DPP v McCowan

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 31 March 2003
• Neutral Citation: 2003 WJSC-CCA 4066
• Docket Number: [C.C.A. No. 154 of
• Court: Court of Criminal Appeal
• Date: 31 March 2003

2003 WJSC-CCA 4066

THE COURT OF CRIMINAL APPEAL

Hardiman J.

O'Donovan J.

Butler J.

154/01

DPP v. MCCOWAN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

DARREN (otherwise Joseph) McCOWAN

Applicant

Citations:

DPP V FINNERTY 1999 4 IR 364

DUNNE V DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

BRADDISH V DPP 2001 3 IR 127 2002 1 ILRM 151

BOWES & MCGRATH V DPP UNREP SUPREME 6.2.2003

DPP V DAVIS 2001 1 IR 146

Synopsis:

- [2003] 4 IR 349

Counsel for the applicant listed seven grounds of appeal against conviction among them were the giving of evidence about the defendant's saying nothing on the advise of his solicitor; the failure to note all the defendant's denials and the holding of the defendant in handcuffs in the public hall of Naas Circuit Court for a sufficient time for him to be seen by some or all of the jury. Defence counsel submitted that there was enough evidence, at least in the combination of these matters, to render the trial unsatisfactory. The prosecution submitted that while none of these things should have happened but in all the circumstances they were not sufficient to render the trial unsatisfactory.

Held by the Court of Criminal Appeal in an ex tempore judgment (Hardiman J; O'Donovan and Butler JJ): In citing DPP v Davis [2001] 1 IR 146 the court said that there is prejudice attaching to the defendant being seen in handcuffs. In regard to evidence about the defendant's saying nothing on the advise of his solicitor the law is clear following the judgment of DPP v Finnerty [1999] 4 IR 364. If Finnerty is to be taken seriously, the court should be slow to accept an argument that the Finnerty rules were breached. Finnerty was well established at the time this trial took place and the court were satisfied that there was in this case a clear breach of the rules laid down in that case. The court stated that if they failed to quash the conviction there was a danger that none of the important issues raised in this case would be taken seriously in the future and the court wanted them to be taken seriously accordingly they treated the application for leave to appeal as the appeal and quashed the conviction.

Reporter: BD

1 31st day of March, 2003 by Hardiman J.

Hardiman J.

2 This is the applicant's application for leave to appeal the conviction imposed on him after his trial at Naas Circuit Criminal Court. The applicant relies on seven matters and the Court has come to the conclusion that in relation to three of these matters there is some substance in what is alleged. In relation to two of them it is indeed conceded that there is some substance in what is alleged but a dispute as to what weight should be given to it.

3 To deal with them briefly in order: the first is the point relating to the circumstances in which the defendant was excluded from court during portions of his trial. It is unnecessary to rehearse the authorities which have been cited for the proposition that a judge can exclude a defendant who is disruptive. It is suggested that the judge should have done more by way of ascertaining the defendant's precise complaint and by way of advice to him about the prejudice that might accrue to him if he was excluded. The defendant was represented throughout the trial. We do not think that the judge could have been expected to do more than he did in these regards. We consider that he gave the defendant adequate warning of what would happen and that there is no point of substance arising from his exclusion from part of the trial.

4 In relation to the circumstances in which the defendant was given methadone shortly after the statement was made, we are of the view that that is deprived of relevance from the point of view of an appeal to the Court of Criminal Appeal by the fact that the defendant himself expressly disavowed the case that he made the statement in order to get methadone, or because he was promised methadone, or that its voluntariness was in any way compromised by the earlier omission to give him methadone. Therefore we do not believe there is any substance in this point.

5 The third point relates to the circumstances in which on two occasions, which are recorded in Book C and Book D of the trial transcript, reference was made to the fact that during earlier interviews, earlier that is than the statement, the defendant had denied any involvement in the offence in question, but had stated in answer to many questions that he would say nothing on the advice of his solicitor. This matter was given in evidence at the trial by two garda witnesses. In the case of the second garda, the evidence was given in response to a leading question, but that no doubt was because the earlier evidence had been given. We consider that this should not have occurred and indeed it is not disputed that this should not have occurred. The authority of the Court and the judgment of the Chief Justice in Director of Public Prosecutions v. Finnerty [1999] 4 I.R. 364 is very clear. That authority is also very simple to observe and we would be gravely perturbed if it were...