Court of Criminal Appeal dismisses appeal on bias and hearsay grounds regarding trial judge conduct and evidence admissibility.

COURT OF CRIMINAL APPEAL

CCA Nos 241/06 & 242/06

Finnegan J.

de Valera J.

Hedigan J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR

.V.

THOMAS HICKEY AND JEREMIAH HICKEY

APPLICANTS

Judgment of Mr Justice Finnegan delivered on the 9th day of November 2007

The applicants are father and son respectively. They were each charged with an offence of conspiracy to defraud. The particulars of

the offence are that on a date or dates unknown between 1st August 1996 and 31st October 1996 they conspired with James

Sutton, Bryan Wilson and Andrew Wilson to defraud the Minister for Agriculture of a sum of money in the form of Herd Depopulation

Compensation by placing an animal infected with Bovine Spongiform Encephalopathy Disease (BSE) into the herd of James Sutton on

29th September 1996 dishonestly and knowing that they had no right to do so, with the intention of having cattle in the herd

destroyed by order of the Minister, so that such compensation would be paid. The hearing extended over twenty five days between

the 5th October and the 17th November 2006. The applicants, as was their entitlement, put the prosecution to full proof. Some

seventy witnesses were called in the course of the hearing. There were some forty four occasions when the hearing was disrupted by

legal submissions. The learned trial judge commenced her charge on the twentieth day and continued on the twenty first day of the

trial Towards the end of the twenty first day an issue as to contamination of the jury arose which was dealt with on the following day

after which the learned trial judge resumed her charge. On the 23rd day there were three interruptions to the judge’s charge which

together took most of that day. The twenty fourth day was taken up almost entirely with legal argument and submissions. Much of

the twenty fifth day was taken up again with submissions but also requisitions. These matters are recited merely to indicate that the

trial was not just lengthy and complex but that its course presented much more than the usual problems to the learned trial judge.

Each of the applicants sought leave to appeal which was refused and now seek leave to appeal before this court. The grounds relied

upon by each of the applicants are identical. At the hearing of the application the grounds were reduced to four and it is proposed to

deal with each of these in turn.

1. Bias

As framed in the grounds disclosed on the application this would appear to allege actual or subjective bias on the part of the learned

trial judge. At the hearing however it was made clear that the allegation was one of objective bias. In support of this ground the

applicants relied on the cumulative effect of six incidents which occurred in the course of the hearing.

(a) The evidence of Richard Lubey

Mr Lubey’s evidence was that towards the end of September 1996 the applicants’ trailer was left at his garage. The

learned trial judge asked how long the trailer had been there and he replied “I would say it could be four days, three or

four days.” It would appear that this information was new to both the prosecution and the defence. This occurred on the

eleventh day of the trial. An application was made for a direction on the sixteenth day of the trial on the basis that if Mr

Lubey’s evidence was correct the applicants could not have had the trailer at the time of the commission of the offence.

The application was not acceded to and the applicants say that this suggested bias. The evidence was inconsistent with

other evidence offered by the prosecution. The learned trial judge decided, this court is satisfied quite correctly, that the

inconsistencies thrown up by this evidence were matters properly to be left to the jury.

(b) The investigation into jury contamination

On the 21st day of the trial counsel drew to the judge’s attention information which had been obtained that one of the

jurors had been overheard discussing the case in a public house and had expressed the view that the applicants were

guilty. The learned trial judge required the Gardai to investigate this allegation and as a result of the investigation she

heard evidence from three witnesses. She was satisfied that the allegation was without foundation. The applicants

suggest that the investigation carried out by the learned trial judge was inadequate. In response to questions from the

court counsel for the applicants was unable to point to any inadequacy in the steps taken or to suggest any further steps

which could have been taken by the learned trial judge.

(c) Intimidation

On the 3rd day of the trial it was brought to the learned trial judge’s attention that a number of the jurors felt intimidated

and uncomfortable by the conduct of the second named applicant. On that morning he was standing at the door of the

court as members of the jury arrived and staring at them. Eight jurors in all complained. By the time the remaining four

jurors arrived the second named applicant had been moved. On three occasions in this context the learned trial judge said

that she would have to consider remanding the second named applicant in custody for the duration of the trial. These

comments, it is suggested on behalf of the applicants’, suggested bias. This court is satisfied that the learned trial judge

acted properly and in the light of evidence of intimidation given by a prosecution witness, Mr Sutton, it was prudent to

make the comments. Many judges would have adopted sterner measures.

(d) Re-examination of Mr Sutton

It is submitted on behalf of the applicants that in allowing Mr Sutton, a crucial witness, to be recalled and to be re-

examined the learned trial judge’s conduct of the trial suggested bias in favour of the prosecution. The Supreme Court in

The People (At the Suit of the Attorney General) v Frank O’Brien [1963] I.R. at 68, considered the discretion of a trial

judge to allow a witness to be recalled. Having extensively reviewed the authorities the court said:

“On this review of the authorities it seems to us (as already stated) that there was a considerable weight of opinion

in favour of the proposition that the trial judge has the power, to be exercised at his discretion, of recalling a

witness at any stage of the case, even after the jury has retired to consider their verdict; and that very little, if

any, of it was brought to bear upon the Court of Criminal Appeal in any of the English cases referred to. In this

respect, at least, Sir Matthew Hale appears to be without honour in his own country. Moreover, if I may say so with

all respect, justice in criminal cases is not the exclusive preserve of defendants. The Crown or Attorney General, as

the case may be, is entitled as prosecutor to a fair share. If circumstances can arise which will justify the relaxation

of a rule in favour of the defence, as was the opinion of the Court in Sanderson’s Case ((1953) 1 All E.R. 485), it is

surely possible that circumstances can arise which would justify its relaxation otherwise. We can see no distinction

in principle between allowing the reception of evidence after the close of counsel’s speeches, as was done in

Sullivan’s Case((1923) 1 K.B. 47), and allowing it after the summing-up.”

This court has regard to the course of the trial overall and is satisfied that it was in the interests of justice having regard

to that course that Mr Sutton should have been re-examined particularly as in this case such re-examination occurred

shortly after re-examination had been completed.

(e) The questioning by the learned trial judge of Mr Lubey

It is difficult to understand this objection. The learned trial judge asked a simple question to clarify how long the trailer

had been left at his premises and elicited the reply mentioned above. The applicants say the question ought not to have

been asked. The reply was of considerable assistance to the applicants’ case and was strongly relied upon by the

applicants. This court is satisfied that the judge’s question was appropriate to clarify Mr Lubey’s evidence and that it

inured for the benefit of the applicants and could not in any way suggest bias.

(f) The Spike Island statement

Counsel for the applicants introduced into evidence a statement made by the witness Mr Sutton at Spike Island and

which was in conflict with earlier statements. However portion only of that statement was opened to the jury. In error

the learned trial judge in her charge referred to a portion of the statement which had not been opened to the jury. She

corrected this. The court is satisfied that the learned trial judge adequately and appropriately corrected a simple error. It

is difficult to conceive how this simple error could suggest bias.

It is difficult to see how any one of the incidents relied upon or all those incidents in combination could satisfy the test

for objective bias – whether a reasonable person in the circumstances would have a reasonable apprehension that a party

would not have a fair hearing from an impartial judge: Bula v Tara Mines [2000] 4 I.R. 412 Denham J. at p.441. Applying

that test the court finds this ground to be without substance.

2. Reference by the learned trial judge to the Spike Island statement

This has already been dealt with above at 3(f). An error was made but appropriately corrected. The applicants have failed to satisfy

the court on this ground.

3. The learned trial judge’s charge was excessively protracted

The charge was completed over six court days and by virtue of a weekend intervening eight days separated the final remarks of

counsel for the applicants and the issue paper going to the jury. In considering this it is, however, important to have regard to the

interruptions to the charge which occurred. On day 19th day following the closing speeches and in advance of the charge submissions

were made by counsel on behalf of the applicants as to the contents of the judge’s charge and these continued for some little time

the following morning. The charge itself on the 20th day ran to just fifty pages of the transcript. There then followed the weekend of

the 10th and 11th November and the charge resumed on the 21st day, the 13th November. Approximately one quarter of the 22nd

day, the 14th November, was consumed by the issue of jury contamination. On the 25th day approximately one quarter of the day

was lost on the same issue. The 24th day was concerned with the charge for a small portion of the day only, the remainder of the

day being taken up with submissions and requisitions. The charge was completed on that day. Next it must be borne in mind that the

case had run over a protracted period with a large number of witnesses whose evidence was in almost every case vigorously tested

and challenged. There were numerous interruptions for submissions. All of this made the learned trial judge’s task all the more difficult

and resulted in the charge being overlong. The applicants rely strongly on a passage from R v Lawrence [1982] A.C. 510 at 519 per

Lord Hailsham (who was not himself noted for his brevity) at p.519:-

“The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally

applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is

often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by

copious recitations from the total content of a judge’s notebook. A direction to a jury should be custom-built to make the

jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and

the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as

to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a

correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary

facts”.

However the passage continues:-

“In the present instance there was only one issue of primary fact, the speed at which the cycle was travelling, and I

doubt whether a direction could have been faulted if the jury had simply been told that if they were satisfied that the

prosecution had proved that the accused had been travelling at a grossly excessive speed they were entitled to infer that

he had been driving recklessly and as a result had caused Mrs Crowther’s death, that if so they should convict, and if

they were not so satisfied they should acquit.”

Thus that case both as to the facts and the law was far from complex. It is important to note that however helpful Lord Hailsham’s

comments may be his views were obiter. The House of Lords set aside the verdict upon the basis that the direction given to the jury

stated the law too unfavourably to the defendant and was also somewhat confused as to the facts in relation to the trial and charge.

The trial lasted three days. The charge would appear to have taken an hour and a half. The passage relied upon by the applicants

should be read in conjunction with Lord Hailsham’s comments on the length of time between the commission of the offence and the

commencement of the trial, delays in the County Court in general and the prolixity which in His Lordship’s view then attended trials in

the County Court (all equally obiter). While Lord Hailsham was commenting on delays and the length of trials in general what the

House of Lords was in fact concerned with was an error by the trial judge in explaining driving recklessly to the jury and the general

confused nature of the charge and not the length of the charge as such. It is not suggested by the applicants that the charge was

confused in this case.

The applicants also relied on a passage from R. v Landy [1981] 1 W.L.R. 355 per Lawton L.J. at p.367:-

“A summing up should be clear, concise and intelligible. If it is overloaded with detail, whether of fact or law and follows

no obvious plan, it will not have any of the attributes it should have. This summing up suffered from the fact that the

judge was over conscientious. He seems to have decided that the jury should be reminded of nearly all the details of the

evidence and be directed as to every facet of the law which applied. He must have spent hours preparing his summing up

but in the end he got lost in the trees and missed the wood.”

This was indeed true in the particular case. However the ground upon which the appeal was allowed was that the trial judge had

failed to direct the jury correctly as to the meaning of defraud. While the charge was indeed diffuse it was accepted by the

prosecution that it was also seriously defective and the defects and the confusion rather than the length of the charge are the focus

of the judgment.

In neither of the cases relied upon was the length of the charge the basis upon which the appeal succeeded. In this case the court is

satisfied that the charge while overlong was not such as would confuse the jury either as to the law, the evidence or the inferences

to be drawn from the evidence.

4. The admission of evidence pursuant to the provisions of the Criminal Justice Act 1992, section 5

Mr Faughnan gave evidence that he was employed by Eircell Limtied. He had with him a document which comprised information

obtained from two different computer systems. One system gave details of calls from a number of specific mobile telephones. The

computer record was a record compiled in the ordinary course of business of his employer and he had the same in the form of a

computer print out. The purpose of his evidence was to show telephone traffic between the applicants and other persons alleged to

be involved in the conspiracy. There was no objection on behalf of the applicants to relevant extracts from the very lengthy and

detailed print out being given to the jury. The second computer gave details of the relevant base locations and that information

enabled the location at which the mobile phone was used on any occasion to be identified. Again the information contained in this

computer on the evidence was an ordinary business record. Mr Faughnan then gave evidence of obtaining a computer extract from

the second computer and abstracting from the same information as to the base stations through which each relevant item of

telephone traffic was transmitted. For ease of reference he added a column to the print out from the first computer containing the

information obtained from the second computer. The objection on behalf of the applicants is that this composite document is not one

which was compiled in the ordinary course of business but one which was prepared specifically for the purposes of the case.

The Criminal Evidence Act [1992] section 5(1) provides as follows:

“(5) 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 reasonable 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 a permanent legible form was

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

The court is satisfied that both computers contained records compiled in the ordinary course of business: section 5(1)(a) is complied

with. In relation to both computers the information was supplied by a person coming within section 5(1)(b) of the Act. In relation to

computer 2 Mr Faughnan did not take the information from the computer but a print out was taken from the computer by Mr Butler

who gave evidence to this effect. The evidence consisted of the two computer print outs. The document to which objection was

taken was merely an abstract from two very lengthy computer print outs and its effect was to abstract from the computer print outs

the relevant information. Of itself it was not adduced as evidence. What is required by section 5(1)(c) is that information in non

legible form be reproduced in permanent legible form and reproduced in the course of the normal operation of the reproduction system

concerned and the two computer print outs which were proved in evidence fulfilled this requirement.

In summary then having considered the submissions in support of each of the grounds of appeal relied upon this court is satisfied that

in each case the applicants have failed to establish any of the grounds of appeal. Accordingly leave to appeal is refused.