DPP v Hayes

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date26 June 2018
Neutral Citation[2018] IECA 196
Docket NumberRecord No: 218/2012
CourtCourt of Appeal (Ireland)
Date26 June 2018
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent/ Respondent
V
GERARD HAYES
Appellant/Applicant

[2018] IECA 196

Record No: 218/2012

THE COURT OF APPEAL

Criminal law – Murder - Provocation - Appeal out of time - Transcript - Procedural fairness - Courts of Justice Act 1924 - Charge to jury

Facts: In these proceedings, the appellant sought to appeal a conviction of the Central Criminal Court for murder that was handed down in March 2003. It was the prosecution’s case that the appellant had stabbed his friend whilst he was a guest at the appellant’s mother’s home. After being cautioned by Gardaí, the appellant made a narrative statement that the stabbing was committed with a knife that belonged to the deceased. He signed the statement in the presence of the interviewing Gardaí. He further alleged that the deceased had thrown a bottle at his head immediately before the stabbing had taken place. During the course of his trial, the appellant gave evidence that after he was struck with the bottle, he made an attempt to grab a knife that was lying beside the deceased but could not remember anything further. The defence ultimately argued that a partial defence of provocation was available to the appellant, but this was ultimately rejected by the jury who found the appellant guilty of murder.

The appellant sought to appeal his conviction for the first time in 2012. It transpired that parts of the transcript of his trial were no longer available. The appellant argued, inter alia, that he was now denied the right to fairly appeal his conviction in circumstances where critical parts of the transcript of his trial were not available. The appellant also brought a motion that a further ground of appeal be admitted out of time; namely, that the trial judge had failed to properly charge the jury by directing that a verdict of not guilty was not open to them in the circumstances of the case.

Held that both the appeal and the motion would be dismissed. In regards to the motion, it was said that the appellant had not raised during the course of his trial any such issue with the trial judge’s charge to the jury. It was also found that the ground of appeal itself was ill-conceived because even if the trial judge’s charge was found to have been technically incorrect, it was an instruction that would not have given rise to any injustice in the circumstances of this case.

In regards to the remaining grounds of appeal, it was found that although it was unfortunate that a full transcript was not available of the appellant’s trial, the appellant was partly responsible by failing to take steps to appeal his conviction until nine years following his trial had passed. In any event, it was noted that s.33(2) of the Courts of Justice Act 1924, as substituted by s.7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, stated that “[w]here the court is of opinion that either the record or the transcript thereof is defective in any material particular, it may determine the appeal in such manner as it considers, in all the circumstances, appropriate”. Given that there was a partial transcript available to the appellant that included all the evidence, it was deemed sufficient to allow the appellant to properly appeal against his conviction. Being satisfied that the appellant’s trial was fair, his conviction was deemed to be safe.

Appeal dismissed

JUDGMENT of the Court delivered the 26th of June 2018 by Mr. Justice Edwards .
Introduction
1

Mr Hayes is the appellant in the context of an appeal brought before this Court against his conviction for murder by a jury in the Central Criminal Court on the 18th of March 2003. The appeal is based upon seven grounds of appeal contained in a document ‘Grounds of Appeal’ dated the 8th of July 2013. It is further based on two further grounds of appeal which he was permitted to add by leave of this Court granted on the 23rd of June 2017.

2

Mr Hayes is also the applicant in the context of a motion in the appeal proceedings in which he seeks leave to add an additional (10th) ground of appeal.

3

Both the appeal and the motion in this matter were heard together on the 25th of January 2018, and Mr Hayes was allowed to argue his proposed additional ground of appeal de bene esse, and without prejudice to how the Court might rule upon the motion. Following the hearing judgment was reserved on both the appeal and the motion.

4

The Court now delivers its judgment on both the appeal and the motion. Although Mr Hayes is both an appellant and an applicant it is proposed for convenience to hereinafter refer to him simply as ‘the appellant’

The background to the appeal
5

The appellant was born on the 21st of February 1965. At the time of the incident in question, the appellant was living with his mother as he had been barred from his own house. The deceased, John Robinson, whom the appellant described in his statement to the Gardaí, as ‘a good friend’, occasionally stayed in the appellant's mother's house, sleeping in a sleeping bag on the appellant's bedroom floor.

6

On the evening of the 22nd of January 2000, the appellant and the deceased had been drinking together in a location behind the appellant's mothers house. At some point between approximately 9.00pm and 10.00 pm that evening, the appellant and the deceased headed back to the appellant's mother's house. Both men finished off whatever drink they had left whilst in the appellant's bedroom and listening to the radio. According to the appellant's account as given by him in evidence, at some stage during the night, the deceased threw an empty glass bottle towards the appellant on a couple of occasions, which prompted the appellant to say to him ‘give over the messing’, and to point out that it was likely that if he persisted he would wake up the appellant's mother, who was 77 at the time and sleeping in her room downstairs. The appellant then threw the bottle back over towards the deceased. A couple of minutes later, the deceased flung the bottle at the appellant and it hit him on the head, giving him a cut above his left eyebrow.

7

A statement from the appellant's mother was read out to the jury during the trial, pursuant to s. 21 of the Criminal Justice Act 1984. In it she stated, inter alia, that ‘I went up to bed around 11 o clock. I could hear John and Gerard arguing about a row that [they] had yesterday. I went into them and told them to be quiet. I went back to bed but they kept arguing. A short while later Gerard came downstairs to me. He had blood running down the side of his head. I told him I was going down for Mrs. Robinson. As I got there I met Mr. Robinson at the gate. I told him Gerard & John were arguing and would he come up. Mr. Robinson came up to the house & he went upstairs to the bedroom. I met Mr. Robinson at my front door. He told me John was bleeding and he went to ring for an ambulance. Then I went upstairs to see. I saw John was bleeding from the head. I put my hands on him and asked him if he was all right. He made a sound, but he was conscious. I came downstairs and rang the ambulance.’ She added later in her statement that after the ambulance had left ‘I then went to ring the guards but they arrived before I got to do it.’

8

Dr. Marie Cassidy, the State Pathologist who carried out the post-mortem on the deceased on the 23rd of January 2000, was called to give evidence by the prosecution. She gave evidence that the deceased died as a result of ‘ 36 stab wounds and 27 incised wounds to the head, neck chest and limbs’.

9

Garda Vincent Donnellan, Garda Catriona Dwyer and Sergeant John Scanlon were on patrol on the night in question. Having been alerted by radio concerning the incident, they arrived at the appellant's mother's house at approximately 1:46 am. After being let into the house by the appellant's mother, they went into the front room in the house where they encountered the appellant. The evidence given by Garda Donnellan was that the appellant had ‘a cut to his forehead and there was blood on his hands.’ Garda Donnellan and Garda Dwyer then proceeded to have a look around the house, and in the appellant's bedroom they found ‘a large pool of blood…and an empty bottle of whiskey beside it’. Garda Dwyer then found ‘a blood-stained knife in the wheelie bin.’ Sergeant Scanlon then informed the appellant that he was being arrested for a serious assault on the deceased and he was given the usual caution.

10

Upon being presented at Roxboro Garda Station, the member in charge, Sergeant Con Horan, detained the appellant under s. 4 of the Criminal Justice Act 1984. The appellant was then taken to Limerick Regional Hospital where he received five staples inserted for a gash to his head. The next day, the 23rd of January 2000, the appellant was interviewed under caution by Gardai at Roxboro Garda Station. There was an initial interview during the morning which took the form of a question and answer session, in which both questions and answers were taken down in writing, and in the course of which the appellant admitted to stabbing the deceased and disposing of the knife in a wheelie bin. The notes were duly read back over to the appellant, he was invited to make any alterations or additions he might wish to make, but made none, and he then signed the notes, and his signature was witnessed by the interviewing Gardaí.

11

Later that afternoon, he agreed to make a narrative statement after caution. In the course of this statement he said, inter alia:

‘I didn't throw the bottle after I got hit in the head. I hadn't a knife, it was John Robinson's knife. The knife was down beside him, I went over and picked it up. ThenI stabbed him with it a few times.’

12

The said statement was taken down in writing, it was read back over to the appellant, he was invited to make any alterations or additions he might wish to make, but made none,...

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1 cases
  • Director of Public Prosections v Hayes
    • Ireland
    • Supreme Court
    • 5 July 2019
    ...WAS MADE ON 27 th November, 2018 AND WAS IN TIME. 1 This determination concerns a decision of the Court of Appeal made on 26 June 2018; [2018] IECA 196 in an appeal from a conviction of murder of Gerard Hayes, the accused, before the Central Criminal Court on 18 March 2003. The Court of App......

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