DPP v Power

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] IESC 13
• Court: Supreme Court
• Docket Number: [Supreme Court Appeal No: 174/2018]
• Date: 03 April 2020

BETWEEN:

The People (At the Suit of the Director of Public Prosecutions)

PROSECUTOR/RESPONDENT

-AND-

POWER

ACCUSED/APPELLANT

[2020] IESC 13

Clarke C.J.

Kelly P.

Charleton J.

O'Malley J.

Irvine J.

[Supreme Court Appeal No: 174/2018]

THE SUPREME COURT

Conviction – Murder – Unlawful detention – Appellant seeking to appeal against conviction – Whether an extension of the appellant’s detention in garda custody by the District Court was lawful

Facts: The appellant, Mr Power, appealed to the Supreme Court against the decision of the Court of Appeal upholding the appellant’s conviction for murder: [2018] IECA 119. The issues in the appeal were grouped under three headings. The first substantive heading concerned the challenge to the lawfulness of an extension of the appellant’s detention in garda custody by the District Court, with a question raised in the judgment of the Court of Appeal as to whether or not it was legally possible to mount such a challenge in the course of a trial. The second related to s. 10 of the Criminal Procedure Act 1993. The section provides that where evidence of a confession is uncorroborated the trial judge should advise the jury to have due regard to that fact. The dispute between the parties centred on the circumstances in which the section is applicable, the interpretation of the word “corroboration”, and the appropriate direction to be given by a trial judge. Finally, the determination of the Supreme Court granting leave to appeal posed a question as to the application of s. 3(1) of the same Act, which permits an appellate court to dismiss an appeal against conviction notwithstanding a finding in favour of the appellant.

Held by the Court that when detention on foot of a warrant of this nature is challenged in a trial, it must be remembered that the trial judge is not acting as an appellate judge. The Court noted that the question was not whether the trial judge thinks that the right decision was made, or whether a different decision could have been made if additional information had been provided, but whether the decision made was lawful, such that the resulting detention was lawful. The Court held that so long as the decision was reasonable having regard to the evidence and submissions of the parties, the trial judge is entitled to hold that it was lawful. In the circumstances of this case, having regard both to the ample information put before the District Court and the authority of DPP v O’Toole and Hickey (unreported, Court of Criminal Appeal, 20th July 1990), the Court could see no basis for holding that the trial judge erred. Accordingly, the Court rejected that ground of appeal. The Court held that the judge’s charge to the jury is an exercise in communication; it should, therefore, avoid the use of technical language where possible, and where that is not possible clear explanations must be given that get across to the jury the nature of the task that is before them. In that context, the Court could see no difficulty with the approach of the trial judge in this case. She decided, in the Court’s view correctly, that this case was one in which a warning was appropriate, she informed the jury, correctly, that the case stood or fell on the confession, and she gave an appropriately worded explanation of the need to examine the other evidence, and in particular the evidence about the car, to see whether it confirmed the truth and reliability of the confession but made it clear that the jury were entitled to convict in any event provided they were satisfied beyond reasonable doubt that the confession was true.

The Court held that the appeal would be dismissed and that there was no requirement in this case to consider the applicability of the proviso.

Appeal dismissed.

JUDGMENT of Ms. Justice Iseult O'Malley delivered on the 3rd day of April 2020.

Introduction

1 This appeal is against the decision of the Court of Appeal upholding the appellant's conviction for murder (see The People at the Suit of the Director of Public Prosecutions v. Maurice Power [2018] IECA 119). Shane Rossiter was murdered in Golden, Co. Tipperary in the early hours of the 17th October 2012 by a man who came to his house in a car and shot him twice with a shotgun. The appellant was arrested on suspicion of murder and spent some four days in extended detention. Evidence was adduced in the trial that in the course of that detention he confessed to killing Mr. Rossiter.

2 The issues in the appeal can be grouped under three headings. Taking them in the order in which they arose in the trial, the first substantive heading concerns the challenge to the lawfulness of an extension of the appellant's detention in garda custody by the District Court, with a question raised in the judgment of the Court of Appeal as to whether or not it was legally possible to mount such a challenge in the course of a trial. The second relates to s.10 of the Criminal Procedure Act 1993. The section provides that where evidence of a confession is uncorroborated the trial judge should advise the jury to have due regard to that fact. The dispute between the parties centres on the circumstances in which the section is applicable, the interpretation of the word “corroboration,” and the appropriate direction to be given by a trial judge.

3 Finally, the determination of this Court granting leave to appeal posed a question as to the application of s.3(1) of the same Act, which permits an appellate court to dismiss an appeal against conviction notwithstanding a finding in favour of the appellant. However, it may not be necessary to consider this issue. If the Court considers that the detention was lawful and that the jury was appropriately charged, the question as to the proviso will not truly arise. On the other hand, the Director of Public Prosecutions accepts that the proviso should not be applied if the jury was materially misdirected in relation to the confession warning. Instead, the conviction should be quashed and a retrial ordered.

Relevant evidence

4 For the purposes of this appeal only a relatively short summary of the facts is required. A number of people had been present in Mr. Rossiter's house during the night of the 16th/17th October 2012. There was evidence that at some stage the appellant was contacted by phone and was asked to bring some cannabis to the house. At about 6.30 am on the 17th a car arrived and Mr. Rossiter, accompanied by another man, went outside. A gun was produced from inside the car and Mr. Rossiter was shot. The man with him ran away, and was not in a position to describe the gunman or the car. Mr. Rossiter was shot a second time and the car departed.

5 On the evening of the 17th October a car was seen on fire in the mountains. It turned out to be a black Audi A4. There was evidence that the appellant's former partner had given him the use of her black Audi A4 some months previously. Vehicle registration documentation indicated that it had been sold to a man in Waterford on the 16th October 2012 and the tax book had been sent to an address there. However, the address provided for the putative purchaser was in fact occupied by a woman who had never had any dealings with the car. No person of the name given in the documentation was traced. Witnesses described meeting the appellant on the afternoon of the 16th October and at about 2.30 am on the morning of the 17th. On each occasion he was driving a black Audi. There was also CCTV footage from a Tesco premises showing a man said to be the appellant putting fuel into a black Audi A4 on the evening of the 16th.

6 The appellant was, from the outset, one of a number of persons of interest to investigators, by reason of his past relations with Mr. Rossiter. He attended at a Garda station on the 18th October, on a voluntary basis, and was formally interviewed after caution and in the presence of his solicitor. He stated that he had spent the night of the 16th October and the morning of the 17th in his father's home.

7 A prosecution witness who lived near the appellant's father gave evidence that in the days after the murder a friend of the appellant called to her and asked her about her domestic security camera. After some discussion with him, she had a phone conversation with the appellant. She said that he told her that he wanted the chip from the system for his own “peace of mind”.

8 The appellant was arrested on suspicion of murder on the 11th December 2012 and was detained in Clonmel Garda station until the 15th December. While in detention he admitted to gardaí that he had shot Mr. Rossiter, stating that he had feared that Mr. Rossiter intended to kill him.

The extension of detention

The legislation

9 The appellant asserted that he was in unlawful custody at the time when the alleged admissions were made. The issue here concerned the extended detention permitted pursuant to a warrant granted in the District Court under the provisions of the Criminal Justice Act 2007.

10 In summary, the initial provisions of s.50 of the Act of 2007 provide for the detention of an arrested suspect for, in the first instance, a period of six hours if the member in charge of the garda station has reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence for which he or she was arrested. The detention may be extended at the end of that period, for a further 18 hours, by a member of the Garda Síochána not below the rank of superintendent. A further 24 hours may be authorised by a member not below the rank of chief superintendent.

11 Thus, a total period of up to 48 hours detention may be authorised at increasing levels of seniority. However, an application to court is necessary for any further extension. The procedure is governed by subsections (3) to (6) of s.50, the relevant parts of which are set out here:

(3) (g)(i) A member of the Garda...