People (Attorney General) v Cummins

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1974
• Docket Number: [S.C. No. 35 of 1971]
• Date: 01 January 1974

The People (Attorney General) v. Cummins

THE PEOPLE (at the Suit of THE ATTORNEY GENERAL)

and

LAURENCE CUMMINS

[S.C. No. 35 of 1971]

Supreme Court

Criminal Law - Evidence - Admissibility - Statement by accused - Inducement - Whether a voluntary statement - Judges' Rules - Reference of question of law to the Supreme Court - Indictable offence - Preliminary examination - Statement of witness's evidence - Criminal Procedure Act, 1967 (No. 12),s. 34.

The accused was tried on indictment in the Circuit Court on a count of shop-breaking and larceny in the premises of Premier Tailors (Ireland) Ltd. At the trial, the prosecution adduced evidence that the accused, while in custody in a police station in relation to another matter, was asked by a policeman "What about Premier Tailors? I believe you did it" and that the accused replied "We did it and we got £255 . . ."; evidence was given that the policeman then cautioned the accused and asked him to make a statement and that the accused replied:— "I will make no statement. Do you want me to hang myself?" The trial judge ruled that the replies of the accused were not admissible in evidence because they were not voluntary statements and, in the absence of other evidence, the jury returned a verdict of not guilty as directed by the trial judge. The Attorney General referred to the Supreme Court the question whether the trial judge had properly exercised "his judicial discretion in refusing to admit in evidence (1) the statement made by accused . . . before any caution was administered . . ." Similar questions relating to subsequent statements of the accused were also referred to the Supreme Court but those other questions were not based on facts established by the evidence given at the trial but were based on the contents of the written statement of the evidence of a prosecution witness, which document had been prepared and used for the purposes of the preliminary examination in the District Court of the charge brought against the accused.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.), in answering the question contained in the Reference, 1, that an inculpatory statement made by an accused and found by the trial judge not to have been a voluntary statement must be excluded by the judge from the evidence at the trial of the accused as the trial judge, having so found, has no discretion to admit the statement.

2. That an inculpatory statement by an accused may be a voluntary one although it was made in conjunction with a breach of the Judges' Rules, or was obtained by a false pretence.

McCarrick v. Leavy [1964] I.R. 225 applied.

The People (Attorney General) v. O'Brien [1965] I.R. 142 considered.

3. That, as he was then in custody, the accused should have been cautioned in accordance with rule 3 of the Judges' Rules before being asked about Premier Tailors; but that the trial judge, believing the accused's statement not to have been a voluntary one, had not considered exercising his discretionary power in this connection.

4. That the trial judge had erred in ruling that the accused's first statement had not been a voluntary one.

5. That the Court would not answer the other questions contained in the statement of the Reference as those questions did not arise from facts established by the evidence given at the trial of the accused.

Reference of question of law

The statement of the Reference (infra) was prepared by the Attorney General pursuant to s. 34 of the Criminal Procedure Act, 1967, after Laurence Cummins had been acquitted at his trial on indictment in the Circuit Court on the 26th April, 1968. This Reference was the first to be made to the Supreme Court pursuant to s. 34 of the Act of 1967.

Section 34 of the Act of 1967 provides as follows:—

"(1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.

(2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

(3) The Supreme Court shall assign counsel to argue in support of the decision."

The statement of the Reference was entitled:— "In the Matter of the Criminal Procedure Act, 1967, and in the Matter of the Reference of Questions of Law to the Supreme Court for determination, and in the Matter of the trial of The People at the Suit of the Attorney General v. Laurence Cummins."

The statement of the Reference was in the following terms:—

"TAKE NOTICE that the Attorney General, after consultation with His Honour Circuit Court Judge James McGivern, hereby refers to the Supreme Court the questions of law hereinafter set out, which arose during the trial of the above-named accused Laurence Cummins:—

WHEREAS:—

1. The trial of the above-named accused Laurence Cummins took place on the 26th day of April, 1968, before Circuit Judge James McGivern sitting as the judge assigned to the Circuit Criminal Court for the County of Dublin with a jury.

2. The accused was arrainged and, having pleaded not guilty, a jury was empanelled to try the count on the indictment which is as follows:—

Statement of Offence

Count No. 1. Shopbreaking and larceny contrary to Section 26(1) of the Larceny Act, 1916.

Particulars of Offence

Laurence Cummins between the 3rd day of December, 1967, and the 4th day of December, 1967, in the City of Dublin broke and entered the shop of Messrs. Premier Tailors (Ireland) Ltd. and stole the sum of £250.0.0 in cash, one gold and diamond bracelet, one pair of diamond ear-rings and one platinum diamond brooch all the property of Victor Newman in the said shop.

3. During the course of the said trial the prosecution adduced evidence to establish the following facts:—

• (a) That the premises of Messrs Premier Tailors, gentlemen's tailors and outfitters at 24 Henry Street in the City of Dublin, were during the night of the 3rd/4th December, 1967, broken into and the sum of £250.0.0 in cash and a quantity of jewellery consisting of one diamond and gold bracelet, one pair of diamond ear-rings and one diamond brooch amounting in all to the value of £4,500.0.0 was stolen from the said premises.

• (b) That the said accused when in custody in Store Street Garda Station on the 9th day of January, 1968, in connection with other matters then being investigated by the Gardai was asked by Detective Inspector Jacob Lalor:— "What about Premier Tailors? I believe you did it." To which the accused replied:— "We did it and we got £255 in an envelope in the safe and a brooch, a bracelet and ear-rings"; thereupon the said Inspector cautioned the accused and asked him to make a statement in writing to which the accused replied "I will make no statement. Do you want me to hang myself?".That Detective Inspector Lalor at the time he asked the questions had no evidence in his possession and knew of no evidence in the possession of the Gardai implicating the accused in the commission of the crime in question.

• (c) That Detective-Inspector Lalor made the statement"I believe you did it" because of his experience and knowledge of the accused and the nature of the crime in question. The said admissions made by the accused were repeated in greater detail to Sergeant Edward Ryan in the said Station.

• (d) Subsequently after an interval of two hours approximately during which time the accused had been charged and removed to a cell in the said Garda Station he said to the said Sergeant Ryan "Was the jewellery worth £5,000.0.0." to which Sergeant Ryan replied "That is the approximate price we got from the owner and by the way it's sentimental value and he is more than anxious to get it back" to which the accused replied "Leave me out and I will bring it back." That the latter question asked by the accused was asked by him spontaneously and was not prompted in any way by any questions or any conversation...