3.1 The purpose of this chapter is to give a brief review of the more important or interesting decisions in the area of criminal law in 2005.
3.2 As in previous years, the cases are chosen to give a flavour of the type of legal issues which arise in the area of criminal law. The chapter is not intended to give a comprehensive review of all developments in criminal law during the year. Readers who are interested in such a review may wish to refer to Binchy and Byrne's Annual Review of Irish Law 2005.
3.3 The meaning of 'serious harm' was considered by the Court of Criminal Appeal in the case of Director of Public Prosecutions v. Keith Kirwan (No. 2), (unreported, 28 October 2005). Section 1 of the Non Fatal Offences Against the Person Act, 1997 defines serious harm as "injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ". The issue in the case was whether the statutory definition required a degree of permanency. The Court noted that the wording in the legislation did not contain either the words 'permanent' or 'protracted' and concluded that the Oireachtas was consciously removing requirements of permanence or even long term consequences from the definition of serious harm.
3.4 In the case of an alleged disfigurement however the court concluded that 'disfigurement' connotes an outcome rather than an immediate effect. A court or jury must take into account the outcome of any medical treatment actually given or received, and not just the appearance of the injury in the immediate aftermath of the assault, in assessing whether or not there has been a serious disfigurement.
3.5 In Director of Public Prosecutions v. Peter O'Dwyer (unreported, 28 July 2005) the Court of Criminal Appeal considered whether when death results as a consequence of careless driving, the death is an aggravating factor to be taken into consideration at sentencing. The applicant had been found not guilty of dangerous driving causing death but was convicted by a jury in the Circuit Court of careless driving and was sentenced to one month imprisonment, suspended for 18 months on bond. His licence was also endorsed. On examination of the applicant's motor vehicle, after an accident in which a motorcyclist was killed, Gardaí discovered that the tyres were bald and below the legal limit. The applicant sought leave to appeal the custodial element of his sentence on the grounds that the trial judge erred when imposing sentence in taking into account the death in circumstances where the applicant had been convicted of careless driving only. The Court held that the fact that a death occurred may in itself be a factor to be taken into account in sentencing but that would depend on the court's finding regarding the primary issue of the degree of carelessness and culpability of the driving. In the circumstances of the present case it would be disproportionate to regard the death as an aggravating factor in itself.
3.6 The issue of delay was considered in the road traffic context in a number of cases. In Cillian Fennell, High Court, (unreported, 26 April 2005) a delay of two years and five months, while undesirable, was held not to be excessive where there are reasonable grounds for the delay. The delay was occasioned by a number of adjournments due to lengthy court lists and the unavailability of a garda witness on the dates fixed for the trial.
3.7 Similarly, in Director of Public Prosecutions v. Colin O'Sullivan, High Court (unreported, 11 October 2005), while a delay of two years and three months from the date of the offence to the date of hearing was found to be excessive, there had not been an invasion of the accused's constitutional right to an expeditious trial.
3.8 The parameters of the rights of a detained person to access to legal advice while detained in Garda custody were explored in O'Brien v. Director of Public Prosecutions, Supreme Court (unreported, 5 May 2005). During the appellant's detention the Gardaí recommended a solicitor, who was unable to attend the Garda station for a period of almost five hours. The appellant made statements prior to the arrival of and consultation with his solicitor, which the trial judge ruled were inadmissible, the appellant's constitutional right to be advised by a solicitor having been infringed. The Court of Criminal Appeal certified as a question of law of exceptional public importance whether the entire period of detention was unlawful by virtue of the deliberate and conscious breach of his right of access to a solicitor, and whether all of the statements made by the appellant during the course of that detention were inadmissible in evidence or whether only such statements as were made prior to the appellant being afforded access to a solicitor ought to be excluded. The Supreme Court dismissed the appeal, finding that it was the delay in providing the appellant with legal advice which was unlawful; however, his constitutional rights were restored when he received legal advice, and thereafter he remained properly arrested and in detention under section 4 of the 1984 Act. Accordingly, the applicant was in lawful detention at the time he made the statements subsequent to the arrival of his solicitor and those statements were rightly admitted in evidence.
3.9 In Director of Public Prosecutions v. Tyndall (unreported, 3 May 2005) the Supreme Court considered the requirements for a valid arrest under section 30 of the Offences Against the State Act, 1939, in circumstances where no evidence was led as to the suspicion of a member of the Garda Síochána that the appellant had committed a scheduled offence at the time of the arrest. The section clearly requires that a suspicion is held by the arresting member and evidence of that suspicion may be given by either direct evidence or indirect evidence. The Court held that suspicion, while not defined in the act, is an essential proof, and should be bona fide and not irrational. It is a fact to be proved by direct evidence, or it may be inferred from the circumstances. The circumstances of this case were not such as to enable a court to infer the suspicion.
3.10 In Director of Public Prosecutions v. Boyce (unreported, 21 December 2005) the Supreme Court considered the taking of bodily samples for forensic and DNA testing. The Gardaí had obtained a blood sample with the full and free consent of the appellant, without regard to the formalities of the Criminal Justice (Forensic Evidence) Act, 1990. It was argued that the failure to take the sample in accordance with the Act rendered the sample inadmissible. The Supreme Court held that the Act does not limit the right of Gardaí to take or accept forensic samples from persons that are voluntarily provided. If forensic evidence is lawfully obtained in relation to a particular offence which ultimately provides evidence in relation to other offences, this in principle does not preclude its admissibility unless there are other special elements such as oppression or bad faith.
3.11 The Court also considered whether forensic samples ought to be treated similarly to incriminating statements for the purpose of the law relating to self-incrimination. The Court endorsed the approach of the European Court of Human Rights in Saunders v. United Kingdom ([1997] 23 EHRR 313), in considering the right not to incriminate oneself, distinguishing between self-incriminating statements made by the accused and other forms of forensic evidence which exist independently of the will of the accused. Matters such as forensic samples, documents and other property of an accused which may be obtained in the course of the gathering of evidence exist independently of the will of the accused, and their objective evidential value is not dependent on a self-incriminating statement or communication by the accused.
3.12 The parameters of cross-examination of expert evidence were also looked at. Extracts from the scientific literature had been quoted to the exert witness. It was emphasised that such citations or extracts do not form part of the evidence. If the proposition cited from the extract is not accepted by the expert witness then it is open to counsel for the defence, if they consider it appropriate to do so, to call expert evidence to support that proposition and such expert evidence may rely on or adopt the proposition cited from the textbook or treatise.
3.13 The Garda Síochána Act represents the first major revision of the operation of the Garda Síochána since the foundation of the State, and contains a number of reforms in relation to the management and administration of the force. It also clarifies the functions and objectives of the force. Section 8 provides a statutory basis for the prosecution of summary offences by members of the Garda Síochána in the name of the Director of Public Prosecutions and enables the regulation of the practice by the Director. This will be effected by the giving of specific or general directions as to the institution and conduct of prosecutions, and by taking over any prosecution initiated by a member of the Garda Síochána and either proceeding with or terminating it.