179 / 270
GAZETTE
SEPTEMBER 1980
(Continued from p. 171)
unless the prosecution prove extraordinary excusing
circumstances for the breach or prove that the breach
itself was inadvertent. In O'Brien's case as it was clear
from the evidence that since the Gardai never noticed that
the address on the warrant was incorrect and the warrant
accordingly useless, the evidence could not be excluded
simply because, in fact, the accused's right to the
inviolability of their dwelling under article 40 had been
violated.
The absolute nature of the exclusionary rule for
unconstitutionally obtained evidence means that the
slightest infringement of a constitutional right is sufficient
to render a statement inadmissible. No considerations arise,
or should arise, as to the nature of the breach and the
value of the evidence thereby excluded in relation to the
seriousness of the crime, as they arise in the Irish
approach to illegally obtained evidence. Thus the merest
oversight or technical flaw will exclude evidence which
would otherwise be sufficient to convict an accused of
serious crime. Where the oversight or technical flaw
amounts merely to an illegality the judge would probably
exercise his discretion in favour of admitting the evidence,
especially where the charge is a serious one. This is not
possible in relation to unconstitutionally obtained
evidence. Thus in
People v. Farrell
119781 I.R.13. the
accused was convicted in the Central Criminal Court of
causing an explosion c on t r a ry to the Explosive
Substances Act, 1883, and the conviction was based on
an admission obtained by the police during an extended
period of detention under Section 30 of the Offences
Against the State Act, 1939. That section gives the
Gardai power to arrest, detain and interrogate for 24
hours any person they believe to have committed or
intends to commit or has information in relation to the
commission or intended commission of any offence under
the Act or Schedule 5 thereof. The period of detention
may be extended for a further 24 hours if a Garda not
below the rank of Chief Superintendent or Superinten-
dent, authorised in writing by the Commissioner, so
directs. All the incriminating statements made by the
accused were made after the expiry of the first 24 hours of
detention. The purported extension of the detention was
made by a Superintendent who was not proven to have
authority f r om the Commissioner to extend that
detention. The accused had been deprived of his liberty
and that deprivation of liberty had not been in accord-
ance with the law. No evidence had been adduced that the
failure to extend correctly had been an oversight and so
bring the evidence outside the rule in O'Brien's case and
accordingly the court could deal with the matter under
their Legal Evidence Rule and so exercise a discretion. In
fact the only flaw in the evidence in this case was that no
evidence had been adduced by the prosecution that the
Superintendent who extended the period of detention into
the second day had been authorised by the Garda
Commissioner, the Supreme Court refused to presume
that he had been so authorised. O'Higgins, C.J. in giving
the judgment of the court said:
"Mr. Landy submitted that the maxim
omnia pre-
sumuntur or rite esse acta
applied. In other words he
submitted that the court ought to presume that any-
thing which ought to have been done was done, and
that the Superintendent was acting regularly and
properly. I do not think that the presumption
mentioned in the maxim could have any application
in a case of this nature. It might well be that under
such a maxim the Court might assume that the
Superintendent had been regularly appointed as such,
and indeed, possible in relation to the exercise of the
normal powers and functions of a Superintendent
who is acting properly and regularly. However, here
we are concerned with the power not normally given
to a Superintendent and which, for its exercise by a
Superintendent requires a special authorisation
designated by the legislature. No court in relation to a
penal statute could apply any such presumption in a
matter of this kind. Certainly this court will not do
so."
Some breaches of the constitutional rights of the accused
would be more serious. In
People v.
O'Loughlin
(unreported 11/13/78 CCA) the accused voluntarily
accompanied Gardai to a Garda station after having
been accused of stealing a muck spreader. In the station
his explanation that he had bought the muck spreader was
checked and found to be incorrect. Instead of being
arrested, charged, released or brought before a Peace
Commissioner he was held in custody, in order that he
might be questioned about "cattle rustling". He was never
arrested or charged with this second offence. While being
questioned about cattle rustling he made a full statement
about the muck spreader; he was then charged and
formally taken into custody. He had already been in
informal custody for 13 hours. O'Higgins C.J. in deliver-
ing the judgment of the Court of Criminal Appeal was
of the opinion that the detention could be divided into two
periods. The first, from the time the accused came into the
charge of the Gardai to the time the Gardai discovered
that his first statement in relation to the muck spreader
was incorrect, was not a deprivation of liberty as the
accused had been in the station voluntarily. There is how-
ever authority for the proposition that a person who
voluntarily accompanies another in order to answer a
charge of felony is falsely imprisoned if that charge later
turns out to be unfounded; c.f.
Peters v. Stanway
6 Car.
& P. 738. From that point on the accused was not in
custody voluntarily and would have been arrested if he
had tried to leave. Yet the accused had not been deprived
of his liberty in accordance with the law as he had never
been arrested and consequently could not have been
accorded his right to bail. Following
Dunne
v.
Clinton
[1930] I.R. 336 O'Higgins C.J. reaffirmed t ha t - " ho l d i ng
for questioning, taking into custody or detaining are
merely different ways of describing the act of depriving a
man of his liberties. To do such without lawful authority
is in open defiance of Article 40.4 of the Constitution."
The Chief Justice went on to hold that as a result of the
unlawful detention the accused had made the incrimina-
tory statements. On the facts no submissions that the
deprivation of liberty was inadvertent could be sustained.
The statements were accordingly excluded. The Chief
Justice then went on to affirm that no discretion vested in
the Trial Judge in admitting evidence obtain in breach of
the rule in O'Brien's case and stated that there were no
extraordinary excusing circumstances which could justify
the invasion of the accused's rights in this particular case:
"The Trial Judge, even on the basis of there having
been a deliberate and conscious violation of the
constitutional rights was prepared to exercise his
discretion in favour of admitting the statement. He
was prepared to do so because in his view it would
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