DPP v Power

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date24 April 2018
Neutral Citation[2018] IECA 119
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: 150/2014
Date24 April 2018

[2018] IECA 119

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Edwards J.

Hedigan J.

Record No: 150/2014

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
MAURICE POWER
Appellant

Conviction – Murder – Evidence – Appellant seeking to appeal against conviction – Whether trial judge erred in allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased

Facts: The appellant, Mr Power, appeared before the Central Criminal Court on the 28th of April 2014 and pleaded not guilty to a single count of murder contrary to common law, the particulars of the offence being that the appellant did, on the 17th of October 2012, in the County of Tipperary, murder Mr Rossiter. The matter proceeded to trial and on the 5th of June 2014 an eleven person jury, by a majority of ten to one, found the appellant guilty of the murder. The appellant was sentenced on the same date to life imprisonment backdated to the 11th of December 2012. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in: (i) allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased; (ii) allowing witness Ms Cahill to refresh her memory in respect of the registration details of a motor vehicle; (iii) ruling that the memorandum of an interview with the appellant on the 18th October 2012 was admissible; (iv) ruling that the memoranda of interviews with the appellant during his detention from the 11th to the 15th December 2012 were admissible; (v) allowing the prosecution to adduce as an item of real evidence the vehicle registration document of a motor vehicle bearing registration 01-D-12430; (vi) allowing the prosecution to adduce as an item of real evidence data extracted from a mobile telephone device and SIM card alleged to have belonged to the deceased; (vii) ruling that independent evidence which supported the reliability of assertions made by the appellant in interview could amount to corroboration of his confession; (viii) failing to properly explain corroboration to the jury, it being a term of art, and further failing to distinguish corroboration as regards the reliability of the content of the memoranda of interview versus corroboration as regards the actual commission of the offences; (ix) refusing to discharge the jury in circumstances where the jury was directed with unnecessary force and repetition that suggestions made by counsel did not amount to evidence; (x) directing the jury that the rights of society are balanced by the rights of an accused person without specifying that, if there is a conflict, the latter should take precedence; (xi) directing the jury that, where evidence was not in dispute, it had effectively been proved; (xii) implicitly indicating to the jury that the evidence of witnesses tendered by the prosecution carried less weight than that of witnesses directly-examined by the prosecution; (xiii) failing expressly to direct the jury that the only evidence connecting the appellant to the alleged offence was his purported confession; (xiv) failing to expressly to direct the jury that one of the main justifications for ensuring compliance with the Garda Custody Regulations was to prevent impropriety on the part of the Gardaí; (xv) failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí; (xvi) refusing to direct the jury that having a reasonable doubt about the propriety of the Garda conduct would demand an acquittal; (xvii) allowing the jury, during the course of deliberating, to view CCTV footage in open Court in the presence of the appellant.

Held by the Court that the appellant’s conviction was safe and that his trial was satisfactory. The Court would not uphold any of the appellant’s seventeen grounds of appeal.

The Court held that it would dismiss the appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered 24th of April, 2018 by Mr. Justice Edwards .
Introduction
1

The appellant appeared before the Central Criminal Court on the 28th of April 2014 and pleaded not guilty to a single count of murder contrary to common law; the particulars of the offence being that the appellant did, on the 17th day of October, 2012, in the County of Tipperary murder one Shane Rossiter.

2

The matter proceeded to trial and on the 5th of June 2014 an eleven person jury, by a majority of ten to one, found the appellant guilty of the murder of Shane Rossiter. The appellant was sentenced on the same date to life imprisonment backdated to the 11th of December 2012.

3

The appellant now appeals against his conviction.

Evidence relevant to this appeal
4

The deceased, Mr. Shane Rossiter, was born on the 13th of February 1983 and was 29 when he was killed. On the 17th of October 2012 there was a house party at 3 Church Lane, Golden, Co. Tipperary involving a small group of people including the deceased. During the house party there was a degree of illicit drug use. The individuals present included a Mr. Paul McCarthy, a Ms. Siobhan Murphy, a Mr. Andrew Heaphy and the deceased man, Mr Shane Rossiter.

5

In the early hours of the morning of the 17th of October, the deceased man and Mr. Paul McCarthy went out the front door of the premises in the belief that the appellant would be there to deliver cannabis to them. Mr. McCarthy told the jury that ‘I walked out of the house, there was a car parked there, and I seen a gun and I ran.’ Pressed on what exactly he saw, he said: ‘A car parked there, two fellows sitting in the car and a gun came out the window and I ran’ He said the car was ‘just a footpath away’ from the house. He couldn't say what colour the car was, other than to say it was dark. He couldn't say if the gun had come out through the driver's window or the passenger's window. However it had come out through a front window. He just saw the barrel of the gun. He had run, believing he was a target, and having crossed a field ended up in a graveyard. He heard one gunshot, and on hearing it he rang the emergency services.

6

The jury heard evidence that the deceased was in fact shot twice with a shotgun. Gardaí arrived on the scene and commenced an investigation. The following day, Thursday the 18th of October 2012, a burned out Audi A4 with the registration number 01-D-12430 was discovered at a bog in the Nire Valley, County Waterford. This was suspected to have been the car used in the shooting.

7

The appellant was identified as a person of interest at an early stage of the investigation. The appellant's partner was Pamela Cahill, who was known to drive an Audi A4. The jury heard that an Audi A4, driven by a man believed to be the appellant, was captured on CCTV at a Tesco petrol station at approximately 6.30pm on the 16th of October 2012, which was about 12 hours before the murder. The jury was shown the relevant CCTV footage.

8

On the 18th of October 2012 the appellant attended Clonmel Garda station voluntarily along with his solicitor and made a statement. On the 11th of December 2012 the appellant was arrested in connection with the murder of Mr. Shane Rossiter and was detained from the 11th of December to the 15th of December 2012 at Clonmel Garda Station, where he was interviewed a number of times. In the course of being interviewed he confessed to having killed the deceased.

9

The jury also heard there was a history of violence between the appellant and the deceased, the appellant having stabbed the deceased seven years before. Upon his recent return to this jurisdiction after several years in Australia, the appellant became fearful that the deceased would exact retribution. He said in one his interviews that he believed that it was, for him, a case of ‘kill or be killed.’

Grounds of Appeal
10

There are 17 Grounds of Appeal listed in the Notice of Appeal. They are as follows:

(i) The trial judge erred in allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased.

(ii) The trial judge erred in allowing witness Pamela Cahill to refresh her memory in respect of the registration details of a motor vehicle.

(iii) The trial judge erred in ruling that the memorandum of an interview with the appellant on the 18th October 2012 was admissible.

(iv) The trial judge erred in ruling that the memoranda of interviews with the appellant during his detention from the 11th to the 15th December 2012 were admissible.

(v) The trial judge erred in allowing the prosecution to adduce as an item of real evidence the vehicle registration document of a motor vehicle bearing registration 01-D-12430.

(vi) The trial judge erred in allowing the prosecution to adduce as an item of real evidence data extracted from a mobile telephone device and SIM card alleged to have belonged to the deceased.

(vii) The trial judge erred in ruling that independent evidence which supported the reliability of assertions made by the appellant in interview could amount to corroboration of his confession.

(viii) The trial judge erred in failing to properly explain corroboration to the jury, it being a term of art, and further failing to distinguish corroboration as regards the reliability of the content of the memoranda of interview versus corroboration as regards the actual commission of the offences. The trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration.

(ix) The trial judge erred in refusing to discharge the jury in circumstances where the jury was directed with unnecessary force and repetition that suggestions made by counsel did not amount to evidence.

(x) The trial judge erred in directing the jury that the rights of society are...

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2 cases
  • DPP v Power
    • Ireland
    • Supreme Court
    • 3 April 2020
    ...Mr Power, appealed to the Supreme Court against the decision of the Court of Appeal upholding the appellant’s conviction for murder: [2018] IECA 119. The issues in the appeal were grouped under three headings. The first substantive heading concerned the challenge to the lawfulness of an ext......
  • DPP v Power
    • Ireland
    • Supreme Court
    • 28 May 2019
    ...WAS MADE ON 30 th November, 2018 AND WAS IN TIME. 1 This determination concerns a decision of the Court of Appeal made on 24 April 2018; [2018] IECA 119 in an appeal from a conviction of murder of Maurice Power, the accused, before the Central Criminal Court on 5 June 2014. The Court of App......

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