DPP v O'Neill

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 16 March 2007
• Neutral Citation: [2007] IECCA 8
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 100 of 2006]
• Date: 16 March 2007

[2007] IECCA 8

COURT OF CRIMINAL APPEAL

Kearns J.

Dunne J.

MacMenamin J.

[CCA 100/06]

DPP v O'NEILL

Director of Public Prosecutions

RESPONDENT

V

Michael o'neill

Applicant

DPP v MURPHY 2005 4 IR 504 2005 21 4345 2005 IECCA 52

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998 16 5907

DPP v CLARKE 1994 3 IR 289 1995 1 ILRM 355 1995 7 2083

R v DUNCAN 1981 73 CAR 359

DPP,PEOPLE v SHAW 1982 IR 1

Abstract:

Criminal law - Appeal - Evidence - Whether a statement could be severed so as to exclude inculpatory portions but preserve and admit into evidence those parts of the statement that could be regarded as exculpatory.

The applicant sought leave to appeal his conviction of rape on the grounds that the learned trial judge erred in law in excluding all the contents of a memorandum of interview of the accused in circumstances where objection had only been taken to the admissibility of part of the memorandum of interview.

Held by the Court of Criminal Appeal (Kearns, Dunne, MacMenamin JJ) in refusing the application for leave to appeal: That once the trial judge reached the conclusion that the entire interview process was tainted, the learned trial judge was correct to exclude the entirety of the interview.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Kearns delivered on the 16th day of March, 2007 .

2 The applicant was convicted of rape on the 8th April, 2006 following a trial in the Central Criminal Court and was thereafter sentenced to eight years imprisonment by Carney J. on 22nd May, 2006. Leave to appeal was refused by the learned trial judge and the present application for leave is based on a single ground, namely, that the learned trial judge erred in law in excluding all the contents of a memorandum of interview of the accused in circumstances where objection had only been taken to the admissibility of part of the memorandum of interview.

3 The evidence at trial was that the complainant, who in March, 2004 was aged 18 years, lived with her family in a housing estate in Kildare. She and the accused knew each other well, having grown up and resided in close proximity to each other. The sister of the applicant was a close friend of the complainant. On Saturday 6th March, 2004 the complainant and the accused were socialising in various pubs around Kildare town with their friends. They met during the evening in one of the bars and kissing took place. It seems this was the first time that any degree of intimacy had occurred between the couple. In the early hours of the 7th March, 2004, the complainant and the applicant walked home together towards their respective homes in Kildare town. Their route took them past Saint Bridget's Park. The couple entered the park where an act of sexual intercourse ensued.

4 On 8th March, 2004, the complainant made a complaint to the gardaí that she had been raped by the applicant.

5 On the same day, Garda Karen Pound and Garda Pat Dooner of Kildare Garda Station called to the applicant's home in Kildare to interview the applicant regarding the matters alleged by the complainant. A memorandum of the interview was recorded by Garda Pound in her notebook. In the course of this interview, the accused was asked a series of questions about the events of the previous evening. In the course of the interview, the applicant admitted having had sexual intercourse on a consensual basis with the complainant for a short period until the complainant asked him to desist. In the latter part of the interview, however, the applicant admitted that he raped the complainant. The evidence of the garda officers was that the applicant was then told he would have to come to the garda station to make a full cautioned statement. The applicant elected to go with the gardaí to the station where he made a signed cautioned statement admitting rape. Carney J ruled that as the statement made in the garda station had not been video-taped, he could not be satisfied that it was admissible having regard to decisions of this Court in Director of Public Prosecutions v. Michael Murphy [2005] 4 IR 504 and Director of Public Prosecutions (Ivers) v Murphy [1999] 1 I.R. 98.

6 Having succeeded in excluding the cautioned statement made in the garda station, counsel on behalf of the applicant then objected in the absence of the jury to the admissibility of portion of the interview which had taken place in the kitchen of the family home of the accused and which had preceded the visit to the garda station. It was argued on behalf of the applicant that this memorandum of interview had been obtained in an improper manner and in breach of his rights in that, inter alia, he had not been cautioned and it had not been read over to him before he signed it. No objection was raised by the defence to the admissibility of the earlier part of the memorandum of interview which was largely exculpatory.

7 In the voir dire hearing about the interview, the applicant gave evidence that at a certain stage of the interview the attitude or the demeanour of the two gardaí changed. He testified that Garda Dooner said he was dissatisfied with his responses and threatened that the applicant would be taken into custody unless he furnished answers which were to his (Garda Dooner's) satisfaction. The applicant stated that he would not have admitted to the rape except for the pressure he was put under by the gardaí. He also maintained that Garda Dooner had told him that CCTV footage existed which showed the applicant with the complainant on the night in question. Later enquiries by the applicant's solicitor, Connell Boyce, indicated that, following an enquiry made to the local garda superintendent, Mr Boyce had received a letter in reply from Supt Murphy confirming that no footage was in fact in garda possession. Mr Boyce gave evidence to this effect.

8 On behalf of the prosecution, Ms. Walley S.C. objected to the severance of the memorandum of interview arguing that the interview was either conducted in breach of the applicant's rights or it was not. If taken in breach of the applicant's rights, then all of the interview should be excluded. She characterised the application by counsel for the applicant as an exercise in cherry- picking in that he wished to exclude the incriminatory parts of the interview but get the benefit of the exculpatory portions. Counsel for the applicant had seen fit to put the exculpatory portions to the complainant in cross-examination before the jury. His decision thereafter to make objection to the interview before evidence about its contents was led by the prosecution - rather than at the point where it was alleged the...