DPP v Reid

JudgeJustice Hardiman
Judgment Date12 February 2004
Neutral Citation[2004] IECCA 3
Date12 February 2004
Docket Number[C.C.A. Nos. 110
CourtCourt of Criminal Appeal

[2004] IECCA 3


Hardiman J.

Lavan J.

de Valera J.

110/01 & 109/01










- [2004] 1 IR 392

The applicants sought leave to appeal against their convictions on a charge of affray contrary to s. 16 of the Criminal Justice (Public Order) Act 1994. The applicants advanced a number of grounds of appeal including that the trial judge should have withdrawn the count of affray from the jury when requested to do so by counsel for the applicants; that the convictions on the count of affray were inconsistent with the acquittals on the assault counts; and that the convictions were perverse.

Held by the Court of Criminal Appeal in treating the applications as the hearing of the appeals, allowing the appeals and quashing the convictions that there was no evidence of the first applicant using, or threatening to use, unlawful violence towards any other person, and specifically towards any member of a group of two or more people. Therefore, there was no prima facie case against the first applicant on the charge of affray. As regards the second applicant, the trial judge erred in his charge to the jury in relation to the law where there were two views open.

Reporter: L.O'S


Justice Hardiman on the 12th day of February, 2004.


Each applicant seeks leave to appeal against his conviction on a charge of affray contrary to s.16 of the Criminal Justice ( Public Order) Act, 1994.


It appears that applicants were jointly tried on this charge before the Dublin Circuit Criminal Court (His Honour Judge Lynch and a jury) between the 28 th March, 2001 and the 3 rd April, 2001. Each applicant was also charged with assault: Owen Reid was charged with assault on a peace officer, Garda Mark Dempsey, contrary to s.19 of the Criminal Justice ( Public Order) Act, 1994. Christopher Kirwan was charged with assault on a different peace officer, Garda Mark Benson, contrary to the same Section. Each of the applicants was acquitted on the charge of assaulting a peace officer.


The offences were all alleged to have occurred at Georges Place, Dublin 1 immediately beside St. George's Church which was then in use as the "Tivoli Theatre", on the 13 th December, 1999.

Grounds of appeal.

Each applicant advanced a number of grounds of appeal. It is, however, convenient to deal first with grounds which raise a number of points in common. These contentions may be summarised as being: that the learned trial judge should have withdrawn the count of affray from the jury when requested to do so by counsel for the applicants; that the convictions of the count of affray are inconsistent with the acquittals on the assault counts; that the learned trial judge ought to have instructed the jury that, if the accused were acquitted on the assault charges, there was no case against them for affray; and that the convictions were perverse.

The evidence.

The evidence disclosed that the Gardaí were called to the area of St. George's Church, where, apparently, a crowd coming out of that building had become disorderly. It appears that as a number of gardaí, including a Garda Murray, approached the disorderly group, his attention was drawn to another and separate group which had become disorderly and apparently included the accused Mr. Kirwan. A Garda Benson alleged that this group of people fighting consisted of "at least four people, definitely two, but at least four" (sic). He said that one of these was Mr. Kirwan. He said he attempted to arrest him and he violently resisted in a manner described graphically by the guard in evidence. This interaction with the guard was the basis of the charge of assault: the previous fighting alleged by the same guard was the basis of the charge of affray.


In relation to Mr. Reid, Garda Dempsey gave evidence that when he came on the scene he saw Garda Benson who was attempting to arrest a man who must, on the evidence, have been Mr. Kirwan. He says that as he went to assist him he was kicked and otherwise obstructed by Mr. Reid. This kicking and obstruction is the basis of the charge of assault against Mr. Reid. The basis for the charge of affray relates to a slightly earlier time and is based on the evidence of a Garda Murray.


Although a considerable number of witnesses were called at the trial, evidence tending to implicate the accused was identified with precision on both sides in the course of an application for a direction at the end of the prosecution evidence.

The direction application.

At the trial, counsel for each accused conceded that his client had a case to answer on the assault charge. The application related only to the charge of affray. Counsel for each accused submitted that there was no evidence against his client to establish this offence.


In reply to this application counsel for the prosecution said, in relation to Mr. Reid:-

"My Lord, in relation to Mr. Reid, there is clear evidence, in my respectful submission, that he was involved in an affray, and the evidence was given by Detective Garda Adrian Murray, who gave evidence that he became aware of a group of people fighting amongst themselves... He identified Mr. Reid as being part of the group that had been fighting, involved in the initial fight, and in those circumstances it would be my respectful submission that a jury would be quite entitled to convict him of that offence if they accept Garda Murray's evidence".


Garda Murray's evidence was to the effect that he attempted to rescue a man who was on the ground being kicked in the head by a man unknown to the guard. The man was on the ground because of a scuffle involving punches being thrown. The guard intervened specifically because he heard a sound like glass or a bottle smashing. He attempted to arrest the assailant of the man on the ground, who punched and kicked him. He had a grip on the man's assailant but eventually lost it and he and a Garda Gallagher found themselves backed against the side railings of the church with a crowd in front of them. In his direct evidence, the only mention of Mr. Reid was "I recognised one person only in the crowd and that's the defendant Owen Reid". In cross examination he said, again in his only reference to Mr. Reid, "I recognised Mr. Reid as one of the crowd of twelve that were directing their anger at myself and Garda Gallagher".


The case for the defence which was put to the guard, and later given in evidence, was that Mr. Reid was not part of the crowd in question, that he had come out of a nearby public house, seen a friend of his being attacked by members of a crowd and was attempting to pull him away when he was gratuitously and unlawfully struck with a baton.

The offence of affray.

This offence in its present form is created by s.15 of the Criminal Justice ( Public Order) Act, 1994which provides as follows:- "(1) Where -


(a) Two or more persons at any place... use or threaten to use violence towards each other, and


(b) The violence so used or threatened by one of those persons is unlawful, and


(c) The conduct of those persons taken together is such as would cause a person of reasonable firmness present at that place to fear for his or another person's safety.


Then, each such person who uses or threatens to use unlawful violence shall be guilty of the offence of affray".


The following subsection provides that a threat cannot be made by words alone.

A prima facie case of affray against Mr. Reid?

In considering this question, it must be first be noted that the assault alleged against Mr. Reid took place, on the prosecution case, after the events alleged to constitute affray, and the evidence of this...

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