The Court of Appeal has quashed Trevor O’Sullivan’s robbery conviction after finding that a trial judge’s mistaken account of a garda’s evidence left the jury’s verdict unsafe. The court did not decide whether O’Sullivan should face a retrial; it said it would hear submissions on that issue.
O’Sullivan had been convicted by a jury at Cork Circuit Criminal Court on 17 November 2016 of one count of robbery. He was sentenced to seven years in prison, with the final 18 months suspended for two years on conditions, and appealed the conviction.
The case arose from an attack on Viron Kaja on Spring Lane in Cork on 24 May 2016. Kaja was robbed of a silver cigarette case and a €50 note. He later identified O’Sullivan and Thomas O’Sullivan outside a coffee shop. He was certain about Thomas O’Sullivan but less certain about the appellant. The cigarette case was found on Thomas O’Sullivan, and the €50 note was found on the appellant.
The defence denied that O’Sullivan took part. Thomas O’Sullivan admitted robbing Kaja but said his brother was not with him. O’Sullivan and his wife, Kathy Nugent, said he was with her at the time.
The appeal challenged, among other matters, the admission of Kaja’s identification and the trial judge’s refusal to stop the case after the prosecution evidence. The Court of Appeal rejected those two grounds, agreeing that the identification evidence could be left to the jury in the circumstances and that the trial judge’s decisions on those issues were correct.
The court allowed a separate ground concerning the judge’s charge to the jury. Before trial, it had been agreed that the jury would not be told that Detective Garda O’Donoghue had known the appellant and his brother before the case. The detective told the jury that he “now” knew the men. But in summarising the evidence, the trial judge said the detective had described seeing two men “who he knew” to be the brothers.
The Court of Appeal said that wording could suggest the men were known to gardaí before the robbery and could imply prior criminality. Although the judge gave general directions that jurors should decide the case from the evidence, he did not correct the specific mistake after it was raised. The court said a correction could readily have been made and that leaving the error unaddressed made an otherwise “impeccable” charge flawed in an important respect.
The court therefore quashed the jury’s verdict as unsafe and allowed that ground of appeal. It reserved the question of a retrial for further submissions.