DPP v Fancony

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 15 March 2023
• Neutral Citation: [2023] IECA 59
• Court: Court of Appeal (Ireland)
• Docket Number: [39/21]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Jean Louis Fancony

Appellant

[2023] IECA 59

The President

McCarthy J.

Kennedy J.

[39/21]

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 15 ^th day of March 2023 by Birmingham P.

Introduction

1 . On 30 ^th November 2020, following a trial at Limerick Circuit Criminal Court, the appellant was convicted of an offence of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, and an offence of production of an article in the course of a dispute, the article being a bread knife, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. Subsequently, on 3 ^rd February 2021, he was sentenced to a term of seven and a half years imprisonment which was backdated to 22 ^nd July 2019.

2 . The background to the case related to events that had occurred on 22 ^nd July 2019 at an apartment at Bishop's Quay in Limerick. The apartment where the incident occurred was that of the appellant, Mr. Jean Louis Fancony. In or around March 2019, the injured party, Mr. Tim Crowley, was looking for accommodation to share or to rent in the Limerick city centre area. The victim made contact with the now appellant and agreed to move into the apartment on a shared basis in April 2019. According to Mr. Crowley, after a period, the behaviour of the appellant became erratic. Mr. Crowley considered that the appellant spent a great deal of time on his computer and was propounding a number of strange conspiracy theories, including theories relating to the Irish Government's involvement in the rolling out of the 5G network. It appears that the appellant became suspicious of Mr. Crowley, and, in particular, formed the view that Mr. Crowley had been instrumental in the appellant not getting a job that he was seeking to obtain. It is not in dispute that, on the occasion in question, an altercation developed in the apartment, and indeed the appellant admitted that he had a bread knife and that he stabbed the injured party with it, though he contended that the injured party was the aggressor and that he, the appellant, was acting in self-defence.

Grounds of Appeal

3 . The grounds of appeal are paraphrased as follows:

In addition to these grounds of appeal, there was a motion seeking to adduce additional evidence. The new evidence sought to be admitted, which it is said should lead to the conviction being quashed, is that a prosecution witness, Garda Clifford, who was centrally involved in the arrest of the appellant, had, in 2012, while a serving member of the Gardaí, been convicted of driving without a licence, driving without tax and driving with two bald tires, and had been fined a total of €900 in the District Court. These were matters which came to light following a fatal collision.

• (i) The trial judge erred in fact and in law in admitting into evidence the following words (or similar words) allegedly spoken by the appellant to one Garda Enda Clifford at the time of his arrest, inter alia: “I met with destiny today…I knifed the guy”.

• (ii) The verdict of the jury was perverse and unjust in circumstances where there was lost and missing evidence in the case and the Garda investigation was fundamentally flawed to include:

  • (a) absent/missing CCTV footage from the custody area at Henry Street Garda station, Limerick, at the time of the appellant's initial arrest;

  • (b) a missing fork, alleged to have been found on the appellant's person at the time of his initial arrest (which was at all times disputed by him);

  • (c) an absent/missing bible and rosary beads allegedly found on the appellant's person at the time of the initial arrest;

  • (d) absent/missing CCTV footage of the entrance and exit ways of the apartment building shared by the appellant and Mr. Crowley at the time of the alleged offence herein, showing the alleged movements of Mr. Crowley on the date of the alleged offence, which movements were disputed by the appellant;

  • (e) the absence of any statement taken from the occupant of an apartment neighbouring the appellant's said apartment, notwithstanding the fact that said occupant was spoken to;

  • (f) the fact that the appellant was not interviewed in relation to the alleged offences, despite his desire to be interviewed;

  • (g) the disputed facts surrounding the appellant's second arrest and trip from Limerick University Hospital to Henry Street Garda station in the back of a Garda vehicle;

Background

4 . Before turning to the grounds of appeal and the application to adduce additional evidence, it is necessary to say a little more about what is known about the circumstances of the incident. According to the injured party, he had gone home to Kildare for the weekend and returned to his flat in Limerick on the Sunday evening. He attended work the following day and then returned to the apartment for lunch, at which point he saw the appellant at the table with a knife beside him. A conversation followed and the injured party went to his room. After a period of time, the appellant, according to the injured party, burst into that room, and proceeded to ask the victim whether he could trust him. The injured party says he merely stated that he really did not have time for such a conversation, at which stage the appellant left the room and went back to his computer located on the kitchen table. Once more, the injured party went to the kitchen area and noticed that the knife was still located beside the appellant. The injured party states that the appellant then proceeded to ask the injured party for a loan in the sum of €200. He rejected this request, as he had made a decision to leave the apartment and feared he would not be paid back. However, the injured party did agree to loaning a sum of €100 to the appellant, provided that such sum would be deducted from the rent owed, as this had been done in the past by the appellant and the injured party.

5 . According to the injured party, the appellant then, suddenly and without warning, stabbed him once on the left-hand side, and then a second time on the right-hand side, of his stomach area. The injured party sought to take the knife from the appellant, resulting in the blade being bent in the process. The injured party recounts moving through the apartment, at which time the appellant was holding his hand whilst holding the knife in his other hand. The injured party and the appellant then came out into the corridor, where the injured party was then stabbed in the shoulder area. The appellant then helped the injured party to his feet, brought him to a nearby elevator and exited onto the street. The prosecution case was that the appellant then returned to the lift and went back up to the apartment. Upon returning to his apartment, the appellant changed his clothes and left by the fire exit. The appellant walked past where the injured party had collapsed. At this stage, the appellant had the knife, along with some other items on his person, one of which was a bloody T-shirt that he discarded into a nearby derelict garden. On his way along the Dock Road, the appellant called into a halting site looking for water. A Mr. Patrick O'Driscoll, a resident of the site, informed the Gardaí of a man walking by, speaking with a foreign accent, his hands bloodied, and carrying a knife.

6 . Members of the Gardaí, including Garda Clifford and Garda Finn, along with an armed support unit, were sent to locate the appellant. Upon approaching the appellant on Dock Road, Limerick, he fell to his knees and put his hands over his head. At this stage, he was cautioned by Garda Clifford. At that point, it was noted that the appellant had blood on his hands and bloodstains on his clothing. The knife was tucked inside his belt with the blade facing upward. Garda Finn seized the knife. In response to caution, Garda Clifford noted that the appellant stated that, “he met with his destiny.” Garda Clifford then cautioned the appellant a second time and asked him what he had meant. Garda Clifford recalled and noted the appellant's reply: “I knifed the Irish guy because he was a Satanist and that after 35 years he met with his destiny.” It may be noted at this stage that these alleged remarks recorded by Garda Clifford and reported on by him are at the heart of the appeal. The appellant does not accept that he made such remarks, rather, he contends that he said, “I'm French, I'm Catholic I have 37 years old”. The remarks were not read over to the appellant at the scene, and he was not asked to sign what had been recorded.

7 . Upon arrival at Henry Street Garda station, the appellant made an unusual request. He wanted to speak to a Benedictine priest. Gardaí took the request on board and made contact with Glenstal Abbey. The person who took the call from the Gardaí made the point that one of the priests in the Abbey was a fluent French speaker and offered to put him onto the call. As chance would have it, the Benedictine monk in question, Father Luke McNamara, apart from being a fluent French speaker, was a medical doctor with a qualification in psychiatry. He spoke by telephone to the detainee. Having done so, he expressed serious concerns as to the appellant's wellbeing, in particular, concerns about his mental health. The caller communicated these concerns to Gardaí, and acting upon such concerns, a doctor was summoned to the Garda station to assess the appellant. The doctor who arrived at the Garda station, Dr. Seamus Kilby, confirmed the concerns of Father McNamara. At that stage, the appellant was committed on an involuntary basis to University Hospital Limerick to the acute psychiatric ward. There was concern about the capacity of the hospital to cope with him and to cater for his needs. Following his discharge from hospital the following day, the appellant was arrested once more, charged and brought before the...