DPP v Massoud

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 24 July 2009
• Neutral Citation: [2009] IECCA 94
• Judgment citation (vLex): [2009] 7 JIC 2402
• Court: Court of Criminal Appeal
• Date: 24 July 2009

[2009] IECCA 94

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Hanna J.

[CCA No. 105 & 103/2008]

DPP v Massoud

[2009] IECCA 94

BETWEEN

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

RESPONDENT

AND

EMAD MASSOUD & GEHAN MASSOUD

APPLICANTS

LARCENY ACT 1916 S32(1)

LARCENY ACT 1990 S9

DPP v BRADY UNREP CCA 5.5.2005 2007/6/1135

R v LUCAS 1981 QB 720

CRIMINAL JUSTICE ACT 1994 S63

DISCLOSURE OF CERTAIN INFORMATION FOR TAXATION & OTHER PURPOSES ACT 1996

DPP v MCGOLDRICK 2005 3 IR 123

DPP v LAWLESS 1985 3 FREWEN 30

DPP v CRONIN (NO2) 2006 4 IR 329

Abstract:

Criminal law - Appeal - Leave to appeal against conviction - Larceny - Insurance fraud - Trial judge's charge to jury - Whether appropriate - Whether jury misled by directions of trial judge - Search warrant - Whether invalid - Whether leave to appeal should be granted.

Facts the accused were a married couple who were convicted of fraud offences. They sought leave to appeal against conviction on the grounds:

1. that the trial judge failed to provide the jury with a proper direction as to lies admitted to have been told;

2. that, in charging the jury, the trial judge gave an unbalanced charge in respect of the evidence in that he told the jury that the accused's notes did not appear genuine by reason that they did not appear to be written contemporaneously in circumstances where none of the assertions made by the trial judge had been put to the accused in cross-examination or to other expert witnesses;

3. that a search warrant relied upon by the prosecution was invalid.

The accused submitted that four conditions had to be satisfied before a defendant's lie could be seen as supporting that prosecution case: that the lie was deliberate; that it related to a material issue; that the motive for the lie was a realisation of guilt and fear of the truth and; that the statement had to be clearly shown to be a lie by evidence from an individual witness or admitted to be false. They argued that failure to give such a warning rendered their conviction unsafe. In relation to the search warrant, the accused argued that there had been a deliberate invasion of their constitutional privacy in the circumstances where the date on its face was a date after it had actually been granted. The trial judge had heard a voir dire in relation to this issue and heard uncontradicted evidence that the order had in fact been granted on the same day that it had been granted but that through a clerical error the date had been incorrectly typed on the order as being a day later. The second complaint in relation to the search warrant was that it authorised production of mammogram results only and not the mammogram itself. The accused also contended that their counsel was so upset by the unfairness of the trial judge's charge to the jury that he was unable to make a requisition.

Held by the Court of Criminal Appeal in refusing leave to appeal that the jury had not been misled by the various directions given to it by the trial judge. The first accused had admitted that he had lied and gave his own reasons for having done so. The trial judge had an obligation to give the jury assistance in relation to the issue of lies but the essential elements of a proper warning had been given. Whilst a complaint had been made that the warning had not been adequately contextualised in relation to the evidence, the lie in question was so stark as to obviate any such requirement.

There was nothing misleading, unclear or ambiguous on the face of the order for the search warrant and the clerical error in the date was one of no material substance. Moreover, what was being sought on foot of it were medical records pertaining to the second accused only and, in such circumstances, the constitutional rights of the first applicant were not imperiled.

That a mammogram was a process where the breast was scanned and the document or picture produced as a result was termed a mammogram scan or result. It would be impossible for a recipient of the order to produce a mammogram, only the result thereof could be produced and those results were expressly covered by the order.

That there was an onus on the accused to raise any objections with the trial judge at first instance before relying upon same in an appeal and the circumstances were not such as to waive this requirement.

Reporter: P.C.

1 JUDGMENT of the Court delivered by Mr. Justice Kearns on the 24th day of July, 2009

2 The applicants are a married couple from Alexandria in Egypt who were convicted of certain fraud offences in Dublin Circuit Court on the 4 ^th February, 2008 after a lengthy trial before a jury. They were convicted of two offences under s. 32(1) of the Larceny Act 1916, as amended by s. 9 of the Larceny Act 1990:- first, that on or about the 25 ^th day of March, 2002 at 53 Fitzwilliam Square in the City of Dublin they caused Scottish Provident Limited to deliver to Permanent TSB on their account a cheque in the sum of €685,658.56 by falsely pretending that Gehan Massoud had suffered cancer of her left breast and that, arising from such, there was an obligation on the part of Scottish Provident to settle a serious illness claim under a policy effected for that purpose. They were further convicted of causing Lifetime Assurance Company Limited to pay by way of electronic credit transfer to their account in Bank of Ireland the sum of €45,338.25 by falsely pretending that Gehan Massoud had suffered cancer of the left breast and that, arising from such, there was an obligation on the part of that insurance company to settle a serious illness claim under a policy arranged to provide such cover. Following conviction, the first named applicant was sentenced to four years imprisonment. The second named applicant was sentenced to three years imprisonment but this term was suspended. Both applicants have sought leave to appeal against conviction only.

3 The grounds of appeal may be summarised as follows:-

4 (1) The learned trial judge failed to provide the jury with a proper direction as to lies admitted to have been told by the first named applicant.

5 (2) In charging the jury, the trial judge gave an unbalanced charge in respect of the evidence in that he told the jury that Mr. Massoud's handwritten operation notes did not appear genuine by reason that they did not appear to be written contemporaneously and that their good physical condition was inconsistent with the expected physical appearance of such documents in circumstances where none of the assertions made by the trial judge had been put to Mr. Massoud in cross-examination or to other expert witnesses.

6 (3) A search warrant relied upon by the State in order to obtain certain medical records relating to the second named applicant from the Mater Private Hospital was invalid in that the Gardai purported to execute same on the 24 ^th October, 2003, the date of the making of the order by the District Court, in circumstances where the date appearing on the face of the order was the 25 ^th October, 2003.

7 (4) The trial judge erroneously held that the order directing the production of radiology reports and medical scans in respect of Mrs. Gehan Massoud also included the mammograms themselves.

8 While it was not the subject matter of any requisition at the conclusion of the trial judge's charge, counsel for the first named applicant has in addition sought to raise as a further ground of appeal the unfair conduct and behaviour of the trial judge when addressing the jury at the end of the case. At the opening of the appeal before this Court, Mr. John Peart, senior counsel on behalf of the first named applicant, ramped up this allegation to a serious degree, alleging that the trial judge's charge was so unfair and oppressive that it inhibited him from making a requisition to recharge or discharge the jury which he felt at the time was appropriate. Counsel stated to this Court that he was fearful that had he done so, the trial judge "would have come down even harder" on his client. This aspect of the case will be dealt with separately in this judgment.

BACKGROUND AND EVIDENCE

9 It was not in dispute that the second named applicant, Gehan Massoud, underwent an operation to her left breast under local anaesthetic at the hands of her husband at his clinic (the Wellman Centre) in Eccles Street in Dublin on the 5 ^th October, 2001. In the aftermath of this procedure the applicants made claims to two different insurance companies on the basis that Mrs. Massoud had required the operation in question to address an invasive lobular cancer of the left breast, a contingency covered by the policies in question. In the documentation submitted to the insurance companies the first named applicant stated that the surgeon who carried out the operation was a certain Mr. Mohamed Hilal, but admitted in evidence at trial that this was not true and that he had carried out the surgery on his wife himself. He stated in evidence that he pretended that Mr. Hilal was the surgeon because he was aware that professional standards applicable in Ireland precluded him from carrying out the operation himself. He asserted that it was not contrary to medical or professional standards in Egypt where he had undergone his training. It was common case that no oncology treatment had been recommended to or undertaken by Mrs. Massoud post-operation. One month after her operation, Mrs. Massoud underwent a mammogram in the Mater Hospital. A radiographer gave evidence that it was unusual to have a mammogram carried out after the operation, that it normally preceded the operation and was a test intended to establish the nature of any cancerous growth and its extent. A medical witness gave evidence of her findings in relation to the scans and...