DPP v McArdle

• Jurisdiction: Ireland
• Judge: Keane C J.
• Judgment Date: 13 October 2003
• Neutral Citation: 2003 WJSC-CCA 3998
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 27 of 2002]
• Date: 13 October 2003

DPP v. McARDLE

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PETER M c CARDLE

APPLICANT

2003 WJSC-CCA 3998

27/02

THE COURT OF CRIMINAL APPEAL

Synopsis:

EVIDENCE

Burden of proof

Manslaughter - Prior inconsistent statement - Credibility of witnesses - Self-defence - Burden of proof - Whether statements improperly admitted - Whether conviction sound (27/2002 - Court of Criminal Appeal - 13/10/2003)

People (DPP) v McArdle - [2003] 4 IR 186

The applicant was convicted of manslaughter and sought leave to appeal against his conviction. It was contended that the trial judge had incorrectly charged the jury with regard to witness' statements. In addition it was submitted that the trial judge had not fully explained the burden of proof to the jury and furthermore the case should have been withdrawn from the jury due to the failure by the prosecution to call certain witnesses. As a result the prosecution could cross-examine certain witnesses, an advantage, it was claimed, they should not have had.

Held by the Court of Criminal Appeal in refusing the application. The jury were entitled to assess the credibility or lack thereof of a witness' evidence in the light of inconsistent statements made. The inconsistencies that existed between statements made by witnesses and their subsequent evidence in court only went to the issue of whether the deceased had been carrying a weapon. On the basis of the rest of the evidence adduced the jury would still have been entitled to conclude that the applicant had delivered a number of blows to the deceased. A full and careful charge as to the burden of proof had been given by the trial judge to the jury. The application was refused.

Citations:

PHIPSON ON EVIDENCE 15ED PAR 11–31

DRISCOLL V THE QUEEN 1977 137 CLR 517

R V B 1993 1 SCR 740

DI CARLO V UNITED STATES 1925 6F 2D 364

1 13th day of October, 2003 by Keane C J.

Keane C J.

2 The applicant was tried in the Circuit Court sitting at Dundalk, Judge Raymond Groarke presiding, on the following counts:

3 (a) Manslaughter of one Edward (Ned) Reay at Moneymore, Drogheda on the 23rd January, 2000;

4 (b) Assaulting Edward (Ned) Reay thereby causing him harm at Moneymore, Drogheda on the 23rd January, 2000.

5 He had previously pleaded guilty to a charge of criminal damage to the door of the house where the deceased lived at 58 Moneymore, Drogheda. He was convicted by the jury on the count of manslaughter and sentenced to eight years' imprisonment in respect of that count and 1 year's imprisonment in respect of the criminal damage, the sentences to run concurrently. The jury disagreed on the assault charge. An application for leave to appeal having been refused, he has now appealed to this court.

6 The charges of manslaughter and assault arose out of a melee which took place in the early hours of the morning of January 23rd, 2000. While there was a considerable area of disagreement as to the details, the sequence of events was broadly as follows.

7 Sometime after midnight, Paul Reay, a son of the deceased, was with his girlfriend, Niamh Eustace, in the family home at 58 Moneymore, Drogheda. When she decided to go home, they began walking in the direction of Our Lady of Lourdes Hospital with a view to calling a taxi. On the way, they encountered the applicant and another person, Matthew Dyas, and a verbal altercation followed. Both Paul Reay and Niamh Eustace ran back in the direction of his house. The applicant followed him to the house and kicked in the glass panel of the porch door. Paul Reay then got a garden fork from the garden shed in his house and went in pursuit of the applicant and Matthew Dyas. At the green on the Moneymore estate, Paul Reay attempted to assault the applicant, at which stage the garden fork was taken from him and he returned to his own house. His brother, David Reay, who had been in bed at the time of the kicking in of the door, got dressed and arrived at the green. Another incident then took place involving the applicant and David Reay in the alleyway between number 24 and 25 Moneymore. The garden fork was left in that alleyway and David Reay returned to his own house. The applicant returned to the green area and, at approximately this time, the deceased, who had also been in bed but had got dressed, arrived at the green, whereupon a fight ensued between the applicant and the deceased, in the course of which the applicant hit the deceased on the head and in or about the body approximately five times: he died as a result of those injuries a short time later. A number of people from the locality came from their houses during the course of the altercation between the applicant and the deceased and assisted in sending for an ambulance and the gardaí. Sometime after the deceased was taken away in the ambulance, the applicant went to the Garda Station and complained about what had occurred.

8 At the trial, a number of witnesses, including Paul Reay and David Reay, gave evidence as to these events. There were no statements, however, by Paul or David Reay included in the book of documents served on the applicant and neither of them was called as a witness by the prosecution, although statements which they had made to the gardaí were furnished to the defence. Counsel for the applicant having objected to the refusal of the prosecution to call them as witnesses, the trial judge decided to call them himself and they were then cross-examined by counsel for the prosecution and the defence.

9 The evidence of the witnesses to these events, including Paul and David Reay, can be briefly summarised.

10 Niamh Eustace described the initial altercation between Paul Reay and two other persons and the breaking of the glass in the door. She said that, following that incident, Paul Reay ran out of the house and his brother, David, also went out of the house. She said that their father went upstairs to get dressed and that she went outside and could see a scuffle going on. One of the persons involved in the scuffle was a man in a wine shirt. (It is clear from the evidence of the other witnesses that this was the applicant.) She then went back into the house, at which stage the deceased finished dressing and left the house. She also saw David Reay running towards the house and saw Paul Reay with something like a spade in his hand. She then went down to the bottom of the alley beside number 53 and Paul Reay came running over to her, while she was standing there and was sick. She could see the deceased and the man in the wine shirt who, she said, was carrying a big plank of wood at that stage. She could also see the deceased kneeling down at that stage but was more concerned about Paul Reay at the time. She said the deceased was putting on a fleece jacket as he ran down the alleyway from the house.

11 Gordon Hatch gave evidence that he was babysitting in his sister's house at 25 Moneymore in the early hours of the 23rd January when he heard the sound of voices and a scuffle and saw two people rolling on the ground, one of whom he thought was one of the Reays. That person ran over to the green area, but he did not know where the other person went. Shortly afterwards he opened the door and saw people running down past his house towards the green area: he thought they were the two Reays and their father. He also saw a person whose first name he knew as Matthew running across the road as well. He said that the deceased was holding something in his hand while he was running down with his two sons towards the green area. He also saw one of the sons running back up towards the alley. He did not have anything with him. In cross-examination, he agreed that he heard the deceased shouting "I will kill you, you bastards" and that he had what appeared to be a piece of timber in his hand. He was holding the piece of timber at an angle of 45 degrees approximately. He said that Paul was also carrying something which looked like a shovel. He did not see any struggle taking place between the deceased and the applicant.

12 Gerard Hill said that he was asleep in his house at number 34 Moneymore, when he was awakened at about 1:30 a.m. on the morning of the 23rd January by roaring and shouting. He looked out the window and saw Matthew Dyas, the applicant and Paul Reay throwing stones at each other. He then saw the deceased coming from the alleyway beside his house. He had not got anything in his hand. He saw the deceased run towards the applicant who was standing with Matthew Dyas at the green area. There was an impact between the deceased and the applicant like a rugby tackle and he then saw both of them on the ground. He (the witness) then got dressed and went outside. He saw the deceased lying on the ground and the applicant standing beside him roaring and shouting. There were a lot of people in the vicinity at this stage. He said that the applicant had a plank of timber.

13 In cross-examination, it was put to the witness that in a statement he made to the gardaí he had said that the deceased had a big stick in his hand, approximately four feet long, when he came out of the alleyway. He said that the reference by him to the deceased in his first statement was in fact a reference to Paul Reay. He agreed that he had said in the statement that the person he named as Ned Reay ran past "Matthew and Paul who were in the corner fighting". It was also put to him that in a second statement made to the gardaí he had also referred to the deceased as "carrying a piece of timber which was raised in the air". He agreed that that was what he had told the gardaí, but said that he had definitely not seen the deceased carrying a stick.

14 Timothy O'Rourke said that he was in Stephen Byrne's house in Moneymore on the evening in question. In the early hours of the morning, Mr. Byrne heard some noise outside. The witness went out and saw Paul...