DPP v Reilly
| Jurisdiction | Ireland |
| Judge | Ní Raifeartaigh J. |
| Judgment Date | 20 December 2022 |
| Neutral Citation | [2022] IECA 299 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Ref: CAOT0127/20(20 WXDP0050/2016 |
[2022] IECA 299
Edwards J.
Kennedy J.
Ní Raifeartaigh J.
Appeal Ref: CAOT0127/20(20
Bill No: WXDP0042/2018
WXDP0050/2016
THE COURT OF APPEAL
Judgment of the Court delivered by Ní Raifeartaigh J. on the 20 th day of December 2022
. The appellant was tried and convicted in respect of an offence of demanding money with menaces as set out by Section 17 Criminal Justice (Public Order) Act 1994 as amended by Section 22 of the Intoxicating Liquor Act 2008. His appeal concerns the following issues:
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(1) the admission of two witness statements pursuant to s.16 of the Criminal Justice Act 2006:
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(2) whether the evidence adduced proved the ingredients of the offence of demanding money with menaces pursuant to s.17;
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(3) whether or not certain evidence ruled admissible by the trial judge amounted to inadmissible hearsay.
. On the night of Christmas Eve, 24 December 2017, one Linda Ring was at home with her two young children and her partner Declan Kavanagh. At approximately 8pm, three men arrived at the door, one of whom was wearing a balaclava. Ms. Ring answered the door and certain things were said to her in connection with money owed by her older son Stephen. She went back inside to get Mr. Kavanagh, who went to the door and interacted with the three men. The men then left. The prosecution case was that the appellant was one of the three men, and that the interaction constituted an unwarranted demand for money with menaces. Details of what was alleged to have been said at the door will be dealt with below.
. The Gardaí were called and arrived at the house, where statements were taken from each of Ms. Ring and Mr. Kavanagh within hours of the incident. Each of their Garda statements was ultimately admitted at the trial pursuant to s.16 of the 2006 Act and the first ground of appeal, to be discussed shortly, concerns those rulings of the trial judge.
. However, before examining each of the s.16 applications in further detail, it may be helpful to observe that the appellant, when interviewed by the Gardaí, had indicated that he was present at Ms. Ring's door on the night in question. The appellant's account, which was presented to the jury during the trial, was recorded in a memorandum of interview as follows:-
“I don't know that much. I know this much; I was out for a few pints on Christmas Eve. I was in Toss Kavanagh's with a work colleague. It must have been about 8 o'clock. I'm not too sure. A chap who I know well came in, spoke to my colleague about a vehicle he was buying and once they'd discussed what they were talking about, he asked me if I'd like a lift down to Rosslare. I said, “Yea, I'll take a lift”. Me and the work colleague Mark Shiggins got into the vehicle. The driver is Pat Heago. He dropped Shiggins off at Vinegar Hill. He proceeds down towards Rosslare. I ask him if he'll pass through [name of area] where I proceeded to look for Stephen Ring's house. We went past it. There was a blue van parked outside it as I walked up with two fellows sitting in it. I opened the gate of Stephen Ring's house. One of the fellows opened the door and followed me in and said, “Stephen”. I said I wasn't Stephen. I rang the doorbell. He stood further up the path. When they opened the door, the fellow came walking down the path aggressive. I said to Linda, “This has nothing to do with me”. I said, “I was just here”. He was shouting and roaring. He was a big fellow. He said, “It's nothing to do with him you know why I'm here”. I said to Linda that I was just there to tell Stephen that the problem he had asked me about I had addressed. I turned around and headed quickly towards the gates where another fellow had been standing, walked through the gates, ran down to where Pat was waiting, got in his car. I asked him did he see what was going on there. He said no, he was on his phone. I said, “Just go go cause there's trouble here”. I told him little bits and pieces of what was going on but he was on his phone and took no notice of it. He drove me home… (Emphasis added)”
. In other words, the appellant indicated that he was at the door at the same time as other people but contended that this was a coincidence and that his own behaviour was innocuous. The appellant went on to say that the next he heard of the incident was that Stephen rang him and told him that he was thrown out of the house. He gave a description of the man who was standing at the gate when he left the house. He was asked if he knew who Coco was and said he did, saying “ That's who robbed me of my wages, of my two weeks' wages”. He was asked if he called to the house to collect money for a drug debt he said “ That's what they're saying”. He was asked if he could turn back the clock what would he do differently on Christmas Eve and his answer was: “ If I wasn't robbed by Coco, I wouldn't have left the house because I was waiting for him to give me the money back. He told me he would give me back my money. Stephen Ring said I was bullied by Coco”.
. For completeness, we also observe that during cross examination of Sergeant Cleary, he indicated that there were other incidents at the Ring household on 27 April and 10 May 2018 and that three other people were before the courts in relation to those incidents, unrelated to the accused. We turn now to the trial judge's rulings on the admissibility of the witness statements pursuant to s.16.
. On the first day of trial, and before the case commenced, prosecution counsel informed the court that she had two main witnesses, Ms. Ring and Mr. Kavanagh, but that neither of them was present. Her instructions were that the Gardaí had been informed that Ms. Ring had to go to the doctor that morning. Sergeant John Cleary then gave evidence to the Court and indicated that he had spoken to Ms. Ring the previous evening. He said she was very upset and anxious about the trial and when he rang again in the morning he was not able to talk to her. Mr. Kavanagh rang him back to inform him that Ms. Ring had not slept all night, that she was sick, had cold sores, was very upset, and that he had to bring her to the doctor. The Sergeant informed Mr. Kavanagh that they would need a certificate from the doctor. The Gardaí had subsequently tried to ring Ms. Ring at 10:30 am and there was no answer.
. The trial judge declined to issue a warrant at that point, deciding to wait a little longer. After a short adjournment, Mr. Kavanagh arrived in court and the prosecution sought a warrant in relation to Ms. Ring. Mr. Kavanagh told the court that Ms. Ring was ill and was then called into the witness box. Upon the judge asking him a question, he responded that he was “ withdrawing all statements”. When questioned by prosecution counsel, he indicated that Ms. Ring was at home and was not well. He also referred to their having children who had to be minded.
. After another short adjournment the court was told that Ms. Ring was in a consultation room beside the courtroom and was upset and saying that she would not come into court. A jury was then sworn in and sent away to elect a foreperson. In the absence of the jury, Ms. Ring was called to the witness box and questioned by the judge. She said that she would “ like to drop the case”, “ I can't do this anymore”, that “ I just feel like my life has just- I'm just fed up of it, like”.
. The trial judge indicated that the trial should commence. The jury were brought in, the appellant was given in charge, and prosecution counsel opened the case. The jury were then sent away while the appellant's counsel made an application to have certain evidence ruled as inadmissible hearsay. We will return later to that issue as it is a separate ground of appeal. The trial judge ruled on the hearsay application and the jury were brought back. Ms. Ring was called and gave evidence in front of the jury.
. We propose to set out here the contents of Ms. Ring's witness statement to the Gardaí before dealing with her evidence at the trial. While this was not, of course, the sequence adopted at the trial (as it never could be), it may be in ease of the reader as it will set the context for the application and ruling pursuant to s.16 of the 2006 Act.
. In her statement, Ms. Ring had said as follows:
“Stephen is 20 and I am aware that Stephen has been smoking cannabis. He had gathered a drug debt from an English lad called John Reilly who is in his forties, small in height, average weight. I have paid two or three sums of money for Stephen for drugs, in total €1,000. I am aware that Stephen still owes €1,300 to John Reilly for drugs. I have received calls and texts from John Reilly on [phone number given] looking for Stephen and for the €1,300. Tonight I was home at [address given] with Stephen, [names of her children] and [child's name]'s father Declan Kavanagh. A knock came to door at 8:00 pm tonight I opened the door and there was two lads standing at the door. I knew one of them is John Reilly. I didn't know the other lad. [Description given] when I opened the door John Reilly asked was Stephen there and the other lad was talking. I don't know what he was saying. I know Stephen was meant to meet him with money but hadn't. I recalled John Reilly saying Coco was picked up tonight and dealt with and was in A&E. I don't remember much more as I was shocked. The lad with John Reilly said the money was owed him now. I came in and got Declan. Declan went out to them then and at this stage another fellow got out of the van. He went down the side of the house and had a balaclava on. He...
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