THE COURT OF APPEAL
Birmingham J.
Edwards J.
Hedigan J.Record No: 150/2014
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
JUDGMENT of the Court delivered 24th of April, 2018 by Mr. Justice Edwards.
Introduction
1. The appellant appeared before the Central Criminal Court on the 28th of April 2014 and pleaded not guilty to a single count of murder contrary to common law; the particulars of the offence being that the appellant did, on the 17th day of October, 2012, in the County of Tipperary murder one Shane Rossiter.
2. The matter proceeded to trial and on the 5th of June 2014 an eleven person jury, by a majority of ten to one, found the appellant guilty of the murder of Shane Rossiter. The appellant was sentenced on the same date to life imprisonment backdated to the 11th of December 2012.
3. The appellant now appeals against his conviction.
Evidence relevant to this appeal
4. The deceased, Mr. Shane Rossiter, was born on the 13th of February 1983 and was 29 when he was killed. On the 17th of October 2012 there was a house party at 3 Church Lane, Golden, Co. Tipperary involving a small group of people including the deceased. During the house party there was a degree of illicit drug use. The individuals present included a Mr. Paul McCarthy, a Ms. Siobhan Murphy, a Mr. Andrew Heaphy and the deceased man, Mr Shane Rossiter.
5. In the early hours of the morning of the 17th of October, the deceased man and Mr. Paul McCarthy went out the front door of the premises in the belief that the appellant would be there to deliver cannabis to them. Mr. McCarthy told the jury that “I walked out of the house, there was a car parked there, and I seen a gun and I ran.” Pressed on what exactly he saw, he said: “A car parked there, two fellows sitting in the car and a gun came out the window and I ran” He said the car was “just a footpath away” from the house. He couldn’t say what colour the car was, other than to say it was dark. He couldn’t say if the gun had come out through the driver’s window or the passenger’s window. However it had come out through a front window. He just saw the barrel of the gun. He had run, believing he was a target, and having crossed a field ended up in a graveyard. He heard one gunshot, and on hearing it he rang the emergency services.
6. The jury heard evidence that the deceased was in fact shot twice with a shotgun. Gardaí arrived on the scene and commenced an investigation. The following day, Thursday the 18th of October 2012, a burned out Audi A4 with the registration number 01-D-12430 was discovered at a bog in the Nire Valley, County Waterford. This was suspected to have been the car used in the shooting.
7. The appellant was identified as a person of interest at an early stage of the investigation. The appellant’s partner was Pamela Cahill, who was known to drive an Audi A4. The jury heard that an Audi A4, driven by a man believed to be the appellant, was captured on CCTV at a Tesco petrol station at approximately 6.30pm on the 16th of October 2012, which was about 12 hours before the murder. The jury was shown the relevant CCTV footage.
8. On the 18th of October 2012 the appellant attended Clonmel Garda station voluntarily along with his solicitor and made a statement. On the 11th of December 2012 the appellant was arrested in connection with the murder of Mr. Shane Rossiter and was detained from the 11th of December to the 15th of December 2012 at Clonmel Garda Station, where he was interviewed a number of times. In the course of being interviewed he confessed to having killed the deceased.
9. The jury also heard there was a history of violence between the appellant and the deceased, the appellant having stabbed the deceased seven years before. Upon his recent return to this jurisdiction after several years in Australia, the appellant became fearful that the deceased would exact retribution. He said in one his interviews that he believed that it was, for him, a case of “kill or be killed.”
Grounds of Appeal
10. There are 17 Grounds of Appeal listed in the Notice of Appeal. They are as follows:
(i) The trial judge erred in allowing the prosecution to adduce evidence about the violent background between the appellant and the deceased.
(ii) The trial judge erred in allowing witness Pamela Cahill to refresh her memory in respect of the registration details of a motor vehicle.
(iii) The trial judge erred in ruling that the memorandum of an interview with the appellant on the 18th October 2012 was admissible.
(iv) The trial judge erred in ruling that the memoranda of interviews with the appellant during his detention from the 11th to the 15th December 2012 were admissible.
(v) The trial judge erred in allowing the prosecution to adduce as an item of real evidence the vehicle registration document of a motor vehicle bearing registration 01-D-12430.
(vi) The trial judge erred in allowing the prosecution to adduce as an item of real evidence data extracted from a mobile telephone device and SIM card alleged to have belonged to the deceased.
(vii) The trial judge erred in ruling that independent evidence which supported the reliability of assertions made by the appellant in interview could amount to corroboration of his confession.
(viii) The trial judge erred in failing to properly explain corroboration to the jury, it being a term of art, and further failing to distinguish corroboration as regards the reliability of the content of the memoranda of interview versus corroboration as regards the actual commission of the offences. The trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration.
(ix) The trial judge erred in refusing to discharge the jury in circumstances where the jury was directed with unnecessary force and repetition that suggestions made by counsel did not amount to evidence.
(x) The trial judge erred in directing the jury that the rights of society are balanced by the rights of an accused person without specifying that, if there is a conflict, the latter should take precedence.
(xi) The trial judge erred in directing the jury that, where evidence was not in dispute, it had effectively been proved.
(xii) The trial judge erred in implicitly indicating to the jury that the evidence of witnesses tendered by the prosecution carried less weight than that of witnesses directly-examined by the prosecution.
(xiii) The trial judge erred in failing expressly to direct the jury that the only evidence connecting the appellant to the alleged offence was his purported confession.
(xiv) The trial judge erred in failing to expressly to direct the jury that one of the main justifications for ensuring compliance with the Garda Custody Regulations was to prevent impropriety on the part of the Gardaí.
(xv) The trial judge erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.
(xvi) The trial judge erred in refusing to direct the jury that having a reasonable doubt about the propriety of the Garda conduct would demand an acquittal.
(xvii) The trial judge erred in allowing the jury, during the course of deliberating, to view CCTV footage in open Court in the presence of the Appellant.
Ground (i) – Evidence of Past Violence between the Victim and the Appellant
11. There was evidence in relation to a stabbing incident in 2005 in which the appellant stabbed the deceased repeatedly, almost killing him. This was mentioned by the appellant during the course of interviews with Gardaí. According to the accused’s own statements (not read to the jury), the deceased had raised the incident in conversations with him during the period leading up to the murder. In his confession, read to the jury, he acknowledged that he had begun to worry that the deceased would seek revenge:
As you know, there is a lot of serious history between the two of us. I'll start about seven years ago, I've told you about those incidents over the past couple of days, it involved a stabbing and it escalated from there. It really took a turn for the worst this year, as I was aware that I was trying to be set up again. I was in fear for me kids, myself, I had no other choice, I was backed into a corner and I reacted like any other person would have. I know that if I didn't do what I had to do, I probably wouldn't be sitting here today. I received a phone call in the early hours of the morning asking would I drop Shane Rossiter a bit of hash, that he was on his own with his girlfriend and would I drop out the bit of hash and that I wasn't going into the house, that there was only the two of us there. I knew it didn't sound right, but I went out there anyway. Once I was out there a man I didn't know came out in front of Shane Rossiter. I knew straightaway there was something gammy as he told me he was on his own there. They came out walking towards me zipping up their jackets. One fellow got close to the car and asked me what the crack was. Then I let a shot at Shane Rossiter. I was fully aware that he had a handgun and I expected that there was going to be shots exchanged and I wasn't waiting to see. The other fellow that was with him ran off. I walked down through the car park just to make sure he wasn't the one that had the gun. I couldn't see him anywhere, so I walked back to the house, shot him again. It was I left then, I knew it was a case of kill or be killed. I left there then, and got rid of the car. I got into another car I had parked up the mountain. I went down to a mate's down in Kerry.
12. There was also evidence, given by Ms Rachel Keating, that the appellant had been invited over to deliver a quantity of cannabis:
Q. Now, when Shane Rossiter was with you in the -- in Cody's bedroom, you've told the jury about that, did you at any time see him use a mobile phone?
A. Yes.
Q. And can you tell the jury about that?
A. He was speaking -- as I can remember he rang Mossy and he rang him to look for a bag of weed.
Q. Now, how did you know that he was ringing Mossy to look for a bag of weed?
A. Because he had said that they were -- like Siobhan and Paul and everyone they had all decided they were going to get a bag of weed off him or somewhere and Shane said he could get it off Mossy and so he rang Mossy to look for it.
13. In seeking to have the evidence of stabbing and illicit drug dealing admitted, the prosecution relied primarily on the case of The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669, submitting that the evidence was both relevant and necessary to the prosecution case
14. In relation to the stabbing the trial judge ruled as follows:
“The fact that the evidence tends to show the commission of other crimes does not render it inadmissible. The test to be applied is that of relevancy and necessity. And I hold, not least because of the statement of the accused man himself, that this all started with the stabbing incident in 2005, that that is background evidence which is admissible in the course of the trial to show what again was the genesis of all of these unhappy events. However, the - I would limit the evidence to the fact, if the evidence be there, I would limit it to the fact of the stabbing, and that it was a significant stabbing. And by that, I mean that it was such as to require hospitalisation. I think it would be trespassing into the area of undue prejudice were the evidence to go beyond that. Such as evidence referred by Mr Sammon before lunch, that the deceased nearly died. That is not, it seems to me, necessary for the complete picture, for the jury to have the complete picture, and does trespass into that area of being more prejudicial than probative.
15. Regarding the evidence of drug dealing she ruled:
JUDGE: I think in the context of explaining the sequence of events, that -that it is material and relevant that the jury know and they've already heard quite an amount about drugs, in any event, that -- and even though it suggests misconduct, that it is important for them to understand that there was a conversation, that there was an invitation to Mr Power to come to visit Mr Rossiter in Golden. And that they shouldn't be speculating about what that was about, and we can get rid of any potential speculation or questioning by the jury, by simply telling them what it was about.
16. The appellant submits that neither piece of evidence was necessary to the prosecution case and should therefore not have been admitted. He further submits that it was imperative that a carefully worded direction be given as provided for in The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669. Regarding the stabbing, the respondent submits that the trial Judge engaged in a sufficient balancing exercise, only admitting that which was necessary and probative and excluding unduly prejudicial evidence. The respondent submits that the evidence in relation to drugs was of significant probative value in explaining to the jury the reason for the appellant’s presence at the scene of the crime. Without such evidence the jury may have ventured into the realm of speculation. While the respondent concedes that the trial judge gave no special direction, they submit firstly that there was no need for one as there was no evidence that the appellant was a drug dealer and secondly, relying on The People (Director of Public Prosecutions) v Cronin (No. 2) [2006] IESC 9, as no such point was raised in requisitions it may not be raised on appeal.
Decision
17. In The People (Director of Public Prosecutions) v McNeill [2011] 2 IR 669 the former Court of Criminal Appeal had certified the following question of law for determination by the Supreme Court pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s. 22 of the Criminal Justice Act 2006:
“Is evidence of connected background history, which might disclose matters not laid down in the indictment and possibly prejudicial to the accused but which is essential or helpful to the jury understanding the charges actually laid in the indictment, admissible in a criminal prosecution?”
18. The Supreme Court held (by a majority of four to one) that background evidence, which might disclose matters not laid down in the indictment but which might have been in the book of evidence and which would be prejudicial to an accused, was admissible if it was so relevant to facts to be proved by the prosecution or defence and to be determined by the jury that it was necessary to render comprehensible such facts. It was admissible if, without such evidence, the facts would be incomplete or incomprehensible for a jury.
19. Following The People (Attorney General) v Kirwan [1943] I.R. 279 the Supreme Court further held that evidence that an accused had committed offences, other than that or those charged in the indictment preferred against him, was never admissible for the purpose of leading the jury to hold that an accused was likely, by reason of his criminal conduct or character, to have committed the crime in respect of which he was being tried. However, the mere fact that evidence adduced tended to show the commission of other crimes did not render it inadmissible if it was relevant to some issue of fact which the jury was called upon to determine. Moreover, and in that regard, O’Donnell J opined that it would be “a mistake to seek to determine the admissibility of evidence only on the basis that it is, or is not, included in an identified sub-category sanctified by precedent.” The correct test to be applied by the court in considering whether background evidence should be admitted was whether the evidence was relevant and necessary. The test was not merely whether it would be helpful to the prosecution to admit the evidence.
20. In her judgment, Denham C.J. indicated obiter dictum that, while a warning was a matter for the discretion of the trial judge, in general it would be wise for a trial judge to give the jury a warning as to the nature of background evidence, as to why it was being admitted and concerning the purposes for which it might and might not be used.
21. Dealing first with the admission of the evidence of the previous stabbing, the trial judge considered that this was both relevant and necessary to show what the judge described as “the genesis of all these unhappy events”. We completely agree. The accused had told the Gardaí that he believed it was a case of “kill or be killed”. It was necessary for the jury to appreciate the extent of the bad blood and animus between the appellant and deceased, to properly assess the actions and possible motives of the appellant, and also for that matter of the deceased . The trial judge adopted a very balanced and measured approach in only admitting evidence of the fact of the stabbing, and that it was serious in the sense of requiring hospitalisation, but no more than that. We are fully satisfied that his ruling in that regard was correct in principle and as a matter of law.
22. With respect to the admission of the evidence of the appellant’s participation in supplying cannabis we cannot see how the admission of that evidence could have been avoided in the circumstances of this case. It was absolutely central to how the appellant knew of the whereabouts of the deceased on the evening in question, it was relevant to opportunity, it was relevant to the relationship between the parties, to the alleged animus between the appellant and the deceased, and to a range of other issues. The trial judge felt it was necessary that the jury should have this evidence to avoid them speculating, and again we agree with him in that regard.
23. We also consider that the respondent makes the valid point that no requisition was raised concerning the fact that the trial judge did not give a warning to the jury along the lines recommended by Denham J. The respondent contends that such a warning was unnecessary in the circumstances of this case where the background evidence was so inextricably bound up with, and clearly relevant to, the central event such that it would have been obvious to the jury why they were receiving it, and the use to which it could be put. We are prepared to attribute weight to this view in circumstances where it did not occur to anybody on the legal teams that had listened to the judge’s charge that a warning was necessary and where nobody raised a requisition requesting a warning.
24. In the circumstances we are not prepared to uphold Ground of Appeal No. (i).
Grounds (ii) and (v) – Allowing Pamela Cahill to Refresh her Memory and Admitting the Registration Document of Motor Vehicle 01-D-12430
25. During Ms Cahill’s examination in chief, she was asked in relation to registration details of a car she had previously been the registered owner of:
Q. Now, I'm going to ask you about a motorcar that you told the guards that you were the registered owner of at some time in the past?
A. Yes.
Q. Do you recall that?
A. Yes.
Q. And what car was that?
A. A black Audi.
Q. And what model Audi was it?
A. A4.
Q. And do you recall now the registration numbers and letters of it?
A. I know it was 02 but I can't really remember the rest of it.
Q. I'm sorry?
A. I can't remember the rest of it. It was a 02.
Q. When you gave the guards a statement did you recall it then?
A. Probably.
Q. You gave them the number?
A. Yes.
26. The prosecution then sought leave to allow Ms Cahill to refresh her memory from the record of her statement to the Gardaí. Counsel for the appellant objected on the basis that what he characterised as “the provenance” of her recollection had not been properly established. It was submitted that it had not been established that in so far as her statement to the Gardaí contained a registration number that that number had been provided unprompted by the witness as a genuine recollection from memory, and had not been suggested to her by the Gardaí in the manner in which they had phrased their enquiries. The trial judge was disposed in light of the concern raised, and before ruling on the issue, to allow counsel for the appellant to cross-examine the witness about how the registration number came to be in her statement. That cross examination gave rise to the following exchanges:
Q. And when the guards came to you about the car were you able to -- the number appears in your statement?
A. Yes.
Q. And it can have got there in two ways I suppose. One is that you could remember the number at the time and gave that to the guards?
A. Yes.
Q. Or that the guards had said we're enquiring about a black Audi with this registration number, is that yours? Do you remember which of those two it was?
A. I don't really remember, no.
27. The trial Judge ruled as follows:
It appears to me to be somewhat unreal to -- where issues such as numbers or identification numbers are concerned that people cannot be expected to remember, particularly in the modern era where you don't have your county identification as we used to have in the old days and maybe four brief numbers, there are -- increasingly it is more difficult to remember the registration numbers of one's car and, as Ms Sammon has pointed out, even the current car that one might be driving. I think it is not unreasonable in the light of the evidence given by the witness that she, in answer to Mr Sammon, said that she gave the number to the guards at the time. In answer to Mr McGinn she said she didn't know whether they said it to her or she said it to them. The question is what was the number of the car and I think in fairness it would be appropriate to allow the witness to refresh her memory from her statement on the basis that that is -- that the fact of the ownership of that vehicle will be proved in due course independently of the witness's recollection.
28. Counsel for the appellant maintains that the judge’s decision represented an error in principle and that the witness should not have been allowed to refresh her memory as to what she had said to the Gardaí. Counsel for the respondent submits that the trial judge’s decision represented a proper exercise of her judicial discretion.
29. We agree with counsel for the respondent. The objection raised by counsel for the appellant was misconceived. The issue raised had the potential to bear on the question of what weight, if any, the jury might attach to the witness’s recollection once refreshed, but it was not a valid basis for contending that the witness should not be allowed to refresh her memory. There was no potential unfairness in the proposed procedure. It was not disputed that the witness had made a statement to the Gardaí, which was recorded in writing. There was no dispute that the record was a contemporaneous or nearly contemporaneous one. It was not disputed that in that statement there was an assertion by the witness that she was the owner of a vehicle bearing a particular registration number. The witness was allowed to refresh her memory with respect to what that registration number was. The written record was at all times available to the defence. They were entitled to cross-examine her before the jury about her recollection as refreshed; and to suggest to her that she might have been prompted by the Gardaí during informal questioning before the taking of a formal statement from her concerning the registration number at issue; and to suggest that it was the case that she had in truth acknowledged and accepted ownership of a registration number suggested to her, rather than providing a registration number unprompted and from genuine recollection. She could have been asked how come she could purportedly remember the registration number in the course of giving her statement to the Gardaí, but could no longer remember it when it came to giving evidence in court. Her response to these, and other possible questions that might be asked of her in cross-examination, had the potential to impact on the weight that the jury might attach to her claim of recollection. The defence had full scope to explore these issues. However, the trial judge’s decision to allow the witness to refresh her memory was a legitimate exercise of her judicial discretion, and we see no legal basis for criticising her decision in that regard.
30. Later on at trial the prosecution called a Ms Theresa O’Grady. This lady had received in the post a motor tax book relating to a motor vehicle with the registration 01-D-12430 registered to a John Byrnes, who was not known at Ms O’Grady’s address. The trial judge allowed her evidence and the contents of the tax document to be adduced to the jury.
31. The appellant submits that Ms O’Grady should not have been permitted to read out the contents of the document because in circumstances where she is not the author, this offends the rule against hearsay. However the respondent rejects this, submitting that as the truth of the document was not sought to be relied on there was no breach of the rule against hearsay.
32. The relevance of the evidence was that vehicle registration records for the burned-out vehicle of interest, a Black Audi which Gardaí believed was owned by Pamela Cahill and had used by the appellant on the night of the shooting, purported to show that ownership of the vehicle had in fact been transferred to a Mr John Byrnes of 12 Ballybeg Park, Waterford, on the day before the shooting, i.e., the 16th of October, 2012. The Gardai believed that this Mr John Byrnes was a non-existent person, and that the registration of a transfer of ownership of the vehicle to this purported person was on the basis of a phoney sale and with a view to misleading Gardaí in their enquiries. The true occupier of 12 Ballybeg Park, Waterford was Ms O’Grady. Her evidence was that she lived at 12 Ballybeg Park, Waterford and was living there in the autumn of 2012 when a letter addressed to a John Byrne was delivered to her address through the post. She opened the letter and found it contained a motor tax book, and kept it for two weeks. No John Byrnes had ever lived at her house. Then two Gardaí came to her door and they asked for a John Byrnes. She informed them that there was no John Byrnes there but told them she had a letter for a person of that name and she gave them the opened letter with a tax book in it. This tax book was the document in controversy. The Gardaí wished to establish what the tax book in question purported to say about the ownership of the vehicle as a piece of circumstantial evidence in support of their case. In doing so they were not seeking to prove the truth of those contents. In fact it was their case that there was no such John Byrnes.
33. We unhesitatingly agree with the respondent that this evidence was admissible. As the prosecution were not relying on the truth of the contents of the tax book, and in fact were contending the very opposite, namely, that in so far as it recorded the ownership of the vehicle as being in the name of a Mr John Byrnes that that was in fact untrue, evidence of the contents of the tax book did not constitute inadmissible hearsay. As this Court has previously said in The People (Director of Public Prosecutions) v O’Mahoney [2016] IECA 111 :
“44. A document can potentially be used in evidence for one of three purposes. It might be adduced as real evidence, alternatively as original evidence or as testimonial evidence.
45. A document is a physical thing, and where its potential evidential value lies in its physical appearance or some physical characteristic that it has, it may be used as real evidence. What that means is that it is introduced so that the tribunal of fact may observe for itself the appearance or characteristic in question, and take account of it. So, for example, it might be relevant from an evidential point of view that a document is torn or damaged, or stained with some substance.
46. However, a document is also a medium of communication and if its potential evidential value lies not in its physical appearance or characteristics, but rather in its content, i.e, in the information that it contains and communicates, then it may be used either as original evidence or as testimonial evidence. This is because content may be of evidential value in one of two ways. The mere fact that the document has certain content, whether or not it is true, may sometimes be probative and relevant in and of itself. If the intention of the party adducing the document is simply to demonstrate that the document has certain content, but that party is not seeking to rely on the truth of that content, then it is correctly to be characterised as constituting original evidence. However, if the document is adduced for the purpose of relying both on the existence of its content and the truth of its content, then it is properly to be characterised as constituting testimonial evidence.
47. If the intention is merely to use the document as original evidence it is sufficient to establish in evidence, through an appropriate witness or witnesses, provenance, due execution and content.
48. If, however, the intention is to use the document as testimonial evidence, i.e., the party adducing it is relying on the truth of its contents, then in addition to establishing, provenance, due execution and content, it is necessary to go further and show that the ‘testimony’ contained within it is admissible in evidence. In that regard such ‘testimony’ is subject to the ordinary rules of evidence, including ‘the rule against hearsay’.”
34. The tax book in the present case was admissible as a piece of real evidence and its contents were admissible as original evidence. There was nothing inappropriate about Ms O’Grady being asked to read the contents to the jury in the circumstances. If the contents had not been read out to them the jury would have been entitled to inspect the exhibit in the jury room and read the contents for themselves in any event. The contents were not hearsay unless they were being relied upon as establishing the truth of the matter being asserted. That was not the purpose for which the prosecution introduced this evidence. It was introduced to show that there had been a purported attempt to transfer ownership of that vehicle into the name of a person called John Byrnes, who was not believed to exist. This was a piece of circumstantial evidence that the prosecution were entitled to rely upon in support of their case. Accordingly, the evidence did not breach the rule against hearsay.
35. In the circumstances we are not disposed to uphold either of grounds (ii) or (v).
Ground (iii) – Alleged wrongful admission of interview of 18th of October 2012
36. The evidence was that on the 17th, and possibly also on the 18th of October 2012, D/Garda Bergin called to the appellant’s home in an effort to speak with the appellant, but the appellant was not home. He subsequently called to the appellant’s mother in law’s home, and succeeded in speaking to her. She was unable to indicate the appellant’s whereabouts but said she would make an effort to put him in contact with the Gardaí.
37. Although D/Garda Bergin denied in his evidence (as did his colleague D/Garda Cooke) that the appellant was regarded as a suspect at this point, it is clear that the appellant was at the least a person of interest to An Garda Siochána. As D/Garda Bergin put it “[a]s a result of the incident that took place in Golden certain names came to the fore and in order to eliminate or include, as the case might be, persons that may or may not be involved I carried out enquiries in relation to contacting Mossy Power …[and another named party] .”
38. Later, at about 7.25pm on the 18th of October 2012, D/Garda Bergin received a phone call from the appellant, who stated that he would call to Clonmel Garda station later on that evening, and that he would be accompanied by his solicitor. Later at approximately 8.25pm on that evening D/Garda Bergin received a second phonecall, this time from the appellant’s mother, to say he would be there “shortly”. The Detective Garda, who was out on patrol, returned immediately to Clonmel Garda station, arriving there at about 8.30pm, to find the appellant waiting for him.
39. Although the appellant had pre-arranged to have his solicitor, Mr Eamon Hayes, present Mr Hayes did not arrive at the Garda station until a short time after the appellant had arrived. In the meantime, the appellant had a short conversation with members of the Gardaí then present. The appellant was neither arrested, nor detained. Upon Mr Hayes’s arrival the appellant voluntarily made himself available for interview and was formally interviewed. This interview was conducted in an interview room by both Detective Garda Bergin and Detective Garda Cooke. It was not video-recorded, although video recording facilities were available. Detective Garda Bergin and Detective Garda Cooke both contended that the appellant had been offered a video recording of the interview but declined. This was strongly disputed by the solicitor. Be that as it may, a written note or memorandum of the interview was taken by one of the interviewing Gardaí and the interview was conducted in the presence of the solicitor.
40. The interview commenced at 9.05pm with the administration of the usual caution to the appellant, and that was followed by the following exchanges: Question: "Do you understand that you are free to leave the garda station at any time and that you are not under arrest?" Answer: "Yes." Question: "Do you wish to account for your movements on the 16th of October and the 17th of October 2012?" Answer: "Yes." Question: "Do you wish to consult with Eamonn at this point?" Answer: "Yes."
41. The record of the interview then notes that "Eamonn Hayes indicates that he is not aware of circumstances surrounding Maurice Power presenting himself at Clonmel Garda Station and requests to speak with his client" . He was allowed to do so, and Detective Gardaí Bergin and Cooke are recorded as leaving the interview room at 9.12 pm to facilitate this.
42. The interview resumed at 9.20pm, and there was substantive questioning of the appellant until 10.05pm when the interview concluded. The appellant’s solicitor had been present throughout. The notes were read over to the appellant at the end of the interview. The following exchanges then took place: Question: "Is there anything else you want to say?" "No, that's it." Question: "Are these notes a true reflection of the conversation we had?" Answer: "Yes." "Is there anything you would like to change or add?" Answer: "No." "Have you made this statement freely and voluntarily?" Answer: "I have." Question: "Will you sign these notes as being correct?" Answer: "Yes."
43. The appellant then signed the notes in the presence of Detective Garda Bergin, Detective Garda Cooke, and his solicitor Mr Hayes. Both Gardaí countersigned the notes as witnesses to his signature.
44. At the appellant’s trial there was a challenge to the admissibility of evidence concerning what had transpired at this interview. In the course of a voir dire counsel for the appellant vigorously objected to the admission of this evidence on the basis that the interview had not been video recorded in accordance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997, S.I. 74/1997 as amended by the Criminal Justice Act 1984 (Electronic Recording of Interviews) (Amendment) Regulations, 2010, S.I. 560/2010 (“the 1997 regulations, as amended”). While it was acknowledged the trial judge had a discretion to admit such evidence, counsel for the appellant relied on the case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 in support of the proposition that the Court should be reluctant to admit such evidence. He further relied on The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 as authority for the proposition that the 1997 regulations, as amended, apply to admissions made where an accused voluntarily presents him or herself for interview.
45. In her ruling on this point, the trial judge accepted that there was a reasonable doubt as to whether a video recording had been offered. However, she went on to consider whether the 1997 regulations, as amended, in fact applied at all, and also whether the case law to which she had been referred applied to the appellant’s case. Her ruling bears quotation in full:
“The question next arises as to whether the failure to video-record the interview amounts to a breach of fair procedures such as to render the memo of interview inadmissible. The Court has been referred to the cases of DPP v. Michael Murphy [2005] 4 IR 504 and DPP v. Michael O'Neill [2007] IECCA 8. In the former case, the Court of Criminal Appeal pronounced that henceforth -- which is a 2004 case, "Henceforth, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than in those circumstances specified in the regulations themselves and respect of station interviews. From this point onwards, the Court should only exercise its discretion pursuant to 27(4) for very good reason." These regulations apply to persons detained in garda stations for the investigation of criminal offences. Counsel for the accused argues that they should be extended to cover Mr Power because though voluntarily in the station, he was in fact a suspect for the murder. He seeks to drawn an analogy with the situation which arose in the case of DPP v. Michael O'Neill. There Carney, J excluded a statement from the accused who had gone voluntarily to the garda station because of the failure to videotape a signed cautioned statement made by him. The analogy in the Court's view is not well made. In the O'Neill case, the accused having been questioned by gardaí in his own home about a rape complaint made against him, admitted initially having consensual sexual intercourse. Later in the same interview he admitted that he had raped the complainant. On being told that he would have to come to the garda station to make a full cautioned statement, the accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. That cautioned statement was not video-recorded and the statement was ruled inadmissible by Carney J having regard to the decision of the CCA in DPP v. Michael Murphy.
The factual situation arising in the DPP v. O'Neill is strikingly different from that disclosed on the evidence in this case. O'Neill had admitted rape. Had he not elected to go to the garda station he would most certainly have been arrested and brought there. He was in the circumstances entitled to all of the protections that the law affords to persons detained in garda stations. In the instant case, the accused Maurice Power was in an entirely different category to that of Michael O'Neill. Following the violent death of Shane Rossiter, garda interest in those with whom he was on bad terms, and there were a number of people, was entirely appropriate. One of these was the accused Maurice Power. The fact that a person had a dispute with a man who died a violent death does not make one a suspect in his death without further evidence. It would, however, be sufficient to make that person what is described as "a person of interest" to the gardaí. Maurice Power and others who were being sought that day on the 17th and 18th were potential suspects, not suspects. In the course of the day of the 17th, the day of the killing, and on the morning of the next day, Detective Garda Bergin attempted to locate Maurice Power, calling to a number of houses and speaking to a woman who he described as Maurice Power's mother-in-law. At 7.25 pm on the 18th of October 2012 Detective Garda Bergin received a phone call from the accused offering to meet him at Clonmel Garda Station in the company of his solicitor, Eamonn Hayes. About an hour later he received a phone call from the accused's mother to say the accused would be arriving shortly. Garda Bergin encountered the accused on his way into the station. The accused's solicitor had not arrived at that point. Detective Garda Bergin brought him into the station and introduced him to the member in charge. He was informed in the presence of the member in charge that he was not under arrest, that he was free to leave the station at any time. The member in charge recorded these matters in the station book. As Mr Hayes was not present, the accused was invited to ring him and did so. None of this evidence has been contested.
Mr Hayes arrived, according to the evidence, at 9.03 pm. Accordingly, the accused was in the station for quite a number of minutes before his solicitor arrived. The parties and D/Garda Cooke, who had arrived to assist Garda Bergin, went to the interview room. There is no dispute that Maurice Power voluntarily went to the station. There is no dispute on the accuracy of the memo of interview. There is no dispute that Mr Power was cautioned and, given his previous history with the deceased, it was entirely appropriate that he was cautioned. There is no dispute that he had an opportunity to consult with his solicitor. There is no dispute that he was informed of his right to leave the station at any time. There is no dispute that his solicitor was present throughout the interview. While it would be preferable to have a video of that interview, its absence does not make it inadmissible. The Court therefore holds that there was no breach of fair procedures in the taking of a cautioned statement from Maurice Power and accordingly that the memo of that interview is admissible.
46. The appellant submitted to this Court that it was disingenuous to suggest that the appellant was not a suspect in circumstances where Gardaí saw fit to caution him at the beginning of interview; and, moreover, were keen to emphasise to the trial judge that in fact they had offered the option of video recording. It was submitted that the trial judge’s finding of fact in that regard was therefore against the weight of the evidence.
47. In reply, the respondent submitted that the 1997 regulations, as amended, do not apply to situations where an accused has voluntarily attended a Garda station. It was further submitted, that even if they did apply, a breach in circumstances such as obtained in this case, where the accused had voluntarily submitted to interview and was interviewed only after being afforded the opportunity of consulting with his solicitor, and with his solicitor present in the interview room throughout, would not justify the ruling of the evidence inadmissible. Moreover, the respondent submits that the trial judge’s finding that the appellant was not a suspect but rather a person of interest was one that open to her on the evidence, and that while the appellant might disagree with that finding there was evidence to support it.
Decision
48. Regulation 3(2) of the 1997 regulations, as amended, specifies their scope of application. It provides:
“These Regulations shall apply to interviews, including the taking and reading back of statements, that take place in a station with persons who have been detained under any of the following provisions:
(a) section 30 of the [Offences against the State] Act of 1939;
(b) section 4 of the [Criminal Justice] Act of 1984;
(c) section 2 of the [Criminal Justice (Drug Trafficking)] Act of 1996;
(d) section 42 of the Criminal Justice Act 1999 (No. 10 of 1999);
(e) section 50 of the [Criminal Justice] Act of 2007;
(f) section 16 or 17 of the Criminal Procedure Act 2010 (No. 27 of 2010).”
49. Regulation 4(1) of the 1997 regulations, as amended, then goes on to state:
“4. (1) Subject to paragraph (3), interviews with persons to whom these Regulations apply shall be electronically recorded.”
50. Regulation 4(3) then provides:.
51. We agree with counsel for the respondent that prima facie the 1997 regulations only apply to the interviewing of suspects detained under one of the specified statutory provisions. The accused in this case was not in detention at the time that he was interviewed on the 18th of October 2012.
52. We feel it is important to say something about the cases of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 and The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8 referred to in argument, and by the trial judge in this case.
53. Before doing so, however, it is important to note that in 2003, two years approximately before the Court of Criminal Appeal gave judgment in the Murphy case, the issue of non-compliance with the 1997 regulations had been raised as an issue in another case, namely The People (Director of Public Prosecutions) v. Connolly [2003] 2 I.R. 1.
54. In Connolly, the accused, who was tried for trespass and stealing, was interviewed and made admissions while in s.4 detention, but the interview was not video recorded. The admissions were nevertheless admitted by the trial judge applying s. 27(4) of the Criminal Justice Act 1984. Hardiman J, giving judgment for the Court of Criminal Appeal, which upheld the trial judge’s ruling, had sounded the following warning note (at pp 17 and 18):
“It is clear from the history of legal and legislative concern with uncorroborated confessions over a period of nearly two decades that legislators and judges alike have emphasised the importance of the audio visual recording of interviews. This is routine in most first world common law countries. Its failure to become routine, or even remotely to approach that status in this country, nearly twenty years after statutory provision for it was first made, has ceased to be a mere oddity and is closely approaching the status of an anomaly. It also has the consequence that, in a very high percentage of criminal trials there is a hard fought issue ('the trial within a trial') as to the admissibility of statements which are often whole or a large part of the prosecution case. Twelve years ago the Martin Committee reported that this situation had virtually ceased in Ontario because of audio visual recording. The courts have been very patient, perhaps excessively patient, with delays in this regard. The time cannot be remote when we will hear a submission that, absent extraordinary circumstances (by which we do not mean that a particular garda station has no audio visual machinery or that the audio visual room was being painted), it is unacceptable to tender in evidence a statement which has not been so recorded.”
55. The case of The People (Director of Public Prosecutions) v. Murphy [2005] 4 IR 504 which was relied upon by the appellant at the voir dire in the present case, and also in argument before us, again concerned circumstances in which an accused, on this occasion suspected of murder, was interviewed while in detention under s.4 of the Criminal Justice Act, 1984 but the interview was not video-recorded. It was sought to have admissions made by the accused at interview excluded on the basis that there had been a breach of the 1997 regulations. The Garda station in question was equipped with the necessary equipment, and it was believed to have been working. No satisfactory explanation was put forward for the failure to utilise it in the course of interviewing that accused. The trial judge had ruled the evidence admissible notwithstanding the breach of regulations, applying s.27(4) of the Criminal Justice Act 1984.
56. The Court of Criminal Appeal upheld the trial judge’s ruling, but only with considerable reluctance, noting in its judgment the remarks of Hardiman J in Connolly, and also a later dictum from a judgment of the Special Criminal Court in the case of The People (Director of Public Prosecutions) v Kelly (Unreported, Special Criminal Court, 26th November, 2004) suggesting that past admonitions about the desirability of recording interviews had had little effect.
57. The Court of Criminal Appeal upheld the trial judge’s ruling on the basis that there had not been any great contest in the trial as to what was actually said by the accused and, apart from one exception, there was no improper pressure, manipulation or threat of any sort adopted or applied by the interviewing gardaí during the period of his detention. Moreover, the events in that case had taken place prior to the judgment in Connolly.
58. It was in that context that the Court of Criminal Appeal had gone on to say, obiter dictum, that:
“43. However, going forward and for the reasons already given, there should be a marked reluctance to excuse failures to comply with the requirements of the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, other than those circumstances specified in the Regulations themselves. We feel, therefore, that in respect of station interviews from this point onwards, the court should only exercise its discretion under s. 27(4) for very good reason.”
59. The Murphy case is not, however, authority for the proposition that a video recording obligation extends beyond the categories of cases specified in regulation 3(2) of the 1997 regulations, as amended. That case certainly does not suggest that such an obligation extends to persons who volunteer to be interviewed having presented themselves at a Garda station but who have not been detained. No such issue was canvassed or discussed in that case. While it might be suggested that as a matter of good practice it is desirable that any such interview should be video recorded, if only for the protection of both interviewers and interviewee from the possibility of false allegations or even misunderstandings, the failure to do so does not amount to a breach of the 1997 regulations, or for that matter of any other statute or statutory instrument or rule of the common law, such as would presumptively require the exclusion of admissions made in the course of such an interview. That is not to deny that a failure to video record when facilities to do so were available might possibly be a relevant circumstance, for consideration amongst others, in determining whether a challenged statement was voluntary or otherwise.
60. In so far as counsel’s submission to the court below was based on The People (Director of Public Prosecutions) v. O’Neill, what was opened to the court below was not binding on the trial judge in any way. What was put before the trial judge in this case was an account of a first instance ruling by Carney J, sitting in the Central Criminal Court, in Mr O’Neill’s trial for rape, excluding a statement made by Mr O’Neill while he was voluntarily attending a Garda station, on the grounds that it had not been video recorded. There was no judgment of Carney J opened to the court, nor was any transcript of Carney J’s ruling provided to the trial judge. On the contrary, what was opened to the trial judge was the judgment of the Court of Criminal Appeal in the appeal by Mr O’Neill against his conviction - The People (Director of Public Prosecutions) v. O’Neill [2007] IECCA 8.
61. It is apparent from that judgment that the ruling of Carney J, now being relied upon, was not in fact the subject of the appeal. The appeal concerned a different issue altogether. However, in setting out the background to the appeal, Kearns J, who gave judgment for the Court of Criminal Appeal, simply noted:
“4. … The accused elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. Carney J. ruled that as the statement made in the garda station had not been videotaped, he could not be satisfied that it was admissible having regard to decisions of this court in The People (Director of Public Prosecutions) v. Michael Murphy [2005] IECCA 52, [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98.”
We would comment, en passant, that we have considered the Ivers case, and it is difficult to see in what way Carney J might have regarded it as potentially relevant, as it was not concerned in any way with the 1997 regulations. Be that as it may, counsel for the appellant, on the strength of the brief reference just quoted, submitted to the trial judge that there had been “a tacit approval” by the Court of Criminal Appeal of Carney J’s ruling.
62. We emphatically reject that suggestion. It is clear to us that the reference to Carney’s J ruling by the Court of Criminal Appeal in O’Neill was purely to provide the context in which that court was being asked to address another, and wholly different, point. The Court of Criminal Appeal’s judgment in the O’Neill case was simply not an authority for the proposition advanced by counsel for the appellant in the court below, and again before us.
63. We are satisfied that in the present case there was no breach of the 1997 regulations because the appellant was not in detention under one of the relevant statutory provisions at the material time.
64. Moreover, even if it is considered desirable that the “spirit” of the 1997 regulation be observed in the case of “suspects”, as opposed to persons who are merely “of interest”, who are being interviewed while voluntarily present in a Garda station, and we express no definitive view on that issue in circumstances where it has not been fully argued before us, we consider that we would in any event have no basis for interfering with the trial judge’s finding of fact that the appellant in this case was a person of interest and not a suspect. There was clearly evidence on foot of which she could have arrived at the decision she did. She heard the evidence first hand, heard the relevant witnesses being cross-examined, and was best placed to form a view as to their credibility and reliability. She had evidence from two Detective Gardaí that the appellant was not at that point a suspect and was merely a person of interest. That was evidence she was entitled to accept and to act upon.
65. Finally, we consider that in any event no question of any unfairness to the appellant arises from the circumstances in which he was interviewed, even though the interview was not video-recorded. The appellant had had the benefit of legal advice before submitting to being interviewed, and his solicitor was present throughout. He acknowledged both orally and in writing that he was there voluntarily, he was cautioned before it began, and he accepted the record was accurate There is no basis in the circumstances for suggesting that the circumstances of the interview were unfair, that the appellant’s rights were not respected, or that what he said was involuntary. In our view the trial judge was entirely right to admit this evidence.
66. In the circumstances we reject Ground of Appeal No. (iii)
Ground (iv) – Interviews during detention from the 11th to 15th of December 2012
67. A voir dire on the lawfulness of the appellant’s arrest and detention commenced on the 9th of May 2014 and lasted until the 16th of May 2014. Evidence was heard from 29 Garda witnesses and one civilian. The defence objected to the admission of all memoranda of interviews conducted while the appellant was detained on the basis, inter alia, that the interviews and admissions made therein were not voluntary and not reliable and that a purported third extension of the appellant’s detention was unlawful.
68. The defence submitted that there was a reasonable doubt as to the voluntariness of the appellant’s confessions in circumstances where he had been supervised by interviewing Gardaí during cigarette breaks directly before, and/or in between, interviews. The learned trial judge ruled as follows:
“While clearly not best practice, the Court can understand the convenience of having the interviewers supervise both cigarette breaks, that is prior and subsequent to interview. This fact alone does not give rise to an inference of inappropriate behaviour. In fact, the most striking element of this part of the application is that there is not a shred of evidence of inappropriate behaviour by the investigators. It is of course open to an accused in a voir dire to give evidence as to how his will was overborne. While suggestions have been made by counsel for the accused as to threats made, particularly in the period leading up to interview 6, the Court has absolutely no evidence of such behaviour. The Court is not willing to draw an inference of nefarious practices in the absence of primary evidence of the same. The evidence that is available to the Court supports the voluntariness of the accused's admissions. Throughout his detention the accused appears to have been what I think one witness described as "a talker". He appears to have engaged with every garda who supervised his smoking breaks, be they investigators or not.
…
The very next morning following an interview and during a smoke break he made comments to Detective Garda Deegan and Detective Garda Cooke which each of them noted separately.
…
He stated that if he did admit he'd be saying he was the only one there, that he drove and pulled the trigger. He went on to say that, “You don't pull a trigger intending to maim or scare someone. You do it with the intention of killing someone.” It was a case of kill or be killed.”
69. In this appeal the appellant criticises the ruling of the trial judge on the voluntariness issue. It was submitted that in order to be satisfied beyond a reasonable doubt that there was no undue influence or undue pressure or any oppression, the court had to be satisfied beyond a reasonable doubt that the evidence of the interviewing members was correct and that it could be relied upon. It was submitted that these criteria simply were not satisfied by the evidence available to the court of trial.
70. It was further submitted that the evidence adduced showed that there was a vast amount of contact between the appellant and interviewing members, the pattern of which raised a very real suspicion that it was for improper motives. That was said to be so particularly in light of the fact that the appellant had on previous occasions apparently displayed a willingness to speak about the investigation outside the scope of a formal interview.
71. It was further submitted that such were the conflicts in the evidence between prosecution witnesses themselves, and also between prosecution witnesses and the custody record, that the trial judge simply could not have been satisfied to the required standard that nothing untoward happened when the interviewing members supervised the appellant whilst he was taking cigarette breaks, and that they only engaged in such supervision for the reasons of convenience and expediency that they had suggested.
72. In response, counsel for the respondent reiterates the point made by the trial judge in her ruling, namely that while suggestions of impropriety were put, these suggestions were rejected and there was no actual evidence to the contrary. Moreover, it is pointed out on behalf of the respondent that the trial judge watched the most contentious interview being the one in which the principal admissions were made, namely interview no 7, and having done so observed in her ruling that:
“The atmosphere in the interview room is calm and relaxed throughout. The accused gives the impression of a man who has decided to tell his side of the story, not merely what he did but why he did it. In the course of the interview he yawns and stretches, he smiles on one occasion, occasionally he looks out the window, he fiddles with his clothes, puts his hands on his head. He confirms that there was no interference with him by the interviewers during the recent cigarette break.”
73. We are satisfied that the complaint concerning the trial judge’s ruling on voluntariness is untenable in the circumstances of this case. It was in accordance with the evidence. While there was a degree of inconsistency in the evidence of different witnesses, and between witnesses and the custody record, there was certainly evidence on which the trial judge was entitled to rely if she was prepared to accept it. Again, she heard the evidence first hand, she heard the witnesses being tested in the crucible of cross examination and was best placed to make evaluations of their credibility and reliability. We see no basis on which we could legitimately interfere with her finding on voluntariness.
74. The ruling of the trial judge admitting these interviews into evidence is also criticised on the basis that there were matters to which the appellant confessed but which in fact were not borne out by the objective evidence. It was submitted that these highlighted the unreliability of the admissions and statements made by the appellant during the course of his detention. Emphasis was placed principally on statements made by the appellant during the course of interview number 7 which directly contradicted the evidence of Dr. Cassidy, a witness Rachel Keating, Detective Garda Bergin, and certain telephone data placed in evidence.
75. In response, counsel for the respondent contends that the trial judge arrived at her view that it was proper to admit the evidence notwithstanding these inconsistencies, as she was entitled to do. She had not ignored them, but rather had acknowledged them stating that the fact that there were the inconsistencies between the accused's evidence and that of other witnesses highlighted by counsel for the accused “is classically a matter for a jury to resolve.” For her part, however, the trial judge was satisfied to rule for the purposes of the voir dire that the admissions were capable of being relied upon, and therefore ought properly to be admitted before the jury.
76. We can find no fault in the trial judge’s approach. She was entirely correct in suggesting that the highlighted inconsistencies were properly a matter for the jury to resolve, and we believe that she would not have been correct to rule them out on the grounds of alleged questionable reliability.
77. Finally, under this ground of appeal, there is a challenge to the trial judge’s ruling that the admissions in question were made while the appellant was in lawful detention. The challenge is based on the contention that the trial judge erred in holding that a third extension of the appellant’s detention granted by District Court, upon the application of Chief Superintendent Roche, was invalid. The case in that regard is that the impugned third extension was granted on the basis of the Chief Superintendent’s evidence which was based upon an incomplete briefing that he had received from subordinate officers involved in the investigation concerning the status of the investigation. In particular, it is complained that Chief Superintendent Roche had not been apprised of the fact that the appellant had begun to make admissions prior to the application for third extension of the appellant’s detention being made, and that therefore the District Court Judge’s decision to grant an extension had not been made on a sound factual basis. This, it was submitted, rendered the process entirely flawed and rendered the third extension of detention illegal.
78. Section 50 of the Criminal Justice Act 2007 (“the Act of 2007”) applies, inter alia, to a case of suspected murder involving a firearm – see s.50(1)(a) of the Act of 2007.
79. Subsection (2) of s.50 of the Act of 2007 provides:
80. Subsection (3) of s.50 of the Act of 2007 is lengthy, but the relevant parts of it for the purposes of this case are sub-subsections (a), (b), (c) and (g)(i) &(ii), which provide:
“(3) (a) The period for which a person may be detained pursuant to subsection (2) shall, subject to the provisions of this subsection, not exceed 6 hours from the time of his or her arrest.
(b) A member of the Garda Síochána not below the rank of superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding 18 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(c) A member of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding 24 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(g) (i) A member of the Garda Síochána not below the rank of chief superintendent may apply to a judge of the Circuit Court or District Court for a warrant authorising the detention of a person detained pursuant to a direction under paragraph (c) for a further period not exceeding 72 hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.
(ii) On an application pursuant to subparagraph (i) the judge concerned shall issue a warrant authorising the detention of the person to whom the application relates for a further period not exceeding 72 hours if, but only if, the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously.”
81. In this case, the appellant had been arrested under s.50(2) and was initially detained for six hours pursuant to s.50(3)(a). His detention was then extended for up to a further eighteen hours pursuant to s.50(3)(b) – (the 1st extension). It was subsequently extended for up to a further 24 hours pursuant to s.50(3)(c) – (the 2nd extension). It was then extended yet again by a District Judge at Cashel District Court for up to a further 72 hours pursuant to s.50(3)(g) – (the third extension). The latter is the extension under challenge.
82. The trial judge’s ruling in that regard was as follows:
“The final argument advanced on behalf of the accused, and I suppose it's an alternative argument to the argument at 3, was that the further detention authorised by the District Court in Cashel at 5.02 pm on the 13th of December 2012 was invalid because the District Justice was not informed that the detainee had begun to make admissions, and therefore he did not have a complete account of what had happened during the course of the detention. Counsel for the accused submits that it's not clear, we don't know why Inspector -- Chief Superintendent Roche who was making the application wasn't aware of the fact of the admissions. And he did concede that were he aware he would have told the Court. But looking again at the chronology of the events, the admissions were made at an interview which concluded at 13.40. It is highly likely that the preparatory notes for Chief Superintendent Roche's application were prepared in advance of that. And the suggestion that something different might have happened were the fact of the -- the fact that Mr Power had begun to make admissions then made known to the judge is not clear to the Court. Clearly, even in the event of admissions being notified to the Court, there were still investigations to be carried out, and in fact the case submitted by counsel for the prosecution, the People at the suit of the Director of Public Prosecutions v. Terence O'Toole and James Hickey [1990 WJSC-CCA 1662] makes that very clear, where it is said at page 39: "The Court rejects the submission that once an accused has made a statement involving himself directly or indirectly in the crime for which he is charged, that that fact necessarily concludes that there is no necessity for his further detention for the proper investigation of the offence. It is not only the right but also the duty of gardaí investigating the crime of murder to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence or the person or persons accused of that crime. The taking of statements, whether exculpatory or inculpatory is only a part of an investigation. But in the opinion of this Court is most certainly not a full and proper investigation of the offence." So, the Court is not persuaded that the furnishing of this information to the District Court would make a material difference to the order made by that Court. And the Court also notes that during the course of this hearing the accused was present at all times and he was represented by Mr Hayes, solicitor, who apparently cross-examined on -- witnesses on his behalf, and it -- certainly the accused knew he had made admissions. He had his solicitor present. If he thought that that was a material point it was open to him to address the Court on it. However, I do not consider that the furnishing of that information was likely to have made a material difference to the order made by the Court, and I also note that there is in fact in being a valid District Court order, which was made within jurisdiction and within the terms of section 50 as described.”
83. In this Court’s view the trial judge’s ruling was correct. Unlike the first two extensions, which involved administrative, or at most quasi-judicial, decisions by Garda officers, the third extension was qualitatively different, and was designed to be by the Oireachtas. It was a judicial decision by a court established under the Constitution, i.e., the District Court, which is a court of record. It was a decision based upon a court hearing at which all interested parties were present and represented, in which evidence was adduced, in which there existed an opportunity to cross-examine witnesses and test the evidence adduced, and in which interested parties had the right to be heard both with respect to the law and the facts. As provided for in the statute, the District Court’s decision was given effect to by a judicial warrant authorising the continued detention of the appellant. There is no suggestion that the warrant in this case was made other than within jurisdiction.
84. We do not consider that a judicial warrant of this sort, made within jurisdiction, is susceptible to challenge in the course of a trial on indictment in the manner in which the appellant seeks to do so in this case. As the trial judge clearly recognised, what she had before her was an ostensibly valid District Court order, from a court of record, that had ostensibly had been made within jurisdiction. The only legitimate means open to the appellant if he desired to seek look behind that warrant was to initiate judicial proceedings to condemn it on some justiciable grounds. There was ample opportunity for the appellant to do this as he personally would have known at all times at what point he had begun to make admissions. Moreover, even if he had never mentioned it to his solicitor, it would have been obvious to his solicitor when it was that he had begun to do so once the Book of Evidence was served. The appellant did not, however, bring judicial review proceedings, and there is simply no jurisdiction or scope for a trial judge, even in the Central Criminal Court (which is the High Court exercising its criminal jurisdiction), and obviously impossible in any Circuit Criminal Court case, to judicially review an order of the District Court within the four walls of a trial on indictment.
85. However, quite apart from this we consider the trial judge’s reasons for dismissing the misconceived challenge were valid in any event. The evidence actually put before the District Judge, even though he was not told that the appellant had begun to make admissions, was clearly sufficient in any event for the District Judge to have been satisfied that the appellant’s continued detention was necessary for the proper investigation of the offence for which he had been arrested. The interviewing process was clearly on-going and had not concluded. The case of The Director Of Public Prosecutions v O’Toole 1990 WJSC-CCA 1662 to which the trial judge referred was apposite, and the trial judge was correct in her decision in our assessment. We therefore reject this complaint also.
86. Accordingly, Ground of Appeal No. (iv) is dismissed.
Ground of Appeal No. (vi) – the admissibility of the XRY Report/Printout
87. During the course of the trial the respondent sought to introduce into evidence a printout of data (the “XRY report”) downloaded from the mobile phone and SIM card of the deceased using a software tool known as the XRY Forensic Phone Analysis System.
88. The evidence relied upon in support of the application came, inter alia, from Sergeant Mary Gilmartin who told that court that she was trained and qualified to operate the XRY Forensic Phone Analysis System, that she had received a Nokia mobile phone handset labelled BC 08 from Sergeant Brendan Carey (there was later evidence that Sgt Carey had recovered that handset from the kitchen of the deceased’s house where it was plugged in to charge), and that using the XRY Forensic Phone Analysis System she had on the 17th of October 2012 downloaded data from the SIM card in that handset, and further on the 18th of October 2012 had downloaded data from the mobile phone handset itself. Then again using XRY Forensic Phone Analysis System software she had generated a printout (the “XRY report”) covering a specified period, which she was exhibiting. This report or printout contained details of calls made and received over the period of interest as recorded on either the SIM card or the handset itself, as well as details of the dates and times of SMS texts sent and received in the period of interest, the numbers from which texts were received and to which they were sent, and a record of the actual text transmitted or received.
89. Under cross-examination, Sergeant Gilmartin accepted that she did not really know how the XRY Forensic Phone Analysis System worked:
“Q. Yes. I think your role essentially, Sergeant, was to get your device or programme, to plug it into the phone, get a printout and hand it on?
A. That is correct, Judge.
Q. Do you know how the software works?
A. Very vaguely, Judge, I'm not
Q. You wouldn't purport to be an expert in that?
A. Absolutely not, Judge, I'm qualified in the operation of it.
Q. Yes?
A. And to make sure that it's done correctly, but that is my sole function in relation to it.
Q. Certainly, you wouldn't be able to help us as to how it actually operates?
A. No, Judge, I would not.
Q. Did you check the device time?
A. The only place that that is recorded is sometimes depending on the model of the phone, on the first couple of pages of the report, if you just give me a moment and I'll just check and see if it was recorded on this, no, Judge, it's not recorded on the download.”
90. Counsel for the appellant objected to the introduction of the XRY report. He submitted that in the absence of authoritative evidence as to the workings of the relevant software programme and phone system, the court could not be satisfied as to the admissibility of the printouts, whether as real evidence or as hearsay.
91. The trial judge was referred to R v Cochrane [1993] Crim L. Rev 48; The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468.
92. Counsel for the respondent contends that the printout was admissible as real evidence and that it was not necessary for Sergeant Gilmartin to know how the electronics of the phone, or indeed the analysis software, actually worked. His argument is essentially that mobile phone technology is now as ubiquitous as television and CCTV technology. Gardaí routinely download CCTV footage from crime scenes and give evidence that they have done so, and produce the download as real evidence, and it has never been suggested that a Garda doing so must understand how a video camera or a television actually works. The important thing is to be trained in the operation of such equipment and in how to download relevant data, which in this instance Sergeant Gilmartin was.
93. There were also subsidiary complaints that there was no evidence that the printout produced in court was the same as the one generated by Sergeant Gilmartin on the 17th and 18th of October 2012. It appears that a second copy or copies may have been printed out in April 2014 for production and use at the trial and the appellant complained that there was no evidence concerning the storage of the information on the laptop concerned between October 2012 and April 2014, nor any evidence that it had not been altered or tampered with during that period. That was in fact the position on the evidence when these subsidiary complaints were initially made, but due to circumstances arising later in the trial necessitating a re-visiting of the issue of the admissibility of the XRY report further evidence was heard which established that the designated laptop was kept in the incident room at Tipperary Garda Station, it was encrypted and access to it was limited to two persons, namely Sergeant Gilmartin and Garda O’Brien, both of whom gave evidence at the trial.
94. The trial judge rejected all of the appellant’s objections, and with respect to the primary objection ruled:
“Garda Gilmartin is a person trained in the operation of the she's a qualified operator of the XRY forensic phone analysis system. She described it that's essentially a computer program that forensically analyses and downloads the contents of mobile phone on to a computer. She described that it works on the phone and on the SIM card and on a variety of electronic products and she confirmed that the device has no or the XRY machine has no information about the device before it puts in its download. It's a forensic system, so it extracts the information that is on the mobile phone. The Court considers the situation analogous to a radiologist giving evidence of an MRI scan or a CT scan or an X ray where it there is no necessity for the radiologist to know the intricacies of the machine that conducts the work in order to give evidence of what it produces and the Court holds that this is a similar situation. Garda Gilmartin is trained in XRY analysis and downloading and she has produced that. She has described the operation and function of the XRY machine and accordingly the Court holds that the it that the XRY reports are real evidence in the case.”
95. We consider that the trial judge’s ruling was correct. In the first instance we should state that we regard the case of R v Cochrane, relied upon by the appellant, of being of very limited assistance. That case concerned a prosecution for theft in circumstances where the defendant had gone in to a bank to lodge a certain sum to his account but due to an error by the bank teller a much larger sum was credited to his account. Though the defendant knew there had been an error, he withdrew monies to which he was not entitled from various ATM machines and spent it. In the course of his prosecution for theft the prosecution sought to have admitted into evidence certain computer print-outs and till rolls. The prosecution maintained that because there had been an inputting of instructions by the customer on the ATM keypad in each transaction of interest, that part of the procedure was akin to a typewriting process and the evidence to be derived from the till roll or printout recording it, that the prosecution wished to place in evidence was, to that extent, real evidence properly admissible before the court. There was also, however, evidence that each ATM was connected to a mainframe computer in a central location where data relating to transactions processed through the ATMs’ concerned was stored in the mainframe computer’s memory. None of the witnesses who called on behalf of the prosecution had any knowledge of the function or operation of the mainframe computer, none of them had any training or experience in operating it, and none of them was able to supply affirmative evidence that the mainframe computer was operating correctly at relevant times. The appellant had made the case at trial that there was a statutory prohibition on the admission of the print-outs and till rolls on any basis unless the conditions set out in s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) were satisfied, and in this case, the appellant maintained, they had not been satisfied. The trial judge had ruled against the appellant and had admitted the evidence.
96. S. 69 of the English Act of 1984 had provided:
(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown –
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer; and
(b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.
97. The actual issue in the case before the Court of Appeal was whether, in the circumstances of the case, s.69 of the Police and Criminal Evidence Act 1984 (the English Act of 1984) did in fact apply, and if so, whether the pre-conditions to admissibility were in fact satisfied in the circumstances of the case. (We would observe in passing that s.69 of the English Act of 1984 was later repealed and replaced by s.60 of the Youth Justice and Criminal Evidence Act 1999. The position in the neighbouring jurisdiction since 1999 is that evidence, or the absence thereof, pertaining to the reliability of a computer system is now simply a matter that goes to weight.)
98. The Court of Appeal in R v Cochrane held that without authoritative evidence about the operation of the relevant machines it was impossible for the court to decide whether or not s.69 of the English Act of 1984 could have applied, and that it had no choice but to allow the appeal in those circumstances.
99. Accordingly, R v Cochrane is readily distinguishable from the circumstances of the present case, and we do not consider it that it provides very much assistance, save to the extent of noting that it appears to have been regarded by Kearns J, giving judgment for the Court of Criminal Appeal, in The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468, as providing support for the proposition that before a computer record can be relied upon on as real evidence, there ought to be authoritative evidence to describe the function and operation of the relevant computer.
100. The law in this jurisdiction, since The People (Director of Public Prosecutions) v. Murphy [2005] 2 IR 125 and The People (Director of Public Prosecutions) v. Meehan [2006] 3 IR 468 is that records generated by computer and information technology systems, either mechanically or electronically, without human intervention, are admissible as real evidence, provided the court has evidence concerning the function and operation of the system in question. In simple terms what is required in that regard is evidence of what the machine does (as opposed to how it does it), and that it was operated (and prima facie was functioning) correctly on the relevant occasion. We are satisfied that Sergeant Gilmartin provided the necessary evidence in this case. She outlined what a computer operating the XRY Forensic Phone Analysis System does, she confirmed that she was trained to use that system and that she in fact did so, and that it was her function “to make sure that it's done correctly”. It was implicit in her having stated that, that she was maintaining that she had operated the system correctly and also that, in so far as she was concerned, prima facie it was functioning correctly.
101. While it is, of course, always open to an accused to challenge the reliability of such records, we consider that evidence pertaining to reliability is a matter that goes to weight rather than to admissibility. We alluded earlier to an issue arising later in the trial that necessitated some re-visiting by the trial judge of her earlier rulings. This gave rise to a supplementary ruling which, for completeness, although no complaint is made about it on this appeal, we feel it appropriate to set out:
“The Court has been asked to revisit its ruling on the admissibility of information contained in an XRY download from the phone and SIM card of Shane Rossiter. In the course of the evidence on Tuesday the 27th of May it emerged that there were two different copies of the XRY report on the phone, one produced by Garda O'Brien, the telecoms liaison officer on the 16th of April 2014, and another report, which has been exhibited in the trial by Sergeant Mary Gilmartin, which was produced on the 22nd of April 2014. Garda O'Brien's report is in chronological order, while Sergeant Gilmartin's is in random order. Neither officer has been able to explain why there is a difference in the format between the two reports. Garda O'Brien has given evidence that there are regular updates of the software to allow the data to be presented in a more user-friendly fashion. He gave an example that the font could be changed for example. One such software update allowed what had previously been random entries to be presented in chronological order. He wasn't sure when this update was received, but it was prior to the 16th of April. Neither Garda O'Brien nor Sergeant Gilmartin could explain how Sergeant Gilmartin was able to produce a report in the older random format six days later on the 22nd of April.
While the issue of formatting has not been resolved the evidence remains clear that once an XRY file has been created the content of that file cannot be manipulated or altered. It is retained on the hard drive of a designated XRY laptop, which is kept in the incident room in Tipperary Garda Station. It is encrypted and access is limited to the two witnesses who gave evidence. However many reports are produced in whatever format, the content remains the same. This is borne out by the two reports in different format, which have been produced in this trial. While the format is different the content is identical. The date of creation of the file is also identical, being in respect of the phone device the 18/10/2012 at 16:30:38.
Mr McGinn, on behalf of the accused man, points out to differences between the call data information and the XRY analysis. The Court considers the explanation given by Garda O'Brien is persuasive. The XRY analysis is limited to what is physically present on the phone. Call data can locate items that have been deleted. The fact that a call shows up on call data, which is not present on the XRY analysis, does not indicate an unreliability in the XRY analysis. Finally, the XRY reports in both formats show two calls were made from the phone at 16:46 and 16:57 on the 17th of October 2012. Garda, now Sergeant Gilmartin has given evidence that she did not make those calls. That of course does not mean that that the calls were not made. The phone at the time was in garda custody. There is evidence -- there is no evidence that Garda Gilmartin had exclusive access to it. The evidence of Garda O'Brien is that the XRY designated laptop is kept in the incident room in Tipperary Garda Station. The Court notes that the XRY report on the SIM card was created at 17:05:25 on the 17th of October 2012, approximately one hour after the phone was handed to Garda Gilmartin and after the two calls identified were made. The Court remains satisfied beyond reasonable doubt that the content contained in the XRY report is real evidence and is admissible in the trial.”
102. In the present case, the trial judge had no concrete reason on the basis of the evidence she received to be concerned about the reliability of the XRY report. Such concerns as were raised at different stages by defence counsel were purely speculative, or not borne out on the totality of the evidence. In our view the XRY report was properly admitted.
103. We therefore dismiss Ground of Appeal No. (vi).
Grounds of Appeal Nos. (vii) and (viii) – the Corroboration Grounds
104. Prior to embarking upon her charge to the jury, the trial judge discussed with counsel the application of s.10 of the Criminal Procedure Act, 1993 (the Act of 1993) and the potential for circumstantial evidence that had been adduced in the case to amount to corroboration, and what she should say to the jury in that regard.
105. Section 10 of the Act of 1993 provides:
106. Counsel for the respondent referred the court to the cases of The People (Director of Public Prosecutions) v Connolly [2003] 2 I.R. 1; The People (Director of Public Prosecutions) v O'Neill 1 JIC 2802 (Unreported, Court of Criminal Appeal, 8th January 2002; and The People (Director of Public Prosecutions) v Brazil [2003] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002); and he urged the Court to accept that certain circumstantial evidence relied upon by the respondent was capable of amounting to corroboration of the appellant’s confession, and to tell the jury that it was so capable although it would be a matter for the jury to assess whether or not it in fact corroborated it.
107. Counsel for the appellant argued in response that the circumstantial evidence that the respondent was relying upon was not in fact capable of amounting to corroboration as defined by the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, in the following terms:
“Corroboration in essence may be defined as independent evidence which implicates the accused in a material way in the offence charged.”
108. It was submitted that, in order to amount to corroboration, evidence sought to be relied upon has to be evidence, independent of the confession, which connects an accused with the crime. It was further submitted that the circumstantial evidence that the respondent was placing reliance on as being corroborative was dependent, to a greater or lesser extent, on the appellant’s admissions.
109. The circumstantial evidence in controversy was evidence that a car was used in the shooting of Mr Rossiter; the fact that not long after the shooting a burned out black Audi was found in a bog in the Nire Valley in Co Waterford giving rise to a suspicion that it was the vehicle used in the shooting; the fact that the appellant could be linked to a black Audi car, firstly through the CCTV footage from the Tesco garage, and secondly through evidence that prior to the shooting the appellant’s girlfriend was believed to have owned a Black Audi A4, and the fact that there had been an ostensible attempt to fabricate evidence that this car had been sold on prior to the shooting to a Mr John Byrnes, who could not be located, and who was believed not to exist.
110. The prosecution contended that this material was capable of providing corroboration in circumstances where, amongst the admissions made by the appellant in the course of being interviewed, were admissions that on the occasion in question he had had the use of, and had driven around in, a black Audi A4 motor car belonging to his girlfriend Pamela; that while in that car he had discharged a sawn off shotgun at Mr Rossiter; that he had subsequently burned the car in a mountainous area; and that contrary to previous assertions the Audi A4 had never in fact been sold, and that “I had people just believe that, that’s all”.
111. The appellant contended that such evidence was incapable of amounting to corroboration, relying on the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1.
112. There had been consideration during exchanges with counsel concerning whether s.10 of the Act of 1993 requires corroboration of the reliability of the confession or corroboration that the accused is implicated in the crime. In that regard, para 8.282 of McGrath on Evidence, (2nd Ed, 2014) (Round Hall Thompson Reuters: Dublin), was opened to the trial judge by prosecuting counsel. It succinctly captures the issue that was debated and in our view correctly states the law and bears reproduction in full:
8-282 The first question that arises in relation to s.10 is whether the warning it mandates is triggered by and relates to a lack of corroboration of the accused’s guilt of the offence or a lack of corroboration of the making of the confession. An argument can be made that the mischief that the section is directed at is the fabrication of confessions and, thus, the warning is directed towards circumstances where there is no corroboration of the making of the confession. This interpretation is supported by the wording used in subs. (1) which requires a warning when "evidence is given of a confession made ... and that evidence is not corroborated", i.e.,the evidence that has to be corroborated is the evidence of the making of the confession. Such a requirement would give a significant evidential impetus to the use of audiovisual technology to record interviews. However, the word “corroboration” is undoubtedly a term of art with a particular technical meaning, i.e. independent evidence that tends to implicate the accused in the commission of the offence. Thus, the use of that term indicates that the section is directed towards the risk of a miscarriage of justice that arises when the only evidence against an accused is that of a confession or inculpatory statement made by him. In any event, this question has been settled in favour of the latter view by the decisions of the Court of Criminal Appeal in People (DPP) v Connolly [ [2003] 2 I.R. 1] and People (DPP) v Brazil. [ [2002] WJSC-CCA 2983 (Unreported, Court of Criminal Appeal, 22nd March 2002)]
113. The trial judge obviously considered the issue with great care, taking the opportunity of availing of an intervening weekend before giving her ruling. Just before commencing her charge, and in the absence of the jury, she ruled:
JUDGE: Good morning. Now, in relation to the matters that we were discussing on last Friday as to the charge, it seems to me that this case stands or falls on the confession, that the desirability or what needs to be corroborated in a confession case is independent evidence of the truth and reliability of the confession, not of proof of guilt or of the commission of the crime, that the corroboration required by the section, having read the section and having considered Connolly, is that the the evidence that is sought, independent evidence that is sought, is independent evidence that tends to show the truth and reliability of the confession. Having come to that view, I do not I propose to limit myself to that aspect in relation to the confession and I propose to tell the jury that the circumstantial evidence is capable of providing independent confirmation of the truth and reliability of the confession. Because I have taken that view, I do not intend to rely on any potential lies told by the accused during his interviews. It seems to me that lies told during interviews are potentially corroborative of guilt of the offence and it would be confusing for the jury to have two addresses in relation to corroboration, one in relation to the confession and one in relation to guilt of the offence. I also take the views that since there isn't direct evidence of the commission of the offence, that lies lies don't lies told during interview would not necessarily corroborate the commission of the offence. So, I do not propose to direct the jury that if they find the that Mr Power lied in relation to the car, that that is corroborative of guilt, I am not going there. So, I will limit myself to the corroboration in relation to the confession and I hold that that corroboration is that the definition of corroboration of the confession is independent evidence that shows the truth or reliability of the confession.
114. Then in the course of her charge, the trial judge explained corroboration to the jury as being “independent evidence which confirms the truth and reliability of the confession” and went on to say “in this case, the circumstantial evidence, if you accept it, is capable of providing you with independent confirmation of the truth and reliability of material parts of the confession.”
115. The appellant submits that the trial Judge erred in failing to properly explain corroboration to the jury, in failing to distinguish corroboration as regards the reliability of the confession as opposed to the commission of the actual offence, in failing to instruct the jury that there was no corroboration of the actual commission of the offence and in failing to contextualise the items that might be capable of amounting to corroboration.
116. The trial judge’s phraseology, namely that corroboration is “independent evidence which confirms the truth and reliability of the confession”, is somewhat unorthodox, particularly viewed in the light of the passage just quoted from McGrath on Evidence, and also the ratio decidendi in Connolly, both of which were opened to her in extenso. However, in complete fairness to the trial judge, the likely source of her phraseology was an obiter dictum in Connolly where Hardiman J diffidently sought to suggest a possible approach to charging juries on s. 10 in future cases. His suggested model charge begins (at p.16 of the report) with the words:
"This case stands or falls on the confessions which the prosecution allege the accused made. Either you are satisfied beyond reasonable doubt that that confession is true and reliable, in which case you will convict, or you are not so satisfied, in which case you will acquit."
117. There is an express reference here to truth and reliability, but the important nuance is that Hardiman J was referring in these introductory remarks to the overall burden of proof to be discharged by the prosecution, and not confining his remarks to how corroborative evidence may operate vis à vis a confession. In the present case, the trial judge adopts those words almost verbatim, stating:
“Now, essentially, at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you're not so satisfied, in which case you acquit.”
118. However, the trial judge appears not to have appreciated the nuance referred to, and continued:
“Because of the experiences, particularly in the 1970s and 1980s in this country, where undoubtedly false confessions were extracted, sometimes quite brutally from people, the law was changed in 1993 and since then the law has been that when reliance is placed on confession evidence, juries should consider whether or not there is independent confirmation of the truth and reliability of the confession. That's it's called in law corroboration. So, if reliance is being placed on a confession, you must consider whether or not there's independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn't and if at the conclusion of your analysis of the evidence you find there's no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you're not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you're still perfectly entitled to convict as long as you are satisfied of the truth of the accused's confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it's absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent -- what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
119. In contrast, Hardiman J’s suggested charge had continued:
"The law requires me to point out to you that there is no corroboration of the evidence of the confession. Corroboration means independent confirmation. In a case like this, it would mean some evidence independent of that of the gardaí who say they heard the accused confess, which you could fairly and reasonably regard as confirming the truth of the confession. There might have been forensic evidence placing the accused in the injured party's house, which would certainly confirm the truth of the alleged confession. He might have been found in possession of the stolen property or he might have been identified by some person as the robber. On the other hand, there are cases which, of their nature, make it hard to find corroboration. You must consider what sort of case this is from the point of view of corroboration. When you are considering whether you can feel sure that the statement is true and reliable beyond reasonable doubt, you must ask yourselves whether the absence of any corroboration or independent confirmation of the statement should reduce your trust in it to the point where you are not confident of its truth beyond reasonable doubt. Since the earliest times, people faced with important decisions have sought to make their task easier by looking for independent confirmation of one view or another. It is very natural and prudent to do so, and very comforting if you find it. But if it is absent, the decision still has to be made. If it is absent where you would expect to find it, that fact in itself may affect the decision.
I am obliged to give you this warning because of a law passed by the Oireachtas in 1993, which says that I must advise you to give due regard to the absence of corroboration. It is essential that you do so. You must also bear in mind that, despite the absence of corroboration, you are perfectly entitled to convict if you are indeed satisfied of the truth of the accused's confession beyond reasonable doubt. The law does not say that you cannot convict without corroboration, merely that you should specifically consider the absence of corroboration and what weight, if any, you should give to this factor. Once you do this, your decision is a matter for your own good sense and conscience."
120. It is certainly not the case that corroboration in the context of the requirement under s.10 of the Act of 1993 relates solely to the reliability of the confession – Connolly clearly establishes that. However, the trial judge neither suggested that corroboration in this context of s. 10 of the Act of 1993 should relate solely to the reliability of the confession, nor that it would be sufficient if it related to either the truth or reliability of the confession. Rather, she framed her definition in terms of there being two conjunctive requirements, namely that corroborative evidence should confirm both the truth and the reliability of the confession.
121. If a statement of admission, or any part of a statement containing an admission, is “true” then it implicates the accused in having committed the offence. To the extent that the trial judge charged the jury that this was a requirement she was correct. Whether she was also correct to tell the jury that for evidence to be corroborative it also had to confirm the reliability of the confession is doubtful. It certainly does not follow that simply because a statement is true that it is reliable. For example, an admission made by an accused while he is in a state of profound intoxication might well in fact be true, but it might not be regarded by a reasonable fact finder as being capable of being safely relied upon. However, we do not believe that it is the law that for evidence to be corroborative that it must tend to confirm both the truth and the reliability of a confession. If it does both, well and good. However, it must at least tend to confirm the truth of the confession. To suggest this is not to say that a jury need not be concerned about reliability. They must of course be concerned about reliability but not in considering whether evidence is or is not corroborative. Any concerns they may have in regard to reliability fall to be separately considered in the context of determining the weight, if any, to be attached to confessional evidence, notwithstanding that such confessional evidence may be corroborated by evidence suggesting it is true, in their deliberations on the ultimate issue of the whether the accused be guilty or not guilty of the offence with which he is charged.
122. However, to the extent that the trial judge in the present case, rightly or wrongly, instructed the jury that corroborative evidence should confirm both the truth and the reliability of a confession, this could only have inured to the advantage of the accused in the sense of making it more onerous for the prosecution to satisfy their burden. We consider that in the circumstances of the case no harm was therefore done by the judge’s instruction to the jury, even if unorthodox in formulation and not entirely correct.
123. For the avoidance of doubt in future cases, a correct understanding of corroboration, in the s.10 context and in other contexts, is well set out by McKechnie J in the case of The People (Director of Public Prosecutions) v Murphy [2013] IECCA 1, where he stated:
68. Corroboration in essence may be defined as independent evidence which implicates the accused, in a material way, in the offence charged. Many years ago it was authoritatively articulated by Lord Reading C.J. in the English Court of Criminal Appeal in R. v. Baskerville [1916] 2 K.B. 658 at p. 667 where he stated:
“… evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”
69. This dicta (sic) has been approved and applied by the Irish Courts on numerous occasions: see for example People (A.G.) v Phelan (1950) 1 Frewen 98 at p. 99 and more recently in People (D.P.P.) v. P.C. [2002] 2 I.R. 285, where this Court, confirmed (at p. 300) the following definition of “corroboration” as:
“… independent testimony or evidence which affects the defendant by connecting or tending to connect him to the crimes alleged. It is evidence which implicates him, which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it” (pp. 297 to 298).
The reference to evidence being independent means independent of the evidence in respect of which corroboration is thought necessary. Such evidence also of course, must always be credible.
70. Thus, whilst evidence, in order to be corroborative, “does not have to directly prove that the offence was committed” (People (D.P.P.) v. Meehan [2006] 3 IR 468 at 491, para. 56), nor does it have to “corroborate the whole of the evidence of the witness who requires corroboration” (People (D.P.P.) v. Murphy [2005] 2 IR 125 at 159, para. 103, citing Richard May, Criminal Evidence (2nd ed.), p. 330), nonetheless it must be some independent evidence which implicates the accused in the offence charged in some “material particular”.
124. It is further complained that the trial judge failed to instruct the jury that there was no corroboration of the actual commission of the alleged offences, and failed to contextualise the items that might be capable of amounting to corroboration. We reject the first proposition without hesitation. The trial judge was clearly, and correctly in our view, of the belief that there was evidence capable of amounting to corroboration, though it was a matter for the jury as to whether it in fact did so. The jury were told that:
“…if reliance is being placed on a confession, you must consider whether or not there's independent evidence which confirms the truth and reliability of the confession and independent confirmation is evidence that comes from sources other than the gardaí. If there isn't and if at the conclusion of your analysis of the evidence you find there's no independent confirmation of the truth and reliability of the confession, you must ask yourselves then whether the absence of independent confirmation diminishes your trust in the confession to the point where you're not confident of its truth beyond reasonable doubt. You must bear in mind, however, that even if there is no Independent confirmation, you're still perfectly entitled to convict as long as you are satisfied of the truth of the accused's confession beyond reasonable doubt. The law does not say that you cannot convict without independent confirmation of the truth and reliability of a confession, it merely states you must consider its absence if you find that it's absent and what weight, if any, you should give to the factor and once do you that you can have considered whether or not there is corroboration and if its absent -- what weight you should give to that absence, whether that absence diminishes your confidence in the truth of the confession, the decision is yours and is a matter for you.”
125. Save for the issue already dealt with concerning the definition of corroboration, this was otherwise an entirely correct and appropriate instruction. In addition, the jury were told that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you're not so satisfied, in which case you acquit.”
126. As regards contextualisation we have considered the transcript and are satisfied that the trial judge very comprehensively reviewed the evidence. The trial judge dealt with the evidence in four blocks or groups, namely direct evidence concerning the events of the night, direct evidence concerning the aftermath of the shooting, circumstantial evidence about events surrounding the shooting incident, and Garda evidence including the confessional material. The section of her charge devoted to circumstantial evidence runs to eleven pages of transcript and was detailed and comprehensive.
127. While she did not specifically isolate any piece or pieces of circumstantial evidence as being potentially corroborative and identify it/them as such, and it would have been better if she had done so, we nevertheless agree with the submission made by counsel for the respondent that in the circumstances of this case the jury would have had no difficulty in applying the generic instructions given to them by the trial judge in considering whether any individual piece of circumstantial evidence, or pieces of such evidence considered cumulatively, was or were in fact corroborative.
128. In the circumstances we reject Grounds of Appeal Nos. (vii) and (viii).
Ground of Appeal No. (ix) – repeated instruction to the jury that suggestions by counsel do not amount to evidence
129. In closing his case, counsel for the respondent told the jury in clear terms that “barristers do not give evidence.” In charging the jury the trial judge told the jury several times that suggestions by counsel do not amount to evidence. The appellant submits that this emphasised the failure of the defence to call any evidence thereby undermining the appellant’s presumption of innocence and right to silence.
130. We have no hesitation in dismissing this ground of appeal in limine. The trial judge’s instruction in that regard direction was correct in law and entirely appropriate. The jury were required to decide the case on the evidence and the evidence alone.
Ground of Appeal No. (x) – failure to instruct the jury that the rights of the accused take precedence over the rights of society
131. The appellant complains that trial judge told the jury in the introduction to her charge, that:
“…when crime is committed, even though there's one person who or two people perhaps who are very directly affected, it is an offence against the whole of society. It isn't just the person directly affected and it's in society's interest that crime be detected, investigated and prosecuted and so in this court, which is the Central Criminal Court, a branch of the High Court, every case is brought in the name of the people of Ireland.”
132. During requisitions, counsel for the appellant requested that the court highlight to the jury that if there was a conflict between the right of society to prosecute crime and the right of an accused person to have a fair trial, that an accused’s rights take precedence in circumstances where a fair trial is at all times paramount to retribution or obtaining a conviction.
133. It is complained that the trial judge did not re-visit the issue and that in failing to do so the trial judge erred.
134. The trial judge’s remarks seem to this Court to have been entirely apposite and appropriate, and we do not consider that they were objectionable in any way. Her remarks are being taken entirely out of context. The words complained of were spoken in the course of an explanation as to why the proceedings were being brought in the name of the People of Ireland. Nothing that the trial judge said, when considered in context, would have served to suggest to the jury that the right to a fair was to be subordinated to, or even ranked equally with, the society’s interest in the detection, investigation and prosecution of crime. We again would dismiss this ground of appeal in limine.
Ground (xi) – Evidence not in Dispute
135. The trial judge instructed the jury that as the arrest, charge and detention were not in dispute the members of the jury would not have to “trouble [them]selves with that”. Counsel for the appellant requisitioned her on this relying on the case of The People (Director of Public Prosecutions) v. DO’T [2003] 4 IR 286, submitting that her comments implied that where a matter was not in dispute the prosecution was relieved of its burden. The appellant contends that the trial judge did not revisit the issue and was in error in not doing so.
136. As counsel for the respondent has pointed out in reply, the trial judge did in fact offer, in effect, to revisit the matter in the course of the following exchange, and there was in fact subsequently a re-visitation albeit not in the extensive terms that counsel for the appellant had sought:
JUDGE: Well, I did before charging, Mr McGinn, suggest that I wasn't going to do continuity evidence and I wasn't going to do things that weren't in dispute basically and I took it that that was agreed but do you want me to restate …
MR McGINN: No, I didn't need the Court to remind the jury of those aspects of the case, but nevertheless the concern I have is that the jury may get the impression, as a result of what the Court said about the arrest, that if something hasn't expressly been disputed or if there's no difference, that therefore that there is some lifting of the burden on the prosecution and that the jury need to be told, in my submission, that each and every aspect of the case has to be proved by the prosecution, even if that aspect wasn't contested or wasn't challenged because it may be that for another reason the jury aren't satisfied about it.
[Following other requisitions:]
JUDGE: Very well. In relation to I will recharge the jury in relation to the presumption of innocence in the line of that set out in the People DPP v. OT …
137. At the end of requisitions the jury was brought back and the trial judge re-addressed them, inter alia, in the following terms:
“JUDGE: Thank you. Now, ladies and gentlemen, when you retire to consider your verdict, counsel get to tell me where I went wrong in my charge to you. They've asked me to say certain matters to you and I propose to do so. First of all, I perhaps did not put sufficient emphasis to you on the issue or on the right of the presumption of innocence. That is a fundamental right in our criminal law. It is a constitutional right to be presumed innocent and it is it's common to common law countries throughout the world that any accused person is presumed to be innocent. What follows from that presumption of innocence, that fundamental right, is the burden on the State, on the prosecution, to prove the offence? What arises from the presumption of innocence is that the burden is always on the prosecution to prove the offence and every element of it and to negative any defences which may appear to arise and they must do that, as I think I told you, that that proof of each element of the offence must be proved beyond reasonable doubt and so the as I say, I may not have put sufficient emphasis on it to you because I listed it with other rights that the accused has but it is a standalone fundamental constitutional right of every accused person to be presumed innocent and it follows from that that it is -- the burden is always on the State to prove the case against the accused and to prove it beyond reasonable doubt.”
138. We are satisfied that the re-charge was adequate to allay any concern that, by virtue of the trial judge’s comments concerning the uncontroversial evidence, the jury might have been under the impression that where a matter was not in dispute the prosecution was relieved of its burden. The re-charge made it abundantly clear that proof of each element of the offence must be beyond reasonable doubt and that the burden of doing so rests at all times on the state
139. In the circumstances we dismiss Ground of Appeal No. (xi)
Ground (xii) – implicit indication that evidence of witnesses tendered by prosecution carried less weight than those directly examined
140. In her charge, the trial Judge stated that “[y]ou saw Mr Sammon tender a number of witnesses. He didn’t have any questions to ask them but they were offered for cross-examination.” The appellant submits that these comments appear to categorise the evidence of such witnesses differently to that of the Garda witnesses.
141. Counsel for the appellant requisitioned the court to “expressly tell the jury that those witnesses were prosecution witnesses, that they were called by the prosecution as being witnesses of truth and that their evidence was unchallenged and that given that the prosecution called that evidence, albeit that it was elicited by the defence, that the jury can rely on that evidence as being accurate if there is no challenge to it.”
142. The trial judge refused this requisition, stating:
“In relation to Mr Power senior and Ms Fullop, I don't propose to tell the jury that they were called as witnesses of truth. No other witness was called as that they were prosecution witnesses. I think I have summarised their evidence fairly to the jury and to put an additional gloss on it that you seek Mr McGinn I think is not appropriate. The evidence of every witness has to be considered by the jury and assessed by the jury and to put an extra gloss that somehow this is of a higher class of evidence than other evidence that they heard is not, it seems to me, appropriate.”
143. We are satisfied that the trial judge’s reasons for not acceding to the requisition were cogent and rational and her ruling was one within her legitimate discretion. In any event, we are not persuaded that the concern raised by counsel for the appellant was a justified one. There was nothing in the trial judge’s remarks to suggest that the evidence of tendered witnesses elicited in cross-examination should carry less weight than those of witnesses who were not tendered and who were examined both in chief and cross-examined. The trial judge was merely stating the factual position that prosecuting counsel had had no questions for those witnesses and that they had simply been cross-examined by the defence.
144. We therefore also reject Ground of Appeal No. (xii)
Ground of Appeal No. (xiii) – failure to expressly direct the jury that the only evidence connecting the appellant to the crime was his confession
145. During requisitions, counsel for the appellant asked the trial Judge to remind the jury that the only evidence connecting the appellant to the crime was the confession, notwithstanding evidence that might be able to corroborate the confession.
146. However, this requisition was entirely misconceived as the trial Judge did in fact state in the course of her charge that “at the end of the day, this case stands or falls on the confession which the prosecution alleges the accused man, Maurice Power, made. Either you are satisfied beyond reasonable doubt that the confession is true and reliable, in which case you convict, or you're not so satisfied, in which case you acquit.” The proposition contended for could not have been put in clearer terms.
147. We therefore also dismiss Ground of Appeal No. (xiii) in limine.
Grounds of Appeal Nos. (xiv) to (xvi) – complaints re the trial judge’s charge and instructions re suggestions of Garda impropriety
148. During the course of requisitions, it was acknowledged by defence counsel that the trial judge had, in the course of her charge, indicated that the prosecution’s witnesses had for the most part accepted that it was not best practice for interviewing members of An Garda Siochána to have contact with an accused person or a detainee off camera, and also that the court had gone on to explain that the reason it was not best practice was that “it can lead to suggestions being made or questions being asked about what’s happening in – during cigarette breaks”. However, it was submitted that the trial judge should have gone further than that and explained to the jury that lack of compliance with the Custody Regulations not only allows suggestions of impropriety to be made but that it also “would allow impropriety to happen and that that is why the video recording regulations were brought in, to protect not only the guards from suggestions, but also to protect detainees from impropriety itself”.
149. The trial judge decided that her charge in this regard had been adequate and was not disposed to re-visit the issue with the jury. This was in circumstances where there had been no evidence adduced of any impropriety. There certainly had been suggestions of impropriety put to Garda witnesses, but these were entirely denied and the accused had elected not to give evidence. It was in that context that the trial judge stated to the jury in the course of her charge:
“Now, in the course of … cross examination, there were a number of serious suggestions put by counsel to the gardaí and suggestions of impropriety, suggestions of threats, that Mrs Fullop would lose her job and that his partner would lose her child. Suggestions as I told you at the outset are not evidence. Suggestions made by counsel are not evidence and that is not evidence in this case.”
150. We are satisfied that the trial judge’s decision not to revisit the matter with the jury was justifiable in the circumstances of there being no evidence of actual impropriety by Garda interviewers during off-camera contacts with the appellant. We therefore reject this complaint.
151. It was further complained that the trial judge “erred in failing expressly to itemise to the jury the evidential support for suggestions of impropriety by the interviewing Gardaí.”
152. The appellant submits that this evidential support was to be found in the fact that interviewing members supervised cigarette breaks on numerous occasions coincidental to the interviews; that excuses proffered in relation to man power issues and convenience did not appear to stand up; and that there was contradictory evidence given by different Gardaí as to the reasons why best practice was not adhered to.
153. The trial Judge refused to readdress the jury on these matters.
154. We have reviewed the transcript and are satisfied that the trial judge reviewed very comprehensively the evidence given both in chief, and in cross-examination, by witnesses relevant to this ground of appeal. It is true that she did not, to use counsel’s phrase, “itemise” or list out to the jury matters ultimately relied upon by the defence as supposedly providing evidential support for suggestions of impropriety. However, it again requires to be re-iterated that there simply was no evidence of impropriety, merely suggestions thereof, and counsel’s suggestions no matter how frequently re-iterated are not evidence. We are satisfied that the trial judge’s decision not to re-charge the jury on foot of this requisition gave rise to no unfairness and it was decision that was within the legitimate range of her discretion and that she was entitled to make.
155. Yet another complaint relates to the judge’s unwillingness to accede to a further requisition:
MR McGINN: I would ask the judge sorry, I'd ask the Court to direct the jury that if they have a reasonable doubt about the propriety of the cigarette breaks for the guards, then they cannot be satisfied beyond a reasonable doubt of the reliability of the confession.
JUDGE: No, because even if there was impropriety, they could still accept the reliability of the confession. The test is whether it's voluntary and I think it it's over stating if I said that I could also say that if even if you thought the guards acted inappropriately, but still thought the confession was voluntary, you can act on it, so by I won't do either I think is the fairer course.
MR McGINN: I'm in the Court's hands.
156. The respondent has submitted that the trial judge’s approach was sensible, was correct in law having regard to The People (Director of Public Prosecutions) v Quilligan (No 3) [1993] 2 I.R. 305, and an appropriate decision rendered in the legitimate exercise of her discretion. We agree.
157. We are therefore not disposed to uphold Grounds of Appeal Nos. (xiv) to (xvi).
Ground (xvii) – allowing the jury to view CCTV footage in open court in the appellant’s presence
158. During deliberations the jury requested to view CCTV footage taken from the Tesco petrol station and also recordings of certain interviews. Counsel for the appellant expressed dissatisfaction that an edited disc had not been prepared by the respondent in anticipation of such a request that would have allowed the jury to consider it alone in the jury room. Alternative arrangements were not possible however. Counsel further expressed particular concern at the fact that the jurors were effectively being invited to compare a person visible in the footage to the appellant sitting opposite them at a time when the evidence had finished. This, it was submitted, unfairly prejudiced the appellant, allowed an issue to be re-opened after all the evidence had finished and allowed the jury’s deliberations to be impinged upon.
159. Counsel for the respondent pointed out that the jury had already been observing the appellant for 21 days and were well familiar with his appearance. Moreover, the video from the Tesco Petrol station had already been shown during the prosecution case, with the appellant present in court, and without objection, so the jury had already had an opportunity to make the suggested comparison about which concern was now being expressed. There was nothing wrong with the jury making such a comparison, if indeed they did so. The essence of real evidence is that it is evidence that the members of a jury or other fact finding tribunal can examine and assess for themselves using one or more of the five primary human senses, namely: sight, hearing, touch, taste, and smell.
160. We have considered the position and are satisfied that the procedure was not unfair to the appellant in circumstances where the same procedure had been followed without objection during the prosecution case.
161. We do not consider that the jury’s deliberations were impinged upon in any way. What was done was done at the jury’s express request. A jury is entitled in the course of its deliberations to ask to see again any exhibit that was placed in evidence. There was no new evidence, merely a further viewing of CCTV footage, which was real evidence, already adduced and exhibited in the course of the trial.
162. We therefore dismiss Ground of Appeal No. (xvii)
Conclusion:
163. We are satisfied that the appellant’s conviction is safe and that his trial was satisfactory. In circumstances where this Court has not seen fit to uphold any of the appellant’s seventeen grounds of appeal, we dismiss the appeal against conviction
