DPP v McCarthy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 25 April 2017
• Neutral Citation: [2017] IECA 126
• Docket Number: Record No: 2016/118
• Court: Court of Appeal (Ireland)
• Date: 25 April 2017

[2017] IECA 126

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 2016/118

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

PAUL MCCARTHY

Appellant

Conviction – Threat to kill – Evidence – Appellant seeking to appeal against conviction and sentences – Whether trial judge erred in ruling that Garda was entitled to give evidence identifying the appellant from CCTV footage

Facts: The appellant, Mr McCarthy, was charged on three counts relating to an incident which occurred at N Square Restaurant, Camden Quay, Cork on the 6th December 2014. The appellant was charged on count 1 with unlawfully producing a broken bottle to intimidate another person contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. Count 2 related a threat to kill contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997. Count 3 charged the appellant with criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991 in that the appellant damaged certain property being restaurant utensils, glasses, a computer, cutlery and restaurant furniture without lawful excuse. The appellant was convicted by unanimous verdict on all three counts on the 28th April 2016. On the 5th May 2016 the appellant was sentenced to six years imprisonment on count 2 with the final eighteen months suspended, three years imprisonment on count 1, and count 3 was taken into consideration. All sentences were to run concurrently and were backdated the 16th February 2016, when the appellant went into custody. The appellant appealed to the Court of Appeal against both his conviction and sentences. In respect of his conviction, Mr McCarthy relied on three grounds, namely that the trial judge erred: a) in ruling that Garda Maher was entitled to give evidence identifying the appellant from CCTV footage; b) in stating to the jury that Garda Maher had identified the appellant from CCTV footage; c) in the course of his charge by implying that the person giving his name as Paul McCarthy on MacCurtain Street was the appellant. The appellant complained that the sentences imposed upon him were too severe. In substance his complaint in that regard related only to the sentence imposed on count 2. He suggested that in sentencing him on that count the sentencing judge erred by locating the offence towards the lower end of the upper scale. It was suggested that in doing so the sentencing judge gave too much weight to the aggravating factors.

Held by the Court that, regarding the first ground of appeal against conviction, the trial judge was correct not to rule the evidence of Garda Maher to have been inadmissible, and considered that he would not have been justified in exercising his discretion to exclude it. Regarding the second ground of appeal against conviction, the Court found no error in the way in which the trial judge left the matter to the jury; it did not in any way preclude them from considering the defence case which was that Garda Maher was simply wrong in his belief that the man before the court was the same man as he had arrested on the 6th December 2014, or from considering the possibility that a false name had been given. The Court held that the judge went no further than stating that Garda Maher held the belief that he did; he did not in any way usurp the jury’s entitlement to evaluate the correctness or otherwise of that belief. Regarding the third ground of appeal against conviction, the Court had no hesitation in dismissing this ground in limine; it was manifest from the transcript that the charge was balanced and fair and there was no attempt to, nor was there in fact, any inappropriate influencing of the jury by ostensible endorsement of a witness’s testimony. The Court held that the headline sentence of seven years discounted to six years for the reason identified by the trial judge was appropriate to reflect the gravity of the offence, having regard to the offender’s moral culpability and the harm done. The Court therefore found no error of principle.

The Court held that it would dismiss the appeals against conviction and the severity of the sentences imposed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered by Mr. Justice Edwards on the 25th April 2017

Introduction

1 The appellant was charged on three counts relating to an incident which occurred at N Square Restaurant, Camden Quay, Cork on the 6th of December 2014. The appellant was charged on count no 1 with unlawfully producing a broken bottle to intimidate another person contrary to section 11 of the Firearms and Offensive Weapons Act 1990. Count no 2 related a threat to kill contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997. Count no 3 charged the appellant with criminal damage contrary to section 2(1) of the Criminal Damage Act 1991 in that the appellant damaged certain property being restaurant utensils, glasses, a computer, cutlery and restaurant furniture without lawful excuse. The appellant was convicted by unanimous verdict on all three counts on the 28th of April 2016.

2 On the 5th of May 2016 the appellant was sentenced to six years imprisonment on count no 2, involving the threat to kill offence, with the final eighteen months suspended; three years imprisonment on count no 1, namely the production of a broken bottle; and count no 3, involving criminal damage was taken into consideration. All sentences were to run concurrently and were backdated the 16th of February 2016, when the appellant went into custody.

3 The appellant now appeals against both his conviction and sentences.

The Relevant Facts

4 On the evening 6th of December 2014 a man and a woman stormed into the premises of N Square Restaurant on Camden Quay in Cork city. They had in their possession a cardboard box containing bottles of alcohol. They were abusive, knocking several table settings onto the floor. They were asked to leave. The pair were escorted to the porch of the restaurant when the man asked to go back and pick up the box of alcohol. Nabil Sharif, the restaurant owner and head chef, told the man that he would get it for him. When he did so, the bottom of the box fell open and the bottles crashed to the ground.

5 The man then picked up the neck of a broken bottle with a jagged edge and proceeded to make a ‘punching’ motion at Mr. Sharif but did not make contact with him. He shouted ‘you F this’, called him a ‘foreigner’ and told him to ‘go back to your own country’ and that ‘you are a dead man’. At this point Mr. Sharif pulled back into the kitchen counter inside the restaurant. The man pursued Mr. Sharif, waving the bottle and again shouting ‘dead man’ and ‘go back to your country’. At this point Mr. Sharif picked up a chair to defend himself. The bottle came very close to his face and he threw the chair at the man. The woman came in and jumped on Mr. Sharif to stop him fleeing. He got away from her and threw the chair at the man a second time before retreating to the kitchen. Mr. Sharif hit him with the nozzle of a vacuum cleaner, and the man threw the bottle at him. Mr. Sharif punched the man and he left.

6 At 7:25 p.m. on the night in question, Garda Joseph Maher responded to a report of a disturbance at the relevant premises. Under examination in chief he told the jury that he had afterwards patrolled the area. On MacCurtain Street, near the restaurant, he encountered the man and woman holding a white box. He cautioned the woman and asked her if they had been in the N Square restaurant and she acknowledged that they had been there. The man gave his name as Paul McCarthy and his date of birth as 24th of July 1976. Garda Maher described him as seeming argumentative, defensive and agitated and he appeared to be intoxicated. He arrested the man calling himself Paul McCarthy under section 24 of the Criminal Justice (Public Order) Act 1994 for allegedly committing an offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994. He was taken to a Garda Station where he was detained for a number of hours before being released at 4 a.m.

7 Garda Maher later returned to the restaurant and established that there had been a CCTV system in operation there. The relevant footage was downloaded and was examined about a week later. In the course of that examination Garda Maher recognised the man involved in the incident as being the man who gave his name as Paul McCarthy on MacCurtain street. No other steps, such as an identification parade, were taken to identify the man involved in the incident in the restaurant. Quite some time later the appellant was charged with the offences on the indictment. The appellant was not known to Garda Maher before the incident. At trial, Garda Maher gave evidence while the CCTV footage was being shown to the jury, and confirmed that he had identified the man with the woman to be seen on that footage as being the Paul McCarthy whom he had encountered and arrested on MacCurtain Street later that evening.

The Defence Mounted at Trial

8 The appellant's defence was that he was not the man who had committed the offences in question. It was accepted that the man who gave his name as Paul McCarthy to Garda Maher on MacCurtain Street was the man on the CCTV footage, however it was contended that that person was not the appellant. The appellant was never arrested, detained or questioned in relation to the incident, nor was he asked to partake in an identification parade. The appellant claimed that the woman in the CCTV was the appellant's cousin, Sharon Maugham, but he maintained that the male was not him. He contended that the man who had committed the offences had given Garda Maher the name Paul McCarthy as a false name, together with a date of birth which it might be inferred had been provided to him by his appellant's cousin, Shannon Maugham, although the man in fact got...