The Court of Appeal has dismissed Duku Popovici’s appeal against his conviction for aggravated burglary, rejecting three challenges to the trial judge’s charge to the jury. The judgment dealt only with the conviction appeal, not the appeal against sentence.
Popovici was convicted by a majority verdict after a three-day trial in Clonmel Circuit Court. He received a 12-year prison sentence, with the final two years suspended for five years. The Court of Appeal judgment, delivered on 20 December 2016, records that the sentence was not under consideration in this ruling.
The prosecution case was that two men broke into the Quigleys’ home at Tullohea, South Lodge, Carrick-on-Suir, at about 4.40am on 26 September 2013. James Quigley testified that he found the men in the kitchen and that Popovici threatened him with an adjustable spanner. A scuffle followed, and Quigley said the other man struck him with an iron bar. Popovici was detained until gardaí arrived; the second man escaped and was arrested later that day.
Investigators found a wrench and lock on an outside windowsill and a rucksack containing gloves beside Popovici. The judgment says no forensic evidence linked him to the inside of the house. At trial, the defence position was that the encounter had happened outside and Popovici had never entered the house.
On appeal, Popovici argued that the trial judge wrongly told jurors it would be “perverse” to acquit him of attempted burglary, repeated the prosecution case in the jury charge, and failed to highlight the lack of forensic evidence linking him to the house’s interior. The Director of Public Prosecutions argued that the judge had not directed a particular verdict and had fairly presented the issues.
The Court of Appeal said the trial judge had immediately reminded jurors that the verdict and the facts were for them to decide. It found he was entitled to express his view in the circumstances, while noting that judges generally should avoid expressing an opinion on the verdict. That ground of appeal failed.
The court also rejected the challenges to the charge. It said the judge had referred to the defence position and told jurors that no physical evidence had been found inside the house. The jury’s questions about the conservatory and where the scuffle took place showed it was alert to the defence case, the court said. It concluded there was no unfairness and dismissed the appeal against conviction.