Court of Appeal allows appeal against conviction due to unfair trial and medical evidence misrepresentation.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

130/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Anthony Kelleher

Appellant

JUDGMENT of the Court delivered on the 10th day of October 2016 by Mr. Justice Sheehan

1. Following a six day trial at Cork Circuit Criminal Court, the appellant Anthony Kelleher was convicted of assault causing harm to his

wife Siobhan Kelleher at their family home in Macroom, Co. Cork on the 12th June, 2014 and was subsequently sentenced to eight

years imprisonment. He now appeals against conviction and sentence. This judgment is concerned solely with the appeal against

conviction.

2. The critical prosecution evidence comprised of two statements made by the principal witness, Mrs. Siobhan Kelleher, when she was

a patient in hospital following the injuries she suffered. These statements were admitted in evidence pursuant to s. 16 of the Criminal

Justice Act 2006, following Mrs. Kelleher’s refusal to give evidence during the trial. In the first of these statements the injured party

stated that the appellant had pulled her out of bed by her hair, thrown her across the corridor and down the stairs. In a subsequent

statement taken from her by another member of An Garda Síochána four days later she elaborated in considerably greater detail as to

what had happened on the day in question. In the second statement, she described being pulled out of bed by her pony tail which

resulted in clumps of her hair coming out. She described being thrown down the stairs and kicked a number of times by her husband

as he did so. She did not remember anything else about the assault and the next thing she remembered was waking up in hospital.

3. The prosecution also called evidence that the appellant had called an ambulance for his wife on the day in question and told the

paramedics who brought her to hospital that his wife had fallen down the stairs. A statement made by the appellant to the gardaí was

also admitted in evidence. In the course of that statement, the appellant alleged his wife had fallen down the stairs. The prosecution

also led evidence concerning the finding of clumps of hair in the family bedroom of the injured party to the effect that this hair had

been pulled forcibly from her head. Medical evidence of the injuries received by Mrs. Kelleher was given by a consultant surgeon at

Cork University Hospital.

4. The defence called two witnesses at trial. Prof. Cusack was the principal defence witness and the main thrust of his evidence was

that the injuries received by Mrs. Kelleher were consistent with falling down the stairs. Anne Horgan, a solicitor who had been present

at family law proceedings in Cork District Court was the second defence witness. She stated that she was present when Mrs. Kelleher

gave evidence on oath in the District Court. She said that Mrs. Kelleher had said that all she remembered was collapsing at the

clothes line and nothing else. She said that Mrs. Kelleher said she certainly would have had a few drinks that day. Ms. Horgan also

gave evidence that the complainant said that when she was being interviewed in the first couple of days following her admission to

hospital she was not stable enough to talk and she did not understand what was happening. Ms. Horgan further stated that the

injured party had said she had no explanation of her meeting with the social worker. She said she was told she fell down the stairs,

but she could only recall being at the clothes line. She said that Mrs. Kelleher spoke about not being coherent and being delirious

when she was in hospital.

5. While the appellant has filed nine grounds of appeal, the first seven of these relate to issues arising out of the refusal of the

principal prosecution witness Mrs. Kelleher to give evidence and the subsequent admission into evidence of two statements taken

from her by the gardaí while she was in hospital recovering from her injuries. One of the two remaining grounds of appeal concerns the

trial judge’s charge to the jury and the other ground relates to the trial judge’s ruling on the admissibility of forensic evidence to the

effect that a clump of hair found in the injured party’s bedroom had been forcibly pulled from her head. In light of the written

submissions and in the course of oral submissions in this case it became clear that a basic question arose for our consideration

namely: did the appellant in this case receive a fair trial.

6. Three issues critical to a consideration of this question are (1) the decision to admit the complainant’s statements notwithstanding

the provisions of s. 16(4)(a) of the Act of 2006; (2) the manner in which the trial judge dealt with the principal prosecution witness’s

refusal to answer questions and (3) the way in which the trial judge dealt with the defence medical evidence in the course of his

charge to the jury.

The decision to admit the complainant’s statements pursuant to s. 16

7. Subsection (4) of s. 16 of the Act of 2006 states:

(4) The statement shall not be admitted in evidence under this section if the court is of opinion—

(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused

or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so

admitted

8. The trial judge’s attention was drawn to the evidence that would be given, and was in fact given, by Anne Horgan, Solicitor, to the

effect that on a previous occasion, before another court and, critically, while under oath, the complainant had given an account of

having been under the influence of drink on the occasion that she was allegedly assaulted, and that she had stated that she had no

recollection other than of being at a clothes line and collapsing. It was submitted that in circumstances where this sworn account

was radically different from what she had told the Gardaí, it raised a serious issue as to the reliability of what she had told them, and

that it would be unfair having regard to all the circumstances, and contrary to the interests of justice, to admit the statements to

the Gardaí pursuant to s.16 of the Act of 2016, particularly in circumstances where no explanation for her refusal to give evidence, or

indeed to submit to cross-examination, was being offered.

We are satisfied that there was insufficient engagement by the trial judge with this very serious and far reaching submission. There

were, at a minimum, a number of serious enquiries that required to be made arising from the sworn and very different testimony that

she had given on oath before another court on another occasion, and obviously there were serious questions to be potentially asked

of the complainant in cross-examination, were she to submit to cross-examination. The decision to admit the complainant’s

statements pursuant to s.16 without there having been such engagement was inappropriate and unsafe, and this, in itself, rendered

the trial unfair.

The judge’s refusal to direct the complainant to answer questions

9. A key aspect of an accused’s person’s right to a fair trial is the right to be able to effectively cross examine witnesses called to

give evidence against him. This is not an absolute right and where a witness refuses to co-operate, this does not necessarily lead to

the trial collapsing and may lead, as it did in this case, to earlier statements made by the witness being admitted in evidence pursuant

to s. 16 of the Criminal Justice Act 2006.

10. While this important piece of legislation was availed of by the prosecution, its existence does not mean that a trial judge is

relieved of his or her obligation to ensure that the accused person receives a fair trial. On this point Prof. O’Malley in the Criminal

Process (Dublin, 2009), in chapter 4, “Elements of a fair trial”, notes what the Canadian Supreme Court has said about a fair trial. The

point made has relevance to the present case. Prof. O’Malley notes at para. 404, p. 63:-

“As the Canadian Supreme Court has said with reference to its own charter of rights and freedoms:

‘A fair trial however should not be confused with a perfect trial or the most advantageous trial possible from the

accused’s perspective . . . What constitutes a fair trial takes account not only of the perspective of the accused,

but the practical limits of the system of justice and the lawful interests of others involved in the process . . . what

the law demands is not perfect justice, but fundamentally fair justice.’”

11. Accepting for the moment the limitations outlined above by the Canadian Supreme Court, it remains the case in this jurisdiction

that a fundamental element of a fair trial is the right of an accused person to cross examine witnesses even though as we have

already pointed out, this right is not an absolute one. Where an accused person is being impeded in the exercise of that right, he is

entitled to assistance from the court. In the course of his submissions, the appellant contends that his conviction is unsafe and

unsatisfactory in that the learned trial judge erred in law in failing to direct the witness Siobhan Kelleher to answer the questions put

to her in cross examination, notwithstanding being requested to do so by senior counsel on behalf of the appellant at the trial.

12. At para. 4.08 under the heading “Judicial obligation to ensure a fair trial”, Prof O’Malley states:-

“While all participants in criminal proceedings including prosecution authorities, prosecution lawyers and defence lawyers

must discharge their functions in such a way as to avoid the risk of an unfair trial, the trial judge has a particular

responsibility in this regard. In the course of any criminal trial, the judge may be called upon to decide on the admissibility

of evidence or to issue orders and directions as the occasion may demand in relation to the conduct of the trial.”

13. In this case, the principal prosecution witness took the oath and proceeded to say in answer to questions put to her by the

prosecution counsel and by defence counsel in cross examination:-

“I do not wish to give evidence.”

14. At no stage did the trial judge intervene and explain to the witness that she was obliged to answer the questions she was being

asked. When senior counsel for the appellant asked the trial judge to intervene and give directions to the witness, the trial judge

declined and gave no reason for his refusal.

15. Counsel for the Director appears to argue that there was no obligation on the trial judge to intervene, stating at para. 6.19 of her

written submissions the following:-

“Ground (b) of the appellant’s grounds of appeal is similarly rejected on the basis that an effective cross examination in

which a witness answers questions put to her at cross examination is not mandated by s. 16 or the case law dealing with

it. This being the case and given that the very purpose of the section is to ameliorate the difficulties associated with

uncooperative witnesses it is submitted that there was no basis for the learned trial judge to resort to the draconian

measure of directing the witness to answer the questions put to her to the extent of holding her in contempt of court.

Section 16 provides an alternative remedy for a trial judge when faced with an uncooperative witness where before the

sole measure available to him was to hold the witness in contempt of court. It is submitted that neither the wording of

the Act nor any of the constitutional arguments advanced by the appellant would require a trial judge to exercise his right

to hold a witness in contempt of court while at the same time applying s. 16 along with the various safeguards it

contains.”

16. We are unable to accept this submission insofar as it seems to place no obligation on a trial judge to intervene when a witness

refuses to answer questions.

17. Section 16 of the Criminal Justice Act 2006, is an exceptional provision which allows a jury to receive previous statements of a

witness who refuses to testify. Although the witness is physically present and in that sense available for cross examination, the result

in this case was that no cross examination could be said to have taken place.

18. In these circumstances the trial judge had a clear duty to intervene and give appropriate directions to the witness including, if

necessary a warning to her as to the consequences of a continuing refusal to answer. The trial judge made no such intervention.

When counsel for the appellant asked the trial judge to intervene and give directions to the witness, the trial judge declined to do so

and gave no reasons for his refusal.

19. The witness had refused to answer questions in the course of a voir dire and furthermore had refused to answer questions in the

presence of the jury save insofar as she replied to questions “I do not wish to give evidence”. In our view, the trial judge’s failure to

intervene further seriously undermined the appellant’s right to a fair trial.

The trial judge’s charge

20. The defence placed significant reliance on the evidence of Prof. Stephen Cusack, a consultant in emergency medicine attached to

Cork University Hospital, who was called to establish that the injuries suffered by Mrs. Kelleher were consistent with her having fallen

down the stairs.

21. When summarising the medical evidence in his charge to the jury, the trial judge included many questions and propositions put by

prosecution counsel in cross examination without including the answers given by Prof. Cusack. Defence counsel submitted that the

result of this was effectively to discredit Prof. Cusack as a defence witness.

22. In the course of exchanges with the defence and prosecution counsel when requisitions were being raised, the trial judge appears

to have recognised that his charge in respect of Prof. Cusack’s evidence may have been deficient as he asked both counsel if either

of them had a note of the answers given. Neither counsel was able to assist. Instead of suspending the jury deliberations for a short

period and checking the relevant evidence on the digital audio recording system, the trial judge responded to this requisition in a

perfunctory and unsatisfactory manner which in our view failed to adequately undo the unbalanced way in which he had presented

the evidence of Prof. Cusack when contrasted with his presentation of the prosecution evidence of Dr. Kelly.

23. We have considered the submissions of both parties on this matter and note that counsel for the prosecution while disagreeing

with the interpretation put on the charge by the defence, nevertheless agrees that it was substantially correct to say that the trial

judge included suggestions made by her in cross examination to Prof. Cusack without giving the answers that Prof. Cusack had given.

24. It is undoubtedly difficult for a trial judge who does not have the benefit of an overnight transcript to record evidence accurately.

This Court also appreciates the trial judge’s anxiety to ensure that the trial moved to a speedy conclusion. At this point an expected

three day trial was in its sixth day. Nevertheless having effectively acknowledged that there was substance in the requisition, it

would clearly have been better to check the record that was available.

25. We consider that the trial judge’s presentation of the medical evidence of Prof. Cusack resulted in unfairness to the appellant.

26. In conclusion, we are of the view that the admission of the complainant’s statements without any engagement with the s.16(4)

(a) issues that had been legitimately raised by defence counsel, coupled with the failure of the trial judge to intervene when the

principal witness refused to answer questions resulted in unfairness to the accused. We are also satisfied that the manner of the

presentation of the medical evidence of Prof. Cusack to the jury also resulted in substantial unfairness to the appellant. As a result of

these matters, we are not satisfied that the appellant received a fair trial and accordingly we must allow the appeal. In view of our

findings under these grounds of appeal it is unnecessary to consider the remaining grounds.