DPP v Liam Bolger

JurisdictionIreland
JudgeDenham C.J.
Judgment Date14 March 2013
Neutral Citation[2013] IECCA 6
CourtCourt of Criminal Appeal
Date14 March 2013

[2013] IECCA 6

THE COURT OF CRIMINAL APPEAL

Denham C.J.

de Valera J.

McGovern J.

CCA No. 292/09
DPP v Bolger
Between/
The People at the suit of the Director of Public Prosecutions
Respondent

and

Liam Bolger
Applicant

CRIMINAL JUSTICE ACT 1964 S4

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 S19

CRIMINAL JUSTICE ACT 2007 S28

CRIMINAL JUSTICE ACT 2007 S29

CRIMINAL JUSTICE ACT 1984 S19(A)

CRIMINAL JUSTICE ACT 2007 S30

DAMACHE v DPP 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

BYRNE, STATE v FRAWLEY 1978 IR 326

CORRIGAN v IRISH LAND CMSN 1977 IR 317

DPP, PEOPLE v BIRNEY 2007 1 IR 337 2006/6/1072 2006 IECCA 58

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88 2006 2 ILRM 481 2006/1/11 2006 IESC 45 2006 IEHC 169

DPP v CRONIN (NO 2) 2006 4 IR 329 2006 2 ILRM 401 2006/13/2579 2006 IESC 9

DPP v O'REGAN 2007 3 IR 805 2008 1 ILRM 247 2007/21/4313 2007 IESC 38

DPP v HUGHES UNREP CCA 2.7.2012 2012/12/3297 2012 IECCA 69

DPP v KAVANAGH & ORS UNREP CCA 24.5.2012 2012/12/3438 2012 IECCA 65

DPP v O'BRIEN UNREP CCA 2.7.2012 2012/13/83672 2012 IECCA 68

DPP v CUNNINGHAM UNREP CCA 19.10.2011 2011/16/3778 2011 IECCA 64

O'BRIEN v SPECIAL CRIMINAL COURT & DPP UNREP O'NEILL 11.12.2009 2009/43/10824 2009 IEHC 555

MORRIS REPORT OF THE TRIBUNAL OF INQUIRY SET UP PURSUANT TO THE TRIBUNALS OF INQUIRY (EVIDENCE) ACTS 1921-2002 INTO CERTAIN GARDAI IN THE DONEGAL DIVISION

R v GALBRAITH 1981 2 AER 1060 1981 1 WLR 1039 1981 73 CR APP R 124

DPP v LEACY UNREP CCA 3.7.2002 2002/9/2136

Criminal law- Criminal procedure- Evidence- Murder- Admissibility- Unconstitutional search- CCTV evidence- Direction- Whether the trial judge had applied the appropriate standard of proof

Facts: The applicant was convicted for murder and sought leave to appeal against his conviction. The applicant alleged that his arrest had been unlawful, that unlawful inferences from his silence had been drawn, an unconstitutional search had been conducted rendering the fruits inadmissible, that that CCTV footage should not have been introduced and that there was a failure by the trial judge to give a direction at the end of the prosecution case.

Held by the Court of Criminal Appeal that the Court was satisfied that the trial judge applied the standard of proof beyond reasonable doubt in ruling to admit the memorandum of interview. The evidence was properly admitted. The trial judge was correct in deciding that the CCTV evidence was admissible. No error had occurred in respect of the ruling. No fundamental injustice arose and the appeal for leave to appeal would be refused.

1

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

2

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

3

2. The applicant was convicted on the 17 th 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 13 th September, 2008.

4

3. The applicant was charged as follows:-

5

Statement of Offence

6

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

7

Particulars of Offence

8

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

9

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

10

(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.

11

(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.

12

(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.

13

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

14

(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.

15

(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.

16

(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.

17

(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.

18

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 23 rd 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:-

19

(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 13 th 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 23 rd 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.

20

(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.

21

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

22

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
23

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
24

8. The five issues are:-

25

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

26

(ii) The Damache issue.

27

(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.

28

(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.

29

(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
30

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...

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