Director of Public Prosecutions v Roche, Roche, & Freeman [2019] IECA 317 (19 December 2019)

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Judgment of the Court delivered on the 19th day of December 2019 by Ms. Justice

1. The appellants seek to appeal against conviction. Following a nine-week trial, the

appellants were convicted before Limerick Circuit Criminal Court on the 27th July 2017.

2. Patrick Roche was convicted of two counts of aggravated burglary contrary to section 13

of the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997; and dishonest handling contrary to section 17 of the Criminal Justice (Theft and

Fraud Offences) Act 2001. He received a sentence of 17 years’ imprisonment with three

3. Philip Roche was convicted of two counts of aggravated burglary contrary to section 13 of

the Criminal Justice (Theft and Fraud Offences) Act 2001; eight counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997; and possession of stolen property contrary to section 18 of the Criminal Justice

(Theft and Fraud Offences) Act 2001. He received a sentence of 15 years’ imprisonment

4. Alan Freeman was convicted of one count of aggravated burglary contrary to section 13 of

the Criminal Justice (Theft and Fraud Offences) Act 2001 and five counts of false

imprisonment contrary to section 15 of the Non Fatal Offences Against the Person Act

1997. He received a sentence of 14 years’ imprisonment with three years suspended.

5. The offences in question relate to two separate incidents of aggravated burglary in Co.

Limerick. The first aggravated burglary was committed at Sunville House (the Garvey

home) and involved all three appellants and the second aggravated burglary took place at

the home of the Creeds and involved Patrick and Philip Roche only.

6. On the 13th April 2012, a sky-blue BMW was stolen from a location in Cappaghmore, Co.

Limerick. This vehicle was then used in the aggravated burglary at Sunville House on the

16th April 2012. On the night in question, Gerard and Anne Garvey were at home with

their four children who were aged between 14-16 at the time. At 9:40pm, four men

gained entry into Sunville House, breaking the glass of the patio door. The men were

armed with various implements including a sawn-off shotgun, sledgehammer and a

baseball bat. The men split up inside the house in order to take control of the occupants.

Two of the men went upstairs where three of the children were situated along with Anne

Garvey. Graham Garvey, who was 14 at the time, was struck by one of the men. At the

same time, Gerard Garvey was kept downstairs where he was restrained lying on his

stomach with handcuffs. He was assaulted a number of times. Evidence was given that

threats to the effect of “We’ll blow your head off. We’ll kill your daughter. We’ll take away

your kids. You will never see them again” were made against Mr Garvey in the presence

of his daughter Gillian who was 14 at the time. At one point, a shotgun was pressed

against Mr Garvey’s forehead. Anne Garvey was threatened a number of times in front

of her children. She then led the men to a safe in the bedroom from which she removed a

white envelope containing 3000 USD and 2000 in sterling which she gave to the men.

Once the men received the money, they restrained the rest of the family members with

7. Approximately an hour after the incident at Sunville House, two Gardaí on mobile patrol

became suspicious of two vehicles which appeared be driving in convoy. The Gardaí

followed the vehicles, one of the vehicles got away but the other vehicle was stopped; a

BMW registration number 08 C 40057 and one of the occupants of that car was identified

to be Patrick Roche. He was the front seat passenger. The car was searched and various

items including a black balaclava, rubber gloves, handcuffs and a screwdriver were found.

When Patrick Roche was searched, it transpired that he was wearing three pairs of pants

and two pairs of socks. Patrick Roche was arrested and charged with an offence contrary

to s.15(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and was released

on bail. On the 17th April 2012, he was arrested by Detective Garda O’Connell on

suspicion of committing an offence contrary to s.73 of the Criminal Justice Act 2006,

namely, on suspicion of a serious offence, for the benefit of, or direction of, or association

with a criminal organisation, to wit an aggravated burglary at Sunville House, Co.

Limerick. He was detained and his clothing was seized and on later analysis shards of

glass were found therein. Samples of these were sent for forensic analyses and were

found to offer moderate support for the view that Patrick Roche had contact with the patio

8. The black balaclava was found in the front passenger side door, as were the rubber gloves

and the screwdriver. 1850 USD were found in the glove compartment and the handcuffs

and handcuff keys were found in the pocket of a jacket. Finally, a ski mask described as

9. The evidence disclosed that the handcuffs found in the BMW were similar to those used to

restrain Mr Garvey and the keys found opened the handcuffs found in the vehicle and also

10. The second incident took place on the 31st May 2012 in a house located in relatively close

proximity to Sunville House. This house was occupied by three siblings, William, Nora and

Chrissie Creed who were aged 74, 68, and 72 respectively at the time. Shortly after 9:30

pm on the night in question, Nora and Chrissie were in the parlour when two men broke

into the house, roaring and shouting. William, who had gone to bed, heard the commotion

and went to the front door where he was then knocked to the ground, pulled along the

floor and punched repeatedly in the head and chest. The perpetrators were armed with

some form of handle, as well as a butcher knife and a screwdriver. William was punched

repeatedly in the face and stabbed in the head several times with a screwdriver. One of

the perpetrators shouted that he was on drugs and he could get very violent and

threatened to stab him and cut his throat. At one point, one of the perpetrators cut

William’s hand. Meanwhile, Chrissie and Nora were also subject to serious violence as

they were knocked to the ground and punched. All three were tied up with belts and cable

ties and told that they would be killed if they did not co-operate and tell them where their

money was. After a period of time, the raiders were told where the money was to be

found. They located and stole €5,000 from the house and left shortly thereafter. The men

fled through the fields and were collected by a third man. The scene was subject to a

forensic examination and ten days after the incident, Nora Creed, contacted the Gardaí

and gave Garda Vincent Donnellan a fingertip of the glove which she said she had found

in the rubbish bin. This was potentially significant as her sister Chrissie had pulled the tip

11. The bill of indictment originally charged 34 separate counts; five of these charges were

severed from the indictment. Some of the charges related to another aggravated

burglary and false imprisonment at the Cruise family home on 13th April 2012. The

counts referable to that incident were severed from the indictment. In the course of that

burglary, a sky-blue BMW M5, registration number 00 WW 1000 was stolen. This

12. Mr William Gammell gave evidence that sometime around March 2012, he was introduced

to Alan Freeman by John Cahill and asked to store a white Mitsubishi Lancer for Alan

Freeman. It seems that this vehicle was connected to the Cruise aggravated burglary.

Subsequently, he was again asked to store a vehicle for Alan Freeman, this time a sky-

blue BMW M5; 00WW1000. Mr Gammell gave evidence that some days later, he was

contacted by John Cahill, who said he was in trouble and following which he met with

John Cahill and Philip Roche outside Cappaghmore where the sky-blue BMW was parked

in an old shed and John Cahill needed a lift for himself and Philip Roche. This was

following the Garvey aggravated burglary and Patrick Roche’s arrest while a passenger in

a BMW 08C40057. That car was owned by Christopher Stokes, who was the driver on

13. At some later stage, Mr Gammell said he received a phone call from Patrick Roche who

told him that he had a Volkswagen Touareg Jeep 2006 KY 2112 for him. This jeep

14. Finally, Mr Gammell was contacted to meet Alan Freeman, Philip and Patrick Roche at the

Horse and Jockey pub, where he collected a Toyota Landcruiser Jeep; registration

number 06 KE 8015 which transpired to have been stolen. This was the subject of counts

8 and 34 on the indictment; both handling charges. Count 8 concerned Patrick Roche; he

was acquitted of this charge and count 34 concerned Alan Freeman; this count was

15. John Cahill was called as a witness in the trial. He contacted the Gardaí while serving a

prison sentence and made a statement regarding his role in the aggravated burglary at

the Garvey home on 16th April 2012. He gave evidence about his role in that aggravated

burglary and said that he was present in the blue BMW M5 waiting to collect the raiders

16. Mr John Cahill gave evidence that on the date of the Garvey aggravated burglary, 16th

April 2012, he was waiting in this vehicle for the raiders. They travelled in the blue BMW

until just outside Cullen village when Patrick Roche and Christopher Stokes got out of the

vehicle and into another BMW; registration number 08 C 40057. John Cahill said that Alan

Freeman also got out of the car and into a dark Volkswagen Sirocco. The BMW 08 C

40057 was the vehicle which was stopped by the Gardaí; driven by Christopher Stokes

17. Thereafter, William Gammell received a phone call from John Cahill stating that he

needed a lift, as a result of which Mr Gammell collected Mr Cahill and Philip Roche outside

Cappaghmore, at an area known as Kennedys Woods. He testified that Mr Cahill said that

Patrick Roche had been arrested and that they had burgled Sunville House. He said that

Philip Roche was shouting that they needed to hide a black bag containing items used in

the burglary. Mr Gammell drove towards Doon, where he stopped the car and John Cahill

and Philip Roche jumped out and hid the bag. He then dropped both men to John Cahill’s

home. The next day, Mr Gammell collected the blue BMW and drove behind John Cahill,

eventually meeting him in a wooded area where John Cahill set the car alight. A witness,

Patrick Ryan, testified that he saw a jeep driving behind a blue BMW. The blue BMW was

subsequently discovered on fire. A few days later Mr Ryan saw the same jeep being

18. The accomplice to the Creed burglary, William Gammell, said that on the 31st May 2012

he collected Patrick and Philip Roche from Cappawhite in County Tipperary driving a

Volkswagen Touareg, registration number 06KY2112, and dropped them to Pallasgreen

County Limerick, close to the home of the Creed family at approximately 9 pm. He gave

evidence that the men were carrying a brown Dunnes Stores bag, it seems that Mr

Gammell then separated from the two men and some 20 minutes later he was contacted

to return and collect them and he did so, on this occasion, he said the men changed

clothes and footwear, placing their outer clothing into the Dunnes Stores bag.

Significantly, he described Patrick Roche saying that one of the occupiers of the house

had pulled a finger from his glove and he, (Mr Gammell) noticed that one of the fingers

from Mr Roche’s glove was missing. When Patrick Roche got out of the jeep, he told Mr

Gammell to burn the Dunnes Stores bag. Instead Mr Gammell stopped near a railway

bridge on his way to Monard and hid the bag behind a wall. He subsequently brought the

Gardaí to this area; the bag was found which contained various items of clothing which

were examined, and DNA was found on the mouth and nose area of a balaclava relevant

to Patrick Roche and a black woollen glove relevant to Philip Roche.

19. The appellants put forward a combined total of 34 grounds of appeal, as outlined in their

notices of appeal. A number of the grounds of appeal overlap so they will firstly be

considered together below, following which the singular grounds of appeal will be

Ground 9 of Philip Roche and ground 14 of Patrick Roche-Application for a separate

The Learned Trial Judge erred in law in failing to order a separate trial following matters

prejudicial to the appellant contained in Alan Freeman's memorandum of interview being

20. During the trial, a memorandum of interview of Alan Freeman was read into the record in

the presence of the jury. The memorandum contained a number of statements by Mr

Freeman alluding to his co-accused. Patrick Roche and Philip Roche take issue with the

Answer: “He’s my wife’s cousin, I know of him. As far as I know he is charged and

Answer: “Packie Roche is my wife’s brother and the family heard about it.”

Question: “Would it be fair to say you and Packie are friendly?”

Answer: “No, it would not be fair to say we are friendly. There are serious

allegations against that man, and he should have no friends, so I’m not pally with

The impugned portion of the memorandum of interview goes on to say:

“Question: Why do you think you are being linked to Packie Roche?"

Answer: "Because he's my wife's brother, I've nothing to do with them, they go

Question: “We’re investigating a serious crime and your name has come linked into

it?” Answer: “I had not one thing to do with it, I’m a family man myself.”.

Answer: “They’re dangerous people, that Gammell fellow is charged with tying up

21. Following this, an application for a separate trial on behalf of Patrick Roche was made on

the basis that these remarks were extremely prejudicial; specific reliance was placed on

“Why are you being linked to Packie Roche, namely; “I have nothing to do with

22. Mr Lynam BL, counsel for Patrick Roche, argued that the material introduced by virtue of

the memorandum of interview prejudiced his client to such a degree that the only remedy

was a separate trial. Mr Lynam, in making the application for separate trials, indicated a

preference that the trial judge would not advise the jury to disregard the remarks in the

memorandum of interview as to do so, would in effect cause further prejudice. He

23. Counsel for Philip Roche then joined the application seeking a separate trial for his client

on the basis that he was tarnished with the same brush and had suffered the same

24. The trial judge refused this application, stating that he was not satisfied that the content

of the memorandum of interview caused irreparable prejudice, moreover, that he would

hear suggestions as to how the matter could be addressed, if at all.

25. The appellants submit that this evidence permitted the jury to infer that the appellants

had a propensity for criminal behaviour and therefore was highly prejudicial.

26. The appellants further argue that the trial judge failed to address the jury in relation to

this issue and direct that the memorandum of interview of Alan Freeman was not

evidence against the appellant. In those circumstances, it is submitted that a failure to

order a separate trial jeopardised the appellants’ right to a fair trial.

27. The respondent submits that firstly, the contested part of the interview makes no

reference to Philip Roche and therefore his complaint in this regard is without substance.

In relation to Patrick Roche, the respondent submits that the prejudicial value of the

evidence was inconsequential in the context of the trial: the printed version of the

memorandum given to the jury was edited to exclude the evidence in question and the

contentious remarks formed part of general antipathy towards the appellant by Mr.

Freeman and can be understood in that context. The respondent submits that such

prejudicial comments may arise in a joint trial, but this does not mean that a separate

trial is required, and in this case the trial judge dealt with the matter adequately in his

charge. The respondent accepts that the trial judge did not expressly deal with the

evidence in question, but it is submitted that it was sufficient to charge the jury that the

28. The respondent submits that the general rule in discharging a jury, as considered in The

People (DPP) v. Coughlan Ryan [2017] IECA 108, emphasises the robustness of juries to

consider the evidence in light of judicial warnings. As such, the trial judge exercised his

29. Patrick and Philip Roche both applied for separate trials on the basis of prejudice to them

arising from the content of Alan Freeman’s interview while in Garda custody. If the

application had been successful, the trial would have proceeded, at the time, solely in

30. What must be said at the outset is that an unusual approach was taken in that the

application was made on day 19 of the trial. Undoubtedly the parties had the book of

evidence and disclosure in advance of the trial, yet the application was made at a very

late stage in the proceedings. Ordinarily, if a party has a concern regarding memoranda

of interview of a co-accused, the party would either ensure the material was not adduced

on the basis that its prejudicial effect outweighed the probative value as against the

person whose interview it is, or an application is made for separate trials. To make an

application for separate trials on the 19th day of a trial, when the concern must have

31. As a general principle, where two or more accused are charged with the same offence, or

with separate offences arising from the same incident, they will be tried together, unless

to do so would give rise to an injustice. As stated by Sullivan P. in Attorney General v.

“…the trial judge may direct that they be separately tried if, in his opinion, separate

trials are desirable in the interests of justice. The trial judge has a discretion in the

matter which must be exercised judicially. The exercise of such discretion may be

reviewed by this Court, and a re-trial directed, if we are satisfied that a refusal to

direct separate trials has resulted in a miscarriage of justice.”

32. In order to properly exercise his or her discretion, a trial judge must assess the evidence

before him or her. Separate trials will not necessarily be ordered in circumstances where

the content of a memorandum of interview of one accused implicates another accused. It

33. The first observation we make concerns the appellant Philip Roche. The application to

sever the indictment was initially made by counsel on behalf of Patrick Roche. Insofar as

complaint was made on behalf of Philip Roche, such was made on the basis that the word

“they” was used by Alan Freeman in the course of interview, thereby tarnishing Philip

34. As we have observed, the trial judge must exercise his or her discretion judicially, the

exercise of which may serve to take either the prosecution or the accused from the risk of

prejudice should parties be tried together. It is the long-standing position that mere

embarrassment on the part of an accused will not be sufficient to sever an indictment.

More than that is required. The central issue is that of the interests of justice, this Court

will only intervene if the refusal of an application for separate trials has resulted in a

35. The interests of justice ordinarily dictate that persons charged with the same offences or

offences arising from the same incident ought to be tried together. Leaving aside the fact

that joint trials save time and expense and enable juries to be furnished with the

complete picture, should each individual be tried separately, each would then be able to

blame the other for the offending conduct. This cannot be said to be in the interests of

justice. However, should a joint trial result in an unfair trial, this cannot be said to be in

the interests of justice. Therefore, every application for the severance of an indictment

must be treated with care by the trial judge. We have considered the impugned portion of

the memorandum of interview and cannot see that the trial judge exercised his discretion

in a manner which resulted in an unfair trial as regards Philip Roche. The application

made on his behalf was tenuous indeed and could not be said to have caused him the

type of prejudice which would give rise to the necessity for a separate trial or indeed to

36. As regards Patrick Roche, the application was moved on the basis that the words

contained in the memorandum of interview caused him irredeemable prejudice which

could only be rectified by a separate trial. Counsel in the course of his application was of

the view that the trial judge not advise the jury to disregard the content of the interview

37. As we have observed, this Court will only intervene if the refusal of the application gives

rise to a miscarriage of justice. It is the position that in his interview, Mr Freeman

demonstrated an aversion on his part towards Patrick Roche, however, he also described

the accomplices John Cahill and William Gammell as dangerous people. In a joint trial, an

accused may make remarks disparaging of another accused or indeed may seek to

incriminate another accused. However, this does not in and of itself require separate trials

and we are satisfied that the remarks made by Mr Freeman in interview were not of such

a prejudicial nature so as to require a separate trial, but rather were indicative of his

animosity towards Patrick Roche and indeed other persons. Furthermore, we are satisfied

that this is precisely the type of situation which underpins the rationale for a joint trial;

should each accused be tried separately, attempts can be made to blame the other

accused. It is against such a background that the remarks made by Mr Freeman must be

38. Moreover, in the course of the application for separate trials, counsel for Mr Patrick Roche

emphasised that he did not wish the judge draw attention to the material which he

considered to be prejudicial and that the only remedy was that of a separate trial. On

many occasions during trial, a decision may be taken by a legal team not to draw

attention to a remark for fear of aggravating a situation and re-enforcing the material in

the jury’s mind. In refusing the application for severance, the judge indicated that he

would hear submissions as to what, if anything, counsel required him to advise the jury in

39. In his charge, the judge advised the jury that Mr Freeman was arrested and detained and

interviewed whilst in detention. He then went on to deal in substance with the content of

those interviews and took care to ensure not to refer to the impugned material which had

been redacted from the memorandum of interview furnished to the jury. The trial judge

did not specifically instruct the jury that the content of Mr Freeman’s interview was only

evidence in respect of him and not in respect of the other accused. It is unfortunate that

he did not do so but in circumstances where he did not refer (as indeed he was so

requested) to the impugned extracts and where the redacted version was furnished to the

jury, the judge exercised his discretion appropriately. Moreover, he advised the jury that

the position adopted by Alan Freeman was that he knew nothing in respect of either

aggravated burglary and therefore, it can be concluded that the jury viewed the

40. We are satisfied that the impugned remarks contained in Alan Freeman’s memorandum of

interview were not of the order of prejudice to necessitate a separate trial. Alan Freeman

demonstrated animosity towards a number of persons in his interviews and his comments

could be considered of a type seeking to place the blame other than on himself.

41. Moreover, juries have been shown time and again to be responsible and robust and of

sound common sense. The jury was advised by the judge that Alan Freeman’s case was

that he knew nothing of the Garvey or Creed burglaries and undoubtedly, they were

entitled to view the interviews in that knowledge. Therefore, whilst the jury were not

expressly instructed that the content of his interviews was not evidence against the other

accused, it was made clear to the jury that his case was that he had no knowledge of

either burglary. Patrick Roche’s right to a fair trial was further safeguarded in that the

memorandum of interview was redacted so as to remove the impugned material. This

The Learned Trial Judge erred in law in allowing unlawfully-retained DNA samples to be

42. By way of background, on the 11th June 2012, the Gardaí located a Dunnes Stores bag in

which was found various items, including a balaclava and gloves. DNA was extracted

from those items, specifically from the mouth area of the balaclava and from inside the

gloves and profiles generated. Subsequently, following their arrest on the 18th October

2012, DNA samples were taken from Patrick and Philip Roche by An Garda Síochána

pursuant to the Criminal Justice (Forensic Evidence) Act, 1990, as amended. On the 19th

October 2012, the samples were analysed, DNA profiles were generated and compared

with the samples from the balaclava and gloves. The comparison yielded matching

profiles. The appellants were charged on the 15th March 2016 with the offences of which

they were subsequently found guilty. The appellants argue that the samples were

retained by the Gardaí after the 18th October 2013, without seeking a retention order and

thus the samples were unlawfully retained. The Criminal Justice (Forensic Evidence) Act

1990, as amended provides for the destruction of bodily samples after a period of 12

months from the taking of the sample where proceedings for an offence has not been

instituted, subject to certain exceptions. During the trial, counsel for the prosecution

accepted that there was no excuse offered as to why there had been no application made

to retain the samples but urged the trial judge to exercise his discretion to admit the

43. In admitting the evidence, the trial judge relied on the decision of The People (DPP) v.

“It seems to me that it is relevant to consider or not whether there had been or

the more real question is whether there had been any evidence or whether there is

any evidence of a sort of deliberate or conscious attempt to violate the

constitutional rights of the accused men by the State in holding on to those

samples, and no such violations have been identified by me, having heard the

44. The appellants submit that the trial judge erred in admitting the DNA evidence when the

prosecution had conceded that the samples were illegally retained and no explanation as

to why this was so was put forward. The appellant relies on The People (DPP) v. JC

“…there is also an obligation on the courts to uphold the law and to discourage

It should not, therefore, be taken that evidence obtained in circumstances of

illegality should readily be admitted. Where the absence of legality arises in

circumstances properly described as reckless or grossly negligent, then the relevant

evidence should be excluded even if the illegality concerned does not result in a

45. The respondent argues that the trial judge was correct in his ruling and in placing reliance

on The People (DPP) v. Murphy [2016] IECA 287 and submits that the trial judge

exercised his discretion, which he was entitled to do, notwithstanding the absence of any

reason given for the illegal retention of the samples. Moreover, that the judge was correct

to admit the evidence in circumstances where it was not gathered in an unconstitutional

manner and there was no conscious violation of the appellants’ rights.

46. Admissions pursuant to section 22 of the Criminal Justice Act 1984 were made on behalf

of both appellants at trial that the samples were lawfully taken in the course of detention.

The issue concerned that of the retention of the samples outside of the 12-month period

47. The appellants argued that in circumstances where no explanation was offered as to why

an order had not been sought for the retention of the samples, the trial judge erred in

48. The respondent accepted at trial that no application had been made pursuant to statute

that the samples taken on 18th October 2012 be further retained on the expiration of the

12-month period thereafter. Mr Costelloe SC argues the samples were lawfully obtained

and that the only issue arising concerns the retention of the samples.

49. The relevant portion of section 4 of the 1990 Act (as amended) provides as follows: –

“4 (1) Subject to subsection (5) of this section, every record identifying the person from

whom a sample has been taken pursuant to section 2 of this Act shall, if not

previously destroyed, be destroyed as this section directs, and every sample

(2) Where proceedings for any offence in respect of which a person could be detained

under section 30 of the Offences against the State Act, 1939, or section 4 of the

Criminal Justice Act, 1984, or section 2 of the Criminal Justice (Drug Trafficking)

Act 1996, or section 50 of the Criminal Justice Act 2007 are not instituted against

the person from whom the sample was taken within 12 months from the taking of

the sample, and the failure to institute the proceedings within that period is not due

to the fact that he has absconded or cannot be found, the destruction of the record

and the sample identified by such records shall be carried out on the expiration of

that period unless an order has been made under subsection (5) of this section.

(5) If a court is satisfied, on an application being made to it by or on behalf of the

Director of Public Prosecutions, or the person from whom the sample was taken,

that there is good reason why records and samples to which this section applies

should not be destroyed under this section, it may make an order authorising the

retention of such records and samples for such purpose as it may direct.”

50. The proceedings against each of the appellants did not commence until 15th March 2016,

a period well beyond the 12-month timeframe under the Act. As can be seen from section

4(2) of the Act, in the ordinary course, samples taken must be destroyed where

proceedings for an offence for which a person could be detained under the 1984, 1939,

1996 or 2007 Acts had not been instituted against the individual within a period of 12

months from the taking of the forensic sample. Therefore, the legislation required the

destruction of the samples taken from each appellant and the records pertaining thereto

51. In the course of the trial in the court below, counsel for the appellant applied to the trial

judge to exclude the forensic evidence on the basis that the samples had been unlawfully

retained and therefore the results of the forensic examination, that is the DNA evidence,

ought not to have been admitted. The trial judge concluded that the samples had been

lawfully obtained and any issue which arose thereafter concerning the retention of the

samples amounted to an illegality and therefore he retained the discretion to admit the

evidence. He decided to exercise his discretion in favour of the prosecution and said: –

“Samples should have been destroyed by 18th October 2013. I am, however, asked

to exercise my discretion to allow into evidence the samples and I suppose the

results which flow therefrom, notwithstanding the fact that the samples, was

properly or, if I could push it, illegally obtained were after a certain period of time

Firstly, I’m satisfied that was no explanation was given to me to assist me in

exercising the discretion that I’m being asked to exercise, that the excuse that was

given, if you could call it that, in The People (DPP) v. Murphy [2016] IECA 287– and

I’m going to read out the relevant section and this was given by forensic scientists

and what has been described as the excuse is as follows: “that the legislative

provisions requiring the destruction of DNA samples and their associated records

after the expiry of time permitted for their local retention has been largely ignored

by the authorities.” That’s not much of an excuse. It lacks detail and is such that it

doesn’t even constitute an explanation as to why there had been a practice of

retaining the samples…The more real question is whether there had been any

evidence or whether there is any evidence of this sort of deliberate and conscious

attempts to violate the constitutional rights of the accused men by the State in

holding onto the samples, and no such violations have been identified by me,

having heard the evidence. I should also say that it is clear that there was no

violations in respect of the collection acquisition of the samples. That all seems to

“The retention beyond 18th October 2013 was unlawful but was not, as is clear

from the judgment in DPP v. Murphy, not something which retrospectively breaches

the accused’s constitutional rights. I’m satisfied that, notwithstanding the lapse of a

considerable period, that given the circumstances of the case as I know to be on

the basis of the evidence that I’ve heard to date, it is correct that I exercise my

53. In the decision of McGinley v. Reilly and DPP [2009] 3 IR 125, Peart J., in considering a

sample taken pursuant to s.2 of the Criminal Justice (Forensic Evidence) Act, 1990 and an

“The applicant's rights to bodily integrity and his other undoubted rights, including

54. In the present case, samples were taken from each of the appellants whilst they were

detained in lawful custody. The samples were taken lawfully in accordance with the

provisions of the legislation. If the appellants had been charged with the offences of which

they were ultimately convicted within the 12-month time period, no issue could have been

taken with the admissibility of the forensic evidence. However, as no application was

made seeking to retain the samples of the records pertaining thereto after the 12-month

time period had elapsed, the appellants argued that the results of such samples and the

55. It is important to look at the timeframe when the appellants’ samples were analysed and

compared with the profiles generated from the items found in the Dunnes Stores bag. The

samples were taken on 18th October 2012 and the analysis was carried out on 19th

October 2012. Therefore, the results of the forensic analysis were known within a day of

the samples being taken from the appellants. It is clear that the samples were lawfully

obtained but it is equally clear that the samples and the records relating to the samples

were unlawfully retained beyond 17th October 2013 in the absence of any order

56. The purpose of taking the samples in the first instance was for the investigation of the

offences for which the appellants had been arrested. The purpose of carrying out the

forensic analysis was to seek to obtain evidence in respect of that investigation linking the

appellants to the crime. Retention of samples is permissible pursuant to the legislation

beyond the 12-month period from the taking of the sample. An application could have

been made before the courts for such an order, this was not done, and no explanation

57. The trial judge properly concluded that the retention of the samples and the records

beyond the time period permitted amounted to a breach of a legal right and therefore he

had a discretion as to the admissibility of the forensic evidence. It is clear that the

samples were lawfully obtained, and it is equally clear that the retention of the samples,

albeit contrary to statute, was not done in order to infringe on the appellants’

constitutional rights. As was stated by this Court in The People (DPP) v. Murphy

“The fact that sometime later the destruction of sample was not effected as

provided for by legislation, does not retrospectively create a breach of the

58. As we have stated, the samples were lawfully obtained and the use to which the samples

were put was a lawful one. The samples were analysed for the purpose of the criminal

investigation within the 12-month time period and so, when the analysis took place, the

samples were not only lawfully obtained but were lawfully retained. The subsequent

retention of the samples, beyond the permitted time period, was unlawful. However, this

was a matter within the discretion of the trial judge and in the circumstances of the case,

where the samples were lawfully obtained and where the forensic examination was

conducted when the samples were lawfully retained, the judge was perfectly within his

entitlement to exercise his discretion in favour of the respondent. This is not to say that

the Gardaí should be ignorant of the legislation and allow time to pass without seeking an

order for the retention of samples and records in appropriate circumstances. However, in

the context of this particular case, when the analysis was conducted promptly, the trial

judge exercised his discretion appropriately and this ground fails.

Grounds 11 and 13 of Patrick Roche’s Grounds of Appeal and Grounds 6 and 8 of Philip

59. These grounds of appeal are inextricably linked and concern the validity of the arrest of

each appellant. Grounds 11 and 6 concern the validity of a search warrant issued by the

District Court to search the home of Patrick and Philip Roche, subsequent to which each

was arrested and Grounds 13 and 8 concern the legality of the arrest of both men. The

background concerning grounds 13 and 8 is somewhat complex in that the issue initially

raised at trial concerned the legality of the arrest of the appellants, where the trial judge

found the arrest of each appellant to be unlawful. However, as events unfolded during the

trial, the trial judge reversed his ruling and found in favour of the respondent. This ruling

now forms the foundation for grounds 13 and 8 which we will address following the

Ground 11 of Patrick Roche and ground 6 of Philip Roche - Error on the face of the

The Learned Trial Judge erred in law in finding that there was not an error which went to

jurisdiction on the face of the warrant dated the 17th October 2012 for 24 Kilcronan

60. Sergeant Ted Riordan made an application for a search warrant in respect of the first and

second-named appellants’ home address at 24 Kilcronan Close, Clondalkin, Dublin 22

before Blanchardstown District Court on the 17th October 2012 pursuant to s.10 of the

Miscellaneous Provisions Act 1997 as substituted by the Criminal Justice Act 2006. The

warrant was issued by the District Court judge and the following morning, on the 18th

October 2012, the search warrant was executed and the first and second-named

61. During the course of the trial, counsel for the first and second-named appellants

challenged the legality of the warrant on the basis that it contained a significant error on

its face as it did not reflect the wording of the statute pursuant to which it was issued,

62. The relevant portion of s.10 of the Criminal Justice (Miscellaneous Provisions) Act 1997,

10(1) -“ If a judge of the District Court is satisfied by information on oath of a member

not below the rank of sergeant that there are reasonable grounds for suspecting

that evidence of, relating to, the commission of an arrestable offence is to be found

in any place, the judge may issue a warrant for the such of that place and any

(2) A search warrant under this section shall be expressed, and shall operate, to

authorise a named member, accompanied by such other members or persons or

(a) to enter, at any time or times within one week of the date of issue of the

warrant, of production if so requested of the warrant, and if necessary by the

(b) to search it and any persons found at that place, and (c) to seize anything

found at that place, or anything found in the possession of a person present

at that place at the time of the search, that that member reasonably believes

to be evidence of, or relating to, the commission of an arrestable offence.”

63. The relevant portion of the search warrant issued did not include the words “as the

"Blanchardstown District Court No. 1, section 10 of the Criminal Justice

Miscellaneous Provisions Act 1997, warrant to search. “Whereas it appears to me

that as a result of information on oath of Sergeant Ted Riordan, Bruff Garda

Station, a member of An Garda Síochána not below the rank of sergeant that there

are reasonable grounds for suspecting that evidence of or relating to the

commission of an offence referred to in subsection 1 of section 10 of the Criminal

Justice (Miscellaneous Provisions) Act 1997 to wit, aggravated burglary, contrary to

section 13(1)(3) Criminal Justice (Theft and Fraud Offences) Act 2001 is to be

found namely at 24 Kilcronan Close, Clondalkin, Dublin 22. I, being satisfied that

the grounds set out are reasonable, herewith authorise Sergeant Ted Riordan, a

member of An Garda Síochána of Bruff Garda Station, accompanied by any other

members of An Garda Síochána to enter within one week of the date thereof, if

necessary by the use of reasonable force, the place situated at Kilcronan Close,

Clondalkin, Dublin 22 in the said District Court, to search the place and any person

found therein and to seize anything found out that place or anything found in

possession of any person present at that place at the time of the search which the

said member reasonably believes to be evidence of or relating to the commission of

64. In upholding the legality of the warrant, the trial judge ruled that:-

“…it seems to me that the warrant on the face is not defective. I'm satisfied that

when Garda Riordan got that warrant, that he's governed by the provisions of

Section 6 of the 2006 Act, which amended the 1997 Act. And there's no evidence

to suggest that him, as the member who was named as the person authorised,

there's no suggestion at all that he was doing anything other than exercising the

powers conferred on him to this warrant, other than in accordance with the Act and

in particular in accordance with subsection 6, subsection or, sorry, section 6, the

amendment to the 1997 Act. And it seems to me that in those circumstances, he

has been operating in compliance with the statute, that he was accompanied by

such other members as he considered necessary, him being the person who was

Mr Lynam has not suggested that each individual member ought to be named and it

would make no sense whatever that they were. His argument is that the warrant

on the face should specify or should add the following word or words to this effect;

"accompanied by other members of An Garda Síochána as are necessary or as

Sergeant Riordan considers to be necessary". I do not see that there is a

requirement for that addition in the warrant on the basis of my reading and

rereading and rereading the amendment. And so, I reject that element of the

65. It is contended that the trial judge erred in failing to have regard to the significance of the

safeguard pursuant to the terms of s.10 of the 1997 Act, as amended and the fact that

66. The appellants argue that the absence of the words “as the member thinks necessary” is

not simply a technical flaw, as suggested by counsel for the prosecution but rather, a

sufficiently serious error on the face of the warrant, thus rendering the warrant unlawful.

67. The respondent submits that there was no error as to jurisdiction to issue the warrant.

The warrant was issued on application by a member of An Garda Síochána of the requisite

rank on foot of information on oath. The respondent argues that the error on the face of

the warrant was simply an inadvertent omission concerning the limitations on those who

could accompany Sergeant Riordan in the search of the premises to which the warrant

related and thereby amounted to an error of the technical kind. Such an error, it is

argued, is insufficient to invalidate the warrant. The respondent relies on the dicta of

O’Donnell J. in The People (DPP) v. Mallon [2011] 2 IR 544 in this respect where he

concluded that a mere error, especially one that is not calculated to mislead or does not

mislead, will not invalidate a warrant. As such, the respondent submits that the warrant

contained all the essential ingredients of a valid search warrant and the omission of the

68. The entry onto private property can only be done in accordance with law as such entry

encroaches on the constitutional rights of the individual. In order to be validly issued,

there must be compliance with the statutory preconditions for the issuing of the warrant.

Section 10 of the 1997 Act as substituted by section 6 of the 2006 Act permits for the

issuing of a warrant to search the named premises where there are reasonable grounds

for suspecting that evidence of or relating to the commission of an arrestable offence is to

69. Accordingly, a district judge must be satisfied by information on oath of a member not

below the rank of sergeant that there are reasonable grounds for suspecting that

evidence of or relating to the commission of the arrestable offence is to be found in the

70. A search warrant issued under this section shall be expressed and shall operate to

authorise a named member, in this instance Sergeant Riordan, accompanied by such

other members or persons or both as a member thinks necessary to enter the premises at

any time or times within one week of the date of the issue of the warrant.

71. The evidence at trial disclosed that an application was made before the district judge on

information on oath by Sergeant Riordan. The information on oath set out the grounds for

the requisite suspicion and the district judge issued the warrant.

72. The warrant was read into the record at trial and it is clear that the statutory

preconditions for the issuing of the warrant were satisfied, namely; that the district judge

was satisfied by information on oath by Sergeant Riordan that there were reasonable

grounds for suspecting that evidence of or relating to the commission of the stated

offence was on the named premises. The warrant authorised Sergeant Riordan

accompanied by any other members of An Garda Síochána to enter the property within

73. While the warrant expressly authorised Sergeant Riordan accompanied by any other

members of An Garda Síochána to enter the premises within the requisite time frame, the

warrant did not include on its face that Sergeant Riordan was authorised to enter the

property accompanied by such other members or persons or both as he thought

74. Consequently, the appellants argue that there was not strict compliance with the terms of

75. The question is whether this omission amounts to an error which goes to the heart of the

jurisdiction to issue the warrant or whether it is an inadvertent error on the face of the

warrant which would not in the ordinary course invalidate the warrant.

76. When presented with the warrant, the occupier would be in a position to identify the

warrant was issued by a district judge, the statutory provision under which it was issued,

namely section 10 of the 1997 Act, the alleged offence of aggravated burglary, the

address to be searched, namely; 24 Kilcronan Close, Clondalkin, Dublin 22, that Sergeant

Riordan accompanied by other members of An Garda Síochána were authorised to enter

the premises, the time period within which the search could be effected, the date on

which the warrant issued and that there was a suspicion that evidence in relation to the

commission of the stated offence or in connection with the offence was to be found on the

77. Lawful authority for the issue of the warrant must be demonstrated clearly on its face. It

must be clear that there was compliance with the jurisdictional requirements. When one

compares the wording of section 10 of the 1997 Act with the substituted provision by

virtue of section 6 of the 2006 Act, it is apparent that the warrant is more in keeping with

the terms of the 2006 Act. There can be no doubt but that this was an inadvertent error

and equally there can be no doubt but that this was an error within jurisdiction. It is

classically the type of situation where the District Court judge had jurisdiction to issue the

warrant but erred in misstating an aspect of the warrant in failing to include the words “as

the member thinks necessary”. Was this error sufficient to render the warrant invalid? We

78. In The People (DPP) v. McCarthy [2010] IECCA 89, the Court distilled a number of

“(a) Documents, such as search warrants, must be carefully prepared having regard to

the fact that they entitle gardaí or other authorised officers to enter the property of

a citizen, and in the course of so doing, to use such force as may be necessary,

both to gain admission and to carry out the search and seizure authorised by the

(b) This cautionary approach is particularly enjoined when the search warrant is in

respect of the dwelling house of a citizen, in light of the recognition granted to such

warrant will, by virtue of the same, lead automatically to the invalidation of a

(d) In particular where the substance of the warrant, as opposed to its form, is not

open to objection, the invalidation of the warrant will not necessarily ensue.

(e) The nature of the error, or omission, must be scrutinised by the courts to see

whether it is of a fundamental nature, including an error going to jurisdiction.

Several factors may be taken into account, including whether the error is a mere

mis-description, whether it is likely to mislead, whether it undermines the apparent

jurisdiction to issue it, according to the warrant on its face, and such matters,

before the courts will find, in an appropriate case, that it should be considered

(f) It is not possible in relation to non-substantive errors, that is to say, errors which

do not affect the substance of the legislative requirements found in the body of the

warrant itself, to say that they will never lead to the invalidation of a search

warrant, due to the wide variety and nature of errors which may occur.”

79. The importance of the constitutional protection of Article 40.5 of the Constitution in

respect of the inviolability of an individual’s dwelling cannot be overstated and this serves

to emphasise the need to carefully scrutinise a warrant. A court may be presented with

many different types of errors which may or may not impact on the validity of the

warrant. O’Donnell J. clarified this area of the law and extensively analysed the case law

in The People (DPP) v. Mallon [2011] 2 IR 544. In Mallon, the error complained of

concerned the fact that the address of the premises to be searched was misstated. At

“More difficulty arises with those cases which appear to deal only with errors in the

body of the warrant. It is now quite clear that although a warrant should be

prepared with care, not every error will lead to invalidation of the warrant. In

particular, where the substance of the warrant as opposed to the form is not open

to objection, invalidity will not necessarily ensue. In such cases, the nature of the

error or omission must be scrutinised to see if it is of a fundamental nature. Among

the factors which may be taken into account whether the error is a mere

80. The error in the warrant was a failure to complete the warrant in terms of the statute.

The issue is whether such an omission makes the warrant unintelligible. Of note is the

approach commended by O’Donnell J in The People (DPP) v. Mallon [2011] 2 IR 544 He

“The approach of the court is searching and even sceptical, but not one of

deliberate, unreasonable, and unreasoning ignorance which is blind to the

In approaching any document or indeed any piece of communication, it is necessary

to put it in its factual context. Where the document is legal, that may also involve

its legal context. That will involve deploying knowledge which is common to any

anticipated reader of the document, such as conventions of language, or, may

involve receiving evidence as to specific matters known to the particular audience.

This is an exercise which is carried out every day in the communication between

81. We are satisfied that while there was a defect on the face of the warrant, the omission

could not be said to lead to a conclusion that the search warrant was issued without

authority. The warrant, even absent the words “as he thinks necessary”, made it quite

clear to the reader that Sergeant Riordan was authorised to enter the premises

accompanied by any other members of the Garda Síochána. The type of defect

complained of falls within the scope of an inadvertence error, rather than a fundamental

defect. The requirement of the statute is that the warrant shall be expressed to authorise

a named member accompanied by other Gardaí or other persons as the member thinks

necessary. The warrant must authorise a named member and state that he/she may be

accompanied by other members or persons but is not invalidated by the omission of the

words “as the member thinks necessary”. The state of mind of the named member may

be given in evidence or indeed may be implied by virtue of the fact that other members of

An Garda Síochána accompany the named member. The trial judge took an admirably

rational approach to his consideration of the warrant and we find no error in his ruling.

Ground 13 of Patrick Roche and ground 8 of Philip Roche- Reversal of the ruling on

The Learned Trial Judge erred in fact and in law and acted contrary to fair procedures in

reversing his ruling that the arrest of the appellant at 24 Kilcronan Close, Clondalkin, D22

82. In the course of the trial, on Friday 14th July 2017 (day 17) the legality of Patrick and

Philip Roche’s arrest on the 18th October 2012 was challenged. The first aspect of the voir

dire concerned the validity of the search warrant and the second aspect concerned the

legal entitlement of the arresting Gardaí to enter the home of the appellants.; whether

the arresting Gardaí were lawfully in the appellants’ home when the arrests were effected.

Central to the appellants’ submission was, and is, the constitutional protection provided

by Article 40. 5 of the Constitution in respect of the inviolability of the dwelling house. It

is argued that the arresting Gardaí were present in the appellants’ home without lawful

83. Members of the Gardaí entered the dwelling in execution of the search warrant on the

18th October 2012. Two members of the Gardaí; Garda McGlinchey and Garda Young

proceeded to arrest Patrick Roche and Philip Roche respectively. In short, the appellants’

argument is that the arresting Gardaí had no power to enter the property on foot of the

search warrant where their stated purpose was that of arrest. In other words, if the

warrant was lawful, it was lawful only for the purpose of search.

84. The appellants submit that the facts of this case illustrate why s.10 of the 1997 Act, as

amended, obliges the Garda to whom the warrant issues to ensure that only those who

85. To elaborate on the background; the voir dire concerned two issues and the respondent

called three witnesses in this regard; namely, Sergeant Riordan who gave evidence

regarding the search warrant and the execution thereof, Garda McGlinchey and Garda

Young who entered the house following the execution of the warrant. Garda. McGlinchey

gave evidence of arresting Patrick Roche and Garda Young gave evidence of arresting

Philip Roche. Each appellant was arrested pursuant to s.4(3) of the Criminal Law Act

1997. Evidence was given by the arresting Gardaí that on entering the house, they each

immediately arrested the appellants. Garda Young stated that his role was that of arrest

and no evidence was given by either member that they took part in the search.

86. The submission on behalf of the appellants can be simply stated; the search warrant

authorised a search of the premises but did not authorise entry for the purpose of arrest.

The Gardaí ought to have invoked section 6 of the Criminal Law Act 1997 and informed

each of the appellants that they were present on the premises for the purpose of arrest.

87. This argument was made at trial and in response, the respondent submitted that the

Gardaí were lawfully on the premises on foot of the lawful search warrant as part of the

investigative team and were entitled to arrest the appellants. The trial judge ruled that

the arresting Gardaí were unlawfully in the appellants’ home and found the arrest

“I'm not satisfied beyond reasonable doubt, which is the standard that I'm required

to be satisfied to, that the members were on the premises and I'm not criticising

the guards for this at all, that the members were on the premises lawfully. There

was no evidence adduced to the effect that they were there to carry out a search

and that they were there to assist Sergeant Riordan. I accept entirely that they

were members of the investigative team and there was nothing illegitimate in their

being present; but the evidence is, particularly from Garda Young, that he had no

role to play in the search. It wasn't sufficiently clear to me at all that that

pertained to only the time after the arrest of Mr Philip Roche. In those

circumstances, I'm satisfied that the arrests were not lawful.”

Application to Re-visit the Consequences of the Ruling on the Lawfulness of the Arrest

88. Thereafter, following this ruling, counsel for the prosecution sought to have the evidence

which flowed from the arrest of each appellant admitted in reliance on The People (DPP)

v. JC [2015] IESC 31. In pursuit of this objective, the respondent sought to call evidence

to address the state of mind of the relevant witnesses. The evidence which the

respondent sought to have admitted was DNA evidence which arose from the samples

89. Gardaí McGlinchey and Young were re-called, following which evidence, counsel for the

respondent then applied to the trial judge to revisit the consequences of his ruling

concerning the lawfulness of the arrest on the basis of the emergence of new evidence.

Garda McGlinchey stated in re-examination that Patrick Roche and his family ordinarily

resided in the house at 24 Kilcronan Close. At the conclusion of his evidence, Mr

Costelloe SC flagged to the Court that he intended to raise a matter with the trial judge

separate from the “JC” application. Garda Young then gave evidence and in cross-

examination stated that if the two men had not been present in the house on the relevant

date, he would have become part of the search team. Both emphasised that the primary

purpose of their presence in the house was to effect the arrest of the two men. Strenuous

objection was taken to the respondent’s application by both appellants. In making the

“My friends, as I’ve indicated, may have other witnesses that they want to call in

relation to the JC point...But I have a different matter that I'm asking the Court to

address. And I want to be clear about this; I'm not asking to you revisit your ruling

in the context of what happened this morning; however, I am asking you to revisit

the ultimate consequence of this in circumstances where you've now heard direct

evidence and cross examination to the effect that both of these guards went there

in the knowledge that both of the men ordinarily resided at that address. And

under section 6, subsection 4 sorry, subsection 2(d), if the people ordinarily

90. The appellants submitted that such an application was fundamentally unfair and

procedurally incorrect. Moreover, it was urged on behalf of the appellants that time was

needed to consider the approach now being pressed by the respondent. Mr Lynam BL for

Patrick Roche made the bulk of the argument in opposition to the respondent’s course of

action and sought time to consider the position and possibly to call witnesses. The trial

judge was disposed to accede to this application and indicated that he would adjourn the

91. To further complicate matters, the objection to the admissibility of the DNA evidence was

ongoing. This objection was a focused one and concerned the retention of the samples

taken from Messrs Roche for the purpose of DNA analyses beyond a period of 12 months

in the absence of charge or an order for retention. Senior counsel for Patrick Roche had

streamlined the issue and was in a position to make certain admissions on the evidence

pursuant to section 22 of the Criminal Justice Act 1984, thus leaving a net point for

determination by the trial judge. The trial judge proceeded to deal with this issue and

concluded it on Friday, 14 July 2017 and adjourned the application to revisit the issue

concerning the lawfulness of the appellants’ arrest to the following Tuesday.

92. Counsel for the respondent firstly indicated that he had misstated the law concerning the

use of s.6(2) of the Criminal Law Act 1997, in that he had contended that it was incorrect

to suggest that the Gardaí were required to inform occupiers of a dwelling that entry was

being gained pursuant to s.6 of the 1997 Act. He submitted on behalf of the respondent

that reliance would be placed on The People (DPP) v. Laide & Ryan [2005] 1 I.R. 209.

93. The argument was advanced on behalf of the respondent that the trial judge could

lawfully review the decision made in light of the fresh evidence from Gardaí McGlinchey

and Young and in this respect the respondent relied on The People (DPP) v. Collins

94. The trial judge accepted the respondent’s submission that he was entitled to review his

decision in light of additional evidence being introduced and concluded on considering this

new evidence, that the Gardaí were there for a dual purpose and therefore the arrest was

lawful. In ruling that he was entitled to revisit his ruling on the voir dire, the trial judge

“Firstly, I asked if having made a decision on the issue on the voir dire, I was

entitled to reconsider the decision I had made, or for that matter, to deal with a

new application in respect of what is essentially the same issue. Strong opposition

to this has been raised by counsel for the first and second named defendants,

understandably so. Having considered the position, it seems to me that the

decision of the Court of Appeal and the DPP v. Sharon Collins, [2011] IECCA 64

is of some assistance in that it supports the proposition that a trial judge is not

precluded from reviewing a previous decision in light of additional evidence being

introduced. A trial is a fluid process, and important evidence which provided clarity

as to the primary purpose of the arresting gardaí's presence on the 18th was given,

and I cannot see how this evidence causes any injustice or unfairness to the

accused. It's simply constituted in clarification as to the principal reason for their

being present on the morning, that is to effect an arrest and the belief that the men

ordinarily resided there, that is the Roches. I am not convinced by Mr Lynam's very

eloquent argument that this application and my consideration of the matter is

either an abuse of process or that it amounts to or that it amounts in some way

to my dealing with matters which I'm estopped from dealing with. The proceedings

in this case have not been concluded and the doctrine of res judicata is offended by

my considering this application. I'm satisfied, therefore, that it is within my

discretion to reconsider the matter or consider the fresh matter, whichever way you

prefer to look at it. Trials are an intricate part of the administration of justice. And

if my reconsidering the matter in light of additional evidence or clarification of

evidence is in the interests of establishing the truth in respect of the issue, I would

95. Having decided that he was entitled to revisit his ruling of the voir dire, the trial judge

then distinguished the facts of the instant case and those in The People (DPP) v. Laide &

“In this case, the case that we're dealing with presently, the warrant is not bad.

The entry by the two members of An Garda Síochána was for the purpose of

arresting the first and second named defendants which the gardaí were entitled to

do under the provisions of section 6. The prior execution of the search warrant

made entry for them more convenient. I'm conscious that the sanctity of the

dwelling had at this stage already been lawfully breached by An Garda Síochána

pursuant to their entry on foot of a search warrant. The subsequent entry thereon,

for purposes lawfully permitted, that is arrest, by the two relevant members of An

Garda Síochána who gave evidence of being part of the investigation team and one

of whom, Garda Young, gave direct evidence that he would probably have taken

part in the search if the men weren't there, cannot in all of the circumstances be

seen as a violation of the sanctity of the dwelling and a breach of Mr Roche's rights.

In the circumstances, I'm satisfied that fairness dictates that I set aside my earlier

decision, that the arrests were unlawful on the basis of clarification of the evidence

and/or additional evidence which served to clarify the circumstances of entry and

arrest. I'm satisfied, therefore, that the arrests are lawful..”

96. The appellants contend that the decision of the trial judge to reverse his ruling was

contrary to fair procedures and furthermore, that he erred in fact and in law in so doing.

Submissions of Patrick Roche and Philip Roche on the procedural aspect.

97. Both appellants submit that there was no opportunity to cross-examine on the evidence

relied on by the prosecution to re-visit the ruling, as when it emerged, only the

prosecution were aware of their intention to rely on it in seeking a reversal of the ruling.

98. Furthermore, each submit that the application to re-visit the ruling is an abuse of process

and based on a mischaracterisation of the evidence by the trial judge. In this respect, it is

submitted that the judge mischaracterised the evidence of Garda Young as Garda Young

only referred to himself when he stated that he believed he would have joined the search

team in the absence of the appellants. The appellants submit that there is no basis for

this belief being extended to both Gardaí and therefore no grounds for the judge to re-

99. It is also submitted that the appellants’ right to fair procedures was breached and

occasioned real prejudice to them. It is submitted that in the initial voir dire, once it

became apparent that there was a strong argument to be made that the arresting Gardaí

were present in the dwelling as trespassers, it was unnecessary to widen the scope of the

cross-examination to consider whether members of the ERU who had also entered the

100. Moreover, the appellants submit that Collins can be distinguished from the present case

as Collins concerned an unfairness to the prosecution as a result of time constraints which

the trial judge sought to remedy. The appellants submit that no such circumstances of

constraint arose here and the ruling here was grounded on unfair and inappropriate use of

the content of a subsequent voir dire related to a different issue. In substance, it is

submitted that the respondent wished to make a submission which had not been made on

the initial voir dire and that no fresh evidence had in fact emerged.

101. The respondent submits that the appellants received proper notice of the fact that counsel

for the DPP would seek to reopen the issue of the lawfulness of the arrests and counsel

for the appellants were informed of the fact that Collins would be relied upon as authority

for the proposition and had copies of Collins with them when the case was recommenced;

therefore counsel was given ample time to consider and address the issue. It is further

submitted that the trial judge was correct in relying on Collins and the evidence in this

regard was relevant and probative to the issue in question and the appellants herein had

a full opportunity to cross-examine the relevant Gardaí again in relation to any matters

102. The respondent argues that it is not unfair or offensive to the principle that trials must be

conducted in accordance with law or contrary to fair procedure that the prosecution was

permitted on the basis of newly adduced evidence to attempt to convince the Court to

revisit its earlier ruling. The respondent submits that there was no basis for considering

that the evidence was invented or concocted, it was relevant to the arrest issue and it

would have been a grave injustice to the prosecution not to allow the matter to be re-

103. It is submitted that the trial judge was correct in finding that the arrest was valid on the

basis of the evidence given by the Gardaí at the second stage of the voir dire.

104. Proceedings leading to this aspect of the ground of appeal evolved over a period of two

days. As can be seen from the above summary of events, once the defence indicated a

challenge to the legality of the appellants’ arrests, the respondent in the usual way,

105. We will firstly address the pertinent aspects of Garda McGlinchey’s evidence. When Garda

McGlinchey was first called by the respondent, he stated, inter alia, that on the relevant

date of entry to the appellants’ dwelling house, he was part of the investigation team

which was involved in the investigation of the aggravated burglary of the 31st May 2012.

He went on to say that when he gained access to the house, he arrested Patrick Roche

pursuant to the provisions of section 4 (3) of the Criminal Law Act 1997. That in effect,

concluded Garda McGlinchey’s evidence. No issue arose regarding the manner of arrest,

rather the issue lies with the legality of Garda McGlinchey’s presence in the house.

106. As can be seen at the conclusion of the voir dire, the trial judge found that the search

warrant was lawful but that the presence of the Gardaí for the purpose of arrest was not

107. As we have outlined, there then followed an application on the part of the respondent

seeking to rely upon the decision of The People (DPP) v. JC [2015] IESC 31. To lay the

evidential foundation for this application, the prosecution recalled Garda McGlinchey. On

this occasion, McGlinchey, in cross examination stated as follows: –

“A. So that’s the power of section 6 you’re talking about, is it?

A. well, I was there – I was – Sergeant Riordan had executed the warrant and I

followed Sergeant Riordan and then I arrested the defendant, Patrick Roche.

A. Well, I was part of the overall investigation team. The search team was one part

of it; the specialist unit were another part of that particular morning. I was part of

the people that were there to do the arrests. You know, there’s various different

At a later stage in his evidence he replied to a question as follows: –

“A. When the warrant – my brief was when the warrant was executed and if Patrick

Roche was present in the house, that I was to come in and to arrest Patrick Roche.”

One re-examination, the witness stated that he understood that Patrick Roche and his

108. The conclusion of Garda McGlinchey’s evidence having been recalled, Mr Costelloe SC

immediately indicated to the trial judge, that his intention was to raise a matter

unconnected to his proposed application pursuant to the principles in The People (DPP) v.

109. We now look to the evidence of Garda Young. When first called on the issue, Garda Young

outlined the sequence of events in which the search warrant was executed and stated

that he followed in after Sergeant Riordan and when he went into the house, he arrested

Philip Roche pursuant to section 4 (3) of the Criminal Law Act 1997. Again, no issue is

taken with the legality of the arrest itself. Garda Young clearly stated that his role was

When he was called, following the trial judge’s ruling, he stated as follows: –

“A. Section 10. Judge, so far as I was concerned, my object if Philip Roche was

present in the premises, Judge, I was to arrest Philip Roche under section 4(3)

but were you aware that under section 10 that your presence there would be in

A. Judge, if the members if, I presume, Judge, if my my thing is, Judge, if the two

men hadn't been in the house on the day, I would have been a member of the

“A. Yes, Judge, we all had – we were all part of the briefing, we all had the same

110. Counsel for the respondent then made an unusual application to the trial judge asking the

judge to revisit the ultimate consequence of his ruling that the arrest was unlawful in

circumstances where he had now heard evidence that the Gardaí were present in the

knowledge that both of the appellants ordinarily resided at that address and the

prosecution sought rely upon the provisions of section 6 (2) (d) of the 1997 Act.

111. This was strenuously opposed on behalf of the appellants who not only objected in

principle but also objected on the grounds that they were taken by surprise by the

application and needed to consider the position. The trial judge acceded to this application

without any prevarication and the matter stood adjourned from Friday to the following

112. It seems that the appellants’ submission on the procedural aspect of matters is twofold.

Firstly, revisiting the ruling was contrary to fair procedures and in breach of the

appellants’ constitutional right to a fair trial. Secondly, that there was no evidential basis

113. In this respect, the respondent relies upon the decision in The People (DPP) v. Collins

[2011] IECCA 64, where the Court found that the determination of inadmissibility

following a voir dire is not irreversible. In that case, the Court was satisfied the trial

judge could subsequently revisit a ruling made following a voir dire. This obviously

depends upon the circumstances in any given case. The appellants argue that the

circumstances which could give rise to a reversal of the ruling simply were not present on

the facts of this case. They say that the respondent, having failed to make the submission

on the conclusion of the evidence on the voir dire regarding the legality of the arrest,

sought to do so on the evidence of the Gardaí recalled. The argument being that it was

open to the respondent to make the same submission on the evidence at the conclusion

114. In our view, a court can reverse the ruling on admissibility, however, much will depend

upon the circumstances and it is not a decision which should be taken lightly. Article 38 of

the Constitution guarantees that a person shall be tried in due course of law. Due process

demands certain safeguards. In State (Healy) v. Donoghue [1976] 1 I.R. 325, O’Higgins

“The concept of justice, which is specifically referred to in the preamble in relation

to the freedom and dignity of the individual, appears again in the provisions of

Article 34 which deal with the Courts. It is justice which is to be administered in the

Courts and this concept of justice must import not only fairness, and fair

The words ‘due course of law’ in Article 38 make it mandatory that every criminal

trial shall be conducted in accordance with the concept of justice, that the

procedures applied shall be fair, and that the person accused will be afforded every

115. It is quite clear from the evidence given by Garda McGlinchey and Garda Young when

they first gave evidence on the issue, that they were present in the knowledge that

Sergeant Riordan was in possession of a search warrant to search the home of the

appellants. Each was clearly tasked with the arrest of the respective appellants. Indeed,

116. Each witness, when recalled, reiterated they were tasked with the arrest of the appellants

with Garda McGlinchey indicating that if Patrick Roche was present in the house, he was

to arrest him and that he understood that Patrick Roche and his family ordinarily resided

at the address in question. Garda Young for his part indicated that if the two men had not

been present on that day, he assumed he would be part of the search team. He also

confirmed that the Gardaí were all part of the briefing and had the same information.

117. It appears to us that the information given when the Gardaí were recalled did not differ to

any significant degree from the evidence which was initially given by them in the voir

dire. While they reiterated that they were there for the purpose of arrest, this was evident

from their evidence initially. The evidence was amplified to include that Garda McGlinchey

was aware that the men ordinarily resided at the address in question and Garda Young

stated that if the men were not present, he assumed he would have been part of the

118. Garda McGlinchey stated in his initial testimony that he was part of the investigation team

119. It seems to us that the crux of this matter is whether the trial judge was entitled to

review his previous decision on foot of the amplified evidence and amplified submissions.

In that regard, the following circumstances are relevant: The appellants were not denied

their right to cross-examine the Gardaí for a second occasion. Nor are we satisfied that

the appellants were taken by surprise. Mr Costelloe flagged that he intended to raise an

entirely separate issue with the trial judge from the moment the evidence of Garda

McGlinchey concluded after he was recalled. Once the evidence of Garda Young

concluded, Mr Costelloe raised the issue, the appellants sought time to consider the

unusual nature of the application being made and the trial judge adjourned the matter

from Friday to the following Tuesday. There can be no question but that ample time was

afforded to the appellants to consider the application and to respond. Indeed, this is

evident by virtue of an examination of the transcript where fulsome submissions were

made in response to the application. These events took place on the same day and the

appellants’ legal teams were afforded the opportunity to consider the evidence and to

respond accordingly. The trial did not proceed in any meaningful way until the issue was

resolved, no evidence was adduced before the jury in the intervening period and finally,

120. In those particular circumstances, the appellants’ right to a fair trial was not breached and

the trial judge ensured that no prejudice was caused to them arising from the unusual

application on the part of the respondent. This type of application should seldom be

entertained, but the interests of justice demanded that the judge revisit his ruling in the

121. Accordingly, we are satisfied that the trial judge did not err in deciding to revisit his

ruling. However, there must be finality in the court process and this class of application

should be very rare indeed. It is fundamental that parties should ensure to marshal the

evidence and submissions. It is imperative, that all parties do so, but particularly the

122. In substance, the appellants advance the argument that while there may have been a

dual purpose in the sense that some Gardaí entered the house to search and some to

arrest, the Gardaí who effected the arrests were not present to fulfil both functions.

123. It is contended that the trial judge mischaracterised Garda Young’s evidence as being

evidence that both arresting members were part of the overall search team and hence,

there was a dual purpose to their presence in the dwelling. In any event it is argued that

124. Finally, it is submitted that it was open to the Gardaí to invoke a power of entry on arrival

at the house and they did not do so. That it was incumbent on them to indicate that the

intention on entering the house was to both search and arrest. The appellants also rely on

125. The respondent submits that the evidence disclosed that the Gardaí in attendance at the

appellants’ home did so on foot of a briefing regarding the investigation of the aggravated

burglary at the Creed home on the 31st May 2012. Therefore, those present were aware

that a warrant to search the appellants’ home had been obtained and the warrant was to

be executed on the 18th October 2012. It is further submitted that the transcript of

evidence makes it clear that while there were assigned roles, collectively all present were

126. The respondent relies on The People (DPP) v. Laide & Ryan [2005] 1 IR 209, and argues

that the factual position differs in the present case. In the former, the Gardaí entered the

dwelling house on foot of a search warrant which was subsequently deemed invalid. This

finding removed the foundation on which entry had been effected. No evidence was

adduced which indicated an intention to do anything other than carry out a search of the

house. The Court in that case found that as the Gardaí had failed to inform the occupiers

of the dwelling that they intended to arrest the accused, s.6(2) could not be relied upon.

127. It is contended in the present case that there was evidence that the Gardaí in attendance

were carrying out a lawful search pursuant to warrant in conjunction with the arrest of the

appellants, if they were present. It is submitted that the presence of the Gardaí was

legally permissible and that the trial judge was correct in ruling that, in light of the

decision in Laide & Ryan, he should set aside his earlier ruling and deem the arrests

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in

129. The onus of establishing beyond a reasonable doubt that the entry to a dwelling was

lawful rests with the respondent. In order to lawfully enter the appellant’s home, the

Gardaí relied upon the search warrant granted by the District Court. The trial judge

upheld the validity of this search warrant. Therefore, the basis of entry to the dwelling

house was lawful per se. However, the simple argument advanced by the appellants is

that while the warrant authorised the Gardaí to enter for the purpose of search, it did not

authorise the Gardaí to enter solely for the purpose of arrest. In lieu of relying entirely on

the warrant, it is argued that the Gardaí ought to have explained the basis of entry as

being for the purpose of search and arrest. Thus, the appellants say that at the time each

was arrested by the Gardaí, the Gardaí were trespassers in the Roche house as there was

130. Garda McGlinchey and Garda Young gave evidence that each had attended the briefing

regarding the investigation of the aggravated burglary at the Creed house and it is clear

from the evidence that the Gardaí entered the Roche house after the warrant was

executed by Sergeant Riordan. It is also evident that Garda McGlinchey and Garda Young

were tasked with arresting Patrick and Philip Roche. The legality of the arrest of each of

the appellants pursuant to section 4 (3) of the Criminal Law Act 1997 was not in question.

There can be no doubt that a team of Gardaí went to the appellants’ home on the date in

question in furtherance of the investigation of the aggravated burglary.

131. A power of arrest is provided pursuant to section 6 (2) of the 1997 Act: –

“For the purpose of arresting a person without a warrant for an arrestable offence,

a member of the Garda Síochána may enter, (if need be, by the use of reasonable

force), and search any premises (including a dwelling) where the person is already

a member, with reasonable cause, suspects that person to be, and where the

premises is a dwelling member shall not, unless acting with the consent of an

occupier of the dwelling, or other person who appears to the member to be in

132. Section 6 gives the Gardaí the power to enter a dwelling in certain circumstances to effect

the arrest of an individual without a warrant. This is a significant encroachment on an

individual’s constitutional rights. If a member of An Garda Síochána comes to an

individual’s dwelling without a warrant and with the intention to arrest a person who

resides there, an explanation must be given as to the purpose of seeking entry to enable

the occupier to permit or refuse entry. If entry is refused, in reliance on the section, the

133. In the instant case, the team of Gardaí had gained lawful entry to the dwelling on foot of

the valid search warrant. Certain Gardaí were tasked with searching the dwelling and the

evidence given at trial by Garda McGlinchey and Garda Young indicated a clear and stated

intention on their part to arrest the appellants. As was indicated by Garda Young; that

was his role. He amplified his evidence when he was recalled by saying that if the men

were not present, he would have assumed that he would have been part of the search

team. This does not take away from the fact that his and Garda McGlinchey’s primary role

134. The facts of this case can be distinguished from the facts which applied in The People

(DPP) v. Laide & Ryan [2005] 1 IR 209. In that case, the search warrant, being the

foundation for the entry to the dwelling, was found to be unlawful. Therefore, unless the

Gardaí were in a position to rely on an alternative lawful power of entry, they were

trespassers on the dwelling and any consequential activities on their part from which

evidence was gathered was deemed inadmissible under the law as it then was. There was

no evidence in that case of any intention on the part of the Gardaí who attended the

dwelling that they were there to do anything other than execute the search warrant.

There was no evidence that the Gardaí had a dual purpose in entering the dwelling,

135. In the present case, the clear and unequivocal evidence of the Gardaí who effected the

arrests was of their stated intention to do so. Entry had been lawfully gained by virtue of

the search warrant. It is not the position that entry was gained only for the purpose of

search. The point is made on behalf of the appellants that the Gardaí ought to have

explained, on gaining entry to the dwelling that their intention in so doing, was not only

136. Such a contention is a rather artificial one on the facts of this case in our view. In the

particular circumstances of The People (DPP) v. Laide & Ryan [2005] 1 IR 209, where the

search warrant was found to be invalid; as the Gardaí had failed to inform the occupiers

on seeking to gain entry to the house of a dual purpose in entering the house, no lawful

basis remained for their presence in the dwelling. As stated: –

“It follows that in the particular circumstances of the present case the least that

would have been required to have been done for the members of the Garda

Síochána is to have informed the parents that they wished to gain entry for the

purpose of search and arrest, if the lawfulness of their presence in the house was

not to be removed upon the subsequent finding that the search warrant was bad”.

137. Therefore, whilst it would certainly be prudent in any given case where the Gardaí rely on

a search warrant to gain entry, but have a dual purpose in gaining entry, that being; not

only to search but also to arrest, such should be stated at the point of entry. As stated in

“The fact that the power of entry exists does not mean, in the view of this court,

that the purpose of entry, namely the arrest of somebody who resides in the house,

does not have to be explained before entry is forced on foot of the power. The

inviolability of a citizen's dwelling is an important constitutional right and it cannot

be trespassed upon without explanation in clear and unambiguous terms. It has

been recognised that where the restriction of a constitutional right is permitted by

law, it must be restricted to the least extent necessary for the achievement of the

138. But, in the circumstances of the present case, entry to the dwelling was gained on foot of

a valid search warrant. That was the basis on which entry was sought, not on the basis of

section 6 of the 1997 Act. Therefore, in strict terms, it was not essential for the Gardaí to

indicate that their purpose in entering the residence was not just for the purpose of

search but was also for the purpose of arrest. Invocation of section 6 is required where

that is the sole provision upon which entry is sought to a dwelling. A prudent member of

An Garda Síochána might well explain there is a dual purpose of entry, if that is so,

notwithstanding his/her belief that he/she holds a valid search warrant, in the event of a

subsequent invalidation of a search warrant which would remove the very foundation of

139. In the present circumstances, the presence of the Gardaí on the premises was lawful on

foot of the search warrant and consequently it follows that the arrests were lawful.

However, if their presence on the premises had not been in accordance with law; that is if

the search warrant had been deemed to be invalid, then applying the dicta in The People

(DPP) v. Laide & Ryan [2005] 1 IR 209, their presence in the dwelling would have been

unlawful due to the failure to specifically explain to the occupiers that the Gardaí had

Grounds 2 & 3 of Alan Freeman; Ground 10 Philip Roche and Ground 15 Patrick Roche.

2. The learned trial judge erred in law and in fact in charging the jury on the meaning and

application of corroboration evidence to accomplice witnesses such that the jury were

informed that there was corroboration when in law and in fact none such corroboration

3. The learned trial judge erred in law and in fact in failing to accede to an application by

counsel on behalf of the above-named appellant to discharge the jury arising from the

learned trial judge’s failure to properly charge the jury in respect of corroboration

15/10 -The learned trial judge erred in law by failing to accede to the appellant's

application to discharge the jury following the judge's charge having regard to severe and

irreparable prejudice caused by the said charge and having regard to the inadequate way

the learned trial judge had addressed issues such as inferences and corroboration of

141. These grounds concern the manner in which the trial judge charged the jury on

corroboration. Each appellant contends that the judge misdirected the jury on the

meaning of corroboration and in particular misdirected the jury in the context of

accomplice evidence. Moreover, insofar as each appellant is concerned; Alan Freeman

complains that the judge mis-identified evidence as being capable of corroborating the

accomplice evidence and Patrick and Philip Roche contend that the judge not only erred in

directing the jury in terms of corroboration but also prejudiced the appellants in the mind

of the jury by his charge. While both contend that this arose in terms of the manner in

which the judge addressed corroboration and inferences, the inferences only have

application to Patrick Roche. The three appellants argue that the trial judge erred in

142. At common law a trial judge is mandated to warn the jury of the dangers of convicting an

individual on the uncorroborated evidence of an accomplice; that is, on the testimony of a

person who was actually involved in the commission of the offence charged.

143. In the present case the judge charged the jury on the issue of accomplice evidence,

“What is corroboration? You're going to hear reference to it at a later stage. It's

independent evidence which tends to show that the principal evidence is true.

144. The judge then went on to give examples of corroboration in the ordinary course of life

and having done so, advised the jury on the legal concept of corroboration: -

“But hopefully you understand what I mean when I say "corroboration". So, it's a

very simple concept in a lot of ways. So, the ingredients are that he corroborative

evidence should be independent and it should, in a criminal context, tend to

implicate the accused person in the commission of the crime with which he is

charged. So, it's important that you have a good understanding of this concept

because, in this case, there are two witnesses who are of importance in the case,

Mr Cahill and Mr Gammell, and they were accomplices, they were the getaway

Having explained the meaning of corroboration to the jury, the trial judge then proceeded

to instruct the jury specifically on the issue of corroboration vis-à-vis accomplice

“ As a matter of law, I must warn you that it is dangerous to convict an accused

person on the uncorroborated evidence of a person who was involved in the

commission of an offence. In this case, these two men were getaway drivers in

relation to the Creed and Garvey robberies. You are entitled to convict on the

uncorroborated evidence of an accomplice but, if you do so, you must bear in mind

that there are dangers and you must bear in mind the warning which I'm going to

give you. Both Mr Cahill and Mr Gammell were accomplices and, while both have

already been convicted following guilty pleas and both have been sentenced,

nonetheless, you must look carefully to see whether or not you believe that they

have anything to gain from giving the evidence which they have given. You've

heard their evidence in this respect and you've heard the different theories

advanced by the defendants, ranging from jealousy to the deflection of attention

from the real perpetrators of the crime. If you attach any credence to all or any of

these theories, or if you are in any way suspicious of the motivations of these

gentlemen, you must treat their evidence with suspicion. It is a matter for you to

attach the appropriate weight, as you see fit, to the evidence. The object of

corroboration in dealing with the evidence of an accomplice is to indicate to you

that although a particular witness may be believed, experience in courts has shown

that it is unsafe to act on the evidence of an accomplice alone, unless there is

corroboration. Accordingly, you should look to see if there is corroboration by

evidence independent of the evidence given by Mr Cahill and Mr Gammell.

However, if, having considered all that I have said and heeded my warnings to you,

you still believe that you can convict on the basis of the accomplices' evidence

alone, you are entitled to do so. You might want to look at the corroborating

evidence first, see what weight you attach to it and then consider the accomplices'

evidence. Then, consider the evidence given by the accomplices in light of

whatever corroboration they accept; do they accept the evidence of the accomplice,

so as to be satisfied beyond reasonable doubt as to his account implicating the

accused? I will identify some of the evidence which is capable of amounting to

corroboration of Mr Cahill and Mr Gammell's evidence, but it would be a matter for

you, members of the jury, as fact finders, to decide if that evidence actually

amounts to corroboration. It's not my job to decide; it's my job to tell you if it's

capable of amounting to corroboration. It will be your job to decide whether, in

actual fact, it does corroborate Mr Cahill and Mr Gammell's evidence. In this

respect, I will now say a few words about the evidence which you're entitled to

consider, and that brings me now to the area of inferences. So, when I read out

the evidence later on to you, I will identify various portions that are capable of

providing corroboration in respect of the Cahill and Gammell testimonies..”

145. The trial judge summarised the evidence, including that of Mr Gammell and Mr Cahill and

in so doing identified a number of pieces of evidence which were, as a matter of law,

capable of amounting to corroboration. Counsel for Patrick and Philip Roche took issue

with several of the examples identified by the trial judge and made an application to

discharge the jury on this basis. Counsel for Mr Freeman also took issue with the judge’s

charge, in particular in the judge identifying evidence as capable of corroborating the

accomplice witness; John Cahill. All three asked the judge to discharge the jury as a

146. Prior to commencing his summary of Mr Gammell’s testimony, the trial judge again

“We now come to the evidence of Mr William Gammell, who is an accomplice in the

Creed robbery. You will remember, members of the jury, the warning that I have

given you earlier this morning in relation to this evidence and the evidence of Mr

The judge then proceeded to summarise the evidence given by the accomplices, Mr

147. Several of the remarks in the judge’s charge with which counsel for the appellants took

issue relate to the evidence of the accomplice John Cahill. In particular insofar as Alan

“After a few minutes, he said that the lads came out and got into the car; Alan

Freeman, Stokes, Patrick Roche and Philip Roche. He said that Alan Freeman had a

screwdriver, Stokes had a baseball bat and Patrick Roche had a gun. He describes

himself as a driver. He described Alan Freeman as a passenger. Stokes was sitting

beside Philip Roche who was in the middle and Pat Roche was on the other side. He

was told to go back to Cullen. He said he saw Alan Freeman pull out an envelope

with Sterling and other foreign money in it. You remember that Mr Gerard Garvey

gave evidence that he placed the money that was stolen from him – and Anne

Garvey also said this – into a white envelope, and this evidence corroborates the

evidence given by the Garveys in relation – four, this evidence is capable of

corroborating the evidence given by the Garveys in relation to the money in the

The judge then continued with the evidence of Mr and Mrs Garvey and then said the

“Members of the jury, it is, of course, a matter for you to decide whether or not to

accept or reject the evidence that Mr Cahill has given you in respect of these

matters up to this point, and it is entirely a matter for you. And I’ve already spoken

to you in relation to the risks associated with evidence stemming from somebody

who, as a matter of fact, was an accomplice and very much involved in the Garvey

robbery, but I thought it might be useful at this point to draw your attention to

148. The trial judge in continuing with his summary of Mr Cahill’s evidence summarised the

movements of the vehicles and in particular that Alan Freeman, Patrick Roche and Mr

Stokes got into the BMW with an 08 registration and that Philip Roche remained in the

blue BMW and drove in the direction of Buttevant, and at some point Alan Freeman got

out of that vehicle and drove away in another vehicle leaving Patrick Roche and Mr Stokes

in the 08 BMW which was stopped by the Gardaí. The judge then said: –

“All of that evidence in relation to the changing of the cars and the driving from

somewhere outside Mitchelstown to Buttevant, and everything that is associated

with it, is evidence which is capable of corroborating John Cahill's testimony in

relation to this matter. It is a matter for you as to whether or not you accept that

149. When the trial judge was dealing with Mr Freeman’s case and having exhorted the jury to

consider all the evidence and to carefully read the memoranda of interview, he proceeded

to remind the jury that Mr Freeman was charged only in respect of the Garvey robbery

and that only the evidence pertaining thereto was relevant in respect of his charges. The

“Members of the jury, though it is a matter for yourselves, it seems to me that you

are particularly reliant on the evidence of John Cahill when it comes to Mr Freeman.

Whilst Mr Cahill remained in the company of Philip Roche and Patrick Roche --

whilst Mr Cahill remained in the company of Philip Roche and Patrick Roche -- I'll

start again. Whilst Mr Cahill remained in the company of Philip Roche and Patrick

Roche remained in the company of Christopher Stokes - this is after the incident

when they're changing cars - Mr Freeman headed off in his own car or headed off in

another car, after having been dropped off at a location by John Cahill. The foreign

currency in the envelope, which Mr Cahill says Mr Freeman found in the car during

the getaway from the Garveys, is capable of corroborating Mr and Mrs Garvey's

testimony in relation to the money stolen, but that does not corroborate Mr Cahill's

evidence that Mr Freeman was there. It seems to me that you are reliant greatly

on Mr Cahill's testimony in respect of Mr Freeman's involvement in this matter and I

have already warned you in relation to accomplice evidence. That said, however,

as I have said to you, you are entitled to convict on the evidence of an accomplice,

as long as you have carefully considered the dangers that I have outlined to you in

150. On the conclusion of the judge’s charge, counsel on behalf of each appellant applied for

the jury to be discharged and raised requisitions in respect of the charge. The application

to discharge the jury was made on the basis that the trial judge misstated the evidence

which could corroboration the accomplices’ testimony in the case of Mr Freeman. In the

case of Patrick Roche and Philip Roche, it was contended that the trial judge’s charge

severely prejudiced the appellants in general terms and also in terms of the manner in

which he addressed the accomplice testimony and inferences. The application to

discharge the jury was refused and the trial judge re-charged the jury on corroboration in

“I want to speak to you about corroboration in the context of evidence given by

accomplices in the first instance. Remember, accomplices are people who by their

own admission, were present at a crime. They are part of -- they see part of, or

they see all of what happened at a crime. For this reason, they have information

about the crime which, by and large, is correct, clearly, they'd been there. The big

question for you, members of the jury, is not whether they're telling the truth about

what they saw, but whether they're telling the truth about who was with them. It

is for this reason that I gave you the warning about the danger of convicting in the

absence of evidence which corroborates the story of an accomplice. So, whilst you

can convict on the basis of accomplice evidence alone, I warned you that you

should find some evidence which is capable of independently supporting the

evidence which those accomplice witnesses give. And that evidence would be such

as to tie or link the accused person to the commission of a crime. So, if I caused

you to be confused about all of this in my charge, I apologise, and I will now try to

give you some clarity. So, some of the evidence which you have heard from

William Gammell and Mr Cahill is capable of corroborating matters in respect of

which other people have given evidence, but these bits of evidence do not or are

not capable of corroborating Gammell's and Cahill's evidence against the accused.

These bits of evidence remain perfectly valid, they just can't corroborate what

Gammell and Cahill have said. But as I said to you, they remain perfectly valid.

They remain important pieces of evidence, which you can, if you see fit, consider as

part of your deliberations. And those pieces of evidence that I'm referring to are by

and large examples of circumstantial evidence about which I have spoken to you

earlier and other people have spoken to you earlier. So, things like the burnt-out

BMW, the tyre marks, the finger from the glove, the balaclava that, or the

balaclavas that Mr Gammell and Mr Cahill say that they saw the accused wearing,

and any other references to balaclavas, other than in the '06 BMW outside of Cork,

I'll come to that shortly. When they say they saw handcuffs, weapons, cable ties,

that sort of thing. When they say they saw Alan Freeman counting money; all of

these things are capable of corroborating other people's evidence, but they're not

capable of corroborating the evidence of the two accomplices, that is William

Gammell and John Cahill. So, what evidence then is there open to you which is

capable of corroborating John Cahill's evidence? Well, the following; the glass

shards found on Pat Roche's clothing are capable of amounting to corroboration of

Patrick Roche's involvement in the Garvey robbery, capable of doing that, but it is

up to you to decide on the weight of that evidence and the importance to which you

attach that evidence, as to whether or not you find that evidence to be

corroborative. So, that evidence is capable of corroborating elements of Mr Cahill's

evidence, but it's up to you to decide whether or not it does so.

The second area where we have evidence that is capable of corroborating Mr

Cahill's evidence in relation to the Garvey robbery, is the discovery of the handcuff,

money, one balaclava, one ski mask and the screwdriver in the '08 BMW, this is the

one on the Doneraile Road, outside of Buttevant, in which Mr Stokes and Pat Roche

were travelling. You'll remember that that was the one that was stopped by the

guards. So, the items that were found in that car, together with the time at which

they were stopped, those matters are capable of providing corroboration in relation

to Mr Cahill's evidence, as against Pat Roche in respect of the Garvey robbery. I

turn now to Mr Gammell, what evidence can you consider in relation to

corroborating his testimony? The DNA evidence which was extracted from the

samples that were taken from the balaclava and the glove and they were both in

the Dunnes Store bag, which were allegedly dropped or hidden by Mr Gammell,

after having been instructed to set fire to them, you remember that evidence, and

this is after the Creed robbery. The samples that were extracted from those two

items, were in the words of the scientist from the Forensic Ireland laboratory, they

matched the DNA profiles that were extracted from swabs taken from Patrick and

Philip Roche, and that evidence is capable of corroborating William Gammell's

evidence in relation to Patrick and Philip Roche's involvement in the Creed robbery.

151. The appellant submits that the judge’s charge was confusing and unfair to the appellant

and says that while discussing Mr Cahill’s evidence, the judge drew attention to his

assertion that the appellant had contact with an envelope containing foreign currency.

The judge advised the jury that Mr Cahill’s evidence was capable of corroborating the

evidence given by the Garveys in this respect. Issue is taken with the following:-

“She got the key, open the safe, gave them the envelope with the US dollars and

Sterling. Members of the jury, it is, of course, a matter for you to decide whether to

accept or reject the evidence of Mr Cahill has given you in respect of these matters

152. It is accepted on behalf of the appellant that at a later stage in his charge the trial judge

instructed the jury that the evidence of Mr Cahill concerning foreign currency was capable

of corroborating the Garvey evidence but was not capable of corroborating the accomplice

testimony. Nonetheless, it is contended that as the trial judge’s comments came about in

the course of his summary of Mr Cahill’s testimony, the jury were left in a state of

153. It is submitted that the suggestion that Mr Cahill’s evidence was somehow corroborated

by Mrs Garvey’s testimony concerning the envelope in some way bolstered the evidence

of the accomplice was incorrect and unfair to the appellant. The application was made to

154. The appellant argues that the trial judge’s recharge of the jury on this issue did not clarify

the issue as he re-iterated the evidence which was not capable of corroboration and

acknowledged that they were still “important pieces of evidence” capable of corroborating

155. In short, the appellant submits that the trial judge failed to make clear to the jury that

there was no corroboration of John Cahill’s evidence insofar as he implicated Alan

156. The appellants submit that the trial judge did not correctly address the issue of

corroboration or identify correctly pieces of evidence capable in law of corroborating the

testimony of the accomplices. Moreover, it is contended that the trial judge displayed a

partiality for the prosecution throughout his charge to the jury, as shown by his

comments on the accomplice evidence of Mr Cahill and Mr Gammell. In this regard, the

bulk of the submissions relate to Patrick Roche as the majority of the corroboration

evidence highlighted by the trial judge relates to him apart from the DNA evidence in

157. It is contended on behalf of Patrick Roche that the trial judge erred in treating every

independently verifiable detail of the events as recounted by Mr Cahill and Mr Gammell,

158. It is accepted that the trial judge sought to correct his comments following an application

to discharge the jury and requisitions, but it is submitted that the errors were so serious

that such were likely to skew the jury’s assessment of each item which was referred to as

159. The respondent submits that on the issue of corroboration, all of the appellants have

incorrectly identified the law on corroboration as the immutable formalistic rule set out in

R v. Baskerville [1916] 2 KB 658 when in fact the Irish courts have demonstrated

repeatedly that corroboration is a flexible concept. The respondent points to The People

(DPP) v. Gilligan [2006] 1 IR 107 where Denham J. concluded that circumstantial

evidence can be corroborative evidence and endorsed the following definition of

“Independent evidence of material circumstances tending to implicate the accused

160. Regarding the submissions of Alan Freeman, the respondent refutes the assertion that

there was no corroborative evidence in relation to the accomplice evidence of John Cahill.

The respondent submits that the evidence of the Garveys, of a white envelope filled with

foreign money being handed over to the raiders, was capable of corroborating a material

particular of the account of Mr Cahill that he saw Alan Freeman counting money from a

white envelope. The respondent submits that The People (DPP) v. Meehan [2006] 3 IR

468 and The People (DPP) v. Gilligan [2006] 1 IR 107, both concerned with accomplice

evidence, establish that direct evidence is not necessary for corroboration, the evidence

must simply show or tend to show a link. In any event, the respondent submits that if the

trial judge erred in law in his recharge to the jury, it was in favour of the appellant.

161. In relation to Patrick and Philip Roche, the trial judge identified evidence capable of

corroborating the accomplice evidence of John Cahill and William Gammell:-

“You've heard the evidence given by both the Creeds and the Garveys that the

people involved in the robberies were wearing balaclavas and you also heard that

gloves were worn. This evidence is capable of corroborating that testimony, but

make sure that any conclusions you draw in respect thereof are logical. This

evidence is highly suggestive that a glove and balaclava, which came from inside of

the Dunnes Stores bag, were, at some stage, worn by Patrick Roche and Philip

Roche. You should then consider all of the evidence and satisfy yourself in relation

to the circumstances by which the Dunnes Stores bag came to be at that location

with those items in it. You've heard the evidence in that respect from Mr Gammell,

who said that after he collected Patrick and Philip Roche from the Creed house, they

took their clothes off and put them in a Dunnes bag. He was told to burn the

“In relation to Mr Cahill, he gave a statement -- and I've warned you that it is

dangerous to convict somebody on the basis of an accomplice statement alone, and

I've just told you as well that you're perfectly entitled to consider all of the other

evidence in isolation to the evidence given by both Mr Cahill and Mr Gammell. But

in respect of Mr Cahill's evidence, there are certain matters that you can consider

that are capable of corroborating his statement. The BMW that was at the ESB pole

station in Monard, that was stolen from Mr Cruise. That is a piece of evidence

which is capable of corroborating Mr Cahill's statement because he was the man

who ultimately drove that car. You heard evidence that there were cable ties and

two sets of handcuffs in the possession of the people that were at the ESB pole

station in Monard before the Garvey robbery. And you've heard evidence that the

Garveys were restrained by handcuffs, by cable ties, and that the people in the

house were wearing balaclavas. Once again, that is evidence which is capable of

corroborating. It's a matter for you as to what weight you attach to it. The gun,

the screwdriver, the baseball bat, they were all described by the raiders and they

were described as being in the possession of certain individuals that left Sunville

House by Mr Gammell. That is capable of corroborating his testimony; a matter for

162. The classic definition of evidence constituting corroboration was stated by Reading L.J in R

"We hold that 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 is being committed,

but also that the prisoner committed it. The test applicable to determine the nature

and extent of the corroboration is thus the same whether the case falls within the

rule of practice at common law or within that class of offences for which

corroboration is required by statute. The language of the statute, 'implicates the

accused,' compendiously incorporates the test applicable at common law in the rule

of practice. The nature of the corroboration will necessarily vary according to the

particular circumstances of the offence charged. It would be in high degree

dangerous to attempt to formulate the kind of evidence which would be regarded as

corroboration, except to say that corroborative evidence is evidence which shows or

tends to show that the story of the accomplice that the accused committed the

crime is true, not merely that the crime is being committed, but that it was

The corroboration need not be direct evidence that the accused committed the crime; it is

sufficient if it is merely circumstantial evidence of his connection with the crime."

163. The concept of corroboration has been considered in numerous cases in this jurisdiction.

In The People (DPP) v. Gilligan [2006] 1 IR 107, the Court moved from the formalistic

approach in Baskerville in favour of a more pragmatic concept of corroboration. Denham

J. at p.140 of Gilligan observed that there are three strands to corroborative evidence:

“Thus there are three strands to corroborative evidence. First, that it tends to

implicate the accused in the commission of the offence. It renders it more probable

Secondly, it should be independent of the evidence which makes corroboration

Thirdly, it should be credible. It should be supporting evidence which has a degree

164. On the aspect of the independence of the corroborative evidence, Denham J. emphasised

a common-sense approach and cited the words of Lord Reid in DPP v. Kilbourne

"There is nothing technical in the idea of corroboration. When in ordinary affairs of

life one is doubtful whether or not to believe a particular statement one naturally

looks to see whether it fits in with other statements or circumstances relating to the

particular matter; the better it fits in, the more one is inclined to believe it."

“Thus the nature of corroborative evidence depends on the facts and circumstances

of the case and the defence of an accused. Corroborative evidence establishes a

link which tends to prove that the accused person committed the offence.

Corroboration may be found in a simple fact. For example, in Attorney-General v.

O’Sullivan [1930] I.R. 552, a case of sodomy, corroborative evidence was evidence

165. Denham J. then considered the importance of an accused’s defence in the context of

determining whether evidence was capable of amounting to corroboration: –

“The nature of the defence may be critical in determining what is corroborative

evidence. If, for example, the defence is that a person was not at a premises then

evidence by that person as to the interior of the premises may be corroborative, as,

there being no suggestion that the person had been there for another reason, it

166. When considering the issue of the credibility of the corroborating evidence, Denham J.

concluded that the evidence should be supporting evidence which has a degree of

credibility, but stressed that the idea that corroboration is a two-stage process is not

correct. In this regard she cited the case of R v. Hester [1973] A.C. 296 at p. 315, where

“The purpose of corroboration is not to give validity or credence to evidence which

is deficient or suspect or incredible but only to confirm and support that which as

evidence is sufficient and satisfactory and credible; and corroborative evidence will

167. In finding that corroboration is not a two-stage process, Denham J said: –

“Corroboration arises where the evidence to be corroborated has a degree of

credibility. However, corroboration is not a two-stage process. It is not a process in

which there is first a determination as to whether a witness is credible, and, if he is

168. Therefore, the flexibility of the concept of corroboration cannot be in doubt. Issue is

taken on behalf of Alan Freeman that the trial judge, in defining corroboration and in

providing common day-to-day examples of corroboration, erred in confusing

corroboration and supporting evidence. But what is corroboration except evidence which

is proffered in order to confirm, support or verify the testimony to be corroborated?

169. In The People (DPP) v. Meehan [2006] 3 IR 468 Kearns J., in considering the difficulties

caused by the rather rigid definition of corroboration in Baskerville, was of the view that

the definition seemed to be unsound in principle. He observed that prior to Baskerville,

there was some controversy over whether corroborative evidence should implicate the

accused or whether it was enough that it strengthens the credibility of the accomplice.

Kearns J. considered the views of the Supreme Court of Canada in Vetrovec v. The Queen

[1982] 1 S.C.R. 811 to be particularly relevant, commending the views of the following

“With great respect, on principle Lord Reading's approach seems perhaps over-

cautious. The reason for requiring corroboration is that we believe the witness has

good reason to lie. We therefore want some other piece of evidence which tends to

convince us that he is telling the truth. Evidence which implicates the accused does

indeed serve to accomplish that purpose but it cannot be said that this is the only

sort of evidence which will accredit the accomplice. This is because, as Wigmore

said, the matter of credibility is an entire thing, not a separable one:

‘. . . whatever restores our trust in him personally restores it as a whole; if we find

that he is desiring and intending to tell a true story, we shall believe one part of his

story as well as another; whenever, then, by any means, that trust is restored, our

object is accomplished, and it cannot matter whether the efficient circumstance

related to the accused's identity or to any other matter. The important thing is, not

how our trust is restored, but whether it is restored at all [Vol. VII, para. 2059, at

These views may be taken as reflective of the proposition, which certainly

commends itself to this court, makes little sense to relate unreliability to classes of

persons – be they accomplices, children or complainants in sexual cases, rather

170. When assessing the definition of corroboration, Kearns J. emphasised the importance of

the defence set up by an accused and cited The People (A.G.) v. Levison [1932] IR. 158,

“‘What constitutes corroboration must depend on the facts and circumstances of

each particular case, on the defence set up by the accused, and on the nature of

the question to be determined by the jury … it seems to us evidence of any material

circumstance tending to connect the accused with the crime and to implicate him in

it would appear to us to be corroboration in the circumstances of this case.’

“An important feature evident in this definition is that that which constitutes

corroboration may depend in an individual case on the ‘defence set up by the

Corroboration as it has been defined and applied in this jurisdiction, does not have

to directly prove that the offence was committed. It is sufficient if it confirms a

material particular of the witness's evidence implicating the accused. This Court in

The People (DPP) v. Murphy [2005] 2 I.R.125 (at 159) approved as correct the

reference to corroboration as it appears in Criminal Evidence (2nd ed.) by Richard

“Material particular' simply means a material fact i.e. a fact which in the

circumstances of the case and the issues raised in it is material to the guilt or

innocence of the accused of the offence charged. It does not mean that the

corroborative evidence has to corroborate the whole of the evidence of the witness

who requires corroboration. If this were required the evidence of the complainant

or accomplice would be unnecessary. The whole case could be proved by the

corroborative evidence. It is sufficient therefore if there is confirmation of a

material part of the witness's evidence implicating the defendant in the offence.”’

172. In our view corroborative evidence must be viewed in a pragmatic way. The purpose of

corroboration is, after all, simply to strengthen or support the evidence desiring of

173. The trial judge set out the ingredients of corroboration in simple terms in his charge to

“It’s independent evidence which tends to show that the principal evidence is true”.

He then proceeded to give examples of ordinary everyday situations which could amount

“So, the ingredients are that the corroborative evidence should be independent and

it should, in a criminal context, tend to implicate the accused person in the

174. At a later stage in his explanation of corroboration in the context of the accomplices, he

“You might want to look at the corroborating evidence first, see what weight you

attach to it and then consider the accomplices' evidence. Then, consider the

evidence given by the accomplices in light of whatever corroboration they accept;

do they accept the evidence of the accomplice, so as to be satisfied beyond

175. The move from the classic definition of evidence capable of constituting corroboration

towards a more pragmatic approach is well-established in the jurisprudence. There is

nothing technical about corroboration, moreover, circumstantial evidence can constitute

corroboration as observed by Denham J. in The People (DPP) v. Gilligan [2006] 1 IR 107.

A more nuanced approach to the definition in Baskerville, with its formalistic, narrow

approach is to be preferred and more fluid, common-sense approaches are evident as

reflected in Gilligan and The People (DPP) v. Meehan [2006] 3 IR 468.

176. It is difficult to find fault with the very straightforward definition of corroboration given by

the trial judge in the present case. In explaining the meaning of corroboration to the jury,

he made it quite clear to them that there are three strands to corroborative evidence,

namely that it tends to implicate the accused in the commission of the offence, that it

should be independent and that it should be credible. He highlighted that it is very

important that they had a good understanding of the concept of corroboration because of

the presence of accomplices in the trial. He then warned the jury of the dangers of

convicting on the uncorroborated evidence of an accomplice and he did so repeatedly, and

it is fair to say that no issue was taken with the warnings given by the trial judge in this

respect. Moreover, the trial judge explained to the jury that it was his function to inform

the jury whether evidence was capable of amounting to corroboration, but it was for the

jury, as the finders of fact, to decide whether any piece of evidence was in fact

corroborative. The trial judge then parked the issue of corroboration and addressed the

jury on other matters, returning in his summary of the evidence to the evidence that was

potentially corroborative. It is with this aspect of the charge that the appellants take

177. In each case the judgment must be made by the trial judge in light of all of the

circumstances and the defence advanced as to whether material is potentially

corroborative. The crux of the complaint advanced on his behalf is that there was no

evidence in the case capable of corroborating the testimony of John Cahill and this was

not made clear to the jury. The argument is advanced that when discussing the evidence

given by Mr Cahill, the trial judge gave the impression that the evidence of Mrs Garvey in

particular concerning the envelope containing cash in dollars and sterling, was capable of

corroborating John Cahill’s testimony. However, the passage relied upon by the appellant

does not give this impression in our view. It is worth looking at the passage before the

“…. and Anne Garvey also said this – into a white envelope, and this evidence

corroborates the evidence given by the Garvey’s in relation –, this evidence is

capable of corroborating the evidence given by the Garvey’s in relation to the

“She got the key, opened the safe, gave them the envelope would be US dollars

and Sterling. Members of the jury, it is, of course, a matter for you to decide

whether to accept or reject the evidence that Mr Cahill has given you in respect of

these matters up to this point, and it is entirely a matter for you”.

178. At a later stage in his charge the trial judge again addresses the issue of the foreign

currency in the envelope and very clearly indicates to the jury that Mr Cahill’s testimony

in this respect is capable of corroborating the evidence given by Mr and Mrs Garvey in

respect of the money stolen but that it did not corroborate Mr Cahill’s evidence that Mr

Freeman was there. The trial judge emphasised that the jury were very reliant on the

testimony of Mr Cahill so far as the allegation against Mr Freeman was concerned. In so

saying, the trial judge reiterated that the jury were entitled to rely on the evidence of an

accomplice so long as they carefully considered the dangers which he had outlined to

them in respect thereof. As has been repeatedly emphasised by this Court, a jury should

only be discharged as a last resort. We have already concluded that the trial judge

properly charged the jury as to the meaning and definition of corroboration and we are

satisfied that he did not err in the manner in which he addressed the evidence of the

179. While the trial judge did not expressly indicate to the jury that there was no evidence

capable of amounting to corroboration of John Cahill’s testimony concerning Alan

Freeman, in recharging the jury on the issue of corroboration, he identified the evidence

which was capable of corroborating John Cahill’s evidence concerning Patrick Roche. It is

quite clear that the trial judge instructed the jury that the counting of money was not

capable of corroborating the evidence of Mr Cahill, the accomplice. While it would of

course have been preferable had the trial judge expressly stated that there was no

evidence capable of corroborating John Cahill’s testimony concerning Alan Freeman, the

thrust of his closing remarks to the jury make it quite clear that this was in fact the case.

180. It is contended on behalf of these appellants that the trial judge made comments which

were prejudicial and adverse to them. Firstly, it is submitted that the judge, through his

comments, disclosed that he was in favour of the respondent’s case. In this respect it is

contended that when addressing the evidence of the accomplice William Gammell, the

trial judge’s comments were unbalanced in favour of the respondent.

181. The defence case was that Mr Gammell was motivated by fear of the Gardaí. He said that

he had been beaten up at the time of his arrest. Issue was taken with much of the judge’s

“Ask yourself the question of whether or not there has been any contact with

members of an Garda Síochána during the intervening time periods. Ask yourself

what motivations drive Mr Gammell. I’m not telling you that you need to approach

the matter in this way; I’m simply making suggestions to you as to what you may

wish to consider, what do you take. You are masters in respect of all of the

182. Issue is also taken with the manner in which the trial judge addressed the evidence of

John Cahill, wherein the appellant submits that the trial judge conveyed to the jury that

the accomplice was an honest and truthful witness. In this respect, reliance is placed on

the judge’s comments concerning the cross-examination of Mr Cahill.

183. Criticism is also made of the trial judge’s charge in the context of his concluding remarks

“And you can consider then the matters that were – the items that were found in

the car, the handcuffs, the money, the glove, the balaclava, these are items of

circumstantial evidence. But you can, if you think that it is appropriate and if you

can’t wait to them, you can build them, layer upon layer, until such time as you

have a stronger piece of evidence. And don’t forget of the requirement that you

have and that remains with you at all times is that you must be satisfied beyond

reasonable doubt in relation to all of this, but you can use all of those pieces of

evidence. Then there is the evidence of the accomplices, and I have given you the

184. Issue is also taken with the manner in which the trial judge to address the evidence of

one Robert Mockett, where it is contended that the trial judge, commented adversely on

the defence version of events by way of cross-examination of the witness where the trial

“members of the jury, it is a matter for you to assess the credibility of this witness,

in light of the two, conflicting versions of events, but it’s difficult to see what great

185. In respect of Patrick Roche, it is submitted that the trial judge displayed a rhetorical slant

in favour of the prosecution when detailing in his charge the circumstances of the

186. Both appellants submit that throughout the charge the trial judge displayed a bias

towards the prosecution which resulted in an unbalanced charge and adversely affected

187. In relation to Philip and Patrick Roche, the respondent submits that the appellants have

lost sight of what can constitute corroboration and there were various strands of evidence

which could have been treated by the jury as corroborative of the accomplice evidence.

188. The respondent submits that the narrower approach taken by the trial judge in his

recharge was to the benefit of the appellants. However, key pieces of corroborative

evidence remained. In relation to Patrick Roche there were the contents of the car in

which he was found, the shards of glass on his person and the layers of clothing he was

wearing. In relation to Philip and Patrick Roche, there was the DNA material found in the

189. The respondent concludes that, taken as a whole, the trial judge’s charge was fair and

balanced, and it was always emphasised that it was a matter for the jury to consider the

190. We are satisfied on a careful consideration of the entirety of the judge’s charge, that the

criticisms on behalf of the appellants Patrick and Philip Roche are misplaced. In his

“Something that I'm going to be saying to you about anything I say about the

evidence or any comment I make about the evidence is that it is just that, a

comment. You're masters of the facts. It is your job to make decisions on the

basis of the evidence that you've heard here, and I'm going to be explaining that

more clearly to you. So, when I do eventually come to read the evidence, if your

version or if your recollection or if any notes you've taken clash with mine, go with

yours, okay. I'm not infallible in relation to any of this. So, what do I do here?

I'm the Judge, I preside over the case. I'm in charge of the law, as you have been

told, and you have to accept the law as directed by me. My job is to ensure that a

fair trial is conducted according to the rules of law. I'm obliged to be absolutely

neutral in respect of the case and neither in one side's corner or the other. So, I'm

191. When the trial judge was requisitioned on the basis that he had trespassed on the jury’s

territory in contending that the accomplice Mr Cahill was upfront about his past criminal

“Now, something that I said to you, members of the jury, that I want you to ignore,

is that I said to you that Mr Cahill had been reasonably upfront regarding his own

past involvements in criminality. It's not a matter for me to say that, members of

the jury, you've heard the evidence, you've seen all of the parties involved, that is

a matter for you entirely and you alone, and I apologise for having strayed into

your territory in that respect. It is a matter solely for you to decide on the

credibility of Mr Cahill and any other witness and any other piece of evidence that

192. We are entirely satisfied that even if the jury did not take on board the judge’s instruction

from the outset, that they were the masters of fact, and there is no reason to believe that

any jury would ignore such an instruction. The judge addressed any possible imbalance

by addressing the jury on foot of a requisition. We are satisfied that there was no error in

Corroboration of the accomplice testimony – John Cahill and William Gammell

193. Patrick and Philip Roche submit that the trial judge identified independently verifiable

detail of the events recounted by the accomplices as corroborative of their account in

respect of the Garvey and Creed aggravated burglaries. The complaint made in this

respect is that the evidence identified by the trial judge did not in fact connect the

appellants to the crimes. Therefore it is argued that an essential ingredient of

194. In his charge concerning the aggravated burglary in the Garvey home, the trial judge, in

summarising the evidence to the jury, stated that the evidence disclosed that on 16th

April 2012, members of the Garda Síochána were on duty in Buttevant, when they

observed two vehicles and decided to follow the first vehicle which had accelerated away

from the Garvey’s. This vehicle was a BMW with a 08 registration plate. In the vehicle was

found the driver, Christopher Stokes and a passenger, Patrick Roche. On searching the

vehicle a sum of money was found, a black balaclava, a pair of gloves and a screwdriver.

Also found were a pair of handcuffs and a black ski mask. The judge then said:-

“The balaclava, gloves, money and handcuffs are, ladies and gentlemen - I'm

literally commenting on the evidence, their evidence - and though circumstantial

evidence, on an individual basis each one of them may not amount to much, but

when you put all of them together and you look at them cumulatively, they're

capable of corroborating evidence that was given by the Garveys. It is a matter for

you as to whether or not you are satisfied that they do corroborate the evidence

195. It is undoubtedly so that circumstantial evidence may constitute corroboration. These

items which the trial judge indicated were capable of corroborating the testimony of the

Garveys, pieces of circumstantial evidence, when considered together could be said by a

jury to be of sufficient strength to not only corroborate that the offence itself was

committed but also to connect the appellant with the commission of the offence.

196. The duty of the trial judge was to identify the pieces of circumstantial evidence which

were capable of amounting in law to corroboration and this is in fact precisely what the

trial judge did in this instance. Having done that he then proceeded to direct the jury as

to how they should treat circumstantial evidence in the context of amounting to

corroboration. We cannot identify any error in the manner in which the trial judge

197. The appellants criticise the manner in which the trial judge highlighted the evidence given

by the Garveys of the aggravated burglary, having pointed to the items found by the

Gardaí in the car in which Christopher Stokes and Patrick Roche were travelling. However,

it is clearly the position that the evidence of Mr Cahill was capable of corroborating their

198. As regards the aggravated burglary in the Creed home, the trial judge summarises the

evidence including the evidence of the forensic scientist Mr Hoade, who analysed the

items which have been discovered in those Dunnes Stores bags which the accomplice Mr

Gammell said he had been asked to dispose of but in fact had hidden and subsequently

located for the Gardaí. Various items were found in the Dunnes Stores bags including a

hooded top, runners, gloves, balaclava and the fingertip of a glove from which Mr Hoade

sought to conduct a forensic analysis. DNA profiles were extracted from the woollen

gloves and also from the black balaclava and he concluded that the DNA profile from the

glove matched that of Philip Roche’s DNA profile and the DNA profile generated from the

inside of the balaclava matched Patrick Roche’s DNA profile. The trial judge then