DPP v Breen

• Jurisdiction: Ireland
• Judge: Mr Justice Fennelly
• Judgment Date: 16 December 2008
• Neutral Citation: [2008] IECCA 136
• Docket Number: 263/07,[C.C.A. No. 263 of 2007]
• Court: Court of Criminal Appeal
• Date: 16 December 2008

People at the suit of the Director of Public Prosecutions

V

Michael Breen

263/07

Court of Criminal Appeal

Abstract:

Criminal law - Appeal - Evidence - Admission of incriminating statements - Whether admissible - Whether statements should have been admitted into evidence - Whether appeal should be allowed

Facts: the applicant had been convicted on a single count of possession of a firearm in such circumstances as to give rise to a reasonable inference that he had the gun in his possession or under his control for an unlawful purpose contrary to section 27A of the Firearms Act 1964, as amended. He applied for leave to appeal against that conviction on the ground, inter alia, that an allegedly incriminating statement was unlawfully admitted into evidence. That statement had been obtained by the Gardai whilst the applicant was being physically restrained by them but before he had been arrested.

Held by the Court of Criminal Appeal in allowing the appeal and quashing the conviction that the verbal answers given by the applicant should not have been admitted into evidence by the trial judge as he was being restrained in circumstances where there a number of armed gardai present.

Reporter: P.C.

1 Judgment of the Court of Criminal Appeal delivered the 16th day of December 2008 by Mr Justice Fennelly

• 1. The applicant, Michael Breen, was convicted 15th October 2007 in the Dublin Circuit Criminal Court after a four-day trial before Judge McCartan and a jury of on a single count of possession of a firearm in such circumstances as to give rise to a reasonable inference that he had the gun in his possession or under his control for an unlawful purpose contrary to section 27A of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law Jurisdiction Act, 1976 and as amended by section 14 of the Criminal Justice Act, 1984 as further amended by section 15 of the Offences against the State ( Amendment) Act, 1998.

• 2. He was sentenced on 22nd November 2007 to seven years imprisonment. He now applies for leave to appeal against that conviction and sentence. He has advanced four distinct grounds of appeal relating to the admission of an allegedly incriminating statement, to references during trial to his failure to comment when questioned, to the sufficiency of the learned judge's charge and to the sufficiency of the evidence relating to the nature of the alleged firearm.

2 The facts

3 3. The factual background can be summarised as follows.

4 4. The entire incident related to an apparent attempt to break in to a dwellinghouse at 61 Knocklyon Road, Templeogue.

• 5. On 15th March 2006 at about 4.20 pm the Garda Síochána, on the basis of confidential information, mounted a surveillance operation on a silver Volkswagen Bora motor car at Bawnogue Shopping Centre in Clondalkin. This involved Gardaí from the Special Detective Unit and from the Garda National Bureau of Criminal Investigation, a number of whom were armed. The Volkswagen car was owned and driven by the applicant. It was driven from Clondalkin village to Knocklyon Road and parking on Lansdowne Park, Templeogue. The applicant was accompanied by two passengers, namely William Nicholson and Christopher Kearns. The three occupants got out of the car. The applicant and William Nicholson were dressed in dark clothing with dark hats. Christopher Kearns took a black holdall from the back of the car from which he removed a high visibility fluorescent jacket and which he then put on.

• 6. The three men walked from Lansdowne Park towards Knocklyon Road. As they reached the Knocklyon Road junction, the applicant and William Nicholson turned left and walked down that road towards Firhouse Road. Christopher Kearns separated from the other two men and walked across the Knocklyon Road and through a pedestrian entrance into Coolamber Court. Very shortly afterwards Christopher Kearns was observed walking back out onto the Knocklyon Road from Coolamber Court, he was now wearing a motorcycle helmet and he was carrying a small box and what looked like a notepad. The holdall was slung over his shoulder and he also walked down Knocklyon Road. He appeared to be dressed like a motorcycle courier.

5 7. The applicant and William Nicholson crossed Knocklyon Road; Christopher Kearns walked down Knocklyon Road some distance behind

6 them. Christopher Kearns stopped outside no. 61 Knocklyon Road. He looked at the notebook as if he were a courier checking an address. He called to the applicant and William Nicholson who had walked past no. 61 and now turned and walked back towards him. Christopher Kearns handed the holdall bag to William Nicholson and all three men entered the driveway of no. 61.

• 8. William Nicholson and Christopher Kearns walked towards the door at the right side of the house. The applicant crossed the lawn and approached the front window of the house. At approximately 4.55pm the Gardaí converged on no. 61 Knocklyon Road. One member was armed with an Uzi submachine gun. They caused a loud noise or bang as a distraction device. The applicant ran across the front lawn of the house where he was stopped. The Gardaí called upon him to lie down and he did so. The Gardaí overcame and detained the applicant as well as William Nicholson and Christopher Kearns. Their purpose was to secure the area for the safety of the Gardaí, the individuals themselves and the public. However, they did not effect arrests until after the occurrence of the events next described which are central to the first ground of appeal.

• 9. The applicant was handcuffed and placed lying face down on the ground. He was in that position when Detective Garda John Keane of the Emergency Response Unit arrived on the scene with a colleague. The three men were already lying on the ground handcuffed. Detective Garda Keane was instructed to search the applicant. Detective Garda Keane also explained that firearms had been "mentioned in the brief" and that "the first thing you do ...is immediately search him, to make sure that not only your colleagues are safe, but that you are safe, the public is safe." He cautioned the applicant. He found on his person a pair of gloves and a black woollen balaclava stuffed into the inside pocket of his jacket, a set of Volkswagen keys and a mobile phone. (The applicant at his trial denied that he had any balaclava and claimed that the Gardaí had planted it on him.)

7 10. He asked him a number of questions. The questions and the applicant's answers were as follows:

8 He asked him his name and he replied "Michael Breen"

9 "What are you doing here?" and he replied "I am only the driver, I am only the driver"

10 "How many of you are there?" he replied "three"

11 "Have you any weapons on you?" he replied "No".

12 "Where is the firearm?" he replied "in the bag".

13 "Is this your balaclava?" he replied "yes".

14 "Are these your black woollen gloves?" he replied "yes".

15 In relation to the Volkswagen key found in Michael Breen's jeans pocket, "is it yours?" He replied "yeah".

16 In relation to the car, "where is it?" he replied "across the road".

17 "Is there anything in it?" he replied "it's full of stuff out of the house".

18 "Is everything there yours?" he replied "yeah".

19 "Do you have a phone?" he replied "yeah it's in my pocket".

20 11. Detective Garda Keane did not have his notebook with him, but made a note of these questions and answers on an A4 half sheet as soon as he returned to the office. (The applicant at trial denied that he gave any of these answers.)

21 12. At 17.05hrs Detective Garda Carney arrested the applicant under the

22 provisions of Section 30 of the Offences against the State Act, 1939, on suspicion of having committed a scheduled offence under part V of the Act, namely the unlawful possession of firearms at Knocklyon Road on the 15th March 2006. He also cautioned the applicant. He then conveyed him in the rear of a patrol car to Rathfarnham Garda Station.

23 13. Whilst en route to the Garda Station, according to Detective Garda Carney's evidence, the applicant said "I wish I had been shot in that garden, I am sick of it" and "I did not have a gun, did someone have a gun?" Detective Garda Carney noted these comments upon his arrival at Rathfarnham Garda Station.

24 14. The firearm found in the holdall bag was subsequently examined by Detective Garda Jarlath Lennon of the Garda Síochána Ballistics section, who identified it in evidence as a G10 black repeater air pistol .177 calibre which was incapable of discharging pellets or darts as it was designed to do. He said that it fell within the description in Section 4(1) (f) of the Firearms and Offensive Weapons Act, 1990.

25 15. The applicant, while detained pursuant to section 30 of the Act of 1939, was questioned extensively but exercised his right to remain silent. He said either "no comment" or did not answer.

26 The voir dire

27 16. Counsel for the applicant objected to the admissibility of the verbal statements alleged to have been made to Detective Garda Keane on the ground that, as counsel expressed it, there was an issue in relation to the applicant's "status when he made the first verbal." It was also alleged that that there had been breaches of the Judges' Rules, and general unfairness and oppression. It was not submitted that the statement was not voluntary. The trial judge initially ruled the statement made to Detective Carney in the car inadmissible as being of no probative value, but it was admitted later at the request of the defence.

28 17. During the voir dire, Detective Garda Keane gave the evidence mentioned above concerning the circumstances of his searching, cautioning and questioning of the applicant. He accepted that the applicant was lying face down and handcuffed, but denied that there was an Uzi submachine gun pointing at him,...