THE COURT OF CRIMINAL APPEAL
McKechnie J.
Moriarty J.
Herbert J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent
-and-
TREVOR O’SHEA
Accused/Appellant
Judgment of the Court delivered by Mr. Justice William McKechnie on the 27th day of November, 2014.
Introduction
1. On the 30th March, 2010, a Mrs. Bridget Campbell had her handbag pulled from her person when leaving the Pro Cathedral on Marlborough Street, Dublin 1. The individual involved made his way down the steps, and made good his escape in a northerly direction. The incident and the perpetrator were both seen by a fellow Church-goer and also by a bus driver whose bus was in the immediate vicinity at the time. Shortly thereafter, the owner of a house at Champion’s Avenue, Dublin 1, observed a man throwing a handbag into her garden, which she immediately retrieved and brought to Store Street Garda Station.
2. As part of the resulting investigation the Gardaí viewed CCTV footage from numerous premises in the area, which led, some days later, to the accused being identified as a person of interest to them in respect of this crime. Subsequently he was arrested and charged with a single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. After a five day trial, he was convicted by unanimous jury verdict on the 18th January, 2012, and later sentenced by Her Honour Judge Ryan to five years imprisonment with the final year suspended on conditions. Having been refused permission by the trial judge to do so, he now seeks leave from this Court to appeal his conviction on the grounds set out in his Notice of Appeal dated the 26th June, 2012.
3. At the conclusion of the hearing, this application was refused, with the Court indicating its intention of furnishing detailed reasons therefor at a later date. This is now the Court’s judgment in that regard.
4. Although there are several grounds of appeal, the issues which these give rise to are three in number and can be described as follows: first, the admissibility of the CCTV evidence; second, the failure by the trial judge to hold a voir dire regarding objections made to certain medical evidence; and the third relates to memoranda of interviews left to the jury, which include answers from the accused such as “[n]o comment” or words or phrases to that effect.
Background
5. From the commencement of their investigations, the gardaí heavily concentrated on trying to ascertain whether or not the suspect could be seen on CCTV and, if so, whether his movements could be tracked in that way and his identity thereby established. To this end, and armed with a certain amount of knowledge regarding the incident - such as a description of the individual provided by some of the witnesses (red jacket, blue jeans and black hair), the approximate time of the robbery, and the direction in which the suspect had fled - Garda Kenny, as part of the investigating team, started his inquiries by walking up Marlborough Street in a northerly direction to ascertain whether there were any cameras which could possibly have captured images of the person in question.
6. The first camera which he identified as being potentially relevant was one attached to a car park known as Q Park, which is located on Marlborough Street. There were in fact three cameras in these premises, all pointing in the direction of the street. Having identified himself to the relevant security personnel and having outlined the purpose of his visit, Garda Kenny checked the system and viewed the recorded images over several hours until he eventually saw an individual matching the description of the alleged offender. He could also detect the direction in which that individual headed as he left the reach of those particular cameras; this in turn was indicative of the general area in which the garda should continue his investigations.
7. Garda Kenny then proceeded on his journey in the direction in which the suspect had headed until he came across the next set of cameras which might contain similar images or additional information. In all he repeated the process conducted at Q Park in respect of a further twelve premises, access to which was obtained either with permission or without objection from those in charge.
8. The exercise which he conducted whilst in each premise can be described in more detail by reference to what he did at Q Park. His first task was to check the accuracy of the date and time recorded on the computer screen. Verifying the correctness of the date was self-evident; that of the time was achieved by direct comparison to what Greenwich Mean Time showed at that particular moment. Any discrepancy and the extent thereof were duly noted. He then viewed the recorded images over a period of time, commencing before and continuing after the approximate time of the robbery, which had been given as 16:00 hours on the 30th March, 2010; in Q Park the actual period involved commenced at 14.21 p.m. and ended at 16.40. At this point he then personally downloaded the footage for the period in question onto what he described as an “R” type disk, being one which was readable only. That was then put into a protective box and taken by him personally back to Store Street, where he was stationed at the time.
9. This aspect of the investigation was carried out over several days, giving rise to hundreds of hours of recording material being downloaded. Much of the footage was not relevant and therefore, by a process of editing, Garda Kenny ultimately compiled what has been described as a “montage”, tracking the movements of the individual as he went from place to place. The discs used in the original download and also those used in this edited compilation were retained in the possession of Garda Kenny from the moment of their creation until the trial date. It was the admission of the evidence as displayed by the montage which forms the subject matter of the first ground of appeal.
10. The process above outlined was followed in the case of each premise, with the one exception being that related to the betting shop, Ladbrokes, on Marlborough Street. Garda Jordan, the principal investigating officer, gave evidence that, having contacted Ladbrokes, he spoke to a Ms. O’Kelly, with whom he was acquainted. Having given her much the same background information as Garda Kenny had, he said that Ms. O’Kelly herself viewed what was on camera and at a certain stage downloaded footage which was subsequently used to complement the information above mentioned: she then gave the disc used for this purpose to Garda Jordan, who in turn passed it on to Garda Kenny. He replicated the same process with this material as he had done in respect of all of the other footage.
11. Ms. O’Kelly, who was called as a witness, gave evidence that she worked as a security and safety investigator with Ladbrokes and was familiar with the company’s cam-disk type recording system. She told the Court that the staff of Ladbrokes had no access to the system and that in order to ensure its operational integrity, they would regularly conduct a sweep from the company’s central security office in London, which would identify any faults, if such existed. If that occurred, the engineering firm which installed the system would then be called out to remedy the defects so noted. It was she who personally downloaded the material which she gave to Garda Jordan and which was subsequently used in the manner indicated by Garda Kenny.
12. Prior to but in anticipation of this CCTV evidence being tendered, counsel on behalf of the accused person successfully sought to have a number of issues surrounding its admissibility dealt with by way of a voir dire. At the conclusion of the trial within the trial, the judge rejected the defence submissions, with the result that the evidence was laid before the jury. That ruling, as I have said, gives rise to the first issue on this appeal.
Issue No. 1: The CCTV Evidence
13. There are two principle arguments made on this ground of appeal: firstly, that the Director of Public Prosecutions (“the DPP”) failed to prove the footage from which the montage was produced, as required by the law of evidence; and, secondly and in any event, that the trial judge erred as a matter of law in determining this point on the balance of probabilities, and that instead she should have applied the higher standard which is applicable to all issues in a criminal trial.
14. The submissions made on behalf of the appellant, which were advanced by Mr. Derek Cooney B.L. in a most able and articulate way, commenced by pointing out that, save in respect of one premises, the only witness called on behalf of the prosecution on this issue was Garda Kenny. Accordingly, subject to this one exception, there was no evidence from the owners, occupiers or those in control of the other premises, or from any of their employees who might have been working on the 30th March, 2010, the day in question. In particular, there was no evidence from any individual with direct responsibility for the CCTV aspect of the security system operating in such premises; this was an essential requirement in respect of the reliability and integrity of each system. The proper manner of proof was that given in relation to the Ladbrokes premises, which should have been repeated in respect of all other systems. Consequently, it was impossible to know whether the base footage was ever interfered with, altered or disturbed in these cases. In such circumstances there was insufficient evidence to prove the originality and authenticity of such recordings, and accordingly the montage created therefrom should have been declared inadmissible by the trial judge.
15. In highlighting the importance of having such evidence it was pointed out that the “time” as recorded on the systems of a number of the premises differed from real time by anything from a few minutes up to one hour and ten minutes. Despite being pressed for an explanation as to why this was so, Garda Kenny was unable to furnish one.
16. The second aspect of this submission related to the standard of proof by which the trial judge determined the issue. There is no doubt and it is not disputed but that she applied the civil standard. This, it is said, was incorrect, in that it deviated from the universal practice of determining all issues in a criminal trial on the higher standard. As this constituted a significant error of law, the trial and the resulting conviction should be regarded as both unsafe and unsatisfactory.
17. The DPP in response emphasised the qualifications of Garda Kenny who, it was claimed, had sufficient expertise to perform the tasks undertaken by him, including the creation of the montage. As he retained all of the downloaded material, as well as the Ladbrokes footage when given to him, there was, through this possession, a sufficient continuity in the chain of evidence, which remained undisturbed until the trial itself.
18. The case law opened on behalf of the accused and the DPP on the admissibility issue largely overlapped, with both parties citing R v. Robson; R v. Harris [1972] 1 W.L.R. 651 (“Robson”), R v. Stevenson [1971] 1 W.L.R. 1, Braddish v. DPP [2001] [2001] 3 IR 127 (“Braddish”), McFarlane v. DPP [2007] 1 IR 134 and DPP v. McDermott (Unreported, Court of Criminal Appeal, 17th June, 2002). That referable in particular to the standard of proof point included Woolmington v. DPP [1935] AC 462 (“Woolmington”), McGowan v. Carville [1960] I.R. 330 (“McGowan”), R. v. Ewing [1983] 2 All E.R. 645 (“Ewing”) and Sheldrake v. DPP [2005] 1 All ER 237. Robson is also of particular interest in this regard, as the trial judge in that case determined a similar issue on the balance of probability.
19. The particular submissions which each side advanced by reference to the case law are self-evident from the Court’s ruling on this ground of appeal.
Decision
20. At the outset it might be helpful to further refine or more clearly state what is and what is not at issue on this point, starting with the position of Garda Kenny. His qualifications to perform the task which he did are not in issue, nor was there any challenge to the integrity of the manner in which the material was downloaded and thereafter retained by him. Rather, the focus of the argument was that there was insufficient evidence, with the exception of the Ladbrokes footage, to prove the authenticity and originality of the remainder of the material, which self-evidently constituted the vast proportion of what was used for the compilation of the montage. It was argued that, at a minimum, some individual from each of these premises who had responsibility for and knowledge of that particular system should have been called; this for the purpose of proving, inter alia, the type and kind of system involved, the method of its operation and the manner of its functioning. This was required so that its reliability and accuracy, including dates and timing, could be verified. Such evidence, it was said, was necessary so as to exclude the reasonable possibility of any interference with or fabrication of the original material from the date of its recording until transmitted to An Garda Síochána. It is only in this way that the Court can be satisfied to admit what undoubtedly is secondary evidence, having been derived from a different source. Finally, it is accepted that in practical terms the entirety of the original recordings, amounting as they do to over 100 hours of footage, are manifestly incapable of being produced in Court.
21. By virtue of the widespread use and availability of electronic apparatus, its operation impacts on the criminal justice system in several ways, such as the recording of interviews with suspects in garda stations, the monitoring of phone calls and the carrying out of surveillance, inter alia, by continuous video recording. No longer is the legal debate centred on tape recording: it has long since moved on and has been expanded to include many other forms of media, such as film, video tape and computer output. It also includes the multiple ways in which information can be extracted from such systems and then reformulated for subsequent presentation, such as has occurred in this case (Cross and Tapper on Evidence, 12th Ed., p. 60). Whilst the admission of such evidence may be objected to as having been obtained unconstitutionally, illegally or in breach of natural justice or fair procedures, or on any of the other exclusionary rules which generally apply, the main concern in this case is not so focused; rather the point in issue centres on the twin requirements of originality and authenticity, owing to the alleged possibility of interference with or fabrication of the recordings.
22. As with any evidence, but in particular with evidence which is susceptible, at a high level of sophistication, to fabrication, tampering and interference - any one of which may escape detection even by the most skilled and knowledgeable eyes - the court must be particularly vigilant in both its admissibility and use. The capacity to distort grows ever more possible in a fast moving scientific and technological setting, the boundaries of which are far from yet being settled. This type of evidence, when objection is taken not simply on admissibility grounds, but also on credibility grounds, may require insightful scrutiny and astute analysis by the court so as to ensure that no serious danger or significant risk exists in either its admission or use.
23. In general it has been well established that photographic evidence is admissible (The Statue of Liberty [1968] 1 W.L.R. 739), as are tape recordings (DPP v. Prunty [1986] I.L.R.M. 716) and video recordings (People (DPP) v. Maguire [1995] 2 I.R. 286 and Braddish v. DPP [2001] 3 IR 127). These are all regarded as items of real evidence or sometimes as being analogous to documentary evidence. They can be tendered on the basis that, for the most part, they are produced by mechanical devices without human intervention (McGrath, Evidence, 2nd Ed., (Dublin, 2014) at pp. 907-909). At least according to one view, such evidence need only be relevant and meaningful to be accepted (Law Reform Commission, Consultation Paper on Electronic and Documentary Evidence LRC CP57-2009 at para. 6.45). Concern may arise in multiple ways regarding this type of evidence: sometimes it may be at a technical level or, as in the instant case, it may relate to what must be established so as to verify the genuineness of such evidence.
24. Rather surprisingly no Irish authority of direct relevance has been opened on this point. McGrath on Evidence (2005, pp. 691 to 692), however, was cited as follows:
“A material object is any object, the existence, appearance or condition of which is relevant to the issues in a case. Common examples would include the alleged murder weapon in a murder case, stolen goods in a prosecution for receiving stolen goods, and a product in a products liability case. In general, such objects are produced in court for inspection and examination by the tribunal of fact. However, where it is not possible or practical to produce the actual object, secondary evidence of it may be adduced.”
This extract is of course useful as it confirms what undoubtedly is the law, namely, that in certain circumstances secondary evidence, derived from and based on the original, is admissible. Such a principle is not in dispute in this case.
25. The authority which is said to be the most relevant is Robson, a decision where the admissibility of tape-recorded evidence was challenged on the basis that its originality and authenticity had not been established. That issue was dealt with in a trial within a trial, after a jury had been empanelled but before Robson and his co-accused had been given in charge.
26. The inquiry conducted by the trial judge, Shaw J., sitting as the Central Criminal Court in London, can only be described as both thorough and exhaustive. Its scope covered the history, nature and condition of the tapes, together with the actual process of recording from its commencement up to the moment of finish, as well as the whereabouts and security of all such equipment until its production in court. Evidence was firstly given by prosecution witnesses, followed by defence witnesses who challenged the history of the tapes, and, finally, in rebuttal, by a further expert called on behalf of the DPP, who strongly disagreed with the views of those last mentioned. In all, the court heard what the judge described as a “mass of evidence”, with the process lasting a full two weeks. As impressive as that appears, one cannot help but think that if such became the norm, the determination of that single issue would assume such an ascendance that the trial proper could easily be submerged into historical insignificance. Of course if the particular circumstances demanded such an in-depth analysis, then such would have to follow, but surely the occasions giving rise to such a necessity would have to be most unusual, if not indeed quite exceptional.
27. As stated, the challenge in Robson, which was two-fold, relating as it did to both originality and authenticity, proceeded on the basis that this type of evidence should properly be regarded as documentary in nature. With such evidence, the production of the original is a requirement of the best evidence rule, where that rule is applicable and is invoked. When not available its absence must be satisfactorily explained. If so accounted for, secondary evidence may be admitted in respect of matters falling within the remit of the original, provided that true copies thereof can be produced. The rule is, however, subject to the many exceptions which now exist, both under statute and at common law.
28. On the second strand of the argument Shaw J. was satisfied, from a consideration of the overall evidence, that the tapes were prima facie of adequate quality, as understood in the broad sense, so as to enable the jury to form a fair and reasonable assessment of their weight, cogency and credibility. They could also be considered on this basis as being prima facie genuine.
29. The reasons which may give rise to a challenge based on authenticity are, at one level, infinite in number, but, at another, will of necessity be circumstance-specific. In a case of tape recording or of CCTV footage, matters such as parts of the footage being incomprehensible or indecipherable, any gaps or breaks in the recording, or portions being of inadequate quality, either visually or audibly, may give rise to potential difficulties or grounds of objection. In certain circumstances such deficiencies may render what is sought to be tendered so unreliable or misleading that its admission should be rejected on the basis that the potential prejudice arising therefrom would far outweigh any evidential value which it may have.
30. Controversy in this area may arise in either one or two ways during the course of a trial on indictment held before a jury. Objection, at the level of principle, may be taken on behalf of an accused person who wishes to challenge the admissibility of such evidence in anticipation of its actual preferment. If such occurs, it then becomes a matter for the trial judge to rule in the first instance as to its admissibility. However, even if objection is not taken at that point the accused may always challenge the originality and authenticity of such evidential material before the jury. When that happens, it becomes a matter for the jury, not the judge, to evaluate the weight and cogency of such disputed evidence.
31. The resolution of a dispute in this respect may pose certain difficulties in the establishment of a clear and definitive demarcation line as between what are truly matters for the judge and for the jury. When the objection is taken and dealt with exclusively before the jury, the matter should be relatively straightforward and less problematic than if the issue falls to be determined before any such evidence is called. The former situation, as acknowledged by the context in which it is raised, will manifestly be within the jury’s remit; as such, under guidance from the trial judge, it is one of the jury’s essential functions to assess the weight and consider the cogency of such evidence, and to evaluate the credibility of the witness(es) who tender it.
32. The main difficulty arises when the judge is called upon to determine, in a voir dire, whether such evidence should or should not be admitted. This is purely a matter of law, and yet whilst the boundary line between the role of both judge and jury in that situation is well established, nonetheless in practice strict adherence to it may sometimes be contentious and often quite troublesome to maintain.
33. Assistance with this task can be obtained by considering how a trial judge should deal with an application for a non-suit, in respect of which R. v. Galbraith [1981] 1 W.L.R. 1039 remains the classic authority. The distinction between such an application and one grounded on a pure admissibility objection was considered by the CCA in The Director of Public Prosecutions v. M.J. [2014] IECCA 21. At paras. 14-18 of the judgment the Court said:
“14. Galbraith has been classically understood as setting out for a trial Court guidance on how it should deal with an application, usually made at the close of the prosecution’s evidence, to have the charge(s) withdrawn from the jury on the basis that, even if properly instructed, no reasonable jury could convict on the admissible evidence presented before it. The infirmities which might deprive such evidence of all or of most of its probative value so as to justify granting such an application, are, of course, variable, and are occasioned by many different circumstances. However, in ruling upon any such application, the judge is not technically deciding an issue of admissibility in any true evidential sense. What he is determining is whether, having considered the evidence as it stands, it is of such a character that it would be safe or unsafe to allow the jury to convict on it. If the latter, then in the absence of further evidence not so affected the trial must be terminated; if the former, its evaluation becomes a matter for the jury.
15. That type of submission is quite unlike an application usually made before but in anticipation of certain evidence, to the effect that what is intended to be led is not, as a matter of “evidence” law, admissible. The test and principles between the two situations are altogether different and should not be confused. Firstly, some observations on the evidential point.
16. At the pure admissibility level, the Director of Public Prosecutions (“the DPP”) has referred the Court to May and Powles, Criminal Evidence, 5th Ed., (London, 2004), p. 8, where the following passage is quoted:
‘The golden rule of admissibility is that all evidence which is relevant is admissible and that which is irrelevant is inadmissible. … The matter may be summarised in this way. For the purpose of a criminal trial, evidence is relevant if its effect is to make more or less probable the existence of any fact which is in issue, i.e. upon which guilt or innocence depends. Or, as Lord Steyn recently put it: ‘[to] be relevant evidence need merely have some tendency in logic and common sense to advance the proposition in issue.’” (A (No. 2) [2001] 2 Cr. App. R. 351, p. 362).’
17. As no substantive debate was had on this statement of the law, this Court does not find it necessary to offer a definitive view on either its accuracy or its completeness, but makes the following points in the context of the issue under discussion.
18. Firstly, it is a necessary precondition to the admissibility of any piece of evidence in a criminal trial (or for that matter in a civil action) that it be relevant; evidence which is irrelevant is not admissible. Secondly, “relevance”, at least in a general sense, will be established where the evidence tends to prove or disprove, or, as May and Powles say, renders it more or less probable, that the accused person did or did not commit the act in question. Thirdly, even if this threshold be met, evidence, although relevant, may not be received if any of the exclusionary rules - either common law or statute based - are applicable to it. Fourthly, such evidence may also be excluded if fairness of procedure or the vindication of constitutional or Convention rights requires it. In essence, therefore, evidence is at least prima facie admissible if relevant, material and probative, but may be excluded on any of the grounds indicated.”
As can therefore readily be seen, the legal principles in play can be authoritatively stated: it is their application in practice which causes the difficulty.
34. Before setting out what test might be appropriate on an admissibility challenge, such as that made in this case, it might be helpful to one’s understanding, if not also in formulating such test, to consider the second issue of principle which arises on this ground of appeal. It relates to what standard of proof the trial judge should apply in determining this issue.
The Standard of Proof:
35. The accused submits that, as with all other issues in a criminal trial, it is incumbent on the prosecution to establish to a standard beyond reasonable doubt, and not simply to the civil standard, that the montage footage, in its creation and presentation, complied with both the originality and authenticity requirements, as above stated. McGowan and Woolmington have been cited to support the submission that the trial judge was wrong in the approach which she adopted.
36. The DPP, on the other hand, stands by the ruling of the learned judge that the balance of probability is the appropriate test. She submits that a clear distinction exists between the legal (or persuasive) burden and the evidential burden. The legal burden, which is to the criminal standard, is the burden of proving the fact in issue and applies to all matters falling within the jury’s remit. By contrast, the evidential burden is simply an obligation to show that there is sufficient evidence for a certain issue to be left to the jury; in fact it is claimed that such is not correctly classified as a burden of proof at all, but rather, as a burden of raising the issue. In Sheldrake v. D.P.P. [2004] 3 WLR 976 at 981, Lord Bingham said:
“An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in consideration by the tribunal of fact.”
37. It cannot be disputed but that in every criminal trial, it is incumbent on the prosecution to establish the guilt of an accused person beyond reasonable doubt; such obligation applies to all elements of every count on the indictment, and the onus of proof to this end and in this regard never moves to an accused person. Whilst there are some exceptions to this deep rooted principle, mostly in particular areas and in respect of certain specified defences, all of these are well defined and narrowly focused; in any event, none arise for consideration in this case. This principle, upon which the rule of law on the criminal side is founded, has been stated by numerous judges in multiple cases throughout the years, in both this and in many other jurisdictions.
38. At p. 481 of the report in Woolmington (1935), Viscount Sankey L.C., in giving the opinion of the House of Lords in that rather famous case, considered where the burden rests in a criminal trial and said:
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle is that the prosecution must prove the guilt of prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
39. Again, no possible objection could be taken to this statement, but the background against which it was made is quite interesting and highly informative as to its significance. In establishing this principle, the House was emphatically rejecting the following passage from Foster’s Crown Law, published in 1762, which had been substantially applied as the Law of England for well over two centuries:
“In every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice until the contrary appeareth.”
40. In this jurisdiction there are several cases to similar effect, one of which is the judgment of Murnaghan J. in McGowan, where at pp. 345-346 of the report it is stated that:
“It is a cardinal principle of the administration of the criminal law in this country, which has often been stated, and cannot be too often re-stated, that there is no onus on a person charged with an offence to prove his innocence, the onus on all times being on the State to prove his guilt. To this rule certain exceptions have been introduced by statute, mainly in the administration of the customs code ... It is necessary, in my view, that the Courts should steadfastly refuse to allow any unnecessary exception to the principle which I have stated.”
This proposition is fundamental and can only be qualified by express provision, strictly construed; its force, justification and application remain, and forever should so remain, a cornerstone of our criminal justice jurisprudence. That this is so and its value and importance, it should be said, are not truly disputed by the DPP in this case.
41. As will be appreciated, none of the above cases are directly on point in relation to the issue under discussion; rather, they restate what is deeply entrenched in the Irish criminal justice system, namely, that it is always for the prosecution to prove beyond a reasonable doubt the guilt of the accused. The issue in the present case, although closely related, is not the issue of guilt: it is one of evidential admissibility.
42. On objection being taken, the learned trial judge was obliged to decide whether to admit the CCTV material by reference to the laws of evidence as established by the common law and as applied in this jurisdiction. The Oireachtas has not intervened to influence this precise issue; therefore whether statutory defences, such as those created by exceptions, exemptions, provisos, excuses or qualifications, should be regarded as imposing an evidential or a legal burden on an accused person does not arise for consideration.
43. In determining this matter it is of the first importance to recognise what exactly the trial judge was being asked to do. At no stage was it submitted that, as a matter of principle, such evidence could never be offered; rather she was deciding, in light of the evidence given and in view of the submissions made, whether the disputed material was of such a nature that it could be tendered before the jury. Was it of such a character that it could safely be left for the jury’s consideration? Having regard to the challenge made, the learned judge had to consider whether such material remained intact and whether its probity had been preserved. That was the task she faced; as important as it was, it went no further than that. In short, she had to ask herself whether the DPP had established a prime facie case as to the integrity of that material. If the trial judge was so satisfied then the evidence, as a matter of law, was admissible.
44. In conducting this exercise, the judge was not required to form any further view as to the reliability of such material; in fact it would have been quite wrong of her to do so, as all questions of weight and cogency, subject to Galbraith, are solely a matter for the jury. The judge’s role thus was entirely distinct from that of the jury. The judge, as I have said, was not considering the issue in the context of guilt or innocence. That is a jury function. Once the evidence was declared admissible, as that term should be understood, it then became a matter solely for the jury to decide whether it was reliable or misleading; and, if either, to what extent; and, overall, what weight should attach to it. These are pure matters of credibility, in the broadest sense of that term.
45. With regard to each and every aspect of the charge, the DPP retained the obligation of proving beyond a reasonable doubt that the accused was guilty. To that end, the jury received an instruction from the trial judge as to where the burden of proof lay, the standard of that burden, and, was told, in particular, that at no stage did there rest an obligation on the accused to establish his innocence. In practical terms, the jury were instructed that they would have to be satisfied beyond reasonable doubt on all issues to which the evidence applied. These are the matters which determine guilt or innocence. This is not what the trial judge was doing in the ruling made by her.
46. Finally it should be pointed out that if the appellant’s submission was correct on this point, it would inevitably have meant that the trial judge would have encroached upon the jury’s function by testing the evidence to the criminal standard, which inevitably would also have involved assessing its weight and cogency. That was not her function. In fact, such an approach could give rise to serious difficulties for the integrity of the trial itself in that diametrically opposed views could exist, between judge and jury, regarding the same evidence. Moreover, what direction would a judge give to the jury in such circumstances: one fraught with difficulty, I suspect. That should not be the situation. Consequently, the Court is satisfied that the balance of probabilities is the correct standard.
47. The appellant cited R. v. Ewing as an authority for the higher standard. I am not at all certain that the court so held, as much of the debate was specific rather than general, and centred on the relationship between section 8 of the Criminal Procedure Act 1865 and an identically worded provision on the civil side, being that contained in the Common Law Procedure Act 1854. In any event I do not see from the judgment where any of the potential difficulties which are above mentioned have been addressed or even discussed. Accordingly, I am not disposed to treat the decision in the manner suggested, but even if I am wrong in this regard I would respectfully take a different approach.
48. Whilst R v. Ewing (as approved in R. Minors; R v. Harper [1989] 1 W.L.R. 441 at p. 448) could be said to support the proposition that criminal standard of proof is to be used for deciding issues of admissibility (see also Phipson on Evidence, 18th Ed., (London, 2013) at para. 6-04), a different view was expressed by Shaw J. in Robson at pp. 653-654, which in my opinion is the better view.
49. The situation is similar in Scotland where, in Platt v HM Advocate [2004] S.C.C.R. 209, Lord Justice General Cullen, in delivering the opinion of the Appeal Court of the High Court of Justiciary, stated as follows:-
“Secondly, we are not persuaded that, by reason of some form of analogy, the standard of proof which has to be applied by the jury should also be applied by the judge in determining whether evidence of an accused's statement has been fairly obtained. In view of the presumption of innocence it is understandable that the Crown have the persuasive burden of proving beyond reasonable doubt that the accused is guilty … Where there is an issue in regard to the question of fairness, it is, as in other questions of the admissibility of evidence, for the judge to decide the relative strength of the cases for and against admissibility and, in our view, he should do so on the balance of probabilities.”
50. Equally so in the United States; the majority of the US Supreme Court, in Bourjaily v. United States, 483 U.S. 171 (1987), held that:
“We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case, see In re Winship, 397 U.S. 358 (1970), or a civil case.”
51. Furthermore, the situation in Australia with regard to confessions (Wendo v. R (1963) 109 C.L.R. 559; R v. Clark (1984) 11 A.C.R. 257) and dying declarations (R v. Donohue [1963] S.R.N.S.W. 38) is that the prosecution needs to establish facts justifying admissibility only on the balance of probabilities. The standard of proof in respect of the admissibility of such evidence is not at issue on this appeal. The point of relevance is the standard of proof for the admission of CCTV footage into evidence. For the above reasons, I am satisfied that the learned trial judge was correct in applying the standard of the balance of probabilities to the footage.
52. Turning again to the submission that the DPP failed to prove the footage, the Court is of the view that the requirement of originality is well-established, easily understood and does not require re-statement. The test as to authenticity cannot be described more than in general terms. If continuity, clarity, and coherence are established, then one may ask whether the evidence is of such a quality that a jury can conduct a fair and reliable assessment of it. If so, what weight, cogency and credibility should be given to it is a matter for them.
53. Where a challenge is made on any aspect of what is covered by the phrase “authenticity”, there will be an obligation on the DPP to meet it. The type and extent of evidence necessary to rebut such a challenge will vary depending on the nature of the objection, which in this case is firmly based on the alleged possibility that the material recorded at source could have been fabricated, tampered or interfered with. Where the accused has satisfied the evidential burden of raising the issue, the prosecution’s evidence may have to reflect that which was tendered in respect of the Ladbrokes footage.
54. It will be recalled (paras. 10-11, supra) that a Ms. O’Kelly, in whose remit the operation of the relevant system was, gave evidence in respect of this recording. This witness clearly indicated the type and kind of system in place, how and in what manner it operated, and that it functioned properly at the relevant time, with regular checks being undertaken to identify any faults and, if same are discovered, the manner in which they are corrected. She also informed the court of her personal role in downloading the images, with possession of the disc thereafter being fully accounted for up to the date of trial. Finally she removed any concern that staff members may have had inappropriate access to the system. In effect, the overall evidence, as it relates to Ladbrokes, defined and described the province and history of the recording up to the moment of its downloading, which of course covered the crucial period in issue. Therefore, there is no doubt but that in this Court’s view such evidence, if accepted, constituted a sufficient basis for the trial judge to have admitted the footage.
55. As previously stated, the evidence in relation to the other thirteen pieces of footage did not cover these matters. In fact, no attempt was made in respect of these other premises to replicate the detail of the Ladbrokes material and, further, there was nothing said or submitted to justify or even explain the oddity of this contrasting situation. This is altogether surprising, particularly as on any reading of the case the CCTV evidence was likely to be of a decisive nature in establishing the guilt or innocence of the accused. Whilst it is true to say that mechanical devices were involved in all such premises, nonetheless, apart from that at Ladbrokes, in reality very little else is known of the individual systems.
56. This ground of appeal, however, must ultimately be dealt with in the context of the actual facts and the nature of the objection advanced. Regarding the facts, the exercise conducted by Garda Kenny was somewhat complicated, involving the viewing of footage at different premises over several days and downloading what was said to be hundreds of hours of such material. From that, by a process of detailed editing, the montage emerged. The situation is therefore quite unlike a single or even a number of inter-related cameras all operated by and within the control of one system, where the downloaded footage would be more directly proximate to the original. Consequently, there was quite a significant amount of adjustment involved in this operation. Nonetheless, each linkage tended to verify the other, a point I will come back to in a moment.
57. It must be noted that the objection made does not challenge the qualifications of Garda Kenny to carry out this exercise and this is therefore not in issue; neither was there any concern expressed about the manner in which this member viewed the original footage or saved what he regarded as important; equally so with both the method and means used by him in creating the resulting montage. Therefore what is involved is not a copy of an original as such, but rather a compilation from a number of different originals. This compilation, whose authenticity of itself is not challenged, is what constitutes the disputed evidence. Finally, it is of some significance that at all times access to the original material could have been obtained if required.
58. If the footage in issue had been extracted from a single recording by some editing process, and if the accused had evidentially put in issue its integrity, this Court might have taken the view that by reason of the inadequacies above identified, including the unexplained time discrepancies, the trial judge could have been justified in refusing to admit it. In such circumstances it may have been difficult for the DPP to eliminate, to the required standard, the reasonable possibility of the original material having been somehow tampered or interfered with, or fabricated. However, this is not a case involving a single recording where an objection on specific grounds has been raised. There have in all been fourteen pieces of footage and thus the montage is a pictorial continuum compiled from such pieces. It is therefore highly unlikely that all or a significant number of the recordings, in their original settings, had been accessed and interfered with prior to the involvement of Garda Kenny. The Court is satisfied that a reasonable doubt does not exist in this respect. It is only on this basis and in these rather unusual circumstances that we reject this ground of appeal and conclude that the admission of the evidence was justified.
Issue No. 2: The Dispute Regarding the Medical Evidence
59. The second issue arises out of the following circumstances. At about 16:35 on the 7th April, 2010, when the accused was being detained for questioning at Store Street Garda Station, a Dr. Ahmad was called for the purposes of examining him so as to medically determine his fitness for interview. Having prescribed methadone, 30 mls, and Diazepam, 10 mls, the doctor declared him fit, and at 17:00 departed the station. Some time shortly thereafter the first interview commenced and continued until 20:10 hrs.
60. Within a short period thereafter, at 20:30 hrs, the appellant was seen by a second doctor, Dr. Ramakrishanan, commonly referred to as “Dr. Jag”, who, because of the presenting symptoms, declared him unfit for further or continuing interview. In his opinion, Mr. O’Shea was showing signs of heroin withdrawal, and 15 mls of Dalmane was prescribed. The evidence of these doctors, regarding both their examinations and their respective reports, formed part of the book of evidence served on the accused.
61. On day 2 of the trial, the DPP proposed to interpose Dr. Jag, who had returned from his native India purely for the purposes of giving evidence in this case. Being aware of what both doctors proposed to say in respect of their involvement with the accused whilst in custody, counsel on his behalf sought to enter a voir dire so that he could “explore the different findings and thus the different conclusions which the doctors had come to”. In his opinion, this was a matter of high importance, for if he could establish, contrary to Dr. Ahmad’s examination, that the accused was not fit at the relevant time, then the first interview should not have been conducted and obviously, if that was the case, the memorandum of the resulting session should not have been admitted.
62. The trial judge refused this request and pointed out to counsel that she was interested, at that juncture of the trial, only with the issue of the chain of custody and nothing else. The question of admissibility and fitness to be interviewed could, she said, be dealt with at a later date. In this regard, the concerns which defence counsel had also raised about the continuing availability of Dr. Jag, which in his view was essential, were not a matter for the court. It was for the DPP to arrange her witnesses in such a way as was necessary so as to facilitate the running of the trial. If that proved impossible, then a further application could be made at the appropriate time. In summary, the judge’s ruling was “Right. Keep to custody. Don’t want to know any other information. Mr. Cooney, I don’t want to know any other information and if you start asking questions I’ll stop it. Okay? And about availability of doctors next week, I am not concerned about that as yet. Alright? If you don’t have your witness available for the prosecution you can make another application, Mr. Cooney. Okay?” On that basis the trial thus proceeded.
63. The first aspect of the submission made on this ground of appeal was classified as a challenge to the “admissibility” of Dr. Ahmad’s evidence; this challenge, if successful, could have had serious consequences for the inculpatory content of the memorandum of interview which arose out of this first interview session. The second issue related to the evidence given by Dr. Jag, which, it is said, contained matters prejudicial to the accused.
64. It is difficult to avoid the conclusion that what counsel was in reality seeking to do in the voir dire was to have a “dry run” in testing how beneficial his cross-examination before the jury might be in establishing inconsistencies between the evidence of both doctors and thus, in that way, in challenging Dr. Ahmad’s finding in relation to his client’s fitness. At the level of principle, and despite how the submission was put, it does not appear that the evidence of either doctor was sought to be excluded on any of the exclusionary grounds upon which evidence can be ruled inadmissible. Rather, the challenge could properly be described as one focused on cogency, weight and credibility. Such a challenge, without more, is entirely within the domain of the jury and consequently, even if the judge had made a definitive ruling rejecting the voir dire request in its entirety, she would have been justified in so doing.
65. However, that is not in fact what she did. Quite evidently it is clear from the transcript that she was deferring, rather than refusing, the application as made. Having indicated that the issue could be returned to, if the circumstances so warranted, the fact of the matter is that no further request was made for the holding of a voir dire, nor were any further submissions made challenging, at the level of admissibility, the medical evidence so offered.
66. On the prejudice issue, Dr. Jag was asked two questions in cross-examination, the first of which was to confirm that on his arrival at Store Street, he had been made aware that Mr. O’Shea had been given medication at 17:00 hrs. The second was phrased as follows:
(Question) “Okay. And as a result of your consultation with him at that stage you formed the opinion that he wasn’t fit to be interviewed further.
(Answer) Not that, I knew that he was on methadone 30 ml and Valium and Dalmane from doctor -- from Keenan’s team in Pearse Street Clinic, so I knew that he is getting regular medication, so because he complained these symptoms, then I formed the opinion that he is unfit, not by previous medications at all, because it’s only a low dose of D5 and methadone 30 mls, sir. He’s getting 80 ml from Pearse Street. Sorry to -
(Question) That’s okay, thank you very much, Doctor.”
67. Immediately on this evidence having being given, counsel on behalf of the accused submitted that the same was highly prejudicial to his client, as the jury would reasonably conclude that Mr. O’Shea was addicted to heroin, was on methadone and was attending regularly at Pearse Street clinic. As such, this may have had a negative influence on the jury’s decision on his guilt or innocence on the charge against him.
68. The trial judge rejected this submission and took the view that knowledge of an accused being a drug user or being addicted to heroin could not of itself be prejudicial in the sense suggested. In any event, she emphasised that this was a visual identity case and that she would give an appropriate direction to the jury in that regard. In her view, whether Mr. O’Shea was on heroin or other drugs was not relevant, nor was his particular condition at the material time. In addition, she indicated her intention to direct the jury to put all such matters out of their mind when deliberating on the case. In her subsequent charge on this point, the learned judge said the following:
“Now, as regards leaving all prejudices aside, evidence was given by one of the medical witnesses that Mr. O’Shea had received methadone, alright? Please put that out of your mind. That has nothing to do with the case. You have to be satisfied, beyond reasonable doubt, that Mr. O’Shea was guilty of the robbery at the Pro Cathedral on the 30th March, 2010.”
69. In the Court’s view such a direction was entirely appropriate and fully addressed the concerns which counsel had arising out of the evidence in question. This ground of appeal is therefore not sustainable.
Issue No. 3: The Memoranda of Interview
70. During the course of Mr. O’Shea’s detention, he was interviewed, by way of question and answer, on several occasions; this resulted in the creation of five memoranda of interview. At the trial, prosecuting counsel proposed to read to the jury the content of each such interview. Objection was taken to this proposed course of action on the basis that on a number of occasions the accused responded to certain questions by stating “[n]o comment” or with words to that effect. On other occasions, when no response was forthcoming, the interrogating gardaí had inserted “refuses to answer” or “pretends to be asleep”. It was claimed that if the jury were informed of such matters, they may draw inferences adverse to the applicant and may question why he appeared to avoid or refuse to engage with the interview process; this could possibly lead them into believing that he had something to hide. As those parts of the memoranda which defence counsel sought to have excluded contained no probative material, it was argued that the appellant’s constitutional right to silence would be breached unless those passages were removed or deleted.
71. The trial judge then conducted an extensive examination of all of the memoranda, and on each individual question and answer being identified, she considered what both defence and prosecution counsel had to say in respect thereof. As a result, she agreed that all inserted comments made by the interrogating gardaí should be deleted, but refused to expunge from the memoranda every “[n]o comment” answer, or words to that effect. In some of these situations she agreed that the reference should be deleted, but on other occasions she felt that, in the interest of giving context to the question being asked, the answer, although phrased as “[n]o comment”, should remain. Finally, she distinguished, very clearly, the case of DPP v. Finnerty [1999] 4 I.R. 364 (“Finnerty”), which had been opened to her, and concluded that the course which she had adopted was perfectly consistent with the preservation of the appellant’s constitutional right to silence.
72. There is no doubt whatsoever but that an accused person has a constitutional right to silence. This right, which also exists at common law, finds expression in a number of ways, including the right of an accused person not to give evidence at his trial, if he so wishes, and also in the obligation on An Garda Síochána, in certain circumstances, to issue a caution. Neither of those situations exists in this case. In fact, at common law the latter example could not arise as the gardaí had no power to detain a suspect for the purposes of questioning; rather, their only right was to arrest such an individual, bring him to an appropriate court and there charge him with the offence in question. That situation, however, changed with the passing of the Criminal Justice Act 1984 (“the 1984 Act”), which for the first time conferred a right on the gardaí to detain, in a Garda Station, a person for the purposes of questioning in respect of criminal activity. That power, which was a significant incursion into the rights of the individual as those previously existed, did not however carry with it any abridgment of the right to silence, save in respect of the matters covered by ss. 18 and 19 of the Act, which are not relevant to this case. Accordingly, this right to silence, constitutionally based, remained untouched by the 1984 Act.
73. Such right, save for statutory exceptions (for example, the said ss. 18 and 19 of the 1984 Act, and the subsequently inserted s. 19A, as inserted by s. 30 of the Criminal Justice Act 2007), must be given full effect to where it arises. Evidently, if adverse inferences could be drawn from its exercise, its effectiveness and utility would be seriously eroded; hence, the prohibition on such inferences. In the vindication of such a right it is therefore a requirement on each trial court to ensure that circumstances are not created or allowed to exist which would undermine or imperil its true value.
74. A recent, authoritative decision in this regard is Finnerty. In that case the accused had been detained under the provisions of the 1984 Act and interviewed by the gardaí over several hours. At no point did he make any statement of any description. In his subsequent trial, on two counts of rape, it was put to the complainant that her evidential account of what occurred was false in every material respect, and that the accused would give evidence to that effect. The prosecution then sought permission from the trial judge, which was granted, to cross-examine the accused on the basis that during his detention, he had not offered the version of the events which he now proposed to give before the jury; in fact, they wished to point out that he had made no response whatsoever to the questions asked. This failure, it was submitted, was relevant to the credibility of the accused. Notwithstanding the rejection of his appeal against that ruling, the Court of Criminal Appeal granted a certificate under s. 29 of the Courts of Justice Act 1924, as amended, with the unanimous judgment of the Supreme Court subsequently being delivered by Keane J.
75. Having outlined the history of the right to silence, and having set out the various circumstances in which that right may be engaged, Keane J., in allowing the appeal and in ordering a retrial, set out at p. 381 of the report three principles which governed an issue of this nature. The learned judge said:
“The principles applicable in a case such as the present, where a defendant while detained under the provisions of the 1984 Act has refused to answer questions put to him, can be stated as follows:-
(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.
(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.
(3) In the case of a trial before a jury, the trial judge on his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.”
These principles have subsequently been applied in several cases, including The People (DPP) v. McDermott (Unreported, Court of Criminal Appeal, 17th June, 2002).
76. Two further comments should be noted. Firstly, in The People (D.P.P.) v. McGowan [2003] 4 I.R. 349, the Court of Criminal Appeal emphasised the importance of implementing these principles, which, it said:
“... were very simple to observe and [the Court] would be greatly perturbed if it were thought that it could be departed from at the expense of a rebuke or a comment by this court, but that it would not be taken seriously beyond that.”
Secondly, the rather unusual circumstances giving rise to the Court’s decision in the Finnerty case should not be overlooked. Those circumstances were referred to by the Court of Criminal Appeal (Keane C.J., Finnegan P. and Kinlen J.) in The People (D.P.P.) v. Brazil (Unreported, 22nd March, 2002) where the appellant sought to have his conviction overturned on the basis, inter alia, that his right to silence had been breached. In that case the accused had been interviewed on several occasions with the questions and answers being recorded in writing, though not signed by him. On objection being taken at his trial, suitable redaction was made so as to delete all references to the accused’s failure or refusal to reply to some questions. Notwithstanding this, however, one of the garda witnesses, without being asked, volunteered, as part of his evidence, that the accused had made no reply to a number of questions. On that basis, relying on Finnerty, the conviction was sought to be quashed. Keane C.J. in giving the Court’s judgment said:
“that [(referring to the witness’ evidence)] would not of itself be sufficient to render any verdict subsequently arrived at unsafe or unsatisfactory. It has to be remembered that in [Finnerty] the applicant had maintained his right to silence throughout the garda interview and nonetheless the prosecution in that case sought to adduce evidence and indeed to cross-examine the defendant when he came to give evidence as to why he had given no account of the matter to the gardaí. That is the context in which that ruling of the Supreme Court has to be seen”.
It is therefore necessary to remain conscious of the precise circumstances of Finnerty when applying the principles as outlined.
77. This Court is quite satisfied that the circumstances of this case are clearly distinguishable from those existing in Finnerty, in that the interview process of Mr. O’Shea did produce evidence which could be described as having some probative value, as distinct from that in Finnerty when no statement of any such description was made. What was important for the trial judge to have achieved, which she did by way of a careful analysis and assessment, was no more than what was necessary to contextualise the probative evidence left to the jury. It is clear that where interviews occur and a suspect answers “[n]o comment” to all of the questions put to him, the direct content of such interviews should be inadmissible. That, however, was not the situation in the instant case, where material of value emerged from the questioning. Therefore, unlike Finnerty, and despite the broad applicability of the general principles therein established, this is not a case where, almost at the level of principle, the trial judge should have prohibited all memoranda from going to the jury. What was required was an exercise in adjudication, carefully conducted so that material only of a probative nature would be allowed in and then only when satisfied that by so doing the constitutional rights of the accused were not in peril. The Court is satisfied that the trial judge’s exercise to this end was both adequate and satisfactory.
78. Accordingly, leave to appeal will be refused.
