Supreme Court dismisses appeal on s.16 Criminal Justice Act 2006 retroactivity and jury charge fairness.

THE SUPREME COURT

[Appeal No. S:AP:IE:2015:000057]

Clarke C.J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF

PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

BRIAN RATTIGAN

APPELLANT

Judgment of Ms. Justice Dunne delivered on the 12th day of December2017

Brian Rattigan (hereinafter referred to as the Appellant) was convicted on the 17th December, 2009 of the murder of Declan Gavin on

the 25th August, 2001. He appealed his conviction to the Court of Criminal Appeal on some eighteen grounds but at his appeal

focused on three issues, two of which concerned s. 16 of the Criminal Justice Act 2006 and the third of which concerned the

concluding comments of the trial judge in his charge to the jury. The Court of Criminal Appeal in a judgment of the 19th February,

2013 rejected the Appellant's application for leave to appeal on all grounds.

Following that decision, an application was granted by the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act

1924 as substituted by s. 22 of the Criminal Justice Act 2006 and as amended by s. 59 of the Criminal Justice Act 2007 and s. 31 of

the Criminal Procedure Act 2010, that the decision of the Court of Criminal Appeal involved a point of law of exceptional public

importance and thus that it was desirable in the public interest that an appeal should be taken to this Court. The point certified was

as follows:

"Does s. 16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the

said Act?"

Subsequently, on an application made to this Court to advance further grounds of appeal in relation to the concluding remarks of the

learned trial judge in his charge, this Court, on the 16th December, 2015, permitted the Appellant to add the following grounds to his

notice of appeal:

"That the learned trial judge failed to maintain an impartial and fair role in the trial and his charge to the jury was

unbalanced and unfair and effectively amounted to a direction to the jury to convict the [Appellant] of murder.

That the learned trial judge erred in law and in fact in refusing to discharge the jury on foot of a defence application to do

so following his charge to the jury."

I have read in draft the judgment of Ms. Justice O'Malley and I agree entirely with her views concerning s. 16 of the Criminal Justice

Act 2006, but I respectfully find myself having a different view on the further grounds of appeal concerning the concluding remarks of

the learned trial judge in his charge to the jury. For that reason, I propose to consider only the issues arising in relation to the judge's

charge to the jury in this judgment.

It may appear from the grounds of appeal that criticism was made as to the fairness and impartiality of the trial judge over the course

of the trial as a whole. However, it is the case that the complaint of unfairness and lack of impartiality is focused entirely on the

closing remarks of the trial judge in his charge to the jury. In due course I will set out the passages from the charge to the jury now

complained of.

Background

In order to understand the issue raised by way of complaint in respect of the comments of the trial judge, it is necessary to refer

briefly to some of the facts of the case. These have been set out succinctly in the judgment of O'Donnell J. in the Court of Criminal

Appeal. I gratefully adopt the account given by O'Donnell J. in the course of his judgment commencing at paragraph 4:

"4. . . . there was a crowd of young people at the Crumlin Shopping Centre. One of the few places open and lit was the

Abrakebabra fast food outlet. There was a dispute and then a further altercation involving the occupants of a Nissan

Micra car. The car was described variously as grey, gold, or 'that imported beige colour'. It was recognised as a Japanese

import by the size and shape of its number plate. A passenger jumped out with a knife in his hand, pulled a balaclava over

his head, and then stabbed the victim, Declan Gavin. Declan Gavin ran into the Abrakebabra premises being pursued by

the assailant described by the witnesses as the 'knife man'. The door of the Abrakebabra was closed by the security

guard. The knife man tried to push and kick in the door of the Abrakebabra. He then ran back to the car, and sped away.

Declan Gavin was bleeding profusely from his wounds. There was blood on the floor throughout the restaurant.

Significantly there was also blood on the window of the Abrakebabra premises. That blood and the blood in the restaurant

was positively identified as that of Declan Gavin. A sample taken from the window 58 inches from the floor was positively

identified as the blood of Declan Gavin. A palm print, in what was described as 'a blood like substance', was found on the

window some 62 inches from the floor and close to the substance found to be the blood of the deceased. The palm print

was identified as that of Brian Rattigan, the accused/applicant. A finger print, which was developed on the door, was also

identified as that of Brian Rattigan.

5. Brian Rattigan was arrested the following week, and interviewed by the gardaí. A number of the interviews were

recorded in writing, which the accused refused to sign. Evidence of the content of the interviews was given at the trial

subject to some editing by agreement between the parties and further to directions given by the trial judge. In those

interviews Brian Rattigan was truculent, evasive and maintained that he had not been near Crumlin Shopping Centre for a

considerable time. When asked where he was on the Friday night and Saturday morning of the 24th and 25th of August

he replied, 'I can’t remember where I was, but I wasn’t near that place'. He added that he had not been there for months,

probably four months. He said he could not remember where he was that night. When asked whether he was at home at

his brother Joey’s birthday party (as had been suggested by another witness), he replied that he couldn’t remember

where he was. At one point he said he was 'riding a married woman. Her fella is away. I was with her. I won’t tell ye who

she is'. This somewhat incongruous piece of chivalry was expressed in coarse terms and more importantly was completely

lacking in any supporting detail. When it was put to him that his sister had said that he was at the party he replied 'I was

there but I never left the place all night'. He was asked did he know Joey Redmond. He replied that he was his brother

Joey’s 'best mate' and that 'he was always in my gaff'. On another occasion however he said he barely knew Joey

Redmond. When asked 'Can you tell us the truth’ he replied 'I won’t admit, youse prove it, that’s your job". He was asked

if he had been in a car Nissan Micra 93 D 38843 with Shane Maloney and Joey Redmond on the morning of the 25th of

August 2001 and replied that he couldn’t remember. In other interviews he repeated in crude terms his claim to have been

having an affair with a married woman and when asked whether he was with his lady friend on the night Declan Gavin was

stabbed he replied, 'no that’s not what I said'.

6. It was established in evidence that the entire glass window in Abrakebabra had been replaced only the previous week,

on the 16th of August 2001, and it was regularly washed three times a week, and therefore was probably washed as

recently as the Wednesday before the stabbing. Further evidence was given that a gold/beige Nissan Micra was found

burning in the Cookstown Industrial Estate at 9:15 am on the morning of the 25th of August, shortly after the stabbing.

Previously on the 20th of August, Garda O’Shaughnessy had stopped this car, then being driven by Shane Maloney and

containing Joey Rattigan, the brother of the accused, both associates of Brian Rattigan, and to whom reference had been

made in the evidence."

The judge's charge about which complaint is made was given over two days. Counsel on behalf of the Appellant set out in an

appendix to the written submissions that portion of the charge which is the subject of this complaint. It is as follows:

"So, Mr. Foreman, ladies and gentleman, you have heard all the evidence, you have heard the arguments advanced by

counsel on both sides, and, over the weeks that this trial has gone on, quite an amount of evidence has been offered.

From the prosecution view, that evidence that is offered is more than sufficient to justify a verdict of guilty. On the

defence view, too many questions are left unanswered and too many gaps remained unfilled.

Essentially, the prosecution contend that Mr. Rattigan was the knife man. If they’re wrong about that, and the knife man

was someone else, then there’s no doubt that Mr Rattigan has been most unfortunate. He was unfortunate, in the first

place if he wasn’t the knife man, in leaving his finger marks in two places at the crime scene, and not just anywhere in

the general vicinity of the crime scene, but on a door and window close to where a number of witnesses have put the

knife man. It was unlucky that one of the marks was left in a red substance which had the appearance of blood, unlucky

in that if the red substance was not blood at all or if it was blood, that it was blood from somebody else at the scene,

that it should be located four inches away from a point where a swab was taken, which was established to match that -

the DNA profile matched the blood of Mr Gavin. He was unlucky that the knife man used a Nissan Micra motorcar similar to

a Nissan Micra owned and driven by a friend of his, unlucky that the vehicle belonging to his friend was thought to have

been seen outside the shopping centre and that the vehicle was burnt out a few hours later, unlucky that those involved

in the incident happened to use the same term of abuse – 'Rats' – as a term of abuse that he used when interviewed by

the gardaí, though you may take the view that it’s a term that probably isn’t confined to any one individual, and that

there will be a particular section of the public for whom it is probably common place. Then, unlucky that he would

compound his difficulties by telling lies and bringing even greater problems on himself, lies if you accept the fact that what

he’s supposed to have said was in fact said, that the prints on the windows and the door are, in fact, his. So, unlucky.

However, there are people who are unlucky, and unusual coincidences do sometimes happen. Before you can convict in

this case, you have to be satisfied beyond a reasonable doubt that the combination of these matters is not a

coincidence. You have to be satisfied indeed that the suggestion of coincidence amounts to an affront or an insult to

your intelligence.”

Following the completion of the judge's charge to the jury and after the jury had retired an application was made by counsel on behalf

of the Appellant for the jury to be discharged on the basis of the charge just delivered. It would be worth quoting in full what was

said by counsel on behalf of the Appellant. He said:

"Just before you go, your Lordship charged the jury for approximately four hours and I have to say until five minutes ago I

would have had to describe your charge as a model of fairness and balance in terms of how you presented the legal

principles, summarise the evidence and indeed summarise the closing address of both counsel. Having done that, your

Lordship then made what I can only term a second rousing and powerful closing speech on behalf of the prosecution by

enumerating, in the manner in which you did, what can only be your view, because it was taken out of step from

everything else that was done as to the unluckiness of the accused on a number of different issues, I think which perhaps

numbered six or seven, which was not counterbalanced in any way, except by saying, but of course, people can be

unlucky and you can have unlucky circumstances and you concluded it then by suggesting that, effectively, for

somebody to be so unlucky to be not guilty would be in effect an affront or an insult to your intelligence."

Some discussion then took place between the judge and counsel for the DPP and for the Appellant. The learned trial judge

commented:

"I said quite the opposite. I said that the only situation in which they could convict would be if they were of the view

that to regard the items listed as coincidence was a situation where their intelligence was being affronted or insulted."

Counsel on behalf of the Appellant then reiterated his application for the jury to be discharged on the basis that the summary of the

case in the judge's terms had totally unbalanced what was up to that point a very fair and balanced charge. However, the learned

trial judge declined to discharge the jury. Thus, as can be seen, the issue now raised in relation to the judge's charge and the

complaint about the comments made by the learned trial judge in the course of his charge to the jury is a very net point as to the

comments made by the learned trial judge at the conclusion of his charge to the jury.

Comment in the course of a charge

Dermot Walsh in his book on Criminal Procedure (2nd Ed.) states:

"The judge is generally entitled to comment on the evidence in his summing up. In appropriate circumstances, this may

even extend to commenting adversely on aspects of the accused's explanation for his conduct in the matter charged. In

that event, however, the judge must be careful to avoid stating it in a way which is calculated to discredit the accused's

explanation."

Coonan and Foley in their work, The Judge's Charge in Criminal Trials also deal with the question of comment by the trial judge in the

course of a charge. Having observed that "there is no rule to the effect that the trial judge may not pass comment on either the

evidence or the prosecution/defence case", the learned authors go on to say that it seems to make reasonable sense that the trial

judge should within appropriate bounds comment on the relevant facts and offer the jury the benefit of his experience. However, as

they point out, this is always subject to the direction that the jury is free to disregard such comment if it disagrees. Coonan and

Foley go on to conclude:

"The trial judge must, therefore, be careful to balance his obligation to contextualise the facts and comment thereupon

against his duty to put the case fairly to the jury and not unduly influence its deliberations. Striking this balance is not

always an easy task . . ."

They went on to say that it was clear that a trial judge could not engage in such comment to a degree which imperils a fair and

proper trial:

"What is important is that, taken as a whole, the summing up must be balanced and fair to the accused."

It is instructive to look at the position on judicial comment as applies in the neighbouring jurisdiction. Archbold on Criminal Pleading,

Evidence and Practice (2016 edition) deals with the issue of comment commencing at paragraph 4 - 454 in some detail:

"The facts must be left to the jury to decide and the judge must not usurp their function: R. v. West, 4 Cr. App. R. 179,

CCA, R. v. Frampton, 12 Cr. App. R. 202 CCA. But the judge is entitled to express his opinion strongly in a proper case,

provided he leaves the issues to the jury: R. v. Cohen and Bateman, 2 Cr. App. R. 197, CCA. ... However, it is an inherent

principle of the system of trial in England that no matter how distasteful the offence, however the repulsive the

defendant, however laughable his defence, he is entitled to have his case fairly presented to the jury both by counsel and

the trial judge: R. v. Marr, 90 Cr. App. R. 154, CA.

For an example of a summing up in which the judge was held to have gone beyond the proper bounds of judicial comment

and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting,

see Mears v. R., 97 Cr. App. R. 239. The summing up was not saved by warnings given by the judge to the jury that they

were not bound by his view. This point was repeated in R. v. Wood [1996] 1 Cr. App. R. 207, CA where certain passages

of the summing up were criticised as being 'the stuff of advocacy'. . . . A judge is not confined to the argument

propounded by the prosecution on the one hand or the defence on the other: R. v. Evans (DJ)… He is entitled to make

uncontroversial comments as to the way the evidence is to be approached, particularly where there is a danger of the

jury coming to an unjustified conclusion without an appropriate warning: R. v. D. [2009] Crim. L.R. 591, CA (judge

referring to particular feelings of shame and embarrassment that might inhibit a woman from making a complaint of rape

against her partner)…"

An overview of the judgment of the Court of Criminal Appeal

The Court of Criminal Appeal noted an observation made by counsel for the Appellant suggesting that it is the current practice of

judges charging a jury to make no comment whatsoever on the state of the evidence but to simply and neutrally recite what has

been said by either side. As the Court of Criminal Appeal observed however, no authority was cited for the suggestion that a trial

judge could do no more than recite what was said by counsel for the prosecution and the defence in their closing speeches. O'Donnell

J. in his judgment went on to refer to the case of DPP v. DO'S [2004] IECCA 23 in which McGuinness J. stated:

"Comment is permissible if it is made in the course of a fair and balanced charge."

O'Donnell J. went on to make the following observation:

"The function of the trial judge is to give guidance to the jury not only as to the legal concepts involved, but also to

assist them in understanding the task which they are to perform. It should go without saying, that a jury is not chosen as

the finder of fact in criminal trials because its members have any training or expertise in criminal investigation, deductive

reasoning, or methods of logic; instead a jury makes decisions for which its potential members are admirably suited,

namely the application of common sense and experience to an analysis of the facts within a legal framework provided by

the judge. The function of a trial judge in this regard is to attempt to present to the jury the issue which it has to decide

in a clear and comprehensible way. In a simple case this may involve no more than identifying what has been said on each

side but in more complex cases it will necessarily involve a degree of analysis of the evidence if only to focus on the

central issues, and to present what is to be considered by the jury, in an ordered, comprehensible and intelligible way."

O'Donnell J. went on to say:

"What is precluded is conduct which is inappropriate for a judge and which is advocacy as to the outcome, which is

partisan, and which therefore departs from the fairness which should be expected of a trial judge. Furthermore if there is

such partiality, it cannot be cured by formulaic statements on the role of judge and jury and of the entitlement of a jury

to disregard the views of the judge. But analysis of any such complaint necessarily involves an analysis of the overall

charge, and indeed may involve consideration of the conduct of the trial as a whole."

The remarks of O'Donnell J. set out above provide a helpful description of the function of a trial judge in charging a jury. It will be

apparent that a mere recitation of the evidence, without any accompanying analysis of the facts required to be established in the

context of the relevant legal framework for the issues to be decided by the jury, may well be of limited value to the jury.

Submissions

Counsel for the Appellant in his submissions contends that the learned trial judge crossed the line of acceptable comment in the

passage complained of. It was said, and I quote from the written submissions:

"The repeated use of the words unfortunate and unlucky and the enumeration of the circumstances which the judge said

rendered the appellant unlucky, coming as it did after a long complex and restrained charge, had an electrifying effect.

The jury commenced their deliberations with the word 'unlucky' literally ringing in their ears combined with the words

'coincidence' and the term 'affront or an insult to [their] intelligence'."

Thus, it was argued that the trial judge failed in his duty of fairness and impartiality. It was observed that the trial judge had failed to

remind the jury, as they had been told the previous day in the course of the charge, that they could reject the trial judge's view if

they did not agree with it. It was then contended that the passage complained of was partisan in the extreme and designed to

impress upon the jury why the trial judge believed the Appellant should be convicted.

It is accepted on behalf of the Appellant that a trial judge is entitled to comment upon the evidence in a case. Nevertheless, it is

argued that the trial judge in this case went further than was permissible in that the remarks made by the trial judge gave to the jury

the clear impression that the judge favoured the prosecution case. Undoubtedly, the dividing line between what is permissible by way

of comment and what is not in any given case may be quite narrow.

Counsel on behalf of the respondent submitted that the trial judge had directed the jury on the law and on the evidence in a careful,

fair and balanced manner in all respects. It is contended that the approach of the defence has been to cherry-pick from the judge's

charge the aspects which it dislikes without viewing the charge as a whole. No issue was taken by counsel on behalf of the

respondent as to the authorities cited in relation to the role of a trial judge in ensuring a fair trial and as to the implications for a trial

where the trial judge does not act appropriately. Counsel noted the fact that the Appellant's counsel conceded that a trial judge was

permitted to comment on evidence, and further that the trial judge cautioned the jury that his comments, as indeed counsel's

comments, were matters that the jury should feel free to adopt or reject as they saw fit. It was submitted on behalf of the

respondent that the role of the trial judge in charging the jury is not simply to recite, rote-wise, the evidence heard by the jury. The

trial judge must direct the jury on legal principles and in doing so must engage with the evidence as adduced. The trial judge must

assist the jury in a practical way as to how they approach their task which of necessity involves an engagement with, and analysis

of, the evidence. As counsel put it, a trial judge will be criticised for failure to contextualise the facts having regard to the

appropriate principles of law applicable. It was emphasised that it was important to look not just at the closing remarks made by the

learned trial judge in isolation but to look at all of the charge.

Discussion

A number of authorities from this jurisdiction and from the neighbouring jurisdiction were referred to in the course of submissions by

counsel for both parties and some of those have been set out in detail in the judgment of O'Malley J. herein to which I have already

referred. For that reason, it is not necessary for me therefore to set out the extracts from those authorities here. Nevertheless, I

would like to make brief reference to the decision in Mears v. R [1993] 1 W.L.R. 818, a decision of the Privy Council which came from

the Court of Appeal of Jamaica and which is referred to in the passage from Archbold cited above. It would be helpful to set out the

background of that case to illustrate how the point in that case arose. That was a case in which the defendant had been charged

with murder. The prosecution relied principally on the evidence of a woman with whom the defendant had cohabited. She testified

that he had confessed to her that he had killed the deceased and had described how he had shot the deceased in the ears and had

burnt his body. The evidence of a pathologist indicated that there were burns and other injuries but no gunshot wounds on the body

of the deceased. The defendant denied killing the deceased or making the alleged confession. In his summing up the judge expressed

views favourable to the prosecution, although he directed the jury that such views were not to be considered as binding on them. He

undermined the importance of the defence's main point that the pathologist's evidence as to the cause of death was completely

inconsistent with what the defendant had allegedly said. The defendant was convicted. On appeal, the appeal was allowed on the

basis that the trial judge in the comments made to the jury went beyond the proper bounds of judicial comment. As Lord Lane in the

judgment of the Privy Council noted:

"Their Lordships consider that the judge's comments already cited went beyond the proper bounds of judicial comment

and made it very difficult, if not practically impossible, for the jury to do other than that which he was plainly suggesting.

Their Lordships cannot, taking the summing up as a whole, overlook the fact that perhaps the most important point in the

defence case was effectively neutralised by the way in which the judge dealt with the identification of the body. Finally,

the failure to ascertain what it was about the evidence which was puzzling the jury and the reiteration thereafter of some

of the questionable parts of the summing up proper are sufficient to convince their Lordships that this conviction cannot

be allowed to stand."

It appears that in the course of the trial, the jury had asked the judge for help. They indicated to the trial judge that they had a

problem relating to the evidence. As a result of that, the judge, instead of asking them to retire and set out their problem in writing

so that he could help them with their difficulty, "immediately embarked on a recapitulation of the evidence, repeating many of the

matters which are the subject of complaint in the first direction and in particular the 'coincidence' point with which their Lordships

have already dealt". What then were the actual comments complained about? In that context it is useful to quote again from the

judgment of Lord Lane:

"The judge, having set out the case advanced by each side, then made this comment of his own upon the defendant:

'He says she is not to be believed, because she has fabricated this whole thing, and this is a comment I make

again. I recoil to think that any human being could be so degenerate, so wicked that they would concoct a story

like this, especially a woman who has borne from her womb, a child for a man. I am not saying, but to me, it is

inconceivable that a human being could do this, just to settle a score'.

Then he went on to say:

'But you are the judges of the facts, it is a comment I am making; and when you think they have been separated

for how many months and she never, from what you heard, she never is telling any lie on him to get him into prison,

she never make any other report over all these months. In August now, she says he tells her something and

following the report she made, this body is recovered.'"

Lord Lane went on to make the following observation in relation to the evidence in the case:

"There were several points which told in favour of the defendant at trial. First there was the unlikelihood of anyone

making this sort of confession to a woman who had every reason to dislike him, who, although she was less than frank

about it when she gave evidence, eventually admitted hating him. The judge made this comment:

'It might very well be that notwithstanding the relationship, the man believed that because she bore him a child …

he could confide in her on the basis that for the sake of the child … she wouldn't go and tell anybody that her

child's father killed a man. He probably thought that. That is a matter for you'.”

The observations of Lord Lane in Mears v. R. are very helpful on the role of a trial judge in charging a jury and, particularly, in respect

of comments made by a trial judge in the course of a charge. In that case, the trial judge had effectively told the jury that they

could believe the woman who had given evidence against the accused despite the fact that she every reason to dislike him, was

reluctant to admit this and that part of her description of the alleged confession simply could not have been true when one bore in

mind the evidence of the pathologist.

In the course of submissions, counsel on behalf of the respondent relied on the decision in the case of DPP v. Connolly [2003] 2 I.R. 1,

at page 7, in which an issue arose as to whether or not the Gardaí fabricated the statement of the accused in the course of which

the only evidence against him was a signed inculpatory statement allegedly made by him while in custody. In the course of his

charge, the trial judge in that case pointed out that the issue in the case revolved around whether the jury accepted the Garda

account to be true beyond reasonable doubt. Hardiman J. in the Court of Criminal Appeal then observed:

"The judge then discussed the question of what motive might have existed to fabricate a statement:-

'…that would make the two members of An Garda Síochána to put their careers on the line without any hope of

reprieve if they were found out to have fabricated a document of this nature simply to have the accused falsely

accused and convicted.’

The trial judge also said:-

'I do not believe that it is possible for you to address this any other way than that if you are not happy to act upon

the statement, well then I think you have to get into the area of coming to the conclusion that the gardaí were

lying. I do not see it as being any other way'."

No objection was taken to that form of words after the delivery of the charge to the jury but it did form an issue in the grounds of

appeal and it was contended that the passage above in effect required the accused person to prove a motive on the part of the

Gardaí. Hardiman J. commented:

"We do not consider that the trial judge's comments can be interpreted in this way. The jury had already been fully and

properly instructed as to where the onus of proof lay and the passage immediately before that complained of makes it

perfectly clear that the whole case comes down to the credibility of these garda witnesses. It would clearly not be proper

in all cases, where there was a conflict of evidence, to suggest for that reason only, one side or the other was lying. It

appears to us, however, that in the circumstances of this case the gardaí's denials of what was put to them by counsel

for the accused were either true or were knowingly false. There is simply no scope for mistake, misapprehension,

misunderstanding or failure of memory. The trial judge was doing no more than drawing the jury's attention to the realities

of the position."

Certain observations can be made at this stage. First of all, it is quite clear that it is open to a trial judge to comment on the

prosecution and/or defence case as is readily accepted by counsel on behalf of the Appellant. Secondly, any comments made must be

consistent with the obligation to provide the jury with a fair and balanced charge. Thirdly, a summing up which goes beyond the

bounds of what is proper in terms of judicial comment will not be saved by warnings given by the judge to the jury that they were not

bound by his view.

It is important to recall that the learned trial judge in the course of his charge explained to the jury their role as judges of fact and his

role as the party in charge of the law in relation to the case. Insofar as comment was concerned he pointed out that, while others

were free to comment, it was the jury alone who could decide the facts. As he said:

"It may be that I'll comment on the facts, or it may be that you'll feel that I am commenting on the facts, or feel that you

can glean something of my own views, my personal views, though I have to say that it isn't my intention to express

personal views to any significant extent at all. However, insofar as you feel you can identify any views of mine, if any

comments I do make appeal to you and they accord with your own views of the case, well and good, that's excellent.

However if anything that I say is not to your liking, if you disagree with what you think I am saying, then not only are you

entitled to reject what I have to say by way of comment but you are actually bound to do so and that's because, in the

heel of the hunt, my view on the count doesn't count; it's your view on the facts that we're interested in, and in

particular it's your view on the ultimate, crucial decision as to what the verdict should be."

He made a similar observation in relation to comments made by counsel on either side. As he pointed out, if what counsel had to say

was helpful well and good, but if their view was not to that effect, they could reject that comment. It is not necessary for a trial

judge, having clearly and expressly stated what the function of the jury is and the extent to which they can take on board or reject

comments made by either the trial judge or counsel, to reiterate this point again in the course of the charge. Trial judges sometimes

do so out of an abundance of caution but there cannot be a hard and fast rule to the effect that such a direction must be given on

more than one occasion during the course of a trial. The trial judge in this case, as set out above, gave clear and explicit directions

to the jury as to their approach to any comment that might be made by him or indeed by counsel in the course of their address and

his charge to the jury.

The trial at issue in this case lasted a number of weeks. It was a complex and difficult case. The trial judge had to summarise the

evidence for the benefit and assistance of the jury. He then summarised the prosecution and the defence cases. No issue has been

taken as to the manner in which he did this. He then focussed on the issues that would have to be considered by the jury having

regard to the evidence given and the prosecution and the defence cases in the passage of which complaint is made. Thus, the

learned trial judge highlighted the fact that if the Appellant in this case was not the "knife man" it followed that the jury would have

to reject the evidence as to a series of matters which placed the Appellant at the scene of this murder at the relevant time. There

was the issue as to finger marks of the Appellant which were found on a door and window of the premises at which the incident took

place; that the knifeman arrived at the scene and left in a Nissan Micra, similar to one owned by a friend of his, that that vehicle was

found burnt out a few hours later; the fact that the Appellant “would compound his difficulties by telling lies” to mention a few of the

relevant matters referred to by the learned trial judge. It is important to bear in mind that the trial judge, in the course of the

passage complained of, pointed out to the jury that they did not have to accept those facts. As he said “…if you accept the fact

that what he’s supposed to have said was in fact said, and that the prints on the window and door are, in fact, his.” In other words,

the trial judge was making it clear to the jury that it was for them to find the facts. He reiterated the point that the jury could not

convict unless they were satisfied beyond a reasonable doubt that the combination of these matters was not a coincidence. In my

view, to use the words of Hardiman J. in Connolly referred to above, the trial judge was doing no more than drawing the jury's

attention to the realities of the position. As O'Donnell J. pointed out in the judgment of the Court of Criminal Appeal, the learned trial

judge did not comment on the veracity of any witness or express his own views on some contested issue of fact which lay readily and

properly within the expertise of the jury. The comments made by the trial judge on the evidence made it clear that it was for the jury

to decide the issues of fact. The trial judge brought to the attention of the jury in a clear and explicit manner the issues they had to

consider in order to reach a conclusion on the guilt or otherwise of the Appellant. There could not be a clearer contrast between the

approach of the trial judge in this case with that of the trial judge in Mears, where the trial judge clearly and one might add,

successfully, influenced the jury to accept the evidence of the principal witness in that case.

It is therefore with respect that I find myself coming to a different conclusion on this issue to that of O'Malley J. She set out a

characterisation of the defence case in paragraph 77 of her judgment to the effect that the defence was confined to the argument

"that certain matters were not proved to the required standard (as in the attempt to cast doubt on the reliability of the garda

evidence that the Appellant said he had not been at the scene for some months); or not capable of bearing much weight (as in a

suggestion that it might be expected that the Appellant would lie to gardaí, or a reminder that there were nineteen other fingerprints

found on the door and window that were not identified) or else were irrelevant as not being sufficiently connected to the Appellant

(as with the evidence relating to Shane Maloney's car, or the red substance on the window). Overall, the argument made was that

the jury should either not believe particular items of evidence beyond reasonable doubt, or should not accord them sufficient weight

to convict. At no stage was there an effort to put forward an alternative explanation of the facts, if they were accepted as such.

The issue was whether or not the prosecution had proved sufficient facts by sufficiently strong evidence. Having regard to the

burden and standard of proof that was a perfectly legitimate line to take”

I do not disagree with that characterisation of the defence case. It is true the defence put forward on behalf of the Appellant did not

refer to coincidence, but it seems to me that if the jury were satisfied as to the proof of the relevant facts they could only have

reached a verdict of guilty if satisfied that the Appellant was indeed the knife man and that the relevant facts proven as to, for

example, the location of his fingerprints on the windows and door, were not an unfortunate coincidence. A trial judge has to put into

context the evidence that has been given in a case in order to assist the jury to form a view as to whether the prosecution has

established the guilt or otherwise of an accused person. That being so, it is difficult to see how that can be done if a trial judge does

not explain the relevance and importance of particular pieces of evidence thus enabling the jury to address their minds to that

evidence when they are deliberating on the issue or issues to be tried. If the jury has to set sail in a sea of evidence with no

guidance to direct them towards a verdict, whether that verdict is guilty or not guilty, how are the jury to reach their destination?

The more complicated the case, the greater the need there will be for clear instructions from the trial judge. It is undoubtedly the

case that the trial judge in this case provided the jury with clear and concise instructions at the end of a difficult and complex case

whilst at the same time making it clear that the decision on the facts was a matter for them. The trial judge, in the comments

complained of, did not express to the jury any view as to any witness’s credibility or any view on any aspect of the evidence. He did

not endorse the testimony of any witness or denigrate the testimony of any witness. He simply made it clear to the jury that if they

were satisfied beyond a reasonable doubt as to a series of facts which he highlighted, then the only outcome of the case was a

conviction. I cannot see how his reference to coincidence renders his charge to the jury unsatisfactory. In my view, the learned

judge did not overstep the bounds of what is permissible. The charge to the jury in this case is far removed from the type of charge

which was found to be so objectionable in Mears.

The concluding remarks of O’Donnell J. in his judgment in the Court of Criminal Appeal succinctly put the matter thus:

"At the end of this lengthy period there was however a large number of individual pieces of evidence which required to be

gathered and synthesised. When that exercise was done certain observations might readily be made about the logical

conclusions that were open if that evidence was accepted – and it was not seriously challenged. In this case the judge

did not comment on the veracity of any witness, or express his own views on some contested issue of fact which lay

readily and properly within the expertise of the jury. Instead he made certain observations on the logic of the existing

evidence with which it must be said it is difficult to argue. The particular passage is, as the applicant submitted, both

clearly and powerfully expressed, but clarity of expression and analysis is not necessarily a vice in a trial judge attempting

to give assistance to the jury by way of an oral presentation which will be heard only once by the jury. Ultimately this is a

matter for the judgment of this Court. Taken in the overall context of this case, the Court does not consider that the

charge to the jury can be said to be unbalanced or that the trial judge commented in a fashion which was inappropriate

for a trial judge. Accordingly, these grounds of appeal fail."

I agree with his comments, particularly those which describe the passage complained of as being clearly and powerfully expressed. As

I said previously, the dividing line between permissible and impermissible comment by a trial judge in the course of a charge is a

narrow one. In my view, the learned trial judge's comments in this case remained within the dividing line of permissible comment.

Conclusion

I would also dismiss the appeal on this ground.