Court of Appeal dismisses appeal against conviction for assault causing harm, upholding verdict despite alleged advocacy errors.

APPROVED NO REDACTIONS NEEDED

THE COURT OF APPEAL

Neutral Citation: [2023] IECA 340

Court of Appeal Record No. 40/2012

President

McCarthy J

Donnelly J

BETWEEN/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

-AND-

NOEL O’ CONNOR

APPELLANT

JUDGMENT of the Court delivered on the 25th day of July 2023 by Mr Justice McCarthy

1. This is an appeal against conviction. Noel O’Connor, the appellant herein, came before Kilkenny Circuit Criminal Court on the 11th of October 2011 on two counts of assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act 1997 (“1997 Act”). The appellant was convicted on the 18th of October 2011 of one count in respect of one Sean Murphy and acquitted of allegedly assaulting one Iwona Niewiadomska in the same incident. Sentence was passed on the 7th of February 2012 and the appellant was sentenced to three years imprisonment suspended in its entirety upon entering a bond to keep the peace and be of good behaviour for three years and to attend at an anger management course, authorised to be taken in England.

2. The appellant had been an employee of Mr Murphy prior to the offence in question. On the date of the offence, Mr Murphy gave evidence to the effect that he was using a teleporter for the purpose of assisting an employee in the course of construction work. He was a director of a company described as Balcon Developments which was engaged in that work. He saw the appellant who was taking photographs of him. To this he took exception and he possessed himself of a lump hammer with the intention of threatening the appellant “to get the camera from him or to stop him from taking photographs”. Mr Murphy asserted that he did not intend to assault Mr O’Connor – effectively the witness’s position was that the appellant’s conduct had brought back unhappy memories of the appellant’s previous employment with Balcon Developments. He said that there was a tussle between them and in the course thereof the appellant took the lump hammer from him and struck him on the head – pointing to the crown of his head. He said that he fell to the ground as a consequence. The appellant proceeded to hit him with the hammer on the head, face and torso as well as kicking him. He described the blows with the lump hammer as being of “a very severe nature”. He said that he was reduced to a very weak state and was trying to defend himself. He gave evidence as to the assault allegedly committed on Ms Niewiadomska.

3. Mr Murphy was cross-examined at length and very thoroughly. We cannot set out that cross-examination in extenso; apparently the employee who was being assisted by Mr Murphy at the time of the incident would have had a view of what had occurred and, at the commencement of the cross-examination, the witness was pressed as to why he had not identified him to the Gardaí.

4. Every aspect of the event in question from start to finish was cross-examined upon in detail. Mr Murphy rejected the proposition that he had fallen back on the teleporter (repeating that he fell on the ground) and thereby suffered a head injury. He was pressed to accept the appellant’s version of events, in particular that he had initially struck the appellant with the lump hammer behind his left ear, that he had never been struck on the head with the hammer and that (in self-defence) he had been struck by the appellant with his fists giving rise to the fall. Mr Murphy rejected the proposition that he had been struck about the body by the appellant in the appellant’s attempt to escape Mr Murphy’s grip when they were both on the ground. He was pressed to accept that the appellant, in seeking to defend himself, had been struck in the left arm giving rise to injury. As is common in cross-examination, he was pressed as to supposed omissions or inconsistencies between his testimony and his statement (including about what he said was the engagement between the appellant and Ms Niewiadomska).

5. Mr Murphy was further cross-examined as to his relations with the appellant prior to the event with specific reference to the fact that Mr O’Connor’s employment had been terminated giving rise to a dispute which, it would appear, ran for some time. In effect it was suggested that there was an animus on the part of Mr Murphy towards the appellant. Mr Murphy was also cross-examined as to character; he had a previous conviction for assault dating from 1990 and accepted that on a previous occasion he assaulted a third party with a hammer; effectively he said that this was in self-defence, in the context, apparently, of a trespass. Mr Murphy was taxed with what was, by implication at least, an omission indicating bad faith since he did not tell the jury of a personal relationship with Ms Niewiadomska. The cross-examination sought to break down the evidence of the witness piece by piece.

6. On any view of the evidence, Mr Murphy suffered injuries during the course of the assault to his head and face and was taken to hospital shortly after the incident. A medical report about his injuries by one Ian Wilson, a surgeon, was read into evidence by consent; it was in these terms: - “Mr Sean Murphy was brought to the hospital by ambulance on the 5th of June 2008. On admission, his GCS was 15 over 15. He had a bandage on his head, which was oozing some blood, as was the right side of his face. He was complaining of pain in both sides of his chest and into his back. He was commenced on intravenous fluids and sent for some X-rays. The lacerations on his head were five or six centimetres in size and he was also noted to have haematomas on the parietal occipital region and a small deep laceration in that region also… [he had]… bruising on the ninth and tenth ribs on the left side was noted (sic). His blood pressure was initially lower than 58 over 37, but subsequently it was recorded at 124 over 61. His pulse was stable at 76 to 78 beats per minute. He was admitted the hospital for observation. X-rays of the cervical spine, chest, abdomen, pelvis and skull showed no obvious bony injuries. The laceration on his scalp was sutured with four sutures and kaltostat was applied to the abrasions in the region of his right eye. He remained stable during his hospital stay. His observations were normal. X-rays of his skull, cervical spine, chest, abdomen and pelvis, were normal. A CT scan of his head was carried out which again was normal. He was detained in hospital until the 9th of June 2008 when he was discharged to the care of his general practitioner, Dr Maher. He has not been at the hospital since. This man sustained lacerations and extensive bruising to his head and chest. He had a laceration to his head which required suturing and extensive bruising around his head, and the left side of his chest. His various injuries resolved satisfactorily, and he was discharged to the care of his general practitioner and has not been seen at the hospital since.”

7. Ms Niewiadomska’s evidence is somewhat difficult to follow as her command of English was less than perfect but it will suffice to say briefly that her core evidence was that she witnessed the assault on Mr Murphy and the fact that the appellant had possession of the lump hammer, that she intervened, securing possession of the latter and that she was beaten by the appellant with his fists ultimately causing her to fall to the ground where she was kicked – thereafter lying in the foetal position and ultimately being taken to hospital. She expressly stated in evidence that “…my face was violet and I can just tell this, I was so sore, and… my face was violet and even bigger than… I don’t know how I can say, was bigger, my… I couldn’t speak”. Ms Niewiadomska was also cross-examined extensively inter alia on the basis that the medical evidence about her did not support her account of being forcibly punched when she sought to intervene; the nature and number of blows was contested. She was, however, crossexamined as to her behaviour in the course of the event. Further reference will be made to this below. She was treated by one Frank O’Dwyer, surgeon, whose report was similarly read, and it was in these terms: - “I am the consultant in charge of the emergency department of St Luke’s Hospital, Kilkenny. I can state from records at my disposal that a Iwona Niewiadomska attended the emergency department on the 5th of June 2008 at 1930 hours. She had apparently been hit on her head and back. She was noted to be alert and orientated. She had no wounds or bruising to her face or back. She was felt to have had a minor head injury and was discharged home with a head injury advice leaflet.” Amidst all the disputed facts and the controversy raised on this appeal there is accordingly objective testimony about Ms Niewiadomska’s injury expressly to the effect that she had no signs of facial injury.

8. A Richard O’Shea gave evidence that he was parked outside a pub in Ballyragget and witnessed the appellant arriving in his van which he exited and proceeded to take a number of photographs of Mr Murphy. He stated that the appellant started hitting Mr Murphy in the face with his fist a number of times whilst Mr Murphy was still in the teleporter. In his statement to Gardaí, Mr O’Shea said that the appellant pulled Mr Murphy from the machine and began to “…hit Mr Murphy with a hammer around the head area. Mr O’Connor put the hammer as far above his head as he could, to get maximum impact. Mr O’Connor hit Mr Murphy in the head and the face area at least four times with the hammer and then he hit him on the shoulder, in the ribs, the hip and legs. All the time, Mr Murphy was trying to protect his head. Mr O’Connor was like an animal hitting Mr Murphy…”.

9. Mr O’Shea further stated that the appellant continued to hit Mr Murphy on the ground and observed that Ms Niewiadomska intervened but was shoved out of the way by the appellant and later was punched in the jaw and was “knocked out”. He stated that Ms Niewiadomska got back up again and that she picked up the lump hammer and held onto it after the alleged attack. He also gave evidence that he rang the Gardaí. He was cross-examined on the basis that neither of the alleged injured parties had given evidence that Mr Murphy was assaulted whilst he was still in the teleporter.

10. A Garda John Bolger attended at or near the scene at approximately 6.10pm where he witnessed Mr Murphy with a towel on his head with blood streaming from it. He saw Ms Niewiadomska holding her jaw and noted that she appeared to be in pain. He also identified the lump hammer which was pointed out to him, and which was exhibited at trial. Mr Murphy handed Garda Bolger the camera which had been used by Mr O’Connor; that was also exhibited. He took photographs of Mr Murphy’s injuries on the 6th of June 2008 in the hospital and these were also exhibited; Mr Murphy had been in hospital for a period, obviously due to his injuries. On the 7th of June 2008 Garda Bolger met with Ms Niewiadomska and took photographs of her injuries, similarly exhibited. The only admissible evidence which he might have been in a position to give in relation to injuries was that actually given, namely, evidence of the injuries which he saw and to the effect that he took photographs, which were produced in evidence, and from which the physical state of the complainants when they were taken was clear. Whatever else, accordingly, no criticism could possibly be made of counsel on any view by virtue of the fact that she did not attempt to elicit inadmissible evidence about a medical issue from this witness.

11. Mr O’Connor gave evidence in his own defence. He said that at approximately 5pm he saw Mr Murphy in a teleporter, took his camera from the van and began photographing what he believed were breaches of health and safety regulations. He stated that he did not speak to Mr Murphy and he was in the process of winding the camera on when he felt pain on the side of his head. He opened his eyes and saw Mr Murphy hitting him with a hammer. He tried to run away but Mr Murphy held him. He tried to take the hammer but did not succeed initially. He stated that he hit Mr Murphy in the face but could not recall how many times and that in the course of the struggle, he pushed Mr Murphy and they both “kept going back” – Mr Murphy hit his back and head on the door of the teleporter in consequence. The defence contended this was the cause of Mr Murphy’s head injury. It was at that stage that Mr O’Connor stated he took the hammer from Mr Murphy. He stated that he got away by hitting Mr Murphy on his body/chest area with the lump hammer. He stated that he did not hit him on the head. He threw the hammer to the right and turned to leave when Ms Niewiadomska started shouting and pointing her finger at him. He stated that she kicked him in the leg, and when he backed away, she followed. She stated that she was going to hit him with the hammer and he asked her to drop it and walk away. He could see out of the corner of his eye that the hammer was being raised so he turned around and hit her with an open hand into the face. She fell and he walked away. He denied kicking Ms Niewiadomska. He stated that he had bruising to his arm and leg as a consequence of seeking to defend himself from Mr Murphy. Photographs of the same were exhibited. In circumstances where questions of pre-trial competence arise, it is necessary, by definition, to look at what was then available to solicitor and counsel for the purpose of considering the proofs and which we must now do.

12. In the book of evidence in his statement of proposed evidence Mr Murphy said inter alia that: - “He burst me with the lump hammer and knocked me over on to the ground. I think the first blow was to the face but I’m not sure. When I was on the ground, he gave me a second blow to the top of my head using the lump hammer with a full man sized blow. I was lying on my back and he was standing over me. With that, he hit me a number of blows in the ribs and head with the hammer and kicks as well…”

and in a second statement of proposed evidence, he referred to the fact that: - “…When [Mr O’Connor] had me on the ground hitting me with lump hammer…”

13. Ms Niewiadomska in her first statement of proposed evidence said that: - “…Sean tried to block the punches and turn but this man was too strong. I don’t know how it happened but this man got a hammer. Sean is on the street bent over with his hands to his head and this man hit him with the hammer. He hit him on the back and in the head a few times. He swung the hammer over his head each time and kept hitting Sean. It was like in the kitchen, hitting beef…”

14. Mr O’Shea’s statement of proposed evidence was in similar terms to the evidence which he gave at trial and in particular the passage quoted above, with this, perhaps significant, addition: when he referred to the fact that the appellant “put the hammer as far above his head as he could” he said he did so “to get maximum impact”.

Grounds of Appeal

15. Written submissions were originally filed on behalf of the appellant in December 2015 pertaining to the original grounds of appeal; we refer to the decision of this Court disposing of the appeal then before us (DPP v O’Connor [2016] IECA 101). Further submissions provided on the 2nd of March 2020 dealt with grounds (f) to (i) which relate to the adequacy and effectiveness of the legal representation provided to the appellant. At this point, only grounds

(f) to (h) are live grounds and we refer to them alone, as follows: -

(f) That the Appellant was not effectively represented at trial in that there was a failure to obtain an independent medical report in advance of the trial of the matter with a view to assessing the injuries sustained by the first injured party in light of the detail and extent of the assault alleged.

(g) That the infirmity which is submitted to have arisen as a result of Ground 1 was exacerbated by the failure on the part of the Appellant’s Legal Representatives to crossexamine either the first injured party or the Prosecuting Member in relation to the injuries sustained by the injured party in light of the detail and extent of the assault alleged and further by the consent on the part of the part of the Appellant’s Legal Representatives to the medical evidence being read into evidence in accordance with Section 21 of the Criminal Justice Act, 1984 and further.

(h) That the infirmity which is submitted to have arisen as a result of Ground 1 was further exacerbated by the failure on the part of the Appellant’s Legal Representatives to draw the Jury’s attention in the closing speech to the potential irreconcilability between the injuries sustained by the first injured party as against the detail and extent of the assault alleged.

16. The leading authority on the issues raised by these grounds is now The People (at the suit of the DPP) v Shaughnessey [2021] 3 IR 444 in which the Supreme Court addressed inter alia the question of the standard to be set for allowing an appeal on the basis of incompetent representation, which is the basis of this appeal. Whilst the thrust of the decision concerns representation in court, reference was also made to work in preparation for the trial. Similar principles apply to questions of competence in respect of pre-trial work. In principle, pre-trial work will of course be undertaken by both solicitor and counsel, and insofar as we deal here with the first ground, relating as it does to pre-trial work, what we say as to the applicable principles pertains, and we speak generally, to both branches of the profession. A solicitor who properly briefs counsel will, in general, be entitled to rely on counsel’s advice if it is sought, of course.

17. Having referred to the level of legal representation available in this jurisdiction, Charleton J pointed out in Shaughnessey that a complaint about representation “…necessarily imposes on an accused a serious burden of establishing incompetence in a legal team supplied…”. He went on to refer to the fact that in Rondel v Worsley [1961] 1 AC 191 there was “…a principled recognition of the perils of pleading in court, [and it was] suggested that advocates were immune from liability for negligence in court but not in preparatory or advisory work…” He pointed out that what “is required on appeal is an overall analysis of the case on the entirety of the evidence”. He held that “incompetence must be specifically identified in what is a wholly exceptional jurisdiction” as per R v Clinton [1993] 1 WLR 1181.

18. Charleton J (dealing with advocacy during the trial) went on to say (at para 34) that: - “There is a standard to be met: that of a reasonable advocate in a criminal trial. There is the burden which the accused must discharge: to show that the relevant conduct was misconduct outside the range of what any competent advocate would engage in; and that the defence of the accused was conducted with such a degree of incompetence or disregard of the accused's interests as to create a serious risk of a miscarriage of justice.”

19. As to pre-trial work, Charleton J referred with approval to the judgment of Keane CJ in DPP v McDonagh [2001] 3 IR 411 in which the latter in turn referred to the judgment of Murray J, as he then was, on an earlier interlocutory application in the same case. Murray J had said that “the conduct of a trial, including steps taken preliminary to the trial by an accused’s legal advisers could, in exceptional circumstances, give rise to a ground of appeal”. Keane CJ found that this view was consistent with the requirements of Article 38.1 of the Constitution that no person is to be tried on any criminal charge “save in due course of law”. Keane CJ continued (at page 425) that: - “A criminal trial in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in “due course of law.” That would apply as much to steps taken by the accused's legal advisers prior to the trial as it would to the conduct of the trial itself.”

He went on to say, however: -

“That is not to say, however, that what might properly be regarded as an error by the accused’s legal advisers is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial…”

and quoted with approval from the English decision of R v Clinton as follows: - “It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged inaptitude, but rather to seek to assess its effect on the trial and verdict.” [Our emphasis]

20. Charleton J then went on to refer, again with approval, to what was said by Macken J in People (DPP) v Doherty, Court of Criminal Appeal, unreported, 26 February 2009, (para 35) that: - “[He who alleges incompetence of representation at trial] where incompetence is alleged to have resulted in a conviction, a court should sensibly look at the basis for the complaint made and its contended effect on the trial. An appeal should scrutinise whether the decisions made or the conduct complained of were proper and reasonable and were for the benefit of the accused person’s defence and whether the conduct was open to criticism and that it might have had an adverse effect on the result of the trial.”

Later in the judgment, Charleton J went on to summarise the relevant rule (para 51) thus: - “The accused who alleges incompetence of representation at trial denying him or her a trial in due course of law bears a heavy burden of proof. To reiterate: in our legally aided system, with a free choice of lawyers, it is to be assumed that legal representation at trial is of at least a competent standard. That is what is expected; and a contrary case must be demonstrated by the accused. At a preliminary level, such an allegation must raise a serious issue. What is concerned must be more than a hindsight reanalysis of how perfection of approach might have improved on competence. Criminal trials are full of ups and downs. A point must be identified which potentially demonstrates how a trial went wrong because of some serious want of competence. To use the words of Keane CJ [in] The People (DPP) v McDonagh (2001)

3 IR 411 at 425, the papers lodged must demonstrate at least the potential for demonstrating ‘such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice’. There is no necessity to proceed further than a consideration of whatever papers are lodged if it is clear that no realistic case has been made out by an accused that there was incompetence of this level. On analysis by an appellate court, if there is no such realistic case, the application should go no further.” [Our emphasis] and (at para 53): - “If a credible case is made out, an appellate court should analyse in the light of the evidence at the trial whether the appellant has made out a sufficient case whereby it may realistically be ruled that the level of incompetence was such that thereby the accused was denied a trial in due course of law. If not, the conviction stands.”

Charleton J also said (at para 42) that: -

“…The test for improper representation is that which so undermines the trial that it is no longer one in due course of law, as the Constitution at Article 38.1 requires. Any alleged misconduct or incompetence must, consequently, be of substance. The test cannot be: would a different approach have made a difference? If that were so, many trials would become suspect. And unnecessarily so since all trials have high and low points for both the prosecution and defence, many better approaches or questions might be summoned up in more tranquil circumstances outside the forensic contest and, furthermore, it should be recalled that insignificant errors or wrong approaches tend to balance with their opposite.”

21. As appears from our judgment on the 18th of March 2016 an application permitting the appellant to introduce “fresh evidence” for the purpose of an appeal (in which the question of competence was not raised) – being that of a Professor Busuttil (a forensic medical specialist and pathologist) as well as Ms Orla Sower and Dr Duncan Woods (both of whom might be characterised as forensic scientists) – was ultimately rejected. This Court held: - “Insofar as Prof. Bustell (sic) has now expressed views as to the nature of the wounds that were to be expected and the nature of the wounds that actually resulted, there was nothing whatever to prevent evidence of that nature being put before a trial.”

22. When considering whether or not to admit this new evidence, this Court had applied the principles adopted by the Supreme Court in The People (DPP) v O’Regan [2007] 3 IR 805. We now have the benefit of the judgment of the Supreme Court in Shaughnessey in addressing the issue of admissibility. In Shaughnessey, which of course was decided subsequently, Charleton J, addressing the issue of admissibility of evidence on an appeal based on supposed incompetent representation, said that the appropriate test for admissibility of evidence is not that set out in O’Regan. We understand it to be the case that evidence supposedly showing incompetence should be received and considered in the context the evidence before the trial court and the way in which the case was run or developed. A somewhat more nuanced rule must in our view apply when dealing with alleged incompetence in pre-trial preparation, which we seek to address below. There, an appeal from this Court was allowed in proceedings seeking to quash the verdict because of incompetent representation; the Supreme Court held that this Court proceeded on an erroneous basis in respect of the receipt of evidence and it is now before this Court again to decide the merits of the appeal in accordance with the principles elaborated by the Supreme Court.

23. Whilst the issue was not expressly argued, since the main hearing herein was prior to Shaughnessey, it is implicit in the grounds of appeal that regard must be had to Professor Busuttil’s evidence, a course now open to us. We think that it is legitimate accordingly to do so.

24. Professor Busuttil’s report firstly considered a number of findings in regard to the head injury of the victim, Mr Murphy, who sustained “No features of cerebral concussion – due to injury to the brain - such as double vision, loss of consciousness, nausea and vomiting, etc. were recorded”. In respect of lacerations, Professor Busuttil concluded that the wound on the victim’s scalp was a “linear laceration involving the whole scalp thickness”. Professor Busuttil stated that a “laceration can also be produced either by blows with blunt objects or by falls against edged solid objects”.

25. Professor Busuttil reached a number of conclusions. Firstly, he concluded that, owing to the regular and linear composition of the laceration, that it “…would have had to be produced by a single direct forceful contact with a linear edge of a hard unyielding surface or object and presumably the door of the teleporter had such a configuration”. He also considered that the “absence of any bruising or swelling around [the wound] suggests that although the contact with the solid edge was forceful, it was one contact only and not one of a very marked force”. Professor Busuttil added that a blow or blows arising from the use of a lump hammer “…would have not just cut through the skin but would also have been expected to have squashed and bruised the top of the head as the solid bones of the skull would have produced a hard surface acting as a solid back wall and anvil-like arrangement on to which the scalp would have been stretched by the weight of the hammer”. He said, “It is also the case that a blow with such a hammer is very likely to have produced a collection of blood beneath the scalp – a local subcutaneous haematoma with local swelling and local ‘lump’ developing acutely”. Finally, Professor Busuttil estimated that given the weight of the head of such a hammer, “underlying skull bones would have been damaged to some extent and indeed even fractured” or indeed, inflicted damage “the least of which would have been manifested with resultant [cerebral] concussion”.

26. In addition, Professor Busuttil supplemented his views after his first report by reference to the evidence of Mr O’Shea; the relevant findings (we summarise) were as follows: - “The impact of a series of such forceful blows, which from the description given appear, to have had a quite significant momentum to them, would be strongly likely to have impacted on the head and hand of Mr Murphy with considerable force… one would have expected, almost invariably, to have been serious irregular and deep cuts – lacerations – of the scalp and elsewhere where the hammer has hit, with free partially attached flaps of skin forming at the edges.

…

If the hands of this man were being used as a covering shield in an attempt to protect the head at the time, the fingers being spread out over the scalp, they would have also been directly impacted on by the hammer and borne the brunt of these blows.” Furthermore, Professor Busuttil commented that blood would have been emanating from the head and hand wounds after such an attack and by virtue of the fact that the scalp is “intrinsically very vascular” the blood loss would have been significant. It would have been “expected to have given rise to so called acute surgical or haemorrhagic shock” and even a high possibility of requiring a blood transfusion.

27. We should refer briefly to Dr Woods and his associate Ms Sower. Dr Woods undertook forensic analysis of the lump hammer by reference to the images of the injuries to the skull but it appears that nothing of real evidential value emerged. A report was also furnished by Ms Sower who, having examined the lump hammer concluded that in the absence of “blood stains, skin debris or hair”, there is “no specific evidence to support the allegation that it had been used to strike Mr Murphy’s head” but ultimately concluded that “the findings are, in effect, neutral”. The evidence of neither expert can be said to have had any significance one way or the other and are not opinions which in our view could have bearing on the case; certainly, we cannot see that any fault could have been attributed to the appellant’s representatives because they did not go so far as to seek such reports. The real focus of this appeal must be the medical evidence and we take the view, whatever else, there was no basis for saying that such an expert ought to have been retained prior to trial.

Ground 1: (f) That the Appellant was not effectively represented at trial in that there was a failure to obtain an independent medical report in advance of the trial of the matter with a view to assessing the injuries sustained by the first injured party in light of the detail and extent of the assault alleged.

28. Having regard to the extent and detail of the assault “as documented” compared with the injuries sustained by Mr Murphy, counsel submit that the issue of the (alleged) “irreconcilability” between the two was necessarily to the fore. It is submitted that the procurement of an independent medical report to assess the injuries sustained in light of the level of violence alleged had the potential to “fundamentally undermine the account” provided by Mr Murphy. This is because the injuries were arguably less serious or different in their scope to those which might follow if they were inflicted in the manner alleged and in any event that such injury as was found was consistent with or attributable to a fall against the teleporter (or at least that there was a reasonable possibility that this was so), and not a blow to the head. These issues went to credibility in our view and not to whether or not “harm” within the meaning of the 1997 Act occurred.

29. It is submitted that this prospect must have appeared before trial from the papers and should have triggered the procurement of a medical report so that the defence could engage with the evidence. Counsel argued, under this head, that the appellant could not effectively engage with Mr Wilson’s evidence or potentially with the account of events as provided by the complainant and witnesses for the prosecution (in its absence). It is submitted that the party’s legal advisors ought not to have agreed to the reading of Mr Wilson’s report into evidence. Mr O’Connor deposes in his affidavit of the 10th of December 2019 that: - “I say that I instructed my Legal Representatives in advance of the trial and in preparation for saying that I had acted in self-defence and that while I did strike the other party, I did not hit him around the head or face with the hammer as was alleged.

I say that I gave evidence at the trial of the matter accepting that I struck the injured party in self-defence but that that I did not strike him around the face or head with the hammer.”

30. A number of submissions which, in truth, apply to all grounds, are advanced by the parties. Counsel for the appellant contend that what they say is “the potential irreconcilability between the injuries sustained in light of the nature of the assault is of such importance as to necessarily give rise to a very real prospect that the omission in this regard had a material effect on the jury’s deliberations and verdict”. Furthermore, they say that this proposition is supported by the fact that a verdict of not guilty was returned in relation to the alleged assault on Ms Niewiadomska in circumstances in which “the jury’s attention was drawn at length to the absence of injuries sustained by her which would have been consistent with the assault recounted”.

31. Counsel for the respondent argue that this was a case in which the injured party and the independent witnesses to the incident were cross-examined thoroughly. They assert that the defence case at all times was one of self-defence and that any and all injuries caused to Mr Murphy’s head were caused by his hitting his head off the teleporter and/or punches inflicted by the appellant using his hands rather than the lump hammer. The respondent argues that as such the appellant errs in focusing on the injury to Mr Murphy’s head that required stitches and has ignored the small but deep laceration to the side of his head and the abrasions in the region of his right eye, which also goes to the question of justifiable force. The respondent submits that these injuries are significant in the context of the assault described by Mr Murphy in his statement of evidence as well as his evidence at trial.

32. The respondent also submits that it is the role of the jury to make findings of fact based on the totality of the evidence it receives, whether in oral testimony or statements read into evidence. The respondent argues that the matters raised in relation to the medical evidence issue would have required civilian or non-medical witnesses and thereafter the jury to speculate on what should or should not have been the case in terms of injury to Mr Murphy. In the case of a medical witness, be it Mr Murphy’s treating consultant or any consultant engaged to conduct an independent assessment of the injuries sustained in light of the detail and extent of the assault alleged, the respondent submits that any such evidence could likely trespass on the function of the jury to make findings of fact based on the evidence. We do not think that any issue on this appeal undermines the role of the jury. We will not refer further, accordingly, to this submission.

33. In considering whether or not to retain an expert, such as a doctor, and obtain a report accordingly, a party’s representatives will first consider the book of evidence (and any related material furnished by the prosecution in virtue of its duty of disclosure), the instructions of their client and any material obtained from third parties (including any witness statements made). Accused persons’ representatives in a case involving an assault causing harm contrary to section 3 of the 1997 Act will first consider the free-standing issue of whether or not the injuries alleged amount to “harm” within the meaning of that Act. The prosecution must prove harm to make out the charge; the level of harm is defined as meaning “harm to body or mind and includes pain and unconsciousness” [as per section 1(1) of the 1997 Act]. This is a straightforward matter and there is no doubt that in the present case, the injuries suffered, on any view, fall within the definition. No sensible person in such a case, as here, and without more, would suggest a medical expert ought to be obtained by the defence. Prima facie, solicitor and counsel were entitled to proceed on the basis that a report about the injuries was unnecessary. This was a legitimate starting point by competent solicitor and counsel.

34. Such representatives using their experience and applying their common sense will have to decide when preparing for trial whether or not, exceptionally, it will be necessary to retain an expert and obtain a report even where there is no doubt about “harm”. Here, Mr Wilson said nothing as to the history of the events causing Mr Murphy to be under his care. Nor was an opinion expressed as to the possible cause of the injuries, or, as one sees from time to time, an opinion as to whether or not the injuries found were consistent with any particular version of events. Mr Murphy had suffered an injury to his head, regardless of the details. As a matter of common sense, it is obvious that more severe injuries to those set out in Mr Wilson’s report would have been suffered by Mr Murphy on the evidence actually given (or having regard to what was said pre-trial). Mr Murphy’s evidence did not go as far as his statement. As a matter of common sense, the medical evidence undermined the prosecution evidence as to the frequency, strength, or nature of the blows. It was not inconsistent with the attribution of the head injury to a fall against a teleporter. It did not clearly support the idea that there were repeated blows and certainly not of a severe nature. From the perspective of counsel and solicitor for the appellant, one might be legitimately content that the report was in no sense harmful and indeed was in a number of respects capable of being seen as favourable since it was at variance with the prosecution case as to how the injuries were suffered.

35. Certainly, the evidence of Professor Busuttil might have strengthened the appellant’s case as to what occurred and goes to credibility by reference to causation. With one potential exception the potential evidence of Professor Busuttil did not add to what was merely a matter of common sense obvious to all. This exception relates to the issue of whether or not the head wound was consistent with the contention that Mr Murphy fell against the door of the teleporter

– certainly of some relevance but not in our view of sufficient significance to give rise to a

conclusion of fault either on its own or with the remaining potential evidence. The evidence would not of course have undermined or contradicted Mr Wilson’s report in any way. As we know, even if it was an erroneous decision (we do not hold it to be so), it does not necessarily fail to meet the standard required or give rise to the exercise of the exceptional jurisdiction which arises (a point, needless to say, relevant to all grounds).

36. Each case must be decided on its own merits. Here, we think that Mr O’Connor has not discharged the burden of showing that the conduct of the defence, in omitting to retain a medical expert such as Professor Busuttil and obtain a report was “…[alleged] misconduct [even if it was misconduct] outside the range of any competent advocate…would engage in” nor “…the defence of the accused… conducted which such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice”. We think it right to refer again to Charleton J’s observation that: “…what is concerned must be more than a hindsight reanalysis but how on perfection of approach might have improved on competence”. That is what is being done here.

37. We accordingly reject this ground of appeal.

Ground 2: (g) That the infirmity which is submitted to have arisen as a result of Ground 1 was exacerbated by the failure on the part of the Appellant’s Legal Representatives to crossexamine either the first injured party or the Prosecuting Member in relation to the injuries sustained by the injured party in light of the detail and extent of the assault alleged and further by the consent on the part of the part of the Appellant’s Legal Representatives to the medical evidence being read into evidence in accordance with Section 21 of the Criminal Justice Act, 1984 and further.

38. In respect of this ground, counsel for the appellant argues that in cross-examination there was no adequate inquisition of a relevant witness or witnesses as to the potential irreconcilability between the type and level of violent assault detailed in evidence and the injuries sustained by Mr Murphy. In particular, it is submitted in effect that this fundamental line of enquiry was not mentioned, still less properly pursued. Counsel contend that this can be contrasted with the cross-examination of Mr Murphy in relation to the alleged assault on his partner, Ms Niewiadomska, by reference to the injuries sustained by her, and may further also be contrasted with the cross-examination of Ms Niewiadomska herself on the detail of the alleged assault on her in light of her injuries. In effect, it is suggested that the cross-examination of each was quite different in that, contrary to the approach taken with respect to the injuries allegedly suffered by Ms Niewiadomska, nothing similar was done with respect to those of Mr Murphy. For the purpose of stressing the deficiency, a portion of Mr Murphy’s crossexamination in relation to the alleged assault on Ms Niewiadomska is quoted and it is as follows: - “Q: You say that she was struck into the face with a lump hammer, Mr Murphy; is that your sworn testimony? A: Well, I would imagine so, yes. Q: Yes. No, are you imagining it or are you saying it? A: I’m saying it, yes. Q: Yes. It would be a serious thing to be struck in the face with a lump hammer wouldn’t it? A: Yes, it would. Yes, well, it was a serious situation.

…

Q: You would expect serious signs of injury on a person who got the belt of a lump hammer into the face? A: Yes. Q: Do you accept that? A: Yes. [Counsel for the prosecution]: That’s not a proper question. Q: Would you be surprised, Mr Murphy --?

A: But she --Iwona thought her jaw was broken, but, as X-rays proved afterwards, her jaw wasn’t broken. Q: There’s going to be medical evidence in this case, Mr Murphy. Would you be surprised if the medical evidence in respect of Iwona -- is that the name? A: Iwona, Yes. Q: Iwona -- indicated that when she was assessed in the accident and emergency department of St. Luke’s Hospital after this incident that there were no signs of bruising or lacerations to her face. Are you surprised at that? A: Well, I know it -- she wasn’t -- it wasn’t broken, yes. Q: No, no. Mr Murphy, can you listen carefully to the question. You have given sworn testimony to this jury that Iwona received a blow of a lump hammer to the face? A: Yes. Q: And I’m asking you would you be surprised if medical assessment of that lady hours after this incident revealed an absence of bruising or lacerations to her face? A: Well, I would be surprised, but of course that’s the evidence, yes.

…

Q: Can I ask you, Mr Murphy, would you expect if what you are contending for, in terms of kick of Iwona to the back of the ribs, that there might be some bruising or indication of injury in the area?

JUDGE: I think you have already put this to --

Q: To a different question. I asked him in respect of the lump hammer to the face, Judge. Would you expect bruising or evidence of injury to those areas if your version was correct and true, Mr Murphy? [Counsel for the prosecution]: Same objection to the last question, I don’t think it’s the proper question for this witness to answer.

Judge: Yes, I would agree with you. I think it’s a more medical question. Q: Yes. Well, I think I’ll be criticised if I don’t put to the witness that there will be medical evidence in this case. And there is no suggestion of any injury to the areas in which you claim this lady to have been kicked whilst she was on the ground, Mr Murphy, does that surprise you? A: Well, I wouldn’t have an awful lot of medical expertise so I find it hard to answer that question. Q: I see? A: One way or the other. Q: Yes. Well, the jury no doubt brings its own experience of the world to bear. And you suggested, I think, that she was kicked, as I say, whilst on the ground and that she was knocked into the face with a lump hammer? A: Yes.

39. It seems to us quite clear that many of these questions asked of Mr Murphy by defence counsel about Ms Niewiadomska’s injuries elicited inadmissible evidence. Even if we are wrong in this, the medical evidence pertaining to Mr Murphy’s injuries was there and spoke for itself; cross-examination would have added little. Indeed, his answer to one of the questions encapsulates the difficulty: “well, I wouldn’t have an awful lot of medical expertise. So, I find it hard to answer the question”. Questions in cross-examination are for the purpose of eliciting facts and not comment or opinion and there can be no basis for a complaint that counsel did not similarly cross-examine in relation to Mr Murphy’s injuries when she was not entitled to do so. In any event, questions calling for comment or opinion other than in the case of experts are not legitimate however common it is for counsel to cross-examine in this way.

40. In respect of the cross-examination of Ms Niewiadomska in relation to the alleged assault on her and her injuries, counsel for the appellant highlighted the following excerpt: - “Q: Yes. There were no marks or wounds observed on your face at St. Luke’s Hospital; do you accept that to be the case?

A: No marks? What, what do you mean? I had --

Q: No bruising and no cuts to your face?

…

A: Do you know it was – No, it is not true. I -- maybe I didn’t have the scratch at my face, but my face was violent and I can just tell this, I was so sore, and I had the -- my face was violet and even bigger than -- I don’t know how I can say, was bigger, my -- I couldn’t speak and -- Q: And there was no sign of any bruising or wounds to your back at the hospital; Ms Niewiadomska; isn’t that right?

…

Q: So, if there is medical evidence in this case that there were no signs of injury to your face or back in St. Luke’s Hospital, that evidence is wrong; is that right Ms Niewiadomska?” These questions were perfectly legitimate – they merely sought to elicit facts as to the injuries and not otherwise. Mr Murphy had been cross-examined inter alia in respect of relevant factual matters. On any view, accordingly, no criticism could possibly arise under this head.

41. There is one overwhelming fact about the charge concerning Ms Niewiadomska; there was no evidence of injury (“she had no wounds or bruising to her face or back”). It is not surprising that there was an acquittal on the charge concerning her. Nor do we think that, just because a different approach was taken with respect to the two charges the fact of the acquittal on one and the conviction on another, in the face of such difference, can be of assistance. No one would suggest that because there was no evidence of such injuries, one would retain a doctor to report on whether or not she had been assaulted as she alleged. One would expect to find them; it was a matter of common sense. We do not think that because counsel was permitted to ask these questions (seeking to elicit inadmissible evidence) about Ms Niewiadomska’s injuries, it could form a basis for criticism of her because she did not, similarly, adopt this approach with respect to Mr Murphy’s injuries. At the risk of repetition, the injuries spoke for themselves. Even if similar questions had been asked, they could have added nothing.

42. Counsel for the appellant also stressed that Garda Bolger, the prosecuting member, was not asked any questions in relation to Mr Murphy’s injuries and this is something which may be contrasted with the situation in relation to Ms Niewiadomska. The Garda evidence as to the injuries was necessarily limited. Garda Bolger gave evidence as to what he saw and also produced photographs which spoke for themselves. We assume it is not suggested here that he should have been asked to comment or give an expert opinion. There is little or no significant difference between the way he was dealt with in respect of Ms Niewiadomska and Mr Murphy. Garda Bolger gave evidence as to what he saw in respect of each describing Mr Murphy, as having a “towel on his head and blood streaming from [it]”. He also gave evidence of what he attempted to do to assist him with respect to the bleeding as well as the use of the towel pending the arrival of the ambulance; in respect of Ms Niewiadomska, she was described as “holding her jaw in pain”. The photographs were self-explanatory – they were taken the next day, although he was asked to describe what he saw, also. There is nothing more to be said.

43. The medical evidence in relation to both complainants ought not, it is said, to have been read, but rather the witnesses ought to have been called. Counsel for the appellant contend that the book of evidence necessarily gives rise to this issue, being a particularly relevant matter for the trial of the allegations, and that it was incumbent upon the defence to ensure that the medical evidence was the subject of particular emphasis before the jury. This, they argue, exacerbated the lack of an independent medical assessment and gave rise to inadequate legal representation at the appellant’s trial; we cannot see how this could be open to criticism. The decision to agree to the admission of the statements of the doctors was a legitimate judgement call in the course of the trial. Professor Busuttil’s report (and prospective evidence) would not have afforded a basis for undermining or criticising Mr Wilson’s evidence; at most, it would have afforded a footing for seeking to cross-examine out of him evidence which agreed with Professor Busuttil. There is no reason to suppose that a jury would not have given appropriate weight to it just because the “live witness” was not before them. We are not persuaded that the absence of a medical report inhibited engagement with Mr Wilson.

44. We therefore reject this ground of appeal.

Ground 3: (h) That the infirmity which is submitted to have arisen as a result of Ground 1 was further exacerbated by the failure on the part of the Appellant’s Legal Representatives to draw the Jury’s attention in the closing speech to the potential irreconcilability between the injuries sustained by the first injured party as against the detail and extent of the assault alleged.

45. In respect of this ground, counsel for the appellant highlight aspects of defence counsel’s closing speech which took place on Day 5 of the trial with specific reference to the following excerpts: - “Now, without more your consideration of where the truth lay in that regard will probably come down to an assessment of Noel O’Connor versus Sean Murphy. And I would suggest to you that any such assessment, even on the oral evidence, would have to be in favour of Noel O’Connor. Mr Murphy has form in respect of the use of the hammer and I would suggest to you that he is part of a very small proportion of the population in this regard. There is no suggestion that Noel O’Connor had any such form or history in this case. But we are fortunate that you don’t have to base your deliberations in that regard exclusively on the oral testimony, because there’s an item of real evidence… the photograph that you were given… clearly indicates on the inner aspect of the gentleman’s arm substantial bruising. Isn’t that entirely consistent with a protection of the head from blunt force? It is, I suggest to you, clearly a defensive injury. How else would you sustain an injury on the inside of your left arm? I asked Sean Murphy did he say that my client did or could have sustained any injuries in the course of the event as Sean Murphy alleges they occurred, and Sean Murphy said, no, he couldn’t have sustained injuries on his version of events. But there is the proof, ladies and gentlemen, and that proof is entirely consistent with what Mr O’Connor says happened on that occasion.

…

Now my Client was asked by [counsel for the prosecution] ‘Do you know what happened to Mr Murphy’s head?’ And his answer was, ‘No’. He can’t know, ladies and gentlemen, because he didn’t inflict the injury. What he does know is that he didn’t use the lump hammer on the head of Mr Murphy. And what he does know is that Mr Murphy struck his head as he fell backwards. Now Mr Murphy denies that to be the case.

…

What he knows certainly is that he did not strike that gentleman with the lump hammer into the head. He struck him on the body, and he struck him to try and get away… He tried to get away and eventually was forced to punch his way forward to try and get some relief from the hammer. The gentleman fell forward and there were injuries to Mr Murphy’s eyes and my Client doesn’t deny that he’s responsible for those injuries. They fell backwards at that point in time, and whilst on the ground Mr O’Connor finally got hold of the lump hammer and he struck Mr Murphy around the body to try and get free. Mr Wilson’s medical report on Mr Murphy confirms the fact of bruising to the chest. There it is in black and white and it has been read out to you, and I say that that is also consistent with what Mr O’Connor has said to you.”

46. Counsel for the appellant emphasise the apparent failure, by reference to that extract, to explicitly suggest to the jury that injuries sustained by Mr Murphy are not consistent with the assault alleged and may be contrasted with the approach taken in relation to Ms Niewiadomska. In that regard Counsel for the appellant addressed the jury as follows: - “She says that she sustained 10 forceful blows to the face from my client. Now, you’ve seen what blows to the face from my client do on the face of Sean Murphy. He admits that. She went to St. Luke’s hospital after these events and a report has been prepared by Mr Frank O’Dwyer -- he’s a consultant in emergency medicine at St. Luke’s Hospital. And he said, ‘She had no wounds or bruising to her face or back.’ No wounds or bruising to her face or back. Any my client accepts that he, at least, used an open hand into her face. That admits of the possibility of no immediate signs; 10 punches forcefully into the face and no wounds or bruising to the face when she got to the hospital at half 7. And it actually goes further than that, because Mr Murphy told you that my client applied the lump hammer into her face. And that theory can’t be consistent with no wounds or bruising to her face or back.” We have already commented on seeking to compare or contrast the different approaches. We consider the differing approach exemplified in this passage as being irrelevant to the issues which we have to decide.

47. Counsel’s speech was comprehensive. Admittedly, she did not make reference to the injuries or Mr Wilson’s report. However, the speech must be considered as a whole, and in the context of the evidence and the run of the case. The only criticism that could be made is the omission to refer to the medical evidence and its implications for how the injuries were suffered. This was a judgement call typical of the way in which trials are conducted. It will frequently occur that every aspect of the evidence will not be referred to by competent counsel.

48. In the present case, indeed, we can see a perfectly rational basis for forbearance on the part of counsel in referring to the medical evidence about Mr Murphy. The absence of medical evidence to the effect that Ms Niewiadomska suffered injuries of the kind alleged by her was certainly something that would naturally be heavily emphasised. This is to be contrasted with a situation where significant injuries had been suffered by Mr Murphy, regardless of the manner of the blows; they were indicative of significant violence on any view, so counsel might rationally avoid reference to them even if in retrospect a different approach might have been best.

49. The trial was a relatively short one. We think that, taken in its proper context, it has not been shown that this one omission is “…misconduct outside the range of what any competent advocate would engage in”. Again, here, what we are dealing with is a counsel of perfection in retrospect.

50. When referring to Rondel v Worsley, the Supreme Court in Shaughnessey did not purport to decide whether or not the rule of immunity for advocates in relation to their conduct in court is good law in this jurisdiction. Rather, we think that the observations of Charleton J can be regarded as a timely reminder of the caution with which one should approach an assertion of incompetence in advocacy. In this context we speak also of the closing speech.

51. We accordingly reject this ground also.

Conclusion

52. As indicated above, we thought it appropriate to have regard to the expert evidence procured after trial on behalf of the appellant so that we might consider in the round whether or not this evidence, in conjunction with any deficiencies in pre-trial work or advocacy, gave rise to a serious risk that there was a miscarriage of justice. On the authorities it may be argued that unless there is an identifiable failure of the kind alleged, one only then proceeds to consider the latter issue and accordingly that such expert testimony would fall for consideration at that stage; ex abundante cautela we do not so limit ourselves. We do not think the report and additional medical evidence, if adduced, would necessarily have had an effect on the trial and verdict favourable to the appellant.

53. We might add that we have sought in accordance with Clinton (quoted with approval by Charleton J in Shaughnessey) not to “…approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged ineptitude [although that in our view was necessary] but rather to seek to assess its effect on the trial and verdict”.

54. Taking the case as a whole the appellant has not discharged the “heavy burden” of showing a departure from the level of competence required nor has it been shown either that there is “a serious risk of a miscarriage of justice”. Thus, the threshold for condemnation of the verdict has not been attained.

55. Accordingly, we dismiss this appeal.