DPP v McGing
1985 WJSC-CCA 2035
THE COURT OF CRIMINAL APPEAL
NORTHERN BANK FINANCE V CHARLTON
OFFENCES AGAINST THE STATE ACT 1939
OFFENCES AGAINST THE STATE ACT 1939 S30
PEOPLE V KELLY (NO 2)
Court of Criminal Appeal - Function - Findings of fact by court of trial - Conviction in Special Criminal Court - Court of trial deciding that incriminating statement of accused made voluntarily - Decision based on acceptance of credibility of particular witness - Decision supported by evidence - Refusal of appellate court to interfere with decision (C.C.A. - 12/11/85) - 3 Frewen 18
|The People v. McGing|
Admissibility - Statement of accused - Whether a voluntary statement - Conviction in Special Criminal Court - Appeal - Submission that statement obtained by duress - Court of trial deciding that statement made voluntarily despite some discrepancies in testimony of prosecution witnesses - Decision based on acceptance of credibility of particular witness - Decision of court of trial supported by evidence - Refusal of appellate court to interfere with decision of court of trial - (C.C.A. - 12/11/85) - 3 Frewen 18
|The People v. McGing|
Interrogation - Woman - Presence of policewoman not essential - Policewoman present in police station during period of interrogation - Suspect interrogated for periods of significant length by single policeman - Suspect visited by her solicitor on three occasions - Incriminatory statement made by suspect - Duress and unfair procedures not established - (C.C.A. - 12/11/85) - 3 Frewen 18
|The People v. McGing|
JUDGMENT OF THE COURT delivered the 12th day of November 1985 by HEDERMAN J.
The applicant was arrested on December 21st, 1983 under Section 30 of the Offences Against the State Act 1939and brought to Castlebar Garda Station. She remained in Garda custody until December 23rd, 1983 when she was brought before the District Court at Balla. She was there charged with having on the 20th and 21st December 1983 in County Mayo harboured and assisted three persons, not then arrested, knowing that they had committed a felony, i.e., possession of a firearm with intent to endanger life. She was subsequently charged with a further offence that on the 20th December 1983, in County Mayo, she harboured and assisted three persons, not then arrested, knowing that they had committed a felony, i.e., false imprisonment. The applicant was tried on both these counts by the Special Criminal Court on the 1st, 2nd, 6th and 7th of November, 1984. She was convicted on the first count and sentenced to imprisonment for twelve months and acquitted on the second count. Having been refused leave by the Court to appeal, she has now applied to this Court for such leave.
Evidence was given at the trial that on the 20th December 1983 three members of the Gardaí in uniform were on duty at Ballaveeney Bridge, Ballycroy, Co. Mayo at about 9.15 p.m. They signalled a motor car coming from the Mulrany direction to stop. There were five people in the car, one of whom was carrying a gun, which appeared to one of the Guards to be a machine gun. The three Guards were forced at gunpoint to lie down on the roadway and were tied up. The Garda car was driven up a laneway by one of the occupants of the car which had been intercepted; and the latter car was then driven off at speed towards Mulrany. It was accepted at the trial, and at the hearing of this application, that the only evidence tending to connect the applicant with these events were certain verbal admissions alleged to have been made by her while she was in custody in Castlebar Garda Station and a statement reduced to writing, but not signed by her, which she was alleged to have made while in such custody.
In the course of the alleged statement, the applicant said that on the 20th December, 1983 she was approached by a person whose identity she did not wish to disclose to help in the transportation of three people from Charlestown to Ballycroy. She gave an account of having been driven with three men who were unknown to her, by a Mrs. McIntyre, with the object of leaving the men at a house there. The alleged statement goes on to describe the halting of the car at a Garda checkpoint on the Ballycroy Road, the production by the three men of guns and the driving of the Garda car up a side road. It says that one of the three men then took over the driving of Mrs. McIntyre's car and that she (the applicant) was asked where she could get another house for them. The statement says that she (the applicant) knew Colman O'Raghallaigh from Claremorris had a new house built just outside that town and that she decided to take the three men there, which she did. In the course of the alleged statement, the applicant also said that she was a member of Sinn Fein for the past eighteen months and that she assumed that the three men were members of "the Republican movement".
The alleged statement begins with the words:-
"I have been cautioned that I need not make a statement unless I wish to do so but any statement I do make will be taken down in writing and may be used in evidence."
It ends with the words:-
"This statement has been read over to me and it is correct, except for one point we did not reverse up the side road past the checkpoint, we drove up it. I have no other additions or alterations to make in it."
The whole of the alleged statement is in the handwriting of Detective Sergeant Patrick Tuohy, who was attached to Castlebar Garda Station. The written statement is followed by the words "Miss McGing declined to sign the statement", underneath which are the signatures of Sergeant Tuohy and Detective Garda Patrick Walsh, a member of the Criminal Investigation Section of the Garda Technical Bureau, at Garda Headquarters.
The evidence as to the taking of this statement, and the making of the alleged vergal admissions which preceded it, may be summarised as follows. Sergeant Tuohy said that he arrested the applicant under Section 30 of the Offences Against the State Act at 9.45 p.m. on December 21st at a house in Castlebar because he believed that she was a member of an unlawful organisation, namely, the Irish Republican Army. He then had her conveyed to Castlebar Garda Station. He said that on the following day he went with Detective Garda Walsh to the Detective Branch Office in Castlebar Garda Station at approximately 6.15 p.m. Mr. Patrick Moran, Solicitor, had just left at that stage. He said that the applicant was in the office alone and that Garda Walsh cautioned her that she was not obliged to say anything unless she wished to do so but that anything she would say would be taken down in writing and might be used in evidence. He said that Garda Walsh then told her that the Gardaí were satisfied that she had left three armed men at the home of Colman O'Raghallaigh in Claremorris on the night of the 20th and that the Gardaí believed that those three men had earlier been involved in the armed robbery and false imprisonment of three Gardaí at Ballycroy. He said that the applicant replied:-
"Yes, they were the men but, as I have told you already, we did not expect to meet any Guards."
Sergeant Tuohy said he then asked the applicant to tell them about her involvement in the incident at Ballycroy and that she replied:-
"Yes, I'll tell you my part. Colman O'Raghallaigh has told you his. Tommy Devereux is here in the station and he can speak for himself."
Sergeant Tuohy said he then asked her if she wished to make a statement and that she said she did. He said that he cautioned her that she was not obliged to make a statement unless she wished to do so but that any statement she made would be taken down in writing and might be used in evidence. He said that she then dictated a statement which he took down in writing. He said that when the statement was concluded, he told her he was going to read it over to her and that she could make any additions or alterations she wished. He said that he then read the statement over to her and that she made one alteration and one addition. He said that she initialled the addition and also initialled the bottom of page one. She then said the statement was correct and he noted that in the statement. He said that he invited her to sign it but she declined.
Sergeant Tuohy in cross-examination denied that while the applicant was being interviewed there was a good deal of noise coming from another office where somebody else was being interviewed. He also denied that there was an intimidating atmosphere in the Garda Station. It was also suggested to him that, while the applicant was being interviewed by Garda Walsh on the evening she was brought to the station, he (the witness) entered the room and found that she had been required by Garda Walsh to take her shoes off, and that he (the witness) said to him "this is not Castlereagh, It's Castlebar." This suggestion was denied by the witness, as was the suggestion also put to him that the alleged statement was taken in the form of questions and answers.
Garda Walsh said that he took the applicant to the Detective Branch Office in the station at 10 p.m. on December 21st. He told her that he was investigating the armed robbery and false...
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