DPP v Shannon

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IECA 242
• Court: Court of Appeal (Ireland)
• Docket Number: Record No 257/14
• Date: 29 July 2016

Sheehan J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

ANDREW SHANNON

Appellant

[2016] IECA 242

Edwards J.

Record No 257/14

THE COURT OF APPEAL

Conviction - Criminal damage to property - Error in law - Appellant seeking to appeal against conviction - Whether trial judge erred in law and in fact in refusing an application for a separate trial

Facts: The appellant, Mr Shannon, on the 29th of June 2012?at the National Gallery, approached an impressionist painting by Claude Monet and was captured on CCTV moving forward in the direction of the painting with his arm raised and striking the painting, thereby causing a substantial tear to it. On the 8th of January 2014 at the Shelbourne Hotel, the appellant was recorded on the hotel's CCTV system as being in the vicinity of the Deirdre and Adam suite in which two large paintings by the artist Felim Egan were hanging. Some time after this, staff members returned to the suite and observed that the two paintings had been damaged. They appeared to have been torn or possibly slashed. The appellant was identified as a suspect and charged with causing criminal damage. The appellant was tried before a jury in the Circuit Criminal Court on foot of an indictment containing three counts of causing criminal damage to property, contrary to s. 2(1) of the Criminal Damage Act 1991. Count 1 related to the National Gallery incident. Counts 2 and 3 related to the Shelbourne Hotel incident. The appellant sought a separate trial in respect of count 1 and counts 2 and 3 on the basis that it would be fundamentally unfair for the appellant to be tried in respect of both incidents together. At the end of the prosecution case the trial judge granted a direction in respect of counts 2 and 3 but allowed count 1 to go to the jury.?Arising from the granting of the direction the appellant submitted to the trial judge that the appellant could no longer receive a fair trial in relation to count 1 and that the jury should be discharged. That application was refused. On the 4th of December 2014 the jury convicted the appellant of the offence charged in count 1. The appellant was subsequently sentenced to six years imprisonment with the last fifteen months thereof suspended. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in law and in fact in refusing: 1) the application for a separate trial in respect of counts 2 and 3 on the indictment; 2) the application on behalf of the appellant to discharge the jury in respect of count 1 on the indictment upon acceding to his application for a direction in respect of counts 2 and 3. It was submitted on behalf of the appellant that taking into consideration the principles enunciated in?The People (DPP) v K(B)?[2000] 2 IR 199 and the facts in this case there was no sufficient nexus between the incidents to allow for a joint trial. It was submitted that in all of the circumstances the trial ought not to have proceeded further once the court had directed the jury to find the appellant "not guilty" of the counts relating to the Shelbourne Hotel incident and that the jury ought to have been discharged.

Held by Edwards J that he was satisfied that the trial judge correctly exercised his discretion not to sever the indictment and to allow proposed evidence of the Shelbourne Hotel incident to be relied upon in the case involving the National Gallery incident, and vice versa, because in each instance the proposed evidence in controversy, which was properly to be characterised as "system" evidence, was potentially relevant to an issue or issues in the proceedings, and it was sufficiently probative. The Court was satisfied that the trial judge was correct not to discharge the jury; the discharge of a jury should always be a measure of last resort. Edwards J noted that experience has shown that juries take their oath and function seriously, and that they can be trusted to follow judicial directions and instructions.

Edwards J held that he was satisfied in all the circumstances of the case that the trial was satisfactory and that the conviction on count 1 was safe. The Court therefore dismissed the appeal against conviction.

Appeal dismissed.

Judgment of the Court delivered 29th of July 2016 by Mr. Justice Edwards .

Introduction.

1 In this case the appellant was tried before a jury in the Circuit Criminal Court on foot of an indictment containing three counts of causing criminal damage to property, contrary to s. 2(1) of the Criminal Damage Act 1991. At the end of the prosecution case the trial judge granted a direction in respect of counts no's 2 and 3, respectively, on the indictment; but allowed count no 1 to go to the jury. On the 4th of December 2014 the jury convicted the appellant of the offence charged in count no 1. The appellant was subsequently sentenced to six years imprisonment with the last fifteen months thereof suspended.

2 The appellant has appealed against both his conviction and sentence.

3 This judgment deals only with his appeal against conviction

The Grounds of Appeal

4 The appellant appeals against his conviction on two grounds:

i. The trial judge erred in law and in fact in refusing an application for a separate trial in respect of counts no's 2 and 3 on the indictment;

ii. The trial judge erred in law and in fact in refusing an application on behalf of the appellant to discharge the jury in respect of count no 1 on the indictment upon acceding to his application for a direction in respect of counts no's 2 and 3 on the same indictment.

Relevant Background

5 The three counts that were initially preferred covered two separate incidents which may be conveniently referred to as ‘the National Gallery incident’ and ‘the Shelbourne Hotel incident,’ respectively. Count No 1, in respect of which the appellant was convicted, related to the National Gallery incident. Count No's 2 and 3, in respect of which the appellant was acquitted by direction of the trial judge, related to the Shelbourne Hotel incident.

6 The National Gallery incident concerned the damaging on the 29th of June 2012 of an impressionist painting by Claude Monet, with the descriptive title ‘Argenteuil Basin with a single boat’, painted in 1874 and having an indicative value of circa €10,000,000. The appellant had entered the gallery shortly after 10am on the date in question and had viewed a number of paintings. He approached the Monet painting in question and was observed standing in front of it. There were 2 witnesses present. He was captured on CCTV moving forward in the direction of the painting with his arm raised and striking the painting, thereby causing a substantial tear to it. The State's case was that the damage was premeditated and caused deliberately. However, the appellant contended at all material times that he had suffered a coronary episode, that he had accidentally fallen in the direction of the painting as a result of feeling faint, and that in order to save himself as he felt himself falling he had instinctively raised an arm and hand which had impacted the painting.

7 The Shelbourne Hotel incident was alleged to have occurred on the 8th of January 2014. The appellant, along with his nephew, were observed on the hotel CCTV system as being present in the hotel on the same day. There had been a function taking place upstairs in the ‘Deirdre and Adam suite’ of the hotel, in which two large paintings by the artist Felim Egan were hanging. When the function was over and the participants had left, two members of hotel's staff remained and were engaged in clearing up. Having completed their task they then left the Deirdre and Adam suite. The paintings were undamaged at this time. The appellant and his nephew were later recorded on the hotel's CCTV system as being in the vicinity of the Deirdre and Adam suite. The appellant was observed later again leaving the building at around 7pm. Some time after this the staff members returned to the Deirdre and Adam suite and observed that the two Felim Egan paintings had been damaged. They appeared to have been torn or possibly slashed. The matter was subsequently reported to An Garda Siochána. The appellant and his nephew were identified as suspects from the CCTV footage. They were later arrested by Gardaí, following which they were detained and interviewed while in detention. The appellant made no admissions save for the fact of an acknowledgment that he had indeed been in the Shelbourne hotel on the date in question. However, he contended that he had merely been visiting the hotel's spa facility. Both men were initially charged with causing criminal damage to the paintings; however the charges against the appellant's nephew were subsequently dropped and the prosecution arising out of this incident proceeded against the appellant only.

8 Count No 1 on the current indictment, relating to “the National Gallery incident”, was originally the subject of bill of indictment number 827 of 2012 and a trial took place in December 2013 before Dublin Circuit Criminal Court. The jury in that matter were unable to reach a verdict and a date for a retrial was fixed.

9 The offences which ultimately became Counts No's 2 and 3 on the current indictment, relating to “the Shelbourne incident”, involving as they did offending conduct which was alleged to have occurred on the 8th of January 2014, were originally charged and returned for trial on a separate bill of indictment number 439 of 2014. In the meantime, a new trial date in bill number 827 of 2012 had been fixed. The appellant was therefore now subject to two separate returns for trial to the Circuit Criminal Court.

10 Later an amended bill of indictment was presented by the respondent, bill number 827A of 2012, containing 3 counts relating to both the “National Gallery...