DPP v O'Donovan

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 10 December 2004
• Neutral Citation: [2004] IECCA 48
• Docket Number: [2002 No. 93]
• Court: Court of Criminal Appeal
• Date: 10 December 2004

[2004] IECCA 48

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Laffoy J.

Peart J.

93/02

DPP v. O'DONOVAN

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

KEITH Oapos;DONOVAN

Applicant

1 JUDGMENT of the Court delivered the 10th day of December, 2004 by Hardiman J.

2 On the 13th December, 2001 an armed robbery took place at Farran Post Office, County Cork. Two armed robbers stole £8,000 from the son of the proprietor who was threatened with a firearm. They then made their escape in a stolen car. On the 13 ^th May, 2002 the applicant was convicted of the offences involved and now brings his application for leave to appeal against his convictions for:

3 (a) Robbery contrary to s.23 of the Larceny Act, 1916 as substituted by s.5 of the Criminal Law (Jurisdiction) Act 1976.

4 (b) The possession of an unauthorised firearm contrary to s.2 of the Firearms Act, 1925as amended by s.15 of the Firearms Act, 1964and s.3 of the Firearms Act, 1972.

5 (c) Allowing himself to be carried in a vehicle without the consent of the owner or other lawful authority, contrary s.112 of the Road Traffic Act, 1961as amended.

6 The evidence for all these charges is, however, virtually identical.

Grounds of appeal.

7 A number of grounds of appeal were urged in the three separate notices which were served on behalf of the applicant. The Court is, however, satisfied that there is absolutely nothing in any of these grounds save that relating to identification. In some cases, indeed, the ground adumbrated is unstatable: we do not understand, for example, how objection can be taken to the admissibility of photographs of certain parts of the accused's body which were taken with his consent. We do not see how case law and regulations to do with the taking of photographs on a mandatory basis have any bearing on this issue.

8 We will therefore proceed directly to the identification ground.

9 This ground is expressed as follows:

"The learned trial judge erred in law and in fact in failing adequately to warn the jury on the dangers of visual identification evidence. On the contrary the learned trial judge interfered with the role of the jury in disclosing his own view of the central issue of fact."

Importance of identification.

10 There is no doubt that identification was central to the prosecution's case. The Director's case was that some short time after the robbery — there was a dispute about precisely how long after the crime it was — the applicant and another man were identified by two gardaí at a point about 4½ miles from the Post Office at Farran. They were allegedly identified across some fields which formed a valley, when they themselves were over 300 meters (328.1 yards) away from the identifiers. The guards were equipped with a pair of binoculars between them and the identification was made with the aid of the binoculars. This was done at or shortly after 9.30am on the morning of the 13th December, 2001 which on the evidence of the gardaí was "a fairly miserable, wet, drizzly day."

11 In the course of his charge to the jury, the learned trial judge said:

"Identification is a very important aspect of the case, because as Mr. Edwards said, and I think Mr. Creed agrees with him, it is really the identification by the two guards, Detective Garda Cahill and Detective Garda Nagle of the accused as they saw the two men, first of all from over the gap and secondly across the valley, if you like, through the binoculars and then when they saw them beside the river when they came back with the car, which I will come back to later again."

12 In argument on the appeal, Mr. Edwards S.C. for the Director very fairly agreed that his case could not be made out without the identification evidence.

The charge and identification.

13 Just after the passage from the charge quoted above the learned trial judge said:

"But I just want to give you a warning ladies and gentlemen. The Court of Criminal Appeal in a case entitled The People (AG) v. Casey which was in 1963 Irish Reports, required that there be a mandatory warning of juries in cases where the prosecution is relying substantially or wholly on the visual identification of the accused as the person who perpetrated the crime and this is what the Court of Criminal Appeal said in 1963...".

14 The learned trial judge then read the jury an extract from the very well known judgment of Kingsmill Moore J. To avoid burdening this judgment with so well known a passage, we will simply record that the passage read to the jury begins with the words "We are of opinion that juries as a whole...", which occurs just below the middle of page 39 of the report and he continued to the end of that paragraph, eleven lines down on page 40.

15 The learned trial judge then added the following observations of his own:

"So you have heard the evidence of the two guards who — I am now interfering, perhaps — are trained observers. One of them had a pair of very strong binoculars, and you will have the binoculars when you go to your room, and he says that he positively identified him, so you have got to be very careful about this. If you are satisfied beyond reasonable doubt you are entitled to act."

16 The word rendered as "interfering" may, it occurs to us, have been "inferring".

17 This treatment of the topic of identification is criticised on a number of grounds. They boil down to two separate and distinct criticisms. Firstly, it is said, the Casey charge is simply read to the jury as a "stereotyped formula" without further explanation and without reference, in the section of the charge dealing with identification, to the factual circumstances of this case which had a bearing on the topic. Secondly and separately it is contended that the effect of the paragraphs cited above which was the part of the learned trial judge's charge immediately after the citation from Casey, was to take from or even belittle the Casey warning or to suggest that it did not apply, or applied with less force, to identification by guards. Furthermore, says the...