DPP v Dekker

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] IECA 173
• Court: Court of Appeal (Ireland)
• Docket Number: [123/17]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Richard Dekker

Appellant

[2022] IECA 173

The President

Edwards J.

Ní Raifeartaigh J.

[123/17]

THE COURT OF APPEAL

Conviction – Murder – Admission of evidence – Appellant seeking to appeal against conviction – Whether the trial judge was in error in admitting evidence

Facts: The appellant, Mr Dekker, on 7th March 2017, following a trial which started on 22nd February 2017, was convicted of the murder of Mr McAnaspie on 26th February 2010 at Tolka Valley Park, Blanchardstown, Dublin. He appealed to the Court of Appeal against the conviction. He contended that he could not have been convicted if what he had to say in the final interview had not been admitted in evidence. His case was that the trial court erred in admitting into evidence what was said during that interview. It was accepted that, at an earlier stage of his detention, he was given an opportunity to consult with his solicitor. However, it was said that the crucial final interview proceeded despite requests by him to consult with his solicitor, requests that were presented as soon as the question of the drawing of inferences pursuant to statute was raised. It was said that so far as the final interview is concerned, he was not given a reasonable opportunity to consult with his solicitor and that the failure to provide access in the context of that interview meant that he did not have an effective right to legal advice while in detention, and that as a result, his rights pursuant to both the Constitution and the European Convention on Human Rights were breached. He said that the manner in which the Gardaí sought to invoke the statutory provisions for the drawing of inferences from silence was manifestly defective.

Held by the Court that it agreed with the trial judge that the question was as to whether the appellant could have been in any doubt as to his rights to say nothing and whether or not, in fact, with the benefit of the knowledge of those rights, he freely decided to speak. The Court agreed with the trial judge that there was no indication whatsoever that the appellant’s decision to speak in the manner that he did was prompted by confusion or the Gardai’s invocation of the inference provisions, and the Court had no doubt that what he said was said on a voluntary basis. It seemed clear to the Court that the change of heart was prompted by him becoming aware of the fact that his co-suspect had given a version which effectively placed the entire blame on him. The Court held that the appellant’s decision was prompted by a desire to put his version out there. In assessing and seeking to determine the reality of what occurred, it seemed to the Court highly relevant that what he had to say did not amount to a full and unqualified admission. The Court held that while what he said would subsequently be relied upon by the prosecution, and indeed would ultimately see him convicted of murder, from his perspective at the time, he was coming clean about what had occurred and placing the blame fairly and squarely on the co-suspect.

The Court had not been persuaded that the trial judge was in error in admitting the evidence. The Court rejected the grounds of appeal related to its admission.

Appeal dismissed.

JUDGMENT of the Court delivered on the 27 ^th day of July 2022 by Birmingham P.

1 . On 7 ^th March 2017, following a trial which started on 22 ^nd February 2017, the appellant was convicted of the murder of Daniel McAnaspie on 26 ^th February 2010 at Tolka Valley Park, Blanchardstown, Dublin. He has now appealed against the conviction.

Background

2 . The trial in question was a somewhat unusual one in that the appellant had previously stood trial in 2013, charged with the murder of Mr. McAnaspie, but was acquitted by direction of the trial judge. However, the prosecution appealed successfully to the Supreme Court, the acquittal was quashed, and a retrial was ordered ( DPP v. Dekker [2015] IESC 107).

3 . The circumstances surrounding the murder of Mr. McAnaspie are not seriously in dispute. The deceased was last seen alive at approximately 4.00am on 26 ^th February 2010 in the Whitestown Avenue area of Blanchardstown. At that time, he was in the company of the appellant and another person, one Trevor Noone. On 13 ^th May 2013, Mr. McAnaspie's remains were found in the Rathfeigh area of County Meath. It was clear that he had suffered death by stabbing. A murder investigation was launched and the appellant and Mr. Noone were identified as suspects. The case mounted against the appellant was that Mr. Noone had killed the deceased, stabbing him with a garden shears, and that the appellant was guilty of murder in circumstances where he had been a party to the luring of the deceased to a secluded location for the purpose of having him assaulted by Mr. Noone. It was the prosecution case that the appellant believed that Mr. Noone intended to assault the deceased by hitting him, while knowing that Mr. Noone was a violent person, prone to stabbing people, and that he had a garden shears with him.

4 . On 24 ^th May 2010, the appellant was arrested at his home. He was brought to Cabra Garda Station where he was detained. During his detention, he was interviewed on seven occasions. Throughout the earlier interviews, the appellant – for the most part – exercised his right to silence, occasionally offering denials. The prosecution case at trial was heavily dependent on what the accused had to say during the final interview, which commenced on 25 ^th May at 5.50am and ended at 7.23am. At 7.56am, the accused was released from detention under s. 4 of the Criminal Justice Act 1984. It should be noted that his initial detention had been extended for a further period of six hours at 2.00pm on the day of his arrest, 24 ^th May 2010, and extended further at 7.55pm. The fact that the appellant's detention was extended could not have come as a surprise to anyone, particularly his solicitor. In any event, the solicitor for the appellant was in contact with the Garda station on a number of occasions after the detention had been further extended. The solicitor had a conversation with the then detainee between 11.25pm and 11.37pm on 24 ^th May 2020 by telephone.

5 . It is also clear that the appellant's solicitor was very alive to the possibility that the inference provisions would be invoked. That much is clear from what the detainee had to say when the provisions were actually invoked: it cannot be in controversy that the issue had been the subject of discussion between solicitor and client, and advices had been given, albeit on a contingent basis. What is also clear is that the normal caution was administered, not once, but twice, at the start of the interview. Thereafter, it must be said that the explanations given in relation to the invocation of the inference provisions and the circumstances in which inferences could be drawn were, by any standards, less than satisfactory. Indeed, we found it telling that the State accepted that this was not a case where the prosecution could ever have hoped to have seen inferences drawn had Mr. Dekker chosen to remain silent. In our view, it is of significance that even after the inference legislation was invoked, the accused maintained his previous position of refusing to comment. However, as had been the position in earlier interviews, that approach was not an absolute one. When it was put to him that after an interview ended around lunchtime on 24 ^th May, he had engaged in conversation which involved making admissions of a general inculpatory nature while denying primary responsibility, he denied in emphatic terms that any such conversation had happened, asking, rhetorically, “[h]ave you got it video evidence, yeah?”

6 . There is an issue as to whether the appellant was afforded a reasonable opportunity to consult with his solicitor prior to the commencement of the crucial final interview. At the start of the final interview, the appellant was told by the interviewers that the prosecution would be seeking at trial to rely on inferences that could be drawn from any failure on his part to respond to questions that were about to be put to him pursuant to s. 19A of the Criminal Justice Act 1984, as amended. It is not in dispute that at earlier stages of the detention, there was access to a solicitor which would be regarded as reasonable access, but it is said that he was not offered a reasonable opportunity to consult with his solicitor in advance of or during the critical final interview. Before looking at that final interview, and indeed at events that occurred at other stages during the detention which are relevant to what transpired there, it is appropriate to say a little of what occurred at the immediately preceding interview.

7 . This interview, conducted by Gardaí Paul Ryan and Maureen Munnelly, commenced at 2.04am on 25 ^th May (the appellant had declined the suspension of questioning). During the interview, the following exchange took place between Gardaí and the appellant, as gleaned from the trial transcript:

“Q. Would you kill someone for Trevor Noone?

A. No, I wouldn't.

Q. Would you kill for anybody?

A. No, I wouldn't, I wouldn't kill anybody.

Q. We need you to tell us what happened, this is on your shoulders, Richie.

A. What's that statement you have there?”

It is accepted that Gardaí had with them a memo of interview that had been taken from Mr. Noone a short time earlier. Gardaí responded to the appellant by saying, “[i]t will be shown to you later” and he replied, “[w]hy can't I hear it now?”

8 . So far as the final interview is concerned, it should be noted that the prosecution did not at any stage seek to rely on the appellant's silence, but rather, on responses provided by him during that interview. The distinction between relying on silence and relying on responses is...