Irish Court of Criminal Appeal

No. 50 of 1987

COURT OF CRIMINAL APPEAL

THE PEOPLE (at the suit of the Director of the Public Prosecutions)

- v -

YVONNE DONAGHY

Judgment of the Court delivered the 25th day of July 1988 by McCarthy J.

On Sunday the 5th October 1986, shortly after 2 a.m., Vincent Kavanagh, while walking down Griffith Avenue Extension in the City of Dublin, was engaged in conversation by a group of three young men and a girl who walked with him for a few minutes down the road. They then assaulted and robbed him; the girl took a chain off his neck and spat in his face.. This appeal concerns the conviction of Yvonne Donaghy, whom Mr. Kavanagh subsequently identified as the girl who had assaulted and robbed him. After a trial in the Dublin Circuit Court she was convicted on the 3rd April 1987 on counts of robbery and assault, for which she was sentenced to two years imprisonment. On application to this Court on the 11th May 1987 she was granted leave to appeal and bail pending appeal. Having heard argument on the 16^th May 1988, this Court allowed the appeal and quashed the convictions; it now states its reasons The issue at the trial was that of identification; Vincent Kavanagh identified the Appellant when he saw her in the vicinity of the Children's Court at Smithfield, Dublin on the 13th October 1986. The quality of the identification, having regard to its circumstances, was challenged but that is not relevant now. The Appellant was arrested at 6.30 a.m. on the 13th October by Garda Mclntyre.

It is common case that the warrant, issued by a Peace Commissioner, was, for reasons not relevant, invalid and, consequently, the arrest was unlawful. There is no suggestion that the defects in procedure were other than accidental; there was no conscious impropriety on the part of Garda Mclntyre. After arrest, the Appellant was brought to and charged at Finglas Garda Station and, then, to the Children's Court Building at Smithfield, where it was known that another accused, David Kearns, who was a minor, would be appearing on remand charged with offences arising out of the same incident. Garda Mclntyre had reliable information that the Appellant was the girl involved, but had no admissible evidence to that effect. Garda Mclntyre whilst stating that he had the additional purpose of bringing the Appellant before a Court as soon as reasonably practicable after arrest agreed that his purpose was to have her at the particular Court at a time when Vincent Kavanagh would be present to see if he would identify her.

In Walsh's case at page 300 O'Higgins C.J. said:

"However, such an arrest and subsequent detention is only justified at common law if it is exercised for the purpose of which the right exists, which is the bringing of an arrested person to justice before a court. If it appears that the arresting gardal have no evidence on which to charge the person arrested, or cannot justify the suspicion on which he was arrested, he must be released. He cannot be detained while investigations are carried out. Reasonable expedition is required but more than this cannot be demanded Regard must be had to the circumstances and to the time of the arrest. If a person is arrested late at night, it scarcely seems unreasonable if he is held overnight and charged before a court the following morning.”

(1) People (D.P.P.) -v- Raymond Walsh (1980) I.R. 294

The important thing is that his detention after arrest must be only for the purpose of bringing him before a District Justice or a Peace Commissioner with reasonable expedition so that a court can decide whether he is to remain in custody or to be released on bail."

If evidence is obtained by illegal means, involving a breach of constitutional rights, it is difficult to see how that may not, of itself, lead to the rejection of the evidence. When this is combined with an ulterior, if not improper, motive or purpose, the trial Court must reject such evidence. If the District Justice, in the present case, has asked Garda Mclntyre if he had any evidence to connect the Appellant with the crime he would have been forced to answer "not yet but I hope to have it if the victim arrives in time to identify her here in Court or outside Court"; the District Justice would have been bound to direct her immediate discharge. So also is the Court of Trial. It is unnecessary to consider the further argument advanced on behalf of the Director to the effect that the reasoning in O'Brien's case excusing the illegality of breach of constitutional rights could be applied in the instant appeal. Suffice it to say that in O'Brien's case the conduct of the Gardai was not tainted by any ulterior motive; it was a case of a typing error.