DPP v Egan

 
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1989 WJSC-CCA 1250

COURT OF CRIMINAL APPEAL

CHIEF JUSTICE

COSTELLO J.

JOHNSON J.

54/88
DPP v. EGAN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
MICHAEL EGAN

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

PEOPLE V MADDEN 1977 IR 336, 111 ILTR 117

LARCENY ACT 1916 S35

REG V BANBRIDGE 1960 1 QB 129

GAMBLE'S CASE

REG V MAXWELL 1978 1 WLR 1363

LARCENY ACT 1916 S14

LARCENY ACT 1916 S23

LARCENY ACT 1916 S23(a)

Synopsis:

EVIDENCE

Admissibility

Statement - Voluntariness - Suspect - Incrimination - Suspect questioned about two offences - Suspect's wife revealing, in his presence, his involvement in one offence - Conviction of suspect - ~See~ Criminal Law, accessory - (54/88 - C.C.A. - 27/7/89)

|The People v. Egan|

CRIMINAL LAW

Accessory

Knowledge - Extent - Robbery - Foreknowledge - Accessory before the fact - Knowledge of general nature of crime intended - Statement of accused - Admissibility - Held that the trial judge had been justified in holding that the applicant's statement had been made voluntarily - Held, in affirming the conviction, that the prosecution had proved that the applicant had knowledge that a crime was to be committed, that the crime involved the theft of goods, and that the applicant (with that knowledge) had assisted the crime actually committed by agreeing to provide a place where the goods could be hidden after the theft: ~The People v. Madden~ [1977] I.R. 336 and ~R. v. Maxwell~ [1978] 1 W.L.R. 1363 considered - Held that the applicant had been properly convicted as an accessory before the fact - Larceny Act, 1916, s. 35 - (54/88 - C.C.A. - 27/7/89) - 3 Frewen 301

|The People v. Egan|

1

Judgment of the Court delivered the 27th day of July 1989 by Costello J

2

On the 27th of July 1983 in a very successful armed robbery there was stolen from premises in Harold's Cross, Dublin a large quantity of jewellery valued at over £1.3 millon. On the 14th of February 1985 Michael Egan, the Applicant before this Court, was arrested and detained under Section 30 of the Offences Against the State Act 1939in connection with the robbery. On the following day he made a written statement whilst in custody. He was then charged with robbery and receiving stolen goods. The only evidence implicating him in the crimes with which he was charged was his written statement. In the course of that statement the Applicant said

3

"I am self employed and supply and fit aluminium windows for a living. I have a large workshop at the back of the house where I make up the windows. I remember Sunday evening the 24th of July 1983. I received a “phone call at my home from a male caller requesting permission from me to leave a van in my workshop the following morning. He said he was a friend of an acquaintanace of mine. I now know the name of this man who was on the “phone on that occasion, but I don't want to say it. He told me there was a small stroke coming off and that he would want me to be at my garage door at the back lane at 9 o'clock on Wednesday morning the 27th of July at 1983, to open up the door to allow the van to come in. The Wednesday morning after leaving my children to school I came back to the house. I went into the garage at 8.50 a.m. I opened the door a bit and at 9 o'clock on the dot the van came up the lane and I opened the door full. It was a blue Hiace van. There was at least four or five masked men in the van. The van was reversed into the garage and inside they all got out. As far as I know they all had what looked like .38 revolvers in their hands. When I saw this I got frightened and realized that this stroke was an armed robbery, which if I had known I would not wish to have any part in it".

4

The statement then went on to describe how one member of the gang had pointed a revolver at the Applicant's head and warned him to keep his mouth shut; and it further described what subsequently occurred. The Applicant stated that he had learned on the 1.30 news that there had been a big jewellery robbery at O'Connors Jewellery Harold's Cross in the morning and that he "figured" immediately that the gang in his garage was responsible for the robbery. He stated that he thought of ringing the police but was too scared to do so. Later he went into the workshop. He saw three men there and he saw a large amount of jewellery, rings, necklaces and bracelets and gold welding rods. He estimated there were 14 sacks of jewellery. He described how later the men who were in his workshop left and how he found a bag in the workshop which had a large amount of gold rings in it which he kept and disposed of subsequently in the way described in the statement.

5

The jury found the Applicant guilty of robbery and not guilty of receiving stolen goods (having been directed by the trial Judge to treat the two counts as alternatives). He was then sentenced to seven years” imprisonment. The application for leave to appeal is against both the conviction and sentence.

6

The admissibility of the Applicant's statement was hotly contested at his trial. Having conducted a trial within the trial the learned trial Judge held that the statement was admissible. The first point argued on this application was that this decision was wrong. For reasons to be given in a moment, this Court rejects this ground of appeal. There were, however, two other grounds advanced. Secondly, it was said that although the Applicant's statement clearly established that he was guilty of the crime of receiving stolen goods he was not convicted of this crime; that the charge against him of the crime of robbery was based on an allegation that he had been an accessory before the fact; that the evidence did not establish beyond a reasonable doubt that the Applicant knew that the crime of robbery was to be committed; that accordingly his conviction was wrong. Thirdly, it was submitted that the statement (assuming its admissibility) only established that the accused was an accessory after the fact of robbery and that as the maximum sentence which could be imposed on an accessory after the fact is two years the sentence in this case should be quashed.

7

Dealing, firstly, with the admissibility of the Applicant's statement the Court finds as follows.

8

At the trial within the trial it was established that the accused was arrested under Section 30 of the Offences Against the State Act, 1939at 2.10 p.m. in the afternoon of 13th February, 1987 and brought to Sundrive Garda Station. He was interviewed at different times throughout that day and the next day and was properly cautioned on each occasion. At his request he saw his solicitor at 8.15 p.m. on the evening of 13th February and, again at his request, was examined by a doctor at about 8.45 p.m. He asked to see his wife and she was brought into the interview room at 11.10 p.m. She was asked to repeat in his presence what she had already said and according to the garda evidence (which was not challenged) she said "Mike, I have told them you're involved, in relation to O'Connors jewellery robbery. I have told them you're involved, about the van with the stolen jewellery in the garage and about the jewellery you brought into our house. I've told them everything. I'm sick of all this and the worry it has caused me." The accused then denied completely what his wife had said. The interview lasted about five minutes. The accused shortly after this went to bed. The next day, the 14th February he was again interviewed at about 11 a.m. He asked to see his solicitor and this request was granted and an interview took place with his solicitor at 2 p.m. At about 7 p.m. he requested to see his son, Alan, and he saw him alone for a few minutes sometime after 7.45 p.m. At 8.20 p.m. he then said that he would make a written statement. This took about two hours to complete and was made after the administration of a proper caution. The next day at about midday he said that he wanted to add something to it and this was done, again after caution.

9

At the trial within the trial the accused gave evidence of having been assaulted by the gardai whilst in custody, of verbal abuse, threatening behaviour and improper inducements. The learned trial judge having heard all the evidence concluded that he was unable to accept the accused's testimony and that the statement made in writing by the accused was admissible.

10

When the trial within a trial concluded evidence to the jury was given to the same effect by both the garda witnesses and the accused and the trial judge properly charged the jury on the law relating to the admissibility of the accused's statement. The jury could only have found the accused guilty if they had disbelieved his evidence.

11

It was urged on the Applicant's behalf in this Court that the learned trial judge erred in concluding that the Applicant's statement had been a voluntary one because by the evening of 14th February the Applicant's will had crumbled by the combination of three factors (a) his wife's visit, (b) his son's visit and (c) an allegation made by the gardai to him whilst in custody that he had been guilty of incest. As to the third factor, there was a conflict of evidence (which, of course, it was for the trial judge to resolve) as to what was said to the accused. The garda evidence was to the effect that no allegation was made against him but that he was asked if there was any truth in what had been brought to the notice of the interviewing guard which he had been asked to investigate some weeks previously, and that this...

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