Custody Procedure

Cases

People (DPP) v McFadden

[2003] 2 I.L.R.M. 201

Keane J
The applicant was convicted on 30 July 2001 by the Special Criminal Court of being in possession of information of such a nature that it was likely to be useful in the commission by members of an unlawful organisation of a serious offence, contrary to s. 8 of the Offences Against the State (Amendment) Act 1998. He was sentenced to a term of four years’ imprisonment and, having been refused leave to appeal, now appeals to this court.

The facts are relatively straightforward. The applicant was driving a car in the town of Donegal on 15 April 2001 when he was stopped by a member of the gardaí. He was asked to provide a specimen of his breath for measurement by a device called the alcometer. Garda McCready said in evidence that, as a result of the reading, he formed the opinion that the applicant was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. He accordingly arrested him under s. 49(8) of the Road Traffic Act 1961 and brought him to the Garda station in the town. No issue arises in this case as to the validity of that arrest and the subsequent detention of the applicant.

On his arrival at the Garda station the applicant was handed a form by Garda McHugh, the member in charge, containing a notification of his rights while in custody. Garda McHugh then informed him that he proposed to search him and asked whether the applicant had any objection; the applicant said he did not. He then conducted a body search of the applicant which, he said in evidence, was for the purpose of ensuring that there were no weapons or articles on his person which would harm anybody. During the course of the search, he removed the belt which he was wearing, since that would be something which could be a source of harm to the applicant when he was placed in his cell. In the course of the search, he found a wallet in the back pocket of the applicant’s trousers. The transcript continues as follows:

621 Q. What did you do in relation to the wallet?

A. I searched the wallet, your honour.

Q. Where were you when you were searching it?

A. I would have returned back to the chair.

Q. What did the accused do?

A. He became very agitated ….

Q. Can you say what you then did?

A. I proceeded to search the wallet.

Q. Why?

A. First of all, he was not from the jurisdiction and I wasn’t aware of who he was, it was to establish his identity, if he had any information that would relate to his identity and his correct address. He wasn’t known to me ….

641 Q. Can you describe precisely the behaviour of the prisoner as you searched the wallet and thereafter?

A. As I searched the wallet, he told me ‘don’t go near the wallet’ and he became very agitated.

In addition to some plastic cards, Garda McHugh found a small piece of paper tightly wrapped up in the wallet. Garda McCready, who was also present at this juncture, said that, as Garda McHugh unwrapped the paper, the applicant lunged forward in an attempt to get the paper.

The paper on examination was found to contain the name and address of a superintendent in what was then the Royal Ulster Constabulary, together with details of his wife and family, his car and registration number and another car and the place where his wife worked. It also recorded the fact that the superintendent was a Catholic and attended a particular chapel for Mass on Sundays.

Counsel for the applicant objected to the admissibility of this document on the ground that it had been obtained as the result of an unlawful search by Garda McHugh. The court of trial was satisfied that it was admissible and, as already noted, convicted the applicant of the offence created by s. 8 of the Offences Against the State (Amendment) Act 1998. The applicant did not give evidence.

The sole ground of appeal argued on behalf of the applicant was that the ruling of the court of trial that the document found as a result of the search of the applicant’s wallet by Garda McBride was admissible was erroneous in point of law.

On behalf of the applicant, Mr Sammon SC submitted that where a consent to a search by the gardaí is refused or, having been given at the outset, is withdrawn, such a search may only proceed if the gardaí are

(a) authorised to carry out the search and
(b) inform the applicant of the authority for the search.
If neither of these requirements are met, he submitted, the search in question is an unlawful violation of the person’s constitutional right to privacy and nothing obtained as a result of the search is admissible in evidence. He cited in support the decision of this court in People (DPP) v. O’Donnell [1995] 3 IR 551 and of the High Court in Kennedy v. Ireland [1987] IR 587.

On behalf of the respondent, Mr Paul O’Higgins SC, submitted that the evidence established that the wallet was obtained by Garda McHugh in the course of a search being carried out by him with the consent of the applicant and, accordingly, it was not necessary for the gardaí in this case to invoke a statutory or other power of search or to inform the person of the reason for the search. He further submitted that, in any event, the gardaí enjoyed a common law power to search a person who was being lawfully detained by them. In particular, the court of trial was entitled to accept the reason given by Garda McHugh for continuing of the search of the wallet after the applicant had objected, i.e., that he wished to check whether it might contain any evidence in confirmation of the information furnished by him as to his identity and address.

The law was stated as follows by O’Hanlon J giving the judgment of this court in People (DPP) v. O’Donnell at p. 557:

It is only when the co-operation of the citizen is withdrawn and it is necessary to fall back on powers of compulsion under common law or under statute, that the necessity arises for the gardaí to invoke such powers and at that stage to inform the person against whom it is sought to exercise them of the legal justification for any interference with his or her rights under the Constitution.

The evidence in this case established beyond doubt that the search of the applicant was conducted at the outset with his consent. It is also clear, however, that he never consented to any examination of the contents of his wallet or to the retention by the gardaí of the document found by them in the wallet and indeed that he objected to the search by Garda McHugh of his wallet. A member of the Garda Síochána cannot engage in such a procedure without the consent of the person whose person, property or effects are being searched unless it is authorised by law.

There can be no doubt as to the power of a police officer who has effected a lawful arrest, to conduct a search of the arrested person’s body and retain objects found in the course of the search, even without a search warrant. That such a power existed in cases of felonies and misdemeanours was made clear by the decision of the exchequer division (Palles CB, Dowse B and Andrews J) in Dillon v. O’Brien (1887) 20 LR Ir 300. In that case, it was said that the power to seize the property was necessary in order to ensure the preservation of material evidence of the guilt or innocence of the detained person for the purpose of his trial. However, in the subsequent English decision of Elias v. Pasmore [1934] 2 KB 164, it was held that the power of the police extended, not merely to property which was evidence relating to the charge on which the arrest was made, but property which was evidence relating to any other criminal charge.

The law in this jurisdiction was stated by O’Keeffe J, speaking for the Supreme Court in Jennings v. Quinn [1968] IR 305 as follows:

In my opinion the public interest requires that the police, when effecting a lawful arrest, may seize, without a search warrant, property in the possession or custody of the person arrested when they believe it necessary to do so to avoid the abstraction or destruction of that property and when that property is:

(a) evidence in support of the criminal charge upon which the arrest is made, or
(b) evidence in support of any other criminal charge against that person then in contemplation, or
(c) reasonably believed to be stolen property or to be property unlawfully in the possession of that person;
and that they may retain such property for use at the trial of the person arrested or of any other person or persons, on any criminal charge in which the property is to be used as evidence in support of the charge or charges; and that thereafter they should return the property to the person from whom it was seized, unless the disposal of the property otherwise has been directed by a court of competent jurisdiction.

The court was also referred to the following statement of the law by Professor Dermot Walsh in Criminal Procedure (at para. 4.7–3):

At common law a member of the Garda Síochána has the power to search a person whom he or she has arrested. The purpose of this search would appear to be to enable the member to take into possession anything found on the person in the nature of a dangerous weapon or which may be used to facilitate his escape from custody or any item which may be of evidentiary value. In most cases, therefore, the search will be confined to a body frisk and examination of the suspect’s outer garments.

The court accepts this as a correct statement of the law in this jurisdiction. In the present case, the court of trial was entitled to accept Garda McHugh’s evidence that he believed that the search would enable him to confirm the identity and address of the applicant and that it was, accordingly, being conducted by him with a view to locating that evidence. It is also clear from Jennings v. Quinn that, where such a search yields evidence in support of any other criminal charge, it may be retained by the police to prevent it being removed or destroyed.

However, although such a search, and the retention of articles coming into the possession of the police as a result of it, without the consent of the person, is authorised at common law without a search warrant, its lawful exercise is subject to one important pre-condition.

The courts have made it clear that a citizen cannot be arrested without being told the reason for the arrest. As Lord Simonds put it in Christie v. Leachinsky [1947] AC 573 at p. 591:

… it is the right of every citizen to be free from arrest unless there is in some other person, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest, that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested?

That dictum has been frequently applied in our courts and in Director of Public Prosecutions v. Rooney [1992] 2 IR 7; [1993] ILRM 61, O’Hanlon J had this to say of its application to the power to conduct a search (at pp. 10/63):

Although less drastic in its effect than a power of arrest, such action on behalf of the police authorities does nevertheless amount to a substantial and significant interference with the liberty of the subject and it appears to me that the same principles which underlie the decision in Christie v. Leachinsky and People (Attorney General) v. White [1947] IR 247 must apply with equal force in this situation also, if the constitutional guarantees of liberty of the person are to be adequately defended and vindicated. Consequently, I would hold that before the power of search given by s. 29 of the Dublin Police Act 1842 already referred to, can now be lawfully exercised, the suspect is entitled to be informed of the nature and description of the statutory power which is being invoked.

A similar view has been taken by the English Court of Appeal: see Brazil v Chief Constable of Surrey [1983] 3 All ER 537.

It is clear from the evidence in this case that the applicant was at no stage told by Garda McHugh why he was being searched or why the contents of his wallet were being examined or informed as to the power, if any, that the garda was relying on to justify the search.

 

The requirements of the common law in this context are given statutory form in Regulation 17(1) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (SI No. 119/1987) made under s. 7 of the Criminal Justice Act 1984, which is as follows:

A member conducting a search of a person in custody shall ensure, so far as practicable, that the person understands the reason for the search and that it is conducted with due respect for the person being searched.

S. 73 of the parent Act provides that:

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

The court of trial were of the view that the test for determining whether this breach of the regulation was of such a nature as to invalidate the search and the discovery of the document was whether it would have been of any practical assistance to the applicant if Garda McHugh had told him that he wished to search the wallet to ascertain whether it contained any information confirmatory of his identity and address. The court said that, even if the applicant had told Garda McHugh that the wallet contained no such corroborative evidence, the latter would not have been obliged to believe him. In these circumstances, the court found that the absence of a specific explanation as to his reason for searching the wallet was not such as to invalidate the search and render inadmissible the evidence of the document.

The court is satisfied that this was not a correct approach in law. It is understandable that the legislature provided that a failure to observe any provision of the regulations would not of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him. As one would expect, the regulations contain detailed requirements as to the treatment of persons in custody, including such matters as the accurate recording of a number of aspects of his detention in documentary form. A failure to observe the requirements of the regulations could clearly in some instances be of so trivial or inconsequential a nature as not to afford a sufficient ground for treating the detention of the person as unlawful or statements made by him inadmissible.

The failure of the garda in this case to give any explanation to the applicant as to why his wallet was being searched, at a stage when it was clear to him that the applicant was objecting to his search of the wallet, could not be regarded as a trivial or inconsequential departure from the regulations. A breach of the fundamental requirement of our law that a police officer who is carrying out a search of a person without his consent informs that person of the legal justification for so interfering with his constitutional rights cannot, in the view of the court, be considered as of such little importance as to justify a departure from the regulation.

It is true that an examination of the contents of a person’s wallet is not as intrusive or demeaning as a so-called strip search. The same, however, could be said of a search of a person’s outer garments and it could not be suggested that such a search could lawfully be carried out without a person’s consent save ‘for a reason recognised by the law of which he or she is informed at the time’.

Since it is clear that the evidence so obtained in breach of the applicant’s constitutional rights was the only evidence on which the conviction was founded, it follows inevitably that it must be quashed.

The court will accordingly treat the application for leave to appeal as the appeal, allow the appeal and substitute for the order of the Special Criminal Court an order quashing the conviction.

People (DPP) v Connolly

[2003] 2 I.R. 1

Hardiman J.
7th May, 2002

On the 13th October, 2000, the accused was convicted by a jury in the Dublin Circuit Criminal Court of one count of entering a dwelling as a trespasser and stealing a video recorder and a playstation, and of a further count of taking possession of a mechanically propelled vehicle from the same dwellinghouse in Saggart, County Dublin. He was acquitted by direction of a third count of entering another dwellinghouse as a trespasser and stealing money. On the 17th October, 2000, he served a notice of application for leave to appeal against both conviction and sentence (three years’ imprisonment). By notice of abandonment dated the 7th December, 2001, he withdrew his application for leave to appeal against sentence. He maintains his application for leave to appeal against conviction.
On the hearing of this appeal it was agreed that the only evidence against the accused was a signed statement in the nature of a confession, which he was alleged to have made whilst in custody pursuant to s. 4 of the Criminal Justice Act 1984.
The six grounds contained in the notice of application raised four substantive matters. First, it is alleged that the statement of the accused should have been excluded as it was taken in unfair circumstances. Secondly, it is claimed that the trial judge improperly commented on the fact that the accused had not given evidence and had stated that there was only one sworn version of events before the jury”thereby implying that the [accused’s] version of events as presented by counsel should be given less weight”.
Thirdly, exception was taken to a passage in the charge where the trial judge invited the attention of the jury to the question of why the members of the gardaí, who witnessed the accused’s signature in his statement, would seek to prosecute him wrongly. Fourthly, objection was taken to the charge in that it allegedly did not contain sufficiently strong or detailed advice to the jury on the weight to be given to the fact that the accused’s statement was uncorroborated.
In relation to the first of these points, the factual complaint was that for the part of the time that the accused was making a statement, only one member of An Garda Síochána, Sergeant Foley, was present. The other member, Detective Garda Higgins, joined them towards the end of the interview and was present while the accused was dictating the final part of his (short) statement and while the statement was read over and signed.
The accused, through counsel, accepted that the arrangements just summarised did not constitute a breach of the custody regulations and that there is no requirement of any nature that two gardaí should be present throughout any interview with a person in custody.
Indeed, the only attempt to regulate the number of gardaí to be present at an interview seems to be directed at avoiding a situation where a detained person might be intimidated by numbers. Paragraph 12(3) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 provides:-
“Not more than two members [of An Garda Síochána] shall question the arrested person at any one time and not more than four members shall he present at any one time during the interview.”
There is no basis on which it can be urged that, as a matter of law, there is any impropriety in questioning a suspect with only one garda present. It is, at most, a matter which might be urged against the reliability of the statement. The court does not propose to interfere with the conviction on this ground.
The factual basis of the second point arises from something apparently said by counsel for the accused when closing his case to the jury. He complained that the issue about the circumstances in which the statement was taken came down to the word of one person against another. That, at least, is what one gathers from what is set out in the trial judge’s charge at Book A, p. 122. No transcript was made of counsel’s address to the jury. This court has already expressed the view that this is an unfortunate omission and a false economy and that a transcript of counsel’s speeches should be made as a matter of routine.
The trial judge commented on this contention in the following way:-
“We only have the word of one. We have not heard of another because he has exercised his rights and is entitled to that. Counsel for the accused has put to the officer, Sergeant Foley, that, as instructed by his client, his position is that the statement was a fabrication. It was already concocted by and drafted by Sergeant Foley before he went into the room and that it was already prepared. In other words, it was not dictated. It was not the words of the accused. You have heard Sergeant Foley. You have heard Detective Garda Higgins. It is a matter, ladies and gentlemen, for you. You have heard the testimony. You have to assess the witnesses. You have to apply your common sense. Having heard them you may ask, can I be satisfied beyond all reasonable doubt that they are telling the truth that this is the accused’s free admission, that it is reliable and (that) you can act on it?”
In the view of this court, there was nothing improper in this portion of the charge. On the contrary, this ground of appeal is based on a fundamental misapprehension. There is no such thing as “the [accused’s] version of events as presented by counsel”, to quote the grounds of appeal. If the accused wished to put a version of events before the jury he could do so only by calling evidence or by giving evidence himself. Counsel is not in a position to put a version of events before the jury for the good and sufficient reason that he was not present when the relevant events occurred and, in any event, is not sworn and open to cross-examination. If one witness gives sworn evidence as to what he says happened and is cross-examined by counsel to the effect that he is not telling the truth, that does not mean that there are two versions of events before the jury, or that it”is one person’s word against another”. Unless and until the accused or some other person gives evidence, and exposes themselves to cross-examination, there is only one version of the facts before the jury, for them to accept if they are satisfied beyond reasonable doubt of its truth, or otherwise to reject.
The form of words apparently used by counsel for the accused was liable to confuse the jury by suggesting that questions put by him at cross-examination should be regarded as the equivalent of his client putting that account in evidence. The trial judge was quite correct to point out that this was not so. There is, of course, no inhibition on a trial judge against commenting on the accused’s failure to give evidence. By s. 1(b) of the Criminal Justice (Evidence) Act 1924, prosecuting counsel may not make such a comment but the judge may, so long as he does so fairly. In fact, in this particular case, the judge, in quite a lengthy passage, emphasised to the jury that they were not to draw any adverse inference from the fact that the accused had not given evidence and stated that there were “many varied and multiple reasons why an accused person might not elect to give evidence” and suggested some that might have applied in this case. It was more than fair to the accused. His additional comments to which exception was taken were directly related to what had been said by counsel for the accused and were entirely appropriate in the light of that.
In a very recent judgment of this court, The People (Director of Public Prosecutions) v. Brazil (Unreported, Court of Criminal Appeal, 22nd March, 2002), the court approved a very similar passage in a charge to a jury where counsel, in his closing speech had said that most of the alleged verbal statements were denied so that the case came down to a swearing match. For precisely the same reasons we would not interfere with the verdict on this ground.
The third ground of appeal relates to a passage in the charge immediately after that quoted above. Having pointed out that the only evidence of the circumstances in which the statement was taken was that of the gardaí, the trial judge summarised what had been put to them by counsel for the accused. Apart from the matters already quoted, it had been suggested that the accused was in an unfit condition to be questioned because of his drug addiction and that, in any event, he was induced to make a statement by being promised that he would be granted bail if he did so, despite his prior record. These matters were denied. The trial judge pointed out quite correctly that the issue revolved around whether they accepted the garda account to be true beyond reasonable doubt and said:-
“Again you have to apply your assessment of the witnesses. Did they strike you as members of An Garda Síochána who are being truthful? Did they strike you as people who would conspire to create a fabrication? To damn a person falsely in the witness box? You have to make your decision. So that is what you are being asked to accept and counsel for the accused has put to you the appalling scenario of the miscarriages of justice that can occur and he has brought you through the stages of all that.”
The judge then discussed the question of what motive might have existed to fabricate a statement:-
“…that would make the two members of An Garda Síochána to put their careers on the line without any hope of reprieve if they were found out to have fabricated a document of this nature simply to have the accused falsely accused and convicted.”
The trial judge also said:-
“I do not believe that it is possible for you to address this any other way than that if you are not happy to act upon the statement, well then I think you have to get into the area of coming to the conclusion that the gardaí were lying. I do not see it as being any other way.”
No objection was taken to this form of words immediately after the delivery of the charge to the jury. This court has already commented on many occasions on the importance of looking to what struck those present at the trial as significant or objectionable in the judge’s charge: see The People (Director of Public Prosecutions) v. Redmond [2001] 2 I.R. 390, where the authorities are summarised.
However, in the written grounds of appeal and in submissions, it is contended that the passage objected to in effect required that an accused person prove a motive on the part of the gardaí that they were making a false claim that the accused had confessed to a crime, and had done so of his own free will.
We do not consider that the trial judge’s comments can be interpreted in this way. The jury had already been fully and properly instructed as to where the onus of proof lay and the passage immediately before that complained of makes it perfectly clear that the whole case comes down to the credibility of these garda witnesses. It would clearly not be proper in all cases, where there was a conflict of evidence, to suggest for that reason only, one side or the other was lying. It appears to us, however, that in the circumstances of this case the gardaí’s denials of what was put to them by counsel for the accused were either true or were knowingly false. There is simply no scope for mistake, misapprehension, misunderstanding or failure of memory. The trial judge was doing no more than drawing the jury’s attention to the realities of the position.
The fourth ground is the one of greatest legal substance. Section 10 of the Criminal Procedure Act 1993 provides:-
“(1) Where at the trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.
(2) It shall not be necessary for a judge to use any particular form of words under this section.”
It is accepted that s. 10 applies to the present case since there was no corroboration of the confession.
At Book A of the transcript, pp. 124 and 125, the trial judge said:-
“Now it is a statement of admission made by [the accused] on the garda case and it is a statement that is unsupported by exterior evidence. There is no other piece of evidence, what is known as corroboration, tending to support it. No forensics were carried out. There was no other property or nothing (sic)else of a physical nature or otherwise tending to link the accused to the statement. That is something that you should bear in mind in applying your considerations to it.”
This passage came immediately after one where the trial judge told the jury that the entire case came down to the statement and said:-
“It is a matter for you, ladies and gentlemen, having assessed the witnesses, having heard what they say, to come to a conclusion and say you are happy to act upon it so that you can be satisfied beyond all reasonable doubt or are not.”
Counsel for the accused emphasised the phrase”due regard”. He said that the judge took a minimalist view of s. 10. He should have mentioned the dangers of convicting on a confession that was uncorroborated. As a minimum, the phrase must import a requirement to explain the desirability of corroboration and the significance of its absence.
Counsel for the prosecutor submitted that s. 10 was very narrow indeed in its phraseology and in particular it made no mention of a need to speak of the dangers of convicting without corroboration, much less any suggestion that it was dangerous to do so. “Due regard” means no more than “sufficient regard”. Counsel for the prosecutor accepted that there was no explanation of the need to have due regard for the absence of corroboration and, of course, that the statement fell within s. 10. She submitted, however, that one must have regard to the history of the section: it was obviously a parliamentary reaction to The People (Director of Public Prosecutions v. Pringle) (No. 1) [1995] 2 I.R. 547, where this Court felt that it was not for it to impose a requirement for any advice to be given in relation to uncorroborated confessions. The legislative reaction to that was to introduce such a requirement, but to do so in narrow terms which conferred a very broad discretion on the trial judge.
Counsel for the prosecutor specifically submitted that there was no analogy between the advice required to be given by s. 10 of the Act of 1993 and the warning required in cases involving visual identification by virtue of the decision of the Supreme Court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33.
The identification warning is too well known to require repetition here and is comprehensively set out on pp. 39 and 40 of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33. The marked features of it, from the point of view of the present case, are firstly that it requires attention to be drawn “in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistake in the case before them and to the necessity of caution”.In other words, the decision requires that the jury be told in specific terms that evidence of this kind, identification, has proved to be unreliable in the past causing miscarriages of justice and that this has been so where there was more than one identifying witness and where all witnesses were honest and had a good chance to observe the person they sought to identify.
The second feature of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 which is relevant is that relating to the phraseology of the warning or advice. At p. 40, Kingsmill Moore J. said:-
“This direction is not meant to be a stereotyped formula. It may be too condensed to be fully appreciated by a jury without some further explanation and the facts of an individual case may require it to be couched in stronger or more ample terms, as when the witness or witnesses had no previous acquaintance with the appearance of the accused or had only an indifferent opportunity for observation. It does, however, contain a minimum warning which should be given in any case which depends on visual identification.”
The court notes, in particular, that the introduction to the passage containing what is now known as the Casey warning states at p. 39 that:-
“We are of opinion that juries as a whole may not be fully aware of the dangers involved in visual identification nor of the considerable number of cases in which such identification has been proved to be erroneous; and also that they may be inclined to attribute too much probative effect to the test of an identification parade.”
It is perhaps to be inferred from the enactment of s. 10 that the legislature was of the view that juries might not be sufficiently aware of the need to have regard to the lack of corroboration in cases where the only evidence is an unsupported confession. In Byrne and Binchy, Annual Review of Irish Law, (1993) it is said at p. 228 that:-
“… the Criminal Procedure Act 1993 contains the legislative reaction to the fallout from recent well publicised cases of miscarriages of justice, including the Guilford Four and Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case.”
This summary seems borne out by the chronology of events prior to the enactment of s. 10. In October, 1989 the Director of Public Prosecutions in England and Wales stated that he would not seek to uphold the convictions of the Guilford Four who were shortly thereafter released by the Court of Appeal, to which the case had been referred by the British Home Secretary. This development led to discussion in this country about the role in criminal law of the uncorroborated confession and the then current law was stated authoritatively in an article by Mr. Paul Carney S.C. in the Irish Times on the 19th October, 1989. Later that month, a Private Member’s Bill, the Criminal Justice Bill 1989, was introduced into Dáil Éireann proposing that independent corroboration of a confession be required, amongst other reforms. In December, 1989 the Minister for Justice established a “committee to inquire into certain aspects of criminal procedure” under the chairmanship of a very experienced criminal lawyer, Judge Frank Martin. In so far as is relevant to the current discussion, this committee was asked at p. 2,”given that uncorroborated inculpatory admissions made by an accused to the Garda Síochána can be sufficient evidence to ground a conviction, to examine whether additional safeguards are needed to ensure that such admissions are properly obtained and recorded and to make recommendations accordingly”. It will thus be observed that the committee was precluded from recommending that uncorroborated statements ceased to be sufficient for a conviction, but were constrained to accept as their starting point that such statements could be sufficient to secure a conviction. The committee reported, strongly favouring the tape recording of all statements, not merely in garda stations but in garda vehicles. Special warnings to juries as to the danger of convicting on uncorroborated confessions were also considered.
In particular, the committee said at p. 36:-
“We strongly recommend, as a safeguard towards ensuring that inculpatory admissions to An Garda Síochána are properly obtained and recorded, that the questioning of suspects take place before an audio-visual recording device. Nor would we confine this recommendation to interviews in garda stations. With recent advances in technology, such devices have become smaller and consequently lighter and more easily portable; we would recommend that, should it become technically feasible, interviews elsewhere, such as at the scene of alleged crimes, be similarly recorded in full.”
Before coming to this recommendation, the committee examined the position in certain other jurisdictions. In particular, it referred to a study conducted by Professor Alan Grant, on audio-visual recording of interviews in Ontario. Out of some 540 interviewees, 69 declined to have their interviews recorded audio-visually. Of the remaining 471, no less than 419 made either full or partial confessions, whilst the remaining 52 protested their innocence. Commenting on this report, the committee said further at p. 36:-
“What is of interest is that the Canadian experiment caused the need for ‘a trial within a trial’ entirely to disappear. Furthermore, Canadian defence lawyers were of the view that such a system of recording was far more accurate than police note-taking, and were prepared to accept it as such.”
It is of particular interest to note that the committee, assuming that the recommendation as to audio-visual recording would be acted upon, also said the following at p. 39:-
“In particular, we would consider it entirely desirable to obtain their views (i.e. views of the judges) as to the necessity for trial judges, in appropriate cases, to give to juries a warning something along the following lines:
‘if your verdict as to the guilt of the accused is to depend wholly or substantially on the accused’s inculpatory admission, you should bear in mind that there have been a number of instances in the past where admissions have subsequently been proved to be unreliable; accordingly you should be especially cautious in considering the degree of weight to be attached to the admission, but if after careful consideration of all the circumstances you feel satisfied beyond reasonable doubt that it is safe to rely upon it, then you are at liberty to do so. However, in so considering this issue, you should have regard to the nature and duration of the custody, and such effect, if any, as you are satisfied it had on the mind of the accused, taking into consideration all such matters as appear to you to be relevant, including age, sex, degree of intelligence and educational attainments’.”
On the 31st March, 1990, the Minister for Justice indicated that the Government accepted, in principle, the recommendations of the Martin Committee. Indeed, statutory provision for video taping has existed since 1984, but the practice has never become universal or anything like it.
The legal event most closely preceding the enactment of s. 10 was the decision of the Supreme Court in The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305. There, the court was expressly invited to lay down a judge made rule that the judge warn the jury of the dangers of convicting on an uncorroborative confession. The process whereby this was said to be possible was analogous to that set out in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, at p. 37:-
“Judicial experience has shown that certain general directions and warnings are necessary in every case and that particular types of warnings are necessary in particular types of case.
Such accumulated judicial experience eventually tends to crystallise into established rules of judicial practice, accepted rules of law and statutory provisions.”
In The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305, the last ground of appeal on behalf of the second appellant as set out on p. 328 was:–
“[t]hat the learned trial judge erred in law in not holding that it was essential in the interests of justice that the trial judge warn the jury of the dangers of convicting the appellant on the uncorroborated evidence of the alleged admission by the appellant while in custody pursuant to the provisions of s. 30 of the Offences Against the State Act 1939.”

The majority of the court (Finlay C.J., Hederman and O’Flaherty JJ.) were not prepared to assent to this proposition. McCarthy and Egan JJ. took a different view.
Finlay C.J. held at p. 331 that:-
“It does not seem to me, however, that the problems thus arising are amenable, as a matter of principle, to a general requirement for judicial warning in every such case against the dangers of convicting on foot of the evidence contained in such inculpatory statements, where it is not corroborated.”
Hederman J. held at p. 338 that:-
“… insofar as the danger of fabricated evidence is concerned it appears to me that a rule requiring corroboration of the making of admissions would serve no useful purpose as those most likely to give corroborative evidence would be persons themselves guilty of crime. While it may be said that members of the gardaí, by reason of their profession, have a special interest in bringing law breakers to book, it would not on that account be reasonable, in effect, to equate them with accomplices in a crime.”
O’Flaherty J. at pp. 356 to 357 said:-
“In the result, therefore, it will be clear that the only extant example of a warning requirement based on judicial practice is in the case of discredited witnesses. We are asked, in effect, to assign police testimony, in the case of confession evidence to the same category as that of an accomplice. That is the legal landscape in which this plant is to take root. I am satisfied that such a judicial development is not justified.
If there is an attack on confession evidence in the course of a trial I would prefer to leave to the good sense of the trial judge in each individual case to weigh the extent of the warning that he thinks should be given to the jury about acting on the evidence if the matter is uncorroborated. … If we introduce this warning requirement what rationale are we to give it? The only one that springs to mind is that police evidence is to be equated as intrinsically unreliable in the same way as that of accomplices.”
In the following paragraph O’Flaherty J. went on to refer to the Criminal Justice Act 1984 and to say at p. 357:-
“I think we are, at this stage of our development, fairly and squarely in an area of policy which should properly be left to the Oireachtas. The question of having electronic recording of police interviews is provided for in s. 27 of the Act of 1984. Regulations have not yet been brought in to implement the provisions of the section. It is not for me to reason why this has not been done but the introduction of audio or audio-visual recordings is as likely to be of benefit to the gardaí as it is to the accused. It would, I am convinced, be a much better way to ensure that a just verdict is reached than the introduction of a corroboration warning requirement.”
I have to say that I do not understand the reasoning of Hederman J. when he speaks of the persons most likely to provide corroboration as being themselves persons guilty of crime. I would have thought that the most obvious form of corroboration is some relevant, objective confirmation of the factual material in the confessions. Nor do I understand the reasoning of O’Flaherty J. when he says at p. 356 that”the only extant example of a warning requirement based on judicial practice is in the case of discredited witnesses”. The warning required by The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, specifically extends to honest witnesses. I think, however, that O’Flaherty J. identifies a grave difficulty in this area when he asks at p. 357 “If we introduce this warning requirement what rationale are we to give it?”
McCarthy J., with whom Egan J. agreed, took a different view on this topic and this is set out at pp. 339 to 345 of the report. He states the background to the issue, and perhaps thereby answers O’Flaherty J.’s rhetorical question at p. 342:-
“It would be closing one’s eyes and ears as a member of the public not to recognise recurring public disquiet in respect of convictions in Ireland and in the United Kingdom based upon uncorroborated evidence of admissions allegedly while in police custody, when no warning as to the danger of acting on such evidence has been given to a jury, if appropriate, or to the court itself if there is no jury.”
After an exhaustive discussion of the topic, McCarthy J. referred to other cases in which either statutory provisions or judge made rules required a warning on convicting in the absence of corroboration. At pp. 344 and 345 he said:-
“We are here dealing with a critical part of the constitutional frame, the right to a fair trial, ordinarily before a jury. Statutory provisions as to corroboration have been made in cases involving children and otherwise. Yet this court in The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 introduced this specific requirement in regard to the charge to the jury in cases involving visual identification. Of course, the legislature may introduce this or even greater requirements in respect of corroboration; but it may not. The executive, of which the gardaí form part, may not decide that such a precaution is necessary and, therefore, will not move the legislature to that end. In my view this court should, following the example of The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33, declare it to be an essential part of the procedure for a fair trial in criminal cases where a conviction must depend upon the validity of evidence contained in admissions, written or otherwise, that the jury be warned of the danger of convicting on such evidence if there is no corroboration for it. If one needs to identify a motive then the very wish to secure a conviction, particularly where he is convinced of the guilt of the person in custody, itself constitutes a purpose of his own on the part of the investigating garda.”
It was against the background of those starkly differing judicial views that s. 10 of the Act of 1993 was passed.
Certain of the issues which had divided the judges in The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305 were resolved by the statutory intervention. In particular, in cases of an uncorroborated statement, “the judge shall advise the jury to have due regard to the absence of corroboration”.
We are now concerned with what precisely that phrase means and whether what was done in the present case is sufficient compliance with s. 10(1).
Requisition
This matter was the only one which was the subject of a requisition by the defence at the end of the trial. Counsel for the accused said:-
“… the requisite warning that you can give on a case that is based only on statement. I know you did give a warning and the words I believe you used were that ‘you must keep this in mind’ but I wonder if you might consider making an explicit warning on that. I would be in your hands.”
The trial judge said:-
“The section is most curious. I have to admit to having been there when it was drafted and debated. What it says is that the advice that the jury ‘have due regard’ and what that means is a wonderful piece of obfuscation. You are suggesting I should say what?”
Counsel for the accused replied:-
“I would suggest that it should be made explicit that in a case which depends on a statement there should be an explicit warning that very careful regard should be given before a conviction should be recorded.”
Counsel for the prosecutor submitted simply:-
“All l would say is that the section actually says ‘due regard’ and your Lordship did bring to the jury’s attention that it was a statement that they were acting on.

The trial judge resolved the matters as follows:-
“As to the warning I have given the jury in respect of the non-corroboration and unsupported statement, I put to them to be careful and mindful and that the central issue is for them to decide on the facts what occurred. So with your leave I am now going to let the jury stay at their deliberations and we will await developments.”
Due regard
The dictionary meaning of “due” in this context includes proper, rightful or appropriate. In Geneff v. Townsend [1970] W.A.R. 20, the phrase “due care and attention” in a road traffic context was held to be intended to connote an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. We consider that the term”due regard” is intended to connote an objective, normative standard of regard or attention to be paid to the absence of corroboration. We consider that the phrase is not a self-explanatory one, but that it calls for elucidation. If a medical text book advised doctors to ensure that patients contemplating surgery had due regard to the risks of mortality and morbidity, that might be perfectly adequate advice to professionals. But if a doctor dealing with an individual patient confined himself to saying “I must advise you to have due regard to the risks of mortality and morbidity in this procedure”, that would be an utterly uninformative statement to nine patients out of ten.
To render the statement “have due regard to the absence of corroboration” intelligible at all to a lay audience, it must be explained in terms of the meaning of corroboration and the factual nature of the prosecution’s case. I do not consider that the section is “a wonderful piece of obfuscation”. It is undoubtedly somewhat unspecific, because it is intended to leave a good deal of discretion to a trial judge to be exercised in accordance with the requirements of the individual case. Sub-section (2) makes it clear that a judge need not use any particular form of words. The phrase, with its necessarily generalised reference to “due regard” cannot be explained or expounded to a jury without using words other than those of the section itself or precisely equivalent words. What is “due” in any particular case will vary and some attempt must be made to suggest the considerations relevant in giving the absence of corroboration such regard as is “due” on the facts of any particular case.
In particular, it seems to the court impossible meaningfully to advise that “due regard” be paid to the absence ofcorroboration unless that term is properly, and not merely technically, explained. This will often, of course, be necessary in any event because in many cases there is evidence which could amount to corroboration if the jury accepted it. Because the judge cannot know in advance whether they will accept it or not, it will be necessary in such cases, even apart from s. 10, to explain the meaning of corroboration in law. As a result of s. 10, it will then be necessary to give the advice required by that section for the guidance of the jury if they do not accept the evidence said to constitute the corroboration. Accordingly, it is not unduly burdensome, in my view, to require that corroboration be explained. It is also necessary, I think, briefly and meaningfully to explain why it is natural to look for corroboration in serious cases and equally why, in some cases even the most diligent search will be unavailing. The facts of the individual case will suggest appropriate illustrations. Depending on the individual case, it may be desirable to say something about why corroboration would be desirable in confession cases especially and the extract from a suggested possible charge to a jury in the Martin report, quoted above, may be useful here.
The form of words “…there have been a number of instances in the past where admissions have subsequently been proved to be unreliable” is neutral, in that it does not, quite correctly, attribute this wholly to malfeasance. It may not be necessary in every case and the circumstances of some cases may require a stronger warning.
The present case
In the present case, it was pointed out that there was no corroboration and the meaning of corroboration was very briefly indicated. It was then followed with the single sentence:-
“That is something that you should bear in mind in applying your considerations to it.”
In our view, this last sentence is the only part of the trial judge’s reference to corroboration which could fairly be described as”advice”. It is advice of a very general sort indeed. I have already said that the phrase “due regard” is so general as to be meaningless unless explained. In our view, however,”something you should bear in mind” is vaguer and less forceful even than the statutory phrase. It amounts to very little more than telling the jury that they should not exclude the absence of corroboration from their consideration. Very diffidently and without in any way suggesting a particular form of words, we venture to set out a possible approach to s. 10 in the context of this case:-
“This case stands or falls on the confessions which the prosecution allege the accused made. Either you are satisfied beyond reasonable doubt that that confession is true and reliable, in which case you will convict, or you are not so satisfied, in which case you will acquit. The law requires me to point out to you that there is no corroboration of the evidence of the confession. Corroboration means independent confirmation. In a case like this, it would mean some evidence independent of that of the gardaí who say they heard the accused confess, which you could fairly and reasonably regard as confirming the truth of the confession. There might have been forensic evidence placing the accused in the injured party’s house, which would certainly confirm the truth of the alleged confession. He might have been found in possession of the stolen property or he might have been identified by some person as the robber. On the other hand, there are cases which, of their nature, make it hard to find corroboration. You must consider what sort of case this is from the point of view of corroboration. When you are considering whether you can feel sure that the statement is true and reliable beyond reasonable doubt, you must ask yourselves whether the absence of any corroboration or independent confirmation of the statement should reduce your trust in it to the point where you are not confident of its truth beyond reasonable doubt. Since the earliest times, people faced with important decisions have sought to make their task easier by looking for independent confirmation of one view or another. It is very natural and prudent to do so, and very comforting if you find it. But if it is absent, the decision still has to be made. If it is absent where you would expect to find it, that fact in itself may affect the decision.
I am obliged to give you this warning because of a law passed by the Oireachtas in 1993, which says that I must advise you to give due regard to the absence of corroboration. It is essential that you do so. You must also bear in mind that, despite the absence of corroboration, you are perfectly entitled to convict if you are indeed satisfied of the truth of the accused’s confession beyond reasonable doubt. The law does not say that you cannot convict without corroboration, merely that you should specifically consider the absence of corroboration and what weight, if any, you should give to this factor. Once you do this, your decision is a matter for your own good sense and conscience.”
Since the charge of the trial judge does not contain advice which is sufficiently explanatory of the term “due regard” to the absence of corroboration, the court grants the application for leave to appeal and allows the appeal.
Video recording
It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio-visual
recording of interviews. This is routine in most first world common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It also has the consequence that, in a very high percentage of criminal trials, there is a hard fought issue (“the trial within a trial”) as to the admissibility of statements which are often the whole or a large part of the prosecution case. Twelve years ago, the Martin Committee reported that this situation had virtually ceased in Ontario because of audio-visual recording. The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio-visual machinery or that the audio-visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.

 

 

D.P.P. v. Cullen

[2001] IEHC 21 (7th February, 2001)
THE HIGH COURT
1999 No. 1938SS
IN THE MATTER OF
SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857
AND IN THE MATTER OF
SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
AND
JAMIE CULLEN
RESPONDENT

Judgment of Mr Justice Aindrias ÓCaoimh delivered on the 7th day of February 2001
1. Judge William Harnett, a Judge of the District Court sitting at Kilkenny District Court, has stated a case for the opinion of this Court pursuant to section 2 of the Summary Jurisdiction Act, 1857 as extended on the application of the Director of Public Prosecutions (hereinafter referred to as “the Director”). It is stated that the prosecution against the Respondent came before the District Court on the 13th of January 1998 and thereafter on the 20th of January and the 3rd of February 1998 at Kilkenny District Court on foot of a Summons served on the Respondent alleging an offence of driving with an excess of alcohol in his urine contrary to section 49(3) and 6(a) of the Road Traffic Act, 1961 as amended.

2. The case stated cites the evidence before the District Court

Garda Frances Dunphy, a member of the Garda Síochána stationed at Kilkenny gave evidence that on the 8th of June 1997 at approximately 4.30 a.m. she was on duty at Castle Road, Kilkenny with Garda Lennon, Garda Furlong and student Garda Foley. Whilst talking with two youths they heard a vehicle coming in their direction from the traffic lights on the Parade up the Castle Road at what appeared to be high speed. It was a small white car. Garda Dunphy stated that she stepped out on to the road and waved her flash light signalling the occupants to stop.
The vehicle, a white Peugeot 205 slowed down but failed to stop. It continued on up the Castle Road. Garda Dunphy observed a male driver and a female blond-haired passenger.
Garda Dunphy and her colleagues immediately got into the patrol car and followed the vehicle up Castle Road. They put on the blue flashing lamp and followed the vehicle into Larchfield, a public place. At 4.32 a.m. Garda Dunphy observed the car pulling into the side of a footpath.
The Gardaí pulled in behind the vehicle and Garda Dunphy got out of the car and proceeded towards the vehicle. As Garda Dunphy walked up to the driver’s side of the car, the driver had one leg out of the car and was clearly emerging from the car. Garda Dunphy asked the driver to stand out from the vehicle. He gave his name as James Cullen, 68 Larchfield, Kilkenny. The vehicle bore registration numbers and letters 88 KK 2690. Whilst Mr Cullen was out of the car, he had to lean against the car and the wall. There was a strong smell of alcohol.
At 4.35 a.m. and as a result of her observations, Garda Dunphy formed the opinion that the Respondent was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant and at that time Garda Dunphy arrested him for that offence and told him of her opinion and of the offence under section 49(2) or (3) of the Road Traffic Act, 1961 to 1994. She explained to him that he was being arrested pursuant to section 49(8) of the said Act. She then explained to him that he was being arrested for drunk driving as he was unable to have proper control of his vehicle due to the fact that he had consumed alcohol.
Garda Dunphy then gave the Respondent the usual oral warnings and in reply he stated that he was coming from a wedding and that he had probably too much to drink.
Garda Dunphy placed the Respondent in the back of the patrol car. He was taken to Kilkenny Garda station arriving there at 4.45a.m. Garda Dunphy brought the Respondent to the public office. The Member in Charge was Garda William Powell. Garda Dunphy introduced the Respondent to Garda Powell and explained to Garda Powell the reason for Mr Cullen’s arrest.
At 4.47 Doctor Miriam Hogan was telephoned. At 5.10 a.m. She arrived at the station. When she arrived at the station Garda Dunphy introduced her to the Respondent as a designated medical practitioner called on behalf of the Gardaí. Garda Dunphy then made a requirement pursuant to section 13(1)(b) of the Road Traffic Act, 1994 and required the Respondent to provide a sample of his urine or to allow the doctor to take a sample of his blood. Garda Dunphy advised the Respondent of the consequences of failure to provide a sample. The Respondent opted to give a sample of urine.
The doctor took a sample of urine from the Respondent and having made the requirements under the Road Traffic Act completed in duplicate the certificate which she had taken from the box provided to her. She left the station at 5.35 a.m.
Garda Dunphy offered the Respondent either one of the samples of his urine which had been taken and read out to the Applicant a statement of his rights contained on the yellow slip. This was to the effect that he might retain either of the two containers. The Respondent took a sample. Garda Dunphy then handed the slip to him which he took. He chose one of the samples.
The Respondent was released from the Garda Station at 5.30 a.m. on the 8th of June 1997 and the sample was sent by registered post by Garda Dunphy on the 9th of June 1997.
Garda Dunphy received a certificate from the Medical Bureau of Road Safety indicating a concentration of 229 mg. of alcohol per 100 ml. of urine.
Garda Dunphy was cross-examined by Mr Eugene O’Sullivan, Solicitor for the Respondent. Garda Dunphy agreed that at all times the Respondent had been polite and was not in any way difficult although there had been some difficulty in relation to the giving of the sample. It was put to her that this was because the Respondent was not aware of his rights and had not been made aware of his rights. In reply Garda Dunphy agreed that she herself had not seen and could not therefore comment as to whether and how the Member in Charge had gone about his duties as a Member in Charge on that particular night.
Garda Dunphy agreed that she was aware of the presence of Sinead Lambert in the Garda Station and was aware that Ms Lambert had attempted to contact a Solicitor and had in fact at one stage a phone book in her hand.
Garda Dunphy agreed that, when Doctor Hogan arrived and the requirement was made pursuant to section 13, the Respondent initially declined to give a sample. Garda Dunphy did not agree that this was because the Respondent was unaware of his rights. She did, however, recall the Respondent leaving the doctor’s room on the requirement being made and that there was some discussion outside with Ms Lambert.
While Garda Dunphy took notes at the time she did not have any note of a complaint having been made by the Respondent that he had not been read out his rights. She agreed that the Respondent was then required to go back into the doctor’s room and the requirement was made pursuant to section 13 and it was pointed out to him how serious a refusal could be. She denied that she did not hand the Respondent the yellow paper and further denied that she did not read out the contents of the yellow slip.
Garda Dunphy stated that she was unaware that the Respondent had refused to sign the custody record book. This was a matter for the Member in Charge.
Garda William Powell gave evidence that at 10 p.m. on Saturday the 7th of June 1997 he took up duty as Member in Charge of Kilkenny Garda Station under the Regulations of the Criminal Justice Act, 1984 being the Treatment of Persons in Custody in Garda Stations Regulations, 1987. He gave evidence by reference to the custody book in front of him.
He stated that at 4.05 a.m. on the 8th of June 1997 Garda Dunphy arrived at the Garda Station with the Respondent in her custody. Garda Dunphy informed Garda Powell at 4.35 a.m. of the fact that Mr Cullen had been arrested for drunk driving. Garda Powell stated that he read over Mr Cullen’s rights and handed him a copy of form C.72 (Information for Persons in Custody). At 4.47 a.m. Garda Lennon rang Doctor Hogan who agreed to come to the station.
At 5.05 a.m. Sinead Lambert called to see the Respondent.
Under cross-examination by Mr O’Sullivan Garda Powell stated that he was relying on what was in the custody book in relation to his recollection of what happened on the morning in question although he had some recollections. He agreed that he was clearly incorrect when he had stated to the Court in examination in chief that the parties had arrived at 4.05 a.m.. He should have said 4.45 a.m.. Garda Powell did not agree that he had failed to read the Respondent his rights or hand him a copy of his rights. He said that he was an experienced Member in Charge and performed the duties of a Member in Charge frequently.
Garda Powell was asked whether he did anything else in performance of his obligations as a Member in Charge on the particular night. In answer he stated that he could not say anymore. He was asked further whether he was saying to the Court that the most he had done was to furnish the rights and hand them over to the Respondent and that this was the totality of his compliance with the Regulations. Garda Powell said that this was correct.
It was put to him that both the Respondent and Ms Lambert would give evidence that she arrived as a friend of the accused and borrowed a phone book for the purposes of telephoning a solicitor. Garda Powell agreed that this was his recollection. He agreed that he handed the phone book to Ms. Lambert. He did not agree, however, that he snatched the book back from her. Garda Powell stated that if somebody wanted to ring a solicitor he would make that call. He did not agree that the purpose of the phone book being handed to Ms Lambert was for the purpose of contacting a solicitor friend of hers to assist the Respondent.
It was put to Garda Powell that he had said to Ms Lambert on the night in question “You have been here before”. Garda Powell denied that he would have said anything like that. He was asked whether he knew Ms Lambert and he replied that he knew her vaguely. Garda Powell was asked whether or not he was personally aware on the night in question that Ms Lambert had been in a garda station a number of years previously for the purposes of the taking of a sample. Garda Powell agreed that he had been so aware on that particular night. It was then put to him that it was incredible that she could state and would give evidence that he had uttered the words “You have been here before” and that he denied it, given that he was in possession of the knowledge of her previous visit at the time of the detention of the Respondent. Garda Powell made no particular comment in relation to this.
Garda Powell was then asked to account for why some of the dates in the custody record book appeared to have been changed. He was not in a position to account for this. He was asked whether it was correct that the Respondent had expressly declined to sign the custody record book. Garda Powell agreed that this was so. He was then asked to read out what it was that Mr Cullen was being asked to acknowledge and Garda Powell confirmed that the signature was to acknowledge the fact that his rights had been read and that he had been handed a copy of his rights. It was put to Garda Powell that the declining by the Respondent to sign the custody record was supportive of his allegation that he had not been informed of his rights nor handed a copy of his rights. Garda Powell agreed that the Respondent had at all times been polite and not aggressive. Garda Powell volunteered the view that everything had gone along perfectly smoothly until the arrival of Ms Lambert at the Garda Station.
Following legal argument the Respondent went into evidence. In his evidence he confirmed that he was 27 years of age, single and that he worked as a tyre fitter and that he had no previous conviction. He confirmed that he had not been in a garda station under arrest before. At about 4.20 to 4.25 a.m. he had been driving his Peugeot car with his girlfriend back from a wedding. He did not see the Garda at the castle although he did see somebody there and was satisfied that he should have stopped. He recalled having been arrested at Larchfield by Garda Dunphy with the other Gardaí there. After being arrested he asked his girlfriend to attend at the Garda Station and she agreed to do so. As there was no room in the squad car she had to make her own way there.
At the Garda Station the Respondent was put sitting down in a waiting area. He stated that he was not handed a copy of his rights nor were his rights explained to him. The first reference to a solicitor was when his girlfriend, Sinead Lambert, arrived at the Garda Station having obtained a taxi to get there. She explained to him that she knew of a solicitor personally who lived in Enniscorthy and that she would try and telephone him. Ms Lambert got a phone book and was looking up the number when the doctor arrived. At this stage the Respondent was brought into a different room which he presumed to be the doctor’s room and Garda Dunphy made a requirement of him to give blood or urine. The Respondent declined initially on the basis that he was not aware of his rights and wanted to know more about the process and what his choices were. He then left the doctor’s room and went out again to talk to Ms Lambert. She was trying to get the number.
Garda Dunphy had explained in the doctor’s room that if he did not give a sample he could be prosecuted for failing to give a sample and disqualified for two years anyway and also liable to be sent to prison for a period of time. Whilst the Respondent was with Ms Lambert the Member in Charge, whom the Respondent had not previously met before, came over and asked Garda Dunphy what the problem was. Garda Dunphy replied that the witness was not prepared to give a sample. At this, the Member in Charge immediately took the book from Ms Lambert’s hand and asked her to get out of the station and mentioned that she had been there before. Ms Lambert obeyed the order of the Member in Charge. The Respondent was amazed at these developments.
The Respondent was then brought back into the doctor’s room and a requirement was again made for him to give a sample and he agreed to give a sample opting for urine. He then provided a sample which was divided in two, placed in two boxes and Garda Dunphy offered one of the samples to him which he took. The Respondent was adamant that he did not receive any yellow piece of paper. He stated that he kept everything that he obtained in the Garda Station that night carefully and that that amounted to the sample and nothing else.
The Respondent stated that Doctor Hogan then left and as the Respondent was leaving Garda Dunphy asked him to sign the custody record book. The Respondent declined to sign, explaining that he had not been made aware of his rights. Garda Dunphy stated that it was not necessary for him to sign it anyway. The Respondent was then given a lift home. He stated that he did want to contact a solicitor that night as he felt there might have been some point to be raised in the fact that he had not been in the car when the Gardaí arrived to him at Larchfield.
The Respondent was then cross-examined by Inspector Roche on behalf of the Appellant. It was put to him that the request to sign the custody book would have been done by Garda Powell as part of his duties. The Respondent said that it was his recollection that Garda Dunphy had asked him to sign it. He stated that it was his first time in a Garda Station and that it was between 4.30 and 5 o’clock in the morning and that he did not know of any solicitor locally not being from the area himself. He never had a need for a solicitor before. When the suggestion was made by his girlfriend that she could contact a solicitor whom she knew, he was very happy that this be done by her on his behalf and he did wish to avail of a solicitor’s advice at that stage.
When asked by Inspector Roche why he did not stop for Garda Dunphy at 4.30 a.m. on the morning of his arrest, given that it was daylight, he replied that he did not see her. It was then put to him that he had already pleaded guilty to a charge of failure to stop contrary to section 109 of the Road Traffic Act, 1961/1968. It was further put to him that his memory was selective and defective and that he had already admitted after caution to Garda Dunphy that he had been coming from a wedding where he had probably had too much to drink.
Sinead Lambert then gave evidence. She stated that she was 24 years of age, single and a hairdresser. She had consumed some alcohol that night but her last drink had been at 1 a.m.. She stated that she had a clear recollection of the incident. They had been at a wedding.
She remembered the Respondent being arrested and brought to Kilkenny Garda Station. She made it clear to the Gardaí that she would like to accompany her boyfriend but there was no room in the car, a fact which she fully understood. She was able to hail a taxi and arrived at the Garda Station a little after 5 a.m.. She announced her presence and introduced herself and explained why she was there and the Garda on duty let her in to see the Respondent who was sitting in the corridor just inside the day room. She asked the Respondent what was going on and the Respondent told her that he had been told to sit there until the doctor arrived and the doctor had not as yet arrived. She stated that she suggested to the Respondent that she give a friend of hers, Rory Deane, a Solicitor in Enniscorthy, a telephone call. There was some discussion between them about the fact that he had been out of the car when the Gardaí came along and that there might be some legal advice to be taken on the matter. The Respondent agreed to the suggestion.
Ms Lambert then went over to the Garda in charge and asked him could she borrow a phone book. She told the Garda that it was to look up a telephone number of a solicitor friend of hers whom she wanted to ring on behalf of her boyfriend. He agreed that that was all right and handed Ms Lambert the phone book. At the same time the Garda mentioned to Ms Lambert that he did not think it really mattered as the Respondent had to give a sample anyway. Ms Lambert then looked up the phone book and as she was looking for the telephone number the doctor arrived. Garda Dunphy brought the Respondent into the doctor’s room. Ms Lambert was still looking up the number when the Respondent came out and asked her if she had obtained the number yet. She heard the Respondent tell the Garda that he wanted to wait before giving a sample, to speak with the solicitor, that his girlfriend was trying to contact. She said that it was clear at this stage that Garda Powell was getting fed up and he came over and grabbed the phone book out of the witness’s hand and said “Get out of here, you’ve been here before”. She stated that she took this to be a reference to the fact that some three years previously she had been arrested and had to give a sample in the Garda Station and had subsequently been disqualified. She stated that she was shocked at the response of the officer and that she left the day room and sat out in the waiting area until the Respondent came out.
In cross-examination Ms Lambert stated that she was perfectly clear in her recollection and that she was not drunk. She had consumed alcohol up until about 1 a.m. only. She had the phone book in her hand not more than three to four minutes. Given the time of day, she was looking up Mr Deane’s private number rather than the office number. It was taking a length of time which she felt was reasonable in the circumstances and she was very upset by the remarks of Garda Powell.
The case stated then recites that Judge Harnett then recalled Garda Dunphy. She told him that she would not have asked the Respondent to sign the custody record book as this would have been the job of Garda Powell. Garda Dunphy was then cross-examined by Mr O’Sullivan on this point and was asked whether or not there was any great significance as to whether she or Garda Powell had asked witnesses to sign the custody record book. She stated that it was significant only in so far as it would not normally be her who would do it. It was put to her by Mr O’Sullivan that if Garda Powell had failed to have this done and that she had noticed it that she would try to correct it. Garda Dunphy made no particular response to this remark but did confirm that in any event it was clear from the custody record book that Mr Cullen had expressly declined or refused to sign it and that what he was refusing to sign was an acknowledgement that he had been given and read and explained his rights.
3. This completed the evidence in the case.

4. Submissions were then made to the presiding Judge. On behalf of the Respondent it was submitted that he had not been informed of his rights either orally or by documentation having regard to the evidence. It was submitted by Mr O’Sullivan that it was clear that the first time the Respondent knew of anything concerning his rights was when his girlfriend arrived at the station and informed him of his rights. Having regard to the clear breach of the custody regulations by the Member in Charge the Respondent had been denied his legal and constitutional rights of access to a solicitor and of advice generally and that accordingly any evidence gathered thereafter should, in the discretion of the Trial Judge, be ruled inadmissible.

On behalf of the Director it was submitted that the Respondent had pleaded guilty to failing to stop for Garda Dunphy on the night in question. He had admitted that they were coming from a wedding and probably had too much to drink. He did give a sample of urine. The presence of a solicitor could not prevent the Respondent from providing a sample of either blood or urine as he was required by law to do so. The Member in Charge was deployed as a permanent Member in Charge at Kilkenny Garda Station and deals with many prisoners. The Respondent was a prisoner and a person entitled to his rights and Ms Lambert was allowed a visit which is all she is entitled to under the regulations. It was to be noted that it was Garda Powell himself who provided Ms Lambert with the phone book and by her evidence she had the phone book for up to four minutes to phone the solicitor, whom she knew.
5. It was further submitted that the Court has a discretion in relation to the failure to comply with the said regulations.

6. Having regard to the evidence which the learned Judge of the District Court heard in this case and to the demeanour of the various witnesses he made the following findings of fact:

The Respondent had not been handed a notice of his custody rights;
The Respondent had not had his rights read out to him;
The Respondent had not had his rights explained to him;
The Respondent declined to sign the custody record book as his rights had not been given to him;
Garda Powell’s evidence was faulty and unreliable. In this regard the District Court Judge accepted the Respondent’s evidence that Garda Powell had snatched the phone book back from Ms Lambert thus preventing her contacting a solicitor and asked her to leave and said words to the effect that she had been there before;
Garda Powell had not performed the duties incumbent upon him as a Member in Charge pursuant to the requirements of the Treatment of Persons in Custody in Garda Stations Regulations 1987;
The times on the custody record had clearly been changed;
No explanation whatsoever had been offered for the change in the custody book by the Member in Charge;
Having regard to the above findings of fact the learned Judge of the District Court dismissed the charge on his being satisfied that the legal and constitutional rights of the Respondent had not been accorded to him on the night in question and in the exercise of his Judicial discretion.
7. The opinion of this Court is sought as to whether

He was correct in law in dismissing the said charge brought against the Respondent
In light of the facts as settled in this case, which facts have been agreed, and in full consultation with both the Appellant and Respondent’s legal representatives for this case stated, the Judge asks whether hi is entitled to take the view that the stating of this case amounts to an unwarranted attempt to oust the inherent jurisdiction of the District Court to hear this matter to a reasonable conclusion.

The Law
8. Regulation 8 of the Custody Regulations provides as follows:-

“(1) The Member in Charge shall without delay inform an arrested person
or cause him to be informed :-
In ordinary language of the offence or other matter in respect of which he has been arrested.
That he is entitled to consult a Solicitor and
(i) in the case of a person not below the age of seventeen years of age that he is entitled to have notification of his being in custody in the station concerned sent to another person reasonably named by him….
The information shall be given orally. The Member in Charge shall also explain or cause to be explained to the arrested person that, if he does not wish to exercise a right specified in subparagraph (b) or (c)(i) immediately he will not be precluded thereby from doing so later.
(1) The Member in Charge shall without delay give the arrested person or cause him to be given a notice containing the information specified in subparagraphs (b) and (c) of paragraph (1) and such other information as the Commissioner of An Garda Síochána with the approval of the Minister for Justice, may from time to time.
(2) Paragraphs (1) and (2) apply only in relation to the Member in Charge of the station to which the arrested person is taken on arrest or in which he is arrested.
(3) The time of the giving of the information specified in paragraph (1) and the notice specified in paragraph (2) shall be recorded. The Member in Charge shall ask the arrested person or cause him to be asked to sign the custody record in acknowledgement of receipt of the notice. If he refuses to sign, the refusal shall be recorded. ”

9. Section 7(3) of the Criminal Justice Act, 1984, being the Act on foot of which the foregoing Regulations are based provides as follows:-

“ A failure on the part of any member of the Garda Síochána to observe any provision of the Regulations shall not of itself … affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.”

Submissions of Counsel
10. Counsel on behalf of the Director refers this Court to the decision of O’Hanlon J. in the case of the Director of Public Prosecutions -v- Eric Spratt [1995] 2 ILRM 117. This case concerned a charge of refusing to comply with the requirement of the Garda doctor in relation to a provision of a sample following upon an arrest under section 49 of the Road Traffic Act, 1961 as amended. In contrast to the present case it is submitted that there was no evidence whatsoever in relation to the compliance or otherwise with the Custody Regulations.

11. O’Hanlon J. having considered the content of the relevant Regulations and the provisions of section 7(3) aforesaid stated, inter alia , as follows at page 122 of the Report:-

“The phrase ‘of itself’ is obviously an important one in the construction of the statutory provisions, and I interpret the subsection as meaning that non-observance of the Regulations is not to bring about automatically the exclusion of evidence of all that was done and said while the accused person was in custody. It appears to be left to the court of trial to adjudicate in every case as to the impact of the non-compliance which the regulations should have on the case for the prosecution.”

12. In the course of his judgment O’Hanlon J. also considered the previous Judgment of Blayney J. in the case of Walsh-v-O’Buachalla [1991]1I.R. 56. The facts of this case were that the Applicant was denied access to a solicitor in circumstances where the arresting Garda believed that the request was not genuine and was made merely for the purpose of delay. The Applicant was informed that he could contact a solicitor as soon as the specimen had been taken. After the specimen was taken the Applicant did not seek to contact a Solicitor. The Applicant sought to quash his conviction on the foregoing grounds. Blayney J. held, assuming the refusal of the Applicant’s request for access to a solicitor was in breach of his constitutional rights, that the certificate of the doctor was nonetheless admissible in evidence since the specimen had been obtained after but not as a result of that breach.

13. O’Hanlon J. approved this decision in the Spratt case stating inter alia, at page 123 :-

“I think that the correct approach in the present case is to pose the same question which Blayney J. asked of himself in Walsh’s case. If a breach of a constitutional right of the accused person took place, as alleged, in what manner was he prejudiced thereby? Was any information obtained which might not have been otherwise obtained?
It is easy to conceive a situation where an accused person in custody is not informed of his right of access to a solicitor, and does not seek legal advice in consequence, and proceeds to make an incriminating statement when a legal adviser might have counselled silence. In this set of circumstances it can be envisaged that the decision of the trial Judge might be to exclude the evidence so obtained.
In the present case, however, as in Walsh’s case, an accused person was in the garda station awaiting the arrival of the registered medical practitioner who was to take a sample of blood or urine, which the accused person was obliged by law to provide for him in accordance with the relevant statutory provisions. Access to a solicitor or advice from a solicitor could not avert this fate, and no further evidence was then required for the purpose of the prosecution save evidence of the circumstances of the arrest, the obtaining of the sample and the formal, technical evidence of what was disclosed by the sample taken.”
In the words of Blayney J.
“It was submitted on behalf of the Applicant that if he had had access to a solicitor he could have been advised by him. But what advice could a solicitor have given him? He would certainly not have advised him to commit an offence by refusing to give one or other of the specimens. All he could have done was to confirm that the Applicant was required by law to provide a specimen of blood or urine. No advice could have prevented the specimen being obtained, and, accordingly, the applicant’s not having had access to a solicitor in no way affected its being obtained. (p.60)”

14. Further reliances is placed by Counsel on behalf of the Director upon the decision of this Court delivered by Budd J. in the case of the Director of Public Prosecutions (at the suit of Garda Patrick Dillon) -v- Patrick Devlin (Unreported High Court 2nd September 1998). This case also concerned the charge of drink driving contrary to section 49 of the Road Traffic Act, 1961 as amended and the evidence given disclosed that the Member in Charge was in breach of Regulation 8(1) in that he failed to inform the Respondent orally of his right to consult a solicitor and to have notification of his being in custody sent to another person reasonably named by him. The Member in Charge did hand over a notice to the Respondent which contained information as to his rights. The charge was dismissed by the District Judge on grounds including this ground. On an Appeal by way of case stated, having considered the Custody Regulations, statutory provisions and case law Budd J. upheld the appeal. In the course of his Judgment he considered all of the submissions made on behalf of the Respondent including submission that the trial Judge must be entitled to consider the particular nature of the breach of the Custody Regulations and the explanation offered for this by the Member in Charge. In the course of his Judgment he stated, inter alia , as follows:-

“All this is correct but, on the basis of the impression made on him by the evidence, the District Judge must go on to apply the law as set out in section 7 and the cases cited by adjudicating as to what impact the non-compliance with the regulations has had on the case for the prosecution. I should add that there is no suggestion in the case stated that the District Judge formed the view that he was dealing with a conscious and deliberate violation of the Respondent’s right or of the Custody Regulations or that reprehensible or oppressive behaviour on the part of the Garda tainted the entire prosecution case. Accordingly, on this issue, in view of the words of the statute and the statements of O’Hanlon J. and Blayney J. in respect of the case law it seems to me that there was no actual adjudication on the impact of the breach of the Regulations on the admissibility of the evidence subsequently obtained against the accused and that, accordingly, the learned District Judge was wrong in dismissing the charge on this basis. I should add that it would be for the District Judge to make such findings as are appropriate in light of the guidelines and quoted statements as to the law and then come to his conclusion in the light of his findings made in accordance with the law.”

15. It is submitted by Counsel on behalf of the Director that in applying the principles to the facts of the present case, it is clear that when a breach of the Custody Regulations occurs in any given case there is a duty on the District Judge to form a view as to what effect, if any, this has had on the prosecution case. In the present case it is submitted that the failure on the part of Garda Powell to comply with the Custody Regulations did not, of itself, result in the specimen being taken. The Respondent was under a duty to provide the specimen, and the oral notification to him of his right to have a solicitor or another person notified of his presence in the Garda Station would not have affected this obligation. It is submitted that it is difficult to envisage how the Respondent could have been prejudiced by the failure to orally inform him of his rights in those circumstances.

16. It is further submitted that the District Judge did not adjudicate on the impact of the breach of the Custody Regulations on the Respondent, as he is required to do under the statutory provisions and the case law cited.

17. In light of these submissions it is submitted that I should answer the first question posed in the negative and, with regard to the second question, that this is not a proper question of law for the opinion of the High Court, and without prejudice to this submission, it should be answered in the negative.

18. Reliance is placed by Counsel for the Respondent upon the decision of the Supreme Court in the case of Keating -v- The Governor of Mountjoy Prison [1991] 1I.R.61 where McCarthy J. stated, inter alia , at page 66 of the report:-

“If cases arise where the circumstances of arrest are such as to amount to an affront to the constitutional role of the courts, then the District Justice will refuse to proceed with the matter and will discharge the person before him.”

19. In the course of his judgment McCarthy J. stated, inter alia, at page 65 of the Report as follows:-

“In the course of the hearing a Justice of the District Court or a Judge of the Circuit Court, in an appropriate case, is bound to enquire into the circumstances under which particular evidence was obtained and may rule against the admission of such evidence if satisfied that it was obtained in circumstances involving a breach of constitutional rights such as to taint the evidence itself.”

20. Counsel for the Respondent has further made reference to the right of an accused person not to incriminate himself/herself. He submits that the conduct of the Gardaí in this case amounts to an outrage.

21. It was further submitted on behalf of the Respondent that in reaching his decision in this case, the judge of the District Court did so in exercise of his constitutional duty as a judge and in so doing must be considered as having

“a sole and exclusive authority to control and supervise the conduct of proceedings in his own Court within the limit of the jurisdiction conferred upon him.”

22. In this regard Counsel has adopted the language of Gannon J. in the case of case of Clune -v- Director of Public Prosecutions [1991]ILRM 17.

23. In the course of his Judgment in that case Gannon J. stated, inter alia , as follows:-

“Many of the procedures which were appropriate to the circumstances when the inferior Courts where administered by lay magistrates have been adapted and adopted in relation to our District Court now administered by fully competent and qualified lawyers, whose independence as judges, not only from the executive but even from their judicial colleagues, must be respected. The Justice sitting in the District Court has the sole and exclusive authority to control and supervise the conduct of proceedings in his own Court within the limits of the jurisdiction conferred upon him. His independence and authority are secured in his freedom not only from pressures of political or executive nature but also from purported intervention, direction, or control by any Superior Court. If he should be in error it is the interests of the parties to the suit, whether the public or private individual, which require the error to be corrected.”

24. Further reference was made to the decision of Kinlen J. in the case of D.P.P. -v- Dempsey (Unreported, High Court 2/7/1997).

25. With regard to the requirement that the Courts uphold their procedures, further reliance is placed by Counsel for the Respondent on the case of the Director of Public Prosecutions -v- Shaw [1982] I.R.1 where at page 61 of the Report Griffin J. stated, inter alia, as follows:-

“Even if his statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the Judge presiding at a Criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if , by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as a recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness.”

26. It is submitted on behalf of the Respondent that in the instant case the minimum essential standards were not observed by the Gardaí and that this therefore entitles the Judge of the District Court to dismiss the charge against the Respondent. It is submitted that the constitutional rights of the Respondent were affected by the action of the Gardaí in this case in breach of, firstly, his right to silence and, secondly, his right to a solicitor.

27. In reply, counsel for the Director of Public Prosecutions submitted that in the first place the right to silence is not absolute and that in the instant case nothing stems from that right. It is further submitted that the right to a solicitor, if breached, was not such as to give rise to the obtaining of any evidence in breach of that right.

Conclusions
28. This Court has been furnished with a copy of the Custody Record in the form of an Annex to the case stated. While it shows at paragraph (C) under the heading “Initial Action Taken”, 22. ‘Information given to arrested person in accordance with Regulation 8(1). Time 4.48 a.m.’, it appears that the figure 8 may have been changed from an earlier time and in regard to the contents of paragraph 23, ‘Notice of rights. Time 4.59 a.m.’ the time specified appears to represent a change from an earlier time. It is to be noted that these changed times have not been initialled, which would be a preferable practice, if there had been an inaccuracy in regard to the original time when these matters where noted.

29. Nevertheless in the instant case the learned Judge of the District Court has concluded on the facts that the Respondent had not been handed notice of his custody rights and had not had his rights read out to him or explained to him. In these circumstances it is not for this Court to pass judgment on this conclusion as the same was reached on evidence before the District Court Judge. It is to be noted that the learned Judge of the District Court found the evidence of the Member in Charge to be faulty and unreliable. This Court must accordingly treat this case in light of these findings.

30. While it is clear that the learned Judge of the District Court concluded on the evidence before him that the legal and constitutional rights of the Respondent had not been accorded to him on the night in question, he states that he dismissed the charge in the exercise of his judicial discretion. It is unclear how, in the exercise of his discretion, he came to the conclusion that the evidence in relation to the concentration of alcohol in the urine of the Respondent should be excluded, in circumstances where, under the terms of the Road Traffic Act, it was a mandatory requirement on the Respondent that he furnish a specimen of his blood or urine when requested to do so. What is clear from the case stated in the instant case is that, while O’Hanlon J. stated in Spratt’s case that it is for the court of trial to adjudicate in every case as to the impact of the non-compliance which the regulations should have on the case for the prosecution, the case stated to this Court does not make any finding in relation to the impact of the non-compliance on the case for the prosecution. Before excluding the evidence I am satisfied that a Judge of the District Court would have to be satisfied that the impact of the non-compliance with the regulations was one which had a material effect on the case for the prosecution. In the context of the taking of a statement from a person in custody it is clear that such may be very material but, as in the instant case, where the giving of a sample was a requirement of law, I am not satisfied that the non-compliance with the regulations was such as to have warranted the dismissal of the charge against the Respondent in the circumstances outlined in the case stated. Accordingly I will answer the first question in the negative. With regard to the second question, insofar as the learned Judge of the District Court has in fact stated a case for the opinion of this Court, no circumstance arises for the answering of the question in the manner put forward. Were the District Court Judge to refuse to state a case upon request being made of him pursuant to the provisions of the Summary of Jurisdiction Act, 1857 that decision would itself be reviewable by this Court.

DPP v Albie Lonergan

[2009] IECCA 52

JUDGMENT of the Court delivered on the 8th day of May, 2009 by Kearns J.

On 13th December, 2007 the applicant was convicted in the Central Criminal Court of the murder of his brother, Michael Lonergan, at 58 Baloonagh Estate, Tralee, County Kerry, on 31st December, 2006. The evidence established that shortly after 6 p.m. on the date in question an altercation broke out between the two brothers outside the porch of the dwelling house in question in the course of which Michael Lonergan sustained two stab wounds to the chest and one stab wound to the right thigh as a result of which he died later on the same day. The prosecution sought successfully to lead evidence from a number of people who were present at the said address at the time of the incident and in whose presence the wounded victim made statements in the aftermath of the stabbing. Louise O’Brien, the partner of Emmet Coffey, a brother of the deceased’s wife, told the Court that the two brothers started getting abusive towards each other and were throwing digs at each other. She called for her partner, Emmet Coffey, to come out of the house and separate them. While waiting for Emmet Coffey to come out of the house she saw the applicant throw a knife from his left hand onto the floor and saw Michael Lonergan clutching his side. Michael Lonergan turned to her and said he had been stabbed. His exact words were “the bastard stabbed me”. She also gave evidence that in the immediate aftermath of the incident that her partner Emmet Coffey chased the applicant down the road. At that point Michael Lonergan was lying down in the hallway of the dwelling house and holding his side. Some ten or fifteen minutes later Emmet Coffey returned to the house at which point strenuous efforts were made to staunch bleeding from the wounds sustained by Michael Lonergan. This involved putting pressure on the wound with a tea towel. Louise O’Brien gave evidence that while this was happening, Michael Lonergan said to Emmet Coffey “the bastard stabbed me, my own brother stabbed me”. Louise O’Brien clarified that no other person was involved in the fight with the applicant other than Michael Lonergan.

Emmet Coffey stated in evidence that on returning to the house having chased the applicant, Michael Lonergan said to him “he is after stabbing me, Albie is after stabbing me”. Emmet Coffey stated that Michael Lonergan also asked “did I catch him?. Mr. Coffey believed that the interval between his pursuit of the applicant and his return to the house was within five minutes.

Yvonne Lonergan, the wife of the deceased, also testified that when she went out to the hallway of the house the deceased told her it was the applicant who had stabbed him. Another witness, Jonathan Bentley, was also present in the house when the argument took place. He left the room in which he was sitting to go to the toilet and encountered Michael Lonergan in the hallway. He had his hand on his stomach and he was “all blood”. He caught Michael Lonergan as he was going to fall to the ground. Asked if the deceased had said anything, Mr. Bentley stated that the deceased replied “the cunt stabbed me”.
At the outset of the trial, an objection was raised by counsel for the applicant that only those statements immediately contemporaneous with the stabbing should be admitted in evidence and that statements made some ten or fifteen minutes later, notably that of Mr. Emmet Coffey, should not be regarded as admissible because they did not form part of the res gestae.

Before ruling on this objection, the learned trial judge conducted a voir dire examination of each of the aforementioned witnesses. As a result of a measure of agreement between the prosecution and the defence, the proposed evidence to be given by the various witnesses was edited and limited to that outlined above. The prosecution argued that all of the statements made by the deceased, which clearly identified the applicant as his assailant, were admissible as forming part of the res gestae, including statements made by the deceased some ten or fifteen minutes after the stabbing incident.

Following lengthy submissions involving much citation of relevant case law on the topic, the learned trial judge ruled that all of the statements of the deceased were admissible. That ruling is the first matter giving rise to the present appeal.

A separate ground of appeal arises from the fact that on the fourth day of the trial the foreman of the jury brought to the attention of the learned trial judge that an issue had arisen over the weekend. It transpired that one of the members of the jury had been approached by an unidentified party in a public house and was told by this party to “make the correct decision”.
On being advised of this matter, the learned trial judge conducted a discussion initially with counsel in the absence of the jury. The jury was then recalled and a request was made of the juror to identify himself which he duly did. At this stage the juror recounted the circumstances whereby he was in his local pub, was going to the bathroom and got tapped on the shoulder by a gentleman who was unknown to him and who said “I hope you make the proper decision next week”. The juror protested saying that the individual had got “the wrong guy”. Asked if he was intimidated by this approach, the juror responded “no”. There then followed a question advanced by the trial judge as follows:
“It is very good of you to bring it to our attention. It is, dare I say it, one has heard of more serious approaches, if you like. And if I may say so you seem to be, you weren’t put in fear or anything?
JUROR: No
JUDGE: I must ask you this. You have taken an oath to try this case on the evidence and not on any other basis. It is a perfectly human reaction for you, and for all of you, that this might, might perhaps subconsciously even, taint your view of the case one way or another. And it is to be presumed, of course, that you will act in accordance with your oaths. But I wonder do you feel, some people would feel that they might have been tainted by it and are prepared to say they would be. Do you feel you can continue this case purely on the evidence and excluding from your mind any, how should we put it, sinister implications?
JUROR: Yes, your honour”
The defence contended that the form of the question put by the trial judge invited only a positive response and that the judge effectively led the jury and the individual juror in question into the position whereby they and he were left with no real alternative other than to affirm the position as presented by the learned trial judge.

In response, counsel for the prosecution submitted that the approach of the trial judge to the issue of one of the members of the jury being approached was appropriate and correct. Specifically, counsel for the prosecution pointed out that the applicant’s counsel did not seek the discharge of the jury, but simply requested that the trial judge would insure that the applicant had a fair trial, stating: “That is as far as I wish to go”.
Mr. Denis Vaughan-Buckley, senior counsel for the respondent, argued that the learned trial judge had applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, in that he applied the objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial.
SPONTANEOUS DECLARATIONS/RES GESTAE
The prosecution sought the admission of the various statements made by Michael Lonergan on the sole basis that the same formed part of the res gestae and as such were admissible as evidence of the truth of their contents. The prosecution did not seek their admission as “dying declarations” or on any other basis.

It is well established in Irish law that spontaneous declarations constitute an exception to the hearsay rule. As McGrath Evidence (Thomson Roundhall, 2005) makes clear at para. 5-53:-
“Statements concerning an event in issue, made in circumstances of such spontaneity or involvement in an event that the possibility of concoction, distortion or error can be disregarded, are admissible as evidence of the truth of their contents. The rationale for the admission of this category of out of court statements is evident from the formulation of the exception – they are made in circumstances where the declarant’s mind is so dominated by a startling or overwhelming event that the statement is a spontaneous and instinctive reaction, made without any opportunity for the declarant to devise a false statement.”
The test for admissibility was formulated by the decision of the Privy Council in Ratten v. R [1972] AC 378 where Lord Wilberforce stated at p.389:-
“The test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction. This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and differences in location being relevant factors but not, taken by themselves, decisive criteria. As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded. Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it.”
The approach outlined by Lord Wilberforce in Ratten was later endorsed by the House of Lords in R v. Andrews [1987] AC 281. Lord Ackner set out the relevant principles in the following manner at p.300 to 301:-
“1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event …
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely … malice …
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error … In such circumstances the trial judge must consider whether he can exclude the possibility of error.”
The principles as thus enunciated were subsequently applied in R v. Carnall [1995] Crim. L. R. 944 where statements made by the deceased more than an hour after he had been attacked, badly beaten and stabbed were held to have been properly admitted notwithstanding the lapse of time. In delivering the judgment of the Court of Appeal, Lord Taylor C.J. stated:-
“We do not consider that the time factor, in regard to when a statement claimed to be part of the res gestae, is made, is conclusive. That much appears from the passage we have quoted from Lord Ackner (in R v. Andrews [1987] AC 281). We also note that in R v. O’Shea (CA 24.7.86) the period which had elapsed before the statement in question was made after the event was of the order of an hour. Although it is true that the issues in that case were different, the lapse of time does show that it is not necessary that the evidence claimed to be part of the res gestae should have occurred at, or within minutes of, the event which precipitated it. It must be a matter for the trial judge in any given case to look at all the circumstances. The crucial question is whether there is any real possibility of concoction or distortion, or whether the judge feels confident that the maker of the statements was at the time dominated in his thoughts by the event which had occurred so that what he said could be regarded as unaffected by ex post facto reasoning or fabrication.”
The leading Irish authority on this aspect of res gestae is the decision of this Court in The People (at the suit of the Attorney General) v. Crosbie [1966] IR 490. In that case the appellants C. and M., together with two other accused were charged with the murder of C.N.M. The charge arose out of a fight which developed at the “read” room at the Dublin Docks in the course of which C.N.M. was stabbed by C. Within a minute of being so stabbed, C.N.M. said when C. (but not any of the other accused, on the evidence) was standing near him – “he has a knife, he stabbed me”. The appellants were convicted of the manslaughter of C.N.M. On an application by both of them for leave to appeal against conviction it was held by this Court that the words spoken by C.N.M. were admissible against all the accused, although it was hearsay evidence, because it formed part of the criminal act for which the accused were being tried.

In delivering the judgment of the Court, Kenny J. stated as follows at p.496:-
“The Court is of opinion that evidence of the statement made by Noel Murphy immediately after he had been stabbed by Crosbie was admissible in evidence against all the accused, although it was hearsay, because it formed part of the criminal act for which the accused were being tried or for those who prefer to use Latin phrases, because it formed part of the res gestae.”
Having considered a number of English authorities, including DPP v. Christie [1914] AC 545 and Teper v. R [1952] AC 480, Kenny J. stated at pp.497 to 498:-
“The words spoken by Noel Murphy were spoken within one minute of the stabbing. They related directly to the incident which was being investigated (the stabbing), and they were spoken immediately after it. If the words of Lord Normand are adopted, the words were so clearly associated with the stabbing in time, place and circumstances that they were part of the thing being done and so an item or part of real evidence and not merely a reported statement.”
In Teper v. R, Lord Normand had stated at pp.486 to 487:-
“… The rule against the admission of hearsay evidence is fundamental … Nevertheless, the rule admits of certain carefully safeguarded and limited exceptions, one of which is that words may be proved when they form part of the res gestae … It appears to rest ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement.”
In the present appeal, counsel for the applicant has argued that the trial judge went further than this Court had done in Crosbie because he took a “composite approach” to the issue which adopted law evolved in England and which appeared to be premised on the possibility of concoction or fabrication as the ultimate test rather than contemporaneity.

However, this Court does not see the decision in Crosbie as being in conflict with the decision of the Privy Council in Ratten v. R or the decision of the House of Lords in R v. Andrews albeit that those decisions carry the reasoning in Crosbie somewhat further. The Court is satisfied that the more evolved formulation of principle set out by Lord Ackner does no more than elaborate the rationale for the views expressed in Crosbie. The composite approach adopted by the trial judge which gave due weight to both the requirement of contemporaneity and the possibility of concoction or fabrication, appear to this Court to represent the correct approach to this issue. It would be quite wrong to hold that admissibility should be determined by reference solely to a given time period as to do so would lead to arbitrary and unfair results. Time in this context is an important factor but not a determinant. The true importance of the requirement of contemporaneity is to eliminate the possibility of concoction. Where it is clear that no such opportunity existed on the facts of a given case it would be quite wrong to exclude statements on some arbitrary time basis. It is more a matter of factoring in both components when deciding whether or not to admit such statements as part of the res gestae. In every case the trial judge will have to exercise his discretion having regard to the particular circumstances of the case.

In the instant case it was never put or suggested to any of the witnesses that the statements as having been made by the deceased were not in fact so made. No alternative version of events or no other possible perpetrator was possible on the prosecution evidence other than that the applicant had killed his brother. No motive for concocting or fabricating evidence was suggested to any of the witnesses, nor was any evidence led by the defence to supply any such motive. Furthermore, counsel for the applicant has not really challenged the admissibility of the statements made by the deceased in the immediate aftermath of the stabbing. The challenge is effectively confined to the statements made by Michael Lonergan following the return of Emmet Coffey to the dwelling house following his chase of the applicant down the street.

The Court is entirely satisfied that the statements made some ten minutes after the stabbing were correctly admitted. They formed part of the same transaction, were sufficiently contemporaneous, and furthermore the Court is satisfied that there was no opportunity on the part of Michael Lonergan to concoct or fabricate an explanation, and indeed no motive for his having done so was ever identified.

The Court is of the view therefore that this ground of appeal must fail.

INTERFERENCE WITH THE JURY
The other ground of appeal, namely, that the trial judge should have discharged the jury because of possible interference with a member of the jury, can be quickly dealt with.

In the view of the Court, the learned trial judge applied the correct test as set out in the decision of The People (at the suit of the Director of Public Prosecutions) v. Mulder [2007] 4 IR 796, being an objective test as to whether a reasonable person would have a reasonable apprehension that the accused would not in the circumstances receive a fair and impartial trial.

The factual situation in the instant case is very different from that pertaining in DPP v. Mulder. The latter involved a culmination of a number of incidents:-
(a) At the arraignment in front of the jury panel the deceased’s brother shouted from the public gallery.

(b) At that stage the judge questioned the deceased’s brother in relation to the shouting and he stated that it was just his reaction at seeing his sister’s husband who had allegedly strangled her.

(c) On the third day of the trial, prosecution counsel applied for an order excluding the deceased’s brother and his wife from court while the evidence continued, due to concerns by the gardai as to the behaviour of the deceased’s brother and his wife in court.

(d) The note from the foreman of the jury stated that the deceased’s brother was making himself “familiar” with some members of the jury.

(e) After the trial judge’s request to the foreman to ascertain the correct facts, the foreman addressed the court and referred to the outburst at the arraignment by the deceased’s brother, and stated that while the jury were waiting in the corridor outside the court, the deceased’s brother borrowed one of the juror’s newspaper and read out an article referring to the outburst indicating that this was him.

(f) The foreman stated that the juror felt that the deceased’s brother was familiarising himself with him and at the end of that day he greeted the juror with a smile and a nod.

(g) He further stated that the juror in question felt somewhat intimidated and uncomfortable.

(h) When the juror was questioned by the judge there was a conflict in his answers from that which the foreman had reported.
In delivering the judgment of this Court in Mulder, Geoghegan J. stated at p. 806:-
“While courts should be reluctant to discharge a jury because of individual incidents involving communication with a juror, the nature of this intervention and the cumulative effect of the incidents and the conflict to some extent in the reports given to the judge would have all led an observer to be concerned that there would be a risk of an unfair trial.”
No such problems arise in the instant case. The incident consisted of a simple remark or approach made in a public house which had no effect on the juror in question. No objection was taken to the form of the enquiry made by the learned trial judge and no objections were raised to any of the questions raised by the learned trial judge in that context. The Court is satisfied that the learned trial judge conducted the enquiry in question in an entirely appropriate manner and that any suggestion that he coerced or indicated that the jury should respond to his questions in a particular manner is completely unfounded.

The Court would dismiss the appeal on this ground also.

 

Director of Public Prosecutions v. O’Kelly

, High Court, February 11, 1998.

Judgment of Mr. Justice McCracken delivered on the 10th day of February, 1998.

1. This is a case stated by Judge Desmond Windle pursuant to Section 2 of the Summary Jurisdiction Act, 1857 on 12th February, 1996. It concerns a very net point regarding evidence of compliance with the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987.

2. The Respondent in the present case was arrested under Section 49(8) of the Road Traffic Act, 1961, and was subsequently charged under Section 49(2) and Section 6(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994. At the hearing before District Judge Windle the solicitor for the Director of Public Prosecutions requested an adjournment to enable Sergeant Kenny, the member in charge of the relevant Garda station, to attend Court. The adjournment was refused by Judge Windle. The case proceeded, and Garda Lynn, the prosecuting Garda, gave evidence that he heard Sergeant Kenny tell the Respondent why he had been arrested, that he had a right to call a solicitor or other person and that he might exercise these rights at any time. He further stated that a notice of rights for persons in custody was given to the Respondent.

3. At the close of the prosecution case, the Respondent’s solicitor submitted that Garda Lynn’s evidence in relation to the Custody Regulations was inadmissible, as it was hearsay evidence, and that accordingly there was no evidence that the Regulations had been complied with and that the Respondent had been given the necessary information. The District Judge accepted this submission and held there had been a failure to prove compliance with the Regulations.

4. At the request of the Appellant, District Judge Windle sought the opinion of this Court on the following questions:-

“(a) Was I correct in law in holding that the evidence of Garda Lynn as to compliance by Sergeant Kenny with the Regulations was hearsay?
(b) If the answer to question (a) be in the affirmative, was I correct in law in holding that the evidence of Garda Lynn, being hearsay, did not fall within any exception to the rule against hearsay as set out in the within case stated?
(c) If the answer to question (a) and question (b) be in the affirmative, was I correct in law in holding for the reasons set out in this case stated that I should exercise my discretion as to whether to admit the evidence gathered pursuant to Section 13 of the Road Traffic Act, 1994 in favour of the Respondent?”

5. What the Regulations require is that certain information must be given to an accused person on his arrest, and he must be given a written document setting out his rights by the member in charge of the relevant Garda station. Counsel for the Respondent submitted that this imposed an onerous duty on the member in charge, and that he must be satisfied that the accused understood his rights, as the purpose of the Regulations is to ensure that the accused is aware of his rights. I do not accept that this is a correct analysis of the situation. The Regulations require that the accused be informed of his rights, whether he understands them or not, and the essential proof at the hearing is that he was so informed. In my opinion, all that is required is that the relevant information is given to the accused, and the relevant notice is handed to him.

6. That being so, the only evidence that was required to be given was that the words were spoken and the notice handed over. Garda Lynn heard the words spoken in the presence of the accused and saw the notice being handed over. He was entitled to give evidence of these facts, and he did so.

In Curran -v- Clarke , (1963) I.R. 368 at page 378 Kingsmill Moore J. said in relation to hearsay evidence:-

“The actual question put and the objects for which it was put in each case has to be considered. In view of some of the arguments addressed to the Court, it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay.”

7. He then continued further in the page:-

“The utterance of the words may itself be a relevant fact, quite apart from the trulonerth or falsity of anything asserted by the words spoken. To prove, by the evidence of a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay.”

8. It appears to me that is the situation in the present case, is that there was sufficient evidence before the Court that the Respondent had been given the necessary information pursuant to the custody Regulations.

9. Accordingly, I would answer question (a) posed by the learned District Judge as “no”, and the other two questions, therefore, do not arise.

Director of Public Prosecutions v. Dempsey

High Court, July 2, 1997, Kinlen J.
Judgment of Mr. Justice Kinlen delivered the 2nd day of July, 1997

1. This is a case stated by Judge Timothy H. Crowley sitting at Dun Laoghaire District Court in the County of Dublin and the Application in writing of the Appellant, Garda Maurice Sheridan through the D.P.P. for the opinion of the High Court as to whether the learned Judge of the District Court was erroneous in points of law or not.

2. The case stated reads as follows:-

“1. At the sitting of the District Court at Dun Laoghaire District Court on the 20th April, 1995, the Respondent appeared before me to answer the accusation of the Director of Public Prosecutions, at the suit of Garda Maurice Sheridan, that the said Peter Dempsey on the 10th December 1994 at Ulverton Road, Dalkey, within the Dublin Metropolitan District, being the user of a mechanically propelled vehicle, registered number 7580 DI, did give to a member of the Garda Siochana, namely Garda M. Sheridan an address which was misleading when such address was demanded of him under Section 107 of the Road Traffic Act 1961, as amended, by the said member of an Garda Siochana, contrary to Section 107 of the Road Traffic Act 1961, as amended by Section 3 of the Road Traffic (Amendment) Act 1984, and secondly, that the said Peter Dempsey on the 6th November 1994 at Summerhill Parade within the Dublin Metropolitan District drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours of so driving the concentration of alcohol in his blood exceeded a concentration of 100 millilitres of alcohol per 100 millilitres of blood, contrary to Section 49 (2) and (4) (a) of the Road Traffic Act 1961, as inserted by Section 10 of the Road Traffic (Amendment) Act 1978, as amended by Section 3 of the Road Traffic (Amendment) Act 1984.

The second charge was amended so as to read “Summerhill Road”, instead of “Summerhill Parade” and so as to insert the registered number of the mechanically propelled vehicle as 7850 DI.

The Prosecution was represented at the said hearing by Mr. David Rafferty, Solicitor, of the Office of the Chief State Solicitor, and the Respondent was represented by Mr. Ronald Lynam, Solicitor, of Partners at Law, Solicitors, 8 Adelaide Street, Dun Laoghaire, County Dublin.

2. The facts proved or admitted were as follows:-
(a) Garda Maurice Sheridan, a member of An Garda Siochana, stationed at Dun Laoghaire, was on uniformed duty as observer in the Dun Laoghaire Patrol Car on the 6th November 1994. While driving along Summerhill Road, a public place, at approximately 9.23 p.m. he observed motor car 7580 DI driving in the middle of the road towards Dun Laoghaire. He put on the blue light and signalled the driver to stop. The driver did so. The driver got out. He was unsteady on his feet. Garda Sheridan spoke with the driver who gave his name as Peter Dempsey of 3 Martello Avenue. During his conversation with the Respondent, Garda Sheridan noticed that there was a strong smell of intoxicating liquor from his breath and his speech was slurred.

(b) Garda Sheridan formed the opinion that the Respondent has consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. He told him this and that he was arresting him under Section 49(6) of the Road Traffic Act 1961 as amended. Garda Sheridan explained that the Respondent was being arrested for drunken driving. The arrest took place at 9.25 p.m. and was for an offence under Section 49(1), (2) or (3). He had the Respondent conveyed to Dun Laoghaire Garda Station, arriving there at 9.30 p.m.

(c) Garda Sheridan contacted Dr. Hooper at 9.32 p.m. and he arrived at the Station at 9.46 p.m. He brought the Doctor and the Defendant to the Doctor’s Room at the Station where he introduced the Doctor to the Defendant as the designated registered medical practitioner and explained that he was the Garda Doctor.

(d) At 9.49 p.m. he required the Respondent, pursuant to Section 13(1)(b) of the Road Traffic (Amendment) Act 1978 to permit the Doctor to take from him a specimen of blood or at his option to provide for the Doctor a specimen of his urine.

He warned the Respondent that to refuse or fail to comply with his requirements was an offence and he outlined the penalties. At 9.50 p.m. the Respondent opted for urine and he handed a sealed box marked “U” and sealed jug to the Doctor. The Respondent was unable to provide a sample. Garda Sheridan gave the Respondent the option against at 9.55 p.m. The Respondent then opted for blood. The Respondent provided a sample of blood at 9.56 p.m. The provisions of Section 21 of the Road Traffic (Amendment) Act 1978 were complied with. The Respondent was released at 9.57 p.m.
(e) Garda Sheridan had the specimen posted by registered post to the Medical Bureau of Road Safety on the 7th November 1994 and he had a receipt from the Marine Road Post office. On the 9th November 1994 he received a certificate from the Bureau Certifying that the specimen in question had a concentration of 180 milligrams of alcohol per 100 millilitres of blood.

(f) On the 25th November 1994 Garda Sheridan received a letter from the Medical Bureau of Road Safety stating that they were unable to effect service of the certificate on the Respondent.

On the 10th December 1994 Garda Sheridan was on duty and observed motor car 7580 DI driving along Ulverton Road, Dalkey. He stopped the vehicle and demanded the production by the driver of his driving licence and certificate of Insurance. The driver had not got them with him and he gave his name as Peter Dempsey of Ardbrugh Road, Dalkey. This was the same man that Garda Sheridan had arrested for drunken driving on the 6th November 1994 at 9.25 p.m. Garda Sheridan queried him about this address and he stated that he used Ardbrugh Road as a business address. Garda Sheridan stated that he also mentioned a Guest House. Garda Sheridan then said that the Respondent had given him a misleading address and he arrested him for same.

(g) Garda Sheridan brought the Respondent to Dun Laoghaire Station where the Respondent informed him that the name and address given on the first occasion were correct. He was charged on Dun Laoghaire Sheet 734/94 with the charges referred to at paragraph 1 above. The Respondent was released on £100 cash bail and was remanded to Dun Laoghaire Court on the 16th January 1995 at 10.30 a.m. for hearing. Before being released Garda Sheridan served the Respondent with his copy of the certificate relating to the offence contrary to Section 49(2) of the Road Traffic Act on the 6th November 1994.

(h) Garda Sheridan confirmed that he was present when the Member in Charge at the Garda Station was taking all of Mr. Dempsey’s details and also confirmed that the custody regulations 1987 had been complied with.

(i) Garda Sheridan handed into Court the certificate of posting, the Doctor’s certificate and the Medical Bureau’s certificate, which was examined by the Defence.

(j) In cross-examination Garda Sheridan accepted that the Respondent had a hut at Ardbrugh Road.

3. Further, it was accepted that shortly after the 12th January 1995, Garda Sheridan received a letter, dated the 12th January 1995, addressed to him at Dun Laoghaire Garda Station from Ronald Lynam, Solicitor for the Respondent. This letter, inter alia, requested Garda Sheridan to provide to Mr. Lynam all statements of evidence and exhibits upon which the Prosecution proposed to rely. It further stated that Mr. Lynam would be obliged if Garda Sheridan would furnish him with copies of Custody Records applicable to the Prosecution. Garda Sheridan did not comply with the requests set out in the letter and indicated that he had sent this letter to the Chief State Solicitor’s Office.

4. A further letter of the 20th January 1995, addressed to the Chief State Solicitor’s Office was put to Garda Sheridan. Garda Sheridan stated that he had not been aware of the existence or contents of that letter. This letter referred to the Prosecution scheduled for hearing before Dun Laoghaire District Court on the 3rd March following, indicating that Garda Sheridan had been requested to provide copies of all statements of evidence and exhibits and further that he had been requested to provide copies of the Custody Record, and that letter expressly differentiated between the requests for the statements of evidence and exhibits which Mr. Lynam, Solicitor, appeared to be aware were the subject matter of a decision entitled ” D.P.P. -v- Gary Doyle ” and the copies of the Custody Records.

5. A further letter dated the 10th February 1995 from Mr. Lynam, addressed to the Chief State Solicitor, was then put to Garda Sheridan, who indicated that he had not been made aware of that letter nor of its contents. This letter constituted a reminder in respect of the letter of the 20th January and appeared to have enclosed a copy of that letter for the information of the Chief State Solicitor.

6. A further letter was then put to Garda Sheridan, dated the 21st February 1995, from the Chief State Solicitor to the Solicitor for the Respondent. That letter referred to a date, 16th January 1995, when the matter had been listed for mention in Dun Laoghaire District Court and it referred to a request by Mr. Lynam to Mr. Daly, Solicitor, of the Office of the Chief State Solicitor, for copies of relevant statements etc. and to the fact that Mr. Daly had refused to provide same. A reference was then made to the failure to make any subsequent application to Judge Kirby for the furnishing of the relevant statements etc. The letter concluded by informing the Solicitor for the Respondent that the Prosecution would not be furnishing him with copies of all items requested in the letter of the 20th January 1995.

3. Copies of the said letters are annexed to the within Case Stated and form part thereof.

4. Mr. Rafferty, Solicitor, indicated upon enquiry that he did not require formal proof of the said correspondence.

7. At the close of the prosecution case it was submitted on behalf of the Respondent that a specific request had been made for copies of all relevant custody records in the case and that it has been specifically pointed out to the Prosecution that such a request was separate from the not related to the request for statements of evidence and exhibits. It was accepted by Mr. Lynam on behalf of the Respondent that the case of D.P.P. -v- Gary Doyle (1991) IR provided that in a prosecution such as that before me there was a discretion in the Trial Judge to direct that copies of all statements and exhibits be provided to a Defendant. Mr. Lynam relied upon Article 24(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 . He submitted, that the two letters written to the Chief State Solicitor and the letter written to Garda Sheridan had been met with a conscious and deliberate refusal to make any documentation whatsoever available, including the matter to which he was entitled as right.

5. Mr. Lynam referred me to the Judgment of Mr. Justice O’Hanlon, delivered on the 8th February 1995, in the case of the D.P.P. -v- Eric Spratt . He submitted that there had been a deliberate refusal by the State to make the custody records available, which had denied the Defence access to documentation which was directly relevant to the prosecution of the offences before the Court and materially affected the preparation of the defence case.

6. Mr. Lynam also referred to the decision of the High Court in the State (Walshe) -v- Murphy (1981) IR 275 and to other relevant decisions regarding a failure on the part of the State to make available, upon request, a copy of the Medical Bureau’s Certificate.

7. He submitted that the Court had a discretion to dismiss the matters, following the authority of D.P.P. -v- Eric Spratt . He submitted, therefore, that the Court should dismiss the charge. He further argued that where there had been a conscious and deliberate breach of the Respondent’s rights, the Application to Dismiss was even more compelling.

8. Mr. Lynam’s second submission related to the fact that the Respondent gave a blood sample after opting for, but being unable to give a urine sample, and this second submission was rejected by me.

8. In reply, Mr. David Rafferty, Solicitor, argued that the letter from the Chief State Solicitor’s Office referred to material covered by the decision in D.P.P. -v- Gary Doyle only. It had to be seen in context where the Defence had previously sought the Gary Doyle material and had been refused same, in the conversation refer to in the said letter. In addition that letter was dated the 21st February 1995, and the Defence had done nothing since. The case had been listed in Court on the 3rd March and no application had been made to the Court for the documentation in question. The Defence could have sought this material prior to the hearing.

9. Mr. Rafferty also submitted that the cases referred to above by the Defence dealt with the Bureau Certificates and Doctor’s Certificates and not Custody Records.

10. Finally it was submitted that any breach of the Regulations would have to be material to justify a dismissal of the charges brought.

9. I made the following further finding of fact:-

1 (1) The Defence had made all proper and reasonable requests for a copy of the custody records as per the correspondence submitted in evidence and that there was no obligation on the Defence to make application to the Court for a document to which it was entitled as a right.

(2) The letter from the Chief State Solicitor, dated 21st February, 1995 to the Solicitor for the Respondent, was a conscious and deliberate refusal on the part of the State to make the custody records available to the Defence. This was a fundamental breach of Article 24(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987.

10. I was satisfied on the evidence that there was not only a breach of the Custody Regulations but a conscious and deliberate breach and that as a consequence I was entitled pursuant to the decision in the case of D.P.P. -v- Eric Spratt to exercise my discretion in favour of the Defence. I was further satisfied that if I were to convict the Defendant of the charges before me, such conviction must be dependent upon there having been compliance with the basis requirements of natural justice. I was satisfied that not only had there not been compliance with the basic requirements of natural justice on the part of the State but that the lack of compliance had been material and had been brought about by a deliberate act or omission on the part of the Prosecution and that as a consequence a conviction could not be sustained. In the light of those circumstances I dismissed the charges before me.

11. The Appellant herein, being dissatisfied with the said determination in point of law, has requested me to state for the opinion of the High Court the following question:

(1) Whether, in light of the aforesaid findings in relation to the breach of Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, and/or the non compliance on the part of the State with the basic requirements of natural justice which had occurred in the present case, I was correct in law in holding that I was entitled to dismiss the charges brought against the Respondent?

11. Dated the 10th day of January, 1995.

_________________________
TIMOTHY H. CROWLEY
JUDGE OF THE DISTRICT COURT .”

12. Ms. Adrienne Egan, Barrister at Law appeared on behalf of the State, made a written and oral submission. The case was very fully argued before me by Ms. Egan for the D.P.P. and Mr. McDonagh for Mr. Dempsey. In argument the following cases were opened in addition to the cases mentioned in the Case Stated, namely, Walshe -v- D.J. O’Boachalla , 1991, 1 I.R. 56, The State (O’Regan) -v- District Justice Plunkett , 1984, I.L.R.M. 347, Clune -v- D.P.P ., 1981, I.L.R.M. 17, Sweeney -v- District Judge Brophy , 1993, I.R. 202, Healy -v- O’Donoghue , 1976, I.R. p. 325 at 348. In the case of Walshe -v- District Justice O’Boachalla , 1991, 1 I.R. 56, Blayney J. summarises the need and position which follows:-

“That evidence obtained following a deliberate and conscientious breach of an accused person’s constitutional rights must be excluded only if it had been obtained as a result of that breach. In the absence of a causative link between the breach and the obtaining of evidence such evidence was admissible ( The People (D.P.P.) -v- Healy , 1992 I.R. 73) and ( The People (D.P.P.) -v- Shaw , 1982 I.R. 1, considered).”

13. If I might quote from Gannon J. in Clune -v- D.P.P ., 1981 I.L.R.M. p. 17 at p. 19:-

“These applications raise very serious and important issues in relation to the powers and functions of this Court. The arguments in support of them are founded almost exclusively upon the duty, as alleged, of all Courts to respect and apply the principles of justice and fairness in procedure adumbrated in In Re. Haughey, 1971 I.R. 217 and in The State (Healy ) -v- O’Donoghue, 1976 I.R. 325 and the duty, as alleged, of this Court to ensure that such procedure will be followed notwithstanding the absence of statutory requirement or regulation in the District Court. The concept of guiding, directing, controlling, supervising or correcting lay magistrates which might have been inferred from proceedings of certiorari and prohibition and mandamus prior to the establishment of the State is not appropriate to the Courts established under our Constitution. The Courts have limited jurisdiction established by legislation pursuant to constitutional authority in that behalf are not in any sense subject to direction, control or supervision by the Superior Courts established by the Constitution. The statutory Courts are ‘inferior Courts’ in the sense only that the range of their jurisdiction is limited and defined by legislation. The Superior Courts are ‘superior’ in the sense only that their authority derives directly from the Constitution and not from the legislature. They are constituted as one Court of unlimited jurisdiction and one of final appeal. The High Court has not only invested but inherent authority to ensure the administration of the law in accordance with the principles of justice and the requirements of the Constitution. It has the capacity and authority to hear appeals from the Courts of limited jurisdiction and also to remedy errors of abuse or excessive jurisdiction by any of such ‘inferior Courts’. Many of the procedures which were appropriate to the circumstances when the inferior Courts were administered by lay magistrates have been adapted and adopted in relation to our District Courts now administered by fully competent and qualified lawyers, whose independence as Judges, not only from the executive but even from their judicial colleagues, must be respected. The Justice sitting in the District Court has the sole and exclusive authority to control and supervise the conduct of proceedings in his own Court within the limits of the jurisdiction conferred upon him. His independence and authority is secure in his freedom not only from pressures of a political executive nature but also from purported intervention, direction or control by any Superior Court. If he should be in error it is in the interests of the parties to the suit whether the public or private individuals which require the error to be corrected.”

14. There is no doubt that in the present case the Justice acted within his jurisdiction.

15. The question must be, did he make an error in the exercise of that jurisdiction which would justify that it was so fundamental as to warrant an Order of Certiorari, the granting of which amounted to an acquittal? Gannon J. in The State (Healy) -v- O’Donoghue , 1976 I.R. p. 325 at the bottom of p. 335 states:-

“Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation to have the matter tried in his presence by an impartial and independent Court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or to call evidence in his defence and to be heard in argument of submission before judgment be given. By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence. The rights I have mentioned are such as would necessarily have a bearing on the result of a trial. In my view they are rights which are anterior too and do not merely derive from the Constitution but the duty to protect them is classed upon the Courts by the Constitution.”

16. In the Supreme Court it is held that the provisions of Article 38 of the Constitution in requiring a criminal trial to be conducted in due course of law imports the requirement of a fair procedure which furnish an accused with an adequate opportunity to defend himself against the charges made. The Solicitor for the Respondent requested statements of evidence and exhibits upon which the prosecution proposed to rely and also copies of the custody records applicable to this prosecution. Garda Sheridan, the prosecuting officer, did not furnish a copy of the custody records but sent the letter to the Chief State Solicitor’s office. The Solicitor sent to further letters to the Chief State Solicitor. Finally, a letter was received by the Respondent’s Solicitor on the 21st February, 1995 stating as follows:-

“The writer was present in Dun Laoghaire Court on the 16th January, 1995 last when you requested from him a copy of the relevant statements etc., and he declined to furnish you with same. The writer noted that you did not subsequently make an application to Judge Kirby for the furnishing of the relevant statements etc. Accordingly, we will not be furnishing you with copies of all items required in your letter of the 20th ult.”

17. At the close of the prosecution case, it was submitted that there had been a conscious and deliberate refusal to make any documentation available to the defence including a copy of the custody record to which the defence was entitled as of right.

18. It is conceded that the State were in breach of the custody regulations by not producing a copy of the custody record upon request by the Solicitor for the Respondent. Normal compliance of the custody regulations does not of itself derive to entitlement on the part of the District Judge to dismiss the charge. Gannon J. states:-

“The phrase ‘of itself’ is obviously an important one in the construction of the statutory provisions and I interpret the subsection as meaning that non-observance of the regulations is not to bring about automatically the exclusion from evidence of all that was done instead by the accused person who is in custody. It appears to be left to the Court of trial to adjudicate in every case as to the impact of the non-compliance which the regulations should have on the case for the prosecution. ”

19. It has been argued verbally by Ms. Egan that the District Judge ought to have applied his mind to the question of what effect that breach had on the Respondent and in particular his ability to meet the charge brought against him. However, he was entitled to see that document and if his lawyers were equipped with it, it might promote several lines of defence. The Court has not seen the relevant custody record nor it is necessary for it to do so. It was previously indicated that the High Court would be very slow to interfere with the learned District Judge in the course of his jurisdiction. He has heard the evidence; he has assessed it; there was evidence to support his findings; the State admit they deprived the Accused of documents to which he was entitled. The fact that an Order was not sought from Judge Kirby but in fact there is nothing prejudicial with his defence and the relevant custody records are both irrelevant. The learned District Judge has obviously given the case considerable attention while another Judge might have come to a different conclusion. He was well within his jurisdiction to come to the conclusion which he did over the evidence produced before him. It is found that the State had non-compliance with the basic requirements of natural justice. In his discretion he was entitled to dismiss the charges brought against the Respondent.

DPP v PA, Court of Criminal Appeal

[2008] IECCA 21 (21 February 2008)
Judgment of the Court delivered on the 21st day of February 2008 by Finnegan J.

The applicant was charged with one count of an offence of making a false statement, contrary to section 12(a) of the Criminal Law Act 1976. The particulars of the offence are that on the 18th June 2003 at Kevin Street Garda Station Dublin he knowingly made a false statement to Detective Garda Brian Kavanagh tending to show that offences of indecent assault and buggary had been committed by a male person during the approximate period of February and May 1981.
The Criminal Law Act 1976 section 12 provides as follows:-
“12. Any person who
(a) knowingly makes a false report or statement tending to show that an offence has been committed, whether by himself or another person, or tending to give rise to apprehension for the safety of persons or property, or
(b) knowingly makes a false report or statement tending to show that he has information material to any inquiries by the Garda Siochána and thereby causes the time of the Garda Siochána to be wastefully employed,
shall be guilty of an offence and shall be liable –
(i) on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or
(ii) on conviction on indictment, to imprisonment for a term not exceeding five years.”

On the 27th April 2003 the applicant made a complaint that he had been sexually abused by a priest. He made a formal statement on the 18th June 2003. The complaint was investigated by Detective Garda Brian Kavanagh and other Gardai and their investigation disclosed numerous discrepancies in details given by the applicant in his statement to the Gardai. These discrepancies were put to him at a cautioned interview on the 18th October 2003 but at that interview he maintained his complaint.
On the 20th March 2004 the applicant was arrested at his parents house when five Gardai in all attended. Following his arrest he was taken to Kevin Street Garda Station. Two Gardai, Detective Garda Kavanagh and Detective Sergeant Walsh, remained behind at his parents’ house and interviewed his mother who at that time was seriously ill. A statement had previously been taken from her and on this occasion a further statement was taken. At this time the applicant’s mother was confined to bed, a bed having been made up for her on the ground floor of the house. Present throughout the interview was the applicant’s sister C. A.
At Kevin Street Garda Station the applicant was advised of his rights and given Form C72S. He requested a solicitor, Mr Hanahoe. He telephoned Mr Hanahoe’s office but not surprisingly this being a Saturday before 10 a.m. there was no answer: he was, however, advised of a mobile phone number which he could ring. He duly rang that number and left a message. Mr Hanahoe returned his call and spoke to the applicant but told him that he would not attend Kevin Street Garda Station.
Thereafter the applicant was interviewed on four occasions, the first, second and fourth interview being recorded on video. For the third interview there was no recording as the interview room in which the video recording equipment was situate and the equipment itself were in use. The applicant denied the offence resolutely in the first two interviews but in the third interview conceded the same. In the fourth interview the entire notes of the third interview were read over to him and he did not demur from the same. Between the second and third interviews the applicant had a visit from his sister.
The trial commenced on the 14th May 2007 and continued until the 5th June 2007. The first five days were consumed by a voir dire concerning the admissibility of the third interview.
In short the submissions on behalf of the applicant on this application were that the third interview was not voluntary because of a number of circumstances which surrounded its conduct and these circumstances as summarised by senior counsel for the applicant are as follows:-
1. The interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the same.
2. The applicant had never previously been involved with the Gardai.
3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint.
4. Interviews 1 and 2 were from 10.39 a.m. to 12.54 a.m. and from 2.12 p.m. to 5.20 p.m., a total duration of five hours fifty three minutes and that this was excessive.
5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997.
The totality of these circumstances it was submitted amounted to oppression. Reliance was placed on dicta of Sachs J. (as he then was) in a note to Martin Priestly [1966] 50. Cr.App.R. 183 at 51 Cr.App.R.1.
“I turn to what was really the main theme of defending counsel’s overall argument, that this was a case where the police had used oppression, or at any rate, if I may put it more exactly, that the prosecution had not disproved the allegation of oppression. Here it is convenient to refer to one short passage of what I said in Priestly. There I mentioned that I had not been referred to any authority on the meaning of the word “oppression” as used in the preamble to the Judge’s Rules, nor would I venture on such a definition, and far less try to compile a list of categories of oppression, but, to my mind, this word in the context of the principles under consideration import something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary…Whether or not there is oppression in any individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world.”

The court has also been referred to a number of Irish authorities. In The People (D.P.P.) v Bernard McNally and Osgur Breathnach, Court of Criminal Appeal, 16th February 1981, Finlay P. said –
“This court accepts with approval the description of oppressive questioning given by Lord McDermott in an address to the Bentham Club and adopted by the criminal division of the Court of Appeal in England in R. v Prager [1972] 56 Cr.App.R.151. In that address Lord McDermott described it as ‘questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hope (such as the hope of release) or fears, and so affects the mind of the subject that his will crumbles when he speaks when otherwise he would have stayed silent.’
This court would adopt with approval the definition of “oppression” in the context of questioning contained in the note of the judgment of Sachs J.(as he then was) in 51 Cr. App. R.1 where he defined it as follows:
“…to my mind this word in the context of the principles under consideration import something which tends to sap and has sapped that free will which must exist before a confession is voluntary…””

Again the court was referred to Shaw v The People (Director of Public Prosecutions) [1982] I.R. 1. In that case in his judgment Griffin J said:
“Since the admissibility of such statements is directly in issue in this case, I think it proper and desirable to express an opinion as to the correct approach to the question of admissibility of such statements. Before such statements are admissible, two conditions must be satisfied by the prosecution.
The primary requirement is to show that the statement is voluntary, in the sense in which that adjective has been judicially construed in the decided cases. Thus, if the tendered statement was coerced or otherwise induced or extracted without the true and free will of its maker, it will not be held to have been voluntarily made. The circumstances which will make a statement inadmissible for lack of voluntariness are so varied that it would be impossible to enumerate or categorise them fully. It is sufficient to say that the decided cases show that a statement will be excluded as being involuntary if it was wrung from its maker by physical or psychological pressures, by threats or promises made by persons in authority, by the use of drugs, hypnosis, intoxicating drink, by prolonged interrogation, by excessive questioning, or by any one of a diversity of methods which have in common the result or the risk that what is tendered as a voluntary statement is not the natural emanation of a rational intellect and a free will. As to the present case, there is no question but that the questioned statements were made voluntarily.

Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it “where it appears to him that public policy, based on a balancing of public interests, requires such exclusion” – per Kingsmill Moore J. at p.161 of the report of O’Brien’s case. This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in the State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience, and vested jurisdiction, are not designed for constitutional interpretation or the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another.”

The court accepts these principles and in the light of the same proposes to look at the individual issues raised on behalf of the appellant and whether individually or cumulatively they affect the third interview and the voluntariness of the admissions made thereat.
1. The Interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the time.
When the applicant was arrested Detective Garda Kavanagh and Detective Sergeant Maura Walsh remained behind and spoke with the applicant’s mother. She had suffered a stroke and was quite ill and died shortly afterwards. The evidence of both Gardai was that Detective Garda Kavanagh sat at the end of the bed and Detective Sergeant Walsh sat on a chair beside the bed holding Mrs A’s hand during the course of taking the statement. The total time for which they remained in the house after the arrest was approximately fifteen minutes. In cross-examination it was suggested that the reason for remaining behind and speaking to Mrs A. was to put pressure on the applicant and this was denied. It was put to the witnesses that C.A. was distressed by the manner in which her mother was being questioned and this was denied. It was put to the witnesses that Detective Garda Kavanagh asked C.A. to call and see the applicant at the Garda Station at approximately 4.30 p.m. because she was close to the applicant and this was denied. C.A. did attend at Kevin Street Garda Station at 4.30 p.m. and later had a meeting with the applicant after which he was upset and crying. Garda Kavanagh’s evidence was that after the meeting C.A. told him that the applicant had told her that he had been telling lies. Almost immediately after that the third interview commenced and the applicant immediately made admissions.
The applicant gave evidence. When speaking to his sister he had decided to admit the offence because he did not want his mother to be further distressed. At the interview on the 18th October 2003 he had been threatened that if he did not admit that he had not been abused his mother and father would go down for a number of years, that they would be sent to prison for five or ten to twelve years. His sister had told him that Detective Garda Kavanagh and Detective Sergeant Walsh had remained behind after his arrest and interviewed his mother and that she was very upset and was crying a lot and was very worried.
C.A. gave evidence. Her mother had died on the 10th May 2004. She was present at the interview of her mother on the 20th March 2004. During the interview she was comforting her mother who was crying. The questioning was constant and she thought it unfair and it annoyed her. Detective Garda Kavanagh and Detective Sergeant Walsh were in the house from 8.45 a.m. to midday. Detective Garda Kavanagh asked her if she could come down to Kevin Street Garda Station at 4.30 and she asked him why and he said because she “was close to the applicant”. She agreed to go down to the Garda Station and attended there at 4.30 p.m. After about thirty minutes she met with the applicant in the detention cell. The applicant was very distressed and withdrawn and was unable to speak for almost five minutes. She told him that her mother and father were very upset over what had happened that morning. After meeting the applicant she was asked by Detective Garda Kavanagh whether the applicant had given any indication that he was going to make a true statement. She then went back and met again with the applicant who told her that he wanted to make a statement to protect his mother and father from going to prison as he had been threatened that they would go to prison for five to ten years. She encouraged the applicant to stick to his original statement. The applicant was distressed and crying. She then had a third meeting with the applicant during which he told her that he was frightened and wanted to protect his mother and father and that he was going to make a statement admitting that he had been lying. In cross-examination she denied that Detective Sergeant Walsh was holding her mother’s hand during the interview. She said that Detective Garda Kavanagh was extremely abusive and aggressive at the interview and as a result she swore at him.
In his submission at the end of the voir dire counsel for the applicant submitted that the invitation to C. A. to attend at Kevin Street Garda Station at 4.30 p.m. on the day the applicant was arrested was a cynical ploy to put pressure on the applicant. The learned trial judge rejected the evidence of the applicant and C.A. She was satisfied on the evidence of the videoed interviews that the applicant was not intimidated or under pressure. She was satisfied beyond a reasonable doubt that the admissions made were voluntary and not in breach of the applicant’s constitutional rights. The suggestion of “a cynical ploy” was not pursued before this court.
2. The applicant had never previously been involved with the Gardai.
The applicant had indeed previously been involved with the Gardai. He had made his initial complaint, he then attended at Kevin Street Garda Station to make a formal statement and further attended for a cautioned interview on the 18th October 2003. This interview on his own account was extremely unpleasant. The Gardai, he claimed, were verbally abusive to him and threatening towards him and towards his parents even though he had attended voluntarily. At the end of the interview he was not permitted to leave but was ordered to remain in the Garda Station for fifteen minutes. However he had never been charged or interviewed in relation to an offence prior to these events.
3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint.
The circumstances which attended this interview on the applicant’s account have already been set out.

4. Interviews 1 and 2 were from 10.39 to 12.35 and from 2.12 to 5.20, a total duration of five hours fifty three minutes and that was excessive.
This is factually correct. However the applicant was given food – a hamburger and chips. His sister brought him a sandwich. While on his own account he did not eat, on his sister’s account he did indeed eat both the hamburger and chips and the sandwich. There was much discussion as to whether he was given access to appropriate medication but he was given medication and had access to a doctor. The first interview lasted from 10.39 a.m. to 12.54 p.m. He was then allowed rest until 2.12 p.m. when the second interview commenced which continued until 5.20 p.m. He then had a further break, before the third interview, of one hour thirty minutes.
5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (S.I. No. 74 of 1997)
At Kevin Street Garda Station one interview room only was equipped with video recording equipment. Another prisoner was taken to that room for interview at 6.25 p.m. and he was there with a three minute break only until 8.25 p.m. The applicant’s interview did not commence until 6.50 p.m. and finished at 8.10 p.m. This is the explanation for the failure to video the third interview. These facts are independently verified by the custody record.
The regulations at Regulation 4(3)(a)(ii) provide that where equipment is already in use at the time the interview is to commence and the member-in-charge considers on reasonable grounds that the interview should not be delayed until the equipment becomes available an interview is not required to be electronically recorded. Regulation 4(4) requires that where an interview is not recorded the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason.
Sergeant McAvinchey was the member-in-charge at the relevant time and gave evidence that the third interview of the applicant started at 6.50 p.m. and at that stage the interview room equipped with electronic recording equipment was in use. He accepted that he did not make the entry required by Regulation 4(4) in the custody record. He could give no account of having considered whether or the grounds on which he determined that the interview of the applicant should proceed.
The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the electronic recording regulations shall not by itself render inadmissible in evidence anything said during such questioning. Again the Criminal Justice Act 1984 section 7(3) in relation to custody regulations, and in particular the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, is to similar effect and a failure to observe any provision of the regulations shall not of itself affect the admissibility in evidence of any statement made by a person detained.
CONCLUSION
As to the first circumstance relied upon by the applicant the learned trial judge found on the evidence beyond reasonable doubt that there was no deliberate or cynical ploy on the part of the Gardai in conducting the interview with the applicant’s mother on the date of his arrest and suggesting to C.A. his sister that she should attend at the Garda Station that afternoon. The circumstances which occurred in The People (D.P.P.) v Ward, unreported Special Criminal Court, 27th November 1998 differ considerably from the present case. There Ward while in custody had a visit from his girlfriend after which he made admissions having refused to do so in the course of five previous interviews. His girlfriend had been arrested and interviewed at length allegedly aggressively. She was threatened that she would be charged as an accessory to murder. She was crying and very distressed. She did not ask to visit the accused but was nonetheless brought from Ballyfermot Garda Station to Lucan Garda Station to visit him. She was interviewed again at Lucan Garda Station and remained upset and frightened. She was told that a charge sheet was being prepared but was asked to go and see the accused and ask him where the gun was to be found and that if the accused told the Gardai where the gun was to be found they would let her and the accused go home. She asked the accused to give the Gardai the information which they sought. The Special Criminal Court held that there was no credible explanation as to why the interview at Lucan Garda Station took place. The accused’s mother, a woman of seventy four years of age was also arrested and detained at Cabra Garda Station. She did not ask to see the accused but nonetheless was brought to Lucan Garda Station where she was immediately taken to meet the accused. This distressed him. These events the court held amounted to a deliberate ploy. In this case there was evidence before the learned trial judge which she accepted and which justifies her finding. She had the benefit of seeing the relevant witnesses and so was far better placed than an appellate court to evaluate their credibility. There were conflicts between the evidence of the applicant and C.A. examples being his evidence that he had nothing to eat and her evidence that he had and his evidence that he would say anything at the third interview to get out of custody and go home to his mother while her evidence was that he did not wish to go home but wanted to go to hospital.
As to the second circumstance relied upon, this is to a large extent correct in that the applicant had involvement with the Gardai only in relation to his complaint which led to the charge preferred against him, the making of his statement and his interview on the 18th October 2003. This court is satisfied that his inexperience in these matters is not such as of itself to render his admissions involuntary.
As to the third circumstance the applicant’s evidence that at the interview on the 18th October 2003 threats were made to the applicant in relation to his father and particularly his mother the learned trial judge had regard to the circumstance that this occurred some five months prior to his arrest. The allegations were denied by the Garda witnesses. The learned trial judge did not make any finding on the evidence but rather considered it in the context of the decision to interview the applicant’s mother on the day of arrest and the invitation to his sister to attend at the Garda Station that afternoon as part of a cynical ploy. In this context she found that she was satisfied beyond a reasonable doubt that there was no such ploy.
On the next circumstance the learned trial judge was satisfied that the first and second interviews were not over long or oppressive. The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations (Regulations 1987) Regulation 12(4)) provides that if an interview has lasted for four hours it shall be either terminated or adjourned for a reasonable time. The longer of the two interviews lasted three hours. Allegations made in the Circuit Court that the applicant had been denied food and medication was not pursued in this court. There were adequate and appropriate breaks between the first and second and between the second and third interviews. The applicant relied upon the The People (Director of Public Prosecutions) v Bernard McNally and Osgur Breathnach Court of Criminal Appeal 16th February 1981. In those cases there were very lengthy periods of questioning the interviews extending over forty four hours interrupted by one night’s sleep only and without the attendance of a solicitor notwithstanding repeated insistence that he should be afforded one.
Finally there was a non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997. Regulation 4(4) requires that where an interview is not recorded because, in this case, the equipment was already in use at the time of the interview, the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason. Further the member-in-charge is required to consider on reasonable grounds that the interview should not be delayed. The Garda witnesses were unable to give evidence in relation to any discussion of the grounds but as found by the learned trial judge on the evidence the equipment was indeed in use throughout the entire period of the third interview except for a matter of minutes when there was a short break. Further there were only two hours left of the applicant’s period of detention. This court is satisfied that that these factual circumstances, notwithstanding the absence of evidence as to the grounds in fact relied upon for the interview taking place, justified the interview taking place in the absence of recording facilities. The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the recording regulations shall not by itself render inadmissible in evidence anything said during questioning. It is accordingly appropriate to look at the other circumstances mentioned above in conjunction with this failure and to determine whether cumulatively they affect the admissibility of the statement. Having done so this court is satisfied that the cumulative effect of the circumstances is not such as to render the statement inadmissible. Again there was a non-compliance with the electronic recording regulations and the custody regulations in that the fact that the interview was not electronically recorded and the reason was not recorded in the custody record. In this regard section 7(3) of the Criminal Justice Act 1984 is to the like effect of section 27 so that the failure by itself does not render the statement inadmissible. Again the court has regard to the other circumstances relied upon by the applicant. The court is satisfied that the cumulative effect of the circumstances relied upon has not the effect of rendering the statement inadmissible.
In these circumstances the applicant fails on the grounds relied upon before this court and accordingly the court will treat the application for leave as the hearing of the appeal and dismiss the same.