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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- P.A. [2008] IECCA 21 (21 February 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/C21.html
Cite as: [2008] IECCA 21
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Judgment Title: D.P.P.-v- P.A. Composition of Court: Finnegan J., Herbert J., Gilligan J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Refuse leave to appeal against conv. | ||||||||||
COURT OF CRIMINAL APPEAL Record No. CCA162/07 Finnegan J. Herbert J. Gilligan J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT .v. P. A. APPLICANT Judgment of the Court delivered on the 21st day of February 2008 by Finnegan J. The applicant was charged with one count of an offence of making a false statement, contrary to section 12(a) of the Criminal Law Act 1976. The particulars of the offence are that on the 18th June 2003 at Kevin Street Garda Station Dublin he knowingly made a false statement to Detective Garda Brian Kavanagh tending to show that offences of indecent assault and buggary had been committed by a male person during the approximate period of February and May 1981. The Criminal Law Act 1976 section 12 provides as follows:- “12. Any person who (a) knowingly makes a false report or statement tending to show that an offence has been committed, whether by himself or another person, or tending to give rise to apprehension for the safety of persons or property, or (b) knowingly makes a false report or statement tending to show that he has information material to any inquiries by the Garda Siochána and thereby causes the time of the Garda Siochána to be wastefully employed,
(ii) on conviction on indictment, to imprisonment for a term not exceeding five years.” On the 27th April 2003 the applicant made a complaint that he had been sexually abused by a priest. He made a formal statement on the 18th June 2003. The complaint was investigated by Detective Garda Brian Kavanagh and other Gardai and their investigation disclosed numerous discrepancies in details given by the applicant in his statement to the Gardai. These discrepancies were put to him at a cautioned interview on the 18th October 2003 but at that interview he maintained his complaint. On the 20th March 2004 the applicant was arrested at his parents house when five Gardai in all attended. Following his arrest he was taken to Kevin Street Garda Station. Two Gardai, Detective Garda Kavanagh and Detective Sergeant Walsh, remained behind at his parents’ house and interviewed his mother who at that time was seriously ill. A statement had previously been taken from her and on this occasion a further statement was taken. At this time the applicant’s mother was confined to bed, a bed having been made up for her on the ground floor of the house. Present throughout the interview was the applicant’s sister C. A. At Kevin Street Garda Station the applicant was advised of his rights and given Form C72S. He requested a solicitor, Mr Hanahoe. He telephoned Mr Hanahoe’s office but not surprisingly this being a Saturday before 10 a.m. there was no answer: he was, however, advised of a mobile phone number which he could ring. He duly rang that number and left a message. Mr Hanahoe returned his call and spoke to the applicant but told him that he would not attend Kevin Street Garda Station. Thereafter the applicant was interviewed on four occasions, the first, second and fourth interview being recorded on video. For the third interview there was no recording as the interview room in which the video recording equipment was situate and the equipment itself were in use. The applicant denied the offence resolutely in the first two interviews but in the third interview conceded the same. In the fourth interview the entire notes of the third interview were read over to him and he did not demur from the same. Between the second and third interviews the applicant had a visit from his sister. The trial commenced on the 14th May 2007 and continued until the 5th June 2007. The first five days were consumed by a voir dire concerning the admissibility of the third interview. In short the submissions on behalf of the applicant on this application were that the third interview was not voluntary because of a number of circumstances which surrounded its conduct and these circumstances as summarised by senior counsel for the applicant are as follows:- 1. The interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the same. 2. The applicant had never previously been involved with the Gardai. 3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint. 4. Interviews 1 and 2 were from 10.39 a.m. to 12.54 a.m. and from 2.12 p.m. to 5.20 p.m., a total duration of five hours fifty three minutes and that this was excessive. 5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997. The totality of these circumstances it was submitted amounted to oppression. Reliance was placed on dicta of Sachs J. (as he then was) in a note to Martin Priestly [1966] 50. Cr.App.R. 183 at 51 Cr.App.R.1.
The court has also been referred to a number of Irish authorities. In The People (D.P.P.) v Bernard McNally and Osgur Breathnach, Court of Criminal Appeal, 16th February 1981, Finlay P. said – “This court accepts with approval the description of oppressive questioning given by Lord McDermott in an address to the Bentham Club and adopted by the criminal division of the Court of Appeal in England in R. v Prager [1972] 56 Cr.App.R.151. In that address Lord McDermott described it as ‘questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hope (such as the hope of release) or fears, and so affects the mind of the subject that his will crumbles when he speaks when otherwise he would have stayed silent.’ This court would adopt with approval the definition of “oppression” in the context of questioning contained in the note of the judgment of Sachs J.(as he then was) in 51 Cr. App. R.1 where he defined it as follows: “…to my mind this word in the context of the principles under consideration import something which tends to sap and has sapped that free will which must exist before a confession is voluntary…”” Again the court was referred to Shaw v The People (Director of Public Prosecutions) [1982] I.R. 1. In that case in his judgment Griffin J said: “Since the admissibility of such statements is directly in issue in this case, I think it proper and desirable to express an opinion as to the correct approach to the question of admissibility of such statements. Before such statements are admissible, two conditions must be satisfied by the prosecution.
Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it “where it appears to him that public policy, based on a balancing of public interests, requires such exclusion” – per Kingsmill Moore J. at p.161 of the report of O’Brien’s case. This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in the State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience, and vested jurisdiction, are not designed for constitutional interpretation or the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another.” The court accepts these principles and in the light of the same proposes to look at the individual issues raised on behalf of the appellant and whether individually or cumulatively they affect the third interview and the voluntariness of the admissions made thereat. 1. The Interview conducted with the applicant’s mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the time. When the applicant was arrested Detective Garda Kavanagh and Detective Sergeant Maura Walsh remained behind and spoke with the applicant’s mother. She had suffered a stroke and was quite ill and died shortly afterwards. The evidence of both Gardai was that Detective Garda Kavanagh sat at the end of the bed and Detective Sergeant Walsh sat on a chair beside the bed holding Mrs A’s hand during the course of taking the statement. The total time for which they remained in the house after the arrest was approximately fifteen minutes. In cross-examination it was suggested that the reason for remaining behind and speaking to Mrs A. was to put pressure on the applicant and this was denied. It was put to the witnesses that C.A. was distressed by the manner in which her mother was being questioned and this was denied. It was put to the witnesses that Detective Garda Kavanagh asked C.A. to call and see the applicant at the Garda Station at approximately 4.30 p.m. because she was close to the applicant and this was denied. C.A. did attend at Kevin Street Garda Station at 4.30 p.m. and later had a meeting with the applicant after which he was upset and crying. Garda Kavanagh’s evidence was that after the meeting C.A. told him that the applicant had told her that he had been telling lies. Almost immediately after that the third interview commenced and the applicant immediately made admissions. The applicant gave evidence. When speaking to his sister he had decided to admit the offence because he did not want his mother to be further distressed. At the interview on the 18th October 2003 he had been threatened that if he did not admit that he had not been abused his mother and father would go down for a number of years, that they would be sent to prison for five or ten to twelve years. His sister had told him that Detective Garda Kavanagh and Detective Sergeant Walsh had remained behind after his arrest and interviewed his mother and that she was very upset and was crying a lot and was very worried. C.A. gave evidence. Her mother had died on the 10th May 2004. She was present at the interview of her mother on the 20th March 2004. During the interview she was comforting her mother who was crying. The questioning was constant and she thought it unfair and it annoyed her. Detective Garda Kavanagh and Detective Sergeant Walsh were in the house from 8.45 a.m. to midday. Detective Garda Kavanagh asked her if she could come down to Kevin Street Garda Station at 4.30 and she asked him why and he said because she “was close to the applicant”. She agreed to go down to the Garda Station and attended there at 4.30 p.m. After about thirty minutes she met with the applicant in the detention cell. The applicant was very distressed and withdrawn and was unable to speak for almost five minutes. She told him that her mother and father were very upset over what had happened that morning. After meeting the applicant she was asked by Detective Garda Kavanagh whether the applicant had given any indication that he was going to make a true statement. She then went back and met again with the applicant who told her that he wanted to make a statement to protect his mother and father from going to prison as he had been threatened that they would go to prison for five to ten years. She encouraged the applicant to stick to his original statement. The applicant was distressed and crying. She then had a third meeting with the applicant during which he told her that he was frightened and wanted to protect his mother and father and that he was going to make a statement admitting that he had been lying. In cross-examination she denied that Detective Sergeant Walsh was holding her mother’s hand during the interview. She said that Detective Garda Kavanagh was extremely abusive and aggressive at the interview and as a result she swore at him. In his submission at the end of the voir dire counsel for the applicant submitted that the invitation to C. A. to attend at Kevin Street Garda Station at 4.30 p.m. on the day the applicant was arrested was a cynical ploy to put pressure on the applicant. The learned trial judge rejected the evidence of the applicant and C.A. She was satisfied on the evidence of the videoed interviews that the applicant was not intimidated or under pressure. She was satisfied beyond a reasonable doubt that the admissions made were voluntary and not in breach of the applicant’s constitutional rights. The suggestion of “a cynical ploy” was not pursued before this court. 2. The applicant had never previously been involved with the Gardai. The applicant had indeed previously been involved with the Gardai. He had made his initial complaint, he then attended at Kevin Street Garda Station to make a formal statement and further attended for a cautioned interview on the 18th October 2003. This interview on his own account was extremely unpleasant. The Gardai, he claimed, were verbally abusive to him and threatening towards him and towards his parents even though he had attended voluntarily. At the end of the interview he was not permitted to leave but was ordered to remain in the Garda Station for fifteen minutes. However he had never been charged or interviewed in relation to an offence prior to these events. 3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint. The circumstances which attended this interview on the applicant’s account have already been set out. 4. Interviews 1 and 2 were from 10.39 to 12.35 and from 2.12 to 5.20, a total duration of five hours fifty three minutes and that was excessive. This is factually correct. However the applicant was given food – a hamburger and chips. His sister brought him a sandwich. While on his own account he did not eat, on his sister’s account he did indeed eat both the hamburger and chips and the sandwich. There was much discussion as to whether he was given access to appropriate medication but he was given medication and had access to a doctor. The first interview lasted from 10.39 a.m. to 12.54 p.m. He was then allowed rest until 2.12 p.m. when the second interview commenced which continued until 5.20 p.m. He then had a further break, before the third interview, of one hour thirty minutes. 5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (S.I. No. 74 of 1997) At Kevin Street Garda Station one interview room only was equipped with video recording equipment. Another prisoner was taken to that room for interview at 6.25 p.m. and he was there with a three minute break only until 8.25 p.m. The applicant’s interview did not commence until 6.50 p.m. and finished at 8.10 p.m. This is the explanation for the failure to video the third interview. These facts are independently verified by the custody record. The regulations at Regulation 4(3)(a)(ii) provide that where equipment is already in use at the time the interview is to commence and the member-in-charge considers on reasonable grounds that the interview should not be delayed until the equipment becomes available an interview is not required to be electronically recorded. Regulation 4(4) requires that where an interview is not recorded the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason. Sergeant McAvinchey was the member-in-charge at the relevant time and gave evidence that the third interview of the applicant started at 6.50 p.m. and at that stage the interview room equipped with electronic recording equipment was in use. He accepted that he did not make the entry required by Regulation 4(4) in the custody record. He could give no account of having considered whether or the grounds on which he determined that the interview of the applicant should proceed. The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the electronic recording regulations shall not by itself render inadmissible in evidence anything said during such questioning. Again the Criminal Justice Act 1984 section 7(3) in relation to custody regulations, and in particular the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, is to similar effect and a failure to observe any provision of the regulations shall not of itself affect the admissibility in evidence of any statement made by a person detained. CONCLUSION As to the first circumstance relied upon by the applicant the learned trial judge found on the evidence beyond reasonable doubt that there was no deliberate or cynical ploy on the part of the Gardai in conducting the interview with the applicant’s mother on the date of his arrest and suggesting to C.A. his sister that she should attend at the Garda Station that afternoon. The circumstances which occurred in The People (D.P.P.) v Ward, unreported Special Criminal Court, 27th November 1998 differ considerably from the present case. There Ward while in custody had a visit from his girlfriend after which he made admissions having refused to do so in the course of five previous interviews. His girlfriend had been arrested and interviewed at length allegedly aggressively. She was threatened that she would be charged as an accessory to murder. She was crying and very distressed. She did not ask to visit the accused but was nonetheless brought from Ballyfermot Garda Station to Lucan Garda Station to visit him. She was interviewed again at Lucan Garda Station and remained upset and frightened. She was told that a charge sheet was being prepared but was asked to go and see the accused and ask him where the gun was to be found and that if the accused told the Gardai where the gun was to be found they would let her and the accused go home. She asked the accused to give the Gardai the information which they sought. The Special Criminal Court held that there was no credible explanation as to why the interview at Lucan Garda Station took place. The accused’s mother, a woman of seventy four years of age was also arrested and detained at Cabra Garda Station. She did not ask to see the accused but nonetheless was brought to Lucan Garda Station where she was immediately taken to meet the accused. This distressed him. These events the court held amounted to a deliberate ploy. In this case there was evidence before the learned trial judge which she accepted and which justifies her finding. She had the benefit of seeing the relevant witnesses and so was far better placed than an appellate court to evaluate their credibility. There were conflicts between the evidence of the applicant and C.A. examples being his evidence that he had nothing to eat and her evidence that he had and his evidence that he would say anything at the third interview to get out of custody and go home to his mother while her evidence was that he did not wish to go home but wanted to go to hospital. As to the second circumstance relied upon, this is to a large extent correct in that the applicant had involvement with the Gardai only in relation to his complaint which led to the charge preferred against him, the making of his statement and his interview on the 18th October 2003. This court is satisfied that his inexperience in these matters is not such as of itself to render his admissions involuntary. As to the third circumstance the applicant’s evidence that at the interview on the 18th October 2003 threats were made to the applicant in relation to his father and particularly his mother the learned trial judge had regard to the circumstance that this occurred some five months prior to his arrest. The allegations were denied by the Garda witnesses. The learned trial judge did not make any finding on the evidence but rather considered it in the context of the decision to interview the applicant’s mother on the day of arrest and the invitation to his sister to attend at the Garda Station that afternoon as part of a cynical ploy. In this context she found that she was satisfied beyond a reasonable doubt that there was no such ploy. On the next circumstance the learned trial judge was satisfied that the first and second interviews were not over long or oppressive. The Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations (Regulations 1987) Regulation 12(4)) provides that if an interview has lasted for four hours it shall be either terminated or adjourned for a reasonable time. The longer of the two interviews lasted three hours. Allegations made in the Circuit Court that the applicant had been denied food and medication was not pursued in this court. There were adequate and appropriate breaks between the first and second and between the second and third interviews. The applicant relied upon the The People (Director of Public Prosecutions) v Bernard McNally and Osgur Breathnach Court of Criminal Appeal 16th February 1981. In those cases there were very lengthy periods of questioning the interviews extending over forty four hours interrupted by one night’s sleep only and without the attendance of a solicitor notwithstanding repeated insistence that he should be afforded one. Finally there was a non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997. Regulation 4(4) requires that where an interview is not recorded because, in this case, the equipment was already in use at the time of the interview, the member-in-charge shall enter or cause to be entered in the custody record of the person to be interviewed a note setting out the fact that the interview was not electronically recorded and the reason. Further the member-in-charge is required to consider on reasonable grounds that the interview should not be delayed. The Garda witnesses were unable to give evidence in relation to any discussion of the grounds but as found by the learned trial judge on the evidence the equipment was indeed in use throughout the entire period of the third interview except for a matter of minutes when there was a short break. Further there were only two hours left of the applicant’s period of detention. This court is satisfied that that these factual circumstances, notwithstanding the absence of evidence as to the grounds in fact relied upon for the interview taking place, justified the interview taking place in the absence of recording facilities. The Criminal Justice Act 1984 section 27(4) provides that any failure to comply with a provision of the recording regulations shall not by itself render inadmissible in evidence anything said during questioning. It is accordingly appropriate to look at the other circumstances mentioned above in conjunction with this failure and to determine whether cumulatively they affect the admissibility of the statement. Having done so this court is satisfied that the cumulative effect of the circumstances is not such as to render the statement inadmissible. Again there was a non-compliance with the electronic recording regulations and the custody regulations in that the fact that the interview was not electronically recorded and the reason was not recorded in the custody record. In this regard section 7(3) of the Criminal Justice Act 1984 is to the like effect of section 27 so that the failure by itself does not render the statement inadmissible. Again the court has regard to the other circumstances relied upon by the applicant. The court is satisfied that the cumulative effect of the circumstances relied upon has not the effect of rendering the statement inadmissible. In these circumstances the applicant fails on the grounds relied upon before this court and accordingly the court will treat the application for leave as the hearing of the appeal and dismiss the same. | ||||||||||