THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J. Appeal No.: 261/2013
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on 14th day of June 2016 by Mr. Justice Mahon
1. This is the appellant’s appeal against conviction on 3rd December 2013 at the Central Criminal Court, having been found guilty by a jury of one count of murder, contrary to Common Law and as provided for by s. 4 of the Criminal Justice Act 1964. He received the mandatory life sentence on the same date.
Background facts
2. In the early hours of the morning of 18th January 2012, as Mr. Gerard McMahon was approaching his cousin’s house at 85, Lenihan Avenue in Limerick, he was violently assaulted, in the course of which he was stabbed approximately sixteen times in the back of his head, the left side of his head, and the back of his trunk. He bled profusely. Medical help was summoned and it arrived promptly. He was taken to hospital but died shortly after admission from his injuries.
3. Three individuals were charged in relation to the killing of Mr. McMahon. Two were charged with murder, namely the appellant and his uncle, Mr. Paul Colbert. A third man, Mr. Ian Flanagan, the appellant’s brother, was tried and convicted on two charges of assisting an offender contrary to s. 7(2) of the Criminal Law Act 1997, in relation to the removal of a CCTV recording device from 105, Lenihan Avenue, Limerick with intent to impede the apprehension or prosecution of his brother and his uncle.
4. The appellant was arraigned on 4th November 2013 and entered a plea of not guilty to the charge of murder. The trial commenced on 5th November 2013 and concluded on 3rd December 2013. There were unanimous jury verdicts returned in relation to the murder charges against the appellant and Mr. Colbert, and in respect of the charge against Mr. Ian Flanagan.
5. Prior to the murder, the deceased and the appellant were known to each other. The deceased had been in a relationship with a Ms. Vicky Naughton. That relationship broke up and Ms. Naughton then entered into a relationship with the appellant. In due course that relationship came to an end, and the appellant believed that Ms. Naughton had resumed her relationship with the deceased. On the morning of the murder, sometime after 12.30 a.m., and after the deceased had been stabbed, Ms. Naughton received a text message from the appellant stating “ring or text Ger now and ask him either how is he or where is he”.
6. At approximately 2 a.m. on the morning of the murder two gardaí called to Mr. Colbert’s house at 105, Lenihan Avenue, Limerick, and were permitted entry by Mr. Colbert. Having entered the house they were invited by Mr. Colbert to go upstairs where the appellant was in bed in one bedroom, while Mr. Ian Flanagan and his girlfriend were in bed in another bedroom. The gardaí entered into both bedrooms and there interviewed the appellant, his brother, Mr. Ian Flanagan, and his girlfriend. They maintained that they did so with the permission of the interviewees. The gardaí also stated that they were granted permission by the appellant to take away items of his clothing which were on the bedroom floor and that they were, in effect, offered the clothing. In his discussion with one of the gardaí, Det. Gda. Murphy, the appellant denied that he had been on Lenihan Avenue at around 12.30 a.m. on that morning, or indeed that he had met the deceased at any time on the previous evening, or indeed at all over the previous number of months.
The CCTV footage
7. Important evidence was provided in the course of the trial by CCTV footage.
8. CCTV footage from a camera located over the front door of 105, Lenihan Avenue revealed that at 12.03 a.m. on the morning of the murder, Mr. Colbert returned to 105, Lenihan Avenue. At 12.15 a.m., two persons, believed to be the appellant and Mr. Ian Flanagan, left 105, Lenihan Avenue and walked in the direction of Hyde Road, passing 85, Lenihan Avenue (where the assault on the deceased took place). At 12.20 a.m., the deceased is seen on Lenihan Avenue walking towards 85, Lenihan Avenue. At 12.24 a.m., two persons, believed to be the appellant and Mr. Ian Flanagan are seen running towards 105, Lenihan Avenue from the direction of Hyde Road. At 12.30 a.m., two persons (believed to be the appellant and Mr. Colbert) are seen leaving 105, Lenihan Avenue and walking in the direction of 85, Lenihan Avenue. They are seen returning to 105, Lenihan Avenue at approximately 12.31 a.m.
9. It was the prosecution case that the appellant and Paul Colbert assaulted the deceased on the steps to the front door of 85, Lenihan Avenue shortly after they were seen leaving 105, Lenihan Avenue and returning to that address within the space of a couple of minutes.
10. Further CCTV footage from a camera at Parkway Shopping Centre showed the appellant, his brother, Mr. Ian Flanagan and three teenage girls in the shopping centre at approximately 6 p.m. on the afternoon of 18th January 2012. Two of these young women gave evidence that they heard the appellant admit to the third young woman that he had killed the deceased. In this conversation also, the appellant is said to have implicated his brother, Ian Flanagan, as having been involved in the attack.
The appellant’s arrest and detention
11. The appellant was arrested on 25th January 2012 (approximately one week after the murder), on suspicion of having murdered the deceased. He was interviewed on nine occasions at Roxboro Road garda station in Limerick. In the course of his detention, the appellant consulted with his solicitor on six occasions, in the period 25th January 2012 to 27th January 2012.
12. In the course of the first seven interviews, nothing of import was stated by the appellant, with him frequently answering “no comment” in relation to questions put to him. The appellant is heard making admissions in relation to the attack on the deceased and other related issues in the eighth and ninth interview conducted on the evening of 26th January 2012.
The grounds of appeal
13. Prior to the commencement of the hearing of this appeal, in the appellant’s notice of appeal and in written submissions made on his behalf, nine grounds of appeal were detailed. Four of these related to the circumstances in which the gardaí entered 105 Lenihan Avenue, and, having so entered, proceeded to enter into and interview the appellant in an upstairs bedroom where he was sleeping. Four grounds of appeal related to the interviews by the gardaí of the appellant following his arrest. The ninth ground of appeal is a general contention that the trial of the appellant was unsatisfactory.
14. At the outset of the appeal hearing, Mr. Phelan S.C. for the appellant indicated that only the first four grounds of appeal were being proceeded with. These are:-
(i) The learned trial judge erred in law and in fact in allowing into evidence in the prosecution of the case against the appellant any information which is acquired by the gardaí on foot of their gaining unlawful access to 105, Lenihan Avenue, Limerick on 18th January 2012.
(ii) The learned trial judge erred in law and in fact in disregarding the totality of the evidence that the co-accused, Paul Colbert, was inebriated and thus incapable of giving informed permission to enter the premises at 105, Lenihan Avenue, Limerick on 18th January 2012.
(iii) The learned trial judge erred in law and in fact in allowing into evidence any information or items of evidence which were recovered by the gardaí as the direct result of the breach of the constitutional rights of the appellant in gaining assess to the house and gaining assess to the appellant’s room in the house.
(iv) The learned trial judge erred in law and in fact in admitting the evidence of the gardaí’s visit to 105, Lenihan Avenue, Limerick and the evidence of items which were seized by the gardaí whilst they were clearly investigating the earlier unlawful killing of the deceased. The gardaí did not have a search warrant, and having unlawfully gained assess to 105, Lenihan Avenue and subsequently to the appellant’s private bathroom, did not inform the appellant of the reason for their visit and did not give the appellant a verbal caution.
15. A voir dire took place on day three of the trial at which, inter alia, the admissibility of the evidence gathered or recovered during the search of 105, Lenihan Avenue, Limerick on the 18th of January 2012, including the fruits of interviews with the occupants of the house including the appellant, was unsuccessfully challenged. In the course of that voir dire sworn evidence was heard from the two gardaí who entered no. 105, namely Det. Gda. Murphy and Sgt. Burns, who having done so, interviewed the occupants of the house, including the appellant.
16. The appellant’s grounds of appeal were further particularised in the appellant’s written submissions. It is contended that the learned trial judge erred in law and in fact in disregarding the totality of the evidence that the co-accused, Mr. Paul Colbert, was severely inebriated and thus incapable of giving the gardaí informed permission to enter the house at 105, Lenihan Avenue on 18th January 2012 having regard to the following:-
(i) The evidence of Ms. Jessica Cosgrove that Mr. Paul Colbert was an alcoholic who drinks all day, most days.
(ii) The evidence of Gda. Michael Murphy under cross examination that Mr. Colbert was well known to him to have a drink problem.
(iii) The fact that gardaí in Limerick had many dealings with Mr. Colbert and knew him well.
(iv) That on arrival at 105, Lenihan Avenue at on 18th January 2012 the gardaí observed Mr. Colbert asleep on the sofa.
(v) That the gardaí failed to explain to Mr. Colbert the reasons for their visit to his house.
(vi) That the gardaí totally disregarded obvious indications that Mr. Colbert was under the influence of alcohol.
(vii) That the CCTV footage played to the jury gave an obviously indication that Mr. Colbert was indeed under the influence of alcohol.
(viii) That the gardaí, in further disregard of the appellant’s constitutional rights, failed to seek permission from the appellant to enter his private bedroom.
17. It is further contended that the learned trial judge erred in law and in fact in allowing into evidence any information relating to items of evidence which were recovered by the gardai as a direct result of the breach of his constitutional rights in:-
18. It is further contended by the appellant that the learned trial judge erred in law and in fact in admitting evidence relating to the items seized by the gardai on the occasion of their visit to 105, Lenihan Avenue on the basis that they did not have a search warrant, and that they had unlawfully gained access to both the house and the appellant’s private room within the house. It is also contended that the statements taken from the appellant are inadmissible because he was not given a verbal caution on the occasion when Det. Gda. Murphy entered his room and proceeded to interview him.
The entry by the gardai into 105, Lenihan Avenue
19. The gardai were extensively questioned and cross questioned on Day 3 of the trial in relation to the circumstances in which they entered 105, Lenihan Avenue at about 2 a.m. on the morning of 8th January 2012. Both Det. Gda. Murphy and Sgt. Burns, the gardai involved, gave broadly similar evidence. They described how, in the course of their investigation of the deceased’s death some ninety minutes earlier they arrived at the front door of 105, Lenihan Avenue.
20. Det. Gda. Murphy’s stated reason for visiting 105, Lenihan Avenue was stated in the following terms:-
21. He also said:
“A. Well, to be quite honest with you, I felt that it was - I knew that it’s Paul Colbert’s house and I did’nt - actually I did’nt realise that Sean Flanagan and Ian were staying there until that night.”
22. Sgt. Burns denied that he was aware that the appellant was residing in the house before visiting the house. He also stated:-
23. Both garda witnesses described that on arrival at 105, Lenihan Avenue they got no response to knocking on the door. When they knocked on the window of the house having seen a man lying on a couch inside, that man opened the door to them, and they recognised him to be Mr. Colbert. They said that Mr. Colbert invited them into the house.
24. Det. Gda. Murphy was quite adamant that Mr. Colbert freely invited the two gardai into his house. He rejected the suggestion put to him very forcefully on behalf of the appellant that Mr. Colbert was so intoxicated as to have been incapable of freely giving his permission for the gardai to enter the house. Det. Sgt. Murphy acknowledged that he was aware that Mr. Colbert was a heavy drinker and he rejected the suggestion put to him that he was drunk out of his mind on that particular night. Sgt. Burns also stated that Mr. Colbert had invited himself and Det. Gda. Murphy into the house and that Mr. Colbert did not appear to him to be intoxicated.
25. The gardai stated in evidence that, having been invited into Mr. Colbert’s house, they were invited to go upstairs by him, he having informed them as to the fact that the appellant, and his brother, Ian Flanagan and his girlfriend were in the bedrooms. The gardai proceeded to enter the bedrooms in which these people were in bed. They did not seek express permission from the occupants of the bedrooms before entering, because, as, (in the case of the appellant), Det. Gda. Murphy stated that he did not feel it necessary to do so. Neither did he believe it necessary to advise the appellant as to any right he might have not to allow him to enter the bedroom. Det. Gda. Murphy gave evidence as to his discussion in the bedroom with the appellant, which he described as friendly and frank. Both were known to each other. In the course of that discussion the appellant denied having seen or met the deceased either in the preceding hours, or months. Det. Gda. Murphy said that he advised the appellant that he was investigating a serious matter that had occurred further down the street. He did not caution him, and saw no reason to do so. In relation to the clothing which Det. Gda. Murphy took from the room for later forensic examination he maintained that the appellant offered them to him. He said he did not at that time regard the appellant as a suspect.
26. Det. Gda. Murphy rejected the suggestion put to him by counsel for the appellant that he had breached the appellant’s constitutional rights, and particularly Article 40.5 relating to the inviolability of a person’s home, or that the gardaí ought to have obtained a search warrant before entering the house, or that he ought to have cautioned the appellant before talking to him in the bedroom.
27. The learned trial judge ruled in relation to the application made on behalf of the appellant, and also the related application made on behalf of Mr. Ian Flanagan, as follows:-
“The court has considered the submissions in light of the evidence and judgments handed into court. The court holds that on the evidence before it, Paul Colbert gave permission to the gardai to enter his home and gave permission to the gardai to enter the bedrooms upstairs. Accordingly, the entry both to the house and the bedrooms were lawful. While the court finds that Sean Flanagan was a suspect at the time the gardai entered the premises, there was at that time, in the light of the O’Reilly judgment, no onus on the gardai to caution him, either was there was an onus on the gardai to caution Ian Flanagan. The court also holds that the evidence discloses no breach of fair procedure and accordingly the court refuses the application made on behalf of Sean Flanagan and Ian Flanagan.”
28. The court was referred to the case of The People (At the suit of the Director of Public Prosecutions) v. David Lynch [2009] 1 I.R. 543. In that case, the gardai suspected that there was stolen property to be found at a flat which lead them to search that place. The trial judge held that the warrant used to effect the search was invalid. Notwithstanding the invalidity of the warrant the evidence of what was found was admitted by the trial judge on the grounds that the accused was a mere squatter or trespasser in the flat and therefore he held that it was not his dwelling within the meaning of Article 40.5 of the Constitution. On appeal, the Court of Criminal Appeal took a different view. Fennelly J., giving the judgment of the court noted, as a matter of significance, and on the facts of the case that the gardaí had the address of the flat on their records as one of a number of addresses for the accused. The gardai believed that the accused was living at that address and that they would find stolen property there for that reason. The court proceeded to conclude that the flat was indeed the dwelling of the accused, and that there was an infringement of the inviolability of the dwelling within the meaning of Art. 40.5 of the Constitution. The evidence obtained was therefore excluded. In the course of the judgment, Fennelly J. stated:-
“…The court is satisfied that the question of whether a place is the “dwelling” of a person for the purpose of this provision, at least, in the context of the criminal law, is one of fact, a view re-inforced by the Irish language version. It is at least quite obvious that the constitutional protection would extend to a wide variety of people with dubious legal titles such as an overholding tenant, the widow of a deceased legal owner, or a person in bona fide possession on foot of an invalid title.”
29. In relation to the failure of the gardai to caution the appellant having entered his bedroom at 105, Lenihan Avenue, the court was referred to the case of The People at the suit of the Director of Public Prosecutions v. Joseph O’Reilly [2009] IECCA 18, and the judgment of that court delivered by Murray C.J.. The case concerned the refusal of the trial judge to exclude from evidence a witness statement made on 6th October 2004 in circumstances where the appellant was a suspect at that time and no caution was administered prior to him being questioned. This, it was maintained, was a violation of the appellant’s right to basic fairness of procedures. This was one of a number of grounds of appeal. In the course of the judgment, reference was made to what constitutes a garda “suspect”. The court felt it was inappropriate for it, in the circumstances of that appeal, to go behind the finding of the learned trial judge that the appellant was indeed a garda suspect. Reference was made to the Judges Rules, and particularly those relevant to this issue, namely:-
"1. When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons whether suspected or not from whom he thinks that useful information may be obtained.
2. Whenever a Police Officer has made up his mind to charge a person with a crime, he should first caution such a person before asking him any questions, or any further questions as the case may be.
3. Persons in custody should not be questioned without the usual caution being first administered.”
30. Murray C.J. quoted from a judgment in the case of R v. Voisin [1918] 1KB531 at p. 323 as follows:-
“These Rules have not the force of law; they are administrative directions the observance of which the Police Authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these Rules, may be rejected as evidence by the Judge presiding at the trial.”
31. Murray C.J. went on to state:-
“In short, a breach of the Judges’ Rules, such as the failure to give a caution, does not automatically require a Judge to exclude from evidence a voluntary statement made by an accused.”
“A Garda Investigator is not obliged to caution a person simply because he is a suspect. Counsel for the applicant acknowledged at the hearing that he could not argue otherwise as there is no authority to support a contrary proposition.”
A voluntary witness statement, whether it be that the person who makes a statement is a suspect or not, is admissible and the discretion which resides in the Trial Judge to exclude it, if he considers, on the grounds envisaged by law, that this should be done in the circumstances of the case.
32. In The People (DPP) v. Breen (Unreported, Court of Criminal Appeal, Egan J. 13th March 1995), the following is stated:-
“..Whether the objection to the statement be unconstitutional 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.”
Conclusions
33. The court is satisfied on the facts of this case, and based on the two garda witnesses who gave evidence on the issue at the trial, (and which was the only evidence heard in relation thereto), that they were freely invited to enter into 105, Lenihan Avenue by the owner, or the apparent owner of that house, Mr. Colbert. The court is also satisfied, again on the facts of this particular case, that the gardai were invited by Mr. Colbert to enter into the bedrooms on the upstairs level of the house, having been informed by Mr. Colbert that the appellant, and certain other individuals were sleeping in these rooms. The evidence did not suggest that 105, Lenihan Avenue was the usual or regular place of residence of the appellant. The present case can therefore be distinguished from the case of The People (At the suit of the Director of Public Prosecutions) v. David Lynch. In the Lynch case the applicant was a squatter and trespasser but the premises still represented his usual or regular place of residence for some time prior to the relevant search. He was unquestionably dwelling there, notwithstanding that he had no legal or beneficial right to do so. The present case is entirely different. There was no evidence that 105 Lenihan Avenue was this appellant’s usual or regular place of residence. There was in those circumstances, no breach of the constitutional rights of the appellant, or, indeed, of Mr. Colbert in the context of Art. 40.5 of the Constitution.
34. The gardai, having lawfully entered 105, Lenihan Avenue, and having lawfully entered into the appellant’s room, proceeded to interview the appellant with his full consent and apparent co-operation, and in a manner which, the court is satisfied, was fair and reasonable.
35. The appellant was undoubtedly a suspect in the minds of the gardai in relation to the killing of the deceased, as was so found by the learned trial judge. It was not at that time the intention of Det. Gda. Murphy to arrest the appellant in relation to Mr. McMahon’s death. In those circumstances, a caution was not required.
36. The court is also satisfied that the provision by the appellant of clothing to Det. Sgt. Murphy was made on the basis of an offer to provide that clothing to the gardaí made freely and in circumstances where he was fully aware that such clothing would be taken away by Det. Sgt. Murphy for the purposes of being subjected to forensic examination.
37. The rulings made by the learned trial judge in respect of the appellant now seeks to complain were both reasonable and correct, and were made in circumstances where the learned trial judge had had the benefit of hearing oral evidence from the relevant garda witnesses in the course of a voir dire. No error of principle has been identified by this court in relation thereto, and there is nothing to suggest either that the appellant’s trial was unsatisfactory or that his conviction is unsafe.
38. For these reasons, the appeal is dismissed.
