DPP v McCarthy

 
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[2015] IECA 44

THE COURT OF APPEAL

Birmingham J.

Sheehan J

Mahon J.

Appeal No. 175/2014
DPP v McCarthy
The People at the Suit of the Director of Public Prosecutions
Respondent

- and -

Aaron McCarthy
Appellant

175/2014 - Birmingham Sheehan Mahon - Court of Appeal - 2/3/2015 - 2015 IECA 44

Conviction – Robbery – Charge to jury – Appellant seeking to appeal against conviction – Whether the trial judge”s remarks to the jury were prejudicial to the appellant

Facts: The appellant, Mr McCarthy, was found guilty of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and of taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961 following a trial at Dublin Circuit Court in July 2014. The appellant also pleaded guilty to an offence of stealing a bicycle. He was sentenced to five years, two years and two years respectively, all sentences to run concurrently. The appellant appealed to the Court of Appeal against conviction, based on two separate criticisms of the trial judge”s charge to the jury. The first ground of appeal concerned the challenge to a garda witness” evidence that he had found a stolen bank card and money on the applicant”s person at the time of his arrest. The basis of the criticism by the appellant of comments made by the trial judge referring to the evidence of the garda witness in the course of his charge to the jury, was that the jury might have been prompted or influenced by them to return a guilty verdict, and in so doing indicated their acceptance of the truthfulness of the garda witness, not because they believed him, but rather out of a concern that any other result would be, effectively, a finding that the garda witness had lied in the course of his evidence, and that consequently his career as a garda would be in jeopardy. The appellant contended that this redirection by the trial judge only served to further emphasise, in the eyes of the jury, the risk to the garda witness” career in the event that the jury was to return a verdict of not guilty. The second ground of appeal advanced by the appellant related to another matter referred to by the trial judge in his charge to the jury. The appellant contended that those remarks were prejudicial to him in that it was suggested that he may have lied about his reasons for being out at 2.30 am. It was pointed out that there had not been any allegation made in the course of the evidence that the appellant had lied in relation to that issue.

Held by Mahon J that he was satisfied that it would have been preferable if the trial judge had not in the course of his initial charge to the jury, made reference to the potential risk to the garda witness” career if the verdict of the jury indicated its disbelief of his evidence, because of the possibility that the verdict of the jury would be influenced by a concern that an acquittal of the appellant would, or might, result in the garda officer”s career coming to an end. However, Mahon J was also satisfied that the trial judge properly and adequately dealt with the requisition arising from those comments and that his redirection to the jury on the issue was appropriate, reasonable and proportionate; in that redirection, it was necessary for the trial judge to refer to his earlier reference to the potential risk to the garda officers” career if his evidence was disbelieved in order to place it in its proper context, and to ensure that the jury was aware that the redirection related to his earlier remarks, and the concern expressed in relation to them by the appellant. The Court was satisfied that the trial judge”s comments were not inappropriate, and in any event were probably in aid of the appellant rather than detrimental to him, having regard to the fact that almost certainly the appellant”s evidence that he was out at 2.30 am in a location far from his home was a matter which had the potential to impact negatively on the appellant in the minds of the jurors. Mahon J held that this was not a Lucas type warning such as was discussed in DPP v Curran [2011] IECCA 95.

Mahon J held that the appellant”s appeal against his conviction be dismissed.

Appeal dismissed.

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1. This is an appeal against conviction. The Applicant, Mr. McCarthy, was found guilty of two offences following a four day trial at Dublin Circuit Court on 21 st July 2014. One offence was that of Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and the other offence was of taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961. The Applicant also pleaded guilty to an offence of stealing a bicycle. He was sentenced to five years, two years and two years respectively, all sentences to run concurrently; a total period of five years in prison.

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