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Cite as: [2019] IECA 317

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The President

McCarthy J.

Kennedy J.

BETWEEN/

THE COURT OF APPEAL

Record Numbers: 30/18

21/18

2/18

THE DIRECTOR OF PUBLIC PROSECUTIONS

- AND -

PATRICK ROCHE

- AND -

PHILIP ROCHE

- AND -

ALAN FREEMAN

RESPONDENT

APPELLANT

Judgment of the Court delivered on the 19th day of December 2019 by Ms. Justice

Kennedy.

Introduction

1. The appellants seek to appeal against conviction. Following a nine-week trial, the

appellants were convicted before Limerick Circuit Criminal Court on the 27th July 2017.

2. Patrick Roche was convicted of two counts of aggravated burglary contrary to section 13

of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997; and dishonest handling contrary to section 17 of the Criminal Justice (Theft and

Fraud Offences) Act 2001. He received a sentence of 17 years’ imprisonment with three

years suspended.

3. Philip Roche was convicted of two counts of aggravated burglary contrary to section 13 of

the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997; and possession of stolen property contrary to section 18 of the Criminal Justice

(Theft and Fraud Offences) Act 2001. He received a sentence of 15 years’ imprisonment

with three years suspended.

4. Alan Freeman was convicted of one count of aggravated burglary contrary to section 13 of

the Criminal Justice (Theft and Fraud Offences) Act 2001 and five counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997. He received a sentence of 14 years’ imprisonment with three years suspended.

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Background

5. The offences in question relate to two separate incidents of aggravated burglary in Co.

Limerick. The first aggravated burglary was committed at Sunville House (the Garvey

home) and involved all three appellants and the second aggravated burglary took place at

the home of the Creeds and involved Patrick and Philip Roche only.

The Garvey House

6. On the 13th April 2012, a sky-blue BMW was stolen from a location in Cappaghmore, Co.

Limerick. This vehicle was then used in the aggravated burglary at Sunville House on the

16th April 2012. On the night in question, Gerard and Anne Garvey were at home with

their four children who were aged between 14-16 at the time. At 9:40pm, four men

gained entry into Sunville House, breaking the glass of the patio door. The men were

armed with various implements including a sawn-off shotgun, sledgehammer and a

baseball bat. The men split up inside the house in order to take control of the occupants.

Two of the men went upstairs where three of the children were situated along with Anne

Garvey. Graham Garvey, who was 14 at the time, was struck by one of the men. At the

same time, Gerard Garvey was kept downstairs where he was restrained lying on his

stomach with handcuffs. He was assaulted a number of times. Evidence was given that

threats to the effect of “We’ll blow your head off. We’ll kill your daughter. We’ll take away

your kids. You will never see them again” were made against Mr Garvey in the presence

of his daughter Gillian who was 14 at the time. At one point, a shotgun was pressed

against Mr Garvey’s forehead. Anne Garvey was threatened a number of times in front

of her children. She then led the men to a safe in the bedroom from which she removed a

white envelope containing 3000 USD and 2000 in sterling which she gave to the men.

Once the men received the money, they restrained the rest of the family members with

cable ties and fled the scene in a BMW.

7. Approximately an hour after the incident at Sunville House, two Gardaí on mobile patrol

became suspicious of two vehicles which appeared be driving in convoy. The Gardaí

followed the vehicles, one of the vehicles got away but the other vehicle was stopped; a

BMW registration number 08 C 40057 and one of the occupants of that car was identified

to be Patrick Roche. He was the front seat passenger. The car was searched and various

items including a black balaclava, rubber gloves, handcuffs and a screwdriver were found.

When Patrick Roche was searched, it transpired that he was wearing three pairs of pants

and two pairs of socks. Patrick Roche was arrested and charged with an offence contrary

to s.15(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and was released

on bail. On the 17th April 2012, he was arrested by Detective Garda O’Connell on

suspicion of committing an offence contrary to s.73 of the Criminal Justice Act 2006,

namely, on suspicion of a serious offence, for the benefit of, or direction of, or association

with a criminal organisation, to wit an aggravated burglary at Sunville House, Co.

Limerick. He was detained and his clothing was seized and on later analysis shards of

glass were found therein. Samples of these were sent for forensic analyses and were

found to offer moderate support for the view that Patrick Roche had contact with the patio

window from Sunville House.

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8. The black balaclava was found in the front passenger side door, as were the rubber gloves

and the screwdriver. 1850 USD were found in the glove compartment and the handcuffs

and handcuff keys were found in the pocket of a jacket. Finally, a ski mask described as

similar to a balaclava was discovered between the front seats.

9. The evidence disclosed that the handcuffs found in the BMW were similar to those used to

restrain Mr Garvey and the keys found opened the handcuffs found in the vehicle and also

opened the handcuffs which had been used to restrain him.

The Creed House

10. The second incident took place on the 31st May 2012 in a house located in relatively close

proximity to Sunville House. This house was occupied by three siblings, William, Nora and

Chrissie Creed who were aged 74, 68, and 72 respectively at the time. Shortly after 9:30

pm on the night in question, Nora and Chrissie were in the parlour when two men broke

into the house, roaring and shouting. William, who had gone to bed, heard the commotion

and went to the front door where he was then knocked to the ground, pulled along the

floor and punched repeatedly in the head and chest. The perpetrators were armed with

some form of handle, as well as a butcher knife and a screwdriver. William was punched

repeatedly in the face and stabbed in the head several times with a screwdriver. One of

the perpetrators shouted that he was on drugs and he could get very violent and

threatened to stab him and cut his throat. At one point, one of the perpetrators cut

William’s hand. Meanwhile, Chrissie and Nora were also subject to serious violence as

they were knocked to the ground and punched. All three were tied up with belts and cable

ties and told that they would be killed if they did not co-operate and tell them where their

money was. After a period of time, the raiders were told where the money was to be

found. They located and stole €5,000 from the house and left shortly thereafter. The men

fled through the fields and were collected by a third man. The scene was subject to a

forensic examination and ten days after the incident, Nora Creed, contacted the Gardaí

and gave Garda Vincent Donnellan a fingertip of the glove which she said she had found

in the rubbish bin. This was potentially significant as her sister Chrissie had pulled the tip

from a glove worn by one of the two raiders.

The Vehicles

11. The bill of indictment originally charged 34 separate counts; five of these charges were

severed from the indictment. Some of the charges related to another aggravated

burglary and false imprisonment at the Cruise family home on 13th April 2012. The

counts referable to that incident were severed from the indictment. In the course of that

burglary, a sky-blue BMW M5, registration number 00 WW 1000 was stolen. This

vehicle was then used in the Garvey aggravated burglary.

12. Mr William Gammell gave evidence that sometime around March 2012, he was introduced

to Alan Freeman by John Cahill and asked to store a white Mitsubishi Lancer for Alan

Freeman. It seems that this vehicle was connected to the Cruise aggravated burglary.

Subsequently, he was again asked to store a vehicle for Alan Freeman, this time a sky-

blue BMW M5; 00WW1000. Mr Gammell gave evidence that some days later, he was

contacted by John Cahill, who said he was in trouble and following which he met with

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John Cahill and Philip Roche outside Cappaghmore where the sky-blue BMW was parked

in an old shed and John Cahill needed a lift for himself and Philip Roche. This was

following the Garvey aggravated burglary and Patrick Roche’s arrest while a passenger in

a BMW 08C40057. That car was owned by Christopher Stokes, who was the driver on

the relevant date.

13. At some later stage, Mr Gammell said he received a phone call from Patrick Roche who

told him that he had a Volkswagen Touareg Jeep 2006 KY 2112 for him. This jeep

was used in the Creed aggravated burglary.

14. Finally, Mr Gammell was contacted to meet Alan Freeman, Philip and Patrick Roche at the

Horse and Jockey pub, where he collected a Toyota Landcruiser Jeep; registration

number 06 KE 8015 which transpired to have been stolen. This was the subject of counts

8 and 34 on the indictment; both handling charges. Count 8 concerned Patrick Roche; he

was acquitted of this charge and count 34 concerned Alan Freeman; this count was

severed at the outset of the trial.

The Accomplices

The Garvey House accomplice

15. John Cahill was called as a witness in the trial. He contacted the Gardaí while serving a

prison sentence and made a statement regarding his role in the aggravated burglary at

the Garvey home on 16th April 2012. He gave evidence about his role in that aggravated

burglary and said that he was present in the blue BMW M5 waiting to collect the raiders

from the Garvey home.

16. Mr John Cahill gave evidence that on the date of the Garvey aggravated burglary, 16th

April 2012, he was waiting in this vehicle for the raiders. They travelled in the blue BMW

until just outside Cullen village when Patrick Roche and Christopher Stokes got out of the

vehicle and into another BMW; registration number 08 C 40057. John Cahill said that Alan

Freeman also got out of the car and into a dark Volkswagen Sirocco. The BMW 08 C

40057 was the vehicle which was stopped by the Gardaí; driven by Christopher Stokes

and with Patrick Roche in the passenger seat.

17. Thereafter, William Gammell received a phone call from John Cahill stating that he

needed a lift, as a result of which Mr Gammell collected Mr Cahill and Philip Roche outside

Cappaghmore, at an area known as Kennedys Woods. He testified that Mr Cahill said that

Patrick Roche had been arrested and that they had burgled Sunville House. He said that

Philip Roche was shouting that they needed to hide a black bag containing items used in

the burglary. Mr Gammell drove towards Doon, where he stopped the car and John Cahill

and Philip Roche jumped out and hid the bag. He then dropped both men to John Cahill’s

home. The next day, Mr Gammell collected the blue BMW and drove behind John Cahill,

eventually meeting him in a wooded area where John Cahill set the car alight. A witness,

Patrick Ryan, testified that he saw a jeep driving behind a blue BMW. The blue BMW was

subsequently discovered on fire. A few days later Mr Ryan saw the same jeep being

driven by William Gammell.

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The Creed House accomplice

18. The accomplice to the Creed burglary, William Gammell, said that on the 31st May 2012

he collected Patrick and Philip Roche from Cappawhite in County Tipperary driving a

Volkswagen Touareg, registration number 06KY2112, and dropped them to Pallasgreen

County Limerick, close to the home of the Creed family at approximately 9 pm. He gave

evidence that the men were carrying a brown Dunnes Stores bag, it seems that Mr

Gammell then separated from the two men and some 20 minutes later he was contacted

to return and collect them and he did so, on this occasion, he said the men changed

clothes and footwear, placing their outer clothing into the Dunnes Stores bag.

Significantly, he described Patrick Roche saying that one of the occupiers of the house

had pulled a finger from his glove and he, (Mr Gammell) noticed that one of the fingers

from Mr Roche’s glove was missing. When Patrick Roche got out of the jeep, he told Mr

Gammell to burn the Dunnes Stores bag. Instead Mr Gammell stopped near a railway

bridge on his way to Monard and hid the bag behind a wall. He subsequently brought the

Gardaí to this area; the bag was found which contained various items of clothing which

were examined, and DNA was found on the mouth and nose area of a balaclava relevant

to Patrick Roche and a black woollen glove relevant to Philip Roche.

Grounds of appeal

19. The appellants put forward a combined total of 34 grounds of appeal, as outlined in their

notices of appeal. A number of the grounds of appeal overlap so they will firstly be

considered together below, following which the singular grounds of appeal will be

considered.

Common grounds of appeal

Ground 9 of Philip Roche and ground 14 of Patrick Roche-Application for a separate

trial

The Learned Trial Judge erred in law in failing to order a separate trial following matters

prejudicial to the appellant contained in Alan Freeman's memorandum of interview being

adduced by the prosecution.

20. During the trial, a memorandum of interview of Alan Freeman was read into the record in

the presence of the jury. The memorandum contained a number of statements by Mr

Freeman alluding to his co-accused. Patrick Roche and Philip Roche take issue with the

following extract from the interview:-

“Question: “Do you know Christopher Stokes?”

Answer: “He’s my wife’s cousin, I know of him. As far as I know he is charged and

before the Courts with that robbery”.

Question: “How did you hear that he had been arrested?”

Answer: “Packie Roche is my wife’s brother and the family heard about it.”

Question: “Would it be fair to say you and Packie are friendly?”

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Answer: “No, it would not be fair to say we are friendly. There are serious

allegations against that man, and he should have no friends, so I’m not pally with

that man.”

The impugned portion of the memorandum of interview goes on to say:

“Question: Why do you think you are being linked to Packie Roche?"

Answer: "Because he's my wife's brother, I've nothing to do with them, they go

around killing people."

Question: "What do you mean by that?"

Answer: "Sure they got arrested for tying up someone."

The interview continues:

Question: “We’re investigating a serious crime and your name has come linked into

it?” Answer: “I had not one thing to do with it, I’m a family man myself.”.

Question: “Are you aware of John Cahill/William Gammell?”

Answer: “They’re dangerous people, that Gammell fellow is charged with tying up

old people.”

21. Following this, an application for a separate trial on behalf of Patrick Roche was made on

the basis that these remarks were extremely prejudicial; specific reliance was placed on

the answer given to the question:

“Why are you being linked to Packie Roche, namely; “I have nothing to do with

them, they go around killing people.”

22. Mr Lynam BL, counsel for Patrick Roche, argued that the material introduced by virtue of

the memorandum of interview prejudiced his client to such a degree that the only remedy

was a separate trial. Mr Lynam, in making the application for separate trials, indicated a

preference that the trial judge would not advise the jury to disregard the remarks in the

memorandum of interview as to do so, would in effect cause further prejudice. He

emphasised that the only remedy was that of a separate trial.

23. Counsel for Philip Roche then joined the application seeking a separate trial for his client

on the basis that he was tarnished with the same brush and had suffered the same

irreparable prejudice as the pronoun “they” had been used.

24. The trial judge refused this application, stating that he was not satisfied that the content

of the memorandum of interview caused irreparable prejudice, moreover, that he would

hear suggestions as to how the matter could be addressed, if at all.

Submissions of Philip Roche & Patrick Roche

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25. The appellants submit that this evidence permitted the jury to infer that the appellants

had a propensity for criminal behaviour and therefore was highly prejudicial.

26. The appellants further argue that the trial judge failed to address the jury in relation to

this issue and direct that the memorandum of interview of Alan Freeman was not

evidence against the appellant. In those circumstances, it is submitted that a failure to

order a separate trial jeopardised the appellants’ right to a fair trial.

Submissions of the respondent

27. The respondent submits that firstly, the contested part of the interview makes no

reference to Philip Roche and therefore his complaint in this regard is without substance.

In relation to Patrick Roche, the respondent submits that the prejudicial value of the

evidence was inconsequential in the context of the trial: the printed version of the

memorandum given to the jury was edited to exclude the evidence in question and the

contentious remarks formed part of general antipathy towards the appellant by Mr.

Freeman and can be understood in that context. The respondent submits that such

prejudicial comments may arise in a joint trial, but this does not mean that a separate

trial is required, and in this case the trial judge dealt with the matter adequately in his

charge. The respondent accepts that the trial judge did not expressly deal with the

evidence in question, but it is submitted that it was sufficient to charge the jury that the

evidence in the memos related to Mr. Freeman only.

28. The respondent submits that the general rule in discharging a jury, as considered in The

People (DPP) v. Coughlan Ryan [2017] IECA 108, emphasises the robustness of juries to

consider the evidence in light of judicial warnings. As such, the trial judge exercised his

discretion on the issue in a correct fashion.

General Discussion

29. Patrick and Philip Roche both applied for separate trials on the basis of prejudice to them

arising from the content of Alan Freeman’s interview while in Garda custody. If the

application had been successful, the trial would have proceeded, at the time, solely in

respect of Alan Freeman.

30. What must be said at the outset is that an unusual approach was taken in that the

application was made on day 19 of the trial. Undoubtedly the parties had the book of

evidence and disclosure in advance of the trial, yet the application was made at a very

late stage in the proceedings. Ordinarily, if a party has a concern regarding memoranda

of interview of a co-accused, the party would either ensure the material was not adduced

on the basis that its prejudicial effect outweighed the probative value as against the

person whose interview it is, or an application is made for separate trials. To make an

application for separate trials on the 19th day of a trial, when the concern must have

been known is not desirable.

31. As a general principle, where two or more accused are charged with the same offence, or

with separate offences arising from the same incident, they will be tried together, unless

to do so would give rise to an injustice. As stated by Sullivan P. in Attorney General v.

Joyce [1929] IR 526:-

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“…the trial judge may direct that they be separately tried if, in his opinion, separate

trials are desirable in the interests of justice. The trial judge has a discretion in the

matter which must be exercised judicially. The exercise of such discretion may be

reviewed by this Court, and a re-trial directed, if we are satisfied that a refusal to

direct separate trials has resulted in a miscarriage of justice.”

32. In order to properly exercise his or her discretion, a trial judge must assess the evidence

before him or her. Separate trials will not necessarily be ordered in circumstances where

the content of a memorandum of interview of one accused implicates another accused. It

is always a question of discretion.

33. The first observation we make concerns the appellant Philip Roche. The application to

sever the indictment was initially made by counsel on behalf of Patrick Roche. Insofar as

complaint was made on behalf of Philip Roche, such was made on the basis that the word

“they” was used by Alan Freeman in the course of interview, thereby tarnishing Philip

Roche’s character.

34. As we have observed, the trial judge must exercise his or her discretion judicially, the

exercise of which may serve to take either the prosecution or the accused from the risk of

prejudice should parties be tried together. It is the long-standing position that mere

embarrassment on the part of an accused will not be sufficient to sever an indictment.

More than that is required. The central issue is that of the interests of justice, this Court

will only intervene if the refusal of an application for separate trials has resulted in a

miscarriage of justice.

Conclusion on ground 9 - Philip Roche

35. The interests of justice ordinarily dictate that persons charged with the same offences or

offences arising from the same incident ought to be tried together. Leaving aside the fact

that joint trials save time and expense and enable juries to be furnished with the

complete picture, should each individual be tried separately, each would then be able to

blame the other for the offending conduct. This cannot be said to be in the interests of

justice. However, should a joint trial result in an unfair trial, this cannot be said to be in

the interests of justice. Therefore, every application for the severance of an indictment

must be treated with care by the trial judge. We have considered the impugned portion of

the memorandum of interview and cannot see that the trial judge exercised his discretion

in a manner which resulted in an unfair trial as regards Philip Roche. The application

made on his behalf was tenuous indeed and could not be said to have caused him the

type of prejudice which would give rise to the necessity for a separate trial or indeed to

any prejudice at all.

Discussion – Ground 14 – Patrick Roche

36. As regards Patrick Roche, the application was moved on the basis that the words

contained in the memorandum of interview caused him irredeemable prejudice which

could only be rectified by a separate trial. Counsel in the course of his application was of

the view that the trial judge not advise the jury to disregard the content of the interview

but that the only remedy was to order a separate trial.

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37. As we have observed, this Court will only intervene if the refusal of the application gives

rise to a miscarriage of justice. It is the position that in his interview, Mr Freeman

demonstrated an aversion on his part towards Patrick Roche, however, he also described

the accomplices John Cahill and William Gammell as dangerous people. In a joint trial, an

accused may make remarks disparaging of another accused or indeed may seek to

incriminate another accused. However, this does not in and of itself require separate trials

and we are satisfied that the remarks made by Mr Freeman in interview were not of such

a prejudicial nature so as to require a separate trial, but rather were indicative of his

animosity towards Patrick Roche and indeed other persons. Furthermore, we are satisfied

that this is precisely the type of situation which underpins the rationale for a joint trial;

should each accused be tried separately, attempts can be made to blame the other

accused. It is against such a background that the remarks made by Mr Freeman must be

viewed.

38. Moreover, in the course of the application for separate trials, counsel for Mr Patrick Roche

emphasised that he did not wish the judge draw attention to the material which he

considered to be prejudicial and that the only remedy was that of a separate trial. On

many occasions during trial, a decision may be taken by a legal team not to draw

attention to a remark for fear of aggravating a situation and re-enforcing the material in

the jury’s mind. In refusing the application for severance, the judge indicated that he

would hear submissions as to what, if anything, counsel required him to advise the jury in

the course of his charge.

39. In his charge, the judge advised the jury that Mr Freeman was arrested and detained and

interviewed whilst in detention. He then went on to deal in substance with the content of

those interviews and took care to ensure not to refer to the impugned material which had

been redacted from the memorandum of interview furnished to the jury. The trial judge

did not specifically instruct the jury that the content of Mr Freeman’s interview was only

evidence in respect of him and not in respect of the other accused. It is unfortunate that

he did not do so but in circumstances where he did not refer (as indeed he was so

requested) to the impugned extracts and where the redacted version was furnished to the

jury, the judge exercised his discretion appropriately. Moreover, he advised the jury that

the position adopted by Alan Freeman was that he knew nothing in respect of either

aggravated burglary and therefore, it can be concluded that the jury viewed the

impugned remarks in that knowledge.

Conclusion on ground 14 – Patrick Roche

40. We are satisfied that the impugned remarks contained in Alan Freeman’s memorandum of

interview were not of the order of prejudice to necessitate a separate trial. Alan Freeman

demonstrated animosity towards a number of persons in his interviews and his comments

could be considered of a type seeking to place the blame other than on himself.

41. Moreover, juries have been shown time and again to be responsible and robust and of

sound common sense. The jury was advised by the judge that Alan Freeman’s case was

that he knew nothing of the Garvey or Creed burglaries and undoubtedly, they were

entitled to view the interviews in that knowledge. Therefore, whilst the jury were not

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expressly instructed that the content of his interviews was not evidence against the other

accused, it was made clear to the jury that his case was that he had no knowledge of

either burglary. Patrick Roche’s right to a fair trial was further safeguarded in that the

memorandum of interview was redacted so as to remove the impugned material. This

ground therefore fails.

Ground 7 Philip Roche and Ground 12 Patrick Roche-DNA

The Learned Trial Judge erred in law in allowing unlawfully-retained DNA samples to be

admitted into evidence.

42. By way of background, on the 11th June 2012, the Gardaí located a Dunnes Stores bag in

which was found various items, including a balaclava and gloves. DNA was extracted

from those items, specifically from the mouth area of the balaclava and from inside the

gloves and profiles generated. Subsequently, following their arrest on the 18th October

2012, DNA samples were taken from Patrick and Philip Roche by An Garda Síochána

pursuant to the Criminal Justice (Forensic Evidence) Act, 1990, as amended. On the 19th

October 2012, the samples were analysed, DNA profiles were generated and compared

with the samples from the balaclava and gloves. The comparison yielded matching

profiles. The appellants were charged on the 15th March 2016 with the offences of which

they were subsequently found guilty. The appellants argue that the samples were

retained by the Gardaí after the 18th October 2013, without seeking a retention order and

thus the samples were unlawfully retained. The Criminal Justice (Forensic Evidence) Act

1990, as amended provides for the destruction of bodily samples after a period of 12

months from the taking of the sample where proceedings for an offence has not been

instituted, subject to certain exceptions. During the trial, counsel for the prosecution

accepted that there was no excuse offered as to why there had been no application made

to retain the samples but urged the trial judge to exercise his discretion to admit the

evidence.

43. In admitting the evidence, the trial judge relied on the decision of The People (DPP) v.

Murphy [2016] IECA 287 and noted that:

“It seems to me that it is relevant to consider or not whether there had been or

the more real question is whether there had been any evidence or whether there is

any evidence of a sort of deliberate or conscious attempt to violate the

constitutional rights of the accused men by the State in holding on to those

samples, and no such violations have been identified by me, having heard the

evidence.”

Submissions of Patrick Roche and Philip Roche

44. The appellants submit that the trial judge erred in admitting the DNA evidence when the

prosecution had conceded that the samples were illegally retained and no explanation as

to why this was so was put forward. The appellant relies on The People (DPP) v. JC

[2015] IESC 31 where Clarke J. (as he then was) stated: -

“…there is also an obligation on the courts to uphold the law and to discourage

illegality.

Page 11 ⇓

It should not, therefore, be taken that evidence obtained in circumstances of

illegality should readily be admitted. Where the absence of legality arises in

circumstances properly described as reckless or grossly negligent, then the relevant

evidence should be excluded even if the illegality concerned does not result in a

breach of constitutional rights.”

Submissions of the respondent

45. The respondent argues that the trial judge was correct in his ruling and in placing reliance

on The People (DPP) v. Murphy [2016] IECA 287 and submits that the trial judge

exercised his discretion, which he was entitled to do, notwithstanding the absence of any

reason given for the illegal retention of the samples. Moreover, that the judge was correct

to admit the evidence in circumstances where it was not gathered in an unconstitutional

manner and there was no conscious violation of the appellants’ rights.

Discussion

46. Admissions pursuant to section 22 of the Criminal Justice Act 1984 were made on behalf

of both appellants at trial that the samples were lawfully taken in the course of detention.

The issue concerned that of the retention of the samples outside of the 12-month period

without an order for the retention of the samples.

47. The appellants argued that in circumstances where no explanation was offered as to why

an order had not been sought for the retention of the samples, the trial judge erred in

exercising his discretion to admit the evidence.

48. The respondent accepted at trial that no application had been made pursuant to statute

that the samples taken on 18th October 2012 be further retained on the expiration of the

12-month period thereafter. Mr Costelloe SC argues the samples were lawfully obtained

and that the only issue arising concerns the retention of the samples.

49. The relevant portion of section 4 of the 1990 Act (as amended) provides as follows: –

“4 (1) Subject to subsection (5) of this section, every record identifying the person from

whom a sample has been taken pursuant to section 2 of this Act shall, if not

previously destroyed, be destroyed as this section directs, and every sample

identified by such records shall be destroyed in like manner.

(2) Where proceedings for any offence in respect of which a person could be detained

under section 30 of the Offences against the State Act, 1939, or section 4 of the

Criminal Justice Act, 1984, or section 2 of the Criminal Justice (Drug Trafficking)

Act 1996, or section 50 of the Criminal Justice Act 2007 are not instituted against

the person from whom the sample was taken within 12 months from the taking of

the sample, and the failure to institute the proceedings within that period is not due

to the fact that he has absconded or cannot be found, the destruction of the record

and the sample identified by such records shall be carried out on the expiration of

that period unless an order has been made under subsection (5) of this section.

Page 12 ⇓

(5) If a court is satisfied, on an application being made to it by or on behalf of the

Director of Public Prosecutions, or the person from whom the sample was taken,

that there is good reason why records and samples to which this section applies

should not be destroyed under this section, it may make an order authorising the

retention of such records and samples for such purpose as it may direct.”

50. The proceedings against each of the appellants did not commence until 15th March 2016,

a period well beyond the 12-month timeframe under the Act. As can be seen from section

4(2) of the Act, in the ordinary course, samples taken must be destroyed where

proceedings for an offence for which a person could be detained under the 1984, 1939,

1996 or 2007 Acts had not been instituted against the individual within a period of 12

months from the taking of the forensic sample. Therefore, the legislation required the

destruction of the samples taken from each appellant and the records pertaining thereto

to be destroyed before midnight on 17th October 2013.

51. In the course of the trial in the court below, counsel for the appellant applied to the trial

judge to exclude the forensic evidence on the basis that the samples had been unlawfully

retained and therefore the results of the forensic examination, that is the DNA evidence,

ought not to have been admitted. The trial judge concluded that the samples had been

lawfully obtained and any issue which arose thereafter concerning the retention of the

samples amounted to an illegality and therefore he retained the discretion to admit the

evidence. He decided to exercise his discretion in favour of the prosecution and said: –

“Samples should have been destroyed by 18th October 2013. I am, however, asked

to exercise my discretion to allow into evidence the samples and I suppose the

results which flow therefrom, notwithstanding the fact that the samples, was

properly or, if I could push it, illegally obtained were after a certain period of time

illegally detained or stored.

Firstly, I’m satisfied that was no explanation was given to me to assist me in

exercising the discretion that I’m being asked to exercise, that the excuse that was

given, if you could call it that, in The People (DPP) v. Murphy [2016] IECA 287– and

I’m going to read out the relevant section and this was given by forensic scientists

and what has been described as the excuse is as follows: “that the legislative

provisions requiring the destruction of DNA samples and their associated records

after the expiry of time permitted for their local retention has been largely ignored

by the authorities.” That’s not much of an excuse. It lacks detail and is such that it

doesn’t even constitute an explanation as to why there had been a practice of

retaining the samples…The more real question is whether there had been any

evidence or whether there is any evidence of this sort of deliberate and conscious

attempts to violate the constitutional rights of the accused men by the State in

holding onto the samples, and no such violations have been identified by me,

having heard the evidence. I should also say that it is clear that there was no

violations in respect of the collection acquisition of the samples. That all seems to

have been done correctly in accordance with law.”

Page 13 ⇓

52. He continued as follows: –

“The retention beyond 18th October 2013 was unlawful but was not, as is clear

from the judgment in DPP v. Murphy, not something which retrospectively breaches

the accused’s constitutional rights. I’m satisfied that, notwithstanding the lapse of a

considerable period, that given the circumstances of the case as I know to be on

the basis of the evidence that I’ve heard to date, it is correct that I exercise my

discretion to admit this evidence.”

Conclusion

53. In the decision of McGinley v. Reilly and DPP [2009] 3 IR 125, Peart J., in considering a

sample taken pursuant to s.2 of the Criminal Justice (Forensic Evidence) Act, 1990 and an

individual’s right to privacy said as follows: –

“The applicant's rights to bodily integrity and his other undoubted rights, including

fair procedures, must be balanced fairly with society's rights.

54. In the present case, samples were taken from each of the appellants whilst they were

detained in lawful custody. The samples were taken lawfully in accordance with the

provisions of the legislation. If the appellants had been charged with the offences of which

they were ultimately convicted within the 12-month time period, no issue could have been

taken with the admissibility of the forensic evidence. However, as no application was

made seeking to retain the samples of the records pertaining thereto after the 12-month

time period had elapsed, the appellants argued that the results of such samples and the

records could not be relied upon by the respondent at trial.

55. It is important to look at the timeframe when the appellants’ samples were analysed and

compared with the profiles generated from the items found in the Dunnes Stores bag. The

samples were taken on 18th October 2012 and the analysis was carried out on 19th

October 2012. Therefore, the results of the forensic analysis were known within a day of

the samples being taken from the appellants. It is clear that the samples were lawfully

obtained but it is equally clear that the samples and the records relating to the samples

were unlawfully retained beyond 17th October 2013 in the absence of any order

extending their retention beyond that date.

56. The purpose of taking the samples in the first instance was for the investigation of the

offences for which the appellants had been arrested. The purpose of carrying out the

forensic analysis was to seek to obtain evidence in respect of that investigation linking the

appellants to the crime. Retention of samples is permissible pursuant to the legislation

beyond the 12-month period from the taking of the sample. An application could have

been made before the courts for such an order, this was not done, and no explanation

was offered before the trial court to explain this failure.

57. The trial judge properly concluded that the retention of the samples and the records

beyond the time period permitted amounted to a breach of a legal right and therefore he

had a discretion as to the admissibility of the forensic evidence. It is clear that the

Page 14 ⇓

samples were lawfully obtained, and it is equally clear that the retention of the samples,

albeit contrary to statute, was not done in order to infringe on the appellants’

constitutional rights. As was stated by this Court in The People (DPP) v. Murphy

I[2016] ECA 287:-

“The fact that sometime later the destruction of sample was not effected as

provided for by legislation, does not retrospectively create a breach of the

appellant’s constitutional rights.”

58. As we have stated, the samples were lawfully obtained and the use to which the samples

were put was a lawful one. The samples were analysed for the purpose of the criminal

investigation within the 12-month time period and so, when the analysis took place, the

samples were not only lawfully obtained but were lawfully retained. The subsequent

retention of the samples, beyond the permitted time period, was unlawful. However, this

was a matter within the discretion of the trial judge and in the circumstances of the case,

where the samples were lawfully obtained and where the forensic examination was

conducted when the samples were lawfully retained, the judge was perfectly within his

entitlement to exercise his discretion in favour of the respondent. This is not to say that

the Gardaí should be ignorant of the legislation and allow time to pass without seeking an

order for the retention of samples and records in appropriate circumstances. However, in

the context of this particular case, when the analysis was conducted promptly, the trial

judge exercised his discretion appropriately and this ground fails.

Grounds 11 and 13 of Patrick Roche’s Grounds of Appeal and Grounds 6 and 8 of Philip

Roche’s Grounds of Appeal.

59. These grounds of appeal are inextricably linked and concern the validity of the arrest of

each appellant. Grounds 11 and 6 concern the validity of a search warrant issued by the

District Court to search the home of Patrick and Philip Roche, subsequent to which each

was arrested and Grounds 13 and 8 concern the legality of the arrest of both men. The

background concerning grounds 13 and 8 is somewhat complex in that the issue initially

raised at trial concerned the legality of the arrest of the appellants, where the trial judge

found the arrest of each appellant to be unlawful. However, as events unfolded during the

trial, the trial judge reversed his ruling and found in favour of the respondent. This ruling

now forms the foundation for grounds 13 and 8 which we will address following the

determination of grounds 11 and 6.

Ground 11 of Patrick Roche and ground 6 of Philip Roche - Error on the face of the

warrant

The Learned Trial Judge erred in law in finding that there was not an error which went to

jurisdiction on the face of the warrant dated the 17th October 2012 for 24 Kilcronan

Close, Clondalkin, D22.

60. Sergeant Ted Riordan made an application for a search warrant in respect of the first and

second-named appellants’ home address at 24 Kilcronan Close, Clondalkin, Dublin 22

before Blanchardstown District Court on the 17th October 2012 pursuant to s.10 of the

Miscellaneous Provisions Act 1997 as substituted by the Criminal Justice Act 2006. The

warrant was issued by the District Court judge and the following morning, on the 18th

Page 15 ⇓

October 2012, the search warrant was executed and the first and second-named

appellants were arrested.

61. During the course of the trial, counsel for the first and second-named appellants

challenged the legality of the warrant on the basis that it contained a significant error on

its face as it did not reflect the wording of the statute pursuant to which it was issued,

thus depriving the judge of jurisdiction to issue the warrant.

62. The relevant portion of s.10 of the Criminal Justice (Miscellaneous Provisions) Act 1997,

as substituted, states that: -

10(1) -“ If a judge of the District Court is satisfied by information on oath of a member

not below the rank of sergeant that there are reasonable grounds for suspecting

that evidence of, relating to, the commission of an arrestable offence is to be found

in any place, the judge may issue a warrant for the such of that place and any

persons found at that place.

(2) A search warrant under this section shall be expressed, and shall operate, to

authorise a named member, accompanied by such other members or persons or

both as a member thinks necessary –

(a) to enter, at any time or times within one week of the date of issue of the

warrant, of production if so requested of the warrant, and if necessary by the

use of reasonable force, the place named in the warrant,

(b) to search it and any persons found at that place, and (c) to seize anything

found at that place, or anything found in the possession of a person present

at that place at the time of the search, that that member reasonably believes

to be evidence of, or relating to, the commission of an arrestable offence.”

63. The relevant portion of the search warrant issued did not include the words “as the

member thinks necessary” and therefore read as follows:-

"Blanchardstown District Court No. 1, section 10 of the Criminal Justice

Miscellaneous Provisions Act 1997, warrant to search. “Whereas it appears to me

that as a result of information on oath of Sergeant Ted Riordan, Bruff Garda

Station, a member of An Garda Síochána not below the rank of sergeant that there

are reasonable grounds for suspecting that evidence of or relating to the

commission of an offence referred to in subsection 1 of section 10 of the Criminal

Justice (Miscellaneous Provisions) Act 1997 to wit, aggravated burglary, contrary to

section 13(1)(3) Criminal Justice (Theft and Fraud Offences) Act 2001 is to be

found namely at 24 Kilcronan Close, Clondalkin, Dublin 22. I, being satisfied that

the grounds set out are reasonable, herewith authorise Sergeant Ted Riordan, a

member of An Garda Síochána of Bruff Garda Station, accompanied by any other

members of An Garda Síochána to enter within one week of the date thereof, if

necessary by the use of reasonable force, the place situated at Kilcronan Close,

Clondalkin, Dublin 22 in the said District Court, to search the place and any person

Page 16 ⇓

found therein and to seize anything found out that place or anything found in

possession of any person present at that place at the time of the search which the

said member reasonably believes to be evidence of or relating to the commission of

aforesaid”

64. In upholding the legality of the warrant, the trial judge ruled that:-

“…it seems to me that the warrant on the face is not defective. I'm satisfied that

when Garda Riordan got that warrant, that he's governed by the provisions of

Section 6 of the 2006 Act, which amended the 1997 Act. And there's no evidence

to suggest that him, as the member who was named as the person authorised,

there's no suggestion at all that he was doing anything other than exercising the

powers conferred on him to this warrant, other than in accordance with the Act and

in particular in accordance with subsection 6, subsection or, sorry, section 6, the

amendment to the 1997 Act. And it seems to me that in those circumstances, he

has been operating in compliance with the statute, that he was accompanied by

such other members as he considered necessary, him being the person who was

responsible for managing and executing the search.

Mr Lynam has not suggested that each individual member ought to be named and it

would make no sense whatever that they were. His argument is that the warrant

on the face should specify or should add the following word or words to this effect;

"accompanied by other members of An Garda Síochána as are necessary or as

Sergeant Riordan considers to be necessary". I do not see that there is a

requirement for that addition in the warrant on the basis of my reading and

rereading and rereading the amendment. And so, I reject that element of the

application.”

Submissions on behalf of Patrick Roche and Philip Roche

65. It is contended that the trial judge erred in failing to have regard to the significance of the

safeguard pursuant to the terms of s.10 of the 1997 Act, as amended and the fact that

the warrant purported to disapply that safeguard.

66. The appellants argue that the absence of the words “as the member thinks necessary” is

not simply a technical flaw, as suggested by counsel for the prosecution but rather, a

sufficiently serious error on the face of the warrant, thus rendering the warrant unlawful.

Submissions of the respondent

67. The respondent submits that there was no error as to jurisdiction to issue the warrant.

The warrant was issued on application by a member of An Garda Síochána of the requisite

rank on foot of information on oath. The respondent argues that the error on the face of

the warrant was simply an inadvertent omission concerning the limitations on those who

could accompany Sergeant Riordan in the search of the premises to which the warrant

related and thereby amounted to an error of the technical kind. Such an error, it is

argued, is insufficient to invalidate the warrant. The respondent relies on the dicta of

O’Donnell J. in The People (DPP) v. Mallon [2011] 2 IR 544 in this respect where he

concluded that a mere error, especially one that is not calculated to mislead or does not

Page 17 ⇓

mislead, will not invalidate a warrant. As such, the respondent submits that the warrant

contained all the essential ingredients of a valid search warrant and the omission of the

words complained of do not undermine that.

Discussion

68. The entry onto private property can only be done in accordance with law as such entry

encroaches on the constitutional rights of the individual. In order to be validly issued,

there must be compliance with the statutory preconditions for the issuing of the warrant.

Section 10 of the 1997 Act as substituted by section 6 of the 2006 Act permits for the

issuing of a warrant to search the named premises where there are reasonable grounds

for suspecting that evidence of or relating to the commission of an arrestable offence is to

be found in that place.

69. Accordingly, a district judge must be satisfied by information on oath of a member not

below the rank of sergeant that there are reasonable grounds for suspecting that

evidence of or relating to the commission of the arrestable offence is to be found in the

place the subject of the application for the warrant.

70. A search warrant issued under this section shall be expressed and shall operate to

authorise a named member, in this instance Sergeant Riordan, accompanied by such

other members or persons or both as a member thinks necessary to enter the premises at

any time or times within one week of the date of the issue of the warrant.

71. The evidence at trial disclosed that an application was made before the district judge on

information on oath by Sergeant Riordan. The information on oath set out the grounds for

the requisite suspicion and the district judge issued the warrant.

72. The warrant was read into the record at trial and it is clear that the statutory

preconditions for the issuing of the warrant were satisfied, namely; that the district judge

was satisfied by information on oath by Sergeant Riordan that there were reasonable

grounds for suspecting that evidence of or relating to the commission of the stated

offence was on the named premises. The warrant authorised Sergeant Riordan

accompanied by any other members of An Garda Síochána to enter the property within

the requisite time period.

73. While the warrant expressly authorised Sergeant Riordan accompanied by any other

members of An Garda Síochána to enter the premises within the requisite time frame, the

warrant did not include on its face that Sergeant Riordan was authorised to enter the

property accompanied by such other members or persons or both as he thought

necessary.

74. Consequently, the appellants argue that there was not strict compliance with the terms of

the legislation and thus the warrant is invalid.

75. The question is whether this omission amounts to an error which goes to the heart of the

jurisdiction to issue the warrant or whether it is an inadvertent error on the face of the

warrant which would not in the ordinary course invalidate the warrant.

Page 18 ⇓

76. When presented with the warrant, the occupier would be in a position to identify the

warrant was issued by a district judge, the statutory provision under which it was issued,

namely section 10 of the 1997 Act, the alleged offence of aggravated burglary, the

address to be searched, namely; 24 Kilcronan Close, Clondalkin, Dublin 22, that Sergeant

Riordan accompanied by other members of An Garda Síochána were authorised to enter

the premises, the time period within which the search could be effected, the date on

which the warrant issued and that there was a suspicion that evidence in relation to the

commission of the stated offence or in connection with the offence was to be found on the

premises.

77. Lawful authority for the issue of the warrant must be demonstrated clearly on its face. It

must be clear that there was compliance with the jurisdictional requirements. When one

compares the wording of section 10 of the 1997 Act with the substituted provision by

virtue of section 6 of the 2006 Act, it is apparent that the warrant is more in keeping with

the terms of the 2006 Act. There can be no doubt but that this was an inadvertent error

and equally there can be no doubt but that this was an error within jurisdiction. It is

classically the type of situation where the District Court judge had jurisdiction to issue the

warrant but erred in misstating an aspect of the warrant in failing to include the words “as

the member thinks necessary”. Was this error sufficient to render the warrant invalid? We

do not believe this to be so.

78. In The People (DPP) v. McCarthy [2010] IECCA 89, the Court distilled a number of

principles regarding errors in search warrants:-

“(a) Documents, such as search warrants, must be carefully prepared having regard to

the fact that they entitle gardaí or other authorised officers to enter the property of

a citizen, and in the course of so doing, to use such force as may be necessary,

both to gain admission and to carry out the search and seizure authorised by the

warrant.

(b) This cautionary approach is particularly enjoined when the search warrant is in

respect of the dwelling house of a citizen, in light of the recognition granted to such

property under the Constitution;

warrant will, by virtue of the same, lead automatically to the invalidation of a

warrant;

(d) In particular where the substance of the warrant, as opposed to its form, is not

open to objection, the invalidation of the warrant will not necessarily ensue.

(e) The nature of the error, or omission, must be scrutinised by the courts to see

whether it is of a fundamental nature, including an error going to jurisdiction.

Several factors may be taken into account, including whether the error is a mere

mis-description, whether it is likely to mislead, whether it undermines the apparent

jurisdiction to issue it, according to the warrant on its face, and such matters,

Page 19 ⇓

before the courts will find, in an appropriate case, that it should be considered

invalid.

(f) It is not possible in relation to non-substantive errors, that is to say, errors which

do not affect the substance of the legislative requirements found in the body of the

warrant itself, to say that they will never lead to the invalidation of a search

warrant, due to the wide variety and nature of errors which may occur.”

79. The importance of the constitutional protection of Article 40.5 of the Constitution in

respect of the inviolability of an individual’s dwelling cannot be overstated and this serves

to emphasise the need to carefully scrutinise a warrant. A court may be presented with

many different types of errors which may or may not impact on the validity of the

warrant. O’Donnell J. clarified this area of the law and extensively analysed the case law

in The People (DPP) v. Mallon [2011] 2 IR 544. In Mallon, the error complained of

concerned the fact that the address of the premises to be searched was misstated. At

p.567 O’Donnell J. said:-

“More difficulty arises with those cases which appear to deal only with errors in the

body of the warrant. It is now quite clear that although a warrant should be

prepared with care, not every error will lead to invalidation of the warrant. In

particular, where the substance of the warrant as opposed to the form is not open

to objection, invalidity will not necessarily ensue. In such cases, the nature of the

error or omission must be scrutinised to see if it is of a fundamental nature. Among

the factors which may be taken into account whether the error is a mere

misdescription and whether it is likely to mislead.”

Conclusion

80. The error in the warrant was a failure to complete the warrant in terms of the statute.

The issue is whether such an omission makes the warrant unintelligible. Of note is the

approach commended by O’Donnell J in The People (DPP) v. Mallon [2011] 2 IR 544 He

said at p.571:-

“The approach of the court is searching and even sceptical, but not one of

deliberate, unreasonable, and unreasoning ignorance which is blind to the

communication the document seeks to make.

In approaching any document or indeed any piece of communication, it is necessary

to put it in its factual context. Where the document is legal, that may also involve

its legal context. That will involve deploying knowledge which is common to any

anticipated reader of the document, such as conventions of language, or, may

involve receiving evidence as to specific matters known to the particular audience.

This is an exercise which is carried out every day in the communication between

individuals, and rarely requires to be articulated.”

81. We are satisfied that while there was a defect on the face of the warrant, the omission

could not be said to lead to a conclusion that the search warrant was issued without

Page 20 ⇓

authority. The warrant, even absent the words “as he thinks necessary”, made it quite

clear to the reader that Sergeant Riordan was authorised to enter the premises

accompanied by any other members of the Garda Síochána. The type of defect

complained of falls within the scope of an inadvertence error, rather than a fundamental

defect. The requirement of the statute is that the warrant shall be expressed to authorise

a named member accompanied by other Gardaí or other persons as the member thinks

necessary. The warrant must authorise a named member and state that he/she may be

accompanied by other members or persons but is not invalidated by the omission of the

words “as the member thinks necessary”. The state of mind of the named member may

be given in evidence or indeed may be implied by virtue of the fact that other members of

An Garda Síochána accompany the named member. The trial judge took an admirably

rational approach to his consideration of the warrant and we find no error in his ruling.

Ground 13 of Patrick Roche and ground 8 of Philip Roche- Reversal of the ruling on

arrest

The Learned Trial Judge erred in fact and in law and acted contrary to fair procedures in

reversing his ruling that the arrest of the appellant at 24 Kilcronan Close, Clondalkin, D22

was unlawful.

82. In the course of the trial, on Friday 14th July 2017 (day 17) the legality of Patrick and

Philip Roche’s arrest on the 18th October 2012 was challenged. The first aspect of the voir

dire concerned the validity of the search warrant and the second aspect concerned the

legal entitlement of the arresting Gardaí to enter the home of the appellants.; whether

the arresting Gardaí were lawfully in the appellants’ home when the arrests were effected.

Central to the appellants’ submission was, and is, the constitutional protection provided

by Article 40. 5 of the Constitution in respect of the inviolability of the dwelling house. It

is argued that the arresting Gardaí were present in the appellants’ home without lawful

authority and thus in violation of their constitutional right.

83. Members of the Gardaí entered the dwelling in execution of the search warrant on the

18th October 2012. Two members of the Gardaí; Garda McGlinchey and Garda Young

proceeded to arrest Patrick Roche and Philip Roche respectively. In short, the appellants’

argument is that the arresting Gardaí had no power to enter the property on foot of the

search warrant where their stated purpose was that of arrest. In other words, if the

warrant was lawful, it was lawful only for the purpose of search.

84. The appellants submit that the facts of this case illustrate why s.10 of the 1997 Act, as

amended, obliges the Garda to whom the warrant issues to ensure that only those who

are necessary for the purposes of the search enter a dwelling.

85. To elaborate on the background; the voir dire concerned two issues and the respondent

called three witnesses in this regard; namely, Sergeant Riordan who gave evidence

regarding the search warrant and the execution thereof, Garda McGlinchey and Garda

Young who entered the house following the execution of the warrant. Garda. McGlinchey

gave evidence of arresting Patrick Roche and Garda Young gave evidence of arresting

Philip Roche. Each appellant was arrested pursuant to s.4(3) of the Criminal Law Act

Page 21 ⇓

1997. Evidence was given by the arresting Gardaí that on entering the house, they each

immediately arrested the appellants. Garda Young stated that his role was that of arrest

and no evidence was given by either member that they took part in the search.

86. The submission on behalf of the appellants can be simply stated; the search warrant

authorised a search of the premises but did not authorise entry for the purpose of arrest.

The Gardaí ought to have invoked section 6 of the Criminal Law Act 1997 and informed

each of the appellants that they were present on the premises for the purpose of arrest.

87. This argument was made at trial and in response, the respondent submitted that the

Gardaí were lawfully on the premises on foot of the lawful search warrant as part of the

investigative team and were entitled to arrest the appellants. The trial judge ruled that

the arresting Gardaí were unlawfully in the appellants’ home and found the arrest

unlawful and said:-

“I'm not satisfied beyond reasonable doubt, which is the standard that I'm required

to be satisfied to, that the members were on the premises and I'm not criticising

the guards for this at all, that the members were on the premises lawfully. There

was no evidence adduced to the effect that they were there to carry out a search

and that they were there to assist Sergeant Riordan. I accept entirely that they

were members of the investigative team and there was nothing illegitimate in their

being present; but the evidence is, particularly from Garda Young, that he had no

role to play in the search. It wasn't sufficiently clear to me at all that that

pertained to only the time after the arrest of Mr Philip Roche. In those

circumstances, I'm satisfied that the arrests were not lawful.”

Application to Re-visit the Consequences of the Ruling on the Lawfulness of the Arrest

– Friday,14th July 2017

88. Thereafter, following this ruling, counsel for the prosecution sought to have the evidence

which flowed from the arrest of each appellant admitted in reliance on The People (DPP)

v. JC [2015] IESC 31. In pursuit of this objective, the respondent sought to call evidence

to address the state of mind of the relevant witnesses. The evidence which the

respondent sought to have admitted was DNA evidence which arose from the samples

taken from the appellants while in detention following arrest.

89. Gardaí McGlinchey and Young were re-called, following which evidence, counsel for the

respondent then applied to the trial judge to revisit the consequences of his ruling

concerning the lawfulness of the arrest on the basis of the emergence of new evidence.

Garda McGlinchey stated in re-examination that Patrick Roche and his family ordinarily

resided in the house at 24 Kilcronan Close. At the conclusion of his evidence, Mr

Costelloe SC flagged to the Court that he intended to raise a matter with the trial judge

separate from the “JC” application. Garda Young then gave evidence and in cross-

examination stated that if the two men had not been present in the house on the relevant

date, he would have become part of the search team. Both emphasised that the primary

purpose of their presence in the house was to effect the arrest of the two men. Strenuous

Page 22 ⇓

objection was taken to the respondent’s application by both appellants. In making the

application, counsel for the respondent said as follows:-

“My friends, as I’ve indicated, may have other witnesses that they want to call in

relation to the JC point...But I have a different matter that I'm asking the Court to

address. And I want to be clear about this; I'm not asking to you revisit your ruling

in the context of what happened this morning; however, I am asking you to revisit

the ultimate consequence of this in circumstances where you've now heard direct

evidence and cross examination to the effect that both of these guards went there

in the knowledge that both of the men ordinarily resided at that address. And

under section 6, subsection 4 sorry, subsection 2(d), if the people ordinarily

reside at an address, then subsection 2 comes into effect..”

90. The appellants submitted that such an application was fundamentally unfair and

procedurally incorrect. Moreover, it was urged on behalf of the appellants that time was

needed to consider the approach now being pressed by the respondent. Mr Lynam BL for

Patrick Roche made the bulk of the argument in opposition to the respondent’s course of

action and sought time to consider the position and possibly to call witnesses. The trial

judge was disposed to accede to this application and indicated that he would adjourn the

matter to the following Tuesday.

91. To further complicate matters, the objection to the admissibility of the DNA evidence was

ongoing. This objection was a focused one and concerned the retention of the samples

taken from Messrs Roche for the purpose of DNA analyses beyond a period of 12 months

in the absence of charge or an order for retention. Senior counsel for Patrick Roche had

streamlined the issue and was in a position to make certain admissions on the evidence

pursuant to section 22 of the Criminal Justice Act 1984, thus leaving a net point for

determination by the trial judge. The trial judge proceeded to deal with this issue and

concluded it on Friday, 14 July 2017 and adjourned the application to revisit the issue

concerning the lawfulness of the appellants’ arrest to the following Tuesday.

Tuesday 18th July 2017

92. Counsel for the respondent firstly indicated that he had misstated the law concerning the

use of s.6(2) of the Criminal Law Act 1997, in that he had contended that it was incorrect

to suggest that the Gardaí were required to inform occupiers of a dwelling that entry was

being gained pursuant to s.6 of the 1997 Act. He submitted on behalf of the respondent

that reliance would be placed on The People (DPP) v. Laide & Ryan [2005] 1 I.R. 209.

93. The argument was advanced on behalf of the respondent that the trial judge could

lawfully review the decision made in light of the fresh evidence from Gardaí McGlinchey

and Young and in this respect the respondent relied on The People (DPP) v. Collins

[2011] IECCA 64.

94. The trial judge accepted the respondent’s submission that he was entitled to review his

decision in light of additional evidence being introduced and concluded on considering this

new evidence, that the Gardaí were there for a dual purpose and therefore the arrest was

Page 23 ⇓

lawful. In ruling that he was entitled to revisit his ruling on the voir dire, the trial judge

said:-

“Firstly, I asked if having made a decision on the issue on the voir dire, I was

entitled to reconsider the decision I had made, or for that matter, to deal with a

new application in respect of what is essentially the same issue. Strong opposition

to this has been raised by counsel for the first and second named defendants,

understandably so. Having considered the position, it seems to me that the

decision of the Court of Appeal and the DPP v. Sharon Collins, [2011] IECCA 64

is of some assistance in that it supports the proposition that a trial judge is not

precluded from reviewing a previous decision in light of additional evidence being

introduced. A trial is a fluid process, and important evidence which provided clarity

as to the primary purpose of the arresting gardaí's presence on the 18th was given,

and I cannot see how this evidence causes any injustice or unfairness to the

accused. It's simply constituted in clarification as to the principal reason for their

being present on the morning, that is to effect an arrest and the belief that the men

ordinarily resided there, that is the Roches. I am not convinced by Mr Lynam's very

eloquent argument that this application and my consideration of the matter is

either an abuse of process or that it amounts to or that it amounts in some way

to my dealing with matters which I'm estopped from dealing with. The proceedings

in this case have not been concluded and the doctrine of res judicata is offended by

my considering this application. I'm satisfied, therefore, that it is within my

discretion to reconsider the matter or consider the fresh matter, whichever way you

prefer to look at it. Trials are an intricate part of the administration of justice. And

if my reconsidering the matter in light of additional evidence or clarification of

evidence is in the interests of establishing the truth in respect of the issue, I would

be in dereliction of my duty not to do so.”

95. Having decided that he was entitled to revisit his ruling of the voir dire, the trial judge

then distinguished the facts of the instant case and those in The People (DPP) v. Laide &

Ryan [2004] 1 I.R. 209, and said as follows:-

“In this case, the case that we're dealing with presently, the warrant is not bad.

The entry by the two members of An Garda Síochána was for the purpose of

arresting the first and second named defendants which the gardaí were entitled to

do under the provisions of section 6. The prior execution of the search warrant

made entry for them more convenient. I'm conscious that the sanctity of the

dwelling had at this stage already been lawfully breached by An Garda Síochána

pursuant to their entry on foot of a search warrant. The subsequent entry thereon,

for purposes lawfully permitted, that is arrest, by the two relevant members of An

Garda Síochána who gave evidence of being part of the investigation team and one

of whom, Garda Young, gave direct evidence that he would probably have taken

part in the search if the men weren't there, cannot in all of the circumstances be

seen as a violation of the sanctity of the dwelling and a breach of Mr Roche's rights.

Page 24 ⇓

In the circumstances, I'm satisfied that fairness dictates that I set aside my earlier

decision, that the arrests were unlawful on the basis of clarification of the evidence

and/or additional evidence which served to clarify the circumstances of entry and

arrest. I'm satisfied, therefore, that the arrests are lawful..”

96. The appellants contend that the decision of the trial judge to reverse his ruling was

contrary to fair procedures and furthermore, that he erred in fact and in law in so doing.

Submissions of Patrick Roche and Philip Roche on the procedural aspect.

97. Both appellants submit that there was no opportunity to cross-examine on the evidence

relied on by the prosecution to re-visit the ruling, as when it emerged, only the

prosecution were aware of their intention to rely on it in seeking a reversal of the ruling.

98. Furthermore, each submit that the application to re-visit the ruling is an abuse of process

and based on a mischaracterisation of the evidence by the trial judge. In this respect, it is

submitted that the judge mischaracterised the evidence of Garda Young as Garda Young

only referred to himself when he stated that he believed he would have joined the search

team in the absence of the appellants. The appellants submit that there is no basis for

this belief being extended to both Gardaí and therefore no grounds for the judge to re-

visit his ruling.

99. It is also submitted that the appellants’ right to fair procedures was breached and

occasioned real prejudice to them. It is submitted that in the initial voir dire, once it

became apparent that there was a strong argument to be made that the arresting Gardaí

were present in the dwelling as trespassers, it was unnecessary to widen the scope of the

cross-examination to consider whether members of the ERU who had also entered the

property were trespassers or had acted unlawfully.

100. Moreover, the appellants submit that Collins can be distinguished from the present case

as Collins concerned an unfairness to the prosecution as a result of time constraints which

the trial judge sought to remedy. The appellants submit that no such circumstances of

constraint arose here and the ruling here was grounded on unfair and inappropriate use of

the content of a subsequent voir dire related to a different issue. In substance, it is

submitted that the respondent wished to make a submission which had not been made on

the initial voir dire and that no fresh evidence had in fact emerged.

Submissions of the respondent

101. The respondent submits that the appellants received proper notice of the fact that counsel

for the DPP would seek to reopen the issue of the lawfulness of the arrests and counsel

for the appellants were informed of the fact that Collins would be relied upon as authority

for the proposition and had copies of Collins with them when the case was recommenced;

therefore counsel was given ample time to consider and address the issue. It is further

submitted that the trial judge was correct in relying on Collins and the evidence in this

regard was relevant and probative to the issue in question and the appellants herein had

a full opportunity to cross-examine the relevant Gardaí again in relation to any matters

that they considered relevant.

Page 25 ⇓

102. The respondent argues that it is not unfair or offensive to the principle that trials must be

conducted in accordance with law or contrary to fair procedure that the prosecution was

permitted on the basis of newly adduced evidence to attempt to convince the Court to

revisit its earlier ruling. The respondent submits that there was no basis for considering

that the evidence was invented or concocted, it was relevant to the arrest issue and it

would have been a grave injustice to the prosecution not to allow the matter to be re-

litigated.

103. It is submitted that the trial judge was correct in finding that the arrest was valid on the

basis of the evidence given by the Gardaí at the second stage of the voir dire.

Discussion

104. Proceedings leading to this aspect of the ground of appeal evolved over a period of two

days. As can be seen from the above summary of events, once the defence indicated a

challenge to the legality of the appellants’ arrests, the respondent in the usual way,

bearing the onus of proof, called evidence.

105. We will firstly address the pertinent aspects of Garda McGlinchey’s evidence. When Garda

McGlinchey was first called by the respondent, he stated, inter alia, that on the relevant

date of entry to the appellants’ dwelling house, he was part of the investigation team

which was involved in the investigation of the aggravated burglary of the 31st May 2012.

He went on to say that when he gained access to the house, he arrested Patrick Roche

pursuant to the provisions of section 4 (3) of the Criminal Law Act 1997. That in effect,

concluded Garda McGlinchey’s evidence. No issue arose regarding the manner of arrest,

rather the issue lies with the legality of Garda McGlinchey’s presence in the house.

106. As can be seen at the conclusion of the voir dire, the trial judge found that the search

warrant was lawful but that the presence of the Gardaí for the purpose of arrest was not

lawful.

107. As we have outlined, there then followed an application on the part of the respondent

seeking to rely upon the decision of The People (DPP) v. JC [2015] IESC 31. To lay the

evidential foundation for this application, the prosecution recalled Garda McGlinchey. On

this occasion, McGlinchey, in cross examination stated as follows: –

“A. So that’s the power of section 6 you’re talking about, is it?

Q. Yes?

A. Yes, okay.

Q. And you didn’t utilise that power?

A. no.

Q. why is that?

Page 26 ⇓

A. well, I was there – I was – Sergeant Riordan had executed the warrant and I

followed Sergeant Riordan and then I arrested the defendant, Patrick Roche.

Q. But you were part of the search team?

A. Well, I was part of the overall investigation team. The search team was one part

of it; the specialist unit were another part of that particular morning. I was part of

the people that were there to do the arrests. You know, there’s various different

teams, part of the investigation team.”

At a later stage in his evidence he replied to a question as follows: –

“A. When the warrant – my brief was when the warrant was executed and if Patrick

Roche was present in the house, that I was to come in and to arrest Patrick Roche.”

One re-examination, the witness stated that he understood that Patrick Roche and his

family ordinarily resided at the address in question.

108. The conclusion of Garda McGlinchey’s evidence having been recalled, Mr Costelloe SC

immediately indicated to the trial judge, that his intention was to raise a matter

unconnected to his proposed application pursuant to the principles in The People (DPP) v.

JC [2015] IESC 31.

109. We now look to the evidence of Garda Young. When first called on the issue, Garda Young

outlined the sequence of events in which the search warrant was executed and stated

that he followed in after Sergeant Riordan and when he went into the house, he arrested

Philip Roche pursuant to section 4 (3) of the Criminal Law Act 1997. Again, no issue is

taken with the legality of the arrest itself. Garda Young clearly stated that his role was

that of arrest.

When he was called, following the trial judge’s ruling, he stated as follows: –

“A. Section 10. Judge, so far as I was concerned, my object if Philip Roche was

present in the premises, Judge, I was to arrest Philip Roche under section 4(3)

under the Criminal Law Act. That was my power of arrest, Judge.

Q. All right. I know that's what you purported to

A. And I entered the premises.

but were you aware that under section 10 that your presence there would be in

furtherance of a search rather than for the purpose of arrest?

A. Judge, if the members if, I presume, Judge, if my my thing is, Judge, if the two

men hadn't been in the house on the day, I would have been a member of the

search team, Judge..”

During re-examination he said: –

Page 27 ⇓

“A. Yes, Judge, we all had – we were all part of the briefing, we all had the same

information, Judge.”

110. Counsel for the respondent then made an unusual application to the trial judge asking the

judge to revisit the ultimate consequence of his ruling that the arrest was unlawful in

circumstances where he had now heard evidence that the Gardaí were present in the

knowledge that both of the appellants ordinarily resided at that address and the

prosecution sought rely upon the provisions of section 6 (2) (d) of the 1997 Act.

111. This was strenuously opposed on behalf of the appellants who not only objected in

principle but also objected on the grounds that they were taken by surprise by the

application and needed to consider the position. The trial judge acceded to this application

without any prevarication and the matter stood adjourned from Friday to the following

Tuesday.

112. It seems that the appellants’ submission on the procedural aspect of matters is twofold.

Firstly, revisiting the ruling was contrary to fair procedures and in breach of the

appellants’ constitutional right to a fair trial. Secondly, that there was no evidential basis

to revisit the ruling.

Can a ruling on admissibility be reversed?

113. In this respect, the respondent relies upon the decision in The People (DPP) v. Collins

[2011] IECCA 64, where the Court found that the determination of inadmissibility

following a voir dire is not irreversible. In that case, the Court was satisfied the trial

judge could subsequently revisit a ruling made following a voir dire. This obviously

depends upon the circumstances in any given case. The appellants argue that the

circumstances which could give rise to a reversal of the ruling simply were not present on

the facts of this case. They say that the respondent, having failed to make the submission

on the conclusion of the evidence on the voir dire regarding the legality of the arrest,

sought to do so on the evidence of the Gardaí recalled. The argument being that it was

open to the respondent to make the same submission on the evidence at the conclusion

of the initial voir dire.

114. In our view, a court can reverse the ruling on admissibility, however, much will depend

upon the circumstances and it is not a decision which should be taken lightly. Article 38 of

the Constitution guarantees that a person shall be tried in due course of law. Due process

demands certain safeguards. In State (Healy) v. Donoghue [1976] 1 I.R. 325, O’Higgins

C.J. said: –

“The concept of justice, which is specifically referred to in the preamble in relation

to the freedom and dignity of the individual, appears again in the provisions of

Article 34 which deal with the Courts. It is justice which is to be administered in the

Courts and this concept of justice must import not only fairness, and fair

procedures, but also regard to the dignity of the individual…

Page 28 ⇓

The words ‘due course of law’ in Article 38 make it mandatory that every criminal

trial shall be conducted in accordance with the concept of justice, that the

procedures applied shall be fair, and that the person accused will be afforded every

opportunity to defend himself.”

The present case

115. It is quite clear from the evidence given by Garda McGlinchey and Garda Young when

they first gave evidence on the issue, that they were present in the knowledge that

Sergeant Riordan was in possession of a search warrant to search the home of the

appellants. Each was clearly tasked with the arrest of the respective appellants. Indeed,

Garda Young indicates that that was his role.

116. Each witness, when recalled, reiterated they were tasked with the arrest of the appellants

with Garda McGlinchey indicating that if Patrick Roche was present in the house, he was

to arrest him and that he understood that Patrick Roche and his family ordinarily resided

at the address in question. Garda Young for his part indicated that if the two men had not

been present on that day, he assumed he would be part of the search team. He also

confirmed that the Gardaí were all part of the briefing and had the same information.

Conclusion

117. It appears to us that the information given when the Gardaí were recalled did not differ to

any significant degree from the evidence which was initially given by them in the voir

dire. While they reiterated that they were there for the purpose of arrest, this was evident

from their evidence initially. The evidence was amplified to include that Garda McGlinchey

was aware that the men ordinarily resided at the address in question and Garda Young

stated that if the men were not present, he assumed he would have been part of the

search team.

118. Garda McGlinchey stated in his initial testimony that he was part of the investigation team

and Garda Young so stated when he was recalled.

119. It seems to us that the crux of this matter is whether the trial judge was entitled to

review his previous decision on foot of the amplified evidence and amplified submissions.

In that regard, the following circumstances are relevant: The appellants were not denied

their right to cross-examine the Gardaí for a second occasion. Nor are we satisfied that

the appellants were taken by surprise. Mr Costelloe flagged that he intended to raise an

entirely separate issue with the trial judge from the moment the evidence of Garda

McGlinchey concluded after he was recalled. Once the evidence of Garda Young

concluded, Mr Costelloe raised the issue, the appellants sought time to consider the

unusual nature of the application being made and the trial judge adjourned the matter

from Friday to the following Tuesday. There can be no question but that ample time was

afforded to the appellants to consider the application and to respond. Indeed, this is

evident by virtue of an examination of the transcript where fulsome submissions were

made in response to the application. These events took place on the same day and the

appellants’ legal teams were afforded the opportunity to consider the evidence and to

respond accordingly. The trial did not proceed in any meaningful way until the issue was

Page 29 ⇓

resolved, no evidence was adduced before the jury in the intervening period and finally,

the issue itself was not a complex one.

120. In those particular circumstances, the appellants’ right to a fair trial was not breached and

the trial judge ensured that no prejudice was caused to them arising from the unusual

application on the part of the respondent. This type of application should seldom be

entertained, but the interests of justice demanded that the judge revisit his ruling in the

instant case.

121. Accordingly, we are satisfied that the trial judge did not err in deciding to revisit his

ruling. However, there must be finality in the court process and this class of application

should be very rare indeed. It is fundamental that parties should ensure to marshal the

evidence and submissions. It is imperative, that all parties do so, but particularly the

party bearing the onus of proof.

The Lawfulness of the Arrests

Submissions of the Appellants

122. In substance, the appellants advance the argument that while there may have been a

dual purpose in the sense that some Gardaí entered the house to search and some to

arrest, the Gardaí who effected the arrests were not present to fulfil both functions.

123. It is contended that the trial judge mischaracterised Garda Young’s evidence as being

evidence that both arresting members were part of the overall search team and hence,

there was a dual purpose to their presence in the dwelling. In any event it is argued that

no fresh evidence emerged when the Gardaí were recalled.

124. Finally, it is submitted that it was open to the Gardaí to invoke a power of entry on arrival

at the house and they did not do so. That it was incumbent on them to indicate that the

intention on entering the house was to both search and arrest. The appellants also rely on

The People (DPP) v. Laide & Ryan [2005] 1 IR 209.

Submissions of the respondent

125. The respondent submits that the evidence disclosed that the Gardaí in attendance at the

appellants’ home did so on foot of a briefing regarding the investigation of the aggravated

burglary at the Creed home on the 31st May 2012. Therefore, those present were aware

that a warrant to search the appellants’ home had been obtained and the warrant was to

be executed on the 18th October 2012. It is further submitted that the transcript of

evidence makes it clear that while there were assigned roles, collectively all present were

part of the investigation team.

126. The respondent relies on The People (DPP) v. Laide & Ryan [2005] 1 IR 209, and argues

that the factual position differs in the present case. In the former, the Gardaí entered the

dwelling house on foot of a search warrant which was subsequently deemed invalid. This

finding removed the foundation on which entry had been effected. No evidence was

adduced which indicated an intention to do anything other than carry out a search of the

Page 30 ⇓

house. The Court in that case found that as the Gardaí had failed to inform the occupiers

of the dwelling that they intended to arrest the accused, s.6(2) could not be relied upon.

127. It is contended in the present case that there was evidence that the Gardaí in attendance

were carrying out a lawful search pursuant to warrant in conjunction with the arrest of the

appellants, if they were present. It is submitted that the presence of the Gardaí was

legally permissible and that the trial judge was correct in ruling that, in light of the

decision in Laide & Ryan, he should set aside his earlier ruling and deem the arrests

lawful.

Discussion

128. Article 40.5 of the Constitution provides that: –

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in

accordance with law”.

129. The onus of establishing beyond a reasonable doubt that the entry to a dwelling was

lawful rests with the respondent. In order to lawfully enter the appellant’s home, the

Gardaí relied upon the search warrant granted by the District Court. The trial judge

upheld the validity of this search warrant. Therefore, the basis of entry to the dwelling

house was lawful per se. However, the simple argument advanced by the appellants is

that while the warrant authorised the Gardaí to enter for the purpose of search, it did not

authorise the Gardaí to enter solely for the purpose of arrest. In lieu of relying entirely on

the warrant, it is argued that the Gardaí ought to have explained the basis of entry as

being for the purpose of search and arrest. Thus, the appellants say that at the time each

was arrested by the Gardaí, the Gardaí were trespassers in the Roche house as there was

no lawful basis for their presence in the house.

130. Garda McGlinchey and Garda Young gave evidence that each had attended the briefing

regarding the investigation of the aggravated burglary at the Creed house and it is clear

from the evidence that the Gardaí entered the Roche house after the warrant was

executed by Sergeant Riordan. It is also evident that Garda McGlinchey and Garda Young

were tasked with arresting Patrick and Philip Roche. The legality of the arrest of each of

the appellants pursuant to section 4 (3) of the Criminal Law Act 1997 was not in question.

There can be no doubt that a team of Gardaí went to the appellants’ home on the date in

question in furtherance of the investigation of the aggravated burglary.

131. A power of arrest is provided pursuant to section 6 (2) of the 1997 Act: –

“For the purpose of arresting a person without a warrant for an arrestable offence,

a member of the Garda Síochána may enter, (if need be, by the use of reasonable

force), and search any premises (including a dwelling) where the person is already

a member, with reasonable cause, suspects that person to be, and where the

premises is a dwelling member shall not, unless acting with the consent of an

occupier of the dwelling, or other person who appears to the member to be in

charge of the dwelling, entry dwelling unless –

Page 31 ⇓

(a) (d) the person ordinarily resides at the dwelling.”

132. Section 6 gives the Gardaí the power to enter a dwelling in certain circumstances to effect

the arrest of an individual without a warrant. This is a significant encroachment on an

individual’s constitutional rights. If a member of An Garda Síochána comes to an

individual’s dwelling without a warrant and with the intention to arrest a person who

resides there, an explanation must be given as to the purpose of seeking entry to enable

the occupier to permit or refuse entry. If entry is refused, in reliance on the section, the

Garda may enter and use reasonable force to do so, if necessary.

Conclusion

133. In the instant case, the team of Gardaí had gained lawful entry to the dwelling on foot of

the valid search warrant. Certain Gardaí were tasked with searching the dwelling and the

evidence given at trial by Garda McGlinchey and Garda Young indicated a clear and stated

intention on their part to arrest the appellants. As was indicated by Garda Young; that

was his role. He amplified his evidence when he was recalled by saying that if the men

were not present, he would have assumed that he would have been part of the search

team. This does not take away from the fact that his and Garda McGlinchey’s primary role

was that of arrest.

134. The facts of this case can be distinguished from the facts which applied in The People

(DPP) v. Laide & Ryan [2005] 1 IR 209. In that case, the search warrant, being the

foundation for the entry to the dwelling, was found to be unlawful. Therefore, unless the

Gardaí were in a position to rely on an alternative lawful power of entry, they were

trespassers on the dwelling and any consequential activities on their part from which

evidence was gathered was deemed inadmissible under the law as it then was. There was

no evidence in that case of any intention on the part of the Gardaí who attended the

dwelling that they were there to do anything other than execute the search warrant.

There was no evidence that the Gardaí had a dual purpose in entering the dwelling,

namely; to search but also to effect arrest.

135. In the present case, the clear and unequivocal evidence of the Gardaí who effected the

arrests was of their stated intention to do so. Entry had been lawfully gained by virtue of

the search warrant. It is not the position that entry was gained only for the purpose of

search. The point is made on behalf of the appellants that the Gardaí ought to have

explained, on gaining entry to the dwelling that their intention in so doing, was not only

to search but also to arrest.

136. Such a contention is a rather artificial one on the facts of this case in our view. In the

particular circumstances of The People (DPP) v. Laide & Ryan [2005] 1 IR 209, where the

search warrant was found to be invalid; as the Gardaí had failed to inform the occupiers

on seeking to gain entry to the house of a dual purpose in entering the house, no lawful

basis remained for their presence in the dwelling. As stated: –

“It follows that in the particular circumstances of the present case the least that

would have been required to have been done for the members of the Garda

Page 32 ⇓

Síochána is to have informed the parents that they wished to gain entry for the

purpose of search and arrest, if the lawfulness of their presence in the house was

not to be removed upon the subsequent finding that the search warrant was bad”.

137. Therefore, whilst it would certainly be prudent in any given case where the Gardaí rely on

a search warrant to gain entry, but have a dual purpose in gaining entry, that being; not

only to search but also to arrest, such should be stated at the point of entry. As stated in

The People (DPP) v. Laide & Ryan [2005] 1 IR 209 at p.230: -

“The fact that the power of entry exists does not mean, in the view of this court,

that the purpose of entry, namely the arrest of somebody who resides in the house,

does not have to be explained before entry is forced on foot of the power. The

inviolability of a citizen's dwelling is an important constitutional right and it cannot

be trespassed upon without explanation in clear and unambiguous terms. It has

been recognised that where the restriction of a constitutional right is permitted by

law, it must be restricted to the least extent necessary for the achievement of the

desired objective”.(Our emphasis).

138. But, in the circumstances of the present case, entry to the dwelling was gained on foot of

a valid search warrant. That was the basis on which entry was sought, not on the basis of

section 6 of the 1997 Act. Therefore, in strict terms, it was not essential for the Gardaí to

indicate that their purpose in entering the residence was not just for the purpose of

search but was also for the purpose of arrest. Invocation of section 6 is required where

that is the sole provision upon which entry is sought to a dwelling. A prudent member of

An Garda Síochána might well explain there is a dual purpose of entry, if that is so,

notwithstanding his/her belief that he/she holds a valid search warrant, in the event of a

subsequent invalidation of a search warrant which would remove the very foundation of

lawful entry to a dwelling.

139. In the present circumstances, the presence of the Gardaí on the premises was lawful on

foot of the search warrant and consequently it follows that the arrests were lawful.

However, if their presence on the premises had not been in accordance with law; that is if

the search warrant had been deemed to be invalid, then applying the dicta in The People

(DPP) v. Laide & Ryan [2005] 1 IR 209, their presence in the dwelling would have been

unlawful due to the failure to specifically explain to the occupiers that the Gardaí had

another purpose apart from the search of the premises.

140. For the reasons stated these grounds fail.

The Judge’s Charge

Grounds 2 & 3 of Alan Freeman; Ground 10 Philip Roche and Ground 15 Patrick Roche.

Grounds 2 & 3 - Alan Freeman;

2. The learned trial judge erred in law and in fact in charging the jury on the meaning and

application of corroboration evidence to accomplice witnesses such that the jury were

informed that there was corroboration when in law and in fact none such corroboration

evidence existed.

Page 33 ⇓

3. The learned trial judge erred in law and in fact in failing to accede to an application by

counsel on behalf of the above-named appellant to discharge the jury arising from the

learned trial judge’s failure to properly charge the jury in respect of corroboration

evidence.

Ground 10 – Philip Roche and Ground 15 - Patrick Roche

15/10 -The learned trial judge erred in law by failing to accede to the appellant's

application to discharge the jury following the judge's charge having regard to severe and

irreparable prejudice caused by the said charge and having regard to the inadequate way

the learned trial judge had addressed issues such as inferences and corroboration of

accomplice evidence.

Corroboration

141. These grounds concern the manner in which the trial judge charged the jury on

corroboration. Each appellant contends that the judge misdirected the jury on the

meaning of corroboration and in particular misdirected the jury in the context of

accomplice evidence. Moreover, insofar as each appellant is concerned; Alan Freeman

complains that the judge mis-identified evidence as being capable of corroborating the

accomplice evidence and Patrick and Philip Roche contend that the judge not only erred in

directing the jury in terms of corroboration but also prejudiced the appellants in the mind

of the jury by his charge. While both contend that this arose in terms of the manner in

which the judge addressed corroboration and inferences, the inferences only have

application to Patrick Roche. The three appellants argue that the trial judge erred in

failing to discharge the jury as a consequence of his charge.

The Charge

142. At common law a trial judge is mandated to warn the jury of the dangers of convicting an

individual on the uncorroborated evidence of an accomplice; that is, on the testimony of a

person who was actually involved in the commission of the offence charged.

143. In the present case the judge charged the jury on the issue of accomplice evidence,

directing the jury in the following terms:-

“What is corroboration? You're going to hear reference to it at a later stage. It's

independent evidence which tends to show that the principal evidence is true.

That’s it in its simplest format”.

144. The judge then went on to give examples of corroboration in the ordinary course of life

and having done so, advised the jury on the legal concept of corroboration: -

“But hopefully you understand what I mean when I say "corroboration". So, it's a

very simple concept in a lot of ways. So, the ingredients are that he corroborative

evidence should be independent and it should, in a criminal context, tend to

implicate the accused person in the commission of the crime with which he is

charged. So, it's important that you have a good understanding of this concept

because, in this case, there are two witnesses who are of importance in the case,

Page 34 ⇓

Mr Cahill and Mr Gammell, and they were accomplices, they were the getaway

drivers in relation to each of these matters.”

Having explained the meaning of corroboration to the jury, the trial judge then proceeded

to instruct the jury specifically on the issue of corroboration vis-à-vis accomplice

evidence. He said: –

“ As a matter of law, I must warn you that it is dangerous to convict an accused

person on the uncorroborated evidence of a person who was involved in the

commission of an offence. In this case, these two men were getaway drivers in

relation to the Creed and Garvey robberies. You are entitled to convict on the

uncorroborated evidence of an accomplice but, if you do so, you must bear in mind

that there are dangers and you must bear in mind the warning which I'm going to

give you. Both Mr Cahill and Mr Gammell were accomplices and, while both have

already been convicted following guilty pleas and both have been sentenced,

nonetheless, you must look carefully to see whether or not you believe that they

have anything to gain from giving the evidence which they have given. You've

heard their evidence in this respect and you've heard the different theories

advanced by the defendants, ranging from jealousy to the deflection of attention

from the real perpetrators of the crime. If you attach any credence to all or any of

these theories, or if you are in any way suspicious of the motivations of these

gentlemen, you must treat their evidence with suspicion. It is a matter for you to

attach the appropriate weight, as you see fit, to the evidence. The object of

corroboration in dealing with the evidence of an accomplice is to indicate to you

that although a particular witness may be believed, experience in courts has shown

that it is unsafe to act on the evidence of an accomplice alone, unless there is

corroboration. Accordingly, you should look to see if there is corroboration by

evidence independent of the evidence given by Mr Cahill and Mr Gammell.

However, if, having considered all that I have said and heeded my warnings to you,

you still believe that you can convict on the basis of the accomplices' evidence

alone, you are entitled to do so. You might want to look at the corroborating

evidence first, see what weight you attach to it and then consider the accomplices'

evidence. Then, consider the evidence given by the accomplices in light of

whatever corroboration they accept; do they accept the evidence of the accomplice,

so as to be satisfied beyond reasonable doubt as to his account implicating the

accused? I will identify some of the evidence which is capable of amounting to

corroboration of Mr Cahill and Mr Gammell's evidence, but it would be a matter for

you, members of the jury, as fact finders, to decide if that evidence actually

amounts to corroboration. It's not my job to decide; it's my job to tell you if it's

capable of amounting to corroboration. It will be your job to decide whether, in

actual fact, it does corroborate Mr Cahill and Mr Gammell's evidence. In this

respect, I will now say a few words about the evidence which you're entitled to

consider, and that brings me now to the area of inferences. So, when I read out

the evidence later on to you, I will identify various portions that are capable of

providing corroboration in respect of the Cahill and Gammell testimonies..”

Page 35 ⇓

145. The trial judge summarised the evidence, including that of Mr Gammell and Mr Cahill and

in so doing identified a number of pieces of evidence which were, as a matter of law,

capable of amounting to corroboration. Counsel for Patrick and Philip Roche took issue

with several of the examples identified by the trial judge and made an application to

discharge the jury on this basis. Counsel for Mr Freeman also took issue with the judge’s

charge, in particular in the judge identifying evidence as capable of corroborating the

accomplice witness; John Cahill. All three asked the judge to discharge the jury as a

consequence. The trial judge refused this application.

146. Prior to commencing his summary of Mr Gammell’s testimony, the trial judge again

repeated the warning he had given to the jury and said: –

“We now come to the evidence of Mr William Gammell, who is an accomplice in the

Creed robbery. You will remember, members of the jury, the warning that I have

given you earlier this morning in relation to this evidence and the evidence of Mr

Cahill”.

The judge then proceeded to summarise the evidence given by the accomplices, Mr

Gammell and Mr Cahill.

147. Several of the remarks in the judge’s charge with which counsel for the appellants took

issue relate to the evidence of the accomplice John Cahill. In particular insofar as Alan

Freeman is concerned, the trial judge said as follows:-

“After a few minutes, he said that the lads came out and got into the car; Alan

Freeman, Stokes, Patrick Roche and Philip Roche. He said that Alan Freeman had a

screwdriver, Stokes had a baseball bat and Patrick Roche had a gun. He describes

himself as a driver. He described Alan Freeman as a passenger. Stokes was sitting

beside Philip Roche who was in the middle and Pat Roche was on the other side. He

was told to go back to Cullen. He said he saw Alan Freeman pull out an envelope

with Sterling and other foreign money in it. You remember that Mr Gerard Garvey

gave evidence that he placed the money that was stolen from him – and Anne

Garvey also said this – into a white envelope, and this evidence corroborates the

evidence given by the Garveys in relation – four, this evidence is capable of

corroborating the evidence given by the Garveys in relation to the money in the

envelope.”

The judge then continued with the evidence of Mr and Mrs Garvey and then said the

following: –

“Members of the jury, it is, of course, a matter for you to decide whether or not to

accept or reject the evidence that Mr Cahill has given you in respect of these

matters up to this point, and it is entirely a matter for you. And I’ve already spoken

to you in relation to the risks associated with evidence stemming from somebody

who, as a matter of fact, was an accomplice and very much involved in the Garvey

Page 36 ⇓

robbery, but I thought it might be useful at this point to draw your attention to

those matters so as you can see what the links are.”

148. The trial judge in continuing with his summary of Mr Cahill’s evidence summarised the

movements of the vehicles and in particular that Alan Freeman, Patrick Roche and Mr

Stokes got into the BMW with an 08 registration and that Philip Roche remained in the

blue BMW and drove in the direction of Buttevant, and at some point Alan Freeman got

out of that vehicle and drove away in another vehicle leaving Patrick Roche and Mr Stokes

in the 08 BMW which was stopped by the Gardaí. The judge then said: –

“All of that evidence in relation to the changing of the cars and the driving from

somewhere outside Mitchelstown to Buttevant, and everything that is associated

with it, is evidence which is capable of corroborating John Cahill's testimony in

relation to this matter. It is a matter for you as to whether or not you accept that

and whether you accept that as corroboration.”

149. When the trial judge was dealing with Mr Freeman’s case and having exhorted the jury to

consider all the evidence and to carefully read the memoranda of interview, he proceeded

to remind the jury that Mr Freeman was charged only in respect of the Garvey robbery

and that only the evidence pertaining thereto was relevant in respect of his charges. The

judge then told the jury as follows: –

“Members of the jury, though it is a matter for yourselves, it seems to me that you

are particularly reliant on the evidence of John Cahill when it comes to Mr Freeman.

Whilst Mr Cahill remained in the company of Philip Roche and Patrick Roche --

whilst Mr Cahill remained in the company of Philip Roche and Patrick Roche -- I'll

start again. Whilst Mr Cahill remained in the company of Philip Roche and Patrick

Roche remained in the company of Christopher Stokes - this is after the incident

when they're changing cars - Mr Freeman headed off in his own car or headed off in

another car, after having been dropped off at a location by John Cahill. The foreign

currency in the envelope, which Mr Cahill says Mr Freeman found in the car during

the getaway from the Garveys, is capable of corroborating Mr and Mrs Garvey's

testimony in relation to the money stolen, but that does not corroborate Mr Cahill's

evidence that Mr Freeman was there. It seems to me that you are reliant greatly

on Mr Cahill's testimony in respect of Mr Freeman's involvement in this matter and I

have already warned you in relation to accomplice evidence. That said, however,

as I have said to you, you are entitled to convict on the evidence of an accomplice,

as long as you have carefully considered the dangers that I have outlined to you in

respect thereof.”

150. On the conclusion of the judge’s charge, counsel on behalf of each appellant applied for

the jury to be discharged and raised requisitions in respect of the charge. The application

to discharge the jury was made on the basis that the trial judge misstated the evidence

which could corroboration the accomplices’ testimony in the case of Mr Freeman. In the

case of Patrick Roche and Philip Roche, it was contended that the trial judge’s charge

severely prejudiced the appellants in general terms and also in terms of the manner in

Page 37 ⇓

which he addressed the accomplice testimony and inferences. The application to

discharge the jury was refused and the trial judge re-charged the jury on corroboration in

the following terms.

The Re-Charge

“I want to speak to you about corroboration in the context of evidence given by

accomplices in the first instance. Remember, accomplices are people who by their

own admission, were present at a crime. They are part of -- they see part of, or

they see all of what happened at a crime. For this reason, they have information

about the crime which, by and large, is correct, clearly, they'd been there. The big

question for you, members of the jury, is not whether they're telling the truth about

what they saw, but whether they're telling the truth about who was with them. It

is for this reason that I gave you the warning about the danger of convicting in the

absence of evidence which corroborates the story of an accomplice. So, whilst you

can convict on the basis of accomplice evidence alone, I warned you that you

should find some evidence which is capable of independently supporting the

evidence which those accomplice witnesses give. And that evidence would be such

as to tie or link the accused person to the commission of a crime. So, if I caused

you to be confused about all of this in my charge, I apologise, and I will now try to

give you some clarity. So, some of the evidence which you have heard from

William Gammell and Mr Cahill is capable of corroborating matters in respect of

which other people have given evidence, but these bits of evidence do not or are

not capable of corroborating Gammell's and Cahill's evidence against the accused.

These bits of evidence remain perfectly valid, they just can't corroborate what

Gammell and Cahill have said. But as I said to you, they remain perfectly valid.

They remain important pieces of evidence, which you can, if you see fit, consider as

part of your deliberations. And those pieces of evidence that I'm referring to are by

and large examples of circumstantial evidence about which I have spoken to you

earlier and other people have spoken to you earlier. So, things like the burnt-out

BMW, the tyre marks, the finger from the glove, the balaclava that, or the

balaclavas that Mr Gammell and Mr Cahill say that they saw the accused wearing,

and any other references to balaclavas, other than in the '06 BMW outside of Cork,

I'll come to that shortly. When they say they saw handcuffs, weapons, cable ties,

that sort of thing. When they say they saw Alan Freeman counting money; all of

these things are capable of corroborating other people's evidence, but they're not

capable of corroborating the evidence of the two accomplices, that is William

Gammell and John Cahill. So, what evidence then is there open to you which is

capable of corroborating John Cahill's evidence? Well, the following; the glass

shards found on Pat Roche's clothing are capable of amounting to corroboration of

Patrick Roche's involvement in the Garvey robbery, capable of doing that, but it is

up to you to decide on the weight of that evidence and the importance to which you

attach that evidence, as to whether or not you find that evidence to be

corroborative. So, that evidence is capable of corroborating elements of Mr Cahill's

evidence, but it's up to you to decide whether or not it does so.

Page 38 ⇓

The second area where we have evidence that is capable of corroborating Mr

Cahill's evidence in relation to the Garvey robbery, is the discovery of the handcuff,

money, one balaclava, one ski mask and the screwdriver in the '08 BMW, this is the

one on the Doneraile Road, outside of Buttevant, in which Mr Stokes and Pat Roche

were travelling. You'll remember that that was the one that was stopped by the

guards. So, the items that were found in that car, together with the time at which

they were stopped, those matters are capable of providing corroboration in relation

to Mr Cahill's evidence, as against Pat Roche in respect of the Garvey robbery. I

turn now to Mr Gammell, what evidence can you consider in relation to

corroborating his testimony? The DNA evidence which was extracted from the

samples that were taken from the balaclava and the glove and they were both in

the Dunnes Store bag, which were allegedly dropped or hidden by Mr Gammell,

after having been instructed to set fire to them, you remember that evidence, and

this is after the Creed robbery. The samples that were extracted from those two

items, were in the words of the scientist from the Forensic Ireland laboratory, they

matched the DNA profiles that were extracted from swabs taken from Patrick and

Philip Roche, and that evidence is capable of corroborating William Gammell's

evidence in relation to Patrick and Philip Roche's involvement in the Creed robbery.

Now, that deals with the corroboration side of things.”

Submissions of Alan Freeman

151. The appellant submits that the judge’s charge was confusing and unfair to the appellant

and says that while discussing Mr Cahill’s evidence, the judge drew attention to his

assertion that the appellant had contact with an envelope containing foreign currency.

The judge advised the jury that Mr Cahill’s evidence was capable of corroborating the

evidence given by the Garveys in this respect. Issue is taken with the following:-

“She got the key, open the safe, gave them the envelope with the US dollars and

Sterling. Members of the jury, it is, of course, a matter for you to decide whether to

accept or reject the evidence of Mr Cahill has given you in respect of these matters

up to this point, and it is entirely a matter for you.”

152. It is accepted on behalf of the appellant that at a later stage in his charge the trial judge

instructed the jury that the evidence of Mr Cahill concerning foreign currency was capable

of corroborating the Garvey evidence but was not capable of corroborating the accomplice

testimony. Nonetheless, it is contended that as the trial judge’s comments came about in

the course of his summary of Mr Cahill’s testimony, the jury were left in a state of

confusion.

153. It is submitted that the suggestion that Mr Cahill’s evidence was somehow corroborated

by Mrs Garvey’s testimony concerning the envelope in some way bolstered the evidence

of the accomplice was incorrect and unfair to the appellant. The application was made to

discharge the jury and it was refused.

154. The appellant argues that the trial judge’s recharge of the jury on this issue did not clarify

the issue as he re-iterated the evidence which was not capable of corroboration and

Page 39 ⇓

acknowledged that they were still “important pieces of evidence” capable of corroborating

the evidence of other witnesses.

155. In short, the appellant submits that the trial judge failed to make clear to the jury that

there was no corroboration of John Cahill’s evidence insofar as he implicated Alan

Freeman.

Submissions of Patrick Roche/ Philip Roche – Grounds 10 and 15

156. The appellants submit that the trial judge did not correctly address the issue of

corroboration or identify correctly pieces of evidence capable in law of corroborating the

testimony of the accomplices. Moreover, it is contended that the trial judge displayed a

partiality for the prosecution throughout his charge to the jury, as shown by his

comments on the accomplice evidence of Mr Cahill and Mr Gammell. In this regard, the

bulk of the submissions relate to Patrick Roche as the majority of the corroboration

evidence highlighted by the trial judge relates to him apart from the DNA evidence in

relation to the woollen glove which concerned Philip Roche.

157. It is contended on behalf of Patrick Roche that the trial judge erred in treating every

independently verifiable detail of the events as recounted by Mr Cahill and Mr Gammell,

as capable of corroborating their evidence.

158. It is accepted that the trial judge sought to correct his comments following an application

to discharge the jury and requisitions, but it is submitted that the errors were so serious

that such were likely to skew the jury’s assessment of each item which was referred to as

being potentially corroborative.

Submissions of the respondent

159. The respondent submits that on the issue of corroboration, all of the appellants have

incorrectly identified the law on corroboration as the immutable formalistic rule set out in

R v. Baskerville [1916] 2 KB 658 when in fact the Irish courts have demonstrated

repeatedly that corroboration is a flexible concept. The respondent points to The People

(DPP) v. Gilligan [2006] 1 IR 107 where Denham J. concluded that circumstantial

evidence can be corroborative evidence and endorsed the following definition of

corroboration:-

“Independent evidence of material circumstances tending to implicate the accused

in the commission of the crime with which he was charged”

160. Regarding the submissions of Alan Freeman, the respondent refutes the assertion that

there was no corroborative evidence in relation to the accomplice evidence of John Cahill.

The respondent submits that the evidence of the Garveys, of a white envelope filled with

foreign money being handed over to the raiders, was capable of corroborating a material

particular of the account of Mr Cahill that he saw Alan Freeman counting money from a

white envelope. The respondent submits that The People (DPP) v. Meehan [2006] 3 IR

468 and The People (DPP) v. Gilligan [2006] 1 IR 107, both concerned with accomplice

evidence, establish that direct evidence is not necessary for corroboration, the evidence

Page 40 ⇓

must simply show or tend to show a link. In any event, the respondent submits that if the

trial judge erred in law in his recharge to the jury, it was in favour of the appellant.

161. In relation to Patrick and Philip Roche, the trial judge identified evidence capable of

corroborating the accomplice evidence of John Cahill and William Gammell:-

“You've heard the evidence given by both the Creeds and the Garveys that the

people involved in the robberies were wearing balaclavas and you also heard that

gloves were worn. This evidence is capable of corroborating that testimony, but

make sure that any conclusions you draw in respect thereof are logical. This

evidence is highly suggestive that a glove and balaclava, which came from inside of

the Dunnes Stores bag, were, at some stage, worn by Patrick Roche and Philip

Roche. You should then consider all of the evidence and satisfy yourself in relation

to the circumstances by which the Dunnes Stores bag came to be at that location

with those items in it. You've heard the evidence in that respect from Mr Gammell,

who said that after he collected Patrick and Philip Roche from the Creed house, they

took their clothes off and put them in a Dunnes bag. He was told to burn the

clothes bag, but he later hid the bag.”

The trial judge went on to say:-

“In relation to Mr Cahill, he gave a statement -- and I've warned you that it is

dangerous to convict somebody on the basis of an accomplice statement alone, and

I've just told you as well that you're perfectly entitled to consider all of the other

evidence in isolation to the evidence given by both Mr Cahill and Mr Gammell. But

in respect of Mr Cahill's evidence, there are certain matters that you can consider

that are capable of corroborating his statement. The BMW that was at the ESB pole

station in Monard, that was stolen from Mr Cruise. That is a piece of evidence

which is capable of corroborating Mr Cahill's statement because he was the man

who ultimately drove that car. You heard evidence that there were cable ties and

two sets of handcuffs in the possession of the people that were at the ESB pole

station in Monard before the Garvey robbery. And you've heard evidence that the

Garveys were restrained by handcuffs, by cable ties, and that the people in the

house were wearing balaclavas. Once again, that is evidence which is capable of

corroborating. It's a matter for you as to what weight you attach to it. The gun,

the screwdriver, the baseball bat, they were all described by the raiders and they

were described as being in the possession of certain individuals that left Sunville

House by Mr Gammell. That is capable of corroborating his testimony; a matter for

you as to whether or not you accept it.”

Discussion

The trial judge’s charge on the definition of corroboration

162. The classic definition of evidence constituting corroboration was stated by Reading L.J in R

v. Baskerville [1916] 2 KB 658:

Page 41 ⇓

"We hold that evidence in corroboration must be independent testimony which

affects the accused by connecting or tending to connect him with the crime. In

other words, it must be evidence which implicates him, that is, which confirms in

some material particular not only the evidence that the crime is being committed,

but also that the prisoner committed it. The test applicable to determine the nature

and extent of the corroboration is thus the same whether the case falls within the

rule of practice at common law or within that class of offences for which

corroboration is required by statute. The language of the statute, 'implicates the

accused,' compendiously incorporates the test applicable at common law in the rule

of practice. The nature of the corroboration will necessarily vary according to the

particular circumstances of the offence charged. It would be in high degree

dangerous to attempt to formulate the kind of evidence which would be regarded as

corroboration, except to say that corroborative evidence is evidence which shows or

tends to show that the story of the accomplice that the accused committed the

crime is true, not merely that the crime is being committed, but that it was

committed by the accused.

The corroboration need not be direct evidence that the accused committed the crime; it is

sufficient if it is merely circumstantial evidence of his connection with the crime."

163. The concept of corroboration has been considered in numerous cases in this jurisdiction.

In The People (DPP) v. Gilligan [2006] 1 IR 107, the Court moved from the formalistic

approach in Baskerville in favour of a more pragmatic concept of corroboration. Denham

J. at p.140 of Gilligan observed that there are three strands to corroborative evidence:

“Thus there are three strands to corroborative evidence. First, that it tends to

implicate the accused in the commission of the offence. It renders it more probable

that the accused committed the crime.

Secondly, it should be independent of the evidence which makes corroboration

desirable…

Thirdly, it should be credible. It should be supporting evidence which has a degree

of credibility.”

164. On the aspect of the independence of the corroborative evidence, Denham J. emphasised

a common-sense approach and cited the words of Lord Reid in DPP v. Kilbourne

[1973] AC 729 at p. 750:-

"There is nothing technical in the idea of corroboration. When in ordinary affairs of

life one is doubtful whether or not to believe a particular statement one naturally

looks to see whether it fits in with other statements or circumstances relating to the

particular matter; the better it fits in, the more one is inclined to believe it."

Denham J. went on to say: –

Page 42 ⇓

“Thus the nature of corroborative evidence depends on the facts and circumstances

of the case and the defence of an accused. Corroborative evidence establishes a

link which tends to prove that the accused person committed the offence.

Corroboration may be found in a simple fact. For example, in Attorney-General v.

O’Sullivan [1930] I.R. 552, a case of sodomy, corroborative evidence was evidence

of boxes found in a room.”

165. Denham J. then considered the importance of an accused’s defence in the context of

determining whether evidence was capable of amounting to corroboration: –

“The nature of the defence may be critical in determining what is corroborative

evidence. If, for example, the defence is that a person was not at a premises then

evidence by that person as to the interior of the premises may be corroborative, as,

there being no suggestion that the person had been there for another reason, it

tends to link the accused to the crime.”

166. When considering the issue of the credibility of the corroborating evidence, Denham J.

concluded that the evidence should be supporting evidence which has a degree of

credibility, but stressed that the idea that corroboration is a two-stage process is not

correct. In this regard she cited the case of R v. Hester [1973] A.C. 296 at p. 315, where

Lord Morris of Borth-y-Gest stated:-

“The purpose of corroboration is not to give validity or credence to evidence which

is deficient or suspect or incredible but only to confirm and support that which as

evidence is sufficient and satisfactory and credible; and corroborative evidence will

only fill its role if it itself is completely credible.”

167. In finding that corroboration is not a two-stage process, Denham J said: –

“Corroboration arises where the evidence to be corroborated has a degree of

credibility. However, corroboration is not a two-stage process. It is not a process in

which there is first a determination as to whether a witness is credible, and, if he is

credible, then the issue of corroboration is addressed.”

168. Therefore, the flexibility of the concept of corroboration cannot be in doubt. Issue is

taken on behalf of Alan Freeman that the trial judge, in defining corroboration and in

providing common day-to-day examples of corroboration, erred in confusing

corroboration and supporting evidence. But what is corroboration except evidence which

is proffered in order to confirm, support or verify the testimony to be corroborated?

169. In The People (DPP) v. Meehan [2006] 3 IR 468 Kearns J., in considering the difficulties

caused by the rather rigid definition of corroboration in Baskerville, was of the view that

the definition seemed to be unsound in principle. He observed that prior to Baskerville,

there was some controversy over whether corroborative evidence should implicate the

accused or whether it was enough that it strengthens the credibility of the accomplice.

Kearns J. considered the views of the Supreme Court of Canada in Vetrovec v. The Queen

Page 43 ⇓

[1982] 1 S.C.R. 811 to be particularly relevant, commending the views of the following

passage:-

“With great respect, on principle Lord Reading's approach seems perhaps over-

cautious. The reason for requiring corroboration is that we believe the witness has

good reason to lie. We therefore want some other piece of evidence which tends to

convince us that he is telling the truth. Evidence which implicates the accused does

indeed serve to accomplish that purpose but it cannot be said that this is the only

sort of evidence which will accredit the accomplice. This is because, as Wigmore

said, the matter of credibility is an entire thing, not a separable one:

‘. . . whatever restores our trust in him personally restores it as a whole; if we find

that he is desiring and intending to tell a true story, we shall believe one part of his

story as well as another; whenever, then, by any means, that trust is restored, our

object is accomplished, and it cannot matter whether the efficient circumstance

related to the accused's identity or to any other matter. The important thing is, not

how our trust is restored, but whether it is restored at all [Vol. VII, para. 2059, at

p. 424].’

These views may be taken as reflective of the proposition, which certainly

commends itself to this court, makes little sense to relate unreliability to classes of

persons – be they accomplices, children or complainants in sexual cases, rather

than to the circumstances of cases.”’

170. When assessing the definition of corroboration, Kearns J. emphasised the importance of

the defence set up by an accused and cited The People (A.G.) v. Levison [1932] IR. 158,

where O'Byrne J. stated at p. 165:-

“‘What constitutes corroboration must depend on the facts and circumstances of

each particular case, on the defence set up by the accused, and on the nature of

the question to be determined by the jury … it seems to us evidence of any material

circumstance tending to connect the accused with the crime and to implicate him in

it would appear to us to be corroboration in the circumstances of this case.’

171. Kearns J. went on to say:-

“An important feature evident in this definition is that that which constitutes

corroboration may depend in an individual case on the ‘defence set up by the

accused’…

Corroboration as it has been defined and applied in this jurisdiction, does not have

to directly prove that the offence was committed. It is sufficient if it confirms a

material particular of the witness's evidence implicating the accused. This Court in

The People (DPP) v. Murphy [2005] 2 I.R.125 (at 159) approved as correct the

reference to corroboration as it appears in Criminal Evidence (2nd ed.) by Richard

May at 330:-

Page 44 ⇓

“Material particular' simply means a material fact i.e. a fact which in the

circumstances of the case and the issues raised in it is material to the guilt or

innocence of the accused of the offence charged. It does not mean that the

corroborative evidence has to corroborate the whole of the evidence of the witness

who requires corroboration. If this were required the evidence of the complainant

or accomplice would be unnecessary. The whole case could be proved by the

corroborative evidence. It is sufficient therefore if there is confirmation of a

material part of the witness's evidence implicating the defendant in the offence.”’

172. In our view corroborative evidence must be viewed in a pragmatic way. The purpose of

corroboration is, after all, simply to strengthen or support the evidence desiring of

corroboration.

Conclusion on meaning of corroboration

173. The trial judge set out the ingredients of corroboration in simple terms in his charge to

the jury. Firstly, he stated: –

“It’s independent evidence which tends to show that the principal evidence is true”.

He then proceeded to give examples of ordinary everyday situations which could amount

to corroboration and continued: –

“So, the ingredients are that the corroborative evidence should be independent and

it should, in a criminal context, tend to implicate the accused person in the

commission of the crime with which he is charged.”

174. At a later stage in his explanation of corroboration in the context of the accomplices, he

said: –

“You might want to look at the corroborating evidence first, see what weight you

attach to it and then consider the accomplices' evidence. Then, consider the

evidence given by the accomplices in light of whatever corroboration they accept;

do they accept the evidence of the accomplice, so as to be satisfied beyond

reasonable doubt as to his account implicating the accused?

175. The move from the classic definition of evidence capable of constituting corroboration

towards a more pragmatic approach is well-established in the jurisprudence. There is

nothing technical about corroboration, moreover, circumstantial evidence can constitute

corroboration as observed by Denham J. in The People (DPP) v. Gilligan [2006] 1 IR 107.

A more nuanced approach to the definition in Baskerville, with its formalistic, narrow

approach is to be preferred and more fluid, common-sense approaches are evident as

reflected in Gilligan and The People (DPP) v. Meehan [2006] 3 IR 468.

176. It is difficult to find fault with the very straightforward definition of corroboration given by

the trial judge in the present case. In explaining the meaning of corroboration to the jury,

he made it quite clear to them that there are three strands to corroborative evidence,

Page 45 ⇓

namely that it tends to implicate the accused in the commission of the offence, that it

should be independent and that it should be credible. He highlighted that it is very

important that they had a good understanding of the concept of corroboration because of

the presence of accomplices in the trial. He then warned the jury of the dangers of

convicting on the uncorroborated evidence of an accomplice and he did so repeatedly, and

it is fair to say that no issue was taken with the warnings given by the trial judge in this

respect. Moreover, the trial judge explained to the jury that it was his function to inform

the jury whether evidence was capable of amounting to corroboration, but it was for the

jury, as the finders of fact, to decide whether any piece of evidence was in fact

corroborative. The trial judge then parked the issue of corroboration and addressed the

jury on other matters, returning in his summary of the evidence to the evidence that was

potentially corroborative. It is with this aspect of the charge that the appellants take

serious objection.

Discussion and Conclusion on grounds 2 and 3- Alan Freeman

177. In each case the judgment must be made by the trial judge in light of all of the

circumstances and the defence advanced as to whether material is potentially

corroborative. The crux of the complaint advanced on his behalf is that there was no

evidence in the case capable of corroborating the testimony of John Cahill and this was

not made clear to the jury. The argument is advanced that when discussing the evidence

given by Mr Cahill, the trial judge gave the impression that the evidence of Mrs Garvey in

particular concerning the envelope containing cash in dollars and sterling, was capable of

corroborating John Cahill’s testimony. However, the passage relied upon by the appellant

does not give this impression in our view. It is worth looking at the passage before the

passage complained of where the trial judge said: –

“…. and Anne Garvey also said this – into a white envelope, and this evidence

corroborates the evidence given by the Garvey’s in relation –, this evidence is

capable of corroborating the evidence given by the Garvey’s in relation to the

money in the envelope...”

The trial judge then went on to say: –

“She got the key, opened the safe, gave them the envelope would be US dollars

and Sterling. Members of the jury, it is, of course, a matter for you to decide

whether to accept or reject the evidence that Mr Cahill has given you in respect of

these matters up to this point, and it is entirely a matter for you”.

178. At a later stage in his charge the trial judge again addresses the issue of the foreign

currency in the envelope and very clearly indicates to the jury that Mr Cahill’s testimony

in this respect is capable of corroborating the evidence given by Mr and Mrs Garvey in

respect of the money stolen but that it did not corroborate Mr Cahill’s evidence that Mr

Freeman was there. The trial judge emphasised that the jury were very reliant on the

testimony of Mr Cahill so far as the allegation against Mr Freeman was concerned. In so

saying, the trial judge reiterated that the jury were entitled to rely on the evidence of an

accomplice so long as they carefully considered the dangers which he had outlined to

Page 46 ⇓

them in respect thereof. As has been repeatedly emphasised by this Court, a jury should

only be discharged as a last resort. We have already concluded that the trial judge

properly charged the jury as to the meaning and definition of corroboration and we are

satisfied that he did not err in the manner in which he addressed the evidence of the

accomplice, John Cahill.

179. While the trial judge did not expressly indicate to the jury that there was no evidence

capable of amounting to corroboration of John Cahill’s testimony concerning Alan

Freeman, in recharging the jury on the issue of corroboration, he identified the evidence

which was capable of corroborating John Cahill’s evidence concerning Patrick Roche. It is

quite clear that the trial judge instructed the jury that the counting of money was not

capable of corroborating the evidence of Mr Cahill, the accomplice. While it would of

course have been preferable had the trial judge expressly stated that there was no

evidence capable of corroborating John Cahill’s testimony concerning Alan Freeman, the

thrust of his closing remarks to the jury make it quite clear that this was in fact the case.

These grounds therefore fail.

Discussion grounds 10 and 15 – Patrick and Philip Roche

180. It is contended on behalf of these appellants that the trial judge made comments which

were prejudicial and adverse to them. Firstly, it is submitted that the judge, through his

comments, disclosed that he was in favour of the respondent’s case. In this respect it is

contended that when addressing the evidence of the accomplice William Gammell, the

trial judge’s comments were unbalanced in favour of the respondent.

181. The defence case was that Mr Gammell was motivated by fear of the Gardaí. He said that

he had been beaten up at the time of his arrest. Issue was taken with much of the judge’s

charge in this context and in particular as follows: –

“Ask yourself the question of whether or not there has been any contact with

members of an Garda Síochána during the intervening time periods. Ask yourself

what motivations drive Mr Gammell. I’m not telling you that you need to approach

the matter in this way; I’m simply making suggestions to you as to what you may

wish to consider, what do you take. You are masters in respect of all of the

evidence” .

182. Issue is also taken with the manner in which the trial judge addressed the evidence of

John Cahill, wherein the appellant submits that the trial judge conveyed to the jury that

the accomplice was an honest and truthful witness. In this respect, reliance is placed on

the judge’s comments concerning the cross-examination of Mr Cahill.

183. Criticism is also made of the trial judge’s charge in the context of his concluding remarks

on circumstantial evidence where he said: –

“And you can consider then the matters that were – the items that were found in

the car, the handcuffs, the money, the glove, the balaclava, these are items of

circumstantial evidence. But you can, if you think that it is appropriate and if you

Page 47 ⇓

can’t wait to them, you can build them, layer upon layer, until such time as you

have a stronger piece of evidence. And don’t forget of the requirement that you

have and that remains with you at all times is that you must be satisfied beyond

reasonable doubt in relation to all of this, but you can use all of those pieces of

evidence. Then there is the evidence of the accomplices, and I have given you the

warning in relation to those already.”

184. Issue is also taken with the manner in which the trial judge to address the evidence of

one Robert Mockett, where it is contended that the trial judge, commented adversely on

the defence version of events by way of cross-examination of the witness where the trial

judge in highlighting conflicting evidence said: –

“members of the jury, it is a matter for you to assess the credibility of this witness,

in light of the two, conflicting versions of events, but it’s difficult to see what great

significance his evidence is in any event”.

185. In respect of Patrick Roche, it is submitted that the trial judge displayed a rhetorical slant

in favour of the prosecution when detailing in his charge the circumstances of the

inference questions put to the appellant.

186. Both appellants submit that throughout the charge the trial judge displayed a bias

towards the prosecution which resulted in an unbalanced charge and adversely affected

the defence position.

Submissions of the respondent

187. In relation to Philip and Patrick Roche, the respondent submits that the appellants have

lost sight of what can constitute corroboration and there were various strands of evidence

which could have been treated by the jury as corroborative of the accomplice evidence.

188. The respondent submits that the narrower approach taken by the trial judge in his

recharge was to the benefit of the appellants. However, key pieces of corroborative

evidence remained. In relation to Patrick Roche there were the contents of the car in

which he was found, the shards of glass on his person and the layers of clothing he was

wearing. In relation to Philip and Patrick Roche, there was the DNA material found in the

bag shown to Gardaí by Mr Gammell.

189. The respondent concludes that, taken as a whole, the trial judge’s charge was fair and

balanced, and it was always emphasised that it was a matter for the jury to consider the

evidence.

Conclusion on suggested adverse comments

190. We are satisfied on a careful consideration of the entirety of the judge’s charge, that the

criticisms on behalf of the appellants Patrick and Philip Roche are misplaced. In his

opening remarks to the jury, the trial judge stated as follows:-

“Something that I'm going to be saying to you about anything I say about the

evidence or any comment I make about the evidence is that it is just that, a

Page 48 ⇓

comment. You're masters of the facts. It is your job to make decisions on the

basis of the evidence that you've heard here, and I'm going to be explaining that

more clearly to you. So, when I do eventually come to read the evidence, if your

version or if your recollection or if any notes you've taken clash with mine, go with

yours, okay. I'm not infallible in relation to any of this. So, what do I do here?

I'm the Judge, I preside over the case. I'm in charge of the law, as you have been

told, and you have to accept the law as directed by me. My job is to ensure that a

fair trial is conducted according to the rules of law. I'm obliged to be absolutely

neutral in respect of the case and neither in one side's corner or the other. So, I'm

not cheerleading for either prosecution or defence.”

191. When the trial judge was requisitioned on the basis that he had trespassed on the jury’s

territory in contending that the accomplice Mr Cahill was upfront about his past criminal

conduct, he recharged the jury as follows: –

“Now, something that I said to you, members of the jury, that I want you to ignore,

is that I said to you that Mr Cahill had been reasonably upfront regarding his own

past involvements in criminality. It's not a matter for me to say that, members of

the jury, you've heard the evidence, you've seen all of the parties involved, that is

a matter for you entirely and you alone, and I apologise for having strayed into

your territory in that respect. It is a matter solely for you to decide on the

credibility of Mr Cahill and any other witness and any other piece of evidence that

you heard.”

192. We are entirely satisfied that even if the jury did not take on board the judge’s instruction

from the outset, that they were the masters of fact, and there is no reason to believe that

any jury would ignore such an instruction. The judge addressed any possible imbalance

by addressing the jury on foot of a requisition. We are satisfied that there was no error in

this respect.

Corroboration of the accomplice testimony – John Cahill and William Gammell

Discussion

193. Patrick and Philip Roche submit that the trial judge identified independently verifiable

detail of the events recounted by the accomplices as corroborative of their account in

respect of the Garvey and Creed aggravated burglaries. The complaint made in this

respect is that the evidence identified by the trial judge did not in fact connect the

appellants to the crimes. Therefore it is argued that an essential ingredient of

corroboration is absent.

194. In his charge concerning the aggravated burglary in the Garvey home, the trial judge, in

summarising the evidence to the jury, stated that the evidence disclosed that on 16th

April 2012, members of the Garda Síochána were on duty in Buttevant, when they

observed two vehicles and decided to follow the first vehicle which had accelerated away

from the Garvey’s. This vehicle was a BMW with a 08 registration plate. In the vehicle was

found the driver, Christopher Stokes and a passenger, Patrick Roche. On searching the

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vehicle a sum of money was found, a black balaclava, a pair of gloves and a screwdriver.

Also found were a pair of handcuffs and a black ski mask. The judge then said:-

“The balaclava, gloves, money and handcuffs are, ladies and gentlemen - I'm

literally commenting on the evidence, their evidence - and though circumstantial

evidence, on an individual basis each one of them may not amount to much, but

when you put all of them together and you look at them cumulatively, they're

capable of corroborating evidence that was given by the Garveys. It is a matter for

you as to whether or not you are satisfied that they do corroborate the evidence

that was given by the Garveys in relation to the matter.”

195. It is undoubtedly so that circumstantial evidence may constitute corroboration. These

items which the trial judge indicated were capable of corroborating the testimony of the

Garveys, pieces of circumstantial evidence, when considered together could be said by a

jury to be of sufficient strength to not only corroborate that the offence itself was

committed but also to connect the appellant with the commission of the offence.

196. The duty of the trial judge was to identify the pieces of circumstantial evidence which

were capable of amounting in law to corroboration and this is in fact precisely what the

trial judge did in this instance. Having done that he then proceeded to direct the jury as

to how they should treat circumstantial evidence in the context of amounting to

corroboration. We cannot identify any error in the manner in which the trial judge

directed the jury in this context.

197. The appellants criticise the manner in which the trial judge highlighted the evidence given

by the Garveys of the aggravated burglary, having pointed to the items found by the

Gardaí in the car in which Christopher Stokes and Patrick Roche were travelling. However,

it is clearly the position that the evidence of Mr Cahill was capable of corroborating their

account.

198. As regards the aggravated burglary in the Creed home, the trial judge summarises the

evidence including the evidence of the forensic scientist Mr Hoade, who analysed the

items which have been discovered in those Dunnes Stores bags which the accomplice Mr

Gammell said he had been asked to dispose of but in fact had hidden and subsequently

located for the Gardaí. Various items were found in the Dunnes Stores bags including a

hooded top, runners, gloves, balaclava and the fingertip of a glove from which Mr Hoade

sought to conduct a forensic analysis. DNA profiles were extracted from the woollen

gloves and also from the black balaclava and he concluded that the DNA profile from the

glove matched that of Philip Roche’s DNA profile and the DNA profile generated from the

inside of the balaclava matched Patrick Roche’s DNA profile. The trial judge then

highlighted the statistical analysis and then said:-

“You've heard the evidence given by both the Creeds and the Garveys that the

people involved in the robberies were wearing balaclavas and you also heard that

gloves were worn. This evidence is capable of corroborating that testimony, but

make sure that any conclusions you draw in respect thereof are logical. This

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evidence is highly suggestive that a glove and balaclava, which came from inside of

the Dunnes Stores bag, were, at some stage, worn by Patrick Roche and Philip

Roche. You should then consider all of the evidence and satisfy yourself in relation

to the circumstances by which the Dunnes Stores bag came to be at that location

with those items in it. You've heard the evidence in that respect from Mr Gammell,

who said that after he collected Patrick and Philip Roche from the Creed house, they

took their clothes off and put them in a Dunnes bag. He was told to burn the

clothes bag but he later hid the bag.”

199. When one looks to the more nuanced definition of corroboration, as expressed in the

decisions of The People (DPP) v. Gilligan [2006] 1 IR 107 and The People (DPP) v.

Meehan [2006] 3 IR 468, the evidence of the finding of the Dunnes Stores bag with its

contents was evidence capable of corroborating William Gammell’s testimony regarding

this bag and the jury were so advised. After all, corroborative evidence is evidence of any

material circumstance which tends to connect and implicate an accused in a crime, and it

is sufficient if the corroborative evidence proves a material particular of a witness’s

evidence implicating an accused person. In circumstances where William Gammell gave

evidence of hiding the bag following the Creed burglary, the finding of the bag and the

evidence of the analyses of its contents was capable of corroborating the accomplice’s

evidence.

200. Issue is taken with the trial judge identifying other pieces of evidence as capable of

corroborating the accomplice testimony, such as the BMW found at the ESB station in

Monard, the fact that a gun, a screwdriver, and a baseball bat were described as being

used in the raids and were described as being in possession of the appellants as they left

the Garvey home. There is justification in this criticism. Following requisitions made on

behalf of the three appellants, the trial judge agreed to recharge the jury and to advise

the jury that there were two pieces of evidence which were capable of corroborating the

testimony of the accomplice John Cahill. Those two pieces of evidence were firstly; the

shards of glass found on Patrick Roche’s clothing and secondly, the discovery of the

various items by the Gardaí in the vehicle driven by Mr Stokes in which Patrick Roche was

a passenger.

201. As regards the accomplice William Gammell, the trial judge indicated that he would advise

the jury that the items discovered in the Dunnes Stores bag and the DNA analysis arising

therefrom were evidence capable of corroborating William Gammell’s testimony. In this

respect the trial judge then instructed the jury, the pertinent portions being: –

“So, some of the evidence which you have heard from William Gammell and Mr

Cahill …are not capable of corroborating Gammell's and Cahill's evidence against

the accused… So, things like the burnt-out BMW, the tyre marks, the finger from

the glove, the balaclava that, or the balaclavas that Mr Gammell and Mr Cahill say

that they saw the accused wearing, and any other references to balaclavas, other

than in the '06 BMW outside of Cork, I'll come to that shortly. When they say they

saw handcuffs, weapons, cable ties, that sort of thing. When they say they saw

Page 51 ⇓

Alan Freeman counting money; all of these things are capable of corroborating

other people's evidence, but they're not capable of corroborating the

evidence of the two accomplices, that is William Gammell and John Cahill.

So, what evidence then is there open to you which is capable of corroborating John

Cahill's evidence? Well, the following; the glass shards found on Pat Roche's

clothing are capable of amounting to corroboration of Patrick Roche's involvement

in the Garvey robbery, capable of doing that, but it is up to you to decide on the

weight of that evidence and the importance to which you attach that evidence, as

to whether or not you find that evidence to be corroborative. So, that evidence is

capable of corroborating elements of Mr Cahill's evidence, but it's up to you to

decide whether or not it does so.

The second area where we have evidence that is capable of corroborating Mr

Cahill's evidence in relation to the Garvey robbery, is the discovery of the handcuff,

money, one balaclava, one ski mask and the screwdriver in the '08 BMW, this is the

one on the Doneraile Road, outside of Buttevant, in which Mr Stokes and Pat Roche

were travelling. You'll remember that that was the one that was stopped by the

guards. So, the items that were found in that car, together with the time at which

they were stopped, those matters are capable of providing corroboration in relation

to Mr Cahill's evidence, as against Pat Roche in respect of the Garvey robbery.

I turn now to Mr Gammell, what evidence can you consider in relation to

corroborating his testimony? The DNA evidence which was extracted from the

samples that were taken from the balaclava and the glove and they were both in

the Dunnes Store bag, which were allegedly dropped or hidden by Mr Gammell,

after having been instructed to set fire to them, you remember that evidence, and

this is after the Creed robbery…that evidence is capable of corroborating William

Gammell's evidence in relation to Patrick and Philip Roche's involvement in the

Creed robbery. Now, that deals with the corroboration side of thing.”

Conclusion

202. Whilst it is undoubtedly so that it would have been preferable if the trial judge had not

indicated that items which were not capable of corroborating the accomplice testimony

were in fact so capable. However, having been requisitioned, the trial judge identified the

items which were in law capable of corroborating the accomplice testimony.

203. Before the trial judge proceeded to recharge the jury on these items, he indicated his

intention to do so. The trial judge also indicated that he would recharge the jury in

relation to other aspects which were the subject of criticism. It appears there was an

indication of satisfaction on the part of Patrick Roche and Philip Roche. We acknowledge

that those present at trial are in a position to assess whether matters have been

addressed adequately or whether fresh issues arise but even leaving the question of the

satisfaction of the parties to one side, we are satisfied that the recharge by the judge on

the issue of the evidence capable of corroborating the accomplice testimony was, in the

circumstances of a long and undoubtedly complex trial, satisfactory in all the

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circumstances. Accordingly, we are not persuaded that the charge on corroboration

rendered the trial unsafe.

Ground 11- Philip Roche and Ground 16 – Patrick Roche

16/11. The learned trial judge erred in failing to adequately recharge the jury following

requisitions.

204. In respect of the recharge, the appellants submit that this did not sufficiently remedy the

harm done as the clarification that the judge had trespassed on the jury’s function did not

alter the underlying fact that the Court believed that the accomplice evidence should be

accepted.

The appellants submit that the comments of the judge in relation to the evidence capable of

amounting to corroboration were liable to skew the jury’s assessment of the evidence and

could not be cured by a simple correction that they should be ignored. The appellants

submit that the Court’s comments further emphasised the prosecution’s case and the

recharge was insufficient to cure the harm done by the cumulative prejudice that had

been caused by the charge.

Conclusion

205. The trial judge took great care in recharging the jury. He apologised for any confusion

and proceeded to recharge the jury in the terms we have outlined above. The final

directions given by him were very clear. He highlighted for the jury the evidence which

was capable of acting as corroboration of the accomplice testimony and did so with

clarity. We are not persuaded that there is merit in these grounds.

Ground 1 of Alan Freeman and Ground 10 of Patrick Roche- Cross- Examination

1. The learned trial judge erred in law and in fact in failing to accede to an application

by counsel on behalf of the above-named appellant for separate trials on 4 separate

occasions in circumstances where counsel for the co-accused for the alleged

offending behaviour cross-examined witnesses in such manner as to implicate the

accused in unrelated criminality.

10. The learned trial judge erred in law in refusing the appellant’s application for a

separate trial following evidence of Christopher Stokes’ conviction being adduced

before the Jury and following other prejudicial matters being adduced by counsel on

behalf of Philip Roche.

206. It is necessary to contextualise these grounds. By way of background, the indictment

originally preferred 34 counts. Count 8 was preferred against Patrick Roche only and was

a count of handling stolen property. The particulars of that count read as follows: –

“Patrick Roche did, on the 30th day of May 2012, at Parkstown, Horse and Jockey,

Thurles, in the County of Tipperary, dishonestly handle stolen property, to wit a

Toyota Landcruiser Jeep bearing Registration Letters and Numbers 06 KE 8015,

knowing that the property was stolen or was reckless as to whether it was stolen.”

207. Patrick Roche was acquitted of this count.

Page 53 ⇓

208. Prior to the commencement of the trial, a successful application was made on behalf of

Alan Freeman to sever certain counts from the indictments, namely counts concerning an

alleged aggravated burglary at the home of a Mr Cruise on the 13th April 2012 and a

count of handling stolen property, namely; a Toyota Landcruiser Jeep.

209. Before the accomplice Mr Gammell gave evidence, counsel for Mr Freeman applied for a

separate trial as he was concerned evidence would be adduced which would prejudice his

client. This was refused and while the application was renewed a number of times

following evidence and indeed the discharge of the jury was sought, such applications

were also refused.

210. It is contended that during cross-examination, counsel who appeared on behalf of Philip

Roche at trial asked questions which, in and of themselves, were prejudicial or the

answers to which caused prejudice to the co-accused. It is contended that the trial judge

ought to have ordered separate trials as a consequence and in effect discharged the jury

in respect of Patrick Roche and Alan Freeman.

Alan Freeman

211. Insofar as Alan Freeman is concerned, on day 12 when William Gammell was cross-

examined, he made a number of references to Alan Freeman, which, it is contended,

served to implicate him in the Cruise aggravated burglary by referring to the blue BMW,

which was used in the Garvey aggravated burglary as being ‘robbed’ by Alan Freeman.

Moreover, that evidence of the appellant’s role in the transfer of a stolen Toyota Land

Cruiser Jeep was adduced. Mr Freeman was not on trial for the theft of the BMW or of

handling the Land Cruiser.

212. Complaint is also made with matters arising during the cross-examination of John Cahill.

Firstly, on day 16, counsel for Philip Roche in the trial, asked the witness a number of

questions in succession about duress, dealing in drugs, being in fear of others and a debt

owed to Alan Freeman and the steps he took to discharge it. Furthermore, Mr Cahill was

also cross-examined in a manner which it is contended linked Alan Freeman to a

Mitsubishi Lancer, which it was suggested had been used in the course of an aggravated

burglary of the Cruise home on the 13th April 2012.

Patrick Roche

213. Counsel for Philip Roche asked John Cahill to confirm that Christopher Stokes had

pleaded guilty to the offence of aggravated burglary at Sunville House. He, it will be

recalled, was the driver of the vehicle in which Patrick Roche was a passenger when he

was arrested by the Gardaí shortly after the Sunville House burglary.

214. Finally, pertinent to both appellants was the question which arose in cross-examination

when counsel for Philip Roche asked the witness:

“And what country do you intend going to having given this evidence?”

Thus implying, it is said, that the appellants were dangerous men from whom it would be

necessary to flee. Following this question, counsel for Patrick Roche made an application

Page 54 ⇓

for a separate trial, that is separate from the trial of his co-accused Philip Roche, on the

basis that his client’s interest had been undermined in the presence of the jury. Counsel

for Alan Freeman also made an application for a separate trial in the following terms: –

“ I was going to apply for a separate trial on the completion of this cross-

examination. It's as well to make it now. The Court is probably sick of me

standing up looking for separate trials but it has now come to the stage where I

don't believe that this Court has any option but to grant Mr Freeman a separate

trial …

When Mr Costelloe had finished his careful examination in chief of the witness I was in the

position where I could readily cross-examine this witness --. But, now I have a client

who's not only alleged to have committed this aggravated burglary before this jury he's

now a drug dealer who is responsible for a 10,000 debt by Mr Cahill. It didn't come out in

those crystal clear terms but anybody with half a brain in their head would infer that that

is the situation. That Mr Cahill somehow or other -- drugs -- there is a drug debt there.

It didn't come out in that fast term but that's what's implied and the jury are no eejits

and it's as clear as day that that is what has come out. It's an impossible uphill battle

now for Mr Freeman given that Mr Freeman was granted a separate trial in respect of

other matters in the case things have emerged during the course of the trial ongoing

which have linked him to the BMW stolen from the Cruise's or taken from the Cruise's.

Linked him to a Mitsubishi which wasn't clear from the evidence of Mr Gammell. But, that

is all gone for him now and I submit that he's in an impossible situation.”

215. The trial judge refused and in grounding his decision, the trial judge stated as follows:-

“I've done my best to try and maintain as level a playing field as possible for all

participants where including the people and we've worked hard at achieving that.

And a comment I made earlier in relation to a previous application is that I have to

look at the body of evidence as a whole, I have to look at matters as a whole. I

have to have consideration for the rights of the individuals, each of them. But, also

I have to have consideration for the trial process and procedures that are adopted.

This is a joint trial. Risks are associated therewith and they have become very

apparent…

I don't feel the need to press the nuclear button in respect of ordering a separate

trial in relation to his client at this time. I don't think that we've reached a

threshold where such prejudice has been shown. There is a lot of work I have to do

if we get to the charge, there's a lot of work I will have to do. But, at the present

time I'm satisfied that it can be properly dealt with. If difficulties arise with it they

can be raised with me. But, as things stand I'm satisfied that, repetitive and boring

as it might be for the jury, clarity can be provided to them in relation to many of

these matters…. In respect of Mr Heneghan's application I'm repeating myself

somewhat. I'm going to be very clear to the jury in indicating to them that they

cannot engage in speculation, they cannot engage in conjuncture. In relation to

there has been no mention -- there has been no specific mention of the debt being

Page 55 ⇓

linked to drugs and I'm going to tell them very clearly that debts can arise in a

whole range of situations and that they're not to go jumping the gun or making

assumptions in relation to anything and it has no relevance in the context of their

decision making process in relation to his client. Of course I will tell them clearly

that each charge on the indictment is to be dealt with as an island and that each

individual is entitled in respect of each charge to a proper and careful assessment

on the basis of the evidence in respect of him and that charge alone. I'm satisfied

that when properly instructed the jury can understand their task and apply the

evidence that they've heard appropriately.”

Submissions of Alan Freeman

216. The appellant submits that the above cross-examinations elicited evidence that the

appellant committed, was involved with, or connected to a number of offences which

resulted in gross prejudice to the appellant. The appellant submits that this prejudice was

incapable of remedy by judicial warning.

217. The appellant refers to the judgment of Hardiman J. in The People (DPP) v. McGrath

[2013] IECCA 12 and submits that as in McGrath, the effect of the joint trial permitted the

co-accused by cross-examination to blacken the character of the appellant. As such, the

appellant submits that the trial judge was wrong in law to refuse to order a separate trial

for the appellant.

Submissions of Patrick Roche

218. This appellant submits that the nature and content of the cross-examination of John

Cahill, in particular the reference to the guilty plea of Christopher Stokes, served to

adduce evidence of the bad character of the appellant which would otherwise have been

inadmissible. The appellant submits that this evidence interfered with the appellant’s right

to a fair trial and the presumption of innocence.

Submissions of the respondent

219. The respondent submits that the trial judge dealt with this matter appropriately and in

fact acquiesced to the views of counsel for the appellant in not addressing the jury on this

issue. The respondent submits that the reality of trials such as the present one is that

prejudicial material may arise in the evidence of accomplices, but this should only lead to

a discharge when the issue is irredeemable. The respondent says that as in The People

(DPP) v. Kenny [2018] IECA 38, the trial judge was within his rights not to discharge the

jury and rely on the general principle that the jury will assess the evidence in accordance

with the directions given to them.

220. In relation to the arguments of Mr Freeman, the respondent submits that McGrath was a

markedly different case where it was apparent that the co-accused took every opportunity

to blacken the character of Ms. McGrath. The respondent submits that that is not the case

being advanced here. Furthermore, there was no knowledge before the jury that Mr

Freeman knew the origins of the Land Cruiser and therefore there was nothing for the

jury to speculate upon. In relation to Patrick Roche, any prejudicial material that may

have arisen could have been dealt with in the judge’s charge, but no further mention was

made by the trial judge by request of counsel for the appellant.

Page 56 ⇓

221. Reliance is also placed on the decision in The People (DPP) v. Cawley and De Silva

[2015] IECA 100, where Edwards J. emphasised the general principle that juries can be relied

upon to follow the directions given to them in their assessment of the evidence. At

para.133 Edwards J. stated as follows: –

“It can also arise that in some cases, because of their peculiar circumstances, there

is no effective means of safeguarding against unfairness other than by the

severance of the indictment and the directing of separate trials. However, such

cases are relatively rare and recourse to such a measure should represent a last

resort, following prior consideration and rejection for good and cogent reasons of all

other options, particularly where a joint trial has been underway for some time.”

222. Finally, it is said on behalf of the respondent concerning Mr Freeman’s contention that the

evidence of Mr Gammell of the Landcruiser was appropriately addressed by the trial

judge.

Discussion

223. On day 12 of the trial, William Gammell, the accomplice to the Creed aggravated

burglary, gave evidence. Prior to the commencement of his evidence, an admission was

made on behalf of each of the appellants pursuant to section 22 of the Criminal Justice

Act 1984 in terms of accepting that on 13th April 2012 a light blue BMW vehicle with

registration number 00 WW 1000 was taken from a Mr Cruise. It was also accepted that

on 11th April 2012 a blue Ford Transit motor van driven by Mr Freeman was rear ended

by a vehicle driven by William Gammell.

224. William Gammell was then called and gave evidence. As there are three vehicles in

respect of which the alleged prejudicial cross-examination is concerned, we will address

the evidence in respect of each of the vehicles in turn, starting with the Mitsubishi Lancer.

The Mitsubishi Lancer

225. In his direct testimony, Mr Gammell was asked whether he had met Mr Freeman prior to

11th April 2012. He said that prior to that he had one or two dealings with Mr Freeman

and the following exchange took place: –

“Q. And specifically was there an occasion where you were asked to do something

with a car for Mr Freeman – by Mr Freeman?

A. Yes. We were asked to mind a car, yes.

Q. Okay. When you say we, who is we were asked?

A. Me and John Cahill.

Q. John Cahill, okay. And what kind of a car was it?

A. A white Mitsubishi Lancer.

Page 57 ⇓

[…]

Q. And what did you do with it?

A. I parked it behind a house where a family member was staying.

Q. Okay. Do you remember whereabouts that was?

A. In Oola, County Limerick”.

There followed an objection concerning the maps and then the questioning continued: –

Q. So, the Mitsubishi Lancer was left behind a house at Oola?

A. Yes. Near the…

Q. Okay. And that was at the request of who? Who asked you to do that?

A. John Cahill.

Q. Right. And on behalf of who?

A. Alan Freeman.”

The next reference to the Mitsubishi Lancer with which Mr Freeman takes issue came

about in the course of Mr Gammell’s cross-examination by counsel on behalf of Philip

Roche as follows: –

“ Q. And this just happens to be a casual bumping into each other, yourself and

John Cahill?

A. Yes.

Q. And low and behold he’s got this white Mitsubishi Lancer that’s so hot it needs to

be parked off side?

A. Yes.

[…]

Page 58 ⇓

Q. So, when you say in your statement “I’m talking about the white Mitsubishi

Lancer” that you parked in your dad’s place for €400 for the night, you say, “that’s

the car to my recollection that was used in the robbery of the BMW in

Cappaghmore”?

A. Yes

Q. So, here you’re picking up this car from John Cahill--

A. I didn’t pick it up. He dropped it off. I just seen the car.”

The cross examination continued: –

Q. And would be fair to say that the white Mitsubishi Lancer that you are keening

out of sight is the self – same vehicle that is used to invade Mr Cruise’s property?

A. Yes, they used that car”.

226. On day 16, counsel for Philip Roche cross-examined the accomplice John Cahill who was

the accomplice to the Garvey aggravated burglary. Insofar as the Mitsubishi Lancer was

concerned the following exchange took place: –

“Q And this Mitsubishi Lancer was that used in the robbery of the Cruise household?

A. I was told on the night of that that the car was being moved on to tell Willie that

it was being moved.”

Conclusion on this sequence of questioning.

227. The concern expressed on the part of the appellant Alan Freeman is that the above

evidence prejudiced him in the eyes of the jury by inferring that he had an involvement

with a stolen vehicle. However, on a careful scrutiny of the impugned pieces of evidence,

it becomes clear that the accomplice John Cahill was the moving party insofar as requests

were made concerning the Mitsubishi Lancer. The height of the evidence was to the effect

that Mr Cahill was acting on behalf of Mr Freeman. This was a matter which could be

explored in cross-examination of Mr Cahill but did not prejudice Mr Freeman to the degree

that it was necessary to direct separate trials. It is the very nature of trials where there is

accomplice evidence that the accomplices themselves are of course directly involved in

the commission of the offences in respect of which they are now giving evidence. The

central feature of accomplices is that they themselves are directly involved in criminal

activity and in this instance the impact of this evidence was to link Mr Cahill with the

Mitsubishi Lancer, but we are not persuaded that the impact of the evidence was of such

a prejudicial quality so as to require separate trials.

228. Moreover, on requisition, the trial judge addressed the jury on this vehicle vis-à-vis Mr

Freeman in the terms requested by his counsel

The Toyota Land Cruiser

Page 59 ⇓

229. On day 12 of the trial, again in the course of Mr Gammell’s evidence he was asked about

a silver Toyota Land Cruiser. The following sequence of questions and answers took place

in direct testimony: –

“A. No, it was a silver Toyota land cruiser.

Q. A silver Toyota Land Cruiser, okay. And how did you get that car?

A. They rang me said that it was coming off in Dublin – –

[…]

Q. So, my question was how you got that Land Cruiser, what was your answer?

A Alan Freeman and Patrick Roche rang me said it was coming down from Dublin,

to collect it in the Horse and Jockey.”

230. Count eight on the indictment concerned a count of handling stolen property, namely a

Toyota Land Cruiser jeep at Horse and Jockey, Thurles as against Patrick Roche. Count 30

concerned a count of handling stolen property of the same vehicle, but in a different

location, namely in Athy, Co Kildare as against Alan Freeman. The latter count was

severed from the indictment before the trial commenced. Consequently, it is argued on

behalf of Alan Freeman that as he was not being tried for the handling of the Land

Cruiser, the above extract from the evidence implicated him in a count which was not

before the jury.

Conclusion regarding the Land Cruiser

231. We are not persuaded that the impugned evidence caused any prejudice of the kind

requiring separate trials. The prosecution had originally preferred counts in respect of

three aggravated burglaries as we have outlined above. The reason why the counts in

respect of this particular jeep were preferred on the indictment was that it was the

respondent’s case that that vehicle was used in the aftermath of the Creed aggravated

burglary. The respondent’s contention was that there was a link between the alleged

offences and the three appellants and that there was a similar modus operandi vis-à-vis

the three offences and that there was a number of vehicles connected to the aggravated

burglaries. However, the trial judge severed the counts concerning the first aggravated

burglary, as the counts related to Mr Freeman only and also severed the count of handling

the Land Cruiser vehicle insofar as it related to Mr Freeman.

232. Had this Court been dealing with the application to sever in the first instance, it is unlikely

that we would have been persuaded by the argument advanced on behalf of Mr Freeman

to sever the indictment. However be that as it may, the indictment was severed but it is

very difficult to see that any prejudice arose from the impugned questioning and answers

concerning the Land Cruiser, there can be no question of any responsibility being visited

on Alan Freeman regarding the provenance of the jeep. Moreover, we note that Patrick

Roche was in fact acquitted of this count by the jury. Moreover, in his charge to the jury,

the trial judge directed the jury that Patrick Roche telephoned William Gammell regarding

Page 60 ⇓

the Toyota Land Cruiser and told him to go to Horse and Jockey to see if he, Mr Gammell,

wanted to buy it. He emphasised that that was the only evidence connecting Patrick

Roche to the Land Cruiser. No mention was made of Mr Freeman and no requisition

followed.

The sky-blue BMW

233. The only count concerning this vehicle related to the appellant Philip Roche, wherein he

was charged with possessing stolen property on 16th April 2012, namely a BMW 5 Series

vehicle bearing registration letters and numbers 00 WW 1000. He was acquitted of this

charge. As we have outlined above, prior to Mr Gammell giving evidence on day 12,

admissions were made on behalf of the three appellants pursuant to s.22 of the Criminal

Justice Act 1984 that this vehicle was a stolen vehicle.

The significance of the sky-blue BMW

234. This BMW car had been stolen from the Cruise household on the 13th April 2012. The

accomplice, Mr Cahill gave evidence that it was used in the Garvey aggravated burglary

on the 16th April 2012 and burnt out after some days later.

The sequence of evidence

•

On day 12, prior to Mr Gammell giving evidence, counsel for Mr Freeman, made a

pre-emptive strike and sought a separate trial as he was concerned that evidence

would be elicited which would prejudice his client. This was refused.

•

Prior to Mr Gammell’s evidence, an admission was made that the sky-blue BMW,

registration number 00WW1000, was stolen from Mr Cruise on the 13th April 2012.

•

Mr Gammell gave evidence and was cross-examined by counsel for Philip Roche.

•

During this cross-examination, with reference to the white Mitsubishi Lancer,

counsel referred to Mr Gammell’s statement where he said:-

Q.“That’s the car to my recollection that was used in the robbery of the BMW in

Cappaghmore?”

A. Yes.

and also asked the question:-

“So if you’re that innocent why would you be burning the BMW?”

The latter question was asked with reference to Mr Cahill, the accomplice to the Garvey

aggravated burglary, to which the answer was:

“A. The BMW was used in the Garveys. Alan Freeman robbed the BMW and he brought

it to the Pole Field in Monard. “

•

Up to this point, while it was accepted that the BMW was stolen from Mr Cruise,

there was no evidence linking Mr Freeman to this.

Page 61 ⇓

•

On day 13, following the evidence of Mr Gammell, counsel on behalf of Alan

Freeman made an application for the jury to be discharged on the basis of the

evidence adduced concerning the Land Cruiser, the Mitsubishi Lancer and the BMW.

•

The application was refused.

•

On day 16 when Mr Cahill was being cross-examined by counsel on the half of Philip

Roche, the following took place:-

“Q. And then there was a question of Ian Cruise’s sky-blue BMW?

A. Yes

Q. That was stolen. I think it was on 14 April 2012?

A. I’m not sure. I don’t know what date.”

•

At the conclusion of the latter portion of cross-examination on day 16, counsel on

behalf of the respondent alerted the trial judge to his concern regarding the

direction the cross-examination was taking. It is fair to say however that at this

point the concern arose from the cross-examination of Mr Cahill on the reason why

he (Mr Cahill) became involved in the Garvey aggravated burglary, specifically as to

whether it was on a voluntary basis or that he was operating under duress from

other parties. A lengthy argument followed between counsel for the respondent and

counsel for Mr Philip Roche where Mr Costelloe drew to the trial judge’s attention to

his concerns regarding the relevance of the line of questioning by counsel for Philip

Roche on a number of issues including the relevance of this aspect of the cross-

examination.

•

The trial judge refused to allow any questions concerning Mr Freeman and the

blue BMW.

•

Following further cross-examination, applications were made on behalf of Patrick

Roche and Alan Freeman for separate trials. The impugned line of cross-

examination this time involved a question which it was contended led to the

inevitable conclusion that it would be necessary for Mr Cahill to leave the country

for his own safety after giving evidence, but counsel for Mr Freeman again

expressed his concern regarding the evidence linking Mr Freeman to the stolen

BMW and thereby to the Cruise aggravated burglary.

•

The application was refused.

Discussion

235. The counts concerning the Cruise aggravated burglary related to Mr Freeman only and as

we know those counts were severed from the indictment. It is difficult to see the basis in

law for such severance given the considerable nexus between the aggravated burglaries,

the use of stolen vehicles, the temporal nature of the burglaries and the modus operandi.

236. The issue concerning prejudicial material arose as a result of the cross-examination

conducted by counsel who appeared for Philip Roche at trial. Great care had been taken

Page 62 ⇓

to ensure that no link would be made between Mr Freeman and the Cruise aggravated

burglary. In order to achieve this, an admission was made that it would be unnecessary

for the respondent to prove that the BMW was stolen from Mr Cruise on the 13th April,

2012. There can be no doubt but that where Mr Freeman was charged with the Garvey

aggravated burglary, where the evidence was that the BMW was used in that burglary

and where it was alleged that he was involved in the stealing of that vehicle was all

relevant evidence and thereby admissible evidence. The suggestion that the admissibility

of such evidence is dependent on the party who elicits it is not correct.

237. If the evidence had been limited to the simple fact that the BMW had been stolen by Mr

Freeman, there would not be, in the context of a concerted course of violent aggravated

burglaries and where the vehicle was used in connection with the Garvey burglary, any

argument to be advanced on Mr Freeman’s behalf.

238. This is not a case with factual similarities to the decision in The People (DPP) v. McGrath

[2013] IECCA 12 where the Court found that the cross-examination resulted in evidence

which tended to blacken Ms. McGrath’s character and was thereby prejudicial. We can

see that the question asked which elicited the response from Mr Gammell that Mr

Freeman robbed the BMW was a relevant one. Counsel was cross-examining the

accomplice Mr Gammell regarding the burning of the BMW and as to why he was doing

that. He then asked why Mr Cahill had the BMW, from which came the impugned answer

implicating Mr Freeman in the stealing of the BMW and thus, it is argued, in the Cruise

aggravated burglary.

239. It is this latter aspect which causes concern. The question of the prejudice must be

viewed through the prism of the severing of the Cruise counts from the indictment.

Evidence is only admissible if it is relevant to issues in the proceedings. It is clear that

the line of questioning was relevant to the defence of Philip Roche as counsel was entitled

to test the credibility of the witness.

240. Evidence may be considered for many reasons to be prejudicial to an accused. The

question is whether it is so prejudicial so as to render a trial unfair and lead to the nuclear

option of a separate trial in the latter stages of a long trial. Whether evidence of bad

character is so prejudicial will depend on a number of circumstances. Such evidence will

not inevitably lead to a jury discharge or separate trials. Issues such as the nature of the

evidence in the context of the trial must be taken into account, what is prejudicial

regarding an accused on one set of facts may not be prejudicial against a different

accused on a different set of facts. An individual charged with a series of serious crimes,

for example, and where a minor previous conviction from many years prior emerges,

would not suffer the same prejudice as a person charged with a minor offence where

evidence of a conviction for a similar recent offence emerges, but we emphasise that each

case is entirely fact dependent and well within the province of a trial judge. Other factors

such as the circumstances leading to the potentially prejudicial evidence, the manner in

which and from whom the evidence emerges and whether the matter can be addressed

by appropriate directions from a trial judge are all relevant to the situation.

Page 63 ⇓

Conclusion

241. In the present case, where the indictment was severed insofar as Mr Freeman was

concerned on the Cruise counts, the evidence that he had stolen the BMW, which had

been stolen during the Cruise aggravated burglary, was evidence of bad character. The

fact that the jury were aware that the Cruise burglary had occurred three days prior

served to compound the prejudice caused to him. The clear implication was that Mr

Freeman was involved in the Cruise aggravated burglary. This placed him in the position

of not only being an alleged participant in the Garvey aggravated burglary, but also a

participant in an aggravated burglary closely connected in time and place to the offences

for which he was on trial.

242. While the trial judge made no mention in his charge of Mr Freeman stealing the BMW, and

while no requisition was raised regarding the vehicle, nonetheless the prejudice remained.

In those circumstances, we conclude that the trial judge erred in failing to order a

separate trial regarding Mr Freeman.

The Proviso

243. We have been urged by the respondent to apply what is commonly known as the proviso

should we conclude that the trial judge erred. Section 3 of the Criminal Procedure

Act,1993 provides for the jurisdiction of the Court of Appeal to affirm a conviction even

where an error has been identified if the Court considers that no miscarriage of justice

has actually occurred.

244. The relevant portion of section 3 (1) of the 1993 Act provides as follows: –

“On the hearing of an appeal against conviction of an offence the Court may –

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a

point raised in the appeal might be decided in favour of the appellant, if it considers

that no miscarriage of justice has actually occurred).”

245. The evidence against Mr Freeman at trial concerning the aggravated burglary of the

Garvey family was limited in his case to the evidence of the accomplice Mr Cahill. There

was no evidence capable of corroborating Mr Cahill’s testimony. Nor was there any

forensic evidence or any other circumstantial evidence linking Mr Freeman to these

offences. Consequently, this is not a case where the evidence aside from the impugned

evidence was overwhelmingly against this appellant. In those circumstances,

notwithstanding our view that the indictment should not have been severed in the first

instance, we are not satisfied to apply the proviso. In those circumstances, Mr Freeman’s

appeal must be allowed.

246. We do not need therefore to address the argument advanced on behalf of Mr Freeman

that evidence adduced in cross-examination by counsel for Philip Roche regarding money

owed to Mr Freeman by Mr Cahill and the basis for such a debt was prejudicial evidence

which should have given rise to a separate trial. For the sake of completeness, we are not

persuaded that this line of cross-examination gave rise to prejudice as asserted on his

behalf. On the contrary we consider that the evidence regarding the underlying reasons

Page 64 ⇓

for Mr Cahill’s involvement in the Garvey aggravated burglary to have been relevant and

therefore admissible evidence.

Discussion - Patrick Roche.

247. The prejudice contended for on behalf of this appellant again arose from the cross-

examination of Philip Roche and significantly differs from that of Alan Freeman. Two

issues arise:-

1) The evidence elicited that Christopher Stokes pleaded guilty and

2) The evidence that it would be incumbent on Mr Cahill to leave the country

once he completed his evidence.

248. On the first impugned issue, the argument is advanced on behalf of the appellant that the

evidence adduced in relation to Christopher Stokes’ guilty plea was highly prejudicial to

the appellant in the circumstances. He relies on the fact that he was arrested in the

vehicle shortly after the commission of the aggravated burglary at the Garvey house

where he was the passenger in the vehicle and Christopher Stokes was the driver of the

vehicle. It is argued that such evidence caused irreparable prejudice to the appellant and

served no purpose for the defence of Philip Roche.

249. The second issue also arose in the course of cross-examination of Mr Cahill by counsel for

Philip Roche. In this instance it is contended that the natural implication of the question

was that the appellants were dangerous and/or violent individuals and that Mr Cahill’s life

was endangered as a result of giving evidence in the trial.

250. Following the impugned question, counsel for Patrick Roche immediately applied for a

separate trial on the basis of both issues. Indeed, counsel for the respondent intervened

after the latter question was asked and queried the relevance of the line of cross-

examination and accepted that the question asked was an improper one. However, Mr

Costelloe argued that the trial judge could address the situation and ultimately the trial

judge ruled against granting separate trials. He was satisfied that clarity could be brought

to the proceedings by virtue of his charge wherein he indicated that the jury should not

engage in speculation or conjecture. In order to address the situation which had arisen by

virtue of the question asked, it was agreed that Mr Cahill should be asked as to whether

he had been promised any benefit by the State or from any other person as a result of

giving evidence. This question was asked by the judge in the absence of the jury, to

which Mr Cahill replied in the negative. He was then asked whether he intended to leave

the country as a result of fear deriving from the giving of evidence, to which he again

replied in the negative. Counsel for Patrick Roche and indeed Alan Freeman agreed that

the responses were of assistance. Ultimately, when the jury returned Mr Costelloe asked

the two questions to which he received answers in the negative from Mr Cahill.

251. Prior to the judge’s charge on day 21 of the trial, counsel made certain applications to the

trial judge and counsel on behalf of Patrick Roche voiced his concerns that any mention of

the fact that Christopher Stokes had pleaded guilty would serve to emphasise and

Page 65 ⇓

highlight the material. No specific mention was made of the question posed as to whether

Mr Cahill would leave the country. No requisitions were raised on either aspect following

the trial judge’s charge.

Conclusion

252. Firstly, we are entirely satisfied that the question posed regarding Mr Cahill’s intentions

following evidence was more than adequately addressed by the trial judge in the course

of the trial and wisely, counsel for Patrick Roche clearly took the tactical decision to leave

this matter rest. We are satisfied that no prejudice was caused to the appellant Patrick

Roche, or indeed to Alan Freeman in this respect.

253. It is certainly difficult to ascertain the rationale behind the question concerning Mr Stokes’

pleas of guilty, unless, in asking the question it was sought to place the blame four

square on the shoulders of Christopher Stokes. However, that as may be and accepting

that the question was improper, inadmissible evidence on occasion comes into a trial

either inadvertently or, fortunately less frequently, deliberately, such as in the present

case.

254. Even where inadmissible evidence finds its way into a case, discharging the jury or

granting a separate trial in respect of one or more appellants should be as a last resort

and only in the most extreme circumstances. A trial judge in considering applications of

this sort following the admission of inadmissible evidence should carefully analyse the

relevant facts and consider whether in the context of the particular facts, prejudice of the

kind which cannot be alleviated by appropriate intervention or directions of a trial judge

has been caused, thus rendering the trial unfair.

255. In the present case, we are satisfied that the evidence was not of such prejudice so as to

warrant the judge proceeding down the route of last resort and particularly so where the

impugned evidence came about on day 16 of the trial, thus leaving time for the evidence

to fade. Even absent the fade factor, we are not satisfied that the evidence was in any

event of the calibre of prejudice which would have warranted the jury to be discharged or

the granting of a separate trial. Moreover, the trial judge was asked to refrain from

making any reference to the evidence in order to avoid the risk of highlighting it. This

approach was, in our view, the appropriate one in the circumstances of the trial.

256. It is in the interests of justice where persons are charged with offences arising from the

same incident or with offences arising from a separate incident or incidents, but where

the offences are so connected, whether by time or place or other related factors, that

persons be tried together. This obviously applies where persons are charged as joint

offenders in pursuit of a common design, but it is by no means limited to such situations.

We are aware that, on occasion, prejudicial material can emerge during joint trials which

in almost all circumstances can be addressed by the appropriate directions of the trial

judge. As stated by Mahon J. in The People (DPP) v. Coughlan Ryan [2017] IECA 108 at

para. 18:-

Page 66 ⇓

“Inadmissible evidence finds its way into many trials, usually accidently and

inadvertently. When it does, its prejudicial effect will vary from case to case,

obviously very much depending on what has been stated to the jury or how it might

be interpreted by the jury. It is well established and long accepted that a jury

should only be discharged where the prejudicial effect is significant and it is not

possible to counter that prejudicial effect by suitably warning or directing the jury.

Juries have proven themselves time and time again to be willing and capable of

heeding judicial warnings and instruction and of acting appropriately in response

thereto.”

257. We are not persuaded that the trial judge erred, and this ground therefore fails.

258. Where co-defendants mount a cutthroat defence or indeed where a defence is pressed

which could have the effect of prejudicial impact on another defendant, it is the common

and preferred practice that the parties are alerted to this course and, if difficulties are

anticipated, that such difficulties are the subject of a ruling by the trial judge. A situation

such as arose in the present case is to be avoided at all costs. An approach by a

defendant to deliberately prejudice another defendant’s right to a fair trial, is to be

depreciated. The approach adopted on behalf of Philip Roche was, at times, difficult to

comprehend and the questions asked were on occasion, improper. However, due to

interventions by the respondent and counsel on behalf of the other appellants, and the

rulings of the trial judge, any prejudice was avoided save in the instance of fixing Alan

Freeman with stealing the BMW. In the interests of absolute clarity, it must be

emphasised that we are of the view, that significant prejudice was caused to him only in

the peculiar circumstances where the indictment was severed, and he was directly

implicated in the charges arising from a very similar aggravated burglary.

Singular grounds

Ground 3 of Patrick Roche- Detention of the appellant

The learned trial judge erred in fact and in law in finding the appellant's detention at

Mallow Garda Station and subsequent detention at Henry Street Garda Station pursuant

to section 50 of the Criminal Justice Act 2007 on the 17th April 2012 lawful.

Detention at Mallow Garda Station

259. Following the aggravated burglary at Sunville House, (the Garvey home), the appellant

was arrested on the 16th April 2012 pursuant to s.15 of the Criminal Justice (Theft and

Fraud) Offences Act, 2001, detained in Mallow Garda Station overnight, charged and

released on bail. He was immediately arrested on suspicion of committing an offence

contrary to s. 73 of the Criminal Justice Act 2006; namely, the commission of an offence

for a criminal organisation and was detained at Mallow Garda Station pursuant to section

50 of the Criminal Justice Act 2007. The appellant was later transferred to Henry Street

Garda Station where he was further detained, pursuant to section 50 of the Criminal

Justice Act 2007.

260. During the course of the trial, counsel for the appellant sought to have the appellant’s

detention pursuant to s.50 of the 2007 Act declared unlawful. It was contended that the

Page 67 ⇓

member in charge of Mallow Garda Station, Garda Hosford, did not have reasonable

grounds for believing that Patrick Roche’s detention was necessary for the proper

investigation of the offence for which he had been arrested.

The Evidence

261. Detective Garda John O’Connell gave evidence concerning the appellant’s arrest and

arrival at Mallow Garda station. He introduced him to the member in charge, Garda

Hosford, and said that he informed Garda Hosford that he had arrested the appellant for

an offence under section 73 of the Act on suspicion of the commission of a serious offence

for the benefit of, or direction of, or in association with a criminal organisation; namely to

commit an aggravated burglary at Sunville House.

262. He requested that Garda Hosford detain Patrick Roche pursuant to the provisions of

section 50 of the Criminal Justice Act 2007 for the proper investigation of the offence. He

said that he gave Garda Hosford details of the aggravated burglary including that Patrick

Roche was arrested following a chase at speed and that upon searching the vehicle in

which they were travelling, the Gardaí discovered two balaclavas, handcuffs and US

dollars. Detective Garda O’Connell then went on to say as follows: –

“…Judge I didn't have to say anything to Garda Hosford. In the course of general

conversation between two colleagues, it was quite apparent to me that he had

knowledge of Patrick Roche himself, and I didn't have to inform him any of other

details, other than the outline that I have given you there in relation to the section

50. I didn't actually inform him anything else of him, he was familiar with him. He

had been just arrested in the area in relation to a separate matter”

263. Garda Hosford then gave evidence to the Court that he was informed of the offence for

which the appellant had been arrested; namely an aggravated burglary at Sunville House

on 16th April 2012 contrary to section 73 of the Criminal Justice Act 2006. He then stated

that Detective Garda John O’Connell made an application to him to have the appellant

detained pursuant to section 15 of the 2007 Act and that he outlined the grounds relating

to such application. Garda Hosford then proceeded to set out those grounds and then

stated as follows:-

“There was also the belief that he was part of a criminal organisation carrying out

this alleged offence. So after having heard the grounds from Detective Garda John

O'Connell, I was satisfied myself that the detention was lawful and necessary for

the proper investigation of the offence for which he was arrested for.”

264. The substance of the issue before the trial court and before this Court was predicated

upon a response by Garda Hosford to a question asked of him by counsel for the appellant

in the following terms: –

“Q. Just to be clear on this. Are you saying that Garda John O'Connell put this

factor of a belief, that Mr Roche was a member of criminal organisation before you

Page 68 ⇓

as part of his grounds upon which he was seeking to have you make a decision to

detain Mr Roche?

A. That belief was garnered from the offence for which he was arrested for under

section 73 of the Criminal Justice Act 2006.

Q. That is the source of that belief?

A. Yes.”

The Submissions

265. Counsel for the appellant submitted that the detention was unlawful because Garda

Hosford based this belief on the nature of the offence for which the appellant was

arrested. Mr Delaney SC for the appellant argued that the key feature which triggers the

substantially more lengthy periods of detention than would be permitted pursuant to s. 4

of the 1984 Act, is the involvement in the criminal organisation. In those circumstances,

he contends that the state of mind of the member in charge of the Garda station must

encompass not only his belief that the suspect may have committed a serious offence, (in

the present case, aggravated burglary) but also the belief that such involved a criminal

organisation. He argued in substance that the member in charge cannot rely on the fact

that the arrest was made pursuant to section 73 of the 2006 Act.

266. Mr Delaney relies on the dicta of Hardiman J. in The People (DPP) v. Birney [2007] 1 IR

337, where he said: –

“This Court is of the view that it was clearly the intention of the Oireachtas that the

member in charge of a Garda Station in circumstances where he is asked to detain

a prisoner for the purpose of investigation of an offence pursuant to s. 4 should not

merely be a rubber stamp. The role of the member in a charge involves both a

subjective and objective element and subjectively he must believe that the

applicant’s detention is necessary and objectively must be satisfied that there are

reasonable grounds for his belief.”

267. Mr Delaney accepted that grounds were furnished to the member in charge but that no

information was given to him regarding the development of a criminal organisation.

268. Mr Delaney further submits that in giving his ruling, the trial judge misstated evidence

when he referred to Garda Hosford’s evidence and that Detective Garda O’Connell

informed him of a belief that the appellant was part of a criminal organisation carrying out

the alleged offence. He submits that the reply given by Garda Hosford in cross-

examination effectively wiped out that evidence, leaving the garnering of the belief from

the offence for which the appellant was arrested.

269. In response, it was argued on behalf of the respondent that the height of the appellant’s

complaint is the contention that there was insufficient evidence to enable the trial judge

to conclude that the member in charge had the requisite reasonable belief necessary

pursuant to section 50 (2) of the 2007 Act to authorise the appellant’s detention.

Page 69 ⇓

270. Mr Costelloe argues that not only was the member in charge furnished with the

information which gave rise to the appellant’s arrest but he was also informed that he was

arrested on suspicion of committing a section 73 offence and that having heard all that

material, Garda Hosford was in a position to form his own belief that it was appropriate to

detain him pursuant to s. 50.

The trial judge’s decision on the lawfulness of the detention

271. In ruling the detention of the appellant at Mallow Garda Station lawful, the trial judge

held that:-

“The member in charge must be satisfied of course on the basis for the belief

advanced in relation to an offence. So, for example, if somebody was brought in on

suspicion of a section 4 assault, one would presume that the member in charge

would have to be satisfied in relation to the injuries allegedly suffered by a

complainant or a victim, the suspected involvement of the person brought in, and

brief details in relation thereto must be furnished. It must be sufficient that this

information is explained to a member in charge. But to go further than that would

possibly move the member in charge from his role as member in charge into a role

of interfering or carrying out an investigation into an offence, and that is not what

the statue at section 50 of the 2007 Act envisages. Garda Hosford said in his direct

evidence that Detective Garda O'Connell gave grounds for his suspicion and he set

out those grounds and they included the moustache for example, descriptions of

the incident. I think there was reference to Mallow also or sorry, when I say

Mallow, I mean Buttevant. But there were details given in relation to the

Pallasgreen Sunville incident. But he also said in his direct evidence that Detective

Garda O'Connell included in his grounds for suspicion a belief that Mr Philip Roche

was part of a criminal organisation, or words to the effect. So I'm satisfied that,

when the interaction was taking place between Garda Hosford and Detective Garda

O'Connell, that that was a part of the information which was transferred from one

to the other. Whilst I'm critical of Garda Hosford using Detective Garda O'Connell's

statement at a much later stage as an aide memoire, I'm satisfied that as he said

himself in cross-examination, that he did remember the incident but he didn't

remember the fine detail. I'm satisfied with the information that he had at the

time, albeit limited. I'm satisfied that that information was capable of giving him

reasonable grounds in order to effect a detention. This finding is on the basis of

Garda Hosford's evidence, as I said earlier, that Detective Garda O'Connell told him

that he believed that Mr Roche was part of a criminal organisation, and I think that

it's a reasonable inference open to him, in all of the circumstances where there was

a charge under section 73, bearing in mind that it seems, on the basis of the

evidence given by Garda Hosford in cross-examination, that he was familiar with

the provisions of section 73, and they of course deal with the commission of an

offence for a criminal organisation. I'm satisfied in those circumstances that he had

reasonable grounds and I'm satisfied that the detention is therefore, or was

therefore valid.”

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Discussion

272. The relevant portion of section 73 of the Criminal Justice Act 2006 provides as follows:-

“73 – (1) A person who commits a serious offence for the benefit of, at the

direction of, or in association with, a criminal organisation is guilty of an offence.”

273. Section 50 (2) of the Criminal Justice Act 2007 provides: –

"(2) Where a member of the Garda Síochána arrests without warrants, whether in a

Garda Síochána station or elsewhere, a person (in this section referred to as “the

arrested person”) he or she, with reasonable cause, suspects of having committed

an offence to which this section applies, the arrested person –

(a) if not already in a Garda Síochána station, may be taken to and detained in a

Garda Síochána station, or

(b) if he or she is arrested in a Garda Síochána station, maybe detained in the

station,

for such a period or periods authorised by subsection (3) if the member of the

Garda Síochána in charge of the station concerned has at the time of the arrested

person’s arrival at the station or his arrest in the station, as may be appropriate,

reasonable grounds for believing that his or her detention is necessary for the

proper investigation of the offence.”

274. Garda Hosford was provided with information which led to the arrest of the appellant. It is

not the appellant’s case, and nor could it be suggested that Garda Hosford was provided

only with the fact that the appellant was arrested and the section pursuant to which he

was arrested. Mr Delaney accepts that information was given to Garda Hosford concerning

the material which led to the appellant’s arrest, however he says that there was in effect

no evidence of an involvement with the criminal organisation sufficient to ascribe to Garda

Hosford reasonable grounds for believing that the detention was necessary for the proper

investigation of the offence.

275. It is necessary to carefully examine the wording in section 50(2) (b) which requires the

member in charge to have reasonable grounds for believing that the detention is

necessary for the proper investigation of the offence. In those terms, section 50 (2)

replicates the terms of section 4 of the Criminal Justice Act 1984. In order to validly

detain an individual pursuant to section 50 of the 2007 Act, it is necessary for the

member in charge of the Garda station to have reasonable grounds for believing that the

individual’s detention is necessary for the proper investigation of the offence. It is correct

to say that the member in charge cannot rubberstamp the request of the arresting

member to detain a suspect. This was clearly stated in The People (DPP) v. Birney

[2007] 1 IR 337. A member in charge must form his belief independently that the detention is

necessary; that is, he must come to this conclusion independently in his own mind. This

of course does not mean that he cannot base his decision on foot of information which

has been furnished to him by the arresting member of An Garda Síochána. Equally, he is

not precluded from relying upon information which he may have had prior to the arrest of

Page 71 ⇓

the person to be detained. The important aspect is that he independently come to a

conclusion as to the necessity to detain a suspect and he must have reasonable grounds

for so doing. The member in charge may therefore take into account information which he

receives from the arresting member, information which the member in charge may have

had in his or her possession and information which comes about in the course of

completing the custody record.

Conclusion

276. In the present case, the member in charge was aware of the offence for which the

appellant had been arrested, it was not the position that he knew only of the section

pursuant to which the appellant had been arrested. He was aware of the precise terms of

the offence, the nature of the “serious offence”, namely; an aggravated burglary at

Sunville House on 16th April 2012. Moreover, in direct evidence, having detailed the

grounds as outlined to him by Detective Garda O’Connell, he also stated that there was

the belief that the appellant was part of a criminal organisation in carrying out this

offence. Significantly, he then stated:-

“So after having heard the grounds from Detective Garda John O’Connell, I was

satisfied myself that the detention was lawful and necessary for the proper

investigation of the offence for which he was arrested for.” (our emphasis).

277. The contention on the part of the appellant that the subsequent cross-examination, and in

particular the answer to a question regarding the origin of the belief of involvement in a

criminal organisation, obliterated the evidence that there was a belief that the appellant

was part of a criminal organisation cannot be correct. The member in charge gave very

clear evidence that he was satisfied that the detention was necessary for the proper

investigation of the offence for which the appellant had been arrested. He gave that

evidence in the full knowledge of the offence for which the appellant had been arrested,

the nature of the alleged criminal activity, the circumstances of his arrest and in the

knowledge he had been requested to detain the appellant pursuant to section 50 of the

2007 Act.

278. Therefore, we do not find that there was an error in the trial judge’s decision that the

appellant’s detention pursuant to section 50 of the 2007 Act was lawful.

Detention at Henry St Garda Station

279. Whilst no argument was advanced in the oral hearing in respect of the appellant’s

detention at Henry St. Garda Station, in written submissions it is contended on behalf of

the appellant that his continued detention was unlawful as the subsequent members in

charge misunderstood the nature of the offence for which the appellant had been

detained. This application was predicated on the evidence of Sergeant Keating and

Sergeant Hennessy who were members in charge at Henry Street Garda Station at the

time. During the course of cross-examination, Sergeant Hennessy, when asked what did

he understand the appellant’s detention to be, stated:

“He was detained for section 50 of the Criminal Justice Act 2007, for aggravated

burglaries where a firearm was used.”

Page 72 ⇓

280. Counsel for the appellant submitted that as the members in charge were of the erroneous

view that this was an aggravated burglary investigation, they were not therefore in a

position to make an appropriate and adequate assessment of the investigation within

terms of discharge of their functions as members in charge.

281. The trial judge in ruling that the detention was lawful, held that:-

“Mr Sammon makes reference to Mr Justice Clarke's views, obiter views on the DPP

v. Roche. And it seems to me that they seem to require of the member in charge

in section 4 detentions under the 1984 Act, a somewhat higher standard of care

when assessing whether reasonable grounds exist justifying continued detention.

In that they believe in that he believes that negative circumstances may also

trigger an event happening, which event would trigger release. And it seems to

me, in the context of that comment that he reaches that view in circumstances

where nothing much by way of investigation is happening during the period of the

prisoner's detention. And it is entirely understandable that view would be reached

in circumstances where somebody was just being held and there was nothing being

done; that would be most unfair and it would be an abuse of a person's liberty in

the grossest way. In this particular case, however - I'm now speaking of the case

before this Court - I'm satisfied that there was a significant amount of investigation

taking place on an ongoing basis and that - this is the important point I think - the

member in charge knew and was aware that there was significant investigation

being carried out on an ongoing basis in relation to the alleged commission of the

offence. In that respect, what supports my being satisfied in relation to that is the

fact that there were 25 interviews that took place over the period of detention.

There was an application in respect of photographs being taken of the suspect,

swabs, fingerprints being taken. And also, most importantly, there were a number

of extension periods which were granted both by senior members of An Garda

Síochána and the District Court. So, even if I applied the logic of Mr Justice Clarke

in this particular case, I would still find that the detention was lawful.”

Submissions of the appellant

282. The appellant submits that due to the misunderstanding of the members in charge in

Henry Street Garda Station in respect of the nature of the offence for which the appellant

was detained, they were unable to comply with the statutory requirements of s. 50 of the

Criminal Justice Act 2007 as they did not have any regard to the element of a connection

to a criminal organisation pursuant to s. 73 of the 2006 Act.

283. The appellant submits that the trial judge failed to address the evidence that the

members in charge in Henry Street Garda Station had misapprehended the nature of the

offence for which the appellant had been detained.

Submissions of the respondent

284. In relation to the actions of the subsequent members in charge, the respondent submits

that their powers to release the person in custody are a negative power to be exercised

Page 73 ⇓

where there are no longer grounds to detain the person for the offence to which the

detention relates.

Discussion and Conclusion

285. Subsequent members of an Garda Síochána who replace the initial member in charge of

the Garda station must ensure compliance with the Treatment of Persons in Custody

Regulations 1987, as amended. Moreover, if there are no longer reasonable grounds for

suspecting the suspect of committing an offence which falls within section 50, he must be

released from custody immediately unless his detention is authorised apart from the 2007

Act. In this regard section 50(6) of the 2007 Act provides as follows: –

“If at any time during the detention of a person pursuant to this section there are

no longer reasonable grounds for believing that his detention is necessary for the

proper investigation of the offence to which the detention relates, he or she shall,

subject to subsection (7), be released from custody with unless he or she is

charged or cause to be charged with an offence and is brought before the court as

soon as may be in connection with such charge or his detention is authorised apart

from this Act.”

286. Therefore, if the detention of the suspect is no longer necessary for the proper

investigation of the offence, a detainee must be released. However, there was no

suggestion on the evidence that the investigation was not ongoing. Furthermore,

following the detention of the suspect on foot of reasonable grounds on his or her initial

arrival at a Garda station, it requires something more to trigger an action releasing the

detainee pursuant to section 50 (6) of the 2007 Act. As stated by Charleton J. in The

People (DPP) v. Roche [2015] IESC 67 at para. 32:-

“The trial judge concentrated on one aspect of s.4, as to the absence of evidence,

but did not consider the conditional nature of the requirement for release. That

condition in the legislation is entirely explicable and it logically flows from the

scheme of detention whereby there should be an initial enquiry on ‘arrival at the

station’ and whereby detention should only be authorised on reasonable grounds

but, once that is done, it requires the occurrence of a further event, whereby the

failure to release renders unlawful the continued detention of a prisoner because of

something happening. That could be new information.”

287. Thus, once the initial detention was lawful, unless some further event took place, the

continued detention was lawful.

Grounds 4, 6, 7 & 17 of Patrick Roche - Inferences

4. The learned trial judge erred in law and in fact in permitting the prosecution to

invite the jury to draw inferences from the appellant's failure to answer questions

under sections 18 & 19 of the Criminal Justice Act 1984 as amended, in

circumstances where the Gardaí had not questioned the appellant in respect of the

offence he was arrested for.

Page 74 ⇓

6. The learned trial judge erred in law in permitting the prosecution to invite the jury

to draw inferences from the appellant's failure to answer questions pursuant to

sections 18 & 19 of the Criminal Justice Act 1984, in circumstances where the

appellant was not on trial for the offence in respect of which inferences had been

put.

7. The learned trial judge erred in law in permitting the prosecution to adduce

evidence, pursuant to S.19A of the Criminal Justice Act 1984 as amended, of the

appellant’s failure to mention during interview facts relied on in his defence, in

circumstances where the appellant had not and did not subsequently rely on any

such facts.

17. The learned trial judge erred in law in permitting the prosecution to adduce

evidence, pursuant to S.18 of the Criminal Justice Act 1984 as amended, of the

appellant’s failure to answer questions in respect of objects purportedly found in his

possession, in circumstances where it was a matter for the jury as to whether those

objects were in his possession.

Grounds 4 and 6

288. In the concluding stages of the appellant’s detention at Henry Station Garda Station, the

provisions contained in ss. 18, 19, and 19A of the Criminal Justice Act 1984, as amended,

were invoked.

289. During the course of the trial, counsel for the appellant sought to have the memorandum

of interview excluded where the above provisions were invoked on the basis that the

appellant had been arrested on suspicion of an offence contrary to section 73 of the

Criminal Justice Act 2006 and was charged with and on trial for the offences, inter alia, of

aggravated burglary and false imprisonment. Consequently, the argument was and is

advanced that the respondent could not seek to rely on the provisions of the 1984 Act, as

amended, as the appellant was not questioned in respect of the offence for which he was

arrested and secondly, was not on trial for the offence for which he had been arrested.

Grounds 4 and 6 arise from this argument and can be addressed together.

290. When the matter was canvassed at trial, the trial judge refused to accept this argument

and held that:-

“I am satisfied that in all the circumstances it is perfectly reasonable and proper

that Detective Garda O'Connell questioned the accused about the serious offence he

believed that the accused had committed, namely, the aggravated burglary, and I

do not believe that it need to have gone any further than that. I do not believe

that there was a necessity for there to be any references, specific or otherwise, in

relation to section 73 arrest. The burglary, the aggravated burglary constitutes, in

my view, a serious offence and that is something which is specifically referenced in

the provisions of section 73. This also deals, I believe, with a niche point made by

Mr Lynam regarding the section 18, subsection 1, requirement under the 2007

Criminal Justice Act, which of course amends the 1984 Act, in relation to the

Page 75 ⇓

proceedings against a person for an arrestable offence, where the suggestion was

that the inferences asked to be drawn flow from an investigation into an offence of

aggravated burglary. As I said, the aggravated burglary constitutes in my view an

element of the section 73 offence, which was the arrestable offence, and that

constitutes a serious offence under subsection 1 of section 73”

Submissions of the appellant

291. The appellant submits that it is not permissible to adduce evidence arising from an

interview with an accused where ss.18 and/or 19 of the 1984 Act, as amended, are

invoked where the questions asked related to an offence other than the one for which the

person was arrested or is on trial. The adverse inference provisions were invoked when

the appellant was questioned about the commission of an offence contrary to s.73 of the

Criminal Justice Act, 2006. Therefore, the resulting interview was not admissible in the

trial for aggravated burglary.

292. The particular nature of an offence contrary to s. 73 may have influenced the appellant’s

decision not to answer the questions. It is submitted that the appellant may also have

had regard to the fact that he was asked very little about the criminal organisation aspect

of the offence. It was not permissible to invoke the inference provisions when the

appellant had already offered an explanation of the circumstances whereby he came to be

stopped by the Gardaí.

Submissions of the respondent

293. The respondent submits that the arrest under section 73 related to a serious offence i.e.

aggravated burglary and the questions asked of the appellant related thereto and the

ruling of the trial judge does not fall foul of The People (DPP) v. Wilson [2017] IESC 53 as

that was a situation where the appellant was questioned for the offence of the unlawful

discharge of a firearm and was tried for burglary. There is a direct connection between

the offence for which the appellant was arrested and the offence for which he was tried.

294. Critically, unlike The People (DPP) v. Wilson [2017] IESC 53, the solicitor for the appellant

would have been able to give full legal advice, including the possibility of being charged

with aggravated burglary simpliciter particularly when the questions, having been

provided in advance, focused heavily, and repeatedly on aggravated burglary with none of

the inference questions relating to the criminal organisation aspect.

295. The respondent rejects the contention that ss. 18 and 19 should be strictly interpreted,

and the judgment of McKechnie J. in The People (DPP) v. A. McD [2016] 3 IR 123 makes

clear that an absolute strict interpretation is not required and to do so would void the

provisions of their utility. As the questions concerned the aggravated burglary, the

safeguard of legal advice was maintained.

The Sections

296. The relevant portions of section 18 of the 1984 Act as amended provide as follows:

“(1) Where in any proceedings against a person for an arrestable offence evidence is

given that the accused –

Page 76 ⇓

(a) at any time before he or she was charged with the offence, on being

questioned by member of the Garda Síochána in relation to the offence…

was requested by the member to account for any object, substance or mark, or any mark

on any such object, that was–

(i) on his person,

(ii) in or on his or her clothing or footwear,

(iii) was in his possession, or

(iv) in any case in which he or she was during any specified period,

and which the member reasonably believes that may be attributable to the

participation of the accused in the commission of the offence and the member

informed the accused that he or she believes, and accused failed or refused to

give an account, being an account which in the circumstances at the time clearly

called for an explanation from him or her when so questioned, charged or

informed, as the case may be, then, the court, in determining whether a charge

should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether

there is a case to answer and the court (or, subject to the judge's directions, the

jury) in determining whether the accused is guilty of the offence charged (or of

any other offence of which he or she could lawfully be convicted on that charge)

may draw such inferences from the failure or refusal as appear proper; and the

failure or refusal may, on the basis of such inferences, be treated as, or as

capable of amounting to, corroboration of any evidence in relation to which the

failure or refusal is material.”

297. The section then goes on to address these safeguards, which includes the right to consult

a solicitor and, other than when such right was waived, that the accused had an

opportunity to consult with his solicitor.

298. Section 19 concerns adverse inferences which may be drawn from a failure or a refusal to

account for one’s presence at a particular place in any proceedings against a person for

an arrestable offence where at any time before being charged with the offence, on being

questioned by a member of Gardaí in relation to the offence, and on being requested to

account for his presence at a particular place, fails or refuses to give an account.

299. Section 19A of the 1984 Act, as amended, concerns inferences which may be drawn from

a failure to mention any fact subsequently relied upon in his or her defence in proceedings

for an arrestable offence.

Discussion

300. When the appellant was arrested on the evening of 16th April 2012 for the offence of

possession of articles, he was detained pursuant to section 4 of the Criminal Justice Act

1984, questioned and released on bail. He was then arrested for an offence contrary to

section 73 of the Criminal Justice Act 2006, which is laid out above.

Page 77 ⇓

301. He was detained pursuant to the provisions of section 50 of the Criminal Justice Act 2007

and interviewed. Two interviews took place during the latter stages of the detention in

which the adverse inference provisions were invoked. The first of these interviews

commenced at 15.58 on 23rd April 2012, in the usual manner, with the caution being

administered at which point the appellant was advised that the Gardaí intended to rely

upon the adverse inference provisions. No issue is taken with the manner in which the

provisions were invoked. Having read section 18 of the 1984 Act as amended by section

28 of the Criminal Justice Act 2007, the interviewing Garda then said: –

“I will now explain to you in ordinary language the questions that I wish to ask you.

I reasonably believe that your possession of an object(s) that I am going to ask you

about is directly related to your involvement in the aggravated burglary at Sunville

House, Pallasgreen, Limerick on the 16th April 2012.

I also believe that you failed or refused to give an account, being an account which

in the circumstances at the time clearly calls for an explanation from you for your

possession of this/these object(s) that I believe is directly related to the aggravated

burglary at Sunville House, Pallasgreen Limerick on 16th April 2012.

Q. Do you understand that?

A. No comment.

Q. Is there anything you want to ask?

A. No comment”.

302. There followed an explanation and examples given of an inference and the potential

consequences for failure or refusal to give an account. Thereafter, the Gardaí set out the

objects about which they intended to question the appellant, including; balaclavas,

gloves, screwdriver, jacket, handcuffs, US dollars and clothing containing glass fragments

from the scene of an aggravated burglary at Sunville House on 16th April 2012.

303. It was then indicated to the appellant that the Gardaí would ask these questions and he

was not to answer until he had the opportunity to consult with his solicitor. The specific

questions were then read out to the appellant and at the conclusion of the series of

questions regarding each of the above objects, reference was made to an aggravated

burglary at Sunville House on 16th April 2012. The same procedure was followed

concerning section 19 and section 19 (a) of the 1984 Act.

304. The interview concluded with the appellant signing the interview, timed at 16.44 hours.

The appellant was then given an opportunity to consult with a solicitor and the next

interview commenced on the same date at 18.19 hours. The adverse inference provisions

were invoked and to each question the appellant made no comment. That interview was

signed and concluded at 18.38 hours.

The argument that the appellant had provided an account

Page 78 ⇓

305. On behalf of the appellant it is submitted that not only was the use of the adverse

inference provisions impermissible in the circumstances but also that the contents of the

interviews were inadmissible in circumstances where the appellant had already provided

an account.

306. In general terms, when the appellant was interviewed prior to the adverse inferences

being invoked, when asked questions about the objects outlined above, he indicated that

he knew nothing about them. The point is made on behalf of the appellant that he did

answer questions and gave an account of being with Christopher Stokes but that he did

not notice and did not know anything about the items which were found in the car when

he was arrested by the Gardaí shortly after the aggravated burglary at Sunville House.

307. It is suggested on behalf of the appellant that in the latter stages of the interviews before

the first provisions were invoked that when asked: –

“Do you accept that the handcuffs found in your car … That you were stopped and

were used to tie members of the Garvey family?”

While he made no comment, this was in circumstances where, when these questions had

previously been put to him, he replied

“Oh God, no. Jesus, no, I wouldn’t do something like that”

308. Furthermore, in oral submissions, Mr Delaney SC for the appellant pointed out some 17

interviews, at the point when the adverse inference provisions were invoked, that the

appellant had provided an explanation regarding the circumstances whereby he came to

be stopped in the vehicle on the night in question by members of An Garda Síochána. He

submitted that the account provided by the appellant involved him stating to the Gardaí

repeatedly:-

“I took a train from Dublin to Cork that day. I was picked up at Kent Station in my

cousin’s BMW. That is Christopher Stokes. He was driving the car. We went to a

location in Knocknaheeny to do something about the horse and then we started to

drive around the country.”

309. It seems that the drive around the country concerned searching for female company. Mr

Delaney submits that the appellant was repeatedly asked to give an account and he

repeatedly provided that account. He submits that therefore it was not permissible to

invoke the adverse inference provisions where an explanation had already been given in

respect of these suspicious circumstances, the finding of items or an accused presence at

a particular place simply on the basis that the Gardaí do not accept the explanation. In

this respect he relies on the decision of The People (DPP) v. A. McD [2016] 3 IR 123. In

fact, in the decision of the Supreme Court in A.McD, when considering whether the

answers given by the respondent precluded the use of s. 19 of the Act, McKechnie J.

stated at p. 161:-

Page 79 ⇓

“More important is the definition of “an account” for the purposes of this section. In

The People (DPP) v. Devlin [2012] IECCA 70, (Unreported, Court of Criminal

Appeal, 6 July 2012), the Court of Criminal Appeal held at p. 30 that while the

accused persons explanation for the presence in his jacket of the knife and cheap

“may or may not” have been satisfactory, nonetheless it was an answer to the

question asked regarding his possession of those items. It thus did not amount to a

failure or refusal to account. As above-mentioned, Fennelly J. stated at p. 14 that s.

18 “does not apply where an account of any kind has been given”. As ss. 18 and 19

of the 1984 Act are identical in their operation it will be difficult to say that an

interpretation of one such provision would not apply to the other. Therefore it might

usefully be asked what the court intended by this observation.”

310. Having then considered the provisions in s. 2 (4) (b) of the Offences Against the State

(Amendment) Act 1998 and s.52 (2) of the Offences Against the State Act 1939,

McKechnie J. went on to say in considering s. 19 of the 1984 Act: –

“Neither in the express language of the section law in the judgement of the Court of

Criminal Appeal in The People (DPP) v. Devlin [2012] IECCA 70, (Unreported, Court

of Criminal Appeal, 6 July 2012) is any reference to an account needing to be

coherent or rational, or any suggestion that an account which is demonstrably false

and misleading shall be regarded as a non—account. Notwithstanding that, it seems

to me that if this statement of the Court of Criminal Appeal is to be taken literally,

such that any account would be sufficient to prevent the application of ss. 18 and

19 of the 1984 Act, it could easily become effortless for an accused person to

circumvent the operation of those provisions. It surely cannot be the case that a

person being investigated in respect of an arrestable offence can nullify the

operability of this statutory provision by simply giving any manner of accounts,

however plainly unrelated or potentially farcical it may be. To hold otherwise would

be to enable such a person apprised of this fact to avoid the provision of its utility.

It is equally apparent, however, that the views of the investigating gardaí cannot be

determinative of whether an account has or has not been given for the purpose of

this section. They cannot seek to invoke its charm simply because they do not like

an account is given, or because they do not regard it as satisfactory, or because

they do not think it sufficiently explains the person’s presence at that location.

Furthermore, the issue of credibility is not for them. Therefore the interviewer

cannot be arbiter in that provision. However, it must be the case that the minimum

level of plausible engagement is required before an account can satisfy the

requirements of s. 19 of the 1984 act. While that necessarily will be will involve

consideration of the entirety of the circumstances presenting each case.”

311. Mr Delaney argues that the trial judge did not engage with the issue of whether or not the

account provided met the plausibility threshold. In this respect, when ruling on the

admissibility of the interviews where the adverse inference provisions were invoked, the

trial judge indicated that it was open to the appellant when repeatedly asked the same

question to indicate that he had already replied to that question.

Page 80 ⇓

312. The respondent rejects the contention of the appellant that the inference provisions could

not arise at all in his case where he had given an “account” and relies on The People

(DPP) v. A. McD [2016] 3 IR 123, where it was held that not just any answer will suffice,

and the determination of whether the answers provided were a failure or refusal to give

an account is for the court to decide. The respondent submits that the account given by

the appellant in the context of how he came to be arrested and the items found in his

possession was lacking in merit as it did not address his possession of the items in

question in any real sense. It is submitted that it was well within the trial judge’s right to

permit the jury to draw their own conclusions from the evidence.

313. On this discrete point, even if the trial judge did not engage with the plausibility

threshold, this is not a paramount consideration in this case when one considers the

entirety of the presenting circumstances.

Conclusion on issue of whether the appellant had provided an account

314. The central question is whether the answer repeatedly given by the appellant in the

interviews leading to the interviews where the adverse inference provisions were invoked

was such so as to prevent the use of sections 18 and 19 of the 1984 Act, as amended.

The inference provisions only apply where there is a failure or refusal to provide an

account which in the prevailing circumstances, clearly called for an explanation at the

time of questioning.

315. The appellant was asked to account for items found in the vehicle at the time of his arrest

at Buttevant, Co. Cork shortly after the Garvey aggravated burglary. These items included

balaclavas, gloves, handcuffs, handcuff keys, US dollars and clothing containing glass. He

was also asked to account for his presence at Buttevant on 16th April 2012.

316. Evidently, the appellant’s presence in the area of the aggravated burglary on the relevant

date shortly after the aggravated burglary and where items were found not only in the

vehicle in which he was travelling but also on his person called for an explanation from

him when questioned. This critical issue had to be evaluated in the circumstances which

existed when the appellant was asked for such an account. At that time, the Gardaí had

stopped the appellant in suspicious circumstances, proximate to the Garvey house and

proximate in time to the aggravated burglary. Coupled with the items found in the

vehicle and on his person, an explanation was called for. The account given repeatedly by

the appellant was a most general account which was not, in our view, a plausible one. The

account that the appellant was collected at Kent Station by Christopher Stokes and that

they went driving around the country seeking female company and/or were out “lamping”

is an implausible explanation in the circumstances in which the vehicle was stopped. We

are not persuaded there is any merit in this argument.

Correspondence between the offence for which the appellant was arrested and the

offence for which he was tried.

317. In the first interview where the adverse inference provisions were invoked, specifically s.

18 of the Act, the interviewing member of An Garda Síochána prior to explaining to the

appellant the questions he intended to ask him said:-

Page 81 ⇓

“I will now explain to you in ordinary language the questions that I wish to ask you.

My reason would be the possession of an object or objects that I'm now going to

ask you about is directly related to an involvement in aggravated burglary at

Sunville House, Pallasgreen, Limerick, on the 16th of April 2012.”

318. Thus, it is clear that the member of An Garda Síochána intended to question the appellant

about objects related to the appellant’s alleged involvement in the aggravated burglary at

Sunville House. Prior to invoking the provisions of sections 19 and 19A of the Act, the

interviewing Garda prefaced the proposed questions in each instance by reference to the

aggravated burglary at Sunville House.

319. The circumstances of the present case where the adverse inference provisions were

invoked are quite distinct from those in the decision of The People (DPP) v. Wilson

[2017] IESC 53. In that decision, in the context of invoking section 19 of the Act, the

interviewing Garda stated that he was of the reasonable belief that the appellant’s

presence at the stated location was “to participate in and carry out the unlawful discharge

of a firearm at 56 Dromheath Drive, Mulhuddart, Dublin 15.” Mr Wilson was ultimately

charged with the offence of burglary.

320. The present case can be distinguished from the facts in Wilson for a number of reasons. It

must be remembered that the appellant was arrested for an offence contrary to section

73 of the 2006 Act and a constituent element of that offence is that of the commission of

a serious offence. In the present case, the serious offence was that of the aggravated

burglary at Sunville House. When the appellant was arrested for an offence under that

section, he was informed that he was being arrested on suspicion of committing the

offence of aggravated burglary in association with a criminal organisation.

321. Furthermore, throughout the entirety of his detention pursuant to section 50, and some

17 interviews, he was questioned about this aggravated burglary. It is quite clear

therefore that the appellant was fully aware that central to his detention was the

aggravated burglary at Sunville House.

322. In The People (DPP) v. Wilson [2017] IESC 53, Mr Wilson was arrested on suspicion of the

unlawful discharge of a firearm and he was questioned in relation to that offence and the

adverse inference provisions were invoked in that respect. Subsequently, Mr Wilson was

charged and tried on a count of burglary. In the course of Mr Wilson’s detention and

interviews, no reference was made to a burglary offence. Whilst the factual background

concerning the firearms offence and the burglary offence were the same, in circumstances

where he was tried for burglary, an entirely separate offence, the Supreme Court found

that the adverse inference provisions could not be invoked in respect of an offence with

which the accused person was not ultimately charged. McKechnie J. emphasised the

importance of the carefully structured safeguards within the legislation. He observed at

p.21: –

“…the right to consult a lawyer would be utterly hollow: giving advice on an offence

which his client was not ultimately on risk of would be useless. More significantly,

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being unable to give advice on the charge in the indictment would have the same

effect as if the safeguards were not within the statutory provisions at all. That

would have very serious implications for the surviving viability of these provisions.

In my view, however, there is no concern in this regard when the section is

properly understood.”

323. In the present case, the appellant was in compliance with the legislation and given an

opportunity to consult with his solicitor regarding the questions to be asked in interview.

The first interview in respect of which the adverse inference provisions were broached

concluded at 16.44 hours and the interview in which the questions were asked

commenced at 18.19 hours. In the intervening time, the appellant consulted with his

solicitor. Significantly, in the present case, the safeguard in the legislation concerning a

reasonable opportunity to consult with his solicitor was met in a meaningful way. There

can be no dispute that the appellant had full knowledge that the questions concerned the

aggravated burglary. Not only was the offence of aggravated burglary a constituent

element of section 73 of the 2006 Act, but the questions related directly to that offence.

Moreover, at the conclusion of each series of questions concerning particular items, the

question was asked as to whether the appellant had possession of those items for the

purpose of carrying out “an aggravated burglary at Sunville House, Pallasgreen, Limerick

on 16th April 2012”.

324. This is quite different from the factual position in The People (DPP) v. Wilson [2017] IESC 53

where the belief expressed by the Gardaí concerned Mr Wilson’s presence in various

locations was in order to participate in and carry out the unlawful discharge of a firearm.

Adverse inferences may only be drawn where the relevant provisions are properly invoked

in every respect. The provisions encroach on the right to silence and the privilege against

self-incrimination guaranteed by the Constitution. There can be no doubt and there is no

issue but that the provisions were properly invoked and, in our view, the appropriate

safeguards were provided to the appellant.

Conclusion

325. We are satisfied that the questioning in the interviews where the adverse inference

provisions were invoked related to the offence for which the appellant was arrested and

not simply to questioning concerning the factual matrix which could give rise to a number

of different arrestable offences.

326. While in the present case there is certainly a factual connection between the offence for

which the appellant was arrested, and the offence with which he was charged and tried, it

is much more than that. Aggravated burglary was the “serious offence” within the terms

of the offence for which the appellant was arrested pursuant to section 73 of the 2006

Act. Therefore, the offence of aggravated burglary was a constituent element of that

offence and the respondent was entitled to rely upon the interview where the adverse

inference provisions were invoked.

Page 83 ⇓

327. The questions posed related directly to the offence with which the appellant was charged;

that is the offence of aggravated burglary. In those circumstances we are satisfied that

the provisions were correctly utilised in the present case.

328. Finally, the safeguards provided for pursuant to sections 18, 19 and 19 A of the 1984 act,

as amended, were adhered to in a meaningful way. It is quite clear that a legal adviser

considering the proposed questions would have been in no doubt but that the proposed

questions related to the specific aggravated burglary with which the appellant was

charged and stood trial.

Additional Ground

The learned trial judge erred in law in permitting the prosecution to adduce evidence, pursuant

to S.18 of the Criminal Justice Act 1984 as amended, of the appellant’s failure to answer

questions in respect of objects purportedly found in his possession, in circumstances

where it was a matter for the jury as to whether those objects were in his possession.

Appellant’s submission

329. The appellant submits that it was impermissible for the Gardaí to ask the appellant in the

context of inference questioning about the incriminating items as they were not in the

appellant’s possession, having been found in a car and not on the appellant’s person.

During the course of inference questioning, the appellant was asked to account for a

number of items in his possession including balaclavas, gloves, handcuffs, $1850, a set of

clothing containing glass from the scene of an aggravated burglary at Sunville House and

a screwdriver.

330. In seeking to have these questions ruled as inadmissible, counsel for the appellant

submitted that these items were found in the car which did not belong to the appellant

and not on his person. It was further submitted that the question asking why the

appellant possessed a set of clothing containing glass from the scene of an aggravated

burglary at Sunville House was in contravention of section 18 as it could not be

established beyond a reasonable doubt that the glass in his clothing came from Sunville

House. The trial judge ruled on the issue in the following terms: -

“The final point in relation to this matter, relates to the questions themselves and

that was something which I have exercised some thought in relation to and I have

read the various sections of the Act and some of the other legislation that deal with

inferences and I've also referred to Walsh. And having done all of that, I am

satisfied that in the absence of a specific definition within the legislation and it

hasn't been opened to me of possession, it is reasonable that Detective Garda

O'Connell used the word "possess" or "possession", I think were the words that he

used, and it is reasonable that he used them in circumstances where he believed

that the various items found in the BMW car in Doneraile, near Buttevant, were

items in respect of which the accused exercised some degree of control or

dominion. These items of course were not on his person in the car, they were not

in his clothing or in his footwear, but they were nonetheless, given the suspicions of

Detective Garda O'Connell and given the small physical space within which they

Page 84 ⇓

were located, reasonably held in my view to be in his possession. In those

circumstances, the question as posed was reasonable or the questions as posed

were reasonable and not in breach of the Act”

Respondent’s submission

331. In relation to the items in the appellant’s possession, it is submitted that there was

primary evidence establishing such before the jury, in particular, that glass shards linked

to the Sunville patio window were found in the clothing Patrick Roche was wearing on the

night in question.

332. Furthermore, it is submitted that section 18 provides for the drawing of inferences from

items found “otherwise in his or her possession” and therefore envisages items in one’s

possession or within one’s control, beyond his or her immediate person. It is submitted

that there is no requirement for definite, unassailably provable possession on the

suspect’s person and the existence of s.18(l)(iii) established this.

Discussion

333. This ground concerns s. 18 of the 1984 Act. The relevant portion of the section refers to a

request by a member of An Garda Síochána to account for, inter alia, an object which was

–

“(i) on his person,

(ii) in or on his clothing and footwear,

(iii) otherwise in his possession, or

(iv) in any place in which he or she was during any specified period.”

334. This submission seems to be predicated upon a two-stage approach. That is, for the

interview where the provision was invoked to be admissible, the respondent must prove

to the requisite standard that the object was in the accused’ possession. In other words,

proof of possession is a prerequisite to admissibility.

335. On behalf of the appellant, it is argued that it was impermissible for the Gardaí to suggest

to the appellant in interview where the adverse provision was invoked that he possessed

certain items. The submission is made that the items were simply in the vehicle in which

he was travelling, rather than on his person, thus the questions asked arose from

unproven factual assertions. While it is acknowledged that questions could have been

asked about the items being “in any place in which he or she was during any specified

period”, as some of the items were not on his person, he should not have been

questioned about them pursuant to section 18 (1) (i) of the Act.

Conclusion

336. This is a novel suggestion. It is certainly the position that a jury may only draw such

inference from a failure or refusal as appears proper, and in this respect, before any

inference can be drawn, the fact finder must be satisfied beyond reasonable doubt that

the object was in the possession of the accused, before then considering whether the

Page 85 ⇓

person failed or refused to give an account, and if the jury conclude that there was such a

failure or refusal, then and only then may a jury draw such inference as appears proper.

But to say that it is necessary for the purported possession to be proven before the

evidence can be left to the jury is not a sustainable argument.

337. Moreover, s.18 (1) (iii) of the Act clearly provides for objects otherwise in the

possession of the person who is the subject of questioning under the provision. Even if

this were not so, s. 18 (1) (iv) makes provision for a request by a member of An Garda

Síochána for the person to account for, inter alia, any object, in any place in which the

person was during any specified period.

338. Evidently, the subsections are broadly drafted to take account of a request to account for

objects which are found actually on an individual, in or on an individual’s clothing or

footwear, in any place in which the individual was during any specified period or otherwise

in his possession. This clearly encompasses the items found in the vehicle in which the

appellant was travelling. We do not find merit in this argument.

Ground 7

7. The learned trial judge erred in law in permitting the prosecution to adduce evidence,

pursuant to S.19A of the Criminal Justice Act 1984 as amended, of the appellant’s failure

to mention during interview facts relied on in his defence, in circumstances where the

appellant had not and did not subsequently rely on any such facts.

339. The appellant submits that the reference to section 19A by the prosecution before the

jury when it had already been established that such reference should not be made added

to the considerable amount of prejudicial evidence heard by the jury in the course of the

trial.

340. The respondent submits that the mere fact that the jury heard that section 19A had been

invoked is not a matter which caused any prejudice to the appellant and therefore did not

support his application to discharge the jury.

Discussion

341. The issue concerning the admissibility of the interviews where the inference provisions

were invoked arose on day 10 of the trial. After the trial judge ruled on the issue,

Detective Garda John O’Connell was called for the prosecution and he gave evidence of

the interviews conducted with the appellant. In so doing, the terms of section 19 (A) of

the Criminal Justice Act 1984 were read to the jury. In addition, the following was read to

the jury from the first interview: –

“Under this section, if you have any fact in your possession about the aggravated

burglary at Sunville House, Pallasgreen, Limerick, on 16 April 2012, that you intend

to use in any proceedings arising out of this matter, you should discuss them now.

If you fail or refuse to provide such fact or facts, if charged with an offence which is

punishable by a term of imprisonment of more than five years, a judge can take

this failure or refusal into account, whether a charge should be dismissed, whether

you have a case to answer, and the judge and jury can take into account your

Page 86 ⇓

failure or refusal to answer these questions in deciding if you are guilty of the

offence. Your failure or refusal can be used to support other evidence be put

forward against you, but failure or refusal on its own were not predictive of an

offence.”

342. There then proceeded the proposed question in the context of section 19A of the Act as

follows:-

“Question: have you any fact in your knowledge that you have not disclosed and

which you intend to rely upon at a later date or at a subsequent trial?”

343. In the second interview the above question was asked to which there was no comment.

344. On day 21 of the trial, applications were made to the trial judge prior to his charge. In

this regard Mr Lynam on behalf of the appellant referred to the above passages which

were read to the jury. Mr Costelloe suggested that the trial judge inform the jury that

section 19(a) of the Act was not part of the case and Mr Lynam reserved his position. It

does not appear that the point was revisited. However, in the course of his charge of the

issue the trial judge said as follows:-

“I should say to you that there was mention of – and you’ll see in the interviews –

reference to section 19 (a). Well, if you come across or you find yourself asking

each other any questions about it, I’m telling you to ignore it completely. That

provision does not apply this case and you are to take no notice of it, and any

reference to it in the interviews or references that were made to was during

evidence are not relevant to your deliberations.”

This does not appear to have been the subject of any requisition.

345. During oral submissions, counsel for the respondent was of the view that the portion of

the interview which concerned section 19(a) did not in fact reach the jury as an exhibit.

However, Mr Delaney in reply indicated that there was a lack of clarity whether or not the

memoranda of interview reached the jury in unredacted form. However, he did indicate,

(not being the counsel at trial) that he would be surprised if the interviews were left in

unredacted form given the controversy which had arisen.

Conclusion

346. In our view, we are not persuaded that the reading of the section to the jury and the

proposed question and response gave rise to prejudice of a kind contended for on behalf

of the appellant. The trial judge dealt with the matter adequately in his charge and there

is no reason to believe that any jury once directed by a trial judge to ignore evidence,

would then proceed to disregard that direction. It is quite clear that the jury were told to

ignore that evidence.

Ground 1 of Philip Roche- Rejection of application to move trial

The conviction of the appellant is unsafe having regard to the adverse publicity in advance

of his trial and having regard to the refusal of the Court to transfer his trial to Dublin.

Page 87 ⇓

347. Before the trial commenced, counsel on behalf of Philip Roche applied to the trial judge

to have his trial transferred to Dublin Circuit Criminal Court pursuant to section 32 of the

Court and Courts Officers Act 1995, due to adverse publicity.

Submissions of the appellant

348. It is fair to say that this ground was not advanced to any extent in the course of oral

arguments. In written submissions the appellant submits that the trial judge ought to

have exercised his discretion in favour of the appellant and transferred the trial to Dublin.

The appellant refers to The People (DPP) v. Joel and Costen [2016] IECA 120 where the

Court of Appeal found that there were compelling reasons for transferring the trial,

however, Mr Clarke SC for the appellant before this Court properly accepted that the

appellant’s case was not on a par with that of Joel and Costen.

349. This Court did not have the benefit of the transcript of the application before the Circuit

Criminal Court and nor did we receive the booklet of publicity which was relied upon

before that Court. However, Mr Clarke advised the Court that the publicity with which the

appellant was concerned occurred in and around the time of the offences; namely mid-

2012.

Submissions of the respondent

350. The respondent submits that the circumstances of this case are substantially different to

the unique circumstances in The People (DPP) v. Joel and Costen [2016] IECA 120 and

argues that Birmingham J. (as he then was) took care to stress in Joel and Costen that

the views of the trial judge would be afforded a very considerable margin of appreciation.

As such, it is submitted that the trial judge was correct to decide that the issue could be

dealt with by rulings and directions to the jury.

Conclusion

351. This ground can be dealt with in short order. The publicity complained of took place in

2012, the trial itself took place in June 2017, a period of some five years elapsed between

the date of the publicity and the date of trial. A trial judge may only transfer a trial if

satisfied that it would be manifestly unjust not to do so in terms of section 32 of the 1995

Act. The judge therefore enjoys a wide discretion and the threshold that must be reached

by an accused is a high one. In terms of the factual position as outlined to us, no realistic

arguments can be advanced, and indeed were not advanced, that the appellant’s right to

a fair trial was impugned by virtue of his trial taking place before Limerick Circuit Criminal

Court and this Court will not interfere with the decision of the trial judge.

Ground 4 of Philip Roche-The handcuffs

The learned trial judge erred in law in refusing the appellant’s application to discharge the

jury after it became apparent that a jury member was likely to have seen the appellant

being brought into the courtroom in handcuffs.

352. On day 13 of the trial, counsel for Philip Roche made an application to discharge the jury

in relation to Philip Roche as he had concerns that a member of the jury had seen Mr

Roche being led away from a prison van in handcuffs. CCTV footage was examined, and

Page 88 ⇓

the trial judge questioned the relevant juror discretely who stated that he had never seen

the appellant outside the courtroom. The trial judge refused the application.

Submissions of the appellant

353. The appellant submits that his presumption of innocence was undermined. He says that

the trial judge should have applied an objective bias test and refers to The People (DPP)

v. Mulder [2009] IECCA 45 as authority as to the manner in which a court should apply

an objective bias test in the context of whether to discharge a jury once a suspicion is

formed that a juror might not take an impartial view.

Submissions of the respondent

354. The respondent submits that the juror confirmed that he had never seen the appellant

outside the courtroom and the trial judge accepted the juror at his word as he was

entitled to do. As such, the respondent submits that there is no substance to the

appellant’s complaint and the Court should not disturb the finding of fact of the trial

judge.

Discussion

355. It is contended on behalf of the appellant that the trial judge ought to have discharged

the jury having viewed the CCTV footage, which it is contended, potentially proved that

the appellant was exposed to the juror in handcuffs. The trial judge ruled as follows: –

“Judge: Very good. Now, in relation to your application, Mr O’Caroll, the appearance

of Mr Kelly does not automatically mean that you are wrong in your application, but

I’ve taken what Mr Kelly has said in relation to the matter and I have considered

that in conjunction with the timeline and the other factors that I notice from the

CCTV and it would seem to me that it is not unreasonable at all that I accept Mr

Kelly at his word in that respect”.

356. It is the position that an accused person’s presumption of innocence can be undermined

by the public exposure in handcuffs. However, the decision to discharge the jury is one

which may only be taken as a last resort and with due regard to the rights of an accused

to a fair trial as guaranteed by Article 38 of the Constitution. In assessing whether or

not to discharge the jury, a trial judge must always have regard to the robust common

sense of juries, which has been borne out time and time again before the courts.

Conclusion

357. It is clear that the trial judge carefully considered the issue before him. The question he

posed to the juror was one which was carefully constructed and designed to ensure that

no possible prejudice could be occasioned to the appellant. The judge was entitled to

accept the evidence given by the juror and this Court does not find fault with the trial

judge’s approach.

Ground 5 of Philip Roche

The trial judge erred in law and acted contrary to fair procedures in directing that the

cross-examination of the witness John Cahill by the appellant’s counsel be limited to

certain subject matters.

Page 89 ⇓

358. Counsel for the appellant sought to cross-examine John Cahill on the basis that his

involvement in the aggravated burglary at Sunville House was voluntary. The evidence of

the witness was that he became involved in the offences in order to clear a debt owed to

Alan Freeman. Before the examination, the witness was informed that he was not to

mention, inter alia, that the debt he owed to Alan Freeman was drug-related. During the

course of cross-examination on behalf of Philip Roche, issue was taken with counsel’s line

of questioning. The trial judge ruled that the prejudicial effect of such questioning on the

other defendants outweighed its probative value and that he had to balance the

respective rights of the appellants.

Submissions of the appellant

359. While the submissions filed on behalf of the appellant address this ground, the point was

all but abandoned in oral submissions on the basis that the line of cross-examination did

not appear to be of any moment.

360. However, we will deal with the issue in short order. The primary submission made by the

appellant is that the ruling of the trial judge disproportionately abrogated the appellant’s

right to cross-examine. The appellant relies on the decision in The People (DPP) v.

Piotrowski [2014] IECCA 17 where Clarke J. (as he then was) said:-

“If the issues being pursued by cross-examination are directly relevant to the facts

of the case in the sense of the facts which are alleged to constitute the offence

charged or the guilt of the accused in respect of that offence, then wide latitude

must be allowed. ”

361. The appellant submits that in this instance, unlike Piotrowski, the questioning of the

witness was neither unwarranted nor improper given that counsel had identified that he

was seeking to establish that the involvement of the witness in the aggravated burglary

was on a voluntary basis.

Conclusion

362. The trial judge directed Mr Cahill that he could indicate he was under considerable

pressure but to go no further than that. We are absolutely satisfied that the trial judge

balanced the rights of the appellant and the interests in the administration of justice in

preserving the integrity of the trial itself. Cross-examination was not hampered or

constrained so as to cause any injustice in the circumstances to this appellant.

Ground 4 of Alan Freeman

The trial judge erred in law and in fact in failing to accede to an application by counsel on

behalf of the above-named appellant for a direction due to the Director of Public

Prosecutions failing to tender into evidence any fact identifying the appellant as the Alan

Freeman referred to by the accomplice witnesses.

Submissions of the appellant

363. The appellant submits that there was no evidence before the Court from which it could

properly be inferred that the appellant was the Alan Freeman implicated in Mr Cahill’s

evidence

Page 90 ⇓

Submissions of the respondent

364. The respondent submits that there was no confusion in the trial as to the Alan Freeman

being referred to by the witnesses and there was no defence made out on this basis. The

respondent submits that this was not a live issue in the case and as such, it is submitted

that this ground is without merit.

Discussion and Conclusion

365. During the trial, the defence put forward by this appellant was that he had no

involvement in the Garvey aggravated burglary. At no stage in the trial was any issue

raised expressly or inferentially by way of cross-examination or otherwise that the Mr

Freeman before the Court was a different person to the Alan Freeman stated in evidence

by Mr Cahill. There is no basis on the manner in which this case was conducted for this

ground of appeal.

Ground 5 of Alan Freeman

In all of the circumstances, the trial of the accused man was unsatisfactory and the

conviction as a consequence thereof unsafe.

366. The Court does not intend to address this ground in the circumstances.

Conclusion

367. Accordingly, the appeals of Patrick Roche and Philip Roche are dismissed, and the appeal

of Alan Freeman is allowed.

Result: Dismiss and Allow & Vary