THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J.
153/12
154/12
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
JOHN DUNDON AND WAYNE DUNDON
APPELLANTS
Judgment of the Court delivered on the 30th day of May 2016 by
Mr. Justice Birmingham
1. In February and March 2012, the appellants stood trial in the Special Criminal Court charged with offences of threatening to kill or cause serious harm and in the case of Wayne Dundon, the second appellant, charges also of intimidating a witness. After a ten day trial John Dundon was convicted on count No. 1 on the indictment which was a count that alleged that on the 3rd April, 2011 at Hyde Road, Limerick, he threatened one April Collins. Wayne Dundon was convicted on counts 3, 4, 9 and 10. Count 3 related to a threat made to Alice Collins on the 30th September, 2011, that he would kill or cause serious injury to her son Garrett Collins. Count 4 related to a threat made to Alice Collins on the same occasion that he would kill Jimmy Collins, also a son of hers, while counts 9 and 10 related to counts of intimidating on the 30th April, 2010, Alice Collins and her daughter April Collins, potential witnesses in proceedings. Each appellant has appealed against the conviction. In the case of Mr. Wayne Dundon, there was also an application by the Director of Public Prosecutions to review the sentence imposed on him on grounds of undue leniency. In circumstances where there appeared to have been a degree of delay on the part of Wayne Dundon in bringing on his appeal against conviction, the Court agreed to hear the undue leniency application and having done so refused to interfere with the sentence that had been imposed by the Special Criminal Court. There is a separate ruling dealing with that aspect.
2. The second named appellant, Wayne Dundon, brought a motion seeking leave to argue additional grounds and then, during the course of the motion hearing made a subsidiary motion seeking to adduce additional evidence for the purpose of arguing the additional grounds. The Court refused the application to argue additional grounds and adduce new evidence. When doing so, it set out its reasons briefly and this judgment will return to that issue.
3. By way of background, it should be explained that the backdrop to the trial was to be found in tensions between members of the Dundon family and the Collins family and also involving members of another family, the Killeen family. It is convenient to deal first with the conviction of John Dundon, who was convicted in respect of events that occurred on the 3rd April, 2011. The injured party in that case, April Collins, had been involved in a relationship with Gerard Dundon, brother of the appellant John Dundon. The relationship started when she was fifteen years of age, she became pregnant and moved out of home and went to live with Gerard Dundon at 84 Hyde Road, Limerick, when she was sixteen years of age. That relationship lasted seven or eight years and they had three children together, Jimmy Collins, Gerard Collins, and Dessie Collins. Relevant to the events at issue are that her partner Gerard Dundon, her father Gerard Collins and her brother Garrett Collins received prison sentences in respect of violent disorder offences, a sentence of five years in the case of Gerard Dundon imposed on the 4th February, 2011 and sentences of seven years imposed in March 2011, in respect of Garrett Collins, Jimmy Collins and also one Christopher McCarthy. In October 2010, April Collins ended her relationship with Gerard Dundon. Tensions and difficulties followed, focused in particular on whether or how often she would bring her children to visit their father in prison. At this stage she continued to reside as she had done previously in Gerard Dundon’s house at 84 Hyde Road, Limerick. At trial Ms. April Collins’ evidence was that at about 8 pm or 9 pm on the 3rd April, 2011, that she was at home in her living room when she heard banging on the front door. She opened her living room door and saw someone at the front door of the house. Her evidence was that she could see that it was John Dundon, the appellant, and that he said “I know you are in there you tramp. I want to see my nephews. When I get you I am going to kill you”. At trial, counsel for the appellant sought a directed acquittal contending that this was a case which depended on visual identification by one witness and that there were many factors present which rendered the identification particularly unreliable. It was submitted that in those circumstances if a judge was sitting with a jury that he or she would have to withdraw the case from the jury as no jury properly charged could convict. The arguments that were advanced at trial in support of the application for a direction and in urging the Court to find Mr. John Dundon not guilty have been repeated before this Court in both oral and written submissions. Essentially the argument is that the Court should have granted the application for a direction and if the members of the Court came to consider the issue as triers of fact, that they should not have been satisfied of the correctness of the prosecution evidence beyond reasonable doubt.
4. The prosecution respond by saying that the appeal amounts to an invitation to this Court to revisit findings of fact and to reach conclusions different to those arrived at by the trial court and that this is something which this Court cannot do having regard to cases such as People (DPP) v. Madden [1977] 1 I.R. 336 and S.S. Gairloch [1899] 2 I.R. 1. There is also a ground of appeal relating to rulings by the trial court about the extent to which transcripts of telephone calls between Gerard Dundon, while in prison, and April Collins could be used for the purposes of a cross examination as to credit.
5. Before considering in greater detail the arguments addressed to the identification/recognition issue, it is appropriate to refer to the fact that at trial, the evidence of Ms. April Collins was that in the very early hours of the following morning, the 4th April, 2011, she was upstairs in bed, heard a sound, looked out and saw John Dundon standing at the top of a shed. There was another man in her back garden as well and she records John Dundon as saying “we are looking for a good place to bury your mother”. The Special Criminal Court in its judgment of the 16th March, 2012, stated that they found the evidence of April Collins regarding the events of the evening of the 3rd April, 2011, to be credible and convincing. They were satisfied that she identified the accused John Dundon on that occasion and they were satisfied beyond doubt of the truth of the allegation that he threatened her as alleged. The Court went on to say that they further accepted April Collins' evidence regarding the very early hours of the following morning. However, while they saw what was alleged to have been said on that occasion as amounting to sinister and threatening actions on the part of John Dundon, they believed that it would be unsafe to construe words to the effect of “we are looking for a place to bury your mother” as a direct threat to kill the mother of April Collins. At trial and again in this Court, it was submitted that so far as the alleged events of the evening of the 3rd April, 2011, were concerned that this was in essence a border line case where the incident lasted four to six seconds. Attention is drawn to what Ms. Collins had to say to the gardaí when she spoke of identifying a shape which she recognised as the appellant John Dundon, wearing a blue vest. It was pointed out that she was unable to describe whether the hair of the person at the door was long or short, unable to describe whether he had facial hair or was clean faced, was unable to describe his trousers, whether they were jeans or trainers. Particular emphasis was laid on the fact that notwithstanding that she had referred to the shape of the person at the door, that she had not commented on the fact that Mr. John Dundon, on the 3rd April, 2011, weighed 5 stone less than when she had last seen him. Notwithstanding the emphasis placed on this issue of weight loss, it should be noted that there was no evidence before the Court whatever about any change in weight by Mr. John Dundon and the only reference to this having taken place is to be found in a question asked by defence counsel. In addition to the classic points in an identification/recognition case about the quality of the opportunity for recognising or identifying and the possibility of error, the defence at trial made points about the reliability and credibility of April Collins as a witness. It was submitted that it was accepted that there was an animus between April Collins and John Dundon, that April Collins during cross examination admitted telling lies to gardaí on other occasions, that no complaint was brought to the gardaí until four days after the alleged incident, that whereas and while she claimed to be able to record what was said in great detail that she was someone whose memory in respect of other matters was such that she could not recall how many cars she had bought over a twelve month period. These, it may be noted are just some, not all, of the many criticisms made of Ms. April Collins on behalf of the first named appellant.
6. John Dundon submits that the nature of the ruling given in response to the direction application and then the judgment at the conclusion of the case is such that one cannot say whether the correct criteria was applied in deciding whether to stop the trial and in deciding that the prosecution had proved its case beyond reasonable doubt. It is said that the appellant is left wondering how much attention was paid to the nature of the cross examination that was conducted on his behalf. It is pointed out that there was no reference in the ruling of the Court to the timeframe, perhaps six seconds, no reference made to the restricted field of focus, the fact that the glass door was frosted and in part opaque, no reference as to the progress made in cross examination in relation to hair, facial features, type of trousers and so on.
7. In stressing that this was a matter for the court at trial, the prosecution draw attention to the fact that this was a case where the appellant was known to Ms. Collins for eight years. Attention is drawn to the fact that she said that she knew John Dundon’s voice.
8. So far as the arguments addressed to the identification issue are concerned, the Court accepts that the ruling on the direction application and the treatment of this issue in the judgment of the Court could fairly be described as terse. It does not, as it might have done, record that the court members had reminded themselves and warned themselves about the dangers of visual identification/recognition. Equally, the ruling does not address specifically the points made by the defence, either about the opportunity for identification/recognition such as the very short timeframe, frosted door glass and so on nor does it deal with the personal characteristics of Ms. April Collins as a witness. However, while it might be said that it would have been preferable if there had been a more specific and detailed treatment of these issues, this Court cannot close its eyes to the fact that experienced trial judges had heard all the points made, had seen April Collins cross examined at length over two days and were fully aware of the dangers involved in identification/recognition and the particular issues that arose in this case. Having heard the evidence, they were satisfied beyond reasonable doubt that the events described by Ms. Collins as having occurred on the evening of the 3rd April, 2011, had in fact occurred. This was a finding of fact that the trial court was entitled to make when it came to consider the issue as a fact finding tribunal, just as the conclusion that it had reached that the application for a direction should be refused was one that was open to the members of the Court to reach. Accordingly, the grounds of appeal related to identification/recognition fail.
The restriction on the use of telephone transcripts for the purpose of cross examination as to credit.
9. At one stage it appeared to be suggested that the Court had indicated that it was restricting the entitlement to cross examine as to credit. However, it is now accepted that there was no such restriction and that in general it was made clear to counsel for the appellant that he was of course free to cross examine as to credit and indeed he did so very extensively. The specific issue as to telephone transcripts arises in circumstances where Ms. April Collins’s former partner was a prisoner at all relevant times. As is the situation in the case of all prisoners, telephone calls to and from him were recorded by the prison authorities. Prior to the commencement of the trial, the appellant sought disclosure through an order of the Special Criminal Court, of transcripts and audio recordings of all conversations recorded by the Irish Prison Service between Gerard Dundon and April Collins. This request was made on the basis that the appellant was instructing his lawyers that this material would establish his contention that Ms. Collins had told his brother Gerard that she would “stitch up the appellant”. The request for all transcripts was refused, but the Special Criminal Court indicated that if the application was narrowed in scope, that it could be reformulated and could be entertained. The issue was revisited on the first day of trial and at that stage, the Court ruled that the tapes of identified conversations should be handed over to the appellant, expressly and solely for the purpose of establishing whether there was any material contained within the transcripts where the witness April Collins had told her former partner that she was going to stitch up his brother. When counsel for John Dundon was cross examining Ms. Collins, he requested that portions of the audio tapes be played. When the portion that was sought was played, it was immediately apparent to all that there was no reference in it to anything whatever about the stitching up of Mr. John Dundon. Indeed during the course of exchanges between counsel and members of the Court, it emerged that counsel had in mind to refer to the contents of the tapes when dealing with some six issues including whether she had in the past described her present boyfriend as a “creepy bastard who goes around raping people” and whether she had ever said that she disliked the gardaí. For this purpose, the Court does not find it necessary to address in any detail the circumstances in which the appellant John Dundon was given access to transcripts of conversations between April Collins and Gerard Dundon which had been recorded for the purposes of maintaining the security of the prison. Permitting access to the transcripts involved a ruling that was highly favourable to the defence. In facilitating access to the recordings, the Court was entirely justified in stipulating the purposes for which the transcripts could be utilised. Clearly, if the transcripts had revealed Ms. Collins saying that she was going to stitch up one of the accused, this would have been a matter of very considerable significance. However, simply because the Court permitted access, whether justifiably or otherwise, for one purpose, did not mean that the defence had an unfettered opportunity to utilise the transcripts for any purpose that they wished. The Court is in no doubt that the restrictions imposed on the use of the transcripts other than for the purpose for which they were provided was entirely justified and this ground of appeal must fail. Accordingly, the Court will dismiss the appeal of John Dundon.
10. The Court turns now to the appeal of Wayne Dundon and will deal first with the motion brought by this appellant seeking leave to argue additional grounds. The grounds sought to be added were that the conviction of Mr. Wayne Dundon was unsafe and unsatisfactory by reason of the prosecution's failure to seek out and furnish CCTV footage of 31 Hyde Avenue, in respect of the 30th September, 2010, secondly, that the conviction was unsafe because of the failure to furnish transcripts of telephone conversations between members of the Collins family and others and thirdly, a contention that April Collins received material benefits in relation to her evidence at trial which meant that her entire evidence was compromised.
11. In order to put the application in context, it is necessary to explain that the prosecution case was that on the afternoon of the 30th September, 2010, a dispute or altercation took place at 31 Hyde Avenue, the home of Ms. Alice Collins, during which a vehicle belonging to her which was parked outside was criminally damaged. The incident involved four young women (Ms. Ciara Killeen, Ms. Linda Killeen, Ms. Ciara Lynch and Ms. Kathleen O'Reilly) who had come to the premises and Ms. Alice Collins who it will be recalled is the mother of April Collins, Garrett Collins and Jimmy Collins. It seems that the events of that afternoon had their origin in a significant incident which occurred earlier that day in Limerick Prison involving Garrett Collins and his father Jimmy Collins, and Nathan Killeen who is the brother of Ciara Killeen. Arising from the events that occurred that afternoon at her home, Ms. Alice Collins went that evening to Roxborough garda station in order to process a complaint against the women involved. Her evidence was that having made the complaint that she returned home and began cleaning the house and washing the floor. It was her practice to leave the front door open when washing the floor and she did that on this occasion. Wayne Dundon walked in. She was asked what time that happened and responded “roughly 8.00, it could have been a bit after 8.00 I am not sure”. The question of the timing of any incident was a major source of controversy at trial, because the evidence was that at 8.00 pm that evening Ms. Alice Collins was still in Roxborough Road Garda Station making her complaint.
12. When Ms. Alice Collins was asked what happened, she responded that Mr. Wayne Dundon was in a very agitated state and had said “our John is not happy and John will hunt people down if his wife goes to jail”. One of the women involved in the afternoon incident was Ciara Killeen, wife of John Dundon.
13. According to Ms. Alice Collins, Mr. Wayne Dundon then continued “our John will hunt people down . . . I’m not happy either . . . your Jimmy, he goes to Hassetts [a public house in Limerick] every weekend . . . this is how it could be sorted now . . . our John now could give some fool 10 grand to shoot your Jimmy, kill your Jimmy”. According to Ms. Alice Collins she said “why are you picking on my Jimmy? It’s nothing to do with him. He has nothing to do with it. He is very quiet”. To which Mr. Wayne Dundon replied “our John won’t see it like that . . . it’s the quiet fellas that get it”. According to Ms. Alice Collins, Wayne Dundon went on to say “our John looks at Nathan Killeen like he is his brother and I’ve nothing but the greatest respect for Nathan Killeen myself”. Ms. Collins strongly dissented and then Wayne Dundon continued “well Garrett will stand in front of me and he will look at my face and this will be the last face he will see because I’m going to kill him myself”.
14. The evidence of Ms. Collins received support from evidence given by her daughter April and also by another daughter Bianca who was aged twelve and a half years at the time of the incident.
15. Again, to put the application to extend grounds in context it is necessary to have regard to the fact that Wayne Dundon along with Nathan Killeen stood trial in June and July 2014, before the Special Criminal Court, charged with the murder of Stephen Collins on the 9th April, 2009. During the disclosure process that took place for that trial, CCTV footage for dates in early 2009 covering 31 Hyde Avenue, was disclosed causing the defence to say that it is therefore clear that there was CCTV footage in existence in respect of the 30th September, 2010, covering 31 Hyde Avenue, but this material, which they say must exist, was never made available to the defence. The defence says that the significance of the CCTV footage is evident from the fact that when Wayne Dundon was arrested and interviewed in relation to the threat to kill matter on the 13th April, 2011, that he referred to the existence of CCTV footage and urged that it should be viewed. The prosecution response to this submission is to say and to repeat again and again in ever firmer tones that there was no footage in existence in respect of the 30th September, 2010.
16. The appellant also seeks to utilise certain material gleaned from prisoner phone transcripts which the Special Criminal Court had ordered should be disclosed as part of the discovery process in the murder trial. In particular, the defence is interested in two calls, one in particular made on the prison phone card of Christopher McCarthy. This call was made to Lisa Collins, then the girlfriend of Mr. McCarthy. Ms. Lisa Collins was not in at the time the call was made and thereafter the call proceeded as one between Jimmy Collins Snr. and his wife Alice Collins. The defence say that the call transcript is of enormous significance particularly because they say that it records Alice Collins saying that she was not threatened by Wayne Dundon. While that is the main interest of the defence in that particular call, it is not the only one and it is said that the call also has relevance to the issue of whether there was CCTV footage available at the time of the 30th September incident and whether Ms. Alice Collins kept a log recording events. This issue about log keeping is relevant to an issue that featured prominently at trial. Ms. Alice Collins stated in evidence that after the incident of the evening of the 30th September, that she then, on that evening made a note on the back of a Littlewoods envelope about what had occurred. The note refers to Friday, but the 30th September, 2010, was a Thursday and the defence made considerable use of this in their efforts to undermine the credibility of Alice Collins. Indeed, it was this memo as well as the fact that Ms. Collins was timing the incident as having occurred around 8.00 pm when there was garda evidence which placed her at Roxborough Road garda station between 7.30 pm and 9.07 pm which formed the mainstay of the defence challenge to the evidence of Ms. Alice Collins. The second call is not suggested as having the same significance but it is nonetheless of interest. It too is on the phone card of Christopher McCarthy, but once more it involved a conversation between Jimmy Collins Snr. and Alice Collins. The defence interest is that in the course of the conversation, Ms. Alice Collins said that she was going to say to him [Wayne Dundon] that she wanted her car fixed. It is said that the defence could have made use of this statement to undermine the evidence of Bianca Collins who had said that at an early stage of the incident on the 30th September, 2010, Wayne Dundon had said that he would get Alice Collins a new car.
17. The third proposed new ground of appeal is couched in terms of the fact that the applicants convictions are unsafe and unsatisfactory by reason of the trial court accepting and acting upon the evidence of April Collins, where, in contrast, the said witnesses evidence was not relied upon by the Special Criminal Court in the appellant’s murder trial thus, rendering the trial in this matter unsafe and unsatisfactory.
18. As this Court pointed out when ruling on the matter, the reference to the fact that the evidence was not relied upon by the Special Criminal Court is to give less than a completely clear picture of what occurred. The Special Criminal Court in the murder trial took the view that the prosecution case was not advanced by the evidence that Ms. April Collins had to give but did not reject her evidence. In any event, while this proposed ground of appeal was couched in fairly broad terms, in reality the issue that was sought to be argued was a somewhat narrower one. It related to the fact that Ms. April Collins appeared in the District Court on a number of occasions in respect of road traffic matters at a time when she was subject to a three year suspended sentence that had been imposed by the Circuit Court on the 19th May, 2011. However, the procedure provided for by s. 99 of the Criminal Justice Act 2006, as amended was not invoked. Moreover the fact that Ms. April Collins was subject to a suspended sentence was not drawn to the attention of the judge in the District Court.
19. While the issue of extending the grounds of appeal was being debated, counsel for the Director of Public Prosecutions submitted that the cart was being put before the horse by the second named appellant and that before the Court could consider the question of allowing the new grounds to be argued that there would have to be an application to adduce new evidence. The Court saw substance in that objection but permitted the appellant to bring a motion returnable for the second day of the appeal hearing seeking to admit the new evidence. The Court would comment that all three proposed new grounds, but most particularly ground 3 relating to the view formed of Ms. April Collins by the Special Criminal Court which dealt with the murder trial, operate on the basis that it is open to an appellant to dip in and out of the transcripts of a trial held on another occasion at will. The Court deprecates any such suggestion and the Court would repeat what it had to say in that regard in the case of DPP v Brian Meehan [2016] IWCA 124. Dealing with the three proposed new grounds and the evidence required to allow the grounds be argued, the position is that insofar as ground 1 relating to the alleged existence of CCTV footage is concerned, the Court is of the view that this ground is without substance. There is no evidence whatever that there were CCTV cameras functioning which covered 31 Hyde Avenue on the 30th April, 2010. The Court accepts what is being repeatedly said in that regard by the prosecution. In that context, the Court would point out that the garda interest on the 30th September, 2010, focused initially on the acts of violent disorder/criminal damage. In the nature of things, such incidents are often confused and fast moving and gardaí could be expected to be keenly interested in footage recording such an incident. Had there been footage available there is every likelihood that the gardaí would have taken possession of it at that stage. It would also be noted that a statement of complaint against the appellant Wayne Dundon in respect of the events that occurred on the evening of the 30th September, 2010, was made only several months later on the 8th April, 2011 and this must impact on the capacity to harvest footage.
20. In relation to the proposed ground relating to how road traffic offences were dealt with in the District Court, the Court will confine itself to repeating what it said during the course of its ruling of the 5th April, 2016:
“So far as the situation relating to the suggestion that Ms. Collins, Ms. April Collins obtained the benefit, the Court feels that this is lacking in reality. Implicit in the arguments that are being advanced is the suggestion that Ms. Collins would have had in mind offences that had not then been committed, that might or might not be committed in the future, that might or might not be detected in the future, that might or might not be prosecuted in the future and the Court really feels that is to stretch matters to and well beyond breaking point.”
21. So far as the telephone evidence is concerned, there is no doubt that the manner in which the issue has emerged is unusual. The case is presented by the defence as one of non disclosure but with all respect to them that is wholly lacking in reality. The conversations of interest to the defence took place in the course of calls made on the prison phone card of Christopher McCarthy. Is it seriously to be suggested that the prosecution would have been entitled to access phone conversations made by prisoners with nothing to do with the forthcoming threat to kill case? For the same reason, the Court does not accept as valid the argument made by the prosecution that this was evidence that could have been sourced by the defence with reasonable diligence. While the defence might have contemplated that the difficulties the family were experiencing with the Dundons and with Wayne Dundon in particular, would have been discussed between husband and wife, it is really asking too much to say that they should have contemplated that a call made by a prisoner to his girlfriend would then be handed over and would proceed as a conversation between Jimmy Collins and Alice Collins.
22. The Court has already referred to the fact that the prosecution and defence have diametrically different views about the significance of the phone calls in question. Faced with that situation the defence argue that if two views are open and if there are two interpretations of the calls, either of which might be accepted by a tribunal of fact and one of which would assist the defence that the evidence should be admitted and should result in a re-trial so that the new material can be considered afresh. In the Court’s view that is to overstate matters. Had the material been available then it is likely that it would have been deployed in pursuit of some or all of the issues identified. However, for the Court to admit the new evidence with the consequences that would follow, the defence would have to go further and show that this is a point of real substance rather than simply establishing that it is a point in respect of which they would address arguments which would inevitably be answered by the other side.
23. The extract from the telephone conversation of particular interest to the defence is as follows:
“Jimmy: At the end of the day look, I don’t care about them fucking women but you know they are only after him. Know what I mean Alice?
Alice: Yeah.
Jimmy: Do you know I am not defending him now or anything like that.
Alice: No and I said at the end of the day, I said he didn’t threaten me at all directly. He didn’t threaten me but I said they did come up and do that over some fight in the prison. I said come up and picked on me. I said if Garrett and Nathan Killeen were fighting in the prison and if Garrett came out the worse of it, I wouldn’t dream in a million years of going down to his mother. I wouldn’t go near the woman because it wouldn’t have been her fault they were fighting in the prison, and I wouldn’t concern myself with it because they were two fellas up there, I said I wouldn’t go up and attack that woman. I shouldn’t be attacked.”
24. While it is understandable that the defence would focus in on the reference to “he didn’t threaten me at all directly. He didn’t threaten me”, the full extract actually shows Ms. Alice Collins discussing an incident involving Wayne Dundon which occurred at her home with her husband. However, the significance of the matter that is highlighted is greatly reduced, if not extinguished, when one looks at the counts on the indictment which of course anticipated the evidence of Ms. Alice Collins. Wayne Dundon was charged on count 3 that he without lawful excuse issued a threat to Alice Collins that he would kill or cause serious harm to Garrett Collins intending her to believe that it would be carried out and on count 4 was charged with issuing a threat to Alice Collins that he would kill or cause serious harm to Jimmy Collins. Now, it is true that Ms. Alice Collins narrative records that as Wayne Dundon got up to leave that he turned around and looked back, paused for a moment and said “you’re digging your own grave. Look it’s very easy to make people disappear”. While the remark, if made, was obviously an unpleasant one and one that could be interpreted as a threat, the gravamen of the incident after the sentence had been made as reported by Ms. Alice Collins which gave rise to the prosecution and the formulation of the indictment was that Wayne Dundon made threats to her that he would kill two of her sons. In those circumstances, the observations about not being threatened directly and not threatened make a great deal of sense. In a situation where the defence case was that no incident of the sort described had ever happened there is substance in the point that the telephone conversation in fact offers comfort to the prosecution. Overall, the Court is of the view that the threshold for the admission of new evidence derived from the telephone transcripts has not been met and so the Court refused leave to adduce the additional evidence and argue the additional grounds.
25. So far as the substantive appeal by Wayne Dundon is concerned, it is based on a contention that the main prosecution witnesses in the case, Ms. Alice Collins and Ms. Bianca Collins and also Ms. April Collins, in relation to counts 9 and 10 were unreliable to the extent that the Court should have directed an acquittal. Understandably in that situation the prosecution again categorises this as an invitation to this Court to form a different view on the facts than the trial court did and submits that this is impermissible having regard to decisions such as People (DPP) v. Madden. The Court would simply observe that it has on a number of occasions recently reiterated the continuing importance of that line of jurisprudence. (See by way of example People (DPP) v. Campion [2015] IECA 190).
26. The appellant argues that there should have been a directed acquittal and if there was not one and the Court came to consider the evidence of the principle prosecution witnesses that their evidence was so inherently flawed as to be incapable of supporting convictions and ought to have resulted in findings of not guilty. So far as Alice Collins is concerned there were issues in relation to her evidence such as the time of the visit by Wayne Dundon, the back of the envelope memo with its reference to Friday and the fact that there was a delay in reporting the incident. However, in relation to the point about there being a delay in making a complaint it must be said that Ms. Alice Collins provided cogent explanations for the delay in terms of her hope that matters would settle and the fact that anyone would be frightened about submitting a complaint about Wayne Dundon.
27. So far as Bianca Collins is concerned, in the course of the direction application counsel invited the Court to disregard her evidence on the basis that she made a statement over six months afterwards and that she is a minor and had accepted that she had discussed the matter with her mother and sister in the meantime. The defence was free to make that submission if they wanted, but the fact that a witness is young is no basis per se for excluding evidence. The trial court that heard the evidence given by Bianca Collins specifically stated that it was impressed by that evidence. So far as April Collins is concerned, the Court relied on her evidence in part in relation to counts 9 and 10 on the indictment, but the defence submits that this was an improper exercise by the Court given that it had not convicted on counts 5, 6 and 7 despite the evidence given in relation to those counts by April Collins. The submission about the fact that a different approach was taken in respect of counts 5, 6 and 7 which dealt with matters alleged to have occurred on the 25th March, 2011, does not take sufficient account of the fact that the Court specifically stated that it found the evidence of April Collins in regard to that day to be credible.
28. In the view of the Court, this was classically a case where the judges in the trial court, who had seen Ms. April Collins give her evidence and seen her being cross examined robustly and at length, were in the best position to evaluate her evidence.
29. The Court is forced to conclude that there is substance in the contention that what is being asked is that the Court would substitute a view on the facts for the view formed by the trial judges who had heard the evidence at the direction application stage and again at the end of the case. The Court is not prepared to do that. In the view of the Court, there was evidence which if accepted by the Special Criminal Court could support a conviction of Wayne Dundon. It was for the court of trial, the Special Criminal Court, to decide whether it was satisfied in relation to that evidence and in a situation where the Court was so satisfied, this Court is not in a position to intervene. Accordingly, the appeal of Wayne Dundon also fails. The Court will therefore dismiss these appeals and will affirm the convictions.
