DPP v Dk and Mk

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 09 February 2021
• Neutral Citation: [2021] IECA 32
• Docket Number: Court of Appeal No.: 302/18 & 303/18
• Court: Court of Appeal (Ireland)
• Date: 09 February 2021

Between:

The Director of Public Prosecutions

Appellant

and

DK and MK

Respondents

[2021] IECA 32

Birmingham P.

McCarthy J.

Murray J.

Court of Appeal No.: 302/18 & 303/18

THE COURT OF APPEAL

CRIMINAL

Retrial – False imprisonment – Interests of justice – Appellant seeking a retrial – Whether it would be in the interests of justice to direct a retrial

Facts: The respondents, on 13 November 2018, following a trial lasting six days at the Circuit Criminal Court in Limerick, were found not guilty by direction of the trial judge of (in the case of the first respondent) two counts of false imprisonment, and (in the case of the second respondent) a single count of false imprisonment, these offences being contrary to s. 15 of the Non-Fatal Offences Against the Person Act. The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal pursuant to the provisions of s. 23 of the Criminal Procedure Act 2010. The Director relied upon the following errors of law: having ruled that statements made by the first respondent ought to be admitted in evidence under s. 16 of the Criminal Justice Act 2006 in circumstances where the said respondent’s failure to answer questions created an unfairness of such a nature as warranted the withdrawal of the charges from the jury; the said decision of the trial judge was inconsistent with the terms of the said s. 16.

Held by the Court that the fact that any trial directed would be the third, the fact that that third trial would be taking place at the earliest six years after the events giving rise to the prosecution, the fact that in the intervening period the first respondent had lost a potential advantage in defending the case by reason of his intervening conviction, the particular circumstances of the second respondent and the consideration that all of this had occurred because of the refusal of the only victim of the alleged offence to give evidence at the second trial, combined to render this a case in which it would not be in the interests of justice, all things considered, to direct a retrial.

The Court held that, while noting the error in the trial judge’s decision to grant a direction, the appeal should be refused.

Appeal refused.

JUDGMENT of the Court delivered by Mr. Justice Murray on the 9 ^th day of February 2021

1 . On 13 November 2018 and following a trial lasting six days at the Circuit Criminal Court in Limerick, DK and MK were found not guilty by direction of the trial Judge of (in the case of DK) two counts of false imprisonment, and (in the case MK) a single count of false imprisonment, these offences being contrary to s.15 of the Non-Fatal Offences Against the Person Act. The alleged victim of the alleged false imprisonment was one DC. The case had originally commenced in November 2016 when, for procedural reasons, it was aborted after DC gave evidence but before he was cross examined.

2 . The prosecution case was that on 14 September 2015 A (M K's son) together with DK lured DC (who was eighteen years of age at the time) from his home to a location known as ‘Caledonian Park’ or ‘Cat's Field’ from where he was taken to MK's house. DC was, the prosecution said, detained at both locations. It was the prosecution case that A and DK were the persons who detained him at Cal's Field where, it was alleged, DC was assaulted by A with a claw hammer and accused by him of being involved in stealing cocaine from him. It was alleged that while in the house there were a number of persons present including MK and DK and that both had participated in his detention there.

3 . DK made four statements to the Gardai in advance of the trial. The first two were made on 15 September 2015, the third on 16 September and the final statement on 18 October. All were made in the course of DC's voluntary attendance at Roxboro Road Garda Station. He gave evidence of having signed three of these statements: in relation to the fourth his evidence was that some of the signatures on the document were his.

4 . The first statement described arriving at a rock near the tracks at Cals Field whereupon, DC said, A told him to get out ‘a few coins of coke’. He said that when he did this A came behind him and hit him with the hammer down across the leg. He said that he continued that attack, screaming that DC and two others had stolen his cocaine. DC said in this statement that DK was ‘just standing there smiling’ and that he did not try to interfere or stop A. He said that A left for a short period, returning with a handgun which he pointed at DC, pulling the trigger. The firearm was not loaded. DC alleged that A said that he wanted his cocaine back and forced DC to telephone a third party and ask for an ounce of cocaine. DC then said that A forced him over a wall and into the back of his family home. He said that when he went there, there were a number of people including A, DK and MK. He said that eventually, A then pulled out a knife and told DC and another to get out of the house. He said that it was about 7.45pm when they left the house.

5 . In the main body of this first statement DC said that after A left (and before he returned with the firearm) ‘ I. was thinking of running then but I couldn't because of my leg’. In the concluding paragraph of that statement (to which the trial Judge referred as an ‘add on’), after having stated that it was 7.45pm when he left the house, he said the following:

‘I want to add that when I was at the rock in Cal's Field and [A] went away for the gun I felt I couldn't leave because I thought that the coke that was missing must have been owned by both [A] and [DK] I knew that if I got up to leave that [DK] would have stopped me. From the minute [A] attacked me with the hammer I wasn't able to leave, I knew neither [A] or [DK] wouldn't allow me to. [A] kept a hold of me through Cals field by my arm and [DK] was walking behind. Inside in the house when we were in the sitting room, [A]'s mother [M] locked the door and took my phone off me and put it up on the table so I couldn't ring anyone. [DK] was sitting directly opposite me in the sitting room’.

6 . In his three later statements DC identified the relevant location at ‘Cal's Field’, relevant clothing and certain CCTV footage.

7 . In the course of the trial the jury were shown CCTV evidence which corroborated aspects of what DC had said in these statements. In particular, there was evidence showing the course of the journey which A took with DC in the former's car to two houses (from one of which DK joined them), the vehicle then being shown heading in the direction of a soccer club where the car was parked. The CCTV footage also showed the three walking along a path near the soccer club towards Caledonian Field. That evidence was adduced before the jury, together with evidence from a mapper and a photographer. Sergeant Mick Dunne gave evidence of meeting DC at Roxboro Road Garda Station on 15 September 2015 and going with him and Detective Garda Keane to Cal's Field where, he said, DC pointed to an area where, according to DC, he had been falsely imprisoned the previous evening. He also identified photographs of injuries said to have been sustained to DC's left leg.

8 . On the second day of the trial, the Judge heard, and rejected, an objection to DC giving evidence in respect of a conversation he alleged in his statement he had during the car journey, whereupon DC was called to give evidence. Having confirmed his name and date and place of birth, he then said to the trial Judge that he was ‘in fear of my life to give evidence here today’. Counsel for the accused applied to discharge the jury which, following legal argument, the trial Judge declined to do. The Judge explained his reasoning as follows:

‘[s]ection 16 of the 2006 Act is brought in to deal with an issue like this. It would seem to be … absurdity if somebody could say “I have no recollection of the evidence, its very vague” or gave evidence entirely inconsistent with their statement, thus invoking section 16, but that if they were to say simply that they were in feat of giving evidence, they were terrified, they were scared, they were terribly nervous, whatever, that that would bring them ouside of section 16 and therefore the only, ultimately, application that … would have to be acceded towould be to discharge the jury. That would seem to me to be an absurdity’

9 . When DC was recalled and asked what happened on the 14 September 2015 he repeated this concern and said ‘ I don't want to answer them questions’. He was then taken by prosecuting counsel to various photographs showing injuries on his body, which he confirmed before repeating (when asked what injuries he had sustained on the 14 September) that he did not ‘want to answer no questions like’. Having then confirmed that he had injuries on his legs, he refused to answer any more questions when asked how he came to get those injuries and persisted in that position on further questioning. Prosecuting counsel then applied to the Court to treat DC as a hostile witness, and to have the statements taken from DC and recorded on video tape admitted in evidence pursuant to s. 16 of the Criminal Justice Act 2006.

10 . In the course of the ensuing voir dire, evidence was given by the Gardai who took the statements in question from DC and part of the video recording of that process was played to the Court. Detective Garda Paul Crowley testified that DC had given evidence in accordance with his statements at an earlier trial of the accused on the same charge, that trial being aborted before he was cross-examined. DC gave evidence confirming his signature on three of the statements, but questioning whether all of the signatures on the fourth were, in fact, his.

11 . The effect of s. 16 of the Criminal Justice Act 2006 is to enable by leave of the court the admission into evidence of a statement relevant to...