DPP v O'Loughlin
1978 WJSC-CCA 2257
COURT OF CRIMINAL APPEAL
JUDGEMENT of the Court delivered this 11th day of December 1978. O'HIGGINS C.J.
The applicant, John O'Loughlin, was charged on an on an indictment containing two counts before His Honour Judge Sheridan and a Jury in the Circuit Criminal Court at Waterford. In the first count he was charged with the larceny of a muck spreader the property of one Michael Cummins. In the second count he was charged with receiving the said spreader. The trial Judge having given a direction on the receiving charge the applicant was, on the 25th February 1978 convicted on the count of larceny. On the applicant undertaking to pay the price of the muck spreader and entering into the usual undertakings a suspended sentence of two years' imprisonment was imposed. The applicant now applies for leave to appeal against his conviction.
The case against the applicant was as follows. The owner of the muck spreader, one Michael Cummins, swore that he found it in July 1977, some fourteen months after this machine and a tractor of his had disappeared. He said he found it on C'Loughlin's farm. The matter having been reported to the Gardaf, members of the force went out to O'Loughlin's house. When confronted by the Gardaf with the information given by Cummins, the applicant first made a verbal statement to the effect that he had bought the muck spreader some three months previously from a dealer outside Inistioge for £80 and that he had not got a receipt. This verbal statement was made on the morning of the 19th July 1977 in the Garda Station at Carrick-on-Suir. Later, on the same day, at about 10 o'clock at night, in the Garda Station at Clonmel, the applicant made a written statement. In this written statement he admitted taking the tractor and spreader from Michael Cummins's farmyard in May 1976. He said he later abandoned the tractor on the side of a road but kept the spreader. In this statement he offered no excuse for what he had done. At the close of the State case the applicant gave evidence. In the course of this evidence his Counsel sought to ask questions designed to establish a defence that when he took the spreader the applicant believed that he was entitled to do so because Michael Cummins owed him money which he had refused to pay. After legal argument the trial Judge refused to permit this evidence to be given.
Prior to the introduction into evidence of the two statements, objection as to their admissibility was taken by Counsel for the applicant. Evidence adduced before the trial Judge then established that these statements were made under the following circumstances. On the morning of the 19th July 1977 Sergeant O'Shea, armed with a search warrant, went to the applicant's house. He was accompanied by Inspector Hayes, Garda Byrne and Detective-Garda Flanagan. He there saw the spreader. The applicant was interviewed and later accompanied Sergeant O'Shea to Carrick-on-Suir Garda Station. At the Garda Station, having been cautioned by Sergeant O'Shea, the applicant made the verbal statement already mentioned. This was about 9.30 in the morning. The applicant remained in the Gardaf Station while the Gardaf checked his statement. This involved telephoning the Gardaf at Thomastown to request that they make investigations at Inistioge. At about 2 o'clock the applicant was informed by Detective-Garda Flanagan that his story had been checked and that Mr. Burke, the dealer in Inistioge had denied ever selling him the spreader. At the same time as this offence with regard to the spreader was being investigated, Inspector Hayes and other Garda officers were investigating an outbreak of cattle-stealing in the locality. They suspected that the applicant might be concerned. Some time after 2 o'clock on the 19th July, Inspector Hayes brought the applicant from Carrick-on-Suir Garda Station to Clonmel Garda Station. While there he was questioned frequently and at length with regard to the stealing of cattle. From time to time he was visited by members of his family. While he was being questioned about cattle-stealing at around 9.30 that night by Inspector Hayes, he said he would tell the full story about the spreader. Later, at about 10 o'clock, after caution, he made the written statement already referred to. This was taken by Sergeant O'Shea. Having completed the statement he was charged and formally taken into custody. In all the applicant had been in the company of the Gardaf for almost thirteen hours before he was charged with any offence. In the course of his evidence, Detective-Garda Flanagan stated that at 2 o'clock after the verbal statement had been disproved he would have been formally arrested and charged had he attempted to leave Carrick-on-Suir Garda Station. The applicant remained there and subsequently remained in Clonmel because Inspector Hayes wished to question him with regard to the more serious offence of cattle-stealing.
The grounds of objection to the admissibility of both these statements which are relevant to this motion are those which are based on the fact that the accused had not been formally arrested despite the fact that he was in custody from the moment he was Carrick-on-Suir Garda Station. It was submitted that this was the case. It was, therefore, urged that his detention was unlawful and in breach of his constitutional rights. Reliance was placed on the decision of the Supreme Court in Attorney General v. O'Brien 1965 I.R. and of the decision of this Court in Attorney General v. Madden (at present unreported). The learned trial Judge having considered the matter gave his ruling with regard to this aspect of the objection to the statements in the following terms. I quote:
"I must take it that the accused was in custody after his arrival at Carrick-on-Suir Garda Station and, beyond doubt, on the evidence of Detective-Garda Flanagan, after a phone call from Inistioge which occurred about 2 o'clock to Carrick-on-Suir Garda Station. If the matter can be subdivided into component parts, I would be of the view that sufficient information was in the hands of the Gardaf after the phone call so as to allow them to consider their investigations complete. So it was with the theft of the motor car in Salthill in the Shaw case, but in my view, the Gardaf were still vitally interested in the problem of cattle rustling and wished to pursue the questioning of the accused with documents left in Clonmel Garda Station. I am of the view that the actions of the Gardaf were not designed to make their case better in relation to the muck spreader, but to try and get as much help as they could, by way of information, from the accused. I don't think the motive was for the purpose of preparing a good and plausible case against the accused which was found offensive in the Supreme Court Judgments in Dunne v. Clinton. If I am wrong in this, I am clearly of the view that the custody was lawful at least until the phone call from Inistioge confirming...
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