DPP v Mahon

 
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COURT OF CRIMINAL APPEAL

McCarthy J.

Egan J.

Blayney J.

No. 106/87

The People (At the Suit of the Director of Public Prosecutions)
and
Sean Mahon
Applicant
1

Judgment of the Court ex-tempore delivered on the 29th day of January 1990 by McCarthy J.

2

This is an application for leave to appeal against conviction and sentence on two sets of charges arising out of two separate incidents, a theft at a garage premises in the outer part of Dublin City and an assault on a Garda at James' Street in Dublin. The case turned upon the identification of the accused as being the man involved in the assault incident and one of the men involved in the theft incident. The learned Trial Judge in dealing with the question of visual identification in his charge said at page 12 of the second day:-

“There are two matters of law that I want to address you on, one is the question of visual identification; that means the evidence that identifies the accused man by somebody seeing him and it has been held by the Supreme Court that Judges trying cases of this nature should warn both themselves and juries that if your verdict as to the guilt of the accused is to depend wholly or substantially on the correctness of visual identification you should bear in mind that there have been a number of instances where responsible witnesses whose honesty was not in question and whose opportunity for observation was adequate, have made positive identification of an accused person, which identification was subsequently proved to be wrong and accordingly, you should be especially cautious before accepting such identification as correct; but if after careful examination of the evidence in the light of all the circumstances of the case, and with due regard to all the other evidence you feel satisfied beyond reasonable doubt of the correctness of such identification you are at liberty to act upon it.”

3

This is in part a quotation from the Judgment of Kingsmill Moore J., giving the Judgment of the Supreme Court in the case of Dominic Casey. (1) The learned Trial Judge continued

“When you are considering the evidence of Garda (now Sergeant) Crown and Garda Keogh you should bear that warning in mind. It is essential. It is absolutely fundamental to the whole of the prosecution case which depends on visual...

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