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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- P.C. [2015] IECA 154 (20 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA154.html
Cite as: [2015] IECA 154
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Judgment
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THE COURT OF APPEAL [98/14] The President Finlay Geoghegan J. Peart J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/RESPONDENT AND
P.C. APPELLANT JUDGMENT of the Court delivered by the President on 20th July 2015 Introduction The Facts 3. The girls returned to school in a distressed state following the incident and reported what had happened to the Principal and Vice-principal, to whom they gave the money. The Gardai were contacted. 4. Gardaí viewed CCTV footage which showed a grey haired man leaving the scene in a green Jaguar. A witness told the Gardaí that she believed the man’s name was C. A Garda enquiry revealed a green Jaguar registered to P.C. and accordingly he became a person of interest. At this time, the appellant was being detained in Castlerea prison in respect of other matters and the Gardaí needed a warrant from the District Court to authorise his removal to a Garda station for questioning. 5. On foot of the above and other information, Superintendent Curley applied for and was granted a warrant under s. 42 of the Criminal Justice Act 1999, as amended, on Wednesday 12th October 2011, which he endorsed to Sergeant Sheridan. On Saturday 15th October 2012, Sergeant Sheridan and Garda Costello travelled to Castlerea Prison, where the Garda arrested the appellant on foot of the s. 42 warrant and he was brought to Castlerea Garda Station where he was detained and questioned. 6. The suspect requested a solicitor, Mr. Conor MacGuill, and the gardaí made contact with Mr. MacGuill who spoke to the appellant for 14 minutes. The solicitor also spoke to Sergeant Sheridan. The consultation on the phone between solicitor and client took place before any questioning occurred. 7. It is relevant to note that the account given by the two schoolgirls was not challenged by the defence. Counsel did not cross-examine either of the complainants. The only issue in the case, accordingly, in relation to the facts was evidence that it was the accused who approached the girls. Relevant to that proof was that he had been connected with the incident by information about his unusual car. Grounds of Appeal
10. The evidence was that the accused approached L.G. and C.R. and gave them €5 and asked them to “spend the night in bed with him” - according to the evidence of L.G. C.R. said that the man approached them, threw money on the table and said “is there any chance of me and you two lovely ladies tonight?” These were young teenage girls who were in school uniforms and who went back to school in a quite troubled state and reported the matter to the Principal of the school. 11. It seems almost too obvious to say that it was a matter for the jury to decide whether the statement or statements by the accused man amounted to an invitation to engage or participate in a sexual act. Indeed, it seems that it would be eccentric to decide that the words, if accepted by the jury, could have amounted to anything other than an invitation to participate or engage in a sexual act.
12. Superintendent Curley obtained the warrant from the District Court, and in accordance with the Rules of the Court, he was nominated as the person to execute it. He endorsed it to Sergeant Sheridan, who travelled with Garda Costello to Castlerea prison on the Saturday morning, where the Garda arrested the appellant. 13. Section 42 of the Criminal Justice Act 1999 provides for the arrest and detention of persons in prison in connection with the investigation of other offences. Section 42(2) provides:
(b) the arrest of the prisoner is necessary for the proper investigation of the offence.” 15. The Gardaí had information to connect the appellant with the offence that they were investigating. He was on remand in Castlerea Prison. They wished to interview him and they wanted to do so in a location that had recording facilities for interviews, and that, again, was entirely proper. It is a protection for the accused, as has been emphasised on many occasions by the Court of Criminal Appeal, and indeed in the ECHR, that interviews be fully recorded. 16. Neither is there anything in the point about the Member in Charge at Castlerea Garda station being in default. The section expressly provides that a person can be detained under s. 4 of the 1984 Act, once he has been arrested on foot of the warrant. It was sufficient, therefore, that the Gardaí should notify the Member in Charge of the general circumstances, but in fact the evidence is that the Garda in charge, Garda Kenny, was satisfied that it was necessary for the investigation of the offence. 17. As to what was necessary for the investigation of the offence, that is not an absolute, in the sense of establishing that without such a process i.e. an interview, the case could not be investigated. It is practically an invariable step in the investigation of a crime that the person suspected of committing it is interviewed. It does not follow that every person suspected of a crime, or that every person suspected and then interviewed, is going to be charged. The purpose of questioning a suspect is to consolidate or dispel suspicion. The next step, therefore, in the case of a suspect when the evidence materialises from what he says to be sufficient to charge him, is that he may be brought before the District Court. Otherwise, he has to be released. That is what happened in this case.
18. This evidence was admissible. The condition of the girls on their return to school was relevant to show the effect that the words used by the appellant had had on them. The children who were approached with lewd suggestions were made. It might nevertheless have been suggested to the jury to question whether the children took this as a joke or as something that was not to be taken seriously for some other reason. The appellant’s submissions refer to the evidence of one of the girls that she was annoyed, but this independent testimony was different. The fact that they were in a distressed condition indicated that the persons who heard the words had taken them seriously.
19. It is also to be remembered that he had a conversation lasting for some 14 minutes with his solicitor, and if the latter had thought that there was some lacking of understanding in the appellant, he would surely have communicated that to the gardaí and taken steps to deal with it. Alternatively, he could have had longer in advising his client.
20. Neither the solicitor nor the appellant asked for the interview to be postponed until Mr. MacGuill could get to Castlerea Garda station from Dundalk. Neither did the appellant or Mr. MacGuill ask to have a solicitor present during the interview itself. There was some question raised in the conversation between Mr. MacGuill and Sergeant Sheridan as to getting a local solicitor but that did not proceed. What happened, therefore, was that the solicitor had a 14-minute conversation with his client. 21. The appellant was given a form designated C72, which is the standard form that tells him about his rights as a person in custody in a Garda station. That included information about access to a solicitor. It did not say that he could have a solicitor present during the time when he was being interviewed. That is a later development in the law.
22. This an area of developing jurisprudence, having regard to decisions of the ECHR as well as other common law jurisdictions. It was previously considered that the Gardaí did not have to wait for the arrival of a solicitor whom they had notified and requested to attend before they commenced questioning - see DPP v. Buck [2002] 2 IR 268, holding that it was a matter for judgment in the circumstances of the particular case and the Supreme Court was satisfied to leave the matter to the discretion of the trial judge. That was subject, of course, to review if exercised unreasonably in the circumstances. However, in Salduz v. Turkey [2008] 49 EHRR 421, the Court held that there was a requirement for access to a lawyer in order for the subsequent trial to be considered fair. This was subject to exceptions in particular circumstances, but that does not concern us here. It may be remarked that like many other cases that give rise to general principles, Salduz was an extreme case, a situation where the suspect was deprived of any access to a lawyer over a lengthy period during which he was questioned. Nevertheless, the point is that the Court emphasised the need, unless there were special exceptional reasons for a lawyer to be available to give advice, and that meant that the suspect was entitled to be advised by a lawyer before he was subjected to questioning. At para. 55, it was stated that:
26. Since 7th May 2014, in response to the implications of the Supreme Court judgments, solicitors are permitted to be present during interviewing of suspects. This is because of an administrative decision made by the Department of Justice and obviously follows the pattern of the development of law, as indicated in these earlier cases. The appellant’s submission says that this was merely a recognition of the law, as it stood at October 2011, when the appellant was brought to Castlerea Garda station under arrest. That was not the law as it stood at that time. The position was as declared by Lavery v. Carrickmacross. 27. A developing area of law, such as this is, cannot be retrospectively imposed on a situation that obtained years before the development took place. Moreover, the fact that the Supreme Court, in 2014, was not prepared to go further but merely to leave the question open is an indication of the uncertainty of the present situation were it not for the decision to permit lawyer access during questioning. Thus, the issue now does not arise in cases where people are arrested and brought to a Garda station and questioned. It is quite correct to say that in the situation as it obtains at present, a person who is arrested and going to be subjected to questioning has a right to have his solicitor available for consultation before the questioning begins, and also, if desired, to have the solicitor present during the questioning. 28. The Gardaí at Castlerea Garda station cannot be accused of ignoring this right in circumstances in which it did not actually exist because it had not been declared. It is worth noting, first of all, that the ECHR cases are very extreme and very different from anything that the Irish courts have to deal with. Furthermore, the Court of Human Rights has itself not actually declared that there is a right to have your lawyer present throughout the period of questioning. So, it is to going much too far to suggest that that entitlement existed in October 2011. 29. Having said that, the evidence at the trial in the absence of the jury on the admissibility question was that the Gardaí understood that the appellant did indeed have that right, and Sergeant Sheridan understood that the Member in Charge had explained that to the appellant. It is true, as Counsel pointed out in cross-examination, that the C72 form did not contain any such declaration of entitlement, about which there is no dispute. Garda Kenny, who was the Member in Charge when the appellant was brought to the station and when the interviewing began, said that the appellant was entitled to have his solicitor present during the interview and that he would have been told. 30. The position, therefore, was that the appellant had a right to consult his solicitor and he did so when he spoke with Mr. Conor MacGuill on the phone. The solicitor did not ask to be present during the interview or to hold off while he arranged for another solicitor to attend and neither did the appellant. 31. In all the circumstances, therefore, there is no ground under this head for invalidating the custody and questioning of the accused man. That, of course, is without taking into account the impact of the recent decision of the Supreme Court in DPP v JC 15th April 2015. The fact is that on the existing law before that decision there would have been no ground for invaliding the questioning of the appellant.
32. In the face of the disagreements between Counsel, the trial judge made a ruling on each disputed item as to what materials were to go in and what not. He allowed some objections and disallowed others. He permitted the text to be adapted so as to exclude prejudicial material but to include relevant statements or admissions by the appellant. In each instance, the trial judge gave his reasons. He dealt carefully and in detail with each point. 33. It is not the function of this Court to rehear the case or to decide whether it is possible to come to a different conclusion than the trial judge in respect of some of the parts of the memorandum on which he ruled. The Court is satisfied that the trial judge approached this task in a proper and careful manner with a view to doing justice. In fact, this Court does not find any significant area of the memorandum on which it would take a different view. In any such exercise of judgment, it is possible to come to a different view or to conceive of another solution to the one actually adopted but that does not make the decisions in question wrong. 34. It is obvious that questions in themselves are not evidence, but the information in a question may become evidence in light of the person’s answer to the question. It is just the same as in the cross-examination of a witness in Court. What Counsel says is not evidence unless the witness says, yes, I agree. Alternatively, the witness may agree subject to some qualification. In those circumstances, both question and answer are receivable by the Court, whether judge or jury, to consider. 35. The appellant objected to two statements in the form of questions, or rather, introductory comments or information being given to the suspect. The judge allowed them to be included in the memorandum and it was reasonable to consider those as giving information to the appellant for the purpose of the interview. Another judge might have ruled the other way but that does not make the ruling defective. On balance, it may have been preferable not to have that material included in a memorandum going to a jury, but it is not an important matter in the context. 36. The appellant objected to the following excerpt from the interview:
Answer: I’ve done do many that I can’t remember. I probably did” 37. It can be suggested that the trial judge made some errors of judgment but this Court is satisfied that any such decisions were minor in the circumstances and can find no serious or substantial errors on the question of admissibility.
41. Having made these criticisms, however, the judge’s comment has to be seen in context. It comes at the end of a substantial charge. The Director submits that the trial judge explained in a thorough fashion the duties and responsibilities of the jury and how they should approach the task. He dealt with all the requirements of proof and gave what is overall a full, fair and satisfactory charge. It seems to this Court from the context that the comment is infelicitous but not important and it does nothing to detract from the full and proper instruction given to the jury.
Conclusion
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