The People (Director of Public Prosecutions) v Crowe
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards. |
| Judgment Date | 03 February 2015 |
| Neutral Citation | [2015] IECA 9 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [C.A. No. 112 of 2012] |
| Date | 03 February 2015 |
[2015] IECA 9
THE COURT OF APPEAL
Ryan J.
Sheehan J.
Edwards J.
POST OFFICE (AMENDMENT) ACT 1951 S13
COMMUNICATIONS REGULATION (AMENDMENT) ACT 2007 S4(2)
COMMUNICATIONS REGULATION (AMENDMENT) ACT 2007 PART II SCHED 1
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5
CRIMINAL JUSTICE ACT 1984 S4
AG, PEOPLE v CASEY (NO 2) 1963 IR 33
R v TURNBULL 1977 QB 224 1976 3 WLR 445 1976 3 AER 549
DPP v O'REILLY 1990 2 IR 415
DPP v MEKONNEN 2012 1 IR 210 2011/18/4414 2011 IECCA 74
R v FLYNN & ST JOHN 2008 EWCA CRIM 970 2008 2 CAR 20
ORMEROD SOUNDS FAMILIAR? VOICE IDENTIFICATION EVIDENCE 2001 CRIMINAL LAW REVIEW 595
ORMEROD SOUNDING OUT EXPERT VOICE IDENTIFICATION 2002 CRIMINAL LAW REVIEW 771
R v O'DOHERTY 2002 NI 263 2003 1 CAR 77
R v ROBB 1991 93 CAR 161
DPP, PEOPLE v SHAW 1982 IR 1
DPP v COONEY 1997 3 IR 205 1998/4/846
CRIMINAL JUSTICE ACT 1984 (ELECTRONIC RECORDING OF INTERVIEWS) REGS 1997 SI 74/1997 REG 17
CRIMINAL JUSTICE ACT 1984 S7(3)
THOMAS v JONES 1921 1 KB 22 1920 AER REP 462
MCFADDEN & SPARK v HM ADVOCATE 2009 SCCR 902 2009 HCJAC 78
Crime & sentencing – Communications – Sending menacing message – Message sent to Garda –Appeal against conviction and sentence
Facts: The appellant had been convicted of sending a menacing message to a member of An Garda Siochána and had been sentenced to three years in prison. He now appealed against his conviction and his sentence
Held by Edwards J, the other Justices concurring, that the appeal would be allowed. Having considered the evidence admitted by the trial judge, the Court was satisfied that the voice recording evidence was obtained without safeguards against bias and/or errors. The evidence was lacking in cogency, and even the warning given to the jury was not sufficient to protect the appellant”s rights. Considering the case overall, the Court was not persuaded to admit the evidence by exercise of its discretion to do so.
1. This is a case in which the appellant was convicted by the unanimous verdict of a jury on the 7 th of April 2011, following a four day trial in the Circuit Criminal Court, of the offence of sending a menacing message, contrary to s. 13 of the Post Office (Amendment) Act 1951 as substituted by s.4 (2) of and by Part 2 of Schedule 1 of the Communications Regulation (Amendment) Act 2007.
2. The case was concerned with the sending by telephone of a message which was menacing to a member of An Garda Siochána, Detective Sergeant Denis Smith on the 27 th of November 2008.
3. Following his conviction, the appellant was sentenced, on the 19 th of December 2011, to imprisonment for a term of three years for the offence in question, backdated to the 8 th of December 2011, i.e., to the date on which he went into custody.
4. By way of additional relevant background it should be stated that on the same date the appellant was also sentenced by the same court in respect of an offence of endangerment, to which offence he had pleaded guilty. The endangerment offence had been committed while he was on bail in respect of the offence of sending a menacing message, which necessitated the imposition upon him of a consecutive sentence for that offence. The learned trial judge therefore imposed a further three year sentence in respect of the endangerment offence consecutive to the three year sentence imposed for the offence of sending a menacing message, but suspended the final twelve months of that sentence.
5. The appellant appeals against both his conviction and sentence in respect of the offence of sending a menacing message.
6. Detective Sergeant Denis Smith was a member of An Garda Siochána in November 2008, based at Ballyfermot Garda Station. He told the jury that on the 27 th of November 2008 he was at home in bed when, at 07.12 he received a telephone call on his State issued mobile phone, the number of which was given before the jury, and which he kept switched on 24 hours a day.
7. The witness noted that the incoming call was from a private number. He answered it and it was immediately clear that it was a male caller. The caller asked him "Is that Mr Smith?" and the witness said, "Yes." The caller then said: "Robert Smith?" and at the same time as he was saying "Robert Smith" the witness said, "Denis Smith" by way of clarification. The caller then said: "Damien Smith, or anyway it's you that I want" and he then said: "You were up on a cross pointing down at me. I want €10,000 for your murder". There was a pause for a moment and then the caller added: "You're a dead man" and, "I want you now". "Understand". "You're up on a cross".
8. The call terminated at that stage. It had all happened very quickly and the witness, whose initial reaction was shock, claimed that he did not have time to speak other than his own name. The jury later heard evidence in relation to telephone records which established that the duration of the call was 32 seconds.
9. Detective Sergeant Smith interpreted the reference to him being up on a cross as a possible reference to him being viewed through a telescopic sight, and he was alarmed.
10. He then telephoned his immediate superior in An Garda Siochána, Detective Inspector Peter O'Boyle, and reported the incident. Later that morning the witness also recounted what had occurred to Superintendent John Quirke, who was the officer in charge of his district. Detective Inspector O'Boyle ordered an immediate investigation. As Detective Sergeant Smith was the injured party, he was deliberately distanced from the investigation.
11. Detective Sergeant Smith was stood down as a witness at this point but returned to the witness box later in the case to give the following further evidence. He told the jury that on the following day, the 28 th of November 2008, he went to Clondalkin Garda station. At Clondalkin Garda station he was shown a video recording of an interview that had taken place on the previous day between the Gardaí and the appellant. He stated that he immediately recognised the voice of the appellant as the voice that had spoken to him on the previous day on the telephone. He agreed in cross examination that at half seven in the morning, if a person had just got up, that person might be "a little croaky". particularly if "he had been up boozing all night or smoking all night". He further accepted that such a person wouldn't necessarily sound like they would sound in an interview room.
12. The witness stated that he had listened to the recording in Clondalkin Garda Station for approximately 15 seconds, before indicating his recognition of the voice.
13. Detective Sergeant Smith agreed that he knew the appellant before, and that the appellant would have known him. However, when he saw the appellant being interviewed on the video tape, and heard that he had been arrested on suspicion of having made the phonecall, he had wondered what it was all about, as he had had no difficulty with the appellant and the appellant had nothing to do with any case that he was working on.
14. The witness agreed under cross examination that before he heard the voice on the tape he knew the circumstances of the appellant's arrest, and the details of a mobile phone that had been recovered at the time of arrest. However, he added: "But that wasn't what I based the recognition on. The recognition was on viewing the video and listening to the voice" "And it immediately jumped out at me, it is the same voice, it's the same person." Asked if he was 100% certain, he stated: "I am 100% certain that the voices are the same".
15. Detective Sergeant Smith was pressed in cross-examination to identify what it was that made him so certain, and he replied "There's nothing I can put my finger on." Further pressed in respect of this, he accepted that the same words used during the threat were not spoken on the recording, that there was nothing distinctive in the timbre of the voice recording, and that he could identify no particular accent in the voice recording. He described the accent as nondescript. The voice possibly exhibited a Dublin accent but it was not pronounced. He stated: "There is nothing specific in his accent that would have made me think otherwise, think other than that it was him." When it was put to the witness that his capacity to identify the voice was nothing more than his gut instinct, he responded:
| "A. | No, it's not an instinct. No. It is the way that the call was received, the manner of the call - the call was threatening and menacing and it resonated immediately with me, the voice. And I would have recognised that voice certainly after that and, yes, immediately after that without any difficulty at all. |
| Q. | You would have done? |
| A. | I did." |
16. The jury also received testimony from Garda Robert Smith, who is now attached to Rathcoole Garda Station but who was previously attached to Ballyfermot Garda Station. He confirmed that he knew the appellant and had had previous dealings with him.
17. The Jury also heard evidence that at 20.30 on the 27 th of November 2008 Detective Garda Eamon O'Neill in the company of colleagues attended at Room 111 at Bewley's Hotel, Newland's Cross, Dublin 22. These Gardaí had in their possession a warrant to search it. There were four persons present in the room, a female (Miss Kevanne McNamara, partner of the appellant), a 7 year old male child (the son of Miss McNamara and the appellant), the appellant himself, and another male, (a Mr. John Byrne).
18. Upon the Gardaí entering into the room it was observed...
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