Irish Court of Criminal Appeal

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Cite as: [1988] IECCA 2

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Record No. 70/86

Finlay C.J.

Gannon J. COURT OF CRIMINAL APPEAL

Barrington J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

SEAN HOWLEY

JUDGMENT OF THE COURT delivered on the 4th day of March 1988 by FINLAY C.J.

This is an application for leave to appeal against a conviction for murder entered in the Central Criminal Court on the 18th July 1986 on an indictment charging the Applicant that on a date unknown between the 29th May 1985 and the 9th June 1985 within the County of Mayo he murdered Lily Ormsby.

The grounds of appeal are two in number and are confined to a ruling made by the learned trial Judge, Barron J., in the absence of the jury, admitting in evidence oral statements and statements in writing alleged to have been made by the accused of an incriminatory nature, on the 27th June 1985 while he was in custody in the Garda Station in Ballina.

The facts

The deceased, who resided as a tenant or lodger, in a house the property of the accused, in Ballina, was last seen alive in that house on the evening of Wednesday, the 29th May 1985. Her body was subsequently discovered in a lake some distance outside Ballina on the 9th June 1985, and she obviously had been dead for a considerable time. The cause of death was found to be drowning.

At 11.30 a.m. on the 26th June 1985 the Applicant was arrested by a member of the Garda Siochana pursuant to Section 30 of the Offences Against the State Act 1939 on suspicion of having committed a scheduled offence, namely, the maiming of cattle at Ballina in the County of Mayo on the 12th February 1984. During the day of the 26th June, the Applicant was interrogated by a number of members of the Garda Siochana, part of the interrogation concerning the incident of the maiming of the cattle and at other times the interrogation concerning the disappearance of the deceased. The Applicant went bed shortly after midnight on the evening of Wednesday, June 26th, and was again interrogated in the morning. At approximately half past ten, Chief Superintendent O'Connor signed an extension order extending the detention of the Applicant under Section 30 for a further twenty-four hours and this was read over to the Applicant at approximately 11.20 a.m. Shortly after noon on the 27th June the Applicant is alleged to have made an admission of the crime of murdering Lily Ormsby. It was taken down in writing and purports to have been signed by him.

He made further statements and visited the area in the lake where the body of the deceased was found. The Applicant at the trial and on oath in his evidence denied that the statement was his or that he made it and denied complicity in the crime.

From the time of the discovery of the body of the deceased the Applicant was, on the admission of the Garda Siochana, a suspect in the event of it being established that her death was a murder. He was interviewed by members of the Garda Siochana on two occasions and denied any knowledge concerning her disappearance or death.

On the 12th February of 1984 a complaint was made to the Garda Siochana in Ballina by one Sean Geraghty, a number of whose cattle having strayed from land on which they were being grazed had apparently been maimed and some of them had died. This complaint was extensively investigated by the Gardai after it was made to them, and suspicion rested on the Applicant and his brother who owned a farm of land near to the Complainant, upon which the cattle were apparently trespassing before being discovered to be injured. An internal Garda file on this apparent crime was opened and was put in evidence at the hearing of this trial. It indicates that investigations were continued from time to time and that the Superintendent in charge at the time of the Ballina Garda Station and the Chief Superintendent stationed in Castlebar both took an active interest in the crime which they considered to be one of considerable importance and seriousness. On the file it appears that the suggestion was made on a number of occasions that the Applicant and his brother should beH arrested pursuant to Section 30 of the Offences Against the State Act 1939 and should be interrogated with regard to the suspicion concerning this crime.

Comments occurred of difficulties with regard to staffing which made this inopportune at various times and also the comment occurs on the file that they would be unlikely to make admissions unless interviewed over 1 a period. No concrete evidence from other witnesses against them appears to have been obtained by the Garda Siochana. The last entry on this file was that j of Chief Superintendent O'Connor of Castlebar, entered on the 23rd May 1985, which directed that the enquiries into the crime were to continue and that further report was to be made to him in three months, or sooner if necessary.

The challenge to the admissibility of the statements alleged to have been made by the Applicant while in custody made at the trial was the same as the issues arising on this appeal.

It was contended on behalf of the Applicant that in order to make admissible statements concerning the disappearance of the deceased made by the Applicant whilst under detention pursuant to his arrest under Section 30 it would have been necessary for the prosecution to establish beyond a reasonable doubt that the predominant or primary motive for the arrest of the accused was the necessity to investigate the offence of maiming the cattle and that the prosecution had failed to do so. It was asserted that having regard to the relative seriousness of the crime of murder compared to the crime of maiming the cattle and to the importance, from the Garda Siochana point of view, investigating the crime of murder to have an opportunity of interrogating this Applicant, that desire to solve the offence of maiming the cattle which was then sixteen months old could not have been the predominant or primary motive for the arrest.

Having reviewed the authorities submitted to him, the learned trial Judge ruled that the arrest was lawful, as also was the extension of the further twenty-four hours and that that being the only challenge to the admissibility of the statements, admitted the statements in evidence. The terms of his ruling are as follows:

"The test is: was the arrest in respect of a genuine offence? If it was, then the detention was lawful. The motive of the arresting officer is not queried. Accordingly it is not necessary to consider what was the predominant or primary motive for the arrest, nor to consider whether or not the arrest would have been affected if there had been no murder investigation in being.

The sole test is: was the arrest in respect of a real offence and was there a genuine belief that the person arrested might have committed such offence? In the present case the answer to both questions is Yes.

Counsel further makes the point that the Extension Order must be generally made in like circumstances. He contends it was made solely to enable the murder investigation to continue. Again the test is the same. Clearly the offence continued to be a real offence. Further, there was no suggestion that there was no longer a genuine belief that the accused committed such offence. This contention fails."

An issue close to this precise issue came before the Supreme Court in the case of The People at the Suit of the DPP v. Patrick Walsh in which judgment was delivered on the 25th July 1986, the case being a reference to that court by the Court of Criminal Appeal pursuant to Section 29 of the Courts of Justice Act 1924. The facts of that case were that a lady residing in Kerry and having a shop in her house was murdered by a person or persons who in order to gain access to the room in which she was and where she was killed broke a pane of glass in the door between the shop premises and the dwelling premises, and also damaged a heavy iron pot which was thought to be the murder weapon. The applicant in that case was arrested pursuant to Section 30 of the Offences Against the State Act on suspicion of being involved in the breaking of the glass window in the door and of the iron pot, and, on being interrogated made admissions with regard to the crime of murder. In the course of his judgment Walsh J. stated as follows:

"The facts of this case disclose unquestionably " that the alleged offence of malicious damage was very insignificant in comparison with the offence of murder. The facts also disclose notwithstanding the difference in the seriousness between the two offences that there was a connection between them in that the case of the prosecution was and is that it was sufficient to ' establish a case fit to go to a jury that the malicious damage was caused in the course of and as part of the incident which led to the fatal assault upon the eceased. The facts of the case also disclose that the members of the Gardai were generally concerned to ascertain the author of the malicious damage in question because it was manifestly clear that the damage and the death were so connected that the author of the malicious damage more than likely was in some way connected with the death of the deceased The fact that there was a great disproportion between the nature of the offence in question and that the greater concentration of police effort was on the investigation into the more serious of them, namely the murder charge, is not in itself sufficient to establish as a reasonable probability that the arrest in respect of the malicious damage charge was simply a colourable device to hold the accused in custody for an ulterior purpose on an alleged offence in which the guards had no real interest. The real question in this case is whether on the evidence there resided in the minds of the Garda Siochana a genuine interest in the malicious damage and a desire to pursue it. All the evidence in the case indicates the answer to this is in the affirmative. That being so, I am satisfied that the learned trial Judge was warranted in holding that the arrest under Section 30 of the Offences Against the State Act 1939 in respect of the scheduled offence of malicious damage was bona fide and genuinely motivated an arrest on the suspicion of having committed that offence."

In the case of The People v. Quilliqan which was appealed by the DPP from a decision of the Central Criminal Court acquitting the accused by direction, the Supreme Court held that an arrest of the applicant under Section 30 was lawful where he was suspected to have been involved with others in the murder of a man in his own home, the motive apparently being robbery, and where the entry into the home involved the damaging of a bolt on one door and the receiving lock on another, and where in the course of a struggle within the home and the ransacking of it for money and valuables certain items of furniture had been damaged.

Consideration of the judgments in that case, which dealt with other matters not here arising, would again indicate that the test which the Court applied was whether there was a genuine suspicion on the part of the Gardai that the applicant had been guilty of being involved in these offences of malicious damage, which were scheduled offences, and once having concluded that there was such a bona fide suspicion, the Court ruled that the arrest was lawful and that statements taken during it to which there was no other objection were admissible, even though the importance of that offence was very slight indeed in relation to the offence of murder which the Gardai were investigating. In that case it was also clearly laid down that where a person has been arrested under Section 30 of the Offences Against the State Act 1939 it is lawful and proper for members of the Garda Siochana during the period of his detention to interrogate him about matters other than those on the suspicion of which he was arrested, though of course he has no obligation to answer such questions and, of course, such interrogation must be conducted in accordance with the Judges1 Rules and with the fair procedures which have been laid down.

In the present case, the learned trial Judge's ruling that the Gardai had a genuine suspicion of the Applicant as being involved in the maiming of the cattle and had a genuine interest in seeking to have that crime solved was well supported by the evidence and is not contested by the Applicant on this appeal. It is clear on the evidence which was accepted with regard to this ruling that the Applicant was, during the period of his detention frequently and persistently interrogated about the maiming of the cattle as well as being interrogated about the disappearance of the deceased. There can, of course, be no question but that the guards must have been more concerned with solving the apparent crime involving the death of the deceased than they were in solving the crime of the maiming of the cattle. Chief Superintendent O'Connor gave evidence which the learned trial Judge accepted, however, that the question of maiming cattle, particularly in a rural area, remained a very serious I crime indeed, and one he would be anxious to see solved.

If this Court were to apply the test contended for on behalf of the Applicant, namely, of a predominant or primary motive for the arrest of the Applicant, it would, in the view of this Court, be introducing two wholly new and unsupported principles into the consideration of this question. The first would be that the motive or intention of the arresting officer as distinct from his bona fides could be the determining factor for the rights of members of the Garda Siochana interrogating the person detained and for the rights of the person detained and the admissibility of evidence obtained from such interrogations. The second would be that a person who was arrested on a bona fide suspicion of the commission of a scheduled offence and detained under Section 30 of the Offences Against the State Act would, if he were under suspicion for a significantly more serious crime at the same time, be in some way immune from questioning on that serious crime.

The Court is satisfied that the true construction of the cases to which it has referred and of other authorities which were submitted in the course of the argument must be that the test remains as it was stated to be in The DPP v. Walsh and The DPP v. Quilligan, and that is that the Court must ascertain whether the arrest under Section 30 is a genuine arrest bona fide carried out on a suspicion actually held of complicity by the Applicant in a real scheduled offence. If it is, then the arrest is and remains lawful and statements made which otherwise can not be objected to on grounds of fairness or the form of questioning with regard to any matter must be admissible in evidence. If, on the other hand, the arrest is made as a device to secure the detention of a person who is not really under a bona fide suspicion with regard to the commission of a real scheduled offence but whom the Gardai wish to interview with regard to murder which is not a scheduled offence then the position is different. The Court is, therefore, satisfied that the first ground of appeal, namely, that the arrest of the Applicant was unlawful, must fail. The statements which were tendered in evidence and which are the incriminatory statements were all alleged to be made after the time when the first twenty-four hours of the Applicant's detention had expired and he was being detained pursuant to the purported extension for a further twenty-four hours. It is, therefore, contended on behalf of the Applicant that even if the arrest was lawful that the evidence did not support a finding made by the learned trial Judge that the extension was also lawful. On the evidence given Chief Superintendent O'Connor who made the Extension Order stated that he was informed by Inspector McCallion who was in charge of the Ballina Station, of the desire of the Inspector partly based on recent information obtained, to have the Applicant interrogated with regard to the maiming of the cattle. He was further informed coming to the end of the first twenty-four hours that a further period of twenty-four hours on the following day would be necessary to complete those investigations.

He was not informed that parallel with this interrogation interrogation was being conducted concerning the disappearance of the deceased. The learned trial Judge held that the information which was laid before the Chief Superintendent which concerned the charge the subject matter of the actual arrest under Section 30 was the relevant information and that once he came to a bona fide decision on that information that the Court could not set aside that decision or find it to be invalid. This Court is satisfied that that is the true and correct ruling to have made. The Court cannot put itself in the position of exercising the discretion which is granted to the Chief Superintendent by the terms of the Section, and there is not any evidence which was before the trial Judge which would have permitted him to reach a conclusion that the Chief Superintendent's decision was based on some erroneous principle or that he failed to have regard to some matter which would have been relevant. In these circumstances, the application for leave to appeal must be dismissed.