DPP v O'Reilly

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 06 March 2009
• Neutral Citation: [2009] IECCA 18
• Court: Court of Criminal Appeal
• Date: 06 March 2009

[2009] IECCA 18

THE COURT OF CRIMINAL APPEAL

Murray C.J.

Murphy J.

McCarthy J.

186/07

DPP v O'Reilly

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

JOSEPH O'REILLY

APPLICANT

CRIMINAL JUSTICE ACT 1984 (ELECTRONIC RECORDING OF INTERVIEWS) REGS 1997 SI 74/1997 ART 5(2)

DPP v FINNERTY 1999 4 IR 364 2000 1 ILRM 191 1999/7/1661

AG, PEOPLE v CUMMINS 1972 IR 312

R v VOISIN (LOUIS MARIE) 1918 1 KB 531

DPP v BREEN UNREP CCA 13.3.1995 1995/7/2054

JUDGES RULES r2

JUDGES RULES r3

PEOPLE, DPP v SHAW 1982 IR 1

DPP, PEOPLE v O'BRIEN 2005 2 IR 206 2005 IESC 29

POSTAL & TELECOMMUNICATIONS SERVICES (AMDT) ACT 1999 S7

DPP v CLEARY 2005 2 IR 189 2005/19/3896 2005 IECCA 51

DOCUMENTARY EVIDENCE ACT 1925 S4(1)

CRIMINAL LAW

Evidence

Admissibility - Fair procedures - Statement by accused - Voluntary statement - Exculpatory statement - Caution - Judges' Rules - Whether suspect should be cautioned prior to making voluntary witness statement - Whether breach of Judges' Rules require voluntary statement inadmissible - Right to silence - Statement by accused in custody - Obligation to record commencement and conclusion times of interview - Whether prejudicial to accused to admit evidence of availing of right to silence - Telephone records - Right to privacy - Formal proof of licence - Whether formal proof that O2 Ireland was licensed operator necessary - People (DPP) v Finnerty [1999] 4 IR 364 distinguished; People (AG) v Cummins [1972] IR 312 applied; People (DPP) v Breen (Unrep, CCA, 13/3/1995) considered - Postal and Telecommunications Services (Amendment) Act 1999 (No 5), s 7 - Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 (SI 74/1997) - Appeal dismissed (186/1997 - CCA - 6/3/2009) [2009] IECCA 18

People (DPP) v O'Reilly

Facts: The applicant sought to appeal his conviction for murder of his wife on the basis inter alia that the trial judge had erred in permitting the prosecution to adduce evidence of interviews with the applicant in custody where it was clear that he had exercised his right to silence for that period of time, that the trial judge had erred in refusing to exclude from the jury a witness statement in circumstances where the applicant was a suspect and had no caution administered to him and that the trial Judge had erred in refusing to exclude mobile phone records information on the basis that it had not been proven that O2 Ireland was a licensed operator. The applicant also alleged that the trial judge had erred in refusing to exclude the evidence of an individual in respect of the movements of a motor vehicle by CCTV and that the trial judge had refused to exclude prejudicial emails months before the crime.

Held by the Court of Criminal Appeal per Murray CJ, in refusing the application, that the directions of the Judge to the jury were apt and appropriate and no error had been made in explaining the operation of the onus of proof and the right to silence. The voluntary statement made by the applicant was in principle admissible and the Trial Judge had exercised a discretion to admit the evidence as he saw fit. This ground of appeal failed. The Court was quite satisfied that on the basis of clear and admissible evidence as to the fact of the mobile phone license that the jury were entitled to act on that evidence as they saw fit and to conclude that O2 Ireland was a licensed operator at the time. The ground of objection to the CCTV evidence as to the motor vehcile was misconceived. That evidence was in fact limited. The emails were manifestly admissible and relevant evidence. Their timing was sufficiently proximate to the crime to be material evidence.

Reporter: E.F.

1 JUDGMENT of the Court delivered by Murray C.J. on the 6th day of March, 2009

2 The applicant stands convicted of the offence of murder. He was convicted of that offence on the 21 ^st July, 2007 after trial by a judge and jury before the Central Criminal Court. He had pleaded not guilty to the offence.

3 The charge was that on the 4 ^th day of October, 2004 he murdered one Rachel O'Reilly. The victim was the applicant's wife. The applicant applies to this Court for leave to appeal against his conviction. The grounds of appeal are set out in a notice of appeal filed on his behalf.

4 At the hearing of the application the applicant did not pursue all of those grounds.

5 At the trial the prosecution relied upon an extensive range of circumstantial evidence. During the trial a significant number of issues arose concerning the admissibility of evidence some of which were resolved in favour of the defence and in others the trial judge ruled that evidence tendered by the prosecution should be admitted notwithstanding the objections of the defence.

6 One of the broader grounds of appeal initially relied upon by the applicant was that the learned trial judge erred in law in refusing to withdraw the case from the jury and direct it to enter a not guilty verdict on the grounds that the evidence was in the main of a tenuous character, too circumstantial, and did no more than raise a suspicion of guilt.

7 This ground of appeal was, understandably, in the light of the totality of the evidence, not pursued. Counsel for the applicant acknowledged that if the evidence concerning the records and usage of the applicant's mobile phone were to be considered to have been properly admitted then, having regard to the totality of the evidence, there was a sufficient case to go to the jury. That is to say that in those circumstances the trial judge's ruling that there was sufficient evidence upon which the jury could properly convict is not challenged in this appeal.

8 Instead in this application counsel for the applicant has focused on putting in issue decisions of the trial judge on the admissibility of several parts of the evidence at the trial and in particular, but not exclusively, that relating to the phone record and usage. If his arguments concerning the admissibility of any of the evidence put in issue in this appeal are correct it is submitted that the verdict of the jury must be set aside.

9 One other aspect of the grounds of appeal was also not pursued namely that the learned trial judge erred in failing to give special directions to the jury as to the weight they should attach to the evidence of the applicant's good character as adduced by the defence. This also is understandable. The learned trial judge having drawn to the attention of the jury that evidence had been adduced by the defence to this effect it is difficult to see how his charge to the jury could be considered unfair or incomplete in that respect, notwithstanding some English authorities relied upon as to a practice followed in England and Wales.

10 At the hearing of this appeal the applicant relied on five grounds relating to the admissibility of evidence at the trial which are as follows:

11 (a) The learned trial judge erred in permitting the prosecution to adduce evidence of interviews with the applicant while in custody "in a format from which it was abundantly clear to the jury that the applicant exercised his right to remain silent for most of the period during which he was interviewed."

12 (b) The learned trial judge erred in law in refusing to exclude from evidence the witness statement of the applicant made on the 6 ^th October 2004 in circumstances where the applicant was a suspect at that time and no caution was administered in violation of the applicant's right to basic fairness of procedures.

13 (c) The learned trial judge erred in law in refusing to exclude evidence of telephone records and data relating to the applicant's mobile telephone which was obtained from O2 Ireland "in the absence of evidence that at the relevant time O2 Ireland was a licensed operator within the meaning of s. 7 of the Postal and Telecommunications Services (Amendment) Act 1999."

14 (d) The learned trial judge erred in refusing to exclude the evidence of Mr. Andrew Laws where a comparison was made of CCTV imagery of motor cars recorded on the 4 ^th October 2004 and CCTV imagery of a Fiat Marea on the 19 ^th November 2004 "in circumstances where such evidence was inherently flawed due to the failure to carry out a comparison with any motor vehicle other than a Fiat Marea."

15 (e) The learned trial judge erred in law in refusing to exclude the evidence of Detective Garda Keane concerning emails found on a computer belonging to the applicant "in circumstances where such emails dated from June 2004 and accordingly their prejudicial effect greatly outweighed any probative value they might have."

First Ground of Appeal

16 The first issue argued was that the learned trial judge erred in law in permitting the prosecution to adduce evidence of certain interviews with the applicant while in custody, because, as it was put, they were in a "format from which it was abundantly clear to the jury that the applicant had exercised his right to remain silent for most of the period during which he was interviewed."

17 This issue relates to a number of memoranda of interviews conducted by the gardaí with the applicant. No objection is taken to the substantive content of those memoranda, that is to say, the questions posed and the answers given by the applicant in the course of those interviews. In this context, it is not contended that the interviews were unfairly conducted or that what the applicant said was not said voluntarily.

18 In the course of their investigations the gardaí arrested the applicant pursuant to the Criminal Justice Act 1984 on a number of occasions for the purpose of questioning him and these interviews were recorded on video tape. A note of these interviews was also taken in writing. The first set of interviews...