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GAZETTE
SEPTEMBER 1980
Continued from page 173
serve the public interest in the circumstances. This
court cannot agree with this view. There are no
circumstances in this case which can excuse what
took place, and it would ill-serve respect of the
Constitution and the laws, if this court, by allowing
evidence so obtained, were to indicate to citizens
generally of the obligation on the State to safeguard
and vindicate constitutional rights, could in the
circumstances of a criminal investigation be
dispensed with or eased."
The Rule in O'Brien's Case
Under the rule in O'Brien's case if the invasion of
constitutional rights has been inadvertent the court is not
obliged to exclude the evidence. As the infringement of
constitutional right always amounts also to an illegality
the Court, of course, has a discretion to exclude it.
However, the burden of proving that the infringement of
the accused constitutional rights was not deliberate, and
the evidence accordingly merely illegal, rest with the
prosecution. This is a strict principle and its operation
well illustrated by the great case of
People
v.
Bartholomew Madden
11977] I.R. 337. The accused had
been arrested under Section 30 of the Offences Against
the State Act, 1939, at 7.15 a.m. on the 19th June, 1975,
to be questioned concerning the murder of one, Laurence
White, killed by a burst of machine-gun fire on a public
road in Cork. TTie usual period of 24 hours detention was
extended to 48 hours in the correct manner. He therefore
should have been released or charged on the 21st June, at
7.15 a.m., at the latest. At 6.40 on that day Bartholomew
Madden began to make an incriminating statement. He
completed the statement at 10.30 a.m. when he was told
he could go home. The statement was admitted and
Madden convicted as an accessory to murder. The judg-
ment of the Court of Criminal Appeal was given by
O'Higgins C.J. On the facts, from 7.15 a.m. to 10.30 a.m.
Madden had been deprived of his liberty otherwise than in
accordance with the law. The next question was whether
the invasion of a citizen's rights had been deliberate. The
Chief Justice emphasised that the burden of proving
inadvertance was on the prosecution. On examination of
the trial transcript it was found the Madden was
detained although the Gardai knew that the period of
lawful detention had elapsed. The fact that they thought
that the period had been extended by the accused's
voluntary statement was discounted by the court. The
duty of the servants of the State is primarily to vindicate
the right of the citizen; the taking of the statement was
secondary:
"As matters stand, this statement was taken by a
senior Garda officer who must have been aware of
the lawful period of detention which applied in the
defendant's case and in circumstances which
suggested that he deliberately and consciously
regarded the taking of the statement as being of more
importance than according the Defendant his right to
liberty, should he, the defendant, desire to exercise his
rights....
By reason of the fact that it may have been
taken under circumstances which involved a
deliberate and conscious breach of the defendant's
constitutional rights the statement ought to have been
excluded."
Accordingly, where there is not evidence that an invasion
of the citizen's rights is inadvertent the evidence must be
excluded. Thus Higgins C.J. further stated that no
element of willfulness or
male Jides
is required of the
servant of the state to bring the invasion of the citizen's
rights within the rule in O'Brien's case, he said:
"What was done or permitted by Inspector Butler
and his colleagues may have been done or permitted
for the best of motives and in the interest of the due
investigation of crime. It was, however, done or
permitted without regard to the right of liberty
guaranteed to this defendant by Article 40 of the
Constitution and to the State's obligation under that
article to vindicate this right. This lack of regard for
and failure to vindicate the defendant's constitutional
right may not have induced or brought about the
making of the statement but was the dominating
circumstances surrounding its making."
As the Chief Justice and Walsh J. had earlier said, if the
State would not vindicate the citizen's rights then it fell on
the court to do so by the only means available to it,
exclusion of evidence so obtained.
It has now been finally settled by the case of
People v.
Raymond Walsh
(Supreme Ct. 17/1/80, unreported) that
the fact that the police officer, infringing the accused's
constitutional rights does not know that his action is illegal
or unconstitutional does not make the infringement of the
accused's rights inadvertent and so allow the evidence to be
admitted at the trial judge's discretion. This inadvertence
within the rule relates specifically to fact and not to law
This over-rules the earlier decision of Costello, J. in
People
v. Shaw (C.C.A.
22 / 5 / 79 unreported). Walsh's case also
decides that an arrest which is unlawful by reason of the
accused's not having been told the reason for his arrest can
later be validated by that information being supplied. The
raison d'etre of the rule in O'Brien's case in this country
based on the doctrine of the fruits of the poison tree
enunciated by the United States Supreme Court in
Weeks
v. U.S.,
are one and the same; to allow in fact a flaunting of
the natural and constitutional right of the citizen is to
encourage the kind of society obnoxious to free men. It is
submitted that under no circumstances should a lack of
knowledge of the law or Constitution provide an excuse for
illegal action.
The Discretionary Principle
There are three circumstances in which evidence obtained
in breach of a citizen's constitutional rights does not fall
within the rule in O'Brien's case but falls to be dealt with
by the discretionary principle. In this respect the Irish law
seems to be borrowed from the rule in Week's case and
Walsh J. in his judgment in O'Brien's case adopted the
exceptions thereto.
(1) Evidence obtained in breach of the constitutional
right of a third party may be used against an accused.
This is so because, as Walsh J. said, the primary function
of the courts under the Constitution is the vindication of
the constitutional rights of the citizen. The courts will
vindicate the breach of the rights of the accused by the
State by refusing to allow the State to use any evidence
obtained as a result against him. It would be futile to
vindicate the constitutional rights of a party other than an
accused by refusing to admit otherwise admissible
evidence against an accused whose rights have not been
infringed, thereby perhaps saving him from a conviction
and punishment in which the third party also had an
interest under the Constitution. The Courts will vindicate
175