Judgment
Title: | Director of Public Prosecutions -v- McDonnell | Neutral Citation: | [2018] IECA 189 | Court of Appeal Record Number: | 18/2014 | Date of Delivery: | 20/06/2018 | Court: | Court of Appeal | Composition of Court: | Birmingham J., Mahon J., Edwards J. | Judgmentby: | Mahon J. | Status: | Approved | Result: | Dismiss | | |
THE COURT OF APPEAL
Record No. 18/2014 Birmingham P.Mahon J.Edwards J.BETWEEN/THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT APPELLANT
JUDGMENT of the Court delivered on the 20th day of June 2018 by Mr. Justice Mahon
1. This is an appeal from a murder conviction on the 24th January 2014 by a jury following a nine day trial in the Central Criminal Court before Carney J.
2. The murder victim was Melanie McNamara aged sixteen years. On the 7th February 2012 she was travelling as a back seat passenger in a car being driven by Sean Byrne. Her boyfriend, Christopher Moran, was travelling in the front passenger seat of the car. As the car stopped or parked outside an address in Tallaght, Co. Dublin another vehicle pulled up alongside and up to two shots were fired from that vehicle into the car in which Ms. McNamara was travelling. One of these shots struck her in the head, fatally injuring her.
3. Subsequently gardaí found the abandoned vehicle and a shotgun close by. Both were subjected to forensic testing but nothing of any probative value was found.
4. Based on information received, the gardaí identified the appellant as a suspect. He was arrested on the 16th February 2012, just over a week after the murder, and was detained pursuant to statute from that date until the 21st February 2012. He was interviewed within this period of time on twenty one occasions but answeredno commentto all questions put to him.
5. While detained, the appellant wrote graffiti on his cell wall, including the words “two in the head, your bitch is dead, ha ha”, “Danno McDonnell”, “Morons scummy knacker” and “Morons scrums”. This graffiti was photographed on the 20th October 2017.
6. Following his release from statutory detention on the 21st February 2012, the appellant remained in custody in St. Patrick Institution in relation to an unrelated matter. Whilst there, he wrote two letters, one to an ex girlfriend, Stephanie Tuite, and the other to a friend, Lee McDonnell. These letters were, in the ordinary way, read by prison authorities in St. Patricks Institution on the 5th and 6th March 2012, and, because of their content, were handed over to An Garda Síochána on the 7th March 2012. Fingerprint and DNA evidence also connected the letters to the appellant, and furthermore, he admitted in the course of his evidence at trial that he had written the letters. These letters were subsequently relied upon by the prosecution as admissions against interest.
7. A number of grounds of appeal were originally filed on behalf of the appellant. These have been reduced to three main grounds, being as follows:- The letters8. An application was made on behalf of the appellant to exclude from the trial as inadmissible evidence the letters written by the appellant to Stephanie Tuite and Lee McDonnell on the basis that they were unreadable, and a voir dire was conducted in relation to that issue.
9. The letter to Ms. Tuite read as follows:- “Daniel McDonnell, B3, 17 Friday
Stephanie Tuite
[Address]
WHATS UP, Stephanie. Sorry to hair about your nanny. I’m praying for her and your mam your probley going mad im writing this letter I just had to talk to you I still love you to bits yeno im sorry for every ting I put you tru [something blocked our as corrected] my writing is in bits as you can see Ha tell Karen Craig Anto your Mam and Dad I said Hello they probley hate the guts of me it wouldn’t be anything new cause I hate me self. I fucked every thing up the one person I ever loved is gone Im hoping and praying I can get you back. I never taught it would turn out like this I don’t know how Im still going with out ye its riping me apart I feel like a scum bag well I don’t feel it I am one I don’t know what got into my head its fucked my brain must be the size of a pee that weed shit fucked my up and them Jack and Jills. Im sitting in my cell Im on 23 hour lock up so thers no drugs atall in my system. Im tinking of the good times I had with ye will do me [somebody blocked our as corrected] a favour and get out there and enjoy yourself go dancing with the girls get locked out of your head I tell you the man that gets you will be very lucky your as loyle as they come. You’re a gift in my eyes love I hope your doing some ting with your self and not siting on that ars of your as your mam would say HA HA Look its ok if you don’t want to write back I had to write to you to get things off my head I hope we can get back talking and stuff well Stephanie I have to go now still love you to bits I don’t stop tinking of you hunny Good Bye For Now xxxxxxxxxxxxxxxxxxx
LOVE The one and only
DANO McDONNELL
The MC will be back with a wack [hand drawn heart]
I was talking to Duff today if you ever need anything he said get his num off Sharon Hell. Look after yourself when you do favours for people you get a lot of respect baby.
One more ting that other ting wouldn’t of happen if I hadanoing she was in the car it was ment for that other smell bag.
I’m the only 1 who stuck it back up to them rember that a big smile on my face.
He won’t get away with bullying my ma. Let me tell you that. What goes around fucking comes around. Rember that baby girl.
[hand drawn Character Smoking]
Life goes on…. B3. For Life. Fuck it.
If you want to see me your on my visiting card love. Remember that please. It wood be good to see you. Keep safe.
[hand drawn arrow from hand drawn character to the following text]
I wish that was me the only think ill be smoking is a roll up he he
I hope you done leave me behind [sad smiley face]
Love you baby girl no matter what happened
I remember the first time I kissed you like it was yesterday [happy smiley face]
Dano McDonnell and out
Ill never forget him roring. Like a girl crying. Bang bang. Get up.
Good by xxxxxx
Xxxxx Be a good girl hahaha 4 me
10. The letter to Mr. McDonnell read as follows:-“Daniel McDonnel;, B3, 17
What’s up MC10 your little bro her ha ha. The Big MC. Lol. Hows the head. I’;; tell you did my head was spinning on that J stoned out of me head I was. Buzzin off the officer to bits on the way home. Ha doing it balls rough on Poxy landing cant wate to get a transe fair to a diffrant prison pack of [correction made] clowns in her ill gut Any I who come in my way that block Jays a fool he told me he would send a few sweets over still waiting on them. Don’t think he believe im your little bro haha will you do me a favour and write him a letter tell him im your brother ill get nutting if you don’t did. Keep running all them upo on to protection cause dis war aint stopin take my work for it close range head shots that what im going for like..If I get high court bail I swear on my hole family them 4 will be in the ground I ran CM with his head up his arse…gwon HAHA 2 in the head the bitch is dead. The silly mother fuck pulled out a hammer little did he no I had a loaded 12 gage left his bitch was all over the Sunday world front page ha ha cryste met crew HAHA gwan the lads what MC10 ill never for get that mum roran the best nit of my poxy life bro keep your head up for me will you well make a few plan to clear all them out Fuck the fall out Soon anuff we will be running Tallaght bro trust me Pack of bitches up der all of them HAHA show them the McDs run the show. Now I else Stop man rember you cuming in the door of the pad with your bitch at like 10 in the morning on [correction made] a vest and a pair of shorts out of your bicky I was with some lil slut HAHA the bitch riped me apart that nite Best sex I ever had HAHA write Lee [corrections made] My hand is going To fall off bro make sure you write back to your little brother. Look aft your [correction made] self bro
Aka
[correction made] tell the 2 keiths I said get a pen and paper out and start writing a poxy letter its not hard yeno talk toye soon bro.
Make sure you write back keep in touch bro [arrow drawn directing to next page]
KEITH DANO [insert picture of cross on coffin later]LEE MCD CREW
Look after Keith Lee He’s a McDonnell now And tell WD I said he wants war oh hell get it believe me the fatnacks
This letter is sitting in my Cell [correction] since Wednesday Bro Class officer won’t give me a poxy emblobe
You you me and Keith on the [unintelligible]
McDonnell Boys running the kip Gwan
HAHAHA
11. Lengthy submissions were made to the learned trial judge in relation to the issue of the letters’ reliability. In the course of those submissions, Mr. Marrinan SC, counsel for the appellant stated:-“But if I come to the real issue and to define the real issue in relation to this. And the real issue is that in this case the prosecution is relying entirely on the confessions. There is absolutely not a scintilla of evidence implicating the accused outside these two documents that are set out in the book of evidence. And it's against that background that the application is made. And then when one views the expressions of elation and joy and bragging of what occurred to Melanie McNamara, they create an environment that is highly prejudicial to the accused but in fact are probative of nothing because they don't involve an admission of actually killing her. And therefore the Court must look in my respectful submission at the actual documents and to see where the admission stems from to make it admissible as something more than just simply an expression of satisfaction that this has occurred, and one then has to look at the two letters.”
12. In his replying submissions, Mr. Grehan S.C., counsel for the prosecution stated:“And what the prosecution are saying is that the three items of evidence which it puts forward against Mr McDonnell, the graffiti in the cell, combined with the contents of both of the letters, are such that a jury could reasonably conclude that they are admissions to involvement in this particular offence. And the fact that the accused now says that he was stoned and he doesn't remember something incidentally that Dr Gargan does not accept as a basis on which he could not recall, or that he said them because he was trying to impress a friend or woo a girl, they are subject to an interpretation being put upon them by the jury which is, I would submit, at variance with the wording of the letters themselves. So, on their face, in my submission, they are clearly probative of the matter which the prosecution are seeking to establish. It is a matter of credibility and really reliability of any explanation that is given in terms of whether there is an alternative interpretation, and I would submit that the form of the letters, the manner in which they are written, do not suggest the interpretation which is contended for, albeit as one of a number of alternatives, by the accused. And in circumstances where there are not in fact confessions, these are letters written in private, it is now the case that it's been suggested that Mr McDonnell must have known in some way that they were going to find their hands into the gardaí. I think it was a significant matter when Mr McDonnell in the witness box said his face dropped when he was rearrested and these letters were shown to him.. .”
13. The learned trial judge expressed his satisfaction as to the reliability of the letters as evidence when he said:-“This is a trial by jury. It's not trial by ambush before the trial judge. I accept that I have a discretion to exclude this evidence. I also accept that circumstances could make it a positive duty on my part to exclude it. So far as reliability is concerned, I, as a single juror, would find the evidence reliable and it's a matter for the jury in this case to decide whether they find it reliable. And the matters pursued before me can be pursued before the jury, and that is, in my belief, the proper place to pursue them. I take account of the fact that the accused during his arrest had all his rights and entitlements vindicated. He was advised of his right to a solicitor. He had an appropriate adult present at all times during the interviews. Some of the questions put to him, I would accept, were improper, but that is really of no consequence in the overall scheme of things.
So far as the material the prosecution is relying on, this was his authorship in the certain knowledge that it was going to be read by the authorities. In the case of one of the documents, his certain knowledge was that it was going to be read twice. It was written in expressive terms, which indicated he had quite a clear command of language. Some of it was expressed quite poetically, and indeed that was the sicker parts of the material which I have to consider. I would come to the view that the material proffered is reliable. Now, there is -- attention is drawn to certain things like the hammer and so forth. Not everything in any case is going to hold totally together, and if it does, there are allegations that that's a foundation for the proposition that there is something wrong.
It's entirely a matter for a jury to adjudicate on these matters. I do not find that there is a situation where I am bound to exclude to it. I'm not disposed to exclude it and I don't.”
14. The ruling is criticised by the appellant on the basis that the learned trial judge expressly approached his task of making a determination on the reliability issue from the position of a juror and not as a judge, and the functions of each were different in such circumstances.
15. There are many examples of evidence which if heard by a jury would reasonably and understandably sway it towards a verdict of guilty but which is not admitted because a trial judge properly excludes it. It is undoubtedly the case that the functions of judge and jury are very separate and different particularly in circumstances where at issue is the admissibility of particular evidence. It is extremely unlikely, indeed inconceivable, that an experienced trial judge (as was Carney J. at the time) would not have been fully conscious of the distinction and operated accordingly.
16. The issue of the reliability of the letters and, more particularly, the ruling in support of their reliability made by the learned trial judge, was the subject of wide ranging submissions made on behalf of the appellant to this court. These included the contention that the learned trial judge failed to carry out his function in making a decision in relation to the reliability of the letters and that in particular a number of factors were insufficiently taken into account by him, including the circumstances in which the letters were written, the appellant’s history of drug abuse, his personal characteristics and level of educational and emotional intelligence, the nature of the questioning to which the appellant was subjected while in custody, his inability to process information, his susceptibility to suggestibility, his poor self image, the explanation given by the appellant as to his reasons for certain things said in the letters, the lack of corroboration, the lack of protection/safeguards at the time the letters were written, the lack of “insider knowledge” detail in the letters, the inconsistencies between the content of the letters and other evidence, general awareness of the phenomenon of false confessions and whether the probative value of the letters outweighed their prejudicial effect. Furthermore it was maintained that the learned trial judge’s decision was also deficient because of a lack of reasoned grounds provided by him in relation to his decision deeming the letters to be reliable.
17. The remark by the learned trial judge to his acting as asingle juroris the subject of particular attack by the appellant. The point is made that the jury has no role in determining whether evidence is admissible where its admissibility is challenged. It is however important to consider the learned trial judge’s admittedly brief ruling on the issue of the reliability of the letters in the overall context in which that particular issue was dealt with including the very lengthy and detailed submissions made on the issue.
18. While a more detailed ruling from the learned trial judge would have been preferable and certainly would have made the task of this court easier in its review of it, there is in fact no requirement for detailed rulings to be made in response to applications made in the course of a trial. In the case ofDPP v. Campion[2015] IECA 274 this court touched on that very issue in the course of its judgment delivered by the then President. At para 54 of that judgment it is observed:- “54. As has been said on many occasions, there is no requirement for a discursive judgment. What is required is that the parties will know why they have won or lost, and an appellate or review court will know on what basis the decision has been made. Judged by these criteria, the remarks made at the time of the ruling were indeed sufficient”.
19. The issue under consideration in Campion concerned the admission into evidence of certain statements pursuant to s. 16 of the Criminal Justice Act 2006, and in particular the issue of the reliability of those statements. The trial judge was the same trial judge as in the instant case and he also referred to his approach to making a determination in broadly similar terms when he stated that he wasviewing this matter as a single juror…
20. A closer examination of the brief ruling in the instant case however undoubtedly suggests that the learned trial judge was fully conscious of his judicial role and how it differed to that of the jury. He said, for example,“I accept that I have a discretion to exclude this evidence. I also accept that circumstances could make it a positive duty on my part to exclude it”. He explained why he considered the letters to bereliable. He referred to the appellant’s rights and entitlements while in custody having beenvindicated. He referred to the fact that the appellant was advised of his right to a solicitor and that he had an appropriate adult present at all times during interviews. He expressed his belief that the letters were written by the appellant in the knowledge that they would be read by the prison authorities. He noted that they were written in expressive terms, indicating that the appellant hadquite a clear command of language. It is clear that the decision made by the learned trial judge was not one made off the cuff or in the absence of a considered analysis of all relevant factors and the submissions made by both sides. His brief ruling clearly referred to matters which had particularly struck him as supporting the reliability of the letters. He expressed in clear terms that he found the letters to be reliable and that in those circumstances he was not prepared to exclude them. He said that it would ultimately be a matter for consideration by the jury as to whether they were in fact reliable.
21. The issue ofreliabilitywas considered inDPP v. O’Brien[2011] 1 IR 273, albeit it in the context of s. 16 of the Criminal Justice Act 2006 in circumstances where a young child resiled from what she had said at an earlier stage about abuse to which she had been subjected. In his judgment, Macken J. stated:- “It seems relatively clear that the Act, in requiring that the statement be found to be "reliable", appears to mandate the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true.”.
22. In the instant case the task that fell for decision to the learned trial judge was to determine if the letters in question had been written by the appellant on the basis that what he stated in them was the product of his own unfettered mind and were matters which he intended to state at the time. Issues as to the truthfulness of the statements made or of the message conveyed in the letters or the reasons that prompted the appellant to make them were matters which were properly left to the jury for deliberation.
23. In these circumstances, the court is satisfied that the ruling made by the learned trial judge as to the reliability of the letters was correct and one certainly available to him to make based on the evidence and submissions heard by him. Ideally, as has already been stated, his ruling might have been more detailed and his reasoning given greater explanation.
24. The second leg of this ground of appeal relates to the legality of the seizure of the letters addressed by the appellant to his girlfriend and his friend. It was submitted on behalf of the appellant that his right to privacy had been breached and the confiscation of the letters breached his right to free communication. Mr. Fitzgerard B.L., counsel for the appellant submitted to the learned trial judge,inter alia:- “So, from the above, I say, in my respectful submission, that I can say with little fear of contradiction that there is a right to communicate and that that is a right which may survive a prisoner's incarceration. It can be limited, but any such limitations must be closely scrutinised, must be proportionate, must go no further than necessary and must be in accordance with the rules. And it is against that background that I say the Court should look at the 2007 prison rules, which I have included in the book, and rule 43 provides that "subject to the provisions of these rules, a prisoner shall be entitled to send letters to his or her family or friends and to receive as many letters as are sent to him or her by his or her family or friends." Rule 45 provides that "a letter given by a prisoner for sending may be opened and examined by the governor, and he or she may confiscate the letter or any article enclosed therewith if he can or she can given certain grounds." …and that in my respectful submission, comes within or is at the very least highly relevant to, the strict construction that, in my respectful submission, should be imposed on any interference with rights…”
25. The learned trial judge ruled against the appellant in relation to this aspect, (being read and handed to the gardaí).“Very good, I don't see the slightest pick of reality in the argument that has been advanced in objection to the admissibility of these letters. The letters were written and handed over in the expectation, indeed in the certainty, that they were going to be censored. When they were, the guards came - the prison authorities came across material which they suspected could be of relevance to the solution of a particularly grave crime, the effective assassination of Ms McCarthy. And in the old days, I suspect, and not very long ago, I suspect, they would have been committing a felony themselves if they hadn't handed them over. I don't think their entitlement or duty to hand them over in these circumstances has been modified in any way by the abolition of felonies and misdemeanours in our legal architecture. The letters, it seem to me, were properly handed over. They are probative, relative - relevant, and there was no, as Mr Grehan put it, trick or guise or inducement involved in relation to the procuring of this evidence. This evidence was gratuitously handed over by the accused man to the prosecuting authority in the knowledge that they would be read. The evidence is admissible.”
26. The circumstances in which the letters were written and handed to prison staff by the appellant were as follows. On the 5th March 2012 the appellant was in custody in St. Patrick’s Institution. The appellant handed both letters to a prison officer in unsealed envelopes. This was standard practice as it was known generally by persons in custody that prison regulations required that all prisoners’ correspondence was checked, and censored where necessary. The 2017 Prison Rules (made pursuant to s. 35 of the Prisons Act 2007) provides in Rule 45 the following:-27. Rule 76(6) of the Prison Rules provides that:-“ In the absence of the Governor, Deputy Governor or Assistant Governor, the Chief Officer or in his or her absence the senior Assistant Chief Officer, to whom such a role is normally assigned, shall have charge of the prison unless another officer has been designated these functions.”
28. It is clear from the foregoing Prison Rules that a prisoner’s right to privacy is restricted in relation to the sending and receipt of correspondence. It is clear that designated prison staff are entitled to read outgoing and incoming correspondence of persons in custody. Prison Rule 45(1)(e) is undoubtedly relevant to the circumstances in which the appellant’s correspondence was read and provided to the gardaí in that both letters“..would facilitate…the..detection, investigation or prosecution of a criminal offence”. Furthermore, the appellant was aware that the letters would be read by prison staff.
29. The court was referred to its own decision inDPP v. Michael Harty[2016] IECA142. The subject matter of that case were medical records of an individual who was prosecuted and convicted of dangerous driving causing death. The following extracts from the judgment of this Court, delivered by Edwards J., are particularly apt in the context of the instant case:- “..His (the appellant, Mr. Harty) was no more than to expect that his records would not be disclosed, save where that was required by exigencies of the common good…
The exigencies of the common good include, undoubtedly, a public interest in the prosecution of persons suspected of having committed serious crimes and the need for the gardaí to gather evidence to facilitate and support such prosecutions…
We are satisfied that in the circumstances of this case, the appellant’s claim that his constitutional right to privacy was breached in respect of the toxicology report at issue is defeated by the overriding public interest on foot of which the gardaí were under an obligation to properly investigate the suspected serious crime of dangerous driving causing death and to gather evidence relevant to that investigation. To the extent that the garda action may have interfered with the privacy of the appellant, it was a proportionate interference having regard to the greater public interest and was necessary in the circumstances of the case. Equally, any claim by the appellant to confidentiality in the said record must also fail for the same reason. We are satisfied that in the circumstances of the case, the appellant’s consent was not in fact required for the release of the toxicology report to the gardaí.”
30. Furthermore, arguably, a failure by a member of the prison staff to hand over the letters to the gardaí would have left them open to prosecution pursuant to s. 19 of the Criminal Justice Act 2011. It provides as follows:-31. Section 19(2) provides for a maximum prison sentence of a person found guilty under this section of five years imprisonment.
32. The court is satisfied that the handing over of the letters by the prison authorities to the gardaí was appropriate and lawful. The ruling given by the learned trial judge in this respect was entirely appropriate.
Application for a direction
33. An application was made on behalf of the appellant to the learned trial judge to withdraw the case from the jury on the basis of the decision inR v. Galbraith[1981] 1 W.L.R. 1039. That application was refused and it is contended on behalf of the appellant that both the refusal was wrong and that there was a failure on the part of the learned trial judge to give reasons for his refusal.
34. The application and its refusal occurred on Day 8 of the trial. On the previous day, Mr. Marrinan SC indicated to the learned trial judge that he would be making an application to him on the following day. Mr. Marrinan advised the learned trial judge that following the close of the prosecution case he expected that the trial would proceed“..straight into speeches and charge”. He added:- “Subject to a purely formal application that I have to make to the Court, but it is purely formal in nature bearing in mind the Court's earlier ruling. It's just in case I was criticised elsewhere for not making it at the appropriate time.”
35. On the following day, Mr. Marrinan addressed the learned trial judge thus:-“I think I indicated to the Court yesterday that I'd be duty bound to make an application for a direction at this stage to withdraw the case from the jury on the basis of the Galbraith decision. The Court, in its judgment in admitting the evidence which was based on the weight of the evidence, ruled against me, and it seems to me that effectively this application is more or less in line with that application and I only formally make it, because obviously the Court has rejected it for the reasons that were earlier stated in the earlier application.” (The earlier ruling referred to by Mr. Marrinan was that regarding the admission into evidence of the letters written by the appellant.)
36. The learned trial judge tersely rejected the application stating “Very well. I refuse”.
37. The principles governing directions set out by the English Court of Appeal in Galbraith, and which had been consistently followed in this jurisdiction, were those stated by Lord Lane in the following terms:- 38. The criticism of the learned trial judge’s terse ruling in relation to this application is entirely misconceived. It was quite clear from the application made by Mr. Marrinan, and indeed the brevity of that application, that he linked or associated his application with his earlier application, that a detailed reasoned ruling by the learned trial judge was not required or expected, nor was it necessary. The backbone of the prosecution case was the correspondence written by the appellant while in custody and its content. A ruling by the learned trial judge to withdraw the case from the jury at the close of the prosecution case, had such been made, would have been inconsistent with his earlier decision.
39. This ground of appeal must therefore fail.
The charge
40. It is contended on behalf of the appellant that the learned trial judge’s charge to the jury was deficient in that the corroboration warning given was inadequate. Section 10 of the Criminal Procedure Act 1993 provides:- 41. The case clearly called for a corroboration warning to be given to the jury. What therefore did the learned trial judge say in his charge to the jury on the issue of corroboration? He said:-“Now, this case is all about something the prosecution rely on as being a confession. Now, you must have heard of the word corroboration. Corroboration is something independent normally of a person making a complaint. But it is something independent which confirms the complaint being made and implicates the accused. And it's for the trial judge to rule as to whether there's any evidence in a case capable of amounting to corroboration and it is for the jury to decide whether that evidence does amount to corroboration. Now, the situation is that in this case there is a total absence of corroboration. And section 10 of the Criminal Procedure Act 1993, which was enacted after various cases that had been mentioned, Guilford Four and Birmingham Six, and so forth. In a reaction to those cases the Oireachtas enacted a section which provided, “Where at a trial of a person on indictment evidence is given of a confession made by that person, and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.” You may convict in the absence of corroboration, but you must, before doing so, have due regard to the fact that there is none. And in relation to this case, to convict on what is offered as a confession, you would have to find that that was reliable. And all 12 of you would have to be satisfied to the standard of beyond reasonable doubt that that was reliable before you convicted upon it. Now, if you give due weight to all those matters I've just mentioned to you, you are entitled to convict on the document being offered as a confession, and you're also entitled to do so in the absence of corroboration. But you must first be satisfied that it is reliable evidence and that it convinces all 12 of you to the standard of reasonable doubt of the guilt of the accused.”
42. It is fanciful to suggest, as was suggested on behalf of the appellant, that references to the Birmingham Six and the Guildford Four cases were not intended as widely known examples of cases where gross miscarriages of justice had taken place. However, the court is satisfied, that that aside, and even in the unlikely event that the references to these well known cases were meaningless to the jury, the overall effect of the learned trial judge’s charge on the issue of corroboration would have left the jury in no doubt but that they had to approach their deliberations with particular care because of a lack of corroboration. The jury could not but have been aware from what had been said to them that they should pay particular attention to the absence of corroboration, and which was described by the learned trial judge as a total absence of corroboration. Most importantly also, the jury was told explicitly“..in relation to this case to convict on what is offered as a confession, you would have to find that that was reliable”.
43. However, if in circumstances where this court had some element of reservation or concern about the extent of the corroboration warning (and which it does not have) the absence of any requisition made following the charge to the jury in relation to the corroboration warning, or any other issue for that matter, itself presents a difficulty for the appellant having regard to the decision of the Supreme Court inDPP v. Cronin (No. 2)[2006] IESC9 which held that only in circumstances where the court was of the view that, due to some error or oversight of substance, a fundamental injustice had occurred should the court allow a point not raised at trial be argued on appeal. It is in any event unnecessary for the court to consider the Cronin point having regard to its already stated view in relation to the adequacy of the corroboration warning.
44. This ground of appeal must also fail.
Conclusion
45. The court is satisfied that the appellant’s trial was fair and the verdict of the jury safe. It will therefore dismiss the appeal. |
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