in the early hours of the morning of the 2nd of March 2008 at St Helena’s Road in the Dublin suburb of Finglas. The injured party suffered a number of injuries in the incident, the most serious of which were injuries to his right lower leg and foot, ultimately necessitating the amputation of his right foot on the 13th of March 2008.

3

Following his conviction, the applicant was sentenced on the 20th of December 2010 to imprisonment for twelve years for the offence in question, backdated to the date on which he went into custody.

4

The applicant appeals against both his conviction and sentence.

Evidence before the jury

5

The injured party is the managing director of a company business. On the night of the 1st of March 2008 he was attending a company function at a bar in Leeson St in Dublin city along with other staff members. The function continued until 2.30am or 3.00 am on the 2nd of March 2008, following which some staff members went on to a nightclub. The injured party, however, decided to go home and he arranged to share a taxi with two other staff members, Warren Edgely and Jackie White who, like the injured party, were going northside.

6

The taxi proceeded first to Beaumont where Warren Edgely was dropped off at his home, and it then proceeded to Finglas where Jackie White was in turn to be dropped off at her home, and it was intended that the taxi would ultimately proceed from Finglas to Swords so that the injured party could be dropped off last at his home.

7

When the taxi pulled up outside Jackie White’s home at 13 Hazelcroft Road, Finglas south, the injured party required to use the bathroom. The taxi driver, although requested to do so, was unwilling to wait outside, and so the injured party paid the taxi fare and went into the house with Jackie White. It was a cold night and Jackie White had difficulty putting the key into the door. She kept dropping it, and the injured party picked up the key and helped her in the door.

8

The injured party’s evidence was that he had had about five bottles of Corona beer over the course of the night out. He also testified that Jackie White “had some drink taken but was not falling down drunk.” However, Jackie White stated in her own evidence that she was “very drunk”.

9

The injured party and Jackie White proceeded into the house. The injured party went into a room off the entrance hall and sat down on a settee whilst Jackie White proceeded upstairs. The injured party’s evidence was that Jackie went upstairs to use the bathroom first. It was put to the injured party in cross-examination, and it was subsequently confirmed in the evidence of Jackie White, that there was no bathroom upstairs. The injured party responded “I don’t know the layout of the house. She said she was going up the stairs to use the bathroom so I assumed that the bathroom was upstairs.”

10

The injured party told the jury that about 10 or 15 seconds after he sat down there was a very loud bang at the front door, and he thought that somebody was kicking the front door. Jackie White came “probably halfway down the stairs” and enquired as to what the bang was. There was then another large crash or bang at the front door. The door opened and a man came in. The injured party described the man as wearing an orange padded jacket; as being the same height as himself – about six foot; as wearing “kind of like a skull cap” and as looking “very gaunt around the face”.

11

The injured party could not say if Jackie had opened the door or if the door was kicked open, all he could say was that the door had opened. However, under cross examination he stated he assumed that Jackie had opened the door. Jackie White subsequently told the jury that the man in question was her ex-boyfriend Joseph Cullen; that he came into the house under his own steam; that she did not open the door for him; that she did not remember any bangs; and that he must have had a key.

12

In the course of being interviewed by the Gardai while being detained under s.4 of the Criminal Justice Act, 1984, the applicant admitted that it was he who had entered the house, and that he had had a key.

13

The injured party stated in evidence in chief that when the man in the orange padded jacket came in, he looked at him and roared at him two or three times. He stated that the man looked incensed. The injured party denied a suggestion later put to him in cross-examination that he had been kissing Jackie White just prior to this.

14

The injured party’s evidence was that the man in question then ran over towards Jackie White who was over by the kitchen doors, and that Jackie said “It’s only Kevin from work”. The evidence was that the man then went through the double doors into the kitchen and that Jackie followed him. The injured party stated that he then heard a cutlery drawer being opened, and Jackie roaring, in a terrified manner, “No, Joey. Run, Kevin”.

15

The injured party got up and ran from the house. He ran out the front door and turned left on to the road. At this point he heard the man who had been called “Joey” running after him. He was shouting out the injured party’s name. The injured party kept running. He had crossed to the other side of the road and then stopped and turned around and faced his pursuer. The man in question was on the other side of the road and was shouting “I’m going to get you, I’m going to …”.

16

The injured party told the jury that he turned and ran again, in the direction of Hazelcourt Green, which was a small green area at the top of the road along which he was running. He stated “I made it to the edge of it when I was hit from behind by a car and I went rolling for about 30/40 feet on to that green area”. His evidence was that he was knocked to the ground and then was rolling. A car then came up behind him. He stated “three men came from that car, including the man who had been wearing the orange padded jacket, and they proceeded to beat me on the ground”. In cross-examination the injured party clarified that he didn’t see the three men actually exiting the car. He saw them coming from the direction of the car.

17

The man in the orange jacket “came from the side of the car with two other men”, and they punched and kicked the injured party while he was on the ground. He was trying to curl up to stop the beating, which he characterised under cross-examination as “vicious”. He was punched in the face, as a result of which he sustained a chipped front tooth, and was kicked at random. It seemed to him to last a long time.

18

The injured party’s evidence was that his assailants stopped momentarily and he then got up and started running again. He ran onto a road, and 10 -15 seconds later he was hit by a car again. He recalled being flipped up in the air and coming down and landing on the ground. His evidence was that when he landed on the ground his legs were under the car, which was pinned right up against him. Under cross-examination he elaborated “The car didn’t come towards me and strike me. It struck me up in the air and drove on top of me.”“It drove over my legs”. The injured party felt as if he had lost his right leg. He had complete numbness from the bottom down and shooting pains. Every part of him was sore, but he was particularly conscious of right leg.

19

The injured party told the jury that the three men got out of the car again. He was unable to say from what doors they emerged. They appeared around by the side of the bonnet of the car. One of them was “the man with the orange puff jacket”, who he recognised and knew to be “Joey” having seen him, and having heard his name, in Jackie White’s house. The other two men were wearing dark coloured clothes. The injured party pleaded with them not to attack him again. One of them then said “Leave him alone, he’s had enough”. The three men then got back into their car, the car reversed quickly and “did a kind of a U-turn or spin in the road” and drove off in the direction of St Helena’s Road.

20

It was suggested to the injured party in cross-examination that one, or perhaps two, of the men were not in the car and that they could have come from behind the car. The injured party stated: “I don't know. There was three I was hit, I was upside down, I was still conscious. The car stopped, the doors opened and there was three people standing either side of the wheel arches or beside the door of the car.”

21

Returning to the narrative, the evidence was that the injured party then contacted 999 on his mobile phone but was unable to give the emergency services his exact location. Eventually a passer-by who was walking a dog came to his assistance and that person was able to specify the location for the emergency services. The injured party...

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