DPP v Quilligan (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [S.C. Nos. 401 and 405 of 1989]
• Court: Supreme Court

Supreme Court

[S.C. Nos. 401 and 405 of 1989]

The People (Director of Public Prosecutions) v. Quilligan (No. 3)

The People (at the suit of the Director of Public Prosecutions)

and

Christopher Quilligan and Patrick O'Reilly (No. 3)

Cases mentioned in this report:—

Ali v. Ali [1965] 3 All E.R. 480.

Attorney General v. Levison [1932] I.R. 158.

Attorney General v. Linehan [1929] I.R. 19; (1929) 63 I.L.T.R. 100.

Basto v. R. (1954) 91 C.L.R. 628.

Berkeley v. Edwards [1988] I.R. 217.

Byrne v. Grey [1988] I.R. 31.

Chan Wie Kung v. R. [1967] 2 A.C. 160; [1967] 2 W.L.R. 352; [1967] 1 All E.R. 948.

Director of Public Prosecutions v. Healy [1990] I.L.R.M. 313.

Director of Public Prosecutions v. Kilbourne [1973] A.C. 729; [1973] 2 W.L.R. 254; [1973] 1 All E.R. 440.

In re The Emergency Powers Bill, 1976 [1977] I.R. 159; (1976) 111 I.L.T.R. 29.

Miranda v. Arizona (1966) 384 U.S. 436.

The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33.

The People (Attorney General) v. O'Brien [1965] I.R. 142.

The People (Attorney General) v. Williams [1940] I.R. 195.

The People (Director of Public Prosecutions) v. Breathnach (1981) 2 Frewen 43.

The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460; [1988] I.L.R.M. 4.

The People (Director of Public Prosecutions) v. Eccles, McPhillips and McShane (1986) 3 Frewen 36.

The People (Director of Public Prosecutions) v. Kelly (No. 2) [1983] I.R. 1; [1983] I.L.R.M. 271.

The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.

The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People (Director of Public Prosecutions) v. Murray [1977] I.R. 360; (1976) 111 I.L.T.R. 65.

The People (Director of Public Prosecutions) v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 359.

The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495; [1987] I.L.R.M. 606.

The People (Director of Public Prosecutions) v. Quilligan (No. 2)[1989] I.R. 46; [1989] I.L.R.M. 245.

The People (Director of Public Prosecutions) v. Shaw [1982] I.R. 1.

The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294.

R. v. Bass [1953] 1 Q.B. 680; [1953] 2 W.L.R. 825; [1953] 1 All E.R. 1064.

R. v. Burgess [1968] 2 Q.B. 112; [1968] 2 W.L.R. 1209; [1968] 2 All E.R. 54.

R. v. Hall [1973] Q.B. 496; [1972] 3 W.L.R. 974; [1973] 1 All E.R. 1.

R. v. Ovenell [1969] 1 Q.B. 17; [1968] 1 All E.R. 933; [1968] 2 W.L.R. 1543.

Ryan v. O'Callaghan (Unreported, High Court, Barr J., 22nd July, 1987).

In re Singer (No. 2) (1960) 98 I.L.T.R. 112.

The State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550; [1985] I.L.R.M. 465.

Tormey v. Ireland [1985] I.R. 289; [1985] I.L.R.M. 375.

Constitution - Personal rights - Liberty - Legislation permitting detention and questioning of persons suspected of specified offences for up to 48 hours - Whether invidious discrimination against such persons - Whether failure by State to protect and vindicate individual's liberty - Whether such legislation requiring protection of Article 28, s. 3, sub-s. 3 of the Constitution - Offences Against the State Act, 1939 (No. 13), s. 30.

Constitution - Personal rights - Self incrimination - Legislation permitting detention and questioning of persons suspected of specified offences for up to 48 hours - Whether failure by State to protect unenumerated right to silence or to protection against self-incrimination - Whether such right existing - Offences Against the State Act, 1939 (No. 13), s. 30 - Constitution of Ireland, 1937, Article 28, s. 3, sub-s. 3 and Article 40.

Criminal law - Trial - Burglary - Accused previously tried on charge of murder arising out of same incident - Accused found not guilty of murder on direction of trial judge - Acquittal set aside by Supreme Court - Retrial on murder charge not ordered - Accused convicted on burglary charge four years after murder trial - Death of alibi witness after murder trial - Whether prejudice to accused - Whether accused entitled to plead autrefois acquit - Whether issue estoppel arising on findings subsequently set aside on appeal.

Criminal law - Trial - Practice - Whether accused prejudiced by holding of separate trials on murder and burglary charges arising out of same incident.

Criminal law - Evidence - Signed confessions of accused made whilst in custody under s. 30 of the Offences Against the State Act, 1939 - Accused asserting that confessions not made voluntarily - Absence of evidence corroborating accused's guilt - Whether jury should be warned of danger of convicting on such confessions without corroborating evidence - Offences Against the State Act, 1939 (No. 13), s. 30.

Criminal law - Evidence - Admissibility - Judge and jury - Whether function of judge alone to decide on voluntary nature of statement made by accused in custody - Whether jury should be directed to make finding as to whether statement voluntarily given - Contents of trial judge's charge to jury where accused maintains that statement admitted in evidence by trial judge was not made voluntarily - Whether jury bound by trial judge's findings of fact in ruling on admissibility of statement.

Appeal from the Central Criminal Court.

The appellants were tried in the Central Criminal Court (Costello J. and a jury) on a charge of burglary on the 31st October, 1989, and the 1st, 2nd, 3rd, 7th, 8th, 9th, 10th, 13th, 14th, 15th and 16th November, 1989, and were found guilty on the latter date. (In 1985, the appellants had been found not guilty, by direction of the trial judge, on a charge of murder. The acquittal was set aside by the Supreme Court, but no new trial was ordered - see [1986] I.R. 495 and [1989] I.R. 46). The appellant O'Reilly lodged a notice of appeal against the conviction on the 8th December, 1989, and by order of the Supreme Court (Finlay C.J., Hederman and Egan JJ.) made on the 18th October, 1991, was given leave to amend the notice of appeal to include an appeal against sentence. By notice of appeal dated the 11th December, 1989, the appellant Quilligan appealed against his conviction.

The appeals were heard by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) on the 11th and 12th February, 1992.

Section 30, sub-s. 1 of the Offences Against the State Act, 1939, empowers a member of the Garda Síochána, without warrant, to stop, search, interrogate or arrest any person whom he suspects of being concerned in the commission of an offence under the Act of 1939, or of an offence which is a scheduled offence under Part V of that Act.

Section 30, sub-s. 3 of the Act of 1939 provides that a person arrested under s. 30 may be detained for 24 hours from the time of his arrest, and for a further 24 hours if an officer not below the rank of Chief Superintendent so directs.

Section 30, sub-s. 5 empowers a member of the Garda Síochána to demand of a person detained under s. 30 his name and address, and to search, photograph or fingerprint a person so detained; and by virtue of s. 30, sub-s. 6, a person who refuses to give his name and address or who gives a false name and address is guilty of an offence, carrying up to six months imprisonment.

The appellants were convicted on charges of burglary in the Central Criminal Court, in October, 1989. The appellants had been arrested pursuant to s. 30 of the Act of 1939, on suspicion of having caused malicious damage, a scheduled offence under the Act of 1939, and were subsequently charged with the offences of murder and burglary, which are not offences under the Act of 1939 or offences scheduled to that Act. The appellants were tried on a charge of murder in December, 1985, the burglary charge having been adjourned without objection from the appellants. The trial judge held that the appellants had been unlawfully arrested, and directed the jury to find them not guilty of murder. In July, 1986, the Supreme Court set aside the acquittal, but did not make any order in relation to a retrial. In July, 1988, the Supreme Court refused the respondent's motion, brought in December, 1986, for a retrial on the charge of murder. At both the murder and burglary trials, the evidence against the accused had consisted of signed confessions given whilst in custody, which the accused contended had not been made voluntarily.

On appeal against their convictions on the burglary charges, the appellants contended that the provisions of s. 30 of the Offences Against the State Act, 1939, were unconstitutional in that: (a) they permitted of invidious discrimination, contrary to Article 40, s. 1 of the Constitution, against those arrested under that section, who could be detained for up to 48 hours, whereas persons arrested on any other grounds had a right to be charged as soon as practicable, or be released; (b) the personal right of liberty guaranteed by Article 40, ss. 3 and 4 of the Constitution was insufficiently respected and defended by a law which permitted a person to be detained for 24 or 48 hours, and that such a provision required to be defended by Article 28, s. 3, sub-s. 3 of the Constitution; (c) there was an unenumerated right to silence or to protection against self-incrimination guaranteed by Article 40 of the Constitution, which was invaded by the possibility of a person arrested under s. 30 of the Act of 1939 being subjected over a period of 24 or 48 hours to sustained interrogation by members of the Garda Síochána.

The appellant O'Reilly also contended that it had been unfair to allow the burglary trial to proceed due to the effluxion of time, in that he had married and had a child and the passage of time made events more difficult to remember. The appellant Quilligan contended that he had been prejudiced by the passage of time in that an alibi witness who had testified at the murder trial had since died.

It was also contended on the...