People v Prunty

• Jurisdiction: Ireland
• Judge: McCARTHY J.
• Judgment Date: 15 May 1986
• Neutral Citation: 1986 WJSC-CCA 568
• Docket Number: 16/85
• Court: Court of Criminal Appeal
• Date: 15 May 1986

1986 WJSC-CCA 568

COURT OF CRIMINAL APPEAL

McCarthy J.

D'Arcy J.

Egan J.

16/85

DPP v. PRUNTY

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

EUGENE PRUNTY

Citations:

AG V HURLEY & WOOLFSON 71 ILTR 31

AG V RUTTLEDGE 1978 IR 376 1 FREWEN 75

BANKERS" BOOKS EVIDENCE ACT 1879

COURTS OF JUSTICE ACT 1928 S5

COURTS OF JUSTICE ACT 1928 S5(1)

COURTS OF JUSTICE ACT 1928 S5(1)(a)

DPP, PEOPLE V CAMPBELL 2 FREWEN 125

MYERS V DPP 1964 2 AER 881

R V ROBERTSON 25 CAR 208

R V THOMPSON 1914 2 KB 105

Synopsis:

EVIDENCE

Identification

Voice - Hearsay - Tape recording of accused's telephone conversation - Accused's voice identified by witness who knew accused - Accused convicted on counts of false imprisonment and demanding money by menaces - Corroborative circumstantial evidence placing accused in vicinity of telephone from which relevant calls made - Proof of the tracing of relevant telephone calls based partly upon hearsay evidence - Prima facie ample other evidence to support convictions - Jury having heard accused's voice when he gave evidence - Refusal of court to dismiss appeal under s.5(1) of Act of 1928 on basis that no miscarriage of justice had actually occurred - Held that court would not invoke s.5 of Act of 1928 unless it was satisfied that the jury, in arriving at their verdicts, had not taken into consideration inadmissible evidence - Held that the court was not so satisfied and that, accordingly, the convictions should be set aside and a new trial ordered - Courts of Justice Act, 1928, s.5 - (16/85 - C.C.A. - 15/5/86) - [1986] ILRM 716

|The People (D.P.P.) v. Prunty|

1 JUDGMENT delivered on the 15th day of May 1986 by McCARTHY J.

2 On the 10th August 1983, William Sommerville was taken by force from his home at Enniskerry, Co. Wicklow and held for a period of approximately twenty four hours during which, following a series of telephone calls, a ransom for his release was deposited at a quarry near to his home and information was given as to where he might be found. Michael Boyle and Eugene Prunty, the applicant, were both charged with offences arising out of the incident; Michael Boyle pleaded guilty and has been duly sentenced; the applicant pleaded not guilty and was tried over a number of days by a jury in the Dublin Circuit Court before His Honour Judge Dominic Lynch. He was convicted of both offences charged in the indictment and was sentenced to ten years imprisonment.

3 The prosecution case took two forms, the identification of the applicant's voice as recorded on a tape made from a telephone call to the Sommerville home at 5 p.m. on the 11th August, in which call the caller gave directions as to the payment of the ransom money, and, further, evidence as to the continuous association of the applicant with Michael Boyle during the morning, afternoon and evening of the 11th August and his presence at or near the telephones from which five other calls were made to the Sommerville residence all related to the demand for and payment of ransom. These two methods of establishing guilt were both independent of and inter-dependent on each other. The Court accepts that the applicant could properly have been convicted on both counts of the indictment on the tape identification alone or on the circumstantial evidence from the association with Boyle at the several critical times.

4 It is contended on behalf of the applicant that

5 (a) the "tracing" of the incoming calls to the various telephones around the town of Bray at or near to which Boyle and/or the applicant were at the critical times was established, in part, by hearsay evidence. The method of tracing the calls was examined in depth, in the absence of the jury, when objection was taken to the admission of the evidence of James Loughman on these grounds. It is not clear on what basis the learned trial Judge failed to hold that there was an element of hearsay in the chain of proof. Counsel for the Director, in this Court, has not sought to contest that there was this element of hearsay but has asked this Court to adopt what might be termed the somewhat robust attitude taken by Lord Pearce and Lord Donovan, in the minority, in Myers v. Director of Public Prosecutions 1 (1964) 2 All E.R. 881. It may be, as in Myers" case, where the essential witness cannot be obtained, the Court should feel obliged to admit records, albeit hearsay, but there is no evidence that such is the case here. At first sight, in any event, it would seem that a means of proof analogous to that of the Bankers Books Evidence Act would require the intervention of the Legislature.

6 The Court does not accept, as was submitted, that this evidence of tracing was vital; there was ample other evidence to support the conviction, but the matter does not rest there.

7 The identification of the applicant's voice on the tape of the 5 o'clock telephone call was clear and unequivocally made by Detective Garda Lambe. It was, however, subject to the

valid criticism, not as to admissibility but as to...