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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Albie Lonergan [2009] IECCA 52 (08 May 2009) URL: http://www.bailii.org/ie/cases/IECCA/2009/C52.html Cite as: [2009] 4 IR 175, [2009] IECCA 52 |
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Judgment Title: DPP -v- Albie Lonergan Composition of Court: Kearns J., Murphy J., Clarke J. Judgment by: Kearns J. Status of Judgment: Approved
Outcome: Dismiss Appeal | ||||||||||
COURT OF CRIMINAL APPEAL Kearns J. Murphy J. Clarke J. [C.C.A. No. 111 of 2008] BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND ALBIE LONERGAN APPLICANT JUDGMENT of the Court delivered on the 8th day of May, 2009 by Kearns J. On 13th December, 2007 the applicant was convicted in the Central Criminal Court of the murder of his brother, Michael Lonergan, at 58 Baloonagh Estate, Tralee, County Kerry, on 31st December, 2006. The evidence established that shortly after 6 p.m. on the date in question an altercation broke out between the two brothers outside the porch of the dwelling house in question in the course of which Michael Lonergan sustained two stab wounds to the chest and one stab wound to the right thigh as a result of which he died later on the same day. The prosecution sought successfully to lead evidence from a number of people who were present at the said address at the time of the incident and in whose presence the wounded victim made statements in the aftermath of the stabbing. Louise O’Brien, the partner of Emmet Coffey, a brother of the deceased’s wife, told the Court that the two brothers started getting abusive towards each other and were throwing digs at each other. She called for her partner, Emmet Coffey, to come out of the house and separate them. While waiting for Emmet Coffey to come out of the house she saw the applicant throw a knife from his left hand onto the floor and saw Michael Lonergan clutching his side. Michael Lonergan turned to her and said he had been stabbed. His exact words were “the bastard stabbed me”. She also gave evidence that in the immediate aftermath of the incident that her partner Emmet Coffey chased the applicant down the road. At that point Michael Lonergan was lying down in the hallway of the dwelling house and holding his side. Some ten or fifteen minutes later Emmet Coffey returned to the house at which point strenuous efforts were made to staunch bleeding from the wounds sustained by Michael Lonergan. This involved putting pressure on the wound with a tea towel. Louise O’Brien gave evidence that while this was happening, Michael Lonergan said to Emmet Coffey “the bastard stabbed me, my own brother stabbed me”. Louise O’Brien clarified that no other person was involved in the fight with the applicant other than Michael Lonergan. Emmet Coffey stated in evidence that on returning to the house having chased the applicant, Michael Lonergan said to him “he is after stabbing me, Albie is after stabbing me”. Emmet Coffey stated that Michael Lonergan also asked “did I catch him?. Mr. Coffey believed that the interval between his pursuit of the applicant and his return to the house was within five minutes. Yvonne Lonergan, the wife of the deceased, also testified that when she went out to the hallway of the house the deceased told her it was the applicant who had stabbed him. Another witness, Jonathan Bentley, was also present in the house when the argument took place. He left the room in which he was sitting to go to the toilet and encountered Michael Lonergan in the hallway. He had his hand on his stomach and he was “all blood”. He caught Michael Lonergan as he was going to fall to the ground. Asked if the deceased had said anything, Mr. Bentley stated that the deceased replied “the cunt stabbed me”. At the outset of the trial, an objection was raised by counsel for the applicant that only those statements immediately contemporaneous with the stabbing should be admitted in evidence and that statements made some ten or fifteen minutes later, notably that of Mr. Emmet Coffey, should not be regarded as admissible because they did not form part of the res gestae. Before ruling on this objection, the learned trial judge conducted a voir dire examination of each of the aforementioned witnesses. As a result of a measure of agreement between the prosecution and the defence, the proposed evidence to be given by the various witnesses was edited and limited to that outlined above. The prosecution argued that all of the statements made by the deceased, which clearly identified the applicant as his assailant, were admissible as forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident. Following lengthy submissions involving much citation of relevant case law on the topic, the learned trial judge ruled that all of the statements of the deceased were admissible. That ruling is the first matter giving rise to the present appeal. A separate ground of appeal arises from the fact that on the fourth day of the trial the foreman of the jury brought to the attention of the learned trial judge that an issue had arisen over the weekend. It transpired that one of the members of the jury had been approached by an unidentified party in a public house and was told by this party to “make the correct decision”. On being advised of this matter, the learned trial judge conducted a discussion initially with counsel in the absence of the jury. The jury was then recalled and a request was made of the juror to identify himself which he duly did. At this stage the juror recounted the circumstances whereby he was in his local pub, was going to the bathroom and got tapped on the shoulder by a gentleman who was unknown to him and who said “I hope you make the proper decision next week”. The juror protested saying that the individual had got “the wrong guy”. Asked if he was intimidated by this approach, the juror responded “no”. There then followed a question advanced by the trial judge as follows:
JUROR: No JUDGE: I must ask you this. You have taken an oath to try this case on the evidence and not on any other basis. It is a perfectly human reaction for you, and for all of you, that this might, might perhaps subconsciously even, taint your view of the case one way or another. And it is to be presumed, of course, that you will act in accordance with your oaths. But I wonder do you feel, some people would feel that they might have been tainted by it and are prepared to say they would be. Do you feel you can continue this case purely on the evidence and excluding from your mind any, how should we put it, sinister implications? JUROR: Yes, your honour” In response, counsel for the prosecution submitted that the approach of the trial judge to the issue of one of the members of the jury being approached was appropriate and correct. Specifically, counsel for the prosecution pointed out that the applicant’s counsel did not seek the discharge of the jury, but simply requested that the trial judge would insure that the applicant had a fair trial, stating: “That is as far as I wish to go”. Mr. Denis Vaughan-Buckley, senior counsel for the respondent, argued that the learned trial judge had applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, in that he applied the objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial. SPONTANEOUS DECLARATIONS/RES GESTAE The prosecution sought the admission of the various statements made by Michael Lonergan on the sole basis that the same formed part of the res gestae and as such were admissible as evidence of the truth of their contents. The prosecution did not seek their admission as “dying declarations” or on any other basis. It is well established in Irish law that spontaneous declarations constitute an exception to the hearsay rule. As McGrath Evidence (Thomson Roundhall, 2005) makes clear at para. 5-53:-
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 3. In order for the statement to be sufficiently "spontaneous" it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event … 4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely … malice … 5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error ... In such circumstances the trial judge must consider whether he can exclude the possibility of error.”
In delivering the judgment of the Court, Kenny J. stated as follows at p.496:-
However, this Court does not see the decision in Crosbie as being in conflict with the decision of the Privy Council in Ratten v. R or the decision of the House of Lords in R v. Andrews albeit that those decisions carry the reasoning in Crosbie somewhat further. The Court is satisfied that the more evolved formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in Crosbie. The composite approach adopted by the trial judge which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this Court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given time period as to do so would lead to arbitrary and unfair results. Time in this context is an important factor but not a determinant. The true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the particular circumstances of the case. In the instant case it was never put or suggested to any of the witnesses that the statements as having been made by the deceased were not in fact so made. No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than that the applicant had killed his brother. No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any such motive. Furthermore, counsel for the applicant has not really challenged the admissibility of the statements made by the deceased in the immediate aftermath of the stabbing. The challenge is effectively confined to the statements made by Michael Lonergan following the return of Emmet Coffey to the dwelling house following his chase of the applicant down the street. The Court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted. They formed part of the same transaction, were sufficiently contemporaneous, and furthermore the Court is satisfied that there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified. The Court is of the view therefore that this ground of appeal must fail. INTERFERENCE WITH THE JURY The other ground of appeal, namely, that the trial judge should have discharged the jury because of possible interference with a member of the jury, can be quickly dealt with. In the view of the Court, the learned trial judge applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, being an objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial. The factual situation in the instant case is very different from that pertaining in DPP v. Mulder. The latter involved a culmination of a number of incidents:-
(b) At that stage the judge questioned the deceased’s brother in relation to the shouting and he stated that it was just his reaction at seeing his sister’s husband who had allegedly strangled her. (c) On the third day of the trial, prosecution counsel applied for an order excluding the deceased’s brother and his wife from court while the evidence continued, due to concerns by the gardai as to the behaviour of the deceased’s brother and his wife in court. (d) The note from the foreman of the jury stated that the deceased’s brother was making himself “familiar” with some members of the jury. (e) After the trial judge’s request to the foreman to ascertain the correct facts, the foreman addressed the court and referred to the outburst at the arraignment by the deceased’s brother, and stated that while the jury were waiting in the corridor outside the court, the deceased’s brother borrowed one of the juror’s newspaper and read out an article referring to the outburst indicating that this was him. (f) The foreman stated that the juror felt that the deceased’s brother was familiarising himself with him and at the end of that day he greeted the juror with a smile and a nod. (g) He further stated that the juror in question felt somewhat intimidated and uncomfortable. (h) When the juror was questioned by the judge there was a conflict in his answers from that which the foreman had reported.
The Court would dismiss the appeal on this ground also. | ||||||||||
