DPP v Conroy
1985 WJSC-CCA 1985
THE COURT OF CRIMINAL APPEAL
DPP V FARRELL
DPP V LYNCH
Admissibility - Statement of accused - Prosecution's reliance on statement dependent on issue of fact - Procedure for determining that issue - Whether trial within trial necessary - Whether that issue to be determined by judge or by jury - Stage of trial at which issue to determined - ~The People v. Lynch~ examined - (5/84 - C.C.A. - 6/6/85). - -
|The People v. Conroy|
Issue of fact - Determination - Procedure - Whether judge or jury to determine issue - Whether trial within trial necessary - Stage of trial at which issue may be determined - The People v. Lynch examined - (5/84 - C.C.A. - 6/6/85). - -
|The People v. Conroy|
JUDGMENT of the Court delivered by McCarthy J. on the 6th day of June 1985
The main challenge to the accused's conviction in this case is that learned trial judge erred in certain procedural rulings which he made in the course of the trial; in particular, that he failed to observe the procedural requirements which were laid down by the Supreme Court in The Director of Public Prosecutions .v. Lynch. As the submissions made in support of this challenge are based, in the view of this Court, on a misunderstanding of what that case decided it would be as well to start this judgment with a comment on it.
In Lynch the Supreme Court quashed a conviction of murder holding that the trial judge should in the exercise of his discretion have excluded an incriminating statement as the circumstances in which it was procured were oppressive. But a further issue in relation to the incriminating statement was considered by the Court. At the trial the accused had alleged that having gone voluntarily to the garda station in which it was made he later had been detained there against his will. It was urged on his behalf that from then on he was in illegal custody in breach of his constitutional rights and the statement made during such custody should not have been admitted in evidence. The issue of fact which was raised was whether the accused had requested permission to leave the station and had been refused. This issue had been tried by the trial judge in the absence of the jury in a trial-within-the-trial and in their judgments the Chief Justice and Mr. Justice Walsh commented on the propriety of this procedure.
In his judgment the Chief Justice made a very clear distinction between (a) statements made by an accused which are not voluntary; (b) statements made by an accused which are unfairly obtained; and (c) statements made by an accused obtained in breach of constitutional rights (see page 79). In relation to an issue arising as to whether a statement had been secured in breech of constitutional rights the Chief Justice had this to say:
"This latter issue seemed to depend on whether as the gardai swore the appellant had remained in the garda station of his own free will.... or whether (as he swore) he was detained against his will … This conflict of evidence, and the true facts, ought to have been decided by the jury .... In my view the jury either by a specific question or by an appropriate direction ought to have been asked to decide as a question of fact material to the defence, whether the appellant's evidence that he had been held against his wishes was or was not true."
A similar distinction is to be found in the judgment of Mr. Justice Walsh. He agreed with the opinion of the Chief Justice that when a question arises as to whether or not a person was deprived of his liberty that this is a question to be "resolved ultimately by the jury" (page 86). And he went on to point out that if a question arises as to whether a statement is voluntary, then this is a matter for the " trial judge in the first instance" to decide upon its admissibility, the truth of the statement (if admitted) being a matter for the jury.
It does not follow from these judgments that whenever the admissibility of an incriminating statement is raised at a trial that preliminary issues which arise must always be resolved by a jury (and not by a judge) in a trial within-the-trial. The admissibility of an incriminating statement may be challenged on a wide variety of grounds, for example that it was not voluntary, or that it had been taken in breach of the Judges Rules, or in circumstances which were so unfair that the court in the exercise of its discretion should exclude it. In these cases when a preliminary objection is taken before evidence is tendered and the court is satisfied that a conflict of fact arises such a conflict had, up to Lynch, always been determined by the trial judge himself in the absence of the jury. Having determined the facts he then made a ruling on the point of law which arose. The judgments in Lynch did not decide that such procedures should in every case be discontinued. They dealt specifically and only with the situation where in the course of a trial admissibility is challenged on the ground that a statement was taken when there had been a conscious and deliberate breach of the accused's constitutional rights. Only when such an issue is raised did the Court consider that any conflict of fact which arises in that issue be determined by the...
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