DPP v Farrell

JurisdictionIreland
JudgeClarke C.J.,Dunne J.,O'Malley J.
Judgment Date14 April 2019
Neutral Citation[2019] IESCDET 83
CourtSupreme Court
Date14 April 2019

[2019] IESCDET 83

THE SUPREME COURT

DETERMINATION

Clarke C.J.

Dunne J.

O'Malley J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
AND
SEAN FARRELL
APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 28 th June, 2018
DATE OF ORDER: 28 th June, 2018
DATE OF PERFECTION OF ORDER: 1 st November, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27 th November, 2018 AND WAS IN TIME.
General Considerations
1

This is an application for leave to appeal against the decision of the Court of Appeal dismissing the appeal of the applicant in respect of his conviction for a serious assault (see The People (at the suit of the Director of Public Prosecutions) v Sean Farrell [2018] IECA 213).

2

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

3

The application for leave filed, and the respondent's notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background
4

On the 18th June 2013 the injured party, Mr. Ryan Hickey, was sitting in a car with his friend Niall Byrne. The applicant, Sean Farrell, joined them and sat in the back seat. Mr. Hickey was assaulted with a blade. He escaped and ran home, where his girlfriend and mother called an ambulance. The gardaí were also notified. Mr. Hickey identified the applicant to his girlfriend, mother and a garda as the man who assaulted him. He confirmed that identification to the gardaí while in hospital later that night, and again the following day.

5

At some stage, Mr. Hickey told the gardaí that there had been a previous incident of assault and criminal damage, committed by the applicant, on a date between the 10th and 12th June 2013.

6

Mr. Byrne declined to make a statement until the 5th August, when he said that a man named ‘Whacker’ had been in the car and had carried out the assault.

7

Mr. Hickey made a further formal statement to the gardai on the 25th September, confirming that the applicant had assaulted him. He stated that there were only three men in the car and that he did not know anyone called Whacker.

8

The applicant was charged with causing serious harm to Mr. Hickey contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. Two weeks before the trial date, charges were added in respect of the earlier alleged incident.

9

At the trial it was conceded from the outset that the applicant had been in the car. However, Mr. Hickey said in evidence that he realised, on seeing the applicant in court, that he had named the wrong person and that the assailant in the car was in fact someone named ‘Carl’ or ‘Whacker’. The prosecution applied to have Mr. Hickey declared hostile and his witness statements admitted in evidence under s.16 of the Criminal Justice Act 2006. Where the s.16 application is granted, the statement in question is admitted as evidence of any fact stated therein. Counsel for the defence took the view that the s.16 procedure was inevitable and did not object to it, although he submitted that there was no need to go further and declare the witness hostile. Both applications were acceded to. The jury were given copies of Mr. Hickey's statements, and retained them throughout the trial and deliberations, without objection from the defence. As well as the garda evidence in relation to the taking of the statements, Mr. Hickey's girlfriend and mother confirmed in evidence that he had named the applicant on the night.

10

The applicant was convicted on the s.4 charge but acquitted in respect of the other matters. He received a sentence of eight years.

The appeal
11

After the conviction the applicant changed legal representation, and the newly-instructed representatives drafted a notice of appeal with sixteen grounds. The prosecution, relying on the judgment of this Court in DPP v Cronin (No.2) [2006] 4 I.R. 329, objected to most of the grounds on the basis that they had not been argued in the trial.

12

An explanation was sought from the original legal team in respect of some 14 such matters....

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