The Court of Appeal has allowed Robert Kane’s appeal against his 2017 convictions for burglary and criminal damage, finding that errors in the trial judge’s directions to the jury created a risk of unfairness.
In a judgment delivered on 8 May 2019, the court said the judge’s treatment of the Garda interview may have left jurors with the impression that Kane was expected to make admissions. The court also found that the judge’s summary of the defence case omitted evidence about a man seen near the premises shortly before Gardaí arrived.
Kane had been convicted by a jury of burglary and damaging property at solicitor Patrick Morrisey’s offices at 22 Crofton Road, Dún Laoghaire. The prosecution case was that he entered as a trespasser intending to commit theft and broke a glass panel to gain access. He was found inside the offices by Gardaí, who said the room appeared ransacked and that he had a screwdriver and metal rod. The defence did not call evidence.
At trial, the jury heard that Kane said he was homeless and looking for somewhere to sleep, and denied committing burglary. A dressmaker working on the floor below testified that he saw a person wearing a green khaki hooded jacket pass the shop door while he waited for Gardaí. The court said the defence relied on that sighting as a possible basis for doubt about whether another intruder had entered the offices. The trial judge did not mention it in his summary of the defence case.
The appeal court also examined the Garda station interview. Kane had asked for his solicitor to be present and did not answer the questions put to him. The trial judge told the jury there had been no interview and repeatedly stressed that no admissions had been made. The appeal court said that was not an accurate description: an interview had taken place, although nothing of evidential value resulted. Jurors needed to understand that Kane had the right not to answer and that no adverse inference could be drawn from his silence.
The court described the issue concerning the interview direction as finely balanced, but held that it had the potential to mislead or confuse the jury. It also found that omitting the jacketed man’s sighting created unfairness in the summation of the defence case. The court said it was not persuaded that the trial judge had acted deliberately unfairly; it considered the omission an oversight.
On those grounds, the Court of Appeal allowed the appeal. The judgment does not state any further order or disposition beyond allowing it.