DPP v Howard

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 20 July 2016
• Neutral Citation: [2016] IECA 219
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2012/194
• Date: 20 July 2016

Birmingham J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

GARY HOWARD

Appellant

[2016] IECA 219

Edwards J.

Record No. 2012/194

THE COURT OF APPEAL

Conviction – Murder – Unlawful arrest – Appellant seeking to appeal against conviction – Whether appellant?s arrest was unlawful

Facts: The appellant, Mr Howard, was arrested at 9:25 pm on 10th January, 2010, following a forcible entry into the premises at his home in Finglas, where he was present with his partner and their young child. Immediately after the arrest, a search warrant which the Gardaí had earlier obtained was shown to the appellant?s partner, and the house was then searched on foot of that warrant. The validity of the search warrant was not challenged by the appellant. The appellant was brought to Kevin Street garda station, where his detention was authorised by one Sergeant Burke pursuant to s. 50 of the Criminal Justice Act 2007 at 10:29 pm. Sergeant Burke said he was satisfied that the appellant?s detention was necessary for the full and proper investigation of the offences with which he was arrested, namely, the murders of Mr Mooney and Mr Molyneaux who were both killed by gunshot wounds on 10th January, 2010, at 4G Pearse House, Dublin 2. Whilst in custody, the appellant was interviewed on a number of occasions by the investigating gardaí, in the course of which admissions were made in respect of the double murder. After an initial period of detention of six hours in Kevin Street garda station, the appellant?s detention was extended by authorisation of Detective Superintendent O?Gara. The appellant was convicted of two counts of murder in the Central Criminal Court on 25th May, 2012, following a twenty six day trial. The appellant appealed to the Court of Appeal against that conviction. The appellant submitted that the warrant used to secure entry into the premises was the only authority invoked by anybody to explain their presence there and was, in fact, the authority through which and by which an arrest was secured. The appellant submitted that this ultimately led to the conclusion, as in DPP v Laide and Ryan [2005] 1 IR 209, that the arrest was unlawful. The appellant submitted that the trial judge erred in fact and in law in determining that the interviews with the appellant whilst in garda custody were admissible in evidence in the trial and in holding that the said interviews were not the result of inducements and/or threats or oppression and/or were not a breach of the appellant?s constitutional rights and/or were not otherwise inadmissible in law as being unsafe and unreliable and contrary to fundamental fairness of procedures. It was contended by the appellant that this authorisation of the extension of detention by Detective Superintendent O?Gara was not valid because he was not independent of the investigation into the double murder. The appellant complained that the trial judge misdirected the jury in that he failed to put the case for the appellant fairly before them and, further, that he failed to do so despite being requisitioned to that effect on behalf of the appellant.

Held by Edwards J that the gardaí had good reason to be concerned about their own safety, the safety of the public and indeed the appellant?s safety, having regard to the fact that a short time prior to their arrival at the premises it was their belief that the appellant had murdered two men in what appeared to be quite brutal circumstances; an unannounced and forcible entry into the premises followed by the immediate arrest of the appellant was of the utmost importance. Edwards J held that there was no requirement in the circumstances for the gardaí to delay the arrest of the appellant until after the production of the search warrant. Edwards J held that it could not be said that the appellant?s failure to contact his solicitor on a single occasion amounted to a breach of his constitutional rights such as would imperil the admissibility of the statement made by him in the course of the afternoon of 13th January, 2010; the appellant had had numerous opportunities to engage with his solicitor and that he had done so quite extensively. The Court was satisfied that the manner of questioning was not oppressive or unfair. Edwards J held that it could not be contended on any credible basis that there was anything remotely abusive of the appellant?s rights, and in particular his right to liberty, in Detective Superintendent O?Gara?s decision to authorise his continued detention beyond 6:00 a.m. on the 11th of January, 2010. The Court was satisfied that the trial judge dealt adequately with the requisition made of him and that the defence case was properly put before the jury.

Edwards J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered by Mr. Justice Edwards on 20th day of July 2016

1 The appellant was convicted of two counts of murder in the Central Criminal Court on 25th May, 2012, following a twenty six day trial.

2 A number of grounds of appeal are made by the appellant in relation to his conviction. For convenience, these grounds of appeal will be addressed in four separate sections in the course of this judgment. These sections will address the following:-

(i) The grounds of appeal relating to the appellant's arrest.

(ii) The grounds of appeal relating to the admissibility of interviews of the appellant whilst in garda custody (including the alleged breach of the appellant's constitutional rights in relation to his request to see a solicitor).

(iii) The ground of appeal relating to the authorisation of the extension of the appellant's detention in Kevin Street garda station.

(iv) The ground of appeal relating to the learned trial judge's charge to the jury.

Background facts

3 Mr. Paddy Mooney and Mr. Brendan Molyneaux were both killed by gun shot wounds on 10th January, 2010, at 4G Pearse House, Dublin 2. The gardaí were alerted, and a double murder investigation commenced.

4 The appellant was arrested at 9:25 p.m. on 10th January, 2010, following a forcible entry into the premises at his home in Finglas, where he was present with his partner and their young child. Immediately after the arrest, a search warrant which the gardaí had earlier obtained was shown to the appellant's partner, and the house was then searched on foot of that warrant. The validity of the search warrant was not challenged by the appellant. The appellant was brought to Kevin Street garda station, where his detention was authorised by Sergeant Brian Burke pursuant to s. 50 of the Criminal Justice Act 2007 (?the Act of 2007?) at 10:29 p.m. Sergeant Burke said he was satisfied that the appellant's detention was necessary for the full and proper investigation of the offences with which he was arrested, namely, the murders of Mr. Mooney and Mr. Molyneaux.

5 Whilst in custody, the appellant was interviewed on a number of occasions by the investigating gardaí, in the course of which admissions were made in respect of the double murder.

6 After an initial period of detention of six hours in Kevin Street garda station, the appellant's detention was extended by authorisation of Detective Superintendent Gabriel O'Gara. It is contended by the appellant that this authorisation of the extension of detention by Detective Superintendent O'Gara is not valid because he was not independent of the investigation into the double murder.

(i) The grounds of appeal relating to the appellant's arrest

7 Submissions were made to the learned trial judge in the course of a voir dire on Day 4 of the trial (20th April, 2012) in relation to the issue of the appellant's arrest. Evidence was given by Sergeant Paul Tallon, Superintendent Gabriel O'Gara and Chief Superintendent John Twomey in respect thereof.

8 Sergeant Tallon gave evidence that he attended at the scene of the double murder at approximately 8 p.m. on 10th January, 2010. He received confidential information which suggested that the appellant was the perpetrator of the double murder. A search warrant was obtained from Detective Superintendent O'Gara (s. 29 of the Offences against the State Act 1939 as amended) in relation to an address in Finglas, where it was known that the appellant was residing with his girlfriend and young child. A search team was assembled, including Sergeant Tallon as well as members of both the Emergency Response Unit (ERU) and the Organised Crime Unit of An Garda Síochána. On arrival, gardaí forced the front door and entered the premises. Sergeant Tallon stated in evidence that his purpose in entering the premises was two fold: one was to arrest the appellant, and the other was to search the premises.

9 Sergeant Tallon's evidence was that immediately upon entering the premises by force, the team confronted the appellant and arrested him at 9:25 p.m. The appellant's hands were placed in plastic bags for evidence related reasons. The appellant's partner was then informed about the search warrant; it was shown to her, and the premises were subsequently searched.

10 When asked about the power of arrest under which he had operated when arresting the appellant, Sergeant Tallon stated ? for an arrestable offence under the Criminal Law Act 1997?. Sergeant Tallon was extensively cross examined in relation to the basis upon which he arrested the appellant.

11 Mr. Gillane S.C., counsel for the appellant, made a detailed submission to the learned trial judge in relation to the arrest issue. He concluded his submission in the following terms:-

?But the Supreme Court .. indicated that it could not, and would not, separate what would have otherwise been a lawful from an initial unlawful arrest where the unlawful factor was the dominating factor through which and by which...