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Cite as: [2011] IECCA 105

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Judgment Title: DPP -v- Carlos Byrne

Neutral Citation: [2011] IECCA 105

Court of Criminal Appeal Record Number: 108/09

Date of Delivery: 13/12/2011

Court: Court of Criminal Appeal

Composition of Court: McKechnie J., Murphy J., O'Keeffe J.

Judgment by: McKechnie J

Status of Judgment: Approved


Judgments by	Result
McKechnie J.	Appeal v Conviction refused

Outcome: Appeal v Conviction refused

THE COURT OF CRIMINAL APPEAL

[C.C.A No. 108 of 2009]

McKechnie J.
Murphy J.
O'Keeffe J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

CARLOS BYRNE

ACCUSED

JUDGMENT OF THE COURT delivered the 13th day of December, 2011 by McKechnie J.

The Charge:
1. On the 2nd March, 2009, the appellant, along with his co-accused, Lindsey Fahy, was arraigned and pleaded not guilty to the single charge contained in the indictment, namely, murder contrary to common law and as provided for, by s. 4 of the Criminal Justice Act 1964. The particulars supporting this charge alleged that on the 18th March, 2008, at Fortlawn Avenue, Blanchardstown in the County of Dublin, they did murder one Mark Smyth. After a fourteen day trial presided over by Butler J. in the Central Criminal Court, the jury convicted Mr. Byrne of the charge of murder in respect of which he was, on that day, sentenced to the mandatory term of life imprisonment. The jury returned a verdict of manslaughter in the case of Lindsey Fahy, who, on a subsequent occasion, received a sentence ultimately of seven years with one year suspended. The appeal, the subject of this judgment is that of Mr. Byrne only.

2. By Notice of Appeal dated the 21st April, 2009, Mr. Byrne appealed to this Court seeking leave to appeal against conviction. He does so, alleging that his trial was unsatisfactory and the verdict unsafe in that:-

(1) the learned trial judge erred in law or in fact or on a mixed question of law and fact in allowing before the jury an alleged verbal admission made by the appellant on his arrest;

(2) the learned trial judge erred in law in ruling that the applicant’s arrest was lawful and in allowing evidence to be admitted of his interviews subsequent to same;

(3) in all circumstances, the verdict of the jury was perverse and against the weight of the evidence presented to them during the course of the trial.

3. The background circumstances which gave rise to this prosecution can be briefly summarised as follows.

General Background:
4. On the 18th March, 2008, at Fortlawn Avenue, Blanchardstown, one Mark Smyth was seriously assaulted as a result of which he died very shortly thereafter. Both Carlos Byrne and Lindsey Fahy, who were involved in this altercation, fled the scene. On the 20th March, 2008, at about 5.15pm, Detective Inspector Fox informed Sergeant Kennedy that on the previous day Mr. Byrne and Ms. Fahy had booked into the Crown Plaza Hotel in Santry and were in room 155. The sergeant was also told that both were making attempts to flee the jurisdiction. This information which had been obtained by the gardaí in the immediate past, came from a confidential source who was described as reliable with the quality of the information being rated as good.

5. Sergeant Kennedy, together with other members of the investigating team, arrived at the hotel at about 5.30pm. After a briefing with Detective Inspector Fox, they went to the corridor where room 155 was located and were in position at about 5.40pm. The sergeant, having assessed the situation, decided that assistance was required in order to arrest both of these suspects, for the assault on Mr. Smyth, which was the reason for which they were there. The Special Detective Unit (the “SDU”) was called and a number of gardaí from that unit, about five or six, arrived on the scene at about 6.25pm.

6. Forced entry was effected through the door of the room by such members, who proceeded to secure the room and handcuff both Mr. Byrne and Ms. Fahy. Within about 30 seconds or so of this happening, Sergeant Kennedy with others, entered the room and told both individuals that he was arresting them under s. 4 of the Criminal Law Act 1997, for an arrestable offence being that provided for under s. 4 of the Non-Fatal Offences against the Person Act 1997. He went on to explain the nature of the offence, being one of assault causing serious harm to Mark Smyth on the 18th March, 2008, at Fortlawn Avenue. They were then cautioned and, subject to the events giving rise to the second ground of appeal, were subsequently processed in the usual way.

7. Sergeant Kennedy in evidence, said that the gardaí were operating under s. 6(2)(b) of the Criminal Law Act 1997 (“the Act of 1997”). Given this express acknowledgement it is not proposed to consider whether the actions of the gardaí could be justified by reference to any common law power of entry and arrest. The section was invoked and thus must apply.

8. The other members of the investigating team present, gave evidence consistent with that given by Sergeant Kennedy. In addition, one such member, Garda O’Connor, noted that on entering the room he found the passport of Mr. Carlos Byrne lying on the bed. No member of the SDU gave evidence.

9. There was one further witness called in the voir dire, whose evidence was relevant to the central ground of appeal on this leave application. It was a Garda Keating, who apparently had known Carlos Byrne for several years, perhaps through a shared interest in hurling and a common membership of a particular hurling club. As it happened, although Garda Keating was attached to the drugs units and was not involved in the investigation, he, like the team, was based at Blanchardstown Garda Station. On the 19th March, 2008, Carlos Byrne telephoned Garda Keating and started speaking about the incident. He was advised to get in contact with the detectives involved in the investigation, and if he wished Garda Keating could arrange for this to happen. Garda Keating could also be present if that would help. Because the garda had to return to court on other business, that telephone conversation was cut short and ended with Mr. Byrne saying that he would call back in one hour. He did not do so within that time or at all. This information was related to the investigation team.

10. In cross examination the following is a reasonable summary of what emerged from the exchanges between counsel for the accused persons and the prosecution witnesses:-

(1) there was no pre-arrest conference or discussion as such: there was a briefing by Detective Inspector Fox but nothing more structured or formal than that;

(2) the gardaí knew at the time that both persons were in room 155: Mr. Byrne in fact had booked into that room under his own name;

(3) as a result of the information received, gardaí were on surveillance duty at airports and seaports within the State, although the precise details of location and numbers involved were not given;

(4) as a result of assessing the situation, Sergeant Kennedy deemed it necessary to get assistance so as to effect the arrest intended: it was his decision to call the SDU;

(5) there was some conversation with management of the hotel, but by whom, to what effect and when, were all unclear; and

(6) the purpose of Mr. Byrne contacting Garda Keating may or may not have been with a view to handing himself in.

Submissions of the Parties: The Appellant
11. On the above evidence an application for a Direction was made on behalf of both accused persons. The submissions on moving the application can be described as follows:-

(1) that the D.P.P. had failed to establish beyond a reasonable doubt, each of the essential elements necessary, to prove that the entry into the hotel bedroom and the subsequent arrest were lawfully based. As s. 6(2) of the Act of 1997 was being relied upon, that section was considered in detail;

(2) that by virtue of the D.P.P. v. Yamanoha [1994] 1 I.R. 565 (“Yamanoha”), a hotel bedroom must be considered as a “dwelling” for the purposes of the section. As such, the inviolability of the room attracts constitutional protection and can only be trespassed upon by clear and unambiguous authority, deriving its source from law;

(3) that there was no evidence that peaceable entry was first sought and refused before the SDU resorted to forced entry: matters such as an immediate risk that vital evidence could be destroyed, or that some victim was in imminent danger or other similar excusing circumstances, which might justify bypassing what is the clear and established law in this area, simply did not exist: see The People (D.P.P.) v. Laide & Ryan [2005] 1 I.R. 209 and, in particular, para. 57 of that judgment; (“Laide”)

(4) that the purpose of entry into the room was not explained to either room occupant at the time of entry;

(5) that there was no evidence to suggest that the accused persons would abscond: support for this view is evident from the fact, that the corridor, and thus the room, were fully secured given the number of gardaí in attendance and secondly from both the fact and purpose of the appellant’s contact with Garda Keating, which for self serving reasons, is now being downplayed by the D.P.P.;

(6) that given the absence of the evidence last mentioned, a condition precedent to invoking s.6(2)(b) of the Act of 1997 has not been met in that, the relevant provisions of the section permit an arrest without a warrant only where the member concerned, with reasonable cause, suspects that the person in question will abscond before a warrant of arrest can be obtained. No such view, reasonably based, could be arrived at in this case, and finally;

(7) that the SDU, in handcuffing both prisoners whilst awaiting the entry of the investigation team to effect the arrest, was involved in some form of detention or preventative detention which by its very description is unlawful.

12. Consequently, by reason of one or more of the above matters, there has been a breach of the appellant’s legal rights and also a breach of his constitutional rights which can only be described as having been carried out deliberately and consciously, with the effect that the entry, arrest and all evidential material gathered as a result, should be declared both invalid and inadmissible.

The Respondent’s Submissions:
13. On behalf of the D.P.P. the following submissions were made, namely:-

(1) that on the authority of

Yamanoha

he was prepared to accept that a hotel bedroom should be regarded as a dwelling for the purposes of s.6 of the Act of 1997;

(2) that the evidence adduced at trial established due compliance with all of the required elements of s.6 of the Act of 1997: (i) the purpose of entry was to arrest for an “arrestable offence”: (ii) on entry Sergeant Kennedy informed both occupants of that purpose: (iii) both were then arrested and having been told the reasons for such arrest, were also informed of the statutory provisions referable to both the arrest itself and the arrestable offence involved;

(3) that the actions taken by the SDU and those taken by the investigating team must be considered as a joint undertaking and as part of a single transaction culminating in the arrest as planned;

(4) that the gardaí had reasonable cause to suspect that both individuals were planning to leave the jurisdiction. This belief was based on the confidential information received, the seriousness of the assault and the fact that Carlos Byrne had his passport with him at the time of arrest;

(5) that the decision in Laide must be viewed in the context of the evidential background presenting itself in that case: otherwise, the observations relied upon by the appellant, would make the section virtually unworkable in circumstances like those which faced Sergeant Kennedy and his team on the occasion in question. The decision in Laide was not intended to establish general parameters within which s.6 had to be operated, irrespective of circumstances. Therefore the comments of the court, in particular those at para.57 of the judgment must be read in that light; and finally;

(6) that the gardaí were also entitled to take into account the fact that the assault causing serious harm was of a frenzied nature involving multiple stab wounds.

14. In conclusion, it was urged that the application for a direction should be refused.

Ruling:
15. The trial judge, in his considered ruling, was satisfied that the instant case differed substantially from the facts in Laide, and whilst passing comment on the absence of any evidence from the SDU, was nonetheless satisfied that the entry, which was carried out on behalf of the investigation team, was lawful. Secondly, the learned judge was satisfied to describe the actions of the SDU, in handcuffing the individual concerned moments before their formal arrest, as irrelevant to the legality of that arrest. The application for a direction on both of these grounds was therefore refused.

The Appeal:
16. As the submissions made on this leave application, replicated those made before the trial judge, it is therefore unnecessary to further recite these for the purposes of this decision. When addressing the grounds of appeal, counsel on behalf of the appellant firstly dealt with ground No. 2, followed by ground No. 1 and finally, ground No. 3. In giving judgment this Court proposes to follow that sequence. It will therefore deal with Ground No. 2 first which in reality is the essence of the appeal.

Grounded Appeal No. 2:

“2. that the learned trial judge erred in law in ruling that the appellant’s arrest was lawful and in allowing evidence to be admitted of his interviews subsequent to same.”

Section 6 of the Act of 1997:
17. Section 6 of the Criminal Law Act 1997 reads as follows:-

“6.—(1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.

(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless—

(a) he or she or another such member has observed the person within or entering the dwelling, or

(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or

(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or

(d) the person ordinarily resides at that dwelling.

(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation of any enactment or rule of law relating to powers of search or powers of arrest.

18. There are a number of aspects to s.6(2) of the Act of 1997 which must be found to exist before its provisions can be lawfully invoked. As relevant or potentially relevant to this ground of appeal, these include:-

(a) that the purpose of its use must be to “arrest” a person without warrant, for an “arrestable offence”;

(b) that for such purpose the gardaí may enter any premises where that person is, or with reasonable cause suspects that person to be;

(c) that if need be, such entry may be effected by the use of reasonable force;

(d) that where such premises is a dwelling, entry shall not be made unless either:-

(i) with the consent of the occupier, or where

(ii) the member suspects with reasonable cause that before an arrest warrant can be obtained, the person in question will abscond either so as to avoid justice or obstruct the course of it.

19. In this case the D.P.P. accepts that the hotel bedroom may be regarded, not simply as a premises, but rather as a dwelling for the purposes of the section. He does so on the authority of Yamanoha. As this is in ease of the appellant, the court will likewise proceed on that basis, but does so without affording any independent endorsement to what is said in that regard was decided in Yamonoha.

20. There can be no doubt as to the existence of a credible evidential basis to support the following:

(i) that the arrest was in respect of an “arrestable offence” namely, an assault causing harm under s.4 of the Non-Fatal Offences against the Person Act 1997;

(ii) that the purpose of entry was to effect an arrest for that offence;

(iii) that the applicant was in the hotel bedroom at the time, and/or that, the gardaí had reasonable grounds for believing that he would be;

(iv) that the consent of the occupier was neither sought or relied upon to justify entry, and;

(v) that the arrest was effected under s. 4 of the Act of 1997.

In addition, the court is satisfied that the gardaí had reasonable cause to suspect that the applicant would abscond, whether technically so as to avoid justice or to obstruct the course of justice matters not, as that particular aspect of subs.(2)(b) of the section does not feature in the case. The conclusion as to the existence of reasonable cause, is founded firstly on the fact that both accused persons fled the scene after being involved in a most serious assault which resulted in the almost instant death of the victim and secondly, that neither had returned to their ordinary place of residence thereafter. In addition, and of the first significance is the confidential information received by the gardaí, which although not detailed at trial, understandably so, was nonetheless said by Sergeant Kennedy to have come from a trustworthy source with the quality of the information being evaluated as good. Further, as a measure of the seriousness which the gardaí treated this information, they posted personnel at departure points within the State.

21. In opposing such a conclusion, the appellant relies on the contact which he had with Garda Keating on the 19th March, 2008 (para.9 supra). This contact may be looked at in two ways, firstly, as suggested on Mr. Byrne’s behalf, as indicating a desire to arrange his surrender to the gardaí, which it is said is inconsistent with any intention to flee the jurisdiction or to take steps in that regard. However, what denies that contact of importance is his failure to return the phone call as he had promised or indeed, to make any further contact with the gardaí thereafter. In the context of this most serious investigation, the time span between the phone call and his arrest was quite considerable. Therefore, this communication cannot be relied upon as negating the reasonableness of the gardaí suspicions in this regard.

22. In addition, the court cannot accept that by reason of garda presence at the hotel on the 20th March, 2008, the section becomes inoperable and devoid of utility, in that, any attempt to abscond at that point in time may or even could have been foiled by the gardaí. The section does not have such meaning and cannot be read in that way: for if it could it would mean that regardless of what steps or actions had been taken to further an intention to abscond, recourse to this provision could not be had simply, because of possible garda intervention. Each set of circumstances must be considered individually. In addition, the meaning of abscond, for this purpose, is to disappear or make off. Once an escape, for the purposes of avoiding or obstructing justice, is intended, absconding is intended. Therefore, flight may take place from any location. Consequently it cannot be said that it is exclusively geographically based.

23. Moreover, whilst not expressly stated, it was implicit from the totality of the evidence, including the frenzied nature of the assault involving multiple stab wounds, the decision to summon garda assistance, the time span within which the operation was being conducted, and the matters referred to at para.20 above, that Sergeant Kennedy suspected that before a warrant could be obtained the appellant would abscond to avoid or obstruct justice. The court is satisfied that he had reasonable cause for such belief.

24. The complaint is also made that the appellant was not informed as to the purpose of entry at the time of entry. Secondly, that by securing the room and handcuffing both him and his co-accused, their legal rights, and to some extent their constitutional rights, have been interfered with. To deal with this submission it is important to recall that the investigating team did not consider the situation as a suitable one for them to effect the arrest. A decision, following an assessment, was made that help was needed: indeed needed from an armed unit. On the arrival of the SDU the overall compliment of gardaí, with different skills and tasks, thought necessary to effect the arrest, was then in place. The fact that some were from different units is from a legal point of view entirely irrelevant. All were members of An Garda Síochána who were assembled for the common purpose of arresting Mr. Byrne and Ms. Fahy. The first step in that process was to enter the room, render it safe and the occupants secure, so that the intended arrest under s.4 of the Act of 1997 could be successfully achieved. All of this was completed before a minute or thereabouts had expired, within which time in clear and unambiguous language the occupants were told the purpose of entry. What occurred therefore, must be considered as a single operation. Consequently, to suggest that Mr. Byrne was not informed at the time of his arrest as to the reasons for the gardaí’s presence is a suggestion that cannot be entertained. Moreover, whilst described as unacceptable, it has not been suggested that the placement by the SDU of handcuffs on the occupants, amounted to an arrest upon arrest, or that it affected the legality of the arrest executed almost immediately thereafter by Sergeant Kennedy. Therefore, the court cannot accede to the arguments advanced on these matters.

25. The real point of debate under this ground of appeal centres on that part of s.6(2) of the Act of 1997, which permits the gardaí to enter a dwelling house, “if need by, by use of reasonable force”. In this case there is no dispute but that entry was gained by such force. The reasonableness or otherwise of it is not the issue. What is, is the fact that no attempt at peaceable entry was made prior to forceable entry being effected. It is submitted that such is in contravention of the subsection and accordingly, the subsequent arrest is invalid. This submission draws heavily on the decision given in Laide, and in particular on what the court said at para.57 of its judgment which is quoted at para.27 of this judgment.

26. To place the court’s decision in context, it is necessary to briefly outline the background leading to the emergence of this point as being seriously in issue in that case. Armed with a search warrant, which authorised a search in respect of a pair of black shoes with a buckle on them, members of An Garda Síochána arrived at the home of Mr. and Mrs. Laide, at 6.40am on the morning of the 26th September, 2000, whose son was suspected of having been involved in a crime then under investigation.. They were admitted to the house by Mr. Laide to whom the search warrant was read and a copy shown to him. After the search was concluded and the pair of shoes found, Detective Sergeant Doyle arrested the son for murder and was detained under s.4 of the Criminal Justice Act 1984, and who, during subsequent interviews, was said to have made certain admissions. At trial the search warrant was found to be invalid, a finding not appealed by the D.P.P. In Mr. Laide’s appeal against conviction an issue arose as to the lawfulness of the gardaí presence in his parents home at the time of his arrest. As the warrant could not be relied upon for this purpose, the D.P.P. sought to invoke the provisions of s.6(2) of the Act of 1997. Hence the relevance of the case to ground No.2 in the instant appeal.

27. At the outset of its judgment on this issue the Court of Criminal Appeal noted some general principles:-

(i) that the inviolability of a citizen’s dwelling house cannot be interfered with save in accordance with law;

(ii) that the legal basis for any such interference must be expressed in “clear, complete, accurate and unambiguous terms” (D.P.P. v. Dunne [1994] 2 I.R. 537), and;

(iii) that even when so permitted, the manner and extent of such intrusion must be restricted to the minimum required in order to achieve that which is permitted by the authorising source (Byrne v. Grey [1988] I.R. 31).

28. Referring to the specific basis offered as a justification for the entry into the home of Mr. and Mrs. Laide on the morning in question, namely s.6(2) of the Act of 1997, the court noted that the section was “predicated upon an intention on the part of the gardaí to enter for the purpose of making an arrest”. However, as the gardaí had as a matter of undeniable fact, entered to execute the search warrant, and as they never informed the occupiers that they had another purpose in mind (if ever they had) namely arrest, they could not rely on the section to fill the void caused by the warrant’s invalidity. It went on to say that the purpose of entry, namely arrest, had to be explained before entry is “forced” on foot of the warrant. “Forced” in this context must be understood as entry gained. There then followed para.57 which reads:-

“57. In the court’s view a proportionate use of the power contained in s. 6 mandates that before the somewhat draconian power of forced entry is invoked, there would have to have been either no response from a knock on the door or ring of the doorbell, or in the case where such an inquiry is met by the door being opened by an occupant a request for entry would have to be first uttered and subsequently rejected before the gardaí would be entitled to make a forceable entry. It follows that in the particular circumstances of the present case that the least that would have been required to have been done for the members of An Garda Síochána is to have informed the parents that they wished to gain entry for the purpose of search and arrest, if the lawfulness of their presence in the house was not to be removed upon the subsequent finding that the search warrant was invalid”

29. As previously noted counsel on behalf of the appellant says that given the acknowledged absence of any efforts to gain entry other than by force in the instant case, such entry and the subsequent arrest must be declared invalid on foot of this authority. On the other hand the D.P.P. claims that this decision must be read in the context of the facts within the case and should be considered as particular to those facts.

30. It must be correct, undoubtedly so, to say that the facts of both cases differ very significantly. In Laide:-

(1) A search warrant had been obtained for a specific purpose: the search for a pair of shoes thought to be worn by one of those involved in the crime under investigation;

(2) the Detective Inspector, who obtained the warrant, informed Sergeant Doyle, who acted as both the search officer and the arresting officer, of what it related to and asked him to execute the warrant with the intention of finding the shoes;

(3) on arrival at the house the warrant was read to Mr. Laide, the applicant’s father, who immediately took the gardaí to his son’s bedroom where the shoes were found. The search, which had no connection with and was not depending on the suspect being physically present in the house, was then over as the warrant had been executed;

(4) nothing else of relevance was said by the gardaí to Mr. Laide or his wife at the time of entry or indeed at any other time thereafter;

(5) the appellant, Mr. Laide, subsequent to these events, was then arrested by Sergeant Doyle.

31. It is abundantly clear in such circumstances that s.6(2) of the Act of 1997 could have no application to the validity of the garda presence in the Laide house on the morning in question. Indeed, it is immediately obvious that a key feature of the section, obtaining entry for the purposes of arrest, was not even present in the case. It is therefore entirely unsurprising that the Court of Criminal Appeal found as it did on this point. (emphasis added)

32. The instant case however, is entirely different and is so on the evidence above outlined and for the reasons above given. A particular point of distinction should be noted. In Laide the question of forceable entry was never in issue. The gardaí were invited in by the owner who opened the door to them. The issue under s.6(2) of the Act of 1997 in Laide was therefore entirely different. Consequently, the courts observations on that part of s. 6(2) which permits the use of reasonable force if necessary can only be considered as obiter.

33. It seems to this Court that the operation of s.6(2) of the Act of 1997 must be considered in the context in which it has been invoked: in particular as to whether the circumstances justify entry by force. As noted above the extent of the force used in this case is not in issue. What is in point, is the phrase “if need be”. In the court’s view that phrase must be read as meaning, whether in all of the circumstances in which the gardaí are situated, informed by the information then available, there is in their view, arrived at by objective assessment, a necessity to enter by force. In many situations the answer to this will be readily apparent and patently obvious: in other cases much less so. The section has no specific requirement to seek consensual entry. Context is an important determinative in this regard, bearing in mind that the same may be part of an active and ongoing operation being mounted by the gardaí. Take for instance a situation where armed criminals are hiding in a dwelling house owned by one of them. Could Laide possibly be relied upon to suggest that the door should first be knocked at or the doorbell rung? We think not. Surprise may be the essence of the operation. We therefore cannot accept any suggestion, that operational needs as a matter of principle could not also give rise to a necessity for forced entry, if on assessment, that can be objectively justified.

34. By reference to the facts of this case, this Court is satisfied that the actions of the garda team, in assessing the situation as it did and in arriving at a decision that entry by force was necessary, all as part of an immediate and ongoing operational scene, did not breach the provisions of s.6(2) of the Act of 1997 in the manner suggested and consequently this ground of appeal will be rejected.

Ground No. 1

1. That the learned trial judge erred in law or in fact or an mixed question of law and fact in allowing before the jury an alleged verbal admission made by the appellant on his arrest:-

35. This issue arises in the following way: shortly after arrest and caution, the applicant was escorted to the bathroom en-suite in room 155 in circumstances which are not relevant by Detective Garda Traynor and Detective Sergeant Kelly. Whilst there, Mr. Byrne began to speak: before saying anything of significance he was cautioned a further time: he then went on to say the following:-

“Guard, I had to kill him, he was going to kill me. I owed him money and, you know yourself, he was going to fucking kill me. I had to kill him. Once I stabbed him once, I had to kill or he would have fucking killed me.”

Detective Garda Traynor, in evidence, referred to the second caution as given by him, to noting verbatim in his notebook what was said (as herein quoted) and to reading it back to the accused, who however, having been invited to do so, refused to sign it. Detective Sergeant Kelly gave confirmatory evidence on all of these matters.

36. During garda interviews, subsequently conducted, the appellant again refused to sign this notebook entry and took issue with two matters, suggesting firstly, that he had not been cautioned a second time and secondly, disputing the contents of the alleged entry in the notebook. He admitted however to saying “I said he was going to kill me. When I stabbed him once, he kept coming at me and I kept stabbing him in fear for me own life”, but not to the words ascribed to him in the entry.

37. During cross examination it was established that Detective Garda Traynor had not recorded in his notebook this alleged contemporaneous read back of the admission, that during subsequent interview when the issue arose, he had not put to the appellant the fact that the entry was read back to him and nowhere in his statement of evidence did he confirm such a contemporaneous read back: instead noting that he “later” read it over to him.

38. In seeking support for the appellant’s version regarding the caution and content of the note entry, Sergeant Kelly during case examination admitted that he had not included in his statement of evidence any reference to the caution administered by Detective Garda Traynor or to the read back of the admission as suggested by the gardaí.

39. The trial judge in his ruling on this issue said:-

“No, I would have been against the prosecution had that evidence not been given, because like I had the benefit of hearing the evidence of both protagonists, if you like, in this, and I am satisfied beyond doubt, first of all, that the words were spoken and…beyond doubt, because I can see absolutely no reason why they would be altered. The alteration is miniscule in between what the accused was proposing in an interview and what the guard said that he recorded, and was written down and signed by another member of the gardaí as well in his notebook. I – false statements have been made in court but normally for a reason and I can see no reason in this case. So I am quite satisfied the words were spoken, but then whether they are admissible or not I have to say that in that I would have to have a doubt as to the admissibility if there was a breach of the judge’s rules, but I have the evidence of Detective Traynor, and I haven’t a written note of it at the time, but now I accept it was given, to the effect that he read them over at the time. He clearly understood the significance of them, or that in relation to an admission to a killing which, incidentally, was admitted at the interview 2, so I – it is a matter of nuances, I think, but I am quite satisfied that the notes were read over and therefore the evidence is admissible.”

40. As is clear from the transcript, both Detective Garda Traynor and Sergeant Kelly gave evidence in the voir dire on this issue, and both were subject to vigorous cross examination as to the terms of the admission, as to whether the caution was in fact given by Detective Garda Traynor in compliance with Rule 2 of the Judges Rules, and as to whether it was recorded as such in his notebook and read back to the applicant before inviting him to sign: this to comply with the provisions of Rule 9 of the Judges Rules. Moreover, Mr. Byrne gave evidence on these issues. He did so to the effect of denying that the words recorded were said by him and also denying that a second caution was ever given.

41. It is thus quite clear that this essentially became a credibility issue. In such circumstances the trial judge, who had the benefit of observing and hearing the relevant witnesses, was perfectly entitled to conclude that the prosecution had met the required standard and onus of proof in this regard. This is precisely what he did. There was a clear evidential basis for so doing. Therefore, this Court could not interfere with such a ruling.

42. In the aforegoing circumstances Ground No. 3 does not arise.

43. In conclusion, the court will refuse leave to appeal.