Court of Criminal Appeal refused leave to appeal regarding admission of prejudicial interview responses.

COURT OF CRIMINAL APPEAL

Macken, J. [Record No. 271/08]

Budd, J.

O’Keeffe, J.

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

-AND-

STEPHEN CARNEY

APPLICANT

Judgment of the Court delivered on the 4th day of July, 2011 by Macken, J.

This is an application for leave to appeal against the applicant’s conviction on the 8th November, 2008 for the murder of his late

partner.

Background

The applicant lived with his partner, who was 27 years of age, in an apartment in the City of Dublin. The transcript discloses that on

Friday, the 5th October, 2007 the applicant had gone to a public house premises called The Four Roads, and another called The

Kestrel. Apparently he had not been drinking for about three or four months, due to his efforts to control his alcohol dependency.

However, he commenced to drink for quite a considerable part of the day, with small intermissions to attend a nearby bookmaker’s

premises where he made a substantial profit. Later that evening, according to the evidence, at about 8.45 p.m., he came back to his

partner’s apartment, where she already was after having finished her day’s work. She was smoking cannabis. The apartment smelt of

cannabis and all the windows and doors were closed. The applicant told her to open a door to let the smell out, but she did not, or

would not. According to his later interviews with gardai, he and his partner had a row about this. The row was loud and noisy, and he

had his face close to hers. She was sitting in an armchair and he was leaning over her and when she refused to open the window, he

shouted at her, and she hit him “a clatter”. He then put his hands around her neck and squeezed, and in the event, she fell off the

armchair onto the floor and he fell on top of her. The transcript discloses that he continued to squeeze, and then he found her face

had turned blue and he stopped. He realised that she was dead. He had some scratches to his face and arms, and the evidence

suggests these were likely to have been caused by his partner resisting for a time. He then moved her body from the living-room to

the bedroom and placed it on the floor beside her bed and covered her with a blanket. Then the applicant, having showered and

changed, after some time left the apartment, and spent the rest of the evening drinking. Next day, he continued drinking and went to

a funeral and a party. Apparently, he also took some drugs over the period since she had died. Early on Sunday morning, the 7th

October, 2007, having ostensibly attempted to kill himself by taking a large number of tablets, and by trying to cut his wrists, he then

telephoned the gardai who arrived at the apartment. Their evidence indicated that the applicant was, at the time, very remorseful.

The Grounds of Appeal

The applicant, upon conviction, was sentenced to the mandatory term of life imprisonment and has sought leave to appeal his

conviction to this Court by Notice of Application for Leave to Appeal dated the 20th November, 2008. He raised three distinct grounds

in that Notice, and helpful written submissions were filed on behalf of both parties. These have been supplemented by oral argument.

On behalf of the applicant, Michael O’Higgins, S.C., at the commencement of the oral hearing, indicated that he was not relying upon

ground 1 of the Notice of Appeal, but confined his application to grounds 2 and 3, which he proposed to address on the basis of both

submissions being premised on similar legal principles. The two grounds are in the following terms:

2. The learned trial judge erred in law, and in fact, in allowing photographs of the deceased to be presented to the jury,

in circumstances where the prejudicial effect of the photographs far outweighed their probative value.

3. The learned trial judge erred in law, and in fact, in allowing certain questions and answers in the interview notes of the

applicant with members of An Garda Siochana to go to the jury, in circumstances where those questions and answers

related to the state of the mind of the deceased. Those questions and answers contained no probative material and could

only have caused prejudice to the applicant.

The Photograph Ground: The Context of their Admission

Although Mr. O’Higgins, in essence, makes common legal arguments on both grounds which centre around the prejudicial effect of

their admission, it is necessary to say something about the background to the disputed admission of each category of evidential

material.

The first extant ground concerns the admission into evidence of a series of three photographs of the deceased woman, to which

objection was taken at the trial. The three photographs were taken by a garda, on Sunday morning, the 7th October, 2007, after the

applicant had phoned the gardai and they had arrived at the apartment. These three photographs were not part of the formal post-

mortem examination, when photographs might also have been taken. The photographs show the following: (a) as to the first of them,

it is taken from the bottom of the bed beside which the body had been placed, and is a full length photograph of the deceased

showing her head and face, although not in close up, and her body is covered by a blanket. She had been placed on the floor by the

applicant, lying full length alongside her bed with her head at the top and her feet at the bottom of the bed nearest to the

photographer; (b) as to the second and third photographs, they both show the deceased’s face and head in close up, and in

particular they depict the state of her face, including the marks on her neck where blood had congealed, as well as marks on the rest

of her face, and also the colour of her face. These features will be considered in greater detail below.

On the application of the prosecution at the trial, Diarmuid.McGuinness, S.C. sought to have these three photographs admitted on

three grounds, namely: (i) that they were, in themselves, being a pictorial record, admissible, and relevant evidence of the injuries to

the deceased; (ii) that they were relevant to support or clarify the evidence about to be given by the State Pathologist, Professor

Cassidy, illustrating her findings and providing the bases and grounds for them, especially in relation to the colour of the face; and (iii)

that they were relevant to rebut the assertion by the accused that he, the applicant, had neither intended to kill the deceased, nor

even to hurt or cause serious injury to her. While accepting that such photographs are not often put into evidence, because they are

seemingly prejudicial, distressing and inflammatory, nevertheless Mr. McGuinness argued at trial that they were sufficiently necessary,

material and probative to overcome any objection on grounds of being unnecessarily prejudicial.

The admission of the photographs was objected to by Mr. O’Higgins for the accused on the basis that they were not admissible,

because (i) they were highly prejudicial, and that such prejudice clearly outweighed any probative value which they might have, and

(ii) they were not necessary, since it was conceded by the applicant that the deceased’s face had turned blue. He submitted that no

issue arose on the point that her face had turned blue, which might require the admission of photographs of this type, which are not

normally admitted at trial. Here, however, the gruesome photographs were not requisite, as this occurrence of the blueness of her

face was admitted by the accused

The learned trial judge made his ruling, following legal argument, in these terms:

“The photographs in issue here are not particularly shocking as these photographs go. They are illustrative of matters to

be dealt with in her evidence by Professor Cassidy. It is not a sufficient answer for Mr. O’Higgins to say that matters are

not in issue. The prosecution are entitled to put flesh on the bones of their case. I allow the photographs.”

Arguments of the Parties on this Ground

First, and on a preliminary contextual basis, Mr. O’Higgins for the applicant says it is important to view the arguments to be made by

him against the following background. In the trial, the defence of the applicant was that he did not intend to kill his girlfriend, nor

even to hurt her or cause her serious injury, and therefore the provisions of law relating to the requirements for establishing intent

were not met. Further, the issue of provocation had been raised, and the learned trial judge had accepted that the test for permitting

this to be raised as a ground of defence had been met. The prosecution, on the other hand, were contending that the required

intention to kill or cause serious injury was present. The case was therefore fairly balanced between the parties, and the jury might

properly have decided in favour of one or other contention. In such circumstances there is a particular onus on a party, here the

prosecution, seeking to have evidence admitted in circumstances outside the norm. That onus is heavier than in a case where the run

of the trial is not so evenly balanced.

In the written submissions it is accepted on behalf of the applicant that a judge in a criminal trial has a discretion to exclude legally

admissible evidence tendered by the prosecution, such as photographs of the type in consideration here. In People (AG) v. O’Neill

[1964] Ir.Jur.Rep 1, Kenny J., confirmed the long established general principle that the trial judge has such a discretion to exclude

material which is unfairly gruesome or inflammatory, “when its probative value is small but its prejudicial effect considerable”. It is

acknowledged by the applicant that this reasoning was re-affirmed in DPP v. Meleady (No. 3) [2001] 4 I.R. 16.

In oral argument, Mr. O’Higgins contends that, as a matter of principle, there is a legal norm by which such photographs are, in

practice, not admitted. He himself knows of no case in which they have been admitted. He submits that such practice, established

over the years, supports his contention as to the existence of such a legal norm. In any event, he argues first, that such

photographs should not be admitted, because they are not simply inflammatory, and therefore likely to be considered by the jury in a

manner adverse to the applicant’s interests, but also because photographs of this type are properly excluded because they are, of

their nature, prurient, repulsive and offensive. Because they are of such repellent nature, they are also wholly prejudicial. Secondly,

he argues that in the present case they were also unnecessary, as the evidence then about to be given by Professor Cassidy was

wholly adequate to explain to the jury the state and nature of the injuries suffered by the deceased, the applicant having accepted

that the victim’s face turned blue. Mr. O’Higgins also points out the requirement for the trial judge to assess the evidence in advance

of exercising a discretion, which was considered by Scarman, L., in R v. Sang [1980] A.C. 402, in which he stated:

“The development of the discretion has, of necessity, been largely associated with jury trial. In the result, legal discussion

of it is apt to proceed in terms of the distinctive functions of judge and jury … magistrates are bound, as is the judge in a

jury trial, to ensure that the accused has a fair trial according to law; and have the same discretion as he has in the

interests of a fair trial to exclude legally admissible evidence. No doubt, it will be rarely exercised. And certainly

magistrates would be wise not to rule until the evidence is tendered and objection is taken. … When asked to rule, they

should bear in mind that it is their duty to have regard to legally admissible evidence, unless in their judgment the use of

the evidence would make the trial unfair. The test of unfairness is not that of a game: it is whether in the light of the

considerations to which I have referred the evidence, if admitted, would undermine the justice of the trial. …”

It is contended that having regard to the relevant jurisprudence, material was wrongly put to the jury that had no probative value

and was highly prejudicial, being the photographs of the deceased when she would have been dead for a period of two days.

In response, Mr. McGuinness, counsel for the respondent, argues as follows: Insofar as the admission of the photographs is

concerned, the issue in the case, he accepted, was whether or not the applicant intended to murder or cause serious injury to the

deceased, as well as the issue of provocation. The photographic evidence was directed at several matters, including the accused’s

state of mind, not, as the applicant claimed, what was in the deceased’s state of mind, but what was in the mind of the accused.

One very substantial plank in the defence case was that the applicant not only did not intend to kill the deceased, or did not intend

to cause her serious harm, but that he did not even intend to hurt her. Thus, how she actually met her death, both in terms of the

injuries sustained and the medical evidence adduced, was highly relevant. The photographs were of significant probative value in

establishing whether or not the prosecution case, which was that the applicant intended to kill or cause serious injury to her, was

supported by appropriate evidence. The photographs were therefore also sought to be introduced to rebut the applicant’s defence

that he did not intend to do anything other than to frighten the deceased, and certainly did not intend either to kill her or to cause

serious injury.

It is further submitted on behalf of the respondent that the photographs were evidence in themselves, and while it was accepted that

such photographs might not ordinarily be admitted, or even be sought to be admitted, that is not, in fact, a valid ground for objecting

to their admissibility in any particular case. Although Mr. O’Higgins, on behalf of the applicant, had asserted undue prejudice, he had

failed to make any serious case to support such alleged prejudice, the photographs being, on any interpretation, otherwise admissible

and probative. They were finally relevant and admissible for the purposes of supporting the medical evidence as to the manual

strangulation in question, to support and make clear the petechial haemorrhages, that is, purple spotting on the skin, and especially

what was called the cyanosis during strangulation, and that arising as a result of the strangulation. It is possible to see in the

photographs the marked distinction between the pallor on the deceased’s neck and the bluish colour to her face, caused by

congestion arising from the restriction on blood flow which occurs upon appropriate squeezing or strangulation of the neck, in contrast

to that arising post-mortem. Mr. McGuinness contends that the prosecution was entitled to adduce evidence as to how she

appeared, as to the coloration during strangulation while the heart was still beating, and entitled to do so without unnecessary

restriction, including for the purposes of rebutting the defence of lack of intention.

Counsel for the prosecution cogently argues that the learned trial judge, on assessing the arguments adduced on behalf of both

parties, was entitled to consider not only that the material was admissible, as it clearly was in law, and not only that it was

probative, as it clearly also was in law, but that its prejudicial weight, which was accepted as existing, did not outweigh its probative

value.

Conclusion

The case law in relation to the question of the exclusion of evidence, otherwise admissible, is clear, and it is not necessary to repeat

the extracts invoked by the applicant, and indeed by the respondent, in these conclusions. It is sufficient to say that the principle

set out in DPP v. Meleady (No. 3), supra., correctly represent the law. Geoghegan, J. stated the principle concisely:

“It is well established that, although there is no authority to permit a criminal court to admit, as a matter of discretion,

evidence which is inadmissible under an exclusionary rule of law, the converse is not the case. A judge, as part of his

inherent power, has an overriding duty in every case to ensure that the accused receives a fair trial and always has a

discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the

jury outweighs its true probative value.”

A somewhat similar pronouncement on the issue which is cited on behalf of the applicant, is found in Keane on the Modern Law of

Evidence, 6th Ed. p.48, in the following terms:

“The judge must balance on the one hand the prejudicial effect of the evidence against the accused on the minds of the

jury and on the other hand its weight and value having regard to the purpose for which it is adduced. Where the former is

out of all proportion to the latter the judge should exclude it. In one sense, of course, all relevant evidence adduced by

the prosecution is prejudicial to the accused and the greater its probative value, the greater its prejudicial effect. In

some cases, however, there will be a serious risk that the jury will attach undue weight to an item of evidence which is,

in reality, of dubious reliability or of no more than trifling or minimal probative value, and in these circumstances the judge

should exclude”.

A discretion exists in the trial judge to exclude material, such as the photographs in the present case, although otherwise admissible,

if the evidence is either of little probative value but is prejudicial, or if it is of greater probative value but nevertheless its prejudice

outweighs its true probative value. Where its prejudicial effect outweighs its true probative value, that discretion should be exercised

in a manner which best guarantees the fairness of the trial for the accused.

In the present case the deceased died late in the evening on Friday, 5th October, 2007. The best evidence tendered in relation to

the timing of the photographs is that they were taken some time after the applicant telephoned An Garda Siochana early on the 7th

October, 2007, and when the gardai arrived at the apartment shortly thereafter. It is fair, therefore, to say that the signs in the

photographs were of a face and body about 1½ days after her death. The first of the photographs, namely, that showing the

positioning of the body, has some probative value and no significant, if any, prejudicial value, because of the nature of the

photograph and the fact that it is not a photograph with any clear evidence relating to the coloration of the face, or marks on the

face. It appears to have been proposed for admission in evidence to show where the applicant had positioned the body. The other

two photographs both show bruising and marking on the neck and the colour of the face, and, as with many other pieces of evidence

in a trial, are, or may be, reasonably considered to be prejudicial to the applicant.

It is undoubtedly the case that the respondent placed considerable emphasis on the fact that the deceased’s face had turned blue,

and stressed the probative value of the photographs, for the purpose of rebutting the applicant’s assertion that he did not intend to

kill or even to harm the deceased. In essence, the case for the respondent, as prosecutor, was that although the applicant had

noticed that the deceased’s face had turned blue, he nevertheless continued to squeeze her neck, and therefore must have intended,

contrary to the case being made by the applicant, to kill or cause the deceased serious injury. The photographs were, on that basis,

probative – indeed very strongly so.

It is also the case that the prosecution was intending to lead, and did lead, evidence of Professor Cassidy, the State Pathologist,

which included considerable information about the reasons why the face turns blue, including that this is caused by congestion, and

information about the period of time which it takes for the face to turn blue when the throat is squeezed, and other technical matters

of that nature, such as petiol markings, going towards establishing the bases for Professor Cassidy’s conclusions as to the cause of

death of the deceased, that is, squeezing, and why the face would be noticeably blue in consequence. It would also assist in

explaining the distinction between the colour of the face arising from what she considered had occurred through squeezing, as

opposed to the face becoming naturally coloured by reason of post-mortem lividity over the period of a day and a half, an important

factor in understanding that distinction and the overall forensic evidence. The photographs were notably probative on that basis also.

In the course of trial it was argued by the applicant, and is also argued before this Court, that it was not necessary to introduce the

photographs in question, for two reasons. The first was that the applicant admitted that the deceased had, in fact, turned blue

before dying, and secondly, the evidence to be given by Professor Cassidy orally would be sufficient to deal with the necessary

technical explanations concerning the colour of the face, without having photographs of the type in issue in the present case

admitted, since they were so prejudicial, and even purportedly prurient.

As to the applicant’s contention that there is a legal norm that such photographs are not admitted, the Court is not satisfied that this

is so, and no case law or academic or other authority was cited in support of the existence of such a norm. It may well be a practice

that, in general, photographs which are merely prurient or distressing, or even inflammatory, are not often admitted in the course of

trials. It may even be the case that they are not sought to be put in evidence. But the legal norm remains the same, namely, that

such evidence, if relevant, is admissible, and may be admitted provided that its prejudicial value does not outweigh its probative

value, such as to lead to a likelihood of an unfair trial, or otherwise put at risk its fairness.

Because there is a balancing exercise to be carried out, a trial judge has a discretion to admit such evidence. That discretion must be

exercised judicially, having heard appropriate argument on the issue, and having considered the nature of the evidence, its probative

value and prejudicial effect. The issue therefore is whether the learned trial judge was correct in the exercise of his discretion in

admitting the photographs on the basis of the arguments made, or was wrong in law in so doing.

In the present case the learned trial judge exercised his discretion in the manner set out above. He had before him detailed specific

grounds and argument upon which he was being asked to admit the photographs, and equally detailed arguments of counsel against.

He was entitled to find that the photographs would “flesh out the case of the prosecution”, having regard to the arguments put

forward by counsel on behalf of the respondent, and he was entitled to find that the photographs were not “particularly shocking”.

The Court is satisfied that the learned trial judge exercised the discretion vested in him appropriately, and judicially, within jurisdiction

and for stated valid reasons, and that the photographs were lawfully admitted in the course of the trial. This ground for leave to

appeal cannot, in the circumstances, succeed.

The Admission of Statements of the Accused

In relation to the second ground, which challenges the learned trial judge’s decision to admit into evidence certain answers given by

the applicant to questions posed to him by gardai in the course of the several interviews which took place, Mr. O’Higgins argues as

follows. The questions and answers at issue were the following, which came during the course of one of the several interviews

between the applicant and the gardai:

“Q. She must have been terrified of you Stephen?

A. I don’t know whether she was or not.

Q. She must have known that you were killing her?

A. She would have, yes.

Q. What do you think she was thinking?

A. I honestly don’t know.”

It is said by counsel on behalf of the applicant that the learned trial judge ruled this portion of the interview notes admissible, on the

basis that they were “relevant and probative”, but that he did not indicate in what respect they were so. Secondly, it is submitted

that this portion of the interview notes contained no probative material of any nature whatsoever, and that the evidence was both

inflammatory and provocative, and therefore highly prejudicial. Counsel on behalf of the applicant relies on the above cited case law in

relation to the admissibility of the photographs, as evidencing also the legal principles applicable to the admission of the answers from

the interview notes. Counsel objects in particular to the second and third questions on the basis that they are questions about what

the deceased thought, and not about the applicant’s thinking, and are wholly inadmissible, quite apart from the question of prejudice.

Further, counsel argues that the questions were directed towards establishing the victim’s thoughts and not the state of mind of the

applicant, and could not, therefore, be probative of his intentions, nor would such questions ever be permitted.

Counsel for the respondent contends that the answers were both admissible and properly admitted, because the responses showed

(a) a perception by him as to the consequence of his acts; (b) a recognition by him that while strangling the victim he himself

perceived she knew he was killing her; and (c) were consistent with the deceased knowing she was being killed when, in fact, she

was. The response to the last question is said not to be capable of being prejudicial, since it merely stated he “did not know what she

was thinking”.

Conclusion

The issue which arises for consideration under the admission of answers to questions is similar to that which has been dealt with

above in relation to the photographs. The essential arguments concern the admissibility of such responses, the legal principles

applicable to the admission of the same, and whether or not, in exercising the discretion undoubtedly vesting in the trial judge, the

learned trial judge had exercised the discretion correctly. For the purposes of these conclusions it is not necessary to cite again the

case law invoked on behalf of the applicant in relation to the photographs, because the principles found in that jurisprudence are fully

accepted by counsel on behalf of the respondent, although counsel for the respondent points out that several of the cases now

invoked were not opened to the learned trial judge. This Court notes the same, but proceeds on the basis that the principles

contended for by the applicant are the same principles accepted by the respondent as being those applicable.

It is important to note that in the context of this particular ground of appeal, there were several interviews with the applicant

stretching over a few days, and as sometimes occurs, more and more information became available as the interviews progressed. The

interviews, however, span a few dozen typed pages, of which the above three questions form quite a small part, which is not to say

that, despite the paucity, they are not of considerable significance.

In the present case there was more than one application made in respect of answers given by the applicant to questions during

interview. It is clear from the transcript that an application was made to exclude from the jury other answers given by the accused

while in custody. The trial judge, having heard counsel, ruled in favour of the applicant, that exclusion of evidence being on the basis

that its prejudicial effect outweighed its probative value. Thereafter, counsel on behalf of the applicant, as he was fully entitled to

do, applied to exclude the questions and answers which are the subject of this application. The learned trial judge was, in that

context, clearly on alert to all arguments being made.

Detailed submissions were made on behalf of the applicant, and also on behalf of the respondent. It is in the context of those detailed

arguments that the Court considers the response of the learned trial judge. The learned trial judge had clearly considered the

responses, and had a discretion to exclude them, although otherwise admissible as being both relevant and probative. Although

counsel for the applicant complains that the learned trial judge did not adequately indicate in what respect the responses were both

relevant and probative, this Court does not consider such a criticism to be undermining of the decision given in exercise of the

discretion, having regard to the extensive arguments made and the principles involved the rather short decision being made in direct

response to the submissions, from which the basis for the decision is clear.

On the merits, it is undoubtedly the case that such answers are prejudicial. It is equally clear from the case law that the courts have

recognised and acknowledged that in a prosecution, much of the evidence will be prejudicial. Indeed, it might even be said, without

serious contradiction, that a great deal of material, given the nature of crimes and trials, will be prejudicial to an accused. That is

why, in essence, principles have been established for the specific purpose of protecting an accused from an unfair trial when the

evidence sought to be adduced, even if prejudicial, must in an appropriate case, be measured or balanced against its probative value

so as to ensure that prejudicial material, unfairly outweighing its probative value, cannot be admitted.

The Court is satisfied that in the present case the responses were probative. The questions were not, as is contended on behalf of

the applicant, directed towards eliciting the victim’s state of mind, but rather what the applicant himself thought was the victim’s

state of mind, that is, his own state of mind. Although the responses were also prejudicial, they were not so prejudicial as to

outweigh their probative value. The exercise by the learned trial judge, therefore, in concluding that the answers were both relevant

and probative, when assessed and measured against the principles outlined to him and the arguments made, are clearly indicative of

the judicial and careful exercise by the trial judge of the discretion vested in him.

In the circumstances, the application for leave, based on the admission of responses to questions posed during interviews of the

applicant, cannot succeed.

For the foregoing reasons the application for leave to appeal on the basis of the two extant grounds is refused.