DPP v Kelleher

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 10 October 2016
• Neutral Citation: [2016] IECA 277
• Docket Number: 130/16
• Court: Court of Appeal (Ireland)
• Date: 10 October 2016

[2016] IECA 277

THE COURT OF APPEAL

Sheehan J.

Sheehan J.

Mahon J.

Edwards J.

130/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Anthony Kelleher

Appellant

Conviction – Assault causing harm – Fair trial – Appellant seeking to appeal against conviction and sentence – Whether appellant received a fair trial

Facts: The appellant, Mr Kelleher, following a six day trial at Cork Circuit Criminal Court, was convicted of assault causing harm to his wife at their family home in Macroom, Co. Cork on the 12th June, 2014 and was subsequently sentenced to eight years imprisonment. He appealed to the Court of Appeal against conviction and sentence. The appellant filed nine grounds of appeal against conviction, the first seven of these relating to issues arising out of the refusal of the principal prosecution witness, Mrs Kelleher, to give evidence and the subsequent admission into evidence of two statements taken from her by the Gardaí while she was in hospital recovering from her injuries. One of the two remaining grounds of appeal concerned the trial judge's charge to the jury and the other ground related to the trial judge's ruling on the admissibility of forensic evidence to the effect that a clump of hair found in the injured party's bedroom had been forcibly pulled from her head.

Held by Sheehan J that, in light of the written and oral submissions, a basic question arose for the Court's consideration namely: did the appellant receive a fair trial? Sheehan J held that the admission of the complainant's statements without any engagement with the Criminal Justice Act 2006 s.16(4)(a) issues that had been legitimately raised by defence counsel, coupled with the failure of the trial judge to intervene when the principal witness refused to answer questions resulted in unfairness to the accused. The Court was satisfied that the manner of the presentation of the medical evidence of one Prof. Cusack to the jury also resulted in substantial unfairness to the appellant. As a result of these matters, the Court was not satisfied that the appellant received a fair trial.

Sheehan J held that he would allow the appeal against conviction.

Appeal allowed.

JUDGMENT of the Court delivered on the 10th day of October 2016 by Mr. Justice Sheehan

1 Following a six day trial at Cork Circuit Criminal Court, the appellant Anthony Kelleher was convicted of assault causing harm to his wife Siobhan Kelleher at their family home in Macroom, Co. Cork on the 12th June, 2014 and was subsequently sentenced to eight years imprisonment. He now appeals against conviction and sentence. This judgment is concerned solely with the appeal against conviction.

2 The critical prosecution evidence comprised of two statements made by the principal witness, Mrs. Siobhan Kelleher, when she was a patient in hospital following the injuries she suffered. These statements were admitted in evidence pursuant to s. 16 of the Criminal Justice Act 2006, following Mrs. Kelleher's refusal to give evidence during the trial. In the first of these statements the injured party stated that the appellant had pulled her out of bed by her hair, thrown her across the corridor and down the stairs. In a subsequent statement taken from her by another member of An Garda Síochána four days later she elaborated in considerably greater detail as to what had happened on the day in question. In the second statement, she described being pulled out of bed by her pony tail which resulted in clumps of her hair coming out. She described being thrown down the stairs and kicked a number of times by her husband as he did so. She did not remember anything else about the assault and the next thing she remembered was waking up in hospital.

3 The prosecution also called evidence that the appellant had called an ambulance for his wife on the day in question and told the paramedics who brought her to hospital that his wife had fallen down the stairs. A statement made by the appellant to the gardaí was also admitted in evidence. In the course of that statement, the appellant alleged his wife had fallen down the stairs. The prosecution also led evidence concerning the finding of clumps of hair in the family bedroom of the injured party to the effect that this hair had been pulled forcibly from her head. Medical evidence of the injuries received by Mrs. Kelleher was given by a consultant surgeon at Cork University Hospital.

4 The defence called two witnesses at trial. Prof. Cusack was the principal defence witness and the main thrust of his evidence was that the injuries received by Mrs. Kelleher were consistent with falling down the stairs. Anne Horgan, a solicitor who had been present at family law proceedings in Cork District Court was the second defence witness. She stated that she was present when Mrs. Kelleher gave evidence on oath in the District Court. She said that Mrs. Kelleher had said that all she remembered was collapsing at the clothes line and nothing else. She said that Mrs. Kelleher said she certainly would have had a few drinks that day. Ms. Horgan also gave evidence that the complainant said that when she was being interviewed in the first couple of days following her admission to hospital she was not stable enough to talk and she did not understand what was happening. Ms. Horgan further stated that the injured party had said she had no explanation of her meeting with the social worker. She said she was told she fell down the stairs, but she could only recall being at the clothes line. She said that Mrs. Kelleher spoke about not being coherent and being delirious when she was in hospital.

5 While the appellant has filed nine grounds of appeal, the first seven of these relate to issues arising out of the refusal of the principal prosecution witness Mrs. Kelleher to give evidence and the subsequent admission into evidence of two statements taken from her by the gardaí while she was in hospital recovering from her injuries. One of the two remaining grounds of appeal concerns the trial judge's charge to the jury and the other ground relates to the trial judge's ruling on the admissibility of forensic evidence to the effect that a clump of hair found in the injured party's bedroom had been forcibly pulled from her head. In light of the written submissions and in the course of oral submissions in this case it became clear that a basic question arose for our consideration namely: did the appellant in this case receive a fair trial.

6 Three issues critical to a consideration...