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Judgment | Title: | Director of Public Prosecutions v Murphy | | Neutral Citation: | [2019] IECA 63 | | Court of Appeal Record Number: | 90/2016 | | Date of Delivery: | 01/03/2019 | | Court: | Court of Appeal | | Composition of Court: | Birmingham P., McCarthy J., Kennedy J. | | Judgment by: | Kennedy J. | | Status: | Approved | | Result: | Dismiss | | | |
THE COURT OF APPEAL [90/2016] The President McCarthy J. Kennedy J.
BETWEEN/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT - AND -
JOHN CORNELIUS MURPHY
APPELLANT JUDGMENT of the Court delivered on the 1st day of March 2019 by Kennedy J.
1. On the 3rd March 2016, following a trial which had lasted two days, the appellant was convicted of four counts of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. Subsequently, he was sentenced to a term of three years' imprisonment, which sentence was suspended on terms. He now appeals his conviction.
2. The four counts of theft occurred on diverse dates in June and July 2010. The prosecution's case was that the appellant drew four cheques in the aggregate amount of €18,643 from the account of a charity, namely; Children To Lapland Appeal Limited, and then lodged each of the four amounts to his own personal account.
3. The appellant was a director of the above-mentioned company, which charity organised trips for terminally ill and sick children to visit Santa in Lapland. The prosecution alleged that in 2010 four cheques from the charity were written and signed by the appellant and that he then lodged these cheques to his own personal bank account. The appellant also operated a travel company, Manor Castle Limited trading as United Travel, and the defence put forward by the appellant was that Manor Castle Limited, The Children To Lapland Appeal Trust and the appellant each funded the other and indeed on occasion subsidised the other and that as the appellant was involved in both companies; he had not acted dishonestly in lodging the cheques to his personal bank account.
4. Following the opening speech by prosecution counsel, counsel for the appellant made certain concessions regarding the documentary proofs in the trial, specifically: - (1) that each cheque was a true copy and was signed by the appellant;
(2) that the copy bank statement in each instance was a true copy of The Children To Lapland Appeal bank statement;
(3) that the lodgement dockets in each instance related to the relevant cheque; and
(4) that the copy bank statement was a true copy of the appellant's personal bank account showing the relevant lodgement in each instance. 5. The admissions were made by the defence pursuant to s. 22 of the Criminal Justice Act 1984.
6. Whilst 5 grounds of appeal were filed, in truth, the substance of the appeal, as fairly and properly agreed by counsel for the appellant, Mr Reynolds BL, concerned grounds 1 and 4. The issue for this Court was whether the trial judge had failed to direct the jury properly or at all on the defence.
Grounds
7. Five grounds of appeal are advanced and it is accepted that grounds 1 and 4 advance a similar argument. They are as follows: (i) Ground 1:
The learned trial judge erred in fact and in law in directing the jury that there was no basis in the evidence for the defence for honest appropriation to be invoked;
(ii) Ground 4:
The learned trial judge erred in fact and in law in directing the jury that in effect, there was no defence, and that this amounted to an impermissible direction to convict;
(iii) Ground 2:
The learned trial judge erred in fact and in law in finding against the defence and refusing to requisition the jury on the issue of "dishonest appropriation";
(iv) Ground 3:
The learned trial judge erred in fact and in law in refusing to requisition the jury on the application of the defence, supported by the prosecution on the issue of the origin of certain items of evidence relied upon by the defence;
(v) Ground 5:
The learned trial judge erred in fact and in law in refusing the defence application for a direction at the close of the prosecution case.
Grounds 1 and 4 8. Detective Garda Davoren gave evidence, inter alia , that in September 2011 he received the aforementioned documents from the AIB Bank, Morehampton Road, Dublin 4 relating to the bank account in the name of The Children To Lapland Appeal Charity Account ending in the digits 006. He said that the documents showed four debits from The Children To Lapland Appeal Limited charity account specifically €6,998, €6,500, €4,000 and €1,145. In April 2012, the witness received documents from the AIB bank in Stillorgan relevant to the appellant's personal bank account which he held in that branch, which account showed credits in the respective amounts. Prior to obtaining the documents in each instance the witness obtained an order pursuant to s. 52 of the 2001 Act on foot of sworn information, thus enabling him to obtain documents from the bank. The combined value of the four transactions was €18,643.
9. The jury received the certificate of incorporation of The Children To Lapland Appeal Limited and a certified copy of Form B.10 confirming that the appellant and two other persons were directors of the charities since 2002 and also a certified copy confirming that the charity was placed into liquidation in March 2012. On behalf of the appellant, Mr Reynolds BL relied on aspects of cross examination where the witness agreed that the appellant's personal bank account was used to defray wages and expenses on behalf of a company known as Manor Castle Limited. Manor Castle Limited was the appellant's travel business and had a trading name of United Travel. It is necessary to quote the extracts from the transcript relied upon by the defence which were put forward as the ‘high water mark' of the evidence on this issue: - "Q…You are aware that that bank account was used to pay wages and expenses on behalf of Manor Castle, aren't you?
A. I presume it would have been, yes.
Q. No, no no, no. You're giving evidence now as to what you know and the results of your investigation. I am putting it to you that you know that it was used to defray wages and expenses; isn't that correct?
A. Yes, I would have known. Yes, I suppose I would have known, Judge, yes, from time to time he may have paid staff, yes.
Q. No, he did.
A. Okay."
Detective Garda Davoren was recalled to give evidence of the appellant's interviews and in cross examination the following exchange took place: -
"Q. And in that…now, this is…this is the bank account that you referred to yesterday as being personal, non-business, non-commercial, but we corrected that, didn't we, because it is a business account or was used for business transactions?
A. He does use it from time to time…
Q. Yes?
A. …for paying employees of the Manor Castle.
Q. And this is the account that those famous four cheques were lodged to; isn't that correct?
A. That's correct, yes." 10. The charity's bookkeeper, Mr. Joseph Reid, gave evidence that he regularly signed blank cheques from the charity and that the appellant co-signed the cheques, the purpose being to pay the expenses of the charity as they became due. The bookkeeper for Manor Castle Limited trading as United Travel, Mr Victor Matoud, gave evidence that he never lodged cheques on behalf of the travel company into the personal account held by the appellant.
11. In considering grounds (i) and (iv) of the grounds of appeal, it is important to consider the content of the interviews conducted by the Gardaí with the accused. The following is an extract from the interview conducted at Dun Laoghaire Garda Station on the 24th April 2013:- "Question: I'm now showing you exhibit DB 11, a cheque for €1,145 made out to pay you from the Children to Lapland Appeal. Is that your signature?
Answer: Yes, that's my signature and that's my writing.
Question: What's it for?
Answer: I've no idea.
Question: Either does Joe Reid, the other director. We want a better explanation than that?
Answer: If I had the cheque book I'd know.
Question: How do you live day to day?
Answer: I live with my sister. I'm on sick benefit. I am on €186 per week. My sister pays the bills for me.
Question: Joe Reid tells me you have no reason or permission to take the money from the charity?
Answer: Why did Joe sign it then?
Question: Would you make much money out of the charity?
Answer: I don't make any money from the charity.
Question: How would the charity owe you money?
Answer: It could be for anything that might have happened. I might have asked to help out the charity if we didn't make what was expected.
Question: I'm now showing you exhibit DB 10, lodgement 20, the money from this cheque going into your bank account?
Answer: Okay.
Question: On 4/6/2010, there was a lodgement of nearly €7,000 into your own account from the charity in the form of a cheque signed by you and Joe Reid on the same date. I'm now showing you this cheque to you, exhibit DP 22, page 11. Do you remember this?
Answer: I could have been in Thailand. I think Gabrielle could have lodged it I think.
Question: Do you need access to money in Thailand at the time?
Answer: No.
Question: I'm now showing you page 15, exhibit DB 22, lodgement of €4,000. Do you remember this? I'm also showing you the cheque dated 9/7/2010. Is that your signature?
Answer: Yes.
Question: Do you remember what this is for?
Answer: No, I'm sorry, I can't tell you.
Question: Did I show you the cheque, the €6,500 (Garda Davoren then shows Con Murphy exhibit DB 22, page 12 and page 13).
Con confirms it is his signature on page 14).
And then answer to that question: "That's my signature.""
The Legislative Provisions 12. The offence of theft is defined pursuant to s. 4(1) of the 2001 Act as dishonestly appropriating property without the consent of the owner and with the intention of depriving the owner of the property. The term "dishonesty" is defined in s. 2(1) of the Act as meaning: "without a claim of right made in good faith". The relevant portions of the section provide: - "S.4(1) - Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
S.4(2) - For the purposes of this section a person does not appropriate property without the consent of its owner if-
(a) the person believes that he or she has the owner's consent, or would have the owner's consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or
[-]
S.4(4) - If at the trial of a person for theft the court or jury, as the case may be, has to consider whether the person believed -
(a) that he or she had not acted dishonestly, or
(b) that the owner of the property concerned had consented or would have consented to its appropriation, or
(c) that the owner could not be discovered by taking reasonable steps, the presence or absence of reasonable grounds for such a belief is a matter to which the court of jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.
S.4(5) - In this section -
"appropriates", in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;
"depriving" means temporarily or permanently depriving."
The Issue 13. The appellant accepted at trial that he had lodged the four cheques to his personal account but contended that he held the genuine belief that he was entitled to do so and had not therefore, acted dishonestly. The complaint on appeal was that the trial judge had, in his charge to the jury, deprived the jury of the opportunity of considering the defence as he informed them that there was simply no evidence from which they could conclude that he held such a belief.
The Judge's Charge
14. As this appeal, for all intents and purposes, turns on the trial judge's charge, we now set out the relevant extracts therefrom.
15. Having advised the jury that there was no obligation on an accused to give evidence, he went on to say: - "In any event, the accused hasn't remained silent on the process. He has gone on three occasions to the garda station, twice to Dun Laoghaire, once to Kill o'the Grange and he answered questions there, was interviewed and questioned about the detail and you have his answers in the first interview, in general terms about his involvement with the charity, in the second interview in respect of the exact four payments that were involved and then the third interview he says he has come back to Kill o'the Grange to get cheque numbers so that he can deal with the payments and deals with the €4,000 payment that has been highlighted by Mr Reynolds in the bank statements that were introduced by him through Mr Mullaney for the accused. So, you have those statements, ladies and gentlemen. They are the accused's account as best he gives on the occasion. It has been pointed out to you that they are given to the Gardaí and presented here in evidence at a time when Mr Murphy didn't have available to him the books and records because the company was now in liquidation, the charity was folded or whatever and he didn't have to hand the books and records for the purposes of reliance upon them, but they're there and you will read his statements, have regard to them in the same way as you do any other piece of evidence. They form part of the case as assembled by the prosecution and presented to you. It's for you to attach what weight you will to them. You deal with it as you do, as I say, every piece of evidence." 16. Having charged the jury as to the elements of the offence of theft, the trial judge went on to say in putting the defence case as follows: "As I understand Mr Reynolds's case and argument that he is putting to you that you can have regard to this provision of the law when you come to understand Mr Murphy's position, that the person believes that he or she has the owner's consent or would have the owner's consent if the owner knew of the appropriation. Now, it's impossible for a company to know it's minor express its mind and you're being invited by Mr Reynolds to look at the facts and the evidence and draw the possibility and if there is a possibility that Mr Murphy believed that he was entitled to take this money, then he has not committed theft.
The difficulty for you as a jury is you have no evidence whatever to support that belief, if it is there at all and if one looks at the interview of the accused which is there and if one looks at the evidence which is there, there's, to my mind, but you are the judges of the facts, no evidence to support a proposition of a belief. What has been talked about is that there is a relationship of sorts, that Mr Murphy or more importantly that Manor Castle Limited, trading as United Travel, has been supporting Children to Lapland Appeal Limited over the years and it may well be…you see the reference to the €4,000, the €200 by 20 paid in in two sums of €2,000 each, €2,000 each and Mr Murphy tells you in the third interview that his…or he was a little bit unsure about it at the beginning: "As far as I know it was a bill for one of the printers of Lapland appeal - Children to Lapland Appeal Limited.
Those monies, you'll see, come out of the personal account, as it's described, of Mr Murphy and it is paid into Children of Lapland account on the documents he's produced to Mr Mullaney to you and that is there. That is evidence thereof, if you like, the relationship that has been spoken of and it has been put to witnesses that Manor Castle Limited has been funding or subsidising and you have been shown the accounts, but that's a debt of Manor Castle, owed to Manor Castle Limited. It's not owed to Mr Murphy. They're separate legal entities. Mr Murphy is a director of Manor Castle Limited, but he is not Manor Castle Limited, it's a separate legal entity and the accounts that have been produced to you, if they show debts owing it's to Manor Castle Limited and does not at law justify or throws into question for you as a jury the honest belief…the honesty of the belief or otherwise of Mr Murphy to take monies from Children of Lapland Appeal Limited and put it into his personal account and it is important to emphasise that to you, ladies and gentlemen, in assessing the evidence……" He continued: - "Nonetheless, the Act says a person believes that he or she has the owner's consent or would have the owner's consent if the owner knew. Now, you read through Mr Murphy's statement of interviews and I don't see anywhere there an assertion by him that he was taking these monies because he believed he was entitled to them or that he believed he was owed them or whatever. It's for you to read that. I don't see it there, but maybe you can and the making of a legal argument or the putting of a proposition by counsel to a witness on behalf of a client is not evidence. So, the… it is fair and proper for Mr Reynolds to pursue these issues with the witnesses, to probe them, but the asking of the question isn't evidence, the putting of a proposition, the making of a speech to you is not evidence and that's why I say that there does not appear to me to be in this case evidence to support the proposition that Mr Murphy believed or could have believed he was entitled to these monies. I may be wrong, that's my view of the evidence, as I see it. It is for you to assess that and to have regard to it, because those are the definitional bases upon which the theft the law of theft exists." In the closing stages of his charge, the judge says as follows: - "For the defence, Mr Reynolds relies, on my assessment of it, this provision within the Theft Act that the accused man believed that he had the owner's consent, in other words he was entitled to take the money for the reasons that have been suggested. It's for you to assess that….
You have to ask yourself have you been satisfied beyond reasonable doubt that Mr Murphy has taken this money in the dishonest way that has been contended for by the prosecution. If you are satisfied with no reasonable doubt in your mind, well then you must convict, your duty is to convict. If you're left short of that, if there is any reasonable doubt in your mind as to the position of Mr Murphy vis-à-vis these monies, if there is any possibility that he was entitled to or believed he was entitled to take those monies, well then you must acquit him, it is for you."
Discussion 17. There was no issue at trial, but that the certain elements of the offence were made out by the prosecution and indeed conceded by the defence. The defence concerned the mens rea and in this regard, it was contended that there was evidence before the jury that the appellant held an honest belief that he was entitled to appropriate the property and that the trial judge did not leave this for the jury to consider. This belief, Mr Reynolds asserted, stemmed from the interconnection between the companies and the appellant.
18. Mr Reynolds, naturally, does not take issue with the legal principle of separate corporate personality, but submits that the trial judge, by his comments and directions to the jury, removed from them the opportunity to even consider whether the appellant held an honest and genuine belief that he had an entitlement to the property. In essence, that the jury were not given the opportunity to consider if the defendant had established that he held an honest belief that he was entitled to appropriate the property in question.
19. There is an evidential burden on the defence to raise reasonable grounds for his belief that he was entitled to appropriate the property in question. This does not mean, of course, that a defendant must give evidence, or indeed call evidence on his behalf, it simply means that there must be some evidence in the case, of the defence. The prosecution must negative any purported belief that a defendant acted honestly or with a claim of right made in good faith beyond reasonable doubt. Section 4(4) of the Act provides that a jury shall have regard to the presence or absence of reasonable grounds, in conjunction with any other relevant matters, in considering whether the person so believed. Therefore, a jury must consider all the relevant circumstances when assessing the issue of dishonesty. The defence contend that the trial judge directed the jury, in terms, that there was no evidence of honest belief on the part of the appellant and therefore deprived him of this defence, in circumstances where there was in fact such evidence. Mr Reynolds pointed this Court to the excerpts from the transcripts already referred to in this judgment.
R v Ghosh
20. The meaning of the term dishonesty was determined in R v Ghosh [1982] EWCA Crim 2 to involve a two-part test. That is, that a jury must be directed to decide firstly: - "…. whether according to ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails." Only if the conduct was dishonest by those standards, was it necessary for the jury to consider the second issue, namely; "…. whether the defendant himself must have realised that what he was doing was [by the standards of reasonable and honest people] dishonest." 21. It is urged in written submissions on behalf of the appellant that we apply the two-fold test as in Ghosh . This ignores the fact that ‘dishonesty' is defined by statute in this jurisdiction. Furthermore, s.4(4) specifically provides for circumstances of ‘honest belief'. The Theft Act 1968 defines dishonesty as "a state of mind" and so, as was stated by this Court in DPP v. Bowe and Casey [2017] IECA 250 at para 162:- "The Ghosh approach therefore appears to be predicated on the idea that dishonesty, at least for the purposes of the Theft Act 1968, is a state of mind, rather than a value judgment with respect to conduct." Dishonesty has a statutory meaning under the 2001 Act and so can be contrasted with the English position. Section 4(1) includes the term ‘dishonestly' in the definition of the offence of theft and so, must be a constituent element of the offence. Therefore, the prosecution must prove that element of the offence. If the defence can point to evidence of an honest belief that he/she was entitled to the property in question, then the prosecution must negative that belief beyond reasonable doubt.
Conclusion - Grounds 1 and 4
22. Mr Reynolds pointed this Court to the evidence which he contends gives rise to the defence of honest belief. It is not unfair to say that this evidence is very thin indeed. Simply put, the evidence goes no further than an agreement by Detective Garda Davoren that the appellant's personal bank account was used on occasion to pay wages and expenses of Manor Castle, t/a United Travel. Was this evidence from which the jury could conclude that the appellant believed he was entitled to appropriate the funds from the charity? We think not. Further, when we examine the interviews with the appellant, there is no reference contained in those interviews to a belief on the part of the appellant that he was entitled to the funds of the charity. Therefore, as there was no evidence sufficient to put in issue the question of honest belief, there was no basis upon which to leave this issue for the jury's consideration.
23. However, even if we are incorrect on that assessment, the trial judge in his charge told the jury, that while he did not think the evidence of honest belief was in the case, he repeatedly advised them that it was for them, as the triers of fact, to assess. It is important to observe, that in the concluding portions of his charge, the trial judge leaves the jury with the advice that this issue is for their assessment. These grounds therefore fail.
24. The decision in R v. Ghosh is not apposite to the issue under consideration. The 2001 Act provides a statutory definition of ‘dishonesty' and permits the defence of ‘honest belief'. Dishonesty is a constituent element of the offence, if there is evidence of ‘honest belief', then that is something which the jury must consider in assessing whether a defendant was dishonest in terms of the section. Proof of all constituent elements of the offence rests with the prosecution which of course includes that the prosecution must negative the defence of honest belief, if such is raised on the evidence.
Ground 2
25. It is clear from the evidence adduced by the prosecution from the bookkeeper who worked for the charity and the bookkeeper who worked for the travel company that neither had lodged cheques to the personal account of the appellant either from the charity or from the travel company. This was undisputed. Counsel for the appellant in making the requisition accepted that the trial judge was correct to advise the jury that suggestions put by counsel to witnesses are not evidence and that the evidence is, in effect, in the answer. However, he continued in his requisition in relying upon the decision in R v. Ghosh , that there was a basis whereby the appellant could have believed that he was entitled to write the cheques. It is submitted on behalf of the appellant that the bank account of Manor Castle Limited and the appellant's personal bank account were interchangeable, further that the charity owed significant sums to the travel company and that consequently the appellant could hold the belief that he was entitled to repay a portion of those monies to the trading entity or indeed to himself. It is further submitted that the test for dishonesty is subjective and that on the facts the appellant may have had the honest belief that he was entitled to the funds. In response, the respondent refers to the evidence of the bookkeepers for the charity and for the travel company wherein both witnesses indicated that they never lodged cheques into the personal accounts of Mr. Murphy.
26. The trial judge refused to direct the jury and stated, inter alia , as follows: - "I honestly do not see a basis upon which the jury can fairly assess the issue of the possibility or otherwise of a belief on the part of the accused that he was entitled to take this money. Manor Castle Limited may be owed money by the charity but there was no basis for Mr. Murphy to say he was owed money. There was no basis for Mr. Murphy to pay the cheque to himself, sign it to himself and put it into his personal account and any construction of the Act does not accommodate--or of the evidence…accommodate a basis upon which it can be argued that the belief defence under sub paragraph 2 is supported by the evidence and there must be evidence there for a jury to be able to exercise and put it - I am satisfied that I have dealt with the matter correctly."
Conclusion - Ground 2 27. We are satisfied that the trial judge was correct in refusing to recharge the jury. He had already addressed the issue in his charge and the matter remained with the jury for their assessment. Indeed, to have recharged the jury may not have been to the advantage of the defence, as it may have highlighted the dearth of evidence relating to the defence of honest belief.Therefore, this ground fails.
Ground 3
28. This ground relates to the trial judge's comments on the manner in which evidence was adduced at trial. It concerns the cheque for €4,000 where in his charge the trial judge referred to the defence adducing the evidence in the course of the testimony of Mr. Mullaney who was called for the appellant. However, it transpired that the bank statements were part of the disclosure received from the State. The trial judge refused to revisit the matter. Mr Reynolds raised a requisition in the belief that the judge had told the jury that the bank statements concerning the €4,000 were generated by the defence, that the defence ‘got them from Mr Mullaney'.
29. The jury received in evidence by way of an exhibit a copy of the appellant's personal bank statement and transactions from November 2010 disclosing that the appellant had paid the sum of €4,000 to the account of the charity.
30. There are two references to Mr Mullaney on this issue in the charge as follows: - "In any event, the accused hasn't remained silent on the process…. and then the third interview he says he has come back to Kill o'the Grange to get cheque numbers so that he can deal with the payments and deals with the €4,000 payment that has been highlighted by Mr Reynolds in the bank statements that were introduced by him through Mr Mullaney for the accused…. they are the accused's account as best he gives on the occasion. It has been pointed out to you that they are given to the Gardaí and presented here in evidence at a time when Mr Murphy didn't have available to him the books and records because the company was now in liquidation, the charity was folded or whatever and he didn't have to hand the books and records for the purposes of reliance upon them, but they're there and you will read his statements, have regards to them in the same way as you do any other piece of evidence." In the second reference, the judge says: - "Those monies, you'll see come out of the personal account, as its described, of Mr Murphy and it is paid into Children to Lapland account on the documents he's produced to Mr Mullaney to you and that is there."
Conclusion - Ground 3 31. Mr Reynolds properly accepts that this is not the focus of the appeal. From the transcript, it can be seen that the judge did not refer to Mr Murphy generating the documents but to producing the documents to Mr Mullaney. In fact, the judge went on to say that at the time Mr Murphy was interviewed by the Gardaí, he did not have books and records upon which to rely. Whilst it is always best practice to correct any factual error, we are not satisfied, that the judge did in fact err in his charge on this aspect of the evidence and so this ground fails.
Ground 5
32. At the conclusion of the prosecution's case, counsel on behalf of the appellant applied to the trial judge to direct the jury to return verdicts of ‘not guilty' on the basis that the appellant had transferred in November 2010 the sum of €4,000 from his personal bank account into the account of the charity. This transfer post-dated the four cheques which are the subject matter of the counts in the indictment.
33. The trial judge refused the application and stated that it was a matter for the jury. It is submitted on behalf of the appellant that the payments of €4,000 from the appellant's bank account to the charity bank account may well have related to one or other of the counts on the indictment, that this was a possibility raised by the appellant on the evidence and therefore cast a doubt on the remaining counts in the indictment. In reply, the respondent submits that the suggestion that the €4,000 related to one or all of the counts on the indictment ignores the evidence of the prosecution that the appellant was not entitled to hold the funds from the charity for any period of time and relies specifically on s. 4(5) of the Criminal Justice (Theft and Fraud) Act, 2001 wherein it states: - " "depriving" means temporarily or permanently depriving." 34. This Court has stated in a number of decisions including in The People (DPP) v. J.R.M. [2015] IECA 65, (Unreported, Court of Appeal, 27th March 2015) and in The People at The Suit of The Director of Public Prosecutions v. M.R. [2009] IECCA 87 that the withdrawal of the case from the jury must be an exceptional measure and in doing so has quoted from Archbold, Criminal Pleading, Evidence and Practice , 2014, at p. 484, where the author states: - "In making the judgment in line with the second limb of Galbraith , as to whether the state of the evidence called by the prosecution, taking as a whole, is so unsatisfactory, contradictory or so transparently unreliable, that no jury, properly directed, could convict, the judge must bear in mind the constitution primacy of the jury and not usurp its function."
Conclusion - Ground 5 35. We are satisfied that this issue was an issue four-square within the province of the jury. We find no error in the trial judge's decision to refuse the application and so this ground also fails.
36. The appeal is dismissed
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