THE COURT OF APPEAL
Record No. 315/2016
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of the Court delivered on the 14th day of December 2017 by Mr. Justice Mahon
1. The appellant was found guilty by a jury at Cork Circuit Criminal Court on the 17th November 2016, following a four day trial, of one count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the 23rd November 2016, he was sentenced to seven years imprisonment with the final eighteen months suspended for a period of two years on certain conditions. The appellant has appealed his conviction.
2. On the 24th May 2016, Mr. Viron Kaja was walking on Spring Lane, Blackpool in Cork and was approached by two men. One man grabbed him from behind and severely injured one of his eyes temporarily reducing sight in that eye. He was assaulted and robbed of a silver cigarette case and a €50 note. He reported the incident to the gardaí before accompanying gardaí in a patrol car in search of his attackers. He identified two men outside a coffee shop at Thomas Davis Street, being the appellant and Thomas O’Sullivan. He was certain about Thomas O’Sullivan but less so about the appellant. This identification took place approximately thirty minutes after the incident had occurred. The stolen silver cigarette box was found on the person of Thomas O’Sullivan and a €50 note was found on the appellant.
3. The defence case was that the appellant did not have any involvement in the robbery of, or confrontation with, Mr. Kaja. Thomas O’Sullivan admitted robbing Mr. Kaja but insisted that the appellant, his brother, was not with him at the time. The appellant said he was with his wife, Kathy Nugent, at the time, and was separate from Thomas O’Sullivan. Ms. Nugent confirmed same in her evidence.
Grounds of appeal
4. The grounds of appeal are as follows:-
The identification evidence
5. An application was made to the Court to exclude Mr. Kaja’s evidence of identification of the appellant as being one of the men who had attacked and robbed him a short time earlier. In the course of his trip in the patrol car, Mr. Kaja was driven to Thomas David Street. Comments overheard by him indicated that the gardaí were looking for particular individuals, and reference was made by one of them to a car owned by one of these which was seen parked in the area. Close to a coffee shop called ‘The Coffee Pot’ Mr. Kaja pointed at two men who were outside the premises in the company of one female and two gardaí. He identified the appellant and Thomas O’Sullivan as the individuals who had assaulted him some minutes earlier. He identified the appellant as the assailant who had held him from behind. Gda. Aidan Greene gave evidence that Mr. Kaja had identified his two attackers as the appellant and Thomas O’Sullivan. He also gave evidence of taking a €50 note and a silver tobacco box from the two men and that Mr. Kaja had later identified the €50 note as being like the €50 note that had been stolen, and the silver tobacco case as the one that had been taken from him. The €50 note was found on the person of the appellant and the tobacco case was found on Thomas O’Sullivan. Gda. Michelle Conway gave broadly similar evidence.
(i) The learned trial judge erred in fact and / or in law in failing to exclude the identification evidence on the application of the Defence, the said identification evidence being of an informal nature and wholly prejudicial to the appellant in the manner the informal identification was conducted.
(ii) The learned trial judge erred in fact and / or in law in failing to grant an application for a direction of no case to answer at the close of the prosecuting case, on the grounds that the identification evidence was not sufficiently reliable to ground a conviction against the appellant. Accordingly there would be a real risk of a miscarriage of justice leaving the matter to the jury.
(iii) The learned trial judge erred in fact and / or in law in stating to the jury during the course of the judge’s charge that the appellant was known to Det. Gda. O’Donoghue which was contrary to the evidence of Det. Gda. O'Donoghue which was of so prejudicial a nature that it could not be corrected by way of recharging the jury.
(iv) That the learned trial judge erred in law in failing to discharge the jury on the application of the defence on the grounds that having stated incorrectly that the evidence of Det. Gda. O’Donoghue was that he knew the appellant, that a jury could not be re-charged on that issue. The said misstatement of the facts was of so prejudicial a nature to the appellant as to require the discharge of the jury.
(v) In all the circumstances the decision of the jury was perverse and against the weight of the evidence.
6. An application was made on the first day of the trial on behalf of the appellant to exclude the identification evidence on the basis of its weakness and because its introduction would be highly prejudicial to the appellant. The basis of the application was the fact that the appellant was identified as one of his attackers by Mr. Kaja while standing in close proximity to members of the gardaí and that the presence of the gardaí may have influenced Mr. Kaja’s decision to identify the appellant. Counsel for the respondent submitted that this was not a case of an identification parade but was in fact, a case of hot pursuit. The learned trial judge was urged to take account of the proximity both in time and place between the identification and the attack on Mr. Kaja.
7. The learned trial judge ruled as follows:-
8. The trial then proceeded and the jury heard evidence from Mr. Kaja and the gardaí in relation to the identification of the appellant and his brother.
“…having carefully considered the matter, given the proximity and time to the events and the proximity of the location, I believe that this is a case which can be described as one of hot pursuit. I do not accept that the evidence given by the gardaí is more prejudicial than probative in the circumstances of these particular events and this matter is quintessential a matter for the jury. I refuse your application.”
9. On the second day of the trial, following the conclusion of the prosecution evidence, counsel for the appellant made an application for a direction. He did so on the basis of what he described as the inherent weakness of the prosecution case, and in particular, the evidence of the identification of his client. He submitted that the prosecution evidence on this issue, taken at its highest, was such that a jury, properly directed, could not properly convict upon it. He relied, inter alia, on the case of DPP v. Mekonnen  1 I.R. 210. That case was concerned with the problematical aspects of identification evidence and the risk of mistaking identity.
10. The decision in Mekonnen is best summarised by reference to its head note, which stated that the Court held:-
11. Counsel for the appellant emphasised that Mr. Kaja had given evidence to the effect that he did not get a good look at the second man who assaulted him, yet he identified the appellant as that person. He referred to the fact that the injury caused to Mr. Kaja’s eye in the attack left him with reduced vision for some considerable time thereafter, including when the identification process took place. While he accepted that a one hundred per cent certainty in relation to identification was not required to enable such evidence be considered by a jury, the net effect of Mr. Kaja’s evidence to the jury had been that he was far from certain as to the identity of the appellant. He suggested that his client had been identified because he was in his brother’s company outside the coffee shop and both were flanked by gardaí, and there was an element of an assumption of the appellant’s involvement because of his then close proximity to Thomas O’Sullivan who he was certain had been involved.
“(i) That the preferred method of obtaining identification evidence was by way of a formal identification parade. However, recourse might be had to other appropriate informal identification processes. In such circumstances, the court would require an explanation as to why a formal identification parade was not undertaken. Where no explanation was offered, or where that offered could not be objectively justified, it would only be in quite exceptional circumstances that visual identification evidence, obtained otherwise than by a formal parade, would be permitted to go to a jury.
(ii) That while it was desirable that the procedure for informal parades would resemble as closely as possible the process of a formal parade, it was not a necessity that it do so as this would be influenced by the practicality of the prevailing circumstances.
(iii) That visual identification evidence must be treated with serious caution and a trial judge was obliged to inform the jury of this view. The jury should have been told that the accused was entitled to the benefit of the doubt and that when two views on any part of the case were possible on the evidence, they should adopt that which was favourable to the accused unless the State established the other beyond reasonable doubt even where the favourable inference was relatively unlikely.”
12. It was contended on behalf of the prosecution that the identification evidence should be permitted to go to the jury, the jury having been appropriately charged in relation to it. He emphasised that the identification had taken place in the immediate aftermath of a robbery. It was not a situation where the gardaí could have been expected to create a formal identification parade or to have otherwise avoided or altered the circumstances in which Mr. Kaja identified the men.
13. The learned trial judge ruled in favour of the prosecution. He said, inter alia,:
14. It is only in exceptional cases that a trial judge should withdraw a case from the jury. This was not such a case. There was credible identification evidence, even if the identification of the appellant was less than certain. The identification of the appellant had been made by Mr. Kaja in the immediate aftermath of the robbery. The identification of the appellant may have fallen short of being absolute or certain, but it was sufficient to allow the jury make a final decision in relation to it. Furthermore, the learned trial judge had the opportunity which this Court has not had of hearing and seeing first hand the relevant witnesses on that issue and, in particular, the evidence of Mr. Kaja. He was best placed to make a decision in relation to it.
“The law does not require 100% certainty in recognition on identification evidence and it is quintessentially a matter for the jury to make a decision as to the weakness or strength of the evidence upon which the prosecution relies. The appropriate warning in respect of the dangers of identification evidence such as is present in this case can properly safeguard the protections afforded to the accused by the Constitution. I therefore refuse the application for a direction to acquit in this matter.”
15. The Court is satisfied that the decisions made by the learned trial judge were indeed correct and it therefore dismisses the first and second grounds of appeal.
16. A further issue arises which calls into question whether there was indeed any entitlement on the part of counsel for the appellant to seek a direction at the close of the prosecution case. On the first day of the trial, in the course of a robust cross examination of Mr. Kaja by counsel for the appellant, reference was made to evidence which, it was said, would be called on behalf of the defence (p. 54 of the transcript). The question asked of Mr. Kaja was:
17. Mr. Kaja responded:-
“Q. And Mr. Thomas O’Sullivan will also give evidence in this matter and he will say that Mr. Trevor O’Sullivan, my client, was not with him at the time this incident occurred. And in fact you are not 100% sure who the second person was. You are presuming because Mr. Trevor O’Sullivan was standing beside him and that was the person?”
18. The effect of this question was to introduce and refer to evidence that was stated and presumably intended would be called on behalf of the defence at a later stage of the trial and to ask Mr. Kaja, a prosecution witness, to answer the question in that context. The effect of introducing or referring to defence evidence in this manner, albeit at that point unsworn evidence, while quite legitimate to do so in circumstances where it is proposed to later call that evidence, may be to forego the right to seek a direction at the close of the prosecution case and prior to the proposed evidence being led.
“I thought it was him because they looked the same. I thought he was the same guy that had held me for a few moments before that.”
19. In the circumstances it is unnecessary for the Court to make any determination in relation to this particular issue other than making the foregoing observation.
The charge to the jury
20. Prior to any garda witness being called at the trial, and following concern expressed by counsel for the appellant that Det. Gda. O’Donoghue might convey to the jury in the course of his evidence that he had previously known the appellant and his brother, it was agreed that no such information would be disclosed because of its potentially prejudicial effect. In the course of the trial nothing of that nature was in face disclosed to the jury by Det. Gda. O’Donoghue or other garda witnesses. Det. Gda. O’Donoghue stated to the jury that he “now” knew the two men thereby carefully concealing any prior knowledge of them on his part.
21. The learned trial judge erroneously advised the jury in the course of his charge that Det. Gda. O'Donoghue had stated in his evidence that “..he observed two males who he knew to be Thomas O’Sullivan and Trevor O’Sullivan”, (emphasis added). In fact, as the transcript confirms, Det. Gda. O'Donoghue had in fact stated in evidence that he “now knew” the two men to be the appellant and Thomas O’Sullivan. It was argued on behalf of the appellant that this error, and which is accepted by the prosecution to have been such, was prejudicial to the appellant, and was so to the extent that it could not be corrected by any re-charge by the learned trial judge.
22. When the issue was raised by way of requisition for the appellant, the learned trial judge insisted that he had indeed correctly said to the jury that Det. Gda. O'Donoghue had given evidence that “he now knew” the persons identified by Mr. Kaja to be the appellant and Thomas O’Sullivan. Ms. McCarthy then, and in the absence of a transcript, accepted the position as stated by the learned trial judge. The matter was not again re-addressed to the jury.
23. In the course of their deliberations, the jury requested that they be permitted to hear the DAR recording of Det. Gda. O’Donoghue’s evidence. This request was facilitated thus providing the jury with the opportunity to again hear that evidence.
24. Counsel for the prosecution has submitted that notwithstanding the learned trial judge’s error in what he had stated to the jury, his charge was nevertheless sufficiently robust and clear that no prejudice arose as a consequence thereof. He identified in particular that the learned trial judge had directed the jury in the following terms:-
“Now the evidence in this case is what is offered under oath in the witness box or affirmed on that alone. It is not what I say, it is not what counsel says it is. It is what was said in the witness box, by the witnesses and together with the exhibits which you will have.”
25. Such directions to the jury, he submitted, were themselves sufficient to neutralize the erroneous review of the evidence in question with the consequence that the jury would likely recall the actual words spoken by Det. Gda. O’Donoghue’s and dismiss or ignore as mistaken the learned trial judge’s recollection of what had been said.
“You must decide solely on the evidence given and the manner in which it was given by each of the witnesses. As I have said, my views on the facts are entirely irrelevant unless you agree with them. And if you don't agree with them, you're entitled to disregard them. What you are not entitled to do also, ladies and gentlemen, is to allow your view, or consideration of the evidence to be in any way influenced by prejudice or sympathy.
26. It was further submitted that the jury had had the benefit of hearing the recording of Det. Gda. O’Donoghue’s evidence in the course of which they would have heard precisely what he had said, namely, that he now knew the appellant and his brother, and that they would then have become aware that the information given to them by the learned trial judge in the course of his charge on this particular issue was mistaken, if not already aware of that fact.
27. It was also submitted on behalf of the prosecution that the error is not of such a nature as would have justified the discharge of the jury. He relied on the decision in DPP v. Tobin  3 I.R. 469 where the test to be applied for the discharge of a jury is one of reasonable apprehension of bias on the part of the jury. He emphasised the fact that the trial had been a relatively short trial and that the memory of the jury of what was actually said by Det. Gda. O’Donoghue would still be relatively fresh.
28. In relation to the fact that the jury requested to listen to the recording of Det. Gda. O’Donoghue’s evidence, and did so, what is unknown, however, is the precise reason why the jury sought to re-hear that evidence or indeed whether they had any concern, doubt or confusion about what that witness had said in relation to his knowledge of the appellant and his brother. It was submitted by the applicant that if that particular issue had not particularly troubled them it may well be that they paid no attention to that portion of Det. Gda. O’Donoghue’s evidence and further, even if they did, there remains the possibility that the jury may have accepted what was said by the learned trial judge as more accurately representing Det. Gda. O’Donoghue’s actual knowledge of the men. There may have been an apprehension on the part of the jury to doubt or second guess the accuracy of something stated to them by a judge.
29. The prejudicial effect of the learned trial judge’s erroneous reference to this aspect of Det. Gda. O’Donoghue’s evidence is obvious, as it suggested, or at least it was capable of conveying, that the appellant and his brother were known to the gardaí prior to this robbery which in turn might suggest that they were previously involved in criminality.
30. Mistakes can and do occur in the course of the review of evidence by a trial judge in the course of his charge to a jury. In this instance the mistake could very easily have been corrected. The learned trial judge could have re-addressed the jury on the basis that while he did not believe he had made the error as suggested by counsel for the appellant, in case he had done so, he would now state the position correctly. Not doing so rendered an otherwise impeccable charge to the jury flawed in an important respect, with the consequence that the verdict of the jury has to be considered unsafe and is required to be quashed.
31. The Court will therefore allow this ground of appeal and will hear submissions on the issue of a re-trial.