BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Irish Court of Criminal Appeal |
||
|
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Raymond Casey & Anthony Casey [2004] IECCA 49 (14 December 2004) URL: http://www.bailii.org/ie/cases/IECCA/2004/C49.html Cite as: [2004] IECCA 49 |
||
[New search] [Help]
|
Judgment Title: D.P.P.-v- Raymond Casey & Anthony Casey Composition of Court: Mc Guinness J., Herbert J., Peart J. Judgment by: Mc Guinness J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||
- 42 - COURT OF CRIMINAL APPEAL No. 4/02 and 5/02 McGuinness J. Herbert J. Peart J. THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) .v. RAYMOND CASEY AND ANTHONY CASEY Judgment of the Court delivered on the 14th day of December 2004 by McGuinness J. This is an application for leave to appeal against conviction by both applicants. The applicants bear the same surname but are not related. Raymond Casey and Anthony Casey were charged with the murder of Noel Pyper at Newenham Street, Limerick, on 12th August 1997. Both applicants pleaded not guilty. Following a trial lasting twenty days in the Central Criminal Court between 28th November 2001 and 8th January 2002 before Carney J. and a jury, both applicants were found guilty of murder by the unanimous verdict of the jury in each case and were sentenced to life imprisonment. Leave to appeal was refused by the court. Both applicants seek leave to appeal this refusal. This court has treated the application for leave to appeal as the appeal. In his application for leave to appeal, which was dated the 9th January 2002, the first named applicant set out the following grounds of appeal:
3. That the learned trial judge erred in law in admitting into evidence of (sic) fingerprints of the appellant taken by members of An Garda Siochana in circumstances where no proper or lawful authority existed for the taking of such prints. 4. That the learned trial judge erred in law in admitting into evidence Garda statements relating to palm prints in blood in circumstances where no scientific or other evidence existed to establish that the substance in question was blood. 5. The appellant was kept in segregation, solitary confinement and denied access to his papers throughout his trial and as such was not in a position to properly brief his lawyers and so was denied his constitutional right to a fair trial. 6. The appellant’s lawyers were court appointed by the learned trial judge four days prior to the commencement of the trial thus denying the appellant’s time to properly brief his lawyers thus denying the appellant’s constitutional right to a fair trial. 7. That in all the circumstances the conviction of the appellant is unsafe.” During the period of over two years which elapsed between the filing of the notice of appeal and the hearing before this court on the 28th July 2004 a number of adjournments were granted, some at least arising from applications by the first named applicant concerning amendments to his grounds of appeal and alterations to his legal representation. In the event the first named applicant relied on grounds 1, 3, 4 and 7 as set out above. Counsel for the first named applicant also raised a number of other matters concerning interviews of the first named applicant carried out by members of An Garda Siochana and statements made by the first named applicant which were put into evidence at the trial. Reference to these matters will be made later in this judgment. The second named applicant’s grounds of appeal were as follows:
(b) The learned trial judge erred in law or in a mixed question of law and fact and/or in the exercise of his discretion in ruling the statements of the applicant admissible in circumstances where conversations had taken place between the appellant and the Gardai in the absence of a legal guardian where there was a legal requirement for such a guardian pursuant to Article 13(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana stations) Regulations, 1987;
3. The learned trial judge erred in law or in a mixed question of law and fact in failing to charge the jury adequately or at all regarding section 7(2) of the Criminal Law Act 1977.” The Evidence at the Trial The deceased in this case, Noel Pyper, lived in an apartment at 49 Henry Street, Limerick. He was aged 48 years at the time of his death. Noel Pyper was a barman employed in Noel’s Bar which is situated in Catherine Street, Limerick. The owner of the bar, Noel O’Neill, left Mr Pyper alone there at 12.15 a.m. on the 12th August 1997. Mr Pyper was in charge of the cash when the public house was closed and at the time it was his practice to take the cash home with him. After Mr Pyper’s death the money from the bar was never found and it seems clear that Mr Pyper was robbed of the money at the time of his murder. A number of witnesses testified to the movements of Noel Pyper after he left Noel’s Bar. He was seen on Roche’s Street and later near the Augustinian Church on O’Connell Street. Mr Pyper was alone at the time. Video recording evidence showed that Mr Pyper went to a takeaway on O’Connell Street called the Chicken Hut where he purchased a takeaway snack meal. He left there at 12.44 a.m. His body was found at 8.30 a.m. the following morning in a laneway off Newenham Street by a delivery man, Gerard Moloney, and he was later identified as the deceased by his employer, Mr O’Neill. The place where his body was found is known locally as Lonergan’s Lane, off Newenham Street, and is about a nine minute walk from the Chicken Hut. Mr Pyper’s body was found partially concealed between two wheeled rubbish bins at the end of this lane. At the time of the finding of the body Detective Garda Murphy found keys just inside the mouth of the laneway which were later identified as Noel Pyper’s keys to his flat and to Noel’s Bar. Evidence was given by a taxi driver, Tom McGrath, who saw three men and one woman and another man a short distance away at the mouth of the laneway at about 1 a.m. A forensic examination was carried out by the Gardai at the scene of the crime. Physical evidence indicated that the fatal attack started at the mouth of the laneway. Evidence describing the laneway was given by Detective Garda Brooks. He described the lane as being thirty three metres long and indicated that there were two doors from the lane into South’s licensed premises – one ten metres from the roadway and the other thirty one metres from the roadway. The deceased’s trousers were slightly pulled down on his hips revealing marks on his lower back through which there were directional drag lines. His head was covered in blood. His shirt was missing three buttons, two of which were found in the laneway. It was noticed that there was blood at 3.2 metres in from the road. About ten metres into the laneway the ground was heavily stained with blood. On the wall at this point at a height of 1.4 metres Detective Garda Brooks saw what appeared to be a palm print in blood. A front tooth was found in the centre of the lane and another tooth near No. 2 Newenham Street. There was a blood smear trail in the centre of the laneway leading towards the wheeled bins at the end. Detective Garda Brooks gave as his opinion that the assault took place at the entrance of the lane and that there was a further violent assault opposite the first side door into South’s licensed premises. There was also evidence of a further assault at the point where the body was dumped concealed behind the wheeled bins. Photographs which were produced in evidence showed Mr Pyper’s body where it was found. They also showed a takeaway snack box from the Chicken Hut which was thrown under his body. The State’s case was that Mr Pyper was set upon shortly after he left the Chicken Hut while on his way home to his flat in Henry Street. The State Pathologist, Dr. Harbison, arrived at the scene at 4.20 p.m. on the 12th August and he observed blood stain marks and in particular a finger print on the wall of South’s Bar and slash marks on the wall. He noticed drag marks in the deceased’s blood. In his evidence Dr. Harbison described the deceased as having severe head injuries. His nasal bones were fractured and both lips were severely swollen and bruised with two penetrating lacerations. He had two black eyes and fractures of both cheek bones. His liver was torn. Dr. Harbison summarised his expert opinion by stating that death was caused by inhalation of blood due to multiple facial and mouth injuries including fractures of the lower jaw and cheek bones consistent with multiple blows or kicks to the face. Dr. Harbison’s opinion was that the facial injuries were due to kicks based on the shape of markings on the face. At the time of his death Noel Pyper also suffered from cancer of the larynx and the tongue. The prosecution’s case against Raymond Casey, the first named applicant, relied on the video recording of his presence at the Chicken Hut, at the same time as Noel Pyper and leaving fourteen seconds after him without making a purchase. It relied on the identification of the palm print in the lane as being that of Raymond Casey. It also relied upon two unsigned statements and six unsigned memoranda of interviews carried out with Raymond Casey by members of An Garda, all dated 26th August 1997, and a further unsigned statement dated 14th August 1997. In his earlier interviews the first named applicant asserted that he had called to a takeaway called Krank’s Corner on the night in question and had asserted that he had returned to his home by in or about 12.40 a.m. The video recording evidence showed his presence at the Chicken Hut in or around that time. During the course of the trial in voir dire evidence given in the absence of the jury the first named applicant made a number of allegations against members of the Gárda concerning violent behaviour at the time of his arrest and during his questioning, in regard to the taking of his finger and palm prints and in regard to the falsification or concoction of the statements attributed to him in the course of his interviews. The learned trial judge having heard the voir dire evidence of the first named applicant and of the members of an Gárda concerned dismissed all the allegations and ruled that the evidence of the first named applicant’s statements and the memoranda of interviews was admissible. Immediately before the close of the case for the prosecution senior counsel for the defence, Mr Phelan, applied to the learned trial judge for a ruling that the prosecution call as a witness Mr Dean Casey, who had been listed as a witness in the Book of Evidence served on the first named applicant. On 6th November 2001 a few days before the trial of the applicants was due to commence the Chief State Solicitor wrote to Mr John Devane, solicitor for the first named applicant, and Mr Ted McCarthy, solicitor for the second named applicant, as follows: “I am advised to inform you that we neither intend to call, nor tender, Mr Dean Casey, as a witness on behalf of the prosecution, and that we will endeavour to procure his attendance, pursuant to the witness order, at the trial, as his name appears, in the list of witnesses to the Book of Evidence, herein;” The first named applicant did not receive this letter until the 13th November 2001. He replied to the Chief State Solicitor requesting that Dean Casey should be available at the trial and asked that the Chief State Solicitor provide him with a full list of Dean Casey’s previous convictions and all outstanding charges and all warrants and that these be forwarded to him as soon as possible. Mr Dean Casey is a cousin of the second named applicant, Mr Anthony Casey, and it was accepted that he had spent considerable time in the company of the second named applicant during the night of 11th and the early hours of the 12th August 1997 in the centre of Limerick City. A considerable number of video recordings from a number of premises in the city was produced in evidence at the trial showing the two men in company with each other. Dean Casey had been interviewed by the Gardai and had made a number of statements concerning his movements on that night. His statements gave inconsistent accounts of events relevant to the death of Mr Pyper. Some of his statements were inculpatory of Anthony Casey. On the 7th October 1999 Dean Casey went to the offices of John Devane, solicitor, (who was not at that time acting as solicitor for the first named applicant) and swore an affidavit to the effect that Anthony Casey had said to him “I could be after killing the man” meaning Noel Pyper and that another man was charged with the murder who did not do it. On the 11th April 2000 Dean Casey made a statement to the Gárda in which he asserted that he swore the affidavit of 9th October 1999 because he had been threatened at gun point by Raymond Casey that he would blow his head off unless he made this affidavit and stood up in court and said that it was true. He said that he had made the affidavit because he was intimidated. The first named applicant was then arrested and detained pursuant to section 4 of the Criminal Justice Act 1984. He was subsequently charged with the offence of intimidation of a witness contrary to section 41 of the Criminal Justice Act 1984. This charge came on for hearing before the District Court. The first named applicant, represented himself. Following an adjournment the prosecution entered a nolle prosequi without further explanation. At the trial of the applicants senior counsel for the prosecution submitted to the learned trial judge that the prosecution had a discretion as to whether or not they should call Mr Dean Casey or indeed any witness. He informed the court that the reason that the prosecution had decided not to call Mr Dean Casey was that in the opinion of the prosecution he was a wholly unreliable witness. The prosecution also refused to tender Mr Casey for cross-examination, giving the same reasons. However the prosecution offered to make Mr Dean Casey available to the defence so that he could be called as a witness for the defence. Following submissions by counsel on both sides the learned trial judge held that the prosecution was not obliged to produce Mr Dean Casey as a prosecution witness or to tender him for cross-examination. However he directed that Dean Casey should be made available to the defence to be a witness for the defence if the defence wished to call him. At the request of counsel for the defence the judge granted an adjournment to enable Mr Phelan to have a consultation with Dean Casey prior to calling him as a witness. In the event Dean Casey refused to speak to the defence team and on application made to him the trial judge ruled that he had no power to order him to do so. The first named applicant gave evidence in his own defence denying any involvement in the murder of Mr Pyper. In addition he called two witnesses who gave evidence that they had not seen him in the area of any relevant time. It appears from the transcript that the first named applicant had endeavoured to serve witness summonses on a number of other witnesses, including alibi witnesses, but in the event none of these witnesses appeared at the trial. In particular the court was informed that an alibi witness, Mr Kieran Keane, was on his way to the court from Heuston Station, but in the event Mr Keane did not give evidence. The prosecution case against the second named applicant, Anthony Casey, relied for the most part on admissions made by him in three cautioned statements which he made following questioning by the Gardai on the 26th August 1997. Anthony Casey was under seventeen years of age at the time of his questioning in the Garda Station and was therefore accompanied on all occasions by his care worker Mr Bernard Gloster, a child care worker employed by the Mid Western Health Board. The second named applicant had been in the care of the Mid-Western Health Board since he was in or about eight years of age. At the time of the trial Mr Gloster was director of Residential Care Services in the Mid-Western Health Board area. In August 1997 he was project manager for one specific residential service, a youth service for homeless adolescent boys. This service provided a residential hostel in Limerick. The second named applicant resided in this hostel except for a couple of brief periods when he resided in flat accommodation. At the time of the murder of Mr Pyper he was residing in a flat at O’Curry Street in Limerick. The admissibility of the second named applicant’s statements was challenged at the trial on grounds similar to those set out above in his grounds of appeal. The learned trial judge heard lengthy voir dire evidence and submissions from senior counsel for the defence. The learned trial judge ruled that all three statements were admissible having been taken in the presence of Mr Gloster and having been signed by him and by the applicant. Mr Gloster gave evidence that nothing untoward had taken place on the part of the Gardai during the taking of the statements. At the trial evidence was also given by Clare Taylor regarding an admission made to her by the second named applicant that he had stood on the head of a man on the night in question. There was also video evidence produced by the Gardai showing the second named applicant in the company of Dean Casey at various locations in the centre of the city of Limerick during the night of the 11th and early hours of 12th August, 1997. The second named applicant did not give evidence nor did he call witnesses in his defence. The First Named Applicant’s Grounds of Appeal The first and indeed the principal ground of appeal put forward by the first named applicant is that the trial judge erred in law in not ordering that the prosecution either call Dean Casey as a witness or tender him for cross examination by the defence. As an alternative it is submitted that the trial judge himself should have called Dean Casey in evidence and permitted him to be cross examined by both prosecution and defence. Senior Counsel for the first named applicant, Mr O’Carroll, stressed that Dean Casey was not alone a witness included in the book of evidence but was also closely involved in the events of the night of 11th and early hours of 12th August, 1997 which, the prosecution alleged, had led to the death of Mr Pyper. The video evidence had clearly shown that Dean Casey was in the company of Anthony Casey at relevant times and in relevant areas of the city. Dean Casey had been arrested and questioned as had the two applicants. He had made a number of statements some of which indicated his own involvement in the events of the night. He had given an account of his movements which made no mention of Raymond Casey. While he accepted that he had been in the company of Anthony Casey at the relevant times the nearest that he came to implicating Raymond Casey was to say that he could not recall whether he was present. On 7th October 1999 Dean Casey had sworn a full affidavit exculpating the first named applicant. On 11th April 2000 he made a cautioned statement in which he informed the Gardai that he had been intimidated into making this affidavit by the first named applicant. Yet when the first named applicant was charged with that intimidation Dean Casey had not given evidence against him and nolle prosequi had been entered. Only a few days before the trial was due to begin had the defence been informed that Dean Casey was not to be called as a witness. The prosecution had given as a reason for this course of action that they regarded Dean Casey as an unreliable witness. Mr O’Carroll accepted that the prosecution had a discretion as to the witnesses they called but submitted that in the interests of justice the court should have ensured that Dean Casey should have been tendered for cross examination. Mr O’Carroll referred to the arguments put forward at the trial by Mr Phelan, counsel for the defence, (book P pages 12-22). He referred to the case of Joseph Francis Oliva, a judgment of the English Court of Criminal Appeal reported at [1965] Vol. 49 Crim. App. Reps. 298 which dealt with the duty of the prosecution with regard to calling witnesses. At p. 309 of his judgment in that case Lord Chief Justice Parker stated:- “Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment, that there is a wide discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering them for cross examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness.” Mr O’Carroll submitted that in the instant case the interests of justice were not met by the decision of the learned trial judge to refuse the application made by the defence and to order merely that the witness in question was to be made available to the defence to call themselves if they so wished. In the event Dean Casey had refused to speak to the defence team and it was understandable that Mr Phelan had not wished to call him as a witness for the defence. Mr O’Carroll submitted that he learned trial judge was over-hasty in refusing to entertain the defence application concerning Dean Casey and that he had been influenced by his own view of the conduct of the first named applicant concerning changes in his legal representation in the run up to the trial. The course of these changes had largely been dictated by circumstances and were not by any means all attributable to the first named applicant himself. Mr O’Carroll submitted that in all the circumstances the learned trial judge should have held an inquiry into the motives which lay behind the prosecution’s decision not to call Dean Casey and, if necessary, should have used his inherent power to call the witness himself. Senior Counsel for the Director, Mr O’Connell, stated that all the statements of Dean Casey were served well in advance of the trial on the first named applicant. A statement was also included in the book of evidence. Before the trial by letters dated 6th November, 2001 the solicitors for both accused were written to and informed that the prosecution neither intended to call nor tender Dean Casey as a witness on behalf of the prosecution but undertaking that the prosecution would endeavour to procure his attendance pursuant to the Witness Order at the trial. The reason the prosecution decided not to call Dean Casey was because it regarded him as an unreliable witness. At the end of the prosecution case counsel for Raymond Casey had made an application to Carney J. for an order compelling the prosecution to call or tender Dean Casey. The learned trial judge declined but said that he was prepared to render any assistance that might be necessary to the defence to obtain the production of Dean Casey. Mr O’Connell submitted that in a criminal trial the prosecution had discretion as to who it called to give evidence. The discretion in this case was exercised properly and fairly against calling or tendering Dean Casey. Notice of the prosecution’s intention was given in writing to the solicitors for both Raymond Casey and Anthony Casey. Dean Casey was available but the first named applicant did not call or attempt to call him as a witness at the trial and could not now be heard to complain about his absence. Mr O’Connell also referred to the case of Joseph Francis Oliva [May 17 & 18 1965] CCA (Eng.) (1965) 49 C.A.R. 293. In his judgment of that case Lord Chief Justice Parker had surveyed the previous law on the discretion of the prosecution as to the calling of witnesses. At page 308 of the Report he quoted Lord Roche in the Privy Council case of Seneviratne v R [1936] 3 All ER 36 who had said at p. 48 of that judgment: “Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of consideration of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence.” Mr O’Connell referred to a second Privy Council case cited in the Oliva decision, that of Adel Muhammed el Dabbah v Attorney General for Palestine [1944] AC 156. Referring to that case, Lord Chief Justice Parker pointed out that Lord Thankerton who gave the opinion of the Board had adhered to the view that the discretion, in the first instance at any rate, rested with the prosecution, and then went further and said (at p. 168): “And the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.” Mr O’Connell also submitted that the discretion of the prosecution in regard to the calling of witnesses had also been confirmed in this jurisdiction in the case of Paul O’Regan v Director of Public Prosecutions and Judge Uinsinn McGruairc (High Court, Mc Guinness J. unreported 9th July, 1988) where the court accepted at page 11 of the judgment that the principles set out in the Oliva case were correct. This decision was subsequently upheld by the Supreme Court [2000] 1 ILRM 68. The ruling of the learned trial judge on the defence application concerning Dean Casey is at Book P at pages 23-24 as follows:- “I have regard to the entire history of this case which is fully set out in the transcript. There is such a background that I am not going to attempt to go into it I will just refer to the entire background and conduct of these proceedings up to today’s date, which is set out in the transcript of proceedings up to the present time. I am not prepared to entertain the application sprung at this juncture. What I am prepared to do is render any assistance that might be necessary for the production of Mr Dean Casey as a defence witness and if he can’t be found or there is any difficulty in relation to that it won’t stop the trial which is proceeding to a conclusion but Mr Phelan will be given any assistance in that area which he needs in relation to Mr Casey or indeed in relation to the 20 persons in respect of whom he has caused witness summons to be issued.” As has already been noted, Dean Casey was brought to the court and an adjournment was granted to enable counsel for the defence to interview him. In the event he refused to speak to the defence representatives and he was not called as a defence witness. The various statements made by Dean Casey to the Gárda Síochána, his interviews by the members of the Gárda, his affidavit sworn on the 9th October, 1999 and his subsequent statement alleging intimidation by the first named applicant made to the Gárda on 11th April 2000 have been made available to this court as, indeed, they were to the defence prior to the trial. Dean Casey’s accounts of the events of the night of 11th and early hours of the 12th August, 1997 are self-contradictory. In addition his part in the aborted prosecution of the first named applicant for the offence of intimidation is somewhat obscure. It may perhaps be inferred that he was unwilling to confirm his statements in oral evidence in the District Court. It does not seem to this court, however, that these matters are sufficient to establish what is described in the Oliva case (above cited) as “some oblique motive” on the part of the prosecution in deciding not to call him as a witness. The prosecution gave as a reason that they saw him as a wholly unreliable witness. On the material which is before the court this is a tenable assessment of the position. The position in the instant case is, in fact, somewhat similar to that which arose in the Oliva case [1965] Vol 49 Crim App Reps 298. In that case the accused, Mr Oliva, was convicted of wounding one Brian Rutledge with intent to do him grievous bodily harm. Both the victim, Mr Rutledge, and also a man named Hampden gave evidence at the committal proceedings and their names appeared on the back of the indictment. At a later stage, both Rutledge and Hampden made statements withdrawing their original evidence against the accused. At the trial the prosecution refused to call either Rutledge or Hampden. In his judgment Lord Chief Justice Parker surveyed a number of earlier cases and reached the conclusion in regard to the principles to be applied which has been already quoted in this judgment. In the event in that case the Lord Chief Justice held that the prosecution had exercised their discretion rightly in refusing to call the witnesses since they were “abundantly entitled to form the view that, to say the very least, these two witnesses were wholly unreliable and that the interests of justice would not be furthered by calling such witnesses.” It should also be noted that in the passage quoted above the learned Lord Chief Justice held that the judge at the trial may, in his discretion, “invite” the prosecution to call a particular witness. At no stage did he suggest that the judge of trial may require the prosecution to call a particular witness. The situation which arose in the O’Regan (above cited) case was very different, dealing as it did with the summary trial of a drunken driving case in the District Court. Nevertheless in that case both the High Court and the Supreme Court accepted the principles set out in the Oliva case. In his ruling in the instant case Carney J. referred to the entire history of the case and it is clear from a number of remarks which he made during the course of the trial that he was anxious to avoid any undue delay in the proceedings. Nevertheless it does not appear that in refusing the defence’s application the learned trial judge departed from the principles set out in Oliva’s case. It seems to the court that the interests of fairness and justice were met by the learned trial judge’s determination to render any assistance necessary to the defence to obtain the presence of Dean Casey in court and by his granting to defence counsel a proper opportunity to interview Dean Casey prior to deciding whether or not to call him as a defence witness (Book P p.42). This ground of appeal therefore fails. The next ground of appeal put forward by the applicant is that the learned trial judge erred in law in admitting into evidence fingerprints of the appellant taken by members of An Garda Síochána in circumstances where no proper or lawful authority existed for the taking of such prints. In written submissions on behalf of the first named applicant it is conceded that he had agreed to give his fingerprints on a form C58 to Detective Sergeant Brendan Howley shortly after his arrival at Henry Street Garda Station. However, he alleges that he was subsequently requested to give a further sample of his prints and, when he refused to comply, he was unlawfully assaulted and during the course of this assault his palm prints were unlawfully taken against his will. In oral submissions to this court Senior Counsel for the first named applicant drew attention to the cross examination of Detective Garda Doherty in connection with the palm print found on the wall of the laneway in which Mr Pyper’s body was found (Book G p.37). Detective Garda Doherty was asked how it was established at an early stage that the print found in the laneway belonged to Mr Casey. Detective Garda Doherty replied that Mr Casey’s prints were on record from a previous occasion. Mr O’Carroll submitted that in the circumstances there was an onus on the prosecution to show that a previously obtained palm print of the first named applicant had not been retained by the Gardai for a period longer than six months. If the palm prints had been retained for a longer period this was contrary to the provisions of the Criminal Justice Act, 1984 and any resulting detention of the first named applicant was unlawful. Senior Counsel for the Director of Public Prosecutions submitted that in his ruling on the taking of the applicant’s fingerprints at Book H p.78 the learned trial judge held as a fact that the finger and palm prints of the first named applicant had been lawfully obtained. The order to fingerprint the accused was made by Superintendent P.J. Gavin on 26th August, 1997 and his evidence appeared at Book G p.59 and 102. The said order was attached to the written submissions to this court made by the Director of Public Prosecutions. The order was made pursuant to the powers conferred by s.6(1)(c) and (d) and subsection 2 of the Criminal Justice Act, 1984. The first named applicant had signed the fingerprint form C58. As far as the reference to earlier finger and palm prints was concerned, no issue on this had been raised at the trial nor was it specifically included in the grounds of appeal. In any case the six month limit under the 1984 Act on the retention of fingerprints applied only where the person concerned had not been convicted of the offence with which he was charged. The first named applicant had over 50 previous convictions and therefore there was nothing unlawful in the retention of his earlier fingerprints. The learned trial judge held as a matter of fact that the members of An Gárda did not act illegally in taking the finger and palm prints of the first named applicant. In his ruling he clearly stressed the importance of the safeguards provided under the Criminal Justice Act, 1984 for the rights of persons in custody. At Book H p.79 the learned judge stated:- “A part of the safeguards [under the 1984 Act] which were imposed were that certain functions could only be performed pursuant to the authority of a person of superintendent rank. Under s.6 of the Criminal Justice Act, 1984, the rank and file Garda has power to demand the name and address and to search an accused person or cause him to be searched but the next two powers to photograph or cause him to be photographed or to take or cause to be taken his fingerprints and palm prints can only be exercised on the authority of a member of superintendent rank. … So when I saw the document which was prepared by the superintendent’s clerk and signed by superintendent Gavin, it seemed to me that I mightn’t necessarily be satisfied in this case to the standard of beyond reasonable doubt that the superintendent wasn’t merely regarding that as an empty formula. And, as I say, the statute does not provide for empty formulae. However, I am satisfied that I must take all the evidence into account. The document is not a necessary ingredient of the power. It is merely evidence that the power has been exercised. The evidence in this case is that the palm print found was a vital feature of the investigation from the very start. An operational inspector gave evidence that he requested the power of the superintendent. The superintendent gave evidence of the basis on which he gave it. The member in charge gave evidence of the circumstances in which it was given and it is recorded in the custody record. Accordingly, I find that the power was validly exercised and what the superintendent chose to call a clerical error is merely a piece of sloppiness inappropriate to the solemnity of a murder investigation.” This court accepts that the ruling of the learned trial judge on this matter was entirely proper. The fingerprints and palm prints of the first named applicant were obtained under proper statutory authority following correct procedures. As far as the issue of the reference to fingerprints taken at an earlier date is concerned, this matter was never put in issue at the trial and does not form part of the grounds of appeal. This ground of appeal therefore also fails. In a further ground of appeal it is submitted by the first named applicant that the trial judge erred in law in admitting evidence relating to palm prints in blood in circumstances where it is said that no scientific or other evidence existed to establish that the substance in question was blood. During the course of the trial evidence was given by Detective Garda Brooks, the scenes of crime examiner, who noted that the palm print was in blood above a blood spattered border. Professor Harbison also gave evidence of having seen the palm mark on the wall during his examination in the afternoon. Photographic evidence of the palm print was also provided to the court and to the jury during the time of the trial. It seems to this court that there is no substance to this ground of appeal. The importance of the evidence was to establish that the palm print was that of the first named applicant. The jury had before it all necessary evidence and exhibits. It also had before it the statement made by the first named applicant to the Gardai on 26th August, 1997 that he was “never down that lane in my life” and “never in that lane in my life” and his later contradictory admission that “in the lane we went to do Pyper…I must have put my hand on the wall when we were doing him”. It was for the jury to decide whether to accept or reject any of the evidence that was before them. This ground of appeal also fails. Finally, in both written and oral submissions to this court Mr O’Carroll on behalf of the first named applicant raises the question of conflicting versions of the various interviews which occurred between the first named applicant and the various members of An Gárda concerning the death of Noel Pyper. In particular the first named applicant alleges that the Gárda encouraged him, or tricked him, into saying that he was in Kranks Corner rather than in the Chicken Hut. These allegations were denied by the members of An Gárda concerned. In the first place this submission does not form any part of the grounds of appeal which were filed on behalf of the first named applicant. In the second place the learned trial judge heard lengthy voir dire evidence on the issue of the admissibility of the first named applicant’s statements and memoranda of question and answer interviews. This included evidence by the first named applicant himself during which he made a large number of allegations of improper behaviour on the part of the members of An Gárda. Having considered the evidence before him the learned trial judge ruled that the statements and interviews in question were admissible. In the course of his ruling the judge stated (Book H. page 81):- “Where there is a conflict between the accused and the Prosecution witnesses, I accept the evidence of the Prosecution’s witnesses and I very much take into account that matters such as the alleged pointing of a gun at him were not reported to his solicitor. That matters such as the kicking down of a door and intimidatory treatment when he was on his own, apparently, responsible for the children, were not reported to the solicitor.
There was abundant evidence on which the learned trial judge could base these rulings and this court will not go behind them. The appeal of the first named applicant will therefore be dismissed. The second named applicant’s grounds of appeal The second named applicant’s grounds of appeal deal with two main areas, firstly the admissibility of the three cautioned statements made by the second named applicant in the Garda Station on the 26th August 1997 and secondly the alleged inadequacy of the learned trial judge’s charge to the jury as to the possibility of a verdict of manslaughter rather than murder. In regard to the question of admissibility senior counsel for the second named applicant, Mr O’Hanlon, accepted that Anthony Casey’s statements had been taken under caution and in the presence of his care worker Bernard Gloster, an appropriate adult. Mr O’Hanlon’s criticisms were directed towards the failure by the interviewing members of An Gárda to record in detail and contemporaneously any conversation or interchange between them and the second named applicant during a period of fifteen minutes between 10.20 and 10.35 a.m. on the day in question when Mr Gloster, at express insistence of the second named applicant, was absent from the interview room, and also during the time after the second named applicant made his second statement and before he embarked on making his third statement. In cross examination both during the voir dire on the issue of inadmissibility and later during the course of the trial before the jury the relevant members of An Gárda admitted that they had made no contemporaneous note covering either of these periods. It appeared that for the purpose of compiling their witness statements for the Book of Evidence (which they did in or about one month after the 26th August 1997) they had refreshed their memory as regards the timing of interviews, etc, from the Custody Record kept by the member in charge at the Garda Station. Both Gardai gave oral evidence that the only conversation which took place during the fifteen minute absence of Mr Gloster from the interview room at the applicant’s request was a repeated effort by the Gardai to convince the second named applicant that they could not interview him alone without the presence of an appropriate adult, whether that be Mr Gloster or some one else. In addition the Garda evidence was that the second named applicant had told them that he was ashamed to speak about what he had done in front of Mr Gloster, who had been very good to him over the past ten years. Following this conversation the second named applicant eventually agreed that Mr Gloster should return to the interview room which he did. As far as the second period was concerned the Garda evidence was that it was put to the second named applicant that there were inconsistencies or contradictions between his first statement and his second statement and he was asked to clarify these. The second named applicant replied that he would make a true statement and proceeded to make his third statement. Mr O’Hanlon submitted that the admitted failure to make proper records of these two conversations was in breach both of the Judge’s Rules and of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (Statutory Instrument 119 of 1987). In addition he submitted that no conversation at all should have taken place between the members of An Gárda and the second named applicant in the absence of Mr Gloster. As a result of these breaches of both the Judge’s Rules and the applicable Regulations, in particular in a situation where the members of An Gárda were questioning a young person, the learned trial judge should have ruled all three of the second named applicant’s statements inadmissible. In addition Mr O’Hanlon submitted that the fact the Gárda admitted to having told the second named applicant that they were dissatisfied with the contents of his first statement and that there were conflicts between the first and second statement, which resulted in his making the third statement, constituted oppressive conduct. He submitted that in circumstances where there was a question that these statements were obtained by threat, promise, oppression or inducement on the part of the members of An Gárda conducting the interviews, the statements should not have gone to the jury. Senior counsel for the Director, Mr O’Connell, said that it was accepted that the second named applicant was cautioned in accordance with the Judge’s Rules before each of the three statements he had made. Each statement was taken from him in the presence of Mr Gloster who had been responsible for the care of the second named applicant since 1993. He directed attention to Mr Gloster’s evidence both on the voir dire and at the trial where he gave evidence that no impropriety had taken place and that he had been satisfied to sign the statements that had been made by the second named applicant. (Book L. page 101/102). Mr O’Connell said that the essence of the second named applicant’s argument for exclusion of all three statements was based on Detective Garda Hogan’s alleged failure to record the applicant’s answer that he would make a true statement when he was asked to clarify the contradictions between the first and second statements made by him (Book L. page 74). Mr O’Connell submitted that there was an air of utter unreality in this argument. As regards the statements the Judge’s Rules were in fact scrupulously adhered to. The second named applicant suffered no disadvantage whatsoever from the alleged omission of a record of the brief exchange between the members of An Gárda and the second named applicant between the making of the second and third statements. In the event oral evidence of what was said was given before the jury. It was patently obvious from the evidence of Mr Gloster that the applicant was not subjected to any oppressive or threatening conduct on the part of the Gardai or to any improper inducements. With regard to the absence of Mr Gloster from the interview room for fifteen minutes the evidence before the court was that there was no questioning of the second named applicant in regard to the murder of Mr Pyper during that period. The second named applicant did not give evidence either on the voir dire or at the trial and there was no evidence before the court to contradict the evidence of the two members of An Gárda as to what happened and what was said. At the trial the then senior counsel for the defence, Mr Sammon, candidly accepted that the question whether or not the applicant was interrogated in the absence of Mr Gloster was exclusively a question of fact to be decided by the learned trial judge. Rule VII of the Judge’s Rules states: “A prisoner making a voluntary statement must not be cross-examined and no question should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he my be questioned sufficiently to clear up the point.” The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 at section 12(11) dealing with interviews states:
(1) be made in the notebook of the member concerned or in a separate document and shall be as complete as practicable. (2) If it is practicable to do so and the member concerned is of opinion that it will not interfere with the conduct of the interview, be made while the interview is in progress or otherwise as soon as practicable afterwards and; (3) Be signed by the member making it and include the date and time of signature.
“Except with the authority of the member in charge, an arrested person who is under the age of seventeen years shall not be questioned in relation to an offence or asked to make a written statement unless a parent or guardian is present…” It was conceded by Detective Garda Hogan in cross-examination that there had been a breach of the Judge’s Rules and of the Regulations in the failure to record the linking conversation material between the statements in his notebook or separately from the custody record. The learned trial judge had full evidence before him as to what occurred and in the event the judge, while holding that the statements themselves were admissible, ruled that, as there had been a breach of the rules and regulations in the failure to record linking conversational material, the evidence of that material was inadmissible. Subsequently, however, on the application of senior counsel for the defence, this evidence was in fact given before the jury, as senior counsel for the defence considered that it was disadvantageous to the second named applicant to omit this evidence. The learned trial judge’s ruling on the issue of admissibility is contained at Book M page 82 to 83. It contains rulings in regard to various allegations of misconduct against the Gardai which do not form part of the grounds of appeal. The learned judge then stated as follows:
In the case of the People (At the Suit of the Director of Public Prosecutions) v Michael J. Darcy (unreported 29th July 1997) this court dealt with the situation where there had been a breach of the custody regulations in that the requirement that not more than two Gardai should participate in the interviewing at any one time was not observed. The judgment of the court was delivered by Keane J. (as he then was). At page 25 of the judgment it is stated that the requirement of not more than two Gardai was not observed. The judgment continues:
It appears to this court that the situation in the instant case is analogous to the situation which obtained in D.P.P. v Darcy. There were technical breaches of the Judge’s Rules and of the Regulations but the substance of the applicant’s rights was preserved. This court is the more persuaded of this fact on account of the clear evidence of Mr Gloster who was not only a responsible adult but also a person acknowledged to have cared for the welfare of Mr Anthony Casey for a period of ten years. The court notes also that all the statements themselves were made in accordance with the Judge’s Rules and with the Custody Regulations. During the course of the trial judge’s charge to the jury he set out clearly and helpfully a method whereby the jury might assess the three statements of the second named applicant (Book T pages 77/78). He suggested that there were a number of steps that the jury should go through and in doing so they should act judicially. They should ask themselves in relation to a statement firstly whether this statement had been made or whether it was a fabrication by the police. Secondly they should ask themselves what did the statement mean and thirdly they should ask themselves whether the statement was true. He concluded;
2. What does it mean? 3. Is it true? 4. Well, there are bits in conflict, is there any part I can accept having regard to that? If so which part do I accept?” It is the view of this court that the decision of the learned trial judge to admit the three statements of the second named applicant was correct. As he pointed out in his charge it was for the jury to accept or reject the content of any or all of the statements. These grounds of appeal therefore fail. The remaining ground of appeal of the second named applicant arises from the learned trial judge’s charge to the jury. The applicant submits that the learned trial judge erred in failing to charge the jury adequately as to a possible verdict of manslaughter and as to how such a verdict might be reached in circumstances where a killing took place in the course of a joint enterprise. In the course of his charge to the jury, Carney J. at Book T page 8 stated:
It seems to me that on the facts and on the run of this case here, we are dealing with murder or nothing. If, for any reason, you were to find it was a case of manslaughter, you would write into the issue paper not guilty of murder, but guilty of manslaughter. As I say, Mr Foreman, members of the jury, it seems to me the way this case has run and having regard to its facts, that what we are dealing with here is a case of guilty of murder or guilty of nothing.” At Book T page 122, in closing his charge to the jury Carney said:
At an earlier stage in his charge the learned trial judge addressed the jury on the concept of joint enterprise or joint venture (Book S page 24):
Senior counsel for the second named applicant submitted that other than direct the jury that it was possible to find the accused guilty of manslaughter, the learned trial judge did not specify the ingredients of the offence of manslaughter and, while a joint enterprise with his co-accused is described in the evidence, the judge did not charge the jury as to the possibility of manslaughter arising from a joint enterprise in respect of robbery. In his charge the judge effectively directed the jury not to consider the issue of manslaughter. Mr O’Hanlon referred to the evidence against the second named applicant contained in his own statements and in particular in his third and final statement. The statements indicated that the motive for the joint enterprise was robbery – a mugging to get “a few quid”, preferably from someone who was sufficiently drunk not to recognise his or her assailant. Mr O’Hanlon argued that the scope of this enterprise did not necessarily include the inflicting of “serious injury” – the ingredient of intent necessary for murder. If the jury accepted Anthony Casey’s account of his involvement as explained in his third statement, he himself was not involved in the primary assault on Mr Pyper but became involved only in moving the body of Mr Pyper to hide it between the wheeled bins. It would thus be open to the jury to find that the striking and kicking of Mr Pyper’s head was outside the scope of the enterprise into which Anthony Casey had entered and to which he had agreed. If that was accepted the second named applicant would be guilty of manslaughter, not murder, and the trial judge should have so charged the jury. In making this submission Mr O’Hanlon relied in particular on the case of Attorney General v Patrick Joseph Ryan (Frewen Volume 1 page 304) and the English case of R v Lovesey [1970] 1 Q.B. 352. In that case it was held at page 356 by Widgery L.J. :
In the alternative Mr O’Hanlon submitted that if the second named applicant’s involvement was confined to helping to conceal the body of Mr Pyper the learned trial judge should have charged the jury regarding section 7(2) of the Criminal Law Act 1997. The Criminal Law Act 1997 section 7 provides:
(2) Where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence. (3) If upon the trial or indictment of an arrestable offence, it is proved that the offence charged, or some other offence of which the accused might on that charge be found guilty, was committed, but it is not proved that the accused was guilty of it, the accused may be found guilty of an offence under subsection (2) of which it is proved that he or she is guilty in relation to the offence charged, or that other offence.” Mr O’Hanlon submitted that the second named applicant’s action in assisting in hiding the body of Mr Pyper amounted to impeding the apprehension or prosecution of his co-accused. Both these matters had been raised at the trial by Mr Sammon, senior counsel for the defence, by way of requisitions to the learned trial judge at the conclusion of his charge. Having heard submissions from the defence and from the prosecution, the learned trial judge refused to recharge the jury. Senior counsel for the Director submitted that the learned trial judge’s charge to the jury was perfectly adequate in his definition of what constituted manslaughter – an unlawful killing with an intent to cause some injury less than serious injury. The jury was entitled to accept or reject the second named applicant’s differing accounts of his involvement in the killing of Mr Pyper as contained in all three of his statements. The second named applicant himself had stated in his first statement of 26th August 1997:
Even if the jury accepted his account in the third statement there was clear forensic evidence from both Dr. Harbison and the scenes of crime examiner that the assaults on Mr Pyper were not limited to what occurred at the mouth of the laneway but continued after he was moved to the area of the wheeled bins. The injuries suffered by the unfortunate Mr Pyper were vividly described by Dr. Harbison in his evidence and have been summarised in the introductory part of this judgment. The evidence of Detective Garda Brooks was that Mr Pyper’s shirt buttons, teeth and blood were found in a number of locations in the lane including the area where his body was found. There was ample evidence to enable the jury to find that, in the words of Lord Widgery, “the common design included the use of whatever force was necessary to achieve the robber’s object (or to permit escape without fear of subsequent identification), even if this involved killing, or the infliction of grievous bodily harm on the victim.” The question of liability in a joint enterprise was considered by this court in the case of Director of Public Prosecutions v Michael Doohan [2002] 4 I.R. 463. In that case the appellant had hired another man to beat up a neighbour with a view to breaking his arms or legs and putting him in hospital. In the event the hired attacker used a gun and shot the victim in the leg as a result of which he died. The appellant argued that the use of the gun and the subsequent death of the victim were not part of the joint enterprise. This court held that where two persons embarked on a joint enterprise, each was liable for the acts done in pursuance of that joint enterprise, including liability for unusual consequences if they arose from the agreed joint enterprise; but if one of the adventurers went beyond that which had been tacitdly agreed as part of the common enterprise, his co-adventurer was not liable for the consequences of the unauthorised act. It was for the trial court to determine whether what was done was part of the joint enterprise and whether what the co-accused did fell within it. It was also held that in crime which involved a joint enterprise it was sufficient mens rea for murder if the participants intended to cause serious injury. It was no defence to a charge for murder for the accused to say that he had no knowledge that the death would occur. D.P.P. v Doohan was a case which had been tried before the Special Criminal Court but the principles set out therein apply equally to a trial before a judge and jury. In ruling on the requisitions made by counsel for the defence in the instant case the learned trial judge stated that having heard submissions he had come to the view that having regard to the facts of the case the submissions made by the defence both as regards the possible verdict of manslaughter and as regards section 7 of the 1997 Act were “unreal”. This court considers that the learned trial judge was correct in so holding. There was ample evidence before the jury to enable them to decide that the second named applicant had the requisite intent to cause serious injury to Mr Pyper and thus to be guilty of murder. These grounds of appeal also fail and the court will dismiss the second named applicant’s appeal. The court accordingly dismisses the appeals of both applicants. Raymond Casey and Anthony Casey2 | ||||||||||
