DPP v Cleary [Central Criminal Court]

 
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2001 WJSC-CCC 1673

THE CENTRAL CRIMINAL COURT

CC 0125/99
DPP v. CLEARY
THE DIRECTOR OF PUBLIC PROSECUTIONS
V.
JOHN CLEARY

Citations:

CRIMINAL JUSTICE ACT 1984 S4(2)

CRIMINAL JUSTICE ACT 1984 S4(1)

CRIMINAL JUSTICE ACT 1984 S4(3)

PEOPLE V WALSH 1980 IR 294

DUMBELL V ROBERTS 1944 1 AER 328

CRIMINAL JUSTICE ACT 1984 S4

PEOPLE V SHAW 1982 IR 282

MCCORMACK V DPP UNREP BUDD 20/3/1997 1997/10/3277

JENNINGS V QUINN 1968 IR 305

CRIMINAL LAW ACT 1976 S9

DPP V MCCANN 1994 IR 397

R V HEALY 1992 VLR 522

DPP V O'TOOLE & HICKEY UNREP HEDERMAN (CCA) 20.7.1990 1990/6/1662

CRIMINAL JUSTICE ACT 1984 S4(3)(B)

DPP V REDDON & HANNON 1995 3 IR 560

Synopsis:

CRIMINAL LAW

Arrest

Fair procedures - Evidence - Detention - Whether search of dwelling house carried out with consent - Whether arrest of accused lawful - Whether detention of accused lawfully extended - Criminal Justice Act, 1984 - Criminal Law Act, 1976 (1999/0125 CC - Herbert J - 7/12/01)

DPP v Cleary

1

MR. JUSTICE HERBERT, IN THE CENTRAL CRIMINAL COURT, DUBLIN, COMMENCING ON NOVEMBER 29, 2001 TRANSCRIPT OF RULING ON DECEMBER 7TH, 2001

2

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the above named proceedings.

Tel

872 2833

Fax

872 4486

After Hours

286 2097

E-mail

doyleaos@indigo.ie

THE HEARING RESUMED ON THE 7TH OF DECEMBER, 2001 AS FOLLOWS:
MR. JUSTICE HERBERT DELIVERED HIS RULING AS FOLLOWS:
3

Mr. White, on behalf of the accused, Mr. John Cleary, makes his first submission to the Court that there was wrongful delay in seeking a Section 4 (2) detention order under the Criminal Justice Act of 1984. Sub-section 2 of that Act contains the following phrase, "that person may be taken to and detained in a Garda Siochana station." No argument was raised in this case that there was not a lawful arrest at 08:20 hours on the 16th of January, 1999. It was not suggested to the Court that Detective Inspector Coburn did not have reasonable cause to suspect John Cleary of having committed an offence scheduled in sub-section 1 of Section 4 of the 1984 act.

4

"May" here is permissive and is not discretionary. It gives authority to do something which would otherwise be unlawful. No time is stipulated in sub-section 2 for the "taken" to a garda station as distinct from the detaining in that garda station for which strict provision is made by sub-section 3.

5

In the absence of such a provision Mr. White argues and I believe correctly, that the common law with regard to the preferring of charges should apply by analogy: that is, that the arrested person should be taken to the garda station with reasonable expedition and without undue delay. (See the case of The People -V- Walsh, 1980 Irish Reports 294 per O'Higgins, Chief Justice, with regard to reasonable expedition and without undue delay.)

6

Here the delay was relatively short. Mr. Cleary, on the evidence given to the Court, was arrested at 08:20 hours and sometime after 08:30 hours was taken to kilmainham Garda Station, arriving there at 08:55 hours.

7

During the ten minute or so interval in the house of his sister, Pauline Cleary, in answer to a question posed by Detective Inspector Coburn, the accused admitted that he had killed ken Foley. The question was put after the usual caution had been administered, which on the evidence of Sergeant Whitelaw and Detective Inspector Coburn, the accused said he understood. The questions and answers were recorded by Sergeant Whitelaw in his official notebook and that record was signed by the accused, John Cleary and witnessed by his father and by Sergeant Whitelaw and Detective Inspector Coburn.

8

In my view, the proposition that after an arrest upon a reasonable suspicion the member of An Garda Siochana, who effects the arrest should "make enquiries of the suspect with the view to ascertaining whether or not his suspicion is ill-founded." ( See Dumbell -V- Roberts, (1944), 1 All England Reports, 326, per Scott, L.J), cannot having regard to the provisions of the Constitution of Ireland apply in this State. Prior to the enactment of Section 4 of the Criminal Justice Act 1984the extraordinarily limited circumstances in which the Garda Siochana could question an accused after arrest are set out by Mr. Justice Walsh in the case of The People -V- Shaw, (1982) Irish Reports, page 28 and 30. The enactment of Section 4 by the Oireachtas may even have eliminated the necessity for such limited circumstances: I am not deciding this. I agree with Mr. White citing the decision of Mr. Justice Budd in Declan McCormack -V- The Director of Public Prosecutions, 20th of March, 1997, Court of Criminal Appeal, that the Constitutional guarantee of liberty to Mr. John cleary is not to be measured out in minutes and hours.

9

I rule that despite the relatively brief period of time involved in this instance, the members of An Garda Siochana had no authority either at common law or by statute to detain Mr. John Cleary in the house of his sister Pauline Cleary and to there put to him various questions. The fact that on the evidence neither John Cleary nor his father, who was present throughout, made any objection to this course of conduct and that the accused freely answered the questions put to him after caution that his answers might be taken down and might be given in evidence, does not validate this interview. Accordingly, I rule that Exhibit 7 was improperly obtained and the answers given and the fact of this interview and the questions put may not be used in evidence in this case.

10

The immediately next interview with the accused, John Cleary, took place at 09:32 in an interview room at Kilmainham Garda Station. The evidence of Sergeant Whitelaw and Detective Inspector Coburn was that Mr. Cleary was cautioned by Detective Inspector Coburn, asked did he understand the caution, answered "yes" and verified that with his signature. The evidence of Sergeant Whitelaw and Detective Inspector Coburn is that Detective Inspector Coburn then explained again to John Cleary why he was arrested and John Cleary replied "yes", indicating that he understood. Detective Inspector Coburn then asked John Cleary a series of questions which he freely answered. The questions and the answers were recorded in writing by Sergeant Whitelaw. These were then read over to John Cleary, who agreed that they were correct and signed them and his signature was witnessed by Sergeant Whitelaw and Detective Inspector Coburn.

11

The third question, the first if one excludes his being asked if he understood the caution and why he had been arrested, reads: "Question: You have told us already that you killed Ken Foley and what have you to say about it now? Answer: I did kill him."

12

Having ruled out his previous admission in this respect as improperly obtained this question and answer cannot be put in evidence.

13

Mr. White submits that the record of this interview, the voluntary statements made after caution by John Cleary at 14:45 (Exhibit 9), the record of the interview which commenced at 14:38 hours (Exhibit 10), the record of the interview which commenced at 18:41 hours (Exhibit 11) and the record of the interview which commenced at 13:20 hours (Exhibit 20) must also be excluded from the evidence to be put before the jury because of their close connection in time with the admissions made by John Cleary between 08:20 and 08:30 hours on the same day, the 16th of January, 1999 and because the State had not discharged the onus on it of satisfying the Court that any influence, which this now inadmissible confession of guilt had on the mind of John Cleary, had been dissipated.

14

The evidence of Sergeant Joseph McCarthy was that he was the Member in Charge at Kilmainham Garda Station on the 16th of January, 1999 between the hours of 06:00 and 14:00. He gave evidence that at 08:35 he explained his rights under the Custody Regulations 1987 to John Cleary. He told the Court that he told John Cleary at Least three times and that Garda Ann McGowan told John Cleary...

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