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THE COURT OF APPEAL
Birmingham J.
Sheehan J.
No. 209/09
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on the 30th day of November 2015, by Mr. Justice Birmingham
1. On the 28th May, 2009, in the Central Criminal Court, a jury convicted the appellant by a ten to two majority of the murder of Mr. Frank Ryan on the 17th September, 2006, in Moyross, Co. Limerick. On the 8th July, 2009, the appellant received the mandatory life sentence which was backdated to the 23rd September, 2006. Mr. Campion now appeals his conviction to this Court.
Background
2. The key facts as alleged or proved at trial may be summarised as follows. The deceased was driving his Toyota car, accompanied by a Mr. Erol Ibrahim, a friend of his, in the Moyross area of Limerick on the 17th September, 2006. When they left the deceased’s home in Delmege Park, they drove approximately 100 metres around the corner and there picked up the appellant, Mr. Gary Campion. The appellant sat in the rear of the car. The allegation is that as the deceased was driving, the appellant leaned forward and shot the deceased in the back of the head and then leaned in between the two front seats so as to steer the car until it came to a stop. The appellant then got out of the car, went around to the front passenger seat and leaned in over Erol Ibrahim whereupon he shot the deceased again. The appellant is alleged to have made threats to Mr. Erol Ibrahim and then to have left the scene.
3. Mr. Ibrahim gave a number of statements to the gardaí. In his initial statement, made very shortly after the incident, he denied knowing who shot the deceased. This was repeated by him the following day and he was then arrested for withholding information. While detained following his arrest at Moyross garda station, a member of the family of the deceased, a Mr. Peter Ryan, arrived at the garda station wishing to see the detainee. When he met Mr. Ibrahim, Mr. Ryan conveyed to him the family’s wish: that Mr. Ibrahim should tell the truth and that if he did this, he would not be labelled a “rat”. Mr. Ibrahim then declared that it was the appellant who shot the deceased. This declaration was not video taped, but a short memo was taken by gardaí. In subsequent video taped interviews, the appellant repeated, and to some extent expanded upon, what he had said during the encounter with Mr. Peter Ryan.
4. The other evidence of significance at trial was that the gardaí contended that when, on the 23rd September, 2006, the appellant was arrested, on the way to the garda station he made certain incriminating comments that were copied down by one of the gardaí who was present, Detective Sergeant O’Callaghan. During the course of subsequent interviews with him while detained, the appellant was questioned about these alleged remarks and he denied making them.
The grounds of appeal
5. In the written submissions a number of grounds of appeal relating to Mr. Ibrahim were outlined. The key feature of the trial was that statements of Erol Ibrahim made out of court and from which he resiled were sought to be admitted in evidence for consideration by the jury pursuant to s. 16 of the Criminal Justice Act 2006. Just as the focus of attention at trial was on the Ibrahim statements, so too the decision of the trial judge to admit the statements into evidence, and the subsequent treatment of the evidence at trial formed the central feature of this appeal.
Some further background information
6. It should be explained that in the immediate aftermath of the incident Mr. Ibrahim, apparently in a state of some considerable distress, phoned the emergency services. The first gardaí who came on the crime scene commented on his distressed state. In his first witness statement that was made on the evening of the murder, Mr. Ibrahim denied knowing who had shot and murdered Mr. Frank Ryan and repeated this the following day. He was then arrested and detained pursuant to the provisions of the Offences Against the State Act 1939 as amended. During the course of his detention at Moyross garda station, he was interviewed six times. In all, these interviews lasted just short of nine hours. During these six interviews Mr. Ibrahim did not identify the gunman. However, in the course of the seventh interview, which commenced at 16.50 on the afternoon of the 19th September, 2006, Mr. Ibrahim named Mr. Campion as the gunman and then repeated this, and to some extent elaborated on this, during the course of five subsequent interviews.
7. Between the sixth interview and the crucial seventh interview, at approximately 4.30 pm, Mr. Ibrahim was brought by Detective Sergeant O’Callaghan to an interview room. There he met Mr. Peter Ryan, brother of the deceased, who along with other members of the Ryan family had come to the garda station. While the precise details of what transpired in the interview room were the source of some controversy at trial, it appears clear that Mr. Peter Ryan, speaking on behalf of the Ryan family, urged Mr. Ibrahim to tell the truth. Significantly, he is reported to have told Mr. Ibrahim that if he told the truth that he would not be regarded as a “rat”. A note of what transpired in the interview room was taken by Detective Sergeant Cleary, who was also present. This note was signed by Mr. Ibrahim during the course of the last interview that was conducted with him on the 20th September, 2006, which commenced at roughly 8.40 am.
The trial
8. When called to give evidence on the second day of the trial, Mr. Ibrahim reverted to his original position that he did not know the identity of the gunman. He accepted that he had previously told the gardaí that the gunman was Gary Campion. However, he said that this was lies and that he would have said anything in order to get out of custody.
9. As indicated, apart from the statements of Mr. Ibrahim, which were admitted following extensive legal argument, the other significant evidence relied upon by the prosecution was the remarks alleged to have been made by Mr. Campion following his arrest. On the 26th September, 2006, the appellant was arrested and brought to Mayorstone garda station by Detective Inspector Mulcahy, Detective Sergeant O’Sullivan, Detective Garda Cleary and Garda Tony Flaherty. The prosecution case was that, while being brought to the garda station, he uttered certain remarks, which were taken down by Detective Sergeant O’Sullivan in his official notebook. As recorded, these remarks were: “if you left me out longer I would have killed more people. Fucking scumbags is all you are. I will clean up Moyross, not ye. I have lots more to kill. I am glad it was ye that came”. According to the gardaí, Mr. Campion then asked who “ratted” him out and “who were the rats?”
10. The garda evidence was that as the vehicle approached the garda station, the appellant made a further remark directed in particular to Detective Sergeant O’Sullivan. According to the Detective Sergeant, Mr. Campion turned towards him and directed a remark as follows: “The next time I see you, you will suck my cock, you fucking will, if I leave you with anything to suck with, fucking rats.” The appellant was questioned about these remarks while detained in custody and denied having ever made them.
Grounds of appeal
11. The appellant has formulated the grounds of appeal that related to the statements of Mr. Ibrahim as follows:
1. The learned trial judge erred in acceding to an application by the prosecution to admit previous statements of the key prosecution witness, Erol Ibrahim, under s. 16 of the Criminal Justice Act 2006;
2. The learned trial judge erred in failing to reconsider the decision to admit the statements under s. 16 of the Criminal Justice Act 2006 in the aftermath of Erol Ibrahim’s testimony and the testimony of all other witnesses;
3. The learned trial judge failed to direct the jury properly as to the appropriate weight to be attached to statements admitted under s. 16 of the Criminal Justice Act 2006, as well as the need for particular caution in the particular circumstances of this case;
4. In addition, the learned trial judge erred in failing to give any reasons for his decision to admit the statements under s. 16 of the Criminal Justice Act 2006.
12. The principal ground of appeal, that the judge erred in acceding to the application by the prosecution to admit the statements of Mr. Ibrahim, is itself based on ten sub-grounds which were as follows:-
(i) The original statement from which the further statements relied upon by the prosecution continued was not video recorded in breach of the Criminal Justice Act 1984, (Electronic Recording of Interviews) Regulations 1997;
(ii) The original statement was taken in breach of the obligation to caution the witness and in breach of rule three of the Judges’ Rules;
(iii) The original statement was taken in breach of the requirements of fundamental fairness;
(iv) The original statement was not voluntary and was instead the product of undue pressure, threats and blatant impropriety in circumstances where the deceased’s brother was admitted into the interview room;
(v) At the material time the witness was being detained unlawfully as the gardaí had at that stage sufficient evidence to charge him with the offence for which he was being detained namely, withholding information in relation to the possession of a firearm;
(vi) The witness was established as being an incorrigible liar and as such could not be said to understand the requirement to tell the truth;
(vii) The statutory requirement for admission of reliability was manifestly not satisfied in the circumstances;
(viii) The efficacy of the appellant’s right to cross examination of the witness as a safeguard of fairness was entirely blunted when the witness was saying that what was being relied upon by the prosecution was all lies;
(ix) The previous inconsistent statement by the witness amounts to a hearsay statement in respect of which the defendant has not been given an adequate or proper opportunity to challenge either when made or at a later stage. Accordingly, whether or not such statements can in principle be admitted in some cases, it was unfair to admit it in the present case as it amounted to the sole or decisive evidence against the accused;
(x) The admission of these statements was clearly not in the interest of justice in all of the circumstances.
13. A number of grounds arise out of the circumstances in which the encounter with Mr. Peter Ryan took place. It is urged that the evidence in relation to this encounter ought to have been excluded in its entirety with knock on effects for everything that occurred in the station subsequently.
14. The arguments for excluding the evidence relating to the 4.30 pm meeting were summarised in the written submissions as follows:
(a) The statement was not video recorded in breach of the Criminal Justice Act 1984, (Electronic Recording of Interviews) Regulations 1997.
(b) The statement was taken in breach of the obligation to caution the witness and in breach of rule three of the Judges’ Rules.
(c) The statement was taken in breach of the requirements of fundamental fairness.
(d) The statement was not voluntary.
(e) At the material time the witness was being unlawfully detained as the gardaí had at that time sufficient evidence to charge him with an offence for which he was being detained, namely withholding information in relation to the possession of a firearm.
Failing to Record
15. The appellant contends that there was a breach of the Criminal Justice Act 1984, (Electronic Recording of Interviews) Regulations 1997 (“the Regulations”). Under the Regulations the obligation is to record “interviews”. The parties are in disagreement whether what occurred in the interview room constituted an “interview”; clearly so says the appellant, very definitely not says the prosecution and in particular Detective Sergeant O’Callaghan, who was the senior garda figure present on the occasion.
16. It is accepted that there is no definition of interview in the Regulations. However, the appellant draws attention to the definition, referred to in Hooper and Ormerod, Blackstone’s Criminal Practice 2011 (21st ed., Oxford University Press, New York, 2010) at para. D 153, from PACE Code C at para.11.1A: “An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences”.
17. The appellant points out and attaches significance to the fact that the meeting/encounter was facilitated by An Garda Síochána, drawing attention to the fact that, apart from Detective Sergeant O’Callaghan, also present was the Member in Charge of the garda station. The motivation of the gardaí in facilitating the encounter was to advance the investigation.
18. In the Court’s view, the Regulations are concerned with interviews conducted by An Garda Siochána with a suspect. The background to the making of the Regulations was that for many years there were disputes, often at very great length, as to what had or had not been said at interview, and as to whether the gardaí had conducted themselves in a proper manner in questioning the suspect. It is very likely that an individual who is suspected of participation in a serious crime may from time to time be asked questions in relation to it, including questions as to participation/non-participation, guilt or innocence, by family members or by other associates of theirs or by persons linked to the victim, however, that is not what the Regulations are about. The Regulations are concerned with interviews conducted by members of An Garda Siochána at which questions are put and the person questioned is invited to answer. The meeting between Mr. Ryan and Mr. Ibrahim was not an interview. It did not involve the detainee being asked questions which is the essential element of an interview. The Court is satisfied that there was no requirement for videotaping the encounter with Mr. Peter Ryan imposed by the Regulations.
The Judges’ Rules
19. This argument in part overlaps with the question of whether what occurred was an interview at which the gardaí intended to put questions. The gardaí say that the question of cautioning Mr. Ibrahim at that stage did not arise, as they were not about to embark on questioning him. A number of interviews had preceded this encounter, and each of these as well as those conducted subsequently commenced with the administration of a formal legal caution.
20. In the Court’s view, there was no requirement on the part of the gardaí who were not going to put questions to administer a caution. The requirement for a caution arises because absent one, a suspect may believe that there is an obligation to answer questions. Given that in general there is no obligation on an individual to answer any questions, it is important that the person who is being questioned should be entirely clear what his rights are and what his obligations are. It is because that is the purpose which a caution serves that there is no obligation to caution repeatedly. The concern of a court called on to address the significance of what was said is to be assured that the person being questioned knew that he was not obliged to answer, if that was in fact the situation.
21. There is a further and perhaps more fundamental point. Had there been a failure to administer a caution when required to Mr. Ibrahim, that would have had implications for the admissibility of his responses to the Detective Sergeant, if it was intended to use the responses against him, but it did not affect the admissibility of what the witness had to say at subsequent interviews about others.
Taken in breach of the requirements of fundamental fairness
22. The complaint is made that bringing Mr. Ibrahim into contact with a member of the deceased’s family involved a form of unacceptable psychological pressure. Reference is made to cases including The People(Director of Public Prosecutions) v. Shaw [1982] I.R. 1 and The People(Director of Public Prosecutions) v. Paul Ward (Special Criminal Court, Unreported, Barr J., 27th November, 1998) and attention is drawn to the evidence that Mr. Ibrahim was shaking, which it is said is indicative of extreme and unbearable psychological pressure.
23. Consideration of the overall fairness of what occurred cannot be divorced from the circumstances in which the encounter took place. This was not a devious strategy created by the gardaí. The encounter had its origin in the decision of the Ryan family to come to the garda station. It is true that the gardaí then facilitated the meeting, and no doubt this was on foot of an assessment that permitting the meeting to go ahead had the potential to achieve an outcome that would be positive for the progress of the investigation. However, that did not make it unfair. The gardaí were investigating a particularly cold blooded and brutal murder. They had obligations not just to the relatives of the deceased, but to the wider society to solve the crime. In the garda station was a person who had witnessed the crime at close hand, and who, as a matter of virtual certainty had highly relevant evidence to offer. In assessing the fairness of what had occurred, it is important to bear in mind the role and status of Mr. Ibrahim and what the gardaí were seeking to achieve. Mr. Ibrahim was not a murder suspect, even if the gardaí did on occasions comment that his decision not to cooperate and to withhold information was causing them to wonder whether he was merely a shocked bystander, or something more than that. He was a witness with evidence to give which he was choosing to withhold. The gardaí were not seeking admissions or a confession with the intention that the admissions could be used against him in a future trial. The gardaí were seeking information in order to advance an investigation and to assist in solving a serious crime.
24. Viewed in that light, it is clear that the gardaí did not behave improperly. Neither was there unfairness of which the appellant, Mr. Campion, can now complain. The misconception behind the argument made on behalf of the appellant becomes apparent when one considers what the position would have been had Mr. Ibrahim come to court and testified in accordance with what he had said at the later interviews. In those circumstances, would it ever occur to anyone to suggest that there was anything unfair or improper in facilitating the meeting? A life had been taken, naturally the family of the deceased were devastated, there was nothing whatsoever improper in bringing home to Mr. Ibrahim that his decision to withhold information would impact in a very negative fashion on the members of a family to which he was very close.
The statements were not voluntary
25. This is an aspect which will be considered more fully in the context of the consideration of the provisions of s. 16 of the Criminal Justice Act 2006. At this stage, it is sufficient to note that it was an issue that was probed in very great detail during the course of a voir dire that was conducted over a number of days. The trial judge, who viewed the tapes of all the interviews, was in the best possible position to assess this issue. In particular, he was in a position to observe the mood and atmosphere at later interviews and to observe the demeanour of Mr. Ibrahim at later interviews, and did so.
26. In the case of a ruling made in the course of a trial which depends on the assessment of witnesses, an appellate court will be slow to overturn the trial judge’s view because he or she has the advantage of seeing the witnesses being examined and cross examined which puts the trial judge in a superior position to that of the appellate court that only has a transcript. This is consistent with the approach adopted in The People(Director of Public Prosecutions) v. Madden [1977] I.R. 336 at pp. 339/340, where the Court of Criminal Appeal followed the judgment of Holmes L.J. delivered in the Court of Appeal in the SS Gairloch [1899] 2 I.R. 1 at p.18, where he stated as follows:-
“When a Judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a Court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice.”
Unlawful detention
27. The point that is made on behalf of the appellant is that once Mr. Ibrahim named, or purported to name, the murderer, this established that he had up to that point been withholding information. There was therefore, at that stage, all the elements required to charge him with the offence of withholding information. Therefore, there was no necessity to detain him further, and accordingly continuing to detain him was unlawful. The first point that has to be made is that even if it could be established that Mr. Ibrahim was in unlawful detention, it does not follow that any statement made by him would have to be excluded from consideration. If he gave evidence at trial in accordance with the statements made by him, the circumstances in which the statements were first made would be all but irrelevant. If he resiled from the statements and the prosecution sought to invoke s. 16, then the statutory test would come into play. These tests would not be determined by whether he was in custody, lawfully or unlawfully, but by whether the prosecution could satisfy the trial judge beyond reasonable doubt of all the matters required to be established. It is not open to the appellant, Mr. Campion, to assert Mr. Ibrahim’s rights. It is difficult to see how the appellant can assert rights on behalf of Mr. Ibrahim that the latter did not himself invoke. In any event, there does not seem to be a sound basis for concluding that Mr. Ibrahim was in fact unlawfully detained. The arrest had been made under s. 30 of the Offences against the State Act which permitted his detention for the prescribed period and his interrogation during that period.
The statutory provisions
28. At this stage before going on to consider other arguments, it is appropriate to pause to consider the provisions of s. 16 of the Criminal Justice Act 2006. The section so far as material provides as follows:-
“16(1) … [A] statement relevant to the proceedings made by a witness may, with the leave of the court, be admitted in accordance with this section as evidence of any fact mentioned in it if the witness, although available for cross-examination -
…
(c) gives evidence which is materially inconsistent with it.
(2) The statement may be so admitted if -
…
(b) the court is satisfied -
(i) that direct oral evidence of the fact concerned would be admissible in the proceedings,
(ii) that it was made voluntarily, and
(iii) that it is reliable,
(3) In deciding whether the statement is reliable the court shall have regard to -
(a) whether it was given on oath or affirmation or was video recorded, or
(b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability, and shall also have regard to -
(i) any explanation by the witness for refusing to give evidence or for giving evidence which is inconsistent with the statement,
. . .
(4) The statement shall not be admitted in evidence under this section if the court is of opinion -
(a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused.”
29. In the course of submissions on behalf of the appellant, the following helpful summary of what was required for the invocation of s. 16 was provided. Matters for consideration are whether:
(i) The evidence given at trial by Mr. Ibrahim was materially inconsistent with the previous statement.
(ii) The direct oral evidence would be admissible.
(iii) That the statement sought to be introduced was voluntary.
(iv) That the statement was reliable.
(v) That either (a) it was given on oath or affirmation or contained a statutory declaration or (b) that when the statement was made, the witness understood the requirement to tell the truth.
(vi) Any explanation given by Mr. Ibrahim for departing from his previous statement.
(vii) To ask whether in all the circumstances would the admission of Mr. Ibrahim’s statement be unfair to Mr. Campion.
Previous inconsistent statement
30. The appellant protests that the prosecution are seeking to parse and indeed to pick and choose from Mr. Ibrahim’s previous utterances, and that this is not something that can be permitted to happen. Mr. Ibrahim had given a number of different and clearly inconsistent accounts to gardaí. His approach in court was inconsistent with some of what he had said earlier, but consistent with other parts. The defence say that the entirety of what Mr. Ibrahim had to say in Mayorstone garda station had to be seen as the statement for comparative purposes and, viewed in that light, what he had to say in court should not be viewed as inconsistent as it was consistent in part, and inconsistent in part, with what he had to say in the garda station.
31. There is no doubt that Mr. Ibrahim did not maintain a constant approach during his detention, and that is clearly relevant when it comes to considering several aspects of the relevant section of the statute. However, on this crucial element, where the question is a simple factual one, there can be no doubt at all that what he was saying in court clashed with what he had to say post the Peter Ryan visit while detained, and to that extent a prior inconsistent statement has been established.
Voluntariness.
32. As already indicated, consideration of this issue overlaps with the arguments that were advanced in relation to the Peter Ryan encounter. The trial judge, who presided over a lengthy voir dire, was clearly the person best positioned to determine this issue. Unlike the trial judge, this Court has not had the advantage of viewing any of the video tapes of the interviews, while the trial judge viewed them all. The Court has the memos that were recorded and a transcript of the interviews, both of which are clearly second or third best. Nonetheless what emerges from the written pages is that Mr. Ibrahim, having made his decision, was comfortable with it and was clearly and evidently very much in control of his situation. Not having had the opportunities that were available to the trial judge to hear and observe Mr. Ibrahim in court, to view the video tapes and to hear and observe the various other witnesses who gave evidence on the issue, this Court cannot, having regard to long established and deeply entrenched jurisprudence, consider substituting its own view of the facts for that of the trial judge.
33. The complaint that Mr. Ibrahim was coerced into providing information as a result of threats, inducements, cajoling, coaxing and investigatory misconduct were all matters that were considered in great detail at trial, and the conclusions of the trial judge were ones that were open to him and were fully supported by the evidence.
Reliability
34. In the case of DPP v. Michael O’Brien, [2011] 1 IR 273, where admittedly the context was very different as it involved a young child resiling from what she had said at an earlier stage about abuse to which she was subjected, Macken J. commented at para. 62 that the court of trial was required:-
“to examine the circumstances and factors surrounding the making of the statement, to ensure this is a reliable statement in the sense that it is one which can be relied upon, rather than requiring the court to be satisfied that the actual content of the statement is reliable in the sense that it is true.”
35. No case where s. 16 is invoked is likely to be straightforward. The witness is saying something different at trial from what he had said on a previous occasion. The jury is being asked to rely on and to act on what was said on the previous occasion. The jury is invited to so rely although the witness will have been established to be someone who has lied on a significant occasion, whether that was in court or in the earlier statement. It is quintessentially a matter for the jury to decide whether they can identify where the truth lies, and, if the view is that the truth is to be found in the earlier statement sought to be relied on by the prosecution, whether they can be sufficiently confident that that is the case and that they can proceed to return a verdict of guilty beyond reasonable doubt. Section 16(3) provides guidance to a court considering whether a statement is reliable by directing attention to whether it was given on oath or affirmation, or was video recorded, and if not so, whether by reason of the circumstances in which it was made, there was other sufficient evidence in support of reliability. In this case, the interviews sought to be relied on were indeed video recorded. True, the point is made that the encounter with Mr. Ryan was not videotaped, but the prosecution did not seek to rely on what was said during the course of that encounter, pursuant to section 16. There can be no doubt that Mr. Ibrahim must have understood clearly the importance of the occasion and that it was not a narrative volunteered casually in a public house, but a matter of huge importance.
The requirement to tell the truth
36. There can be no doubt either that Mr. Ibrahim was fully aware that his interlocutors wanted him to tell the truth and that there was a requirement to tell the truth from the first moment of contact with An Garda Siochána after the murder. While Mr. Ibrahim can have been in no doubt as to what was required of him, it is clear that he did not always comply in that he gave a number of accounts which were mutually inconsistent. Contrary to what seems to be submitted, it is not the case that only at interview seven, the first post Ryan encounter, did Mr. Ibrahim appreciate the requirement to tell the truth. He was aware of that requirement at all stages, but for his own reasons chose not to do so, until after he met with Peter Ryan, the brother of his deceased friend.
A risk of unfairness
37. In many ways, this is the most significant of the tests. A high bar is set for the prosecution when seeking to have the statement admitted. Section 16(4) directs that the statement shall not be admitted if there is any risk that its admission would be unfair to the accused.
38. Consideration of the risk of unfairness reintroduces issues that have already required consideration, such as the circumstances in which the statements were made, the issue of voluntariness and so on. However, at this stage, the issue of reliability in the alternative sense of that word identified in O’Brien, i.e. reliable in the sense that it is true, comes into play.
39. If a trial judge believed that he was being asked to admit in evidence an out of court statement that was substantially untrue, it is inconceivable that he could conclude that its admission would not give rise to a risk of unfairness. This is particularly so given that the witness is now not maintaining the position set out in the statement and so the scope for a telling and effective cross examination is reduced. In a situation where the witness has abandoned the field, there is no question of a cross examination showing him forced to give ground.
40. The appellant points to aspects of the forensic evidence, such as the fact that the two entry wounds were very close together, indicative of a so called “double tap”, as conflicting with Mr. Ibrahim’s garda station account which saw shots being fired from different locations and at different angles, and he says that these inconsistencies in the forensic and pathological evidence with what Mr. Ibrahim told the gardaí undermine that account. At a minimum, it is said, a doubt is raised, but more than that, that the material renders Mr. Ibrahim’s account improbable, to the point of being very improbable indeed.
Failure to have regard to explanations given by the witness
41. Mr. Ibrahim has stated by way of explanation that he would have said anything to get out of custody. The defence has seen fit to categorise this explanation as plausible. They have done that notwithstanding that certain portions of the statements about which this was said were made at a time when he was not in fact in custody at all. Mr. Ibrahim was in custody though when the statements central to the case against Mr. Campion were made. While the desire to get out of custody is the primary explanation offered, it was far from the only one. At different stages, Mr. Ibrahim explained that he was on drugs, pointed to the fact that the gardaí were suggesting that he was the murderer or involved in the murder, and explained that he provided a name in order to bring the exercise to a halt. In a letter of retraction sent via an English solicitor, the explanation offered was that he was under stress having come face to face with a very distressed Peter Ryan. What all of these explanations have in common is that the person best positioned to make an assessment in relation to them was the trial judge who had viewed the entire process and who had in particular been in a position to observe Mr. Ibrahim’s demeanour when he was providing information to the gardaí during the course of the interviews that took place after Mr. Ryan’s visit.
42. A number of arguments advanced by the appellant require to be addressed. Ground 1(viii) of the notice of appeal states that the efficacy of the appellant’s right to cross examine as a safeguard of fairness was entirely blunted when the witness was saying that what was being relied on were all lies. It has to be acknowledged as, indeed has already been observed, that the capacity to conduct an effective cross-examination in relation to the statements was reduced when the witness was resiling from them. It is not, however, the case that the effect of the admission of the statement was to impose a burden on the appellant to prove his innocence. It was for the jury to decide what to make of the statement. It was far from certain that they would have felt they could rely on it. Had they doubts or concerns about the circumstances in which the statement came to be made, or concerns that it was not voluntary to the extent that its contents had been procured by pressure and coercion such that its contents could not be relied on, there is no doubt that the jury would have declined to act on it. If the jury were in any reasonable doubt as to whether Mr. Ibrahim was speaking the truth in the interviews put in evidence, then an acquittal must have resulted. However, the verdict actually returned is consistent only with the fact that the jury were in no doubt that he was speaking the truth and that what he was saying could be relied on. Just as the trial judge was in the best position when deciding the facts on the voir dire, at this later stage of the trial this was a matter for the jury. They, having had an opportunity to view Mr. Ibrahim in the courtroom as well as in interview on video tape, were well positioned to do so.
43. The defence places particular reliance on a decision of the European Court of Human Rights in Al-Khawaja and Tahery -v- United Kingdom (2009) 49 EHRR 1 (20th January, 2009). Reliance is placed on this decision as establishing that the rights of an accused arising from Article 6(3)(d) are freestanding rights independent of the general right to a fair trial under Article 6. Attention is drawn in particular to paragraph 36 of the judgment which states:-
“Whatever the reason for the defendant’s inability to examine a witness, whether absence, anonymity or both, the starting point for the Court’s assessment of whether there is a breach of Article 6(1) and (3)(d) is set out in Luca, (2003) 36 EHRR 46, at [40]:
‘If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6’.”
44. However, the decision of January, 2009 relied upon by the defence has to be seen in the context of the fact that the decision was appealed to the Grand Chamber which, in a judgment delivered on the 15th December, 2011, (2011) 54 E.H.R.R. 23, moved the emphasis away from a consideration as to whether the challenged evidence was the sole and exclusive evidence to one which focused on the overall fairness of the trial. Focusing on the overall fairness of the trial of Mr. Campion, it is the case that his lawyers were given an opportunity to cross examine both in the course of the section 16 application and before the jury during the course of the trial proper, and availed of those opportunities on both occasions at very considerable length. Indeed, it must be said that they did so to some considerable effect, in that it was clearly established that Mr. Ibrahim was not a truthful person, but one prepared to lie as and when it suited his purposes to do so. The defence categorisation of him as an incorrigible liar was not an unfair one. However, the issue was not whether Mr. Ibrahim was in general terms a truthful person but whether he was being truthful when he told the gardaí during the course of several interviews that Mr. Campion was the passenger who had shot and murdered Mr. Frank Ryan. The majority of the jury were satisfied to the standard of proof of beyond reasonable doubt that, on these crucial occasions, he was speaking the truth.
Ground 1(ix) the earlier statements were hearsay which the defence was not given a proper or adequate opportunity to challenge.
45. The argument is made that, regardless of whether or not such statements can, in principle, be admitted in some cases, it was unfair to admit them in the present case. The phrase “whether or not in principle” is a telling one. It appears to leave open the view that there are no circumstances where statements can be admitted. This amounts to setting at nought an act of the Oireachtas. Any such suggestion would be completely unacceptable. There is no doubt that s. 16 represents a fundamental departure from the traditional approach of the common law which required evidence to be given on oath in open court, and of course that remains the norm. However, the Oireachtas has decided that in certain clearly defined circumstances there can be a departure from the norm. The view of the Oireachtas as to the necessity for such a radical change must be respected.
46. It may be noted that this change in Irish law emanated from the legislature. The changes would seem to be modelled on developments in Canada. Significantly, the changes in Canada were not brought about by Parliament but were judge led, particularly in the decision of the Canadian Supreme Court in R. v. B. [1993] 1 S.C.R. 740, to modify to a very significant extent the traditional common law position. That was a very dramatic development indeed. However, it must be said that if witnesses who have provided information resile from what they have said, whether because of direct intimidation or fear of what the future may hold if they carry through on their statements, and this leads to a trial collapsing or leads to prosecutions not being brought because of fear that the statements are likely to be withdrawn, then this has a very serious impact on the integrity of the system of justice and public confidence in it.
The failure of the trial judge to reconsider his decision to admit the statements of Mr. Ibrahim into evidence and/or to grant a direction
47. Following the close of the prosecution case, the trial judge was invited to reconsider his decision to admit the evidence and/or to grant a direction. There can be no doubt that the trial judge had the jurisdiction to reconsider his earlier decision, and indeed he expressly acknowledged that that was so. The arguments advanced in support of the proposition that the trial judge should have revisited and then reversed his earlier decision were really based on two elements. First, it was said that the true nature of Mr. Ibrahim’s character had by that stage been exposed, and secondly it was said that other evidence called by the prosecution, and in particular pathology, forensic and ballistics evidence, had gone a very considerable distance to undermine and discredit Mr. Ibrahim.
48. While it was for the trial judge to decide whether to reverse his earlier decision, it must be said that it would have been surprising had he chosen to do so. The nature of Mr. Ibrahim’s character was clearly apparent from the very early stages of the s. 16 application, if not before that. However, once more it must be stressed that the issue was not whether Mr. Ibrahim was a person of good character or of bad character, or whether he had a truthful or untruthful disposition, but whether the prosecution could establish that he had told the truth on the particular occasions when he named Mr. Campion. As to the suggestion that other aspects of the prosecution case had undermined Mr. Ibrahim’s account, all of these issues were probed very ably and with great diligence. They were, however, classically points to be made to a jury. Indeed, subsequently they were made to the jury with considerable force. However, to suggest that they could ever have formed a basis for withdrawing the case from the jury is to disregard the fact that the Constitution mandates a trial by jury for serious offences. As far as the question of reconsidering the position is concerned, far from the situation being more clear cut from the defence perspective than when the trial judge first ruled on the matter, by the time the prosecution closed its case there had been evidence from four members of the gardaí that when arrested, and while being brought to the station, Mr. Campion made certain remarks which might be seen as providing a considerable degree of support for the prosecution case.
The trial judge’s charge
49. During the course of the trial and particularly when ruling at the conclusion of the voir dire, the trial judge had referred to the need for extreme caution in relation to the evidence of Mr. Ibrahim and how the jury would need to be directed in that regard. However, the defence say that having correctly identified the need for extreme care and for a particular form of direction to the jury that he failed to deliver on this. The trial judge dealt with the significance of the statements that had been put in evidence pursuant to s. 16 in these terms:-
“As counsel, I think, have conveyed to you already there is one unusual feature of this case. In the ordinary case, if you act on the evidence of a witness in the witness box giving evidence on oath and being cross examined to the effect that either he or she saw the crime, or alternatively can prove some circumstances from which the commission of the crime can be ever inferred. You also take account of such admissible documents as are sent into you in the jury room. This case is wholly different from that normal scenario because the essential evidence which the prosecution relies upon is something which was said by a witness on another occasion and not on oath, and not only that but is something which is denied by him on oath in the present proceedings. This situation comes about by reason of s. 16 of the Criminal Justice Act 2006, which permits you to act on a statement made on another occasion, the truth of which is now denied in certain circumstances. The first condition for this is that leave must be given by the trial judge. I have given leave for what Mr. Ibrahim said on the occasion after the visit to him to go to you as evidence and to go to you so that you can act on it on the basis that the allegation of fact contained within it are true, the allegation of fact being that Gary Campion shot the victim in this case. The fact that I have allowed it go to you for consideration by no means, means that you must accept it. That is entirely a matter for you whether you accept the truth of it or give it any weight is a matter entirely for you. To act on it, you must find that it is reliable. Now the prosecution say that in all the circumstances of this case you would bear in mind that Erol Ibrahim was the best friend of Frank Ryan. You bear in mind that he was present when Frank Ryan was assassinated. You bear in mind that the evidence - it is a matter for you what evidence you accept, entirely a matter for you - but the evidence is to the effect that Peter Ryan asked to see him while he was in custody to convey that it was the wish of the family that he tell the truth and that if he did he would not be held to be a rat in the local community and that on foot of this particular situation, he said it was Gary Campion who pulled the trigger. The prosecution directs your attention to all these circumstances and say that in these circumstances you should find that evidence reliable. The defence say that Erol Ibrahim, as you have seen yourself, is a serial liar and admits being a serial liar. You might think that he is such a liar that he does not know any more when he is telling the truth and when he is not telling the truth. The defence would say that the forensic evidence in the case contra indicates Mr. Ibrahim’s testimony. They also say that if it set up some alternative scenarios, and they say that they do not have to prove these alternative scenarios to succeed: they merely have to raise a doubt in your mind. The prosecution say that you should accept the passage of Mr. Ibrahim’s evidence immediately after the visit, to the effect that Gary Campion pulled the trigger as reliable: it should be accepted by you, and the matter which I will coming to the very conclusion of my remarks to you is some evidence which the prosecution say amounts to an admission by Gary Campion and is therefore supportive of the evidence which they are putting forward, and to that the defence replies that the three senior detectives in the case are perjuring liars and that this is a verbal which they made up. As I say, I will come to that at the conclusion of my remarks to you, and it is obviously a very important matter for you to address.”
50. It will be apparent that the trial judge made clear that the case was a departure from the norm - one that was “wholly different from the normal scenario” - and that the prosecution were seeking to rely on something said on an out of court occasion, a statement that had not been sworn and which had been denied by the individual concerned on oath in court. He stressed to the jury that the fact that a statement was being made available to them for consideration did not mean, at all, that the jury had to accept it and act on it. Whether to give any weight to the statements was a matter of the jury. He then referred to matters relied on by both the prosecution and the defence in support of their respective contentions. Very significantly when putting the defence arguments to the jury, the trial judge provided a significant degree of judicial endorsement. So, when referring to the defence contention that Mr. Ibrahim was a serial liar, he added “as you have seen for yourself” and then went on to add “you might think he is such a liar that he does not know any more when he is telling the truth and when he is not”.
51. What happened at the requisition stage was of some significance. Defence counsel acknowledged that the trial judge had correctly told the jury that weight was a matter for them, but then asked the judge “to consider taking it slightly further” and to say to the jury that the statement should be given less weight because it was not the subject of cross examination. The trial judge’s response to this was to say to prosecution counsel: “I am going to give Mr. O’Rourke [senior counsel for the defence] what he wants and there will be no complaints afterwards”. The trial judge then inquired of defence counsel as to what was being sought. The trial judge was requested to refer to the fact that there had been no cross examination and that Mr. Ibrahim may have had a motive for lying. The trial judge did as he was asked to do. Notwithstanding the trial judge’s express statement that his approach was to give the defence whatever it was that it was seeking, there were no further requisitions.
52. The Court of Criminal Appeal in the case of DPP v. Jason Murphy [2013] IECCA 1, where judgment was delivered long after Carney J. had charged the jury in the present case, addressed the question of how a jury in a case where a statement had been admitted pursuant to s. 16 should be charged. In the Court’s view, there can be no quarrel with the general approach identified by the Court of Criminal Appeal. However, it should be borne in mind that the Court of Criminal Appeal was offering assistance rather than being prescriptive. Indeed, there are points of detail where this Court might take a somewhat different approach to the Court of Criminal Appeal. This Court is not convinced that most juries are likely to be assisted by an exposition of the history of the hearsay rule. The position though is that the trial judge in this case, although called on to charge the jury long before the Murphy decision was given, in fact succeeded in addressing all the major issues identified by the later decision as requiring to be addressed.
The failure to give reasons for the decision
53. Having ruled on the issue, the trial judge indicated that in deference to the arguments that he had heard, this was not a matter that could be adequately dealt with by way of an ex tempore ruling and that he would provide his reasons at a later stage. However, no further reasons were in fact given at any later stage. The issue was canvassed at the sentence hearing on the 8th July, 2009, when the judge commented that with the passage of time, he had concluded that he had sufficiently and fully explained his ruling. In these circumstances it is important to consider what the judge had actually said:
“I am admitting the statements. Now, I couldn’t possibly ex tempore do justice to the extensive arguments that have been advanced by both sides in this case. Dealing with practical realities we are effectively into the vacation now and on the first day of term, effectively, the jury is going to be here to resume the case. I will have to reserve my reasons for admitting the evidence and I cannot say when I will be in a position to do so. But the case resumes on the evidence before the jury on the 21st April. I think you have sufficiently gathered the substance of what I feel about the matter. This has been approached over many, many, many days now as if we were conducting a voir dire in the traditional fashion in relation to the admissibility of evidence against the accused person. We are not in that situation at all. We are dealing with a new section being explored now for the first time in the High Court, the Circuit Court got there ahead of us in one case, but being explored for the first time in the High Court, the section being a direct legislative response to a particular case heard in this Court in which I was the trial judge. I am satisfied that all the ingredients of s. 16 have been satisfied. I suppose the main questions are voluntariness and reliability and I am satisfied first of all that the accused man was very well able to take care of himself in interrogation. That is agreed on all sides. He was able to dictate the terms of it. He was able to assert his right to silence. He was able at other times to bend himself over in the chair with his back to the camera while at the same time making gestures with his fingers which possibly were meant to be seen by the trial judge and not by his interrogators, I don’t know. He was capable at another stage of reverting into humorous exchanges with his interrogators. He was capable of negotiating his position to me when I was disposed to have him looked after on these premises rather than take the risk of his not coming back to us.
The substance of what happened is that moral pressure was put on him which emanated from the Ryan family and Peter Ryan put it to him to do the right thing and disclose what he knew and gave him the assurance, which I believe to be of critical importance in the culture of a certain part of Limerick, that he would not be held to a be a rat if he behaved in that fashion. This emanated not from the authorities, but emanated from the Ryan family. They were not persons in authority. There was no oppression within the meaning of the case law. There were no inducements or threats within the meaning of the case law. What I have found or what I am going to find is a moral pressure emanating from the Ryan family conveyed through Peter Ryan. Ms. Donnelly (senior counsel for the prosecution) appears to be a bit unhappy about that and wants to corral me into some sort of formula relating to internalised pressure. I am viewing this matter as a single juror at the moment and the twelve jurors won’t know the basis on which I have approached matters, they won’t know what I have approached at all for that matter. They are not bound by any conclusions I have come to and they will have to be very strongly warned in relation to the exceptional nature of this evidence that they are being given evidence on something which was unsworn and so forth.
I am giving my view now as a single juror and I am not going to be corralled by Ms Donnelly into any formula, and if her failure to get me to corral myself leads to problems for her in another case, well that is not my affair.”
54. As has been said on many occasions, there is no requirement for a discursive judgment. What is required is that the parties will know why they have won or lost, and an appellate or review court will know on what basis the decision has been made. Judged by these criteria, the remarks made at the time of the ruling were indeed sufficient.
55. In summary then, none of the arguments relating to the out of court statement of Mr. Ibrahim succeed. There are, however, a number of free standing arguments that require to be considered.
The failure to discharge the jury following the publication of newspaper reports
56. The sequence of events with which we are concerned is that the trial opened on the 18th March, 2009, the jury were sent away on the following day, the second day of the trial, so that the issue in relation to the statements of Mr. Ibrahim could be dealt with in their absence. The trial was then interrupted for the Easter vacation on the 2nd day of April and resumed in the presence of the jury on the 21st April, 2009. On the 10th April, 2009, an article in relation to a Limerick gangland killing appeared in the Irish Independent. The article would seem to have been prompted by the murder of Ray Collins. The article began on the front page and was continued inside on page sixteen. Photographs of victims were published, including one of Brian Fitzgerald. The below photo caption stated that Mr. Fitzgerald, a 34 year old nightclub bouncer, was shot dead by James Martin Cahill and Gary Campion in November, 2002. It did not, however, state as was in fact the situation that Mr. Campion had been convicted of that murder.
57. The publication of this article with its reference to Mr. Campion’s involvement in the shooting of Mr. Fitzgerald was undoubtedly unfortunate. This is particularly so, as jurors, or some of them at least, could reasonably have been expected to have a heightened interest in and awareness of media coverage of Limerick gangland murders, having been sworn as jurors in just such a case. Be that as it may, the publication of the article led to the predictable application for a discharge of the jury. In refusing the application, the trial judge referred to an internal fade factor within the trial. He commented as follows:-
“Mr. O’Rourke, (counsel for the defence) has made a most cogent argument for the discharge of this jury by reason of the material published in the Irish Independent and his application is resisted by the Director of Public Prosecutions. The Director, in the stance he is taking, must bear whatever risk there is to any conviction which he might obtain at the end of this case. The events in Limerick are of great concern to the entire nation and properly must be of great concern to the entire nation. They must be reported and extensively reported and the press would be failing in their duty if they didn’t give a very high level of coverage to the events that are peculiar to Limerick. In carrying out that duty, they have a further duty to ensure that none of their coverage is going to interfere with the integrity of an imminent or forthcoming trial and they, of course, must know what is in the pipeline.
So far as in the present case is concerned, I accept Ms. Donnelly’s submissions that there was an incidental reference and coverage to Gary Campion in which there was no linking to this trial. It was probably wrong and unlawful and the newspaper may be liable to prosecution in respect of it by the Director of Public Prosecutions. I am not going to take any decision in relation to that. But I accept that it was incidental and not directly linked. I also accept that there may have been an internal fade factor within the dynamics of this trial. It seems to me and this is a personal opinion that the matter which is most likely to prejudice or impinge on the jury in some fashion is the frequency and duration for which they are being sent out and away from this Court. That, however, is a purely personal observation. The jury at the end of the day will have to have the most extensive warnings. They are gong to have to have the most extensive warnings in relation to the nature of the evidence which they are being allowed to hear under the 2006 Act, which is wholly exceptional evidence and they will have warnings in relation to any coverage they might have come across and their obligation to try the case strictly and only in accordance with the evidence and the trial judge’s legal directions. The Constitution proposes (sic) confidence in juries: their services cannot be dispensed with even with the consent of all parties. The appellate courts substantially have confidence in juries and I have confidence in juries and I am satisfied that they will have regard to the warnings which they must be given at the conclusion of this case. The trial may proceed.”
58. However, on behalf of the appellant it is said that despite the reference by the trial judge to the need for the most extensive warnings, there were in fact none forthcoming. The jury were however warned that, in considering their verdict, they were confined to what they had heard in the courtroom and they were not entitled to wander outside the evidence. The jury were told that they could not speculate and could not apply any knowledge of their own to the facts of the case. There were no requisitions on this point and it appears likely that the trial judge felt that it was best to avoid specific mentions of media reports. The absence of a requisition would suggest that the defence did not dissent.
59. In Rattigan v. DPP [2008] 4 IR 639, Geoghegan J. commented at para. 66 as follows:-
“In arriving at my final conclusion on the proceedings based on the additional evidence, I am of opinion that I must consider as of this date the dangers of an unfair trial and indeed accept that some further time will elapse before a trial will commence. It would seem to me that as a matter of probability, some potential jurors will not have ever taken in the name of the applicant in the first instance but there is, of course, a danger that when the facts of the case are opened, they may make the association, even if they did not remember the name. There are some who will neither remember the name nor make the association. The newspaper accounts exhibited had been so vivid that there must be a possibility at least that some association will be remembered by one or more jurors and, of course, there is the further possibility, if not likelihood, that one juror in the know may inform his or her colleagues. I am unimpressed by arguments that, in some of the accounts, the applicant is merely viewed as a gang leader or in some way connected with the crime but not the perpetrator of the crime. Nevertheless, in a very serious murder trial, such as this, which is likely to last for quite some time in which therefore the jurors will have become fully attuned to the seriousness of their own position and the seriousness of the functions which they have to perform and above all the long period which will have elapsed from the time of the publication of the articles, even the later ones, I do not consider that it would be either appropriate or necessary for this court to grant the injunction sought.”
60. The difference in this case is that the article appeared after a jury had been selected and after the trial had commenced. As a matter of probability, one or more jurors will have seen the article. The Irish Independent has a very large circulation and jurors are likely to have been interested in stories about Limerick gangland. Nonetheless, the point made by Geoghegan J., that over the course of a long trial, jurors will have become very conscious of their quasi-judicial role and the obligation on them to deliver a verdict based on what they heard in court and on nothing else, is a compelling one. Courts can and should trust jurors to be true to their oath. This Court is not persuaded that the publication of a single article required the discharge of the jury and, accordingly, the ground fails. In taking the view that it has, the Court takes account of the fact that the earlier trial arising from the murder of Brian Fitzgerald was a very lengthy one and very high profile one. The possibility, that even absent the Irish Independent article one or more jurors might have made the connection between the two trials cannot be excluded. However, the observations made by Geoghegan J. that jurors in the course of a long trial would become fully attuned to the seriousness of their own position and the seriousness of the functions that they have to perform continues to apply.
The Damache point
61. By a notice of motion dated the 28th February, 2015, the appellant sought leave to introduce and argue an additional ground of appeal arising from the decision in Damache v. DPP [2012] 2 I.R. 266. The issue is raised in a situation where, on the 23rd September, 2006, Detective Inspector Mulcahy, one of the investigators applied to Detective Superintendent Quilter for a warrant under s. 29 of the Offences Against the State Act 1939. The warrant authorised the search of a premises at 49 Carrigroe, Mitchelstown, Co. Cork. At 4.35 am on the 23rd September, Detective Inspector Mulcahy, Detective Sergeant O’Callaghan, Detective Garda Cleary and other members of the gardaí as well as Detective Superintendent Quilter went to the address in Mitchelstown.
62. At trial there was no issue in relation to the validity of the warrant issued by Detective Superintendent Quilter, and the point is now sought to be raised for the first time. That is by any standard an unsatisfactory situation. While the issue was not explored in any detail because no point had been taken in relation the validity of the warrant, the inescapable conclusion from the evidence is that the gardaí in Mitchelstown went there with a dual purpose, namely to arrest Gary Campion and to search the premises on which he was located, and the Court would not have been disposed to uphold this ground of appeal at any stage. However, the matter has been put entirely beyond doubt by the decision of the Supreme Court in the case of DPP v. J.C. [2015] IESC 31, judgment of the 15th April, 2015. Accordingly, this ground of appeal fails.
The role of members of An Garda Siochána as jury minders.
63. The point is made that this is a case where the veracity, integrity and truthfulness of the investigating members of An Garda Siochána were being impugned and that it was not satisfactory that members of the same force would then be left in charge of the jury. However, this ground of appeal is entirely without merit. If there was any objection to the procedures that were in place for the minding and keeping of the jury, then the time to raise that was at trial. The procedures followed were ones that had been in place over many years, and if there was a view that the procedures caused difficulty either generally or in the context of this particular trial then it was incumbent on those who held that view to raise the issue and to seek to have alternative arrangements put in place. The Court has no hesitation rejecting this argument.
Conclusion
64. The Court has considered all of the arguments that have been advanced on behalf of the appellant in both the written submissions and the supplemental written submissions and in oral argument. The Court rejects all of them.
65. This case was handled with particular skill and indeed firmness by the trial judge. The case was properly left to a jury and the conclusion arrived at by the jury was one that was entirely open, and this Court affirms the conviction.
