Court of Appeal allows appeal against robbery conviction due to inadmissible hearsay evidence regarding vehicle registration.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Record No; CCA 120/13

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Derek Lynch

Appellant

Judgment of the Court (ex tempore) delivered on the 3rd day of March 2016 by Mr. Justice Edwards

1. This is an appeal against conviction and sentence.

2. The appellant, Derek Lynch was convicted at Cork Circuit Criminal Court on the 25th April, 2013, following a two day jury trial by a

10-2 majority verdict of the following two offences:

1. That on the 20th May, 2010, at Friar’s Road Post Office, Friar’s Road, Turners Cross, Cork, he robbed Bernadette Foley

of €2,594 and

2. That on the 20th May, 2010, at Friar’s Road Post Office, Friar’s Road, Turners Cross, Cork, he had with him a firearm

namely, a handgun with intent to commit an indictable offence namely, robbery contrary to s. 27B of the Firearms Act

1964, as substituted by s. 60 of the Criminal Justice Act 2006, as amended by s. 39 of the Criminal Justice Act 2007.

3. The appellant was sentenced on the 2nd May, 2013, to nine years imprisonment with the final twelve months of that sentence

suspended on the usual terms.

4. This judgment is concerned solely with the appeal against conviction.

5. The appellant in his Notice of Appeal challenges his conviction on two grounds:-

1. The trial judge erred in principle in allowing evidence taken from the garda PULSE system to be adduced as evidence of

registration of the vehicle in question to be considered by the jury.

2. The trial judge failed to properly instruct the jury as to the weight to be given to the evidence adduced as to the

ownership of a vehicle used during the course of the robbery in question.

6. In order to consider these two grounds of appeal, it is necessary to consider the background to the case as well as the

submissions of the appellant and the respondent.

Background

7. On the 20th May, 2010, the post office in Friar’s Road, Cork City, was raided by a person acting alone and brandishing a firearm.

The cashier Bernadette Foley locked herself into a backroom after pressing the panic button. The raider used a sledge hammer to gain

access to the cashier’s area and robbed the sum of €2,594. The incident was captured on the post office CCTV system. The raider

left driving a motor cycle. The registration number of the motor cycle was recorded by a witness as being 03-C-18578.

8. During the course of the trial, evidence was adduced from Sergeant Ian Coughlin that he checked the registration number provided

by the witness on the garda PULSE system and the system indicated that the appellant was the registered owner. The admissibility of

this evidence was not challenged at the time it was adduced, but later on, yet before the prosecution case had closed, an objection

was raised by defence counsel in which he complained that the evidence that had been adduced from Sergeant Coughlan had not

been the proper way of proving the registered ownership of a motor vehicle, and that moreover no evidence as to the reliability or

otherwise of the PULSE system had been adduced. In effect the judge was being asked at that point to tell the jury to disregard the

evidence of Sergeant Coughlan concerning the checking of the registration number on the PULSE system. Counsel acknowledged that

this application was possibly a pre-mature one at the point at which he was raising it, and suggested that if the court was not then

disposed to accede to it he could, and would, raise the issue again at the close of the prosecution case. The application was not

acceded to and the issue was in fact revisited in the course of a direction application at the close of the prosecution case, and this is

dealt with separately below.

9. The jury also heard other evidence that was adduced from Garda Donal Casey who said that when he viewed the CCTV footage of

the incident he recognised the appellant as being the raider. It was accepted that almost entirely throughout the incident the raider

was unrecognisable as had had a scarf wrapped around his head. However, Garda Coughlan testified that the scarf had slipped for a

brief moment and exposed some of the raider’s face, and that he had been able to recognise and identify the appellant from this brief

exposure.

The Application for a Direction

10. At the end of the prosecution case counsel for the appellant applied for a direction on a number of grounds including, inter alia,

that it would be unsafe to allow the case to go to the jury because the evidence adduced from Sergeant Coughlan concerning the

checking of the registration number on the PULSE system was potentially unreliable, and it had not, in any event, been the proper

way of proving the registered ownership of a motor vehicle.

11. The trial judge refused the application for a direction on all grounds.

12. With respect to the ground of complaint based on the evidence adduced from Sergeant Coughlan he stated:

“In my opinion, the position is follows, in relation to the gathering of the number of the bike, it was very accurate and

specific information from a number of very careful lady witnesses as to how that was recorded and transferred to the

guard. The guard then, in the course of his investigations, checked the PULSE and came up with a registered owner, no

more than that. But that evidence and what weight the jury are to put, if any, on that evidence or whether the bike

and, as it were, the owner, have anything to do -- I mean, they could be satisfied that the bike had something to do

with the robbery but not the owner. But it's a piece of evidence which the jury are in the circumstances of this case

entitled to have put before them what they make of it, and its infirmities if any are a matter for them.”

Submissions

13. The appellant says that the evidence of Sergeant Coughlan, as to whom the PULSE system identified as being the registered

owner of the motorcycle, should never have been led as it was inadmissible hearsay; and that that evidence having been improperly

led before the jury, and it being a matter of such importance and so potentially prejudicial in the circumstances of the particular case,

the trial judge should have acceded to the application for a direction.

14. The respondent seeks to meet this objection by relying on the fact that the admissibility of the controversial evidence was not

challenged at the time that it was adduced before the jury, nor was the hearsay nature of the evidence specifically put forward as

being a matter of concern at the time of the application for a direction. In the light of these circumstances the respondent has

sought to rely upon the decision of the Supreme Court in The People (Director of Public Prosecutions) v Cronin (No 2) [2006] 4 I.R.

329 as being authority for the proposition that the appellant should not be permitted to do so now

15. It was further contended that quite apart from the hearsay nature of the evidence adduced from Sergeant Coughlan, there no

evidence before the court to suggest that PULSE records could be regarded as being prima facie reliable and to seek to rely on such

records was not in any event the proper way of proving the registered ownership of a motor vehicle. Rather, it was submitted, the

proper way for the prosecution to have proved the registered ownership of the motor vehicle at issue was to utilise the procedure

provided for in s. 60 of the Finance Act 1993. It is suggested that for these reasons also the case should have been withdrawn from

the jury.

Discussion and Analysis

16. We have considered the submissions of both parties in respect of this appeal against conviction.

17. Had the defence wished to challenge the evidence obtained from the PULSE system then the proper way of doing this would have

been for defence counsel to have flagged an intention to object to the evidence proposed to be given by Sergeant Coughlan in

advance of any such evidence actually being given, to have asked in a timely fashion for the jury to be sent out, to have then

objected on the basis that the proposed evidence was inadmissible hearsay, and then, if the objection was being resisted, to have

asked the judge to conduct a voir dire and to rule on the admissibility of the evidence. None of this was in fact done.

18. By the same token, it is clear from the transcript that an objection to the evidence was subsequently raised, albeit late in the day

and after the evidence had already been given before the jury. However, although it is obvious that counsel for the appellant had

become sufficiently concerned to voice an objection, it is also obvious that he had not thought through the situation which had arisen

in terms of all its implications because even then the objection actually articulated did not focus on the real infirmity, which was that

the evidence of Sergeant Coughlan should never have been led by the prosecution because it was manifestly hearsay. Rather, the

objection as articulated focussed on the potential unreliability of the evidence and the fact that it had not been the proper way of

proving the registered ownership of a vehicle.

19. Amongst the primary mischief’s that the case of The People (Director of Public Prosecutions) v Cronin (No 2) seeks to deprecate

and address is the practice of appellants seeking to raise on an appeal a point that, for tactical or strategic reasons, was not taken

at trial. In particular it deprecates the practice of transcript trawling to that end by a new legal team brought in for the appeal.

However, the Cronin (No 2) case also establishes, inter alia, that it may still be appropriate for an appellate court to permit an

additional ground to be argued, that has not been raised at the trial, where it is of the view that, due to some error or oversight of

substance, a fundamental injustice has occurred and an explanation had been furnished as to why the point was not raised at trial.

20. It is clear to us having regard to the run of the case as revealed by the transcript, that in this case the failure to object to the

admissibility of the evidence of Sergeant Coughlan before it was adduced could not have been a strategic or tactical decision.

Counsel for the respondent very properly conceded as much. In the circumstances we consider that the suggested explanation,

namely that it was most likely due to inadvertence, is credible in the circumstances of the case.

21. That being the situation, and in circumstances where inadmissible evidence of a profoundly prejudicial nature was inappropriately

led by the prosecution, notwithstanding that it was not objected to by the defence in a timely fashion, or even belatedly on a

correctly focussed legal basis, we consider that the interests of justice require this court to intervene. We do not therefore consider

that this is a proper case in which to permit the respondent to rely on The People (Director of Public Prosecutions) v Cronin (No 2) to

prevent the appellant from complaining about the hearsay nature of the evidence in controversy.

22. The hearsay evidence of Sergeant Coughlan concerning his consultation of the PULSE system was clearly inadmissible and should

never have been led. The fact that it was not expressly objected to did not have the effect of rendering what was legally inadmissible

admissible. We are satisfied that in this case the defence cannot in justice be regarded as having acquiesced in a relaxation of the

rule against hearsay. The fact that inadmissible hearsay was admitted before the jury renders, in the particular circumstances of the

case, the appellant’s convictions unsafe and unsatisfactory.

23. Accordingly the appeal against the appellant’s convictions will be allowed, the said convictions will be quashed and this Court will

direct a retrial of the appellant on both counts on the indictment.