DPP -v- Liam Bolger [2013] IECCA 6 (14 March 2013)

Judgment Title: DPP -v- Liam Bolger

Neutral Citation: [2013] IECCA 6

Court of Criminal Appeal Record Number: 292/09

Date of Delivery: 14/03/2013

Court: Court of Criminal Appeal

Composition of Court: Denham C.J., de Valera J., McGovern J.

Judgment by: Denham C.J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Denham C.J.	Link	Refuse Leave to Appeal -v- Conviction

Outcome: Refuse Leave to Appeal -v- Conviction

THE COURT OF CRIMINAL APPEAL

CCA No. 292/09

Denham C.J.
de Valera J.
McGovern J.

Between/

The People

at the suit of the Director of Public Prosecutions

Respondent

and

Liam Bolger

Applicant

Judgment of the Court delivered on the 14th March, 2013, by Denham C.J.

1. This is an application for leave to appeal by Liam Bolger, the applicant, who is referred to as “the applicant”, against conviction.

2. The applicant was convicted on the 17th November, 2009, at the Central Criminal Court (Carney J.), for the offence of murder, and was sentenced to life imprisonment, the sentence to run from the 13th September, 2008.

3. The applicant was charged as follows:-

Statement of Offence

Murder, contrary to common law and as provided for by section 4 of the Criminal Justice Act, 1964.

Particulars of Offence

Liam Bolger, on 13th September, 2008 at Byrnes Bookmakers, Killester Avenue, Donnycarney, in the County of the City of Dublin, did murder one Christopher Barry.

4. The applicant has filed eight grounds of appeal against his conviction:-

(i) The Learned Trial Judge erred in law and in fact in permitting the admission into evidence of photographic stills of an unidentified white van at various locations in Dublin.

(ii) The Learned Trial Judge erred in law in circumstances where he found the applicant to have been unlawfully detained by Garda Ronan Clogher and subsequently arrested at a time when he was unlawfully detained and accordingly the fruits of that arrest ought to have been excluded from the evidence.

(iii) The Learned Trial Judge erred in law and in fact in allowing the admission into evidence of an interview with the applicant whilst in Garda custody, in which interview sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007, were invoked.

(iv) The Learned Trial Judge erred in refusing an application for a direction at the conclusion of the prosecution case.

(v) The Learned Trial Judge erred in law and in fact in the manner in which the jury were re-directed when requested by them on the issue of inferences to be drawn under sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act, 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007.

(vi) The Learned Trial Judge erred in law and in fact in re-charging the jury on the issue of the consequences of the applicant's original solicitors’ advice in respect of inferences to be drawn thereto.

(vii) The trial was unsatisfactory by reason of the reliance, by the prosecution, upon phone records which sought to demonstrate the presence of the applicant in the vicinity of the murder of Mr. Christopher Barry, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence, taken at its highest, demonstrated nothing more than mere presence at a particular place.

(viii) The trial was unsatisfactory by reason of the reliance by the prosecution upon video surveillance evidence of an unidentified motorbike and rider travelling through certain locations in Dublin and similar evidence of an unidentified white van travelling through certain locations, in Dublin, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence neither identified the Accused nor any other person as being responsible for the movements of either the said motorbike or van.

5. The State agreed that the applicant was entitled to argue the additional grounds of appeal (arising out of Damache v. Director of Public Prosecutions [2012] IESC 11 (Judgment of the 23rd February, 2012, by Denham C.J.)) contained in a motion for leave to amend the grounds of appeal and this appeal was listed as including these additional grounds. The additional grounds are:-

(i) The applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence in the applicant's trial which was obtained in a search of the applicant’s home at 9 Homelawn Gardens, Tallaght, on the 13th September 2008 carried out pursuant to a search warrant obtained under s. 29 of the Offences Against the State Act, 1939 (as amended) where the said provision has been found repugnant to the Constitution on the 23rd February, 2012, thus rendering the applicant’s trial unsafe and unsatisfactory by reason of the admission of evidence so obtained in breach of the applicant's constitutional rights.

(ii) Further or in the alternative to the foregoing, the applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence concerning test results on a hatchet found at the applicant’s address and evidence concerning mobile phones found at that address in circumstances where the search warrant power employed to search the applicant’s home is unconstitutional, thereby rendering the evidence so obtained and presented in the trial to be inadmissible.

(iii) Such other grounds as may be advanced at the hearing of this case with the leave of this Honourable Court.

6. Oral and written submissions were advanced to the Court on behalf of the applicant and on behalf of the Director of Public Prosecutions

Counsel for Applicant
7. Counsel for the applicant moved the application by making submissions in relation to five issues, and the judgment will address those issues sequentially.

The Five Issues
8. The five issues are:-

(i) The legality of his arrest. Counsel submitted that there were consequences arising from an alleged unlawful arrest on the 13th September, 2008.

(ii) The Damache issue.

(iii) The inference from silence issue. Counsel submitted that the learned trial judge erred in relation to his charge and re-charge to the jury on the issue of drawing inferences from the applicant’s silence during interviews and questions put to him under s. 18, 19, 19A of the Criminal Justice Act, 1984, as, respectively, substituted by s. 28 and s. 29 and inserted by s. 30 of the Criminal Justice Act, 2007.

(iv) The CCTV footage issue. Counsel submitted that the trial was unsatisfactory by reason of the reliance upon evidence of the applicant’s phone records and CCTV evidence to show an agreement by the applicant to act in a joint enterprise for the murder in issue when the evidence could not be probative of such matters.

(v) The direction issue. Counsel submitted that there was a failure by the learned trial judge to give a direction at the end of the prosecution case.

The legality of his arrest
9. The sighting of a Renault Kangoo van with the registration number identified initiated action by An Garda Síochána in Tallaght. At 4.15 p.m. the van was observed by Garda Clogher and Detective Sergeant McManus driving out of Avonbeg Park. The driver was later identified as the applicant. The gardaí followed the van and viewed activities outside the applicant’s home, including the wiping of the passenger door of the van. The applicant drove the van away from his home and the gardaí followed. At 4.45 p.m. the applicant was stopped by gardaí at Avonbeg Gardens. There were discussions between the gardaí, and the applicant was invited to produce his documents. During this time the applicant signed Garda Clogher’s notebook, after caution, admitting the false name of Peter Byrne on the registration document for the vehicle, and ownership of a specific phone number. There was no arrest at this time.

10. The applicant was arrested on the 13th September, 2008 at 5.45 p.m. by Detective Sergeant Kelly. It was the applicant’s case that he had been placed in unlawful detention by Detective Garda Clogher from approximately 5 p.m. onwards before he was arrested at 5.45 p.m.. It was submitted that this tainted the arrest and subsequent detention and thus the exclusionary rule would apply to any evidence obtained.

11. On the 6th November, 2009, the trial judge at p. 32 lines 4 to 19 of the transcript ruled:-

“In relation to this issue the onus is on the prosecution to negative what is raised, to the standard beyond reasonable doubt. Having regard to the evidence as a whole, which has been heard here over two days, the only rational explanation of the totality of the evidence is that Mr. Bolger was being kept on ice until he could be arrested by Sergeant Kelly. The test would have been what happened had he tried to leave. Now he didn’t, in fact, try to leave but the guard he was in conversation with said twice in the course of his evidence, ‘Well, if that situation had arisen, I would have to think about the situation’, and consider his options. So if he isn’t sure in relation to the situation which was prevailing, how can I be sure to the standard of beyond reasonable doubt that he was free to go. Guard Clogher (sic) also dropped his guard and, in a moment of inadvertence to the position he was taking, referred to what was going on as ‘The detention’ so in all the circumstances it is impossible for me to be satisfied to the standard of beyond reasonable doubt that he was not being unlawfully detained, being kept on ice, for the purpose of the arrival of Sergeant Kelly for the purpose of arresting him.

Accordingly, I find that period of one hour or so to be unlawful, an unlawful detention, but I don’t see any infirmity in relation to the validity of the arrest of Sergeant Murphy or Sergeant Kelly. Jury back please.”

12. The first relevant arrest was by Detective Sergeant Kelly at 5.45 p.m., under s. 30 of the Offences Against the State Act, 1939. However, while the learned trial judge made a ruling that there was a detention which was unlawful, the first arrest of the applicant in relation to these proceedings was at 5.45 p.m. by Detective Sergeant Kelly, thus there is no issue of an arrest upon an arrest, or a necessity of a release prior to the arrest, and therefore, in all the circumstances of the case, there was no unlawful arrest. The Court would affirm the ruling of the learned trial judge that there was no infirmity in relation to the validity of the arrest.

13. As to the issue referred to as “detention”, between 5 p.m. and 5.45 p.m., this was at the side of the road; the applicant had been stopped by gardaí, he was cautioned and then signed Garda Clogher’s notebook admitting the false name of Peter Byrne on the registration booklet for the van and ownership of a telephone number. While the Court has considered the finding of the learned trial judge and the submissions of counsel, it does not believe that the matter warrants any consequent effect, in all the circumstances of the case. The arrest was based upon reasonable suspicion, which was independent of any issue of detention. Thus, the Court would dismiss this ground of appeal

The Damache Point
14. Counsel submitted that the applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence in the trial which was obtained in a search of the applicant’s home at 9 Homelawn Gardens, Tallaght, on the 13th September, 2008, carried out pursuant to a search warrant obtained under s. 29 of the Offences Against the State Act, 1939, as amended. The evidence in issue was a hatchet and telephones belonging to Jean Bolger (mother) and Emma and Wendy (sisters).

Does the decision in Damache apply to the applicant?

15. On the 23rd February, 2012, the Supreme Court, in Damache v. Director of Public Prosecutions [2012] IESC 11, granted a declaration that s. 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976), and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution, as it permitted a search of the applicant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person.

Submissions of the Applicant
16. (i) It was submitted that the applicant was not excluded from raising the admissibility of evidence obtained on foot of the s. 29 warrant because the applicant is not disbarred from raising the issue on appeal.

(ii) It was submitted that the applicant is entitled to raise the issue before the Court, as there was no finality to his proceedings, as his appeal has not been determined.

(iii) It was submitted that the applicant did not elect or acquiesce in the construction of an unconstitutional state of affairs as the Damache judgment occurred after his trial. Thus, counsel submitted, this case is different to the State (Byrne) v. Frawley [1978] I.R. 326 and Corrigan v. Irish Land Commission [1977] I.R. 317, as the constitutional invalidity of the jury system in Byrne and the composition of the Land Commissioners hearing the case in Corrigan were held in both cases to have been known to the parties at the time when the legal proceedings were conducted and determined.

(iv) The applicant argued that his proceedings were not yet finalised, that his appeal had been in the list of the Court of Criminal Appeal for some time as submissions were prepared.

(v) It was submitted that the applicant relied on the legal advice available to him at the time of the trial. It was stated that in light of the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Birney [2006] IECCA 58, [2007] 1 IR 337 at paragraphs 112 to113, it would have been surprising if advice was given to challenge the search warrant procedure at the trial since the Court in that case rejected arguments that a Superintendent independent of the investigation should issue a s. 29 warrant and also decided that the constitutionality of the section could not be argued in the court of trial.

(vi) At the trial the applicant challenged the admissibility of other aspects of the prosecution case against him, where he was informed of the opportunity to do so by his legal team.

(vii) In all the circumstances, it was submitted that the applicant is entitled to rely on the Damache judgment so as to ground arguments about the evidence obtained on foot of the search warrant.

Decision on Damache Issue
17. The applicant’s home was searched pursuant to a warrant issued under s. 29(1) of the Act of 1939, the warrant having been issued by Superintendent Seamus Kane on the 13th September, 2008, and a hatchet and mobile phones found.

18. However, no formal challenge to the legality of the search warrant was raised during the trial, nor was there any reference to the possibility of the infirmity of the legislation, for the record.

19. In A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 2 ILRM 481, [2006] 4 IR 88 at 143, paragraph 125, a general principle was stated by Murray C.J. (as he was then):-

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconstitutional. That is the general principle.”

20. The finality of a trial is at its conclusion. In this case the applicant’s appeal was pending and so it had not reached finality. Thus, applying this principle the Court permitted the applicant to raise and argue the Damache case.

21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal.

22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal.

23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner.”

There was re-enforcement of this point in State (Director of Public Prosecutions) v. O’Regan [2007] IESC 38, [2007] 3 IR 805 at 821, paragraphs 55 to 56, where Kearns J. stated:

“Secondly, while the jurisprudence in relation to the admission of new evidence was reviewed by the Court of Criminal Appeal when delivering its judgment, it is quite clear from the terms of its judgment that the Court of Criminal Appeal was mindful of the decision of this court in The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, in which judgments had been delivered a month previously. While that case was concerned with the raising of new grounds of defence on appeal (whereas the present application seeks to have fresh evidence admitted on appeal), the reality of the present application is that it is being made with a view to raising a different point by way of defence from anything offered at trial. In that sense there is a clear overlap or joint application of the decisions of the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No. 2) , and that of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Willoughby [2005] IECCA 4, (Unreported, Court of Criminal Appeal, 18th February, 2005) to the facts of the present case.

Dealing firstly with The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, I expressed in my judgment in that case the view that some error or oversight of substance, sufficient to ground an apprehension that a real injustice had occurred, must be demonstrated before the Court of Criminal Appeal should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to the court to explain why the particular point was not taken. Otherwise cases where a trawl through a transcript long after a conviction is recorded will continue to occur to see if some point can be found or some new case made which competent lawyers at the trial itself did not see fit to raise.”

24. Thus, in general, in deciding whether an issue may be raised on appeal, it is necessary to consider the trial to see if the matter was raised and, if so, whether there was a decision by the court of trial.

25. Once a strategy has been taken by an accused in a trial, then another approach may not be taken on appeal. The matter was addressed by Geoghegan J. in Cronin (No. 2) at 339, paragraph 20:-

“I agree with the view of the Court of Criminal Appeal that the applicant was defended with skill and competence at the trial. It would be wrong now to set aside the conviction on foot of matters which were deliberately never raised in requisitions unless this court were of the view that a fundamental injustice had been caused. I do not hold any such view.”

26. In Director of Public Prosecutions v. Hughes [2012] IECCA 209 (Judgment of the 2nd July, 2012, by Hardiman J.) the Court held that the Damache decision could not be applied to the applicant as he had pleaded guilty, and was out of time for appeal. The Court held:-

“Justice does not require that time for appeal be extended in order to permit the appellant to appeal [two] convictions for offences of which he confesses himself guilty. The considerations set out in the cases cited, and in particular the well known passage set out from the judgment of Henchy J. in Murphy v. Attorney General, provide ample basis for declining to re-open this case by extending the time for appeal, or otherwise.”

27. However, there was no plea of guilty in this case and finality not having been reached, the Damache case may be argued. But whether it is applicable depends on whether the issue was raised in the trial court.

28. In Director of Public Prosecutions v. Kavanagh, Farrelly and Corcoran [2012] IECCA 65 (Judgment of the 24th May, 2012, by Denham C.J.), the matter of the constitutionality of the warrants issued under s. 29 of the Act of 1939 was raised for the record during the trial. It was found in that case, at paragraph 52:-

“The constitutionality of s. 29 of the Act of 1939 (and, by extension, the warrants issued thereunder) was clearly before the court of trial, even if, as already noted, the Circuit Court Judge had no jurisdiction on this issue. Thus, for example, on the 18th May, 2009, Mr. F. Kavanagh S.C., counsel for Niall Byrne, submitted to the trial judge:-

‘I wish to say and submit to the Court that it is an unconstitutional provision and that it is also in breach of the European Convention on Human Rights in relation to Article 6 right to a fair trial and the Article 8 provisions concerning privacy. I am just simply putting it on the record.

[…]

I simply say that the investigating officer is effectively a Judge in his own cause and that it offends against two principles, guarantee of the inviolability of the dwelling under Article 40.5 of the Constitution and Article 8 of the European Convention on Human Rights and it also offends against the guarantee of a fair trial enshrined in Article 38 of the Constitution and that in issuing the warrant he was acting as a Judge in his own cause as head of the investigation. I say it is a breach of fair procedures because there is no impartial or independent assessment of the need for the warrant in the first place and I simply put that on the record.’”

Consequently, it was held that, the issue could be considered on appeal. The Court then applied the law stated in Damache, and thus that the applicants were entitled to rely on the finding of unconstitutionality, and it followed that the warrants issued under s. 29 of the Act of 1939 were invalid. Consequently, the applicants succeeded on this issue, the appeals were allowed, and the Court ordered a retrial of each of the applicants.

29. Similarly, in The People (Director of Public Prosecutions) v. O’Brien [2012] IECCA 68 (Judgment of the 2nd July, 2012, by Hardiman J.), the Court had to consider whether an appellant could rely on Damache. That was an appeal from the conviction in the Special Criminal Court of the 7th December, 2010, of membership of an illegal organisation. Detective Superintendent O’Sullivan had issued a warrant under s. 29 of the Act of 1939 for the search of Barry O’Brien’s house. The Court stated:-

“In the course of its ruling on the legality of the search and the subsequent arrest, the Special Criminal Court noted that the issue raised concerning the constitutionality of s. 29 was ‘obviously arguable’, but it also observed that ‘as a matter law this Court must rule against the defence on that submission’, given that the Special Criminal Court has no jurisdiction to pronounce upon the constitutionality of a statutory provision. The Court went on to reject the argument that the arrest was unlawful, saying that it was alleged that time:-

‘precipitating cause of the arrest was the finding of the money under the mattress. In fact, there were a number of items found before that and we’re satisfied that that was not the sole cause of the arrest. And we find the arrest to be valid under that heading.’

This ruling was, however, delivered over a year before the Supreme Court held in

Damache

that s. 29 of the Act of 1939 was unconstitutional.”

30. The Court considered then whether Barry O’Brien could rely on the Damache decision in his appeal. The Court referred to The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 64 and The People (Director of Public Prosecutions) v. Kavanagh [2012] IECCA 65. The Court summarised these decisions saying that in general an appellant would be entitled to gain the benefit of the finding of unconstitutionality where:-

“The matter has been raised at the court of trial and the appellant has taken no steps which suggests that he has acquiesced in or otherwise waived the point by, for example, pleading guilty to the charge. The criminal proceedings against the appellant have not been finalised and either a trial or an appeal from conviction is still pending.”

31. In the O’Brien case the appellant had pleaded not guilty, and his counsel submitted before the Special Criminal Court that in an appropriate proceedings s. 29 of the Act of 1939 might well be found to be unconstitutional. In fact he had also sought to raise the matter by way of judicial review. O’Brien v. Special Criminal Court [2009] IEHC 555

32. However, in this case the issue of the s. 29 warrants was not raised during the trial.

33. The conclusion in the Damache case was not an unexpected result. As recorded in Damache the Morris Tribunal [Report of the Tribunal of Inquiry set up pursuant to the Tribunal of Inquiry (Evidence) Acts 1921 – 2002 into Certain Gardaí in the Donegal Division] (Government Publications 2006) considered the proportionality of s. 29(1) of the Act of 1939. The conclusions and recommendations of Chapter 6 ‘The Burnfoot Module’ at paragraphs 6.23 to 6.24 stated:-

“The Tribunal is satisfied that it is preferable that the power to issue a warrant should be vested in a judge. With modern technology and rapid communications, there is no reason why a judge cannot be easily contacted by telephone, facsimile or e-mail or personally, for the purpose of making an application to him/her for a search warrant. A record can thereby be created, whether by tape or by the recording of the message received by facsimile or e-mail, or indeed by the prompt furnishing of a grounding information to the judge within a limited period after the application of, say, 24 hours, verifying the basis upon which the application was made, which record can then be filed for future reference. The judge can then make an independent decision.

Such a decision as to whether to grant the warrant would involve a balancing of the interests of An Garda Síochána and the investigation of the criminal offence and the constitutional or legal rights of the person whose premises is to be the subject of the warrant. There are very limited occasions upon which time would be so pressing as to make it impossible to follow such a procedure. In any event, a residual power for such eventuality could, perhaps, still be vested in a senior officer of the Garda Síochána to be used in exceptional circumstances.

The Tribunal, therefore, recommends that urgent consideration be given to vesting the power to issue warrants under section 29 in judges of the District or Circuit court. This, the Tribunal believes to be in keeping with best modern practice in this regard as exemplified in judgments of the European Court of Human Rights and judicial trends in Canada and New Zealand.”

In other words, it was plainly stated in 2006 that the frailty of the section raised an alarm as to its validity.

Decision on issue as to whether the applicant can rely on Damache
34. (i) Finality is a most important element in our legal system.

(ii) An appeal is the review of a trial, the run of the trial, and the decisions taken during that trial. It is not a hearing de novo.

(iii) Thus, while the proceedings are not yet finalised, they proceed as an appeal and not as a trial de novo.

(iv) In general, an issue not raised and determined during a trial may not be raised on an appeal.

(v) The applicant did not raise the Damache issue at his trial, as was done in Cunningham and Kavanagh and O’Brien.

(vi) On behalf of the applicant reference was made to People (Director of Public Prosecutions) v. Birney [2006] IECCA 58, [2007] 1 IR 337 at paragraphs 112 to 113. This case clearly indicated concern as to the constitutionality of s. 29 of the Act of 1939. While it stated the issue could not be determined in the Court of Criminal Appeal, it alerted persons to the possibility of raising the matter in another court, as was done in Damache. Thus, the applicant’s counsel would have known of the concerns raised by the Court in Birney. Yet no steps were taken by the applicant.

(vii) The general rule is that an applicant may not raise new issues not raised and determined at a trial. However, as stated in Cronin (No. 2) at 339 and 346, the Court could intervene if it were of the view that a fundamental injustice had been done or there was a reasonably explained substantial error leading to an apprehension of real injustice, which in the instant case would allow the Damache decision to be argued further.

(viii) Thus, prima facie, this is not a case where the Damache decision may be raised. However, the Court heard submissions on the evidence obtained pursuant to the s. 29 warrant, and the other grounds of appeal, to determine if a fundamental injustice has been done or there is a reasonably explained substantial error leading to an apprehension of real injustice.

The inferences from silence issue
35. Counsel submitted that the learned trial judge erred in relation to his charge and re-charge to the jury on the issue of drawing inferences from the applicant’s silence during interviews and questions put to him under s. 18, 19, 19A of the Criminal Justice Act, 1984, as, respectively, substituted by s. 28 and s. 29 and inserted by s. 30 of the Criminal Justice Act, 2007.

The applicant further contended that the learned trial judge erred in failing to provide adequate assistance to the jury on the considerations involved in the drawing of inferences from a person’s silence and, in particular, on how such inferences could be corroborative of the prosecution case. Further, that the learned trial judge erred in directing the jury as to a person’s right to silence on foot of legal advice provided to him.

Statutory Law
36. Section 18 the Criminal Justice Act 1984, referred to as “the Act of 1984”, which was amended through substitution by s. 28 of the Criminal Justice Act, 2007, referred to as “the Act of 2007” concerns inferences that may be raised from a person’s failure to account for certain marks and objects and provides:-

“(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—

(i) on his or her person,

(ii) in or on his or her clothing or footwear,

(iii) otherwise in his or her possession, or

(iv) in any place in which he or she was during any specified period,

and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

[…]

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.

[…]

(7) Subsection (1) shall apply to the condition of clothing or footwear as it applies to a substance or mark thereon.”

37. Section 19 of the Act of 1984, which was amended through substitution by s. 29 of the Act of 2007, concerns inferences that can be raised where there is a failure to account for presence at a particular place and provides:-

“(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it,

was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for his or her presence at a particular place under subsection (1).

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for his or her presence at a particular place might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

[…]

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of his or her presence at a particular place concerned was first given by the accused.”

38. Section 19A of the Act of 1984, which was inserted by s. 30 of the Act of 2007, deals with inferences which can be raised from an accused’s failure to mention particular facts during garda questioning which are then relied on in his defence and provides:-

“(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

(a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or

(b) when being charged with the offence or informed by a member of the Garda Síochána that he or she might be prosecuted for it, failed to mention any fact relied on in his or her defence in those proceedings, being a fact which in the circumstances existing at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material.

(2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure to mention a fact to which subsection (1) applies.

(3) Subsection (1) shall not have effect unless—

(a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure to mention a fact to which that subsection applies might be, and

(b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure occurred.

[…]

(5) The court (or, subject to the judge’s directions, the jury) shall, for the purpose of drawing an inference under this section, have regard to when the fact concerned was first mentioned by the accused.”

39. The resolution of the submissions on behalf of the applicant is that the applicant received legal advice and acted upon it.

40. The applicant was arrested by Detective Sergeant Gary Kelly, who informed him that he was arresting him under the provisions of s. 30 of the Offences Against the State Act, 1939, as amended. Detective Sergeant Kelly gave the applicant a legal caution and explained that it related to the unlawful possession of firearms where Christopher Barry was murdered at Killester Avenue. The unlawful possession of a firearm for which the applicant was arrested enabled the members of the gardaí to question the applicant for other related offences, provided the arrest was not a contrivance or a device for that related questioning. In this case, the applicant was arrested for an arrestable offence, and murder is a related arrestable offence. The arrest was not a colourable device, and thus the gardaí were entitled to question the applicant in relation to the murder. In this case the applicant was arrested for the unlawful possession of a firearm used in the murder of Christopher Barry.

41. The applicant was given an opportunity to consult his solicitor and was advised by his solicitor in relation to s. 18, s. 19 and s. 19A of the Act of 1984, as amended. The sections were also explained to him by members of An Garda Síochána.

42. The applicant’s situation was set out in the transcript of the trial on the 12th November, 2009 (Day 7), Detective Garda Brian Hanley was giving evidence. He gave evidence that he cautioned the applicant, informed him that the interview was being recorded, informed him that they were planning to question him under s. 28, 29 30 of the Act of 2007, and that he was entitled to consult his solicitor first. The applicant consulted his solicitor.

43. Thereafter there was another interview at 3.46 p.m. on the 16th September, 2008, once again the applicant was cautioned, he was told that the interview was being recorded, and that the gardaí were continuing to investigate the offence for which he was arrested. The applicant was asked if he had had an opportunity to consult his solicitor, and he answered “Yes”, and stated that he had been advised in relation to s. 28, 29, 30 of the Act of 2007. Also, s. 28 was explained to the applicant. The applicant was then questioned, and per the evidence of Detective Garda Hanley, the applicant answered as follows:-

(See Transcript 12th November 2009 (Day 7) Evidence of Detective Garda Brian Hanley p. 22, line 33 to p. 25, line 11.)

“ ‘Question: You [the applicant] have been given an opportunity to consult with your solicitor, is this correct?

Answer: Yes.

Question: Has he advised you in relation to section 28, 29, 30 of the Criminal Justice Act 2007?

Answer: Yes.

Question: Brian is now going to read sections 28, 29, 30 of the Criminal Justice Act, he will explain them also in layman's terms; okay?

Answer: Yeah.’

And thereafter you [Detective Garda Hanley] read out section 28 of the Criminal Justice Act 2007, and you explain in it layman's terms what that section means; is that correct?

A. That is correct, my lord.

Q. And then you ask a question: ‘Do you understand what I have said about this section?

Answer: Yes.

Question: Your solicitor has already explained these sections?’

And then you [Detective Garda Hanley] go on to explain section 28; is that correct?

A. That is correct, my lord.

Q. And Robert Comerford then asks the question: ‘Are you [the applicant] happy enough about section 28?

Answer: Yes:

Question: In accordance to this, I want to ask you about your Renault Kangoo van registration No. 03 MH 3275. How long have you had this van?

Answer: About six months.

Question: Where did you go to in this van last Saturday when you left the Cuckoo's Nest?

Answer: This is a very serious case and I have been advised by my solicitor not to say anything in case I get into trouble.’

I think then you [Detective Garda Hanley] asked the prisoner to sign section 28 of the Criminal Justice Act; is that correct?

A. That is correct, my lord.

Q. ‘Answer: This is a very case and I don't want to put my initials to any documents, please, thank you. My solicitor has advised me to say “no comment”.

Question: Did you loan that van to anyone?

Answer: I have been advised to say “no comment”; I don't mean to be rude. Question: It is our brief this van was used in the murder of Christopher Barry last Saturday, where he was shot a number of times with a firearm, and you are being asked to account for this van last Saturday between 1.40 p.m. and 4 p.m.?

Answer: I have been advised at this time this is my best interest to say “no comment”. I don't mean to be rude.

Question: You understand that inferences may be drawn for your refusal to account for this Renault Kangoo van?

Answer: Yes.

Question: I believe you drove this van to Killester last Saturday and you are heavily involved in the murder of Christopher Barry. Are you refusing to account for your Renault van last Saturday the 13th of September?

Answer: At this stage it is my best interest to say “no comment”.

Question: What about Christopher Barry's interest?

Answer: I thought that at the start I was going to be asked about sections 28, 29 and 30.’

Detective Garda Comerford explains why questions about the case are being put to the prisoner.

‘Question: Are you [the applicant] satisfied about the way I have explained?

Answer: It is hard to take it all in to my best in my head, I'm trying to remember everything.

Question: So you do understand?

Answer: Yes.

Question: Your Renault Kangoo van was observed by a witness in the immediate vicinity of Byrnes Bookmakers, Killester, at approximately 3 pm last Saturday. You have been asked to account for this van in Killester last Saturday?

Answer: At this stage in the investigation, I have been advised to say “no comment”.

Question: Is it okay if I put “no comment”?

Answer: You answer the questions in any way you want to.’

If I repeat that. Oh, sorry, you are saying it is your answer?

A. Yes. Detective Garda Comerford said ‘Is it okay if I put no comment to this’, and I [Detective Garda Hanley] just said to Liam Bolger to answer the questions in any way he wanted to.

Q. And Mr Bolger answered ‘yes’ to that.

‘Question: Also under section 28, I want to question you [the applicant] in relation to the damage to your Kangoo van, 03 MH 3275. You have viewed CCTV footage of the Cuckoo's Nest last Saturday where it is visible that there is no damage to the door of the van. You have now been asked to account for the damage to your van?

Answer: No comment.

Question: Why did you lie to the guards when you said this damage happened prior to last Saturday?

Answer: No comment.

Question: You viewed the footage for time approximately 1.40 at the Cuckoo's Nest and there was no damage. And when you were stopped by the gardai at 4.30 pm there was damage. How did this damage happen? ,

Answer: No comment.

Question: You do understand that refusing to answer questions about the damage to the van is a failure or refusal?

Answer: At this stage I have been advised to say “no comment”.’”

This extract from the transcript illustrates the approach taken by the applicant.

44. In all the circumstances of the case the ruling of the learned trial judge was not an error.

45. The trial judge stated on the 12th November, 2009 (Day 7) at p. 20, lines 9 to 27:-

“He was -- now, it was explained to him that inferences might be drawn and it was indicated to him that he was satisfied about the manner in which this had been explained, and that he understood the situation. We had this over and over again, that the -- at least half a dozen times or thereabouts -- that the situation was explained to him and he understood it, and we saw all this on the video. And that gave me some initial concerns, because in the guard's explanation there was a lot of legal mumbo jumbo being given in explanation of other legal mumbo jumbo, and it is hard in the circumstances we are concerned with here to get away with -- to get away without that. But what did come across on the tape was that the accused was not a man who came in determined to find a spot on the wall and stare at it for the course of his detention and say nothing. He was a very, creditably -- and remarkably creditably -- a person who engaged with the guards and was manifestly seeking to understand the situation, and I am satisfied to the standard of beyond reasonable doubt that, taking account of what he had said in relation to his legal advice, in taking account of what was said to him by the guards, taking account of the questions he put to the guards and the manner in which he engaged with the solicitor and then contributed to the process, that he did understand the situation, that it was proper explained to him, and I am satisfied the statutory provisions may be operated in this case.”

46. The Court is satisfied that the trial judge applied the standard of proof beyond reasonable doubt in ruling to admit the memorandum of interview, so that the jury could be invited to draw inferences from the applicant’s silences.

47. In this case (a) the applicant was advised by the gardaí that they intended to invoke the statutory provisions; (b) the applicant consulted with his solicitor; (c) the gardaí explained the sections of the statute to him in layman’s language; (d) the applicant indicated that he understood the caution; (e) the applicant engaged with the gardaí; (f) this was recorded on videotape.

48. The Court is satisfied that the evidence was properly admitted and would dismiss this aspect of the appeal.

The CCTV Footage
49. The fourth issue submitted by counsel for the applicant related to the CCTV footage. It was submitted that the trial was unsatisfactory by reason of the reliance upon evidence of the applicant’s phone records and CCTV evidence to show an agreement by the applicant to act in a joint venture enterprise for the murder, when the evidence could not be probative of such matters.

50. The prosecution’s case against the applicant was that he was part of a joint enterprise with the person who shot Christopher Barry on the 13th September, 2008 at Byrne’s Bookmakers shop in Killester Avenue. It was the prosecution case that the applicant was the getaway driver for the gunman who shot Christopher Barry.

51. There was evidence that the applicant and his van, a Renault Kangoo registered number 03 MH 3273 left the Cuckoo’s Nest Public House, Tallaght, at approximately 1 p.m. on the 13th September, 2008. CCTV cameras confirmed this fact, as did a witness. The van was tracked by CCTV cameras and cross referenced by phone records to various phone cell sites on the route, referencing the applicant’s mobile phone, until it arrived and parked at La Vista Avenue, near to Byrne’s Bookmakers. The gunman came from the Howth direction and left the site of the murder and went to where the van was parked on La Vista Avenue, where he burnt the motorbike he had ridden, and he entered the van. This was witnessed by an eye witness who also identified the registration of the van. The witness rang gardaí by a 999 phone call. It was the same van as had been identified in Tallaght.

52. The issue of the video evidence was raised at the trial and the learned trial judge ruled that it was admissible.

53. The Court is satisfied that the learned trial judge was correct in fact and law in deciding that the evidence of the CCTV cameras was admissible before the jury, and that it was a matter for the jury whether it was satisfied that the white van on the CCTV footage was the material white van.

54. On the 11th November, 2009 (Day 6) at p. 3 of the transcript, lines 10 to 13 the learned trial judge ruled:-

“Very well. Having regard to the evidence as a whole, I’m satisfied it’s a matter of fact for the jury to decide whether they are satisfied to the standard of beyond reasonable doubt that the white van in the CCTV film being relied upon is the material white van. It is a matter for them.”

This Court affirms the approach of the trial court. It was a matter for the jury.

The direction issue
55. Counsel submitted that there was a failure by the learned trial judge to direct a verdict of not guilty at the end of the prosecution case. The authorities need not be opened; they include R. v. Galbraith [1981] 1 WLR 1039, People (Director of Public Prosecutions v. Leacy (Unreported, Court of Criminal Appeal, 3rd July, 2002.)

56. At the trial on the 13th November 2009, counsel for the applicant made a comprehensive application for such a direction. The learned trial judge ruled at p. 9, line 24 of the transcript:-

“Well, I am satisfied it is a matter for the jury to resolve, not for me”.

This Court finds no error in that ruling in all the circumstances.

Conclusion
57. The Court has considered carefully the oral and written submissions made by the parties in the case. The Court has also reverted to the general rule, set out in paragraph 32(vii), that an applicant may not raise on an appeal new issues not determined at a trial, however, as stated in The People (Director of Public Prosecutions) v. Cronin No. 2 [2006] IESC 9, [2006] 4 IR 329 at 339 and 346, the Court could intervene, which in this case would be to allow the Damache decision to be argued, if it were of the view that a fundamental injustice had been done or there was a reasonably explained substantial error leading to an apprehension of real injustice. Having heard the submissions on the grounds of the appeal, the Court is satisfied that this is not a case where the issue of a fundamental injustice arises or that there was a reasonably explained substantial error leading to an apprehension of real injustice. Rather, it is a case where the Court is satisfied that there was no error by the learned trial judge.

58. Consequently, the Court would refuse the application for leave to appeal.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Liam Bolger [2013] IECCA 6 (14 March 2013) URL: http://www.bailii.org/ie/cases/IECCA/2013/C6.html Cite as: [2013] IECCA 6

Irish Court of Criminal Appeal