DPP v Conroy

• Jurisdiction: Ireland
• Judge: Henchy J.,Finlay C.J.,WALSH J.
• Judgment Date: 31 July 1986
• Neutral Citation: 1986 WJSC-SC 317
• Court: Supreme Court
• Docket Number: [C.C.A. 1984 No. 5]
• Date: 31 July 1986

1986 WJSC-SC 317

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

Hederman J.

24/86

DPP v. CONROY

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

v.

CHARLES CONROY

Citations:

COURTS OF JUSTICE ACT 1924 S29

DPP V LYNCH 1982 IR 64

AG, PEOPLE V CRADDEN 1955 IR 130

AG, PEOPLE V O'BRIEN 1965 IR 142

BRINKLEY'S CASE 1984 NIJB 8

CRIMINAL JUSTICE ACT 1984 S4

DPP V FARRELL 1978 IR 13

EMERGENCY POWERS BILL 1976, IN RE 1977 IR 159

HEALY, STATE V O'DONOGHUE 1976 IR 325, 110 ILTR 9, 112 ILTR 37

DPP V SHAW 1982 IR 1

CONSTITUTION ART 46.3

CRIMINAL JUSTICE ACT 1984 S25(1)

CRIMINAL JUSTICE ACT 1984 S25(2)

CRIMINAL JUSTICE ACT 1984 S25(4)

CRIMINAL JUSTICE ACT 1984 S25(5)

CRIMINAL JUCTICE ACT 1984 S25(3)

JACKSON V DENNO 378 US 368

STATE V TREANOR 1924 2 IR 193

SALMOND JURISPRUDENCE 11ED P68

DPP V AINSCOUGH 1960 IR 136

CHAN WEI-KUNG V R 1967 2 AC 160, 1967 2 WLR 352, 1967 1 AER 948

DPP V MCGLYNN 1967 IR 232

BARTLETT V SMITH 11 M&W 483

JONES V FORT 1828 MOO&M 196

BOYLE V WISEMAN 11 EX 360

R V MURRAY 1951 KB 391

MINTER V PRIEST 1930 AC 588, 1929 1 KB 655, 1930 AER 431

SPARKS V R 1964 AC 964

R V MCALOON 1959 OR 441

R V MCLAREN 1949 1 WWR 529

CONSTITUTION ART 38.5

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)(II)

NA CHUN-KWAN V R 1974 HKLR 319

CONSTITUTION OF THE US 14TH AMDT

CONSTITUTION ART 40.3

CONSTITUTION ART 40

AG V MCCABE 1927 IR 129

BASTO V R 91 CLR 628

WONG KAM-MING V R 1979 1 AER 939

Synopsis:

EVIDENCE

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 - Trial within trial required - Held that an issue of fact which has to be determined for the purpose of deciding whether or not an incriminating statement of the accused should be admitted in evidence at his trial should be determined for that purpose by the trial judge alone after he has heard the relevant evidence in the absence of the jury - Held that, if such statement is allowed to be considered by the jury, the weight to be accorded to the statement is a matter for the jury only - Counsel for the accused informed the trial judge that the accused's evidence would be that he was under the impression that he was in custody before he made the incriminating statement - Counsel sought a ruling by the trial judge that the accused was in unlawful custody when he made the statement - The trial judge refused to hear evidence of the circumstances in which the statement had been made as the judge considered that an issue relating to the accused being in custody had not been raised - Held that, as the trial judge had refused to investigate the issue of custody raised by counsel, the trial of the accused had been unsatisfactory - Conviction quashed and new trial ordered - ~The People v. Lynch~ [1982] I.R. 64 examined - Appeal from decision (6/6/85) of Court of Criminal Appeal - (24/86 - Supreme Court - 31/7/86) - [1986] IR 468 - [1988] ILRM 11

|The People v. Conroy|

SUPREME COURT

Appeal

Jurisdiction - Scope - Decision of Court of Criminal Appeal - Certificate specifying point of law of exceptional public importance - Appellate court decided certified point of law - Additional uncertified issue also decided by appellate court - Courts of Justice Act, 1924, s.29 - (24/86 - Supreme Court - 31/7/86) - [1986] IR 468 - [1988] ILRM 11

|The People v. Conroy|

1 JUDGMENT delivered on the 31st day of July 1986by Finlay C.J. [Hederman Conc]

2 Charles Conroy, the Appellant, was convicted on the 18th January 1984 by the Central Criminal Court, of murder. He applied after conviction for a certificate of leave to appeal to the Court of Criminal Appeal and that was refused. He then applied for leave to appeal to the Court of Criminal Appeal and on the 6th June 1985 that application wasrefused.

3 The Court of Criminal Appeal, however, on the application of Counsel for the Applicant granted a certificate pursuant to Section 29 of the Courts of Justice Act 1924to enable the Applicant to appeal to this Court. The certificate identifies the point of law of exceptional public importance involved intheappeal as being

"Where in the course of trial the admissibility of an inculpatory statement is challenged on the grounds that"

(a) it was obtained in conscious and deliberate breach of constitutional rights

(b) it was unfairly obtained

(c) it was not voluntary

1. In what circumstances are the relevant issues of fact to be determined by the jury?

2. At what stage of the trial is such determination to bemade?"

4 From the transcript of the evidence at the trial it is clear that the Appellant came to Claremorris Garda Station at approximately 10 p.m. on the 19th December 1981, the date on which the murder was committed. He remained in the Garda Station throughout that night and at approximately 10 a.m. on the morning of the 20th December 1981, made an inculpatorystatement.

5 At the trial, Counsel on behalf of the Applicant sought that issues of fact on three matters should be tried by the jury in order to determine the question of the admissibility of this statement.

6 Those matters were, firstly, as to whether at the time of the making of the statement the Applicant was in custody and detained against his will in the Garda Station or whether he was there voluntarily, with a view to establishing a base for an allegation that the statement was taken by a conscious and deliberate invasion of his constitutional rights. Secondly, the question as to whether the Applicant had repeatedly asked for a solicitor and had been refused access to one, and, thirdly a question as to whether the Applicant had sought an interview as the Garda witnesses alleged, with one of his co-accused, or whether that had been forced upon him by a member of the Garda Siochana.

7 The learned trial Judge refused to leave any issue to the jury on any of these three matters and his refusal is one of the grounds of appeal relied upon on behalf of the Appellant and in effect giving rise to the point of law certified by the Court of Criminal Appeal.

8 The issue thus arising involves consideration ofthe decision of this Court in The People v. Lynch 1982 I.R. During the course of the submissions in this appeal, not only were there arguments submitted with regard to the interpretation and working of the decision in The People v. Lynch, but on behalf of the Director of Public Prosecutions Counsel asked this Court to review that decision and to contemplate not following it.

9 This is the first issue which must be determined on this appeal. ThePeople v. Lynch was an appeal brought direct from a conviction for murder in the Central Criminal Court to this Court. The Appellant was in effect convicted on the contents of an inculpatory statement made by him after he had been in a garda station for a protracted period. The learned trial Judge heard the evidence which was relevant to the issue of the admissibility of the statement himself in the absence of the jury, as had been the universal practice up to the decision of this Court in that case, and came to the conclusion that the Appellant wasnotin custody at the material time and admitted the statement. The Supreme Court hearing the appeal consisted of O'Higgins C.J., Walsh J. and Kenny J., and unanimously held that the statement was inadmissible and that as a consequence the conviction must be quashed. The material portion of the judgment of O'Higgins C.J. is to be found at p.74 and is asfollows:

"The trial Judge exercised his discretion to admit these statements on the basis that the allegations made by the Appellant were untrue. In so doing, he ignored the features of oppression, harassment and fatigue which I have mentioned, and which should have caused the statements, even if prima facie voluntary, to be excluded. For this reason, I think his discretion was exercised on a wrong basis, and accordingly I concluded that the statement should not have been admitted and that the appeal should be allowed and that the conviction of the Appellant should be quashed."

10 He then later on, on the same page, stated as follows:

"In view, however, of the wide range of argument advanced, it seems to me that something should be said of a general nature with regard to theadmissibility of evidence which is alleged to have been obtained irregularly in the course of garda investigation such as took place in this case."

11 The judgment then contains a wide-ranging review of the admissibility of evidence obtained by illegal and/or unconstitutional means, and, at page 79 of the Report the following passage which involves the questions at issue in this case occurs:

"One further matter deserves comment. In this case, apart from the defence that the incriminating statements were involuntary, or obtained unfairly, it was also part of the defence that these have been secured in breach of the Appellant's constitutional rights. 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, and had never asked to go home or to be put in touch with his wife, or whether (as he swore) he was detained against his will although requesting to be allowed to leave, was not permitted to go. The trial Judge disbelieved the Appellant and therefore did not consider further the question of illegal detention or breach of constitutional rights. In my view, this fact alone rendered the trial unsatisfactory. This conflict ofevidence and the true facts ought to have been decided by the jury. On the jury's finding as to where the truth lay, the trial Judge could decide whether or not there had been an illegal detention. 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...