Court of Criminal Appeal dismisses appeal and retrial request due to inadmissible hearsay evidence from son.

COURT OF CRIMINAL APPEAL

272/2008

Finnegan J.

Budd J.

O’Keeffe J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

and

RAYMOND GARTLAND

APPLICANT

Judgment of the Court delivered on the 29th day of October 2010 by Finnegan J.

The applicant was found guilty of an offence contrary to section 15A of the Misuse of Drugs Act 1977, possession of a controlled drug

with a value of €13,000 or more for the purposes of sale or supply. He was sentenced to a term of imprisonment of twelve years. In

addition he was found guilty on three counts of possession of a controlled drug contrary to section 27 of the Misuse of Drugs Act

1977 and sentenced to terms of imprisonment of two years, two years and one year. All the terms of imprisonment are to run

concurrently. He seeks leave to appeal his conviction. The circumstances of the offences in brief are as follows.

The applicant was observed by Gardai alight from a car go to the passenger side and remove a black refuse sack containing

something boxed shaped the corners of which were apparent at the bottom of the bag. He went to the rear of 94 Barron Park,

Clonmel, Co. Tipperary. On a search of the premises the Gardai found a bag which they identified as the same bag and which

contained the drugs.

On this motion the applicant seeks the following reliefs:-

An order giving liberty to the applicant to introduce fresh evidence pertaining to the matters at issue at the trial.

An order directing a retrial.

An order admitting the applicant to bail pending retrial.

The application is grounded on the affidavit of the applicant’s solicitor John M. Joy. The relevant passage from that affidavit is as

follows:-

“(11) I say that I attended at Clonmel Garda Station and was advised by Nigel Gartland that while he was in custody on

another matter he had during the course of his custody admitted placing the plastic bag containing the drugs in the

garage premises and further advised that his father was not in any way involved in the placing of the drugs within the

garage premises and that he had made a statement to that effect.”

In short then the applicant seeks to have admitted into evidence and to rely on a statement by his son, Nigel Gartland, to the Gardai

in which he claims to be responsible for the drugs found on the premises the subject matter of the charges against the applicant.

Section 33 of the Courts of Justice Act 1924 as inserted by section 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997

provides as follows:-

“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of

Criminal Appeal on -

a record of the proceedings of the trial and on a transcript thereof verified by the judge before

whom the case was tried, and

where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of

this subsection does not reflect what took place during the trial, a report by him as to the

defects which he considers such record or transcript, as the case may be, contains

with power to the Court to hear new or additional evidence, and to refer any matter for a report by the said judge.”

The principles upon which the court will act on an application to the court to hear new or additional evidence are clearly set out in a

number of decisions of this court: see The People (Director of Public Prosecutions) v George Redmond, unreported, Court of

Criminal Appeal 28th July 2004, (2004) I.E. C.C.A. 22 and The People (Director of Public Prosecutions) v Willoughby, unreported,

Court of Criminal Appeal 18th February 2005. However in the light of what is said hereafter it is unnecessary to consider those

principles.

The applicant seeks liberty to introduce evidence in the form of the statement made by Nigel Gartland to Gardai at Clonmel Garda

Station while he was in custody on another matter. He had, it is deposed, in the course of his custody admitted placing the plastic

bag containing the drugs in the premises and which drugs were found in the course of the search of the premises. He made a

statement to that effect.

The question to be answered is this: are there any circumstances in which the statement by Nigel Gartland is admissible in evidence?

The answer to that question must be an emphatic no. The statement is hearsay. The definition of hearsay in Cross on Evidence is as

follows:

“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence

of any fact asserted.”

This definition was approved of by the House of Lords in R. v Sharpe [1988] 1 W.L.R. 7. Again Phipson in the 15th edition defines

hearsay as follows:-

“Oral or written statements made by persons who are not parties and who are not called as witnesses are inadmissible

to prove the truth of the matter stated.”

The facts in R. v Lawless and Lawson [2003] E.W.C.A. Crim. 271 were as follows. Both appellants were convicted of murder. The

victim had been acquitted of indecent assault on an eight year old girl but following his acquittal he was harassed, the windows of his

home were smashed, graffiti were daubed on his walls and intruders broke into his home and attacked him. The circumstances of the

appellants’ offence were that on the 9th February 2001 accelerant was poured through the letter box of the victim’s home and ignited

and as a result he died from smoke inhalation. Mr Lawson’s girlfriend, Chantelle Day, was charged with conspiracy and Lawless and

Lawson charged with murder. Chantelle Day was convicted and sentenced. While in a young offenders institute she admitted to a

fellow inmate that she was involved in pouring the accelerant into the home of the deceased, yet Mr Lawson was taking all of the

blame. She repeated this to female prison officers. She said that Mr Lawless wasn’t even there.

Lawless obtained statements from those to whom Ms Day spoke and sought leave to call the makers of the statements to whom Ms

Day had spoken. Leave was refused as their evidence would be hearsay.

In the course of the judgment of the court Kennedy L.J. said:-

“…but it is, we think, helpful to start by considering whether the evidence now sought to be relied upon could ever have

been admissible in the trial from which this appeal lies.”

The court cited passages from the judgment of the House of Lords in R v Blastland [1986] A.C. 41. Lord Bridge at page 54 said:-

“The rationale of excluding it (a statement by a third party admitting responsibility) as inadmissible, rooted as it is in the

system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial

mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen

or heard and which has not been subject to any test of reliability by cross-examination.”

Again:-

“The statements which it was sought to prove that Mark made, indicating his knowledge of the murder, provided no

rational basis whatever on which the jury could be invited to draw an inference as to the source of that knowledge. To

do so would have been mere speculation. Thus, to allow this evidence of what Mark said to be put before the jury as

supporting the conclusion that he, rather than the appellant, may have been the murderer seems to me, in the light of

the principles on which the inclusion of hearsay evidence depends, to be open to still graver objections than allowing

evidence that he had directly admitted the crime. If the latter is excluded as evidence to which no probative value can

safely be attributed, the same objection applies a fortiori to the admission of the former.”

The court fully agrees with the dicta of Lord Bridge in R v Blastland and of the decision in R v Lawless and Lawson not to admit

into evidence as hearsay the statements made by Ms Day. A written confession or admission is subject to the same objection as a

verbal one. In short on an application for leave to adduce new evidence the evidence sought to be admitted must in the first instance

be admissible. That is not the case here. A written and signed statement of confession by the applicant’s son is subject to all the

infirmities that affect hearsay. It is not evidence tendered viva voce in court, the jury would have no opportunity to observe the

demeanour of the author and he is not susceptible to cross-examination.

The application for leave to adduce additional evidence must be refused. For the like reason that the statement sought to be relied

upon is inadmissible on appeal it is inadmissible on any retrial. Accordingly the court refuses the applicant the reliefs sought at 1 and 2

in the notice of motion. As no retrial can be directed the issue of bail pending retrial does not arise.