DPP v Greg Crawford

 
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[2015] IECA 25

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

89/12
DPP v Greg Crawford
The People at the Suit of the Director of Public Prosecutions
V
Greg Crawford
Appellant

Criminal Law – Murder – Appeal against conviction – Charges to jury – Identifications Evidence – Warrants – Warnings to Jury

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Judgment of the Court delivered on the 16th day of February 2015, by Mr. Justice Birmingham

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1. On the 9 th March, 2012, in the Central Criminal Court a jury returned a unanimous verdict convicting the appellant of murdering Gareth Brosnan Grant on the 8 th October, 2007, at St. Ita's Street, St. Mary's Park, Limerick. He now appeals against that conviction.

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2. The core evidence at trial may be summarised as follows. At about 9.30 pm on the 8 th October, 2007, David Grant, brother of the deceased, went to visit his brother at 31 St. Ita's Street. Present at the time of the visit were the deceased, the deceased's partner Claire Ronan, and their three children as well as the mother of the deceased Gabrielle Brosnan. Mr. David Grant stayed about 20 minutes and at about 9.55 pm left to go to his father's house which was a short distance away on St. Munchin's Street. When he was getting into his car to make this short journey, he saw the appellant, Greg Crawford, who was known to him, at the junction of St. Ita's Street and St. Colmcille Street. When Mr. Grant gave evidence at trial, defence counsel put it to him that he was mistaken and that he had not seen Mr. Crawford. Mr. Grant for his part disagreed with this proposition.

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3. Ms. Claire Ronan gave evidence that about 10 minutes after David Grant left the house, her partner, Gareth Brosnan Grant, told her that he was going down the road for about a minute. Very shortly thereafter she heard a shot. She went from her kitchen in the front of the house onto the street. Her evidence to the trial was that she saw the appellant and saw her partner lying on the ground. She screamed "Gay, its Gareth" and her evidence was "he - Greg Crawford turned and looked and he pulled his hood and turned and ran". Sgt. Gerry Cleary arrived on the scene almost immediately after the shot, he had been in the area at the time. Ms. Ronan, without objection, gave evidence that, when Sgt. Cleary was taking her to the hospital following the ambulance, in reply to the question "who was it?" she said "it was Greg Crawford." Sgt. Cleary's evidence was that, as a result of what was said to him by Ms. Ronan, he went to the home of Greg Crawford at 91 St. Munchin's Park. There he observed "Greg Crawford coming out of a small room off the kitchen - he appeared freshly showered, his hair was wet, he had fresh clothes on him". At 10.35pm, he asked the appellant to give an account of his movements, and then arrested him under s. 30 of the Offences Against the State Act and brought him to Henry Street garda station.

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4. There was also evidence at trial relating to items located at 97 St. Ita's Street, the home of the appellant's grandparents, Patrick and Catherine Kennedy. At 11.00 pm on the evening of the 8 th October, Det. Sgt. Patrick O'Callaghan sought a search warrant pursuant to s. 29 of the Offences Against the State Act from Det. Super. James Brown, which was granted. There was an initial inspection of the premises, but because of the amount of material to the rear of the house a request was made to Det. Super. Brown that the premise be declared a crime scene, which it was. The house was searched the following morning and a handgun was located under a beer barrel in the rear garden. The handgun was wrapped in a woollen glove and there was another woollen glove very close by. A bullet was recovered from the body of the deceased and this was compared with bullets discharged from the handgun found in the garden and the conclusion of the ballistic experts was that it had been discharged by that handgun found at 97 St. Ita's Street.

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5. Evidence was given by two forensic scientists, Mr. Liam Fleury and Mr. Michael Burrington. The evidence of Mr. Fleury was that no firearm residue was found on the gloves. Had an individual been wearing gloves on discharging a handgun, he would have expected to find firearm residue. Mr. Burrington took DNA tape lifts from the inner surface of the gloves which matched the profile of samples provided by the appellant. It was accepted that DNA in the gloves could be explained by secondary transfer ie. could have come from someone in close contact with something else handled by Mr. Crawford.

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6. Another aspect of the evidence was that which was given by Sergeant Gerard Cleary, who attended the home of Greg Crawford on the 8 th October 2007 and took an account of Greg Crawford's movements for that evening. The appellant claimed to have been home all night but he was shown on CCTV footage at a local garage, approximately one hour before the murder. The summary of the evidence, which has been referred to is a summary of the prosecution evidence. The defence in this case did not go into evidence.

The Grounds of Appeal
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7. In the written submissions four grounds of appeal were advanced. These were:

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(i) "That the learned trial judge erred in law in refusing the application of counsel for the accused for a direction,"

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(ii) "That the learned trial judge erred in law in refusing requests of both counsel for the prosecution and defence to summarise the evidence of Mr. Liam Fleury, Forensic Scientist, for the benefit of the jury in the course of his charge to the jury,"

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(iii) "That the learned trial judge erred in law in refusing the request of counsel for the accused to particularise the Casey warning to the particular circumstances of the case for the benefit of the jury in the course of his charge to the jury, and"

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(iv) "That the learned trial judge erred in law in ruling as admissible the evidence obtained on foot of a warrant issued pursuant to s. 29 of the Offences Against the State Act 1939, as amended when same had been deemed unconstitutional."

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8. The major focus of attention during the oral submissions was on ground 3, the ground dealing with the adequacy of the Casey warning, which will be dealt with later on in the judgment.

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9. Ground 1: that the learned trial judge erred in law in refusing counsel for the accused application for a direction. This point was not pressed in oral submissions and understandably so. On an application for a direction, the test is whether a jury, properly charged, could convict. On day 5 of the trial, after the prosecution case closed, counsel for the accused sought a direction. The trial judge dealt with the application as follows:-

"I am satisfied there is evidence capable of going to the jury. There are undoubtedly infirmities in the evidence and contradictions in the evidence. That is a matter entirely for the jury to resolve. This is trial by jury and I do not enter the arena in relation to matters of fact. Insofar as circumstantial evidence is concerned, it is a matter for the jury and not for me to decide whether the evidence combines in such a fashion as to make a rope. Case goes to the jury."

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10. In the view of the Court, there was abundant evidence to justify letting the matter go to the jury. Indeed, to withdraw the case would have involved a usurpation of the role of the jury. The question was whether the state of the evidence was such that a jury properly charged could, not necessarily would, convict. There was evidence from David Grant putting the accused at the junction of St. Ita's Street and St. Colmcille's Street at 9.55 pm approximately. There was the evidence of Ms. Ronan that when she went out onto the street immediately after the shot was discharged she saw the appellant in close proximity to her partner's body. There was the evidence of Sgt. Cleary that when, as a result of what was said to him by Ms. Ronan, he went to the home of Greg Crawford that he found him coming out of a shower room, freshly showered and with fresh clothing. Then there was the evidence that the firearm used in the shooting was found in the rear of the home of the accused's grandparents wrapped in or covered by a glove from which DNA samples were taken which matched the DNA of the accused and finally there was the evidence that the accused had claimed to be at home all night in his parents home when CCTV footage from the garage suggested otherwise. On the application for a direction, the prosecution case had to be taken at its high watermark. It is true that the defence, both in cross examination and in closing submissions had criticised aspects of the evidence, in particular the identification/recognition evidence to which there will be reference in the context of later grounds of appeal. However, the fact that evidence was challenged or criticised did not provide a basis for withdrawing the case from the jury. The trial judge was clearly correct to refuse the application for a direction.

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11. Ground 2: that the learned trial judge erred in law in refusing requests of both counsel for the prosecution and defence to...

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