People (Attorney General) v O'Driscoll
1965 WJSC-HC 461
JUDGMENTdelivered 3rd March 1972Walsh J.
The applicants have applied for leave to appeal against their convictions and against the sentences imposed. They were convicted in the Circuit Court at Cork on June 17th 1971 on counts of robbery with aggravation, robbery with violence and assault with intent to rob and of house-breaking and larceny.
???query?????? offences arise out of the same incident when the dwellinghouse of the William Butler at Carhue, Berrings, in the County of Cork was entered by men armed with a shotgun and William ???query??????tler was robbed of the sum of £20. During the course of the robbery violence was used upon William Butler.
The two applicants were jointly indicated with a third, one Patrick O'Driscoll, who was acquitted by the jury on all counts. Four men took part in the robbery. On the count of robbery with aggravation the two applicants were sentenced to nine years penal servitude each and to six years penal servitude each in respect of the count of robbery with violence and to three years penal servitude each on the count of assault with intent to rob and four years penal servitude each in respect of the count of house-breaking and larceny and to twelve months imprisonment with hard labour each in respect of the conspiracy count. All the sentences were ordered to run concurrently. The judge refused the application made at the close of the trial for a certificate for leave to appeal. The applicants have now applied to this Court for leave to appeal against the conviction and against sentences.
The grounds of application for leave to appeal are identical in both cases and the applications were heard together in this Court.
There was no dispute as to the fact of the robbery or as to the methods employed by the persons involved. The real basic point of the application for leave to appeal in each case is the claim that the only evidence implicating the applicants was evidence of identification and their criticism was directed against the judge's conduct of the case and his directions to the jury before they retired is aimed at his treatment of this subject. It is also alleged that the evidence falls short of what is required to establish identification.
The first ground of application for leave to appeal was in respect of the alleged failure of the trial judge to discharge the jury after the opening address of counsel for the prosecution. The transcript reveals that at the close of counsel's opening address at the commencement of the case counsel for the defence asked that the jury should retire while he made an application to the trial judge. When the jury had retired counsel took objection to the content of the prosecution's opening address on the ground that it contained a number of inaccuracies but in particular took objection to it because it was alleged the address in fact invited the jury to bring in a verdict of guilty irrespective of the evidence for the purpose of setting an example which would deter law breakers and potential law breakers in Cork. The transcript does not contain the content of the opening address. Counsel for the prosecution has denied that his address was capable of any such interpretation. It is to be noted that while counsel took this objection at the trial the objection developed substantially into one complaining about the prosecution's opening account of the evidence to be offered particularly in relation to identification. Counsel did not ask the jury to be discharged and a dialogue with the judge ensued which really turned upon the question of how the evidence of identification would be tested during the trial. The judge appears to have given a preliminary ruling that certain type of evidence would be admissible. That is not the relevant to the present ground of appeal. The jury was recalled and the case proceeded. In the view of this Court this particular ground of appeal fails. Firstly, it is not established that counsel for the prosecution invited the jury to do anything so improper as is alleged and, secondly, it is not established that he invited them to do anything improper in any area of the trial. Thirdly, even if such an approach to the case had been encouraged by the opening address to the jury it would not necessarily follow that the jury must be discharged and the Court would have to see how the learned trial judge dealt with the matter if and when it arose. As the Court is not satisfied that any such position did arise it is unnecessary to speculate on the latter aspect.
The two applicants are itinerants or members of what is sometimes called the itinerant class but it does not appear from the evidence whether they are actually engaged in travelling. A complaint made about the conduct of the trial was that the judge in some way permitted the fact that the applicants were itinerants to creep into the evidence or to colour the case in a way which has caused them to be the objects of discrimination at the trial. Needless to say if any such position were disclosed in the transcript or otherwise established to the satisfaction of this Court the conviction would be quashed without hesitation on the grounds that the trial violated the provisions of Article 40 section (1) of the Constitution. It is, however, necessary to say quite clearly that there is not the slightest shadow of suspicion that any such course was permitted by the judge or that any such factor weighed in the trial. It was counsel for the defence in his cross-examination of the victim of the robbery who put it to him that in his mind itinerants would be the number one suspects in any event. This the witness denied and the matter was cleared up by the judge's intervention to point out that what the witness was saying was that he never thought of itinerants as a class being responsible for the offence but that he was claiming to identify particular individuals with whom he was acquainted and who in fact happened to be itinerants who resided fairly close to the scene of the robbery and were individuals with whom the victim had been fairly well acquainted. On further cross-examination the witness denied firmly and clearly that he identified the accused simply because they were itinerants but because he was personally acquainted with them and recognised them as being two of the four robbers. In the course of his charge to the jury the learned judge never once referred to itinerants or to the fact that the accused were itinerants. This ground of complaint is wholly unjustified.
The main ground of application for leave to appeal in this case is the complaint that the trial judge failed to direct the jury adequately on the law as to the dangers inherent in identification. The robbery took place at 2.30 a.m. in the early morning of the 6th January, 1971. There was no electric lighting in the house in which the victim and his sister reside. Having heard the noise of footsteps in the house the sister woke the victim and he got out of bed and went down-stairs. When he come downstairs a man with a gun called out "Hand out your money with the point of the gun."(sic) The victim was on the stairway at this point. The demand was accompanied by giving the victim a few jabs in the chest with barrel of the gun. It was a double-barrelled shotgun. Another man said "Perk it cut very quickly, every penny of it." The victim was carrying a bicycle battery lamp which he had switched on and he said the robbers had with them a very powerful torch. The victim claims he recognised the applicant, Michael O'Driscoll, although he was wearing a mask, by the way he spoke as he had known him for some years past and he claimed he could also identify the colour of his hair and he said Michael O'Driscoll had the gun. The victim in his evidence stated that the robbers numbered four men and that they shuffled around the place searching for money in presses and places like that. The witness also claimed to recognise another one of the robbers when he spoke but he is not one of the applicants and was not one of the three tried at Cork. He was one of those charged in the indictment but he failed to appear for his trial. The witness subsequently identified the applicant Thomas O'Driscoll as one of the robbers and the one who struck him in the eye....
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