DPP -v- Raymond Gormley, [2009] IECCA 86 (2009)

Docket Number:20/08
Party Name:DPP, Raymond Gormley
Judge:Finnegan J.
 
FREE EXCERPT

COURT OF CRIMINAL APPEAL

RECORD NO. 20/08

Finnegan J.

Hanna J.

Charleton J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

.v.

RAYMOND GORMLEY

APPLICANT

Judgment of the Court delivered on the 27th day of July 2009 by Finnegan J.

The applicant was charged with the following offences:-

  1. Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act 2001.

  2. Rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990.

    On the 7th November 2007 he was found not guilty on count 1 and on count 2 not guilty of rape but guilty of attempted section 4 rape.

    On the 24th April 2005 the complainant was alone in her house. She knew the applicant having met him socially on a number of occasions. They became quite friendly. In the early hours of that morning the complainant awoke to find the applicant beside her in her bed. He had gained access by climbing a drain pipe and entering through an upper floor window. The complainant's evidence was that the offences with which the applicant was charged then occurred. Shortly thereafter the applicant left the premises through the front door.

    Later that morning, a Sunday, the complainant contacted the Garda Síochana. She identified the applicant. Immediately the Gardaí ascertained the applicant's address which was in an apartment complex. On arriving at the apartment complex the Gardaí met with the owner of the same who admitted them to the apartment block. They went to the applicant's apartment. The door to the same was open. They called out and entered and climbed an internal stairway. They found the applicant reading a newspaper and he invited them to come in. The applicant was cautioned and a number of questions were put to him. He identified the clothing he had been wearing that morning. In answer to questions he admitted climbing the drain pipe at the back of the complainant's house and entering through an upstairs window. The applicant was then arrested and taken to the Garda Station arriving at 2 p.m. He was processed. Two interviews took place:-

  3. Interview commencing 3.10 p.m. and terminating 4.46 p.m.

  4. Interview commencing 6.47 p.m. and terminating 8.33 p.m.

    In the course of processing at the Garda Station the applicant was informed of his entitlement to consult a solicitor. At 2.15 p.m. the applicant requested as his solicitor either Mr Cathal Quinn or Mr Kieran Dillon. No mobile phone number for either of these solicitors was available and they were not in their respective offices. A Garda car was dispatched to find Mr Dillon. It first called to his parents home where there was no response. Gardaí then called to Mr Dillon's home where they spoke to his wife. She agreed to contact Mr Dillon. These events occurred between 2.15 p.m. and 2.45 p.m. At 3.05 Mr Dillon telephoned the station and said that he would call to the station shortly after 4 p.m. At 4.48 p.m. the applicant's solicitor arrived at the station and he met with the applicant at 5 p.m. The solicitor remained with the applicant until 5.45 p.m.

    Grounds of Appeal

    The Notice of Appeal contained a single ground as follows:-

    "The learned trial judge erred in fact and in law in admitting into evidence the statements allegedly made by the accused to the prosecuting Guards."

    In submissions the admissibility of statements was challenged on two grounds:-

  5. The entry into the applicant's dwelling was unlawful and therefore his arrest was unlawful and interviews consequent upon the entry and arrest should have been excluded, and

  6. The interviews were obtained in breach of the applicant's constitutional right of access to his solicitor and ought to be excluded.

    It is proposed to deal with each of these grounds in turn.

  7. ...

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