DPP v Moore

 
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1978 WJSC-CCA 873

COURT OF CRIMINAL APPEAL

Finlay, President

Griffin, J.

Costello, J.

(29/30-1978)
D.P.P. v. MOORE
THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
WILLIAM THOMAS MOORE
THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
BRENDAN O'SULLIVAN
1

Judgment delivered by Finlay P. on the 29th day of May 1979

2

These are two applications for certificate of leave to appeal sought by William Thomas Moore and Brendan O'Sullivan.

3

Each of the applicants was on the 14th of April 1978 at a joint trial convicted of the murder of one James Joseph Hanlon on the 12th of December 1977.

4

On the application of Counsel for each of the applicants their applications for certificate of leave to appeal were jointly heard before this Court. The Court having reserved judgment in these applications will rule upon them in a single judgment dealing of course separately with the cases of each of the applicants.

Grounds of Appeal of William Thomas Moore
5

The grounds of appeal on behalf of William Thomas Moore which were relied upon at the hearing were as follows:-

6

1. That the learned trial Judge erred in law in failing to direct that a reference in the statement made by the accused to a file which had been in the accused's possession as one used for breaking open cars to be edited out of the statement on the grounds that its retention portrayed the accused as a bad character.

7

2. That the learned trial Judge erred in law in directing the jury in the course of his charge that the presumption that a person intended the natural consequences of his acts had any application to the case on the basis that the real question for determination by the jury was whether the prosecution had established that the accused did not believe that the deceased James Hanlon was dead when the sheet was pulled round his neck.

8

3. That the learned trial Judge erred in holding that the accused was not in custody when he made his written statement.

9

4. Alternatively that the learned trial Judge erred in finding that if the accused was in custody his custody was lawful.

10

5. That the learned trial Judge erred in holding that the Gardai were entitled to refrain from bringing the accused before the District Court prior to the time at which he made his statement.

11

6. That the learned Trial Judge erred in admitting into evidence verbal statements made by the accused.

GROUNDS OF APPEAL OF BRENDAN O'SULLIVAN
12

The grounds of appeal relied upon at the hearing on behalf of the applicant Brendan O'Sullivan were as follows:-

13

1. That the learned trial Judge erred in holding that the applicant was not in custody at the time of the making of an alleged written statement.

14

2. That the learned trial Judge erred in holding that if the applicant was in custody such custody was not unlawful.

15

3. That the learned trial Judge erred in holding that the Gardai were entitled in law to refrain from bringing the applicant before the District Court at a time prior to the making of a written statement by him.

Facts established common to the case of both applicants
16

The facts proved in evidence common to the case of both the applicants were that on the 12th of December 1977 a member of the Garda Siochana observing at 14 Henrietta Street what appeared to be drops of blood leading from the doorway of that house entered the house and investigated the matter and found a young man named James Hanlon dead in a flat downstairs in the house. Shortly speaking the general position then found was that there were signs of an extensive fight and damage to property in the room, there were large quantities of blood and blood stains found in the room and on subsequent examination the State Pathologist ascertained that the deceased prior to his death had received a large number of stab wounds in the face and on the body but had died in his opinion from suffocation caused by tightening of cloths around his neck.

17

Between the 12th and the 19th of December 1977 the Garda Siochana arrested a man who was not before the Court on this trial and has not yet been tried on suspicion of involvement in the death of James Hanlon and obtained from him a statement purporting to incriminate each of these applicants as having been involved in the incidents leading to the death of James Hanlon with him. Having obtained this statement the Garda Siochana were anxious to find and interview each of the applicants.

18

On the 19th day of December at approximately 2.25 p.m. the applicants who were walking together in Church Street were encountered by a member of the Garda Siochana on duty in that street. They accompanied this member of the Garda Siochana together with other members in a Garda car a short distance to the Bridewell Station and on arrival at the Bridewell Station the applicants were separated and each was interviewed and questioned by members of the Garda Siochana in a separate room. The applicant Moore made a written statement after caution giving an account of the events immediately preceding the death of James Hanlon in which he admitted to a part in the tightening of cloths on his neck asserting that at the time he believed he was already dead. The statement which followed upon an oral statement much to the same effect was completed at approximately 4.25 p.m. The applicant O'Sullivan made a similar written statement after caution having read the statement made by the other person who had previously been arrested who was not before the Court and having also read the statement made by the applicant Moore and this written statement concluded at approximately 6.15 p.m.

Evidence concerning the statement made by William Moore
19

The evidence of the Garda Siochana was to the effect that William Moore upon being encountered in Church Street on the 19th of December was asked if he was prepared to go to the Garda Station at the Bridewell and said that he was and that he went there voluntarily, that he was subsequently interviewed in the first instance giving an account of his movements on the night of the death of James Hanlon which was exculpatory subsequently making an oral statement in much the same terms as the written statement eventually made by him and finally making a written statement. The Garda evidence was to the effect that at no time did he ask to leave the Garda Station and that he was not being detained against his will. A number of Gardai witnesses stated that if he had asked to leave they would have consulted their superior officers for a decision as to whether to arrest him.

20

Moore gave evidence that he was arrested in Church Street and brought to the Bridewell against his will; that he believed that he was at all times in custody and not free to go, but did not suggest that he asked to leave. He also stated that his presence in Church Street was due to the fact that he and O'Sullivan were hoping to contact a Solicitor with the intention of going with him to the Gardai and making a statement exculpating themselves from accusations which they believed the man already arrested had made against them.

Evidence with regard to the statement made by the applicant O'Sullivan
21

The applicant O'Sullivan according to the Garda evidence accompanied the applicant Moore and the members of the Garda Siochana at their request to the Bridewell Station. He was then interviewed by a number of members of the Gardai and at the commencement of this interview said that he had nothing to say. He asked if he could see a solicitor but according to the Garda evidence upon being asked who his solicitor was made no reply. Later on in a series of interviews one of the Garda Officers questioning him was reading to himself from the statement made by the man previously arrested and according to his evidence O'Sullivan asked to read it which he did. He subsequently was shown and read a statement which had been made by the applicant Moore. He then requested to see Moore, Moore was brought to the room, O'Sullivan asked him had he told the truth and Moore said that he had and advised him to do the same. The applicant O'Sullivan according to the Garda evidence then after caution made a statement in writing which he signed and which was witnessed and which concluded at approximately 6.15 p.m. Prior to the conclusion of this statement the Gardai said that a message having been received by Mr. McCartan solicitor that O'Sullivan was asked whether he wanted to see Mr. McCartan the solicitor and he said no. The evidence of O'Sullivan was that he had been arrested in Church Street. He agreed that his presence there was due to the fact that he and Moore had an arrangement to meet a solicitor who he later discovered to be Mr. McCartan but whose name he did not know at that time with the intention of going to the Bridewell Garda Station and making statements concerning what they believed to have been a statement made by the man previously arrested incriminating them. O'Sullivan denied that when he was told that a Mr. McCartan had communicated with the station he was informed that he was a solicitor. He further stated that his belief was that he was in custody and that he was at no time free to go and he instanced that on requesting to go to the lavatory on two separate occasions he was on each occasion accompanied by two Guards to the lavatory and the door of it was left open. He did not...

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