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Judgment


Title:	Director of Public Prosecutions -v- Buck
Neutral Citation:	[2014] IECCA 45
Court of Criminal Appeal Record Number:	69/09
Date of Delivery:	27/11/2014
Court:	Court of Criminal Appeal
Composition of Court:	McKechnie J., Moriarty J., Herbert, J.
Judgment by:	McKechnie J.
Status:	Approved


Judgments by	Link to Judgment	Result
McKechnie J.	Link	Other (see notes)

Notes on Memo: Dismiss appeal against conviction

___________________________________________________________________________

THE COURT OF CRIMINAL APPEAL

[C.C.A. 69 of 2009]

McKechnie J.

Moriarty J.

Herbert J.

Between

The Director of Public Prosecutions

Prosecutor/Respondent

and

John Paul Buck

Accused/Appellant

Judgment of the Court delivered by McKechnie J. on the 27^th day of November, 2014.

Introduction:

1. The appellant, Mr. John Paul Buck, was charged with the murder of one Fergus Roche (“the deceased”) on the 1^st October, 2005 and on the same date, with arson in respect of the dwelling house of the deceased, namely 21, Haywood Close, Clonmel, Co. Tipperary. After a fifteen day trial he was found guilty, by a majority verdict, of both counts and was duly sentenced to the mandatory life term on the murder conviction and to a term of five years on the arson charge. Having been refused permission by the learned trial judge to so do, he now seeks from this Court, leave to appeal against both convictions.

2. The hearing of this application has been deferred on a number of occasions as the appellant previously sought leave to adduce additional evidence which this Court refused, as it did his subsequent application for a certificate, arising out of that decision, under s. 29 of the Court of Justice Act 1924, as amended. Following a similar refusal by the Attorney General, the application then proceeded to a determination.

3. The grounds of appeal are four in number and relate to the following matters of complaint:-

1) The admission into evidence of the alleged confession made by the appellant to Detective Garda Bergin (Ground No. l);

2) The admission into evidence of the fruits of a search carried out at the appellant’s home on the 1^st October, 2005 (Ground No. 2);

3) The adequacy of the trial judge’s direction to the jury on the question of corroboration relative to this alleged confession (Ground No. 3); and

4) The refusal of the trial judge to discharge the jury following extensive media publicity in relation to the appellant’s brother’s attempted escape from Limerick Prison, at a time when the jury were still deliberating on their verdict (Ground No. 4).

Ground Number 1:

4. On the 7^th August, 2006 Detective Garda Bergin (“D/G Bergin”) was on duty at Clonmel Garda Station, which had carriage of the investigation into these crimes, when a colleague received a phone call from Mr. Buck, sometime around 3.00 a.m., to the effect that he wished to meet D/G Bergin at a nominated spot just outside town. On being so informed, D/G Bergin, who was involved in the investigation, duly drove to the location in question and picked the accused up; immediately on entering the car he asked or demanded that the garda would turn off his mobile phone, which he did. After driving around for some 30 or 40 minutes, Mr. Buck was dropped back to his home address, some short distance from where the deceased lived, with the garda returning to the station. Before his shift of duty ended, D/G Bergin, in the early hours of that morning, made a note of the conversation previously had with the appellant. On the following day, the 8^th August, 2006, he informed his Superintendent and Detective Sergeant O'Riordan, of what had happened and then proceeded to make a more comprehensive statement about this matter. Nothing turns on this communication which, in any event, the garda was duty bound to make.

5. It was alleged by the prosecution at trial that during the course of the car journey, the appellant made an incriminating admission(s) to the effect that he had killed Fergus Roche. On tendering such evidence, objection was taken on his behalf, whereupon the learned trial judge embarked upon a voir dire so as to determine the issue.

6. The only evidence given on this matter, during the judge’s investigation of the objection, was that of D/G Bergin, who explained what occurred during the course of that journey. On entering the car and after a brief conversation, Mr. Buck, who appeared agitated and tense, said to the garda: “What’s the story, what’s the story?”, to which came the reply: “What do you mean?”. It is not quite clear if the garda then said: “Why are you agitated?”. Whether he did so or not, is not central. Mr. Buck continued: “You know why, you know why”, and then he said: “I did it. I did it”. The D/G responded “You did what?”, and the reply was that he had stabbed Fergus once in the chest when he was asleep because he had grassed him up. (Day 6, pp.8-9)

7. Immediately having stated this, D/G Bergin started to caution the appellant only to be interrupted with the words “You know and I know what I say and what you say is no good unless it is on tape” (Day 6, p. 9). After another short exchange a second attempt to caution was also made, but was met with the same response. There then followed the final exchange of any relevance with the garda asking the accused why he was telling him this, and with Mr. Buck saying, that he was sorry for what he did to Fergus and that it pissed him off every day.

8. The challenge to the admission of this confession rested on rules 4, 6 and 9 of the Judges’ Rules and/or on the basis outlined by Griffin J. in The People (Director of Public Prosecutions) v. Shaw [1982] 1 I.R. 1 ("Shaw"). In his ruling the trial judge, who held that at no stage throughout this encounter was Mr. Buck in custody, specifically found as a fact, that the garda did not realise what the appellant was about to confess to, accepting for this purpose his evidence, that it could have been about numerous other matters, such as an issue of domestic violence, or drugs related or what was described as the “dog track incident” (see also para. 39 infra). This view of the evidence was in his opinion supported by the fact that during an earlier period of detention, on the 21^st December, 2005, the appellant had made no admissions despite being interviewed on no less than five occasions. In such circumstances it was in the judge’s view:

“unreal to suggest that the detective Garda would immediately have realised that he was about to receive a confession to the murder of Fergus Roche. There was nothing in his responses when questioned following arrest previously, or in his demeanour or attitude as emerges from the answers, to suggest that this was someone who was about to blurt out a confession”. (Day 6, p. 73)

9. The judge also held that the garda had attempted to caution the accused on the two occasions as he stated. Whilst in his view it would have been a good deal more preferable if this had been recorded in either the note or the statement (para. 4 supra), or indeed, in both, nonetheless the judge was satisfied to the criminal standard of proof, that as a matter of fact, he had attempted to do so. The most likely explanation in his view, as to why this had not been noted, was that D/G Bergin had been concentrating on getting down on paper what the accused was alleged to have said. Given the situation in which the garda found himself, and in light of the findings above described as to the garda's state of mind immediately before the confession was made, the timing of his attempted caution(s) could not be faulted. Finally, the fact that the garda eventually put this information into an updated statement on the 27^th January, 2009, did not affect the decision as reached, as he did so of his own accord without being asked or otherwise prompted to do so.

10. In addition, the judge found that the requirements of rule 9 of the Judges’ Rules are qualified by the phrase “whenever possible” (para. 19 infra): as the circumstances made it impossible for the garda to comply with this rule, there could not be said to have been a breach of its terms. In fact in his view, rule 9 had very little application, if any, to the case. Finally, bearing in mind that the entire episode was initiated by the accused and in effect controlled by him, there was no question of any lack of fairness or of fair procedures in a "Shaw" sense.

11. “Fairness” in this context, the judge added, does not require the gardaí to prevent people admitting to serious crime. This statement is entirely correct and fully supported by authority but it must be understood, as the trial judge intended, as applying where the established safeguards, as the circumstances permit and the law requires, have been adhered to.

12. Now, on appeal, the decision to admit is challenged essentially on the same grounds as advanced to the trial judge during the voir dire application. It is claimed, that given the anxious and agitated condition of Mr. Buck, a caution should have been administered before the admission was made, as the garda must have known that some inculpatory statement was about to be offered, it being irrelevant whether it related to the crimes under investigation or to some other form of criminality. It is no answer to say that the accused person organised the meeting or initiated the conversation: the central point had to be the “attendant circumstances”, which clearly showed that Mr. Buck was, in “the threshold” of admitting his involvement in these crimes. The People (Director of Public Prosecutions) v. Breen (Unreported; CCA; 13^th March, 1995; Egan J.) at pp. 6-7 (“Breen”) and The People (Director of Public Prosecutions) v. O’Reilly [2009] IECCA 18 (“O'Reilly”) are relied upon.

13. It is further said in this regard that in view of the omissions from both the note and the statement made by D/G Bergin on the 7^th and 8^th August, 2005, respectively, it was impossible for the trial judge to be satisfied, to the required standard, that any attempt had been made to caution Mr. Buck during the car journey. Therefore he erred as a matter of law in accepting the garda's evidence in this respect.

14. With regard to the alleged admission, more accurately the alleged confession as it was made to someone in authority, it is argued that based on rule 9 of the Judges’ Rules, the substance of its content should have been noted and read over to the appellant before he left the car: alternatively, it is claimed that the content of the said note or statement should have been put to him at the next available opportunity, which was not later than the 30^th January, 2007, when having been rearrested, he was further questioned on several occasions about these crimes. The trial judge in approaching this issue was incorrect in considering only the narrow time frame of the immediate aftermath of the admission.

15. This mistaken view of the law takes on added significance it is said, when one considers the following: on the 26^th January, 2007, some five months after the alleged admission, the gardaí relied upon three pieces of new information, including the alleged admission, to ground a successful application to the District Court for the issue of an arrest warrant under s. 10 of the Criminal Justice Act 1984, so that the accused could be arrested for the second time and further questioned in respect of these offences. That warrant was executed on the 30^th January, 2007.

16. During the course of the subsequent interviews, D/G Bergin, who was involved only in the last two, asked Mr. Buck whether he remembered the conversation which they had on the 7^th August, 2006. Whilst admitting that they had “had a chat”, the appellant insisted that he had not told the D/G that he killed Fergus Roche. In an earlier interview on the same occasion, Detective Garda Dunne also mentioned this conversation and in response Mr. Buck said “he had met him (D/G Bergin) in his car but didn’t tell him anything. If he said he did he’s lying” (Day 6, p. 57). These were the only references ever put to the accused, obviously before the trial, of what is alleged to have occurred on the night of the 7^th August, 2006. Such, it was submitted, was entirely unsatisfactory and failed to address the underlying rationale of rule 9 of the Judges’ Rules.

17. The purpose of this rule, as explained by O’Higgins C.J., in The People (Director of Public Prosecutions) v. Pringle, McCann v. O’Shea, (Unreported; CCA; 22^nd May, 1981) (“D.P.P. v. Pringle”) stated as follows:

“It seems clear that this Rule, which of course is not a rule of law but rather an admonition for the carrying out of fair procedures of interrogation, was designed to achieve the situation which (a) there would be accuracy in the recording of any statement made to be achieved by an early writing down of it so as to obviate errors of recollection and (b) in which an Accused person would at a time when he should have a sufficient memory of what he had said be given an opportunity of challenging the accuracy of the record made.” (pp. 79-80)

It is claimed that what occurred in the context of this investigation, fell short of meeting these requirements in particular that specified at subparagraph (b) of the passage.

18. The Director of Public Prosecution’s (“the D.P.P.’s”) response is to support the decision of the trial judge and to emphasise the importance of the credibility conflict which was central to the confession issue; that was firmly resolved in the respondent’s favour. The evidence given by D/G Bergin was accepted and what was put to him, during the course of cross-examination on behalf of the appellant, was rejected. Such a finding, it is said, is decisive on this ground of appeal.

19. The appellant has referred to Rules 4, 6 and 9 of the Judges’ Rules: whether in fact all of these are relied upon is unclear; in any event they read as follows:-

4. If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words “be given in evidence”.

6. A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely because no caution has been given, but in such a case he should be cautioned as soon as possible.

9. Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.

20. In addition Mr Buck also relies upon the following passage from the judgment of Griffin J., in Shaw, at p. 61 of the report:-

“Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. Because our system of law is accusatorial and no inquisitorial, and because … our Constitution postulates the observance of basic of fundamental fairness of procedures, the judge presiding at the criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement to be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it ‘where it appears to him that public policy, based on a balancing of public interest, requires such exclusion’.”

21. As has been referred to on several occasions, the purpose of the Judges' Rules, in the version applying in this country (see McCarrick v. Leavy [1964] I.R. 225), which are rules of good administration, is to offer guidance in promoting procedural fairness and in preventing confessions being obtained inappropriately. Even however, if such rules are not rules of law they have nonetheless obtained a status of real significance, recognised as such by the common law world: (see R. v. Voisin [1918] 1 K.B. 531 on the origin and early history of the rules, as well as the discussion by Walsh J. in The People (Attorney General) v. Cummins [1972] I.R. 312 at p. 323). A statement, whether exculpatory or inculpatory, obtained in violation of the rules, is a matter of deep concern to the judicial power and will always require searching analysis. As put by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Farrell [1978] I.R. 13 (“D.P.P. Farrell”) at p. 21:-

“The Judges' rules are not rules of law. They are rules for the guidance of persons taking statements. However, they have stood up to the test of time and will be departed from at peril. In very rare cases, such as

R. v. Mills and Lemon

, a statement taken in breach may be admitted in evidence but in very exceptional circumstances. Where, however, there is a breach of the Judges' rules, such as a failure to make a written record of the alleged confession or a failure to invite the accused to accept or reject the statements, each of such breaches calls for an adequate explanation. The breaches and explanations (if any) together with entire circumstances of the case are matters to be taken into consideration by the trial judge before exercising his judicial discretion as to whether or not he will admit such statement in evidence...”

22. As can be seen therefore, any non-observance of the rules will require both an appropriate explanation and an adequate justification for what occurred. However, any breach thereof will not be subject to the same strict exclusionary rule, as is evidence obtained in deliberate and conscious violation of one's constitutional rights; rather it has always been the situation that such a statement, howsoever described, once voluntary, is admissible at the discretion of the trial judge.

23. With regard to the particular rules involved in this case the following brief comment can be made in respect of each of them:-

(i) Rule 4 has several purposes to it; as well as underpinning the fundamental value against self-incrimination, it is designed to impress upon the mind of the subject person, the full implications of that person volunteering a statement or of answering questions put to him: as has been said, “the sense of the caution and every limb of it must be conveyed to the mind of the person to whom it is addressed” (Kennedy C.J. on behalf of the Court of Criminal Appeal in

The Attorney General v. Cleary

[1934] 1 Frewen 14 at p. 17). Equally so what the Court of Criminal Appeal stated in

The Attorney General v. Durnan

(No. 2)

[1934] I.R. 540 (

“Durnan”

), remains as valid today as it was when stated, namely that this caution, “is no idle formulae” (p. 548). Finally, it is also worthy of note that the Court in

Durnan

case also observed that the caution, despite not being ideal, “enshrines the result of long experience”. (p. 548)

(ii) Rule 6: even if a statement has been made before there was an opportunity to issue a caution, such caution must be given as soon as possible thereafter. A careful consideration of the facts of each individual case will be critical to determine if this rule, in any of its several elements, has been breached.

(iii) Rule 9, which for obvious reasons has the qualification mentioned by the trial judge (para. 10 supra), is more focused on statements rather than on interviews conducted by way of questions and answers (O'Malley, The Criminal Process (Dublin; Round Hall; 2009), p. 771). The purpose of this rule was outlined in D.P.P. v. Pringle (see para. 17 supra). The proviso, “whenever possible” will find concrete expression only on an evaluation of particular circumstances and may result in the exclusion of a statement as occurred in The People (DPP) v. McNally (1981) 2 Frewen 43. Finally, this rule does not require the gardaí to write down everything said by the accused, only “statements” must to be noted down (The People (Director of Public Prosecutions v. McKeever [1994] 2 I.L.R.M. 186 (“McKeever”).

24. It is entirely correct to say that at the time of this alleged admission, Mr. Buck was not in custody and was not about to be charged with any offence. His presence in the car was at his dictation. He was the one who decided on making the contact and going through with it? He did not have to turn up and could have left the car at any point. Likewise, he did not have to speak and was not obliged to volunteer any information. He was entirely in control of where he was, how long he would remain and what he said: evidently, there factors are wholly different from a custody or detention situation. Therefore in a strict sense, the Judges’ Rules do not cover the situation of the instant case and thus, in that way, these provisions are shielded from direct application by such circumstances. Thus, quite evidently there cannot have been a breach of such rules. To make this point is obvious but of importance, for the purposes of clarity, regarding both the argument and the decision. Accordingly, the submission so made in this regard must be rejected.

25. However, the rationale which in general underlines the rules, including those in issue in this case, feeds directly into the question of fairness, which is an essential requirement of each and every aspect of a trial held in due course of law, and which obviously includes any issue regarding evidential admissibility. Therefore, the essence of the rules remains relevant, in any consideration of “fundamental fairness”, in the sense used by Griffin J. in Shaw.

26. The most serious, if not the only aspects of what occurred in the early hours of the 7^th August, 2006, which remain in controversy, are whether the admission, as a matter of fact, was made, and if so what were its terms, and secondly, whether the caution attempts took place, and if so, their timing. It is important to note that it is not denied by Mr. Buck that he set up the meeting and that on getting into the car he requested that mobile phones be switched off: that he took an active part in choosing the journey route and that the incident of Mr. Roche’s death was discussed and that he initiated the conversation which gave rise to the alleged confession, which of course through his counsel, he denied ever making. Neither was his statement that what either himself or the gardaí said, was of no “…value unless taped…”, heavily contested. On this latter point it is rational to assume that this statement was made in a context which the trial judge positioned as being in response to the attempted caution(s).

27. In any event it seems quite clear that the issue of credibility was highly significant in determining the admissibility question. On that matter the trial judge noted that the only evidence given was that of D/G Bergin who the trial judge said “particularly impressed me as a witness, being, as it seemed to me, conscientious, careful and measured” (Day 6, p. 72). Having regard to this assessment, impacting as it does not only on his truthfulness but also on his memory recall, the findings made by the judge to the effect that the confession was made, that its terms were as stated, that the garda had no idea what Mr. Buck was about to confess to and that as soon as possible thereafter he had attempted to caution him, were fully justified and soundly based on the evidence.

28. The most important domestic cases relied upon, regarding the alleged deficit in the timing of the caution, were Breen and O'Reilly. The facts in Breen it was said, were similar to the instant case but only, I feel, in the most modest sense, of the accused in that case also being agitated and appearing troubled immediately before making the alleged admission to a Detective Garda Heverin. This garda knew of, but was not involved in, a search which, at that very moment, was being carried out at Mr. Breen's farm, on suspicion that guns, ammunition and explosives, connected to a subversive organisation, were hidden thereat. In the lead up to making the admission, the accused said that he was afraid and was troubled, and that he had wanted to tell someone about this several times. When making this statement he had a bread knife in his hand and was banging the kitchen table. He then said: “I can't talk. Don’t ask me. I’ll end up like those in the North” (p. 3 of the judgment). Detective Garda Heverin, who admitted in evidence that he knew that it was the search which was troubling Mr. Breen, nevertheless failed to administer any caution but instead encouraged him to continue speaking, by saying; “Tell me, Sean” (p. 6 of the judgment). Both the trial court and the Court of Criminal Appeal ruled the resulting confession inadmissible.

29. By far the most significant difference between Breen and the instant case relates to the distinctive findings of fact made by the trial judges in each case, regarding the state of mind of the respective gardaí, immediately before each admission was made. In the present case that finding is referred to at para. 8 supra and elsewhere in this judgment. In the case of Mr. Breen however, it was entirely to the opposite effect, being described by the trial judge as follows:

“‘The Court has no difficulty in reaching a conclusion that, in all the circumstances, Detective Garda Heverin knew or ought to have appreciated that the accused was likely to be on the threshold of admitting some involvement in crime relating to the use of his property for the suspected purpose of storing objects of a military nature for a proscribed subversive organisation. In that premise should D/G Heverin have administered a caution to the accused before any admission was made by him?’”. (cited at p. 4 of the CCA judgment)

The answer in the Court's view was very definitely yes.

Breen

therefore, is clearly distinguishable from the instant case.

30. The facts of O'Reilly, whilst interesting, are not truly material with the decision being noted only for the purposes of highlighting the importance of “context”, where an alleged confession is disputed by reason of the Judges' Rules and/or on a basis analogous to them, i.e. as in Shaw. In his judgment in O’Reilly, Murray C.J. stated:

“It is quite clear, apart from the obligations under the Judges' Rules where those apply, that when a person, even a suspect, is being interviewed by a garda member there is in principle no obligation to administer a caution and this is not affected even if in the course of that interview the person makes an admission of involvement in a crime.

It is only where there are other attendant circumstances so that ‘by reason of the manner or the circumstances in which it was obtained it falls below the required standard of fairness that the question of exclusion arises.’ (Breen at p. 5) … Even then, as the authorities, including the Breen case makes clear, the evidence is admissible and it is a matter for the discretion of the trial judge to determine whether he should exclude it or admit it even if there was a want of fairness. In exercising that discretion the trial judge is entitled and indeed bound to have regard to all the circumstances of the case and the evidence before him. In exercising that discretion he has to decide where public policy, based on a balancing of the public interest requires, its exclusion.”

This passage as stated, is relied upon simply to stress the importance of considering the underlying circumstances which give rise to such confessions.

31. In addition to these cases, it is instructive to look at the issue in a wider context. The Fifth Amendment of the Constitution of the United States, which guarantees rights, inter alia, the same as, or similar to, those guaranteed by Article 38.1 (Re National Irish Bank Ltd. [1999] 3 IR 145) and Article 40.3 and 40.4 of Bunreacht na hÉireann, provides that:-

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury… ; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

In the famous decision of

Miranda v. Arizona

384 U.S. (1966) 436 at 478, the Supreme Court held that within the Fifth Amendment:-

“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime… . Volunteered statements of any kind are not barred by the Fifth Amendment…”. (Warren C.J. at p. 478)

See also J. H. Wigmore, Evidence in Trials at Common Law, Vol. 3 p. 415.

32. In the case of The People v. Tomita, 260 Cal. App. 2d 88 (“Tomita”), a 50 year old man walked into the headquarters of a sheriff’s office with his hands above his head. Without any question from, or any comment by, anyone, he shouted “I done it, I done it, arrest me, arrest me”. A deputy sheriff then asked him what he had done. He answered “I killed my wife”. The deputy sheriff then asked him “what did you kill her with”. He answered “with an axe, that’s all I had”. This was considered to be a voluntary confession and was admitted into evidence. Whether that conclusion would necessarily be arrived at in this jurisdiction on the same facts, may be open to debate, as the sheriff’s follow on question was asked at a time when clearly the individual had confessed to killing his wife. Nonetheless, it shows how reluctant a court is to rule out a confession, once voluntarily made, even when clarification enhances the inculpatory nature of what is said, provided of course that such is not designed.

33. In both Tomita and the instant case, the confessions were freely guaranteed and were not the result of any trick or threat, or connivance or promise, or inducement or by sympathetic or empathic expressions or by any other underhand method. In neither case was there any suggestion that the person making the volunteered statement was drunk, under the influence of drugs or otherwise incapacitated. The only issue was whether the individual in question ought to have been stopped and a caution (Miranda warning) given, before he was permitted to say anything further or before he was asked any clarifying questions by the police officer.

34. Mr. Buck, as stated, was clearly not detained by, nor was he being interrogated by, D/G Bergin. The evidence establishes that their meeting was requested by the appellant and that the elaborate procedures adopted during the course of the car journey were dictated by him. Whilst I accept that these and the other factors outlined at para. 26 supra, are not relieving of any obligations which otherwise exists, nonetheless they are highly significant as to the garda's state of mind and the timing of his attempted cautions. Just as Wigmore has said regarding the Fifth Amendment (para. 31 supra), I regard as a correct statement of the law, the passage in McGrath’s, Evidence (Dublin; Thomson Round Hall; 2004) at p. 384, paras. 8 - 37, which reads:-

“A person is free to make an inculpatory statement if he or she wishes but cannot be forced to do so and if improper or undue pressure or means are used which vitiate the free will of the person, any confession made by him or her will be rejected as involuntary.”

35. In considering whether there is a point beyond which the police should not ask clarifying questions of a person embarking upon, or in the process of, making a completely voluntary confession, Prof. Kamisar argued in Y. Kamisar and J. H. Israel (eds.) Criminal Law and the Constitution: Sources and Commentaries (Ann Arbour, Mich.; Institute of Continuing Education; 1968) at p. 354, that:-

“The line should be drawn between police questions (i) designed to clarify just what the defendant meant to say - the officer responding “did what” when the defendant volunteered “I did it”, and (ii) seeking to enhance a defendant’s guilt or raise the offence to a higher degree, by, for example, getting at the defendant’s state of mind as - “why did you shoot him . . .”.

36. The boundary line might also be crossed where, in the process of purporting to ask clarifying questions, the involvement of the gardaí becomes such as to suggest an interrogation rather than clarification or where the volunteered information, indicates that an arrest, at that point, should be made. These of course are but examples with others, surely to emerge, from the particular circumstances of given cases.

37. In the case of the instant appeal it is quite clear that the findings made by the trial judge were justified and that this Court is bound by them; nevertheless it is also worthwhile to consider what the situation would be, if contrary to his evidence, D/G Bergin had not, in fact, at any time sought to caution Mr. Buck.

38. It could not be said that D/G Bergin intimidated, persuaded or tricked the appellant into making the confession which he did, by reason of his reply to Mr. Buck’s question of: “what’s the story, what’s the story?”. The reply, it will be recalled, was: “What do you mean, what do you mean?”. One must add the exchange which then immediately followed: “You know why, You know why” and “I did it. I did it”. The Garda replied: “you did what” and the reference to killing Fergus Roche was then made (Day 6, pp. 8-9). The questions asked could not reasonably be seen as anything more than a straightforward request for clarity. Their purpose was not to cross examine the accused or to embellish what he had said, for prosecution gain: rather they were asked to remove what undoubtedly were ambiguities in what had been stated. Even if applicable, which it is not, rule 7 of the Judges’ Rules would fully permit this type of interchange.

39. One might surmise that asking “what’s the story, what’s the story”, was a very curious way for Mr. Buck to bring up a discussion about things going on in his life, whether domestic, drug related or otherwise. However, whether this was intended to be a specific question or just an opening conversational gambit, the evidence, as reflected in D/G Bergin’s reply, indicates that he did not know what Mr. Buck meant. D/G Bergin stated in cross examination that “The last thing I expected was in any way to get this information at this time” (Day 6, p. 38). He explained that he did not know what the meeting was about and had no idea as to its purpose or what was behind it. In fact, given the pick up location as specified, the way in which Mr. Buck spoke to him and the hour of the night involved, the D/G said that he thought everything was so unusual that it must relate to something locally (Day 6, p. 37). It was therefore, a complete surprise to him when the appellant stated what he did. D/G Bergin was unshaken on any aspect of this evidence. Different considerations might possibly have arisen if there was evidence that the appellant and D/G Bergin had been in discussion about the Fergus Roche murder before the critical point in their conversation had been reached or if Mr. Buck had even raised the incident before then. Neither situation occurred.

40. I do not accept that, arising out of these exchanges or otherwise, D/G Bergin ought reasonably to have assumed that the accused was or was about to refer to killing Fergus Roche or that he should have refused to allow the discussion to continue, without first cautioning Mr. Buck. He had no reason to so believe, with his knowledge of what had previously occurred supporting this view. Whilst he was aware that Mr. Buck was a suspect in the inquiry, he also knew that during the course of previous interviews, the accused had been totally uncooperative in volunteering any information to the gardaí. Therefore there was nothing of a particular nature to suggest that the appellant was on the threshold of making the confession which he subsequently did.

41. The fact that Mr. Buck made the confession in the mistaken belief that it could not be used because it was not on tape, does not in any way impair the “voluntariness” of the confession, which in any event as a point in itself, has never been disputed. There was no evidence that D/G Bergin had in any way induced that belief. On the contrary, the evidence was that D/G Bergin only became aware that the appellant held this mistaken opinion, after the confession had been made.

42. On the basis, inter alia, of what is stated at para. 24 supra, the case made for the exclusion of the confession based on alleged breaches of the Judges’ Rules, is as I have previously explained, unsustainable. There are several other reasons for this conclusion including the fact that D/G Bergin was not putting questions to Mr. Buck about the murder of Fergus Roche and that Mr. Buck had not in any way signalled in advance his intention to volunteer the statement, which he ultimately did. Given these and the other factors as mentioned, it cannot be said, as required by rule 9 (para. 19 supra), that the appellant made “[a]ny statement…in accordance with the above rules…”, that is rules 1 to 8 inclusive. Therefore beyond argument, the Judges’ Rules are not applicable.

43. It has also been submitted that by way of analogy with rule 9, that the appellant’s confession should not have been admitted into evidence because D/G Bergin had not written down what Mr. Buck had said, had not read it over to him and invited corrections, and finally, had not asked him to sign the revised version, all of which should have occurred before he left the car. This submission must be considered by reference to the provisions of rule 9, which although set out at para. 19 supra, would benefit from being repeated. It reads:-

“Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it had been read to him and he has been invited to make any corrections he may wish.”

44. I am totally satisfied on the evidence, that even if the confession could be considered as being prima facie excluded on the basis, obviously not of rule 9 but by association with it, there was a justifiable explanation given by D/G Bergin as to why in the circumstances of the case it was neither possible nor practicable for him to have done what is suggested by the rule (D.P.P. v. Farrell p. 21: McGrath, Evidence, p. 413). The trial court so found, and this Court is entirely satisfied on the evidence, that D/G Bergin did record in his notebook, at the earliest possible opportunity, exactly what Mr. Buck had said to him (McKeever at p. 196). Given such findings, this Court should not interfere with the exercise by the trial judge of his discretion to admit the confession in light of the wholly adequate explanation offered, as to why it could not have been reduced to writing until it was and as a result why it was not possible to comply, by analogy, with the remaining requirements of rule 9 of the Judges’ Rules.

45. Finally, it would appear to obviously follow from the above that the Court's conclusion on the fairness argument is likewise to the same affect and that the submissions made in respect thereof must also be rejected. In these circumstances, this ground of appeal is not sustainable.

Ground Number 2:

46. On the 1^st October, 2005, on information sworn to Inspector Duggan (as he then was), the District Court issued a search warrant pursuant to s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which authorised Detective Sergeant O’Riordan (“D/Sgt O’Riordan”) to enter and search the premises known as No. 6 Haywood Close, Clonmel, Co Tipperary, and to seize and retain, any matter or thing found therein which might relate to the offences above described. This of course was the dwelling house of the appellant.

47. Citing the circumstances in a neutral sense, the gardaí entered this dwelling house on the 1^st October, 2005, and continued with their search on the 2^nd October, 2005: this lead to the creation of exhibit no. BFH9 which was entered into evidence. That exhibit included items such as zips, buckles and burned pieces of fabric, which the gardaí retrieved from a potbelly stove in the back garden of Mr. Buck’s dwelling house. No additional statement of evidence was served with regard to these items until the particular day of the trial when the prosecution intended to offer this evidence. At that point the defence, as it was entitled to, put the prosecution on full proof of the admissibility of what it called “the fruits” of this search.

48. Although the items comprising the exhibit which is in issue were not obtained until the 2^nd October, 2005, the point is not being made that even if the original execution of the warrant had been valid, the presence of the gardaí on the premises on such occasion, was nevertheless still unlawful. It is therefore accepted that subject to this major caveat, the search carried out on the second day can be regarded as a continuation of the original search.

49. Evidence was given on this matter by two prosecution witnesses. Inspector Duggan said that at a special sitting of the District Court in Clonmel on the 1^st October, 2005, he swore information before the sitting District Judge upon which the warrant was issued. He was then asked in direct evidence:

Q. “And in relation to the first search warrant that was issued on the 1

^st

October 2005, again that warrant, I think, authorised Detective Sergeant DF O’Riordan to carry out that search; is that correct?

A. “That’s correct, Judge.”

Q. “And he did - the warrant was executed and the search was carried out?”

A. “It was, Judge, yes.” (Day 4, p. 24)

This exchange took place, without objection, between prosecuting counsel and the Inspector, who evidently knew who the nominated executing officer was. There was no cross-examination on the point.

50. The D.P.P. also called Detective Sergeant Brendan Franklin (“D/Sgt Franklin”), whose name gave rise to this exhibit number, who said that when he entered the dwelling house of the accused at 4.00pm on the 1^st October, 2005, he recalled that D/Sgt O’Riordan, whom he knew had possession of the warrant, was already on the premises, at that time.

51. In the submissions as made both to the trial court and to this Court, it was claimed on behalf of Mr. Buck that the evidence given, did not establish that D/Sgt O'Riordan had been present on the occasion of the original entry so as to execute the said warrant. On that basis an application was made to have the evidence contained in the exhibit disallowed, as the addressee of the warrant had not been called to prove its due execution.

52. In reply to this submission the respondent referred to the above evidence and also to the warrant itself (exhibit 32), and in particular to the endorsement thereon which read: “Executed @ 3.43pm on the 1.10.05”, with both the name and signature of D/Sgt O’Riordan then appearing. It was claimed therefore that the warrant spoke for itself and accordingly, such was sufficient evidence of the fact that it had been properly executed.

53. The trial judge (Birmingham J.) ruled (Day 4, pp. 51-52), inter alia, that:-

“If that weren’t so, the question would arise as to whether any non-compliance involved a breach of constitutional rights or was simply a question of illegality, and it seems to me in that regard that this would be situation which would amount to an illegality as distinct from unconstitutionality, in that the order of the District Court had operated to permit the otherwise inviolable dwelling house to be entered and searched. It’s certainly the case that that doesn’t amount to, in any sense, the giving of a blank cheque, but any departure, if there was a departure, would have been in the purest, most technical sense, and it seems to me that that would be a question of illegality rather than unconstitutionality, and if that were so, that would raise the question as to the Court having a discretion and in a situation where a Court had authorised the conduct of a search, potentially over a week period, either for a search that went on for one week or for a number of different searches conducted within that week, it seems to me that the arguments in favour of exercising a discretion to permit the fruits of the search to be given in evidence would be very strong, and if it were the case … that I was satisfied that there had been a non compliance with the statute, a non-compliance amounting to an illegality, but not such as to render the actions of the gardaí amounting to an unconstitutional search, then in that situation I would have been prepared to admit the evidence in the exercise of my discretion. In any event, as I say, I’m satisfied that there has been sufficient compliance - there has been compliance, and I’m prepared to admit the evidence.”

54. This Court is acutely aware of the invasive nature of a search warrant and of the potentially incriminating results which its execution might have. Without lawful authority any entry, search or seizure of material, and its subsequent use as potential evidence, would be unauthorised. These steps therefore constitute a major incursion into deep rooted constitutional provisions such as the inviolability of the dwelling house and the liberty of the person. To this end I am entirely satisfied that, even if not bound by them, I would fully support the observations of Keane J. in Simple Imports Ltd & Ors v. The Revenue Commissioners & Ors [2000] 2 I.R. 243 ("Simple Imports") where at p. 250 he said:

“Search warrants, such as those issued in the present case, entitle police and other officers to enter the dwellinghouse or other property of a citizen, carry out searches and (in the present case) remove material which they find on the premises and, in the course of so doing, use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant. These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society, but since they authorise the forcible invasion of a person’s property, the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met.”

55. This requirement of due compliance must surely be the most fundamental matter for consideration, assuming that a valid search warrant has been obtained. If the warrant has not been legally executed, it can offer no authority or justification, for the garda presence in a dwelling house, or otherwise act as a lawful basis upon which any evidence obtained during the course of a search, can be admitted in a court of trial. This point is quite distinct from other situations where, for example, the information grounding the application is insufficient or plainly wrong, where the decision granting such warrant is impugned, or where the terms of the warrant are deficient, by inclusion or omission. These are matters which only arise for consideration if and after the warrant has been duly executed by the addressee member.

56. This Court has already pointed out the importance of strict compliance with all legal conditions which effect the execution of search warrants. The rationale behind this requirement, and the Court’s insistence on its compliance, is entirely justified for the reasons above advanced. The question therefore remains as to whether there was sufficient evidence, which would have enabled the trial judge, to conclude beyond a reasonable doubt (as he did), that the warrant had been so executed. In this Court’s view there was not.

57. The Court has not been informed of any statutory provision which makes an endorsement on a warrant, as to its execution, admissible to prove the truth of that fact. Without more it must therefore be regarded as hearsay and thus inadmissible. A warrant is not a “public document” (R. v. Halpin [1975] 2 All E.R. 1124) which is an exception to the hearsay rule, so that statements in such a document are proof of their contents. Likewise it is not a business document within the provisions of Part II of the Criminal Evidence Act 1992.

58. It has long been established (Montgomery’s Justice of the Peace of Ireland (3^rd ed. 1871) citing Crozier v. Cundy 9D and R 224, Price v. Messenger 2B and p 158, and Bell v. Oakley 2M and S 259) that the person named in the warrant as authorised to execute it, must strictly observe the directions of the warrant and the powers of search and seizure as given by it: he must also fully comply with any relevant statutory provision or rule of law or any combination of both (see the Law Reform Commission Consultation Paper on Search Warrants and Bench Warrants [LRC CP 58 - 2009], from p. 125: and R. Stone The Law of Entry, Search and Seizure (Oxford; Oxford University Press; 2005; 4^th ed.).

59. In J. O’Connor The Irish Justice of the Peace (Dublin; E. Ponsonby Ltd; 1915; 2^nd ed.; Vol. 2) at p. 1186, the author states:-

“The warrant is a sufficient authority to the police officer to use force if necessary for the purpose of entering [2 Hale. 151] but he should first demand admission (

Launock v. Brown

[1819] 2 Barn and Ald. 592)…He should also, is it submitted have the warrant with him…”

60. The evidence of Inspector Thomas Duggan (para. 49 supra) that the search in question warrant was executed has to be hearsay. There was no evidence that he was present at any stage either immediately before or at the time of entry or for that matter, even during the search. This is not to say that it is only the nominated garda who could prove due execution, although he or she could undoubtedly give the best evidence in this regard. As was pointed out in the Law Reform Commission Consultation Paper on Search Warrants and Bench Warrants, situations arise where:-

“Although a search warrant will be directed to a particular officer, it may also provide that he or she can be accompanied during the search by other persons. Specifications as to who may accompany the officer vary between Acts. Accompanying individuals may be a member of the Garda Siochana, another officer in the same role as the warrant-designated individual, or may be “any other person” whose presence is deemed necessary during the search. Search warrants directed to both members of the Garda Siochana and to individuals holding other official roles can allow for assistance by other persons at the time when the search is carried out.” (para. 4.67)

When this happens, any member who was present and who witnessed the appointed person executing the warrant would be competent to give such evidence. This type of situation is quite different from where, for example, an extension of a detention period is required and therefore the state of mind of the authorising officer is relevant. In this case the simple fact of the matter is that Inspector Duggan laid no basis upon which he could verify what he purported to do.

61. It is stated in Archbold Criminal Pleading, Evidence and Practice (T.R. Fitzwalter Butler and Marston Garcia (eds.); London; Sweet & Maxwell Ltd; 35^th Ed.; 1962) at p. 477, para. 1156 that the legal presumption of regularity, omnia praesumuntur rite esse acta, applies even in a case of murder; so one can presume that a man who has acted in a public capacity was duly appointed and has properly discharged his official duties. However, what McCarthy J. said in The People (Director of Public Prosecutions) v. Byrne [1989] I.L.R.M. 613 at p. 619, regarding this presumption must be respected, so that in reality its use is limited: the learned judge stated:-

“…there is a wide gap between a presumption in favour of the regularity of acts and against misconduct and bad faith and that degree of proof required not merely in every criminal trial, as such, but, also, in every instance of what is, on its face, a breach of the constitutional right to personal liberty.”

62. This issue was also debated in Scott v. Baker [1969] 1 Q.B. 659, where Lord Parker C.J. in dealing with the facts of the case stated, pointed out that the justices had found, as a matter of notoriety, that police officers throughout the country had been issued with breathalyser devices. The prosecutor accordingly argued that the presumption omnia praesumuntur rite esse acta meant that the only proper inference was that the Secretary of State had approved of the devices as supplied. At p. 672, the Lord Chief Justice stated:-

“I think for myself that one ought to take very great care in a criminal case as to the length one goes in applying that presumption.”

At p. 673 he continued:-

“. . . in most cases the point may never be taken at all, that will amount to an admission by the defence that the Secretary of State has approved the device as an issue. …But if . . . there is an issue raised . . . it seems to me . . . something must remain to be done, and that is to prove other than by way of a rebuttable presumption, because the presumption has been challenged, that approval was given to the type of device used.”

At p. 674 Lord Parker C.J. further stated:-

“In my judgment it would going a very long way in the present case to say that because the police as public officers should act properly in the administration of this Act, that therefore one can eliminate any question of mistake and assume that they were using a device which has properly been approved by the Secretary of State.

…

Bearing in mind that this is a criminal case, it seems to me that it would be going much too far to press the presumption of omnia praesumuntur to the length of saying that there was a prima facia case here that the device used was of a type approved by the Secretary of State.”

63. Waller J. agreed with the decision of the Lord Chief Justice. In the course of his own judgment he referred to the case of Swift v. Barrett [1940] 56 T.L.R. 650 (“Swift”) which was an appeal, by case stated, arises from a conviction for failing to comply with a “Halt at major road ahead”, sign. The conviction was quashed on appeal. In giving judgment Hilbery J. held:-

“There was a breakdown in the chain of evidence which could easily have been repaired by the production of the regulation under which the sign was placed on or near the road, coupled with the testimony of a police constable that the sign placed on or near the road was in accordance with the regulation. There was no practical difficulty in supplying the link in the chain; having failed to do that, however, the prosecution ought not to have succeeded.” (p. 651)

I mention

Swift

only to say that I would not accept, at least without major qualification, an approach that a prosecution must be dismissed simply because it has failed to supply a link in the chain of evidence, when there was no practical difficulty in so doing. The consequences of such failure must be individually considered, as must the state of the admissible evidence, such as it is in the absence of the “missing link”.

64. In I.R.C. & Ors v. Rossminister Ltd Ors [1980] AC 952, a case also referred to, Viscount Dilhorne giving the judgment of the majority in the House of Lords (Lord Salmon dissenting) held at p. 1006:-

“When taking so many documents as were taken in this case, mistakes may occur and some documents may be taken that should not have been. But the fact that they should not have been does not, in my opinion, justify the conclusion that the other documents taken were not taken after adequate examination and in the belief that they might be required in evidence.

Omnia praesumuntur rite esse acta.

If the respondents claimed the entry into their premises was a trespass, they would be met with the answer that the warrants made the entry legal. If they assert that following a lawful entry, documents and things were seized and removed when there was no right to take them, the onus, in my opinion, lies on them to establish a prima facia case of that and that, in my opinion, they have not done.”

65. That case it must be noted was not however a criminal trial but rather was a proceeding involving judicial review of the warrant and the resulting seizures of the search material. As such I do not consider it to be of any great assistance in the present case. Finally, in Dillon v. The Queen [1982] AC 484, a policeman had been charged with an offence of allowing the escape of persons held in lawful custody. The Privy Council observed that there had been no affirmative evidence at the trial that the persons who escaped had been in such lawful custody. They held that this was an essential element in the offence and that omnia praesumuntur rite esse acta could not be relied on, to establish that element.

66. From the above the following conclusions can be arrived at for the purposes of this case:-

(a) the presumption of law

omnia praesumuntur rite esse acta,

otherwise known as the presumption of regularity, applies in criminal cases;

(b) in such cases however, one must take very great care as to the length one should properly go to in applying the presumption;

(c) in general a court should be slow to apply the presumption in a criminal trial, given that the onus of proof rests at all times with the prosecution and especially where constitutional rights, such as that in Article 40.5 of the Constitution as to the inviolability of a dwelling, are in play;

(d) the person authorised by the warrant must duly execute it; this cannot be done by one of the accompanying members of the Garda Síochána. In any event it has never been suggested that some member, other than D/Sgt O’Riordan had purported to do so.

(d) the fact that there was no cross examination of Inspector Duggan or of D/Sgt Franklin did not amount to an admission or concession by the accused that the warrant had been properly executed.

(e) whilst the evidence established that on the 1^st October, 2005, D/Sgt O’Riordan had possession of the warrant and also that both he and D/Sgt Franklin were in the dwelling house of the appellant in or about the relevant time, these facts of themselves are not sufficient so as to apply the presumption, and thereby conclude that there was prima facie evidence of due and proper execution by the authorised member;

(f) this conclusion is not undermined by the fact that D/Sgt O’Riordan is a public officer and can therefore be expected to act properly in the execution of the warrant; affirmative evidence to that end is and has always been required;

(g) in the end the simple fact of the situation is that there was a prosecution failure to properly prove execution, and as a result,

(h) the Court is satisfied that when accumulating the evidence for exhibit “BFH9”, D/Sgt Franklin was a trespasser in the appellant’s dwelling house at the time.

67. The next question is to determine the consequences of this finding. There cannot be any doubt but that in the absence of having established due execution beyond a reasonable doubt, the warrant cannot be relied upon as founding a lawful authority for the garda's presence on the premises, in particular on the 2^nd October, 2005, when the challenged material was seized. Therefore in the absence of any other justification, of which there is none, it must follow that D/Sgt Franklin was, as stated, a trespasser at the time.

68. The consequences which follow from this decision, regarding the admissibility of evidence, have been considered by the courts for several years in other cases involving search warrants. In The People (Attorney General) v. O'Brien [1965] 1 I.R. 142 (“O’Brien”) a distinction was drawn between evidence illegally obtained and that obtained in deliberate and conscious breach of one's constitutional rights. With regards to the former, the trial judge was given a discretion whether to admit or not, whereas with the latter, at least as and from the decision of The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 (“Kenny”), no such discretion existed save in special circumstances. The trial judge in the instant case held that as the infringement was a mere “illegality” he would, in the exercise of his discretion, admit the evidence.

69. In the Court’s opinion there is much to be said for this view, as in cases such as O'Brien, Kenny and several others the warrants in question were for various reasons, inherently invalid. That is not the situation in this case. If challenged by the accused as to the lawful authority for being in his dwelling house, D/Sgt O'Riordan would undoubtedly have produced the warrant then in his possession; which warrant in every respect authorised his and his colleague’s presence thereat, subject to its proper and due execution. Accordingly O'Brien, Kenny and other like cases, discussed in this context, can be and evidently are, distinguishable. Consequently this Court believes that the trial judge's approach to this issue, which vested in him the discretion so exercised, is likely to have been well founded.

70. Even however, if this view is incorrect and the evidence should have been treated as having been obtained in breach of constitutional rights, in the Kenny sense, such a conclusion has no impact on the safety or security of the verdict as the evidence in question was at most, peripheral in the trial. It was not identified by the trial judge as potentially constituting corroboration and otherwise seems to have played virtually no part in the presentation or defence of the case, or in the judge's charge to the jury. In these circumstances, and for the reasons given, the consequences of non-execution do not impact upon the verdict.

71. Accordingly this ground of the appeal must also fail.

Ground Number 3:

The adequacy of the charge on the issue of corroboration: Section 10 of the Criminal Procedure Act 1993 (“the 1993 Act”)

72. The trial judge was satisfied that the circumstances of the case were such that he should give a direction to the jury on the question of corroboration regarding the alleged admissions made by Mr. Buck to D/G Bergin on the 7^th August, 2006. His reasons for doing so are not in issue. He thus proceeded to tell the jury:

“Now, in 1993, a law was passed which requires a trial judge, whenever evidence of a confession which is uncorroborated is being put before a jury, to instruct the jury to take due regard to the absence of corroboration; corroboration being independent evidence confirming or supporting the evidence of the confession. If you conclude that this is a case where there is no corroboration, then it is very important that you should have due regard to that fact, and that you should approach such a situation with particular care. In a situation where a confession is entirely uncorroborated, it can be dangerous to convict, and that is why in such - that’s why such a situation has to be approached with the utmost care. However, even in that situation, even in a situation of an uncorroborated confession, you are perfectly entitled to convict if you are indeed satisfied beyond reasonable doubt of the making of the confession and of the truth of the confession. The law does not state that you cannot convict without corroboration, but rather that you should specifically consider the absence of corroboration and what weight, if any, you should give to that factor. Provided you do that, then your decision is entirely a matter for you. It’s a matter for your own good sense, for your judgment and your conscience.” (Day 14, p. 17)

73. The learned judge then continued by identifying aspects of the evidence which in his view were capable, as a matter of law, of amounting to corroboration but stressing in the process that whether such items in fact, amounted to corroboration, was an issue entirely for the jury. In addition, as well as having explained the meaning of corroboration in the passage quoted, he did so again on a number of subsequent occasions.

74. By way of requisition, counsel on behalf of Mr. Buck complained that the judge did not adequately explain to the jury why such a warning was necessary. In support of this submission he quoted from The People (Director of Public Prosecutions) v. Connolly [2003] 2 I.R. 1 (“Connolly”) and in particular relied upon the following extract from the court’s judgment, delivered by Hardiman J. which appears at p. 16 of the report:-

“Accordingly it is not unduly burdensome, in my view, to require that corroboration be explained. It is also necessary, I think, briefly and meaningfully to explain why it is natural to look for corroboration in serious cases and equally why, in some cases even the most diligent search will be unavailing. The facts of the individual case will suggest appropriate illustrations. Depending on the individual case it may be desirable to say something about why corroboration would be desirable in confession cases especially and the extract from a suggested possible charge to a jury in the Martin report, quoted above, may be useful here.”

The form of words ‘… there have been a number of instances in the past where admissions have subsequently been proved to be unreliable’, is neutral, in that it does not, quite correctly, attribute this wholly to malfeasance. It may not be necessary in every case and the circumstances of some cases may require a stronger warning.”

75. The trial judge, although satisfied as to the adequacy of his original charge nonetheless returned to the issue by way of recharge. Once again he pointed out the central importance of the evidence of D/G Bergin, without which in his view the prosecution would have no case. He continued:-

“The reason why the law draws a distinction and requires a jury to consider whether they are dealing with a confession that is corroborated or an uncorroborated confession and requires them to approach uncorroborated confessions in a particular way is that, before 1993, and before that law was passed by the Oireachtas, historically there were difficulties with uncorroborated confessions and there were controversies some of them major ones. Some of you, not all of you, some of you are probably old enough to remember the cases like the so-called great train robbery and what happened is that the Oireachtas passed a law which says that when confession is uncorroborated, the jury should have due regard to it.” (Day 14, p. 36)

There was no further requisition arising out of this recharge.

76. Section 10 of the 1993 Act reads:-

“10.(1) Where at a trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.

(2) It shall not be necessary for a judge to use any particular form of words under this section.”

77. This Court is fully supportive of the decision in Connolly and, at the level of principle, would restate that all trial judges should remain acutely conscious, not only of these statutory provisions, but also of the wider jurisprudence dealing with corroboration in general. However, it is also important to emphasise that a judge, having decided to give what may be described as a corroboration warning, is not bound to do so in any particular form or by the use of any particular words: as indeed s. 10(2) of the 1993 Act makes clear. What the charge must achieve however, is that the jury be given a clear explanation as to what corroboration is, told whether there is or is not evidence in the particular case capable of amounting to corroboration, and if so, what that evidence is: further, if there is, they must also be informed that it then becomes a matter for them to decide whether such evidence is, as a matter of fact, corroborative. The judge will continue, by the use of phraseology commensurate with the degree or level of warning which he intends, to say that even if there is no corroboration the jury nonetheless is entitled to convict if satisfied as to the accused’s guilt beyond a reasonable doubt.

78. In my view the judge was very careful in his treatment of the corroboration issue. Not knowing whether the jury would find as a matter of fact the existence of corroboration, he was obliged to charge them on the alternative basis. He did so. He explained on several occasions the meaning of corroboration and correctly identified five aspects of the evidence which were capable of being treated as such. He repeatedly told them that it was very important to have due regard to the absence of corroboration, if that was their finding, and that in such circumstances they would have to look at the case with the utmost individual care. Indeed if they so concluded, it would in his view, be “dangerous to convict” the accused person. He pointed out that the alleged admission(s) were made in what he described as an “uncontrolled environment” that is whilst driving around the outskirts of Clonmel in a garda car and furthermore were made only to a single member of the force. He urged the jury to use their own good sense, their judgment and their conscience, when considering the matter.

79. Any lingering concern which one might have as to the adequacy of the contextual background to the corroboration change was fully dispelled by the recharge. Again no particular form of words or phraseology is necessary but in the passage above quoted, the judge makes clear that in the past there were considerable difficulties with uncorroborated confessions which gave rise to major issues of controversy. Any reasonable interpretation of these remarks could only lead to a conclusion that, admissions so uncorroborated, had to be regarded with a deep sense of unease if not indeed with outright suspicion. The Court is thus satisfied that when the charge and recharge are considered in unitary form, the jury was left in no doubt about the risk of acting on uncorroborated admissions and the reasons why they should be particularly astute in their treatment of such evidence. This ground of appeal must therefore be rejected.

Ground Number 4:

80. On the evening of the 24^th February, 2009, the jury, which had commenced their deliberations earlier that day, were sent home without having reached a verdict. On the following morning, during the course of its “Morning Ireland” programme, RTÉ Radio 1 broadcast an interview with a journalist regarding an attempt by the appellant’s brother, Anthony Buck, to escape from Limerick Prison with another inmate. This two minute interview was transmitted sometime between 7.30am and 8.00am and during the course of it Mr. Anthony Buck, who was described as being in his early thirties, was stated to be serving a life sentence “after he stabbed Dave Nugent to death in Clonmel in 1996”. In addition, both the Irish Independent and the Irish Examiner carried articles by the same journalist concerning the same subject matter, with the Examiner drawing colourful parallels between the attempted break out and the escape depicted in the movie “Shawshank Redemption”.

81. When the Court assembled on the 25^th February, 2009, an application was made on behalf of the appellant to have the jury discharged on the following basis:-

1) The possibility that one or more members of the jury had been exposed to this coverage;

2) The likelihood that such a juror or jurors would make a close association between the appellant and the Anthony Buck referred to in the coverage; and

3) The prejudicial and damaging nature of the publicity was such that, in the circumstances, the defendant could not receive a fair trial.

82. Rather than accede to or reject the application at that point, the trial judge made an enquiry of the jury which of necessity was couched in general and neutral language. The question asked was “Ladies and Gentlemen, I have to ask you this question and I would appreciate a frank answer from each of you. Have any of you seen anything on television, or heard anything on radio programmes, or seen anything in newspapers that you feel might make your task as jurors more difficult”? The reply from each jury member was no. Whilst the trial judge noted that he did not see all of their faces simultaneously, nonetheless he could see that his enquiry was “greeted for the most part with utter incomprehension”. Being satisfied with this response he refused to discharge the jury but left open the possibility of doing so had they not reached a verdict at the end of that day.

83. It is submitted on behalf of the appellant that the trial judge was in error in refusing the application as made. The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460 and The People (Director of Public Prosecutions) v. Tobin [2001] 3 I.R. 69 were cited in support of the proposition that a trial in due course of law meant that the jury’s state of knowledge would be unaffected by any inadmissible evidence, in particular evidence demonstrating, or even suggesting the guilt of the accused. Whilst the publicity in question related to the appellant's brother and not to himself, nonetheless knowledge of such would associate Mr. Buck with a family, another member of which had committed murder. In such circumstances it is said that this would undoubtedly affect the impartiality of the jury.

84. The question at issue is, whether or not the fairness of the appellant’s trial was prejudicially affected by some member or members of the jury having seen, heard or read some or all of the publicity as mentioned. The test, which might be applied in looking at this point, is an objective one, and is “whether a reasonable person in the circumstances would have a reasonable apprehension that the (accused person) would not receive a fair trial of the issues” Bula Ltd & Ors v. Tara Mines Ltd & Ors (No. 6) [2000] 4 I.R. 412 at p. 439). This approach has been approved by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Anton Mulder [2007] 4 IR 796 and in The People (Director of Public Prosecutions) v. Albie Lonergan [2009] 4 IR 175.

85. This Court is perfectly satisfied that the course adopted by the trial judge was correct and that the inquiry so framed and asked, was a satisfactory means of obtaining information from the jury, without divulging any material which may have been prejudicial to their determination. Though phrased in general terms, it was nonetheless sufficiently specific to alert each juror to this publicity if any member had been exposed to it. In light of the answers obtained, and noting the judge’s assessment of the situation, it cannot be seriously suggested that the trial has been tainted in the manner submitted. Moreover there is no reason to believe that the jury did anything but faithfully follow the directions of the trial judge which included the usual warning of having to decide the case solely on the evidence which they heard. In these circumstances this ground of appeal cannot be sustained.

86. In conclusion leave to appeal will be refused.

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