Court of Appeal dismisses appeal against conviction for assault and violent disorder, upholding jury verdict.

THE COURT OF APPEAL

Record No. 210/2017

Birmingham J.

Mahon J.

Edwards J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

LARRY McCARTHY

APPELLANT

JUDGMENT of the Court delivered on the 31st day of May 2018 by Mr. Justice Mahon

1. The appellant has appealed his conviction following a jury trial at the Special Criminal Court on the 3rd July 2017 of two counts

namely:-

• Count 1: that on the 25th November 2014 at Cornmarket Villas, Little Gerald Griffin Street, in the city of Limerick the

appellant assaulted David Foran causing him harm contrary to s. 3 of the Non Fatal Offences Against The Person Act

1997, and

• Count 2: that on the 25th November 2014 at Cornmarket Villas, Little Gerald Griffin Street, in the city of Limerick,

committed violent disorder in that he, with two or more other persons present together used or threatened to use

unlawful violence and such conduct, taken together was such as would cause a person of reasonable firmness present at

said place to fear for his or another person’s safety, contrary to s. 15 of the Criminal Justice (Public Order) Act 1994.

2. The appellant has also appealed against the sentence, imposed on the 31st July 2017, of three years imprisonment in respect of

count no. 1, six years imprisonment in respect of count no. 2, said sentences to be concurrent and to date from the 30th July 2015.

3. The grounds of appeal,(relating to conviction), relied upon by the appellant are:-

(i) the learned trial judges erred in law or in fact or in a mixed question of law and fact in admitting the statements of

David Foran under s. 16 of the Criminal Justice Act 2006;

(ii) the learned trial judges erred in law or in fact or in a mixed question of law and fact in apportioning excessive weight

to the statements of David Foran, admitted under s. 16 of the Criminal Justice Act 2006, and

(iii) the verdict was perverse and against the weight of the evidence.

4. The background facts can be briefly stated as follows. It is alleged that on the 25th November 2014 at Cornmarket Villas in Limerick

David Foran met with another man for the purposes of receiving money from him. Mr. Foran was then confronted by a number of

individuals some with their faces covered with scarves, and it is alleged that the appellant was one of those. The appellant’s face was

not covered. These men challenged Mr. Foran as to why he was demanding money. He was then severely beaten by the men, his

face having been covered by his hoodie, and in the course of that beating it is alleged that he was stabbed in the leg by the

appellant.

5. Approximately two weeks previously, a road traffic accident occurred at Lelia Street in Limerick when Mr. Foran, a pedal cyclist

was in collision with a Honda motorcycle. When gardaí arrived to investigate the motor cyclist gave a false name. His correct name

was Cathal Kavanagh. He later gave his reasons to Rachel McAllister, the appellant’s partner, for giving a false name as the fact that

he had no insurance and was disqualified and did not want to get into trouble with the gardaí. Mr. Foran was treated in hospital for

his injuries. It was alleged that on the 15th November 2014, following discussions between Mr. Kavanagh on the one hand and Mr.

Foran and Ms. McAllister, on the other hand, it was agreed that Mr. Kavanagh would compensate Mr. Foran with a sum of money and

the transfer of legal ownership of the motorcycle as an alternative to Mr. Foran pursuing a claim through the courts. On the 25th

November 2014 it was agreed that Mr. Foran would meet Mr. Kavanagh to conclude the deal. Shortly before the meeting, Ms.

McAllister received a text message to the effect that Mr. Kavanagh was not available to attend the meeting but that another

individual would do so on his behalf. It was immediately following the meeting with that other individual that the confrontation with a

number of men, including the appellant, took place. At the time of the meeting Mr. Foran was wearing a bullet proof vest. He managed

to pick up the knife that had been used to stab him in the assault as he escaped from the men and made his way home. He received

treatment for his injuries in Limerick University Hospital, which included a 4cm deep puncture wound to his left thigh.

6. The central issue in the appeal concerns the admission into evidence pursuant to s. 16 of the Criminal Justice Act 2006 of two

written statements made by Mr. Foran to gardaí on the 27th November 2014 and the 15th December 2014 respectively. The reading

back of the first statement to Mr. Foran was video recorded, while the second was not, at the request of Mr. Foran. At trial, Mr.

Foran’s evidence was broadly consistent with these statements except in relation to the identification of the appellant as the person

who had threatened and stabbed him on the 25th November 2014.

7. On the 10th April 2015, approximately four months after Mr. Foran made his second statement to the gardaí, Mr. Foran signed a

further statement in the presence of his solicitor, Mr. O’Brien. That statement read:-

“I, David Foran, of 7 Grattan Court, Clare Street in the city of Limerick (DOB 24/3/1984), which to formally withdraw the

allegations made by me against a Larry McCarthy with an address at Tower Lodge, Crossagalla, in the city of Limerick,

arising out of an incident in the Cornmarket area of Limerick city on or about the 26th November 2014.

I do not wish the matter to proceed and it is not my intention to attend to court.

I regret any inconvenience caused and I confirm that I wish no action to be taken against Larry McCarthy based on any

erroneous statement I may have made.”

8. In his statements of the 27th November 2014 and the 15th December 2014 Mr. Foran provided a detailed account of his collision

with the motorcycle in mid-November 2014 and of a number of meetings he held with Mr. Kavanagh in the immediate aftermath of that

accident, and of the agreement he reached with Mr. Kavanagh in relation to compensation. He described how an arrangement was

made to meet with Mr. Kavanagh’s cousin on the 25th November 2014, of going to that meeting, and being asked to accompany that

person to the car park at Cornmarket Villas for the purposes of counting the money that was to be paid to him. He also provided a

detailed account of being confronted by a number of men at the car park and, more specifically, being assaulted by a man he

identified as the appellant. In relation to his references to the appellant, or at least to an individual whom he identified as Larry

McCarthy, Mr. Foran stated:

(In the statement of the 27th November 2014)

“..(W)hen I went in through the gate a few fellas with their faces covered with scarves closed the gate behind me. Next,

Larry McCarthy told me who he was. He was stocky with red hair and unshaven like me on his face. It wasn't a beard,

but like, he hadn't shaven in a few days. He said, I know you're David Foran. What are you doing demanding more off my

cousin? I asked him what was he on about that Cathal had knocked me down and it was he who wanted to settle out of

court. I asked what's the story with the money and he told me I was getting no money. There was about seven others

there as well. Larry hadn't his face covered. The Paul fella, if that is his right name, hadn't his face covered and two

others hadn't either. I got a slap of a baseball bat into the back of the head from one of the fellas whose face wasn't

covered. I’d describe the fellow that hit me with the baseball bat as being in his 30s, a bit smaller than me, dark hair

going grey, square jaw. When he hit me my head went forward and Larry McCarthy pulled my hoody over my head and I

started to get an unmerciful beating. One of the things that saved me was I was wearing a bullet-proof vest. I wear it

for protection. When he pulled the hood over my head I got bounced off the ground and my face hit the ground. Larry

McCarthy stabbed me in the leg with a knife. They were all dragging out of me. Larry said,”Fuck, we're after leaving

DNA.” They were all pulling at my vest to get it off and they pulled it off me and I fell to the ground. The knife I was

stabbed with was in front of me and I picked it up and started waving it around. They all backed off me then...I told

Larry come out himself and fight me one-on-one. He told me I had some mouth…I should have said that when Larry

McCarthy first told me who he was he said “I know how you - know who you are as I was down in Cork prison with your

brother Paul.”” .

9. In answer to a question from Garda Whelan, Can you describe what you saw inside the gates of Cornmarket Villas when you went

in through the gates?, Mr. Foran replied:-

“…Larry came over to me, Larry McCarthy that is, plus he introduced himself to me, I knew him years anyway, my

sister was going out with old Dessie Dundon and they are all the one, so I knows Larry for a good few years. Larry had a

light green track suit… I was watchin Larry because he was out in the middle of the car park. He was obviously waiting

for me. He was doing his best to intimidate me because they gave me the beating.”

10. On Day 2 of the trial, in the course of his examination by prosecution counsel, Mr. Byrne BL, Mr. Foran was asked to describe fully

what had occurred on the 25th November 2014. His description was broadly consistent with the account given in both written

statements to the gardaí. Where his account differed with these statements related to his identification of the appellant. The

following exchange between Mr. Byrne and Mr. Foran proceeded as follows:-

“A. I just got in and when I got in the gate I got a chance just to barely talk to one person.

Q. Okay. And who was that person?

A. I don't know his name.

Q. You don't know his name?

A. No.

Q. Had you seen him before?

A. No.

Q. And what conversation did you have with that person?

A. Well, first like, it was, "Have you got the money?" Being honest, that's what I said. "Have you got the money?"

Q. You said to - well, describe this person that you spoke to to us?

A. Describe him?

Q. Yes?

A. He's a small bit smaller than myself.

Q. Okay. What age was he?

A. Nearly the same age. Could have been younger.

Q. Okay and could you describe his facial features?

A. Not really, no.

Q. Well, you were there?

A. I know I was there. But I - like I can't describe his facial features or anything.

Q. Well, try?

A. Try?

Q. Try and describe his face. Well, had he..

A. Probably like your face, being honest.

Q. All right?

A. Yes.

Q. Did he have a beard, a moustache, anything like that that you recall?

A. No. No.

Q. Had he long hair or short hair? Do you remember that?

A. I don't know. Being honest to you, I don't know.

Q. Just think about that now. What kind of hair had he?

A. Well, first when detectives came to my house, I told Gerry Healy he had black hair.

Q. Okay. We'll hear from Detective Garda Healy in due course?

A. Yes. And the other detective, what's his name? Gerry Hogan? Came to me and told me that Larry had red hair.

Q. Would you mind just repeating that? Who did you say?

A. I said a detective came and told me that Larry had red hair, not black hair.

Q. Larry who?

A. Larry McCarthy.

Q. This Larry McCarthy?

A. Well, I don't know this person.”

11. Shortly thereafter, Mr. Byrne, referring to the stab wound, asked Mr. Foran, “Who did that?”, to which Mr. Foran responded,

“Don't know.” They were clear inconsistencies between Mr. Foran evidence and what he had said in his statements. In his

statements, he had identified the appellant by name and by appearance and had also identified him as the person who had stabbed

him in the leg. In his statement of the 15th December 2014 Mr. Foran said that the appellant “had a light grey track suit” whereas in

evidence he had said that this man wore “a jumper and pants”. In his statement of the 27th November 2014 the man identified by Mr.

Foran as the appellant was “stocky with red hair” whereas in evidence he described the man as having black hair. In his statement of

the 10th April 2015 made through his solicitors Mr. Foran confirmed the allegations made by him against a Larry McCarthy with an

address at Tower Lodge, Crossagalla in the city of Limerick..”.

12. Faced with these inconsistencies, Mr. Byrne sought leave of the court to introduce into evidence the two statements of the 27th

November and the 15th December 2014 pursuant to s. 16 of the Criminal Justice Act 2006. Evidence was taken from three gardaí and

from Mr. Foran.

13. A lengthy and detailed ruling was made by the court permitting the admission into evidence of the said statements. The ruling of

the presiding judge, Kennedy J., was as follows:-

“This is an application by the prosecution to admit the statements of David Foran pursuant to section 16 of the Criminal

Justice Act 2006. The relevant portions of section 16 provide as follows: Section 16(1): " Where a person has been sent

forward for trial for an arrestable offence, a statement relevant to the proceedings made by a witness (in this section

referred to as 'the statement') may, with the leave of the court, be admitted in accordance with this section as

evidence of any fact mentioned in it if the witness, although available for cross-examination, (a) refuses to give

evidence, (b) denies making the statement, or (c) gives evidence which is materially inconsistent with it. (2) The

statement may be so admitted if (a) the witness confirms, or it is proved, that he or she made it, (b) the court is

satisfied (i) that direct oral evidence of the fact concerned would be admissible in the proceedings, (ii) that it was made

voluntarily, and (iii) that it is reliable, and (c) either (i) the statement was given on oath or affirmation or contains a

statutory declaration by the witness to the effect that the statement is true to the best of his or her knowledge or

belief, or (ii) the court is otherwise satisfied that when the statement was made the witness understood the

requirement to tell the truth. (3) In deciding whether the statement is reliable the court shall have regard to (a)

whether it was given on oath or affirmation or was video recorded, or (b) if paragraph (a) does not apply in relation to

the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in

support of its reliability, and shall also have regard to (i) any explanation by the witness for refusing to give evidence or

for giving evidence which is inconsistent with the statement, or (ii) where the witness denies making the statement, any

evidence given in relation to the denial. (4) The statement shall not be admitted in evidence under this section if the

court is of opinion (a) having had regard to all the circumstances, including any risk that its admission would be unfair to

the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be

so admitted, or (b) that its admission is unnecessary, having regard to other evidence given in the proceedings. (5) In

estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which

any inference can reasonably be drawn as to its accuracy or otherwise."

This application arose in circumstances where David Foran gave evidence broadly speaking in terms of his statements

until a certain point in the narrative was reached. The prosecution contend that David Foran has given evidence which is

materially inconsistent with the statements previously made by him to An Garda Síochána. We do not intend to rehearse

the evidence to any great extent save to deal with certain aspects of the evidence. In broad summary, David Foran

gave evidence that on the 14th of November 2014 he was the subject of a road traffic accident whereby he was

knocked from his bicycle by a motor cyclist. He sustained injuries as a result and was conveyed to hospital. We have

received the medical report in evidence and we heard evidence from his wife, Rachel Foran, in this and other respects.

David Foran continued in his evidence and said that the driver of the motor cycle called to his house some days later

and, in effect, sought to avoid and compromise any potential proceedings by an agreement to personally compensate

David Foran for matters arising from the road traffic accident. The evidence disclosed that Cathal Kavanagh, the driver

of the motor cycle, called to the Foran home on a number of occasions subsequent to the accident and, indeed, he was

identified by the gardaí in evidence of CCTV footage going through the garden gate of the Foran house at Grattan Court

in Limerick. Text messages and calls passed between two mobile phones, one attributed to Rachel Foran, the other

attributed to Cathal Kavanagh. Arising from these contacts, David Foran, on the 25th of November 2014 on the evidence

made his way to an area known as Cornmarket Villas. We note the content of a text message dated the 25th of

November 2014 and timed at 14:12:31 sent from the number attributed to Cathal Kavanagh to the number attributed to

Rachel Foran. The message reads as follows: "Well, man, I'm at work. My cousin is going to meet you and give you the

money. Will I give you his number?" This Court was shown CCTV footage of the 14th of November 2014 and the 25th of

November 2014. We note the time on the footage from Bridgeman's adult shop relating to the 25th of November 2014

which shows a male believed by Detective Garda Whelan to be David Foran passing that shop. Allowing for the deduction

of 35 seconds for real time, the time is circa 14:25, certainly after the time of the aforementioned text message. David

Foran gave evidence of going to Cornmarket Villas, that he saw six to seven people there, that he could not describe

any one of them, that he got a slap of a baseball bat over the head and that he was assaulted, which assault included a

stab to his left thigh. He said that he spoke to an individual but was unable to describe that person. The said that he saw

a knife on the ground in front of him, that he picked that up and walked home. He identified the knife in evidence. There

is no forensic evidence in respect thereof.

Rachel Foran said her husband arrived home on the 25th of November 2014 and fell in the door. She described his injury

and the level of blood which she noted. She said that he had his bullet proof vest in his hand and he was bearing a knife.

We have received the medical report in respect of this incident which states that he, the witness, suffered a puncture

wound to the lateral aspect of the left mid-thigh extending approximately four centimetres in depth which was closed

under local anaesthetic with a single suture.

Section 16 of the 2006 Act provides that a relevant statement of a witness may, with the leave of a Court, be admitted

as evidence of any fact mentioned in the statement. The witness must be available for cross-examination and in order

to trigger and application pursuant to section 16, the prosecution must prove the existence of one of three states of

affairs in terms of section 16 subsection (1) of the Act, specifically, 1, where the witness refuses to give evidence, 2,

the witness denies making the statement, or, 3, gives evidence which is materially inconsistent with the statement. The

prosecution in this instance seek to rely on the last matter. The statement or statements may be admitted if the

making of the statement is proven and the Court is satisfied that direct oral evidence of a fact or facts concerned are

admissible; that the statement was made voluntarily; and that the statements are reliable; and either that the

statement was given under oath or affirmation or contains a statutory declaration by the witness to the effect that the

statement is true to the best of his or her knowledge or belief or the Court is otherwise satisfied that when the

statement was made, the witness understood the requirement to tell the truth. In deciding whether the statement is

reliable, the section provides that the Court shall have regard to whether a statement was given under oath or

affirmation or was video recorded or, if not, whether by reason of the circumstances in which the statement was made,

there is other sufficient evidence in support of reliability, and shall also have regard to any explanation by the witness for

refusing to give evidence or for giving evidence which is inconsistent with the statement or, where a witness denies

making the statement, any evidence given in respect of the denial. The Act also provides in mandatory terms that the

statement shall not be admitted if, having regard to all the circumstances, including any risk of unfairness to the

accused, that in the interests of justice the statement ought not to be admitted or that such admission is unnecessary

having regard to other evidence in the proceedings.

Therefore, in order to admit a statement, the Court must be satisfied beyond reasonable doubt that the statement is

relevant, that the contents of the statement are admissible in evidence, that the statement was made by the witness,

that the witness understood the requirement to tell the truth, that the statement was made voluntarily, that it is

necessary to admit the statement, that the statement is reliable and that the witness is available for cross-examination

and that the admission of the statement would not be contrary to the interests of justice. The onus of proof rests upon

the prosecution to prove all these matters beyond reasonable doubt and it is clear that the threshold for admission is a

high one and the admission of a statement under section 16 should only be permitted as a last resort. We will deal with

each of the afore-mentioned matters.

The accused man is before this Court on two offences, both of which are arrestable offences. Two statements relevant

to the proceedings have been made by David Foran. In that regard, we are satisfied to the required standard that the

statements were made by the witness. The relevant statements are dated the 27th of November 2014 and the 15th of

December 2014. The first point to be made is that the witness accepted in evidence that he made both statements and

that each statement bears his signature. Furthermore, evidence was adduced by the prosecution, that being the

evidence of Detective Gardaí Healy and Whelan as to the making of each statement by the witness on the relevant

dates. So, not only is there acceptance by the witness as to the making of the statements and verification of his

signature, but here is also evidence of the gardaí that such statements were made and we accept this evidence beyond

reasonable doubt. The witness is available for cross-examination.

We are satisfied that the witness' evidence before this Court is in certain respects materially inconsistent in the manner

submitted by Mr Byrne on behalf of the prosecution with the content of the statements made to An Garda Síochána and

therefore section 16 is triggered. We are satisfied that direct oral evidence of the content of the statement would be

admissible in the proceedings subject to the usual rules of evidence. The potential evidence of what is alleged to have

transpired at Cornmarket Villas on the relevant date at the relevant time is central to the issue to be determined by this

Court.

We now look further to the statutory preconditions for the admission of such statements, dealing firstly with the issue of

voluntariness. On this aspect of matters, we consider the following to be apposite: 1, on the 25th of November 2014

Detective Garda Healy called to Grattan Court; 2, he gave evidence of his observations regarding the condition of David

Foran; 3, David Foran was not under arrest at the time of making either statement; 4, David Foran called to the station

on the 27th of November 2014. He was not under any compulsion to do so; 5, David Foran returned to the station on

the 15th of December 2014. Again, he was under no compulsion to do so; 6, whilst neither statement was recorded on

audio video recording, the reading over of the first statement was recorded and it is quite clear that David Foran does

no demur in any fashion from the content of that statement. We are satisfied on the evidence that there was no

suggestion of any inducement as regards either statement and have no doubt that each statement was voluntary.

We now address the issue of reliability, which appears to be the issue in respect of which the defence place the most

emphasis. Each statement contains a declaration by the witness in the usual manner, which is as follows: "I hereby

declare that this statement is true to the best of my knowledge and belief and that I make it knowing that if it is

tendered in evidence I will be liable to prosecution if I state in it anything which I know to be false or do not believe to

be true." As stated in DPP v. O'Brien and Stewart, while a statutory declaration in the above terms is not regarded by

the 2006 Act as being as clear an indicator of reliability as an oath or affirmation or video recording, nonetheless,

account can still be taken of such a declaration in addition to other matters in determining whether a statement is

reliable and we so do. We are satisfied that the statements contain the necessary statutory declaration in terms of the

Act and that the witness was fully cognisant of the requirement to tell the truth. A statement can only be admitted if a

Court is satisfied that it is reliable. The statute provides specifically that the Court shall have regard to whether the

statement was given on oath or affirmation or was video recorded or, where this does not apply, whether by reason of

the circumstances in which it was made there is other sufficient evidence in support of its reliability. The Court also shall

have regard to any explanation by the witness for giving evidence inconsistent with the statement. When the first

statement was read over to the witness, this was recorded on audio video tape. We are invited by the prosecution to

look to the witness' demeanour when this is being done. In that context, when the statement is being read over, the

witness does not seek to dispute the contents in any way. In fact, not only is this so, but at the conclusion of this

process he says, "When you were reading it out, it was like it was all happening again." This clearly indicates an

acceptance of the content of the statement and so not only does the witness acknowledge that the statement is

correct and signs the statement in this regard, but he also affirms the content by that comment. This is relevant to the

assessment of reliability. We note that the second statement was not the subject of a video recording but it is clear

that this was, of course, an additional statement which makes reference to the first statement. Again, the second

statement is signed and contains a statutory declaration and it was acknowledged by the witness as being correct and

bears his signature. In assessing the reliability of the statements we look also to the circumstances of the making of

each statement and the content of the statements, together with as an assessment as to whether there are contained

within the evidence any indicators of reliability. There are aspects of the statements which are supported, in our view,

by other evidence. In detailing certain matters, we note and take account of the submissions made by Mr White, senior

counsel, on behalf of the accused man. There are some discrepancies in the accounts given by Rachel and David Foran.

It is also so that David Foran used cannabis at the time and, according to the Detective Garda, had a drug habit and a

criminal record. We have considered all of these matters. However, we are entitled to and do take into consideration the

fact and the terms of the text messages between the aforementioned phones, the CCTV footage of the 14th of

November 2014 and the 25th of November 2014. The CCTV footage of the movements of David Foran in the aftermath

of the aforementioned text message is an indicator, in our view, of reliability in that his movements as recorded support

aspects of his statements. Furthermore, we are entitled for the purpose of the assessment of admissibility of the

statements to rely upon the evidence of Detective Garda Whelan of his purported identification of the accused man

outside Cornmarket Villas some time before the alleged incident. The weight to be given to that evidence is a different

matter for assessment ultimately by the triers of fact. We also take into account as an indicator of reliability the

evidence of Rachel Foran regarding the knife and the medical evidence regarding the injury to David Foran. We also take

into account in this assessment and for the purposes of this analysis the evidence of Detective Garda Healy regarding

David Foran's condition on the relevant date.

We have considered very carefully the submissions made by the defence in every respect. We note that the test of

reliability was considered by the Court of Criminal Appeal in DPP v. O'Brien [2010] IE CCA 103. The Court must examine

the circumstances and factors surrounding the making of the statement and, as stated in that decision, "To ensure this

is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the Court to be

satisfied that the actual content of the statement is reliable in the sense that it is true." The Court went on to say, and

as quoted in Mr McGrath's text at page 362, "If the concept of reliability is to be correctly or in part measured also by

reference to the reliability of the content of the statement or its substance, there were factors present in this trial

which indicate clearly that the content of the statement was reliable. In substance, it was supported by the very

significant medical findings and also to a certain degree by the account given by the witness' sister which was admissible

having regard to the similar facts doctrine."

In the knowledge that the burden of proof rests on the prosecution, we are satisfied beyond reasonable doubt in all the

circumstances that the statements are reliable. It is crystal clear that the evidence is necessary, given that the

evidence of David Foran as to what allegedly occurred on the relevant date is central to the issues in dispute. We have

had regard to the explanation offered by the witness for giving evidence inconsistent with his statements. He asserted in

evidence that when he mentioned the name Larry McCarthy to the gardaí, he was in fact referring to another Larry

McCarthy, that is an individual with black hair. We note in his statements which he accepts as being true on evidence,

that he not only gives the name Larry McCarthy but he also gives a description of the individual who he says stabbed

him as having red hair. There is no mention of black hair in the description given in the statements. He further asserted

in evidence that the gardaí went through a series of photographs with him in order to identify his alleged assailant. This

was denied my members of An Garda Síochána. We have carefully assessed the evidence of the witness and his

demeanour in giving this evidence and we reject his explanations. We are satisfied, therefore, beyond reasonable doubt,

that the statements are admissible pursuant to section 16 of the Criminal Justice Act 2006 and we are satisfied that to

permit the admission of these statements in terms of section 16 does not carry a risk of unfairness to the accused man

and we accede to the application by the prosecution.”

14. In submissions made to this court it is conceded on behalf of the appellant that a number of the statutory requirements for the

admission into evidence of statements pursuant to s. 16 were satisfied, including that:-

(i) the statements were relevant to the proceedings;

(ii) the appellant confirmed that he made the statements and acknowledged his signature, and that he gave evidence

that was for the most part consistent with his statements, apart from the aspect relating to his identification of the

appellant;

(iii) direct oral evidence of the inconsistency was properly admissible;

(iv) the statements were voluntary, and

(v) his statement was not recorded but was read back but its reading back to the appellant was recorded.

15. The focus of the appeal can be gleaned from the following quotation from the appellant’s written submissions to this court. They

state, at para 38:-

“The principal concern for the appellant was that the statements were not in any way reliable and the statements should be excluded

on the basis of unreliability and in the interests of justice.”

16. It is a requirement that the statement be deemed reliable. Section 16(2)(iii) provides that “the statement may be so admitted

if…the court is satisfied…that it is reliable”. Section 16(3) states:-

“In deciding whether the statement is reliable the court shall have regard to:-

(a) whether it was given on oath or affirmation or was video recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which

it was made, there is other sufficient evidence in support of its reliability”.

17. In DPP v. O’Brien [2011] 1 I.R. 273 at 294, the judgment of the Court of Criminal Appeal Stated:-

“…It seems relatively clear that the Act, in requiring that the statement be found to be "reliable" appears to mandate

the court to examine the circumstances and factors surrounding the making of the statement, to ensure this is a

reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied

that the actual content of the statement is reliable in the sense that it is true.”

18. The trial court’s ruling in relation to the application to admit the statements pursuant to s. 16 was, by any account,

comprehensive and detailed. In relation to the issue as to whether the statements were reliable the trial court noted that they

contained the necessary statutory declarations. It noted that the first statement was read over to the witness and that this process

was video taped, and that the second statement in respect of which no aspect was video taped was closely linked to the first

statement, and was, in the trial court’s view, “an additional statement which makes reference to the first statement”. It noted that

there were aspects of the statements which were supported by other evidence including evidence relating to the knife and the

injuries sustained by Mr. Foran. It noted, and quoted, an extract from McGrath on Evidence, (2nd Edition, 2014) at p. 62:-

"If the concept of reliability is to be correctly or in part measured also by reference to the reliability of the contents of

the statement or its substance, there were factors present in this trial which indicate clearly that the contents of the

statement was reliable. In substance, it was supported by the very significant medical findings and also to a certain

degree by the account given by the witnesses’ sister which was admissible having regard to the similar facts doctrine”.

19. The trial court expressed its satisfaction beyond reasonable doubt that the statements were reliable.

20. Section 16(4) provides as follows:-

“the statement shall not be admitted in evidence under this section if the court is of opinion:-

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the

accused, or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be

so admitted, or

(b) that its admission is unnecessary, having regard to other evidence given in the proceedings.”

21. In relation to (a) it is difficult to imagine any circumstances where, in the interests of justice, a refusal to admit the statements

into evidence might be justified. It is of paramount importance and very much in the interests of justice that an accused person

receives a fair trial. The fact that evidence adverse to the accused is admitted does not undermine the fairness of the trial if such

evidence is admitted with due regard to the rules of evidence and relevant statutory provisions. The admission into evidence of the

statements pursuant to s. 16 was not, in the court’s view, having regard to their voluntariness and their reliability, unfair to the

appellant. The fact that their admissions strengthened the prosecution case against him does not of itself render their introduction

unfair or contrary to the interests of justice.

22. The requirement that the statement were necessary (s. 16(4)(b) above) this court is satisfied that the trial court’s ruling in this

respect was correct, when it stated:-

“It is crystal clear that the evidence is necessary, given that the evidence of David Foran as to what allegedly occurred

on the relevant date is central to the issues in dispute.”

23. The content of the statements in this case were, to a very large extent, acknowledged on behalf of the appellant as being

truthful and correct. Their voluntariness was also acknowledged as were the signatures on the statements. The trial court had the

benefit of hearing evidence relating to the statements first hand so that its decision in relation to them must carry significant weight.

This court would, if considering this matter at first instance, and considering the relevant criteria objectively, arrive at a precisely

similar conclusion to that reached by the trial court.

24. The court is satisfied therefore that the decision to admit the statements into evidence pursuant to s. 16 of the Act of 2006 was

correct, and this ground of appeal is therefore dismissed.

25. The remaining ground of appeal is the contention that the “verdict was perverse and against the weight of the evidence”. The

extent to which an appellate court would likely intervene and quash a decision of a jury as being perverse is very limited. The

reasoning applicable to a non-jury court is no different. In DPP v. Cecil Tomkins [2012] IECCA83, the Court of Criminal Appeal stated

(at para 21):-

“..the court would be very slow to intervene where it is satisfied that a judge has placed all relevant matters before the

jury, and has fully and properly instructed them as to the burden and standard of proof. However, an appeal court may

intervene if the judge’s direction to the jury is inadequate either concerning witness credibility, or some matter of law.

This is entirely distinct however from finding fault with the verdict of the jury…this court will only quash a decision as

being perverse where there are very serious doubts about the credibility of evidence which was central to the charge,

or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence. (See DPP v. Quinn,

23 March 1998 CCA; DPP v. Morrissey, CCA 10 July 1998). In assessing this point the court will look at all the evidence

which was before the jury, not selective portions of that evidence.”

26. In this case there was no application made to the trial court at the conclusion of the prosecution case for a direction that the

prosecution evidence was insufficient or inherently weak. An objective view of the evidence heard by the court was such that it was

open to it to return a verdict of guilty in the event that it accepted as truthful particular evidence. Furthermore, had the case been

heard before a jury a verdict of guilty would not have been perverse and that observation is no less relevant because of the absence

of a jury.

27. In a decision of this court in DPP v. Nadwodny [2015] IECA 307 the jurisprudence of the former court of Criminal Appeal stated in

Tomkins was applied. In Tomkins it was emphasised that there is a high threshold to be crossed in terms of perversity and that an

appeal court should only quash a decision as being perverse where serious doubts exist about the credibility of evidence which was

central to the charge, or where a guilty verdict, even by a properly instructed jury, was against the weight of the evidence.

Moreover, in any assessment of a perversity claim, a court must look at all the evidence which was adduced in the course of the trial

and not just selected portions of it.

28. The court is therefore satisfied that the verdict of the trial court was not perverse. It was open to the trial court to reach the

verdict it did on the basis of the evidence presented to it. That ground of appeal is therefore dismissed.

Conclusion

29. As all grounds of appeal have failed, the appeal against conviction is dismissed, and the court will proceed in due course to

determine the sentence appeal.