Court of Criminal Appeal refused leave to appeal conviction for manslaughter after trial judge properly recharged jury on witness conflicts.

COURT OF CRIMINAL APPEAL

Macken, J. [Record No. 208/09]

Budd, J.

O’Keeffe, J.

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-AND-

RONALD McMANUS (A.K.A. RONALD DUNBAR)

APPLICANT

Judgment of the Court delivered on the 12th day of April, 2011 by Macken, J.

This is an application for leave to appeal against conviction and sentence.

The applicant was charged with the murder of a teenager called Melissa Mahon, the charge being that on a date unknown, but

between the 14th September, 2006 and the 30th September, 2006, at premises in Sligo, the applicant had murdered Miss Mahon,

contrary to common law and to s.4 of the Criminal Justice Act 1964. A lengthy trial took place, in April and May, 2009. The applicant

was found not guilty of murder, but was convicted of manslaughter. The learned trial judge sentenced the applicant to imprisonment

for life in respect of the manslaughter charge, and as mentioned above, the application for leave to appeal against sentence will be

dealt with, if necessary, at the end of this judgment on the issue of his conviction.

By a Notice of application for leave to appeal dated the 17th July, 2009, the applicant lodged this application seeking liberty to appeal

on several grounds, numbering eleven in all. These are as follows:

1. The learned trial judge erred in fact and law in refusing the applicant’s application that he direct the jury to acquit the

applicant on the basis of the evidence presented by the respondent. Further, by reason of the inconsistencies, infirmities

and unsupported nature of the prosecution case, the learned trial judge ought to have withdrawn the case from the jury.

2. The learned trial judge erred in failing to grant the application made on behalf of the applicant to withdraw the case

from the jury at the end of the prosecution case for the reasons stated in trial.

3. The learned trial judge erred in not discharging the jury and by allowing them to continue their deliberations in the

absence of a segment of videotaped evidence of Samantha Conroy that they had requested to have replayed during their

deliberations.

4. The learned trial judge erred in fact and law in allowing Samantha Conroy, a person over 18 years, to give evidence by

way of video link.

5. The conduct of the trial judge was such as to give rise to a perception of bias in the mind of an objective bystander.

His conduct demonstrated bias and his comments in relation to the applicant were beyond such level and scale

appropriate for a trial judge and rendered the process imbalanced.

6. The learned trial judge failed to adequately or properly present the defence case to the jury during the course of his

charge to the jury and further, in the alternative, the learned trial judge failed to present the defence case in a manner

which was fair to the applicant in all of the circumstances.

7. The conduct of the trial was manifestly unsatisfactory and not in due course of law.

8. The finding of the jury was perverse and went against the evidence as well as the weight of the evidence.

9. The evidence of the two principal witnesses for the prosecution, Samantha Conroy and Heidi McManus, was inherently

unreliable and in the circumstances the learned trial judge erred in law in failing to give sufficient warning as to the

dangers of convicting upon such testimony.

10. That in all the circumstances of the case the evidence was of such a nature as to be inherently weak and rendered

the conviction of the applicant unsafe and unsatisfactory.

11. The applicant was not afforded his constitutional right to a fair trail due to the adverse and extensive media coverage

of the case. The identity of the applicant and his relationship by blood to the prosecution witnesses, and the nature of

their relationship to the deceased, gave rise to a disproportionate and prurient expression of interest in the details

covered by the press.

Detailed written submissions, which were very helpful to the Court, were filed on behalf of the applicant and also for the respondent.

The Court was in a position to consider these in advance of the oral hearing, together with all the appropriate transcript evidence

adduced during the course of the trial, all applications made and the learned trial judge’s rulings.

At the commencement of the oral hearing, this Court indicated that several of the grounds could be dealt with together. Further, in

relation to ground 11, based on an allegation of adverse media coverage, not only had no such issue been raised during the course of

the trial, there was no evidence or material presented to this Court concerning any media coverage, adverse or otherwise, upon

which this Court could make any findings whatsoever. Senior counsel for the applicant, Mr. Fogarty, accepted that no such material

had been presented. In the circumstances, this Court ruled that it was not in a position to entertain any application pursuant to

ground 11.

Background Facts

The background facts to this matter are fully set out in the evidence tendered in the Central Criminal Court, but for the purposes of

understanding the arguments made by the parties it is necessary to refer to them briefly. Melissa Mahon was a young girl who was

born in March, 1992. In September, 2006, at the time of her death, she was 14. The applicant was, at that time, 42 years of age.

Miss Mahon was a troubled girl who had left home repeatedly in the period before her death. She came to know the applicant because

she was a friend, and almost of the same age, as two of the applicant’s daughters, Samantha and Heidi. They had another sister,

Shirley, who also featured in the evidence in the course of the trial, but Miss Mahon was more friendly with the older two girls.

Because of that friendship she spent quite an amount of time in the home of the applicant, which was near her own home in the same

part of Sligo.

Miss Mahon went missing from her home on one of the above occasions, the 3rd August, 2006, and was found by her mother in a

shed at the back of the applicant’s house. However, she went missing again the next day and was reported to the gardai as being

missing, by her mother. She remained unavailable or missing for approximately three weeks. However, according to the evidence

adduced in the course of the trial, Miss Mahon spent those three weeks in the applicant’s home, during which time the applicant did

not tell the social workers involved, or the gardai, of her whereabouts. When those parties came to the applicant’s home looking for

her, he instructed her to hide behind the sofa, and said that he did not know where she was, but that he would try to use

connections to find her. Towards the end of this three week period, again according to the evidence, with the assistance of his then

girlfriend, he executed an elaborate plan to have Miss Mahon brought to a remote location to meet a social worker there, while at the

same time maintaining he was liaising with her through intermediaries.

Miss Mahon entered residential care in late August, 2006 at a Children’s Home, pursuant to an emergency care order and a

subsequent District Court order. She had, however, frequent contact with the family of the applicant after her admission to the

children’s home, and the applicant and his daughter, Samantha, called for her on a regular basis. She was absent from the care home

for periods between the 31st August and 1st September, 2006, and again between the 2nd and 4th September, 2006, and it was

considered that the time she was spending away from the care home with the applicant interfered with the therapeutic work of the

centre, and was a source of concern to staff. A District Court order was made on the 7th September, 2006 prohibiting the applicant

from having contact with Miss Mahon without the prior consent of her social workers. Up to that date she was absent for sustained

and repeated periods between the 7th and the 13th September, 2006. She was then placed in foster care in County Leitrim. However,

she left on the evening of the day she was admitted, moved to a neighbouring house and was later taken from there by her social

worker. After purchasing clothes, her social worker took her to premises in Sligo, where Miss Mahon went to change her clothes. She

left the building, however, without returning to the care of the social worker, and had no further contact with social services after

that date, prior to the date of her death.

Evidence was tendered that the applicant had commenced an inappropriate relationship with the young girl, but the learned trial judge

did not accept that this had been established beyond reasonable doubt. The applicant’s then girlfriend, Ms. Sheridan, gave evidence

that the applicant stated he would “not go to prison for Melissa Mahon” and would kill her by strangling her. According to the

evidence, this remark was made in the presence of the applicant’s daughter, Shirley, but the latter in evidence said she did not

remember this remark, although she was able to remember a conversation about the applicant possibly going to prison.

At around the date when Miss Mahon went missing for the last time, the applicant moved home from No. 64 Rathbraughan Park to an

adjoining house on the 15th September, 2006. Evidence was tendered that the applicant continued, however, to have access to No.

64 and that Melissa Mahon, according to his daughters’ evidence, stayed there with his assistance.

Evidence was also given by both Samantha and Heidi. Their evidence, given by video link, extended over a number of days, and was

the subject of considerable debate in this application for leave to appeal. Their evidence is undoubtedly critical, and the Court will

deal with it in detail later in the judgment. In general, however, the evidence of these two daughters was to the effect that the elder

daughter came home from a Youthreach programme around 5 p.m., the younger daughter being already in the house; that they went

upstairs where they saw the applicant and Melissa Mahon lying on a bed. At some point during this period, they agreed that Melissa

Mahon was breathing or that her chest was moving up and down. Subsequently she was not breathing. Their evidence was also that

she was placed, head first, in a sleeping bag; and was brought downstairs, placed in the boot of the applicant’s car, and he drove the

car with these two witnesses to a remote location on a river. The applicant, with assistance from one or both of his daughters, threw

the sleeping bag, with the deceased in it, into the River Bonet.

A considerable time later, in 2008, on the shores of Lough Gill, into which the River Bonet flows, and about 850 metres from the point

of entry identified by the applicant’s daughters, a body was found in a sleeping bag. The reason why a search was being carried out

was because a statement had been made to gardai about the killing of Melissa Mahon, sometime at the beginning of February, 2008,

Heidi having given some account of it to her youngest sister, Shirley and her boyfriend, who had, in turn, called the gardai. The

evidence tendered during the course of the trial indicated that the cause of death could not be medically established, having regard

to the state of the body when it was recovered.

It is against that factual background, as adduced in evidence, that the application for leave to appeal arises, the trial having

commenced on the 21st day of April, 2009. It concluded on the 27th May, 2009.

Grounds 1 and 2

It is proposed to deal with grounds 1 and 2, which have a common basis, together. The first relates to the alleged failure by the trial

judge to accede to the application made on behalf of the applicant during the trial to withdraw the case from the jury at the end of

the evidence led by the prosecution. The second ground alleges that the learned trial judge also erred in law in refusing the defence

application to direct the jury to acquit the applicant on the basis of the evidence adduced by the prosecution. The basis alleged are

the inconsistencies and infirmities in the evidence, and the unsupported nature of the prosecution case.

Mr. Fogarty, senior counsel on behalf of the applicant, refers to the written submissions, in which the applicant invokes English case

law, including R v. Galbraith [1981] 73 CR.App.R 124 and R v. Shippey [1988] Crim.L.R 767, both of which have been adopted with

approval in this jurisdiction in People (DPP) v. Barnwell (unreported, Central Criminal Court., 24th January 1997) and People (DPP) v.

Morrissey (Unreported, Court of Criminal Appeal, 10th July, 1998). The applicant relies on the following extract from the case law as

representing the correct position in law in relation to the issue of whether a case should go to the jury in circumstances of

inconsistent, or little, evidence:

“(A) If there is no evidence to prove a circumstantial element of the offence, a submission must obviously

succeed.

(B) If there is some evidence which - taken at face value - establishes each essential element, the case should

normally be left to the jury. If, however, the evidence is so weak that no reasonable jury, properly directed, could

convict on it, a submission should be upheld. Weakness may arise from the sheer improbability of what the witness

is saying, from internal inconsistencies in the evidence or from its being of a type which the accumulated

experience of the courts has shown to be of doubtful value, especially in identification cases. The question of

whether a witness is lying is nearly always one for the jury, but there may be exceptional cases (such as Shippey)

where the inconsistencies are so great that any reasonable tribunal would be forced to the conclusion that the

witness is untruthful and that it would not be proper for the case to proceed on that evidence alone.”

Mr. Fogarty argues that there were very significant and fundamental inconsistencies between the evidence of Samantha Conroy and

that of her sister, Heidi, as well as internal inconsistencies in the evidence of each of them, such that the story given by Heidi was

bizarre and utterly incredible, and that of Samantha equally so. It was, having regard to the serious inconsistencies, and to the

nature of these, impossible to conclude that a jury could reach any valid or proper verdict.

Ms. Kennedy, senior counsel for the respondent, submits that there was no error in principle, nor any error in law, on the part of the

trial judge, in refusing the application to withdraw the case from the jury at the end of the prosecution case, or in failing to direct the

jury to acquit the applicant on the basis claimed. It is accepted by the respondent that the cases of R v. Galbraith and R v. Shippey,

supra., correctly represent the law as adopted in this jurisdiction, on the issue. However, counsel for the respondent argues that

these cases are subject to a recognition on the limits of the trial judge’s role in an application of the type in issue, and she invokes in

that regard the case of R v. Barker [1977] 65 CR.App.R 287, in which Widgery, LJ, stated:

“It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily

with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is

not the judge’s job to weigh the evidence, to decide who is telling the truth, and to stop the case merely because he

thinks the witness is lying. To do that is to usurp the function of the jury.”

The respondent also relies on the decision of this Court in The People (DPP) v. M. (Unreported, Court of Criminal Appeal, 15th February

2001), in which, when considering the manner in which the learned trial judge ought to proceed in such cases, Denham, J., stated:

“If a judge comes to the conclusion that the prosecution evidence taken at its highest, is such that a jury properly

directed, could not properly convict, it is his duty to stop the trial. However, that is not the case here. Here there is

lengthy evidence from the complainant in which there are some inconsistencies. These inconsistencies are matters

which go to the issues of reliability and credibility and thus, in the circumstances, are solely matters for the jury …

These are matters quintessentially for the jury to decide.”

Further, counsel for the respondent points out that the application made on behalf of the defence at trial was not, in fact, based on

the alleged inconsistencies which are now the basis of these grounds. In the circumstances, counsel urges this Court to take the

view that, in placing particular reliance on the allegations of inconsistencies at this time, the applicant is making a different case to

that made in the court below, which is not permissible having regard to the principles established, inter alia, in The People (DPP) v.

Cronin (No. 2) [2006] 4 I.R. 329. Moreover, although argued on different grounds, counsel for the accused at the trial had agreed

that the jury was entitled to accept the evidence of one witness, and reject an account given by another witness.

Finally, while the respondent accepts that there are some inconsistencies, counsel points to many statements, which it is contended

are highly consistent and are central to the issues in the case, and therefore argues that the learned trial judge was correct to refuse

the applications, and leave the matters to the jury to decide.

Conclusion

These two grounds for leave to appeal relate exclusively to the alleged inconsistencies in the evidence given, leading, it is said, to

there being no real evidence against the applicant, the applicant being of the view also that, quite apart from the inconsistencies, the

evidence itself was so unreliable and infirm that it could not properly, or safely, be left to the jury. The main argument made on behalf

of the applicant is that there were “dramatically different” accounts given by Samantha Conroy, the older of the two girls, and her

younger sister, Heidi. These inconsistencies include the following:

• Samantha said that on the day in question she pushed the front door of their house open. Heidi said that

Samantha knocked on the front door and she, in turn, let her in.

• Samantha said Heidi was crying at the time. Heidi denied that she was crying.

• Samantha said that Heidi said “Don’t go upstairs”. Heidi gave evidence that she told her sister “Come and look”

and that both girls went upstairs together, whereas Samantha states she went “ahead of her sister”.

Insofar as the events in the bedroom on the day in question are concerned, the inconsistencies include the following:

• Samantha stated that her father’s right arm was around Melissa Mahon, in the neck area.

• She got the impression that he was giving Melissa a hug.

• He did not appear to be holding Melissa Mahon’s neck tightly.

• She agreed it was a gentle gesture, and a non-violent gesture, and that she did not see him inflict any violence

on Melissa.

• Heidi states that there was a conversation in the bedroom and that the applicant told herself and Samantha to

get out of the room.

• Heidi gave evidence that the applicant had said the deceased had tried to kill him and that the deceased was

going to Canada.

• Samantha gave evidence that when she turned on the light her father pulled away from Melissa Mahon, who fell

on her back, and that her chest was moving and that she tried to resuscitate her, her father having left the room.

• Samantha gave evidence that the applicant came back up the stairs with a sleeping bag and put Melissa Mahon

into it, and having got a tie from his wardrobe, tied the end of the sleeping bag and then carried her body in the

sleeping bag down the stairs and put it in the boot of the car.

• Heidi gave evidence that the applicant asked her and Samantha to hold the tie, each girl holding either end

around Melissa’s neck while he went to the bathroom. And she said that the applicant placed a pillow over the

deceased’s face.

• Heidi said that the applicant told Samantha to get the sleeping bag, which she did.

• Heidi said that the applicant made Samantha help carry the bag, Samantha saying the applicant carried it.

• Finally, on this point the positioning of the two girls in the car is different.

There was also some disagreement or inconsistency between the versions given by both of them as to what precisely took place at

the River Bonet. It is also pointed out on behalf of the applicant that Heidi gave different accounts of what had occurred, to the

gardai, and to a radio presenter, and each of which was different again to evidence given at trial.

The prosecution accepts that there were several inconsistencies in the evidence tendered by Samantha and by Heidi, and even

internal inconsistencies in the evidence which each of them gave. However, the prosecution contends that the applicant cannot

submit that the evidence of Heidi was completely inconsistent with Samantha’s, and points to the following table of what are called

“important common features” in their evidence. The two witnesses agree on the following:

• Samantha Conroy returned from a Youth Reach programme around 5 p.m. on the day in question.

• The applicant and Melissa Mahon were lying on the bed upstairs, she with her back to him and both facing the

wardrobe.

• Melissa’s clothing consisted of a beauty and the beast nightdress and black pants.

• The applicant had his right arm around Melissa’s neck.

• Melissa’s arms were by her side.

• The curtains in the room were drawn and then the lights were turned on (although they disagree who it was who

actually turned on the lights).

• Melissa Mahon was initially breathing.

• Melissa Mahon’s chest was moving up and down.

• Melissa Mahon’s body was put head first into the sleeping bag.

• The sleeping bag was tied with a necktie around the end where Melissa’s feet were (although they disagree when

precisely this was done).

• The sleeping bag was placed in the car which was driven by the applicant.

• The sleeping bag was dragged along the ground near the River Bonet.

• The sleeping bag was swung into the water.

• The sleeping bag sank slowly.

• On returning home, the applicant and both witnesses were collected by a friend of the applicant to go to the

applicant’s football match.

Both witnesses also agreed in relation to the route which was taken with Melissa’s body to the River Bonet. The respective points of

entry identified independently by each of them were “just within a couple of feet of each other” according to the evidence of

Detective Sergeant Lee. This detail as to the point of entry was confirmed by objective examination, according to the evidence of

Lieutenant Commander Hever, on his analysis of the flow of the River Bonet. The sleeping bag was found with the necktie knotted

around it and with the nightie, as described by the witnesses in it.

Apart altogether from the respondent’s contention that the application was made during trial on a different basis to that now being

invoked - and this Court does not consider it appropriate to deal with this particular application on that basis, having regard to the

length of the trial and the extent of the evidence adduced - it seems to the Court that in a complex case of this nature where the

key events took place in the presence, or in the sometime presence, of the witnesses in question, it is inevitable that there may or

will be differences in the recollections of witnesses, or in the precision of those recollections, in particular in the case of witnesses of

the young ages of those two under consideration here.

Even taking the comparisons which are given by the applicant as indicative of inconsistencies, with the exception of the applicant

requiring Samantha to go and get the sleeping bag and bring it back upstairs - evidence tendered by Heidi, whereas Samantha gave

evidence that the father had himself gone and got the sleeping bag - the key and critical elements in the scenario painted by both

witnesses in evidence are remarkably similar. The applicant was in bed with a fourteen year old girl, Melissa Mahon. Her arms were

down by her side with her back to the applicant and his arm, or arms, were around her neck. Whereas when the applicant took his

arms away her chest was moving up and down, later it wasn’t. Her body was put into a sleeping bag, whether procured by the

applicant or whether procured by Samantha at the applicant’s request. The bag was put into the car. The car was driven by the

applicant by a particular identified route. The body was thrown into the River Bonet, whether by the applicant alone, or by the

applicant with the assistance of his two young daughters. Independent evidence was also tendered to support what these witnesses

said. These included the fact that the sleeping bag, together with the necktie around the bag, and including the pyjamas which

Melissa Mahon was wearing on the night when she was put into the sleeping bag, and which they both described, were found, as

were human remains. These are all elements of a key nature concerning the charge, and in respect of which both witnesses were

wholly or substantially in agreement.

Where the witnesses were not in agreement, these were undoubtedly matters which went to the credibility of each of those

witnesses, and to their reliability bearing in mind their age, their relationship with the applicant and with Melissa Mahon, and other

surrounding circumstances. The position in the course of the trial, as it evolved, having regard to this evidence, was such that the

decision on the reliability and credibility of the two witnesses was one essentially for the jury, in line with the citation from the

judgment of Denham, J. in The People (DPP) v. M., supra., which follows English case law which both parties agree is applicable. They

were, of course, important matters for the jury, but were quintessentially issues of reliability and credibility which a jury, properly

charged, was entitled to have left to it to consider.

The learned trial judge considered the application in detail, and was entitled to reach the conclusion, both on the materials before

him, and on the case law relating to such matters, to leave the issue of the inconsistencies as well as the reliability and/or credibility

of the witnesses to the jury. Taken at its height, which the learned trial judge was obliged to do at the time of the application for the

direction, there was more than adequate evidence adduced by the prosecution of the applicant’s intimate involvement in the events

leading to the charge, such as to allow the challenged evidence go to the jury. Similarly, on the refusal of the request for a direction

to acquit, the Court is satisfied there was no error in law by the learned trial judge in the manner in which he dealt with the

applications.

Grounds 1 and 2 of the application are not made out, and are refused.

Ground 3

As concerns ground 3, it is claimed by the applicant that the jury sought, during their deliberations, to view again the video of the

evidence of Samantha Conroy. The learned trial judge enquired if it was sufficient for him to read the transcript to them. The foreman

indicated that the preference was to see the video. It is alleged that in failing to provide the jury with the opportunity to review the

video evidence, the trial was not fair in law. It transpired, however, that, in any event, the particular evidence had not been video

taped, due to a technical malfunction. It was argued that the absence of the video evidence which the jury wished to see for a

second time, was such that it went to the very root of the case for the defence, and as to whether or not the applicant received a

fair trial.

On behalf of the prosecution it is submitted that there was no basis in law upon which this ground could succeed. Pursuant to the

provisions of the Criminal Evidence Act, 1992, Samantha Conroy was permitted to give evidence by means of video link. That Act

does not provide any exception to the normal rule or practice that a jury may not be given an opportunity to hear the evidence of a

person again, but transcripts of the evidence may be read over to them.

Conclusion

In the present case there was a transcript of the evidence available, and, in fact, the jury had taken this into account and the

foreman indicated that they recognised that a video recording might not be available, and according to the transcript “had agreed

that they could hear the recording or the transcript”. There is no reason, in the present case, to conclude that a reading of the

transcript of Samantha Conroy’s evidence, given in the same manner in which evidence, if requested, is read over in all such cases,

was in any way inadequate for the purposes of the trial, or could be construed as tending to establish a real or serious risk of an

unfair trial for the applicant. The transcript of the evidence in question was read over and no further issue arose.

This ground for leave to appeal is refused.

Ground 4

Ground 4 concerns the objection raised that Samantha Conroy was permitted to give the above evidence referred to in Ground 3 by

means of video link, even though at the time of giving the evidence she was a person over 18 years of age. It is the applicant’s

submission that the learned trial judge erred in the exercise of the discretion vesting in him to permit Samantha Conroy to give

evidence by means of video link. It is submitted that where a witness gives evidence in the ordinary course of events, the jury has

the greatest possible opportunity to assess the demeanour, deportment and reaction of such a witness in examination and cross-

examination. Such matters are not as evident, or as readily visible, when a witness is testifying from outside the physical confines of

a courtroom, as this does not permit the viewing or appreciation of the subtle distinctions of giving evidence vive voce in open court,

these distinctions being less evident in the case of evidence given by a video link facility. It is argued that fair procedures dictate

that the witness should be required to give evidence on oath, physically, in the presence, and under the scrutiny, of the judge and

jury.

Moreover, it is contended for the applicant that while the learned trial judge is permitted to depart from the above standard

procedure, that departure can lawfully be made only on the basis of what the applicant calls “strong evidence”. In the present case it

is said that evidence was adduced that the witness had a concern that she might “freeze” or be unable to answer questions when

giving evidence: that she did not want to confront her father face to face: and that she did not wish to give evidence in front of a

crowd. This evidence was given by a social worker, Ms. Mullen, in response to questions posed by the learned trial judge as to

whether or not the witness would fit the category of being “fragile and vulnerable”, as referred to in the applicable legislation. It is

argued that this evidence was at variance with the opinion expressed by Dr. McDwyer, to the effect that the witness had a “strong

and direct” personality. In the circumstances, the evidence called on behalf of the prosecution was insufficient to justify the learned

trial judge departing from the norm, because it referred only to possibilities that might arise, whereas the view expressed by a

professional person as to the strength and direct personality of the witness herself should have held sway. The applicant was

prepared to stay in his cell, and out of the courtroom, while this witness gave evidence, in order to assist in alleviating her concerns,

and this should have been sufficient protection for the witness.

This ground is opposed by the respondent. It is submitted that the learned trial judge was correct in law in exercising his discretion to

permit the evidence of the witness to be given by means of a live video link, as is fully permitted under the provisions of s.13 of the

Criminal Evidence Act, 1992, in any case in which it is held to be “appropriate”. Provided therefore that the discretion was exercised

in a judicial manner in the present case, and it is contended it was, it is submitted that the Court should not interfere with the ruling

of the learned trial judge. The respondent also invokes the decision in White v. Ireland [1995] 2 I.R. 268 in which it was held that a

defendant does not have the right to have witnesses giving evidence against them present in court, and to Donnelly v. Ireland [1998]

1 I.R. 321, a decision of the Supreme Court which accepted that the concept of a trial in due course of law as elucidated in State

(Healy) v. Donoghue [1976] I.R. 325, includes the right of an accused to test vigorously by cross-examination the evidence against

him. Nevertheless, the Supreme Court held that the assessment of a witness’s credibility does not require the evidence to be given in

the physical presence of an accused, and there is no Constitutional requirement that it should be so. The right to fair procedures was

adequately protected, according to that judgment, by the requirement that the evidence be given under oath which could be tested

in cross-examination.

Conclusion

According to the provisions of s.13 of the Criminal Evidence Act, 1992, as amended, the following is the position:

“In any proceedings for an offence to which this Part applies, a person other than the accused may give evidence,

whether from within or outside the State, through a live television link—

(a) if the person is under 17 years of age, unless the court sees good reason to the contrary,

(b) in any other case, with the leave of the court.”

It is clear that all persons under the age of eighteen may give evidence in this manner, unless the court considers it appropriate, for

good reason, that they should not do so. In all other cases, including cases where the witness is over eighteen, evidence may be

permitted to be given in this manner with the leave of the court. No conditions are imposed in respect of that leave, and no

restriction is set down in respect of the exercise by the trial judge of his discretion.

In the present case, the witness had expressed concerns which were given openly and fully in court. Although it is true that Dr.

McDwyer indicated that the witness was both strong and direct of personality, it was also said that she had great difficulty talking

about feelings, or “things that had happened in the past”. Moreover, she had just barely reached her eighteenth birthday at the time

of trial, she was giving evidence in a murder trial against her own father, concerning events that had occurred when she was only 15

years of age, was, on the evidence of the social worker, a vulnerable person, and in respect of these elements, evidence was given

and tested by cross-examination. Having regard to these matters, it seems to the Court that it is not possible to criticise the learned

trial judge for permitting the witness to give evidence by live video link, he having had all of the evidence necessary to make that

decision, which was entirely within jurisdiction. Moreover, the applicant was not unnecessarily or unduly restricted, or limited in his

defence arising from the decision, since this witness was, in fact, cross-examined on behalf of the defence, over a lengthy period of

time, in accordance with the principles in State (Healy) v. Donoghue, supra.

There is no evidence adduced on behalf of the applicant upon which it could be found that there was a real or serious risk of an unfair

trial, by reason of the learned trial judge exercising his discretion to permit the witness in question to give her evidence by means of

live video link, and no basis upon which this ground for leave to appeal can be acceded to. It is therefore refused.

Ground 5

Ground 5 alleges objective bias, and is based on an allegation that the learned trial judge’s conduct during the course of the trial

demonstrated such bias. It is claimed that the learned trial judge’s comments in relation to the applicant were beyond a level and

scale appropriate for a trial judge, and rendered the trial process itself unbalanced. Counsel on behalf of the applicant invokes

principles established in several English and Irish cases, which cannot in any way be considered in doubt.

In the present case there are three specific matters objected to on behalf of the applicant. The first concerns comments of the

learned trial judge, made on two occasions during the course of a voir dire in the absence of the jury, and on a third occasion a

comment made in the presence of the jury.

It is pointed out, however, by counsel on behalf of the respondent, that this ground did not feature at all in the course of the trial,

when no objection to the conduct of the learned trial judge in relation to the complaint now advanced was raised. In the

circumstances, the respondent contends that the applicant is not entitled, on the basis of established case law, to raise this ground

for the first time in the course of this appeal, invoking in that regard the well established principles enunciated in the case of People

(DPP) v. Cronin (No. 2,) supra., a decision of the Supreme Court in which such an approach was considered in detail.

Conclusion

There is no basis whatsoever upon which this ground should be permitted to be aired in the course of this application for leave, since

the comments of the learned trial judge, both in the voir dire, and on the one occasion in the presence of the jury, clearly did not

concern or disturb very skilled counsel acting on behalf of the defence during the course of the trial. They were, none of them, the

subject of any comment, remark or application during the trial and The People (DPP) v. Cronin (No. 2) applies. This decision has been

subsequently applied in several cases, but it is important to point out that the decision, in fact, is not a new decision. Although

delivered and re-affirmed in 2006, the principles of law go back to the 1920’s. There has been no suggestion of any oversight in

relation to any of the comments, and no submission that overriding principles of justice require the allegations to be considered.

It is true, according to the established case law, that an accused is entitled to have his case fairly presented to a jury both by

counsel and by the judge. It scarcely requires detailed case law to accept this as a fundamental principle of law. If it had been

necessary to consider the matter, and the Court will not deal with it in detail, it is appropriate to point out that the standard to be

applied in a case such as this has been developed over a period of time, and is not the standard invoked on behalf of the applicant.

The applicant says that what must be established is “a perception of bias in the mind of an objective bystander”. That, however, is

the most basic statement of the applicable principle. The matter was well established by the Supreme Court in the case of Bula Ltd (&

Others) v. Tara Mines Ltd (& Others) [2000] 4 I.R. 102, a judgment of Denham, J., which has been followed in several cases

subsequently. It was also revisited by the Supreme Court in the case of Patrick Kelly v. The Visitors of the College of the Holy and

Undivided Trinity of Queen Elizabeth near Dublin [2007] IESC 6 in the judgment of Fennelly, J., delivered in that case, and in which he

reviewed the authorities in considerable detail. The principle of law which emerges from that decision is as follows:

“……it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances

would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the

issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any

party. It is an objective test - it invokes the apprehension of the reasonable person.”

In the course of this appeal no material has, in reality, been tendered that a bystander, with knowledge of the matters in question,

which is what is meant by “in the circumstances” would nevertheless consider or believe that the accused in this trial could not

receive a fair trial by virtue of the comments made to counsel, or on the last occasion in the presence of the jury.

The Court is satisfied that it should not embark on considering this ground, as it does not meet any of the principles established in

Cronin, supra., or any of the exceptions provided for.

Ground 6

This ground concerns the judge’s charge to the jury. It alleges that the learned trial judge failed adequately or properly to present the

defence case to the jury during the course of his charge, and also failed to present the defence case in a manner which was fair to

the applicant in all the circumstances.

This ground is based on an allegation that the learned trial judge (a) failed in his initial charge to highlight the significant discrepancies

in relation to the account given by Heidi Conroy in the course of her evidence; (b) erred in telling the jury, while charging them, that

her differing accounts of strangulation were given in the course of cross-examination, when instead this emerged on re-examination;

and (c) over-emphasised the case presented on the part of the prosecution. Part of this ground includes an allegation that the

learned trial judge, by reason of the matters of alleged bias set out at ground 5, unfairly diminished the case for the defence.

The respondent, on this ground, argues that there was no complaint made by counsel at the requisition stage, after the charge that

the applicant’s defence had not been properly put, or had been put to the jury in a manner which was in any way unfair to the

applicant. The ground is therefore without substance and again is precluded by the decision in People (DPP) v. Cronin (No. 2), supra.,

from being raised at this stage in the course of an appeal. The respondent adds, however, that while the question whether the

evidence of the witness in question complained of arose for the first time in cross-examination or in re-examination is immaterial, but

that, as a matter of fact, the learned trial judge was correct in saying that it arose during the course of cross-examination. The

applicant’s point is that it was not part of this witness’s evidence in chief. In any event, it is clear from the applicant’s own written

submissions that the issue was fully put to the jury by the learned trial judge. Even if the ground was an admissible ground, therefore,

the respondent contends that it is without validity or basis.

Conclusion

It is worthwhile starting with what was said by the learned trial judge in the course of his charge:

“You will recall that under cross-examination by Mr. Grehan, Heidi gave evidence of having observed her father strangle

Melissa. She told of his having his hands on her throat. That was something, ladies and gentlemen, that is not part of

the case made on paper, if I might describe it as that. It wasn’t contained in any statement that was made by Heidi to

the Garda Siochana, and it wasn’t evidence that she gave in her direct evidence to you, but was a matter that arose in

cross-examination. It is obviously a matter for you as to how you view that evidence …”.

It is clear from a review of the transcript that this issue arose during the course of her cross-examination and was treated in turn,

properly, by counsel for the prosecution in the course of re-examination.

It is not surprising, having regard to the content of the learned trial judge’s charge, that no objection was taken of the type which is

now sought to be raised on ground 6. There is no evidence whatsoever that the learned trial judge failed to put the defence case to

the jury in an adequate or fair manner, and the charge to the jury, which extended over a significant number of pages, was careful,

detailed, clear and comprehensive.

This ground for leave to appeal is refused.

Ground 9

Finally, the Court deals separately with ground 9, which also concerns the charge of the learned trial judge. It alleges that he erred in

law in failing to give a sufficient warning to the jury as to the dangers of convicting the applicant on the basis of the evidence of the

two principal witnesses, Samantha Conroy and Heidi Conroy. This is particularly so, it is submitted, given the infirmities and

inconsistencies in, and the tenuous nature of, the evidence given by these two witnesses, as outlined in greater detail in grounds 1

and 2 above, and was particularly important, having regard to the fact that the learned trial judge had refused to withdraw the case

from the jury, or to direct the acquittal of the applicant.

The difficulties which arose were highlighted to this court by counsel for the applicant in the following terms:

“But you are in a position where the jury are going to have two widely inconsistent accounts of Melissa Mahon’s death

from two witnesses, the only two witnesses who claim they were there when it happened. Now, in my submission, a jury

is going to have to be given some guidance as to how they can – as to how they are to approach that, and the court

has basically answered my question by saying that a jury can simply accept, reject, either of the accounts. And, in my

submission, that is simply not good enough. That is simply not a good enough state of play to have at the close of the

prosecution case, that you have two, I say, mutually inconsistent accounts where a jury have been effectively told

these are both witnesses of credit, they are both witnesses put forward by the prosecution whom they can rely on;

where, in effect, there is no assistance that can be given as to whose version of what happened they can choose.”

Quite apart from that submission, counsel for the applicant, at the requisition stage after the charge to the jury, again expressed a

view in relation to this in the following terms:

“In my respectful submission I would submit that the jury should be told that in this particular case, given the differing

accounts that they have been given, that they would have to approach the matter with a degree of caution and I do

very seriously make the submission, as I made to the jury in closing, that they can’t simply pick and mix, that they have

to be satisfied as to credibility of account -”

and further:

“But in my submission, they can’t simply apply it as it might – that direction as given in the ordinary case, because they

have to be first of all satisfied of the credibility of that account before they can place that reliance on it and I think it is

a particular problem in this case because of the two different eye witness accounts”.

It is accepted by the applicant that the learned trial judge did, after requisitions, recharge the jury in the terms outlined in the

transcript s referred to below, but it is claimed that such warning was insufficient, given the absolute conflict that existed within the

prosecution case.

On behalf of the respondent it is submitted that this ground is also without merit. The first of the above extracts of counsel is an

extract from his application made at the direction stage at the end of the prosecution case, and is irrelevant to the charge. The

second extract referred to in the applicant’s submission, reflects the actual requisition to the trial judge who was being asked to tell

the jury to approach the possibility of selecting parts of Samantha’s evidence and parts of Heidi’s evidence with caution. The learned

trial judge acceded to the application to recharge the jury and, in fact, recharged them as requested. There was no further

requisition raised on that recharge, and in the circumstances, it is alleged, it is not possible to see how any ground of appeal can lie in

respect of the same.

Conclusions

The contentions relating to the obvious discrepancies between the evidence of Samantha Conroy, on the one hand, and of Heidi

Conroy, on the other hand, or of any internal inconsistencies in the evidence of each of these, are dealt with in relation to grounds 1

and 2 above. In relation to this ground, arising from those discrepancies, vis a vis, the charge, it can be disposed of briefly. Counsel

for the applicant was concerned that the jury should be given an appropriate warning, or cautioned as to the discrepancies existing

between the evidence in question. The learned trial judge acceded to that application, notwithstanding that he had given a very

detailed charge to the jury. In the course of his recharge he stated that the jury would have to be careful, in that when selecting

parts of the evidence of one of the witnesses and/or parts of the evidence of the other witness “clearly a great deal of caution

should be applied in selecting matters in that fashion, having regard to the conflicts that exist”.

If the terms of the recharge were not considered to be adequate by the very skilled counsel representing the applicant in the trial, it

is undoubtedly the case that a further requisition would have been sought, and the jury recharged. It is not unusual for counsel for

one or other, or both parties, to request further clarification of the charge to the jury.

Clearly, in the present case, the recharge was considered acceptable.

This ground cannot succeed.

Grounds 7, 8 and 10 are clearly subsumed in the corresponding above grounds, and do not require to be considered further by the

Court.

In light of the foregoing, the application for leave to appeal against conviction is refused.