THE COURT OF APPEAL
[161/2016]
Birmingham P.
Mahon J.
Hedigan J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT of the Court delivered on the 26th day of June 2018 by Birmingham P.
1. On 15th April 2016, after a lengthy trial in Wexford Criminal Court, the appellant was convicted of seven offences which were as follows:
(i) one count of aggravated burglary;
(ii) three counts of burglary;
(iii) a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act;
(iv) an offence of using an MPV without the consent of the owner contrary to s. 112 of the Road Traffic Act (as amended) and
(v) and an offence of allowing himself to be carried in a vehicle taken without the consent of the owner contrary to s. 113 of the Road Traffic Act.
Subsequently, on 15th April 2016, he received a prison sentence of six years imprisonment which was backdated by some twelve months. He has now appealed against his conviction.
2. The offences featured during the trial related to a number of incidents that had occurred in the south-east of the country in 2008/2009. The prosecution case is that the offences were all committed by a particular gang of which the appellant was a member. The first offence in time was on 26th May 2008 and involved a burglary at a dwelling in Bunclody. The incident involved the fishing out of the keys to the injured party’s motorcar, a BMW, through the letterbox of his home. His car was then taken from the back of the house. The prosecution’s claim was that the man who used a fishing rod to extract the keys was, in fact, the appellant.
3. On a date between 23rd and 27th May 2008, the premises at Macreddin Golf Club, which is part of the Brook Lodge Hotel complex was broken into during the course of the night. Cash in the amount of €7,000 and various goods to a value of €400 were stolen. The prosecution case is that the appellant was one of two people who broke into the premises. On 6th December 2008, a dwelling on the Athy Road in Carlow was broken into at a time when it was unoccupied. An imitation handgun was taken as well as a video camera, watches and rings. The prosecution alleged that the appellant along with another man had kept lookout in a car, while two other men entered the house.
4. These same four men were, according to the prosecution, involved in an incident at the Esso filling station in Bunclody at about 5am on the same day. The cashier was lured outside onto the forecourt as a result of the actions of one of the gang knocking over his motorcycle. When he went outside, he was set upon by the four men who proceeded to assault him. They dragged him back into the shop and tied him up. A sledgehammer and an iron bar were produced from the back of the vehicle and were used in an attempt to gain access to the back of an ATM machine which was in the shop premises. When that did not succeed, they broke through the door of a strong room containing a large quantity of cigarettes and these were taken. The vehicle used in that incident was a BMW M3 taken from a dwelling in Tullow, County Carlow, on 23rd November 2008. It was this vehicle that featured in the charge of allowing himself to be carried contrary to s. 113 of the Road Traffic Act.
5. The prosecution case relied on the evidence of a witness, Mr. Des Kavanagh, who was an accomplice and who had been admitted to the Witness Protection Programme. During the appellant’s trial, it was accepted by the prosecution that there was nothing that would amount to corroboration of Mr. Kavanagh’s evidence. Mr. Kavanagh himself had been sentenced in respect of offences that were before the Court, as well as other serious offences, including the theft of an ATM machine and €242,000, using a digger at a filling station at Enniscorthy, County Wexford. By the time Mr. Kavanagh gave evidence at the trial of Mr. Byrne, he had already given evidence in three other trials in the Circuit Court in Wexford and Dublin. All of these trials arose out of a Garda operation known as Operation Slope which had targeted a particular criminal gang. Mr. Kavanagh had given the Gardaí information which implicated some ten people in a series of crimes in the south-east.
6. In summary, the issues raised on the appeal all relate in one way or another to the evidence of Mr. Kavanagh. It is contended that his evidence failed to achieve a threshold of minimum credibility and should not have been admitted. Further, it is contended that the dealings that the Gardaí had with him over an extended period, including dealings relating to his admission to the Witness Protection Programme, were conducted without any regard to the requirement for transparency and fairness to such an extent that the prosecution should not have been allowed proceed. Further, it was contended that Mr. Kavanagh’s evidence, even if admitted, was so unreliable that it could not safely ground a conviction and that this was a case that should have been withdrawn from the jury.
7. The judge’s charge is also the subject of criticism. It is accepted that the judge repeatedly warned the jury that it was dangerous to convict on uncorroborated evidence of an accomplice, though the jury was also told that having taken the warning on board, it was still entitled to do that, having taken the warning on board, was still entitled to do that. It is acknowledged that the judge gave a separate warning of the dangers of convicting on the uncorroborated evidence of someone who was participating in the Witness Protection Programme. It is also accepted that the judge in the course of his charge referred to the fact that Mr. Kavanagh had told lies, including lies on oath, and that his evidence should be viewed with caution on that ground. The trial judge drew attention to certain particular issues that arose from the evidence of Mr. Kavanagh which it was said involved falsehoods, internal contradictions and lies. He specifically directed the jury that the cumulative effect of the various matters that were being brought to their attention might lead them to the conclusion that Mr. Kavanagh’s evidence could not be relied on in the absence of corroboration and corroboration was not available.
8. However, the appellant says that the judge refused to charge the jury in accordance with a number of requisitions that were made to him. Specifically, he was requisitioned to say expressly that accomplices may give plausible evidence precisely because they, having participated in the offence, would be very knowlegable in relation to it and could easily insert an individual into the narrative if minded to do so. The judge was also asked to say that corroboration in the context of accomplice evidence might include evidence which tended to support the prosecution case against the accused in a general way e.g. by tending to show that the accused was in the general area of the offence at a relevant time which would be consistent with guilt and that no such evidence had been provided. It is said that there was a failure on the part of the judge to contextualise the accomplice warning he was giving. The defence also contended that a distinct supergrass warning was necessary. There was also a complaint made about aspects of the closing speech by the prosecution and it is said that the judge failed to undo the effects of what was an unsatisfactory and impermissible speech.
9. It is helpful to refer to some particular criticisms made of Mr. Kavanagh. One matter on which particular emphasis was laid was that he had made an allegation, falsely, of criminal conduct against the appellant. Mr. Kavanagh had, on his own account, been involved in a burglary at the home of a friend and former employer, Patrick Doyle, at Daphne View, Enniscorthy, in the course of which a car of Mr. Doyle’s was stolen from outside the house using keys taken during the burglary. When questioned by Gardaí about the incident, Mr. Kavanagh initially alleged that Mr. Byrne was involved it the burglary and theft. However, in giving evidence in subsequent trials, Mr. Kavanagh accepted that the contention was not true and that it was another person, Michael Soups Berry, who was involved in the burglary with him. The appellant points out that Mr. Kavanagh had a propensity to lie and that there were many occasions when this was demonstrated. It is said that there were other disturbing aspects of his character, including the fact that he had contemplated using a Glock handgun to shoot neighbours after they had given him a beating because he had been driving recklessly when drunk in an estate where there were many young children. When he was eventually dissuaded by an associate from shooting his neighbours, he informed Gardaí that he was considering blackmailing them by having them charged with criminal offences and that they would then pay to have the allegations withdrawn. It was pointed out that Mr. Kavanagh, over and above the serious matters to which he had pleaded guilty arising from Operation Slope, had numerous other significant previous convictions. It was also said that he was fortunate in not having been charged with yet further offences of real significance.
The Procedures Followed by Gardaí
10. The appellant raises a number of points about the procedures followed. Firstly, it is protested that Gardaí failed to properly record their interactions with Mr. Kavanagh. Again, there is a complaint that the disclosure made was inadequate. The defence sought disclosure of documents relating to his interaction with the Witness Protection Programme, claiming that they needed to gain insight into Mr. Kavanagh’s motivation and his state of mind at the time when providing statements to Gardaí. The prosecution objected to disclosure and called the head of the Witness Protection Programme, Detective Chief Superintendent O’Sullivan, to assert a claim of privilege. After hearing submissions, the trial judge undertook to review the voluminous file of the Chief Superintendent to assess whether any material should be disclosed. Having done so, he directed that a psychological report in respect of Mr. Kavanagh could be disclosed, but otherwise upheld the claim of public interest privilege, noting that he did not think there was much of potential benefit to the defence on the file.
11. The defence contended at trial and have argued on this appeal that the procedures followed by the Gardaí in their dealings with Mr. Kavanagh fell below a minimum standard of acceptability. It would seem that the appellant is suggesting that when Gardaí are dealing with an individual who is an accomplice of suspected serious criminals, and who, it is thought, might be prepared to or might wish to enter the Witness Protection Programme, that their dealings should be video recorded. The Court sees this as an invitation to engage in judicial legislation. The Court has not been persuaded that there was anything improper in how the Gardaí acted. In the nature of things, those who will be in a position to give evidence against persons involved in serious crime, and willing to do so, are likely to be relatively few and far between. The Court would not regard it as appropriate to impose procedural straitjackets on the Gardaí, retrospectively.
12. The Court does not totally exclude the possibility that there may be some extreme circumstances which would lead to the exclusion of a witness in a position similar to Mr. Kavanagh. In general, however, the evidence of a witness who is an accomplice or a supergrass and/or a participant in the Witness Protection Programme is receivable. Once the evidence has been admitted, it will be for the triers of fact, having been given appropriate warnings, to decide on the evidence.
The Application for a Direction
13. Essentially, there seem to be two legs to the argument that a direction should have been granted. The first related to the issues relating to the quality and reliability of Mr. Kavanagh’s evidence and the second related to the criticisms of alleged shortcomings in the Garda investigation. So far as the reliability leg is concerned, this is essentially a Galbraith application. The Court has no hesitation in saying that there was obviously evidence here that the offences charged had been committed. The question then is whether the key prosecution witness was so discredited that no jury properly charged could act on his evidence or whether it was for the jury to assess that evidence and to decide whether to act on it. Unlike the trial judge and the jury who had the benefit of hearing a lengthy cross-examination, the Court has not been able to do that and has had to rely on the transcript, which is very much second best. Jurors may well have felt that they had seen every aspect of his character probed in exhaustive detail, and if he had stood up to that level of scrutiny, that they were in a position to rely on his evidence. Overall the Court is in agreement with the trial judge that this was a case that was properly one to be left to the jury, albeit that the jury would need to be warned in clear and strong terms.
14. The Court has already made it clear that it has not been persuaded by the criticisms of the investigation and the role played by the Gardaí.
The Judge’s Charge
15. There is no doubt that the judge warned the jury in strong and clear terms and indeed did so repeatedly about the dangers of acting on the uncorroborated evidence of Mr. Kavanagh. The judge was entitled to choose his own language and he was not obliged to use the language sought on behalf of the appellant during the course of requisitions.
16. So far as the point about the need for a “supergrass” warning is concerned, there might be room for argument as to whether the scale and nature of the evidence given by Mr. Kavanagh against his accomplices would justify the appellation “supergrass”. Certainly, the numbers he implicated and the number of offences that he dealt with are relatively low by comparison with some of the best known supergrasses such as Christopher Black or Harry Kirkpatrick. However, what nobody can have been in any doubt about was the fact that this was a case of a gang member implicating multiple members of the gang of which he had been a member. Once the jury has been warned about the dangers of convicting on uncorroborated evidence, bandying terms like “supergrass” about would add little to the effect of the warning.
17. Overall, the Court is quite satisfied that the judge was conscious of giving a strong and clear warning and delivered just that. The warning was an appropriate one and the grounds of appeal in relation to the charge are therefore rejected.
The Prosecution Closing
18. There remain for consideration the criticisms of the speech of prosecution counsel, and linked to that, criticism of the judge for failing to mitigate the impact of the prosecution closing speech. As was to be expected, the defence mounted a sustained criticism of Mr. Kavanagh and it must be said in that regard that little if anything was left unsaid that could have been said. However, there as another side of the story and counsel for the prosecution sought to put that other side before the jury in his closing remarks. The defence say that he overstepped the boundaries in doing so, in particular, they say that he “conjured up” the following propositions:
The mode of delivery for these propositions being:19. It is therefore necessary to consider what counsel for the prosecution had to say in his closing address. He began by commenting that there may have been times during the trial when the jury may have been asking themselves who was on trial: was it the accused or was it Des Kavanagh? He pointed to the significance of the Witness Protection Programme, observing that those admitted to the programme are unlikely to be the kind of people who would be invited to afternoon tea with an elderly relative.
20. Prosecution counsel invited the jury to consider why Mr. Kavanagh would, as the defence was suggesting had occurred, insert Jason Byrne into the narrative. He addressed the defence’s theory that it was done to better his own situation and to get whatever benefits were available. He then posed the question to the jury whether it was a benefit to be on virtual 24-hour lockup for eighteen months of the prison sentence, and was it a benefit that when released from prison he had to relocate to another country? He reminded the jury that while there had been a financial contribution, that had ended after twelve months because Mr. Kavanagh had become self-sufficient. In relation to protection, counsel said that protection was hardly an end in itself, a goal in itself. He went on to comment, in a passage to which strong objection was taken by the defence:
“[h]e only needs protection because he has decided to come forward and to go on the record against his former criminal associates. And his involvement in witness protection does not arise only because he has implicated Jason Byrne. There is a much, much wider context here, because as you heard from Detective Garda Ryan in evidence yesterday, when he made that statement to the guards in April 2010 . . . Jason Byrne was only one of ten individuals he identified or referred to at that stage and he described in all some 27 crimes.”
He asked again if Mr. Kavanagh had fabricated the story about Jason Byrne being present at the crimes, why had he done that:“[i]s it a case of him just deciding to give the guards another name to impress the guards, because if that is the case, you would expect that Mr. Kavanagh would have been at least mindful of the possibility that the guards would carry out follow-up enquiries to see whether or not in fact it was possible that Jason Byrne was at the places where Des Kavanagh said he was in May and December 2008. So, if he was just making up a story about Jason Byrne’s involvement, he would have to know that he was taking a risk that he would be found out in relation to that. Or is it a case that the Gardaí are so bent on nailing Jason Byrne that they are the people who have put the name Jason Byrne into the head of Des Kavanagh while he is making this statement? Because there is not a shred of evidence before you to suggest that that is what happened. And, of course, would involve the Gardaí in an outrageous conspiracy to pervert the course of justice.”
21. Defence counsel took exception to the closing and sought time to take instructions on whether to seek a discharge of the jury. He returned to Court to confirm that he was not in fact doing so, but indicated that he expected that the prosecution counsel would clarify that the need for Mr. Kavanagh to enter the Witness Protection Programme did not arise from the fact that he had named Jason Byrne. Counsel for the prosecution then told the jury when they returned to Court that when he had made the comment that Mr. Kavanagh’s involvement in the Witness Protection Programme did not arise simply because he had implicated Jason Byrne, he had not intended to imply or suggest by that that there was any threat by Mr. Byrne to Mr. Kavanagh. In the Court’s view, there was nothing improper about the speech by prosecution counsel. The point that he made about the fact that somebody who took a decision to insert an additional participant would be taking the risk of destroying his entire credibility was a perfectly reasonable one. If the individual is assigned a role in multiple offences occurring on different dates, then the risk is multiplied. If an individual who had nothing to do with several incidents was assigned roles in those incidents, then there was always the possibility that Garda investigations might, as canvassed by prosecution counsel, establish that he could not have been involved in one or more of the incidents. Alternatively, it might be that the individual himself could prove that he had nothing to do with one or more of the incidents, perhaps by establishing that he was in custody at the time one or more of the offences was committed or that he was out of the jurisdiction.
22. In the Court’s view, the arguments canvassed by prosecution counsel were proper ones. It was proper and gracious of him to clarify that he had not intended to suggest that there had been any threat by Mr. Byrne to Mr. Kavanagh. With that clarification, his remarks are entirely unobjectionable. Accordingly, the ground of appeal relating to prosecution counsel’s speech is rejected.
Conclusion
23. In summary then, the Court has not been persuaded to uphold any ground of appeal that has been canvassed in either the written or oral submissions. The Court has not been persuaded that the trial was unfair or that the verdict was unsafe. This was quintessentially a case for a jury to decide. The jury having been warned about the dangers of acting on the evidence of Mr. Kavanagh were content to convict. That was their prerogative and, accordingly, this Court must dismiss the appeal.
