Court of Criminal Appeal quashes affray convictions where evidence was insufficient to prove unlawful violence beyond reasonable doubt.

[2004] IECCA 3

THE COURT OF CRIMINAL APPEAL

110/01 & 109/01

Hardiman J.

Lavan J.

de Valera J.

Between:-

OWEN REID

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

CHRISTOPHER KIRWAN

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 12th day of February, 2004.

1. Each applicant seeks leave to appeal against his conviction on a charge of affray contrary to s.16 of the Criminal Justice (Public

Order) Act, 1994.

2. It appears that applicants were jointly tried on this charge before the Dublin Circuit Criminal Court (His Honour Judge Lynch and a

jury) between the 28th March, 2001 and the 3rd April, 2001. Each applicant was also charged with assault: Owen Reid was charged

with assault on a peace officer, Garda Mark Dempsey, contrary to s.19 of the Criminal Justice (Public Order) Act, 1994. Christopher

Kirwan was charged with assault on a different peace officer, Garda Mark Benson, contrary to the same Section. Each of the

applicants was acquitted on the charge of assaulting a peace officer.

3. The offences were all alleged to have occurred at Georges Place, Dublin 1 immediately beside St. George’s Church which was then

in use as the “Tivoli Theatre”, on the 13th December, 1999.

Grounds of appeal.

4. Each applicant advanced a number of grounds of appeal. It is, however, convenient to deal first with grounds which raise a number

of points in common. These contentions may be summarised as being: that the learned trial judge should have withdrawn the count of

affray from the jury when requested to do so by counsel for the applicants; that the convictions of the count of affray are

inconsistent with the acquittals on the assault counts; that the learned trial judge ought to have instructed the jury that, if the

accused were acquitted on the assault charges, there was no case against them for affray; and that the convictions were perverse.

The evidence.

5. The evidence disclosed that the Gardaí were called to the area of St. George’s Church, where, apparently, a crowd coming out of

that building had become disorderly. It appears that as a number of gardaí, including a Garda Murray, approached the disorderly

group, his attention was drawn to another and separate group which had become disorderly and apparently included the accused Mr.

Kirwan. A Garda Benson alleged that this group of people fighting consisted of “at least four people, definitely two, but at least four”

(sic). He said that one of these was Mr. Kirwan. He said he attempted to arrest him and he violently resisted in a manner described

graphically by the guard in evidence. This interaction with the guard was the basis of the charge of assault: the previous fighting

alleged by the same guard was the basis of the charge of affray.

6. In relation to Mr. Reid, Garda Dempsey gave evidence that when he came on the scene he saw Garda Benson who was attempting

to arrest a man who must, on the evidence, have been Mr. Kirwan. He says that as he went to assist him he was kicked and

otherwise obstructed by Mr. Reid. This kicking and obstruction is the basis of the charge of assault against Mr. Reid. The basis for the

charge of affray relates to a slightly earlier time and is based on the evidence of a Garda Murray.

7. Although a considerable number of witnesses were called at the trial, evidence tending to implicate the accused was identified with

precision on both sides in the course of an application for a direction at the end of the prosecution evidence.

The direction application.

8. At the trial, counsel for each accused conceded that his client had a case to answer on the assault charge. The application

related only to the charge of affray. Counsel for each accused submitted that there was no evidence against his client to establish

this offence.

9. In reply to this application counsel for the prosecution said, in relation to Mr. Reid:-

“My Lord, in relation to Mr. Reid, there is clear evidence, in my respectful submission, that he was involved in an affray,

and the evidence was given by Detective Garda Adrian Murray, who gave evidence that he became aware of a group of

people fighting amongst themselves… He identified Mr. Reid as being part of the group that had been fighting, involved in

the initial fight, and in those circumstances it would be my respectful submission that a jury would be quite entitled to

convict him of that offence if they accept Garda Murray’s evidence”.

10. Garda Murray’s evidence was to the effect that he attempted to rescue a man who was on the ground being kicked in the head

by a man unknown to the guard. The man was on the ground because of a scuffle involving punches being thrown. The guard

intervened specifically because he heard a sound like glass or a bottle smashing. He attempted to arrest the assailant of the man on

the ground, who punched and kicked him. He had a grip on the man’s assailant but eventually lost it and he and a Garda Gallagher

found themselves backed against the side railings of the church with a crowd in front of them. In his direct evidence, the only

mention of Mr. Reid was “I recognised one person only in the crowd and that’s the defendant Owen Reid”. In cross examination he

said, again in his only reference to Mr. Reid, “I recognised Mr. Reid as one of the crowd of twelve that were directing their anger at

myself and Garda Gallagher”.

11. The case for the defence which was put to the guard, and later given in evidence, was that Mr. Reid was not part of the crowd in

question, that he had come out of a nearby public house, seen a friend of his being attacked by members of a crowd and was

attempting to pull him away when he was gratuitously and unlawfully struck with a baton.

The offence of affray.

12. This offence in its present form is created by s.15 of the Criminal Justice (Public Order) Act, 1994 which provides as follows:-

“(1) Where –

(a) Two or more persons at any place… use or threaten to use violence towards each other, and

(b) The violence so used or threatened by one of those persons is unlawful, and

(c) The conduct of those persons taken together is such as would cause a person of reasonable firmness present at that

place to fear for his or another person’s safety.

Then, each such person who uses or threatens to use unlawful violence shall be guilty of the offence of affray”.

13. The following subsection provides that a threat cannot be made by words alone.

A prima facie case of affray against Mr. Reid?

14. In considering this question, it must be first be noted that the assault alleged against Mr. Reid took place, on the prosecution

case, after the events alleged to constitute affray, and the evidence of this offence was given by a different guard to the guard who

gave evidence of affray. The evidence in relation to the assault, clearly, failed to convince the jury.

15. The evidence in support of the charge of affray was that Mr. Reid was one of a crowd who “were very hostile and there were

punches and kicks being thrown”. Unidentified members of the crowd were alleged to be calling out “get them get them”, which must,

on the prosecution case, be taken as referring to the guards who were backed up against the railings. This indeed is made certain by

the guard’s comment in cross examination that Mr. Reid was “one of the crowd of twelve that were directing their anger at myself and

Garda Gallagher”. There is no evidence placing Mr. Reid amongst the crowd members of which were, at a somewhat earlier stage,

fighting amongst themselves and one of whom Garda Murray sought to arrest. Furthermore, there is no evidence of Mr. Reid either

doing or saying any specific thing. The only prosecution evidence is that he was “one of the crowd” that threatened the Gardaí.

16. The offence of affray as presently constituted by the Act of 1994 is one of those which replaced the older common law offences

which, essentially, criminalised fighting in public. These offences were riot, rout and affray and they have been replaced by ss.14, 15,

and 16 of the 1994 Act respectively. The first of these, s.14 requires twelve persons present together and using or threatening to

use violence for a common purpose. The second, created by s.15, requires three or more persons present together using or

threatening to use unlawful violence: this is the new offence of violent disorder. Section 16 creates the new offence of affray: its

terms have been set out above. It is intended to cover conduct which does not amount to riot or violent disorder.

17. Unlike the offences of riot or violent disorder the actual or threatened use of violence for the purpose of the new offence of

affray must be violence “towards each other”. This point was raised at the trial but dismissed by the learned trial judge on the basis

that it was unnecessary that each defendant at the joint trial should have used violence towards the other co-defendant. This is of

course true but I think irrelevant to the fundamental issue in the case against Mr. Reid. This is that there is no evidence of Mr. Reid

using violence towards any person except Garda Murray and Garda Dempsey. He was not charged with any assault on Garda Murray

(or the guard who was with him) and was acquitted of the charge of assaulting Garda Dempsey. But there is no evidence whatever of

him using, or threatening to use, unlawful violence towards any other person, and specifically towards any member of a group of two

or more people. That being so, it follows that there was no prima facie case against Mr. Reid on the charge of affray and that that

count should have been withdrawn from the jury.

The case against Mr. Kirwan.

18. I do not believe that the point which has availed Mr. Reid is available on the evidence to Mr. Kirwan. In his case there was some,

even if slight, evidence of affray in the form of the evidence of Garda Benson that the applicant was “involved in fighting with two to

four” people. Clearly, this guard’s evidence did not satisfy the jury on the question of assault but that did not preclude them from

convicting on the same guard’s evidence of affray. Nor can it be said that the evidence which failed to satisfy them on the assault

charge was the same as the evidence which satisfied them on the charge of affray. The events said to constitute the offence of

affray, on the prosecution case, happened before those alleged to constitute assault and were, if only slightly, separate both in form

and in time.

In dealing with Mr. Reid’s appeal, we dealt first with the criticism of the failure to grant a direction, because that was the narrowest

of the points raised. Since this point does not apply in Mr. Kirwan’s case, the Court proposes to deal with what one might call the

next narrowest point, the criticism in a particular respect of the charge to the jury.

Two views open.

19. In the well known case of DPP v. Byrne [1974] I.R. 1 this Court considered certain aspects of a correct charge to a jury. Kenny J.

gave the judgment of the Court and said:-

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused and it is

helpful if that degree of proof is contrasted with that in a civil case. It is also essential, however, that the jury should be

told that the accused is entitled to the benefit of the doubt and that when two views on any part of the case are

possible on the evidence, they should adopt that which is favourable to the accused unless the State has established the

other beyond reasonable doubt”.

20. The last portion of this quotation, dealing with the position which arises “when two views on any part of the case are possible on

the evidence” is one of very great practical importance. It must very often happen that a jury come to this conclusion – that two

views are possible on some part of the evidence so that they are then required to adopt that most favourable to the accused, unless

the prosecution has established the other beyond reasonable doubt. But the starting point for the very important exercise required of

the jury in this context is that two views be possible. It is to misstate the principle so carefully expressed by Mr. Justice Kenny to

require, instead of two views being possible that there be two views which are equally open, equally possible or equally probable or

anything of that sort.

21. In DPP v. Wallace CCA unreported 30th April, 2001, a trial judge had used the expression “two or more conclusions of equal

weight” in directing the jury as to the circumstance in which an inference more favourable to the accused should be adopted. Keane

C.J., giving the judgment of this Court, cited the passage from Byrne quoted above and continued:-

“That is what the jury should have been told in this case but unfortunately was not told because the reference to two or

more conclusions of equal weight adds a further gloss to what was said by this Court in Byrne’s case which in the view of

this Court could have had the consequence of confusing the jury and leaving them to think that on some aspects of the

case at least they were entitled to decide matters on the balance of probabilities, which is clearly not the law”.

22. In the present case the learned trial judge in charging the jury said (Book E page 14):-

“If in the course of your deliberations you come to a part of the evidence where two views are equal, you must take the

view that is favourable to each accused when you are dealing with a part of the evidence, but if you are satisfied of the

correctness of the other view, you are entitled to act (on) it. So if two views are equal you must take the view that is

favourable to the accused, unless you are satisfied of the correctness of the other view beyond a reasonable doubt”.

23. This passage, it seems to us, falls into the same error as that identified in Wallace. The learned trial judge described the starting

point of the exercise he was requiring the jury, in certain circumstances, to undertake as one “where two views are equal” or

(indistinguishably) “if two views are equal”. But that is not the law. The starting point for the relevant exercise may accurately be

described in the phrase “if two views are open” or “if two views are possible”, which is close to the wording of the relevant passage in

Byrne. The difference is quite a stark one: two views may be open, even if one of them is very much less probable than the other.

But if the two views must be “equal”, that necessarily implies that the inference most favourable to the accused should not be drawn

even if it is only slightly less probable than the inference favouring the prosecution. This is to introduce the civil evidential standard at

least into some part of the case.

24. In the circumstances, it is difficult to regard the conviction of Mr. Kirwan as safe or satisfactory.

Other points raised.

25. As indicated above, the Court has decided these appeals on the narrowest available point, in each case, in keeping with the well

founded judicial procedure of resolving no issue broader than is necessary to dispose of the instant case. It is right however to point

out that each appellant’s case raised broader points of far more general application. The first of these related to alleged duplicity in

the conviction for affray. It is right to record that very substantial and weighty oral and written arguments were directed by each

side to this point, the applicant relying in particular on The State (McLoughlin) v. Judge Shannon [1948] 1 IR 439 and The People

(Attorney General) v. Blogh [1958] IR 91. The State relied in particular on ss.1 and 5 of the Criminal Justice (Administration) Act 1924

and portions of the first schedule to that Act.

26. The second point of substance related to the nature of the new offence of affray itself. In refusing a direction, it was submitted,

the learned trial judge entirely failed to take into account the possibility that a person might be “involved in a fight” in the exercise of

the right to use lawful force to protect himself or another. The view he took however might derive some support from the wording of

s.16 of the Act of 1994. This Section, which creates the offence, requires that two or more persons in a particular place “use or

threaten to use violence towards each other” and that “the violence so used or threatened by one of those persons is unlawful”.

(Emphasis added). There is clearly a substantial issue, which does not require to be determined in this case, as to whether the

Section is broad enough to capture a person who is using violence, but not unlawfully so, against another who is using violence

unlawfully, on the basis that the conduct of those persons taken together “is such as would cause a person of reasonable firmness

present at that place to fear for his or another person’s safety”. If that is the correct construction of the Section then obviously it

raises questions of a far reaching nature.

27. The Court notes these two points in deference to the elaborate scholarly arguments which were devoted to them and in order to

point out their obvious significance. It is not appropriate to express any other view upon them.

Conclusion.

28. In each case the Court will treat the hearing of this application as the hearing of the appeal, allow the appeal and quash the

convictions. Having regard to the time which has elapsed, and the fact that both accused were dealt with by non-custodial

sentences, it does not appear appropriate to direct a retrial. The amount of the fine imposed must be repaid to each applicant.