Irish Court of Criminal Appeal

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Cite as: [2009] IECCA 95

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Judgment Title: DPP -v- Glen Creed

Neutral Citation: [2009] IECCA 95

Court of Criminal Appeal Record Number: 161/08

Date of Delivery: 31 July 2009

Court: Court of Criminal Appeal

Composition of Court: Geoghegan J., Budd J., Edwards J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result
Geoghegan J.	Other (see notes)

THE COURT OF CRIMINAL APPEAL

Record No. 161/2008

Geoghegan J.
Budd J.
Edwards J.

THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

GLEN CREED

Appellant

Judgment of the Court delivered by Mr. Justice Geoghegan on the 31st day of July 2009

The above-named applicant was convicted in Naas Circuit Court of two offences i.e. robbery and unauthorised use of a mechanically propelled vehicle. While there is some ambiguity in the notice of application for leave to appeal to this court as to whether the appeal sought is against both convictions, the reality is that only the proposed appeal against the robbery conviction was pursued in court.

There are a number of grounds in the proposed appeal but for all practical purposes, there were three issues raised and argued.

1. That the case should have been withdrawn from the jury because allegedly, there were significant gaps in the chain of evidence and that the jury in convicting must necessarily have engaged in speculation.

2. That the Garda Síochána deprived the applicant of his constitutional right of access to a solicitor thereby rendering his entire detention unlawful and the procuring of any evidence during that detention inadmissible.

3. That the trial judge erred in the manner in which the jury were directed but in particular in relation to how they should treat exhibits including clothing which in turn was significant for the purposes of DNA evidence.

This court has found no difficulty in rejecting the application in so far as it is based on the first and third of those issues. The second requires more careful and nuanced consideration.

With regard to the first issue, it was not in dispute that there were gaps in the chain of evidence but there was strong circumstantial evidence against the applicant and the court would reject the proposition that the jury would not have been entitled to convict upon that evidence and in particular that the jury in convicting would have had to engage in speculation. A neat summary of the salient facts was contained in the written submissions of the respondent. That summary reads as follows:

“The evidence before the court had established that a man wearing dark clothes, variously described as a dark tracksuit, had participated with other men in the robbery at the Ambassador Hotel on the morning of the 21st October, 2006. During the robbery two members of staff, Daragh Byrne and Filip Miller, were attacked and injured. Daragh Byrne sustained an injury to his right eyebrow area which required stitches… Filip Miller was stabbed in the back and also required stitches.

The robbers were seen fleeing the scene in a Jaguar XK8 car registration number 00D107 174. That car was found crashed on the Blessington Road after 11 a.m. that morning. A man who identified himself as Anthony Creed of Bawnlee, Tallaght… was taken from that car and was described at that location as wearing a dark tracksuit by Joseph Hobson …, Paul Mulraney … and as wearing dark clothing by Tony Gregg … It is common case that this man was in fact the appellant, Glen Creed. He was transferred by ambulance to Tallaght Hospital. Sinead Creed, the appellant’s sister, was given a bag of clothing at Tallaght Hospital by an unidentified member of staff at Tallaght Hospital. Later that day she took that bag from the boot of her sister’s car and handed it to D/Garda Eddie Trant. The clothing retrieved from the bag consisted of a dark jacket … a grey Reebok sweatshirt, a yellow and grey tee-shirt and black tracksuit bottoms, together with a pair of black socks,… and which it is submitted amounts to an outfit.

The dark jacket was analysed and found to contain blood stains from which the DNA of Daragh Byrne was extracted. Daragh Byrne’s DNA was also found on a grey Reebok sweatshirt …contained in that bag. Glen Creed’s DNA was found on the yellow and grey tee-shirt also retrieved from the same bag … Daragh Byrne had testified at …that the man who attacked him with a screwdriver was wearing navy tracksuit bottoms, a baseball cap, a scarf and a tracksuit top.”

The gaps in the quotation with the dots merely represent page numbers and exhibit numbers etc. The court agrees with both parties that the principles outlined in R. v. Galbraith [1981] 1 WLR are the principles to be applied in this jurisdiction also. That is now well-established. But in applying those principles, the court is perfectly satisfied that the learned trial judge, His Honour Judge Michael White, was correct in allowing the evidence go to the jury and that it was open to the jury to convict.

As the second issue is somewhat more troublesome, the court thinks it appropriate to express its view on the third issue at this point in the judgment. First of all, the court does not accept that there was any defect in the learned trial judge’s charge to the jury. Secondly, there was no requisition made in relation to any perceived defect of the kind, the subject of the complaint. In a number of cases in recent years but in particular in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329, it has been made clear by both the Court of Criminal Appeal, and in the particular case cited by the Supreme Court, that it is only in circumstances where the appeal court is of the view that due to some error or mistake a fundamental injustice had occurred, the court should permit a point to be made in relation to a judge’s charge which had not been raised by way of requisition at the trial. In so far therefore as this application is based on the third of the issues which had been identified, the court refuses application for leave.

As already indicated, the second issue required more careful scrutiny. In particular it involved careful consideration of a number of cases included in the two books of authorities submitted to the court. Special regard was had by the court to The People v. Healy [1990] 2 I.R. 73 which established that the right of an arrested person to reasonable access to a solicitor is a constitutional right, the decision of the Supreme Court embodied in the judgment of Keane C.J. in The People v. Buck [2002] 2 IR 268, a later decision of the Supreme Court contained in the judgment of McCracken J. in The People v. O’Brien [2005] 2 IR 206 and what is probably the most recent relevant decision that of Edwards J. in the High Court in The People v. McCrea [2009] IEHC.

It would seem to the court that there are a number of related though partly overlapping principles to be considered in relation to what happened in this case. Before indicating what they are, a brief summary of the relevant facts is necessary. The applicant was arrested under section 4 of the Criminal Justice Act, 1984 on the night of Saturday, 21st October, 2006 and brought to Naas Garda Station. He requested the services of a particular local solicitor, namely, Ms. Gráinne Malone. Garda Slevin who was the member in charge made a number of attempts to contact Ms. Malone. These attempts were subsequently heavily and legitimately criticised because what Garda Slevin did was telephone the office of Ms. Malone a few times late on a Saturday night on the office landline. There was no answer and not only did he not make any efforts to obtain a mobile or other viable number but, contrary to the custody regulations, he never informed the applicant that he had failed to make contact. If Garda Slevin had done so, an alternative solicitor might have been suggested. On the face of it, this behaviour by the garda seemed to show a lack of common sense and proper care in efforts to procure the named solicitor and in failing to seek alternative instructions (if any) from the prisoner. Nevertheless, however, the trial judge whilst acknowledging those failures held that they were not conscious and deliberate, and therefore, did not constitute a deliberate and conscious failure to vindicate the applicant’s constitutional rights. The court considers that it was open to the learned trial judge to make that finding. It is not in any way contrary to the now somewhat controversial principle established in The People v. Kenny [1990] 2 I.R. 110 and followed in other cases that subjective factors like motive or personal knowledge are not relevant when considering whether infringement of a constitutional right is conscious and deliberate. What happened in that case and indeed what happened in the latest relevant decision which has been mentioned above, that of Edwards J. in The People v. McCrea was very different from what happened in this particular case.

In Kenny’s case the garda deliberately entered the dwelling house of another person without authorisation. It was held that the fact that he may have thought he had authorisation or that it never occurred to him that he was breaching a constitutional right was entirely irrelevant. He was not pushed across the door of the house. He deliberately entered the house. That was sufficient.

In a very different set of facts which arose in the McCrea case, the relevant garda officer requested the arrested person to provide a breath sample whereupon there was an immediate request to consult a solicitor. Edwards J. found as follows:

“I found that Sergeant Synnott declined this request due to a mistaken belief that she would not be legally be entitled to make another request of the accused if she broke the intoxilyser machine’s cycle in order to allow him to consult with a solicitor.”

It is quite clear therefore that in that case there was a deliberate refusal (albeit for a perceived good reason) not to procure the solicitor. Motive or reason, however, was held to be irrelevant. What was relevant was the deliberate refusal to procure the solicitor and that clearly constituted a deliberate and conscious failure to vindicate the arrested man’s constitutional rights. In this particular case, as indeed the learned trial judge found, the relevant garda, Garda Slevin, did not deliberately deprive the applicant of his right to a solicitor.

Notwithstanding that this was the finding of the learned judge, he nevertheless went on to hold that he would exercise his discretion against admitting any of the answers by the applicant given under questioning by the gardaí in Naas Station on that occasion. In the light of that ruling, it is not necessary to consider too deeply what the precise status of the detention was. Even after quite a number of decisions including Supreme Court cases it can be argued that the position is not entirely clear. However, some limited consideration has to be given to this issue because an important piece of forensic evidence i.e. a hair sample was taken from the applicant’s head for the purposes of DNA analysis. This is where the overlapping principles come in. A deliberate and conscious violation of rights may indeed render a detention wholly unlawful and render any evidence taken as a consequence of it, inadmissible. Where, however, there has been no deliberate and conscious violation of the constitutional right to access to a solicitor but where reasonable efforts have not been made to obtain a solicitor and the accused has not acquiesced in that situation, it must then be a matter of discretion for the trial judge to rule as to whether any particular evidence obtained in that context should be admitted or not. It does not at all follow that because there was no deliberate and conscious violation of the right, that it would be a fair procedure towards the accused to admit evidence obtained in the absence of a solicitor when reasonable efforts have not been made to obtain one. In considering the exercise of the discretion, the judge would also have to bear in mind that under the Custody Regulations, the relevant garda is required to inform the accused that the required solicitor is unobtainable. As already adverted to, that was not done in this case. However, it cannot be said that the ruling of the learned trial judge admitting the evidence as to the hair sample was wrong in law. The hair sample was taken under authorisation from the Superintendent not on the night that the applicant was arrested but on the following morning, the Sunday. At that stage a quite different garda was dealing with him. The applicant never questioned the absence of the requested solicitor or made an enquiry in that connection of any kind. That particular garda considered that all those matters had been matters for Garda Slevin the night before and there being no request of him, he went ahead in the ordinary way. Given that under the Criminal Justice (Forensic Evidence) Act, 1990, the hair sample could be procured without consent, it would have been reasonable to assume that the applicant did not require a solicitor in connection with it. His request for a solicitor the previous evening was clearly related to the questioning which he was about to undergo.

Accordingly, the court considers that the learned judge conducted a fair trial and that his rulings were in order. Leave to appeal will be refused.