DPP v OHalloran
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] IECA 319 |
| Docket Number | Record No. 277/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 07 December 2017 |
[2017] IECA 319
THE COURT OF APPEAL
Mahon J.
Peart J.
Birmingham J.
Mahon J.
Record No. 277/2016
Crime & sentencing – Threats to damage and kill/cause serious harm -
Facts: The appellant had been convicted of making threats against a serving Garda. He appealed against his convictions arguing that evidence as to the recognition of his voice should not have been admitted, and that the trial judge had erred in respect of the Casey warning in respect of that evidence. The former ground was withdrawn having considered the judgment in DPP v Crowe [2015] IECA 9.
Held by the Court that the appeal would be dismissed. The Court was satisfied that a sufficient charge was given by the trial judge to the jury in respect of the voice identification evidence, and that the trial as a whole was fair. AG v Casey (No. 2) [1963] IR 33 considered.
The appellant was convicted on the 21st October 2016 at Limerick Circuit Criminal Court of two offences, namely:
(i) making a threat to damage property contrary to s. 3(a) of the Criminal Damage Act 1991, and
(ii) making a threat to kill or cause serious harm contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997.
He has appealed against his convictions.
The appellant was sentenced on the 28th October 2016 to four years imprisonment in respect of the first offence, and to a similar term of imprisonment in respect of the second offence. Both sentences were directed to be served concurrently, as between each other, but consecutively to a sentence already being served, as the index offences were committed while the appellant was on bail.
On the 2nd April, 2015 a person, alleged to be the appellant, telephoned Henry Street Garda Station in Limerick and spoke to Garda Pat Whelan. He threatened Garda Whelan's private residence with the intention that Garda Whelan would be fearful that such a threat would be carried out. Also, on the same date, he threatened to kill or cause serious harm to Garda Whelan with the intention that Garda Whelan would believe that such a threat would be carried out.
In the course of making his threats the caller specifically and accurately identified the location and colour of Garda Whelan's private residence (which he threatened to burn down), the type of car he drove and also referred to a white horse that Garda Whelan rode as a hobby and the area in which he rode it. It was clear that the caller possessed detailed knowledge relating to Garda Whelan's private life.
The caller also made specific references to an incident on the 25th March 2015, approximately one week earlier, when gardaí including Garda Whelan entered a house on Dublin Road, Limerick for the purposes of executing a bench warrant for the appellant's brother, and while there discovered the appellant hiding in the attic. The reference on the telephone to Garda Whelan riding a white horse had also been made by the appellant when he spoke to him on that occasion. The appellant, on the 25th March, used the words “ clip-clopping around Ardrahan on a big white horse around the Christmas”. Identical words were used by the telephone caller. Ardrahan is the location of Garda Whelan's house.
Furthermore, in the course of the telephone call the caller identified himself by reference to both his christian name and his nickname, Joey.
The telephone in the Garda Station was on loudspeaker mode and the entire conversation was overheard by Garda O'Connell and Sergeant Muldoon, as well as Garda Whelan. Both Sergeant Muldoon and Garda Whelan gave evidence that they recognised the voice of the caller as that of the appellant having had eleven years of interaction with him.
There were originally two grounds of appeal submitted on behalf of the appellant, namely:-
(i) the learned trial judge erred in law in ruling as admissible the evidence of voice identification/recognition, and
(ii) the learned trial judge erred in law by failing to contextualise the Casey warning concerning voice identification/recognition when requisitioned so to do by the counsel for the appellant.
At the commencement of the hearing of the appeal senior counsel for the appellant informed the Court that the first ground of appeal was being withdrawn having regard to this judgment of this Court in DPP v. Crowe [2015] IECA 9, delivered by Edwards J.
The appellant in that case appealed his conviction arising from the sending of a menacing telephone message to a member of An Garda Síochána. The telephone call was very short but its content was clear; the garda's life was very clearly threatened. On the following day the garda officer listened and watched a video recording of an interview which had taken place the previous day between gardaí and the appellant. He said he immediately recognised the voice of the appellant as being the same voice that had spoken to him on the telephone. He said he was 100% certain. Both the detective sergeant and the appellant in that case had known each other previously, but there had been no recent dealings between the two and the detective sergeant was puzzled as to why the appellant singled him out by making the telephone threat.
Significant differences in the background facts between Crowe and the instant case are clear. In the instant case there had been interaction between Garda Whelan and the appellant just one week previously in somewhat strained circumstances. More importantly, some of the information concerning Garda Whelan's private life (in particular his hobby of riding a white horse) was specifically referenced in their face to face meeting a week earlier and repeated in the course of the telephone conversation. The identification / recognition factors were significantly stronger in the instant case than in Crowe.
In Crowe the absence of any particular rules or guidelines relating to voice identification / recognition was noted by this Court. In that case also, the Court considered the adequacy of the Casey / Turnbull warning adapted to the context of voice identification evidence given to the jury describing it as impeccable.
The appeal in Crowe was allowed and the conviction quashed for reasons particular to that case. In the course of its judgment in that case, the Court stated:-
‘The court considers that counsel for the appellant was correct in acknowledging that there may be no perfect or optimum system, and accordingly it is not for this court to be prescriptive concerning voice identification procedures in future cases. This is the first such case to come before this court and the absence of safeguards in this case, though a matter to be deprecated, may be partly explained by the novelty of the situation presenting itself to the investigating Gardaí in this case. Be that as it may, the Court agrees with counsel for the appellant that the total absence of safeguards meant that minimum standards of fairness were not met in the circumstances of this particular case, and accordingly the conviction cannot be upheld.’
In Crowe the voice identification evidence was described invariably as weak, infirm, of slight cogency and based largely upon largely upon circumstantial evidence. This Court was satisfied that there was a significant risk of subliminal bias.
Also in Crowe, the Court lauded the existence of advice and guidelines relating to the use of voice and visual identification procedures in the U.K. which are absent in this jurisdiction.
It is contended on behalf of the appellant that the ‘ Casey’ warning given by the learned trial judge in the course of his charge to the jury was insufficient, and more particularly, no effort was made to contextualise it. A requisition was made after the conclusion of the charge by counsel on behalf of the appellant on that basis.
The learned trial judge addressed the issue of the voice identification evidence in the course of his charge in the following terms:-
‘…This case clearly involves an issue of aural, voice identification or recognition. The prosecution say that the accused, Darren O'Halloran, was the person that made the telephone call to Detective Garda Pat Whelan on the 2nd April 2015 and allegedly made certain threats. The prosecution case - as part of the prosecution's case they say that Detective Garda Whelan and others recognised the voice as being that of the accused. The accused for his part denies emphatically taking any such call or any such threats at all to the gardaí or to Garda Whelan on the 2nd April 2015. Now, identification whether it is by ear or by eye, is a human process and you will all be aware of the fallibility of such human process. In such cases as this, involving voice identification or recognition, it is appropriate to warn a jury that if their verdict depends totally or substantially on the correctness of such, as in this case the voice identification or recognition, that the jury should bear in mind that there has been instances where responsible witnesses who honesty is not in question and whose opportunity to hear what they say they heard has been adequate have made positive voice...
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