DPP v Lee

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 20 July 2004
• Neutral Citation: [2004] IECCA 18
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 13 of 1999]
• Date: 20 July 2004

[2004] IECCA 18

THE COURT OF CRIMINAL APPEAL

Murray, J.

Lavan, J.

O'Caoimh, J.

[CCA. No. 13 ofl999]

DPP v. LEE

THE PEOPLE AT THE SUIT OF THE DI0RECTOR OF PUBLIC PROSECUTIONS

Respondent

And

LYNDA LEE

Applicant

Citations:

LARCENY ACT 1916 S2

CRIMINAL LAW (JURISDICTION) ACT 1976 S9

DPP V COONEY 1997 3 IR 205

DPP V O'REILLY 1990 2 IR 415

AG V FAGAN 1974 1 FREWEN 375

AG V MARTIN 1956 IR 22

AG V CASEY (NO 2) 1963 IR 33

AG, PEOPLE V O'DRISCOLL 1972 1 FREWEN 351

Abstract:

Criminal law - Appeal against conviction - Visual Identification evidence - Whether in the circumstances a formal identification parade should have been held

Facts: The applicant sought leave to appeal from her conviction of the offence of larceny. The main ground of appeal related to the visual identification evidence and specifically the failure by the Gardai to hold a formal identification parade and the absence of any justification or explanation for not holding one. It was submitted on behalf of the applicant that the identification procedures adopted in this case were so inadequate, unfair and unsatisfactory as to render the verdict unsafe.

Held by the Court of Criminal Appeal (Murray, Lavan, O'Caoimh JJ)in allowing the appeal: 1. That serious frailties occurred in the informal identification, which occurred in the courtroom. Furthermore, the applicant was identified as a suspect very soon after the offence had been committed and accordingly this was a classic case in which a formal identification parade should have been held.

2. That while the trial judge's warning to the jury complied with the general and minimum warning that should be given to a jury in a case which depends substantially on visual identification it did not reflect the need to amplify that warning and explain its implications in the particular circumstances of the case. Specifically, the trial judge made no reference to the fact that no identity parade took place. He did not refer to the fact that the other persons in the courtroom at the time the identification took place were a cross-section of women of a wide range of different ages, different hair colour and of whose general presentation and looks there was otherwise no evidence from the prosecution. The trial judge put only the prosecution case to the jury.

3. That the failure by counsel for the applicant to requisition the trial judge to recharge the jury regarding the visual identification evidence should not prevent the court from quashing the unsafe conviction and sentence.

Reporter: L.O'S.

1 Judgment of the court delivered by Murray J. on the 20th day of July, 2004

2 The applicant in this case seeks to appeal from her conviction in the Circuit Criminal Court of the offence of stealing a ladies black leather jacket, from a shop known as Elegance Fashions, Balbriggan, Co. Dublin on the 5th October, 1996, contrary to s.2 of the Larceny Act 1916 as inserted by Section 9 of the Criminal Law (Jurisdiction) Act 1976. The applicant was convicted after trial by jury and subsequently sentenced to six weeks imprisonment. She was subsequently released on bail pending this appeal.

3 The grounds of appeal against her conviction relied upon by the applicant are as follows:-

4 (a) The learned trial judge erred in law in allowing the trial on a charge of stealing a ladies black leather jacket to go ahead when it was brought to his attention that it was only "an imaginary coat", (there being no exhibit and no evidence before the court that the ladies black leather jacket in question ever existed).

5 (b) The learned trial judge erred in law not taking a serious view of the fact when it was brought to his attention that the evidence of the sole witness, Eileen Donnelly at the trial contradicted her evidence taken on deposition in Balbriggan District Court by Judge Delap.

6 (c) The learned trial judge erred in law in allowing the evidence of Ms Eileen Donnelly identifying the applicant in court during the trial as the person who stole the coat in question to be considered by the jury having regard to the evidence that she was not given an opportunity to stand in an identification parade.

7 (d) The learned trial judge erred in law when addressing the jury in advising them not to be concerned if they made a mistake in their decision as a higher court than this court would rectify their verdict if they were wrong.

8 It may be noted that grounds of appeal in this case were first lodged on behalf of the applicant by her then solicitor shortly after her trial and conviction. Two days later she lodged grounds of appeal in person and those are the above grounds. Her then solicitor was discharged. Subsequently an application to amend and add other grounds of appeal was initiated on her behalf by her present solicitor. At the hearing of this appeal her counsel stated on her behalf that she wished to confine her appeal to the grounds outlined above and originally lodged by her.

Background Facts

9 The evidence before the trial court was that Ms Eileen Donnelly carried on the business of a ladies boutique in a shop called "Elegance Fashions" in Bridge Street, Balbriggan, Co. Dublin. She gave evidence that at approximately 4.00pm on the date of the offence two ladies came into the shop and walked around looking at the stock for about five minutes. She was dealing with a customer and on being alerted by a friend she looked around and saw the two ladies going out the shop door, one of them with a leather jacket folded across her arm. She recognised it as one of her jackets, being the only one of its kind in stock. She went out the door after them and they started to run. She ran after them. They turned light down Quay Street and she proceeded behind them. As she approached them they got into a car and drove away. She took the number of the car. She wrote it down and reported the matter to the gardaí and gave them the car registration number. In evidence she gave a description of both ladies. In her evidence she identified the accused, whom she described, inter alia, as "the blonde lady," as the person who had the jacket over her arm. She did this by pointing her out in the courtroom. She went onto to give evidence that she had been asked by the gardaí to go to the District Court in Balbriggan on 10th October, 1996. She gave evidence that she went into the District Court room on that occasion in the presence of Garda Wynnewhere there were roughly about nine or ten woman in all in the courtroom. She recognised and identified the accused who was sitting in the courtroom as being the person who had walked out of her shop with the overcoat without paying. She went onto add that prior to going to the District Court she went for a cup of coffee in a nearby café. She had also recognised the accused there who was having breakfast in the café before the witness went into the courtroom.

10 The garda evidence was that the applicant was the registered owner of the motor car bearing the registration number noted and given to them by Ms Donnelly. The applicant in her evidence admitted that this was so and it was expressly acknowledged on her behalf by her counsel that the car which the witness said the two ladies got into was in fact the applicant's motorcar. As regards the identification of the applicant made by the witness it was put to Ms Donnelly that the other women who were in the District Court, where the witness identified her, were people known as "travelling people". The suggestion was made that the applicant was very obviously different from the rest of the women there. The response of the witness was that she did not think everybody in the court that day were travelling people, that she just recognised the applicant when she went in.

11 Garda Wynne gave evidence of having gone, with a garda colleague, to the home of the applicant after he had ascertained that she was the registered owner of the motor car in question. He had a search warrant. He searched the premises and did not find anything. He noted the motor car bearing the registered number in question parked in the garage. He gave evidence of having arrested the applicant and bringing her to Balbriggan garda station. She made no statement while in custody. She was charged and released on bail to appear before Balbriggan District Court on 10th October, 1996. The witness then gave evidence of meeting Ms Eileen Donnelly by arrangement outside the court and asking her to come into the court to look around and see if she could identify any person. He made a note of approximately ten ladies ranging from approximately 16 or 17 years of age up to the mid-fifties. He referred to them generally as a cross-section of people. Immediately Ms Donnelly identified the applicant as a person who took the jacket from her shop on the date of the offence. He did not make any note of any "lady travellers". "Basically it was just a cross-section."

12 The applicant was called to give evidence. She outlined how she had advertised two bunk beds for sale on a notice board in a Superquinnsupermarket. She explained how as a result of this a Mr Anthony Murphy telephoned her to indicate that he was interested in purchasing them. As a result of this he came to her house by arrangement at 4.00pm on Saturday, 5th October, 1996. He purchased the beds and took them away in a white van in which he had arrived. She stated that she never left her house on any occasion on that Saturday and was not at any time in Balbriggan. As regards her motor car she stated that her parents normally came to stay with her on a weekend. They came that Saturday and her mother and father took the car to go and do some shopping that afternoon. That was the motor car bearing the registration number referred to in the evidence of Ms Donnelly. She stated that her parents told her that they were going out to do some shopping. They did not...