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Cite as: [2015] IECA 109
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 109
[50/2012] The President Birmingham J. Edwards J.
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/RESPONDENT AND
BARRY DOYLE APPELLANT JUDGMENT of the Court delivered by the President on 8th June 2015 The Conviction 2. He now appeals against his conviction on 27 grounds of appeal that reflect issues and rulings that arose during the trial, in addition to a later legal ground. The issues that have to be decided concern admissions made by the appellant, evidential matters in respect of two witnesses, criticisms of the judge’s charge to the jury, material that was furnished to the jury and finally a legal issue arising out of the decision of the Supreme Court in the case of Damache v DPP [2012] IESC 11, that was decided subsequently to the trial. 3. The hearing of the appeal extended over two days and the appellant and the respondent had previously filed lengthy written submissions addressing all the issues. The Murder 5. According to the prosecution, another man who lived locally was the killer's target and the victim's death was a case of mistaken identity. The Investigation 7. Two teams of two Gardaí each carried out the interrogation of the appellant. It was slow going at first because he was unwilling to engage with his interviewers. Their efforts were directed in the first instance at getting him to talk to them about himself and his relationships, including those with his children and with Victoria Gunnery. He was reluctant to engage with them but the Gardaí persisted. Mr. Doyle had brief consultations with a solicitor. All of the interviews were video-recorded. 8. The appellant’s attitude changed at interview 15, which began at 19.42 on 26th February 2009. In the previous interview that concluded at 18.35, Mr. Doyle had asked to see his solicitor Mr. O’Donnell and the Gardaí told him that he was on his way. In due course, the solicitor arrived and spoke to his client. The solicitor then approached the Gardaí with an offer. Mr. Doyle would say that he killed Shane Geoghegan if the Gardaí agreed to release Victoria Gunnery. The deal on offer was that he would answer one question only, to confirm that he had killed the deceased. The Gardaí rejected the offer. They said that they wanted Mr. Doyle to tell the truth, that answering one question would not be satisfactory in any case because it would not enable the Gardaí to find out if he was telling the truth and there could be no deal because that would be an inducement which would make any admission inadmissible in court. Mr. O’Donnell returned to his client and had a further brief consultation. 9. Then interview 15 began, but it was interrupted after a few minutes by a phone call from the solicitor who wanted to speak with his client, which then happened. Thereafter, the interview recommenced. Mr. Doyle now answered the questions put to him regarding his role and confirmed that he was the person who shot Shane Geoghegan. He gave details of how he had waited for his victim, having been driven there by another person whom he did not name. He described the shooting, how it happened first on the green in front of the houses, how the gun jammed and he cleared it by ejecting the bullets, how he then resumed the pursuit by going around to the back of the house where he shot Mr. Geoghegan a number of times including once in the head from short range. 10. The Gardaí asked Mr. Doyle to draw them a map of the scene and he obliged, using writing materials the Gardaí provided. He showed the points that were relevant including where the car had been parked and which way it was facing, the direction that Mr. Geoghegan had come from, where he Mr. Doyle shot Mr. Geoghegan the first time, where he ejected the bullets to clear the gun mechanism and where he had gone round to the back of the house and finished off his victim. This information was important, as the prosecution alleged, because it included facts that the Gardaí did not know or were mistaken about. 11. At the termination of interview 15, after the tape was sealed, the Gardaí asked Mr. Doyle about his feelings for the Geoghegan family and he said he was sorry for them and in a gesture of sympathy he took off the rosary beads that he was wearing round his neck and said to give it to Shane Geoghegan’s mother. 12. The final interviews added little to the information that Barry Doyle had given the Gardaí. It was clear that he was willing to admit that he was the killer but he steadfastly refused to implicate anybody else. The Trial (a) The Trial within a Trial 14. The defence objected to the admissibility of the defendant's admissions first on the ground that they were made as a result of inducement or a threat, namely, that Victoria Gunnery would be released if he confessed or that she would continue to be detained if he did not. 15. Secondly, the appellant was subjected to oppression. There was breach of the accused's constitutional right of access to legal advice. He did not get adequate opportunity to have such advice and he was entitled to have his solicitor present during questioning but was not afforded such facilities. 16. Thirdly, it was submitted that the questioning of the appellant breached the requirements of fundamental fairness in accordance with the principles in People (DPP) v Shaw [1982] 1 I.R. 1, and the trial Court erred in not exercising its overall and residual power to exclude the admissions in the interest of fairness. 17. The appellant did not contend that he was subjected to any physical abuse and no complaint is made as to his physical treatment. Neither was it suggested “that of itself there was sufficient oppression to overbear the will of the accused”. 18. The trial judge held that the admissions made by Barry Doyle were voluntary; he had adequate access to legal advice; there was no oppression; the appellant was in full control of himself throughout; and that even if the remarks could amount to an inducement, the effect had worn off at the relevant time particularly having regard to the legal consultation. (b) The Trial before the Jury
ii) The evidence of April Collins, who at the time of the murder was the girlfriend of Gerard Dundon, who gave evidence that on the day before the murder she was present in a house on Hyde Road in Limerick when John Dundon ordered Barry Doyle to kill John McNamara with a firearm. She was also present at a meeting in a pub car park on the outskirts of Limerick on the morning after the murder with John Dundon, Barry Doyle and Gerard Dundon when John Dundon discovered that Barry Doyle had murdered the wrong man and confronted Mr. Doyle with that fact to which his response was that it was him, that is to say the intended victim. iii) The evidence of Victoria Gunnery, the girlfriend of Mr. Doyle. 20. Evidence of the admissions was led to the jury by showing them edited parts of the recordings of interviews, including number 15. As had happened in the voir dire, the interviewers were cross-examined by the defence to show that the admissions were not voluntary. The Gardaí gave evidence as to what Barry Doyle had said by way of admission and when the jury retired to consider their verdict they had edited versions of the admissions in memo form. These matters are the subject of grounds 16-19. 21. The evidence of April Collins also gave rise to controversy. She did not give evidence at the previous trial but subsequent to that case she provided information to the Gardaí, made a statement and agreed to testify. She had been in a relationship with Gerard Dundon but that was now over. Ms Collins and other members of her family were in trouble with the Gardaí because of intimidation of a witness in an unrelated matter. 22. The defence applied to the court to get access to the telephone records of Ms Collins and her Garda liaison Detective Garda Hourihane. They claimed that the information in the records was relevant to the defence. The trial judge upheld the prosecution’s objection. Grounds 11 to 14 relate to the phone records between April Collins and Detective Garda James Hourihane. April Collins also features in other grounds. Ground 15 concerns matters that were put to her in re-examination. Grounds 23 to 26 relate to the judge’s charge in relation to April Collins. 23. In cross-examining Victoria Gunnery, defence Counsel elicited that she had informed Barry Doyle that Demi Leigh had an appointment on the day that Victoria was arrested. Barry Doyle himself had told his interviewers that Demi Leigh had an appointment on the day that Victoria was arrested. Hospital administrator Deirdre Devlin gave evidence that the child did not have an appointment at the hospital that day and that the child had had other appointments in the past which she had not attended. The Appeal The Issues on the Appeal
(i) inducement or threat (ii) oppression and unfairness (b) April Collins (i) Telephone Records (Grounds 11-14) (ii) Re-examination (Ground 15) (c) Victoria Gunnery (Ground 20) (d) Judge’s Charge to jury (i) Judge’s charge in relation to admissions (Grounds 8 to 10) (ii) Judge’s charge in relation to April Collins (Grounds 23 to 26) (iii) Judge’s charge in relation to ballistics evidence (Ground 22) (e) Jury material (Grounds 16-19) (f) Damache (Ground 27) 24. The appellant submits that the admissions of guilt made while in garda custody ought to have been excluded by the trial judge on the grounds that (1) they were involuntary, in that they were made as a result of a combination of threats, inducements and oppression; (2) they were made as a result of breaches of the accused’s constitutional right to access to legal advice and (3) they were made as a result of breaches of the requirement of fundamental fairness. 25. The trial judge viewed the videos that were presented and heard the evidence of the garda interviewers. There followed oral arguments of the parties who had also provided written submissions. The judge then ruled on all the admissibility issues that had been raised in the following ruling:-
1) That the admissions were made involuntarily as a result of a combination of threats, inducements and oppression. 2) That the admissions were made as a result of breaches of the accused's constitutional right of access to legal advice. 3) The admissions were made as a result of breaches of the requirement of fundamental fairness. In considering these submissions, the Court has had the benefit of oral and written submissions by the defence and by the prosecution as well as booklets of authorities furnished by each side. The Court has heard evidence from Detective Garda Hogan, Detective Garda Hanley and Detective Sergeant Philips, who were the principal questioners, as well as evidence from Detective Inspector Crowe who was heavily involved in managing the investigation and inter alia insuring that the law regarding custody extensions was complied with. Garda Cowen, who gave evidence regarding the custody record. Detective Garda Clayton, who was involved in the questioning of Victoria Gunnery and her transfer to Limerick. The Court also heard from Garda Amanda O'Callaghan who told the Court that it was not garda practice to allow solicitors to be present at custody interviews and the Court also heard the statement of a medical secretary Deirdre Devlin which was read to the Court and which stated that the child of Victoria Gunnery and Barry Doyle had no appointment in February 2009 at the Children's Hospital in Crumlin. The Court also had the benefit of viewing well over 20 hours of recorded interviews, being the first 16 interviews, as well as an agreed transcript of all the interviews. The onus of proof in respect of admissibility is on the prosecution and if confessions are to be admitted in evidence the Court must be satisfied beyond a reasonable doubt that it is proper to do so. In considering the question of inducement the Court is guided by the decision of the Court of Criminal Appeal in the McCann case and also bears in mind the judgment in R v. Rennie, particularly pages 69 and 70 of that judgment. This court proposes to adopt the rationale put forward by O'Flaherty J in the McCann case and does not propose to follow the judgment of the Canadian Supreme Court in Spencer. The Court has also considered the judgment in the Hoey and Pringle cases, insofar as they relate to inducement. Regarding oppression, the Court has been guided primarily by the McNally and Pringle judgments. The Court also bears in mind the decision of the Supreme Court in the Shaw case. I will deal first with the question of legal access. With regard to the question of legal access Barry Doyle had two consultations with his solicitor while he was in Bruff Garda Station prior to making admissions and he was also represented by that solicitor in court when an application was made to extend his detention. The Court does not consider the length of time that either consultation lasted to be relevant in the context of this case. The Court also holds that the Gardaí were entitled to continue interviewing Barry Doyle in interview 15 when he had complained that a short telephone conversation with his solicitor was not a proper consultation and when his solicitor's arrival at the garda station was expected within an hour. The Court is satisfied that there was no breach of Barry Doyle's constitutional right to legal advice. In considering the question of oppression the Court observed Barry Doyle in video recordings over a period of in excess of 20 hours and holds that he appeared to be physically and mentally strong throughout. He engaged with the Gardaí when he chose to do so and refused to answer questions when he did not wish to do so. The Court notes that he had worked for a construction company as a block layer and played Gaelic football. The Court also notes that at the time of his arrest he was living in basic accommodation in Limerick wearing a bulletproof vest. The Court also notes that a few months earlier when asked by a member of An Garda Síochána where he had been the previous night he responded by saying ‘Fuck off’. With regard to the questioning by Detective Garda Hogan, Detective Sergeant Philips and Detective Garda Hanley, and indeed Detective Garda Whelan, the Court finds that the interviews were conducted in a careful, patient and structured way in which some of the results of the garda investigation were gradually revealed to Barry Doyle. The Court also holds that Barry Doyle first began to engage with Detective Garda Hogan in a limited way, essentially as a result of Detective Garda Hogan's appeal to Barry Doyle's humanity. This engagement was built on by Detective Sergeant Philips and Detective Garda Hanley and ultimately the accused told the Gardaí about his involvement in the death of Shane Geoghegan. The Court holds that the interviews conducted by Detective Garda Hogan and Detective Garda Whelan and the interviews conducted by Detective Sergeant Philips and Detective Garda Hanley were at all times professional and courteous and involved no oppression. The Court also holds that Barry Doyle was in full control of himself throughout the interviews and holds that he made the admissions that he did because he chose to do so. With regard to the question as to whether some of the promptings by the Gardaí to Barry Doyle to the effect that he should tell the truth and not keep Victoria Gunnery away any longer from their child, the question arises as to whether this, or any other related promptings made prior to interview 15 and relating to the release of Victoria Gunnery, could amount to an inducement. The first thing to be said is that these remarks must be viewed in the overall context of all that had taken place, which included the various responses of Barry Doyle regarding the death of his brother, the responses regarding his own family, his children by a previous relationship to his relationship with Victoria Gunnery, as well as read or taken in the context of the limited answers he had given about living in Limerick and the fact that he had conceded to Detective Garda Hogan that being in custody on suspicion of the murder of Shane Geoghegan was the lowest point in his life. The context also includes the gradual unfolding of the evidence in the case to him and the context further includes numerous appeals to him to tell the truth. Notwithstanding the context in which they occurred, and bearing in mind the judgment of Lord Lane in the Rennie case, even if these promptings could possibly amount to an inducement when objectively viewed they were not immediately acted on and their affect, whatever it may have been, was dissipated by the consultation Barry Doyle had with his solicitor and his solicitor's interaction with Detective Garda Hanley and Detective Sergeant Philips. This broke any possible causative link and it is highly relevant that the solicitor told the detectives that Barry Doyle would not admit to the offence and that they would have a bit more work to do. The Court holds that when Barry Doyle came to make his admissions in interview 15 he made them voluntarily. Accordingly, the Court holds that the admissions were made not as a result of oppression and were not made as a result of any threat or inducement. Finally, the Court has considered the objection made by the defence that the admissions were made as a result of a breach of fundamental fairness. The Court has considered all the objections in the round and bears in mind, in particular, what Griffin J said in the People v. Shaw at page 61, and I quote: "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. The Court holds that there is no breach of the requirements of fundamental fairness and accordingly holds that the confessions made by Barry Doyle are admissible in evidence.” 26. Despite being questioned by the Garda interview teams over three days, the appellant had not made any admissions prior to interview 15 which began at 19:43 on 26th February 2009. During interview 14, Mr. Doyle had requested to speak to his solicitor and the Gardaí told him that Mr. O’Donnell was on his way. The interview continued until 18:35 when it concluded. Nothing of evidential relevance emerged at this interview. Then the appellant met his solicitor. Following this consultation, the solicitor came out and asked to speak confidentially to the interrogating officers, Detective Garda Philips and Hanley. The evidence on this is in an aide memoire written by Garda Philips which was not challenged:
Appellant’s Submissions 28. The appellant’s submissions refer to the arrest of Victoria Gunnery, the mother of his child Demi Leigh. Ms Gunnery was arrested in Dublin on the same day as the appellant. She was interviewed in Ballymun Garda Station but was later brought to Limerick. The appellant argued that Gardaí attempted to negotiate a deal that in return for a confession she would be released from custody. 29. The appellant submitted that the courts have consistently held that even the most gentle threats or slight inducements will taint a confession, see R v. Smith [1959] 2 QB 35. In People (D.P.P) v. Hoey [1987] IR 637 a threat to arrest and interrogate friends of an accused was sufficient to exclude a confession. In People (DPP) v. Pringle (1981) 1 Frewen 57, when an accused was told that a woman with whom the accused had a close relationship may be charged, called to give evidence and was “in a bad way” it constituted an inducement or threat. 30. The trial judge, during the voir dire, held that “the admissions were made not as a result of oppression and were not made as a result of any threat or inducement”. The appellant argues that while the trial judge expressly accepted the judgment of People v McCann [1998] 4 I.R. 397, as representing the law in Ireland on this point he failed to apply the law in the manner outlined in that judgment. The trial judge did not directly address whether remarks brought to his attention constituted inducements but merely stated that if the remarks did amount to an inducement then the effect of any inducement was dissipated by the intervention of the appellant’s solicitor. The appellant submits the Gardaí deliberately raised matters of little or no relevance to the investigation which were calculated to psychologically upset and bully the appellant. Respondent’s Submissions 32. Counsel for the prosecution relied on The People v. McCann [1998] 4 I.R. 397, and R v. Rennie [1982] W.L.R 64 as the test as to whether a confession is rendered inadmissible on grounds of involuntariness as a result of an inducement. It was submitted that there was no evidence of words being used that were capable of amounting to a threat or promise or that the accused understood them as such. Counsel for the respondent argued that deference is owed to the trial judge’s determination on the voluntariness of the confession. The trial judge was entitled to have regard to the type of character that Mr. Doyle was including that at the time of his arrest he was wearing a bulletproof vest and that “a few months earlier when asked by a member of An Garda Siochana where he had been the previous night he responded by saying fuck off”. Ultimately the respondent submitted the trial judge was correct in his finding that Barry Doyle was in full control of himself throughout the interviews and made admissions because he chose to do so. Discussion 34. The law on inducements is set out in McCann and in the English case of R v. Rennie. There has to be something said or done that, objectively considered, amounts to an inducement. Second, it has to be considered as such by the person affected, usually the suspect, whose subsequent statement is in issue. Thirdly, the admission has to be causally related to the inducement. The cases make clear that the intention of the offeror is irrelevant. 35. In the case of a ruling made in the course of a trial that depends on the assessment of witnesses, an appellate court will be slow if not extremely reluctant to overturn the judge’s view because he has the advantage of seeing the witnesses being examined and cross-examined, which puts him in a superior position to that of the court that only has the transcript. This is consistent with the approach adopted in The People v Madden & Others [1977] IR 336 at pages 339 / 340 where the Court of Criminal Appeal followed the judgment of Holmes LJ delivered in the Court of Appeal in the SS Gairloch [1899] 2 I.R. 1, 18 where he stated as follows :
37. The appellant tries to make the best of the offer made by Mr. O’Donnell by proposing that it represented the implementation of the McCann triad but that does not make sense. The Gardaí actually told Mr. O’Donnell what he must already have known, namely, that what he was suggesting was useless and could not stand up in court. It is unnecessary to try to understand the thinking behind the offer made by Mr. O’Donnell and whether it was genuine or not. The fact is that the offer was made and it was explicitly rejected. There was no room for ambiguity or misunderstanding. It has to be assumed of course that the offer was made on Mr. Doyle’s instructions and clearly he had the benefit of the lawyer’s advice. The appellant knew what he was doing. In the circumstances, this transaction constitutes refutation of the appellant’s argument based on inducement. Obviously, the same applies to the alternative suggestion of a threat. 38. This Court also considers that the applicant’s argument based on the selected statements, comments and questions from the transcripts of interview is not made out. This is a matter of interpretation of the exchanges, considered in context. It is of course subject to the reservation above expressed as to the superior opportunity for sense perception enjoyed by the trial judge. But this Court was invited by the written and oral submissions of the appellant to conclude from a consideration of the transcripts that the trial judge was in error in his assessment. 39. The interviews contain references to Barry Doyle’s deceased brother, to his family, to Victoria Gunnery, to his children, to his background and education and to his living circumstances in Limerick. Some of the Garda comments are colloquial, to say the least, but there are no threats uttered. Neither is any explicit promise or inducement offered. It follows that any inducement or threat must be an implied one. Is there a basis of evidence from which such a proposal may be inferred? The appellant lists a number of comments and questions and statements from the interview transcripts to demonstrate what is alleged to be a proposal by the Gardaí. 40. The first point on this question is that the trial judge was in a vastly superior position to assess the question. Not only did he watch some 20 hours of the interviews, he then heard evidence from the Garda interviewers and he observed them being cross-examined by defence Counsel. That followed each viewing of an interview. Great weight must therefore be given to his assessment that there was no inducement or threat. In this regard, this Court dismisses the appellant’s criticism of the manner in which the judge expressed himself in ruling on the voir dire. It is clear that the judge did not think that there was any inducement but went on to hold that even if there was something to satisfy the first leg of McCann/Rennie, and that it operated on the appellant, it was dissipated by the intervention of the appellant’s solicitor. The judge made clear that the onus was on the prosecution to prove the case on voluntariness and absence of any inducement or threat to the standard beyond reasonable doubt. 41. A consideration of the transcripts of the interviews affords factual support for the finding made by the trial judge. The Gardaí in these transcripts are recorded as endeavouring to get Mr. Doyle to engage with them. Obviously, they wanted him to tell them what he knew about the murder of Shane Geoghegan. They appealed to his sense of sympathy for the Geoghegan family. They actually appealed to his sense of morality. They suggested that he could not be proud of the situation in life to which he had sunk as they invited him to see it. By this they meant that he was eking out a lowlife existence at the beck and call of others and living in basic accommodation while going to bed a night wearing a bulletproof vest. Not only had he descended to this level, as the Gardaí put it to him, but he had brought Victoria Gunnery to the point where she was in custody as well as him. 42. It was not that the Gardaí were suggesting that they would release Victoria Gunnery if the appellant confessed. It was rather that they were addressing his better nature by inviting him to consider his personal descent into primitive living conditions and involvement in serious crime, bringing death to an innocent man and destruction to his family. By doing so, the Gardaí were suggesting that Barry Doyle had also brought down Victoria Gunnery to the point where she was in Garda custody. 43. The Gardaí were thus appealing to Barry Doyle’s essential humanity rather than negotiating to broker a deal. The appellant has selected unconnected observations and comments in support of a reading of the situation and of the interchanges between the Gardaí and the appellant that is not justified by an examination and interpretation of the transcripts. 44. This interpretation of the transcripts as revealing an appeal by the Gardai to the appellant’s better instincts, to sympathy for the Geoghegan family and to shame and dismay at what had become of Mr. Doyle himself is supported by the way events developed during and after interview 15. The offer of his rosary beads to Shane Geoghegan’s mother can be seen as a gesture of remorse and sympathy which is in keeping with the tone of interview that our analysis suggests. 45. It is also significant and supportive of this conclusion that Mr. Doyle made admissions limited to his own role and that he did not involve any other people. As to what he himself had done, he furnished considerable detail even to the extent of drawing a map to show what happened and where. He included, moreover, material correcting the impression that the Gardai had had up to then in respect of an important detail. It is reasonable to suppose that a person acting under compulsion of an inducement or threat would be less likely to exercise such a degree of control and precision over the information he divulged. If Barry Doyle’s will and resistance had been broken down he would have revealed more information particularly concerning the role of others in the murder. The fact that he controlled the flow of admissions and restricted them to himself suggests a capacity for calculation and judgement on his part that is inconsistent with the proposition that his will was overborne. 46. The inducement theory also falls down when one considers what happened at the conclusion of interview 15. Barry Doyle did not demand confirmation that Victoria Gunnery had been released. If he had made his admissions on the faith of the deal that is suggested, one would have expected enquiries and reassurances on this point. 47. The trial judge’s ruling is an implicit rejection of inducement or threat having operated on the appellant’s mind so as to make him confess or make admissions. The judge based that conclusion on his viewing of the video recordings and his judgement of the evidence of the Garda witnesses who participated in the questioning of Mr. Doyle. The transcripts that have been considered by this Court do not invalidate the judge’s ruling but instead actually support it. And the evidence of the interaction between the solicitor and the Gardai is decisive in disproving the inducement or threat hypothesis. There are moreover other considerations that militate against the theory proposed by Counsel for the appellant. 48. The Court holds that the learned trial judge was entitled to find on the evidence that the prosecution had established that the admissions made by the appellant were not brought about by any inducement or threat. The Court is also satisfied that the judge’s interpretation of the interviews was correct. It concludes that the proposal by the appellant’s solicitor not only dissipated any possible belief in an offer by the Gardai but also constituted an approach that actually negated belief in an inducement. The Garda response refutes the contention advanced by the appellant. (a)(ii) Oppression and Unfairness Appellant’s Submissions 50. The appellant relied on People (D.P.P) v Gormley and White [2014] IESC 17 which stated at para 9.15:-
52. The appellant submitted that appellant did not receive “reasonable access” to his solicitor. “Reasonable access” must mean that the access itself has to be meaningful. In the present case the information imparted to the solicitor by the Gardaí was wholly insufficient when taken in conjunction with his subsequent denial of access during interviews and the total absence of any information from Gardaí during the ongoing detention of the accused. 53. Reference was also made to People (D.P.P) v Healey [1990] 2 I.R. 73, and Lavery v. Member in Charge Carrickmacross Garda Station [1999] 2 IR 390, although that case obiter denied a right to have a solicitor present during questioning, and suggested that the failure to afford this facility should be regarded as a breach of the accused’s constitutional right to reasonable access to a solicitor. Miranda v. Arizona 384 U.S. 436 and the European Court of Human Rights decisions in Magee v. UK (2001) 31 EHRR 35 and Salduz v. Turkey (2008) 49 EHRR 421 were cited, as was the UK Supreme Court decision of Cadder (Appellant) v. Her Majesty’s Advocate (Respondent) (Scotland) [2010] UKSC 43. 54. It was submitted that after interview 14 the accused’s position was irretrievably prejudiced as having requested access to a solicitor Gardaí for no good reason pressed ahead with the interview. That “irretrievable prejudice” was not cured by the subsequent consultation but rather compounded by it. 55. It was also submitted that the questioning of the appellant breached the requirements of fundamental fairness in accordance with the principles in People (D.P.P) v. Shaw [1982] I.R. 1, and the trial Court erred in not exercising its overall and residual power to exclude the admissions in the interest of fairness. Respondent’s Submissions 57. In Gormley and White, the Court noted that the question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of the case. It was submitted that it equally does not arise on the facts of this case. First, there was no request for a lawyer to attend during questioning. Secondly, the appellant had access to a lawyer immediately before the relevant interview and, unusually, notwithstanding recent access prior to the interview, the interview itself was interrupted to allow further access to the solicitor. 58. The decision of the European Court of Human Rights in Salduz v. Turkey (2008) 49 EHRR 421 is not authority for the proposition that a person is entitled to have a lawyer present when being interviewed. It was a case of complete denial of access to a solicitor. 59. The question of the reasonableness of access to a solicitor only arises where access is denied, restricted or limited in some way. In those circumstances a court may well have to determine whether such denial, restrictions or limits were reasonable, and it will be for the prosecution to justify them. Where a suspect has had all the access he sought, as did the Appellant, the question simply does not arise. 60. The respondent submitted that there is no such thing as a merely technically voluntary confession. Either it is voluntary or it is not, and the appellant’s confessions were entirely voluntary. Discussion
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 .11 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 this 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 for the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another. The test of basic fairness, based on a due consideration of the rights of the accused coupled with the requirements, in the interests of the common good, of the prosecution, superimposed on the need for voluntariness, has the merit of ensuring, if the judicial discretion is correctly exercised, that an accused will not be wrongly or unfairly convicted out of his own mouth.”
63. A person who is arrested and brought to a Garda Station must be dealt with in accordance with the Treatment of Persons in Custody in Garda Stations Regulations, 1987 which are a detailed code of protection of the suspect’s rights. They include an obligation on the Member in Charge to supervise the conditions of custody and regulate questioning of the arrested person. The appellant expressly disavows any physical mistreatment or any conduct causing his will to be overborne. 64. The Gardaí were trying to get the appellant to engage with them in discussions generally to begin with and then to go on to discuss the crime. They wanted him to respond to specific information or comments by them about the crime. Barry Doyle was resistant at first to any kind of engagement with the Gardaí and they responded by questions and comments and one monologue extending over one hour, with a view to getting him, in the first place, to engage with them. Their purpose was undoubtedly to get him talking and once they had got him talking, to get him talking about Shane Geoghegan and the crime in the hope that they would get information from him and they would also get details about other people who were involved and confirmation about other features of the circumstances. 65. This is in the nature of an engagement between policemen who are operating on the basis of reasonable suspicion that the person they are interviewing has committed a serious crime and they are seeking to confirm their suspicions or to allay them by getting information that will confirm or dispel the suspicion. 66. Such an approach accords with the jurisprudence of the European Court of Human Rights in a number of judgments. The standard imposed by Article 5 § 1 (c) does not presuppose that the police have sufficient evidence to bring charges at the time of arrest or while the applicant was in custody (see Petkov and Profirov v. Bulgaria, (App. nos. 50027/08 and 50781/09) (Unreported, European Court of Human Rights, 24th June 2014) and Erdagöz v. Turkey (App. 127/1996) (2001) 32 EHRR 19). The object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest (Brogan and Others v. the United Kingdom, (App nos. 11209/84; 11234/84; 11266/84; 11386/85) (1998) 11 E.H.R.R. 117 and Labita v. Italy (App. no. 26772/95) (2001) 31 EHRR 1 [GC]). 67. According to Blackstone (2012):-
70. Similarly, the Gormley and White decision by the Supreme Court, long after the trial of Barry Doyle, is of little relevance in this appeal. In that case, Clarke J. stated at paragraph 8.8:-
72. It was submitted by the appellant that if a solicitor had been present throughout the interviewing of Barry Doyle, the interviews would have proceeded differently. But it is by no means clear that that would have been of any great assistance to him; the questions would still have been asked and he could well have been in the same situation of deciding that he was going to confess to the extent, limited in degree as it was, that he actually did in interview 15 and followed up in later interviews. 73. The right to silence does not imply a right not to be asked questions by the Gardaí There are express statutory powers, such as under the Offences against the State Acts which entitle the Gardaí to arrest a person on reasonable suspicion and which also permit them to interrogate the suspect during the period of custody. He does not have to answer their questions except insofar as legislation contains specific statutory obligations or insofar as it carries implications in the event that a suspect does not answer questions, but neither of those issues arose. 74. The Gardaí had lawful power to arrest Barry Doyle and to interrogate him, but he was entitled to refuse to answer any questions or to answer some and not answer others. There is a tension between these different rights and they are balanced by the obligation on the Gardaí to operate the legislation in a manner that is constitutionally valid. That means that the suspect must be dealt with in accordance with the statutory regime providing for arrest and custody and application to Court for extensions, as appropriate; he must be treated in conformity with the Rule for Treatment of Persons in Custody - although some breaches of those regulations will not be fatal to the admissibility of evidence obtained, but that is a matter for the Court to determine and no such issue arises here. The suspect must also be treated generally in a manner that is constitutionally fair. Obviously, any statements or admissions that he makes must have been obtained voluntarily. There cannot be oppression, which is a very general term, just like the obligation of fairness and which would out-rule, for example, bullying or intimidation or anything of that kind. At common law, as well as under the constitutional regime, inducements or threats designed to overbear the will of the suspect so as to get him to confess are illegitimate and will invalidate any information received. 75. In assessing the question of oppression and the fundamental fairness of the interviews, the key factor is that the all the interviews were videotaped and were available to be viewed and most were in fact viewed by the trial judge. He was able to see precisely what went on in the course of the interviews. This impersonal objective recording of exactly what happened and what was said distinguishes this case from others in which there was dispute about the facts alleged to constitute ill-treatment. The custody regulations were complied with. The questioning may have been repetitive but there were breaks. There was access to a solicitor. 76. It is significant that Barry Doyle described his own role in the murder but was careful not to involve anybody else, which implied control over the process of revelation and a freedom of choice that is not consistent with oppression and unfairness. 77. The appellant has not shown that the observations and conclusions reached by the trial judge are in any way incorrect and this Court endorses them. 78. Overall, therefore, on these Grounds 1 to 7, relating to the decision by the trial judge on the admissibility of the confessions/admissions made by Barry Doyle, the Court’s view is that the appellant has not established that the trial judge was in error in the conclusions he reached. There is no basis for suggesting that the judge misunderstood or misapplied the law on oppression or fairness. 79. These grounds are accordingly rejected. Ground 21: Withdrawal of Confession of Evidence 81. The appellant contends that the learned trial judge ought to have “withdrawn from the jury the admissions” of the appellant on the grounds that “there was ample evidence they were made as a consequence of inducement by members of the Garda Síochána”. (b)(i) April Collins’s Telephone Records 83. On 7th April 2011, April Collins and her mother, Alice, reported to Garda James Hourihane that they had been threatened by John Dundon and Wayne Dundon. The Garda reassured them and gave them his mobile phone number as a point of contact. Ms. Collins and her mother made statements about the threats at Henry Street Garda station the next day, 8th April 2011. The Garda dealt with Ms. Alice Collins as one of two Gardaí taking her statement and reading it back over to her. Two colleagues dealt with Ms. April Collins at the same time. 84. Garda Hourihane was assigned as a liaison person with the complainants and he was in ongoing contact with them by mobile phone from that time on. He was appointed because of the nature of the allegations and concern for the safety of the women. In that capacity, he was contacted numerous times by Ms. Collins and her mother and if any immediate risk arose, he passed on the information to the appropriate station and it was dealt with from there. His contact with the women was by mobile phone, which was nearly every day and it could be up to three or four times a day. 85. On 18th or 19th April, Ms. Collins told Garda Hourihane in a call that she had information about serious crimes in Limerick including murder. He did not enquire about the nature of her information but relayed what she had said to his Sergeant. The Garda met Detective Superintendent Browne in his office and then made an appointment for Ms. Collins, who again came to Henry Street Garda station with her mother on 20th April. On that occasion, Ms. Collins made her statement implicating Barry Doyle in the murder of Shane Geoghegan on which her evidence at the trial was based. 86. Garda Hourihane did not know of another attendance at a Garda station between 8th and 20th April, but thought it was possible and, if it happened, it might have related to more threats, this time from another member of the Dundon family. 87. The witness emphasised the serious threat that there existed to Alice and April Collins and said that “numerous issues arose regarding their safety”. He passed on the information on this to the local stations and to his superiors. 88. The defence solicitors sought in correspondence to get information and disclosure as to anything that had happened involving Ms. Collins between 8th April 2011, when she and her mother made their statements about the threats, and 20th April, when Ms. Collins made her statement incriminating Barry Doyle. The prosecution had provided the defence with a large bundle of disclosure in late December. Even more recently, the prosecution supplied a statement from Garda Hourihane dated 19th January 2012. Arising out of that statement, the solicitors sent another letter referring to the statement and suggesting that there had to be material relating to the disclosures about their safety made by April and Alice Collins and to the references by the Garda to his superior officers and “there must be material concerning the arrangement to have April Collins brought in, in order that those matters be amplified in a statement”. 89. Counsel raised those concerns on 2nd February 2015 before April Collins gave evidence. There were exchanges between Counsel in which prosecuting Counsel sought to reassure the Court and defence Counsel that full disclosure had been made. The trial judge rose briefly and then returned, saying that he had considered the application and was satisfied that the prosecution had fulfilled its duty in regard to disclosure and that the trial should proceed. Counsel for the prosecution then said that in the absence of the jury, he would call Detective Garda Hourihane “because I just want to put the matter on record”. The Garda then gave his evidence as outlined above. In the course of cross-examination by defence Counsel, the Garda said that he had not made any records of the calls between April and Alice Collins and himself. He used his personal mobile phone. This is the background to the request made by Counsel for the Garda’s telephone record insofar as they disclosed when the Collins’ contacted him over that period and for how long. He was not seeking general access to the phone records but merely those relating to the communications with Ms. Alice and Ms. April Collins. 90. Counsel for the prosecution objected. 91. On the following day, the defence returned to the issue and requested access to the phone records of Ms. April Collins. 92. Counsel’s argument was that the material that he was seeking formed the basis of a legitimate enquiry about how often the Collins’ ladies contacted Garda Hourihane and vice versa and what those matters were about. Prosecuting Counsel objected on the basis, first, of relevance, and then of privilege. He maintained that there was no issue in the case to which the disclosure of the phone records was in any way related. The Garda had given his evidence, including his description of the frequency of the calls. The trial judge ruled that the Detective Officer had given the information in response to Counsel’s questions and he did not think that it was necessary in the circumstances that he should now receive his telephone records. The same point applied in respect of April Collins’s records. 93. There is no dispute on the law. The appellant cites DPP v. Special Criminal Ward & Paul Ward [1999] 1 IR 60, in which the prosecution disclosure obligations were described as follows:
95. The respondent argued that Garda Hourihane was called to give evidence in the absence of the jury and the defence was given the opportunity to make any enquiries they wished. It was only during this cross-examination that the defence made a demand for the Garda’s telephone records. It was submitted that this was an attempt to defer the evidence of April Collins. It was difficult to envisage how the records that were sought could be of any possible relevance to the defence case, given that they would merely disclose the time, date and duration of calls made. The evidence was that April Collins and her mother needed protection and it was not in dispute that there was regular frequent daily contact between April Collins and the Liaison Officer, Garda Hourihane. In those circumstances, the phone records were irrelevant as the trial judge held. 96. The respondent argues that the records could have added nothing to the information given by Garda Hourihane and Ms. Collins that they were in frequent contact about her security. 97. The prosecution did not actually have the records; if they had them, they would have handed them over but they would were merely given information, as stated above, which could not, on any view, be considered relevant to the case. Discussion 99. On this question, the learned trial judge was entirely justified in his decision to reject the application and to order that the trial proceed. The same points arise in regard to the telephone records of April Collins as in the case of Garda Hourihane. (b)(ii) Re-examination of April Collins 101. Defence counsel cross-examined Ms Collins with reference to the precise words that she had used in testifying about the exchange that took place between John Dundon and Barry Doyle. The witness said it was correct that John Dundon said to Barry Doyle: “what did the man you killed look like?”. Counsel repeated the question to confirm that those precise words were spoken: “I’m asking you do you stand by that evidence?” The witness’s reply was: “he asked him to describe him because he was on the phone with a certain - with another man, John Dundon was at the time.” Counsel persisted with his queries, asking whether John Dundon used the words: “Describe the man you killed?” The witness said that that was correct. 102. Prosecuting counsel re-examined the witness and proposed to take her through her statement but the defence objected. The trial judge permitted the prosecution to put the following question by way of confirmation of what the witness had said in her statement to the Gardaí: -
That's correct.” 104. This Court is satisfied that the learned trial judge was correct in permitting this re-examination. It would have been not only unfair to the witness but seriously misleading to prevent the record being corrected as to what the witness had actually told the Gardaí. It is the function of the trial judge to ensure fairness and that is what happened in this case. This witness in her evidence described the conversation taking place in the context of a question about the identity and description of the man Barry Doyle had killed. She had described that context in her statement to the Gardaí and also in her direct evidence and in her cross-examination. Counsel sought to procure the witness’s agreement to a precision of description of reported speech that was quite unreasonable and unrealistic. The witness spoke in a manner with which any experienced advocate or judge is familiar. The trial judge avoided a potentially serious injustice by the ruling that he made. 105. The respondent is correct in submitting that in circumstances where the suggestion was made in cross-examination that the witness had fabricated the account of the meeting and conversation, the relevant part of the statement the witness had made to the Gardaí was admissible to rebut an incorrect conclusion. (c) Victoria Gunnery - Evidence of Medical Appointment 107. It was submitted that the evidence was highly prejudicial, of no probative value and could only have the effect of misleading the jury on an issue that was critical to the defence case, namely, the appellant’s belief that his daughter had been deprived of a vital hospital appointment. 108. The respondent submitted that the evidence was relevant in circumstances where the defence relied upon remarks made during the course of interview by the Gardaí or by the appellant himself concerning his relationship with and concern for his child. Whatever the reason for the incorrect information the fact was there was no appointment that day. Furthermore, even if the appellant had actually believed that there was an appointment, having regard to the poor attendance record at previous medical appointments it was unlikely that such would have been a major concern. The evidence was relevant to the issue raised by the appellant and the defence. 109. The Court permitted the evidence to be called on the basis that it was relevant to weight. 110. This Court is of the view that the prosecution was entitled to call evidence to establish the truth about the situation. It was relevant that even as an incorrect belief, it was unlikely to have been an operative factor in the appellant’s thinking because of the previous missed appointments. The accurate information was relevant to the belief allegedly held by Barry Doyle. 111. The jury were entitled, when considering the case as a whole and in light of their judgment of other issues in the case, to come to a conclusion that this was not a genuine concern. They were entitled to accept or reject Barry Doyle’s expression of concern for his daughter’s hospital appointment as something relevant to his admissions. 112. The conclusion of the trial judge that this was a matter that went to the weight of evidence was therefore correct. (d) The Judge’s Charge (i) Judge’s charge in relation to admissions 114. The respondent submitted the trial judge’s charge in respect of the voluntariness of the confession, the alleged inducements and dissipation was correct and that the appellant was barred from criticism as the charge was accepted by counsel for the appellant at trial, citing DPP v. Cronin (no.2) [2006] 4 I.R. 29. 115. In the grounds and submissions, the appellant raises six complaints about the judge’s charge which will be considered in sequence. 116. Counsel’s first objection to the judge’s charge was on the subject of inducement or threat. He argued that the solicitor Mr. O’Donnell “sought to broker the arrangement between the applicant and the Garda in furtherance of the threats and inducements” and the judge did not take up that point or adopt it in the course of his charge. 117. The prosecution submitted that the judge did in fact refer to this evidence of the solicitor’s involvement, suggesting that the “difficulty for the appellant is that the only evidence available shows clearly that, as a result of the solicitor’s efforts it was expressly stated by both sides that there was no deal, in other words, no inducement was being offered or accepted”. 118. It would not have been correct for the judge to tell the jury what the appellant wanted him to say. There was a major dispute between prosecution and defence, not as to what had happened in the discussions between the Gardaí and the solicitor, but as to the correct interpretation thereof. There was no basis on which the judge could have himself decided that the transaction was the attempted conclusion of an agreement between the Gardaí and Barry Doyle. The significance of this event was a matter for the jury and not the judge. 119. In regard to the question of dissipation of any inducement or threat, before the judge embarked on his charge he sought the assistance of counsel and told them in advance how he intended to deal with issues concerning inducements, in the course of which he referred to dissipation as something he would be dealing with. Counsel for the appellant did not protest or express any disagreement about that but in fact indicated agreement. 120. The issue of dissipation is a common feature in regard to inducements or threats and it was scarcely necessary for any of the parties to raise it as an independent, free-standing argument. The fact that the judge decided to tell the jury about this relevant legal concept for application if appropriate to the facts of the case cannot furnish a legitimate ground for considering that the trial was unsatisfactory. 121. The appellant complains that the judge did not tell the jury that in interviews 16, 20 and 21 there was evidence that he “was still occupied by the matters concerning the welfare of his child and partner”. This is another example where the appellant complains that the judge did not put his side of the argument to the jury as the judge’s own view or as an established fact. It is not the function of the trial judge to make another speech either for defence or prosecution. That also would have been encroaching on the function of the jury. 122. The appellant criticises the way the judge dealt with the burden of proof on the issue of inducements. He accepts that following requisitions the judge said that the prosecution had to prove beyond reasonable doubt that the confessions of Barry Doyle were voluntary and that the truth of the statement was irrelevant. It was accepted that at the beginning of the charge that trial judge told the jury that the onus was on the prosecution to prove every single element of the crime, that there was no onus on the accused and that where an issue was raised as to a presumption that there was an onus on the prosecution to establish beyond reasonable doubt that the presumption had not been rebutted. 123. The question is whether the judge’s charge overall properly covered the relevant issues, instructed the jury about the legal principles that they had to apply, outlined the prosecution case and the defence case fairly and reasonably and directed the jury to the issues that they had to address in coming to a verdict and the means by which they could achieve their task. 124. In Coonan and Foley, The Judge’s Charge in Criminal Trials (Roundhall 2008) at para. 2-03 it is stated:-
(ii) Judge’s Charge in relation to April Collins 127. The respondent contended that the terms in which the learned trial judge charged the jury in relation to the evidence of April Collins very closely reflected the issues identified by counsel for the appellant. 128. The suggestion that the warning was given only in terms of the defence case and not as a warning from the trial judge ignores the very clear warning in the original charge to that effect and in the second part of the re-charge after requisitions. This ground fails. (iii) Judge’s charge in relation to Ballistics Evidence 130. The respondent submitted that the charge in relation to the possible corroboration of the confession from the ballistics evidence was in fact quite favourable to the defence in that it did not dwell in any detail on the remarkable similarities between that evidence. No requisition was raised by the defence in relation to this aspect of the charge and, in those circumstances, it was submitted that the appellant cannot now make complaint in that regard: People (DPP) v Cronin (no. 2). 131. By way of detailed rebuttal the respondent cited the evidence of Dr. Hannigan, the forensic scientist, that there would only be residue of propellant powder if a shot was discharged at very close range. It was not the case, therefore, that the evidence excluded close range. The absence of such evidence on the clothing of the deceased was of limited significance. First, it was not inconsistent with the appellant’s account of shooting the deceased from the same distance as that which separated him from the interviewing Gardaí in the interview room. Secondly, that suggestion was consistent with the scene of crime evidence and the sketch map that the appellant drew. The murder weapon had never been recovered so it had not been possible to carry out tests to establish the range from which the gun would leave residue on clothing. The prosecution relied on evidence of trajectory and direction as well as the location from which shots were fired. 132. The respondent submitted that the extent to which ballistics and scene of crime evidence corroborated the account given by the accused was actually understated in the charge. For the judge to have said that the range at which the shots were fired was capable of corroborating the confession of the appellant was a significant understatement of the weight of the evidence from the prosecutions perspective and the defence can have no complaint about the account from the trial judge because any such inaccuracy operated to the advantage of the defence. 133. This matter was not the subject of requisition. The judge understated the potentially corroborative material in the forensic and technical evidence. It is correct that there was not corroboration in the closeness of the shot by reason of any residue on the deceased’s clothing. However, the reference was minor in the circumstances and in the context of the technical evidence as a whole the charge was favourable to the defence. 134. In the circumstances, having regard to People (DPP) v Cronin (no. 2) and the overall status of this comment, this ground fails. (e) Jury material - Admission of Memos and Video of Interview 136. The respondent complains of the manner in which defence Counsel raised these objections which resulted in a certain amount of confusion, and in a ruling made by the trial judge in favour of the defence in the first instance which he reversed on reconsideration. Addressing the particular arguments put forward in the appeal, the respondent first addresses the question as to whether memoranda of interviews may be given to the jury as exhibits. The respondent submitted that the test for admission of a written memorandum of a confession as a documentary exhibit is whether it has been acknowledged by the accused to be correct. 137. In respect of the showing of the videos of the interviews, the respondent submits that the principal test for admissibility of evidence is relevance. Evidence is relevant “if it is logically probative” as Kingsmill Moore J. said in People (A.G.) v. O’Brien [1965] I.R. 142 at 141. McGrath, Evidence (2005, Thomson Round Hall, Dublin) quotes this observation and continues at p. 2:
139. The respondent cites a number of English authorities. In R. v. Emmerson [1991] 92 Cr. App. R. 284, the English Court of Appeal gave guidance on the use of video recordings of interviews and transcripts as follows:
2. If only part of the tape had been played in open Court, and the jury had a transcript of the whole, there was no reason why the jury should not take the whole tape. 3. If only part had been played in open Court and the jury had no transcript, the tape should be edited so that the jury did not take any evidence that had not been given. 4. There was no advantage and some disadvantage in reassembling the Court to enable the jury to re-hear a passage of tape which they had already heard in open Court. It would not serve any useful purpose and could only cause inconvenience.” 141. In R. v. Rawlings & Broadbent [1995] 1 W.L.R. 178, the Court of Appeal gave general guidance on the use of videos of a complainant’s evidence which was adduced as the evidence in chief of the complainant in reliance on statutory provisions permitting that to happen. The Court said:
142. The Court follows the Irish decisions cited above on the admissibility of written memoranda of admissions when they have been acknowledged by the accused person or when they are edited versions taken from larger memoranda or recordings that have been acknowledged. This is in accordance with settled practice over many years and cannot be considered to be unfair. It would indeed be unfair if the jury were to be deprived of the accurate record of the words actually spoken by the accused in the relevant interviews. The precise words are of immense importance and it would be wholly unsatisfactory for the jury not to have the exact words. 143. The Court also adopts the helpful guidance given in the English cases. The evidence of the video recordings was admissible. The jury was entitled to see what the accused man said to the Gardaí and how that came about and what were the conditions of interview. There was an issue as to whether he was subjected to oppressive conditions such that his admissions made to the Gardaí were not reliable. The videos were evidence of his demeanour and of those who were questioning him at the time when he made his admissions and of the circumstances in which he made the admissions. 144. It was permissible for the prosecution to edit the videos. In the first place, insisting on showing all of the video recordings would have been unduly burdensome on the jury and a waste of Court time when there was nothing relevant in large parts of the recordings. Secondly, it was important that irrelevant or prejudicial or damaging material to the accused man should be excluded. Thirdly, there was no reason for the jury to speculate as to what other material might have been included. After all, the material that was played to them was evidence incriminating the accused man and there was no basis on which they might have thought that there was other material incriminating him that they were not being shown. More importantly, the trial judge properly instructed the jury that they were to take into account only the evidence that was given before them in Court. 145. It was open to the defence to apply to the Court to have other material put before the jury from acknowledged interviews or in the form of video recordings. The test, as stated above, is one of relevance. 146. This Court considers that it is a matter for the prosecution to decide which witnesses and how many to call in order to prove the case. The trial judge, however, has a discretion to prevent unfairness by reason of unreasonable repetition or overloading of the time and attention of the jury, but the prosecutor must be given a generous margin of error. 147. Written memos of interviews are usually supplied to the jury in edited and redacted form so as to include relevant material and to exclude prejudicial matter and there is nothing wrong with that. Video evidence shown for legitimate forensic evidential purposes may also be edited in the same way. 148. The prosecutor can choose to adduce video evidence if it is justified by a legitimate evidential purpose and is not excessive or unreasonable. Among such purposes are the demeanour of the interviewee or of the interviewers or the atmosphere in which the questioning took place or any other matters that are relevant to the issues in the case. The defence may apply to have further written or video material given to the jury or shown, subject to the same rules of evidential relevance. 149. It is not a legitimate defence objection that the material the prosecutor puts before the jury is not balanced by having material that is exculpatory included with it, subject to the trial judge’s general discretion in regard to fairness. 150. The advantage that a trial judge has over an appellate Court is that of seeing and hearing the witnesses. He is able to evaluate their testimony using his judgment of their demeanour as well as their words. He hears what they say and sees how they say it. There is no rational basis on which a jury should be deprived of that opportunity when it is available and when the evidence is relevant to an issue that the jury has to determine. (f) Damache - Lawfulness of the Arrest and allegedly Tainted Confession 152. The appellant was arrested during a search of his home on foot of a warrant issued under section 29 of the Offences Against the State Act 1939. The appellant now argues, following Damache, that his arrest and subsequent detention were unconstitutional and any admissions made during his detention must be excluded. 153. Although this issue was not raised at the trial, the appellant relied on the words of Hardiman J. in The People (DPP) v Barry O’Brien [2012] IECCA 68:
(i) The matter has been raised at the court of trial and the appellant has taken no steps which suggests that he has acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge. (ii) The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending.” 155. The respondent submitted that the appellant implicitly accepted that his arrest had been lawfully effected when prosecuting counsel in opening the issue on the voir dire told the trial judge that on 24th February 2009:
‘The matter has been raised at the court of trial and the Appellant has taken no steps which suggest that he is acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge. The criminal proceedings against the Appellant have not been finalised and either a trial or an appeal from conviction is still pending’.”
157. The appellant did not raise the issue of the lawfulness of his arrest and subsequent detention in the course of the trial. In fact, he did not demur when the lawfulness of the arrest was asserted. It is clear that his situation is wholly different from that of the successful appellant in O’Brien. The reasoning of the Court of Criminal Appeal in that case and in Patchell is clear authority for the rejection of this ground in this case. 158. Moreover, People (DPP) v. Cronin (no. 2) generally disallows the raising of a point not argued at trial. In the result, the appellant is not now entitled to rely on Damache having at no stage taken any issue with the lawfulness of his arrest during the course of the trial. Conclusion 160. The Court is satisfied that none of the grounds of appeal can succeed. The trial was satisfactory and the conviction of Mr. Doyle was safe. |