People (Attorney General) v Casey (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 21 December 1963
• Date: 21 December 1963
• Court: Supreme Court

Supreme Court.

The People (Attorney General) v. Casey (No. 2).

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

DOMINIC CASEY (No. 2) (1)

Criminal law - Evidence - Visual identification of accused by more than one witness - Dangers involved in accepting such identification - Accused unknown to witnesses prior to commission of offences - Verdict of jury dependent substantially upon acceptance or rejection of accuracy of identification - Judge's charge - Necessity for general warning to jury to be specially cautious in accepting correctness of evidence of identification - Nature of such general warning.

Appeal from the Court of Criminal Appeal.

The appellant, Dominic Casey, was convicted at a retrial in the Central Criminal Court (Henchy J.) on six counts of which the first three charged 1, that contrary to s. 21 of the Offences against the Person Act, 1861, he did on the 20th September, 1959, by means calculated to choke, suffocate or strangle, attempt to render one, David Handyside, insensible, unconscious or incapable of resistance, with intent thereby to enable himself indecently to assault the said David Handyside, a male person; 2, that contrary to s. 62 of the said Act he did on the said date indecently assault David Handyside, a male person; and 3, that contrary to s. 47 of the said Act he did on the same date assault David Handyside thereby occasioning to the said David Handyside actual bodily harm. The remaining three counts were similar in form but related to one, Nicholas Healy. The appellant was sentenced to four years'

penal servitude on each of the counts, nos. 1, 2, 4 and 5, and to three years' penal servitude on each of the counts, nos. 3 and 6, the sentences to run concurrently. The boys, David Handyside and Nicholas Healy, were each about 5 years old on the 20th September, 1959.

At the retrial Ann Snailes gave evidence that she parted from the appellant on the roadway near a gap in a stone wall which formed the boundary of a certain field at about 7.35 p.m. on the 20th September, 1959, and that she saw children, including David Handyside and Nicholas Healy, playing in the field at that time. She said that she had informed the appellant of her intention to return to him near the gap in the wall within a few minutes and that he had agreed to wait for her there and that he was then wearing a fairly long oatmeal-coloured overcoat. She went home and returned to the gap in the wall ten minutes later but the appellant had gone. John Mooney, a boy of about 12 years, stated that at about 7.45 p.m., when it was beginning to get dark, he saw the appellant in the middle of the field walking towards the place where the offences were committed and holding each of the boys, David Handyside and Nicholas Healy, by the hand. He stated that the appellant was wearing a near-white overcoat at the time; he identified the appellant at an identification parade and also in Court at the retrial.

The place where the offences were committed was about 1500 yards across country from the middle of the said field. The boy, Handyside, gave unsworn evidence that he was brought by a man, whom he purported to identify at the retrial as the appellant, from the field to a tree in the grounds of a certain convent where the offences were committed; he failed to identify the appellant at an identification parade. The trial Judge suggested to the jury that the evidence of Handyside should be disregarded, but directed them that if it were to be considered it must be corroborated. Diana Carroll, a young child, gave unsworn evidence that she saw Handyside and Healy in the said field and that she saw the appellant standing in that field near the wall which formed its boundary.

Richard Nohl gave evidence in which he stated that while he was in his house at about 8.45 p.m. on the same evening he heard a commotion in a field, part of the grounds of a convent, at the back of his house. He ran out of his house and entered the field where he found Handyside and Healy near a tree. Darkness had then fallen but he saw a man running away very fast and gave chase but did not succeed in reaching the running figure which was not wearing an overcoat. In the short time that Nohl was with the boys he did not notice any overcoat nearby and no overcoat was ever found in the vicinity. Nohl ran back to his house (passing his wife who went to attend to the boys), where he telephoned the Gárdai and immediately afterwards he drove his motorcar quickly along side roads to the convent gates upon which a man was climbing as he approached. The gates were about six feet high and were constructed of several bars. Nohl rammed the gates with the front of his car but they held fast; however, the shock of the collision threw the man on to the ground within the gates, in a sitting position half facing Nohl who saw the man's face for a moment in the headlights of the car and at a distance of about four yards. The glass of one of the car's front lights was smashed by the...