DPP v Cummins
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 23 March 2017 |
| Neutral Citation | [2017] IECA 138 |
| Docket Number | 303/15 |
| Court | Court of Appeal (Ireland) |
| Date | 23 March 2017 |
[2017] IECA 138
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Mahon J.
Edwards J.
303/15
Conviction – Murder – Co-accused – Appellant seeking to appeal against conviction – Whether judge erred in law and in fact in refusing an application that the appellant should be tried separately from her co-accused
Facts: The appellant, Ms Cummins, in October/November 2015, stood trial alongside her brother Mr Cummins, charged with the murder of Mr Horan. Following her conviction for murder she appealed to the Court of Appeal against conviction on the following grounds: 1) The judge erred in law or in fact or in a mixed question of law and fact in refusing an application that the appellant should be tried separately from her co-accused; 2) The trial judge wrongly coerced the appellant to continue giving evidence during the trial including doing so by means of “threats” in relation to the consequences for the appellant of her failing to continue with her evidence; 3) The judge erred in law or in fact or in a mixed question of law and fact in failing to direct the jury that the plea of guilty entered by her co-accused to the charge of murder was positively supportive of her case being that it was her co-accused and not the appellant who had caused the death of the deceased and that the said plea of guilty vindicated the admissions made by her co-accused in the course of his Garda interviews.
Held by the Court that, concerning ground 1, the trial judge was entirely correct in refusing the application as this was quintessentially a case for a joint trial; the fact that the prosecution case was one of joint enterprise, that both accused were present at the same time, strongly militated in favour of a joint trial. Concerning ground 2, the Court held that the judge’s remarks, while undoubtedly blunt, were designed to impact on Ms Cummins’ conduct, were designed to protect the integrity of the trial and they resulted in Ms Cummins resuming her evidence, something which she was always obliged to do. The Court held that, regarding ground 3, the judge correctly identified that this was not a case of defendants mounting a joint defence so that the withdrawal of one from the joint position served to fatally undermine the other. In those circumstances, the Court held that it was entirely appropriate for the judge to invite the jury to focus on the remaining accused, Ms Cummins. The Court noted that this did not preclude other parties formulating and advancing such arguments as they wished or drawing such comfort as they wished but it was not for the judge to endorse any such conclusions.
The Court held that the appeal against conviction should be dismissed.
Appeal dismissed.
In October/November, 2015 the appellant stood trial alongside her brother Kenneth Cummins, charged with the murder of Thomas Horan. Following a conviction for murder she has now appealed. The trial was concerned with events that occurred at Cambridge Court, Ringsend in Dublin. The deceased, a gentleman of mature years, lived alone in a form of sheltered accommodation, living in a modest one-bedroom apartment. On 6th January, 2014 persons entered his apartment and at trial it was not seriously in issue, but that those who entered were the co-accused. Multiple serious injuries were inflicted on the deceased which proved fatal. Following her conviction the appellant has brought this appeal. Some 13 grounds of appeal were set out in the formal written notice of appeal though not all of those have been elaborated upon either in written or oral submissions.
The original grounds of appeal were as follows:
Ground 1: The judge erred in law or in fact or in a mixed question of law and fact in refusing an application that the appellant should be tried separately from her co-accused. This ground of appeal was not initially pressed when the appeal was opened this morning but was referred to at the reply stage.
Ground 2: The judge erred in law or in fact or in a mixed question of law and fact in failing to direct the jury that the plea of guilty entered by her co-accused to the charge of murder was positively supportive of her case being that it was her co-accused and not the appellant who had caused the death of the deceased, Thomas Horan, and that the said plea of guilty vindicated the admissions made by her co-accused in the course of his Garda interviews. This ground of appeal formed a significant part of today's proceedings.
Ground 3: The judge failed properly to charge the jury in relation to the fact that the allegations made by her co-accused against the deceased, Thomas Horan, were not any part of her case and that she in fact specifically disavowed any such allegation. This ground is linked to the severance separate trial issue.
Ground 4: The trial judge wrongly coerced the appellant to continue giving evidence during the trial including doing so by means of ‘threats’ in relation to the consequences for the appellant of her failing to continue with her evidence. This, alongside Ground 2 which related to the entry of the plea of guilty, formed the core of the appeal this morning.
Then, on the original notice of appeal there were what, in the light of what has transpired subsequently, might be described as subsidiary grounds as follows:—
Ground 5: The trial judge misdirected the jury in relation to the issue of corroboration in that he:—
I. Failed properly to charge the jury in respect of the absence of corroboration of the appellant's guilt and in particular in relation to the significant absence of forensics and/or DNA evidence linking the appellant to the death of the deceased, Thomas Horan.
II. Directed the jury that CCTV footage was capable of constituting corroboration of the prosecution case against the appellant in circumstances where the footage merely placed the appellant at the scene of the death of the deceased, which she had not denied, and further in circumstances where the footage was said to be potentially corroborative of a particular prosecution theory in relation to the facts which was contradicted by other evidence in the case.
III. Directed the jury that they could treat as being corroborative of the prosecution case the fact that the deceased, Thomas Horan, was a man who did not consume alcohol and that there was evidence of alcohol having been consumed at his home on the basis that this belied the appellant's account that she had gone to the home of the deceased with an innocent intention. This was not capable of constituting corroboration of the prosecution case as the appellant had stated in a Garda interview that the deceased, Thomas Horan, did not consume alcohol and she stated that she had gone to his home with alcohol and that she had consumed same. This was not inconsistent with her explanation of a visit with an innocent intention.
IV. Placed excessive emphasis on the fact of alcohol having been consumed in the home of the deceased, Thomas Horan, on the night of his death.
V. Failed adequately, or at all, to deal in his charge with the unchallenged evidence that the appellant and the deceased, Thomas Horan, had a long-standing friendship and of the presence of certain personal effects of the appellant in Mr. Horan's apartment, all of which was consistent with a social history between the appellant and Mr. Horan which accorded with the defence case.
VI. Failed adequately, or at all, to deal in his charge with evidence which was ‘uncorroborative’ of the prosecution case and to charge the jury in relation to the effects of same. This included evidence which undermined the prosecution theory of the appellant participating in a murder to ‘cover up’ a robbery of the deceased, Thomas Horan, to wit evidence of (i) money being found in Mr. Horan's apartment after his death (ii) the fact that the appellant's co-accused did not refer to money as in the ‘prison phone call’ put in evidence in the trial and (iii) the fact that the appellant was due to meet a friend to give her money on the date of her arrest.
Ground 6: The judge erred in law or in fact or in a mixed question of law and fact in failing to charge the jury in relation to the unreliability of admissions made by the appellant in her Garda interviews and in her evidence, particularly having regard to admissions made by her which were demonstrably false. This error was exacerbated by the fact that the trial judge not having dealt with the evidence of the appellant at all in his charge, did not recharge the jury after they requested that the appellant's evidence be read to them following the conclusion of the charge.
Ground 7: The judge erred in law or in fact or in a mixed question of law and fact in failing to direct the jury – particularly after reading, at their request, the appellant's evidence – that they ought to acquit the appellant if they found that (a) the appellant did not participate in a joint enterprise with her brother the co-accused and that (b) the appellant's actions did not contribute to the death of the deceased.
Ground 8: The judge erred in law or in fact or in a mixed question of law and fact in charging the jury in a manner which was imbalanced in favour of the prosecution and which failed fairly to put the defence case to the jury and which omitted matters crucial to the defence case, including with reference to evidence from prosecution witnesses which was supportive of the defence case and which was not treated of by the trial judge in his summary of the evidence.
Ground 9: The judge erred in law and in fact in failing to inform the jury in respect of the content of the appellant's statements in answers to questions put by the Gardaí:—
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