DPP v Tynan

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date07 Jul 2017
Neutral Citation[2017] IECA 202
Docket Number22/2017

[2017] IECA 202

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Mahon J.

Hedigan J.

22/2017

The People at the Suit of the Director of Public Prosecutions
Respondent
V
Declan Tynan
Appellant

Conviction – Violent disorder – Recognition evidence – Appellant seeking to appeal against conviction – Whether recognition evidence was admissible

Facts: The appellant, Mr Tynan, on 16th December, 2016, was convicted in the Dublin Circuit Criminal Court of the offence of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994 as amended and was subsequently sentenced to a term of four years imprisonment with the final year suspended. He appealed to the Court of Appeal against that conviction. His grounds of appeal were formulated and grouped as follows in the course of the written submissions filed on behalf of the appellant: (i) The provenance and admissibility of the recognition evidence; (ii) A statement that was made while giving evidence by the investigating member, Sergeant Loughrey, in the presence of the jury to the effect that there were other witnesses available but that were not being called by the prosecution; (iii) The manner in which a question that was posed by the jury in the course of their deliberations was dealt with by the trial judge; (iv) The fact that the appellant was not provided with certain Garda PULSE records that he sought.

Held by the Court that in the circumstances of the case it was not persuaded by any of the arguments in relation to the recognition issue and dismissed the first ground of appeal. The Court held that the remark which gave rise to the application for the discharge of the jury was unfortunate, though the desire to clarify the position given the nature of the cross examination was understandable. In the Court’s view, the judge was entitled to take the view that the remark, which she closed down so quickly, was not of such moment as to require the discharge of the jury; accordingly the second ground of appeal failed. The Court noted that the question that remained for consideration by the jury was whether they were satisfied beyond reasonable doubt of the reliability of Garda McAvinue’s identification; the majority verdict of the jury was that they were so satisfied. In those circumstances the Court was not prepared to uphold the third ground of appeal. The Court noted the assurance of prosecution counsel to the trial judge that he reviewed the material and satisfied himself that there was nothing there that would assist the defence and that to redact the PULSE entries that one would be left with the same content as formed the statement of Garda McAvinue. The Court held that if the defence was not happy with what was being stated then the appropriate course would have been to request the trial judge to review the entries. The Court noted that there was no such request and in the absence of same, in the view of the Court the trial judge was entitled to rule on the matter in the way that she did; the fourth ground of appeal therefore failed.

The Court held that it would dismiss the appeal and affirm the conviction.

Appeal dismissed.

JUDGMENT of the Court delivered on the 7th day of July 2017 by Mr. Justice Birmingham
1

On 16th December, 2016, the appellant was convicted in the Dublin Circuit Criminal Court of the offence of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994 as amended and was subsequently sentenced to a term of four years imprisonment with the final year suspended. He has now appealed against that conviction and sentence. This judgment deals with the conviction aspect.

2

The trial related to events that occurred at the premises of Ladbrokes Bookmakers in Killinarden, Tallaght on 13th December, 2012. In the course of the trial, employees of the bookmakers gave evidence that at about 5.30 pm on that day a number of men ran into the premises, one of them armed with a knife. An employee described those who entered as running after one of the customers in the shop who was knocked to the ground and that she saw one of the men swinging a knife in the direction of the person on the ground. The brother of the person who was knocked to the ground was also in the premises and attention was directed towards him by those who had entered. The knife was swung in his direction and a bin or a stool was thrown at him. The individuals who had entered the premises and taken part in this incident then left.

3

Members of An Garda Síochána were summoned to the scene. Sergeant Loughrey was quickly on the scene and he encountered a person with obvious stab wounds. That person was removed to Tallaght Hospital. It is to be noted that neither this person nor his brother were willing to co-operate with the investigation and there was never any medical reports obtained, nor was a victim impact report produced.

4

Sergeant Loughrey made arrangements to take possession of the CCTV footage that covered the incident, contacting Ladbrokes' headquarters in the UK for this purpose. Having obtained CCTV footage of the incident, he arranged for it to be viewed by a member of the Gardaí from Kevin Street Garda Station in Dublin. The member in question, Garda Patrick McAvinue purported to recognise the appellant and indeed the two other men who were shown entering the bookmakers and participating in the incident. This identification was absolutely central to the prosecution case.

5

A number of grounds of appeal have been formulated and these have been grouped as follows in the course of the written submissions filed on behalf of the appellant:-

(i) The provenance and admissibility of the recognition evidence.

(ii) A statement that was made while giving evidence by the investigating member, Sergeant Ciarán Loughrey in the presence of the jury to the effect that there were other witnesses available but that were not being called by the prosecution.

(iii) The manner in which a question that was posed by the jury in the course of their deliberations was dealt with by the trial judge.

(iv) The fact that the appellant was not provided with certain Garda PULSE records that he sought.

The recognition evidence
6

At the outset of the trial it was indicated that there would be an issue in relation to the recognition evidence and there followed a voir dire. In the Circuit Court and now on appeal, the appellant takes as his starting position that various Irish authorities referred to by the DPP go no further than saying that evidence from a member of An Garda Síochána that he recognised an accused person from images of the crime being committed is not inadmissible per se. The appellant is quick to point out that he does not take issue with that but that rather his point is that the admissibility of such evidence should be governed by an assessment of whether the process by which the evidence had been garnered was adequate to ensure that any probative value was not diminished to the extent that it was outweighed by the prejudicial effect. In the course of argument, the appellant has referred to and relied on a number of authorities of the English courts, in particular the case of R. v. J.D. [2012] EWCA Crim. 2637 and the earlier case of R. v. Smith and Ors. [2008] EWCA Crim. 1342. The appellant accepts that those cases were decided under a different statutory regime but says nonetheless that the considerations which are identified there as matters of first principle and common sense are highly relevant and should be applied in this jurisdiction. He says that support for the position for which he contends can be found in the case of The People (DPP) v. Crowe [2015] IECA 9, a case that was concerned with the question of voice recognition or voice identification.

7

In the course of the voir dire it emerged that Sergeant Loughrey, having received the CCTV footage, provided this to a member of An Garda Síochána referred to as the ‘Criminal Intelligence Officer’. This did not give rise to any purported identification or recognition. On 21st January, 2013, Sergeant Loughrey met with Garda McAvinue of Kevin Street Garda Station in that station and showed him the CCTV footage along with stills which had been taken from the footage and he was asked if he could identify any of the suspects involved. Prior to that meeting, Sergeant Loughrey had contacted Garda McAvinue by telephone. In the course of the voir dire, great emphasis was placed on the fact that no notes were taken at the time of the telephone contact between the two members nor were notes taken of what transpired in Kevin Street Garda Station.

8

Garda McAvinue's evidence on the voir dire was that he had joined Kevin Street Garda Station in November, 2007 and was initially assigned to a community policing unit. His duties involved foot patrol and mountain bike patrol. His evidence was that he met and spoke to Declan Tynan on a number of occasions while in that role. In 2009, Garda McAvinue was assigned to a drugs unit at Kevin Street Garda Station and he fulfilled that role for four years. He also interacted with the appellant during that period. Garda McAvinue had made entries on the PULSE system in relation to the appellant on a number of occasions and he had referred to these PULSE records when making a second statement. Garda McAvinue's evidence was that he immediately recognised the appellant from the CCTV footage and stills and when asked by prosecution counsel during the course of direct evidence if he could be wrong he denied that this could be the case. In the course of cross examination, he confirmed that he had made his first statement in relation to the matter on 15th March, 2013 and had done so on foot of a statement request from Sergeant Loughrey. That request referred to what had occurred on 21st January, 2013 when the Sergeant had gone to Kevin Street Garda Station in...

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