Supporting Documents:
 19-19 Resp Notice.web.pdf 19-19 AFL.web.pdf
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 23rd October, 2018 |
DATE OF ORDER: 23rd October, 2018 |
DATE OF PERFECTION OF ORDERS: 31st January, 2019 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 8th February, 2019 AND WAS IN TIME. |
1. This determination concerns a decision of the Court of Appeal made on 23 October 2018; [2018] IECA 332. The applicant Wayne Kinsella was found guilty on 21 May 2012 by a jury of the murder of Adil Essalhi on 6 January 2011 in the Tyrrelstown area of Dublin.
2. The key aspect of the case which is sought to be appealed concerns corroboration. For some reason, which is not clear to the Court, the prosecution and the defence counsel agreed that a corroboration warning should be given not in respect of persons who were participants in the crime or who would in any way, it seems, assisted in ensuring the escape of those who had committed the crime but who were instead civilian witnesses. The question over whether evidence which was raised by the accused concerned the possibility that they collaborated with each other in order to either invent his involvement in the crime or to exaggerate his involvement in the crime in order to assist another person, who happened to be, it seems, a nephew of the accused. The corroboration warning applies to accomplices. If there was any issue as to collusion and that was a matter which could be properly explored in evidence without the necessity of adding a corroboration warning and the concomitant complication in the judge’s charge that might arise.
3. The circumstances of the commission of the offence were such that the victim was suspected by the accused, due to a misapprehension, of having been involved in the murder of another individual who was his brother. In a remark made at the Garda station the accused admitted having been present at the scene of the murder but denied participating in that murder in any way. In the submissions, the prosecution point out that something being corroboration is not made into something that is not corroboration by reason of the fact that an accused person admits a fact to a policeman.
4. As recounted in the judgement of the Court of Appeal, the body of the victim was found in consequence of information provided by the accused. The accused, the victim, and another person went to a party on the night in question. The three of them then left and was seen on CCTV camera proceeding in the direction where the body of the victim was later found. Within a short space of time, the accused and the other man returned. The victim met his death in the fields which was near to the place where the party was taking place due to an attack with a knife and, from the forensic evidence, from slashing wounds consistent with an attack by a machete.
5. If prosecution and defence counsel agree to a particular course of action that is, of course, of assistance to the conduct of the trial. If, however, there is a departure from general rules so that witnesses who are not classified within the category where an accomplice warning should be given are put by apparent agreement with in that category, the trial judge is entitled to query that. It is the entitlement and duty of the trial judge to control the trial and to ensure that any direction which is given in the charge to the jury at the close of the case is one which assists in the jury coming to a verdict in accordance with law. There is nothing to indicate why any of the witnesses in question could be regarded as garnering an accomplice warning.
6. In any event, the trial judge was addressed on corroboration in the absence of the jury. As is the appropriate procedure, counsel for the prosecution pointed out items of evidence which could be regarded by the jury as corroboration. The trial judge then charged the jury and pointed out these items of evidence as being capable of being corroboration. The jury were also told that whether something was corroboration as a matter of fact or not was a matter for the jury and not a matter for the trial judge. It was only if the jury accepted the particular items of evidence, or any one of them, as tending to show that the accused committed the crime that it would be corroboration. The appropriate analysis would involve a consideration of the corroboration evidence first and then a consideration of the evidence in respect of which the warning was given with a view to determining whether or not the prosecution had proved the case beyond reasonable doubt on the basis of the analysis of all of the evidence.
7. The trial judge’s directions were found by the court of criminal appeal to be clear. Notwithstanding that, there was an elaborate series of requisitions by the defence in relation to the corroboration warning and the nature of corroboration.
8. In reality, there was a simple exposition of the law in relation to corroboration and the decision of the jury was correctly explained by the trial judge to them.
9. The Court of Appeal considered this matter on the basis of existing principles of law. In particular, they noted that Denham J had explained the law on corroboration in a careful fashion which has been applied ever since in the case of The People (DPP) the Gilligan, and that this law was applied in the later case of The People (DPP) v Meehan. This latter case disposed of the erroneous theory that evidence is subject to a corroboration, or any other, warning should first of all be considered on its own before consideration was given to any other evidence that might be regarded as corroboration. As much of the case law states, when there is an issue in relation to evidence it will be looked at against the background of the relevant facts and considered in relation to whatever other evidence supports the proposition in issue. The law is therefore clear.
10. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
11. The application for leave filed, and the respondent’s notice thereto, are both published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in further detail.
12. The court is not one for the correction of error. No aspect of this ruling has precedential value as a matter of law. The Court is tasked under the Constitution with correcting injustices in the context of being a final appellate court and with considering cases of general public importance.
13. While on behalf of the accused it is argued that there is a lack of clarity on the law on corroboration and it is necessary for this court to consider is again, the Court remains surprised by the application of a corroboration warning to witnesses who clearly did not participate in a murder which happened within a very short timeframe in the presence of two individuals, one of whom was the accused. For the prosecution it is said that no issue of general public importance, nor any issue touching on the interests of justice, arises in this case. The prosecution states that the factual circumstances of the case are unremarkable and that no issue of law has been identified which requires any elucidation or extension of the application of any further clarity. The prosecution pointed to the abundance of clear authority on the law in question.
14. The Court is not convinced that any issue of general public importance which requires this court to intervene for the purpose of stating the law correctly or clarifying existing law has been persuasively urged upon the court. Nor is the pleaded circumstances in relation to the interests of justice persuasive.
The Court therefore declines the application for leave to appeal
AND IT IS HEREBY ORDERED ACCORDINGLY
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