Court of Criminal Appeal dismisses appeals against murder and robbery convictions due to no miscarriage of justice.

Macken, J. C.C.A. No. 187/04

Budd, J. C.C.A. No. 184/04

MacMenamin, J.

THE COURT OF CRIMINAL APPEAL

Between/

THE PEOPLE at the suit of

THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

JONATHON TUOHY and

DARREN WALLACE

Applicants

Judgment of the Court delivered on the 5th December 2006 by Macken, J.

These applications are for leave to set aside the respective convictions of each applicant. Both applicants were charged and

found guilty of certain offences after a trial before a jury at The Central Criminal Court sitting in Limerick on the 16th

August 2004, the trial having commenced on the 14th July 2004. The offences for which each applicant was convicted were

(a) murder contrary to common law and to Section 4 of the Criminal Law Act 1997 and (b) robbery contrary to Section 14

of the Criminal Justice (Theft and Fraud) Act 2001. Each applicant was found guilty by unanimous verdict of the jury, and

each was sentenced to the mandatory sentence of life imprisonment in respect of murder, and to seven years in respect of

robbery.

The Background Facts:

The evidence before the court was that in the early hours of 27th September, 2003, shortly after 4.30 a.m. a male caller, on

an emergency 999 line to Henry Street Garda Station, reported a fight in Arthur’s Quay Park in Limerick City. The park is

enclosed by metal railings and has five entrances. In response to the emergency call, a garda patrol van was dispatched to

the scene but was diverted in order to deal with another incident nearby. A second 999 call was received and as a result of

that a garda patrol car was sent to the park. It was driven by a Garda Nally who was accompanied by a Garda Leahy from

Henry Street Garda Station. Both Gardaí were present on the scene at 4.40 a.m., within two minutes of the second call

which was logged at 4.38 a.m.

Garda Leahy testified that when they arrived, she observed a man in a grey top striking a man lying on the ground with a

silver coloured bar. She saw a second man in a dark top crouched over the body. Garda Nally said in evidence that he saw a

man in a grey top with a silver bar raised in one hand standing over a body on the ground and he saw a man in a dark top

crouching over the body. Garda Nally said in evidence he “let out a roar” to stop them and said “stop, gardaí” and that both

men turned around towards him. Both Gardaí noted the man in the dark top stand up and run a few steps and then slow

down to a walk and start to leave the scene. This man was arrested by Garda Leahy and was identified as the accused,

Darren Wallace. Garda Leahy testified that she observed the second man, the man in the grey hooded top, drop the silver

bar. Both Gardaí testified that they heard the bar hit the ground and that the man with the grey hooded top took off at a

quick run from the park. Garda Nally ran after him and pursued him until another colleague, Garda Coonahan, and a student

garda, took up the chase. They caught up with the man. He was Jonathon Tuohy.

The man on the ground in the park was Noel Carmody. He was found by Garda Leahy and Garda Nally to be very severely

injured with wounds to his head, which were bleeding profusely. He was in obvious distress, and was unable to remain still.

His pockets were turned out and he was without shoes or socks, with the bottoms of his trousers pushed up to his calves.

He was taken to the Midwestern Regional Hospital in Limerick where attempts to resuscitate him were not successful and

he died of his injuries at 7.15 a.m. In evidence it was clearly established that the deceased was struck brutally about the

head and body on multiple occasions. Indeed the evidence of injuries given by Dr. Bolster occupied more than 30 pages of

transcript, and took more than one hour to describe. According to the evidence of Dr. Bolster, then acting Deputy State

Pathologist, the cause of the death of Mr. Carmody was multiple lacerations of the scalp, with bruising and multiple

fractures to the skull, and trauma to the underlying brain and multiple fractures of the ribs on the left side, with partial

collapse of the left lung and a fracture of the left forearm. Mr. Carmody was a 42 year old qualified teacher of economics

and maths, but was not employed as such at the time of his death. He had been in a number of restaurants and licensed

premises in Limerick City during the day and into the evening before his death. The evidence of Dr. Bolster indicated that

he had in his body at the time of death an amount of alcohol equivalent to drinking a little over a pint.

Evidence from CCTV footage of an area leading on to Arthur’s Quay Park showed pictures of the applicants wearing

clothing identical to what they were wearing when caught and arrested. In the footage, they are both also seen carrying what

would appear to be long metal silver bars. They were seen walking away from Arthur’s Quay Park at approximately 4.14

a.m., both carrying bars and running back in that direction at 4.18 a.m. This evidence was also supported or corroborated

by a number of witnesses who were in the vicinity of the park at about the time Mr. Carmody was attacked.

Both applicants were taken to Henry Street Garda Station, and detained there under s.4 of the Criminal Justice Act, 1984.

They were interviewed during detention. When the appellant, Darren Wallace, was searched in Henry Street Garda Station

he was found to have, inter alia, two particular items of property in his possession. These were a VISA receipt dated the

26th September 2003, for a food purchase, and a bus ticket. The evidence established that these items were the property of

Noel Carmody. The silver bar was recovered at the scene covered in blood. The evidence established that it had Darren

Wallace’s fingerprints on it. An ATM bank card and a pair of spectacles were found close to the scene of the crime.

The Trial:

The case advanced by the prosecution was that the accused, Darren Wallace and Jonathon Tuohy, were engaged in a joint

enterprise or had a common design, both as to the murder and the robbery of Mr. Carmody. The three eyewitnesses to the

events, or to some of them, were Garda Nally, Garda Leahy and a Mr. Noel Deveraux. Amongst the other circumstantial

witnesses relied upon by the prosecution were a Dr. Daly, a forensic scientist, in relation to bloodstains, and a Sergeant

Burke who attended the crime scene in the near aftermath of the attack on Mr. Dermody.

The applicant, Jonathon Tuohy, while denying any involvement originally, admitted to beating and killing the deceased, his

defence at the trial being one of provocation. In furtherance of that defence he called evidence detailing inter alia, a long

standing medical condition, Attention Deficit Hyperactivity Disorder (“ADHD”) from which he suffered. Professor Maurice

Fitzgerald gave evidence in relation to the nature of ADHD as well as its characteristics and impairments. He also gave

evidence that Jonathon Tuohy’s condition was regulated by medication, and that this was a condition that made persons

with that condition prone to impulsive acts, without at the time taking into consideration their impact.

Jonathon Tuohy, on the evening in question, had mixed a considerable amount of drink with a high quantity of Ritalin, a

medication prescribed for the treatment of ADHD, together with ecstasy tablets. His defence at the trial was that, while in

that condition, he went into Arthur’s Quay Park, Limerick with Darren Wallace where he came upon the late Mr. Carmody

and Mr. Deveraux in the bushes engaged in a sex act. In evidence, Jonathon Tuohy said that in coming upon the scene Mr.

Deveraux took flight, leaving Mr. Carmody whereupon he alleged that Mr. Carmody asked him “do you want one as well”

or words to that effect. He said he was enraged and embarrassed by the suggestion, and recalled striking the deceased with

an iron bar which he had in his hand across the head once, but he accepted that he may have struck him several times as, he

contended, he blacked out. Jonathon Tuohy in evidence said that his co-accused Darren Wallace stopped him beating Mr.

Carmody by taking the bar from him at which stage he, Jonathon Tuohy, walked some distance from the scene of the

beating to nearby steps whereupon he removed his “hoodie” top and paused for a while. He claimed he then returned to find

Darren Wallace with the body and it was at that point that two members of An Garda Síochána, Garda Nally and Garda

Leahy came to the scene and Jonathon Tuohy fled.

Darren Wallace said in evidence he met Jonathon Tuohy on the evening in question, but had not socialised with him

previously. Jonathon Tuohy had taken a long metal bar from a skip which he had broken in two, and they had gone to the

park and they were “messing” with each other. He agreed they left the park and returned again a short time later, both with

the metal bars (which coincided with the CCTV evidence from the area outside the park). When they were returning, he

said, after hitting Tuohy once, and Tuohy hitting him once, he, Wallace threw away his iron bar down steps at a pier. It

would not appear that there is any CCTV video evidence in respect of that event. He says they then saw two men, one the

deceased, in the bushes engaged in a sex act, and that the second man ran away, at which stage Mr. Carmody spoke to

Jonathon Tuohy. Darren Wallace said in evidence he did not hear what was said but that as a result, Jonathon Tuohy hit

Mr. Carmody with the iron bar several times, using two hands to do so. He, Wallace took the bar, with difficulty, from

Jonathon Tuohy and sent him away for a few minutes, and that he had then dropped the bar. He did not know what to do

with Mr. Carmody whom he knew to be badly injured, and then the Gardaí arrived. He denied hitting Mr. Carmody at all.

Evidence was given that Darren Wallace had both contact and impact blood stains on his clothing and shoes.

Both applicants were found guilty by the jury, and leave to appeal was refused by the trial judge. Applications for leave to

appeal were lodged. There was also before this court an adjourned motion for leave to argue two additional grounds (1) and

(2) on appeal in the case of DPP v Darren Wallace, the Court of Criminal Appeal having refused leave on 22nd May, 2006,

to argue any other additional grounds. Leave to appeal on these two grounds was refused by this court by ex tempore

judgment delivered on the 13th November 2006.

The Application for Leave to Appeal of Jonathon Tuohy

The first applicant’s grounds of appeal fall under three general headings, namely:

(i) The verdict of the jury was, in all the circumstances, perverse;

(ii) The trial judge erred in law in bringing to the attention of the jury on day 10 of the trial an incident of misconduct on the

part of Darren Wallace which had occurred in their absence on the previous day and which did not touch on the matters at

issue in the trial, and which thereby prejudiced this applicant in his defence.

(iii) The trial judge erred when recharging the jury concerning s.10 of the Criminal Procedure Act, 1993.

As to Ground 1 that the verdict of the jury was perverse

Senior counsel for Jonathon Tuohy contends that the verdict of the jury was perverse in that:

(a) the jury failed to give appropriate weight to the applicant’s history of Attention Deficit Hyperactivity Disorder;

(b) the jury gave no appropriate consideration to the evidence which was consistent with the account given by the applicant,

including –

(i) the presence of the deceased at Arthur’s Quay Park (a park in which homosexual liaisons take place) at circa 4.30 a.m.

in the morning at a time when there was no commercial activity, and in light of the evidence that the deceased was an

habitual attendee at a gay nightclub,

(ii) the existence of pertinent and critical inconsistencies between the evidence of Garda Nally and Garda Leahy with respect

to whether the applicant was actually assaulting the deceased when the Gardaí arrived;

(iii) the evidence of Noel Deveraux;

(c) the jury failed to give the applicant the benefit of the doubt when there were two accounts of the same event in the

evidence of Garda Leahy and Garda Nally, one favourable to the prosecution and one favourable to the applicant;

(d) the jury’s findings were against the run of the evidence;

(e) the jury returned its verdict after a relatively short period of deliberation given the complex legal and factual issues before

them.

In light of the case made by the prosecution and having regard to the defences raised, it is necessary to consider the issues

which arose at the trial concerning Jonathon Tuohy. No complaint has been raised in respect of the charge of the learned

trial judge to the jury in relation to the issue of provocation, which was the essence of his defence. The matters raised in

support of Ground 1 are pre-eminently matters which fall within the province of a jury to determine. The court notes that

the jurisprudence in this regard makes it clear that, generally, jury verdicts are not to be discarded lightly, and that this court

will normally interfere with a verdict only where it is shown that the verdict is wholly unreasonable, and not capable of being

supported by the evidence. It is insufficient for an applicant for leave, merely to contend that his conviction was at odds

with some portions of the evidence when the weighing of that evidence, the assessment of witnesses and the determination

of guilt or innocence, all fall to the jury itself to determine.

In the present case, firstly, the court finds that there was not merely sufficient, but an abundance of evidence upon which

the jury could properly convict the applicant of murder. Secondly, it was a matter for the jury to determine whether the

accused’s history of Attention Deficit Hyperactivity Disorder was, on the expert evidence, a material factor in the context of

the defence of provocation, and the extent of such materiality. It was also a matter for the jury to consider, assess, and draw

all appropriate inferences from, the evidence adduced as to the circumstances of the death of Mr. Carmody. Thirdly, if there

were inconsistencies between the evidence of Garda Nally and Garda Leahy as to whether Jonathon Tuohy was actually in

the course of assaulting Mr. Carmody at the time they arrived at the scene, this was a matter for the jury to determine. This

was not a question in reality of giving the benefit of the doubt to Jonathon Tuohy where an innocent explanation arises,

Garda Nally saying only that he did not see what Garda Leahy saw, not that what Garda Leahy saw did not occur. Fourthly,

whether one or other members of the Gardaí agreed as to the precise position of each of the accused over Mr. Carmody’s

body, whether Jonathon Tuohy had an iron bar in his hand in a half raised position, or whether a member of the Gardaí can

remember in which hand he was holding the bar, again these were all matters for the jury. Fifthly, as to the point at which or

when Jonathon Tuohy threw a garment from his hand and the precise sequence of events in what must have been a fairly

confused situation, this was clearly also a matter for the jury. If on any of the foregoing matters there were two different

accounts or inconsistencies between the evidence of witnesses, the jury was entitled to prefer the evidence of one witness

over that of another, and clearly carried out that exercise, where appropriate, in the present case.

Finally, it may well be that prosecution witness Noel Deveraux was less than candid as to his activities on the night in

question. There may have been inconsistencies disclosed in evidence as to his motives for being in the park at the time, or as

to the precise length of time he was there. The nature of any alleged activities on his part, whether with the deceased or

otherwise, and the effect of them on Jonathon Tuohy were again matters which fell to the jury to determine in the context

of the defence of provocation. Equally the “weighing up” of the evidence of Professor Fitzgerald on the effects of the

combination of medication, alcohol and illegal drugs on the accused was also a jury matter. So also were the weighing,

determining of the truthfulness, the relevance, the materiality and the significance of the evidence of all witnesses in the

context of the overall evidence in the trial matters for the jury to determine, and for them to decide the issue of provocation

in whatever guise, or of whatever nature. In that regard the Respondent relied on the evidence of Sergeant Burke to the

effect that when he came to the scene in the park very shortly after the events, the late Mr. Carmody’s trousers were fully

fastened and it was submitted that this was inconsistent with the claim made by Jonathon Tuohy that the deceased was

engaged in a sex act when he was disturbed in the bushes. It was for the jury to decide on any conflict between any of these

issues of fact.

It is not a matter for this court to review the allegedly short period of deliberation by the jury. No jurisprudence was cited in

support of the same. Even if it could be argued that in a highly exceptional case an allegedly extremely short period of

deliberation by a jury could be a matter raised upon appeal, the conclusions urged upon the court in that regard are not

relevant in the present case, since the jury deliberated for a period in excess of three hours, and no objective grounds have

been tendered in support of the contention that this period was, in any case, exceptionally short.

There was evidence before the jury as to admissions made by Jonathon Tuohy during the course of his detention to the

effect that he had beaten Mr. Carmody in the course of the robbery and also that he had lied at various points in the

interviews. The admitted lies told by the applicant were raised by the prosecution in the course of cross-examination, not for

the purposes of corroboration of the case against him, but rather as matters which undermined his credibility in respect of

the defence of provocation which had been put forward by him. The authority now relied upon, which was not the subject

of any requisition on the part of the Applicant, is the case of R v Lucas [1981] Q.B. 720. Neither on its own nor as adopted

into Irish law by the decisions in DPP v Brady (unreported 5th May 2005) and DPP v Cleary (unreported 3rd March

2006), is this English case determinative in any way. Moreover the lies told were not capable of having been told for an

innocent purpose. Furthermore, in the context of the overall case any suggested failure to warn the jury in respect of such

lies, in the face of the admissions made by Jonathon Tuohy in the course of the trial and in the context of the defence of

provocation, cannot be said to have led to an unfair trial or to any credible finding that the defence of Jonathon Tuohy was

in any way prejudiced.

In light of the foregoing the court considers that the decision of the jury was not perverse, nor was it at all unreasonable, or

against the weight of the evidence.

As to Ground 2 arising from the misconduct of Darren Wallace during trial and the disclosures in that regard to the

jury:

The second ground of appeal relates to an alleged error on the part of the trial judge in permitting the jury to become aware

of an incident of misconduct on the part of Darren Wallace. This episode occurred in the absence of the jury on day 9 of

the trial, and did not touch on pertinent matters at issue in this trial and thus it is submitted that this applicant was prejudiced

by the mention of these events in the presence of the jury on day 10. This ground will be dealt with below in the course of

the judgment on the application of the second applicant, Darren Wallace, on the same issue.

As to Ground 3, concerning the comments or remarks of the trial judge in the course of his recharge on the

meaning and effect of S.10 of the Criminal Procedure Act 1993:

Section 10 of the Act of 1993 (“the Act of 1993”) provides that where at the trial of a person on indictment the evidence is

given of a confession made by that person, and that evidence is not corroborated, the judge should advise the jury to have

due regard to the absence of corroboration. The section further provides that in so doing, it is unnecessary for a judge to use

any particular form of words.

After the judge’s charge to the jury, counsel for Darren Wallace raised several matters, as is not unusual, among them the

issuing of such a warning. The learned trial judge in reply stated that not only would he deal with the requisition but might

do so in a manner unhelpful to that accused. Counsel on behalf of Jonathon Tuohy then requested the trial judge not to

recharge the jury in relation to s.10 of the Act of 1993 if this might be done in a manner unhelpful or unflattering to his

client, being the person who had made the admissions while in detention. Counsel for Jonathon Tuohy thus argued that if

the court were going to add riders to any warning to the jury, then the matter should not be the subject of further mention.

The trial judge, in the exercise of his discretion, did recharge the jury and stated:

“Now going back to the warning I was asked to give you

about section 10. That relates to things that happened in the bowels of Garda stations. It is, of course, for you

to assess the Guards’ concern with this case and make your judgment on the credibility of their evidence and

their probity, and matters of that kind, as you will be making an assessment of the evidence of the accused.

The section was enacted by the Oireachtas. Mr. O’Carroll wanted me to tell you about it. But it was enacted

by the Oireachtas in the light of certain cases to deal with situations where juries had convicted wholly on the

evidence of confessions made in the police station. Now my criminal law textbook when I went to King’s Inn

all those decades ago, is so old that I was using Kenny’s Criminal Law. That spoke about the rarity of a crime

being committed with a policeman at one’s elbow. Now, this is the very rare case where the Prosecution is

mounted on the basis that a murder was directly witnessed and witnessed by police, instead of being brought

home by circumstantial evidence, which is the situation in most cases, and by admissions and by matters of

that kind.”

It is contended that this latter sentence undermined the defence being advanced on behalf of Jonathon Tuohy, and was an

intrusion by the trial judge in the jury’s role as the arbiters of the facts of the case. This contention is raised in the context of

his admission, that he had unlawfully killed Mr. Carmody, the question of whether it was murder or manslaughter being the

central issue to be decided by the jury in this case. Senior counsel, Mr. Nix, makes the case that the characterisation of the

matter as “murder” was an intrusion by the trial judge on the jury’s role and further that it should be read as giving the jury

the impression that it, the jury, should prefer the evidence of Garda Leahy over that of Garda Nally in relation to whether

Jonathon Tuohy had struck Mr. Carmody in their presence. It is essential, however, to point out that the words used by the

trial judge were that the prosecution is mounted on the basis that “a murder was directly witnessed and …”, this clearly was

simply the learned trial judge’s characterisation of the case being mounted by the prosecution being one of having been

witnessed. The purpose of the explanation and its sole context and intent was to distinguish the present case from one in

which the prosecution was mounted solely on admissions made in police cells and by direct contrast with such a situation

which section 10 of the Act of 1993 was intended to deal with. Moreover, no further requisition was made arising out of the

recharge. The remark of the learned trial judge was, in the view of this court, a legitimate explanation of the case. This in no

way constituted a foray by the learned judge into the province of the jury. Nor did it in any way prejudge their role in

assessing the evidence of the gardaí, and would not be likely to have influenced the jury in the manner contended for on

behalf of the first applicant.

The Application for Leave to Appeal of Darren Wallace:

The court now turns to the grounds raised by the second named applicant.

As to Ground 1 alleging that the trial judge failed to accede to an application for separate trials:

It is submitted on behalf of Darren Wallace that a separate trial should have been ordered by the learned trial judge, which

was sought, but refused, prior to the trial itself. Mr. O’Carroll, senior counsel, submits that his client was prejudiced in his

defence at the trial as a consequence of statements made by his co-accused against the applicant in the course of interviews

with gardaí. Further, the prosecution case was that both applicants were acting as part of a joint enterprise or common

design. The background circumstances and the facts of this case have been outlined earlier. Counsel concedes that, in so far

as the application made prior to the date of the trial is concerned, the judge hearing the application does have a discretion, to

be exercised judicially, to refuse such application. However, he contends that even though that application was not then

successful, there is a residual discretion in this court to revisit the matter upon appeal, having regard to the prejudice which

his client suffered and which manifested itself during the course of the trial. This was based, not only upon the admissions in

interview made by the co-accused Jonathon Tuohy, but also on the medical evidence of the ADHD condition from which

Jonathon Tuohy was suffering, his self harm, the medication which he self administered and the combination of these with

ecstasy tablets. Having regard to the totality of the evidence arising during the course of the trial, all of which redounded to

the disadvantage of Darren Wallace, it is contended that it was appropriate that there should have been separate trials.

While there is undoubtedly a jurisdiction in this court to review the entirety of the trial, including any claimed issue of

prejudice arising by virtue of the fact that there was a joint trial, the contention that the second named applicant was

prejudiced in his defence as a consequence of statements made by the first named applicant in the course of an interview is

not borne out by the transcript. There was no risk or any likelihood of a miscarriage of justice occurring as a result of a joint

trial. The learned trial judge was most careful both in the course of the trial when necessary, as on Day 15, and again in his

charge to the jury, to explain clearly and in the plainest language the obligation on the jury to deal with each charge

separately, to consider the evidence separately in relation to each of the accused, and to distinguish one accused from the

other. Not only did he so direct them, but he also reminded the jury of the rule that the evidence against one accused is not

evidence against another. In his charge to the jury the learned trial judge also pointed out “any admission or the fruits of an

interview in relation to one accused are only to be considered in relation to that accused and not in relation to the other”, and

clearly and specifically emphasised this, while at the same time clarifying that anything said by any witness, including the co-

accused, in the course of the trial itself, properly formed part of the overall evidence to which the jury was entitled to have

regard.

Moreover, the question as to whether or not there should be joint trials, is pre-eminently a matter which lies within the

discretion of the trial judge, exercised judicially, having regard to the circumstances in any particular case. Apart from the

application made on a date prior to the trial, no further application was made at the commencement of the trial. It is not a

matter for this court to intervene when that discretion has been properly exercised, as this court considers was done, unless

it has been established that the refusal would have, as its consequence, that Darren Wallace would be prejudiced in his

defence which this court, having regard to the foregoing matters, does not accept: a fortiori when, as here, it has not been

established that such prejudice to the applicant’s defence did exist, or that any evidence was improperly tendered or wrongly

admitted in such circumstances as impermissibly to prejudice the fairness of the trial.

As to Grounds of Appeal Numbers 2, 3, 5 and 6 concerning the Admissibility of Evidence:

These grounds concern a ruling made by the learned trial judge in respect of the admissibility of certain evidence, and

although they occupy a very substantial portion of the written submissions filed, Mr. O’Carroll very fairly encapsulated the

arguments concerning these grounds in an appropriately pithy manner. The “voir dire” essentially was concerned with the

admissibility of certain items of evidence, having regard to the alleged manner in which Darren Wallace was detained; the

allegation was to the effect that he was deprived of access to food and to a solicitor of his choice; there was also an alleged

failure to photograph, record and preserve certain exhibits, in particular the VISA receipt and a bus ticket belonging to Mr.

Carmody as well as an ATM bank card: and other matters alleged to affect the admissibility of evidence. The “voir dire”

lasted the entire of day 9 of the trial and involved the examination and cross-examination of twelve garda witnesses, of

Darren Wallace himself, and of the solicitor who had had both a telephone consultation with him as well as a personal

consultation with him in the garda station, while Darren Wallace was in custody.

It is contended firstly that the gardaí on duty at Henry Street Garda Station adopted a “minimalist view” of their duties in

regard to the making of entries in the custody records and to maintaining an inventory on the fruits of the search of Darren

Wallace while in custody. It is also alleged that he was not offered breakfast at a proper time, and when it was offered it was

unacceptable because it was not accompanied by a knife and fork, with this omission being the basis for an allegation that

the gardaí thereby humiliated him. It is also alleged that a Detective Garda Hogan had a conversation with Darren Wallace in

his cell prior to the interview at 1.32 pm and also in a yard while Darren Wallace was having a cigarette, and that he said to

the applicant “you should admit to robbing him, that is the only way I can see out for you, admit to robbing him otherwise

you are on your own and you know your mother and your sisters are out there and your mother is roaring crying”. The

suggestion was that the detective was thereby seeking to induce Darren Wallace into making certain admissions. This was

denied by Garda Hogan whose version of events was corroborated by other garda witnesses. In the course of his cross-

examination by counsel for the prosecution, however, it became clear that even if this had occurred in the manner alleged by

Darren Wallace, it had not had any such effect or any effect on him, as the Applicant exercised his right to remain silent in

large tracts of the interview when he felt minded to do so, and made no admissions. A further allegation was made that the

VISA receipt and the bus ticket were not in the possession of Darren Wallace when he was taken into custody and searched,

and he asserts that they were not in his pockets, it being the case that the only property he had was what he turned out of

his pockets upon being requested to do so. Several garda witnesses gave evidence that these two items had come from his

pockets. Finally, there was an allegation of undue delay on the part of An Garda Síochána in charging the applicant and

bringing him before the District Court, subsequent to his release from detention under the provisions of s. 4 of the Criminal

Justice Act, 1984. No evidential basis for this emerged during the “voir dire”. It also emerged in evidence that Darren

Wallace had made no complaint to the gardaí on any of these matters, either directly, or through his solicitor.

In the course of the ruling on this “voir dire”, the learned trial judge found the items of evidence admissible, and having

regard to the range of issues raised on behalf of Darren Wallace in the course of the “voir dire”, the learned trial judge also

found in favour of the prosecution on these, including the validity of the arrest and detention of Darren Wallace; the fact

that a Notice of Rights was given to him and explained to him in ordinary and simple language; that his entitlement to a

solicitor was made known to him; that his interview while in detention was proper; that he was cautioned; that the

Regulations were adhered to; that he was treated properly; that there were no inducements or threats made to him of the

type asserted: and that the search of Darren Wallace was proper.

The learned trial judge ruled in favour of the prosecution on all the above matters and on several others. In particular, in

relation to the major conflict between Darren Wallace and Detective Garda Hogan, on the question whether the garda had

sought to induce or threaten Darren Wallace, to change his story, the learned trial judge accepted, as he was entitled to, the

evidence of Detective Garda Hogan, stating that he was satisfied that all the above matters had been established to the

standard of beyond reasonable doubt. As concerns the question of the provision of breakfast, the learned trial judge

considered the regulations in that regard not to have been breached, and even if they had been technically breached, such

breach was both excusable and excused.

All the issues arising on this “voir dire” fell to be resolved on the basis of an assessment of the evidence of the various

gardaí and the evidence of Darren Wallace – and to a much lesser extent that of his solicitor, whose evidence did not in

reality contradict that of the various gardaí on the matters on which he gave evidence. The learned trial judge was fully

entitled to accept or reject the evidence of any one witness, or to accept part of the evidence of one or more.

This court finds no grounds upon which the learned trial judge could be criticised in any respect in relation to his conclusions

on the “voir dire”, or arising from the fact that, in consequence, he admitted certain evidence, which he was wholly entitled

to admit, there being no credible grounds put forward for ruling that any of the evidence admitted ought have been excluded.

The learned trial judge, being entitled to make the ruling which he did in relation to the admissibility of evidence and on the

other issues raised in the “voir dire”, no error in principle has been demonstrated. The submissions made under these

grounds in reality go to the evidential weight to be given to the exhibits and do not bear on the question of their admissibility.

As to Ground No. 7 based on the allegation that the learned trial judge wrongly refused to sever the robbery and

murder counts:

It is contended that there was prejudice to Darren Wallace insofar as the refusal to sever the count of robbery from that of

murder had as a consequence that extraneous material in respect of one count coloured or would be likely to colour the

thinking of the jury in trying the applicant for murder, or otherwise confuse them, and furthermore that the jury, in finding

the applicant guilty of robbery, might feel that they had to proceed also to find him guilty of murder. The learned trial judge

had refused the application to sever the two counts on Day 2 of the trial, noting that the robbery concerned two items of

personal property, and pointing out that he routinely directs the jury that they must be persuaded to the standard of beyond

reasonable doubt of the guilt of an accused on each count, and also noting his view that juries are well able to discriminate in

such matters.

It is the view of the court that this ground is devoid of merit. A simple review of the charge to the jury establishes how

clearly the learned trial judge did in fact direct on this very issue, and clarified for them in plain language all the applicable

legal rules concerning each count and the jury’s obligations in that regard. This has already been referred to in part, under

ground number 1 above. No error in principle can be attributed to the learned trial judge in respect of his decision to refuse

to sever the two counts, which was also in accord with commonsense and reason.

As to Ground of Appeal No. 9: Insanity

Under this heading, it is argued on behalf of Darren Wallace that the learned trial judge erred in law in failing to charge the

jury to the effect that the defence of insanity was open to them in relation to Jonathon Tuohy. On this issue the court has

two observations. First, the learned trial judge found and stated in his charge that the question of insanity did not arise in the

case. Secondly, it is not appropriate for the second named applicant to contend that the learned trial judge ought to have

advised the jury that the first named applicant was potentially insane, since it was not a ground relied on by the first named

applicant, there being no evidence given at the trial to support any contention that the first named applicant was in fact

legally insane. Such medical evidence concerning ADHD as was adduced related solely to the issue of provocation raised by

that applicant. That condition, being different than “insanity”, is dealt with under the next heading and not to any issue of

insanity.

As to Ground of Appeal No. 10 and the question of common design:

It is submitted that there was a failure on the part of the learned trial judge to direct the jury that they must decide the case

in the light of the evidence as to the nature of the common design and as to what was within the contemplation of the parties

relative to that common design. In reality this ground of appeal is related somewhat to the last ground, in that one of the key

elements raised by this ground is the nature of the medical condition of the applicant, as well as its treatment, which Mr.

O’Carroll suggests should be considered as being close to a form of insanity.

Mr. O’Carroll’s submission can be summarised as follows. In the present case there was evidence that Jonathon Tuohy

suffered from ADHD, and was prescribed the drug Ritalin for its management and control. The nature of the ADHD

condition meant that Jonathon Tuohy was impulsive and had an explosive nature which could manifest itself suddenly.

Jonathon Tuohy had consumed alcohol and illegal drugs and in consequence of the nature of the provocation, he had

responded explosively and had gone off on a frolic of his own, to which Darren Wallace had not subscribed. According to

this argument, Darren Wallace did not know that the co-accused suffered from the condition, and did not know that he was

on medicine, and did not know that the condition ADHD could lead to volatility upon provocation. Having regard to the

evidence, it is submitted the learned trial judge wrongly failed to recharge the jury when requested, on the nature of and as

to the separate elements of common design, Mr. O’Carroll relying on the decision in H. v Gatrix [2004] CLR, which held

that it was a matter for the jury to decide what, if any, common design was applicable and if there was a common design

what it was, and was what was done within the contemplation of the parties, in the context of that common design. Mr.

O’Carroll submits that the events which occurred could not have constituted a common design, and the jury should have

been charged accordingly.

Counsel for the Director of Public Prosecutions argues that the question of common design applies whether an accused was

in the whole of his health or suffering from some medical condition. Darren Wallace was not suffering from any medical

condition and was not affected by the condition of Jonathon Tuohy as to what he, Darren Wallace, had agreed or

acquiesced in doing. It was at all times open to either accused to argue that the other’s actions went outside the scope of the

common design. However the charge to the jury had been exemplary in its clarity in that regard.

The Court agrees that the real issue for consideration under this heading is whether the charge to the jury was sufficient on

the issue of common design. The jury was entitled to consider and accept or reject the medical evidence as to the manner in

which ADHD might affect a person having that condition, and as to such a person’s reactions to situations. The jury was

also entitled to accept or reject the contention of provocation raised by Jonathon Tuohy, and clearly in the present case the

jury rejected the case made in that regard. The jury was also fully entitled to consider what it was that Darren Wallace had

agreed to be involved in.

The court has considered the charge of the learned trial judge to the jury which is to be found at day 19 of the trial, which

commenced on a Friday and continued on the following Monday. The charge of the learned trial judge outlined in very clear

and comprehensive terms the principles applicable to the issue of common design, which extended over three pages of

typescript, dealing with both the liability of one party for the acts of another within a common design scheme, with

appropriate examples from other walks of life, and giving guidance to the jury as to how they might identify the existence of

such a common design.

Moreover, section 4 of the Criminal Justice Act, 1964 provides:

“4.—(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person

intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

(2) The accused person shall be presumed to have intended the natural and probable consequences of his

conduct; but this presumption may be rebutted”.

An intention to cause serious injury is enough. The manner in which the rules of the common law with regard to common

enterprise are to combine with this section appears from the judgment of this court, delivered by Denham J in People (DPP)

v Doohan [2002] 4 I.R. 463. It was a matter for the jury to decide on what the common enterprise was. Clearly, the jury

rejected the exculpatory accounts given by the two applicants, as accused, in evidence. The trial judge’s charge to the jury

was in accordance with recent judgments of this Court, on this issue, such as The People (Director of Public Prosecutions)

v Doohan [2002] 4. I.R. 463; The People (Director of Public Prosecutions) v. Roche (Court of Criminal Appeal,

Unreported, 28th July, 2004). While counsel for Darren Wallace suggested in his requisitions that the trial judge ought to

give further clarification to the jury on the question of common design, the learned trial judge did not in the exercise of his

discretion accede to this request. The court is satisfied that the charge of the learned trial judge in this case was correct in

law and appropriate in the circumstances of the present case and he did not commit any error in principle by not recharging

the jury in accordance with the requisition of counsel for Darren Wallace, having properly exercised his discretion not to do

so.

Ground of Appeal No. 8 of the second named applicant and Ground of Appeal No. 2 of the first named applicant:

These common grounds of appeal concern events arising after the termination of the “voir dire” referred to above, on Day

9, when the learned trial judge had already risen, and his subsequent comments on Day 10 of the trial. In essence, it is

complained that the trial judge should not, in the presence of the jury, have dealt with the outcome or consequences of his

finding on a complaint made, which the learned trial judge accepted as established, having re-sat and heard evidence that

Darren Wallace, as he was leaving court on Day 9, had spat on Garda Caragh Leahy. Having found the incident had

occurred as contended for, the learned trial judge left over the matter until the following morning and warned that he would

expect certain undertakings to be available from Darren Wallace at that stage, failing which he indicated what course of

action he proposed to adopt.

On the morning of Day 10, the jury being already in court, the learned trial judge asked if those undertakings as to future

conduct were available, at which stage it was submitted by counsel on behalf of Darren Wallace that the matter should be

dealt with in the absence of the jury. After further enquiry as to the availability of the undertakings, and counsel having

repeated his concern as to the matter being dealt with in the presence of the jury, the learned trial judge stated:

“It so happened the jury weren’t here yesterday afternoon but Garda Leahy was spat at quite publicly and a

finding of fact was made by me to (sic) that regard.”

Counsel for Darren Wallace then indicated he was in a position to give an undertaking that nothing of the same nature would

happen again in the course of the trial, and that undertaking was accepted by the learned trial judge. The trial then

continued.

It is contended, in reliance on the judgment in DPP v Hourigan and O’Donovan, (unrept’d., Court of Criminal Appeal, 19

March 2004), that this comment should never have been made in the presence of a jury, that it was prejudicial, that it

breached the principle of justice not only being done but also being seen to be done, and that justice was not done by

making these highly adverse comments in the presence of the jury, who would have their minds adversely affected by it. On

behalf of Jonathon Tuohy, Mr. Nix argues that his client too was adversely affected by these comments, in that he would in

effect be “tarred with the same brush” or would be seen by the jury as being the type of person who would be in the

company of someone who would carry out the spitting acts found to have been done, and would thereby be prejudiced

before the jury in his defence.

Counsel for the Director of Public Prosecutions argues that the complaint could not, in reality, be as contended for. He drew

the court’s attention to the fact that no application had been made on behalf of Darren Wallace on day 10 or later to

discharge the jury, which – had it been considered to be as serious a matter as was now contended for in hindsight – would

have been the likely application made. Nor was there even a suggestion made in the course of submission or argument that

there was or could be any prejudice to Darren Wallace, nor was any application or even any contention made that he could

not continue to receive a fair trial, and no requisition was made to give any warning to the jury. Further counsel for the DPP

argued that if the incident had occurred before the jury, the position would have been no different. He submitted that the

case of DPP v Hourigan and O’Donovan, supra., was not a germane authority, as in that case there was a clear attempt to

bolster the evidence of a key witness in the trial, which had no equivalence here.

The court does not accept that the remarks complained of could reasonably be classified or taken as having interfered with

either applicant’s right to a fair trial. In the context of what occurred, the matter was quickly disposed of and never

mentioned again as something requiring any further comment. As occurred in The People (Director of Public

Prosecutions) v. Dermot Byrne (Court of Criminal Appeal) (ex tempore), 24th February, 2003, the court is satisfied, that

the trial judge had to exercise his discretion as to the course of action which should properly be adopted in relation to

ensuring proper behaviour in court.

It might be said of course that the reference by the trial judge in the presence of the jury to this matter was extraneous to the

trial itself. Even if this was a ground upon which the applicants, or either of them, might have succeeded in this application,

and the court is not at all persuaded that it is, nevertheless, having regard to the abundance of facts and evidence upon

which the applicants could have been and were found guilty, the court considers that the proviso attached to 3(1)(a) of the

Criminal Procedure Act, 1993 is apposite in the circumstances of this case. Under this provision, the court may affirm a

conviction and may do so “notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour

of the appellant if it considers that no miscarriage of justice has actually occurred”. Taking all the evidence as a whole, the

court concludes that the evidence presented and proved by the prosecution outlined a picture of guilt in respect of each of

the applicants which was sufficiently convincing for the jury quite properly to have convicted both on all charges, and that

no possible miscarriage of justice occurred as a result of the complaint raised on these common grounds.

Having regard to the foregoing findings, this court refuses the applications for leave to appeal.