Court of Criminal Appeal dismisses appeal against fraud convictions, upholding jury directions on evidence and judge's comments.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Hanna J.

[CCA No. 105 & 103/2008]

BETWEEN

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

RESPONDENT

AND

EMAD MASSOUD & GEHAN MASSOUD

APPLICANTS

JUDGMENT of the Court delivered by Mr. Justice Kearns on the

24th day of July, 2009

The applicants are a married couple from Alexandria in Egypt who were convicted of certain fraud offences in Dublin Circuit Court on the 4th February, 2008

after a lengthy trial before a jury. They were convicted of two offences under s. 32(1) of the Larceny Act 1916, as amended by s. 9 of the Larceny Act 1990:-

first, that on or about the 25th day of March, 2002 at 53 Fitzwilliam Square in the City of Dublin they caused Scottish Provident Limited to deliver to

Permanent TSB on their account a cheque in the sum of €685,658.56 by falsely pretending that Gehan Massoud had suffered cancer of her left breast and

that, arising from such, there was an obligation on the part of Scottish Provident to settle a serious illness claim under a policy effected for that purpose.

They were further convicted of causing Lifetime Assurance Company Limited to pay by way of electronic credit transfer to their account in Bank of Ireland

the sum of €45,338.25 by falsely pretending that Gehan Massoud had suffered cancer of the left breast and that, arising from such, there was an obligation

on the part of that insurance company to settle a serious illness claim under a policy arranged to provide such cover. Following conviction, the first named

applicant was sentenced to four years imprisonment. The second named applicant was sentenced to three years imprisonment but this term was

suspended. Both applicants have sought leave to appeal against conviction only.

The grounds of appeal may be summarised as follows:-

(1) The learned trial judge failed to provide the jury with a proper direction as to lies admitted to have been told by the first named applicant.

(2) In charging the jury, the trial judge gave an unbalanced charge in respect of the evidence in that he told the jury that Mr. Massoud’s

handwritten operation notes did not appear genuine by reason that they did not appear to be written contemporaneously and that their good

physical condition was inconsistent with the expected physical appearance of such documents in circumstances where none of the

assertions made by the trial judge had been put to Mr. Massoud in cross-examination or to other expert witnesses.

(3) A search warrant relied upon by the State in order to obtain certain medical records relating to the second named applicant from the Mater

Private Hospital was invalid in that the Gardai purported to execute same on the 24th October, 2003, the date of the making of the order by

the District Court, in circumstances where the date appearing on the face of the order was the 25th October, 2003.

(4) The trial judge erroneously held that the order directing the production of radiology reports and medical scans in respect of Mrs. Gehan

Massoud also included the mammograms themselves.

While it was not the subject matter of any requisition at the conclusion of the trial judge’s charge, counsel for the first named applicant has in addition

sought to raise as a further ground of appeal the unfair conduct and behaviour of the trial judge when addressing the jury at the end of the case. At the

opening of the appeal before this Court, Mr. John Peart, senior counsel on behalf of the first named applicant, ramped up this allegation to a serious degree,

alleging that the trial judge’s charge was so unfair and oppressive that it inhibited him from making a requisition to recharge or discharge the jury which he

felt at the time was appropriate. Counsel stated to this Court that he was fearful that had he done so, the trial judge “would have come down even harder” on

his client. This aspect of the case will be dealt with separately in this judgment.

BACKGROUND AND EVIDENCE

It was not in dispute that the second named applicant, Gehan Massoud, underwent an operation to her left breast under local anaesthetic at the hands of

her husband at his clinic (the Wellman Centre) in Eccles Street in Dublin on the 5th October, 2001. In the aftermath of this procedure the applicants made

claims to two different insurance companies on the basis that Mrs. Massoud had required the operation in question to address an invasive lobular cancer of

the left breast, a contingency covered by the policies in question. In the documentation submitted to the insurance companies the first named applicant

stated that the surgeon who carried out the operation was a certain Mr. Mohamed Hilal, but admitted in evidence at trial that this was not true and that he

had carried out the surgery on his wife himself. He stated in evidence that he pretended that Mr. Hilal was the surgeon because he was aware that

professional standards applicable in Ireland precluded him from carrying out the operation himself. He asserted that it was not contrary to medical or

professional standards in Egypt where he had undergone his training. It was common case that no oncology treatment had been recommended to or

undertaken by Mrs. Massoud post-operation. One month after her operation, Mrs. Massoud underwent a mammogram in the Mater Hospital. A radiographer

gave evidence that it was unusual to have a mammogram carried out after the operation, that it normally preceded the operation and was a test intended to

establish the nature of any cancerous growth and its extent. A medical witness gave evidence of her findings in relation to the scans and stated her view

that the breasts, as appeared on the mammogram, were symmetrical, a finding one would not expect where there had been an operation of the scale

alleged by the applicants. A pathologist attached to the Mater Hospital carried out an examination of certain tissue material which had been submitted for

evaluation by the first named applicant and stated that if the entirety of the tissue allegedly removed had been submitted it would have equalled the size of a

tennis ball. He was working from slides presented to him. Dr. Patricia Holland, a medical practitioner who examined Mrs. Massoud on behalf of Scottish

Provident, observed a scar in the area of the left breast but overlooked to enquire as to the size of any tumour allegedly removed. She gave evidence that

she had never heard of a patient having a lump removed from the breast under local anaesthetic. In her view it would have been nearly impossible to carry

out such a procedure unless Mrs. Massoud had an extremely high threshold of pain. Dr. Anne O’Doherty, Director of National Breast Check Operation in

Ireland, studied the mammograms and concluded that no surgery was carried out on Mrs. Massoud to the extent as claimed. She based her view on

looking at the mammograms and coming to the conclusion that there was no apparent difference in size between the two breasts. She found no disruption

of the contour lines that would suggest a cutting or an incision. There was no scar line, no calcification, or no cavity or fluid in the area where the operation

had taken place. Her view was that even a biopsy involving the removal of 20 grammes of tissue would be noticeable on a mammogram if it had occurred. In

the instant case it had been suggested that 237 grammes of breast tissue had been removed.

A leading surgeon then working at the Mater Hospital Breast Clinic, Mr. Michael Kerin, also stated that there were no hallmarks of a cancer operation.

There was no evidence in this case that any prior diagnosis had been carried out. There was no post-operative treatment consistent with cancer or

lumpectomies of the scale that Mrs. Massoud had allegedly been subjected to. He described the amount of tissue removed at 240 grams or thereabouts.

Another witness, Dr. Mohamed Attia, gave evidence that he saw a tissue sample, which he believed came from Mrs. Massoud’s mother in a jar in the

Massoud’s house on a prior occasion. He had been told that Mrs. Massoud’s mother had been diagnosed with breast cancer and had seen a pathology

report to that effect. In a discussion which Dr. Attia described having had with Mr. Massoud it was agreed that a second opinion would be obtained in

Ireland in relation to this particular tissue sample.

Mr. Mohamed Hilal, a surgeon, gave evidence that all the documents in his name that were produced and shown to him were forgeries and did not emanate

from him. He also gave evidence that the clinic where Mr. Massoud practiced was not suitable for surgery for the removal of a breast tumour of the scale

allegedly taken from Mrs. Massoud. He described the surgery as being no more than a standard GP’s clinic. He also gave evidence that while working at

St. Luke’s Hospital in Kilkenny he was asked by Mrs. Massoud to examine samples of tissue that came from Egypt and said that Mrs. Massoud had

brought the tissue to him personally. He was quite clear that Mrs. Massoud had never stated to him that she herself had cancer. Detective Garda O’Brien

gave evidence of searching the Massouds’ home and finding there photocopied pathology and histology reports from the Mater Hospital. Dr. Maureen

Smith, a DNA expert from the State Laboratory, gave evidence that the tissue examined at the Mater Hospital was not that of Mrs. Massoud and that she

had concluded it was 99.53% likely to be the tissue of the mother of Mrs. Massoud.

The first named applicant gave evidence on his own behalf, stating that he established the “Wellman Clinic” in Eccles Street in 1997. He stated that in

September, 2001 his wife came to him and told him that she had a lump in her left breast. He examined it and was of the view initially that it was no more

than fat necrosis. He assured his wife he would take out the lump himself and he saw no point in delaying things by undertaking a biopsy or mammogram.

He was of the view that “cancers travel” and that consequently it was important to proceed with haste. He agreed that a general anaesthetic was an easier

manner in which to carry out the operation but stated his belief that a local anaesthetic could be employed even for a full mastectomy whereby the entire

breast would be removed. He stated that in Egypt it was possible for a surgeon to operate on a member of his own family. However, he knew what he was

doing was wrong, but explained that he was concerned about any possible delay. He thus decided to carry out the operation in his clinic. That operation

was carried out on the 5th of October, 2001. He stated that the lump was almost in the axilla and he had very little cutting to do because the tumour came

away easily. It was bigger than he had anticipated. He split the tumour because it was too big. The following Monday he brought the tissue to the Mater

Hospital for analysis. He expected to find a diagnosis of fat necrosis but it came back to him from the Mater Hospital as being invasive lobular carcinoma.

He said it was two weeks after the operation that he heard of his wife’s mother’s cancer and they got her histology report from Egypt. Because of that piece

of news he then decided that his wife ought to have a mammogram carried out.

Mr. Massoud also kept surgery notes of the operation he carried out. He said that the surgery carried out was mostly in the axillary area. In dealing with the

surgery notes, the learned trial judge stated as follows:-

“He said that surgery notes – surgical notes that he prepared were to remind him of what he had done and, here, ladies and gentlemen, I

would invite you particularly to look at the original of the surgery notes. I have seen them briefly. They are in pristine condition. They are not in

the same pen. There are entries made, it is suggested, contemporaneously, in other words, at the same time as things were happening.

There is no scuff mark, there is no earmarking on them. There is no scratching, no nothing. There is not any element of discolouring

whatever, and you have to remember that they are there in the surgery as Mrs. Massoud is being operated on because Mr. Massoud has told

us he made the entry about what had happened contemporaneous or at the time, and I think that may be of some significance to you as to

when these notes were created and why.”

In addition to preparing these notes, Mr. Massoud also wrote three letters to Dr. Burke, his wife’s general practitioner, to keep him informed of what was

happening with his patient. Mr. Massoud further stated that at the time he didn’t think of making an insurance claim. It was only after the results came back

from the Mater Hospital confirming the tissue results that he recalled the policies. As he did not want his colleagues to know that he had performed the

operation he used Mr. Hilal’s name when submitting his claims. He stated his strong belief that the sample which had been submitted to the Mater Hospital

differed significantly from the sample referred to in the pathology report which had been received from Egypt and which related to Mrs. Massoud’s mother.

He did not believe that the two tissues could be the same, as they were different in size and one was grade 3 as opposed to grade 2. He said that Dr. Attia

was wrong and lying and was wrong to say that he saw the sample of his mother-in-law’s tissue in his house. He submitted that Dr. Attia was lying and had

invented the story that was told to the police. He also believed the Gardai had reacted too quickly in assuming that he and his wife were involved in an

attempt to defraud the insurance companies.

Dr. Frederick Wright gave evidence on behalf of the first named applicant and agreed that the mammograms in the case showed no abnormality. However,

he explained that in taking mammograms of large breasts, the breast is pushed over and this could explain why the operation scar was hidden and the

breast appeared normal. Dr. Alan Anscombe gave evidence that the two tissue samples, the one at the Mater Hospital and the one described in the

pathology report from Egypt, were different for a number of reasons. Dr. Teresa Wilson, a DNA specialist, also gave evidence on behalf of the defendants

and concluded that the samples were not a match. She gave evidence about the impact of cancer and its ability to damage DNA in the area of the tumour

or in the surrounding tissue. Evidence was also given by a Mr. Hatim Elsaadany. Dr. Attia had claimed that Mr. Elsaadenay brought the tissue sample

relating to Mrs. Massoud’s mother to Ireland. He denied that he had done so. A Dr. Effichar Ali, consultant anaesthetist, gave evidence that it was possible

to perform the type of operation undertaken by Mr. Massoud by means of local anaesthetic.

DIRECTION AS TO LIES

The learned trial judge commenced his charge to the jury on Friday, 1st February, 2008. He concluded the charge on the following Monday. At the

conclusion of the proceedings on Friday, the learned trial judge enquired of the parties if they had any requisitions in respect of what he had said to the jury

in respect of the applicable law.

Counsel for the prosecution responded as follows:-

“You indicated to the jury that of course telling lies by itself is not a crime; the jury may come to the conclusion that there has been a lie in

this case told by the Massouds. In other words that it was Mr. Hilal that did the operation, and there is some case law to suggest that a judge

should direct a jury that the telling of a lie does not by itself equate with guilt, that there are all sorts of other reasons for telling lies.”

Neither Mr. Peart, as counsel for the first named applicant or Mr. O’Dulachain, who was then counsel for the second named applicant, indicated they had

any complaints or requisitions whatsoever arising from the direction which had been given by the judge to the jury on this issue.

Before proceeding further to analyse the judge’s charge, it is perhaps important to recite what the learned trial judge had already said to the jury in this

respect. He said:-

“Even if you disbelieve Mr. Massoud, if he didn’t impress you as a witness, that you felt that he was pompous, to a degree there is basis for

that, self-serving, not impressive, and you don’t particularly like him, don’t believe him. But it is still possible that what he says occurred did

happen, he is not guilty of any offence nor is his wife, because it then still means you have not been brought to the point you say: “I have no

reasonable doubt”. If what Mr. Massoud says is true he is innocent. If what he says could be true, could be possible he is innocent, and even

if you don’t believe him, it is possible he is innocent. A most important formula, and by definition so is his wife.”

On the following Monday, the learned trial judge concluded his charge with the following direction:-

“One last thing I want to say to you is this – the mere fact that a person tells a lie, if it is established that he or she has told a lie, doesn’t of

itself mean they are guilty. You must be satisfied that the State have established beyond reasonable doubt the facts they say support these

charges.”

In terms of requisitions raised on Monday, the 4th February, 2008, Mr. Peart referred only to the fact that the possession of certain papers found in the

Massouds’ house might have been completely innocent and stated simply that “I feel that I might do more damage to ask you to address the jury on that”.

For his part, counsel for the second named applicant raised two issues. One related to the judge’s charge in relation to the physical condition of the

surgical notes. He contended that the state or condition of the notes was a matter which had not been put to any medical witness or to Mr. Massoud and

that there might be other reasons why the operation notes were in such good condition. He raised a similar point in relation to the appearance of the lump

as it was seen in a photograph tendered in evidence, complaining that the judge’s comment had not been the subject of any explicit statement by any

medical witness.

In response, and in refusing the requisitions, the learned trial judge stated his belief that he had kept within reasonable parameters when making

observations and comments to the jury.

No complaint was made to the trial judge that his charge had been unfair or biased in favour of the prosecution.

In advancing the appeal on the issue of appropriate directions to be given to a jury where the evidence establishes that an accused person has told lies,

counsel for both applicants relied essentially on the decision of this Court in The People (D.P.P.) v. Brady (Unreported, Court of Criminal Appeal, 5th May,

2005) and R v. Lucas [1981] Q.B. 720 to argue that a special direction from the trial judge to the jury was necessary in cases involving lies.

In R v. Lucas [1981]Q.B. 720 at p.724, four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the

prosecution case and they are as follows:-

(1) The lie must be deliberate;

(2) It must relate to a material issue;

(3) The motive for the lie must be a realisation of guilt and fear of the truth; and

(4) The statement must be clearly shown to be a lie by evidence from an individual witness or be admitted to be false.

Counsel argued that since Lucas it has been the practice of courts in this jurisdiction to give such a warning and a failure to do so in this case rendered the

conviction unsafe.

In The People (D.P.P.) v. Brady (Unreported, Court of Criminal Appeal, 5th May, 2005) the Court of Criminal Appeal quashed a conviction on the basis that,

in the circumstances of the case, a Lucas warning should have been given. In that regard this Court (per Fennelly J.) having found that the accused had

given not one, but two, completely false accounts, each of which conflicted with the other stated at pp. 3-4 of the Court’s judgment:-

“Now it is fairly obvious that the fact that he had given a completely false account not once but twice was certain to discredit him in the eyes

of the jury and if the jury were uncertain as to whether to believe the complainant or him, he would obviously start with a very heavy burden

because of the fact that he had given a lying account pretending that he was not present at the scene at all. In this situation, in relation to the

complaint in the ground of appeal as it relates to the charge by the learned trial judge, the learned trial judge very carefully informed the jury of

the existence of these two accounts but did so without comment in a totally neutral way, and very carefully told them of these, but did not

draw attention to the discrepancy, but more importantly from the point of view of the ground that is advanced here, did not direct the jury

specifically with regard to the application of the burden of proof and standard of proof on this particular point.”

At p.5 of his judgment Fennelly J also stated that:-

“So the question is whether … this was an appropriate case for the jury to be warned that a person may have lied for a reason other than his

guilt such as something that he wishes to conceal from his family because it might disgrace him in some way in the eyes of his family. That

decision [R. v. Lucas [1981] Q.B. 720] has been followed in the subsequent cases and indeed although there is no express reference to it in

this jurisdiction, it seems common sense that when a particular problem arises in the evidence the judge should direct the jury as to how they

are to handle it.”

Fennelly J. further stated at p.6:-

“…[The jury] should have been directed in the view of the court that the evidence in question could be used against the applicant, as of

course it could, but only on the basis that they were entitled to rely on it and if they were satisfied beyond reasonable doubt … that there was

no innocent, that is to say, no non-criminal explanation for the untruthful answers.”

There is no doubt but that in this case evidence was led against the applicants which centred on lies told throughout the application for payment under the

two insurance policies. Considerable emphasis was placed by the prosecution on the lies told by the Massouds and in particular the first named applicant,

in passing himself off as Mr. Hilal when conducting surgery on his wife and signing the forms in that name as her surgeon.

The Court is, however, satisfied that the jury was not misled by the various directions given to it on this issue by the trial judge. This was not a case where

the first named applicant had denied telling lies but where there was evidence to the contrary. The first named applicant openly admitted that he had lied

and gave his own reasons for having done so. It was an explanation which, if true, self-evidently pointed to a non-criminal motive - in terms of the charges

brought - for telling lies. Quite clearly the trial judge had an obligation to give the jury assistance in relation to the issue of lies, but the Court is satisfied that

the essential elements of a proper warning as prescribed by R v. Lucas [1981] 73 Q.B. 720 were in fact given. While a complaint has been made during the

course of the appeal that the warning was not adequately contextualised in relation to the evidence, the lie in question (i.e. about Mr Hilal) was, in the view

of the Court, so stark as to obviate any such requirement. Further, the warning which was given occurred before any requisition was raised by counsel for

the prosecution and in the view of the Court the requisition made by counsel for the prosecution half way though the judge’s charge on Friday afternoon was

unnecessary. Significantly, it was not a requisition either deemed necessary or made or supported by counsel for either applicant either on the Friday when

the judge invited requisitions or on the following Monday when he completed his charge, adding at the very end a further direction as to the significance of

lies told by the first applicant. Any supposed deficiency in the warning on this issue was at no stage (until the appeal herein) a matter of concern to either

counsel for the applicants. The Court dismisses this ground of appeal.

THE SEARCH WARRANT

The application grounding the Production Order/search warrant was dated and stated to be sworn before a judge of the District Court on the 24th October,

2003 at Dublin District Court. However, on its face it was stated to have been signed by the learned District judge on the 25th October, 2003. The

production order in question was made under s.63 of the Criminal Justice Act 1994 as amended by s.1 of the Disclosure of Certain Information for Taxation

& Other Purposes Act, 1996.

The applicants’ submission is simply to the effect that the Gardai did not have any power on the 24th October, 2003 to request the production of any

information, documents or other matters on foot of the search warrant in question. Mr. Peart contended that the facts were on all fours with what occurred in

the case of D.P.P. v. Curtin (Unreported, Circuit Criminal Court, 2nd April, 2004), except that in the instant case an effort was made to execute the warrant

a day before it became effective, whereas in the Curtin case an attempt had been made to execute the warrant a day after it ceased to be effective.

It was argued that notwithstanding that the information and documents sought on foot of the production order were produced only on the 30th October,

2003, this defect or invalidity could not be cured. Mr Peart contended that there had been a deliberate invasion of his client’s constitutional right to privacy

in the circumstances.

The learned trial judge conducted a voir dire hearing in relation to this issue and heard uncontradicted evidence that the order was in fact granted on 24th

October, 2003 but that through a simple clerical error the date had been incorrectly typed on the order as being the 25th October, 2003. The trial judge

found that the evidence given to explain the clerical error was credible and distinguished the facts of this case from those which pertained in The People

(DPP) v. David McGoldrick [2005] 3 IR 123.

In that case the warrant in question was beset by a number of fundamental errors. Giving the judgment of this Court, Denham J. stated at pp. 132-133:-

“This aspect of the application to this court by the accused turns on the sufficiency of the information and the warrant. The court finds that:-

(a) there were important errors on the information and on the search warrant;

(b) incorrect references were made to incorrect sections of the relevant legislation;

(c) it was not a situation where there was a single error in referring to the Copyright and Related Rights Act 2000, there were several errors;

(d) the errors were not merely hand written additions or amendments to the form, they were not "clerical" errors, but rather were part of the

printed general form;

(e) the documents were not clear;

(f) there was further ambiguity in the heading "Search and Seizure Warrant in relation to Infringing Goods, Materials or Articles". This is

reflective more of s. 132 of the Act of 2000 than an offence under s. 140;

(g) in relation to these documents the provisions set out by the legislature were not "strictly met".

The court is satisfied that these are not to be described as mere technical errors unlikely to mislead anyone affected by the warrant; the

warrant on its face does not accurately state the basis on which it was purportedly issued.”

The Court is satisfied that there was nothing either misleading, unclear or ambiguous on the face of the order and is satisfied that the simple clerical error in

the date was one of no material substance. The order was only acted upon on 30th October, 2003 which was within the specified seven days of validity

regardless of whether the order was dated the 24th or 25th October, 2003.

The Court finds absolutely no basis whatsoever in the evidence for the allegation made by Mr. Peart that, looked at objectively, the behaviour of the Gardai

in relation to the execution of the warrant amounted to a deliberate violation of the first named applicant’s constitutional rights. The Court would further

distinguish this case from the Curtin case because in the latter the time provided by the relevant court order for the execution of the warrant had actually

expired. In the instant case a valid order had been made on the 24th October, 2003 which authorised forthwith the request for documentation and that

request was complied with during the currency of the period limited by the order.

Quite apart from those considerations, the situation in the instant case must be contrasted with that which arises where a person’s home is being

searched. In this instance what was being sought were medical records pertaining to the second named applicant only. It is difficult, if not impossible, to

see how any constitutional right of the first named applicant is imperilled in such circumstances. Further, the documentation in question is such as might

routinely be sought in the context of a personal injuries action without objection or complaint from the party affected. The Court unequivocally rejects any

complaints raised under this heading of appeal.

The second complaint in relation to the search warrant is that it authorised production of mammogram results only and not the mammogram itself.

By its terms the order related to the following material:-

“(a) Tissue samples or parts thereof submitted in the name of Mrs. Gehan Massoud bearing the laboratory number 01S04141.

(b) Histology reports on the above tissue sample held in legible form and on computer.

(c) Radiology reports and medical scans in particular mammogram results held in legible form and on computer in respect of Mrs. Gehan

Massoud, which relate to this investigation.”

A mammogram is the process whereby a breast is scanned. The document or picture produced as a result of such a procedure is termed a mammogram

scan or mammogram result. It seems clear to the Court that it would be impossible for a recipient of the order to produce a mammogram. Only the result

thereof or scan therefrom could be produced and those results are expressly covered by the order. The Court is satisfied that the purpose of the order was

to obtain the information obtained by the mammogram, that it was effective for that purpose and that the point raised is wholly artificial and without

substance.

As already noted in relation to the first complaint about the search warrant, the s.63 Production Order related to information affecting Gehan Massoud only.

Thus the order cannot be seen as having any effect on any of the first named applicant’s constitutional rights, whether it be his right to privacy, right to

associate or right to freedom of expression. Counsel for the respondent has, correctly in the view of the Court, invoked the decision in The People (DPP) v.

Lawless [1985] 3 Frewen 30 as an appropriate authority for the proposition that a person is entitled to assert only his own rights in aid of the exclusionary

rule and not those of any other person.

The Court also rejects this ground of appeal.

ALLEGATION OF UNFAIR CHARGE

In opening his appeal in this case, Mr. John Peart, senior counsel on behalf of the first named applicant, sought to complain that the trial judge had given a

charge which was very unfair and which heavily favoured the prosecution. Mr Peart stated that it was accompanied by facial expressions from the trial judge

which indicated his disbelief of the evidence tendered by the first named applicant. Mr Peart stated that he was so “flabbergasted” and upset by the

unfairness of the charge that he was literally ‘unable’ to make any requisition when the trial judge invited same halfway through his charge on Friday

afternoon. Pressed by the Court as to why, if he felt so inhibited on that occasion he nonetheless failed to raise any requisition as to unfairness on the

following Monday, Mr. Peart stated that he had decided instead to reserve the point as an appeal point for this Court.

The Court then indicated to Mr. Peart that the Supreme Court by its decision in The People (DPP) v. Cronin (No. 2) [2006] 4 I.R. 329 had emphasised the

need to make appropriate requisitions or objections at time of trial. Mr. Peart stated he was unfamiliar with the decision in question. When it was pointed

out to him that the decision in question was not only well known but was relied upon by counsel for the respondent in his written submissions, Mr. Peart

denied that any such reference appeared in those submissions. The Court will merely observe that the Supreme Court decision in question is fully detailed,

together with the extensive list of authorities referred to therein, between pp.7 – 9 (and again at p.13) of the respondent’s submissions in this case.

The importance of the decision in The People (DPP) v. Mark Cronin (No. 2) is manifest in circumstances where it is now sought to ventilate a matter which

could have been taken up with the trial judge but was not. It is a decision which is regularly invoked in this Court given that the Supreme Court in that case

stated at p. 346:-

“…some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated

before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to

explain why the particular point was not taken. …

Without some such limitations, cases will continue to occur where a trawl of a judge's charge years after the event will be made to see if a

point can be found which might have been argued or been the subject matter of a requisition at the end of the judge's charge at the original

trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one

totally disconnected from the reality of the trial itself. For these reasons … this court should abhor the practice and strongly discourage it.”

The Court strongly deprecates the approach adopted by Mr. Peart with regard to all aspects of the point presently under consideration. In the Court’s view

an allegation of the kind now sought to be raised against a trial judge should, both as a matter of professional obligation and common courtesy, be first

made to the trial judge himself or herself. It is most unfair to the judge concerned for counsel to remain silent in the face of a supposed unfairness and to

later mount a swingeing attack on the judge in question in another court or forum.

Having carefully perused the transcript at the conclusion of the judge’s charge on both Friday and Monday of the trial, the Court would first observe that it

has found no material suggestive of incapacity on Mr Peart’s part or any material which lends any credence to the assertions of duress-induced incapacity

made by him to this Court. If this complaint was genuine it was, in the particular circumstances alleged to have taken place, both open to Mr Peart, and

indeed part of his professional obligation, to seek to call new evidence before this Court to that effect and to swear an appropriate affidavit detailing the

matters complained of. Mr Peart could in addition have made himself available for cross-examination on any matter to which he deposed in the affidavit. No

such steps were taken and the Court is quite unable to accept as genuine Mr Peart’s complaints in this regard.

An allegation of unfairness is a serious matter which affects the very integrity of the trial itself. As the Supreme Court made clear in The People (DPP) v.

Mark Cronin (No. 2) [2006] 4 I.R. 329, its decision in that case is not to be taken as shutting the door to an appellant where an apprehension arises that a

real injustice has occurred. Given that it would have been an injustice if the trial judge had conducted himself in the manner alleged by Mr. Peart, the Court

has carefully perused the transcript of the judge’s charge in this case.

The Court is satisfied that the trial judge repeatedly stressed that the facts of the case were solely within the province of the jury. He specifically warned the

jury that if they disagreed with anything he had said by way of comment on the facts, they were obliged to disregard what he had said. Having regard to the

length of the trial, the trial judge was obliged to summarise the facts of the case, drawing to the attention of the jury the pertinent issues of fact which might

have a bearing on the credibility of the witnesses. The trial judge warned the jury that speculation was not permissible;-

“It has been said to you that you are not entitled to speculate. If there are gaps in the evidence don’t seek to fill them by what you think might

have been the situation. If there are gaps I will tell you how to deal with it. If the prosecution have failed to make their case, that there are

omissions or gaps, the accused are entitled to take the benefit of that failure.”

The trial judge did undoubtedly exercise his right to comment on portions of the evidence and did so on a number of occasions. The comments, and the

frequency of them, might not have been a course taken by some other judge performing the same function, and may not have been to the liking of defence

counsel, but this Court is satisfied that such comments as were made did not subvert the fairness of the trial or go beyond what is permissible. In

particular, the Court is of the view that the learned trial judge’s observations and comments in relation to the operating notes and photograph were

comments which he was entitled to make, given that the notes in question would be seen and examined by the jury at closer quarters when they retired to

consider their verdict.

In all the circumstances, the Court will refuse leave to appeal in this case.