DPP v P.A.
| Jurisdiction | Ireland |
| Judgment Date | 21 February 2008 |
| Date | 21 February 2008 |
| Docket Number | Record No. CCA162/07 |
| Court | Court of Criminal Appeal |
COURT OF CRIMINAL APPEAL
Finnegan J.
Herbert J.
Gilligan J.
Record No. CCA162/07
Criminal law - Evidence - False statement to Gardai - Whether involuntary - Fair procedures - Length of interview - Treatment in questioning - Non-compliance with electronic recording provisions - Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997
Facts: The applicant was charged with making a false statement contrary to s. 12(a) of the Criminal Law Act 1976, as to alleged sexual abuses. He later alleged that his interview was not voluntary because of a number of circumstances, including the presence of his mother, alleged abuse by Gardai, excessive questioning and noncompliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations, 1997. The trial judge had found no evidence of foul play by the Gardai and had rejected the claims made.
Held by the Court of Criminal Appeal (per Finnegan J.), that the applicant had not advanced adequate grounds. The trial judge had not accepted the assertions made as well-founded. Any failures alleged did not render the evidence admissible. He had been adequately treated in questioning, for example, food had been provided. The proceedings would be dismissed.
Reporter: E.F.
Judgment of the Court delivered on the 21st day of February 2008 by Finnegan J.
The applicant was charged with one count of an offence of making a false statement, contrary to section 12(a) of the Criminal Law Act 1976. The particulars of the offence are that on the 18th June 2003 at Kevin Street Garda Station Dublin he knowingly made a false statement to Detective Garda Brian Kavanagh tending to show that offences of indecent assault and buggary had been committed by a male person during the approximate period of February and May 1981.
The Criminal Law Act 1976 section 12 provides as follows:
"12. Any person who
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(a) knowingly makes a false report or statement tending to show that an offence has been committed, whether by himself or another person, or tending to give rise to apprehension for the safety of persons or property, or
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(b) knowingly makes a false report or statement tending to show that he has information material to any inquiries by the Garda Siochána and thereby causes the time of the Garda Siochána to be wastefully employed,
shall be guilty of an offence and shall be liable
on summary conviction, to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months, or to both, or
(ii) on conviction on indictment, to imprisonment for a term not exceeding five years."
On the 27th April 2003 the applicant made a complaint that he had been sexually abused by a priest. He made a formal statement on the 18th June 2003. The complaint was investigated by Detective Garda Brian Kavanagh and other Gardai and their investigation disclosed numerous discrepancies in details given by the applicant in his statement to the Gardai. These discrepancies were put to him at a cautioned interview on the 18th October 2003 but at that interview he maintained his complaint. On the 20th March 2004 the applicant was arrested at his parents house when five Gardai in all attended. Following his arrest he was taken to Kevin Street Garda Station. Two Gardai, Detective Garda Kavanagh and Detective Sergeant Walsh, remained behind at his parents' house and interviewed his mother who at that time was seriously ill. A statement had previously been taken from her and on this occasion a further statement was taken. At this time the applicant's mother was confined to bed, a bed having been made up for her on the ground floor of the house. Present throughout the interview was the applicant's sister C. A.
At Kevin Street Garda Station the applicant was advised of his rights and given Form C72S. He requested a solicitor, Mr Hanahoe. He telephoned Mr Hanahoe's office but not surprisingly this being a Saturday before 10 a.m. there was no answer: he was, however, advised of a mobile phone number which he could ring. He duly rang that number and left a message. Mr Hanahoe returned his call and spoke to the applicant but told him that he would not attend Kevin Street Garda Station.
Thereafter the applicant was interviewed on four occasions, the first, second and fourth interview being recorded on video. For the third interview there was no recording as the interview room in which the video
recording equipment was situate and the equipment itself were in use. The applicant denied the offence resolutely in the first two interviews but in the third interview conceded the same. In the fourth interview the entire notes of the third interview were read over to him and he did not demur from the same. Between the second and third interviews the applicant had a visit from his sister.
The trial commenced on the 14th May 2007 and continued until the 5th June 2007. The first five days were consumed by a voirdireconcerning the admissibility of the third interview.
In short the submissions on behalf of the applicant on this application were that the third interview was not voluntary because of a number of circumstances which surrounded its conduct and these circumstances as summarised by senior counsel for the applicant are as follows:
1. The interview conducted with the applicant's mother on the day of his arrest and the applicant being told before the commencement of the third interview by his sister that his mother was greatly distressed during the same.
2. The applicant had never previously been involved with the Gardai.
3. At interview conducted with the applicant on the 18th October 2003, when the discrepancies in his statement were discussed, Gardai were verbally abusive to him and threatening. He was also threatened that his father and mother would go to prison for five years if he persisted in his complaint.
4. Interviews 1 and 2 were from 10.39 a.m. to 12.54 a.m. and from 2.12 p.m. to 5.20 p.m., a total duration of five hours fifty three minutes and that this was excessive.
5. Non-compliance with the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997.
The totality of these circumstances it was submitted amounted to oppression. Reliance was placed on dicta of Sachs J. (as he then was) in a note to Martin Priestly [1966]
"http:// 50.Cr.App.R.183"
50. Cr.App.R. 183 at 51 Cr.App.R.1.
"I turn to what was really the main theme of defending counsel's overall argument, that this was a case where the police had used oppression, or at any rate, if 1 may put it more exactly, that the prosecution had not disproved the allegation of oppression. Here it is convenient to refer to one short passage of what I said in Priestly. There I mentioned that I had not been referred to any authority on the meaning of the word "oppression" as used in the preamble to the Judge's Rules, nor would I venture on such a definition, and far less try to compile a list of categories of oppression, but, to my mind, this word in the context of the principles under consideration import something which tends to sap, and has sapped, that free will which must exist before a confession is voluntary … Whether or not there is oppression in any individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and the characteristics of the person who makes the statement. What may be oppressive as regards a child, an invalid or an old man or somebody inexperienced in the ways of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world."
The court has also been referred to a number of Irish authorities. In The People (D.P.P.) v Bernard McNally and Osgur Breathnach,Court of Criminal Appeal, 16th February 1981, Finlay P. said
"This court accepts with approval the description of oppressive questioning given by Lord McDermott in an address to the Bentham Club and adopted
by the criminal division of the Court of Appeal in England in
R. v Prager
[1972156 "http://Cr.App.R.151.In"Cr.App.R.151. In that address Lord McDermott described it as `questioning which by its nature, duration or other attendant circumstances (including the fact of custody) excites hope (such as the hope of release) or fears, and so affects the mind of the subject that his will crumbles when he speaks when otherwise he would have stayed silent.'
This court would adopt with approval the definition of "oppression" in the context of questioning contained in the note of the judgment of Sachs J. (as he then was) in 51 Cr. App. R.1 where he defined it as follows: "…to my mind this word in the context of the principles under consideration import something which tends to sap and has sapped that free will which must exist before a confession is voluntary…”
Again the court was referred to Shaw v The People (Director of Public Prosecutions) [1982] I.R. 1. In that case in his judgment Griffin J said:
"Since the admissibility of such statements is directly in issue in this case, 1 think it proper and desirable to express an opinion as to the correct approach to the question of admissibility of such statements. Before such statements are admissible, two conditions must be satisfied by the prosecution.
The primary requirement is to show that the statement is voluntary, in the sense in which that adjective has been judicially construed in the decided cases....
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