Irish Court of Criminal Appeal

THE COURT OF CRIMINAL APPEAL

62/07


 


Murray C.J.

De Valera J.

McCarthy J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

Mike Ero

APPLICANT

JUDGMENT of the Court (ex-tempore) delivered on the 30th day of July 2007 by Murray C.J.

This is an appeal against conviction for a serious sexual assault. The applicant was convicted of the offence of sexual assault contrary to s. 2 of the Criminal Law Rape (Amendment) Act 1999 as amended by s. 37 of the Sex Offenders Act 2001 and sentenced to 18 months imprisonment. The Applicant had pleaded not guilty to the offence on the 26^th February 2007 but was convicted by a unanimous jury verdict at Cork Circuit Criminal Court on the 6^th March 2007.

It is clear that there was strong evidence, including forensic evidence, entitling the jury to convict the applicant of the offence in question. The net point, as submitted by Counsel for the applicant, is that the applicant was in unlawful custody from a point in time when he was first approached on the street by the Gardai by reason of which significant portions of the evidence tendered at the trial ought to have been excluded since that evidence was obtained while he was allegedly in unlawful custody.

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In general terms, the circumstances concerning the offence were that the victim, having been seriously sexually assaulted late in the evening on a street in Cork city by two men in the manner outlined in her evidence before the court of trial, made a complaint to the Gardai. As a result of that complaint the Gardai identified the applicant on a street in Cork in the early hours of the morning by reason of the fact that he seemed to match the description particularly as to the clothes he was wearing as well as the fact that he was of African origin and that he was of dark skin colour. That was the way the witness put it. The description of the clothing and the fact that he was of dark skin colour were enough to lead the Gardai to invite the victim to come to the scene to see if she would identify him which she did. That particular identification was excluded at the trial and nothing turns upon that in this appeal.

The real substance of the point made by Counsel for the applicant in this respect relates to the point in time, after he was approached by a member of the Gardai on the street, when he was given the usual caution by which a person is informed that he or she has a right not to incriminate himself in respect of any offence. This is what occurred on the street in the early hours of the morning in Cork city when the Gardai had decided to make enquiries of the applicant as to his movements and his reaction to the fact that a complaint appeared to have been levelled against him. The submission of Counsel was that the appellant should have also been expressly informed at that time, as a matter of law, that he was not under arrest and that he was free to go at any time or words to similar effect. In the absence of such a warning he should be deemed to have been in unlawful custody.

As the evidence shows the reaction of the applicant was to deny any wrongdoing and to indicate that he was willing to co-operate with the Gardai in assisting them in their enquiries in any way that they wished. In particular it is clear from the evidence that the Gardai were anxious that he would to inform them as to his movements during the course of the night regarding what streets he went to and where he went to. It is again quite clear from the evidence that the applicant, being a stranger to Cork city, was not in a position to describe his movements by reference to street names and on his own initiative he offered to walk with the Gardai to show them where he had been during the course of the evening. Subsequently, when that exercise was finished, he was asked if he would provide the clothing he was then

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wearing for scientific examination and again it is clear from the evidence that he was quite willing to do this. They were some distance from where he was staying. The applicant was staying with a friend in Cork city. He did not live in Cork city. He lived with his wife and family in the west of Ireland and he was a regular visitor to the accommodation of his friend which was some distance away. According to the evidence it was jointly decided that he would go with the Gardai in their car to where he was staying for the purpose of getting a change of clothes that he could wear when he had given the clothes he was actually wearing to the Gardai for the purposes of their investigation. They returned to his accommodation. He remained in the car with one member of the Garda Siochana and two Gardai went up to the living accommodation of his friend.

The Court does not think it is necessary to go into details concerning the evidence and the exchanges between the applicant and the Gardai at that stage. There was evidence that the two Gardai went to the accommodation because, there having been two persons involved in the sexual assault as described by the victim, they were investigating whether in fact the other person, that is the person with whom the applicant was staying, might be the other culprit. In fact it transpired that that was not the case but they were also proceeding with a view to the possibility that the second alleged culprit might be found in the apartment. In the event they took the necessary clothes from the accommodation and returned to the car and went to the Garda station with the applicant. When they went inside the Garda Station he changed his clothes and left the clothes which he had been wearing with them and then left the Garda Station to go wherever he wished with the understanding that he would return in about a week to collect his clothes. He did, in fact, return in a week to collect his clothes but they were not available so he went away again.

For the purpose of viewing the circumstances of the case in their totality it is relevant to emphasise that, after the Gardai had in co-operation with the applicant gone around the streets in order to ascertain where he said he had been and after they had received the clothes from him which he said he was more than willing to offer them, he just went home. There was no question of him being released, let alone being bailed, he simply just took off and could have gone anywhere as far as the Gardai were concerned. It is also important to note one finding of fact made by the

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learned trial Judge when he was ruling on the submission made by Counsel for the defence on the point, which has now been raised here and that is to the effect that all that happened in the walkabout and with regard to, the giving of clothes was done with his co-operation. When the Gardai met him subsequently they likewise had his co-operation.

Having carefully gone through the evidence the Court is unable to find anything to support the suggestion that at any relevant stage Mr. Ero was under restraint or arrest although it is a mixed question of fact and law from a certain perspective there are nonetheless important findings of fact in relation to that.

That being the general background to the case the net point raised by Counsel for the applicant in this case is that a person who is approached by the Gardai on the street and in whom they harbour some suspicion that he may have committed an offence and whom they caution for the purpose of warning them against self incrimination must as a matter of law also include the statement "You are not under arrest and you are free to go at any time" or words to that effect and that otherwise in the absence of such additional information to that person he or she must be considered to be in unlawful custody. Counsel for the applicant properly acknowledged that there was no authority for that particular proposition. He did rely, specifically in the course of the oral hearing, on two cases namely The People -v-Coffey and The People -v- O'Loughlin and acknowledged that, of course, they were cases that did involve persons who were being questioned in Garda Stations and indeed this was the point made by Counsel for the D.P.P. The People -v- Coffey was a ruling rather than a judgment of the former Chief Justice then Hamilton J. in the course of a trial in which a person had been brought to a Garda Station and kept there for a significant period of time. In that case in his ruling the trial Judge properly adverted to the case of The People -v- Walshe which stated the already established principle that there is no such procedure for holding for questioning or detaining on any pretext except pursuant to a court order or for the purpose of charging or bringing the person detained before a Court. He also cited the judgment of Walsh J. in The People -v- Shaw and in particular went on to refer to The People -v- Lynch in which the practice of detention as distinct from arrest was not a lawful distinction if in fact

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the detention meant that the person was being kept in custody and cited from The People -v- Lynch the following passage:-

" If a person is asked to come to a Garda Station and he goes there voluntarily he has been asked to come for some particular purpose or to give assistance in the investigation of a crime or for some other purpose he is subjected to interrogation of a nature which would suggest that he may well be a suspect in the case or questioned or interrogated in circumstances which reasonably would give rise to that inference he should be informed that he is free at any time unless and until he is arrested. "

Hamilton J., went on to cite a further passage which is a continuation of that Judgment:-

"Of course if an intention has been formed to charge him he must also be informed that he is not obliged to answer any question. The necessity to be informed of his freedom to leave at any time arises from the fact that a person in a police station in connection with the investigation of a crime even if he initially goes there voluntarily is in an unaccustomed environment and finds himself the focal point of attention."

He accepted that that principle did not apply in every case but in that particular case of course the facts were that the accused had been brought to the Garda Station at 3 p.m. He gave an account of his movements. The Gardai left to check his movements but he was never left alone and was in the company of the Gardai until 6.30 over a space of 3½ hours in a Garda Station and it was very much in that context that Hamilton J. applied the particular principle which he did in that case. In the view of the Court the facts and circumstances of that case have no real correspondence with the nature, facts and circumstances of this particular case. The Court does not feel that we have reached the stage of some kind of police state that the mere approaching somebody to make enquires even after caution means that by approaching somebody on the street they have to be told that they are free to go or otherwise it constitutes unlawful custody.

There is no basis in law for that requirement and it would, in any event, be an undue burden on the Gardai to suggest that if somebody omitted or forgot to say that in circumstances where they were chatting to somebody on the street and getting co-

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operation from them even after caution that that meant that everything thereafter was to be deemed in unlawful custody. So far as the other case referred to by the applicant is concerned The People -v- O 'Loughlin, that also was decided on its own particular facts and it is not quite clear how it is of any assistance to the applicant in this instance. In that case there was a period of detention from 9.30 a.m. to 2.00 p.m. - 4½ hours which the trial Judge thought was unlawful custody again because it was in a Garda Station. The Court in that case expressed doubts as to whether it was unlawful custody but felt in any event, even if it was, there had been no conscious breach of the accused's rights and that the verbal statement which he had made in that 4½ hour period in the Garda Station was admissible at the trial. It was only his subsequent removal and detention in another Garda Station that was deemed to be unlawful as and from that point on.

In all the circumstances the Court is satisfied that the Gardai carried out their duties in this in a lawful manner. At the point where, as was submitted, a member of the Garda Siochana cautioned the applicant on the street when he was at the early stage of being approached, the failure to give the warning argued for by Counsel at that time did not convert that interview into some form of unlawful custody or detention. There may be circumstances where the conduct of the Gardai might be such, even outside a Garda Station, to create a situation where it could be described as a form of detention but it would require very specific facts and circumstances to permit such a conclusion to be inferred. That might be more readily inferred where there is a fairly significant and lengthy period of detention and questioning of a person in a Garda Station.

On the facts in this case the Court does not find that there is any basis for suggesting that the Applicant was in detention at the time claimed. The Court does not accept that it is a valid legal proposition that he should have been warned that he was free to leave at the time when the caution was given on the street and for this reason, treating the application for leave to appeal as the appeal, the Court will dismiss the appeal.