DPP v Kavanagh

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeFinnegan J.,Mr. Justice Charleton
Judgment Date02 April 2009
Neutral Citation[2009] IECCA 29
Docket NumberCCA 69/08 [2008] IECCA 100
Date02 April 2009

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

Hanna J.

CCA 69/08

[2008] IECCA 100

BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
.v.
KIM KAVANAGH
APPLICANT
Abstract:

Criminal law - Leave to appeal - Admissibility of evidence - Prejudice - Comments made by Judge - Whether the learned trial judge erred in admitting evidence regarding the arrest of the applicant’s co-accused and whether the judge erred in failing to discharge the jury.

Facts: The applicant sought leave to appeal against her conviction and sentence in relation to two offences of impeding apprehension or prosecution contrary to s. 7(2) and 7(4) of the Criminal Law Act, 1997. Those offences arose out of a robbery of a pharmacy by two men, who were allegedly driven from the scene by the applicant. The applicant submitted that the learned trial judge erred in law and/or fact in permitting the DPP to adduce evidence of the circumstances of the arrest of her co-accused, who were not before the court. The applicant also relied on grounds relating to comments made by the learned trial judge regarding her demeanour. It was alleged that the learned trial judge in stating that the accused was only distressed when in the witness box, gave evidence in relation to the demeanour of the applicant and further implied to the jury that her testimony was contrived. However, the Judge also encouraged the applicant to speak up and make herself heard when giving evidence. The applicant also submitted that the learned trial judge erred in refusing to permit the defence to call as a witness Dr. Glanville to give evidence in relation to the applicant suffering from panic attacks and furthermore erred in refusing to discharge the jury following the cross-examination of the application on information obtained from Dr. Glanville’s reports. It was also submitted that the learned trial judge erred in allowing counsel for the DPP to introduce prejudicial material by way of cross-examination.

Held by the Court of Criminal Appeal (Finnegan J,: Budd, Hanna JJ concurring) in refusing the application for leave to appeal: That the evidence in relation to the arrest of the co-accused was relevant to the case against the applicant and although it was capable of being prejudicial, its probative value outweighed any prejudicial effect. The comment by the learned trial judge in relation to the applicant’s demeanour when giving evidence should not have been made. However, taken in the context of the trial as a whole and in the context of the learned trial judge’s charge and his conduct throughout the trial, the comment did not render the verdict unsafe or unsatisfactory. This was not a case of insanity of any form of mental illness and consequently Dr Glanville was not in a position to provide any relevant evidence. Furthermore, his reports were not relevant to the guilt or innocence of the accused and the learned trial judge was correct in disallowing the evidence of Dr. Glanville to be led. The applicant, having adduced in her own evidence the fact that she only had two previous convictions of a road traffic nature put her good character in issue and accordingly the questions complained of were permissible.

Reporter: L.O’S.

1

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

2

The Offences

3

On the 3rd 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 Eur950 and the amount of cash taken Eur720. 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.

4

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.

5

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.

6

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.

7

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 22nd April 2006.

8

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

9

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.

10

The Appeal

11

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:

12

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.

13

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.

14

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.

15

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.

16

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.

17

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

18

Ground 1

19

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...

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