Court of Appeal dismisses appeal against conviction and sentence for threat to kill and criminal damage.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: 2016/118

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

PAUL MCCARTHY

Appellant

JUDGMENT of the Court (ex tempore) delivered by Mr. Justice Edwards on the 25th April 2017

Introduction

1. The appellant was charged on three counts relating to an incident which occurred at N Square Restaurant, Camden Quay, Cork on

the 6th of December 2014. The appellant was charged on count no 1 with unlawfully producing a broken bottle to intimidate another

person contrary to section 11 of the Firearms and Offensive Weapons Act 1990. Count no 2 related a threat to kill contrary to section

5 of the Non-Fatal Offences Against the Person Act 1997. Count no 3 charged the appellant with criminal damage contrary to section

2(1) of the Criminal Damage Act 1991 in that the appellant damaged certain property being restaurant utensils, glasses, a computer,

cutlery and restaurant furniture without lawful excuse. The appellant was convicted by unanimous verdict on all three counts on the

28th of April 2016.

2. On the 5th of May 2016 the appellant was sentenced to six years imprisonment on count no 2, involving the threat to kill offence,

with the final eighteen months suspended; three years imprisonment on count no 1, namely the production of a broken bottle; and

count no 3, involving criminal damage was taken into consideration. All sentences were to run concurrently and were backdated the

16th of February 2016, when the appellant went into custody.

3. The appellant now appeals against both his conviction and sentences.

The Relevant Facts

4. On the evening 6th of December 2014 a man and a woman stormed into the premises of N Square Restaurant on Camden Quay in

Cork city. They had in their possession a cardboard box containing bottles of alcohol. They were abusive, knocking several table

settings onto the floor. They were asked to leave. The pair were escorted to the porch of the restaurant when the man asked to go

back and pick up the box of alcohol. Nabil Sharif, the restaurant owner and head chef, told the man that he would get it for him.

When he did so, the bottom of the box fell open and the bottles crashed to the ground.

5. The man then picked up the neck of a broken bottle with a jagged edge and proceeded to make a “punching” motion at Mr. Sharif

but did not make contact with him. He shouted “you F this”, called him a “foreigner” and told him to “go back to your own country”

and that “you are a dead man”. At this point Mr. Sharif pulled back into the kitchen counter inside the restaurant. The man pursued

Mr. Sharif, waving the bottle and again shouting “dead man” and “go back to your country”. At this point Mr. Sharif picked up a chair

to defend himself. The bottle came very close to his face and he threw the chair at the man. The woman came in and jumped on Mr.

Sharif to stop him fleeing. He got away from her and threw the chair at the man a second time before retreating to the kitchen. Mr.

Sharif hit him with the nozzle of a vacuum cleaner, and the man threw the bottle at him. Mr. Sharif punched the man and he left.

6. At 7:25 p.m. on the night in question, Garda Joseph Maher responded to a report of a disturbance at the relevant premises. Under

examination in chief he told the jury that he had afterwards patrolled the area. On MacCurtain Street, near the restaurant, he

encountered the man and woman holding a white box. He cautioned the woman and asked her if they had been in the N Square

restaurant and she acknowledged that they had been there. The man gave his name as Paul McCarthy and his date of birth as 24th

of July 1976. Garda Maher described him as seeming argumentative, defensive and agitated and he appeared to be intoxicated. He

arrested the man calling himself Paul McCarthy under section 24 of the Criminal Justice (Public Order) Act 1994 for allegedly

committing an offence contrary to section 4 of the Criminal Justice (Public Order) Act 1994. He was taken to a Garda Station where

he was detained for a number of hours before being released at 4 a.m.

7. Garda Maher later returned to the restaurant and established that there had been a CCTV system in operation there. The relevant

footage was downloaded and was examined about a week later. In the course of that examination Garda Maher recognised the man

involved in the incident as being the man who gave his name as Paul McCarthy on MacCurtain street. No other steps, such as an

identification parade, were taken to identify the man involved in the incident in the restaurant. Quite some time later the appellant

was charged with the offences on the indictment. The appellant was not known to Garda Maher before the incident. At trial, Garda

Maher gave evidence while the CCTV footage was being shown to the jury, and confirmed that he had identified the man with the

woman to be seen on that footage as being the Paul McCarthy whom he had encountered and arrested on MacCurtain Street later

that evening.

The Defence Mounted at Trial

8. The appellant’s defence was that he was not the man who had committed the offences in question. It was accepted that the man

who gave his name as Paul McCarthy to Garda Maher on MacCurtain Street was the man on the CCTV footage, however it was

contended that that person was not the appellant. The appellant was never arrested, detained or questioned in relation to the

incident, nor was he asked to partake in an identification parade. The appellant claimed that the woman in the CCTV was the

appellant’s cousin, Sharon Maugham, but he maintained that the male was not him. He contended that the man who had committed

the offences had given Garda Maher the name Paul McCarthy as a false name, together with a date of birth which it might be inferred

had been provided to him by his appellant’s cousin, Shannon Maugham, although the man in fact got the year of the appellant’s birth

wrong as he was actually born in 1972 rather than in 1976.

Grounds of Appeal

9. In respect of his conviction, Mr. McCarthy relies on three grounds. They are as follows:

a. The trial judge erred in principle in ruling that Garda Maher was entitled to give evidence identifying the appellant from

the CCTV footage.

b. The trial judge erred in principle in stating to the jury that Garda Maher had identified the appellant from CCTV footage.

c. The trial judge erred in the course of his charge by implying that the person giving his name as Paul McCarthy on

MacCurtain Street was the appellant.

Analysis and Decision

10. In his first ground of appeal the appellant complains that the trial judge erred in principle in ruling that Garda Joseph Maher was

entitled to give evidence identifying the appellant from the CCTV footage. Counsel for the appellant contends that the impugned

evidence given by Garda Maher in this case amounted to a dock identification. We do not accept that that is so.

11. The classic dock identification occurs where an eye witness to a crime, whether that is the victim or a third party, identifies for

the first time in the course of giving evidence that the person in the dock is the person who perpetrated the crime. That is not what

occurred in this case.

12. It is, however, in any event erroneous to suggest that dock identification is inadmissible as a matter of principle. That is not so.

However, dock identification evidence has for many years been recognised as undesirable and as carrying a high risk of error. It

therefore may be excluded, and in the majority of cases is likely to be excluded, by the trial judge as a matter of discretion, not

because it is inadmissible in principle but because it is in general regarded as having very limited probative value and yet carries

considerable prejudice. The need to ensure that the trial is conducted in accordance with minimum standards of fairness may

therefore require its exclusion.

13. This approach was adopted in England in R v Cartwright (1914) 10 Cr App R 219, and was confirmed in the seminal case on the

point in this jurisdiction i.e., in The People (Director of Public Prosecutions) v. Cooney [1997] 3 I.R. 205. In Cooney, Keane J

characterised dock identifications as “undesirable and unsatisfactory in general”.

14. As previously stated, we do not regard what occurred in this case as being a dock identification. Garda Maher did not, in the

course of giving his evidence, identify for the first time the appellant as being the person he could see on the CCTV footage. While he

did not state expressly when he had arrived at that conclusion, it was clearly to be inferred that he had done so on the occasion

when he viewed the CCTV footage from the restaurant approximately a week after the incident, following which he had made his

statement in writing identifying the male perpetrator to be seen in the footage as the Paul McCarthy he had arrested on McCurtain

Street on the 6th of December 2014. It was arising out of this that the appellant came to be charged. Although the appellant was not

personally known to Garda Maher prior to the night of the 6th of December 2014, Garda Maher had had a significant transaction with

the person he believes to have been the appellant on the night in question in which he had spoken to the man, arrested him,

conveyed him to a Garda station, and had procured his detention having presented him to the member in charge. This was not a

fleeting encounter by any stretch of the imagination.

15. Garda Maher’s statement was in the Book of Evidence and indeed was expressly referred to by counsel for the appellant in

addressing the trial judge immediately after announcing his appearance at the very start of the trial.

16. The evidence in fact given before the jury by Garda Maher was of an identification made by him on an occasion in the past, when

he had viewed certain CCTV footage, that a male person to be seen on that footage was the same person as he had arrested on

MacCurtain Street on the night of the 6th of December 2014. Moreover, it was clearly to be inferred that he believed that person to

be the appellant, although he never stated that in terms to the jury. Indeed, at one point in leading him through his evidence in chief

wherein he was describing what he understood was to be seen on the CCTV footage which was then in the course of being played to

the jury, prosecuting counsel asked him “And that’s Mr McCarthy. And I see the lady in the white jacket there as well?”, but Garda

Maher did not in fact answer the question and it was left hanging there. Be that as it may, we are of the firm view that had Garda

Maher in fact replied to expressly confirm his belief that the person on the CCTV footage was the appellant it would not have been

inadmissible evidence, and it would not have constituted a dock identification.

17. The appellant disputed the correctness of Garda Maher’s recognition, and that was of course his entitlement. Garda Maher was

available to be cross-examined. He could, for example, have been cross-examined as to what attempts were made to arrange a formal

identification parade; and, if none, why there were no such attempts. That he was not cross-examined on these issues was due to a

tactical or strategic decision made by the appellant’s legal team. He was, however, otherwise cross-examined and was rigorously and

forensically challenged as to the correctness of his recognition. Unlike in a case of true dock identification there was nothing

inherently unfair about the evidence adduced from Garda Maher. It was fully capable of being tested and challenged and the defence

were in no way taken by surprise. Moreover, although it was a matter entirely for the jury as to what weight they would afford to it,

Garda Maher’s evidence could potentially have been afforded significant weight in the light of the earlier dealings between Garda

Maher and the appellant in the course of the appellant’s arrest and detention on MacCurtain Street on the 6th of December 2014.

18. In the circumstances we are satisfied that the trial judge was correct not to rule the evidence of Garda Maher to have been

inadmissible, and we consider that he would not have been justified in exercising his discretion to exclude it. We therefore reject

ground of appeal no 1.

19. We wish to add the following. In partial support of his argument in respect of ground no 1, counsel for the appellant had placed

some reliance on The People (Director of Public Prosecutions) v. Maguire [1995] I.R. 286, a decision of the Court of Criminal Appeal in

which it was held, inter alia, that although the evidence of the video film was admissible, the usual and proper warnings required in

relation to identification evidence must be given to the jury and that such warnings include the principle that a jury should only seek

to form its own view as to the identity of an accused where there is no independent evidence of identification; in those

circumstances a jury may use such view together with its view of the other evidence adduced in reaching a decision. We would

remark that the decision in Maguire might perhaps be regarded as being “of it’s time”, and that today, where the use of CCTV footage

in criminal cases is almost ubiquitous, and the material is frequently of very high quality, the admonition that a jury should only seek

to form its own view as to the identity of an accused from CCTV footage where there is no independent evidence of identification

might fall for re-consideration in an appropriate case. However, this is not such a case.

20. The appellant’s second ground of appeal complains that the trial judge erred in principle in stating to the jury that Garda Maher

had identified the Appellant from CCTV footage. While it is technically correct to say that Garda Maher did not state that in terms, we

have already expressed the view that it was clearly to be inferred from the entirety of his evidence, and the entire circumstances of

the case, that Garda Maher was making that identification, and the jury could not have been in doubt that that was so. We find no

error in the way in which the trial judge left the matter to the jury. It did not in any way preclude them from considering the defence

case which was that Garda Maher was simply wrong in his belief that the man before the court was the same man as he had arrested

on the 6th of December 2014, or from considering the possibility that a false name had been given.

21. The judge went no further than stating that Garda Maher held the belief that he did. He did not in any way usurp the jury’s

entitlement to evaluate the correctness or otherwise of that belief. On the contrary, he expressly outlined the defence case to the

jury and told them:

“The defence case is that it is not Paul McCarthy that is sitting in this court perpetrated these offences. It is suggested

that no questions were asked of Mr McCarthy on the night in question. The defence asked if it was the same person that

were arrested on that night as were arrested subsequently. Is this the one and same person that carried out the

offences in the restaurant in question? You must decide whether or not beyond reasonable doubt that the correct date

of birth and name were given to Garda Maher on MacCurtain Street. It is put to you that the evidence you have seen is

through an imperfect screen. It is suggested that the person on the CCTV has a black beard while the defendant has a

white beard. These are all matters of fact, ladies and gentlemen. You must decide, ladies and gentlemen, to the

requisite standard of beyond reasonable doubt that the CCTV footage harvested by Garda Maher which records the

incidents that occurred at the restaurant of the 6th of December relates to the accused person that's in court.”

22. The third ground of appeal complains that the trial judge erred in the course of his charge by implying that the person giving his

name as Paul McCarthy on MacCurtain Street was the appellant. The basis for this is that the trial judge, in reviewing Garda Maher’s

evidence referred repeatedly to “Paul McCarthy” rather than to “the man giving his name as Paul McCarthy”, thereby, it is suggested,

conveying to them that the judge himself believed that it was one and the same person as the appellant. Having regard to the

express, and accurate, putting of the defence case by the trial judge as illustrated in the passage quoted in the last paragraph

above, we have no hesitation in dismissing this ground in limine. It is manifest from the transcript that the charge was balanced and

fair and there was no attempt to, nor was there in fact, any inappropriate influencing of the jury by ostensible endorsement of a

witness’s testimony.

23. The appeal against conviction is therefore dismissed.

The appeal against the severity of the sentences

24. Following upon his conviction by the jury the appellant was sentenced to three years imprisonment on count no 1, to date from

the 16th of February 2016. He was further sentenced to six years imprisonment on count no 2, also to date from the 16th of February

2016 but with the final eighteen months thereof suspended upon conditions. Count No 3 was taken into consideration.

25. The appellant was 39 years of age at the date of sentencing and homeless. His address is care of the Cork Simon Community. He

has longstanding alcohol and substance abuse problems. He has 129 previous convictions, including numerous convictions for s. 2

assaults, and for various types of public order offences. In addition he has numerous convictions for criminal damage, handling stolen

property, obstruction of peace officers and possession of offensive weapons. In terms of more serious offences he has a conviction

for a s. 3 assault for which he received a sentence of four years imprisonment from the Circuit Court imposed on the 27th of October

2009, a conviction for robbery for which he received a sentence of one year and six months imprisonment from the Circuit Court

imposed on the 7th of February 1997 and a second conviction for robbery for which he received a sentence of six years imprisonment

from the Circuit Court imposed on the 26th of June 1999.

26. In sentencing the appellant the trial judge stated:

“Mr McCarthy is a 39 year old man found guilty unanimously by a jury of his peers of the offences that are before the

Court. The sentence which must be imposed by the Court must be proportionate to the crime within the context of the

maximum sentence prescribed by statute. These offences can be considered to be in the lower end of the upper part of

the scale on the spectrum. The threat to kill in particular is a very serious offence. Aggravating and mitigating factors

must form part of the deliberations of the Court in the imposition of the sentence, as must the circumstances of the

accused person. The case was contested on a legal point as opposed to the facts alone. Witnesses were not put to

further stress by cross examination. The accused's personal circumstances are truly appalling, but there is little else to

mitigate the effect of these offences upon the victims and indeed, upon the customers that were, as I say, going about

their daily business in Cork city. People must be allowed to go about their daily business without living in fear.

Whether or not the accused person has shown remorse and displayed appreciation for the wrongdoing or the offence

must also be considered. There is no evidence of remorse or any appreciation by this defendant with respect to these

offences. This can be explained to some extent by the long history of substance and alcohol addiction and the chaotic

lifestyle which is a natural consequence which flows therefrom. The previous criminal record and the likelihood of Mr

McCarthy re offending must be considered by the Court. Mr McCarthy's previous history of offending speaks for itself;

129 previous convictions places Mr McCarthy in a very difficult position in respect of the consideration of sentencing

options under this heading. The range of offences committed by this defendant span an extremely long period, and as I

said in relation to another accused earlier this week, they are the bread and butter of the Circuit Court and span the full

range of seriousness. In respect of cooperation with the gardaí during the investigation of the offence, there was none

as Mr McCarthy was too intoxicated to be able to deal appropriately with the gardaí. And indeed, it was a very telling

remark by the garda giving evidence today that she stated that she had never met Mr McCarthy sober.

The consequence or the effect of the wrong doing on the victims must be considered. The victim impact statement

states that the complainants, as it were, their lives have been turned upside down. It was evident from the CCTV that

there was real and palpable fear of victims and indeed the customers who were having their meal in the restaurant on

that occasion and the victims have been left emotionally shattered. Due regard must be had for any contents of any

reports, probation, psychiatric or others; there are no such reports that have been handed to the Court and so I cannot

consider them in that regard.

In that context, therefore, I sentence Mr McCarthy to a sentence of three years in prison in relation to the section 11

offence. I believe that a sentence of seven years with a discount of one year for the manner in which the trial was run

and I therefore impose an imprisonment of six years with the last 18 months suspended on the basis that he engage

with the probation services and that he avail of whatever services are available to him while incarcerated. The probation

services would have the right to re-enter the matter during the period of suspension if they have a difficulty in respect

of finding a residential placement for Mr McCarthy. And the charge in relation to criminal damage, I'll take into

consideration. On his own bond of €200.”

27. The appellant complains that the sentences imposed upon him were too severe. However, in substance and in truth his complaint

in that regard relates only to the sentence imposed on count no 2, namely the threat to kill. He suggests that in sentencing him on

that count the sentencing judge erred by locating the offence towards the lower end of the upper scale. It is suggested that in doing

so the sentencing judge gave too much weight to the aggravating factors.

28. We cannot agree with the submission on behalf of the appellant. By any standards this was a serious instance of a threat to kill.

As counsel for the respondent has identified there were numerous aggravating factors, including the use of a weapon of offence; the

repetition of the threat; the fear induced in the victim at the time, the presence of the victim’s wife and the presence of customers in

the victim’s restaurant; the fact that customers had to leave the restaurant during the offence. the fact that the victim had to

defend himself by knocking over the appellant. the racist and xenophobic sentiments expressed, and the long term impact on the

victim.

29. The headline sentence of seven years discounted to six years for the reason identified by the trial judge was in our view

appropriate to reflect the gravity of the offence, having regard to the offender’s moral culpability and the harm done. We therefore

find no error of principle. For completeness, although it is not an issue in the appeal, we further consider that the suspension of the

final eighteen months was an appropriate discount to reflect such mitigation as was actually available in the case, bearing in mind

that the case was contested, there had been no co-operation, a bad previous record and no evidence of remorse.

30. We therefore also dismiss the appeal against the severity of the sentences imposed.