DPP v Walsh

 
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1980 WJSC-SC 151

THE SUPREME COURT

C'Higgins C.J.

Walsh J.

Kenny J.

(54-1978)
People (D.P.P.) v. WALSH
D.P.P.
v.
RAYMOND WALSH
Affirming C.C.C - 23/2/78
1

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

2

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

3

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

4

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

5

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 by a blow on the head administered with an object called a "pillar" which was on a table in the house. Subsequent to the raid a finger print was discovered on this pillar. The investigating gardai at Rathmines had reason to believe that this finger print was made by the Appellant and for that reason had him under suspicion of involvement in the crime and wished to interview him. On January 23rd, 1975, at 9.30 o'clock at night, Detective Sergeant McCarrick of Store Street Garda Station with other gardai entered a public house in Thomas Street where the Appellant was drinking with a number of people. The Sergeant identified himself to the Appellant and informed him that he was taking him to Store Street Garda Station. The Appellant submitted to the arrest, asked no question, was handcuffed and removed to Store Street. Sergeant McCarrick's reason for the arrest was because the Appellant was suspected of being involved in the crime of August 29th which was a felony (Q.99) and was wanted for that reason by the Rathmines gardai (Q.95). The basis for the suspicion was his understanding that there was finger print print evidence connecting the Appellant with the crime (Q. 161). Sergeant McCarrick stated that he did not tell the Appellant of the reason for the arrest at the time because there were so many other people about (Q. 121) but nevertheless if the Appellant had asked for the reason he would have told him (Q. 130). Shortly after arrival at Store Street the sergeant told the Appellant of the reason for the arrest and gave him a legal caution (Q. 174). It does not appear that the Appellant said anything in reply. Some short time later, within an hour of arrival at Store Street, Sergeant McCarrick told the Appellant that he proposed taking his finger prints and asked if he had any objection. The Appellant did not object and the finger prints were taken. This constitutes the disputed evidence in this appeal. After the finger prints had been taken the Appellant's solicitor, Mr. Sheehan, arrived and after consultation with him the Appellant signed a form acknowledging that the finger prints had been taken with his consent. No charge had at this stage been brought against the Appellant, who was held in custody overnight. At some stage on the following day, Friday 24th January, an application for a conditional order of habeas corpus in respect of the Appellant's detention was applied for before the President of the High Court and duly granted, The return was fixed for Monday, 27th January, at 11 o'clock. On Saturday, 25th January, the Appellant was charged in the District Court with the offence committed on August 29th, and the District Justice made an order committing him in custody to Mountjoy, pending the hearing of the charge. On Monday 27th January, the cause for his detention, certified by way of return to the conditional order, was the order of the District Court made on the 25th January. The High Court (the President) held this return to be insufficient, ordered the immediate release of the Appellant, but under the provisions of the Habeas Corpus Act gave liberty for his re-arrest and that he be charged with the offence. Having been so arrested and charged the Appellant was later convicted of the offence before Mr. Justice Costello and a jury. The only evidence against him consisted of the finger prints taken in Store Street Garda Station on the night of January 23rd. These were identified as being identical with the print on the object used to fell one of the Cohen brothers. It follows, therefore, that, if this appeal succeeds, the conviction of the Appellant cannot stand and he must be freed.

6

The first ground of appeal is based on the assertion that at the time the finger prints were taken the Appellant was being illegally detained at Store Street Garda Station. The submission is that, as a consequence of this illegal detention, the evidence was obtained as a result of a deliberate and conscious violation of the Appellant's constitutional rights and should, therefore, in the circumstances of this case, be excluded.

7

I wish to say at once that if the imprisonment or detention in Store Street cannot be justified in law this submission should succeed. I have had the benefit of reading the Judgment of Mr. Justice Walsh in which he reviews 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 whether the arrest, and the detention immediately thereafter, of the Appellant on the night of the 23rd January was, or was not, lawful.

8

As I understand the argument put forward on behalf of the Appellant it is to the following effect. Since no reason was given for the arrest and since the Appellant was held in custody without being charged until the 25th January, during which period his finger prints were taken, the object and purpose of the arrest and subsequent imprisonment was to obtain evidence against him. If such were the object and purpose of the arrest and detention it could have no justification in law. It has been stated many times in our Courts that there is no such procedure permitted by the law as "holding for questioning", or detaining on any pretext, except pursuant to a Court order, or, for the purpose of charging and bringing the person detained before a court. Any other purpose is unknown to the law and constitutes a flagrant and unwarranted interference with the liberty of citizens. So serious a breach of constitutional rights would such an occurrence entail, however, that its happening should not lightly be assumed. The allegation that this occurred in this case was not made at the trial. There was a mild suggestion made in the cross examination of Sergeant McCarrick that the purpose of the arrest was to enable the Appellant to be interrogated. This was rejected by the Sergeant who stated that he was aware that there was finger print evidence connecting the Appellant with the crime. The matter was not pursued any further and the evidence remained that the Appellant had been arrested on suspicion of a felony because the Sergeant was aware that there was evidence connecting the Appellant with such a crime. However, even if the suggestion was not pursued or tested at the trial, I would look at the uncontested facts and evidence to see if such a conclusion, as is contended for here, should, or, could be reached. Two matters are clearly established on the evidence. The first is that the Appellant was not charged and brought before the District Court until the morning of January 25th. This fact has already been held by the President of the High Court to invalidate the imprisonment on the 24th. I quite agree with this view. The question is, however, whether this fact has a retroactive effect so as to invalidate the detention or custody on the night of the 23rd January. The second matter which requires examination is the fact that the Appellant was not given any reason for his arrest. Does this facts of itself invalidate and render unlawful his imprisonment in Store Street on the night of January 23rd and, of course, thereafter. I propose now to consider both these matters.

9

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 a felony. It is true that he referred to the gardai at Rathmines being anxious to interview the Appellant, but this has to be taken in conjunction with his awareness of the existence of evidence connecting the Appellant with the crime and his own assertion that he made the arrest on suspicion of a felony. Such an arrest by a police officer is justified at common law and it is so justified whether or not a felony has in fact been committed (Hadley v. Perks L.R. I Q.B.456). The fact that the sergeant may have been acting on suspicion held by other gardai or on an understanding from others as to what the evidence was, would not, in my view, impair his authority to act. In Creagh v. Gamble 24 L.R. Ir. 458 a...

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