THE COURT OF APPEAL
Record Number: 236/2017
Birmingham P.
Edwards J.
McCarthy J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
MICHAEL POWER
APPELLANT
JUDGMENT of the Court delivered on the 8th day of March 2019 by Mr. Justice McCarthy
1 . This is an appeal against the conviction of the appellant on the 19th July 2017 of assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against The Person Act, 1997 on one Thomas Hanrahan on June 27 2015 on Cope Street, Dublin 2, a charge of assault on him contrary to s.3 of the same Act on the same date at Anglesea Street, Dublin 2, together with an offence of production of a knife in the course of a dispute contrary to s.11 of the Firearms and Offensive Weapons Act, 1990, in the course of the events referred to above. After conviction the accused was sentenced to ten years' imprisonment, the final eighteen months of which were suspended for a period of two years on certain conditions.
2 . It was not in debate at the trial that Mr. Hanrahan was the subject of an attack with a knife which gave rise to very serious injuries and necessitating a splenectomy, and a second though somewhat less significant assault effectively in the course of the same series of events. The substantive issue at the trial was the identification of the accused as the assailant and to that end it was sought to adduce evidence of identification of the accused by members of An Garda Síochana from certain CCTV footage harvested by the Gardaí from premises in the immediate area of the offences. Apart from identification of the accused, it was sought also to put into evidence identification of one John Power purportedly seen in his company on CCTV. This is because the injured party had identified the latter as one of his assailants - he did not purport to identify the appellant.
3 . No dispute arose as to the origin of the CCTV footage or its reliability, per se , as showing the areas in question at the relevant times. The material was obtained from a certain Tesco supermarket and a premises called Club M on Fleet Street and Cope Street respectively. Objection was taken to receipt of the evidence.
4 . The core evidence of identification was provided by Gardaí Sarah Smith, Brian Concannon and Peter Bernard, though, the prosecution did not call on Garda Bernard.
Garda Smith was attached to Blanchardstown garda station between December 2012 and April 2015 in what was described as a task force unit. She engaged in daily patrols and knew the residents. She said she knew him "from meeting him on a regular basis in the area, stopping and talking to him and his friends in the area" on "a regular basis" (sometimes two or three times a day). She would have spoken to many others in the community and stopped them when in the area. It was her responsibility to become acquainted with as many people as possible who lived in the area. She had formally worked as a community guard officer and she stressed the importance of this. She said that those to whom she spoke or stopped were not "persons of interest" to the Gardaí but were "just persons that were in the community and that we would have stopped to speak to" . She was pressed as to the frequency of her meetings. She did not know John Power as well, it means, and gave no evidence of identifying him. She was pressed as to the accuracy of her identification by reference to the CCTV footage.
5 . Garda Concannon knew Michael Power from "stopping and speaking to him on a regular basis as a guard based in Blanchardstown garda station, "I have known him over a vast number of years" and when asked to elaborate he said " as part of my daily patrols I would stop and speak to people, members of the public on a constant basis, just talking to them and such and speaking to them about any kind of subject that we speak about. I would have stopped and spoken to Michael Power on a number of occasions throughout the years" . This apparently extended to detaining him for a search under the Misuse of Drugs Acts and was described as John Power's case manager (who might be under suspicion of criminal conduct or found to be engaged in it - John Power has seventy-five previous convictions). He had met Michael Power a number of years before and did so on a regular basis to "kind of stop and speak to kind of thing" - he never had any involvement with him in relation to criminal activity.
6 . In written submissions, and it appears from consideration of the transcript, it was, and is now, submitted that that identification evidence was inherently prejudicial to the accused and that such prejudice outweighed its probative value. The implication was that the accused was someone with previous convictions who had served time in prison and was known to the gardaí (something, of course, which was not mentioned either on the voir dire or during the trial); the objection was further grounded on the proposition that since the injured party had identified John Power as one of his attackers to show him in the company of the appellant some minutes before the attack created an association between John and Michael Power which was prejudicial to the accused (a prejudice, one assumes, which was contended extended any probative value). At the appeal hearing, counsel for the appellant went on to say that the evidence of Gardaí "regularly" meeting the appellant in the course of their duties gave rise to an implication of a criminal/offending context. It was submitted also that counsel would be significantly constrained as to how he could cross examine gardaí as to the accuracy of their recognition evidence since the answers would inevitably stray into issues which show that John Power (at least) had previous convictions and where Garda Concannon was described as his garda case manager. In oral submissions, counsel for the respondent stated that nothing in the evidence gave rise to a conflict with the principles set out in DPP v Larkin [2009] 2 IR 381; two members of the Gardaí provided identification evidence in an innocuous manner in which no criminal context was suggested.
7 . In ruling upon the objection to receipt of the evidence, the learned trial judge said this:-
"All prosecution evidence is by definition prejudicial and the Court will always seek to strike a balance between those two competing interests as it has done here. In this incidence, in the circumstances of this particular case it is the Court's view that the probative value far outweighs the prejudicial effect. And in particular the Court has had regard to Kearns J where it says, "If identification evidence is available from police officers and the same can be given in circumstances where the probative value of the evidence outweighs the prejudicial effect the Court sees no reason why such evidence should not be given. It is difficult to conceive of a greater affront to the community's interest in the prosecution of crime than to deny to the prosecution the opportunity of calling such evidence, all the more so in modern social conditions." [Transcript, Day 3, Page 38].
8 . One Detective Sergeant Kavanagh gave evidence as to the fact that Mr. Hanrahan had made a statement which was read pursuant to s.16 of the Criminal Justice Act, 2006. Evidence was lead as to the circumstances in which this was done. Having referred to his visit to St. James' Hospital, where the statement was taken, he said, when asked about Mr. Hanrahan's demeanour, that he was "in complete fear. He was terrified. He was concerned that when he got out of the hospital he had no place to go" and, that " his life would be at risk, that he would be killed and we had those real concerns at the time." Detective Sergeant Kavanagh went on to say the Mr. Hanrahan "didn't want to stay in the city at all. He didn't want people knowing where he was and he didn't want the Donovan and Power family knowing where he was and he was concerned for his own family" and, further, that the Gardaí "needed to put a plan in place to protect this man's life" .
9 . It was submitted at the trial that this evidence conveyed the suggestion that there was an ongoing threat to Mr. Hanrahan not only from the accused but from his entire family and that this was known to the Gardaí. The judge refused to discharge the jury on the appellant's application on July 12 2017 because of what had been said. At the appeal hearing, it was submitted on behalf of the appellant that the fears expressed by Mr. Hanrahan in his statement were not the words of the complainant in his evidence, the words came from a member of the Gardaí in the course of his evidence which created a real risk of prejudicial implications regarding the Power family in the mind of the jury. Counsel for the respondent replied that such a comment from Mr. Hanrahan was a perfectly normal reaction from a person in the aftermath of such an incident. Further, the concerns raised by Mr. Hanrahan made no reference to the appellant:-
"Q. All right, thank you very much. Now, in relation to the safety concerns that you had indicated yesterday pertaining to Mr Hanrahan, I think that they didn't refer at all to Michael Power; is that correct?
A. They did not, no.
Q. Thank you very much, Sergeant. If you answer any questions, please." [Transcript, Day 6, Page 14].
10 . Later in the course of evidence one Padraig O'Neill, a bystander who had seen the events, referred to the fact that he saw Mr. Hanrahan, (as it was established he was) "staggering down towards Temple Bar, like, trying to chase two lads" and when asked by counsel to "tell (her) about those two lads" he said that " well, two of them, one of them, this man here, the defendant, were circling him" . As a consequence of this evidence, it was suggested that without notice to the accused, as was the case, what had effectively happened was a dock identification of the appellant. Again, an application on behalf of the appellant to discharge the jury on receipt of such evidence was refused. It was submitted at the appeal hearing that this was a wholly unsuitable way to adduce evidence as it would leave the jury with a conscious or subconscious prejudice towards the accused identified in the dock. Counsel for the respondent replied that the judge provided an impeccable direction in relation to the matter and that there is no basis to suggest that a robust jury did not follow the direction given. In fact, the judge went so far as to say to the jury that if they could not put that evidence out of their minds then they should acquit.
11 . Prior to the hearing, counsel for the defence abandoned a ground in relation to the alleged cross-examination of a prosecution witness by counsel for the DPP, and at the appeal hearing, the appellant abandoned what was ground two in relation to the use of s.16 of the Criminal Justice Act, 2006.
12 . From his conviction, the appellant has appealed on the following remaining grounds in that the trial judge erred:-
Ground (i)
13 . Ground (i)- "The trial judge erred in law by permitting identification/recognition evidence of the appellant by Gardaí."
The appellant submits that the identification/recognition of the appellant by members of An Garda Siochana was prejudicial. This evidence led to a situation where the appellant's ability to cross-examine was significantly hampered and could not be done without reference to the previous convictions of the appellant and the introduction of further prejudicial material.
14 . The principles of law applicable to the receipt of evidence by members of An Garda Siochana of recognition of accused persons from CCTV footage or stills taken from it are now well established. The leading authority is DPP v. Larkin . There, in his judgment for the Court, Kearns J. (as he then was) stated (at para. 27) that:-
"If identification evidence is available from police officers and the same can be given in circumstances where the probative value of the evidence outweighs the prejudicial effect, the court sees no reason why such evidence should not be given. It is difficult to conceive of a greater affront to the community's interest in the prosecution of crime than to deny the prosecution the opportunity of calling such evidence… "
And he went on to say - "That is not to say that an endless stream of police witnesses should be paraded through court, each of whom would successfully provide recognition evidence of an accused person from a video or photograph. As the cases indicate, there is a balancing exercise to be performed in this sort of situation by the trial judge. It is important that witnesses who are called should, wherever possible, be able to point to some non-criminal background context whereby the identification or recognition has been made. In a situation where this is not possible (situation which does not arise in the present case) a very real difficulty may arise, the resolution of which is beyond the prevue of this judgment."
15 . It seems that this case and other decisions preceding it pertaining to, for example, the receipt in evidence of CCTV footage date from a time where the availability and consequent introduction of such evidence was a novelty, but it is now of course commonplace in trial after trial. And indeed, if the Gardaí fail to harvest such evidence there may be circumstances in which an accused person is prejudiced to the extent that he cannot receive a fair trial, rare though that circumstance will be. It is also commonplace to introduce recognition evidence from members of An Garda Siochana, either without reference to the circumstances in which the gardaí became acquainted with the accused, especially in cases where it is not possible, say, because the accused has been recognised by the Gardaí because of his engagement in criminality, to adduce evidence of recognition based upon innocuous knowledge. When it is sought to contest recognition evidence, it may well be in such circumstances that either in cross-examination or otherwise evidence will emerge as to, say, the extent or frequency of contact and perhaps even the circumstance. We think that it is now recognised that it would be an affront to common sense if evidence identifying an accused as engaged in the criminal act alleged were to be excluded merely because the identification is made by Gardaí because of their prior acquaintanceship with the accused. It is hard to conceive of circumstances where such evidence could be more prejudicial than probative. We might note, in passing, that in his submissions at trial and in this ground of appeal counsel has repeatedly referred to the fact that the evidence should not be admitted because it is "prejudicial" - needless to say that fact is of no relevance, per se , if it be a fact. It is perfectly obvious, equally, that such evidence is not admissible on what might be termed an open ended basis. Circumstances may arise where, for example, the prosecution might be restricted to calling a lesser number of witness than all of those available to it who recognise the accused (as referred to by Kearns J.). This will be a matter for the discretion of the trial judge on a case by case basis. It was what was done here, since the prosecution did not call Garda Bernard.
16 . We have referred above to, in summary, to the evidence of the relevant gardaí and it seems to us to be clear that the trial judge, with great care, had regard to all factors relevant on that evidence, when applying the now well established legal principles. She agreed also, whether it was necessary or not (something which we do not have to decide) to give a form of warning to the jury, analogous to the warning in The People (Attorney General) v Casey (No.2) [1963] 1 I.R. 33, as to the infirmities of visual identification or recognition. On the evidence of the Gardaí, there is not the slightest suggestion that they knew him in circumstances reflecting badly upon him, still less, some implication that he had an engagement in criminality.
17 . Evidence was given not merely of recognition of the accused but also of John Power as being in his company in circumstances where he had been identified by the victim as one of his assailants. Here the position of the accused was slightly different in as much as his contention was that apart from any issue, on a freestanding basis, pertaining to the receipt of recognition evidence the fact that he was referred to as being in the presence of the accused at a material time was in and of itself something which had a greater prejudicial effect than probative value. We cannot see how this could be the case: it seems to us that if, as part of the res gestae, one of a number of assailants is identified and he is in the immediate company of another so identified it is clear, if not strong, evidence that both were engaged in the offences.
Grounds (iii) and (v)
18 . Ground (iii) - "The trial judge erred in law and fact by refusing an application to discharge the jury when a member of An Garda Siochana gave evidence to the jury that was highly prejudicial to the appellant relating to certain personal details."
And:-
Ground (v) - "The trial judge erred in law and fact by refusing to discharge the jury when a dock identification occurred without notice to the defence and where the witness had not previously purported to identify the appellant."
As to the first of these grounds it seems to us that as a fact the impugned evidence was not referable to the accused, as was made clear in answer to prosecution counsel after defence counsel had raised the risk that the evidence might be construed as referable to him. This being so, there was never a basis for the discharge of the jury, since there could be no prejudice.
19 . As to the fifth ground, it is clear from the evidence that without notice to either side Mr. O'Neill identified the accused as one of those involved in the events in question by referring to him, seated as he apparently was in the dock (as it is commonly called) from the witness box. He had never identified him before, nor been asked to do so. There is no doubt but that the evidence was of no weight. Nor did the evidence or circumstances warrant the exceptional course of a so-called dock identification, that is to say, one where the identification of the accused as a culprit, or one of a number of culprits, is made for the first time in court. This was one of those cases, not uncommon, accordingly, where inadmissible evidence was accidently given. The emergence by accident and especially from lay witnesses, as here it is obvious that the question by prosecuting counsel which elicited it did not admit of the reply given.
20 . It seems to us that the most recent decision of this Court which comprehensively deals with this issue is DPP v Coughlan Ryan [2017] IECA 108. Speaking for the Court, Mahon J. at para. 18 stated the general rule as follows:-
"Inadmissible evidence finds its way into many trials, usually accidently and inadvertently. When it does, its prejudicial effect will vary from case to case, obviously very much depending on what has been stated to the jury or how it might be interpreted by the jury. It is well established and long accepted that a jury should only be discharged where the prejudicial effect is significant and it is not possible to counter that prejudicial effect by suitably warning or directing the jury. Juries have proven themselves time and time again to be willing and capable of heeding judicial warnings and instruction and of acting appropriately in response thereto."
He then went on to say:- 19. "In Dawson and Or v. Irish Brokers Association (6th October, 1998, The Supreme Court) O'Flaherty J. stated:-
"Even if inadmissible evidence gets in, the jury should be taken as likely to abind by the trial judge's ruling in all matters of all and by their oath to do essential justice between the parties… Oh, once again, it is necessary to reiterate as this court is doing with increasing frequency that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the last resort and only to be accomplished in the most extreme circumstances. Juries are much more robust and conscientious than is often thought. They are quite capable of accepting a trial judge's ruling that something is irrelevant or should not have been given before them as well as in the face of adverse publicity."
20 . In D v. DPP [1994] 2 I.R. 465, Finlay C.J. said:-
"I am satisfied that there is much strength in the argument submitted on behalf of the DPP in the hearing of this appeal that this court should not disregard both the capacity of a trial judge strongly and effectively to charge a jury in a manner which would indicate beyond question their obligation to try the issues before them only on the evidence adduced, and the robust common sense of juries who might well ignore dramatic or sensational newspaper articles."
21 . In exercising her discretion to refuse the application the judge gave her ruling on the matter as follows:- " This is not an issue addressed by this witness. The gardaí have offered recognition evidence, which is of course in a different category. The evidence proffered by this witness is not the evidence upon which the prosecution rely, and it is clear that this was not intended to be led. This is accepted by all parties. The jury have already received evidence from three members of An Garda Síochana purporting to recognise the defendant as not alone being present at the scene but participating in the actual event on the CCTV capturing the incident itself. The evidence which has been inadvertently introduced, and I accept it is inadvertent, which no one anticipated or asked that this witness identify the defendant, is of limited consequence when juxtaposed against the evidence offered before the jury as I've already outlined. It would be a different matter if this were the only evidence of identification offered by the prosecution to the jury. I am of the view that to discharge the jury at this stage for all the reasons already argued and matters previously argued in other applications before the Court would be a disproportionate response. I do intend saying that they should disregard all of the evidence offered so far regarding the identification of the accused by this witness, and I will go further and warn them that if in the course of their deliberations they find themselves reaching for that evidence of identification in the witness box to assist in convicting the defendant where they could otherwise feel that they could not, then it is their duty to acquit the accused. They will of course be given the O'Casey warning in the starkest of terms."
22 . Subsequently, in the charge, she had this to say about it:- " Now, members of the jury, I'm going to address you on a concept called dock identification. You will recall the evidence of Mr Pauric O'Neill, who was the fiddler playing in the Bad Ass Café on the 27th of June 2015 and you can see him on the CCTV footage, standing with Mr Maguire outside the café. In his evidence, he purported to identify the accused as an individual he saw on the street on the day of the assault. Now, I am directing you, you are to remove that evidence from your mind and consideration, because such evidence is not properly before you. I am now directing you that, if in the course of your deliberations, you find yourself reaching for that evidence of identification to assist you when connecting the accused to the charges before you, where you otherwise feel you could not connect the accused to the charges before you, then it is your duty to acquit the accused. That is because you are not to consider that evidence or you are not to rely on that evidence. If, in other words, the identification of the accused by Mr O'Neill, the fiddler, tips the balance in favour of the prosecution case in your mind, that is, that you could not convict the accused without the evidence of the fiddler, I am directing you that you must acquit the accused. The warning I give you about dock identification, which is what we are dealing with here, that is a witness identifying the accused who is sitting in the dock, is very different from circumstances where a person is identified in an identity parade, where the rights of the accused are properly protected. Here, the accused is sitting in a prominent position and it is clear for all to see that he is on trial; an identification is not permitted in these circumstances. I have already cautioned you of the dangers of relying on recognition evidence in the form of CCTV. This is in a different category again and I am directing you that it should not form part of your deliberations at all. I am directing you on this as a matter of law, you cannot convict on that evidence. It is worthless, due to the absence of a proper system in place to protect the accused at the time the identification was made. You are not to rely on it."
23 . It seems to us that there is every reason to proceed upon the basis that the jury acted in accordance with their oaths and took the explicit direction of the trial judge upon this point, especially in circumstances where it was clear beyond peradventure that the prosecution's case as to identification of the accused as the culprit was solely based upon the garda evidence of recognition of the accused from CCTV and stills taken from it. We cannot see why it could be suggested that a jury would not be capable of entirely disregarding what was said by Mr. O'Neill. The Constitution prescribes trial by jury for offences of a serious kind such as that before us, and that of course presupposes that the people have decided that serious cases can be tried fairly by jurors in accordance with law, on their oaths or affirmations.
24 . We think the trial judge correctly applied the applicable principles as set out by Mahon J. in Coughlan Ryan and that any prejudicial effect was dissipated by the manner in which the judge dealt with it.
25 . We reject all grounds of appeal accordingly and dismiss the appeal.
