DPP v Reilly

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 06 February 2015
• Neutral Citation: [2015] IECA 53
• Docket Number: 152/13
• Court: Court of Appeal (Ireland)
• Date: 06 February 2015

[2015] IECA 53

THE COURT OF APPEAL

The President Birmingham J.

Sheehan J.

152/13

The People at the Suit of the Director of Public Prosecutions

and

Martin Reilly

Appellant

Burglary – Appeal against conviction and sentence – Disclosure – Appellant seeking to appeal against conviction and sentence – Whether prosecution failed to make full disclosure

Facts: The appellant, Mr Reilly, was convicted in May, 2013, of the offence of burglary and he was subsequently sentenced to eight years imprisonment with the final two years suspended. The burglary in question occurred at a private residence on Cashel Road in Clonmel in June, 2011, where the sum of €30,000 and St £3,745 was taken. The appellant appealed to the Court of Appeal on three grounds: 1) that the prosecution failed to make full disclosure in relation to relevant DNA and finger print evidence and also failed to disclose the fact that there had been confession by a third party; 2) that the prosecution failed to investigate properly or at all the involvement of another person where that person indicated that he had committed the offence and acted alone; 3) that the prosecutor informed the jury that the appellant was arrested while signing on when in fact the ground of appeal stated ‘while signing as part of the bail conditions.’ A further ground related to the fact that the judge in his charge referred to the doctrine of common design.

Held by Birmingham J that, having considered the failure to disclose, it was clearly the prosecution case that more than one individual was involved in the burglary. In those circumstances, Birmingham J considered it hard to see how the information about the DNA evidence and fingerprints could have been of any significance and hard to see what use could conceivably have been made of them by the defence. It seemed to the Court that any juror would have understood the remark about signing on and the phrase ‘signing on’ as a condition of bail was clearly a lawyer”s interpretation. Birmingham J noted that it was clearly the prosecution case that Mr Reilly did not act alone, or certainly may not have acted alone, therefore the reference by the judge to the doctrine of common design was held to be entirely unobjectionable.

Birmingham J held that in the circumstances, the point in relation to disclosure and the related ground in relation to failing to follow up the possible involvement of another individual failed. Birmingham J held that the third ground did not seem to be one of substance and it too failed. Birmingham J held that the ground related to the reference to the doctrine of common design also failed hence the appeal against conviction failed. Regarding sentencing, the Court was of the view that the judge was right to regard the burglary as a serious offence, but took the view that taking as a starting point eight years was unduly high in all the circumstances. Therefore, the sentence was be varied from one of eight years with two suspended to one of six years with two suspended. The sentence was to date from the date that the original sentence was imposed.

Appeal refused in part

Mr. Justice Birmingham

1 On the 3rd May, 2013, the appellant was convicted of the offence of burglary and he was subsequently sentenced to eight years imprisonment with the final two years suspended. The burglary in question occurred at a private residence on Cashel Road in Clonmel on the 27th June, 2011, where the sum of €30,000 and St£3,745 was taken.

2 The grounds of appeal that are put forward are (i) that the prosecution failed to make full disclosure (ii) that the prosecution – the reference really here is to the gardaí– failed to investigate properly or at all the involvement of another person where that person indicated that he had committed the offence and acted alone and (iii) that the prosecutor, and here the reference it is to prosecution counsel, informed the jury that the appellant was arrested while signing on. In fact the ground of appeal stated ‘while signing as part of the bail conditions.’ A further ground relates to the fact that the judge in his charge referred to the doctrine of common design.

3 It seems necessary to put those grounds of appeal in context and to say a little about the facts of the case. The essential facts were that on the day of the burglary, the 27th June, 2011, the injured party who was a restaurateur left his home and went off to spend the day working in his restaurant, returning to his home shortly after 6.00 pm in the evening. He had difficulty putting his key into the front door and in those circumstances he went around to the back and he found something amiss in that he had not left a window open, but now there was a window open. He went in to the house through the window and he found that the house had been burgled and it was very clear that there had been a disturbance and that the house had been upended and tossed to a significant extent. A significant amount of money was stolen, the amount I have already mentioned, which represented his life savings.

4 As it happened, in or around the same time, within minutes of this, two gardaí were patrolling in a garda car in the area. It was their evidence at trial that they saw the accused man coming over a ditch on to the road and that he was holding a bag or, as one described it, a pillow case. When the accused saw the garda car, he turned and ran away. The garda who was in the passenger seat got out and went after the accused man. The accused man got away, but in doing so dropped the bag or pillowcase that he was holding into an area of waste ground, nettles and undergrowth. The gardaí returned to the nettles and undergrowth and recovered the bag and there was the sum of money that had been stolen shortly before.

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