DPP v Byrne

JurisdictionIreland
JudgeFINLAY C.J.,WALSH J.,GRIFFIN J.,McCARTHY J.
Judgment Date03 April 1987
Neutral Citation1987 WJSC-SC 424
CourtSupreme Court
Date03 April 1987

1987 WJSC-SC 424

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.

133/84
DPP v. BYRNE
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS
Appellant

and

DERMOT BYRNE
Respondent

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP, PEOPLE V QUILLIGAN 1987 ILRM 606, 1986 IR 495

PEOPLE V WALSH 1980 IR 294

PEOPLE, DPP V FERRIS UNREP CCA 15.12.86 1986/5/398

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

HALSBURY'S LAWS 1ED V9 389

Synopsis:

CONSTITUTION

Personal rights

Liberty - Infringement - Detention - Extension - Failure of proof - Incriminatory statement of accused, made during unauthorised extension of period of accused's detention, ruled inadmissible - ~See~ Evidence, admissibility - Articles 38, 40 - (133/84 - Supreme Court - 3/4/87) [1987] IR 363 1989 ILRM 613

|The People v. Byrne|

EVIDENCE

Admissibility

Statement - Incrimination - Detention - Legality - Failure of proof - Statement, made during period of unlawful detention, ruled inadmissible - Section 30, sub-s. 1, of the Act of 1939 authorises a garda to arrest, without a warrant, a person whom he suspects of having committed a scheduled offence - Sub-section 3 of that section states that a person arrested under sub-s. 1 may be removed to, and detained in custody at, a garda station for a period of 24 hours from the time of his arrest, and that he may be so detained for a further period of 24 hours if a Chief Superintendent "so directs" - The accused was arrested pursuant to sub-s. 1 of s.30 and detained in a garda station - The accused made an incriminatory statement during the second period of 24 hours - The accused was arraigned in the Central Criminal Court on an indictment charging him with the commission of armed robbery - At the trial it appeared that the Chief Superintendent, who had directed the further detention of the accused, had died - A detective sergeant gave evidence that the Chief Superintendent had directed the witness verbally to detain the accused for a second period of 24 hours, that the witness had seen the Chief Superintendent signing a document to that effect, and the witness produced the document - The trial judge ruled, at the trial of the issue in the absence of the jury, that the evidence of the witness was inadmissible as proof of a direction to extend the accused's detention for a second period pursuant to sub-s. 3 of section 30 - The trial judge ruled that, in the absence of proof that the period of the accused's detention had been duly extended, the accused's incriminatory statement had been made while he was in unlawful custody and was, therefore, inadmissible as evidence against the accused - In the absence of other proof adduced by the prosecution, the jury returned a verdict of not guilty by direction of the trial judge - Held by the Supreme Court, in disallowing an appeal by the Director of Public Prosecutions, that the rulings of the trial judge had been correct - Held that it was a necessary inference from the provisions of sub-ss. 1 and 3 of s.30 that the Chief Superintendent who directed an extension pursuant to subs-3 should suspect that the person detained had committed an offence mentioned in sub-s. 1 of that section - Offences Against the State Act, 1939, s.30 - Constitution of Ireland, 1937, Articles 38, 40 -(133/84 - Supreme Court - 3/4/87)[1987] IR 363 1989 ILRM 613

|The People (DPP) v. Byrne|

STATUTORY INTERPRETATION

Implication

Suspect - Detention - Period - Extension - Suspicion of officer directing the extension - It is a necessary inference from the terms of sub.-ss. 1 and 3 of s.30 of the Act of 1939 that the officer who directs the extension of the period of detention pursuant to sub.-s. 3 should suspect that the person detained has committed one of the offences mentioned in sub.-s. 1 of that section - ~See~ Evidence, admissibility - Offences Against the State Act, 1939, s.30 - (133/84 - Supreme Court - 3/4/87) [1987] IR 1989 ILRM 613

|The People (DPP) v. Byrne|

1

JUDGMENT delivered on the 3rd day of April 1987by FINLAY C.J.

2

I have had the opportunity of reading the judgments which are about to be delivered by Walsh J. and McCarthy J. I agree with the conclusion reached in each of them that the learned trial Judge was correct in ruling that in the absence of evidence from the Chief Superintendent who at the time of the trial had died, as to his extension of the detention of the accused pursuant to the provisions of Section 30 of the Offences Against the State Act 1939that the Prosecution had failed to prove that the detention was lawful and therefore that a statement made during that period of the detention was inadmissible.

3

In so far as both of these judgments deal also with the original arrest of the accused pursuant to Section 30 of the Act of 1939 and the formula used by the arresting officer on that occasion, I am satisfied that this point did not arise during the course of the trial nor was any objection made on behalf of the accused to the legality of the original arrest, nor was it debated on appeal before this Court. In those circumstances, I would prefer not to express any view on the adequacy of the formula which appears to have been used. I would accordingly dismiss thisappeal.

4

JUDGMENT OF WALSH J.delivered on the 3rd day of April 1987 [HEDERHANAGR]

5

This is an appeal from the order of Mr. Justice Gannon sitting as the presiding Judge in the Central Criminal Court on the 20th January 1984 at the trial of the respondent.

6

This appeal is brought by the Director of Public Prosecutions against the ruling of the learned trial Judge which resulted in the Judge directing the jury to return a verdict of not guilty and the issue paper was signed by the foreman of the jury in accordance with the direction of the learned trial Judge that the accused was not guilty of the offence charged. The point upon which the case turned was the point as to the admissibility ofevidence of a conversation between Detective Sergeant Murphy and the accused during the period when the accused was under arrest. Objection was taken to the admissibility of this evidence on the grounds that it had not been proved that at the time in question the accused was under arrest in accordance with law. It is well established in a series of decisions of this Court and of the Court of Criminal Appeal that a person who is under arrest but his arrest is not in accordance with the law is being held in violation of his constitutional right to liberty. Therefore any evidence obtained during that period is inadmissible.

7

The evidence was that Detective Sergeant Murphy accompanied by Detective Garda Rock arrested the accused on the 5th September 1978 pursuant to s. 30 of the Offences Against the State Act, 1939.It was not at all clear from the evidence before the Court of what was the precise ground stated to be the ground upon which the respondent was arrested but it appears that according to the evidence of Detective Sergeant Murphy that it was on "suspicion of being involved in a scheduled offence under the Act". If that was all the accused was told then the arrest wasn't in accordance with the requirements of s. 30 - see the decision of this Court in the People ( at the Suit of the D.P.P. ) v. Quilligan. If however the transcript can be read as being to the effect that the answer to Q. 94 put by the Judge to Detective Sergeant Murphy viz "on suspicion of being involved in a scheduled offence under the Act, namely, the possession of firearms" was what the witness said he told the appellant rather than as his explanation to the Judge of what scheduled offence the witness had in mind only then section 30 was observed. The transcript is ambiguous. However the question raised in this case does not turn upon that, though it may have a bearing upon the point which is raised in the case. The respondent was then conveyed to Donnybrook Garda Station where he was told by Detective Sergeant Murphy that he was investigating an armed robbery at the Post Office in Bridge Street, Ringsend on the 1st September which, apparently is not a scheduled offence. There is no evidence that he was then rearrested on a suspicion of having committed an offence other than the earlier reference to a "scheduled offence" or that he knew that when he had been arrested that he was suspected of armed robbery: see People v.Walsh 1980 I . R . 294.

8

A lawful arrest under s. 30 of the Offences Against the State Act cannot endure for more than twenty four hours, if the accused has not been charged with an offence in the interval and then arrested or held in detention on foot of that charge. At the expiration of twenty four hours the prisoner must be released unless a detention for a further twenty four hours is directed by a Garda Officer not below the rank of Chief Superintendent, and that direction must be issued before the expiration of the initial twenty four hours.

9

In the present case evidence was given by Detective Sergeant Murphy to the effect that Chief Superintendent John Joy did sign an order for detention for the twenty four hours expiring at 11.45 in the forenoon of September 7th. It was stated that Chief Superintendent Joy signed that direction at 11.05 on the forenoon ofthe 6th at Dublin Castle. The respondent had been arrested at 11.45 on the 5th of September. When Detective Sergeant Murphy offered to produce the document in question its production was objected to by counsel for the respondent. At the date of the trial the Chief Superintendent who was already dead quite obviously could not be called to...

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