DPP v Lonergan

• Jurisdiction: Ireland
• Judge: Kearns J.
• Judgment Date: 08 May 2009
• Neutral Citation: [2009] IECCA 52
• Date: 08 May 2009
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 111 of 2008]

[2009] IECCA 52

COURT OF CRIMINAL APPEAL

Kearns J.

Murphy J.

Clarke J.

[C.C.A. No. 111 of 2008]

DPP v Lonergan

BETWEEN

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

RESPONDENT

AND

ALBIE LONERGAN

APPLICANT

DPP v MULDER 2007 4 IR 796 2007/20/4152 2007 IECCA 63

MCGRATH EVIDENCE 2005 PARA 5.53

RATTEN (LEITH MCDONALD) v R 1972 AC 378 1971 3 WLR 930 1971 3 AER 801

R v ANDREWS (DONALD JOSEPH) 1987 AC 281 1987 2 WLR 413 1987 1 AER 513

R v CARNALL 1995 CRIM LR 944

AG, PEOPLE v CROSBIE 1966 IR 490

R v CHRISTIE 1914 AC 545

TEPER v R 1952 AC 480 1952 2 AER 447

CRIMINAL LAW

Evidence

Hearsay rule - Res gestae - Whether statements contemporaneous - Whether possibility of concoction - Fair trial - Jury - Interference - Failure to discharge jury - People (AG) v Crosbie [1966] IR 490, Ratten v R [1972] AC 378, People (DPP) v Mulder [2007] IECCA 63, [2007] 4 IR 796 and R v Andrews [1987] AC 281 followed - Appeal dismissed (111/2008 - CCA - 8/5/2009) [2009] IECCA 52

People (DPP) v Lonergan

Facts: the appellant was convicted in the Central Criminal Court of the murder of his brother by stabbing. Evidence given by witnesses as to statements made by the victim shortly after the stabbing were admitted into evidence on the basis that they formed part of the res gestae and as such were admissible as evidence of the truth of their contents. The appellant appealed that conviction to the Court of Criminal Appeal on the basis that those statements had been improperly admitted into evidence. He also contended that the trial judge should have discharged the jury because of possible interference by a member of the victim's family with a jury member.

Held by the Court of Criminal Appeal (Kearns J., Murphy and Clarke JJ concurring) in dismissing the appeal that spontaneous declarations constituted an exception to the hearsay rule. Admissibility of evidence should not be determined solely by reference to a given time period as to do so would lead to arbitrary and unfair results. Time was an important factor but not a determinant. The true importance of contemporaneity was to eliminate the possibility of concoction. Where it was clear that that no such opportunity existed on the facts of a given case it would be wrong to exclude statements on some arbitrary time basis. In every case, the trial judge had to exercise his discretion having regard to the particular circumstances of the case. The statements of the witness, having been made ten minutes after the stabbing, were correctly admitted as they were sufficiently contemporaneous and formed part of the same transaction and there had been no opportunity on the part of the witness to concoct or fabricate an explanation.

In relation to the allegation that a jury member had been interfered with during the trial, the trial judge applied the correct test which was an objective one as to whether a reasonable person would have a reasonable apprehension that the accused would not receive a fair and impartial trial.

Attorney General v Crosbie [1966] IR 490 and DPP v Mulder [2007] 4 IR 796 applied.

Ratten v R [1972] AC 378 considered.

Reporter: P.C.

1 JUDGMENT of the Court delivered on the 8th day of May, 2009by Kearns J.

2 On 13 ^th December, 2007 the applicant was convicted in the Central Criminal Court of the murder of his brother, Michael Lonergan, at 58 Baloonagh Estate, Tralee, County Kerry, on 31 ^st December, 2006. The evidence established that shortly after 6 p.m. on the date in question an altercation broke out between the two brothers outside the porch of the dwelling house in question in the course of which Michael Lonergansustained two stab wounds to the chest and one stab wound to the right thigh as a result of which he died later on the same day. The prosecution sought successfully to lead evidence from a number of people who were present at the said address at the time of the incident and in whose presence the wounded victim made statements in the aftermath of the stabbing. Louise O'Brien, the partner of Emmet Coffey, a brother of the deceased's wife, told the Court that the two brothers started getting abusive towards each other and were throwing digs at each other. She called for her partner, Emmet Coffey, to come out of the house and separate them. While waiting for Emmet Coffey to come out of the house she saw the applicant throw a knife from his left hand onto the floor and saw Michael Lonergan clutching his side. Michael Lonergan turned to her and said he had been stabbed. His exact words were "the bastard stabbed me". She also gave evidence that in the immediate aftermath of the incident that her partner Emmet Coffey chased the applicant down the road. At that point Michael Lonergan was lying down in the hallway of the dwelling house and holding his side. Some ten or fifteen minutes later Emmet Coffey returned to the house at which point strenuous efforts were made to staunch bleeding from the wounds sustained by Michael Lonergan. This involved putting pressure on the wound with a tea towel. Louise O'Brien gave evidence that while this was happening, Michael Lonergan said to Emmet Coffey "the bastard stabbed me, my ownbrother stabbed me". Louise O'Brien clarified that no other person was involved in the fight with the applicant other than Michael Lonergan.

3 Emmet Coffey stated in evidence that on returning to the house having chased the applicant, Michael Lonergan said to him "he is after stabbing me, Albie is after stabbing me". Emmet Coffey stated that Michael Lonergan also asked "did I catch him?.Mr. Coffey believed that the interval between his pursuit of the applicant and his return to the house was within five minutes.

4 Yvonne Lonergan, the wife of the deceased, also testified that when she went out to the hallway of the house the deceased told her it was the applicant who had stabbed him. Another witness, Jonathan Bentley, was also present in the house when the argument took place. He left the room in which he was sitting to go to the toilet and encountered Michael Lonergan in the hallway. He had his hand on his stomach and he was "all blood". He caught Michael Lonergan as he was going to fall to the ground. Asked if the deceased had said anything, Mr. Bentley stated that the deceased replied "the cunt stabbed me".

5 At the outset of the trial, an objection was raised by counsel for the applicant that only those statements immediately contemporaneous with the stabbing should be admitted in evidence and that statements made some ten or fifteen minutes later, notably that of Mr. Emmet Coffey,should not be regarded as admissible because they did not form part of the res gestae.

6 Before ruling on this objection, the learned trial judge conducted a voir dire examination of each of the aforementioned witnesses. As a result of a measure of agreement between the prosecution and the defence, the proposed evidence to be given by the various witnesses was edited and limited to that outlined above. The prosecution argued that all of the statements made by the deceased, which clearly identified the applicant as his assailant, were admissible as forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident.

7 Following lengthy submissions involving much citation of relevant case law on the topic, the learned trial judge ruled that all of the statements of the deceased were admissible. That ruling is the first matter giving rise to the present appeal.

8 A separate ground of appeal arises from the fact that on the fourth day of the trial the foreman of the jury brought to the attention of the learned trial judge that an issue had arisen over the weekend. It transpired that one of the members of the jury had been approached by an unidentified party in a public house and was told by this party to "make the correct decision".

9 On being advised of this matter, the learned trial judge conducted a discussion initially with counsel in the absence of the jury. The jury was then recalled and a request was made of the juror to identify himself which he duly did. At this stage the juror recounted the circumstances whereby he was in his local pub, was going to the bathroom and got tapped on the shoulder by a gentleman who was unknown to him and who said "I hope you make the proper decision next week". The juror protested saying that the individual had got "the wrong guy". Asked if he was intimidated by this approach, the juror responded "no". There then followed a question advanced by the trial judge as follows:

"It is very good of you to bring it to our attention. It is, dare I say it, one has heard of more serious approaches, if you like. And if I may say so you seem to be, you weren't put in fear or anything?

JUROR: No

JUDGE: I must ask you this. You have taken an oath to try this case on the evidence and not on any other basis. It is a perfectly human reaction for you, and for all of you, that this might, might perhaps subconsciously even, taint your view of the case one way or another. And it is to be presumed, of course, that you will act in accordance with your oaths. But I wonder do you feel, some people would feel that they might have been tainted by it and are prepared to say they would be. Do you feel you can continue this case purelyon the evidence and excluding from your mind any, how should we put it, sinister implications?

JUROR: Yes, your honour"

10 The defence contended that the form of the question put by the trial judge invited only a positive response and that the judge effectively led the jury and the individual juror in question into the position whereby they and he were left with no real alternative other than to affirm the position as presented by the learned trial judge.

11 In response, counsel for the...