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Irish Court of Criminal Appeal
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Cite as:  IECCA 53
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Judgment Title: DPP -v- Stephen Carney
Composition of Court: Macken J., Budd J., O'Keefe J.
Judgment by: Macken J.
Status of Judgment: Approved
COURT OF CRIMINAL APPEAL
Macken, J. [Record No. 271/08]
DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered on the 4th day of July, 2011 by Macken, J.
This is an application for leave to appeal against the applicant’s conviction on the 8th November, 2008 for the murder of his late partner.
The Grounds of Appeal
3. The learned trial judge erred in law, and in fact, in allowing certain questions and answers in the interview notes of the applicant with members of An Garda Siochana to go to the jury, in circumstances where those questions and answers related to the state of the mind of the deceased. Those questions and answers contained no probative material and could only have caused prejudice to the applicant.
Although Mr. O’Higgins, in essence, makes common legal arguments on both grounds which centre around the prejudicial effect of their admission, it is necessary to say something about the background to the disputed admission of each category of evidential material.
The first extant ground concerns the admission into evidence of a series of three photographs of the deceased woman, to which objection was taken at the trial. The three photographs were taken by a garda, on Sunday morning, the 7th October, 2007, after the applicant had phoned the gardai and they had arrived at the apartment. These three photographs were not part of the formal post-mortem examination, when photographs might also have been taken. The photographs show the following: (a) as to the first of them, it is taken from the bottom of the bed beside which the body had been placed, and is a full length photograph of the deceased showing her head and face, although not in close up, and her body is covered by a blanket. She had been placed on the floor by the applicant, lying full length alongside her bed with her head at the top and her feet at the bottom of the bed nearest to the photographer; (b) as to the second and third photographs, they both show the deceased’s face and head in close up, and in particular they depict the state of her face, including the marks on her neck where blood had congealed, as well as marks on the rest of her face, and also the colour of her face. These features will be considered in greater detail below.
On the application of the prosecution at the trial, Diarmuid.McGuinness, S.C. sought to have these three photographs admitted on three grounds, namely: (i) that they were, in themselves, being a pictorial record, admissible, and relevant evidence of the injuries to the deceased; (ii) that they were relevant to support or clarify the evidence about to be given by the State Pathologist, Professor Cassidy, illustrating her findings and providing the bases and grounds for them, especially in relation to the colour of the face; and (iii) that they were relevant to rebut the assertion by the accused that he, the applicant, had neither intended to kill the deceased, nor even to hurt or cause serious injury to her. While accepting that such photographs are not often put into evidence, because they are seemingly prejudicial, distressing and inflammatory, nevertheless Mr. McGuinness argued at trial that they were sufficiently necessary, material and probative to overcome any objection on grounds of being unnecessarily prejudicial.
The admission of the photographs was objected to by Mr. O’Higgins for the accused on the basis that they were not admissible, because (i) they were highly prejudicial, and that such prejudice clearly outweighed any probative value which they might have, and (ii) they were not necessary, since it was conceded by the applicant that the deceased’s face had turned blue. He submitted that no issue arose on the point that her face had turned blue, which might require the admission of photographs of this type, which are not normally admitted at trial. Here, however, the gruesome photographs were not requisite, as this occurrence of the blueness of her face was admitted by the accused
The learned trial judge made his ruling, following legal argument, in these terms:
First, and on a preliminary contextual basis, Mr. O’Higgins for the applicant says it is important to view the arguments to be made by him against the following background. In the trial, the defence of the applicant was that he did not intend to kill his girlfriend, nor even to hurt her or cause her serious injury, and therefore the provisions of law relating to the requirements for establishing intent were not met. Further, the issue of provocation had been raised, and the learned trial judge had accepted that the test for permitting this to be raised as a ground of defence had been met. The prosecution, on the other hand, were contending that the required intention to kill or cause serious injury was present. The case was therefore fairly balanced between the parties, and the jury might properly have decided in favour of one or other contention. In such circumstances there is a particular onus on a party, here the prosecution, seeking to have evidence admitted in circumstances outside the norm. That onus is heavier than in a case where the run of the trial is not so evenly balanced.
In the written submissions it is accepted on behalf of the applicant that a judge in a criminal trial has a discretion to exclude legally admissible evidence tendered by the prosecution, such as photographs of the type in consideration here. In People (AG) v. O’Neill  Ir.Jur.Rep 1, Kenny J., confirmed the long established general principle that the trial judge has such a discretion to exclude material which is unfairly gruesome or inflammatory, “when its probative value is small but its prejudicial effect considerable”. It is acknowledged by the applicant that this reasoning was re-affirmed in DPP v. Meleady (No. 3)  4 I.R. 16.
In oral argument, Mr. O’Higgins contends that, as a matter of principle, there is a legal norm by which such photographs are, in practice, not admitted. He himself knows of no case in which they have been admitted. He submits that such practice, established over the years, supports his contention as to the existence of such a legal norm. In any event, he argues first, that such photographs should not be admitted, because they are not simply inflammatory, and therefore likely to be considered by the jury in a manner adverse to the applicant’s interests, but also because photographs of this type are properly excluded because they are, of their nature, prurient, repulsive and offensive. Because they are of such repellent nature, they are also wholly prejudicial. Secondly, he argues that in the present case they were also unnecessary, as the evidence then about to be given by Professor Cassidy was wholly adequate to explain to the jury the state and nature of the injuries suffered by the deceased, the applicant having accepted that the victim’s face turned blue. Mr. O’Higgins also points out the requirement for the trial judge to assess the evidence in advance of exercising a discretion, which was considered by Scarman, L., in R v. Sang  AC 402, in which he stated:
In response, Mr. McGuinness, counsel for the respondent, argues as follows: Insofar as the admission of the photographs is concerned, the issue in the case, he accepted, was whether or not the applicant intended to murder or cause serious injury to the deceased, as well as the issue of provocation. The photographic evidence was directed at several matters, including the accused’s state of mind, not, as the applicant claimed, what was in the deceased’s state of mind, but what was in the mind of the accused. One very substantial plank in the defence case was that the applicant not only did not intend to kill the deceased, or did not intend to cause her serious harm, but that he did not even intend to hurt her. Thus, how she actually met her death, both in terms of the injuries sustained and the medical evidence adduced, was highly relevant. The photographs were of significant probative value in establishing whether or not the prosecution case, which was that the applicant intended to kill or cause serious injury to her, was supported by appropriate evidence. The photographs were therefore also sought to be introduced to rebut the applicant’s defence that he did not intend to do anything other than to frighten the deceased, and certainly did not intend either to kill her or to cause serious injury.
It is further submitted on behalf of the respondent that the photographs were evidence in themselves, and while it was accepted that such photographs might not ordinarily be admitted, or even be sought to be admitted, that is not, in fact, a valid ground for objecting to their admissibility in any particular case. Although Mr. O’Higgins, on behalf of the applicant, had asserted undue prejudice, he had failed to make any serious case to support such alleged prejudice, the photographs being, on any interpretation, otherwise admissible and probative. They were finally relevant and admissible for the purposes of supporting the medical evidence as to the manual strangulation in question, to support and make clear the petechial haemorrhages, that is, purple spotting on the skin, and especially what was called the cyanosis during strangulation, and that arising as a result of the strangulation. It is possible to see in the photographs the marked distinction between the pallor on the deceased’s neck and the bluish colour to her face, caused by congestion arising from the restriction on blood flow which occurs upon appropriate squeezing or strangulation of the neck, in contrast to that arising post-mortem. Mr. McGuinness contends that the prosecution was entitled to adduce evidence as to how she appeared, as to the coloration during strangulation while the heart was still beating, and entitled to do so without unnecessary restriction, including for the purposes of rebutting the defence of lack of intention.
Counsel for the prosecution cogently argues that the learned trial judge, on assessing the arguments adduced on behalf of both parties, was entitled to consider not only that the material was admissible, as it clearly was in law, and not only that it was probative, as it clearly also was in law, but that its prejudicial weight, which was accepted as existing, did not outweigh its probative value.
In the present case the deceased died late in the evening on Friday, 5th October, 2007. The best evidence tendered in relation to the timing of the photographs is that they were taken some time after the applicant telephoned An Garda Siochana early on the 7th October, 2007, and when the gardai arrived at the apartment shortly thereafter. It is fair, therefore, to say that the signs in the photographs were of a face and body about 1½ days after her death. The first of the photographs, namely, that showing the positioning of the body, has some probative value and no significant, if any, prejudicial value, because of the nature of the photograph and the fact that it is not a photograph with any clear evidence relating to the coloration of the face, or marks on the face. It appears to have been proposed for admission in evidence to show where the applicant had positioned the body. The other two photographs both show bruising and marking on the neck and the colour of the face, and, as with many other pieces of evidence in a trial, are, or may be, reasonably considered to be prejudicial to the applicant.
It is undoubtedly the case that the respondent placed considerable emphasis on the fact that the deceased’s face had turned blue, and stressed the probative value of the photographs, for the purpose of rebutting the applicant’s assertion that he did not intend to kill or even to harm the deceased. In essence, the case for the respondent, as prosecutor, was that although the applicant had noticed that the deceased’s face had turned blue, he nevertheless continued to squeeze her neck, and therefore must have intended, contrary to the case being made by the applicant, to kill or cause the deceased serious injury. The photographs were, on that basis, probative – indeed very strongly so.
It is also the case that the prosecution was intending to lead, and did lead, evidence of Professor Cassidy, the State Pathologist, which included considerable information about the reasons why the face turns blue, including that this is caused by congestion, and information about the period of time which it takes for the face to turn blue when the throat is squeezed, and other technical matters of that nature, such as petiol markings, going towards establishing the bases for Professor Cassidy’s conclusions as to the cause of death of the deceased, that is, squeezing, and why the face would be noticeably blue in consequence. It would also assist in explaining the distinction between the colour of the face arising from what she considered had occurred through squeezing, as opposed to the face becoming naturally coloured by reason of post-mortem lividity over the period of a day and a half, an important factor in understanding that distinction and the overall forensic evidence. The photographs were notably probative on that basis also.
In the course of trial it was argued by the applicant, and is also argued before this Court, that it was not necessary to introduce the photographs in question, for two reasons. The first was that the applicant admitted that the deceased had, in fact, turned blue before dying, and secondly, the evidence to be given by Professor Cassidy orally would be sufficient to deal with the necessary technical explanations concerning the colour of the face, without having photographs of the type in issue in the present case admitted, since they were so prejudicial, and even purportedly prurient.
As to the applicant’s contention that there is a legal norm that such photographs are not admitted, the Court is not satisfied that this is so, and no case law or academic or other authority was cited in support of the existence of such a norm. It may well be a practice that, in general, photographs which are merely prurient or distressing, or even inflammatory, are not often admitted in the course of trials. It may even be the case that they are not sought to be put in evidence. But the legal norm remains the same, namely, that such evidence, if relevant, is admissible, and may be admitted provided that its prejudicial value does not outweigh its probative value, such as to lead to a likelihood of an unfair trial, or otherwise put at risk its fairness.
Because there is a balancing exercise to be carried out, a trial judge has a discretion to admit such evidence. That discretion must be exercised judicially, having heard appropriate argument on the issue, and having considered the nature of the evidence, its probative value and prejudicial effect. The issue therefore is whether the learned trial judge was correct in the exercise of his discretion in admitting the photographs on the basis of the arguments made, or was wrong in law in so doing.
In the present case the learned trial judge exercised his discretion in the manner set out above. He had before him detailed specific grounds and argument upon which he was being asked to admit the photographs, and equally detailed arguments of counsel against. He was entitled to find that the photographs would “flesh out the case of the prosecution”, having regard to the arguments put forward by counsel on behalf of the respondent, and he was entitled to find that the photographs were not “particularly shocking”.
The Court is satisfied that the learned trial judge exercised the discretion vested in him appropriately, and judicially, within jurisdiction and for stated valid reasons, and that the photographs were lawfully admitted in the course of the trial. This ground for leave to appeal cannot, in the circumstances, succeed.
The Admission of Statements of the Accused
A. I don’t know whether she was or not.
Q. She must have known that you were killing her?
A. She would have, yes.
Q. What do you think she was thinking?
A. I honestly don’t know.”
Counsel for the respondent contends that the answers were both admissible and properly admitted, because the responses showed (a) a perception by him as to the consequence of his acts; (b) a recognition by him that while strangling the victim he himself perceived she knew he was killing her; and (c) were consistent with the deceased knowing she was being killed when, in fact, she was. The response to the last question is said not to be capable of being prejudicial, since it merely stated he “did not know what she was thinking”.
It is important to note that in the context of this particular ground of appeal, there were several interviews with the applicant stretching over a few days, and as sometimes occurs, more and more information became available as the interviews progressed. The interviews, however, span a few dozen typed pages, of which the above three questions form quite a small part, which is not to say that, despite the paucity, they are not of considerable significance.
In the present case there was more than one application made in respect of answers given by the applicant to questions during interview. It is clear from the transcript that an application was made to exclude from the jury other answers given by the accused while in custody. The trial judge, having heard counsel, ruled in favour of the applicant, that exclusion of evidence being on the basis that its prejudicial effect outweighed its probative value. Thereafter, counsel on behalf of the applicant, as he was fully entitled to do, applied to exclude the questions and answers which are the subject of this application. The learned trial judge was, in that context, clearly on alert to all arguments being made.
Detailed submissions were made on behalf of the applicant, and also on behalf of the respondent. It is in the context of those detailed arguments that the Court considers the response of the learned trial judge. The learned trial judge had clearly considered the responses, and had a discretion to exclude them, although otherwise admissible as being both relevant and probative. Although counsel for the applicant complains that the learned trial judge did not adequately indicate in what respect the responses were both relevant and probative, this Court does not consider such a criticism to be undermining of the decision given in exercise of the discretion, having regard to the extensive arguments made and the principles involved the rather short decision being made in direct response to the submissions, from which the basis for the decision is clear.
On the merits, it is undoubtedly the case that such answers are prejudicial. It is equally clear from the case law that the courts have recognised and acknowledged that in a prosecution, much of the evidence will be prejudicial. Indeed, it might even be said, without serious contradiction, that a great deal of material, given the nature of crimes and trials, will be prejudicial to an accused. That is why, in essence, principles have been established for the specific purpose of protecting an accused from an unfair trial when the evidence sought to be adduced, even if prejudicial, must in an appropriate case, be measured or balanced against its probative value so as to ensure that prejudicial material, unfairly outweighing its probative value, cannot be admitted.
The Court is satisfied that in the present case the responses were probative. The questions were not, as is contended on behalf of the applicant, directed towards eliciting the victim’s state of mind, but rather what the applicant himself thought was the victim’s state of mind, that is, his own state of mind. Although the responses were also prejudicial, they were not so prejudicial as to outweigh their probative value. The exercise by the learned trial judge, therefore, in concluding that the answers were both relevant and probative, when assessed and measured against the principles outlined to him and the arguments made, are clearly indicative of the judicial and careful exercise by the trial judge of the discretion vested in him.
In the circumstances, the application for leave, based on the admission of responses to questions posed during interviews of the applicant, cannot succeed.
For the foregoing reasons the application for leave to appeal on the basis of the two extant grounds is refused.