DPP v O'Reilly

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date20 March 2017
Neutral Citation[2017] IECA 89
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: 190/2013
Date20 March 2017

[2017] IECA 89

THE COURT OF APPEAL

Edwards J.

Sheehan J.

Mahon J.

Edwards J.

Record No: 190/2013

Between
The People at the suit of the Director of Public Prosecutions
Respondent
V
Stephen O'Reilly
Appellant

Conviction – Causing serious harm – Jury warning – Appellant seeking to appeal against conviction – Whether trial was unsatisfactory and the verdicts were unsafe having regard to the refusal by the trial judge to recharge the jury on foot of requisitions made to him by prosecuting counsel inter alia as to the appropriate warning to the jury in respect of the evidence of a person who might be regarded as an accomplice

Facts: The appellant, Mr O’Reilly, on 8th July, 2013, was convicted by the unanimous verdicts of a jury in the Dublin Central Criminal Court of two offences, namely causing serious harm contrary to s. 4 of the Non Fatal Offences against the Person Act 1997 (count 1), and production, in a manner likely unlawfully to intimidate another person, of an article capable of inflicting serious injury, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 (count 2). The appellant was subsequently sentenced to 12 years’ imprisonment on count 1 to date from 23rd February, 2012, with the final 3 years of the said 12 year sentence suspended upon conditions. Count 2 was taken into consideration. The appellant appealed to the Court of Appeal against his conviction on the following grounds: 1) The trial was unsatisfactory and the verdicts were unsafe having regard to the refusal by the trial judge to recharge the jury on foot of requisitions made to him by prosecuting counsel inter alia as to the appropriate warning to the jury in respect of the evidence of a person who might be regarded as an accomplice; 2) The trial was unsatisfactory and the verdicts were unsafe having regard to the manner in which the trial judge recharged the jury in respect of the definition of serious harm including in circumstances where the prosecution evidence was to the effect that the injury itself (as opposed to the action of stabbing) had not caused a risk to the life of the complainant.

Held by the Court that even if the 1997 Act was given the narrower interpretation contended for by the appellant, there was evidence in the case capable of satisfying the definition of serious harm. The Court held that the trial judge was entirely correct to allow the matter to go to the jury. The Court held that the trial judge was also entirely correct to draw the jury’s attention to the entirety of the medical evidence. The Court found no error in the matter in which he charged the jury.

The Court held that the appeal against conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on 20th March 2017 by Mr. Justice Edwards .
Introduction
1

On 8th July, 2013 the appellant was convicted by the unanimous verdicts of a jury in the Dublin Central Criminal Court of two offences, namely causing serious harm contrary to s. 4 of the Non Fatal Offences against the Person Act, 1997 (‘the Act of 1997’) (Count No. 1); and production, in a manner likely unlawfully to intimidate another person, of an article capable of inflicting serious injury, contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990 (Count No. 2).

2

The appellant was subsequently sentenced to 12 years' imprisonment on Count No. 1 to date from 23rd February, 2012 with the final 3 years of the said 12 year sentence suspended upon conditions. Count No. 2 was taken into consideration.

3

The appellant now appeals against his conviction and also against the severity of his sentence. This judgment deals solely with the appeal against conviction.

Summary of the evidence before the jury
4

The injured party was a Mr. Stephen O'Brien. The case involved the very serious stabbing of Mr. O'Brien on the evening of the 16th of August 2011 in the course of which Mr. O'Brien sustained significant injuries including a penetrating injury to the chest, in which the membrane of his lung was burst by the blade of the knife which then continued into and penetrated his lung, thereby causing some internal bleeding and also causing Mr. O'Brien to suffer a pneumothorax, the latter of which required to be treated surgically by the insertion of a chest drain in order to facilitate the re-inflation of Mr. O'Brien's collapsed lung.

5

The primary evidence concerning who perpetrated the stabbing came from the injured party himself, who claimed to recognise his assailants as being the appellant, and Gerard (‘Ger’) Keogh. The jury also heard evidence from Mr. Keogh, who on the injured party's account had acted as an accomplice to the appellant, but who denied that that was the case. Mr. Keogh confirmed that the injured party had been stabbed by the appellant and sought to place all the blame on the appellant.

6

In the course of his evidence Mr. O'Brien told the jury that he was living at 2A Montrose Court in Artane on 16th August, 2011. On that day he had collected his social welfare payment. Later he was at home alone when two people came to his flat and they were his friend Ger Keogh, and the appellant Stephen O'Reilly. He said that he knew Stephen O'Reilly both by the names Chisler and Stephen. When asked what happened next he said:

‘A. Well, within a flash he took my eye out, he took a large scar across me he took my whole forehead off.

Q. With what?

A. A knife, an apex knife, and stabbed me a couple of times in the back.

Q. And what conversation, if any, did you have with him?

A. None, it just happened.

Q. And where were you when he stabbed you

A. ‘Give us, give us your bank card’, I was asked.

Q. Sorry, where were you when he stabbed you?

A. About two foot away from the door, the front door.

Q. I see. Now, what did you say about the bank card?

A. Oh they asked for my bank card and

Q. Who asked you for the bank card?

A. I'm not sure which one, I think it was Chisler.

Q. What did you do?

A. I actually gave it to him, I didn't want to be stabbed again, you know, and gave him my PIN number and he disappeared.’

7

Mr. O'Brien further gave evidence that €180 was later taken from his bank account. He claimed that as he lay bleeding Mr. Keogh had stood watch over him armed with a knife, awaiting the return of the appellant. He said that when Chisler came back the two of them ‘sat on the end of the bed and having a big smile between each other and one said to me, “Do you want your balls chopped off?” I said, “No”, and he says, “Do you want your ears chopped off?” I says, “No”, and then they left’.

8

Mr. O'Brien to the jury that after his assailants had left he sought assistance from his neighbours, that an ambulance was called and that he was taken to hospital.

9

The jury further heard from a Mr. Paul Burke who placed Mr. Keogh and the appellant in each other's company near the locus of the offence. They also heard evidence from a paramedic who had brought Mr. O'Brien to hospital, having assessed Mr. O'Brien's injuries as being life threatening. The jury further heard evidence from the nurse who treated Mr. O'Brien on his arrival at hospital and evidence from Prof. Broe, the surgeon who inserted a drain to re-inflate Mr. O'Brien's collapsed lung.

10

In the course of the Garda investigation into the attack the appellant was arrested and interviewed. In the course of being interviewed the appellant denied knowing Mr. O'Brien. When it was put to him that Mr. O'Brien's phone number had been found on his phone under the name ‘Stephen O'B’ he relented and agreed that he knew Mr. O'Brien. The prosecution adduced evidence before the jury in support of their case concerning his initial lie when he claimed that he did not know Mr. O'Brien.

The grounds of appeal
11

The appellant initially sought to appeal against his conviction on nine discrete grounds as set out in his notice of appeal. However, at the oral hearing before this Court counsel for the appellant indicated that the appeal would in fact be confined to 2 grounds. These were Grounds 7 and 8 in the original notice of appeal and were in the following terms:-

‘7. The trial was unsatisfactory and the verdicts are unsafe having regard to the refusal by the trial judge to recharge the jury on foot of requisitions made to him by prosecuting counsel inter alia as to the appropriate warning to the jury in respect of the evidence of a person who might be regarded as an accomplice.

8. The trial was unsatisfactory and the verdicts are unsafe having regard to the manner in which the trial judge recharged the jury in respect of the definition of serious harm including in circumstances where the prosecution evidence was to the effect that the injury itself (as opposed to the action of stabbing) had not caused a risk to the life of the complainant; the jury asked a question on the matter; and counsel repeatedly requisitioned in respect of same.’

The alleged inadequacy of the accomplice warning
12

In the course of charging the jury, the trial judge told them:

‘In respect of Mr. Keogh's evidence, a further matter of law has been referred to and I will deal with it, he is potentially an accomplice, it has been established through questioning by Mr. O Lideadha that he himself asserts he did nothing wrong. He was there, but he did not engage in any robbery, he did nothing wrong and did not assault and was not involved in the criminality, so to speak. He was arrested, he was not charged and he is not likely to be charged at this juncture, but he comes with the assailant, he knocks on the door and immediately behind him the assailant enters. He sits on the bed, on one account of it, with the assailant afterwards and smokes with him and he leaves with him. I think those facts, if you accept that they are established to your satisfaction, would give you a fair basis of believing, and it is open to...

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1 cases
  • DPP v Fitzgerald
    • Ireland
    • Supreme Court
    • 29 Noviembre 2018
    ...is minimised, then, consequently, the involvement of some other participant is likely to be exaggerated. See for example DPP v O'Reilly [2017] IECA 89. It may also be that, given the nature of the exercise, those planning crime meet in secret and operate through concealment, an accomplice ......

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