DPP v Connolly

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 07 May 2002
• Date: 07 May 2002
• Docket Number: [C.C.A. No. 167 of 2000]

Court of Criminal Appeal

[C.C.A. No. 167 of 2000]

The People (Director of Public Prosecutions) v. Connolly

The People (at the suit of the Director of Public Prosecutions)

Prosecutor

and

Martin Connolly

Accused

Cases mentioned in this report:-

Dillon v. O'Brien and Davis (1887) 20 L.R. [lr] 300.

Geneff v. Townshead [1970] W.A.R. 20.

The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33.

The People (Director of Public Prosecutions) v. Brazil (Unreported, Court of Criminal Appeal, 22nd March, 2002).

The People (Director of Public Prosecutions) v. Pringle (No. 1) [1995] I.R. 547.

The People (Director of Public Prosecutions) v. Quilligan (No. 3) [1993] 2 I.R. 305.

The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390.

Criminal law - Trial - Charge to jury - Uncorroborated inculpatory statements - Warning - Danger of conviction based on uncorroborated inculpatory statement - Whether especially desirable to warn of corroboration in confession cases - What amounted to "due regard" in warning - Suggested form of warning - Whether counsel for defence could put alternative version of facts to jury - Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119) - Criminal Justice Evidence Act 1924 (No. 37) s. 1(b) - Criminal Justice Act 1984 (No. 22) - Criminal Procedure Act 1993 (No. 40) s. 10.

Application for leave to appeal.

The facts of this case have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by Hardiman J., infra.

The accused was convicted of trespass and stealing by the Circuit Criminal Court (Judge McCartan and a jury) on the 16th October, 2000. On the 17th October, 2000, he served a notice of application for leave to appeal against both conviction and sentence. On the 17th December, 2001, the accused served a notice of abandonment with respect to the appeal against sentence and proceeded in his application for leave against conviction only.

The appeal was heard by the Court of Criminal Appeal (Hardiman, Lavan and O'Sullivan JJ.), on the 18th February, 2002.

The accused sought leave to appeal against his conviction by the Circuit Criminal Court, where the only evidence against him was a signed inculpatory statement allegedly made by him whilst in custody. He argued that this statement ought to be excluded as it had been taken in unfair circumstances as only one garda was present throughout the interview. It was also argued that the judge had made an improper reference to the failure of the accused to give evidence, he had asked the jury to consider why the gardaí would seek to prosecute the accused wrongly and that he had failed to give adequate advice with respect to the uncorroborated nature of the accused's statement. This ground was based on s. 10 of the Criminal Procedure Act 1993, which provided that where there was an uncorroborated inculpatory statement made by a defendant, the trial judge "shall advise the jury to have due regard to the absence of corroboration" although no particular form of words was necessary.

Held by the Court of Criminal Appeal (Hardiman, Lavan and O'Sullivan JJ.), in allowing the appeal against conviction on the issue of the warning on the absence of corroboration and ordering a retrial, 1, that the phrase "due regard", as used in s. 10 of the Criminal Procedure Act 1993, was intended to connote an objective, normative standard of regard or attention to be paid to the absence of corroboration. The phrase was not self-explanatory but rather called for elucidation in terms of the meaning of corroboration and the factual nature of the prosecution's case. What was "due" in any particular case would vary and some attempt had to be made to suggest the considerations relevant in giving the absence of corroboration. In order to advise meaningfully that "due regard" be paid to the absence of corroboration, the term was to be properly, and not merely technically, explained.

2. That it could also be necessary briefly and meaningfully to explain why it was natural to look for corroboration in serious cases and why in some cases even the most diligent search would be unavailing. Depending on the facts of the individual case, it might be desirable to say something about why corroboration would be especially desirable in confession cases.

3. That the phrase "something you should bear in mind" as used by the trial judge in his charge to the jury to advise on the issue of corroboration, was vague and less forceful than the statutory phrase "to have due regard".

4. That as a matter of law, there was no impropriety in questioning a suspect with only one garda present. At most it was a matter which might be urged against the reliability of the statement.

5. That if an accused wished to put a version of events before the jury, he could only do so by calling evidence or by giving evidence himself and unless and until such evidence was given, and was exposed to cross-examination, there was only one version of facts before the jury for them to accept if they were satisfied beyond reasonable doubt of its truth, or otherwise to reject. There was no such thing as the accused's version of events as presented by his counsel.

6. That there was no prohibition on the trial judge commenting on an accused's failure to give evidence, so long as it was fair.

7. That, although it would not be proper in all cases where there was a conflict of evidence to suggest that for that reason only, one side or the other was lying, in the circumstances of this case the denials of the gardaí were either true or knowingly false and the trial judge did no more than highlight the realities of the position.

Obiter dictum:That a transcript of counsel's speeches ought to be made as a matter of routine. It was an unfortunate omission and a false economy that they were not.

Semble:That the time could not be remote when a submission would be made that, absent extraordinary circumstances, it was unacceptable to tender in evidence a statement which had not been audio-visually recorded.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924 the judgment of the Court of Criminal Appeal was delivered by a single member.

Hardiman J. 7th May, 2002

On the 13th October, 2000, the accused was convicted by a jury in the Dublin Circuit Criminal Court of one count of entering a dwelling as a trespasser and stealing a video recorder and a playstation, and of a further count of taking possession of a mechanically propelled vehicle from the same dwellinghouse in Saggart, County Dublin. He was acquitted by direction of a third count of entering another dwellinghouse as a trespasser and stealing money. On the 17th October, 2000, he served a notice of application for leave to appeal against both conviction and sentence (three years' imprisonment). By notice of abandonment dated the 7th December, 2001, he withdrew his application for leave to appeal against sentence. He maintains his application for leave to appeal against conviction.

On the hearing of this appeal it was agreed that the only evidence against the accused was a signed statement in the nature of a confession, which he was alleged to have made whilst in custody pursuant to s. 4 of the Criminal Justice Act 1984.

The six grounds contained in the notice of application raised four substantive matters. First, it is alleged that the statement of the accused should have been excluded as it was taken in unfair circumstances. Secondly, it is claimed that the trial judge improperly commented on the fact that the accused had not given evidence and had stated that there was only one sworn version of events before the jury"thereby implying that the [accused's] version of events as presented by counsel should be given less weight".

Thirdly, exception was taken to a passage in the charge where the trial judge invited the attention of the jury to the question of why the members of the gardaí, who witnessed the accused's signature in his statement, would seek to prosecute him wrongly. Fourthly, objection was taken to the charge in that it allegedly did not contain sufficiently strong or detailed advice to the jury on the weight to be given to the fact that the accused's statement was uncorroborated.

In relation to the first of these points, the factual complaint was that for the part of the time that the accused was making a statement, only one member of An Garda Síochána, Sergeant Foley, was present. The other member, Detective Garda Higgins, joined them towards the end of the interview and was present while the accused was dictating the final part of his (short) statement and while the statement was read over and signed.

The accused, through counsel, accepted that the arrangements just summarised did not constitute a breach of the custody regulations and that there is no requirement of any nature that two gardaí should be present throughout any interview with a person in custody.

Indeed, the only attempt to regulate the number of gardaí to be present at an interview seems to be directed at avoiding a situation where a detained person might be intimidated by numbers. Paragraph 12(3) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 provides:-

"Not more than two members [of An Garda Síochána] shall question the arrested person at any one time and not more than four members shall he present at any one time during the interview."

There is no basis on which it can be urged that, as a matter of law, there is any impropriety in questioning a suspect with only one garda present. It is, at most, a matter which might be urged against the reliability of the statement. The court does not propose to interfere with the conviction on this ground.

The factual basis of the second point arises from something...