DPP v Gamble
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 06 March 2009 |
| Neutral Citation | [2009] IECCA 19 |
| Court | Court of Criminal Appeal |
| Date | 06 March 2009 |
[2009] IECCA 19
COURT OF CRIMINAL APPEAL
Finnegan J.
Murphy J.
McKechnie J.
CRIMINAL DAMAGE ACT 1991 S2(1)
CRIMINAL PROCEDURE ACT 1993 S3
CRIMINAL PROCEDURE ACT 1993 S9
CRIMINAL PROCEDURE ACT 1993 S3(3)
CRIMINAL DAMAGE ACT 1991 S2
AG v M'GANN 1927 IR 503
DPP v O'REGAN 2007 3 IR 805 2008 1 ILRM 247 2007/21/4313 2007 IESC 38
DPP v CRONIN 2003 3 IR 377 2003/15/3202
DPP v MOLONEY UNREP CCA 2.3.1992 2001/15/4270
DPP v LEE 2004 4 IR 166 2004/16/3559
R v TURNER (BRYAN JAMES) 1975 61 CAR 67
R v BLASTLAND (DOUGLAS) 1986 AC 41 1985 3 WLR 345 1985 2 AER 1095
Judgment of the Court delivered on 6th day of March 2009 by Finnegan J.
On the 15 th July 1999 the applicant was convicted of an offence of criminal damage and sentenced to three years imprisonment from the 15 th July 1999 and which term of imprisonment has long since been served. On the 21 st October 2003 the court enlarged the time within which to apply for leave to appeal against conviction and sentence that conviction having been on the 14 th July 1999. Notice of application for leave to appeal against sentence had been filed in the office of this court on the 13 th August 1999 and a notice of abandonment of same was filed on the 2 nd August 2000. Before the court today is an application for leave to adduce evidence of new or newly discovered facts and the application for leave to appeal against conviction.
The offence with which the applicant was charged was an offence of criminal damage contrary to section 2(1) of the Criminal Damage Act 1991. Particulars of the offence are that on the 12 th October 1996 at St. Johnston, Co. Donegal, he damaged three mushroom tunnels to the value of Ir. £8,402.
Pursuant to the enlargement of time a notice of appeal was filed containing the following grounds:-_
2 "1. The appellant's conviction on Count 2 of the Bill of Indictment (Record No. DL0036/99) is unsafe and contrary to the weight and burden of the evidence and should be set aside.
2. The learned trial judge erred in law in failing to allow the contents of the statement of Gerard Peoples to be open to the jury.
3. Such further or other grounds as may be become apparent from a diligent perusal of the transcripts of the appellant's trial.
4. The appellant has now discovered from enquiries that he has carried out that serious allegations have been made against Sergeant John White and against Garda Patrick Mulligan relating to their activities during the years prior to and including 1996 to 1999. While the applicant would be anxious to learn the truth or otherwise of these allegations, he now submits that had this material been brought to the attention of his legal team at or before July 1999 it could well have produced a different result. Such material would have permitted his defence counsel to have put in issue before the jury the character of the principal State witnesses in a manner which could have raised legitimate doubts in their minds about some or all of the evidence against the appellant herein. While the jury, if apprised of the said new, or newly discovered facts and material, might have reached the same conclusion and proceeded to a conviction, the appellant now argues that had those facts been put to the jury at his trial in July 1999 the court could not be satisfied that they would have no impact and that the appellant may well have been acquitted. These facts have only become available in spring of 2003."
The motion grounding the application for enlargement of time to appeal and the grounding affidavits in support of the same are both headed:-
"In the Matter of Section 3 and Section 9 of the Criminal Procedure Act 1993".
In addition to an enlargement of time other reliefs were sought and in particular:-
i "(ii) An order pursuant to section 3 granting the applicant leave to adduce additional evidence of new, or newly discovered facts.
(iii) Such directions as the court may give pursuant to section 3(3) of the Act.
(iv) An order quashing the conviction on Count 2 of the said Bill of Indictment."
As the applicant had not had his conviction quashed by the Court of Criminal Appeal he could not avail of section 9 of the Act of 1993. Accordingly the matter comes before this court firstly by way of an application for leave to adduce new or additional evidence and secondly an application for leave to appeal against conviction.
The applicant was charged with two offences as follows:-
Count 1: That he did on the 10 th March 1995 damage a polythene mushroom tunnel to the value of Ir.£550 the property of Leonard French contrary to section 2 of the Criminal Damage Act 1991.
Count 2: That he did on the 12 th October 1996 damage three polythene mushroom tunnels to the value of Ir.£8,400 the property of Leonard French contrary to section 2 of the Criminal Damage Act 1991.
To the first count the applicant pleaded guilty and to the second count not guilty. The trial proceeded on the second count and he was found guilty and that conviction is the subject matter of this application for leave to appeal against conviction.
Leonard F rench gave evidence that he owned three mushroom tunnels which were damaged in the early morning of the 12 th October 1996. Both sides of each tunnel were slashed. He gave evidence of the amount of damage. He gave evidence of a dispute which he had with Trevor Peoples with members of whose family the applicant is friendly.
Clayton Duncan gave evidence on a Friday night in October 1996 he attended a disco in Raphoe until 2 a.m. of the following morning. At 3 a.m. he was with the applicant and Trevor Peoples. He drove them and Michael Lynch to Mr French's mushroom tunnels. The applicant and Trevor Peoples got out of the car and were away for a few minutes and then returned to the car and he drove them home. It was not the night of the applicant's birthday.
Michael Lynch gave evidence. He did not think the occasion referred to by the previous witness was in October 1996 as that was the applicant's birthday. While unsure of the date he described the incident at Mr French's mushroom tunnels in identical terms to Mr Duncan.
The next witness was Detective Sergeant John White. He interviewed the applicant at Lifford Garda Station on the 21 st March 1997. He was accompanied by Garda Patrick Mulligan. He cautioned the applicant. At first the applicant denied having anything to do with the offence. The applicant later made an inculpatory statement which he signed. In the statement he admitted the offence of 10 th March 1995. In relation to the offence of October 1996 he gave the following account:-
"In October last year I went down to St. Johnston. I met Clayton Duncan…and Trevor Peoples. We went to a dance in Raphoe in a wee grey Fiesta XR2 86 DL registration. After the disco we went for a drive around the road to Carrigans, St. Johnston, on to the Letterkenny Road. We turned right down to the mushroom huts after coming by The White Cross. We stopped the car on the main road near the mushroom huts. The four of us were chatting about damaging the mushroom huts. We had talked about it before that and we had all agreed to cut the mushroom huts. Trevor Peoples and myself got out of the car and we walked down to the huts. Trevor slashed the mushroom huts in a couple of big slashes. I was standing about four feet away from Trevor. We were not drunk at the time. Trevor had the knife. Trevor put the knife in his pocket."
The applicant was arrested and charged. In response to the first charge he admitted the same. In response to the second charge he said:-
"It will all come out in the end who done it, believe me".
In cross-examination Sergeant White was referred to a statement given by the applicant to Superintendent Gallagher on the 19 th March 1998, his original statement having been made on the 21 st March 1997. In the statement of 19 th March 1998 in relation to his statement of the 21 st March 1997 the applicant said:-
"That statement is lies. I made this statement under pressure from Sergeant White and a Garda with a moustache from Raphoe. I had nothing to do with it. That was the night of my birthday in 1996."
He went on to give an account of his movements on that night. Having read the full statement at the request of the applicant's counsel, Sergeant White was asked:-
"That's the statement he made to Superintendent Gallagher?"
He replied:-
"Yes, My Lord. It is totally untrue, the section about any bullying in Lifford Station. There was no bullying, My Lord."
Garda Mulligan who was present at the interview on the 21 st March 1997 gave evidence. In direct examination he was asked the following question:
a Q. It was...
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