Court of Appeal dismisses appeal on notification failure, finding evidence of knowledge and ordinary business records valid.

THE COURT OF APPEAL

Record No. 242/2014

Birmingham J.

Mahon J.

Edwards J.

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

- and –

Ian Bissett

Appellant

JUDGMENT (ex tempore) of the Court delivered on the 7th day of June 2016 by Mr. Justice Mahon

1. The appellant was convicted at Dublin Circuit Criminal Court on 31st October 2014 by a jury, following a three day trial, of one

count of an offence contrary to s. 10(1) of the Sex Offenders Act 2001, as amended. The learned trial judge directed his acquittal in

respect of a second count. On 25th November 2014 the appellant was sentenced to a term of two years imprisonment to run

concurrently with a sentence he was then serving.

2. The appellant appealed his conviction and sentence. This judgment relates to his conviction appeal only. The appellant has today

advised the Court of his withdrawal of his appeal against sentence.

Background facts

3. On 7th December 2009, the appellant was released from prison having served a sentence for aggravated sexual assault. Prior to his

release, on 14th November 2009, the appellant was informed by an employee of the prison service of the conditions placed on him by

the Sex Offenders Act 2001. The appellant signed and acknowledged a document in the following terms:-

I, Ian Bissett, am being released from Arbour Hill Prison on remission on 7th December 2009. I hereby confirm that I

have been notified that I will be subject to the conditions set out in the Sex Offenders Act. It has been explained to me

that I must notify the Garda Síochána of my name, address and date of birth within seven days of my conviction or

release from prison as appropriate. I must also notify the Garda Síochána of any changes to these details within seven

days.

4. The appellant was released from another term of imprisonment on 21st June 2011. He was again informed of his obligations under

the 2001 Act on 17th June 2011 by an employee of the Prison Service, and the appellant signed a similar document acknowledging

these obligations.

5. On 19th July 2011, the appellant was arrested by Sgt. Byrne and informed that he was required to provide his current address to

An Garda Síochána in accordance with the 2001 Act. He was interviewed and informed that the gardaí were investigating the offence

of failing to notify gardaí of his name and place of residence within seven days of his release from prison, contrary to s. 12 of the

2001 Act. The appellant completed the notification form and provided the following address as his place of abode, namely, The

Salvation Army Hostel, York House, Longford Street Little, Dublin 2.

6. On 2nd September 2011, the manager of the Salvation Army Hostel at York House informed Sgt. Byrne that the appellant had failed

to return to the hostel. He provided Sgt. Byrne with a list of dates when the plaintiff had failed to return, and these included a nine

day period between 13th and 21st August 2011. There had been no notification of any change of address to the gardaí. Section 12 of

the 2001 Act made it an offence for the appellant to fail to notify the gardaí, without reasonable excuse, of any change of his

address within seven days of that change occurring.

7. On 18th October 2011, Sgt. Byrne arrested the appellant at Cloverhill Prison. In the course of interviewing him, the appellant

stated that he had failed to comply with the requirements under the 2001 Act because he was the subject of a warrant and he did

not want the gardaí to know where he was. He in fact had moved to Limerick.

8. In the course of his trial a log book from the Salvation Army Hostel recording dates when the appellant and other residents of the

hostel were not present, was adduced at trial.

The appellant’s grounds of appeal

9. The appellant’s grounds are that:-

(i) the learned trial judge erred in law and in fact by admitting evidence of a log kept by staff at a hostel as

documentary evidence pursuant to s. 5 and s. 6 of the Criminal Evidence Act 1992, and

(ii) the learned trial judge erred in law by holding that the appellant could be convicted of the offence in question even

though no evidence had been offered throughout the course of the trial that the appellant had been warned that it was

an offence to comply with the requirements of the Sex Offenders Act 2001 as amended by the Criminal Law Human

Trafficking Act 2008 and that he could face imprisonment if he were convicted of such an offence”.

Section 5 of the Criminal Evidence Act 1992

10. The relevant provisions of s. 5 of the Criminal Evidence Act 1992 provides as follows:-

(1) Subject to this Part, information contained in a document shall be admissible in any criminal proceedings as evidence

of any fact therein of which direct oral evidence would be admissible if the information:-

(a) was compiled in the ordinary course of a business,

(b) was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be

supposed to have had, personal knowledge of the matters dealt with, and

(c) in the case of information in non-legible form that has been reproduced in permanent legible form, was

reproduced in the course of the normal operation of the reproduction system concerned.

(2) Subsection (1) shall apply whether the information was supplied directly or indirectly, but if it was supplied indirectly,

only if each person (whether or not he is identifiable) through whom it was supplied received it in the ordinary course of a

business.

(3) Subsection (1) shall not apply to:-

(a) information that is privileged from disclosure in criminal proceedings,

(b) information supplied by a person who would not be compellable to give evidence at the instance of the party

wishing to give the information in evidence by virtue of this section, or

(c) subject to subsection (4), information compiled for the purposes or in contemplation of any:-

(i) criminal investigation,

(ii) investigation or inquiry carried out pursuant to or under any enactment,

(iii) civil or criminal proceedings, or

(iv) proceedings of a disciplinary nature.

11. In essence, the appellant maintains that the hostel log ought not to have been admitted into evidence under s. 5 of the Act on

the grounds that the persons who had inputted its entries were unidentifiable. It was maintained that this was in breach of s. 5(1)(b)

and 5(3)(b) and also that the purpose for compiling the log was in contemplation of criminal proceedings or disciplinary procedures in

breach of s. 5(3)(c)(i) and 5(3)(c)(iv). It was contended that the admission into evidence of the details recorded in the log this

amounted to documentary hearsay.

12. At issue was whether the hostel log was complied in the ordinary course of a business or created / maintained in contemplation of

criminal proceedings.

13. The respondent’s submissions made to the learned trial judge stated as follows:-

“There is a whole host of people in situations covered by these records, Judge, and it is simply not tenable to say that

this record has been kept in contemplation of making reports to the probation or the gardaí. Its purpose is multi

facetted, and the fact that it ultimately ends up been used as a documentary exhibit in a criminal case certainly could

not lead the court to the conclusion that that was the purpose for which it came into existence. In this particular case,

Judge, Mr. Bissett had been given a bed in a house which he quite simply was not using and ultimately that was the

reason why he was asked to leave because he was taking up a valuable bed and he was not using it and the purpose for

which the AWOLs and the Out of Hostel Records would appear to me to have been retained, so that people are not

taking up what are highly valuable hostel beds and in fact not using them, in addition to other matters which are

covered covering the behaviour of the various inhabitants during the course of the night and anti social behaviour. This

is a body, Judge, that is run in conjunction with the HSE under the Department of the Homeless.”

The ruling of the trial judge

14. On Day 2, the learned trial judge ruled as follows:-

“..the question I have to decide was this ledger created in the ordinary course of business? Now, what is the business of

the Salvation Army Hostel? I think its business is to house people who have no other accommodation. Now these people

are sent to them by, I think ,the City Council and the City authorities. Obviously these people can’t be there, can have

no accommodation for various reasons. But they are running a hostel and there are many of the inhabitants of that

hostel, that hostel, could be termed difficult. And it incumbent, I think, on the hospital authorities to keep some record

of what hours and day by day, and they do this by simple ledger. Everything is recorded of note. Obviously if they, if

somebody gets a smell of cannabis it is noted, obviously if somebody is disagreeable and fighting it is noted, obviously if

somebody does not show up to take up their bed it is noted for a particular reason, that they want to maximise the use

of their hostel facilities. So all these are fairly common or garden issues. Obviously from time to time whether somebody

is residing at this particular hostel can have some interest to the prosecuting authorities because people may have as

part of their probation obligations a requirement to stay in this particular hostel. That is not the reason in by view by

this book / diary is created. It is created for their convenience and for the purpose of the Salvation Army. They want to

know what is happening in their hostel. They want to know who is in their hostel, who is there on a particular night. And

it is fairly common sense that they have to keep some form of record. And I think this is a classic record produced in

the ordinary course of business. The business of the Salvation Army is to house people who probably would not have any

other accommodation otherwise, and obviously by housing all these people and there is obviously difficulties. Various

people are pushed together in an accommodation and there has to be some sort of control over that situation, and

there has to be some form of record of what is happening in the building. And this is simply that. ..”

15. The fact that the hostel log contained information which conceivably was, or might be, relevant to a criminal prosecution does

not render it a document compiled for the purpose or in contemplation of any criminal proceedings with the meaning of s. 5.3.C.(i) of

the 2001 Act. It is quite apparent that the hostel log was maintained for the purposes of recording information relevant to, and

indeed essential for, the day to day management of the business activity of the hostel. It included information relating to the

identities of individuals residing in the hostel, or booked in for that purpose, their dates of arrival and departure, the behaviour of

residents and so on. Such information might well be found in the daily records maintained at nursing homes and hotels. Conceivably,

much of this type of information would never be of any interest to gardaí or to third parties.

16. The court is satisfied that the hostel log was a document compiled in the ordinary course of business, and was not created or

maintained in contemplation of criminal proceedings. This ground of appeal therefore fails.

17. The second ground of appeal is based on the contention that the appellant was not informed that a breach of the notification

requirements under the 2001 Act attracted penal sanctions – in this instance, the imposition of a prison sentence of up to five years.

The penalty actually imposed in the appellant’s case was a term of two years. It is contended on the appellant’s behalf that there

was an obligation not simply to explain to the appellant what was required of him in terms of informing the gardaí of his place of

abode, and to advise them of any changes in relation thereto within seven days of changing address, but also to explain the penal

consequences of failing to comply with such a requirement.

18. Counsel for the respondent drew the courts attention to extracts from the trial’s transcript on day two of the trial, more

particularly on pp. 87 and 89. The extracts in question relate to the taking of a statement from the appellant by Sgt. Byrne, and from

which it is abundantly clear that the appellant not only knew of his obligation to inform the gardaí of changes of address but also that

if failing to do so carries a penalty and is an indictable offence.

19. The court is of the view that there is no substance whatsoever in this ground of appeal. The appellant was fully aware at all

material time that his failure to comply with the notification requirements of the 2001 Act carried penal sanction. This ground of

appeal must also fail.