DPP v Roche, Roche, & Freeman

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IECA 317
• Docket Number: Record Numbers: 30/18 2/18
• Date: 19 December 2019
• Court: Court of Appeal (Ireland)

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

PATRICK ROCHE

APPELLANT

- AND -

PHILIP ROCHE

APPELLANT

- AND -

ALAN FREEMAN

APPELLANT

[2019] IECA 317

The President

McCarthy J.

Kennedy J.

Record Numbers: 30/18

21/18

2/18

THE COURT OF APPEAL

Conviction – Aggravated burglary – False imprisonment – Appellants seeking to appeal against conviction – Whether the evidence was overwhelmingly against the appellants

Facts: The appellants, following a nine-week trial, were convicted before Limerick Circuit Criminal Court on the 27th July 2017. Mr Patrick Roche was convicted of two counts of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false imprisonment contrary to s. 15 of the Non Fatal Offences Against the Person Act 1997; and dishonest handling contrary to s. 17 of the 2001 Act. He received a sentence of 17 years’ imprisonment with three years suspended. Mr Philip Roche was convicted of two counts of aggravated burglary contrary to s. 13 of the 2001 Act; eight counts of false imprisonment contrary to s. 15 of the 1997 Act; and possession of stolen property contrary to s. 18 of the 2001 Act. He received a sentence of 15 years’ imprisonment with three years suspended. Mr Freeman was convicted of one count of aggravated burglary contrary to s. 13 of the 2001 Act and five counts of false imprisonment contrary to s. 15 of the 1997 Act. He received a sentence of 14 years’ imprisonment with three years suspended. The appellants appealed to the Court of Appeal against conviction. The appellants put forward a combined total of 34 grounds of appeal, as outlined in their notices of appeal.

Held by the Court that the evidence against Mr Freeman at trial concerning the aggravated burglary of the Garvey family was limited in his case to the evidence of the accomplice Mr Cahill. The Court held that there was no evidence capable of corroborating Mr Cahill’s testimony, nor was there any forensic evidence or any other circumstantial evidence linking Mr Freeman to these offences. The Court held that this was not a case where the evidence aside from the impugned evidence was overwhelmingly against Mr Freeman. In those circumstances, notwithstanding its view that the indictment should not have been severed in the first instance, the Court was not satisfied to apply the proviso, s. 3 (1) of the Criminal Procedure Act 1993. In those circumstances, the Court held that Mr Freeman’s appeal must be allowed. The Court rejected the other grounds of appeal.

The Court held that the appeals of Messrs Roche would be dismissed, and that the appeal of Mr Freeman would be allowed.

Appeals dismissed. Appeal allowed.

Judgment of the Court delivered on the 19th day of December 2019 by Ms. Justice Kennedy .

Introduction

1 The appellants seek to appeal against conviction. Following a nine-week trial, the appellants were convicted before Limerick Circuit Criminal Court on the 27th July 2017.

2 Patrick Roche was convicted of two counts of aggravated burglary contrary to section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act 1997; and dishonest handling contrary to section 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He received a sentence of 17 years' imprisonment with three years suspended.

3 Philip Roche was convicted of two counts of aggravated burglary contrary to section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act 1997; and possession of stolen property contrary to section 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He received a sentence of 15 years' imprisonment with three years suspended.

4 Alan Freeman was convicted of one count of aggravated burglary contrary to section 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and five counts of false imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act 1997. He received a sentence of 14 years' imprisonment with three years suspended.

Background

5 The offences in question relate to two separate incidents of aggravated burglary in Co. Limerick. The first aggravated burglary was committed at Sunville House (the Garvey home) and involved all three appellants and the second aggravated burglary took place at the home of the Creeds and involved Patrick and Philip Roche only.

The Garvey House

6 On the 13th April 2012, a sky-blue BMW was stolen from a location in Cappaghmore, Co. Limerick. This vehicle was then used in the aggravated burglary at Sunville House on the 16th April 2012. On the night in question, Gerard and Anne Garvey were at home with their four children who were aged between 14-16 at the time. At 9:40pm, four men gained entry into Sunville House, breaking the glass of the patio door. The men were armed with various implements including a sawn-off shotgun, sledgehammer and a baseball bat. The men split up inside the house in order to take control of the occupants. Two of the men went upstairs where three of the children were situated along with Anne Garvey. Graham Garvey, who was 14 at the time, was struck by one of the men. At the same time, Gerard Garvey was kept downstairs where he was restrained lying on his stomach with handcuffs. He was assaulted a number of times. Evidence was given that threats to the effect of “We'll blow your head off. We'll kill your daughter. We'll take away your kids. You will never see them again” were made against Mr Garvey in the presence of his daughter Gillian who was 14 at the time. At one point, a shotgun was pressed against Mr Garvey's forehead. Anne Garvey was threatened a number of times in front of her children. She then led the men to a safe in the bedroom from which she removed a white envelope containing 3000 USD and 2000 in sterling which she gave to the men. Once the men received the money, they restrained the rest of the family members with cable ties and fled the scene in a BMW.

7 Approximately an hour after the incident at Sunville House, two Gardaí on mobile patrol became suspicious of two vehicles which appeared be driving in convoy. The Gardaí followed the vehicles, one of the vehicles got away but the other vehicle was stopped; a BMW registration number 08 C 40057 and one of the occupants of that car was identified to be Patrick Roche. He was the front seat passenger. The car was searched and various items including a black balaclava, rubber gloves, handcuffs and a screwdriver were found. When Patrick Roche was searched, it transpired that he was wearing three pairs of pants and two pairs of socks. Patrick Roche was arrested and charged with an offence contrary to s.15(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and was released on bail. On the 17th April 2012, he was arrested by Detective Garda O'Connell on suspicion of committing an offence contrary to s.73 of the Criminal Justice Act 2006, namely, on suspicion of a serious offence, for the benefit of, or direction of, or association with a criminal organisation, to wit an aggravated burglary at Sunville House, Co. Limerick. He was detained and his clothing was seized and on later analysis shards of glass were found therein. Samples of these were sent for forensic analyses and were found to offer moderate support for the view that Patrick Roche had contact with the patio window from Sunville House.

8 The black balaclava was found in the front passenger side door, as were the rubber gloves and the screwdriver. 1850 USD were found in the glove compartment and the handcuffs and handcuff keys were found in the pocket of a jacket. Finally, a ski mask described as similar to a balaclava was discovered between the front seats.

9 The evidence disclosed that the handcuffs found in the BMW were similar to those used to restrain Mr Garvey and the keys found opened the handcuffs found in the vehicle and also opened the handcuffs which had been used to restrain him.

The Creed House

10 The second incident took place on the 31st May 2012 in a house located in relatively close proximity to Sunville House. This house was occupied by three siblings, William, Nora and Chrissie Creed who were aged 74, 68, and 72 respectively at the time. Shortly after 9:30 pm on the night in question, Nora and Chrissie were in the parlour when two men broke into the house, roaring and shouting. William, who had gone to bed, heard the commotion and went to the front door where he was then knocked to the ground, pulled along the floor and punched repeatedly in the head and chest. The perpetrators were armed with some form of handle, as well as a butcher knife and a screwdriver. William was punched repeatedly in the face and stabbed in the head several times with a screwdriver. One of the perpetrators shouted that he was on drugs and he could get very violent and threatened to stab him and cut his throat. At one point, one of the perpetrators cut William's hand. Meanwhile, Chrissie and Nora were also subject to serious violence as they were knocked to the ground and punched. All three were tied up with belts and cable ties and told that they would be killed if they did not co-operate and tell them where their money was. After a period of time, the raiders were told where the money was to be found. They located and stole €5,000 from the house and left shortly thereafter. The men fled through the fields and were collected by a third man. The scene was subject to a forensic examination and ten days after the incident, Nora Creed, contacted the Gardaí and gave Garda Vincent Donnellan a fingertip of the glove which she said she had found in the rubbish bin. This was potentially significant as her sister Chrissie had pulled...