DPP v O'Toole

 
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1990 WJSC-CCA 1662

THE COURT OF CRIMINAL APPEAL

Hederman J.

Egan J.

Johnson J.

Nos. 131 &130/88
DPP v. O'TOOLE
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
v.
TERENCE O'TOOLE AND JAMES HICKEY
Applicants

Citations:

LARCENY ACT 1916 S23

CRIMINAL LAW (JURISDICTION) ACT 1976 S5

LARCENY ACT 1916 S14

CRIMINAL JUSTICE ACT 1984 S4(3)(b)

CRIMINAL JUSTICE ACT 1984 S4(2)

DPP, PEOPLE V WALSH 1980 IR 294

CRIMINAL JUSTICE ACT 1984 S4(5)

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE ACT 1984 S5

Synopsis:

CRIMINAL LAW

Suspect

Detention - Justification - Statute - Conditions - Compliance - Statement - Admissibility - Offence - Charge - Expedition - Murder - Accomplice - Common design - Guilt of accomplice - Criminal Justice Act, 1984, s. 4 - (130-31/88 - Court of Criminal Appeal - 20/7/90)

|The People v. O'Toole|

DIRECTOR OF PUBLIC PROSECUTIONS

Advice

Reliance - Gardai - Suspect - Detention - Charge - Expedition - Duty to charge suspect without delay - Confession of suspect - Continued detention in order to hold identification parade - Continued detention on advice of Director - Suspect subsequently charged - (130-31/88 - Court of Criminal Appeal - 20/7/90)

|The People v. O'Toole|

GARDA SIOCHANA

Suspect

Detention - Charge - Expedition - Duty to charge without delay - Confession of suspect - Continued detention to hold identification parade - Continued detention on advice of Director of Public Prosecutions - Suspect subsequently charged - (130- 31/88 - Court of Criminal Appeal - 20/7/90)

|The People v. O'Toole|

WORDS AND PHRASES

"Without delay charge"

Suspect - Detention - Duration - Limitation - Gardai - Duty to charge or release suspect - Confession of suspect - Continued detention to hold identification parade - Suspect subsequently charged - (130-31/88 - Court of Criminal Appeal - 20/7/90)

|The People v. O'Toole|

1

JUDGMENT OF THE COURT delivered on the 20th July 1990 by HEDERMAN J.

2

After a trial lasting nine days the applicants, Terence O'Toole and James Hickey were on the 7th day of November 1988 convicted of murdering Edward Conal Gilbert O'Callaghan on the 14th day of February 1988 in the County of the City of Dublin, and were on that day given the mandatory sentence of penal servitude for life. The applicant, Terence O'Toole was also convicted of robbing Edward Conal Gilbert O'Callaghan on the 14th day of February 1988 at the same venue, of a wallet, a Visa card, assorted credit cards and cash contrary to s. 23 of the Larceny Act, 1916, as inserted by s. 5 of the Criminal Law (Jurisdiction) Act, 1976, and of larceny from the person of Edward Conal Gilbert O'Callaghan of the same items contrary to s. 14 of the Larceny Act, 1916. The applicant, James Hickey was also convicted of assaulting Edward Conal Gilbert O'Callaghan with intent to rob him contrary to s. 23 of the Larceny Act, 1916 inserted by s. 5 of the Criminal Law (Jurisdiction) Act, 1976.Sentence of these latter convictions was adjourned to the 11th November 1988 when the Honourable Mr. Justice Barr imposed on the applicant, Terence O'Toole, a term of seven years imprisonment on the robbery contrary to s. 23 of the Larceny Act, 1916, and two years imprisonment on the larceny from the person, contrary to s. 14 of the Larceny Act, 1916, both sentences to run concurrently, and to date from the 7th November 1988. He further sentenced the applicant, James Hickey, on the assault with intent to rob, contrary to s. 23 of the Larceny Act, 1916 to be imprisoned for a period of five years from the 7th November 1988, also to run concurrently with the sentence of penal servitude.

3

Counsel for the applicant, Terence O'Toole, relied only on three of the grounds set out in his notice of appeal. They were:-

4

2 (1)The learned trial Judge erred in law in holding that Sgt. Farrelly validly invoked s. 4 of the Criminal Justice Act, 1984.

5

3 (2)That the learned trial Judge erred in law or in the exercise of his discretion in admitting the second statement tendered in evidence against Terence O'Toole.

6

4 (3)That the learned trial Judge erred in law in not holding that Terence O'Toole should have been charged after making the two statements tendered in evidence against him.

7

Counsel for the applicant, James Hickey, relied on grounds (1) and (3) of the grounds stated in the notice of appeal of Terence O'Toole, with the additional grounds:-

8

(4) That the learned trial Judge erred in law and in fact in failing to withdraw Count No. 1 from the jury at the close of the prosecution case.

9

(5) That the learned trial Judge misdirected the jury in respect of the concept of "common design".

10

(6) The verdict was against the evidence.

11

The Court proposes to deal first with the grounds of appeal common to both the applicants.

12

Both applicants submit that Sgt. Farrelly did not validly invoke s. 4 of the Criminal Justice Act, 1984, at the time of their arrival at Irishtown Garda Station on the morning of the 16th February 1988 and that the extension order made under s. 4 of the 1984 Act by Superintendent T.D. Malone at 12.20 p.m. on the 16th February 1988 was, in the circumstances of the case, not a lawful or valid extension in accordance with s. 4, subs. 3 (b) of the Criminal Justice Act, 1984.

13

On the night of Saturday/Sunday 13th/14th February 1988, Edward Conal Gilbert O'Callaghan had dined at the Quo Vadis Restaurant, Andrew Street, and at that time had on him a wallet which contained a Visa card, with which he paid his bill, and assorted credit cards and cash. He left the Quo Vadis sometime after 10.45 p.m. to walk to an apartment which he had at 11 Tara Court, Sandymount. He was observed by a number of people in the vicinity of Haddington Road and Bath Avenue and was attacked and robbed at Vavasour Square off Bath Avenue. Almost immediately after the robbery he was attended to by a number of people but at that time he was dead. His body was lying between a white Renault motor car and the wall of a house. Missing from his person were his watch, his wallet and his Visa card. As soon as the body had been removed from Vavasour Square Det. Inspector James Noonan found 75 pence in cash under where the body had been lying and a night latch key. He also at 5.15 a.m. on the 14th February took possession of a woollen glove lying on the top of a hedge at 41 Bath Avenue.

14

At approximately 6.30 a.m. on the 16th February Inspector Noonan with a party of Gardai, left Irishtown Garda Station to search a number of addresses in the City of Dublin. The first premises they went to was 10D Glin Park, Coolock for which a warrant to search had been obtained. He was accompanied among others by Det. sgt. Martin Donnellan, Det. Gda. Thomas Rock, Det. Gda. Brennan, Det. Gda. Daniels and Det. Gda. Smith. Det. Sgt. Donnellan had in his possession a search warrant authorising the search of 10D Glin Park - it is Exhibit "D" - and it was issued by District Justice Daniel Shields on the 15th February 1988. The Gardai having surrounded the house at 10D Glin Park, Det. Sgt. Donnellan knocked on the front door of the house. There was no response to the knocking. The door was forced. Upstairs the Detective and the Gardai saw the accused James Hickey who was in a bedroom getting dressed. The applicant Terence O'Toole was in another bedroom in the house. Inspector Noonan, who was accompanied by Gardas Rock and Smith then saw the applicant James Hickey. Inspector Noonan produced his identity. It was then 7.20 a.m. and the Inspector told Mr. Hickey that he was arresting him on suspicion of the murder of Edward O'Callaghan at Vavasour Square at approximately 1 a.m. on the 14th February. He cautioned him - "You are not obliged to say anything unless you wish to do so, and if you wish to do so, it will be taken down in writing and may be used in evidence." Mr. Hickey made no reply. He was conveyed to Irishtown Garda Station, arriving at Irishtown Garda Station at 7.38 a.m. where he was handed over to the Garda in charge of Irishtown Garda Station, Sgt. John Farrelly. The Inspector told Sgt. Farrelly that he had arrested the accused James Hickey on suspicion of the murder of Edward O'Callaghan at Vavasour Square at approximately 1 a.m. on the 14th February. He also told Sgt. Farrelly that he had reasonable grounds for believing that Mr. Hickey had committed the murder. In Inspector Noonan's presence, Sgt. Farrelly then detained the applicant, Mr. Hickey, pursuant to s. 4 of the Criminal Justice Act, 1984.In the presence of the Inspector, Sgt. Farrelly read over the legal caution and the rights of the accused under the 1984 Act, and Mr. Hickey was then brought to an interview room by Det. Gda. Rock and Det. Gda. Smith.

15

Inspector Noonan also informed Sgt. Farrelly of the arrest of the second man, Mr. O'Toole and told him that he, the Inspector, had reasonable grounds for believing that Mr. O'Toole was also responsible for committing the crime of murder for which he was arrested.

16

Det. Sgt. Martin Donnellan gave evidence that on the 15th day of February 1988 he swore an information before District Justice Daniel Shields and got the search warrant on foot of the said information, already referred to above. On the morning of the 16th February 1988 at about 6.30 a.m. he had a discussion with Sgt. John Farrelly at Irishtown Garda Station. Subsequent to that discussion, with a party of Gardai including Det. Inspector Noonan and...

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