The Gazette 1993

SEPTEMBER 1993

GAZETTE

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the suggestion was made that the defendant had been a member of the SAS or similar military unit, but this was withdrawn by the prosecution and the trial judge di- rected the jury to disregard this suggestion.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.]

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

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

1