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The Irish Reports/1961/THE PEOPLE (at the suit of the ATTORNEY GENERAL) v DOMINIC CASEY (1) -
[1961] IR 264

[1961] IR 264

THE PEOPLE (at the suit of the ATTORNEY GENERAL) v DOMINIC CASEY (1)

COURT OF CRIMINAL APPEAL

16, 17 MAY 1961

31 JULY 1961

Criminal law-Evidence-Indecent assault-Children-Hearsay evidence of complaint made by

child-Admissibility-Unsworn evidence of child-Nature of warning to be given to jury.

Criminal law-Evidence-Visual identification-Necessity of general warning of its dangers-Identification

parade-Identification by child-Child not called to give evidence-Secondary evidence of child's acts and words
at parade-Admissibility-Warning to be given to jury in event of its admission.

The applicant was convicted of indecent assault upon two five-year-old boys, the only issue at the trial being
the identity of the boys' assailant. One boy gave unsworn evidence at the trial, stating that he met "young
Casey" (whom he did not identify as being the applicant) shortly before the time fixed as that of the assault,
but he was unable to give any evidence of what happened after he met "young Casey"; his mother swore
that on the day after the assault the boy had given her a description of the assault. This boy failed to identify
anybody at an identification parade. The second boy identified the applicant at that identification parade,
and secondary evidence of this identification was given by the Garda officer in charge of the parade, but this
boy was not called to give evidence, sworn or unsworn. The trial Judge failed to warn the jury of the danger
of acting either on the unsworn evidence of the first boy or on the secondary evidence of the identification by
the second boy, which he described as "positive evidence" and equated with evidence of identification given
on oath by two other witnesses.

Held by the Court of Criminal Appeal 1, that there is no general rule of practice requiring a trial Judge to warn
the jury of the dangers inherent in evidence of visual identification.

2, That the evidence of the first boy's mother of the complaint made to her, being hearsay, was improperly
admitted in evidence.

3, That the trial Judge ought to have warned the jury of the danger of accepting the first boy's unsworn
evidence, particularly in view of the fact that he had at no time identified his assailant.

4, That, in view of the fact that the second boy had not given evidence, evidence of his acts and words at the
identification parade, though strictly admissible, ought not to have been admitted, having regard to the
likelihood that such evidence might unfairly prejudice the jury against the accused.

R v Christie [1914] AC 545 applied.

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5, That, if such evidence were to be admitted, the jury ought to have been given a warning of the dangers of
acting on such evidence similar to that which would have been given if the boy had given evidence, and
ought not to have been permitted by the trial Judge to regard the evidence as positive evidence of
identification equal in quality to that given by the witnesses who had given evidence on oath.

Criminal Appeal.

Application for leave to appeal against conviction and sentence.

The applicant, Dominic Casey, was indicted on eight counts relating to assaults committed on the
20th September, 1959, on two boys, both then aged five, David Handyside and Nicholas Healy.
The eight counts consisted of two identical groups of four counts, each group relating to one

(1) Before Maguire CJ, McLoughlin and Teevan JJ.

[1961] IR 264 at 265

boy. The respective counts in each group were (1) attempting to render the boy concerned
insensible, with intent thereby to enable himself indecently to assault the boy, contrary to s 21 of
the Offences against the Person Act, 1861; (2) indecent assault on the boy, being a male person
under the age of fifteen years, contrary to s 62 of that Act; assault on the boy, occasioning him
actual bodily harm, contrary to s 47 of that Act; and (4) common assault.

The applicant was, on the 13th and 14th December, 1960, tried in the Central Criminal Court before
Mr Justice Haugh and a jury, and was convicted on all eight counts. He was sentenced to five
years' penal servitude on the first two of the counts in each group, and to three years' penal
servitude on the latter two, all of the sentences to run concurrently.

The trial Judge refused to grant the applicant a certificate that the case was a fit one for an appeal
to the Court of Criminal Appeal, and the applicant now applied to the Court of Criminal Appeal for
leave to appeal.

The application for leave to appeal was made on the following grounds (inter alia):

"1, That the learned trial Judge failed to direct the jury adequately or at all on the danger of accepting
evidence of visual identification.

"2, That the learned trial Judge failed to direct the jury adequately or at all (a) on the danger of accepting
the evidence of David Handyside who was a child who gave evidence unsworn; (b) on the danger of
accepting the evidence of John Mooney who was a child of tender years; (c) on the danger of accepting the
statement of Nicholas Healy at the identification parade held in the Bridewell having regard to the fact that
he was a child of tender years and incapable of giving evidence or being made subject to
cross-examination.

"3, That the learned trial Judge failed to allow the accused to give evidence in his own way, but
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cross-examined him in the course of his direct evidence.

"4, That the prosecuting counsel misled the jury and the learned trial Judge misdirected the jury as to the
effect of the evidence of the bus conductor as to the place where the accused boarded the bus on which he
travelled to Dun Laoire.

"5, That the learned trial Judge put forward the witness John Mooney as an accurate and truthful witness
and failed to direct the jury as to the danger of accepting a child's

[1961] IR 264 at 266

evidence and failed to direct the jury's attention to the child's failure to observe the accused's clothing at the
identification parade attended by him.

"6, That the evidence in relation to the identification parade held at the Bridewell was inadmissible.

"7, That the complaints and statements made by the children were inadmissible.

"8, That the trial was unsatisfactory."

Two identification parades were referred to in the notice of appeal. The first was at Dun Laoire
Garda Station, where John Mooney, a twelve-year-old boy who had seen the children with a man in
a field shortly prior to the time of the assault was invited to identify the man whom he had seen, and
Richard Nohl, who on investigating cries which he had heard, had seen the children in a nearby
field in a distressed condition subsequent to the assault, and who had given chase to a man whom
he saw taking flight and assumed to be their assailant, was invited to identify the man whom he had
seen and pursued. A week later, a second identification parade was held in the Bride-well, where
the little boys were invited to identify their assailant.

The further facts appear sufficiently from the judgment of the Court of Criminal Appeal, delivered by
Teevan J, post.

DM Bell, Senior Counsel (with him Seamus Sorahan), for the applicant:--

The positive identification of an accused person by one witness only and the opportunities such witness had
for identifying the accused are always matters which require a trial Judge to exercise the greatest care in
warning the jury of the dangers inherent in visual identification: The People (Attorney General) v Hughes (1).
[He also referred to The People (Attorney General) v Martin (2)]. This care is made all the more necessary by
the fact that the defence is an alibi: R v Millichamp (3); and by the tender years of an identifying witness,
whose evidence was not corroborated, coupled with the sensational nature of the case. [He referred to
Attorney-General v O'Sullivan (4)]. This care is further made necessary by the failure of an adult identifying
witness positively to identify the accused. For all these reasons, the learned trial Judge had a duty

(1) 92 ILTR 179.

(2) [1956] IR 22.
(3) 16 Cr App R 83.
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(4) [1930] IR 552.

[1961] IR 264 at 267

specifically to warn the jury as to the weight to be attached to the evidence of what transpired at the
identification parade at Dun Laoire. This the learned trial Judge failed to do.

The learned trial Judge also failed to warn the jury of the danger of accepting the unsworn evidence given by
David Handyside, who had failed to identify the applicant at the identification parade in the Bridewell; he
also presented to the jury, as positive evidence connecting the applicant with the crime, Sergeant Kelly's
evidence that Nicholas Healy, who had not been called to give evidence, had identified the applicant at the
identification parade in the Bridewell as his assailant. While the evidence of the little boy's statement at the
identification parade was admissible, it ought not to have been admitted here, in as much as its prejudicial
effect on the minds of the jury must have been grossly out of proportion to its true evidential value. [He
referred to R v Christie (1)]. If such evidence were to be admitted, the trial Judge ought to have warned the
jury that the evidence was admissible only as showing the applicant's reaction to the charge made against
him, and not as evidence of identification: R v Christie (1).

The learned Judge further misdirected the jury in directing them that the evidence of the bus conductor was
irreconcilable with the applicant's own account of his movements; the conductor's evidence as to the point at
which the applicant entered the bus did not go further than to raise a doubt as to the accuracy of such
account.

The interventions of the learned trial Judge in the course of the applicant's own evidence were so excessive
as to be be in the nature of a cross-examination and to deprive the applicant of his statutory right to give his
own account of his alibi in his own way.

JA D'Arcy, Senior Counsel (with him AJ Hederman), for the Attorney General:--

Many of the questions asked by the trial Judge in the course of the applicant's evidence were in such terms
as "What happened then?", thus constituting a clear invitation to applicant to say what he had to say in the
way in which he wanted to say it; the remaining questions asked by the trial Judge were designed to clarify
points previously mentioned in evidence.

There is no authority for the proposition that the sworn evidence of a child of tender years, who is not an
accomplice, must be corroborated. That proposition is adumbrated

(1) [1914] AC 545.

[1961] IR 264 at 268

in the 1951 edition of Sandes' Criminal Law, at p 135, but is not fully borne out by any of the cases there
referred to in support of it. The phrase, "a child of tender years," is not defined by the Children Act, 1908, as
Kennedy CJ pointed out in Attorney-General v O'Sullivan (1), but is not, in any case, applicable to a boy of
twelve like the witness, John Mooney, whose evidence is, in any event, corroborated in most material
particulars.

There is no rule of law requiring a trial Judge to warn the jury of the dangers of visual identification, nor is
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there any positive rule of law or practice of general application requiring the holding of an identification
parade when it is sought to have a subject identified: The People (Attorney General) v Martin (2). Here the
applicant was identified by two persons, at a parade to which no exception has been taken, and the
identification of the applicant was supported by circumstantial evidence. The People (Attorney General) v
Hughes (3) is distinguishable, as relating to the identification of the accused by one person only.

The bus conductor's evidence was relevant as conclusively showing, if accepted, the falsity of the alibi given
by the accused.

Mrs Handyside's evidence of her son's account of the incident was properly admitted in evidence, as
evidence of a complaint made by an injured party at the first reasonable opportunity, but was rightly ignored
by the trial Judge as irrelevant to the real issue of the trial, which was not the fact of indecent assault but the
identity of the assailant.

While the trial Judge ought to have warned the jury against attaching undue weight to the evidence
concerning the identification of the applicant by the little boy, Nicholas Healy, such evidence was admissible
as evidence of identification, the dicta to the contrary in R v Christie (4) being no more than obiter. The trial
Judge ought similarly to have warned the jury against attaching undue weight to the evidence of David
Handyside, which was unsworn, but, so far as it went, sufficiently corroborated. [He referred to the Children
Act, 1908, s 30]. It is submitted, however, that these two pieces of evidence were of very minor importance in
the light of the evidence independently in existence pointing to the guilt of the accused.

This evidence was of so coercive a nature as to justify this Court, even if it should hold that there was a
misdirection on the part of the trial Judge, in applying the proviso in s 5 of the Courts of Justice Act, 1928, on
the

(1) [1930] IR 552, at p 556.

(2) [1956] IR 22.
(3) 92 ILTR 179.
(4) [1914] AC 545.

[1961] IR 264 at 269

ground that no miscarriage of justice has actually occurred.

DE Bell, Senior Counsel, in reply:--

In view of the uncertainty of Mr Nohl's identification, the jury might have attached undue importance to the
fact that both little boys had, in different ways, identified the applicant, and ought to have been warned of the
dangers of acting on such identifications, in the light of the fact that neither identification had been made on
oath.

The secondary evidence of the child's identification admitted here was calculated to have an even greater
disproportionate prejudicial effect than that admitted in R v Christie (1); there the evidence was of a
spontaneous identification, while here it relates to an identification made after the little boy and his suspected
assailant had been brought together by design by the Gardai.
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Cur adv vult

The judgment of the Court was read by Teevan J.

31 July 1961

TEEVAN J:--

The applicant, Dominic Casey, was indicted at the Central Criminal Court, on the 13th December, 1960, on
eight counts. On count no 1 he was charged with attempting to render David Handyside, a young boy,
insensible, unconscious, etc, for purposes of indecency contrary to s 21 of the Offences against the Person
Act, 1861. Count no 2 was for indecent assault of the same boy (s 62); count no 3 charged the offence of
assault occasioning bodily harm to the same boy (s 47); count no 4 was for common assault on the same
victim; counts nos 5, 6, 7, and 8 were for the like several offences committed on another young boy, Nicholas
Healy.

The accused pleaded not guilty to all offences and conducted his own defence. He was convicted on all
counts and sentenced to five years penal servitude on counts nos 1, 2, 5, and 6 and three years on counts
nos 3, 4, 7, and 8, all sentences to run concurrently.

The prisoner's application for a certificate for leave to appeal was refused by the trial Judge and he now
applies to this Court for leave to appeal.

That the two young boys, the victims of the several counts in each series, were seriously assaulted and
subjected to indecency is beyond dispute and was not challenged. The sole issue at the trial was the identity
of the prisoner as their assailant.

(1) [1914] AC 545.

[1961] IR 264 at 270

The main facts were that David Handyside, a boy then of some six years, left his parents' house after tea at
about 6.45 pm on Sunday, the 20th September, 1959, to play with the other child, Nicholas Healy, His
mother next saw him in the house of Mr Richard Nohl, a considerable distance away, at about 8.50 pm. He
was then unconscious, was injured in the hands, on the left temple and legs. He was without his trousers.
With him in the same house was his young companion, Nicholas (or as he is called in his home, "Noelly")
Healy. He too was injured. He, also aged about six years, had left his home to play with David Handyside.
When his mother next saw him, his trousers were "all open" and his neck was "all tore." The injuries
sustained by the two boys were described at the trial in more detail by Doctor William Ryan. It is unnecessary
to describe them here beyond saying that they disclosed evidence of attempts at strangulation. The doctor
described David Handyside as an intelligent boy for his years.

Richard Nohl was viewing a television programme in his house, No 19 Avondale Crescent, Killiney, when at
about 8.30 pm on the same Sunday he heard a loud commotion in a field at the back of his house--cries for
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help and screaming. The field is part of the grounds of a convent. Mr Nohl went there immediately, found the
two boys lying face downwards and in obvious distress. It was dark. He had with him a torch. He also saw
the figure of a man in flight across the field, running in the direction of the convent. He remained with the
boys (one of whom was without Ms trousers) until his wife arrived and took them in charge. Mr Nohl then
started in pursuit of the man. For that purpose he returned to his house, took his motor car and drove to the
convent gate. There he saw a man leaving the direction of the convent gate entrance. The man returned to
the gate at the approach of the car, climbed over it, and was in the act of descending on the inside when Mr
Nohl essayed to ram the gate with his motor car, thinking it would fly open on impact. It didn't: it was secured
by chain and padlock. The man had meanwhile dropped to the ground on the other side, where squatting,
face on to the motor car, Mr Nohl had a view of his face in the headlights. The man escaped. Later on, in an
identification parade, Mr Nohl identified the prisoner as the man he had endeavoured to capture at the
convent grounds. On the occasion of the identification parade Mr Nohl, while picking out the prisoner from
the other men on parade as the man he had endeavoured to capture, said he was not 100 per cent certain,
but in giving evidence at the trial

[1961] IR 264 at 271

said he was certain in his identification. He explained that although he was certain in his identification at the
parade he had hesitated to say so at the time because he was afraid of some action being taken against him.

At the trial the other evidence of identification was that of John Moohey, a boy of some twelve years, who
said in evidence that he had seen the two boys, David Handyside and Nicholas Healy, walking across a field
with a man between them. This man he identified as the prisoner. He also had picked out the prisoner at an
identification parade. The witness had gone to the field at about 7.30 pm, hoping to meet companions. He
saw a man standing inside the boundary wall. Later, as he was returning to the road to leave the field, he
saw the same man with the two boys, Nicholas Healy and David Handyside. The three were walking towards
a cornfield. (This was in the direction of the convent grounds, as was otherwise established). The man was in
the middle and was holding a hand of either boy. That was at about 7.45 pm. The witness gave evidence of
his identifying the prisoner in a parade. He was asked:--"What were you shown" (at the Barracks)?

Answer;--"Men in a line' and one of the detectives asked me to pick out the man I saw."

Q:--"And what did you do?"

Answer:--"I looked at the man and I went along and I picked him out." Asked whether he was dressed the
same or different the witness said:--"He hadn't got the tweed coat on anyway." The witness said that on
recognising the man he said:--"This is the man I saw in the field." He again identified the prisoner in the dock
as the man.

The prisoner's movements up to about a quarter or twenty past seven were indisputably accounted for. At
about that time he parted company with a Miss Anne Snailes when they alighted from a bus near the
entrance to the field to which the children had gone to play. Miss Snailes walked on home. She saw the
prisoner cross over the road and go into the field--that is the same field to which the children resorted and in
which John Mooney saw a man with the two boys. Miss Snailes further said she saw the prisoner standing
just inside the wall. He was wearing a bright oatmeal-coloured overcoat. She also saw "a lot of children
playing there." She saw the two boys, David Handyside and Nicholas Healy (whom she knew). Prior to this
the prisoner had had a number of drinks in various places in Dun Laoire.

If Miss Snailes' evidence was accepted by the jury it

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[1961] IR 264 at 272

placed the prisoner at and within the entrance to the field where the little boys went to play. He was there at
about 7.15 or 7.20 pm. His identification there by Miss Snailes, with whom he was acquainted, was not
challenged by the accused in his cross-examination of her. In his evidence, however, he did suggest that she
might have been mistaken in her observation of him as being, inside the wall in the field. There appeared to
have been some vague arrangement for Miss Snailes and the prisoner meeting again after she had gone to
her house. She returned ten minutes later to the place where she had parted with the prisoner but he was
not there. She did not see him again that night.

The prosecution established that at about 9.25 pm the prisoner boarded a bus near the same place and
travelled on it to Dun Laoire. This the prisoner admitted. Where precisely he boarded, or may have boarded,
this bus was seriously in dispute and while this is not of consequence to his opportunity for committing the
crime, or to his identification, importance is now attached to it by his counsel because, it is submitted, it was
made an issue of importance by the trial Judge concerning the credibility of the prisoner's accounts of his
movements after parting with Miss Snailes. In any event, thenceforward the movements of the prisoner are
not of consequence to the main issue.

The prisoner's own account of his movements in the critical interval between 7.15 and 9.25 pm or
thereabouts was that having arranged to wait for Miss Snailes at O'Toole's shop in Sallynoggin he did not do
so. He walked up the main Sallynoggin Road and went up to the church and back to his own home. He did
not meet anyone he knew but there were many people about. He did not speak to any boys. When he got
home there was no one there except his brother-in-law's children and a few of the neighbouring children. He
sat down for a while, then had a wash and went out. He had spent about half an hour in the house. He then
walked to Dunmore Cross to see if Miss Snailes would be there. He did not see her. He then got the bus "at
the top of the hill" and travelled on it to the Adelphi Cinema in Dun Laoire.

It will be observed that the evidence falls under three heads, viz, 1, that which leads up to the point where
the accused is identified as being the man who picked up the two boys in the field near the main road; 2, the
evidence so far as it went of one of the boys as to what occurred after they went to play in the field; 3, the
movements of the accused after the alleged crime was committed.

[1961] IR 264 at 273

That under the first and third heads is circumstantial evidence. Only the evidence of the boy, David
Handyside, is direct testimony. Because it was the evidence of a child of tender years a warning to the jury
that it required corroboration by some other material evidence implicating the accused was necessary under
the first proviso of s 30 of the Children's Act, 1908.

The grounds of the application for leave to appeal (as now stated and added to by leave) are:--1, that the
learned trial Judge failed to direct the jury adequately, or at all, on the danger of accepting evidence of visual
identification;

2, That the learned trial Judge failed to direct the jury adequately, or at all (a) on the danger of accepting the
evidence of David Handyside who was a child who gave unsworn evidence; (b) on the danger of accepting
the evidence of John Mooney who was a child of tender years; (c) on the danger of accepting the statement
of Nicholas Healy at an identification parade having regard to the fact that he was a child of tender years
and incapable of giving evidence or being made subject to cross-examination.
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3, That the learned trial Judge failed to allow the accused to give his evidence in his own way but
cross-examined him in the course of his direct evidence.

4, That prosecuting counsel misled the jury and the learned trial Judge misdirected the jury as to the effect of
the evidence of the bus conductor as to the place where accused boarded the bus on which he travelled to
Dun Laoire.

5, That the learned trial Judge put forward the witness, John Mooney, as an accurate and truthful witness
and failed to direct the jury as to the danger of accepting a child's evidence and failed to direct the jury's
attention to the child's failure to observe the accused's clothing at the identification parade attended by him.

6, That the evidence in relation to the identification parade held at the Bridewell was inadmissible.

7, That the complaints and statements made by the children were inadmissible.

8, That the trial was unsatisfactory.

The first and second grounds may be taken together. The prosecution case did not rest exclusively on what
has been termed "visual identification" and much of Mr Bell's argument under these headings is accordingly
misplaced. It would be apposite in a case where the evidence connecting the accused with the crime
charged was confined

[1961] IR 264 at 274

to the visual identification of the accused by a person to whom he was a stranger. Here the evidence of a
witness to whom the prisoner was well known places him in the field where the boys had gone to play (and
who also were seen by the witness) at a time which would have permitted the prisoner to lure the boy3 to the
convent grounds, commit the crime, return and catch the 9.25 pm bus. It was however for the jury to say
whether they accepted the accused's own account of his movements during that interval. It is contended that
undue stress was laid by the learned trial Judge on further evidence of identification the subject of these
grounds, in a way calculated to lead the jury to accept it as positive and unimpeachable,

David Handyside, one of the victims, having been found by the Judge unfit to be sworn by reason of his
tender years, gave some unsworn evidence. He told of going to the field and playing there with the other boy,
Nicholas Healy. He was unable to tell or remember the incidents thereafter, or what happened to him. Thus
far, his evidence being of no importance, neglect of the trial Judge to warn the jury as to the nature and
infirmity of such unsworn evidence as required by statute would be of no consequence and could not vitiate
the trial. But to one question--"Who talked to you" (ie, at the field)--the boy answered:--"Young Casey." This
might well be, and in all probability was, taken to mean the accused, Dominic Casey, although the latter is a
man of some 26 years. The evidence, such as it was, of David Handyside was not referred to by the learned
trial Judge in his, charge. Mr Bell submits that it is rendered important by certain hearsay evidence given by
the boy's mother--the admission of which evidence as such he does not attack. She said in her evidence that
the day following the crime she questioned David about the incident and that he had told her a man brought
him to the field- and told him to keep walking and he went into the field. There were cows in it. He (the man)
said:--"There are cows in this field, we cannot keep in this field we will keep moving," and when they got to
the field where the tree was, the man said:--"Take off your trousers," and, Mrs Handyside continued, the child
got nervous and he didn't take off his trousers. He told him he was going to strangle him. Although Mr Bell
did not raise the point, this Court is of opinion that the mother's evidence of the description which her son,
David, gave her of his experience in the field was inadmissible. Although the name of the accused was not
mentioned it contained the statement that a man had taken him into the field and
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[1961] IR 264 at 275

described what he had said to him, including the statement that he told him he was going to strangle him.
When there is linked with this statement his evidence that young Casey, whom the jury would clearly
understand to be the accused, talked to him in the field, it provided to the lay mind (unaccompanied as it was
by any direction as to its legal nature and quality) direct--and the only direct--evidence of the commission of
the crime and that the accused committed it. It was quite probable that the jury would accept this evidence of
itself to be sufficient to justify a verdict of guilty. The boy had, however, failed to identify the accused at the
identification parade, nor did he identify the accused at the trial. Even if the mother's story of what her son
told her was admissible it seems clear that the jury should have been warned of the danger of accepting
without corroboration the boy's evidence because, first of all, it was unsworn and, secondly, because of his
failure to identify the accused either at the identification parade or in Court.

As to the evidence of John Mooney, Mr Bell did not press his objection. John Mooney was found to be a
competent witness, gave evidence on oath, and the objection" that his age (twelve years) was a
circumstance calling for a warning to the jury to exercise special care in accepting his evidence is
groundless. Objection to the Judge's treatment of this witness was taken on another ground which will be
dealt with later.

In this group of objections the most seriously pressed relate to the manner in which evidence was given of
identification of the accused at an identification parade by the boy, Nicholas Healy. Nicholas Healy was not
tendered as a witness at the trial. No reason was given for this. Evidence was given by Detective Sergeant
Maurice Kelly of arranging a parade of men at the Bridewell. No exception has been taken to the array
which, indeed, was arranged to the requirements of the accused's solicitor. The boy, David Handyside, was
brought in. He failed to identify any of the men. Then Nicholas Healy was brought in. The detective sergeant
stated in his evidence that the boy looked at the parade and he instantly pointed to Casey (the prisoner). He
was asked to go and put his hand on him and he went over and put his hand on Casey, and said:--"He is the
man I saw in the field." He (the boy Healy) was asked where did he see him, and replied:--"In the field."
Casey made no comment. He remained silent.

The learned trial Judge charged the jury on this evidence in the following words:--"The Handyside child was
brought

[1961] IR 264 at 276

in and he failed to recognise anybody. The next was young Healy who came in and I think without long delay
picked out the accused as the man he saw in the field. That is positive evidence." What it was positive
evidence of, the learned Judge did not explain and the jury would most likely take it as positive evidence of
identification by the boy, Healy, of the accused as the man who accosted and assaulted the two boys. This is
made the subject of the two-fold objection, firstly, that the identifying person did not give evidence; secondly,
that, while admissible evidence of the fact of identification, it is not evidence that the identifying person
believes the person identified to have been the criminal. Reliance was placed on R v Christie (1). Christie's
Case (1) differs from the present in that there the boy victim gave (unsworn) evidence of the facts of the
crime, but resembles the present in that the boy victim did not give evidence of the fact of previous
identification. A difficulty arises in applying the case where the evidence of prior identification stands alone.
In Christie's Case (1) the hearsay witness gave evidence not alone of the identification by the boy but also of
the facts of the crime as stated by the boy in the accused's presence at the time of identification. One thing is
clear, that such evidence (ie, evidence by a person of another's identification) is admissible, but subject to
two vital considerations. Firstly, that as primary evidence it is no more than evidence that on a prior occasion
the person confronted was identified by the other. As against the accused person it is not evidence of the
fact that he was the guilty party. Almost invariably such evidence is preceded, or followed, at the trial by the
sworn testimony of the identifying person as to the fact of the prior identification. In such cases it is clearly
admissible (and this is conceded by Mr Bell) for the reasons and purpose stated by Viscount Haldane LC in
Christie's Case (2). But Mr Bell contends that when the person making a prior identification of the accused as
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the guilty party is not called as a witness and so gives no evidence of his prior identification, the evidence of
bystanders as to the fact of such prior identification is inadmissible, and he relies on Christie's Case (1) in
support of his contention.

Christie's Case (1) was mainly concerned with the question whether a statement made in the hearing of an
accused person may be given as evidence even though he does not admit the truth of any part of it. The
view taken was that such a statement is admissible. The Judges went on to say, however, that a practice
had been followed by judges

(1) [1914] AC 545.

(2) [1914] AC 545, at pp 550, 551.

[1961] IR 264 at 277

presiding at criminal trials if in their opinion the evidential value of such statement was slight and its
prejudicial effect upon the accused might be very great of suggesting to the prosecution that it be not put in
evidence. That this rule of prudence and discretion had become so integral a part of the criminal law as to
have acquired the full force of law was the view expressed by three of the Law Lords in their speeches.
Although it is true that at the trial of Christie evidence of the statement of the boy in the hearing of the
accused was not allowed until the boy had given evidence and identified the accused in Court, the
proposition for which Mr Bell contends was not laid down. It is true, that Lord Moulton, at p 558,
said:--"Identification is an act of the mind, and the primary evidence of what was passing in the mind of a
man is his own testimony, where it can be obtained. It would be very dangerous to allow evidence to be
given of a man's words and actions, in order to show by this extrinsic evidence that he identified the prisoner,
if he was capable of being called as a witness and was not called to prove by direct evidence that he had
thus identified him. Such a mode of proving identification would, in my opinion, be to use secondary evidence
where primary evidence was obtainable, and this is contrary to the spirit of the English rules of evidence."

This expression of opinion was, however, obiter, as the boy in the case had given evidence and identified the
accused in Court and the evidence of the act of identification was not objected to. In a case such as this,
where the boy is not called and there is nothing to show that he was incapable of giving evidence, the Court
is of opinion that it was extremely dangerous to admit the evidence. This Court is, furthermore, of opinion
that the fact that the boy did not give evidence, and in particular did not identify the accused in Court,
seriously lessened the value of the evidence of what he did and said at the identification parade. This
evidence may, however, have been very prejudicial to the accused. In the circumstances of this case, before
deciding to admit the evidence of what the boy, Healy, said at the identification parade, the trial Judge
should have considered whether he should not follow the practice so clearly approved of in Christie's Case
(1). Instead he took quite a different line to which very strong objection is taken by Mr Bell. He contends that
the learned Judge's direction as to the value of the evidence was ambiguous and might be seriously
misleading. The trial Judge told the jury that the Healy boy's evidence was positive evidence of

(1) [1914] AC 645.

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[1961] IR 264 at 278

identification, that is to say (as it might be understood by a lay man), positive evidence, against the accused
of his having been the person who committed the crime. This was all the more vital in that the sole issue was
that of identification of the offender. If it were found impossible, or inexpedient, to call the young boy, then on
the facts of this present case this evidence ought not to have been presented to the jury in the guise in which
it was here presented by the trial Judge in his charge. Later in his charge the trial Judge said to the
jury:--"Consider the evidence of the boy, John Mooney. Consider the evidence of the witness, Mr Nohl.
Consider the evidence of little Healy at the identification at the Bridewell. Consider all these matters very
carefully." Put in this way, it might suggest to the mind of a juryman that the evidence relating to Nicholas
Healy's identification was of equal value to that of John Mooney and Mr Nohl. Furthermore, Mr Nohl had said
that he was not 100 per cent certain of his identification. He explained this by saying that at the time he was
nervous as to the result it might have for him to be positive of his identification at the parade and he was
positive in the witness box. In view of the fact that the man he saw on the road and at the gate was not
wearing an overcoat it would have been proper to draw the attention of the jury to these two matters.

Already there was some inconsistency in the versions of the identification--by the other witness, John
Mooney--an inconsistency which was not necessarily destructive and was capable of explanation, yet one
which might have inclined the jury towards doubting it. Any advantage to the accused in that might well have
been neutralised by the evidence as to Nicholas Healy's outside identification.

Furthermore, this evidence, if put forward as evidence connecting the accused with the crime--and such was
the character in which it was put to the jury--was hearsay evidence. As such, Mr D'Arcy, for the Attorney
General, concedes that it called for explanation and advice to the jury as to its nature, purpose, and
shortcomings. It offended, when presented as it was, the "best evidence" rule.

In reply to these objections, Mr D'Arcy contends that, looking at the background and the effect of all the other
evidence, the objections lose the significance they may appear to have when viewed in isolation. As against
this, however, must be set Mr Bell's general argument that the whole issue was identification, as at no point
was the accused's alibi admitted to probability.

The next ground of objection deals with the prisoner's

[1961] IR 264 at 279

own evidence. He elected to give sworn evidence and it is complained that he was not allowed to give his
evidence in his own way but was unnecessarily questioned by the Judge, these questions often partaking of
the quality of cross-examination. It is not contended that the presiding Judge may not examine an accused. It
may often, indeed, be his duty to ask such questions in the interests of justice. But here it is contended there
was an unnecessary examination. It does appear that virtually the entire of the applicant V evidence was
elicited by questions from the learned trial Judge. It is, however, difficult to evaluate the effect of this
examination of the accused by the Judge at the trial. In fact it may have been of assistance to the accused in
presenting his account in a complete and orderly sequence and this Court is unable to say that the accused
was not given a sufficient opportunity to give his evidence in his own way or was prejudiced in making his
defence.

The evidence as to the place where the applicant boarded the bus after the time when the crime is known to
have been committed, or rather the conflict between the applicant's evidence and that of the bus conductor,
was of some importance to the credibility of the prisoner's account of his movements during the critical
period, but not of much intrinsic importance. No point would have been taken on it were it not that the
learned trial Judge, it is contended, raised "it to the status of a substantial issue. Then, argues Mr Bell, it
 Page 13

became of greater importance on the credibility of the prisoner. It was possible, even on the evidence of the
conductor, for the jury to find that the prisoner may have boarded the bus at the place he said he did. He
made such a case. This was not put to the jury and the evidence of the conductor was treated, if believed, as
absolutely excluding the prisoner's version of this episode. Taken by itself this ground is not sufficiently
strong to warrant interference with the verdict. The manner in which the evidence was dealt with was not
wholly satisfactory.

The prisoner in his account given to the investigating gardai had stated that he returned to Dunmore Cross
where he had left Miss Snailes. In the meantime he had gone home, spent some time there, having at first
decided to remain at home, but, according to his evidence at the trial, washed and left again with the
intention of going back to Dun Laoire. He discarded his overcoat and left without it--a fact of importance to
the prosecution's case." He then walked to Dunmore Cross, his explanation for that being the possibility of
there again meeting Miss Snailes.

[1961] IR 264 at 280

It remains to say that the sweeping arguments of Mr Bell concerning what is termed, rather unsatisfactorily,
"visual identification" are not accepted. There is no authority for the proposition advanced, which if correct,
would amount to pronouncing that every instance of identification of an accused' person by sight must be
accompanied by warnings of danger. This general ground of objection fails.

The Court, however, is of opinion that the following grounds have been established, viz, 1, that the evidence
of Mrs Handyside of the statement made to her by her son should not have been admitted; 2, that a warning
should have been given to the fury with regard to the unsworn testimony of David Handyside; 3, that in view
of the fact that the boy, Nicholas Healy, did not give evidence, it should have been considered whether
evidence of his acts and words at the identification parade should have been admitted and even if it were
admissible that a warning should have been given to the jury on the same lines as would have been required
had the boy given evidence at the trial; 4, that there was a misdirection as regards the nature and effect of
this evidence.

Mr D'Arcy, while conceding that the warning should have been given in the instances referred to, urges the
Court to apply the proviso to s 5 of the Courts of Justice Act, 1928, that is, to dismiss the appeal although the
grounds of objection above-mentioned are resolved in favour of the applicant. After much consideration the
Court feels itself unable to do this. Undoubtedly the prosecution made a very strong case against the
accused. The Court, however, feels that the objections which it considers to have been sustained are so
serious that they render the trial unsatisfactory. Accordingly the verdict must be set aside. A new trial,
however, will be ordered.

Solicitor for the applicant: David Bell.

Solicitor for the Attorney General: The Chief State Solicitor.

EP DE B

[1961] IR 264 at 281