DPP v John Paul Buck

• Jurisdiction: Ireland
• Judge: McKechnie J.
• Judgment Date: 27 November 2014
• Neutral Citation: [2014] IECCA 45
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. 69 of 2009]
• Date: 27 November 2014

[2014] IECCA 45

THE COURT OF CRIMINAL APPEAL

McKechnie J.

Moriarty J.

Herbert J.

[C.C.A. 69 of 2009]

Between

The Director of Public Prosecutions

Prosecutor/Respondent

and

John Paul Buck

Accused/Appellant

Criminal Appeal – Convictions – Murder – Arson – Confession Evidence – Directions to Jury – Search Warrants – Media Coverage

Facts: The appellant was sentenced to the mandatory life term for murder and a term of five years for arson in respect of the dwelling house of the deceased. He sought leave to appeal against both convictions. The appellant appealed on the basis of four grounds: 1) The admission of confession evidence during his trial; 2) The admission of evidence found as a result of a search of the appellant“s home; 3) The adequacy of the trial judge“s direction to the jury in respect of the confession evidence and 4) The trial judge“s refusal to discharge the jury following media publicity surrounding the appellant“s brother“s attempt to escape from prison.

Held by McKechnie J: The trial judge had been satisfied with the explanation given by the Detective Garda that it was not possible to take the appellant“s confession down in writing and have him sign it at the time. However, the Detective Garda had taken it down in his notebook at the earliest opportunity. As a result, court of criminal appeal did not think it was appropriate to interfere with the way the trial judge exercised his discretion to admit the confession evidence. The appeal court also concluded there were no issues in relation to fairness in respect of the confession evidence on the same basis. The court determined that the first ground of appeal was not sustainable.

A search warrant had been issued pursuant so s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 to search the appellant“s home. The trial judge was satisfied that the search warrant was valid. The court believed that the trial judge“s approach to this issue was well founded. However, McKechnie J. went on to clarify that even if the search evidence had been obtained in a way that breached the appellant“s constitutional rights, it did not impact on the safety of the verdict as it was only a peripheral issue at trial. The second ground of appeal also failed.

The trial judge gave a direction to the jury in relation to the question of corroboration regarding the alleged admissions made by the appellant. The trial judge had identified aspects of the evidence that amounted to corroboration but also stressed it was an issue entirely for the jury. The appellant“ counsel complained that the trial judge had not adequately explained to the jury why such a warning was necessary. The appeal court restated that trial judges should remain aware of the statutory provisions and wider jurisprudence in relation to corroboration warnings. However, it also clarified that trial judges were not bound to give a corroboration warning in any particular form. The court was satisfied that the trial judge had explained the meaning of corroboration, the evidence capable of being treated as such and pointed out that the appellant“s admissions were made in an uncontrolled environment. The appeal determined court that the jury had been left in no doubt about the risk of acting on uncorroborated admissions and rejected this ground of appeal.

An application was made at the trial to discharge the jury because of the possibility that they heard a radio broadcast about the appellant“s brother“s attempt to escape from prison. It was argued that this publicity was prejudicial to the appellant and impacted on his right to receive a fair trial. The trial judge asked the jury directly if they had seen or heard anything on the radio or television that made it difficult for them to reach a verdict. Each jury member replied no. The trial judged was satisfied with this response and refused to discharge the jury. The appellant argued that the judged erred in refusing this application. The appeal court determined that the way the trial judge obtained the information from the jury was satisfactory. It had been phrased in general terms so as not to alert each juror to the publicity if any member had been exposed to it. There was no reason to believe the jury deferred from the trial judge“s directions that included the warning of having to reach a verdict based solely on the evidence heard at trial. For these reasons the fourth ground of appeal was rejected.

The court refused leave to appeal.

Judgment of the Court delivered by McKechnie J. on the 27 ^th day of November, 2014.

Introduction:

1 The appellant, Mr. John Paul Buck, was charged with the murder of one Fergus Roche (‘the deceased’) on the 1 ^st October, 2005 and on the same date, with arson in respect of the dwelling house of the deceased, namely 21, Haywood Close, Clonmel, Co. Tipperary. After a fifteen day trial he was found guilty, by a majority verdict, of both counts and was duly sentenced to the mandatory life term on the murder conviction and to a term of five years on the arson charge. Having been refused permission by the learned trial judge to so do, he now seeks from this Court, leave to appeal against both convictions.

2 The hearing of this application has been deferred on a number of occasions as the appellant previously sought leave to adduce additional evidence which this Court refused, as it did his subsequent application for a certificate, arising out of that decision, under s. 29 of the Court of Justice Act 1924, as amended. Following a similar refusal by the Attorney General, the application then proceeded to a determination.

3 The grounds of appeal are four in number and relate to the following matters of complaint:-

1) The admission into evidence of the alleged confession made by the appellant to Detective Garda Bergin (Ground No. l);

2) The admission into evidence of the fruits of a search carried out at the appellant's home on the 1 ^st October, 2005 (Ground No. 2);

3) The adequacy of the trial judge's direction to the jury on the question of corroboration relative to this alleged confession (Ground No. 3); and

4) The refusal of the trial judge to discharge the jury following extensive media publicity in relation to the appellant's brother's attempted escape from Limerick Prison, at a time when the jury were still deliberating on their verdict (Ground No. 4).

Ground Number 1:

4 On the 7 ^th August, 2006 Detective Garda Bergin (‘D/G Bergin’) was on duty at Clonmel Garda Station, which had carriage of the investigation into these crimes, when a colleague received a phone call from Mr. Buck, sometime around 3.00 a.m., to the effect that he wished to meet D/G Bergin at a nominated spot just outside town. On being so informed, D/G Bergin, who was involved in the investigation, duly drove to the location in question and picked the accused up; immediately on entering the car he asked or demanded that the garda would turn off his mobile phone, which he did. After driving around for some 30 or 40 minutes, Mr. Buck was dropped back to his home address, some short distance from where the deceased lived, with the garda returning to the station. Before his shift of duty ended, D/G Bergin, in the early hours of that morning, made a note of the conversation previously had with the appellant. On the following day, the 8 ^th August, 2006, he informed his Superintendent and Detective Sergeant O'Riordan, of what had happened and then proceeded to make a more comprehensive statement about this matter. Nothing turns on this communication which, in any event, the garda was duty bound to make.

5 It was alleged by the prosecution at trial that during the course of the car journey, the appellant made an incriminating admission(s) to the effect that he had killed Fergus Roche. On tendering such evidence, objection was taken on his behalf, whereupon the learned trial judge embarked upon a voir dire so as to determine the issue.

6 The only evidence given on this matter, during the judge's investigation of the objection, was that of D/G Bergin, who explained what occurred during the course of that journey. On entering the car and after a brief conversation, Mr. Buck, who appeared agitated and tense, said to the garda: ‘What's the story, what's the story?’, to which came the reply: ‘What do you mean?’. It is not quite clear if the garda then said: ‘Why are you agitated?’. Whether he did so or not, is not central. Mr. Buck continued: ‘You know why, you know why’, and then he said: ‘I did it. I did it’. The D/G responded ‘You did what?’, and the reply was that he had stabbed Fergus once in the chest when he was asleep because he had grassed him up. (Day 6, pp.8–9)

7 Immediately having stated this, D/G Bergin started to caution the appellant only to be interrupted with the words ‘You know and I know what I say and what you say is no good unless it is on tape’ (Day 6, p. 9). After another short exchange a second attempt to caution was also made, but was met with the same response. There then followed the final exchange of any relevance with the garda asking the accused why he was telling him this, and with Mr. Buck saying, that he was sorry for what he did to Fergus and that it pissed him off every day.

8 The challenge to the admission of this confession rested on rules 4, 6 and 9 of the Judges' Rules and/or on the basis outlined by Griffin J. in The People (Director of Public Prosecutions) v. Shaw [1982] 1 I.R. 1 (‘ Shaw’). In his ruling the trial judge, who held that at no stage throughout this encounter was Mr. Buck in custody, specifically found as a fact, that the garda did not realise what the appellant was about to confess to, accepting for this purpose his evidence, that it could have been about numerous other matters, such as an issue of domestic...