DPP v Power
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,Charleton J. |
| Judgment Date | 28 May 2019 |
| Neutral Citation | [2019] IESCDET 109 |
| Court | Supreme Court |
| Date | 28 May 2019 |
[2019] IESCDET 109
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
O'Donnell J.
McKechnie J.
Charleton J.
RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 24 th April, 2018 |
| DATE OF ORDER: 24 th April, 2018 |
| DATE OF PERFECTION OF ORDER: 5 th November, 2018 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 30 th November, 2018 AND WAS IN TIME. |
This determination concerns a decision of the Court of Appeal made on 24 April 2018; [2018] IECA 119 in an appeal from a conviction of murder of Maurice Power, the accused, before the Central Criminal Court on 5 June 2014. The Court of Appeal upheld that conviction.
The victim of the murder was Shane Rossiter. He was shot on 17 October 2012 emerging from a social gathering. As to the circumstances of the actual killing, that is not immediately clear from the papers. A witness had seen a gun barrel protruding from a car window because he had left a few moments before and when the victim came out, there was single shot. In fact, though the witness heard one shot and then dialled 112/999, there had been two shots.
There was some evidence about the Audi A4 car being seen at a petrol station some hours before and that car was later found burnt out in an isolated location. Some connection is sought to be drawn between that car and the murder and to link that with the accused. That is at the moment unclear. What is clear is that the prosecution case depended very largely on the confession statements of the accused made in Garda custody on dates between 11 and 15 December 2012 at Clonmel Garda Station.
There are two points sought to be raised. The first relates to the extension of the detention of the accused by a judge of the District Court under s 50(3)(g) of the Criminal Justice Act 2007. This was a third extension. Other extensions had been made by senior Garda officers and the third was judicial.
The point of appeal crucial to the Court of Appeal decision was that it was ruled that this detention could only be challenged by judicial review. The relevant portion of the decision is from paragraph 82 onwards. It is significant from the point of view of the possible application of the proviso that the trial judge accepted that there was no evidential deficit and that the accused was represented and could, if he wished, have raised the point that the accused had begun to confess at the time of this third extension. However, the central ruling is about the trial judge not having jurisdiction where there is a judicial intervention. We quote:
82. The trial judge's ruling in that regard was as follows:
‘The final argument advanced on behalf of the accused, and I suppose it's an alternative argument to the argument at 3, was that the further detention authorised by the District Court in Cashel at 5.02 pm on the 13th of December 2012 was invalid because the District Justice was not informed that the detainee had begun to make admissions, and therefore he did not have a complete account of what had happened during the course of the detention. Counsel for the accused submits that it's not clear, we don't know why Inspector -- Chief Superintendent Roche who was making the application wasn't aware of the fact of the admissions. And he did concede that were he aware he would have told the Court. But looking again at the chronology of the events, the admissions were made at an interview which concluded at 13.40. It is highly likely that the preparatory notes for Chief Superintendent Roche's application were prepared in advance of that. And the suggestion that something different might have happened were the fact of the -- the fact that Mr Power had begun to make admissions then made known to the judge is not clear to the Court. Clearly, even in the event of admissions being notified to the Court, there were still investigations to be carried out, and in fact the case submitted by counsel for the prosecution, the People at the suit of the Director of Public Prosecutions v. Terence O'Toole and James Hickey [1990 WJSC-CCA 1662] makes that very clear, where it is said at page 39: ‘The Court rejects the submission that once an accused has made a statement involving himself directly or indirectly in the crime for which he is charged, that that fact necessarily concludes that there is no necessity for his further detention for the proper investigation of the offence. It is not only the right but also the duty of gardaí investigating the crime of murder to fully investigate all the circumstances in an effort to establish all the facts relevant to the crime and to the guilt or innocence or the person or persons accused of that crime. The taking of statements, whether exculpatory or inculpatory is only a part of an investigation. But in the opinion of this Court is most certainly not a full and proper investigation of the offence.’ So, the Court is not persuaded that the furnishing of this information to the District Court would make a material difference to the order made by that Court. And the Court also notes that during the course of this hearing the accused was present at all times and he was represented by Mr Hayes, solicitor, who apparently cross-examined on --...
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