Court of Appeal dismisses appeal against conviction for assaulting a peace officer and obstructing traffic.

THE COURT OF APPEAL

[296/16]

Birmingham P.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V. SEAMUS MURPHY

APPELLANT

JUDGMENT of the Court delivered by Birmingham P. on the 11th day of June 2018

Introduction

1. On the 5th July 2016, the appellant, Mr. Seamus Murphy, was convicted on two counts that had appeared on an indictment, that

being an offence of assaulting a Peace Officer, contrary to s. 19(1) of the Criminal Justice Public Order Act 1994 as amended by s.

185 of the Criminal Justice Act 2006, and an offence of obstruction of traffic contrary to s. 98 of the Road Traffic Act 1961.

Subsequently, on the 28th October 2016, he was sentenced to a term of three years imprisonment which was suspended in relation

to the assault offence and the traffic obstruction charge was taken into consideration

2. He has now appealed against conviction. For completeness, it should be noted that the indictment had contained four counts; the

two counts on which convictions were recorded, as well as a further count of assaulting a Peace Officer and a count of dangerous

driving. Verdicts of not guilty were returned on these counts. The assault on which a guilty verdict was returned related to that

committed against Garda Sergeant James Murphy, while a not guilty verdict was returned on a count relating to Sergeant Maria

Hayes.

3. The background to the trial, and now this appeal, is to be found in events that occurred very early in the morning, soon after

midnight, on 14th July 2013, at Garrynagran, Moygownagh, County Mayo. In essence, the prosecution case was that the appellant

was driving a tractor with a motor attached at Ballinagur. Mr. John J. Heffron and his son, Darragh Heffron, came upon the tractor. It

is alleged that the tractor, which was being driven by the appellant was being driven very slowly so as to block any attempt by the

Heffrons to pass. The prosecution case was that on a number of occasions, Mr. Seamus Murphy reversed the tractor and mower

towards the jeep in which the Heffrons were travelling. This manoeuvre resulted in the charge of dangerous driving in respect of

which a not guilty verdict was returned. Mr. Heffron made contact with Ballina Garda station, resulting in Sergeant Murphy and

Sergeant Hayes being despatched to the area.

4. The Gardaí say that they arrived at a section of roadway which was being blocked by the tractor and mower. Sergeant Hayes said

that she saw a male run into the middle of the road, but he then retreated towards the tractor when he saw a Garda car. Sergeant

Murphy called out to Mr. Murphy, but he ignored the Sergeant and instead climbed into the tractor. Sergeant Murphy approached the

tractor and Mr. Murphy threw an object at him. According to the Gardaí, Mr. Murphy then slammed the door, shattering glass over the

two Sergeants. Sergeant Murphy climbed up onto the tractor, but Mr. Murphy began to drive it, forcing the Sergeant to hang on to

the cab frame. Sergeant Hayes says that she was forced to jump out of the way of the mower. The jury heard that Sergeant Murphy

attempted to turn off the engine, but was prevented from doing this by Mr. Murphy. The prosecution alleged that at that stage, Mr.

Murphy hit, scraped and bit Sergeant Murphy a number of times.

5. Contact was made with Ballina Garda station seeking assistance. Sergeant Murphy arrested Mr. Murphy at 01.45am in relation to

dangerous driving, but the appellant continued to resist. Sergeant Murphy says that he was forced to resort to the use of pepper

spray. Efforts were made to place Mr. Murphy in the squad car, but he continued to resist. Sergeant Hayes resorted to using her ASP

baton twice. Mr. Murphy then took possession of this and attempted to hit Sergeant Hayes with it. At one stage, the two Sergeants

resorted to sitting on Mr. Murphy in order to restrain him. Soon after, a party of Gardaí arrived on the scene, and with their

assistance, Mr. Murphy was placed in a patrol car and brought to Ballina Garda station.

6. At trial, the appellant was represented by solicitor and counsel, a different legal team to those that represented him during the

appeal hearing. The trial, and in particular the relationship between prosecution and defence, might fairly have been described as

tetchy or acrimonious. By the time of the sentence hearing, the question of sentence was adjourned after verdicts were returned and

the appellant was no longer represented by the legal team that had represented him during the course of the trial.

7. A number of Grounds of Appeal have been formulated and been argued by the appellant’s new legal team. Those formulated were:

1A. That the trial judge erred in response to a question asked by the jury concerning a blue line that appeared on an expert

witness report dated 6th October 2015 which had been completed by Dr. Mark Jordan, engineer and defence witness;

1B. The judge erred when the jury asked for a copy of an updated report from Dr. William Brunker dealing with injuries sustained

by Sergeant James Murphy in circumstances where the contents of the report had been read pursuant to the provisions of s. 21

of the Criminal Justice Act 1984, and the judge declined to furnish this; (The written submissions made clear that this ground

was not being pursued.)

2. That the judge failed to discharge the jury to deal with the prejudicial remarks made by Prosecution Counsel in his closing speech

that the Appellant was “mean and petty, “the most dangerous man in North Mayo” and to “watch out if you go against him”;

3. That the judge failed to discharge the jury or otherwise deal adequately with a reply given to a question by Sergeant James

Murphy that “GSOC said ‘we did nothing wrong’”;

4. Failing to give the appellant sufficient time within which to secure the services of another legal team before concluding the case;

5. Admitted in evidence an incomplete version of an audio recording of the incident recorded by the wife of the appellant, which

recording omitted sounds consistent with the account given at trial by the appellant and his wife.

Ground 1: The Faint Blue Line

8. The defence engaged the services of Dr. Mark F. Jordan, a chartered engineer. He prepared a report which was disclosed to the

prosecution in the usual way. He then gave evidence on Day 3 of the trial. His report was exhibited, but a number of photographs

that he had taken or to which he referred were. In the course of his direct evidence, he was invited by defence counsel to comment

on a number of photographs, some taken by Ms. Murphy and some by the witness himself. He explained that Photographs 21 and 22

were aerial shots that he took of the driveway and the entrance to the Murphy homestead. Photograph 21, he said, showed the

sweep-in from the local byroad into the Murphy homestead and showed the position of the gate pillars in respect of the local road and

the distance from the local road to the homestead which was about 190 metres. Asked to comment in relation to Photograph 22, he

said it was the same except that it was the detail of the entrance and that it was essentially to show the way the road sweeps into

the entrance from Mr. Murphy’s homestead. He said that on Photograph 22, one could just about make out the gate pillars. He then

added:

“[t]here is a line in blue on that which I had marked which is the position of the tractor at the second stop.”

In the course of their deliberations, the jury asked a number of questions. One was about the blue line on Photograph 22. The marking

is faint and is not readily visible. Defence counsel, however, said “I see a blue line here”. Adding “I think Dr. Jordan did make some

reference to that”. The judge then commented “I cannot see how it would have any bearing on the evidence in the trial”. Defence

counsel said “I think they should just be told that it is a line that Dr. Jordan put on the photograph”. The judge asked “[w]ell, I don’t

know that, do I?” Defence counsel responded “I am reasonably confident that he said that he did and that’s a mark of some

significance, but I suppose the jury should just be told not to concern themselves with it”. The judge did just that. When the jury

returned to court, he addressed them as follows:

“I can answer the second one very quickly, that is in relation to the photographs . . . . Well, I understand that that’s a line Dr.

Jordan put on it, and there is no evidence as to why it is there, so there is no reference to the evidence that you have heard,

it is simply a blue line that is there.”

The Court does not appreciate the attempt at this juncture to revive what seems a non-issue. The trial judge did what he was asked

to do by defence counsel. What the judge said was not the subject of any controversy at trial. The jury could have been reminded of

what Dr. Jordan had said and it perhaps would have been preferable had this happened, but the Court does not see this as a point of

any significance. Certainly, it could not possibly provide a basis for quashing the conviction. The Court would draw attention to

Grounds 1B and 5, which, while not pressed, do not seem to have ever been grounded in the reality of the trial, but would seem to

have been formulated by people coming to the transcript late in the day. This is not a practice that is to be encouraged.

Ground 2: The Closing Speech of Prosecution Counsel

7. While this ground of appeal refers to inflammatory and highly prejudicial remarks, it must be said that the prosecution speech

generated little controversy at trial. It is true that the speech was a strong one and that counsel did make some very pointed

remarks. However, had the remarks really been seen as inflammatory, as is now suggested, one would have expected an immediate

application for a jury discharge or that the judge would intervene and take some other appropriate action. There was no such

request. Instead, defence counsel proceeded with his closing speech in the ordinary way. There was nothing in that closing speech to

suggest anything untoward to each of the individual issues that had been raised with him. The judge began his remarks by saying that

he was satisfied that the jury was capable of assessing what is and what is not language that is either unnecessary or excessive. It

is not absolutely clear whether the judge was making that remark in relation to the tone of prosecution counsel’s speech or whether

the remark related to an issue about the language used by Gardaí during the course of the roadside incident.

8. The remarks by prosecution counsel struck a slightly unusual tone. Indeed, in exchanges with the court, counsel was prepared to

accept that his tone could have been more temperate. However, what was said must be seen against a background of the way the

case had run at that stage. Counsel is entitled to comment, and indeed to comment in a robust fashion. While the remarks went

further than is usual, the Court does not believe that they demanded a response from the judge which would have involved

discharging the jury or any other specific intervention.

Ground 3: The Reference to GSOC

9. This issue arose during the course of the cross-examination of Sergeant Murphy by defence counsel. The reference to GSOC came

about during the following exchange:

“Q: Well now, throughout this struggle, it was your intention to get Mr. Murphy out of the vehicle, wasn’t it?

A. Once the tractor was stopped, it was my intention to take Mr. Murphy out of the vehicle. I had formally arrested him at that

stage and I was going to take him out of the vehicle and bring him into custody to deal with all the incidents that had occurred.

Q: And you say that he attempted to bite you on the arm?

A: That’s correct, yes.

Q: I have to suggest to you that is absolutely untrue.

A: That is the truth of the matter. Mr. Murphy just seemed to lose complete reason. He was behaving like a wild animal trapped

in a corner, and he was doing anything he could to get away from me and get me away from him.

Q: Well, you see, Mr. Murphy didn’t assault you, he struggled and he’ll say tried to protect himself from the unlawful force that

you were using on him?

A: Mr. Murphy made a formal complaint to GSOC in relation to the incident that night. It was investigated and they found

absolutely no wrongdoing on the part of An Garda Síochána.

Q: Well, that’s opinion evidence coming from someone else, so I don’t think that should be –

A: Well, I have written confirmation from GSOC that they have found that the guards did nothing wrong on the night in

question.”

10. Counsel immediately asked for the jury to withdraw and then applied for the discharge of the jury. Defence counsel protested that

the witness was giving hearsay and opinion evidence. He said that the defence case was that the Gardaí had done quite a lot wrong

on the night in question and that the jury had been contaminated by the evidence given by the witness.

11. This Court is in no doubt but that the judge was fully entitled to conclude that the response to questions by the Sergeant did not

require the discharge of the jury. The occasions where an inappropriate response to a question by a witness will result in the

discharge of a jury are likely to be very rare. It must be understood this was a rather fraught case. It is clear that the Sergeant

found the allegations of misconduct on his part difficult. His response, while inappropriate, was understandable in the circumstances.

The Court accordingly rejects this Ground of Appeal.

12. The Court has dealt with a number of Grounds of Appeal that have been advanced by the appellant’s new legal team. The

arguments made with respect of these grounds have been considered in full and found lacking. None of the issues that have been

canvassed in written or oral submissions have caused the Court to have any doubts about the fairness of the trial or the safety of

the conviction. While it has been suggested that the verdict was perverse, this Court is unable to identify any basis for that

suggestion. Despite the fact that there was much controversy about the events of the night/morning in question, there was

nonetheless considerable evidence to support the prosecution case and to allow the jury to reach the conclusion that it did.

13. The Court will therefore dismiss the appeal against conviction.