DPP v Cunningham

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 24 May 2007
• Neutral Citation: [2007] IECCA 49
• Court: Court of Criminal Appeal
• Date: 24 May 2007

[2007] IECCA 49

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

Gilligan J.

91/06

DPP v CUNNINGHAM

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

v.

KENNETH CUNNINGHAM

Applicant/Appellant

DAWSON T/A A E DAWSON & SONS v IRISH BROKERS ASSOCIATION UNREP SUPREME 6.11.1998 1998/35/6302

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

Z v DPP 1994 2 IR 476

DPP v M (J E) (AKA M(S)) 2001 4 IR 385 2000/8/3053

PEOPLE (DPP) v WALSH 1980 IR 294

PEOPLE (AG & ANOR) v MCGRATH 1960 9 ILTR 59

DPP v COFFEY 1987 ILRM 727

DPP, PEOPLE v LYNCH 1982 IR 64

R v HAYDEN & SLATTERY 1959 VR 102

DPP v CONNOLLY 2003 2 IR 1 2003/14/3140

DPP v MURPHY 2005 4 IR 504 2005/21/4345 2005 IECCA 52

DPP v DIVER 2005 3 IR 270 2005/19/3919 2004 IEHC 434

CRIMINAL JUSTICE ACT 1984 (ELECTRONIC RECORDING OF INTERVIEWS REGS 1997) SI 74/1997

CRIMINAL JUSTICE ACT 1984 S27(4)

DPP v KIELY UNREP CCA 21/3/2001 2001/8/1883

CRIMINAL LAW

Evidence

Recognition evidence - Prosecution witness giving recognition evidence despite such having been ruled inadmissible - Whether gardai illegally entering accused's dwelling and that evidence obtained as result thereof inadmissible - Whether accused detained unlawfully and that evidence obtained thereby inadmissible - Publication of comments on proceedings on internet and jury's attention drawn thereto - Prosecution cross-examining hostile witness - Garda interviews not video recorded - Dawson v Irish Brokers Association (Unrep, SC, 6/11/1998) and Z v DPP [1994] 2 IR 476 applied, People (DPP) v Kelly (Unrep, CCA, 21/3/2001) considered - Criminal Justice Act 1984 (No 22), s 27 - Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (SI 74) - Appeal dismissed (2006/91CCA - CCA - 24/5/2007) [2007] IECCA 49

People (DPP) v Cunningham

1 JUDGMENT of the Court delivered the 24th day of May 2007 by Finnegan J.

2 The applicant was convicted of murder the particulars being that on the 24th December 2003 in the county of Louth he murdered one Laurence Garvey. The learned trial judge granted a certificate on one ground in the following terms:

"I do hereby certify that the case is a fit case for an appeal by the said Kenneth Cunningham to the Court of Criminal Appeal upon the following ground. 'Whether the judge erred in refusing to discharge the jury after the prosecution witness Gráinne Hearty gave recognition evidence despite such having been ruled inadmissible'."

3 The notice of appeal raised other grounds in respect of which leave to appeal is sought.

4 It is proposed to deal with each ground of appeal in turn.

Ground 1

5 Whether the judge erred in refusing to discharge the jury after the prosecution witness Gráinne Hearty gave recognition evidence despite such having been ruled inadmissible.

6 Ms. Hearty gave evidence in the course of a v oir dire. On the night of the 23/24 December 2003 she was staying at her mother's house in Dundalk. At about 12.15 a.m. on the 24th December she drove to the junction of The Laurels and Philip Street with the intention of performing a U-turn. She was driving with dipped headlights. At the junction in Patrick Street she saw one man jumping up and down on another who was lying on the ground and then kick him to the head. She did her U-turn and returned to her mother's house, got a blanket and drove back to assist the man lying on the ground. At the corner of Culhane Street and Philip Street she stopped intending to turn right. She saw "the man" on the corner of Culhane Street. She was asked in relation to that man was he the man she had seen earlier. She said it was the same man. She shouted to her mother "that's him". The man lifted up his arms and cheered. She described the man as five foot six or five foot seven inches tall with very dark hair cut short. He was muscular or tubby. He was wearing a round neck wine coloured long sleeve top with a design to the front, dark trousers more like jeans and dark shoes.

7 In cross-examination she said that her observation was momentary, but that she saw his face and would never forget the face.

8 Mapping evidence given at the trial was that it was fifty metres from the point where Ms. Hearty observed the assault to the place in Patrick Street where the assault occurred and that it would not be possible at that distance to recognise facial features.

9 At the conclusion of the voir dire the trial judge ruled that it was not open to the prosecution to call Ms. Hearty to identify the man she saw in Patrick Street with the man in court. She could, however, give evidence describing the man she saw in Patrick Street and the man she saw in Culhane Street leaving the matter of conclusions and inferences to the jury.

10 When Ms. Hearty was giving her evidence before the jury she said:

"I noticed the man on the corner of Culhane Street, the man that was jumping up and down in Patrick Street".

11 The defence objected and sought to have the jury discharged. The learned trial judge ruled that the description which the witness had given was a composite description comprising what she had seen in Patrick Street and at the corner of Culhane Street. That description was an error on her part in that it included facial features which she could not have seen in Patrick Street. It would be outside the earlier ruling if this description was tied only to what she had seen at Culhane Street. The witness should not be led in a way that tied the description which she had given in evidence to Patrick Street. The witness could not be asked to describe the man she saw in Patrick Street. The learned trial judge refused to discharge the jury. The appropriate way to deal with the situation, he ruled, was for a direction to be given to the jury to disregard the evidence of Ms. Hearty associating the man seen by her at the corner of Culhane Street as being the same man that she saw jumping on the other man on Patrick Street. The judge duly directed the jury as follows -

"It is important that I emphasise to you that there is no description from this witness of the man that was seen in Patrick Street. The description is of the man in Culhane Street. And I want to emphasise that to you, because it is something that is quite important. You are to approach the case on the basis that there is no evidence before you from Ms. Hearty linking the man she saw and described at Culhane Street with the man who she says she saw jumping on another man at Patrick Street. This is important and I must emphasise this point to you. In the first place there is no description from Ms. Hearty of the man at Patrick Street at all. Secondly, there is a description of a man at Culhane Street and this witness gave only one description of a man she saw that night. Thirdly, Mr. Cleary, the lighting expert, says one cannot see the face of a person, even with car headlights on, at Patrick Street from the vantage point that was the position of Ms. Hearty on the night so she couldn't have done it.

Next you may well recall that the witness says that the man at Culhane Street, when she sighted the man at Culhane Street, she turned and said to her mother in the car 'that's the man'. Now I am directing you that you may not treat this as evidence establishing through this witness that the two are the same, for the reasons which must appear clear having regard to the general principles I have already told you, and also what I have just said about Mr. Cleary.

First of all she did not give any description of the man she saw at Patrick Street. Second of all, she could not have done so in terms of the only description she gave at Culhane Street which included a detailed description of the man's face, impossible according to Mr. Cleary from her vantage point at Patrick Street. Third, it may be that she might herself have mistakenly imposed the features of the man that she saw at Culhane Street and the man that she saw earlier, because you will recall that in cross-examination she said about the man she saw at Patrick Street 'I will never forget his face' but on being pressed in cross-examination she said that referred to the man she saw that night, that is, the man she saw at Culhane Street.

You might well then ask, and this is 'just what is the prosecution's case in relation to the man at Patrick Street?' I'll just remind you that it is a circumstantial case. The prosecution do not say 'we have an eye witness'. They do not say 'we have forensic proof' like blood or fingerprints or anything else. It is a circumstantial case, based on the various circumstances and I won't detail them all to you, because I think I have alluded to them already in what I have said so far".

12 In a civil case Dawson and another v Irish Brokers Association Supreme Court 6th November 1998 O'Flaherty J. said -

"Even if inadmissible evidence gets in, the jury should be taken as likely to abide by the trial judge's ruling in all matters of law and by their oath to do essential justice between the parties."

13 Again -

"Once again, it is necessary to reiterate, as this court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge's ruling that something is irrelevant, or should not have been given before them, as well as in the face of adverse pre-trial publicity. See D v Director of Public Prosecutions [1994] 2 I.R. 465, Z v Director of Public Prosecutions."

14 In D v. Director of Public Prosecutions Finlay C.J. said -

"I...