17
COURT OF CRIMINAL APPEAL
Fennelly J.
de Valera J.
Ryan J.
58/02
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
WILLIAM ROCHE Applicant
JUDGMENT of the Court delivered on the 28th day of July, 2004 by FENNELLY J. The Applicant was convicted of the murder and false imprisonment of John Carroll in the Central Criminal Court before O’Higgins J and a jury. The trial lasted eighteen days.
John Carroll spent most of the evening of the 3rd December 1998 drinking in the company of the Applicant and others in the village of Killaloe, County Tipperary. John Carroll had money and bought most of the drinks. His body was found next morning in a field near Garnaun, Ballinahinch. He had been brutally killed.
The Applicant, in his application for leave to appeal makes the following principal complaints:
1. The learned trial judge should have adjourned the trial because the Applicant was physically and mentally unfit to continue;
2. The learned trial judge wrongly admitted into evidence a number of statements made by the Applicant;
3. The learned trial judge failed to direct the jury properly on the question of common enterprise
4. The learned trial judge failed to direct the jury properly on the absence of corroboration of the confession evidence.
The Facts
For an understanding of the submissions on these points, it is necessary to review the essential facts.
John Carroll had come to Killaloe from Limerick in the company of Bernadette Fitzgerald, a girl friend of the Applicant. She worked in Limerick with John Carroll, where he was doing a course at the National Training and Development Institute. She was asked to work in a chip shop in Killaloe that evening, but asked the Applicant to take John Carroll to a pub, the Dalcassian. John Carroll was deaf and had a speech impediment.
At the start, the Applicant and John Carroll were together in the pub. They were joined by Anne Marie Fitzgerald, Bernadette’s sister, and later by Michael Sage. Bernadette Fitzgerald joined the company at about eleven o’clock.
At one point, John Carroll took out his wallet and showed that he had what was described by Anne Marie Fitzgerald as “an awful amount of money.” She gave evidence that the Applicant said: “I am going to ambush him.” The Applicant denied saying this but agreed that he had seen John Carroll’s wallet and that there was money in it.
As the evening went on, discussion began about how John Carroll was going to get home, probably to stay his foster parents at Cappamore. He asked Anne Marie Fitzgerald, who had a house at Clarisford, near Killaloe, if he could stay with her. There is conflicting evidence about whether she agreed to this—she said she was unwilling, but her sister, Bernadette said she was agreeable. At any rate, Mike Sage posed as Anne Marie Fitzgerald’s husband and began to demand insistently that John Carroll pay him £30 for being allowed to stay. The Applicant, in evidence acknowledged that this was a serious conversation and that, in effect, Michael Sage was saying: “You have money. You are going to give it to me.” He also said: “I took it to myself there wasn’t any good in his heart.”
After about eleven, the group moved to Anne Marie Fitzgerald’s house, where she had a girl called Deirdre Rose looking after her child. This girl had a relationship with Michael Sage.
Anne Marie Fitzgerald went to bed. Bernadette Fitzgerald said that she saw the Applicant and Mike Sage talking at the sink. The Applicant’s evidence was that Michael Sage asked: “Is he giving me the money?” He replied: “Money for what?” The Applicant freely acknowledged that he knew Michael Sage was looking for John Carroll’s money. Ultimately, as a result of these demands, John Carroll ran out of the house. Bernadette Fitzgerald ran after him. The Applicant and Michael Sage came out after her and kept calling her. She told them to leave him, John Carroll, alone. She asked John Carroll what was wrong. He replied that “the two boys were going to jump him.” She understood they were probably going to rob him or beat him up, but the Applicant denied this and said that if Michael Sage started anything, he would stop him. Michael Sage seemed to be “going after John.” Bernadette Fitzgerald stood in front of John Carroll. She told them to leave him alone. John Carroll caught Michael Sage by the arm “to try to talk to him.” Michael Sage lashed out and kicked John Carroll in the chest. The Applicant, in evidence described Michael Sage as hitting, kneeing and kicking him. When Bernadette tried to protect John Carroll, Michael Sage hit her on the nose with his fist, probably, she thought, accidentally. When Michael Sage then bent down to talk to her, the Applicant was kicking John Carroll, who was still standing, in the stomach. He kicked him once or twice, according to Bernadette Fitzgerald, and John Carroll fell to the ground. The Applicant agreed that he had given “two hardly kicks.” By this he meant two light kicks. An eye witness in a nearby house, without specifically identifying the Applicant, though it must have been him, thought he saw a second, third and fourth kicks.
John Carroll, who was having difficulty with breathing, was carried into the house by the Applicant and placed on a sofa. John Carroll, by pointing to a note with 999 on it, indicated that he wanted the gardaí called. After this, there was some discussion about bringing John Carroll to hospital. The Applicant appears to have proposed this and Michael Sage, who had a white Toyota Corolla car, roared that he would not do so. He said: “He knows too much about me. He will report me to the guards.” Eventually he agreed to bring John Carroll to hospital. The Applicant brought him out to Michael Sage’s car. At that stage it seems to have been agreed, ostensibly at any rate, that John Carroll would be driven to hospital in Limerick. In the car, as it left were John Carroll and the Applicant in the back and Michael Sage, driving, with Deirdre Rose in the front passenger seat.
The evidence of what happened in the car and leading up to the death of John Carroll is crucial to the Applicant’s guilt or innocence. It is entirely based, on the one hand, on a number of incriminating statements the Applicant made to the Gardaí and, on the other hand, the exculpatory evidence he gave in his own defence. At least at the beginning, it appears that the expressed intention of all concerned was that John Carroll would be taken to the Regional Hospital in Limerick, though a jury might well have believed that the Applicant was fully aware of the malign intentions of Michael Sage both in respect of getting John Carroll’s money and not giving him a chance to go to the guards. At a certain point, instead of going straight for Limerick, Michael Sage took a left turn and the Applicant said: “This is not the way to …Limerick” to which Michael Sage replied: “This way is faster.” He drove towards Ballinahinch. When the Applicant repeated his complaint that this was not the correct way, Michael Sage replied: “He knows too much about me. I have to get him back because he won’t give me the money. He will go to a guard. I can’t take him to hospital.” In cross-examination, the Applicant said that Michael Sage said: “I am taking him up to give him a few more digs.” He said that he thought that this was what was going to happen. The Applicant gave evidence that, at this time, John Carroll had woken up and that he tipped the Applicant on the shoulder and said: “Don’t let him rob me.” He indicated by pointing where his money was hidden, which was in “his private.” He said that Deirdre Rose turned around and said: “Search his pockets, Ning.” He said: “I won’t search no ones pockets. I want nothing to do with it.”
There are, therefore, two versions of the crucial next events leading to the killing of John Carroll, one in the evidence given by the Applicant and the other in his statements to the gardaí.
According to the Applicant’s evidence, Michael Sage stopped the car at the entrance to a laneway, jumped out and opened the boot and took out a ratchet. He opened the door of the car and told John Carroll to get out. When John Carroll moved in towards the Applicant, Michael Sage said to push him out towards him. The Applicant said he had nothing to do with it. Michael Sage grabbed John Carroll and asked where his wallet was. He replied that it was in his jacket back at Anne Marie Fitzgerald’s house. Michael Sage hit John Carroll a first time on the side of the head with the ratchet. When he got no response about the wallet, he hit him on the head three or four times and searched his pockets. These were the fatal blows. The Applicant swore that he had never intended “to kill that boy.” He said that he was at the back door inside the car while the blows were being struck. He got out of the car to check John Carroll’s pulse. He was not sure if there was any; “there could have been a bit of a pulse there…... more likely there would have been.” Michael Sage was shouting to get back into the car. He said he was afraid of Michael Sage. Michael Sage got into the car, said to Deirdre Rose: “the money’s not on him” and drove away abandoning the dying John Carroll at the scene.
Michael Sage stopped the car to burn a travel pass and some other piece of paper he had taken from John Carroll. He also threw away the ratchet. There was other evidence about the Applicant accompanying Michael Sage to approach an individual to swear a false alibi, disposal of clothing of John Carroll and of the Applicant, of the ratchet and burning of some papers taken from John Carroll. However, the whole thrust of the Applicant’s evidence was that, though he was present while Michael Sage was brutally killing John Carroll, and through fear did nothing to protect the unfortunate victim, he had not taken part in the final attack on John Carroll in any way.
The four statements made by the Applicant present a starkly different picture. The first three statements took the form of notes of questions and answers at interview. His first statement contains no material admissions. In his second statement, after mentioning Michael Sage’s remark that “he knows too much about us,” he said: “I didn’t know where I was, I was slapping John Carroll’s face.” His third statement contains the following:
“I was punching him in the back of the car while we were driving around the back roads, we passed through Birdhill. I hit him a few boxes in the back of Mike’s car and he went unconscious. When we pulled up in the laneway Mike Sage and me took him out of the car. I punched and kicked John Carroll again. I kicked him in the face. I was wearing runners-tackies, Levis jeans and a red casual shirt. I dumped my tackies because there was blood from John Carroll on them ... ... While I was punching John Carroll in the back of Mike’s car, he said I’ve lost my wallet. I was kicking and boxing John Carroll in the boreen around the head. Mike Sage was hitting him with the bar…..He also said:
“I didn’t use any bar, I kicked and punched him.” In his fourth, formal written and signed statement, the Applicant said:
“I wasn’t sure where we were going but Sage said he knew the lanes and roads like the back of his hand. We changed our minds about going to the hospital because John Carroll said that he knew too much about us and that he would report us to the guards for kicking him about the place. When we turned into the lane Carroll went mad and hit me a box in the jaw. I then punched and punched him. As we were driving up the long narrow lane Sage stopped the car near a gap in the ditch and he got out, he told me to lift Carroll out of the car. I then grabbed Carroll under the armpits out of the car, he was kind of lifeless and I tried to make him stand. While I was taking Carroll out of the car, Sage opened the boot of his car and took out an iron bar. It was a chrome ratchet handle with a square piece on top to take a socket. He came up to where I was trying to get John Carroll to stand and he hit Carroll on this side of the face…… He hit him two or three times. John Carroll groaned like ah ah and fell to the ground. I then said leave him there and get out of here. When the body of John Carroll was discovered the following day in a field near Garvaun, Ballinahinch, he had severe head injuries, in particular a large comminuted depressed fracture of the skill.
There is a sharp difference between the sworn account given by the Applicant in his evidence and the contents of his statements made in garda custody. If the first were to be accepted, the Applicant had taken part in one assault on John Carroll at Clarisford and no more. Moreover, he ceased the attack and was remorseful and concerned enough to wish that John Carroll be taken to hospital to be treated for his injuries. On that version, the dreadful lurch of events which subsequently took place was the entire responsibility of Michael Sage, the Applicant being a craven and cowardly bystander but having no part in the killing of John Carroll. On the second version, there was ample evidence from which the jury were entitled to conclude, if they accepted the evidence beyond reasonable doubt, that the change was the result of a joint decision —“we changed our minds.” Furthermore, the change was sinisterly motivated by a realisation that John Carroll “knew too much about us.” The Applicant repeatedly beat, punched and kicked John Carroll and held him up while Michael Sage delivered the lethal blows with the ratchet. In order to convict, therefore, the jury had to accept the second version. Quite obviously, they did not believe the evidence of the Applicant. It is in that light that the submissions on this appeal have to be considered.
Ground 1
The Applicant complained that he had been assaulted in Limerick on 12th December 2001, some three months before the trial. According to a medical report produced during the trial, he sustained a fracture of C6 spinous process. During the trial, specifically on the fourteenth day, while the Applicant was giving evidence he complained that he “was dying with the flu,” and that he had pains in the back of his neck to such an extent that he could not think.
The Applicant submits that the learned trial judge should, in the circumstances have adjourned the trial. This arose, in the first instance, before Carney J prior to the trial and then on the fifth day of the trial. At that time, the court was embarking on the trial within a trial at which the Applicant would have to give evidence. He complained of dizzy spells and pain in his neck and said that he would not be able to think. At that stage, the application was for an adjournment to the following Monday. This was granted, with the Applicant assuring the court that he would be in court “as right as rain on that day.” The court resumed on the following Monday and there was no further application.
This matter arose again on the fourteenth day of the trial while the Applicant was under cross-examination. He complained that the pain in his neck was preventing from thinking clearly and that he was unable to answer properly the important questions that were put to him in cross-examination. The learned trial judge took the initiative of looking into the matter in the absence of the jury. It was discovered that the Applicant, who was travelling to court from Limerick each day, had been unable to get a prescription for the distalgesics which would relieve the pain. The Applicant himself told the court that he would get relief in a few hours if he could obtain the medication. The learned trial judge adjourned the trial, at 10:30, until the following morning. Counsel did not suggest any lengthier adjournment.
When the hearing resumed the following day, the Applicant said he was feeling somewhat better. There was no application for a further adjournment. A reading of the transcript suggests that the Applicant was well able to defend himself in a vigorous continued cross-examination. This was, as is accepted a matter for the discretion of the learned trial judge. This court has not been shown that he erred in its exercise. This court is satisfied that the trial was not in any way unfair on this ground and rejects it.
Ground 2
It is clear that the statements constituted an important, indeed a crucial component of the case against the Applicant. The learned trial judge conducted the normal trial within a trial.
As already indicated there were four statements. The Applicant was arrested on suspicion of murder at the house where he was staying after 8:00 on 5th December 1998 and detained pursuant to section 4 of the Criminal Justice Act 1984. He was taken to Henry Street Garda Station, Limerick, where his questioning was conducted by a number of gardaí from 8:55 to 19:25.
The trial within a trial took place over a period of three days of the trial. Twelve garda officers and the accused gave evidence. The resolution of the matter of the admissibility of the statements was entirely a matter of the credibility of the garda witnesses on the one hand and the accused on the other. It is not disputed that the learned trial judge applied the correct test which was that he had to be satisfied beyond reasonable doubt that the statements were made voluntarily. The gardaí gave evidence that, the accused was properly cautioned and signed the caution that each statement, was read to the accused, that he was invited to make any alterations he wished and that he signed the statements.
The case for the accused was that the statements were not his, but a concoction made up by the gardaí from the statements of Michael Sage and Deirdre Rose. However, as the learned trial judge pointed out, his position changed in this respect as the hearing went on. It transpired that he accepted that he had in fact made substantial parts of the statements and that he took issue only with the incriminating parts. Thus, he started out by maintaining that one of the statements was pure fiction but accepted in evidence that large parts of it, though not the inculpatory parts were indeed his. He also maintained that all his signatures—some fourteen in all—were obtained by a trick or deceit perpetrated by the gardaí, who told him to sign documents which he believed to be custody records.
The learned trial judge examined the contentions of the accused with elaborate care. He found that there were a number of straws in the wind, which it is not necessary to discuss here, which pointed in the direction of the garda version of events. Merely, by way of example, the learned trial judge attached importance to the fact that the accused was allowed to telephone his grandmother and was provided with cigarettes as pointers against oppression. Most fundamentally he believed the gardaí and disbelieved the accused, who struck him, though uneducated, as “being a very street wise person and in many ways well able to look after himself and somewhat cute…” He said that he struck him “very forcibly as a person who was not trying to assist the court in any way.” He described him as “an evasive and unhelpful witness.” In respect of certain specific allegations of bullying, he said: “I don’t believe the accused on his oath.” He disbelieved, therefore, and rejected the allegations of bullying and oppression made against the gardaí. He though the suggestion that the accused thought he was signing custody records not to be credible. He concluded that there had been no oppression, duress, unfairness of any kind.”
There was one matter, however, described as a “conundrum” which has also been raised on the appeal. There is a signed addendum to the second statement saying: “I didn’t tell the other lads the truth and that’s why I didn’t sign their statement.” However, the first statement was signed, so this makes no sense. On the other hand, it should be noted that the second statement was significantly more incriminating than the first. Also, as the learned trial judge pointed out the accused maintained that he had not said this, in any event. The learned trial judge noted the “conundrum” but added that he was “still satisfied that the statements were voluntary….”
At the hearing of the appeal, Mr Blaise O’Carroll, Senior Counsel, for the Applicant observed that his case throughout had been that the statements had been obtained by means of a fraud or trick as to the identity of the documents being signed. Thus, he seemed to acknowledge, it was difficult to establish any link between the signatures and the oppression complained of.
The points relied on are the following, with the views of the court upon them. The Applicant was not provided with a meal until 12.35. This is a matter of very little weight and, in any event, would have no bearing on the more inculpatory statements made later in the day. The gardaí made no sufficient effort to ascertain the fitness of the accused for questioning, in particular whether—as he maintained he was—he was under the influence of drink or drugs, addicted to tobacco. It is even complained of that he was not asked how he was feeling. In the view of the court, even accepting the hypothesis that such duties might in some case fall on the gardaí, the matter is amply covered by the finding of fact by the learned trial judge that “on the morning in question when he presented to the garda station, he was not unfit to be interviewed as he alleges.” While a large number of other individual examples of alleged oppression are canvassed in the written submissions, none of them is of sufficient weight to displace the very clear and well-founded findings of fact that there was no oppression.
As to the alleged “conundrum” it amounts only to the fact that there was included in the second statement an inaccuracy, an assertion that was known to be untrue. If this points in any direction--- and it is not clear that it does—it certainly does not suggest that the gardaí had obtained that statement by oppression. The court also rejects this ground of appeal.
Ground 3
Mr Maloney, junior counsel for the Applicant submitted that the learned trial judge did not direct the jury sufficiently clearly on the issue of common enterprise. He should have made it clear that, if any participant went beyond the common design, i.e., what was contemplated the other participants would not be criminally responsible for that aspect.
Mr Peter Charleton, Senior Counsel, for the Director of Public Prosecutions, argued that the charge of the learned trial judge was correct. In particular it was in accordance with section 4 of the Criminal Justice Act, 1964, with the judgment of this court delivered, by Blayney J, in 1994 in DPP v Cumberton (unreported December 1994) and R v Anderson and Morris [1966] 2 Q.B.110.
It is then necessary to look at what the learned trial judge said to the jury. He ascribed to the prosecution the argument that “if a person is involved in a joint enterprise, that anything that is done in furtherance of that and if that is contemplated at the time of that, embarking on that enterprise, both are equally guilty.” He then gave a concrete example of a “wheelman” outside a bank during the perpetration of a robbery, where one of the participants shots a teller. He said: “He doesn’t do anything like that but he is as guilty of murder as the person, who pulls the trigger if he knew about the guns and if he knew that they intended, if necessary, to shoot to kill, even though he never had his hand on the gun, because it’s a joint enterprise, it is a common enterprise, the killing is done in furtherance of it.” He then referred to the facts of the case and the prosecution allegation that “the accused man and Mr Sage went out on this expedition to beat up, to inflict serious injury on Mr Carroll or otherwise to kill him.” He said later: “It must be part of a common design and it must be contemplated that serious injury will take place.” Counsel for the Applicant requisitioned the learned trial judge on two matters, one of them being the charge regarding common design. He was asked to direct the jury that its was a matter for them on the basis of the evidence to decide what, if any, common design was applicable but specifically to invite them to consider whether the ratchet was part of the common design. He said he was reluctant to redirect them in the latter respect, explaining that there could be a common design that somebody would get beaten up without knowing it was going to be a ratchet or a boot or whatever. He did recall the jury and said that a common design can arise spontaneously.
The first respect in which the charge was criticised related to his supposed failure to ensure that his explanation of the issue of common design or joint enterprise was not merely stereotyped. The court is satisfied that it did not fail in this respect. The judge gave the jury the vivid example of a “wheelsman” waiting outside a bank and knowing that arms were being used in a robbery. This brought the idea to the attention of the jury in a concrete way. The judge was entitled, on the facts of this case, not to draw attention to the issue of the ratchet in the specific way requested by the defence. It was abundantly clear from the run of the case as a whole that the prosecution cases depended heavily on the statements. If they were not believed and if, on the contrary, the evidence of the accused was believed, it was clear that he took no part in the killing. However, if the jury believed what the accused was recorded as having said in his statements, then he was part of a common enterprise with Michael Sage which involved the commission of serious assaults and the infliction of serious injury on John Carroll. If that was in contemplation, it did not matter that a ratchet as distinct from any other instrument for the infliction of pain was used.
The court is satisfied that the charge of the learned trial judge in this case was correct in law. Section 4 of the Criminal Justice Act, 1964 provides:
“4.—(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.
(2) The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted”.
An intention to cause serious injury is enough. The manner in which the rules of the common law with regard to common enterprise are to combine with this section appears from the judgment of this court, delivered by Denham J in People (DPP) v Doohan [2002] 4 I.R. 463. It was a matter for the jury to decide on all the evidence what the common enterprise was. Clearly, the jury rejected the exculpatory account given by the accused in evidence. Otherwise, they would not have convicted. Once they accepted his statements, they had clear evidence that the Applicant was party with Michael Sage to a change of the plan to bring John Carroll to hospital, but rather, because “he knew too much about us,” to bring him to a quiet country place and to cause him serious injury. The statements contain several admissions of violent assaults on the unfortunate John Carroll, of his knowledge of Michael Sage’s malign intent and of the fact that he assisted him in getting John Carroll out of the car, even to the extent of holding him up while Michael Sage beat him with the ratchet. In reality, it is stretching the notion of common enterprise very far to apply it to these facts. If the Applicant held up John Carroll, while Michael Sage beta him with the ratchet, this was as much a direct killing as if he had handled the ratchet himself. In these circumstances, the court is satisfied that no issue arose on the only evidence capable of convicting the Applicant of Michael Sage going beyond any supposed common enterprise.
Ground 4
The Applicant also complains that the learned trial judge did not properly explain the need for there to be corroboration of the statements of the Applicant for the purposes of section 10 of the Criminal Procedure Act, 1993. That section provides:
The learned trial judge charged the jury in accordance with the section. He said that there was confession evidence and that, subject to one matter, it was not corroborated. He also said that it was for the jury, not the judge, to decide what evidence was corroborated.
However, counsel for the Applicant argues that the learned trial judge did not give a sufficiently clear warning. The judge should, he said, ensure that he is not merely enunciating a stereotyped formula of the type criticised, in the case of identification evidence, in People (Attorney General) v Dominic Casey [1993] I.R. 33. He also relied on the decision of this court in DPP v Connolly [2003] 2 I.R. 1.
The learned trial judge did not further elaborate on the extent to which the jury should have “due regard” to the absence of corroboration. He did, however, suggest that there were possible elements of corroboration. These were a number of obvious and admitted lies told by the Applicant to friends, including the witnesses Anne Marie and Bernadette Fitzgerald in the days immediately after the death of John Carroll. In the case of DPP v Connolly, this court considered that it was insufficient for the trial judge merely to direct the jury, without further explanation, to have “due regard” to the absence of explanation. In fact, the court suggested a rather elaborate formula, while making it clear that this was merely a suggestion and not mandatory. However, the section makes it clear that no particular form of words is necessary. To lay down any general requirement would take away from that statutory provision. At least in the circumstances of this case, this court does not consider that any more elaborate warning as to the absence of corroboration was necessary.
Moreover, in this case, it is to be noted that the issue of the direction pursuant to section 10 was raised in the absence of the jury before the charge. Counsel for the prosecution suggested that no more was required than the “mild warning” suggested by the section. Counsel for the accused made no criticism of this proposal, nor was there any requisition on the issue at the end of the charge. It is a commonplace of the jurisprudence of this Court that it will look hard at any attempt to rely on a legal point, particularly one relating to the correctness of the judge’s charge, where no point has been taken about it in the trial court. This was not an ordinary simple case of an uncorroborated police confession. There was extensive evidence of prolonged dealings between the accused and John Carroll in the hours leading up to his death. The lies told after the death were material from which the jury, on their findings, are very likely to have placed reliance.
The court does not think, in the circumstances of this case, that the charge was inadequate.
Accordingly, the court refuses the application for leave to appeal.
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