DPP v O'Reilly

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [C.C.A. No. 70 of 1986]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. O'Reilly

The People (at the suit of The Director of Public Prosecutions)

and

Patrick O'Reilly

[C.C.A. No. 70 of 1986]

Court of Criminal Appeal

Criminal law - Evidence - Identification - Admissibility of evidence of identification - Fair procedures - Accused identified on street exiting from courthouse - Partial identification of accused when entering courthouse - Formal identification parade not held - Whether circumstances required the holding of a formal identification parade - Whether reason for not holding formal identification parade satisfactory - Trial judge's warning to jury on danger of convicting on evidence of visual identification - Whether warning too general.

The applicant was convicted in the Mullingar Circuit Court of the larceny of £850 and was sentenced to four years penal servitude. He applied for leave to appeal against conviction and sentence.

An 81 year old woman was in her garden when a man appeared and offered to do a painting job for her which she declined. He asked for a drink of water and while she was providing this another man, the applicant, appeared with a bedspread and offered to sell it to her. The injured party described him as "a stout butt of a fair haired man" and that he had "a most notorious face, an awful face" and she stated that she thought he was insane or an idiot and that she got "a most dangerous fright". Sometime later she discovered that £850 or thereabouts was missing. The matter was reported to the gardaí and suspicion centred on the applicant due to the fact that a car similar to his was seen outside the injured party's house at the relevant time. About two months after the crime, the injured party was brought by the gardaí to Edgeworthstown at or near the court-house so that she might observe people in the street and ascertain if she could identify anyone as having been in her house on the day of the crime. After some time a group of five people appeared and the injured party said of one of them "I think that's him there" and I didn't get a good look at him."

The people went into the courthouse and emerged about one hour later and she said of the same man "that's him, that's him, the fellow with the ugly face" and she pointed out the applicant..

At the trial evidence was given by the investigating garda that he was twenty-three years in the Garda Síochána and in that time he had never held a formal identification parade and that in his opinion it was more beneficial to a defendant to arrange an informal identification.

The trial judge in his charge to the jury warned them of the danger of acting on the evidence of visual identification and stated inter alia that they, the jury, must weigh up very carefully the opportunity, the length of time and the circumstances in which the witness observed the accused, and as to whether she would get an identification wrong or otherwise.

The case for the defence was that evidence of identification should not have been admitted in the absence of a satisfactory explanation as to why a formal identification parade was not held; that fairness required that no convenient short-cuts be taken by the State in obtaining evidence if it affected a defendant's ability to test the evidence adduced by the prosecution and that there were valuable safeguards which applied to the holding of formal identification parades and that one should be held unless there was a good reason for not doing so.

The witness, counsel for the applicant stated, was an old lady who suffered from arthritis, had sustained a severe fright, whose opportunity for observing the features of whoever was in her house were limited and who had not known the accused before. Counsel submitted that these were factors which required the holding of an identification parade.

Counsel also submitted that the purported identification was not corroborated and that there were discrepancies in the description of the applicant and that the trial judge in his charge to the jury did not adequately warn the jury of the danger of relying on evidence of identification and that the warning was too general.

On behalf of the prosecution it was submitted that there was no rule of law requiring the holding of a formal identification parade and that the question was whether the method used was fair; the injured party was vigorously cross-examined and she was quite clear at all times. The jury had the benefit of assessing her in the witness box, and the manner of the informal parade was fully tested in court.

Held by the Court of Criminal Appeal (O'Flaherty, Barr and Lavan JJ.), in allowing the application and quashing the conviction that, 1, while there was no rule of law or practice that required visual identification of a person to be proved by means of a formal identification parade the circumstances of a case may require the holding of an identification parade.

The People (Attorney General) v. MartinIR [1956] I.R. 22 considered.

2. That in the instant case, the circumstances were such that fair procedures required that a formal identification parade should have been held, and the reason given for not holding one was not satisfactory.

The People (Attorney General) v. Fagan (1974) 1 Frewen 375 and The State (Healy) v. DonoghueIR[1976] I.R. 325 considered.

3. That an accused may be seriously inhibited in challenging the fairness of an informal identification parade at his trial because inter alia he was unlikely to have had knowledge of its happening.

4. That a trial judge, in directing the jury on the danger of acting on evidence of visual identification alone, must also relate the general warning to the particular facts in which the witness observed the accused. In the instant case the trial judge should have emphasised in greater detail the infirmities that surrounded the identification made in Edgeworthstown.

The People (Attorney General) v. CaseyIR [1963] I.R. 33 followed.

Cases mentioned in this report:—

In re Haughey [1971] I.R. 217.

The People (Attorney General) v. Casey (No. 2)IR [1963] I.R. 33.

The People (Attorney General) v. Fagan (1974) 1 Frewen 375.

The People (Attorney General) v. MartinIR [1956] I.R. 22.

The People (Attorney General) v. O'CallaghanIRDLTR [1966] I.R. 501; (1968) 102 I.L.T.R. 45.

The People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351.

The State (Healy) v. DonoghueIRDLTRDLTR [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 37.

Criminal Appeal

The applicant applied for leave to appeal against his conviction at the Mullingar Circuit Court before His Honour Judge Deery and a jury on a charge of larceny contrary to s. 2 of the Larceny Act, 1916, and the sentence of...