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Cite as: [2013] IECCA 1
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Judgment Title: DPP -v- Jason Murphy Neutral Citation: [2013] IECCA 1 Court of Criminal Appeal Record Number: 178/10 Date of Delivery: 01/18/2013 Court: Court of Criminal Appeal Composition of Court: McKechnie J., O'Keeffe J., White Michael J. Judgment by: McKechnie J. Status of Judgment: Approved
Outcome: Quash Conviction; Direct Retrial | ||||||||||||
THE COURT OF CRIMINAL APPEAL C.C.A. No. 178/10 McKECHNIE J. O’KEEFFE J. WHITE J. BETWEEN THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND
JASON MURPHY APPELLANT JUDGMENT of the Court of Criminal Appeal delivered by McKechnie J. on the 18th day of January, 2013. The Charge and Conviction: General Background: 3. The prosecution’s case against the appellant was that on the 27th April, 2007 he, together with others, assembled in a field in Clonmel, Co. Tipperary, from which a number of them later moved to a friend’s house, in a neighbouring estate. It was further alleged that, together with another person, he left that house at about 4 or 5 a.m., and set fire to a Toyota Yaris motor car at about 5 or 5:30 a.m.. This vehicle belonged to Mrs. Anne-Marie O’Neill and was parked about 2.5 feet from the house, in first gear with the handbrake engaged and centrally locked, in the family driveway at 202 Elm Park, Clonmel, Co. Tipperary; this driveway had a 1-in-14 slope inwards from the public roadway towards the house. Due to the intensity of the fire some of the mechanisms melted, causing it to roll forward, so that the front of the blazing car ended up against the front of the dwelling house, in which Mrs. O’Neil and her husband, Mr. Pat O’Neil were upstairs, sleeping. The fire spread from the car to the house. Having smelt the smoke, Mr. O’Neill managed to escape by jumping out of the upstairs window, but his wife was unable to do likewise and tragically died in the fire. 4. Later that morning, the appellant went to another friend’s house – that where Mr. John Paul Coady lived – and cleaned himself up, before returning to the house where he had been earlier, with his own jacket reportedly smelling of smoke and petrol. It is further alleged that he had exchanged jackets with Mr. Jonathan Dennehy. In the words of Counsel for the D.P.P., the “nub” of the case was that in a conversation with two of his friends – the said Mr. Dennehy and Ms. Jannette Coady – the appellant admitted that he had lit the fire, although in a separate exchange with Mr. John Paul Coady he had denied so doing. He further repeated this denial when later interviewed by the Gardaí. 5. In the absence of effectively any other and certainly of any more substantive evidence, the conviction rested exclusively on the statements of Ms. Janette Coady, Mr. Jonathan Dennehy, and to a much lesser extent Mr. John Paul Coady. The first two were arrested for withholding information under s. 30 of the Offences Against the State Act, 1939, as amended, were detained and interrogated for two days before release, after which, allegedly, they freely and voluntarily, returned to the relevant Garda stations and made the statements at issue each of which implicates the accused. The third person was similarly arrested, detained, interrogated and released and in the circumstances more fully particularised at para. 43 infra, he also went to a garda station and allegedly, freely and voluntarily, made the statement in question. The principal argument of the appeal centres on these statements. 6. At trial, each of these witnesses gave testimony that the statements were not given voluntarily but rather were obtained as the result of threats or inducements (“threats”) from the interrogating Gardaí. A voir dire was held to determine the admissibility of the statements under s. 16 of the Criminal Justice Act, 2006, as amended (“the 2006 Act” or “the Act”), with the judge ultimately ruling that each statement was both voluntary and reliable within the meaning of that provision. Thus, such were admitted in evidence before the jury. Appeal:
(ii) refusing to recharge the jury (a) in relation to the law on manslaughter pertaining to a requirement of objective foreseeability of the likelihood of risk or injury to another person, (b) regarding the degree to which the foreseeability element of recklessness relating to arson is subjective, and the related threshold which the prosecution has to overcome to secure a conviction for same, and (c) in order to give an appropriate and adequate corroboration warning; and (iii) refusing to discharge the jury, firstly when it was discovered that one of the jurors attended the same class as a principal State witness, Detective Sergeant Tierney, and secondly, after ten of the jurors deliberated for about ten minutes in the absence of two jurors. First Ground: Admission of Statements Pursuant to s. 16, Criminal Justice Act, 2006: 10. In addition to these matters it will be convenient also to deal with the “corroboration” issue, as the request for a judicial direction in this regard was inextricably linked to the type, nature and quality of the evidence resulting from the successful invocation of the provisions of s. 16. This in turn cannot be looked at in isolation and must be viewed having regard to the manner in which the trial judge instructed the jury as to how they should deal with this evidence. 11. The D.P.P. in reply pointed out firstly that the gardaí witnesses relevant to the issue strongly denied ever making or being party to the alleged, or any threats. Secondly, reference was made to the related dicta of State v. Treanor & Ors. [1924] 2 I.R. 193 (“Treanor”), and Griffin J. in People (D.P.P.) v. Shaw [1982] I.R. 1 (“Shaw”), in the context of statements being voluntary and reliable, with the respondent submitting that in order for the alleged threats to disapply s. 16, such would have to be of a kind sufficient to vitiate the free will of the witnesses and that such was not the case. The following definition of voluntariness, from Treanor was quoted:
12. In relation to the failure to view the videotapes, the D.P.P. says that the appellant made no such request of the trial judge. In fact, despite being explicitly invited to do so he declined to make any application in this regard and therefore cannot now raise the point on appeal (The People (D.P.P.) v. Cronin (No. 2) [2006] 4 IR 329). In addition the trial judge was under no obligation to view the tapes, either in light of O’Brien or otherwise (paras. 30, 55 and 56 infra). Further, no evidential deficit or prejudice arose as a result of the judge’s decision: viewing the tapes would have added nothing to the evidence of threats as the same were alleged to have taken place off camera. 13. Finally, the respondent further noted that all three statements were supported by statutory declaration in accordance with s. 16(2)(c)(i) of the 2006 Act and that the court can also have regard to the nature of the statements in assessing their reliability. Secondly, while conceding that each statement became “other evidence” as per s. 16(4)(b) of the Act, nonetheless the key is that they were individually necessary. Thirdly, the appellant conceded that if held admissible, the jury were entitled to rely on the three statements. In conclusion therefore it was submitted that there is no substance to the s.16 ground of appeal. The Role of the Court of Criminal Appeal: 15. Notwithstanding the expanse of this power however, the developed jurisprudence shows that on certain aspects its role is more limited. One such matter relates to findings of fact made by the trial court which are later integrated into an appeal point on which the C.C.A. is asked to intervene. Case law shows that in such circumstances the appellate court is very reluctant to, and will rarely interfere with such findings. This is for much of the same reasons as apply on the civil side, namely the unrivalled advantage which the trial court has in its ability to see and hear witnesses and to observe their manner and demeanour when giving evidence. Whilst this applies to all factual conflicts it has particular resonance where not only accuracy, but also truthfulness is an issue. 16. It has been said that such findings to which the credibility of a witness is central, should be left untouched, unless they are “so clearly against the weight of the testimony as to amount to a manifest defeat of justice”: see The SS “Gairloch”, Aberdeen Glen Line Steamship Company Ltd. v. Macken [1899] 2 I.R. 1 at p. 18. This case was cited with approval in The People (D.P.P.) v. Madden [1977] I.R. 336 at p. 339, where having noted the distinction between findings of fact and inferences of fact, the Court went on to describe its function, as it touches on both, as being “to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above”. See also People (D.P.P.) v. Kelly [2005] IECCA 50 where the C.C.A. adopted, almost formally, the Hay v. O’Grady principles on the civil side ([1992] 1 I.R. 210). 17. The relevant issue in the instant case on this ground of appeal relates essentially to findings of fact and not inferences and further it must be stressed that the findings as made were wholly or substantially based on credibility. The Statutory Provisions 19. The section goes on to state that:
(a) the witness confirms, or it is proved, that he or she made it, (b) the court is satisfied—
(ii) that it was made voluntarily, and (iii) that it is reliable, (c) either —
(ii) the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. (a) whether it was given on oath or affirmation or was videorecorded , or (b) if paragraph (a) does not apply in relation to the statement, whether by reason of the circumstances in which it was made, there is other sufficient evidence in support of its reliability, and shall also have regard to—
(ii) where the witness denies making the statement, any evidence given in relation to the denial. (a) having had regard to all the circumstances, including any risk that its admission would be unfair to the accused or, if there are more than one accused, to any of them, that in the interests of justice it ought not to be so admitted, or (b) that its admission is unnecessary, having regard to other evidence given in the proceedings. (5) In estimating the weight, if any, to be attached to the statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. (6) This section is without prejudice to sections 3 to 6 of the Criminal Procedure Act 1865 and section 21 (proof by written statement) of the Act of 1984.” 21. Moreover, under its provisions a person could be convicted of the most serious crimes known to law, on an out-of-court statement which is subsequently disavowed on oath by its maker, despite the fact that he and his story may be subject to rigorous scrutiny under strictly controlled court conditions. Consequently, s. 16 is a fundamental departure from traditional common law principles which for good reason, have always placed such high regard on sworn evidence given directly, immediately, and spontaneously before the fact adjudicator. Such principles have their foundation, not solely in the rule against hearsay, but far more deeply rooted in our criminal law system. 22. The preceding events said to have given rise to the enactment of Part 3 of the 2006 Act, of which s. 16 forms part, are well known and do not require repetition in this judgment. It can be said however that its provisions were largely intended to deal with gangland or organised criminality and criminals, many of whom prided themselves as being beyond the law’s reach: in this regard recourse to the most violent means available so as to intimidate witnesses against doing their civic duty in giving evidence was common place. The Legislature, as is its right, responded inter alia with the section in question. Its provisions however do not appear to be so limited in their application, as the instant case shows, where there is an entire absence of any of the features said to have underlain its creation. One way or the other, both the section’s interpretation and application must be viewed not only in light of the public interest which it is said to enhance but also within the bedrock of criminal justice overall. 23. This case does not call for an elaborate analysis of the entirety of s. 16 as the instant issue centres on the twin requirements of “voluntariness” and “reliability”, and on subs. 5 which is particularly relevant given the type of evidence which the section produces. This in turn feeds directly into the judge’s role in charging the jury in that regard. 24. Before dealing specifically with these matters however, some brief observations on the structure of the section is required. Firstly, the manner in which the introductory part of subs. 1 is worded should be noted: it states that a relevant statement “… may, with the leave of the court, be admitted in accordance with this section …”. The use of the word “may”, and not “shall” or similar, in the context in which it is used, clearly implies a residual discretion in the court of trial, to the effect that the reception of such a statement does not automatically follow, even if the statutory requirements have been met. If it was otherwise, the wording would have been such that, on the conditions being satisfied, the court would have been injuncted to admit it, which is not the case. 25. Express recognition is given to this view by virtue of subs. (4)(a), which in fact prohibits a court from admitting a statement, even if the requisite conditions have been established, where there is a risk of an unfair trial or where the justice of the overall circumstances require it. Given the significance of the legal alteration which the provision has brought about, such overall discretion is well justified. 26. Secondly, the section, in addition to having “prohibitory provisions”, also contains what might be called “admissibility provisions” and “weight provisions”: the former are self-evident from the section itself and includes the requirements above mentioned. The latter is contained in subs. 5 which reads as follows:
28. There is one further aspect of the prohibitory provisions which should be mentioned. As with the risk of an unfair trial and the justice requirement of subs. (4)(a), a court is also precluded from admitting a statement if “having regard to other evidence given in the proceedings” such is unnecessary (subs. 4(b)). The key therefore is “necessity”; evidence which is merely supportive, useful, helpful or even desirable is not sufficient. It must be essential in a material and substantive respect. This obviously means that every statement, certainly from different witnesses, must, at this time of assessment, be critically judged against the existing evidence. Anything less will not be in compliance with the “necessity” test. O’Brien: 30. In dismissing the appeal and in determining that the statements were both voluntary and reliable, the C.C.A. (Macken, Birmingham, and O' Keefe JJ.), noted with obvious approval, the careful and “conscientious” approach of the trial judge who, having viewed the video(s) of the interview process in its entirety, placed much reliance upon it. In his decision the learned judge considered the child’s demeanor, her character – being such that in his opinion she fully understood all questions and was “not open to suggestion” – her manner of telling the story and how she coherently moved the narrative forward. He concluded that the statements, which were consistent with others, had not been “cojoled”, in any way out of her. The appeal Court fully agreed with this impressive reasoning and was quite satisfied that the approach, assessment and ruling of the trial court had been such, that its conclusions were fully supportable. As there was no evidence to suggest that anything untoward had taken place which was not recorded, the appeal was disallowed. 31. In reaching the decision as to voluntariness and reliability, the C.C.A. in O’Brien did not draw on any authorities, believing that the trial judge correctly determined the issue by viewing the videotapes which was sufficient for this purpose. On the facts of the case, and in the context of a child witness, this decision was clearly correct. However, O’Brien might be considered as circumstance-specific and thus may be of limited value to other cases involving s. 16. Indeed, as a result, Counsel for both parties in the instant appeal, which relates to adult witness statements, have sought to rely on the analogous case law dealing with “voluntariness”, in the context of confession statements. As the Court can see no material difference in the underlying principles, there is no reason why such should not also apply to that requirement of s. 16 of the 2006 Act. A brief word on this issue may therefore be appropriate. 32. The traditional test of voluntariness in Irish law relating to the admissibility of confessions is to be found in the judgment of Fitzgibbon J. in Treanor at p. 208 :
33. Firstly, as the law has developed, it has become clear that “the form” of inducement which renders a statement involuntary is not limited to a promise or a threat in any traditional or popular sense. In Shaw at pp. 60 and 61, Griffin J. said that confessionary evidence should be excluded if it has been obtained by unfair, or oppresive means in that:
36. Finally, the judgment of Kenny J. in the case of Galvin, at p. 335 provides authority that, notwithstanding the making of an inducement, even one of a type which may otherwise influence the confessor, the confession will nonetheless be considered voluntary where the prosecution proves that there is no causative link between the inducement and the making of the confession, for example where, as in that case, the effect of the inducement has dissipated by the relevant time. 37. In summary, as the aforegoing principles apply to the relevant provisions of s. 16 of the 2006 Act, the position of the Court is to determine whether any relevant statement was made under the influence of an inducement from a person in authority which was calculated to induce that result. The motive or intention of such person is irrelevant. The test has both objective and subjective elements. Even if such inducement is found to have been made, but it did not in fact influence the mind of the person in making the statement, the same shall be regarded as having been made voluntarily and therefore is admissible in evidence. Finally, the burden of proof lies on the prosecution, where it invokes the section, to show beyond reasonable doubt that the statement was made voluntarily. 38. The above relates to the requirement of s. 16 (2)(b)(ii): the requirement of reliability, which is separately specified must also be satisfied (s. 16(2)(b)(iii)). What the precise relationship between both is, has not been explained – neither has what the test involves or what matters should be searched for before any given statement should be accredited with reaching this threshold. It has been said elsewhere that the section under review has been modelled on its Canadian counterpart and has also drawn on s. 119 of the United Kingdom Criminal Justice Act, 2003, as amended. However, as no comparative analysis has been made, nothing further of a specific nature will be said in this regard. The Instant Case: 40. At the beginning of Day 4, after Ms. Coady had given evidence, Counsel on behalf of the D.P.P. informed the trial Court, that all relevant interviews giving rise to the s. 16 applications were video-recorded, and that such were available for the Court’s inspection, if it so wished. However, the prosecution did not itself seek to have these tapes looked at. The judge did not require to have them played and on inquiry was told by defence Counsel, that no contrary application was being made by him. At the conclusion of the tendered evidence the judge ruled on the issue in the manner appearing at para. 46 infra. 41. The relevant evidence given as part of the voir dire shows that Ms. Jannette Coady first made a witness statement on the 27th April, 2007 in which she did not in any way implicate the appellant. She was subsequently arrested very early on the morning of the 1st May, 2007 under s. 30 of the Offences Against the State Act, 1939, on suspicion of withholding information and detained for two days. She was interviewed in all about 10 times: she implicated the appellant for the first time in an interview on day two which commenced at 2.52 p.m.. This was not however the subject matter of a s. 16 application. During the course of her evidence, Ms. Coady said that she was threatened by the gardaí that she would be sent to Limerick prison for five years and that her 5 year old and 8 month old children would be taken from her, if she did not implicate the appellant; however if she did, she could go home. She alleged that she was told what to say by the gardaí in this regard whilst in the interview room, but before they set the videotapes to record, prior to the 2.52 p.m. interview. Ms. Coady continued to be interviewed during her remaining period in custody, from which she was released on the 2nd May, 2007 at 8.20 p.m.. She is alleged however to have returned to the garda station at 8.26 p.m. – just six minutes after her release – on a totally voluntary basis and made the witness statement at issue, incriminating the appellant. 42. Mr. Dennehy was likewise arrested on suspicion of withholding information on the 1st May, 2007. As with Ms. Coady, who was his partner and mother of his two children, Mr. Dennehy was also detained for two days and interviewed 10 times (c.). He did not in any way implicate the appellant during any of these interviews. However, Garda Detective Sergeant P.J. Griffin gave evidence at the voir dire that Mr. Dennehy “intimated” in the last interview, that he “wished to tell the truth and make a voluntary cautioned statement”. He was subsequently released from custody, at 9.21 p.m. on the 2nd May, 2007, before the detention period had expired, but immediately and entirely voluntarily returned to the garda station at 9.26 p.m. – just 5 minutes after his release – and gave the statement at issue, inculpating the appellant. It was alleged by Mr. Dennehy that this statement was made as a result of threats which were repeatedly made off camera by the interviewing gardaí during the second detention day, at different times between interviews and whilst in his cell. He further stated that he was threatened that a special sitting of the District Court would be convened that night, that he would spend 5 years in jail, that his children would be taken from him and that his face would be on the 9 o’clock news. 43. The third relevant witness, Mr. John Paul Coady, a brother of Ms. Janette Coady, was also arrested on the 1st May, 2007 under s. 30 of the Offences Against the State Act, 1939, as amended, detained for 2 days and interviewed a number of times. He admitted to having consumed €50 to €100 worth of amphetamine and 10 to 12 cans of alcoholic beer on the morning of the fire. Statements were made during his detention which did not in any way implicate the accused nor did he intimate prior to release that he wanted to change his statement in order to so do. He was however aware that his pregnant girlfriend, who was also arrested and had been taken from the garda station to hospital where she was questioned by the gardaí. He was informed that his mother was hysterical, leading him to believe that she was “locked up” at that point. He was released from custody on the 2nd May, 2007, and travelled to Galway with his girlfriend, but was followed there by the gardaí. Both individuals were approached and he was invited to make a voluntary statement. It was subsequent to this, that Mr. Coady went to the garda station and made the statement which implicated Mr. Murphy. While he admitted in evidence that the gardaí never explicitly threatened re-arrest of him or his girlfriend at any stage, nonetheless he alleged that he made the statement under the belief that if he did not, he and his girlfriend would be locked up. 44. The relevant gardaí, including Detective Sergeant Tierney, Detective Sergeant Griffin and Sergeant O’Dwyer, all “robustly” (to use the D.P.P.’s expression) denied ever making the alleged or any threats. Detective Sergeant Tierney explained Ms. Coady’s reference to 5 years in Limerick prison, as coming from information, which as a matter of routine, every suspect would be given, as such persons are entitled to know what is facing them if convicted. This it was contended could not constitute an inducement such as could render a statement involuntary or unreliable within the meaning of s. 16 of the 2006 Act. Therefore the allegations of threats as made had been fully responded to by the gardaí. 45. Submissions were then made by Counsel for both prosecution and defence, with the D.P.P. asserting that the statements met the criteria specified in s. 16(2)(b)(ii) and (iii) of the Act. Ruling of the Trial Judge on Admissibility of the Statements:
… Now, I have the evidence of various gardaí and I have the evidence of the three prosecution witnesses -- lay prosecution witnesses, and in relation to those, I am satisfied that the various requirements placed on the prosecution in relation to such an application have been met. I am satisfied that all three parties were interviewed over two days in garda custody and that they were arrested on suspicion of withholding information. I am satisfied that the investigation by the gardaí was properly and correctly carried out; the various interviews were recorded, statements made were recorded, and I’m quite satisfied that if there were some element of the questioning during the interviews or of the taking of statements which was -- which pointed to the lack of voluntariness or indeed lack of reliability of the statements then they may have been adverted to by the defence on the basis of the video evidence. I am satisfied that the statements which were made were in certain respects consistent with each other and I am satisfied that they were validly made. When I say validly made, that is voluntarily and that they are reliable in relation to the events of the night. That being so, I will allow the evidence to be put before the Court, before the jury” [emphasis added]. 48. It seems clear from the synopsis of evidence as above outlined, that there was a “head-on” conflict between the gardaí’s evidence and that of the lay witnesses, on the issue of threats, all of whom were of course also prosecution witnesses. In this regard, no distinction has been made between these three witnesses, although evidently the position of Mr. John Paul Coady differs from the other two both on fact and legal consequences, other than to note that the crucial evidence was that as contained in the statements of Ms. Coady and Mr. Dennehy. 49. As the transcript shows this situation was not one where the allegations were met with some partial denial, or an assertion that while something was said, it had an entirely benign meaning and was in a context readily explainable (apart from the explanation offered regarding reference to 5 years in Limerick prison). It was also not a situation where the issue could have been resolved by some form of intermediate finding such as, that some aspects of the assertions were correct and others not. The fact of the matter is that certain accusations were made, being in many respects quite specific as to substance, and were strenuously denied by those accused of making them. Oral evidence was given by all concerned with each person being subject to cross-examination. The focus of the D.P.P. approach on this issue was not directed at testing memory or recall: it was pointedly based on truthfulness. Therefore, it is difficult if not impossible to see how the judge’s conclusion could have been reached other than by his assessment of witness credibility. 50. It is regrettable however that the ruling of the trial judge, described by the D.P.P. as “terse, but adequate”, was not somewhat more detailed or discursive than what it was. Unfortunately, but factually, it is not informative to an appellate court to simply say that statutory conditions have been met: this is a conclusion which follows from a preceding finding, the basis for which should be set out. As matters were left, one cannot identify any express finding, particularly of fact, on which this conclusion was based. There is no stated explanation or reasons given for the judge preferring some witnesses over others or what impressed him about those whose evidence he ultimately accepted. The resulting difficulty is well demonstrated by reference to the following comment of Ms. Coady made at 2.52 p.m. on the 1st May, 2007: “I have told you the truth. I don’t want to go to Limerick prison”. While it is certainly true to say that such a fear of going to prison may indeed arise from the circumstances explained by Detective Sergeant Tierney (para. 44 supra), it is also certainly possible to consider what was said, as being both plausible and viable, and as a result to view it as giving credence to her allegations. In such circumstances it would have been helpful to know how this conflict was resolved. 51. Another example relates to the timeline of Ms. Coady’s release from custody at 8.20pm on the 2nd May, 2007, and her almost immediate return – some six minutes (which the prosecution maintain was voluntary) – which is undoubtedly curious. Ms. Coady gave evidence that before she went back in, she asked whether, if she did not make a statement inculpating the accused, she would be re-arrested, but that the gardaí did not answer. This she claimed instilled a fear in her that she would be arrested again, which at least in part motivated her return and the making of the later statement. Similar concerns relate to the circumstances involving Mr. Dennehy. Again, it is unclear why such evidence was rejected. 52. As is clearly the case, this voir dire was dealing with a key issue regarding the critical legal vehicle which gave rise to evidence without which, Mr. Murphy could not have been convicted. Obviously therefore, the issue could not have been more important. As a result, some reasons expressed to cover the main areas in controversy are required. Indeed, if the evidential conflict had not been as sharply exposed as what it was, a real difficulty may have arisen in this regard. 53. However, and despite the brevity of the ruling, this Court is satisfied that the only inference possible is that the views of the learned trial judge were purely credit related. Undoubtedly there was evidence upon which he could reach the finding which he did. Given his distinct advantage of being observant of the witnesses when giving their evidence, and the corresponding disadvantage of this Court in not having that facility, such findings therefore cannot be interfered with in the instant case. 54. This is not to say however that a contrary finding in support of the allegations was not likewise open on the evidence. If the learned judge had so decided, the same logic would apply. In light of the evidential scaffolding which created such diversity and noting that the facility of viewing the video recording was not availed of, a word needs to be said about the latter. 55. The appellant has submitted that O’Brien provides authority that, where available videotapes must be viewed in determining the twin requirements of voluntariness and reliability under s. 16 (2)(b) of the 2006 Act. The Court cannot support this interpretation. Nowhere did the judgment so state: in the events which happened, it was not even in issue as the recording was fully considered in that case. Although clearly impressed with how important the viewing of such was to the trial Court, and whilst endorsing such an approach, the C.C.A. did not, as a matter of law, mandate it. 56. Consequently, in the absence of any statutory requirement to this effect, the Court agrees that the trial judge had a discretion in this matter. In many cases, how that will be exercised will become obvious, if not at the commencement of the s. 16 application, certainly before it is ruled upon. There will be a small number of cases however, of which O’Brien is one, where such viewing can only be beneficial. It is not of course possible to identify these en bloc or to devise a preset formula which would offer a ready-made answer in all circumstances. However, where the conflict, based on potentially feasible but conflicting evidence, discloses a situation of seriousness for either the prosecution or the defence or for a particular witness, it is difficult to see what disadvantage there is, in being aided by such a source. A court can never be too informed where the resulting decision can be decisive. Justice for all is best served by prudence. 57. Ireland has been considerably slower than many of its counterparts in adopting electronic recording of interviews. Section 16 of the 2006 Act does not specify such a requirement: if however interviews are so recorded, regard may be had to the tapes, but it is not mandated. While concerns have been raised about the danger of tampering, such as editing or manipulation of perspectives, it cannot be questioned but that videotaping captures significant pauses or hesitations, mannerisms, behaviour, gestures or images of facial expressions. Videotapes therefore have the potential to be particularly useful in dispelling suspicions regarding the voluntariness or reliability of statements, and in protecting the gardaí from allegations of improper conduct. This sentiment is undoubtedly evidenced in s. 16 of the 2006 Act and the significance it attaches to video-recordings. Therefore, in light of the importance attached to such a facility and in the presenting circumstances, the trial judge might have been better informed had the tapes been viewed. 58. However, it follows from what is above stated that a failure, in and of itself to view a recording, without reference to consequences, cannot constitute a sustainable ground of appeal. Therefore, even if Cronin did not stand in the way of this argument, it would have to be rejected. In this context it should be noted that what the Court has done is to decide the submission on the evidence actually available and not on what might have been, if the discretion had been exercised. Its resulting conclusion in this regard is that as outlined above. 59. Finally it should be noted that Counsel for the respondent referred to Galvin where it was held that the effects of a remark at 12.10 a.m. would have dissipated by 2.40 a.m.. This was because the accused had been cautioned twice in the intervening period, his detention status had changed in that to his knowledge he was then being held regarding the murder under investigation and because the questioning had ceased some hours before the making of the alleged threat: the same therefore could not have affected his mind when the admission was made. However, in the case of R v. Doherty (1874) 13 Cox C.C. 23 the Court refused to accept that the affect of an inducement had dissipated between 10 a.m. and 6 p.m. of the same day either simply by the time interval involved or the fact that the accused was cautioned before the admission. Whiteside C.J. (at p. 24) said that it was necessary to show that the subsequent caution had the effect of removing the inducement from the accused’s mind and that such had not been established in the case. 60. This type of point does not arise on the facts of this case as, if the alleged threats were found to have been made, there is no doubt in this Court’s mind but that the resulting statements would be clearly inadmissible. It needs no debate to conclude that the nature of what the witnesses complained of were such that the passage of time could easily have an appreciating rather than a decreasing effect on their free will. However, as stated, the finding was that no threats were made: therefore such case law is not relevant to the instant appeal. 61. At para. 28 supra this Court touched on the “necessity” provision contained in s. 16(4)(b) of the Act. It would appear in this case that instead of each application having been dealt with separately, all three were considered and ruled upon concurrently. Such an approach is not in compliance with the statutory requirement. However, as what the trial judge did was carried out without objection, the Court does not consider it appropriate to now permit the appellant to rely upon this point. 62. In conclusion, by reasons of the matters above stated, this aspect of ground no. 1 must be rejected. Corroboration Issue: 64. The trial judge then informed Counsel what he intended to say to the jury in this regard:
65. On the recharge the jury was addressed as follows:
68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v. Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:
70. Thus, whilst evidence, in order to be corroborative, “does not have to directly prove that the offence was committed” (People (D.P.P.) v. Meehan [2006] 3 IR 468 at 491, para. 56), nor does it have to “corroborate the whole of the evidence of the witness who requires corroboration” (People (D.P.P.) v. Murphy [2005] 2 IR 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some “material particular”. 71. Moreover, while it has been repeatedly stated by the courts that the wording of a corroboration warning does not have to take any particular form (see for example People (A.G.) v. Williams [1940] I.R. 195 (“Williams”), and People v. P.J. [2003] 3 I.R. 550), there are nevertheless, certain essential elements which must be incorporated so as to avoid the charge being susceptible on appeal. At its most fundamental, the warning should communicate in clear and unambiguous terms to the jury the risks, howsoever valued or appraised, of convicting an accused on uncorroborated evidence. They must be made aware of the possible associated danger of relying thereon (People v. Cradden [1955] I.R. 130 (“Cradden”)at 141). 72. Coonan & Foley, in The Judge’s Charge in Criminal Trials (Dublin, 2008) note at paras. 33-24 to 33-26 that it will generally not suffice for a judge to simply refer to the danger of convicting on uncorroborated evidence. Rather,
73. In the further case of The People (D.P.P.) v. Gilligan [2006] 1 IR 107, Denham J. said that there may be multiple factors relevant and that:
75. Furthermore and a matter of some importance is that the judge must alert the jury, where appropriate, to a situation where in fact there is no evidence before the court which can constitute corroboration (Williams, at p. 204). 76. In the instant case it has not been submitted that the learned judge was obliged to give a warning, but that having decided to so do, it must be given correctly. This proposition is self-evident. Unfortunately however, what was articulated in purported compliance with the relevant principles was inadequate, incomplete and apt to confuse, in a number of respects. 77. Before commenting on these matters it should be pointed out that this Court agrees with the views of the trial judge that, provided such statements are credible, each is capable of corroborating the other, with it being a matter for the jury to determine if in fact they do so. No case law has been cited to the contrary and such view accords with general principles. The reference to the supporting evidence being credible is a requirement of all evidence, not just that offered as corroborative or in a s. 16 context. 78. The judge’s description, given on the recharge, of what constitutes corroboration at a general level failed to convey a number of key elements involved, such as the “independence” required of the evidence, and the establishment, of a significant link or connection between such evidence, the accused person and his guilt or innocence, relative to the particular crime. Secondly, the judge should have highlighted the issues surrounding the admissibility of each statement, in particular the fact that inconsistent evidence was given at trial by the makers of such statements, and otherwise should have contextualised the background circumstances. Thirdly, it was not correct to suggest that corroboration may be found “from any other source”: rather, the jury should have been specifically informed that on the testimony available there was in fact no other evidence capable of being corroborative save for the statements. By phrasing it as it was and in the absence of a clear statement to this effect, the jury may well have felt at large to treat any type of evidence as being corroborative. Fourthly, to limit the warning to situations where the jury decide to rely on only one uncorroborated matter, was in the context not meaningful. 79. Consequently, viewing what was said overall in this regard, it must be concluded that the direction was deficient in a number of important respects which were at the centre of the case. This must be regarded as a matter of serious significance, particularly baring in mind the potential dangers of convicting on the basis of statements that had been introduced pursuant to s. 16 of the 2006 Act. The Charge in Relation to the Statements:
82. It is scarcely open to argument but that appropriate directions must be given to the jury, so that they are properly equipped to conduct the exercise demanded. This means that all matters directly and indirectly relevant to accuracy and reliability must be brought to their attention. In the instant case these would include the circumstances by reference to which the statements were admitted, and on the gardaí side, the fact that each was supported by statutory declarations and on the lay witnesses’ side, the individual explanations offered by them for making the statements and for later recanting them. These are but examples of specific matters and do not take from the more general instruction which is required. Unless the jury is so fully informed, their critical role in this context will almost certainly be impaired and could easily be fatally jeopardised. 83. Complementary to what subs. (5) states is what constitutional justice requires of a direction where the jury has such evidence before it. Because s. 16 is of recent origin, as therefore are the issues resulting from its operation, the courts have yet to determine the type of charge which would appropriately meet this changed situation. Accordingly, what is said must be regarded in that light and at the level of principle. 84. The approach suggested could conveniently have a general and specific level to it. General as in all cases where s. 16 is invoked and specific as to particular circumstances, relating to the individual case and that or those aspects of the section which are involved. In addition it will be necessary to isolate the evidence at issue and to treat it quite distinctly from the more general observations which trial judges usually make on the body of the evidence available. 85. On the general side, it seems to this Court that reference should be made: to the historical role of the Hearsay Rule and the reasons that lay behind it; to the court’s longstanding preference to have guilt or “innocence” determined by direct sworn evidence, tested by the safeguards which exist; to the differences between oral evidence and witness statements made pre-trial without judicial control; to the existence of such statements and to sworn evidence which may deny their existence, or their content or be materially inconsistent with them; to the difficulties of reliability presented by such conflict involving the same witness and to the potential dangers of relying on anything which that person may have said, either then or on oath before them, and if they should so rely, what on and to what extent. Finally however, they should also be told that, having regard to the direction as given, it remains a matter exclusively for them to determine what weight or value, if any, they place on the witness’s overall evidence, whether given outside trial or before them. 86. On the specific side they should be instructed, having regard to s. 16(5) of the Act in such a manner so as to reflect the circumstances particular to the case at trial, which in the instant case would include the matters referred to at para. 82 supra. 87. The above approach finds support from the case of R. v. B. (K.G.) [1993] 1 SCR 740, a Canadian authority on somewhat similar provisions: the relevant quote is at p. 804 of the report and reads:
90. In charging the jury as to the s. 16 statements, the judge outlined that the three witnesses were arrested on suspicion of withholding information, were questioned and later released. He noted that Miss Coady and Mr. Dennehy were immediately asked would they return to the garda station and agreed to do so: in that context they made the statements in issue, having declared that what they were about to say was true to the best of their knowledge and belief and that they would be liable to prosecution if anything should be found to be untrue. While he did remark that Mr. Coady, having left that station, was interviewed a day later in Galway and that he had made a similar declaration, he did not mention that this witness and his pregnant girlfriend were followed there, and invited by gardaí to make the statement, though this was admitted by the guard in evidence. 91. The judge then pointed out that the jury had seen the videos of those statements the day before and that the prosecution claimed that they were made voluntarily, whereas the defence’s case was that they were made involuntarily. Notably, he did not in any way allude to the type, form, or content of the inducements alleged by the witnesses. The judge explained that he had admitted the statements pursuant to statute and cited the key elements of s. 16(1). He pointed out that manslaughter and arson are arrestable offences and that the evidence of the three witnesses was materially inconsistent with the corresponding statements which they made in the garda stations. He noted that the statements were proved to have been made and that direct oral evidence of the fact concerned would be admissible in the proceedings, in accordance with s. 16, subs. (2). He further outlined that subs. (2) provides that such statements may be so admitted provided that they are made voluntarily and are reliable. From there he stated:
93. In addition, in light of the foregoing observations, there were a number of inadequacies with the relevant portion of the charge. Most fundamentally, he failed in an overall and balanced way to impress upon the jury the importance of carefully assessing all factors as part of determining what weight they should assign to the out-of-court made inconsistent statements as substantive evidence, in fact it is difficult to see if the jury were ever informed of their duty generally to determine the issue of weight. Further, it could not be said that he sufficiently isolated the evidence pertaining to the s.16 statements, from the rest of the evidence upon which he made general observations. Nor did he at any point allude to the historical role of the hearsay rule, the reasoning behind it, the traditional preference to convict based on direct sworn evidence, or on the difference between oral and pre-trial evidence. He simply noted defence Counsel’s argument that any evidence from the three witnesses must be viewed as suspect and unreliable in light of their subsequent inconsistent statements, and it would therefore be unsafe to convict. This method of commenting on the evidence by simply repeating what Counsel has said, is no substitute for observations coming directly from the judge himself. Such lacks the direct authority of the judge. In addition, he did not explain any potential dangers of relying thereon. 94. More specifically, while the judge did summarise the key points of the prosecution and defence arguments, including noting that the statements were supported in effect by statutory declaration, he did not identify the inconsistencies in the subsequent witness testimonies other than saying very generally that the evidence given under oath contradicted the evidence which he highlighted in summarising the case for the prosecution. Moreover, he did not outline the explanations proffered by the witnesses for contradicting their previous statements. 95. It must immediately be said that the trial judge was offered very little, if any, meaningful help in this aspect of his charge, with the result that the importance of appreciating what type of evidence s. 16 unfolds was largely overlooked. Unfortunately however, the corroboration warning exacerbated the situation rather than alleviating it. In such circumstances this Court, given the significance of the s. 16 evidence, cannot overlook what ultimately must be regarded as an inadequate charge however precisely that came about. Such is so deep-rooted in the conviction that the latter cannot be allowed to stand. 96. Finally, on a related point, it was also submitted that in responding to a requisition, the judge was labouring under the misapprehension that he had charged the jury to the effect that if unsatisfied as to the reliability of the statements they should acquit the accused. As a matter of fact he has not done so. Evidence of Miss Maura Hennessy, Solicitor: 98. Subsequently, the solicitor in question, Ms. Maura Hennessy, was contacted and later gave evidence, but only at a point subsequent to the judge’s ruling on the voir dire. She said that both Ms. Coady and Mr. Dennehy came to her office on the 3rd of May, 2007, but being absent therefrom, her receptionist took the note of what they had to say. That detailed memo dated that same day was read into evidence, and included the following:
101. Ms. Hennessy subsequently wrote to them both on the 10th May, 2007 saying that it would be possible to get a copy of those statements, that they could make further contradicting statements and asking them to contact her to advise whether or not they wanted her to pursue same. 102. In response to this letter, Ms. Coady rang and spoke with Ms. Hennessy, who made a note of the conversation and attached it to the file. While the precise date is unknown, it reads:
104. This was the last contact between Ms. Hennessy and the two witnesses. It should be noted before leaving this evidence that the witness was not challenged as to the accuracy of the records produced by her. 105. No blame attaches to any individual for Ms. Hennessey’s evidence not being available during the voir dire. However, such was clearly of significance in that if accepted it was fully consistent with the threats alleged to have been issued by the interrogating gardaí. Such evidence undoubtedly was relevant and also potentially of considerable significance. Whilst one cannot say what weight in fact the trial judge would have attached to it, nonetheless, at the least, it had the potential of being influential if not persuasive or even decisive. It may therefore have had an effect on the admissibility ruling. 106. Consequently, though no fault attaches to any party in respect of this mater it also renders the trial unsatisfactory. 107. In conclusion, by reference to all of the above matters, this Court is of the view that the trial in an overall way was unsatisfactory and that the conviction should be set aside. 108. In the circumstances, the other submissions as made do not arise for consideration. 109. The Court will order a re-trial. | ||||||||||||