DPP v McNulty
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin. |
| Judgment Date | 29 October 2014 |
| Neutral Citation | [2014] IECCA 34 |
| Court | Court of Criminal Appeal |
| Date | 29 October 2014 |
[2014] IECCA 34
COURT OF CRIMINAL APPEAL
MacMenamin J.
Moriarty J.
Herbert J.
BETWEEN:
AND
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S49
NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3
Public interest – Onus of proof – Recognition evidence – Applicant seeking a certificate for leave to appeal to the Supreme Court on a point of law – Whether trial judge”s exposition of the law was correct
Facts: The applicant, Mr McNulty, was sentenced to imprisonment in 2012 having been found guilty of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and the offence of intentionally or recklessly causing serious harm contrary to s.4 of the 1997 Act. The applicant appealed his conviction to the Court of Criminal Appeal on the basis of two alleged errors on the part of the trial judge. First, he urged that the trial judge had erred in failing to charge the jury to the effect that the burden of disproving the defence of alibi lay at all times with the prosecution. Second, the applicant argued that the trial judge erred in rejecting the application for a direction of “not guilty” at the close of the prosecution case due to the allegedly weak nature of the identification evidence and the fact that the prosecution case rested solely on same. The Court of Criminal Appeal rejected the appeal in a 2014 ex tempore judgment. With regard to the first ground of appeal, the Court was satisfied that the trial judge”s exposition of the law was correct; the trial judge emphasised that at all times the onus of proof lay on the prosecution to prove its case. The Court concluded that the judge made this clear to the jury. In relation to the second ground of appeal, the Court pointed out that the identification evidence was, in fact, recognition evidence; the victim knew the applicant and recognised him. This was not, therefore, identification of some unknown person. Further to this, the Court was satisfied that the visibility conditions at the time of the incident, and the fact that the victim had two sightings of her assailant, rendered it safe to leave such evidence to the jury. The applicant sought an order from the Court pursuant to s.29 of the Courts of Justice Act, 1924 seeking a certificate for leave to appeal to the Supreme Court on a point of law. Having accepted that the authority of The People Attorney General v Casey (No 2) [1963] IR 33 deals with the warning to be given to a jury in matters of identification evidence, and that the case of People (DPP) v Burke & O”Leary [1986] 3 Frewen 92 addresses the warning to be given to a jury in relation to alibi evidence, the applicant contended that there must be an obligation on a trial judge to give a direction on the relationship between the two. The applicant argued that the jury ought to be charged to the effect that if they reject alibi evidence put forward by the defence, this does not automatically lend support to the identification evidence put forward by the prosecution.
Held by MacMenamin J that, having considered the ‘twin requirements’ in DPP v O”Connor [2014] IECCA 4 to the test for one to succeed in reaching the threshold for the granting of a certificate pursuant to s.29, the burden of proof rests with the applicant in establishing to the court that the double requirements are met; the court must be satisfied why the point of law is one of exceptional public importance, and further, why it is desirable in the public interest that an appeal to the Supreme Court should lie. The Court of Criminal Appeal had found in its judgment that the trial judge had separated the alibi evidence from the accused”s own evidence; the trial judge had repeatedly emphasised the duty of the prosecution. MacMenamin J held that the submissions in the case simply did not address the s.29 tests in any meaningful way. The Court had found on the appeal that the jury were adequately charged. MacMenamin J found that it follows that the applicant”s case does not turn on points of law, as asserted. MacMenamin J held that that the issue on which a certificate is sought is, rather, on the application of points of law to the particular facts of the applicant”s case, and not a point of law which requires clarification in the public interest. Having regard to these circumstances, MacMenamin J held that it could not be said that this was a point of law of exceptional public importance, nor that it was desirable in the public interest that this appeal should be brought to the Supreme Court. The Court of Criminal Appeal refused the application.
MacMenamin J held that the applicant failed to address both limbs of the test set out in s.29 and confirmed in case law; the court was not directed to any wider implications of the issues involved, but rather the focus was directed, as it had to, to the applicant”s own circumstances. MacMenamin J held that the applicant failed to outline to the Court, any gravity and importance of the issues he sought to address; further, no reference was made to the second limb of the test. The Court declined to make the order sought.
Application refused.
Judgment of the Court delivered on the 29th day of October, 2014 by Mr. Justice John MacMenamin.
1. The applicant seeks an order pursuant to s.29 of the Courts of Justice Act, 1924 ("the 1924 Act"), as amended by the provisions of the Criminal Justice Act, 2006, seeking a certificate for leave to appeal to the Supreme Court on a point of law.
2. S.29 of the Courts of Justice Act, 1924, as substituted by s.22 of the Criminal Justice Act 2006 provides as follows:
(1) Subject to subsection (9A) of this section, no appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.
(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.
3. The three points in question are said to be:
1. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge instruct the jury on the relationship between the alibi defence and the burden of proof to the effect that there is no onus on the Accused to establish he was not present? In which case, is the onus on the prosecution to prove that the Accused was present thus disproving the defence of alibi?
2. Where a defence of alibi has been raised and the evidential burden satisfied, should the trial judge charge the jury that before proceeding to convict the accused, the prosecution is required to demonstrate that the alibis were not telling the truth and to prove beyond reasonable doubt that the alibis ought to be disbelieved?
3. In cases where the prosecution relies on identification/recognition evidence and a defence of alibi has been raised and the evidential burden satisfied, should the jury be charged to the effect that where the jury rejects the alibi defence that such rejection does not lend support to the recognition/identification evidence upon which the prosecution is based?
4. On the 30 th July 2012, the applicant herein was sentenced to eight years imprisonment having been found guilty of the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 and the offence of intentionally or recklessly causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997. The applicant was convicted of a vicious attack on his former partner who identified him as the assailant.
5. The Applicant appealed his conviction to this Court on the basis of two alleged errors on the part of the trial judge. First, it was urged on his behalf, that the trial judge had erred in failing to charge the jury to the effect that the burden of disproving the defence of alibi lay at all times with the prosecution. Second, the applicant argued that the trial judge erred in rejecting the application for a direction of 'not guilty' at the close of the prosecution case due to the allegedly weak nature of the identification evidence and the fact that the prosecution case rested solely on same.
6. This Court rejected the appeal in an ex tempore judgment delivered on the 10 th March, 2014. With regard to the first ground of appeal, the Court was satisfied that the trial judge's exposition of the law was correct. The trial judge emphasised that there was no onus on the accused to disprove the prosecution case, but rather at all times the onus of proof lay on the prosecution to prove its case. This Court concluded that the judge made this clear to the jury, clearly, emphatically and repeatedly.
7. In relation to the second ground of appeal, the Court pointed out that the identification evidence was, in fact, recognition evidence. The victim knew the applicant and recognised him. This was not, therefore, identification of some unknown person. Further to this, the Court was satisfied that the visibility conditions at the time of the incident, and the fact that the victim had two sightings of...
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