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Irish Court of Criminal Appeal
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Cite as:  IECCA 16,  4 IR 105
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Judgment Title: DPP -v- Peter McDonnell
Composition of Court: Kearns J., Budd J., Herbert J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Dismiss Appeal
THE COURT OF CRIMINAL APPEAL
[C.C.A. No. 193 of 2008]
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANTJUDGMENT of the Court delivered by Mr. Justice Kearns on the 3rd day of March, 2009
This matter comes before this Court by way of an appeal against severity of sentence brought by the applicant Peter McDonnell following a sentencing hearing in the Dublin Circuit Court at which, in addition to the direct evidence tendered by the prosecution, it is alleged on behalf of the applicant that some hearsay and opinion evidence was also received by the court.
On 25th February, 2008 the applicant entered a plea of guilty to the offence of possession of a controlled drug, to wit, cocaine for the purpose of sale or supply at Cushlawn Way, Tallaght in the City of Dublin on 10th November, 2006, contrary to s.15 and s.27 (as amended by s.6 of the Misuse of Drugs Act, 1984) of the Misuse of Drugs Act 1977, and the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Act of 1977. Subsequently, on 16th June, 2008, he was sentenced to a term of imprisonment for three years in the Dublin Circuit Criminal Court. The final twelve months of the sentence were suspended on terms for a period of three years. A co-accused, David Doyle, who had similarly entered a plea to possession of a controlled drug for sale or supply on the same date and at the same address, received a sentence of three years which was wholly suspended on conditions. Neither man had any prior convictions.
The background facts may be briefly stated. On 10th November, 2006 Detective Garda Griffin and a colleague, Garda Noonan, were maintaining surveillance of dwelling house premises at 86 Cushlawn Way in Tallaght and had in their possession a warrant to search the premises in question. During the course of the surveillance operation, a silver Nissan motor vehicle drove into Cushlawn Way and parked outside number 86, a dwellinghouse occupied by David Doyle. The driver of the motor car was the applicant. Shortly after the applicant arrived, David Doyle also arrived and both men entered the dwelling house. Approximately fifteen minutes later the applicant left the dwellinghouse and drove out of Cushlawn Way in his motor car. The car was stopped and searched and during the course of this search the applicant attempted to discard a bag containing just under €1,000 worth of cocaine. The gardaí then proceeded to search the dwelling house and there found a stash of cocaine with an approximate street value of €7,080, together with a weighing scales and a small sum of money. In the course of garda interview David Doyle indicated that he was storing cocaine in the house for some other party because he owed a debt. He stated he was working off the debt by storing the cocaine and claimed to be in genuine fear of the person for whom he was holding the drugs. He admitted to using cocaine himself and had run up a drug debt as a result.
The applicant, Peter McDonnell, also accepted that he had been involved with drugs for a number of years as an addict and that his addiction to cocaine had “spiralled out of control” since 2005. He answered all questions put to him in interview by the gardaí following his arrest.
In the course of the sentencing hearing, the trial judge intervened during the course of the cross-examination of Detective Garda Griffin by counsel for the applicant to ask the following questions:-
Q. Right, which of them?
A. Mr. McDonnell. Mr. McDonnell was the primary target in this operation.”
By consent of the learned trial judge, Detective Garda Griffin was re-cross examined by counsel for David Doyle as follows:-
Q. Just one question with your permission, Judge. Insofar as you expressed at the outset to the Judge’s questions that this was something that had been going on for a number of years, correct me if I am wrong, but I don’t believe you’re asserting that my client was somebody who had been engaged in this sort of business for a period of years; isn’t that correct?
A. That is correct, Judge. Yes.
Q. JUDGE: How long do you believe that Mr. Doyle was being used?
A. For a number of months prior to the incident, Judge. Mr. Doyle’s name only came into the operation at a later stage.
JUDGE: All right. I am much obliged, thank you.
Q. Over that last three years has any evidence been brought forward which has led to Mr. McDonnell being charged in relation to something similar?
A. Sorry can you repeat the question?
Q. Has any evidence been brought forward to the point where Mr. McDonnell has been charged with a similar type of offence, because at this stage we’re really dealing with speculation intelligence, suspicion? Mr. McDonnell has pleaded guilty to count 3, and he has never been charged with this offence before?
A. He hasn’t been charged with any other offences, only in relation to this incident Judge.
JUDGE: I am obliged, thank you.
In sentencing the applicant he drew a clear distinction between the two accused and stated as follows:-
While multiple grounds of appeal have been filed, they essentially consist of that raised in the following terms:-
There is no entitlement in the Court’s view to receive general opinion evidence in such circumstances …”
In response, Mr. Sean Gillane, counsel for the respondent, argued that rules of evidence prevailing at trial have never been applied in the course of sentencing hearings. He contended that virtually all sentencing hearings are comprised of significant levels of hearsay evidence as they generally involve a single member of An Garda Síochána who gives an overview of the background to the case and the circumstances of the accused, in the course of which he will testify as to matters of which he has no direct knowledge. This operates, he said, in general more to the advantage of an accused person than to the prosecution. Various examples were offered, such as the commonplace enquiry of a garda as to whether he believed the accused would be before the courts in the future, the prosecuting garda’s lack of “prior knowledge” of the accused and the role which an accused person may have played in rehabilitating himself or in supporting his family or dependants
In the instant case, Mr. Gillane pointed out that it was counsel for the applicant’s co-accused who raised in evidence the question of being “known to the gardaí” and as such, the sentencing judge was entitled to enquire whether the same mitigating circumstance prevailed as regards the applicant. The co-accused had thus clearly presented his case on the basis that the opinion evidence of a garda officer was admissible and to be relied upon. These issues were also the subject of re-examination and neither accused objected to the questions when they were actually put to the garda. Mr. Gillane submitted that in those circumstances the learned sentencing judge was entitled to be furnished with relevant information regarding the background and context of the offences before him. He further submitted that it was clear from the case advanced on behalf of the applicant that the applicant wished to make general assertions concerning his involvement in the consumption of controlled drugs and thus the questions asked and answered were of direct relevance. If a court is asked to form an opinion, in ease of an accused person, in respect of previous dealings in controlled drugs, Mr. Gillane submitted that the court is surely then entitled to hear evidence which might speak to the appropriateness or otherwise of drawing such a conclusion.
The court is not convinced that the decision in, Director of Public Prosecutions v. Philip Delaney, (above cited), is and, was, intended to be, authority for a proposition that opinion evidence and hearsay evidence cannot be given at a sentence hearing. Such a decision would reverse, – and in an ex tempore judgment – the long established jurisprudence of the courts here in dealing with sentencing matters: a jurisprudence now followed for more than a century. It is adverted to by Alverstone L.C.J. in Douglas Campbell  2 C.A.R. 131 at 132/3. It was again stated by Goddard L.C.J. in William John Linsey Marquis  35 C.A.R. 33 at 35/6. This latter decision was cited and applied by Gannon J. in State (Austin Stanbridge) v. Seamus N. Mahon  I.R. 214 at 218 /9 (a certiorari application, in which a convicted person alleged that he was not given an opportunity of dealing with prosecution evidence of his bad character)
In Director of Public Prosecutions v. Philip Delaney (above cited) Hardiman J. delivering the judgment of this Court held that, part of the evidence as to the quantity of drugs involved, the fact that they were handled in a professional way, and the matters in respect of the diary and the mobile telephone number, were admissible at the sentence hearing and to them there could not be a valid objection nor, was there in fact an objection. This was clearly because this evidence was directly relevant to the s. 15 charge to which Delaney pleaded guilty.
However, as to the question from the learned trial judge to the garda witness in that case asking as to where, if there was a hierarchy of drug dealing or possession for supply, he would grade the convicted man on a scale of 1 to 10, Hardiman J. held that this was to invite opinion evidence relative to facts entirely extraneous to the matter charged and to which the plea of guilty had been entered, and as such was inadmissible. This had in fact belatedly dawned upon the learned trial judge who tried to resolve the dilemma of having heard some evidence in this regard by holding that he would receive it “de bene esse” but that he would otherwise ignore it.
Again Hardiman J. correctly, in the view of this court ruled that this could not be done, whether during a trial or at the sentencing stage. The material which the learned trial judge sought to elicit was extremely prejudicial to the convicted person, was not relevant to the offence to which he had pleaded guilty, and did not relate to a previous conviction or to a subsequent conviction which he asked to be taken into account, and did not pertain to what Ryan and Magee (The Irish Criminal Process) refer to as “antecedents of the accused” (pp. 393/4).
In the opinion of the court the evidence elicited in the Delaney case was far worse than giving evidence of “other complaints”, which was condemned by Gavan Duffy P. in People (Attorney General) v. Michael J. Riordan  I.R. 416, as “hearsay evidence [which] could have no bearing on the proper sentence to impose [and] ought not to have been tendered”.
It is an undeniable fact that a wider range of evidence has historically been regarded as being admissible for the purpose of sentencing than would be admissible at the pre-conviction stage of a trial.
The Law Reform Commission in its Consultation Paper on Sentencing (Dublin 1993) explicitly refers at para 1.22 to the fact that the rules of evidence are relaxed in sentencing hearings when it comes to character evidence “so that hearsay evidence may be relied upon”. Indeed in most cases a court will not impose sentence until it has had the benefit of considering reports from a variety of sources, perhaps most importantly from the Probation Service, in circumstances where large quantities of hearsay or opinion evidence are thereby placed before the court. It is difficult to see how sentencing courts could properly function without such information, or how, without causing administrative chaos, it could be received in any other way. Obviously defence counsel or solicitor, or an unrepresented prisoner could indicated an opposition to the content of a probation report or a Victim Impact Report or statement, and the court would have to take cognisance of and deal with such objection.
In the view of the Court an accused person would be singularly disadvantaged if the rules of evidence on sentencing hearings were to be applied in precisely the same manner as at trial. Many a convicted person has received a more lenient sentence as a result of gaining the benefit of hearsay evidence given by garda witnesses, whether it be in respect of one of the examples cited above or even a speculative belief on the part of a garda witness that the accused person will not re-offend. This is a valuable relaxation of the strict rules of evidence which operates for the benefit of convicted persons and has enabled the sentencing judge to construct a sentence which places the offence in context and which reflects the rule of law that the sentence is not for the offence, but rather for the offence committed by the particular offender. Were hearsay evidence to be regarded as inadmissible ‘in sentencing as at trial’ as contended for by counsel for the applicant, one might argue that its exclusion would have to operate even-handedly so as to also rule out, or at least render objectionable, the leading of hearsay evidence which is favourable to the accused as well as evidence which is unfavourable. The importance attached by the European Court of Human Rights to the principle of égalité des armes would seem, if one were to apply it in this context, to suggest no less. Moreover, a sentencing judge would be severely disadvantaged if obliged to approach sentencing in such a blinkered manner. A sentencing judge should not be obliged to structure the sentence in a case in a kind of factual vacuum devoid of all relevant contextual and background information.
To the extent that it might be sought to interpret the decision of this Court in Director of Public Prosecutions v. Phillip Delaney (Unreported, Court of Criminal Appeal, 28th February, 2000) in some such fashion, this Court, as appears hereunder, would wish to confirm that it does not share such a view.
Other than the decision of Gannon J. in State (Austin Stanbridge) v. Seamus N. Mahon, (above cited), there is a paucity of recent Irish cases providing guidance on the issue of the admissibility of hearsay evidence in sentencing. Other rulings and judgments of this Court which touch upon this topic in recent times, including D.P.P. v McManus (Unreported, Court of Criminal Appeal, ex tempore, 21 March, 2003), D.P.P. v Murphy (Unreported, Court of Criminal Appeal, ex tempore, 14 May 2002) and D.P.P. v Furlong (Unreported, Court of Criminal Appeal, ex tempore, 20 December, 2002) stop short of any detailed analysis of this difficult question.
The Consultation Paper of the Law Reform Commission to which reference has already been made, noted at para. 1.41 that the first task of a sentencing judge is to determine the factual basis upon which to assess the appropriate sentence. It noted that:-
(a) The sentencer must not impose sentence on the basis of an opinion that the offender is actually guilty of offences with which he or she has not been charged
(b) Where an offender has been tried and acquitted on some counts but convicted on others, the evidence of the charges of which he or she was acquitted must be disregarded
(c) Where an offender pleads guilty to some of the counts, but not to others, he or she must be sentenced only on the charges to which he or she has pleaded guilty
(d) Where an offender pleads guilty to a lesser offence not charged he or she must not be sentenced on the charge to which he or she has pleaded not guilty
Subject to those constraints, The Law Reform Commission nonetheless stressed that the imposition of an appropriate penalty required that the sentencing court should have before it appropriate information. At para. 11.4 of the Consultation Paper, the Commission adverts to the real probability that:-
Assistant Professor Michael S. Pardo, (University of Alabama School of Law), in an article entitled “Confrontation Clause Implications of Constitutional Sentencing Options” (2006) 18 (4) Federal Sentencing Reporter 230 at p.230 submits (correctly we believe), that:-
In Canada a sentencing court is allowed to consider hearsay evidence. Indeed it is specifically provided for in the Criminal Code of Canada at s.723 (5). The general rule is that hearsay evidence is admissible but that viva voce testimony may be ordered from any person who has personal knowledge of the matter, is reasonably available and is a compellable witness when this is in the interests of justice. It is a matter for the discretion of the sentencing judge who is required under s.723 (2) of the Criminal Code to hear “any relevant evidence” during a sentencing proceeding. S.724 (3) further provides that where facts are disputed the court will hear evidence.
Thus in R v. Gardiner  2 S.C.R. 368. (1982) 68 C.C.C. (2nd) 477 (S.C.C.) at 514 the Canadian Supreme Court stated:-
Both of these cases were cited in support of a recent decision by the Court of Appeal in R v Piche 2006 A.B.C.A. 220 approving a sentencing court’s decision to receive old clinical and institutional reports of an offender’s ‘dangerousness’ although they contained hearsay.
The Australian Law Reform Commission in A.L.R.C. Report No. 44 ‘Sentencing’ published in 1988 noted that in respect of facts considered relevant by the court after conviction, the rules of admissibility were not to be applied strictly by sentencing courts to evidence adduced to prove those facts. It believed that to apply such rules would transform the sentencing hearing into an adversarial proceeding with increased costs and delays. It might also exclude, as this Court has already noted, some useful evidence e.g. of remorse, or that the offence was out of character. On the other hand the Commission noted that there remained the possibility of decisions being based on inaccurate or unfairly prejudicial material but nonetheless did not recommend the imposition in all cases of exclusionary evidentiary rules where facts relevant to sentence were in dispute, pointing out that if a particular factual dispute assumed special significance, the court’s finding should be based on strict proof. It would be for the court to decide whether a particular fact fell into this category. In all other instances decisions as to evidence would still have to be made rationally and fairly. Significantly, in its latest report on the sentencing of offenders: “Same Crime, Same Time” (2006), the Australian Law Reform Commission (at para. I3.83) re-iterated its view that rules of evidence should not be applied strictly at sentencing hearings. The Australian courts may however in an appropriate case give a direction that strict rules of evidence shall apply.
It is, of course, fundamental in considering the nature of admissible evidence to have due regard to the potential danger which can arise where evidence is given by a prosecution witness, usually a police officer, as to an accused person’s character.
the case of, Douglas Campbell  (above cited), Alversone L.C.J. held as follows:-
At times no doubt, the police officers on these occasions say more than they ought to say against prisoners; but there is nothing to shew that that occurred in this case. It is important to consider what the action of the Court should be when it is suggested that some of the statements are no not correct. If the prisoner wishes to deny anything, he can, especially if he is represented by counsel, do so at the time. In this case he had every opportunity of doing so, and it does no appear that he now wishes to contradict the statements, but merely to urge some extenuating circumstances. If the prisoner challenges any statement it is the duty of the judge to enquire into it; if necessary he should adjourn the matter and if it is of sufficient importance he may require legal proof of it. Or he may ignore it and if he does so he should state that he is not taking it into consideration. If the prisoner does not challenge the statements, the court may take them into consideration, and no injustice is likely to be done. Very often it is in the prisoner’s interest that his antecedents should be stated: if it is not so, that is not the fault of the police, but of the antecedents.”
As the Irish Law Reform Commission noted at para. 1.23 of its paper:-
Hearsay evidence of character, antecedents, and as to the background to the particular offence being dealt with, including the extent of the role played therein by an accused may, at the discretion of the sentencing judge, be received, subject to the requirement that if a particular fact assumes specific significance or is disputed the court’s findings should require strict proof. It is a matter for the sentencing judge to decide what weight should be attached to such hearsay evidence as is received, noting any objection taken thereto and any arguments or evidence offered in rebuttal.
In relation to the instant case and the particular evidence before the sentencing court, this Court believes it was permissible for the sentencing judge to receive the evidence of Detective Garda Griffin as to which of several convicted co-offenders played a greater or lesser role in the particular offence in respect of which sentence was to be imposed. To rule out the possibility of such evidence being given in every circumstance, particularly in the context of mitigation, would mean that all co-offenders convicted of the same offence would require equal treatment, the least mature and inexperienced or the one least involved being treated in precisely the same way as the most experienced participant. The Court is of the view that such evidence may be received, as occurred in this case, not to aggravate or increase the sentence, but to assist the judge in determining what mitigating factors (if any) should properly influence the sentence he was about to impose on the various co-accused. In this case the applicant’s prior history as a drug user was not relevant to the proof of the offence charged and to which he pleaded guilty. It was offered by counsel for the applicant by way of explanation of the applicant’s involvement in the particular offence and hence a factor to be considered in mitigation. However, the question asked by the trial judge crossed the line into the realms of inadmissibility because not only was it irrelevant but also because of the suggestion of other uncharged criminality implicit in it. The sentencing judge inquired whether, and, was specifically told that the applicant had been involved in the drugs trade for “the last number of years”. The other evidence of Detective Garda Griffin that the applicant was a person who “would have been known to us for a number of years” and, his further statement, “Mr. McDonnell was the primary target in this operation”, must be seen in the context of having legitimately arisen from the above concession made by the applicant and, the evidence that Mr. Doyle was someone who up to that point was virtually unknown to the gardaí. Furthermore, in re-cross-examination by counsel for the applicant, the investigating garda made it clear that the applicant had not been charged with any other offences. That said, the Court takes the view that the question asked by the sentencing judge as to how long the applicant had been involved in the “trade” went beyond what was permissible and should not have been asked. It invited a response clearly suggesting that the applicant had been supplying or selling drugs in the past, and therefore involved in crimes in respect of which he had not been charged, tried or convicted.
The Court believes it is possible in this case to acknowledge there was an error of principle in relation to the question posed about prior involvement in the ‘trading’ of drugs but to hold nonetheless that the sentence imposed should stand. It is of significance that, in imposing sentence, the sentencing judge imposed identical sentences on both men. A distinction was drawn between them in that the entirety of the sentence imposed on David Doyle was suspended, whereas only the final twelve months of the sentence imposed on the applicant was suspended. This was because the sentencing judge found more mitigating circumstances in the case of David Doyle than in the case of the applicant. It was not the position therefore that the sentencing judge had regard to inadmissible evidence, including the impermissible question and reply thereto, as something which might go to increasing sentence. He viewed it exclusively in the context of balancing a number of competing factors going to mitigation. It was open to the sentencing judge to treat both co-accused differently. The evidence in this regard in relation to David Doyle was materially different from that in relation to the applicant. The applicant at no stage suggested that he had acted under duress or fear. Leaving aside the impermissible consideration, the sentencing court was entitled on the other evidence before it to take the view that the applicant, of the two men involved, played the more culpable role. That being so, the Court will not interfere with the sentence and will dismiss the appeal.