DPP v Trebacz
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] IECA 128 |
| Docket Number | 63/2014 |
| Court | Court of Appeal (Ireland) |
| Date | 21 February 2019 |
[2019] IECA 128
63/2014
THE COURT OF APPEAL
Conviction – Murder – Unsafe verdict – Appellant seeking to appeal against conviction – Whether verdict was unsafe
Facts: The appellant, Mr Trebacz, appealed to the Court of Appeal against his conviction on the 18th December, 2013 for the murder of a Mr Cretu on the night of the 13th October 2012. He was sentenced to imprisonment for life accordingly on the 17th February 2014. The appellant claimed that the trial was unsatisfactory and the verdict unsafe on the following grounds: (1)(a) having regard to the evidence and demeanour of the main prosecution witness, Ms Sotir, mid-way through her cross-examination, the trial judge himself took the view that Ms Sotir was an unreliable witness; (1)(b) the failure of the trial judge to give a warning in relation to the reliability of Ms Sotir as to her location in the subject apartment and in particular her ability to observe the incident the subject matter of the prosecution; (1)(c) the failure of the trial judge to give a sufficient modified “Lucas” warning in circumstances where the prosecution in closing its case placed great weight upon a number of lies told by the appellant in relation to a number of matters to support its case that the appellant intended to kill or cause serious injury to the deceased; (1)(d) the failure to carry out a proper investigation; (1)(e) the failure of the trial judge to put the appellant’s case to the jury; (1)(f) the failure of the trial judge to direct the jury to acquit the appellant of murder; (2) the failure of the trial judge to advise the jury that Ms Sotir conceded that she could not observe the incident by reason of her position in the apartment; (3) the refusal of the trial judge to re-charge the jury in accordance with the requisitions made on behalf of the appellant that his assertion to the jury that Ms Sotir’s evidence had been that she was not at the window at the time (of the incident) was not borne out by the transcript of her cross examination on day 4 of the trial; (4) the failure of the trial judge to properly put the alternative verdict of not guilty simpliciter to the jury, or in the alternative, the trial judge erred in fact and in law by stating to the jury that no party had argued for such a verdict; (5) the repeated references by the trial judge to the term ‘Soviet Attack’ to the jury at a time when they had already spent some 8 hours and 37 minutes in deliberation and shortly before they returned a majority verdict.
Held by the Court that, in all of the circumstances, the prosecution had a very strong case and there was clearly sufficient evidence to convict. After a comprehensive review of the issues raised by the appellant, the Court found that none of the points raised, individually or as a whole, raised any doubts over the fairness of the trial or the safety of the jury’s verdict.
The Court held that there was no reason to believe that the appellant’s trial was unsatisfactory, or that the verdict was unsafe. The Court therefore dismissed the appeal on all grounds.
Appeal dismissed.
This is an appeal by Mr. Trebacz against his conviction on the 18th December, 2013 for the murder of a Mr. Cretu on the night of the 13th October 2012. He was sentenced to imprisonment for life accordingly on the 17th February 2014. The conviction arises as a result of disputed events which took place at 2 Connolly Court, Connolly Street, Cavan. The accused went to the premises just after eleven o'clock on the night in question, in his contention, for the purpose of availing of the services of a prostitute. It is not in dispute that when he arrived there were present in the apartment one male (the deceased) and two females, Florentina Sotir and someone called ‘Stropp’ who was not properly identified and could not be found thereafter. Thus the prosecution was reliant to a significant degree on the evidence of Ms. Sotir to prove the immediate circumstances of the death in the premises and her credibility was accordingly at the core of the trial. It is not in debate that the deceased received two stab wounds, one of which (contended by the prosecution to be that first inflicted) was fatal.
The accused in the company of two males, one ‘Marcin’ and a second, who was unnamed, and who left before anything untoward occurred, went to the premises in a taxi driven by one Gary Malone. During the course of the journey, he heard reference to a ‘ Soviet attack’ (a term explained by the accused when being interviewed by the Gardaí on the 15th October 2012 as ‘an expression in Poland when people want to get aggressive and fight, it comes from fighting the Russians’) and what he understood to be an allegation that the deceased had sexually abused children with the need to protect people from him. That witness described the accused as having had ‘something solid’ concealed in a sock held in his left hand. He saw the accused bang on the front door of the building in which the apartment in question was situated, kick it in and enter (with the second male), the duo returning some five to ten minutes later at that stage with their faces covered. CCTV footage of the outside showed that when the accused approached he was carrying a long object in his left hand. The prosecution contended that the item seen by the taxi driver and on CCTV as carried by the accused was the murder weapon. It appears from the evidence of the State Pathologist, Professor Cassidy, that what was the first (and fatal) wound inflicted on the deceased was ‘suggestive of a (knife) being swung across his body in an arc-like manner, the knife held in the left hand of the assailant if both parties were facing each other’ in circumstances where there was a deeply penetrating wound to the front of the chest.
Florentina Sotir had made three statements to the Gardaí on the 14th, 15th and 16th of October, 2012 and on the 3rd of January, 2013. She contended that the truth of what had occurred was contained in that made in January, whatever she may have said previously. She was cross examined at very considerable length because the earlier statements were admittedly untruthful or incomplete. Many deficiencies were apparent in her evidence, though she remained adamant that following banging on the door by the accused, he and the second man broke into the apartment (although she did not see them do so herself) and stabbed the deceased in the chest whilst the latter was in the middle of the hallway. She said in evidence that the assailant had held a knife to her throat and that the contents of her wallet was stolen. Perhaps unwisely, the trial judge was moved to give his own opinion as to her credibility describing it as being ‘totally shot’ in an exchange with prosecuting counsel in the absence of the jury, indicating that he would not express that view to the jury since her credibility would be a matter for them.
The following grounds of appeal were relied upon: -
‘ Having regard to all the circumstances, the trial was unsatisfactory and the verdict unsafe because:
Ground 1 (a): Having regard to the evidence and demeanour of the main prosecution witness mid-way through her cross-examination, the trial judge himself took the view that Ms Sotir was an unreliable witness. There must be concerns over whether Ms Sotir witnessed the incident in the manner she says. It was the duty of the trial judge to exercise extreme caution with the evidence of Ms Sotir to ensure that the appellant received a fair trial.
Ground 1 (b): The failure of the trial judge to give a warning in relation to the reliability of the prosecution witness, Florentina Sotir, as to her location in the subject apartment and in particular her ability to observe the incident the subject matter of the prosecution.
Ground 1 (c): The failure of trial judge to give a sufficient modified ‘Lucas’ warning in circumstances where the prosecution in closing its case placed great weight upon a number of lies told by the appellant in relation to a number of matters to support its case that the appellant intended to kill or cause serious injury to the deceased.
Ground 1 (d): The failure to carry out a proper investigation. There were shortcomings in the prosecution case that inhibited the appellant having a fair trial in due course of law. There was a distinct lack of cooperation from a number of potential prosecution witnesses in this case, namely “Stropp” and “Bogdam”.
Ground 1 (e): the failure of the trial judge to put the appellant's case to the jury. The trial judge in his charge did not set out the defence case by reviewing the overnight transcript of what counsel for the appellant had said in closing. It is submitted that this did not sufficiently set out the precise defence upon which the appellant sought to rely.
Ground 1 (f): The failure of the trial judge to direct the jury to acquit the applicant of murder. The main contention by counsel was that there was not sufficient evidence for a jury to conclude that the appellant had formed an intention to kill or to cause serious injury. Having regard to the concerns as to the reliability of Ms Sotir, it was not safe to ask the jury to decide the issue of murder upon her evidence.
Ground 2: The failure of the trial judge to advise the jury that Florentina Sotir conceded that she could not observe the incident by reason of her position in the apartment.
Ground 3: The refusal of the trial judge to re-charge the jury in accordance with the requisitions made on behalf of the Appellant that his assertion to the jury that Florentina Sotir's evidence had been that she was not at the window at the time (of the incident) was not borne out by the transcript of her cross examination...
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