DPP v Gormley

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Finnegan J.
• Judgment Date: 27 July 2009
• Neutral Citation: [2009] IECCA 86
• Date: 27 July 2009

[2009] IECCA 86

COURT OF CRIMINAL APPEAL

Finnegan J.

Hanna J.

Charleton J.

RECORD NO. 20/08

DPP v Gormley

[2009] IECCA 86

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

RAYMOND GORMLEY

APPLICANT

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

CRIMINAL LAW ACT 1997 S4(3)

DPP v GAFFNEY 1987 IR 173 1986 ILRM 657

CONSTITUTION ART 40.5

BURTON v SCOTT 1847 9 LTOS 313

MOXON v SAVAGE 1860 2 F & F 182

DPP, PEOPLE v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277

DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841

Abstract:

Criminal law - Appeal against conviction - Lawfulness of arrest and detention - Admission of statements - Access to solicitor - Whether the learned trial judge erred in admitting into evidence statements allegedly made by the applicant - Whether those statements ought to have been excluded on the basis of an alleged unlawful arrest and alleged breach of the right of access to a solicitor.

Facts: The applicant sought leave to appeal against a conviction of attempted section 4 rape on the grounds that the learned trial judge erred in fact and in law in admitting into evidence statements allegedly made by the applicant to the prosecuting Gardai. The admissibility of the statements was challenged on the basis that the entry into the applicant’s dwelling was unlawful and therefore his arrest and consequent interview was unlawful. Secondly, the applicant submitted that the interviews were obtained in breach of his constitutional right of access to his solicitor and ought to have been excluded. Evidence was given by the Gardai that having entered the applicant’s apartment without invitation, the applicant stated to Sergeant McGonigle “Come on in, Seamus”. The applicant submitted that the entry to his apartment was a civil trespass. Following his arrest, the applicant requested a solicitor at 2.15p.m. The Gardai gave evidence of efforts made to contact the relevant solicitor and contact was made at 3.05pm, whereupon the solicitor stated he would attend the station shortly after 4pm. The first interview of the applicant commenced at 3.10pm and terminated at 4.46pm. The applicant’s solicitor arrived at the station at 4.48pm.

Held by the Court of Criminal Appeal ( Finnegan J; Hanna and Charleton JJ) in refusing leave to appeal; That notwithstanding the fact the Gardai entered the applicant’s premises as trespassers, they became invitees upon the applicant issuing the invitation “come on in, Seamus.” The statements were taken at the time the Gardai were lawfully on the premises and consequently neither the statements nor the arrest was unlawful. The learned trial judge was entitled on the evidence before him to reach the conclusion that the attempts made by the Gardai to contact the solicitor nominated by the applicant were bona fide and reasonable and further was entitled to exercise his discretion to admit the statements made by the applicant during the period of detention prior to the arrival of the solicitor.

L.O'S

1 Judgment of the Court delivered on the 27th day of July 2009 by Finnegan J.

2 The applicant was charged with the following offences:-

3 1. Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.

4 2. Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

5 On the 7 ^th November 2007 he was found not guilty on count 1 and on count 2 not guilty of rape but guilty of attempted section 4 rape.

6 On the 24 ^th April 2005 the complainant was alone in her house. She knew the applicant having met him socially on a number of occasions. They became quite friendly. In the early hours of that morning the complainant awoke to find the applicant beside her in her bed. He had gained access by climbing a drain pipe and entering through an upper floor window. The complainant's evidence was that the offences with which the applicant was charged then occurred. Shortly thereafter the applicant left the premises through the front door.

7 Later that morning, a Sunday, the complainant contacted the Garda Síochana. She identified the applicant. Immediately the Gardaí ascertained the applicant's address which was in an apartment complex. On arriving at the apartment complex the Gardaí met with the owner of the same who admitted them to the apartment block. They went to the applicant's apartment. The door to the same was open. They called out and entered and climbed an internal stairway. They found the applicant reading a newspaper and he invited them to come in. The applicant was cautioned and a number of questions were put to him. He identified the clothing he had been wearing that morning. In answer to questions he admitted climbing the drain pipe at the back of the complainant's house and entering through an upstairs window. The applicant was then arrested and taken to the Garda Station arriving at 2 p.m. He was processed. Two interviews took place:-

8 1. Interview commencing 3.10 p.m. and terminating 4.46 p.m.

9 2. Interview commencing 6.47 p.m. and terminating 8.33 p.m.

10 In the course of processing at the Garda Station the applicant was informed of his entitlement to consult a solicitor. At 2.15 p.m. the applicant requested as his solicitor either Mr Cathal Quinn or Mr Kieran Dillon. No mobile phone number for either of these solicitors was available and they were not in their respective offices. A Garda car was dispatched to find Mr Dillon. It first called to his parents home where there was no response. Gardaí then called to Mr Dillon's home where they spoke to his wife. She agreed to contact Mr Dillon. These events occurred between 2.15 p.m. and 2.45 p.m. At 3.05 Mr Dillon telephoned the station and said that he would call to the station shortly after 4 p.m. At 4.48 p.m. the applicant's solicitor arrived at the station and he met with the applicant at 5 p.m. The solicitor remained with the applicant until 5.45 p.m.

Grounds of Appeal

11 The Notice of Appeal contained a single ground as follows:-

"The learned trial judge erred in fact and in law in admitting into evidence the statements allegedly made by the accused to the prosecuting Guards."

12 In submissions the admissibility of statements was challenged on two grounds:-

13 1. The entry into the applicant's dwelling was unlawful and therefore his arrest was unlawful and interviews consequent upon the entry and arrest should have been excluded, and

14 2. The interviews were obtained in breach of the applicant's constitutional right of access to his solicitor and ought to be excluded.

15 It is proposed to deal with each of these grounds in turn.

1. Entry into the Apartment

16 The applicant did not give evidence. Sergeant McGonigle gave evidence. At about 1.30 p.m. he went to the Quiet Moment Apartments with Sergeant Gillespie and Garda Flatley. The bell/intercom for Flat No. 5 at the common entrance to the complex was not working. As they were standing at the entrance to the apartment complex the owner of the complex arrived and admitted them. They went to the entrance door to the applicant's apartment. The door was open. He pushed it open and walked in and shouted "Hallo" but received no reply. There was a workman inside. He climbed the internal stairway, put his head around the door and saw the applicant sitting reading a newspaper. He asked:

"Raymond, do you mind if I come in and speak to you for a few minutes?"

17 The applicant replied:-

18 "Come on in, Séamus."

19 He proceeded to ask the applicant a number of questions and put the complainant's allegations to him. The applicant was co-operative and answered the questions which he was asked. Sergeant McGonigle arrested the applicant under section 4(3) of the Criminal Law Act 1997.

20 Sergeant McGonigle was cross-examined. His statement was put to him. In the statement he said:-

"I went upstairs along with Sergeant Gillespie and Garda Flatley to the door of apartment no. 5 which was open. I knocked on the door and as there was no reply we went up the internal stair. At the top and I observed Raymond Gormley sitting down reading a newspaper."

21 He accepted that in his statement he did not mention calling out. However his clear recollection was that he had in fact called out.

22 Sergeant Gillespie gave evidence. When the Gardaí got to the apartment door it was ajar. When they entered Sergeant McGonigle called out. The applicant was sitting in the living room area of the apartment and said:-

23 "Come on in, Séamus."

24 In cross-examination he said that his recollection was that Sergeant McGonigle knocked at the door and called out at the same time.

25 Garda Flaherty gave evidence that when the Gardaí got to the door of the apartment the door was open. They entered and went up the internal stairs. The applicant invited them in. In cross-examination Garda Flatley said that Sergeant McGonigle did...