Court of Criminal Appeal allows appeal on jury charge but dismisses appeal on verdict safety.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 88/08]

MCKECHNIE J.

BUDD J.

O’KEEFFE J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

BEROKET MEKONNEN

ACCUSED/APPELLANT

JUDGMENT of the Court delivered on the 11th day of October, 2011 by McKechnie J.

Mr. Mekonnen was charged, by way of a single count on the indictment, with the rape of one J.M., a female person on the 3rd August, 2005, at York Street

in the City of Dublin: such being contrary to s. 48 of the Offences Against the Persons Act 1861, s. 2 of the Criminal Law (Rape) Act 1981, and s. 21 of the

Criminal Law (Rape) (Amendment) Act 1990. After a thirteen day trial he was convicted on the 2nd February, 2007, of the offence as charged. The jury

verdict was by a majority of ten to one, the twelfth juror having previously been excused. He was sentenced to seven years imprisonment to run from the

29th June, 2006, the date of his initial incarceration. Five years post release supervision was also imposed. In his notice of appeal seeking leave to appeal

against conviction, he makes five complaints, the first and second of which can be treated as one. The grounds upon which he relies are:-

(1) that the evidence of an informal identification should not have been allowed go to the jury,

(2) that the judge’s charge in relation to such evidence was inadequate,

(3) that such charge was likewise defective with regard to the standard and onus of proof, and

(4) that the verdict of the jury was in its totality perverse.

Of the general background, which is not complicated, a limited summary is sufficient to have the appeal issues put in context for the purpose of review and

conclusion. At about 2.30am on the morning of the 3rd August, 2005, the injured party met the appellant outside a nightclub in the City of Dublin from

where she had come. She was, by her own admission, quite drunk at the time. Whilst sitting on a step she casually greeted him and asked for a drink from

the bottle of red wine which accompanied him. After some general chat they left the main thoroughfare, at her suggestion, for fear of being caught with the

bottle. They ended up at the steps of York House in York Street. They had a cigarette, more wine and further general conversation, staying there for some

considerable time, perhaps even for an hour or two. At some point Mr. Mekonnen started getting “physical” but his advances were rejected. The injured

party repeatedly said “stop”. This had no effect on the appellant and over a period of time he raped her. He then left the scene as did she. She returned later

in a taxi to get some evidence and sometime afterwards made a complaint, initially of assault, and later of rape, which was subsequently investigated by

Harcourt Terrace Garda Station. There, the injured party gave a description of the person who raped her, describing him, inter alia, as being small, black

and from Africa.

On the 25th August, 2005, Garda Rowe and Garda Ganly both from the investigating station, were on duty at Grafton Street in Dublin. Their rank may be

that of Detective Gardaí and not simply Gardaí. By chance, Garda Rowe saw a person who because of his general appearance, aroused his interest. He felt

that such person fitted the general description of the individual whom the injured party had previously described as her assailant. He requested

documentation of identity and of travel and in conversation discovered that such person intended to travel to Limerick, perhaps later that day. The garda who

followed this man to a hostel where he was staying also managed to take a photograph of him on his mobile phone.

Later that day Garda Rowe conveyed this information to others within Harcourt Terrace Garda Station, the centre of the investigation: Detective Garda

Whelehan and Detective Sergeant Fitzgerald in particular. A decision was made to contact the injured party and take her to Busáras to see if she could

identify her assailant. Garda Brian Sheeran was called upon to act as the independent garda for this purpose. He had no real knowledge of the crime or the

investigation and was given no details other than those necessary to make sense of what had been requested of him. All four travelled to the bus station in

a garda car.

Before entering, Garda Sheeran gave instructions to the injured party as to what to do. She was to go in and walk around. She was to look and if she

recognised the person whom she alleged had assaulted her, she was to contact the garda, who would keep her in sight but not in earshot. She was not to

confront the individual if “per chance” she could identify him. She was not told about the earlier Grafton Street encounter, was not shown the photograph

which had been taken and was not informed of the appellant’s intended travel destination.

Recounting her evidence the following then unfolded: the injured party went into Busáras, which was quite busy. She saw a few East Africans but none of

them were “him”. She saw another Asian who was not African. She saw the queue for the Limerick bus which comprised about ten people. In it, there was

a small man, with a large suitcase, sitting down and crouched on a bag. She herself sat down five feet away, directly beside him, and felt it “was him”. She

then went back to Garda Sheeran and said “that’s him”, but she was not one hundred percent certain. He requested that she go back and take another

look, which she did. On this occasion she stood right beside the man and looked into his eyes. There was no reaction of any type by him. She recognised

him as her assailant and was then one hundred percent certain. She was aware of his height and shape and she said “the proximity was something I was, I

had from him before, it was the same character”.

In his evidence, Garda Sheeran recalled what instructions he had given the injured person prior to both of them entering the station, but with him remaining

some distance away from her. Having walked around the central part of the station, Ms. J.M. then made her way towards “Gate 11” where a queue had

been forming for the Limerick bus. She sat down on a seat and she began to look at those in the queue. After a while she appeared to concentrate on one

person in particular. She returned to the guard and his recollection was that, even at that stage, she was one hundred percent certain in her identification.

The guard asked her to return to the individual and as pre-arranged, point him out so that the identification could be carried out correctly. At that stage the

queue was on the move towards the actual exit for the bus. She then went over and stood directly in front of the person in question and pointed at that man.

She then stepped back and Garda Sheeran, being satisfied with this identification called on two other gardaí who were in the vicinity. The appellant was

then arrested and conveyed to the station, subsequently, as above outlined, he was duly charged and convicted in the manner which has been described.

The first ground of appeal relates to the visual evidence obtained from this informal identification process.

In the written submissions, when read in conjunction with those made to the trial court in the voir dire, (See Day 7: pp. 53 – 73 of the transcript), it is

claimed that the decision in the People (D.P.P.) v. Dumbrell (Unreported, Court of Criminal Appeal, 10th December, 2007), (“Dumbrell”) contains a correct

summary of the law dealing with informal identifications and that, if followed, arrangements should have been created by the gardaí whereby people of

similar age, height, appearance, dress code and style, and from the same socioeconomic background as the accused should have been assembled for the

exercise undertaken at Busáras. Evidently that did not occur. Accordingly, by reason of such omission and also by reason of the actual circumstances in

which the identification took place, the principles of fairness enunciated in Dumbrell were not adhered to. Therefore, the evidence so obtained had no value

and should have been denied any utility.

Secondly, it is said that after the encounter in Grafton Street, but prior to what occurred in Busáras, the gardaí should have arrested the appellant and

arranged for a formal identification parade as soon as may be. The justification offered for not so doing, namely the insufficiency of available evidence, was

without substance, even if such view was genuinely held. “Reasonable suspicion” existed and should have been acted upon: if it had, all of the safeguards

associated with a formal identification would have attached to the arrested person. The subsequent offer of such a formal parade was “nonsense in the

circumstances”. Accordingly, as there was no objective basis for denying the appellant rights, which if arrested he would have been afforded, the evidence

of identification obtained at Busáras should have been disallowed. The People (A.G.) v. Mills [1957] I.R. 106 and The People (D.P.P.) v. Rapple [1999] 1

I.L.R.M. 113 (“Rapple”) are referred to in support of this matter.

Thirdly, even if the gardaí were correct about the insufficiency of evidence available pre the visit to Busáras, it must follow that the purpose of such a visit

was to generate a “suspect”. Evidence so gathered for this reason should never be allowed go before a jury, see The People (D.P.P.) v. Rapple [1999] 1

I.L.R.M. 113 and the cases referred to therein.

Finally, in further support of the generality of this submission, it is said that the reasons so found by the trial judge, which led her to exclude any evidence

obtained whilst the accused was in custody on the 25th August, 2005, should apply equally to the question of identification.

In response, the Director of Public Prosecutions says there is no rule against an informal identification parade, with “street identification” being a classic

example of such. Attorney General v. Martin [1956] I.R. 22 and The People (D.P.P.) v. Fagan [1974] 1 Frewen 375, are relied upon as is Rapple. As such in

his view, the primary if not the sole issue is whether the procedures adopted were fair. If so, in principle the evidence is admissible. Noting the very limited

information given to Ms. J.M. before entering Busáras, none of which could be said to be suggestive, it was manifestly the position that the circumstances

occurring were well within the threshold of fairness. In addition, the trial judge was correct in finding that, given the sparse information then available, the

gardaí would have been foolish to have arrested the appellant before holding the informal identification parade. The evidence, therefore, was properly

admitted.

Where the conviction of an accused person is wholly or substantially dependent on evidence derived from visual identification, both human and legal

experience has in a marked way alerted us to the risk of mistaken identity. This risk exists even where the opportunity for observation appears adequate. It

exists even with a witness who conscientiously strives for truth and accuracy and who is convinced that in his present situation the threshold for both has

been surpassed. It also exists even in the case of multiple witnesses all of whom possess the same determination. Evidently, any slippage in such

commitment increases the possibility of resulting injustice: the greater slippage the greater risk. Hence, time after time courts at all levels have warned of

such dangers. That is why a particular duty of enhanced scrutiny and critical appraisal is required in all cases where the issue is in play.

This heightened level of concern shines through at various stages in the criminal process, including the investigatory and prosecutorial sections of it. The

latter has attracted repeated court attention in establishing how a trial judge should deal with:-

(i) an application for a direction where the reliability of the available evidence, dictated by the reliability of the observer and the circumstances

of such observations, is marginal (or even less), to the level of safety demanded in obtaining a sound conviction, and

(ii) the type of instructions or warnings, in word and degree form, which should be given to a jury even when the evidential value of such

evidence has exceeded the threshold as prescribed. The People (at the suit of the Attorney General) v. Casey (No. 2) [1963] I.R. 33 remains

the core case in this jurisdiction on the point, whilst R. v. Turnbull & Ors [1976] 3 All E.R. 549 is a corresponding example from the English

jurisdiction.

The warning about the perils of identification evidence suggested by Kingsmill Moore J, in Casey (No.2), has been repeatedly cited since its delivery in

many common law countries.

Because of the instability inherent in visual identification evidence it is not surprising that one sees the type of submission made in R. v. Turnbull & Ors

[1976] All E.R 549, to the effect that no person should ever be convicted on such evidence only. For the reasons given by Lord Widgery at p. 553 of the

report, the maintenance of law and order would be severely impeded if such were to prevail. However, although no such rule exists, the frailty of such

evidence remains. Consequently the courts have been exercised with how best such type of evidence can be infused into the criminal process so that,

when appropriate, a conviction so based can be soundly secured whilst, on the other hand, minimising, at all stages the risk of mis-identity.

As a result it is now accepted, whatever the former view may have been (The People (A.G.) v. Fagan [1974] 1 Frewen 375 at 377), that by far the most

preferred way of obtaining such evidence is by way of a formal identification parade, the procedures for which are now also well established. These include

the matters mentioned in The People (D.P.P.) v. O’Reilly [1990] 2 I.R. 415, such as having in the assembly eight or nine persons of similar age, height,

appearance, dress and walk in life, to the suspect and also coming from a similar detailed socioeconomic background. The parade should be conducted by

a garda independent of the investigation team and of the knowledge and information which it possesses: a full record of what occurs, including details of the

foils should be kept: the suspect should be entitled to a solicitor and have him or her present if so desired: any objection reasonably made should be

considered on its merits: the suspect should be told of his right not to participate and he should not be seen in advance of the parade by any potential

witnesses. In addition, and overriding any individual element of this procedure, is a duty on the gardaí to conduct such a parade fairly as dictated by the

circumstances. Other safeguards relative to the specific facts may therefore, be required. The gardaí must be vigilant and proactive in this regard. However,

whilst every effort must be made to comply with these requirements and any others necessitated by the individual circumstances of any given case, there

will of course be occasions where some single element(s) may have to yield to the practicality of the circumstances at hand.

However desirable the above procedure may be, it has been recognised that, recourse may be had to other appropriate informal identification processes.

This was declared in Attorney General v. Martin [1956] I.R. 22 and has not been doubted since. What has been discussed on an ongoing basis however, is

when and in what circumstances an alternative method may be resorted to and if adopted, what yardstick should its legality be judged by.

There are many reasons, legally acceptable, which may explain why a formal identification parade has not been conducted. For a variety of purposes it may

not have been practical: for example, where recognition and not identity is at issue, it would seem superfluous; where the suspect is unique, one of a kind,

it would seem prejudicial and unfair; where despite all reasonable steps a sufficient number of participants cannot be gathered and where the suspect

himself refuses or frustrates such a parade. There is case law to support each of these examples: such is to be found in any of the text books dealing with

the subject.

There is also case law where the suggested reasons for not having a formal identification parade have been rejected, such as:-

(a) that the suspect was not readily available: (The People(D.P.P.) v. Fagan [1974] 1 Frewen 375);

(b) that the witness did not want personal contact with the suspect (The People(D.P.P.) v. Duff [1995] 3 I.R. 296); and

(c) that the gardaí felt it was in the suspect’s interest not to conduct such a parade (The People(D.P.P.) v. O’Reilly).

As can therefore be seen the courts have been assiduous in assessing why a step down from the optimum in obtaining such evidence has occurred. In

fact, the various explanations, whether the same be volunteered or demanded, offered to explain such a course have been subject to much scrutiny, with

exclusionary consequences following, if justification has not been established. That being so, a question arises as to whether, having decided to hold an

identification parade, there being no obligation to so do, the choice of procedure is purely a matter for the force.

That the court will require such an explanation is not in any way surprising given the significant diminution, at least in principle, in the reliability and probity

of visual evidence obtained otherwise than in the best and fairest of ways. Finlay C.J. in The People (Director of Public Prosecutions) v. Duff [1995] 3 I.R.

296, at p. 300 said:-

“It is clear as has already been decided by this Court in The People (Director of Public Prosecutions) v. McDermott [1991] 1 I.R. 359 and

previously in The People (Director of Public Prosecutions) v. O’Reilly [1990] 2 I.R. 415, that a proper, regular and optimum method of holding

an identification for a witness who believes he or she can visually identify an accused person in a criminal case is an identification parade.

Any other method of visual identification where it is a real issue in the case is necessarily a second best.”

Developing this view, the Court of Criminal Appeal, in the People (Director of Public Prosecutions) v. Lee [2004] 4 I.R. 166 at 179, said:-

“…that because of certain inherent dangers in relying exclusively or predominantly on evidence of visual identification there is an onus on the

investigating gardaí and the prosecution to ensure that evidence of visual identification is obtained in the most reasonably reliable form which,

in the absence of reasonable cause, should be in the form of a formal identification.”

It is, therefore, clear that where the issue is raised, the court will require an explanation, seeking objectively justification, if visual evidence derived other

than from a formal identification parade is to be tendered.

Immediately following the passage above quoted from Lee, Murray J. went on to say:-

“Neither should it be said that the absence of the holding of a formal identification parade without adequate explanation would in all

circumstances be a bar to a jury being permitted to consider evidence of an informal identification provided that the circumstances in which it

occurred were not such as to materially prejudice an accused in the conduct of his or her defence.” (emphasis added)

This observation does not in any real sense take from the obligation imposed on the Director of Public Prosecutions by the first quoted passage. In that, the

rule was stated: the qualification, as evidenced by the use of the phrase “would in all circumstances”, clearly infers that where no explanation is offered, or

where that offered could not be objectively justified, it will only be in quite exceptional circumstances that visual identification evidence, obtained otherwise

than by a formal parade, would be permitted to go to a jury. We strongly believe that this should be and is the situation. In addition, we highlight the very

limited nature of this exception, which does not in any way permit the gardaí to resort to an alternative method as a matter of course or routine. The rule

prevails: the exception must be exceptional.

It is this Court’s view, for the reasons above outlined, where the conviction of a person is wholly or substantially dependent on visual evidence, such

evidence should have resulted from a formal identification parade unless the Director of Public Prosecutions and gardaí can satisfy the court that the

explanation for the alternative source of such evidence is objectively justified. In other words, the onus is on the prosecution to show why second best, in

the particular circumstances, is the best available. This requirement reflects the oft recited nature of visual identification evidence and the court’s duty to

ensure that where relied upon, the best possible method has been utilised so as to obtain it. It will only be in the rarest of cases that the court, in the

absence of objective justification, will consider secondary evidence: when available for consideration the procedures appropriate to the method used must

satisfy the normal rules.

Whenever the court has been satisfied that recourse to informal identification procedure is justified, it may then be called upon to examine the procedures

adopted in obtaining such evidence. It is submitted on behalf of the appellant that the judgment of the Court of Criminal Appeal in Dumbrell accurately

states the law in this regard. Reliance is placed on a lengthy passage commencing on p. 3 with the words “…The next ground of complaint is that an

informal identification parade was held…” and ending on p. 4 with the sentence “…In this case this Court is satisfied that having regard to the authorities

which I have mentioned that it was an appropriate and proper exercise of the learned trial judge’s discretion to let the evidence go to the jury”. Although

recited in Dumbrell as an authority on the issue, it is not immediately apparent that R. v. Turnbull [1976] 3 All. E.R. 549 has anything to offer on what rules

should apply to the holding of an informal identification parade. The judgment of the Court of Appeal in Turnbull and in the conjoined cases, was principally,

if not exclusively, concerned with formalising advice to trial judges on how to deal with visual identification evidence, either when asked to withdraw a case

from the jury or when charging the jury in that regard. In essence, the judgment was focused on how to evaluate the nature of such evidence relative to its

value or quality. Important as it is in this regard, it is not on point regarding informal parades.

In the same context Dumbrell also recited two Irish authorities: the first is The People (D.P.P.) v. O’Toole & Tyndall (Unreported, Court of Criminal Appeal,

26th May, 2003) and the second is The People (D.P.P.) v. Rapple [1999] 1 I.L.R.M. 113. In Tyndall’s case, the accused person refused the offer of a formal

identification parade, which was his right, and was thereafter subjected to an informal one. The court in its judgment, having endorsed its preference for

formal parades, went on to say that “…they [gardaí] must conduct such procedures [informal identification parade] with fairness and must do nothing to

influence the witness who is seeking to make the identification…”. Save for this observation, with which we agree, the judgment on this issue was otherwise

individual to the facts of Tyndall.

Rapple’s case was principally concerned with the use of photographs, albeit in the context of visual identification. Mr. Rapple was convicted of robbery and

sentenced to five years imprisonment. He sought leave to appeal on the issue of visual identification. The victim of the robbery, a fourteen year old boy, got

into conversation with the accused on the Dublin/Leopardstown bus. Both got off at the same stop, whilst a woman who had been with the accused got off

a little earlier. Having alighted from the bus, the accused forced the boy into a field where the robbery took place. On reporting the incident to the gardaí, the

victim gave a description of his attacker which included a reference to a tattoo of a bird on his hand between thumb and forefinger. The gardaí showed him

photographs from which he identified Mr. Rapple as his assailant. Two days later the accused was arrested and charged and at some point declined an

offer of a formal identification parade. Approximately one week later the victim was driven in a garda car, along a particular road where it was thought the

accused might be. He was, and the victim identified not only him but also the woman who also had been on the earlier bus journey. At trial, objection was

taken to the admission of this identification evidence. On appeal this was the sole issue.

During the course of this Court’s judgment, Barron J. dealt with the general use of photographs and suggested that there are two separate and distinct

situations in which photographs might be shown to a witness, whether victim or otherwise. In the first instance, having obtained a description of the

assailant, photographs may be shown by the gardaí to see if the person so described appears in them. If such identification is made, the same should be

followed up by a formal identification parade at which the witness will have an opportunity of identifying the person in the flesh. If the suspect refuses to

participate the gardaí may have recourse to an informal parade. This part of the investigating process has been described as that of “generating a suspect”.

The use of photographs for this purpose was contrasted with a situation where a suspect exists and where the gardaí intend to hold a formal identification

parade. Before so doing however, they show the witness photographs from which the accused can be identified. Both situations are evidently different,

attracting different consequences. The latter is clearly prejudicial and unfair and the resulting evidence valueless. The facts in Rapple fell within the former

category. At p. 116 of the report the court said:-

“The accused was not prepared to go into an identification parade and accordingly the gardaí had to find some other means by which the

victim could identify him so as to give evidence to that effect in court. The authorities make it quite clear that this course of action is open.

The only real issue on the appeal is whether what was done was reasonable and fair in the circumstances. I can see no ground for suggesting

otherwise.”

Therefore, there was nothing untoward in the procedure adopted.

The court in Rapple referred to a number of cases including R. v. Dwyer, R. v. Ferguson [1925] 2 K.B. 799, R. v. Melany (1923) 18 Cr. App. Rep 2 and The

People (Attorney General) v. Mills [1957] I.R. 106. It cited extensively from Dwyer and Ferguson with the passages at p. 117 of the report being from such

cases and not from Mills. What is clear from these cases however, is that each one of them dealt with the issue of photographs; at what stage of the

process it matters not. Equally so with Mills. That case involved the situation where, after giving a description of her assailant but before a formal

identification parade was held, the victim was shown a series of photographs from which she identified her attacker. In giving the judgment of the Court of

Criminal Appeal, Maguire C.J. commented on the distinction between showing a potential witness a single photograph or a series of photographs and also

on the fact that if such photographs are introduced into evidence by the accused, he cannot thereafter complain about their subsequent use. The learned

Chief Justice, who then referred to a passage from Dwyer and Ferguson, also quoted in Rapple at p. 116, viewed such observations of Lord Hewart C.J. as

meaning that where a witness, who had previously seen a photograph of her assailant, subsequently gave evidence of identification, the jury should be

warned that such evidence may be “coloured by [her] having seen the photographs”. In other words, evidence of such a witness is not as good as the

evidence of a witness who had not seen such a photograph(s). In the present case there is no doubt but that the photograph taken by Garda Rowe was not

shown to the victim prior to her visit to the bus station. Therefore, it is strikingly different to Rapple and those other cases, which differed in this essential

way.

Notwithstanding this, however, what Rapple can be relied upon for, is the proposition that in all forms of identification there is a duty on the gardaí to behave

with “exemplary fairness”. At p. 118 of the report the court said “the important matter to be kept in mind is the concluding statement in the judgment in R v.

Dwyer, R v. Ferguson: it is the duty of the police to behave with exemplary fairness, remembering always that the Crown has no interest in securing a

conviction, but has an interest only in securing the conviction of the right person”. Although stated in a different context, it equally applies to the instant

case. So when an identification is by way of a formal parade, the safeguards above described should be in place. Where some alternative form is relied

upon, this duty of fairness permeates all aspects of it.

Before leaving Dumbrell reference should be made to the appellant’s submission outlined at para. 9 supra, wherein it is suggested that even with an

informal identification the safeguards so mentioned in that paragraph must be put in place. Finnegan J., when outlining such matters, was doing so in the

context of the alternative procedure adopted in that case, which he described as having “mimicked the formal identification parade procedure insofar as that

was possible”. It is evidently desirable that such procedure should resemble as closely as possible the process of a formal parade, but how closely in any

given case will be influenced by the practicality of the prevailing circumstances. Dumbrell could not be taken as saying any more than this. Therefore, we

reject the submission.

In logical order the court proposes to deal with the applicant’s second submission first (para. 10 supra) because, if it holds that the accused should have

been arrested prior to the situation at Busáras, then the consequences for the identification evidence obtained at that venue could be decisive. It has not

been suggested that such an arrest could have been effected other than on the grounds of reasonable suspicion. The meaning of “reasonable suspicion” as

given by Walsh, Criminal Procedure, at para 4.40 has been used: he writes:-

“This requires that a reasonable individual acting without passion or prejudice would fairly have suspected the person concerned of having

committed the offence in question.”

It is said that by reference to the information and knowledge which the gardaí had, they ought to have arrested the appellant and thereafter held a formal

identification parade rather than doing what in fact they did.

Particular note should be taken as to how this submission is put: it is framed in such a way as to suggest that the gardaí had a positive duty to arrest the

accused prior to 3.00pm on the 25th August, 2005. No authority either way was cited for this proposition. Any case law on “reasonable suspicion” seems to

relate to allegations of unlawful arrest. However, no one can demand his or her own arrest. In the instant case there is no suggestion that the gardaí held

anything other than a bona fide view as to how the investigation might proceed: in fact, it is accepted that they were genuine in the belief which they held.

Nor is it suggested that they moved with an intent to deny the accused rights which would have attached to him as an arrested person. It is simply put that

they should have, but did not arrest him, and if they had, the established safeguards relative to formal identification would have applied.

The Director of Public Prosecutions has not suggested that this contention put forward on behalf of the applicant, even as stated, is non-justiciable or that

the court is otherwise precluding from considering it; it is of course said that it should be rejected.

In dealing with this point, the court proposes to treat the submission so made, as in essence being one addressing the purported justification offered by the

gardaí, for not holding a formal parade. In this way it can be considered like any other explanation put forward to show why an alternative method of

identification was adopted. The evidence in this regard was given by Garda Rowe, Detective Garda Whelehan and Detective Sergeant Fitzgerald. To a

lesser extent Garda Ganly was also involved. The court will, therefore, consider whether the information then available, coupled with the evidence of such

garda witnesses, constitute an objective justification for the decision to hold an informal parade at Busáras.

As previously stated Garda Rowe saw a person in Grafton Street on the 25th August, 2005, whom he felt “fitted the description” given by Ms. J.M. of her

assailant. He had known about the allegation from Detective Garda Whelehan whom apparently he frequently partnered whilst on duty. The Detective Garda

told him some three weeks earlier of the allegation and gave him a rough description of the person described. That description was not in writing and no

note was taken of it by Garda Rowe. However, notwithstanding his second hand knowledge of the case, he formed the view above described. Armed with

the photograph, he shared this information with the other witnesses on returning to the station. He rejected emphatically any suggestion that he should

have arrested the appellant during the Grafton Street encounter. He said that Mr. Mekonnen was only a suspect and that the gardaí needed a lot more

evidence before they could arrest him. Having returned to the station he showed the photograph to Detective Garda Whelehan and Detective Sergeant

Fitzgerald. He was not sure if the accused told him of his intention to go to Limerick that day but he must have, as Garda Ganly, who was quite definite in

this regard, could only have got such information from the Grafton street meeting.

In her evidence Detective Garda Whelehan stated that the representation on the phone was similar to the description which the garda had. She considered

the photograph to be one part only of the investigation. The individual in question was a suspect but proper identification was required before a decision

could be taken on whether to arrest him. She had not seen the accused at that stage and therefore felt that the “prudent and appropriate and correct thing

to do” was what in fact, the gardaí did. She agreed that he was a suspect but in many cases the gardaí could have several suspects. It was, therefore,

decided to bring Ms. J.M. to Busáras for the purposes of trying to identify the assailant. This decision to respond to the information which Garda Rowe had

was not one formally taken but rather was classified as the next step in the ongoing investigation of this crime.

Detective Sergeant Fitzgerald is the head of the detective unit at Harcourt Terrace Garda Station and is in overall charge of the unit. He was broadly familiar

with the allegation of rape made at the beginning of August and the description given of the assailant. He recalled being shown the photograph by Garda

Rowe. He accepts that the accused was a suspect, but in his view was no more than that. It was important to rule him in or to rule him out if that could be

done. A suspect is just that. He was neither high up on the list of suspects nor low down on the list. If the description given so fitted the representation, it

was important to try and gather further evidence to firm up on what had already been obtained. Some individuals, though fitting a description, may be

entirely innocent. In his experience no garda would conduct the arrest as suggested having only the information available at that time. He pointed out that

had the victim failed to identify the appellant at Busáras he would still nonetheless have been a suspect. There was in his opinion no valid basis to arrest

him. The mere fact that a person meets the description is not definitive and some additional or further evidence is necessary. That is why the next step in

the investigation was necessary.

As above stated, neither the truthfulness nor accuracy of the evidence given by the gardai is disputed. Notwithstanding, it is submitted that their views on

the “reasonable suspicion” issue are without foundation. The court cannot accept this submission. Quite clearly the information which Garda Rowe had was

limited in nature and second-hand in quality. He had not even seen the statement of the victim. Accordingly, he cannot be criticised for not arresting the

appellant during the course of his encounter with him on the 25th August, 2005.

Detective Garda Whelehan and her superior, Detective Sergeant Fitzgerald, had more information than Garda Rowe. They had or had access to the

statement made by the victim. Both of them formed the view that even when this was supported by the photograph, they were not satisfied that they had

sufficient grounds to effect an arrest. As was put by the detective sergeant on many occasions, the appellant was but a suspect; not the or any particular

suspect, but simply a suspect. Further evidence of association was required before they would consider it prudent to arrest. This witness said that it would

be important to try to rule in or to rule out a suspect in any criminal case. In this case, that could only be done by going to the next step in the investigation

at which further evidence could be gathered. Given the information which they had, including the possibility, if not the certainty, of Mr. Mekonnen travelling

to Limerick that afternoon, and having to operate within the timeframe then available, the decision to affect the informal parade was very much an

operational matter being part of the ongoing investigation. The court should not substantiate its own views from those of the gardaí; a margin of garda

appreciation must be allowed in such circumstances. The matter might be looked at quite differently if the holding of the parade was some sort of device

designed, or with the intention or even with the consequences of denying the accused, rights which had by then, attached to his position. That was not the

situation. Consequently, the court is satisfied that the submission made on this ground of the appeal cannot succeed. Therefore, no finding can be made

that the gardaí were in error, with legal consequences, in not affecting the arrest as advocated.

The next issue therefore, is whether the informal identification parade was conducted fairly and with due process, propriety and correct conduct. In this

regard the evidence of Ms. J.M., the complainant, is that as outlined at para. 5 supra and that of Garda Sheeran at paras. 5 and 7 supra.. In addition,

however, Garda Sheeran also informed the court that there were about 400 people in total in Busáras at the relevant time, that about 20 or 23 of that entire

grouping were black in colour and about 50% male. Therefore, there were about 11 or 12 males who might have been relevant to the process. The court is

also satisfied, that Garda Sheeran, by reason of his absence on holidays, and his lack of information about the case, was capable of and in fact did act as

an independent garda for this purpose, that no prejudicial or unfair information was given to Ms. J.M. In particular she was not shown a photograph of the

appellant or told of its existence nor was she told that his intended destination was Limerick. Busáras was sufficiently public to meet any requirement as to

location and space in this regard. The victim was told to mingle freely within the station and also that, whilst Garda Sheeran would keep her in view, she

would not be within speaking distance of him: she was told that if she recognised her attacker she was by pre-arranged signal to let the garda know. Quite

clearly Ms. J.M. approached the task carefully and cautiously. Not being one hundred percent sure after her first encounter, she was told by the guard and

did “go back and have a second look”. She then went right next to the accused and was satisfied fully to identify him. In these circumstances the court is of

the view that the identification was conducted fairly and in fairness.

Subsequent to his arrest the accused was offered a formal parade, which offer has been described as “nonsense” by his counsel. Whatever about such a

description we agree that such offer would have been of no benefit. The reason is that any identification so made would almost certainly have resulted from

the overlay of the image created by the informal parade and not from the image created on the 3rd August, 2005. That fact however has no consequences

on the court’s views as expressed above.

The appellant also suggests that the reasoning which led the trial judge to exclude from the jury any evidence obtained whilst the accused was in custody

on the 26th August, 2005, should apply in support to above submission. The ruling of the trial judge in this regard appears on Day 7, p. 81 of the transcript.

Therein she sets out several matters of concern to her, with regard to the accuser’s position and treatment whilst in custody. Quite evidently, such matters

could have no influence on the events which took place at Busáras prior to his arrest. Therefore, in the court’s view the judge’s ruling in this regard is not

relevant to the present issue.

Finally, on this point it is claimed that the visual identification evidence obtained at Busáras should, in principle, never be allowed. This submission is

contrary to all authority and cannot be acceded to.

The next ground of appeal concerns an allegation that the charge of the trial judge to the jury, on the question of visual identification, was inadequate. By

reference to The People (Attorney General) v. Casey (No.2) [1963] I.R. 33 (“Casey (No.2)”), it was submitted that the correct approach involves what has

been described as a mandatory warning of a general nature with regard to such evidence, supported by such further directions as may be required; these

being referable to the specific circumstances of the case at trial. That mandatory warning appears at p. 39/40 of the report in Casey (No.2). In the instant

case, it is claimed that neither the form of words so used in Casey or words having an equivalent input or effect were used by the trial judge in her charge. It

is also alleged that the learned judge did not adequately cover facts specific to the case such as the victim’s state of drunkenness on the 3rd August, 2005,

and the circumstances of her identification of the accused at Busáras on the 25th August of that year. Furthermore, it is said that the jury should have been

specifically told that an informal identification parade is a “sub prime” or inferior method of obtaining visual identification evidence, and that the same should

be contrasted with the recognised safeguards which would apply if a formal identification parade had taken place.

The Director of Public Prosecutions disagrees with this submission and highlights certain aspects of the initial charge relative to this issue and also relies

on the judge’s re-charge to the jury having been requisitioned to so do.

In this and in many jurisdictions, visual identification evidence must be treated with serious caution and a trial judge is obliged to inform the jury of this view.

The reasons for this are set out in an earlier part of this judgment and also are to be found in several other cases. In particular, the judgment of Kingsmill

Moore J. in Casey (No.2) remains definite in its treatment of this issue. In that case, speaking for the court, the learned judge indicated that where the

sought-for conviction depended wholly or substantially on identification evidence, the jury should be told that they “…should bear in mind that there have

been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate,

made positive identifications on a parade or otherwise, which identifications were subsequently proved to be erroneous; and accordingly, that they should

be especially cautious before accepting such evidence of identification as correct; but that if after consideration of such evidence in the light of all the

circumstances and with due regard to all the other evidence in the case they feel satisfied beyond reasonable doubt of the correctness of the identification,

they are at liberty to act upon it”. The court immediately went on to say that such direction was not meant to be a stereotype formula, that the same

contained a minimum warning and that in any particular case it may have to be amplified. It is clear from this case and others that the general warning is

always required as is a warning specific to the needs of the individual case. It is also evident and has been accepted that the choice of words by which the

general warning is conveyed is a matter for the trial judge, as it is when dealing with the particular case at trial.

In the instant case we are satisfied that in respect of the identification which took place at Busáras on the 25th August, 2005, the trial judge fully explained

to the jury the relevant evidence of all witnesses so that no further aspect of what occurred, material to that identification or the evidence subsequently given

in relation to it, was left unexplained to the jury. Equally so, we are satisfied that the trial judge on more than one occasion highlighted the self admission of

the victim as to her drunken state on the night of the 3rd August, 2005, and reminded them, that she suffered from depression from time to time, that on the

occasion in question she was on Prozac, and that as a result she had been advised not to drink.

With regard to the balance of this complaint it is necessary to refer to the transcript of the judge’s initial charge and then to her recharge. Commencing at

p. 14 of the transcript the learned trial judge, contrasted poor or valueless visual identification evidence with what could be described as cogent or quality

evidence. The former type she referred to as “fleeting glance evidence” such as when the witness is driving a motor vehicle or observing in bad light. The

latter category was close to recognition type evidence such as where the accused was known to the witness or where viewing was unobstructed and over a

period of time. She referred to the time that might be available for observation, the physical conditions under which such observations occur, and the

possible emotional state of the observer. At p. 15 she continued:-

“At each end of the spectrum experience has shown that upright members of society, well meaning members of society, people with no axe

to grind, can make mistakes, because it is difficult to describe a person after an event, especially when you have been frightened. This is not

to say that visual identification cannot be received, but you must, before you attach any importance to visual identification, consider that

people can be wrong.”

She said and repeated to the jury that they should give a great deal of analysis and very deep thought to such evidence before accepting it.

At p. 53 of the transcript, by way of re-charge, the learned judge again referred to the difficulties which attach to identification. She also on this occasion

referred to what occurred in Busáras and by way of contrast, compared that unfavourably to the conditions attaching to a formal identification parade. She

pointed out that the latter was the best way to obtain visual identification evidence. She repeated her earlier remarks about ordinary decent people with no

axe to grind having in the past been unconsciously guilty of mistaken identity. She continued:-

“The warning is not meant to say to you that there is no case ever where a visual identification can be accepted, but it is intended to remind

you and to make you think very carefully that before you accept that somebody can be convicted following a visual identification, you have to

be very satisfied that it was genuine, fair and good visual identification.”

We are satisfied that when both charges are considered in conjunction one with the other, the same was sufficient to satisfy the requirements of both

Casey (No.2) and The People (D.P.P.) v. O’Donovan [2005] 1 I.R. 385. She told the jury about the human and legal experience encountered with such

evidence: she cautioned them before acting upon it and she fully dealt with the requisition regarding the relative status of formal and informal parades.

Consequently, the court rejects the submission made in this regard.

May we add that provided all necessary directions have been given to the jury it is a matter for the trial judge as to how she structures such charge. For

example, it is not necessary to deal with the onus and standard of proof at any particular section of it, nor is this necessary when reciting witness evidence.

However, judges will always be conscious to offer maximum help and assistance to the jury, and will strive for coherency and context at all times.

Finally, in this context we have noted the exchanges which took place between the bench and the bar about the desirability or otherwise of using fixed

formulae in a judge’s charge to the jury. Quite evidently, the trial judge has little time for such practice. In the court’s view there cannot be any objection in

principle to conveying the import of any formulae to a jury, by words other than those used in the formula. Indeed, depending on how it is phrased and how

it is delivered, such informal communication may be far more beneficial to a jury’s understanding of the principles involved, than if a verbatim version was

delivered. However, formula should not be rejected simply because it is that and is so described. Unless its essence can be at least equalled, if not

surpassed by informal language, there should be no unnecessary hesitancy in adopting its use. Much will depend on the subject matter involved and how

the guidance has been framed. If it is couched in highly legalistic terms, informality may be most useful; taking care however, that all of the essential points

are covered. On the other hand if what has been stated is described in plain and understandable language, the court sees no reason why it should not be

adopted and would not stand over criticism of the trial judge for so doing. It just might be that such formulas cannot be bettered. However, in this case for

the above reasons, we reject this ground of appeal.

The third ground of an appeal relates to the manner in which the judge advised the jury as to how they should deal with the question of inferences where two

or more views may reasonably be open on the evidence. It is accepted by the Director of Public Prosecutions that the charge in this regard was not in

accordance with the recognised principles as set out in The People (Attorney General) v. Byrne [1974] I.R. 1. It is, however, said that the deficiency so

identified was rectified on the re-charge. At p. 52 of Day 13 of the transcript the learned judge said:-

“Suppose you look at a set of facts and you can draw inferences or conclusions from them and they are equal. Well then, you must take the

version that is favourable to the accused man. If they are equal, you must interpret the facts in favour of the accused. Only when they are

equal. If they are unequal, either you reject it or you accept it, but there are two different versions that you can attach the facts, you must

take the one that is favourable to the accused. That is an obligation that you have.”

The law in this regard is entirely settled and without controversy. It was laid down the by the Supreme Court in the People (Attorney General) v. Byrne

[1974] 1 I.R. 1. At p. 9 Kenny J. said:-

“It is also essential, however, that the jury should be told that the accused is entitled to the benefit of the doubt and that when two views on

any part of the case are possible on the evidence, they should adopt that which is favourable to the accused unless the State has established

the other beyond reasonable doubt.”

In The People (D.P.P.) v. Wallace, (Unreported, Court of Criminal Appeal, 30th April, 2001) the judgment of the court was given by Keane C.J. In it he cited

the relevant part of the judge’s charge in that case which was:-

“The law allows you that where you arrive at a situation where the evidence presented to you by the prosecution, where the facts are or any

one fact or any combination speak of one or two or more conclusions of equal weight, well then you can given the conclusion or the inference

most favourable to the accused (sic). You act upon that and give him the benefit of the doubt.”

In the People (D.P.P.) v. Cronin [2003] 3 I.R. 377, the Court of Criminal Appeal addressed that type of charge in the context of what was said in Byrne. At

p. 389 of the report Hardiman J. giving the judgment of the court said:-

“There is no doubt, on the basis of the two cases just cited, that it is an inadequate statement of the law to say that the inference most

favourable to the accused is to be drawn only where there are two or more conclusions which, with equal plausibility, can be drawn from a

particular set of facts. The accused is entitled to have the inference most favourable to him drawn unless it has been excluded by the

prosecution beyond reasonable doubt. This is unaffected by the fact that the jury may consider the more favourable inference much the less

likely of those available. It is of course true that where there are two conclusions of equal plausibility the accused is entitled to have the one

most favourable to him drawn, but that is not the whole story: he continues to have this entitlement even if the favourable inference is relatively

unlikely unless it has been excluded beyond a reasonable doubt.”

It is, therefore, quite clear that the judge’s charge in the instant case, on this question of inferences, was inadequate and incomplete. Such inadequacy

cannot be offset by the suggestion made on behalf of the Director of Public Prosecutions.,that in its actual wording it was more favourable to the accused;

in that, it did not inform the jury that they could accept the less favourable version, if satisfied with it beyond a reasonable doubt. That is not the function of

a charge. The charge must accurately reflect what the legal principle is. In the manner described, that given in this case, is therefore inadequate.

Notwithstanding this however, the court is satisfied that given the limited context in which this issue became relevant and in light of the total volume of

evidence otherwise available, the impugned section of the charge did not have the effect of rendering the verdict either unsatisfactory or unsafe. In the

court’s view there was no miscarriage of justice; s. 3(1)(a) of the Criminal Procedure Act 1993.

The last ground of appeal suggests that the verdict in its overall totality was perverse. We see no basis upon which this ground could succeed. We are

satisfied on matters such as, alcohol, the initial complaint of assault, the quality of the CCTV footage and the visual evidence resulting from the informal

parade, that the jury were properly directed and that all potential infirmities attaching to such matters were brought to their attention. They also had the

opportunity of considering the witnesses at first hand. In all the circumstances we reject this ground of appeal.

In conclusion, leave to appeal is refused.