DPP v Hayes
| Jurisdiction | Ireland |
| Judge | Macken, J. |
| Judgment Date | 19 October 2011 |
| Neutral Citation | [2011] IECCA 65 |
| Court | Court of Criminal Appeal |
| Date | 19 October 2011 |
[2011] IECCA 65
THE COURT OF CRIMINAL APPEAL
Macken, J.
Budd, J.
O'Keeffe, J.
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4
DPP v MCGRAIL 1990 2 IR 38 3 FREWEN 214 1990/2/475
AG v JOYCE & WALSH 1929 IR 526
O'MALLEY THE CRIMINAL PROCESS 2009
WALSH & MACENTEE CRIMINAL PROCEDURE 2002
R v GRONDKOWSKI & MALINOWSKI 1946 KB 369 1946 31 CR APP R 116
R v MILLER & ORS 1952 2 ALL ER 667 1952 36 CR APP R 169
R v VYE 1993 1 WLR 471 1993 3 AER 241 1993 97 CR APP R 134
DPP v BURKE & O'LEARY 3 FREWEN 92 1986/2/391
DPP v CLEARY UNREP CCA 7.12.2009 2009 IECCA 142
DPP v BRETT UNREP CCA 7.4.2011 2011 IECCA 12
CRIMINAL LAW
Evidence
Cross-examination - Answers - Propensity for violence - Whether witness entitled to explain circumstances - Whether trial judge trespassed on counsel's role - Whether entitlement to separate trial where co-accused's evidence of previous good character contrasts with accused's lack of evidence of good character - Whether possible to order separate trials after judge's charge - Whether accused has right to separate trial or matter for trial judge's discretion - People (DPP) v Brett [2011] IECCA 12, (Unrep, CCA, 7/4/2011) followed - Appeal refused (130/2010 - CCA - 19/10/2011) [2011] IECCA 65
People (DPP) v Hayes
Facts The applicant sought leave to appeal against his conviction of assault causing serious harm contrary to section 4 of the Non Fatal Offences Against the Person Act, 1997. The grounds relied upon by the applicant were: 1. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to discharge the jury in response to an application so to do by counsel on behalf of the applicant on two separate occasions in the course of the trial, and 2. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to accede to an application made on behalf of the applicant to grant him a trial separate from his co-accused. The injured party in respect of this offence alleged that whilst at a house party he was assaulted by the applicant and his co-accused. The injured party knew the applicant before the incident occurred and he stated that three named females were present at the time of the assault. The defence put forward on behalf of the applicant at trial was that he was out in the garden with all but one of the guests when the assault occurred and he contended that a named female was responsible for the assault. The evidence given by that female was to the effect that she had 'blacked out' at the time of the incident. The two other women gave evidence that the assault did not occur in their presence. During the course of cross-examination of the aforementioned female it was put to her that she had previously stabbed the applicant, which she accepted and further that she was 'capable of very great violence'. The witness in response to that question sought to elaborate on the circumstances of the stabbing but was cut off by counsel for the applicant. The learned trial judge directed counsel to let the witness finish and she was permitted to outline the circumstances of the previous stabbing. Arising from the answer given by the witness, counsel on behalf of the applicant applied to have the jury discharged. This application was renewed later in the trial and was again refused. It was submitted herein on behalf of the applicant that the learned trial judge embarked on his own enquiry during the course of the cross-examination by permitting the witness to elaborate on her answer. In respect of the second ground of appeal it was submitted that the applicant suffered particular embarrassment by reason of a joint trial having regard to the fact the other accused had no previous convictions and further having regard to the adverse evidence given by the female witness, namely that the applicant was a 'violent man'.
Held by the CCA; Macken J. (Budd, O'Keeffe JJ.) in refusing to grant leave to appeal: 1. That on a proper analysis of what transpired at the trial during the course of the cross-examination of the relevant female witness, the learned trial judge was not entering into the area retained exclusively by counsel, nor was he seeking to make a case for one party of the other. Rather, the judge was simply drawing counsel's attention to the fact that the witness had not finished her sentence, and that she was entitled to give an explanation in the circumstances. In law, the action of the trial judge was not an error in law and was not such as to lead to an unfair trial, or as to undermine in any way the safety of the applicant's conviction.
2. That having regard to the charge by the learned trial judge in relation to the overall evidence, and the very fair and careful manner in which the case for the applicant was put before the jury by the judge, no complaint could be made. The absence of a separate trial could not sustain the applicant's contention that the learned trial judge erred in law.
Reporter: L.O'S
Judgment of the court delivered by Macken, J. on the 19th day of October, 2011
On the 23 rd April, 2010, after a trial lasting several days, the applicant was convicted at Limerick Circuit Criminal Court on one of two counts, namely, assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. He was sentenced on the 30 th April, 2010, on that count, to five years imprisonment. By an application lodged on the 10 th May, 2010 the applicant applied to this honourable Court for leave to appeal against his conviction on two specified grounds, lodged on the 16 th November, 2010. They are as follows:
1. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to discharge the jury in response to an application so to do by counsel on behalf of the applicant on two separate occasions in the course of the trial.
2. The learned trial judge erred in law, or in fact, or on a mixed question of law and fact, in failing to accede to an application made on behalf of the applicant to grant him a trial separate from his co--accused.
Helpful written submissions were filed on behalf of the applicant, and on behalf of the respondent, and these were supplemented in the course of the oral hearing by submissions made by senior counsel, Mr. Sammon, on behalf of the applicant, and by counsel, Mr. O'Sullivan on behalf of the respondent.
Although the application is based, inter alia, on an allegation that the learned trial judge erred in fact, this application, as will be clear from the materials following subsequently in this judgment, is, in reality, one based entirely on questions of law, and of the role of the judge in the course of a criminal trial.
This is the background which led to the charges and also sets the context in which the dispute arose in the course of the trial, leading to this application. On the evening of Saturday, 6 th June, 2009, Elton John, the well known singer, was giving a concert at Thomond Park in Limerick City. A woman called Martina Kiely lived at an address on Shanabooley Road, Limerick. The rear of the garden of that house backs onto Thomond Park. She decided to have a drinks party in the house, the idea being that she and her guests would then have a chance to listen to the concert without actually having to be present in Thomond Park. Kenneth Hynes, who at that time was Miss Kiely's boyfriend, was invited to the party. He was in a relationship with Miss Kiely, although not living in her house at that particular time. Her two sisters, Ms. Tuite and Ms. Mulqueen, were also invited to and attended the party, as did a man called Edward Kelly, and the applicant. The applicant had, in fact, been in a relationship with Miss Kiely some years previously and from that relationship they had a child together.
According to the description of the relevant facts, set out by counsel for the respondent in the written submissions, which description is not significantly or, in reality, in any way challenged by the applicant, Kenneth Hynes, the victim of the assault, said he was sitting in an armchair at the corner of the fireplace in the living room of the house at around midnight. He then got up from his chair to get cigarettes from the fireplace when Edward Kelly, who had been standing behind him, broke a bottle over his head. The applicant, Derek Hayes, who was then sitting on a three-seat armchair or sofa, stabbed the applicant with a glass in his left cheekbone, just below his left eye. As a result the applicant required medical treatment and the wound was closed with twenty-four stitches. He suffered significant scarring in the area of the injury. The victim, Mr. Hynes, knew the applicant before the incident occurred, and he stated that Miss Kiely, Ms. Tuite and Ms. Mulqueen were all present at the time of the incident.
In contrast to this, the substance of the cross-examination of the applicant by very experienced senior counsel acting for him, was based on the assertion, or clear suggestion, that actually at the time of the incident, the applicant, Edward Kelly, Ms. Tuite and Ms. Mulqueen were all out in the garden listening to the concert. The inference which was sought to be drawn from this, and from the defence mounted by the applicant and Mr. Kelly, was to the effect that it was Miss Kiely, rather than the applicant, who was responsible for the injuries inflicted on Mr. Hynes.
Miss Kiely's evidence was to the effect that she had "blacked out" at the time of the incident. According to her evidence she had had quite a lot to drink, starting from as early...
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