Director of Public Prosecutions -v- McCarthy [2015] IECA 44 (02 March 2015)

Judgment


Title:	Director of Public Prosecutions -v- McCarthy
Neutral Citation:	[2015] IECA 44
Court of Appeal Record Number:	175/14
Date of Delivery:	02/03/2015
Court:	Court of Appeal
Composition of Court:	Birmingham J., Sheehan J., Mahon J.
Judgment by:	Court of Appeal
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Birmingham J.
Sheehan J
Mahon J.

Appeal No. 175/2014

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Aaron McCarthy

APPELLANT

Judgment of the Court delivered on the 2nd March 2015 by Mr. Justice Mahon

1. This is an appeal against conviction. The Applicant, Mr. McCarthy, was found guilty of two offences following a four day trial at Dublin Circuit Court on 21st July 2014. One offence was that of Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and the other offence was of taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961. The Applicant also pleaded guilty to an offence of stealing a bicycle. He was sentenced to five years, two years and two years respectively, all sentences to run concurrently; a total period of five years in prison.

2. The facts of the case can be briefly stated as follows. On 13th August 2013 the Applicant hailed a taxi to take him to Spencer Dock. En route two additional passengers joined the Applicant in the taxi. In the course of the journey the taxi driver, Mr. Singh, was punched in the face and his mobile phone, bank cards and cash stolen. His taxi was also stolen. A short while later, the Applicant and another man were arrested by gardaí following a chase on foot.

3. This Appeal is grounded on two separate criticisms by the Applicant of the learned Trial Judge’s charge to the jury.

4. The first ground of appeal concerns an important issue in the trial; the challenge to a garda witness’ evidence that he had found a stolen bank card and money on the Applicant’s person at the time of his arrest. The Applicant claimed that these items were not found on him.

5. In the course of his charge to the jury, the learned Trial Judge, referring to the evidence of the garda witness that he had found these items on the Applicant’s person, stated the following:-

“The single significant attack by the defence on the evidence for the Prosecution is in respect of the finding on the accused man of the banker’s card. And here a proposition has been made that perhaps the garda who found it was in some way seeking to see Mr. Singh right in terms, it is been put to you though not put to the garda and this is something I have a small criticism of, in effect, that he planted the card on the accused man or never found it there at all, that he perjured himself. That’s what is being said, that the garda has come to court to give false evidence.…. Where did they come from? You have to ask yourself, because this is what the defence is putting to you as a proposition that the garda got them at some other location from some other person and decided that he would finger Mr. McCarthy, and not only that but he would put his career and all else at risk by coming into court and giving false testimony, because that is what he is doing. If he is found out his career is gone. You have to ask yourself with good reason, as people of the world, is it likely that a garda officer is going to do simply to see Mr. Singh right….”

6. The basis of the criticism by the Applicant of these comments made by the learned trial judge in the course of his charge to this jury, is that the jury might be prompted or influenced by them to return a guilty verdict, and in so doing indicate their acceptance of the truthfulness of the garda witness, not because they believed him, but rather out of a concern that any other result would be, effectively, a finding that the garda witness had lied in the course of his evidence, and that consequently his career as a garda would be in jeopardy.

7. At the end of his charge to the jury, the learned Trial Judge was advised by the Applicant’s counsel of his concern in relation to this part of the charge. At his request, the learned Trial Judge recalled the jury and redirected them on the point in question. In that redirection, the learned Trial Judge stated the following:-

“I have made the observation to you that a garda officer who would leave himself open to being accused of perjury or fabricating evidence was clearly putting his career on the line. And a fair observation has been made that you might now think that part of your job is to seek to protect him and so find the accused man guilty based upon seeking to protect the garda officer and his career. I have no doubt that won’t occur and as I have said to you in the other context, the consequences of your decision are not a matter of concern for you in your deliberations. That applies even in this context. And I have no doubt, ladies and gentlemen, that you will reach your decision based upon the evidence and the principles that I have outlined to you as to whether or not the State had made its case”.

8. In the course of his oral submissions to this court, counsel for the Applicant contends that this redirection by the learned Trial Judge, following upon the requisition in relation to the point at issue, only served to further emphasise, in the eyes of the jury, the risk to the garda witness’ career in the event that the jury was to return a verdict of not guilty.

9. It is noteworthy, however, that a second requisition in relation to the point in issue was not made to the learned Trial Judge by the Applicant’s counsel nor was an application made to him to discharge the jury in relation to any such concern.

10. This Court is satisfied that it would have been preferable if the learned Trial Judge had not in the course of his initial charge to the jury, made reference to the potential risk to the garda witness’ career if the verdict of the jury indicated its disbelief of his evidence, because of the possibility that the verdict of the jury would be influenced by a concern that an acquittal of the Applicant would, or might, result in the garda officer’s career coming to an end. However, this Court is also satisfied that the learned Trial Judge properly and adequately dealt with the requisition arising from these comments and that his redirection to the jury on the issue was appropriate, reasonable and proportionate. In that redirection, it was necessary for the learned Trial Judge to again refer to his earlier reference to the potential risk to the garda officers’ career if his evidence was disbelieved in order to place it in its proper context, and to ensure that the jury was aware that the redirection related to his earlier remarks, and the concern expressed in relation to them by the Applicant’s counsel. It is difficult to see what more the learned Trial Judge could have said in the circumstances. It is noteworthy that the redirection did not attract any further criticism or expression of concern by counsel for the Applicant at the time.

11. A second ground of Appeal advanced on behalf of the Applicant relates to another matter referred to by the learned Trial Judge in his charge to the jury when he stated as follows:-

“You may have come to the conclusion then in the course of the interview that the Accused man is some ways telling lies, that he is not telling the truth when he is, for instance, says that he was out for a stroll at 2.30 in the morning in the Clontarf area, far from home. The fact that someone tells a lie is not of itself commensurate with guilt. There are many reasons why people might want to tell the truth other than simply trying to hide their guilt, and you need to bear in mind in assessing or attaching any weight to the portions of his interview where you are of the view that perhaps the accused man is simply telling a lie. There are varied reasons for doing that”.

12. It is contended on behalf of the Applicant that these remarks were prejudicial to the Appellant, in that it is suggested that the Applicant may have lied about his reasons for being out at 2.30 a.m.. It was pointed out that there had not been any allegation made in the course of the evidence that the Applicant had lied in relation to this issue.

13. This Court is however satisfied that the learned Trial Judge’s comments were not inappropriate, and in any event were probably in aid of the Applicant rather than detrimental to him, having regard to the fact that almost certainly the Applicant’s evidence that he was out at 2.30 a.m. in a location far from his home is a matter which had the potential to impact negatively on the Applicant in the minds of the jurors. This was not a Lucas type warning such as was discussed in DPP v. Curran [2011] IECCA95. Furthermore, this reference by the learned Trial Judge in the course of his charge to the jury was not the subject of a requisition by counsel for Applicant.

14. The Applicant’s appeal against his conviction is therefore dismissed

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