THE SUPREME COURT [Supreme Court Appeal No. 57/2015]
[Court of Criminal Appeal No. 12/2010]
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Ms. Justice Iseult O’Malley delivered the 12th day of December 2017
1. This appeal, brought on foot of a certificate granted by the Court of Criminal Appeal, concerns the appellant’s conviction in 2009 for the murder of Declan Gavin on the 25th August, 2001.
2. There are two central issues in the appeal. The first is the applicability in the appellant’s case of the procedure provided for in s. 16 of the Criminal Justice Act 2006 (hereafter “s. 16” or “the section”). That provision permits, in certain defined circumstances, the use of out-of-court statements as evidence of the truth of the contents thereof. The appellant contends that the procedure was not lawfully available in his trial. His argument is that the Act, properly interpreted, did not apply to cases such as his where the relevant statements had been taken, the charge preferred and the return for trial ordered before the statute came into force. The primary submission is that the newly-introduced procedure affected his fair trial rights to such an extent that it could not be regarded simply as a change in procedural or evidential rules and therefore should, in accordance with the principles of statutory interpretation, have been presumed not to apply retrospectively.
3. The question certified by the Court of Appeal on this issue is whether s. 16 applies to statements of evidence made prior to the coming into force of the Act of 2006.
4. In an alternative submission on the section, the appellant argues that, having regard to the history of his case and in particular to what the courts had already found to be culpable prosecutorial delay, the trial judge should not have permitted the prosecution to utilise the new procedure. Although the bulk of the evidence in the case was gathered in 2001, the appellant was first charged with the offence in 2003. However he did not stand trial until 2009. This lapse in time, the reasons for which are considered below, was severely criticised by this Court in judicial review proceedings, although the trial was permitted to proceed. By the time the matter came on for trial the Oireachtas had enacted the Act of 2006. The appellant says that in that situation it was unfair to allow the prosecution in effect to benefit from its own blameworthy delay.
5. On foot of a motion brought before this Court pursuant to the rules applicable to appeals from the Court of Criminal Appeal, the appellant was given leave to argue two further grounds of appeal. Both relate to the summing up to the jury by the learned trial judge. At the trial, counsel for the accused objected to a particular passage, at the end of what was otherwise described by counsel as a “model” charge, and applied unsuccessfully for a discharge of the jury. The appellant contends that in the particular passage the judge failed to maintain an impartial and fair role; that as a result his charge was unbalanced and unfair and effectively amounted to a direction to the jury to convict; and that the judge erred in refusing an application to discharge the jury.
The procedural history of the case
6. Declan Gavin was stabbed to death in the early hours of the 25th August, 2001, in Crumlin Shopping Centre. The appellant was arrested about a week later on suspicion of murder. While he was in custody he was interviewed and finger-printed. He was again arrested and questioned on the 22nd November, 2001. Subsequent events are described in detail in the judgments in this Court in Rattigan v The Director of Public Prosecutions  4 I.R. 639. In those judicial review proceedings the appellant sought to prohibit his trial on grounds of, inter alia, delay. Although he was unsuccessful a clear view was taken of the delay by the High Court and Supreme Court judges.
7. Most of the proposed evidence in the case was gathered by the investigating gardaí in the latter part of 2001. The investigation file was sent to the Director of Public Prosecutions in March, 2002. The Director did not give directions for the arrest and charge of the appellant until September, 2003. After his arrest the appellant was remanded in custody pending service of a book of evidence in the District Court. However, after seven appearances in that Court the book was still not ready and on the 18th December, 2003, the District Judge struck the matter out. Almost sixteen months then elapsed before the appellant was again arrested and charged, in April, 2005. He then instituted judicial review proceedings seeking to prohibit the trial on grounds of, inter alia, delay. His application was refused in the High Court in a judgment delivered on the 30th June, 2006, by O’Higgins J. (see Rattigan v Director of Public Prosecutions  IEHC 239). The appeal came on for hearing in this Court on two dates in October, 2007 and the Court gave judgment in May, 2008.
8. The dates relating to the court hearings may be considered relevant because s. 16 of the Criminal Justice Act 2006 was brought into force on the 1st August, 2006. In the circumstances, it clearly played no role in the decision of the High Court and does not appear to have been raised in the appeal therefrom.
9. The prosecutorial delay in the case was described in the High Court as “culpable and unjustified”. Geoghegan J., who gave the leading judgment in this Court, agreed. Hardiman J. described the delay as “unforgivable and unexplained”. Nonetheless, it must be stressed that the Court refused to grant prohibition. Issues raised by the appellant as to the non-availability of potential defence witnesses, the introduction of new prosecution evidence, the failure to videotape interviews with certain prosecution witnesses and adverse pre-trial publicity were not considered, on the facts of the case, to demonstrate a real risk of an unfair trial. Geoghegan J. stressed that it was the obligation of a trial judge to give appropriate directions according to the circumstances of the case.
10. The first trial of the appellant, in early 2009, ended in a disagreement. The trial with which the Court is now concerned commenced in November, 2009 and concluded with the conviction of the appellant on the 17th December, 2009.
The case against the appellant
11. The central facts of the murder are summarised in paragraph 4 of the judgment of the Court of Criminal Appeal. No issue is taken with that summary and accordingly I reproduce it here:
12. It should be said here that the “blood-like substance”referred to was assumed, for the purposes of the earlier judicial review proceedings, to be blood but in the event was never proved to be such.
“In the early morning of Saturday the 25th of August, there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan Micra car. The car was described variously as grey, gold, or ‘that imported beige colour’. It was recognised as a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant described by the witnesses as the ‘knife man’. The door of the Abrakebabra was closed by the security guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described as ‘a blood like substance’, was found on the window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also identified as that of Brian Rattigan.”
13. It is clear from this summary that, for the fingerprint evidence to be relevant to the identification of the appellant as the murderer, it was necessary for the prosecution to establish that the assailant pursued Mr. Gavin to the door of the Abrakebabra premises. That was the issue that gave rise to the admission of two witness statements under the provisions of s. 16.
14. For the purposes of the second issue, it is necessary to bear certain other matters in mind. Evidence was adduced that a Nissan Micra described as being gold in colour was found on fire some five hours after the murder at the back of the Cookstown Industrial Estate, and that it had belonged to a man named Shane Maloney with whom the appellant was friendly. One witness said that she saw Shane Maloney’s Micra outside the Abrakebabra some time earlier that evening, before the murder.
15. There was some evidence that the word “rat” was shouted immediately before the attack on Mr. Gavin; that the man with the knife may have said to Mr. Gavin something along the lines of “Deco, you rat” or “remember me, you rat”; and that while the appellant was being questioned in garda custody he had said “I don’t know where you’re getting your information from; it must be from the rats”. Counsel for the prosecution suggested in her closing that the jury were entitled to attach significance to his use of the same word as had been heard during the assault.
16. Undoubtedly, however, the most significant evidence related to the fingerprints at the Abrakebabra premises. There was evidence that the pane of glass upon which one of the marks was found had been installed a few days earlier, replacing a broken pane, and that the windows were cleaned on Mondays, Wednesdays and Saturdays. Gardaí who had interviewed the appellant said in evidence that he had been asked when he was last at the Abrakebabra, and he had replied that he had not been there for about four months. In the trial, counsel for the defence attempted to cast doubt upon the reliability of the interview notes. The interviews had taken place some eight years before the trial and had not been videotaped. However, it is clear that if the jury accepted that this answer had been given, and was a lie, the combination of that fact with the presence of the marks on the recently replaced and/or cleaned pane of glass would constitute very strong evidence against the appellant.
Section 16 of the Criminal Justice Act 2006
17. The section provides in full as follows:
(1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination –
(a) refuses to give evidence,
(b) denies making the statement, or
(c) gives evidence which is materially inconsistent with it.
(2) The statement may be so admitted if –
(a) the witness confirms, or it is proved, that he or she made it,
(b) the court is satisfied –
(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(iii) that it is reliable,
(ii) that it was made voluntarily, and
and shall also have regard to –
(c) either –
(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or belief, or
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth.
(3) In deciding whether the statement is reliable the court shall have regard to–
(a) whether it was given on oath or affirmation or was videorecorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability,
The application of s. 16 in the trial
18. It is clear from the transcript that this trial was marked, as the earlier inconclusive trial appears to have been, by a reluctance on the part of many civilian witnesses to give evidence. On each occasion a number of warrants were issued by the trial judge for the arrest of absent witnesses and some were held in contempt. However, the s. 16 procedure was invoked in respect of three witnesses only, and was allowed in respect of two.
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement, or
(ii) where the witness denies making the statement, any evidence given in relation to the denial.
(4) The statement shall not be admitted in evidence under this section if the court is of opinion–
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or
(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.
(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.
19. The first of the witnesses in question, a Mr. Byrne, was called on the third day of the trial. He testified that he had been present at the scene on the night in question, and that he saw Mr. Gavin, whom he knew well. He said that he had been involved in a bit of an argument with his own companions. Asked if he saw anything happen to Mr. Gavin, he said that Declan Gavin was stabbed and everyone ran. He said that he did not see who stabbed him. He saw a man in a balaclava who was also running. He did not know if the man had anything in his hand and could not say where the man ran to. He did not see him again.
20. In the statement made by Mr. Byrne in 2001, he had said that he saw the man in a balaclava carrying a knife and running after Mr. Gavin. When Mr. Gavin ran into the Abrakebabra the bouncer had closed the door behind him. The man with the knife got as far as the door and, the witness thought, kicked it, before running away to the Nissan Micra.
21. The initial response of counsel for the prosecution was to apply to have Mr. Byrne treated as hostile. When examined in accordance with the procedure set out in People (Attorney General) v. Taylor  I.R 97, the witness said that he could not remember the details of the assault on Mr. Gavin. The prosecution then sought to utilise s. 16.
22. Counsel for the defence objected, arguing, firstly, that the section was not retrospective and secondly, that if the trial judge determined that it could be utilised retrospectively, nonetheless the application should be refused in this particular case because of the culpable and unjustified prosecutorial delay. He also argued that, having regard to the particular evidence, use of the procedure was not “necessary” and was therefore not permissible under the terms of the section. As a separate argument counsel submitted that he would have no “real” right of cross-examination given the attitude of the witness. It was submitted that the mere physical presence of the witness in court was not sufficient to vindicate the fair trial rights of the accused under the Constitution, and if the Court held that it was, he intended to challenge the constitutionality of the statute.
23. The trial judge gave an immediate outline ruling in which he accepted that the s. 16 procedure was available. (A more detailed ruling was given on the following day, but it is not suggested that any difference in principle emerged.) He considered that, whether one took a literal or a purposive approach, the section applied to any person sent forward for trial for an arrestable offence. The relevant point in time was the date upon which a witness failed to give evidence as contemplated by the section. Further, the statute was dealing with an evidential rule and the general presumption against retrospectivity of legislation did not apply to procedural or evidential matters.
24. In relation to the delay, the trial judge accepted that there had been culpable prosecutorial delay. However, the trial had been allowed to proceed and, that being so, it had to proceed on the basis that both sides were bound by the rules of evidence as they applied at the time of the trial. He acknowledged the possibility that delay might, in a particular case, give rise to an issue relevant to the assessment of the interests of justice under s.16(4)(a). Therefore, while finding that there was no basis for a blanket exclusion, he left it open to the defence to argue the question of unfairness in the specific circumstances.
25. Subsequently, having heard evidence and submissions directed to the particular statement, the trial judge found that the statutory preconditions were satisfied and admitted it into evidence.
26. Although the statement was being admitted, Mr. Byrne continued with his evidence. He appears from the transcript to have had no difficulty answering questions about what he did in the aftermath of the stabbing, such as his efforts to call an ambulance and to assist Mr. Gavin inside the Abrakebabra. He was cross-examined by the defence, and answered questions about what he had been doing that evening, how much alcohol and cocaine he had taken, who he was with and so on. He again stated that he could not remember details about the man with the balaclava. The trial judge did not accede to a defence application to reconsider his ruling in the light of the answers as to the consumption of alcohol and cocaine.
27. The second witness relevant to this issue, a Mr. Farrell, was called some days later. Like Mr. Byrne, Mr. Farrell did not refuse to give evidence or to answer questions and in fact was led through some of his evidence without difficulty. He said that he had seen a Nissan Micra. He then saw and heard people fighting and started to walk away. Then he saw someone run over to the car and jump in. It left at speed. He said that he could not describe this person other than that he was wearing a balaclava, and that he could not remember the incident in any detail.
28. According to Mr. Farrell’s statement, made to gardaí in August, 2001, he had seen the man with the knife from the time he got out of the car to the time he returned to it, and had witnessed the stabbing. Like Mr. Byrne, he had put the assailant in proximity to the Abrakebabra door.
29. Again, the trial judge heard evidence and submissions and ruled that the preconditions for the s. 16 procedure were satisfied.
30. It must be pointed out that in respect of a third witness the trial judge ruled against the prosecution in a similar application, on the basis that he did not consider it to be necessary and thus the procedure was excluded by the terms of the section.
The Court of Criminal Appeal Ruling on s.16
31. The appellant relied, as he does in this Court, on the authorities dealing with the presumption that a statute does not act retrospectively unless the contrary intention is apparent. This presumption has always been considered to arise in the case of legislation effecting changes in substantive law but not to statutes that alter procedural or evidential rules. The appellant, however, based his argument on the proposition that there was no such clear distinction to be drawn, and that it was a matter of degree. It was submitted that the more serious the right affected, the more reluctant the court should be to categorise the legislation as “merely procedural or evidential”.
32. The Court of Criminal Appeal did not consider this to be a useful approach, saying:
33. The Court also queried the nature of the right contended by the appellant to be affected by the section and said that it had not been sufficiently particularised. It assumed that the right in question was, implicitly, the right to a trial on a criminal charge in due course of law, and went on to say that a consequence of the appellant’s argument would be that it would be difficult to categorise any change in the criminal law as procedural or evidential. There was no support in either the authorities or the practice of legislative drafting for such an approach. The Court considered that, on its face, the statute under consideration appeared to be procedural or evidential.
“Apart from the inherent vagueness and lack of predictability of such a test, there is no basis for allowing the nature of a change to be determined by reference to its impact. Any change in the law, however apparently trivial, can be critical in a particular case.”
34. Looking specifically at the section, the Court said that it did, in fact, only operate prospectively.
35. The Court of Criminal Appeal considered that any possible alternative – such as that the section applied only to offences committed after the section came into force, or to statements made after that date, or where the return for trial took place after that date – would lead to “implausible, illogical and haphazard results”. The specific submission made in this case – that the section should apply only to statements made after it came into force – would not make sense if retrospectivity was the concern, since statements made immediately after the date on which the legislation became operative would by definition relate to offences committed before that date.
“It only applies when at a trial, which necessarily must occur after the coming into force of the Act, a witness refuses to give evidence or denies making a statement or gives evidence which is materially inconsistent with the statement previously given. Until such an event occurs the Act is not triggered, or put in a different way, the triggering event can only occur at some time in the future, and after the coming into force of the Act. Second, the language of the section appears clear and unambiguous. On its face, and without recourse to any presumptions of interpretation, it appears to apply to any such event which occurs after the coming into force of the Act.”
36. In this appeal the appellant maintains the position that the section should not be applied to statements made before the legislation was in force. It is argued that what was in issue was the right to cross-examination. The section “profoundly affects the fundamental rights of an accused person to cross-examine witnesses and test the evidence which is relied upon to establish guilt.” It is further suggested that the section deprives an accused person of that “fundamental right”. Reference is made to the judgment of Finlay C.J. in Mapp v Gilhooley  2 I.R. 253, where the necessity for viva voce evidence given on oath or affirmation was described as a fundamental principle of the common law. The submission is that the section is therefore either properly characterised as a substantive change in that law, that should be presumed not to operate retrospectively unless clearly stated by the legislature to have such effect, or else properly seen as a procedural change that affects a right so profoundly that the court should apply the same presumption.
37. The appellant had, as already noted, argued as an alternative that if the section was applicable the trial judge should, nonetheless, have refused to operate it in the interests of fairness. It was submitted that permitting the prosecution to utilise the section against him was unfair because it had only come into being in the period during which the prosecution was guilty of culpable delay. The prosecution had therefore benefitted from the consequences of its wrongdoing.
38. The Court of Criminal Appeal considered this to be a flawed argument. The appellant could complain of unfairness and prejudice only if the invocation of the section was in itself unfair, since the application of the law could not normally be considered prejudicial. Here, the prejudice asserted amounted to:
39. In the appeal, the appellant complains that the Court of Criminal Appeal failed to deal with the issue raised. It is asserted that in refusing an order of prohibition in the judicial review proceedings, this Court had assumed that the trial judge would give appropriate directions so as to minimise the prejudice to the appellant arising from the delay. Instead, the prosecution has been permitted, as a result of its delay, to avail of an exception to the hearsay rule.
“a contention that the accused was no longer able to benefit from the lamentable fact that a witness might refuse to give evidence in accordance with a formal statement of evidence provided by him or her, should that occur.”
Discussion – the s.16 issue
40. I agree with the analysis of the Court of Criminal Appeal on both aspects of the issue raised in respect of the section. In the first instance, it is in my view manifestly within the category of “procedural or evidential change”. All of the authorities are agreed that the presumption against retrospectivity has no application to that category.
41. Even more to the point, it is a change that relates to trial procedure and to the application of the rules of evidence in particular circumstances that can only arise in the course of a trial, and was therefore capable of applying only to trials that took place after its enactment. As the Court of Criminal Appeal pointed out, the attachment of a particular status to witness statements made before that date would have no basis in either legal theory or practicality. The constitutionally-guaranteed fair trial rights of an accused person – and the right to cross-examine is a fair trial right – arise in the context of a trial. It is of course possible that pre-trial investigative actions can affect the fairness of a trial process, in which case a trial judge will be obliged to vindicate the rights of the accused by whatever appropriate steps are available. However, this is irrelevant to the question of retrospectivity in this case. Either the section is an unlawful attack on the fair trial rights of any person in whose trial it is invoked, or it is not. If it is unlawful, it is not legitimated by restricting it to trials where the investigation began after it came into force.
42. The appellant did not acquire any particular right in respect of any of the witness statements at the time when they were made. What he acquired was the right, once charges were brought against him, to a fair trial. That would be so whether the trial judge was dealing with witnesses who had made their statements years prior to the trial or witnesses who came forward at a later stage. In so far as the right to cross-examine is concerned, it is clear that counsel did cross-examine the witnesses and they did not, in their oral evidence, implicate the appellant in any particular way. The difference brought about by the section was that the jury were put in possession of the additional material from the written statements that placed the attacker in proximity to Abrakebabra.
43. I also agree with the analysis in the Court of Criminal Appeal judgment of the fairness issue raised in the context of prosecutorial delay. Further, I would add that the remedy proposed by the appellant – that the trial judge should have refused to operate the section – is not related to the identified culpability on the part of the prosecution in any factual or logical way. While prosecutorial delay is always to be deprecated and will on occasion have very real consequences for a prosecution, it would be absurd to establish a principle that a trial judge could compensate for delay by refusing to operate validly enacted legislation that is otherwise applicable to the case.
44. The legislation confers a power on a trial judge to refuse a prosecution application in the interests of justice. However a power of that sort is not to be used for the purpose of punishing a failure by the prosecution to carry out some part of its function with proper efficiency. In circumstances where this Court had found that there was no basis for saying that the delay meant that the appellant could not have a fair trial, the trial judge was not obliged and arguably not entitled to, in effect, throw some extra weight onto the scales in favour of the defence. A decision to permit or refuse the invocation of the section has to relate to the proposed evidence in the context of the case, to the statutory preconditions and to the impact that it may have on the fairness of the trial.
45. However I think it worth noting here that the question of delay might well, in some circumstances, give good grounds for a refusal on the part of the trial judge. For example, in a case involving civilian witnesses it is always likely that oral evidence will differ to some degree from the statements of proposed evidence contained in the Book of Evidence. Because of the process by which they are taken, written statements may have a structure, coherence and attention to sequential detail that may be absent when the witness attempts to give a narrative in oral evidence. Any significant lapse of time between the making of the statement and the trial is capable of exacerbating this situation and of impairing the accuracy of a witness’s memory in any event. This is a normal feature of human life. In my view trial judges should be careful not to permit the prosecution, in cases where it has been responsible for delay, to “improve” its evidence by invoking the section in circumstances not within the intent of the legislature.
The judge’s charge
46. The summing-up was almost entirely uncontroversial. The trial judge gave proper directions as to the applicable legal principles, including the following passage as to the treatment of circumstantial evidence:
47. The trial judge then summarised the evidence without comment. When the trial adjourned over a lunch-break, such requisitions as were made by counsel were dealt with and nothing now turns upon the matters raised at that stage. The judge then summarised counsels’ closing addresses. Counsel for the defence does not take issue with the presentation of his case by the judge at that point, and it may be helpful to refer to it in some detail.
“This is a circumstantial evidence case and that obviously raises the question, what is circumstantial evidence? Circumstantial evidence is evidence from which you the jury may infer existence of a fact in issue. It’s evidence which can be assessed, can be made subject to analysis and from which rational conclusions can be drawn in relation to a particular fact in issue or in dispute. Sometimes it’s the case that a prosecution is in a position to ask the jury to consider direct evidence. For example, if a crime is being captured on high quality CCTV footage. However, it is often the case that direct evidence of a crime is not available. The prosecution will then rely upon circumstantial evidence to prove its case or to support its case. Sometimes circumstantial evidence may constitute the entirety of a prosecution case and this is such a case. Or it may sometimes be that it makes only a part, whether large or small, of the prosecution case.
A case involving circumstantial evidence is one where the prosecution is relying upon evidence of various circumstances relating to the crime and to the defendant, which they say, when taken together, will lead to the sure conclusion that it was the defendant who committed the crime. When it comes to considering circumstantial evidence, what requires to be considered is what is its cumulative effect? One may have a situation where a combination of circumstances is established, no one of which would support a conviction, or no one of which would do more than perhaps raise some suspicion, but when they are taken together may lead to a conclusion of guilt and, indeed, may lead to a conclusion of guilt with as much certainty as human affairs are capable of. An example that is often given, and it is one that has been referred to by counsel on both sides, and example that is often given, a metaphor that is often used, is of the rope with several cords. One strand of the rope alone might be quite insufficient to sustain a person’s weight, but three or four or five or six or more stranded together may be of quite adequate strength and even the heaviest individual can trust their weight to it. And another example, and this is the one that I often think of where a prosecution case depends on various elements of circumstantial evidence, is of those little sticks that Golly Bars and Choc Ices come on, or certainly used to come on. One of those sticks alone can be snapped without the slightest difficulty whatsoever. However, if you take a bundle of those sticks and if you assemble them together, then the bundle acquires a strength which the individual sticks never had. And that bundle may indeed be completely unbreakable. So in respect of any individual Choc Ice stick or in respect of any individual piece of circumstantial evidence, the first matter which has to be considered is whether the stick goes into the bundle. In other words, when examined individually is the individual piece of evidence reliable and of value. And then the second task is to consider on the basis of the sticks that are put into the bundle how strong and unbreakable that bundle is or, in other words, when the individual pieces of the evidence that have been identified as being of value and of being reliable, are considered together, what conclusion is to be drawn.
… Insofar as a prosecution based on circumstantial evidence may and indeed will depend on a number of different elements of circumstantial evidence, the question of coincidence arises and we all know that unusual coincidences do occur from time to time and it’s only in a situation where a jury comes to the view that to treat the various matters that are actually established as pure coincidence is an affront or an insult to common sense that it would be proper to convict. And obviously, in considering the extent of the coincidence that appears to be established, considering the significance of whatever coincidence appears to be established, the jury will at all stages keep to the forefront of their mind that the accused enjoys a presumption of innocence.”
48. The trial judge reminded the jury that the defence argued that the evidence presented to them was largely worthless. It had been said that there was no evidence linking the appellant to the Nissan Micra observed at the scene, and that there was no relevance in the fact that a burned-out Micra was subsequently found. Counsel had been scornful of the evidence that someone at the scene used the word “rats” and that the appellant had used the same word as a term of abuse in the presence of gardaí – it was no surprise that someone of the appellant’s character would use the word.
49. Counsel had said that, in the absence of videotapes of the interviews with the appellant, and given the established evidence of his lack of cooperation with the gardaí, the jury should not attach significance to the disputed allegation that he had said that he had not been at the location for four months.
50. In relation to the fingerprint evidence, counsel had urged the jury not to jump to the conclusion that the substance in which the mark was found was the blood of Mr. Gavin. It was possible to be mistaken about such matters and, indeed, the investigating gardaí had made a mistake when they thought they had found blood on a car examined in the course of the investigation. Counsel had also been critical of the quality of the examination at Abrakebabra carried out by the scenes of crime team, saying that the jury had been “short changed” and was being asked to do the prosecution’s work for them.
51. The final part of the charge dealing expressly with counsel’s speech reads as follows:
52. Again, this is undoubtedly a fair summary of the case made by counsel.
“He says that there are only two verdicts open, either guilty or not guilty, that there is no halfway house, and he says that the evidence that would justify you returning a verdict of guilty is just not there. He says that such a verdict, such a conclusion, could be arrived at only as a result of speculation and by attempting to fill the gaps that have been left.”
53. Having concluded this part of the charge, the trial judge pithily summed up the case by saying:
54. Again, this was uncontroversial. However it was immediately followed by the passage complained of in this appeal:
“So, Mr Foreman, ladies and gentlemen, you have heard all the evidence, you have heard the arguments advanced by counsel on both sides, and, over the weeks that this trial has gone on, quite an amount of evidence has been offered. On the prosecution view, that evidence that is offered is more than sufficient to justify a verdict of guilty. On the defence view, too many questions are left unanswered and too many gaps remain unfilled.”
55. The jury was then given the issue paper and commenced its deliberations. Counsel for the defence requisitioned the judge at this point. He started his submission by saying that:
“Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man was someone else, then there’s no doubt that Mr. Rattigan has been most unfortunate. He was unfortunate, in the first instance if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that it should be located four inches away from a point where a swab was taken, which was established to match that – the DNA profile matched the blood of Mr. Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved in the incident happened to use the same term of abuse – “rats” – as a term of abuse that he used when interviewed by the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that there will be a particular section of the public for whom it is probably commonplace. Then, unlucky that he would compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what he’s supposed to have said was in fact said, and that the prints on the window and the door are, in fact, his.
So, unlucky. However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to your intelligence.”
56. He went on:
“until five minutes ago I would have had to describe your charge as a model of fairness and balance in terms of how you presented the legal principles, summarised the evidence and indeed summarised the closing address of both counsel.”
57. The trial judge responded that he had said nothing of the sort, but had said that the jury could convict only if they were of the view that to regard the items listed as coincidence would be an affront or insult to their intelligence. Counsel applied to have the jury discharged. The judge refused, stating that a judge was entitled to comment and that, insofar as he had commented, he had also set out in detail the respective contentions of the parties.
“Having done that, your lordship then made what I can only term a second rousing and powerful speech on behalf of the prosecution by enumerating, in the manner in which you did, what can only be your view, because it was taken out of step from everything else that was done as to the unluckiness of the accused on a number of different issues, I think which perhaps numbered six or seven, which wasn’t counterbalanced in any way, except by saying, but of course, people can be unlucky and you can have unlucky circumstances and you concluded it then by suggesting that, effectively, for somebody to be so unlucky to be not guilty would be in effect an affront or an insult to your intelligence.”
58. The passage, to my eyes, leaps out at the reader of the transcript and can only have been even more striking when heard by the jury. The question is, was it within the judge’s entitlement to make such comments?
59. On appeal, it was argued on behalf of the appellant that this had been a powerful statement of the prosecution case, delivered at the end of the charge with rhetorical flourish, that in effect unbalanced the charge. Further, it was submitted that the passage first misstated the defence made in the case, imputing a reliance upon coincidence that had not been put forward, and then discredited that imputed defence.
60. The Court of Criminal Appeal did not accept this analysis. It considered that in reality, the defence put up – that there were “too many unanswered questions” – could not be separated from the question whether there were alternative explanations consistent with innocence. If the jury accepted the uncontested evidence of the appellant’s fingerprint in a red substance four inches away from the position from which the swab of Mr. Gavin’s blood was taken, and also accepted that the appellant had lied about not having been at the scene for a period of months, then the question of the sufficiency of that evidence had to be linked to the question whether there was any other explanation for it. In the absence of any positive explanation, the only logical possibility remaining was coincidence. The trial judge had not, therefore, mischaracterised the defence.
61. In discussing the broader issue of the permissible range of comment in a summing up, the judgment deals with the function of a trial judge in giving guidance to the jury as to how to deal with evidence. It is said:
62. The process required the trial judge to gather and synthesise the evidence and he had done so.
“The function of a trial judge in this regard is to attempt to present to the jury the issue which it has to decide in a clear and comprehensible way. In a simple case this may involve no more than identifying what has been said on each side but in more complex cases it will necessarily involve a degree of analysis of the evidence if only to focus on the central issues, and to present what is to be considered by the jury, in an ordered, comprehensible and intelligible way.”
63. Counsel for the prosecution has relied upon the following passage from the judgment delivered by Reading L.C.J. in R. v. O’Donnell (1917) 12 Cr. App. R. 219 at p.221:
“When that exercise was done certain observations might readily be made about the logical conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral presentation which will be heard only once by the jury.”
64. This authority (which, it may be noted, was not referred to in the judgment of the Court of Criminal Appeal) is now one hundred years old and, having regard to very many authorities in the intervening century, should be treated extremely cautiously. It is, quite simply, no longer the case that a trial judge can tell a jury that they should disbelieve particular evidence, or make any other comment he wishes provided it falls short of actually directing or seeming to direct the jury what to do.
“[I]t is sufficient to say, as this Court has said on many occasions, that a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. A judge obviously is not justified in directing a jury, or using in the course of his summing up such language as leads them to think that he is directing them, that they must find the facts in the way which he indicates. But he may express a view that the facts ought to be dealt with in a particular way, or ought not to be accepted by the jury at all. He is entitled to tell the jury that the prisoner’s story is a remarkable one, or that it differs from accounts which he has given of the same matter on other occasions. No doubt the judge here did express himself strongly on the case, but he left the issues of fact to the jury for their decision, and therefore this point also fails.”
65. Looking at a selection of judgments of the Irish and English appellate courts over the decades one can see that there has been a progressive clarification of the role of the jury as the finder of fact and of the obligation of a trial judge to respect that role. Thus, for example, in R. v. Canny (1945) 30 Cr. App. R. 143 Humphreys J. said:
66. In the 1960s the Irish Court of Criminal Appeal made the following observation on a judge’s comments, in the case of People (A.G.) v Oglesby  I.R. 162:
“There are many decisions of this Court, and, indeed, many decisions before the existence of this Court, to the effect that in England a man is entitled to a fair trial by jury on any offence which is indictable. It does not matter how absurd the defence is, or how unlikely it is that any sensible person would pay the least attention to it. A prisoner is entitled to make his defence to the jury, and it is for the jury and not for the Judge to decide on its weight.”
67. In Mears v. R.  1 W.L.R. 818, a decision of the Privy Council, Lord Lane said:
“A judge, who states the explanation given by the accused, is entitled to comment adversely on it but we do not think that he is entitled to state it in a way which is calculated to discredit it.”
68. Lord Lane went on:
“The Court of Appeal took the view that the trial judge was not putting forward an unfair or unbalanced picture of the facts as he saw them. In rejecting the defendant’s submission that the comments of the judge were unfairly weighted against him, the court asked themselves whether the comments amounted to a usurpation of the jury’s function. In the view of their Lordships it is difficult to see how a judge can usurp the jury’s function short of withdrawing in terms an issue from the jury’s consideration. In other words this was to use a test which by present day standards is too favourable to the prosecution. Comments which fall short of usurpation may nonetheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge’s views or wishes. As Lloyd L.J. observed in Reg v. Gilbey (unreported) 26 January 1990:
‘A judge … is not entitled to comment in such a way as to make the summing up as a whole unbalanced…It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.’
69. Mears was applied by the Court of Appeal in R. v. Wood  1 Cr. App. R. 207, where it was noted that the degree of adverse comment allowed at that time was substantially less than it had been fifty years earlier.
“Their Lordships realise that the judge’s task in this type of trial is never an easy one. He must of course remain impartial, but at the same time the evidence may point strongly to the guilt of the defendant; the judge may often feel that he has to supplement deficiencies in the performance of the prosecution or the defence, in order to maintain a proper balance between the two sides in the adversarial proceedings. It is all too easy for a court thereafter to criticise a judge who may have fallen into error for this reason. However, if the system is trial by jury then the decision must be that of the jury and not of the judge using the jury as something akin to a vehicle for his own views. Whether that is what has happened in any particular case is not likely to be an easy decision.”
70. In R. v. Bentley (Deceased)  1 Cr. App. R. 21 the English Court of Appeal had the task of reviewing the historic conviction of Derek Bentley for the murder of PC Miles in 1952. One of the issues upon which the Court determined that the conviction was unsafe concerned the comments made by the trial judge on the defence, which were described as “highly rhetorical and strongly-worded.”
71. The Court expressed surprise that this aspect had not been raised in Bentley’s appeal against conviction, suggesting that it would not have been thought acceptable “even by the standards prevailing at the time.”
“The language used was not that of a judge but of an advocate (and it contrasted strongly with the appropriately restrained language of prosecuting counsel). Such a direction by such a judge must in our view have driven the jury to conclude that they had little choice but to convict; at the lowest, it may have done so.”
72. Counsel for the appellant has drawn the attention of this Court to an ex tempore ruling of the Court of Criminal Appeal in DPP v Slattery (delivered on the 4th February 2004) in which Hardiman J., speaking for the Court, described the issue in the following terms:
73. Although it is clear that reminders to the jury that they are free to disregard a judge’s comments will not necessarily save an otherwise unbalanced and unfair charge, failure to provide such a reminder was described as “unusual and unwise” by the Court of Criminal Appeal in the case of DPP v McGinley  IECCA 7.
“In this case the learned trial judge’s deep and strongly felt disbelief of what the defendant said in evidence comes over clearly from the transcript, but the credibility of this evidence was entirely a matter for the jury and not for the judge. A judge can certainly comment in a fashion which may be helpful to the jury in making up its mind but should not present them with his or her own resolution of the facts. We think the matter is perhaps well put in Oglesby’s case, that the learned trial judge is entitled to comment on the evidence but not to disparage or discredit it. He is certainly not entitled to comment on it in such a fashion as suggests that if the jury took a different view to that of the learned trial judge they would be in grave conflict with him. It is true that the learned trial judge here more than once indicated to the jury that they were entitled to take a different view from his, and it is important that that should be done. But even if it is done, that fact does not legitimate every sort of comment, and in particular, does not legitimate gravely disparaging comments on the defence evidence of the sort made here.”
74. Having regard to the transcript, I am compelled to disagree with the view of the Court of Criminal Appeal as to what the learned trial judge intended in the passage under consideration.
75. In the first place, I do not believe that it was open to that Court to describe what happened as an analysis by the trial judge of alternative explanations consistent with innocence. That is not what the judge thought he was engaged in – he made it quite clear to counsel that he considered that he had been exercising his entitlement to comment. The question is whether, in so doing, he overstepped the boundary.
76. The defence case as put by counsel was carefully limited, as no doubt he considered necessary in the circumstances. It was confined to the argument that certain matters were not proven to the required standard (as in the attempt to cast doubt on the reliability of the garda evidence that the appellant said he had not been at the scene for some months); or not capable of bearing much weight (as in a suggestion that it might be expected that the appellant would lie to gardaí, or a reminder that there were 19 other fingerprints found on the door and window that were not identified) or else were irrelevant as not being sufficiently connected to the appellant (as with the evidence relating to Shane Maloney’s car, or the red substance on the window). Overall, the argument made was that the jury should either not believe particular items of evidence beyond reasonable doubt, or should not accord them sufficient weight to convict. At no stage was there an effort to put forward an alternative explanation of the facts, if they were accepted as such. The issue was whether or not the prosecution had proved sufficient facts by sufficiently strong evidence. Having regard to the burden and standard of proof applicable in a criminal trial that was a perfectly legitimate line to take. There is no obligation on the defence to argue that there might be an innocent explanation for proven facts, where the case being made is that the facts were not proven.
77. The Court of Criminal Appeal may well have been right in saying that, if the facts were established to the satisfaction of the jury, the only other innocent explanation left was coincidence. However that does not mean that it was an explanation that had to be considered by the jury as potentially affording a defence. It was, in my view, implicit in the approach of the defence that if the jury accepted the evidence beyond reasonable doubt they would be entitled to convict. Still less does it mean that the possibility of coincidence had to be addressed as if it had in fact been argued on behalf of the appellant. It might well be that the trial judge was entitled to spell out explicitly what the logical consequences would be if the evidence was accepted. There could probably be no complaint if he had said something to the effect that if, having regard to the standard of proof and the presumption, the jury believed the prosecution evidence, they were entitled to bear in mind that it was not being suggested to them that the facts were capable of explanation by reference to the possibility of coincidence.
78. Instead, although I have no doubt that this was not his intention, the trial judge engaged in what in my view could be seen as a piece of advocacy in favour of the prosecution. It undermines the defence case by reference to an argument not made, and by subjecting that argument to sustained sarcasm. The repeated suggestion that the accused would have to be “unlucky” (eight times) or “unfortunate” (twice) in respect of each of the items of evidence mentioned, and the suggestion that the defence case depended on “unusual” coincidence cannot, it seems to me, be considered as anything other than an invitation to the jury to reject the defence case out of hand. In context, the final sentence quoted seems to me to amount to an indication that the defence case was, indeed, an affront to the intelligence of the jurors and it is perhaps not surprising that counsel understood it as such.
79. It may be noted here that the trial judge in the case of The People (Director of Public Prosecutions) v Nevin  3 I.R. 321, a case in which the evidence of the accused’s guilt of murder was largely circumstantial, used what might seem to be similar phrasing when she said to the jury:
80. The Court of Criminal Appeal in that case considered this to be an entirely appropriate direction in the circumstances of the case. However it is clear that the suggestion in relation to coincidence, and the “affront to common sense”, was made only in relation to the possible acceptance by the jury of the relevant evidence and was accompanied by a reminder of the presumption of innocence and the burden and standard of proof.
“I want you to be sure that when you apply your minds to all the facts, all the facts which you have accepted as true, that you can come to the conclusion that to treat the matter as pure coincidence is an affront to common sense. So, you have got to work towards being satisfied that not to find her guilty would be an affront to commonsense. But keep in mind all the time that there is in this the presumption of innocence, which is only displaced when you are satisfied beyond reasonable doubt that she is guilty.”
81. The issue here is not whether or not the judge’s analysis was sustainable on the evidence – it may well have been. The point is that it is for the jury to find the facts, subject to direction on legal matters from the judge. It is true that after a trial of any length some summary of the evidence will generally be necessary. That is done by the judge, since, after all, the speeches of counsel can be expected to cherry-pick as they think appropriate. The very process of summarising the evidence will involve an editorial decision by the judge as to what is potentially relevant and what is not. In this respect I consider the description of the judge’s function by the Court of Criminal Appeal to be entirely correct. It is necessary for the summary of both the facts and the issues to be clearly communicated.
82. Juries look to judges for impartial guidance that they do not necessarily expect to obtain from counsel. They tend to assume (as should be the case) that the judge will be neutral where counsel are obliged to be partisan, and will not lead them astray. There may well also be an assumption that the judge is more experienced and knowledgeable than counsel about criminal investigations and trials. As the Court of Criminal Appeal said in DPP v. McDonagh  IECCA 127:
83. For these reasons, the expression of what appears to be personal opinion from a judge can be far more powerful than that of counsel.
“…[i]t is self-evident that in view of the overall responsibility which a judge is called upon to discharge during a trial, a jury of lay individuals may be apt to confer on any view expressed by the judge, an importance, even a status, which may undermine the independence of their collective view, which is the hallmark of the jury system. If such was to occur, the risk of prejudice is almost inevitable. Therefore, even when a judge engages with the facts, he or she must emphasise, with particular care, that the views expressed may be entirely ignored and that, “fact”, is purely and exclusively a matter for the jury.”
84. It is accepted that a judge may comment on the evidence in this context in order to assist the jury. Where the prosecution case is strong, there can be no objection when a fair presentation shows it to be strong. A judge is not obliged to give an artificial impression that the two sides have equally persuasive cases where they do not. However current practice would suggest that comment going beyond that is done to a very limited extent. For example, the judge might where appropriate comment that a particular issue does not truly arise from the evidence, or might point to what in his or her view is the crucial question to answer and therefore guide the jury towards the appropriate issue to concentrate on.
85. In this case, it seems to me that the impact of the passage was all the more forceful because it came at the very end of what defence counsel accepted was a “model” charge. After dealing with the law and summarising the evidence, the trial judge summarised the case being made by both sides in a perfectly fair and accurate way. To then launch into a devastating critique of the defence case, without any reference to any weakness there may have been on the prosecution side and without a reminder that the jury was free to disregard what was being said, is likely to have conveyed to the jury that this was the judge’s own strong opinion and that he was urging it upon them. To say that this could have the effect of undermining the consideration given by the jury to the defence case would be something of an understatement.
86. I do not find it to be of assistance to be told that the jury did not convict until the following day, or that the experience of criminal law practitioners includes cases where juries were believed to have reacted against a perception that trial judges were pushing them to one verdict or another. It may well be true that some jurors, having been told that they are the judges of fact, dislike any apparent pressure to yield that status. It is however also possible that some will feel inclined to follow what appears to be a strong indication by the judge as to the decision they should make. For some considerable period of time it has been the practice of most trial judges to guard against seeming to give such an indication, and in my view this should continue to be the practice.
87. To paraphrase the words of the Court of Appeal in R. v. Bentley, I am of the opinion that the passage from the summing up under consideration was capable of driving some or all of the members of the jury to believe that they had little choice but to convict, and that there is a real possibility that it did so.
88. Two issues have been argued in this appeal. The first is whether the trial judge was correct in permitting the use of s. 16 of the Criminal Justice Act 2006, which allowed the prosecution to put into evidence two statements made by witnesses who did not repeat the content of those statements on oath. I have noted the fact that this was a case in which there was a noticeable reluctance to give evidence on the part of some civilian witnesses. The appellant has not claimed that the conditions set out in the Act for this procedure were not fulfilled, but has submitted that it could not be applied to witness statements taken before the Act came into force. This aspect of the case depended upon the argument that the change to the rules of evidence brought about by the section should be seen as substantive, rather than as procedural or evidential. The appellant has also submitted that in any event it was unfair to permit the section to be used in his particular case, because the prosecution had been guilty of blameworthy delay in bringing the case to trial.
89. I have not accepted either of these arguments. On the first aspect, I consider that the section does not breach the principle against retrospectivity since it brought about a change in the rules of evidence that could only apply to trials taking place after the Act came into force. The appellant has not succeeded in demonstrating that the use of the section caused any breach of his fair trial rights. On the second aspect, I have not accepted that, in circumstances where this Court had previously found that the delay on the part of the prosecution was not such as to prevent a fair trial, the trial judge should nonetheless have refused to operate the section because of that delay.
90. The other issue in the case relates to certain comments made by the trial judge in charging the jury, and has been more difficult to resolve. This was a case where, from any point of view, the summary given by the trial judge of the legal principles and the facts of the case was flawless. However the appellant has complained that in his final remarks to the jury before sending them out to deliberate, the trial judge unbalanced his charge. It is said that he delivered a statement of the prosecution case and in doing so discredited a defence of coincidence imputed by him to the appellant, but not actually relied upon by the appellant in the trial.
91. I have looked at this issue in the context of the evidence in the trial, the case made to the jury by counsel for both sides and the relevant line of authorities in this jurisdiction and in the courts of the United Kingdom.
92. It is an important part of the role of the trial judge in any case to explain to the jury the legal principles and, in cases of any significant length or complexity, to point out the evidence relevant to the jury’s role as finder of fact. It is also necessary that the jury should understand the case being made by both sides. Because of the vital part played by juries in our criminal justice system, it is essential that the judge, in giving the jury such instructions as the case requires, should fully respect the independence of their role. He or she should neither seek, nor seem to seek, to influence the jury’s verdict by communicating, or seeming to communicate, personal views that appear to point to a particular verdict.
93. I have come to the conclusion that the comments of the trial judge in this case went further than were desirable, that there is a real possibility that they may have been seen as reflecting his personal opinions and that they may well have influenced the members of the jury in their view of the defence case.
94. In the circumstances I would allow the appeal.