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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Director of Public Prosecutions -v- Diver [2005] IESC 57 (29 July 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S57.html
Cite as: [2005] 3 IR 270, [2005] IESC 57
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Judgment Title: Director of Public Prosecutions -v- Diver Composition of Court: Denham J., Murray C.J., Hardiman J., Fennelly J., McCracken J. Judgment by: Hardiman J. Status of Judgment: Approved |
Judgments by | Result | Concurring | Dissenting |
Hardiman J. | Other (see notes) | Denham J., Murray C.J., Fennelly J., McCracken J. |
Notes on Memo: Allow Appeal quash conviction.
- 28 -
THE SUPREME COURT
Murray C.J., 161/02
Denham J.
Hardiman J.
Fennelly J.
McCracken J.
Between:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent
v.
JOHN DIVER
Appellant
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of July, 2005.
This is a difficult and most unusual case, which comes before us as an appeal pursuant to s.29 of the Courts of Justice Act, 1924.
The defendant was convicted of the murder of his wife, Geraldine Diver. She died on the 2nd December, 1996, in her car which was parked outside a builder’s yard in West Dublin. Because of the near ubiquity of video cameras at business premises, the movements of the car can be traced with great precision. This provides the unchallenged temporal framework of the case as follows.
At 9.26pm the deceased lady left the Coombe Hospital, where she worked, in her Renault Clio car. The hospital is nine minutes drive from the builder’s yard and also nine minutes drive from her home where, on the evening in question, the defendant was looking after the two children of the marriage. The yard is some three minutes drive and eleven minutes walk from the house where the defendant and his wife lived. At 9.40pm on the same evening the video camera at the builder’s yard showed the deceased lady’s car arriving at the entrance to the yard. At 9.55pm all the lights in the car went off. At 10.01pm a man, whom it was not possible to identify on the film, got out of the car by the rear door on the driver’s side. The body was later found in the car. She had been strangled.
The prosecution claimed that the defendant had ample motive for murdering his wife. He was somewhat older than her and the marriage had been in difficulty for some time. The wife had been conducting a very active affair with a much younger man whom she had pursued and with whom she apparently intended to live. She hoped that she would have a child by him.
The parties had allegedly agreed to separate, originally on the terms that the wife would leave the family home for the applicant, and that the children would choose who to stay with. She had apparently told her 13 year old daughter that she could stay with her father. A sum of £20,000 severance money which the defendant had recently secured (he actually banked it on the morning of the wife’s death) was to be shared between them and she would keep the car. However she changed her mind and instructed her solicitor to draft a settlement varying these terms significantly. According to this draft, the house was to be sold and the proceeds and the redundancy money divided. The deceased was to have custody of the children. There was some evidence that the applicant knew of these changed terms. All in all, the prosecution said, the deceased wife’s conduct had humiliated the defendant and threatened his relationship with his children and his financial stability.
The case was an unusual one in several ways. The defence was that the defendant was not involved in any way in the death of his wife: this is unusual because the great majority of murder defences do not deny physical involvement but claim that this involvement did not amount to a crime, or that it is manslaughter only. Secondly, there was only a brief “window” during which the crime must have been committed, between 9.40pm and 10.01pm on the night of the 2nd December, 1996. Thirdly, the applicant was minding his two young children on the night in question, a girl of thirteen and a boy of nine. The accounts given by these children of their father’s movements after nine o’clock on the evening in question are of considerable importance, as will be seen. They said he had been in the house all evening except when he left to buy food at a nearby take away. He returned with this, and realised he had forgotten noodles. He set out to get them but returned without them because, he said, it had started to rain. Both on deposition in the District Court (where they were called by the prosecution) and at the trial (where they were called by the defence) their timings were difficult to reconcile with the defendant having time to get to the builder’s yard and back within the constraints of the video timings especially since it would appear that he had to get the food as well. The girl’s account, in particular, seemed quite precise as she correlated his movements in and out of the house with a named television programme which she was watching. But the children were cross-examined along the lines that they had made statements to the gardaí giving times which were less inconsistent with the video timings. There was no evidence that the defendant had any vehicle or bicycle available to him on the relevant night.
Fourthly, and crucially, two teenage boys who lived near the defendant gave evidence that they saw the deceased on the relevant evening, driving her car at a T-junction at the end of the road where she lived. One of these boys saw a figure in the back of her car: the other identified the person in the back of the car as the defendant. But the boy put the time of this sighting at 9.25pm or a minute or two earlier: as noted above, the deceased had not yet left the hospital car park at that time.
Fifthly, a telephonist in the hospital who knew the defendant well for twenty years identified him by voice as a person who rang the hospital at about 7pm on the 2nd December, 1996 looking for the deceased.
There was no forensic evidence implicating the husband and some forensic support for the proposition that an unknown person had been in the car. But the identity of this person and the date of his or her being in the car could not be established.
Finally, significant issues arose as to certain question and answer interviews conducted by gardaí with the defendant.
The course of proceedings.
After a lengthy trial the defendant was convicted of murder on the 17th November, 2000. He received a mandatory life sentence. His application for leave to appeal was dismissed by the Court of Criminal Appeal on the 20th March, 2002. On the 10th April, 2002, the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance and granted him a certificate allowing him to appeal to this Court, pursuant to s.29 of the Courts of Justice Act, 1924. The certified question was as follows:
- “Whether having regard to the nature of the breaches of the custody regulations in this case, the learned trial judge correctly exercised his discretion in ruling in favour of admissibility of each of the statements made by the applicant while in detention under s.4 of the Criminal Justice Act, 1984.”
The defendant was arrested at home by gardaí at about 8.45am on the 8th December, 1996. This was a Sunday. He was subsequently detained at a garda station pursuant to s.4 of the Criminal Justice Act, 1984. The interviews took place at Lucan Garda Station. They were not audio visually recorded and, as will transpire, the recording in writing made by various gardaí was grossly deficient. This was deplored, both by the learned trial judge (Smith J.) and by the Court of Criminal Appeal. Smith J. found multiple breaches of the regulations for the treatment of persons in custody and in particular found a complete failure to record any part of an entire interview during which, it was conceded, the defendant had consistently denied involvement in the crime. This was characterised by him as “unacceptable and unsatisfactory”. The judgment of the Court of Criminal Appeal was delivered by Geoghegan J. who said:
- “There were a large number of breaches of the custody regulations… this Court deplores the breaches of those regulations and views with concern the number of the breaches in this case. The Court is quite satisfied that they are not material in the sense that they could lead to the ruling out of evidence or, perhaps, to put it another way, certainly the learned trial judge was acting well within his discretion in admitting the evidence not withstanding those breaches. That does not mean that the breaches were not deplorable and it is to be hoped that it does not happen again because those regulations are there to be kept and enforced. But we are quite satisfied that there was no injustice caused by the judge admitting the evidence and that it was well within his discretion to do so.”
In considering these breaches, it is intended to concentrate on the actual interviews which were held. There were other alleged breaches relating to the circumstances in which detention under s.4 was authorised, the information given as to the right to contact a solicitor and a lengthy delay in contacting the appellant’s brother, whom he asked to be notified. However it is not necessary, for reasons which will transpire below, to consider these matters.
According to the evidence and to the custody record, there were five separate interviews conducted by the gardaí on Sunday 8th December, 1996. Two of these, both conducted by Sergeant Healy and Garda Clancy, were entirely unrecorded. This was a manifest breach of Regulation 12(11)(a) of the Regulations and the only explanation, given by Sergeant Healy, was that in his view the taking of notes would have hindered the investigation. This problem affected only exculpatory remarks: everything consistent with guilt was recorded without hindering the investigation. It was conceded that in the course of this interview which lasted about an hour and a quarter the defendant consistently denied any involvement in his wife’s death. The failure to record this interview can only be regarded as a gross deliberate and conscious breach of regulations. In the case of the last interview, also unrecorded, garda evidence was that the defendant was extremely distressed and said nothing of significance.
In relation to the other three interviews, two were conducted by Detective Sergeant Hayes and Detective Garda Hanly and the other by Sergeant Healy and Garda Clancy. All of these persons are well known in the area of criminal investigation and all are competent, knowledgeable and experienced. There can be no question of inadvertence or ignorance as an explanation for their actions.
It has been possible to establish when these interviews took place, but only from external evidence. In the case of the first interview, which took place between 10.07am and 12.50am, the time the interview began and ended, and the timing of any breaks in it, were unrecorded in contravention of absolutely express provisions in Regulation 12(11)(a). Questions were omitted from the Memorandum in breach of Regulation 12(11)(b). It was conceded that the defendant was emotional and wept on occasions but not all of these were recorded. The signatures on the statements were neither dated nor timed as required by Regulation 12(11)(b)(iii). This omission, indeed, was made by these experienced members in the case of all three notes of interview. It may be noted that the second interview, at which repeated claims of innocence went unrecorded, commenced immediately after the conclusion of the first, according to the evidence at trial.
The second interview of which there was a record took place between 3.21 and 5.46pm. Again, the commencement time was not recorded, the signatures were neither dated nor timed and there were deficiencies in recording. A visit of a Dr. Hooper to take forensic samples was not timed either. Furthermore, it was desired to confront the accused with a Mrs. Henderson and the procedures in relation to this were so defective that the learned trial judge excluded the evidence of it.
The third recorded interview appears to have taken place between 7pm and 8.40pm, leading directly into the second unrecorded interview. Again, the deficiencies as to timing and signature noted above were manifest, questions and answers were not distinguished in the note and the timing of an identity parade, at which the defendant was not picked out, was not stated.
None of these interviews included an explicit confession to the crime. The defendant appeared to say that he could not remember his movements on the night in question, sometimes attributing this to drink. He is quoted as saying, when the evidence of other people was put to him by the gardaí, that “if that is what they say it must be true”. He says that for example in relation to the children and in relation to Paul Maher. It was put to him that, since he could not remember going out for chips, “Is it possible that you also met Geraldine and strangled her?”, to which he is alleged to have said “If I can’t remember being out for chips then I could have killed my wife and can’t remember it.”
Treatment of the interviews at the trial.
At the trial, objection was taken to the admission of the interviews in evidence. A considerable amount of evidence relative to them was heard. The learned trial judge’s ruling was a lengthy one, extending from page 1 – 28 of Book 13 of the transcript and, as noted above, it identified various breaches of the relevant regulations.
At page 28 the learned trial judge said:
- “Section 7.13 of the Criminal Justice Act, 1984 provides that failure on the part of the gardaí to observe regulation 1 can render that person liable to me for breach of procedures but shall not affect the lawfulness of the custody of the person or the admissibility of any statement made by him. I am satisfied on the evidence that while there have been breaches of the regulations in relation to the various interviews conducted by the gardaí that such breaches don’t affect the lawfulness of the custody of the defendant. I am also satisfied beyond reasonable doubt that the statements made by him during the course of the interviews were voluntary and are admissible in evidence. Just how much of the contents of the interviews are admissible is a matter for the jury.”
- “A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him”. (Emphasis added)
mistranscription of “Regulations”. There are other improbabilities in this important part of the judgment as recorded but they are such that it is less easy to guess at what may actually have been said. Importantly, however, the phrase “of itself” emphasised in the extract from the Statute given above, is wholly omitted in this passage of the ruling.
The omission of this phrase would be of great significance because there is authority for the proposition that “consideration must be given to the meaning and scope of the words ‘of itself’ in s.7(3) of the Criminal Justice Act, 1984”. See the judgment of the Court of Criminal Appeal in
DPP v. Vincent Connell [1995] 1 IR 244.
Accordingly, if the learned trial judge is accurately reported as stating that a failure to observe the regulations “shall not affect the lawfulness of the custody of the person or the admissibility of any statement made by him”, he would have misdirected himself in law in a very significant way. Having regard to the fact that the same passage contains some definite, and other possible, mistranscriptions, one must acknowledge the possibility that the vital phrase “of itself” was pronounced by the learned trial judge but omitted. One must also consider, however, that the transcript has been adopted as the learned trial judge’s report.
The decided cases, notably DPP v. Spratt [1995] 1 IR 585 all emphasise that, to quote the last mentioned judgment, “the phrase ‘of itself’ is obviously an important one in the construction in the statutory provisions…”. The cases suggest two senses which the phrase may be construed. The first, exemplified in Spratt is that the facts should be analysed to see if the breach of the regulations in question has led to a prejudice to the accused. The second, exemplified in the judgment of Keane C.J. in DPP v. McFadden [2003] 2 IR 113 suggests that the facts should be analysed with a view to seeing whether the breach of regulations was “of so trivial and inconsequential a nature as not to afford a sufficient ground for treating the detention of the person as unlawful or statements made by him [as] inadmissible”.
In that case, a failure to give a reason for searching a wallet of an accused person held to be of a fundamental nature which could not “… be considered as of such little importance as to justify a departure from the regulations”.
I am of the opinion that the breaches of regulations in this case, and in particular the total failure to record exculpatory statements and the failure to make any proper attempt to record the entire context of ambiguous statements which are nonetheless consistent with guilt, cannot be regarded as trivial or inconsequential. They are, on the contrary, grave, obvious and deliberate. The explanation tendered for failure to record exculpatory remarks is incapable of rational belief. It is recorded at Volume 9 page 47ff of the transcript. The experienced detective says “I didn’t think it prudent at that particular time to take notes. I thought it might have even hindered the investigation… I thought he would have been more at ease talking and he didn’t.” Later, the detective said “… I didn’t decide never to take a note. As it turned out I never did. He was somewhat upset and crying and he said he was upset and I thought that maybe it would be more prudent at that particular point in time not to take notes… I thought that his demeanour and all that at the time as it were, not taking any notes for a certain amount of time. It crept up on me… the interview finished faster than I had anticipated and I didn’t take notes.” No explanation was offered of the failure to make notes after the relevant interview, which the Regulations specifically envisage.
Written notes of what an accused says in custody provides a more reliable record of evidence to be tendered at a criminal trial than unaided recollection. This is not just in aid of the defence but also in aid of the prosecution who are then in a position to tender more reliable evidence to the jury. More importantly, it is of benefit for the conduct of the trial as a whole reducing areas of controversy and providing clearer evidence for the trial judge and the jury of what an accused has said to the Gardaí. It should also reduce the time spent by trial judges in resolving issues, in the absence of the jury, concerning breaches of the relevant Regulations. I wish to reiterate that the Gardaí are not entitled to exercise total editorial control in recording what has been said. Nor are they entitled to cherry-pick what is to be recorded. In this case, the omission of a series of denials is utterly unacceptable. It is not that the Gardaí are required, when they are relying on written notes of an interview with an accused, to record what an interviewee has said verbatim. Regulation 12 requires that the record of the interview be “as complete as practicable”. It must be a fair record of what was said and it is important to provide sufficient context to allow for an evaluation of what is said, especially where, as here, the accused was allegedly making ambiguous or inconclusive verbal statements, and manifesting symptoms of distress. Audio visual recording is, of course, infinitely superior.
The garda power to detain persons and question them, with no-one else present, is a statutory power of huge significance. Its exercise gives rise to the commitment of enormous amounts of court time and has given rise in the past to miscarriages of justice. Where there has been a breach of the regulations due to a failure to record “so far as practicable” an interview with an accused the task of the trial judge is to determine, whether in all the circumstances, the effect of the failure to observe the regulation has prejudiced the fairness of the trial of the accused other than by the fact of a breach of the regulations in themselves. The issue is not so much whether or not the breach of the regulations was of a “trivial and inconsequential nature”, although that is a factor to be taken into account, but whether the fairness of the trial of the accused would be prejudiced by the admission of statements made by him or her in respect of which the regulations were not followed. On a properly conducted trial or retrial, it would be for the trial judge to determine the issue of admissibility on the criteria set out in this judgment. I wish to reiterate that the gardaí are not entitled to exercise editorial control over what is said. Nor are they entitled to cherry pick what is to be recorded. It is utterly unacceptable to omit denials. It is important to provide sufficient context to allow for an evaluation of what is said especially where, as here, the defendant was allegedly making ambiguous or inconclusive verbal statements, and manifesting symptoms of distress. All this is trite, because it has been said so often and it is said so often because gardaí have regularly avoided audio visual recording, made selective notes, and breached the clear and simple regulations for the treatment of persons in custody, apparently believing that such breaches will attract nothing worse than a judicial rebuke.
The Director of Public Prosecutions, in his submissions in the present case, admitted the breaches but said:
- “Trial judges may be properly critical of breaches of the regulations but these must be dealt with in the context of each particular case … in the instant case the learned trial judge drew public attention to the breaches which he identified. This was the correct approach to adopt… it is submitted that the proper deterrent envisaged by the Criminal Justice Act, 1984, to deal with breaches of the regulations is to be found in s.7(4)” [of the Criminal Justice Act, 1984].
Between these factors, and the apparent omission of the learned trial judge to consider the existence in s.7(3) of the important phrase “of itself”, I am of the view that the points raised by the appellant in relation to the breaches of the custody regulations “might be decided” in his favour to use the language of s.3(1) of the Criminal Procedure Act, 1993. If there were no evidence in the case other than the alleged admissions, resolution of these issues in that way might lead to the quashing of the conviction. In those circumstances, however, I would also have considered exercising the discretion conferred by s.3(1)(a) of the Criminal Procedure Act, 1993, to uphold the conviction not withstanding that “a point raised in the appeal might be decided in favour of the appellant”. This topic is further discussed below. But there is other evidence, and some of it of a strikingly precise and objective character. It is to this evidence that I now turn.
The other evidence.
The evidence in the case other than the product of the interviews with the gardaí has been summarised above. If one accepts that the defendant was in the back seat of the deceased’s Renault Clio motor car at a time very shortly before that car was parked outside the builder’s yard, then there is in my view a compelling case, amounting almost to an irresistible inference, that it was he who killed her. The learned trial judge was correct to describe Paul Maher, the teenaged neighbour who made this identification, as the most important witness in the case. There was no reason whatever to doubt his truthfulness, and the accuracy of his observation appears to have been accepted by the jury, whose province it was to accept or reject it.
It is true that Mr. Maher cannot have been precisely correct in his timing of the sighting of the Renault Clio. He fixed the time by saying that he was standing outside his house talking to his friend and had been called in by his father. As he came in, a minute or two after seeing the car, he heard music which he associated with the end of the main evening news on RTE One, and this led him to fix the time as he did. This timing could not be correct, because the deceased had not left the hospital car park until 9.26pm and the hospital was estimated by the prosecution to be a nine minute drive from her house. The 9 o’clock news ended that evening at 9.26.55. All the information about the timing of the hospital video, the actual time the news ended and the times and distances involved was before the jury. Every conceivable interpretation favourable to the defendant was canvassed but obviously failed to shake the jury’s faith in Mr. Maher’s evidence, even if it were not precisely accurate in point of time. It will be observed that, on the undisputed evidence as to times and distances, it would have been just possible for the deceased to drive from the hospital to her home or a point near it, and from there to the builder’s yard between 9.26pm and 9.40pm. To put that another way, if a person left the Coombe Hospital at 9.26pm and proceeded, via the defendant’s house, to the builder’s yard, one would expect him or her to arrive there at about 9.40pm.
There can be no doubt, on the basis of recorded times, the observations of certain motorists who passed the builder’s yard, and the subsequent discovery of the body in the car at the yard, that the deceased was killed in the car between 9.40pm and 9.55pm, or possibly a few minutes later. There is of course no direct evidence as to what could have induced the deceased to drive to the builder’s yard. The jury were, however, entitled to accept the evidence of the telephonist who had known the accused for a long time about a phone call to the deceased earlier in the evening. Equally, one cannot know precisely why the deceased was prepared to drive away with a person, whether the defendant or not, in the back seat of her car. But young Mr. Maher’s evidence is consistent with the evidence of a lorry driver from Northern Ireland, Mr. Stone, who saw a woman in the driver’s seat of a car parked outside the builder’s yard with her arms down by her sides. He saw two hands “coming from behind her” and covering her breasts. It is also consistent with the video evidence of a man leaving the car from the rear seat behind the driver at 10.01pm.
The evidence of the children.
The evidence of the children was ultimately relied upon by the defence as being inconsistent with the defendant’s being in a car parked outside the builder’s yard between 9.40pm and 10.01pm. It is noteworthy that both sides treated this evidence with caution. The prosecution had information obtained from the children by the gardaí and the Director had them each examined on deposition in the District Court. They were not however called at the trial as prosecution witnesses. The defence indicated at the trial that they would not be calling the children but subsequently changed their minds. It must be recalled that the children were thirteen and nine years old at the time of the crime.
The following appear to me to be the relevant features of the childrens evidence.
In direct evidence, the daughter said that her father left the house to get food at about five or ten past nine, while she was watching a programme called “Picket Fences”. He was gone about twenty minutes and shortly after his return left again for three or four minutes.
The boy thought that he left at about 9.20pm for about ten minutes and then very shortly afterwards went out again for about two minutes, returning at twenty-five to ten. Both were cross-examined by reference to previous statements made to the gardaí and it is fair to summarise their effect, as stated by the prosecution, as moving his time of arrival back to the house on the second occasion to about 9.45 – 9.55pm. Their statements might also be regarded as tending to undermine the childrens accuracy and therefore credibility on matters of timing. But the statements themselves were never produced in evidence.
Before the jury retired, they asked for the original statement of Paul Maher. On being told that they could not have it, they wondered if the same applied to the original statements of the children. They were told that it did because:
- “They are not evidence. They are only statements to the gardaí – I mean it is just the times that were put to them in relation, one was an interview not a statement. Laura made one statement in July and Simon, the July, is not entirely correct to say garda statement. You can only decide the case on the sworn evidence in the witness box. It is the best evidence there is”.
- “The next matter relates to statements made by witnesses to the gardaí. I have already told you these statements are not evidence. The evidence is the old evidence given by the witnesses, the witnesses put, but the purpose of presenting the contents of the statements of witnesses is merely to attack their credibility or reliability. If it is put to them that they said something else, to deny it or answer ‘yes’ on some occasions and witnesses answer ‘no’ on other occasions and they deny they said it in any statements to the gardaí are not evidence and the contents of the statements as put to the witnesses by way of cross-examination, that is not evidence.”
Laura Diver, then aged 16, gave her direct evidence to the effect summarised above. The bulk of her cross-examination consisted of a challenge to her account of the times at which her father had gone out and returned. A somewhat varying version was put to her by prosecution counsel, who stated that he was taking it from a statement she had given to a Garda Mary Burbage. The witness did not concede the accuracy of this statement. She said “It was obviously taken down wrong”. About a particular phrase “it seemed for ages that he was gone…”, she said that this remark related to his first departure from the house, and not to the second. She said “I said that, but not in that order”. She reiterated several times that Garda Burbage had taken down what she had said incorrectly: “Obviously she did”.
Simon Diver, who was thirteen years old at the time of the trial also gave direct evidence to the effect summarised above. He was asked about a conversation with an Inspector Callanan and it was put to him that he told the Inspector that his father had been out for about half an hour on his second exit. The boy said “No I didn’t say that, I said he went out for two minutes, two to three minutes”. Again under very considerable pressure in cross-examination he said “But I didn’t say that”. He also denied that he had asked his father “Where were you, you were gone a long time?”. It was put to him that he had told the Inspector that he had looked at his watch at 9.45pm and his father still wasn’t back and he denied this. Prosecuting counsel then put to him “I just have to say to you, that’s what the Inspector recorded”.
Equally, he denied saying that his father had got in at about 9.55pm and he denied that strenuously and coherently, under great pressure.
It was then put to him, at some length and with a number of explanations, that what he had said in 1996 was right and what he was saying in the witness box was wrong, but he denied this too. His alleged statement was not put to him, nor accepted by him, nor otherwise proved.
Both Laura and Simon came across from the transcript as articulate, intelligent and independent young people. There was no impression that they were merely parroting what someone else had told them to say.
After the children had given evidence, prosecuting counsel asked to be permitted to call Garda Mary Burbage, to say that she had accurately taken down what Laura Diver had said. Counsel said:
- “Until the jury hear that it was taken down correctly [they] don’t have an opportunity of comparing Laura’s evidence with that of the guard who took it down… and they don’t have any material to find an inconsistency signed by her at that time and what was said by her in the box. I haven’t put the statement into evidence yet, My Lord, because I haven’t had Garda Burbage’s evidence on it, My Lord.”
This application, however, was refused on the ground that “only one or two small sections of this statement… was put to Ms. Laura Diver in the witness box and she disagreed with the contents of some of the statements as recorded. It doesn’t seem to be necessary in the circumstances, having regard to the fact that only one small section of the statement has been disputed. It doesn’t seem to be necessary to call Garda Burbage to prove the statement was taken and that it was taken correctly”.
It appears to me that, in the absence of any contradiction of the evidence of Laura Diver that the garda had incorrectly recorded her statement, and in the absence of any proof of the statement of Simon Diver, it was not open to the jury to pay any attention to the contents of the statements of these children (as gleaned by them exclusively from prosecuting counsels questions) for any purpose, including that of assessing the childrens credibility. The law governing this area is closely analogous to that relating to the cross-examination of hostile witnesses. If the children had been called for the prosecution it would have been necessary to have obtained leave to treat them as hostile for the purpose of confronting them with their statements. Since in the end they were called as defence witnesses it was not necessary to treat them as hostile, but the necessity to prove the statement remained. The leading case on the putting of an alleged prior statement to a witness in cross-examination is the judgment of the Court of Criminal Appeal (delivered by Walsh J.) in A.G. v. Taylor [1974] IR 97, at 99 – 100:
- “… the proper procedure for the prosecution was to have put to the witness that she had on another occasion made a statement which differed materially from or contradicted the one she was making in the witness box. If she were to deny that, then the proper procedure would have been to have her stand down from the box and to prove in fact that she did in fact make a statement by putting into the box the person who took the statement, proving it in the ordinary way without revealing the contents of the statement at that stage. The earlier witness should then have been put back in the box and the statement put to her for identification, and then her attention should have been directed to the passage in which the alleged contradiction or material variation appears. If she had agreed that there was such a contradiction or material variation, that should have been the end of the matter as far as the question of impugning her credibility was concerned because there would then have been before the jury an admission from the witness to the effect that she had made contrary statements on the same matter. The statement might then have been put in evidence, though that would not be strictly necessary at that stage when the admission had been made. If she had persisted in denying the contradiction, then the statement, having already been proved, would have gone in as evidence of the fact that the witness had made a contrary statement.
It must at all times be made clear to the jury that what the witness said in the written statement is not evidence of the fact referred to but is only evidence on the question of whether or not she has something else – it is evidence going only to her credibility”. (Emphasis added)
There is no difference in the mode of proof of a prior statement, whether the witness is hostile or merely being cross-examined. And proof of the contents of the statement is necessary (unless admitted) before it becomes “evidence of the fact that the witness had made a contrary statement”.
It seems to me that the charge of the learned trial judge assumed something which is not in fact so, that the statements with which it was sought to impugn the childrens evidence had themselves been proved as to their execution and accuracy. Since the content of the girl’s and the very fact of the boy’s had not been proved, they were not available for the jury to consider for any purpose, including a purpose limited to the assessment of credibility. In the defence submissions on the issue, it had been said that “… The prosecution are bound by the answer they have got in relation to statements in relation to questions they have asked in relation to previous statements.” I believe that this was so, in the absence of proof of these alleged statements, and their contents.
It follows from the foregoing that leading counsel for the prosecution, Mr. Edward Comyn S.C. was entirely justified in the application which he made at the end of the childrens evidence, to be permitted to call the guard who had taken Laura’s statement. This was necessary because, as counsel said, at least until that evidence was before them there was no basis for a finding that what the girl had said in the witness box was inconsistent with a previous account. I do not quite understand the basis on which the application was refused.
The refusal of the application, however, put the prosecution in an unfortunate position. It is well established that it is not proper for counsel to cross-examine out of a document by way of suggesting that the contents of that document, and not the evidence of the witness being cross-examined, represent the true position unless he is in a position to prove the document and its contents. As it happens, the law on this topic has been reviewed by Fennelly J. in Cooper-Flynn v. Radio Telefís Éireann and Anor. [2004] 2 IR 72. This was a civil libel case in which a letter had been put the plaintiff whose contents the prosecution were in the end unable to approve. In the course of his judgment, however, Fennelly J. reviewed a number of English Criminal cases. In R. v. Gillespie [1967] 51 Cr. App. Rep. 172 Winn L.J. said:
- “It is elementary… that it is not competent to prove a fact against an accused person by producing a document in which that fact is recorded without calling the maker of the document to say that he wrote in the document represented a true statement of fact.”
- “As it seems to this Court, if a document is produced to a witness and the witness is asked: ‘Do you see what that document purports to record?’ the witness may say: ‘I see it, I accept it as true’, in which the contents of the document become evidence against him: or he may say ‘I see what is there written, I do not accept that is true’, whereupon that which is purported to be recorded in the document is not evidence against that person who has rejected the contents; it becomes what one might call non-evidence, the document itself being nothing but hearsay.”
In the later case of R. v. John Morris Cross [1990] 91 Cr. App. Rep. 115, the previous case was affirmed and the result of a denial by the witness of the truth of the facts recorded in a document even more clearly stated. In that case a document which is the statement of a person who had not given evidence was put to the accused and he was cross-examined out of it. This was held to be an improper proceeding, the Court of Criminal Appeal holding, per McCowan L.J.:
- “The right course would have been for the judge to send the jury out and consider the objection calmly. It would then have been apparent to him that the right way to handle the matter was for prosecuting counsel to allow the appellant time to read the document and then ask him if the contents were true. That this is the right way to handle the matter is clearly shown by the case of Gillespie… if the matter had been handled in that way, and the appellant had said that the contents were true, he could then have been cross-examined about those contents. If, on the other hand, he had said they were not true, that would have been the end of the matter. As it was, prosecuting counsel was allowed to go on cross-examining about the document although the appellant had never agreed that its contents were true.”
Decision.
As appears from the foregoing, there are grave issues arising on this appeal. On the one hand there is the evidence of Paul Maher, which if accepted by the jury is almost coercively suggestive of the guilt of the accused. On the other hand, the evidence of the children as to their father’s movements on the night of the crime was inconsistent with his being the person who left the car at the builder’s yard at 10.01pm. Of course, they might be inaccurate in their timing while correct in the general thrust of their evidence: this is the basis on which the prosecution relied on the evidence of Paul Maher. But the jury were permitted to consider the accuracy and credibility of the childrens evidence by reference to the alleged content of statements which had not been proved and which should not have been considered by them for any purpose. Equally, I do not think, based on the transcript, that the correct approach was taken to the issue of the admissibility of the defendant’s alleged statements in questions and answer sessions with the gardaí, because the learned trial judge would appear to have misdirected himself on an important statutory provision.
Section 3(1)(a)
This provision of the Criminal Procedure Act, 1993, contains one of the powers of the Court of Criminal Appeal on the hearing of an appeal against conviction. The Court may:
- “Affirm the conviction (and may do so, not withstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred)…”.
I have given very serious consideration to the question of whether, not withstanding the wrongful admission of the interviews with the gardaí, and the possibility that the childrens evidence was undermined by the improper consideration of counsel’s version of the unproved content of alleged statements, this is nevertheless an appropriate case for the exercise of the power contained in s.3(1)(a), what used to be called “the proviso” in the neighbouring jurisdiction. This issue involves asking oneself whether the evidence of Mr. Maher, in and of itself, is of sufficient strength and cogency that one can be sure that the same result would have followed if it had stood alone, unsupported by the contents of the interviews with the gardaí, and without the childrens evidence on times being queried as to their credibility and reliability on the basis of counsel’s version of alleged earlier accounts.
Mr. Maher’s evidence is clear in itself and derives support from the location of his observation – very near the deceased’s house – and the fact that a second person was clearly in the back seat of the car at the time of Mr. Stone’s later observations. The principle difficulty with the evidence is that Mr. Maher was clearly wrong in relation to time. This error is of course totally understandable – he had no idea that he would be asked to state his recollections in a murder trial – and is not very great in itself. But the importance of even a small difference in point of time is heightened by the very precise timings provided for certain aspects of the case by the video evidence. It is also, if less definitely, heightened by the evidence of the children. On certain views, these timings tend to undermine Mr. Maher’s identification of the defendant as the person in the back of the car, or require one to make certain assumptions as to the nature of his error in timing in order to make room for the belief that the identification is accurate.
If the childrens direct evidence were accepted at face value, it would clearly be inconsistent with the defendants being the man in the car at the builder’s yard. Realistically, this tends to undermine Mr. Maher’s identification because it is for practical purposes certain that there was only man in the back seat of the car on the evening in question.
The only basis on which the childrens evidence was sought to be undermined was that of the alleged content of the previous alleged statements, as summarised by counsel. These were unproved, but the jury were invited to consider them “… merely to attack their credibility or reliability…”, in the words of the learned trial judge. But this cannot have been proper because, in the words of prosecuting counsel, in the course of his application to call Garda Mary Burbage “… they [the jury] don’t have any material to find an inconsistency [between what was] signed by her [Laura] at that time, and what was said by her in the box…” in the absence of that evidence.
Furthermore, the two types of document which the jury specifically requested before they began considering their verdict – the statement of Paul Maher and the original statements of the children – suggests that they were focussed on this very aspect of the case: was the childrens evidence, which tended to undermine that of Mr. Maher, itself dubious because of its inconsistency with the previous account allegedly given by them?
Having regard to the narrowness of the issues in the case, especially on the question of time, and the specific requests of the jury, I cannot feel sure that the same result would have followed even if the prosecution’s redactions of the content of alleged previous statements by the children had not been available for the jury’s consideration.
In those circumstances I would allow the appeal and quash the conviction of the defendant and direct a retrial.
John Diver(1)