DPP v Murphy

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Kearns J.
• Judgment Date: 21 January 2005
• Neutral Citation: [2005] IECCA 1
• Date: 21 January 2005
• Docket Number: [C.C.A. No. 25 of

[2005] IECCA 1

THE COURT OF CRIMINAL APPEAL

Kearns J.

MacMenamin J.

Clarke J.

[C.C.A. No. 25/2002]

DPP v MURPHY

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR/RESPONDENT

AND

COLM MURPHY

DEFENDANT/APPELLANT

EXPLOSIVES SUBSTANCES ACT 1883 S3

CRIMINAL LAW (JURISDICTION) ACT 1976 S4

OFFENCES AGAINST THE STATE ACT 1939 S44

DPP v MADDEN 1977 IR 336 111 ILTR 117

OFFENCES AGAINST THE STATE ACT 1939 S52

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S10

CRIMINAL JUSTICE ACT 1984

R v LATIMER 1992 NI 45

R v ARMSTRONG RICHARDSON HILL & CONLON (THE GUILFORD FOUR CASE) COURT OF APPEAL (CRIM DIV) 19.10.1989

R v MCILKENNY & ORS (THE BIRMINGHAM SIX CASE) 1991 93 CR APP R 287

R v SILCOTT RAGHIP & BRAITHWAITE (THE BRAODWATER FARME CASE) COURT OF APPEAL (CRIM DIV) 5.12.1991

R v GALBRAITH 1981 1 WLR 1039

DPP v GILLIGAN UNREP SPECIAL CRIMINAL COURT 5.3.2001

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(F)

HALSBURY LAWS OF ENGLAND 1990 4ED VOL 11(2) 1074

REX v BASKERVILLE 1916 2 KB 658

AG, PEOPLE v WILLIAMS 1940 IR 195

DPP v CONNOLLY 2003 2 IR 1

AG v STEPHEN 1934 1 FREWEN 12

AG, PEOPLE v HAVLIN 1952 1 FREWEN 132

AG, PEOPLE v GOULDING 1964 1 FREWEN 292

AG, PEOPLE v MOHANGI 1964 1 FREWEN 297

DPP, PEOPLE v CULL 1980 2 FREWEN 36

AG v DOYLE 1943 1 FREWEN 39

DPP v FERRIS UNREP CCA 10.6.2002 2002/9/2061

SAPPORO MARU (OWNERS) v STATUE OF LIBERTY (OWNERS) 1968 1 WLR 739 1968 2 ALL ER 195

CRIMINAL (EVIDENCE) ACT 1992 S5(1)

R v WOOD 1982 76 CR APP R 23

CASTLE CROSS 1985 1 ALL ER 1984 WLR 1372

R v SPIBY 1990 91 CR APP R TLR 16/03/1990

R v GOVERNOR OF BRIXTON PRISON EX PARTE LEVIN 1997 AC 741 1997 3 WLR 117 TLR 21/6/1997

INTERCEPTION OF POSTAL PACKAGE & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S13(2)I

NTERCEPTION OF POSTAL PACKAGE & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S10(4)

INTERCEPTION OF POSTAL PACKAGE & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S10(5)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(2)(b)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(3)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(2)(1)

CRIMINAL EVIDENCE ACT 1992 S5(3)(c)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98(2)(a)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S2(1)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S10(1)(b)

SCOTTISH CO-OPERATIVE WHOLESALE SOCIETY LTD v MEYER 1959 AC 324

DHN FOOD DISTRIBUTORS LTD v TOWER HAMLETS LBC 1976 WLC 852

REVLON INC v CRIPP & LEE LTD 1980 FSR 85

LAC MINERALS v CHEVRON CORPORATION OF IRELAND 1995 1 ILRM 161

DESMONG & GLACKIN (NO 2) 1993 3 IR 67

KENNEDY v IRELAND 1987 IR 587 1988 ILRM 472

KELLY ON THE CONSTITUTION 4ED 1441

MALONE v UK 1985 2 EHRR 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

INTERCEPTION OF POSTAL PACKAGE & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S8

INTERCEPTION OF POSTAL PACKAGE & TELECOMMUNICATIONS (MESSAGES) REGULATION ACT 1993 S9

CRIMINAL PROCEDURE ACT 1993 S10(1)

CRIMINAL PROCEDURE ACT 1993 S10(2)

MAY CRIMINAL EVIDENCE 2ED 330

CREDLAND v KNOWLER 1951 35 CR APP R 48

O'MAHONY v BALLAGH 2002 2 IR 410

HOLLAND, STATE v KENNEDY 1977 IR 193

AG, PEOPLE v MCGLYNN 1967 IR 232

R v CORCORAN 1993 CRIM LR 48

CRIMINAL LAW:

Evidence

Admissibility - Discretion of trial judge to exclude evidence - Admissions made by accused - Alteration of notes of garda interview - Whether surviving garda evidence admissible - R v Latimer [1992] NI 45; R v Armstrong (Unrep, English CA (Crim Div),19/10/1989); R v Mcllkenny [1992] 2 All ER 417 and R v Silcott (TLR, 9/12/1991)considered and R v Galbraith [1981] 1 WLR 1039 followed - Whether onus on trial judge to direct acquittal of accused - Whether evidence of previous convictions admissible as corroborative of guilt of accused - R v Baskerville [1916] 2 KB 658 and People (AG) v Williams [1940] IR 195 followed; AG v Stevens [1934] 1 Frewen 12; People (AG) v Havelin (1952) 86 ILTR 168; People (AG) v Goulding [1964] Ir Jur Rep 54; People (AG) v Mohangi [1964] 1 Frewen 297; People (DPP) v James Cull [1980] 2 Frewen 36; People(AG) v Doyle (1943) 75 ILTR 194 and People (DPP) v Ferris (Unrep, CCA, 10/6/2002) applied - Whether telephone records admissible as real evidence - The Statue of Liberty [1968] 1 WLR 739; R v Wood (1982)76 Cr App R 23; Castle v Cross [1984] 1 WLR 1372; R v Spiby (1990) 91 Cr App R 186; R v Governor of Brixton Prison, exp Levin [1997] AC 741 and R v Cochrane [1993] Crim LR 48 followed - Corroboration - Non jury trial - Admissions made by accused - Nature of corroboration - Credland v Knowler (1951) 35 Cr App R 48 followed - Criminal Procedure Act 1993 (No 40), s 10 - Conviction quashed and retrial ordered (25/2002 - CCA - 21/1/2005)[2005] IECCA 1, [2005] 2 IR 125

People (DPP) v Murphy

the applicant was convicted by the Special Criminal Court of conspiracy to cause the Omagh bombing contrary to section 3 of the Explosive Substances Act 1883. He applied for leave to appeal that conviction pursuant to section 44 of the Offences Against the State Act 1939 on the grounds, inter alia, that the Special Criminal Court ruled incorrectly as to the legality of his arrest and subsequent detention and wrongly admitted evidence of interview notes and of alleged utterances by him; that the Special Criminal Court failed to either grant a direction or acquit the accused when there was evidence before it that police witnesses had altered notes of written interviews and had lied under oath, and; that the Court breached his entitlement to a presumption of innocence by having regard to inadmissible evidence of previous convictions.

Held by the Court of Criminal Appeal in setting aside the appellant's conviction and directing a retrial that the Special Criminal Court had a duty to evaluate in an extra critical fashion and be very alive to the possible contamination of remaining garda evidence when it came to light during a criminal trial that other garda evidence was tainted and perjured. Moreover, the Special Criminal Court had a duty to explicitly state on the face of the judgment that it was so doing. The Court of Criminal Appeal could not make findings as matters of probability about police evidence which were based on speculation and not on evidence. A conviction would also be unsafe where evidence of the accused's previous convictions had been improperly introduced during the trial.

Reporter: P.C.

1 JUDGMENT of the Court delivered on the 21st day of January, 2005 by Kearns J.

2 The accused herein was on 22 ^nd January, 2002, convicted of conspiracy to cause an explosion of a nature likely to endanger life or cause serious injury to property contrary to s. 3 of the Explosives Substances Act, 1883, as substituted by s. 4 of the Criminal Law (Jurisdiction) Act, 1976, and was sentenced to fourteen years' imprisonment. Having been refused leave to appeal by the trial court, he now applies by way of appeal for leave to appeal to the Court of Criminal Appeal pursuant to s. 44 of the Offences Against the State Act, 1939.

3 Shortly after 3 p.m. on Saturday, 15 ^th August, 1998, a massive car bomb exploded at Market Street, Omagh, County Tyrone, Northern Ireland, which resulted in the deaths of 29 people and injuries of varying degrees of severity to over 300 others. In addition extensive damage was done to property in the town centre.

4 The trial court described the outrage as the worst atrocity in Northern Ireland since 1969. It occurred at a time when the town was crowded with shoppers and visitors. Telephone warnings had been given shortly before the explosion, but the location of the car bomb was wrongly stated in the warnings, in consequence of which people were moved from the area where the bomb was stated to be to the other end of the town where in fact, unknown to the police, the bomb was situated and duly exploded.

5 The prosecution case was to the effect that the car in which the bomb was placed had been stolen in Carrickmacross, Co. Monaghan, in the early hours of 13 ^th August, 1998, and was thereafter brought to Dundalk. Thereafter it was the prosecution case that the car was loaded with a substantial quantity of explosives to which was attached a detonating device thereby constituting a large bomb which was driven from the vicinity of Dundalk to Omagh via Castleblayney and Aughnacloy on the day of the explosion.

6 It was part of the prosecution case that, two weeks earlier on 1 ^st August, 1998, another large car bomb of a similar nature, which had been placed in the same type of vehicle, exploded in Banbridge, Northern Ireland, causing widespread injury and damage, but fortunately no fatalities. It was further part of the prosecution case that the same code-word was communicated by way of warning prior to the detonation of the car bombs in each case.

7 The prosecution further contended that on Friday, 14 ^th August, 1998, the day before the Omagh bombing, the accused, who has a building contracting business, borrowed a mobile phone from his foreman, Patrick Terence Morgan, adopting a subterfuge as to the purpose for so doing, and gave that mobile and his own mobile phone to one Seamus Daly, described by the court as a dissident republican terrorist, in Dundalk on that date.

8 In the course of admissions alleged to have been made by the accused in the course of garda interviews after arrest, it is alleged that the accused admitted so doing for the purpose of assisting Daly to move explosives to Northern Ireland for the purpose of bombing targets there. This evidence was contained in a note of oral information, including admissions, alleged to have been given and made by the accused in the course of being interviewed by Detective Garda Hanley and Detective Sergeant McGrath while in detention at...