DPP v Popovici

JurisdictionIreland
JudgeMr. Justice Sheehan
Judgment Date20 December 2016
Neutral Citation[2016] IECA 406
Docket Number207/15
CourtCourt of Appeal (Ireland)
Date20 December 2016

[2016] IECA 406

THE COURT OF APPEAL

Sheehan J.

Birmingham J.

Sheehan J.

Mahon J.

207/15

The Director Of Public Prosecutions
RESPONDENT
V
Duku Popovici
APPELLANT

Conviction – Aggravated burglary – Fair trial – Appellant seeking to appeal against conviction – Whether appellant received a properly instructed jury

Facts: The appellant, Mr Popovici, was convicted by majority verdict on the sole count of aggravated burglary contrary to s. 13(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001, following a 3 day trial commencing on 15th April, 2015, before Clonmel Circuit Court. On 23rd July, 2015, he was sentenced to a term of 12 years imprisonment with the last two years thereof suspended for a period of five years. The appellant appealed to the Court of Appeal against conviction on the grounds that the trial judge erred in law in: (i) instructing the jury in his charge that it would be perverse not to convict the appellant of attempted burglary; (ii) summarising the prosecution case twice in his charge to the jury; (iii) failing to mention the absence of forensic evidence linking the appellant with the interior of the house. By way of response, the respondent, the DPP, submitted that the first ground of appeal was moot as the appellant had been convicted of aggravated burglary, not attempted burglary and that the trial judge was referring to attempted burglary when he stated that it would be perverse to acquit. In addition, the respondent submitted that there is no rule of law which requires that the summary in a trial judge's charge be in a particular order; rather, what is required is that it contains the essential elements. Finally, the respondent submitted that it is not essential that the trial judge should make every defence point in his charge.

Held by the Court that it could not be said that the trial judge undermined the power of the jury to return a verdict in conflict with the opinion he expressed. The Court held that while it is generally preferable that a trial judge express no opinion as to the verdict, the Court was satisfied that in this particular case he was entitled to express his opinion in the manner that he did. The Court held that the charge in this case was admirably succinct. The Court saw no unfairness in the charge and insofar as it related to the prosecution and defence cases. In the Court's view there was no onus whatsoever on the trial judge to tell the jury that there was no DNA evidence to place the appellant in the conservatory and held that the appellant received a properly instructed jury.

Sheehan J held that the appeal against conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by on the 20th day of December 2016 by Mr. Justice Sheehan
1

This is an appeal against conviction and sentence. The appellant was convicted by majority verdict on the sole count of aggravated burglary contrary to s. 13(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001, following a 3 day trial commencing on 15th April, 2015, before Clonmel Circuit Court. On 23rd July, 2015, he was sentenced to a term of 12 years imprisonment with the last two years thereof suspended for a period of five years.

2

This judgment is concerned solely with the appeal against conviction.

3

The facts of the offence may be summarised as follows.

4

On the 26th September, 2013, at approximately 4:40 a.m., during the hours of darkness, two men broke into the home of James and Sarah Quigley in a remote location at Tullohea, South Lodge, Carrick-on-Suir, County Tipperary.

5

The householders were alerted by a noise from the kitchen. Mrs. Quigley woke her husband up, and he proceeded into the kitchen area of the house. Mr. Quigley gave evidence that two men, subsequently identified as the appellant and another man who had both travelled overnight from Dublin by bus, were standing in the kitchen. Upon shouting at the men to establish the reason for their presence, Mr. Quigley's evidence was to the effect that one of the men, the appellant, who was armed with some sort of adjustable spanner, had said 'get back or I'll stick this in you'.

6

At this juncture, a scuffle started in the kitchen and moved outside the house. Mr. Quigley gave evidence that the other man had an iron bar in his hand at this point. Mr. Quigley said that he held the appellant to the ground and that as he did so, the second man kicked him in the stomach and hit him several times with the iron bar on the back and arms. Mr. Quigley was only wearing his boxer shorts at the time.

7

According to Mr. Quigley's evidence at trial, as the men had overpowered him, they had first attempted to regain entry to the house and only then did they attempt to run away, but both of them fell over an unfinished wall at the front of the house.

8

Mr. Quigley followed them and, following another scuffle, managed to drag one of the men, the appellant, back. Mr. Quigley states that upon putting to him words to the effect of 'what brought you to my house', the appellant had answered 'you shouldn't be here, you work all the time, you work nights.' The appellant was detained by Mr. Quigley and his uncle, Mr. Brannigan, who had arrived with a shotgun and a dog, until gardaí arrived.

9

Garda Cuddy arrived on the scene at approximately 5:05 a.m. Mr. Popovici was cautioned and arrested at 5:12 a.m. The other man escaped but did not get too far as he fractured his leg. He managed to conceal himself. A thorough search of the area failed to locate him, but he was arrested later that evening.

10

It was established that a wrench and lock were found on an outside windowsill, and that a black rucksack containing a pair of gloves was found outside on the ground beside Mr. Popovici. The external conservatory/kitchen door was also damaged in that the brass handles were broken off, the lock had been interfered with, and the covers on the door as well as the panels around the door had also been taken off.

11

The garda investigation indicated that the appellant had travelled from Dublin to Clonmel by bus, that the bag that was with him was his, and that it only contained a pair of gloves. The appellant had also provided fingerprint and DNA samples while in custody. However, no forensic evidence linking the appellant to the inside of the house could be established.

12

At trial, the defence case was that Mr. Quigley had encountered the accused outside the house and that there had been a scuffle, but that the accused had had never been inside the house. Accordingly, the defence was run on the basis that all of the evidence in the case and the damage documented pertained to alleged events occurring outside of the house, which it was submitted was inconsistent with the prosecution case of aggravated burglary.

13

During the course of this appeal, counsel for the appellant indicated that the defence position seems to have been that if the accused was found not guilty of aggravated burglary, i.e. not to have been present within the building, a verdict of attempted burglary should have been left open to the jury.

The appeal against conviction
14

In respect of his conviction, the appellant has lodged three grounds of appeal, which are as follows:-

(i) The learned trial judge erred in law in instructing the jury in his charge that it would be perverse not to convict the appellant of attempted burglary.

(ii) The learned trial judge erred in law in summarising the prosecution case twice in his charge to the jury.

(iii) The learned...

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