Court of Appeal dismisses murder appeal, upholding conviction where jury found facts against weight of evidence.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

No. 12/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

James Connors

Appellant

JUDGMENT of the Court delivered on the 21st day of December 2016 by

Mr. Justice Birmingham

1. On the 17th December, 2015, the appellant was convicted of the offence of murder following a thirteen day trial. The verdict was

by a 10 – 2 majority. The appellant now appeals against that conviction.

Background

2. In summary the evidence at trial was that on the night in question, the 24/25th January, 2012, the appellant called to the home of

the deceased at No. 14 Hollyville Heights, Wexford. Words were exchanged between the appellant and the deceased while the

deceased was at the window of his apartment on the second floor and the appellant was on the ground outside the apartment. As

the appellant walked away from the door, the deceased emerged from the apartment and followed the appellant carrying a miniature

baseball bat with metal studs. The prosecution suggested that CCTV footage established that the appellant waited for the deceased

to emerge from the apartment and to begin following him.

3. A physical altercation took place between the appellant and the deceased in another part of the housing estate, outside No. 26

Hollyville Heights. The location of the actual physical altercation was not covered by CCTV. There were independent witnesses who

suggested that the first blows were struck by the deceased with the baseball bat. The altercation ended and the deceased was seen

on CCTV walking back towards his apartment still carrying the miniature baseball bat but holding his side. When he arrived home his

girlfriend/partner was concerned about his condition and called an ambulance and also the gardaí. It emerged that he had been

wounded in the side and he died from his injuries.

4. In subsequent interviews with gardaí, the appellant admitted stabbing the deceased a number of times during the altercation, but

claimed that he was acting in self defence in circumstances where the deceased had attacked him first and was striking him with the

baseball bat.

5. It was not in dispute at the trial that the deceased died as a result of wounds inflicted by the appellant, but the issue was

whether the appellant was acting in self defence. The appellant sought a verdict of not guilty, but as a fall back position a verdict of

not guilty of murder but guilty of manslaughter. The appellant now appeals and has advanced a number of different grounds of appeal.

6. These might be summarised as follows. Grounds contending that several elements of inadmissible evidence were in fact admitted. A

ground of appeal relating to the extension of the appellant’s period of detention. Grounds relating to the judge’s charge, the length of

the jury deliberations and a contention that the verdict of murder was perverse and against the weight of the evidence.

Inadmissible evidence

7. This ground gives rise to a number of sub issues namely two issues arising from the evidence of witness Samantha Hoare, an issue

arising from the evidence of witness Mary Connors and an answer given by the appellant during the course of questioning while

detained.

8. The two issues that arise from the evidence of Samantha Hoare relate to evidence given by her about an earlier altercation

between the deceased and the appellant which took place some weeks before the fatal incident and also evidence given by her about

telephone conversations that she had with the appellant some three years earlier. To put these arguments in context, it is necessary

to explain that Samantha Hoare was the girlfriend/partner of the deceased. She had in the past been in a relationship with the

appellant and that relationship ended at a time that James Connors was serving a prison sentence.

9. Her evidence was that as the relationship ended, that Mr. Connors rang her on a number of occasions from prison and in the course

of these calls, stated that when he got out that he would kill whoever it was that she was with at that stage. Her evidence was also

that there was a physical altercation between the appellant and the deceased prior to Christmas 2011 during the course of which the

deceased was stabbed by the appellant.

10. The admissibility of each of these aspects of the evidence was challenged, but the trial judge ruled that the evidence sought to

be tendered by the prosecution was admissible.

11. There was also a procedural aspect to this arising from the fact that the statement of evidence of Samantha Hoare that was

contained in the book of evidence did not deal with either of these issues. This was so notwithstanding the fact that the statement

of evidence taken by the gardaí shortly after the incident had seen Ms. Hoare deal with both topics and it appeared that her original

statement was then edited for inclusion in the book of evidence by the deletion of the sections that dealt with these issues.

12. On the first day of the trial on the 30th November, 2015, the prosecution served a notice of additional evidence to be given by

Ms. Hoare dealing with the two topics. The position then was that the evidence that was now being indicated as that which would be

given by Samantha Hoare coincided with her original statement made to the gardaí which had been made available to the defence as

part of the disclosure process.

13. Counsel for the appellant has accepted that he was not in a position to make the argument that the conduct of the defence had

been impaired by reason of the late service of additional evidence, but said that what had happened was wrong and unfair.

14. The Court would deprecate the fact that the defence was only informed on the first day of a trial that had been listed previously

on two occasions that the prosecution intended to adduce significant additional evidence. However, while that was far from a

satisfactory state of affairs it was evidence of which the defence were on notice and it is accepted that the defence were not

impaired in the conduct of the defence. In those circumstances the focus has to be on the substantive issues of whether the specific

sections of the evidence should have been admitted.

The prison phone calls

15. Ms. Hoare’s evidence was that about “three years ago” when Mr. Connors was in prison that she had told him that their

relationship was over but that he “kept ringing me from prison and he said ‘no matter who you are with when I get out, I’m going to

kill him’. I think he thought I was with someone else at that stage, which I wasn’t”.

16. On behalf of the defence it has been argued that this amounted to evidence of prior misconduct which was not sufficiently

relevant to any particular issue in the case and to the extent that the evidence had any probative value at all, that this was clearly

outweighed by its prejudicial effect. The appellant says that this evidence was very tenuous and that the phone calls, if made, were

made long before Ms. Hoare had started going out with the deceased Jason Ryan. Accordingly they could not be construed as a

threat directed at the deceased and so they had very limited probative value.

17. In the Court’s view the telephone evidence was of probative value. The accused threatened that when he got out of prison that

he would kill whoever was the person that Ms. Hoare was going out with. He did exactly that and in a situation where a key issue at

trial was whether the accused was acting in self defence or whether he intended to kill or cause serious injury, then the relevance of

this evidence is obvious. The Court is of the view that the evidence in relation to the phone calls received was highly relevant and it

was properly admitted. The defendant has contended that the evidence was prejudicial in that it established that the appellant had

been in prison some three years prior to the incident and by implication since then. The jury had heard through admissions made

pursuant to s. 22 of the Criminal Justice Act 1984, that he had been released, on temporary release from prison on the 18th

December, 2011, and so this was indicating to the jury that the matter which had led to his imprisonment was a serious matter giving

rise to a significant sentence. However, while that is the defence contention that is not necessarily so. While it was possible that the

appellant’s imprisonment at the time of the fatality and some three years before, was explained by a lengthy sentence where a matter

of real seriousness was involved, it was also possible that the appellant had served a number of short sentences for minor matters.

The pre-Christmas altercation

18. Ms. Hoare was permitted to give evidence in relation to a physical altercation that she said had occurred “before Christmas”

involving the deceased and the appellant in which she says that the deceased suffered stab injuries. The issue of particular concern

from the perspective of the defence is that the evidence puts Mr. Connors in possession of a knife in a public place which he was

prepared to use in certain circumstances to inflict injuries. The defence says that two evidential rules are engaged which should have

resulted in the exclusion of the evidence namely, the general rule that even relevant evidence can be excluded when its prejudicial

effect exceeds it probative value and secondly, the so called rule against misconduct evidence. The classic statement of the rule

against misconduct evidence is to be found in the case of Makin v. the Attorney General for New South Wales [1894] AC 57. There

Lord Chancellor Herschell, in a much quoted passage, commented:-

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been

guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the

accused is a person likely from his criminal conduct or character to have committed the offence for which he is being

tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does

not render it inadmissible if it is relevant to an issue before the jury, and it may be so relevant if it bears upon the

question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to

rebut a defence which would otherwise be open to the accused.”

It may be noted that the Lord Chancellor went on to add:-

“The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line

and to decide whether a particular piece of evidence is on the one side or the other.”

19. The passage of time has proved the correctness of that observation about the difficulty in drawing the line.

20. The matter was the subject of detailed consideration by the Supreme Court in the case of People v. Kirwan [1943] I.R. 279.

There, the appellant had been convicted of the murder of his brother. He had served a term of penal servitude for another offence

previously and for a number of different reasons the prosecution was anxious to adduce evidence arising from his period in custody.

The prosecution case was that a limbless trunk of a human body had been found in a bog some distance from where the brothers

lived. There was evidence that the dismembering of the body could have been effected only by a person possessed of some

anatomical skill and knowledge such as that possessed by a doctor, veterinary surgeon or butcher and the prosecution was anxious to

establish that the appellant had that knowledge. The complicating factor was that he had acquired the knowledge because he had on

a number of occasions butchered the carcases of pigs while in custody in a manner that was very similar to what had been performed

on the torso. The prosecution was also anxious to put before the jury evidence that while in custody the appellant had been

administered a particular drug “luminal” for insomnia and had thus become acquainted with the effects of that drug. The relevance of

this was that the prosecution were suggesting that an occupant of the Kirwan house had been drugged with luminal so that he would

not observe the disposal of the body and clothing of the deceased. The third matter of interest to the prosecution was that it was

suggested that the appellant was in possession of significant sums of cash shortly after his brother disappeared, his brother having

been in possession of significant sums of cash and the prosecution was anxious to establish that during the years the accused spent

in custody he was not in a position to earn money. The Court of Criminal Appeal and the Supreme Court, to which the matter went on

a s. 29 certificate, were all agreed that the appeal should be dismissed, but there were certainly differences of approach evident in

the Supreme Court. Black J. in particular felt that the evidence in relation to butchering skills and familiarity with luminal could have

been adduced, if that was sought without any reference being made to the fact that the appellant had at one stage been a prisoner.

21. The issue is considered in recent time in the Supreme Court in the case of DPP v. McNeil [2011] IESC 12. This case raised the

issue of whether or not so called “background evidence” is admissible in a case involving allegations of sexual abuse where the

prosecution sought to adduce evidence of abusive conduct outside the parameters of the indictment.

22. In the course of her judgment, Denham J. pointed out that “background evidence” in the context under consideration had a

specific meaning. It was evidence which is relevant and necessary to a fact to be determined by the jury. At para. 50 of her

judgment, under the sub-heading “The Test”, she observed as follows:-

“In considering whether background evidence may be admitted, relevant consideration may include:-

(i) Consideration of whether the background evidence is relevant to the offence charged.

(ii) Consideration of whether background evidence is necessary to make the evidence before the jury complete,

comprehensible, or coherent. Whether without such background evidence the evidence may be incomplete,

incomprehensible or incoherent.

(iii) Consideration of evidence of the commission of an offence with which the accused is not charged, but that is not of

itself ground for excluding the evidence.

(iv) Consideration of whether the background evidence may be necessary to show the real relationship between the

relevant persons.

The test to be applied by the court is whether the background evidence is relevant and necessary. The test is not that it

would merely be helpful to the prosecution to admit the evidence.”

23. The defence has focused in particular on the statement that the test to be applied is whether the background evidence is

relevant and necessary and the further statement that the test is not that it merely be helpful to the prosecution to admit the

evidence.

24. In contending that the evidence in relation to the physical altercation was of little if any probative value, the appellant has

emphasised the fact that the witness commented that she did not know who “struck the first blow”. However, in the view of the

Court, the focus on the comment that she did not know who struck the first blow does not fully reflect the tone and tenor of her

evidence and hence its relevance in the context of the case. Her overall evidence to this topic left no room for doubt but that in her

view it was the appellant who initiated contact and it was he who was the aggressive party. It was he who according to her started

the row. Indeed, in the course of cross examination she indicated that before the appellant approached her late boyfriend and herself

that he had been hiding in bushes outside the apartment.

25. In these circumstances the question of whether the appellant was initiating a physical confrontation some weeks before the fatal

incident was of considerable significance and the fact that he was prepared to use a knife and inflict wounds was also of significance.

Accordingly, in the Court’s view the issue was of such significance and such relevance it was properly admitted in evidence.

Issues arising from the evidence of Mary Connors

26. This issue arose on day 4 of the trial. Ms. Connors was a distant relative of the appellant and it appears that he was staying with

her during the period that he was on temporary release from prison. He had an amount of contact with her on the night of the fatal

stabbing. In particular Ms. Connors arranged to collect the appellant at a location known as the Faythe in Wexford and did so just

before he was arrested by the gardaí for being unlawfully at large. According to her statement in the book of evidence, as the

appellant got into her car, a garda car pulled up alongside them and gardaí got out and approached her car. Her statement stated

that the appellant dropped a phone in the passenger seat and told her to “delete the numbers”. Ms. Connors took the phone home

and according to her deleted the numbers but also went further and deleted the “call logs and texts”. The admissibility of the

evidence as to what was said to Ms. Connors by the appellant was challenged by the defence on the basis that it was prejudicial. It

was said that the jury might speculate that the appellant might have wanted to have the numbers deleted because the phone would

provide an indication that he was involved in some form of criminal activity other than the incident involving Jason Ryan.

27. The prosecution contended that the evidence was admissible as it showed the destruction of potential evidence in circumstances

where the accused had just recently been involved in a violent incident as a result of which someone had been stabbed and had died.

Before this Court, counsel for the Director has indicated that the prosecution interest was in part motivated by the fact that it

showed the appellant in control of his situation and making decisions for himself and that went some distance to rebutting the

suggestion from the defence that he was very intoxicated and not fully in control of his actions. The Court was somewhat surprised

at this submission on the part of the prosecution as it was not an argument that was addressed to the trial judge.

28. In considering the significance of this aspect of the evidence and the extent to which it is prejudicial, the Court notes that there

was evidence at trial that Mr. Connors had burned a hoodie that he had been wearing and that Ms. Connors washed the clothes that

he was wearing. Against that background, the evidence in relation to the phone was really of quite limited significance. Taken in

conjunction with the evidence in relation to the washing of clothes and the hoodie it does indicate that the appellant’s instincts were

to block or impede garda lines of inquiry. Such evidence is relevant and that the prosecution would have an interest in adducing it is

understandable. In the view of the Court, they were entitled to do so.

Failing to exclude a portion of an interview dealing with CCTV cameras

29. The issue arises out of a question put to the appellant during the course of interview No. 3 of his detention. The question and

answer in dispute were as follows:-

“Q. Have you ever been at Jay’s house before?

A. No, never in Jay’s house but would have walked past it on the way to Jim’s. Too many cameras around here. I wouldn’t

live up here. I remember saying to Jim or Womper.”

30. The defence objected to the reference to “too many cameras around here” and said that the prejudicial effect of this answer

exceeded its probative value. The prosecution submitted that the evidence was relevant to their case that the appellant was very

aware and cognisant of the location of cameras and deliberately lured the deceased to a part of the estate which was not covered

by CCTV cameras. The judge dealt with this issue by saying that if it was part of the prosecution case that the accused man lured

the victim into an area where there were no cameras, then in her view that was relevant and so the phrase “too many cameras

around here” should not be redacted from the memorandum of interview. However, she felt that the balance of the answer namely “I

wouldn’t live up here, I remember saying to Jim or Womper” should be deleted.

31. The Court agrees with the trial judge’s approach. The prosecution was making the case that the appellant set out to lure the

deceased to a particular part of the estate and did so for a very particular reason. In those circumstances the prosecution had a

legitimate interest in establishing his level of awareness in relation to CCTV cameras. Both at trial and on appeal, the appellant has

drawn attention to the fact that the issue was raised in the course of a later interview, interview No. 5, when the question was

asked “would you have been aware there is CCTV in Hollyville Heights” and the answer given “yah”. However, in the Court’s view this

later question does not tip the balance against admitting what was said in interview No. 3.

The failure to exclude evidence arising from the period of detention following the purported extension of the detention by

Chief Superintendent Roche at 10.32 pm on the 27th January, 2012

32. This issue arises against the following background. On the 25th January, 2012, James Connors was arrested at 11.00 a.m. at

Wheatfield Prison. He was brought to Wexford garda station where Garda David Fitzgerald was acting as Member in Charge by

Detective Garda Patrick O’Brien and Garda Brian Cummins. Garda Fitzgerald decided to detain Mr. Connors when an application in that

regard was made to him pursuant to s. 4 of the Criminal Justice Act 1984.

33. At 4.50 p.m. that day, Superintendent Gralton, on foot of an application from Detective Sergeant Griffin, authorised the extension

of the detention. Then, at 10.32 p.m. a further detention for a period of twelve hours was authorised by Chief Superintendent John

Roche. During the course of detention, the appellant was interviewed on seven occasions in all. The fourth interview was in progress

at the time that Chief Superintendent Roche extended the detention further. There were no admissions to murder at any stage and in

broad terms Mr. Connors took a consistent position that he had acted in self defence. However, while no admissions as such were

made, the defence took the view that answers given by Mr. Connors during the course of the last three interviews, interviews

conducted following the extension of the detention by Chief Superintendent Roche, were unhelpful from their perspective and they

sought the exclusion of evidence arising from this period. In that regard, it is the case that the prosecution referred to certain

matters that arose from these later interviews when closing the case which lends support to the defence view that Mr. Connors

situation was not helped by what he had to say at the later interviews.

34. The primary ground on which the admissibility of the later interviews is challenged is that the extension of the detention was not

recorded in writing by Chief Superintendent Roche, or perhaps more accurately that there was no evidence before the Court that the

extension was recorded in writing. While that was the issue in the case, the defence also pointed to the fact that there was no

evidence that Superintendent Gralton, who had authorised an earlier extension, had recorded that in writing and a point was also

raised about the validity of the decision by Member in Charge Fitzgerald to initially detain the appellant.

35. While there was no issue about the admissibility of what was said during the earlier interviews, the roles played by Member in

Charge Fitzgerald and Superintendent Gralton were significant because the prosecution in seeking to establish that Chief

Superintendent Roche had validly extended the detention were required to establish that at the time he purported to do so that Mr.

Connors was in lawful custody.

The role of the Member in Charge

36. Garda Fitzgerald gave evidence in the course of a voir dire that at 12.35 on the 27th January, 2012, he was acting as Member in

Charge when Garda Brian Cummins, the arresting garda, applied to him seeking the detention of Mr. Connors pursuant to s. 4 of the

Criminal Justice Act 1984. He gave the following evidence:-

“Q. And did Garda Cummins inform you of the reasons why he was requesting you to do this?

A. He did.

Q. And did he explain the ongoing investigation into the death of Mr. Ryan?

A. He did judge. As part of that conversation, judge, Garda Cummins informed me that a large number of inquiries had

been made involving door to door inquiries and examination of CCTV for the area concerned judge. He also informed me

that there was a large number of witness statements – had been – made and had been recorded in writing within those

witness statements, judge. Garda Cummins informed me that Mr. Connors had been placed at the scene of the alleged

incident before and after the incident judge.

Q. Yes? And having considered the information given to you by Garda Cummins, I think you made a decision to grant his

application to have Mr. Connors detained?

A. That’s correct judge.”

37. It was submitted on behalf of Mr. Connors that the evidence that was adduced was not sufficient to establish either that the

Member in Charge had the requisite opinion required by s. 4(2) of the Criminal Justice Act 1984, or, if he did have that opinion that

there were no reasonable grounds for such a belief. The defence say that at its height, the evidence of Garda Fitzgerald was that

information was given to him which put Mr. Connors at the scene, but did not go any further than that and did not indicate that there

was any basis for believing that he had any involvement in the crime.

38. The prosecution submitted that the evidence established that the Member in Charge, both subjectively and for objective reasons

believed that the appellant’s detention was necessary for the proper investigation of the murder of the deceased. The trial judge

dealt with the matter in these terms:-

“This Court is satisfied that on the evidence of Garda Fitzgerald as a Member in Charge at the relevant time,

notwithstanding that he did not give direct evidence, that he subjectively believed that Mr. Connors' detention was

necessary and objectively that he was satisfied that there was reasonable grounds for his belief, that he did in fact

subjectively believe his detention was necessary, and that there were reasonable grounds for his belief. And this Court

can satisfactorily infer the same given that he clearly stated in his evidence that he had been informed that Mr. Connors

had been arrested on suspicion of the murder of Jason Ryan, and following a consideration of the information given to him

by Garda Cummins he made a decision to have Mr. Connors detained in accordance with s. 4 of the Criminal Justice Act

1984. Accordingly, the Court rejects the submissions of the defence in relation to that aspect of the application.”

39. In the Court’s view this was essentially an issue of fact to be resolved by the trial judge. In the Court’s view the conclusion

arrived at by the trial judge was one that was open to her. One aspect that was relevant to her consideration, which is also relevant

to the role played by Garda Fitzgerald, was that this was a case where Mr. Connors was taken from prison to be arrested and that

had happened on foot of a warrant issued by a court. Therefore this ground of appeal fails.

The lack of evidence that the decisions to extend the detention were recorded in writing

40. This is an issue which arises in relation to the authorisations from both Chief Superintendent Roche and Superintendent Gralton to

extend the detention of the appellant. Neither officer dealt with the question of whether their decision to authorise an extended

detention was recorded in writing. Following argument the matter was dealt with as follows by the trial judge:-

“This Court is not in a position to find on the evidence of either Superintendent Gralton or Chief Superintendent Roche

that the oral extension granted was recorded in writing as soon as practicable. There is simply no evidence in that

respect. However, the Court considers that a failure to comply with this requirement does not necessarily lead to a

conclusion that the prisoner’s continued detention therefore becomes unlawful. It is of course the statutory requirement

touching upon the right to liberty, but within the general context of the section it cannot be considered to be of the first

importance.

The Court is satisfied on the evidence of both the Superintendent and the Chief Superintendent that the first and second

extensions of detention were validly granted. There is no suggestion that the accused was not properly informed of each

extension of detention. There is no indication of a policy to ignore the record and requirements of the Act. In the

circumstances and on reading the section the Court finds that the failure to prove compliance with this particular aspect

does not oblige you to rule that either of the extended periods of detention should be regarded as unlawful. The Court

having considered the evidence, the submissions made, the statutory authority and the case law relied upon is satisfied

that the application by the defence fails on all grounds.”

41. The statutory provision which was in issue here is s. 4 (3)(c) of the Criminal Justice Act 1984 which provides a direction to extend

the detention of a detained person made under para. (b) or (bb)) may be given orally or in writing and if given orally shall be recorded

in writing as soon as practicable. Paragraph (b) relates to the power of a Superintendent to direct a further detention for a period not

exceeding six hours and para. (bb) relates to the power of a Chief Superintendent to direct the further detention for a period not

exceeding twelve hours.

42. The defence says that the obligation is clearly mandatory and that there is nothing in the terms of s. 4 to indicate that a failure

to comply with the requirement shall not of itself affect the lawfulness of the detention or the admissibility of evidence. It points out

that this is to be contrasted with the provisions of s. 5 of the Criminal Justice Act 2006, in relation to the designation of a place as a

crime scene which again provides that the direction may be given orally or in writing and if given orally that it shall be recorded in

writing as soon as reasonably practicable, but it goes on to provide that a failure to record the direction shall not by itself render any

evidence inadmissible. It is of course also the case that there is a provision that a breach of the custody regulations as distinct from

a breach of the Criminal Justice Act does not of itself render any evidence inadmissible.

43. In the Court’s view, the conclusion reached by the trial judge was the appropriate one. The position is that a Superintendent has

the power to direct the further detention for a period of six hours and the Chief Superintendent, the power to direct the detention for

a still further twelve hours. That the Superintendent and Chief Superintendent authorised the extended detentions was not in dispute

and the evidence in that regard was unchallenged. In those circumstances, in the view of the Court, the fact that there was no

evidence from either the Superintendent or Chief Superintendent dealing with the recording in writing does not render the detention

unlawful or the evidence arising from that detention inadmissible.

44. In passing and in passing only, because the issue was not dealt with in the course of argument, the Court would simply draw

attention to the evidence of Garda David Fitzgerald on the 7th December, 2015. At p. 5 of the transcript, the following exchange

between prosecution counsel and Member in Charge is recorded:-

"Q. I think the prisoner was returned to his cell and at 16.50 hours you were informed that an extension of questioning

had been granted by Superintendent Gralton for a period of six hours, is that right?

A. That’s correct judge.

Q. I think its 16.51 you spoke to the prisoner and informed him of this and by whose authority and the length of time of

the extension?

A. That’s correct judge."

At p. 6 the following question and answer is recorded:-

"Q. Now, at 22.46, I think you informed Mr. Connors that his period of detention had been further extended by Chief

Superintendent Roche?

A. That’s correct judge.

Q. And this extension was for a period of twelve hours commencing from 22.32 is that right?

A. That’s correct judge.

Q. And this was in accordance with the provision of the Criminal Justice Act 1984 and I think at 23.31 hours, the fourth

interview concluded?

A. That’s correct judge."

At p. 10 the following questions and answers are recorded:-

"Q. And during his detention, I think you say – did you – did you look after all the provisions of the Criminal Justice Act,

Treatment of Persons in Custody Regulations?

A. Yes judge I believe I did so.

Q. Yes and made all relevant entries into the custody record?

A. Yes Judge.

Q. And that custody record is there?

A. Yes judge I have it here with me."

45. It is abundantly clear from a reading of the transcript of the evidence of Garda Fitzgerald that he was giving his evidence by

reference to the custody record so that in fact it appears that the authorisations to extend detention were recorded. It will be noted

that the statutory obligation is not on the Superintendent or Chief Superintendent to record the directions in writing, but rather the

directions should be recorded. It should also be noted that Chief Superintendent Roche, concluded his direct evidence by saying that

he directed Detective Sergeant Griffin, who had sought the extension of the detention, to inform the Member in Charge of his decision

and to have his decision recorded in the custody record of the prisoner at Wexford garda station. It is slightly surprising that the trial

judge was not reminded of this aspect of the decision. In truth there appears to be little substance to this point.

46. A further issue is raised that is specific to the evidence of Chief Superintendent Roche. The issue arises in the following

circumstances. In the course of his direct evidence, Chief Superintendent Roche stated as follows:-

“Judge, I authorised the further detention of the prisoner at 10.32 p.m. as I had reasonable ground for believing that the

further detention was needed for the proper investigation of the offence for which he had been arrested and detained.”

47. In cross examination the following exchange took place:-

"Q. At the time you made that decision, what to your mind was that offence?

A. It was a serious assault at – at the time."

48. On behalf of the appellant it was submitted that the prosecution was required to prove that the Chief Superintendent had the

requisite state of mind and that such state of mind had to relate to the “proper investigation of the offence concerned”. In this case

the offence was murder, but it was argued that the evidence established that Chief Superintendent Roche erroneously believed that

Mr. Connors was being detained on suspicion of an assault.

49. The trial judge dealt with this matter as follows:-

“This Court is satisfied to infer from the evidence of Chief Superintendent Roche that he had the requisite state of mind,

that the further detention of Mr. Connors was necessary for the proper investigation of the offence in respect of which

he had been detained up to that point, namely, the offence of murder. And the Court does not accept the contention by

the defence that the answer given in cross examination by the Chief Superintendent in relation to serious assault could

only relate to s. 3 or s. 4 in the light of the whole of the evidence as given by Chief Superintendent Roche.”

50. In the Court’s view the conclusion reached by the trial judge was certainly one that was open to her. This emerges with particular

clarity if one looks to the introductory questions to the examination in chief. There it is recorded:-

“Q. [Mr. Clarke (prosecution counsel)] Sorry, did you receive a communication from Detective Sergeant Griffin of Wexford

garda station?

A. That’s correct judge, he telephoned me.

Q. Yes and were you made aware of circumstances under which James Connors had been arrested?

A. Yes judge.

Q. And that he was being detained under the provisions of s. 4 of the 1984 Act, as amended, is that right?

A. Yes, judge, yes judge.

Q. Did Detective Sergeant Griffin explain to you the background facts and the investigation which was in progress?

A. Yes judge he did.

Q. Did he inform you concerning the detention of James Connors?

A. Yes judge.

Q. And did he set out reasons why he was requesting an extension of the detention?

A. Yes judge, he did.

Q. Can you tell the Court what they were as you recall?

A. Yes judge. My recollection – my recollection, judge is that the prisoner had been interviewed on three occasions and

the fourth interview had just commenced. It was outlined to me that there was extensive CCTV footage from the scene in

the estate of Hollyville Court to be viewed and the – and to be analysed and the result of examination of that CCTV was

to be put to the prisoner. There was a number of exhibits including an alleged weapon used in the alleged incident to be

put to the prisoner during further interview. There was mobile phone analysis of both the prisoner and the witnesses after

the alleged incident, and the result of the analysis was to be put to the prisoner during further interview. And also the

statements and interviewing of the potential witnesses had not yet been completed and when completed the result of

such statements was still to be put to the prisoner.

Q. As a result of all that information, what decision did you make?

A. Judge I authorised the further detention of the prisoner at 10.32 p.m., as I had reasonable grounds for believing that

the further detention was needed for the proper investigation of the offence for which he had been arrested and

detained.

Q. And authorised that he be detained for a further twelve hours?

A. Yes judge. At 10.32 p.m. I authorised the prisoner’s twelve hour detention and I informed Sergeant Griffin of my

decision and I also directed Sergeant – Detective Sergeant Griffin to inform the Member in Charge of my decision, and to

have my decision recorded in the custody record of the prisoner at Wexford garda station.

Q. Yes thank you."

51. If the evidence of the Chief Superintendent is viewed in the round there was certainly a basis for the judge concluding that the

Chief Superintendent was very much on top of the investigation and aware of the developments that had taken place up to that point

including the details of his arrest and detention. Therefore the appellant is unsuccessful with this ground of appeal.

Issues that were grouped together in argument

Failure of the trial judge to properly relate the principles governing self defence to the evidence in the case

52. It is acknowledged by the defence that the trial judge gave the jury comprehensive directions in relation to the general principles

of law governing self defence. However counsel on behalf of the appellant submitted that at that stage the trial judge made only a

very brief reference to the evidence in the case which was of relevance from a defence perspective. At another stage in her charge,

the trial judge, it is accepted by the defence, provided a comprehensive summary of the evidence, but it is said that this was not

related by the trial judge to the general legal principles. At the conclusion of her charge, the trial judge was requisitioned and the

judge indicated that she had no difficulty re-charging the jury. However, it is said that in re-summarising the evidence she omitted to

deal with witnesses that were significant from a defence perspective.

53. In the Court’s view, this was a case where the issues were very straightforward. It was not in dispute that Mr. Ryan had met his

death at the hands of James Connors, but the issue was whether James Connors was acting in self defence. No elaborate direction

was required to be given to the jury in order for them to identify all of the evidence that they had heard that was relevant to this

issue. Read as a whole, the charge and re-charge were careful, comprehensive and balanced and this ground is rejected.

Refusal to discharge the jury after they had completed in excess of nine hours deliberation

54. At first sight this might seem a somewhat surprising requisition. Indeed, it becomes even more surprising if one has regard to the

contents of the transcript. At 4.00 p.m. on the 15th December, 2015, (day 12 of the trial) after the jury had been deliberating for

nine hours and 30 minutes, the following exchange took place between the trial judge and the foreman:-

"Judge: Right, Mr. Foreman thank you very much. Is there any prospect of you reaching a majority decision or are you

disagreed?

Foreman: I think if we had another half an hour, maybe an hour, we could reach a decision."

55. The jury were asked to retire at that stage and in their absence counsel for the appellant applied to have the jury discharged

having regard to the lengthy period of time they had been deliberating. The trial judge refused the application and, because it was

not possible for the Court to sit later that day or indeed on the following day, the jury was asked to return on Thursday the 17th

December, to resume their deliberations. On that morning when the judge asked the jury to resume their deliberations, she informed

them that if a majority of at least ten of them could not agree, that was called a disagreement and that the issue paper should be

completed accordingly. At that stage the jury retired and deliberated for a further period of 1 hour and 41 minutes before reaching a

majority verdict.

56. In fairness to counsel for the appellant, he explained that this ground of appeal, and the next which contends that the verdict of

the jury was perverse and against the weight of the evidence is to be seen in the context of the fact that this was a particularly

finely balanced case. The Court does not disagree that this was a finely balanced case, but it was nonetheless entirely proper that in

a situation where the jury were indicating that further time would be of use to them and that they were likely to be in a position to

reach a verdict to give the jury the opportunity to conclude their deliberations. The Court has no hesitation in rejecting this ground of

appeal.

The verdict of the jury was perverse and against the weight of the evidence.

57. The Court has accepted that this was a finely balanced case, but it was quintessentially a case for the jury to consider. There is

no possible basis on which this Court could substitute its view of the facts for that of the jury. The findings of fact in this case were,

by virtue of the Constitution, a matter for the jury and the jury alone. For this reason, the Court must dismiss the appeal. In doing so,

it has regard to well established jurisprudence such as the case of the People (DPP) v. Luke Egan [1990] ILRM 780 about the primacy

of the jury as judges of fact.

58. The Court has considered each of the grounds of appeal but it has not upheld any of them and so the Court must dismiss the

appeal and affirm the conviction.