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Irish Court of Criminal Appeal


You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Anthony O'Reilly [2009] IECCA 30 (02 April 2009)
URL: http://www.bailii.org/ie/cases/IECCA/2009/C30.html
Cite as: [2009] IECCA 30

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Judgment Title: DPP -v- Anthony O'Reilly

Neutral Citation: [2009] IECCA 30


Court of Criminal Appeal Record Number: 164/08

Date of Delivery: 02 April 2009

Court: Court of Criminal Appeal


Composition of Court: Finnegan J., Budd J., Charleton J.

Judgment by: Finnegan J.

Status of Judgment: Approved

Judgments by
Result
Finnegan J.
Other (see notes)


Notes on Memo: Dismiss the application for leave to appeal against conviction and sentence






THE COURT OF CRIMINAL APPEAL
[2008 No. 164]
Bill No. 62/07
Finnegan J.
Budd J.
Charleton J.

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
ANTHONY O’REILLY
APPLICANT

Judgment of the Court delivered by Mr. Justice Charleton on the 2nd day of April, 2009

1. After a trial lasting sixteen days before the Honourable Mr. Justice Kevin O’Higgins, the accused was found guilty on all three counts on the indictment proffered against him. The particulars on the first count alleged that on the 2nd February, 2007 in Arklow, in the County of Wicklow, he murdered Daniel McDonald. The second count was one of dangerous driving causing the death of Daniel McDonald on the same day and in the same place. The third count was one of reckless endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997 and the particulars alleged as follows:-
        “Anthony O’Reilly on the 2nd February, 2007, in Arklow, in the County of Wicklow, intentionally or recklessly grabbed the steering wheel of motor vehicle 91WW 3504 from Jennifer Tobin and caused motor vehicle 91WW 3504 to swerve towards Daniel McDonald, in such a manner as to create a substantial risk of death or serious harm to Daniel McDonald.”

2. It is only against the conviction for murder that the applicant seeks leave to appeal. He raises only one point: that the learned trial judge should have withdrawn the murder charge from the jury because the prosecution case contained an inherent contradiction in the evidence necessary to sustain that charge. In consequence, it is argued that the jury could not safely have been allowed by the learned trial judge to determine the case. The Court is of the view that this submission should be looked at in the context of the evidence adduced at the trial. The applicant did not give evidence in his own defence. Two witnesses who were introduced as experts were, instead, called on his behalf. Their evidence was to the effect that it was possible that the death of the victim could have been due to an accident. It is on this contention, ably argued in front of the jury on both sides, that this appeal has been principally argued. To consider it within its proper context, the Court now turns to the other evidence adduced at the trial.

The circumstances

3. On the 1st February, 2007, the applicant and the deceased, Daniel McDonald, were both in a nightclub called Rascals in Arklow town in the County of Wicklow. Each of them was in company with a group of people; but each group was separate from the other. An altercation arose between the two of them. Both were expelled from the nightclub. An unpleasant exchange then took place out on the main street of Arklow. The applicant threatened to kill the deceased and it appears that the applicant was chased down the street by a group of the deceased’s friends and jumped into a car. The deceased was intent on pursuing the applicant. He jumped on this car before it could move off. In some way he got his leg caught in the front passenger window of the car. Notwithstanding this, the car drove someway down the road with the deceased trapped in this position. The deceased freed himself and went back to the pavement outside the nightclub.

4. What happened next was the subject of count No. 3 on the indictment, in respect of which no appeal has been brought. The driver of the car refered to in that count in the indictment was Jennifer Tobin. She drove away from the nightclub, with the applicant as a passenger, to the top of the street and then turned back in the direction of the nightclub. She had no sinister intent in choosing this route. The applicant, who was then a front seat passenger in this car, spotted Mr. McDonald on the roadway. He grabbed the steering wheel from Jennifer Tobin and swerved the car towards the deceased. It missed. He then looked for his own car. The red Honda Civic owned by the applicant was down towards the end of that road. It was then being driven by a man called Keith Ennis. Jennifer Tobin was made to stop the car and the applicant’s car pulled in behind it. He then got into his own car and, taking over the driving from Keith Ennis, proceeded up the street at very high speed.

5. He again passed the deceased and his group, apparently making a gesture at the deceased Mr. McDonald. The evidence was that there was a number of ways in which the applicant could have left Arklow in order to travel home. He did not take any route out of the town that did not involve passing by the nightclub. Instead, at the top of the street, he turned around and drove back towards the nightclub area at speed. At this point there is a bend in the road that veers around at an angle of approximately 80 degrees.

6. The applicant had given a statement to the Gardaí, upon being arrested, which was exculpatory in nature. Such a statement is not given under oath and nor is it capable of being subjected to cross-examination before the jury. It is akin to an unsworn statement from the dock, a practice abolished by s. 23 of the Criminal Justice Act 1984. As this Court held in The People (DPP) v. John Clarke [1994] I.R. 289, such a statement is evidence in the real sense of the word, not only against the person who made it, but in his favour as to facts contained in it that may assist his case. A jury is not bound to accept any such facts as true. Instead they are to weigh them and consider them as evidence, bearing in mind that such evidence has not been subjected to the important scrutiny of cross-examination on behalf of the prosecution and has not been given on oath; The People (Attorney General) v. Crosby (1961) 1 Frewen 231.

7. What weight as evidence, therefore, the jury might attach to this unsworn and untested statement, the Court does not know. The applicant had said that he “definitely didn’t mean to hit this fellow with my car. He just stood out in front of me and I didn’t get a chance to react”. He also claimed this:-
        “The road, sort of, was bending, so I went across the road onto the wrong side. With the speed and with the parked cars and that were there on my left, I was cutting into the corner to get around it. I had to get around it. Just as I was on the corner of the bend, this same fellow, the fellow whose leg was caught in the car window earlier, stepped out into the road with his arms out. I was going so hard I couldn’t stop.”

8. Other evidence directly contradicted this statement of the applicant. Apart from the evidence of reckless endangerment to which the Court has already referred, the testimony before the court of trial established, should the jury have chosen to accept it, that the applicant had threatened to kill the deceased man; that he had told him “you’re dead, you’re dead”; that he had looked for a wheel brace as a weapon against him; that he had told him “I know where your gaff is and I will kill you”; and that he had raised the question of obtaining a shotgun from the house of a friend.

9. Michael Kenny, an eyewitness to this killing, described the applicant in his car driving in the direction of the deceased, apparently having both his hands on the steering wheel, and turning in from his correct carriageway towards where the deceased man was standing on the opposite side of the road, striking him and killing him. The deceased had attempted to jump out of the way. At this stage he was still on the far side of the road. Another witness, Pascal O’Reilly, testified that when the deceased came out from the pavement on the far side of the road, that the applicant swerved his car in his direction. He continued:-
        “He knew exactly where we were ‘cause within the time of him driving by us and giving us the fingers to going up and doing a three point turn it was ten to twenty seconds. He knew exactly where we were on the street and he was coming back down to hit, and that is the truth … he swerved straight into hit Daniel McDonald. There is no doubt in my mind.”

10. This witness also testified that the applicant could easily have avoided the deceased and that he had to veer his car in order to hit him. There was no evidence of a skid mark on the road, indicative of the use of brakes. Nor was there any sign of any cars parked on the left which the applicant had claimed had restricted his ability to swerve.

11. Such is a brief summary of the evidential context and the Court now turns to the prosecution evidence that, it is claimed, should have caused the learned trial judge to grant a direction. The Court notes that this application for a direction was not made at the close of the prosecution case. Rather some defence testimony on engineering and accident reconstruction matters was called. Then, the application was made to the learned trial judge to withdraw the count of murder from the jury. That application focused on the evidence of Garda Edward Daven of the Dublin Metropolitan Regional Traffic Division.


Evidence of Garda Daven

12. From reading the transcript, it is clear to the Court that Garda Edward Daven could have been seen by the jury as a competent and careful witness. It is not for this Court to indicate any view of his evidence. Many mathematical calculations were put to him, based on advice received by the defence. These included reaction times, braking times, skid factors and statistical information based on accident investigation as to how drivers may react in particular situations. As has been mentioned, the bend proximate to where this killing took place had, in its entirety, an angle of 80 degrees. The main proposition on behalf of the defence was that centrifugal force, perhaps coupled with some form of driver error in an emergency, could have resulted in the accused driving towards the deceased inadvertently.

13. Garda Daven accepted the proposition that a car travelling at speed around a right hand bend would be drawn straight ahead by centrifugal force and that this force would increase depending on speed and the friction factor between the tyres of the vehicle and the roadway. Whether going left or right around a bend centrifugal force would operate so as to veer the car into a straight line, a factor that might cause driver error and something that might be added to by the lack of friction between the car tyres and the road surface. That friction factor would decrease in wet weather. This vehicle, on the evidence presented, was in perfect mechanical condition and the road was not wet. Garda Daven indicated that calculations based on his expertise allowed him to deduce the speed at which the applicant’s vehicle was travelling when he hit the deceased. This speed was calculated by reference to the distance from the point of impact to the point where the deceased’s body came to rest. Using three different methods of calculation, his view was that the vehicle of the applicant had been travelling at an average of 74 kilometres per hour or 46 miles per hour. The highest value yielded would have been 84 kilometres per hour or about 50 miles per hour. While he indicated that he was not an expert in the field of video recording, the video footage made on the security devices of premises along the street allowed calculations to be made that tended to indicate the speed of the applicant’s vehicle when it struck the deceased at 80 kilometres per hour, or around 50 miles per hour.

14. Garda Daven was also of the view that there was no brake light shown on any of the video recordings and that there was no brake skid mark apparent on the roadway at any point prior to the point of impact.

15. Garda Daven calculated the speed at which a vehicle would go out of control on taking this bend in Arklow Main Street. This calculation showed that the applicant should have been more than able to control his vehicle at the time of impact as on any available calculation, the jury was entitled to accept that he was well below that speed. In part, the report of Garda Daven read to the jury, was as follows:-
        “The pedestrian is shown to have been launched post-impact with the vehicle and travelling for a minimum distance of 32.8 metres before coming to rest on the eastbound land outside the Chef restaurant. This would indicate that the pedestrian was accelerated to between 63 and 78 kilometres per hour at the time of impact, and the incident took place in a 50-kilometres-per-hour zone. Tyre scuff mark was located at the scene east of the area of impact with the pedestrian. That is down the hill from the area of impact with the pedestrian. The marks were not consistent with having been made by a vehicle under emergency braking. Video footage shows that at the time of the impact at least two vehicles were parked adjacent to the south kerb in the vicinity of the hotel and the A.I.B. Bank. However, the opposite side of the road was clear of obstruction. Skid tests were performed at the scene to evaluate the level of brake available on the street surface. This information was also used in determining the maximum design speed for the bend for a vehicle in perfect mechanical order … It is unlikely therefore that the vehicle would have crossed the centre line entering onto the incorrect side of the roadway and colliding with the pedestrian without steering input from the driver. The vehicle came to rest straddling the yield line for the junction with Bridge Street Upper having travelled approximately 55 metres after colliding with the pedestrian and subsequently collided with a pedestrian bollard on the footpath outside Oxygen and the corner of the adjacent building.”

16. In cross-examination the idea that centrifugal force might have had some impact on this accident was put to Garda Daven. He agreed with certain calculations based on the prediction of accidents. The cross-examination by the defence continued as follows:-
      “Q. And insofar as centrifugal force is concerned you agree that the driver going on the straight and then turning into the right, that centrifugal force is drawing him onwards in a straight line?
A. That is correct.
      Q. And a good example is the Olympic Games with the hammer, once it is released it will shoot off at a tangent and go in a straight line?
A. That is it exactly, my Lord, yes.

Q. And the driver is going to have to come to terms with this force to negotiate safely around the bend?

A. Yes, my Lord.

Q. And is not the thing that drivers do safely negotiate around right-hand bends is to cut the corner and move from their correct carriage [way] into the offside carriage[way]?

A. It has its problems in doing that, my Lord.

Q. Would you agree with the proposition in the first place that somebody going around the right-hand bend to counteract the effect of centrifugal force, one way of doing that is to cut the bend?

A. That is a potential, yes.”

17. In terms of the reaction time available to the applicant, from the time he may have seen the deceased to the time he struck him with his car, Garda Daven agreed that it might be less than two seconds. All of this, however, presupposes that a person driving a car was dealing with an emergency and not using his vehicle as a deadly weapon. Garda Daven also agreed that the safe maximum speed for taking this bend, which he had calculated at 103 kilometres per hour in this particular vehicle, might be reduced by such factors as road camber and weather conditions.

18. On re-examination the following exchange occurred between Garda Daven and counsel for the prosecution, Mr Marrinan S.C., and the learned trial judge:-

“Q. Mr. Marrinan … the damage to the vehicle is on - there are three areas of damage to the vehicle that are relevant: the front leading edge of the bonnet on the right-hand side, the damage to the windscreen on the right-hand side from which D.N.A. was extracted – and we know it was the blood of Daniel McDonald – and then damage to the roof section, almost all in a straight line and all on the right hand side more or less centred to the right-hand side; is that right?

A. That is correct, my Lord.

Q. Now, the vehicle being a hundred per cent on its incorrect side of the road, what do you deduce from that?

A. That at the area of impact the pedestrian was a minimum of 1.3 metres away from the centre line towards the footpath.

Judge. At a minimum?

Mr. Marrinan: 1.3 metres.

Judge 1.3.

Q. Mr. Marrinan: that is the minimum?

A. That is a minimum, yes.

Q. Now, just coming back to the last point then in relation to centrifugal force, you have indicated that that would tend if anything to push the vehicle away from the offside land; is that not right?

A. Yes, yes, my Lord.

Q. And it has been put to you that in terms of that the natural reaction would be to cut the corner? Now, I just want to be clear about this. You then went on to say in relation to twenty per cent of drivers would swerve and the rest would brake. What would be the natural reaction of a driver faced with situation where their speed was in excess of that permitted [on the road]?

A. I cannot say for everyone, my Lord, but I think most prudent people would try to reduce their speed.”

19. The views expressed by Garda Daven were but part of a matrix of evidence put to the jury for their consideration. In order to consider whether the learned trial judge was correct in his ruling the Court must go on to review that ruling; then refer to the relevant authorities as to the role of the trial judge on an application for a direction being made to him before the case is put to the jury; and consider how expert evidence should be dealt with.


Ruling of the trial judge

20. O’Higgins J., the learned trial judge, ruled on the application for a direction as follows:-
        “…I think the law is fairly clear, that in adjudicating on an application such as the present one, one puts the prosecution case at its highest. The evaluation of the evidence is entirely a matter for the jury and not a matter for the Judge, and clearly the jury are entitled to rely on bits of evidence and not to rely on other bits of evidence, and to accept some evidence and to reject other evidence, and so forth.

        But, it seems to me that there is abundant evidence on which the jury could decide that the accused man was very angry, that he had strong animosity towards the deceased, that he wanted in some way to get [at] or punish or get even with the deceased, there is evidence on which it could be held that the accused even tried to run down the deceased a very short time before the incident – the subject matter of the murder charge.

        It is true that there has been a lot of scientific evidence – or at least some of it scientific evidence, and it is a matter for the jury what weight they put [on] the scientific evidence and … the video evidence. If I were on the jury, I would put very little weight on either, because it is a question of this theory or that theory, and the other theory and people trying to reconstruct what may have happened. The jury, of course, can take a totally different view and regard these matters absolutely pivotal. The jury could place great reliance on the C.C.T.V. If I were on the jury I would not, but that is none of my business, that is a matter for the jury.

        [Garda Daven in] dealing with these matters undoubtedly accepted the possibility of a more benign scenario that was mentioned by Mr. O’Carroll [counsel for the defence], but it seems to me that that does not dispose of the matter. What it seemed to me [it] was that he was accepting that one of the things could be an accident – the centrifugal force, somebody cutting the corner. That is a matter for the jury whether they accept that. What the jury have to decide is whether this was an accident or whether they have any reasonable doubt that it was an accident and [stop T]here is in my view abundant evidence on which the jury could decide that when the accused man ran into the deceased man with a car he intended to do that, that he intended to kill him or that he intended to do serious injury … So, I am prepared to leave the charge of murder to the jury on the basis that there is evidence to sustain it, and that it is really a matter for them as to whether it has been proven or not, but there is, in my view, evidence [on] which they could properly charged arrive at that conclusion.”

21. This ruling is challenged by the applicant on the basis that it is legally incorrect. The Court does not agree.

Direction application

22. Under Article 38.5 of the Constitution an accused has an entitlement to be tried in respect of a non-minor criminal offence by a jury. In the case under appeal, therefore, the Constitution requires that a jury try it. It is only in circumstances warranted by law, therefore, that a trial judge should withdraw a case from the consideration of a jury and give a direction that the accused should be found not guilty. The appropriate test to be applied at the direction stage of a criminal trial was previously considered by this Court in The People (DPP) v. Leacy (Unreported, Court of Criminal Appeal, 3rd July, 2002). Giving the judgment of the Court at pages 5 – 7, Geoghegan J. stated the following:-
      “The legal principles applicable to the granting or refusing of a direction were accepted by Mr. Vaughan Buckley to be those laid down by the English Court of Appeal in Galbraith (1981) 73 Cr. App. R. 124 and reported also (inter alia) [1981] 1 WLR 1039. At p. 1042 in the latter report, Lord Lane C.J. is quoted as follows:

      "How then should the judge approach a submission of 'no case'?
(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ...
            There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge."
      In Blackstone's Criminal Practice (1991) there is considerable discussion of this case and related cases in section D 12 and the learned authors "with some hesitancy" set out in section D 12.31 the following propositions as representing the effect of the English decisions but primarily Galbraith.

      “(a) If there is no evidence to prove an essential element of the offence a submission must obviously succeed.
(b) If there is some evidence which - taken at face value - establishes each essential element, then the case should normally be left to the jury. The judge does, however, have a residual duty to consider whether the evidence is inherently weak or tenuous. If it is so weak that no reasonable jury properly directed could convict on it, then a submission should be upheld. Weakness may arise from the sheer improbability of what the witness is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated experience of the courts has shown to be of doubtful value (especially in identification evidence cases, …)

(c) The question of whether a witness is lying is nearly always one for the jury, but there may be exceptional cases (such as Shippey) where the inconsistencies (whether in the witness's evidence viewed by itself or between him and other prosecution witnesses) are so great that any reasonable tribunal would be forced to the conclusion that the witnesses is untruthful. In such a case (and in the absence of other evidence capable of founding a case) the judge shall withdraw the case from the jury.”

This citation would seem to represent also what would generally be

understood to be the law in this jurisdiction in relation to applications for a

direction”

23. This application for a direction was based upon an argument by Mr O’Carroll S.C. for the defence that Garda Daven’s testimony had established an inherent inconsistency within the prosecution case. If this could be said, then the same might be said on the exculpatory statement made by the applicant while in Garda custody. The Court is of the view that it is not the law that any inconsistency within a prosecution case should cause a trial judge to grant a direction of no case to answer. The Court notes that in R. v. Shippey [1988] Crim. L.R. 767, a direction was granted by Turner J. on the charge of rape. His ruling was based upon his assessment of crucial parts of the prosecution case as being “frankly incredible” and as having “really significant inherent inconsistencies” and as being “strikingly and wholly inconsistent with the allegation of rape”. According to the report, the test used by Turner J. was to ask if the witness’s evidence was self-contradictory and out of all reason and common sense. For a direction to be given the case had to go beyond a matter of credibility of individual witnesses or evidential inconsistency.

24. A similar approach was adopted by this Court in The People (DPP) v. M. (Unreported, Court of Criminal Appeal, 15th February 2001). There, the issue before the Court was whether a direction should have been granted on a sexual assault charge. The offence involved the accused touching the victim’s breasts. The Court took the trouble to recite passages from lengthy cross-examination of the victim. Based on this cross-examination, an application was made to the Court that a direction should have been granted because different descriptive terms were used by the victim in her evidence. A court of trial should always bear in mind that a truthful witness may still become confused. The Court ruled that while some inconsistencies existed, they went to the issues of credibility and reliability which, as matters of fact, are the duty of a jury to determine. Giving the judgment of the Court at page 15, Denham J. stated:-
        “If there was no evidence that an element of the crime alleged had been committed, the situation would be clear. The judge would have to stop the trial. However, that is not the situation here. If a judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict it is its duty to stop the trial. However, that is not the case here. Here there is lengthy evidence from the complainant in which there are some inconsistencies. These inconsistencies are matters which go to the issues of reliability and credibility and thus, in the circumstances, are solely matters for the jury. The learned trial judge therefore was correct in letting the trial proceed. These are matters quintessentially for the jury to decide. However, if the inconsistencies were such as to render it unfair to proceed with the trial then the judge in the exercise of his or her discretion should stop the trial. However, that is not the situation here. On the facts and law the learned trial judge did not err in refusing to withdraw the count in respect of sexual assault from the jury at the conclusion of the prosecution case.”

25. This approach accords with that taken by the learned trial judge.
Expert Evidence

26. The Court is wary of any submission that attempts to afford any expert evidence any especial degree of weight. The weight to be attached to such evidence is a matter for the jury. If an expert on behalf of the prosecution had indicated that the core of the case as presented on behalf of the prosecution could not possibly or reasonably be correct, then this testimony would have to be assessed by the learned trial judge in the light of all of the relevant tests when considering whether to grant a direction. There is another reason why expert testimony should not be given any particular standing. Experts may, for reasons of their own, take diametrically opposed views on even quite simple issues. The experience of the courts over many years in respect of many different experts on many different issues bears this out.

27. Under the law of Scotland, a criminal prosecution must be supported by corroboration. However, if an expert gives testimony as to a fact central to the prosecution case, as an exception, his evidence does not have to be corroborated. In Davie v. Magistrates of Edinburgh [1953] S.C. 34, the Court of Session held that to apply the corroboration requirement to an expert giving evidence in a criminal trial would lead unnecessarily, and to no effect, to the repetition of evidence; two experts instead of one. At page 40 of the report, however, the Lord President, Lord Cooper, made a statement as to the correct approach to experts’ testimony which this Court will adopt:-
        “Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court – S.S. Bogota v. S.S. Alconda [1923] S.C. 526. Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury.”

28. It is apparent to this Court that the testimony of Garda Daven was capable of being seen by the jury as both careful and measured. Admitting an alternative possibility on a matter on which an expert may express an opinion is not a ground upon which a direction should be granted. All of the testimony of Garda Daven on the issue of what might have happened was entirely hypothetical. He was not a witness to what happened. There was no basis upon which it could be said that it rendered the prosecution case so inherently contradictory that the thrust of the prosecution case had lost reason and common sense. The ruling of the learned trial judge was therefore correct.

Result

29. In the result, therefore, the Court will dismiss the application for leave to appeal.





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URL: http://www.bailii.org/ie/cases/IECCA/2009/C30.html