Court of Appeal dismisses appeal against manslaughter conviction where jury was properly advised of alternative verdict.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 169 Record Number: 306/23 Edwards J. Burns J. O’Moore J.

BETWEEN/ THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT -AND-

MARTIN HAYES APPELLANT

JUDGMENT of the Court delivered on the 29th day of May 2025 by Ms. Justice Tara Burns

1. This is an appeal against conviction. The appellant was tried before the Central Criminal Court of murdering his partner Amadea McDermott on 20 July 2017. On 13 November 2023, the appellant was acquitted of the deceased’s murder but convicted of her manslaughter by majority verdict of the jury.

Background

2. In the early hours of 20 July 2017, emergency services were contacted by the appellant from the couple’s home seeking an ambulance for the deceased. The appellant also called the deceased’s sisters and told them that the deceased had suffered a cardiac arrest. The couple had two young children who were present in the house. The deceased’s sisters immediately attended at the couple’s house and brought the children from their bedroom to the sisters’ car whereupon they were driven to their maternal grandmother’s home. The daughter of the deceased, who was aged 7 at the time, was noted by her grandmother to be hysterical when she arrived at her house and said to her grandmother “Nanny, my dad has stabbed my mam and she’s dead”. The grandmother did not inform the Gardaí of this matter when she provided a statement to them the following day.

3. The deceased was brought to hospital where she was pronounced dead shortly after arrival.

The appellant and the deceased’s family also attended at the hospital. One of the deceased’s sisters assaulted the appellant at the hospital being of the view that he was responsible for her sister’s death.

4. The deceased had suffered a single stab wound to her abdomen. The track of the wound had ended at her spine and had perforated the right common iliac artery and the right common iliac vein. Toxicology reports confirmed that the deceased was “moderately intoxicated” with alcohol and had taken cocaine prior to her death, although not to excessive quantities.

5. The State Pathologist concluded that the deceased’s death was as a result of the stab wound to her abdomen. Evidence of blunt force trauma injuries were noted to the body of the deceased. Minor bruising to her head, trunk and limbs was evident, which the State Pathologist accepted may have been caused by the deceased falling to the ground.

However, the State Pathologist was of the opinion that bruising to the deceased’s face was more likely due to direct blows. In relation to whether the stabbing injury was self-inflicted or inflicted by a third party, the State Pathologist was unable to assist in that regard as the site or direction of the track of the stab wound was not informative.

6. The appellant attended Coolock Garda Station voluntarily the following day and gave a detailed account to the effect that the deceased had caused the injury to herself. He indicated that the deceased had begun fighting with him after the couple had finished all the alcohol and drugs which were available that night. He told the deceased that he was leaving her, as he was fed up with her depression and her behaviour and that he had had enough. He left the sitting room and went to their bedroom but was followed into the bedroom by the deceased where a verbal row continued. Ultimately, the deceased left the bedroom after the appellant reiterated that he was leaving her and that they could not solve matters. After a while he went to the sitting room to investigate as everything had gone very quiet. Thereupon, he discovered the deceased on the floor of the sitting room floor having stabbed herself.

7. Initially, the incident was treated by the Gardaí as a death from a self-inflicted injury and no further investigation ensued.

8. Arising from concerns expressed by members of the deceased’s family, the investigation into the deceased’s death was reopened in 2019. At this stage, the deceased’s mother informed the investigating guards of what her granddaughter had said to her when she arrived to her house on the night of her mother’s death.

9. The deceased’s daughter was interviewed by Garda specialist interviewers in early 2020 when she was aged 9. In the course of these interviews, she stated that she had seen the appellant stab her mother with a knife into her left hip. The deceased’s daughter had previously given an account to social workers of what she said she saw on the night. In this account she referred to seeing the appellant stabbing her mother into her left hand.

The deceased’s daughter was 13 when she gave viva voce evidence at trial. In the course of her evidence, she stated that the appellant hit her mother into the left side of her stomach with a knife.

10. The investigation by the Gardaí revealed a fraught relationship between the appellant and the deceased. The appellant had remotely installed a hidden monitoring device on the deceased’s mobile phone which allowed him remote access to it. In the days leading up to the deceased’s death, the relationship between the appellant and the deceased had become particularly difficult. The appellant believed that the deceased was having a sexual relationship with her brother and on 10 July 2017 was of the opinion that he had discovered a text on their daughter’s phone which confirmed this. Text communication and video recordings between the deceased and the appellant in relation to this claim in the days leading up to the deceased’s death were before the jury. The deceased was physically assaulted by the appellant during this period which caused extensive bruising to her body as noted by a beautician who provided a spray tan to the deceased.

11. In May 2023, a former partner of the appellant who had become involved with the appellant after the deceased’s death, made a statement to the investigating guards which asserted that the appellant had confessed to her that he had stabbed the deceased. She stated that the appellant had told her on Christmas Eve 2018 that:

“[H]e asked Ameada for her phone and she refused to give it. He told me he chased her around the kitchen to try get her phone off her and that he told her if she didn’t give him her phone that he was gong to put a knife through her stomach or slice her throat. Martin told me that Amadea took out a knife out of the kitchen drawer to protect herself and she wouldn’t hand over her phone so that he got both of their hands on the knife and rammed it through her stomach which hit a main artery and that’s how she died.”

12. In an earlier statement provided to the investigating guards in November 2020, the former partner had given a different account of what she said the appellant had told her about the incident. In this account she detailed that the appellant had told her that he was suspicious that the deceased and her brother were engaged in a sexual relationship and that he told the deceased that he was going to confront her brother. Her statement continued:-

“He told me that he told her that if she didn’t stab herself that he was going to. He said she begged him not to confront [her brother] as it would tear the family apart.

He said that she stabbed herself in the stomach…”

13. The discrepancy between the former partner’s two statements was enquired into by the investigating guards. Her second statement in May 2023, refers to the fact that she learnt of the possibility of the appellant getting bail (the accused having been remanded in custody awaiting trial for these offences) and the fear which this engendered in her if this occurred.

Her statement specifically records her being asked by the investigating guards why she had not mentioned this account in her initial statement and her statement records:-

“[I]t was out of fear and its also hearsay because I never recorded it, it’s his words versus mine. If I picked up my phone to record it or to ring the guards I wouldn’t be alive, and probably not my daughter either. Martin Hayes is an evil, violent man. He has pushed me down the stairs before. I am genuinely in fear for me and my daughter if he gets out on Bail.”

14. The appellant gave evidence before the jury. He denied stabbing the deceased. He indicated that the deceased had become crazed on the night in question when alcohol and drugs ran out and that he brought the children to bed. When he returned to the sitting room, he said that he found the deceased on the floor having stabbed herself. He said that his daughter was lying about what she said she had seen. He claimed that she had been poisoned against him by her maternal family. With respect to his former partner, he said that she was also lying and that he had not made this purported confession to her.

Grounds of Appeal

15. By notice of appeal dated 14 December 2023 the appellant lodged the following grounds of appeal:-

1. The Trial Judge erred in law and/or in fact in refusing to discharge the jury, thereby creating the risk of an unfair trial. This was against a background, inter alia, of when a prosecution witness, [the former partner], indicated that the defendant had been remanded in custody.

2. The Trial Judge erred in law and/or fact in admitting the evidence of [the grandmother] relating to the comments allegedly made by [the deceased’s daughter] in the immediate aftermath of the stabbing.

3. The Trial judge erred in fact or in law in failing to give adequate directions in relation to the said comments in ground 2 above.

4. Notwithstanding the jury were informed that that the above-mentioned evidence of [the grandmother] was not admitted for the truth of its contents, the jury were, in effect, invited to rely on it and that it was true in circumstances where

(a) It became the central part of the challenge in cross-examination of the accused;

(b) It formed a central part of the prosecution closing to the jury, and

(c) It was the subject of extensive comment by the Trial Judge as being evidence militating against fabrication (notwithstanding the ambiguity of "stabbed").

5. The Trial Judge failed to accede to the defence application that a central prosecution witness, [the deceased’s daughter] should give unsworn evidence and/or failed to adequately examine whether she understood the nature of an oath in accordance with law.

6. The Trial Judge erred in law in failing to give the jury adequate directions in assessing the evidence that Martin Hayes caused the stabbing of the deceased; in particular

(a) Failed to give a cautionary instruction to the jury to scrutinise the reliability of [the deceased’s daughter]'s evidence in circumstances which included the following.

(i) There was a reliability issue in relation to her evidence due to her tender age at the time of the alleged witnessing of the stabbing compounded by a gap of years before her first formal statement taken by An Garda Siochana.

(ii) Her account that the accused had stabbed the deceased in the stomach was extracted in specialist Garda interview in circumstances where the prevailing Garda Guidelines for interviewing child witnesses were not observed by the specialist interviewers.

(iii) At the time of giving her account to Gardaí, respectively her capacity to distinguish between fantasy and reality, any allegiances held by the child and any level of suggestibility were not assessed.

(iv) At the time of giving evidence in court, [the deceased’s daughter] failed to explain inconsistencies in her prior accounts, and further insisted in evidence inter alia, that a mirror in the sitting room was in fact a window which allowed persons outside the sitting room to see in while standing in the hall, looking through the said window, in circumstances where, inter alia, during the Garda specialist interview she had witnessed the stabbing through the said window.

7. The Trial Judge erred in law in failing to distinguish adequately or at all prior consistent and inconsistent statements of [the deceased’s daughter] in contrast to hearsay statements of that which [the deceased’s daughter] is alleged to have said.

8. The Trial Judge erred in his direction to the jury in inviting the jury to focus on the core event in analysing the evidence in support of the prosecution claim that 'daddy stabbed mammy"; in particular:

(a) This tended to undermine their duty to examine the detail on which the defence cross-examination of [the deceased’s daughter] and [the former partner] was based.

(b) It tended to unfairly diminish the difficulty presented to the prosecution by the contradictory evidence of the main witnesses [the former partner] and [the deceased’s daughter].

9. The Trial Judge erred in law in refusing to comment on the limited nature of the prosecution cross-examination of the defendant and its evidential implications.

10. The learned trial judge erred in over-emphasising the option of manslaughter when this option had not been mentioned by either prosecution or defence.”

16. At the hearing before us, Counsel for the appellant made oral submissions in respect of Grounds 1 and 2 but relied on his written submissions in respect of the remaining grounds of appeal.

Failure to discharge the jury

17. The former partner of the appellant was called to give evidence by the respondent in relation to what she said the appellant told her about what had occurred on the night of the deceased’s death. As already noted, the former partner had made two contradictory statements in relation to this. It was asserted by Counsel for the appellant that when giving evidence, the former partner also referred to additional matters which had not been contained in either statement.

18. Counsel for the appellant had a legitimate interest with respect to how these differing accounts came to be given by the former partner and cross examined her in relation to this.

19. However, in the course of this questioning, the former partner referred to the fact that the appellant was in custody on remand and stated that she would have been in fear of him if he had been released from custody. She stated that she gave her second statement in May 2023:-

“[B]ecause then I found out Martin was applying for High Court bail, I did not want -

- I was in fear of my life, of course I'm going to make a statement to be safe and keep my daughter safe ….

[F]rom when I heard that Martin could be getting High Court bail, the reason why I made the second statement is because what I was told on that Christmas Eve, to hear Martin then was going to be getting out, possibly getting out …

I was actually more afraid as well because after this man admitting to me what he's capable of, yes, of course I'm going to be afraid.”

20. Counsel for the appellant sought that the jury be discharged on foot of this unprompted evidence on the basis that the evidence was not only irrelevant but also was highly prejudicial. The trial judge refused this application stating:-

“Well, the situation in this case is that an application is now made to discharge the jury in circumstances where references have been made by the last witness to the fact that the motivation for her making her statement was in relation to a bail application and she had fear in her mind that the accused would be released. And because of her experience with him in her own relationship which involved, she says, a degree of violence, she had a fear of him if he were released and that was the context in which she made her statement. And it is a context in which the motivation, if you like, for the supplementing of information in relation to the confessional aspect of the evidence is central to the cross-examination….

Sometimes, …, a case occurs where prior misbehaviour or suggested misbehaviour or something that might be prejudicial to the accused arises because of the nature of the case and the facts surrounding the case and the exploration of those facts.

This is not a question of blame. This is just a question of happenstance … it comes out because it's part of the natural flow of the events … in which a particular witness is involved and that's clear in this case.

This girl who is giving evidence was in the course of her cross-examination invited to explain, in essence, the source of the discrepancies suggested to her between statements she had made. … [T]here was emphasis, quite properly, on the content of those statements and there was also an indication by her that she wished to give an explanation for that and she was, quite properly, told that would be explored also. So it is, in essence, part of the case. And it seems to me to be one of those cases which arise from time to time where facts of this kind come into the case, not because they're dragged in by anyone in a particular way to cause prejudice, but because they are part of the flow and an understanding of how things happened, particularly where in this instance there's an exploration of both the content of prior statements and the motivation for giving evidence in relation to the accused which forms a substantial basis for the prosecution case in the form of a confession. It's inevitable that those issues were going to be explored and explored fully. And it seems to me almost impossible to divorce what she is saying and her explanation for that from the necessity to explore those matters. There are often occasions when counsel can deftly avoid introducing that kind of material. But sometimes it just is going to happen and it's going to happen because it's so central to the issues that arise, and this is one of those cases in my view.”

21. In the course of his charge to the jury, the trial judge specifically directed the jury not to have regard to the evidence that the appellant was in custody informing them that this evidence was irrelevant to the issues which they had to decide. Prior to giving this direction, the trial judged consulted with Counsel, in response to which Counsel for the appellant specifically requested the trial judge to give the direction and agreed with the terms proposed.

Submissions of the Parties

22. The appellant submitted that the revelation to the jury that the appellant was in custody and that his former partner was afraid of him getting out of prison was highly prejudicial evidence which in effect amounted to a witness with experience of the appellant, and who knew what he was capable of, informing the jury that she believed her life would be in danger if he was not in prison. It was submitted that the judge’s charge to disregard the fact he was in custody could not remedy the unfair and prejudicial evidence which had been given.

23. The respondent submitted that this evidence was not of such a prejudicial nature as to meet the very high threshold required to discharge a jury. It was submitted that evidence of the appellant’s disposition towards domestic violence was already part of the case. In addition, the appellant was fully on notice as to why the former partner had made the additional statement in May 2023. While it was understandable that Counsel for the appellant wished to explore the discrepancy in her two statements, this approach ran the risk that she would refer to her reasons for making the second statement.

Discussion and Determination

24. The difference between the accounts given by the appellant’s former partner of what the appellant had purportedly said to her about the night of the deceased’s death was a legitimate avenue of enquiry for Counsel for the appellant to explore. However, once that course of questioning was embarked upon, the reason for the change in accounts was likely to emerge which Counsel for the appellant had full notice of. Accordingly, while Counsel for the appellant may well have preferred to have avoided the evidence complained about being given, he was fully aware of what the former partner would say about why she had changed her account of what the appellant had said to her about the night in question.

25. With respect to the reference that the appellant was in custody, the evidence was that the appellant was in custody on the charge before the jury. Hence, the evidence was not that he was in custody having been found guilty of something else. Accordingly, he was entitled to the presumption of innocence on the charge before the jury, which the jury were informed of many times during the trial. In addition, the trial judge directed the jury that the fact that the appellant was in custody on the charge before them was completely irrelevant to the issues they had to decide and should be disregarded by them.

26. In relation to the prejudice which is asserted by the appellant to arise by the former partner expressing her fears for her safety should the appellant be released on bail, as already indicated, the fact that this would be her evidence if this line of questioning was pursued was already well flagged. Once this area was canvassed with the former partner, she was entitled to give her answer as to how the change came about even if this resulted in a prejudicial answer to the appellant. As the trial judge indicated it was an inevitable consequence of this area being explored. In addition, it was not at issue whether the appellant had engaged in acts of domestic violence as against the deceased. Rather the issue was whether the appellant had murdered the deceased. Accordingly, the evidence of the former partner that she would have been in fear of the appellant in light of what she said he had admitted to her was not as prejudicial as might otherwise be the case in light of the acceptance of this feature of the relationship between the deceased and the appellant by the appellant.

27. As stated by Edwards J in The People (DPP) v. Coughlan Ryan [2017] IECA 108 at paragraph 26:-

“The exercise of discretion by the trial judge whether or not to discharge a jury has to be undertaken in the light of the particular facts of each case, but always subject to the primary consideration as to the extent of the prejudicial effect of the inadmissible evidence on the jury and any likely consequential undermining of the accused’s right to a fair trial.”

28. We are of the view that having regard to the particular facts at issue in this case, together with the reason the evidence came to be given, the prejudicial effect of the evidence was not such that it undermined the appellant’s right to a fair trial. Furthermore, whatever prejudice which arose was well capable of being dealt with by direction of the trial judge, and ultimately was correctly dealt with by him in consultation with Counsel for the appellant.

Accordingly, we are of the view that the trial judge did not err in refusing to discharge the jury on this basis and this ground of appeal fails. Evidence to rebut recent fabrication

29. The deceased’s daughter gave viva voce evidence that the appellant stabbed her mother on the night in question. The appellant’s challenge to his daughter’s evidence in the course of the prosecution case was that she was mistaken about what she said she witnessed.

While it was not squarely put to the deceased’s daughter, the suggestion was floated in the course of the cross examination conducted of her and of her aunts, that the account she gave was generated as a result of conversations within the deceased’s family after the incident which she was exposed to.

30. As a result of this suggestion, the trial judge confirmed with Counsel for the appellant that the defence case was that “there’s a potential influence from what was heard around the kitchen table over time that fed into furnishing the story.”

31. The respondent subsequently applied to admit evidence from the grandmother of the consistent statement made by the deceased’s daughter to her on arrival at her house on the night of the deceased’s death, to rebut the suggestion which was being made by the appellant.

32. Having conducted an extensive review of the evidence regarding the suggestion that the deceased’s daughter was influenced in her account by conversations within the deceased’s family, the trial judge ruled on the respondent’s application as follows:-

“[P]rior consistent statements of a witness may be tendered in evidence under recognised headings. It may be adduced … where counsel on the other side impute a design to misrepresent from some motive of interest or relationship. And in order to repel that kind of imputation, it's proper to show that the witness made a similar statement at a time when the supposed motive didn't exist. And in this instance, it seems to me the relevant feature of the case is, when did the suggested contamination, when would it have commenced or when is it said to have commenced? And it's said to have commenced on the very evening of the death, when the child arrived at the house and there was discussion.

…

So in respect of the suggestion now made and clearly emerging from the line of cross examination to date in my view that there was … discussion amongst the family members in the immediate aftermath of the event at the house. And that this may have contaminated or infected, or in some way influenced the child's … recollection.

It's not said it's done, and it was never suggested in cross examination, and I think disavowed that this was done deliberately by anybody. But that it is in the case that this was something that was must have been in the child's mind or may have been, even reasonably possibly have been in the child's mind when she was making her statement to the Gardaí. And that … is what this description is all about, because of course the description is said to be a wrong description and not true. So the relevance therefore of the report to the [grand]mother really arises, not from the fact that it was made because it could have been made at any time. But the fact that it was made on the night and spontaneously on the night, that's its relevance in my view. In the context of something that is said to have come into the case on the defence line of questioning in the course of chat around the kitchen table, either that night and/or subsequently over a period because of the close bond and relationships the child had with her aunts and family. So therefore, it seems to me that the important aspect of this falls to be considered, in relation to the statement to the grandmother on her arrival in the house, which is what is objected to. And it seems to me that …it's important to understand the timing of that intervention or that conversation.

At page 45 of the book of evidence, [the grandmother] states, "I could hear [one of the sisters] shouting about cardiac arrest saying why she would get arrested and then they were gone. I haven't a clue what was happening, I knew it involved [the deceased], but I was in the dark. I got out of bed and went to the sitting room I was sitting on the couch when the front door opened, and [the deceased’s daughter and son] walked in. [The deceased’s daughter] walked straight over to me and said, 'Nanny, my dad has stabbed my mam and she's dead'. She burst out crying and started hugging me. I will never forget her face as she told me with pale skin and look of worry, I didn't ask [the deceased’s daughter] any questions, we just hugged. This was the first time I'd heard that [the deceased] had been stabbed, I was in total shock and devastated."

Now, it seems to me the relevance of that, having regard to the line of questioning which was being set out and the critique of the testimony given by the child, a child of seven at the time and subsequently giving a statement to Gardaí which may have been influenced by chats around the table or family discussion or the aunts in some way or other. The relevance of that in essence, outburst to and spontaneous statement to the grandmother looms large, in the sense that there is no opportunity for -- given the short distance, as I understand it, between the apartment and the grandmother's house for the kind of difficulty that arises, or said to arise occurring, because this was a rapidly moving event. And she was brought straight to the grandmother's house and into the grandmother's arms and she makes this statement.

So there isn't any -- in terms of what one might consider in terms of being influenced by others, … it is arguable from the prosecution point of view that there's no opportunity for that, in the sense that has been canvassed and that it negates that. And it in effect is admissible and relevant for that reason… [T]he Court should also take account of the circumstances therefore in which it's made. And that brings me to another aspect of these kind of statements when they're admissible, though in another circumstance under one of the exceptions. Where sometimes it's said, well a statement is made so spontaneously, that the possibility of error or concoction or manipulation is reduced almost to minimal, or almost non-existent levels, or can be so regarded as a matter of common sense.

…

[I]t shows that the witness made the statement, which is similar to her testimony, at a time when that supposed influence that …is said to dominate her making the statement and making what is said by the defence to be a wrong report of what happened, when those circumstances did not obtain. And so it is admissible in my view in order to repel the inference that might otherwise be drawn.”

33. While not strictly relevant to the ruling of the trial judge in light of the timing of the ruling, it is appropriate to note that the appellant’s challenge to the evidence of his daughter changed when he came to give evidence from one of her being influenced by conversations within her maternal family resulting in her having an incorrect recollection of what occurred to instead being “poisoned” by her maternal family to invent lies about what had occurred.

The Submissions of the Parties

34. The appellant submitted that the legal threshold was not established to permit the admission of evidence to rebut recent fabrication as the deceased’s daughter had not been directly challenged that her statement was a recent fabrication.

35. The respondent submitted that the trial judge properly exercised his discretion to admit the evidence of the grandmother in light of the suggestion made on the appellant’s behalf in the course of cross examination of various witnesses, that the account given by the deceased’s daughter came about as a result of being influenced by discussions within her maternal family. It was submitted that this suggestion had become a central feature of the appellant’s case and that it was appropriate that evidence in rebuttal of the suggestion be adduced.

Discussion and Determination

36. McGrath on Evidence (3rd edn, Dublin: Round Hall 2020), when considering the admission of a consistent statement, states at paragraph 3-221:-

“[I]f a witness’s testimony is challenged in cross-examination as being a recent fabrication, statements made by him or her to the same effect prior to the date of the alleged fabrication may be adduced in order to show his or her consistency. It is important to note that, when admitted a previous consistent statement is not evidence of the facts stated, but merely goes to rebutting the imputation made, and the jury should be so instructed.”

37. While it was not directly suggested to the deceased’s daughter that her account had been recently fabricated (although this was the appellant’s case when he came to give evidence), the appellant’s case put in the course of the prosecution evidence clearly was that her account had been influenced by what had been discussed by her maternal family. This was demonstrated by the cross examinations which took place of the deceased’s daughter and her maternal aunts which the trial judge examined in detail from this perspective and which we have had regard to. Most significantly however, it was acknowledged by Counsel for the appellant that this was the defence case when specifically asked about this by the trial judge at a stage before the application by the respondent to admit the grandmother’s evidence was made.

38. In these circumstances, a central plank of the respondent’s case was challenged by the suggestion that the eye-witness account of the deceased’s daughter was unreliable because it came from a child who had been influenced by what she heard her maternal family discussing about the possibilities of what occurred on the night in question. In those circumstances, it was entirely appropriate for evidence to be called to rebut that suggestion where “[t]he nature of the cross-examination brought the question of complaint centre stage” as Birmingham J stated in DPP v. SO’C [2017] IECA 23.

39. The appellant complains that discrepancies existed between what the deceased’s daughter said to her grandmother and an account she gave to social workers shortly after the deceased’s death which, it is important to note, also referred to the appellant stabbing her mother. For that reason, it was submitted that the evidence of the grandmother should not have been admitted. The issue of any discrepancy which might have arisen in this regard is a separate issue to the question of whether the deceased’s daughter had given an account of the appellant stabbing her mother prior to any discussion within the maternal family taking place. Indeed, Counsel for the appellant sought to rely on such discrepancies when challenging the accuracy of the account given to the grandmother by the deceased’s daughter.

40. We are of the opinion that the trial judge properly exercised his discretion to permit the evidence of the grandmother as to what the deceased’s daughter said to her on arrival to her house about what she had witnessed, as evidence of consistency with respect to the evidence she ultimately gave at trial. Accordingly, this ground of appeal fails.

41. The remaining grounds were not argued before the Court with the appellant instead relying on his written submissions. We can deal with these grounds in short order.

Trial Judge’s direction on the grandmother’s evidence (Ground 3) and the particular complaints set out in Ground 4 regarding this evidence

42. The trial judge gave the following direction to the jury regarding the evidence from the grandmother regarding what the deceased’s daughter said to her on arrival at her house:-

“[W]e've had evidence of what might be termed a prior consistent statement and that arose in respect of you will recall [the grandmother’s] evidence as to what [the deceased’s daughter] was said to have said to her when she came in the front door having been brought around from the apartment in the early hours of the morning, what she said to her then. Normally that would not be before you in evidence. It is not evidence what the child said on that occasion is not evidence of the truth of the contents of what she said, it's introduced and can only be relied upon for a very limited purpose because in the context of the evidence as it flowed, you heard suggestions that what she was saying in evidence about what she saw was picked up around the dining room table or the sitting room table from others or ultimately I think the word was used from poisoned discussion and that she was her evidence was in some degree contaminated by that.

The only reason her prior utterance to her grandmother could be introduced is to show in terms of credibility, it could only be relevant to credibility, but you'd have to accept that she said it and beyond reasonable doubt. You'd have to accept that she said specifically what the grandmother said beyond reasonable doubt and there would be have to be no reasonable possibility that that was incorrect before you could rely on it as a prior consistent statement. Again, it goes only to credibility and can only go to credibility, it cannot be regarded as evidence of the truth of its contents, I want to be very clear about that.”

43. The appellant does not in fact complain that any portion of this direction is incorrect in law but rather complains that the distinction between evidence being admitted to establish consistency rather than being admitted to prove the truth of what was said would not have been fully understood by the jury.

44. This submission has no merit. The direction of the trial judge was accurate, easily understandable, and cannot be faulted. Experience has shown that juries are well placed to understand legal directions given to them by trial judges and are equally well capable of asking a question of a trial judge if the need arises. Accordingly, ground 3 of the grounds of appeal fails.

45. With respect to the complaints made in ground 4 of the grounds of appeal, namely that the evidence of the grandmother regarding the previous statement of the deceased’s daughter attracted too much importance in the trial, the fact of the matter is that the claim that the deceased’s daughter was influenced by conversations within her maternal family was of central importance in the trial. It was the principal challenge to her eye-witness account that the appellant stabbed the deceased. By the time the appellant gave evidence, his assertion was that his daughter had been “poisoned” against him and was lying. The evidence of the grandmother provided rebuttal evidence of that assertion, should the jury have accepted her evidence. Accordingly, this was a vitally important issue which was not overplayed by the respondent nor focused upon to an excessive extent by the trial judge in the circumstances of the case. Accordingly, the complaint made in Ground 4 of the grounds of appeal is not made out and this ground of appeal also fails.

Administration of the oath to the deceased’s 13 year old daughter

46. The appellant submitted that the trial judge erred in permitting the deceased’s daughter give her evidence under oath. It is suggested that her evidence instead should have been given without the administration of the oath pursuant to s. 27 of the Criminal Evidence Act 1992. The basis for this ground of appeal is an assertion that it had not been established that the deceased’s daughter understood the meaning of the oath having regard to the conversation which the trial judge engaged in with her prior to her giving evidence.

47. On foot of this issue being raised with the trial judge before the deceased’s daughter’s evidence commenced, the trial judge declared himself to be satisfied beyond reasonable doubt that she understood the meaning of the oath. This was a determination of fact for the trial judge to make having spoken with and assessed the deceased’s daughter. In those circumstances, it is inappropriate for this Court to interfere with that finding having regard to Hay v. O’Grady [1992] 1 IR 210.

Inadequate charge on the evidence of the deceased’s daughter

48. The appellant complained that the trial judge did not adequately direct the jury in relation to the evidence of the deceased’s daughter having regard to her very young age when the incident occurred and the gap in time until the trial took place, particularly in circumstances where discrepancies arose in accounts she gave to social workers and the Garda specialist interviewers, and having regard to an assertion that the guidelines for conducting such Garda interviews were not followed.

49. The deceased’s daughter gave evidence viva voce rather than the respondent seeking to rely on the Garda specialist interviews which were conducted with her. The discrepancies which the appellant refers to in his submissions were fully ventilated before the jury in the course of the trial. Furthermore, the trial judge specifically referred to the discrepancies which existed and to the fact that this was a child witness recollecting at age 13 an event which occurred when she was 7. The discrepancies which arose were matters for the jury to consider which they were fully cognisant of.

50. With respect to the complaint that the Garda specialist interview guidelines were not fully complied with, this was of little, if any, significance in light of the fact that the deceased’s daughter gave her evidence viva voce.

51. No error arises in the manner in which the trial judge dealt with the evidence of the deceased’s daughter and this ground of appeal fails.

Inadequate charge on out of court statements

52. While this ground of appeal asserts that the trial judge erred in law in failing to distinguish adequately between prior consistent and inconsistent statements of the deceased’s daughter, the real complaint appears to be that the trial judge failed to warn the jury, in the particular circumstances of the case, to exercise caution when considering the child’s evidence.

Discussion and Determination

53. There is no requirement for a trial judge to give such a warning when considering the evidence of a child. In the instant case, the trial judge exercised his discretion not to give such a warning. It has not been established that he was incorrect in this regard.

Error in inviting jury to focus on the core event

54. The appellant submitted that the trial judge erred in his direction to the jury to focus on the core event when analysing the evidence in support of the respondent’s claim that the appellant killed the deceased. It was submitted that this undermined the cross-examination conducted of the deceased’s daughter and the appellant’s former partner and diminished the importance of the discrepancies which existed between the accounts they each provided. Discussion and Determination

55. It is not the case that the trial judge did not refer to discrepancies in the accounts given of the events at issue by the deceased’s daughter. Neither is it the case that the trial judge did not refer to the discrepancy which existed between the account given by the deceased’s daughter and the account which the appellant’s former partner said she was told by him.

Both of these areas were addressed by the trial judge in the course of his charge.

Furthermore, the trial judge did not direct the jury that the discrepancies focused upon by Counsel for the appellant in the course of his cross examination of various witnesses were of no consequence.

56. Where discrepancies exist of the nature present in this case, namely the deceased’s daughter had provided differing accounts of the stabbing she witnessed on the night in question to a number of people; and a discrepancy existed between the account of the deceased’s daughter and the account which the former partner indicated the appellant narrated to her, it was appropriate for the trial judge to direct the jury as to how they might approach such inconsistencies if they ultimately were satisfied to the requisite standard that the appellant stabbed the deceased. We are of the opinion that the trial judge did not err in this regard and this ground of appeal fails.

Refusal of the trial judge to charge the jury on the cross-examination of the appellant

57. The appellant submitted that the trial judge erred by not directing the jury in relation to the failure by Counsel for the respondent to put the respondent’s case to the appellant.

58. It appears to us that the real complaint which the appellant is making is that in a situation where the respondent had called two witnesses who gave directly relevant, although apparently irreconcilable, evidence relating to the killing of the deceased, the respondent should have indicated which version she was relying on.

59. Firstly, this is not the ground of appeal formulated. Furthermore, there is no legal basis for such an assertion. It is not for the respondent to determine any factual issue.

Determination and Discussion

60. With respect to the ground of appeal which is pleaded, there is no factual basis for this ground of appeal. The appellant challenged the account of each of the witnesses who had given evidence directly relevant to the deceased’s demise. In his evidence, the appellant said that his daughter was “poisoned” against him by her maternal family and was lying about what she said she witnessed that night and that his former partner hated him and was also lying about him confessing to her. He said that he did not stab the deceased and that she inflicted the stab wound herself when he was absent from the sitting room.

61. The appellant was expertly cross examined, in detail, by Counsel for the respondent with respect to the evidence given by his daughter and his former partner. In addition, the evidence which each witness gave was put to the appellant. A criticism that Counsel for the respondent did not put the respondent’s case simply does not arise. Accordingly, there is no basis for the assertion that there was a failure by the trial judge to explain the effect of not putting the respondent’s case. This ground of appeal fails. Leaving the charge of manslaughter to the Jury

62. The appellant complained that the trial judge advised the jury that a verdict of manslaughter was open to them.

63. The possibility of a manslaughter verdict was only introduced by the trial judge during the course of his charge and was not mentioned by either the prosecution or defence during closing speeches. The appellant asserted that leaving it open to the jury to return a verdict of manslaughter raised the possibility that the jury would return such a verdict rather than return a verdict of not guilty.

64. The respondent submitted that in circumstances where the appellant’s defence was premised on him not having carried out the actus reus of murder by not having stabbed the deceased, it was inconceivable that he would have addressed his lack of mens rea for murder, and therefore he was not prejudiced by the trial judge leaving this possibility open to the jury as his defence would not have been run any differently. In addition, if the jury were satisfied beyond reasonable doubt that the accused had inflicted the fatal injuries on the deceased, it was appropriate that the alternative verdict of manslaughter be available to them lest they were not satisfied that the mens rea of the offence had been proven to the requisite standard.

Discussion and Determination

65. When the actus reus of murder is established to the necessary standard, the next consideration for a jury is the question of mens rea. If a jury are not satisfied that an accused intended to kill or cause grievous bodily harm to the deceased, they cannot return a verdict of guilty of murder. In those circumstances, the alternative offence of manslaughter by an unlawful and dangerous act is open to the jury. While the availability of this verdict was not canvassed by the respondent, it is an option which arises as a corollary of the jury not being satisfied beyond reasonable doubt of the mens rea of murder.

In the instant case, the verdict of manslaughter was open to the jury if they were not satisfied of the necessary mens rea of murder and accordingly the trial judge did not err in advising the jury of the availability of this verdict.

Conclusion

66. In circumstances where we have not upheld any ground of appeal, the appellant’s appeal against conviction is dismissed.

Approved

No Redaction Needed