DPP v Rattigan

JudgeO'Donnell J.,O’Donnell J., Moriarty J., Hanna J.,O’Donnell J.
Judgment Date19 February 2013
Neutral Citation[2013] IECCA 3,[2013] IECCA 13
Date19 February 2013
Docket Number[C.C.A. No. 12 of 2010],CCA No. 12/2010
CourtCourt of Criminal Appeal
The People at the Suit of the Director of Public Prosecutions
Brian Rattigan

[2013] IECCA 13

CCA No. 12/2010


Criminal law – Constitutional law – Leave to appeal – Evidence – Murder conviction – Exception to hearsay rule – Admissibility of witness statements – Delay – Statutory interpretation – Retrospective legislation – Whether applicant received fair trial – While comments of trial judge unfair – Whether legislation intended to have retrospective effect – Criminal Justice Act, 2006.

Fact The applicant was convicted of murder by majority verdict. Various delays had taken place before the applicant was brought to delay including judicial review proceedings commenced by the applicant. The applicant sought to bring a notice of appeal against his conviction. In particular the applicant sought to challenge the use of section 16 of the Criminal Justice Act 2006 in his trial which applied when a witness refused to give evidence or gave evidence materially inconsistent with previously given witness statements. It was contended that in allowing the use of this provision, legislation was being applied retrospectively to his case and this was unconstitutional. In addition the applicant sought to raise issues relating to the trial judge’s summation of the issues and his concluding comments in his charge to the jury.

Held by the Court (O’Donnell J delivering judgment) in dismissing the application. The changes that had been brought about by section 16 of the 2006 Act were procedural and evidential in nature. There was no fundamental unfairness either by reference to constitutional law or to the common law presumptions of statutory interpretation in allowing these statements to be admitted into evidence. In so much as the change regarding the rules of evidence had retrospective effect such a change, while essentially procedural and evidential, was in any event a consequence of the clear language of the Act and no other interpretation of the section was plausible. No authority has been cited for the suggestion that the trial judge was permitted to do no more than recite the contentions made in closing speeches by the prosecution and the defence. The trial judge had dealt with an extremely difficult trial in a professional and practical way that was obviously fair.

O’Donnell J., Moriarty J., Hanna J. O’Donnell J.
Judgment of the Court delivered on the 19th of February, 2013, by O’Donnell J.

On the 17th December 2009 after a trial lasting 20 days the Applicant herein Brian Rattigan, was convicted by majority verdict of the murder of Declan Gavin, in the early morning of the 25th of August 2001 at Crumlin Road, Dublin 12.


The history of this case, like the trial itself, is long and tortuous. The applicant was first charged in September 2003. However the charge was struck out because of a delay in serving the book of evidence. It was March 2005 before he was rearrested and served with the book of evidence and returned for trial. Judicial review proceedings were then commenced seeking to have the trial prohibited on grounds of delay and prejudice. Ultimately however, those reliefs were refused by a decision of the Supreme Court in May 2008, which placed particular emphasis on the fact that the applicant’s hand print was found at the crime scene, for which no explanation had been proffered. A trial commenced in early 2009 which resulted in a disagreement. A second trial was commenced in November of that year which resulted in the conviction the subject matter of this appeal.


The trial was both difficult and contentious. It was punctuated by applications for orders to compel the attendance of witnesses who did not attend in response to subpoena, and consequent applications for committal for contempt of court. Still other witnesses, though attending the trial, either refused to testify, or to testify in accordance with their statements, and a number of applications and legal arguments ensued. However by the close of the evidence (which in effect meant the prosecution case, since the defence did not go into evidence), a picture had emerged which allows the issues in this appeal to be understood.


In the early morning of Saturday the 25th of August, there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan Micra car. The car was described variously as grey, gold, or “that imported beige colour”. It was recognised as a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant described by the witnesses as the “knife man”. The door of the Abrakebabra was closed by the security guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described as “a blood like substance”, was found on the window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also identified as that of Brian Rattigan.


Brian Rattigan was arrested the following week, and interviewed by the gardaí. A number of the interviews were recorded in writing, which the accused refused to sign. Evidence of the content of the interviews was given at the trial subject to some editing by agreement between the parties and further to directions given by the trial judge. In those interviews Brian Rattigan was truculent, evasive and maintained that he had not been near Crumlin Shopping Centre for a considerable time. When asked where he was on the Friday night and Saturday morning of the 24th and 25th of August he replied, “I can’t remember where I was, but I wasn’t near that place”. He added that he had not been there for months, probably four months. He said he could not remember where he was that night. When asked whether he was at home at his brother Joey’s birthday party (as had been suggested by another witness), he replied that he couldn’t remember where he was. At one point he said he was “riding a married woman. Her fella is away. I was with her. I won’t tell ye who she is”. This somewhat incongruous piece of chivalry was expressed in coarse terms and more importantly was completely lacking in any supporting detail. When it was put to him that his sister had said that he was at the party he replied “I was there but I never left the place all night”. He was asked did he know Joey Redmond. He replied that he was his brother Joey’s “best mate” and that “he was always in my gaff.” On another occasion however he said he barely knew Joey Redmond. When asked “Can you tell us the truth” he replied “I won’t admit, youse prove it, that’s your job.” He was asked if he had been in a car Nissan Micra 93 D 38843 with Shane Maloney and Joey Redmond on the morning of the 25th of August 2001 and replied that he couldn’t remember. In other interviews he repeated in crude terms his claim to have been having an affair with a married woman and when asked whether he was with his lady friend on the night Declan Gavin was stabbed he replied, “no that’s not what I said”.


It was established in evidence that the entire glass window in Abrakebabra had been replaced only the previous week, on the 16th of August 2001, and it was regularly washed three times a week, and therefore was probably washed as recently as the Wednesday before the stabbing. Further evidence was given that a gold/beige Nissan Micra was found burning in the Cookstown Industrial Estate at 9:15 am on the morning of the 25th of August, shortly after the stabbing. Previously on the 20th of August, Garda O’Shaughnessy had stopped this car, then being driven by Shane Maloney and containing Joey Rattigan, the brother of the accused, both associates of Brian Rattigan, and to whom reference had been made in the evidence.


Eighteen grounds of appeal were set out in the notice of appeal but on the hearing of this appeal counsel focused on three principal grounds. First, an argument that section 16 of the Criminal Justice Act 2006 which permits the use in evidence of witness statements was not applicable, in this case. Second, a related argument that even if the section were applicable, it ought not to be applied in the particular facts of this case, and third, a challenge to the concluding comments of the trial judge in his charge to the jury.

Section 16, Criminal Justice Act 2006


Section 16 of the Criminal Justice Act 2006 permits witness statements to be admitted as evidence at a trial in certain circumstances, normally where a witness while available for cross-examination, refuses to give evidence or denies making the statement or gives evidence which is materially inconsistent with it. The section provides as follows:

“16 (1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for...

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