DPP v Lacy
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 12 May 2005 |
| Neutral Citation | [2005] IECCA 70 |
| Date | 12 May 2005 |
| Court | Court of Criminal Appeal |
| Docket Number | [C.C.A. No. 13 of 2005] |
[2005] IECCA 70
THE COURT OF CRIMINAL APPEAL
DENHAM J.
HERBERT J.
GILLIGAN J.
And
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3
REG v OLIVA 1965 49 CAR 298 1965 1 WLR 1028 1965 3 ALL ER 116
ADEL MUHAMMAD EL DABBAH v AG FOR PALESTINE 1994 2 ALL ER 139
R v RUSSELL JONES 1995 3 ALL ER 239
DPP v CASEY UNREP CCA 14.12.2004
CRIMINAL LAW
Evidence Witness contained in book of evidence - Witness called by prosecution in first trial - Application at retrial not to call witness - Whether trial judge erred in law in acceding to application - Reg v Oliva [1965] 1 W.L.R. 1028 followed - People (DPP) v Casey [2004] IECCA 49 (Unreported, Court of Criminal Appeal, 14/12/2004) distinguished - Appeal allowed (13/2005 - Court of Criminal appeal - 12/5/2005) [2005] IECCA 70 People (DPP) v Lacy and Ryan
Facts: the applicant was convicted of assault in the Circuit Court following a re-trial when the jury failed to agree in the initial trial . He applied for leave to appeal to the Court of Criminal Appeal on the ground that the trial judge erred in permitting the prosecution to remove a witness from the book of evidence without calling him, thereby forcing the witness to be called as a defence witness. That witness had been called in the initial trial and the trial judge in the second trial acceded to the prosecution request that he not be called on the basis: i) that his evidence would be inconsistent with its own case and other prosecution witnesses and; ii) that he had come to their attention through the accused.
Held by the Court of Criminal Appeal (Denham J; Herbert and Gilligan JJ) in allowing the appeal and quashing the conviction that, at the root of every criminal trial was the constitutional guarantee of justice and fair procedures. Prosecuting counsel retained a discretion, which had to be exercised fairly and in the interests of justice, as to how a prosecution would proceed, including as to the calling of witnesses.
A discretion whether or not to call a witness remained after a book of evidence was compiled. However, the trial judge has a discretion to intervene in the exercise of that discretion as to the calling of witnesses where the requirements of a fair and just trial required such an intervention. That the two reasons for de-listing the witness were not valid reasons for treating his evidence as unreliable and the deicsion to de-list the witness was unfair.
Reporter: P.C.
12th day of May, 2005 by Denham J.
1. Mark Lacy, the applicant, has brought an application seeking leave to appeal against conviction and sentence. The applicant was convicted on the 28 th January, 2005, by the Dublin Circuit (Criminal) Court, and sentenced on 4 th February, 2005, to three years imprisonment, with the last twelve months suspended.
2. The applicant was charged with the offence of assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act, 1997. The particulars were that the applicant on the 5 th January, 2003, at Maynooth Road, Leixlip, in the County of Kildare, assaulted John Tansey, causing him harm.
3. The applicant filed grounds of appeal as follows:
(a) The learned trial judge erred in law in allowing the prosecution to remove a witness from the book of evidence without either calling or tendering him, thereby forcing that witness to be called as a defence witness.
(b) The learned trial judge erred in law in not withdrawing the case from the jury on the grounds that the prosecution had failed to satisfy the standard of proof.
(c) The verdict of the jury went against the weight of the evidence.
(d) In all the circumstances the conviction is unsafe and unsound.
However, before the court the grounds were confined to a single issue. The applicant submitted that the learned trial judge erred in law in all the circumstances in permitting the prosecution to remove a witness from the book of evidence without either calling or tendering him, thereby forcing the witness to be called as a defence witness, and that as a consequence the conviction was unsafe.
4. The background to this case is that the applicant was originally tried in the Dublin Circuit (Criminal) Court, and the jury was unable to agree. The Director of Public Prosecutions directed that he be retried. New counsel for the Director and new counsel for the applicant were appointed, and the matter came on for trial before a different judge. The applicant was found guilty and was sentenced to a term of imprisonment of three years, with the last 12 months suspended.
5. The trial court refused leave to appeal but legal aid was granted in the event of an appeal.
6. The applicant sought bail from this Court which was refused, but he was given priority in the list. In light of the circumstances this judgement is also being delivered with urgency.
7. The factual background to the case was set out in the submissions for the applicant and I draw on that information. The facts were not in dispute. The case against the applicant was set out in the book of evidence. He was alleged to have assaulted John Tansey on the 5 th January, 2003, by giving him a head-butt from which John Tansey received an injury requiring five sutures. The book of evidence contained:
(i) A statement of John Tansey
(ii) Statements from a number of alleged eye witnesses who supported the account of the incident given by the alleged injured party and, who were friends of his.
(iii) Statements of members of an Garda Síochána who investigated but who did not actually witness the assault.
(iv) A statement of Darragh O'Regan which directly contradicted the account offered by the alleged injured party, but which was consistent with the statement of the applicant.
(v) A statement from a doctor setting out details of the medical treatment given to John Tansey.
(vi) A voluntary statement made by the applicant.
8. In the applicant's statement to the Garda Síochána he admitted being in a fight with John Tansey but he maintained that John Tansy head-butted him and was the aggressor. This version of events was supported by the statement of Darragh O'Regan.
9. In essence this was a prosecution arising out of somewhat confused events. There was an altercation outside a night club in the early hours of the 5 th January, 2003. The State alleged in the prosecution that some time after 2.00 a.m. John Tansey left the night club with a number of friends, went out and crossed the road. He later came back with another friend to look for or to wait for more friends. He was approached by a person named Jenny Taaffe and some words were exchanged. At that stage a man approached him and head-butted him for no reason. There was no provocation and there was no threat. He ran away but slipped and fell to the ground. This man continued to attack him on the ground.
The applicant, on the other hand, had a different version of the events. He gave evidence of an altercation outside the night club, "a bit of mouthing back and forward", between John Tansey and himself, and the two of them going head to head. He said that John Tansey head-butted him.
This event occurred in the early morning, outside a night club, where young people were gathered, after consuming alcohol, and an altercation occurred. This is a difficult type of situation both to investigate and to assess. The evidence presented by the prosecution was in effect that of John Tansey and his friends.
10. The issue on this appeal revolves around the evidence of Darragh O'Regan. At the initial trial the jury were unable to agree. At that trial Darragh O'Regan was called as a prosecution witness.
11. On the retrial the prosecution called witnesses and John Tansey. They told the same story as in their statements. Each maintained that John Tansy had not been the aggressor and those who claimed they saw the incident said that John Tansey had received the head-butt not given it. A medical consultant was called by the State who reviewed the medical notes relating to John Tansey. On cross examination he agreed that the injury could have been caused by someone giving a head-butt as well as someone receiving a head-butt, and that there was no way to tell from the injury how exactly it had been caused.
12. Counsel for the prosecution, in the absence of the jury, asked the learned trial judge to grant him liberty from having...
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