Composition of Court: McCracken J., O'Neill J., White J.
Judgment by: McCracken J.
Status of Judgment: Approved
Refuse leave to appeal
Outcome: Refuse leave to appeal
COURT OF CRIMINAL APPEAL
McCracken J O’Neill J White J
The People at the Suit of the Director of Public Prosecutions
Judgment of the Court delivered by Mr Justice McCracken on the 28th day of July 2005 ___________________________________________________________
The Applicant was convicted before Abbot J and a jury of two counts of murder in a trial lasting some fifty-eight days, and was given the mandatory sentence of life imprisonment. The evidence against him was largely circumstantial. It was established in evidence that the two deceased died of strangulation, probably on 12th March 2001, and it appears that in the early hours of 14th March 2001 an attempt was made to set fire to the apartment in Blackhall Square in which they were killed in an attempt to destroy any evidence which might have existed. The apartment block was covered by closed-circuit television cameras and from the videos in those cameras it was established that both deceased were alive in the apartment block on the afternoon of 12th March 2001. The video from the camera also showed the Applicant in the apartment block on 12th, 13th and 14th March 2001. There was also some fingerprint evidence which showed that the Applicant had been in the apartment at some stage, but as he was a friend of the two deceased and had admittedly been in their apartment on a number of occasions, this evidence had little probative value.
The Applicant was interviewed by the gardaí initially as a witness on 14th March 2001 and made a lengthy statement to the gardaí over a period of several days which was admitted in evidence.
On 22nd March 2001 the Applicant was arrested under the provisions of s.4 of the Criminal Justice Act 1984, and while in detention he was interviewed by Detective Sergeant Grennan and Detective Garda Carroll, which interview was electronically recorded. The interview was conducted through the medium of an interpreter, who was in fact a Chinese police officer seconded to Interpol, called Mr Jim. There was a lengthy voire dire in the course of the trial lasting some twelve days in relation to the admissibility in evidence of the memorandum of the interview of 22nd March 2001 and the recording of that interview. The statement was admitted in evidence by the learned trial Judge.
In his appeal to this Court the Applicant has raised a number of distinct issues, which the Court proposes to deal with individually.
The Right to Silence
In the course of his interview on 22nd March 2001 the Applicant on several occasions indicated that he did not want to answer any more questions. Notwithstanding this, the gardaí continued to question the Applicant, and in fact he continued to answer the questions, although on several occasions saying that he did not want any further questions. It should be noted that the answers which he did give were exculpatory in intent. The Applicant contends that, in continuing to question him, the gardaí breached his right to silence and acted unfairly and put him under undue pressure.
It is conceded by the Applicant that he was informed by the gardaí of his right to silence, and was also advised of this right by his solicitor. The interview was recorded electronically, most of it on video tape as well as in audio form. The learned trial Judge, in admitting the statement, placed considerable emphasis on the fact that he had seen the video recording and heard the audio recording and was quite satisfied that at all times the Applicant was answering the questions voluntarily, and that he was not in any way intimidated or overborne by the nature of the questioning.
A person may be held in custody and interviewed by the gardaí for the purpose of investigating a crime. The law protects any such person from self-incrimination by providing that there is a right to silence, and a person under questioning is not bound to answer any question, subject to a very few exceptions which are not relevant in the present case. However, there is no authority whatever for the proposition put forward on behalf of the Applicant that the questioning should have ceased when he indicated that he did not want to answer any more questions. The Court is quite satisfied that the questioning by the gardaí did not breach his right to silence, was fair and that any answers which were given by the Applicant were given voluntarily.
Exception is taken by the Applicant to the fact that the interpreter provided by the gardaí was in fact a Chinese police officer, although at the time he was working for Interpol. There is some evidence given in the voire dire by the Applicant that he did not realise that the interpreter was a police officer until, during the course of the questioning, he saw the interpreter’s laptop screen. There is also evidence that the Applicant’s solicitor was aware that the interpreter was a police officer. At no time, whether before or after the Applicant himself states that he became aware of the identity of the interpreter, was any objection made to the gardaí, either by the Applicant himself or subsequently by his solicitor.
Again, the learned trial Judge viewed the video footage of the interview, and expressed himself in the following terms:-
“In fact looking at the video recording, which constitutes a substantial part of the whole interview, I find from my own observations, and I consider that I am entitled to rely on my own observations at this stage, that the relationship between the accused and Mr Jim, as shown in the video, appeared to be trusting. With Mr Jim acting professionally and in a detached way such as one would not expect a policeman whether from China or from this jurisdiction would act. In other words he appeared to be acting as a detached interpreter and, if anything, acted with a certain affinity and sympathy towards the accused.”
The learned trial Judge was certainly entitled to come to the view expressed in these observations as a result of his own interpretation of the video recording. Perhaps the primary importance of such recordings is that a Court may subsequently rule upon the fairness of the questioning and the demeanour of the person being questioned in a manner which is far more reliable than merely reading a transcript of what took place. It is acknowledged that there were certain omissions in the translation, but this is bound to occur in any situation involving an interpreter. There is no suggestion that the interpreter was biased or acted from any improper motive or was in any way intimidatory towards the Applicant. The objection seems to be based primarily on the fact that the realisation that it was a Chinese police officer may have in some way inhibited the Applicant, particularly as there is no right to silence under questioning in his own country. The Court is quite satisfied, that in view of the observation of the recording by the learned trial Judge, there was no impropriety whatever in relation to the interpreter.
Access to Solicitor
It is suggested that the Applicant ought to have had the benefit of having a solicitor present during his questioning. While this may be the law in certain other jurisdictions, it is not so here. The Supreme Court has made the position quite clear in Lavery v Member in Charge Carrickmacross Garda Station 2 IR 390, in which O’Flaherty J said at page 395:-
“The State appeals to this Court. The question for resolution is this: does such deprivation as the solicitor for the detained man suffered in this case mean that the detention of the applicant was rendered unlawful? Without any doubt, if a person in custody is denied blanket access to legal advice, or if he is subjected to ill treatment by way of assaults, for example, then that would render his detention unlawful.
However, the gardaí must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court Judge that in effect what Mr MacGuill was seeking was that the gardaí should give him regular updates and running accounts of the progress of their investigations and this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the applicant, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where.”
This Court agrees with, and is bound by, those comments.
Production of Photographs
It is alleged that the Applicant was tricked into identifying himself on a photograph by the manner in which a number of photographs were presented to him in the course of the interview. He was shown eight photographs taken from CCTV videos outside the offices of USIT and was then shown a blown-up version of a different photograph, but which was enlarged in such a way as to only show the face of the Applicant, and not the background as to where it was taken or the time or date of the photograph. The Applicant identified himself and he was then shown the full photograph from which the enlargement had been taken, which showed that, unlike the earlier eight photographs, it had been taken from the CCTV in Blackhall Square near the apartment where the murders took place. This photograph had the time and date printed on it.
The transcript of the interview makes it clear that he identified himself as the person in the first eight photographs. He was then asked “Is this man in photograph YU9 you?”. He answered “Yes, this man is I”. He was then asked “Is this man in photograph YU10 you?” and his immediate answer was “These two photographs are same”. He was then told where the last photograph was taken, and subsequently identified himself and the deceased in other photographs taken in Blackhall Square. This Court cannot accept that there was anything in the nature of a trick or anything unfair in the manner in which the photographs were produced to the Applicant.
Evidence of Arunee Hennessy
This witness was a Chinese lady who had employed the Applicant from time to time, and had also employed the deceased. Her initial evidence was not of great relevance, but it did show the relationship between the parties. After she had been cross-examined, Counsel for the Director of Public Prosecutions asked the Judge to be allowed to recall her as there was a matter which he had omitted to put to her through inadvertence. After some legal argument, the learned trial Judge allowed her to be recalled on a limited basis and in the course of her evidence she recounted a conversation with the Applicant during which he told her that he played blackjack and that he had lost a thousand pounds in one day gambling in this way. As the primary motive for the crime put forward by the prosecution was theft, it was of course relevant to their case to try to show that the Applicant had a gambling problem.
In his charge to the jury the Judge dealt at some length with the Applicant’s financial situation and in particular mentioned this piece of evidence by the witness. After the jury retired, Counsel for the Applicant queried the way in which this had been put to the jury, primarily on the basis that there should have been a greater explanation of the Applicant’s finances and of the general attitude of Chinese nationals to gambling. The learned trial Judge refused to re-charge the jury on this point.
The Court is satisfied that the learned trial Judge acted perfectly fairly in relation to his charge to the jury regarding both the Applicant’s finances generally and his gambling habits. He merely recounted that piece of evidence to the jury and did not comment to them, as he did to Counsel during argument, that this was very serious gambling. He left that to the jury to determine from their own experience.
Admissibility of Exhibits
Under s.8 of the Criminal Justice Act 1984 certain evidence such as fingerprints and photographs taken by the gardaí pursuant to the Act must be destroyed under the circumstances set out in the section. Among those circumstances are those set out in subsection (3) as follows:-
“Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction shall be carried out on the acquittal, discharge or discontinuance.”
It is alleged that in the present case the Applicant was initially charged with the two murders, but as the wrong procedures had been followed, the Applicant had been released and recharged. There was considerable argument before this Court as to exactly what procedure took place, but it ultimately appeared clear that, while the Applicant may have been recharged, when he was ultimately sent forward for trial, he was sent forward and tried on foot of the original charges. This being so, he was neither acquitted nor were the proceedings discontinued. The only basis upon which it could be argued that he was discharged is that he was released from garda custody prior to being rearrested. This Court is quite satisfied that under those circumstances, as the original charges were proceeded with, he could not be said to have been discharged in relation to them, and therefore the section is inapplicable and the gardaí were under no obligation to destroy the fingerprints and other evidence which they had taken.
Accordingly, for the reasons given above, the Court refuses the Applicant leave to appeal.