THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.
259/15
BETWEEN
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
APPELLANT
JUDGMENT of the court delivered on the 13th day of October 2016 by
Mr. Justice Sheehan
1. The principle argument advanced by the appellant in this appeal as to why his conviction should be set aside is that the warning given by the trial judge in respect of the recognition evidence was inadequate. While the focus of the oral hearing remained on this aspect of the appeal, Counsel for the appellant also contended that the trial judge had erred in allowing into evidence three pieces of CCTV footage on the grounds that that evidence’s prejudicial content far outweighed its probative value.
2. The appellant was convicted by a 10:2 majority verdict of a burglary at the Courthouse Hotel, Kevin Barry Street, Ballina, County Mayo. The burglary occurred on 19th May 2015 and the trial concluded on 22nd October 2015 when the appellant was sentenced to six years’ imprisonment.
3. The prosecution evidence depended on the recognition evidence of Garda Taaffe.
4. CCTV footage from the hotel for 19th May 2015 showed a person entering the hotel some time after 5.30am and continuing to the bar area and in due course touching the screen on the till. When the till screen was touched, this resulted in the area around the till being illuminated and allowing for the face of the person to be seen. When Garda Taaffe viewed this CCTV footage, she recognised the person behind the bar as the appellant, Stephen Wilson. She also told the court that she viewed CCTV footage from Ballyshannon garda station which had been recorded at 8.00pm the previous evening, some nine and a half hours earlier, and this showed Stephen Wilson leaving the garda station wearing similar clothing to that which was seen on the person in the CCTV footage from the hotel. CCTV footage from three locations on the same street as the hotel was also viewed. This was from Mulligan’s Pharmacy, a premises close to the hotel; Ballina Motor Factors and Kevin Kennedy Motors, premises across the road from the hotel. Footage from the last two premises did not contain a facial view, but the footage from Mulligan’s Pharmacy, timed within minutes of the hotel entry, did. This footage showed a person looking in the window of the pharmacy. The defendant admitted, through his Counsel, that he had boarded the 6.30am bus from Ballina to Dublin that morning and also admitted that he was the person in the CCTV footage from the pharmacy and the reason advanced for his being in the area at the time was that he was getting the 6.30am bus. Garda Taaffe confirmed that he boarded that bus. In the course of her evidence, Garda Taaffe stated, when asked what enabled her to recognise the appellant:
“Judge, I’m stationed in Ballina for the last seven years. I spend a lot of time on town beat patrol and I’m involved with many members of the community for different reasons. I would know the area very well where Mr. Wilson resides. I know him to see. I know his family to see. I was dealing with his mother previous to this incident taking place. She was an injured party in relation to another incident taking place. She was an injured party in relation to another incident. I know his sisters from the town. His brothers are living in the town also and I recognise him as Stephen Wilson. He resides with his mother in the Brook and has done so on a more permanent basis, I believe, since May last year and would always have visited the Brook to where his mother resides.”
5. In the course of cross-examination, Garda Taaffe was invited to compare the clothing worn by the appellant when he was in Ballyshannon garda station and the clothing worn by the person on the CCTV footage from the hotel. She disagreed with the suggestion to her that the person in the hotel was wearing different clothing to that worn by Stephen Wilson when he left Ballyshannon garda station the previous evening. With regard to the photograph from the pharmacy, Counsel stated in the course of cross-examination as follows:
“It is probably not disputed that’s Mr. Wilson.”
6. This was a recognition case in which Garda Taaffe not only had the benefit of her knowledge of the appellant over at least six months to rely on, but also had available to her CCTV footage from the night before from Ballyshannon garda station as well as a still from the pharmacy conceded to be the appellant. This still from the pharmacy put the appellant outside that premises near the hotel minutes before the hotel was entered.
7. The question for the jury was whether or not they could rely on Garda Taaffe’s evidence of identification. In the course of his charge to the jury, the trial judge stated:
“But there is one question for you to answer: have the prosecution proved beyond reasonable doubt that Stephen Wilson, the accused, entered the Courthouse Hotel on this night, or the early morning, as a trespasser and when he was there committed the arrestable offence of theft?” The evidence linking the accused with this is contained in the CCTV coverage and the still photographs that were shown. The accused was recognised by Garda Caroline Taaffe. That is the evidence she gave when she viewed the CCTV at the hotel later that morning and she also recognised the accused in CCTV clips that she viewed later, but that were in fact earlier in time than the hotel. She viewed them at the garda station and then she went to talk to the people in the pharmacy and look at their CCTV TV and then the people at the garage and the motor factors across the road.
Now, evidence of recognition, by which I mean evidence of a witness who knew a person previously and here that is the evidence given by Garda Taaffe, and that, is that she recognised the accused. That may be more reliable than the evidence of a person who sees a person for the first time. People can still get it wrong. Such evidence has to be carefully considered. If you find that you can rely on the evidence of Garda Taaffe that she recognised the accused, ask yourselves, is there a reasonable chance that she might be mistaken? Consider the circumstances. How clear was the opportunity to recognise the accused when Garda Taaffe said she recognised him from the CCTV? Clearly, that CCTV ran for, I suppose, the best part of an hour and it is for yourselves to judge, based on what you saw, how good was her opportunity to recognise the accused from that? How well did she know him at the time? We will all be familiar with famous cases where people have been mistakenly identified. Many witnesses in the past, doing their honest best, have identified persons who have been convicted on the strength of their identification and their identification has later found to be mistaken, so be careful. Be careful when you are considering that evidence.”
8. Counsel for the appellant contends that this warning was inadequate and failed to contextualise the warning and lacked solemnity. In the first instance, we note that there was no requisition from defence Counsel following the judge’s charge. Leaving aside the question as to whether the appellant’s new legal team ought to be allowed to argue this ground, we are nevertheless satisfied that the warning given by the trial judge was entirely adequate to the circumstances of this case. This was a strong case of recognition evidence and the warning given by the trial judge met the circumstances of the case in a manner that was entirely adequate and resulted in no unfairness to the appellant.
9. We see no merit in the arguments raised concerning the trial judge’s ruling in respect of the CCTV footage. This footage, when linked together, provided circumstantial evidence showing, in the first instance, that the appellant was the person in the pharmacy footage (this was conceded by the appellant in the course of the trial). The proximity in time and place of the other footage, although no visual identification was possible, raised a strong likelihood that it was the same person in each piece of CCTV footage. These three pieces of CCTV footage, being close in time and location, comprised, in our view, relevant admissible circumstantial evidence.
10. Although this was a short trial, it was conducted in exemplary fashion and a careful reading of the transcript confirms us in that view.
11. Accordingly the appeal against conviction is dismissed.
