183 / 270
GAZETTE
SEPTEMBER 1980
People v. John Shaw
In
People
r.
John Shaw
(unreported) 22/5/79 CCA,
the accused and one Jeffrey Evans were taken into
custody for questioning on Sunday the 26th September
1977, at 11.30 p.m. The detention was illegal. The
accused was not brought before the District Court sitting
at 10.30 a.m. on Monday, nor was he arrested or
charged. Evans however was validly arrested as being in
possession of a stolen motor car. While in custody the
Gardai noticed that the description of the two men tallied
with those of two persons wanted in connection with the
disappearance of one Elizabeth Plunkett who had last
been seen at Brittas Bay in County Wicklow on 28th
August 1 976. Superintendent Reynolds who was in charge
of that case, arrived at the station on Monday morning
and began to interrogate the men who by this time had
been lawfully arrested for stealing a car. The circum-
stances of the disappearance of Elizabeth Plunkett had led
Superintendent Reynolds to believe that the same men
had been implicated with the disappearance of another
girl, Mary Duffy, who was last seen in Castlebar on the
22nd of September 1976. The Superintendent considered
that there was a good chance that this girl, Mary Duffy,
was still alive and in the circumstances that it might be
vital to discover her whereabouts as soon as possible. For
most of Monday Shaw was questioned on this. He said
nothing. On Tuesday, at 4 a.m., he made a complete
confession of abduction, rape and murder. Shaw then
promised to show the Garda, places around Conne
mara where these crimes and the later burial of Mary
Duffy had occurred. He rested in his cell until 1.30 p.m.
on Tuesday when he went in a car with the Gardai to
whom he showed the places where Mary Duffy had been
murdered and where her clothing had been burned and
finally to Lough Inagh where he had disposed of her
body. On Wednesday morning he was brought before the
District Court on these charges.
The Trial Judge, Costello J., found that the paramount
concern of the Gardai from the time they discovered
Shaw's implication in the disappearance of Mary Duffy,
was to save her life and that they had grounds for believ-
ing she was still alive. These grounds arose in part from
the statement of Jeffrey Evans that the other girl,
Elizabeth Plunkett, had been kept alive when in custody
for some time after her abduction. He further found that
this position did not materially change after Shaw's
confession to her murder on Tuesday. Shaw was mentally
disturbed, he had clearly implicated himself with Mary
Duffy's disappearance but could easily have been lying
about her death. Accordingly the Gardai were right to be
more concerned for her life than with charging Shaw and
affording him his rights to bail. The learned Trial Judge
held that the paramount and primary purpose of Shaw's
detention was to save the life of Mary Duffy whom the
Gardai reasonably believed to be in peril. The evidence was
accordingly admitted.
On appeal to the Court of Criminal Appeal McMahon
J. affirmed these findings of fact. He held that extra-
ordinary excusing circumstances existed within the ruling
of O'Brien's case. However the learned Judge held that
the admissible evidence obtained as a result of the
invasion of the accused's personal rights was confined to
the evidence, the discovery of which was required by the
extraordinary excusing circumstances and that no other
evidence obtained in breach of the accused's rights could
be admitted. McMahon J. termed this evidence "target
evidence", and said "this restriction of the admissible
evidence appears to follow logically and the fact which
rendered it admissible and evidence which is extraneous
to the purpose ought to be inadmissible". Accordingly
Shaw's admissions as to the whereabouts of Mary Duffy
were admitted but evidence as to her death which had not
been part of the target evidence of the extraordinary
excusing circumstances could not be admitted.
Conclusion
In conclusion it must be said that the Irish law on this
topic is wholly logical and not easily criticized. It is also
an advantage that the law can be stated with precision
and certainty, the judgments referred to above being
admirably clear. The principle which gives a Trial Judge a
discretion over illegally obtained evidence seems the best
solution between the position in English law and a rule of
absolute exclusion. It must be remembered that the
Constitution gives every citizen on a criminal charge the
right to a trial in due course of law. This, as explained by
Gannon J. in
State (Healy) v. Donoghue
[1976] I
.R.,
325 implies that above all else that the rules governing the
conduct of the trial should be fair. There may be
circumstances in which the absence of a discretion to ex-
clude evidence illegally obtained would result in
unfairness. Kingsmill-Moore J. in O'Brien's case
instanced evidence obtained from a person by violence to
his wife. In these circumstances if no discretion is vested
in the Trial Judge it is not hard to conceive that a
conviction obtained as a result would be held not to have
been in due course of law. The existence of this discretion
over illegally obtained evidence is important in the context
of the law on unconstitutionally obtained evidence. As the
Trial Judge who cannot exclude unconstitutionally
obtained evidence, because it falls ithin one of the
exceptions in O'Brien's case or is admitted within the rule,
has then a discretion over the evidence, an invasion of any
citizen's rights being always illegal. It must be said that
the absolute rule of exclusion for unconstitutionally
obtained evidence as formulated by O'Brien's case and
explained by Madden's case and Shaw's case is framed
only as widely as Article 40.2 requires; the three
exceptions outlined above clearly limiting it to the express
words of that Article. The circumstances rendering
evidence obtained in breach of the rule admissible as
regards inadvertence in Madden's case, or excusing
circumstances, in Shaw's case, are scrupulously fair in
placing the burden of proving inadvertence on the
prosecution and limiting the admissibility of evidence
necessitated by extraordinary excusing circumstances to
the target of those excusing circumstances. The two rules
outlined above taken together constitute a further check
on the action of an unscrupulous Government against the
rights of a citizen. It has been said that nothing brings
own a Government faster than failure to observe its own
laws. Be that as it may, though a Government in this
country collapse, the Rule in O'Brien's case, by
protecting the citizen from high-handed governmental
action in ensuring that no citizen was convicted by
evidence obtained by that Government in breach of those
citizen's rights the Government has been charged by the
people to vindicate, may ensure that other edifices under
the Constitution will remain intact.
(Concluded)
177