DPP v Gruchacz

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] IESC 45
• Court: Supreme Court
• Docket Number: [Supreme Court Appeal No: 38/2018],[S.C. No. 38 of 2018]
• Date: 10 May 2019

BETWEEN:

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

ANDRZEJ GRUCHACZ

APPELLANT

[2019] IESC 45

O'Malley Iseult J.

Clarke C.J.

McKechnie J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

[Supreme Court Appeal No: 38/2018]

THE SUPREME COURT

Convictions – Murder – False imprisonment – Appellant seeking to appeal against convictions – Whether the alleged identification of the appellant by the witness should have been regarded as tainted

Facts: The appellant, Mr Gruchacz, appealed to the Supreme Court against convictions for murder and false imprisonment. In accordance with the determination of the Court granting leave to appeal, two issues arose in this appeal. The first issue related to the identification of an accused from still photographs or CCTV footage, in circumstances where no witnesses at the trial gave evidence of identification and the question was left to be determined by the jury making its own assessment of the material. The appellant complained that he was not notified in advance of the trial that such a procedure might be adopted, and argued that it marked a significant departure from the principles set out in The People (Director of Public Prosecutions) v Maguire [1995] 2 IR 286. He said that it should not have been permitted, on the basis that admissible oral evidence of identification could have been available to the prosecution. The prosecution had intended to call such evidence but was ultimately unable to do so for a variety of reasons. The second issue related to the interaction, in the circumstances of the case, of s. 3 of the Criminal Procedure Act 1865 and s. 16 of the Criminal Justice Act 2006. The evidence of a particular prosecution witness was for the most part as anticipated from his statement, but he was declared hostile pursuant to the 1865 Act procedure and in line with the principles as set out in People (AG) v Taylor [1974] IR 97. This happened on foot of his denial that he had identified the appellant from a photograph said to have been shown to him by the Gardaí. Subsequently a short section of his witness statement, dealing with that particular issue, was admitted as evidence under the terms of the 2006 Act. It was argued by the appellant that there was a tension between s. 3 of the 1865 Act, the terms of s. 16 of the 2006 Act and the relevant case law. On the facts of the case, it was contended that the witness was too readily characterised as hostile in respect of oral evidence that undermined the prosecution, while at the same time being treated as credible insofar as his evidence was capable of being seen as adverse to the appellant. Furthermore, it was argued that the alleged identification of the appellant by the witness, from which he attempted to resile in oral evidence and which was the subject of the s. 16 application, should have been regarded as tainted in any event as it transpired that he had previously been shown a photograph by the Gardaí.

Held by the Court that, in the circumstances, the grounds of appeal were not made out.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice O'Malley delivered on the 10th day of May 2019

Introduction

1 In accordance with the determination of this Court granting leave to appeal ( [2018] IESCDET 118), two issues arise in this appeal against convictions for murder and false imprisonment. The first relates to the identification of an accused from still photographs or CCTV footage, in circumstances where no witnesses at the trial gave evidence of identification and the question was left to be determined by the jury making its own assessment of the material. The appellant complains that he was not notified in advance of the trial that such a procedure might be adopted, and argues that it marked a significant departure from the principles set out in The People (Director of Public Prosecutions) v Maguire [1995] 2 I.R. 286. He says that it should not have been permitted, on the basis that admissible oral evidence of identification could have been available to the prosecution. The prosecution had intended to call such evidence but was ultimately unable to do so for a variety of reasons.

2 The second issue relates to the interaction, in the circumstances of the case, of s.3 of the Criminal Procedure Act 1865 and s.16 of the Criminal Justice Act 2006. These provisions, roughly speaking, provide procedures for dealing with a witness who does not give evidence in accordance with a prior statement. In this case, the evidence of a particular prosecution witness was for the most part as anticipated from his statement, but he was declared hostile pursuant to the 1865 Act procedure and in line with the principles as set out in People (AG) v Taylor [1974] I.R. 97. This happened on foot of his denial that he had identified the appellant from a photograph said to have been shown to him by the gardaí. Subsequently a short section of his witness statement, dealing with that particular issue, was admitted as evidence under the terms of the Act of 2006. It is argued by the appellant that there is a tension between s.3 of the Act of 1865, the terms of s.16 of the Act of 2006 and the relevant case law. On the facts of the case, it is contended that the witness was too readily characterised as hostile in respect of oral evidence that undermined the prosecution, while at the same time being treated as credible insofar as his evidence was capable of being seen as adverse to the appellant. Furthermore, it is argued that the alleged identification of the appellant by the witness, from which he attempted to resile in oral evidence and which was the subject of the s.16 application, should have been regarded as tainted in any event as it transpired that he had previously been shown a photograph by gardaí.

Background Facts

3 On the evening of the 20th June 2014 Patryk Krupa, a young Polish man, was walking in Athlone town with two friends – Bartek Kurowski and Szymon Rutkowski. Four men drew up in a black BMW, out of which two men emerged. Mr. Rutkowski was headbutted by one of the men, and he and Mr. Kurowski, were told to leave. Following a brief exchange Mr. Krupa then went off in the car. His two companions were concerned for his welfare and started to search the local area to try and locate him. Later in the evening they found Mr. Krupa in the river Shannon. The emergency services were alerted but Mr. Krupa was, tragically, deceased. He had sustained serious head injuries.

4 One of the men who got out of the car was described as being tall and skinny with dark hair and a Polish accent. Mr. Rutkowski said that this was the man who assaulted him. At the trial the prosecution contended that this was the appellant. The second man was a strikingly big man, wearing three quarter length trousers with visible blood stains on his clothes. The prosecution argued that this was the co-accused at the trial, Leszek Sychulec.

5 Mr. Rutkowski was shown certain still photographs by the gardaí, and identified the men in them as the two men in question. He was also able to name the two other individuals that were present in the car. He identified Szymon Tarkowski, the owner of the vehicle, as being the driver, and Kuba Zmuda as one of the passengers. Mr. Tarkowski subsequently pleaded guilty to the offence of false imprisonment. Mr. Zmuda was a prosecution witness at the trial. According to his evidence, Mr. Krupa had been taken out of the car and assaulted by the same two men who had accosted him in the street.

6 Gardaí were aided in their investigation by CCTV footage obtained from various locations around the Athlone area. While neither the abduction incident nor any subsequent assault was captured, the footage acquired allowed the gardaí to track the movements of the deceased up to the time of the abduction and to track the movements of the black BMW before and after that time. Some particularly important footage came from a service station on the Roscommon Road. A minor incident had occurred at the premises, involving two men who appeared to be intoxicated. They had departed in a silver Audi. A number of staff members and customers who had been present at the time were called in the trial, and described a big man and a tall thin man, both of whom had bloodstains on their clothes. CCTV footage and a number of still images from the premises were put in evidence by the prosecution.

7 It is relevant to note that the staff in the service station were familiar with Mr. Sychulec. Indeed, it seems that he had been a familiar face in Athlone for some time. He appears not to have challenged the assertion that he was the big man to be seen in the images. Mr. Zmuda's evidence was that Mr. Sychulec and the tall man who could be seen in the service station stills with him had committed the crime – that was certainly not accepted by Mr. Sychulec, but counsel for this appellant now accepts that it is beyond dispute. The prosecution case, therefore, was that the men in the footage had committed the crime, and that one of them was Mr. Gruchacz.

8 The prosecution also wished to link the suspects to a number of vehicles. The first was a silver coloured Audi A6 estate. This car was owned by Mr. Tomasz Jaromin. He told gardaí, and gave evidence at the trial, that he had lent it to Mr. Sychulec for a period of time on the day of the murder. There was also a second black BMW, owned by a Mr. Marcin Rodziewicz. There was evidence that Mr. Sychulec regularly borrowed this car, and that he drove away in it after returning the silver Audi to Mr. Jaromin on the same day.

9 This second BMW was later found crashed in a ditch in the early hours of the 21st June 2014. Various items were found in the car. Of particular relevance to the investigation was a driver's licence or identity card bearing the name and details of a Mr. Tomasz...