DPP -v- Liam Bolger, [2013] IECCA 6 (2013)

Docket Number:292/09
Party Name:DPP, Liam Bolger
Judge:Denham C.J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

CCA No. 292/09

Denham C.J.

de Valera J.

McGovern J.

Between/

The People

at the suit of the Director of Public Prosecutions

Respondent

and

Liam BolgerApplicant

Judgment of the Court delivered on the 14th March, 2013, by Denham C.J.

  1. This is an application for leave to appeal by Liam Bolger, the applicant, who is referred to as “the applicant”, against conviction.

  2. The applicant was convicted on the 17th November, 2009, at the Central Criminal Court (Carney J.), for the offence of murder, and was sentenced to life imprisonment, the sentence to run from the 13th September, 2008.

  3. The applicant was charged as follows:-

    Statement of Offence

    Murder, contrary to common law and as provided for by section 4 of the Criminal Justice Act, 1964.

    Particulars of Offence

    Liam Bolger, on 13th September, 2008 at Byrnes Bookmakers, Killester Avenue, Donnycarney, in the County of the City of Dublin, did murder one Christopher Barry.

  4. The applicant has filed eight grounds of appeal against his conviction:-

    (i) The Learned Trial Judge erred in law and in fact in permitting the admission into evidence of photographic stills of an unidentified white van at various locations in Dublin.

    (ii) The Learned Trial Judge erred in law in circumstances where he found the applicant to have been unlawfully detained by Garda Ronan Clogher and subsequently arrested at a time when he was unlawfully detained and accordingly the fruits of that arrest ought to have been excluded from the evidence.

    (iii) The Learned Trial Judge erred in law and in fact in allowing the admission into evidence of an interview with the applicant whilst in Garda custody, in which interview sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007, were invoked.

    (iv) The Learned Trial Judge erred in refusing an application for a direction at the conclusion of the prosecution case.

    (v) The Learned Trial Judge erred in law and in fact in the manner in which the jury were re-directed when requested by them on the issue of inferences to be drawn under sections 18 and 19 of the Criminal Justice Act, 1984 as substituted by sections 28 and 29 of the Criminal Justice Act, 2007 and section 19A of the Criminal Justice Act, 1984 as inserted by section 30 of the Criminal Justice Act, 2007.

    (vi) The Learned Trial Judge erred in law and in fact in re-charging the jury on the issue of the consequences of the applicant's original solicitors’ advice in respect of inferences to be drawn thereto.

    (vii) The trial was unsatisfactory by reason of the reliance, by the prosecution, upon phone records which sought to demonstrate the presence of the applicant in the vicinity of the murder of Mr. Christopher Barry, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence, taken at its highest, demonstrated nothing more than mere presence at a particular place.

    (viii) The trial was unsatisfactory by reason of the reliance by the prosecution upon video surveillance evidence of an unidentified motorbike and rider travelling through certain locations in Dublin and similar evidence of an unidentified white van travelling through certain locations, in Dublin, as evidence from which adverse inferences could be drawn of an agreement by the applicant to a criminal joint enterprise, namely the murder of Mr. Christopher Barry when such evidence neither identified the Accused nor any other person as being responsible for the movements of either the said motorbike or van.

  5. The State agreed that the applicant was entitled to argue the additional grounds of appeal (arising out of Damache v. Director of Public Prosecutions [2012] IESC 11 (Judgment of the 23rd February, 2012, by Denham C.J.)) contained in a motion for leave to amend the grounds of appeal and this appeal was listed as including these additional grounds. The additional grounds are:-

    (i) The applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence in the applicant's trial which was obtained in a search of the applicant’s home at 9 Homelawn Gardens, Tallaght, on the 13th September 2008 carried out pursuant to a search warrant obtained under s. 29 of the Offences Against the State Act, 1939 (as amended) where the said provision has been found repugnant to the Constitution on the 23rd February, 2012, thus rendering the applicant’s trial unsafe and unsatisfactory by reason of the admission of evidence so obtained in breach of the applicant's constitutional rights.

    (ii) Further or in the alternative to the foregoing, the applicant’s conviction is unsafe and unsatisfactory by reason of the admission of evidence concerning test results on a hatchet found at the applicant’s address and evidence concerning mobile phones found at that address in circumstances where the search warrant power employed to search the applicant’s home is unconstitutional, thereby rendering the evidence so obtained and presented in the trial to be inadmissible.

    (iii) Such other grounds as may be advanced at the hearing of this case with the leave of this Honourable Court.

  6. Oral and written submissions were advanced to the Court on behalf of the applicant and on behalf of the Director of Public Prosecutions

    Counsel for Applicant

  7. Counsel for the applicant moved the application by making submissions in relation to five issues, and the judgment will address those issues sequentially.

    The Five Issues

  8. The five issues are:-

    (i) The legality of his arrest. Counsel submitted that there were consequences arising from an alleged unlawful arrest on the 13th September, 2008.

    (ii) The Damache issue.

    (iii) The inference from silence issue. Counsel submitted that the learned trial judge erred in relation to his charge and re-charge to the jury on the issue of drawing inferences from the applicant’s silence during interviews and questions put to him under s. 18, 19, 19A of the Criminal Justice Act, 1984, as, respectively, substituted by s. 28 and s. 29 and inserted by s. 30 of the Criminal Justice Act, 2007.

    (iv) The CCTV footage issue. Counsel submitted that the trial was unsatisfactory by reason of the reliance upon evidence of the applicant’s phone records and CCTV evidence to show an agreement by the applicant to act in a joint enterprise for the murder in issue when the evidence could not be probative of such matters.

    (v) The direction issue. Counsel submitted that there was a failure by the learned trial judge to give a direction at the end of the prosecution case.

    The legality of his arrest

  9. The sighting of a Renault Kangoo van with the registration number identified initiated action by An Garda Síochána in Tallaght. At 4.15 p.m. the van was observed by Garda Clogher and Detective Sergeant McManus driving out of Avonbeg Park. The driver was later identified as the applicant. The gardaí followed the van and viewed activities outside the applicant’s home, including the wiping of the passenger door of the van. The applicant drove the van away from his home and the gardaí followed. At 4.45 p.m. the applicant was stopped by gardaí at Avonbeg Gardens. There were discussions between the gardaí, and the applicant was invited to produce his documents. During this time the applicant signed Garda Clogher’s notebook, after caution, admitting the false name of Peter Byrne on the registration document for the vehicle, and ownership of a specific phone number. There was no arrest at this time.

  10. The applicant was arrested on the 13th September, 2008 at 5.45 p.m. by Detective Sergeant Kelly. It was the applicant’s case that he had been placed in unlawful detention by Detective Garda Clogher from approximately 5 p.m. onwards before he was arrested at 5.45 p.m.. It was submitted that this tainted the arrest and subsequent detention and thus the exclusionary rule would apply to any evidence obtained.

  11. On the 6th November, 2009, the trial judge at p. 32 lines 4 to 19 of the transcript ruled:-

    “In relation to this issue the onus is on the prosecution to negative what is raised, to the standard beyond reasonable doubt. Having regard to the evidence as a whole, which has been heard here over two days, the only rational explanation of the totality of the evidence is that Mr. Bolger was being kept on ice until he could be arrested by Sergeant Kelly. The test would have been what happened had he tried to leave. Now he didn’t, in fact, try to leave but the guard he was in conversation with said twice in the course of his evidence, ‘Well, if that situation had arisen, I would have to think about the situation’, and consider his options. So if he isn’t sure in relation to the situation which was prevailing, how can I be sure to the standard of beyond reasonable doubt that he was free to go. Guard Clogher (sic) also dropped his guard and, in a moment of inadvertence to the position he was taking, referred to what was going on as ‘The detention’ so in all the circumstances it is impossible for me to be satisfied to the standard of beyond reasonable doubt that he was not being unlawfully detained, being kept on ice, for the purpose of the arrival of Sergeant Kelly for the purpose of arresting him.

    Accordingly, I find that period of one hour or so to be unlawful, an unlawful detention, but I don’t see any infirmity in relation to the validity of the arrest of Sergeant Murphy or Sergeant Kelly. Jury back please.”

  12. The first relevant arrest was by Detective Sergeant Kelly at 5.45 p.m., under s. 30 of the Offences Against the State Act, 1939. However, while the learned trial judge made a ruling that there was a detention which was unlawful, the first arrest of the applicant in relation to these proceedings was at 5.45 p.m. by Detective Sergeant...

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