Court of Appeal dismisses appeal against assault conviction, rejecting juror bias claim and confirming proper legal representation.

An Chúirt Achomhairc

The Court of Appeal

Court of Appeal record number: 279/2024 Bill number DUDP0515/2021 Neutral Citation Number:[2025] IECA 262

Charleton J Kennedy J Burns J

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

Feliks Andrianov Accused/Appellant

Judgment of the Court, delivered by Mr Justice Peter Charleton, 10 November 2025

1. On 5 July 2019, the appellant parked his taxi in the carpark of McDonald’s fast-food restaurant. He did not enter the restaurant. There is free parking for 30 minutes for patrons who buy refreshments. Instead, he went to the toilet in a nearby garage. He was away from his car, according to evidence at the trial, for about 9 minutes. On returning, the victim, Michael Norris, who was on the McDonald’s security and supervision team, had clamped his vehicle. This was a lawful act. The appellant attacked him. Mr Norris was wearing a bodycam and the carpark had surveillance cameras. These showed the attack. Mr Norris was hurt, lost time at work and was badly affected by the attack. On this appeal, the appellant demonstrated no insight into his behaviour and no empathy towards the man he had attacked and harmed.

2. Feliks Andrianov was charged with assault causing harm, contrary to s 3 of the Non-Fatal Offences Against the Person Act 1997. He was convicted by unanimous jury verdict on 16 July 2024. On 1 November 2024, Her Honour Judge Elma Sheahan, having heard a moving and persuasive plea in mitigation from his counsel, Mr Kevin McCrave BL, imposed a sentence of 18 months imprisonment but suspended it on conditions. Having dismissed his counsel and solicitor, because of his subjective dissatisfaction, the appellant presented this appeal both orally and in writing. That appeal is dismissed for the reasons which follow. Jurors’ refreshments

3. The appellant asserts that because jurors serving in the Dublin Circuit Criminal Court receive vouchers to purchase lunch at state expense, that this distorts the balance of justice. His contention is that the Director of Public Prosecutions is a branch of the State and that, by receiving funds from the Courts Service to buy a modest meal at lunchtime, jurors become biased towards the State. This, he posits, somehow contributed to his conviction.

4. Jurors are entitled to consideration. If working, their employers must give them paid leave for jury service, but they devote time, the bother of travel over long distances to the Central Criminal Court, together with their experience of the world and education to fulfil their constitutional mandate under Article 38 to try serious criminal offences. On no rational analysis of jurors being provided with teas and coffees in their room and a modest voucher to keep their energies up at lunchtime could any form of bias be generated.

Judge Sheahan

5. Of a piece, are the comments made by the appellant about the trial judge. According to him, the judge addressed the jury “in maternalistic tones” and deliberately created a “psychological relation” with them. This was furthered, he contended, by enquiries such as “how was your dinner”, after lunchtime. This does not appear in the transcript. In an alleged affront to the appellant’s sensitivities, the judge reminded the accused not to be late for court. In another supposed affront, the judge allowed the court to see the videos of the appellant attacking Mr Norris. This, according to him, was a victimisation of him because he was reminded of an unpleasant incident where he sees himself as wronged. That the unpleasantness, to put it mildly, had been visited on the victim and that he had to give evidence at the trial simply never occurs to the appellant.

6. These submissions defy sense. Kindness by one part of the administration of criminal justice, the judge, towards court staff, counsel, solicitors, jurors and litigants is what the modern dispatch of court business requires. The appellant sees the chimera of unfairness towards him in ordinary polite conduct and, for him, good manners are a manifestation of some underlying animus which no rational person could see. In an ancestral adage: “Níor bhris focal maith fiacail riamh.” Courtesy is a universal value both within and without the administration of justice.

Premature removal from the witness box

7. The appellant claimed that he was prematurely removed from the witness box. This, the transcript shows to be a phantom. He gave evidence in his own defence and was thoroughly taken through what he asserted to be his defence by Mr McCrave BL. No possible aspect of any excuse or defence for his attack on Mr Norris was left out. Counsel for the prosecution cross-examined the appellant. That came to an end. Rightly, counsel defending do not have to reexamine a witness unless something occurs under cross-examination that requires an additional detail to be brought out. There was nothing here. Voluble answers characterised the appellant’s testimony. What was apparent on reading the transcript was the sheer inadequacy of any answer to the charge.

8. That aspect manifested on the appeal. What the appellant was doing in attacking Mr Norris was “a citizen’s arrest”, he claimed. Alternatively, according to him “it never happened”. Otherwise, he posited “it was self-defence”. His actions, according to the appellant, were to be excused because his “mother was dying” at the time. This is not a defence in law. Fortunately, his mother is still alive, these years later, in his native land. She had been ill. The appellant claimed in oral argument as to how his testimony ended: “I asked prosecutor a question. Prosecutor got all red and needed a helping hand but Judge Sheehan told me I could resume my seat.” It is not for a witness to challenge the court. Further, it cannot be known what degree of self-justification colours the appellant’s asserted memory. Submissions are not evidence. Witnesses in the adversarial system are not at large. They are under the control of the court. Parties may only ask questions in respect of matters within the receivable scope of the book of evidence. Were witnesses enabled to distort that procedure, trials would dissolve into uncertainty. The trial judge is there to ensure the system works and that is what she did.

The defence proffered

9. In terms of law, s 4 of the Criminal Law Act 1997 defines powers of arrest, while leaving intact specific other powers; such as arrest for breach of the peace, as in a riot or other public situation of disturbance. On the abolition of the concept of felony, the concept of arrestable offence was the replacement. This is the commission of an offence carrying 5 years or more as a penalty of imprisonment if prosecuted on indictment. Thus, even though petty thefts might result in a fine, theft in itself is arrestable. That is merely an example. The section reads:

(1) Subject to subsections (4) and (5), any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be in the act of committing an arrestable offence.

(2) Subject to subsections (4) and (5), where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.

(3) Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.

(4) An arrest other than by a member of the Garda Síochána may only be effected by a person under subsection (1) or (2) where he or she, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.

(5) A person who is arrested pursuant to this section by a person other than a member of the Garda Síochána shall be transferred into the custody of the Garda Síochána as soon as practicable.

10. For a person who is not a Garda, and the appellant is a taxi man, a crime which is arrestable has to have been committed or to be in the course of being committed, as a matter of fact. Not just perception: fact. Where that is so, a person reasonably suspected of the commission of that crime, which has happened or is happening, may be arrested. A Garda may arrest where a crime is merely reasonably suspected. It does not need to have happened in fact. No crime was committed by Mr Norris. He was acting according to his contract. The appellant was in the wrong. The only crime committed was that by the appellant. Mr Norris, on being assaulted and harmed, or any other person in the carpark could have arrested the appellant. Section 3 of the Non-Fatal Offences Against the Person Act 1997, provides the penalty: “on conviction on indictment to a fine or to imprisonment for a term not exceeding 5 years or to both.” This provision has since been substituted the Criminal Justice (Miscellaneous Provisions) Act 2023. The 1997 Act now provides for a maximum sentence of 10 years’ imprisonment on conviction on indictment, however, this came into effect on 1 November 2023.

11. Counsel for the appellant, Mr McCrave, put versions of facts in a highly competent fashion to the witnesses to this crime. Some of the instructions from the appellant were as loose and variable as his oral submissions on this appeal. But, there was also a version of self-defence there and that, essentially, is what the appellant was saying in the witness box in addition to a litany of imagined unfairnesses by everyone except himself. There is no air of reality to that defence; The People (DPP) v McNamara [2020] IESC 34, [2021] 1 ILRM 350, [2021] 1 IR 472. A trial judge should not leave a defence to a jury if that defence is not founded in the evidence and has an air of reality to it. In reality, there was no defence to be left to the jury. Instead, what was skilfully done by counsel on behalf of the appellant was the casting of doubt on evidence and the raising of objections to evidence. So, the trial essentially was about whether the prosecution had proven the case.

The bodycam and CCTV

12. Most of the evidence came from the bodycam on Mr Norris and the closed circuit television system surveilling the carpark at McDonalds. Confused submissions were made by the appellant to this Court. He claimed, essentially, fraud by the Gardaí, that not all witnesses who could have been called were called and that the video evidence was “distorted”. Mr McCrave succeeded through legal argument in having the trial judge conduct a voir dire on the admissibility of that evidence. Only skilled and indeed inventive argument would have enabled that unusual step.

13. Video and photographic evidence is a matter of fact. Like any other fact, that is within the province of the jury for trial. Arguments were raised at the trial on the origin of the video, its copying, the comparison of the bodycam with CCTV footage and the timestamps on same. Clearly, it was explained that the footage shown to the jury was edited. That is commonplace. Trials must be conducted concisely. Hence, artifices such as those urged by the appellant on this appeal as to the time elapsed between parking and the attack on Mr Norris as being 1 minute and not 9 as originally are hollow. The manner of editing was done in a highly responsible manner.

14. There was nothing to stop Mr McCrave putting any point that might cause doubt based on his instructions. That was done. But, matters of fact cannot be turned into matters of law. In The People (DPP) v McHugh [2024] IECA 176, this Court explained the central nature of the role of the jury and that their responsibilities as to fact might only be taken by the trial judge in areas defined by law:

9. Without the existence of a rule enabling exclusion, there is no basis whereby discretion can take the place of law and overturn the central rule that what is relevant is admissible.

Over centuries, the court system kept that principle as a cornerstone. That is why witnesses are summoned to court. The system of justice has traditionally necessarily resorted to compulsion to ensure that all relevant evidence is to be adduced before the tribunal of fact at a criminal trial. In The People (DPP) v JT (1988) 3 Frewen 141, 145 Walsh J stated that:

“the administration of justice itself requires that the public has a right to every man’s evidence except for those persons who are privileged in that respect by the provisions of the Constitution” itself “or other established and recognised privilege”. That which render more or less improbable any fact in issue is relevant; The People (DPP) v Almasi [2020] IESC

35 [23]-[29]. The rule used in exclusion by the trial judge was that of prejudicial effect outweighing any probative value. That is a matter of judicial assessment and not of discretion. Relevance renders evidence admissible unless a rule of law requires exclusion.

Cole, Irish Cases on Evidence (2nd edition, Dublin 1982) puts the matter succinctly at pages 1-2 thus:

It must be borne in mind that in its ordinary meaning “relevance” denotes something which is variable and elastic: variable because a particular fact may be relevant in one context and irrelevant in another, elastic because the relevance of any relevant fact may vary in degree from being only minimally of interest to being highly or compulsively persuasive. Facts which are only minimally relevant maybe excluded on that ground alone.

10. In The People (DPP) v AC [2021] IESC 78, [2022] 2 IR 49 the issue was the extension by statute of the hearsay rule. A submission was made that evidence could be excluded through the exercise of discretion generally. Charleton J noted the occasions where discretion was validly part of the law of evidence:

28. Balance may on occasion be part of the law of evidence but the reception of testimony is rarely dependant on discretion. Here, there may be a misunderstanding manifest in the submissions on both sides. Evidence is receivable when, as in a civil case, it is part of the pleaded issues. Outside of that, where defamation is pleaded, negligence in sourcing material has nothing to do with the issues. In a criminal case, reasonable notice of fact is given in a book of evidence or by disclosure and a notice of additional evidence may be necessary to supplement, and make receivable in court, the facts notified as part of the prosecution case. Relevance is thereafter the criterion whereby evidence is admitted: what proposed fact tends to further the proof of a fact in issue? There is no discretion to exclude relevant evidence. Where prejudice is the effect of evidence, a balancing exercise is called for whereby the trial judge may need to exclude evidence, for instance of prior bad conduct, because it adds little to a case even though it may be logical in some weak way to further the proof of a fact in issue. But highly prejudicial evidence may be very probative; as to methods of murder and opportunity, for instance, as in R v Scarrott [1978] 1 All ER 672, or where a skill learned in jail accounts for the professional dismemberment of a victim’s body after death, as in The People (AG) v Kirwan [1943] IR 279. When an illegality has been the foundation of the finding of evidence, regard may be had to the gravity of the wrong and the consequences; what Clarke J refers to in The People (DPP) v JC [2017] 3 IR 417 as an “assessment”. There may, in addition, be circumstances where the protection of the fairness of taking a confession statement requires the judiciary to protect a suspect from a trick, such as a false statement of the confession of an accomplice or deceit over a fingerprint or DNA which does not exist. That is a common law exception related to the maxim nemo tenetur se ipsum prodere.

15. Warnings are another example of discretion. But there, there is no effect on the admissibility of the evidence. Rather, particular attention in the judge’s charge is drawn for the jury to issues which judicial experience, or legislative intervention, has identified as requiring particular care: the evidence of an accomplice; an uncorroborated confession – both require a warning as a matter of law. For the victims of sexual violence, usually referred to as complainants because consent is, except in the rarest cases, the issue and usually contested, the form of warning and whether it be made to the jury has evolved into one of apparently untrammelled discretion.

16. There are other forms of discretion, or adjudication of balance, in the law of evidence; but these are rare and in no way set up a general discretion. These principles are exceptional to the overall rule that all relevant evidence is admissible as set out in McHugh.

11. The 2021 Act cannot have the purpose of excluding from the province of jury fact-finding that which is properly within the province of their assessment.

Increased efficiency is the objective of the legislation, which it is the duty of judges to give effect to. It could not be argued that, for instance, where a person makes an allegation of sexual violence, a voir dire should be held to ascertain the strength of their evidence so that an application for exclusion might be made to stop a trial before it had even begun. As to what weight is to be attached to evidence is a matter for the jury. In May and Powles, Criminal Evidence (6th edition, London, 2015) at 16.07, footnotes omitted, the distinction is clearly drawn:

A trial-within-a-trial is not an appropriate procedure when the question to be determined is not one of fact for the judge but is purely within the province of the jury, for example whether the evidence is true or not, fabricated, or whether the defendant’s signature has been forged on notes of an interview. In Walshe the Court of Appeal said that a trial-within-atrial was not an appropriate procedure for deciding the admissibility of evidence relating to an identification parade. In Flemming the Court came to the same conclusion when considering the admissibility of a disputed identification.

17. The written and oral submissions of the appellant seek to overturn settled law in the sphere of evidence and on the interpretation of the Constitution. Nothing convincing has been said by him. Nothing indicated anything to the submission of the appellant questioning whether the footage was “really authentic” and his evidence enhanced rather than challenged the prosecution case.

Legal representation

18. It follows that the other ground of appeal as to legal representation is unfounded. There is a right to legal representation. The fact that an accused might have different views as to presentation or thinks through the trial on the basis of a distorted view of obvious facts is neither here nor there. On the accused’s oral submission literally everyone involved in the case was in the wrong; Gardaí, the judge, counsel, solicitor, the victim, the witnesses. All were enmeshed, for no reason, in a web of deceit against him. What stands out clearly from the transcript is the competence of his legal representation. Counsel’s duty is to take factual instructions through the solicitor from an accused. Nothing is to be embellished or distorted. Counsel is merely a mouthpiece on the facts and challenges witnesses either expressly on instructions, or where there are no direct instructions, on the rationality and accuracy of what the witness may be recounting. That is what was done here and done in a directed and professional manner.

19. This is the subject of authoritative analysis by the Supreme Court in The People (DPP) v Shaughnessy [2021] IESC 18, [2021] 3 IR 444, where the principles were set out thus:

30. In this context, as the Scottish analysis practically demonstrates, it is necessary to remember that there are a wide range of decisions that might be made within the realm of competent advocacy, especially, or even in such simple circumstances as where a single witness alleges an offence and the accused has instructed his lawyers that the facts were both different and innocent in character. At a minimum, the accused’s case in that regard must be put and it is for the trial judge to see that that is done and avoid a crossexamination conducted at large. A simple reminder to counsel from the judge of “what case are you putting to this witness” suffices. Factual issues relevant to a witness’s testimony if contradicted by the instructions of the accused should be put as part of crossexamination. Counsel may regard it as correct also to challenge credibility on essentially peripheral matters or to emphasise the lateness of a complaint rather than asking detailed questions on the nature of the alleged offence. In other cases, attention may be focused on how a complaint came about or whether suggestion may have generated details. What is required on appeal is an overall analysis of the case on the entirety of the evidence. Since so many decisions may legitimately be made by counsel, identification of what is supposed to amount to be incompetence must be specifically identified in what is a wholly exceptional jurisdiction; R v Clinton. A standard must be set. Although The People (DPP) v O’Shea [1982] 384 was concerned with a trial judge out-ruling evidence, so that a jury in coming to a conclusion would consequently be acting on only part of the evidence, the observations of O'Higgins CJ at 405 contain a statement of principle:

It should be remembered that the Constitution is concerned with justice and, in the context of this case, with criminal trials being fairly conducted in due course of law. While these considerations provide safeguards for the person accused, they also guarantee to the State which accuses him, and which has a duty to detect and suppress crime, that he will be tried fairly and properly on the evidence adduced against him and in accordance with law. If, as a result of an error made by the trial judge, the jury is not permitted to consider the evidence or the charge brought against an accused or to pronounce on his guilt or innocence, can it be said that justice has been accorded to the State and to society? In my view, it cannot and, if this be so, a situation would exist which the Constitution prohibits.

31. In that context, counsel appear in a case to sift out what may be of importance in the prosecution and defence cases, to consult factually so as to have the instructions of the accused and to pursue that factual case with relevant witnesses. Hence, advocates appear in a criminal case in order to test the factual evidence adduced by prosecution witnesses and to challenge it with defence evidence if available or by relevant questions to relevant witnesses based on the instructions of the accused. Of course, a question is not evidence only the answer is; but a question may raise a doubt as to the reliability or veracity of what a witness is saying. Therefore, any evidential material, whether it comes from the client or the prosecution, must be assessed to see if it can damage the prosecution case or strengthen the defence case. If the accused has provided evidential material, including instructions in consultation, it will have to be considered and where necessary discussed with the client. Counsel has a wide area of professional judgment and may often come to a reasonable view that the accused is overestimating the significance of particular material or underestimating the prosecution evidence. However, if it would in fact help the case, and is not inconsistent with a strategy already embarked upon, counsel must ordinarily ensure that it is put before the court in an appropriate way. That includes the obligation to put it to the relevant prosecution witness. If this is not done, the accused may justifiably feel that his defence has not been put to the court.

32. Hindsight is a counsel of perfection and many barristers think that the best question is the one that came into their heads when the case was over; others consider that questions to which the answer is not known are dangerous and others seek counsels of perfection in minimum intervention. In many cases, experience will demonstrate that an acquittal is unlikely without the benefit of an accused’s testimony to the jury while in others calling the accused may be adjudged dangerous. Whatever the approach, circumstances will differ and the range of decisions that might be made is ample. An accused who is advised to give evidence may be unwise to enter the witness box and one advised to not testify but rely on testing the prosecution case on the basis of his or her instructions is entitled, nonetheless, to give evidence. Once the matter is discussed, the decision is that of the client and not that of the lawyers advising. As O’Connor J said in Strickland v Washington, an analysis of the point claimed to be incompetence may be dismissed on an initial stage as one that could have made no difference to the outcome of the trial. Thus there is a wide margin of appreciation to be afforded to decisions made by an accused’s advocate. 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. This standard is set in the judgment of Keane CJ in The People (DPP) v McDonagh (2001) 3 IR 411 at 425:

It has already been noted that, when delivering the judgment of the court on the hearing of the second interlocutory application in this case, Murray. J 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. That view is clearly 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.” 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.

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. As was pointed out by Rougier J., giving the judgment of the English Court of Appeal in R v Clinton [1993] 1 W.L.R. 1181, 1188:-

“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.”

33. In The People (DPP) v Doherty (Court of Criminal Appeal, unreported, 26 February 2009), Macken J added that on an appeal 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.

20. Nothing in the transcript reveals any matter whereby there could be any suggestion of a failure of representation on behalf of the appellant. The opposite is what manifests.

The judge’s charge

21. The judge’s explanation of what an assault is, the external and the mental elements, was exemplary as was the concise definition of recklessness offered. This was, however, an intentional action. That too was explained. An assault may be defined in one section, as in the 1997 Act, and an increased sentence provided in another where there is an aggravation. The law was properly stated by the trial judge. Other points

22. It is not necessary for an appellate court to traverse every point made on appeal. There were a series of assertions made which it is not necessary to address. Time for making submissions should be set based on the complexity of the case and on the importance of the point argued in terms of the need of the court to address an issue of law for the guidance of trial courts. This was a case where strictly limited time was appropriate.

Result

23. The appeal is dismissed. What was involved here was an enraged attack on a person fulfilling a difficult duty. In the particular circumstances, the sentence has no value as precedent. The Court has not been asked to review the sentence as unduly lenient.