Court of Appeal dismisses murder appeal, upholding conviction after rejecting joint enterprise instruction error and late appeal grounds.

THE COURT OF APPEAL

Record No: 118/2012

Ryan J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Martin Morgan

Appellant

Judgment of the Court delivered on the 9th day of March, 2015 by Mr. Justice Edwards

Introduction

1. This is a case in which the appellant was convicted on the 15th March, 2012 of the murder of Mr Lucasz Rzeszutko on the 4th

October, 2010. The jury convicted the appellant by a 10:2 majority. The trial took place from the 27th February, 2012 until the 15th

March, 2012.

2. The appellant was sentenced on the 30th March, 2012 and received the mandatory sentence for murder of life imprisonment,

backdated to the 15th March, 2012.

3. The appellant was initially co-accused with two other persons, Stephen Byrne and Edward Byrne, respectively. All three were

charged with murder. At the arraignment hearing on the 27th February, 2012, Edward Byrne pleaded not guilty to murder but guilty to

manslaughter upon being arraigned, and that was accepted by the respondent. The other two accused, Stephen Byrne and the

appellant, pleaded not guilty to murder. The trial then proceeded against Stephen Byrne and the appellant, and opened before the

jury on the 28th February, 2012. On day three of the trial before the jury, the 2nd March, 2012, both Stephen Byrne and the

appellant were re-arraigned at their request. Stephen Byrne pleaded not guilty to murder but guilty to manslaughter upon being re-

arraigned, and that was accepted by the respondent. The appellant also pleaded not guilty to murder but guilty to manslaughter upon

being re-arraigned. However, counsel for the respondent indicated that his client was not prepared to accept a plea to manslaughter

in the appellant’s case, and thereafter the trial proceeded against the appellant alone on the charge of murder.

4. The appellant now appeals against his conviction on a number of grounds.

Evidence before the jury

5. The jury heard evidence that at about 4:20 am on the 2nd October, 2012 Mr. Lukasz Rzeszutko was on his way to work at a fish

processing facility in Newtown Industrial Estate in the Coolock area of Dublin. He was walking to work as he usually did, and he was

alone.

6. Mr. Rzeszutko was a Polish national, aged 27, and had been living and working in Ireland for approximately 3 years.

7. At the same time, five people were in the vicinity, having been drinking heavily the previous day into the early hours of the next

morning. These were Edward Byrne, Stephen Byrne, the appellant Martin Morgan, Angela Whelan and Lauren Mooney.

8. CCTV footage taken from a camera mounted on an adjacent business premises showed the victim approaching a crooked

crossroads within the Newtown Industrial Estate and within the sight of this group. It showed Stephen Byrne approaching the man

first, followed by the appellant and finally Edward Byrne. The CCTV did not show the assault itself, which occurred just off camera.

9. Lauren Mooney told the jury that Stephen Byrne walked over to ask the man for a cigarette and was joined shortly thereafter by

the appellant. She then said that “it happened”, that they just started hitting him. Stephen Byrne hit the victim first and then the

appellant did. The victim then fell and they kicked him while he was on the ground. She stated that he was being kicked in the

stomach and the legs. Lauren Mooney later accepted that when she made a statement to the Gardaí in the early aftermath she had

gone further and had said “Marto was really killing him, he was standing and whacking his foot off the man’s head. I didn’t want to

look.” Asked to explain why she had not mentioned that in her initial evidence to the jury, she said she just didn’t remember. She did

not suggest, however, that what she had said in her statement to the Gardaí had been untrue.

10. Lauren Mooney further stated that as the victim was being kicked by Stephen Byrne and by the appellant, Edward Byrne ran over

to try to stop it. In the melee he received a blow to the jaw from the victim and he then turned on the victim and also kicked him.

Edward Byrne then withdrew, followed by Stephen Byrne, and finally the appellant withdrew.

11. Angela Whelan told the jury that she recalled Stephen Byrne running over and hitting the victim a box or a dig in the side of the

face, followed by the appellant hitting him a dig. The man was screaming and trying to run away but could not get away because

Stephen Byrne was on one side of him and the appellant was on the other side of him, and both were blocking him. Edward Byrne then

ran over to stop it and the man hit him a kick in the lip or burst his lip. She stated that Edward Byrne hit him two digs in the side of

the arm and then withdrew. She herself was distressed and was crying at the time. After Edward Byrne withdrew he ran over to her

and put his arm around her, and they proceeded across the road and stood at a little wall waiting for the others. They were joined by

the others shortly afterwards.

12. The jury then heard the following evidence concerning what occurred as the group stood at the little wall:

Q. Now, when Stephen and Martin caught up with you at the wall, did you notice anything about them?

A. Yes, there was blood on Stephen's jumper, but he said it wasn't the man's blood, it was Adrian's blood. So, I just said

all right. I didn't ask anything else more about it and I seen blood on Marto's runners and his clothes and

Q. Okay. And was there any talking then, at that stage, about what had gone on?

A. Yes.

Q. Well, what was being said?

A. Well, I like, I was screaming, like, what happened and all and Stephen was, like, I don't know, we just hit him, and all.

Stephen was, like, I think he's dead and all and I was, like, don't say that. And Marto was, like, I don't think we killed him,

I don't know what like, I don't really remember.

Q. Okay?

A. Just that bit really.

Q. Well, that's okay, Angela. Just take it slowly for me. When Stephen and Martin were saying this, do you remember

Stephen saying anything about what he had done?

A. Yes.

Q. Well, what was that?

A. That he hit him two boots or two digs and one boot.

Q. Okay?

A. And

Q. And what sorry, you were going to add something, I beg your pardon, I'm after doing it again, I interrupted you?

A. And Marto said that he stood on his head and was standing on his head and all and

Q. Okay?

A. And then he just

Q. Martin said this to you; is that right?

A. To all of us.

Q. To all of you, okay. Now, I think you said then that you went to the shopping centre. After the shopping centre,

where did you go, Angela?

A. Home.

Q. And then the following day, do you recall meeting up with anybody or doing anything?

A. Yes, I met up with Stephen and Dean Purdue.

Q. Stephen and Dean Purdue, sorry, is that what you said? Yes, okay?

A. Yes.

Q. Excuse me one second, Angela. Just bear with me for one second, please. I'm almost done, Angela. I just I just want

to deal with one last thing, when you were talking with Stephen and Martin at the wall, before you went to Tescos and

they said what they said and you've told us that, do they explain to you, or do they show you what they meant?

A. Yes, like like, Marto, like, was saying I stood on his head and Stephen was, like, you were jumping up and down on his

head.”

13. At this point in the evidence, counsel for the appellant asked for the jury to be sent to their room, and then in the absence of the

jury applied, unsuccessfully, to have the jury discharged on the basis that the prosecution had elicited inadmissible hearsay that was

highly prejudicial to his client.

14. The jury further heard evidence that a colleague of the victim who was leaving work at 4.30am found the victim and an

ambulance was called. His wallet, rucksack and mobile phone were all present at the scene and the victim was taken to hospital with

numerous fractures to his skull and facial bones. His injuries were described in evidence as not survivable and he died two days later

on the 4th October, 2010.

15. The Assistant State Pathologist, Dr Kalid Jabbar, told the jury that in his opinion death was caused by significant and wide ranging

craniocerebral and facial injuries, directly caused by blunt force trauma.

16. Other evidence in the case concerned the finding of blood staining on certain clothing and footwear belonging to the appellant,

which was identified by DNA analysis to be that of the victim, as well as blood pattern analysis. The opinion of the expert in blood

pattern analysis was that the presence of contact type blood staining on the stitching of the appellant’s right runner, that matched

the victim’s DNA profile, was more likely to have been acquired if the appellant kicked and/or stamped on the victim, than if he was

present at the scene and did not kick and/or stamp on the victim. The appellant had voluntarily provided samples of his DNA to the

Gardai for comparison purposes.

17. The clothing and footwear of the appellant that were subjected to the forensic analyses just described were found in the course

of a search by Gardai of the home of the appellant’s mother, at which the appellant also resided. This search was effected on the

authority of a warrant issued by a District Judge on the 2nd October, 2010 pursuant to s.10 of the Criminal Justice (Miscellaneous

Provisions) Act 1997 (hereinafter the Act of 1997). The warrant in turn was issued on the sworn information of Sergeant Brian Clune.

18. The jury heard evidence of the circumstances of the search, including evidence that, on being admitted to the premises by the

appellant’s mother, Sergeant Clune explained to her and the other occupants of the house then present, one of whom was the

appellant, the reason why the Gardaí wished to search the premises. He further testified that he showed them the warrant and that

they all acknowledged that they understood.

19. Finally the jury heard evidence concerning the arrest of the appellant on the 3rd October, 2010 by Sergeant Donal Brazel for the

offence of assault causing harm, contrary to the Non Fatal Offences against the Person Act 1997, and his subsequent detention at

Raheny Garda Station pursuant to s.4 of the Criminal Justice Act 1984. The appellant was interviewed a number of times while so

detained and the jury received evidence concerning what he had said in these interviews. The appellant made limited admissions,

e.g., identifying himself on the CCTV footage that was shown to him, but denied that he had anything to do with an assault on the

victim.

20. The appellant did not give evidence himself, or call any evidence in his defence.

Grounds of Appeal

21. The appellant contends that his conviction is unsafe and unsatisfactory and seeks to have it set aside on the following grounds:

1. The learned trial judge erred in law and in fact in finding that the search warrant, purportedly issued in accordance

with s.10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended) relating to 22 Tonlegee Road, was

lawful and valid.

2. The learned trial judge erred in law in allowing the witness, Angela Whelan, to give hearsay evidence that was

prejudicial to the accused thereby rendering his trial unfair.

3. The learned trial judge erred in law in failing to accede to a Defence application to withdraw the case from the jury

after the Prosecution had, in the course of the trial, accepted manslaughter pleas from the second and third named

accused and in circumstances where the case had been opened on the basis of a joint enterprise being undertaken by all

of the accused to murder, thus giving rise to the risk of confusion in the minds of the jury and their falling into error by

presuming that as the appellant was still being prosecuted for murder that a manslaughter verdict was neither appropriate

and/or was applicable to him.

22. At the commencement of the appeal hearing, counsel for the appellant opened his case in a manner that indicated an attempt on

his part, without having obtained the prior leave of the Court, to argue Ground 1 upon an expanded basis, in effect attempting to

introduce two new grounds of appeal on the pretext that they were sub-grounds to the existing Ground 1. This was objected to by

counsel for the respondent, who indicated that he had had no notice of any new grounds, but that if he had been so notified he

would not in any event have been prepared to consent to them being argued.

23. In circumstances where there was no consent to the appeal being argued on an expanded basis, counsel for the appellant then

sought leave from the Court to expand his grounds. This application was opposed by the respondent, both on procedural and

substantive grounds.

24. The Court, having heard the parties’ respective submissions, retired to consider the application. Having done so, the Court later

re-convened and indicated that it was not disposed to accede to the appellant’s application to be allowed to expand his grounds, on

either basis on which he had wished to do so, and stated that it would give its detailed reasons for its decision in that regard at a

later stage. The Court will do so at the end of this judgment. However, before doing that it will first of all proceed to address the

substantive grounds of appeal that are legitimately before it.

Ground 1:

25. The appellant bases this ground of appeal on the assertion that evidence obtained during a search was inadmissible by virtue of

the fact that the warrant that purported to authorise it, issued pursuant to s. 10 of the Act of 1997, was defective on its face and,

as such, was invalid.

26. It is necessary at this point to set out the terms of s.10 of the Act of 1997. S. 10 of the Act of 1997, as substituted by s. 6 of

the Criminal Justice Act 2006, provides:

“(1) If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that

there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to

be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied

by such other members or persons or both as the member thinks necessary—

(a) to enter, at any time or times within one week of the date of issue of the warrant, on production if so

requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

(b) to search it and any persons found at that place, and

(c) to seize anything found at that place, or anything found in the possession of a person present at that place at

the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of

an arrestable offence.”

27. An “arrestable offence” is defined by s.2(1) of the Criminal Law Act 1997, as amended by s.8 of the Criminal Justice Act 2006, and

means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment or the

common law, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit

any such offence.

28. The required form of a warrant issued under s. 10 of the Act of 1997 as substituted, is specified by Order 34 Rule 17 of the

District Court Rules 1997 (S.I. 93 of 1997), as amended by the District Court (Search Warrant) Rules 2008 (S.I. No 322 of 2008) as

being that set out in specimen Form 34.38 annexed to the said rules. It is appropriate to reproduce Form 34.38:

No. 34.38

Criminal Justice (Miscellaneous Provisions) Act 1997, Section 10(1)

(as substituted by Criminal Justice Act 2006, section 6(1)(a))

SEARCH WARRANT

District Court Area of District No.

WHEREAS from the information on oath and in writing under section 10(1) of the above-mentioned Act of 1997 (as

substituted by section 6(1)(a) of the Criminal Justice Act 2006 ) sworn before me on this day,

by..........................................of

a member of the Garda Síochána not below the rank of sergeant

I AM SATISFIED THAT there are reasonable grounds for suspecting that—

evidence of or relating to the commission of an arrestable offence (within the meaning of section 2(1) of the Criminal Law

Act 1997 , as amended by section 8 of the Criminal Justice Act 2006 ) is to be found in a place (within the meaning of

section 10(6) of the Criminal Justice (Miscellaneous Provisions) Act 1997 ), namely

........................................................ in the court (area and) district aforesaid.

THIS IS TO AUTHORISE ,

of ............................................................., a member of the Garda Síochána, accompanied by such other members

of the Garda Síochána or persons or both as the said member thinks necessary,

TO ENTER, at any time or times within one week of the date of issue of this warrant, on production if so requested of this

warrant, and if necessary by the use of reasonable force, the place namely ........................................................ in

the said court (area and) district as aforesaid,

TO SEARCH that place and any persons found at that place, and

TO SEIZE anything found at that place, or anything found in the possession of a person present at that place at the time

of the search, that the said member reasonably believes to be evidence of, or relating to, the commission of an arrestable

offence.

Dated this ...... day of .......................... 20......

Signed ....................................................

Judge of the District Court

29. The search warrant at issue in the present case was produced to the Court of trial by Sergeant Brian Clune in the course of his

evidence on day six. It was substantially but not wholly in the form specified by the District Court Rules. It is appropriate at this point

to indicate that one of the bases on which the appellant sought to expand his appeal was to raise an objection as to the form of the

warrant. However, no objection as to form had been raised at the trial, or in the grounds of appeal as filed. In circumstances where

this Court has not seen fit to allow an expansion of the grounds of appeal, it does not need to concern itself with any irregularity as

to form per se.

30. However, while the original complaint raised in Ground 1 is a complaint as to the substance of the warrant, the fact that the

warrant deviates from the prescribed form is nonetheless a peripherally relevant circumstance. Critically, the curial part of the

warrant, which does not follow exactly the pro-forma wording specified by the District Court Rules, states:

“Whereas I am satisfied as a result of hearing evidence on oath of Sergeant Brian Clune, a member of An Garda Síochána,

not below the rank of Sergeant, of Santry Garda Station, that there are reasonable grounds for suspecting that evidence

of or relating to the commission of an offence referred to in subsection 1 and section 10 of the Criminal Justice

(Miscellaneous Provisions) Act 1997, as substituted by section 6 of the Criminal Justice Act 2006, to wit blood stained

clothing, is to be found in a place, namely [the address of the appellant’s mother’s home is specified]”.

It then goes on to authorise the Sergeant, accompanied by other members of An Garda Siochána, to carry out a search of the

property in question, and to seize relevant material found there, within one week from the date thereof.

31. The appellant asserts that the warrant was defective on its face, and therefore invalid, on the basis that the warrant does not

specify ‘an arrestable offence’ for which the warrant was granted. In particular, the appellant submits that, in light of the emphasis on

Article 40.5 of the Constitution of Ireland in the recent case of Damache v. The Director of Public Prosecutions [2012] 2 I.L.R.M. 153,

the provisions of the Act of 1997 pertaining to search warrants should be strictly construed. The appellant claims that the absence of

a reference to an arrestable offence on the face of the warrant goes to the root of the validity of the warrant and can be

distinguished from a mere technical defect.

32. This particular objection was raised before the court of trial on day six, and the trial judge, having heard submissions from both

sides, considered overnight various authorities to which he had been referred, including: The People (Director of Public Prosecutions)

v. Quilligan and O’Reilly (No 3) [1993] 2 I.R. 305; The People (Director of Public Prosecutions) v. O’Leary (unreported, Court of Criminal

Appeal, 29th July, 1998); Simple Imports Limited v. The Revenue Commissioners (unreported, Supreme Court, 19th January, 2000);

The People (Director of Public Prosecutions) v. Mallon [2011] IECCA 29 (unreported, Court of Criminal Appeal, 3rd March, 2011), and

Damache v. The Director of Public Prosecutions [2012] 2 I.L.R.M. 153.

33. On the morning of day seven of the trial, the trial judge ruled on the issue as follows:-

“On the face of the warrant, the requirements of the section have been satisfied and, as such, are not in issue before

me. The real objection raised by Mr McDermott, senior counsel, on behalf of the accused, is that the warrant should be

condemned because it fails to recite the nature of the arrestable offence grounding the application and he draws the

analogy with the Supreme Court decision in The People (Director of Public Prosecutions) v. Quilligan and O'Reilly [1986] 1

IR 495. Ms Donnelly, on behalf of the Director of Public Prosecutions has argued that the lack of such information on the

face of the warrant does not invalidate the warrants and she relies upon the Court of Criminal Appeal decision in the

Director of Public Prosecutions v. Donal O'Leary, delivered on the 29th of July 1988 and, in particular, she relies upon

what is stated by Mr Justice McCarthy, in delivering the judgment of the court at page 6 of the judgment, where he

states, in referring to section 29 of the Offences Against the State Act 1939: "This may cover a range of hundreds of

offences. The applicant argues that such an unrestricted form of warrant was too broad a sweep, that is a warrant "at

large." No authority in support of this proposition was cited to the Court, save to point, by analogy, to the more limited

form of warrant that is permitted to be issued under a variety of statutes, such as, for example, the Larceny Act 1916, or

the Misuse of Drugs Act 1984. These, however, are what may be termed judicial warrants as compared with the executive

warrants permitted under the 1939 Act and, for example, the Firearms Act 1925 and undoubtedly there is a distinction to

be drawn between judicial warrants and executive warrants."

Ms Donnelly further relies upon the Court of Criminal Appeal decision in The Director of Public Prosecutions v. Gareth

Mallon, delivered on the 3rd of March 2011, wherein there is an extensive and helpful review of the law regarding search

warrants.”

34. At this point in his ruling the trial judge referred in detail to the judgment of O’Donnell J. in the Mallon case, and quoted

paragraphs 30, 34, and 38 thereof in extenso. He then continued:-

“And by way of reply, Mr McDermott drew my attention to the recent judgment of the Supreme Court in the case of

Damache v. the Director of Public Prosecutions, a judgment that was delivered as recently as the 23rd of February last,

wherein the Court saw fit to condemn section 29 of the Offences Against the State Act 1939 and he has argued that, to

use my own expression, in these more enlightened days, one should not follow the earlier decision in the case of O'Leary.

I have given consideration to the omission that exists in the current world. I have considered the testimony that has been

given by Sergeant Clune. In the course of that evidence, Sergeant Clune has stated that he explained the reasons why

the search was to be conducted and he explained I shouldn't say he explained, but rather he stated that the occupants

of the house acknowledged their understanding of the reason for the search. Having regard to the fact that the warrant,

on its face, meets the statutory requirement and having regard to the fact that the occupants of the house acknowledge

their understanding of the reason for the search, I can find no grounds upon which I can condemn the warrant. It is not

as if, in the course of the warrant, or the execution of the warrant, that matters strayed beyond the matters that were

referred to in the warrant and, in particular, having regard to the fact that on the face of the warrant, it is made clear

that the purpose of the search is to search for blood stained clothing, it seems to me that the position is one where one

cannot argue that this warrant is completely at large insofar as anybody reading the warrant would understand that a

search for blood stained clothing is not something that is likely to arise out of, perhaps, a drug offence or a simple larceny

or robbery or matters of those natures. Accordingly, I determine that the warrant in this case is valid and evidence in

relation thereto and the search may be adduced in front of this jury.”

35. It is appropriate to digress momentarily at this point to allude to the statement by the learned trial judge at the commencement

of his ruling to the effect that the requirements of s.10 of the Act of 1997, as substituted, were prima facie satisfied on the evidence

before him, and that they were not in issue before him. The correctness of this assessment is reflected by a consideration of the

transcript as a whole and is beyond peradventure. Despite this, the second basis upon which the appellant had sought to be allowed

to expand his appeal was so that he could argue that the requirements of s.10 of the Act of 1997, as substituted, could not in fact

have been satisfied by the information provided to the District Court Judge by Sergeant Clune, and that accordingly the warrant had

been issued in excess of jurisdiction. That case was simply never made at the trial. Once again, in circumstances where the Court has

not been disposed to allow an expansion of the grounds of appeal, it does not need to concern itself with the jurisdiction to issue the

warrant and whether the requirements of s.10 of the Act of 1997, as substituted, were in fact satisfied on the evidence before the

District Judge.

36. Returning to the ground of appeal actually before the Court, the appellant challenges the correctness of the trial judge’s ruling

and says that the warrant was fundamentally bad and not capable of being relied upon in circumstances where it failed to specify on

its face the arrestable offence in respect of the commission of which there were said to be reasonable grounds for suspecting that

evidence was to be found in the place specified in the warrant. Consequently, he contends that his clothing and footwear were

seized in the course of an unlawful search based upon a flawed warrant, and that these fruits of an unlawful search constituted

evidence that ought to have been excluded from the jury as having been obtained in deliberate and conscious violation of his right,

and that of his mother, under Article 40.5 of the Constitution.

37. In support of his argument, counsel for the appellant referred the Court to The People (Attorney General) v. O’Brien [1965] I.R.

142; The Director of Public Prosecutions v. Dunne (unreported, High Court, Carney J., 14th October 1994); Damache v. The Director

of Public Prosecutions; Ryan v. O’Callaghan (unreported, High Court, Barr J, 22nd July 1987) and Simple Imports Limited v. The

Revenue Commissioners.

38. Particular reliance was placed upon the following statement from the judgment of Keane J. in Simple Imports:

“Given the necessarily draconian nature of the powers conferred by the statute, a warrant cannot be regarded as valid

which carries on its face a statement that it has been issued on the basis which is not authorised by the statute. It

follows that the warrants were invalid and must be quashed.”

39. In addition, counsel for the appellant contends that the decision in The People (Director of Public Prosecutions) v. Mallon and

upon which the respondent places much reliance, is materially distinguishable on its facts from the present case.

40. In reply, the respondent acknowledges that there is a great importance in the careful preparation of search warrants in light of

the fundamental rights which are being interfered with. However, the respondent submits that the statutory conditions for the

warrant have been met and that reference to a specific arrestable offence is not required by s.10 of the Act of 1997, as substituted.

In any case, the respondent contends, the absence of such information is not an error going to the jurisdiction of the warrant and as

such, is not sufficient to invalidate it.

41. In support of the submission that reference within the warrant to a specific arrestable offence is not required, the respondent

relies first upon The People (Director of Public Prosecutions) v. O’Leary. In that case the applicant argued that a warrant issued under

s. 29 of the Offences Against the State Act 1939 (hereinafter the Act of 1939) was invalid on the basis that it did not specify the

actual offence for which the warrant was issued. McCarthy J. upheld the warrant and stated:-

“The warrant is a printed form which allows for the insertion of the name of the authorising officer, the address of the

premises to be searched, the officer authorised to search, the description of the property and the name of the individual

to be searched with a provision for signature, rank and dating. The offences envisaged are under the Act of 1939, the

Criminal Law Act 1976, the schedules of offences provided for under Part V of the Act of 1939, and the offence of

Treason. This may cover a range of hundreds of offences. The Applicant argues that such an unrestricted form of warrant

has too broad a sweep, that it is a warrant "at large". No authority in support of this proposition was cited to the Court

save to point by analogy to the more limited form of warrant that is permitted to be issued under a variety of statutes as,

for example the Larceny Act 1916 or the Misuse of Drugs Act 1984 ... Section 29, as cited, does permit entry under a

valid warrant; the section states a variety of circumstances under which the appropriate Garda officer may validly issue a

search warrant; there may be circumstances under which offences under all of the several categories are suspected; the

warrant accords with the wording of the section and the entry of the dwelling was, thus, in accordance with the law.”

42. The respondent has further referred the Court to The People (Director of Public Prosecutions) v. Glass (unreported, Court of

Criminal Appeal, 23rd November, 1992). That was a case in which it was contended that a Superintendent issuing a warrant under s.

29 of the Act of 1939 should specify the scheduled offence he had in mind. This was likened to the situation where a person being

arrested under Section 30 of the Act of 1939 (or indeed, pursuant to any arrest power) must be told the reason for his arrest. The

Court of Criminal Appeal, per O’Flaherty J., rejected this submission, saying:

“The distinction between the two sections, it seems to us, is that it is very old law that a person on arrest must be told

for what he is arrested; under Section 29 the Superintendent was issuing a warrant in relation to evidence of the

intended commission or related to the intended commission of an offence and, of course, that warrant might be in relation

to premises of a person totally innocent. In this case it happens that the premises were those of a man afterwards

accused but the criteria governing the two sections are completely different. Clearly, the Superintendent or, indeed, the

person or persons supplying the information to him concerning the possible location of evidence may not be certain at all

of which of a range of offences might be the one on which evidence will be forthcoming. There might be an item of

evidence on premises that would be such in respect of all offences for the time being scheduled. But a person on arrest is

entitled to know with some particular clarity with what he is being charged so that he can decide the best course of

action he should take in relation to preparing an answer or defence to any possible charge. So this ground of appeal, the

Court holds, has not been made out.”

43. The respondent submits that notwithstanding that the cases of O’Leary and Glass, respectively, concern s. 29 warrants, the

dicta in relation to specifying the offence for which a warrant is issued are applicable. Accordingly, the respondent submits, there was

no requirement to specify the particular offence in the present case and the lack of such information does not invalidate the warrant.

44. Addressing the appellant’s reliance on the Simple Imports case, the respondent contends that that case is distinguishable on the

basis that the deficiency in the warrant in that case, which involved a failure to record the reasonable cause to issue the warrant,

went fundamentally to the jurisdiction to issue it, whereas the alleged failure in the present case is not one that goes to jurisdiction.

45. In support of the argument that an error that does not go to jurisdiction is not necessarily fatal, the Court was referred to The

People (Director of Public Prosecutions) v. Balfe [1998] 4 I.R. 50 and The People (Director of Public Prosecutions) v. Mallon. The Court

was referred with particularity to the reference in the judgment of O’Donnell J., who gave judgment on behalf of the Court of Criminal

Appeal in Mallon, to Hardiman J.’s decision in The People (Director of Public Prosecutions) v. Edgeworth [2001] 2 I.R. 131. O’Donnell J.

stated:-

“The present warrant features an inappropriate statement on the face of the document whose effect is to associate the

document with the District Court whereas in fact it was issued without any application to a judicial personage at all. It is

not however a statement calculated to mislead and there was no evidence before the learned trial judge that any person

was in fact misled. The status of the person actually issuing the warrant appears clear on its face.”

46. O’Donnell J. then noted that, in distinguishing the cases Dunne and Simple Imports, Hardiman J. had said, that each of those

cases had been “a failure to demonstrate that the conditions laid down by the legislature had in fact been met," echoing in this

respect the distinction that had been made in Balfe. In Mallon, O’Donnell J. held that:-

“[30] By contrast in the present case, all the statutory criteria could be seen at least on a prima facie basis to have been

met and the misdescription, which is the most that it could be called, was not a breach of any condition or criterion

imposed by the legislature and is simply an error. [Hardiman J.] concluded, at p. 137, "In my view there is no basis in law

for the proposition that this error invalidates a document which accords with all specified requirements of the law”.

[31] This reasoning is useful in attempting to understand the case law in this area. An error in a warrant does not

necessarily invalidate; it may be in the words of the judgment "simply an error" or a "regrettable misdescription". If,

however, it appears that a statutory precondition has not been satisfied (Kenny) or if the warrant does not so

demonstrate on its face (Simple Imports), the warrant will be invalid. Importantly, Dunne is analysed as a case where a

statutory precondition was not met, rather than a case of simple error. It is unfortunate that it does not appear that

Balfe was referred to in argument in this case. It would have been useful to have had the Supreme Court's analysis of

that case, but it seems probable that if considered correct, it could only be seen as a case that fell into the "simple error"

category. But the absence of reference to Balfe makes at least one thing clear: Edgeworth cannot be understood as

disapproving of either the decision or the reasoning in that case, as the learned trial judge here seemed to think.”

….

“[38] In the course of the judgment, the Court in The People (DPP) v. McCarthy also helpfully identified a number of

principles which it considered could be deduced from the earlier case law:

(a) Documents, such as search warrants, must be carefully prepared having regard to the fact that they entitle

Gardaí or other authorised officers to enter the property of a citizen, and in the course of so doing, to use such

force as may be necessary, both to gain admission and to carry out the search and seizure authorised by the

warrant;

(b) This cautionary approach is particularly enjoined when the search warrant is in respect of the dwelling house of

a citizen, in light of the recognition granted to such property under the Constitution;

(c) Although search warrants should be prepared carefully, not every error in such a warrant will, by virtue of the

same, lead automatically to the invalidation of a warrant;

(d) In particular where the substance of the warrant, as opposed to its form, is not open to objection, the

invalidation of the warrant will not necessarily ensue.

(e) The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental

nature, including an error going to jurisdiction. Several factors may be taken into account, including whether the

errors are mere mis-description, whether it is likely to mislead, whether it undermines the apparent jurisdiction to

issue it, according to the warrant on its face, and such matters, before the courts will find, in an appropriate case,

that it should he considered invalid.

(f) It is not possible in relation to non-substantive errors, that is to say, errors which do not affect the substance

of the legislative requirements found in the body of the warrant itself, to say that they will never lead to the

invalidation of a search warrant, due to the wide variety and nature of errors which may occur.’

This is a very helpful synthesis of the case law to date.”

47. It was submitted that in the present case the circumstances were such that there was no danger that the warrant would mislead

those to whom it was addressed. It was submitted that it was abundantly clear from the face of the warrant that it related to an

arrest for assault.

48. The Court was further referred to The People (Director of Public Prosecutions) v. Tyndall [2005] IESC 28 (unreported, Supreme

Court, 3rd May 2005). In that case the arrest of the applicant was held to be a valid arrest pursuant to s.30 of the Act of 1939 in

circumstances where no evidence was led as to the suspicion of An Garda Síochána that the applicant had committed a scheduled

offence at the time of the arrest. Denham J. stated:-

“I agree with the learned trial judge that the omission of direct evidence of the suspicion does not render the arrest

unsatisfactory if the suspicion may be inferred from the circumstances… Evidence of the suspicion of the arresting Garda

may be inferred from the circumstances, but evidence must exist from which it may be inferred.”

49. The respondent acknowledges that in Tyndall the circumstances were not such as to enable the Court to infer suspicion and this

ground of appeal succeeded. However, the respondent submits, the same principle applies to specifying an arrestable offence on a

search warrant under s. 10 of the Act of 1997, as substituted. It is contended that in circumstances where it was made clear on the

face of the warrant that the search was for blood stained clothing, it was apparent to the occupants of the house that the search

related to an assault in which harm was caused, i.e., blood was shed, and who in turn acknowledged their understanding of the

reason for the search.

50. Counsel for the respondent concluded on this issue by submitting that, in all the circumstances of the case, the trial judge was

entirely correct in allowing the evidence from the search to be adduced before the jury.

51. The Court accepts the submission of the respondent to the effect that a failure to state expressly, on the face of a warrant

issued under s. 10 of the Act of 1997, as substituted, that it relates to evidence of or relating to an arrestable offence is not

something that goes to the jurisdiction to issue the warrant, such that the absence of that information would automatically render it

invalid.

52. However, as the Mallon case makes clear, the mere fact that the deficiency complained of in this case does not go to jurisdiction,

and is therefore to be regarded as non-substantive, does not per se justify a conclusion that the deficiency did not invalidate the

warrant. Accordingly, the finding that the deficiency did not go to jurisdiction is not necessarily dispositive of the appellant’s

complaint.

53. The Court accepts that it ought to be clear from the warrant that the suspected offence is an arrestable one, so that the

person(s) to whom it is relevant, and whose constitutional rights it may have the effect of abrogating, may know the basis on which

it has been issued. It is certainly desirable that the warrant should expressly refer to an arrestable offence, and indeed that the

specific offence in question should be identified. However, the Court is also satisfied on the jurisprudence opened to it that if the

arrestable nature, and/or the specifics, of the offence can be inferred from the information on the warrant that will suffice, although

for persons whose constitutional right may be affected to have to rely on inferences is a sub-optimal situation.

54. This Court further agrees with the respondent that, in circumstances where the curial part of the warrant at issue in this case

refers to “evidence of or relating to the commission of an offence referred to in subsection 1 and section 10 of the Criminal Justice

(Miscellaneous Provisions) Act 1997, as substituted by section 6 of the Criminal Justice Act 2006, to wit blood stained clothing,” there

is sufficient basis for inferring that the offence in question was the offence of assault causing harm, contrary to s. 3 of the Non Fatal

Offences Against the Person Act 1997, which is an “arrestable offence” within the meaning of that expression as used in s.10 of the

Act of 1997. Even if the warrant had reproduced exactly the wording used in the form specified in the District Court Rules the exact

nature of the offence would not have been specified. The only substantive difference would have been that that which is specified in

the present as being “an offence” within the meaning of s.10 of the Act of 1997, as substituted, would have been expressly identified

as being “an arrestable offence” within the meaning of that section. However, as s.10 only applies to arrestable offences this detail

hardly advances matters.

55. The Court considers it unnecessary for the purposes of determining this appeal to express any view on whether the omission of

express information as to the arrestable nature, and/or the specifics, of the offence would be fatal if there was no basis for inferring

its existence, in circumstances where a sufficient basis in fact existed in the present case for inferring both the specific offence in

respect of which evidence was suspected to exist, and, from that, the fact that it was an arrestable offence within the meaning of

s.10 of the Act of 1997, as substituted. Moreover, the evidence was that the occupants of the house clearly understood the reason

for the search, i.e., that it was for blood stained clothing in connection with a suspected assault causing harm.

56. The Court also expresses no view as to the adequacy of the form of warrant specified in the District Court Rules in circumstances

where the warrant in the present case did not in any event reproduce it exactly. The issue as to whether the warrant should identify

not merely the fact that the offence is an arrestable one, but also specifically identify the offence, was not argued and therefore

does not require to be determined.

57. In conclusion, and for the reasons that have been stated, the Court is not disposed to uphold this ground of appeal. The Court is

satisfied that there was prima facie evidence before the trial court to support the view that the warrant had been validly issued by a

District Court Judge in accordance with s.10 of the Act of 1997, as substituted, and that it was duly executed and validly acted upon

in accordance with its terms. In the Court’s view, the trial judge was correct to allow the fruits of the search to go before the jury as

evidence.

Ground 2:

58. Ground 2 is pleaded in terms that “the learned trial judge erred in law in allowing the witness, Angela Whelan, to give hearsay

evidence that was prejudicial to the accused thereby rendering his trial unfair.” There are several premises underlying that complaint

that require examination.

59. The first premise in this ground of appeal is that the trial judged erred in allowing the witness, Angela Whelan, to give hearsay

evidence. An examination of the relevant portion of the transcript (reproduced at paragraph twelve above) indicates that he did

nothing of the sort even if, for the purposes of the argument, one were to accept that the impugned evidence was inadmissible

hearsay. The impugned evidence was not admitted by the trial judge following an application to exclude it in advance of it being

given. The trial judge was never asked to exclude it. Counsel for the appellant certainly protested after the evidence was given, and

asked the trial judge to discharge the jury, which the trial judge declined to do. However, that is a different matter to the judge

allowing the witness to give the evidence in question.

60. The second premise in this ground of appeal is that the impugned evidence was fact hearsay. That contention requires critical

examination, particularly in circumstances where the trial judge formed the view that it was not hearsay. However, before doing so it

may be useful to set out the objection articulated by defence counsel, and how exactly the trial judge dealt with it. The relevant

extract from the transcript records the following exchanges:-

“MR McDERMOTT: May it please the Court. In relation to this witness's evidence, the introduction of hearsay testimony

from a co accused

JUDGE: Doesn't constitute hearsay, Mr McDermott. Anything said by Stephen Byrne regarding the conduct of Martin

Morgan, if said in his presence and hearing, does not offend against the hearsay evidence rule.

MR McDERMOTT: Well, in my respectful submission, I'm in a position in this case which is unusual, in that I have a whole

series of interviews conducted with my co accused in this case, and in my significance, I'm not in a position to challenge

anything Stephen Byrne said in relation to this case with Stephen Byrne. I'm not in that position. He's a co accused.

JUDGE: Your client was present when this was said. Your client does not deny it, but rather he goes on, on the testimony

of this witness, to give a demonstration as to what is meant by standing on one's head.

MR McDERMOTT: That is what that is what is proposed to be given in evidence and what I'm submitting to the Court is

that I cannot challenge the basis of the Stephen Byrne assertion, because Stephen Byrne is not a witness in this case. I

cannot confront him in relation to that. I cannot confront him in any respect in relation to his story concerning this case.

JUDGE: You could have confronted him there and then and said that is nonsense, Stephen.

MR McDERMOTT: If I may conclude in relation to that, he has made given numerous interviews in relation to this matter,

all of which are out of the case by reason of the acceptance of the plea in this case to Stephen Byrne, equally in relation

to Edward Byrne, it doesn't arise on this application. But in my respectful submission, I'm being prejudiced by the

introduction of this kind of material into the case, where I'm not in a position to confront the person who makes the

assertion, who's a co accused of mine and has, in my respectful submission, a status in this case that is not the norm and

renders it unfair that it should be introduced in this fashion, and that's my submission to the Court. And my application is

to discharge the jury on that basis. May it please the Court.

JUDGE: I don't need to hear you. I'm satisfied that it is not a situation for which the jury should be discharged. Anything

that might have been said by Stephen Byrne in the presence and hearing of Martin Morgan, regarding the behaviour of

Martin Morgan, does not offend against the hearsay evidence rule, as I understand the hearsay evidence rule. Further, I

see no prejudice, or no potential prejudice, as regards the suggestion that Stephen Byrne might have said these matters,

in circumstances where, as I understand the statement of Angela Whelan, the accused, Martin Morgan, agreed with the

suggestion that he had been standing on the head, and I'll use the expression that's used in the book of evidence,

standing on the head of the deceased. And not alone does he confirm that he was standing on the head, but he proceeds

to give a demonstration of his conduct and, as I understand the statement of the witness, Angela Whelan, she, in fact,

gave a demonstration to the Garda Síochána as regards the manner in which the demonstration was given to her and to

others by Martin Morgan. So, I do not consider there is any merit in the application and I do not propose to accede to it.”

61. In argument before this Court, counsel for the appellant has continued to maintain that the impugned evidence was hearsay.

Beyond asserting this, the appellant’s submissions do not seek to explain on what basis it must be regarded as hearsay. Rather, they

proceed on the basis that the evidence is self evidently hearsay.

62. In response, counsel for the respondent contends that the learned trial judge was correct in his ruling that the evidence did not

constitute hearsay.

63. Whether or not an out of court statement is hearsay or non hearsay is a different issue to whether or not a hearsay statement is

admissible or inadmissible. However, these two concepts are commonly conflated even amongst the most experienced legal

practitioners. In saying this, the Court recognises the reality that when some lawyers say that an out of court statement is not

hearsay this is frequently shorthand for saying that the statement in question is not inadmissible hearsay, but rather that it is

admissible as an exception to the hearsay rule. It seems to this Court, however, that the trial judge was clear in his understanding of

the law and that he was certainly not conflating the two concepts.

64. Whether or not the out of court statement of Stephen Byrne was properly to be regarded as hearsay or non hearsay depended

upon the purpose for which it was intended to be used. If, on the one hand, it was adduced, not just to establish that the statement

was made, but also for the purpose of relying upon the truth of its contents, then it was hearsay. In other words if was being relied

upon as testimonial evidence rather than as original evidence, that rendered it hearsay. If on the other hand it was adduced merely

to establish that the statement was made, it was not hearsay.

65. The position in that regard was succinctly stated by Kingsmill Moore J. in Cullen v. Clarke [1963] I.R.368 at p.378:-

“[I]t is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as

to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions,

that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the

reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath.

This is the rule known as the rule against hearsay.

66. Macdonald JA in the Canadian case of R v. Baltzer (1974) 27 CCC (2d) 118 put it in these terms at p.143:-

“Essentially it is not the form of the statement that gives it its hearsay or non-hearsay characteristics but the use to

which it is to be put. Whenever a witness testifies that someone said something, immediately one should then ask, ‘what

is the relevance of the fact that someone said something’. If, therefore, the relevance of the statement lies in the fact

that it was made, it is the making of the statement that is evidence – the truth or falsity of the statement is of no

consequence: if the relevance lies in the fact that it contains an assertion which is, itself, a relevant fact, then it is the

truth or falsity of the statement that is in issue. The former is not hearsay, the latter is.”

67. In addition, a statement to similar effect is to be found in R v. Rattan [1972] A.C. 378, where Lord Wilberforce said:-

“The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is

no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the

speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only

arises when the words spoken are relied on ‘testimonially’, i.e. as establishing some fact narrated by the words.”

68. It is clear that in the present case that it was open to the prosecution to seek to rely on the impugned evidence either as original

evidence, in which case it would not be hearsay, or as testimonial evidence, in which case it would be hearsay. However, the position

is that when the impugned evidence was objected to by the defence the prosecution did not make clear the purpose for which they

were seeking to adduce it, and so this Court is left in the position of having to infer the purpose for which it was adduced.

69. The Court is prepared to infer that the prosecution adduced the evidence in question as original evidence, rather than testimonial

evidence in two circumstances. First, the prosecution did not address the court at all on the issue at the time that the evidence was

being objected to. That was understandable in circumstances where the trial judge immediately responded indicating that it was his

firm view that the evidence was not hearsay, because “[a]nything said by Stephen Byrne regarding the conduct of Martin Morgan, if

said in his presence and hearing, does not offend against the hearsay evidence rule.” That was a correct statement of the law

providing the prosecution had adduced the out of court statement in question as original evidence only, which the trial judge

manifestly believed to be the position. Assuming it had indeed been the prosecution’s intention to rely on it simply as original evidence

there was no need in the circumstances for counsel for the prosecution to say anything. Secondly, close examination of the closing

speech made by counsel for the prosecution reveals that at no point does he invite the jury to treat the impugned evidence as

testimonial. Rather, the emphasis is on the admissions made by the appellant himself during the conversation at the low wall, which

were of course admissible against him under the exception to the hearsay rule which allows declarations against interest to be

admitted.

70. It is clear from a consideration of the trial judge’s ruling that he believed that the impugned evidence was being adduced as

original evidence in order to demonstrate that the appellant, in addition to making oral admissions during the conversation, had made

further admissions by his conduct. The trial judge clearly had in mind the principle that an oral statement by a third party, made in the

presence of the accused, which amounts to an accusation that the accused was guilty of wrongdoing, may amount to an admission

by that party if he, by his words, conduct, actions or demeanour, can be considered to have accepted or admitted the truth of what

was stated. See Evidence (2nd ed) by Declan McGrath (Round Hall, 2014) at paragraph 5-112 et seq, also see The People (Director

of Public Prosecutions) v. Finnerty [1999] 4 I.R. 364 where Keane J. at p. 376 explains the circumstances in which evidence of this

sort can be relied upon non testimonially, in stating:-

“Nor is the appeal concerned with the possible admissibility in evidence, of a statement made in the presence of a

defendant, accusing him of a crime, upon an occasion which may be expected reasonably to call for some explanation or

denial from him. Such a statement, although not evidence against him of the facts stated, may be accepted by him, by

word or conduct, action or demeanour and it is then the function of the jury which tries the case, to determine whether it

was accepted by him, in whole or in part: (see Archbold on Criminal Pleading, Evidence & Practice,1999 ed., 15 - 390).”

71. The impugned statement of Stephen Byrne was clearly capable of being used as original evidence to support an admission on the

part of the appellant by his conduct, in that if the appellant had not been jumping up and down on the victim’s head, as Stephen

Byrne accused him of doing, it was reasonably to be expected that he would have denied doing so. He did not deny doing so, and so

his conduct in acquiescing in, and ostensibly accepting the truth of, Stephen Byrne’s accusation constituted evidence in itself that

was admissible against him.

72. In the circumstances the Court finds that the trial judge was correct in his ruling, and that the second premise to this ground of

appeal is consequently flawed.

73. The third premise in this ground of appeal is that the impugned evidence was not only hearsay but inadmissible hearsay. Strictly

speaking, it is unnecessary for this Court to engage with this contention in circumstances where it is satisfied that the evidence was

not hearsay at all. However, it is worth remarking that even if the impugned evidence had been relied upon testimonially, it would

have been admissible in any event under the exception to the hearsay rule that permits hearsay evidence of declarations explaining

the performance of an act forming part of the res gestae to be admitted.

74. Developing this somewhat, as the trial judge noted, the witness had already given evidence that the appellant had said that he

had stood on the head of the deceased. What the witness was recounting was a conversation that the appellant was a part of. The

scene in which this conversation took place was captured by the CCTV which showed the appellant demonstrate how he had kicked

the deceased in the head. The witness gave evidence as to what the appellant had actually said (that he stood on the deceased’s

head) and what was said about him in the conversation. What Stephen Byrne said served to explain the appellant’s words and actions

during the conversation, in circumstances where what was stated by Stephen Byrne was acquiesced in and was not repudiated in any

way by the appellant at the time.

75. Support for this is to be found in the evidence given by Angela Whelan immediately after the jury had returned to court after the

application for a discharge of the jury had been refused. The transcript records the following exchange:

Q. Okay. And you had said that Stephen had said something about what had gone on; isn't that right?

A. Yes.

Q. Okay. And then what did Martin say in reply to that?

A. To what Stephen said?

Q. Yes. When they were talking about

A. He just

Q. When they were talking about what had happened?

A. Marto said that he stood on his head.

Q. Okay, and did he explain that or did he how do you know what he meant by that?

A. Like, because Stephen was showing us, like, that he was standing up and down and

Q. Was it Stephen was doing that?

A. Yes.

Q. Right. And what was he doing? He was showing you what happened, is that right?

A. Yes.

Q. And was Martin there at that point?

A. Yes.

Q. And did Martin say anything at that stage?

A. No, I can't remember. I just remember Martin saying that he jumped on his head and just that, really.

Q. Right. And how did you understand that? What did you take from that when he said that to you?

A. Well, by standing on his head, like, obviously like jumping on his head.

76. In the circumstances the Court considers that the third premise in this ground of appeal is also flawed.

77. The fourth premise underlying this ground of appeal is that the admission of the impugned evidence rendered the appellant’s trial

unfair. In the appellant’s written submissions a detailed case is made as to the alleged unfairness occasioned to him as a result of

hearsay evidence that was prejudicial to him having been wrongly adduced. In particular, stress was laid, as indeed it was before the

trial judge, on potential difficulties associated with testing the evidence in question such as an inability to confront and cross-examine

the maker of the hearsay statement in circumstances where that person was a co-accused. The Court was referred to various

commentaries, cases and authorities in support of the alleged unfairness, including passages from Evidence (now in its 2nd edition) by

Declan McGrath (Round Hall, 2014); Wigmore on Evidence; In re Berkley (1841) 4 CAMP 402; The State (Healy) v. Donoghue [1975]

I.R. 325; Donnelly v. Ireland (unreported, Supreme Court, 22nd January 1998); and Borges v. The Medical Council (unreported,

Supreme Court, 29th January 2004)

78. In response, counsel for the respondent has argued that it was open to counsel for the appellant to seek to cross-examine Ms

Whelan, which cross-examination could conceivably have neutralised any prejudice in the impugned evidence or elicited other

evidence beneficial to the defence.

79. This Court agrees with the respondent. Considerations such as those raised by the appellant would only be relevant if the

impugned evidence had been wrongly admitted in circumstances where it was inadmissible hearsay. Moreover, the appellant was not

deprived of an opportunity of testing the evidence. The point that it was open to defence counsel to cross-examine Angela Whelan is

well made, and such cross-examination could conceivably have neutralised the prejudice in the impugned evidence or elicited other

evidence beneficial to the defence. It could have been suggested to her that the words had not in fact been spoken by Stephen

Byrne if indeed that was the case. Alternatively, if it was accepted that the words had been spoken, it was open to counsel to

suggest to the witness that they were open to an interpretation other than that contended for by the prosecution, or that they did

not in fact serve to explain the appellant’s words and actions during the conversation at the low wall.

80. In all of the above circumstances the Court is not disposed to uphold Ground of Appeal 2.

Ground 3

81. This ground of appeal is advanced on the basis that the appellant claims that his trial was fundamentally unfair by reason of the

fact that it began as a case based on an allegation of murder by joint enterprise and then became one of murder by one accused

only. This is said to arise in circumstances where the prosecution, having opened the case to the jury on the basis of joint enterprise,

failed to give any indication to the jury after Stephen Byrne had changed his plea, that the legal concept of joint enterprise which

had been explained to them in the opening by the prosecutor was no longer relevant and could not apply to the remaining accused,

and where the judge’s charge was allegedly insufficient to dispel the risk of confusion in the minds of the jury arising from what had

occurred.

82. In support of the suggestion that the jury might have been confused, the Court was referred by the appellant to the case of The

People (Director of Public Prosecutions) v. McGrath (unreported, Court of Criminal Appeal, 11th of March 2013) in which Hardiman J.

stated:-

“The Court is of the opinion that there is a considerable conceptual difficulty in saying that the case is posited exclusively

on joint enterprise but that only one of the defendants is in fact guilty of murder.”

and that:-

“It is also the opinion of the Court that there was an inherent contradiction from the start in conceiving of the case as

being one of murder by joint enterprise and at the same time one on which Mr Pinder might be regarded as merely guilty of

manslaughter”.

83. In reply to this, counsel for the respondent has referred this Court to what the trial judge actually said in the course of his charge

concerning joint enterprise. The trial judge told the jury:-

“So, the issue, ladies and gentlemen, of a joint enterprise is no longer in the frame here but a joint enterprise or the

concept of a joint enterprise in law is that where two people or two or more people engage in a particular course of

action they are all responsible for the actions of one another if what occurs is within the contemplation of what was

planned. If you take the example of an armed robbery on a post office or a bank and you have three armed individuals

who go into the bank and a fourth individual who sits outside with the engine of the car running ready to make good the

getaway. Although that individual doesn't enter the bank he is as guilty of the bank robbery as the three who go in

because it is part and parcel of the joint enterprise that the bank is going to be robbed and he is going to be outside

waiting to get them offside as fast as he can.

And you can have tacit agreements. If there's an assault going on and I go and join in on that then I am equally

responsible for the other individual or other individuals who were involved in that. If perhaps somebody is robbing a

handbag from an individual and another individual steps in to prevent the lady chasing the man who has taken her

handbag then he is as guilty of the handbag snatch as the other individual because he has been partaking in the

enterprise that was going on. So, that is what is involved in a joint enterprise but the concept no longer arises here.

What you're asked to do is decide the guilt of the accused man of murder on the basis of the evidence of his involvement

and only on the basis of his involvement in this particular activity.”

84. It seems to this Court that the trial’s charge concerning the non-application of the principles relating to joint enterprise to the

case against the appellant was entirely clear and unambiguous. There is no tenable basis for believing that the jury might have been

confused. They received a clear and readily understandable instruction, just before they retired to deliberate, that they had no need

to concern themselves with the concept of joint enterprise. To the extent that the trial judge saw fit to explain the principles of joint

enterprise to the jury, he did so, in circumstances where they had previously been mentioned to the jury as being potentially

relevant, precisely for the purpose of emphasising that those principles were no longer relevant.

85. In this Court’s view the judgment in the McGrath case is of no relevance to the issue raised, and it is in any case readily

distinguishable on its own very peculiar and unusual facts.

86. In all of the above circumstances the Court is not disposed to uphold Ground of Appeal 3.

Conclusion

87. The Court, in circumstances where it has not seen fit to uphold any of the grounds of appeal relied upon by the appellant,

dismisses the appeal.

Reasons for the refusal to allow additional grounds to be argued

88. The Court was not disposed to allow the proposed additional grounds to be argued having regard to the decision of the Supreme

Court in The People (Director of Public Prosecutions) v. Cronin (No 2.) [2006] 4 I.R. 329.

89. This Court considers that no cogent explanation was advanced on behalf of the appellant as to why the matters sought to be

relied upon as additional grounds were not raised at the trial.

90. The appellant was represented by experienced senior and junior counsel, and by a solicitor, at the trial. There is no reason to

believe that the failure to challenge the warrant on the additional grounds now sought to be raised could not have been strategic.

91. The late raising of additional points, either based on a trawl of the transcript, or otherwise without good and sufficient reason, is

to be deprecated. If, indeed, there had been good grounds for seeking to ventilate additional matters upon this appeal, the

appropriate procedure in the absence of consent to an amendment to the Notice of Appeal was to bring a motion on notice to the

other side seeking leave to amend, which motion should have been grounded upon an affidavit explaining why the points had not been

raised at the trial, and why the interests of justice required that they should now be permitted to be argued. That was not done in

this case.

92. In the circumstances, the Court considers that the application for leave to amend the Notice of Appeal to include the additional

grounds sought to be relied upon was both procedurally and substantively misconceived.