D.P.P. -v- Michael Murphy, [2005] IE CCA 52 (2005)

Docket Number:36/04
Party Name:D.P.P., Michael Murphy
Judge:Kearns J.
 
FREE EXCERPT

Kearns J.

O'Donovan J.

McKechnie J.

THE COURT OF CRIMINAL APPEAL[C.C.A. No. 36/04 ]BETWEEN THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)PROSECUTOR/RESPONDENT AND

MICHAEL MURPHYAPPELLANTJUDGMENT of Mr. Justice Kearns delivered on the 5th day of May, 2005

The appellant was convicted of murder in the Central Criminal Court on 13th February, 2004 and sentenced to life imprisonment. The present application is one for leave to appeal against conviction.

The evidence in this case established that Ms. Bettina Poeschel, a young and healthy German tourist, disappeared on the 26th September, 2001 while travelling on foot between Drogheda and Newgrange where she intended visiting the archaeological site. A massive police hunt was set in train and ultimately the body of Bettina Poeschel was found in a copse by the Donore Road, Drogheda, in the County of Louth on 17th October, 2001. Professor Harbison, then the State Pathologist, gave evidence that the body had been at the particular location for a considerable period, during which time, unfortunately, various scavenging animals had damaged and removed parts of the body. Parts of the structure of the throat were missing so that Professor Harbison could not say how Ms. Poeschel had died. He could not rule out strangulation, but at the same time could not establish a specific cause of death. He gave evidence that the deceased had not survived very long after eating some food before she died. She had not suffered from any chronic disease and he thought that death by natural causes unlikely as the deceased was a young person in good health. He could not say that death occurred where the body was found, but that it was possible that the body had been thrown from the roadway to the position where it was subsequently located. He thought it unlikely that the deceased could have been force- marched to the position where the body was found.

Forensic examination revealed traces of semen in high vaginal swabs taken from the body of the deceased. On 24th October, 2001 the appellant was interviewed by the gardaí in Drogheda and provided a hair sample which, by 26th October, 2001, was known by the gardaí to match the DNA profile found in the swabs taken from the body of the deceased. In the course of being interviewed on 24th October, 2001 the appellant was also shown a photograph of the Bettina Poeschel but denied ever having seen her.

A great deal of other circumstantial evidence had been marshalled by the investigating gardaí, which included the accounts of three Latvian workers for whom the appellant had responsibility in the Drogheda area on the date of disappearance of Bettina Poeschel. They gave evidence that the appellant had left the work site near Drogheda that morning and had told them he was going to visit his doctor with a back complaint. In fact, later evidence established that he did not visit his doctor until the following day. There were other sightings of a motor car which matched the description of the appellant's motor car in the vicinity of the disappearance on the day in question, and further sightings of a vehicle which matched that description were furnished by three young girls who had seen the vehicle in the vicinity of where the body of Bettina Poeschel was subsequently found. There was further evidence that the appellant had taken bleach or cleaning fluid from his worksite. A cleaning fluid of this nature appeared to have been applied to the deceased's underwear which was found around her knees where the body lay. The deceased's trousers, socks, and red shoes were missing from the site, but were later discovered in a skip near Donore Graveyard on the 2nd of November, 2001.

The appellant was arrested at 8.10 am on 27th October, 2001 under s. 4 of the Criminal Law Act, 1997 and was brought to Drogheda Garda Station where he was detained pursuant to the provisions of s. 4 of the Criminal Justice Act, 1984. On that day his initial period of six hours detention was extended by Superintendent Doggett of Drogheda Garda Station, the appellant being ultimately charged within such second period of detention at about 7pm that evening with the murder of Bettina Poeschel.

During the course of his detention, the appellant was interviewed by various members of the Garda Síochána. He also received a visit from and consulted with his solicitor. His answers to various questions put to him are contained in memos of various interviews which, in a form ultimately ruled upon by the trial judge, were permitted to go to the jury.

In the course of these interviews the appellant was advised that semen found in Ms. Bettina Poeschel's body had been examined and that his DNA was identified from the specimen found in her body and that there was both forensic and circumstantial evidence linking him with Bettina Poeschel. He was asked to explain what had happened on the day of her disappearance. The memo of the interview (exhibit 32) records that the appellant stated:-

"I cant talk about this, just charge me with it.".

In the course of the afternoon, the appellant received a further visit from his solicitor and shortly afterwards requested to see his girlfriend Samantha Johnson. While he sought a private visit with her, this request was not granted and the exchange between the appellant and Samantha Johnson was recorded as follows:-

Samantha Johnson: "Did you do it?

Michael Murphy: What do you think

S.J. Tell me did you do it?

M.M. I'm sorry Samantha.

S.J. Did you do it, Michael, tell me the truth.

M.M. Don't raise your voice".

Samantha Johnson left the interview room at about 4.40 pm. The memo of the relevant interview notes (exhibit 33) records that the appellant was visibly shaken after this visit. The memo of interview then records the following exchanges:-

Q. "Michael will you tell us the full truth about what happened?

A. I'm sorry."

Prisoner breaks down sobbing with his head in his hands and shaking.

Q. "Tell us what happened?

A. Just tell that girl's parents I'm sorry for taking her life and what I did to her,

I'm so, so sorry

Q. How did you kill her, Michael?

A.. I don't want to say anything else about it. I'm just so sorry about it."

During the trial, the appellant did not give evidence, nor was there any evidence adduced to suggest that these words were not spoken.

Objection was, however, taken at trial to the admissibility of the questions asked and answers allegedly furnished during this detention on a number of grounds.

Firstly it was contended that there was a sufficiency of evidence available to the gardaí at the time of arrest to charge him with murder at that stage. The evidence available consisted of the DNA evidence and the fruits of the other enquiries and investigations undertaken by the garda into the surrounding circumstances. It was thus contended that his detention, and the extension thereof by Superintendent Doggett, was entirely unjustified and unlawful. The justification offered by Superintendent Doggett for the detention and the extension thereof was based on the requirement to search the appellant's dwelling, to hold an identification parade in which the appellant would be involved, a search of his car and the taking of finger prints and palm prints. The time was also used for the purpose of questioning the appellant.

It was vigorously contested on behalf of the appellant that these further searches or enquires did not require the detention of the appellant and in fact yielded up nothing which added to the investigation or which was relied upon in evidence. A witness who had been involved in the identification parade did not give evidence at the trial. The search of the appellant's car revealed nothing which advanced the investigation or which was relied upon in evidence. The witnesses who described the appellant's car simply identified that it was a car of that make and that colour. None of those witnesses, it was submitted, had identified the car as the appellant's car by reference to either its registration numbers and letters or by any other distinguishing mark. Further, there was no requirement to detain the appellant while Dr. Maureen Smith of the Garda Forensic Science Laboratory prepared a report in relation to the DNA evidence.

It was further contended that any interview of the appellant in the station following his arrest should have been electronically recorded. In this regard the appellant placed reliance upon s. 27 of the Criminal Justice Act, 1984 and the Criminal Justice Act, 1984 (Electronic Recording of Interviews Regulations, 1997, (S.I. No. 74 of 1997)) which came into force on 1st March, 1997.

The evidence in the present case established that electronic recording equipment had been installed in Drogheda Garda Station as of the 26th July, 2001, some three months prior to...

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