DPP v Walsh
| Jurisdiction | Ireland |
| Judge | Edwards |
| Judgment Date | 18 December 2020 |
| Neutral Citation | [2020] IECA 358 |
| Docket Number | Record No: 172/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 18 December 2020 |
[2020] IECA 358
Edwards J.
McCarthy J.
Ní Raifeartaigh J.
Record No: 172/2019
THE COURT OF APPEAL
Conviction – Threatening to kill or cause serious harm – Unsafe verdicts – Appellant seeking to appeal against conviction – Whether the trial was unsatisfactory and the verdicts were unsafe
Facts: The appellant, Mr Walsh, on the 1st of July 2019, was convicted before the Dublin Circuit Criminal Court of three offences said to have been committed on the 1st of July 2018. These comprised two counts (Counts 1 and 2 respectively) of threatening to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997, and a count (Count 3) of threatening to damage property, contrary to s. 3 of the Criminal Damage Act 1991. On the 25th of July 2019, the appellant was sentenced to six years and six months imprisonment in respect of each of the three counts, the said sentences to run concurrently. The sentences were backdated to the 10th of July 2018, to take account of time spent in custody on remand. The appellant appealed to the Court of Appeal against his conviction. The appellant rested his appeal on the following grounds: (i) in all the circumstances the trial was unsatisfactory, and the verdicts are unsafe, in particular having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the trial judge in respect of same; (ii) the trial judge erred in law and in fact in admitting the statement of Ms Burke pursuant to s. 16 of the Criminal Justice Act 2006; (iii) the trial judge erred in law and in fact in admitting the statement of Ms Beresford pursuant to s. 16 of the 2006 Act; (iv) the trial judge erred in refusing to direct verdicts of not guilty at the close of the prosecution case on the grounds that the evidence was insufficient to ground a conviction and in all the circumstances that it would be unfair to allow the case to be considered by the jury; (v) the trial judge erred in refusing to direct verdicts of not guilty at the close of the prosecution case on the grounds that the evidence in respect of Counts 1 and 2 was insufficient to ground a conviction in that a jury properly charged could not conclude beyond reasonable doubt that the words used amounted to a threat to kill; (vi) having regard to all the circumstances relating to the trial judge’s charge to the jury, including in that the defence case was not adequately put, and in particular having regard to the requisitions put forward on behalf of the appellant, the trial was unsatisfactory and the verdict is unsafe; (vii) the trial judge erred in refusing to charge the jury in respect of Counts 1 and 2 in particular as to the issue relating to whether the words used amounted to a threat to kill; (viii) the trial judge erred in law and in fact in failing to give adequate directions to the jury regarding essential matters relating to the statements admitted under the said s. 16 and the assessment of the reliability of same including but not limited to the fact that the statements were not video recorded, and in refusing to recharge the jury as to whether the accuracy of/reliability of the content of the said statements had been challenged in the trial; (ix) the trial judge erred in refusing to charge the jury sufficiently as to the presumption of innocence and the fundamental importance of same in the context of a criminal trial; (x) in all the circumstances, the trial was unsatisfactory and the verdicts are unsafe.
Held by the Court that it had not seen fit to uphold any of the appellant’s grounds of appeal.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
On the 1st of July 2019, the appellant was convicted before the Dublin Circuit Criminal Court of three offences said to have been committed on the 1 st of July 2018. These comprised two counts (Counts No's 1 and 2 respectively) of threatening to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act, 1997, and a count (Count No 3) of threatening to damage property, contrary to Section 3 of the Criminal Damage Act, 1991.
Counts No's 1 and 2 involving the making of threats to one Amanda Burke, intending her to believe that they would be carried out, that in one instance she herself would be killed or caused serious harm, and that in a second instance her son Jordan Burke would be killed or caused serious harm. The threat underpinning Count No 3 involved the making of yet another threat made to Amanda Burke, intending her to believe that damage would be caused to her family home.
On the 25th of July 2019, the appellant was sentenced to six years and six months imprisonment in respect of each of the three counts, the said sentences to run concurrently. The sentences were backdated to the 10th of July 2018, to take account of time spent in custody on remand. The appellant has now appealed against both his conviction and sentences.
This judgment deals solely with the appeal against conviction.
It requires to be stated immediately by way of background that a complicating feature of the case was that two of the main prosecution witnesses sought, when giving evidence before the jury, to resile from statements they had made to An Garda Siochána. This gave rise to the jury then being asked to retire, to each of the witnesses in question being stood down, and to applications by the prosecution pursuant to s. 16 of the Criminal Justice Act, 2006 (the Act of 2006), for leave to introduce the statements in question before the jury. These applications required the court to hear certain evidence, including further evidence from the two witnesses in question, during separate voir dires. Following each voir dire, the trial judge ruled in favour of the prosecution. The jury was then brought back and heard evidence concerning the making of the controversial statements by the witnesses in question and concerning the contents of those statements, as well as hearing further evidence from the witnesses in question.
Although by no means the sole basis on which the appellant seeks to challenge his conviction, the appellant seeks to argue, inter alia, on this appeal that the trial judge was wrong to admit the witnesses’ disavowed statements in evidence before the jury.
Because the evidence in the case did not unfold smoothly, with evidence being given at different stages both before the jury and in the absence of the jury, and with witnesses being called, then stood down, then called again, then stood down again, it is not the easiest task to sketch the background to the case with clarity and to succinctly summarise the relevant evidence that was ultimately adduced.
To assist in that regard, it is proposed to summarise the case which the prosecution ultimately relied upon, and to rehearse the key evidence presented in support of it. Where the admissibility of evidence was the subject of a challenge or dispute, there will also be a description of evidence given during relevant voir dires.
The prosecution maintained that on the 1st of July 2018, Ms Amanda Burke was present in the home of her partner Darren O'Brien at 304 Tallaght Cross in Dublin 24, and had been drinking heavily. Also present were her son, Jordan Burke, and Mr O'Brien. Ms Burke described herself in evidence as a recovering alcoholic. While at 304 Tallaght Cross, she received a phone call from a number with a 500 in it. This transpired to be her friend, Lauren Beresford, whom she proceeded to invite to the house. Lauren Beresford was the girlfriend of the appellant, Kevin Walsh, but Mr Walsh was not personally known to Amanda Burke and she had never spoken to him at any stage prior to that date. Upon the arrival of Ms Beresford, the pair purchased more alcohol and continued drinking.
During that afternoon Ms Burke received numerous phone calls to her phone from a caller using a phone whose number she recognised, namely the number with the 500 in it from which Lauren Beresford had telephoned her earlier. Upon answering the first of them, having recognised the number, she assumed it was intended for Ms Beresford and handed her the phone. She did not recognise the caller's voice, as Mr Walsh was not known to her, but inferred that it was him from the reaction of Ms Beresford when she passed the phone to her. There were numerous subsequent phone-calls all coming from the same number during the afternoon, with the phone being similarly passed from Amanda Burke, who would answer them, to Ms Beresford. There is no dispute but that the caller on each occasion was the appellant. However, it became apparent that the appellant and Ms Beresford were having an argument, and as the afternoon went on, Amanda Burke became reluctant to continue to pass the phone to Ms Beresford. Ms Burke later suggested that in response to her exhibited reticence about continuing to pass the phone to Ms Beresford, the appellant had become threatening and abusive and that threats were made to her, the import of which was that she and her son would be killed or seriously harmed, and that their home would be damaged.
Then, at a certain point in the afternoon Ms Burke received a phone call from a neighbour to say that her home at 22 Kilmartin Gardens, Tallaght, was being smashed up and that she should come home straightaway. Ms Burke and her son returned home, accompanied by Darren O'Brien and Lauren Beresford, to find that all the windows and doors had been smashed, and that gardai had arrived at the scene. Amanda Burke told Gardaí that she believed she knew who was behind the...
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