DPP v Hanley
| Jurisdiction | Ireland |
| Judge | MR JUSTICE FENNELLY |
| Judgment Date | 27 October 2010 |
| Neutral Citation | [2010] IECCA 101 |
| Court | Court of Criminal Appeal |
| Date | 27 October 2010 |
[2010] IECCA 101
THE COURT OF CRIMINAL APPEAL
Fennelly J.
de Valera J.
Edwards J.
AND
NON FATAL OFFENCES AGAINST PERSON ACT 1997 S3
NON FATAL OFFENCES AGAINST PERSON ACT 1997 S5
CRIMINAL JUSTICE ACT 2006 S16
DPP v TAYLOR 1974 IR 97
O'MALLEY CRIMINAL PROCESS 2010 501
O'FLYNN v JUDGE SMITHWICK & ANOR 1993 3 IR 589
R v THOMPSON 1976 CAR 96
CRIMINAL PROCEDURE ACT 1865 S3
AG, PEOPLE v BYRNE 1974 IR 1
DPP v CRONIN 2003 3 IR 377
JURIES ACT 1976 S25
CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S58
DPP v GAVIN 2004 4 IR 557
DPP v MK 2005 3 IR 423
CRIMINAL LAW
Evidence
Hostile witness - Procedure - Pre-trial statement - Cross-examination of hostile witness - Extent of cross-examination permitted - Statement admitted in evidence - Whether prosecution inhibited from cross-examining with object of persuading witness to stand by previous statement - Purpose of cross-examination of hostile witness - Duty to furnish relevant evidence - Whether relevant photograph withheld - Refusal of requisitions - Benefit of doubt - Alleged jury irregularity - Separation of jurors - Whether minimum period for deliberations had elapsed prior to permission for majority verdict - People (Attorney General) v Taylor [1974] IR 97 distinguished - Criminal Procedure Act 1865 (28 & 29 Vict, c 18), s 3 - Juries Act 1976 (No 4), s 25 - Criminal Justice Act 2006 (No 26), s 16 - Civil Law (Miscellaneous Provisions) Act 2008 (No 14), s 58 - Leave to appeal refused (164/2009 - CCA - 27/20/2010) [2010] IECCA 101
People (DPP) v Hanley
JUDGMENT OF THE COURT OF CRIMINAL APPEAL DELIVERED THE 27th DAY OF OCTOBER, 2010 BY MR JUSTICE FENNELLY
The applicant was convicted in May 2009 by a jury sitting in the Dublin Circuit Criminal Court of two offences arising from a violent and unprovoked attack on one Martina Kelly (hereinafter "Miss Kelly"). His Honour Judge McCartan presided. The offences charged were of assault causing harm contrary to Section 3 of the Non-Fatal Offences against the Person Act, 1997 and of a threat to kill or cause serious harm contrary to section 5 of the same act. The jury verdicts in respect of both offences were by 10-2 majority.
At the commencement of the trial, Miss Kelly informed the court that she wanted to retract her statement and that she did not wish to go ahead with it. The prosecution was permitted to treat her as a hostile witness. In addition, the trial judge admitted into evidence the statement Miss Kelly had made to the gardaí pursuant to the provisions of section 16 of the Criminal Justice Act, 2006.
Grounds of appeal are advanced under four headings:
1. Ground number 1 concerns the manner in which counsel for the prosecution cross-examined Miss Kelly, the principal prosecution witness: it is submitted that the prosecution had acted in excess of and beyond the ruling of the learned trial judge permitting her to be cross-examined as a hostile witness;
2. The applicant also complains that the defence was refused sight of a photograph of a person other than the applicant whom Miss Kelly named as her attacker, following withdrawal of her evidence against the applicant
3. It was submitted that the learned trial judge wrongly failed to accede to requisitions concerning his charge to the jury.
4. It is also claimed that there were irregularities in the manner in which the jury reached its verdict, in particular that jurors were permitted irregularly to separate for smokes;
On 15 th March 2007, Miss Kelly made and signed a statement in writing to the Garda Aileen Moynihan in which she described in detail a physical attack made upon her by the applicant earlier on the same day. The substance of that complaint may be summarised as follows. Miss Kelly and a friend had travelled by DART from Kilbarrack to Clontarf. They wished to take a taxi from Clontarf and waited outside the DART station. Miss Kelly was carrying her baby. A green car passed the DART station but then performed a U-turn on the road, headed straight for the two people and pulled up beside them. Miss Kelly saw the applicant in the back seat. She was scared. The applicant jumped out of the car. He came towards her and took a set of keys out of his pocket. He caught Miss Kelly's hair, pulling her towards the ground. He stabbed her several times with the keys above her left eye and below her left ear, dragging the key to a half inch from her mouth. While he was doing this, he called her "a bitch" and said "next time you will get it in the heart." Miss Kelly understood these words as a threat to kill her. He pushed her back and jumped back into the car. Miss Kelly was assisted by two off-duty firemen and taken to hospital, where her wounds were stitched. While at hospital, she received a phone call from the applicant. He offered that, if she did not go to the police, he would forget about the matter and leave her alone.
It was common case that there was a history of bad blood between Miss Kelly and the applicant. He apparently blamed her for the death of his girlfriend in a car crash in 2006: the car was driven by Miss Kelly's boyfriend, who was also killed. In her garda statement she had alleged threats and assaults by the applicant since that time and said that she was very scared of him. She retracted all these allegations in her evidence.
Miss Kelly told the prosecution that she did not wish to go ahead with the case. She failed to turn up in court and had to be arrested. When called as a witness, she said that she wanted to retract her statement. In answer to counsel's questions, she claimed not to remember anything about the events of 15 th March 2007. Asked about her injuries, she said she was not sure when they had happened and that she had been fighting with a girl. She was asked a number of questions about the applicant. She said that she did not know him that well and that she did not know if he had any identifying marks on his body, though she had given a detailed description of a tattoo in her garda statement. She said that the "Gary Hanley" she had referred to was not in court.
Counsel for the prosecution applied to the trial judge, in the absence of the jury, both for a ruling permitting the prosecution to treat Miss Kelly as a hostile witness and for a ruling admitting her garda statement into evidence pursuant to the provisions of section 16 of the Criminal Justice Act, 2006. Counsel for the defence submitted that the prosecution could not pursue both courses: it had to be one or the other. He opposed, in particular, the application to treat the witness as hostile on the ground that it would serve no purpose to cross-examine the witness and that to do so would be prejudicial.
Miss Kelly was examined by counsel for the prosecution in the absence of the jury. She agreed that she had signed the garda statement and that she had provided the gardaí with the information contained in it. She had no complaint about her treatment by Garda Moynihan. However, she said that the information she had provided for inclusion in her statement was false insofar as it implicated the applicant. She said that another person in the car outside the DART station was the person who had assaulted her; she did not wish to name him. Her explanation for naming the applicant as the culprit was that she had screamed to him for help and that he would not come to her aid. He kept laughing at her. For this reason, she wanted to get her own back. Referring to her earlier evidence that the "Gary Hanley" she knew was not in court, she said that she had not recognised him because she had not seen him for three years. Counsel for the defence, in cross-examination, suggested to her that the person who had assaulted her was Alan Mangan and she agreed.
Counsel for the prosecution submitted to the learned trial judge that the statement was reliable for the purposes of section 16 of the Act of 2006: it had been made voluntarily in a controlled environment; she had been well treated by the gardaí. Counsel for the defence opposed the admission of the statement, emphasising particularly the unusual feature that Miss Kelly had named a different culprit.
The learned trial judge ruled in favour of the prosecution both that the witness could be treated as hostile and that her statement should be admitted pursuant to section 16 of the Act of 2006. He referred to the many twists and turns in her evidence and that she had been shown to be adverse to the prosecution. For the purposes of the section, he found the statement to be reliable. For the sake of clarity, it should be said that no issue is raised in the appeal concerning the admission of the statement.
Counsel for the prosecution cross-examined Miss Kelly in the presence of the jury. The course and content of this cross-examination forms the basis of the first and principal ground of appeal. Counsel for the prosecution first took Miss Kelly through the statement line by line, inviting her to agree, and she did agree, that each sentence contained information contained information which she had conveyed to the gardaí. She also agreed that the statement had been read over to her and that she had been invited to make any changes, additions or alterations to it, that she had signed the statement and that it had been witnessed by Garda Aileen Moynihan and that she had no complaint to make regarding her treatment by Garda Moynihan.
Miss Kelly accepted, in the course of this cross-examination that the events of 15 th March 2007 had occurred, in substance, as described in the statement, save for the crucial matter that her...
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DPP v Hanley
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