DPP v Kavanagh

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 24 July 2008
• Neutral Citation: [2008] IECCA 100
• Court: Court of Criminal Appeal
• Date: 24 July 2008

DPP v Kavanagh

BETWEEN

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

RESPONDENT

.v.

KIM KAVANAGH

APPLICANT

[2008] IECCA 100

Finnegan J.

Budd J.

Hanna J.

CCA 69/08

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Evidence

Admissibility - Arrest - Whether evidence of circumstances of arrest of co-accused relevant - Whether probative value of evidence outweighed prejudicial effect - People (Attorney General) v O'Brien [1961] IR 142 considered - Intervention by trial judge during cross-examination of accused - Whether comments made by judge adverse and prejudicial - Whether comment indicated that judge found accused's evidence contrived or incredible - Demeanour of witness - Whether intervention rendered verdict unsafe - Whether comments of judge to be considered in light of entire conduct of case and charge as a whole to determine whether jury affected - People (DPP) v Willoughby [2005] IECCA 4, (Unrep, CCA, 18/2/2005); People (DPP) v DOS (Unrep, CCA, 28/7/2004); R v Butler [1999] Crim LR 595; People (DPP) v O'Toole (Unrep, CCA, 25/3/2003) and R v Iroegu (Unrep, 2/8/1998) considered - Medical evidence - Whether psychiatric evidence in relation to accused admissible - Whether trial judge erred in refusing defence application to call psychiatric evidence - Circumstances where psychiatric evidence relevant and admissible - People (DPP) v Kehoe [1992] ILRM 481 considered - Whether medical reports ruled inadmissible could be relied on in cross-examination of accused by prosecution - Whether impermissible question asked - Whether accused had put character in issue - Whether shield dropped - R v Ellis [1910] 2 KB 74; People (Attorney General) v Doyle [1943] Frewen 39; Jones v DPP [1962] AC 635 and R v Anderson [1988] QB 678 considered - Criminal Justice (Evidence) Act 1924 (No 37 ), s 1 - Application for leave to appeal against conviction refused (69/2008 - CCA - 24/7/2008) [2008] IECCA 100

People (DPP) v Kavanagh

CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001 S14

CRIMINAL LAW ACT 1997 S7(2)

CRIMINAL LAW ACT 1997 S7(4)

ROAD TRAFFIC ACT 1961 S53

ROAD TRAFFIC ACT 1968 S51

ROAD TRAFFIC (AMENDMENT) ACT 1984 S3

AG, PEOPLE v O'BRIEN 1965 IR 142

WILLOUGBY v DPP UNREP CCA KEARNS 18.2.2005 2005/58/12223

DPP v D O'S UNREP CCA MCGUINNESS 28.7.2004 2004/17/3777

R v BUTLER 1999 CRIM LR 595

DPP v O'TOOLE UNREP CCA DENHAM 25.3.2003 2003/19/4412

R v IROEGBU THE TIMES 2.8.1988

DPP v KEHOE 1992 ILRM 481

DPP v EGAN 1990 ILRM 780

R v TURNER 1975 QB 834

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(F)

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(F)(3)

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(F)(2)

R v ELLIS 1910 2 KB 746

AG v DOYLE 1943 1 FREWEN 39

JONES v DPP 1962 AC 635

R v ANDERSON 1988 QB 678

1 Judgment of the Court delivered on the 24th day of July 2008 by Finnegan J.

The Offences

2 On the 3 ^rd April 2006 between 6 and 7 p.m. a robbery took place at a pharmacy on Manor Street, Dublin 7. Two men entered the pharmacy one carrying a hand gun and the other a screwdriver. Both had their faces covered and were wearing surgical gloves. Staff were forced to open the drug safe and a large quantity of drugs were removed some of which were placed in two plastic bags. The till was emptied. The mobile phones of two members of staff were taken. The purses of two customers were taken. The value of drugs taken was €950 and the amount of cash taken €720. Two members of staff and two customers were forced into a staff toilet at the rear of the premises. The two men then made their escape.

3 A security man at nearby premises saw the two men leave and pursued them but gave up the chase when a gun was produced. By this time Gardai were on the scene. They saw the two men get into a black Volkswagen Golf motor car and one Garda noted the registration number as 99 KE 7765. The driver of the car was a blonde haired female who the prosecution alleged was the applicant.

4 The car sped from the scene and was pursued by a Garda car containing an off-duty Garda and two uniformed Gardai with its blue lights flashing and its siren sounding. A Garda who approached the car on foot had a gun pointed at him by the front seat passenger and he threw himself to the ground. The Golf was impeded by traffic and was held up on a number of occasions but continued to attempt to avoid apprehension. It drove through two sets of red traffic lights. At North Brunswick Street the Golf stopped and two men emerged and ran from the same in different directions. They were pursued and arrested. The car with its driver escaped.

5 Arrest was resisted by each of the men and in one case that resistance was particularly violent and included the gun being held to the head of the arresting Garda.

6 Shortly thereafter the Golf was seen near Richmond Apartments by an occupier of an apartment. A blonde haired female emerged from the car with a black bag and was about to dump the same when challenged by the resident. She in fact dumped the bag around the corner and out of sight of the resident. The bag was found by the Gardai and it contained some of the stolen drugs. When she returned to the car he took photographs of her and the car. She locked the car and walked away. Shortly thereafter the car was found by the Gardai locked and undamaged. It was seized. On a search the car was found to contain a quantity of drugs of the same type taken in the robbery and a mobile phone belonging to a member of the pharmacy staff. The address of one of the arrested men was searched and in the course of the search documentation bearing the name of the applicant was found including a mobile phone bill with her number. Also found was a photograph of the man with a female who was later identified as being the applicant. The registered owner of the Golf was the applicant. The applicant's telephone number was called by one of the investigating Gardai who asked her to attend for interview: the applicant agreed to do so but did not in fact attend. She was arrested on the 22 ^nd April 2006.

7 Arising out of these events the applicant together with the two men were charged with offences of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The applicant was also charged with two offences of impeding apprehension or prosecution contrary to section 7(2) and 7(4) of the Criminal Law Act 1997 one offence relating to her co-accused Philip Tormey and the other to her co-accused Jason Mahoney. She was also charged with an offence of dangerous driving contrary to section 53 of the Road Traffic Act 1961 as amended by section 51 of the Road Traffic Act 1968 and section 3 of the Road Traffic (Amendment) Act 1984. The applicant was found not guilty on the offences of robbery and the offence under the Road Traffic Acts but was found guilty of the two offences of impeding apprehension or prosecution contrary to section 7(2) and 7(4) of the Criminal Law Act 1997. On each of the offences of which she was found guilty she was sentenced to a term of two years imprisonment the terms to be concurrent.

The Appeal

8 The applicant applies to this court for leave to appeal against both conviction and sentence. In relation to conviction thirteen separate grounds are raised but at the hearing before this court the appeal was pursued on the following five grounds only:-

9 1. The learned trial judge erred in law or on a mixed question of law and fact in permitting the Director of Public Prosecutions to adduce evidence of the circumstances of the arrest of the applicant's co-accused, not before the court, which said evidence had no probative value in respect of the offences charged against the applicant or, in the alternative where any probative value the said evidence had was exceeded by its prejudicial effect arising, in particular, from the detailed evidence given about the extreme levels of aggression and violence displayed by Philip Tormey whilst being arrested.

10 2. The learned trial judge erred in law or on a mixed question of law and fact in making adverse and prejudicial comment on the accused during her evidence.

11 3. The learned trial judge erred in law or on a mixed question of law and fact in refusing the defence application for a discharge of the jury having made adverse and prejudicial comments about the accused and her evidence in the presence of the jury.

12 4. The learned trial judge erred in law or on a mixed question of law and fact in refusing to permit the defence to call as a witness Dr. Brian Glanville, Consultant Clinical Psychologist.

13 5. The learned trial judge erred in law or on a mixed question of law and fact in refusing to discharge the jury when counsel for the Director of Public Prosecutions, having successfully sought the exclusion of Dr. Glanville as a witness, subsequently cross-examined Ms Kavanagh on information obtained from Dr. Glanville's reports. The learned trial judge further erred in law or on a mixed question of law and fact in allowing counsel for the Director of Public Prosecutions to introduce prejudicial material by way of cross-examination.

14 It is convenient to deal with grounds 2 and 3 together and grounds 4 and 5 together.

Ground 1

15 Garda Aidan Murphy gave evidence of the chase of the Golf motor car up to the point where the applicant's two co-accuseds exited the same and continued to make their escape on foot. At that point an application was made to the judge by counsel for the applicant that further evidence of the chase and arrest of the co-accuseds should not be given in evidence it being irrelevant in relation to the applicant. The arrest of one co-accused was attended by particular violence. The evidence it was contended was irrelevant and prejudicial. The learned trial judge held that the evidence was part of the events...