DPP v Fitzgerald
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] IECA 224 |
| Docket Number | Record No: 155 and 156 2015 |
| Court | Court of Appeal (Ireland) |
| Date | 28 July 2017 |
[2017] IECA 224
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Mahon J.
Edwards J.
Record No: 155 and 156 2015
Conviction – Causing serious harm – Robbery – Appellants seeking to appeal against convictions – Whether trial judge erred in refusing to charge the jury in respect of an alternative verdict of handling or possessing the property
Facts: The appellants, Mr Fitzgerald and Mr O’Driscoll, on the 1st of May 2015, were both convicted by a jury of causing serious harm to Mr O’Keeffe on the 25th of November 2013 contrary to s. 4 of the Non-Fatal Offences against the Person Act 1997, as well as robbery of the victim’s mobile phone, worth €50, on the same occasion contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellants were sentenced on the 1st of May 2015 to eight years imprisonment on both counts, to run concurrently and to date from the 22nd of February 2015. The appellants appealed to the Court of Appeal against their convictions on a number of similar grounds: (i) the trial judge erred in failing to grant applications for a direction of no case to answer by reason of lack of evidence made on behalf of each of the appellants, respectively, at the close of the prosecution case; (ii) the judge erred in failing to give any or any adequate reasons for the refusal to grant the applications for a direction of no case to answer made on behalf of each of the appellants, respectively; (iii) the judge erred in failing to discharge the jury after the jury had heard that Mr Fitzgerald was “signing on” at the time of the incident; (iv) the judge erred in reminding the jury during the course of his charge of the fact that Mr Fitzgerald was signing on at the time of the incident; (v) the judge erred in refusing to charge the jury in respect of an alternative verdict of handling or possessing the property contrary to s. 17 or s. 18 of the 2001 Act. In addition Mr O’Driscoll further complained: (vi) that the trial judge erred in failing to charge the jury in respect of a possible innocent explanation for the blood of the injured party being found on the clothes of Mr O’Driscoll and, having being requisitioned on same, in failing to address the possibility that the blood was on the clothes through innocent contact; (vii) that the decision of the jury was perverse and against the weight of the evidence.
Held by the Court that, concerning grounds (i) and (ii), the application was based solely on alleged insufficiency of evidence and in rejecting it the trial judge was implicitly stating that he was satisfied that there was sufficient evidence, taking the prosecution’s evidence at its height, to enable a jury properly charged to convict. The Court held that it is not a requirement that a trial judge should itemise each and every item of evidence capable of being relied upon to support such a conclusion. Concerning grounds (iii) and (iv), the Court did not consider, having regard to the overall run of the case, and the relatively peripheral context in which the impugned remark had been made, that the manner in which it was addressed by the trial judge would have caused the jury to focus unduly on the matter so as to defeat the objective that the trial judge was trying to achieve. Concerning ground (v), the Court held that in ruling that it was not open to the court to instruct the jury with respect to the possibility of bringing in alternative verdicts on the robbery charges, the trial judge erred in law. Concerning ground (vi), the Court was satisfied that the defence case was fairly and accurately summarised for the jury. Concerning ground (vii), in so far as it concerned the conviction of Mr O’Driscoll for causing serious harm the Court was satisfied that there was indeed evidence capable of supporting a conviction.
The Court held that the convictions of both appellants for causing serious harm were safe and satisfactory and the Court dismissed their appeals against those convictions. The Court held that it would allow the appeals against the convictions of both appellants on the robbery counts, on ground (v) only. The Court would hear submissions as to whether it should direct re-trials on the robbery counts.
Appeal allowed in part.
On the 1st of May 2015, the appellants were both convicted by a jury of causing serious harm to Karol O'Keeffe on the 25th of November 2013 contrary to s. 4 of the Non-Fatal Offences against the Person Act, 1997, as well as robbery of the victim's mobile phone, worth €50, on the same occasion contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
A third accused, Mark O'Driscoll (who was not related to the second named appellant Bill O'Driscoll), had earlier pleaded guilty to identical charges of causing serious harm, and robbery, of the same victim on the same occasion.
The appellants were sentenced on the 1st of May 2015 to eight years imprisonment on both counts, to run concurrently and to date from the 22nd of February 2015.
The appellants now appeal against both their conviction and sentence. However, this judgment is concerned solely with the appeals against conviction.
Both appellants have filed a number of what are essentially similar grounds of appeal against their respective convictions: In summary, these are:
i. That the trial judge erred in failing to grant applications for a direction of no case to answer by reason of lack of evidence made on behalf of each of the appellants, respectively, at the close of the prosecution case;
ii. That the trial judge erred in failing to give any or any adequate reasons for the refusal to grant the applications for a direction of no case to answer made on behalf of each of the appellants, respectively;
iii. That the trial judge erred in failing to discharge the jury after the jury had heard that Damien Fitzgerald was ‘signing on’ at the time of the incident;
iv. That the trial judge erred in reminding the jury during the course of his charge of the fact that Damien Fitzgerald was signing on at the time of the incident;
v. That the trial judge erred in refusing to charge the jury in respect of an alternative verdict of handling or possessing the property contrary to section 17 or section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
In addition the second named appellant further complains:
vi. That the trial judge erred in failing to charge the jury in respect of a possible innocent explanation for the blood of the injured party being found on the clothes of Bill O'Driscoll and, having being requisitioned on same, in failing to address the possibility that the blood was on the clothes through innocent contact;
vii. That the decision of the jury was perverse and against the weight of the evidence.
In order to give proper consideration to these grounds of appeal it will be necessary to review the evidence that was adduced at the trial.
Both the Old Youghal Road and the Ballyhooly Road in the suburbs of Cork City are on a hillside north of the river Lee in Cork City, with the Old Youghal Road being at a higher level on the hillside than the Ballyhooly Road. A flight of steps known as ‘the Quarry Steps’ provide a pedestrian connection from the Old Youghal Road to the Ballyhooly Road terminating at their lower end in a laneway that comprises a crescent of houses just off Ballyhooly Road and known as Windsor Cottages. A pedestrian descending the Quarry Steps must pass through a set of gates near their lower end in order to emerge at Windsor Cottages. There are also entrance gates from the laneway to a number of properties on Windsor Crescent close to the bottom of the quarry steps.
In the early hours of the 25th of November 2013, Karol O'Keeffe was walking home from a nearby pub when he was violently assaulted on the Quarry Steps. His mobile phone, worth €50 approximately, was also stolen in this incident. Mr O'Keeffe remembered leaving the pub and his next memory was of waking up in hospital. He had no recollection of the assault or concerning the circumstances in which his mobile phone was stolen from him.
He described his condition on waking up in hospital, stating that his ear was ‘nearly severed off’, that his face was ‘unrecognisable’, that he had no strength in his arm, that there were marks on his head, that his memory was impaired and that he was very confused. He spent two weeks receiving acute care in hospital, following which he was transferred to the National Rehabilitation Hospital in Dun Laoghaire. He told the jury at the appellants' trial that he had ongoing sequellae in that he remained very prone to fatigue, had no sense of taste or smell, continued to have impaired memory and to suffer from confusion, and had no self confidence since the incident.
It was acknowledged at the trial by counsel on behalf of the appellants that there was no dispute but that Mr O'Keeffe was assaulted, and indeed that he had suffered serious harm.
Ms Edyta Balicka was living with her husband Wojcieck at an address in Windsor Cottages. She told the jury that at 12.30 a.m. on the 25th of November 2013 she was at home and in bed upstairs with her husband when she heard a number of people engaged in an argument outside in the laneway. There were raised voices and there was shouting. There appeared to be three or four voices, and one of them was that of a female. They were Irish. She formed the impression they were drunk. The word ‘fuck’ was being repeated many times. It went on for 10-15 minutes. She thought she might have drifted off to sleep briefly during this...
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