DPP v G.H.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 03 December 2019 |
| Neutral Citation | [2019] IECA 302 |
| Docket Number | Record No: 104/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 03 December 2019 |
[2019] IECA 302
Record No: 104/2019
THE COURT OF APPEAL
Conviction – Threatening to kill – Evidence – Appellant seeking to appeal against conviction – Whether the evidence had sufficient cogency and was of sufficient quality to allow the case to go to a jury
Facts: The appellant appealed to the Court of Appeal against his conviction by a jury on a single count of threatening to kill, contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997 at Cork Circuit Criminal Court on the 13th May 2019. He was subsequently sentenced to imprisonment for a period of five years to date from the 20th May 2019, with the final 18 months thereof suspended on conditions for a period of three years. The appellant appealed on the following grounds: (i) the trial judge erred in fact and law in failing to direct the jury to find the appellant not guilty on the basis that the evidence of the two prosecution witnesses as to the words allegedly spoken by the appellant, which were alleged to have constituted a threat to kill, were fundamentally different; (ii) the trial judge erred in fact and law in failing to direct the jury to find the appellant not guilty on the basis that the evidence of one of the two prosecution witnesses as to the words allegedly spoken by the appellant, which were alleged to have constituted a threat to kill, did not in fact constitute a threat to kill, but rather a threat to assault the complainant causing him harm; and (iii) the trial judge erred in in fact and law in agreeing with the prosecutor that in order to direct the jury to find the appellant not guilty, the prosecution evidence had to be "utterly diabolical".
Held by the Court that it found no errors of principle on the part of the trial judge, and was not disposed to uphold any of the appellant’s ground of appeal.
The Court held that the appeal against conviction would be dismissed in the circumstances.
Appeal dismissed.
This is an appeal by the appellant against his conviction by a jury on a single count of threatening to kill, contrary to s. 5 of the Non-Fatal Offences Against the Person Act, 1997 at Cork Circuit Criminal Court on the 13th of May 2019.
He was subsequently sentenced to imprisonment for a period of five years to date from the 20/05/2019, with the final 18 months thereof suspended on conditions for a period of three years.
The evidence in the case is uncontroversial and is not in dispute, and the appeal involves a net point of law concerning whether the evidence, such as it was, had sufficient cogency and was of sufficient quality to allow the case to go to a jury. The appellant had unsuccessfully sought a direction relying on the second limb of the test in R v Galbraith. He contends in substance on this appeal that the trial judge was wrong to allow the matter to proceed to a jury.
The complainant in this case is one Shane Hayes, a social worker who through the course of his work was involved with the appellant, his partner, and her children. As a result of this engagement, Care Applications were initiated in respect of the four children, the youngest of whom was the son of the appellant. The children came into care on the 11th of January, 2017.
The court heard evidence from the complainant to the effect that on the 27th of October, 2017, the Care Applications were listed for final orders, and concluded around 5.45 p.m. Upon making their exit following the proceedings, the complainant and a team-leader from the social work department, Mr Keith Duff, were confronted by the appellant and his partner. The complainant informed the court that the appellant acted in an aggressive manner, shouted abuse at the men, and threatened to kill the complainant in the following terms: “I'm going to kill you. You're [fucking] dead. I'm going to kill you, I'm going to stab you. I'm going to find you and kill you”. While saying these words, the appellant was moving in the direction of the complainant. The complainant feared some form of physical altercation, taking some steps backwards, and Mr Duff stepped in between the two men, and words were exchanged between Mr Duff and the appellant for another ten to fifteen seconds before the situation was defused. The complainant later expressed some uncertainty as to whether he had in fact heard the words “I'm going to stab you”, a matter which will be elaborated on in more detail when we review the cross-examination of the complainant.
His companion Mr Duff recalled the words: “I will cut you”, “I will see you” being uttered by the appellant. He did not, however, say that these were the only words that were uttered. Mr Duff stated that he had asked the appellant to repeat himself, but that the appellant declined.
The appellant claimed to the gardaí that he had spoken angrily to the complainant but had not threatened him, and that Mr Duff had attempted to provoke him, but this was denied by Mr Duff under cross-examination.
The jury were shown CCTV footage of the incident, which contained no audio. The appellant's front was not visible to the camera. However, the footage appeared to show Mr Duff approaching the appellant, rather than the reverse. In the appellant's statement, he had stated that Mr Duff had said “Hi” to the appellant, and no mention was made of any screaming or shouting. Furthermore, in the complainant's statement to the gardaí, he states the appellant had said to him: “You, you fucking cunt. I'm going to kill you. I'll see you around. I'm coming to kill you, you dirty fucker.”
The appellant was cross-examined by counsel for the defendant as to the inconsistencies between his account to the jury, his account to the gardai, and what Mr Duff had told the jury. A brief review of the highlights of that cross-examination will serve to illustrate the extent of the inconsistencies and how the complainant reacted when confronted with them:
Q. Okay. And the evidence you gave to the jury today about the words used, are you sure about those words?
A. Yes, Judge. Mr Hornibrook said, “I'll kill you. I'll fucking kill you, you're dead.” Yes, Judge, I'm sure about those words.
Q. Okay. Now even there where you say you're sure of those words, in your evidence to the jury, you also said, “I'll stab you.” He didn't say that, did he?
A. Judge, at the time when I gave that statement to the gardaí, I couldn't say with absolute certainty that he said he'd stab me, but I believed I had heard it, so it's difficult for me to say with absolute certainty today that he said the words “I will stab you.” So, I believe with far greater confidence that I can say he said the words, “I'll kill you, I'll fucking kill you.” As I've outlined. I've less confidence with the “I'll stab you” comment. I'm pretty sure I've heard it and that's my belief, but I can't say with as much confidence as I've outlined with the “I'll kill you” statements.
Q. Mr Hayes, if you'll excuse me, this is extraordinary. You've giving evidence on oath to a jury –
A. Yes.
Q. – alleging that Mr Hornibrook threatened to kill you, and the words obviously used are very important. In your evidence in chief you said...
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