DPP v Walsh


1980 WJSC-SC 151


C'Higgins C.J.

Walsh J.

Kenny J.

People (D.P.P.) v. WALSH
Affirming C.C.C - 23/2/78

JUDGMENT delivered the 17th day of January 1980by O'HIGGINS C.J. (KENNY J. CONCURRING)


The issue in this appeal is whether evidence as to the finger prints ofthe Appellant taken at Store Street Garda Station ought to have beenadmitted in evidence at his trial. It is submitted that such should nothave been admitted because, it is contended, the Appellant was inunlawful custody at the time. Alternatively it is contended that even ifthe Appellant were in lawful custody such evidence should not have beenadmitted because an appropriate caution had not been given in respect ofthe taking of finger prints.


The first ground of objection was not raised at the trial. Ordinarilyfor that reason it would not be entertained in this Court. However, asthis is a criminal case and as the Appellant's liberty isinvolved, the Court has permitted the objection to be argued.


Before dealing with these two grounds of appeal it is necessary to referto the circumstances under which the finger prints were taken and tosuch parts of the evidence at the Appellant's trial as appearsrelevant.


On August 29th, 1974, four men, one of whom was armed with a gun,entered the house of the Coen brothers at 3 Kenilworth Square, Rathgar.The Coens were antique dealers, and the object of the raid was robbery.When one of the Coens offered resistance he was felled to the ground bya blow on the head administered with an object called a"pillar" which was on a table in the house. Subsequent tothe raid a finger print was discovered on this pillar. The investigatinggardai at Rathmines had reason to believe that this finger print wasmade by the Appellant and for that reason had him under suspicion ofinvolvement in the crime and wished to interview him. On January23rd, 1975, at 9.30 o'clock at night, Detective Sergeant McCarrick ofStore Street Garda Station with other gardai entered a public house inThomas Street where the Appellant was drinking with a number of people.The Sergeant identified himself to the Appellant and informed him thathe was taking him to Store Street Garda Station. The Appellant submittedto the arrest, asked no question, was handcuffed and removed to StoreStreet. Sergeant McCarrick's reason for the arrest was because theAppellant was suspected of being involved in the crime of August 29thwhich was a felony (Q.99) and was wanted for that reason by theRathmines gardai (Q.95). The basis for the suspicion was hisunderstanding that there was finger print print evidence connecting theAppellant with the crime (Q. 161). Sergeant McCarrick stated that he didnot tell the Appellant of the reason for the arrest at the time becausethere were so many other people about (Q. 121) but nevertheless if theAppellant had asked for the reason he would have told him (Q. 130).Shortly after arrival at Store Street the sergeant told the Appellant ofthe reason for the arrest and gave him a legal caution (Q. 174). It doesnot appear that the Appellant said anything in reply. Some short timelater, within an hour of arrival at Store Street, Sergeant McCarricktold the Appellant that he proposed taking his finger prints and askedif he had any objection. The Appellant did not object and the fingerprints were taken. This constitutes the disputed evidence in thisappeal. After the finger prints had been taken the Appellant'ssolicitor, Mr. Sheehan, arrived and after consultation with him theAppellant signed a form acknowledging that the finger prints had beentaken with his consent. No charge had at this stage been brought againstthe Appellant, who was held in custody overnight. At some stage on thefollowing day, Friday 24th January, an application for a conditionalorder of habeas corpus in respect of the Appellant's detention wasapplied for before the President of the High Court and dulygranted, The return was fixed for Monday, 27th January, at 11 o'clock.On Saturday, 25th January, the Appellant was charged in the DistrictCourt with the offence committed on August 29th, and the DistrictJustice made an order committing him in custody to Mountjoy, pending thehearing of the charge. On Monday 27th January, the cause for hisdetention, certified by way of return to the conditional order, was theorder of the District Court made on the 25th January. The High Court(the President) held this return to be insufficient, ordered theimmediate release of the Appellant, but under the provisions of theHabeas Corpus Act gave liberty for his re-arrest and that he be chargedwith the offence. Having been so arrested and charged the Appellant waslater convicted of the offence before Mr. Justice Costello and a jury.The only evidence against him consisted of the finger prints taken inStore Street Garda Station on the night of January 23rd. These wereidentified as being identical with the print on the object used to fellone of the Cohenbrothers. It follows, therefore, that, if this appeal succeeds, theconviction of the Appellant cannot stand and he must be freed.


The first ground of appeal is based on the assertion that at the timethe finger prints were taken the Appellant was being illegally detainedat Store Street Garda Station. The submission is that, as a consequenceof this illegal detention, the evidence was obtained as a result of adeliberate and conscious violation of the Appellant's constitutionalrights and should, therefore, in the circumstances of this case, beexcluded.


I wish to say at once that if the imprisonment or detention in StoreStreet cannot be justified in law this submission should succeed. I havehad the benefit of reading the Judgment of Mr. Justice Walsh in which hereviews the authorities on this important aspect of constitutional law.I am in complete agreement with the manner in which he states the law.This, however, is not, in my view, the crucial question.The crucial question - indeed the only question - in my view, is whetherthe arrest, and the detention immediately thereafter, of the Appellanton the night of the 23rd January was, or was not, lawful.


As I understand the argument put forward on behalf of the Appellant itis to the following effect. Since no reason was given for the arrest andsince the Appellant was held in custody without being charged until the25th January, during which period his finger prints were taken, theobject and purpose of the arrest and subsequent imprisonment was toobtain evidence against him. If such were the object and purpose of thearrest and detention it could have no justification in law. It has beenstated many times in our Courts that there is no such procedurepermitted by the law as "holding for questioning", ordetaining on any pretext, except pursuant to a Court order, or, for thepurpose of charging and bringing the person detained before a court. Anyother purpose is unknown to the law and constitutes a flagrant andunwarranted interference with the liberty of citizens. So serious abreach of constitutional rights would such an occurrence entail,however, that its happening should not lightly be assumed. Theallegation that this occurred in this case was not made at the trial.There was a mild suggestion made in the cross examination of SergeantMcCarrick that the purpose of the arrest was to enable the Appellant tobe interrogated. This was rejected by the Sergeant who stated that hewas aware that there was finger print evidence connecting the Appellantwith the crime. The matter was not pursued any further and the evidenceremained that the Appellant had been arrested on suspicion of a felonybecause the Sergeant was aware that there was evidence connecting theAppellant with such a crime. However, even if the suggestion was notpursued or tested at the trial, I would look at the uncontested factsand evidence to see if such a conclusion, as is contended for here,should, or, could be reached. Two matters are clearly established on theevidence. The first is that the Appellant was not charged and broughtbefore the District Court until the morning of January 25th. This facthas already been held by the President of the High Court to invalidatethe imprisonment on the 24th. I quite agree with this view. The questionis, however, whether this fact has a retroactive effect so as toinvalidate the detention or custody on the night of the 23rd January.The second matter which requires examination is the fact that theAppellant was not given any reason for his arrest. Does this facts ofitself invalidate and render unlawful his imprisonment in Store Streeton the night of January 23rd and, of course, thereafter. I propose nowto consider both these matters.


As to the arrest, I have no doubt, on the evidence, that D/Sergt.McCarrick arrested the Appellant on suspicion of his being involved in afelony. It is true that he referred to the gardai at Rathmines beinganxious to interview the Appellant, but this has to betaken in conjunction with his awareness of the existence of evidenceconnecting the Appellant with the crime and his own assertion that hemade the arrest on suspicion of a felony. Such an arrest by a policeofficer is justified at common law and it is so justified whether or nota felony has in fact been committed (Hadley v. Perks L.R. IQ.B.456). The fact that the sergeant may have been acting on suspicionheld by other gardai or on an understanding from others as to what theevidence was, would not, in my view, impair his authority to act. In Creagh v. Gamble 24 L.R. Ir. 458 a knowledge that a warrant hadbeen issued for the apprehension of a person justified his arrest by anofficer without a warrant. In that case Pallas C.B. said at p.472:

"I find in varied forms a recurrence of the principle which formsits fundamental basis, that a person against whom a reasonable suspicianof felony exists shall be brought to justice. The peace officer is notonly entitled, but bound, to...

To continue reading