DPP v Heaphy

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 16 March 2015
• Neutral Citation: [2015] IECA 61
• Docket Number: 131/13
• Court: Court of Appeal (Ireland)
• Date: 16 March 2015

[2015] IECA 61

THE COURT OF APPEAL

The President

Birmingham J.

Sheehan J.

131/13

The People at the Suit of the Director of Public Prosecutions

and

Andrew Heaphy

Appellant

Criminal law – Appeal against conviction – Assault causing harm – s. 3 of the Non–Fatal Offences against the Person Act 1997 – Sentenced to two years imprisonment consecutive to a four year sentence for arson – Cross–examination – Interventions and remarks made by trial judge

Facts The injured party was a 36 year old man who had been out socialising. On his way home he decided to call with his mother who had been poorly. When approaching his mother”s house he saw three individuals kicking a car parked outside. He told them to stop or he would call the Gardaí. He continued walking when he was struck from behind. He was kicked and punched to the floor. He tried to defend himself against his attackers but failed. His head was covered in blood and he was barely able to walk. An independent witness observed the incident. She saw the appellant and his cousin punching and hitting the victim. She brought the victim to the local Gardaí station and a few days later the appellant was arrested. Initially he denied any involvement. Later he sought to place blame on the victim by stating he was the one who had started the fight. The appellant gave evidence to this effect stating the injured party had started swinging at him. The medical notes of Dr Mobed, a Consultant in Emergency Medicine, were read to the jury. The report stated the victim had bruising on his left cheekbone and an ankle fracture. The doctor said he had no apparent injuries to his neck, back, abdomen, chest or upper limbs. The defence said this was inconsistent with the account given by the injured party and the independent witness, in that if the attack occurred the way they said it did, the victim was bound to have more extensive bodily injuries. In the course of the trial, the three defendants gave a broadly similar account of events that evening. At the conclusion of the evidence given by the two co-accused the judge engaged in further examination of both witnesses. The appellant sought to argue that the interventions made by the judge amounted to a further cross-examination of the two witnesses and that by highlighting inconsistencies between his evidence and that of his co-accused, an inference might have been drawn by the jury that the trial judge had formed an adverse opinion on the credibility of the appellant. In the course of his charge to the jury, the trial judge remarked that the injured party may not have sustained further injuries because of the jacket that he was wearing. The appellant contended that this remark undermined his defence.

Held It was held the interventions made by the trial judge did not interfere with the appellant”s defence or with his right to a fair trial. The trial judge was entitled to make the remark he did in relation to the victim”s jacket based on the fact the appellant in the course of being interviewed by the Gardaí said that the injured party was wearing a jacket and the injured party himself, when cross-examined about the apparent lack of injuries to his body, suggested that his jacket had protected him.

-Appeal against conviction dismissed

Mr. Justice Sheehan

1 This is an appeal against conviction.

2 On the 9th of May, 2013, following a three day trial at Clonmel Circuit Court the appellant Andrew Heaphy was convicted of assault causing harm to Fran O'Dwyer on the 17th October, 2011, contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997, by a majority verdict. He was sentenced to two years imprisonment directed to be consecutive to a four year sentence for arson which was also imposed on the 16th May, 2013.

3 The appellant appeals against his conviction on two grounds which he sets out as follows:

1. The learned trial judge erred in law carrying out a cross examination of each of the accused and Gary Heaphy in particular.

2. The learned trial judge erred in law in making reference to the fact that perhaps the victim's jacket was the reason why the victim had not sustained any apparent injuries to his body in the alleged assault.

In order to consider these grounds of appeal it is necessary to set out the background to the offence.

4 The injured party Fran O'Dwyer had been out socialising on Sunday night, the 16th October, 2011, in Cashel. He was 36 years of age at the time and on his way home he decided to call into his mother who was unwell. As he was approaching his mother'shome, he saw three people kicking a car and he shouted at them to stop and said he was going to call the gardaí. He continued walking and as he did so he got hit from behind. He was surrounded by three people one punched him on the back of the head and another in the face. He tried to defend himself and managed to pull the hood off one of his assailants. He kept getting punched and fell to the ground breaking his ankle as he did so. When he was on the ground he was kicked and punched and he was kicked in the head.

5 An independent witness Sarah Lane, who herself was on her way home by taxi saw the appellant and a cousin of his, Gary Heaphy punching and hitting Fran O'Dwyer who had his hands to his face trying to protect himself and trying to push them away. The taxi driver beeped her horn to frighten them hoping that this would stop the row but this did not work. Having gone past the scene of the attack the taxi continued a short distance and then did a u-turn and returned to the scene where Sarah Lane got out and observed the appellant and Gary Heaphy repeatedly kicking the injured party on the ground. This witness also observed the third defendant, a young woman kicking the injured party in the head. Sarah Lane remonstrated with the woman, whom she knew, and the two other assailants then departed from the scene with the young woman.

6 Sarah Lane brought the injured party to the police station. She said he was fairly shook up, had blood all over his face and could barely walk. The appellant was arrested some days later and interviewed by the gardaí. Initially he denied having had anything to do with the incident and suggested at first that his mother would be able to witness to the effect that he was at home all day. He resiled from this position and went on to say that he saw the injured party kicking a car, that he remonstrated with him and that as a result of this the injured party swung at him and hit him a number of times. He told the gardaí in the course of being interviewed that he had hit the injured party in the face two or three times. He said that the injured party had then fallen to the ground, but following this got up and went off in a taxi. He denied kicking the injured party and said he did not see anyone else kick him and further stated that he was acting in self defence.

7 The appellant gave evidence at his trial in the course of which he alleged that the injured party following a verbal exchange had attacked his cousin Gary Heaphy, that he went to break up the row and the injured party started swinging at him when he did so. He said that he then swung at the injured party but did not really hit him. He said that they, meaning himself and his co-accused, tried to get away, but the injured party kept coming after them. He denied kicking the injured party. Garda Curran gave evidence of the injured party's arrival at Cashel garda station and said that Fran O'Dwyer had a lot blood around his face and head and that he complained of a pain in his right ankle. He telephoned an ambulance to bring Fran O'Dwyer to the hospital.

8 The medical evidence in the case was read to the jury. This comprised a report by Dr. Cyrus Mobed a Consultant in...