Court of Criminal Appeal reduced life sentence to fifteen years for attempted murder due to distinction from completed murder.

COURT OF CRIMINAL APPEAL

Kearns J.

Dunne J.

McMahon J.

[C.C.A. No. 129 of 2007]

BETWEEN

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

RESPONDENT

AND

DARREN LARKIN

APPLICANT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 19th day of December, 2008

Following a trial in the Central Criminal Court the applicant was convicted by a jury on 23rd April, 2007 of the attempted murder on 20th February, 2006 of

one Akef Alquasar at Leisureplex, Blanchardstown Shopping Centre, Dublin 15. The applicant was also convicted on that date of possession of a firearm

with intent to endanger life and possession of ammunition with intent to endanger life. The matter was put back for sentence until 4th May, 2007 when the

trial judge (De Valera J.) sentenced the applicant to life imprisonment in respect of the offence of attempted murder and to a term of twenty years in respect

of each of the firearms offences, all of the said sentences to run concurrently.

The applicant did not contest the evidence that Mr. Alquasar had been shot at the Leisureplex on the date in question, but denied that he was the person

who had shot him.

In so far as the conviction is concerned, the only ground of appeal is that stated in the Notice of Application for Leave to Appeal as follows:-

“The learned trial court erred in law or in fact or a combination of both in admitting the evidence of Sergeant Edward Carroll and Garda Paul

McManus of the purported identification of Darren Larkin from the CCTV footage on the grounds that such evidence was, in all the

circumstances, more prejudicial than probative. In particular the admission of such evidence restricted the ability of the defence to test the

credibility and accuracy of such evidence as the two witnesses are members of An Garda Siochana who knew the appellant and the evidence

should not have been allowed to go before the jury.”

In so far as the sentences are concerned, the applicant further argued during the course of the appeal before this Court that the trial judge erred in failing to

accede to the application by defence counsel not to hear evidence of the prevalence of gun crime in the Blanchardstown area prior to the sentencing of the

applicant and in attaching excessive weight or significance to the requirement of deterrence when structuring the said sentences. Counsel for the applicant

also argued that the sentences were in any event excessive and disproportionate having regard to the personal circumstances of the applicant and having

regard to the fact that his previous convictions were of a different and less serious nature and bore no similarity to the offences for which he was convicted.

BACKGROUND

The evidence at trial was that the injured party, Akef Alquasar, was working as a security guard at the Leisureplex in Blanchardstown in February, 2006.

Between 4 a.m. – 5 a.m. on 20th February, 2006 the applicant entered the Leisureplex armed with a sawn-off shotgun. Although the applicant’s face was

partly concealed, a portion of his face was visible and Mr. Alquasar gave evidence that he immediately recognised the intruder as the applicant, stating that

the applicant lived around the corner from where he lived and that he had known the applicant since he was five or six years of age. The applicant ran

towards Mr. Alquasar who shouted “Larkin you bastard you” at which point the applicant fired a shot from a distance of about seven or eight metres which

hit Mr. Alquasar on the side of the head. He heard his attacker saying “Got you, you cunt you”. Mr. Alquasar said he recognised the voice as that of the

applicant, saying he knew his voice very well. Despite having been hit, Mr. Alquasar dived behind a counter where bowling shoes were stored and began

throwing them at his attacker. During this time, the applicant was reloading the gun and although Mr. Alquasar continued throwing shoes at him the

applicant then fired a second shot at him before running from the building. Mr. Alquasar told the court he followed Larkin outside and shouted “Larkin, you

fucking bastard, I am going to get you”.

Under cross-examination, Mr. Alquasar confirmed there were bright lights in the admission area of the complex and inside also, and that while the

applicant’s face was partially concealed, he had a good opportunity to identify him and that he did in fact recognise him as Darren Larkin.

The evidence given at trial by Mr. Alquasar was supported in a number of respects by the evidence of Mr. Anthony Smithers who was playing the poker

machines in the Leisureplex on the morning of the shooting. He heard something which he had first thought was the sound of balloons bursting, but then he

heard shouting and screaming. He walked to the reception area and saw Mr. Alquasar throwing bowling shoes at another man. He saw that the other man

had a gun and had opened it. The evidence of Mr. Smithers was that the first shot had been fired but the second was faulty, and as the man then walked

back towards him he ran. He heard Mr. Alquasar shouting and throwing bowling shoes, and the man with the gun then got off a second shot. Mr. Smithers

gave evidence that as the attacker left, Mr. Alquasar chased after him and he heard Mr. Alquasar shouting “Larkin, you bastard, I am going to get you”. This

evidence was not contested by the defence.

Another witness, Mr. Andrew Kennedy, gave evidence of having seen a man with a gun enter the Leisureplex on the morning of the offence, but he said the

man had his face covered and he could not remember details of his clothing. Shortly afterwards he heard a bang and saw the man emerge and run to a car.

Part of the incident was captured on CCTV at the Leisureplex. Two gardai gave evidence to the jury that they recognised the applicant when the CCTV

footage showing the man entering the premises was played to them. It is the admission of the evidence of the two gardai that is the one ground of appeal

against conviction. The learned trial judge admitted the evidence in question at the conclusion of a voir dire hearing on the issue.

Sergeant Edward Carroll said that when he saw the film on 21st February, 2006 he recognised the man carrying the firearm as the applicant. Sergeant

Carroll said that he had worked as a garda in Blanchardstown District from 1995 to 2006 and that in the first four years of that period he was a community

policeman. He gave evidence that this role involved “a lot of interaction with the general public in relation to neighbourhood watch, schools programmes, a

lot of beat work and interaction with the community in relation to that”, and that he had done some more beat work and mobile patrols in the area in the

following years. Sergeant Carroll said he had constant interaction with the public in the course of his duties in Blanchardstown and that he had known

Darren Larkin for about ten years. He was one hundred percent convinced it was Darren Larkin in the footage that he had viewed. He confirmed at the time

he viewed the CCTV footage that he was aware that Mr. Alquasar had alleged that the applicant was his attacker and further confirmed, though only in reply

to a question asked on behalf of the applicant, that he had arrested the applicant on a prior occasion. This was said in the voir dire only.

Garda Paul McManus gave evidence that he viewed the footage from the Leisureplex on 3rd March, 2006 and he recognised the man who appeared to be

carrying a firearm as Darren Larkin. Garda McManus said he had served in the community policing unit of Blanchardstown Garda Station from September,

2003 to December, 2005 and most of his work was on the beat around the estates of Sheepmoor, Fortlawn and Whitestown. He said he recognised Darren

Larkin because he had known him from early in his period as a community garda in Blanchardstown. He stated in evidence: “As a community garda on the

beat you would bump into groups of youths hanging around on housing estates, as in every part of the country, and Mr. Larkin would have been one of

those youths”.

Having reviewed the various legal authorities, the learned trial judge ruled that the evidence of the three gardai could be admitted subject to one limitation.

The trial judge stated that none of the evidence of the gardai, with one exception, could have been considered to be prejudicial in the ordinary sense of the

word. He said the evidence of the gardai referred merely to knowing the accused generally, rather than specifically as a wrong doer, apart from the

exception where Sergeant Carroll said he had on one previous occasion arrested the applicant. The learned trial judge took the view that it would be wrong

of him to allow the witness to be eliminated from the case by reason of a question of that nature from the defence.

In the event only two of the three gardai were called to give evidence on the matter before the jury, Sergeant Carroll and Garda McManus, each of whom

gave evidence of having known the applicant through their general community policing activity.

In the course of his subsequent charge to the jury, the learned trial judge dealt with the identification issue in this case in the following manner:-

“You have heard evidence from many witnesses since the beginning of the trial but only the evidence from Mr. Alquasar, Anthony Smithers,

Andrew Kennedy, Garda Edward Carroll and Garda Paul McManus are central to the identification issue, the identification of the person with

the sawn-off shotgun. Akef Alquasar, Garda Carroll and Garda McManus – they all identified the accused as the man who entered the

Leisureplex. I should point out at this stage and it is important that this identification is properly what is called “recognition”. That is the

identification of a person already known to the witness and it should be contrasted with what I will call “simple identification” after the event of

a person previously unknown. This is what I might describe as a stronger form of identification and is still subject to the caution that I will be

giving you shortly and which is of very great importance in this case”.

The judge then went on to give an example of recognition evidence as opposed to identification evidence and noted that the evidence of Mr. Smithers and

Mr. Kennedy was not recognition evidence, although it did support Mr. Alquasar’s version of events.

In dealing then with the matters which are the subject of this appeal the learned trial judge said:-

“Then we come to the two gardai, first of all, Sergeant Carroll. He says he has known the accused for a long time. He was a garda in the

area. I am sure he knew lots and lots of people in the area for a long time but he knew the accused. He tells you that he identified him when

he was brought into the Garda Station to see the video you have seen. He was able to identify the accused from that. You must apply,

among other things; do you believe him and is his evidence accurate? But I must also add that you must bear in mind that when he came to

the Garda Station to see that video he knew that the accused had already been identified, identified in those terms “had already been

identified”. He was in the frame for this offence. That may or may not have influenced him, it is a matter for yourselves because you have to

decide is he telling the truth and is he accurate about what he says he saw. Similarly it applies to Garda McManus, he was also a garda in the

area, he knew lots of people in the area. He knew the accused, he knew him as well as did Garda Carroll. They both knew him very well. He

says he knew him for a long time. He comes in and he sees the video again. He also identifies the accused from the video. Again – and this

is important – he came in knowing that the accused had already been put in the frame, had been identified by somebody. When he looks at

the video he has that in his mind but he has come into court here under oath and gave evidence that he was able to identify the accused

from that video. It is a matter for yourselves ladies and gentlemen, to apply among other tests that I have said to you do you believe him and

can you rely on his evidence.”

In addition to these warnings, the learned trial judge also gave a warning to the jury in accordance with the principles enunciated by Kingsmill Moore J. in

The People (A.G.) v. Casey (No.2) [1963] I.R. 33. No requisition was made by the defence following the completion of the judge’s charge to suggest that

the warnings given by the learned trial judge in relation to the evidence of the garda witnesses was in any way inadequate.

RELEVANT LEGAL PRINCIPLES

At the outset the Court notes that neither side have disputed the proposition that video film is admissible during the course of a criminal trial to establish

identification of an alleged offender. In The People (at the suit of the Director of Public Prosecutions) v. Thomas Maguire [1995] 2 I.R. 286 the evidence

against the applicant comprised a video film taken by a security camera which showed a robbery, involving three men, taking place at a building society.

Still photographs from the film were given in evidence and it was alleged that two of the men on the video were the applicant and a co-accused. No evidence

was given in that case by any other person that they identified the applicant or his co-accused as being persons whom they recognised.

In delivering the judgment of this Court, Barron J. stated (at pp.289-290):-

“The use of video evidence in relation to the commission of crime where it is a record of the persons who committed the crime can be used in

two ways. It can be used in relation to the evidence of those at the scene and also in relation to the evidence of those who were not at the

scene.

If a witness at the scene can identify the persons concerned or some feature such as build, height, clothing etc. or can make no

identification of any sort, the video can be used:-

(1) To show whether or not the witness had a reasonable chance of making the particular identification, or

(2) To explain why the witnesses were unable to make any identification.

Where stills can be taken from which the persons can be identified by persons who were not at the scene, these may be used to support

evidence of identification. Such persons must indicate the opportunity which they have had to make such identification, for example whether

as a friend, workmate, acquaintance etc. They should also be permitted to indicate any feature which in their mind identifies the person with

the still taken from the video film.

Where a witness who was not at the scene gives evidence of identity based upon the video film is a police officer or some other person in

authority, the accused must be protected from obvious prejudice arising from the position of the person giving evidence. In general such

person would have gained his knowledge in the course of the execution of his duty as a police officer or person in authority. Such evidence is

admissible but clearly it should not be admitted where its prejudicial effect would outweigh its probative value. In any given case the need to

determine whether or not such evidence should be admitted will depend upon all the circumstances of the case. It is not appropriate that this

Court should seek to set down guidelines where the question does not come before us directly.

Even though the evidence of the video film is admissible, nevertheless the usual and proper warnings required in relation to evidence of

identification must be given to the jury. It must be made clear to the jury also that its function is to assess the credibility of the witnesses

and that, only where there is no independent evidence of identification, should it seek to form its own view of the identity of the accused.”

Before proceeding further, I venture to suggest that where Barron J. referred to the requirement to protect an accused from the “obvious prejudice” arising

from the fact that the person giving evidence is a police officer, he did not have in mind any issue of deliberate prejudice against an accused person felt

subjectively by a police officer in any given case. His concern related more to the circumstances from which the recognition evidence was derived and the

possibility that a jury might assume it was from prior criminal behaviour on the part of the accused. In the course of his judgment Barron J. referred to two

cases which graphically illustrate the difficulties which can arise. In R v. Fowden & White [1982] Crim. LR 588 evidence was given by a police officer and a

security man of identification of the accused with the person shown on the video film. It was held that it should have been excluded on the ground that its

prejudicial effect outweighed its probative value since the identifying witnesses knew the accused from a similar shoplifting case a week later and

accordingly the defence was deprived from testing the accuracy of the identification without causing prejudice and embarrassment. This case was to be

contrasted with R v. Grimer [1982] Crim. LR 674 where similar evidence of a security officer was held to have been properly admitted. In that case the

security officer had known the accused socially for a number of years and the possibility of prejudice or embarrassment did not arise in the same way.

Similar issues arose in The People (at the suit of the Director of Public Prosecutions) v. John Foley [2007] 2 I.R. 486. In that case the accused was

convicted before the Circuit Criminal Court of the burglary of a shop. The evidence against him depended on his identification from a CCTV system which

was fitted to the shop. It was agreed between the prosecution and the defence that, while there was a video recording, a still photograph taken from it would

suffice as evidence. A voir dire was held in relation to the admissibility of evidence of identification from the still picture. The prosecution proposed to call

two members of the gardai to identify the accused from the still picture. During the course of the voir dire one of the gardai stated that he came to know the

accused through his work and the other garda stated that while he also got to know the accused through his work he would also have met him outside of

that as well when he was off duty. The trial judge ruled that the prosecution could adduce evidence of identification by the second gardai but not by the first.

Subsequently, this garda gave evidence identifying the accused from the still photograph and when asked how he was able to recognise the accused said

that he had met and spoken to him on a number of occasions and when asked where he would have met him he said he would have met him if he came

into the station, on the streets, socially in town when he was off duty and further said that they would have acknowledged each other.

This Court again confirmed that evidence from a video or a still photograph taken from a video is clearly admissible against an accused when used to prove

his presence at the scene of a crime. It might not be used, however, against an accused if it would unfairly prejudice his right to a fair trial. Thus there

arises in every case a requirement to conduct a balancing exercise between the probative value of the evidence against the possible prejudice to the

accused, an exercise which can only be undertaken by examining the particular facts of each case. In that case the court was satisfied that the probative

value clearly outweighed the prejudicial value, from which it may be inferred that there is scope for the proposition that, notwithstanding that some element

of prejudice may arise in such cases, any risk of an unfair trial can be overcome by means of suitable warnings from the trial judge.

A review of the cases is incomplete without a reference to the decision of this Court in The People (at the suit of the Director of Public Prosecutions) v.

Kenneth Allen [2003] 4 I.R. 295. In that case a security video captured three raiders carrying out an armed raid on a fast food restaurant. The raiders wore

balaclavas and the video itself was of little use in identifying them. However, a still photograph was taken from the video which showed one of the raiders

leaving the premises having taken off the balaclava and the prosecution alleged that this identified the accused. This still photograph was shown to the jury,

but when the prosecution sought to call evidence from garda officers who could identify the accused as being the person in the photograph, such evidence

was objected to on behalf of the accused on the basis that it could be extremely prejudicial, as it could influence the jury to believe that the accused was,

in the well known phrase, “known to the gardai” and therefore, by inference, that he had a criminal record. In the circumstances, the photograph was put

before the jury with no further evidence to identify the person in the photograph as the accused. This Court declined to set aside the subsequent conviction

on the grounds that the warning given by the trial judge in the course of his summing up to the jury was inadequate.

I have some difficulty in understanding the rationale behind the ruling of the trial judge in that particular case due in no small measure to the fact that the

report (at p.297) fails to record any background material which, as a matter of fact rather than theoretical possibility, would have suggested that the garda

witness would only have known the accused from some prior criminal behaviour. No such difficulty arises in the instant case.

DECISION

The Court is satisfied that the ruling to admit the evidence of the two garda witnesses who identified the applicant from the video in this case was correctly

made. In the course of the voir dire, it was clear from the evidence adduced by the various garda witnesses that they could recognise the applicant from

their community work in the local area. The admission of the evidence of the two gardai was in the circumstances, and subject to appropriate warnings

being given, entirely unobjectionable in the view of the Court.

Ms. Mary Ellen Ring, senior counsel on behalf of the applicant, argued that such evidence should not be given where other evidence of identification is

available to the prosecution, such as in the present case where the prosecution had available to it the evidence of Mr. Alquasar which was corroborated in

part by the evidence of two other civilian witnesses. She submitted that in such circumstances the evidence of two garda officers, who were both aware that

the applicant was suspected of the crime, was both superfluous and as those witnesses were likely to be prejudiced in the subjective sense of the term.

The Court rejects these contentions. If identification evidence is available from police officers and the same can be given in circumstances where the

probative value of the evidence outweighs the prejudicial effect, the Court sees no reason why such evidence should not be given. It is difficult to conceive of

a greater affront to the community’s interest in the prosecution of crime than to deny to the prosecution the opportunity of calling such evidence, all the

more so in modern social conditions where gun crime and intimidation of witnesses has regrettably become all too frequent.

That is not to say that an endless stream of police witnesses should be paraded through court, each of whom would successively provide recognition

evidence of an accused person from a video or photograph. As the cases indicate, there is a balancing exercise to be performed in this sort of situation by

the trial judge. It is important that witnesses who are called should wherever possible be able to point to some non-criminal background context whereby

the identification or recognition has been made. In a situation where this is not possible (a situation which does not arise in the present case) a very real

difficulty may arise, the resolution of which is beyond the purview of this judgment.

In the present case, the Court is satisfied that this balancing exercise was carefully and properly carried out by the trial judge after careful review of the

relevant legal authorities. His ruling at the conclusion of the voir dire is, in the view of the Court, impeccable. Equally his charge at the conclusion of the

trial, in the course of which he warned the jury that both the garda witnesses knew that the applicant was “in the frame” for the particular offence constituted

a graphic and direct warning to the jury to take this factor into account when weighing the evidence.

In the opinion of the Court, the appeal against conviction must fail.

APPEAL ON SENTENCE

In relation to sentence, counsel on behalf of the applicant argued that increased prevalence of a particular type of crime does not automatically justify an

increased sentence. She placed reliance on a passage in Mr. Tom O’Malley’s book Sentencing Law and Practice. 2nd Ed., (Dublin, 2006) at pp. 176 – 178

which deals with the issue of prevalence and in particular the section which commences:-

“Courts should proceed with great caution before taking the prevalence or perceived prevalence of an offence into account for the purposes of

sentence”.

She submitted that if the learned trial judge wished to hear such evidence then the appropriate time was after having sentenced the applicant. Instead the

learned trial judge in delivering sentence on 4th May, 2007 stated:-

“In coming to this decision I have taken into consideration the dreadful record of gun related crime in Ireland, Dublin and Blanchardstown and

the fact that such a sentence should include a deterrent aspect, not only to deter Darren Larkin should the Executive ever sanction a

conditional release, but also others who must know that the use of firearms will result in the most serious sentences.”

Ms. Ring pointed to the fact that the English Court of Appeal (Criminal Division) had stated categorically that a sentencing court should not make

assumptions about the prevalence of an offence in a district and was not entitled in the interests of local deterrence to impose a sentence higher than would

otherwise be appropriate for the particular offence: R v. Oosthuizen [2005] E.W.C.A. Crim. 1978.

In that case Rose L.J. stated:-

“In the absence of such statistics or other evidence identifying particular prevalence in a particular area, a judge, however experienced in a

particular area, should not make the assumption that prevalence of that offence is more marked in the area with which he is familiar than it is

nationally. Such an assumption will be particularly hazardous when, as in the present case, there is either a guideline decision of this court,

or a guideline issued by the Sentencing Guidelines Council, or specific guidance in relation to particular offences, intended to be of national

application.”

As a matter of general sentencing principle the Court is satisfied that a judge in passing sentence is entitled to take prevalence into account to justify a

sentence which contains a deterrent element. Indeed Mr. O’Malley in his book does not demur from that proposition. Needless to remark, the sentencing

judge must also have careful regard to the personal circumstances of the offender, the proportionality of the sentence, and the requirement to keep the

possibility of rehabilitation of the offender in mind.

The Court is satisfied that the learned trial judge in this case did not fall into the error of simply acting on an assumption. Evidence of prevalence was

tendered to the court at the sentencing hearing by Detective Inspector Sherry who at the time of the hearing had some five years experience of working in

the Blanchardstown area and who also had examined files in relation to gun crime in the local area. He told the court that between January, 2003 and April,

2007 there were ten murders in the Blanchardstown area alone, six of which were firearms related. He gave further evidence that in 2003 there were ten

incidents where firearms were discharged. In 2004 there were twenty-three such incidents and in 2005 there were fourteen incidents. He gave evidence also

that between 2003 and 2007 thirty-five people had been charged with unlawful possession of firearms.

The Court is entirely satisfied that the learned sentencing judge was quite entitled to take this evidence into account when structuring the sentence and to

allow for a deterrent element in the sentence in those circumstances.

The learned trial judge was also entitled to take into account that, at the relatively youthful age of twenty-three years, the applicant had already

accumulated thirty-five previous convictions.

He also undoubtedly had due regard to the victim impact statement furnished by Mr. Alquasar which indicated that his personal and family life were

destroyed as a result of this attack. While Mr Alquasar appears to have made a good physical recovery from the head wound, his family life has broken

down and he lost his employment as a result of this event. His children were severely traumatised and one of them was unable to return to school as a

result. His statement would suggest that Mr. Alquasar has left Ireland and will never return.

Finally, the learned trial judge carried out a careful exercise in weighing both mitigating and aggravating factors in relation to the offence before concluding

that:-

“Had Darren Larkin been convicted of murder, the mandatory sentence would have been life imprisonment, and it would, in my view, be a

logical absurdity to avoid a life sentence merely because Darren Larkin is a bad shot.”

The Court believes that the learned trial judge was mistaken in approaching the matter of sentence in the manner which these final sentencing remarks

suggest. It is, in effect, to elide the difference between attempted murder and murder itself. Fortunately, Mr. Alquasar did manage to avoid the loss of his

own life in this incident and while this does not lessen the culpability of the applicant, it is nonetheless a factor which the Court believes should resonate in

a somewhat lesser sentence.

The Court will accordingly vary the sentences imposed by the learned trial judge, imposing a sentence of fifteen years for attempted murder and ten years

for each of the firearms offences, all three sentences to run concurrently and from the same date as specified by the learned High Court judge.