The Gazette 1993

GAZETTE

SEPTEMBER 1993

Recent Irish Cases

Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University.

The following case summaries have been reprinted from the

Irish Law

Times and Solicitors Journal

w i th the kind permission of the publishers.

The People(D.P.P.) v Diemling Court of

Criminal Appeal 4 May 1992

CRIMINAL LAW - EVIDENCE - ACCOMPLICE - ACCES-

SORY AFTER FACT - WARNING TO )URY WHETHER

REQUIRED-SUGGESTION AS TO DEFENDANT'S MILI-

TARY BACKGROUND - WHETHER JURY SHOULD BE

DISCHARGED

The defendant was charged with the false

imprisonment and murder of one Evans.

Evidence was given for the prosecution by

the defendant's daughter that she was in

Ireland on holiday in 1988, that she met the

defendant and that he brought her to the

place where he was then holding Evans. She

stated that she treated Evans for the effects of

beatings inflicted on him. After a number of

days, she became aware that Evans was

dead and stated that his body was burned

beside the place where he had been held.

She did not report the matter to the Gardai

at first, but later came forward. The defend-

ant denied that these events had taken place

or that Evans was dead. In the course of

evidence, the suggestion was made that the

defendant had been a member of the SAS or

similar military unit, but this was withdrawn

by the prosecution and the trial judge di-

rected the jury to disregard this suggestion.

The defendant was found guilty on both

counts. He was sentenced to life imprison-

ment for the murder and to 7 years imprison-

ment for the false imprisonment. On appeal

HELD by the Court of Criminal Appeal

(Hederman, Carroll and Flood JJ) allowing

the appeal on the murder verdict and direct-

ing a re - trial: (1) since by her own account,

the defendant's daughter was fixed with

knowledge of Evans' death, and was aware

that he had been beaten, she was therefore

aware that the death amounted to homi-

cide; and her subsequent activities in assist-

ing concealment of evidence constituted

her an accessory after the fact; and since an

accessory can have a sufficient degree of

complicity to be an accomplice, this was a

matter which the trial judge should have left

to the jury to determine, and he should have

also warned them on the dangers of convict-

ing on the evidence of an accomplice; and

thus, the trial judge had erred in withdraw-

ing this matter from the jury, and a re - trial

would be ordered on this ground. Dicta in

The People v Carney

[1955] IR 324 fol-

lowed; (2) there was no evidence to support

the submission that the defendant's daugh-

ter was an accomplice in the unlawful de-

tention of Evans; (3) since the suggestion

that the defendant had been in the SAS had

been immediately withdrawn by the pros-

ecution, the trial judge had not erred in

refusing to discharge the jury and his warn-

ing to them was sufficient to prevent any

lack of fair procedures, and accordingly the

appeal against the conviction for false im-

prisonment would be dismissed. [Note: an

appeal against severity of sentence on the

false imprisonment conviction was with-

drawn.]

The People(D.P.P.) v Ryan Court of Crimi-

nal Appeal 30 November 1992

CRIMINAL LAW- EVIDENCE - DISCRETION TO ADMIT

- FINGERPRINTS - WHETHER IN BREACH OF STATU-

TORY REGULATIONS - NO OBJECTION TAKEN AT

TRIAL - WHETHER 'TRAWLING' OF TRANSCRIPT PER-

MISSIBLE - POINTS OF COMPARISON BETWEEN

PRINTS ATSCENE AND WITNESS'S PRINTS-WHETHER

PARTICULAR NUMBER OF COMPARISON POINTS

REQUIRED - PROCEDURE - WHETHER CROSS - EX-

AMINATION OF DEFENCE WITNESS IN ACCORD-

ANCE WITH FAIR PROCEDURES - Regulations as to the

Measuring and Photography of Prisoners 1955, Art.4

The defendant had been charged with at-

tempting to cause grevious bodily harm to a

neighbour of his. It was alleged during the

trial by the neighbour and other prosecution

witnesses that the defendant attacked the

neighbour with a sword. The defendant's

son, aged 15 years, appearing as a defence

witness, gave evidence that he had'never

seen the sword in question in the family

home. On cross - examination by the pros-

ecution, he denied ever touching the sword,

and that he could not explain how his

fingerprints had been found on it. The pros-

ecution introduced a fingerprint expert who

testified that he found 8 points of compari-

son between the son's fingerprints and the

prints found on the sword. Defence counsel

objected to the admission of this evidence

on the ground that the practice was that

there be 12 points of comparison. The trial

judge admitted the fingerprint evidence. On

appeal, in addition to challenging the ad-

missibility of the fingerprint evidence con-

cerning his son, the defendant argued that

the evidence concerning his own finger-

prints had been inadmissible as it was ob-

tained in breach of the 1955 Regulations, in

that there was no evidence adduced that the

prison officer who had taken the prints had

been authorised to do so by a Garda Super-

intendent. HELD by the Court of Criminal

Appeal (Blayney, Lynch and Lavan JJ) dis-

missing the appeal: (1) while the practice of

requiring 12 points of comparison was a

good one where it concerned an accused, in

this instance it was a witness and not the

accused who was involved, and the fact that

there were only 8 points of comparison was

a matter going to the weight of the cross -

examination rather than the admissibility of

the evidence; (2) the fact that the prosecu-

tion put a line of cross - examination to the

defendant's son without forewarning the

defence of this line of questioning did not

create unfairness to the defendant; and while

each case must be judged on its own facts,

the instant case was quite different from a

situation where the prosecution cross - ex-

amines the accused in a manner not indi-

cated in the book of evidence.

The People v

Coll

(1980) 2 Frewen 36 distinguished; (3)

in relation to the defendant's fingerprints,

the trial judge had a discretion as to whether

to introduce the evidence even where there

was a breach of the 1955 Regulations, par-

ticularly having regard to the fact that no

objection was taken at the trial to the admis-

sion of this evidence.

The People vMcGrath

(1965) 99 ILTR 59 applied.

Per curiam:

the

Court disapproved of trawling through a

trial transcript for errors not thought worthy

of mention during the trial itself.

The People

vCoughland

968) 1 Frewen 325 referred to.

The People(D.P.P.) v Barr (No.2) Court of

Criminal Appeal 21 July 1992

CRIMINAL LAW - EVIDENCE - SEXUAL ASSAULTS -

FORM OF INDICTMENT - MULTIPLE ACTS - WHETHER

EACH TO BE INDIVIDUALLY SPECIFIED - DNA PRO-

FILING (GENETIC FINGERPRINTING)-WHETHER TRIAL

SHOULD BE USED AS TESTING GROUND FOR SUCH

EVIDENCE - PROSECUTION NOT SEEKING TO RELY

ON DNA EVIDENCE-PRE)UDICETO)URY-WHETHER

SUFFICIENT WARNING GIVEN - CORROBORATION -

WARNING - NOT MANDATORY - Criminal Justice

(Administration) Act 1924 - Criminal Law (Rape) Act

1981, s.10 - Criminal Law (Rape) (Amendment) Act

1990, s.7

The defendant was charged with indecent

assault and buggery, the indictment stating

that this was contrary to common law as

provided for in s.10 of the 1981 Act, the

particulars alleging that on a specified date

he indecently assaulted a named female. It

was accepted that the form of the indictment

conformed as nearly as possible to the re-

quirements of the 1924 Act, but the defence

argued that the prosecution was required to

specify the particular acts alleged to consti-

tute the i ndecent assault. In the course of her

evidence in the defendant's trial, the com-

plainant stated that the defendant had, inter

alia, touched her breasts and inserted a stick

into her anus and vagina. The prosecution

i ntroduced genetic fi ngerpri nti ng, also ca I led

DNA profiling, which had been conducted

on swabs taken from the complainant. After

two witnesses had been examined concern-

ing the techniques involved, it emerged that

the person who had performed the actual

DNA profile was not available to give evi-

dence. Defence counsel then applied to

have the jury discharged on the ground of

possible prejudice. Prosecution counsel

stated he would no longer be relying on the

DNA evidence, and that it had been intro-

duced primarily as a test case for DNA

profiling. The trial judge declined to dis-

charge the jury, but he ruled that the evi-

dence was not admissible and warned the

jury to ignore the DNA evidence. Headlines

in the following day's newspapers stated,

inter alia, 'Genetic printing barred in rape

trial'. Defence counsel applied again to

have the jury discharged for possible preju-

dice. The trial judge declined the applica-

tion but warned the jury to ignore the news-

paper coverage and reminded them that the

trial was not one for rape. It later emerged

that the trial judge had, on an approach from

a newspaper reporter, approved the con-

tents of the newspaper reports, but not the

headlines. In his final charge to the jury, the

judge had given a warning to the jury that it

was unsafe to convict the defendant if they