Court of Appeal dismisses appeal against directed acquittal, upholding trial judge's refusal to discharge jury.

THE COURT OF APPEAL

[2025] IECA 308 Court of Appeal Record Nos. 20/23 & 18/23 McCarthy J Kennedy J MacGrath J

BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT -AND-

PHILIP DISNEY

-AND-

SEÁN CARLYLE

APPELLANTS JUDGMENT of the Court delivered on the 16th day of December 2025 by Mr Justice Patrick McCarthy

1. On the 16th of December 2022, the appellants were each convicted of the murder of Vincent Parsons.

Factual Background

2. The incident which led to Mr Parsons’ death occurred on the 24th of August 2019. On that night, the deceased attended an informal stag event at the Killinarden Inn in Tallaght with a number of friends including his brother and cousin. Both appellants were also socialising in the pub.

3. As part of their investigation, gardaí obtained CCTV footage from the pub which showed a heated interaction which had occurred between Mr Disney and the deceased, watched by Mr Carlyle, shortly before 11 p.m. The footage showed Mr Disney gesticulating in the direction of the deceased. Other patrons, including the deceased’s brother, sought to diffuse the situation and Mr Disney had to be restrained from approaching the deceased.

4. The late Mr Parsons, as seen on CCTV footage, ran from the premises shortly afterwards.

The evidence was that he was not familiar with the area; his movements could be seen on CCTV as far as a green area but he ultimately disappeared from view there.

5. Within a minute of his departure, Mr Disney exited the premises and initially walked in the direction in which the deceased had run. Immediately thereafter, Mr Carlyle also exited the premises, and the pair then entered Mr Carlyle’s van which was in the vicinity: Mr Carlyle sat in the driver’s seat and Mr Disney in the front passenger seat. The van was driven in the direction the deceased man had travelled.

6. CCTV footage obtained from Killinarden Way showed the van was driven into close proximity of the deceased. The van stopped at the green area and the deceased man could be seen running away in a direction which ultimately took him out of view. Both appellants exited the van and ran after the deceased, again, out of view of the CCTV footage – the violent incident which occurred was not captured. Both appellants were seen returning to the van approximately 48 seconds after they had exited, emerging into view from the place into which they had been seen to go when following the deceased.

7. The deceased was subsequently found by passers-by in a place just off camera, consistent with his movements as seen on the footage. Gardaí found him in an unresponsive state, and he was bleeding extensively. He sustained a number of external injuries and broken bones which were concentrated on his head and face. The evidence of the pathologist was that he had sustained five or six blows to his head; no other parts of his body were injured, and he had no defensive injuries. The cause of death was established to be “hypoxia due to cardiac arrest caused by haemorrhage in the airways due to craniofacial trauma”.

8. Gardaí searched Mr Carlyle’s house under warrant at approximately 6 a.m. on the 25th of August 2019. During the search, Mr Carlyle was observed to have a bloodied injury to his hand and when asked about this he stated he had suffered the injury whilst boxing explaining, on further enquiry, that he wore ‘wraps’ and not gloves. A pair of shorts were found in the area in which Mr Carlyle slept. Subsequent forensic analysis established that blood found on them was that of the deceased.

9. The van was traced to the vicinity of Mr Carlyle’s house where two men were seen, again on CCTV footage, exiting it; an individual returned to it and drove it a short distance away from Mr Carlyle’s house, thereafter leaving it. They returned to the pub in a vehicle owned by an associate (the said associate could be observed in their company prior to their earlier departure from the premises). When gardaí searched the van, they located a watch belonging to the deceased man in a door well on the front passenger side of the van.

10. Gardaí also searched Mr Disney’s house and sought the clothing that he had been wearing the previous evening. Mr Disney provided a pair of shorts and runners to gardaí on the basis that he had so worn them; however, these were not the articles of clothing he had been wearing the previous evening. The clothes actually worn by Mr Disney on the night of the incident were never recovered.

11. Conversations took place between gardaí and the respective appellants either during searches or otherwise in the course of their investigation to which we return below. In the course of Mr Carlyle’s detention, the so-called inference provisions under sections 18 and

19 of the Criminal Justice Act 1984 (as amended) were invoked. Grounds of Appeal

12. Philip Disney appeals against his conviction on the following grounds:—

1. The learned trial Judge erred in law or in a mixed question of law and fact in admitting a CCTV montage into evidence by judgment delivered on the 17th day of October 2022 (“pre-trial judgment”), following a pre-trial hearing on dates between the 4th and 29th July 2022 held pursuant to the Criminal Procedure Act 2021 (“pre-trial hearing”).

2. The learned trial Judge erred in law or in a mixed question of law and fact in admitting identification/recognition evidence to be led by the prosecution.

3. The learned trial Judge erred in law or in a mixed question of law and fact in the course of the aforementioned pre-trial judgment in admitting evidence of a search of the accused’s home, 30 Donomore Crescent, which occurred on the 26th day of August 2019. Without prejudice to the generality of this ground, the learned trial Judge erred in determining that: the search warrant was lawfully issued; what occurred during the search did not go beyond the enabling statutory provisions; the appellant was lawfully detained and; the search was not conducted in breach of the basic fairness of procedures and (where an interrogation ensued without appropriate safeguards). Thus the clothes seized and the interactions with Sgt. Palmer during the search should not have been led in evidence.

4. Without prejudice to the foregoing, the learned trial Judge erred in law or in a mixed question of law and fact in admitting the responses of the Accused allegedly made to Sgt Palmer in the course of the aforementioned search and the Court also erred in admitting the questions asked by Sgt Palmer into evidence.

5. The learned trial Judge erred in law or in a mixed question of law and fact by his ruling on the 21st day of November 2002 refusing the Accused’s application for a separate trial.

6. The learned trial Judge erred in law or in a mixed question of law and fact by ruling that the contents of the prosecution commentary on the CCTV montage could be led before the Jury.

7. Without prejudice to the foregoing, the learned trial Judge erred in law or in a mixed question of law and fact in his ruling on the 30th day of November 2022 permitting the prosecution to play clip No. 30 from the CCTV montage.

8. The learned trial Judge erred in law or in a mixed question of law and fact by failing to discharge the Jury and/or a particular juror when a member of the Jury made known to the Court on the 2nd day of December 2022 that he or she recognised the name of a deceased member of An Garda Síochána centrally connected with the investigation, as he was a friend of her husband’s brother.

9. The learned trial Judge erred in law or in a mixed question of law and fact in his ruling of the 12th day of December 2022 which allowed the prosecution to lead evidence from Detective Inspector John Walsh relating to Garda Investigations into an individual, other than the two accused ultimately charged.

10. The learned trial Judge erred in law or in a mixed question of law and fact in his ruling of the 13th day of December 2022 in refusing the Accused’s application for a directed acquittal with respect to the charge of murder.

11. The learned trial Judge erred in law or in a mixed question of law and fact in permitting the Jury to receive, at its request, that portion of the charge dealing with join enterprise, without excising therefrom the final two paragraphs.

12. In all the circumstances the leaned Judge’s charge was thereby deficient in this area (joint enterprise).

13. The trial of the appellant was not conducted in due course of law as guaranteed by Article 38.1 of the Constitution and/or the Appellant’s right to a fair trial as guaranteed by Article 38.1 of the Constitution and Article 6 of the European Convention on Human Rights was violated due to the repeated and unexplained failures of the prosecution to make timely or proper disclosure of the evidence and other materials.

14. Such further or other grounds as this Court may permit upon application made by the Appellant herein.

13. Seán Carlyle appeals against his conviction on the following grounds:—

1. The learned trial judge erred in his pre-trial ruling surrounding admissions allegedly made by the Appellant.

2. The learned trial judge erred in his pre-trial ruling surrounding inference interviews.

3. The learned trial judge erred in his pre-trial ruling related to the identification of the accused and the identification process in general.

4. The learned trial judge erred in his trial ruling by dismissing the accused’s POC application and the grounds upon which it was based.

14. In both cases a number of the grounds pertain to pre-trial rulings, and others to the trial itself. Since there is a degree of overlap it is not possible to preserve a complete separation between the appellants. In particular, legal issues arising pertaining to what we characterise as ‘search issues’ in the case of Mr Disney have some similarity with those arising on Mr Carlyle’s case (notwithstanding the absence of a freestanding ground of appeal by the latter on that topic). We should pause here by way of explanation and say that a number of the issues so raised by Mr Carlyle are advanced under ground no. 4 (the so-called P O’C application) but no procedural objection has been taken by the respondent. Two issues common to both arise. First, the application to discharge the jury and, second, (to put the matter shortly) a condemnation of the trial process itself because additional evidence was served during the course of the trial on what is said to be a large number of occasions.

15. We will deal with the latter as a preliminary, so to speak, because it is so clear that it is unfounded. The following applies to both appellants. First, given the preliminary issues and the trial proper the number of Notices identified (28) is not of particular significance (if mere numbers are ever so). There is no suggestion of any kind that anything fundamental to the defence was furnished which would, say, have changed the nature of the trial. There was no application for a discharge. There is coercive authority for the proposition that there is no difficulty about the service of new evidence during trials and this case proceeded in the ordinary course. There is no conceivable prejudice. We therefore reject ground no. 13.

16. In Mr Disney’s case, there are no submissions in respect of grounds nos. 2, 6, and 9 so we proceed on the basis that they are not being pursued.

The Appeal by Mr Disney

17. The pre-trial issues now in actual or real contest in the appeal can ultimately be boiled down to these: the admission of a certain portion of CCTV footage taken from a house in Killinarden Estate referred to as ‘DS1’ as part of a montage made up of relevant CCTV footage from a number of homes and businesses with a view to showing the events of the night; the admission of the so-called ‘Clip No. 30’ from CCTV footage from the pub showing Mr Disney’s conduct after he returned there (together ‘The CCTV Issues’); and issues pertaining to the search (to include the submission that the information sworn to ground the search warrant was inadequate and that an exchange between Detective Sergeant Palmer and this appellant, whereby clothing was identified and seized, was inadmissible)

(‘The Search Issues’).

18. The issues pertaining to the trial raised by both appellants relate to an application to discharge the jury (‘The Discharge Issue’), and in Mr Disney’s case a refusal to grant a directed acquittal in respect of murder on the merits of the evidence (‘The Acquittal Issue’), and alleged deficiencies in the judge’s charge regarding joint enterprise (‘The Judge’s Charge Issue’), by reference to the written instructions given by the judge to the jury after the charge proper.

19. The refusal of the judge to grant Mr Disney a separate trial is criticised. Again, as a preliminary, so to speak, we deal with that at this stage.

20. The case is made that the fact that evidence was given against Mr Carlyle of his response when the provisions of sections 18 and 19 of the Criminal Justice Act 1984 (as amended)

were invoked when he was interviewed by gardaí gave rise to irremediable prejudice against Mr Disney. It is said that the propositions put by gardaí, or questions asked when they invoked those provisions, referred to factual matters (e.g. the fact that the deceased’s watch was found in the van) which were of evidential significance against Mr Disney. It is also submitted that the fact that the interviews with Mr Disney were not given in evidence in some way buttressed the proposition that he was prejudiced.

21. We simply cannot see the latter proposition as having any rational basis. There is no suggestion that anything he may or may not have said to gardaí, or anything otherwise pertaining to his dealings with gardaí when being interviewed, could not have been put in evidence just because one of the gardaí involved was deceased. What the proposition amounts to is that even though a joint trial could take place if, say, one co-accused implicated another in his statement (as would be the position in the ordinary course of events), just because factual matters relevant to the entirety of the case against both were referred to in the course of garda interviews with one accused, a separate trial was essential. We agree with the prosecution when they point out that applications for separate trials are sometimes made because of what one accused has said about another. In this case nothing was said, but still it is suggested there was prejudice. We agree with the judge when he said, as pointed out by the prosecutor, that: “if this was good grounds for a separate trial then this would have to take place in every case in which one accused had said something and a different accused had not”, to say nothing of cases where something adverse to a co-accused was in fact said. The default position is that in respect of crimes committed in the course of a joint enterprise, the case proceeds against all accused together and the jury are told that it is dealing with a multiplicity of trials and that evidence against one party is not admissible against the other. This was explained to the jury. There was no requisition as to what the judge said in this regard. There would have been no basis for one, and it is surprising to see some implied criticism at this stage. This case is about as good an example as one could get of the necessity for a joint trial so that justice can be done.

22. We therefore reject ground no. 5.

The CCTV Issues

23. Counsel for the appellants had objected simpliciter to the admissibility of the entire montage. The People (DPP) v. Dunbar [2024] IECA 85 resolves the general or fundamental point that CCTV footage from private systems harvested by An Garda Síochána is admissible; it is now established beyond debate that this is the case. However, a second, narrower, point arises: this appellant, having rightly abandoned the former, contends that the judge erred in his ruling about exhibit DS1; this is specifically by reference to The People (DPP) v. A. McD [2016] 3 IR 123. Counsel submitted, inter alia, that the provenance of this footage was not proved on the basis that the system was not well-maintained and the supposedly limited evidence regarding the accuracy of the footage; he also criticised the fact of reliance on garda radio to establish the accuracy of the time shown on the footage.

(A proposition which may be said to include the criticism that the persons in control of the cameras from which the footage was taken were not called.) The contentions can be seen in more detail from the judge’s ruling which we set out below. Accordingly, the only issue now is whether the footage known as DS1 does not meet the requirements for admissibility articulated in A. McD as properly understood.

24. Counsel for the respondent submits that the issues of reliability, credibility, and weight raised by Mr Disney were matters for the jury and cited The People (DPP) v. Aaron Brady [2024] IECA 170 in support of that submission. He submitted that even if there were issues in relation to the provenance of the DS1 footage, the movements of the deceased and appellants are traced in a manner consistent with DS1 by other footage within the montage and that all this evidence was relevant to the jury’s assessment of the reliability of the DS1 footage.

25. All of what the judge said in relation to the admissibility of the footage applies, by definition, to DS1. We think it necessary to quote certain relevant parts of the ruling as follows:

“The first argument is that there is no evidence from the majority of the individuals responsible for the CCTV systems from any of the premises from which CCTV was recovered, that the relevant systems were functioning, were the relevant systems were functioning on the date and at the time the recordings were made, to exclude the possibility of interference between the making of the recording and its seizure by the gardaí. The accused further argued that there is no evidence before the Court that the CCTV systems were properly maintained or that the functioning observed at the time of seizure was consistent with the functioning at the time of recording. They also say there is no evidence to exclude the possibility of interference between the time the recording was made and its seizure by the gardaí.”

and then said:

“The accused rely on the decision of McKechnie J in DPP v. A McD to support the submission that there is a need to prove the provenance of each clip of CCTV footage.

To quote Mr Justice McKechnie: ‘To account for its history from the moment of its recording until its production in court, this is to exclude the possibility that it may have been interfered with.’”

He went on:

“That authority […] does not, in my view, go as far as contended for by the accused.

It is undoubtedly the case that the Court must be satisfied before admitting the CCTV montage into evidence in the trial that each of the clips were recovered from original footage recorded at a particular time and place. It is, of course, for the jury to decide whether or not the images proved what the prosecution contend for and would be entitled to have a reasonable doubt if they, the jury, were not themselves satisfied to the requisite standard of proof that the footage is of events that took place at a particular place and time.”

and:

“… in my view, the governing principle expressed by McKechnie J is that a trial judge must be satisfied on the application to exclude CCTV footage that a particular clip or piece of footage had been interfered with other is otherwise so unreliable that it cannot be left to a jury to consider, must be excluded. I do not understand, and it is not contended for by the accused, that the Court in DPP v. A McD intended that evidence should be excluded because the gap in the chain of evidence, or even a substantially incomplete chain of evidence, and circumstances where a trial judge is, for reasons based on other evidence or because it features inherent in any piece of evidence in issue, entirely satisfied that the evidence before the court is what the prosecution say it is to a sufficient degree to allow it to go before a jury.

I accept the prosecution submission that the issue of whether a piece of evidence is what the prosecution contend is ultimately a matter of fact for the jury, that the trial Court has a role in ensuring that provenance has been established to a sufficient degree that a jury would be entitled to conclude that the evidence is what it is presented as being. The issue of provenance should, in respect of the CCTV footage in the instant case, be adjudicated upon based on the entirety of the evidence, including the chain of evidence and the content of each CCTV clip looked at in isolation. Where one clip is part of a series of related clips it should be looked at in that context. The CCTV footage should also be considered in relation to the rest of the evidence as a whole. The fact that there may be a gap in the formal chain of evidence does not mean that a piece of CCTV is necessarily rendered inadmissible once the Court is satisfied that the footage captured is what the prosecution say it is.”

He went on to deal with the facts:

“Taking that approach to the issue and based on the evidence before me, I'm entirely satisfied that each clip of CCTV footage in the montage is what is presented by the prosecution as being sorry, is what it is presented by the prosecution as being. I'm satisfied that the clips are copies of original footage recorded at the places contended for. Corrected times have been given in evidence to the Court and although there appear to be some errors in the calculation of those times, I am nonetheless satisfied that the footage was captured during the relevant period of time and that the sequence in each in which each clip was presented to court corresponds with the sequence in which the contended for events took place.

The accused also maintain that because there is no evidence from individuals responsible for the CCTV systems that the systems sorry, because there is no evidence from any individuals responsible for the CCTV systems that the systems were functioning properly at the time of seizure, that they have been properly maintained and that the functioning observed at the time of seizure was consistent with the functioning at the time of recording and that provenance, in that regard, has not been established. CCTV footage is a species of real evidence which the criminal courts receive very frequently. The practical mechanisms by which such footage is recorded and stored are well understood by most people in the modern world. The Court can therefore apply its own practical experience of CCTV recording systems when deciding whether or not there is a reasonable possibility that a particular piece of footage was interfered with or altered from its original form prior to coming into possession of the gardaí” [our emphasis].

26. Again, the ruling is so clear that there is little we can add. Given the repeated and unfounded opposition to receipt of evidence of this type by reference to provenance we do, however, take the opportunity to repeat that the prosecution do not need to adduce evidence in the nature of a so-called ‘chain of evidence’ (which is not of course a term of art) in some mechanical fashion by calling a succession of witnesses through whose hands an exhibit has passed – although proof may be established thereby – whether before or after seizure. This is because provenance (that is to say, that the actual footage produced in court as a piece of real evidence is what it purports to be e.g. footage from a particular place or time showing something relevant) is capable of being proved like any other fact by, say, circumstantial evidence or inferences of secondary fact. Thus, it is not of course essential in principle to adduce evidence from the party who had control or possession of the footage or as to its state (e.g. as to times or maintenance) though this will often be done. In many cases so-called provenance will be clear from the footage itself on a freestanding basis. One must bear in mind that the core issue is whether or not whatever is harvested by way of CCTV is relevant – the primacy of the jury is fundamental. The provenance can be seen from the events which it shows in the context of the remaining evidence including the preceding and succeeding pieces of footage. We do not understand it to be the case that the proposition that times cannot be taken from a garda radio to be seriously pursued – if it is, then it is without merit.

27. We therefore reject ground no. 1 (as it now arises in its more limited form).

28. We should say that we question whether the foregoing issues as to CCTV were in any event properly the subject of a voir dire (whether pre-trial or otherwise); it is only in very rare circumstances that a judge will decide on admissibility because it is a jury matter. In any event, and more generally, this adjudication process does not exist for the purpose of affording either party a ‘dry run’ in relation to the evidence which is proposed. If there are certain conditions precedent to adducing a given type of evidence, apart from the fundamental condition of relevance, the appropriate course is for the prosecutor to adduce the evidence before the jury in the ordinary way and if, ultimately, having introduced the evidence, he fails to come up to proof, adverse procedural consequences may follow for the prosecution. A competent prosecutor will have to decide whether or not he will be able to come up to proof before adducing the evidence before a jury. This does not afford a basis for a preliminary ruling. Indeed, on a preliminary ruling (presumably sought by the defence)

the prosecutor might be permitted to re-open his case if or when an evidential deficit is identified in order to fill up a crucial gap, so to speak. It seems to us that in recent times what has sometimes occurred is that the defence have indicated that they contend given evidence inadmissible and what is in truth a dry run takes place. In our experience this inappropriate process is resorted to when it should not.

29. A different issue arises where Clip No. 30 is concerned. It is a piece of CCTV footage (played without comment) captured within the Killinarden Inn after the assault of the deceased which appears to show Mr Disney perform certain movements with his feet, characterised by the judge as showing this appellant: “dancing, jumping around and raising his hands on camera”.

30. We might point out first that the judge ruled that commentary on the footage in evidence by a garda acting as an expert ad hoc as to what it demonstrated Mr Disney doing was held inadmissible. We are concerned accordingly only with the footage itself.

31. Essentially the parties’ submissions are the same here as in the trial court: defence counsel in effect submitted that, in the context of the suggestion that the deceased man might have been kicked, the jury might infer that this was a recreation of the event alleged. Needless to say, if a jury could properly conclude that that it was a demonstration of what Mr Disney had done or seen done these would be excellent reasons for its admissibility and not the opposite. No one suggested this inference could be drawn on viewing the footage. It was said that even on the basis upon which the prosecution sought to put it in, the prejudicial effect outweighs its only probative value. It was contended that what was identified as the probative element, as articulated by the prosecution, was already established by four other pieces of footage in the montage showing events in the pub after the appellants returned to it and that it was accordingly unnecessary to play Clip No. 30.

32. The respondent submitted that Clip No. 30 was relevant evidence of Mr Disney’s demeanour in the aftermath of the commission of the offence. Counsel submitted that because the prosecution evidence established that both appellants pursued the deceased man off camera and subsequently returned to the van it was potentially open to each appellant to argue (or call evidence) that only one of them had assaulted the deceased man and that the other had not assisted or encouraged the act in a way which would make him criminally culpable. He further submitted that the relevance of Clip No. 30 was that it established that Mr Disney was in good spirits and dancing in the pub in the vicinity of Mr Carlyle, whereas he postulated that were it the case that Mr Disney was not a participant in the assault one would expect his demeanour “to reflect his revulsion at watching Mr Carlyle beat the deceased to death”.

33. The judge ruled on the admissibility of Clip No. 30 in the following terms:

“Well, in the first instance objection is being taken to a clip, which is described in the narrative as Mr Disney, dancing, jumping around and raising his hands on the camera shot and in good spirits. The potential relevance of it is that this is an event that takes place, on the prosecution case, after the death of the deceased, which, again on the prosecution case, both accused were involved in. Central to the prosecution case is an association between the accused and the prosecution seek to rely on the relevant clip, which is clip 30 to establish that Mr Disney was not merely happy to be in Mr Carlyle's company on the journey back but remained in his company in the pub itself, and that his conduct in the pub was such that he was perfectly happy to be in his company. To my mind that is evidence, which is relevant and admissible in the first instance. And the question is whether or not the prejudicial effect outweighs the relevance and admissibility. In other words I'm satisfied that it has probative value beyond the other clips, which are clips of association prior to returning inside to the pub. I'm satisfied that any prejudicial effect is no more than flows naturally from the evidence and the conduct of the accused. Insofar as the jury shouldn't draw any inference about what was being said, I agree that that is so, and that can be said to the jury. His own counsel will presumably say it and for the avoidance of any doubt, I can say it as well. But I'm satisfied that the evidence is probative, that it's probative beyond the contents of the clips that show the two parties travelling together and I'm satisfied that the conduct of Mr Disney is probative to a point that any prejudicial effect based on what might have been said doesn't outweigh its probative value, given the prosecution case is one of common design and they want to establish that the accused were happy to be in one another's company after what happened. I think it's important for the jury to get a complete view of what is said to have happened between the parties before and after the incident. … because prejudicial effect means a relevant prejudicial effect and I'm not satisfied that any potential or relevant prejudicial effect is outweighed by the probative value. So I'll admit the clip.”

We think the judge was right in fact and law. Again, we cannot see how we can add anything save this: we know of no rule of law that otherwise admissible evidence is capable of being excluded just because there is other evidence tending to prove the same fact.

34. We therefore reject grounds nos. 1 and 7.

The Search Issues

35. On the 26th of August 2019 one Detective Sergeant Shay Palmer swore an Information before a judge of the District Court and obtained the warrant to search this appellant’s home. On arrival there he observed Mr Disney in the vicinity of the address socialising with friends. He identified himself to Mr Disney, explained that he had a warrant to search the premises, and requested that Mr Disney accompany him inside the house; Mr Disney did so. Inside, he explained the warrant to Mr Disney and outlined that gardaí were investigating a serious assault and were looking for evidence in relation to that offence – specifically, the clothing worn by Mr Disney the previous Saturday evening. He said that he asked Mr Disney whether he wished to point out or provide the relevant clothing to the gardaí, and that Mr Disney agreed to do so. Detective Sergeant Palmer stated that he accompanied Mr Disney to an upstairs bedroom whereupon Mr Disney pointed out two items of clothing to him: a pair of shorts and a pair of white and grey canvas runners. According to the account given by Detective Sergeant Palmer, both men then returned to a downstairs living room, and he asked Mr Disney whether he wished to give an account of his movements on the previous Saturday night; Mr Disney declined to do so.

36. In his written submissions on appeal, counsel for Mr Disney stated that four grounds were advanced in support of the contention that evidence relating to this search should be ruled inadmissible. He summarised those grounds are as follows:—

A. The search warrant was unlawful in that insufficient information and detail was given to the District Judge thus depriving him of his full jurisdiction;

B. What occurred and the search went beyond what was permitted by the statutory provision pursuant to which the warrant issued (in particular in relation to questioning the suspect) [i.e. the request from a garda to him for the clothing which he had been wearing the night before];

C. The manner in which the search was conducted was fundamentally unfair and a disproportionate interference with the enjoyment of Constitutionally and Convention protected rights namely the right to silence and the privilege against selfincrimination;

D. The evidence of the seizing of the clothing should not be admitted as it did not satisfy the tests of being more probative than prejudicial.

We pause here, so to speak, to dispose of one point. We think the proposition that the prejudicial effect of the introduction to evidence of the clothing falsely stated by Mr Disney to have been that which he was wearing on the night of the physical assault was more prejudicial than probative is not stateable. We will accordingly not deal with that aspect of matter in greater detail.

37. We think that counsel for the respondent rightly characterised Mr Disney’s appeal on the search issues as being advanced under two overarching submissions: firstly, that the information grounding the warrant was insufficient and, secondly, that Mr Disney was effectively questioned by gardaí during the ensuing search.

38. In any event it was and is submitted that the evidence of what was said vis-à-vis the identification of clothing in response to an enquiry was inadmissible for these reasons:

“i. The contemporaneous note contains an entirely different account of a supposed conversation with the accused;

ii. The sequence of the conversations between Garda and accused is not consistent with his evidence;

iii. Neither his contemporaneous notes nor his first statement mentioned his desire to seek out specific clothing;

iv. His evidence that he would have cautioned the then suspect had he incriminated himself is not supported by his actions and, in any event, constituted an approach which the law should not countenance as it was wholly inadequate when the requirement to observe/ensure that some safeguards in the process are in place is considered;

v. His own evidence referred to his lack of recall when questioned about whether he had been asked questions by the District Judge, the witness noting it being three years ago.”

39. Counsel for Mr Disney submitted that the enabling statutory power, section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, does not permit questioning of a suspect and must be construed strictly in accordance with the right to privacy, inviolability of the dwelling, and right to a fair trial protected by the Constitution and the European Convention on Human Rights (‘ECHR’). He referred us to Habte v. The Minister for Justice and Equality [2020] IECA 22 and The People (DPP) v. O’Flaherty [2023] IEHC 625 to support the proposition that a power to interview or question a suspect could not be implied into the power of search provided for by the aforementioned statute because it is not incidental to the lawful application of the power of search.

40. There is no suggestion here that such a warrant gives rise to a power to interview or question a suspect whether expressly or by implication. First of all, nothing in the nature of an interview as commonly understood took place. That proposition is simply irrelevant.

Counsel for Mr Disney refers to the fact that while section 10(2) of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides authority to enter, search and seize evidence under a warrant issued pursuant to that Act, subsection 3 provides that it shall be an offence to, inter alia, obstruct a search, fail to comply with a garda request, or provide what a garda has reasonable cause to believe to be false details. The conferral of these powers or the creation of that offence cannot impinge on the entitlement of the gardaí to ask questions, if anything it merely creates a criminal offence in certain circumstances during searches.

41. One thing these decisions do not do is prohibit a garda whose duty is to investigate crime from asking questions in the course of a search provided that, where otherwise appropriate, he cautions the individual to whom he speaks under the Judges’ Rules – there was no necessity to caution here under the Rules; in particular there was no evidence of a decision or intention to arrest. Apart from that general proposition, and again subject to compliance with the Judges’ Rules, it is certainly unobjectionable in order to minimally invade the dwelling under warrant to ask the relevant individual about what was, as can be seen from the Information, the property of primary interest vis-à-vis the highly specific identification of the clothing.

42. Counsel contended that national law and ECHR rights require searches to be accompanied by safeguards and conducted fairly. It was submitted that for any interference with a suspect’s right to silence or privilege against self-incrimination to be justified or proportionate it must also be accompanied by appropriate safeguards as per the dicta in Heaney v. Ireland [1996] 1 IR 580 and Rock v. Ireland [1997] 3 IR 593. He cited the cases of R (Roberts) v. Commissioner of Police of the Metropolis & Anor [2015] UKSC 79 and R (Gillan) v. Commissioner of Police of the Metropolis [2006] UKHL 12 in support of the proposition that public officials may not interfere with ECHR rights by exercising their power for a purpose other than that for which that power was conferred. By virtue of these authorities, counsel contended that questions of the kind put to Mr Disney during the search by Detective Sergeant Palmer should only be permitted in circumstances where they are preceded by the administration of a caution or where a suspect is otherwise informed that they are not obliged to answer. He submitted that such a requirement ought only to be dispensed with in exceptional circumstances which, in his submission, did not exist in the present case. We reject this proposition: respect for these principles does not require the

introduction of a caution to a suspect merely because questions are asked during a search

– the ordinary or established Judges’ Rules afford a proportionate level of protection. We do not propose to accept a proposition which amounts to an additional Rule, namely that a caution must be administered when questions are asked in the course of searches.

43. Regarding the other submissions advanced by Mr Disney, counsel for the respondent submitted that these misconstrue what occurred during the search in an attempt to:

“… recast the facts of a search into a detention / questioning type situation so as to invoke the panoply of rights attaching to such situations and thus argue that, in the absence of the rights attendant on such situations, his decision to nominate items of clothing to the Gardaí ought to have been deemed inadmissible.”

He submitted that, in fact, Mr Disney was not ‘questioned’ at all but was rather asked if he wished to nominate the clothing he wore on the relevant night and he decided to do so. We agree with the prosecution view: there is no sense in which the question asked, or indeed the question asked and not answered, was of the character or type of interrogation or interview as commonly understood; it amounted to no more nor no less than a legitimate enquiry or request for assistance of the type contemplated by the Judges’ Rules.

44. We accept prosecuting counsel’s submission that it was permissible and appropriate for Detective Sergeant Palmer to ask Mr Disney to nominate the specific items of clothing being sought in order to ensure that the infringement of his constitutional rights be as limited and proportionate as possible. (He said that the alternative was that the house, which was shared with other persons, would be searched extensively and perhaps invasively in an attempt to locate the relevant clothing.) Regarding the proposition that Mr Disney ought to have been cautioned prior to be asked to identify the items of clothing, counsel submitted that Mr Disney did not say anything: he simply pointed at the clothing. We reject the latter point but that has no bearing on our conclusion.

45. Although counsel maintained his submission that it was not necessary to caution Mr Disney prior to asking him whether he would nominate the relevant articles of clothing, he submitted that even if this were found to be necessary that the height of Mr Disney’s case would be that a breach of the Judges’ Rules had occurred which would still permit the trial judge to admit the impugned evidence at his discretion. Counsel placed emphasis on The People (DPP) v. Conroy [2021] IESC 48 and The People (DPP) v. Gormley and White [2014]

2 IR 591 in support of his submission that the threshold identified by the Supreme Court for the various rights associated with detention was not reached during the search in this case because gardaí were at the early stages of an investigation which they were attempting to progress by obtaining the relevant clothing. This is a clear rule of law.

46. We think it is appropriate to deal briefly on a free-standing basis with the appellant’s submission about the actions of the gardaí during the search. Counsel for the appellant also submitted that the actions of the gardaí during the search offended against the Judges’ Rules. We think it is accordingly necessary to set out the text of the relevant Judges’ Rules as follows:—

1. When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained.

2. Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions as the case may be.

There is no evidential basis for suggesting that any garda had made up his mind to charge him when he was asked a question. The fact that there was a suspicion (and that must follow as a matter of reason) does not in any way necessitate the administration of a caution. No more need be said accordingly on this aspect.

47. It was suggested to Detective Sergeant Palmer that the Information was insufficiently detailed and potentially misleading in certain aspects. It was suggested to him that he ought to have informed the judge that the evidence gleaned from the search of Mr Carlyle’s address had not yet been subjected to DNA analysis, that the use of the phrase “the perpetrator alighted” suggested that only one person had left the van to perpetrate the assault, and that he ought to have told the judge that the witness who provided a description of the assailants was unwilling to make a formal statement to gardaí. Detective Sergeant Palmer did not accept that he ought to have informed the judge that the relevant evidence had not been forensically tested or that the witness was unwilling to make a formal statement; however, he did state that he erroneously used the singular form of ‘perpetrator’ instead of the plural in his sworn information.

48. During cross-examination, Detective Sergeant Palmer did not agree with the suggestion that Mr Disney was not free to leave during the search of the premises. He also denied that the true intention of the search was to conduct an ad hoc, off-the-cuff interview with Mr Disney. Although he accepted that he did not caution Mr Disney before putting the two questions he asked to him, Detective Sergeant Palmer stated that he would have cautioned Mr Disney had Mr Disney stated anything incriminating and would have taken him to a garda station had he wished to provide an account of his movements on the previous Saturday evening. Counsel for Mr Disney challenged Detective Sergeant Palmer on the accuracy of his account of how events unfolded during the search on the basis that the contemporaneous note recorded in his notebook said that Mr Disney ‘stated’ that he was wearing the items of clothing seized by gardaí and also because the enquiry about whether Mr Disney wished to provide an account of his movements was written down before the account of the seizure of clothing in the upstairs bedroom. In response, Detective Sergeant Palmer maintained that Mr Disney had indicated the relevant items of clothing to him in a non-verbal manner and that the detail of the events recorded in his notebook were not listed in sequence of how they actually unfolded.

49. The Information sworn for the purpose of seeking the warrant from the District Court stated, inter alia, the following:

“The basis for such grounds [i.e. his “reasonable grounds for suspecting that evidence was to be found at the appellant’s address”] are as follows: ‘..on the evening of the 24th of August 2019, at approximately 11 pm, Vincent Parsons, 10/1/85, was found lying on the green area between Killinarden estate and Killinarden Way. He had received head injuries and was removed immediately to Tallaght Hospital. It was quickly established that he had severe bleeding to the brain and was brought to ICU.

He has not regained consciousness and medical staff have advised the family that he has no chance of survival. Seán Carlyle, 4/10/1992, was identified as a suspect in this case. His house was searched and evidence gleaned suggested that Seán Carlyle was involved in this assault. It was also suggested by a witness that the perpetrator alighted from a black van that had 'Florists' or 'Flowers' written on the side of it.

Seán Carlyle owns a vehicle fitting this description. Moments before the assault, Seán Carlyle can be seen leaving the Killinarden House pub and it is believed that he gets into his black florist van in the car park. At this time, he was in the company of Philip Disney, 23/12/94, of 30 Donomore Crescent, Killinarden, Dublin 24. Philip Disney also fits the description of one of the suspects as described by the witness.

During the assault, the injured party did bleed at the scene. It is now hoped to search the home of Philip Disney to see if his clothing and other evidence can be secured from his residence.” [our emphasis].

50. Furthermore, counsel for Mr Disney submitted that The People (DPP) v. Quirke [2023] IESC

5 and Corcoran v. Commissioner of An Garda Síochána [2023] IESC 15 confirm that a District Court judge ought to be informed that a search warrant is intended to be executed in a certain manner in some circumstances. Counsel contended that the evidence established that Detective Sergeant Palmer intended to exercise this warrant to question Mr Disney, firstly, about his willingness to identify the relevant clothing and, secondly, to account for his whereabouts on the night of the attack on the deceased man. The judge rejected the former submission on the facts, as he was entitled to do, and there was a completely rational basis for doing so. The warrant was sought and issued for what it says:

a rudimentary step in an investigation. The submission has no basis in evidence.

51. Regarding the sufficiency of the information underlying the warrant, counsel for the respondent submitted that the information was not misleading. He said that the Information: “functionally summarised the prosecution case as advanced at trial” and was reflective of the evidence then available to gardaí. He submitted that the threshold to be met when applying for such a warrant is one of ‘reasonable suspicion’, which is a low one and is not concerned with fact-finding or adversarial inquiry. He submitted that the necessary threshold was reached and rejected the proposition that the garda ought to have informed the District Court judge that a witness to the event itself had declined to make a statement. There is no basis, it is submitted (and we agree), for this especially since warrants may be issued on the basis of confidential information where the source of that information remains unknown to the judge. The information, in our experience, was comprehensive and on any view afforded the District Court judge a basis for issuing it. The judge was not misled, and full disclosure of all relevant facts was made.

52. We hesitate to restate yet again (the authorities are exhaustive) what is required: the Information need not be exhaustive as to the information given but there is a duty of candour and the information given under oath must be sufficiently clear as to permit the judge to do the very thing essential before an invasion of someone’s rights takes place – act as an independent adjudicator between the police and the citizen before that can happen, and confidently act only on reasonable grounds. For the avoidance of doubt (and this was the way in which the judge dealt with the matter), Charleton J put the matter thus Quirke:

“What the common law authorities cited above emphasise are: the intervention of a judicial mind; the need for a statutory power; the conformance with the parameters of such power; the need to specify what is in reality sought; and the duty to use a power only for the purpose for which it is granted by statute. Such an approach is necessary to ensure that the manner in which a warrant is obtained, authorising a significant but proportionate and necessary infringement on privacy rights, remains a legitimate balancing exercise carried out by the issuing judge.”

In this instance, as otherwise indicated here, there was the highest degree of specificity of what the gardaí were seeking – the clothing. We do not think that there is any rule of law requiring the judge to be informed about how a warrant is to be executed – even if the gardaí had it in their minds (a proposition of which there is no evidence) to minimise the intrusion into the dwelling by asking a perfectly proper question. There may be circumstances in which what transpires in execution (we speak in principle) may raise issues as to whether or not the search was lawfully conducted. This is not such a case.

53. In his written submissions, counsel stated that the analogy drawn by Mr Disney between the search in this case and that in Quirke lacks an evidential basis and is precluded from being raised in this appeal as per The People (DPP) v. Cronin (No 2) [2006] 4 IR 329. He submitted that in Quirke it was established in evidence that the gardaí intended to seize digital devices and analyse them forensically, but did not inform the District Court judge of that intention; however, he submitted, there is no evidence that gardaí had an intention to question Mr Disney during the search and noted that such a proposition was not put to Detective Sergeant Palmer during cross-examination. Furthermore, while accepting that the judgment in Quirke was delivered after the trial in this matter took place, he said that the proposition that the garda had always intended to engage in questioning of Mr Disney

– and that the District Court judge ought to have been informed of this intention – was not advanced at the pre-trial hearing and, without prejudice to the foregoing submission, that he should be precluded from raising this point on appeal as per Cronin.

54. We are doubtful about the application of Cronin. We think, however, that there was no necessity to inform the judge when seeking the warrant that when executing it the gardaí might make an enquiry – if the subject was alluded to at all in the mind of the garda who swore the affidavit in any real sense. If anything, there was a high degree of specificity to what the gardaí wanted to try and find namely, the clothing. There was accordingly no analogy here with Quirke. The core point in Quirke is that if it is sought to invade the digital space say, by seizing a computer during the course of a search, it is necessary for the judge to be informed of this fact because of the nature of that space. That does not arise here.

The ordinary general rule as to what the judge must be told (as applied, indeed, in Quirke)

does, and we hold that the information was sufficient in that regard.

55. Similarly, regarding the argument that Mr Disney was detained by gardaí during the search, counsel for the respondent noted that there is no basis in evidence for the contention that Mr Disney was not, or felt not to be, free to leave.

56. The trial judge gave his ruling on the admissibility of the evidence arising from the search as follows:

“The next argument raised on the accused's behalf is that he was effectively interviewed by Sergeant Palmer when he was asked to identify the hand when he was asked to identify or hand over the clothes he was wearing on the evening in question and that, by doing so, Sergeant Palmer acted beyond the scope of the power conferred by the warrant, thereby negating judicial oversight of what took place.

In that regard, the accused relies on R Roberts v. Commissioner of the Metropolis and Another, CRH PLC, Irish Cement Limited and Seamus Lynch v. The Competition and Consumer Protection Commission and Byrne v. Gray. It is, of course, the case that a search warrant does not authorise gardaí, when carrying out a search, to conduct an interview with the suspect. That is, however, in my view, not what happened. The warrant authorised the gardaí to carry out a search for evidence relating to the offence under investigation. The specific purpose of the search was to find the clothing worn by the accused at a particular time and in order to secure that objective he was, in substance, asked to identify that clothing to them. That question was asked in furtherance of and in order to achieve the primary objective of the search. The request was, therefore, part of the search authorised by the warrant. The fact that, as argued by the accused, the gardaí would have been entitled to remove every item of clothing in the house and whether doing so would or would not have been an appropriate and or proportionate way of approaching the search is not really the issue.

As pointed out earlier, the request for the clothing was, in my view, not a ruse or a colourable device intended to trick the accused into implicating himself in the offence being investigated. Searches are often carried out in a dominant with a dominant or particular aim in mind such as locating and seizing a particular item or items.

Examples include targeted searches to locate controlled drugs or firearms. I'm satisfied that, for the purpose of conducting a search, especially in circumstances where the objective of the search is to locate and seize a particular or particular category of item or items, gardaí are permitted to ask the householder or other persons present to produce or identify the location of the item in question. That remains the case, even when the person from whom the enquiries are made may be a suspect. I, therefore, hold that a query of the kind made here can legitimately be made in furtherance of a lawful search.

The next submission made under this heading is that the enquiry made of the suspect was fundamentally unfair and a disproportionate interference with his constitutional protected rights to silence and the privilege against self incrimination. The argument is that the accused should have been cautioned before any enquiries were made of him, that a note of his response is made and that note read back to him. To a large extent, I've addressed that issue above having held that what took place was done in the context of the furtherance of the search. I am, however, also of the view that once gardaí are lawfully present on a particular premises, the general law governing interactions between gardaí and other persons, including accused, applies. There was, therefore, no requirement for the accused to be cautioned before being asked to identify the clothes he was wearing and there was no impediment to Sergeant Palmer asking the accused to identify the clothes without first cautioning him because no decision had been made had then been made to charge him with any offence.

I take the point that there would have been little purpose in cautioning the accused after he had incriminated himself but my understanding of Sergeant Palmer's evidence in that regard is that he would have cautioned the accused if the accused had made an actual admission or appeared to be in the process of doing so. Likewise, there was no legal obligation to make a note of the exchange and, in fact, on the evidence the accused may simply have pointed out the location of the clothes to the gardaí. A note of what happened was later made by Sergeant Palmer after the search.

It is also argued that in the circumstances what took place amounted to a breach of the accused's right of access to a lawyer. In that regard, the accused relies on DPP v. Raymond Gormley and Craig White and Salduz v. Turkey and the broader argument that the right of access to legal representation may be engaged prior to a formal search.

In the first instance, it is not the position in Irish law that gardaí cannot carry out a search or make enquiries of a person, including a suspect, in further of the objectives of a search or otherwise without first formally advising them of the right to seek legal advice. The case is not made by the accused that he wanted to contact a solicitor and there is no evidence before me that causes me to have a concern that gardaí would have prevented the accused from contacting his solicitor at any stage during the course of the search, had he indicated a desire to do so. I'm, therefore, satisfied that the conduct of the search did not breach any right of access to legal advice.

It is finally argued that the evidence of the finding of the clothes has no probative value because it is the identification of the clothes by the accused to the gardaí which, on the prosecution case, he was not wearing, that incriminates him. I do not think that is correct. It is the words and/or acts of the accused, in combination with the clothes he identified, together with other evidence of what the prosecution say he was actually wearing at the relevant time on the night, which taken together, on the prosecution case, would allow a jury to draw an inference adverse to the accused.

The clothes seized are themselves, therefore, admissible.

Whether or not the accused deliberately identified clothes he knew he was not wearing on the night and whether or not he thereby incriminated himself, as the prosecution contend that he did, is a matter of fact for a jury to determine at trial.

I'm, therefore, satisfied that what took place did not involve the breach of any of the accused's legal or constitutional rights and there was no unfairness involved in what occurred. I, therefore, refuse the application to exclude the clothes and the evidence of the interaction between Sergeant Palmer and the accused.”

57. We think that, again, in his ruling the judge has comprehensively dealt with every aspect raised under this heading and has done so rationally and correctly based on the evidence.

We really cannot add anything to what he has said. We therefore reject grounds nos. 3 and 4.

The Discharge Issue (relied upon by both appellants)

58. This ground is relied upon by both appellants, although the second appellant does so in a rather odd way. On the 2nd of December 2022, a note was passed from the jury to the judge. In that note, the juror informed the judge that he or she had recognised the name of a deceased garda during evidence given the previous day. The juror indicated that the garda in question was a friend of his or her brother-in-law’s and stated, “I did not know him and never met him, but I recognised the name”. The deceased garda in question was one Detective Garda O’Mahoney. Detective Garda O’Mahoney had been involved in the investigation of the offences in this matter, and the Court was informed that his death by his own hand occurred in circumstances connected to that investigation. The prosecution agreed not to lead evidence relating to Detective Garda O’Mahoney during the trial, and his name was not included on the list of witnesses that the prosecution intended to call which was read out to the jury; however, his name was mentioned during evidence given on the 1st of December 2022.

59. Counsel for Mr Disney applied to discharge the jury; he submitted that, on the basis of the information given to the judge by the juror, the extent of the juror’s knowledge was uncertain. The thrust of his submission was that it could not be excluded that the juror had knowledge of the tragic circumstances of the garda’s death and their apparent connection to the trial. His application was supported by counsel for Mr Carlyle.

60. Counsel for the prosecution opposed that application on the basis that the relationship disclosed by the note was too remote and that it did not follow from the information provided to the Court that the juror had knowledge of matters which were relevant to the trial. He further submitted that it was unlikely that the jury would consider the deceased garda to be a significant element of the prosecution case on the basis of the evidence being led.

61. The judge refused the application to discharge the jury on the 2nd of December 2022 in the following terms:

“Now, clearly the reason why I think I'm entitled to conclude the juror has brought this fact to my attention [that she recognised the name of Garda O’Mahoney] is because the juror is anxious to ensure that there is nothing wrong with the fact that she recognised his name and that he was a friend of her husband's brother. It's a juror who is clearly assiduous to ensure that the Court has no concerns about their impartiality. I take the point that if I had been told that by the juror at the beginning of the case, that juror would likely not have served on the jury. But that would have been out of an abundance of caution, it wouldn't have amounted to a conclusion that they were in fact not capable of acting.

The position now is all the jurors having been told that if they knew anything about this case, they should tell me at the beginning and I'm sure that they would have, is that I have no reason to believe that they knew anything about the case via the mentioning of the deceased garda's name. I take the point that the name now having been mentioned, perhaps they've remembered something about the case and I think that can be addressed by simply telling the jury now in general terms that if any of them have any concerns about their ability to act impartially at this stage of the proceedings, they should -- I am positively telling them that they should draw that to my attention. Otherwise, there is nothing to suggest that the juror will not act impartially. In fact, there is everything to suggest by the fact they have drawn this to my attention at this stage that they're very much aware of their obligation and duty to act impartially and that's why they have drawn it to my attention.

In addition, there will be no evidence from Garda O'Mahoney and it will simply be the fact of his passing might generate is no greater or less than it would ordinary be.

There will, of course, I expect be reference to him but in fact his participation in the case was of a kind that it is difficult to see how it would arise to any real issue of impartiality. So, in the circumstances, I'm satisfied that the particular juror can remain on the jury subject, as I say, by informing them that if they have any concerns of any kind as to why they cannot act impartially from now on, they should draw that to my attention and they should feel absolutely free to do so.

Subject to that, I see no reason why the particular juror who clearly is a conscientious juror and aware of their duty cannot continue to act. Given the relatively, not relatively in fact, the quite remote relationship, this is a friend of her husband's brother, it's not a friend of hers, it's not even a friend of her husband's. It's a friend of her husband's brother whose name she heard and recognised but she didn't know him and never met him. So, I have no reason to believe that there's any actual issue with impartiality on behalf of the juror whether it be a man or a woman or whoever it is. And therefore, logically of course it also follows in respect of Mr Condon's application, that I would have no reason to discharge this jury. And in fact, I cannot see any reason, I have to say, on that specific application even if the particular juror in question now indicated that they felt they could no longer serve on the jury, that it would follow that the rest of the jury should be discharged. So, in any event, I don't think there's any necessity to discharge the jury and I'll invite the jury at this stage to be satisfied that they are all happy that they can act impartially throughout the rest of the trial. And if they have any concerns on that front, they should draw to my attention.”

62. On appeal, counsel for Mr Disney submitted that, on the basis of the test established in The People (DPP) v. Tobin [2001] 3 IR 469, the judge erred by refusing the application in this case. He submitted that the threshold for discharging the jury established in Tobin only requires the possibility of an unconscious influence on deliberations. In his written submissions, counsel highlighted that the judge had indicated that he would have discharged this juror had he been aware of the information contained in the note before the trial started and submitted that a lesser standard should not have been applied at a later point in the trial. He further submitted that it was unsatisfactory that the personal experience of the juror was unknown and that it was not possible to determine what, if any, discussion of this issue had taken place with other jurors. Ultimately, the thrust of his submission was that it was not possible to preclude the possibility of an unconscious, potentially adverse, influence on the jury’s deliberations arising from this issue in the context of what are said to be the exceptional facts of this case – there are, in truth, none or at least none of relevance; we infer that the supposedly exceptional facts are the tragic circumstances of the death of the garda in question. There is absolutely no suggestion that his death was in any way related to the case and whatever his role may have been prior to the trial there was little mention of him in the course thereof. The fact that the judge indicated that he would have excused the juror had she brought the matter to his attention before she was sworn is not of the slightest relevance. There are many reasons why a judge might excuse a juror. It is certainly not the litmus test for deciding on a discharge application. We accept counsel for the prosecution’s submission that the garda in question had a “very remote and uncontentious role in the evidence actually ultimately led by the prosecution at the trial” and should be distinguished on the facts from Tobin. In Tobin it had, rightly or wrongly, been held there was a clear connection between the information disclosed by the juror and the possibility of unconscious bias; counsel essentially submitted that the same could not be inferred by mere recognition of the deceased garda’s name in this case.

63. All that can be established is that one juror indicated a very limited connection to one Garda O’Mahoney. There is no basis for suggesting that the jurors had any knowledge of his role in the investigation – still less that his death by his own hand was in some way connected to this case. Any adverse implication to Mr Disney is based on speculation, not evidence.

64. We think that there was no basis for the discharge of the juror or the jury generally. The fact that the juror brought this issue to the attention of the judge is an excellent example of just how conscientious juries are in discharging their duty to be impartial. That very conscientiousness in itself supports the proposition that a jury is capable of adjudicating on the matter impartially because of the seriousness which he or she takes his oath. One can attempt to elaborate or manufacture a connection of sufficient proximity to raise the potential for a discharge on a basis which has no reality. Emphasis has been placed on Tobin. Caution is required in relation to that case, which, firstly, might be said to be of its time (in more recent years there is stronger emphasis on respect for the impartiality of jurors as judges whose role as lay judges in serious cases is mandatory under the Constitution). Secondly, as to unconscious bias – a form of bias, of course, which it is easy to assert but which it is never possible to prove or disprove – Tobin involved a deeply personal matter on the part of one juror. Caution should be exercised in attributing actual or potential bias to anyone and doing so can amount to little more than guesswork. In Tobin, the relevant juror was so conscientious and so anxious to avoid any question of bias that she brought to the attention of the judge the fact that she had been the victim of sexual abuse in a case involving a sexual offence – a step which must have caused her much personal pain. Her disclosure might now be seen as concrete evidence of her capacity to deal with the matter impartially. Nor is there any rule which excludes a potential juror because he or she has been the victim of an offence of the class to be tried. Even if Tobin was rightly decided, this case is not remotely similar. Needless to say, we are not concerned in courts with mere possibilities but only with reasonable possibilities and there is none here.

65. We therefore reject ground no. 8 in Mr Disney’s appeal, and insofar as it is relevant to Mr Carlyle’s P.O’C application it does not support it on the merits (even if, as will be seen from what we have said below, the topic can be considered under that head).

The Acquittal Issue

66. First, we should point out here that we do not propose to reprise all of the evidence referred to in the judge’s decision or his articulation of the law.

67. On the 13th of December 2022, counsel for Mr Disney applied for a directed verdict of not guilty on the charge of murder. It was submitted that there was an absence of evidence to establish that Mr Disney physically participated in the assault on the deceased man and that the evidence only established that he pursued the deceased man – which could not establish the requisite intention. At trial, counsel for Mr Disney submitted that there was no evidence in this case to suggest that any underlying tacit or express agreement between the appellants extended to causing serious harm to the accused within the meaning of the test established in The People (DPP) v. Cummins and Davy [2021] IECA 198; the fact that serious harm was caused to the deceased man was not, in his submission, sufficient to establish a joint enterprise to cause serious harm. He agreed with the judge that, at a minimum, the prosecution was contending that the fatal injuries were inflicted while both appellants were at the scene and that one of them inflicted all the injuries while the other was present with intention to cause serious harm and to support and encourage the other

– without saying which individual took on which role. The judge refused the application. We set out a portion of his ruling below.

68. In the context of his criticism of this ruling, counsel also submitted that the judge was incorrect to conclude that conduct occurring after an event might be relevant to establishing the state of mind of an accused during an event in the circumstances of this case. He submitted that such a principle is only applicable if it is capable of being attached to probative evidence from which such intention can be inferred; however, he submitted, no such evidence was led, and he contended that the jury was accordingly permitted to engage in impermissible speculation.

69. Counsel for the respondent submitted that the evidence disclosed a clear animus between Mr Disney and the deceased, that Mr Disney was the lead-pursuer, that the deceased man was subjected to a severe assault off camera, that his watch was recovered from the side of the van occupied by Mr Disney, and that Mr Disney had subsequently returned to the pub and appeared to be in good spirits. In his written submissions, he stated that a natural inference could be drawn from such evidence that Mr Disney had participated in the assault of the deceased off camera, and that this was a matter properly left to the jury. We need hardly add that the nature of the injuries amply supports the proposition that the natural and probable consequences of the assault was serious injury or death.

70. The judge refused the application to direct an acquittal. Regrettably, we think we must quote his ruling at length. The reasoning is impeccable and indeed any conclusion that the case should not go to the jury would not have been right. It is as follows:

“It is common case between the parties, I think, and well established in law, that in order to be guilty of a crime where it is alleged there was a joint enterprise, both accused must have had the necessary mens rea for the offence at the time of the commission of the offence. To be guilty of murder, therefore, the prosecution must be able to establish beyond a reasonable doubt that both Sean Carlyle and Philip Disney both intended to either kill or cause serious injury to Vincent Parsons. Once a jury is satisfied beyond a reasonable doubt that at a minimum, both intended to cause serious injury, therefore, as a result of which Mr Parsons died, that is sufficient intent. The inference of an intention to kill or cause serious injury may be made if the facts as proven by the prosecution are sufficient to support that inference beyond a reasonable doubt based on circumstantial or other evidence. Evidence that allows a jury to infer insight on the part of an accused about what was going to happen is evidence that they are entitled to have regard to. Likewise, conduct after an event may be important and relevant to establishing an accused's state of mind at the time of the event itself. It is entirely for a jury to decide whether or not they can be satisfied beyond a reasonable doubt what took place and what, if any, the level of participation of either one or other of the accused was, and what their state of mind was at the relevant time. It is not necessary for the prosecution to say whether one accused inflicted all of the injuries, but on the evidence, that possibility cannot be excluded in which case the jury would have to be satisfied of the level of or participation of the other accused, if any. In such circumstances, to be satisfied the accused were part of a joint enterprise to murder Mr Parsons, there must be sufficient evidence to allow the jury to infer beyond a reasonable doubt that in respect of the accused who did not inflict any injuries, that possibility being one that cannot be excluded, that he was not merely a spectator but was there to, at a minimum, offer support or encouragement, in which case, and if so satisfied that he was there to offer support or encouragement with the requisite intent, they would be entitled to convict that accused of murder.”

and:—

“Based on the submissions of the parties before me, as I say, there does not, in fact, appear to be a dispute about what the relevant principles are. The question is how those principles are to be applied to the facts of this case. The Court therefore has to decide whether or not, taking the facts of this case at its -- sorry, taking the facts of the prosecution case at its height, a jury would be entitled to conclude beyond a reasonable doubt that both of the accused had the intent to kill or cause serious injury to Vincent Parsons and were present at the assault that was perpetrated on him for the purpose of, at a minimum, encouraging or supporting the infliction of serious injury by the other.

The medical evidence is to the effect that Vincent Parsons died as a result of trauma that caused physical injury and interrupted blood flow, which ultimately resulted in his heart stopping. A jury would be entitled, I think, to conclude the injuries suffered were inflicted by an assault. It cannot be established on the medical evidence whether the injuries were inflicted by the acts of one person or two; it does not appear to be materially contested by either accused that Mr Parsons was subjected to an assault but, in any event, I'm satisfied that, taking the prosecution case at the height, a jury would be entitled so to conclude.

I am satisfied that when adjudicating on those issues, a jury is entitled to rely on the behaviour of both accused, including evidence of association and other conduct before and after the assault, to decide whether they both intended that Mr Parsons be killed or cause serious injury. The prosecution evidence, at its height, is that both accused and Vincent Parsons, together with others, were present in the Killinarden Inn. Prior to leaving the Killinarden Inn, the evidence is that there was some kind of interaction between Vincent Parsons and Philip Disney and that Philip Disney had to be held back.

For the purpose of this ruling, I am not satisfied to conclude what, if anything, may have been by Philip Disney, and that forms no part of the Court's reasoning -- that submission on behalf of the prosecution forms no part of the Court's reasoning. The evidence is, however, to the effect that following the altercation Vincent Parsons left the pub. Philip Disney left almost immediately afterwards, and a jury would, taking the prosecution case at its height, be entitled to conclude that he was looking for Vincent Parsons. The evidence is then that Sean Carlyle leaves the pub and engages in physical conduct that can be seen on the footage to encourage Philip Disney to go with him.

Again, that is, of course, taking the prosecution case at its height. Both go to the flowers.ie van, and after a time, they leave together in the van and depart in the direction that Vincent Parsons went. A jury would be entitled to conclude that they were going after Vincent Parsons. On arrival at the scene where Vincent Parsons was later found, taking the evidence of its height, a jury would be entitled to conclude that the first person out of the van was Philip Disney but that Sean Carlyle followed him very shortly. Both Sean Carlyle and Philip Disney run after Vincent Parsons.

Both were present at the scene for approximately 40 seconds. The two accused come back together and leave in the van. Sean Carlyle later changed his clothes and Philip Disney waited while Sean Carlyle changed and waited for the van to be left at a particular location. Philip Disney does not disassociate himself at any stage from Sean Carlyle or vice versa. A jury would be entitled to conclude that both returned together to the Killinarden Inn in a different car. In the pub after the event, Philip Disney behaved normally, appeared to be in good spirits, did not behave in a manner that suggested he had disassociated himself or was not supportive of what had, in fact, been done to Vincent Parsons.

Vincent Parsons's watch was found in the door area of the Flowers van on the passenger side. A jury would be entitled to conclude that the watch was removed either during or after the assault. A jury might conclude that Philip Disney took the watch from Vincent Parsons. When his house was later searched, taking the prosecution evidence at its height, it would be open to a jury to conclude that Philip Disney had deliberately not given the clothes he was wearing on the night to the gardaí because he was concerned that material might be found on them that would point to his having participated in the assault.

Taking all of the evidence together at its height, I am satisfied that the jury would be entitled to conclude that Philip Disney's conduct points to him, at a minimum, having been involved in pursuing Vincent Parsons to the scene of the assault and to draw an inference that he was present at least to lend support or encouragement. That is based on the totality of the evidence, including his behaviour after the event, which, in my view, supports the contention that he approved of what had -- that he approved of and encouraged what had taken place very shortly beforehand. I am also satisfied that the jury would be entitled to conclude that he was party to a joint enterprise with the intention of, at a minimum, causing serious injury to Vincent Parsons as a result of which, Mr Parsons died.”

The judge applied the correct principles of law to cases based on joint enterprise and on the evidence rightly refused the application. The prosecution, one need hardly say, do not, as a matter of legal principle, have to prove which of the two inflicted the injuries in a case of joint enterprise and certainly not on the facts here. For the avoidance of doubt, insofar as it was submitted that conduct after the offence was not relevant and hence inadmissible, we have no hesitation in saying that that is fundamentally contrary to principle.

71. We therefore reject ground no. 10.

The Judge’s Charge Issue

72. After the jury retired there was some brief debate between the judge and counsel as to the form of words which might optimally be used to explain the concept of joint enterprise. No serious objection was taken to the charge on the basis that there was some meaningful deficiency. Our understanding of the transcript is that counsel was suggesting a slightly different form of words for the purpose of achieving greater clarity. Ultimately, however, it is not contended that the charge was deficient. The judge started his charge on the 14th of December 2022 and concluded it on the 15th. After brief discussion with counsel the jury was called back and recharged, inter alia, on what is or is not joint enterprise and the issue of verdicts of murder and manslaughter respectively in the present case having regard to that doctrine. In effect, this was because it might be said that one of two persons engaged, say, in the homicide of another might not have an intention to kill or cause serious injury and that the joint enterprise did not extend to the infliction of death or serious injury but rather that one of them might merely have intended to cause something less than serious injury beyond what might be said to be trivial, and the other, potentially, having the relevant intent for murder.

73. Thereafter, the jury sought a copy of the transcript of one of the witnesses – the forensic pathologist, Dr Mulligan – and sometime later returned with a number of questions. The first was a request for a copy of the transcript of the charge in relation to joint enterprise, and the second was, what the judge characterised as, a further clarification on joint enterprise. In particular, the jury asked the following question:

“… if there was an agreement to cause harm below the level of serious harm, but one person beyond what was originally [agreed], is the other person deemed to have intended serious harm if they continue to support or fail to disassociate with the other person?”.

Brief discussion took place with counsel and the judge indicated the form of words in which he proposed to answer the question. The judge then told the jury the following:

“So, in relation to your first question of whether or not you can have a copy of the charge in relation to the joint enterprise, you can. That will take me a little while to organise that because I have to extract that and make it available to you, but I'll make copies of that available. In relation to the second question, I hope this is an answer to it. So, in principle, and as a matter of law, nobody should be deemed to have intended serious harm in this case or in any criminal case. If there was a joint enterprise and one person went beyond what was agreed, either tacitly or otherwise, you must be satisfied beyond a reasonable doubt that the other person actually supported or encouraged the doing of the serious harm and intended that serious harm be done. Okay. I hope that answers your question, but don't be afraid to come back, okay? If you require further clarification on an important issue, never be afraid to come back. Because sometimes I can only obviously answer the question as I see it, and you may want me to reformulate it in some way or address other aspects of it. So don't be afraid to come back as often as you need to come back, okay? So, I'll make the other thing available to you. And I think you want to finish up at four today, is that right? I might not have this to you by then but I'll do my best, all right?

And one way or the other, I'll see you at four, is that okay? And obviously, you can come back again, there's absolutely no limit on the number of questions you can ask.

Thank you very much.”

The form of words used by the judge pertaining to joint enterprise has not been criticised when terms were canvassed with counsel. As can be seen from the passage above, the judge told the jury that he would give it the portions of the transcript which it required. The judge decided that he would send a copy of the relevant portion of the charge to counsel so that they could consider the matter. He said: “[n]ow, obviously I don't want a treatise tomorrow morning on all the variations that the parties want, but if there's anything major you do want changed, you can say that to me.” The judge was to be disappointed. He furnished a document overnight to counsel, and we understand that this was a document which extracted the relevant portions of the charge with a view to rendering it easier for the jury to focus on the relevant points. Counsel for Mr Carlyle said that his preference was for the jury to be re-charged orally rather than furnished with the document. Counsel for Mr Disney indicated that he wished to have two paragraphs removed and one line added to what had been prepared by the judge. He referred to the potential for the jury to be placed in the position of: “conducting a semi-legal tutorial in there [the jury room], as to what bits and pieces mean”.

74. The next day, counsel for Mr Disney indicated a preference to place before the jury the transcript or relevant extracts therefrom (which is what the judge had intended originally).

Quite rightly, counsel for Mr Carlyle had no difficulty with the judge’s proposed course, or indeed in the case the judge saw fit to orally reprise the parts of the charge which had given rise to the question. Mr Disney’s counsel wanted something more elaborate and indeed wished to extract two paragraphs and add material from what the judge had given in an effort to be helpful and give the jury exactly what it had sought. The defence accordingly took the opportunity, even though they had no complaint about the charge, to in effect supplement on a basis they considered favourable, and which went beyond what the jury sought.

75. Counsel for Mr Disney sought, in reality, to cherry pick from some form of wish list (which is not the purpose of the charge or the rule permitting documentary material to go before a jury). The judge would have been perfectly entitled to tell the jury that he would simply repeat orally what it wanted or to simply, and, literally, give a portion of the transcript. The practical variation canvassed by him did not go to the substance. There should not have been any argument extending to the addition of material and perhaps no argument at all either in respect of the exclusion of a potion since everybody agreed that the charge was correct and what was being given was simply what had earlier been said orally. The idea that it should be supplemented because bald statements of the law were to be given rather than such statements and factual material earlier addressed in the charge is simply wrong.

When judges are asked questions, they are entitled to simply answer them, and it can be seen from the present case what unfounded complications can be introduced by going beyond that even though there will be exceptional circumstances in which it might be appropriate to do so – this was not one of them. This jurisdiction exists to make trials shorter and more straightforward, not the opposite.

76. There is no basis for the criticism of the judge’s approach and his ruling, again, was impeccable: we do not think it necessary to quote it in extenso. Therefore, we reject grounds nos. 12 and 13.

77. Given that none of his grounds of appeal have been upheld, we accordingly dismiss this appeal.

The Appeal by Mr Carlyle Ground 1: “The learned trial judge erred in his pre-trial ruling surrounding admissions allegedly made by the Appellant.”

78. This ground of appeal relates to two admissions made by Mr Carlyle to members of An Garda Síochána during the search of his house by gardaí. Counsel for the appellant submitted that these admissions occurred in discrete ‘incidents’ during the search. We consider each incident in turn below.

The First Incident

79. This concerns Mr Carlyle’s admission of ownership of the van driven by him on the night of the attack.

80. One Garda Jennifer Brogan gave evidence that on the morning of the 26th of August, she attended at Mr Carlyle’s address for the purpose of obtaining a statement of ownership of the vehicle which gardaí suspected of being involved in the incident: a van with ‘flowers.ie’ written on its side. Upon her arrival, this appellant’s father, Patrick Carlyle, was in the front garden of the house where the appellant lived. The vehicle was registered in the name ‘Patrick Carlyle’, and she asked the appellant’s father whether or not he was over of the vehicle, but he said he was not (he indicated that he would not make a statement pertaining to ownership). The appellant, having emerged from his house, then informed Garda Brogan that the van belonged to him and that it was registered in the name ‘Patrick Carlyle’ because ‘Patrick’ is his middle name. Garda Brogan asked Seán Carlyle to produce a form of ID to demonstrate that this was the case which he subsequently did. Apart from a contention that, in some general or inchoate way, what was said by the appellant should be excluded on the ground of fairness and that there was a breach of Rule No. 2 of the Judges’ Rules because there was in existence an intention to arrest the appellant, obtaining an admission first.

81. Having summarised the facts of the incident and the submissions advanced by the parties, the judge gave his ruling on this issue as follows:

“I'm satisfied there is a reasonable possibility that when Garda Brogan went to 8 Donomore Avenue she knew Sean Carlyle was a suspect in the investigation. Based on her evidence before me, I am, however, also satisfied beyond reasonable doubt that there is no hidden agenda, there was no hidden agenda or intention to do anything of an interview garda sorry, other than interview Patrick Carlyle about his ownership of the van and that the comment made by Sean Carlyle that he was the owner of the van was entirely spontaneous. I'm therefore satisfied that Garda Brogan had no intention to arrest Sean Carlyle and that his presence and that her presence was solely for the purpose of asking Patrick Carlyle about the van and that the answer given by Sean Carlyle was not part of any interview or questioning of him, either directly or indirectly. It is also argued by the defence that even if the Court finds that Garda Brogan's presence was for the purpose given by her in her evidence, which I do, then she should nonetheless have cautioned Sean Carlyle before asking any question of anyone. The law governing when a suspect should be cautioned is dealt with by the Judges' Rules. The relevant rule in this instance is that if the person is not in custody, whenever a member of the gardaí has made up his or her mind to charge a person with a crime, he or she should first caution such person before asking him any questions or any further questions, as the case may be. There is no objection to a member of the gardaí who was endeavouring to discover the author of a crime from putting questions about the crime to any person or persons, whether a suspect or not, from whom he or she thinks that useful information may be obtained. I am satisfied that, on the facts of the instant case, there was no breach of the Judges'

Rules and no unfairness to the accused by the manner in which the interaction between him and Garda Brogan took place. There was, in the circumstances, no obligation on Garda Brogan to caution the accused, no requirement to write down immediately what he said or read it back to him. I understand she did, in fact, make a note of the exchange shortly after it concluded and the failure on her part to read back what the accused said does not give rise to any unfairness based on the evidence before me because, in substance, the accuracy of what she recorded is not challenged.

The accused makes a further argument to the effect that the Judges' Rules are inadequate to protect to properly protect the rights of the accused. He submits that there should be an obligation on gardaí in circumstances such as these to caution any accused who they know to be a suspect in the investigation when they are questioning any person if the accused is in the vicinity. That is not part of the law, nor was it the law at the time of the interaction between Garda Brogan and the accused. Furthermore, I'm not persuaded that the requirement for fairness in any interactions between Garda Brogan and the accused requires the law to be extended in the manner contended for. I, therefore, refuse the application to exclude this evidence.”

82. The judge summarised the argument precisely and we think he was right; the evidence is all one way. It was plainly conceived by the gardaí that the appellant’s father was the owner of the vehicle, and it was only after his denial that Seán Carlyle volunteered fact that he was the owner. Garda Brogan’s involvement in the investigation was minimal and there was no reason for the judge to doubt her credibility.

83. The long-standing rule about questions or inquiries was stated in Conroy thus by Charleton J at para. 35:

“Nothing stops an officer of the law conducting enquiries. Citizens don't have to answer their questions. When in custody or where a charge is decided on outside custody, there has to be a self-incrimination warning, but not when a potential witness or potential suspect is at liberty.” These principles apply in respect of both incidents.

The Second Incident

84. This concerns certain remarks made by Mr Carlyle to one Detective Inspector Denis Ellard regarding visible cuts on his hands.

85. The evidence of Detective Inspector Ellard, who was a participant in the search of Mr Carlyle’s home, was that he noticed a cut on Mr Carlyle’s right hand when he was explaining the warrant and purpose of the search to him. Another garda, one Garda Harrison, then cautioned Mr Carlyle and asked him what happened to his hand. A note of their conversation was taken by one Detective Garda Austin Larkin. Mr Carlyle refused to sign this note when it was read over to him and Detective Inspector Ellard then signed the notebook by way of witnessing this refusal. Detective Inspector Ellard’s evidence of the conversation was as follows:

“Garda Harrison asked him, ‘What happened your hand’, and at that point Mr Carlyle replied, ‘I cut it’, and Garda Harrison then asked him, ‘How did you cut your hand?’ And he said, ‘Boxing’, and then Garda Harrison asked him, ‘Do you not wear gloves boxing?’ And Mr Carlyle said, ‘No, I wear wraps’.”

Discussion

86. Counsel for Mr Carlyle submitted that both admissions ought to have been excluded by the judge on the basis of fairness. He stated that it was clear that Mr Carlyle was strongly suspected of involvement in the offence and that it was “inconceivable” that gardaí did not intend to arrest him at some point in the (then) near future. His general submission was that Mr Carlyle should not have been questioned during the search because the protections which apply during detention, such as access to and advice from a solicitor, a medical assessment of fitness to be interviewed and video-recording of conversations with gardaí, were not available to him. Counsel drew attention to the fact that the search took place approximately 6 hours after he had last been in the pub and that no doctor was present during the search to assess whether he was fit to speak with gardaí.

87. The core of counsel’s submission was that the admission of Mr Carlyle’s remarks was unfair because of the absence of proper safeguards whose importance were recognised in The People (DPP) v. Doyle [2018] 1 IR 1 and the knowledge of gardaí of the importance of both the van and any injuries sustained by Mr Carlyle to their investigation. He also cited The People (DPP) v. Shaw [1982] IR 1 as an authority for his proposition that “the presence of circumstances of unfairness” are sufficient to have such statements excluded.

88. Regarding the second incident, counsel for the respondent submitted that the probative evidence for the purpose of the trial was the observation of cuts to Mr Carlyle’s hand. He submitted that the purported admission was, in actual fact, exculpatory on its face and arguably to the benefit of Mr Carlyle. When there is no legitimate basis for the exclusion of evidence from time to time it is submitted, as here, that there is some generalised form of unfairness about the receipt of the evidence: this is not good enough. The residual discretion to exclude otherwise admissible evidence can arise only in respect of circumstances of the kind which existed in Shaw or analogous thereto; in Shaw extensive interviews with Mr Shaw took place over a lengthy period in circumstances where, for a period, his detention by the gardaí was unlawful – the admissions were held voluntary and the evidence admitted. Doyle (which pertained to the right to the presence of a solicitor during interview) has nothing to do with legitimate enquiries by gardaí in the course of investigation. Neither does Shaw.

89. We feel it would be helpful to set out the judge’s ruling in this instance because he so thoroughly and correctly states the law and the relevant facts. He did so as follows:

“The next issue concerns Mr Carlyle and a conversation with gardaí during the course of the search. This issue concerns an interaction between members of the gardaí and the accused during the search of his dwelling at 8 Donomore Avenue, Killinarden, Tallaght, Dublin 24. In short, the factual background is that, having entered the premises, Garda Conor Harrison says he observed the injury to the accused's hand.

The accused was cautioned in the usual way and asked about the injury. He replied to the effect that it resulted from his participation in boxing. He was then asked, in substance, how he could have received the injury in that way if he was wearing boxing gloves, to which he replied that he didn't wear gloves, that he instead wore wraps. A note was made of the exchange that was read back to the accused and the accused was invited to sign the notes, he declined to do that.

The admissibility of that note is challenged on a number of grounds. The first issue is whether there was an intention on the part of the investigating team from the outset to interrogate the accused during the search. In the first instance, there is no evidence that the gardaí knew or believed the accused had an injury to his hand before entering the dwelling. Leaving that aside, based on the evidence of the relevant gardaí, I'm satisfied beyond a reasonable doubt that the search was, in no way, a colourable device intended to allow the gardaí to conduct an interview with the accused, nor was there any intention on the part of any of the gardaí to do so prior to the search.

The next point concerns whether or not the accused was fit to be questioned, which argument is advanced on the basis that he had been in a public house the night before and was still intoxicated. It is also argued that because he had been out late, he was not fit to have been questioned because he was tired. Those matters are dealt with were dealt with during the cross examination of Garda Harrison and Garda Austin Larkin, whose evidence was to the effect that they did not consider the accused was too drunk or tired. I accept that evidence. There is no evidence before me that the accused was either too intoxicated or too tired to understand the nature of the questions he was asked or to suggest that his replies are unreliable. It is, in fact, not challenged that he said what is attributed to him. I, therefore, refuse the application to exclude the evidence on that ground. In cross examination, another issue was pursued which concerned the manner in which the gardaí entered the premises. It was submitted that there was a conflict as to whether the door of the dwelling was open fully or partly. There was also cross examination of Garda Larkin, Garda Harrison and Inspector Ellard concerning the sequence of events which led to the accused moving from where he was found in a cabin or similar building in the back garden of the house, to the kitchen of the house itself. There are differences between the accounts given by those gardaí, but the inconsistencies between the garda witnesses on those issues do not cause me to have a reasonable doubt about the essential features of what happened. Ultimately, any issue relating to the reliability of the evidence is a matter for a jury.

The next argument touching on the admissibility of the conversation about the injury to the accused's hand is that no questions should, as a matter of principle, have been asked of him in the house. It is submitted that he should, instead, have been arrested and taken into garda custody where the full suite of statutory safeguards would have applied. The information available to the gardaí at the relevant time may well have been sufficient to allow an arrest. The law does not impose on gardaí an obligation to arrest either where there are objectively sufficient grounds to do so.

Interactions between gardaí and any person, including a suspect, prior to arrest are governed by the Judges' Rules, which are designed to ensure fairness to persons who have not been arrested or detained but who may be suspects. Strictly speaking, a guard is entitled to question a person suspected of having committed an offence without first administering a caution, provided they have not made up their mind to charge the person. In the particular circumstances with which I am concerned, however, and although no decision had been made to arrest him, I agree that it was prudent for the accused to have been cautioned before being asked about the injury to his hand.

The legal submission made on his behalf is to the effect that the Court should expand on the law as it applies to interactions between gardaí and suspects, so as to mandate an arrest before any questions are put to a suspect. It is worth noting that the evidence of the injury to the accused's hand is a fact observed by gardaí carrying out a lawful search and which the relevant gardaí would therefore have, in principle, have been entitled to give at trial. That being so, it is at least arguable that it would have been unfair not to have given the accused an opportunity to comment on it. That is, however, essentially peripheral to the issue. The injured to the accused's hand was something the gardaí observed in the course of the search and, in my view, correctly investigated.

Having been cautioned ... question was asked of him and a note made of his responses. I'm satisfied that the accused was treated in accordance with the relevant governing legal principles and, furthermore, that there was no unfairness involved in the manner in which the accused was treated which would otherwise render his answers inadmissible. Any issue about the reliability of the evidence can be raised at the trial to be determined by the jury. I, therefore, refuse the application to exclude a note of the interaction between the gardaí and the accused on this ground.”

The judge was right. Conroy is in no sense an authority for the proposition that the gardaí cannot ask questions in the course of their investigations and that evidence thereof cannot be adduced.

90. At the risk of repetition, having regard to what we said about the first incident and the engagement of Mr Disney with the gardaí at the time of the search, if in the ordinary course of investigation gardaí make enquiries of persons, even suspects, as contemplated by the Judges’ Rules there can be no unfairness. Those rules are for the purpose of ensuring fairness. There might on given facts be an element of unfairness, such as the level of coercion or pressure imposed on an accused. Doyle and Shaw (as aforesaid) do not appear to us to have any application in the present context. We might add that the entitlement of gardaí to make enquiries once they conform with the Judges’ Rules would gravely hamper the legitimate investigation of crime. There is simply no authority to support the proposition that what has been characterised, as, indeed, was held in DPP v. JD [2020] IESC 39, as the full suite of protections for a person in custody could possibly be applicable. The crucial difference, of course, is that a person under arrest subject to the coercive powers of the State is in a totally different position to somebody like Mr Carlyle.

91. We therefore reject this ground of appeal.

Ground 2: “The learned trial judge erred in his pre-trial ruling surrounding inference interviews.”

92. This ground of appeal relates to the admission of responses made by Mr Carlyle during an interview which occurred during his first detention at Tallaght Garda Station on the 8th of September 2019 wherein gardaí invoked the provisions of sections 18 and 19 of the Criminal Justice Act 1984, as amended by section 28 and 29 of the Criminal Justice Act 2007. Mr Carlyle was asked by gardaí to account for a number of objects pursuant to the aforementioned provisions.

93. During the interview in question Mr Carlyle’s solicitor read a statement into the record on behalf of Mr Carlyle wherein it was asserted that the information made available by gardaí in advance of the interview was insufficient to allow Mr Carlyle to be properly advised. On the basis of the legal advice provided to him at that time, Mr Carlyle subsequently declined to answer any further questions posed during the interview. The judge refused an application from the defence to exclude these responses during interview.

94. The statement read by the appellant’s solicitor was as follows:

“First, let me categorically state I'm innocent of any murder. At the commencement of arrest and detention my solicitor sought full disclosure of the evidence against me.

Please note in this regard that I handed myself in by arrangement. My solicitor was advised that the pathology report was unavailable. He was advised that the cause of death of Mr Parsons has catastrophic injuries to his face. In questioning a different cause of death was put and it was put that An Garda Síochána moved Mr Parsons before an ambulance arrived. As such, it was not absolutely clear why Mr Parsons died. Moreover, allegations have been put to me that blood was found on items of clothing recovered from my home. I've been shown no photographs of these exhibits in circumstances where I have not been shown the exhibits themselves, which are in the process of being forensically tested. But, accordingly, I do not know whether the items in fact had blood on them nor whose blood. If it is blood it is, nonetheless …"

-- sorry -- "… if blood it is, if it is blood it is. Nonetheless, I am being asked to account for these items under inference legislation. I cannot do so in the absence of full information. Furthermore, it has been confirmed by Detective Garda Connolly that my co-suspect was not asked to account for a watch, it is alleged is the property of Mr Parsons. Accordingly, therefore, these inference questions are being put in an incomplete, unfair and arbitrary manner. The inference questions under section 18 and section 19 are thus entirely unfair. I am happy to be re-arrested and for all inference questions to be put once full information is disclosed. I undertake to present myself for a properly invoked inference questioning once full evidence has been gathered. I will deal with the inference questions at that time. In terms of section 19(a) I repeat what I have said above. I will consent to being questioned under inference legislation when the entire evidence can be put. It is my case, therefore, that because of the crucial gaps in the prosecution case at this stage that the inference questioning under section 13, 19 and 19(a) of the 1984 Act as amended has been fatally flawed and improperly invoked.”

95. Counsel for Mr Carlyle submitted on appeal that the manner in which the inference interviews proceeded was unfair, unlawful, and breached his right to a fair trial. He submitted that the failure of An Garda Síochána to provide Mr Carlyle with sufficient information meant that he was unable to obtain proper legal advice regarding his engagement with the inference interviews. Counsel advanced the proposition that in those circumstances it cannot be said that Mr Carlyle refused to provide the requisite information, and that the true position was that Mr Carlyle was: “deprived of the ability to engage with the interviewing process due to a lack of disclosure by An Garda Síochána”.

96. There were two principal strands to counsel’s submissions on this ground of appeal: the first focused upon the rights of accused persons during questioning, and the second upon Mr Carlyle’s right to information.

97. Regarding the first strand, counsel submitted that The People (DPP) v. White [2014] 2 IR

591 and JD establish the proposition that an accused person has a right to fair procedures at the investigative stage. He further stated that the case of Deweer v. Belgium, no.

6903/75, ECHR 1980 could be read as authority for the proposition that Article 6(1) of the European Convention on Human Rights is applicable to the process of interviewing a suspect before he is formally charged with an offence. On the basis of those authorities, counsel submitted that Mr Carlyle was entitled to pre-trial rights, in effect in accordance with the EU Directive on the Right to Information in Criminal Proceedings, during interview whilst in custody and that fair procedures contemplated by the Irish authorities were analogous thereto.

98. In A.McD, McKechnie J stated at para. 100 as follows:

“Where a person has declined or refrained from giving an account when requested to do so, the same may be considered as a refusal within the meaning of s. 19 of the 1984 Act. There is a deliberateness to such a refusal, an unwillingness to engage with the investigating authorities. A failure, on the other hand, may be voluntary or involuntary: it means simply that the person did not provide an account. The reason for this may be deliberate choice, in that despite the section and its consequences the person may decide to continue to rely upon his right to silence. However, it may also be because the person in question simply cannot remember why they were at the place, or even that they were at the place at all in the first instance; this could be due to the influence of intoxicants or other such causes. Further, where a failure to give an account is caused by, say, a blackout associated with an underlying medical condition, it seems highly likely that no ‘proper’ adverse inference could be drawn from such failure under the section. Whilst all refusals are failures, not all failures are necessarily refusals. In any event, this point, in my view, is not central to the present issue.”

We note that in accordance with a certain recommendation of the Law Society to solicitors advising clients when these provisions are invoked, solicitors have been advised (presumably if justified) to assert on behalf of their clients that: “… in the absence of full and proper disclosure, clients cannot receive comprehensive legal advice”.

99. One Detective Garda David Connolly gave evidence regarding the questions put to Mr Carlyle during interview once the so-called inference provision of section 18 of the Criminal Justice Act 1984 (as amended). Counsel for the prosecution led evidence from him regarding the specifics of the questions put to Mr Carlyle, inter alia, as follows:—

Q. “‘I am now invoking section 18 of the Criminal Justice Act, 1984 and I am requiring you to account for bloodstained socks, EXAL4 found during the search of your home,

8 Donomore Avenue, Tallaght, Dublin 24 at approximately 6.10 am on the 25th of August 2019?’ Answer: ‘I rely on my own statement.’ Is that correct?

A. Correct, yes.

Q. And that this is the statement that his solicitor read at the start of the interview?

A. Correct.

Q. All right. ‘Bloodstained towel, EXALS or AL5, found during a search of your home, 8 Donomore Avenue, Tallaght, Dublin 24 at approximately 6.10 am on the 25th of August 2019?’ Answer: ‘I rely on my own statement.’ Is that correct?

A. Correct.

Q. ‘Bloodstained white and red Nike runners, EXAL6, found during a search of your home, 8 Donomore Avenue, Tallaght, Dublin 24 at approximately 6.10 am on the 25th of August 2019?’ Answer: ‘I rely on my own statement.’ Is that correct?

A. Correct.

Q. ‘A gents watch inscribed, To Dad, Love Jade. Xmas 2011, which has been identified as the property of the deceased man Vincent Parsons found by gardaí in your Ford Courier van registered number 152D20145?’ Answer: ‘I rely on my own statement.’ Question: ‘If you have not replied to the material questions asked after section 18 was invoked, it may have consequences for you at a trial and can be given in evidence and a judge or jury can draw an inference from this. Do you understand?’ No reply.

‘I have now concluded questioning you under section 18 of the Criminal Justice Act, 1984, as amended.’ ”

100. In any event, the gardaí are not to be inhibited from questioning a suspect in garda custody or otherwise if they have not given him their whole case. As a minimum this must depend upon the type of questions asked. We do not think that there could have been any meaningful difficulty in answering these straightforward questions and whether or not the appellant is relying upon legal advice to do so is irrelevant – a party could always rely on legal advice to circumvent the sections. In any event, what has happened is there was a partial waiver to legal professional privilege as to why the questions weren’t answered and this goes to the credibility of the refusal. The subjective view of a lawyer is no more than an opinion and the matter must be decided objectively by a court. An individual is entitled, or not, to accept legal advice and no doubt any lawyer will advise him of the potential adverse consequences of failing to answer the questions, regardless of any explanation offered.

101. Any suspect has a choice. He will have obtained legal advice. In this instance he exercised a free choice. He cannot circumvent the 1984 Act by seeking to explain away or excuse a refusal to answer. All kinds of factors may motivate him, but the simple fact here and more generally is that a refusal to answer is of evidential value. It is apparent in any event from the information which he accepts he has that at an early stage of the investigation he had very full information as to the facts, and it is difficult for us to understand how he could have had the slightest difficulty answering the questions with a free and fully-informed mind. Again, the judge’s ruling was impeccable and there is little more to be said.

102. Reliance is placed upon the provisions of the EU Directive on the Right to Information in Criminal Proceedings which provides:—

1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.

2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.

3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered.

4. By way of derogation from paragraphs 2 and 3, provided that this does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Member States shall ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review.

5. Access, as referred to in this Article, shall be provided free of charge.

103. We do not propose to go into further detail in this matter save to say first that, as pointed out by O’Donnell J (as he then was) in Doyle at para. 32:

“Given the fact that the jurisprudence of [the European Court of Human Rights] has to date largely been developed in the context of civil law systems with early supervision of investigation by a magistrate, it cannot be said that it has been definitively determined that the Convention requires a bright-line rule that in a common law system, an accused person must have not just access to, but the assurance of the presence of, a lawyer during any detention. This is particularly so because, until now, the Convention jurisprudence has not adopted any absolute rule that evidence obtained in breach of a Convention right must be inadmissible, but rather has applied a test of considering the overall fairness of the proceedings.”

104. Whilst these observations were made in the context of whether or not a suspect subject to the compulsion of the State in custody was entitled to have a solicitor present as of right, in effect, the Chief Justice expresses caution about drawing a bright-line rule in respect of the right to a solicitor because of the fact that the jurisprudence of the European Court of Human Rights, and to date of the Court of Justice of the European Union, is derived from civil law concepts. We think that it is far from clear that at the early investigative stage of a detention for the purpose of investigation including interviews and, as here, invocation of the so-called inference provisions of the Criminal Justice Act 1984 the point of “notification”

has been reached and that the obligation to tell the suspect of the garda case (it remains that) so far as they can has been arrived at. In our view, it has not been so arrived at since the process at that stage is far from a decision of the DPP to charge or the actual charging.

Furthermore, the gardaí can at most be expected (even if we were wrong) to afford information of a concrete kind which they actually have. In any event, any derogation under Article 7(4) “… that does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation …”.

The necessity for a derogation does not arise in any event. The position is quite different, say, after a person has been charged although we do not reach any conclusion in this case as to the point where, prima facie, rights under the Article are triggered. We should also say that we do not reach any view as to the limits of any derogation. In any event there was no such refusal in practice in this case: as we say the investigation was at any early stage. It was plain that further evidence of importance might be obtained (e.g. the results of DNA testing).

105. The judge provided his ruling on the overarching submission that the responses should be excluded in light of the legal advice purportedly received by Mr Carlyle, inter alia, in the following terms:

“The next issue relates to the use of inference provisions during the first arrest of Mr Carlyle. During the course of the accused's first detention at Tallaght Garda Station on the 8th of September 2019, gardaí invoked inference provisions under sections

18 and 19 of the Criminal Justice Act 1984 as amended by sections 28 and 29 of the Criminal Justice Act 2007. Objection is taken to the admissibility of those interviews.

When the inference provisions were invoked, the accused's solicitor read a statement to the effect that the information available in respect of the matters to which the inference related was insufficient to allow Mr Carlyle to be properly advised and, therefore, Mr Carlyle could not meaningfully engage with the process. The prosecution intend to rely on that statement as a response to the questions put during the course of the inference interview.

Section 18 and section 19 of the Act do not fully deprive a suspect of the right to silence but do impair it by permitting a jury to draw inferences from the decision of a suspect to exercise the right to silence if they decline to answer questions in certain circumstances set out in the legislation. It is a matter for a jury to adjudicate upon whether or not any inference can be drawn at what the evidential value of such an inference is. Trial judges are obliged to take a rigorous approach where the prosecution seeks to rely on the provisions. In DPP v. Sheehan, the Supreme Court held that these sections are not to be construed as penal provisions.

An overarching objection is raised in respect of the interviews on the basis that in light of the statement read by Mr Carlyle's solicitor, no jury properly charged could draw any inference other than that Mr Carlyle's refusal to answer each of the individual questions was because he was acting on legal advice. That argument is advanced on the basis that there was an information gap at the time of the detention on the 8th of September 2019 because, for example, various forensic tests had not yet been carried out on items that had been recovered during the investigation, or the results of which were not available. It is, therefore, contended that the inference interview should be excluded in its entirety because no jury could properly draw an inference adverse to the accused in the circumstances. I do not agree with that submission.

It is clear from the evidence that the accused benefited from legal advice throughout his detentions as he is entitled to. The solicitor was present before and after the inference provisions were invoked. Moreover, on the contents of the statement read by the accused's solicitor, but signed by the accused himself and clearly read on his instructions, it is apparent that the accused had been fully advised about the inference procedure and that he had a good understanding of what was involved. In that regard, I note that nowhere in his statement read on his behalf does he suggest that he did not understand the procedure, the nature of an inference or what the potential effect of his decision not to directly answer any of the inference questions might be.

I accept the submission that an accused cannot negative the inference provisions by claiming he was declining to answer questions based on legal advice. Whether his

decision not to answer the questions because he was acting on any legal advice or not is a matter of fact for the jury to adjudicate on. I, therefore, refuse to exclude the inference interview of 8th of September 2019 on the general basis that no jury could draw an adverse inference as to the accused in the circumstances sorry, an adverse inference in the circumstances.”

106. We accordingly reject ground no. 2.

Ground 3: “The learned trial judge erred in his pre-trial ruling related to the identification of the accused and the identification process in general.”

107. This ground of appeal relates to the identification of Mr Carlyle in CCTV footage by one Garda Damien Reilly.

108. Counsel for Mr Carlyle objected to the admission of this identification evidence at trial on the basis that no clear procedure for the identification had been followed by gardaí. He submitted that the process of identifying Mr Carlyle was defective for reasons including that Garda Reilly was involved in the investigation of the offence which Mr Carlyle was suspected of committing, that he had accordingly viewed the footage multiple times before formally identifying Mr Carlyle, and that no garda independent of the investigation provided separate identification.

109. On appeal, counsel for Mr Carlyle submitted that the admission of the identification evidence was unlawful because no procedure which would allow for the identification to be tested had been followed and that, in his submission, made the evidence “tantamount to confirmation bias”. We reject the proposition that there was any meaningful difficulty challenging the recognition evidence. There was no evidence which could have supported the proposition that there was confirmation bias. Such a thing can exist but unless there is some rational basis for concluding that it does in a given case, it cannot be relevant. The position is quite different with respect to, say, identification evidence where the long experience of the courts has shown that fatal errors can be made.

110. Counsel for Mr Carlyle submitted that the law regarding the admission of identification evidence was correctly stated in The People (DPP) v. Murphy [2023] IECA 330. He submitted that Murphy established the proposition that potentially contaminating factors were one of the many factors which could influence, and thus affect the reliability of, identification evidence. This may be true in principle. Counsel submitted that the extent of knowledge of an identifying garda witness of the investigation of the person he is purporting to identify is a “potentially contaminating factor” which, he postulated, is because of the risk that his identification will be “tainted by confirmation bias”. Counsel then sought to draw an analogy between potential confirmation bias in the context of identification evidence and the treatment of confirmation bias in the context of independent expert evidence by reference to Crumish v. HSE [2023] IEHC 194, and Glenman Corporation Ltd. v. Galway City Council [2023] IEHC 336, as well in the assessment of International Protection applications by reference to IX v. Chief International Protection Officer and Ors [2021] 2 IR 209. These decisions are of no relevance.

111. Quoting from the judgment of Ní Raifeartaigh J in Murphy, counsel for Mr Carlyle submitted that the test for admissibility of identification evidence based on CCTV is whether the procedures adopted, when taken in the round, “were sufficiently robust to ensure a fair process or whether they fell below a threshold such that the evidence could be considered more probative than prejudicial”. Counsel submitted that Garda Reilly was “effectively engaging in confirmation bias” and that the admission of his identification evidence was accordingly unlawful. The test in Murphy was one of whether or not the process was fair and that was the necessity for the approach adopted in the neighbouring jurisdiction.

Fairness is juxtaposed with evidence, which fell below a threshold such that the evidence might be more prejudicial than probative. What is or is not a sufficiently robust process and whether or not evidence is more prejudicial than probative must depend on the facts of each case.

112. This topic has been dealt with repeatedly. The first thing to be said is that if the quality of the footage is very good and the individual identifying the person shown knows him well, then there will be cases where it is bordering on irrationality to suggest that any elaboration of procedure either of the kind which exists in England and Wales or otherwise is necessary or, to put the matter another way, that a mere viewing was insufficiently robust. Secondly, the elaborate procedures which exist in that jurisdiction are not part of Irish law and the extent to which they are relevant is debateable. There is no reason for any distrust of a member of An Garda Síochána in this context, absent an evidential basis. Since whether or not the identification can be relied upon is dependent on the quality of the footage and the extent of the knowledge of the individual by the Garda who recognises him, there is no difficulty about testing these issues – one can see the footage for oneself. It is sometimes said that the more elaborate procedures contemplated abroad are necessary in order to afford the defence an opportunity to test the reliability of the evidence of the identifying officer, but we cannot see how this is so given what can be tested. The proposition is advanced that notwithstanding the integrity of an officer or his competence there might be some form of subjective confirmation bias. We do not know wherefrom this proposition emerges.

113. The situation which arises where a victim, even in a recognition case, who was had limited opportunity in circumstances of panic to see someone who, say, has assaulted or robbed him bear no meaningful comparison. The trier of fact is in a position to make a judgement as to the extent to which weight should be given to prior knowledge of an individual by, say, the identifying garda which goes to the weight of recognition; by looking at the footage, the trier of fact will be in a position to make judgement as to the extent to which reliance can be placed upon it. It is obvious that the starting point for any judgement in this regard by a trier of fact is the objective material constituted by the footage. Recognition evidence by a garda of someone who he knows on CCTV footage whether to confirm what he has previously been told or otherwise is perfectly acceptable, all else being equal. This is a matter of common sense. This will especially be the case if the footage is good. It is only in the event that the footage is poor that there will be any reality to some concern about reliability of identification. The trier of fact is perfectly capable of addressing issues about how well a garda knows the individual, and the extent to which he has considered the footage and whether or not he has been told who it is suspected can be seen in it. There is no reason why garda evidence as to the identity of an individual is inadmissible just because he has been told in advance of the suspected identity of the actual suspect. Any issue arising will go to weight. The adoption of the more elaborate procedures in England and Wales, whilst a failure to adhere thereto will not give rise to exclusion, is relevant only to weight in a debatable case. The fact that such processes were not been adopted here could not on any view give rise to a basis for their rejection.

114. We therefore reject ground no. 3.

Ground 4: “The learned trial judge erred in his trial ruling by dismissing the accused’s POC application and the grounds upon which it was based.”

115. It is submitted by counsel for Mr Carlyle that there are nine discrete issues giving rise to an “incurable unfairness” in the trial of Mr Carlyle. A number of these issues were, if there was any significance to them, matters which ought to have properly been the subject of a discharge application rather than justifying the grant of an application under P O’C for a directed acquittal. A number of the grounds relied upon are common to both appellants. In his written submissions on appeal, counsel for Mr Carlyle has summarised those nine issues as follows:—

1. There were a vast number of notices of additional evidence, 28 in total, which were furnished up to and on the final day of evidence;

2. On 2 December 2022, a member of the jury handed a note into the Court which stated that they recognised the name of a member of the Gardaí, Detective Garda O’Mahoney (deceased), who was a friend of her husband’s brother. The name of this Garda had not been highlighted during jury selection as he had passed away, however on hearing the name during the course of the trial, this juror alerted the Court to her knowledge of the Garda in question. It was submitted by counsel for the defence that, in light of the circumstances of Garda O’Mahoney’s death and the link between his suicide and this case, it would be inappropriate for this juror to continue to act in case the juror may have such knowledge.

3. The inadvertent reference by counsel for the prosecution on two occasions to Mark Carlyle when referring to the Appellant, Seán Carlyle. Mark Carlyle is a person whose criminality is very much in the public domain.

4. On 30 November 2022, Garda Reilly was cross-examined by counsel for Mr Disney in relation to his lack of previous convictions and the fact that he was on bail at the time of his trial. It was submitted that no such evidence was or could be adduced on behalf of the Appellant, thus allowing the jury to draw adverse inferences against the Appellant.

5. Garda Reilly also gave evidence that on 30th July 2019, some time prior to the commission of the offence the subject of these proceedings, he saw the Appellant driving his van. He made a note of same in his notebook, including the name of the Appellant, the registration number of his van and a note “not in a position to stop” .

The evidence of this comment by the Garda was not contained in the Book of Evidence and was led from the Garda directly from his notebook. It was submitted that this evidence was highly prejudicial as it clearly implied that the Appellant was involved in some kind of criminal conduct as the Gardaí wanted to speak with him and were making notes of sightings of him and his vehicle.

6. Coupled with the evidence of Garda Reilly in relation to wanting to stop Mr Carlyle, Garda Murray also gave evidence in relation to wanting to stop the Appellant’s van.

Garda Murray gave evidence that prior to the altercation the subject of these proceedings, he was on the lookout for this van, giving rise to an adverse inference that there was some kind of illegality involving this van which falls outside the parameters of the offence for which the Appellant was charged in this Court.

7. At various times during the trial, both the Appellant and Mr Disney were absent due to illness. When the Appellant was absent, Mr Disney was left unaccompanied in the dock and the trial was not permitted to proceed in his absence. However, when Mr Disney was absent, the trial continued without him and the Appellant was guarded by officers in the dock. It was submitted that clearly the jury could deduct from this that the Appellant was in custody while his co-accused was not, clearly creating adverse inferences in the mind of the jury.

8. Bad character evidence was adduced in relation to the Appellant.

9. Evidence was given by Garda Seán Lawlor that when he arrived onto the scene of the altercation, he spoke to the other three individuals who were there and concluded that they could not offer any probative evidence. This, it was submitted, was misleading and unfair.

The overall effect of the above, was that the jury were aware that the Appellant was in custody and was a man with previous convictions and engagement with the Gardaí.

Further, cumulatively, these various matters gave rise to an irremediable and prejudicial unfairness to the Appellant.

116. We will deal with each issue also but with some hesitation because all can really only be decided by reference to the procedural law about discharges due to supposedly illegitimate procedural events. That said, two points of general application must be made first. As indicated above, the judge told the jury that they were dealing with two separate trials being run together with all that that entails (we put the matter shortly). It is fundamental that professional judges respect the Constitution, which is not an empty or nominal thing.

It must be given real substance and must underlie the approach, inter alia, to issues of the present kind because jurors must be respected. Respect for juries is repeatedly emphasised. Supposed fears of prejudice as to how the jury might be thinking must be regarded with caution absent a real evidential basis – juries have repeatedly shown their robustness and capacity to exclude from their minds, when directed by the judge to do so, any event, statement, or evidence. In general, courts must reject applications to discharge juries save in wholly exceptional circumstances. There may be cases where evidence is available, or indeed the court is informed of some factor, which either indicated a level of prejudice warranting a discharge or, say, a breach by the jury or a particular juror of the judge’s explicit directions (potentially giving rise to the discharge of a single juror) – then the application might have some substance.

117. The core of the submission made by counsel for Mr Carlyle on appeal is that the key consideration for a court when assessing such an application is fairness (of course that is

so) and that although none of the individual grounds outlined could, on their own, reach the level of unfairness required to discharge the jury, the cumulative effect of those factors “irrevocably prejudiced” Mr Carlyle such that the trial fell below the appropriate level of fairness in the proceedings.

Issues Nos. 1 & 2

118. The issues which are common, at least on this appeal, are nos. 1 (additional evidence) and

2 (discharge of juror). We have dealt with both of these above so far as Mr Disney is concerned and no purpose is served by repetition, although it can be seen from the judge’s ruling on the grounds raised that he ruled upon them separately and correctly. On the first ground he had this to say:

“The accused says that up to and including evidence served on the 12th of December 2022, that 28 notices of additional evidence have been served by the prosecution.

He says that they have been difficult to deal with and that service of that number of notices of additional evidence is itself unfair. The position in law is that the prosecution are entitled to serve additional evidence at any stage up to the close of the prosecution case without the leave of the Court. Many, if not most of the notices of additional evidence in this case were served before the trial commenced and a number were served during the course of a pre-trial hearing. At all stages, when additional evidence was served, the defence was given as much time as they needed to consider it. I do not, in fact, consider the number of notices served was excessive or particularly unusual in a trial of this kind. I am satisfied that at all times, the defence were afforded as much time as they needed to consider any evidence that was served on them. There was therefore no unfairness or prejudice to them by the service of the additional evidence. I therefore refuse to discharge the jury on this ground, and because I find there was no unfairness or prejudice to the accused, this argument does not add weight to the cumulative argument being advanced.”

Again, the judge dealt with the second ground as follows:

“The second issue is also one the Court has already dealt with; it relates to the deceased Garda O'Mahony. He had an involvement in the investigation, but his name was not read to the jury panel during the empanelling process. After evidence had commenced, as already dealt with at the stage that this application was already made, the Court received a note to the effect that one of the jurors recognised Garda O'Mahony's name as being a friend, I think, of her husband's brother. An application to discharge the jury was refused. The Court was and still is satisfied that there was no personal relationship between any juror and Garda O'Mahony. In addition, although Garda O'Mahony was mentioned during the course of the evidence, no statement of his sought to be relied upon by the prosecution. The unidentified juror properly drew the fact they recognised the name to the attention of the Court, but did not suggest they had any difficulty continuing as a juror or knew anything about the case prior to being sworn. Out of an abundance of caution, having received the note and heard submissions from counsel in the application to discharge, the jury were told that if for any reason, any of them felt they could not continue to act impartially as a juror, they should draw that to the Court's attention. No member of the jury did so. I was and remain satisfied that the matter was properly brought to the Court's attention on the part of the relevant unidentified juror, and that if they felt they could no longer continue to act impartially, they would have brought that to my attention. As I pointed out in making the ruling, the fact that person might be excused as a juror prior to being sworn does not mean they must be excused or the jury discharged later in the trial, so long as all members of the jury can adjudicate impartially on the evidence. I was at the time of the making of the application to discharge satisfied there was no unfairness to the accused in allowing the trial to continue with all 12 jurors. I remain satisfied that there is no unfairness or prejudice to either accused by virtue of the very remote connection between one of the jurors and deceased Garda O'Mahony. This issue does not, therefore, add weight to the cumulative argument now being advanced.”

We therefore reject the proposition that there was any error in respect of either of these, still less that any issue arises under P O’C or otherwise. Issue No. 3

119. Issue no. 3 concerns two inadvertent remarks made by counsel for the prosecution to one ‘Mark Carlyle’ instead of Seán Carlyle. Counsel for the appellant submitted that Mark Carlyle is a person whose criminality is “very much in the public domain” and that the appellant was accordingly prejudiced by these inadvertent mistakes. Counsel for the respondent submitted that the risk of the purported prejudice was remote and said that for such prejudice to actually accrue the jurors would have had to ignore the direction given not to conduct research on the internet during the course of the trial.

120. The judge ruled on this issue as follows:

“The third issue relates to the fact that counsel for the prosecution and Mr Staines twice used the name Mark Carlyle when he meant Sean Carlyle before the jury. I'm told that Mark Carlyle has been before the Courts and that any association between them is prejudicial to Sean Carlyle. I'm satisfied it was a simple mistake by counsel for the prosecution, which he corrected. He can do so again in his closing speech if the defence want him to. The jury have been told repeatedly not to look up anything about the case on the internet and to avoid any reporting of it. I am sure they follow that direction and in any event, I am satisfied that they will decide the case on the evidence and not on the basis of an innocent mistake by counsel. I have already ruled on this basis and state the above for clarity and I find that there is no prejudice to the accused in that regard and this argument does not add weight to the cumulative argument now being advanced.”

121. First, the idea that the mention of a name of a third party inadvertently on a few occasions could impinge upon the adjudication by the jury of the evidence against the accused is not stateable. In any event, if it is correct, it presupposes prejudice on the part of the jury, breach of the directions of the judge, and the sort of minor, perhaps one may even say trifling, error which can creep into a trial inadvertently without consequence.

Issue No. 4

122. It is contended also that Mr Caryle was to be distinguished from Mr Disney because, in effect, he was disabled from putting his character in issue or at least evidence could not have been adduced (presumably because of prior convictions) favourable to him in distinction to Mr Disney who had apparently one minor conviction. It is said that this gives rise to the necessity for a separate trial, but no such application was made.

123. The judge ruled on issue no. 4 as follows:

“The fourth issue raised is said to feed into two other specific issues; it relates to cross-examination by counsel for Philip Disney of Garda Damien Reilly to establish Philip Disney's good character. It's a point that I do not believe was raised in isolation as a basis for discharging for the jury. During the course of the cross-examination on behalf of Mr Disney, it was established that Mr Disney had one minor previous conviction. It is contended on behalf of Sean Carlyle that that creates a distinction between the two accused in which the jury will draw the inference that Sean Carlyle had previous convictions. He says that that would have been a sufficient basis to justify a separate trial, but separately says that even if he was tried on his own, it would be unfair. As counsel for Sean Carlyle properly concedes, there are hazards in joint trials. The holding of a joint trial is a balancing exercise to some extent.

There can be very significant unfairness to the prosecution if there are separate trials in which each accused can point the finger of blame at the other, and it's therefore desirable that the jury hear the entirety of the evidence against both accused at the same time. The jury will be told they must try the case on the evidence as it exists in respect of each accused individually. With one relatively minor exception that I will deal with shortly, there is no evidence of any prior criminal wrongdoing on the part of Sean Carlyle before the jury. The evidence that was led in cross-examination in respect of Mr Disney does not render the trial unfair in respect of Mr Carlyle. I am therefore satisfied that it does not justify discharging the jury, and that it adds no weight to the cumulative application.”

Issue No. 5

124. Complaint was also made about garda evidence of sightings of Mr Carlyle in his van with the implication that he may have been guilty of some road traffic offence. The judge ruled on this issue as follows:

“The fifth ground is related to ground four and was advanced on the basis of an earlier application to discharge, and relates to evidence from Garda Damien Reilly that he saw Sean Carlyle driving a black flowers.ie van in July 2019. The sighting took place in a petrol service station. Garda Reilly said he recognised Sean Carlyle. He also said he had made a note of the van's registration number in his garda notebook. No objection was taken to that evidence. The basis for the earlier application to discharge was that Garda Reilly also said that he was not in a position to stop Sean Carlyle, or words to that effect, which it is contended on behalf of Sean Carlyle gives rise to a specific and particular prejudice to him. The basis upon which all of the identification was given was that the relevant garda knew Sean Carlyle, in fact both accused, by virtue of his work as a community guard for 10 years. At the time of the relevant sighting in July 2019, Garda Reilly was in an unmarked car. The fact that Garda Reilly said he did not stop Sean Carlyle is no more prejudicial than the rest of his evidence about that sighting which was not objected to.”

125. Evidence of sightings was perfectly justified to prove Mr Carlyle’s connection with the vehicle. This evidence does not necessarily give rise to the implication of criminality or certainly of criminality of such significance as to impinge upon the discharge by the jury of their duty in accordance with the judge’s directions. As prosecuting counsel pointed out, the identity of Mr Carlyle was contested in the teeth of overwhelming evidence.

Issue No. 6

126. The judge ruled on issue no. 6 as follows:

“The sixth ground is related to grounds four and, to some extent, five above; it concerns the evidence of Garda Thomas Murray. He said he observed Sean Carlyle loading a bicycle into the back of the flowers.ie van on the 1st of July 2019. He said he took an interest in it and that he took a note of the registration number. He said, as I understand it, that he knew Sean Carlyle by virtue also as having worked as a community garda. He made a second sighting of the van on the 24th of August 2019 outside the Killinarden Inn at I think 19:45 or thereabouts. That evidence was not objected to. As part of his evidence, he said words to the effect that following from that initial observation, he was cognisant to locate the van. It is submitted on behalf of Sean Carlyle that the jury will infer that Garda Murray wanted to stop the van because he suspected Sean Carlyle was involved in criminality. As with the earlier related points, the excerpt from Garda Murray's evidence to which objection is taken is no more prejudicial in my view than the rest of his evidence, in relation to which no objection was taken earlier in the trial hearing or before Garda Murray gave evidence. I, therefore, find this ground is insufficient to justify discharging the jury.

Considering the cumulative impact of the above grounds, in particular grounds five and six, it is to be noted in the first instance that the defence were on notice of the evidence in question and took no objection to the substance of any of it. Either individually or in full knowledge that it was the intention of the prosecution to lead the substance of the evidence of both Garda Reilly and Garda Murray. The evidence to which no objection is taken was to the effect that on two separate occasions, gardaí had taken note of Sean Carlyle's whereabouts and of the vehicle he was associated with. The additional part of the evidence to which objection is taken does not render the evidence as a whole any more prejudicial such, in my view, as to warrant discharging the jury. I do not accept that those two pieces of evidence taken together and even considered with the other grounds being advanced and in particular ground four, are such that there is a real risk that they would cloud the jury's critical judgement to the point where the accused would not get a fair trial. Some material, although unrelated to an offence charged, can be so prejudicial that it could not be left in the mind of a jury. Evidence of involvement or allegations of involvement in violent crime, for example; that is not the position here. The material about which complaint is made is not evidence of wrongdoing at all. It is no more than evidence that gardaí who knew the accused for reasons unrelated to any criminal wrongdoing noted his presence on two occasions with the flowers.ie van. The association between the accused and the flowers.ie van is a central feature of the prosecution case and of significant probative value. That association is clearly an issue in the trial. The substance of the evidence of Garda Reilly and Murray was not objected to. Any additional prejudicial effect, if any, is outweighed by the probative value of the evidence. I am satisfied that whether looked at individually or taken together, those three grounds do not give rise to a real or any substantial risk of an unfair trial and are, therefore, not a basis for discharging the jury.”

127. No objection was taken to this evidence. Apart from that the same conclusions must be reached in relation to its introduction as in the previous ground. The judge was right to reject this argument.

Issue No. 7

128. The judge ruled on issue no. 7 as follows: “The seventh ground relied on Mr Sean Carlyle's absence from court over the last few days due to ill health -- over a number of days due to ill health. It is an argument not previously advanced. It is submitted that on occasion, prison staff remained in court when Sean Carlyle was there alone, but while Philip Disney was in court on his own, no prison staff were present. The argument is that the jury could draw the inference that Sean Carlyle is in custody. In the first instance, it should be noted that this matter was not drawn to the Court's attention at the relevant time. The jury were only present in court for a few minutes at a time over the days when Sean Carlyle was absent. This is not an instance of an accused being seen in handcuffs or otherwise in the custody of prison staff. The Court was very careful to ensure that during those very short periods when Sean Carlyle appeared over a video link from custody, that the jury could not see him. It was made very clear to the jury at all times that the reason he wasn't in court was because he was not well. I can see no prejudice on the basis contended for that would justify discharging the jury and refuse to do so on that ground.”

129. It is unthinkable that the fact that Mr Carlyle was not in court for a few days because of a health issue or that prison officers were present when Mr Carlyle was present but not when Mr Disney was there on his own that there is something in the nature of an inference of bad character. Apart from the brevity of the periods when those situations arose if there is to be the most rudimentary respect for a jury’s impartiality the fact of the presence or absence of prison officers in a given case could not possibly influence them. It ignores the fact that if anything juries would be surprised to see that there were no prison officers present.

Issue No. 8

130. The judge ruled on this issue as follows:

“The eighth ground relates to evidence where Garda Brogan, when under crossexamination by Sean Carlyle's own counsel. He put it to her that Sean Carlyle had been disqualified from driving and the case is made that that is why he said he was not driving the flowers.ie van, there having been evidence of that earlier in the trial.

The submission is made that counsel had to adduce evidence sorry, had to adduce that evidence; I do not accept that submission. The evidence that Sean Carlyle told Garda Brogan he had not been driving a van is potentially probative evidence. The prosecution did not, quite properly, lead the evidence that Sean Carlyle had been disqualified from driving at the time. It was then for the defence to make a tactical

decision whether or not they would introduce that fact through cross-examination.

They made the decision to lead the evidence, and there is no basis to discharge the jury based on that decision.”

131. It is also said that for whatever reason counsel for the defence was put in a position whereby they he had to elicit evidence from a garda to the effect that his client had been disqualified from driving with a view, it seems, to undermining the proposition that he could be seen driving the van in question. He was not put in that position. He made a free choice to introduce evidence which might or might not be regarded as prejudicial. It might be supposed as a matter of reason that a jury trying a man for murder would regard the idea of disqualification as trifling. In any event it is admissible on the issue.

Issue No. 9

132. It is also suggested that because a garda indicated that other persons who had not made statements were found at the scene some prejudice arises. The judge ruled on that issue (no. 9) as follows:

“The ninth ground relates to an issue already raised about evidence led from one of the first gardaí who arrived at the location where Vincent Parsons was found, that being Garda Sean Lawlor. His evidence was to the effect that the three individuals who were there were not in a position to give evidence, meaning they weren't in a position to make statements to give evidence at trial. It is submitted that that evidence is misleading and adds to general unfairness. The fact is that none of the eyewitnesses did make statements to the gardaí. No actual prejudice is even contended for by the accused. I'm satisfied that there is no prejudice or unfairness and that this point adds no weight to the overall argument being advanced.”

We cannot begin to understand how this point could have any substance.

133. We think that the judge was right in all respects.

134. We cannot see why any of these factors could form a basis for a successful application for a directed acquittal under the P O’C jurisdiction. Some one or more of them might give rise to an application for a discharge of the jury but such was not made (we do not wish to be taken as indicating that any such application was well founded): we hardly need to say that this jurisprudence pertains to circumstances where a fair trial in accordance with constitutional justice cannot be obtained not primarily because of errors (if there are any)

in the course of the trial but because of what we might call extrinsic factors such as delay or nonavailability of essential witnesses rather than issues of this kind. On that ground alone, we think that there is no basis for complaint about the refusal of the judge to direct an acquittal.

135. We therefore reject ground no. 4 of Mr Carlyle’s appeal.

136. Given that none of his grounds of appeal have been upheld, we accordingly dismiss this appeal.