DPP v Larkin

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IECCA 138
• Date: 19 December 2008
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 129 of 2007],[C.C.A. No. 129 of 2007] [2008] IECCA 138

BETWEEN

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

RESPONDENT

AND

DARREN LARKIN

APPLICANT

[C.C.A. No. 129 of 2007]

[2008] IECCA 138

COURT OF CRIMINAL APPEAL

Abstract:

Criminal law - Appeal - Evidence - Admissibility - Identification - Video film - Gardaí making identification of person known to them from video footage - Whether prejudicial effect outweighing probative value - Whether admissible - Whether conviction should be quashed

Sentence - Severity - Whether excessive - Whether sentences should be varied.

Facts: the applicant had been convicted of attempted murder and possession of a firearm and ammunition with intent to endanger life for which he had been sentenced to life imprisonment in respect of the attempted murder and twenty years in respect of each of the forearms offences, all sentences to run concurrently. He applied for leave to appeal against conviction on the ground that the court had erred in admitting the identification evidence from CCTV footage tendered by gardaí in that its prejudicial effect outweighed its probative value. He also submitted that the sentences were excessive and disproportionate.

Held by the Court of Criminal Appeal in affirming the conviction and varying the sentences to fifteen years for attempted murder and ten years each for the firearms offences, that the requirement to conduct a balancing exercise between the probative value of identification evidence against the possible prejudice to the accused could only be undertaken by examining the particular facts of each case. If identification evidence was available from police officers and could be given in circumstances where the probative value of the evidence outweighed the prejudicial effect, there was no reason why such evidence should not be given.

That a sentencing judge was entitled to take prevalence of a particular crime into account to justify a sentence which contained a deterrent element. However, the sentencing judge erred in approaching the matter of sentence by eliding the difference between attempted murder and murder itself.

Reporter: P.C.

1 JUDGMENT of the Court delivered by Mr. Justice Kearns on the 19th day of December, 2008

2 Following a trial in the Central Criminal Court the applicant was convicted by a jury on 23rd April, 2007 of the attempted murder on 20th February, 2006 of one Akef Alquasar at Leisureplex, Blanchardstown Shopping Centre, Dublin 15. The applicant was also convicted on that date of possession of a firearm with intent to endanger life and possession of ammunition with intent to endanger life. The matter was put back for sentence until 4th May, 2007 when the trial judge (De Valera J.) sentenced the applicant to life imprisonment in respect of the offence of attempted murder and to a term of twenty years in respect of each of the firearms offences, all of the said sentences to run concurrently.

3 The applicant did not contest the evidence that Mr. Alquasar had been shot at the Leisureplex on the date in question, but denied that he was the person who had shot him.

4 In so far as the conviction is concerned, the only ground of appeal is that stated in the Notice of Application for Leave to Appeal as follows:

5 "The learned trial court erred in law or in fact or a combination of both in admitting the evidence of Sergeant Edward Carroll and Garda Paul McManus of the purported identification of Darren Larkin from the CCTV footage on the grounds that such evidence was, in all the circumstances, more prejudicial than probative. In particular the admission of such evidence restricted the ability of the defence to test the credibility and accuracy of such evidence as the two witnesses are members of An Garda Siochana who knew the appellant and the evidence should not have been allowed to go before the jury."

6 In so far as the sentences are concerned, the applicant further argued during the course of the appeal before this Court that the trial judge erred in failing to accede to the application by defence counsel not to hear evidence of the prevalence of gun crime in the Blanchardstown area prior to the sentencing of the applicant and in attaching excessive weight or significance to the requirement of deterrence when structuring the said sentences. Counsel for the applicant also argued that the sentences were in any event excessive and disproportionate having regard to the personal circumstances of the applicant and having regard to the fact that his previous convictions were of a different and less serious nature and bore no similarity to the offences for which he was convicted.

7 BACKGROUND

8 The evidence at trial was that the injured party, Akef Alquasar, was working as a security guard at the Leisureplex in Blanchardstown in February, 2006. Between 4 a.m. - 5 a.m. on 20th February, 2006 the applicant entered the Leisureplex armed with a sawn-off shotgun. Although the applicant's face was partly concealed, a portion of his face was visible and Mr. Alquasar gave evidence that he immediately recognised the intruder as the applicant, stating that the applicant lived around the corner from where he lived and that he had known the applicant since he was five or six years of age. The applicant ran towards Mr. Alquasar who shouted " Larkin you bastard you" at which point the applicant fired a shot from a distance of about seven or eight metres which hit Mr. Alquasar on the side of the head. He heard his attacker saying " Got you, you cunt you". Mr. Alquasar said he recognised the voice as that of the applicant, saying he knew his voice very well. Despite having been hit, Mr. Alquasar dived behind a counter where bowling shoes were stored and began throwing them at his attacker. During this

9 time, the applicant was reloading the gun and although Mr. Alquasar continued throwing shoes at him the applicant then fired a second shot at him before running from the building. Mr. Alquasar told the court he followed Larkin outside and shouted " Larkin, you fucking bastard, I am going to get you".

10 Under cross-examination, Mr. Alquasar confirmed there were bright lights in the admission area of the complex and inside also, and that while the applicant's face was partially concealed, he had a good opportunity to identify him and that he did in fact recognise him as Darren Larkin.

11 The evidence given at trial by Mr. Alquasar was supported in a number of respects by the evidence of Mr. Anthony Smithers who was playing the poker machines in the Leisureplex on the morning of the shooting. He heard something which he had first thought was the sound of balloons bursting, but then he heard shouting and screaming. He walked to the reception area and saw Mr. Alquasar throwing bowling shoes at another man. He saw that the other man had a gun and had opened it. The evidence of Mr. Smithers was that the first shot had been fired but the second was faulty, and as the man then walked back towards him he ran. He heard Mr. Alquasar shouting and throwing bowling shoes, and the man with the gun then got off a second shot. Mr. Smithers gave evidence that as the attacker left, Mr. Alquasar chased after him and he heard Mr. Alquasar shouting " Larkin, you bastard, I am going to get you". This evidence was not contested by the defence.

12 Another witness, Mr. Andrew Kennedy, gave evidence of having seen a man with a gun enter the Leisureplex on the morning of the offence, but he said the man had his face covered and he could not remember details of his clothing. Shortly afterwards he heard a bang and saw the man emerge and run to a car.

13 Part of the incident was captured on CCTV at the Leisureplex. Two gardai gave evidence to the jury that they recognised the applicant when the CCTV footage showing the man entering the premises was played to them. It is the admission of the evidence of the two gardai that is the one ground of appeal against conviction. The learned trial judge admitted the evidence in question at the conclusion of a voir dire hearing on the issue.

14 Sergeant Edward Carroll said that when he saw the film on 21st February, 2006 he recognised the man carrying the firearm as the applicant. Sergeant Carroll said that he had worked as a garda in Blanchardstown District from 1995 to 2006 and that in the first four years of that period he was a community policeman. He gave evidence that this role involved " a lot of interaction with the general public in relation to neighbourhood watch, schools programmes, a lot of beat work and interaction with the community in relation to that", and that he had done some more beat work and mobile patrols in the area in the following years. Sergeant Carroll said he had constant interaction with the public in the course of his duties in Blanchardstown and that he had known Darren Larkin for about ten years. He was one hundred percent convinced it was Darren Larkin in the footage that he had viewed. He confirmed at the time he viewed the CCTV footage that he was aware that Mr. Alquasar had alleged that the applicant was his attacker and further confirmed, though only in reply to a question asked on behalf of the applicant, that he had arrested the applicant on a prior occasion. This was said in the voir dire only.

15 Garda Paul McManus gave evidence that he viewed the footage from the Leisureplex on 3rd March, 2006 and he recognised the man who appeared to be carrying a firearm as Darren Larkin. Garda McManus said he had served in the community policing unit of Blanchardstown Garda Station from September, 2003 to December, 2005 and most of his work was on the beat around the estates of Sheepmoor, Fortlawn and Whitestown. He said he recognised Darren Larkin because he had known him from early in his period as a community garda in Blanchardstown. He stated in evidence: " As a community garda on the beat you would bump into groups of youths...