DPP v Howley

• Jurisdiction: Ireland
• Judge: WALSH J.,Hederman J.,McCarthy J.,
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-SC 995
• Docket Number: (156/88)
• Court: Supreme Court
• Date: 01 January 1989

1988 WJSC-SC 995

THE SUPREME COURT

Walsh J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

(156/88)

DPP v. HOWLEY

BETWEEN/

SEAN HOWLEY

Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Citations:

COURTS OF JUSTICE ACT 1924 S29

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP, PEOPLE V QUILLIGAN 1987 ILRM 606, 1986 IR 495

DPP, PEOPLE V BYRNE 1987 IR 363 1989 ILRM 613

DPP, PEOPLE V WALSH 1986 IR 722

DPP, PEOPLE V KELLY 1983 ILRM 271

TRIMBOLE V GOV MOUNTJOY PRISON 1985 ILRM 465

OFFENCES AGAINST THE STATE ACT 1939 S30(3)

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

WEBB V MIN OF HOUSING & LOCAL GOVT 1965 1 WLR 755

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 297

Synopsis:

CRIMINAL LAW

Arrest

Validity - Scheduled offence - Suspicion of garda - Cattle- maiming - Interrogation of arrested suspect - Suspect questioned about cattle-maiming and then about the death of a woman - Detention extended and incriminatory statement made by suspect about the death - Validity of continued detention - Continuance of original genuine suspicion at time of extension - Officer authorising extension unaware of murder enquiry - Admission of suspect's statement in evidence at his trial for murder - Conviction for murder - On 18/7/85 the accused was convicted of the murder of a woman; his appeal to the Court of Criminal Appeal was dismissed on 4/3/88 - That court was satisfied that the accused's incriminatory statement had been properly admitted in evidence at his trial for murder and that the jury had accepted the statement as being true - The accused appealed to the Supreme Court from that dismissal under a certificate granted by the Court of Criminal Appeal pursuant to s. 29 of the Act of 1924 - There had been a maiming of cattle at Ballina on 12/2/84 and that crime, which was a scheduled offence, was investigated by the Gardai and they suspected the accused of having committed that offence; that investigation was not abandoned at any material time - On 9/6/85 the body of a woman was found in a lake and the Gardai suspected that the accused was responsible for her death - On two occasions prior to the arrest of the accused the Gardai questioned the accused about the woman's death but he denied having any knowledge of it - At 11.30 a.m. on 26/6 the accused was arrested pursuant to s. 30 of the Act of 1939 by a garda who suspected the accused of having maimed the cattle - During most of the first 24 hours of the accused's detention he was questioned about the cattle maiming but he was also questioned about the death of the woman - The accused's detention was extended for a further period of 24 hours by direction of a Chief Superintendent who suspected the accused of having maimed the cattle and who was not aware, when he issued the direction, that the investigating gardai were making enquiries about a murder as well as enquiring about the cattle maiming - Shortly after the expiration of the first 24 hours the accused made a statement admitting that he had killed the woman, and that statement was admitted in evidence at the trial of the accused for murder - The accused was also questioned about the cattle maiming during the second period of his detention under s. 30 of the Act of 1939 - The first question raised in the certificate of the Court of Criminal Appeal was whether it was necessary for the prosecution to prove that the predominant motive for the arrest of the accused was the investigation of the cattle maiming - The second question raised in the certificate was whether the accused had been unlawfully detained during the second period of 24 hours because the officer who authorised the extension was unaware, when he did so, that the investigating gardai wished to question the accused about the woman's death as well as wishing to continue questioning him about the cattle maiming - Held, in disallowing the appeal, that the requirements of s. 30, sub-s. 1, of the Act of 1939 (which authorised the arrest) and the requirements of sub-s. 3 of that section (which authorised the extension of the detention) had been satisfied and that both questions should be answered in the negative: ~The People v. Quilligan~ [1986] I.R. 495, [1987] ILRM 606; ~The People v. Walsh~ [1986] I.R. 722, [1988] ILRM 137; ~The People v. Kelly~ [1983] I.R. 1, [1983] ILRM 271 and ~The People v. Byrne~ (Supreme Court - 3/4/87) considered - Courts of Justice Act, 1924, s. 29 - Offences Against the State Act, 1939, s. 30 - (156/88 - Supreme Court - 29/7/88) - [1989] ILRM 629

|The People v. Howley|

EVIDENCE

Admissibility

Statement of accused - Suspect - Arrest and detention - Legality of detention - Arrest on suspicion of commission of scheduled offence - Detention extended for second period - Suspect questioned about scheduled offence and about a murder - Suspect's incriminatory statement about murder admitted in evidence at his trial for murder - ~See~ Criminal Law, arrest - (156/88 - Supreme Court - 29/7/88) - [1989] ILRM 629

|The People v. Howley|

1 JUDGMENT delivered on the 29th day of July 1988by WALSH J. [HENCHY & GRIFFIN JJ AER]

2 The appellant was convicted on the 18th July 1986 for the murder of Lily Ormsby in the County of Mayo on a date unknown between the 29th May 1985 and the 9th June 1985.

3 Against this conviction he took an appeal to the Court of Criminal Appeal which dismissed his appeal in a judgment delivered the 4th March 1988. From that decision an appeal has been taken by him to this Courtpursuant to a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924, as re-enacted and maintained in force by the Provisions of the Courts (Supplemental Provisions) Act, 1961. In his notice of appeal to this Court dated the 11th May 1988 the appellant submitted that the points certified by the Court of Criminal Appeal as being of exceptional public importance should be determined by this Court in the appellant's favour. It was submitted that the trial Judge had erred in misdirecting himself in law in holding that all or any of the alleged confession/statements made by the appellant to members of the Garda in the course of investigation of the offence of murder with which he was charged were admissible in evidence at his trial and in admitting them in evidence to the jury. It was further submitted that the time when the alleged confessions were made the appellant was in unlawful custody and it followed that his confessions were inadmissible.

4 In the alternative it was pleaded that if, contrary tothe submissions referred to, the appellant's custody at the time when the confessions were made was lawful custody the confessions were obtained by unlawful means, and by means of the use by the Garda of the lawful custody for an unlawful purpose and were accordinglyinadmissible.

5 The points certified by the Court of Criminal Appeal as been points of law of exceptional public importance were stated as follows in theCertificate.

6 (a) Whether, notwithstanding the finding made by the learned trial Judge that the arrest of the accused pursuant to s. 30 of the Offences Against the State Act, 1939, was an arrest in respect of a genuine offence, based upon a genuine belief that the accused might have committed such offence, the arrest was unlawful unless on behalf of the prosecution it was established beyond a reasonable doubt that the predominant or primary motive for the arrest of the accused was the necessity to investigate the offence of maiming cattle, and

7 (b) a question of law as to whether, even if the arrest of the accused pursuant to s. 30 of the Offences Against the State Act, 1939, was lawful, the extension of his detention for a further twenty four hours ordered by Chief Superintendent O'Connor was unlawful by reason of the fact that he was not informed of the desire of the members of the Garda Siochana interviewing the accused to interview him not only in respect of the offence of maiming cattle but also in respect of his suspicion of an offence of murder."

8 The facts of the case as proved in evidence were that at 11.30 a.m. on the 26th June 1985 the applicant was arrested by members of the Garda Siochana pursuant to s. 30 of the Offences Against the State Act, 1939, on suspicion of having committed a scheduled offence namely, the maiming of cattle at Ballina in the County of Mayo on the 12th February 1984. The maiming of cattle is a scheduled offence because it is covered by the Malicious Injury Acts, the breaches ofwhich have been made scheduled offences. The twenty four hours permitted for the initial detention by s. 30 would have expired at 11.30 a.m. on June the 27th. He would then have had to be released or charged unless the detention was lawfully extended by an officer of the Garda Siochana not below the rank of Chief Superintendent. At approximately 10.30 a.m. on the 27th June Chief Superintendent O'Connor signed an extension order to extend the detention of the applicant for a further twenty four hours pursuant to the powers in that behalf given by s. 30 of the Act. This extension order was read over to the applicant at approximately 11.20 a.m. on the 27th, that is to say approximately ten minutes before the initial twenty four hours had expired. Shortly after midday on the 27th June 1985 the applicant made a statement admitting that he had murdered Lily Ormsby. This was taken down in writing and signed by him. He made further statements and visited the lake where the body of the deceased lady was found. At the trial and in giving evidence inhis own defence the appellant denied that the statement was his or that he made it and denied also committing the crime. The deceasedÆs body had, in fact, been found in the lake on the 9th June 1985, that is almost two weeks before the arrest of the appellant. From the time of the discovery of the deceasedÆs body the appellant was, as admitted by the members of the Garda Siochana in...