DPP v Kiely

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 21 March 2001
• Neutral Citation: 2001 WJSC-CCA 1883
• Court: Court of Criminal Appeal
• Date: 21 March 2001

2001 WJSC-CCA 1883

COURT OF CRIMINAL APPEAL

McGuinness, J.

O'Sullivan, J.

Finnegan, J.

Record No. 68/99

DPP v. KIELY

BETWEEN

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

v

KEITH KIELY

APPLICANT

Citations:

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(5)

CRIMINAL DAMAGE ACT 1991 S4(a)

DPP V MCGUINNESS 1978 IR 189

FIREARMS & OFFENSIVE WEAPONS ACT 1990 S9(6)

AG V BYRNE 1974 IR 1WOOLMINGTONS CASE 1935 AC 462

R V HEPWORTH 1955 2 QB 600

AG V O'CONNOR 1935 IJR 1

AG V BERBER & LEVEY 1944 IR 405

Synopsis:

Criminal Law

Criminal; evidence; sentencing; applicant appealing against conviction and sentence for three counts of assault and possession of an offensive weapon in a public place for damaging property; whether trial judge erred in admitting evidence in question; whether interruptions of evidence by trial judge excessive; whether trial judge erred in leaving count to jury; whether omission of specific words concerning the benefit of the doubt in the trial judge's charge to the jury relating to the burden and standard of proof could have led to a miscarriage of justice; whether trial judge erred in principle in imposing sentence, in that he did not take into account all proper considerations.

Held: Appeals dismissed.

DPP v. Kiely - CCA: McGuinness J., O'Sullivan J., Finnegan J. - 21/03/2001

The applicant had been convicted of a number of offences arising out of an assault on a garda. The applicant sought leave to appeal claiming that prejudicial evidence had been admitted by the trial judge and that the trial judge had incorrectly described the concept of the burden of proof. Mrs. Justice McGuinness, delivering judgment, held that the evidence in question had been correctly admitted by the trial judge. The trial judge, although neglecting to mention ‘the benefit of the doubt’, had correctly instructed the jury with regard to the burden of proof. The application would be dismissed.

1 Mrs Justice McGuinness on the 21st day of March 2001

2 This is an application for leave to appeal against conviction and sentence arising from a one day trial before His Honour Judge O'Leary at Limerick Circuit Criminal Court at which the Applicant was found guilty on each of three counts.

3 The indictment charged as follows:

Count No. 1

4 Statement of Offence: assault causing harm contrary to Section 3 of the Non-Fatal Offences Against the Person Act 1997.

5 Particulars of offence: Keith Kiely did on the 24th October 1997 at O'Malley Park, Southill, Limerick unlawfully assault one Michael Murphy thereby causing him harm.

Count No. 2

6 Statement of offence: possession of an article in a public place contrary to Section 9(5) of the Firearms and Offence Weapons Act 1990.

7 Particulars of offence: Keith Kiely did on the 24th October 1997 at O'Malley Park, Southill, in the City of Limerick have with him in a public place an article to wit, a shovel, intended by him unlawfully to cause injury to a person either in a particular eventuality or otherwise.

Count No. 3

8 Statement of offence: possession of a thing for use in damaging property, contrary to Section 4(a) of the Criminal Damage Act 1991.

9 Particulars of offence: Keith Kiely did on the 24th day of October 1997 at O'Malley Park, Southill, Limerick, have under his control a thing to wit, a shovel, intending without lawful excuse to use it or cause or permit another to use it to damage property to wit, motor car registration 95 D 40335.

10 The Applicant pleaded not guilty to the offences set out in the indictment. He was tried before a judge and jury and found guilty by a majority verdict of the jury on all three counts. The Applicant was sentenced to:

11 (1) three years imprisonment on Count No. 1

12 (2) one year's imprisonment on Count No. 3.

13 The trial judge took Count No. 2 into account, but did not impose any sentence on that count. The sentences on Counts 1 and 3 were to run concurrently.

14 The grounds of appeal put forward by the Applicant are:

15 2 "1. The learned trial judge erred in law in admitting evidence of dangerous driving notwithstanding objection having been taken to some by Counsel for the Applicant.

16 2. The learned trial judge erred in law in falling to discharge the jury upon the applications made to him by Counsel for the Applicant.

17 3. The trial and the verdict of the jury were unsafe and unsatisfactory for the following reasons:

18 (a) Counsel for the prosecution during the course of the trial unfairly and without any valid reason interrupted cross-examination by Counsel for the Applicant for a central prosecution witness at a critical juncture of the trial.

19 (b) The learned trial judge acceded to an unwarranted application by Counsel for the prosecution which led to an unnecessary interruption of cross-examination of a central prosecution witness by Counsel for the accused at a critical juncture of the trial.

20 (c) The learned trial judge erred in law in asking questions of the accused which were in the nature of cross-examination and which said questions were not required for the purposes of clarification.

21 (d) The learned trial judge erred in law in communicating his views to the jury in regard to the credibility of the Applicant's responses to questions which were directed to him by the learned trial judge.

22 (e) The learned trial judge erred in law in making it clear to the jury that the Applicant was not to be believed.

23 4. The learned trial judge erred in law in failing to withdraw Count No. 2 from the jury's consideration.

24 5. The learned trial judge erred in law in failing to accede to a requisition concerning the learned trial judge's charge to the jury made by Counsel for the Applicant with regard to the learned trial judge's elucidation of the concept of “proof beyond reasonable doubt” and the said charge to the charge to the jury was inadequate for the said reason."

25 The only ground put forward for the appeal against sentence was that the sentence imposed was excessive in all the circumstances.

26 The first ground of appeal concerns the admission of certain prosecution evidence by the learned trial judge. This evidence was given by the first prosecution witness, Garda Patrick O'Callaghan, and concerned the period of time immediately before the incidents occurred which gave rise to the prosecution of the Applicant. The relevant portion of Garda O'Callaghan's evidence begins at page 9 of the transcript of the 24th March 1999. The witness is being examined by Mr Nix on behalf of the prosecution:

"Q.	I think you are a member of An Garda Station stationed at Roxboro Road Garda Station?
A.	That is correct My Lord.
Q.	And you were such on Thursday, 23rd October 1997?
A.	Yes My Lord.
Q.	I think on that date you started work at 8 p.m. and you were detailed beat patrol in O'Malley park with a colleague of yours, Garda McSweeney?
A.	That is correct, My Lord.
Q.	Can I ask you were you in or out of uniform?
A.	In uniform, My Lord.

Q.	At approximately 12.30 a.m. on the morning of Friday the 24th October 1997 where were you at that stage?
A.	I was on beat patrol walking up O'Malley Park, past No. 210/211 O'Malley Park.
Q.	Did something happen at that stage?
A.	A car was driven down the hill against us. It had no lights on. It was being driven at high speed and it was swerving from one side of the road to the other. It was an orange coloured Ascona, Opel Ascona, Opel Kadet, registration 9078 TI. It was being driven fairly recklessly down the road.
Q.	Did you do something as a consequence of this?
A.	I looked for assistance over the radio as were on beat patrol.
Q.	When you say you were on beat patrol, just for the record, what do you mean by that?
A.	I was walking.
Q.	So you called for assistance?
A.	And Detective Garda Michael Murphy answered our call and said he would be with us shortly.
Q.	Did he arrive?
A.	He arrived and Garda McSweeney and I got into the car. We drove up around the top of O'Malley Park.
Q.	Can I say that you would be experienced with O'Malley Park, is that correct?
A.	Yes, My Lord. I work there a lot of the time.
Q.	As a consequence of your experience. Did you go some place?
A.	We drove into an alleyway at the rear of 480 O'Malley Park. We commenced a search to look for the car that was being driven dangerously. On driving into the alleyway, I noticed a white Toyota car parked on the left had side on the way down
	the alleyway. We drove down to where the case was parked and, in the rear of 496 the car, the Opel, was parked, 9078 TI. It was parked on the left hand side in the back garden as you look in.

Q.	Did you do something?
A.	I got out of the car, as did my colleagues, Gardai McSweeney and Murphy. I had a confrontation with another person at the scene."

27 The witness then went on to give evidence of the events which gave rise to the charges against the Applicant. Similar and related evidence was given at the trial by the two other Garda witnesses.

28 At the start of the trial and before any of this evidence was given, Counsel for the Applicant, Mr O'Sullivan made an application to the trial judge in the absence of the jury for the exclusion of this evidence. He submitted that the dangerous driving of what was possibly a stolen car had no connection whatever with the Applicant or indeed with the offences of which he was accused. Yet if the evidence was given there was a danger that the jury would associate it in their minds with the conformation which had occurred at the rear of 496 O'Malley...