DPP v McDonagh

CourtCourt of Criminal Appeal
JudgeMr. Justice Geoghegan
Judgment Date29 May 2003
Neutral Citation2003 WJSC-CCA 4094
Date29 May 2003


Geoghegan J.

Ó Caoimh J.

de Valera J.




Criminal Law - Appeal - Conviction - Evidence - Admissibility - Whether prejudicial hearsay evidence wrongfully admitted - Whether conviction ought to be quashed as result of admission of hearsay evidence.

the applicant applied for leave to appeal against conviction in respect of five counts on an indictment, including threatening to kill contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997. Prejudicial hearsay evidence had been admitted during the course of the trial in relation to the count of threatening to kill. It was further submitted by the applicant that as a consequence of a direction not being given by the trial judge at an earlier stage in relation to one of the counts in the proceedings, prejudicial evidence had been admitted in relation to the remaining counts. The court treated the application for leave as the appeal itself.

Held by Geoghegan J delivering the judgment of the court in allowing the appeal in relation to the count of threatening to kill and quashing the conviction in relation to that count that the hearsay evidence, being prejudicial to the applicant, should not have gone to the jury. The Court refused leave to appeal against conviction in respect of the other counts in the indictment, inter alia, on the grounds that once different counts in respect of different victims were properly included in the same indictment and were tried contemporaneously, a direction in relation to counts in respect of one victim need not necessarily lead to a mistrial in relation to the other victims.

JUDGMENT of the Court delivered by
Mr. Justice Geoghegan on the 29th day of May 2003

This is an application for leave to appeal against conviction and sentence in respect of three counts on a lengthy indictment in respect of indictable offences and two counts relating to summary offences. The indictable offences were assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act, 1997, threatening to kill or cause serious harm contrary to section 5 of the Non-Fatal Offences against the Person Act, 1997and organising prostitution contrary to section 9(a) of the Criminal Law (Sexual Offences) Act, 1993. Each of the two summary offences were in respect of living on earnings of prostitution contrary to section 10(1) of the Criminal Law (Sexual Offences) Act, 1993, one of them relating to a girl called Michelle O'Neill and the other to a girl called Aisling Moran. This judgment is confined to the conviction issue the question of sentence being left There were grounds of appeal and amended grounds of appeal lodged some of these grounds being of a very general nature. At the hearing the application was argued in respect of each of these counts on a very specific basis and it would seem appropriate in this judgment to treat of the appeal in the manner in which it was argued in court.


There is no doubt at all that there was evidence before the jury of the assault in respect of which the jury convicted. It involved blows to the face, neck and arm and the victim, Michelle O'Neill, being thrown to the ground several times. But at a late stage in the trial the learned trial judge enquired whether self-defence was an issue in the case and he was told it was, even though it does not appear to have been mentioned up till then. He then proceeded to charge the jury in relation to the legal constituents of the defence of self-defence but it is conceded by the prosecution that his directions in this regard were erroneous in point of law. None of this matters however if the defence of self-defence was never really open at all and it is strongly argued on the part of the DPP that that is in fact the case. The parts of the transcript which could conceivably relate to such a defence are extremely limited and they can be explained quite shortly. On the fourth day of the trial the judge himself raised the issue. He said the following:-

"Just, now that the jury are not here. I take it that there is no issue of self-defence".


Counsel, for the DPP, Mr. Hynes responded that it did not appear to have been put "in any forceful way to any of the witnesses". Junior counsel for the accused, Mr. Condon, said that his leader, Mr. Peter Finlay, S.C. "did refer to the scissors and the incident surrounding …" The learned trial judge then asked a question which unfortunately did not get properly transcribed. But the opening words would seem to suggest that he was querying whether the defence of self-defence could be raised. Mr. Condon replied as follows:-

"Well, I accept that the accused did not give evidence but in the absence of that, in my respectful submission, once the issue is raised, what I submit is that, at that point, the prosecution takes on the burden of disproving it and, obviously, where an accused person does not give evidence, it is not as clear cut, My Lord." The trial judge proceeded to commence his charge to the jury at that point.


The incident relied on by way of self-defence arose out of evidence of incidents which took place after the applicant and Michelle O'Neill went drinking in Talbot Street on route for karaoke. They were seated at a long table at which there was a blonde girl to whom the applicant started talking. After a while Michelle O'Neill...

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