DPP v McHugh
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] IECA 92 |
| Docket Number | 177/16 |
| Court | Court of Appeal (Ireland) |
| Date | 23 March 2018 |
[2018] IECA 92
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Edwards J.
Hedigan J.
177/16
Conviction – Robbery – Fresh evidence – Appellant seeking to appeal against conviction – Whether verdict was perverse
Facts: The appellant, Mr McHugh, on 9th June 2016, following a trial which lasted six days, was convicted of the offence of robbery. Subsequently, he was sentenced to a term of four years imprisonment to date from the date of conviction. He appealed to the Court of Appeal against his conviction. The main grounds of appeal that were argued were that the judge erred in not insisting that Ms Delahunty be called as a witness by the prosecution or alternatively erred in declining to call Ms Delahunty himself as a witness. There was a further ground arising from the fact that the trial judge refused to allow the defence to invoke s. 16 of the Criminal Justice Act 2006 and put in evidence the contents of a memorandum of interview conducted by the Gardaí with Ms Delahunty on the evening of 13th January, 2014. A further ground that was argued was that the verdict was perverse; essentially, what was in issue was that the jury returned a guilty verdict on the robbery charge but a not guilty verdict on a charge of threat to kill arising out of the same incident.
Held by the Court that the fact that the defence was forced into a situation of calling a witness when it had an agreement to the contrary with the prosecution and when that witness then failed to give evidence in accordance with an earlier statement rendered the trial unsatisfactory. The Court was satisfied that the ground in relation to inconsistency or perversity of verdicts did not succeed.
The Court held that it would quash the conviction.
Appeal allowed.
On 9th June 2016, following a trial which had lasted six days, the appellant was convicted of the offence of robbery. Subsequently, he was sentenced to a term of four years imprisonment to date from the date of conviction. He has now appealed against his conviction.
The trial was primarily concerned with events that occurred on 13th January, 2014 at 326, Swords Road, Santry. There was also one count on the indictment relating to alleged threats to kill on 24th December, 2013 which resulted in a verdict of not guilty being returned by the jury. To put matters in context it should be explained that the alleged injured party was one Megan Lawlor. She gave evidence that she knew the accused as being an occasional boyfriend of one of her friends, Ms Robyn Skelly. Ms Lawlor gave evidence that she had a difficult relationship with Ms Skelly and fell out with her on occasions. She gave evidence of receiving a phone call on Christmas Eve, 2013 from the appellant stating that he wanted a laptop which was in her possession back and, according to her, going on to say that he was going to come up to her house and kill her stone dead and smash her house up. This was the subject of the first count of threatening to kill which resulted in an acquittal. Mr Lawlor's evidence was that she was in possession of the laptop because Ms Skelly, who was a drug addict, had stolen items belonging to her children previously and she had the laptop as a replacement for those items.
Her evidence in relation to 13th January, 2014 was that she was at home. She was in her bedroom and her two children were in bed in the next room. She said that she heard the front door getting kicked in. She heard somebody coming up the stairs and she locked her bedroom door. She heard the appellant saying ‘Megan, open the door’ before he proceeded to kick her bedroom door in. He demanded the laptop. Ms Lawlor indicated to the appellant that Robyn Skelly had taken the laptop from her. The appellant did not believe her and Ms Lawlor rang the mother of Robyn Skelly who confirmed that the laptop had been taken by Robyn. According to Ms Lawlor, the appellant, Mr McHugh, grabbed her by the throat and was screaming at her, saying he ‘was going to batter her’ if he did not get the laptop. He threw her onto the bed and was demanding information in relation to the laptop, saying that he was going to stand on her head if she did not tell him where it was. He then indicated that he was going to take a plasma television before ultimately taking the phone that she had in her hand. According to her, he threatened to stab her, to kick her head in, to kill her stone dead and to strangle her.
At one point during the incident he introduced a female to her who was present and asserted that this woman was being paid €2,000 to come up to kill her and another €1,000 in order to ‘slice her face’. It appeared to Ms Lawlor that this woman did not know anything about this and that she was attempting to calm the situation. Ms Lawlor claimed that the appellant had a ‘blade’ with him and he took it out of his pocket and put it right up to her cheek but the other female started screaming at him not to do it, saying that there were kids in the house. The appellant stated that he did not care if there were kids in the house but the female who was present convinced him not to cut Ms Lawlor. According to Ms Lawlor, when the appellant left he stated that if she rang the Gardaí, he was going to come back and petrol bomb her house.
The other female referred to in the course of this summary narrative is Annemarie Delahunty. Her role at trial is central to this present appeal. The main grounds of appeal that have been argued are that the judge erred in not insisting that Ms Delahunty be called as a witness by the prosecution or alternatively erred in declining to call Ms Delahunty himself as a witness. There is a further ground arising from the fact that the trial judge refused to allow the defence invoke s. 16 of the Criminal Justice Act 2006 and put in evidence the contents of a memorandum of interview conducted by the Gardaí with Ms Delahunty on the evening of 13th January, 2014. A further ground that has been argued is that the verdict was perverse. Essentially, what is in issue here is that the jury returned a guilty verdict on the robbery charge but a not guilty verdict on a charge of threat to kill arising out of the same incident.
The situation relating to Ms Delahunty was discussed at the very first page of the transcript. Prosecution counsel explained as follows:
‘There was another lady arrested and questioned in relation to this matter, Ms Delahunty. She is not in the book of evidence, but I accept that she would be an essential witness from the perspective of the defence. She was never charged. She gives an account which, I suppose, is partially beneficial to the prosecution and partially beneficial to the defendant. The agreement that I had with Ms Frayne [counsel for the then accused] was that we would ask the court to call her as a witness so that both parties would be in a position to cross examine her if necessary. That's simply in circumstances where I don't know what she's going to say and I do have material from her memorandum of interview which I would wish to put to her, and obviously Ms Frayne would wish to elicit matters from her too. So subject to the Court, our proposal was that we'd ask the Court to exercise its discretion to do that.’
Counsel went on to explain that the lady in question had been present the previous day when the trial was first listed but had not proceeded in a situation where the complainant was not present. It was understood that Ms Delahunty had returned home to Limerick on the previous day. Counsel for the prosecution commented:
‘I agree with Ms Frayne that this would be an essential witness from the perspective of the defence and that it wouldn't be a fair trial to proceed without her.’
Counsel explained that if a warrant was issued he believed it would be possible to secure the attendance of the witness in question but he made clear that if the trial proceeded, and he was anxious that it should because the injured party was in a stressed state and had come to court with a child who required minding, that if in fact the attendance of Ms Delahunty could not be secured before the trial ended he anticipated that there would be an application for a discharge of the jury and if that happened he would not be in a position to resist.
Following the incident, Mr McHugh left the premises as did the woman who had entered the bedroom. Contact was very quickly made with An Garda Síochána and members of the Gardaí made their way to the scene almost immediately. They obtained a description of the vehicle in which Mr McHugh had left and that vehicle was stopped a short time later. There were three occupants, it was driven by Ms Delahunty, Mr McHugh was the front seat passenger and Ms Robyn Scully was a rear seat passenger. Ms Scully produced a phone from her handbag as the one that had been taken away from the bedroom of Ms Lawlor. Mr McHugh was arrested and brought to Coolock Garda Station. Ms Delahunty was also arrested and brought to Swords Garda Station, where she was interviewed. A memorandum was taken of that interview in the ordinary way. It is not a lengthy one and it merits quotation in full:
Q. What is your full name?
A. Annmarie Delahunty.
Q. What is your date of birth?
A. The seventh of the eight, “87.
Q. Do you understand why you have been arrested?
A. Yea.
Q. We are investigating a burglary that occurred at 326 Swords road, Santry, at 8pm today, 13/ 1/2014, when a male and female entered the house and took a mobile phone. Do you understand that?
A. Ya. It wasn't taken. It was given.
Q. What is your version of events?
A. Pulled up to Megan's house. Brian went in there about two minutes. I hear screaming, so I went in. I went upstairs. The lights were off...
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