DPP v Murphy
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Susan Denham |
| Judgment Date | 12 July 2001 |
| Neutral Citation | 2001 WJSC-CCA 2065 |
| Court | Court of Criminal Appeal |
| Date | 12 July 2001 |
2001 WJSC-CCA 2065
THE COURT OF CRIMINAL APPEAL
Denham J.
Johnson J.
O'Neill J.
Citations:
CRIMINAL JUSTICE ACT 1984 S11
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 S12(11)
CRIMINAL JUSTICE ACT 1984 S7(3)
DPP V CONNELL 1995 1 IR 244
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 S12(4)
DPP V REDDAN & HANNON 1995 3 IR 560
LENIHAN, DPP V MCGUIRE 1996 3 IR 586
DPP V SPRATT 1995 1 IR 585
O'REILLY, STATE V WINDLE & GOVERNOR OR MOUNTJOY PRISON UNREP BLANEY 4.11.1986 1986/7/1469
HEALY, STATE V DONOGHUE 1976 IR 325
Synopsis:
Criminal Law
Criminal; applicant seeks leave to appeal against his conviction on charges of burglary and theft of a car; whether there had been sufficient evidence for trial judge to conclude that accused had not been under the influence of drugs at the time of his confession; whether a breach of regulations had taken place; whether accused had suffered prejudice as a consequence of the breach; whether there are factors additional to the breach of regulations which had rendered the statement inadmissible; whether the trial had been fair and just; whether probative value of fact that Gardaí knew the applicant and his nickname outweighed by prejudicial effect of that evidence on the jury; whether fact that trial judge's charge had recited evidence not before jury is to applicant's detriment; whether prosecution had unfairly embarrassed the defence before the jury; s. 12 (11), Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987; s. 7, Criminal Justice Act, 1984;
Held: Application for leave to appeal treated as appeal; appeal dismissed; conviction confirmed.
DPP v. Murphy - CCA: Denham J., Johnson J., O'Neill J. - 12/07/2001
The applicant sought leave to appeal against his conviction on various offences including burglary and theft. The applicant had been convicted mainly on the basis of identification and confession evidence. The applicant was sentenced to five years imprisonment which was imposed consecutively as the applicant was on bail at the time. The applicant set out a number of grounds of appeal. The applicant claimed that a statement given whilst in custody, was given while he was under the influence of drugs and was improperly admitted by the trial judge. In addition the applicant claimed that the statement was made in breach of the 1987 custody regulations. The applicant also complained in regard to other rulings made by the trial judge. Mrs. Justice Denham held that the court saw no reason to interfere with the decision by the trial judge to admit the statement. The breach of regulations which had resulted in a gap in the recorded notes was not sufficient to render the applicant’s statement inadmissible. The application was dismissed and the conviction confirmed.
Mrs. Justice Susan Denham on Thursday, 12th July, 2001.
The applicant seeks leave to appeal against his conviction before Cork Circuit Criminal Court on 15th February, 1999. This is an application arising from a conviction in a criminal trial held in Cork Circuit Criminal Court on 10th, 11th, 15th and 16th February, 1999. The applicant was arraigned and pleaded not guilty to sixteen counts on an indictment. All the charges related to alleged offences which had occurred in the early hours of 15th March, 1998 and included burglary from two retail premises, interference with a number of cars, the theft of certain items from those cars and the taking, without consent, of a Ford Fiesta car. The offences were alleged to have taken place in an area around Blarney in north County Cork.
The Director of Public Prosecutions relied on two main pieces of evidence: the identification of the applicant by two members of An Garda Siochana and a confession made by the applicant in custody later that day. The two Gardai in question, Garda Patrick FitzGerald and Garda Michael Dineen, claimed to have seen the applicant as he escaped from the stolen car, and they both claimed that they recognised him. The also stated in evidence that the applicant emerged from the driver's side of the car while John O'sullivan, who did not escape, emerged from the passenger side of the car.
The defence case was that the applicant had been at home with his girlfriend on the night in question. He gave this evidence himself and was supported in it by his girlfriend, Jacqueline Russell and the passenger in the car, John O'Sullivan also gave evidence that he had in fact been the driver of the car and that he had pleaded guilty to that charge. This was contested by the prosecution. The applicant gave evidence that he had no recollection of making the confession and that he was under the influence of drugs at the time of the making of the confession.
An application by the defence to the trial judge to exclude the confession was refused by His Honour Judge Patrick Moran and on 15th February, 1999 the jury found the applicant guilty on twelve of the sixteen counts on the indictment. On 16th February, 1999 the applicant was sentenced to five years imprisonment. As the offences were committed while the applicant was on bail the learned trial judge directed that the sentence would run consecutively to the sentence the applicant was serving at the time, as required by s. 11 of the Criminal Justice Act, 1984, as amended. The learned trial judge granted a review of the sentence imposed thirty months after the commencement of the said sentences.
The applicant has appealed against his conviction on the following grounds:
1. That the learned trial judge erred in law and in fact in admitting the alleged statement of the applicant as evidence before the jury in that the said alleged statement could not be relied upon as it was made when the applicant was under the influence of drugs.
2. That the learned trial judge erred in law and in fact in admitting the alleged statement of the applicant as evidence before the jury in that the said alleged statement was made after a breach of section 12(11) of the Criminal Justice Act, 1984(Treatment of Persons in Custody in Garda Siochana Station) Regulations 1987, ( S.I. No. 119 of 1987.)
3. That the learned trial judge erred in law in allowing the applicant to be referred to by counsel for the prosecution witnesses as Philip "Bomber" Murphy.
4. That the learned trial judge erred in law in allowing Garda prosecution witnesses give evidence that they knew the applicant well.
5. That the learned trial judge recited as evidence in his charge a matter which had not been given in evidence to the jury, namely that on fingerprints had been found at the crime scenes or on the items recovered.
6. That the prosecution called evidence that John O'Sullivan had pleaded guilty to allowing himself to be carried in motor vehicle registration number 242 EZB although the warrant of execution against him recites that he did drive the said motor vehicle, thereby unfairly embarrasing the defence before the jury.
Mr. Donal T. McCarthy S.C., counsel for the applicant, presented written and oral submissions on behalf of the applicant. Mr. Ray Boland B.L., counsel on behalf of the Director of Public Prosections, presented written and oral submissions on behalf of the prosecution.
Ground 1: That the learned trial judge erred in law and in fact in admitting the alleged statement of the applicant as evidence before the jury in that the said alleged statement could not be relied upon as it was made when the applicant was under the influence of drugs.
It was submitted that the learned trial judge erred in fact and in law in refusing the defence application to exclude the confession on the basis that it could not be relied upon as it was made when the applicant was under the influence of drugs. This contention is grounded on issues of fact. There was evidence as to the state of the applicant during the course of his arrest and custody upon which the learned trial judge could reach the conclusion of fact which he did. For example, Detective Garda Denis O'Shea gave evidence that the applicant was and seemed normal. He stated, on 11th February, 1999, in answer to Questions 76 and 77, which questions raised the matter of dependency on drugs:
| "76. | Mr. Boland: Would you have known that he was dependent on drugs at the time. |
| -No my Lord, I wouldn't class Philip Murphy as having been dependent on drugs at the time. | |
| 77. | Well, he will give evidence in relation to the statement issue that he was dependent on various prescription and non-prescription drugs. You are not in a position to comment on that one way or the other? |
| - I have known Philip Murphy for a good number of years, my Lord. I have dealt with him on a number of occasions in the past. His condition on 15th of March was no different to his condition on other occasions on which I dealt with him and that condition was normal, my Lord." |
There was extensive evidence given as to the applicant's condition and the observations made of him on the day in question. It is unnecessary to set it all out in detail in this judgment. It was opened to the Court in submissions and the Court has had an opportunity of reading the transcripts. There was evidence before the learned trial judge and upon that evidence he held on 11th February, 1999, at p. 88 of the transcript:
"Insofar as the first point is concerned as to the condition of the interviewee of the accused on this particular morning and afternoon, he had been arrested by Detective Sergeant O'Shea who knew him and who interviewed...
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