DPP v Gillane

• Jurisdiction: Ireland
• Judge: LYNCH , J.,LYNCH, J.
• Judgment Date: 21 December 1998
• Neutral Citation: 1999 WJSC-CCA 1744,1999 WJSC-CCA 1728
• Docket Number: 146/97
• Court: Court of Criminal Appeal
• Date: 21 December 1998

1999 WJSC-CCA 1728

THE COURT OF CRIMINAL APPEAL

Lynch, J.

O'Higgins, J.

Quirke, J.

146/97

DPP v. GILLANE

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

v.

PATRICK GILLANE

Citations:

OFFENCES AGAINST THE PERSON ACT 1861 S4

ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE CH 19 PARA 123 (1998)

AG, PEOPLE V CASEY (NO 2) 1963 IR 33

AG, PEOPLE V O'REILLY 1990 2 IR 415

AG, PEOPLE V MCDERMOTT 1991 1 IR 359

CONSTITUTION ART 38.5

Abstract:

Criminal law - Leave to appeal - Conviction - Soliciting to murder - Identification evidence - Corroboration - Whether jury should have been directed to acquit - Whether conviction unsafe and unsatisfactory - Offences against the Person Act, 1861, (24 & 25 Vict c.100), section 4 - Bunreacht na hÉireann, 1937, Article 38.5.

The court was satisfied that the offence created by s.4 of the Offences against the Person Act, 1861, is established by proving that the accused person solicited any other person or persons to murder any other third person or persons. Regarding the reliability of evidence given by one of the witnesses, it was not grounds for withdrawing the withdrawing the case from the jury, where the jury was in a position to assess the witness' reliability or otherwise. All the proper warnings were given to the jury in relation to identification evidence and the trial judge had dealt with all the issues in a exemplary fashion. The Court of Criminal Appeal so held in dismissing the appeal.

1 JUDGMENT OF THE COURT DELIVERED THE 14th DAY OF December 1998BY LYNCH, J.

2 This is an application by Patrick Gillane for leave to appeal against his conviction by a jury of the offence described in the Statement of Offence in the indictment as "Soliciting to murder contrary to S.4 of the Offences against the Person Act, 1891" the particulars of the offence being stated in the indictment as "Patrick Gillane on a date unknown between the 1st day of January 1994 and the 31st day of January, 1994 in the city of Dublin solicited Christopher Bolger and Michael Doyle to murder PhilomenaGillane".

3 The verdict of guilty was returned by the jury unanimously after a six day trial which commenced on the afternoon of Monday 1st December, 1997 and concluded with the jury's verdict on Monday evening the 8th December, 1997.

THE FACTUAL BACKGROUND

4 The Applicant's wife Philomena Gillane disappeared in May, 1994. Her body was found on the 18th May, 1994. She had been murdered. Following this discovery the Applicant's photograph appeared in newspapers and also on RTE television news. A photograph of the Applicant in the Irish Independent was seen by a Mr. Christopher Bolger. A friend of Mr. Bolger, a Mr. MichaelDoyle, saw the Applicant on television news. These two men were crucial witnesses so far as the prosecution of the Applicant is concerned. They stated that they recognised the Applicant in this photograph and the television news respectively as the man who approached them in his motor car on a Sunday in the previous January that is to say January, 1994 and asked them if they would "kill a woman who worked in ahospital" according to the evidence of Mr. Bolger and "his wife" according to the evidence of Mr.Doyle.

5 Mr. Bolger and Mr. Doyle live in hostels. They could be said to be down and out. Mr. Bolger knew a Detective Garda Alan Bailey who did voluntary work at a Day Centre for homeless men at Bow Street, Dublin. Mr. Bolger decided to speak to Mr. Bailey and tell him about the incident in January. Thus began the Garda investigation which led to the prosecution and conviction of the Applicant for the offence of soliciting to murder already quoted above.

6 As I have already said and as indeed is apparent from the facts just recited, the prosecution case depended completely on the evidence of Mr. Bolger and Mr. Doyle and on the reliability and accuracy of their identification of the Applicant as the man who spoke to them in January, 1994. The Applicant declined, as was his right, to stand in an identification parade. The Applicant lives in County Galway and accordingly a deposition from Mr.Bolger was taken in Galway District Court. In the course of that process Mr. Bolger was asked if he could see identify in Court the man who spoke to him and Mr. Doyle in January, 1994. Mr. Bolger left the witness box and walked to the back of the Court and pointed to the Applicant. Although not having the same status as a proper identification parade this was not a useless dock identification. There was no dock in the Courtroom and the Applicant was seated in the back of the Courtroom and not in the custody of Gardai or Warders.

7 Mr. Bolger described the meeting with the man on the Sunday in January, 1994 in the James St./Bow Lane area of the city of Dublin. He said the car stopped and the driver asked for directions of Kilmainham. The driver drove off and returned in a few minutes. Cigarettes were purchased for Mr. Bolger and Mr. Doyle from a nearby shop and then they drove to the area of Basin Lane Flats. Mr. Bolger said in evidence that the man then asked him and Mr. Doyle would they kill a woman that worked in a hospital: he did not say his wife: and he would give them a substantial sum of money if they did it.

8 Mr. Bolger in a statement he made to the Gardai described the man who spoke to him and Mr. Doyle as having a black moustache at that time and as having hazel eyes or hazel in his eyes. The Applicant never had amoustacheand has blue eyes. Quite out of the blue and unexpected by Counsel on either side Mr. Bolger said in answer to Mr. Leahy cross-examining for the Applicant at questions 882 – 887 of transcript 2 (the 2nd December, 1997) as follows:-

882	Q.	"You are with the Guard am I am asking you did he say anything to you and I have understood you to tell me that you believed he did and I am simply asking you to say what did the Guard say to you at Basin Lane Flats?
	A.	You see I know I am right.
883	Q.	Well --
	A.	You see there is a microchip inserted, you know what I mean, that connected to me mouth, you know what I mean, at the MaterHospital.
884	Q.	You are indicating that there is microchip inserted into yourskull?
	A.	Yeah
885	Q.	Connected to your mouth and this was done at the MaterHospital?
	A.	Yeah, when I was twenty year.

886	Q.	When you were twenty years?
	A.	Yeah
887	Q.	Can I ask you to tell us what the Guards said to you at Basin Lane Flats last week?
	A.	Listen, excuse me. I know people can read mind, you know what I mean. I am tied into me microchip and it's tapped, you know what Imean".

9 Mr. Bolger later clarified that he was twenty-eight years old when he had an operation on his head in the Mater Hospital and was at the time of the trial forty-eight years old so that it was twenty years before then that he had the operation.

10 Mr. Doyle also identified the Applicant as the man who spoke to him and Mr. Bolger on the Sunday in January, 1994. Again there was no formal identification parade for the same reason. The identification was made in a Galway Garda Station with Mr. Doyle sitting in a corridor watching people coming and going and picking out the Applicant in duecourse.

11 Mr. Doyle described the car coming towards them and stopping and the driver asking for directions to kilmainham: the car drove away and after a couple of minutes returned: there was some incidental conversation: they got into the car which went to a shop: the driver bought cigarettes for him and Mr. Bolger: the driver drove to Corporation flats for a quiet place to talk: he asked them if they would do a job for him: he said he wanted them to kill somebody: they asked him who he wanted killed and he said his wife: Mr. Doyle asked him why did he want his wife killed and he said she was leaving him and he was going loseeverything.

12 Mr. Doyle did not describe the man who spoke to them in his statement to the Gardaí. He merely identified the man by reference to the photograph in the Irish Independent and still photographs taken from the video of the television news. There was no issue but that the photograph in the Irish Independent and the still photographs from the television news were images of the Applicant.

THE SUBMISSIONS

13 Counsel for the Applicant submitted:-

14 1. The sole count on the indictment charged the Applicant that on a date unknown between the 1st January and the 31st January, 1994 in thecityof Dublin he solicited Christopher Bolger and Michael Doyle to murder Philomena Gillane. In those circumstances the prosecution had taken on the onus of proving (inter alia) that the Applicant had solicited both Mr. Bolger and Mr. Doyle to murder Philomena Gillane. Mr. Bolger did not give any evidence of understanding what if any relationship the intended victim might be to the Applicant. He was therefore not solicited to do the act charged namely murder Philomena Gillane: consequently there was no evidence of a joint solicitation and both Mr. Bolger and Mr. Doyle were entitled to a direction to the jury to acquit.

15 2. The conviction of the Applicant must be regarded as unsafe and unsatisfactory because it is based wholly or partly on the evidence of Mr. Bolger who gave evidence:-

16 (a) that he had a microchip in his head connected to his mouth,

17 (b) that people could read his mind,

18 (c) gave a description of the person involved in the incident in January, 1994 when he was first interviewed by members of the GardaSiochána which positively excluded the Applicant in that he said the Applicant had a black moustache and hazel eyes or hazel in hiseyes.

19 a (d) the evidence of Detective Sergeant Breslin was that Mr. Bolger's eyesight was not good and Mr. Bolger himself said that he was colour blind.

20 3. The purported identifications of the Applicant by Mr. Bolger...