DPP v Mekonnen

CourtCourt of Criminal Appeal
JudgeMcKechnie J.
Judgment Date11 October 2011
Neutral Citation[2011] IECCA 74
Docket Number[C.C.A No. 88 of
Date11 October 2011

[2011] IECCA 74





[C.C.A. No. 88/08]
DPP v Mekonnen









AG, PEOPLE v MILLS 1957 IR 106

DPP v RAPPLE 1999 1 ILRM 113 1998/16/6032



AG, PEOPLE v CASEY (NO 2) 1963 IR 33

R v TURNBULL & ANOR 1977 QB 224 1976 3 WLR 445 1976 3 AER 549

DPP, PEOPLE v O'REILLY 1990 2 IR 415

DPP v DUFF 1995 3 IR 296 1994/9/2614

DPP v LEE 2004 4 IR 166 2004/16/3559 2004 IECCA 18

DPP v O'TOOLE & TYNDALL UNREP CCA 26.5.2003 2003/19/4398

R v DWYER; R v FERGUSON 1925 2 KB 799 1925 18 CR APP R 145

R v MELANY 1925 18 CR APP R 2


DPP v O'DONOVAN 2005 1 IR 385 2004/16/3682 2004 IECCA 48


DPP v WALLACE UNREP CCA 30.4.2001 2001/8/2212

DPP v CRONIN 2003 3 IR 377 2003/15/3202




Identification - Visual identification - Admissibility of evidence of identification - Informal identification - Appropriateness of informal identification - Whether identification of accused adequate - Whether reason for not holding formal identification parade sufficient - Whether direction of trial judge to jury sufficient to exclude risk of injustice thought to arise from frailties of informal identification - Attorney General v. Martin [1956] IR 22, People (DPP) v Duff [1995] 3 IR 296 and People (DPP) v Lee [2004] 4 IR 166 followed; People (Attorney General) v Byrne [1974] 1 IR 1, People (Attorney General) v Casey (No 2) [1963] IR 33, People (DPP) v Cronin [2003] 3 IR 377 and People (DPP) v Wallace (Unrep, CCA, 30/4/2001) applied - Leave to appeal refused (88/2008 - CCA - 13/10/2011) [2011] IECCA 74

People (DPP) v Mekonnen

Facts The appellant was convicted on one count of rape and was sentenced to seven years imprisonment. The grounds upon which he relied in seeking leave to appeal against his conviction were: (1) that the evidence of an informal identification should not have been allowed go to the jury, (2) that the judge's charge in relation to such evidence was inadequate, (3) that such charge was likewise defective with regard to the standard and onus of proof, and (4) that the verdict of the jury was in its totality perverse. The injured party met the appellant outside a nightclub on 3 August 2005 and was by her own admission quite drunk at the time. Subsequently the injured party made a complaint of rape to the Gardai and supplied a description of the person who raped her. On 25 August, a Garda from the investigating station saw a person who fitted the general description given by the injured party. He spoke to the individual and discovered that the man intended to travel to Limerick, perhaps later that day. Consequently, the injured party was contacted and was taken to Busaras to see if she could identify her assailant. An independent Garda was appointed who had no real knowledge of the investigation. The injured party identified the appellant as her assailant. It was submitted on behalf of the appellant that fair procedures were not adhered to in conducting the informal identification parade. Furthermore, it was submitted that the gardai should have arrested the appellant and arranged for a formal identification parade prior to what occurred in Busaras. It was further submitted that if the gardai were correct about the insufficiency of evidence available prior to the visit to Busaras it must follow that the purpose of such a visit was to generate a suspect and such evidence should not have been allowed before the jury. Finally, it was said that the reasons so found by the trial judge, which led her to exclude any evidence obtained whilst the accused was in custody, should apply equally to the question of identification. Evidence was given by the relevant gardai that the appellant was a suspect at the time he was identified by the Garda and they did not have sufficient grounds to effect an arrest at that time. In relation to the trial judge's charge it was submitted by the appellant that neither the form of words used in The People (Attorney General) v Casey (no.2) [1963] I. R. 33 or words having an equivalent input or effect were used by the trial judge in her charge. It was also submitted that the learned judge did not adequately cover facts specific to the case such as the injured party's drunkenness or the circumstances of her identification of the appellant at Busaras.

Held by C.C.A., McKechnie J. (Budd, O'Keeffe JJ) in refusing leave to appeal: That by far the most preferred way of obtaining visual identification evidence is by way of a formal identification parade and the procedures for this were well established. However, recourse may be had to other appropriate informal identification processes. If visual evidence, derived other than from a formal identification parade is to be tendered the court will require an explanation, seeking objectively justification as to why a formal parade was not held. Neither the truthfulness nor accuracy of the evidence given by the gardai herein was disputed. The information which the Garda who spotted the appellant had was limited and second-hand in quality and he could not be criticised for not arresting the appellant. No finding could be made that the Gardai were in error in not affecting an arrest. Having regard to all the evidence, the identification was conducted fairly. The matters of concern for the trial judge regarding the appellant's treatment in custody could have no influence on the events which took place at Busaras prior to his arrest and consequently the judge's ruling in this regard was not relevant to the present issue. When the learned trial judge's charge and re-charge were considered in conjunction one with the other, this was sufficient to satisfy the requirements of both Casey (no.2) and the People (DPP) v O'Donovan [2005] 1 I.R. 385. Provided all necessary directions have been given to the jury it is a matter for the trial judge as to how to structure the charge. Although the judge's charge on the question of inferences was inadequate and incomplete, given the limited context in which that issue became relevant in light of the total volume of evidence otherwise available, the impugned section of the charge did not have the effect of rendering the verdict either unsatisfactory or unsafe. Finally, the contention that the verdict was perverse was not sustainable.

Reporter: L.O'S.


JUDGMENT of the Court delivered on the 11th day of October. 2011 by McKechnie J.


1. Mr. Mekonnen was charged, by way of a single count on the indictment, with the rape of one J.M., a female person on the 3 rd August, 2005, at York Street in the City of Dublin: such being contrary to s. 48 of the Offences Against the Persons Act 1861, s. 2 of the Criminal Law (Rape) Act 1981, and s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. After a thirteen day trial he was convicted on the 2 nd February, 2007, of the offence as charged. The jury verdict was by a majority of ten to one, the twelfth juror having previously been excused. He was sentenced to seven years imprisonment to run from the 29 th June, 2006, the date of his initial incarceration. Five years post release supervision was also imposed. In his notice of appeal seeking leave to appeal against conviction, he makes five complaints, the first and second of which can be treated as one. The grounds upon which he relies are:-


(1) that the evidence of an informal identification should not have been allowed go to the jury,


(2) that the judge's charge in relation to such evidence was inadequate,


(3) that such charge was likewise defective with regard to the standard and onus of proof, and


(4) that the verdict of the jury was in its totality perverse.


2. Of the general background, which is not complicated, a limited summary is sufficient to have the appeal issues put in context for the purpose of review and conclusion. At about 2.30am on the morning of the 3 rd August, 2005, the injured party met the appellant outside a nightclub in the City of Dublin from where she had come. She was, by her own admission, quite drunk at the time. Whilst sitting on a step she casually greeted him and asked for a drink from the bottle of red wine which accompanied him. After some general chat they left the main thoroughfare, at her suggestion, for fear of being caught with the bottle. They ended up at the steps of York House in York Street. They had a cigarette, more wine and further general conversation, staying there for some considerable time, perhaps even for an hour or two. At some point Mr. Mekonnen started getting "physical" but his advances were rejected. The injured party repeatedly said "stop". This had no effect on the appellant and over a period of time he raped her. He then left the scene as did she. She returned later in a taxi to get some evidence and sometime afterwards made a complaint, initially of assault, and later of rape, which was subsequently investigated by Harcourt Terrace Garda Station. There, the injured party gave a description of the person who raped her, describing him, inter alia, as being small, black and from Africa.


3. On the 25 th August, 2005, Garda Rowe and Garda Ganly both from the investigating station, were on duty at Grafton Street in Dublin. Their rank may be that of Detective Gardaí and not simply Gardaí. By chance, Garda Rowe saw a person who because of his general...

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    ...AG, PEOPLE v CASEY (NO 2) 1963 IR 33 R v TURNBULL 1977 QB 224 1976 3 WLR 445 1976 3 AER 549 DPP v O'REILLY 1990 2 IR 415 DPP v MEKONNEN 2012 1 IR 210 2011/18/4414 2011 IECCA 74 R v FLYNN & ST JOHN 2008 EWCA CRIM 970 2008 2 CAR 20 ORMEROD SOUNDS FAMILIAR? VOICE IDENTIFICATION EVIDENCE 200......
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    ...Mr. McDonald matched the description, did not provide a sufficient basis for an arrest. Reference is made to the case of DPP v. Mekonnen [2012] 1 IR 210. Reference is also made to Walsh on Criminal Procedure (2nd Ed, Round Hall 2016) and to the observations there (at para. 4–99) that “[p]ar......
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