Court of Criminal Appeal dismisses appeals against murder convictions, upholding jury verdicts on weight of evidence.

THE COURT OF CRIMINAL APPEAL

Record No. 193/05 and 194/05

Geoghegan J.

O’Donovan J..

de Valera J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR

OF PUBLIC PROSECUTIONS)

Prosecutor/Respondent

and

BRIAN KENNY AND THOMAS HINCHON

Applicants

JUDGMENT of the Court delivered by Mr. Justice Geoghegan on the 20th day of October 2006

These two applications for leave to appeal against convictions before judge and jury in the Central Criminal Court have been

heard by this court which duly reserved judgment. On the same day, motions seeking leave to rely on additional grounds of

appeal were also before this court. Counsel for the Director of Public Prosecutions opposed those motions in particular on

the basis of the decision of the Supreme Court in The People (D.P.P.) v. Cronin [2006] IESC 9 (unreported, Supreme

Court, 3rd March, 2006). On a de bene esse basis, this court heard arguments on the additional grounds but postponed its

decision as to their admissibility. The court’s decision on this matter will be set out at the end of this judgment.

The respective original applications for leave to appeal are based on a number of distinctive grounds. To facilitate

understanding of how they arise it is intended to give a short summary of the circumstances of these prosecutions.

Both Brian Kenny and Thomas Hinchon the above-named applicants were charged with the murder of one Jonathan

O’Reilly on the 17th April, 2004. Brian Kenny was also charged with threatening to kill a Mr. Joseph O’Callaghan on the

same date and with possession of a firearm and ammunition on the 10th May, 2004. Thomas Hinchon was charged with

threatening to kill Joseph O’Callaghan on the 17th April, 2004. It is convenient and appropriate to adopt the following short

summary of the prosecution case in respect of each applicant as set out in the written submissions on behalf of the

applicants whilst accepting the additional clarifications contained in the written submissions of the respondent. The so called

“short summary of the prosecution case” as far as it is confined to that case reads as follows:

“The prosecution case was that on the 17th April 2004 the applicant was the driver of a motorbike

on which his co-accused was a pillion passenger and that the co-accused shot and killed Jonathan

O’Reilly who was a passenger in a vehicle parked outside Cloverhill Prison. The prosecution

evidence against the applicant was predominantly the testimony of one Joseph O’Callaghan, who,

on that testimony, was an accomplice to these offences, was based on the Witness Protection

Programme and was granted immunity in respect of his role in these offences, which said immunity

was disclosed to the Defence shortly before commencement of the trial. He was further granted

immunity in respect of unrelated drug dealing offences which was confirmed to the Defence during

the course of the trial.

In short, the evidence of Joseph O’Callaghan was that both accused, shortly after the killing,

arrived at the home of (Brian Kenny) where he, Joseph O’Callaghan was present and that they

admitted to him (by way of open discussion of the crime) that they had carried out the shooting. His

evidence was that both accused threatened to kill him if he told anyone. His evidence further stated

that he was given responsibility for hiding the murder weapon and for destruction of clothing used

during the alleged commission of the crime. Joseph O’Callaghan further provided evidence as to

the movements of both accused before and after the killing on that day.”

The rest of the “summary” deals with the trial judge’s directions relating to corroboration of the evidence of Joseph

O’Callaghan. Although Joseph O’Callaghan was not going to be prosecuted and although his immunity from prosecution was

unconditional, nevertheless, the trial judge correctly took the view that, in law, he could be regarded as an accomplice and

that, therefore, the usual warning should be given. Having regard in particular to the judgment of the Supreme Court

delivered by Denham J. in D.P.P. v. Gilligan [2005] IESC 78 (unreported, Supreme Court, 23rd November, 2005) the trial

judge again correctly, considered that the warning was necessary not merely by reason of Mr. O’Callaghan being an

accomplice but also by reason of his being the subject of a witness protection programme. These matters will be returned to

later on in the judgment. At this stage, it is sufficient to indicate that the trial judge considered that certain aspects of the

evidence were capable of amounting to corroboration of the testimony of Mr. O’Callaghan. These related to a revolver

found in a field, items of burnt clothing found in a pot-bellied stove, a motor-bike that was found at the home of Brian

Kenny and evidence of movements tracked from the records of mobile phones.

It would probably be fair to say that the main thrust of the two applications for leave to appeal relates to the judge’s

directions as to corroboration but as already indicated, there are quite distinct grounds of appeal and it is now appropriate

that they should be dealt with in the order in which they appear in the respective notices of appeal.

Ground No. 1

This related to the following bit of evidence on day 7 of what transpired to be a twenty-one day trial. The questions and

answers arose in the course of the direct evidence of Joseph O’Callaghan and were as follows:

“Q. And did Thomas Hinchon ever stay in Brian Kenny’s house?

A. Yeah.

Q. And on the occasions when he stayed would he stay for one day or would he stay for more than one day?

A. It depends. He had warrants out for him, so he stayed a few times.”

The applicants applied to the trial judge (Peart J.) to discharge the jury by reason of this evidence. It was suggested that the

evidence was so prejudicial and so fundamental as to irreparably damage the respective applicants’ ability to secure a fair

trial. It was further suggested that the applicants were no longer afforded the presumption of innocence and good character.

The applicants have relied on a number of authorities but especially on certain dicta of Keane C.J. in D.P.P. v.

McGartland (unreported judgment, 20th January 2003). The former Chief Justice said the following:

“Where that was what one might call a ‘live issue’ in the case, it could only have been, in the view

of the court, damaging to the appellant, that evidence was adduced which could lead the jury to the

inference that this was a person who was known to the police, a familiar enough phrase in everyday

parlance, not known in any social context the jury were entitled to assume, that known as someone

who, at the very least, was suspected of dealing in drugs and known to the police previously, apart

altogether from this particular matter that led to the raid on the house that evening because she

used the expression ‘known to her for sometime’.”

In the circumstances, the conviction in that case was quashed. The respondent however in supporting the decision of the

trial judge not to discharge the jury on that account relies on another passage of Keane C.J. in the same judgment. That

passage reads as follows:

“It is, of course, the case that where evidence, either by design or accidentally, is given to the jury

which is prejudicial to the accused while being of no probative value, it is always a matter for the

discretion of the trial judge as to whether he will discharge the jury or not. This court would

naturally give considerable weight to the exercise by the trial judge of his discretion in this regard

and certainly would not lightly interfere with the trial judge in the exercise of his discretion. It

would certainly be going too far … to say that in every case, where evidence emerges which might

suggest that the accused either has a previous criminal record or is at all events known to the

police as somebody suspected of criminal behaviour, the jury is to be automatically discharged as a

result of the evidence having been given, that is certainly not the law: the trial judge must, in the

exercise of his discretion, weigh all the circumstances that have arisen in the particular case.”

As pointed out by counsel for the Director of Public Prosecutions, the crucial distinction between these cases and the

McGartland case is that the alleged prejudicial remark did not relate to a “live issue”. In the McGartland case, there was

an issue as to whether possession was for the purpose of sale or supply and, therefore, the impugned evidence was clearly

more prejudicial than probative in that it depicted the accused as a person suspected of being a drug dealer by the gardaí. In

these cases, what is involved is a throwaway remark which the trial judge did not even notice at the time as having any

conceivable significance. Furthermore, it emerged later during the cross-examination of Mr. O’Callaghan and as a direct

consequence of the questioning that Mr. O’Callaghan had sold drugs for Brian Kenny.

The trial judge has a discretion as was clearly indicated by Keane C.J. The judge quite properly considered whether the

impugned remark interfered with the presumption of innocence or would render the trial unfair. He formed the view that it

did not and in the view of this court it was well within his discretion to do so. Accordingly, leave to appeal on this ground

must be refused.

Ground No. 2

This ground related to the fact that counts 3 and 4 on the indictment relating to Brian Kenny were not the subject matter of

a return for trial but were inserted as counts in the indictment by the Director of Public Prosecutions. The District Court

would have had no jurisdiction to return such charges for trial in the ordinary courts without a direction from the Director of

Public Prosecutions under section 45(2) of the Offences against the State Act, 1939. That subsection reads as follows:

“(2) Whenever a person is brought before a justice of the District Court charged with a scheduled offence

which is an indictable offence and such justice receives informations in relation to such charge and sends

such a person forward for trial on such charge, such justice shall (unless the Attorney-General otherwise

directs) send such person forward in custody or, with the consent of the Attorney-General, at liberty on bail

for trial by a Special Criminal Court on such charge.”

For the “Attorney-General” there must, of course, now be read “the Director of Public Prosecutions”.

The two counts related to possession of firearm offences and were undoubtedly “scheduled offences” for the purposes of

the Offences against the State Act, 1939. It is equally clear, however, that the provisions of section 45(2) of that Act have

no application whatsoever to counts added by the Director of Public Prosecutions. For that to be the case there would have

to be a specific statutory provision. It would seem reasonably obvious why there is not in fact such a provision because if

the Director of Public Prosecutions himself is adding these counts in the context of a trial before the ordinary courts it is

clear that he is satisfied that it is appropriate that they be tried by the ordinary courts. Accordingly, the court can see no

basis for this ground of application for leave to appeal.

Grounds 3, 4, 5 and 10

In the case of each application, these grounds of application (though differing to some extent in wording in relation to each

of the four counts) has in their respective written submissions merged those grounds into one which reads as follows:

“That the learned trial judge misdirected himself in Law or in fact or in a mixed question of law

and in fact, in failing to adequately warn of the particular dangers of convicting upon the evidence

of Joseph O’Callaghan, a particular category of accomplice who not only enjoyed the protected

status under the Witness Protection Programme but, whom it was common case had been granted

immunity, not only in respect of his accomplice role, but also immunity in respect of wholly

unrelated and serious drug charges in advance of his giving evidence and failing to particularise

the undoubted difficulties facing the jury in assessing whether to accept his evidence (upon which

the prosecution’s case was wholly or substantially grounded) and failed to tailor the warning to the

facts of this particular case.

That the learned trial judge erred and misdirected himself in law or in fact or in a mixed question

of Law and fact in directing the jury as to what, in his view, could amount to corroboration having

regard to all the evidence of the case.”

The court is satisfied that the learned trial judge made no misdirection either in law or in fact in relation to corroboration or

the required warning in respect thereof.

The law relating both to the meaning of corroboration and the warnings that must be given as to the dangers of convicting

without it in respect of the evidence of witnesses who are either accomplices or are the subject of a witness protection

programme or both has been fully reviewed recently by the Supreme Court in the judgment of Denham J. with which the

other members of the court concurred in DPP v. Gilligan cited above. It is neither necessary nor desirable to review again

the case law in relation to these matters. There are just one or two points which are important to reiterate. First of all, as is

clear from the judgment of the Supreme Court there is nothing complicated in the concept of corroboration. Denham J. cited

with approval the short modern restatement of the law by Lord Reid in his speech in the House of Lords in DPP v.

Kilbourne [1973] AC 729 at 750.

“There is nothing technical in the idea of corroboration. When in ordinary affairs of life one is

doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in

with other statements or circumstances relating to the particular matter; the better it fits in, the

more one is inclined to believe it.”

The learned trial judge, following the authorities and in particular the law as now enunciated and clarified by Denham J.,

correctly warned the jury that Mr. O’Callaghan could be regarded as an accomplice and that in those circumstances it was

dangerous to rely on his evidence without corroboration but that they were nevertheless entitled to do so. The judge further

correctly explained that the same principle applied to a witness such as Mr. O’Callaghan who was the subject of a witness

protection programme. He then, as he was obliged to do, directed the jury as to what evidence was capable of constituting

corroboration and explained that it was for the jury to decide whether it did in fact constitute corroboration. This latter

distinction is important because of course the judge included in the matters which he considered were capable of constituting

corroboration the fact that a motor-bike was found at the home of Brian Kenny notwithstanding that there were conflicting

descriptions given by eye-witnesses as to the colour of the motor-bike used in the killing. Provided however that there was

some consistency between the colour of the motor-bike found at the home of Brian Kenny and at least one of the

descriptions given by eye-witnesses in respect of the motor-bike used in the killing it was capable of constituting

corroboration. The judge made no error in that respect. It was for the jury then to decide whether they could believe any

particular eye-witness having regard to inconsistencies.

The learned trial judge did not make a distinction between the nature of the warning that had to be given in respect of

accomplice evidence and the nature of the warning which had to be given in respect of evidence given under a witness

protection scheme. In not making any such distinction, the learned judge was acting correctly in the view of the court. In so

far as there is any suggestion made that because of particular wording used by Denham J. in parts of her judgment,

circumstantial evidence cannot constitute sufficient corroboration of testimony coming from a witness under a witness

protection scheme, the court wholly rejects that submission. It is perfectly clear from the general tenor of the judgment of

Denham J. that she was approving of the approach to corroboration adopted by the Special Criminal Court in the Gilligan

case.

It has been submitted on behalf of the applicants that even if the learned trial judge was correct in his list of matters which

were capable of amounting to corroboration of the evidence of Joseph O’Callaghan, the judge should have gone on to tell

the jury of “the tenuous nature of those pieces of evidence”. The court cannot agree with this submission either. If, as this

court believes, the learned trial judge did not make an error in his lists of possible items of corroboration then issues as to the

strength or weakness of such possible corroboration were, peculiarly, matters for the jury and not for the judge.

This court must, accordingly, reject these grounds of application.

Ground No. 6

This ground as formulated in both notices of application for leave to appeal reads as follows:

“Whilst the learned trial judge in summarising the evidence, was extremely specific in respect of all

evidence in chief called on behalf of the prosecution, he only summarised in general terms cross-

examination of those witnesses on behalf of the applicant herein, such that there is a risk that his

charge in that regard predisposed the jury to a particular outcome against the applicant.”

It is important in every criminal trial that the trial judge in his charge gives a sufficient summary to the jury of the defence

case. That does not mean however that he is in any way obliged to analyse every aspect of the evidence. If there is a

perceived defect in the charge it is the duty of counsel to make the appropriate requisition. As is pointed out on behalf of the

Director of Public Prosecutions in this case that was not done in respect of the complaints made under ground No. 6.

Having regard to the clear restatement of the law in this regard both by the Supreme Court and in this court in The People

(DPP) v. Cronin cited above, this court agrees with the Director of Public Prosecutions that it ought not to entertain the

complaints against the trial judge made under ground No. 6 and does not consider that there is any fundamental miscarriage

of justice in refusing to do so. The court is satisfied that the learned trial judge gave an adequate charge in respect of the

defence case of each applicant.

This ground must, therefore, also be rejected.

Grounds No. 7 and No. 8

Under these grounds, it is alleged that the verdict of the jury was perverse, against the weight of evidence and having regard

to all the circumstances of the case including alleged totality of conflicting evidence adduced by the prosecution. In the

submissions on behalf of the Director of Public Prosecutions, it was pointed out the lengthy consideration given by the jury

to the verdict. But even if that were not so, it is clear that there was evidence that justified the verdicts and it was peculiarly

a matter for the jury to resolve any conflicts or inconsistencies. These grounds must clearly be rejected.

Ground No. 9

This ground also relates to weight of the evidence and the suggestion that having regard to inconsistencies in the evidence of

Joseph O’Callaghan, the conviction is unsafe. This court cannot accept that submission. These were matters peculiarly

assigned to the jury to determine. Ground 9 cannot be accepted.

Additional grounds

The court has carefully considered whether it ought to permit the additional grounds and has come to the conclusion that it

ought not to do so. If the Cronin case is to have any meaning and effect, this would seem to be clearly a case where the

application should be refused. Arguments based on the Convention did not feature at the trial and the other ground was one

which could quite obviously have been included in the original notice of application if it was thought there was any validity

in it. The motion seeking the additional grounds must, therefore, be refused.

In each case, the applications for leave to appeal will be refused.

DPP v. Kenny & anor.