DPP v Daly
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 10 November 2015 |
| Neutral Citation | [2015] IECA 241 |
| Docket Number | Appeal No. 230/2015 |
| Court | Court of Appeal (Ireland) |
| Date | 10 November 2015 |
[2015] IECA 241
THE COURT OF APPEAL
Bail – Conspiracy to defraud – Accomplice warning – Appellant seeking bail pending appeal – Whether the trial judge adequately put the defence case about the appellant”s status to the jury
Facts: The appellant, Mr Daly, was, on the 30th July, 2015, convicted in the Dublin Circuit Court of offences of furnishing incorrect information contrary to s. 1078(2)(a) of the Taxes Consolidation Act 1997, of an offence of conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990 and of the offence of conspiracy to defraud. On the 18th September, 2015, the appellant applied for bail pending the hearing of his appeal. On the 7th October, 2015, the Court of Appeal refused bail pending appeal, but the Court indicated that it was prepared to facilitate an early hearing. In refusing the bail application, the Court observed that of the seven grounds that had been relied on, the one that came closest to meeting the test in DPP v Corbally [2001] 1 IR 180 was the point argued in relation to the accomplice warning; the option of a renewed application for bail on the accomplice warning point was not excluded. The appellant renewed his application for bail. He was critical of the approach of the trial judge, submitting that the trial judge stated that he would give an accomplice warning, but then failed to do so. The appellant said that the judge never told the jury that it was dangerous to convict on the uncorroborated evidence of an accomplice, which he said is the absolute core element of the accomplice warning; because the trial judge did not tell the jury that it was dangerous to convict in the absence of corroboration, he did not explain to the jury what was meant by corroboration, nor did he address the question of whether there was any evidence capable of amounting to corroboration and either tell the jury that there was in fact no corroboration, as the appellant contended to be the position, or if the judge was of the view that there was evidence capable of amounting to corroboration and to draw the jury”s attention to that. The appellant was also critical of the trial judge for not putting adequately before the jury the basis for the defence”s contention that Mr Gillespie, a compliance officer with the Bank, was an accomplice, an actual participant in the crime.
Held by Birmingham J that he was not convinced that the complaint that the trial judge did not adequately put the defence case about Mr Gillespie”s status to the jury was a point of real substance; there was no evidential basis for the suggestion that Mr Gillespie was the source of information for the person in authority. The Court did not believe that there was an obligation on the trial judge to repeat the defence”s submissions, which were essentially an invitation to the jury to speculate. The Court accepted that the issue raised about the need for an accomplice warning and the adequacy of what was actually said by the judge, by way of warning, was a significant one. The Court concluded that the Corbally threshold had not been crossed by the appellant.
Birmingham J held that he did not regard it as appropriate to admit the appellant to bail in a situation where an early appeal had been provided and where that appeal was listed for hearing.
Appeal dismissed.
As referred to in the course of a ruling of this Court on the 7th October, 2015, Mr Daly was, on the 30th July, 2015, following a lengthy trial, convicted in the Dublin Circuit Court of offences of furnishing incorrect information contrary to s, 1078(2)(a) of the Taxes Consolidation Act 1997, of an offence of conspiracy to commit an offence contrary to s. 243(1) of the Companies Act 1990 and of the offence of conspiracy to defraud.
On the 18th September, 2015, the applicant applied for bail pending the hearing of his appeal. The original application for bail was grounded on a very lengthy and comprehensive affidavit sworn by Mr. Daly's solicitor, amounting to some 98 paragraphs. On the 7th October, 2015, this Court refused bail pending appeal, but the Court indicated that it was prepared to facilitate an early hearing, and indeed the hearing of the appeal of Mr. Daly and of the co-appellant, Mr. O'Mahoney, is listed for hearing on the 11th day of January, 2016. In refusing the bail application on the 7th October, 2015, the Court observed that of the seven grounds that had been relied on, the one that came closest to meeting the Corbally test (DPP v. Corbally [2001] 1 I.R, 180) and the only one that in truth was likely to ever come close was the point argued in relation to the accomplice warning. It was stated for that reason when the transcript became available that the option of a renewed application for bail on the accomplice warning point was not excluded,
The transcript has now become available and Mr. Daly has renewed his application for bail. So far as the accomplice warning point is concerned, it is necessary to bear in mind that the real issue at the trial of Mr. Daly was whether the prosecution was in a position to prove that Mr. Daly knew that the list that he handed over to the Revenue authorities was incomplete. Evidence in that regard came from Mr. Brian Gillespie, a compliance officer with the Bank. In the course of his evidence on days thirteen and fourteen of the trial, Mr. Gillespie described having a brief conversation with Mr. Daly in a doorway during the course of which the applicant is alleged to have asked Mr. Gillespie if he would delete an account from the list in preparation for Revenue if requested to do so by a named person in a position of authority and to that inquiry Mr. Gillespie responded "No".
The defence say that Mr. Gillespie was an absolutely critical witness and indeed say that he provided the only evidence to suggest that Mr, Daly was a party to the conspiracy. The prosecution are firm in rejecting the suggestion that Mr. Gillepsie's evidence was the only evidence, but there can be no doubt that Mr. Gillespie was a very significant witness indeed. The defence say that Mr. Gillespie'e evidence requires an accomplice warning.
On behalf of the applicant, Mr. Daly, it is said that an accomplice warning was required in circumstances where Mr. Gillespie had acknowledged during cross examination that he played a leading role in interacting with Revenue in relation to an earlier audit in the late 1990s. In cross examination it was suggested to him that he had obstructed and misled the Revenue in relation to an early 2003 court ordered audit. In the course of that cross examination he accepted that the terms of the court order required the account that was central to the prosecution to be returned, the account of John Peter O'Toole, but that it was not on the list as submitted, though it was furnished at a later stage. He told the jury that he had instructed a colleague to remove the account from the list as originally submitted. It was suggested to him in cross examination that in acting as he did, that he had in fact committed the same offence, concerning the same bank account, as the one for which Mr. Daly had been put on trial, He rejected that suggestion.
A further issue is raised in relation to events that occurred on the 12th November, 2003. On that day there was a meeting between senior bank staff and Revenue officials. During the meeting, which began at 10.00 am, the Revenue officials outlined their intentions for the audit including the plan to examine all non resident accounts with a balance over €100,000. At one stage the meeting was suspended and the Revenue personnel were brought on a walk through tour of the deposit taking desks at the bank. A Revenue memorandum in relation to the events of the day suggested that everyone who had been at the meeting, other than Mr. Gillespie, went on the walking tour. After the walk through, the meeting resumed at 11.30 am. The significance of this is that the bank's email records show that the personal assistant to the person in authority sent an email that morning to the co-accused, Tiaman O'Mahoney, passing on the bank account numbers of John Peter O'Toole. This email was timed at 11.33 am.
In his closing speech to the jury, Mr, Guerin S.C., counsel for the applicant, suggested that as Mr. Gillespie was not a participant on the walk through tour that he was the person who had alerted the person in authority to what was being proposed by the Revenue, thus precipitating the 11.33 am email.
Before the trial judge commenced his charge to the jury, the various parties were given an opportunity to raise matters of concern with him. Counsel for the applicant did so in these terms:-
"I say that a similar warning should be given in respect of the evidence of Mr. Gillespie [accomplice warning, a similar request having been made by counsel for Mr. O'Mahoney]."
"In respect of Mr. Gillespie, on the basis that if the prosecution case is that the email that was sent at 11.32 am on the morning of the 12th November, was sent in response to information that came out of the meeting that morning, on the evidence, Mr, Gillespie was the only person who had been at that meeting who was not on the walk through visit and therefore that puts him in the picture in terms of participating in the actual conspiracy itself. And he is also someone who on the evidence in my respectful submission, even if he wasn't an accomplice in the actual offence would still require a warning on grounds of credibility generally because there is evidence that he mislead the Revenue Commissioners in 1999 and in 2002. There is evidence by his own admission that he interfered with the list that was...
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