96 / 346
GAZETTE
APRIL 1983
The Court stated that a detention which may initially
"have been illegal can in certain circumstances be
legalised
{In re Laighléis^)
and there are many circum-
stances in which a valid arrest at law can be made
immediately after the release of a person from a custody
which had been for one reason or another illegal".
Applicant in Richmond Hospital Dublin
On the 15th July the applicant, while in the Bridewell
Garda Station, complained of difficulty in breathing. He
was taken to the Richmond Hospital. Before he left the
Bridewell an extension order was made under Section 30 of
the Offences Against the State Act 1939. The validity of
the extension order was not challenged. On the 16th July in
the Richmond Hospital, the accused was informed that he
was no longer being detained.
As the applicant left his room in the Richmond Hospital
on the 24th July he was arrested at c ommon law and
brought in custody to the Special Criminal Court where he
was charged with the crimes of which he was subsequently
found guilty. Again, it was argued that the c ommon law
arrest was unlawful. Two armed gardai were on duty inside
the applicant's hospital room. Two more armed gardai
were on duty outside the room of the applicant. Anyone
going to the room was searched. The Court of Trial had
found that the applicant had willingly agreed to go to the
Richmond Hospital for medical treatment and that he
voluntarily remained in hospital until his discharge on the
24th July. The Court of Criminal Appeal stated that
neither it nor the Court of Trial was required to infer from
the very close Garda surveillance that the applicant was in
Garda custody. The Court of Criminal Appeal stated that
it was its opinion that the applicant's arrest on the 24th
July outside his room in the Richmond Hospital was lawful
and that the Special Criminal Court had jurisdiction to try
him.
Admissibility and weight of Evidence against the
Applicant
Evidence had been given in the Special Criminal Court
that when a Detective Garda approached the applicant
O'Shea in the forest, the Detective Garda asked the
applicant "were you involved in this bank raid at
Ballaghaderreen today?" and the applicant said, "yes, I
was" and bowed his head.
The Special Criminal Court found that the applicant
had spoken the words of admission. Several arguments
were advanced to the Court of Criminal Appeal to the
effect that the Detective Garda who heard the admission
was deliberately lying. The Court of Criminal Appeal
stated that the Court of Trial heard and saw the witness
and the finding of fact in relation to his veracity could not
in the circumstances of the case be set aside.
Two separate grounds were advanced on the question of
the admissibility of the oral admission. First, it was
submitted that jihe admission was not a voluntary one, and
secondly it should not have been admitted as there had
been a breach of the Judges' Rules.
The Court of Criminal Appeal rejected the submission
that the admission was induced by any threat made either
explicitly or implicitly by the Detective Garda. The Court
stated that the Detective Garda had not been under any
obligation to caution the applicant before the incrimi-
nating words were spoken. In the circumstances, the
Judges' Rules had not been breached.
No Breach of Constitutional Rights
A footprint had been found on the counter of the bank at
Ballaghadereen. There was evidence that it was from the
shoe of Colm O'Shea. It was alleged that the applicant's
shoes and clothing were unlawfully taken from him while
he was in • Galway Regional Hospital. While in the
intensive care unit of the hospital, swabs were taken from
his hands. Wh en asked if he was agreeable to this, the
applicant had nodded his head. The Court of Trial had not
been satisfied that the applicant had consented to the
taking of the swabs and concluded that there had been an
illegal seizure of the clothing as well as of the matter from
the applicant's hands.
The Court of Trial, however, decided that there had
been no breach of the applicant's constitutional rights and
considered how its discretion should be exercised in
relation to the evidence obtained by the Gardai in the
Regional Hospital. The Court of Trial considered that the
public interest was best served by the admission of the
evidence with regard to the applicant's clothes, the swabs
taken from his hands, the sample taken from his hair and
the blood samples. The Court of Trial concluded:
"To hold otherwise, the Court considers, in the words
of Mr. Justice Lavery, in
Attorney General v.
O'Brien
20
'would be wrong to the point of absurdity and would be
bringing the administration of the law into well
deserved c on t emp t . '"
The Court of Criminal Appeal agreed.
Capital Murder
Submissions were made to the effect that the evidence
did not establish that the c ommon enterprise of the raiders
involved an agreement to kill or cause serious bodily harm.
It was argued that even if there had been a c ommon
enterprise, it had not been established that the applicant
had not withdrawn his consent to this c ommon enterprise.
The Court rejected those submissions stating the verdict of
capital murder and the conviction of the applicant must
stand. Accordingly, application for leave to appeal was
refused.
Sentence of Death
The Court of Criminal Appeal referred to a
communication which the Court received on behalf of the
Minister for Justice concerning the place for the carrying
out of the sentences — in the event of the applications for
leave to appeal being refused. The Court stated that the
law provides for the sentence of death to be carried out by
hanging. The Court stated that the Court of Trial did not
have to specify the place of execution.
The Court of Criminal Appeal finally stated in its
judgment that "each applicant be detained in a lawful
prison and be taken thence to a place of execution."
Commutation
The sentence of death was later commuted by the
President on the advice of the Government. •
Footnotes
15.
People v. Farrell
[1978], IR. 13 at p. 20.
88