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GAZETTE
OCTOBER 1981
Recent
Irish
Cases
CRIMINAL LAW
Conviction for murder quashed
because
statements
made
by
Appellant should not have been
admitted by the Trial Judge. Jury
should be asked to decide whether
Appellant's evidence that he had been
held against his wishes, as he
described, was or was not true.
The Appellant was tried in the
Central Criminal Court before a
Judge and Jury on the charge of
having murdered Miss V.C. He was
convicted and sentenced to penal
servitude for life. He appealed
directly to the Supreme Court in
exercise of his right so to do by
Article 34.4.3 of the Constitution
which expressly provided that the
Supreme Court, as the court of final
appeal, should, with such exceptions
and subject to such regulations as
might be prescribed by law, have
appellate jurisdiction
from all
decisions of the High Court; and that
the Central Criminal Court was the
name applied to the High Court when
exercising its criminal jurisdiction in
relation to the trial of offences, and a
verdict, arrived at in that Court by a
Jury on the trial of an indictable
offence was a decision of that Court.
The following were the relevant
facts: The body of V.C., it had
been stated, was found in her flat by
the Appellant, and another man, who
entered by means of a door key
which was lawfully in the Appellant's
possession. A knife was embedded in
her chest and a scarf was tightly
bound around her neck.
On making the discovery, the
Appellant
phoned
999
and
subsequently the Gardai and an
ambulance arrived. It was stated that
the Appellant lived in a block of flats
which was owned by a Mr. M, a
brother-in-law of V.C. Mr. M.
employed the Appellant for odd jobs
in connection with the upkeep of the
flats and, at the time of the murder,
the Appellant had been engaged by
Mr. M. to paint and decorate, in his
spare time, the house in which V.C.
resided. The Appellant had stated
that he went to the house where V.C.
resided on a Sunday, to finish the
work he had commenced and Mr. D.
who accompanied him was to have
assisted him in finishing the work.
Following the arrival of the Gardai,
the Appellant was asked to go to
Irishtown Garda Station to make a
statement which he duly did, giving a
full and detailed account which was
reduced to writing and signed.
In his statement the Appellant said
he had gone to the house the previous
day, a Saturday, to do a small job in
connection with the electric wiring.
He said he later met Mr. D. and
arranged for his help in finishing the
work the following day. His
statement then outlined how when
they arrived at the house they
discovered the dead body of V.C.
At the trial the evidence was to the
effect that when the Appellant made
his statement and for a considerable
time after, no one entertained the
slightest suspicion that the Appellant
had been in any way involved in the
murder of V.C.
The Appellant remained on in
Irishtown Garda Station throughout
Sunday night and right into the
following (Monday) morning, being
subjected, throughout, to successive
bouts of questioning by different
groups of gardai, and at no time
being afforded an opportunity of
sleeping or resting.
Seven telephonic inquiries, from
his wife, friends and family were
made while he was there, and they
were never communicated to him and
those inquiring for him did not
receive any reliable information as to
what was happening to him.
In the early hours of the Monday
morning, he was again interviewed
and questioned. At 10 a.m. he was
transferred to the Donnybrook
Garda Station where the questioning
was resumed by other gardai. At 2
p.m. on the Monday afternoon a
Garda entered the room where he
was, the Appellant enquired whether
he was the garda who had taken his
fingerprints, and suddenly said: "I
killed V.C. I did it with a bit of cable.
1 stabbed her with a knife from the
kitchen table".
The Appellant was then seen by an
Inspector and agreed to make a
written statement. The Inspector
suggested he should have some sleep.
At about 6 p.m. on the Monday
evening he was awakened, cautioned
and he made a statment in which he
confessed to the killing of V.C. on the
previous Saturday.
Another statement was relied upon
by the prosecution. The Appellant
said to his brother in answer to a
question as to why he was not
coming home, "Because I did it".
This was in the presence of Gardai.
There was some conflict of evidence
as to whether he added "because I
killed her".
The Trial Judge stated that in his
view no question of unlawful custody
arose and having found that the
statements were voluntary, he
decided to admit them in evidence.
In the Supreme Court, O'Higgins,
C.J., and Walsh, J., considered the
principles laid down in
The People
v.
O'Brien
[1965] I.R. 142, in relation
to evidence, irregularly obtained. The
first of these principles was that
evidence obtained as a result of a
deliberate and conscious violation of
the Constitution should be excluded
unless there was some "extraordinary
excusing
circumstance"
which
warranted its admission.
The second principle was that in
relation to evidence obtained by
illegal means, short of a violation of
Constitutional rights, the presiding
Judge has a discretion to exclude
same where it appeared to him that
public policy, based on a balancing of
public
interest,
required
such
exclusion.
Held
(per O'Higgins, CJ., with a
concurring separate judgment by
Walsh J., and a separate concurring
judgment from Kenny J., with
reservations) in allowing the appeal
and quashing the conviction that:—
(1) The fact that the Appellant was
subjected for almost 22 hours to
sustained questioning, never had
an opportunity of communicating
with his family or friends, and
had never been permitted to rest
or sleep until he made an
admission of guilt, all amounted
to
such
circumstances
of
harassment and oppression as to
make it unjust and unfair to
admit in evidence anything he
said.
(2) The Trial Judge, in exercising his
discretion
to
admit
the
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