THE COURT OF APPEAL
Neutral Citation Number:  IECA 145
The People at the Suit of the Director of Public Prosecutions
Judgment of the Court delivered on the 26th day of June 2015, by
Mr. Justice Birmingham
1. On the 5th February, 2013, the appellant, with a co-accused Daniel O’Regan, went on trial at Kilkenny Circuit Criminal Court charged with the following offences:-
2. Burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and
3. Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
3. So far as the appeal against conviction is concerned, two grounds are identified, these being:-
2. The trial was rendered unsatisfactory and the process of the court was abused owing to the conduct of the most senior garda officer involved in the case engaging in meetings and telephone communications with the appellant during the trial, knowing that the appellant was on trial on indictment and was legally represented.
5. In those circumstances, the arguments on this appeal have been confined to ground two.
6. To offer some context to this ground, it is necessary to explain that on the 9th January, 2009, a gang of four men broke into the home of a licensed firearms dealer who lived in a rural area outside Carrick-on-Suir, Co. Tipperary. Present in the house at the time of the aggravated burglary/robbery was the firearms dealer, his wife, his daughter and an elderly family friend. The former occupants were held for some four hours in their home and were threatened by the balaclava-wearing raiders who were armed with a sawn off shotgun, a knife and a large stick. The occupants of the house were tied up and locked in a firearm safe. The gang took 42 firearms, €800 in cash and the family car.
7. It was never suggested that the appellant was one of the group of four raiders, or indeed that his co-accused Mr. Daniel O’Regan was present at the crime scene. Rather, the case against them was that Mr. O’Regan had furnished information about the circumstances of the firearms dealer to the appellant and he had furnished it to the criminal gang which had proceeded to carry out the aggravated burglary.
8. On the 8th October, 2009, Mr. Freeman was arrested. The arrest was carried out by gardaí who had come to his home in possession of a s. 29 Offence Against the State Act Warrant which had been issued by Detective Superintendent Hayes, who was leading the investigation. This led to a Damache point about the validity of the arrest being argued at trial. However, the prosecution contended that the gardaí who came to the house had a dual purpose: to search but also independently to arrest Mr. Freeman. Ultimately, this argument found favour with the trial judge.
9. The trial opened on the 5th February, 2013. The appellant was represented by a solicitor and by senior and junior counsel. Of significance is the fact that when the trial took place that the appellant was subject to an eight year suspended sentence that had been imposed by His Honour Judge Desmond Hogan at the Dublin Circuit Criminal Court on the 11th February, 2008, after a plea of guilty to an armed robbery at the Bank of Ireland at Rathbone, Co. Laois, on the 13th February, 2004. On day fifteen of the trial the appellant changed his plea to one of guilty of a theft count, which was added to the indictment. The matter was put back for sentence with the appellant remaining on bail. There was no prosecution objection to the appellant being permitted to remain on bail.
10. There was some delay in bringing on the sentence herein. It appears that this was attributable to the need to arrange a hearing in Dublin before Judge Hogan to consider the question of whether the sentence that he had imposed but suspended should be activated. On the 14th February, 2014, six years of the eight year suspended sentence was activated with the final two years remaining suspended.
11. In June 2013, the appellant indicated to Judge Hogan that it was his intention to withdraw the guilty plea that he had entered in Kilkenny on the 28th February, 2013. His application to permit him withdraw the plea of guilty was heard on the 29th July, 2013 by the trial judge, His Honour Judge Griffin, before whom the plea of guilty had been entered. Judge Griffin refused the application to vacate the plea of guilty which had been entered on the theft charge. Subsequently the appellant brought judicial review proceedings arising from the decision of the trial judge not to allow him to change his plea. Those judicial review proceedings were unsuccessful. See in that regard Freeman v. DPP, Judge Gerard Griffin and Judge Desmond Hogan (Unreported, High Court, 21st February, 2014),  IEHC 68, a decision of Kearns P.
12. The appellant argues that the conduct of a senior garda officer involved in the case, indeed the most senior officer involved, in having a number of meetings and telephone communications with the appellant while the matter was at trial, rendered the trial defective or unsatisfactory. The application to change the plea was supported by evidence on affidavit, including evidence from the appellant’s telephone records, which showed a level of telephone communication between the appellant and the Detective Superintendent heading up the investigation during the period when the appellant was at trial in Kilkenny Circuit Criminal Court. The appellant contends that inducements were offered by the Detective Superintendent which procured the entry of a plea and that the plea that he entered was not the exercise of free will. Reference is made to those cases where the Court is called on to consider the voluntariness of admissions. By analogy to the admissions issue, it is said that the fact of a significant level of contact having been established, that the onus is on the prosecution to prove beyond reasonable doubt that inducements were not offered to the appellant. Moreover, the appellant says that the Detective Superintendent being engaged in communications with a person on trial is inherently unsatisfactory and gives rise to a suspicion of improper influence and improper behaviour which is for the prosecution to dispel beyond reasonable doubt.
13. The respondent, Director of Public Prosecutions, says that regard must be had to the context in which the plea was entered. These included the fact that:
2. The strength of the prosecution case had been increased by the outcome of three voir dires which had taken place and which had been resolved in favour of the prosecution.
3. As a result of the ruling on the voir dires the jury was going to hear evidence to which the appellant had objected including statements of admission made by him.
4. The appellant was given ample time to consult with his legal advisers and to reflect on his situation prior to his re-arraignment on the theft count, a fact that was acknowledged by his legal advisers when the re-arraignment took place.
5. If a plea of guilty to theft had not been entered, the likelihood is that the appellant would have received a significantly greater sentence, if convicted on the counts that were originally on the indictment.
15. Mr. Freeman alleges that during the course of these conversations, Detective Superintendent Hayes made arrangements for meetings with him. He says that the Detective Superintendent commented on the progress of the trial, implied that it was not going well, criticised the efforts of the defence legal team and urged him to plead guilty. More particularly, Mr. Freeman says that, during the first week of trial, the Detective Superintendent met with him at a children’s adventure and activity centre, the Empire of Fun, in Tipperary town. The appellant contends that Detective Superintendent Hayes asked him if he could persuade his co-accused, Darren O’Regan, to plead guilty saying that if this happened that it would “lighten the load” for Mr. Freeman, as then the gardaí would have several convictions and it would “be better” for Mr. Freeman. The appellant says that he told the Detective Superintendent that he would speak to his co-accused. On the following day, according to Mr. Freeman, he asked his legal advisers, without telling them anything about the contact with Detective Superintendent Hayes, whether it would make a difference if Mr. O’Regan changed his plea. In response to this query he says that he was told that if that happened that there was a possibility that Mr. O’Regan might be called to give evidence against him.
16. Mr. Freeman says that the following evening he was contacted by Detective Superintendent Hayes and asked how the contact with Mr. O’Regan had gone, to which he responded “not good”. Three or four days later the Detective Superintendent telephoned him and asked to meet, suggesting that the meeting could take place near a particular tyre centre in Tipperary town. Detective Superintendent Hayes inquired of Mr. Freeman how the trial was going, and what were the thoughts of the legal team in relation to the legal arguments that had been advanced in relation to the validity of an arrest following on the issuing of a warrant under s. 29 of the Offences Against the State Act. According to Mr. Freeman, he asked the Superintendent was there anything that could be done in the trial to “sort it out”. It is alleged that the response to this inquiry was that Mr. Freeman was asked to leave it with the Superintendent for a few days and that the Superintendent would “speak to his people”. Mr. Freeman says that he followed up on matters by calling the Detective Superintendent a few days later, who told him that more time was required.
17. Mr. Freeman says that after a day or two, Detective Superintendent Hayes telephoned him and told him to plead guilty referring in colourful terms to the effect junior counsel for the defence was having on the judge. On this occasion according to Mr. Freeman, the Detective Superintendent particularly said that if a guilty plea was entered that he would “get his people in Dublin to look after the suspended sentence”. Mr. Freeman was also informed that the Detective Superintendent would get Inspector Leahy to speak up for him in the sentence hearing and say that the appellant had only a minor role in the incident and had not been in trouble for five or six years. The most that Mr. Freeman would get was three years with one suspended. Shortly after this conversation Mr. Freeman says that he met Detective Superintendent Hayes at the roundabout near the tyre centre and that the Superintendent asked him what the appellant thought about what was being offered. According to Mr. Freeman the Detective Superintendent said that he would “stick to my promise as I did before”. Mr. Freeman says that this was a reference to the earlier sentence which had been suspended and that because of the way the Detective Superintendent had managed to deal with the earlier sentence, that he believed that the Superintendent had the influence necessary to deliver what he was promising. According to Mr. Freeman there was further contact that evening at, or near, a Gaelscoil when Mr. Freeman got into a Volkswagen Passat driven by Detective Superintendent Hayes. Later that night Detective Superintendent Hayes telephoned him three times to arrange a meeting. Mr. Freeman says he was not anxious to have a meeting as his solicitor had advised against this but that he was too worried at this stage, so he did meet with the Superintendent because he had previously been instrumental in delivering a suspended sentence for a serious offence. Mr. Freeman says that the Superintendent said “would you not plead and I’ll get someone to speak up for you”. Again according to Mr. Freeman, the Detective Superintendent said that he would only get three years and that he would probably be sent to Shelton Abbey or an open prison for a few months. According to Mr. Freeman, on the following morning when he met his legal advisers he told them that he needed to change his plea to guilty. Mr. Freeman said that he told his advisers that Detective Superintendent Hayes had said that if a guilty plea was entered, that Mr. Freeman would not go into custody straight away and that there would be no objection to bail until June 2013. Mr. Freeman said that he asked his lawyers to approach the prosecution and ascertain if there would be an objection to bail and that they did so and were informed that there would be no objection to bail until June 2013. Furthermore, Mr. Freeman says that the Detective Superintendent told him that a matter that was pending at Kilmallock District Court would be “sorted out”. Mr. Freeman, in the affidavit sworn by him seeking to vacate his guilty plea, refers to the fact that during the course of the trial, that at the request of leading counsel for the prosecution, that the trial judge had made an order that there was to be no contact between the appellant and members of An Garda Siochána and vice versa for the duration of the trial. The contact that there was amounted to a contempt of court. On this point Judge Griffin was satisfied that Detective Superintendent Hayes was unaware of the order which had been sought by the prosecution and accordingly that there was no question of contempt.
18. Detective Superintendent Hayes for his part says that he did not offer any inducements or promises to Mr. Freeman and that any interaction that he had with him related to other matters. He says that these matters were of a secret and sensitive nature. Prior to, during and after the trial had concluded, Mr. Freeman informed him of matters not relating to the investigation on what was described as “an incremental basis”. The matters were significant and caused him to submit a report to garda management on the 27th February, 2013.
19. Detective Superintendent Hayes says that during the last week of January, 2013 and the first week of February, 2013 he was contacted by Alan Freeman who sought a meeting. He was contacted by Mr. Freeman using a particular mobile phone and the Detective Superintendent comments that he is aware that Mr. Freeman changes his mobile number on a regular basis. A meeting was arranged and at that meeting secretive and sensitive matters were discussed and Mr. Freeman spoke about imminent threats to life. In the course of his affidavit resisting the application to vacate the plea, the Detective Superintendent stated that he wished to claim privilege in respect of these matters, as to disclose the details would create a significant risk to the lives of a number of individuals including the appellant. He says that he was also claiming privilege in respect of the craft and methodologies used by An Garda Siochána to target, apprehend, and prosecute persons involved in organised and subversive crime at the highest level. Detective Superintendent Hayes says that Mr. Freeman sought his advice in relation to the forthcoming trial, he says that Mr. Freeman was aware of the Damache judgment and also aware that if convicted he would have to be returned to Judge Hogan so that the question of the eight year suspended sentence could be addressed. Detective Superintendent Hayes says that he told Mr. Freeman that he was not in a position to advise on legal matters and that Mr. Freeman should consult with his legal advisers. Detective Superintendent Hayes also refers to his phone records, essentially to establish that contacts were initiated by Mr. Freeman. The Superintendent accepts that he made contact with Mr. Freeman through seven calls which he highlights and says that he was trying to arrange a meeting between Mr. Freeman and a trained member of another garda unit which is the appropriate garda procedure.
20. The Detective Superintendent says that he met Mr. Freeman on two occasions during the trial, not four as Mr. Freeman claims. He denies requesting Mr. Freeman to get the co-accused to plead guilty. In that regard he says that in his view, both Mr. Freeman and Mr. O’Regan were as culpable as the raiders who terrorised the householder and his family and that there were no circumstances in which he was going to “lighten the load” for any of those involved.
21. Detective Superintendent Hayes refers to further conversations with Mr. Freeman during April 2013 and to a meeting on the 27th April, 2013, which he said necessitated him travelling outside the region and that this journey related to other matters of which Mr. Freeman had informed him. The second meeting during the trial took place on Sunday the 24th February, 2013. At the request of Mr. Freeman, Detective Superintendent Hayes drove to a location which Mr. Freeman had identified and there matters, other than that relating to trial, but which related to the location, were discussed. Detective Superintendent Hayes adds that on occasions when he attended the trial, and this was only on rare occasions because while the trial was ongoing he was committed to significant trials of DPP v Mooney and Rockett in the Special Criminal Court and DPP v Damache at Waterford Circuit Court, he and other members of An Garda Siochána, including Detective Inspector William Leahy and Detective Sergeant Barry Boland, were approached by Mr. Freeman who was criticising his counsel.
22. Detective Superintendent Hayes says that he had no involvement with Mr. Freeman’s previous conviction for robbery for which he had received a suspended sentence. Now retired Detective Sergeant Sean Grennon gave evidence in that case before Judge Desmond Hogan. The evidence was that Mr. Freeman had been of material assistance, had no previous convictions and had repaid the money taken. Just as he had no involvement in the earlier robbery and suspended sentence, likewise he is very clear that in the present case he had no involvement in, nor was he consulted in relation to the fact that Mr. Freeman was permitted to remain on bail having entered a plea of guilty. He is firm and clear in saying that he did not offer any inducement to Mr. Freeman in respect of giving evidence or remaining on bail.
23. The trial judge in the course of his ruling referred to the fact that there had been contact between the appellant and the Detective Superintendent outside the dates when the matter was at trial and indeed that there was contact in April, 2013. He said that he was satisfied from the affidavit of Superintendent Hayes and from privileged documents that were handed in, that the discussions between the Superintendent and the accused were in relation to matters unconnected with the trial. The reference to privileged documents arises in circumstances where the Detective Superintendent had produced a memorandum for his own authorities in relation to the matters that had emerged during the contact between him and the appellant. The trial judge read the documents in the context of considering the claim of privilege and ruled that the documents could be read by solicitor and counsel for the accused, but that they could not show the documents to anybody else, including the accused himself. This Court has not had sight of the documents. In those circumstances, anything it can say in relation to them must inevitably be somewhat constrained. From certain exchanges between the judge and counsel one can deduce that the documents contained very sensitive material. The decision in effect, to erect a barrier between the legal representatives of the accused and their client, is not a course of action that this Court would favour. (See Burke v. Central Television  2 IR 61 and Ward v. The Special Criminal Court  2 ILRM 493). However, there was no real objection at trial to the course of action proposed and the fact that the procedure which was followed was one that this Court would not have adopted is not determinative of the issue. In the course of his ruling, the trial judge commented that he had to take account of the fact that the accused, in a sense, knew the ropes. That was an observation that was well justified. He commented that the accused had, by the stage at which the plea of guilty was entered, been involved in three voir dires. He drew attention to the fact that in the course of one of those voir dires dealing with the question of the voluntariness of admissions in a situation where the accused was contending that inducements had been offered to him by a Detective Garda, that the judge when ruling on the matter had commented as follows:-
25. There is no doubt that the contact between the Detective Superintendent and the then accused was unusual. Indeed, it would have been better if the contact had not occurred. In a situation where this Court has not had access to all of the material which was before the trial court and on which the trial judge relied, it is not appropriate to put matters in stronger terms. The trial judge referred to comments made by Kearns J., as he then was, in the Supreme Court in the case of People DPP v. Redmond  3 I.R. 217, where he had commented:-
27. He entered his plea at a time when he had assistance from senior and junior counsel and there can be no reason whatsoever to believe that his will was overborne. The decision whether to vacate the plea on foot of the application or not was a matter for the trial judge. Having conducted three voir dires, he was uniquely well positioned to assess where the merits lay. The decision that he arrived at was one that was very clearly open to him and accordingly, this ground of appeal fails. That disposes of the appeal against conviction and the court will now turn to the question of sentence.
28. This morning the court delivered a written judgment which dismissed Mr. Freeman’s appeal against conviction and in the course of that judgment the background is set out in some detail and it is not necessary to repeat it at this stage.
29. So far as the sentence aspect is concerned, the position is that at an advanced stage of the trial, Mr. Freeman entered a plea to an offence of theft which was added to the indictment. As emerged from the earlier judgment there was then an attempt to withdraw the appeal and indeed there was an attempt to appeal the recorded conviction notwithstanding the plea that was entered. In those circumstances the amount of credit which would normally be given for a plea has to be much reduced. Notwithstanding that there may be some very limited remaining credit by reason of the fact that court time was saved.
30. The significant feature here is and this is again set out in the earlier judgment, that when Mr. Freeman went on trial and when he entered his plea, he did so at a time when he was subject to a suspended sentence of eight years imprisonment. That suspended sentence had been imposed in respect of a bank robbery and very unusually it had been suspended in full. There was an application to activate that sentence and six of the eight years were activated and that is not at issue today and it is also not in dispute today that the sentence that was to be imposed on this matter would have to be consecutive.
31. The judge in this case imposed a sentence of seven years imprisonment and that was consecutive to the suspended sentence, the suspended activated sentence being one of six years, because six rather than eight years were activated. The effect of that is that the global sentence that would be served by Mr. Freeman arising from this incident was set by the judge at in effect thirteen years.
32. Having regard to the gravity of the incident at the core of this criminal involvement, the court does not see any error in a figure of thirteen years. However, the court does feel that it is necessary in a situation where the two sentences were going to be consecutive to each other and where the global sentence was going to be a very long one to have regard to the principles of totality and proportionality.
33. In the circumstances and in the belief that when Mr. Freeman serves the significant sentence that he must serve, that it would be better that there would be an incentive for him not to further reoffend, in order to provide that incentive, the court will suspend the final two years of the thirteen years. Therefore effectively reducing the seven years to five to be served consecutive to the six years. That is conditional on Mr. Freeman entering into a bond to keep the peace and be of good behaviour for a period of two years following his release from custody in the amount of €100.