Evidence identifying accused need not consist of physical identification in court

In the Matter of Section 52 of the Courts (Supplemental Provisions) Act 1961.

Director of Public Prosecutions (prosecutor) v Michael Crimmins (accused).

Criminal Law - Mode of identification of accused as perpetrator of alleged criminal offence - Summary trial in absence of accused - Conviction in absence of accused - Standard of proof - Consultative case stated - Non-Fatal Offences Against the Person Act 1997, section 2 - Petty Sessions (Ireland) Act 1851, section 20(2).

The High Court (Mr Justice O Caoimh); judgment delivered 8 June 2000.

Before entering a criminal conviction against an accused person, the District Court hearing the accusation must be satisfied that there is evidence identifying the accused as the perpetrator of the offence alleged. Such evidence, however, need not consist of a physical identification of the accused in court. Mr Justice O Caoimh so held in determining a consultative case stated by District Judge Mary O'Halloran.

Justin Dillon BL for the prosecutor; Hugh Hartnett SC and David Sutton BL for the accused.

Mr Justice O Caoimh said that this was a consultative case stated by District Judge Mary O'Halloran, a district judge assigned to District Number 13. Mr Justice O Caoimh said that the accused appeared before the District Court on 3 June 1999, when a charge of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997 was heard on summary trial in the District Court. Mr Justice O Caoimh said that it appeared from section 2 of the 1997 Act that an offence contrary to section 2 is only triable summarily and that no copy of the summons was annexed to the case stated and that neither the identity of the alleged injured party nor the address of the accused was revealed in the case stated.

Mr Justice O Caoimh referred to paragraph 2 of the case stated, which stated: "At the hearing a number of witnesses indicated that the accused had assaulted a third party. It was proven that the injured party was a pupil at John The Baptist, Community School in the County of Limerick. It was stated in evidence and not contradicted that the accused was a teacher at said school."

Mr Justice O Caoimh said that the court was not furnished with a copy of the summons and that neither the accused's address nor the identity of the alleged injured party was indicated in the charge or accusation before the District Court. Mr Justice O Caoimh said that the case stated did not indicate that the "third party" and "injured party" were the same person and that it was assumed that the word "indicated" was to the effect that the unnamed witnesses gave evidence that the accused had assaulted someone who may have been identified as the injured party. Mr Justice O Caoimh said that it was to be noted that the words used were that the evidence of these witnesses indicated that the accused committed an assault and thereby it was suggested that their evidence identified the accused as the perpetrator of the assault.

Mr Justice O Caoimh said that paragraph 3 of the case stated indicated that, at the end of the prosecution evidence, counsel for the accused submitted that "the charges should be dismissed as there had not been any physical or formal identification of the accused in court". This raised the question of whether or not the District Court could convict an accused of a criminal offence in the absence of that person being physically or formally identified in court as being the offender. Mr Justice O Caoimh said that while the case stated did not state that the accused was present for the hearing, counsel for both the accused and the DPP agreed that the accused was present and that the case stated should be considered on that basis.

Mr Justice O Caoimh said that it appeared that, in the District Court, the prosecuting Garda superintendent submitted that a physical identification of the accused was not necessary because the accused was named and described as a teacher at the relevant school and his address was given.

Mr Justice O Caoimh referred to the accused's reliance on Woolmington v Director of Public Prosecutions [1935] AC 462 in support of the submission that a physical identification of the accused was necessary and the judgment of Sankey LC at page 481 where he stated, inter alia, that "no matter what the charge or where the trial to prove the guilt of the prisoner is part of the common law". Mr Justice O Caoimh referred to the submission that there was no difference between the District, Special Criminal and Central Criminal Court and that proof of identity applied to each such court. Mr Justice O Caoimh further referred to the accused's reliance on O'Leary v Attorney General [1991] ILRM 454 wherein Mr Justice Costello considered that there could be no change in the persuasive burden resting on the prosecution. Mr Justice O Caoimh referred to the submission that there was no power to convict in the absence of the accused and that the essential proofs in the case were: (1) that the injured party named in the charge/accusation was assaulted; and (2) that the person accused of the offence was the perpetrator of the assault on the injured party referred to in the charge.

Mr Justice O Caoimh referred to the accused's further submission that there must be proof beyond all reasonable doubt that it was the accused person who carried out the crime.

Mr Justice Caoimh considered the DPP's submission that there was no need for a formal or physical identification and that, while the case stated did not clearly indicate the exact nature of the evidence given, it might be that there was other evidence before the District Court that justified a conviction of the accused on the charge. Mr Justice O Caoimh said that a trial on indictment proceeds in circumstances where the accused has been arraigned before the jury and, in such circumstances, the accused is invariably present at least at the commencement of the trial. Mr Justice O Caoimh said that, although a trial may continue in certain circumstances in the accused's absence, the situation in the District Court is different because the accused is not arraigned and, where the District Court trial is of an offence triable summarily, the accused may chose not to attend and the Court could proceed in the accused's absence (section 20(2) of the Petty Sessions (Ireland) Act, 1851).

Mr Justice O Caoimh said that, if the District Court trial proceeds in the accused's absence, then, before a verdict of guilty can be recorded in respect of an offence, the prosecution must satisfy the same proofs that are required when the accused is present. Mr Justice O Caoimh said that, while proof of identity in court will frequently be satisfied by a witness identifying the accused in court, there is no dock in the District Court and, unlike the situation in a court trying an accused on indictment, there is no place which the accused is required to occupy during the District Court trial.

Mr Justice O Caoimh said that, in the instant case, the District Court could proceed to convict the accused if it received evidence satisfying it beyond all reasonable doubt that the injured party was assaulted in accordance with the charge against the accused and that the assault was perpetrated by the accused. He further said that, if the accused was not physically identified in the District Court, then, before proceeding to a conviction, the court must be otherwise satisfied that the evidence related to the accused and that the evidence proved his guilt of the offence beyond all reasonable doubt.

Mr Justice O Caoimh said that if, in the present case, the District Court was satisfied that the accused was known to the injured party (or any other witness) at the time of the alleged commission and evidence was given by the injured party or some other witness showing that the accused committed the assault alleged, then, notwithstanding the fact that there may not have been any physical identification of the accused in court, the court could convict proceed to a conviction. Mr Justice O Caoimh said that this evidence might be that of a witness identifying the accused by name and address and might include evidence proving that he was the teacher of the injured party at the time and at the school in question. Mr Justice O Caoimh said that all the essential ingredients of the offence(s) as charged must be proved to the satisfaction of the District Court judge before the accused could be convicted.

In conclusion, Mr Justice O Caoimh answered the question posed as follows: Before being entitled to enter a conviction against an accused person for any criminal offence alleged, the District Court hearing the accusation must be satisfied that there is evidence identifying the accused as the perpetrator of the offence alleged but such evidence need not necessarily consist of a physical identification of the accused in court.

Solicitors: Chief State Solicitor for the prosecutor; John J. M. Power & Co. (Limerick) for the accused.