DPP v M.W.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 01 June 2017
• Neutral Citation: [2017] IECA 175
• Docket Number: Record No: CA 2013/225
• Court: Court of Appeal (Ireland)
• Date: 01 June 2017

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

MW

Appellant

[2017] IECA 175

Edwards J.

Ryan P.

Edwards J.

Hedigan J.

Record No: CA 2013/225

THE COURT OF APPEAL

Conviction – Assault causing harm – Embellishment of evidence – Appellant seeking to appeal against conviction – Whether prosecution embellished evidence of injury

Facts: The appellant, on the 2nd of July 2013, following a three day trial, was convicted by the 10:2 majority verdict of a jury at the Dublin Circuit Criminal Court of a single count of assault causing harm, contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. The appellant subsequently received a sentence of three years imprisonment, suspended on conditions for a period of three years, in respect of the said offence. The appellant appealed to the Court of Appeal against his conviction on the following grounds: 1) the failure to disclose the Garda statement made by the complainant on 5th August 2012, the taking of which was directed by the respondent, the DPP, and a handwritten statement of Ms Wallace dated 26th of March 2012; 2) the undisclosed statements of Ms Wallace, Ms Kiss, Ms Simpson and Ms Lyons dated 4th January 2012; 3) the various failures in the Garda investigation; 4) the embellishment of evidence by the prosecution resulting in unfairness; 5) the confusion between s. 2 and s. 3 assault in the judge’s charge; 6) recklessness and attending the crèche; 7) the failure to provide the criminal records of prosecution witnesses; 8) the failure to call two prosecution witnesses in the Book of Evidence; and 9) the failure by Gardaí to investigate the accused’s complaint against Ms Wallace.

Held by the Court that ground 1 failed in so far as the statements of the 5th of August 2012 and the 26th of March 2012 were concerned. The Court was not disposed to uphold the general complaint in ground 2 that non-disclosure of the statements of the 4th of January 2012 resulted in unfairness to the appellant and consequently rendered the trial unsafe and unsatisfactory. The Court was not disposed to uphold any of the complaints on which ground 3 was based. The Court held that there was no substance whatever in the suggestion of prosecution embellishment of the evidence of injury. The Court held that the judge’s charge was more than adequate and could not have given rise to the suggested confusion. Having regard to the decision in The People (DPP) v Cronin (No 2) [2006] 4 IR 329, the Court could not justifiably entertain the complaints under ground 6 which the appellant sought to raise for the first time on appeal, in circumstances where no objections were raised at the trial seeking to impugn remarks allegedly made by prosecuting counsel to the jury tending to ascribe recklessness to the appellant, either expressly or by implication, and no requisitions were raised in respect of the judge’s charge at the trial. The Court held that the failure to provide the criminal records of prosecution witnesses in advance of the trial neither gave rise to any actual unfairness in the appellant’s trial, nor did it have any implications for the soundness of the appellant’s conviction. While the Court was not disposed to allow the appellant to ventilate his complaint that prosecution witness Ms Le Chevallier was not called as a witness in circumstances where he did not seek and obtain the leave of the Court to expand his original grounds of appeal to include a complaint that Ms Le Chevallier was neither called nor tendered, it seemed to the Court that in any case the prosecution would not have been under any obligation to call or tender her in the circumstances presented. The Court held that the suggested favouritism afforded to Ms Wallace on account of her brother being a Superintendent amounted to no more than scandalous speculation by the appellant which he had utterly failed to support with any actual evidence.

The Court held that the appellant’s appeal against his conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered 1st of June 2017 by Mr. Justice Edwards .

Introduction

1 On the 2nd of July 2013, following a three day trial, the appellant was convicted by the 10:2 majority verdict of a jury at the Dublin Circuit Criminal Court of a single count of assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act 1997.

2 The appellant subsequently received a sentence of three years imprisonment, suspended on conditions for a period of three years, in respect of the said offence.

3 The appellant has appealed against both his conviction and sentence. However, this judgment deals solely with his appeal against conviction, and with a related motion seeking leave to adduce new evidence on the hearing of the appeal.

Summary of the evidence before the jury

4 Before setting forth the appellant's grounds of appeal, it may be helpful to first of all review the evidence that was adduced before the jury at the appellant's trial in reasonable detail for the purpose of contextualising those complaints and facilitating engagement with them.

5 The first witness was Ms Marian Wallace. The jury heard that in January 2012, and for twenty three years prior to that, Ms Wallace was the manager of the ‘Busy Bees’ crèche on Kilmacud Road Lower. One of the children then attending the crèche was a little boy called R who was the child of the appellant and his former partner, Ms O.

6 R had begun attending the crèche in February 2010 and Ms Wallace was told by Ms O that the appellant was allowed to collect R from the crèche. However, in July 2010 that permission was withdrawn due to unhappy differences that had arisen between the couple.

7 By August 2010 the couple had come to an arrangement that the appellant would collect the child on certain days. Ms O would ring Ms Wallace to advise her when the appellant would be collecting R. However, in November 2010 Ms Wallace learned of on-going difficulties in the couple's relationship when, on a day when R was not due to be in the crèche, Ms O telephoned Ms Wallace to ask if R could be brought to the crèche by the appellant so that Ms O could collect him there, as there had been problems when the appellant was dropping off the child to Ms O's home. Despite this the arrangement whereby the appellant would collect R on certain days with Ms O's permission continued.

8 Then on the 3rd of January 2012, the day before the crèche was due to re-open after the Christmas break, Ms Wallace received an email from Ms O revoking permission for the father to take the child from the crèche, and Ms Wallace duly made her staff aware of this.

9 On the 4th of January 2012, at about noon, Ms Wallace was working in her home office next door to the crèche when she received a phone call from the crèche's assistant manager, Karen Simpson, alerting her to the appellant's arrival at the premises. She instructed Ms Simpson to keep him there and that R was not to go with him until she came down. Ms Simpson was also instructed to ring Ms O, which the jury later heard she duly did.

10 Ms Wallace proceeded immediately to the crèche. On arrival she went straight upstairs to the children's room (established later in other evidence as being the junior Montessori room) where she found the appellant seated on a foam chair inside the door. The children were having their dinner. Ms Wallace greeted the appellant and requested a word with him in the office and he replied ‘fine’. The appellant got up off the chair with a little difficulty, as he has a physical disability, following which Ms Wallace again indicated she wished to speak with him in the office. This elicited the response ‘I'm not leaving without R’.

11 Ms Wallace told the jury that at this point she moved position and stood between the appellant and R, who was seated at a nearby table having his dinner. She then said to the appellant ‘I don't think we'll be taking R down I think we'll just have a chat ourselves downstairs.’ At that stage the appellant was in front of Ms Wallace and she told the jury that he pushed her by putting his two hands on her shoulders. Ms Wallace then said to the appellant, ‘Mr W, please don't do that.’ She stated that the appellant just looked at her, and then he pushed her quite hard by putting his two hands on her chest.

12 The children were still present and some of them began to cry. Ms Wallace's evidence was that she then said ‘[y]ou're upsetting the children, please don't do this.’ R then started to cry and one of the other staff members picked him up, and she cuddled him. At this point the appellant asserted ‘I'm not going without him’. The staff member cuddling R then moved towards the door and opened it as if she going to take the child out of the room. However, Ms Wallace followed straight behind her, as did the appellant, and as they were all about to go through the door Ms Wallace deftly moved the staff member holding R aside at the last minute. She and appellant continued through the door into the corridor outside, the appellant apparently not realising what Ms Wallace had just done, and Ms Wallace then closed the door of the children's room so that she was then alone with the appellant in the corridor.

13 At this point the appellant realised that R was still with the staff member in the children's room and went to go back in through the door. Ms Wallace held the door handle and said ‘[n]o, you're not going back in. We'll go downstairs.’ The appellant replied ‘[y]ou're obstructing me, you're kidnapping my child’, to which Ms Wallace in turn responded ‘I'm not kidnapping anybody. We have to talk about this downstairs.’ According to Ms Wallace the appellant then said ‘[o]h, you're doing what that crazy woman told you to do, that crazy mother of his.’ Ms Wallace replied ‘[w]ell, you know, I'm doing what I have to do....