DPP v Mcdonagh

• Jurisdiction: Ireland
• Judgment Date: 01 November 2010
• Date: 01 November 2010
• Docket Number: [C.C.A. No. 296 of
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. McDonagh

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

Anthony McDonagh

Accused

[2010] IECCA 127,

[C.C.A. No. 296 of 2008]

Court of Criminal Appeal

Criminal law - Evidence - Admissibility - Judges' Rules - Breach of Judges' Rules - Caution - Voir dire - Judge's charge - Adequacy of charge - Assessment of evidence - Circumstantial evidence - Inferences - Whether admitting comment constituted error of law - Whether reference to voir dire affected jury - Whether accused prejudiced - Whether appropriate warning given to jury.

The accused was tried and convicted in the Circuit Criminal Court of three offences arising out of a shooting incident. He sought leave to appeal on a number of grounds, including that the trial judge incorrectly admitted evidence of a certain verbal statement allegedly made by the accused, submitting that there were various breaches of the Judges' Rules which made it dangerous to allow the evidence to go before the jury, in particular the absence of a caution and the failure by the detective garda to immediately note the verbal statement and read it back to the accused.

The accused further contended that the trial judge should not have disclosed to the jury that he had made a ruling in relation to the admissibility of the verbal statement and objected to the manner in which the trial judge instructed the jury, in particular the manner in which the judge dealt with the question of recognition evidence, the drawing of inferences and circumstantial evidence.

Held by the Court of Criminal Appeal (McKechnie, Budd and O'Keeffe JJ.), in refusing leave to appeal, 1, that there was no potential prejudice caused to the accused by the trial judge informing the jury that he had made a ruling on admissibility in circumstances where he effectively directed the jury to disregard the impugned statement if the prosecution had not satisfied them as to its making and veracity beyond a reasonable doubt.

Mitchell v. The Queen [1998] A.C. 695 considered.

2. That, when reviewing the direction given by the judge to the jury, the court had to ask itself whether, as against the entirety of the circumstances, including the rest of the evidence which was available, there was any question of the description given by the judge, in itself, having a potential effect on the jury's deliberation or on the authority of the verdict which it returned.

• R. v. Exall (1866) 4 F. & F. 922 considered.

3. That the absence of a caution, in the circumstances, did not undermine the admissibility of the statement allegedly made by the accused. The statement was not made in the contextual framework of the judges rules and even if it was the resulting non-compliance, when the evidence was looked at as a whole, was not of such a nature as to render the statement inadmissible.

Obiter dicta: 1. When a judge engaged with the facts of a case, he or she must emphasise, with particular care, that the views expressed might be entirely ignored and that "fact" was purely and exclusively a matter for the jury.

Mitchell v. The Queen [1998] A.C. 695 considered.

2. Unless there were exceptional reasons arising out of specific circumstances which in the interests of a fair and proper trial demanded that the jury receive some information about what previously had occurred, no reference to the voir dire should be made.

Mitchell v. The Queen [1998] A.C. 695 considered.

3. A trial judge was free to express basic principles in his own way, provided that the essence of what he conveyed left the jury in no doubt as to the correct rules which they must apply in evaluating the evidence presented to them.

Cases mentioned in this report:-

Mitchell v. The Queen [1998] A.C. 695; [1998] 2 W.L.R. 839; [1998] 2 Cr. App. Rep. 35; [1998] Crim. L.R. 421.

The People (Attorney General) v. Byrne [1974] I.R. 1; (1973) 110 I.L.T.R. 17.

The People (Attorney General) v. Casey (No. 2)[1963] I.R. 33.

The People (Director of Public Prosecutions) v. Cahill[2001] 3 I.R. 494.

The People (Director of Public Prosecutions) v. Pringle(1981) 2 Frewen 57.

R. v. Exall (1866) 4 F. & F. 922.

Application for leave to appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by McKechnie J., infra.

The accused was tried and convicted of three offences by Galway Circuit Criminal Court (Judge Groarke and a jury) on the 27th November, 2008 and was sentenced to twelve years imprisonment.

The accused issued a notice of appeal on the 17th December, 2008, seeking leave to appeal against his conviction.

The application for leave to appeal was heard by the Court of Criminal Appeal (McKechnie, Budd and O'Keeffe JJ.) on the 1st November, 2010.

Ex tempore

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the court was delivered by a single member.

McKecnhie J. 1st November, 2010

[1] The accused in this case was charged with the following three offences as set out in the indictment; count no 1: possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act 1925, as substituted and inserted by s. 43 of the Criminal Justice Act 2006, and as amended by s. 35 of the Criminal Justice Act 2007; count no 2: possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act 1925, as amended in the manner herein described, and; count no 3: causing serious harm contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997.

[2] The accused was arraigned on the 18th November, 2008 and entered pleas of not guilty in respect of each count. The trial, before Judge Groarke sitting at Galway Circuit Criminal Court, commenced immediately thereafter and concluded on the 27th November, 2008, when the jury by unanimous decision returned a verdict of guilty on all charges. The trial judge sentenced the accused to 12 years imprisonment on each count, all to run concurrently and to commence as and from the 24th April, 2008.

[3] In his notice of appeal dated the 17th December, 2008, the accused seeks leave to appeal against conviction on the several grounds therein specified. At the appeal hearing, only five such grounds were advanced in support of his application. By reference to the original numbering in the notice of appeal, the court proposes firstly to deal with ground no. 4. This ground arises out of a ruling made by the trial judge to the effect that a certain "remark" or "comment" allegedly made by the accused to Detective Garda Moran was admissible and therefore was available for the jury's consideration.

[4] The charges in question arise out of a shooting incident which took place on the 18th April, 2008, at Whitestrand Road in Galway. As a result of that incident and of the gardaí's assessment of the information obtained during the follow up investigation, it was decided that an armed unit would patrol Whitestrand Road and the surrounding area in the period immediately following. On the 22nd April, 2008, Detective Garda Moran called to the house of the accused at about 12.20 p.m. and was invited in. The accused, who was alone, appeared agitated and concerned, in particular about the fact that members of the extended Ward family were driving up and down outside his house and had been doing so for some time. After about five or six minutes in the house, the evidence given to the jury was that the accused said to Detective Garda Moran "I am fucked, what sentence will I get?"

[5] Almost immediately after the making of this alleged comment, Mrs. McDonagh and her daughters returned to the house. The family were quite unhappy at the level of protection in place and accused the gardaí of not doing enough to help them. Remarks were made to the effect that...