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COURT OF CRIMINAL APPEAL
McGuinness J.
Butler J.
Abbott J.
134/03
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
.v.
GEORGE CHRISTO
APPLICANT
Judgment of the Court delivered the 31st day of January 2005 by McGuinness J.
INTRODUCTION
The Applicant, who is a native of Liberia, was indicted before Cork Circuit Criminal Court on one count of assault causing harm contrary to section 3 of the Non- Fatal Offences Against the Person Act 1997. He was charged with having assaulted one Sonya Coakley-Hanan on the 30th August 2002 at the Coal Quay in the City of Cork.
He was charged before his Honour Judge O’Donnabháin and a jury on 7th July 2003 and was convicted on the same day by the jury, the verdict being unanimous. On that day subsequent to the applicant’s conviction the victim of the assault gave evidence pursuant to section 5 of the Criminal Justice Act 1993 concerning the impact of the incident on her. On 9th July 2003 there was a sentencing hearing before the learned trial judge at which Garda evidence in respect of previous convictions of the applicant was given and a plea in mitigation was heard. The applicant was sentenced to two years and six months imprisonment backdated to 26th February 2003, the day that he was first taken into custody.
Leave to appeal was refused. By notice dated the 14th July 2003 and filed 18th July 2003 the applicant sought leave to appeal against both conviction and sentence. The applicant subsequently instructed his present solicitor, who filed the following two grounds of appeal on 19th April 2004:
1. That the learned trial judge erred in law in his instruction to the jury regarding identification.
2. The verdict of the jury went against the weight of the evidence.
It was also stated as a third ground of appeal that the applicant reserved the right to apply to this court to amend his grounds of appeal upon being provided with a transcript of his trial.
On 4th November 2004 the applicant served written submissions on the Director of Public Prosecutions which included a number of additional grounds of appeal. On 9th November 2004 the applicant issued a notice of motion seeking leave to enlarge his grounds of appeal to include the grounds set out in his written submissions. That motion was heard at the commencement of the hearing of the applicant’s application before this court.
The applicant’s motion was grounded on the affidavit of his present solicitor, Ms Caroline Egan, who stated that after receiving the applicant’s instructions she ascertained that no grounds of appeal had been filed. Based on his preliminary instructions she arranged for the filing of the two original grounds of appeal. As her firm had not represented the applicant at the time of his trial she had very limited knowledge of the case. She instructed new counsel on behalf of the applicant. When she received the transcript of the trial she was advised by counsel that a number of further grounds of appeal arose. Ms Egan also stated that the defendant was unable to instruct her fully in relation to all aspects of the trial because he was not fully conversant with the law and his first language was not English. The applicant therefore sought to rely on the following additional grounds of appeal:
(a) the minimalist nature of the identification offered by the injured party was such that it is respectfully submitted that the learned trial judge should have removed the matter from the consideration of the jury.
(b) The requisite charge to the jury as in the case of the case of the People (Attorney General .v. Casey) (No. 2) was in all the circumstances inadequate and in addition was given in a fashion which was liable to weaken its import on the jury. It is further submitted that the jury was not warned of the dangers of relying on cross-racial identification and the proven difficulties demonstrated by such identifications.
(c) Given the minimalist nature of the identification here and the dangers of cross-racial identification in this case and generally, it is respectfully submitted that this is a case which required the holding of a visual identification parade. It is further submitted that failure to hold such a parade in this case constitutes unfair procedure and a breach of the applicant’s rights.
(d) It is respectfully submitted that the learned trial judge erred in law in admitting the statement allegedly made by the applicant, given that it was taken by a single member of the Gardai and was not videotaped despite such facilities being available. Further it is submitted that the learned trial judge made several comments during his charge to the jury regarding the permissibility of the taping of voluntary statements which are wrong in fact and in law.
(e) The disposal of the CCTV footage by the Detective Garda in this case is directly contrary to recent decisions of this Honourable Court, and it is respectfully submitted that this action amounts to a breach of the applicant’s rights.
(f) The cumulative effect of these errors is such that, when considered together, they render the verdict of the jury unsafe and unsound. It should be noted that in addition to the written submissions referred to above a book of authorities was filed on behalf of the applicant which contained, inter alia, a considerable amount of what claimed to be scientific material concerning the dangers of cross-racial identification.
The motion was moved on behalf of the applicant by his counsel, Mr Le Vert. Counsel on behalf of the Director, Mr Foley, expressed strong objections to the court permitting the inclusion of what he described as quasi-scientific hearsay evidence in a situation where no expert evidence along these lines had been brought before the trial judge and the jury at the trial. As far as the other additional grounds of appeal were concerned counsel for the Director did not raise such strong objections, but stressed that many of the matters to which they referred had not been raised by way of requisition at the trial.
This court held that it was impermissible for the applicant to rely on the written material concerning cross-racial identification. Whether scientifically correct or otherwise, such matters would have to be brought forward in the proper way through expert witnesses at the trial. They could not be brought in indirectly by way of hearsay submissions during the applicant’s appeal.
The matter of the identification itself, of course, was of crucial importance at the trial, and also formed part of the original grounds of appeal. The matter of the applicant’s racial origin and the difficulties which might be inherent in identifying him had been raised by counsel for the applicant in cross-examination at the trial. The court would therefore permit submissions regarding the identification grounds of appeal based on the established law and on the matters contained in the transcript.
The court also permitted counsel for the applicant to put forward the other additional grounds of appeal – the failure to hold an identification parade, the admission of the applicant’s statement, and the disposal of the CCTV footage.
The applicant, with the consent of the court, withdrew his appeal against sentence and pursued his appeal against conviction only.
THE FACTUAL BACKGROUND
The injured party, Ms Sonya Coakley-Hanan, was employed as a security person in a nightclub called “Fast Eddie’s”, in Tuckey Street in Cork City. At approximately 3 a.m. on the 30th August 2002 she finished work. She walked from Tuckey Street to where she had parked her car on Cornmarket Street at the Coal Quay. This entailed a walk along South Main Street and down Castle Street. On Castle Street she saw three black males shouting abuse at passing girls. She was shouted at but ignored the shouting and kept walking to her car. She was followed by the three males. She reached her car and having opened it, sat in. She was stopped from closing her door by one of the males who had followed her. This man then reached towards her into the car. She kicked the door. The man was pushed back. He lost his temper. Ms Coakley-Hanan got out of the car and was pushed by the man up against the car. He punched her in the eye. She received other punches and was kicked. A group of people approached and ran to her assistance and the man was pulled off her and separated from her. She was told by the people who rescued her to go and she got into her car and drove off. On the following morning she reported the matter to the Gardai at Bridewell Garda Station. She sustained two large scrapes across her face on her right check under her eye. She had a black eye which was very painful. She had various bruises on her chest, her ribs and her calf. Her left small finger was badly sprained and swollen. She was badly shaken.
On the night of the 5th September 2002 Ms Coakley-Hanan was about to start work at “Fast Eddie’s” in Tuckey Street. She was outside the door of the premises with other employees when she saw two black males walking along the street. She gave evidence that she recognised one of them as being the man who had assaulted her on 30th August. Together with her fellow employees she followed the man and the Gardai were called. When a Garda arrived Ms Coakley-Hanan identified the man she recognised to the Gardai. He was spoken to by the Gardai and identified himself as George Christo, the applicant. This identification was confirmed by the Gardai on that night.
On the 8th October 2002 Detective Garda McDonagh attended at 10 Anglesea Terrace, Cork, where the applicant resided at the time. The applicant was not in a position to talk to him at that time and agreed to attend at the Bridewell Garda Station that afternoon. The applicant attended at the public office of the Bridewell Garda Station and spoke to the Garda on duty. Detective Garda McDonagh was identified as being the officer who had looked for the applicant earlier in the day. Detective Garda McDonagh gave evidence that he advised the applicant that as he was in the Garda Station voluntarily he could leave at any time he wished. He invited the applicant to make a cautioned statement voluntarily and the applicant agreed to do so. The applicant was cautioned and Detective Garda McDonagh took the statement. The applicant signed both the caution and the statement. It was witnessed by the Detective Garda. The original handwritten statement was produced to the court. In the statement the applicant admitted to being on Cornmarket Street and to being involved in an incident with a woman but the incident arose by reason of the fact that the woman was asked for a lift by one of the girls he was with and secondly by himself. The woman refused rudely. He spoke to the woman and the woman then slapped him in the face. Nothing further occurred; she got into her car and drove away and he walked on.
The applicant also gave evidence at the trial. He denied that he was the man who assaulted Ms Coakley-Hanan. He admitted that he attended at the Garda Station at described by Detective Garda McDonagh. He admitted that he had been asked to make a voluntary statement but denied that he had made any statement whatsoever. His response to the request for a statement was that he wanted to talk to his solicitor before making any statement. He stated that the two signatures on the document produced by Detective Garda McDonagh were similar to his signature but were not his.
FAILURE OF THE TRIAL JUDGE TO WITHDRAW THE CASE OF THE JURY AND DIRECT AN ACQUITTAL
On behalf of the applicant Mr. Le Vert submitted that the decision The People (Attorney General) v. Casey No. 2 [1963] I.R. 33, and the analysis contained therein, essentially amounts to a legal recognition that visual identification is of itself unreliable. He had submitted that in certain cases visual identification evidence can so obviously be flawed, given the court’s awareness of its unreliability, that it moves from the category of something which can properly be considered by a jury (even with the strongest of warnings), and into the category of material upon which it would be manifestly unsafe to convict. He submitted that the statement of the accused, taken at its height, could not take from the fact that the case against the accused came down to a visual identification of the assailant.
Mr. Foley for the respondent argued that the time for making such a submission was during the course of the trial and that no application in that regard was made. He further submitted that the reason counsel for the applicant did not apply for a direction in relation to this aspect of the case was that counsel for the applicant had been present in court, and had seen the strength and credibility of the evidence given by the injured party, and the witnesses for the prosecution. He said that defence counsel was also in court to see the evidence given by the applicant, which was evidence which directly contradicted the evidence of the injured party, and, that being so, there was an issue of fact for the jury to determine.
The court considers that the case R. v. Galbraith (1981) 1 WLR 1039 sets out the criteria upon which a trial judge might decide to withdraw the case from the consideration of the jury on an application for a direction, and is of the opinion that the circumstances in which such a direction may be given are appropriately described in the judgment of Lord Widgery C.J. in Reg v. Turnbull (1977) 1 Q.B. 224 at pp. 229 and 230 where he states:-“when, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.”
In this case the court is not satisfied that the test set out in Reg v. Turnbull for the granting of a direction for the withdrawal of the case from the jury has been met for the following reasons.
1. the injured party observed and had an opportunity to observe the assailant in conditions of good street lighting although the assault alleged occurred at night;
2. the injured party gave evidence that she observed the assailant for some time before the assault took place, observed him taking off his glasses having spoken to her, and then observed him for some minutes after he had struck her in the eye, and while she struggled with him.
This ground of appeal therefore fails.
REQUIREMENT OF AN IDENTITY PARADE
In dealing with the various grounds of appeal put forward by the applicant it must at all times be noted that the only requisition made at the time of trial by then counsel for the applicant related to the matter of the video recording of the Garda interview of the applicant.
Counsel for the applicant, Mr Le Vert, accepted that in the case of the alleged wrongful failure to hold an identity parade this issue was not in any way canvassed before the trial court and no direction was sought in regard to it. He submitted, however, that the failure to raise this issue at trial was not a bar to this court considering the issuing on its merits in order to ensure the interests of justice. This court has agreed to consider this and the other issues raised by Mr Le Vert but in the circumstances the court would need to be strongly persuaded that some injustice had in fact occurred to the applicant in order for these grounds of appeal to succeed.
Mr Le Vert submitted that a visual identification parade was a highly valuable tool to utilise when identification was at issue. He relied in particular on the decision of this court in The People (Director of Public Prosecutions) v O’Reilly [1990] 2 I.R. 415. In that case this court (O’Flaherty J.) had held that:
“The court is clearly of the opinion that [the instant case] is a case that required the holding of an identification parade and the court will deprecate any suggestion that the holding of formal identification parades has outlived their usefulness; they are important in that they provide a filter for both prosecution and defence.”
Mr Le Vert stated that the circumstances of that case were very similar to those in the instant case in that the injured party had suffered severe fright and her chances of observing her attacker were limited.
Counsel for the Director submitted that in the present case the evidence before the jury was that the injured party, without assistance from any other person including the Gardai, identified the applicant as being the person who had assaulted her. If an identification parade had been held and the injured party again identified the applicant the highest the evidence could have been put was that the injured party had successfully identified the same person that she had identified already five days after the event. It could not have been used as evidence against the person involved in the original incident.
In D.P.P. v O’Reilly, unlike the present case, the injured party had not made any independent identification of her attacker. She was brought by the Gardai to the local courthouse and asked by them if she recognised one of a group of men who were present there as the man who had been at her house. In addition to other circumstances Mrs O’Reilly was aged 81 and in very poor health.
This court accepts the submission made by Mr Foley that an identification parade in the present case would serve only to reinforce the identification already made by Ms Coakley-Hanan in the street. This would, in fact, be prejudicial to the applicant.
In D.P.P. v O’Reilly this court held that while there was no rule of law or practice that required visual identification of a person to be proved by means of a formal identification parade the circumstances of a case may require the holding of an identification parade. In that case due to the manner in which the Gardai arranged for Mrs O’Reilly to identify her attacker the court decided that an identification parade was required and allowed the appeal.
In the circumstances of the present case this court believes that the holding of an identification parade was not required, and would have added nothing to the quality of the identification evidence already available to the court. This ground of appeal therefore fails.
THE ADMISSION OF THE STATEMENT OF THE APPLICANT INTO EVIDENCE
In regard to this ground counsel for the applicant submitted that the circumstances in which the alleged statement was made by the applicant were such that they rendered it extremely suspect and that therefore its admission into evidence amounted to an error in law. The circumstances in which the alleged statements were taken from the applicant were outlined to the trial court by Detective Garda McDonagh. The applicant came to the Garda Station voluntarily where, according to the Detective, he agreed to make a statement. This was taken by the Detective on his own with no other member of the Garda present. It was not videotaped, though the Detective testified that the statement was taken in a room which had videotaping facilities. The applicant in his evidence at all times denied making any statement at all. He testified that he met the Detective in the public area of the station, that the Detective asked him to make a statement, that the applicant explained to him that before he did so he would need to consult with his solicitor and that he then left the station. Thus, Mr Le Vert argued, the jury was left with the situation in which one party said one thing, the other party said the opposite, and the means which existed to resolve the situation beyond any doubt whatsoever were not supplied. Mr Le Vert acknowledged that in D.P.P. v Martin Connolly [2003] 2 I.R. 1 this court held that there were no regulations which required the presence of more than one member of the Gardai in an interview. However he submitted that this was a practice which was so unsatisfactory that it amounted to a breach of fair procedure. It led to the situation in which the jury was presented with two versions of an event, one given by a person in a position of authority and one given by a person who was in reality a suspect.
In regard to the matter of videotaping the interview with the applicant, Mr Le Vert drew attention to a passage from the judgment of this court (Hardiman J.) in D.P. P. v Connolly (cited above). Hardiman J. stated on behalf of the court (at p.17 of the Report):
“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most first world common law countries…The courts have been very patient, perhaps excessively patient, with delays [in implementing the recording of statements by accused]. The time cannot be remote when we will hear a submission that, absent some extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted) it is unacceptable to tender in evidence a statement which has not been so recorded.”
Counsel accepted that in D.P.P. v Connolly the situation was one where the accused person was in custody under the provisions of the Criminal Justice Act 1984, but he stressed that even in situations where a person attended voluntarily at the Garda Station it would be extremely desirable that a recording be taken of the relevant interview.
Counsel for the Director submitted that the learned trial judge did not err in law in allowing the statement of the applicant to go to the jury. The evidence before the court which was agreed by the applicant was to the effect that he had attended voluntarily at the Garda Station. The Gardai had at all times being polite to him. The Garda evidence was that the applicant had been requested to make a statement, he agreed to do so, a statement was taken from him in handwriting and he signed it. The applicant accepted that he had been requested to make a statement but denied that he did so. He claimed that he said he wished to consult with his solicitor first. He denied that the two signatures on the statement were his signature although they looked like his signature.
Mr Foley submitted that the Detective Garda did not breach any rule or procedure or right of the applicant in taking the statement. He followed the normal procedures for a person who attends voluntarily at a Garda Station and agrees to make a statement. If two Gardai had been present the jury would have been presented with a situation where there were two persons of authority giving evidence against the applicant which would certainly not be an improvement on the position that obtained at the trial. In regard to the question of video recording of the interview Mr Foley submitted that photographing or recording a person is an invasion of their privacy and can only be done subject to law and/or with the consent of the person sought to be videoed, photographed or recorded. The video taping of interviews in Garda Stations arises only where the person concerned is held in custody whether under the Criminal Justice Act 1984 or otherwise. The matter was covered by the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997. Other than under those regulations the Detective Garda had no entitlement to video tape his interview with the applicant or the statement made by the applicant. The learned trial judge had not erred in law in telling the jury that the investigating Garda was not entitled to video the applicant while giving his voluntary statement. If the applicant wished to ensure that the taking of his statement was videoed, he could request for that facility and if the facility was refused he could decline to make a statement. As an alternative the applicant could, if he so wished, bring a prepared statement to the Garda Station and sign it. The applicant was not arrested and nor was he forced to make a statement.
This court notes that in Director of Public Prosecutions .v. Martin Connolly {2003] 2 I.R. 1 it was pointed out that under the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 there is no regulation which requires the presence of more than one member of the Garda in an interview. These regulations, of course, cover the situation where a person is being held in custody under the 1984 Act but the same situation would apply a fortiori where the person attends voluntarily. As was stated by the court in Connolly (at page 4):
“There is no basis on which it can be urged that, as a matter of law, there is any impropriety in questioning a suspect with only one Garda present. It is, at most, a matter which might be urged against the reliability of the statement. The court does not propose to interfere with the conviction on this ground.”
In the present case there is no suggestion whatsoever that Detective Garda McDonagh behaved other than politely or that he offered any inducement to the applicant to make a statement. A full voir dire took place at the trial and submissions regarding the admissibility of the statement, including reference to the need for video recording, were made by Mr O’Leary, then counsel for the applicant. The learned trial judge then ruled the statement admissible, while stressing that the onus was on the State to proof that it was a voluntary statement (Book B page 43).
It seems to this court that the learned trial judge did not err in his decision to admit the applicant’s statement. No breach of the law was involved in the process of interviewing the applicant and the taking of his statement. The evidence of Detective Garda McDonagh was before the jury as was the evidence of the applicant. It is clear that the jury decided as a matter of fact to accept the evidence of Garda McDonagh.
Mr Le Vert also submitted as a matter of law that the learned trial judge erred in stating specifically in the course of his charge to the jury that the Detective Garda was “not entitled to video – the Guard can only use video or audio recording if he arrests a person”. No authority was opened to this court to establish as a matter of law whether the Garda was or was not entitled to make an audio or video recording of an interview with a person who attended voluntarily, as opposed to being in custody, at a Garda Station. While this court notes and emphatically concurs in the remarks of Hardiman J. on behalf of the court in Connolly concerning the general desirability of the audio visual recording of interviews, it seems to the court that the relevant issue in the present case was whether the actual failure of the Detective Garda to record the interview rendered the statement inadmissible. This issue was unaffected by the learned trial judge’s expressed opinion regarding the Detective Garda’s legal entitlement to record it.
In summary this court is of opinion that there was no error in law on the part of the learned trial judge in admitting the applicant’s statement. This grounds of appeal also fails.
THE DISPOSAL OF THE CCTV TAPE
The evidence at the trial was that the investigating Garda recovered CCTV footage from a street camera located in the general area where the assault took place. He examined the footage and ascertained that it did not show the actual location of the assault. Because he was of opinion that it was of no assistance to the investigation he disposed of the tape.
During the course of the trial then counsel for the applicant, Mr O’Leary, cross-examined Detective Garda McDonagh at some length in regard to the CCTV footage and established that at the relevant time the camera was not pointing towards Cornmarket Street, where the assault occurred, but he did not raise any specific point as to whether the disposal of the tape was wrongful. In his address to the jury he referred briefly to the matter as follows (Book B page 73):
“In this case we don’t have any video evidence which would be great. Even though there is a large camera there we don’t have it. Detective Garda McDonagh said there was nothing of any probative value there. He can’t remember but we don’t have it.”
In this court counsel for the applicant submitted that the course of action by the Detective Garda in this case, in which he appointed himself sole arbitrar of the relevance of evidence in the case against the applicant and disposed of it when, according to him, it was of no use to him, was directly contrary to the applicant’s rights to fair procedures and directly contradicted recent decisions of this court in this area.
Mr Le Vert here relied on the decision of this court in Braddish v Director of Public Prosecutions [2001] 3 IR 127. In that case a video tape had not been preserved for a trial of an accused. The court held that it was the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt or innocence. The court held that the prosecution was not entitled to take the view that, once they had better evidence or evidence more convenient to them to deploy, they were entitled to destroy the evidence which first came to hand.
Mr Le Vert went on to submit that in the instant case the video was of the area during the time and the place of the assault but according to the Detective Garda it did not show the assault. However, much like the status of the alleged statement made by the applicant, the court of trial had only his word on this because he destroyed the tape after viewing it. This was entirely unfair and improper. The applicant was as a matter of right entitled to view such evidence himself and evaluate its worth. Mr Le Vert pointed out that in Braddish, Hardiman J. on behalf of the court had stated (at page 134):“Moreover, a member of the Garda Siochana is not entitled to dispose of evidence, or omit to disclose it, simply because he personally has formed the view that it would not be helpful.”
Counsel for the Director submitted that the present case could be clearly distinguished from Braddish v D.P.P. on the facts. In Braddish the video tape had purported to show the robbery in progress and was returned to the owners after an admission of guilt by the accused. It was returned because the prosecution had made a decision not to rely upon it. It was held by the Supreme Court that evidence relevant to the guilt or innocence of the accused must, so far as it was necessary or practicable, be kept until the conclusion of the trial. In addition, this principle applied to the preservation of articles which gave rise to the reasonable possibility of securing relevant evidence.
In the present case, Mr Foley stated, the evidence in respect of the CCTV camera was to the effect that there was not a video recording of the incident. The camera which was in a position to record was not pointing at the place where the assault was alleged to have taken place. Detailed evidence had been given as to the manner of operation of the CCTV camera in question. Unlike the tape in the Braddish case the tape in the present case did not contain any evidence relevant to the guilt or innocence of the applicant, nor did it give rise to the reasonable possibility of securing any relevant evidence. Mr Foley also stressed that the issue of the absence of the video was not raised by counsel for the applicant with the trial judge in the course of the trial.
At Book B of the transcript of evidence (page 53 onwards) Detective McDonagh in reply to cross-examination by Mr O’Leary explains that he obtained the video tape from the relevant street camera some time after the event. He examined it but found there was “nothing relevant whatsoever” on it. He did not retain the tape. His evidence continued as follows (at page 54):“Q. Is it the case then that as you said I think correctly the video camera does as it were rotate. So from the description as given by the complainant it could see where she says an assault took place, isn’t that right?
A. - That is correct My Lord.
Q. It is not a question that the video camera couldn’t see it. It actually could see it. But you’re saying that there’s nothing of relevance there, is that right?
A. - It depends on where the camera is pointing. If it had been pointing in the right direction that night it would have been great
JUDGE: Did you say a tape?
A. - I viewed the video my lord. It was of absolutely no evidential value. It was pointing a completely different way.
JUDGE: Can you remember?
A. - No, my lord I can’t. I look at so many videos I just cannot remember.
Mr O’LEARY: So I suppose to put it in this very fair way. I hope it is fair – I shouldn’t chacterise my own questions. You are saying the video camera wasn’t pointed up Cornmarket Street as it were in the direction of the Bridewell Garda Station for that relevant period of time, is that right?
A. - My lord, I can’t actually remember where it was pointing. I went through the whole thing and it wasn’t pointing where this assault had taken place. It was absolutely no good to me so I didn’t retain it. If there was anything on it I would have retained it, my lord.Q. I don’t want to labour the point but I presume if there was nothing you say of evidential value that means you say by definition it was not pointing up Cornmarket Street at that time?
A. - That would be correct.”
Further questions concerning the technicalities of the camera system were put to the Garda both by the trial judge and by Mr O’Leary but nothing further of relevance emerged.
In Daniel Braddish v Director of Public Prosecutions [2001] 3 IR 137 a robbery had been committed in a shop protected by video surveillance. A Garda viewed the tape and formed the view that the video showed the robbery in progress and that the applicant was the person shown committing it. The applicant, while in custody, made and signed a statement admitting to the robbery and nine months later he was charged with the robbery. At the applicant’s first appearance in the District Court his solicitor requested the statement, video footage and stills. This request was repeated in correspondence some time later but the applicant’s solicitor was informed by letter that the videos were no longer available as they had been returned to the owners after the applicant admitted the crime. The applicant brought judicial review proceedings, was refused relief in the High Court but succeeded on appeal.
It was held by the Supreme Court that evidence relevant to guilt or innocence must, so far as was necessary and practicable, be kept until the conclusion of the trial. In addition, this principle applied to the preservation of articles which gave rise to the reasonable possibility of securing relevant evidence.
In his judgment (at page 130) Hardiman J. characterised the issue in the case:“It will be seen that the issue raised by the applicant is a net one. Does the fact that the video tape is unavailable because the Gardai parted with possession of it require in the circumstances that the further prosecution of the applicant be restrained? In addressing this issue it is important to recall that the video allegedly shows the crime in progress and allows the identification of the perpetrator. No other identification evidence was apparently available and no person was asked to see if he or she could identify the applicant even though it appears from the papers that there was at least one eye witness to the robbery.”
The learned judge went on to say at page 132:“This video tape was real evidence and the Gardai were not entitled to dispose of it before the trial. It is now admitted that they should not have done so. Lest, however, the sentence already quoted from the State’s Solicitor’s letter…can be read to suggest that because the prosecution was based wholly on an alleged confession, other items of evidence can be destroyed or rendered unavailable, I wish to state emphatically that this is not so. It is the duty of the Gardai, arising from their unique investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of guilt of innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of whether it assists the case the prosecution is advancing or not.”
In the later case of Dunne v Director of Public Prosecutions [2002] 2 IR 305 it was stated by Hardiman J. (at pages 323 to 325): “The emphasis, which is quite explicit in both Braddish v Director of Public Prosecutions [2001] 3 IR 127 and in this judgment, on the need for the obligation to seek out, and indeed to preserve, evidence to be reasonably interpreted requires, I hope, that no remote, theoretical or fanciful possibility will lead to the prohibition of a trial.....The exercise of [this] jurisdiction must be careful and realistic. There is also responsibility on a defendant’s advisers, with their special knowledge and information, to request material thought by them to be relevant.”
In that case also McGuinness J. stated (at page 309 of the Report):-
“Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”
Whereas in the case of Dunne v Director of Public Prosecutions the matter in question before the court was the prohibition of a trial that had not taken place. The comments in both judgments are equally relevant in regard to an actual trial and are, it seems to this court relevant in particular to the facts of the instant case.
These judgments are, of course, binding on this court. However, there are, as Mr Foley points out, clear differences between the facts of the quoted cases and the facts of the present case. There is no basis provided in this case for any suggestion, for example, that the video tape contained “evidence having a bearing or potential bearing on the issue of guilt of innocence”. Clear evidence was given at the trial that it did not, and while that evidence was elicited by way of cross-examination it was not challenged. Unlike the other cases, there appears to be no evidence of any kind that the applicant’s original solicitor sought to examine the tape at any stage.
This court believes that in the circumstances it would have been both proper and desirable for the Garda concerned to have retained the tape in question until the time of trial. However, given the absence of a request to examine the tape, the lack of any real challenge at trial to the officer’s failure to retain the tape, and the complete failure to raise the point of law with the learned trial judge, it does not appear to this court that the applicant can be permitted to raise this entirely new issue by way of appeal to this court.
This ground of appeal, therefore, also fails.
INADEQUACY OF THE CHARGE RELATING TO IDENTIFICATION
Mr. Le Vert referred to the limited description of the assailant made by the injured party in her evidence, and also to the fact that she did not give evidence relating to a scar on her assailant’s face which was shown in the course of the trial to exist on the applicant’s face.
During the course of the trial, Mr. Foley had argued that the warning of the trial judge in relation to the dangers of identification evidence was in compliance with the requirements of The People AG v. Casey requirements. This was because the injured party’s evidence in that regard was clear and to the point, that she was not a stranger to the company of black people, and, that she knew a lot of black people, and did not think that they all looked the same; that she would recognise the assailant as she saw him and that she had grown up in London and had a lot of black friends.
The court considers that the warning of the trial judge in relation to the dangers of convicting on the basis only or mainly of identification evidence is satisfactory in every way except that it does not address the issue of the difficulties of inter racial recognition which were raised during the course of the trial.
The issue was raised by counsel for the applicant in cross-examination as follows: (Book B., Pg 21)“128. I am suggesting to you, given the trauma of this event, that you were on the lookout for an individual and on the night in question a week later when you saw two black males you decided these were the individuals involved?
- No I wouldn’t say that. 129. Particularly perhaps when one of the black males was wearing glasses? I mean I presume when you saw a black male wearing glasses and you described a person wearing glasses, in fact who takes off their glasses as far as you describe it and puts them into his I think shirt pocket and then hits you, when you saw some black person walking along the street with glasses your initial reaction would be again to say that’s the person. Presumably that drew attention to him, would you accept that?
- No, I don’t think so.
130. You don’t think so.
- I know a lot of black people and I don’t think they all look the same just because they wear glasses. I would recognise this man as I saw him. I grew up in London. I have a lot of black friends. I don’t think they all look the same.”
The injured party thus asserted that whereas there might be an issue in relation to “recognition” of a black person she had no such difficulty by reason of her experience and background.
The learned trial judge dealt with this issue in his charge as part of his summary of the complainant’s evidence, as follows: (Book B Pg 87)“… It was put to her that she was on a lookout for a man, in other words once she was assaulted she was on a lookout or on the lookout for the fellow who did it. It’s almost put to her that in other words the first black man that came along she identified him or the next black man. Now I don’t know, unless she left Cork surely she would have seen a black man or a dark person in the following week. I mean it is Cork. It is 2003. She can hardly have gone for a week without seeing – that is a matter for you .”
What the court understands any jury might take from this part of the learned trial judge’s charge is that the question of inter racial identification was a matter for them, but that they had to bear in mind that the incident took place in Cork and that “…it is 2003”, thereby implying that Cork had by then become much more of a multi-racial society than it might have been hitherto. The court is of opinion that such a comment may be permissible for the purpose of enabling the jury to consider one aspect of the issue. However without further elaboration the court considers the comment to be lacking in the neutrality of a comment in relation to controversial facts which is required of a trial judge’s charge. This is especially so in the context of the warnings required by Casey, insofar as it tends to invite the jury towards a decision in favour of the identification of the accused, rather than to point out the implications of the issue raised in cross examination, and the replies of the injured party, regarding the identification of a black person in the context of the general evidential difficulties. In the circumstances the jury should have been reminded of the injured party’s explanation for her ability to “recognise” the person who attacked her notwithstanding that he was black by reason of her background experience and the trial judge should have posed to the jury the question as to whether they considered as a matter of common sense whether in the all the circumstances there is an added difficulty of inter racial recognition. This difficulty was implicitly recognised by the injured party in her evidence but in her own case she had minimised it by explaining her experience and background. The comments of the trial judge did not remind the jury of the necessity to assess and weigh up the judgment made by the injured party in relation to her claimed special ability to make an inter racial “recognition” in the light of all the other evidence in the case.
Therefore, notwithstanding that the court has not considered it appropriate that scientific evidence of any difficulties in relation to inter racial recognition be heard in this appeal, the court is of the opinion that, as the issue of cross racial identification was raised and debated in the course of trial as a matter of ordinary experience, the verdict was unsatisfactory by reason of the inadequate warning in relation to the issue contained in the charge of the trial judge, having regard to the principles set out in Casey.
The court will therefore allow the appeal on this ground and will quash the applicant’s conviction. On being informed that the applicant had served his sentence the court decided not to direct a re-trial.
DPP v Christo
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