DPP v McCormack

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 17 April 2007
• Neutral Citation: [2007] IEHC 123
• Court: High Court
• Date: 17 April 2007

MCCORMACK v CIRCUIT COURT JUDGE & DPP

judicial review

Between

kevin McCormack

Applicant

and

the Judge of the Circuit Court and the Director of Public Prosecutions

Respondents

[2007] IEHC 123

[No. 556 J.R./2005]

The high court

CRIMINAL LAW

Detention

Interview - Memorandum of interview - Whether accused should have been given opportunity to put his case in interview - Use of profane language - Whether everything said in interview had to be written down - CCTV recordings - Whether gardaí obliged to keep recordings - Whether matters raised were matters of evidence or could be subject of judicial review - Whether real and serious risk of fair trial - DC v DPP [2005] IESC 77, [2005] 4 IR 281, Z v DPP [1994] 2 IR 476, Bowes v DPP [2003] 2 IR 25, Dunne v DPP [2002] 2 IR 305 and Mitchell v DPP [2002] 2 IR 396 applied - Prohibition refused (2005/556JR - Charleton J - 17/4/2007) [2007] IEHC 123

McCormack v Judge of the Circuit Court

The applicant was given leave to apply for judicial review to restrain the respondents from trying him for offences. His grounds were that the gardaí failed to properly conduct and make a written record of the interviews they had with him while he was briefly in custody when arrested; and that his right to a fair trial had been seriously undermined by reason of the failure of the gardaí to preserve all closed circuit television footage taken from security cameras in or around the place where the crime occurred.

Held by Charleton J. in refusing the relief sought that the questions raised in the judicial review were ones correctly to be resolved by the law of evidence. The applicant had to show that there was a real or serious risk that a fair trial had become impossible by reason of an occurrence which precluded a fair trial notwithstanding the power and duty of the trial judge to make appropriate rulings as to the admissibility of evidence and to give appropriate directions as to the law to be applied in weighing evidence to the jury.

Reporter: R.W.

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 (ELECTRONIC RECORDING OF INTERVIEWS) REGS 1997 SI 74/1997

DPP v CLARKE 1994 3 IR 289 1995 1 ILRM 355

AG, PEOPLE v CROSBIE 1 FREWEN 231

DPP v LAWLESS 3 FREWEN 30

LUDLOW v DPP & JUDGE O'SHEA UNREP HIGH DUNNE J 16.7.2005 2005/36/7573

NATIONAL IRISH BANK LIMITED, (UNDER INVESTIGATION), IN RE 1999 3 IR 190 1999 2 ILRM 443

MCFARLANE v DPP & SPECIAL CRIMINAL COURT UNREP HARDIMAN 7.3.2006

MCGRATH EVIDENCE 2004 691

BOWES & MCGRATH v DPP 2003 2 IR 25

BYRNE v GREY & IRELAND & AG 1988 IR 31

BERKELEY v EDWARDS & IRELAND & AG 1988 IR 217

DPP v O'C (P) UNREP DENHAM 27.7.2006

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241

MITCHELL v DPP 2000 2 ILRM 396 (REPORT ONLY)

1 JUDGMENT of Mr. Justice Charleton delivered on the 17th day of April, 2007

2 1. On Sunday 4th of July, 2004, Renata Bubeniene drove into the city centre from Lucan and parked her car. As she was walking along Amiens Street, a young man came along and yanked her handbag out of her possession and ran away towards Buckingham Street. She reported the crime to Store Street Garda station and described the culprit. As it happened, the applicant had been seen by Garda Wayne Kelly, some fifteen minute before this incident had occurred, on Amiens Street. The clothing of the applicant matched the description given by the victim. Shortly after the complaint, the applicant was seen by the gardaí and, fitting the relevant description, he was arrested. He was cautioned in accordance with the Judges' Rules and taken to Store Street Garda station. There, he was detained pursuant to s. 4 of the Criminal Justice Act, 1984, and was required to undergo two periods of interviews by gardaí. These were conducted in accordance with the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997. The accused denied the offence. On being charged, he was granted bail and the case was set for trial before the Circuit Criminal Court. The trial has not yet taken place.

3 2. On 20th June, 2005, Kevin McCormack was given leave by the High Court to commence an application for judicial review. In these proceedings he seeks to restrain the respondents from trying him on the offences with which he is charged. His grounds are that the gardaí failed to properly conduct and make a written record of the interviews they had with him while he was briefly in custody when arrested on this matter; and that his right to a fair trial has been seriously undermined by reason of the failure of the gardaí to preserve all closed circuit television footage taken from security cameras in or around the place where the crime occurred.

3. The Video

4 The applicant argues that the video evidence of the two Garda interviews with him discloses a "disgraceful situation". In the video recordings, it is claimed, derogatory comments are made about the accused and about his solicitor. The questioning of the gardaí, it was alleged, was littered with profanities. To make matters worse, I was told, one of the gardaí used the time when he should have been concentrating on interviewing the accused to practice playing yo-yo. A legal issue also emerged. It was said that an accused person on arrest has an entitlement to be given a chance to make his case; and that the unstructured and chaotic nature of this interview deprived the accused of an opportunity to make on video his answer to the charge of handbag stealing. His case in defence was, his counsel told me, that he was indeed in Amiens Street in or around the relevant time but that, by the time the offence had been committed, he had gone to his granny's house to have dinner; in consequence, he did not commit the offence.

5 4. It might be regarded as unusual for an accused, even in the form of an applicant for judicial review before the High Court, to claim that the gardaí should give him an opportunity to present his defence. The rule in criminal cases is that the accused, subject to some very limited exceptions, is not obliged to make any case in defence of a criminal charge and the prosecution, in general, are not entitled to know what the defence case is unless a statutory exception applies, such as that related to the notification to an alibi. There is a growing practice, however, of persons arrested for crime to use the opportunity of being questioned in Garda custody to deny the offence. Sometimes the statements made will be entirely self-serving but may, nonetheless, subject to the discretion of the trial judge as to the admissibility of confession evidence, be presented as part of the prosecution case. In The People (D.P.P.) v John Clarke [1995] 1 I.L.R.M. 355, the trial judge hearing a murder case, had told the jury that a mainly ex-culpatory statement made in Garda custody by the accused, was not evidence as to fact, but merely evidence of what had been said to the gardaí. The Court of Criminal Appeal, relying on The People (A.G.) v. Crosbie (1961) 1 Frewen 231, held that a statement of the accused, once put in evidence by the prosecution, is to be treated as evidence of the facts stated. I quote at p. 367:-

"The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a statement is put in evidence, as in this case by the prosecution, it then and thereby becomes evidence in the real sense of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence, but they should be told to receive, weigh and consider them as evidence."

6 5. The Court of Criminal Appeal did not comment adversely or at all on the instruction of the trial judge to the jury in that case that such evidence should be weighed by them bearing in mind that such a statement was not sworn or subject to cross-examination. This is, to my mind, a correct direction. It can perhaps be wrong for the jury to be asked to consider a long series of entirely ex-culpatory statements by the accused. In rape cases, this practice can lead to an imbalance in the proceedings. The rule that statements by an accused person were admissible in evidence was grounded on an exception to the hearsay rule that an admission against interest should be considered by the tribunal of fact. A self-serving statement does not fall within that exception, but the vast majority of cases of this kind, as in Clarke's case, are mixed; proving, if accepted, some facts for the prosecution and asserting a defence for the accused. In rape and sexual assault cases, the accused may use the opportunity of every interview to reiterate, for instance, that his encounter with the alleged victim was consensual.

7 6. Must all of these be repeated in evidence in front of the jury? Where the alleged victim apparently comes at the first opportunity that reasonably presents itself and complains freely that he or she has been raped or sexually assaulted, it is usually only the first complaint that is admitted in evidence; and that solely to show the consistency of the case being made by the complainant. This rule is an exceptional one and it only applies in sexual assault type cases. To allow the repetition of the complaint, under the doctrine of recent complaint, as it is known, would be to infringe the rule against self-corroboration. It is difficult to know how an accused's statement should be subject to any different rule if admitted in evidence. The control of this, in the interests of fairness, must be a matter for the trial judge.

8 7. In The People (DPP) v. John Lawless (Unreported, Court of Criminal...