Cork man faces retrial on robbery charge after judge's 'erroneous reference'
A Cork man has had his conviction for robbery quashed over the trial judge’s “erroneous reference” to the evidence of a garda, in three words, without correcting himself, that the accused was previously known to gardaí.
Trevor O’Sullivan (39), with an address at Roche’s Building, in Cork, had denied being involved in the robbery of Viron Kajal (35) on Spring Lane, Blackpool on May 24, 2016.
He was found guilty by a jury at Cork Circuit Criminal Court and sentenced to seven years imprisonment with the final 18 months suspended by Judge Gerard O’Brien on November 23, 2016.
O’Sullivan successfully appealed his conviction today over the trial judge’s “erroneous reference” to the evidence of a Garda, that O’Sullivan was a person “who he knew” previously, potentially conveying to the jury a suggestion that O’Sullivan was previously involved in criminality.
In fact, the garda said in evidence that “he now knew” the male in question to be O’Sullivan.
Giving judgment in the three-judge Court of Appeal, Mr Justice Alan Mahon said Mr Kajal was walking on Spring Lane when he was approached by two men.
One man grabbed him from behind and severely injured one of his eyes temporarily reducing sight in that eye.
He was assaulted and robbed of a silver cigarette case and a €50 note. He reported the incident to Gardai before accompanying Gardai in a patrol car in search of his attackers.
Mr Justice Mahon said he identified two men outside a coffee shop at Thomas Davis Street, being O’Sullivan and his co-accused, his brother. He was certain about the co-accused but less certain about O’Sullivan.
The identification took place about thirty minutes after the incident had occured. The stolen silver cigarette box was found on O’Sullivan’s co-accused, his brother, while a €50 note was found on O’Sullivan.
The defence case was that O’Sullivan did not have any involvement in the robbery of or confrontation with Mr Kaja. The co-accused admitted robbing Mr Kaja but insisted his brother, O’Sullivan, was not with him at the time.
O’Sullivan said he was with his wife at the time and she confirmed same in evidence.
Counsel for O’Sullivan, Paula McCarthy BL, submitted that the trial judge erred in failing to discharge the jury after having stated incorrectly the evidence of a detective Garda that he previoulsy knew her client. The said misstatement of the facts was so prejudicial, and the jury could not be recharged on the issue, the jury had to be discharged, Ms McCarthy submitted.
Mr Justice Mahon said the trial judge erroneously advised the jury in the course of his charge that a detective Garda had stated in his evidence that: “he observed two males who he knew to be” O’Sullivan and his brother. In its judgment, the Court of Appeal underlined the three words in question.
In fact, the detective Garda said he “now knew” the two men to be O’Sullivan and his brother.
Ms McCarthy argued that this error, accepted by the prosecution as such, was prejudicial to the extent that it couldn’t be corrected by a recharge.
Mr Justice Mahon said the prejudicial effect of the judge’s “erroneous reference” was at least capable of conveying to the jury that O’Sullivan was known to Gardai prior to this robbery which in turn might suggest that he was previously involved in criminality.
He said mistakes can and do occur in the course of the review of evidence by a trial judge in the course of his charge to the jury.
In this instance, Mr Justice Mahon said the mistake could very easily have been corrected. He said the trial judge could have readdressed the jury on the basis that while he did not believe he had made the error as suggested, in case he had done so, he would now state the position correctly.
Not doing so rendered am otherwise impeccable charge to the jury "flawed in an important aspect" with the consequence that the verdict of the jury had to be considered unsafe and was required to be quashed.
Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Hedigan, said the court would allow the appeal on this ground, quash the conviction and direct a retrial.
O’Sullivan was remanded in custody to appear before Cork Circuit Criminal Court on February 5 next.
