Court of Criminal Appeal dismisses appeal regarding jury directions on circumstantial evidence and fingerprint identification.

THE COURT OF CRIMINAL APPEAL

CCA No. 12/2010

O’Donnell J.

Moriarty J.

Hanna J.

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Brian Rattigan

Applicant

Judgment of the Court delivered on the 19th of February, 2013, by O’Donnell J.

1 On the 17th December 2009 after a trial lasting 20 days the Applicant herein Brian Rattigan, was convicted by majority verdict of

the murder of Declan Gavin, in the early morning of the 25th of August 2001 at Crumlin Road, Dublin 12.

2 The history of this case, like the trial itself, is long and tortuous. The applicant was first charged in September 2003. However the

charge was struck out because of a delay in serving the book of evidence. It was March 2005 before he was rearrested and served

with the book of evidence and returned for trial. Judicial review proceedings were then commenced seeking to have the trial

prohibited on grounds of delay and prejudice. Ultimately however, those reliefs were refused by a decision of the Supreme Court in

May 2008, which placed particular emphasis on the fact that the applicant’s hand print was found at the crime scene, for which no

explanation had been proffered. A trial commenced in early 2009 which resulted in a disagreement. A second trial was commenced in

November of that year which resulted in the conviction the subject matter of this appeal.

3 The trial was both difficult and contentious. It was punctuated by applications for orders to compel the attendance of witnesses

who did not attend in response to subpoena, and consequent applications for committal for contempt of court. Still other witnesses,

though attending the trial, either refused to testify, or to testify in accordance with their statements, and a number of applications

and legal arguments ensued. However by the close of the evidence (which in effect meant the prosecution case, since the defence

did not go into evidence), a picture had emerged which allows the issues in this appeal to be understood.

4 In the early morning of Saturday the 25th of August, there was a crowd of young people at the Crumlin Shopping Centre. One of

the few places open and lit was the Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the

occupants of a Nissan Micra car. The car was described variously as grey, gold, or “that imported beige colour”. It was recognised as

a Japanese import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over

his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by the assailant

described by the witnesses as the “knife man”. The door of the Abrakebabra was closed by the security guard. The knife man tried to

push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away. Declan Gavin was bleeding profusely from

his wounds. There was blood on the floor throughout the restaurant. Significantly there was also blood on the window of the

Abrakebabra premises. That blood and the blood in the restaurant was positively identified as that of Declan Gavin. A sample taken

from the window 58 inches from the floor was positively identified as the blood of Declan Gavin. A palm print, in what was described

as “a blood like substance”, was found on the window some 62 inches from the floor and close to the substance found to be the

blood of the deceased. The palm print was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was

developed on the door, was also identified as that of Brian Rattigan.

5 Brian Rattigan was arrested the following week, and interviewed by the gardaí. A number of the interviews were recorded in writing,

which the accused refused to sign. Evidence of the content of the interviews was given at the trial subject to some editing by

agreement between the parties and further to directions given by the trial judge. In those interviews Brian Rattigan was truculent,

evasive and maintained that he had not been near Crumlin Shopping Centre for a considerable time. When asked where he was on the

Friday night and Saturday morning of the 24th and 25th of August he replied, “I can’t remember where I was, but I wasn’t near that

place”. He added that he had not been there for months, probably four months. He said he could not remember where he was that

night. When asked whether he was at home at his brother Joey’s birthday party (as had been suggested by another witness), he

replied that he couldn’t remember where he was. At one point he said he was “riding a married woman. Her fella is away. I was with

her. I won’t tell ye who she is”. This somewhat incongruous piece of chivalry was expressed in coarse terms and more importantly was

completely lacking in any supporting detail. When it was put to him that his sister had said that he was at the party he replied “I was

there but I never left the place all night”. He was asked did he know Joey Redmond. He replied that he was his brother Joey’s “best

mate” and that “he was always in my gaff.” On another occasion however he said he barely knew Joey Redmond. When asked “Can

you tell us the truth” he replied “I won’t admit, youse prove it, that’s your job.” He was asked if he had been in a car Nissan Micra 93

D 38843 with Shane Maloney and Joey Redmond on the morning of the 25th of August 2001 and replied that he couldn’t remember. In

other interviews he repeated in crude terms his claim to have been having an affair with a married woman and when asked whether he

was with his lady friend on the night Declan Gavin was stabbed he replied, “no that’s not what I said”.

6 It was established in evidence that the entire glass window in Abrakebabra had been replaced only the previous week, on the 16th

of August 2001, and it was regularly washed three times a week, and therefore was probably washed as recently as the Wednesday

before the stabbing. Further evidence was given that a gold/beige Nissan Micra was found burning in the Cookstown Industrial Estate

at 9:15 am on the morning of the 25th of August, shortly after the stabbing. Previously on the 20th of August, Garda O’Shaughnessy

had stopped this car, then being driven by Shane Maloney and containing Joey Rattigan, the brother of the accused, both associates

of Brian Rattigan, and to whom reference had been made in the evidence.

7 Eighteen grounds of appeal were set out in the notice of appeal but on the hearing of this appeal counsel focused on three principal

grounds. First, an argument that section 16 of the Criminal Justice Act 2006 which permits the use in evidence of witness statements

was not applicable, in this case. Second, a related argument that even if the section were applicable, it ought not to be applied in

the particular facts of this case, and third, a challenge to the concluding comments of the trial judge in his charge to the jury.

Section 16, Criminal Justice Act 2006

8 Section 16 of the Criminal Justice Act 2006 permits witness statements to be admitted as evidence at a trial in certain

circumstances, normally where a witness while available for cross-examination, refuses to give evidence or denies making the

statement or gives evidence which is materially inconsistent with it. The section provides as follows:

“16 (1) Where a person has been sent forward for trial for an arrestable offence, a statement relevant to the proceedings

made by a witness (in this section referred to as “the statement”) may, with the leave of the court, be admitted in

accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-

examination—

(a) refuses to give evidence,

(b) denies making the statement, or

(c) gives evidence which is materially inconsistent with it.

(2) The statement may be so admitted if—

(a) the witness confirms, or it is proved, that he or she made it,

(b) the court is satisfied—

(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,

(ii) that it was made voluntarily, and

(iii) that it is reliable,

and

(c) either—

(i) the statement was given on oath or affirmation or contains a statutory declaration by the witness to the

effect that the statement is true to the best of his or her knowledge or belief, or

(ii) the court is otherwise satisfied that when the statement was made the witness understood the

requirement to tell the truth.

(3) In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was videorecorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it

was made, there is other sufficient evidence in support of its reliability,

and shall also have regard to—

(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent

with the statement, or

(ii) where the witness denies making the statement, any evidence given in relation to the denial.

(4) The statement shall not be admitted in evidence under this section if the court is of opinion—

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused

or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so

admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.

(5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from

which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by

written statement) of the Act of 1984.”

9 This provision permits the introduction of the out of court statement of a witness which would otherwise be excluded as hearsay,

and is therefore one further statutory exception to the hearsay rule. Section 16 is consonant with developments in the common law

world. In some jurisdictions an exception to the hearsay rule was effected by case law and in others, as here, by statute. The

objective however, is the same. The most obvious circumstance in which a witness who has given a detailed witness statement might

nevertheless refuse to give evidence at the trial is when there has been interference with the witness, whether by way of

inducement or intimidation or otherwise, or where the witness has developed a reluctance to giving evidence without any direct

threat or inducement. The capacity of any legal system to compel the production of relevant testimony and real evidence is central

to its ability to perform the function of the administration of justice. Interference with witnesses is not just an ugly and insidious

crime which is by definition difficult to detect and punish, it is also fundamentally subversive of the administration of justice and its

capacity to provide a fair trial of a charge. A provision such as section 16 therefore provides a partial remedy for a real problem and in

doing so removes, or at least reduces, the incentive for anyone to seek to encourage a witness not to testify. While counsel for the

applicant argued that the Court should approach the section on the basis that it was a very powerful provision since a statement so

admitted could not be cross examined, this is a necessary consequence of the admission of any out of court statement under an

exception to the hearsay rule. Indeed, under section 16 the opposing party is in a somewhat better position since the witness must

be available for cross examination, and the opposing party can seek to exploit the witness’s uncertainty, or professed lack of memory,

if he or she thinks it desirable. That possibility is not available in other exceptions to the hearsay rule. The fact that evidence

admitted under the rule may be effective and even powerful in some cases, is not itself a reason to approach the section with any

scepticism.

10 The issue of the effect of section 16 arose in this case because in the immediate aftermath of the stabbing a number of witnesses

had given statements detailing the events leading up to the killing of Mr Gavin. By the time they came to give evidence at the trial

however the position had changed. While they could give precise evidence about the events of the night, when asked to describe the

stabbing or the knife man, they professed to have no memory whatsoever. The trial judge refused one prosecution application that a

statement of a witness be admitted under section 16 on the grounds that it was unnecessary but permitted statements of two other

witnesses to be admitted under the section. The significance of their evidence was that it showed that the perpetrator, after

stabbing Declan Gavin, had pursued him all the way to the door of the Abrakebabra premises. That evidence put the assailant at the

door of the premises on which the blood of the victim and the handprint of the applicant were found. While there was some argument

as to whether section 16 could be said to apply to a situation in which a witness had given some evidence and then professed a lack

of memory on other matters, this Court is satisfied that it can be said of the two relevant witnesses here that they had given

evidence which was materially inconsistent with their statements and therefore came within the terms of the statute, if it was

properly applicable in the case. The central issue raised therefore was whether the section was indeed applicable.

The First Issue: Retrospectivity

11 Counsel for the applicant pointed to the fact that section 16 only became law on the 1st of October 2006 and therefore long after

the events at Crumlin Shopping Centre, and as it happened, after the accused had been returned for trial. Counsel sought to rely on

the common law principle of interpretation that a statute is presumed not to act retrospectively unless the contrary intention is

clearly apparent. In Maxwell, Interpretation of Statutes, 12th edition (London; 1969) at p.215 the principle is stated as follows:

“Upon the presumption that the legislature does not intend what is unjust rests leaning against giving certain statutes a

retrospective operation. They are construed as operating only in cases or on facts which come into existence after the

statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English law that no

statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms

of the Act, or arises by necessary and distinct implication.”

Counsel also cited Bennion, Statutory Interpretation, 5th edition (Edinburgh; 2008) at p.315 to the effect that:

“Unless the contrary intention appears, an enactment is presumed not to be intended to have a retrospective

operation.”

Reliance was also placed on the following passage from the same work (p.316):

“The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a

particular act is likened to a floodlight switched on or off, and the general body of law to the circumambient air.

Clumsy though these images are, they should the inappropriateness of retrospective laws. If we do something

today, we feel that the law applying to it should be the law inforced today, not tomorrow’s backward adjustment of

it. Such, we believe, is the nature of law. ‘Those who have arranged their affairs in reliance with a decision which

has stood for many years should not find that their plans have been retrospectively upset.’” (citing in this respect

E.W.P. Ltd v. Moore [1992] Q.B. 460)

12 Dodd on Statutory Interpretation in Ireland (Dublin; 2008) proposes a distinction between retrospective and retroactive legislation,

defining a retrospective statute as one which “affects any vested rights acquired under existing law or creates a new obligation, or

imposes a new duty, or a tax a new disability in respect of matters already passed. Retroactive statutes are statutes dealing with

truly procedural and evidential matters.” What these different statements of a broad principle all have in common is that they

acknowledge that matters which are described as “procedural or evidential only” are not subject to the rule, or more accurately the

presumption. As explained by Bennion at p.320:

“Because a change made by the legislator in procedural provisions is expected to be for the general benefit of

litigants and others, it is presumed that it applies to pending as well as future proceedings. This presumption does

not operate where, on the facts of the instant case, to apply it would contravene the principle that persons should

not be penalised under a doubtful enactment.”

Here, the trial judge considered that there was no question of the injustice of penalising acts already committed against which the

presumption was directed and considered that the legislation was procedural and evidential. Accordingly, he permitted the statements

to be admitted under section 16.

13 The general question of the correct approach to laws said to act retroactively or retrospectively is undoubtedly a difficult one,

particularly because in the context of Irish law, the provisions of Article 15.5.1 of the Constitution specifically prohibit the declaration

of acts to be infringements of the law which were not so on the date of the commission. The core value underlying what is a

presumption at common law, has therefore received Constitutional expression in Ireland. It is also probably true that the nomenclature

is neither clear nor consistently applied either in the case law or in the relevant text books. Indeed the dictionary definitions of

“retrospective effect” and “retroactive” would suggest that in common speech they are almost synonyms. Nevertheless, the primary

meaning of the words come from different roots and it might have been preferable to apply “retrospective” to provisions which merely

look backwards and “retroactive” to those which not only look back but also purport to have an effect on past events and alter their

legal consequences. However no consistent use has emerged. Nor, with respect, is it clear that the sometimes difficult distinction

between procedural and evidential matters on the one hand, and substantive matters on the other, can be usefully illuminated by

seeking to apply to them the terms “retrospective” and “retroactive” respectively , although there may be a significant degree of

overlap between the concepts.

14 Recognising perhaps the difficulty that on its face the statute appears to be indeed a procedural or evidential matter, the

applicant sought to argue that there is no clear cut distinction between the concepts of substantive and procedural change, and it

was a matter of degree. Thus it was argued that “the more serious the right that is affected, the more reluctant the court should be

to categorise the legislation as merely procedural or evidential”. We are satisfied however that this is not a useful guide to the issues

in dispute here. Apart from the inherent vagueness and lack of predictability of such a test, there is no basis for allowing the nature

of a change to be determined by reference to its impact. Any change in the law, however apparently trivial, can be critical in a

particular case. Furthermore, the applicant has not identified the “right affected” here. Assuming any such right is that of an accused

person,(since any right of another person, such as a witness whose evidence is admitted, could not be invoked by the applicant ),

there is no obvious right to have evidence given (or more accurately not given) in any particular way or format. It is to be assumed

therefore that the right implicitly invoked is the right to a trial on a criminal charge in due course of law. But if that is the “right

affected”, and it is correct that the more serious the right affected the more any change should be categorised as substantive, then

it is hard to conceive of any circumstances in which a change in respect of the criminal law could be described as procedural or

evidential. If that was the case either as a matter of general principle or a consequence of the approach identified by the applicant,

then one might expect it to be much more clearly established both in the case law, and in the practice of legislative drafting, since

after all, the principle invoked by the applicant is a presumption of interpretation which can be displaced by the use of clear words.

Furthermore, even though a matter is characterised as procedural, it may in any particular case prove critical to the outcome but

that is no reason to avoid the distinction between procedural and evidential matters on the one hand and substantive matters on the

other. Accordingly the Court does not accept that the approach suggested is valid. It is perhaps true to say however, that the

categorisation of matters as procedural and evidential and not within the presumption, is itself a recognition that not all matters

which can be said to be retrospective, in any sense of the word, are offensive to justice, which, as the extract from Maxwell shows,

is at the heart of the presumption.

15 A number of matters may be observed about section 16 of the Criminal Justice Act 2006. First, it is itself a significant distance

from the concept of retroactive penalisation which underpins both the constitutional prohibition and the common law principle of

statutory interpretation. Furthermore on its face, the legislation acts prospectively. It only applies when at a trial, which necessarily

must occur after the coming into force of the Act, a witness refuses to give evidence or denies making a statement or gives evidence

which is materially inconsistent with the statement previously given. Until such an event occurs the Act is not triggered, or put in a

different way, the triggering event can only occur at some time in the future, and after the coming into force of the Act. Second, the

language of the section appears clear and unambiguous. On its face, and without recourse to any presumptions of interpretation, it

appears to apply to any such event which occurs after the coming into force of the Act. Third, notwithstanding the careful and

detailed argument made on behalf of the applicant in this case, it was not possible to draw the Court’s attention to any parallel

circumstance in which the presumption had been applied in respect of significant procedural changes in the administration of justice in

criminal matters. Fourth, since the principle relied on by the applicant was a presumption applicable to the interpretation of the

statute, it was necessary to proffer some interpretation of the words of the statute to accord with the asserted presumption.

Counsel had understandable difficulty in asserting how the provision was to be interpreted. Did it apply only to offences which

occurred after the coming into force of the Act? If not, did it apply only to statements made after the coming into force of the Act? A

further possibility, indeed the primary submission canvassed by counsel, was that it applied to trials in which the return for trial,

referred to in section 16, had occurred after the coming into force of that section. However, consideration of any of these

possibilities gave rise to so many implausible, illogical and haphazard results, that it would be very difficult to believe that such was

the intended interpretation of the section. If the Act only applies to offences alleged to have occurred after the coming into force of

the Act, then that would extend the rule much further than the fundamental ideal of the legal system posited by Bennion as

underlying the presumption against retrospectivity. No one could be said to have arranged their affairs in reliance on the rules for the

admissibility of evidence at the time at which an offence is committed. Furthermore, a statement made after the coming into force of

the Act would not be capable of being admitted in relation to one offence, even though a statement made on the same day could be

subject to section 16 in relation to another offence. On the other hand, if the Act only applies to statements made after the coming

into force of the Act or where a return for trial has been made after the coming into force of the Act, then a different series of

illogicalities and haphazard consequences would follow. The person accused of an offence can have no expectation as to the nature

of the evidence which may be adduced against him or her, or the method by which it is adduced. He or she may have no knowledge

of the date upon which the statement is made. The maker of the statement, for his or her part, is not affected by the circumstances

in which that statement may itself be admissible in evidence, such a person makes a statement in the expectation that they

themselves will give that evidence. Furthermore if retrospectivity is the concern, there could be no sense in applying the provision

only to statements made after the coming into force of the Act. By definition, such statements made immediately after the coming

into force of the Act will relate to offences alleged to have occurred before the coming into force of the Act. Finally, although the

return for trial is, as counsel observed, referred to in the section it is clearly not the focus of it. If the Act only applies to statements

made in cases where a return for trial is made after the operative date of the Act, then the provision will necessarily apply to

statements made and offences which predate the Act. It makes little sense to advance a strained and artificial interpretation on the

ground that is compelled by the presumption against retrospectivity, when the interpretation advanced would achieve that objective

only imperfectly. While this or any other cut off date could be selected as a matter of administrative convenience by the drafter, it is

hard to see, in the absence of such specific selection, why or how such an interpretation could be arrived at by the application of the

presumption invoked by the applicant. It is for reasons such as this that procedural and evidential changes are normally thought to

apply from commencement. Bennion refers to the statement of Lord Hailsham in the House of Lords, that; “purely procedural and

evidential changes should apply as from the moment when the law is enacted to the proceedings which are currently pending before

the courts”. In Bairstow v. Queens Moat Houses plc [1998] 1 All E.R. 343, Nelson J. said:

“This case demonstrates that these were wise words. The prospect of two different rules as to the admissibility of

hearsay applying simultaneously in English law, dependent on the date of commencement of proceedings, is not

attractive. No more attractive is the prospect of simultaneous applicability of alternative codes of procedure.”

These observations were adopted with approval by Peart J. in DPP v. Mc Dermott [2005] 3 I.R. 378 at p.383 and appear applicable

here. Finally counsel did not refer us to any example where a procedural change was held not to operate immediately, by operation of

the presumption. Indeed it is worth observing in passing that although these courts have witnessed the phenomenon of trials for

allegations of abuse alleged to have occurred many years ago, it has never been suggested that any such trial should proceed

without regard to the changes in relation to evidence by video link, proof by written statement, alibi notices and majority verdicts, to

take only a few examples which became law after the dates of the alleged offences.

16 These considerations lead us to a number of conclusions. First, the trial judge was quite correct in concluding that there was no

fundamental unfairness such as underpinned by either the constitutional prohibition in Article 15.5.1 or the common law presumption

of statutory interpretation. The changes here were properly characterised as procedural and evidential in nature and accordingly the

presumption did not apply. In any event, the change effected was essentially prospective in that it applied only to events occurring

at trials after the coming into force of the Act. In so much as it could be characterised as having a retrospective effect in the sense

that it altered the legal characteristics of statements made prior to the coming into force of the Act, such a change, while essentially

procedural and evidential, was in any event a consequence of the clear language of the Act, and no other interpretation of the

section is plausible. Accordingly, the applicant’s argument on this ground fails.

The Second Issue: Unfairness

17 The applicant sought to make a related argument based upon the specific language of section 16(4) which permits the trial judge

to refuse to admit a statement in evidence if “having had regard to all the circumstances, including any risk that its admission would

be unfair to the accused … in the interests of justice it ought not to be so admitted”. Under this heading the applicant relied upon the

delay in commencing the prosecution, more particularly the failure of the prosecution to serve the book of evidence in a timely

fashion, and the subsequent delay in serving a complete book of evidence, as a basis for the contention that it was necessarily unfair

to the accused to permit the invocation of section 16 and it was therefore in the interests of justice that it should not be so

admitted. The essential argument was that had the prosecution been conducted with appropriate speed, the trial would have

occurred at a time prior to the coming into force of the 2006 Act, and accordingly he suffered a prejudice because section 16 could

not have been invoked against him in such proceedings. The argument outlined was developed in an attractive way by counsel for the

applicant. It was said that the prosecution had been guilty of culpable delay, and that it was completely unfair to permit the

prosecution to benefit from the consequences of its own wrong doing. But the attraction in this argument is at best superficial. The

prosecution of a criminal offence pursuant to Article 34 of the Constitution is an adversarial process and it is inevitable that one side

will seek to advance its own case by attacking the other. But the essential issue in any trial is the guilt or innocence of the accused

on the charge. An issue for any court, whether of review or appeal (or indeed trial), is the fairness of the process within which that

determination is made. That, however, is not a review of the professionalism, efficiency or speed of the prosecution. However

lamentable errors and delays may be, it would be itself a negation of justice if they could too readily result in the prohibition of trials

or the quashing of otherwise unimpeachable convictions. It is entirely regrettable that there should be delays still less culpable delay

in the prosecution of any criminal offence but the consequence of delay must be rigorously scrutinised. The first question, which is

normally addressed in judicial review proceedings, is whether such delay resulted in prejudice. It is not normally a prejudice if

applicable law is applied in fact. It cannot be the case that the invocation of section 16 per se is unfair or a prejudice to the

accused. Indeed the absence of a provision such as section 16 could be seen as a defect in the law. Therefore something more must

be shown than the mere fact that a provision, otherwise fair, was applied at a trial. It must also be observed that time elapsed here

for a number of reasons. As it happened, the time when the 2006 Act was enacted was time taken up by the applicant’s own judicial

review. Notwithstanding the prosecutorial delay therefore, he could have had a trial under the provisions of the law predating the

2006 Act had he considered it desirable, and even earlier if he had sought to assert an entitlement to a speedy trial. Furthermore,

there is, it appears to the Court, a flaw in the contention that the applicant was necessarily prejudiced in this regard. There is no

evidence that the witnesses who refused to give evidence, or gave evidence which was materially inconsistent with their statements,

would also have done so at any stage prior to the trial in 2009. Had the trial taken place closer to the events giving rise to it the

relevant evidence might have been given viva voce. Once served with the book of evidence the applicant could be said to be entitled

to expect, or at least anticipate, that evidence would be given against him in accordance with the statements contained in the book

of evidence. In the event, that transpired, albeit in the case of the evidence of two witnesses, through the medium of section 16 of

the 2006 Act. It is difficult to see how the applicant’s position can be said to have suffered the type of prejudice which would render

the trial, or the admission of the statements, unfair to him particularly when the prejudice asserted amounts to a contention that the

accused was no longer able to benefit from the lamentable fact that a witness might refuse to give evidence in accordance with a

formal statement of evidence provided by him or her, should that occur.

The Third Issue: Comments of the Trial Judge

18 The trial judge reviewed the evidence and gave directions to the jury as to the applicable law. The applicant makes no complaint

about these. Indeed during requisitions, counsel for the accused described the bulk of the charge to the jury as a “model of fairness

and balance” (Day 19, p.63). However, the applicant takes serious issue with the concluding portion of the judge’s charge (Day 19,

p.61) which it is necessary to set out in full:

“So Mr Foreman, ladies and gentlemen, you have heard all the evidence, you have heard the arguments advanced by

counsel on both sides, and, over the weeks that this trial has gone on, quite an amount of evidence has been offered. On

the prosecution view, that evidence that is offered is more than sufficient to justify a verdict of guilty. On the defence

view, too many questions are left unanswered and too many gaps remain unfilled.

Essentially the prosecution contend that Mr Rattigan was the knife man. If they’re wrong about that, and the knife man

was someone else, then there’s no doubt that Mr Rattigan has been most unfortunate. He was unfortunate in the first

place that he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in

the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the

knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky

that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene, that

it should be located four inches away from a point where a swab was taken, which was established to match that -- the

DNA profile matched the blood of Mr Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to a

Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have

been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved

in the incident happened to use the same term of abuse – “Rats” – as a term of abuse that he used when interviewed by

the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that

there will be a particular section of the public for whom it is probably common place. Then, unlucky that he would

compound his difficulties by telling lies and bringing greater problems on himself, lies if you accept the fact that what he’s

supposed to have said was in fact said, that the prints on the windows and the door are, in fact, his. So, unlucky.

However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in

this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a

coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to

your intelligence.”

Counsel for the applicant submits that this was in effect a powerful statement of the case of the prosecution, perhaps more powerful,

focussed and effective than that put by prosecuting counsel, and was delivered towards the conclusion of the charge with rhetorical

flourish. The jury were left with the repeated words “unfortunate” and “unlucky” ringing in their ears. In addition to the lack of

balance complained of, counsel also said that this misstated the defence or at least put an explanation – coincidence – not relied

upon by the defence in to the mouth of the defence and then discredited it.

19 First, it should be said that the applicant’s claim that the trial judge suggested that the defence case amounted to an affront or

an insult to common sense seems misplaced. On any fair reading of the judge’s comments, it is clear that he said something quite

different: that the jury could only discount any possible coincidence as an explanation of the evidence if it was satisfied that any

explanation of coincidence amounted to an affront to common sense. But more substantial points are made by counsel for the

applicant as to this aspect of the charge. First it is argued that even if comment was permissible (and of course a further limb of the

argument was that the comment here was not), these comments were simply impermissible since they raised an argument never

advanced on behalf of the accused and then demolished it. The Court, having considered carefully the argument made by counsel,

does not accept the suggestion that the judge was wrong to canvas the possibility of any other explanation of the evidence

consistent with the innocence of the accused. While it might be possible to make a verbal distinction between the defence proffered

on behalf of the accused (that too many questions were left unanswered and too many gaps remained unfilled) and the question of

alternative explanations, the Court is not satisfied that it is possible to separate these matters in reality. The first question was

whether the jury accepted the physical evidence of the finding of the finger prints and palm print, and the evidence of the swab of

the substance found four inches away on the same window matching the blood of Mr Gavin, none of which was in contest. If so, then

an inevitable conclusion was that the accused had been at the crime scene, and that his denial of being at the Abrakebabra premises

for a period of months, was itself false. One conclusion, to put it at its lowest, to which that evidence pointed therefore, was the

guilt of the accused. It does not seem possible to assess the defence argument that there was insufficient evidence, or that too

many gaps remained in the evidence, without considering what other possible conclusions could be drawn from this evidence once it

was accepted. In the absence of any positive explanation consistent with the evidence but inconsistent with guilt, the only logical

possibility remaining was that of coincidence. Accordingly, the reasoning process engaged in by the judge in this passage cannot be

separated from the fundamental questions posed in the case. It is this Court’s view however, that no objection can be taken to the

reasoning process in itself. Accordingly the Court does not accept the applicant’s contention that the passage mischaracterised the

applicant’s defence. Accordingly it is necessary to consider the applicant’s objections to the content of this passage.

20 In submissions to this Court, counsel for the applicant suggests that it is the current practice of judges charging a jury to make no

comment whatsoever on the state of the evidence but to simply and neutrally recite what has been said by either side. However, no

authority has been cited for the suggestion that the trial judge is permitted to do no more than recite the contentions made in closing

speeches by the prosecution and the defence. It remains the law, as set out by McGuinness J. in DPP v. DO’S [2004] IECCA 23 that;

“Comment is permissible if it is made in the course of a fair and balanced charge.” The judge may comment, it was argued but his

comments must be those appropriate for a judge and should not be “the stuff of advocacy.” This may be so, but it describes rather

than defines the appropriate standard. However, the function of a trial judge is not merely to repeat the evidence given and the

submission made by counsel, together with perhaps undigested and indigestible quotations from text books or decisions of this or any

other court. The function of the trial judge is to ensure in the first place that by appropriate rulings, only such evidence as is properly

admissible, is heard by the jury. A jury must then assess that evidence by reference to concepts and reasoning processes which are

unfamiliar to them and which they are encountering for the first time in the highly charged context of a criminal trial which will often

involve evidence which is disturbing and indeed shocking. The function of the trial judge is to give guidance to the jury not only as to

the legal concepts involved, but also to assist them in understanding the task which they are to perform. It should go without saying,

that a jury is not chosen as the finder of fact in criminal trials because its members have any training or expertise in criminal

investigation, deductive reasoning, or methods of logic; instead a jury makes decisions for which its potential members are admirably

suited, namely the application of common sense and experience to an analysis of the facts within a legal framework provided by the

judge. The function of a trial judge in this regard is to attempt to present to the jury the issue which it has to decide in a clear and

comprehensible way. In a simple case this may involve no more than identifying what has been said on each side but in more complex

cases it will necessarily involve a degree of analysis of the evidence if only to focus on the central issues, and to present what is to

be considered by the jury, in an ordered, comprehensible and intelligible way.

21 At times the argument on behalf of the applicant seemed to assume that if it could be established that something said by a judge

in charging a jury could have been said by an advocate, it was therefore impermissible. This, with respect, is perhaps to

misunderstand and oversimplify the appropriate test as to whether a judge has “entered the arena” or engaged in “the stuff of

advocacy” or otherwise been guilty of a fatal lack of impartiality. What is precluded is conduct which is inappropriate for a judge and

which is advocacy as to the outcome, which is partisan, and which therefore departs from the fairness which should be expected of a

trial judge. Furthermore if there is such partiality, it cannot be cured by formulaic statements on the role of judge and jury and of the

entitlement of a jury to disregard the views of the judge. But analysis of any such complaint necessarily involves an analysis of the

overall charge, and indeed may involve consideration of the conduct of the trial as a whole. Here it is necessary to consider the

disputed passage in the context of the charge to the jury which spanned two days, and a trial which occupied 20 days of court time.

Counsel for the accused readily and properly acknowledged that the main portion of the judge’s charge was impeccable. Although

complaint was made about other rulings of the judge during the course of the trial, these were not pressed at the hearing of this

appeal. In any event, it is this Court’s view that the trial judge dealt with an extremely difficult trial in a professional and practical

way that was obviously fair. The trial itself was punctuated by a number of diversions and distractions. In the first place there was a

large number of legal argument and rulings. This, it should be said, is not in any way to comment upon, still less criticise, the manner

in which the defence is advanced in this case, which was admirably professional. More unusually there was a necessity for repeated

applications to invoke section 16 of the Criminal Justice Act 2006 and even more regrettably applications in relation to compelling the

attendance of witnesses. At the end of this lengthy period there was however a large number of individual pieces of evidence which

required to be gathered and synthesised. When that exercise was done certain observations might readily be made about the logical

conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge did not

comment on the veracity of any witness, or express his own views on some contested issue of fact which lay readily and properly

within the expertise of the jury. Instead he made certain observations on the logic of the existing evidence with which it must be said

it is difficult to argue. The particular passage is, as the applicant submitted, both clearly and powerfully expressed, but clarity of

expression and analysis is not necessarily a vice in a trial judge attempting to give assistance to the jury by way of an oral

presentation which will be heard only once by the jury. Ultimately this is a matter for the judgment of this Court. Taken in the overall

context of this case, the Court does not consider that the charge to the jury can be said to be unbalanced or that the trial judge

commented in a fashion which was inappropriate for a trial judge. Accordingly, these grounds of appeal fail. The Court will now

consider the additional grounds advanced.

Ground 5: Fair Procedures

22 It was alleged under this ground that the nature and extent of the trial judge’s rulings would have left the jury with the impression

that the defence was being obstructive, and furthermore that rulings were made by the judge which effectively entered the arena

and directed and prompted the prosecution in the context of this case. The applicant, it was argued, was obliged to make a number

of objections, a number of them justified and which were upheld by the trial judge. It was suggested that the jury must have been

“left with the impression that the defence deployed the normal rules of evidence when under pressure as a tactic to relieve pressure,

although nothing could be further from the truth”. This complaint appears however somewhat fanciful, and in any event, it is not an

objection to the conduct of the trial judge who cannot be faulted for ruling on objections raised by either side. There is a distinction

between the sometimes understandable professional frustrations of the advocate intimately involved in and committed to a case, and

a trial which is unfair. Where the trial judge intervened it is clear to this Court that he did so to seek to ensure that the trial

proceeded as smoothly and efficiently as possible. In the view of this Court, neither the jury, nor any other observer, could

reasonably have formed any impression that the trial judge was favouring the prosecution.

23 It is necessary to deal only briefly therefore with some specific examples cited by the applicant. First, it is suggested that the trial

judge was wrong to allow questions to be asked in re-examination which did not arise in cross-examination. The instance given was

an objection made by counsel for the defence in relation to what was characterised as “a relatively uncontentious witness” to which

the judge responded “to use your own phrase … you put down a marker”. Counsel replied, “very well”. The judge then said, “I am sure

it is noted”. There followed then a separate objection by the defence to a leading question, itself undeniably innocuous, to which the

judge made the observation that counsel was “perhaps being a little over sensitive there”. It is difficult if not impossible to see how

any of this could possibly amount to a valid complaint in respect of the conduct of the trial. Second, a specific complaint was an

allegation that the judge entered the arena by directing or prompting the prosecution and its conduct of the case. Again, the example

given was a dispute about a witness, in which the judge said, “surely the next step in the procedure is this: that he comes back in

and you move your application to treat him as hostile?” Counsel for the prosecution said, “Yes well, first of all I have to …”. The judge

then interjected, “I mean I assume you propose to follow the procedures laid down in Taylor …”. Again, the applicant’s complaint in

this regard seems to this Court to be misplaced. It appears to the Court that the trial judge’s anxiety was merely to ensure that the

steps which were to be taken in the trial were carried out in an efficient and reasonably prompt fashion. This could not reasonably be

interpreted as being in any way favouring the prosecution. The suggestion that in engaging with counsel and incidentally setting out

his own, correct, view of the law the judge was somewhat prompting counsel for the prosecution, is fanciful. Perhaps a more serious

complaint relates to an issue in which counsel for the prosecution inadvertently read a portion of an interview with the accused which

it had been agreed between the parties should be excised. However, this was not a deliberate attempt to introduce forbidden

material, the error was immediately acknowledged, responsibility was properly taken for it, it was to some extent understandable, and

suggestions were made as to how the matter could be addressed. None of this was acceptable to the defence which insisted on

seeking to have the jury discharged. The practice of editing interviews to exclude matters not simply on the ground of admissibility

but also general fairness is one that carries the danger of presenting an incomplete and therefore inaccurate picture of an interview

and also removing evidence which may go to assist in the picture the jury might form of the events. It also carries the risk of error

such as occurred here. In the view of this Court the judge was quite correct to refuse the application to discharge the jury on this

ground. In summary, the Court does not consider that there is any substance to the complaint made as to the conduct of the trial by

the judge. It is only fair to say that this ground was not pressed at the hearing of the appeal.

Grounds 6-9: Voir Dire re Detention on the 4th - 5th September

24 The applicant raised a number of grounds relating to the arrest and detention of the applicant and the consequent admission into

evidence of interviews with the applicant when in custody.

Ground 6: Arrest of the Accused

25 The accused was arrested on suspicion of the offence of murder of Declan Gavin, and was so informed. However, in cross-

examination a Detective Sergeant O’Hara gave evidence that he had arrested him “in accordance with common law”. It was submitted

that in 2001 there was no longer a power of arrest at common law for murder as the Criminal Law Act 1997 had abolished all

distinctions between felony and misdemeanour. It was argued that the common law power of arrest for felony had also fallen, and

indeed that the power of arrest for murder was now statutory in that section 4 of the Criminal Law Act 1997 permits a member of the

Garda Síochána with reasonable cause to arrest an individual who is suspected to be guilty of an arrestable offence. The trial judge

considered, correctly in the view of this Court, that the point made on behalf of the accused was without merit. The actual arrest

was authorised and was clearly in accordance with section 4. The arresting officer had a reasonable suspicion that the accused was

guilty of the offence of murder, which itself was an arrestable offence. The accused was so informed. The fact that the Detective

Sergeant may have considered that the power was conferred by common law rather than statute could not invalidate the arrest.

Accordingly this ground fails and it is not necessary to consider the further ground advanced on behalf of the prosecution that

section 4(6) of the 1997 Act has the consequence that the abolition of the distinction between felony and misdemeanour did not

prejudice any existing power of arrest.

Ground 7

26 It was argued that the accused was not detained in accordance with section 4(2) of the Criminal Justice Act 1984 (“1984 Act”)

because it had not been established that the member of the Garda Síochána in charge at the time of the arrival of the accused at the

garda station had reasonable grounds for believing that the detention of the accused was necessary for the proper investigation of

the offence. This matter was not pressed vigorously at the hearing of the appeal, and the Court is satisfied that there is no

substance to it. There was clearly evidence upon which the Court was entitled to conclude that the relevant member had reasonable

grounds for believing the detention was necessary for the proper investigation of the offence.

Grounds 8 and 9

27 In this case, the relevant interview took place during the night. Section 6(A) of the 1984 Act requires that the member in charge

may suspend questioning to afford the person reasonable time to rest and consequently, other than with the authority of the member

in charge, an arrested person shall not be questioned between the hours of midnight and 8 a.m. In this case, the accused declined

the offer of suspension, as he was entitled to do, and wished his questioning to continue, which it did. However the continuation of

the questioning was not formally authorised by the member in charge although that was the necessary consequence of the refusal of

the offer of suspension. It was argued accordingly that the evidence obtained while in custody should be excluded. This ground can

be taken with the further ground, that there had been a failure to comply with the judge’s rules in that while the interview notes were

recorded in writing and offered to the accused, he had not been formally invited to make any corrections to them.

28 In the context of this case, it is apparent that these are both technical objections and do not amount to grounds for setting aside

the jury’s verdict. The trial judge was entitled to, and in the view of this Court, correct, to conclude that neither of these breaches

should result in the exclusion from evidence of the relevant interviews.

Grounds 10 and 11: Prejudicial Questioning

29 Both these grounds relate to the fact that counsel for the prosecution, in re-examination, asked a Detective Sergeant; “How many

people were arrested on suspicion of being the knife man?” The answer to that question was “One, the accused Brian Rattigan”.

Objection was taken to this exchange as prejudicial to the accused since it was alleged it introduced by the back door evidence of

views held by investigating garda which would not be admissible under the normal rules of evidence.

30 In the view of this Court this ground is not well founded. The particular sequence occurred immediately after cross-examination on

behalf of the accused which contained the following passage:

“Q. Now I think the investigation into the death of Mr Gavin that involved quite a number of arrests by the gardaí

some of them arrested on suspicion of murder and some of them other offences associated with it; isn’t that right?

A. Yes judge.

Q. Can you give the jury any idea approximately how many people were arrested by the gardaí in the course of the

investigation?

A. specifically for the murder, four people, and the rest were in connection with the overall investigation.”

In this context, it does not seem justifiable to complain about the re-examination, even if it could have been phrased slightly

differently. The implication of the cross-examination was to introduce a suggestion that the gardaí suspected other people of the

murder. This type of thrust and parry between opposing counsel is perhaps an unavoidable element of any trial. It is almost inevitable

that, with hindsight it will be possible to suggest ways of avoiding contention on a topic, if the case had been conducted more

carefully or elegantly in some respect. But that is just one further manifestation of the principle of delayed eloquence which is the

constant and unforgiving companion of any conscientious advocate. It cannot be seriously maintained that this exchange was not

only impermissible but is a ground for quashing the conviction.

Ground 12: Professor Harbison’s Report

31 Objection was taken to the admission of Professor Harbison’s report. Professor Harbison was no longer available to give evidence

for health reasons. Evidence of his ill health was given to the Court. While it was submitted by the defence that the Court was wrong

to admit the report into evidence, this Court is satisfied that the Court was not only entitled to do so, but was correct.

Ground 13: Fingerprint Evidence

32 The fingerprints used to prove that the fingerprints found on the window and door in Abrakebabra were those of the accused,

were fingerprints taken from the applicant on the 22nd of November 2001 when he was arrested in connection with another,

unconnected, matter under the provisions of section 30 of the Offences Against the State Act 1939-1998 (as amended). There is

also provision for the taking of fingerprints in the Criminal Justice Act 1984. Under that Act however, where proceedings for an

offence are not instituted within a period of six months from the date of the taking of the fingerprints, the fingerprints must be

destroyed. It was argued that this provision also applied to fingerprints taken under section 30 of the Offences Against the State Act.

However, section 8 of the 1984 Act, which requires destruction, only applies to fingerprints “taken in pursuance of the powers

conferred by s.6” of the 1984 Act. It seems clear therefore that the section does not apply to fingerprints taken under the 1984 Act.

Walsh in Criminal Procedure (Dublin; 2002) parag.6.45 points out:

“The police powers to photograph, fingerprint and palm-print a suspect in their custody pursuant to section 30 of the

Offences Against the State Act 1939 are identical to those for suspects detained under section 4 of the 1984 Act…In the

case of section 30 suspects, however, there is no provision for the destruction of the … fingerprints. The clear implication

is that they can be retained even if the suspect is released without charge, or if he is acquitted or discharged in relation

to criminal proceedings.”

In the circumstances, this ground also fails.

Ground 14: Fingerprint Evidence (2)

33 A fingerprint expert was to give evidence as to whether the prints found at the scene could be matched to the applicant’s

fingerprints and palm prints. His statement in the Book of Evidence stated that he was satisfied “beyond doubt” that the prints were

those of the applicant. There was a brief submission by counsel as to this formulation and the judge was asked to give a direction in

relation to it. He said:

“Now I’m taking the view that the witness was entitled to express his level of confidence, I have a concern that the

formula that was being adopted there very closely mirrored the reference to being satisfied beyond reasonable

doubt … That the formula used by Detective Garda Connor was somewhat less extreme, in that I think he confined

himself to saying he had no doubts that the labels marked matched each other, and if that is so, I am not going to

give him any directions. If on the other hand he chooses to give his evidence in terms of “I am quite satisfied” or “I

am confident” or some alternative formulation then equally I have no difficulty with that. The jury are entitled to be

led to believe the Detective Garda as an expert, and he qualified as an expert, is very confident in his views.”

34 In the event, in his evidence before the Court, the witness said that he had “no doubt” that the mark was made by the applicant’s

left palm. He said: “I was also satisfied beyond doubt that the mark was made by Mr Rattigan’s left palm”. While it was acknowledged

that counsel for the prosecution tried to undo some of this by asking “You have told the jury that you are in no doubt that”, it was

submitted that this was a case of “too little too late” and the conviction should be quashed on this ground.

35 Again however, in the view of this Court this ground cannot be a basis for upsetting the verdict of the jury. The judge was quite

entitled to indicate his view that it was not desirable that evidence should be expressed in terms which too closely mirrored the well

known language of being satisfied beyond reasonable doubt. But that is very far from saying that the use of such language still less

the words “beyond doubt” is impermissible or still less that if used even inadvertently should lead to the discharge of the jury, or the

quashing of the conviction. There is no suggestion that the witness deliberately sought to ignore or circumvent the trial judge’s

observation. Witnesses are not automated, they cannot be programmed to recite exact speeches and they are not actors who can

be scripted. The giving of evidence in a criminal trial is a stressful business and sometimes things are said unintentionally. This Court

does not accept the submission on behalf of the applicant therefore, that in “allowing” the Detective Garda to give evidence that he

was in no doubt that the prints matched, and to use the word “doubt”, the judge allowed the witness to stray into the domain of the

jury. First, the judge did not “allow” the witness to use the formulation he did; on the contrary he sought to suggest a formulation of

evidence which could be accepted, and yet avoid the concerns expressed on behalf of the defence. But the use of the word “doubt”

does not “stray” into the domain of the jury. To so characterise it is to misunderstand the limits of expert evidence. The ultimate

issue for the jury was the guilt or innocence of the accused. This witness expressed no opinion on that. He expressed an opinion

within his area of expertise as to the degree of confidence with which he concluded that the prints matched. It was an example of

the scrupulous way in which the trial was conducted that the judge sought to avoid a formulation which in any way mirrored the

formulation “beyond reasonable doubt”. However, the fact that the witness expressed himself in terms of having no doubt rather than

for example being certain, could not in the view of this Court, be a ground for quashing the conviction.

Ground 15: Refusal of an Application of No Case to Answer

36 The Court is satisfied that the trial judge was quite correct to refuse the defence’s application of no case to answer at the

conclusion of the prosecution’s case.

Ground 16: Refusal to Readdress the Jury on Circumstantial Evidence

37 The applicant complains that when the judge addressed the jury in relation to the conclusions to be drawn from circumstantial

evidence he said the following:

“In respect of an particular item of evidence, if two views of the evidence appear to be open, then you, as jurors must

take the view of the evidence that is more favourable to the accused unless it is a situation that the prosecution has

satisfied you beyond reasonable doubt that it is proper to view the evidence in the way for which they contended.”

Again, this was revisited by the trial judge, and expanded upon. He said:

“If two or more inferences are reasonably made and you have to decide which to draw, then you must draw the inference

most favourable to the accused unless satisfied beyond a reasonable doubt that the inference for which the prosecution

contend is the appropriate one to draw. In a situation where a case depends entirely on circumstantial evidence, the jury

may indeed properly convict but they can only do so in a certain situation where it is not the case that the

circumstances established were merely consistent with guilt, but over and above that, that the circumstances established

are inconclusive with any other rational conclusion other that the person in charge was guilty.”

On behalf of the applicant it is contended that this did not reproduce text of the judgment in DPP v. Cronin [2003] 3 I.R. 377 at

p.389. However, this Court is satisfied that a trial court is not obliged to reproduce word for word what is said in any case even a

leading decision such as this. On the contrary, it is for the trial judge to attempt to explain to the jury the task it faces, and the

manner in which it must approach issues such as circumstantial evidence and the inferences to be drawn from evidence. The Court is

satisfied that the trial judge’s charge in this regard was perfectly adequate.

In the circumstances, the application for leave will be dismissed.