DPP v Cummins
| Jurisdiction | Ireland |
| Judge | McGuinness J. |
| Judgment Date | 19 December 2003 |
| Neutral Citation | 2003 WJSC-CCA 3231 |
| Date | 19 December 2003 |
| Court | Court of Criminal Appeal |
2003 WJSC-CCA 3231
COURT OF CRIMINAL APPEAL
McGuinness J.
O'Neill J.
Murphy J.
BETWEEN
AND
Citations:
LARCENY ACT 1916 S23(1)
CRIMINAL LAW (JURISDICTION) ACT 1976 S5
FIREARMS ACT 1964 S27(B)(1)
CRIMINAL LAW (JURISDICTION) ACT 1976 S9
OFFENCES AGAINST THE STATE ACT 1939 S30
CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(F)
DPP V FINNERTY 1999 4 IR 364
HEANEY V IRELNAD 1994 3 IR 593
ROCK V IRELAND 1997 3 IR 484
NATIONAL BANK LTD, RE 1999 3 IR 145 1999 1 ILRM 321
CRIMINAL JUSTICE ACT 1984
OFFENCES AGAINST THE STATE ACT 1939 S52
COURTS OF JUSTICE ACT 1928 S5(1)(B)
Synopsis:
CRIMINAL LAW
Appeal
Confession evidence - Privilege against self-incrimination - Whether failure to accord applicant privilege against self-incrimination - - Offences Against the State Act 1939, sections 30 and 52 (08/2001 - Court of Criminal Appeal - 19/12/2003)
People (DPP) v Cummins
Facts: The applicant was convicted by a jury in the Circuit Criminal Court of various offences arising from a bank robbery. The applicant had been detained under section 30 of the Offences Against the State Act 1939 and questioned on that robbery. He refused to answer various questions put to him at that time relating to his movements on the relevant day. During cross-examination, the applicant was questioned about his refusal to answer questions put to him by the Gardai after admitting that his friends had been involved in a bank robbery. The trial judge, in his charge to the jury, commented on the applicant’s refusal to answer the Gardai’s questions whilst in detention. Section 52 of the Act of 1939, which modified the right to silence in so far as it made a failure to account for one’s movements, when requested to do so under that Act, an offence, was not relied upon by the prosecution. The applicant applied for leave to appeal against his conviction on the grounds, inter alia, that his constitutional right to silence had been violated by subsequent cross-examination on, comments about, and initiations to draw inferences from his failure to tell the Gardai certain matters.
Held by the Court of Criminal Appeal in treating the application for leave to appeal as the appeal and quashing the convictions that the course of the cross-examination of the applicant and the trial judge’s charge to the jury were in breach of the law against self-incrimination. Apart from section 52 of the Act of 1939, persons detained under that Act retained the constitutional privilege against self-incrimination, or right to silence.
Reporter: P. C.
Judgment of the Court delivered the 19th day of December 2003 by McGuinness J.
The applicant appeared before the Circuit Criminal Court in Cork on the 18 th day of May 2000 charged with robbery contrary to section 23(1) of the Larceny Act 1916 as substituted by section 5 of the Criminal Law (Jurisdiction) Act 1976and with carrying a firearm with criminal intent, contrary to section 27(b)(1) of the Firearms Act 1964as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976. These charges arose from a robbery of the Trustee Savings Bank at O'Connell Street, Clonmel, Co. Tipperary where an amount of £15,760.00 was stolen from Ms Deirdre Mooney, assistant manager of the bank.
The applicant was convicted by a jury on the 30 th day of May 2000 and on 23 rd day of June 2000 he was sentenced to thirteen years imprisonment in respect of the count of robbery and to eight years imprisonment on the count of possession of firearms, the two sentences to run concurrently from the 18 th May 2000.
The facts of the robbery in question were as follows. At about 4.45 p.m. on the 5 th May 1998 the robbery was carried out at the Trustee Savings Bank, O'Connell Street, Clonmel. Cash in the sum of £15,760.00 was taken in the robbery. A man wearing a balaclava and carrying a bag entered the bank, jumped in over the counter and took money from the cash boxes. A second and third raider remained outside the counter. One of these raiders carried a gun. A Garda on duty challenged the raiders as they came out of the bank but had a pistol pointed to his head and was told "back off". This Garda saw the raiders get into a red BMW car registration number 94 CN 984. The three men drove off in the car which was followed for a period of time but the car eventually eluded the Gardai.
At about 7.10 p.m. the same evening a Garda O'Hara was off duty in the town of Fermoy when he spotted the red BMW in a car park at the Leisure Centre in the town. He checked the bonnet of the car and found that it was extremely hot. He informed the Gardai in Fermoy of his finding. The car was later searched by the Gardai. Items were also found along the route it was thought that the car had travelled.
At 9.55 p.m. the applicant was taken out of a car registered number 92 C 14518 and arrested in Fermoy under the provisions of section 30 of the Offences Against the State Act. He was taken to Fermoy Garda Station where he was questioned.
There was no forensic evidence linking the applicant to the crime scene or to any of the exhibits which were produced at the trial.
The evidence adduced before the jury of the applicant's involvement in the crime was that of a purported confessior contained in a statement signed by the applicant made on the 7 th May 1998 and witnessed by two Gardai, a memorandum of interview beginning at 4.16 p.m. on 7 th May 1998 signed by Larry Cummins and witnessed by the same two Gardai, and a memorandum of interview or memo of exhibits shown to Larry Cummins on 7 th May 1998 and again signed by him and witnessed by Gardai.
The applicant relied upon fifteen grounds of appeal. The first eight grounds were lodged by his original solicitors while the remaining Additional Grounds were permitted by this Court to be adduced by Order dated 17 th February 2003.
The main grounds of appeal which were relied upon in argument before this Court were as follows:
1. That the applicant's privilege against self-incrimination was breached in the course of the trial as follows:
(a) In ruling on the admissibility into evidence of the alleged admissions of the applicant the learned trial judge laid particular emphasis on the failure of the applicant to account for his movements when asked to do so by the Gardai which said reliance by the learned trial judge amounted to a failure to accord to the applicant his privilege against self-incrimination.
(b) By the learned trial judge permitting the applicant to be cross-examined as to why he did not tell the Gardai that his brother was with him on the day in question.
(c) The learned trial judge referring in his charge to the jury to the applicant's explanation for his failure to tell the Gardai about his brother.
2. That in cross-examining the applicant about his previous convictions during the “trial within a trial” prosecution counsel violated section 1(f) of the Criminal Justice (Evidence) Act 1924.
3. That the learned trial judge erred in law and in fact in refusing to exclude from the evidence the narrative statement and memoranda of interviews or exhibits signed by Larry Cummins.
4. That in all circumstances of the detention and questioning of the applicant including the action of the Gardai in arranging for the applicant to have a meeting from which all witnesses were excluded with his fellow accused Mr Harte, and including the lack of candour on the part of the Garda witness in respect of the course of the applicant's detention and questioning, the applicant's constitutional rights to fair procedures and to a fair trial was violated.
5. That the learned trial judge erred in law and in fact in failing to grant a direction on the basis of the evidence presented by the prosecution.
6. That the learned trial judge erred in law and in fact in refusing the application to discharge the jury because of the prejudicial and unfair nature of the evidence of Detective Garda Thomas Murphy who had on two occasions stated in evidence that he had “known” the applicant for fifteen years.
7. That the learned trial judge erred in law and in fact in failing to give any or any adequate warning as regards uncorroborated statements of admission in accordance with the provisions of section 10 of the Criminal Procedure Act."
During the course of his detention in Fermoy Garda Station the applicant was interviewed by teams of two Gardai and was repeatedly asked to account for his movements on the day of the robbery. He refused to answer many of these questions; his other replies were largely uninformative. The prosecution sought to bring memoranda of these interviews into evidence, together with a narrative statement made by the applicant following a meeting alone with his fellow-accused Mr Harte. Submissions were made by both defence and prosecution counsel. The learned trial judge then made a ruling on this and other issues concerning the applicant's detention and questioning. During...
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