Irish Court of Criminal Appeal

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Cite as: [2005] IECCA 72

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Judgment Title: D.P.P.-v- Christopher O'Callaghan Neutral Citation: [2005] IE CCA 72 Court of Criminal Appeal Record Number: 156/02 Date of Delivery: 12/05/2005 Court: Court of Criminal Appeal Composition of Court: Keane C.J., O'Neill J., Gilligan J. Judgment by: Keane C.J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Keane C.J.	Refuse leave to appeal

Outcome: Refuse leave to appeal

17

Murray C.J.
O’Neill J.
Gilligan J.

156/02
BETWEEN
JUDGMENT of the Court delivered the 12th day of May, 2005 by Murray C.J.

This in an application for leave to appeal by the applicant against his conviction for the offence of murder having been found guilty of such an offence on the 26th day of July, 2002 following a trial by jury at the Central Criminal Court. The offence related to the murder of Mr. Michael Fitzpatrick on the 25th day of June, 1999 at Roxboro Road, Limerick City.

Background Facts
According to the evidence the deceased victim, who was 19 years of age at the time, was involved in a fight outside a pub in Roxboro, Limerick at approximately 23:40 p.m. on Friday, 26th June, 1999. The deceased received a total of eight stab wounds of which five, according to the evidence of the State Pathologist, “penetrated the body cavities piercing the heart, severing a major coronary or heart artery, piercing the left lung, the liver and the stomach”. It was the evidence of the State Pathologist, Dr. Cassidy, that all of these wounds could have been caused by a single knife. For the purpose of addressing the grounds of the application for leave to appeal, which are set out below, it is not necessary to review the evidence extensively or in detail. It is sufficient to recall certain salient elements. Both the deceased and the applicant were drinking in the pub on the night in question. The proprietor, Mr. James Crowe, gave evidence of seeing both of them walk past him out of the pub at about 23:40 p.m. Shortly afterwards Mr. Crowe himself went out of the pub to deal with a matter relating to another customer and when he did so he observed the deceased and the applicant fighting outside the premises. They were at the end of a walkway outside the pub on a steps or stairs about 25 paces away from him. He walked in their direction to enquire what was going on. The deceased ran towards him and then leaned back against railings. He could see the applicant’s left hand holding the deceased’s hand and strike the deceased in the stomach with his other hand. As Mr. Crowe got nearer to them the applicant ran away. He did not see any weapon. He described the episode as taking about a minute or a minute and a half. Other witnesses also saw the two men fighting most of them thought it was a fist-fight and there was evidence that a Mr. Anthony McNamara intervened between the two men and grabbed hold of the deceased and another witness, Mr. McCormack, said at that point the applicant ran away. Mr Anthony McNamara did not see any weapon but was to discover shortly afterwards, when he went into the toilet in the pub, that his t-shirt was covered in blood. A youth, Mr. William Buckley, gave evidence of having observed the fight from his bedroom in a dwelling house nearby. According to the evidence the distance from his house to a point where blood was found on the walkway outside the pub was 31 metres. This witness said he saw the applicant, whom he knew, fighting with another youth whom he did not recognise at first, but shortly afterward did so as the deceased, whom he also knew. What he saw was a fist-fight and then he saw an object in the applicant’s right hand. He described the object as “a silver object”. He described how the applicant was holding that object in his right hand and as “swinging” the object. At that point he described the deceased as turning round, staggering a few steps and falling.

On the 1st July, 1999, some five days after the murder, the applicant arrived at Roxboro Road Garda Station in the company of his mother, two other persons and his then solicitor, Mr. John Devane. He was then arrested by Sergeant Rigney on suspicion of the murder and he was detained pursuant to s. 4 of the Criminal Justice Act, 1984. He was interviewed by the Gardaí during five different periods while in custody and the answers which he gave to four questions put to him in the course of those interviews were admitted in evidence. At the trial the prosecution ultimately did not seeking to have the answers to any other questions admitted. The circumstances surrounding the interviews are referred to below. The issue concerning the admissibility of the applicant’s answers to those questions is the primary ground of the appeal and indeed effectively the only ground pursued at the hearing of this application.

Grounds of Appeal
The grounds set out in the application for leave to appeal:

(a) The learned trial judge erred in law in admitting the verbal questions and answers into evidence.
(b) The learned trial judge erred in law in allowing the matter to go to the jury (failing to withdraw same from the jury) so unsatisfactory way the nature of the evidence.
(c) The finding of the jury was perverse.

First Ground of Appeal
The oral answers given by the applicant to certain questions put to him by the Gardaí in the course of an interview and which the applicant says should not have been admitted in evidence were as follows:

“Q. Where is the knife? It could get into the wrong hands and somebody else could be murdered.

A. I can’t remember where I threw it.
Q. Did you stab Michael Fitzpatrick last Friday night?
A. I can’t remember but it wasn’t meant to end up like this.
Q. What about Friday night outside the Olympic Arms?
A. Guard it doesn’t matter what I say, sure you have the video.
Q. Getting back to Friday night last is it possible you could have killed this man and you can’t remember?
A. I could but I can’t remember, Guard.”

The issue which arose at the trial concerning the admissibility of the foregoing evidence, and which has been raised in this application, stems from an unusual feature of the case. The applicant was interviewed while in custody on July 1st, 1999 on approximately five occasions. In the first four of those interviews the response of the applicant to the questions put to him by the investigating Gardaí was, in the vast majority of instances, “I can’t remember. If I remember I will tell you”. In his submissions at the trial counsel for the applicant estimated that some 57 questions were answered in that manner.

The admissibility of the answers which the applicant gave in those four interviews as well as in the fifth interview were the subject of a voir dire before the trial judge in the absence of the jury consequent upon which the trial judge ruled on their admissibility.

During the hearing on the admissibility of this evidence before the trial judge, sitting in the absence of jury, the defence called as a witness the solicitor who was acting as solicitor to the applicant at the time of his arrest, Mr. John Devane. Mr. Devane said that as a result of a telephone call on July 1st, 1999 he went to Roxboro Garda Station outside which he met with the applicant, his mother and the other accompanying persons. While he had limited instructions he had learned that the applicant was going to be arrested and interviewed in connection with a death of a person some nights previously outside a local pub. In a discussion which he had with the applicant outside the Garda Station he stated in his evidence that he advised the applicant:

“… that rather than give any comment to the Gardaí at all, that he should exercise his right to silence in the way that I had been trained, in other words the way I had been trained by my tutors and my previous employers was to advise the client to advise the Gardaí that he couldn’t remember but if he remembered he would tell them. Basically that was with the clear intention of advising him of his right to silence”.

The solicitor Mr. John Devane, (the applicant was represented by a different solicitor at the trial) also stated in evidence that he next visited his client at approximate 19:05 p.m. and was told by him that the Gardaí did not seem to understand why he was answering in the fashion that he did and Mr. Devane then advised him just to answer ‘no comment’. He went on to say that he told the applicant “If they can’t understand what you were trying to do was exercise your right to silence just say ‘no comment’”.

In the fifth interview by the Gardaí, which took place after the second visit by Mr. Devane to the applicant while in custody, the answer given by the applicant to most of the questions put to him by the Gardaí was ‘no comment’ although on several occasions he used the earlier phrase ‘I can’t remember. If I remember I’ll tell you’ notwithstanding the latter advice of his then solicitor.

In the light of the evidence given in the voir dire the prosecution adopted a particular approach as to what evidence arising from the interviews they would seek to have admitted to the jury. As a result the prosecution only sought to have admitted in evidence the answers of the applicant to the four questions cited above. This was on the basis that all the answers in the form of ‘I can’t remember. If I remember I’ll tell you’, which were otherwise admissible, could, from the prosecutions point of view, be treated as a simple refusal to answer by the applicant in the exercise of his right to silence.

This approach of the prosecution was that whatever may be said about the solicitor’s advice in these particular circumstances, the answers which the applicant gave to the four questions in issue were instances on which he voluntarily answered questions in a manner other than in accordance with his otherwise standard response as advised. The foregoing is set out as an explanation of the approach adopted by the prosecution to show how the issue concerning admissibility of the four questions arose. The legal submissions of both sides on the issue of admissibility in this application are summarised below.

Before referring to the ruling of the learned trial judge on the admissibility of the four responses, which is put in issue in this application, there are two other relevant matters to which the Court wishes to refer.

The first is that there is no issue as to the lawfulness of the detention of the applicant at the time of the interviews or the propriety of the conduct of the investigating Gardaí and in particular that at no time did they act unlawfully and furthermore, as the trial judge found, that the verbal statements made by the applicant were made voluntarily.

The second matter relates to an issue of fact as to the content of the answers which the applicant gave to the four questions in issue during the course of the relevant interview.

The applicant gave evidence during the voir dire portion of the trial in the course of which he disputed the answers as recorded by the Gardaí to three of the four questions. As to the first two questions he denied giving the answers which the Gardaí said they had recorded in their notes and asserted that his responses to each of them was a statement “I can’t remember. If I remember I’ll tell you”. He acknowledged that they recorded the answer to the third question correctly. Again he asserted that his answer to the fourth question was “I can’t remember. If I remember I’ll tell you” and not as recorded by the Gardaí.

The learned trial judge resolved the conflict of fact between the evidence of the applicant and the Garda witnesses by concluding that on the evidence he was satisfied beyond reasonable doubt that the Garda version was correct. He also accepted the Garda account that the applicant had verbally acknowledged the notes of the interview, as read over at its conclusion, as correct but declined to sign them. This finding is not in issue in this application. It was in the foregoing context that the learned trial judge considered the issue as to whether the four questions and answers referred to were admissible as evidence before the jury.

Trial Judge’s Ruling on Admissibility
All the essential elements of the trial judge’s ruling are contained in the following extract:

“The accused person received, put it in it’s lowest or it’s mildest terms, peculiar legal advice which one extreme reading could be almost a charter to tell lies, but strange legal advice he got. The explanation was that that was in effect an unorthodox way of telling him to exercise his right to silence. That is the explanation for it about which I won’t comment.

However, it seems to me quite clear that the accused man was in control of his faculties and in control of himself and was quite capable of following advice and quite capable of rejecting the advice as is demonstrated from the questions and answers themselves.

It follows from the finding of fact in relation to the admissibility question, it follows from the finding of fact that the accused was not always and not in every case but in respect of a number of questions, quite capable of departing from the legal advice as was his – as was his entitlement.

Now, this statement of this question and answer were taken in accordance with the acceptable legal standards. There is no question of oppression from the Gardaí or anything of that nature. There is no suggestion he wasn’t treated fairly in the garda station. The submission is really based on the advice that his solicitor gave him. But as has been pointed out by Mr. McCarthy, a person is free to follow the advice or to reject the advice. And it seems to me clear that he not only was capable of but, in fact, disregarded the advice. So I don’t accept the arguments put with such force and persuasiveness by Mr. Nix in relation to the possibility of an injustice being brought about by following the advice. It seems to me while of course right advice was given and some of the answers are in the context of that, those matters can be amply agitated before the jury as to what the meaning, the context of something.

So I will allow the question and answer session to be put in. In fairness to the accused, it seems to me that the State have decided or agreed to put in an edited version, unless the matter in context becomes an issue in the case.

I want to say that in my view Finnerty’s case has a – merely a very peripheral application to this particular matter before me now. As is said in page 376 of the judgment of the now Chief Justice, ‘This case – that is the Finnerty case – is solely concerned with the claimed right of a person detained under s. 4 of the Act of 1984 to refuse to answer questions put to him by the Gardaí during the course of his detention. And the corollary of that right – the need to ensure that no inferences adverse to him are drawn at any subsequent trial from the exercise of that right’. That particular matter is what Finnerty’s case was all about.

And in this case there is no question of the trial judge or jury drawing adverse inferences from the failure to answer some of the questions. It is said further on in the judgment, something that I found a little bit difficult in practical terms, that is ‘In the case of a trial before a jury, a trial judge in his charge should in general make no references to the fact that defendant’s refused to answer questions during the course of his detention’. While accepting that, I think the words ‘in general’, that qualification is extremely important because there are many cases where that general rule should be departed from, specifically to instruct or to tell the jury that no adverse inferences should be taken. In other words, while that suggests in general no mention should be made of the failure to – answer your questions, it seems to me that there are many cases when the jury should be specifically told that they are not entitled to take any adverse inferences from such a think. And I am certain that that sentence in the judgment didn’t intend to imply otherwise.

So that is the ruling in relation to the matter. Now, are there logistical problems in having an edited version and the edited version is subject to the right obviously that the matter could be contextualised, if necessary. It might be possible to agree a preliminary formula. The man was interviewed, in the course of the interview he said the following things. And only if that matter is in dispute could the context or would the context seem necessary. But it would seem absurd and unreal to exclude the context if it became an issue.

Mr. McCarthy: May it please your Lordship.
Mr. Nix: I agree with your Lordship.
Mr. Justice O’Higgins: I leave it there.
Mr. Nix: That is the formula I think should be used.”

It will be noted from the brief exchange of counsel, quoted above, that having ruled on the admissibility of the questions it was acknowledged that it would be open to the defence, if they wished, to contextualise, so to speak, the evidence which had been admitted.

Submissions of the Applicant
In relation to this ground of appeal it was first of all pointed out by counsel for the applicant that on the date of his arrest and interview the applicant had just turned 18 years of age and was relying on the advice of his solicitor who was well-known in Limerick for being experienced in criminal matters. The solicitor, having advised the applicant of his right to silence, then advised him that his right to silence would be best exercised by him when questioned by the investigating Gardaí by telling them “I can’t remember. If I remember I’ll tell you”. During the course of the interviews the accused adhered to this advice and departed from it only to a minor extent. It was submitted that such departures were necessitated by the nature of the questions asked e.g. “Where is the knife? It could get into the wrong hands and somebody else could be murdered”, to which the accused replied “I can’t remember where I threw it”. He was in effect, it was submitted, advised to tell lies to the investigating Gardaí and by that advice he was led into doing himself an injustice. The advice denied him the opportunity to give his own account of the events. The answers to the four questions were out of context with the rest of his responses to the Gardaí and should not have been admitted. They were capable of giving rise to adverse inferences or conclusions by the jury as to his guilt. The applicant should not suffer any injustice by reason of the bad advice which he received.

Submissions of the D.P.P.
Counsel for the D.P.P. submitted that the trial judge was entitled to take the view, having regard to the evidence before him, that the questions and answers were taken in accordance with law and were voluntary statements made by the applicant. In particular the trial judge was correct in pointing out that the applicant was free to follow or reject the advice given to him by Mr. Devane and not only was the applicant capable of departing from this advice but in fact chose to do so. It was also submitted that the learned trial judge having heard all the relevant evidence was entitled to take the view that there was no unfairness to the applicant in admitting into evidence these questions and answers. He exercised his discretion on clear and reasoned grounds and there is no basis for holding that he erred in law.

Conclusion
First of all the Court does not accept that, by virtue of the advice he received from a solicitor, that the applicant was prevented from giving his own account of the events. Persons being interviewed in custody, including persons of the applicant’s age, who receive the advice of a solicitor, are invariably advised that they have a right to silence and may be advised to exercise it. It remains the individual’s responsibility whether he or she wishes to exercise that right, whether they accept the advice or not. Moreover, at the commencement of each interview the applicant was informed by the interviewing Gardaí that he was not obliged to say anything unless he wished to do so. He was expressly informed that if he chose to say anything, that would be taken down and may be given in evidence. The succinctness of the caution compliments its clarity. The applicant was fully aware of his position in that regard. The learned trial judge heard the evidence, including the applicant himself, and concluded that he was in full control of himself and his faculties and quite capable of choosing to follow or not follow his solicitor’s advice, as indeed was demonstrated by the questions and answers themselves. He concluded, and in the Court’s view correctly, that the applicant voluntarily chose to give answers to those questions, after caution, which departed from his solicitor’s advice.

Certainly, to advise a person being interviewed by the Gardaí to reply to every question with a phrase “I don’t remember. If I remember I’ll tell you” without reference to a consideration of whether that statement is or is not true in relation to any particular matter will, if followed, result in the Gardaí being misled or told lies. Mr. Devane in his evidence said it was not his intention that the applicant should mislead or tell lies to the Gardaí. Whatever about that, that was the inevitable consequence if the advice was followed in the form it was given. It was improper professional advice. Mr. Devane then said that this was something he had learned from his tutors and another practice. As far as the members of this Court are concerned this Court is not aware of any such practice or advice being extant or considered acceptable to the solicitors profession.

The Gardaí are given by law certain powers to investigate crime and obtain evidence in relation to it (whether exculpatory or inculpatory, where individuals are concerned) in the public interest. It is manifestly in the public interest that lawfully obtained evidence, including voluntary verbal statements, relevant to the issues in a criminal trial is placed before the jury unless there is some rule of law or fundamental reason of justice or fairness which requires that it be excluded. In general it is the responsibility of a person of adult age being interviewed to decide whether and in what manner he or she should answer questions lawfully put to them in the course of a garda investigation. The fact that answers which a person gives to the Gardaí are ones which they have been advised to give by a solicitor does not of itself render such answers inadmissible.

In this case the prosecution decided not to tender evidence which consisted of responses by the applicant which were in the form advised by his solicitor and tendered only those answers where he had chosen to respond differently. Therefore the question of the admissibility of all the applicants other responses did not, in the end, arise.

As explained above, the applicant through his counsel objected to the admission in evidence of all of what had been said during the course of the five interviews. The prosecution having decided to treat the answers by the applicant in the form advised by his solicitor as a refusal to answer at all, which would have been his right, sought to introduce the four responses where the applicant had chosen to give a response different to that standard formula. That the answers given were different from the formulaic response is self-evident and underlined by the fact that in his evidence before the trial judge, sitting alone, the applicant claimed that he in fact had used the standard response in reply to three of the four questions and not those recorded by the Gardaí, a fact rejected by the judge who was satisfied, beyond reasonable doubt, that the answers recorded by the Gardaí were accurate. In the Court’s view the trial judge was correct in treating each of the answers to each of the questions as distinct from the standard response he had given to other questions on his solicitor’s advice. In any event the Court also concludes that the trial judge was correct in his ruling that these were deliberate and voluntary statements made by the applicant in response to those questions and therefore lawfully admissible in evidence. That was the issue which the trial judge had to decide concerning those four responses.

Neither does the Court consider as well-founded the submission on behalf of the applicant that the responses ought not to have been admitted because they were out of context. The overall context is that the applicant had been arrested and questioned in connection with the death of the deceased. With regard to that matter each question and each response had its own distinct context. They were distinct questions calling for a distinct response. They received a distinct response. Having found voluntary responses the trial judge was correct in ruling that they were admissible.

Moreover, if an accused considers it important to explain, or call evidence to explain, admissible statements which he or she has made to the Gardaí he or she is entitled, although not bound, to give or call the appropriate evidence just as he or she is entitled to give evidence to the jury denying the making of statements which the trial judge has ruled admissible. These are matters for the defence. In this case it was open to the defence to require the State to lead evidence concerning any or all of the interviews and in addition, or alternatively, call Mr. Devane to give evidence of the advice that he had given the applicant. In short, it was open to the defence to place the admissible statements in such context as they wished but it chose not to do so. Indeed the judge expressly indicated during and at the conclusion of his ruling on this issue that that option was open, an approach expressly acknowledged as correct by counsel for the defence (although that acknowledgement does not affect the substance of the Court’s conclusion on this issue).

The Court is satisfied that the admission of the evidence in question was in accordance with law and did not give rise to any injustice or fundamental unfairness to the applicant at the trial.

For all the foregoing reasons the application for leave to appeal insofar as it is based on the first ground is refused.

Other Grounds of Appeal
The second ground of appeal was not, understandably, pursued at the hearing although dealt with briefly in the written submissions of the applicant. That submission was in broad and vague terms namely that different witnesses gave contradictory or inconsistent evidence concerning the events on the night of the fatal stabbing of the deceased. No specific inconsistencies or conflicts were referred to. It was not contested, as it could not be, that there was cogent eyewitness testimony that the applicant had fought with the deceased on the night in question outside the pub and linking him with the fatal stab wounds. Inconsistencies or contradictions between the testimony of eyewitnesses to such events or the surrounding circumstances are invariably matters for the jury to consider when weighing up the totality of the evidence and deliberating on the evidence of each witness. There was clearly a proper case to go to the jury in this case and this ground of appeal is also refused. The Court also refuses the third ground of appeal which simply asserts that the jury verdict was perverse. The Court is satisfied that there was ample evidence before the jury entitling it to convict.

The application for leave to appeal in this case is refused.