Irish Court of Criminal Appeal

 


Finlay C.J.

Barron J.

Blayney J.

THE COURT OF CRIMINAL APPEAL
THE DIRECTOR OF PUBLIC PROSECUTIONS v. GERALD O'SHEA

JUDGMENT OF THE COURT delivered on the 28th day of July 1989 by FINLAY C.J.

This is an application for leave to appeal against a conviction entered on the 20th November 1986 after a trial before the Special Criminal Court in respect of the offence of robbery which occurred on the 6th March 1986 and the offence arising out of the same events of having a firearm with intent to commit robbery.A number of grounds of appeal were entered on behalf of the Applicant but two only of those were proceeded with by Counsel at the hearing of this application, namely, grounds Nos. 7 and 8 which are in the following terms:

"7. The Court erred in law in ruling that no evidence was required from Chief Superintendent Ginty of the suspicion which grounded his signing of the Extension Order which led to the detention of the Applicant for a further period of twenty four hours.

8. The Court erred in law in refusing the application of the Applicant for a dismissal by direction at the close of the prosecution case on the ground that no, or no sufficient, evidence had been produced of the suspicion held or alleged to have been held by Chief Superintendent Ginty which grounded his signing of the Extension Order."

The facts which are necessary to consider for the purpose of determining these two grounds of appeal are extremely limited, notwithstanding a lengthy trial and a large transcript. Evidence was given by Detective Sergeant Kevin Dillon that at 7.25 a.m. on the morning of the 8th April 1986 he arrested the Applicant under Section 30 o the Offences Against the State Act on suspicion of having committed a scheduled offence under the Act, being a scheduled offence under the Firearms Act and he conveyed him to Tralee Garda Station.

Chief Superintendent Sean Ginty who purported to make an Extension Order pursuant to Section 30 of the Act of 1939 gave evidence with regard to the making of that Order and the relevant portions of it are as follows:

"455. Chief Superintendent on the 8th April 1986 pursuant to Section 30 of the Offences Against the State Act, did you direct that the accused Mr. O'Shea be detained in custody for a further period of twenty-four hours commencing at 7.25 in the forenoon of the 9th April and expiring at 7.25 in the forenoon of the 10th April 1986?"

That is correct, my lord.

And do you produce that Order signed by you?

Yes, my lord."

And then in cross-examination by Counsel on behalf of this Applicant the Superintendent was asked as follows:

"459. Superintendent, as far as Mr. O'Shea

is concerned what was your understanding of his position at 11.58 on the evening of the 8th April 1986? If you could manage without notes I would be obliged.

I had some discussions with the officers involved in the investigation and it was my opinion that it would be necessary to detain him for a further period of twenty-our hours and I directed accordingly.

w. 460. For what purpose?

For the purpose of continuing their interrogation.

461.Had you formed a view as to what his attitude to interrogation was at that point? Well I knew that the officers concerned in the interrogation felt that a further period of twenty-four hours would be necessary, especially having regard to the fact that he would be going to bed at 12 o'clock that night and the interrogation would not resume until the following morning. I was guided by the opinions of the investigation officers and discussed it with them by phone and I was satisfied that a further period of detention was necessary in the interests of the progress of the investigation.

463.Were you told how Mr. O'Shea was responding to interrogation up to that point, what attitude he was taking?

I knew in the course of the interrogation up to that point that he had taken a defiant attitude in the sense that he was not prepared to give an account of his movements. The gardai concerned in the investigation were satisfied that he had not given an account of his movements and they were satisfied that he had'nt spoken the truth up to that time."

No other questions of any relevance were then asked on behalf of the Applicant and that concluded the evidence of the Chief Superintendent in respect of this Applicant.

At the conclusion of the evidence on behalf of the Prosecution, Counsel on behalf of the Applicant at the trial made an application to the Court for a direction or non-suit. The particular ground which is relevant to this appeal is thus accurately stated in the transcript by the presiding Judge in the Court in giving the ruling on that application:

"(iii) that even if the arrest and detention of the accused for the original period of twenty four hours is held to have been lawful, his continued detention pursuant to the Extension Order made by Chief Superintendent Ginty was unlawful because there was no evidence that the Chief Superintendent personally had formed a suspicion that the accused had committed a scheduled offence under the Firearms Act, and that that was his frame of mind at the time when he made the Extension Order."

In dealing with that particular submission the Court stated as follows:

"The Court is satisfied that Divisional Chief Superintendents are entitled to accept and rely upon information furnished to them by senior officers under their command regarding criminal investigations in which such officers are involved and that they are entitled to make decisions bona fide based upon that information. The evidence of Chief Superintendent Ginty makes it clear that before deciding whether or not to authorise the extension of the accused's detention for a further period of twenty-four hours he enquired from the senior officers concerned as to how the investigation was proceeding and why it was thought to be necessary that the interrogation of the accused should be allowed to continue beyond the original period of arrest. In the view of the Court the reasons which he was given fully justified his decision to extend the period of the accused's detention for a further period of twenty four hours as provided for in subsection (3) of Section 30."

The evidence necessary to be given in support of the extension of detention pursuant to Section 30 of the Act of 1939 has been considered by the Supreme Court in the case of The People at the suit of the Director of Public Prosecutions v. Dermot Byrne 1987 IR. In that case the Chief Superintendent who had signed the Extension Order concerned had died prior to the trial of the accused.

A specific challenge was raised by Counsel on behalf of the accused to the admissibility of any proof of the extension, having regard to the death of the Chief Superintendent. Counsel on behalf of the DPP sought to establish the making of the Extension Order by proving the document itself through the evidence of a member of the Garda Siochana who saw it being signed by the Chief Superintendent to whom the Chief Superintendent handed it. The Supreme Court held that such proof was not sufficient and could not be evidence which was necessary for the hearing of the making of a valid detention order.

In the course of his judgment in that case, Walsh J. stated as follows:

"If the Chief Superintendent had not died but had been in a position to come and give evidence in the case he would have come to the witness box and given evidence to the fact that he had signed the direction in question, would have identified it and would also have been required to give evidence to the effect that at the time of the signing he entertained the same suspicion as to the commission of the scheduled offence as that upon which the man purported to have been arrested and of the necessity for the purpose of the investigation of the alleged crime for his further detention."

McCarthy J. in a judgment which agreed in its conclusions with Walsh J. (both of these judgments forming in effect the majority judgments of the Court) stated as follows:

"The real question, in my view, accordingly is whether or not there was evidence upon which a jury would be entitled to hold that Chief Superintendent Joy did at the time of giving the oral direction on the telephone to Detective Sergeant Murphy or of signing the written direction, suspect the accused of having committed an offence. True, if the Chief Superintendent were alive at the time of the trial Detective Sergeant Murphy would not have been permitted to give evidence of the oral direction nor any evidence of the state of the Chief Superintendent's mind. True, if the Chief Superintendent were alive at the time of the trial, he could have been cross-examined as to the genuineness of his alleged suspicion. Is it not, however, a proper inference to draw from the oral direction and the signing of the written direction that the Chief Superintendent had the necessary suspicion? Omnia praesumuntur rite esste acta that an individual who had acted in a public capacity was duly appointed and has properly discharged official duties is common to criminal and civil proceedings. This presumption, however, is limited; there is a wide gap between a presumption in favour "` of the regularity of acts and against misconduct and bad faith and that degree of proof required not mere] in every criminal trial as such but also in every instance of what is on its face a breach of the constitutional right to personal liberty."

This Court is satisfied, firstly, that a Chief Superintendent in approaching the question as to whether or not he will make an extension order pursuant to Section 30 of the Act of 1939 is entitled to and indeed must in common sense rely upon the information and opinions of his subordinate officers with regard to matters which have given them a suspicion as to the commission of an offence by a person who is being detained and as to the progress of the investigation of the crime in respect of which that suspicion exists and of the continuance of that suspicion, having regard to the investigation that has so far taken place.

All of these matters are, in the opinion of the Court, clearly contained, though in an abbreviated form, in the answers given by the Chief Superintendent upon being questioned as to his reasons for making the Extension Order. It is quite unreal and quite artificial in the view of the Court, to suggest that the answers which are shortly quoted in this judgment of the Chief Superintendent on examination and more particularly on cross-examination merely because they do not include the word "suspicion" could be construed otherwise than as indicating that he retained at the time he made this Extension Order a very definite suspicion of the guilt of the Applicant of the crime of use of firearms in respect of which he had been arrested and that he was satisfied, having regard to the information obtained by him from his subordinates, of the progress of their investigation that a further period of detention was necessary.

Notwithstanding the quite unqualified onus of proof ' which rests upon the prosecution in any case to establish its case beyond reasonable doubt, and notwithstanding the fact that there can never be any onus on the Defendant to establish any particular matter it is clear that if an answer such as the answers that are found in the transcript in this case are given by a witness which have a plain, reasonable meaning attached to them, that if Counsel on behalf of the accused wished to challenge that meaning or to put to it some particular qualification or exception that challenge must be raised or the proper meaning should be accepted by the Court. The Court is, therefore, satisfied that this application must be refused.