DPP v Mackin (No. 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman.
• Judgment Date: 19 July 2010
• Neutral Citation: [2010] IECCA 81
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 297 of
• Date: 19 July 2010

[2010] IECCA 81

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Budd J.

O'Keeffe J.

297/08

DPP v Mackin (No. 1)

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

GERARD MACKIN (No. 1)

Applicant

CRIMINAL LAW (JURISDICTION) ACT 1976 S11

CRIMINAL LAW (JURISDICTION) ACT 1976 S11(3)(A)

ART 26 OF THE CONSTITUTION & CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

CRIMINAL PROCEDURE ACT 1967

AG, PEOPLE v MCGLYNN 1967 IR 232

DE ROSSA v INDEPENDENT NEWSPAPERS PLC 1999 4 IR 432 2000/5/1654

COURTS OF JUSTICE ACT 1928 S5(1)(A)

AG, PEOPLE v GRIFFIN 1974 IR 416 108 ILTR 81

CRIMINAL LAW

Evidence

Proof - Evidence on commission - Failure of proof by prosecution - Appeal - Trial within state - Evidence taken on commission in Northern Ireland - Whether conviction should be quashed - Proviso - Whether retrial should be ordered - Jurisdiction of Court of Criminal Appeal - The Criminal Law Jurisdiction Bill, 1975 [1977] IR 129 followed; People (AG) v McGlynn [1967] IR 232 and de Rossa v Independent Newspapers plc [1999] 4 IR 432 considered - Courts of Justice Act 1928 (No 15), s 5 - Criminal Law (Jurisdiction) Act 1976 (No 14), s 11(3) - (297/2008 - CCA - 19/7/2010) [2010] IECCA 81

People (DPP) v Mackin

1 JUDGMENT of the Court (ex tempore) delivered on the 19th day of July, 2010, by Mr. Justice Hardiman.

2 The accused here was convicted and sentenced on the 28 ^th November, 2008 of the offences of murder of one Edward Burns, and attempted murder of another man who survived to be the principal witness against him, Mr. O'Neill, and of the offences of possession of a firearm and intentionally or recklessly causing harm. It can only be said that the circumstances of the offences disclosed are aggravated in a very high degree in respect of any person at whose door they can be laid.

3 However a number of grounds of appeal are advanced. We have thought it best and most efficient to deal first with a single, quite discrete, one which is this. When the case came on before the Special Criminal Court the prosecution made an application pursuant to s.11 of the Criminal Law Jurisdiction Act of 1976 and that was an application whereby the Court was asked to hold that it was in the interest of justice to issue a letter of request to the Lord Chief Justice of Northern Ireland for the taking, in the presence of the members of the Court making the order, the evidence of various witnesses in Northern Ireland before a judge of the High Court of Justice in Northern Ireland. The relevant witnesses were specified in the order of the Court. Mr. O'Neill was one of those witnesses so specified.

4 There are in the statute mentioned certain provisions the effect of which is that the accused may or alternatively may not, entirely at his own option, attend the taking of evidence in Northern Ireland and may, whether he attends or not, be represented there. And there was s.11(3A) which provides:

"That a statement of evidence of a witness taken in compliance with the letter of request and certified by the judge of the High Court in Northern Ireland who took it to be a true and accurate statement of the evidence so taken shall if all the members of the court were present throughout the taking of the evidence be admissible at the trial or appeal concerned as evidence of any fact stated therein of which evidence would be admissible at the trial of any offence."

5 It also provided:

"That a document purporting to be a certificate of a judge of the High Court of Northern Ireland and to be signed by him is to be deemed for the purpose of this Section to be such certificate and to be so signed."

6 In other words the Certificate proves itself at least on a prima facie basis.

7 As to those early stages of the event, I will only mention that at the hearing before the Special Criminal Court which was the Court of trial, when the order seeking the letter of request was made on the 28 ^th October, 2008, just after the applicant Mr. Mackin had stated he did not wish to attend in Belfast, the presiding judge, Mr. Justice Butler, made a statement to Mr. McQuaid, who is a barrister acting for Mr. Mackin. Hesaid, referring to the position that would obtain in Northern Ireland at the taking of the evidence:

"As far we're concerned we are observing a commission there and taking no part. You are in a different position obviously."

8 And there may or may not be some significance attaching to these remarks.

9 In any event within a few days the evidence was taken before The Hon. Mr. Justice Wetherup as Commissioner.

10 In any event the evidence was then taken on commission and the Court has read the transcript of the evidence. The trial subsequently resumed in the Special Criminal Court and, it appears, resumed without any mention being made of the evidence on commission and without, it is conceded, any attempt to prove the transcript of the Commission or even to produce the certificate which was self proving subject to an ability to bring evidence to the contrary effect and which certificate was, we are told, in the possession of the Registrar of the Court. The result of that was that the evidence at the trial, which we have had the opportunity to read in transcript form, mostly related to ancillary or peripheral matters, that is not to say that they were unimportant, they went into themovements of the principal dramatis personae at various stages relevant to the murder and the other crimes. But they did not include the substantive evidence against the applicant, Mr. Mackin. That evidence was that of a man who was said to have accompanied him, was said to have been there at the time the other man Mr. Burns was shot and then to have incurred the wrath of Mr. Mackin so that he shot him too in the arm and in some portion of the neck without however producing a fatal effect. It has to be said that evidence of Mr. O'Neill was extraordinary in some respects. The possibility that he was an accomplice clearly arose, though the trial Court was not satisfied of it. There were features of his evidence which seemed quite remarkable: when the unfortunate deceased man was taken prisoner as he was when his taxi was hijacked or the taxi he was driving was hijacked, he was put into the back of the taxi with a third man on one side of him and this man O'Neill on the other side. Mr. O'Neill was also proved, by evidence produced from an analysis of the SIM card of his mobile telephone, to have made a number of calls, including several to a particular man called Gerard (I can't immediately recall his surname and it is not relevant). He claimed to be unable to remember whether he had rung the man and why he had rung him and as to the credibility of that evidence, clearly a question might arise.

11 However for our purposes the main feature of the case is that the prosecution case ended on the 9 ^th day of the trial, I think I am correct in saying, without any attempt to prove the evidence of Mr. O'Neill, and when that transpired Mr. McDermott S.C. who appeared for Mr. Mackin at all material times made an application for a non-suit or direction. This was the 10 ^th day of the trial; Mr. O'Connell who was prosecuting said "that is the prosecution case". The judge said "thank you very much" and Mr. McDermott said "I have an application for a direction. There is no evidence before the Court in relation to any involvement in the commission of any offence by which the Court can rely to convict Mr. Mackin. The Court travelled by way of commission to Belfast on the basis that such evidence would be adduced before this Court. It has not been done. It has not been put in evidence before the Court. If a commission is conducted outside the jurisdiction the methodology of the producing of that evidence must be that it is produced to the Court and it is envisaged under the Act that the evidence so taken is certified by the Commissioner". The judge said "It was, we have it". Mr. McDermott said "Indeed, you may have it but is has not been tendered in evidence as part of the prosecution case. The Court may have it but it has not been put in evidence and that is fatal to the prosecution because..." and he referred to s. 11 of the Act. His submission was that the evidence having beenreceived by the Registrar of the Court and perused by the judges did not without more make it evidence in the case.

12 What happens after this was the argument continued and after the lunch time adjournment the Court said in way of ruling it would appear on Mr. McDermott's application....I'm sorry, prior to that, Mr. O'Connell had applied as he put it "In case it is necessary to admit the transcript of the evidence taken on...