Campion v DPP
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Birmingham J.,Sheehan J. |
| Judgment Date | 30 November 2015 |
| Neutral Citation | [2015] IECA 274 |
| Docket Number | No. 209/09 |
| Date | 30 November 2015 |
[2015] IECA 274
The President
Birmingham J.
Sheehan J.
No. 209/09
THE COURT OF APPEAL
Crime & sentencing — Murder — Appeal against conviction — Admission of statements made out of court — S 16 Criminal Justice Act 2006
Facts: The appellant had been convicted of murder in 2009. He appealed against his conviction on the point of whether statements relating to the murder made out of court should have been admitted.
Held by Birmingham J, that the appeal would be dismissed. The appellant's complaints in relation to the admission of statements made by the prosecution witness under s 16 of the Criminal Justice Act 2006 were without merit. The trial judge had handled the matter with the necessary care and skill, and the verdict reached by the jury was one open to them on the evidence before them.
On the 28th May, 2009, in the Central Criminal Court, a jury convicted the appellant by a ten to two majority of the murder of Mr. Frank Ryan on the 17th September, 2006, in Moyross, Co. Limerick. On the 8th July, 2009, the appellant received the mandatory life sentence which was backdated to the 23rd September, 2006. Mr. Campion now appeals his conviction to this Court.
The key facts as alleged or proved at trial may be summarised as follows. The deceased was driving his Toyota car, accompanied by a Mr. Erol Ibrahim, a friend of his, in the Moyross area of Limerick on the 17th September, 2006. When they left the deceased's home in Delmege Park, they drove approximately 100 metres around the corner and there picked up the appellant, Mr. Gary Campion. The appellant sat in the rear of the car. The allegation is that as the deceased was driving, the appellant leaned forward and shot the deceased in the back of the head and then leaned in between the two front seats so as to steer the car until it came to a stop. The appellant then got out of the car, went around to the front passenger seat and leaned in over Erol Ibrahim whereupon he shot the deceased again. The appellant is alleged to have made threats to Mr. Erol Ibrahim and then to have left the scene.
Mr. Ibrahim gave a number of statements to the garda?. In his initial statement, made very shortly after the incident, he denied knowing who shot the deceased. This was repeated by him the following day and he was then arrested for withholding information. While detained following his arrest at Moyross garda station, a member of the family of the deceased, a Mr. Peter Ryan, arrived at the garda station wishing to see the detainee. When he met Mr. Ibrahim, Mr. Ryan conveyed to him the family's wish: that Mr. Ibrahim should tell the truth and that if he did this, he would not be labelled a 'rat'. Mr. Ibrahim then declared that it was the appellant who shot the deceased. This declaration was not video taped, but a short memo was taken by garda?. In subsequent video taped interviews, the appellant repeated, and to some extent expanded upon, what he had said during the encounter with Mr. Peter Ryan.
The other evidence of significance at trial was that the garda? contended that when, on the 23rd September, 2006, the appellant was arrested, on the way to the garda station he made certain incriminating comments that were copied down by one of the garda? who was present, Detective Sergeant O'Callaghan. During the course of subsequent interviews with him while detained, the appellant was questioned about these alleged remarks and he denied making them.
In the written submissions a number of grounds of appeal relating to Mr. Ibrahim were outlined. The key feature of the trial was that statements of Erol Ibrahim made out of court and from which he resiled were sought to be admitted in evidence for consideration by the jury pursuant to s. 16 of the Criminal Justice Act 2006. Just as the focus of attention at trial was on the Ibrahim statements, so too the decision of the trial judge to admit the statements into evidence, and the subsequent treatment of the evidence at trial formed the central feature of this appeal.
It should be explained that in the immediate aftermath of the incident Mr. Ibrahim, apparently in a state of some considerable distress, phoned the emergency services. The first garda? who came on the crime scene commented on his distressed state. In his first witness statement that was made on the evening of the murder, Mr. Ibrahim denied knowing who had shot and murdered Mr. Frank Ryan and repeated this the following day. He was then arrested and detained pursuant to the provisions of the Offences Against the State Act 1939 as amended. During the course of his detention at Moyross garda station, he was interviewed six times. In all, these interviews lasted just short of nine hours. During these six interviews Mr. Ibrahim did not identify the gunman. However, in the course of the seventh interview, which commenced at 16.50 on the afternoon of the 19th September, 2006, Mr. Ibrahim named Mr. Campion as the gunman and then repeated this, and to some extent elaborated on this, during the course of five subsequent interviews.
Between the sixth interview and the crucial seventh interview, at approximately 4.30 pm, Mr. Ibrahim was brought by Detective Sergeant O'Callaghan to an interview room. There he met Mr. Peter Ryan, brother of the deceased, who along with other members of the Ryan family had come to the garda station. While the precise details of what transpired in the interview room were the source of some controversy at trial, it appears clear that Mr. Peter Ryan, speaking on behalf of the Ryan family, urged Mr. Ibrahim to tell the truth. Significantly, he is reported to have told Mr. Ibrahim that if he told the truth that he would not be regarded as a 'rat'. A note of what transpired in the interview room was taken by Detective Sergeant Cleary, who was also present. This note was signed by Mr. Ibrahim during the course of the last interview that was conducted with him on the 20th September, 2006, which commenced at roughly 8.40 am.
When called to give evidence on the second day of the trial, Mr. Ibrahim reverted to his original position that he did not know the identity of the gunman. He accepted that he had previously told the garda? that the gunman was Gary Campion. However, he said that this was lies and that he would have said anything in order to get out of custody.
As indicated, apart from the statements of Mr. Ibrahim, which were admitted following extensive legal argument, the other significant evidence relied upon by the prosecution was the remarks alleged to have been made by Mr. Campion following his arrest. On the 26th September, 2006, the appellant was arrested and brought to Mayorstone garda station by Detective Inspector Mulcahy, Detective Sergeant O'Sullivan, Detective Garda Cleary and Garda Tony Flaherty. The prosecution case was that, while being brought to the garda station, he uttered certain remarks, which were taken down by Detective Sergeant O'Sullivan in his official notebook. As recorded, these remarks were: 'if you left me out longer I would have killed more people. Fucking scumbags is all you are. I will clean up Moyross, not ye. I have lots more to kill. I am glad it was ye that came'. According to the garda?, Mr. Campion then asked who 'ratted' him out and 'who were the rats?'
The garda evidence was that as the vehicle approached the garda station, the appellant made a further remark directed in particular to Detective Sergeant O'Sullivan. According to the Detective Sergeant, Mr. Campion turned towards him and directed a remark as follows: 'The next time I see you, you will suck my cock, you fucking will, if I leave you with anything to suck with, fucking rats.' The appellant was questioned about these remarks while detained in custody and denied having ever made them.
The appellant has formulated the grounds of appeal that related to the statements of Mr. Ibrahim as follows:
1. The learned trial judge erred in acceding to an application by the prosecution to admit previous statements of the key prosecution witness, Erol Ibrahim, under s. 16 of the Criminal Justice Act 2006;
2. The learned trial judge erred in failing to reconsider the decision to admit the statements under s. 16 of the Criminal Justice Act 2006 in the aftermath of Erol Ibrahim's testimony and the testimony of all other witnesses;
3. The learned trial judge failed to direct the jury properly as to the appropriate weight to be attached to statements admitted under s. 16 of the Criminal Justice Act 2006, as well as the need for particular caution in the particular circumstances of this case;
4. In addition, the learned trial judge erred in failing to give any reasons for his decision to admit the statements under s. 16 of the Criminal Justice Act 2006.
The principal ground of appeal, that the judge erred in acceding to the application by the prosecution to admit the statements of Mr. Ibrahim, is itself based on ten sub-grounds which were as follows:-
(i) The original statement from which the further statements relied upon by the prosecution continued was not video recorded in breach of the Criminal Justice Act 1984, (Electronic Recording of Interviews) Regulations 1997;
(ii) The original statement was taken in breach of the obligation to caution the witness and in breach of rule three of the Judges' Rules;
(iii) The original statement was taken in breach of the requirements of fundamental fairness;
(iv) The original statement was not voluntary and was instead the...
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