DPP v Diver

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IESC 57
• Docket Number: [S.C. No. 161 of 2002],161/02
• Court: Supreme Court
• Date: 29 July 2005

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

v.

JOHN DIVER

Appellant

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

McCracken J.

161/02

THE SUPREME COURT

Abstract:

Custody regulations - Admissibility of evidence - Point of law of exceptinal public importance - Courts of Justice Act, 1924 - Whether the fairness of the trial of the appellant would be prejudiced by the admission of statements made by him in respect of which the custody regulations were not followed.

Facts: The appellant was refused leave to appeal his conviction of murder by the Court of Criminal Appeal (CCA). However the CCA certified that its decision involved a point of law of exceptional public importance and granted the appellant a certificate allowing him to appeal pursuant to s. 29 of the Act of 1924.The appellant had denied any involvment in the murder and there was no forensic evidence linking him to the crime. Both the learned trial judge and the CCA found that there had been multiple breaches of the regulations for the treatment of persons in custody in Garda Siochana stations and in particular a compelte failure to record any part of an entire interview with the appellant, during which, it was conceded, he consistently denied any involvement in the murder. The certified question essentially asked whether having regard to the nature of the breaches of the regulations the trial judge correctly exercised his discretion in ruling in favour of the admissibility of statements made by the appellant during his period of detention.

Held by the Supreme Court ( Murray C.J., Denham, Hardiman, Fennelly, McCracken JJ) in allowing the appeal, quashing the conviction and ordering a retrial:

1. That the breaches of the regulations in this case could not be regarded as trivial or inconsequential. They were grave, obvious and deliberate.

2. That having regard to the narrowness of the issues in this case it could not be determined with certainty that the same result would have followed had the impugned evidence not been available for the jury's consideration.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Hardiman delivered the 29th day of July, 2005.

2 This is a difficult and most unusual case, which comes before us as an appeal pursuant to s.29 of the Courts of Justice Act, 1924.

3 The defendant was convicted of the murder of his wife, Geraldine Diver. She died on the 2nd December, 1996, in her car which was parked outside a builder's yard in West Dublin. Because of the near ubiquity of video cameras at business premises, the movements of the car can be traced with great precision. This provides the unchallenged temporal framework of the case as follows.

4 At 9.26pm the deceased lady left the Coombe Hospital, where she worked, in her Renault Clio car. The hospital is nine minutes drive from the builder's yard and also nine minutes drive from her home where, on the evening in question, the defendant was looking after the two children of the marriage. The yard is some three minutes drive and eleven minutes walk from the house where the defendant and his wife lived. At 9.40pm on the same evening the video camera at the builder's yard showed the deceased lady's car arriving at the entrance to the yard. At 9.55pm all the lights in the car went off. At 10.01pm a man, whom it was not possible to identify on the film, got out of the car by the rear door on the driver's side. The body was later found in the car. She had been strangled.

5 The prosecution claimed that the defendant had ample motive for murdering his wife. He was somewhat older than her and the marriage had been in difficulty for some time. The wife had been conducting a very active affair with a much younger man whom she had pursued and with whom she apparently intended to live. She hoped that she would have a child by him.

6 The parties had allegedly agreed to separate, originally on the terms that the wife would leave the family home for the applicant, and that the children would choose who to stay with. She had apparently told her 13 year old daughter that she could stay with her father. A sum of £20,000 severance money which the defendant had recently secured (he actually banked it on the morning of the wife's death) was to be shared between them and she would keep the car. However she changed her mind and instructed her solicitor to draft a settlement varying these terms significantly. According to this draft, the house was to be sold and the proceeds and the

7 redundancy money divided. The deceased was to have custody of the children. There was some evidence that the applicant knew of these changed terms. All in all, the prosecution said, the deceased wife's conduct had humiliated the defendant and threatened his relationship with his children and his financial stability.

8 The case was an unusual one in several ways. The defence was that the defendant was not involved in any way in the death of his wife: this is unusual because the great majority of murder defences do not deny physical involvement but claim that this involvement did not amount to a crime, or that it is manslaughter only. Secondly, there was only a brief "window" during which the crime must have been committed, between 9.40pm and 10.01pm on the night of the 2nd December, 1996. Thirdly, the applicant was minding his two young children on the night in question, a girl of thirteen and a boy of nine. The accounts given by these children of their father's movements after nine o'clock on the evening in question are of considerable importance, as will be seen. They said he had been in the house all evening except when he left to buy food at a nearby take away. He returned with this, and realised he had forgotten noodles. He set out to get them but returned without them because, he said, it had started to rain. Both on deposition in the District Court (where they were called by the prosecution) and at the trial (where they were called by the defence) their timings were difficult to reconcile with the defendant having time to get to the builder's yard and back within the constraints of the video timings especially since it would appear that he had to get the food as well. The girl's account, in particular, seemed quite precise as she correlated his movements in and out of the house with a named television programme which she was watching. But the children were cross-examined along the lines that they had made statements to the gardaí giving times which were less inconsistent with the video timings. There was no evidence that the defendant had any vehicle or bicycle available to him on the relevant night.

9 Fourthly, and crucially, two teenage boys who lived near the defendant gave evidence that they saw the deceased on the relevant evening, driving her car at a T-junction at the end of the road where she lived. One of these boys saw a figure in the back of her car: the other identified the person in the back of the car as the defendant. But the boy put the time of this sighting at 9.25pm or a minute or two earlier: as noted above, the deceased had not yet left the hospital car park at that time.

10 Fifthly, a telephonist in the hospital who knew the defendant well for twenty years identified him by voice as a person who rang the hospital at about 7pm on the 2nd December, 1996 looking for the deceased.

11 There was no forensic evidence implicating the husband and some forensic support for the proposition that an unknown person had been in the car. But the identity of this person and the date of his or her being in the car could not be established.

12 Finally, significant issues arose as to certain question and answer interviews conducted by gardaí with the defendant.

13 The course of proceedings.

14 After a lengthy trial the defendant was convicted of murder on the 17th November,

15 2000. He received a mandatory life sentence. His application for leave to appeal was dismissed by the Court of Criminal Appeal on the 20th March, 2002. On the 10th April, 2002, the Court of Criminal Appeal certified that its decision involved a point of law of exceptional public importance and granted him a certificate allowing him to appeal to this Court, pursuant to s.29 of the Courts of Justice Act, 1924. The certified question was as follows:

16 "Whether having regard to the nature of the breaches of the custody regulations in this case, the learned trial judge correctly exercised his discretion in ruling in favour of admissibility of each of the statements made by the applicant while in detention under s.4 of the Criminal Justice Act, 1984."

17 The Garda interviews.

18 The defendant was arrested at home by gardaí at about 8.45am on the 8th December, 1996. This was a Sunday. He was subsequently detained at a garda station pursuant to s.4 of the Criminal Justice Act, 1984. The interviews took place at Lucan Garda Station. They were not audio visually recorded and, as will transpire, the recording in writing made by various gardaí was grossly deficient. This was deplored, both by the learned trial judge (Smith J.) and by the Court of Criminal Appeal. Smith J. found multiple breaches of the regulations for the treatment of persons in custody and in particular found a complete failure to record any part of an entire interview during which, it was conceded, the defendant had consistently denied involvement in the crime. This was characterised by him as "unacceptable and unsatisfactory". The judgment of the Court of Criminal Appeal was delivered by Geoghegan J. who said:

19 "There were a large number of breaches of the custody regulations... this Court deplores the breaches of those regulations and views with concern the number of the breaches in this case. The Court is quite satisfied that they are not material in the sense that they could lead to the ruling out of evidence or, perhaps, to put it...