DPP v O'Reilly
1990 WJSC-CCA 552
THE COURT OF CRIMINAL APPEAL
CRIMINAL JUSTICE ACT 1984 S4
AG, PEOPLE V FAGAN 1 FREWEN 375
AG, PEOPLE V MARTIN
HEALY, STATE V DONOGHUE
CONSTITUTION ART 34
AG, PEOPLE V O'DRISCOLL 1 FREWEN 351
AG, PEOPLE V CASEY
Identification - Proof - Means - Sufficiency - Witness - Elderly widow - Identity parade not held - Conviction of accused - Conviction quashed - (124/89 - Court of Criminal Appeal -
|The People v. O'Reilly|
Accused - Proof - Sufficiency - Jury trial - Judge's directions - Adequacy - Failure to hold identification parade - Theft of money from elderly witness - Photograph of accused shown to witness - (124/89 - Court of Criminal Appeal -
|The People v. O'Reilly|
Identification - Proof - Means - Identity parade - Necessity - Elderly witness - Trial judge - Direction to jury insufficient - (124/90 - Court of Criminal Appeal -
|The People v. O'Reilly|
Directions - Adequacy - Accused - Guilt - Substantial issue - Identification of accused - Means - Elderly witness - Identity parade not held - (124/89 - Court of Criminal Appeal - 26/4/90)
|The People v. O'Reilly|
JUDGMENT OF THE COURT delivered on the 26th April 1990 by O'FLAHERTY J.
On the 30th November, 1989, the applicant, Patrick O'Reilly, was convicted before His Honour Judge Deery and a jury at Mullingar Circuit Court of the offence of larceny of £850 belonging to Mrs. Mary Farrell, Kilkenny West, The Pigeons, Athlone. The applicant was sentenced to four years penal servitude by the learned trial judge and he now appeals against both conviction and sentence on the grounds, in relation to conviction:-
1. That the learned trial judge erred in admitting the identification evidence of the witness Mary Farrell notwithstanding there was no application made to exclude such evidence.
2. That the learned trial judge erred in failing to adequately warn the jury of the dangers of convicting the accused on the identification evidence of Mary Farrell.
3. That, in the premises, the conviction was wrong.
The facts of the case are as follows. Mrs. Farrell, a widow aged 81 years, was alone in her house at Kilkenny West, The Pigeons near Athlone on the 30th November, 1988. She was in her front garden plucking some chrysanthemums when two men appeared on the scene; one offered to do a painting job for her which she refused and he then asked for a drink of water. He had come out of a red car which had pulled up at Mrs. Farrell's gateway. While she was providing this man with a drink of water another man came into her house and he had a big bedspread around his head and, as Mrs. Farrell described him he had "a most notorious face, an awful face" and Mrs. Farrell thought that he was insane or an idiot or something. She said that she got "a most dangerous fright" and that he burst through and "banged" this old quilt about for about ten minutes or so when she said to him "I can't stay here all day, I have some little jobs to do" and the first man (who had offered to do the painting) was looking in and keeping an eye and he said at one stage "I think I hear a car".
The man with the blanket offered to sell it to her for £50 and Mrs. Farrell described him in evidence as "a stout butt of a fair haired man". She could not describe his exact height but thought that he was small. Neither could she describe his age as she said she was very bad for describing ages. This all happened at about 3.30 p.m. and, in evidence, Mrs. Farrell recounted that a short time later, about 4.00 p.m. she discovered the money, £850 or thereabouts, was missing. In the statement that she made to a garda later that evening she seemed to think that the time she noticed her money was missing was at about 6.30 p.m. It had been kept in a tea canister which, in turn, was kept in a biscuit tin. This was in a room off the main living-room.
The gardai ascertained that the applicant had bought a red Ford Sierra Saloon car from a garage in Newbridge, Co. Kildare, some time previously and, it will be recalled, that Mrs. Farrell had noticed a red car outside her house on the day in question. Suspicion centred on the applicant and he was detained under s. 4 of the Criminal Justice Act, 1984.
It was decided by the gardai that an attempt should be made to find out whether Mrs. Farrell could identify one of the persons who had been in her house and stolen her money on the 30th November, 1988. To that end it was arranged that Garda Coen and Garda Garvey would bring Mrs. Farrell to Edgeworthstown, Co. Longford, so that she might have an opportunity of observing people in the main street in Edgeworthstown and to ascertain whether she could identify anyone as being one of the persons who had been in her house on that de
So on the 26th January, 1989, at about 10.30 a.m. Mrs. Farrell was brought to Edgeworthstown in a garda car. She was seated in the front passenger seat with Garda Coen in the driver's seat and Garda Garvey in the back seat. At about 11.00 a.m. after Mrs. Farrell had an opportunity of seeing about twenty or thirty people passing by there approached a group three in front (two women and a man) and two men behind and she said to Garda Coen: "I think that's him there" and when asked by Garda Coen if she was sure she said "I didn't get a good look at him." Garda Coen and Mrs. Farrell remained in the car with Garda Garvey outside and at about 12.05 evidence was given that about four people emerged from a building (in fact it was the courthouse) and Mrs. Farrell said to Garda Coen "that's him, that's him", "the fellow with the ugly face". She pointed out the applicant as being the person with the blanket who had been in her house on 30th November, 1988.
Counsel for the accused cross-examined Garda Coen as to why no identification parade had been held. He said that he was twenty three years in the guards and that he was eight or nine years in the plain clothes division. He said that he had never held an identification parade because he never had occasion to do so. It will be recalled that at the first "partial identification" the leading group consisted of two women and a man but Garda Coen in his evidence said that this group consisted of two men and a woman; on cross-examination he changed back to what had been contained in his original statement. He was not able to give any details as regards the other two men who were in the group (aside from Mr. O'Reilly) in relation to the first "partial identification". The upshot of this evidence was that the gardai were not in a position to give any description of what the other people passing up and down on the street on that day looked like. It was put to Garda Coen that if there had been a formal identification parade that certain details would have been noted such as the number of people present, their ages, descriptions, their height and so forth. None of these matters were noted in respect of the informal identification that was attempted in the circumstances of this case.
When it was put to Garda Coen that he should have held an official formal parade he said :-
"Well to me, my lord, it is far more beneficial to the defendant. If a person holds an official ID parade you bring a person into a room with a number of people in the room, they are expecting to see that person there. If you bring a person on to a street, I didn't know when I went to Edgeworthstown how many people would be passing that street, there could be ten, twenty, forty or a hundred, and it is much more difficult to pick out a person walking the street than it is and it is a much more fairer way, to me, than having an official ID parade."
Mrs. Farrell, in the course of her evidence, also recounted the events in Edgeworthstown and also identified the accused man in Court. Under cross-examination certain discrepancies between what she had said in her original statement to the Gardai on the 30th November, 1988, and what she said in Court were explored but since no point has been made on these possible discrepancies at the hearing of the appeal the Court would propose to say no more about them. Mrs. Farrell agreed that she had only a few minutes in which to observe the man who had been in her house. She agreed and, indeed, it was corroborated by the garda who went to her house on the evening of the incident that she was very upset but she was very definite in her identification in Court that the accused was the man and that she was not mistaken in her identity of the accused.
It can be stated that the...
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