DPP v A.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IESC 33
• Court: Supreme Court
• Docket Number: [S.C. No. 351 of
• Date: 24 May 2012

[2012] IESC 33

THE SUPREME COURT

Denham C.J.

Hardiman J.

Fennelly J.

McKechnie J.

Clarke J.

[Appeal No: 351/2011]

DPP v D (A)

In the Matter of the Courts of Justice Act, 1924, Section 29(2)

Between/

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

Prosecutor

and

A.D.

Applicant/Appellant

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S21

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

DPP v D (A) UNREP CCA 25.7.2008 2008/17/3648 2008 IECCA 101

COURTS OF JUSTICE ACT 1924 S29

DPP v HEALY 1990 2 IR 73

DPP v BUCK 2002 2 IR 268

DPP v FINNEGAN UNREP CCA 15.7.1997 1998/4/977

DPP v MADDEN 1977 IR 336

PEOPLE v SHAW 1982 1 IR 1

AG v O'BRIEN 1965 IR 142

DPP v O'BRIEN 2005 2 IR 206

COURTS OF JUSTICE ACT 1924 S29(2)

COURTS OF JUSTICE ACT 1924 S29(5A)

CRIMINAL JUSTICE ACT 2007 S59

DPP v MCKEVITT 2009 1 IR 525

R v GALBRAITH 1981 73 CR APP R 124

DPP v M UNREP CCA 15.2.2001 2001/8/1990

CONSTITUTION

Personal rights

Fair trial - Reasonable access to solicitor - Conscious and deliberate breach - Admissibility of statement - Exclusionary rule - Causal link - Whether exculpatory statement inadmissible - Whether entire statement inadmissible - Whether statement could be severed - People (DPP) v Healy [1990] 2 IR 73 and People (DPP) v O'Brien [2005] IESC 29, [2005] 2 IR 206 considered - Appeal dismissed (351/2011 - SC - 24/5/2012) [2012] IESC 33

People (DPP) v D(A)

PRACTICE AND PROCEDURE

Appeal

Supreme Court - Appeal - Certificate - Discretion to hear additional point of law - Whether appropriate to hear additional ground - Courts of Justice Act 1924 (No 10), s 29 - Criminal Justice Act 2007 (No 29), s 59 - Ground allowed but appeal dismissed (351/2011 - SC - 24/5/2012) [2012] IESC 33

People (DPP) v D(A)

Facts The applicant had been convicted of offences of rape and assault. Leave to appeal against the conviction and sentence had been refused but the applicant was successful in obtaining a certificate to bring an appeal to the Supreme Court as the conviction involved a point of law of exceptional public importance. The issue surrounded the admissibility of the entirety of a non-incriminating statement made by applicant while in Garda custody if during the making of the statement the accused's constitutional right of reasonable access to a solicitor was deliberately and consciously breached. In addition submissions were made in relation to whether the trial judge applied the correct test in deciding whether to allow the prosecution case go to the jury. Originally in the statements given to the Gardaí the applicant had claimed that he had not been at the location when the offences had occurred. When forensic evidence contradicted the applicant's evidence, the applicant sought to give a different account and sought to exclude evidence contained in his statement made in Garda custody.

Held by the Supreme Court (Clarke J delivering judgment) in dismissing the appeal. To impose an exclusionary rule to statements made by an accused during lawful custody because the accused's custody later, albeit while the statement taking process was continuing, became unconstitutional would impose an excessive exclusionary rule not warranted by the need to discourage improper activity by those investigating crime. Unless there was a sufficient nexus between the two parts of the statement or interview process so as to taint the otherwise lawful portion, then there was no reason to exclude that part of the statement which was made while the accused was in lawful custody. The trial judge had correctly applied the test as outlined in R. v. Galbraith [1981] 73 Cr. App. R 124 in allowing the case to go the jury.

1. Introduction

2 1.1 On the 19 ^th March, 2006 a Russian national complained to An Garda Síochána of having been assaulted and raped. As a result of investigations carried out the applicant/appellant ("Mr. D") was charged on a number of counts and tried before the Central Criminal Court presided over by White J. In substance Mr. D was convicted of rape and assault. A count of threatening to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act, 1997 was withdrawn from the jury at the close of the prosecution case. One further count gave rise to a non guilty verdict of the jury but Mr. D was convicted on counts 1 and 4, being a count of rape contrary to s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape)(Amendment) Act, 1990 and one of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

3 1.2 Mr. D sought leave to appeal against his conviction and sentence from the Court of Criminal Appeal. That court refused such leave in respect of conviction for the reasons set out in a judgment delivered on the 25 ^th July, 2008 by Finnegan J. (DPP v. A.D. [2008] IECCA 101) The Court of Criminal Appeal did not, on that occasion, deal with the question of severity of sentence. That issue was considered on the 14 ^th October, 2008 when the Court of Criminal Appeal decided, in substance, to reduce the sentence imposed on Mr. D from 12 to 9 years. Thereafter, Mr. D successfully applied for a certificate under s.29 of the Courts of Justice Act, 1924 to the effect that the decision refusing him leave to appeal against conviction involves "a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court".

4 1.3 The point so certified by the Court of Criminal Appeal is as follows:

"Is the entirety of a non-incriminating statement made by an accused person while in the custody of An Garda Síochána inadmissible if during the making of the said statement the accused's constitutional right of reasonable access to a solicitor was deliberately and consciously breached?"

5 1.4 On the basis of that certificate Mr. D has appealed to this Court. In addition a further application was brought on behalf of Mr. D (by motion dated the 24 ^th January, 2012) which sought an order granting leave for argument to be heard and a determination made in relation to part of the decision of the Court of Criminal Appeal which went outside the scope of the point of law of exceptional public importance certified being the question of:-

"Whether the Court of Criminal Appeal erred in that part of its decision in which it determined that the learned trial judge applied the correct test in deciding whether to allow the prosecution case go to the jury".

6 1.5 In order to fully understand the precise issues with which this Court is concerned it seems to me to be appropriate to turn to a brief recital of the facts insofar as they are relevant to the limited issues which are for this Court to decide.

2. The Facts

2 2.1 When Mr. D was arrested in connection with these offences he was questioned by members of An Garda Síochána on two occasions. Both questioning sessions were video recorded and the interviews were contemporaneously written down in the form of questions and answers. It is of some minor relevance to record that Mr. D is a foreign national and required the assistance of an interpreter during the course of the relevant interviews. In the ordinary way when the interviews were completed the written record was read over to Mr. D (again with the assistance of an interpreter) and he was invited to make any alterations and then sign. Mr. D duly signed both accounts.

3 2.2 At the trial before White J it is important to record that a number of separate objections were made to the respective admissibility in evidence of statements made by Mr. D. The second interview was deemed inadmissible in its entirety by White J on the basis that the trial judge was satisfied that, by the time the interview in question took place, the situation had progressed to one where, in the words of the trial judge, it seemed to him "that the State were in possession of sufficient evidence to charge the accused man prior to the second interview" and that he was not "happy to permit the facts of the second interview to be adduced before this jury"

4 2.3 So far as the first interview is concerned the evidence at the trial indicated that Mr. D had requested the presence of a solicitor. The solicitor in question arrived as the first interview was coming towards an end. Indeed the interview records a member of An Garda Síochána indicating that the solicitor had arrived and asking Mr. D if he wished to see the solicitor concerned. Mr. D answered that he did wish to see the solicitor. However, the interview did not stop at that stage. What followed was the asking of one final question of Mr. D, the reading over, with translation, of the entirety of the first interview, an invitation to Mr. D to consider whether he wished to make any changes, Mr. D making one change, and Mr. D's signature. All of these matters occurred at a time prior to Mr. D being actually afforded access to his solicitor. That process took some time, perhaps contributed to by the need to translate, so it is all the more surprising that A.D. was not given access to the solicitor.

5 2.4 No explanation appears to have been tendered as to why immediate access to the solicitor in question was not afforded to Mr. D. In those circumstances it is hardly surprising that White J concluded that, from the time the solicitor in question arrived, and having regard to the fact that immediate access to the solicitor was not given despite requests, Mr. D was in unlawful custody as a result of a conscious and deliberate breach of his constitutional right of access to a solicitor. In that regard White J, in the course of a ruling delivered by him on the 23 ^rd January,...