DPP v Power

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 08 March 2019
• Neutral Citation: [2019] IECA 74
• Docket Number: Record Number: 236/2017
• Court: Court of Appeal (Ireland)
• Date: 08 March 2019

[2019] IECA 74

THE COURT OF APPEAL

McCarthy J.

Birmingham P.

Edwards J.

McCarthy J.

Record Number: 236/2017

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

MICHAEL POWER

APPELLANT

Conviction – Assault causing serious harm – Prejudicial evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in admitting prejudicial evidence before the jury

Facts: The appellant, Mr Power, appealed to the Court of Appeal against his conviction on the 19th July 2017 of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against The Person Act 1997 on one Mr Hanrahan on the 27th June 2015 on Cope Street, Dublin 2, a charge of assault on him contrary to s. 3 of the same Act on the same date at Anglesea Street, Dublin 2, together with an offence of production of a knife in the course of a dispute contrary to s. 11 of the Firearms and Offensive Weapons Act 1990, in the course of the events referred to above. After conviction the appellant was sentenced to ten years’ imprisonment, the final eighteen months of which were suspended for a period of two years on certain conditions. The appellant appealed on the following grounds in that the trial judge erred: 1) in law by permitting identification evidence of the appellant by Gardaí; 2) in admitting prejudicial evidence before the jury (evidence of fear of Mr Hanrahan); and 3) in admitting dock identification before the jury (evidence of identification in court).

Held by the Court that the trial judge correctly applied the applicable principles as set out by Mahon J in DPP v Coughlan Ryan [2017] IECA 108 and that any prejudicial effect was dissipated by the manner in which the judge dealt with it.

The Court held that it accordingly rejected all grounds of appeal and would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 8th day of March 2019 by Mr. Justice McCarthy

1 This is an appeal against the conviction of the appellant on the 19th July 2017 of assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against The Person Act, 1997 on one Thomas Hanrahan on June 27 2015 on Cope Street, Dublin 2, a charge of assault on him contrary to s.3 of the same Act on the same date at Anglesea Street, Dublin 2, together with an offence of production of a knife in the course of a dispute contrary to s.11 of the Firearms and Offensive Weapons Act, 1990, in the course of the events referred to above. After conviction the accused was sentenced to ten years” imprisonment, the final eighteen months of which were suspended for a period of two years on certain conditions.

2 It was not in debate at the trial that Mr. Hanrahan was the subject of an attack with a knife which gave rise to very serious injuries and necessitating a splenectomy, and a second though somewhat less significant assault effectively in the course of the same series of events. The substantive issue at the trial was the identification of the accused as the assailant and to that end it was sought to adduce evidence of identification of the accused by members of An Garda Síochána from certain CCTV footage harvested by the Gardaí from premises in the immediate area of the offences. Apart from identification of the accused, it was sought also to put into evidence identification of one John Power purportedly seen in his company on CCTV. This is because the injured party had identified the latter as one of his assailants – he did not purport to identify the appellant.

3 No dispute arose as to the origin of the CCTV footage or its reliability, per se, as showing the areas in question at the relevant times. The material was obtained from a certain Tesco supermarket and a premises called Club M on Fleet Street and Cope Street respectively. Objection was taken to receipt of the evidence.

4 The core evidence of identification was provided by Gardaí Sarah Smith, Brian Concannon and Peter Bernard, though, the prosecution did not call on Garda Bernard.

Garda Smith was attached to Blanchardstown garda station between December 2012 and April 2015 in what was described as a task force unit. She engaged in daily patrols and knew the residents. She said she knew him ‘from meeting him on a regular basis in the area, stopping and talking to him and his friends in the area’ on ‘a regular basis’ (sometimes two or three times a day). She would have spoken to many others in the community and stopped them when in the area. It was her responsibility to become acquainted with as many people as possible who lived in the area. She had formally worked as a community guard officer and she stressed the importance of this. She said that those to whom she spoke or stopped were not ‘persons of interest’ to the Gardaí but were ‘just persons that were in the community and that we would have stopped to speak to’. She was pressed as to the frequency of her meetings. She did not know John Power as well, it means, and gave no evidence of identifying him. She was pressed as to the accuracy of her identification by reference to the CCTV footage.

5 Garda Concannon knew Michael Power from ‘stopping and speaking to him on a regular basis as a guard based in Blanchardstown garda station, ‘I have known him over a vast number of years’ and when asked to elaborate he said ‘ as part of my daily patrols I would stop and speak to people, members of the public on a constant basis, just talking to them and such and speaking to them about any kind of subject that we speak about. I would have stopped and spoken to Michael Power on a number of occasions throughout the years’. This apparently extended to detaining him for a search under the Misuse of Drugs Acts and was described as John Power's case manager (who might be under suspicion of criminal conduct or found to be engaged in it – John Power has seventy-five previous convictions). He had met Michael Power a number of years before and did so on a regular basis to ‘kind of stop and speak to kind of thing’ – he never had any involvement with him in relation to criminal activity.

6 In written submissions, and it appears from consideration of the transcript, it was, and is now, submitted that that identification evidence was inherently prejudicial to the accused and that such prejudice outweighed its probative value. The implication was that the accused was someone with previous convictions who had served time in prison and was known to the gardaí (something, of course, which was not mentioned either on the voir dire or during the trial); the objection was further grounded on the proposition that since the injured party had identified John Power as one of his attackers to show him in the company of the appellant some minutes before the attack created an association between John and Michael Power which was prejudicial to the accused (a prejudice, one assumes, which was contended extended any probative value). At the appeal hearing, counsel for the appellant went on to say that the evidence of Gardaí ‘regularly’ meeting the appellant in the course of their duties gave rise to an implication of a criminal/offending context. It was submitted also that counsel would be significantly constrained as to how he could cross examine gardaí as to the accuracy of their recognition evidence since the answers would inevitably stray into issues which show that John Power (at least) had previous convictions and where Garda Concannon was described as his garda case manager. In oral submissions, counsel for the respondent stated that nothing in the evidence gave rise to a conflict with the principles set out in DPP v Larkin [2009] 2 I.R 381; two members of the Gardaí provided identification evidence in an innocuous manner in which no criminal context was suggested.

7 In ruling upon the objection to receipt of the evidence, the learned trial judge said this:-

‘All prosecution evidence is by definition prejudicial and the Court will always seek to strike a balance between those two competing interests as it has done here. In this incidence, in the circumstances of this particular case it is the Court's view that the probative value far outweighs the prejudicial effect. And in particular the Court has had regard to Kearns J where it says, ‘If identification evidence is available from police officers and the same can be given in circumstances where the probative value of the evidence outweighs the prejudicial effect the Court sees no reason why such evidence should not be given. It is difficult to conceive of a greater affront to the community's interest in the prosecution of crime than to deny to the prosecution the opportunity of calling such evidence, all the more so in modern social conditions.’ [Transcript, Day 3, Page 38].

8 One Detective Sergeant Kavanagh gave evidence as to the fact that Mr. Hanrahan had made a statement which was read pursuant to s.16 of the Criminal Justice Act, 2006. Evidence was lead as to the circumstances in which this was done. Having referred to his visit to St. James” Hospital, where the statement was taken, he said, when asked about Mr. Hanrahan's demeanour, that he was ‘in complete fear. He was terrified. He was concerned that when he got out of the hospital he had no place to go’ and, that ‘ his life would be at risk, that he would be killed and we had those real concerns at the time.’ Detective Sergeant Kavanagh went on to say the Mr. Hanrahan ‘didn't want to stay in the city at all. He didn't want people knowing where he was and he didn't want the Donovan and Power family knowing where he was and he was concerned for his own family’ and, further, that the Gardaí ‘needed to put a plan in place to protect this man's life’.

9 It was submitted at the trial that this evidence conveyed the suggestion that there was an ongoing threat to Mr. Hanrahan not only from the accused but from his entire family and that this was...