DPP v Kenny
| Jurisdiction | Ireland |
| Judgment Date | 07 October 2003 |
| Neutral Citation | 2003 WJSC-CCA 3809 |
| Date | 07 October 2003 |
| Docket Number | [C.C.A. No. 137 of 2000] |
| Court | Court of Criminal Appeal |
AND
2003 WJSC-CCA 3809
THE COURT OF CRIMINAL APPEAL
Synopsis:
CRIMINAL LAW
Assault
Fair procedures - Charging of injury - Common design - Equality between co-accused - Empanelling of jury - Whether applicant received fair trial - Whether trial procedures properly conducted - Whether conviction safe - Offences Against the Person Act, 1861 (137/2000 - Court of Criminal Appeal - 7/10/2003)
People (DPP) v Kenny - [2003] 4 IR 162
The applicant sought leave to appeal against his conviction for assault and violent disorder. The applicant had a number of grounds of appeal. In the main it was contended that the trial judge had unfairly directed the jury with regard to the applicant. It was also contended that the trial judge had given unconstitutional directions to the jury with regard to 'like verdicts'. In addition it was argued that the trial judge had empanelled the jury in an unlawful manner. It was submitted that the trial judge had engaged a number of potential jurors in conversation which was inaudible and that if a potential juror had a difficulty the reason should be stated in open court.
Held by the Court of Criminal Appeal (Denham J; Kelly J and Ó Caoimh J) in an at tempore judgment dismissing the application, the empanelling of the jury was carried out correctly. The learned trial judge's initial charge to the jury was incorrect, however the subsequent re-charging was correct and had rectified any mistakes in the earlier charge. The trial had correctly dealt with the law of common design in his charge to the jury. The applicant had not raised any grounds on which the court could grant his application.
Reporter: R.F.
Citations:
OFFENCES AGAINST THE PERSON ACT 1861 S47
CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15
DPP V HAUGH 2000 1 IR 184
JURIES ACT 1976 S15(3)
CRIMINAL JUSTICE ACT 1984 S25(1)
CRIMINAL JUSTICE ACT 19841984 S 25(3)
DPP V CUMBERTON UNREP BLAYNEY 5.12.1994 1995/2/495
AG V TAYLOR 1974 IR 97
Judgment of the Court delivered on the 7th day of October, 2003 by Denham J.
This is an application for leave to appeal by William Kenny, the applicant, hereinafter referred to as the applicant. The applicant seeks leave to appeal against his conviction.
The applicant is on bail, which was granted by the Court of Criminal Appeal on the 26th July, 2000.
The applicant was convicted on the 17th May, 2000 by Dublin Circuit (Criminal) Court of the offences of assault occasioning actual bodily harm on Alan Byrne (contrary to s. 47 of the Offences Against the Person Act, 1861) and of violent disorder (contrary to s. 15 of the Criminal Justice ( Public Order) Act, 1994) on the 14th day of May, 1996, as set out in indictment bill number 1129/98. The applicant was sentenced on the 7th June, 2000 to twenty months imprisonment in respect of each of the said offences, the sentences to run concurrently.
The notice of application for leave to appeal set out 20 grounds of appeal. These were:
1. The learned trial judge erred in law in refusing to grant leave to appeal to the applicant on foot of grounds 2, 5 and 19 herein.
2. The learned trial judge erred in law:
(a) in directing the jury that the jury was required as a matter of law to return like verdicts on all three counts on the indictment in respect of the accused;
(b) in refusing to accede to the requisition of counsel for the Director of Public Prosecutions and for the accused as to the said direction requiring like verdicts.
3. The learned trial judge erred in law in directing the jury:
(a) that it was open to the jury to find that at the general meeting of residents, a common design was entered into by those present to move by force from the area, drug dealers and users;
(b) that any person who:
(i) were in the crowd which subsequently confronted individuals at the Ice Rink in Dolphin's Barn with the definite purpose of "moving drug dealers out"; and
(ii) followed to the location of the subsequent confrontation in Fatima Mansions; and
(iii) were present in the Basin Lane area,
2 were as a matter of legal definition acting in concert with eachother; in particular since the said direction was inconsistent with the reasoning which the learned trial judge applied in directing a verdict of not guilty in respect of certain co-accused.
4. The learned trial judge erred in law in failing to direct the jury adequately as to the law relating to common design and in particular:
(a) by failing to direct the jury that a party to a common design was not liable for such acts of other parties to that common design as went beyond the scope of that common design;
(b) by failing to direct the jury as to the appropriate legal and factual considerations to be taken into account in determining whether the applicant had withdrawn from a common enterprise.
5. The learned trail judge erred in law when, after over seven hours of deliberation by the jury, the foreman stated that the jury's deliberations on the basis of the said original charge were deadlocked, the learned trial judge:
(a) recharged the jury in terms that the jury was entitled to enter different verdicts in respect of each of the charges in respect of the appellant; and
(b) failed to direct the jury to record a disagreement forthwith or to continue to deliberate on the basis of the original charge; or
(c) failed otherwise to discharge the jury; or
(d) failed to recharge the jury as to the appropriate principles of law and relevant factual matters which should have guided the jury's consideration of separate verdicts in respect of individual counts.
6. The said direction in respect of the formation of common design at the said meeting was:
(a) without basis in evidence;
(b) contrary to the specific concession made by counsel for the D.P.P. in his closing address that there was nothing to suggest such formation; and
(c) inconsistent with the reasoning applied by the learned trial judge in directing verdicts of not guilty in respect of certain co-accused.
7. The learned trial judge erred in fact and in law in failing to direct the jury that the applicant and the residents of the relevant areas were entitled to use peaceful and lawful means to encourage drug dealers and users to leave the area.
8. The learned trial judge erred in fact and in law in suggesting to the jury that a defence of justification had purportedly been raised and in directing the jury that nothing justifiable had been done on the relevant night.
9. The learned trial judge erred in law in failing to correct at a sufficiently early state or at all, the error in law made by counsel for the D.P.P. in his opening address to the jury which misinformed the jury as to the legal definition of assault as being "any interference against the will of a person" or "any unwanted or unwelcome touching."
10. The learned trial judge erred in law and in fact in failing to direct the jury:
(a) as to the legal and factual considerations relevant to [the] applicant's presence, activity and purpose in the vicinity of the entrance to Basin Lane; and
(b) in particular that if the jury found that it was reasonably possible that the applicant's presence at or in the vicinity of the entrance to Basin Lane was innocent, then the jury was obliged to act on such a finding, in particular having regard to the fact that the learned trial judge directed a verdict of not guilty in respect of certain co-accused inter alia on the grounds that the jury would have to be so directed and would be obliged to make such a finding and act upon it.
11. The learned trial judge erred in law and in fact in respect of the evidence of Fiona O'Brien, in particular:
(a) in permitting counsel for the D.P.P. to cross-examine the said witness in the absence of the jury without first making a finding that the said witness had shown signs of hostility;
(b) in permitting the D.P.P. to adduce before the jury the evidence which had been procured by means of the said cross-examination;
(c) in charging the jury in respect of the said evidence:
(i) by failing to direct the jury that the reliability of the said evidence was open to doubt having regard to the manner in which it was procured;
(ii) by failing to make clear that the said evidence was not to the effect that the applicant had come out of Basin Lane in the company of Ronald Byrne and John Fitzpatrick.
12. The learned trial judge erred in law and in fact in respect of the evidence of Sandra Doyle, in particular,
(a) in permitting the D.P.P. in the presence of the jury, to put to the said witness a grossly prejudicial content of a statement acknowledged to have been signed by her;
(b) in failing to direct the jury that the said witness's reliability had been impugned by the D.P.P. and that the reliability of her evidence that the applicant was holding a stick on the Dry Canal was therefore open to doubt;
(c) in failing to direct the jury that the failure by several other prosecution witnesses to suggest that the applicant had in his possession a stick cast doubt on Sandra Doyle's evidence to that effect.
13. The learned trial judge erred in law and in fact in respect of the evidence of Karen Kennedy in particular:
(a) in failing to give an accomplice warning to the jury in respect of the evidence of Karen Kennedy;
(b) in failing to direct the jury that the reliability of her evidence that the applicant used violence in Dolphin's Barn was open to doubt, in particular having regard to the fact that the learned trial judge directed a verdict not guilty in...
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