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GAZETTE
SEPTEMBER1983
be admissible at the discretion of the trial judge whereas
the fifth member of the Court took the view that such
evidence was always admissible provided it was relevant
and probative. These principles were further reiterated by
the Supreme Court in
Shaw's case.
However, there was no
absolute harmony between the members of that Court
with regard to every point that might happen to govern a
confession in any given instance. The majority of the five-
man Court disagreed with Walsh J. where he stated
without qualification that no person may be arrested with
or without a warrant for the purpose of interrogation or
the securing of evidence from that person. Walsh J. had
majority support in saying that a person's statement is to
be ruled out as evidence obtained in deliberate and
conscious violation of his constitutional rights even
though the taker of the statement may not have known
that what he was doing was either illegal or unconstitu-
tional. It would require fine legal analysis to reconcile this
part of his judgment with the part of his judgment in
O'Brien's
case
quoted above. However, in all other
respects the members of the Court concurred.
One can only conclude from reading the
O'Brien and
Shaw
decisions that an accidental, unintentional infringe-
ment of the Constitution may not be sufficient to rule out
a statement so that the maxim
'ignorantia juris non
excusat'
may no longer apply to this aspect of admissi-
bility. In
The People(D.P.P.)
-v-
Madden & Ors.
[1977] IR.
336 (S.C.) a factor such as inadvertance was recognised as
capable of being one of the "extraordinary excusing
circumstances" envisaged in
O'Brien's
case.
In the
opinion of Griffin J. in
Shaw's case
(with whom the
majority agreed) it is a violation of the accused's constitu-
tional rights and
not
the particular act complained of that
has to be deliberate and conscious for the purpose of
ruling out a statement.
In
Madden's case
Counsel for the accused objected to
the admission of the statement of Madden on the ground
that it was induced by oppression, prolonged questioning
and the abuse of the power conferred on the Gardai by
s.52 of the Offences Against the State Act 1939. It was
further contended as a ground for excluding the statement
that it was taken under circumstances in which the
Defendant was unlawfully detained by the Gardai and
that the completion of the statement was secured in
breach of his constitutional right to liberty. Madden had
been arrested at 7.15 a.m. on 19th June, 1975, under
Section 30 of the 1939 Act under which Section the lawful
period of detention is 48 hours. Accordingly, the time
expired at 7.15 a.m. on 21st June, 1975.
A garda officer began taking down the statement at
6.40 a.m. on the 21st June and therefore it was wholly
improbable to be completed by 7.15 a.m. and it was in fact
not completed until some time afterwards and he was only
released at 10 a.m. on the same day (21st June). The
Special Criminal Court had ruled that Madden's
statement was voluntary and should be admitted in
evidence and further had ruled that there had been no
deliberate and conscious violation of the accused's
constitutional right, but the Court of Criminal Appeal
held (per O'Higgins C.J.) that the incriminating written
statement which he had made had been completed after
the expiration of the period of his lawful detention and
while he was being detained unlawfully and without
regard to the right to liberty guaranteed to the Defendant
by Article 40 of the Constitution and without regard to
the state's obligation under that Article to defend and
256
vindicate that right; and that the onus of proving that
there had been no deliberate and conscious violation of
his constitutional rights had not been discharged by the
prosecution. The statement was therefore held
inadmissible and the Defendant set free.
The primary requirement, however, is for the prosecu-
tion to show that the confession was voluntary and
therefore not coerced or otherwise induced but made
with the true and free will of its maker. To quote Griffin J
in
Shaw's ease
[ 1982] IR at p.60/61
"It is sufficient to say that the decided cases show
that a statement will be excluded as being
involuntary if it was wrung from its maker by
physical or psychological pressures, by threats or
promises made by persons in authority, by the use
of drugs, hypnosis, intoxicating drink, by
prolonged interrogation or excessive questioning,
or by any one of a diversity of methods which have
in c ommon the result or the risk that what is
tendered as a voluntary statement is not the natural
emanation of a rational intellect and free will".
In
The People (D.P.P.)
-v-
Lynch
[1982] IR 64 where the
Defendant had been taken into custody on a Sunday
evening and had made a statement at 2 p.m. on Monday
afternoon and again at 6 p.m. admitting the murder, the
subject of the proposed charge, the conviction by the
Central Criminal Court was quashed on Appeal to the
Supreme Court. The Supreme Court found that the
Defendant had been 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. The Supreme Court (per O'Higgins C.J.) held
that although the accused's admissions of guilt had been
voluntary admissions, the trial judge should have
excluded them in the exercise of his general discretion
since the circumstances in which those admissions were
procured had been oppressive and that all that had
happened had amounted "to such circumstances of
harrassment and oppression as to make it unjust and
unfair to admit in evidence anything he said." The
Supreme Court added that the jury by an appropriate
question ought to have been asked as a question of fact
material to the Defence whether the Defendant's evidence
that he had been held against his wishes was or was not
true.
Another case on confessions is
The People (D.P.P.) -v-
McNally and Breathnach
Court of Criminal Appeal: 16th
February, 1981). In the case of Bernard McNally, it was
accepted that the only evidence against him consisted of
verbal admissions which were made after an interview
extending over 44 hours interrupted by one night's sleep
only. No explanation other than a previous course of
conduct was tendered to the Special Criminal Court for
the failure of the two garda witnesses directly concerned
to make a note of the alleged verbal admissions by the
Defendant and to afford to him an opportunity for
correcting or rejecting them. The Court of Criminal
Appeal was not satisfied that there were an
y
circumstances proved before the Court of trial which
would justify the exercise of its discretion in favour of
admitting in evidence these verbal statements notwith-
standing the breach of the Judges' Rules. The conviction
therefore was set aside.