Court of Criminal Appeal dismisses appeal where applicant's good character was properly put in issue by defence counsel.

COURT OF CRIMINAL APPEAL

CCA 69/08

Finnegan J.

Budd J.

Hanna J.

BETWEEN

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

RESPONDENT

.V.

KIM KAVANAGH

APPLICANT

Judgment of the Court delivered on the 24th day of July 2008 by Finnegan J.

The Offences

On the 3rd April 2006 between 6 and 7 p.m. a robbery took place at a pharmacy on Manor Street, Dublin 7. Two men entered the

pharmacy one carrying a hand gun and the other a screwdriver. Both had their faces covered and were wearing surgical gloves. Staff

were forced to open the drug safe and a large quantity of drugs were removed some of which were placed in two plastic bags. The till

was emptied. The mobile phones of two members of staff were taken. The purses of two customers were taken. The value of drugs

taken was €950 and the amount of cash taken €720. Two members of staff and two customers were forced into a staff toilet at the

rear of the premises. The two men then made their escape.

A security man at nearby premises saw the two men leave and pursued them but gave up the chase when a gun was produced. By

this time Gardai were on the scene. They saw the two men get into a black Volkswagen Golf motor car and one Garda noted the

registration number as 99 KE 7765. The driver of the car was a blonde haired female who the prosecution alleged was the applicant.

The car sped from the scene and was pursued by a Garda car containing an off-duty Garda and two uniformed Gardai with its blue

lights flashing and its siren sounding. A Garda who approached the car on foot had a gun pointed at him by the front seat passenger

and he threw himself to the ground. The Golf was impeded by traffic and was held up on a number of occasions but continued to

attempt to avoid apprehension. It drove through two sets of red traffic lights. At North Brunswick Street the Golf stopped and two

men emerged and ran from the same in different directions. They were pursued and arrested. The car with its driver escaped.

Arrest was resisted by each of the men and in one case that resistance was particularly violent and included the gun being held to

the head of the arresting Garda.

Shortly thereafter the Golf was seen near Richmond Apartments by an occupier of an apartment. A blonde haired female emerged from

the car with a black bag and was about to dump the same when challenged by the resident. She in fact dumped the bag around the

corner and out of sight of the resident. The bag was found by the Gardai and it contained some of the stolen drugs. When she

returned to the car he took photographs of her and the car. She locked the car and walked away. Shortly thereafter the car was

found by the Gardai locked and undamaged. It was seized. On a search the car was found to contain a quantity of drugs of the same

type taken in the robbery and a mobile phone belonging to a member of the pharmacy staff. The address of one of the arrested men

was searched and in the course of the search documentation bearing the name of the applicant was found including a mobile phone

bill with her number. Also found was a photograph of the man with a female who was later identified as being the applicant. The

registered owner of the Golf was the applicant. The applicant’s telephone number was called by one of the investigating Gardai who

asked her to attend for interview: the applicant agreed to do so but did not in fact attend. She was arrested on the 22nd April 2006.

Arising out of these events the applicant together with the two men were charged with offences of robbery contrary to section 14 of

the Criminal Justice (Theft and Fraud Offences) Act 2001. The applicant was also charged with two offences of impeding

apprehension or prosecution contrary to section 7(2) and 7(4) of the Criminal Law Act 1997 one offence relating to her co-accused

Philip Tormey and the other to her co-accused Jason Mahoney. She was also charged with an offence of dangerous driving contrary

to section 53 of the Road Traffic Act 1961 as amended by section 51 of the Road Traffic Act 1968 and section 3 of the Road Traffic

(Amendment) Act 1984. The applicant was found not guilty on the offences of robbery and the offence under the Road Traffic Acts

but was found guilty of the two offences of impeding apprehension or prosecution contrary to section 7(2) and 7(4) of the Criminal

Law Act 1997. On each of the offences of which she was found guilty she was sentenced to a term of two years imprisonment the

terms to be concurrent.

The Appeal

The applicant applies to this court for leave to appeal against both conviction and sentence. In relation to conviction thirteen

separate grounds are raised but at the hearing before this court the appeal was pursued on the following five grounds only:-

1. The learned trial judge erred in law or on a mixed question of law and fact in permitting the Director of Public

Prosecutions to adduce evidence of the circumstances of the arrest of the applicant’s co-accused, not before the court,

which said evidence had no probative value in respect of the offences charged against the applicant or, in the alternative

where any probative value the said evidence had was exceeded by its prejudicial effect arising, in particular, from the

detailed evidence given about the extreme levels of aggression and violence displayed by Philip Tormey whilst being

arrested.

2. The learned trial judge erred in law or on a mixed question of law and fact in making adverse and prejudicial comment

on the accused during her evidence.

3. The learned trial judge erred in law or on a mixed question of law and fact in refusing the defence application for a

discharge of the jury having made adverse and prejudicial comments about the accused and her evidence in the presence

of the jury.

4. The learned trial judge erred in law or on a mixed question of law and fact in refusing to permit the defence to call as a

witness Dr. Brian Glanville, Consultant Clinical Psychologist.

5. The learned trial judge erred in law or on a mixed question of law and fact in refusing to discharge the jury when

counsel for the Director of Public Prosecutions, having successfully sought the exclusion of Dr. Glanville as a witness,

subsequently cross-examined Ms Kavanagh on information obtained from Dr. Glanville’s reports. The learned trial judge

further erred in law or on a mixed question of law and fact in allowing counsel for the Director of Public Prosecutions to

introduce prejudicial material by way of cross-examination.

It is convenient to deal with grounds 2 and 3 together and grounds 4 and 5 together.

Ground 1

Garda Aidan Murphy gave evidence of the chase of the Golf motor car up to the point where the applicant’s two co-accuseds exited

the same and continued to make their escape on foot. At that point an application was made to the judge by counsel for the

applicant that further evidence of the chase and arrest of the co-accuseds should not be given in evidence it being irrelevant in

relation to the applicant. The arrest of one co-accused was attended by particular violence. The evidence it was contended was

irrelevant and prejudicial. The learned trial judge held that the evidence was part of the events that constitute the offences and the

facts of the day and that the prosecution were entitled to lead it. The offence charged against the applicant was that she acted in a

manner designed to impede the apprehension and prosecution of her co-accuseds while the evidence proposed to be given related to

the co-accuseds it would give the jury a proper picture of what occurred on the day. The learned trial judge did not see the evidence

as prejudicial to the applicant. Thereafter three witnesses gave evidence of the arrest of the co-accuseds.

For the applicant it is submitted that the evidence not tending to prove or disprove whether the accused committed the act with

which he or she is charged was irrelevant and inadmissible. Alternatively even if the evidence was admissible its prejudicial effect

outweighed such value and the learned trial judge had a discretion to exclude it: People (Attorney General) v O’Brien [1965] I.R. 142.

In this case it is submitted the discretion ought to have been exercised to exclude the evidence. For the respondent firstly it is

submitted that as the applicant and her co-accused were charged with a robbery during which significant threats of violence were

used then, notwithstanding that the co-accuseds had pleaded guilty, the chase and arrest of the co-accuseds form part of the

circumstances of the offence. Further a fact in issue was whether the co-accused Philip Tormey while in the Golf motor car and being

pursued pointed a hand gun at Garda Aherne who was attempting to apprehend all three co-accuseds. The prosecution case is that

that conduct must have been clearly visible to the applicant who was driving the Golf. A hand gun was used by Philip Tormey in his

attempt later to evade arrest.

It seems to the court that the evidence was indeed relevant. The applicant was charged with an offence of dangerous driving in

addition to the offences of robbery and impeding. The conduct of the co-accuseds evidenced an intention on their part to evade

arrest and supported the prosecution contention that the objective in the dangerous driving was to impede the arrest of the co-

accuseds, as having exited the car, they continued to attempt to evade arrest. The evidence was capable of being prejudicial but

the court is satisfied that it had probative value and that that probative value outweighed any prejudicial effect.

Grounds 2 and 3

On the fifth day of the hearing, the fourth day of evidence, the applicant gave evidence. During the luncheon adjournment the

applicant’s car was stolen and counsel drew this and the fact that the applicant was upset as a result to the attention of the trial

judge. That this was indeed the case appears from the transcript. The learned trial judge enquired of the applicant if she needed time

to compose herself and offered her a glass of water. She accepted the judge’s invitation to tell the jury why she was upset. Her initial

answers were not audible and she was exhorted by counsel to speak up. Notwithstanding this counsel had difficulty hearing her

answers which had to be repeated on a number of occasions. The applicant was subjected to a lengthy cross-examination which

continued throughout the afternoon; on three occasions she was required to repeat her answers. On the fifth day of evidence she

returned to the stand for cross-examination to continue. The learned trial judge wished her good morning and again exhorted her to

keep her voice up. Within a relatively short space of time she was required to repeat her answers on three occasions. On the fourth

occasion the learned trial judge addressed her as follows:-

“Ms Kavanagh, before the jury came out this morning and you were sitting in the courtroom, you were entirely composed

as I saw you and you have only resorted to this demeanour when you have come to the witness box. You would help

yourself greatly, frankly, if you spoke up to the jury. If you want to take a few moments to compose yourself again you

are welcome to do so.”

Counsel for the applicant, in the absence of the jury, immediately objected in the strongest of terms to the learned trial judge’s

intervention and applied to have the jury discharged. The learned trial judge responded to the application in the following terms:-

“Right. I am quite satisfied that what I have said to Ms Kavanagh is not anything of the moment that Mr Fitzgerald

suggests or anything approaching requiring the jury to be discharged. I am concerned that the accused is not doing

herself any service. I have – I did notice her on coming to court, into the courtroom this morning, and she seemed to be

entirely composed. And her persistence in looking away from the microphone and whimpering, for want of a better

description, is not helping her in getting across to the jury what it is she wants to tell them, because often times she is

simply not audible and not making sense. So for that reason I have my suspicion that a great deal of what is going on is

contrived but I would not for a moment suggest that in the presence of the jury. But what I did say was in an effort to

exhort her to try and listen to what she is being asked and to speak to the jury clearly. I had made the comment that she

seemed earlier in the morning composed. And if she wants time to compose herself I have no difficulty with that. But she

is frankly not doing herself a great service in, as I say, persisting in what is happening. Now do you want to take some

moments?”

Thereafter cross-examination and re-examination proceeded and in the course of the same the applicant had to repeat her answers

on five occasions.

On behalf of the applicant it is submitted that the learned trial judge’s intervention constituted the giving of evidence by him in that

the demeanour of a witness is a matter of real evidence and the demeanour of the applicant in the absence of the jury given in this

manner constituted the giving of evidence. A jury must act exclusively on evidence given in their presence in court including matters

seen by them in court. Further, evidence should only be given by a witness called for that purpose. The learned trial judge’s conduct

manifested to the jury a belief on his part that the applicant was giving testimony which was contrived, untrustworthy and not

credible. The intervention was particularly damaging coming in the course of a vigorous cross-examination where the applicant’s

veracity and credibility were put in issue. The learned trial judge did not warn the jury that they could disregard his comments if they

disagreed with the same.

It must be accepted that the intervention by the learned trial judge in the terms employed was unwise. He suggested that the

manner in which she gave evidence was contrived but not that it was untrustworthy or incredible. However it is also clear that the

intervention was prompted by a desire to ensure that the applicant’s evidence be heard by the jury and it is clear that there was a

problem with her being inaudible on a number of occasions while giving evidence. The impression created by the transcript as a whole

is that the learned trial judge was anxious that the jury should hear the applicant’s evidence.

In Willougby v Director of Public Prosecutions, unreported, Court of Criminal Appeal 18th February 2005, the applicant as a ground of

appeal relied on upon excessive intervention by the trial judge during the course of the evidence of a witness Professor Fitzgerald.

The court adopted with approval a passage from Archbold 2001 ed. at para. 7-81:-

“Interventions by the judge during the trial will lead to a quashing of the conviction:

(a) where they have invited the jury to disbelieve the evidence for the defence in such strong terms that the

mischief cannot be cured by the common formula in the summing up that the facts are for the jury, and that they

may disregard anything said on the facts by the judge with which they do not agree;

(b) when they have made it impossible for defending counsel to do his duty;

(c) when they have effectively prevented the defendant or a witness for the defendant from telling his story in his

own way”.

None of these considerations arise here and in particular in exhorting the applicant to give her evidence in an audible manner and

suggesting that the manner in which it was being given was contrived the learned trial judge did not suggest that the evidence should

be disbelieved. Regard must also be had to the learned trial judge’s charge as to the jury’s role in relation to the facts. He addressed

them as follows:-

“To the extent that I am the person in charge of the law equally you are the people in charge of the facts, and you

decide the case based upon your assessment of the facts that come to you from the evidence. No one can take that

from you, and it is important for me to emphasise that in the course of my remarks if I make reference or comment on the

facts, I stand, as has been said to you, like the other two barristers in the case who have spoken to you, that if what I

say makes some sense to you, helps you reach your conclusion, by all means take it on board and apply it to your view of

the case. If on the other hand you disagree with me on anything I say on the facts then simply say so. ‘I don’t agree with

the judge. He’s wrong. I have my view and that is what holds’”.

He went on to say:

“Then you eleven, having listened to all of the witnesses, watched in the witness box how they gave their testimony,

how they impressed you in their account of things. How they dealt with the probing questions of counsel on the opposing

side. And then listened to the best arguments that can be built upon all of that evidence. You go to your room and there

the eleven of you sit down and you will discuss, debate, analyse and ultimately come to an agreed conclusion”.

And

“In your deliberations you will be subject to your oath and that is ‘a true verdict give according to the evidence’. So it is

only what you hear in the witness box.”

The learned trial judge was not requisitioned on this aspect of his charge.

Counsel for the applicant relied on Willougby and also on Director of Public Prosecutions v. D O’S, unreported, Court of Criminal Appeal

28th July 2004: these are cases concerning excessive comment by the trial judge and of limited assistance in the present case.

Reliance is also placed on R. v. Butler [1999] Crim. LR. 595 which concerned comments made by the trial judge in his charge. It was

accepted that such comments must be appropriate for a judge and should not be the stuff of advocacy: the summing up should be

balanced. In this case, however, other than the comment to which objection is taken, there is no suggestion that the learned trial

judge acted other than properly or that he displayed partiality. In Director of Public Prosecutions v O’Toole, unreported, Court of

Criminal Appeal 25th March 2003 the trial judge commented on the plea of duress and the court found that it was probably clear to

the jury that the judge did not have much time for that defence. While the facts of that case are not particularly relevant it should

be noted that it was there held that any comment by the trial judge should be considered in the light of his charge as a whole or in

the circumstances of this case not just the charge but the learned trial judge’s conduct throughout the case in order to determine

how a jury might be affected. Counsel for the applicant has also referred us to R. v Iroegbu The Times 2 August 1988 where objection

was taken to a considerable number of interventions by the trial judge. Of one such intervention the Court of Appeal had this to say:-

“It must be said at once, in the view of this court, no such comment should ever be made by a judge in the course of

summing up even in a case in which, as prosecuting counsel told us was the position here, the manner or content of a

witness’s evidence appear to warrant incredulity. It is axiomatic that it is the function of the judge to remain, and to

appear to remain, objective, leaving the jury, in accordance with customary forms of direction, to decide the facts for

themselves. While the judge should, as he did elsewhere in his summing up, instruct the jury to ignore, if they disagree

with it, any view of the evidence which the judge may appear to express, it can never be appropriate for a judge to give

an express indication of his own disbelief in relation to the evidence of a witness let alone that of the defendant.

That said, however a single remark of that kind will not ipso facto render a verdict which accords with the judge’s

indication of view unsafe or unsatisfactory, and indeed this court does not consider that it did so in this case. Not only

did the judge give a customary form of direction at the outset, but throughout his judgment, in the passages above

mentioned and elsewhere, he repeatedly made clear to the jury not only that the issue was one of credibility, but the

decision was entirely one for them. While the court considers that, taken alone the indication complained of was one

which should never have been given, when the summing up is read as a whole we do not consider that the jury would

have been misled or improperly influenced by it”.

That in short this court is satisfied is the position here. The comment ought not to have been made. However taken in the context of

the trial as a whole and in the context of the learned trial judge’s charge and his conduct throughout the trial the comment objected

to does not render the verdict unsafe or unsatisfactory.

Grounds 4 and 5

The following passage occurred in the cross-examination of the applicant:-

“Q Now, Ms. Kavanagh, we were just dealing with how you were feeling after you were arrested on 22nd April?

A. Yes

Q. And you told us that you were having one of your panic attacks and that the doctor gave you some valium, is that

correct?

A. Yes

Q. Now just before I go on any further, you told us on Friday that you had been having these panic attacks for some

time, is that correct?

A. Yes.

Q. And it is correct, is it, that you originally started having them because you were using drugs, is that right?

A. No.

Q. No?

A. No.

Q. When you were 22 or 23 you began to use ecstasy and cannabis which brought on the panic attacks?

A. I thought that might have brought them on.

Q. Right. It is just that happened at about the same time, is that right?

A. Yes.

Q. Did you continue using drugs?

A. No.

Q. And yet the panic attacks continued?

A. Yes.

Q. And instead you began to use valium, is that right?

A. Yes.

Q. And that seemed to help?

A. Yes.”

In her direct evidence the applicant said that in her past medical history she had panic attacks and had been to hospital on several

occasions in relation to the same. She had been prescribed anti-depressants and valium by her doctor. She had attended Mr. Brian

Glanville, a psychologist, and had given him her medical history and her permission to make enquiries and gather information from her

medical attendants. In her evidence she described her reaction when her two co-accuseds got into the car as panic. The respondent

accepts that the passage quoted from the applicant’s cross- examination had its origin in reports of Mr. Brian Glanville, it being the

intention to seek to call Mr Glanville as a witness, which had been disclosed in compliance with the procedure outlined in Director of

Public Prosecutions v Kehoe [1992] I.L.R.M. 481 where O’Flaherty J. said:-

“This has been stressed over and over again in many cases, most recently in a decision of the Supreme Court in People

(D.P.P.) v. Egan [1990] I.L.R.M. 780. So it appears to the court that the correct approach where there is any doubt in

the matter, is for the defence to canvass the view of the trial judge in the first instance as to whether psychiatric

evidence is properly admissible, because the view of the court is that this was not a case for the admission of psychiatric

evidence, and it would appear to be, as far as criminal cases are concerned, properly confined to the matters already

mentioned such as the defence of insanity or the like”.

After the applicant had given evidence her counsel handed into court copies of two reports of Mr. Brian Glanville for the purpose of

ascertaining the view of the court whether his evidence was admissible. The prosecution objected to Mr. Glanville giving evidence of

his opinion on the basis that the matters canvassed in his reports are within the jury’s province. Counsel for the applicant contended

that the evidence which he was seeking to introduce was relevant to the applicant’s line of defence that when her co-accuseds

entered the car she panicked. The evidence of Mr Glanville would be that the applicant suffered from a number of psychological

disorders which would make her particularly vulnerable in particular situations as to her capacity to act in an ordered or rational way

so that it was less likely that she would react to that situation as would a normal person but would panic. The evidence was relevant

to the applicant’s credibility in relation to that line of defence. The learned trial judge relying on the decision in Kehoe ruled Mr.

Glanville’s evidence inadmissible.

Two issues arise:-

1. Was the learned judge correct in refusing to allow Mr. Glanville to give evidence.

2. Was the prosecution entitled to cross-examine on information obtained from Mr. Glanville’s reports in the circumstance

that the same were made available pursuant to the procedure approved of in Kehoe.

The first report of Mr. Glanville is dated 8th May 2007 and records the applicant’s family history, educational background and

relationship history. It also records her health history. She began to suffer from panic attacks at age 22 or 23, sometime after she

started to use ecstasy and cannabis. Soon afterwards she ceased using these drugs and has not done so since. She was treated by

her General Practitioner who prescribed valium and was referred to hospital for tests. The attacks became more regular and she was

referred to hospital again and was placed on anti-depressants which were of no assistance. She continued on valium. The frequency

of attacks reduced over the years and were then occurring one every two to three weeks. She suffers from ulcers. Psychometric

assessment was carried out with a view to identifying personality disorders and some of the major clinical syndromes. On the Clinical

Personality Patterns section of the tests she obtained moderately elevated scores the principal features of which were of a

depressive personality style: people with this style tend to be generally pessimistic and preoccupied with negative events, tend to

brood and worry unnecessarily, have strong feelings of inadequate and low self esteem and tend to be dependent on others to whom

they relate in a passive manner. They are vulnerable to being exploited by those upon whom they are dependent. On the tests a

significant level of anxiety was disclosed at a level of anxiety disorder and mild subclinical depression. The opinion of Mr. Glanville is

that given her personality structure the applicant would have found it difficult to refuse to obey the instructions of her co-accuseds.

The second assessment was carried out and the second report dated 3rd December 2007 deals with the same. On this occasion her

anxiety was in the severe anxiety range and she had a moderate level of depression. The depression was probably due to the pending

court hearing. The opinion is the same.

The court is satisfied that the reports could not be relevant to the guilt or innocence of the accused. While Director of Public

Prosecutions v. Paul Keogh was concerned with the defence of provocation the applicant nonetheless relies upon the same. The court

referred with approval to the judgment of Lawton L.J. in R. v. Turner [1975] Q.B. 834:

“Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to

react to the stresses and strains of life. It follows that the proposed evidence was not admissible to establish that the

defendant was likely to have been provoked. The same reasoning applies to its suggested admissibility on the issue of

credibility. The jury had to decide what reliance they could put on the defendants evidence. He had to be judged as

someone who was not mentally disordered. This is what juries are empanelled to do. The law assumes they can perform

their duties properly. The jury in this case did not need and should not have been offered the evidence of a psychiatrist

to help them decide whether the defendant was truthful.”

In the course of the judgment O’Flaherty J. said:-

“It is important to point out that Dr. Behan was not called to establish a defence of insanity, or any form of mental illness

or any form of derangement that might have occurred by the accused’s use of drugs and alcohol in regard to which it

appears he had become dependent. While the evidence of a psychiatrist is undoubtedly relevant and admissible in such

circumstances as it will be if the defence of diminished responsibility or such is given recognition in our law it is clear to

the court that Dr. Behan could not in this case give any relevant admissible evidence in relation to the state of mind, the

temperament and these other matters that are referred in MacEoin, that the accused could not do himself. But he

attempted to do so, and his approach, if it might be summarised, was to say that he had a great deal of experience of

people who had been through emotional upset, people who had become involved with drink and drugs, and so forth, and

that therefore, he was in a strong position to give a clinical pronouncement of the reality of the defence that the

accused man was putting forward”.

The court is satisfied that Mr. Glanville could not give any relevant evidence. This is not a case of insanity or any form of mental

illness. Further the defence put forward on behalf of the applicant was not that her will was overborne but rather that she was

unaware of the intention to commit a robbery or that a robbery had been committed when she drove her co-accuseds away from the

scene of the crime. In these circumstances the learned trial judge was quite correct to disallow the evidence of Mr. Glanville to be

led.

As to the second issue, at cross-examination counsel for the respondent could not know whether or not the learned trial judge would

admit the evidence of Mr. Glanville nor could he with any precision know the use intended to be made of his evidence if the same

should be permitted. The applicant consistently described her state of mind when her co-accuseds entered the car and demanded

that she drive off as one of panic. This must not be conflated, however, with the panic attacks referred to in Mr. Glanville’s reports

and counsel for the respondent could not know whether it was the applicant’s intention that this should be done. It is clear,

therefore, that in asking the questions objected to that there was no deliberate misuse of information contained in the reports. The

objection taken to the questions, which were not objected to at the time, is that the origin of her panic attacks was irrelevant to the

mental state of the accused at the time of the alleged offence. The questions elicited that the applicant in the past had used illicit

drugs thereby committing offences the effect of which was to blacken her character. On that basis an application to discharge the

jury was made and refused. The learned trial judge held that the documentation having being furnished to the prosecution it was

entitled to avail of the same.

The respondent submits that the documents having being furnished they could be relied upon for the purposes of cross-examination.

Further the respondent had “dropped her shield” which rendered admissible evidence relating to previous offending. The Criminal

Justice (Evidence) Act 1924 provides as follows in section 1(f):-

“A person charged and called as a witness in pursuance of this act shall not be asked, and if asked shall not be required

to answer, any question tending to show that he has committed or been convicted of or being charged with an offence

other than that wherewith he is then charged, or is of bad character, unless –

(2) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to

establish his own good character, or has given evidence of his good character, or the nature or conduct of the

defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution;

or

(3) he has given evidence against any other person charged with the same offence.”

Section 1(f)(3) is not relevant: while in her evidence she gave evidence that her co-accuseds had committed the

robberies with which she and they were jointly charged they had entered guilty pleas prior to her giving evidence and had

been sentenced: this was not “evidence against any other person charged with the same offence”.

In relation to Section 1(f)(2) in considering the corresponding provisions in the United Kingdom Bray J. in R. v. Ellis [1910] 2 K.B. 746

said:-

“It is the duty of the judge not to wait for any objection from the prisoner’s counsel, but to stop such questions himself,

and if by mischance the question be put, it is equally the clear duty of the judge to direct the jury to disregard it and not

let it influence their minds”.

In People (Attorney General) v Doyle [1943] 1 Frewen 39 at 41 it was held that a conviction may be set aside where an impermissible

question is asked or asked and answered. On the authorities on the corresponding provision in the United Kingdom Jones v D.P.P.

[1962] A.C. 635 and R. v Anderson [1988] Q.B. 678 if an accused discloses involvement in criminal activity the protection afforded by

Section 1(f)(2) is lost.

Counsel for the applicant cross-examined Detective Garda Brian Lyons. He first asked him about the extent of the criminal records of

the co-accuseds. The cross-examination then proceeded as follows:-

“Q. Alright. I see. Now, turning to Ms Kavanagh, on my instructions she has two road traffic convictions.

A. Yes. Nothing else. No.

Q. What age is she?

A. I will check her date of birth. She is 25 I believe, is she? 31.

Q. On my instructions before this instance she had never, apart from the two road traffic convictions, she had never

come to the attention of the Gardai before?

A. That is correct, Yes.

Q. It is also my instructions that she is not unlike, my instructions are, Mr Torney or Mr Mahony, she is not a heroin addict

or indeed does she have any addiction.

A. Yes, I would agree with that, Yes.

And later he was asked:

Q. So you have somebody, this woman who is 30, 31 years of age and at that time had not been in trouble with the

Guards apart from two Road Traffic offences.

Again in her own direct evidence the following took place:

Q. O.K. Tell us just a bit about yourself, you recall when Garda Lyons was giving evidence, I was asking him, I was putting

it to him that you may have a couple, two possibly road traffic offences, is that right?

A. Yes.

Q. And apart from that have you ever been in trouble with the Gardai at all?

A. No.

And again:

Q. Alright. Had you ever been arrested before?

A. No.

Q. Had you ever been in police custody before under any basis?

A. No.

Q. Had you ever had any significant dealings with the Gardai before?

A. No.

The court is satisfied from these passages from the transcript that the applicant had put her good character in issue and accordingly

the questions complained of were permissible.

Having regard to the foregoing the court refuses the applicant leave to appeal against her conviction.