DPP v Farrell

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 28 June 2018
• Neutral Citation: [2018] IECA 213
• Docket Number: 171/2015
• Court: Court of Appeal (Ireland)
• Date: 28 June 2018

[2018] IECA 213

THE COURT OF APPEAL

Hedigan J.

Mahon J.

Edwards J.

Hedigan J.

171/2015

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

Sean Farrell

Appellant

Crime & sentencing – Assault – Criminal damage – Conviction – Evidence - Complainant changing evidence as to attacker’s identity

Facts: The appellant had been convicted of assault and criminal damage following an attack carried out in Tallaght in 2013. The complainant had given multiple statements to Gardaí confirming the appellant as his attacker but changed his evidence at trial to name another individual as the attacker. The appellant now appealed against his conviction, arguing inter alia that the trial judge had erred in the admission of the identification evidence against him and that his legal team was inept.

Held by the Court that the appeal would be dismissed. The Court was satisfied the evidence before the jury was correctly admitted, and that the jury had given due consideration to each charge against the appellant. The Court also stated that the appellant’s late bid to add a ground of appeal in respect of his legal representation would be refused.

JUDGMENT of the Court delivered on the 28th day of June 2018 by Mr. Justice Hedigan

1 The appellant was tried before a judge and jury in Dublin Circuit Criminal Court between 13th and the 19th May, 2015 in relation to three counts. The appellant was found not guilty in relation to a count of assault contrary to section 3 of the Non Fatal Offences Against the Persons Act 1997 and a count of criminal damage contrary to section 2 of the Criminal Damage Act 1991, both alleged to have occurred between 10th and 12th June 2013. The appellant was found guilty in relation to a count of assault causing serious harm contrary to section 4 of the Non Fatal Offences Against the Person Act 1997, alleged to have occurred on 18th June, 2013. He was sentenced to 8 years imprisonment. The appellant now seeks to have his conviction quashed by this Court.

Background

2 The injured party in this case, Ryan Hickey gave three statements to the Gardaí in which he nominated the appellant as having assaulted him. At trial, the injured party retracted his statements and stated that an individual named ‘Whacker’ had committed the assault against him, not the appellant. Given that the facts of the case are disputed, for clarity, this judgment will set out the conflicting factual accounts given by those concerned in chronological sequence.

3 On 18th June, 2013 at approximately 8.10 pm Mr Hickey stated that he was in a car with his friend, Niall Byrne rolling a joint. The car was parked in Mr Byrne's driveway in Castle Park Estate, Tallaght. The appellant came up to the car in the driveway, and asked to be let into the car to have a chat. Mr Hickey got out of the car and lifted his seat to let the appellant into the car. The appellant got into the back of the car and stated ‘I heard you were a mad rat, Indo’. The appellant proceeded to attack Mr Hickey with a Stanley blade. Mr Hickey stated that Mr Byrne pulled at the appellant's arm to loosen his grip. At this point, Mr Hickey managed to escape, got out of the car and ran home. His mother and girlfriend were home and he asked them to call an ambulance. At the time, he told his mother that ‘Fat Farreller’ (the appellant) had assaulted him.

4 Garda Jennings gave evidence that at approximately 8:25 pm, he received a call informing him that Mr Hickey had been stabbed. He attended Mr Hickey's family home at 8:30 pm. Upon arrival, he described seeing Mr Hickey as having towels over his head and face, with blood dripping down through his hands and the towels. Garda Jennings asked Mr Hickey who had stabbed him. Mr Hickey informed him that ‘Fat Farreller’ had assaulted him. This was noted by Garda Jennings in his notebook. Mr Hickey was then taken to hospital.

5 Garda Jennings stated that he later took a statement from Mr Hickey in Tallaght Hospital at approximately 1:00 am on 19th June, 2013. This was approximately four hours after the assault had occurred. This was the first of the three statements Mr Hickey gave to the Gardaí. The injured party nominated the appellant as having assaulted him, stating that the appellant ‘sliced him’ with a Stanley blade. Mr Hickey made a second statement at Tallaght hospital the next day, at approximately 2pm. Mr Hickey had been discharged and was waiting on a prescription from the doctors at the time. Mr Hickey again nominated the appellant as having assaulted him, stating that the appellant had ‘cut the head off him’.

6 On 25th June, 2013 Mr Byrne (the friend of Mr Hickey who had been present in the car at the time of the assault) declined to make a statement when requested to do so by Gardaí. He stated that he hadn't seen anything on the night in question. Later, on 5th August, 2013, Mr Byrne made a statement to the Gardaí claiming that a fourth person called ‘Whacker’ had been present in the vehicle and that ‘Whacker’ had assaulted Mr Hickey, not the appellant.

7 On 25th September, 2013, Mr Hickey made a third written statement to the Gardaí at Terenure Garda Station confirming the appellant assaulted him, that there were only three people in the car when he was attacked including himself and that he didn't know anyone called ‘Whacker’.

8 At trial, Mr Hickey gave evidence that there was in fact a fourth person in the vehicle called ‘Whacker’ and it was ‘Whacker’ and not the appellant who had assaulted him.

Grounds of Appeal

9 The sixteen grounds of appeal were set out as follows:

i) The Learned Trial Judge erred in law and in fact in allowing the prosecution to introduce into evidence the statements in the book of Evidence of Ryan Hickey pursuant to the provisions of S.16 of the Criminal Justice Act 2006 in circumstances where there was not sufficient evidence before the Court of the reliability of the said statements and in particular having regard to the manner in which certain statements had been taken from the Appellant.

ii) The introduction into evidence of the statements in the Book of Evidence of Ryan Hickey was wrong in law and not in accordance with the strict requirements of S.16 of the Criminal Justice Act 2006.

iii) The Learned Trial Judge incorrectly charged and misdirected the jury in relation to the provisions of section 16 of the Criminal Justice Act 2006 and in particular how the jury should assess and deal with evidence of such a nature, particularly having regard to the circumstances of its admissions in the circumstances of this particular trial.

iv) The Learned Trial Judge erred in law and in fact in declaring the witness Ryan Hickey to be hostile and in allowing the prosecution to treat him as a hostile witness.

v) The trial was unfair and unsatisfactory by reason of the late addition by the prosecution to the Indictment of two further counts (Counts 1 and 2) that related to offences alleged to have occurred on dates different to the offence alleged in count 3 of the Indictment which was unfair and prejudicial to the conduct of the Appellant's defence.

vi) The Learned Trial Judge erred in law and in fact in refusing an application for separate trials as between count 3 and counts 1 and 2 of the Indictment.

vii) The Learned Trial Judge erred in law and in fact in failing to give the identification warning in accordance with the People v Casey having been requisitioned by Counsel so to do.

viii) The Learned Trial Judge erred in fact and in law in allowing the prosecution introduce and rely upon the evidence of identification by a witness Ryan Hickey (that evidence being given pursuant to S.16 of the Criminal Justice Act 2006) where no identification parade had been held by An Garda Síochána in circumstances where the Appellant had become a suspect and the witness was amenable to view an identification parade. The failure to hold such a parade deprived the Appellant of trial in due course of law in breach of the Appellant's Constitutional rights.

ix) The Learned Trial Judge failed to adequately warn the jury in relation to the difficulties with identification evidence and in particular, he failed to particularise the relationship of the problems of visual identification evidence to the particular evidence of same in this particular Prosecution case against the Appellant.

x) The trial was unsatisfactory in that the previous convictions of a witness, Niall Byrne, who gave evidence at the trial, were revealed to the jury in circumstances where such evidence of the witness's previous convictions was not admissible in law and/or in circumstances where its admission was unfair and prejudicial to the Appellant.

xi) The cross-examination by Counsel for the Prosecution of the witness Niall Byrne was unfair having regard to matters put to the witness in relation to his previous convictions which rendered the trial unsatisfactory and the verdict unsafe.

xii) The Learned Trial Judge's charge failed to properly deal with the manner in which the jury should deal with and approach the evidence of Niall Byrne.

xiii) The Trial was unsatisfactory and the conviction of the accused unsafe by reason of the failure of the Learned Trial Judge to put adequately or at all the defence case, being one where it had at all times been put by the defence that the Appellant was present but had been mistakenly identified by the witness.

xiv) The Learned Trial Judge erred in law and in fact in admitting into evidence, evidence of fibre lifts which had no probative value or that whatever probative value it had was far outweighed by its prejudicial and unfair effect.

xv) The finding of the jury that the Appellant was not guilty on counts 1 and 2 but guilty on count 3 is perverse having regard to all the circumstances of the case, particularly in circumstances where the Learned Trial Judge allowed the admission of the Complainant's evidence...